author: TOWNSEND, Commissioner.

text:
    Ronald J. AVERY and Charlotte Avery, his wife, and James F. Avery and Lou H. Avery, his wife, Plaintiffs-Respondents, v. James B. McHUGH, Trustee in accordance with trust powers in Trust Agreement recorded in Book 183, page 63, in the office of the Recorder of Deeds of Franklin County, Defendant-Appellant.
    No. 32732.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 26, 1967.
    Motion to Transfer Denied Feb. 12, 1968.
    Leo A. Politte, Politte, Moll & Poertner, Washington, for defendant-appellant.
    James L. Anding, Anding & Anding, Pacific, for plaintiffs-respondents.
   TOWNSEND, Commissioner.

Action for breach of warranty of seisin, in which plaintiffs had a verdict for $5,500. From a judgment thereon defendant appeals.

On June 11, 1964, the defendant McHugh, as trustee, executed a general warranty deed covering lands in Franklin County, naming the plaintiffs as grantees therein. A recitation of the complete description of the lands purportedly conveyed is not necessary; we set forth the part thereof which gives rise to the present controversy and italicize for emphasis:

* * * thence south along Qr.Qr. line to the North line of the County Road, thence along said road line and the North line of US. Highway 66 to the point of intersection with the West lme of Eastridge drive and thence North ⅜ * ⅜ »

In September, 1965, the County Surveyor of Franklin County surveyed the locale for the plaintiffs, starting from recognized monuments, and following the above deed description, and prepared a plat thereof which became plaintiffs’ exhibit 6. His plat shows that the county road referred to in the deed runs in a generally northwest to southeast direction, while Highway 66 in this area runs in a generally west to east direction. He testified that the north line of the county road did not intersect with Highway 66 at any point on the tract and that the point on that north line of the county road which approached nearest to Highway 66 was still thirty-two feet north of the north right-of-way line of the highway.

A rough draft of the pertinent parts of the surveyor’s plat follows.

As shown by the plat, the entire area in question lies between Highway 66 and Interstate Highway 44.

Testimony shows that L. P. McHugh died on March 19, 1932, leaving a widow and five children. On February 16, 1933, the Missouri Pacific Railroad executed a quitclaim deed to a part of its original right-of-way described in the following words:

“All that part * * * lying north of the right of way of State Highway Route 66 T.R. through the east 700 feet of the SE14 of the NEJ4 of Section 9, Township 43 North, Range 2 East.”

In that deed the grantee was designated simply as “L.P.McHugh Estate”.

In December 1949 the trustee in bankruptcy of the Missouri Pacific conveyed to Charles and Birteel Slade another part of that railroad’s right-of-way which by its description amounted to a westward extension of that part of the right-of-way conveyed in 1933 to “L.P.McHugh Estate”; its eastern boundary was the line which lay “700 feet westwardly from and parallel with the east line of said Section 9.”

The successive conveyances from Missouri Pacific were thus of lands lying north of Highway 66 and according to plaintiffs’ plat (Exhibit 6) and brief such tracts lay south of the county road.

On April 5, 1954, the widow of L. P. McHugh by general warranty deed conveyed certain lands to James B. McHugh “or” Joseph D. McHugh, trustees, and on the same date the five children of L. P. Mc-Hugh, each describing himself as a joint tenant and not a tenant in common, executed an instrument entitled “Trust Agreement”. In the widow’s deed and the Trust Agreement the lands described are identical. While it is doubtful that the Trust Agreement created a trust, it is clear that it conferred on "James B. McHugh or Joseph D. McHugh as trustees” the broadest of agency powers to sell, convey or lease any of the described real estate. In the widow’s deed and in the trust agreement, that part of the land description, which is significant for present purposes follows:

“Beginning at the Northeast corner of said Section 9; run thence West on section line 20.15 chains to ⅛ ¼ corner; thence South 19.68 chains to the County Road; thence along said road, South 69½ degrees East 8.70 chains; thence South 79½ degrees East 7.58 chains; thence North 88½ degrees East 4.54 chains to the section line-, thence North 24.15 chains to the place of beginning,” (Our emphasis.)

Plaintiffs’ evidence thus discloses, inter alia, the existence of the following tracts of relevant McHugh land:

1.That described in the Trust Agreement which was bounded on the south by the county road. No question has been raised as to the capacity of the Trustee to exercise the power to sell and convey given by the Trust Agreement.

2. All that part of the original Missouri Pacific right of way lying north of Highway 66 and south of the county road through the east 700 feet of the SE14 of the NEJ4 of Section 9.

There was no evidence as to whether or not the “county road” was a dedicated road. There are slight differences of courses and distances between the road as delineated in the trust agreement and that shown on the surveyor’s plat. However there was no contention that the location of the county road as shown on that plat was not the location of the county road on the date of the deed from defendant,— June 11, 1964.

Before proceeding to further consideration of the evidence, we call attention to the mild rebuke administered by the Supreme Court in Hamburg Realty Company v. Woods, 327 S.W.2d 138, 141:

“ * * * In testifying as to locations, courses and distances shown on the maps and photographs, the witnesses were permitted, with some gratifying exceptions, to designate them by pointing to the exhibits and saying ‘here’, ‘from here to here’, ‘then up (or ‘down’ or ‘this way’) to here’, etc., few of which designations are shown in the record or marked on the exihibits. While it appears that the trial judge was able to follow the indications made by the witnesses, it is only by tedious and time-consuming study of the exhibits can the appellate court interpret such testimony with any degree of certainty and very considerable portions of it are wholly meaningless to a reviewing court. We set forth that portion of the evidence that can be interpreted by reference to the exhibits, realizing that much of it will be without meaning to the reader who does not have before him each of the exhibits as the testimony of each of the witnesses given in relation thereto is considered.” (Our emphasis.)

In our present case much more vigorous criticism might well be directed to like uncertainties produced by the manner in which witnesses testified. The record abounds in illustrations of such uncertainties which are emphasized by the lack of any effort by the respective counsel to make the written record resolve the dubieties of the spoken words. Some examples are set out in the footnote.

After the execution of the instruments of April 5, 1954, the named trustee had full power to alienate land designated above as tract 1, which lay to the north of the county road. However the land over which the trustee was given a power of disposition by the Trust Agreement did not include the tract acquired in 1933 and designated above as 2.

Plaintiff’s evidence shows that defendant listed real estate for sale with a Mr. Dailey, a realtor of Pacific, Missouri. At the southeast corner of the tract covered by the trust agreement a large sign, about thirty feet long and five feet high, carried this legend in large letters: “13 acres commercial. Joe Dailey Realty Co.” Superimposed on this sign was another reading “825 Ft. Hi-Way 66 Frontage”, which Dailey had caused to be painted. Dailey marked the position of the combined sign on the plat which was plaintiffs’ exhibit 6, showing that the sign was in the corner on the north side of the county road. When asked where he got his information relating to the 825 foot frontage, Dailey could not remember. The larger sign (“13 acres” etc.) was an old sign marking the former entrance to a subdivision lying along Eastridge Drive. The combined sign was at the location above designated at the time plaintiffs made their purchase. One of the plaintiffs testified that he relied on the sign in making the purchase. He testified further that the first time he had ever seen defendant was in the courtroom on the day of trial and that he had had no conversation with Dailey concerning the tract. Asked whether any representations as to highway frontage were made to him, the witness stated: “None other than what was on the sign.”

The conveyance of June 11, 1964, was preceded by an earnest money contract but no copy of that contract could be found and there was no testimony as to its precise contents. Mr. Noonan, a real estate agent, was contacted by plaintiff Mrs. Avery who came to his office “looking for an area for a trailer camp.” He showed her an area “that was listed by Dailey * * *. And from that point I was helping her and Dailey * * * get together on it * * He testified that in the earnest money contract there was nothing said about the land on the south side of the county road nor was anything there said about Highway 66 frontage.

The only one of the plaintiffs who testified was permitted to state, over objection, that he believed that he was getting 825 feet of highway frontage by the deed in question. He testified as to his purpose in making the purchase, the partial frustration of the purpose in not getting highway frontage and the extent of the improvements made before discovery of the lack of frontage.

We conceive that, in such an action as this for breach of warranty of seisin, the burden rests upon a plaintiff-grantee, after establishing the identity of the real estate purportedly conveyed by the granting clause of the deed, to show what portion of that identified real estate he did not take by virtue of the deed.

Here, plaintiff’s petition alleged the covenant of seisin wherein defendant “covenanted that he had the very estate, both in quantity and quality which his deed purported to convey” and for breach thereof alleges that “the defendant at the time of said conveyance was not seized of said estate, but that the beneficiaries under the purported Trust Agreement recorded in Book 183, page 63 in the office of the Recorder of Deeds of Franklin County were in fact seized of a part of said lands and Charles Slade and Birteel Slade, his wife were in fact seized of another part of said lands.”

If by this allegation of breach the plaintiff had intended to assert that defendant was not seized of the lands described in the Trust Agreement the fact of his lack of seisin would be immaterial because by the trust agreement he was given full power to sell and convey as the agent of all the signatories to that agreement. His personal lack of seisin would in no way detract from the seisin of his principals for whom he acted under the trust agreement in making conveyance of lands covered by that agreement. Therefore, there was no breach of the warranty of seisin insofar as the lands described in the Trust Agreement are concerned.

However, by alleging a breach in the form here used, namely, that a part of the deed-designated real estate was in the seisin of the five McHugh heirs and the Slades, plaintiff reveals his theory of the case. In joining the title of the five McHughs and the title of the Slades in the allegation of •what plaintiff did not get plaintiff is, we believe, referring to the titles derived from the Missouri Pacific.

In thus asserting a breach because plaintiffs did not acquire title to the lands derived from the Missouri Pacific, plaintiffs are asserting in this back-handed way that the description in the deed of June 11, 1964, includes the lands derived from the Missouri Pacific both by the “L.P.McHugh Estate” and by Mr. and Mrs. Slade.

