author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Herbert PHELPS, Appellant.
    No. 50372.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1964.

      Thomas F. Eagleton, Atty. Gen., Thomas E. Eichhorst, Asst. Atty. Gen., Jefferson City, for respondent.
    Gene A. DeLeve, Kansas City, for appellant.
   HENLEY, Judge.

By an amended information alleging that defendant had previously been convicted of burglary in the second degree and stealing and thereafter sentenced therefor to two years in the penitentiary on each conviction to run concurrently and paroled (Section SS6.280), the defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon. Section 560.120. Prior to trial day, evidence was heard on defendant’s motion to suppress the use in evidence of articles described in the information, and other articles, and to suppress the testimony of certain police officers and any information gained by them in a search of his person and the seizure of said articles, which motion was overruled. His trial by a jury resulted in a verdict of guilty as charged. The trial court heard evidence of the prior convictions in July, 1961, in the Circuit Court of Jackson County, Missouri, but did not make a finding of record that defendant had prior thereto been convicted, sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor. The court assessed his punishment and sentenced him to serve fifteen years in the Department of Corrections. Defendant was represented at the trial by able counsel appointed, by the court. His trial counsel indicated an interest in prosecuting defendant's appeal and, with defendant’s approval, was reappointed by the trial court for that purpose. On defendant’s motion, he was-permitted to appeal in forma pauperis and a transcript was furnished at the expense of the State. Defendant’s motion for new trial was overruled and he appeals.

The first assignment of error is that the court erred in overruling his motion to-suppress the use in evidence of a .32 caliber revolver and three .32 caliber shells seized from his person for the reason that the. search of his person and the seizure of the articles constituted an unlawful search and seizure and violated his rights preserved by § 15, Article I of the Constitution of Missouri, V.A.M.S., and that the use of said articles as evidence would compel defendant to testify against himself in violation of Section 19, Article I of the Constitution of Missouri. Included within this assignment is the further contention that the court erred in overruling his motion to also suppress the testimony of police officers relating to the search, the articles seized, and the place and circumstances under which the search and seizure was made far the same reasons stated above.

The evidence heard by the court on defendant’s motion to suppress was substantially as follows and would warrant the court finding: In the process of investigating an armed robbery that occurred at about the noon hour on January 21, 1963 on the west side of Troost Avenue in the area of 31st and Troost in Kansas City, Missouri, and in an effort to apprehend those guilty of that offense, Captain Mark Ruckel and Detectives Fred Hauser, Sidney Harlow, and Carl Halteman of the Kansas City Police Department went to Apartment 203 at 3125 Tracy occupied by Frank Gibson and his wife and children as tenants at about 5 o’clock p. m. that day. Earlier that day and before the noon hour Della McCol-lum, manager and janitor of this apartment ■building,-had reported'to the police department that on the evening before she had seen Frank Gibson, and another man about Gibson’s height whom she did not recognize, in a new Ford Galaxie parked in her back ■yard; that she knew Gibson did not own a car; that she took down the license number of the car and then she observed Gibson change the numeral “4” on the license plate to look like a “1”, and furnished the police with the license number. This witness also testified that she knew the defendant and in reply to a question by defendant’s counsel as to whether defendant was the man with Gibson in the Ford the evening before she said, “I would say it was not him [defendant].” She further testified that defendant was not a tenant of the apartment building, that “he just visited there.” After the noon hour the police department received a report of the armed robbery of J. Winston Thompson in the area of 31st and Troost at or during the noon hour by two young white men, one of whom had held up Mr. Thompson on the sidewalk while the other remained in an automobile close by. The hold-up men had escaped from the scene in a late model Ford meeting the description and having the license number furnished that morning by Della McCollum.

With this information and knowledge and a general description of the hold-up men the four officers went to 3125 Tracy to interrogate and probably arrest Frank Gibson and another man for the robbery of Mr. Thompson. On arrival Captain Ruckel and Detective Harlow went in the building, and Detectives Hauser and Halteman remained .outside for a few minutes. Before going upstairs to the Gibson apartment, the Captain and Harlow first talked with Della McCol-lum who described to them the floor plan of the Gibson apartment on the second floor and the location of a clothes closet of that apartment across the hall from the Gibson bathroom.

The Captain and Harlow then went to the Gibson apartment where, after identifying themselves, they were admitted to the apartment and arrested Gibson. In addition to Gibson, his wife and another lady, there was present in the apartment another man whom the officers recognized as a professional bondsman from Kansas City, Kansas, who was not arrested. With Gibson’s permission these two officers searched the apartment, but did not go to its closet in the hall. About ten minutes after the Captain and Harlow entered the building, Detectives Hauser and Halteman entered the back door and met Mrs. McCollum who described to them the floor plan of the Gibson apartment and the location of its hall closet. On reaching the second floor hall the detectives noticed that the closet door “was closed but not securely shut.” Detective Hauser, with his pistol drawn, opened the closet door and there, lying on his back on the closet floor, was Herbert Phelps looking into the barrel of Hauser’s pistol. He was directed to “get up easy” and told that he was under arrest for investigation of the armed robbery of Mr. Thompson earlier that day. Detective Halteman then searched defendant and took from his left breast pocket a .32 high-shot owlhead fully-loaded pistol. After handcuffing him, his person was further searched and three or four hypodermic needles, and other articles commonly used by drug addicts, were found and seized.

The description of one of the two holdup men matched somewhat the descriptions of both the men seen the evening before by Mrs. McCollum in and around the Ford automobile bearing the same license number of the automobile seen to leave the hold-up scene. The officers knew one of the men around this automobile the evening before was Frank Gibson and the description met that of Gibson; they went to the Gibson apartment to arrest Gibson and, if they could find him there and identify him, to arrest the second man known to have participated in the Thompson robbery, whoever he might be; and, in the opinion of the officers, defendant also met the description of one of the hold-up men.

Considering the above related facts and circumstances in their totality the court could find, as it did, that the arrest of the defendant without a warrant was lawful, and that the subsequent search of his person and seizure of the articles described in the information were incidental to that arrest.

Officers may arrest, without a warrant, one whom they have reasonable cause to believe is guilty of a recent felony. State v. Campbell, Mo., 262 S.W.2d 5; 6 C.J.S. Arrest § 6, page 587. This court has said, “What constitutes ‘a reasonable and probable ground of suspicion is incapable of exact definition, beyond saying that the officer must not act arbitrarily, but must exercise his discretion in a legal manner, using all reasonable means to prevent mistakes. In other words, he must be actuated by such motives as would influence a reasonable man acting in good faith; * * *.’ Russo v. Miller, 221 Mo.App. 292, 3 S.W.2d 266, 269 [6].” State v. Cantrell, Mo., 310 S.W.2d 866, 869 [6]. There was reasonable cause for the officers to believe defendant was one of the hold-up men and the court did not err in overruling the motion to suppress for the assigned reason that the arrest was unlawful.

When a person has been -lawfully arrested officers may take from him articles of evidentiary value without violating his constitutional guaranties against unreasonable searches and seizures. State v. Raines, 339 Mo. 884, 98 S.W.2d 580; 79 C.J.S. Searches and Seizures § 26, page 795; State v. Cantrell, supra. The .32 caliber revolver and the three .32 caliber shells were lawfully seized as a result of a lawful search incidental to a lawful arrest. The use of these articles in evidence would not, as defendant contends, compel him to testify against himself in violation of his constitutional rights. 22A C.J.S. Criminal Law § 650, pages 544-545; State v. Charles, Mo., 268 S.W.2d 830, 834-835.

The arrest, search and seizure were-lawful; therefore, the testimony of the police officers relating to the search, the-articles seized, and the place and circumstances under which the search and seizure was made was competent evidence. State v. Cochran, Mo., 366 S.W.2d 360, 362 [3, 4]; State v. Davenport, Mo., 360 S.W. 2d 710, 711; State v. Hands, Mo., 260 S.W. 2d 14, 20 [10]; State v. Raines, 339 Mo. 884, 98 S.W.2d 580, 584-585 [7]; State v. Charles, supra; 22A C.J.S. Criminal Law § 657(7), page 598. Defendant’s further contention that the court erred in overruling his motion to suppress that testimony is denied.

At the trial on the merits the defendant’s objections to the admission in evidence of the revolver and the three .32 caliber shells, as well as the testimony of the police officers relating to the search, the articles seized and the place and circumstances under which the search and seizure was carried out for the same reasons assigned in his motion to suppress were overruled by the court, and in points two and three of his brief he contends this was error. What we have said above, without more, adequately disposes of these two assignments and points adversely to defendant.

