author: SPERRY, Commissioner.

text:
    Helen C. McGRURY, Plaintiff-Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Defendant-Appellant.
    No. 24264.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Billy S. Sparks, Harold T. Van Dyke, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for appellant.
    Thos. J. Conway, Jr., E. E. Thompson, Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.
   SPERRY, Commissioner.

Mrs. McGrury, plaintiff, sued defendant, owner of the Kansas City Municipal Auditorium, hereafter known as auditorium, for damages growing out of personal injuries received by her when she fell on a ramp in the auditorium on the evening of March 11th, 1961. She suffered a broken right knee cap and had a verdict for $10,000.00. From a judgment thereon defendant has appealed.

Defendant’s first contention is that no submissible case was made. We shall review the facts from a standpoint most favorable to plaintiff’s theory of recovery. The major portion of the testimony is not in dispute. Wherever material facts are in dispute we will accept as true those most favorable to plaintiff’s theory of recovery. The rule is stated in Zachary v. Kroger, Inc., 332 S.W.2d 471, 473.

Defendant leased the auditorium to the Police Benefit Association and to the George A. Hamid Circus Company for the sum of $600.00 per day. On the evening of March 11th, 1961, plaintiff, her daughter, two grandchildren, her son and his fiancee, were guests and attended the evening circus show; they were admitted on tickets purchased for that purpose. Plaintiff, her daughter and grandchildren arrived in the auditorium at about 7:30 P.M. They proceeded up a ramp, to the balcony, to their reserved seats. Plaintiff was not familiar with the location of the various ramps with reference to the location of her seat, and she did not identify the ramp she ascended. She fell and was injured while descending a certain identified ramp after the evening performance had ended, at about 11:15 P.M.

There was evidence to the effect that, in addition to leasing the auditorium for the circus performance, defendant had leased to others the right to sell, for consumption on the premises, certain types of merchandise, consisting of popcorn in boxes, candy floss on sticks, hot dogs sold in paper wrappers, peanuts, coke and other beverages sold in paper containers; that, on March 11th, 1961, there were three circus performances, at 10:30 A.M., 2:30 P.M., and at 8:20 P.M.; that the attendance was: Morning, 5043 ; Matinee, 8500, Evening, 8800; that defendant employed a regular crew of eleven men who came to work at 8:00 A.M. and left at 5 :00 P.M., sometimes later; that their duty was to clean the foyers and ramps of debris left there by patrons during the daytime performances; that a single janitor came on duty about 4:00 P.M. and remained until about 11:00 P.M., during which time he cleaned up wherever needed; that a night crew came on at 11:00 P.M. and cleaned the entire auditorium, readying it for the next day’s activities; that this was the procedure followed on March 11th, 1961; that the ramps were on a 15° slope and were smooth, no cleats.

Plaintiff testified to the effect that, as she walked up a ramp to the balcony and her seat, she did not notice any debris or popcorn on the ramp; that plaintiff’s daughter and children accompanied her; that this was not the ramp upon which plaintiff fell as she came down from the balcony.

The testimony of plaintiff’s son and his then fiancee, Janet, (wife at the time of the trial) was that the)1' arrived late that evening, after plaintiff had been seated; that they travelled up the same ramp upon which plaintiff later fell; that very few people were on it and they could see it clearly; that it was covered all over with popcorn boxes, paper coke or candy containers, and powdered, dirty popcorn grains and husks; that it was so bad as to be dangerous for Janet, in her high heels; that she held on to her escort and picked her way around the worst of the litter; that, when they arrived at their seats, adjoining plaintiff’s seat, the son had to remove debris from under the seat in order to get it down so that they could be seated; that they left ahead of plaintiff and ahead of the crowd, after the show; that few people were on the ramp as they came down; that they could see the debris clearly; that it was in about the same condition as it had been in when they first came over it. This was about three hours after they first entered the auditorium.

Plaintiff stated that she left her seat at about 11:15, after her son and fiancee had left; that, by the time she and her party reached the ramp, the crowd on the ramp was so dense that she had to restrain one of the grandchildren to prevent colliding with those in front; that she occasionally came in personal contact with her daughter as she followed her; that she could not look down or see the ramp; that she stepped on a foreign object; that her right leg went out and she went down on her right knee; that she eventually, lay across the ramp; that, after the crowd thinned out, she saw that the ramp was covered with greasy powdered popcorn, paper, boxes, and other debris; that she later, identified the ramp upon which she fell; that, prior to her fall, she had no knowledge of the littered condition of the ramp. The evidence was to the effect that she was in a cast, in the hospital, for several weeks, undergoing surgery and treatment for a broken knee cap. She has a scar around her knee. Her leg is weak. She cannot climb or descend steps except haltingly. She cannot kneel in Church, or to scrub or clean floors or bath tubs. She suffers from pain in her knee when she kneels. She has “slowed down” a great deal as a result of her disability. This testimony was given three and one half years after she fell.

Dr. McCullough, an orthopedic surgeon, testified as to her surgical and hospital care, and stated that her condition, as above described, would likely not change materially in the future.

There was testimony from plaintiff, her daughter, her son, his wife, and her husband, to the effect that, immediately after she fell and before she was removed to first aid and, later at the hospital, she had dirty-powdered popcorn husks, grains, and grease on her coat, her shoes, and her purse; that she gave her suede shoes to charity because she could not get the grease out of them. Her husband stated that much of her housework, washing, ironing, scrubbing, etc. she was unable to do, and that it was now being done by a maid.

The basis of recovery in this kind of case is stated in Milliken v. Trianon Hotel Company (Mo.App.), 364 S.W.2d 71, 74. There was substantial evidence from which the jury could have found every necessary element to make a case. The jury could have found that defendant could and should have known that the ramp upon which plaintiff fell was covered with litter from about 8:00 P.M. when plaintiff’s son and his wife arrived, until they left after 11 :P. M., and that women who traversed it might slip, fall on the concrete, and suffer severe injuries, as plaintiff did. The jury could have found that defendant did nothing to remedy this dangerous situation for a period of more than three hours after it should have had knowledge thereof. Stafford v. Fred Wolferman, Inc. (Mo.), 307 S.W.2d 468, 474-475; Stocker v. J. C. Penney Co., et al. (Mo.App.), 338 S.W.2d 339, 343. No claim is made that defendant lacked knowledge of this condition, or that it warned plaintiff thereof. There is no showing, as a matter of law, that the dangerous condition was as obvious to plaintiff as it was to defendant. The question of negligence of defendant and of the contributory negligence of plaintiff were for the jury to determine. Stafford v. Fred Wolferman, supra, 307 S.W.2d 474.

From what we have said it follows that we cannot say that, as a matter of law, plaintiff assumed the risk by going where she knew that many children would drop debris on the ramps, or that plaintiff failed to exercise ordinary care for her own safety. She made a submissible case of negligence on the theory pleaded and tried. The facts are dissimilar to those in Byron v. Fresh Pond Open Air Theatre, 333 Mass. 121, 128 N.E.2d 785, 50 A.L.R.2d 1452, Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, and other cases cited by defendant. Here, defendant recognized the danger to invitees because of accumulation of debris on the ramps and, customarily, took steps to remedy it but, on this occasion, failed to do so.

It is contended that plaintiff’s main verdict directing instruction is prejudicially erroneous. In its motion for new trial defendant erroneously refers to this instruction as “No. 1”, when in fact it is No. 2. It is clear that it intended to refer to No. 2, as No. 1 is merely a general instruction where no reference is made to the issues mentioned in plaintiff’s verdict directing instruction. We will consider the criticisms mentioned in the brief and in the motion for new trial as though instruction No. 2 had been specifically mentioned.

The instruction is as follows:

“INSTRUCTION NO. TWO”
“The court instructs the jury if you believe from the evidence that defendant Kansas City as a municipal corporation made and entered into a business arrangement with others for the financial mutual benefit of the City and others whereby said circus was to make use of said auditorium and put on said circus or show to the public therein by paid admissions and defendant undertook to maintain the ramp where plaintiff allegedly fell in a reasonably safe condition for the use of the public and plaintiff and paid customers attending such show and that on the occasion described in evidence plaintiff Mrs. Mc-Grury and her family attended said show and paid for their admission thereto, and that at the end of said show plaintiff was walking down and making ordinary use of said ramp with a crowd of other such customers toward the street, and that she then and there suddenly and unexpectedly slipped. on the walking surface of said ramp and was thereby injured, if you so find, and that up to the time of her alleged fall she was unaware of any danger thereat and at all times herself used ordinary care, if you so find, and if you find that said surface of said ramp was then and there strewn with and had on it an accumulation of mashed, trampled and greasy popcorn that made said surface of said ramp at said time and place dangerous and not reasonably safe for ordinary use and that such customers making ordinary use thereof were reasonably likely to ship thereon and be injured, if you so find, and if you find that defendant knew or by the use of ordinary care would have timely known of all the ahovesubmitted facts, and if you find them to be the facts, and long enough before she fell, if so, by the use of ordinary care to have removed and remedied said dangers, if any, or timely warned her thereof and thereby prevented her being injured, if .so, and if you find defendant failed to use ordinary care so to do and that thereby and in maintaining same in the aforesub-mitted condition, if so, defendant was negligent, and if you find that she so fell and was injured as a direct result of the ahovesubmitted negligence of defendant, then your verdict must be for plaintiff Mrs. McGrury.”

The criticism levelled at it is based on highly technical grounds and, in our opinion, not justified. We think it would serve no useful purpose, nor add to the usable body of the law, to discuss same in detail. The instruction is not prejudicially erroreous on any grounds suggested.

