text:
    Anna BOCK, Plaintiff-Appellant, v. The SHEAHAN INVESTMENT COMPANY, a Corporation, and Andrew E. Sheahan, William C. Barnett, Defendants-Respondents. William C. BARNETT, Third-Party Plaintiff-Respondent, v. TITLE INSURANCE CORPORATION OF ST. LOUIS, a Corporation, Third-Party Defendant-Respondent.
    No. 52091.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      A. G. Schumacher, Clayton, for appellant.
    Kerth, Thies & Schreiber and Dalton W. Schreiber, Clayton, for respondents.
    William C. Barnett, in pro. per.
   RUSSELL H. DOERNER, Special Commissioner.

The amended petition filed by plaintiff Anna Bock in this action contained three counts. In Count I plaintiff sought an accounting of the proceeds of a $20,000 loan made to her by defendant Sheahan Investment Company and the cancellation of the deed of trust given as security for such loan. In Count II plaintiff alleged that at the time the defendants made the loan they were aware that she would be financially unable to pay it when it came due and that a foreclosure would result in the future, for which alleged wrong she sought actual damages of $10,000 and punitive damages of $25,000. And in Count III plaintiff pleaded that defendant Barnett had induced her to give him her will, and that he had failed and refused to return it on demand. The prayer was for a judgment directing him to do so forthwith. The transcript does not show that any order for a separate trial was requested or made. All that is revealed is that the equity division of the St. Louis County Circuit Court held a trial on Counts I and III and rendered a judgment and decree adverse to plaintiff, from which she has appealed.

Plaintiff, an elderly spinster, uncertain of her exact age, was the owner of a 66 acre tract of land situated in St. Louis County. It was encumbered with a first deed of trust to secure a principal note of $16,000, together with interest thereon, due January 5, 1964, held by Adolph G. Schumacher, who had been her attorney and is her counsel in this action. Prior to the due date Schumacher requested plaintiff to pay her note when it would fall due. Plaintiff thereupon engaged defendant William C. Barnett, a lawyer, to obtain a new loan for her to retire the old one. After considerable effort on his part, and on the strength of a personal guarantee by him that the interest would be paid, defendant Sheahan Investment Company agreed to make plaintiff a new loan for $20,000 to be secured by a first deed of trust on her property. The Investment Company prepared the principal note in that sum, six interest notes for $600 each, and the deed of trust to secure them, all of which were dated and signed by plaintiff on March 16, 1964. On the same day, and in connection with the closing of the loan to plaintiff, Sheahan Investment Company paid $17,233.80 to Schumacher to retire plaintiff’s note and deed of trust held by him; 35$ to release the old deed of trust; $6.40 to record the new one; $25 to the Title Company to post the certificate of title to date; and retained $400 as its loan fee. The balance of $2,344.45 was paid to Barnett, in plaintiff’s presence, in accordance with the direction to that effect in the Investment Company’s closing statement, which statement was explained to and signed by plaintiff at the time the transaction was completed.

Barnett’s evidence showed that he had made numerous advancements on behalf of plaintiff, and that after his voluntary payment of the sum of $1440 into the registry of the court the plaintiff was actually indebted to him in the amount of approximately $2200. The testimony of plaintiff, obviously a very confused individual of uncertain memory, was extremely vague and indefinite regarding any demand for an accounting or the return of her will, which the evidence showed she had voluntarily given to Barnett for safekeeping.

As to the deed of trust, the uncontradict-ed evidence was that Barnett had purchased the certificate of title from the Title Company ; that when it prepared the certificate the Title Company had mistakenly included in the description of plaintiff’s property an adjoining strip 46 feet wide not owned by her; and that in preparing the deed of trust to secure its loan Sheahan Investment had copied the description from the certificate. The Title Company was brought into the case by a third-party petition filed by Barnett. The uncontradicted evidence further showed that Sheahan Investment had committed the loan to the Pension Fund of Title Insurance Corporation before it was ever made, and that it was delivered to the Pension Fund on March 20, 1964. Further, that when it was learned that the description was erroneous, the Pension Fund returned the loan papers to Sheahan Investment, which executed and recorded a deed of partial release releasing the 46 feet from the encumbrance of the deed of trust, and then returned the same to the Pension Fund.

The court denied plaintiff’s prayer for an accounting, pointed out that the holder of the deed of trust was not a party and denied plaintiff’s request for its surrender and cancellation, and gave defendant Barnett permission to file plaintiff’s will with the Probate Court.

In one of the assignments in her brief plaintiff contends that the court erred in attempting to enter a final judgment against plaintiff on Counts I and III for the reason that Count II, the action for damages, remains undisposed of and untried. As stated, no order for a separate trial on Counts I and III was made. Nor did the court, in its judgment and decree, specifically designate that its judgment on those counts should be deemed a final judgment for purposes of appeal within the meaning of Section 512.020 RSMo 1959, V. A.M.S. See Civil Rule 82.06, V.A.M.R. Of course, if the court’s judgment on Counts I and III is not a final judgment on those counts then plaintiff’s appeal is premature and should be dismissed. Dudeck v. Ellis, Mo., 376 S.W.2d 197; Readenour v. Motors Ins. Corp., Mo., 297 S.W.2d 554. We are also confronted with a motion by defendant Barnett to dismiss plaintiff’s appeal on the ground that her brief fails in numerous respects to comply with the requirements of Civil Rule 83.05. Our first concern, however, is with our jurisdiction to entertain this appeal, for if we are without jurisdiction it follows that we may not pass on the finality of the judgment or the motion to dismiss, much less consider the merits of the appeal. All of the parties assert and agree that we have jurisdiction because the amount involved exceeds $15,000, and because title to real estate is involved. Nevertheless, jurisdiction of an appeal cannot be conferred on the Supreme Court by the agreement or consent of the parties; and it has the duty to determine the question of its jurisdiction sua sponte. Mack v. Mack, Mo., 281 S.W.2d 872; Wartenbe v. Car-Anth Mfg. & Supply Co., Mo., 353 S.W.2d 570.

It is claimed that the amount involved is $20,000, since in Count I plaintiff sought an accounting of the proceeds of the loan to her of that sum. However, our jurisdiction is not determined by the amount of money involved but instead by the amount in dispute. Powers v. Johnson, Mo., 302 S.W.2d 899, 901. Both in her petition and in her opening statement plaintiff conceded that the sum of $17,233.80 out of the proceeds of the $20,000 loan had been properly paid to Schumacher to retire the prior loan held by him, and further conceded that an accounting was sought only for the difference. At most, therefore, the amount in dispute under Count I does not exceed $2800. Defendant Barnett also asserts that the amount in dispute exceeds the minimum required because in Count III plaintiff prayed for the return of her will, and the evidence showed that the real estate devised by that instrument was worth $100,000. But the only relief plaintiff sought was the return of the paper writing. And where the object of the suit is to obtain relief other than a money judgment, the amount in dispute for jurisdictional purposes is determined by the value in money of the relief to the plaintiff, or the loss to the defendant, should relief be granted, or vice versa, should relief be denied. Nichols v. Reorganized School Dist. No. 1 of Laclede County, Mo., 364 S.W.2d 9. Whatever may be the value of plaintiff’s land, the will itself has no intrinsic value, nor was there any economic benefit to be gained by the plaintiff or lost by the defendant arising out of the determination of its possession and control. Powers v. Johnson, supra. It is therefore obvious that the actual amount in dispute is far less than the amount necessary to vest appellate jurisdiction in this court. Vannorsdel v. Thompson, Mo., 315 S.W.2d 121.

It is likewise asserted that title to real estate is involved because in Count I plaintiff prayed for the surrender and cancellation of the deed of trust given to secure the $20,000 loan to her. Presumably the parties seek to establish jurisdiction under the void ab initio line of decisions, as distinguished from those instances in which the original validity of a deed of trust is not attacked but cancellation is sought because of some event occurring subsequent to execution. Compare Cobble v. Garrison, Mo., 219 S.W.2d 393 and Boesel v. Perry, Mo., 262 S.W.2d 636. But as was said in Fisher v. Lavelock, Mo., 282 S.W.2d 557, 560: “* * * We do not determine the question of the jurisdiction of this court solely upon the prayer for relief, particularly where such prayer is not warranted by the facts alleged in the pleading. * * * ” And where the prayer seeks relief not warranted by the facts pleaded, jurisdiction is in the court of appeals. Wood v. Gregory, Mo., 155 S.W.2d 168, 138 A.L.R. 142; Brutcher v. Fitzsimmons, 343 Mo. 547, 122 S.W.2d 881. The pleadings and the evidence conclusively show that plaintiff intended to give a valid deed of trust on the property owned by her as security for the $20,000 loan, and that the 46 foot strip was included therein as the result of the mistake made by the title company in preparing the certificate of title. As to the land she did own, the deed of trust is, therefore, a good and subsisting lien. Federal Land Bank of St. Louis v. McColgan, 332 Mo. 860, 59 S.W.2d 1052; Presnell v. Headley, 141 Mo. 187, 43 S.W. 378. If all necessary and proper parties were before the court the plaintiff might be entitled to a reformation of the instrument, so as to delete therefrom the strip not owned by her, but under the pleadings and the evidence she would not be entitled to a cancellation of the deed of trust. Fancher v. Prock, 337 Mo. 1119, 88 S.W.2d 179; Presnell v. Headley, supra. Such reformation would not affect title to real estate in the jurisdictional sense, for neither the plaintiff, the defendants, nor the holder of the deed of trust, would thereby be either divested of or acquire title to the strip of land erroneously included. Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771. Wolf v. Miravalle, Mo., 372 S.W.2d 28.