The defendant assigns as error the failure of the Magistrate Judge to appoint counsel to represent him at his preliminary hearing in Magistrate Court. At that hearing he pleaded not guilty. His contention is that by denying him the assistance of counsel at that hearing he was denied a preliminary examination and his right to appear and defend by counsel, and was thereby deprived of- due process of law and equal protection of the laws contrary to the Fourteenth Amendment of the Constitution of the United States and Sections 10, 14 and 18(a) of Article I of the Constitution of Missouri. As urged by defendant we have reexamined State v. Turner, Mo., 353 S.W.2d 602 and State v. Gagallarritti, Mo., 377 S.W.2d 298 in the light of Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct 157, 7 L.Ed.2d 114; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and we find no reason, including those advanced by defendant, not to adhere to our holdings in Turner and Gagallarritti, supra. Defendant’s rights preserved by the Constitution of the United States and the Constitution and laws of Missouri were not violated by the failure to appoint counsel to represent him at his preliminary examination, and we again so hold.

The defendant next assigns as error the admission in evidence, over his objection, of the testimony of one of the police officers that the defendant remained silent and refused to answer questions while under' arrest. He contends this evidence was not competent and that it compelled him to testify against himself in violation of Article I, Section 19, Constitution of Missouri. Counsel for the state contends and argues that this testimony of Detective Halteman was innocuous and showed merely the physical condition of defendant at the time he was questioned by the officer.

The testimony objected to related an occasion and occurrences when the defendant was under arrest. and in custody at police headquarters. Whether the failure of defendant to reply to questions of the officer while in his described condition at the time was, or might have been, considered by the jury as evidence of his guilt, as contended by defendant, or, whether the testimony was offered solely to show, and could be considered only as mere-evidence of his physical condition and that he was not in condition to be questioned, as contended by the State’s attorney, has given us some concern and is of more than ordinary significance and importance.

The record shows that the following took place during examination by the State’s attorney:

“ * * * Did you have occasion to talk with this defendant, Phelps, about this robbery that occurred up there on Troost?
“A Yes, sir.
“Q And what — incidentally, you said you got there about 5 o’clock and you made this arrest right around 5 o’clock ?
“A It wasn’t dark yet and it was in January; it was close to 5 o’clock.
“Q Close to 5 o’clock. All right. Then you talked with him down at headquarters, interrogated him?
“A Attempted to, yés, sir.
“Mr. DeLEVE: I object to any reference to any attempt to interrogate this defendant while he was under arrest.
“THE COURT: Overruled.
“Q (By Mr. B'eitling) Interrogate means ask questions, doesn’t it?
“A Yes, sir.
“Q All right, you asked questions of him about this thing to give him a chance to explain where he was and what he had to do with it?
“A We attempted to, yes, sir.
“Q Did you have any problems about that, talking with him?
“A He apparently wasn’t in any condition to be questioned and just refused to answer questions at all.
“Q What do you mean, he wasn’t in any condition? Was he bloody and torn all up?
“A No.
•“Mr. DeLEVE: Your Honor, I object to the question for the reason it calls for an improper conclusion on the part of this witness as to the condition of the defendant.
“THE COURT: Well, he may describe his appearance, describe what he saw.
“Q (By Mr. Beitling) Go right ahead, Officer. I want these people to hear everything.
“A He appeared to be under the influence of alcohol or drugs or something similar to that, for he wasn’t 'coherent at the time we were trying to question him at headquarters.
“Q Were you able to learn anything from him concerning where he was when this robbery occurred at some place near the noon hour on January 21?
“A No, sir.
“Q At any time that you talked with him were you able to learn anything .about this at all ?
“A No, sir.”

The rule in this state, and the greater weight of authority, is that silence of the accused when not under arrest, and in circumstances such that only a guilty person would remain silent, may be shown. After arrest or while in custody the evidence is inadmissible because he is under no duty to speak. State v. Dowling, 348 Mo. 589, 154 S.W.2d 749, 755 [4, 5] and the many cases there cited from this and other jurisdictions. Also, see: State v. Foley, 144 Mo. 600, 46 S.W. 733, 736; State v. Allen, Mo., 235 S.W.2d 294, 296; State v. Vainikos, Mo., 366 S.W.2d 423, 427 [4, 5]. Compare: State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, 756-7 [6-11]; State v. Rush, Mo., 286 S.W.2d 767, 771 [3-6]. The defendant apparently remained ■silent, in the sense of mute. Was this silence caused by his physical condition? The officer concludes that it was. The defendant does not refute this conclusion or explain for he did not testify in his own behalf, but he was not required to take the stand and testify even for the limited purpose of refuting the officer’s conclusion. What prompted the State’s trial attorney to make the inquiry eliciting this testimony and what was its purpose, the prosecution having made a strong submissible case without it? Perhaps the questions asked will shed some light on this. Note again the question: “All right, you asked questions of him about this thing to give him a chance to explain where he was and what he had to do with it?” And not being content with the answer that defendant was not in any condition to be questioned and that “[he] just refused to answer at all”, note again the further questions. “Were you able to learn anything from him concerning where he was when this robbery occurred at some place near the noon hour on January 21 ?”, and, "At any time that you talked to him were you able to learn anything about this at all?” (Emphasis ours). Perhaps we could say (although we do not so hold) that had the State’s attorney left this subject when the jury had the description of defendant’s physical condition, the purpose of the interrogation was only to show that condition and that his rights were not violated. The only case cited by the State on the point to support its contention is State v. Higgins, 311 Mo. 599, 278 S.W. 977, wherein this court held that it was not error to permit the state to show the exhausted condition of defendant when brought back to the scene of the crime under arrest as this was indicative of his recent flight. The court also held that remarks of the prosecuting attorney concerning defendant’s condition after arrest did not come within the inhibition of what is now § 546.270 prohibiting reference to defendant’s failure to testify. Obviously this, the only case cited by the State to support the admissibility of this evidence and its one answer to defendant’s contention, is not applicable.

In State v. Dowling, supra, this court held that the law of this state was otherwise than that announced by an appellate court of California in People v. Graney, 48 Cal.App. 773, 192 P. 460, 461, wherein the latter court said, “ * * * that if a defendant [under arrest] denies an accusation the incident cannot be shown, but if he merely remains silent or refuses to talk it can be.” (Emphasis theirs.)

Considering defendant’s condition as described by the officer, there would be some question as to whether defendant heard or understood what was being asked of him and his remaining mute to those questions should not be admissible against him under the circumstances of this case. Had the state affirmatively shown facts and circumstances indicating that he heard and understood, and had he not been under arrest, the evidence would have been admissible.

The evidence that defendant did not respond to the officer’s questions while under arrest may well have been considered by the jury in determining his guilt or innocence. We are constrained to hold that the evidence referred to was not competent and that its admission was error prejudicial to defendant.

As to his assignment that instruction No. 3 given by the court was broader than and outside the scope of the information, defendant says that whereas the information charges him with stealing twelve rolls of pennies and three rolls of nickels the instruction erroneously permits the jury to find him guilty if he stole “any money or property” from Thompson. A similar objection was made to a somewhat similar instruction in State v. Trout, Mo., 116 S.W. 2d 103, 104 [5]. The instruction in that case permitted the jury to find defendant guilty if he took “any money and property described in the information.” The information charged and all testimony on the issue established the larceny of a certain quantity of money, as is also true in the case at bar. While the court held that the giving of that instruction was not reversible error, the opinion commented that: “Although the practice is not to be commended, in the instant case, there being no variance between the allegations and the proof in the respect mentioned, the jury must have understood reference was made to the $1,270.” Since this case must be remanded for other reasons stated above, counsel for the State might well take another look at the instruction before retrial.

As to his assignment that the court erred in determining and assessing his punishment under the Habitual Criminal Act, defendant says (1) that there was no evidence that he was placed on probation, paroled, fined or imprisoned after having been convicted of a prior offense punishable by imprisonment in the penitentiary, and, (2) that there was no entry of record, prior to submission of findings by the court as to prior conviction, sentence and subsequent imprisonment, etc. The record is bare of evidence that the defendant was placed on probation, paroled, fined or imprisoned for the prior conviction in Jackson County, Missouri, of Burglary, Second Degree, and Stealing, of which conviction and sentence there was proof. The record is also bare of any finding by the court of this prior conviction and sentence and of his being subsequently placed on probation, paroled, fined or imprisoned therefor. Were it not for the error in the admission of evidence for which we must reverse and remand this case for a new trial, the error complained of would have required that the case be remanded for the purpose of holding a hearing on the issue of the applicability of the Habitual Criminal Act as was recently required in State v. Kent, Mo., 375 S.W.2d 40. See also State v. Hill, Mo., 371 S.W.2d 278 and State v. Kent, Mo., 382 S.W.2d 606.