Can those tracts conveyed by the Missouri Pacific be brought within the ambit of these words: “thence along said road line and the North line of U.S. Highway 66”? The “said road line” referred to is plainly the north line of the county road. In following the call of the deed the imaginary traveler starting at the “Qr.Qr. line” on the west has no need to use any course other than that along the north line of the county road in order to reach the stated objective. Following that course it is possible to proceed eastwardly along “said road line” alone to the designated point of intersection with Eastridge Drive. “Said road line” and the north line of U.S. Highway 66 are not continuous. As one follows the call of the deed and proceeds along the north line of the county road in the direction of the designated intersection he finds himself at all times a considerable distance north of the north line of Highway 66.

The great difficulty in giving meaning to “and the North line of U.S. Highway 66” lies in the discontinuity of “said road line” and the north line of Highway 66. The deed description at first reading would seem to indicate that the north road line of the county road ran into or became coterminous with the north line of Highway-66 ; however the evidence is clear that such is not the fact. If the weary traveler desires to follow the directions of the deed description, he is given no instructions as to course in getting from “said road line” to the north line of Highway 66. The deed description being so worded it shows plainly the scrivener’s assumption that “said road line” and the north line of Highway 66 are continuous. We know that the assumption is false. Accordingly, an impossibility has been injected into the course description. Being an impossibility that purported part of the course description has no meaning here, and accordingly cannot be regarded as describing any part of the boundary of the land purportedly conveyed to plaintiffs.

Eliminating such surplusage from the description of the lands conveyed, there remains no basis for a charge of breach of warranty of seisin. The plaintiff has failed to show that the deed description comprehends more land than that subject to the terms of the Trust Agreement. Unquestionably the deed has conveyed to plaintiffs all the real estate which defendant was empowered to convey by that agreement. Hence there was no proof that title to the land described in the deed was not conveyed to plaintiffs. Plaintiffs did not present a submissive case.

At the close of all evidence defendant moved for a directed verdict which was overruled. After judgment defendant filed his motion to set aside the verdict and the judgment and to enter judgment for defendant in accordance with his motion for a directed verdict, and, in the alternative, for a new trial.

The judgment is reversed and the cause is remanded to the Circuit Court with directions to enter judgment for the defendant in accordance with defendant’s motion for a directed verdict.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, the judgment is reversed and the cause is remanded to the Circuit Court with directions to enter judgment for the defendant in accordance with defendant’s motion for a directed verdict.

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

      . The record is barren of any reference to the contents of L. P. McHugh’s will or to the administration of his estate.

      . The grantees are described as “trustees in accordance with the trust powers in Trust Agreement as of April 5, 1954 * * *

      . We forego any consideration of defendant’s position as a mere agent, rather than as a title-holding trustee, and proceed to treat him as does • plaintiff, i.e., as a genuine trustee. In this connection we note in passing that defendant, by virtue of the widow’s warranty deed, took whatever interest the widow had in the lands named therein. In addition, defendant was one of the five joint tenants who executed the Trust Agreement.

      . “Q. Did you measure this line? A. Yes, sir, we did measure this line.
      “There is a stake there, yes, sir. And there is one here.”

      “I didn’t make the survey of this area up in here.”

      “I didn’t measure this line here.”

      “I knew the length of this from the survey that I made” [before].
      “On this here street here, which at this time was a county road.”
      “He owned down in here.”

      “It comes over the hill in here.”

        “This part in here.” “Right here.” “Right there.”

      . The deed of the McHugh widow also did not relate to tract 2.

      . No other cause of action is asserted.

      . In the course of a colloquy plaintiff’s counsel stated: “* * * I alleged in my petition that part of the land which the warranty deed purported to convey to Mr. Avery was in fact land belonging to Charles Slade and Birteel Slade.”


source: Caselaw Access Project

author: CLEMENS, Commissioner.

license: Public Domain

text:
    Ralph C. SMITH, d/b/a Smith Company Realtors, Plaintiff-Respondent-Appellant, v. Alvin J. PIPER and Marjorie C. Piper, His Wife; and Harry Fine and Sadie M. Fine, His Wife, Defendants-Appellants-Respondents.
    Nos. 32625, 32626.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied Dec. 26, 1967.
    Application to Transfer Denied Feb. 12, 1968.

      Stemmier & Stemmier, St. Louis, for appellants-respondents Piper.
    Newmark & Baris, St. Louis, for appellants-respondents Fine.
    Shifrin, Treiman, Schermer & Susman, Sylvan Agatstein, St. Louis, for respondent-appellant Smith.
   CLEMENS, Commissioner.

Plaintiff real estate broker sued the sellers (defendants Harry and Sadie M. Fine) and the buyers (defendants Alvin J. and Marjorie C. Piper) for a commission, contending that after he had been employed and brought the parties together they closed the $60,000 sale clandestinely. Plaintiff got a verdict and judgment for $3,600 actual and $1,000 punitive damages. The trial court denied defendants’ after-trial motions as to actual damages but granted a new trial on the issue of punitive damages. Both sides have appealed. We relate the verdict-consistent evidence.

Plaintiff’s salesman Thomas R. Nash called on Mrs. Piper (in connection with another matter) and learned that she and her husband wanted to buy a house. She said they wanted a four-bedroom home on a two-acre lot — the kind located on Country Aire Drive in St. Louis county — and would pay as much as $65,000. Mr. Nash had nothing like that listed for sale but told Mrs. Piper he would try to find something.

That same day Mr. Nash began canvassing the Country Aire neighborhood looking for a house that fit Mrs. Piper’s description. His search ended at the Fine home, where he stated his business and asked Mrs. Fine if the house was for sale. Coincidentally, Mrs. Fine had just been talking with her daughter about their year-long efforts to sell the house. She told Mr. Nash she and her husband had hoped to find a buyer the very next week, when Mr. Fine would be on vacation. Mr. Nash made notes as Mrs. Fine showed him through the house. She told Mr. Nash she could not set a price but her husband would call him the next morning.

As promised by his wife, Mr. Fine phoned Mr. Nash, saying they wanted "$60,000 net” for their home. Mr. Nash told him the prospective buyer (whom Nash did not name) was willing to pay as high as $65,000. Mr. Nash asked for and was given permission to show the Fine home to the prospective buyer at a $65,000 asking price. Mr. Fine suggested a time the next afternoon. Mr. Nash immediately went back to Mrs. Piper to arrange for an inspection of the Fine home. When Mr. Nash described and identified the property, Mrs. Piper told him that she and her husband knew the Fines and their home; that they had tried to buy it a year before but the price was too high — $72,000. Mr. Nash assured her the Fine home could be bought for $65,000, and she promised to call him about inspecting the house as soon as her husband returned from out of town, in four days.

Immediately after this conversation with Mrs. Piper, Mr. Nash phoned the Fines, telling them “I would like to have a written thirty-day listing to protect my interest and * * * verification that would allow me to show the home.” The Fines agreed and told Mr. Nash he could come by for that purpose the next morning. When Mr. Nash arrived, Mr. Fine acknowledged his promise of the day before to give him a written listing. Mr. Fine said, however, he now had a prospect of his own and did not want Mr. Nash to show the house to anyone. He told Mr. Nash that a lady (Mrs. Piper?) had called him about the house just the day before. Later, Mrs. Piper told Mr. Nash she and her husband were no longer interested in the Fine home.

Those were the last words Mr. Nash had with Mrs. Piper and the Fines. But two months later he learned that the Fines had sold their home to the Pipers, for $60,000. The reasonable value of plaintiff’s services for procuring a buyer for the Fine home was $3,600.

We first consider the Fines’ liability for $3,600 actual damages. Their main point is that the evidence failed to show they agreed to employ plaintiff to produce a buyer for their home. To establish such an agreement between a broker and an owner it must appear that the owner authorized the broker to produce a buyer and the broker agreed to seek a buyer, and that the circumstances gave the owner reason to think the broker’s services were not to be gratuitous but, instead, with expectations of compensation from the owner. See Ballentine v. Mercer, 130 Mo.App. 605, 109 S.W. 1037 [5-7], where the court so held and commented: “It is customary for brokers to solicit employment. Their knowledge of the conditions of supply and demand, relating to the commodities in which they deal and of persons who are in the market to buy and sell, is a part of their stock in trade, and is an important factor in giving value to their services. Generally they do not work except for pay, and, when they tender their services, it is commonly understood the usual commission will be demanded if the services are accepted and prove beneficial.” If this relationship is shown and if the broker is the efficient procuring cause of the sale, he is entitled to reasonable compensation. Hoover v. Whisner, Mo.App., 373 S.W.2d 176 [4-6, 8, 9]; Longmire v. Diagraph-Bradley Stencil Mach. Corp., Mo. App., 176 S.W.2d 635[1-5].

From the facts related here the jury could have found: In the course of his business Mr. Nash discovered the separate facts that (1) the Fines wanted to sell their house for $60,000 net, and (2) the Pipers wanted to buy just that kind of house and would pay $65,000; that the Fines wanted Mr. Nash to produce such a prospective buyer and knew Mr. Nash would expect to be paid if the sale was closed; that the two separate facts merged when Mr. Nash told Mrs. Piper the Fine home could be bought at the Pipers’ price, thereby making Mr. Nash the efficient procuring cause of the eventual sale; and that $3,600 was reasonable compensation for plaintiff’s services. This evidence entitled plaintiff to recover from the Fines.

The Fines cite authority holding that if a broker is a mere volunteer he is not entitled to compensation. True, but a volunteer broker is one who proceeds without an express or implied contract. Lewis v. Thompson, 231 Mo.App. 321, 96 S.W.2d 938[1-5]; Windsor v. International Life Ins. Co., 325 Mo. 772, 29 S.W. 2d 1112[1, 2]. We have held, however, that the evidence warranted a finding of an implied contract whereby the Fines promised to pay plaintiff if he produced a buyer. So, plaintiff was not a mere volunteer.

