author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Galen Dean PEDOCKIE, Appellant.
    No. 50865.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard K. Wilson, Sp. Asst. Atty. Gen., Springfield, for respondent.
    James S. Simrall, Liberty, for appellant.
   FINCH, Judge.

This appeal is from a felony conviction of uttering a forged instrument in violation of Section 561.011, RSMo 1959, V.A. M.S. Punishment was fixed by the jury at imprisonment in the Jackson County jail for one (1) year.

The transcript discloses that defendant was represented throughout this case by an attorney of his own selection. The case was tried on April 23, 1964, and the jury’s verdict was returned on that date.

The next entry of record appearing in the transcript was the judgment entered on May 7, 1964. It reads in part as follows:

“Now on this day comes the Prosecuting Attorney, comes also the defendant, Galen Dean Pedockie in person and by attorney, James S. Simrall, and said defendant having been convicted by a jury to confinement in the Jackson County Jail for a period of one (1) year, and said defendant having filed no Motion for a new trial, and the time for filing same having passed and no extension having been granted therefor, and said defendant being informed by the Court of the verdict of the jury, heretofore returned herein, finding him guilty of Uttering a Forged Instrument and fixing his punishment at confinement in the Jackson County Jail for and during the period of One (1) year, and said defendant being asked by the Court if he has any legal cause to show why sentence should not be pronounced against him in accordance with said verdict, and said defendant having nothing further to say and showing no legal cause why sentence should not be pronounced and judgment rendered against him according to the law upon the verdict of the jury, heretofore had herein.
“Wherefore, it is ordered and adjudged by the Court that said defendant, Galen Dean Pedockie due undergo confinement in the Jackson County Jail for a period of One (1) year for said offense of Uttering a Forged Instrument; and that the State of Missouri do have and recover of and from said defendant all costs herein, and that execution issue therefor, and it is further ordered by the Court that said defendant be remanded to the custody of the Sheriff of Jackson County, Missouri, and that said Sheriff shall deliver said defendant to the custody of the proper officer in charge of said Jackson County Jail, therein to be confined as aforesaid.”

Thereafter the order fixes the amount of an appeal bond.

Up to the time of the entry of that judgment, the transcript discloses no motion for new trial filed nor any order extending the time for filing such a motion. As a matter of fact, the judgment of May 7 specifically recited that no motion for new trial had been filed and that the time for filing same had passed without any extension of time being granted.

The transcript discloses that thereafter on May 18, 1964, defendant filed a motion asking the court to enter an order nunc pro tunc, giving until May 23, 1964, for filing a motion for new trial. The grounds stated in the motion were contained in Paragraphs 2 and 3 thereof, which read as follows:

“2. That at that time defendant’s attorney had some discussion with the court in regard to extending the time for filing of a motion for a new trial and there was no definite period stated in which said motion would be filed.
“3. Defendant’s counsel was under the impression that the court would grant the usual and customary extension for thirty days after verdict which would expire on May 23, 1964.”

On that same day the trial court sustained the motion for an order nunc pro tunc but in the order entered the court stated that “it is my opinion I have no jurisdiction to make this order.”

A motion for new trial actually was filed on May 25, 1964. It never was acted upon but notice of appeal was filed on June 2, 1964, and an appeal bond was filed and approved.

Rule 27.20(a), V.A.M.R., provides that in criminal cases a motion for new trial “shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion.” It has been held repeatedly that this rule is mandatory. State v. Hooper, Mo., 364 S.W.2d 542; State v. Franklin, Mo., 379 S.W.2d 526.

It is clear that no motion for new trial was filed within ten days of the return of the verdict herein, that no order extending the time for filing same was entered within the ten-day period, and that a motion for new trial was not filed before judgment herein. In all of these respects there was not compliance with Rule 27.20(a), V.A. M.R. Furthermore, there was no basis for the entry of a nunc pro tunc order. There was no minute entry of the judge, no clerk’s entry and no paper in the file to serve as a basis therefor. Actually, the motion seeking the order nunc pro tunc merely stated that there was some discussion about extending the time, with no definite time being fixed, and that “defendant’s counsel was under the impression” that the court would grant an extension for thirty days after the verdict. This is not sufficient basis for an order nunc pro tunc. The rule was well stated in Doerschuk v. Locke, 330 Mo. 819, 51 S.W.2d 62, 64, where the court, in quoting from Ross v. Kansas City, Fort Scott & Memphis Railroad Co., 141 Mo. 390, 395, 38 S.W. 926, aff. 42 S.W. 957, said: “The question of the power and authority of a circuit court to correct its record by nunc pro tunc entries has been many times before this court; and the rule announced seems to be that, in order to justify it in so doing, the record must in some way show, either from the judge’s minutes, the clerk’s entries, or some paper in the cause, the facts authorizing such entries. No such entries can be made from the memory of the judge, nor on parol proof derived from other sources. State v. Jeffors, 64 Mo. [376] 378; Exchange National Bank v. Allen, 68 Mo. [474] 476; Belkin v. Rhodes, 76 Mo. [643] 650; Saxton v. Smith, 50 Mo. 490; Fletcher v. Coombs, 58 Mo. [430] 434; Wooldridge v. Quinn, 70 Mo. 370; Blize v. Castlio, 8 Mo.App. [290] 294; Evans v. Fisher, 26 Mo.App. [541] 546.” See also State v. Hooper, 364 S.W.2d 542, wherein the Doerschuk case is cited with approval and the court says further, 1. c. 543: “ ‘The power to make a nunc pro tunc order should be exercised cautiously and as justice requires. Its office is to speak what has been done, not to create; it cannot supply a jurisdictional defect by requiring something to be done which has not been done.’ 60 C.J.S. Motions and Orders, § 57.”

Accordingly, we disregard the motion for new trial which was filed May 25, 1964.

Pursuant to our Rule 28.02, V.A.M.R., we have reviewed matters of record and find no error. The information followed the language of the statute under which defendant was charged, the verdict was in proper form, the punishment fixed was within the limits provided by the statute, defendant was accorded allocution, and the judgment is in proper form.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Norma ROARK, Appellant, v. Arlo GUNTER, Respondent, and George R. Davis, Defendant.
    No. 50918.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Allan R. Browne, Ennis, Browne & Martin, and Edgar J. Keating, Kansas City, for appellant.
    Roy Larson, Jr., Sprinkle, Carter, Sprinkle & Larson, Kansas City, for respondent.
   STOCKARD, Commissioner.

Plaintiff, Norma Roark, brought suit against Arlo Gunter and George R. Davis for personal injuries sustained in an automobile collision involving three automobiles. The jury verdict was in favor of plaintiff and against Davis in the amount of $16,250, and against plaintiff and in favor of Gunter. The trial court subsequently ordered a remittitur in the amount of $4,000 (accepted by plaintiff) and entered a judgment in favor of plaintiff and against Davis in the amount of $12,250. Plaintiff appealed “from the judgment for the defendant Gunter,” and Davis appealed “from the order * * * overruling motion for new trial by defendant George Davis.” The appeal by Davis has not been perfected in that no brief has been filed in this court. Therefore, we are not called upon to determine the sufficiency of the notice of appeal filed by him. See, however, Walker v. Thompson, Mo., 338 S.W.2d 114; Clark v. Dubbs, Mo.App., 360 S.W.2d 288. Plaintiff asserts in her brief that jurisdiction is in this court because she “seeks a verdict of $25,000” against Gunter, the amount set forth in the prayer of her petition, and Gunter does not challenge our jurisdiction. However, we must examine sua sponte that question. Shepherd v. Department of Revenue, Mo., 370 S.W.2d 381.