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

All concur.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    The ZURICH INSURANCE COMPANY, Plaintiff-Respondent, v. The MISSOURI EDISON COMPANY, a Corporation, Defendant-Appellant.
    No. 50589.
    Supreme Court of Missouri. Division No. 1.
    Dec. 14, 1964.
    Edward A Glenn, Louisiana, Ely & Hib-bard, Hannibal, for respondent.
    Mcllroy & Millan, Bowling Green, for-appellant.
   HOLMAN, Judge.

On July 28, 1960, plaintiff issued its policy of insurance on the newly constructed residence of James and Gladys Bates which was located on River Ridge Road in Louisiana, Missouri. On March 19, 1961, an explosion occurred in said residence which (together with resulting fire) substantially destroyed the building and its contents. Plaintiff paid the Bateses $22,566 by reason of said loss and Mr. and Mrs. Bates executed a subrogation receipt whereby they assigned to plaintiff any claim they might have against third parties for causing their loss. Plaintiff sued defendant, alleging that the explosion was caused by its negligence. The trial resulted in a verdict for defendant. A new trial was ordered because of error in giving Instruction No. 5 at the request of defendant. The defendant has appealed from that order.

The evidence favorable to plaintiff will support the following statement of facts: River Ridge Road runs in an east-west direction. The Bates residence was located on the north side of the street near the east end. There was one house farther east, facing on a traffic circle at the end of the street, and two other houses were located about 300 feet west of their home on the south side of the street. Those houses were occupied by the Anderson and England families. The main sewer line was located in the middle of the street and was buried at a depth of from five to nine feet. That sewer was constructed of tile and there were three manholes therein in the area near the Bates residence. One manhole was located just east of the Bates home, another was on the property line between the Anderson and England properties, and a third was located down the hill back of those homes. Twelve feet south of the sewer line defendant had installed a gas line which was constructed of 2}4-mch cast iron pipe buried approximately three feet below the surface of the street.

Mr. and Mrs. Bates moved into their new home in early August 1960. The rooms were all on one floor and there was no basement. They used gas for their cook stove, water heater, and furnace. Shortly after they moved in they experienced difficulty with their pilot lights going out. They complained to defendant and defendant’s service man investigated and reported that the difficulty was caused by a leak in the meter, which he purportedly repaired. However, they continued to have trouble with the pilot lights and thereafter had their equipment checked by a plumber, who may have helped the situation but was not able to correct the difficulty entirely. During the late summer and fall Mr. and Mrs. Bates also detected “an awful gassy odor” in their back yard.

The Bates residence had a small room in which they intended to install fixtures for a half bath. On Saturday, March 18, a plumber began work on that project. He cut a hole in the floor and installed a sewer pipe which ran from the Bates sewer line to the hole in the floor where he intended to place a toilet stool. When the plumber left that day he had not installed any fixtures, and the sewer 'connecting the half bath with the service line was left open. That evening Mr. Bates (who was a carpenter by trade) laid a tile floor in that room. On Sunday morning there was a strong odor of gas in the house and when Mr. Bates left to take their children to Sunday School he told his wife to stuff newspapers in the hole in the sewer opening in order to stop the gas. Mrs. Bates did that, and then decided to sweep the floor of the room. To facilitate that work she switched on the light and immediately there was “a big explosion.”

During the four days following the explosion employees of the defendant and of the Public Works Department of the city made various tests in an effort to determine-the cause of the explosion. Robert Stephens, who was in charge of the city water and sewer systems, testified that on Monday the manhole near the Bates home showed an explosive mixture present; that tests made by defendant’s employees showed' that there were explosive quantities of gas. in the ground near the Anderson property; that at the request of defendant he sealed the manhole back of the Anderson property and in that way determined that no gas was coming up from the sewer system below; that after sealing the sewer he could then smell mercapton (an odor-izing agent present in defendant’s gas) at the Bates manhole; that on Thursday the defendant’s employees made tests which indicated a break in the gas line near the east end of the Anderson property; that when the pipe was uncovered it was found to be broken in two at that point; that defendant repaired the pipe and thereafter tests were made which indicated that there was no gas at the manholes; that on Monday he had not detected the odor of mer-capton at the Bates manhole but had been able to smell it at the Anderson manhole; that he later took a sample of the air from the Anderson manhole and had it tested by chemists at the Hercules Powder Company who reported the presence of natural gas in the sample. This witness testified that sewer gas results from the accumulation of sewage and that his investigation indicated no collection of sewage in any of the manholes in that area.

The defendant offered a number of witnesses who testified concerning the manner in which the gas line in question was constructed. The evidence showed that it was constructed in August 1959 of cast iron pipe which should have been serviceable for at least 100 years. There was also testimony to the effect that defendant made tests three or four times a year in an effort to discover any leaks that may have developed in its gas lines.

Plaintiff’s case was submitted under the res ipsa loquitur doctrine. It was plaintiff’s theory that gas escaped from defendant’s broken line and traveled through the soil to a point where it entered the main sewer, and thence through that sewer into the service line leading to the Bates residence, and entered the room where the half bath was being installed through the open, untrapped sewer connection, and there exploded.

There was evidence to the effect that sewer gas will explode and defendant sought to show, at least by inference, that the explosion in question was caused by sewer gas rather than by natural gas which may have escaped from its line. Also, one of defendant’s experts testified that it was possible that the explosion caused the break in the gas line. . .

Plaintiff’s main instruction authorized the jury to find that defendant was negligent upon a finding that it was in exclusive control of the gas line which broke and that gas escaped therefrom and entered the public sewer from which it passed into the Bates sewer and thence into the Bates residence where it became ignited and exploded.

As stated, the court granted a new trial because of error in giving Instruction No. 5, which reads as follows:

“The court instructs the jury that the defendant, the Missouri Edison Company, is not an insurer against the breakage of its street main in question and even should the jury find the main in question was broken before the explosion and that gas escaped therefrom, causing the explosion in question, yet should the jury further find that the Missouri Edison Company did not know of the break or could not [have] known of it in the exercise of reasonable care, considering all of the circumstances in evidence, in time to have repaired the break before the explosion, then in such event your verdict must be in favor of the defendant, the Missouri Edison Company; provided further that you also find that the defendant, Missouri Edison Company, was not guilty of any other negligence as set out in other instructions.”

In ordering the new trial, the court filed a memorandum in which it stated that the middle portion of the instruction, “exculpating the defendant on the sole ground of lack of notice, was erroneous. This for the reason that in a res ipsa case the defendant’s verdict-directing instruction must ‘require a finding for the defendant on every reasonable ground of negligence on its part; it may not limit or restrict the finding to but one of several permissible inferences of negligence.’ Jones v. Terminal R. Ass’n., [Mo.] 242 S.W.2d 473 (11-12), and see Statler v. St. L. P. S. Co., [Mo.App.] 300 S.W.2d 831(4, 5). As first submitted, the instruction was appropriate to a specific negligence case, not a res ipsa case. In an attempt to conform Instruction No. 5 to the rule announced in the Jones and Statler cases, the court added the condition that the jury find defendant guilty of no other submitted negligence. Viewed in its entirety, Instruction No. 5 emphasized the falacious defense of the defendant’s lack of timely notice, and then added a technical condition that was weak by comparison, and was misleading and confusing.”

Defendant’s first point is that plaintiff is in no position to complain of Instruction No. 5 because the evidence did not meet the requirements of a res ipsa loquitur case and plaintiff was therefore not entitled to have its case submitted on that theory.

“In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.” McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641. There is no question but that plaintiff’s evidence complied with all of those requirements as relates to defendant’s gas line at the point where the break was discovered. However, defendant asserts that it did not have control of the instrumentalities involved and did not possess superior knowledge of the cause of the occurrence because the “instrumentalities” in this case would include the city sewer and the Bates’ sewer line.

We do not agree with defendant’s contention. There was evidence from which a jury could reasonably find that the gas which entered the Bates home came from defendant’s broken line. In that situation the basic, primary cause of the explosion was the break in defendant’s line. If the line had not broken the explosion would not have occurred. The sewer lines were innocent conduits of the gas that had escaped from defendant’s main. We accordingly rule that it was sufficient for plaintiff to show that the requirements of the res ipsa doctrine were present as relates to defendant’s gas line.

