author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Eddie Lee WASHINGTON, Appellant.
    No. 51275.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Amended on Court’s Own Motion Feb. 23, 1966.

      Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Erwin J. Roesel, St. Louis, for appellant, Eddie Lee Washington.
   STORCKMAN, Judge.

This is an appeal from an order denying a motion under S.Ct. Rule 27.26, V.A.M.R. to vacate and set aside a conviction of rape and a sentence of imprisonment for thirty-five years. The trial court found from the motion and the files and records of the case that the prisoner was entitled to no relief and denied the motion without a hearing. The defendant is represented by counsel appointed by the trial court to brief and argue the appeal in this court which has been done. The principal contentions on appeal are that the trial court erred in denying the motion without a hearing because the motion stated claims that the defendant was not adequately represented by counsel at his trial, that his confessions were coerced and that such issues could not be determined from the files and records.

The transcript shows that the defendant was indicted and convicted of the offense of forcible rape and his punishment was assessed by the jury. He was granted thirty days additional time to file a motion for new trial. Within the time so allowed, the defendant filed a written waiver of his right to file a motion for new trial and to prosecute an appeal. The waiver was signed by the defendant and his counsel, a member of the staff of the Public Defender of the City of St. Louis who represented him at the trial.

On February 21, 1961, the defendant, accompanied by his counsel, presented himself in court and was sentenced in accordance with the verdict. On December 14, 1964, the defendant filed pro se in the Circuit Court of the City of St. Louis his motion under Rule 27.26 to vacate which he was permitted to file and prosecute as a poor person. The judge that ruled on the motion to vacate was the same judge that presided at the defendant’s trial in February 1961.

On December 24, 1964, the trial court denied the defendant’s motion to vacate the judgment and sentence because the court was satisfied from its examination of the motion and files and records of the case that the prisoner was not entitled to any relief. In connection with denying the motion, the court filed a memorandum opinion which reviewed the previous prosecution and gave reasons for the court’s rulings. Our Civil Rule 73.01 provides that the court in a non-jury case shall upon request prepare and file a brief opinion containing a statement of the grounds of its decision and if requested the court may include its findings upon any of the principal controverted fact issues. A motion to vacate and set aside under Rule 27.26 is a civil rather than a criminal proceeding. State v. Herron, Mo., 376 S.W.2d 192, 196 [5].

Although not requested by a party to the action, the memorandum opinion is properly in the record and is quite helpful to the reviewing court. To the extent that it is a statement of the grounds of the decision and constitutes findings on fact issues arrived at from an examination of the files and records in the case, the opinion will be considered by this court. State v. Keeble, Mo., 399 S.W.2d 118 (decided February 14, 1966).

The motion to vacate contains much superfluous and irrelevant material which hinders the search for possible grounds for relief. As the opinion of the trial court states, the person who prepared the motion to vacate for the defendant “was obviously not accurately informed about the case”. For instance, the defendant asserted in his motion that he did not have a panel of 47 jurors and that he was unable to present an alibi defense. Such allegations were demonstrated to be false by the court files and records of the circuit court and quite properly were not briefed for review in this court. The allegations of the motion and the findings of the trial court’s opinion will be mentioned further in connection with the questions presented.

As in other pleadings, the factual allegations of a motion to vacate under Rule 27.26 must be accepted as true in determining if the motion states a claim for relief. State v. Moreland, Mo., 351 S.W.2d 33, 35 [3]. If the allegations of a motion under Rule 27.26 are sufficient to state a claim and do not demonstrate further that the motion is patently or conclusively without merit, the movant is ordinarily entitled to a hearing on the issues raised. State v. Pickel and Proffit, Mo., 376 S.W.2d 181; State v. Herron, Mo., 376 S.W.2d 192, 195 [3]. No hearing is required, however, if the motion and the files and records of the case show to the satisfaction of the court that the movant is not entitled to any relief. S.Ct. Rule 27.26, V.A.M.R.; State v. King, Mo., 380 S.W.2d 370, 373 [4-6], cert. den. 379 U.S. 979, 85 S.Ct. 681, 13 L.Ed.2d 569.

The defendant filed a motion for appointment of counsel to prepare and develop in the circuit court the allegations of his motion to vacate. He charges error in the court’s failure to do so citing Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, and Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. These cases went on certiorari to the Supreme Court of the United States; they involved the right of the accused to counsel at the trial of the criminal charge. They are not controlling in the circumstances of this post-conviction procedure. A motion to vacate and set aside a criminal conviction is in the nature of a civil procedure rather than a criminal prosecution and the defendant is not entitled to counsel as a matter of right solely by reason of indigency. State v. Herron, Mo., 376 S.W.2d 192, 196 [5]. The trial court did not abuse its discretion in failing to appoint counsel “to prepare and develop the allegations” of his motion to vacate.

The defendant further contends that the trial court erred in denying his motion to vacate without a hearing “since charges of inadequate representation by counsel was made” which were not so patently without foundation as to conclusively demonstrate their want of merit. We cannot presume or speculate that Missouri attorneys are incapable or incompetent to handle the defense of a criminal case. The qualification and admission of attorneys to the Bar of Missouri is carefully supervised and controlled by this court. S.Ct. Rule 8. Registration of law students is required. Rule 8.04. An applicant to take the Bar examinations must be a graduate of a law school approved by the Council on Legal Education and Admissions to the Bar of the American Bar Association. Rule 8.03(b). An applicant to register as a law student as well as an applicant to take the Bar examination must stand a searching and meaningful investigation as to character, fitness and general qualifications. Rule 8.07. After the completion of their legal education and training, applicants must pass an examination as to their knowledge of legal subjects prescribed by the Board of Law Examiners and approved by this court. Rules 8.01 and 8.08. Members of the Missouri Bar are also subject to rigid disciplinary procedures. Rule 5. All of this cannot be brushed lightly aside. A convict seeking to set aside his sentence has the burden of alleging and proving that his lawyer, so qualified, rendered legal assistance so “ineffective” that the accused was not afforded a fair trial in violation of constitutional guaranties. State v. Freedman, Mo., 282 S.W.2d 576, 581 [2]. The mere fact of conviction and the bare assertion of “ineffective assistance” of counsel is not sufficient to carry the burden or to state a claim for relief.

Careful examination of the motion discloses two references to inadequate representation in the defense of the rape charge. One allegation is that when he first saw his court-appointed attorney: “He [the attorney] did not do very much: asked where I lived, and told me the date I was going to court.” The other reference is as follows: “The fact that appointed counsel did not even thoroughly investigate the law, facts, and circumstances of the case, but rather sought to induce petitioner to voluntarily plead guilty, did not question nor inquire of petitioner of the manner of the alleged identification which if he had, he could have legally shown it was not admissible because of the manner it was obtained (during petitioner’s illegal and unlawful police detention and custody without a warrant), plainly magnifies his ineffectiveness and lack of ‘Good Faith’ assistance of counsel.” These allegations are mere conclusions which are insufficient to present an issue as to effective assistance of counsel. State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 807 [5]; State v. King, Mo., 380 S.W.2d 370, 376 [13].

The trial court might have properly ruled the issue on that ground alone, but the memorandum opinion further states: “The case was well defended. The Court recalls that it had the personal attention of the head of the Public Defender Bureau of the City of St. Louis. He designated a younger member of his staff to try the case, as a matter of his considered strategy and judgment, hoping thereby to minimize the penalty that might be imposed by a jury if defendant be found guilty. Defendant and his counsel were well satisfied with the verdict at the time it was rendered.” In Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473, the court stated: “What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.” See also State v. Lillibridge, Mo., 399 S.W.2d 25 (decided February 14, 1966). The trial court did not err in refusing a hearing on the allegation of ineffective assistance of counsel.

In the argument portion of his motion to vacate, the defendant alleges he pleaded guilty to a robbery charge after he was convicted of rape because his attorney struck him in the face during a discussion of the disposition of the robbery charge. Other portions of the motion indicate, however, that this unlikely occurrence was not the inducing cause of his plea. Moreover, the trial court’s opinion states there were two robbery charges instead of one and the sentences on them were made to run concurrently with the sentence on the rape conviction. It does not clearly appear that the defendant is attacking the judgments and sentences in the robbery cases. The allegations are wholly insufficient if that was intended. Furthermore, a motion to vacate under Rule 27.26 must be confined to an attack on a single judgment and sentence. State v. Engberg, Mo., 391 S.W. 2d 868, 869 [1].

The defendant’s brief on appeal further asserts that the trial court erred in denying his motion to vacate “since the alleged confession obtained from him was improperly admitted in evidence at the trial in violation of his Constitutional rights under Amendments 5 and 14 of the U. S. Constitution.” The motion alleges that while the defendant was in custody and after he had been identified by the victim of the rape "the police brutality began” and did not stop until he admitted the commission of the rape and the robbery and that “it was very rough from the very first fist blow the police struck me”; that he signed statements admitting the crimes because there was no other way to stop the brutality to which he was being subjected. The motion further asserts that: “The introduction of the statements or confession was inadmissible on trial. This was so even though a preliminary hearing had been held to determine their voluntariness.” It goes on to say that the statements or confession were obtained while he was in illegal custody because his arrest was based on hearsay evidence and no warrant was issued for his arrest.

As admitted in the motion, there was a preliminary hearing to determine the volun-tariness of the confession. This was before the court out of the presence and hearing of the jury. After the court determined that the confession was not coerced, it was admitted in evidence and the jurors were told in substance, as a part of the instructions in the case, that, if they found and believed from the evidence that the defendant made any voluntary statement or statements in relation to the offense charged, they should consider such statement or statements altogether and in the light of the circumstances under which they were made, if they found they were actually made, and if they found the statement or statements were not voluntarily made, but were procured by coercion or threats or through fear, or were induced by promises of leniency, then they should disregard them altogether.

