text:
    STATE of Missouri, Respondent, v. James JONES, also known as James Jones, Jr., Appellant.
    No. 49160.
    Supreme Court of Missouri, Division No. 2.
    Feb. 11, 1963.
    Opinion Modified and Motion for Rehearing: or to Transfer to Court En Banc Denied March 11, 1963.

      Joseph Langworthy, Pacific, for appellant.
    Thomas F. Eagleton, Atty. Gen., Charles H. Sloan, Special Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

A jury convicted James Jones of second degree burglary and stealing, and the trial court, after finding that defendant had previously been convicted of prior felonies as charged under the habitual criminal act, sentenced him to a term of seven years for burglary and to a term of five years for stealing, the terms to run concurrently. Defendant has appealed from the ensuing judgment.

From the evidence the jury reasonably could find the following facts and circumstances. The Glenwood Sanitarium maintained on its grounds a barracks or dormitory-type building, known as South Building, as living quarters for its employees. There was a common entrance to the building, and on the second floor there were twelve rooms with a hallway down the middle of the building. Andrew Cloudy, an employee of the Sanitarium, lived on the second floor in Room 212. There was but one door leading into the room which was equipped with a metal hasp and a lock. On the evening of March 20, 1961 Mr. Cloudy locked the door to his room and reported for work. When he returned later the pins in the hinges on the door had been removed, the door opened from the hinge side, and a Motorola “hi-fi” stereo record player, a clock-radio and a number of phonograph records had been taken from the room without his permission. On the evening of April 6, Sergeant Piffel of the Webster Groves Police picked up defendant at the Twelth District Police Station in St. Louis and took him to the Webster Groves Police Station where he was questioned. Defendant signed a written statement which in its material parts was as follows: “[A]bout 6:00 p. m. March 20th, 1961 me and my brother Lewis Jones and Richard Johnson, drove out to Webster Groves in Johnson’s car. Johnson was driving. Lewis directed us to the hospital on Grant Road. When we got there we walked in a building where the hospital help live. Then Lewis and me broke into an apartment by taking a door off of the hinges. Then we all three went into this apartment, and we stole a radio, and a brown and white hi-fi. We put this stolen property in Richard Johnson’s car and we all three went back to St. Louis. The next day we sold the hi-fi to a man on Division Street in St. Louis for thirty dollars. We each got ten dollars of the money. Richard Johnson kept the stolen radio.”

The information charged that the defendant forcibly did break and enter with felonious intent “into a certain dwelling house and building of one Andrew Cloudy, then and there being Room 212 of the South Building of Glenwood Sanatarium.” During the opening statement, by reason of an objection by defendant and after a two-hour conference the prosecuting attorney requested and received permission to amend the information by deleting therefrom the above quoted words, and four others not material to any question on this appeal, and to substitute in lieu thereof certain words so that the information as amended charged that the defendant forcibly broke and entered with felonious intent, “into an inner door of the South Building of Glenwood Sanatarium, being the door to Room 212 of the said building, which room was the dwelling house of one Andrew Cloudy III, * * por reasons subsequently set out this amendment to the information was unnecessary, but since it was made we must consider the contentions of defendant that prejudicial error resulted. Defendant first contends that since the amended information charges that he broke an “inner door” it was defective in that it did not allege facts necessary to charge a violation of Section 560.055 or of Section 560.060. (All statutory references are to RSMo 1959, V.A.M.S.). This requires a review of the provisions of several statutes pertaining to burglary.

Section 560.045 provides that every person who is convicted of breaking and entering into a dwelling house, with intent to commit a felony or to steal, but under such circumstances as not to constitute the offense of burglary in the first degree, shall be deemed guilty of burglary in the second degree. Section 560.085 provides that “the breaking of the inner door” of any dwelling house “by any person being therein, shall not be deemed such breaking a dwelling house as to constitute burglary in any case other than such as are herein particularly specified.” The only cases particularly specified are those in Section 560.055, pertaining to one “who, having entered the dwelling house of another through an open outer door or window or other aperture not made by such person, breaks an inner door of the same house,” and in Section 560.060, pertaining to one “who, being admitted into any dwelling house, with the consent of the occupant thereof, or who, being lawfully in such house, breaks an inner door * * *.” It is admitted by the state that the amended information does not purport to charge a violation of either Section 560.055 or Section 560.060. The determinative question is whether by alleging in the information that the defendant broke and entered an “inner door of the South Building” no violation of Section 560.045 could be charged by .reason of the restrictive provisions of Section 560.085.