Defendant also says that in proving that gas escaped from its broken line, plaintiff proved the specific negligence which caused the explosion and for that reason was not entitled to a res ipsa submission. It is true that plaintiff proved that the explosion was caused by a break in defendant’s line. It did not, however, prove the negligence of defendant which caused the line to break. A line of that kind will ordinarily last for 100 years. There must have been some particular reason why this one broke in less than two years. It may have been defective when installed, or carelessly installed, or it may have been subjected to sufficient external force or internal pressure to cause it to break. It could be that defendant was negligent in not discovering the break in time to have repaired it and hence have avoided the explosion. Since plaintiff did not prove the specific negligence of defendant which caused the casualty, we think the case was properly submitted under the res ipsa doctrine. In the case of Adam Hat Stores v. Kansas City, Mo.Sup., 316 S.W.2d 594, we held the res ipsa doctrine applicable in an action for damages resulting from the breaking of a water main. We think the reasoning in that case is decisive here. In the respect here applicable, we can see no difference between a water pipe and a gas pipe. See also Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, and Anello v. Kansas City, Mo.App., 286 S.W. 2d 49.

In support of its contentions defendant has cited Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21, Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749, and Hanson v. City Light & Traction Co., 238 Mo.App. 182, 178 S.W.2d 804. Those cases do not aid defendant. In Lukitsch the plaintiff’s petition alleged and her evidence disclosed the specific negligence, if any, which caused the casualty and we held it was not a res ipsa case. The specific cause of the accident was also shown in Conduitt. The Hanson case was a “gas leak” case in which we held the res ipsa doctrine applicable.

We have concluded that Instruction No. 5 was erroneous and hence the trial court properly granted a new trial. The court’s memorandum, supra, effectively points out the respects in which the instruction was improper and confusing. In practical effect the instruction could reasonably be construed as directing a verdict for the defendant upon a finding that it did not have actual or constructive notice of the break in time to have repaired it before the explosion. The proviso at the end would likely have been confusing to the jury. The phrase, “other negligence as set out in other instructions,” would reasonably imply that the negligence was specified in other instructions. Since plaintiff’s main instruction was drafted upon the res ipsa theory it did not submit specific negligence. In the Jones case, supra, we stated that a defendant’s verdict-directing instruction in a res ipsa case must “require a finding for the defendant on every reasonable ground of negligence on its part, it may not limit or restrict the finding to but one of several permissible inferences of negligence.” 242 S.W.2d 479. We cannot confidently say that Instruction No. 5 complied with the quoted requirement. At best, the proviso is vague and confusing as to the finding required of the jury in regard to other negligence.

In support of its contention that the instruction was not erroneous defendant has cited Koogler v. Mound City Cab Co., Mo.Sup., 349 S.W.2d 233, and Boresow v. Manzella, Mo.Sup., 330 S.W.2d 827. In each of those cases an instruction somewhat like the one under consideration was held not to be erroneous. However, the instructions m those cases are distinguishable because they were conventional “sole cause” instructions. The submission of one act or occurrence as the sole cause of the casualty, and the requirement of a finding that such act or occurrence was not negligence and that defendant was not guilty of any other submitted negligence, was sufficient to comply with the rule stated in the Jones case.

As indicated, we rule that the trial court properly granted a new trial because of the error in giving Instruction No. S.

The order appealed from is affirmed and the cause is remanded.

All concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney General, Appellant, v. Manuel CAMERON, Respondent.
    No. 49720.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.

      Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for appellant.
    Walter D. McQuie, Jr., Montgomery City, for respondent.
   STOCKARD, Commissioner.

The Attorney General of Missouri, as authorized by Section 198.160 (statutory references are to RSMo 1959, V.A.M.S.), filed a petition on April 26, 1962, in the Circuit Court of Warren County whereby he sought to enjoin respondent’s alleged operation of a nursing home when he had not obtained the license required by Chapter 198.

In addition to the request for a permanent injunction, appellant prayed for a temporary injunction “pending a final determination of this action.’’ On May 1,1962, the trial court issued its order to respondent that he appear on May 5, 1962, and “then and there show cause why a temporary injunction as pray-cd by plaintiff should not be granted.” See Sections 198.160 and 526.050 for the authority of a court to grant a temporary injunction, and Civil Rules 92.02 and 92.19, V.A.M.R., for the procedure pertaining thereto. At the appointed time respondent appeared with counsel, but instead of assuming the burden as contemplated by Civil Rule 92.19, and specifically set forth in the show-cause order, the Attorney General (of his own volition as far as shown by the record) assumed the burden, at least of going forward with the evidence, and presented the testimony of eight witnesses, including that of respondent and his wife. At the conclusion of all the evidence the court entered its judgment wherein it stated that the respondent “having been notified to be and appear before the Court on this date to show cause why a temporary injunction as prayed by plaintiff should not be granted, appears in person and with counsel, * * * and the parties announce ready for hearing and evidence is adduced on the merits of this cause.” The court then found that appellant “has not proven the allegations of the petition; that * * * [respondent] is not providing maintenance, personal care or nursing service for three or more individuals not related to him, who by reason of illness, physical-infirmities or advanced age are unable to care for themselves; and that defendant is not -providing sheltered care to three or more individuals not related to him, which sheltered care includes treatment and service which meet needs of said individuals beyond their basic requirement for food, shelter and laundry.” It was then decreed that “the temporary injunction sought by plaintiff not issue and is not granted, and plaintiff’s petition is dismissed with costs taxed against plaintiff.” (Italics added). The Attorney General has appealed.

The first point in appellant’s brief is that the trial court erred “in dismissing plaintiff’s petition after the hearing on the temporary injunction and its refusal to permit a hearing on the application for a permanent injunction for the reason that refusal to grant a temporary injunction is not a final determination of the cause where the petition was unchallenged as to form or sufficiency.”

At the time of the hearing on May 5, respondent had not filed his answer, and it was not then due. Insofar as the question is governed by the pleadings, whether the State was entitled to a permanent injunction was not an issue then subject to determination. Whether the petition was subject to being dismissed on the ground of insufficiency could have been raised but was not. Respondent did not then, and does not now, challenge the sufficiency of the petition and the trial court did not dismiss it on that ground.

Civil Rule 92.02 and Section 526.-050 authorize the issuance of a temporary injunction “when it shall appear by the petition” that the plaintiff is entitled to the relief demanded, and (1) such relief or any part thereof consists in restraining the commission or continuance of some act of the defendant, the commission or continuance of which, during the litigation, would produce injury to the plaintiff, or (2) when, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, some act in relation to plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual. This latter situation is not involved in this case. Civil Rule 92.19 provides that when a temporary injunction is requested, and it is deemed proper by the trial court, the defendant “should be heard,” that is, be afforded an opportunity to show why a temporary injunction should not be granted. Neither Civil Rule 92.19 nor any other rule contemplates that at the hearing on the show-cause order pertaining to a temporary injunction, there shall be a trial of the merits of the request for a permanent injunction, which frequently would not and in this case was not at issue on the pleadings. There is no requirement nor is it necessarily contemplated that at the hearing on the show-cause order plaintiff will present all of its evidence on the merits of the request for a permanent injunction, and as previously mentioned, Civil Rule 92.19 does not necessarily contemplate that any evidence from plaintiff is necessary. The burden is expressly placed on the defendant to show cause why the temporary injunction should not be issued. Therefore, when the petition is sufficient, and by it plaintiff seeks to enjoin permanently the commission or continuance of some act of the defendant, and the trial court is of the opinion that the evidence at the hearing on the show-cause order does not warrant the issuance of a temporary injunction then the request for a temporary injunction should be denied. However, the determination as to whether the permanent injunction should be granted or denied, absent some impelling reason to the contrary, must await the trial on the merits after the issues are drawn by all of the pleadings. As stated in 43 C.J.S. Injunctions § 199 d (3), p. 921, “Unless the parties otherwise agree, the cause may not be finally determined on the evidence submitted at the hearing on the application for the preliminary injunction.” See generally, Stegmann v. Weeke, 279 Mo. 131, 214 S.W. 134; State on Inf. of McKittrick v. American Ins. Co., 351 Mo. 392, 173 S.W.2d 51; 28 Am.Jur. Injunctions § 12.