For the reasons stated the cause is transferred to the St. Louis Court of Appeals.

PER CURIAM.

The foregoing opinion by DOERNER, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Edwin Frederick ZERBAN, Appellant.
    No. 51687.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Charles M. Shaw, Clayton, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Claude W. McElwee, Jr., Special Asst. Atty. Gen., St. Louis, for respondent.
   BARRETT, Commissioner.

Upon an indictment charging manslaughter in that on June 6, 1964, Edwin Frederick (Wimpy) Zerban by reason of culpable negligence (RSMo 1959, § 559.070, V.A. M.S.) in the operation of an automobile struck and killed Gerald A. Jaeger, a jury found the appellant guilty and fixed his punishment at seven years’ imprisonment. RSMo 1959, § 559.140, V.A.M.S. Gerry Jaeger was killed in these circumstances: Shortly after midnight, 12:20 to 12:25, on June 5, 1964, Village of St. Ann policemen, Robert Rogers and Gerry Jaeger, were on traffic detail duty at the Airway Drive-in Theatre, 10600 block St. Charles Rock Road. They were setting up a portable flasher-light signal in the middle of the street across from the theatre entrance. The light had been set up “right at the center of the yellow lines” of the four-lane highway and Rogers had turned it on and it was flashing. As Rogers and Jaeger started walking toward the south side of the street they were struck by a fast-traveling black 1959 Ford Thunderbird convertible automobile and Officer Jaeger was killed. After striking the officers, “(t)hey flew up over the left side of the car,” the automobile “accelerated and continued west.” The automobile was purchased by and registered in the name of “Edwin F. Zerban.” There was no license on the vehicle on June 5th and 6th. The next afternoon at his parents’ clubhouse on the Mississippi River, near Winfield, Wimpy Zerban was arrested by highway patrol Officers Hall and Palmer as the “white male” driver of the Thunderbird convertible that had struck and killed Officer Jaeger.

While he contends that his motions for acquittal should have been sustained, it may be said at the outset, although an entirely circumstantial evidence case, that by dint of prompt and thorough police investigation and a carefully organized presentation of testimony the appellant Zerban’s guilt was established by an almost irrefragable set of circumstances. The state called thirty-two witnesses, some of them testifying to what at first blush might appear to be an insignificant circumstance but in context became a compelling fact pointing to the appellant’s guilt. Therefore, except insofar as it directly relates to the appellant’s assignments of error, it is not necessary to set forth the enormous detail necessary to demonstrate the compelling force and sufficiency of the state’s proof to sustain the conviction. Suffice to say that the state carefully retraced and accounted for Wimpy’s day in and out of Johnnie’s Lounge, Hutch’s Inn and Kraft’s Miracle Lounge from 10:30 in the morning to his driving away drunk from Johnnie’s Lounge shortly after 12 o’clock in his Thunderbird with the top down. He and “his girl” had had an “argument” and he had gone in and out of Johnnie’s Lounge two or three times before he finally drove away alone.

The second assignment in his motion for a new trial is that his motions for acquittal should have been sustained because the state’s evidence did not sustain its contention that the defendant “in operating his automobile, as described in the evidence, was operating the automobile in a culpably negligent manner.” State v. Schneiders, 345 Mo. 899, 137 S.W.2d 439. It is said in this connection that the state did not show that “the automobile was operated at an excessive rate or in a reckless manner.” It is asserted that at best the evidence shows “a moderate rate of speed or only slightly in excess of the speed limit” (thirty miles an hour near the theatre entrance) and no circumstance indicating that the driver “omitted to do any act in the operation of the automobile which would give rise to culpable negligence.” This assignment of error is so interrelated to his first assignment, perhaps dependent on it, that they may be considered as one.

At times the identification of the appellant as the driver of the automobile that struck and killed Officer Jaeger may have been inconclusive and the first assignment in his motion for a new trial is directed in part at least to this vital issue. After the appellant Zerban’s day had been accounted for and after tracing the course of the Thunderbird and after three eyewitnesses to its hitting the policemen and speeding away, the state’s twenty-first witness was Officer Edwards, a detective in the St. Louis County Police Department. Edwards said that on June 6, after Zerban had been arrested, he went to St. Ann and questioned the appellant about the occurrence in front of the Airway Drive-in Theatre. At this point defense counsel, the most experienced lawyer in St. Louis County if not the state in defending criminal causes, asked for “an interlocutory hearing” before the officer was permitted to testify. The jury was excluded and on direct examination Edwards said that the appellant had made an oral statement to him and that before it was made there were no threats or promises. On cross-examination he said that Zerban had not admitted to him that he was driving the car that struck the two police officers. He briefly related to the court and counsel what he had said and defense counsel made this specific objection: “I object to his testifying to any statements of the defendant for the reason that by his own statement, by the witness’ own testimony there is no incriminating nature to anything the defendant could have said, other than he does not know and that is inadmissible.” The court overruled the objection and Officer Edwards testified that “Mr. Zerban said that on Friday, June 5th, it had been raining and as a result of the weather conditions it was not necessary for him to go to work that day. He told us he was a construction worker. That at about 10:30 or so the morning of Friday, June 5th, he visited, he began visiting several taverns and continued to do so throughout the day and that by about 1:00 p. m. he was pretty well intoxicated. That he didn’t recall any of the events of that day after that approximate time of 1:00 p. m. in the afternoon.” But as to the automobile that struck Officers Rogers and Jaeger: “He told us that he owned a 1959 Ford Thunderbird convertible and that the automobile had been in the repair shop at the Custom Auto Body Shop on St. Charles Rock Road since about the 15th day of May and that he was due to pick up the automobile on Friday, June 5th and that he did go to the Custom Auto Body Shop and paid money for the repairs on the automobile in the amount of $27.50 but that he did not drive the car away from the repair shop that day.” In his motion for a new trial the admission of this testimony is assigned as error for the reasons (a) that the “statement did not contain any matters that were incriminating to the Defendant as to the charge of Manslaughter,” (b) that the statement “did not in any way add any links in the State’s case of culpable negligence” and (c) that the statement as testified to by the officer was “in violation of the hearsay rule.”

There is no problem here as to the voluntariness of any statement Zerban may have (made, there was no such claim or objection and, of course, despite the hearsay rule, if he made any incriminating statements, untrue denials evincing a consciousness of guilt, they would constitute admissions against interest and be admissible in evidence. State v. Harrell, Mo., 383 S.W.2d 554, 555; 22A C.J.S. Criminal Law § 730, pp. 1024-1033.

The first state’s witness was the manager of the Custom Auto Body Shop and he said that on Friday, June 5, 1964, “about 5:00 o’clock, closing time” Zerban came to the body shop “to pay the deductible and pick up the car,” a black 1959 Thunderbird convertible that he had repaired. This witness said that Zerban drove away and at that time there was no damage to the windshield, headlights or front end of the automobile. As indicated, several witnesses who knew Wimpy and his Thunderbird well saw it parked at Johnnie’s Lounge, one, a regular habitue of Johnnie’s, said that about 7:00 o’clock, at Wimpy’s request, he had gone outside and “(h)elped push the car out toward the Rock Road so he could get it headed forward.” At 11:45 a St. Ann patrolman on his way to pick up a relief officer passed Johnnie’s and he saw a 1959 black Thunderbird parked there, he, as well as others, noticed the automobile because the top was down and it was raining. In a few minutes, shortly after 12, another friend and habitue of Johnnie’s, standing at the bar and looking out a window, had seen Wimpy go outside, come back in and speak to his girl, go outside again and finally he testified, “He (Zerban) pulled out and left the premises” in the Thunderbird. The black automobile, top down, with a white male driving was next seen by Ervin Eltinge a quarter to a half mile east of the Airway Theatre as both drivers stopped almost abreast at a stop sign. State v. Carlson, 325 Mo. 698, 29 S.W.2d 135. Eltinge particularly noticed the car because “it kind of shoved me over onto the right side” (State v. Jones, 306 Mo. 437, 447, 268 S.W. 83, 86) and “(a) 11 of a sudden he seemed to be accelerating at a greater speed and he left me behind.” But as Eltinge followed and approached the theatre entrance the Thunderbird “seemed to be straddling the dividing line (yellow line) on the other side and he seemed to meet with two objects, which at that time I took for cardboard boxes, flying through the air.” Ahead of Eltinge on St. Charles Rock Road was Jeffrey Rissman, a St. Louis University student, and his date Linda. As they approached the theatre entrance, driving in the outside lane, “a block and a half away” they saw two policemen in the street (State v. Bolle, Mo., 201 S.W.2d 158, 160) and immediately in the rearview mirror Jeffrey “noticed a car (a black Thunderbird with top down) coming up fast.” As Jeffrey was “abreast of the two policemen” there was “a thud” and the officers and signal light were thrown “into the air” and the Thunderbird “accelerated and continued on west” at a speed of 50 to 60 miles an hour. The Thunderbird was next seen by Martin Po-leski, 18, as he walked home from a date. He was walking on Ashby Road (Zerban’s apartment was at 3528 Ashby Road, about one mile from Johnnie’s Lounge) and saw a Thunderbird turn off of St. Francis Street onto Ashby, top down, and the right headlight out and to Martin it “seemed beat up” for a Thunderbird.