The defendant cites Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, and Spano v. State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. The Missouri practice does not run afoul of the rules laid down in those cases for the determination of the voluntariness of a confession. In Jackson v. Denno, 378 U.S. 368, footnote 7 at page 377, 84 S.Ct. 1774, at page 1781, 12 L.Ed. 2d 908, states that: “Under the New York rule the judge is not required to exclude the jury while he hears evidence as to voluntariness and perhaps is not allowed to do so.” The New York practice was condemned in Jackson v. Denno. It seems the practice of the State of Washington was quite similar to the New York rule. The Missouri practice is indistinguishable in legal effect from the Massachusetts rule as described and impliedly approved in Jackson v. Denno. See also Commonwealth v. Marshall, 338 Mass. 460, 461-62, 155 N.E.2d 798, 800. The Missouri practice contemplates a preliminary or voir dire examination to determine the competency of a confession before it is presented to the jury. This is a full hearing on the volun-tariness of a confession out of the presence of the jury and a finding by the court that the confession was voluntary before it is' admitted in evidence. State v. Howard, Mo., 383 S.W.2d 701, 702 [1]. Thereafter, the witnesses to the circumstances under which the confession was made testify before the jury. The jury then determines the probative value of the confession under the instructions of the court which direct the jury to disregard it entirely if the jury finds the confession was not voluntarily made. State v. Deyo, Mo., 387 S.W. 2d 561, 564, 565 [5, 6]; State v. Howard, Mo., 383 S.W.2d 701, 702 [1]. If the defendant had any complaint that the practice was not followed, he had a right to designate it as a ground for relief in his motion, for new trial and to appeal as a matter of right in the event of an adverse ruling.

On February 21, 1961, well within the time for filing a motion for new trial, the defendant filed a written waiver signed by him and his attorney stating that he “waives his right to file a motion for a new trial and to prosecute appeal, and presents himself for sentence in keeping with the verdict of the jury rendered on the 25th day of January, 1961.” The defendant asserts in his brief that the waiver was not voluntary but was induced by threats and promises; however, his motion to vacate does not support this contention. In fact, the motion does not mention the waiver at all. Regarding the disposition of the robbery charges, the motion asserts that after a conference with his attorney and the prosecutor, the defendant went back to his cell with the suggestion that he “Think it over.” The motion then further states: “Mrs. Hubbell [a social worker] come to see petitioner that same week. She said that the attorney had told her what he had told petitioner (about pleading guilty, coming to prison, and probably being paroled after 4 years). Petitioner asked her what should he do; she said she did not know, but that he should do what he thought best. After she left, he asked some of the older prisoners what should he do, they suggested he go to his cell and think about it. But they also warned: if he did not plead guilty, he could be made to serve the 35 years sentence and then serve whatever sentence the court imposed for the robbery. Acting upon this jail house advise, he finally pleaded guilty.” Thereafter the waiver was filed, allocution was granted and the sentences were imposed.

The trial court found there was a “conscious and intentional waiver” and we agree. By his tacit admission there was no coercion operating on the defendant at the time he waived his right to proceed further with his defense against the criminal charge. In Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 849, 9 L.Ed.2d 837, the court stated: “We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” See also State v. Statler, Mo., 383 S.W.2d 534, 538 [8]. The judge who presided at the trial and ruled on the defendant’s motion found in effect that there was an intentional relinquishment or abandonment of a known right or privilege and that the defendant deliberately by-passed the orderly procedure of his state which would have afforded a complete review of all the matters of which he now complains when they were still fresh in the minds of the parties.

We have considered all of the questions presented by the defendant on appeal and find them to be without merit. Accordingly, the judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: HENLEY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. George Carthel HOOPER, Appellant.
    No. 50823.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

Defendant appeals from an order overruling his motion to vacate and set aside the sentence and judgment hereinafter mentioned.

The sentence and judgment he attacks by motion under Rule 27.26 is that entered by the circuit court of the City of St. Louis on October 9, 1961, in its cause numbered 474-J, affirmed by this court January 14, 1963. See: State v. Hooper, Mo., 364 S.W.2d 542. That judgment sentenced him, as an habitual offender, to imprisonment for twelve years on his conviction of the crime of robbery in the first degree by means of a dangerous and deadly weapon.

The order from which he appeals was made upon a review by the trial court of the motion and the files and records of the case without hearing evidence. Express provisions of the rule are that the court is not required to hear evidence on a motion where the motion and the files and records show to its satisfaction that the movant is not entitled to relief; otherwise, the court shall grant a prompt hearing thereon and determine the issues. State v. Kitchin, Mo., 300 S.W.2d 420, 421 [2], certiorari denied 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed. 2d 1429.

We review the matter de novo. Rule 28.05; State v. Kitchin, supra; State v. Richardson, Mo., 347 S.W.2d 165, 168 [1], certiorari denied 372 U.S. 954, 83 S.Ct. 953, 9 L.Ed.2d 978. We may, and do, take judicial notice of the proceedings shown by the transcript of the record in the original case on file in this court. State v. Johnstone, Mo., 350 S.W.2d 774, 776 [1], certiorari denied 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280.

From the ten numbered paragraphs of defendant’s seven-page motion, we extract these as the substance of his grounds for vacating the sentence and judgment:

1. That he was knowingly and falsely charged by the information in the original case (cause number 474-J in the circuit court of the City of St. Louis; cause number 49,153 in this court, Mo., 364 S.W.2d 542) with two prior felony convictions, because at the time of his trial, conviction and sentence in that case he had not been sentenced on his pleas of guilty to the two prior felonies described in the information; that the record shows that he was not sentenced on the two prior felony convictions until after imposition of sentence in case number 474-J; that for these reasons the court was without jurisdiction to apply the Habitual Criminal Act (Section 556.280 ); therefore, rights guaranteed him by § 1 of the Fourteenth Amendment to the Constitution of the United States were violated.
2. That the court erred in permitting a state’s witness to testify that a confessed participant in the robbery stated to the witness that defendant “was the driver of the get-away-car” used in commission of the robbery; that he was thereby deprived of his right “to meet the witnesses against him face to face” guaranteed by Section 18(a), Article I, Constitution of Missouri, V.A.M.S.
3. That he was denied effective assistance of counsel in that counsel appointed by the court to represent him in the robbery case failed to file timely a motion for new trial.

The first two grounds of his motion are substantially the same as two of the grounds stated in his motion for new trial in the robbery case. We disregarded the motion for new trial on that appeal because the motion was not timely filed. State v. Hooper, supra, 364 S.W.2d 1. c. 544 [3]. In effect his motion to vacate seeks to function as a motion for new trial as to these two grounds. We have held that a motion to vacate under Rule 27.26 may not be used as a substitute for a motion for new trial. State v. Hagedorn, Mo., 305 S.W.2d 700, 702 [3].

Also, these two grounds of his motion to vacate are directed toward alleged trial errors. Rule 27.26 does not afford a means for review of trial errors. In State v. Thompson, Mo., 324 S.W.2d 133, 135-136 [4], we said: “The statutory motion to vacate and set aside a judgment and sentence may not be used in lieu of an appeal to review errors committed in the course of the trial, even though such errors relate to constitutional rights, * * State v. Wiggins, Mo., 360 S.W.2d 716, 718 [1-2]; State v. Hagedorn, supra; State v. Schaffer, Mo., 383 S.W.2d 698, 699 [1].

There are two additional reasons why the first ground of defendant’s motion to vacate is without merit. First: the point was laid to rest in State v. Hooper, supra, 364 S.W.2d 1. c. 544, when we said: “The court’s findings as to the previous felony convictions of defendant are sufficient, * * Defendant is precluded from further litigating this question by a motion to vacate under Rule 27.26. State v. Thompson, supra, 324 S.W.2d 1. c. 139 [8]. Second: the record of his sentence in the robbery case and his sentences for the prior felony convictions simply does not support his allegations. Exhibits A and B attached to his motion to vacate show that he was sentenced to five years in the Department of Corrections for each of the prior felonies on June 1, 1960, and subsequently on the same day placed on probation; thereafter, on May 31, 1961, his trial began on the robbery charge, and on October 13, 1961, he was sentenced on his conviction of that charge after his motion for new trial was overruled. The facts in State v. Gordon, Mo., 344 S.W.2d 69, cited by defendant, are distinguishable from the facts in this case. In Gordon the Habitual Criminal Act was not applicable because imposition of sentence for the prior felony had been suspended; here, defendant was sentenced and subsequently placed on probation for the prior felony convictions more than a year before his sentence in the robbery case.

In State v. Worley, Mo., 371 S.W.2d 221, 223 [7], the defendant contended that he was denied effective assistance of counsel for the reason, inter alia, that his counsel had failed to file a motion to suppress evidence. We held that this was not sufficient grounds for setting aside the sentence and judgment, stating: “This court ‘has consistently followed the rule that “negligence or want of skill of counsel affords no ground for the reversal of even a criminal case [citing authorities].” ’ ” The third ground of defendant’s motion to vacate does not allege that his counsel was negligent in failing to file timely a motion for new trial. For all we or the trial court may know from the conclusionary averments of his motion, there may well have been good reason for not filing his motion for new trial within the time allowed by the rules. We have again examined this motion for new trial and note that it would not have availed defendant anything had it been timely filed for, as stated in State v. Hooper, supra, 364 S.W.2d 1. c. 544: “In passing, it may be said, however, that five of its seven assignments were so general and wanting in particularity as to render them wholly ineffectual to preserve anything for review. One of the two remaining assignments is wholly without merit, and the other is not supported by the record.”