Respondent urges that an impelling reason to dismiss the petition at the time it was done in this case did exist, and that the dismissal of the petition should be affirmed. It is asserted that the “entire case, both the show-cause order and the merits of issuance of a permanent injunction, [were] submitted to the court and taken by the court at the hearing on May 5, 1962.”

The parties could by express agreement, even before the answer was due and filed, try the issue of a permanent injunction on its merits, and if no mention of an answer was made in the agreement, a general denial on the part of the defendant necessarily would be assumed. However, there was no such express agreement in this case. In fact, there is no reference whatever in the record concerning such an agreement or understanding, and at one time during the hearing counsel for the State asked whether certain facts could be stipulated “so [he] will know whether it is necessary to subpoena records from the licensed nursing" home for the next hearing.” No objection to this statement was made by respondent or the court on the basis that the present hearing was to be the final one.

The real basis for respondent’s contention is that by the acts of the parties-there was an implied agreement that the issue of the permanent injunction be tried at. the hearing on the order to show cause.. Respondent argues that this implied agreement is indicated by the fact that the State-voluntarily assumed the burden of attempting to prove that it was entitled to a permanent injunction when by the show-cause order the burden was on respondent to show why the requested temporary injunction should not issue. The State did, for some reason not disclosed by the record, assume the burden of going forward with the evidence at the hearing on the show-cause order, but we find no basis for holding that it impliedly agreed to a hearing on the merits-of its request for a permanent injunction, and that it assumed the burden of proving at that time that it was entitled to a permanent injunction. The most that can be said is that the State voluntarily assumed the burden of showing its entitlement to the matter then at issue; that is, the temporary injunction. At this hearing the State was not required to present its entire case, there is no indication that it intended to do so, and on the contrary it clearly appears that counsel for the State contemplated a subsequent trial on the merits of its request for a permanent injunction. We find no basis for ruling that the issue of the right of the State to a permanent injunction was tried by implied agreement at the hearing on the order to show cause why a temporary injunction should not be issued.

Although not urged by respondent, we shall mention that if it should appear at the hearing on the order to show cause that for some reason as a matter of law plaintiff would in no event be entitled to a permanent injunction, the matter could then be finally-disposed of, but it should be done pursuant to a motion for summary judgment or other appropriate proceeding. The record in this case does not disclose such situation.

Appellant also asserts that in any event the trial court erred in taxing the State of Missouri with costs of the proceeding. See Murphy v. Limpp, 347 Mo. 249, 147 S.W.2d 420; Hartwig-Dischinger Realty Co. v. Unemployment Compensation Commission, 350 Mo. 690, 168 S.W.2d 78. However, costs ordinarily are to be taxed at the termination of legal proceedings and in view of the disposition of this appeal we need not specifically rule this contention.

For the above reasons the judgment of the trial court dismissing the petition for a permanent injunction must be reversed. However, by this action we express no opinion concerning the weight to be given to the State’s evidence, when presented, of noncontinuing violations by respondent of Chapter 198 prior to the filing of this petition in 1962 as the basis for granting a permanent injunction in 1965, which would be the earliest time a trial of the merits could be held. That is a matter for the consideration in the first instance by the trial court

The judgment is reversed and the cause remanded.

BARRETT, C., concurs.

PRITCHARD, C, not participating.

PER CURIAM:

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

All of the Judges concur.


text:
    Isabella SAFLEY and Marie T. Wepprich, Plaintiffs-Appellants, v. Mrs. James VERDI, a/k/a Emily White Simmons, Defendant-Respondent.
    No. 50602.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.

      Robert Stemmons, Mt. Vernon, for appellants.
    Paul E. Decker, Rolla, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

Isabella Safley and Marie T. Wepprich each filed an action in the Circuit Court of Phelps County, Missouri, against Mrs. James Verdi to recover damages for personal injuries alleged to have been' sustained when a car in which they were riding collided with the rear of a car driven by Mrs. Verdi.

By stipulation, the cases were consolidated in the Circuit Court and a trial resulted in a jury verdict for the defendant and against both plaintiffs. An appeal was taken to this Court.

Each plaintiff asked for $50,000 in damages, vesting appellate jurisdiction in this. Court. Pending the appeal, Marie T. Wep-prich died. On request, this Court substituted Mrs. Safley, a daughter of Mrs, Wepprich and administratrix, as a party appellant.

(We shall refer to the parties as plaintiffs and defendant throughout the opinion.)

The collision in question occurred at about 5:00 p. m., on November 16, 1962, on U. S. Highway 66 east of a crossover at Bourbon, Crawford County, Missouri. At this point, Highway 66 is a four-lane roadway. Two lanes are for eastbound traffic and two for westbound traffic, with the eastbound and westbound lanes separated by a distance of “approximately two car lengths.”' It was agreed that it waS- raining a little or misting at the time of' the collision. According to witnesses, it -was dark or twilight and operators of cars had the lights of their cars turned on.

Plaintiffs submitted their case to the-jury on the theory that defendant “suddenly, without notice or warning, stopped', or caused her said automobile to be stopped in front of the automobile plaintiffs were-passengers in and failed to extend her arm or give other timely notice of her-intention to stop on said highway, if you. so find, and in such a position that the-right side of said automobile was not as. close or as near the right side of the highway as was practicable and thereby obstructed the roadway, if you so find, and' if you further find there were no lights,, or lighted lamps on said automobile at a time when the light conditions were dark and rain or mist was falling, * * *.”■

Defendant’s defense was that the motor of her car suddenly stopped; that there was an upgrade at that point and defendant applied her brakes to prevent her car from rolling backward; that while attempting to start her car and within 30 seconds after her car stopped, her car was struck by the car in which plaintiffs were riding. At defendant’s request, the •court gave instruction numbered D-A-G, of which plaintiffs complain. It reads as follows :

“The Court instructs the jury that if you find and believe from the evidence ■that at the time and place mentioned in •evidence defendant drove her automobile from the crossover mentioned in evidence into the eastbound lanes of said Highway •66 and if you further find that defendant exercised the highest degree of care in •driving her said automobile at said time and place but that an unexpected and un-forseen mechanical failure resulted, causing her automobile to stall in the traveled portion of the right lane of the eastbound lanes of said highway, if you so find that ■such mechanical failure did occur and that the automobile was thereby caused to become stalled, and if you further find that ■defendant could not by the exercise of the highest degree of care have removed her said automobile from the traveled portion •of said highway within the time between the time her automobile stalled, if so, and the time of the occurance of the collision •of the automobiles mentioned in evidence, and if you further find and believe from the evidence that defendant could not by the exercise of the highest degree of care, 'have had sufficient time to warn other motorists traveling on said highway of the presence of her stalled automobile, ■and if you further find that at the time of the collision and at all times immediately q>rior thereto, defendant had her headlights •and tail-lights lighted on her said automobile and that there were also other lights at •or near the south edge of said highway which illuminated the portion of said highway at the point where defendant’s stalled automobile was located at the time of the collision so as to make her automobile visible to other motorists traveling on said highway for a sufficient distance so as not to constitute any immediate hazard of a collision, if you so find the facts to be, then the Court instructs the jury that the fact that defendant’s automobile was on the said highway at said time and place did not constitute negligence on defendant’s part and your verdict must therefore be in favor of the defendant and against the plaintiffs.”

Plaintiffs brief two points: First, that the trial court should have directed a verdict for plaintiffs. Second, that the court erred in giving instruction D-A-G, above set forth in full. Defendant did not see fit to file a brief. On reading the record, we find that plaintiffs introduced substantial evidence to support the allegations of negligence submitted to the jury by their instructions as given by the court. We shall relate additional evidence in connection with a consideration of the points briefed by plaintiffs.

Plaintiffs’ contention that the trial court should have directed a verdict for them must be denied. Sec. 304.019, V.A.M.S., the case of Matthews v. Mound City Cab Company, Mo.App., 205 S.W.2d 243, cited by plaintiffs along with other cases cited do not support plaintiffs.