The term “dwelling house” is not defined by the statutes. At common law it included any place with some degree of permanency in which one or more persons resided, and it included “any room or unit in which a person actually dwells, such as a room in a large house, a room in a hotel * * *.” Vol. II Wharton’s Criminal Law and Procedure, Anderson, § 423. Whether or not one room of a building regularly occupied by a person constitutes a dwelling house under those burglary statutes which use the term in the common law meaning depends upon the use to which the room is put; that is, whether it is used as the place in which a person maintains his place of abode, whether it is only a part of a larger building constituting his place of abode, or whether it is a mere temporary stopping or resting place as a hotel room used by transient guests. Applying this test it has been uniformly held that one room of a larger building, when in fact used as the place of abode or living quarters of an individual, may constitute a dwelling house. Thomas v. State, 97 Ala. 3, 12 So. 409; People v. Carr, 255 Ill. 203, 99 N.E. 357, 41 L.R.A.,N.S., 1209, Ann.Cas.l913D, 864; State v. Johnson, 4 Wash. 593, 30 P. 672; People v. Horrigan, 68 Mich. 491, 36 N.W. 236. See also State v. Smith, 14 Mo.App. 585, where in a “Statement of points decided in cases not reported” it was said that “A room in which a person sleeps and lives is a dwelling house within the meaning of the statute [pertaining to larceny in a dwelling house], though it is in a building other rooms in which are devoted to business purposes.” The evidence in this case, while not as clear as it should or easily could have been, established that Room 212 in South Building was the dwelling house of Andrew Cloudy.

Sections 560.055 and 560.060 are specifically limited to those situations where a person has entered a dwelling house and then breaks an inner door therein. They do not apply to the situation we have here where there is a breaking of an inner door of a larger building which constitutes the outer door of a room or unit therein which in fact is a dwelling house. Therefore, even though the amended information alleged a breaking of the inner door of South Building, it also alleged that this was the door to the dwelling house of Andrew Cloudy. It properly charged defendant with an offense under Section 560.-045, and our previous statement of the facts clearly demonstrates that a submis-sible case was made as to burglary in the second degree and stealing.

There also is no merit to defendant’s contention that by making the amendment the offense charged or which was attempted to be charged was changed. Defendant admits that before the amendment the information “charged violations of Section 560.-045 and stealing.” He asserts that by the amendment the state “purported to change the burglary charge to either burglary involving breaking [an] inner door under Section 560.055 or burglary, after being admitted with consent of occupant, under Section 560.060, and stealing.” We have held that before and after the amendment the information purported to and did charge a violation of Section 560.045.

Defendant next asserts that the procedure by which the amendment was made “rendered the information as a whole with the various amendments confusing and not readily understandable.” He does not set forth any reason why this is so but asserts only the conclusion that it was. He admits that he has no authority to support a contention that the procedure followed was erroneous. It seems that his real complaint is that a copy of the new information should have been typed and furnished to him instead of furnishing him only a typed statement wherein it was provided that certain words, which were identified and quoted, were deleted from the information, and that certain words, also quoted, were substituted in lieu thereof. Defendant had a copy of the information, he was furnished a copy of the amendment, and he was afforded ample time and opportunity, in fact all that he requested, to examine the amendment and the information as amended. This contention is totally without merit.

Defendant also asserts that the information as amended was not verified as required by Supreme Court Rule 24.16, V.A.M.R., which is the same in substance as Section 545.240. In State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, this court held that the requirements of the statute that an information be verified may be waived, and that “the unsigned and unverified information will be treated as valid if the accused does not attack it by a motion to quash.” Appellant admits he made no objection to or motion to quash the amended information for the reason it was not verified. This contention of error is without merit.