Gunter and Davis were sued as joint tort-feasors, and the final judgment, if plaintiff should prevail on this appeal and on a new trial, must be in the same amount against all defendants found liable. Gardner v. Simmons, Mo., 370 S.W.2d 359, 366; Cox v. Wrinkle, Mo., 267 S.W.2d 648, 653; Davison v. Farr, Mo.App., 273 S.W.2d 500, 505. However, Davis has not perfected his appeal, if in fact he has a valid appeal, and plaintiff has not appealed from that part of the judgment in her favor and against Davis on the basis of inadequacy of the verdict. There is no contention, and none can now be made on this appeal, that the verdict against Davis is inadequate. This situation is to be distinguished from those cases where plaintiff obtained a verdict and judgment against two or more joint tort-feasors, and less than all of the defendants appealed and challenged the amount of the verdict. See Yarrington v. Lininger, Mo., 327 S.W.2d 104; Rosenkoetter v. Fleer, Mo., 155 S.W.2d 157; Gardner v. Simmons, supra; Davison v. Farr, supra. The issues pertaining to that portion of the judgment pertaining to Davis have been finally adjudicated although the judgment is held in abeyance pending the disposition of the entire case. If plaintiff should prevail on this appeal, and obtain a reversal of that portion of the judgment from which the appeal is taken, upon retrial she would be limited in the maximum permissible amount of recovery to $12,250, which is less than our jurisdictional amount.

In Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126, it was held that “A plaintiff should be permitted to hold the amount of a verdict in which there is no error. A defendant should not be given a second trial of an issue where there was no error in the first trial of that issue.” This rule should apply to the defendant as well; in this case Davis. He should be entitled to hold the verdict against him to a maximum of $12,250. Plaintiff is not entitled to a new trial on the issue of damages as to Davis when no error as to that issue is presented.

We necessarily reach the conclusion that the amount actually in dispute on this appeal cannot exceed $12,250. There is no other basis for jurisdiction in this court, and therefore the case must be and is transferred to the Kansas City Court of Appeals.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    John S. WHITE et al., Respondents, v. Floyd C. WILKS, Administrator, et al., Appellants.
    No. 51013.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Ward & Reeves, Caruthersville, for respondents.
    Sharon J. Pate, Caruthersville, for appellants.
   BARRETT, Commissioner.

The court has again quieted the title to forty acres of land in Pemiscot County in the respondents, decreed that they are entitled to the rents since January 13, 1959, and has ordered partition. The only question and determinative of all issues that may be involved is the appellants’ claim that they are entitled to a one-fifth interest in fee in the property and that the trial court and now this court on appeal should so decree. This is the second trial and appeal of this cause, White v. Wilks, Mo., 357 S.W.2d 908, and there is no substantial change in the basic facts except that it is now tacitly conceded if not irrefutably established that the title to this land was in Margaret E. Big-ham prior to her death and prior to the year 1902. Furthermore, and insofar as material here, Margaret and her husband J. M. Big-ham had five children, J. A., Paul C., Inez, Myrtle and Mary Agnes Swinney Pate. This controversy is concerned with the interest, in the circumstances of this record, of Mary Agnes, usually known as “Aunt Mamie.” As stated Margaret, wife of J. M. Bigham, died prior to the year 1902 and there was no administration upon her estate. On January 14, 1902, J. M. Bigham and his second wife, Maude, by warranty deed conveyed the forty acres to Mary Agnes Swin-ney Pate (one of the five children of J. M. and Margaret) “and unto her bodily heirs only.” It is also tacitly agreed if not indisputably established that after the execution of this deed Mary A. S. Pate was in actual possession of the forty acres or controlled it and rented it to others, collecting the rents and paying the taxes until her death in 1959. Mary A. S. Pate in a joint will devised and bequeathed all her property to her husband, Stephen S. Pate, and it is under this will that the appellants, the “administrator” of Mary’s estate and now the “administrator” of Stephen’s estate and his descendants claim a one-fifth interest in fee in the forty acres.

To quote one sentence from the appellants’ argument, this is the claim and summary statement of their position: “Defendants (Appellants) state that they believe they have shown conclusively that the title to the land involved in this litigation was in Margaret E. Bigham at the time of her death prior to 1902, and since it is admitted that there was not an administration had upon the estate of Margaret E. Bigham, the title to the land had already vested in John Albert Bigham, Paul C. Bigham, Myrtle Bigham Faris, Inez Bigham White and Mary Agnes Swinney Pate, who were the five heirs of Margaret E. Bigham, at the time, January 14, 1902, J. M. Bigham and his SECOND wife” Maude executed the deed, as indicated, to Mary and her bodily heirs. In quoting from the appellants’ argument this concluding clause has been omitted “J. M» Bigham and his SECOND wife, perpetrated the colossal fraud upon his own flesh and blood” because there is no evidence of fraud, at least in its conventional sense, and it is not believed that the inference of fraud substantially appears from the mere fact of the conveyance. In any event the respondents’ answer to the appellants’ claim is that Mary Agnes Swinney Pate took possession and assumed control of the forty acres in 1902 “to the exclusion of all of the other heirs of J. M„ Bigham and his wives,” collected the rents and profits for more than fifty years, 1902-1959, and therefore it is asserted she and her privies (the appellants) are “estopped to claim any title to this land through Mrs. Pate.”

The facts are set forth fully and completely in the former opinion, 357 S.W.2d 908, and it is not necessary to again relate them, it is sufficient to say that among other purposes the judgment was reversed and remanded to the end that “[i]f plaintiffs wished to rely upon an estoppel they should have filed a pleading containing the appropriate allegations.” It should be added, however, that the opinion upon the first appeal is now more or less the law of the case. In any event upon remand the respondents by way of reply set forth Mary’s possession, collection of “rents, income and benefits” with full knowledge of all the facts and to the exclusion of her brothers and sisters and “by her acts, conduct, declarations and statements made it well known and understood to the other heirs of J. M. Bigham as well as all other persons that she was claiming title to said real estate under the terms and conditions of the bodily heir deed aforesaid and that upon her death said real estate would revert to the other heirs of J. M. Bigham, and that she never at any time asserted an undivided one-fifth interest in fee simple in and to said real estate; that by reason of these facts each and all of the defendants (appellants) herein are estoped from making any claim whatever to said real estate or any part thereof.” In this connection and as suggested in the former opinion (“her declarations, generally, were admissible, not to establish title in anyone, but as bearing upon the nature and character of her possession”) the respondents proved by several witnesses, old-timers and others that Mary A. S. Pate repeatedly said that she could not sell or mortgage the property because her dad “gave her only a lifetime estate and upon her death >t would go back to her bodily heirs,” or “Our father was smart enough so that he fixed our land so that it would stay with the Bigham heirs.”