Defendant testified that she drove her car from St. Louis on Highway 66 intending to go to Bourbon where she was to meet her husband at a Standard Service Station located east of a crossover at Bourbon and south of Highway 66. She stated that she turned south on the crossover, stopped at a “Yield” sign before entering the eastbound lanes of Highway 66; that she saw cars approaching from the west; that she had sufficient time to make a turn to the east; that as she reached a point in the right-hand lane of the eastbound lanes of Highway 66 and east of the crossover, the motor of her car suddenly stopped; that she applied the brakes to prevent the car from rolling backward and attempted to start the motor; that within 30 seconds, her car was struck by plaintiffs’ car; that the lights on her car were on and that the right turn signal was on during all that time and still on after the collision; that the right turn signal was on because she was only a short distance from the service station; that she had no time to give other than the light signal; that she did not know why the motor stopped; that there was gas in the tank and the motor had not failed prior to that evening. She testified further that during the 30 seconds in which her car was stalled, one of the cars she had noticed coming from the west passed her car on the north or inner lane of Highway 66. We see no justification for the trial court to have directed a verdict for plaintiffs. It was a jury question whether defendant’s negligence, if any, contributed to the collision and to plaintiffs’ injuries.

In Matthews v. Mound City Cab Company, supra, the St. Louis Court of Appeals said (205 S.W.2d 1. c. 248), “This is not to imply that every sudden and abrupt stop of an automobile is in and of itself proof of negligence, but only that such a stop will constitute negligence if there is no emergency shown to justify it, and it is made in disregard of the presence of vehicles following so closely behind that they may be unable to avoid a collision.” See also 60 C.J.S. Motor Vehicles § 332, p. 775. The trial court ruled correctly in refusing to direct a verdict for plaintiffs.

In the next assignment of error briefed by plaintiffs, they find fault with instruction D-A-G in a number of respects. They say that the instruction “does not properly hypothecate sufficient and proper facts upon which a jury could find that an ‘unexpected and unforseen mechanical failure resulted.’ ” They say further that the term “mechanical failure” was not defined and that there was no evidence of a mechanical failure. We cannot agree. The defendant testified that the motor of her car stopped and that she did not have tim'e to nor could she have removed it from the roadway during the time, 30 seconds, before, it Was- struck. In this connection, we have carefully considered the opinions in the cases of Eastman v. Brackman, Mo., 347 S.W.2d 126, by this Court en Banc, and Phillips v. Stockman, 351 S.W.2d 464, by the Springfield Court of Appeals. In each case, liability for damages was claimed because a motor vehicle was stalled on a roadway. In each case, the defense was that the car or truck was unavoidably on the roadway. In the Eastman case, the defendant’s car had skidded on ice and snow. In the Phillips case, the motor of the defendant’s truck stalled. In each case, no particular mechanical defect was proven. In the case before us, the evidence as to any defect was similar to the evidence as to a defect in the truck involved in the Phillips case, that is, that the motor stalled. To constitute mechanical failure, it is not necessary that there be evidence of a broken wheel or that some particular mechanism be out of order. It is sufficient if for some reason the motor vehicle cannot be removed under its own power. The Eastman and Phillips cases support this conclusion. See also 60 C.J.S. § 332, p. 775.

Plaintiffs say that the instruction failed to hypothecate necessary facts which would constitute a legal excuse for failure “to stop her motor vehicle as close to the right-hand side of the highway as was practicable or to remove same * * * or failure to give a timely warning.” A reading of the instruction along with the evidence stated supra is all that is necessary to refute this contention. Neither was it necessary for the instruction to negative any concurrent negligence of defendant with that of the driver of the car in which plaintiffs were passengers. This point was fully covered by instructions given at plaintiffs’ request. Instruction D-A-G required a finding that defendant was not negligent before a verdict was authorized.

Plaintiffs say that the instruction hypothecates facts which were not in evidence, that is, that there was no evidence •of any illumination of the portion of the highway at the point of the collision. This •point is without merit. The defendant testified that there were lights at the service station which illuminated the place where the collision occurred. State Trooper Donald Shelton also so testified. Note his evidence:

“Q Now, on the night of this accident, could you tell the Court and jury whether or not there is any business places in the vicinity that illuminates . the area at the point where this accident occurred?
“A There is a filling station-restaurant and motel in this general area. The lights do illuminate that area to a certain extent.”

We rule that the case was properly tried and that the judgment for the defendant (respondent here) should be and it is hereby affirmed.

PER CURIAM.

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner is adopted as the opinion of the Court.

All of the Judges concur.


author: DALTON, Judge. EAGER, Chief Justice STORCKMAN, Judge

text:
    Elma SHEPHERD, Appellant, v. The CONSUMERS COOPERATIVE ASSOCIATION, a Corporation, et al., Respondents.
    No. 50337.
    Supreme Court of Missouri, En Banc.
    Dec. 14, 1964.

      Thaine Q. Blumer, Kansas City, Blumer & Wright, Kansas City, of counsel for appellant.
    Sylvester Powell, Jr., Kansas City, Heil-bron & Powell, Kansas City, of counsel, for defendant-respondent.
   DALTON, Judge.

This cause, originally assigned to Division Two of this Court, was docketed for hearing at the January Session, 1964, but, after briefs were filed, the cause was transferred on the Court’s own motion, without opinion, to Court en Banc, where it was subsequently argued and submitted.

The action is by a wife for $50,000 damages for loss of consortium caused by the alleged negligent injury of her husband by the defendants on February 19, 1960, as the result of an automobile collision. The action was instituted in the Circuit Court of Clay County on April 16, 1963.

The trial court sustained defendants’ motion to dismiss plaintiff’s petition on the ground that the petition failed “to state a cause of action entitling plaintiff to the relief prayed for.” For proper terminology see Supreme Court Rule 55.33, V.A.M.R. or Section 509.300 RSMo 1959, V.A.M.S. Plaintiff has appealed and here contends that, “The Court erred in dismissing plaintiff’s petition because plaintiff has a legal cause of action for the loss of services causing damages to her as a result of injuries to her husband, which cause of action is not barred by release or previous litigation between defendants and plaintiff’s husband.” As appellant, she relies upon the case of Novak v. Kansas City Transit, Inc., Mo.Sup., 365 S.W.2d 539. The opinion in that case was prepared and adopted in Division No. 1 on November 14, 1962, and, thereafter, transferred on the Court’s own motion to Court en Banc, where it was again argued and submitted and the mentioned opinion was adopted on March 11, 1963, as the opinion of Court en Banc.

Defendants’ motion to dismiss plaintiffs'' petition, after a brief statement of facts, recited “that a recent decision by the Missouri Supreme Court, in the case of Novak vs. Kansas City Transit Company allowed a wife to sue for loss of husband’s services,” and further alleged that the Novak case “is not applicable to this case and is distinguished in the suggestions filed herein and attached hereto.”

We need not here review the detailed allegations of plaintiff’s petition except to say that it alleged that plaintiff’s husband was injured by the negligence of the defendants, specific negligence being alleged; and that, by reason of the injuries inflicted upon her husband to the extent detailed in her petition, she had “been caused to suffer the loss of the society, consortium, companionship, love, affection and support of the said James S. Shepherd, her husband; that she has been damaged thereby in the sum of FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS.”

Defendants’ motion to dismiss plaintiff’s petition further alleged that plaintiff sought to recover damages sustained by her as the direct result of the injuries sustained by her husband on February 19, 1960, in the automobile collision alleged in her petition; and that on January 24, 1961, her husband had instituted a suit against defendants for $100,000 damages for personal injuries alleged to have been sustained by reason of defendants’ negligence (a copy of the husband’s petition being attached); that the cause was tried for three days in the Circuit Court of Clay County; “that prior to closing arguments to the jury, James S. Shepherd’s case was settled for the sum of $16,000.00; that at said time a stipulation for dismissal dismissing said cause against the defendants with prejudice was signed and filed with the Court; that photostatic copies of the release, marked Defendant’s Exhibit B, and of the stipulation for dismissal, marked Defendant’s Exhibit C, are attached herewith and made a part hereof. Affidavit marked Defendant’s Exhibit D is attached and made a part hereof.”

Other grounds stated in defendants’ motion to dismiss plaintiff’s petition were as follows:

“4. That at the time the settlement was agreed upon between James S. Shepherd and the defendants, the law in Missouri prohibited a suit by the wife for loss of her husband’s services because of injuries sustained by him in an automobile accident ; that the decisions of the Court of Appeals and the Supreme Court at that time stated that a wife had no separate cause of action, the entire right of damages being considered in the husband and a settlement with the husband had always been recognized as closing the entire incident; that because of said decisions, these defendants did not obtain the signature of the wife on the release, nor was her name included as a payee on the draft, but it was the intention of all parties at that time that the entire litigation be finally disposed of.
******
“6. That to allow recovery in this case would be to allow plaintiff double damages, as the items prayed for in her petition for damages were considered by the parties in arriving at the amount of the settlement; it would also encourage the litigation of old lawsuits where a release was not obtained from the wife and where the statute of limitations has not tolled.”