Shortly after Wimpy left Johnnie’s Lounge the telephone rang and after a message from the barmaid Judy and Charles David and another drove to 3528 Ashby but were unable to arouse anyone. They saw Wimpy’s Thunderbird, however, “at the end of the driveway on the side of the house” and David said, “I seen it was involved in a little mishap.” They noticed that the windshield was “cracked and dirty and the front fender was banged up a little bit,” one of the headlights was broken and by that time the top was up. Judy and David returned to Johnnie’s, they had not been gone more than a few minutes, and there was Wimpy Zerban standing at the bar. When they walked in Wimpy “looked at me (David) and said he didn’t know that he had hit anything. * * * I asked how come he didn’t bring his car back” but he “didn’t say anything.” It turned out that Paul Craig, a B. & L. Cab driver, had picked Zerban up at St. Matthew and Ashby Roads and driven him to Johnnie’s. On the parking lot an acquaintance gave him change for a ten dollar bill from which he paid his cab fare. While the cab driver, Wimpy and his friend were yet on the parking lot a Bridgeton policeman appeared and “I asked him (Zerban) if he owned a car and he stated he did. * * * and his vehicle was — which was a 1951 Plymouth — was located in front of Johnnie’s Lounge. He presented some keys to this automobile, Plymouth make keys, and asked me what the trouble was and I told him two police officers were struck and injured very seriously. He said he knew of no one that owned a Thunderbird automobile and that he was very sorry the officers were hurt and hoped they would get well.” The officer went on his way and inside after a whispered hallway conference with his girl, Wimpy and Judy left in the Plymouth with Judy driving. They first went to his mother’s home in St. Charles and then to the Zerban cabin near Winfield.

This may be a circuitous approach to the first assignment of error, but in this background Officer Edwards’ testimony that Zerban had said to him “that he did not drive the car away from the repair shop that day” was certainly an “incriminating” statement and “a link in the state’s case of culpable negligence.” Edwards’ testimony in the light of the other circumstances had a direct bearing upon and tended to establish that Zerban was the driver of the Thunderbird that struck and killed Officer Jaeger. State v. Feasel, Mo., 344 S.W.2d 41. While not positively identified along the entire route, he was seen entering and driving the automobile from Johnnie’s Lounge and that particular automobile was traced almost every step of the way from Johnnie’s to his home on Ashby, just a mile from its starting point. And in all these circumstances, as stated, the state appropriately charged the appellant with manslaughter by culpable negligence (State v. Winkler, 309 Mo. 28, 273 S.W. 1040) and the proof, although circumstantial in part (State v. Simler, 350 Mo. 646, 167 S.W.2d 376), supports the jury’s finding and verdict. State v. Feger, Mo., 340 S.W.2d 716; State v. Carlson, 325 Mo. 698, 29 S.W.2d 135; State v. Sumpter, Mo., 184 S.W.2d 1005, and State v. Bolle, supra.

The other three assignments of error all relate to given Instructions 1, 4 and 5. Instruction 4 was the conventional instruction informing the jury that voluntary drunkenness was not an excuse for the commission of an offense. It is urged that the giving of this instruction was error because “at no time did the Defendant ever raise the issue of intoxication and at no time did the Defendant ever attempt to use the issue of intoxication as an excuse for any actions of Defendant.” Needless to say, the appellant may not be convicted merely because he was drunk or drinking but whether made an issue by the appellant or not, the extent of his drinking during the day and the degree of his intoxication or his sobriety were indeed relevant to the charge of manslaughter and were properly considered with all the circumstances upon the crucial and vital issue of culpable negligence. State v. Adams, 359 Mo. 845, 852, 224 S.W.2d 54, 58; 61 C.J.S. Motor Vehicles §§ 657 e, p. 766, 666 b (2), p. 789. There was considerable diversity of opinion whether Wimpy was drunk or sober. Some of his friends and companions said that he was intoxicated, some said that he was not, and some just couldn’t be certain whether he was drúnk or sober and in this category there was a police officer or two. He was a beer drinker and there were descriptions of his drinking throughout the day and evening and an empty beer bottle, probably from Hutch’s Inn, was found in the Thunderbird. He had told Officer Edwards, so Edwards said, that he was intoxicated. His girl of three and a half years, Judy, was an experienced cocktail waitress and barmaid and she said that Wimpy was intoxicated (State v. Mayabb, Mo., 316 S.W.2d 609, 612) and thus as a relevant issue to be resolved the jury could readily find the weight of the evidence. State v. Simler, 350 Mo. 1. c. 654-655, 167 S.W.2d 1. c. 382. In these circumstances, as appellant’s counsel must know, even though not made an issue by him, it was not error to give the instruction on voluntary intoxication. State v. Sawyer, Mo., 365 S.W.2d 487, 492.

Instruction 5 told the jury that “any flight” of defendant was a circumstance for their consideration. It is said that the instruction is erroneous because “the Defendant did not flee in the legal sense so as to raise a presumption of guilt and give rise to the Court’s instruction on flight.” There was nothing in the instruction or elsewhere about “a presumption.” 23A C.J.S. Criminal Law § 1185, p. 463. The circumstances have been set forth in part and it is not necessary to call specific attention to them again. In addition to the noted circumstances, two highway patrolmen went to the Zerban cabin about 11:45 on June 6 and there was no response to their knocks and calls. They returned about 1:45 in the afternoon with Mr. and Mrs. Zerban and after fifteen minutes or so were admitted and Wimpy was there and they placed him under arrest. It is not known what the assignment means by “flee in the legal sense,” the facts were that the Thunderbird struck the officers while they were in the middle of the street, it did not stop; instead it speeded up and was left on Ashby bearing telltale marks. The appellant returned to Johnnie’s and immediately left with Judy and in the early morning hours drove to the cabin on the Mississippi. From these circumstances, “flight,” under any definition (State v. Aubuchon, Mo., 394 S.W.2d 327, 335) was a reasonable, permissible inference (State v. Cochran, Mo., 366 S.W.2d 360) and it was not error to give the instruction. State v. Williams, Mo., 382 S.W.2d 597, 598; State v. Bryant, Mo., 234 S.W.2d 584, 586.

Instruction 1 was the principal instruction, following the language of the indictment but in greater detail it hypothesized in brief the place and circumstances and required a finding that the appellant Zer-ban driving the described automobile fe-loniously and with culpable negligence struck and killed Gerald A. Jaeger. The instruction defined “feloniously” and “culpable negligence” and concluded by informing the jury of the possible punishments, ranging from a fine of $100.00 to not more than ten years’ imprisonment. It is assigned that the instruction is erroneous in that it “does not properly define Manslaughter, nor does it properly define culpable negligence and it does not in any part of the instruction take any of the facts in this case relative to the operation of the Thunderbird automobile mentioned in evidence and apply those facts to Court’s Instruction No. 1.” It is said that the instruction does not embody excessive speed or “any careless or reckless driving on the part of the driver” but is a mere “abstract statement of the law as to manslaughter and culpable negligence.”

Virtually all of these objections have been urged in one way or another against similar if not identical instructions. As indicated, somewhat in the language of the indictment the instruction hypothesizes certain essential facts which if found “shall be deemed manslaughter” (RSMo 1959, § 559.070, V.A.M.S.) and that is all the technical definition of manslaughter necessary. State v. Feasel, Mo., 344 S.W.2d 1. c. 45. As previously stated, speed, intoxication and other factors were properly established and considered by the jury along with other circumstances but it was not necessary that every evidentiary fact be specifically hypothesized and found. State v. Simler, 350 Mo. 1. c. 654-656, 167 S.W.2d 1. c. 382-383. Some of these factors, like the “intent essential to guilt in every lawful conviction * * * may be inferred * * * . from facts and circumstances tending to prove a defendant was actuated by a reckless disregard of the consequences of his negligent act.” State v. Duncan, 316 S.W.2d 1. c. 617. “Every killing of a human being by * * * culpable negligence of another” (§ 559.070) is manslaughter and the instruction defined the term “culpable negligence” as “the omission on the part of a person to do some act, under given circumstances, which an ordinarily careful and prudent person would do under like circumstances, or the commission of some act, under given circumstances, which an ordinarily careful and prudent person, under like circumstances would not do, such omission or action showing on the part of such person a reckless disregard for human life or limb, by reason of which omission or action another person is directly endangered in life or bodily safety.” This definition was preceded by a definition of “feloniously” and, of course, in the brief facts previously noted constituted manslaughter. In some cases there have been separate instructions of one or more of these matters or definitions, but the instructions are read as a whole and the definition here of “culpable negligence” is in essence the same as that in State v. Duncan, Mo., 316 S.W.2d 613, and other cases. State v. Hinojosa, Mo., 242 S.W.2d 1; State v. Studebaker, 334 Mo. 471, 66 S.W.2d 877. In its essentials the instruction is a revised, down-to-date rescription of the principal instruction in State v. Winkler, (1925) 309 Mo. 28, 273 S.W. 1040, and is a sufficient submission of facts, definition and theory and is not prejudicially erroneous for any of the reasons urged here.

For the reasons indicated 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.


author: HOUSER, Commissioner.

text:
    Ralph CANTRELL and Jane Cantrell, Appellants, v. Lester McDONALD, Blanche McDonald, and Dwight Crader, Trustee, Respondents.
    No. 52130.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.

      Kenneth L. Dement, Sikeston, for appellants.
    J. Lee Purcell, Hyde, Purcell & Wilhoit, Poplar Bluff, for respondents.
   HOUSER, Commissioner.