On the former appeal adverse possession and “ ¡stoppel by deed ’ were ruled out but the noted circumstances support a species of estoppel — quasi estoppel, so to speak — based on election, ratification, af-firmance, acceptance or principally acceptance of benefits with the consequence that it is simply unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced for a long period •of time, here over fifty years. 31 C.J.S. Estoppel §§ 107, 110(3), pp. 547, 569; 19 Am.Jur. (Estoppel) §§ 21, 64, pp. 619, 682. Support for this doctrine is found in the circumstances and pronouncements in Fox v. Windes, 127 Mo. 502, 30 S.W. 323 and the Mississippi case of Barrier v. Kelly, 82 Miss. 233, 33 So. 974, 62 L.R.A. 421. And there is some analogy in at least one of the will cases, Arrington v. McCluer, 326 Mo. 1011, 34 S.W.2d 67. In the latter case a grantee of property also disposed of by will was put to an election whether she claimed under the deed and electing to take under the will conclusively bound herself and those claiming under her. “It would be unconscionable to permit her attempted retraction by devising the property to plaintiffs, if she so intended such devise, to have effect.” 326 Mo. l. c. 1028, 34 S.W.2d l. c. 73. For these indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC., ■concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Charles SWING, Appellant.
    No. 50811.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City, Richard F. Provaznik, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    John M. Goodwin, Hocker, Goodwin & MacGreevy, St. Louis, for appellant.
   BARRETT, Commissioner.

Charles Swing, age 39, with prior felony convictions, has been found guilty of statutory rape upon Sharon, age 13, and sentenced to five years’ imprisonment. His defense was that he had only seen Sharon once and that was on an occasion when she came to his basement apartment with Marcella Brown, age 26, to get a key to Marcella’s apartment, then in the same building. He says that he came home from work about 11:30 Saturday morning, November 16, 1963, and before bathing and changing clothes sent Anthony Purham, age 8, to a neighborhood store for hamburger, but he denies that he sent Anthony with a message to Sharon to come to Marcella Brown’s apartment. Except for the one occasion he denied that Sharon was ever in his apartment and he emphatically denied that he had ever had “anything to do with Sharon.” And he says that the first knowledge he had of any such claim was when the police, Sharon and her mother appeared at his door after one o’clock as he was about to take a bath and arrested him.

But Anthony said that he “asked him did he want anything from the store” but before going to the store Swing told him to give Sharon the message that “Marcella wanted her up on the third floor.” Sharon says that about 12:30 Anthony gave her the message that Marcella wanted to see her and in response she went across the street to 4211 E. Page but learned, possibly from two men sitting on the steps, that Marcella “wasn’t there.” As she started walking away Swing appeared in the gangway “and told me they (meaning Marcella) was down in his house” and she followed him to the back but when “he told me to come down, I said, ‘No. Tell Marcella come up.’ ” But, she says, Swing put his hand over her mouth “and struggled me on down” into his basement apartment, locked the door and with force and threats proceeded to have sexual intercourse with her. Sharon grabbed her panties and immediately went home and reported the event to her mother who in turn called the police. Sharon’s claim that she had been raped was corroborated by the condition of her person and her clothes and particularly by a doctor who examined her about two o’clock and made an entry on the hospital record of “a tear of the hymen at a certain location, we call it 7:30,” blood and “smears showed positive findings of spermatozoa.” Needless to say these briefly noted circumstances support the verdict and conviction of “carnally and unlawfully knowing any female child under the age of sixteen years.” RSMo 1959, § 559.260, V.A.M.S.; State v. Ybarra, Mo., 386 S.W.2d 384.

Upon this appeal Swing’s most capable court-appointed counsel briefs four assignments of error, two of them directed to the tests of the vaginal smears and the sheets from Swing’s bed and two related points directed to the state’s attorney’s argument concerning Marcella Brown. It is only necessary to a disposition of the appeal to consider the two latter points, especially since exhibit 5, the city hospital records to which the tests seem to have been attached, has not been supplied.

The background of the argument phase of the appeal is that throughout the trial there were many references, chiefly on cross-examination, to Marcella Brown. Her husband was Claude Brown and upon this record the fact was that on the date of the offense, November 16, 1963, Claude still occupied the third-floor apartment at 4211 E. Page but Marcella Brown had moved either that day or two weeks before and the defendant claimed that Sharon, her mother and everyone else in the neighborhood knew that she had moved. Marcella was endorsed as a state’s witness but was not called. And it developed on cross-examination that Claude Brown was a friend of Swing. On cross-examination Sharon said that she knew Marcella and had been in her apartment on several occasions and of course knew the difference in the entrance to her apartment and the back-door entrance to Swing’s apartment. It was Sharon who said that she thought Marcella moved on the 16th, the inference was that she obtained that information from her mother at a later date. She said that her mother had talked to Marcella on the telephone and she gave an address on Delmar but “(t)hey said she don’t stay over there any more, so we don’t know where she is.” Repeatedly Sharon said that she did not know when Marcella moved from 4211 E. Page but “she said she was going to be there on the 16th of November” when she saw her about a week before. In conclusion she said, “Not until the day this happened did I know she moved from there. Because she came over that night, after that happened, she told me she moved. I asked her, how come she didn’t tell me she moved.” Sharon’s mother knew that Marcella had moved about a week before the 16th but she said “her husband hadn’t moved.” While the mother said that she had talked to Marcella “last month,” February, 1964, she did not know where Marcella was when the case was tried beginning March 17, 1964. She said that Marcella had called her on the telephone and it was her husband who reported that she lived at “4423 Delmar, second floor.”

In his opening argument state’s counsel made passing note of Marcella, as in referring to Anthony’s testimony that Swing told him “to tell Sharon that Marcella Brown wanted her.” Defense counsel made this argument: “Marcella Brown is on this information. Marcella Brown. They have got a lot of police officers in St. Louis, and if Mr. Schechter says ‘Find Marcella Brown,’ I’ll be willing to bet you he is going to find Marcella Brown. He shouldn’t have too much trouble, because Sharon’s mother talked to her a month ago. The last time this case was set Sharon’s mother knew where she was. I can’t find her. I’m not a particularly good investigator. I’m not armed with a badge. I can’t go out and say, ‘I’m a police officer. Where is she?’ That opens a lot of doors for you, gets a lot of things done from landlords, when you are a police officer. You walk out and say ‘I’m John Goodwin. Do you have a Marcella Brown that lives here?’ T never heard of her.’ Where is she? She could tell you a lot of things.”

Towards the close of his rather extensive closing argument state’s counsel made this argument: “Then we are told, ‘Where is Marcella Brown?’ Gentlemen, if I had the Police Department and the F.B.I. I could not find Marcella Brown, because I looked for her. I endorsed her as a witness. I wanted her testimony in this case. I looked for her, and couldn’t find her.

“You know it is a very funny thing, Claude Brown, Marcella Brown’s husband, is a friend of the defendant, and now Marcella Brown is gone.”

The court overruled defense counsel’s objection to the argument as well as his three assignments of error in his motion for a new trial based on the argument. And now defense counsel contends that the court erred in permitting state’s counsel to say that he wanted the testimony of Marcella Brown and was unsuccessful in his efforts to locate her “because such argument has no foundation in the record or in any in-, ferences which may be drawn therefrom.” In the second place, he objects that it was prejudicial to permit counsel to refer to Marcella’s absence and “to argue that her absence was attributable to the defendant, because Marcella Brown was an available witness for the State, not for the defendant.” In response to these assignments of error the state contends, first, that the prosecutor’s argument as to his attempts to locate Marcella was “retaliatory” and therefore permissible and, second, that there was no error in his referring to her absence “and to argue that her absence was attributable to the defendant.”