For the reasons stated, the court was not required to grant a hearing on defendant’s motion to vacate and set aside the sentence and judgment.

The order overruling the motion is affirmed.

All concur.

      . References to rules are to Rules of the Supreme Court of Missouri and Y.A.M.R.

      . References to statutes are to RSMo 1959 and V.A.M.S.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Josephus KEEBLE, Appellant.
    No. 51315.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., John Denman, Asst. Atty. Gen., Jefferson City, for respondent
    Stanley R. Schuchat, St. Louis, for appellant.
   EAGER, Judge.

This appeal is one from an order overruling a motion to vacate a judgment and sentence entered in June, 1961. No evidence was heard. The movant, whom we shall call the defendant, was charged by information with first degree murder; he was thereafter found guilty by a jury of second degree murder and was sentenced to serve a term of 25 years. No appeal was taken from that conviction, hence we have no trial transcript or record. The State has filed a motion asking the court to supplement the transcript by bringing here under Rule 82.12(c) a supposed waiver of preliminary hearing and certain minutes showing the entries of appearance by counsel. Defendant has countered with a motion to bring up much of the trial evidence. Both motions, having been taken with the case, are now overruled. Except in unusual circumstances, we consider these matters upon the record made upon the motion in the trial court. In all those cases where appeals have been prosecuted we have the full trial record in our transcript, of which we take judicial notice.

The present motion was filed on December 21, 1964. On December 24, 1964, the trial court having “duly considered” the motion, overruled it. Defendant’s original attempt to appeal from that order was late, but this court granted him leave to appeal out of time by its special order under date of February 8, 1965. Thereafter the trial court granted defendant leave to appeal as a poor person.

The essential allegations of defendant’s motion are: (1) that he was denied the right to a preliminary hearing; (2) that the names of certain witnesses used by the State were not endorsed on the information as required by law; (3) that he was held for over 20 hours without bail, without the use of a telephone, and without having the services of counsel; and (4) that he did not have effective assistance of counsel. Upon these allegations he asserts that he was denied due process.

We need not belabor the point that the trial court may deny such a motion without hearing evidence when it is satisfied from “the files and records of the case” that the defendant is entitled to no relief. Rule 27.26; State v. King, Mo., 380 S.W.2d 370; State v. Statler, Mo., 383 S.W.2d 534; State v. Small, Mo., 386 S.W.2d 379. In the present case the trial court filed a memorandum opinion in which it considered various features of the trial and after-trial proceedings, referring not only to the files and records but to its notes. It would have been preferable for the court to include within its order of record such finding as it made from the files and records, but we have determined that we may and should consider the court’s findings from the actual files and records, as included in its opinion. We shall not consider its references to its own notes or to the evidence. In so doing we consider, in part, the fact that we have held that such motions as this (like habeas corpus) are in the nature of civil proceedings rather than criminal, State v. Warren, Mo., 344 S.W.2d 88; State v. Smith, Mo., 324 S.W.2d 707; State v. King, Mo., 380 S.W.2d 370. Under Civil Rule 73.01 it would seem permissible for the court to include its findings in an opinion, even without request. We are moved here primarily by the fact that the court has actually made findings from the files and records and that, whatever the precise form, it would be wholly inappropriate to ignore them. We note also at this point that the trial court is not required to accept as true allegations in such a motion as this if the files and records show them to be untrue. State v. Harris, Mo., 382 S.W.2d 642.

Defendant’s first complaint, as stated, is that he was accorded no preliminary hearing. We shall assume that he had none. We know, however, that the defendant proceeded to trial on a plea of not guilty, represented by counsel. The court has specifically found that he was so represented and the defendant actually concedes it, as he must. Regardless of any affirmative waiver (which the State claims here), the courts of Missouri have frequently held that where a defendant enters a plea of guilty or proceeds to trial upon a plea of not guilty, without making objection to the fact that he has had no preliminary hearing, he waives that requirement. State v. Woodward, Mo., 130 S.W.2d 474; State v. Taylor, 362 Mo. 676, 243 S.W.2d 301; State v. Thomas, 353 Mo. 345, 182 S.W.2d 534; State v. Cooper, Mo., 344 S.W.2d 72, cert. denied 368 U.S. 855, 82 S.Ct. 91, 7 L.Ed.2d 52; State v. Smart, Mo., 328 S.W.2d 569; Skiba v. Kaiser, 352 Mo. 424, 178 S.W.2d 373; Lambus v. Kaiser, 352 Mo. 122, 176 S.W.2d 494. In Lambus, supra, the court said, loe. cit. 497: “A preliminary examination is in no sense a trial, but simply a course of procedure to prevent a possible abuse of power by the prosecution. Ordinarily the absence of a preliminary examination does not ipso facto deprive the circuit court of jurisdiction. It has long been established by our decisions that a preliminary examination may be waived and is now so provided by statute. If the accused pleads and goes to trial without calling the court’s attention to the State’s failure to accord him such examination, he is held to waive it.” The defendant here does not. assert that he or his counsel affirmatively requested a preliminary hearing, nor that they objected to proceeding to trial without one. The entry of a plea of not guilty and the subsequent proceedings constituted a waiver, and the present contention is groundless.

It is next asserted, in a somewhat cursory manner, that the use by the State of witnesses not endorsed on the information deprived defendant of basic rights under §§ 545.070 and 545.240, as well as Rule 24.17. While both the first such section and the rule provide that the names of the witnesses shall be endorsed, both also provide that other witnesses may be subpoenaed and sworn (used) by the State. We have literally scores of cases dealing with that subject. Even assuming the truth of the allegation here, a .defendant must raise the question as a matter of trial procedure by affidavit of surprise, motion to quash the information, motion for a continuance, or some other appropriate method. State v. Sheeler, Mo.App., 300 S.W. 318; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301; State v. Churchill, Mo., 299 S.W.2d 475; State v. Carson, Mo., 286 S.W.2d 750; State v. Glenn, Mo., 262 S.W. 1030; State v. Berkley, 109 Mo. 665, 19 S.W. 192; State v. Ronimous, Mo., 319 S.W.2d 565; State v. Farris, Mo., 243 S.W.2d 983; State v. Derrington, Mo., 137 S.W. 2d 468; State v. Wilson, 321 Mo. 564, 12 S.W.2d 445; State v. Ready, Mo., 251 S.W.2d 680; State v. Thost, Mo., 328 S.W.2d 36. And it has frequently been held that a mere objection to the testimony, made when the witness appears, is insufficient to establish error, Carson, Churchill, Derrington, Wilson, Glenn, supra. And even when the question is affirmatively raised upon proper motion the matter is one for the sound discretion of the trial court. Defendant here alleges no basis for error in the admission of such testimony even if the point were being raised on appeal. And we have held that the point is not available in proceedings under Rule 27.26 to vacate a judgment, but that it is only available “upon a proper appeal.” State v. Richardson, Mo., 347 S.W.2d 165, cert. denied 372 U.S. 954, 83 S.Ct. 953, 9 L.Ed.2d 978. In that case it was noted that no witnesses had been endorsed, that no motion to quash was filed, and that defendant, without objection, had appeared with his counsel and entered a plea of guilty. The point so urged here is not one which may serve as a basis for a collateral attack, and it is denied. These proceedings are not permitted for the purpose of reviewing trial errors, State v. Schaffer, Mo., 383 S.W.2d 698; State v. Worley, Mo., 371 S.W.2d 221; State v. Mallory, Mo., 349 S.W.2d 916; State v. Morton, Mo., 349 S.W.2d 914; State v. Wiggins, Mo., 360 S.W.2d 716; nor does defendant on this point even approach the position of establishing any trial error.

The next contention is that the judgment of conviction was invalidated by the fact that defendant was held without bail, without an attorney, and without the use of a telephone, for over 20 hours, in violation of § 544.170 and Rule 29.05. We have held on several occasions that this, even if true, does not per se invalidate a judgment of conviction. The matter is discussed in State v. King, Mo., 380 S.W.2d 370; State v. Worley, Mo., 383 S.W.2d 529; State v. Bryant, Mo., 375 S.W.2d 122, and State v. Donnell, Mo., 387 S.W.2d 508. In State v. King, supra, the court said, 380 S.W.2d at loc. cit. 377: “No such issue of alleged illegal arrest or illegal detention was raised by appellant prior to the trial of the cause, nor is any such matter mentioned in the motion for a new trial. At no time was it presented to or considered by the trial court. Further, no such fact appears from the transcript on the original appeal of this cause on its merits. If such fact existed it is not now the basis for a collateral attack upon the judgment and conviction entered against him. State v. Bryant, Mo. Sup., 375 S.W.2d 122, 125 [6]; State v. Turner, Mo.Sup., 353 S.W.2d 602, 604 [5]. And see United States v. Shields, 6 Cir., 291 F.2d 798, 799 [2-3].” We see no need to elaborate further and the contention is denied.

The final contention, and the one considered in some detail by the trial court, is that defendant was not afforded effective assistance of counsel. Therein we rely to a considerable extent upon the findings of the trial court, for it had the trial files and records available, and it might take judicial notice of them. State v. King, Mo., 380 S.W.2d 370, 373. In so far as defendant is at all specific, he alleges that his counsel: (1) permitted him to be tried without a preliminary examination; (2) permitted the use of witnesses not endorsed on the information; and (3) did not “try from the outset to defend movant * * * ; ” he also asserts rather vaguely in his argument that his counsel did not prepare for the trial. Defendant is apparently following the actual but unstated theory of many similar motions, namely, that he has not had “effective” counsel unless counsel procured his acquittal.