Action in equity by Ralph Cantrell and wife, purchasers named in a written contract for the sale of farm land, against Lester McDonald and wife, the sellers, and Dwight Crader, the trustee in a deed of trust executed by purchasers. In Count I plaintiffs sought rescission and cancellation of the contract of sale and refund of $10,000 paid down on the contract. In Count II plaintiffs prayed for cancellation of the warranty deed executed by the McDonalds, cancellation of the deed of trust executed by purchasers, an injunction against foreclosure of the deed of trust, cancellation of the contract of sale, refund of the $10,000 down payment and restoration of the status quo prior to the execution of the contract.

The trial chancellor found the issues for defendants and against plaintiffs and decreed that plaintiffs take nothing. Plaintiffs have appealed, making the single point that the decree is against the evidence and the greater weight of the credible evidence and that they are entitled to rescission, refund, etc. because they clearly proved that the acts and conduct of defendants constituted a fraudulent misrepresentation of the acreage contained in the tract of land purchased by plaintiffs. They claim that the defendants represented that the tract contained 120 acres and that they were to receive 120 acres plus a house and barn and the land surrounding the house and barn, but that in fact they received only 107.9 acres. Contrarily, defendants maintain that they made no representation to the Cantrells that they were purchasing 120 acres of land; that the land described in the contract of sale was the west half of the farm, less 10.59 acres previously sold for right of way purposes, plus the 1.99 acres where the house and barn stand; that this was a sale of a parcel of land in gross and not a sale by the acre, as shown by the contract of sale and the warranty deed into which the contract was merged.

The following facts are undisputed: The McDonalds owned a part of Section 27, Township 27, Range 14 in Scott County, originally consisting of 240 acres, being the four quarter quarter sections making up the southeast quarter, and the two quarter quarter sections constituting the east half of the southwest quarter, of the section. Prior owners had deeded away 3.5 acres of the 240 acres for road purposes. In 1961 the McDonalds executed a right of way deed to the state highway commission conveying 10.59 acres off the west side of the land for the construction of Interstate Highway No. 55. Lester McDonald told Reginald Merrick, a real estate agent, that he wanted to sell “the whole thing,” 240 acres, and they entered into a listing contract “for the 240 acres.” Merrick interested Ralph Cantrell in the land but Cantrell did not want the whole tract. About a week before the contract of sale was signed Ralph Cantrell, Mrs. Cantrell, Lester McDonald and Reginald Merrick met at the farm and discussed sale of a part of the farm. The only discussion about price was the offer to sell the land for $40,000. This was a package price. There was no mention or discussion of the sale of the property at so much per acre. On Jauuary 8, 1964 the Cantrells, the McDon-alds, and Merrick met at the office of an attorney, who was employed to draw the papers. The attorney prepared and the Cantrells and McDonalds signed a contract for the sale of real estate. The property was described in the contract as follows:

“120 acres being the West Half of the following described tract: The Southeast Quarter and the East Half of the Southwest Quarter (except 10.59 acres 1-55 B-195 P-229) Section 27, Township 27, Range 14 in Scott County, Missouri* ALSO, the house and barn and the lots on which the house and barn sit, which is located in- the East Half of said tract.”

The consideration was $40,000, payable $10,000 at the time of the execution of the contract, balance ($30,000) payable in 15 annual installments of $2,000; first installment due January 1, 1965. Sellers were to convey by warranty deed to be executed at the time of the contract, placed in escrow and delivered on payment of balance of purchase price. Provision was made for examination of an abstract of title, survey of the house lot and barn lot for the purpose of obtaining a legal description, delivery of possession on or before February 1, 1964. Buyers were to receive one fourth of all U. S. Government farm allotments then held by sellers “on the above described 240 acres, and another 240 acres which Seller owns.” On January 8, 1964 the warranty deed was prepared and executed but the space for the description of the land was left blank. Cantrell made the down payment of $10,000. The Can-trells entered into possession and began, cultivating the land. The abstract was examined; title was approved; the survey of the 1.99 acre tract was made, and a metes and bounds description of the 1.99 acre tract was supplied; the surveyor ran a north and south line dividing the entire farm into two equal parts. With this information the attorney wrote the following description in the blank deed:

“All the West Half (WJ4) of the following described Tract: The Southeast Quarter (SEJ4) and the East Half (Ei/⅞) of the Southwest Quarter, except 10.59 Acres, conveyed to the State of Missouri for Right-of-way for Interstate Highway No. 55, situate in Section Numbered Twenty-seven (27), Township Numbered Twenty-seven (27) North, Range Numbered Fourteen (14) East of the Fifth (5th) Principal Meridian, in Scott County, Missouri. ALSO, A tract or parcel of land containing 1.99 acres, out of the Northwest corner of the East one-half (E[4) of the Northwest Quarter (NW(4) of the Southeast Quarter (SEJ4) of Section Numbered Twenty-seven (27), Township Numbered Twenty-seven (27) North, Range Numbered Fourteen (14) East of the Fifth (5th) Principal Meridian and described as follows: Beginning * * * [here follow the courses and distances in the metes and bounds description].”

The deed of trust is dated April 8, 1964. On that date the attorney mailed the warranty deed and the deed of trust to the recorder of deeds, and they were recorded. In 1964 Cantrell was in two automobile accidents and spent much time in hospitals. The operation of the farm was not profitable. He defaulted on the $2,000 installment due January 1, 1965. He tried unsuccessfully to refinance the loan. In February, 1965 he was informed by Herb Stephens, who wanted to buy the farm, that it contained only 108 acres. Cantrell employed counsel and demanded rescission of the contract and restoration of the down payment. Foreclosure proceedings were commenced, and this suit followed.

The hotly disputed question of fact for the trial chancellor, now before us for resolution, is whether Lester McDonald made a representation as to the amount of the acreage in the tract. Ralph Cantrell testified that at the meeting at the farm McDonald said that he would sell him a 120-acre tract of land with the house and barn and land surrounding them; that. at the attorney’s office on January 8 McDonald told him “there was a hundred and twenty acres there” and that he was buying 120 acres with the house and barn; that when, in McDonald’s presence, Herb Stephens said to Cantrell that he wanted to buy his farm of 108 acres, McDonald denied that there were less than 120 acres. Cantrell conceded that he had read the contract of sale and saw the “except 10.59 acres” language but claimed that he was not a lawyer and did not know what it meant; that at that time he did not know what “except” meant; that it did not occur to him that there might be any land taken off the west end of those forties where the highway went across and that he never had any conversation with anyone about that. He conceded, however, that at the time he entered into the contract he knew that Interstate Highway No. 55 touched the west end of the farm, and acknowledged that while farming the land during 1964 he suspected that the highway had taken some of the acreage off this farm; that it was “obvious if you looked at it”; that “anybody could see it after we got to looking at it good.”

Ralph Cantrell’s testimony that Lester McDonald made representations as to acreage is not corroborated. None of the persons (including his wife) who were present at the farm, and none of those present at the attorney’s office, supported his testimony that he was offered and that he bought a farm of 120 acres, plus house, barn and lot. Not only McDonald but also the real estate agent, who was a “good friend” of Cantrell’s, and the attorney who, acting for and paid by both parties, drew the papers, contradicted Cantrell on this subject.

McDonald testified that at the time the contract was signed he knew that the total farm acreage was only 229 acres; that he did not know how many acres Cantrell was to get; that at no time did he represent to the Cantrells that the west half of the farm, which he was selling to them, contained 120 acres; that he went with Merrick and Cantrell to the farm, drove around on it to a point an eighth of a mile from Interstate Highway No. 55; that McDonald explained to the Cantrells that there was an exception of the part the highway had taken off; that in McDonald’s presence Merrick told Cantrell that the highway had taken a portion of the west side of the farm but that land was “old coarse sand” and that this did not hurt the farm at all; that in fact it made the farm worth more money, and that Cantrell had agreed. McDonald further testified that there was no discussion at the attorney’s office about the acreage Cantrell was supposed to get. He denied telling Cantrell, in the presence of Herb Stephens, or at any other time, that there were 120 acres in the farm.

Merrick testified that they met on the farm, drove over it, came back up to the buildings, and that McDonald said to Cantrell, “Now I am going to sell you the 120 acres less what the highway has taken off plus what the buildings are sitting on”; that McDonald and Cantrell walked out into the field and McDonald showed Cantrell where the old boundary line was and approximately where the line would be, and they both agreed on a survey; that he pointed out to Cantrell the benefit of the blacktop road adjoining the property on the north and told Cantrell that the part that the highway had taken off was actually a benefit to him.

The attorney testified as follows: The parties met at his law office and the Mc-Donalds came in saying “We have a 240-acre farm. We are going to sell 120 acres and the roadway is on that side.” The attorney knew and was informed that there was a roadway on the north and a highway on the west side and that the description should exclude the highway. The parties had a general discussion before the papers were drawn but there was no discussion as to the number of acres in the tract being sold. The attorney was not representing either side but was acting as agent of both sides to do what he was instructed to do. He was told by Cantrell, McDonald or Merrick (he could not remember by whom) that the intention was to convey half of the farm less the right of way. There was no disagreement about the acreage. “There was never at any time any promise made to anybody of 120 acres”; no representation that the purchasers were to receive 120 acres, and no indication that “the people” thought they were buying or paying for 120 acres. What was involved in this transaction was 120 acres (“half of this 240 acres”) less the highway exception of 10.59 acres. The only way the attorney knew to prepare the description was to describe the west half of the 240 acres less the exception for right of way purposes; “the six forties were going to be split right down the middle.” He must have obtained the figure 10.59 from an old deed or papers brought to the office by one of the parties. At the time of closing it was agreed that instead of placing the warranty deed in escrow the deed would be recorded and then mailed to the Cantrells, and that the Cantrells would give a deed of trust back to the Mc-Donalds, and that this was done. (Ralph Cantrell denied that a warranty deed was ever delivered to or received by him.)