As to the first part of the prosecutor’s statement as to his efforts to locate Marcella and his desire to have her present as a witness, the argument was retaliatory or provoked by defense counsel and therefore was not manifestly prejudicial. State v. Wells, Mo., 305 S.W.2d 457, 460. The parties in presenting their contentions cite cases dealing with the problem of equally available witnesses and whether it is prejudicial error to charge one of the parties with failure to call an equally available witness. State v. Collins, 350 Mo. 291, 165 S.W.2d 647; State v. Beasley, 353 Mo. 392, 182 S.W.2d 541. But this is not the decisive problem and it is not necessary to a disposition of this appeal to determine whether Marcella Brown was equally available to the parties, as indicated defense counsel provoked this phase of the argument and state’s counsel had a right to retaliate in reply. For the purposes of this opinon it may be assumed that Marcella was an equally available witness but that does not solve the problem presented by this appeal.

The problem arises upon the state’s claim and the prosecutor’s plainly implied if not direct charge that the defendant had suppressed evidence and was responsible for the state’s inability to find Marcella, — “You know it is a very funny thing, Claude Brown, Marcella Brown’s husband, is a friend of the defendant, and now Marcella Brown is gone.” Of course the suppression of evidence or attempts to persuade witnesses to disappear may become important, vital issues but usually the problem arises upon the introduction of evidence or offers of proof (24B C.J.S. Criminal Law § 1915(1), pp. 52-53) but even in those instances unfounded or unsuccessful attempts to establish suppression of evidence may result in manifest prejudice. 24B C.J.S. Criminal Law § 1915(2), pp. 57-58. There was proof here that Swing knew Marcella and that he was her husband’s friend, but there was no proof or any evidence from which it was a permissible inference that he had anything to do, either directly or through someone else, with Marcella’s disappearance or unavailability and of course it is not proper for counsel to argue matters not in evidence. 23A C.J.S. Criminal Law §§ 1094 — 1095, pp. 150-156; State v. Lockhart & Dale, 188 Mo. 427, 87 S.W. 457. And while counsel may have a wide latitude in commenting on the fact that certain evidence is not offered, it is indeed improper to “charge the adversed party with the suppression and concealment of evidence unless such charge is supported by the evidence.” 88 C.J.S. Trial § 184, p. 361.

Kelsey v. Kelsey, Mo.App., 329 S.W.2d 272, was a civil case and was reversed on other grounds, the court nevertheless made this observation: “Plaintiff’s counsel made a statement to the effect that counsel for the defendant had suppressed evidence. This was without any basis in fact, and the court did sustain an objection, so no purpose would be served in discussing such arguments.” In State v. Clapper, 203 Mo. 549, 102 S.W. 560, among other objectionable remarks was the statement that “The attorney for the defendant has tampered with the witnesses. You know it, and I know it.” This is stronger language, a more direct charge than is involved here but aside from the fact that it was not supported by proof the court said that “The remarks were simply inexcusable, and ought not to have been tolerated in a court of justice.” In State v. Upton, 130 Mo.App. 316, 109 S.W. 821, a prosecution for violation of the dramshop act. the prosecutor said, “I can only get after McLain without a license, and what evidence have I in the world that McLain — McLain has now skipped from our country, and he has left, there is no doubt from the testimony, to shield this man, * * While under the facts it was said that the prosecutor had a right to comment on Upton’s failure to produce him or account for his absence “there was no evidence that McLain ‘had skipped the country,’ and the prosecuting attorney traveled outside the record in making the statement to the jury, * * * and the comments following the statement were highly prejudicial to defendant. A proper rebuke would probably have cured the error, but none was forthcoming.” In short, the argument of the state’s attorney was manifestly erroneous and prejudicial and for that reason the judgment is reversed and remanded.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Edward McENTEE, Robert J. Schaaf and Marvin A. Tomlinson, Trustees of the Kansas City, Missouri, Firemen’s Pension System and Fund, Appellants, v. James A. HALLORAN, Director of City Fire Department, Rollin F. Agard, Director of Finance, Milton F. Avis, City Treasurer, Cole Hendrix, Personnel Director, ex officio trustees of the Kansas City, Missouri, Firemen’s Pension System and Fund, Board of Trustees of Firemen’s Pension System of Kansas City, Missouri (James A. Halloran, Chairman), Respondents.
    No. 51087.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Slaughter & Brewster, Roger C. Slaughter, Kansas City, for appellants.
    Herbert C. Hoffman, City Counselor, George DeBitetto, Asst. City Counselor, John J. Cosgrove, Assoc. City Counselor, Kansas City, for respondents.
   WELBORN, Commissioner.

This is another phase of the litigation involving the Kansas City Firemen’s Pension Fund. See Marvin A. Tomlinson, et al. v. Kansas City, Missouri, et al., No. 51,086, and State ex rel. James S. Mining, et al., v. Ilus W. Davis, et al., No. 51,088, decided herewith. By this action the three elected firemen trustees of the system sought the direction of the circuit court as to the “means, methods and procedures” to he employed by the board of trustees of the system in collecting the city’s alleged indebtedness to the Firemen’s Pension Fund. Defendants’ motion for judgment on the pleadings was sustained and this appeal followed.

In this case the defendants were the city officials who were also ex officio members of the board of trustees, to-wit, director of the city fire department, director of finance, city treasurer and personnel director. The board of trustees which, by Section 19.180 of the Revised Ordinances of Kansas City, was authorized to sue and be sued in its own name was also named party defendant. The petition alleged generally the same basic facts found in Tomlinson, supra. The alleged indebtedness related to the city’s failure to contribute to the fund for the same period involved in Tomlinson. In this case the plaintiffs’ computation was that the amount of the city’s obligation as of June 1, 1960 was $432,364.52.

The petition, which was filed June 16, 1960, alleged that the minority elected trustees had advised the ex officio trustees that it was the duty of the board of trustees to collect the accumulated deficit and that the minority trustees had unsuccessfully sought to obtain a decision from the board to collect the accumulated deficit from the city. Plaintiffs alleged that, as a result of their efforts, the city did increase its payments to a 14½% rate effective May 1, 1959 and paid, on May 8, 1959, $67,212.83 on the accumulated deficit.

The petition alleged that the plaintiffs, at meetings of the board of trustees on April 19, 1960 and May 24, 1960, presented resolutions to the board of trustees for the institution of suit and the retention of counsel for such purpose, but that the resolutions failed of adoption because of the negative votes of the four defendants. Plaintiffs allege that the defendants so voted because they were afraid of losing their appointive jobs with the city.

The prayer of plaintiffs’ petition was as follows:

“WHEREFORE, plaintiffs pray this Honorable Court for instructions as to the means, methods and procedures to be employed by the defendant Board of Trustees of the Firemen’s Pension Fund, acting pursuant to its power to sue; and by the Trustees of the Firemen’s Pension System and Fund, both plaintiffs and defendants herein, to the end that the indebtedness of the city to the Fund be collected, that the Trustees exercise their duties and functions according to the laws and ordinances applicable to them, that the ultimate beneficiaries and the rights of the beneficiaries of this fund be preserved and protected and for such other and further orders and relief as may to the Court seem meet and proper.”

Answer was filed on behalf of the defendants by the city counselor of Kansas City who, under the ordinance creating the system, was the legal adviser of the board of trustees. The answer alleged generally the same matters alleged in the answer filed on behalf of the city in Tomlinson, supra. The answer further alleged that the plaintiffs’ petition presented no justiciable controversy. The defendants filed motion for judgment on the pleadings which was sustained. Judgment was entered dismissing plaintiffs’ petition.