Defendant claims error in the giving of instruction No. 7. In its motion for new trial the specification of error set out was as follows: “ * * * that it improperly submitted the burden of proof of contributory negligence * * * This constitutes a general objection only, not a specification such as is contemplated by the rules. Hunt v. Hunt (Mo.App.), 387 S.W.2d 234, 236. Whether or not the instruction is prejudicially erroneous is not preserved for review. Rules 70.02, 70.21, and 79.03; Arnold v. Fisher (Mo.App.), 359 S. W.2d 602, 609-611; Miller v. Gulf, Mobile and Ohio Railroad Company (Mo.), 386 S.W2d 97, 104.

It is contended that the verdict is excessive by $5000.00. The question is : Is the amount of the verdict such as to shock the conscience of the Court?

We have heretofore set out the facts regarding the nature and extent of plaintiffs injuries. Dr. McCullough, the surgeon who operated, confirmed what we said the evidence showed. He said that her injuries are of a permanent character. He based that, opinion on a physical examination that he made just prior to the date of the trial, more than three years after the injuries were suffered.

Plaintiff was sixty-one years of age in March, 1961. At the time of the trial, September, 1964, her life expectancy was eighteen years. She is partially and permanently disabled so as to be unable to perform the ordinary duties of a home maker, and requires hired assistance in addition to what services plaintiff’s husband can perform. Her condition will not likely improve. The jurors could have so found the above facts, and they could have believed, from their general observation and experience in life, that her disability would likely increase with the passage of years. The jury is the real authority for determining the amount of damages to be awarded in this kind of case, and the trial judge has, in effect, approved. We cannot say that $10,000.00 is clearly excessive. Stafford v. Fred Wolferman, Inc., supra, 307 S.W.2d 478.

The judgment is affirmed.

MAUGHMER, C., and BROADDUS, Special Commissioner, concur.

PER CURIAM.

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

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Alvae WINTERTON, Plaintiff, v. Boydie Clay VAN ZANDT, Defendant, Farmers Insurance Exchange, Garnishee, Alvae Winterton, Interpleader, William J. Cason, Interpleader-Appellant, Kelso Journey, Interpleader-Respondent.
    No. 24114.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.
    William J. Cason, Harold L. Caskey, Clinton, for appellant.
    S.L. Trusty, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This suit, in which originally four individuals and one insurance company were involved, is here for the second time. The rights and responsibilities of Winterton, Van Zandt and the Company have been fully and finally adjudicated. There remains, however, some dispute between two of the interpleaders, namely, William J. Cason, the present appellant, and Kelso Journey, the present respondent. We shall recite the facts in sufficient detail to identify and present this remaining controversy.

Since 1940, Senator Kelso Journey, respondent, has been a practicing attorney in Clinton, Missouri. Senator William J. Ca-son, appellant, has practiced law there since 1951. These two lawyers were associated together in the practice for a few years during the early fifties. They represented, among others, Mr. Alvae Winterton in his suit against Boydie Clay Van Zandt, for damages arising out of an automobile accident. This suit was prosecuted by them, sometimes acting together, sometimes acting separately, to a successful conclusion —to a final judgment of $14,250. The liability insurer denied its responsibility. However, a garnishment proceeding, based upon that judgment and against the Farmers Insurance Exchange, insurer, resulted in establishing with finality, (through decision by the Supreme Court of Missouri in Winterton v. Van Zandt, 351 S.W.2d 696), the responsibility of such insurer for that part of the judgment which was not in excess of its coverage.

On January 15, 1962, the Farmers Insurance Exchange’s liability under the judgment, including interest, amounted to $19,-856.67, which sum it was authorized to and did pay into the Circuit Court of Morgan County, Missouri, as custodia legis. Win-terton, Journey and Cason were interplead-ed and the court was requested to determine the rightful share of each in and to the fund. The circuit court heard evidence on the matter and then entered an order or judgment dividing the money. It allowed Winterton a share. No party appealed from that allowance. It, therefore, became final and presumably has been paid. Ca-son’s share of the fee was determined to be $3600 (approximately 40 percent) and he was allowed additionally, $70 as expenses. Journey was allowed expenses of $997.83 and a share of the fee ($5,524.15 or just over 60 percent). Senator Cason did not appeal from that circuit court judgment or order, but Senator Journey did appeal. This court by its opinion (Winterton v. Van Zandt, Mo.App., 374 S.W.2d 631) affirmed the circuit court judgment in all respects. A more detailed statement of the facts may be found in that opinion. The judgment order of the circuit court, as affirmed by this court, will hereinafter be referred to as the original judgment order.

The money covering the allowance to both Journey and Cason, of course, remained in the hands of the circuit clerk from February 23, 1962, (the date of the original judgment order) until the mandate of this court was received by the circuit clerk. Apparently in April, 1964, the circuit court was about to release the funds in accordance with its original judgment order, when Cason filed a document styled “Motion for Disbursement”. Therein he requested and moved that in addition to the $3670 ($3600 fee and $70 expenses) he be allowed interest thereon at 6 percent from February 23, 1962, the date of the original judgment order, until the same shall have been paid to him. Presumably he contemplated that this interest should be deducted from and paid out of the principal sum allowed to Journey as attorney fee and expenses. It could conceivably come from no other source. Farmers Insurance Exchange, the judgment insurer, certainly is not liable. It paid the full amount of its liability into court, and interpleaded both Cason and Journey so that the court could determine their respective shares. Winter-ton, the plaintiff and client, is surely not responsible. He has received only his rightful portion of the judgment. The circuit clerk, custodian of the fund, merely held onto it until the attorneys’ controversy could be finally resolved and the money could be- disbursed with safety.

The circuit court heard and considered appellant Cason’s motion, but refused to allow interest, and on April 13, 1964, directed disbursement in accordance with the original judgment order. Respondent, in his brief and in his motion to dismiss the appeal, states that he, on April 13, 1964, “drew down” that portion of the fund ($6,-521.98) apportioned to him under the orders of both February 23, 1962 and April 13, 1964, and that on April 14, 1964, Cason “drew down” the share ($3670) similarly apportioned to him. Appellant has made no reference to any such withdrawals. In any event, Cason has appealed from the denial of his claim for interest.

As we understand Senator Cason’s position he claims Journey should pay him interest for two reasons: (1) He asserts that if Journey had not appealed the first judgment, the money would have been paid in 1962 and he would have had the use of it ever since, and (2) that Section 408.040, V.A.M.S., specifically provides that interest shall be paid on all judgments from date of entry until satisfaction thereof is made. The statute does provide for interest on judgments. However, one of appellant’s difficulties is that he has no judgment against respondent Journey. They were both recognized as disputing claimants to a fixed amount of money (their attorney fee and expenses) which was paid into court in order for the court to determine the true share of each claimant therein. They were unable to agree upon a division among themselves, so the judgment debtor and damage suit liability insurer paid the money into court. The circuit court properly held the funds and would be entitled to continue to hold them until the division dispute has been finally resolved. Each claimant had a perfect right to invoke appellate court review of the circuit court decision as to the amount of the respective shares without being penalized with interest for having so appealed.

Neither of these claimants under the judgment of division will receive as large a share as he contended for in the beginning. The position of neither was approved in toto. Both have lost the use of the amount of the attorney fee awarded pending final adjudication of the dispute. If the clerk were still retaining the fund, would interest be due and owing to Journey from Cason, on Journey’s part of the fee because Cason appealed from the disbursement order of April 13, 1964, and thereby precluded Journey from receiving payment at that time? We believe not, although such would appear to be the converse of Cason’s position. Similarly, is interest due and owing to Cason from Journey on Cason’s part of the fee because Journey appealed the first circuit court judgment? Again we believe not.

If, as seems probable, the fund has been completely disbursed with both Journey and Cason having received their respective shares, no fund remains in cus-todia legis out of which interest might be allowed and paid. Does appellant expect to have a judgment entered against Journey for interest, when both Cason and Journey are involved in this litigation only as interpleaders? It cannot be.

We dispose of the applicability of Section 408.040, supra, which provides for interest on judgments by the simple observation that in this matter Cason does not have a judgment against Journey.

Appellant says further that on the first appeal this court assessed the costs against Journey and that interest is generally included as part of the costs. Journey lost that appeal and, as is usual, the costs were taxed against him, the losing party. The circuit court in its April 13, 1964 order of distribution taxed the costs against Journey. The appellate costs of this appeal will likewise be taxed against Cason, the losing party, but this will not include interest on Journey’s part of the judgment. We approve fully the order of this court and of the circuit court respecting cost taxation. Interest for neither Cason nor Journey is properly taxable as costs in this matter.

Appellant cites some cases which he contends support his position. In McManus v. Burrows et al., 191 Mo.App. 594, 177 S.W. 671, it was held that commissioners in a partition suit were entitled to interest on the allowances made by the trial court for their services from the date of allowance until paid. These fees were first taxed as costs. The commissioners were judgment creditors with what was in effect a judgment against the partitioned estate or the proceeds from the sale. The case is not decisive or even instructive on the matter before us. In re Thomassons’s Estate, Mo., 192 S.W.2d 867, involved attorney fees allowed against the executor of an estate. Even there interest was disallowed because the attorneys refused to accept the allowed fee, claiming it was inadequate, and thereby they caused the delay in payment. This case does not rule our question because there the attorneys were judgment creditors against the estate and as such would generally be entitled to interest if delay in payment was not caused by their own acts.

We have read the other cases cited by appellant but are not persuaded that he is entitled to interest. It is our opinion that the order of disbursement entered by the trial court on April 13, 1964, is in accordance with that court’s original judgment order, follows the mandate from this court, and is completely right and proper. We specifically affirm the action of the trial court in denying appellant’s claim against Journey or against the fund for interest. We find no error in the circuit court judgment and order of disbursement dated April 13, 1964, and believe it is completely correct.

The judgment or order of distribution is approved and affirmed.