The Fines raise other points. They say that even if they offered to compensate plaintiff their promise was conditional, and their offer was withdrawn before plaintiff fulfilled the condition of the offer. They cite no authority. They argue that the only authority they gave Mr. Nash was to show their house. That is not the evidence. They also argue that an offer to pay a commission may be withdrawn anytime before the sale is consummated. That is not the law. Weisels-Gerhart Real Estate Co. v. Epstein, 157 Mo.App. 101, 137 S.W. 326[2]; Glassman v. Fainberg, Mo.App., 35 S.W.2d 950 [8],

The Fines’ last point is that Mr. Nash failed to tell them he was also acting as agent for Mrs. Piper; that this was a failure to disclose a dual agency and he thereby forfeited his commission. The Fines neither pleaded nor submitted this as a defense. Therefore, it can be effective only if plaintiff’s conduct, according to his own evidence, defeats his claim as a matter of law. Shepley v. Green, Mo. App., 243 S.W.2d 772[1-6]; McClure v. Ullmann, 102 Mo.App. 697, 77 S.W. 325 [2]. The evidence on this was that Mr. Nash truthfully told the Fines he had a prospective buyer willing to pay $65,000. He did not tell them — nor did they ask — the name of the prospect. Thus, the Fines’ complaint is not one of concealment or misrepresentation but merely non-disclosure. The issue boils down to this: Was Mr. Nash duty-bound to volunteer the identity of the prospect, and did his failure to do so release the Fines from their obligation to pay him? We say no.

By the very nature of a broker’s work he must deal with both buyers and sellers. There is nothing inherently wrong in non-disclosure of identity. The defense of dual agency— to defeat a broker’s compensation — is based on misconduct, fraud, or bad faith that results in prejudice to his principal. Mere failure to identify a purchaser, without more, will not defeat a broker’s claim for compensation. See Francis v. Saleeby, Mo. App., 282 S.W.2d 167[7], and the cases cited there. We reject the defense of dual agency.

Accordingly, plaintiff is entitled to judgment against the Fines for actual damages. This leads to the question of the Pipers’ liability for actual damages.

The Pipers contend the court should have granted their after-trial motion for judgment. We agree. Plaintiff’s verdict directing instruction against the Pipers required the jury to find that they authorized Mr. Nash to find a house for them “under such circumstances as to show an intention to charge therefor, and under such circumstances as to give defendants [Pipers] reason to think plaintiff expected to be paid.” Yet Mr. Nash’s testimony refuted both those necessary facts. He said that in none of his conversations with Mrs. Piper did either of them mention payment for finding a house for the Pipers; that he had never known of a case where a purchaser paid a commission; that he expected to be paid by the sellers, in accordance with the common practice. Plaintiff’s case against Mr. Piper was even weaker. He was out of town and Mr. Nash never talked with him; nor does the record show Mr. Piper knew anything of Mr. Nash’s activities in the transaction.

Plaintiff argues however that the evidence warrants inferences that the Pipers conspired with the Fines to induce a breach of his contract for a commission. (See Downey v. United Weatherproofing, 363 Mo. 852, 253 S.W.2d 976 [4-9]; and 86 C.J.S. Torts § 44.) Plaintiff did plead tortious conspiracy, but he submitted his case on breach of contract. In weighing the sufficiency of plaintiff’s case we look only to the submitted grounds of recovery; other pleaded grounds for recovery are considered abandoned. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91 [4-5]; Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124[1], We decline to decide liability on an abandoned allegation. The trial court should have granted the Pipers’ after-trial motion for judgment as to actual damages because plaintiff failed to show an implied contract with them.

As said, the plaintiff got a verdict and judgment for $1,000 punitive damages against all four defendants. The trial court granted them a new trial on the ground the evidence did not support plaintiff’s punitive damage instruction. The plaintiff appeals from that order.

This punitive damage issue will be considered separately as to the Pipers and the Fines. Our decision that plaintiff did not make a case against the Pipers for actual damages automatically frees them from liability for punitive damages. This, because an award of actual damages is a necessary foundation for punitive damages. Landum v. Livingston, Mo.App., 394 S.W. 2d 573 [4]; 22 Am.Jur.2d, Damages, § 241.

As to the Fines, the plaintiff’s submission for punitive damages was hypothesized on breach of an implied contract: that if they authorized Mr. Nash to produce a buyer for their house; that he did so under circumstances showing intention for payment; that the Fines did not pay him; and that if their conduct in those matters was willful, wanton or malicious then the jury could award punitive damages. The plaintiff has cited no authority to sustain his right to punitive damages, and we find none. But for narrow exceptions not present here, our courts have repeatedly held that punitive damages do not lie for breach of contract. Norris v. Letchworth, 167 Mo.App. 553, 152 S.W. 421 [3]; Williams v. Kansas City Public Service Co., Mo., 294 S.W.2d 36[7]; 22 Am.Jur.2d, Damages, § 245.

Since the plaintiff was not entitled to punitive damages from any defendant, the trial court should not have submitted that issue. It would be useless to grant a new trial, as ordered below, and we must now render the judgment the trial court should have rendered. Civil Rule 83.13(c), V.A.M.R.; Wittels v. Jack Dubinsky & Sons, Mo.App., 343 S.W.2d 6.44 [4] ; Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066 (banc), 238 S.W. 2d 426[6].

It follows that the judgment and the order granting a new trial should be reversed, with instructions to enter a new judgment in favor of defendants Alvin J. Piper and Marjorie C. Piper, and in favor of plaintiff against defendants Harry Fine and Sadie M. Fine for $3,600, all costs to be taxed one-half against plaintiff and one-half against defendants Harry and Sadie M. Fine.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment and the order granting a new trial are hereby reversed, with instructions to enter a new judgment in favor of defendants Alvin J. Piper and Marjorie C. Piper, and in favor of plaintiff against defendants Harry Fine and Sadie M. Fine for $3,600, all costs to be taxed one-half against plaintiff and one-half against defendants Harry Fine and Sadie M. Fine.

ANDERSON, P. J., WOLFE, J., and JOHN C. CASEY, Special Judge, concur.


author: J. MORGAN DONELSON, Special Judge.

text:
    John A. YOUNG, Sr., Administrator of the Estate of Flo Young, Deceased, Appellant, v. Frank KNELL, Administrator of the Estate of Maude L. Baer, Deceased, and Farm and Home Savings Association, a corporation, Respondents.
    No. 24651.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.
    Application for Transfer Denied Feb. 12, 1968.

      Don W. Kennedy, Kennedy & Tindel, Nevada, for appellant.
    James A. Dunn, Carthage, for respondents Frank Knell, Administrator, Estate of Maude L. Baer, deceased.
   J. MORGAN DONELSON, Special Judge.

This declaratory judgment action was brought to determine the ownership of an account in the Farm and Home Savings Association of Nevada, Missouri, hereinafter referred to as the Association, and of a life insurance policy issued by the Equitable Life Assurance Society of the United State. Prior to trial, however, the life policy issued on the life of Flo Young, in the amount of one thousand ($1,000.00) dollars was delivered to the named beneficiary, Maude L. Baer, defendant and respondent herein. The proceeds thereof were subsequently paid to her. Plaintiff dismissed his action as to the insurance company. This issue is no longer a part of the case and will only be considered as it may reflect upon the issue of the ownership of the disputed account for ten thousand ($10,000.00) dollars plus interest. The claimants to the account are Plaintiff John A. Young, Sr., the administrator of the estate of Flo Young, deceased, hereinafter referred to as appellant, and Maude Baer, the named surviving co-owner. The trial court rendered judgment for Mrs. Baer. We have jurisdiction because the total amount in question, including interest to date of judgment does not exceed $15,000.00. Article 5, Sections 3 and 13, Constitution of Missouri, 1945, V.A.M.S.; Section 477.040, V.A.M.S., as amended, Laws of 1959; Berry v. Crouse, Mo.App., 370 S.W.2d 724.

Flo Young, a spinster, and her mother Ella F. Young, lived together in Nevada, Missouri, until the death of the mother in 1948. Miss Young thereafter lived alone at the same address until her unexpected death on December 29, 1964, at almost 74 years of age. The only immediate surviving members of her family were her sister, Bessie Jones, Bronaugh, Missouri, and her brother, John A. Young, Sr., Raytown, Missouri, who is the appellant herein.

Upon a search of Miss Young’s home the appellant and his wife found in her bedroom a locked trunk containing a passbook for the disputed account, the insurance policy above mentioned, her social security card, the deed to her property, and other papers. Letters of Administration were granted to John A. Young, Sr. on the estate of Flo Young, deceased, on January 4, 1965, and the account above mentioned and the insurance policy were inventoried as a part of her estate. These items were retained by the appellant and his attorney. Maude Baer was not notified of the death of Miss Young or of the location and retention of the passbook or insurance policy until appellant’s attorney’s visit on October 16, 1965.

After the death of Miss Young’s mother in 1948 the relationship between Miss Young and her family became quite strained and was characterized as bitter. She wanted nothing to do with her family. There was no contact of any kind between them for over 15 years. Appellant and his wife testified, however, that in 1963 and 1964 they did visit her 3 or 4 times, and that the relationship between them improved. Appellant’s wife described Flo Young as a very frugal person who never threw away anything, and she never discussed her business with people.

At the time of the death of Miss Young’s mother there were two certificates in the name of Flo Young or Ella F. Young, or survivor, issued by the Farm and Home Savings Association. On March 10, 1951, on the application of Flo Young, the survivor, the certificates were cancelled and a new account opened and a passbook issued in the names of “Miss Flo Young and Mrs. Maude Baer, or either or survivor.” The initial investment account was in the amount of $1435.00, which was the amount of the two original certificates issued to Flo Young and her mother, Ella F. Young. Other deposits to this account were made as follows: July 1, 1957, $1565.00; January 3, 1958, $100.00; December 31, 1958, $900.00; April 30, 1959, $2790.00; May 26, 1959, $2780.00; July 6, 1959, $200.00; and January 6, 1960, $230.00, for a total of $10,000.00. No deposits were made thereafter. It was conceded that Maude Baer contributed no funds to this account. No withdrawals were ever made, either by Miss Young or Mrs. Baer.