The waiver of a preliminary hearing and the supposed failure to present affidavits of surprise or appropriate motions upon the production of unendorsed witnesses are matters of trial strategy and judgment. We shall not “second guess” counsel on such matters. State v. Worley, Mo., 371 S.W.2d 221; State v. Howard, Mo., 383 S.W.2d 701; State v. King, Mo., 380 S.W.2d 370; State v. Childers, Mo., 328 S.W.2d 43; see also, Frand v. United States (CA 10), 301 F.2d 102; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. denied 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86. The “hindsight” views of a layman on questions concerning a lawyer’s trial judgment are not a sufficient basis for holding that a trial was fundamentally unfair. The statements that counsel did not prepare the case and that he did not “try to defend” are mere conclusions and thus insufficient to require a factual hearing on the motion. State v. Statler, Mo., 383 S.W.2d 534; State v. Worley, Mo., 383 S.W.2d 529; State v. Rutledge, Mo., 317 S.W.2d 365; State v. Ninemires, Mo., 306 S.W.2d 527.

Furthermore, we look here to the findings of the trial court as made from its examination of the records and files. Defendant was represented by two lawyers of his own choice, privately employed; one, Mr. Bruntrager, was declared by the court to be one of the most experienced and competent “criminal law practitioners” in St. Louis. The court further found: that defendant had been “vigorously and capably” defended; that the trial consumed three full days, in addition to the several hours consumed in the deliberations of the jury; that a motion for new trial setting forth 22 grounds was filed, considered and overruled; that defendant had elected not to take an appeal. We concur fully with those findings of the trial court.

Defendant has cited several cases which deal merely in generalities and are in nowise applicable here. They deal largely with the right of appointed counsel to sufficient time for preparation. No such question is involved here. The State of Missouri and its courts have recognized the right of an accused to counsel since 1835, RSMo 1835, p. 485, § 3, and have rigidly enforced that right. The trial court appointed counsel for the defendant on this appeal, which it was not required to do under our rules in a proceeding of this nature. That counsel, by voluntary election, in writing, and after investigation, informed this court that he had determined not to brief or argue the matter on appeal; he has, however, filed certain motions here.

We concur fully with the trial court, and the order and judgment of that court is affirmed.

All of the Judges concur.

      . All statutory references are to RSMo 1959 and Y.A.M.S.


text:
    Marian Louise WALSH, a minor by her next friend, Robert F. Walsh, Respondent, v. Evelyn V. PHILLIPS, Appellant. Robert F. WALSH and Jeanne A. Walsh, Respondents, v. Evelyn V. PHILLIPS, Appellant.
    Nos. 51350, 51351.
    Supreme Court of Missouri, Division No. 1.
    Jan. 10, 1966.
    Motion to Amend Opinion and for Rehearing or for Transfer to Court En Banc Denied Feb. 4, 1966.
    Opinion Modified on Court’s Own Motion Feb. 14, 1966.

      Wm. J. Hill, Kansas City, for respondents.
    Henry G. Eager, Donald H. Loudon, Kansas City, Swanson, Midgley, Jones, Black-mar & Eager, Kansas City, of counsel, for appellant.
   HENLEY, Judge.

These are actions (1) by a minor for damages of $100,000 for personal injuries, and, (2) by the minor’s parents for damages of $25,000 for the loss of services and companionship of and medical expenses for their child. The cases were consolidated for purposes of trial by order of the court. Verdicts were for the defendant, pursuant to which the court entered judgment in each case. Plaintiffs’ motions for new trial were sustained, the court assigning as reasons therefor (1) that the verdicts were contrary to the preponderance or greater weight of the evidence, and, (2) that the court had admitted evidence prejudicial to plaintiffs. Defendant appeals from the order sustaining plaintiffs’ motions for new trial. The parties stipulated that the cases be consolidated for all purposes of appeal, and it was so ordered.

This court has jurisdiction because the amount in dispute, above stated, exceeds $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.

Plaintiffs pleaded, and submitted their cases on, the res ipsa loquitur doctrine. Defendant contends that the evidence, viewed in the light most favorable to plaintiffs and with the benefit of all permissible inferences, does not make a submissible case under the doctrine; that, therefore, the verdicts and judgments in favor of defendant should be reinstated, notwithstanding that the court granted new trials upon discretionary grounds.

In determining whether the court properly exercised its discretion in awarding new trials on the grounds stated, we examine the record to ascertain whether there was sufficient substantial evidence to justify the submission of plaintiffs’ cases to the jury; or to sustain verdicts for plaintiffs. Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660, 661 [2]; Walker v. Niemeyer, Mo., 386 S.W.2d 87, 92 [3]. In making this determination we view the evidence, including defendant’s evidence wherein it may aid plaintiffs’ case, in the light most favorable to plaintiffs, giving them the benefit of all permissible inferences. Martin v. First National of Independence Co., Mo., 372 S.W.2d 919, 925 [5]; Walker v. Niemeyer, supra, 386 S.W.2d 1. c. 89 [1 2]; Shafer v. Southwestern Bell Telephone Co., Mo., 295 S.W.2d 109 [2].

Plaintiffs, a family of three consisting of the husband, wife and their 5^4-year-old daughter, were tenants of defendant, having rented an apartment from defendant (and defendant’s husband, a party defendant who died prior to trial) at 3323 Campbell Street, Kansas City, Missouri, approximately two months prior to August 8, 1957, the place and date of the injury to Marian, the child. The apartment occupied by plaintiffs was on the first floor of a stone two-story one-family type residence building which had been converted into four apartments with two apartments on the first and two on the second floor. The front entrance to this apartment building was through a doorway opening into a large hallway from which entrance was made to the first floor apartments. In the hallway was a stairway leading to the second floor apartments. This front doorway was provided by defendant for and was used as a common entranceway by all tenants of the building. A part of this doorway was an ordinary wood screened door hung by hinges on what would be the left side of one leaving the premises. The door was so set into the recessed entrance that the outside edge or corner of the stone doorway would prevent the arc of the door, when opened, from being more than approximately 100 degrees. Controlling this screen door was an ordinary metal coil spring, one end of which was attached by a screw eye to the door jamb on the hinge side and the other end similarly attached to a horizontal board of the door at about the same height as the door handle. Outside this doorway was a porch, the floor level of which was about six to nine inches below the bottom of the floor and the hallway floor.

The other first floor apartment was occupied by the resident manager of the building, a Mrs. Mable Kinnunen, and her husband, Elmer. Both parents of Marian were employed: Mr. Walsh was a truck driver whose duties took him out of town; Mrs. Walsh worked in a gift shop about three blocks from the apartment. Mr. and Mrs. Walsh employed Mrs. Kinnunen as a babysitter to care for Marian during the hours of Mrs. Walsh’s employment. Both parents and Mrs. Kinnunen describe Marian, at the age of 5\£, as a normal, healthy, active child; a good child and obedient. Mrs. Kinnunen’s duties as baby-sitter for Marian were to give her her meals, wash and iron her clothes, watch after her and give her her bath, “just what a mother would do with a child.”

Late in the afternoon of August 8, 1957, Mrs. Kinnunen had given Marian her bath and they left the Kinnunen apartment to go through the hallway to the outside. Marian was running along ahead of her, “as a child will.” While still “running along”, when Marian reached the screen door she turned her head and body to her left striking the door with her right side and posterior parts of her body so that her head was turned more or less facing Mrs. Kin-nunen. In so striking the door it was pushed out to about an 100 degree angle, “ * * * back pretty far * * * like a child will do that sometimes”, * * * “real far, too far”, but it did not hit the stone wall. Walking along about twelve feet behind Marian, Mrs. Kinnunen called out cautioning the child against opening and going through the doorway in the manner described above; at the same instant Marian screamed. She had been struck in her right eye by a sharp object. Whether it was a sharp end of the spring itself that struck her eye, or the screw eye that had held an end of the spring to the door jamb, is unknown but it was one or the other. Later that evening defendant found the spring hanging from the door; she testified that the screw had “pulled out” or “came out” of the door jamb and that she had her maintenance man put the screw back in. Jack Lemmons, the maintenance man, testified that he does not recall the incident of Marian being hurt so that he cannot relate in point of time this incident and his going to the apartment house in August, 1957, where he found the screw eye pulled out of the door jamb. He said he put the screw eye back in the same hole; that the condition of the wood, the screw and the spring was good.

The only witnesses to the occurrence were Marian and Mrs. Kinnunen. Marian testified that she remembers Mrs. Kinnunen; that she remembers going to the hospital, but nothing else about the occurrence itself. Mr. and Mrs. Walsh and Mrs. Kinnunen indicated they had never paid particular attention to the doorway as they went, in and out the building, and said they had never noticed anything wrong, unusual or dangerous about the door and its spring.

The sharp object that struck Marian penetrated a portion of her right eyeball and as a result of this injury she lost permanently the sight of that eye.

The doctrine of res ipsa loquitur applies only when (1) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (2) the instrumentality involved was under the management and control of defendant; and, (3) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641; Adam Hat Stores, Inc., v. Kansas City, Mo., 316 S.W.2d 594, 597 [2],

In a res ipsa case the plaintiff has the burden of proving each factual element necessary to a submissible case. A factor bearing on the quantum of proof necessary to make a submissible res ipsa case is the duty owed the plaintiff by defendant. Shafer v. Southwestern Bell Telephone Co., supra, 295 S.W.2d 1. c. 111. “It is the well-settled law that where premises are left to several tenants, as in this case, and where such tenants use certain portions thereof in common, such as halls, stairways, entranceways, and the like, such portions of the premises are held to have been reserved by the landlord for the common use of the tenants and he is in control thereof and is liable for their maintenance, care, and reasonable safety.” Sherman v. Bobrecker, Mo., 322 S.W.2d 898, 902 [2]; Fitzpatrick v. Ford, Mo., 372 S.W.2d 844, 849 [1]; Gateway Chemical Company v. Groves, Mo., 338 S.W.2d 83.