On this appeal plaintiffs contend that the trial court erred in sustaining defendants’ motion for judgment on the pleadings. They contend that their petition stated a cause of action within the purview of the power of a court of equity to instruct trustees. A court of equity as a part of its general supervisory power over trusts has the authority to instruct and advise trustees as to their powers and duties. 5 Bogert on Trusts, 2d, Sec. 559, p. 87; Restatement of Trusts, 2d Sec. 259; 3 Scott on Trusts, 2d, Sec. 259, p. 2026; State ex rel. St. Louis Union Trust Co. v. Sartorius, 350 Mo. 46, 164 S.W.2d 356, 359(5). However, the exercise of such power does not contemplate that the court should act as legal adviser of the trustees. “The purpose of such judicial guidance of a trustee is not to provide a substitute for legal advisers, but to protect trustees in the class of cases where the advice of competent lawyers is not sufficient protection, because of the doubtful meaning of the trust instrument, or because of uncertainty as to the proper application of the law to the facts of the case.” 54 Am.Jur., Trusts, Sec. 282, p. 223. The only decree in this case would be one which would advise regarding the steps, if any, which might be taken to procure payment of a sum allegedly due the city. However, the city is not a party to this action. Its officers who are sued are sued in the capacity of ex officio trustees of the Firemen’s Pension Fund. Any advice which the court might offer as a result of this petition would be purely that and would neither settle the matter in dispute nor afford any protection to the plaintiff trustees.

In addition, although not urged by the city on this appeal, there is a further obvious consideration. In their petition plaintiffs as minority trustees allege that the action was being filed because of a threat that the claim against the city would become barred by the 5-year statute of limitations (Section 516.120, RSMo 1959, V.A. M.S.). If such was a potential threat at the time the suit was filed in 1960, it is now an actual one because, according to the plaintiffs’ computation, the statute of limitations ran from the time of the last payment on the account on May 8, 1959. More than five years from that date have now elapsed and any advice to the trustees at this time as to procedures would be entirely futile. (The plaintiffs in this case, suing as beneficiaries in Tomlinson, supra, alleged that, at a meeting of the Board of Trustees on May 4, 1964, plaintiffs “did inform the entire Board of Trustees that they had been advised by counsel that the Statute of Limitations might or would run against the claim and demand for and on account of the monies due and owing to said fund as of April 30, 1959, plus interest at the rate of 3% per annum, on May 6, 1964, that date being five years from the last payment made by defendant City to said Firemen’s Pension Fund, for and on account of said indebtedness, all as aforesaid, but that said City Trustees did vote to bring no action against defendant Kansas City, Missouri, in spite of the danger of the fund losing assets to which it is lawfully and rightfully entitled, by reason of the interposition of the Statute of Limitations of the State of Missouri, in such cases made and provided; * * Tomlinson was filed May 6, 1964. The petition in this case, as above stated, was filed June 16, 1960. Both cases were decided by the court below on September 11, 1964.)

For the foregoing reasons, the judgment of the trial court is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: PAUL VAN OSDOL, Special Commissioner.

text:
    Debra GREEN, a minor, by Lillie Jackson, her next friend, Plaintiff-Appellant, v. Samuel KAHN and Evelyn Kahn, Defendants-Respondents.
    No. 50672.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.

      Don L. Schlapprizzi, Gray & Sommers, St. Louis, for plaintiff-appellant.
    John Bardgett, Donald Gunn, Jr., Charles P. Lippert, St. Louis, for respondents.
   PAUL VAN OSDOL, Special Commissioner.

Plaintiff Debra Green had verdict and judgment for $50,000 for severe, disabling and disfiguring burns suffered in a fire in an apartment which plaintiff’s mother, Shirley Green, who perished in the fire, occupied as a tenant of defendants Samuel Kahn and Evelyn, his wife, owners of the demised premises.

After the trial, however, the trial court sustained defendants’ motions for judgment in accordance with defendants’ motion for a directed verdict filed at the close of all the evidence and, in the alternative, for a new trial. Subsequently, the trial court set aside the order sustaining the alternative motions, and again sustained defendants’ motion for judgment in accordance with defendants’ motion for a directed verdict filed at the close of all the evidence, but, in effect, overruled defendants’ alternative motion for a new trial. Plaintiff has appealed from the order and judgment for defendants.

In her petition, plaintiff had alleged, inter alia, that, on March 4, 1960, plaintiff lived with her mother, Shirley Green, at 2713 Rear Stoddard Street in St. Louis, in an apartment which premises were owned by defendants and demised to plaintiff’s mother and her family; that defendants by oral agreement in consideration for rent demised the premises including a gas cooking range which was the only means available for heating the apartment; that defendants maintained control of the range and gas line appurtenant thereto; that defendants assumed the responsibility of providing a heating system for the demised premises, but did so negligently and carelessly by furnishing an open gas range for this purpose; and that defendants were negligent in that they knew or should have known that they created a dangerous condition on the demised premises by furnishing a gas cooking range as a means to heat the premises.

Defendants filed a general denial.

Plaintiff’s case was submitted to the jury by the verdict-directing Instruction No. 3, as follows:

“The Court instructs the jury that if you find from the evidence that:
“1. On March 4, 1960, the plaintiff was a tenant of premises at 2713 Rear Stoddard which were owned by the defendants and,
“2. The defendants furnished a gas cooking range for this apartment which was intended to be used as the means of heating the plaintiff’s premises and,
“3. The defendants retained the right of control over the gas range and gas piping leading thereto and,
“4. The gas range was not a reasonably safe means of heating the apartment rented to plaintiff’s family and,
“5. That when used as a means to heat, there was danger of fire and injury resulting from the use of such gas range and,
“6. The defendants knew or in the exercise of ordinary care should have known that there was a reasonable lik[e]lihood or probability of a fire from the use of the gas range as a means of heating the apartment and that by reason thereof, the premises were not reasonably safe, if you so find, and,
“7. The defendants, in furnishing said gas range for the aforesaid purpose, failed to exercise ordinary care and were negligent, and,
“8. That such negligence, if any, directly caused or directly contributed to cause a. fire in the apartment and injury to the plaintiff, Then you are instructed that your verdict must be in favor of the plaintiff Debra Green.”

Plaintiff-appellant relies on the point that the trial court erred in sustaining defendants’ after-trial motion and in entering judgment for defendants. Plaintiff contends (1) there was substantial evidence tending to show that defendants retained control of the gas range in question; (2) defendants, landlords, owed plaintiff, their tenant, a duty to exercise ordinary care to keep the gas stove, over which they retained control, in reasonable safe condition and there was substantial evidence tending to show defendants’ conduct in furnishing the gas stove for heating was negligence amounting to a breach of their duty; and (3) there was substantial evidence tending to show that such negligence was a proximate cause of plaintiff’s injuries.

In connection with these and converse and other contentions, we think it necessary to make an extended statement of the evidence.

On March 4, 1960, defendants owned two buildings on Stoddard Street in St. Louis. The larger of these buildings, 2713-15 Stod-dard, fronted southwardly on Stoddard, and the other and smaller building, 2713-15 Rear Stoddard, also faced southwardly, the front of the smaller building being twenty-five or thirty feet north of the rear of the larger. We infer the smaller building originally was a carriage house, but subsequently was converted into an apartment building.