The surveyor testified that 107.9 acres of land were described in the contract. He arrived at this figure by the following computation: 120 acres plus 1.99 acres, less exceptions totaling 14.09 acres. The 14.09 acres include 10.59 acres conveyed for highway and 3.50 acres conveyed for road purposes.

The testimony of seller, the attorney and the real estate agent, is more credible and satisfying and on this basis we find that McDonald did not represent that the tract contained 120 acres and did not represent that the Cantrells were to receive 120 acres plus house and barn and surrounding land; that prior to signing the contract Ralph Cantrell knew that the highway and the road had taken land off the west and north sides of the farm, and that for $40,000 he was getting one half the remaining acreage in the west 120, plus the house and barn and the land surrounding them.

Appellants further contend that even if we discount the oral testimony concerning this representation, on the ground that memories fade, or that parties tend to favor themselves in giving testimony, or are impeached, nevertheless the contract of sale in and of itself constitutes undeniable, unimpeachable and undisputed evidence of a representation by sellers that this land contained 120 acres and that the Cantrells were to receive 120 acres of land. This is said to be so because the words “120 acres” prefacing the description of the land constitute a covenant as to acreage.

Under accepted rules of construction we cannot construe these words as a covenant or warranty of acreage. In the construction of contracts for the sale of real estate, as in the construction of deeds, “The mention of quantity of acres, after a certain description of the subject by metes and bounds, or by other known specification, is but a matter of description, and does not amount to any covenant, or afford ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the given amount.” 4 Kent’s Commentaries (14th ed.) p. 564; Wood v. Murphy, 47 Mo.App. 539, 543, 544. Land in this state is laid off into townships, sections and quarter sections. The description of the main body of land in this contract is definite and certain. It is a description by reference to quarter sections, with a well-defined exception. Such a description is as definite as a description by metes and bounds. “It is an accepted rule of construction that metes and bounds in a description control a call therein for acreage.” Baker v. Clay, 101 Mo. 553, 558, 14 S.W. 734, 735; Ware v. Johnson, 66 Mo. 662, 668; Campbell v. Johnson, 44 Mo. 247, 250. Likewise, references to sections and portions of sections control a call for acreage. The words “120 acres” constitute mere descriptive matter, and not a covenant of acreage. The descriptions of the main body of land, both in contract and deed, plainly show that it was the intention of the parties to sell and convey one half of a tract definitely described by reference to a quarter section and half of a quarter section, with an exception of specified acreage. We cite the following cases as respected authority construing similar acreage references in similar legal descriptions as descriptive matter merely, and not covenants, and not of the essence of the contract. Wood v. Murphy, supra; Anthony v. Hudson, 131 Ky. 185, 114 S.W. 782; Hays v. Hays, 190 Ark. 751, 81 S.W.2d 926; Security Loan & Abstract Co. v. Marchman, 41 Ga.App. 808, 154 S.E. 822; Pearson v. Heard, 135 Ala. 348, 33 So. 673; O’Shea v. Hampton, 127 Neb. 60, 254 N. W. 670.

It is clear to us that this was a sale in gross by the tract, and not a sale by the acre. Cases, supra. The fact that the consideration is fixed at a lump sum tends to show this. 1 A.L.R.2d 28 § 13, note 8. Nothing in either the contract or the deed indicates the contrary. That fact is clinched by the testimony of Ralph Cantrell that it was a package purchase for $40,000 and that in their negotiations “no mention was made of how much per acre.”

“Whenever it appears by definite boundaries, * * * that the statement of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no inter-mixture of fraud in the case.” Kent’s Commentaries, supra, ibidem.

Since there was no representation as to the acreage there can be no finding of actual fraud, because a false representation is the first requisite of a fraud case. This eliminates the necessity of addressing ourselves to the remainder of appellants’ brief, in which an effort is made to demonstrate that each and every other element of fraud was established in this case.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    Edith BAUSER, Plaintiff-Appellant, v. Helen DeNOBLE, Defendant-Respondent.
    No. 51897.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Thaine Q. Blumer, Blumer & Wright, Kansas City, for appellant.
    E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

This is an action for damages wherein plaintiff asked for $50,000 to compensate her for injuries sustained in a collision of two cars. Plaintiff Edith Bauser alleged that defendant Helen DeNoble while driving her car north on U. S. Highway 69 collided with a car in which plaintiff was riding at the intersection of U. S. Highway 69 and Highway 152 near Liberty, Missouri. Defendant filed an answer consisting of a general denial and alleging contributory negligence. A trial resulted in a jury verdict for the defendant. Plaintiff’s motion for a new trial was overruled and an appeal was taken from a judgment for the defendant.

We shall hereinafter refer to the parties as they appeared in the court below.

Plaintiff briefed three points. They are: (a) that the trial court erred in giving instruction No. 6, requested by the defendant, submitting the issue of the negligence of plaintiff’s husband, the driver of the car in which she was riding; (b) that the trial court erred in giving instruction No. 7, at defendant’s request, on the subject of contributory negligence; and (c) that the trial court erred in refusing to admit evidence of the records of plaintiff’s physician offered through his secretary.

The evidence disclosed that the collision in question occurred on the afternoon of September 25, 1959. Plaintiff and her husband were driving west in a Buick car on Highway 152, a two-lane roadway. Plaintiff’s husband was the driver of the car. Defendant was driving her car, a Pontiac, north on U. S. Highway 69, a four-lane roadway with a median strip dividing the dual north and south lanes.

Lawrence C. Bauser, plaintiff’s husband, testified by deposition that as he approached Highway 69, a car in front of him stopped at a stop sign about 15 feet east of Highway 69; that he, Lawrence C. Bauser, stopped and after the car in front moved forward, he then stopped at the stop sign; that he proceeded to the edge of Highway 69 and stopped a third time; that blinker lights hanging over the center of the intersection required traffic on Highway 152 to stop. Mr. Bauser stated that when he stopped at the stop sign, he saw defendant’s car coming north on Highway 69 then at a distance of two to three hundred yards away; that when he stopped at the edge of Highway 69, he noticed defendant’s car about 200 feet to the south traveling at a speed of 100 miles per hour; that defendant’s car swerved to the east onto Highway 152, striking his car at the left front; that his car, the Buick, came to rest on the east shoulder of Highway 69, entirely off the pavement.

Defendant testified that as she approached the intersection she saw two cars on Highway 152; that one crossed the intersection ahead of her; that the second car, which was the Bauser car, came on right in front of her car and all she could do was hit the horn and apply the brakes; that she turned left, to the west, to avoid striking the Bauser car at the front seat, where the driver and plaintiff were riding. She testified that the speed of her car was about 50 miles per hour. Defendant’s car came to rest in the median strip west of the northbound lanes of Highway 69.

Police officers testified that when they arrived at the intersection, within a few minutes after the collision, the Bauser car was in the east lane of the northbound lanes of Highway 69; that defendant’s car was in the median strip; that they found debris at about the center of the two northbound lanes of Highway 69. They further testified that skid marks could be seen on Highway 69 extending from the debris southward on Highway 69 and skid marks were on Highway 152 extending a few feet onto Highway 69.

It is obvious that the evidence presented a question of fact for a jury to determine.

Plaintiff’s case was submitted to the jury by the following instruction (No. 2) :

“Your verdict must be for plaintiff if you believe:
First, defendant
drove off of 69 highway onto 152 into the plaintiff, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence,
plaintiff sustained damage.
unless you believe plaintiff is not entitled to recover by reason of instruction Number 6

Instruction No. 6, of which plaintiff complains, is as follows:

“Your verdict must be for the defendant whether or not defendant was negligent if you believe:
First, Lawrence Bauser either:
failed to keep a careful lookout, or
failed to yield the right of way; and
Second, Lawrence Bauser’s conduct, in any one or more of the respects submitted in Paragraph First was negligent; and
Third, such negligence of Lawrence Bauser directly caused or directly contributed to cause any damage plaintiff may have sustained.”

Plaintiff says that instruction No. 6 should not have been given because there was no evidence of a failure to keep a careful lookout. It is contended that plaintiff and her husband each testified they saw defendant’s car when it was 800 to 1000 feet to the south of the intersection and that no witness testified to the contrary.

To determine the questions presented, we must consider the evidence favorable to the defendant. This evidence tended to prove that Bauser drove his car into the intersection and into the path of defendant’s car at a time when defendant could not have stopped her car or reduced the speed thereof in time to have avoided a collision. This evidence justified a finding that Mr. Bauser did not look or he would not have driven into the path of an oncoming car traveling, as Mr. Bauser stated, at 100 miles per hour. Branscum v. Glaser, Mo., 234 S.W.2d 626,1. c. 627 (1-3), and cases there cited.

Plaintiff cited the case of Baker v. Kirby, Mo., 396 S.W.2d 605. In that case, two cars met on a gravel road. The drivers could not see each other because of a curve in the road and brush. When the cars were only a short distance apart and came within view, one of the cars slid in the gravel over the center of the roadway and collided with the other car. The opinion distinguished that case from cases similar to the one now before us. Note what the court said, 396 S.W.2d 1. c. 608: “Thus again the case and circumstances are unlike those relied on by the appellant, rear-end collisions, attempting to pass left turning vehicles and intersectional collisions * * * ”, citing cases. (Our emphasis.)