DEW, Special Commissioner, and SPERRY, C., concur.

PER CURIAM.

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

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.


author: SAMUEL A. DEW, Special Commissioner.

text:
    John W. WILLIAMS et al., Individually and as officers and/or members of the Morning Star Baptist Church, an unincorporated religious association, Plaintiffs-Respondents, v. Jasper A. WILDER et al., Defendants-Appellants.
    No. 24227.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      James Wilson Spencer, Kansas City, for appellants.

      Harold L. Holliday and Lewis W. Clymer, Kansas City, for respondents.
   SAMUEL A. DEW, Special Commissioner.

The respondent, John W. Williams, and others named in the petition as plaintiffs, in behalf of themselves and all other members and officers of the Morning Star Baptist Church in Kansas City, Missouri brought this action. They sought to enjoin defendant (appellant) Jasper A. Wilder, because of alleged termination of his pastorate, from any further participation in the services, meetings or business of said Church or from interfering with the use or disposition of its property, cash or assets. From a judgment in favor of the plaintiffs, the defendants have brought this appeal. Others who intervened as co-defendants have joined in the appeal.

Plaintiffs filed a motion to dismiss this appeal for reasons of certain imperfections of defendants’ brief. The motion was taken with the case. We have noted the matter specified and find them insufficient to warrant dismissal of the appeal. The motion is overruled.

Some time prior to June 12, 1964, defendant Wilder became the duly elected pastor of the Morning Star Baptist Church (hereinafter referred to as the Church), for an indefinite period. It was and is an unincorporated religious association. It has a congregational or independent form of government with no episcopacy in higher control.

The petition in this cause alleged, among other things, that the Church owned real estate, transacted its business, solicited financial aid from its members and operated as a religious association; that its custom was to call and relieve its pastors by a vote of a majority of its members present at a regular meeting or a special meeting called for that purpose. It was further alleged that on or about June 12, 1964, at a special meeting called in accordance with established custom and usage of the Church, it was lawfully determined by a majority of the members present, that the pulpit of the Church be deemed vacant and that the pastor be released.

It was further averred that notwithstanding such action of the Church, the defendant Wilder, on June 14, 1964, wrongfully undertook to and did conduct the services in said Church, and declared that he would continue to act as its pastor, conduct its worship services and to transact such business of the Church with regard to its property as he determined. The petition alleged that the members of the Church would thus be deprived of their right to conduct the business of the Church and its property, and that the Church would sustain injury to its reputation, credit and spiritual influence. The prayer was for an order restraining defendant Wilder from convening, conducting or participating in any meeting or services of the Church or in the use or disposition of the property, cash or assets; that he be ordered to show cause why a temporary injunction to the same effect should not be issued, and that upon a final hearing, said injunction be made permanent.

On June 26, 1964, an order to show cause on July 8, 1964, as prayed, was issued and a bond of $250 was required of the plaintiffs. On July 8, 1964, defendant Wilder filed a motion to dissolve the temporary restraining order on the grounds that the matters involved were ecclesiastical; that the court was without jurisdiction and that he was the duly qualified pastor of the Church. Thereafter, on the same date, eight certain persons claiming as members and officers of said Church, filed a motion to be made “parties defendant”, stating that no final action in the cause could be made without officers and members of the Church participating. The court thereupon ordered that the applicants be entered as “defendants” and that its temporary restraining order continue in full force and effect.

Thereafter, on the same date, July 8, 1964, pursuant to the suggestion of the court, the following stipulation was filed in the cause and was signed by two counsel representing plaintiffs and by one attorney, later shown as then counsel for defendant Wilder:

“The plaintiffs and defendant by and through their respective attorneys stipulate and agree that the cause be continued generally; that in the interim it is agreed that another general business meeting of the Morning Star Baptist Church will be held on Friday, July 24, 1964, at 8:00 p. m., for the purpose of determining if the pulpit will be declared vacant, and if declared vacant, upon what terms and conditions; that the meeting of July 24, 1964, will be moderated by the Rev. W. H. White, Pastor, Immanuel Baptist Church, Kansas City, Missouri; that this meeting and its purpose will be announced from the pulpit of the Morning Star Baptist Church on Sunday, July 12, 1964, and on Sunday, July 19, 1964, and that the Rev. W. H. White is authorized to use any other means that he considers necessary and proper to notify the members of the meeting; that the Rev. J. A. Wilder will be paid $100 per week through the date of the meeting; that if the pulpit be declared vacant, the amounts paid to Rev. Wilder between June 12, 1964 and July 24, 1964, will be deducted from any severance pay given him.
(Signed) Lewis W. Clymer
(Signed) Harold L. Holliday
(Signed) W. Franklyn Clark.”

The record shows no exception then made to the above stipulation by the additional “defendants” above named, either in person or by their separate counsel James Wilson Spencer.

On September 23, 1964, the plaintiffs filed a motion to make permanent the injunction against defendant Wilder, as prayed, setting out facts purporting to show full compliance with the terms of the stipulation, reciting the reaffirmation of the vacation of the pastorate by the overwhelming majority of the members present, and defendant Wilder’s continued refusal to abide thereby or to surrender possession of the Church parsonage.

On September 28, 1964, the additional “defendants” above mentioned jointly filed a motion in the nature of an interplea, to dismiss all formal pleadings of the plaintiffs to deny the plaintiffs all injunctive relief and to enjoin the plaintiffs from interfering with the restoration of the defendant Wilder to the Church pulpit. The motion challenged the jurisdiction of the court on the ground of invalidity of the disposition of the Church pastorate.

On the same date, September 28, 1964, the trial began and the appearances were shown to be two attorneys for the plaintiffs and “Messrs. James Wilson Spencer and W. Franklyn Clark appearing for ‘defendant’”. (Italics supplied).

Upon the hearing on the merits of the case an expert of 68 years as pastor and arbitrator in the Negro Baptist Church, whose impartiality was acknowledged, was produced by the plaintiffs. He testified that in the absence of a written agreement with the pastor of the Church, a majority vote of its voting members is sufficient to dismiss a pastor, because of its independent form of government; that in 99 percent of Negro Baptist churches elections on the pastorate are not held annually nor for a definite term; that the deacons pf the Church first undertake to change the attitude of a pastor complained of; that if such move is not successful, the deacons recommend his dismissal to the Church with their reasons therefor. He said that if the matter is referred to a council to hear, the decision may be ignored by the Church and its decision would still stand.

At this point the plaintiffs dismissed as to the codefendants but, upon objection, the court retained them in the case as “in-terveners.”

Plaintiffs introduced the minutes of the Church meeting on July 24, 1964, provided for in the stipulation hereinabove quoted. The minutes referred to the meeting as a “called” meeting and recited that the meeting grew out of a court hearing on July 8, 1964, in which attorneys for both plaintiffs and defendant were in agreement that the matter in controversy should and could be settled out of court, with the proper proceeding and proper notice. The minutes recited that after proper notice the meeting was opened at 8:25 p. m.; called to order by the chairman of the Board of Deacons; that hymns were sung and a prayer service had, and Rev. W. H. White then took over the meeting as the “court appointed moderator”; that he stated the purpose of the meeting and permitted questions of any who did not understand the nature of the issue at hand. The minutes also stated that the moderator then qualified the members for voting and entertained a motion on the issue of the vacation of the pulpit; that a motion was made by John W. Williams that the pulpit would remain vacant as of June 12, 1964, as so voted by the membership; that the motion was carried by a standing vote of 162 to 67. Another motion was shown to the effect that the defendant Wilder receive 60 days’ severance fee, which motion was carried 159 to 66.

There was testimony that at the meeting of July 24, 1964, Rev. White asked all members to stand and that all stood. Out of a membership of 500 or 600, 229 were present at the meeting. The minutes of a previous meeting of January 17, 1964, were read in evidence, recording the report of the deacons when defendant Wilder was employed as pastor, which described the terms of the employment, namely, that the Church agreed to pay the utilities at the parsonage; that the Rev. Wilder was to be paid a salary of $400 per month; that the Church was to advance him one week’s salary and pay him one week at a time; that the Church was to pay $45 per week rental for a parsonage until the Church parsonage was ready for occupancy. The minutes of the meeting of July 24, 1964, also stated that it had been announced in the newspaper “The Call”, by radio, by the Church bulletin, and personally by Rev. White. Payments to Rev. Wilder were shown paid as agreed, except $100 was withheld until he surrendered the parsonage and which the Church was prepared to pay.

In behalf of defendant Wilder and the intervening parties, the printed rules and regulations of the Church were introduced without objection. Rule 2 was read as follows: “Discipline cases shall be disposed of as outlined in Hiscox’s Standard Manual for Baptist churches, since this book is recognized by civil courts as well as accepted by the National Baptist Convention, U.S.A.”

A book entitled “Hiscox’s New Directory for Baptist Churches” was introduced, and from its text certain rules were read as to procedure in the trial of discipline cases, requiring opportunity to persons tried by the Church as to time and place to vindicate themselves; their right to copies of the charges made, names of accusers, confrontation, copies of records of the proceedings and designation of who may partcipate in the hearings. The testimony was that such rules were in effect when defendant Wilder was made pastor of the Church. The trial court, however, stated that he had heard no charge of misconduct or wrongdoing against defendant Wilder, and that the only issue was whether at a meeting of the Church membership the Church pulpit had been declared vacant. The court withheld ruling on an objection that the text of the book as read did not apply to ministers, but to members on trial.