The transcript fails to show that any evidence was offered in support of defendants’ motion, but the facts upon which defendants relied to support their motion to dismiss are not in dispute, nor are the facts in dispute upon which appellant now relies in support of her assignment of error on this appeal. In such situation only issues of law are for consideration.

The respondents, under Points and Authorities in their brief, insist that the trial court did not err in sustaining defendants’ motion to dismiss, because a suit by a wife for loss of her husband’s services is not. permissible where the husband’s personal injury suit was settled prior to the Novak decision. The only other matter presented, for consideration is a request that the Court should reconsider the ruling in the Novak case and refuse to follow it.

Considering the last point first, we find no sound basis for a reconsideration of' the conclusions reached in the Novak case. The opinion in question was carefully prepared by a well qualified commissioner with wide experience in the practice of law and' as a commissioner on this Court. The opinion further had the concurrence of the-other two commissioners in Division No. 1, who heard all arguments and fully considered the issues presented. The case was-also fully considered by the duly elected,, qualified and acting judges of this Court-sitting in Division No. 1, each of said' judges having heard the arguments and' having independently made their own investigation of the record and issues presented. Thereafter, the opinion was adopted by the unanimous vote of the judges sitting in Division No. 1 and the cause was-then transferred to Court en Banc, where-it was again docketed, argued and submitted and a dissent was prepared, circulated and considered. Thereafter, by the-majority vote of the judges of this Court, sitting in Court en Banc, the opinion of' Coil, C., was adopted as the opinion of the Court. It is true that it appears from the-record that three other duly elected, qualified and acting judges of this Court dissented and their views are expressed in the-dissenting opinion prepared and submitted' by Eager, J.

Respondents further cite and rely upon-a prior opinion of this Court en Banc in the case of Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320, adopted on December 19, 1918, but even in that case the-majority opinion written by Woodson, J.,. had the concurrence of only three judges, and a concurrence in the result by another-judge, while two judges dissented. A well-reasoned dissenting opinion was prepared and filed in that case to evidence the views of the two dissenting judges.

While the views of the dissenting judges in the Novak case may not have changed, nevertheless it now appears that a majority of the present Court still supports the views expressed in the opinion of Coil, C., in the Novak case, and nothing would be gained by writing another opinion to express the same views expressed in that opinion, hence we re-affirm the decision in the Novak case. In this connection reference may be had to the opinion in State ex rel. Keeling v. Randall et al., Mo., 386 S.W.2d 67 and to Supreme Court Rule 66.01 [c], adopted on November 16, 1964, effective July 1, 1965.

We now consider the further issue presented by respondents, to wit, that the No-vak opinion does not rule the issues here presented, because the husband’s personal injury damage suit was settled prior to the decision in the Novak case.

As stated, the case of Novak v. Kansas City Transit, Inc., supra, 365 S.W.2d 539, was decided by Court en Banc on March 11, 1963. Appellant’s husband in the present case was injured February 19, 1960. He instituted his action for damages for personal injuries against respondents herein on January 24, 1961 and the cause was settled by the payment to him of $16,000 on May 17, 1961, at which time the plaintiff therein executed a full release of all claims on his own behalf and signed a stipulation for dismissal of his suit.

On July 16, 1963, the trial court in-the present case heard defendants’ motion to dismiss plaintiff’s petition herein for loss of consortium by reason of the injuries to her husband by defendants’ negligence. The trial court sustained the motion and dismissed plaintiff’s suit on July 16, 1963, which was subsequent to the final decision of the Court in the Novak case.

Respondents’ detailed argument in sup■port of their contention that plaintiff’s suit for loss of consortium (because of physical injuries inflicted upon her husband by reason of defendants’ negligence) should not be sustained in this case, where the husband’s suit for personal injuries was settled by the defendants herein prior to the Novak decision, must be denied. Respondents’ argument is as follows:

Respondents insist that the precise question involved on this appeal was not decided in the Novak case; that it is not necessary to overrule the Novak case in order to affirm the ruling of the trial court in dismissing plaintiff’s petition in this case; and that this case differs from the Novak opinion in one very important respect, to wit, that the defendants paid $16,000 to appellant’s husband on May 17, 1961, in settlement of all claims for personal injuries. Respondents further insist that they relied upon the law as stated in the case of Bernhardt v. Perry, supra, and that “our whole system of jurisprudence is based upon the fact that we should and do rely upon the law as stated by our highest court.” Respondents also cite Stout v. Kansas City Terminal R. R. Co., 172 Mo.App. 113, 157 S.W. 1019, and Gambino v. Manufacturers’ Coal & Coke Co., 175 Mo.App. 653, 158 S.W. 77, opinions of the Kansas City Court of Appeals and the St. Louis Court of Appeals which reached the same result as the majority opinion in the Bernhardt case, but they are not mentioned therein. They are mentioned at the close of the dissenting opinion in the Bernhardt case.

Respondents concede that they did not obtain appellant’s signature to the release executed by her husband, but say that was “because on that date she had no separate cause of action.” Respondents further insist that they paid the $16,000 to appellant’s husband “intending thereby that all litigation arising out of that particular collision be settled”; and that they were justified in relying upon the then existing law as declared by this Court, in an en banc decision. Respondents further argue that it is possible some lawyers, in reliance upon the Bernhardt decision, may have destroyed statements, photographs and other exhibits pertaining to cases that were disposed of by settlement with husbands and releases executed by the husbands without releases from the wife, and that they may now be confronted with new cases. All of this may be true but it is not decisive of the issues here presented.

As stated, respondents take the position that the wife has been given a property right where heretofore none existed, and that the defendants have been deprived of one. Respondents ask us to clarify or modify our previous ruling so that it will not be applicable to a situation where the defendant has already paid money and obtained a release from the wife’s husband, prior to the Novak decision. They insist that this Court should hold the Novak decision to be prospective only; and that it be applied only in cases arising on or after the Novak decision was published “in the advance reports.” Respondents cite Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, 24[7]; Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193; State ex rel. May Department Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44, 53 [10]; and Gilday v. Smith Brothers, 226 Mo.App. 1246, 50 S.W.2d 191. We think these cases may easily be distinguished from the facts presented in the present case, since each case deals with procedural, rather than substantive matters, except the Gilday case which in effect was overruled in Lober v. Kansas City, Mo.Sup., 74 S.W.2d 815, 826 [15]. Respondents further insist that a statutory or judicial change of law is prospective and not retroactive in effect, and any such change subsequent to the trial of a case, which has been conducted according to the law at the time, does not alter, benefit or harm the rights and interest of the parties to that action. Gilday v. Smith Brothers, supra.

Respondents also argue, on the basis of the Bernhardt v. Perry case, that to permit a recovery by the wife against the same wrongdoer for the damages that she has sustained by reason of the same injuries her husband had recovered for would be granting double compensation to the plaintiff as against the defendants in the case, and they also insist that even under the Married Women’s Act, Sections 451.250-451.300 RSMo 1959, V.A.M.S. there are no actual services of the husband to which the wife is entitled, except the fact that he is obligated to support her and that since the husband may recover for any injuries sustained, his obligation to support his wife may be fulfilled from the recovery granted the husband.

It is apparent that this latter argument is based on the theory that the husband’s only marital duty is to support his wife and the argument does not mention or deal with other rights to which a wife is entitled, growing out of the marriage relation, as may be suggested by a review of the allegations made in the wife’s petition as set out in the opinion in Bernhardt v. Perry, supra, 208 S.W. 462, 464, as follows:

“That by reason of said injuries inflicted upon said Bernhardt as aforesaid, and as a direct result thereof, plaintiff Emma Bernhardt has been damaged in the following particulars, to wit:
“She has lost a great amount of sleep in worry and anxiety on account of the physical condition of her said husband and in watching over him and caring for him; she has been caused great worry and anxiety by reason of the fact that her husband is incapacitated so that he will never be able to engage in his usual occupation; that she has suffered on account of the inability of her said husband to have and enjoy the ordinary and customary use of his feet and limbs and other vital parts and organs of his body and that she will suffer in the future in this respect; that by reason of the physical and mental condition of her said husband she has suffered in mind and body and her health and strength impaired' and her nervous system greatly shocked and undermined; that she has been denied ■care, protection, consideration, companionship, aid, and society of her said husband which he would have rendered to her had ■such injuries not occurred, and that in the future she will be denied the same; that ■she has been denied the pleasure and assistance of her said husband in escorting her to places of amusement and in visiting friends and relatives, and will for all time to come be compelled to forego the same; that she has been required to remain at home for long periods of time and to deny herself to friends and relatives, and will for all time to come be much confined to 'her home and be required to deny her■self to her friends and relatives; * *

We are unable to understand how •payment to the husband for his personal ■injuries and damages could be considered •compensation to a wife for such losses and ■damages as she may have sustained in her ■personal capacity as the wife of the injured ■party. We think that she is entitled to recover for her injuries and damages as ■authorized in the Novak case.