The rear building was of brick with flat roof, and was divided into three apartments. Plaintiff’s mother and her family of four young children, including plaintiff Debra, four years of age, occupied the easternmost apartment (2713 Rear Stoddard). This apartment was of two rooms each approximately nine feet wide, east-west, and sixteen feet long, and each had a door and a window in the south (front) end and each had a window in the north end. All four windows were covered with heavy screen wire. The outside door of the west room was east of the window at that end of that room. There was evidence that a curtain or shade was at this window, and that, in winter, a clothesline was strung from a point above this window diagonally back to and was attached to the wall at the north end of the room. The gas cooking range involved in this case had been installed with back near or against the west wall of the west room with its south side two or three (or four) feet north of the south wall and window. This west room was used as a kitchen, but there was a bathroom area in the north end of the room. The east room was the family bedroom. The kitchen and bedroom were connected by a door through the approximate center of the partition wall. The ceiling of these two rooms was approximately seven and a half feet from the floor. The outside door of the bedroom was locked with a padlock on the outside of the door. A former tenant testified that the lock “belonged to Mr. Kahn; ” but, there was testimony of witnesses for defendants that Shirley put the lock on.

Defendants had testified by deposition, and excerpts therefrom were read in evidence as admissions. Defendant Samuel had testified that when he rented the apartment he furnished the stove that was there. It was his property. All the furniture, everything was his. He furnished stoves to all three apartments. The gas ranges were the means the tenants would use to heat their apartments. “I supplied the gas. It came from the front building — a pipe from the front building to the rear.” He paid the gas bills for those tenants. This was part of the agreement. The gas stoves he provided were the only means supplied the tenants for heating the premises. The gas line from the front building supplied the gas to the three apartments in the rear. The outside door of the bedroom was locked with a padlock on the outside. “Q. If you came from the bedroom into the kitchen and went outside, would you walk by the stove? A. Yes; you got to.”

There was evidence that the pipe supplying gas to Shirley’s apartment passed through the partition wall from the “middle” apartment within which apartment there was a valve by which the gas supplying the range in Shirley’s apartment could be shut off. The gas meter was located in the front building.

A member of the bombing and arson squad of the police department of St. Louis examined the apartment, 2713 Rear Stod-dard, after the occurrence of the fire. He arrived at the scene about 11:00 p. m., March 4, and after the fire had been extinguished, the witness inspected the interior of the apartment. He saw a gas cooking range located in the southwest corner of the kitchen and observed that the fire originated in the approximate location of the range. His investigation indicated the fire was of high origin. There was severe fire damage three feet above the floor — just about the level of the top of the stove. The witness said a laboratory report recited that a plastic clothesline was found in the upper portion, at the neck of Shirley’s body. He saw no source of fire, other than the stove — he found no matches. The wallpaper was charred on the edge where it was hanging above the stove. “As I stated before, I came to the conclusion that the fire originated in the location of the stove, about three feet above the floor.” The witness also testified that he had recorded in his police report “that the cause of the fire was blankets over the stove.”

A former tenant of the apartment 2713 Rear Stoddard, testified there wasn’t any way to regulate the stove burners. When the burners were turned on the flame would just come up about three inches high. There was an agreement as to repairs. If anything went wrong in the apartment, the witness “could call Mr. Kahn”, and he would have the repairs done. Once she asked the repairman to adjust the controls of the flame. “He wasn’t able to do that.” The burners would have to be on all night in cold weather. The night of March 4, 1960, was one of the coldest nights of the winter. The witness had seen the neighbors around there hang things in their apartments to dry. Defendant Samuel had been out there when the stove was being used to heat the rooms. The witness also said Shirley smoked.

A building inspector-supervisor, in charge of the zoning section of the building division of the City, testified that an apartment building such as 2713-15 Rear Stoddard was classified as “Group H Occupancy.” There are certain minimum requirements for Group H occupancies with regard to construction as to heating. An open gas range used for heating does not fall within the minimum requirements. The stove in question was designed as a kitchen stove; but the requirements of the Code are supposed to be met if an installation is used or designed for heating purposes.

Raymond Green, ten years of age, brother of plaintiff, was the only witness who was in the apartment when the fire occurred. He had gone to bed at eight or nine o’clock that evening. The other children were in bed. The witness remembered the stove in the kitchen which stove was used to heat the apartment. He was asleep when the fire happened. The burners were on, but there was nothing hanging up in the kitchen when he went to bed. However, a witness for defendants, Carrie Mae Foster, formerly a tenant on the second floor, 2715 Stoddard, testified that she was at Shirley’s place about nine in the evening of March 4. Shirley’s children were in bed. There were wet blankets on a clothesline over the stove. The burners were on, with flames three or three and a half inches high. The blankets were hung about eighteen inches up from the flames. She left Shirley’s place around nine thirty. The day after the fire, the stove that had been in Shirley’s place was moved to and installed in the apartment of the witness. “Mr. Kahn had his men” move the stove. The witness said she had used the stove at Shirley’s place before the fire and again in her own apartment after the fire. The stove operated fine. The witness had been able to regulate the height of the flames. The witness further said defendant Samuel would be out there on the tenth of every month to collect the rent. He necessarily came to the kitchen door, and if you “looked up” you would see the clothesline strung diagonally front to rear in manner described.

A consulting engineer, witness for defendants, was familiar with the name and type of gas cooking range in question, but had not examined the particular range. It was possible, although not likely, the threads (on the shafts or stems of the valves for regulating the height of the flames of the burners) could become stripped so that the flames at once, when the valves were opened, would come on fully. The witness was shown a photograph of the stove involved herein and his attention was directed to the upright porcelain flange about eight inches high fixed at the back of the stove, behind the burners. The witness was then asked, “Q. In your opinion — is there any danger of fire from these flames catching anything in the premises, assuming the stove is three or four feet out from one wall and it has a protective flange on the back, is there any danger of fire without anything hanging over it or nothing else in there except the flames about three or three and a half inches high ? — A. It is safe that way.” And the expert also said that with wet blankets hanging over the stove flames, the blankets or blanket “is going to dry out and it will catch fire.”

From admissions, excerpts from defendants’ depositions read in evidence, the inferences are clear that defendants rented the furnished apartment at 2713 Rear Stod-dard by oral agreement by which they undertook to supply, and pay for natural gas supplied to their tenant for cooking, and for heating the apartment. Also it can reasonably be inferred that defendants undertook or assumed the duty of furnishing the means for cooking, and for heating the apartment; and the means provided consisted of a gas cooking stove with gas service piping appurtenant and attached thereto.

Referring to the petition and the verdict-directing Instruction No. 3, supra, we have seen plaintiff’s theory of defendants’ negligence was furnishing a gas cooking stove with open flame for heating; and, as we understand it, plaintiff did not and does not now specifically rely for her recovery on the evidence tending to show the valves for regulating the burners were defective.

In this case the initial and underlying question is whether there was substantial evidence that defendants retained control of the gas cooking range they had installed and provided for heating.

(1) It is the established rule that a landlord is under a duty to exercise ordinary . care to keep the portions of the premises which he retains in his control in a reasonably safe condition for the use intended and is liable in damages for personal injuries resulting from his failure to perform that duty. Peterson v. Brune, Mo.Sup., 273 S.W.2d 278; Thompson v. Paseo Manor South, Inc., Mo.App., 331 S.W.2d 1; Marentette v. Luechtefeld, Mo.App., 268 S.W.2d 44. The reading of the Thompson and Marentette cases demonstrates the stated established rule is applicable to unsafe conditions in agencies and appliances which have been reserved by the landlord for the service and use of his several tenants as a group, quite as the rule is applicable to unsafe conditions in the structural portions of the demised premises over which the landlord has retained control for the common use of the several tenants, such as, for example, the porch with defective banister in the Peterson case.