Miss L. F. Bridges, assistant secretary and an employee for 55 years of the Association, testified that only one passbook was issued regardless of the number of names listed on the account and passbook. No withdrawals could be made without the passbook, but deposits could be made without it. The records of the Association showed that no withdrawals were made, and the passbook had been presented to the Association each time a deposit had been made. Only one address was required for their records, and only the address of Flo Young was shown on the account, passbook and dividend checks. The dividend checks were issued semi-annually in the name of Miss Flo Young and Mrs. Maude Baer or either or survivor. All dividend checks were endorsed by Miss Flo Young only. The endorsement of either Miss Young or Mrs. Baer would have been honored by the Association. Later, when federal rules and regulations required the listing of social security numbers for all accounts by the Association, an application was mailed to Flo Young at her home address in Nevada, Missouri, which was subsequently returned with the social security number of Miss Young. This number was shown on the records of the Association and furnished to the appropriate governmental agencies. Here again the Association required only one social security number for each account regardless of how many names were listed on ie account. No separate application for hei social security number was mailed to Mrs. Baer, and she was neither requested nor required to furnish her address to the Association. Miss Bridges stated that she had seen Miss Young in the Association offices from time to time, but Miss Young always handled transactions directly with the cashier, and not with her. She did not know Mrs. Baer and she did not have any knowledge that Mrs. Baer had been in the Association offices during this period. Burton Hoffman, cashier for 14 years of the Association handled some of the deposits for Miss Young when she came to the Association offices, but he did not handle all transactions for her. Miss Young had the passbook with her when he assisted her. Helen Margaret Warren, assistant cashier and an employee of the Association for 20 years, knew Miss Young and lived near her. She had cashed some of the dividend checks for her, but Miss Young’s favorite employee was Fenton Cleveland, now deceased, who also handled the original application in 1951. She could not say whether Mrs. Baer had been in the Association offices or not, or whether Miss Young had the passbook while in the Association offices. It was stipulated that Maude Baer never received any interest checks on the account, but that they were collected and appropriated by Miss Young. It was further agreed that Flo Young was the owner of the life policy heretofore mentioned on February 26, 1951, which was the date she changed beneficiary of said policy from her mother to Maude Baer, and only a few days before the investment account was established.

Maude Baer and her husband formerly lived in Nevada, Missouri, but about fifteen years prior to trial date they had moved to Carthage, Missouri. Mrs. Baer was a chum, good friend for forty years of Miss Young. Since she had moved to Carthage she had continued some contact with her friend in Nevada.

On October 16, 1965, before this action was filed on December 2, 1965, appellant’s attorney contacted Mrs. Baer at her home in Carthage. He testified that the purpose of his trip to her home was to determine whether or not she had any interest in the account or whether he would claim it for the estate. He questioned and talked to her about the account and her relationship with Miss Young for forty-five minutes to an hour or longer. A typewritten questionnaire consisting of fifteen questions, prepared by him was submitted to Mrs. Baer at that time. The answers to the first five questions were in the handwriting of the attorney, and the balance of the -answers and statements were in that of the defendant. He described in detail on direct and under vigorous cross-examination, the circumstances under which it was prepared, answered and executed. He further stated that they visited and talked about the questions and answers, but he did not explain the questions or define any of the words used for Mrs. Baer. The exhibit was offered and admitted into evidence as an admission. It is as follows:

“QUESTIONNAIRE REGARDING JOINT SAVINGS AND LOAN ACCOUNT
1) Name of association: Farm & Home Savings Association
2) Name of deceased co-owner: Flo Young
3) Name(s) and address(es) of surviving co-owners:
Maude Baer 1145 South Maple, Carthage, Mo.
4) Date of death of decedent: Dec. 29,1964.
5) Name of administrator of decedent’s estate: John A. Young, Sr.
(Following questions to be answered by surviving co-owner)
6) State if you were acquainted with the decedent, and the nature of your acquaintance? Yes good friends.
7) Did the decedent ever tell you of this account? Yes
8) Did you learn of it otherwise during her lifetime ? No
9) If answer to (8) is ‘yes’, state how you learned of it and when.
Flo told me about it years ago she did not how much it was. This was before we moved to Carthage — 1955
10) Did you ever at any time have the passbook in your possession? No
11) If answer to (10) is ‘yes’, explain.
12) Did you ever deposit any of your own money in the account? No
13) If answer to (12) is ‘yes’, explain.
14) Did you ever see the passbook during decedent’s lifetime? No.
15) When did you first learn of the existence of the account, and how? Flo told me. I never heard of it any more till Mr. Kennedy told me.
Signed this 16 day of Oct. , 1965.
Maude L. Baer
Flo told me she wanted me to Surviving Co-Owner have this when she was gone. I never got any interest.”

The defendant also was permitted to explain the circumstances under which the exhibit was obtained and to explain her answers thereto. She stated that her husband had died only about two months before the attorney’s visit, that she was nervous and sick from this as well as excited over the “deal”, that she had never seen nor known him before this date, and that he was not there at her invitation or request. She further stated that she did not understand all the words or the questions themselves. She did admit that she neither asked nor received any explanations. She further testified that some of the answers and information given were incorrect. Defendant’s attorney then asked the court’s permission to ask Mrs. Baer questions to enlarge upon the answers given. Appellant objected to such further testimony under the dead man’s statute, which was sustained. On cross-examination by appellant Mrs. Baer subsequently testified in regard to the exhibit as follows:

“Q. On 9, you say ‘Flo — ’, here is the question, it says, ‘If the answer to (8) is “yes”, state how you learned of it and when.’ You said, ‘Flo told me about it years ago’? A. Yeah.
Q. Is that correct? A. Yes, sir.
Q. She did not say how much it was? A. No, not then she didn’t. Later on she did.
Q. ‘This was before we moved to Carthage — 1955.’ A. That’s right. * * * and then,
Q. Is that answer correct? A. Flo told me about it years ago. She did not know how much it was but she did later on, she told me it was ten thousand dollars.
Q. This was before you moved to Carthage? A. Yes, that’s right.
Q. The next question was ‘Did you ever at any time have the passbook in your possession?’ A. I said ‘No’, but I did have, I did have it.
Q. You did write ‘No’ down there? A. Yes, I had it.”

The answers to appellant’s questions were received without objection or request that any portion be stricken. It is obvious that appellant proceeded to elicit on cross-examination incompetent evidence in addition to Mrs. Baer’s version of what was said and done when she answered and executed the exhibit or questionnaire or in explanation of her answers. This was done even though the court had sustained on direct examination appellant’s objection that Mrs. Baer was an incompetent witness to testify as to any conversation, transactions, or other surrounding circumstances taking place between her and Miss Young. We can not say that the trial court committed error in receiving and considering this evidence under the state of the record. In Re Reichelt’s Estate, Mo.App., 179 S.W.2d 119; Mason v. Mason, Mo., 231 S.W.971; Section 491.010 RSMo 1959, V.A.M.S. It is too well established to require citation that the weight given to this evidence is for the trial court.

Accounts of this type are governed by Section 369.150, V.A.M.S. It provides, in effect, that an account in a savings and loan association established in the name of two or more persons and payable, together with any deposits thereto, to any one or more of them or the survivor or survivors of them, shall become the property of such persons as joint tenants. It also shall be held for their use, and may be paid to any person named therein, or the survivor’ or survivors of them. The statute gives rise to a presumption that an account made within its purview becomes the property of those named as joint tenants with rights of survivorship, and in the absence of competent, contrary evidence actually fixes ownership. Jenkins v. Meyer, Mo., 380 S.W. 2d 315; In re Patterson’s Estate, Mo., 348 S.W.2d 6; Weber v. Jones, 240 Mo.App., 914, 222 S.W.2d 957. We hold that the form of the account was in conformity and compliance with Section 369.150, supra, and Mrs. Baer is entitled to the benefit of the statutory presumption.

The question raised on this appeal is whether appellant presented substantial evidence that, in fact, no joint tenancy was intended or created, and therefore the trial court was in error in rendering judgment for defendant. We hold that appellant did not present substantial evidence to rebut or overcome the presumption that Mrs. Baer, as the surviving joint tenant, is the owner of the disputed account. Appellant in his brief cites only one case, Jenkins v. Meyer, supra. He urges that it is directly in point and decisive here. The Jenkins case also involved a dispute over ownership of certain deposit certificates in two banks and a building and loan association. The form of two of the five certificates was in compliance with the statute involved, but the other three were not. Amanda Berndt, age 87, died within about two years from the time the first certificates were issued. She had been declared an incompetent about eleven months before she died, leaving no known surviving relatives. The claimants were her estate and the named co-payees. Miss Berndt had a business agent who acted under her oral instructions and also a power of attorney executed by her. He testified that from the beginning she had instructed him that her money was to be invested “in her name and with provisions for payment at her death. But during her lifetime, she was to have absolute control and ownership over it and receive the income from it.” (emphasis supplied). She wanted to retain control over her property and receive the income as long as she lived. Until she subsequently was adjudged an incompetent, she did so. The business agent made reports to her as to where and how her property was invested. There was no evidence that the named co-payees had any knowledge whatsoever, prior to her death, of the existence of the certificates or that they were named as co-payees. She had received all the income, and it does not appear that the names of the co-payees were on any interest or dividend payment of income. The court correctly held that the estate had established by substantial evidence that no joint tenancy with right of survivorship was created or intended to be created as to any of the certificates. There are several significant differences between the facts of the Jenkins case and this case. There is no evidence that Miss Young during her lifetime instructed the Association or told anyone else that she was to have absolute control and ozvnership of the account or the income from it. It is clear that she was not on good terms with her relatives, and equally clear that she did change the named beneficiary on her insurance to Mrs. Baer. At about the same time she did create the account in statutory form for the benefit of Mrs. Baer. Although she was mentally competent and capable of making other dispositions of her insurance and the account, she kept them intact for years without change. It is also in evidence that Mrs. Baer was told by Miss Young of the account, including the amount thereof, and that her name was on the account. She also, on at least one occasion, had physical possession of the passbook for the account. The principles of law enunciated in the Jenkins case are applicable, but the factual differences cause us to reach a contrary result. The judgment of the trial court was for the right party.