Was this occurrence, that is, the screw eye pulling out of the door jamb, such as does not ordinarily happen if those in charge use due care? We think so. It has been said that “the occurrence or ‘thing’ which speaks of negligence * * * is not the injury nor the act or omission of the defendant, nor is it the instrumentality. It is the unusual occurrence of the instrumentality in the causal chain of events which connects the injury to the act or omission of the defendant.” Shafer v. Southwestern Bell Telephone Co., supra, 295 S.W.2d 1. c. 114. Having provided for her tenants’ use a door and its retaining spring, defendant’s duty, in the exercise of due care, was to so install and maintain the spring and the screw by which it was attached to the doorway (of which it was a part) that its use by her tenants for the purpose for which it was intended would not cause the screw to pull out to the injury of a tenant. Doors and springs as well as screw eyes of the type mentioned in the evidence are in common use. Properly installed and maintained it is an unusual occurrence that a screw eye will pull out of a door jamb, one that does not ordinarily happen. In the ordinary course of events the screw eye would not pull out had the defendant used proper care. This extraordinary and unusual occurrence speaks of and infers negligence on the part of defendant. Cruce v. Gulf, Mobile & Ohio Railroad Co., 358 Mo. 589, 216 S.W.2d 78, 80 [2-5]; Clark v. Linwood Hotel, Inc., 365 Mo. 982, 291 S.W.2d 102, 106 [2]; Littlefield v. Laughlin, Mo., 327 S.W.2d 863, 865 [2]; Gateway Chemical Co. v. Groves, Mo., 338 S.W.2d 83, 85 [2]; Young v. Missouri Public Service Co., Mo., 374 S.W.2d 59, 62 [2].

Was the instrumentality involved under the management and control of defendant? This requirement of the res ipsa doctrine “ * * * that the instrumentality be under the management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time the negligence was committed.” McCloskey v. Koplar, supra, 46 S.W.2d 1. c. 560 [2]; Maxie v. Gulf, Mobile & Ohio Railroad Co., 356 Mo. 633, 202 S.W.2d 904, 911 [5]; Littlefield v. Laughlin, supra, 327 S.W.2d 1. c. 865 [3]; Cruce v. Gulf, Mobile & Ohio Railroad Co., supra, 216 S.W.2d 1. c. 80 [3], Defendant’s answer admits that she owned this apartment house and provided and maintained this doorway and the screen door and coil spring attached to the door and door jamb for the use in common of her tenants and their families. This child certainly had no “right of control” over the door or the spring and its attachments in the true sense of that requirement. She had no control over the physical forces that came into play when she used the door for the purpose for which it was provided; she was helpless. The door, its spring and attachments were under the management and control of defendant at the time of the occurrence.

Defendant contends that it is more reasonable to infer that the spring broke or became detached from the door jamb because of any one of several reasons, including: (1) the unusual manner in which Marian opened the door; (2) Marian’s past abuses of this door; (3) a latent defect or recent malfunction in the spring or door; (4) acts of third persons; or, (5) physical limitations of the spring itself. Defendant contends that for none of these reasons would she be responsible; that for these reasons plaintiffs failed to make a submissible case. She argues that the chain of causation was interrupted by Marian’s unusual or abnormal manner or method of opening the door. In describing the manner in which the child opened the door, Mrs. Kinnunen said “ * * * the normal way would be to go forward out the door * * * ” and “to push the door open that wide, * * * I wouldn’t think that was normal.” We say parenthetically and base no part of our decision on this statement: “normal” is a relative term; she was, of course, referring to the actions of a child, and what are normal actions to her as an adult are not necessarily the normal actions to be expected of a child. Our observation is that this is a normal manner of going through a doorway by most active, healthy children of that age.

No doubt the screw eye would not have pulled out at the moment of Marian’s injury had the door not been opened putting into play the elastic power of the spring on the screw, but the opening of the door was necessary for exit. The question of whether this manner or method of opening the door was the producing cause of the screw coming loose is one of fact on which reasonable minds could differ. In Walker v. Niemeyer, supra, 386 S.W.2d 1. c. 93 [5], we said: “‘Negligence does not become a question of law alone unless the acts upon which its existence depends are of such character that all reasonable men would concur; and where different conclusions can be drawn from the evidence, it is a jury question.’ ” (Emphasis supplied.) We decline to hold as a matter of law that the manner of the child’s act was the producing cause of this occurrence. Adam Hat Stores, Inc., v. Kansas City, Mo., 316 S.W.2d 594, 599 [5]. The facts and circumstances, stated favorably to plaintiffs, warrant an inference that this occurrence would not have happened absent negligence on the part of defendant. Cruce v. Gulf, Mobile & Ohio Railroad Co., supra; Young v. Missouri Public Service Co., Mo., 374 S.W.2d 59, 63 [4]; McCloskey v. Koplar, supra, 46 S.W.2d 1. c. 563 [4-6],

As to “Marian’s past abuses of this door” as a cause or reason for the screw eye pulling out of the door jamb, there is no evidence that this was a cause. Defendant implies that such may have been a cause. . The only evidence to which she could have reference is that Marian had been seen to “hit the door all at once and go out of it”, opening it to its capacity, and had been seen to swing on the door. There is no showing by defendant that such prior use of the door by the child loosened the screw eye or caused it to pull loose on the occasion of her injury. Nor is there any substantial evidence that the specific cause of the occurrence was a latent defect in or a recent malfunction of the spring or door, nor that it was due to acts of third persons or physical limitations of the spring itself. Mr. Kinnunen testified that he “noticed after the accident that the end of the coil spring attached to the door jamb was broken * * Defendant argues that “if the end of this spring broke off, as Mr. Kinnunen thought it did the likely cause would be a latent defect. * * * ” He didn’t say that the end of the spring itself broke off. This is not substantial evidence that a latent defect was the specific cause of the occurrence; his testimony that the end of the spring attached to the door jamb “was broken” is consistent with what his former landlord, the defendant, said: that she found the spring hanging from the door, the other end having pulled out of the door jamb. Defendant’s theory of a latent defect is refuted by the testimony of Jack Lemmons who said he found the spring in good condition when he reinstalled it.

Defendant contends that plaintiffs’ evidence failed to exclude the hypothesis that the screw eye pulled loose because of Marian’s voluntary acts (as distinguished from contributory negligence) or because of a latent defect, physical limitations or recent malfunction of the spring, or from acts of third parties. While there are statements in a few cases which appear to be to the contrary, this court, en banc, in Adam Hat Stores, Inc., v. Kansas City, Mo., 316 S.W.2d 594, 600 [7], held that a plaintiff in a res ipsa loquitur case is not required to exclude every other reasonable theory of nonliability on the part of a defendant. Littlefield v. Laughlin, supra, 327 S.W.2d 1. c. 866 [5]; Bone v. General Motors Corporation, Mo., 322 S.W.2d 916, 921 [1-4], 71 A.L.R.2d 361.

We do not agree with defendant’s argument that the cause of this occurrence is not peculiarly within the knowledge of the defendant within the meaning of the third essential element of the res ipsa doctrine : * * that the defendant possesses superior knowledge or means of information as to the cause of the occurrence.” Pursuing this argument, defendant says that plaintiffs lived in this building, constantly used this entrance, observed it immediately after Marian’s injury, and engaged an attorney the next day; that for these reasons the circumstances surrounding the incident were as easily accessible to plaintiffs as to defendant. As indicated above, neither of the adult plaintiffs had ever paid particular attention to the doorway; and, of course, there would be no occasion for them to notice the several parts thereof prior to the occurrence. Mr. Walsh stated, “it was just a door that I walked through.” And that statement probably expresses the attention paid the doorway by Mrs. Walsh and Marian. Mrs. Walsh said that she noticed the door as she entered the building on being called home from her employment because of her child’s injury. It would be reasonable to infer that she didn’t tarry long at the en-tranceway on that occasion. She said she did notice that the spring had been reinstalled.

The defendant testified that she went to the apartment house two or three times a week; that she went to the building the evening of the day of Marian’s injury; that she “looked at the door and the screw had came out and it was hanging”; that she had her maintenance man fix it. Defendant’s maintenance man testified he was at the apartment building “almost every day, sometimes two or three times a day” and was familiar with the door and spring and had never seen anything wrong with it; that he put the same spring back on the door. We conclude that under these circumstances the defendant had superior knowledge or means of information as to the cause of this occurrence. Adam Hat Stores, Inc., v. Kansas City, supra, 316 S.W.2d 1. c. 599 [6]; Cruce v. Gulf, Mobile & Ohio Railroad, supra, 216 S.W.2d 1. c. 81 [5]. See also: Cruce v. Gulf, Mobile & Ohio Railroad Co., 361 Mo. 1138, 238 S.W.2d 674.

We hold that a submissible case of negligence was made by plaintiffs against defendant under the res ipsa loquitur doctrine.

The order of the trial court granting plaintiffs a new trial in each case is affirmed and the causes are remanded.

All concur.


author: STONE, Presiding Judge.

text:
    C. W. BUZZARD, Plaintiff-Appellant, v. M. E. MORRIS, successor to Milton Carpenter, as State Treasurer and Custodian of Second Injury Fund, Defendant-Respondent, and C. W. Nofsinger Company and Aetna Casualty & Surety Company, Defendants.
    No. 8520.
    Springfield Court of Appeals. Missouri.
    Jan. 18, 1966.

      Douglas & Douglas, Neosho, for plaintiff-appellant.
    Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   STONE, Presiding Judge.