There was testimony that on June 7, 1964, the chairman of the Board of Deacons inquired of Rev. Wilder if communion would be served that day, to which the pastor replied that he knew no reason why it should not be, to which the chairman answered that he would not serve it; that the pastor then stated that because of the chairman’s conduct he would have to he disciplined and that for thirty days another deacon would be appointed to serve communion and to take charge of the Board of Deacons. A witness testified that one deacon announced at the Church service that there would be a meeting of the Board of Deacons the following Monday night, and a called business meeting-Friday night. Rev. Wilder inquired if such announcements had been made upon notice to him or with his consent, and stated that to his knowledge there would be no such meeting. There was, however, a meeting on. Friday night, called by defendant Wade. No nonmembers of the Church were present except two counsel for the defendants.

It was in evidence that at the meeting of July 24, 1964, there were no charges filed or presented against defendant Wilder. The court stated that the meeting of that date had been called by the Court and that the legality of the call could not be questioned; that the stipulation was binding on all the parties.

The defendant Wilder testified that at the time he was invited to become pastor of the Church, the matter of salary was discussed by correspondence, including the temporary occupancy of living quarters until the completion of the Church’s own parsonage, which matter he had left to the Church for determination. He said he had lived temporarily at the home of a relative at the expense of the Church until the old parsonage was sold and a new one purchased. He said he was later informed that he would have to provide his own furnishings since the Church was unable to do so. He said plaintiff Williams advised him to supply his own furnishings, although he had disposed of his furnishings used in his previous home at Texarkana, Texas; that he had spent $2,295 on the new furnishings. His employment began March 8, 1964. He was paid $100 for the week prior to his induction as pastor; thereafter he was paid $200 on the first and 15th of each month.

Rev. Wilder further testified that he began to notice some discontent and inquired of plaintiff Williams what was the cause of it and invited Williams to suggest a remedy for any displeasure existing, but was unable to ascertain any grounds for complaint. He stated that he had not received any salary from the Church since July 15, 1964; that he was still living in the Church parsonage. One witness said the Church never had agreed to supply the furnishings for the parsonage for defendant Wilder.

Having taken the case under advisement and having considered the suggestions filed by the parties, the court found the issues in favor of the plaintiffs. It found that the Church, an unincorporated religious association, by a majority of its members present at a regularly called meeting of its members or officers, declared the pulpit of the Church to be vacant and thereby released and discharged defendant Wilder as pastor thereof; that thereupon this suit was filed wherein the parties by their attorneys entered into and filed a stipulation agreeing to a further general business meeting of its members, officers and deacons to be held on July 24, 1964, at 8:00 p. m. for the purpose of again determining whether or not the pulpit be declared vacant; that due notices of the meeting were given as required by the stipulation and the majority again determined the pulpit vacant and released and discharged the said pastor as such. It was further found that notwithstanding such final vote, the defendant Wilder had continued to conduct and to participate in the meetings of the Church as its pastor and had occupied the parsonage belonging to it in Kansas City, Missouri. It was therefore decreed that the plaintiffs have judgment against defendants; that defendant Jasper Wilder be and thereby was permanently enjoined from convening, conducting or in any way participating in any meeting or services of the Church, or in any way interfering with the conduct of the business and government of the Church, and from using or disposing of the property, cash or assets thereof, and from occupying the parsonage or residence owned by the Church. A motion of the defendants to set aside the judgment or for a new trial was overruled and this appeal was perfected.

Defendants’ first point on appeal is that this court, reviewing a case in equity, may render its own judgment. This authority is well established. Jackson v. Tibbling, Mo., 310 S.W.2d 909, 914.

Point II, raised on appeal, is that the trial court had no jurisdiction of this cause because the action is one.of an ecclesiastical nature. If that contention be correct, then, of course, the judgment is void and all other points here raised may be disregarded. In conformity with the doctrine of separation of Church and State, civil courts will ordinarily decline to extend their jurisdiction to matters strictly ecclesiastical. They are not concerned with disputes of a purely theological character and the determination of such matters by the proper church tribunals in an authorized manner is binding and conclusive. Henson v. Payne, Mo.App., 302 S.W.2d 44. If, in a given instance, the civil court does not have jurisdiction over the subject matter of the controversy in a religious association, such jurisdiction may not be vested in a civil court by mere stipulation or other form of agreement or estoppel. United Cemeteries Co. v. Strother, 342 Mo. 1155, 119 S.W.2d 762; Briscoe v. Williams, Mo. App., 192 S.W.2d 643, 646. If the controversy, however, involves protection of civil or property rights, even though arising out of a religious dispute, the civil courts will exercise their jurisdiction to protect such rights.

It has been said with good authority that: “While the civil courts have no jurisdiction over, and no concern with, purely ecclesiastical questions and controversies, they do have jurisdiction as to civil, contract, and property rights even though such rights are involved in, or arise from, a church controversy. Civil courts have no jurisdiction over a church or its members, as such, or over its officers or tribunals, except where temporal rights are involved, and will not interfere in the internal affairs of religious organizations except for the protection of civil or property rights; but the civil and property rights of religious societies may be the subject of litigation in a civil court, and the courts have jurisdiction to determine controverted claims to the title, use or possession of church property.” 76 C.J.S. Religious Societies § 86, pp. 873, 876. See also Schwartz v. Jacobs et al., Mo.App., 352 S.W.2d 389, 392; Boyles v. Roberts, 222 Mo. 613, 121 S.W. 805; Murr v. Maxwell, Mo.App., 232 S.W.2d 219, 234; 45 Am.Jur. 749. When property rights are involved, injunction is the proper remedy for settlement of the controversy. Schwartz v. Jacobs, supra; Clevenger v. McAfee, 237 Mo.App. 1077, 170 S.W.2d 424, 427; Fulbright et al. v. Higginbotham, 133 Mo. 668, 34 S.W. 875; Henson v. Payne, supra; State ex rel. and to Use of Northside Church of God et al. v. Church of God et al., Mo.App., 247 S.W. 2d 542, 546.

In the instant case the petition for the injunction pleaded, among other allegations, that the defendant Wilder, notwithstanding his alleged dismissal, declared his intent to “continue to take such action and to transact such business with regard to the business and property of said Church as he determines”, and the prayer seeks to enjoin him "from interfering with the conduct of the business and government of said Church or in the use and disposition of the property, cash or other assets of said Church.” The orders to show cause included inquiries into “the use and disposition of the property, cash or other assets of said Church.” The temporary injunction restrained Wilder from interfering with the “use and disposition of the property, cash or other assets of the Church.” The motion to make the injunction permanent sought to prevent interference “in the use and disposition of the property, cash or other assets of the said Church, particularly in the use or occupancy of the parsonage or residence owned by the plaintiffs, which is commonly known and numbered as 6055 Swope Parkway, Kansas City, Missouri, * * * ”, and avers that said defendant refused to surrender possession of said residence property. The prayer was that, among other things, said defendant be enjoined from interfering with said residence property of the plaintiffs.

In the motion of the eight interveners for dismissal of plaintiffs' pleadings and for counter relief, they charged the plaintiffs with a denial of Rev. Wilder’s “property rights (salary and other material benefits).”

Needless to say, the right of the owner of real estate to its use and occupancy as against one occupying it without the consent of its owner, is “a property right.” Likewise, the right of the occupant to salary for alleged services rendered to the owner; the right to possess, manage and control one’s “cash and other assets” as against another without the owner’s consent, are “property rights.” McAlister v. Pritchard, 287 Mo. 494, 230 S.W. 66, 67; 6 Words and Phrases, First Series, p. 5693; Black’s Law Dictionary, Fourth Edition, p. 1382. We cannot escape the conclusion that this case involved property rights and authorized the jurisdiction asserted by the trial Court, notwithstanding the ecclesiastical aspects of the controversy.

Defendant’s Point III challenges the court’s jurisdiction because it did not first ascertain if a proper Church tribunal had determined the vacation of the pulpit. While the mere legality of removal of the Church pastor is usually an ecclesiastical matter for the determination of the Church’s tribunal with which the civil courts may not interfere, yet as we have ruled above, when such removal involves the use and control of the Church property, the civil courts will exercise their jurisdiction. “Where property or civil rights are involved in the removal or discharge of a minister, the courts have jurisdiction.” 76 C.J.S. Religious Societies § 89, p. 881. See Trett v. Lambeth, Mo.App., 195 S.W.2d 524; State ex rel. and to Use of Northside Church of God et al. v. Church of God et al., Mo.App., supra.

Upon examination of the book entitled “Hiscox’s New Directory for Baptist Churches”, adopted by the Church and introduced in evidence by defendants, from which certain rules of procedure in church trials were read into the record, it appears that the rules quoted are appended to and are explanatory of the chapter on trials of members for various offences, and that the author, in a separate special chapter treats of procedure in the trial of ministers whose conduct is believed to render them unfit to discharge their sacred office. In such cases the author suggests reference of such matters to a council for hearing and suggestions, in which proceeding the minister would have a right to appear, to have copies of charges and to examine and to hear the witnesses. The author points out, however, that such councils are advisory only; that they have no ecclesiastical authority; that judicial acts belong to the church, not the council; that the church is not obliged to accept the decision of such council if deemed wrong and unwise. The exception taken to the rules introduced, on the ground that they were inapplicable to the controversy at hand, was well taken. Furthermore, as we have noted, and as found by the court, there were no charges of Rev. Wilder’s misconduct pleaded or proved in this case, the sole issue being whether or not the existing pastorate be terminated.

Being thus vested with jurisdiction, the trial court in the case at bar properly proceeded to consider the attacks made by the defendants in their pleadings as to the fact of the defendant Wilder’s dismissal. In its capacity as a court of equity the court found that defendant Wilder had been dismissed as pastor of the Church by the members, deacons and officers on June 12, 1964, at a regularly called meeting; that thereafter this suit was filed, whereupon a stipulation had been entered into by the parties plaintiff and defendant through their respective attorneys, agreeing to another such meeting on July 24, 1964, to determine if the pulpit of the Church would be declared vacant; that upon said date, after due announcement, the meeting was held and it was again determined that the pulpit be declared vacant, and that defendant Wilder be released and discharged as pastor of said Church.