After the trial and appeal Maude L. Baer died, and by order of this court Frank Knell, executor of the estate of Maude L. Baer, deceased, had been substituted as a party defendant and respondent in her stead.

The judgment is modified by substituting Frank Knell, executor of the estate of Maude L. Baer, deceased, as the defendant, and, as so modified, is affirmed.

All concur.


text:
    Ewell LITTELL, Jr., Plaintiff-Respondent, v. BI-STATE TRANSIT DEVELOPMENT AGENCY, a Corporation, Defendant-Appellant.
    No. 32714.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 26, 1967.
    Motion to Transfer Denied Feb. 12, 1968.

      John D. Schneider, St. Louis, for appellant.
    James F. Koester, St. Louis, David G. Dempsey, Clayton, for respondent.
   CLEMENS, Commissioner.

The plaintiff got a verdict and judgment of $5,000 for personal injuries and $1,000 for property damages from a collision between his car and defendant Bi-State’s bus. The defendant appeals.

Defendant contends the trial court erred in (1) denying voir dire examination to discover bias against plaintiff’s obligation to prove negligence, (2) refusing to let defendant read, as admissions against interest, allegations plaintiff had made against a co-defendant, (3) permitting plaintiff to argue injuries unsupported by evidence, and (4) allowing excessive damages.

Voir Dire Examination

Plaintiff pleaded and later submitted defendant’s negligence in failing to keep a lookout. On voir dire defendant asked:

“[Is there] anybody on the panel who feels that they could not sit on this case, they feel that their feelings concerning the law is such that they could not give effect to the law that is up to the plaintiff to prove that my client was negligent, that is, it’s up to the plaintiff that the burden of proof is on the plaintiff to prove negligence? Anybody who feels that way? Anybody who feels that he would not give

When plaintiff objected defense counsel explained to the court that he was not asking for a commitment from the veniremen, but did want to know whether any of them had personal feelings against the proposition that a plaintiff has to show the defendant is negligent before plaintiff can recover. The court sustained plaintiff’s objection but did let defendant ask whether the veniremen would have any compunction in following the law as thereafter declared by the court.

The issue is this: On voir dire may a defendant ask the panel whether the existing state of their minds is such that they could not give effect to the law placing the burden on the plaintiff to prove defendant’s negligence? Our answer will depend on a litigant’s right to discover the existence of bias, and the limitations imposed on that inquiry to prevent counsel from using the question to mask an argument, to arouse sympathy, to get jurors to speculate on contingencies, or to commit them to a verdict.

The constitutional right to a trial by jury would be a mockery of justice if it did not guarantee a jury with minds free of bias. As said in Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023 [2], 103 A.L.R. SOS : “If for any reason, whether statutory or not, a prospective juror is not in a position to enter the jury box with an open mind, free from bias or prejudice in favor of or against either party to the cause, and decide the case upon the evidence adduced and the law as contained in the court’s instructions, he is not a competent juror.”

Since bias often lies deep within the minds of prospective jurors, counsel should be allowed a wide latitude to expose that bias. The cited cases — and others collected in 18 Mo.Digest, Jury, 131 — support the statement made in 31 Am.Jur., Jury, § 139:

“A wide latitude is allowed counsel in examining jurors on their voir dire. The scope of inquiry is best governed by a wise and liberal discretion of the court, but the adverse litigants should be given the right to inquire freely about the interest, direct or indirect, of the proposed juror, that may affect his final decision. Thus, reasonable latitude should be given parties in the examination of jurors to gain knowledge as to their mental attitude toward the issues to be tried for the purpose of aiding them in striking jurors, if they are not successful in challenging them for cause. However, as a general rule, the examination of jurors on voir dire should be restricted to questions which are pertinent and proper for testing the capacity and competency of the juror. An examination of a prospective juror on his voir dire is proper so long as it is conducted strictly within the right to discover the state of mind of the juror with respect to the matter in hand or any collateral matter reasonably liable to unduly influence him, and questions which go primarily to the ascertainment of any prohable bias or ground of incompetency, as a basis of a challenge for cause, or possibly of a peremptory challenge, are permissible.” (Our emphasis.)

This principle has been followed to allow questions about the states of jurors’ minds on a variety of subjects — states of mind that counsel believed might affect a prospective juror’s ability to dispassionately reach a verdict based on the evidence and the law of the case. Thus, in civil cases it is proper to probe the minds of prospective jurors to discover prejudice because of sympathy for a child, racial bias, the large amount sued for, social or business relations, or holding a policy of insurance. Similarily, in criminal cases this right to discover bias is properly invoked to discover conscientious scruples against the death penalty, convicting on circumstantial evidence, and the defenses of insanity and self-defense. And a defendant in a criminal case may seek to determine whether prospective jurors have any fixed opinions against the principle of presumption of innocence.

We believe defendant’s voir dire question came within the scope of properly discoverable bias — whether the prospective jurors’ feelings were such that they could not give effect to the law that the burden of showing negligence was on the plaintiff. Several factors bear out the possibility of such bias. The defendant was a large corporation being sued by a working man. It is general knowledge that some injuries, like those to workmen, may be compensable regardless of fault. The existence of liability insurance is general, and often misunderstood to afford compensation regardless of fault. Some of the veniremen may have had so firm a belief that a person injured by a bus should be compensated that it would prevent them from returning a verdict against the injured plaintiff even though defendant was not negligent. All those beliefs are unfounded and unreasonable, but we cannot say they do not exist in the minds of some prospective jurors. The point before us is whether the defendant was entitled to discover whether that bias did exist. The wide latitude allowed litigants to discover bias demanded that the defendant, in the interest of securing a fair and impartial jury, be allowed to make proper inquiry on the subject.

We say proper inquiry, because the right to discover bias is hedged with restrictions to insure that the inquiry is not perverted. We do not find that defendant’s voir dire question violated these restrictions.

One restriction is that the question must be limited to the prospective jurors’ existing state of mind, The converse is that the question may not seek to make the jurors speculate on contingencies or commit them to a certain verdict. In State v. Mosier, Mo., 102 S.W.2d 620 [7], the court said: “The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly * * Here, defendant’s question was not that precise but it did seek to learn the jurors’ existing state of mind; it did not seek any commitment.

Another restriction is that on voir dire counsel may not tell the panel what the court’s instructions will be. The vice of such speculative statements on voir dire is readily apparent, but we see no such vice here. Defendant’s question said nothing about instructions. He was inquiring about an essential part of plaintiff’s case: the burden of showing defendant’s negligence. This was not speculative because the trial court had to instruct on burden of proof by giving MAI 3.01.

Still another curb on voir-dire bias questions is that they not be used to disguise arguments or pleas for sympathy. We have examined the question itself and the colloquies before and after the court’s ruling, and find not a trace of camouflage. In fact, the trial court announced that its ruling denying the question was based on Smith v. Nickels, Mo.App., 390 S.W.2d 578. The voir dire question , there was “Would any of you hesitate to find in favor of my client if you felt my client wasn’t to blame for this accident?” That question was condemned because it sought to commit the jury to a verdict, a vice not present here.

We rule that defendant’s voir dire question was not improper. Although poorly worded, its substance was correct. Its form was unobjectionable since it did not violate the principles of commitment and speculation, nor purport to tell the jury what the court’s instructions would be; nor was it argumentative. The question would have been better if it had simply asked the panel whether any of them had a fixed opinion against the proposition that in a case of this kind the plaintiff could recover only if the jury believed the defendant was negligent.

We are aware of the discretion allowed a trial court in ruling on the propriety of voir dire questions. But “it is also one of the highest duties of courts, in the administration of the law concerning selection of jurors and juries, to seek to accomplish that purpose [an impartial jury].” Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695 [6-10], 127 A.L.R. 711. In the interest of justice to the defendant’s effort to determine the impartiality of the panel, the trial court should have allowed the question.

Pleadings as Admissions Against Interest

Defendant’s next point is that the court erred in excluding — as admissions against the plaintiff’s interest — allegations he made in a separate count of his petition against a co-defendant. Plaintiff had sued both defendant Bi-State and the Laclede Gas Company. Before trial he dismissed his count against Laclede. The plaintiff contends, primarily, that his pleading was properly excluded because allegations made against one defendant may not be used by another defendant to contradict a plaintiff’s testimony; that this is so even if one of the original defendants is no longer in the case. This issue calls for a brief statement of plaintiff’s evidence.

Plaintiff’s car and defendant’s bus collided when both were northbound, side by side, on McCausland Avenue just north of Manchester. McCausland had two northbound traffic lanes. Initially plaintiff’s car was moving north in the curb lane and defendant’s bus was moving north in the inner lane. Ahead of plaintiff, in the curb lane, Laclede had excavated part of the street, thereby closing the curb lane to plaintiff and other drivers going north in that lane. Laclede had put up a warning barricade near the excavation. The plaintiff’s car collided with defendant’s bus when plaintiff turned left into the inner lane at a point near the barricade. The plaintiff testified he first saw Laclede’s barricade while crossing Manchester, about 200 feet south of it. Plaintiff also testified he was driving only 3 to 5 m. p. h.; that he began his left turn from the curb lane into the inner lane when he was still 40 feet short of La-clede’s barricade.