C. W. Buzzard (hereinafter called the employee), a pipefitter by trade, instituted this proceeding under the Missouri Workmen’s Compensation Law [V.A.M.S. Chapter 287] against C. W. Nofsinger Company, his employer, and Aetna Casualty & Surety Company, its insurer, by the filing of his claim for compensation with the Division of Workmen’s Compensation on January 4, 1962. In that claim, the employee alleged that, while en route to his place of employment on August 17, 1961, he sustained severe personal injuries in and as the result of a vehicular accident in Newton County, Missouri, which arose out of and in the course of his employment because “the employer was paying employee travel expenses to and from home.” On January 17, 1962, the employer and its insurer answered the employee’s claim.

On July 31, 1962, the employee filed an amended claim for compensation which differed from his original claim in only one material respect, to wit, in that it named as an additional party to the proceeding “Milton Carpenter, Treasurer of Missouri and custodian of the second injury fund.” See Section 287.220. (All statutory references are to RSMo 1959, V.A.M.S.) On August 22, 1962, the employer and its insurer filed an answer to the employee’s amended claim, in which they asserted that “if they, or either of them, ever were liable to claimant [employee] under the Missouri Workmen’s Compensation Law, all of which they deny, such liability has been fully compromised, settled, discharged and terminated by a lump sum compromise settlement agreement under Section 287.390, RSMo 1959, duly approved August 13, 1962, for a consideration of $4,900.” Honorable Milton Carpenter, the then State Treasurer and custodian of the second injury fund, represented by the then Attorney General, on January 21, 1964, filed an answer to the employee’s amended claim and, on July 9, 1964, filed an amended answer thereto denying the allegations of the amended claim and pleading certain affirmative defenses.

When the employee’s amended claim came on for hearing before a referee of the Division of Workmen’s Compensation on July 17, 1964, it was agreed, inter alia, that the employee’s claim against the employer and insurer had been settled by a compromise agreement approved by a referee of the Division on August 13, 1962, that claim had been filed “against the State Treasurer as custodian of the second injury fund within the time prescribed by law,” and that the only dispute was as to whether the employee was entitled to recover against the second injury fund. The referee’s award on hearing was captioned “Claim against second injury fund only,” named as a party “Milton Carpenter, State Treasurer, as custodian of second injury fund,” showed that “liability of employer and insurer [had been] settled by compromise approved August 13, 1962,” and awarded the employee “for permanent total disability under Section 287220 the sum of $40 per week for 200 weeks, and thereafter the sum of $27.50 per week for life” to be payable “from second injury fund.”

Upon application for review [Section 287.480] by “Milton Carpenter, State Treasurer and custodian of the second injury fund,” the Industrial Commission of Missouri entered on February 1, 1965, a “final award against second injury fund only” which granted to the employee “for permanent partial disability the sum of $40.00 per week for 60 weeks, to be paid by the second injury fund.” Dissatisfied with this award, the employee appealed to the Circuit Court of Jasper County. However, since the accident had occurred in Newton County, the transcript and file were lodged in the Circuit Court of that county [Section 287.490], which in due time affirmed the final award of the Industrial Commission “to be paid out of the second injury fund.” Still complaining, the employee filed a notice of appeal to this court, naming in the caption of that notice only the employer and its insurer as parties defendant.

On behalf of Honorable M. E. Morris, the present State Treasurer and custodian of the second injury fund, the Attorney General has filed a “motion to transfer and to designate proper parties,” in which he points out that the final award of the Industrial Commission was against the second injury fund alone and that the State Treasurer as custodian of that fund is the only party defendant in interest, and in which he requests that we designate M. E. Morris, successor to Milton Carpenter, as State Treasurer of Missouri and custodian of the second injury fund, as defendant-respondent, and transfer this case to the Supreme Court of Missouri.

The above-recited facts appearing in the transcript filed in this court, it is clear that the State Treasurer, in his official capacity as custodian of the second injury fund, is a party defendant in this case [Section 287.220, subsec. 2] and that, since a “state officer as such is a party” [Art. V, Sec. 3, Mo.Const. of 1945], this appeal is within the exclusive appellate jurisdiction of our Supreme Court. Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W. 2d 292, 294; Grant v. Neal, Mo., 381 S.W.2d 838, 840(3); Mossman v. St. Joseph Lead Co., Mo.App., 254 S.W.2d 241, transferred Mo., 265 S.W.2d 335. See also Federal Mutual Ins. Co. v. Carpenter, Mo., 371 S.W.2d 955.

Accordingly, the State Treasurer’s “motion to transfer and to designate proper parties” is sustained, and it is the order of this court that M. E. Morris, successor to Milton Carpenter, as State Treasurer of Missouri and custodian of the second injury fund, should be and is designated as defendant-respondent, and that the clerk of this court should be and is directed to transfer this case forthwith [Sec. 477.080], together with a copy of this opinion and order, to the clerk of the Supreme Court of Missouri.

RUARK and HOGAN, JJ., concur.


author: CLEMENS, Commissioner.

text:
    Elmer SWARINGIN, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, a Corporation, Defendant-Respondent.
    No. 32011.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.

      John J. Relies, Clayton, for appellant.
    Paul S. Brown and Donald L. James, of Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   CLEMENS, Commissioner.

This is an action for a declaratory judgment concerning the words “uninsured automobile.” Plaintiff’s petition was denied on the merits in the trial court, and he appeals.

Plaintiff and his wife were injured in a collision with an automobile negligently driven by one Patricia Adams, who then carried a policy of liability insurance with the Missouri Union Insurance Company. That company later became insolvent, thereby thwarting the plaintiff’s recovery from Patricia Adams. Plaintiff’s own policy with defendant Allstate Insurance Company included coverage for injuries received in a collision with an “uninsured automobile.” Defendant denied liability to plaintiff, and by this action plaintiff seeks a judicial declaration that Patricia Adams was operating an “uninsured automobile” at the time she caused the injuries to plaintiff and his wife.

The evidence further showed: The plaintiff was injured on July 12, 1959, and Patricia Adams’ liability policy with Missouri Union was then in effect. Missouri Union was then having financial difficulties, but was engaging in the normal course of its business, writing policies and paying and defending claims; it continued writing policies until December 1, 1959, and it accepted and paid claims until May, 1960. But on June 27, 1960, almost a year after plaintiff’s collision with Missouri Union’s insured, Missouri Union was declared insolvent on motion of the Superintendent of Insurance.

Upon submission of the case, the trial court’s judgment was squarely against plaintiff: “* * * The Court declares that on July 12, 1959 Patricia Adams was not the operator of an uninsured automobile within the meaning of Plaintiff’s policy of insurance with Allstate Insurance Company.”

By defendant Allstate’s policy, it agreed to pay plaintiff up to $5,000 for bodily injuries caused by the operator of an “uninsured automobile.” In the policy, that phrase was defined as an automobile on “which there is no bodily injury liability insurance applicable at the time of accident.”

By his first point, plaintiff would lead us along the path to his conclusion that the policy definition of “uninsured automobile” includes an automobile that is not covered by liability insurance which “can be put to practical use” by the injured plaintiff. Plaintiff claims that the policy definition is ambiguous and he invokes the rule that ambiguities are to be construed favorably to the insured, so as “to fill a gap in the protection of automobile liability insurance policy holders.” (Plaintiff takes those words from the case of Basore v. Allstate Insurance Company, Mo. App., 374 S.W.2d 626; but in his brief, counsel misquotes and transposes the words of that opinion, a practice upon which we must look with distaste.) We adopt plaintiff’s conclusion that ambiguities are to be construed favorably to the insured, but do not accept his premise that the policy definition is ambiguous. In 7 Am.Jur. 2d Automobile Insurance § 2, it is said:

« * * * thg ru]e 0f liberal construction in favor of the insured applies only when the contract is ambiguous and susceptible of more than one interpretation; where the language is plain and unambiguous there is no occasion for construction, and the language must be given its plain meaning. * * *"

If we can determine the intention of the parties by interpretation of the language used in the policy definition, we must do so. Only if that language is so ambiguous that we cannot do so, may we resort to construction, i. e., a determination of the parties’ intention from extraneous circumstances. (See Black’s Law Dictionary, 4th Ed., p. 386, for the distinction between “interpretation” and “construction.”) Ambiguity arises when there is duplicity, indistinctness or uncertainty of meaning. Tenney v. American Life & Acc. Ins. Co., Mo.App., 338 S.W.2d 370(1), and cases therein cited.

As said, the policy defines an uninsured automobile as one on “which there is no bodily injury liability insurance applicable at the time of accident.” To persuade us that the definition is ambiguous, plaintiff cites numerous definitions and synonyms of the word “applicable” and argues that its meaning is so broad that it needs to be modified by another word. He suggests “collectible” or “effective.” We consider that a strained and unnatural interpretation. Even without the challenged word “applicable,” the definition could not be interpreted to include automobiles which later “become uninsured.” Further plaintiff’s interpretation would utterly disregard and be at war with the ensuing words “at the time of accident.” Looking again to the policy definition, we find the language is plain and straightforward and susceptible of only one meaning. Therefore, we may not construe it; instead, we must interpret and apply it as the trial court did.

If support be necessary for this conclusion, we find it in each of two cases concerning a situation where the tort-feasor’s liability insurer became insolvent after the injury. See Federal Insurance Co. v. Speight, U.S.Dist.Ct., E.D. South Carolina (1963), 220 F.Supp. 90 [4-8]; and Hardin v. American Mutual Fire Ins. Co. (1963), 261 N.C. 67, 134 S.E.2d 142 [3-5]. In each case, the injured plaintiff’s own policy had coverage for injury by an “uninsured automobile”; and in each case, that phrase was defined in the policy as an automobile for which there was no liability insurance applicable to the accident in which plaintiff was injured. Neither definition carried the further qualifying phrase “at the time of accident” present in our ease. Even in the absence of those additional words, each court ruled that the definition was plain and unambiguous, that there was no occasion for construction, and that the definition must be interpreted to exclude the tort-feasor’s automobile.