In Gladden v. Walker & Dunlop, Inc., 83 U.S.App.D.C. 224, 168 F.2d 321, 322, examined by the reviewing Kansas City Court of Appeals in the Thompson case, plaintiff had suffered an electric shock from the defective wiring of an apartment; and, in considering whether the landlord or the tenant had control of the electrical installations, it was said, in part: “It is familiar law that a landlord who keeps control over parts of an apartment house must use reasonable care for their safety. We have applied this principle to the lighting of a common entrance stairway. With regard to plumbing and heating systems, the principle extends to operative fixtures in the apartments leased to tenants and operation through them. We think the principle is equally broad with regard to the electrical system. Plumbing, heating, and electrical fixtures are not isolated either in use or maintenance. They must be maintained and used, if at all, in conjunction with the systems of which they are parts. Accordingly the tenant who uses them is usually not expected to maintain them but only to notify the landlord when they appear to be out of order. Since appellee sent an electrician in response to appellants’ original complaint, the usual expectation obviously existed here.”

In our case, there was substantial evidence and admissions that the supplying gas pipe for serving the three tenants of the three-apartment building, 2713-15 Rear Stoddard, extended from defendants’ front building where the gas meter was. This main supplying pipe, it may be inferred from the evidence, divided or branched out to the three apartments at 2713-15 Rear Stoddard, the branch gas line came through the west wall of 2713 Rear Stoddard from the “middle” apartment, 2714 Rear Stod-dard, and served the gas cooking range owned and installed by defendants as the means for cooking and heating the apartment, 2713 Rear Stoddard. There was testimony that on at least one occasion upon complaint of the tenant of 2713 Rear Stod-dard, defendant Samuel had sent repairmen to repair the stove. It was said this was the agreement. It seems clear to us that the evidence was substantial in tending to show that the main and lateral gas-service piping extending from defendants front building back to and into the three-apartment building with attached operative units or appliances, gas cooking stoves, for cooking and heating, constituted an integrated system for use by the tenants of the three-apartment building as a group and of which system defendants had reserved and retained control.

Defendants (respondents) in their brief disputed plaintiff’s assertion that the evidence was substantial in making out a jury issue of defendants’ retention of control, and some of defendants’ other contentions in their brief are so premised. Defendants have cited the case of Burton v. Rothschild, 351 Mo. 562, 173 S.W.2d 681, and they quote and seek to apply the passage from Tiffany quoted in the Burton Case (173 S.W.2d at page 682) in support of the point urged that “the use of the gas range for heating purposes was open and apparent when the premises were accepted by the tenant and this condition cannot be the basis of liability on the owner.” It is seen in the Burton case that, under the allegations of the petition, the facts were that defendant Rothschild was the owner of the premises and had leased the entire apartment building to one Roselli. The lessee Roselli and not defendant Rothschild had control of the stairway on which the sublessee-invitee plaintiff fell, in fact, the control over the entire building. It would seem that defendants in the instant case, in urging the stated point, have ignored the evidence of defendants’ retention of control. And see again the Thompson case, supra, 331 S.W.2d at page 6, whereat it was said that, “as against the landlord, the tenant’s knowledge of a defective condition in the premises over which the landlord has control, is of force only insofar as it bears upon the tenant’s contributory negligence.” In the instant case, as in the Thompson case, contributory negligence was not an issue. The Maren-tette case, supra, is also cited in support of defendants’ instant point, but we cannot see that the case aids defendants here.

Defendants also contend it is obvious the gas range was an appliance within the tenant’s control. They say, “Nothing is more obvious in this case than the fact that the exclusive use — control-—of this gas range was in the tenant.” We think defendants here are confusing the use of the gas stove in operating it as contemplated with “control,” or more properly, “right of control,” in this connection.

(2) It has been written that, ordinarily, the duties imposed by the law of negligence arise out of circumstances and are based on foreseeability or reasonable anticipation that harm or injury is a likely result of acts or omissions. Kettler v. Hampton, Mo.Sup., 365 S.W.2d 518, and cases therein cited.

We have noted the evidence that the fixture or appliance, the gas cooking range, was installed near the one outside door of an apartment of two low-ceilinged rooms with heavily screened windows and rented to be occupied as living quarters for a tenant family. And here we have no hesitancy in saying we believe it reasonably could be said such an appliance for open-flame heating in the circumstances of its installation and setting was dangerous and not reasonably safe. We suppose defendants, owners and landlords, knew the circumstances of the installation; actually, the quoted excerpts from defendant Samuel’s deposition demonstrate that he knew these facts and circumstances. And furthermore, it seems to us that an ordinarily prudent person in the exercise of ordinary care reasonably should have foreseen (in the circumstances of living in the comparatively limited space for living in the described two room apartment, with the incidence of dining, bathing, washing, playing and other activities of a tenant family — here a family consisting of an adult and four young children) the likelihood that in confining cold weather when it was contemplated the appliance with open flame would be used for heating, some flammable object, substance, or material within the household would somehow or in some manner be brought into contact with or dangerously near the open flames with resultant harm or injury by fire. Indeed, defendants in their brief filed herein have not seriously urged that the evidence was insufficient in tending to demonstrate defendants’ negligence as averred and submitted. But defendants do emphatically urge that the evidence was insufficient in tending to support a submission of the issue of proximate causation.

(3) Defendants assert the record is barren of any direct testimony as to how this fire started; nor is there any legally sufficient circumstantial evidence as to what caused the fire, and, they say, without legally sufficient proof of the proximate cause of the fire, plaintiff failed to prove an essential element of her case.

Defendants argue that the circumstances on which plaintiff relies in no sense limit the proximate cause of the fire and plaintiff’s injuries to any negligent act or omission on the part of defendants; and defendants, citing Lindsay v. Wille, Mo.Sup., 348 S.W.2d 1, say the circumstances in evidence are consistent with the possibility that the mother Shirley may have started the fire accidentally in working about the gas range, after her son Raymond went to bed.

Here we may say that plaintiff contends herein, as noted supra, there was substantial evidence that negligence of defendants as alleged and submitted was a proximate cause of plaintiff’s injuries.

In the Lindsay case, there was no substantial evidence, direct or circumstantial, of what defendant Wille did, if anything, which would have caused the revolving door to suddenly move forward. In our case, there was evidence supporting the inference of “something” the mother Shirley did, after her son Raymond and the other children had gone to bed, which, it reasonably could be inferred, at least had its part in causing the fire and injuries. Particularly, we refer to the testimony of Carrie Mae Foster who had come to Shirley’s place at nine o’clock and remained until approximately nine thirty. There were wet blankets hanging over the stove. The burners were on with flames three or three and a half inches high. The blankets were approximately eighteen inches up above the flames.

The other “possibilities” suggested by defendants that Shirley or somebody else had done something else which could have caused or had its part in causing the fire have no substantial evidentiary bases, direct or circumstantial, in the record.

Here we notice the testimony of the police officer. The member of the bombing and arson squad testified there was severe fire damage just about the level of the stove, and his testimony has the further tendency to negative a source of fire other than the open flames of the gas stove.