The gist of plaintiff’s count against La-clede was that Laclede had not given him adequate warning of its excavation; that its barricade was so dangerously close to the excavation that plaintiff had to make a quick turn to his left into the path of the bus. This allegation was inconsistent with plaintiff’s testimony that he had first seen the barricade when 200 feet away from it and had turned left when still 40 feet short of it.

Pleadings are addressed to the court, not the jury. It is said that pleadings are generally inadmissible in evidence in the same case because “they do not possess the characteristics inherent in admissions againt interest.” Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75 [1-6], citing 4 Wigmore on Evidence, p. 5. The mischief of bringing trial pleadings before the jury is readily apparent: if one pleading is read, another could be read in explanation of it and utter confusion would result.

An exception to this rule against using pleadings in evidence has come into our law. Although trial pleadings are inadmissible in evidence because they would be confusing, this is not true of abandoned pleadings or pleadings in another lawsuit. Hence, these may be used as admissions against a party’s interest or to impeach a witness. On full consideration here, we conclude, however, that the plaintiff’s dismissed count against Laclede was not admissible against him as an admission against interest. This, because plaintiff’s count against Laclede was a permissible multiple plea, and a plea against one defendant may not be used in evidence against the plaintiff by the other defendant.

Thus, in the Flex-O-Lite case, supra, there was a three-car collision, and plaintiff sued his host-driver and the owners and drivers of the other two cars. The host-driver testified favorably for plaintiff. Plaintiff then testified, but his testimony did not inculpate the defendant host-driver. So the other defendants sought to impeach plaintiff by showing plaintiff’s pleaded allegations of negligence against his host-driver. The trial court excluded the pleaded allegations, and was upheld on appeal. The court ruled that “multiple pleas may not be used as admissions upon another issue in the same case.” Defendant Bi-State would distinguish our case from the Flex-O-Lite case because there the co-defendants were still in the case, while here plaintiff had dismissed as to defendant Laclede. Superficially that would cast plaintiff’s count against Laclede into the abandoned pleading category and make it admissible against plaintiff.

A more similar issue arose in Macheca v. Fowler, Mo., 412 S.W.2d 462 [1-6], and was ruled contrary to Bi-State’s contention of abandoned pleading. In the Macheca case there was a chain collision. The plaintiff sued the drivers of two preceding cars and also defendant Fowler, whose car had struck plaintiff’s from the rear. The two drivers of the front cars were discharged on motions for summary judgment, and plaintiff went to trial against Fowler alone. On Fowler’s cross-examination of plaintiff he sought to impeach him by reading plaintiff’s inconsistent allegations of negligence against the two discharged defendants. In ruling these pleaded allegations inadmissible, the court stressed the principle that in cases of multiple pleas a pleading on one issue may not be used as an admission on another issue in the same case. At 412 S.W.2d 1. c. 465, the court said: “The failure of [plaintiff’s] charges against the other two defendants did not defeat his right to continue to assert against the defendant here the matters alleged as negligence on this defendant’s part. Plaintiff had the right to try his case on the issues made against this defendant without regard for the charges previously made against the two involuntarily dismissed defendants.”

The only distinction is that in Ma-checa v. Fowler the other defendants went out of the case on a summary judgment, while here plaintiff dismissed his count against defendant Laclede. This does not detract from the principle — stated in both the Flex-O-Lite and Macheca cases — that if a plaintiff makes inconsistent claims against multiple defendants, those pleas “do not possess the characteristics inherent in admissions against interest” and “may not be used as admissions upon another issue in the same case.” We hold that the trial court properly denied defendant Bi-State’s offer to use plaintiff’s allegations against defendant Laclede as admissions against his interest.

Argument of Injuries

For its last point Bi-State charges that the trial court erred in allowing plaintiff to argue he had suffered damage to a nerve since there was no evidence to support that argument.

In the collision with Bi-State’s bus plaintiff was making a left-turn arm signal and his arm got caught between his car and the bus. Plaintiff went to his doctor complaining of soreness of his neck, arm and shoulder, and headaches. The doctor found a resistance to movement in plaintiff’s neck, shoulder and arm, and noticed “tenderness at the base of the neck over the group of nerves that come out of the neck, what we call a plexus.” In answering questions about the general nature of such injuries the doctor said: “* * * a straining injury or fracture or any more severe injury causes pressure on these nerves and they produce headache, pain in the shoulder, the arm and also in the neck.” The doctor prescribed neck traction to overcome headaches and “this tenderness in the brachial plexus.” The doctor denied finding anything that warranted a neurological examination but added: “Very often you have pain down the course of a nerve from the neck without any neurological findings.” He found nothing to substantiate pressure on any nerve, but said plaintiff’s complaints of pain did indicate that possibility.

In answering plaintiff’s first hypothetical question the doctor gave his opinion about the cause of plaintiff’s neck and shoulder symptoms. These, the doctor said, were caused by the collision. Later, on redirect examination, the doctor was asked his opinion whether plaintiff “did have a nerve-root pressure as a result of the injury to his neck?” The doctor said, “I can’t answer that question.” This was the substance of evidence about nerves.

We digress here to call attention to the “Committee’s Comment” to MAI 4.01: “During the instruction conference the parties and the Court should discuss (on the record) just what damages are supported by the evidence and can properly be argued to the jury. In this way jury arguments can proceed without undue interruptions.” Pursuant to this, at the close of-the evidence, the trial court heard counsel on the scope of their proposed arguments. The defendant objected on two grounds to plaintiff’s arguing anything concerning nerve-root pressure: that there was no evidence that nerve-root pressure existed, and because plaintiff’s doctor could not give an opinion on causal connection between nerve-root pressure, if it did exist, and the collision. The court overruled defendant’s objection.

After this ruling plaintiff’s counsel argued and expanded this element of damage, vigorously and at length. Three times he referred to plaintiff’s “nerve-root damage.” Again he said plaintiff had a “nerve being pinched” and that plaintiff had been treated for “a nerve-root impingement.” He argued, “This is an injury to the cervical spine with damage to a nerve root * * *.” These statements were unfounded exaggerations, inflating the casual mention of nerves into a positive assertion of serious physical impairment. As defendant now reasons, these were “money words” calculated to incite an excessive verdict.

The vice of plaintiff’s argument rests on the violation of two axiomatic principles. The first is that a plaintiff must produce substantial evidence to show both the existence of an injury and its causal connection with defendant’s negligence. Here, the plaintiff utterly failed to show either that he had suffered “nerve damage” or that it was the result of the collision. The other principle is that counsel should neither argue nor draw inferences from matters not in evidence. This is nothing new. In the early case of Brown v. Hannibal & St. Joseph R. R. Co., 66 Mo. 588, 1. c. 599, the court said: “The practice of traveling out of the record in an address to a jury, and making statements of facts which there was no evidence tending to prove, has been often condemned, and in a case of gross misconduct in this regard, this court should reverse a judgment obtained by the party whose attorney should so conduct himself, and to avoid such a result, the better and safer practice is, in argument to a jury, to keep within the record and the testimony.” More recently the principle was applied in Holmes v. Terminal R. R. Ass’n of St. Louis, 363 Mo. 1178, 257 S.W.2d 922 [13]. There an issue arose quite similar to ours. We quote from 1. c. 928-929:

“During the argument, plaintiff’s counsel mentioned that no spinal myelo-gram had been taken of plaintiff, and that it would show whether he had a disc injury, stating: ‘There is something wrong there, something is wrong with the man’s back * * *. If he has a disc injury to his back it is a serious thing, and if that little nerve is pinched in there it will cause suffering — .’ Defendant’s objection on the ground there was no evidence that plaintiff sustained a disc injury was overruled. There was no substantial evidence of a disc injury. Plaintiff’s doctors did not establish such an injury, and the testimony of defendant’s doctors was that there was no disc injury. [Citing cases.] The objection should have been sustained.”

Here, the court should have sustained defendant’s objection to plaintiff’s argument.

We are mindful of the proper limitation upon the power of an appellate court to reverse the decision of a trial court for its rulings on discretionary matters. But the trial court’s erroneous exercise of judicial discretion has long been held to be reviewable. In re Wilson, 95 Mo. 184, 8 S.W. 369, 1. c. 371. And the “deference to the trial court in discretionary matters is not to be self-administered by appellate courts to anesthetize against sensitivity to prejudicial error.” Faught v. Washam, Mo., 329 S.W.2d 588, 1. c. 600.

Considering the rulings of the trial court on such sensitive matters as selecting an impartial jury and keeping counsel’s damage argument within the record, we believe there was reversible error.

The judgment must be reversed and the cause remanded for a new trial.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment is reversed and the cause remanded for a new trial.

ANDERSON, P. J., WOLFE, J., and JOHN C. CASEY, Special Judge, concur.

      . Kendall v. Prudential Ins. Co. of America, Mo., 327 S.W.2d 174 [3]; Moore v. Middlewest Freightways, Mo., 266 S.W. 2d 578 [9].

      . Faught v. St. Louis-San Francisco Ry. Co., Mo., 325 S.W.2d 776 [1]; Wright v. Chicago, B. & Q. R. R. Co., Mo., 392 S.W.2d 401 [9]; Smith v. Nickels, Mo. App., 390 S.W.2d 578 [4]; National Bank of Rolla v. Romine, 154 Mo.App. 624, 136 S.W. 21 [1].

      . Koeppel v. Koeppel, Mo.App., 208 S.W. 2d 929 [7].

      . Hawkins v. Missouri Pac. Ry. Co., 182 Mo.App. 323, 170 S.W. 459 [19].

      . Wright v. Chicago, B. & Q. R. R. Co., Mo., 392 S.W.2d 401 [10].

      . Linstroth v. Peper, 203 Mo.App. 278, 218 S.W.431 [3],

      . Morris v. Duker, Mo., 414 S.W.2d 77 [5].