By his second point, plaintiff urges us to find that the Missouri Union policy was a nullity because that insurer was insolvent at the time of plaintiff’s injury. The burden was on plaintiff to show that Patricia Adams’ automobile was uninsured at the time of the accident. 7 Am.Jur.2d, Automobile Insurance § 137. He did not carry this burden merely by showing that Missouri Union was in some financial difficulty before it was declared insolvent almost a year after the accident.

The scope of our review in this case, tried without a jury, is limited by Civil Rule 73.01(d), V.A.M.R.; and a reversal would be justified only if we find the judgment of the trial court was clearly erroneous. To the contrary, we find it properly declared that plaintiff’s injuries did not arise from a collision with an uninsured automobile within the meaning of plaintiff’s policy with the defendant. The judgment for defendant should be affirmed.

PER CURIAM.

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

Accordingly, judgment is affirmed.

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


author: BRADY, Commissioner.

text:
    Samuel RICH and Florence Rich, Plaintiffs-Appellants, v. Julius RICH and Mildred Rich, Defendants-Respondents.
    No. 32147.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.

      Shepherd & Weenick, Lawrence N. Wee-nick, Clayton, for plaintiffs-appellants.
    Boggiano & Hessel, Meyer Hessel, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

This appeal arises from a judgment of the circuit court of St. Louis County rendered in an action tried before the court without a jury wherein the plaintiffs-appellants sought to recover from the defendants-respondents OHe-half the interest paid by the plaintiffs-appellants on a certain note. The trial court found in favor of the defendants-respondents. The real parties in interest here are Samuel Rich and Julius Rich. We will hereafter refer to the parties by their designation in the trial court except that due to the fact their wives took no part in these proceedings except to sign certain documents as requested by their husbands, we will refer to them in the singular.

The petition alleged that on December 30, 1955, the defendants signed a note for $30,000.00 as joint obligors with plaintiffs; that until May of 1960, these parties paid interest on that note jointly; that after that date the defendants refused to pay interest “ * * * on said promisory (sic) note”; and that plaintiffs paid the defendants’ “* * * share of the interest of said note * * * ” which amounted to $2,000.00. This was the sum for which judgment was prayed plus interest.

The plaintiff and the defendant are not related. They are the principal stockholders in a closely held corporation known as Press Forgings, Inc. In December of 1955 that corporation was indebted to the State Bank of Wellston on a promissory note in the amount of $30,000.00. This loan was secured by collateral put up by both the plaintiff and the defendant. The corporation was then attempting to secure some subcontract work from Lockheed Aircraft Corporation but Lockheed conditioned any agreement with Press Forgings upon an improvement in the latter’s financial statement. To effectuate this the parties entered into an arrangement whereby they agreed to remove this note from the financial statement of the corporation. The plan was to pay off the $30,000.00 note of Press Forgings, Inc. by funds raised by a loan on a personal note signed by both of the parties and their wives for the same amount. The defendant’s evidence was that it was also agreed that after the contract with Lockheed was completed, Press Forgings, Inc. would reassume the $30,000.-00 note and he and Dr. Samuel Rich would be released from primary liability. Plaintiffs denied any such agreement. The plaintiff testified that he had been convicted of income tax evasion.

On December 30, 1955, this plan was put into operation and the parties borrowed $30,000.00 which they used to pay off the note of Press Forgings, Inc. As collateral for this loan the plaintiff and the defendant each put up $17,000.00 worth of preferred stock in the corporation. In addition the plaintiff pledged a deed of trust in the amount of $60,000.00. The note of the corporation was returned to it by the bank making the loan. The bank records showed the corporate obligation was marked paid. At the same time Press Forgings, Inc. issued preferred stock in the amount of $30,-000.00 to plaintiff. The evidence was that one-half of the $30,000.00 of preferred stock issued on this decision belonged to defendant and that the parties had a written agreement covering this. This agreement was marked as plaintiff’s Exhibit 3 and introduced into evidence. That agreement provided the dividends on this $30,-000.00 of preferred stock were to be equally divided between Julius Rich and Samuel Rich and that “ * * * in regards to PRESS FORGINGS, INC., Stock Certificate No. 7, in the amount of 300 shares of Prefferred (sic) Stock issued to DR. SAMUEL M. RICH, is as follows:

“(1) which and when this stock is called for payment by Press Forgings, Inc., the proceeds of the above payment amounting to $30,000.00 will be used to pay off the joint loan of JULIUS RICH and SAMUEL M. RICH at the STATE BANK OF WELLSTON and all collateral belonging to JULIUS RICH and DR. SAMUEL M. RICH, being held by the STATE BANK OF WELLSTON for this loan, will be returned to each party.” This note for $30,-000.00 signed by the plaintiff and the defendant was renewed from time to time until December 16, 1960.

The defendant's testimony was that after the corporation had secured the contract with Lockheed, he requested the plaintiff carry out their agreement to relieve the parties of their personal obligation to the bank. Plaintiff refused to comply and sometime in May of 1960, upon plaintiff’s continued refusal, defendant refused to pay any further interest on this note or to sign a renewal note to replace it. Testimony going to the issue of the payment of interest on this note was by the plaintiff who testified that he and the defendant each paid fifty per cent of the interest due on this note and that the interest was paid. The exact question he was asked was: “And was the interest paid on that note?” His answer was: “Yes, sir.” There was no other evidence as to the payment of interest on this note. Plaintiff then testified that, upon defendant’s continued refusal to sign a renewal note, he and his wife did sign a note to replace the jointly signed note of December 30, 1955.

This new note, signed by the plaintiffs only, was executed on December 16, 1960; the payee and the amount were the same as on the note of December 30, 1955. The plaintiff referred to this note as a “renewal” note. It was accepted by the bank in place of the note signed by all four parties and has been renewed by the plaintiff from time to time. The evidence was that he and his wife have signed new notes in the same amount on at least fourteen different occasions for renewal purposes. The bank records show the note of December 30, 1955, as paid. With reference to the payment of interest on this note the plaintiff was asked the following question and gave the answer shown: “Q During the period of May 1960 until May 1962, can you tell me, Dr. Rich, what the total interest was on that note? A $3,954.22. Q That was the total interest? A Yes. Q Did you pay that interest? A Yes.” He later testified that he was seeking half of that amount or $1,977.11,

In appeals of this nature we are to review the record de novo both upon the law and the evidence as in suits of an equitable nature and the judgment is not to be set aside unless it is clearly erroneous. We are to give due regard to the trial court to judge the credibility of the witnesses. Supreme Court Rule 73.01(d), V.A.M.R.; § 510.310, subd. 4, RSMo 1959, V.A.M.S.

The plaintiffs devote a large portion of their brief to the contention that the original loan of the corporation ceased to be a corporate obligation on December 30, 1955, when it became a personal obligation on the part of the plaintiffs and the defendants. Doubtless their preoccupation with that question springs from some of the language used by the trial court in arriving at its judgment. However that may be, that is not the controlling issue tried nor that presented to this court and, as will appear from the balance of this opinion, a decision on that issue is not required by this appeal.

It should first be noted that there is a clear failure of proof of the allegations of the petition. The plaintiff himself testified the interest on the only note referred to in the petition was paid and was paid equally by these parties. The petition is totally silent as to interest due on any other note forming the basis of all or part of the amount allegedly due plaintiff. However, it is obvious that regardless of what his pleading contained, plaintiff’s theory was that the note of December 16, 1960, although signed only by the plaintiff and his wife, was in fact a “renewal” note and replaces the note of December 30, 1955, signed by all the parties. His theory on appeal, although he does not so state in his brief, must be that his pleading was amended by the facts and that the trial court was in error in not awarding him a judgment on this new and not pleaded cause of action. We cannot agree.

The defendant never signed the note of December 16, 1960, nor is there any evidence the plaintiff signed that note with authorization from the defendant. In fact, the record is silent as to any knowledge on the part of the defendant that the plaintiff intended to so act. The defendant never indicated in any manner he would be liable on the note of December 16, 1960, for either interest or principal. The plaintiff refers to this note as a “renewal” note but it is obvious from the evidence that this self-serving conclusion has no basis in fact. The plaintiff’s act was in fact voluntary and one which substituted an entirely new obligation for that which had previously existed. The substitution of a new obligation cannot be doubted as the payee, the bank, marked its records that the original joint obligation was paid. How then could the defendant be obligated for the payment of any interest due upon the note of another? The plaintiff seeks to answer that question by stating that “ * * * [wjhen defendants refused to pay their share of the interest or to renew the note Plaintiffs had to pay the interest and renew the note unilaterally or suffer the loss of their collateral. It may also be added that the payment of the entire interest and the renewal of the note by plaintiffs also protected Defendants’ collateral.” However, it is clear the plaintiff’s main purpose was to protect his own collateral in a manner he thought best. The fact that when he did so he also incidentally and without any authorization protected the defendant’s collateral does not create any right on his part to recover in this action. It may well have been that the defendant did not want his collateral protected in this manner, or indeed, in any manner. To the contrary, since he was attempting to get the plaintiff to perform under their oral agreement to remove their personal liability, defendant may have wanted the bank to proceed against the collateral as a means of forcing the plaintiff to comply with that agreement. In any event, it is clear that the plaintiff had a choice in December of 1960. He could have allowed the bank to proceed to collect the joint obligation by use of the collateral or in whatever method it wished. The defendant never indicated he did not wish this done nor did he ever request the plaintiff to act so as to prevent it being done. The defendant may well have had other funds or have made arrangements for them with which he intended to pay his share of this indebtedness had the bank proceeded to collect the note. There is no way for us to know nor was that information available to the plaintiff. What is apparent is that the plaintiff did not want the bank to proceed in such a manner and so, without any notice to or authorization from or consultation with the defendant, exercised another choice and substituted his own note for that of both parties. Upon doing so the payee marked its records that the jointly signed note of December 30, 1955, was paid. Under these circumstances plaintiff cannot now require the defendant to pay half of the interest on plaintiff’s note.