Plaintiff says that a failure to keep a lookout, even if proven, was not the cause of the collision. We are of the opinion that a jury could infer from the evidence that if Mr. Bauser had kept a lookout for cars on Highway 69, he would not have driven into the intersection and that the failure to keep a lookout was a contributing cause of the collision. We rule that the trial court did not err in giving instruction No. 6.

Plaintiff contends that instruction No. 7 should not have been given. The particular objection made is with reference to a sentence reading “The burden is upon the defendant to cause you to believe the propositions necessary to support her defense that plaintiff was contributorily negligent as submitted in Instruction 6 .” (Emphasis supplied.) It is contended that the word “plaintiff” referred to Mrs. Bauser ; that in place of plaintiff the instruction should have read in substance that plaintiff’s husband Lawrence Bauser was con-tributorily negligent. It is claimed that the instruction was misleading and confusing to the jury. It may be noted that instruction No. 7 referred the jury to instruction No. 6 which specifically directed the jury to the question of whether Lawrence Bauser failed to keep a careful lookout. When read together, the two instructions left no room for confusion or misunderstanding. Layton v. Palmer, Mo., 309 S.W.2d 561, L c. 570 (20), 66 A.L.R.2d 1242. It is conceded, and rightly so, that in the circumstances the negligence of Lawrence Bauser, plaintiff’s husband, may be imputed to plaintiff. 65A C.J.S. Negligence §§ 158 and 159, pp. 196-201, and 65A C.J.S. § 168(12), p. 246.

Plaintiff introduced substantial evidence that she was injured seriously as a result of the collision. Defendant’s evidence did not show otherwise. Plaintiff offered to introduce evidence of certain medical records of the treatment of plaintiff by Dr. Pipkin. The secretary of the doctor was called as a witness to identify the records. Plaintiff contends the records should have been admitted under the Uniform Business Records as Evidence Law. If rejecting this evidence was error, it could not have affected the verdict which was for the defendant. Russell v. Kotsch, Mo., 336 S.W.2d 405; Nash v. Plaza Electric, Inc., Mo., 363 S.W.2d 637, 1. c. 642(7).

We have not found any prejudicial error in the record, hence the judgment of the trial court should be and it is hereby affirmed.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Orville Hubert LINDER, Appellant.
    No. 52276.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Glen C. Schomburg, Sp. Asst. Atty. Gen., Kirkwood, for respondent.
   BARRETT, Commissioner.

Charged with burglary in the second degree (RSMo 1959, § 560.070, V.A.M.S.) and a prior felony conviction (RSMo 1959, § 556.280, V.A.M.S.), a jury found the appellant Orville Linder guilty as charged and, after a hearing on allocution, the court fixed his punishment at seven years’ imprisonment.

His first point is that the court erred in permitting the state to amend the information “after trial commenced to change the allegation that appellant had previously been convicted in Jackson County to an allegation that he had been previously convicted in Polk County.” In short, in charging a prior felony conviction of grand stealing the state had alleged that the conviction was in Jackson County, the fact was that this particular conviction was in Polk County, not Jackson, and accordingly the state asked and was given permission to amend the information by striking out the word “Jackson” and interlining the word “Polk.” There would be no point to elaborating on his claim that this amendment violated both his constitutional right to know and “demand the nature and cause of the accusation” (Const.Mo.1945, Art. 1, § 18(a), V.A.M.S.) and the rule and statute permitting amendments “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Criminal Rule 24.02, V.A.M. R.; RSMo 1959, § 545.290, V.A.M.S., and see RSMo 1959, § 545.030, V.A.M.S. On more than one occasion it has been held that the state may amend an information and for the first time allege a prior felony conviction, State v. Wilson, Mo., 349 S.W.2d 934; State v. Ninemires, Mo., 306 S.W.2d 527. And as long ago as 1922, upon a charge of shooting craps, even after the jury had been empanelled and a witness sworn, it was held not to be erroneous or prejudicial to permit an amendment to the information inserting the name of the county. State v. Wright, Mo.App., 236 S.W. 395; State v. Flores, 332 Mo. 74, 55 S.W.2d 953. In addition when against the advice of his lawyer the appellant insisted on testifying he admitted five prior felony convictions in at least three states, he wanted to “stipulate I have got a bad record. I have done a lot of time, but I can tell the truth.”

The appellant’s second point is that in violation of his rights under the Fourteenth Amendment and Art. 1, Sec. 10, Constitution of Missouri, his “conviction was based in part upon the admission in evidence of alleged oral statements made by appellant to police officers, said statements having been coerced, involuntary and the results of threats, therefore requiring a reversal of said conviction.” (Emphasis supplied, particularly for future reference.)

This claim of coerced “statements” and invasion of constitutional safeguards is made in the face of these incontrovertible facts and circumstances: Edward Morgan is the principal owner of the Morgan Supply Company, a wholesaler in plumbing supplies, 903-905 Truman Road and 1509-15 Campbell Street. He had been on a month’s vacation and on September 19, 1964, a day when the business was closed, he went “down there Saturday morning, quiet, and was trying to clean up my work.” Because of prior burglaries an “electronic eye” burglar system, with an alarm on the outside of the building, had been installed. While Morgan was working in his second-floor office, about 4:30 in the afternoon, the burglar “siren” went off. His desk was near the stairwell and when he looked down the stairway he “saw this man (the appellant Linder) down at the bottom of the stairway in the electric eye.” And he said “without giving it a second thought, I run downstairs and grabbed him, and pulled him away from the electric eye and twisted his arm up behind his back, and I marched him upstairs and called the police.” And, “while I had his arm twisted behind his back there, I asked him then what he was doing in the building, and he said he was in there to open the doors to let somebody in with a truck to take some material out of there.”

The first officers to arrive were two patrolmen, Mr. Morgan had Linder “in custody” so they handcuffed him and without investigating “placed him in the wagon.” Officer Reed of the burglary unit arrived in a few minutes, “introduced myself to the defendant,” took him out of the paddy wagon and, before anything and all else, “told him that since this case would probably be going to court he didn’t have to tell me anything about what had happened or what he did unless he wanted to, and it was his right to a lawyer if he so desired. * * * I told him that it was his right to call a lawyer, and that he didn’t have to tell me anything, and that since this case was going to court, anything he told me could be used up there against him. I could use it against him.”

They returned to the building and Officer Reed continued, all without a single objection by counsel experienced in criminal law, “I said there is a few things I would like to know, especially how you got in here, into the place, and what you intended to do. He told me that he first started to go through the window, the back window off the roof to get into the place, but there was iron bars across the window, and he decided this would be a little too hard so he tore a hole in the boards next to the window; that he went in and dropped down onto some pipes, then went over and pried a bar off the inside of the front door and turned the snap-type lock on the inside of the door to allow it to be opened from the outside. Then he went over to the overhead door just north of this front door, and as he was standing just inside the door he set off the alarm, which is a siren, a siren-type alarm outside. And he told me that there was — his partner by the name of Biddie, he didn’t know his full name. * * * He said that his partner had dropped him off there, and that his partner was supposed to take his car to the area of 30th and Harrison and pick up a truck and bring it back to 1509 Campbell, and they were going to load the truck with the materials, and that they were supposed to split whatever they got for these materials.”

Prior to Saturday the doors and windows had been locked and the building made secure, and investigation revealed that where the back of the building dropped “down to a one-story building” there was an “up-and-down place along the back side of the building approximately four feet high, and there had been a hole torn out of this.” Mr. Morgan described the hole as “three foot by three foot,” large enough to admit a person, and as to Linder, he said, “I don’t know how he come in, except there was a hole in the roof.” Officer Reed said that Linder took him around to the south side of the building and pointed out how he had climbed up a pipe onto the one-story roof and then through the hole which he described as sixteen by sixteen inches. The police found a pinch bar, “strange” to Morgan, near the front of the building.

Upon this evidence the state rested its case. Only Officer Reed testified to any “statements” or oral admissions by Linder, there was no written statement and none was requested. The only patrolman who testified, Hannah, did not testify to any incriminating statements by Linder and there was no indication in defense counsel’s cross-examination that there was to be a claim of threats or of coerced “admissions” or “statements.” On cross-examination Officer Reed again said that he advised Linder of his right to remain silent and to counsel. He said that Linder was already under arrest and handcuffed when he arrived, he did not remove the handcuffs and was there and talked to him 30 to 45 minutes. The only questions germane to the claim of coerced statements were these:

“Q. So his hands were like this (indicating), handcuffed in back of him?
“A. Yes.
“Q. Did any other officers accompany you and this defendant on his tour of showing you around ?
“A. The other officers were in and around the building.
“Q. But they were not with you?
“A. No, they didn’t go with me, specifically.
“Q. In your presence, Detective Reed, were any threats of violence or anything else made against this defendant if he didn’t confess?
“A. No.
“Q. You, of course, didn’t make any threats of this kind, did you? A. No.”

There was no request to examine Officer Reed preliminarily to inquire into the circumstances in which he conducted his investigation. These were the only questions or other indication that there was to be a claim of coerced “statements.” As stated, throughout the trial there was no objection to Reed’s testifying to Linder’s oral statements or admissions and except as may be inferred from the cross-examination no claim of coercion or improper invasion of the right to remain silent. In short, up to this point in the trial, that is at the conclusion of the state’s evidence, there was no direct claim by appellant’s counsel of coerced admissions or the invasion of any constitutional right and there was no evidence from which it was a fair or permissible inference that there had been any threats or coercion, either physical or psychological, that would require the court as a preliminary matter to consider and determine whether any statements Linder may have made to Reed were voluntary or involuntary.