      . State v. Ramsey, 355 Mo. 720, 197 S.W. 2d 949 [6].

      . State v. Miller, 156 Mo. 76, 56 S.W. 907 [1] ; State v. Punshon, 133 Mo. 44, 34 S.W. 25 [2].

      . State v. Linders, Mo., 224 S.W.2d 3S6 [2].

      . State v. Lassieur, Mo., 242 S.W. 900 [2].

      . 50 C.J.S. Juries, §§ 241 b, 246 a, 275 a (2).

      . Smith v. Nickels, Mo.App., 390 S.W.2d 678 [7]; State v. Heickert, Mo., 217 S.W.2d 561 [2].

      . Wright v. Chicago, B. & Q. R. R. Co., Mo., 392 S.W.2d 401 [11]; State v. Katz Drug Co., Mo., 352 S.W.2d 678 [4].

      . State v. Bolle, Mo., 201 S.W.2d 158 [2, 3]; State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956 [2]; State v. Mosier, Mo., 102 S.W.2d 620 [7].

      . Scott v. Western Union Tel. Co., Mo. App., 109 S.W.2d 912 [1]; Wright v. Chicago, B. & Q. R. R. Co., Mo., 392 S.W.2d 401 [12].

      . Dowzelot v. Rawlings, 58 Mo. 75, 1. c. 77 (1874), citing 1 Greenleaf on Evidence, §§ 195, 527; cases collected in 12 Mo.Digest, Evidence, @=>208(6). See also the three cases cited here by defendant; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889 [14] ; Carter v. Matthey Laundry & Dry Cleaning Co., Mo., 350 S.W.2d 786 [1-2] ; Richardson v. Wendel, Mo., 401 S.W.2d 455 [11].

      . Berry v. Kansas City Public Service Co., 341 Mo. 658, 108 S.W.2d 98 [11]; Moore v. Glasgow, Mo.App., 366 S.W.2d 475 [9]; Zoeller v. Terminal R. R. Ass’n of St. Louis, Mo.App., 407 S.W.2d 73 [2-4].

      . Reese v. Illinois Terminal R. R. Co., Mo., 273 S.W.2d 217 [11] ; Davis v. City of Independence, Mo., 404 S.W.2d 718 [3] ; Wartenbe v. Car-Anth Mfg. & Supply Co., Mo.App., 362 S.W.2d 54 [4],


author: HOWARD, Presiding Judge.

text:
    Thomas A. MORRIS, Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant.
    No. 24625.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.
    Application for Transfer Denied Feb. 12, 1968.

      R. Lawrence Ward, Shughart, Thomson & Kilroy, Kansas City, for appellant.
    Samuel J. Molby, Clayton R. Smalley, Kansas City, of Counsel, Watson, Ess, Marshall & Enggas, Kansas City, for respondent.
   HOWARD, Presiding Judge.

This is a suit to recover medical and hospital expenses under a group major medical insurance policy issued by the appellant company. Respondent obtained a judgment below and the company duly appealed to this court. We shall refer to the parties as they appeared below.

Plaintiff was employed as a claims attorney by Bruce Dodson and Company in Kansas City, Missouri. As such employee he elected to become insured as to himself, his wife and family for medical, hospital and surgical expenses under the group policy issued by the defendant to Bruce Dodson and Company and covering its employees. This policy and the rider on which defendant relies, were both effective as to plaintiff and his wife on June 1, 1960. Plaintiff’s wife had long been a diabetic and plaintiff so stated on his application for insurance. By a rider to the policy the coverage was limited as follows:

“1. Subject to the limitation in Paragraph 2 hereof, ‘sickness’ wherever used in the policy means sickness or disease causing loss commencing after the effective date of coverage of the insured employee or insured dependent whose sickness is the basis of claim and resulting in loss covered by the policy.
“2. Expenses incurred after the effective date of this rider as the result of sickness for which medical treatment was received or recommended by a legally qualified physician or surgeon prior to the effective date of insurance as to the insured employee or insured dependent will be covered only if a period of 24 months ending after the effective date of coverage as to the insured employee or insured dependent has elapsed, and during which period there has been no medical treatment rendered or recommended for such sickness.”

Defendant originally denied plaintiff’s claim on the ground that the expenses resulted from the diabetic condition of plaintiff’s wife; that she had diabetes long before the effective date of the policy and had received continuous treatment therefor, and that the claim was specifically excluded by the above quoted portion of the rider.

Plaintiff brought this suit on the basis that his wife contracted glomerulosclerosis after the effective date of the policy and that she had not received treatment therefor until January of 1962. Plaintiff’s wife had been a diabetic since 1945 and was under the continuous care of various doctors for that condition, and took daily injections of insulin. In December of 1959 she was hospitalized in St. Luke’s Hospital in Kansas City, Missouri, for the treatment of a persistent infection in her right thigh and other complaints. The final diagnosis listed in the discharge summary in the hospital records for this period of hospitalization was cellulitis right thigh; diabetes mellitus; Kimmelstiel-Wilson’s syndrome; fungus infection of the fingernails with a secondary paronychia. The medical witnesses agree that “Kimmelstiel-Wilson’s syndrome” and “glomerulosclerosis” are synonymous and mean the same thing. The doctors who treated Mrs. Morris during this December 1959 hospitalization did not appear as witnesses at the trial. The record does not explain why they were not called as witnesses. In August, 1961, Mrs. Morris first went to Dr. Kettner, who testified for plaintiff. During all this time Mrs. Morris had been an active housewife, leading a relatively normal life caring for three children and performing all her household duties. After Christmas in 1961, or early in January of 1962, there was a pronounced change for the worse in her condition, and she was hospitalized in St. Mary’s Hospital, in Kansas City, Missouri, on January 26, 1962. At this time, Dr. Kettner for the first time definitely diagnosed her condition as glomerulosclerosis. She was discharged from St. Mary’s February 7, 1962 “even though it is felt that her prognosis is very poor and that she will undoubtedly have to be rehospitalized. However, it is felt that she should be permitted to spend some time at home at this stage”. The doctor advised Mr. Morris of the seriousness of her condition.

Mrs. Morris’s older brother was a doctor in New York City, and when he was advised of the situation he insisted that she come to New York and consult with the doctors there. She did so and first entered New York Eye and Ear Infirmary. She was then transferred to Doctors Hospital in New York City, on March 17, 1962, where she died on April 7, 1962. Plaintiff’s claim is for hospital and doctor bills incurred from the time of her hospitalization in St. Mary’s Hospital, in Kansas City, Missouri, on January 26, 1962, until her death on April 7,1962.

On this appeal defendant alleges error in the failure of the trial court to sustain its motion to set aside the verdict and judgment for plaintiff and enter judgment for defendant in accordance with its motion for directed verdict. Defendant’s contention is well summarized by a paragraph from its brief which reads as follows: “The transcript of the trial of this case will reflect that the only evidence in this case was to the effect that Lorraine Morris was afflicted with and suffering from the disease of glomerulosclerosis prior to June 1, 1960. That she continued to receive treatment for glomerulosclerosis subsequent to June 1, 1960, and prior to her death, and that no twenty-four month period elapsed subsequent to June 1, 1960, during which time she was not undergoing treatment for the disease of glomerulo-sclerosis.”

As heretofore indicated the doctors who treated Mrs. Morris during her December 1959 hospitalization in St. Luke’s Hospital did not testify. Dr. Kettner was plaintiff’s only medical witness and Dr. Charles B. Wheeler, Jr., then coroner of Jackson County, a pathologist, was defendant’s only medical witness. Dr. Wheeler had not examined or treated Mrs. Morris.

Glomerulosclerosis was described as “a condition in which there are deposits of a peculiar material in certain parts of the kidneys, which lead to generalized deterioration of kidney function, among other things”. The evidence indicates that this condition caused the very small blood vessels in the kidneys and in the eyes and in other places of the body to deteriorate and fail to function properly. The result is kidney failure, which in Mrs. Morris’s case caused uremia, nephrosclerosis and death. Not all diabetics develop glomerul-osclerosis. The percentage was set by the witnesses at 20% to 25%. It may be that persons who are not diabetics can develop glomerulosclerosis, but the evidence as to this is not satisfactorily clear.

Both Drs. Kettner and Wheeler examined the hospital records from St. Luke’s Hospital for Mrs. Morris’s stay in 1959. Dr. Kettner testified that he would not base a diagnosis of glomerulosclerosis on the findings contained in the record. However, he specifically refused to state that she did not have glomerulosclerosis at that time. He stated that he would not quarrel with the diagnosis of the doctors who treated her. Dr. Wheeler from his examination of these records gave his opinion that Mrs. Morris did have glomerulo-sclerosis at the time of her hospitalization at St. Luke’s in December of 1959.

From the testimony of these two doctors it appears that glomerulosclerosis is what is described as an “irreversible” disease. There is no cure for the disease, and the only thing that can be done is to try to control the patient’s diabetes, so as to keep the condition of glomerulosclerosis from getting progressively worse. Dr. Kettner testified: “Q. What sort of treatment is there for this glomerulosclerosis ? A. Well, essentially, there really is none, because once they have it, it’s what we call an irreversible illness. In other words, you can’t do anything that will cure it; all you can do is to try to prevent it from getting worse”. Although Dr. Wheeler used different words to describe the situation, his testimony was to the effect that there was no cure for glomerulosclerosis and that the only thing that could be done was to control the diabetes. Both doctors testified that the hospital records from December, 1959, at St. Luke’s showed no treatment for glomerulosclerosis, as such, but only treatment for the diabetes and the infection. During this hospital stay her insulin dosage was increased. Dr. Kettner testified that when Mrs. Morris became his patient in August of 1961, he did not at that time diagnose her condition as glom-erulosclerosis, although he stated that with her, as with any other long term diabetic, there was always a strong suspicion of glomerulosclerosis. In the early stages of this disease it is very difficult to diagnose; the only certain way is laboratory examination of tissue from the kidney and this is seldom done, and was not done in Mrs. Morris’s case. He stated that he treated her for the diabetes and not for the glom-erulosclerosis. This treatment consisted of strict diet and insulin.