Defendants’ Points IV and V are that' the court abused its- discretion in issuing the temporary injunction ' without a hearing and for an unreasonable time and upon insufficient evidence. We deem the record sufficient to support the judgment as against those charges.

In Point VI the defendants claim error in a series of specifications as follows :

(a) That the court erred in overruling defendants’ motion to dismiss the plaintiffs’ petition. We find the record sufficient to support that ruling of the court.

(b) That the court erred in declining injunctive relief to defendants and refusing to restrain plaintiffs from interfering with defendant Wilder’s restoration to the pulpit. Such action is likewise supported by the evidence and the record.

(c) That the court improperly limited defendants’ evidence when plaintiffs dismissed their case as to the interpleaders, referred to in the record as “defendants”, and in ruling that the interpleaders were bound by the stipulation.

A stipulation is a proceeding in court under the court’s supervision and is binding upon the court and counsel until attacked or set aside. Landers v. Smith, Mo.App., 379 S.W.2d 884, 888; Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1004; 83 C.J.S. Stipulations § 1, p. 3. “Stipulations entered into by the original parties have been held binding not only on them, but on others coming into the case by intervention.” 83 C.J.S. § 14, p. 36.

According to the record the stipulation in this case was filed after the inter-veners were entered as “defendants” on their motion. It was signed, it is true, by an attorney, later shown to represent defendant Wilder at that time, but no objection was then made by any representative of the intervening parties. To the motion of the plaintiffs to make permanent the temporary injunction, the intervening parties “defendant” filed a motion to dissolve the restraining order; to dismiss the. cause for want of jurisdiction and for counter injunctive relief, but made no obj ection to the stipulation. At the beginning of the trial the appearances showed both the attorneys for Wilder and for the inter-veners as representing “the defendant.” In the course of the trial one attorney stated he represented Wilder, and the other said he represented the intervening “defendants.” Thereupon plaintiffs dismissed as tO' the intervening “defendants”, the court ruling that the latter could remain in as “interveners.” It was then claimed by counsel for the interveners that they were not bound by the stipulation. Some of their number had, meanwhile, attended the second Church meeting provided for by the stipulation. The notice of appeal was filed “for the defendants” and signed only by the counsel previously representing merely the interveners. In its findings the Court held that the stipulation was entered into in behalf of the plaintiffs and the defendants.

It appears apparent from the record that the interveners accepted the provisions of the stipulation, to abide by them for better or for worse; that they made no objection thereto when filed nor attacked the same by their separate pleadings, and by their conduct recognized the propriety of the stipulation as suggested by the court. They are now estopped to maintain the contention that they are not hound by the terms of the stipulation.

Finding no errors substantially affecting the merits of the case, the judgment should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion of DEW, Special Commissioner, is adopted as the opinion of the Court, and the judgment is affirmed.

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.


text:
    J. M. ROBERTS, d/b/a Roberts Realty Company, Plaintiff-Respondent, v. Clara GILCHRIST, Thomas P. Gilchrist, Mary K. Pinceti and Gladys Genive Gilchrist, Defendants-Appellants.
    No. 24229.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      John P. Ryan, Kevin Kirwan, Kansas City, for appellants.
    Robert J. Coleman, Kenneth E. Bigus, Kansas City, for respondent.
   SAMUEL A. DEW, Special Commissioner.

Plaintiff brought this action in two counts. Under Count I he seeks determination of the rightful ownership of $500 deposited with him by defendants Richard Chamberlain and Lawrence Ferns, copart-ners, doing business as the Commercial Laundry & Dry Cleaning Machinery Sales. The deposit had been made in connection with a written proposal procured from them by the plaintiff for a lease of certain real estate belonging to the remaining defendants herein. Count II is based upon an alleged implied contract between plaintiff and defendant owners of the real estate to pay the plaintiff a commission to obtain a tenant to lease the property mentioned. A previous judge of the court, on a prior motion, had heard and disposed of Count I, awarding the $500 to the copartnership. Count II was thereafter tried without a jury and the court found in favor of plaintiff, awarding him a commission of $4,740, with interest accrued of $912.45. From this judgment, defendant owners have appealed. There was no appeal from the disposition of Count I.

Hereinafter, any reference to the defendants by that designation is intended to apply to the appellant owners, the admitted joint owners of the real estate in question, to-wit: Clara Gilchrist, Thomas P. Gilchrist, her son, Mary Pincetl, her daughter, and Gladys Genive Gilchrist, former wife of Thomas P. Gilchrist.

In Count II the plaintiff, a real estate operator, alleged an implied contract between him and the defendants to obtain a lessee for their real estate located in Kansas City, Missouri, at 7122 Prospect Avenue, upon a ten year lease at a rental of $750 per month net to them, and to pay the plaintiff a commission out of any excess rental, over $750 a month, which he might obtain; that plaintiff procured a written proposal from the above named copartnership for a ten year lease at $790 per month and he obtained a deposit of $500 from the proposed lessees, who were ready, able and willing to execute such proposed lease, whereupon defendants became obliged to pay plaintiff his commission. It was averred that said lease was never executed, either because of breach on the part of the copartnership, or on account of the delay on the part of the defendants in accepting and submitting a lease in accordance with the proposal. The prayer was for a judgment of $4,740, as a reasonable compensation, with interest and costs.

Attached to the petition as plaintiff’s Exhibit “A” was a copy of the proposal referred to, signed on its margin by the copartnership, by Richard Chamberlain, later introduced in evidence. It was addressed to the plaintiff, was dated February 2, 1961, and requested plaintiff to submit its terms to the owners of the above property. It proposed a ten year lease, effective June 1, 1961, with an option to the lessees for an extended period of five years, the rental to be $94,800, payable $790 per month in advance. It described the nature of the occupancy and recited the deposit enclosed of $500 to the plaintiff to be returned if the lease was not negotiated. It reserved the right of the parties to approve the final form of the lease and contained these words: “This offer expires 12:01 p. m. February 6,1961.” (Italics supplied.) Spaces appeared at the end to indicate approval or rejection by the owners.

The copartners, Chamberlain and Ferns, filed a separate joint answer to plaintiffs petition on June 7, 1961, including a counterclaim as to Count I. They denied any breach of obligation on their part respecting a proposed lease, and prayed judgment that they were the rightful owners of the $500 deposit. As to Count II, they asserted that they “were ready, willing and able to enter into a lease with the rightful owners of the real property allegedly described in Count I of plaintiff’s petition until 12:01 p. m. February 6, 1961”, but denied that they “were able, ready and willing to enter into a lease thereafter.” They affirmatively alleged as a fact that they were not able, ready or willing to enter such a lease since that date.

The complete record of the adjudication of ownership of the $500 deposit on prior motion by another judge is not before us, but the trial court was advised by counsel for the plaintiff that the prior judge “had decided that and the $500 was returned to the Laundry Sales Machinery Company.”

By their separate answers to Count I, defendants Thomas P. Gilchrist and Clara Gilchrist admitted executing a lease along with Mary Pincetl to the property described, but alleged insufficient knowledge of the remainder of the petition to form a belief as to the truth thereof. In her separate answer, Gladys Genive Gilchrist, former wife of Thomas P. Gilchrist,' attacked Count I as insufficient to state a cause of action, and, as to Count II, admitted the joint ownership of the property and denied generally the remaining allegations of the Count.

Mary Pincetl, in her separate answer, admitted the joint ownership as pleaded in Count I; denied that she employed the plaintiff to get a tenant to lease the property upon the terms pleaded, or that she agreed to pay the plaintiff any commission out of rentals exceeding $750. She alleged that she received a telephone call from the plaintiff in early February, 1961, requesting an exclusive listing of the property for lease which she refused, but told him the property was available for lease. She pleaded that he then came to her home and requested her to sign plaintiff’s Exhibit “A”, a proposal for a lease, which she refused to sign, telling him that she would have to consult her attorney. She further pleaded that on March 31,1961, she did sign the proposal and signed a lease to the proposed lessees, which were delivered to her by plaintiff’s attorney, and which she had returned to plaintiff. She stated in her answer that she was informed by plaintiff a week thereafter that he was having a little difficulty in getting the proposed tenant to sign the lease. She further alleged that plaintiff had urged her to take the $500 deposit early in February if she would sign the proposal, which she declined to accept, explaining that she would have to consult her attorney. She stated that the proposed lease was later signed by her and the other defendants. As to Count II, her answer was in the nature of a general denial.

Plaintiff’s evidence tended to show that on February 2, 1961, he and his employee Robert Sweniger, saw a “For lease” sign on the building in question, then occupied by the Kroger Grocery Company, which sign also contained a telephone number; that they drove to their office and Mr. Sweniger called the number. A lady answered. He asked her if she was the owner of the property where he had seen the sign, and she “indicated” that she was. She then gave her name, said she was the owner and that the property was for lease. She discussed the rental rate, stating that it would have to be $750 per month net, and any commission would have to be paid out of any rental obtained in excess of that amount, the lease to be for a term of at least five years.

Regarding the telephone conversation above mentioned, witness Sweniger was asked:

“Q. Now, didn’t she tell you that she was one of the owners of the building? Isn’t that the conversation?
“A. She said it was a family affair.
“Q. She told you it was a family affair? A. Right.
“Q. Did she give you the names of all the owners of the building? A. No, sir.
“Q. You knew that there were other people involved in it, though? A. Well, it was just a general statement, yes, sir.”