In support of his assignment of error with respect to involuntary “oral statements” the appellant cites and relies upon State v. Williams, Mo., 369 S.W.2d 408; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; and State v. Beasley, Mo., 404 S.W.2d 689. And the following should be added to this list of cases: Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908;. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and more recently Sims v. State of Georgia (January 1967) 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 and O’Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189. And it is assumed for the purposes of this opinion, whether they operate retroactively or prospectively, that these cases are binding and applicable if the evidence and reasonably permissible inferences support a claim of coerced statements and therefore demand at some stage of the trial a finding by the court whether in the totality of the circumstances (State v. Beasley, supra) the “custodial interrogation” (Miranda v. State of Arizona, supra) infringed constitutional safeguards.

As indicated, Linder against the advice of his counsel insisted on testifying because, as he volunteered, “these people have not heard my story, that is why I agreed for you to bring all this stuff out. We want to hear the facts in the case, I think. That is the only way we are going to get them.” And so on direct examination he said that he was present in the Morgan Roofing Company as Mr. Morgan testified, but he explained: “I had just been relieved from Kansas State Penitentiary a short time before that. I was busted. I needed money. A guy offered me work at fifteen bucks a load — excuse me. * * * To help him move his place to another place over the weekend. He said he didn’t want his workers coming in on Monday and him having to pay somebody show-up time and so forth. * * * All I knew the man was called Bid-die.” And he says, “I got in the truck” and he drove down in the alley “and he opened the door, and he said 'Go around in behind the counter’ * * * and he said ‘punch the button for the overhead door, and I will back the truck in at the loading dock.’ ” And he testified that while he was at the door “this gentleman that gave testimony here, Mr. Morgan, walked down the stairs, and he said, ‘What are you doing in here ?’ ” Whereupon Linder told Mr. Morgan about his employment by Biddie, who apparently vanished.

The only possible way to fully appreciate Linder’s claim of unconstitutional threats and coercion is to quote at length from his testimony, all, it must be remembered, in the argot of penal institutions. On direct examination he said that he walked up the stairs with Morgan (he denied that Morgan twisted his arm and forced him) who called the police, and then he said:

“After the police got there, there was some big officer in uniform (Hannah, no doubt), he put handcuffs on me, and he sat down on them real tight. Put them behind my back, and cut all my circulation off.
“Q. What do you mean, ‘sat down on them?’
“A. I mean he put his knee on the cuffs and put them up as far as he could. It is a pretty miserable predicament. You ought to try it sometime.
“Q.. Then what happened?
“A. We stood around there about 35 to 40 minutes, I guess, before anybody decided to take me to the station. In the meantime, one says, ‘Let’s take this guy for a walk back through here and leave him.’ He says, ‘He is caught inside anyway.’ Another one says, ‘Maybe we ought to take him to the river.’ Well, I happen to know what that means, and I know it is something I don’t want to experience. And he says, ‘Now, are you right for this thing or aren’t you ?’ I said, T am it, just put me down, I am guilty.’ I says, ‘Just get me on down there, I don’t want to go to the river.’
“Q. Is that why you told them that you were good for it?
“A. That is the reason I told them I was good for it. I don’t know the man named Biddie, I don’t know where the man come from; I don’t know how the place got there, hut I know I am in a little old four by four, and I am it. And I was told they don’t even need a statement, they got all they want. They got me inside.” (Emphasis supplied.)

While Linder implies that Officer Hannah and his partner threatened him with the river, it will be noted that the admissions or “statements” testified to by him were not the same admissions testified to by Officer Reed, only Linder himself said, “I am it, just put me down, I am guilty.”

As to Officer Reed, whose testimony need not be repeated, these are the questions and answers, all on Linder’s cross-examination :

“Q. What Detective Reed told this jury here is not correct?
“A. Not in its entirety.
“Q. All right.
“A. Detective Reed told his side of the story the way he seen it. I did not go into detail for 45 minutes to an hour and tell Detective Reed what Detective Reed quoted verbatim here. I told Detective Reed, ‘All right, you got me, I am it. All right. So the place is kicked in, I am the guy that is right for it. I don’t want to go to the river. I don’t want to get shot in the head — ’
“Q. Detective Reed didn’t—
“A. I have been told by almost every policeman over there that if I am ever caught inside, I am dead, and they mean it.
“Q. Did Detective Reed tell you he was going to take you to the river ?
“A. No, I don’t think Detective Reed did. Detective Reed stated on this witness stand he had informed me of my rights, and he did not.
“Q. Well, let’s get back to what you told Detective Reed.
“A. I just told him, T am right for it.’
“Q. Did you tell him that you made that hole on the second story wall ?
“A. I told you what I told him. I said, T am right for it.’ Now, maybe he assumes that I told him I made that hole. I did not.
“Q. My question is, did you tell him that you made that hole ?
“A. Not in those words, no.
“Q. What words did you tell him you made the hole ?
“A. I just told him, T am right for the beef.’ They got me charged with, burglary. I don’t want to go to the river.
“Q. His testimony is that you told him that you made the hole, you went in the building, and that you were opening the front door to let a man come in with the truck. Is that what you told him?
“A. I told him that the man put me in the door and sent me around to open that door, that overhead door, so he could back the truck, in there. That is what I told Detective Reed. Then when I was pinned down .and threatened, I said, ‘Okay, I am right for the beef. Take me to jail.’
“Q. Did Detective Reed threaten you?
“A. I said no, Detective Reed didn’t threaten me, personally.
“Q. Was he there when somebody else did?
“A. He showed up later. There was two other people there. Then a colored man on the paddy wagon came along and slackened the handcuffs on me after my hands swelled up and turned purple.”
******
“Q. What did Lieutenant Reed do to you ? Did he physically assault you ?
“A. No, he did not.
“Q. Did he mess with your handcuffs ?
“A. He didn’t do a thing with them. He took me back out of the paddy wagon and he walked me around there. He walked me around through the building all right.
“Q. You say he did not threaten you?
“A. No, Detective Reed didn’t threaten me.
“Q. So when you were talking with Detective Reed with no form of threat or violence, you admitted that you were right for it, is that right?
“A. I made the statement for all involved. The other two policemen were standing there, and I said, ‘Okay, I am right for it. Take me to jail. I don’t want to go to that river.’”

Mindful that if one confession, statement or admission is “simply part(s) of one continuous process” in which several confessions are obtained, all are invalid (Leyra v. Denno, 347 U.S. 556, 560, 74 S.Ct. 716, 718, 98 L.Ed. 948, 952), Linder’s own testimony makes Jackson v. Denno and other cases, state and federal, relied on by him inapplicable. Carefully considered his testimony is hardly a straight-faced denial of anything that Officer Reed testified to, in fact he all but admitted the truth of everything Reed said. State v. Brown, Mo., 404 S.W.2d 179, 182. There is certainly in his testimony nothing that would seriously refute the essence of the substantive offense of burglary. In fact his testimony is at least a tacit affirmation of everything of substance that Reed said and was corroborative of the indisputable fact, “They got me inside.” Without further analysis and demonstration, in the language of Johnson v. State of New Jersey, by the time any law enforcement officers appeared on the scene, Linder’s was not an “unsolved crime” and any “custodial investigation” was in fact superfluous. By any test, including the “totality of the circumstances,” this was not an “unsolved crime” and in no event has the “very integrity of the fact-finding process” been averted nor is there the slightest “clear danger of convicting the innocent.” Johnson v. State of New Jersey, 384 U.S. 1. c. 728, 86 S.Ct. 1. c. 1778, 16 L.Ed.2d 1. c. 889; Miranda v. State of Arizona, 384 U.S. 1. c. 479, 86 S.Ct. 1. c. 1630, 16 L.Ed.2d 1. c. 726; State v. Beasley, Mo., 404 S.W.2d 1. c. 692; State v. Rapp, Mo., 412 S.W.2d 120; State v. Craig, Mo., 406 S.W.2d 618. In short in these detailed circumstances and upon this particular record the trial court was not compelled of its own volition to separately determine and find the voluntariness of any incriminating statements Linder may have made, certainly not those testified to by Officer Reed. In this view there was not as a matter of fact a manifest infringement of the appellant’s constitutional rights within the meaning of either the federal or state cases, as in Jackson v. Denno or State v. Williams, Mo., 369 S.W.2d 408, and therefore 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.

      . On the subject of retroactive and prospective operation of these cases, particularly since Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, see 40 F.R.D. 351; 80 Har.L.R. 123, 135-141; 52 A.B.A. 868 and prior to Johnson v. State of New Jersey the debates of the academicians, especially insofar as they expound Jackson v. Denno, supra; 79 Har.L.R. 56; 33 Univ.Chicago L.R. 719; 41 Notre Dame L.R. 206; 64 Mich.L.R. 832.


text:
    Antonio EDWARDS, a Minor, by William M. Edwards, His Next Friend, Appellant, v. Mrs. Joan LACY, Respondent.
    No. 51913.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Morris A. Shenker and Frank B. Green, Jr., St. Louis, for plaintiff-appellant.
    Joseph E. McGuire, Eaker & McGuire, Clayton, for defendant-respondent.
   HOUSER, Commissioner.

Four-year-old Antonio Edwards, a pedestrian, was struck, run over and seriously injured by an automobile driven by Mrs. Joan Lacy as he was crossing a street in the City of St. Louis. By next friend Antonio sued Mrs. Lacy for $50,000 damages for personal injuries. A trial jury returned a verdict for defendant. Antonio has appealed from the judgment entered on the verdict.