It should be noted also that even if this court could, by stretching liberality in construing plaintiff’s evidence and theory on appeal to the absolute limit, consider that by his proof plaintiff had converted his pleaded cause of action into one where he was seeking payment for one-half the interest paid on the note of December 30, 1955, and on that note alone, the trial court still was not in error in entering its judgment for the defendant. This for the reason that this record is remarkably silent as to the interest paid on that note from the date the plaintiff and defendant last made a joint interest payment until December 16, 1960, when the substitution of the plaintiff’s note took place and the jointly signed note was marked paid on the payee’s records. There is no direct evidence on that issue. Neither is there sufficient evidence from which the interest can be calculated. By reference to the note itself, plaintiff’s Exhibit 4, the rate of interest charged can be discovered. In addition, we know from the evidence as to the bank records when it was paid off, December 16, 1960. The missing and necessary information is exactly when the last interest was paid jointly by these parties. All we know is that sometime in May of 1960 defendant refused to pay the interest. We cannot calculate the interest due as the number of days it was due is unknown. There are no notations on the exhibit showing payments of interest or amounts of interest due after February 29, 1956. Moreover, the plaintiff himself clearly testified that the interest on this note was paid jointly and equally by these parties.

The theme running throughout plaintiff’s brief is that the trial court should not have believed the defendant’s evidence as to the oral agreement to render the parties liable after the Lockheed contract was secured. The plaintiff relies heavily upon Exhibit 3, the agreement between the parties as to the preferred stock, and argues that the existence of this agreement disproves defendant’s evidence on this matter. Again we cannot agree. All Exhibit 3 provides with respect to this issue is that when the preferred stock is called, the proceeds therefrom are to be used to pay off the loan which the parties made in order to secure the Lockheed contract. The defendant does not deny that but the effect of his testimony was that there was also an agreement between these parties that plaintiff would join the defendant in making some kind of arrangements whereby they would be released from their personal liability after the Lockheed contract was secured. Whether this was to be accomplished by the calling of this preferred stock or by some other means is another matter. Earlier in this opinion we have set out the rules of review in cases of this nature and therein we are admonished to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. We do not think that the provisions of Exhibit 3 are such as to require the trial court to disregard the defendant’s evidence on this issue. Certainly, the evidence of plaintiff’s conviction was a matter the trial court could properly take into account when deciding whose evidence to believe.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

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


author: JAMES D. CLEMENS, Special Judge.

text:
    Cornelia WILLIAMS, Plaintiff-Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Defendant-Respondent.
    No. 31965.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.
    John P. Montrey, of Guilfoil, Caruthers, Symington, Montrey & Petzall, St. Louis, for appellant.
    Robert C. Ely, of Schwartz & Ely, St. Louis, for respondent.
   JAMES D. CLEMENS, Special Judge.

The plaintiff sprained her ankle while walking to a train on the defendant’s station platform. She sued and got a $1,500 verdict. In defendant’s after-trial motion, it renewed its motion for a directed verdict. This was granted and judgment was entered for the defendant. The plaintiff appeals. So, we must decide whether plaintiff did make a submissible case on her theory that defendant had negligently failed to keep its platform in a reasonably safe condition.

The defendant’s station platform was concrete but had been patched at places with an asphaltic material. Plaintiff weighed well over 200 pounds and was wearing shoes with high “spike” heels. Describing the occurrence, she testified:

“Q And did you notice what you were walking on at the time, the composition of the substance you were walking on ?
“A Well, all I can tell you, it was black to me, you know—
“Q It was black?
“A Yes, sir.
“Q And now, at the time this accident occurred would you tell us exactly what happened as far as what happened physically to you ?
“A Well, we were walking along and I said to the conductor, ‘How much farther do I have to walk?’ I said, ‘I guess we will walk almost to Shreveport,’ and he laughed, and about that time I went down. I made a step and I went down, and my shoe heel got caught and I creeled over, and he happened to catch me before I hit the ground.
“Q You didn’t go all the way to the ground ?
“A Yes, sir, I didn’t.
“Q Did your shoe come off?
“A No, it didn’t.
“Q Did your ankle twist at this time ?
“A Yes, sir.
“Q And were you able to remove the shoe from whatever it was stuck in by yourself ?
“A No, sir. The conductor removed the shoe after I pulled it off my foot.
“Q You took your foot out of the shoe and the conductor removed it?
“A Yes, sir.
* * * * * *
“Q Did you notice anything on the heel of the shoe after it was pulled out of whatever it was stuck in?
“A Yes, sir, it was something black on it, and we called it asphalt. I don’t know what it was, but it was black and sticky.
“Q This was on the heel of the shoe? “A Yes, sir.
“Q Did your heel go all the way down into whatever it was ?
“A Yes, sir.
‡ sj« Hi % ij;
“Q Now, you said that you were walking down the platform and your heel caught?
“A That is right.
“Q I take it you don’t know what your heel caught in, is that right?
“A No, sir, I don’t know what it was fastened to.
“Q All you know, yourself, is that it got caught?
“A That is right.”

Plaintiff also testified that the next time she wore the shoe, the heel broke in two. Plaintiff offered no other evidence on the issue of liability.

Defendant’s evidence did not aid plaintiff. The substance of it was: When the concrete platform needed repairs, damaged areas were chipped away and filled with a black, bituminous material known as “type .T asphaltic cement,” similar to that used on sidewalks and streets. Considering plaintiff’s weight and the size of her heel, she would have exerted a downward pressure equal to 1,400 pounds per square inch.

From this evidence the jury may well have found: that the defendant’s platform at the point where plaintiff stepped was so unstable that it would not bear her weight without her heel sinking in; that she was injured as a result of that condition; that the defect was not apparent to plaintiff and she was free of negligence; and that the defendant knew the concrete platform had been patched with the as-phaltic material. But, there was no evidence whatever that the defendant had actual knowledge that the asphaltic material would not bear plaintiff’s weight. (Contrast the case of Carsel v. Mitchell, Mo. App., 261 S.W.2d 249, 1. c. 250, where plaintiff fell through a weakened floor, and showed that the defendant owner had been told by a building contractor that the floor was dangerous and in need of repairs.) Nor was there any evidence of facts from which it can be inferred that the defendant had constructive knowledge of such a condition. (Contrast the case of Haverkost v. Sears, Roebuck & Co., Mo.App., 193 S.W.2d 357 [3], where the plaintiff tripped over a projecting sill, and showed that the projection was the result of gradual wear from constant use for sixteen months.)

Our courts have developed a comprehensive body of law as to the liability of an owner for injuries to an invitee. We review the principles applicable here.

The defendant was not an insurer. It was not required to furnish plaintiff an absolutely safe platform, but only to use ordinary care to keep it in a reasonably safe condition. Ostresh v. Illinois Terminal Railroad Co., Mo., 313 S.W.2d 19 [1, 3]. As between owner and invitee, the general rule is quoted in Hoffman v. Kroger Co., Mo.App., 340 S.W.2d 152 [2]:

“ * * * ‘The owner of lands is liable in damages to those coming thereon, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the premises, which is known to him and not to them, and which he has suffered negligently to exist, and of which they have received no notice.’ ” (Our emphasis.)

This court there added: “* * * The theory of liability in cases such as these requires that the dangerous condition must be known to the defendant and unknown to the invitee. * * * ”

This element of the owner’s knowledge of the dangerous condition is emphasized in the oft-quoted case of Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278 [1]: “ * * * ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property.’ * * ” Cases announcing and applying these principles are collected in 22 Mo.Dig., Negligence, Key No. 32(1).

These principles were applied by this court in a case similar to the one now before us, England v. Salamon, Mo.App., 324 S.W.2d 765. There, the plaintiff was crossing a walkway on crutches. Nearby was a drainage hole topped with a slab of plywood and covered with dirt. The tip of one of plaintiff’s crutches sunk through this surface and he was injured. There was no evidence that defendant knew of the hole or had reason to be aware of any danger; and in reversing the judgment for plaintiff, we referred to the general rules of liability quoted above and added, at 1. c. 768:

“ * * * Nor should he be held liable for defects which an investigation might reveal unless the situation suggests an investigation. The facts in evidence should indicate to a reasonably prudent man the likelihood of the existence of some hidden danger to persons lawfully upon the premises. One from whom ordinary care is demanded is bound to guard only against those occurrences which can reasonably be anticipated by an ordinarily prudent man. 38 Am.Jur., Negligence, Sec. 24. * * * >>

Plaintiff plausibly argues that the patched place was in fact so unstable that her heel sunk into it, and that “she was indeed the victim of a hidden danger, if not a trap.” She reasons that the defendant having repaired the cement platform with an asphaltic material, had a superior knowledge of that material. True, but all this is not enough to fix liability upon the defendant. Plaintiff had to show that defendant had superior knowledge of a dangerous condition. There was no evidence that defendant had any actual knowledge that the asphaltic material would not adequately support a pedestrian. Nor were there any facts in evidence that defendant had constructive knowledge thereof. Therefore, the evidence did not establish defendant’s liability, and the trial court properly sustained defendant’s motion for a directed verdict.

The judgment in favor of the defendant is affirmed.

ANDERSON, Acting P. J., and RUDDY, J., concurs.