Plaintiff’s further evidence was that in the evening of that same day, February 2, 1961, “as a result” of the information so obtained, plaintiff and Sweniger procured from Chamberlain at his residence, his signed proposal in behalf of his company, later introduced in evidence, and his deposit check for $500; that both then went to1 Mrs. Pincetl’s home the next morning, Friday, February 3, 1961; that they did not then ask her for the legal description of the property nor the names of the joint owners, nor did they offer her the $500 check, but informed her of it. They did not see Mr. Gilchrist or his mother while there and never saw defendant Gladys Genive Gilchrist. Mrs. Pincetl told them on that occasion that she wanted to talk to her attorney, and discuss the lease and the financial condition of the proposed lessees, but she made no objections to the proposed terms of the lease, if accepted. She did not sign the proposal, which was left with her.

The plaintiff testified that while he did not discuss the ownership with Mrs. Pincetl when presenting the proposal, she was the owner “so far as he knew.” He said that on March 13th or 14th, 1961, he took the proposed lease to her, met her mother and brother and was told by them of the joint ownership and the names of the owners, not mentioning Gladys Genive Gilchrist. Thomas Gilchrist asked that the lease be left so that he might look it over and discuss it with their attorney. They made no objections at that time to any of the terms of the lease. Meanwhile, he said, Mr. Chamberlain had not withdrawn his offer.

Plaintiffs further evidence was that considerable delay occurred in the drawing of the lease, two sets being drawn by counsel due to corrections; that a suit had been pending by Gladys Genive Gilchrist to establish her interest in the property in which suit her signature was obtained under stipulation filed, and the signed lease was delivered to plaintiff on April 14, 1961. The plaintiff then requested the proposed lessees to sign the lease, which request they denied and demanded the return of the $500 deposit.

In behalf of defendants, Mary Pincetl testified that on account of the illness of her mother and brother they were living with her during the period with which we are here concerned; that she and they and Gladys Genive Gilchrist, were the joint owners of the property involved. She stated that on February 2, 1961, Mr. Sweniger called by telephone and asked if she was the owner of the property advertised for lease where he had seen the sign. She said she replied that she was “one of the owners.” (Counsel for plaintiff, in his opening statement, said such was her reply). She said Mr. Sweniger came out to her home the next day with the proposal and that she explained to him that she could not sign it alone, that the owners would have to be consulted, and would want to consult their attorney and investigate the proposed lessees. She refused to sign the proposal at that time, but did sign it along with the lease about March 30, 1961, and delivered the same to plaintiff. She failed to indicate either space for approval or rejection on the proposal. She said the lease had never been sent back to the defendants by plaintiff. Mr. Sweniger had told her he was having a little difficulty in getting the proposed lessees to sign the lease. He later told her they had refused to do so.

Mrs. Pincetl further testified that after the proposal was left with her she explained to her mother and brother about it and about the discussion relating to a commission; that later, when the plaintiff and Mr. Sweniger brought out the lease she introduced them to her mother and brother. She denied that anything was said to her then about the proposed lessees “being about to back out” if the matter were further delayed.

Thomas Gilchrist testified that when plaintiff brought the proposal to his sister’s home on February 3, 1961, plaintiff came up to the witness’s bedroom; that witness was then ill after long confinement in various hospitals and had undergone several operations; that his mother, age 75 years, vas confined to her bed, having just returned from the hospital after a gall bladder operation; that he did not talk with the plaintiff; that he never employed the plaintiff as his agent. He admitted signing the lease about the middle of the following April, 1961. He explained that during his absence, his mother had looked after their property, but since her illness, his sister was looking after it, and had advertised it for lease following the tenancy of the Kroger Grocery Company expiring June 1, 1961. He recalled that when plaintiff brought the lease out, plaintiff told him he was trying to get a tenant for the property, to which the witness made no response. He said he knew that if the lease was accepted, there would be a commission to be paid the agent.

A request for a finding of facts having been made, the court found that plaintiff was a licensed real estate broker; that the property involved was jointly owned by the defendants; that the defendants advertised it for lease; that there was an implied contract of employment of plaintiff to find a tenant for the property; that defendants were willing to pay plaintiff a commission for an acceptable lease; that defendants Clara and Thomas Gilchrist and Mary Pincetl knew that plaintiff was a broker and was attempting to find a lessee; that Gladys Genive Gilchrist relied on the other defendants to rent the property and had no objection to the employment of an agent; that plaintiff procured a tenant who was ready, able and willing to lease the property and was acceptable to the defendants; that a reasonable commission on a ten year lease at $790 per month was $4,740; that plaintiff demanded his commission on May 4, 1961 and was entitled to that amount, with interest at 6 percent from that date.

The court’s findings of the law in the case were that plaintiff was employed as agent by the defendants; that he was entitled to a commission from all of the defendants in the amount of $4,740, with interest thereon at 6 percent from May 4, 1961, of $912.45. Judgment was entered accordingly.

Defendants’ first point of error, in substance, is that the court, in finding that there was an implied contract of agency between the plaintiff and the defendants, failed to distinguish between the conditions existing under and during the term of the written proposal and the situation of the parties from and after the proposal had expired. The defendants had asked for a finding “that the plaintiff presented an offer dated February 2, 1961, which was not executed before the expiration date.” It will be recalled that the court made no finding as to the written proposal or its terms, or its specified expiration at 12:01 p. m. February 6, 1961.

There must be borne in mind several basic principles of law which apply in such cases as the one at bar. The general rule is that “ * * * if a broker procure a purchaser who is ready, able and willing to buy on the seller’s terms, the broker is entitled to his commission whether or not the sale is consummated.” Kyle v. Kansas City Life Ins. Co., 356 Mo. 331, 201 S.W.2d 912, 913; Chamberlain et al. v. Amick, Mo.App., 210 S.W.2d 528, 529, 530. This law applies to leases as well as sales. 12 C.J.S. Brokers § 85a, p. 191. The agency need not be in writing but may be implied. 12 C.J.S. Brokers § 13, p. 35.

The trial court, in finding that plaintiff had produced a tenant, who was ready, able and willing to lease defendants’ property and was acceptable to defendants, presumably assumed the binding effect and sufficiency of the proposal and disregarded its brief and abrupt duration, and its effect on plaintiff’s duty thereafter to provide a tenant ready, able and willing to execute the lease, or the court ignored that circumstance as of no consequence in determining the plaintiff’s performance. In so doing we are of the opinion that the court erred.

In Point II the defendants claim that the plaintiff failed to prove that he produced a tenant ready, able and willing to make the lease. Referring to the proposal they maintain that even if it were otherwise sufficient, its limited duration deprived the defendants of a reasonable time to investigate the financial ability of the proposed lessees, the nature of their occupancy, their personal traits and the genuineness of their signatures, and the like. They point out that the plaintiff had been informed of the fact that there were several joint owners, only one of whom they had contacted, and that she did not represent the others as their agent; that Mary Pincetl had told him and Mr. Sweniger that the family would have to be consulted as to any lease on the property; that a reasonable time would be necessary to consult their attorney to investigate the financial ability of the proposed lessees and their type of business.

The proposal was obtained on the evening of February 2, 1961. It was presented to Mary Pincetl the next morning, Friday, February 3. With Saturday and Sunday intervening, the express provision of the proposal gave defendants until 12:01 p. m. on Monday next to sign and accept its terms. It was not signed by them at that time and was left in Mrs. Pincetl’s possession.

Had Mrs. Pincetl signed the proposal at any time during its fleeting duration, she could not have complied with it since, so far as the proof shows, she had no authority to bind the other joint owners, nor reasonable time to obtain such authority. Nor could she alone have enforced the proposal, for the same reason. Neither could the proposal be enforced by or against the other joint owners, not being parties thereto. Of these facts plaintiff was aware, having been told of the joint ownership, and he is presumed to have known that a reasonable time would be required to effect a proper acceptance.

It is said in 12 C.J.S. Brokers § 85b, pp. 194, 195:

“Although it is not necessary that the broker produce a purchaser known to the owner to be able, ready, and willing to execute the contract, the owner is entitled to a reasonable opportunity for investigation as to the customer’s ability to comply with the contract, ‡ * * »

Certainly it cannot be maintained that defendants, even if otherwise bound, had impliedly contracted with the plaintiff to procure a tenant on terms that would preclude their reasonable opportunity to investigate the proposed tenancy. If an offer can be so limited as to time for investigation, it could be limited to a matter of hours.

That the proposed lessees ceased to be ready, able and willing to make a lease after and beyond 12:01 p. m. Monday, February 6, 1961, is definite and certain. Not only did the proposal specifically so provide, but they so declared in their subsequent letter to plaintiff refusing to execute the lease, and also pleaded the same in this case wherein the court ordered their deposit to be returned. For a ruling of this court on such express limitation, see Sharp Bros. Contracting Co. v. Commercial Restoration, Inc., Mo.App., 334 S.W.2d 248, 252, quoting 17 C.J.S. Contracts § 51b, p. 714:

“An offer comes to an end at the expiration of the time given for its acceptance, a limitation of time within which an offer is to run being equivalent to the withdrawal of the offer at the end of the time named.”

See also 12 Am.Jur., Contracts, par. 56, p. 547; Kalivas v. Hauck, 365 Mo. 923, 290 S.W.2d 94.

The result is that as of Monday, February 6, 1961, at 12:01 p. m., there is no proof that plaintiff had procured a tenant for the defendants, ready, able and willing to execute a lease. Consequently, for proof of such performance of a broker’s duties thereafter the plaintiff must rely on the evidence of his transactions subsequent to that date.

Defendants’ Points III and IV are deemed repetitious and fully disposed of under Points I and II. The fact that after the termination of the proposed lessees’ offer by their own specification and without fault of the defendants, as we have found, the plaintiff continued to negotiate with defendants, and the fact that defendants co-operated and supplied the necessary signatures to the lease on or about April 14, 1961, and delivered same to plaintiff, did not relieve plaintiff from his duty to produce a tenant ready, able and willing to accept it, which, as the evidence showed, the plaintiff failed to do. Under the law and the evidence in this case, plaintiff’s claim for commission cannot he sustained.