It is reasonable to say the conduct of the mother, a third-person actor, in hanging wet blankets over the flames and permitting them to remain there, had its substantial part in causing the fire because the natural physical sequence, it may be inferred, was the fire. As defendants' witness, the consulting engineer, said, “the blanket is going to dry out and will catch fire.” But, even so, it seems reasonably clear that, but for the flames from the open-flame range there would have been no fire and no injury.

As to the legal or proximate cause or causes — the jury reasonably could have found that negligence of defendants as charged anfl submitted had continued, and was to be considered a direct efficient and producing cause of the injury except for which negligence plaintiff would not have been injured; and that the conduct of the third-person actor, considered as an intervening cause, was but a concurring cause of the injury. As we have said supra, defendants, in the circumstances and setting there stated, in the exercise of ordinary care reasonably should have foreseen the likelihood that something flammable somehow would be brought into contact with or dangerously near the flames of the range with resultant harm or injury by fire. Although the facts and circumstances giving rise to plaintiff’s injury were unusual, nevertheless, now, after the occurrence, one could reasonably conclude plaintiff’s injury was a natural and probable consequence of defendants’ negligence as 'alleged and submitted.

In our examination of cases involving the problems of proximate causation in deciding this case we have read Dickerson v. St. Louis Public Service Company, 365 Mo. 738, 286 S.W.2d 820, particularly we have studied the court’s discussion of the problem, 286 S.W.2d at pages 825-826, in connection with the evidence introduced in that case. See also Gaines v. Property Servicing Company, Mo.Sup., 276 S.W.2d 169; Floyd v. St. Louis Public Service Co., Mo.Sup., 280 S.W.2d 74; King v. Ellis, Mo.Sup., 359 S.W.2d 685; Grimes v. Standard Oil Co., Mo.App., 370 S.W.2d 627. See also Shearman & Redfield on Negligence, Vol. 1, Rev.Ed., §§ 33-35, pp. 91-97.

We think these cases support our opinion that the evidence in our case was substantial in tending to show that defendants’ negligence as alleged and submitted was at least a proximate cause of plaintiff’s injuries. As said in the Floyd case supra, 280 S.W.2d at page 78, “Generally, it is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances leading up to the injury. The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequences of the act or omission of the defendant. The negligence of the defendant need not be the sole cause of the injury. It is sufficient that it be one of the efficient causes thereof, without which the injury would not have resulted. A party is held liable if his negligence, combined with the negligence of others, results in injury to another.”

We hold the trial court erred in sustaining defendants’ after-trial motion for a directed verdict and in entering judgment for defendants.

We now shall consider defendants’ contentions of errors of the trial court in instructing the jury which contended errors were assigned in defendants’ alternative motion for a new trial, and which motion was overruled by the trial court. See Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R.2d 904; Caddell v. Gulf, M. & O. R. Co., Mo.App., 217 S.W.2d 751.

Instruction No. 4, given at plaintiff’s instance, was as follows:

“The Court instructs the jury that in regard to paragraph Number 5 of Instruction No. 3, that it is not necessary for you to find that the defendants knew or in the exercise of ordinary care should have known of the particular manner in which a fire and injury would result from the use of the gas range in heating the apartment.
“Therefore, if you find that the use of said gas range did constitute a hazard and if you find the defendants knew or in the exercise of ordinary care should have known that there was a reasonable liklihood or probability of a fire and injury from the use of the gas range as a means of heating the apartment and that by reason thereof the premises were not reasonably safe, then plaintiff has satisfied this element of her case regardless of the fact that the fire might have resulted from unusual or peculiar circumstances.”

Defendants complain of error in giving this instruction, because its effect, they say, was to tell the jury that, if the premises were dangerous, the jury could find against defendants no matter how the fire started —even if the fire was deliberately set. They say there is no justification for giving the instruction, at least it served only to confuse and mislead the jury to a conclusion that plaintiff had a right to recover even though the jury believed the fire resulted solely from conduct of a third person.

The casual reading of Instruction No. 4 discloses the use of language not infrequently used by reviewing courts in determining the submissibility of the issues of negligence and causation. (See, for examples, Haberly v. Reardon Co., Mo.Sup., 319 S.W.2d 859, at page 863; and Gaines v. Property Servicing Company, supra, 276 S.W.2d 169 at p. 174), and which language was not intended to be utilized by a trial court in formulating instructions to the jury. We doubt that the statements of abstract principles of law or language taken from appellate-court opinions in the formulation of instructions, even in instructions cautionary in nature, or the use of language amplifying, qualifying or explaining other given instructions, do very much for a concise, correct understandable submission of a case. Implicit in these generally unnecessary, adventurous advices to the jury is the potential hazard of reversible error. See for example, Jett v. Terminal Railroad Ass’n of St. Louis, Mo.Sup., 357 S.W.2d 135.

More carefully reading Instruction No. 4 — we see the instruction refers to paragraph 5 of Instruction No. 3, plaintiff’s principal verdict-directing instruction. ■ It is noted that the paragraph 5 requires the finding that when the gas range was used for heating there was danger of fire and injury. The first paragraph of Instruction No. 4, continues by telling the jury that it is not necessary for the jury to find that defendants had actual or constructive knowledge “of the particular manner” in which a fire and injury would result from the use of the gas range in heating.

It seems to us that here in the first paragraph of Instruction No. 4 there is a transitional digression in qualifying, or in diverting substitution for paragraph 6 of Instruction No. 3. The second paragraph of Instruction No. 4 continues by “Therefore if you find” (substantially as in paragraph 6 of Instruction No. 3) and advised the jury that “then plaintiff has satisfied this element of her case regardless of the fact that the fire might have resulted from unusual or peculiar circumstances.” Is the instruction (No. 4) to be understood as advising that “this element” referred to the required finding of paragraph 5 or to the required finding of paragraph 6 of Instruction No. 3, or to the “element,” if so, of the required findings of the two paragraphs 5 and 6 of Instruction No. 3, or could not the jury believe this element, so satisfied, comprised the whole of the hypotheses of Instruction No. 3?

Plaintiff in her reply brief has said the term “this element” refers a second time to paragraph 5 of Instruction No. 3; but it is difficult to see that the paragraph (5), which merely requires a jury finding that when the range was used as a means for heating there was danger of fire, had any need for amplification by the use of appellate-court language having to do with knowledge of defendants, their negligence and result of such negligence. Of course, the jury was told the defendants’ knowledge of “the particular manner” in which a fire and injury would result from the use of the gas range in heating, was unnecessary. This well might have opened the minds of the jurors to the thought “any manner” in which the fire occurred and, with this in the minds of the jurors, when the jury saw that “this element” was satisfied “regardless of the fact that the fire” may have resulted from unusual or peculiar circumstance, the jury was likely to have long since forgotten the required findings of negligence of defendants and causation in the verdict-directing Instruction No. 3, and assume that in whatever manner the fire resulted from whatever circumstance, even “unusual or peculiar circumstances,” defendants were liable.

We hold the Instruction No. 4 was confusing and misleading and, therefore, prejudicial.

Defendants complain that Instruction No. 3, plaintiff’s principal verdict-directing instruction, was erroneous. It is not necessary for us to discuss these contentions of error. The instructions are to be carefully considered by the trial judge and counsel, and errors in instructing the jury thus avoided upon retrial.

The judgment for defendants should be reversed, and the cause remanded.

It is so ordered.

PER CURIAM.

The foregoing opinion by PAUL VAN OSDOL, Special Commissioner, is adopted as the opinion of the Court.

All of the judges concur.