Dr. Kettner did not diagnose Mrs. Morris’s condition as glomerulosclerosis until her hospitalization in January of 1962, and he did not treat her for such condition until that time. He, as well as Mr. Morris, testified that there was a profound change in Mrs. Morris’s condition early in January, just prior to this hospitalization.

Defendant contends that it was entitled to a directed verdict under the provisions of the rider on the policy excluding coverage of expenses resulting from any disease existing, and for which treatment was received or recommended, prior to the effective date of the policy, June 1, 1960, unless the insured had a 24 month period ending after the effective date of the policy, during which she did not receive treatment or have treatment recommended for such pre-existing disease or condition. Defendant’s argument is two pronged — (1) Mrs. Morris had glomerulosclerosis prior to June 1, 1960, and received treatment therefor, and (2) Mrs. Morris received continuous treatment for this condition, and therefore did not have the 24 month period free from * treatment or recommended treatment.

On the other hand plaintiff’s claim was that Mrs. Morris did not have glomerulo-sclerosis until January of 1962, after the effective date of the policy, and that, even if she did have glomerulosclerosis prior to June 1, 1960, she did not receive treatment therefor for the 24 month period prior to her hospitalization in January of 1962, because there was no treatment for glom-erulosclerosis; the only treatment she received was insulin and the insulin was treatment for diabetes, not glomerulo-sclerosis.

In our foregoing review of the evidence, it is apparent that there is a conflict as to whether or not Mrs. Morris had glom-erulosclerosis and received treatment thereof, at the time of her hospitalization in St. Luke’s Hospital in 1959. The jury could have found either way on that issue but the instruction offered by defendant and given by the court assumed that Mrs. Morris did, in fact, have glom-erulosclerosis and received treatment therefor, at some date prior to the effective date of the policy. Therefore, we need not consider this issue in detail.

Under this instruction of defendant, the jury was required to find as a prerequisite for a verdict for plaintiff that Mrs. Morris did not receive treatment for glomerulosclerosis for a 24 month period prior to January 1962. Thus it is obvious that the jury found that she did not receive such treatment during such period when they returned a verdict for plaintiff. As indicated the evidence is that there is no specific treatment for glomerulosclerosis; all that can be done is to control the diabetes and thereby try to keep the glomerulosclerosis from getting worse; that the only treatment Mrs. Morris received was insulin and that insulin is treatment for diabetes. Thus, under the instruction given at the request of defendant, the jury could, as they did, find no treatment for the required period. In such circumstances defendant was not entitled to a directed verdict and the trial court did not err in this respect.

Defendant also complains that plaintiff’s verdict directing instruction, Instruction No. 3, was erroneous because it did not require the jury to find that the medical and hospital expenses for which plaintiff was suing were the result of the disease of glomerulosclerosis. Instruction No. 3 reads as follows:

"Instruction No. 3 (Given)
“Your verdict must be for plaintiff if you believe:
That plaintiff paid and incurred medical, hospital and surgical expenses for the care and treatment of his wife, Lorraine Morris, at the times mentioned in evidence, unless you further find the issues for defendant under Instruction Number 4.
(Not MAI; by the plaintiff)”

It is true that plaintiff’s claim was based upon Mrs. Morris having the condition of glomerulosclerosis and upon the contention that the expenses sued for were brought about by such condition. This instruction does not specifically require a finding by the jury that Mrs. Morris had glomerulosclerosis, or that the expenses resulted therefrom. However, this instruction does refer to defendant’s affirmative defense in Instruction No. 4, which reads:

“Instruction No. 4 (Given)
Your verdict must be for the defendant if you believe:
That Lorraine Morris had received treatment for the disease of diabetic glomerulosclerosis within a twenty-four month period prior to January, 1962. (Not MAI; by the defendant)”

Thus, when these two instructions are read together, as they must be, the jury was instructed to find for the plaintiff, if he incurred medical and hospital expenses for the treatment of his wife (and there was no dispute that he did) unless they found that plaintiff’s wife received treatment for glomerulo-sclerosis within a twenty-four month period prior to January, 1962. When these two instructions are read together we do not believe that the jury was confused in view of the fact that the whole case was about glomerulosclerosis and the only argument between the parties was whether on not she had glomerulosclerosis before the effective date of the policy and whether or not she received treatment therefor. It is true that a verdict directing instruction must require the jury to find all necessary elements of plaintiff’s case. However, there is an exception to this requirement where it is unmistakably apparent that certain facts are conceded by both parties. See Welch v. McNeely, Mo., 269 S.W.2d 871; Meade v. Kansas City Public Service Co., Mo., 250 S.W.2d 513; State ex rel. Fourcade v. Shain, 342 Mo. 1190, 119 S.W.2d 788; White v. Citizens Ins. Co. of New Jersey, Mo.App., 355 S.W.2d 421 and Clark v. Howard, Mo.App., 273 S.W.2d 771.

The record in this case does not contain the closing arguments of counsel. However, from the whole course of the trial it is apparent that there was no contest as to whether or not Mrs. Morris had glomerulosclerosis and that the expenses sued for resulted therefrom. Both sides admittedly tried the case on the basis that she had the disease at least from the time of her hospitalization in January of 1962 until her death. Defendant contended that she had it from the time of her hospitalization in 1959 until her death, and its instruction assumed such fact. If she did not have glomerulosclerosis and if the medical and hospital expenses did not result therefrom, then Instruction No. 4 did not present a valid defense under the policy rider pleaded and relied on by defendant. Instruction No. 4, offered by and given on behalf of defendant, assumed that the expenses resulted from glomerulosclerosis, just as did plaintiff’s Instruction No. 3. The paragraph heretofore quoted from defendant’s brief is based on such assumption. In its reply brief defendant for the first time argues that there was evidence from which the jury could have found that the expenses resulted from a disease other than glom-erulosclerosis. A careful examination of the record reveals that such evidence is not substantial when conditions resulting from glomerulosclerosis are excluded. This argument is contrary to the theory on which both parties tried the case and is contrary to the theory on which defendant submitted its Instruction No. 4 and on which it based its original brief. In such circumstances, we hold that the technical error in omitting from Instruction 3 an affirmative requirement that the jury find that Mrs. Morris had glomerulosclerosis and that the expenses sued for resulted from such disease, was not prejudicial to defendant. In reaching this conclusion we are mindful of the fact that defendant pleaded and relied upon an affirmative defense based upon the quoted provisions of the policy rider and that it had the burden of proof on such issue. See Gennari v. Prudential Ins. Co. of Am., Mo., 335 S.W.2d 55 and Jackson v. Pacific Mutual Life Ins. Co., Mo.App., 308 S.W.2d 291.

Defendant’s last point is that the court erred in refusing to give its offered Instruction No. 9, which reads:

“Instruction No. 9 (Refused)
Your verdict must be for the defendant if you believe:
First, that Lorraine Morris was inflicted with the disease of diabetic glomerulosclerosis prior to the effective date of the policy mentioned in evidence, June 1, 1960, and
Second, the medical expenses incurred by the plaintiff after June 1, 1960 were the result of diabetic glomerulo-sclerosis, and
Third, Lorraine Morris had received treatment for the disease of diabetic glomerulosclerosis within a twenty-four month period ending after the effective date of the policy, June 1, 1960.

(Not MAI; by the defendant)”

It will be noted that this instruction first required a finding that Mrs. Morris suffered from glomerulosclerosis prior to the effective date of the policy, June 1, 1960. As heretofore pointed out, Instruction No. 4 given for defendant, assumed this fact, which had been contested during the trial. Therefore, if the court had given Instruction 9, it would have conflicted with Instruction No. 4 requested by defendant, and given by the court. Such conflict would not be permissible. If the court erred in giving Instruction No. 4 instead of Instruction No. 9 such error was invited by defendant, and it cannot now complain. A party cannot offer two conflicting instructions and then object when the court gives one rather than the other, and since they are conflicting, he does not have a right to both. If both were given it would be prejudicial error. See Tetherow v. St. Joseph & D. M. R. Co., 98 Mo. 74, 11 S.W. 310; St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co., 160 Mo. 396, 61 S.W. 300; Kelley v. United Mutual Ins. Ass’n, 236 Mo.App. 748, 149 S.W.2d 905 and Mundy v. Missouri Power & Light Co., 231 Mo.App. 555, 101 S.W.2d 740.

Instruction No. 9 purports to be a complete instruction covering the entire case. However, at the request of the defendant, the court gave Instruction No. 4, which assumed that Mrs. Morris had glomerulosclerosis prior to the effective date of the policy, which was an issue that No. 9 required the jury to find. Thus Instruction No. 4 was more favorable to the defendant than Instruction No. 9, and it cannot now complain that the court gave an instruction more advantageous to the defendant than it was entitled to.

Also, it appears that the third paragraph of the instruction is incorrect under the provisions of the policy rider relied on by defendant. This paragraph directed a verdict for defendant if Mrs. Morris “received treatment — within a [any] twenty-four month period ending after the effective date of the policy”, whereas the rider did not take away coverage unless there was no 24 month period ending after the effective date of the policy during which treatment was not received or recommended. Furthermore, paragraph one of this instruction refers to pre-exist-ing disease, but neither in this paragraph, nor anywhere else in the instruction is reference made to treatment received or recommended prior to the effective date as is required by the rider. The trial court cannot be convicted of error in failing to give such an incorrect instruction. See Norris v. Winkler, Mo.App., 402 S.W.2d 24 and Orloff v. Fondaw, Mo. App., 315 S.W.2d 430.

Finding no prejudicial error in the case, the judgment below is affirmed.

All concur.