The judgment should be reversed. The Special Commissioner so recommends.

The foregoing opinion of SAMUEL A. DEW, Special Commissioner, is adopted as the opinion of the Court, and the judgment is reversed.

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.


text:
    Mary C. CARUSO, Plaintiff-Appellant, v. The WESTERN CASUALTY AND SURETY COMPANY, Defendant-Respondent.
    No. 24250.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Austin B. Speers, Kansas City, for appellant.
    Edw. W. Mullen, Kansas City, for respondent.
   JAMES W. BROADDUS, Special Commissioner.

This is an action upon a policy of insurance. Plaintiff seeks to recover medical expenses which she incurred amounting to the sum of $265.

Plaintiff was involved in an automobile accident on September 6, 1961, when her car was struck in the rear by another vehicle. The policy sued on contained the following provision:

“As soon as practicable the injured person or someone in his behalf shall give to the company written proof of claim, under oath if required, and shall, after each request from the company, execute authorization to enable the company to obtain medical reports and copies of records. The injured person shall submit to physical examination by physicians selected by the company when and as often as the company may reasonably require.”

Plaintiffs petition alleged: “That on September 6, 1961, plaintiff called agent William T. Smith and informed him of said accident and facts of same, and of her injury; that agent William T. Smith told plaintiff, ‘I will take care of everything.’ ”

The case was tried to the court, a jury having been expressly waived by agreement of the parties. Prior to the introduction of any evidence plaintiff’s counsel stated to the court that “the main issue is the notice to the company.” The trial judge stated that was the issue he saw. The parties agreed that the question of notice as alleged in the petition was the only issue to be determined by the court; that if the court found that plaintiff did on the day following the accident, notify defendant that she was injured and that there would be a claim made under the medical payments provision of her policy, then defendant was liable for the amount of her medical bills, and that if the court found that she did not so notify the agent on the day following the accident as alleged in the petition, the defendant was entitled to judgment in its favor.

At the conclusion of plaintiff’s evidence defendant moved for a directed verdict and judgment in its favor upon the ground that plaintiff had failed to prove notice or compliance with the condition precedent in the policy, whereupon the court stated its finding that there was no evidence of notice, the sole issue which the parties agreed to try, and sustained defendant’s motion and entered judgment in its favor. Plaintiff has appealed.

Plaintiff’s evidence not only fell far short of proving compliance with the policy conditions, but also fell short of proving the allegations of her petition. On her direct examination plaintiff testified that the accident occurred on September 6, 1961, but that she did not notice any pain at that time nor until about four or five days afterward. She repeated this on further direct examination by stating that after the accident she “didn’t feel anything, you see. But four or five days after, I started to be dizzy, you know, and my head kind of just twisted a little.” She testified that she reported the accident to her insurance agent, a Mr. Smith, the day following the accident, which was September 7, 1961. She reported to him the damage to her car and where the accident happened. She also testified that she “told him that my head was kind of hurting a little, but I didn’t know if it was going to be any — anything very serious.” That was the total gist of the conversation she had with Mr. Smith on the day following the accident. It was not until seven days after the accident that she first saw a doctor. After she started seeing the doctor she never called her agent and never talked with him again. She only talked with the agent the one time and that was the day following the accident and she never discussed the accident with any member of the company other than the agent.

As stated the parties agreed to submit this cause to the court upon one issue, namely, that if plaintiff notified defendant’s agent on the day following the accident that she was injured and intended to make a claim under the medical provision of her policy, then defendant was liable, and that if she did not so notify the agent on the date pleaded, then defendant was not liable. Notwithstanding that fact plaintiff now complains that defendant never showed that the policy contained a forfeiture provision or that defendant was prejudiced by the failure to receive the required notice “as soon as practicable.”

The law is well settled that where plaintiff has had her case tried on one theory, the case will not be reviewed on any other theory. Pruzan v. National Surety Corporation, 223 S.W.2d 8 (Mo.App.). The Springfield Court of Appeals put it another way in Leckie v. Bennett, 160 Mo.App. 145, 141 S.W. 706, saying that the trial of a cause in an appellate court is a trial of the errors of law committed by the trial court, and that positions taken on appeal will not be allowed which are antagonistic to the positions taken at the trial.

The judgment should be affirmed. Your Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court and the judgment is affirmed.

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.


text:
    Mildred MAHOWALD, Respondent, v. Forrest W. GARRISON, Appellant.
    No. 24255.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Selden M. Jones, Sniezek, Jones & Frid-kin, Kansas City, for appellant.
    Philip C. Ehli, Nolan J. Hepburn, R. C. Moore, Kansas City, for respondent.
   MAUGHMER, Commissioner.

The automobile in which plaintiff Mildred Mahowald was riding as a passenger was stopped for a red light when it was struck from the rear by an automobile operated by defendant Forrest W. Garrison. She sued to recover damages for alleged personal injuries. The trial resulted in a jury verdict and judgment in her favor for $7,500. Defendant’s motion for new trial was overruled upon condition that plaintiff remit $2,500 of the judgment. Plaintiff filed her remittitur in that amount but defendant has, nevertheless, appealed. The appeal presents only two assignments of error. Defendant urges us to reverse and remand because he says (1) the existence of insurance was improperly brought before the jury and a mistrial should have been declared, and (2) the verdict was excessive and the result of bias and prejudice.

The accident occurred about 8:30 a. m. on November 4, 1961 — a Saturday morning —at the intersection of Gillham Road and Linwood Boulevard, in Kansas City, Missouri. Gillham Road runs generally north and south. At the time of the accident it carried six lanes of traffic at its intersection with Linwood, where the traffic was regulated by stop and go signal lights. Plaintiff was occupying the right front seat of a 1951 DeSoto, which was being driven by her sister, Margaret Cross-white. They were on the way to attend a wedding.

It was the testimony of plaintiff and her sister that they were proceeding north on Gillham and occupying the third or right center lane, and as they approached Linwood the light was red, so their vehicle was brought to a complete stop. Plaintiff said: “We were stopped just for a moment or so, and this — well, it was a violent blow, hit us from the rear”. According to plaintiff her hat and her sister’s hat were found in the back seat after the collision. Defendant came up to their car and asked if they were injured.

The defendant Forrest W. Garrison at the time was an assistant in the Traffic Safety Division of the Kansas City Police Department. He was driving an official but unmarked car, and was traveling directly behind plaintiff and in the same traffic lane. Mr. Garrison testified that as he approached the scene he observed a third automobile “switching lanes” and moving from right to left and back again. He said he watched this car to determine if he should stop it. He said that as He neared Linwood, this third vehicle was to his left and his “attention was directed away from the car ahead and traffic ahead”. He declined to estimate his speed at the time of contact, but said he struck plaintiff’s car in the rear and moved it forward about a car length. He asked plaintiff and her sister if they were injured. He said they told him “their necks hurt”.

Mrs. Mahowald and her sister took a taxicab and went on to the wedding. However, they left before the ceremony was completed. Again they called a cab and this time proceeded to the Doctor Clarence Coffey Clinic, located at 1224 East 12th Street, where both were employed. Plaintiff’s employment there was as a receptionist with earnings of $100 per week. Dr. Coffey, an osteopath, was called and plaintiff complained to him at the time primarily of pain in her neck, but with some pain in the right shoulder and low back.

Plaintiff, who was 46 years of age at the time of the accident, continued her work as receptionist up to the date of trial, which commenced on November 2, 1964. She was paid her wages for the whole of the period although there was testimony that she was absent a total of thirty to forty-five working days. On November 17, thirteen days after the accident she traveled by airplane to Minneapolis, where she visited with her mother for nine days. She testified that her ability to perform household work had been impaired, that the grip in her right hand had weakened, that her hand and arm were numb, and said she now suffers and has suffered since the accident with headaches, nervousness and stiffness in her neck. She has taken medicines to relieve the pain. She declared that her health had previously been good.

Three physicians were called and testified on behalf of Mrs. Mahowald. Dr. Clarence Coffey, an osteopath and her employer, examined her a few hours after the occurrence. She complained to him of pain in the neck and right side. Dr. Coffey had rather extensive x-rays taken. He produced no medical records as to findings or treatment but said he had prescribed medication for her neurotension and ultrasonic treatments, which were administered by her sister.

Dr. William L. Doane, M. D., examined plaintiff in his office on October 16, 1964, at the request of her attorneys. He described the earlier x-rays and the ones taken under his supervision as negative but said he found limitation of motion in her neck, muscle spasm in the cervical area, right side, and was of the opinion her condition could well have been caused by the 1961 automobile accident which she had described to him.

Dr. Irving A. Wien, M. D., first examined plaintiff on November IS, 1961. She was referred to him by Dr. Coffey, his close professional associate. Dr. Wien’s findings included: tenderness along the back of the neck and back of the chest. He said he observed pain reflexes which resulted from flexion in these regions, and there was a limitation of motion in bending forward. The x-rays taken earlier by Dr. Coffey were examined by him and found to be essentially negative. Dr. Wien’s diagnosis was “sprained neck, acute, whiplash type”.

Plaintiff was never hospitalized as a result of this accident. The medical report of Dr. Wien is not in evidence but Dr. Coffey said Dr. Wien recommended immobilization, diathermy and “certain medicines”. Mrs. Mahowald has never worn a neck brace or collar, nor did any doctor prescribe one. However, Dr. Coffey said he did on occasions “tape her shoulders”.

Dr. Donald Kirk Piper, M. D., examined plaintiff on October 30, 1964, on behalf of defendant. He found no limitation of motion of the neck muscles, palpation produced no pain reflexes, there was no evidence of muscular wasting or weakness and the circulation was normal. His x-rays were negative.