The negligence charged and submitted was that defendant either “failed to keep a careful lookout, or knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped” [but defendant failed to do so]. The defense was that the child darted out from behind a parked car and into the path of the automobile when the distance separating the child and car was so short that it was not humanly possible to stop and avoid striking him. He was struck as he was running from north to south across an east-west street. According to plaintiff’s evidence there were no parked cars within 60 feet east or 60 feet west of the point where he left the curb. Defendant testified that there were parked cars all along the north side of the street. Defendant’s testimony was that she was traveling 25 m. p. h. at a distance of 30-35 feet west of the point where the boy entered the street, and that counting reaction time and stopping distance there was no chance to avoid striking the boy.

The only point raised on this appeal is that “Counsel for the defense made a naked appeal for sympathy by urging the jurors to view the casualty with themselves in the driver’s position and urging that they put themselves in the defendant’s place thereby importuning them to violate their juror’s oath to view the facts impartially. And, the trial Court’s failure to rule upon plaintiff’s timely objection thereto constituted prejudicial error in that it cast the weight of judicial approval behind defendant’s illegal argument.”

We quote the objected-to portion of the argument of defendant’s counsel, together with some of the argument leading up to and following the challenged argument:

“Mrs. Lacy has a very great personal interest in the outcome of this lawsuit, gentlemen. And I think that you are going to have to have a much better legal and a much better logical basis in returning a verdict against her than you have under these facts.
“I want you to keep those distances in mind: thirty to thirty-five feet from the crosswalk that they say he entered the street from. Giving him the benefit that he entered from the curb instead of a parked car, she still can’t stop, assuming that there is a parked car there and he entered before she could see him behind a parked car. The young lad stood up there, and you think you could have seen this youngster if he ran from a parked car until he got in the street, and he is traveling at seven and a half feet a second, that quickly ? And he has only to travel another eight feet to get to the center line, and here you are driving your automobile down the street. You are men of common experiences. Many of you drive. Would you put yourself in the place of—
“MR. GREEN: Objection. The jury may not put themselves in the position of either party. Argument to do so is highly improper and inflammable. They may call on their own experiences but not place themselves in the position of the parties.
“MR. McGUIRE: (Continuing) You can call upon your own experiences, gentlemen, to recognize the situation that faced Mrs. Lacy under these facts. And when you do, gentlemen, and when you are honest with me, and when you have voted your conscience, you will find out there is no possible way that you could return a verdict under these facts.”

Plaintiff contends that this argument injected the individual juror into the driver’s seat of the moving vehicle and by resort to an appeal to the sympathy of the jury for the defendant, sought to have the jurors identify with the auto driver; and that by making this argument defendant’s counsel asked the jurors to trade places with defendant and decide the case as if they were the defendant instead of jurors. It is claimed that the inference is that “you drive, so it could happen to you as it did to defendant”; that if the jurors identify with the defendant they must first convict themselves of misconduct before they can convict the defendant, and that plaintiff was prejudiced because the jury judged themselves and returned a verdict for themselves. Plaintiff argues that the mischief was compounded by the failure of the court to rule on the objection in the presence of the jury, which in their eyes constituted judicial approval of this attempted transference.

A plea to jurors to put themselves in the place of one of the parties has been “consistently condemned and uniformly branded as improper.” Faught v. Washam, Mo.Sup., 329 S.W.2d 588, 602, fn. 22. Defendant’s counsel should not have made this argument. Standing alone, however, a plea to the jurors to put themselves in the place of one of the parties does not always constitute reversible error. Faught v. Washam, ibidem. It is not ground for reversal if it does not appear probable that the jury was prejudicially affected by the improper statement. Improper statements of this kind may be cured, in given circumstances, by withdrawal, reprimand or admonition, or by proper instruction to the jury. What the trial court should do when confronted with a particular situation depends upon the nature of the argument, the form and character of the objection, the action requested of the court, the subsequent conduct of the offending counsel and the action counsel takes, and in determining what to do the trial judge must take into consideration the parties, the issues, and the general atmosphere of the case. Southwestern Bell Telephone Co. v. Jennemann, Mo.App., 407 S.W.2d 85, 91.

In some cases the error involved in an improper argument to the jury has been held cured by the form of the objection of opposing counsel. Thus in State ex rel. Shipman v. Allen, 144 Mo.App. 234, 128 S.W. 809 [4], l.c. 811, relator’s counsel, in opening statement, after reciting the history of the litigation, stated that this case had been tried on the merits several years ago and had been decided in relator’s favor. He was interrupted by counsel for defendants, who said: “The defendants object. The records show they took a nonsuit.” Apparently nothing further was said, either by counsel or by the court. On appeal it was urged that the court erred in failing to rebuke counsel. The court of appeals held that the error, if one, was harmless, stating that “Whatever poison there may have been in the remark of relator’s attorney was apparently cured by the form of appellants’ objection, and the declaration of Mr. Davis (defendants’ counsel) that relator’s counsel had made a misstatement and suggesting that a non-suit had been taken, instead, was a complete antidote.” Before defendant’s counsel could get the improper argument out of his mouth in the case here for review plaintiff’s counsel interrupted and made a strong objection, clearly pointing out the highly improper and inflammatory character of this type of argument. This characterization of the attempted argument, which was not negated in any way by any action on the part of the trial judge, followed by plaintiff’s counsel’s suggestion of what would constitute proper argument (immediately concurred in and adopted by defendant’s counsel), may well have cured the impropriety.

It is true that the court did not rule on the objection. Ideally, the court should have made a ruling, but in the heat of trial and at the conclusion of an argument events may be transpiring so rapidly, and exchanges between counsel made so quickly, without pause or break in the continuity, that no real opportunity for the making of a ruling presents itself, without the court breaking in and interrupting. In the situation here presented it may well have appeared to the trial judge that a strong antidote had been administered by the objection made, and by the time he was ready to make a ruling on the objection it is reasonable to believe that, defendant’s counsel having quickly picked up and adopted plaintiff’s counsel’s suggestion, the trial judge considered that any error had been erased and that a ruling had become unnecessary.

While defendant’s counsel did not directly withdraw the statement, or concede that he had transgressed, or consent that the jury disregard the remarks, or that he be reprimanded, as did counsel in Sullivan v. St. Louis-San Francisco Ry. Co., 321 Mo. 697, 12 S.W.2d 735 [8], l.c. 740, he did immediately abandon the argument, and did not refer to it again. Thereupon he seized upon plaintiff’s counsel’s suggestion and conception of proper argument on this point and, appropriating and adopting plaintiff’s counsel’s language, substituted it for the offensive argument. By so doing defendant’s counsel impliedly withdrew the argument to which strong objection had been made, and impliedly made the concession. A case sufficiently close on the facts to warrant discussion is Bulkley v. Thompson, 240 Mo.App. 588, 211 S.W.2d 83 [14], l.c. 91, in which plaintiff’s counsel, arguing a railroad crossing case, told the jury that the court had instructed them that “when this engineer could have done something to have spared this life, and he failed to do it, there is liability in this case.” Defendant’s counsel objected to the statement that "the engineer could have done something” and stated that the sole issue was whether a warning was sounded, not whether the engineer could have done something. Immediately following the objection counsel for plaintiff stated “Let’s make it warning. Let’s don’t take up time. Let’s make it warning.” Then he proceeded to argue that no warning had been given. The court affirmed a judgment for plaintiff, saying 211 S.W.2d l.c. 91: “We find nothing about this part of the argument of which just complaint can be made by defendant in view of the action of plaintiff in making the correction confining the subject to a warning.”

Apparently the action of defendant’s counsel here, making the correction by telling the jury that they could call upon their own experiences to recognize the situation that faced Mrs. Lacy under these facts, satisfied plaintiff’s counsel, because no request was made for any further action on the part of the court. He did not ask that the first remarks be stricken, or that the jury be instructed to disregard them or that defendant’s counsel be reprimanded, or that the court declare a mistrial. This he should have done if he expected to place the court in error. Best v. Liverpool & London & Globe Ins. Co., Mo.App., 49 S.W.2d 230 [7], l.c. 232.

Since matters of this kind are lodged in the sound discretion of the trial judge whose apportunity to fairly appraise the seriousness of the transgression, the effectiveness of the cure and to judge whether prejudice was engendered, is far superior to ours, “we feel constrained to defer to the trial court’s discretion, which was exercised in the light of knowledge not afforded us by the printed record,” Sullivan v. St. Louis-San Francisco Ry. Co., supra, 12 S.W.2d l.c. 741, and conclude that the action of the trial court was not erroneous.

Accordingly, the judgment is affirmed.

WELBORNand HIGGINS, CC, concur.

PER CURIAM.

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

All of the Judges concur.

      . as, for instance, ordering counsel to “proceed,” without ruling on an objection, which is held to stamp the conduct of counsel as proper. Dunn v. Terminal R.R. Assoc., Mo.Sup., 285 S.W.2d 701.

      . In Pietzuk v. Kansas City Rys. Co., 289 . Mo. 135, 232 S.W. 987, 994, counsel for plaintiff made an improper remark in argument. Defendant objected, and without ruling on the objection, the court merely said “Proceed.” Thereupon counsel for defendant voluntarily withdrew the remark, and stated that he would substitute in place of it a different argument, to the same effect. On appeal this Court, noting these facts, and that there was no objection to the substituted remarks (there was no such objection in the case here for review), found no abuse of discretion in the failure to reprimand counsel, holding that “If there was any transgression we are constrained to hold that it was cured by such withdrawal.” And see Hieber v. Thompson, Mo.App., 252 S.W.2d 116.