Concerning the proposition as to whether the decision in the Novak case should be given retroactive or prospective effect, the applicable rule is well stated in the case of Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 377[10], where the Court said: “Our rule is that if the overruled decision is one dealing with a rule of procedure, that is, procedural or .adjective law, then the effect of the subsequent overruling decision is prospective only; but if the overruled decision is one •dealing with substantive law, then the effect of the subsequent overruling decision is retroactive. [Citing cases.]

“Adjective or procedural law is a ‘method provided by law for aiding and protecting •defined legal rights, procedure; the law which prescribes the method of enforcing rights or obtaining redress for their inva-sion.’ 1 C.J., p. 1197. ‘Substantive law is that part of the law which creates, de•fines and regulates rights, as opposed to ádjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion.’ 36 C.J., p. 963; Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.(2d) 268, loc. cit. 272. The distinction between substantive law and procedural law is that ‘substantive law relates to rights and duties which give rise to a cause of action,’ while procedural law’ is the machinery for carrying on the suit’ ”

And see Koebel v. Tieman Coal & Material Co., 337 Mo. 561, 85 S.W.2d 519, 524 [3-5], where this Court said: “* * * we have heretofore held that, when a decision overruling former decisions effects a change in the construction of a statute relating to procedure or some theretofore established rule of procedure, such new statutory construction or rule shall operate prospectively only and does not affect proceedings had prior thereto in conformity with the former construction of the statute or announced rule of procedure, but where, as in this case, former decisions are found to have approved an incorrect rule of general or substantive law, we have, in overruling such former cases, applied the correct rule in the case in which it is announced, and in doing so made it retroactive in effect, and have thereafter applied the correct rule in all cases coming before us, though in doing so it operates retroactively. * * * In matters of general law, former cases are overruled because the ruling therein never was the law and the case in hand is decided the same as if such overruled case had never been written. Such has been our constant practice, as the published reports show * *

Since the matter of a wife’s right to recover for her own personal damages resulting from the negligent infliction of injuries upon her husband involves a matter of substantive law, the contentions of respondents must be overruled and those of the appellant sustained.

The judgment is reversed and the causa remanded.

HYDE, HOLMAN and HENLEY, JJ., •concur.

EAGER, C. J., dissents in separate opinion filed and concurs in separate dissenting opinion of STORCKMAN, J.

STORCKMAN, J., dissents in separate opinion filed.

LEEDY, J., dissents and concurs in separate dissenting opinions of EAGER, C. J., and STORCKMAN, J.

EAGER, Chief Justice

(dissenting).

I dissent for all the reasons stated in my dissent in Novak v. Kansas City Transit, Inc., Banc, Mo., 365 S.W.2d 539. Nothing has occurred since to change my views. The creation of such causes of action as this has, in large part, forced this Court to amend its Rule 66.01 dealing with the consolidation of causes by adding a paragraph “(c)” requiring that suits for loss of services and consortium shall be filed jointly with the original action of the other spouse for his or her personal injuries. This amendment may help to some extent in restricting a duplication of damages but, in my opinion, nothing can completely remedy the chaos or eliminate a serious likelihood of duplication. Consequently, I dissent.

STORCKMAN, Judge

(dissenting).

On March 11, 1963, this court en banc by a divided court adopted an opinion in Novak v. Kansas City Transit, Inc., Mo., 365 S.W.2d 539, which overruled prior decisions of this court and created a cause of action in favor of a wife for loss of consortium caused by the negligent injury of her husband. Three members of this court (of which the writer was one) joined in a dissenting opinion which urged that the creation of such an action was not justified by the Married Women’s Act and was also contrary to the public policy of the state as expressed in the Workmen’s Compensation Act which does not recognize consortium as an item of compensation for either spouse. The dissenting opinion further urged that the abolition of the husband’s action for consortium would be more consistent with the intent and purpose of the Married Women’s Act because either injured spouse can now sue for and recover all proper items of damages in his or her own name. The cases which have appeared in this court indicate that the offspring, with the encouragement of Novak, is likely to become as numerous and sizeable as the parent action. I still believe that Novak is unsound and that all proper damages could be recovered under existing remedies and procedures.

Since the opinion was adopted, events have occurred which further demonstrate the unsoundness of the Novak decision generally and particularly as a rule of law to be applied in this state. The purpose of this dissenting opinion is to call attention to these additional factors.

On November 25, 1963, the Supreme Court of New Mexico in the case of Roseberry v. Starkovich, 73 N.M. 211, 387 P.2d 321, considered the question and held that a wife had no cause of action for loss of consortium. The Novak case is cited among the cases from states following the minority rule. The Supreme Court of New Mexico concluded that the majority of the states adhere to the rule denying a right of recovery. ' In a comparatively brief, unanimous opinion, the Supreme Court of New Mexico lists various state decisions, considers the views of text writers, and the arguments for and against the maintenance of such an action. The opinion comments on the “uncertain and indefinite nature of a wife’s claim for negligent interference with her right of consortium”, the “possibilities opened for double recovery if the right is recognized”, and the “great weight of authority developed since 1950”. We will not undertake to discuss the opinion further but approve and adopt it by reference as a part of this dissent.

In answer to the argument that a consortium action results in an overlapping of benefits and a double recovery of damages, the Novak opinion states, 365 S.W.2d 544: “Such result may be avoided by delineating accurately the items properly includable in the husband’s damages and by permitting the wife in her separate action to recover for the loss of only those elements of consortium which, under the facts of a particular case, represent separate and distinct losses to her.”

In 1964 this court gave final approval to Missouri Approved Instructions which are to be effective January 1, 1965. The only measure of damage instruction relating to personal injuries and property damage is 4.01 which is as follows: “If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any [injuries and] damages you believe he sustained [and is reasonably certain to sustain in the future] as a direct result of the occurrence mentioned in the evidence.” If we must have this type of action, I agree that the items of damage should be carefully delineated in the case of each spouse. But which admonition should be followed, the Novak decision or the Missouri approved instructions? Furthermore, so far as I have been able to discover, this court has not delineated accurately the items of damages in a consortium case and I doubt if it can be done so as to prevent double recoveries as contemplated by Novak. There is nothing in MAI-4.01 to prevent this happening.

An additional and independent reason why I cannot agree with the majority opinion is that it gratuitously purports to approve as “other rights to which a wife is entitled” allegations from the prayer of plaintiff’s petition in the case of Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 464. At pages 639 and 640 the majority opinion copies from the pleadings as set out in the statement of facts in the Bernhardt case. But their propriety as elements of damages was not adjudicated. Including them in this opinion with apparent approval is likely to be misleading.

Furthermore, the resort to this method of defining consortium demonstrates the difficulty of doing so. In an annotation on loss of consortium in 23 A.L.R.2d 1378, 1380, it is stated: “Neither the courts nor the legal text writers are able to agree on a definition of consortium, and, while the former are almost unanimously agreed that the wife has no right of action for its loss through the negligent injury of her husband by a third person, the latter, with almost equal unanimity, feel that she should have such a right of action.” Further on the same page, the annotator states that among the reasons assigned by the courts for denying a wife a right of action for negligent invasion of consortium are these: “that the action is based on the husband’s right to his wife’s services, whereas she has no corresponding right to his, and that no new rights were created by the Married Women’s Acts, and, since the wife had no such action at common law, she still has none.” Unless this court can succinctly define consortium and accurately delineate the items of damages, the trial courts and juries are going to be without the guidance to which they are entitled.

As predicted at the time the Novak opinion was adopted, litigation in this field has begun to flourish as indicated by the cases which have reached this court on appeal and otherwise. Some effort to prevent the load of the trial courts from being increased unduly is indicated by the adoption of S.Ct. Rule 66.01(c) referred to in the case of State ex rel. Keeling v. Randall, Mo., 386 S.W.2d 67.

My opinion that the creation of this new form of action is not justified and that fair and adequate compensation can be obtained under existing forms of action has not changed. Therefore, I respectfully dissent.