Defendant on appeal says a new trial should have been granted because the verdict was excessive and the result of bias and prejudice. In his argument and in his brief the allegation of bias and prejudice, which it is charged resulted from improper references to liability insurance, is stressed.

It is true that the evidence here adduced does not show any severe injury or any major disability. Plaintiff has continued with her regular work at the office and in her home, although she says she has experienced difficulty in doing so. There were no broken bones and no defects incurred which were revealed by x-rays. However, plaintiff, while seated relaxed in the front seat of the stopped automobile, was suddenly and without warning, hit from the rear by another automobile with such force as to push the automobile in which she was riding forward about one car length. Injury could easily have resulted. Plaintiff says she has suffered pain, impairment of motion and nervousness, together with disability and a lessening of her capability to work at both her home and the office. The supporting medical testimony indicates some injuries and some disability. Accepting plaintiff’s evidence at its face value, which we must do, since the jury apparently did so, we must conclude that it will support a moderate verdict and judgment. We discussed this subject generally in See v. Kelly, Mo.App., 363 S.W.2d 213, 218, and stated: “As the courts have many times said but using different phraseology, there is no exact measuring stick by which the proper or maximum award which the evidence in a case will support, can be determined. Each case must stand on its own facts. The current purchasing power of the dollar must not be overlooked. The jury and the trial court are in a better position to measure the reasonableness of the award than is the appellate court, where it should not be reduced unless as a matter of law, the amount is more than the evidence will support”. Citing cases. In this See case plaintiff suffered limitation of neck and arm motion and a nerve root irritation. A judgment of $7,500 was approved.

Under all of the circumstances prevailing in the case before us we shall not rule that the verdict is without sufficient evidentiary support or is excessive as a matter of law, so as to require reversal.

We next consider the charge that the verdict was the result of bias and prejudice in connection with appellant’s other assignment that the jury was biased and prejudiced because counsel for plaintiff indulged in intentional and deliberate references and demonstrations for the purpose of bringing the existence of liability insurance improperly before the jury.

Defendant bases his complaint that the existence of liability insurance was erroneously injected into the case upon three trial occurrences. First, the usual inquiries of counsel (made out of the hearing of the jury) revealed that defendant was covered under a liability policy issued by the TriState Insurance Group of Tulsa, Oklahoma. Upon voir dire the prospective jurors were asked if any of them or any member of their immediate family had ever been a stockholder, employee or policyholder of that insurance company. This particular procedure has been followed and this particular question has been asked numerous times in many different lawsuits. It has never been ruled as constituting error. In fact, defendant concedes that such an inquiry, standing alone, is quite proper, but he asks us to consider it in connection with other insurance inquiries and references, and asserts that the cumulative effect resulted in bias and prejudice. Second, during the cross-examination of Dr. Doane, plaintiff’s doctor, who examined her shortly before the trial and for the purpose of testifying, the following colloquy occurred:

“Q (By Mr. Jones, attorney for defendant) Doctor, you have examined persons such as Mrs. Mahowald who claims to be injured in an accident on many occasions, have you not, sir?
“A I have.
“Q And for many lawyers ? A. That is correct, sir.
“Q Representing these injured people, isn’t that right?
“A And for many insurance firms”.

Defendant’s counsel made no objection at the time to any of these answers and we are of the opinion that neither answer was objectionable. We believe the last answer was responsive and was brought about by the inquiries. On this cross-examination of plaintiff’s doctor, counsel for defendant, as he had every right to do, stressed and brought out that Dr. Doane had examined plaintiff at the request of her attorneys and that he expected to be paid by these same attorneys. Counsel then, and he was still within his rights, asked if the doctor had not examined many such plaintiffs on numerous occasions. The doctor answered simply “I have”. Counsel persisted with “And for many lawyers?”. The response again was: “That is correct, sir”. The point was pressed for a third time by the question: “Representing these injured people, isn’t that right ?”. This time the reply was: “And for many insurance firms”. Cross-examination is a powerful and dangerous weapon and sometimes the most skillful tactician is nonplussed and occasionally unhorsed by it. Here the references to medical examinations made for insurance firms was a reasonable response to the cross-examination. Defendant is in no position to complain about it. Third, the fact that Dr. Doane had examined for insurance companies or clients as well as for plaintiffs was referred to on the redirect examination. Again we set out the record verbatim:

“Q (By Mr. Ehli, attorney for plaintiff) And, Doctor, do you examine not only for injured plaintiffs but also for insurance companies? A. I do.
MR. JONES : Just a minute. Your Honor, I object to that and ask the jury be discharged.
THE COURT: The objection will be overruled. You asked about the same thing and got the same answer on cross-examination.
MR. JONES: All right. I want to preserve it and ask the Court to first instruct the jury to disregard counsel’s question.
THE COURT: The motion is denied since you opened up the subject yourself”.

We agree with the rulings of the Court. Defendant cannot successfully predicate error on this brief reference to insurance when the subject was first opened up by his own inquiries. Defendant here on cross-examination sought to discredit or at least dilute the credit of Dr. Doane as a witness by implying that he was a regular examiner and witness for allegedly injured plaintiffs in damage suits. Under such circumstances, redirect examination may be used to explain or clarify such implication and the extent or scope of such rebuttal inquiry rests largely in the discretion of the trial court.

The opinion in Couch v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 617, 623, 624, discusses the matter this way:

“The ordinary function of redirect examination is to afford a witness an opportunity to explain or avoid the consequences of new matter brought out on his cross-examination, and to rebut the discrediting effect of damaging statements or admissions elicited from him. City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003; State ex rel. [State Highway Comm.] v. Bengal, Mo.App., 124 S.W.2d 687. The scope and extent to which redirect examination shall be permitted to go rests largely in the sound discretion of the trial court (State ex rel. [State Highway Comm.] v. Bengal, supra); and where the one party, on cross-examination of a witness, opens up a line of inquiry which is designed to discredit the witness in the eyes of the jury, the courts go very far, as the reported cases show, in permitting the other party, on redirect examination, to bring out those aspects of the matter which are favorable to the witness, even though, without the foundation afforded by the cross-examination, the evidence thus brought out would he wholly unjustifiable”.

Appellant seeks to buttress his position that insurance was improperly injected into the case in the presence of the jury by charging that “Counsel, when he asked about insurance, * * * with his hand singled it directly toward me”; that counsel used improper “inflection of voice” and bad faith motions or movements. Of course, the record itself does not reveal these alleged improprieties. Appellate transcripts do not include sound recordings, motion pictures or television coverage. However, the trial court did observe these alleged instances of misbehavior and in its discretion ruled there was no reversible error. Besides, gestures, motions and voice inflections are generally regarded as part of a lawyer’s trial technique, which he is privileged to use almost as he sees fit, subject only to proper courtroom decorum.

We shall discuss some of the cases cited by appellant. In Murphy v. Graves, Mo., 294 S.W.2d 29, defendant, out of the presence of the jury, denied the existence of liability insurance. Nevertheless, counsel for plaintiff, without any showing that there was insurance, made the usual insurance type of inquiries on the voir dire examination. For this reason and because of highly improper juror conduct, a judgment for plaintiff was reversed and remanded. The opinion is authority for the proposition that where bias and prejudice is shown, a remittitur will not necessarily cure the impropriety since a litigant is in any event entitled to a fair trial and a trial where bias and prejudice is not shown to have existed. Those facts do not fit our case where there is no suggestion or showing of juror misconduct revealing a preconceived opinion of liability on the juror’s part.

In Crapson v. United Chatauqua Co., Mo. App., 27 S.W.2d 722, defendant admitted liability.i Plaintiff attempted to show by reciting a conversation with defendant that defendant was covered by liability insurance. There the existence of insurance was shown by plaintiff and in a case where liability was admitted. The insurance reference was clearly for the sole purpose of inoculating the jurors with whatever latent bias and prejudice they might have against corporations, particularly insurance companies. This case is hardly in point.

This court sent the case of Moore v. Shelly Motors, Inc., 225 S.W.2d 953, back for retrial where, as stated in the syllabus, the record “was replete with accumulation of prejudicial comments, questions, insinuations and accusations on part of plaintiff’s counsel”. It is quite different from the case before us.

In our case the trial court ruled and we agree that the references to insurance on (a) voir dire, (b) cross-examination of Dr. Doane and (c) redirect examination of Dr. Doane, were proper. This being so, the question of mistrial did not arise. We find no authority or suggestion in any opinion that where the testimony complained about was ruled properly admissible, nevertheless, the case should be remanded because of the probable prejudice injected thereby. Whether bias and prejudice arose from plaintiff counsel’s inflection or gestures is a question for the trial court to determine. McCaffery v. St. Louis Public Service Co., Mo., en Banc., 363 Mo. 545, 252 S.W.2d 361, 367. An appellate court cannot hear the inflection, see the motions or observe and estimate the effect on the jury.

Plaintiff’s counsel here mentioned or brought about mention of insurance twice. Once on voir dire and by proper inquiry. In fact defendant suggests no impropriety in connection with the questions propounded on voir dire. Secondly, plaintiff’s counsel in effect once on redirect examination repeated an inquiry which had been made previously on cross-examination by defendant. This, counsel had a right to do, since defendant had opened this particular gate. The insurance reference, collaterally revealed first by defendant’s inquiry, was not persistently or unduly pursued by plaintiff. If bias and prejudice resulted, which we doubt, and which the trial court apparently doubted, it was a risk incurred and assumed by defendant’s questions even though possibly an unexpected and certainly an unwanted answer was obtained.

We rule against defendant on both his assignments of error. No other suggestions of error are made.

The judgment is affirmed.

BROADDUS, Special Commissioner, and SPERRY, C., concur.

PER CURIAM.

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

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.