We have disposed of the first six points and the sixteenth point in defendant’s brief. The remaining points and subpoints total forty-eight in number, some of which are insufficient to present any issue for appellate review, and some of which are so totally without merit that to state them demonstrates their unsubstan-tiality. For example, two of the twelve subpoints concerning Instruction No. 11 are that it was error to instruct the jury that it could reject testimony of a witness if the jury believed that he had “knowingly sworn falsely to any fact or facts material to the issues,” when, according to defendant, the instruction should have read “intentionally sworn falsely to any material fact in issue,” or to “any material fact or facts.” Every person who has been found guilty of a crime is entitled to appeal and have all contentions of error which are properly preserved for appellate review to be considered and ruled. We have done this in this case, but we decline to burden this opinion and the published reports by the discussion of numerous points totally lacking of merit. In the remainder of this opinion we shall set forth and rule on those contentions of error made by defendant which warrant a published ruling. Those contentions of error which are adequately preserved to present the issue for review and which are not set forth and specifically ruled herein have been thoroughly reviewed and found to be without merit and are overruled.

Defendant challenges Instructions No. 1 and No. 2 for a total of nineteen separately enumerated reasons. Instruction No. 1 pertained only to burglary in the second degree. It submitted that if the jury found that defendant “did feloniously, burglari-ously, and forcibly break and enter” Room 212 which was the dwelling house of Andrew Cloudy, “with the felonious intent then and there to steal therein * * * you will find the defendant guilty of burglary in the second degree * * Instruction No. 3 pertained only to stealing property over the value of $50 and is not challenged on this appeal. Instruction No. 2 purported to submit facts authorizing a finding by the jury that the defendant was guilty of “burglary in the second degree and stealing.” We shall comment on its language subsequently.

Defendant asserts that Instruction No. 1 assumes that Room 212 was the dwelling house of Andrew Cloudy. Asstuning this to be a question of fact for the jury as distinguished from a question of law, the first words of the instruction are: .“If upon consideration of all the facts and circumstances in the case, and in the light of the Court’s instructions, you find and believe from the evidence, beyond a reasonable doubt, that * * Following this the instruction hypothesized that defendant did “forcibly break and enter into * * * the door to Room 212 of the said building, which room was the dwelling house of one Andrew Cloudy * * * with the felonious intent * * Near the end of the instruction it was stated, “and unless you so find all the facts to be you will acquit the defendant * * *.” Jn this manner, and sufficiently so> the jury was required to find that Room 212 was the dwelling house of Andrew Cloudy. This contention is without merit.

Defendant asserts the instruction is “confusing and erroneous in unnecessarily including the term ‘feloniously’ and in mis-defining it as meaning ‘wickedly’ and ‘unlawfully’ ” in violation of Section 556.020 where the term “felony” is defined to mean an offense punishable by death or by imprisonment in the penitentiary. The noun “felony” and the adverb “feloniously” are not the same word and the cited statute does not govern or restrict the meaning of “feloniously.” Defendant argues that this “unnecessary, tautological, and anachronistic misuse of the word ‘feloniously’ should be ended once and for all.” It is interesting to note that in State v. Tipton, 307 Mo. 500, 271 S.W. 55, and in other cases cited therein, the complaint there was that an instruction was' erroneous because it did not require the jury to find that the act was done “feloniously.” It was not necessary in this case that the instruction use the word “feloniouslyi” State v. Rader, 262 Mo. 117, 171 S.W. 46, but it was necessary that it require a finding that the breaking and entering was unlawful, that is, with a felonious intent, and in State v. Turner, Mo., 272 S.W.2d 266, 48 A.L.R.2d 1008, a second degree burglary case, this court held that the same definitions of the term feloniously as used in this case “are so time-honored as to require no further consideration” of the claim that they were erroneous and prejudicial. The instruction, when considered with the definition of feloniously, required the jury to find that defendant “wickedly and against the admonition of the law, that is, unlawfully” did “break and enter” with the wicked and unlawful intent to steal therein. The error, if any, was that the inst~uction required the jury to find more than necessary, and defendant cannot complain as to that. ;

Defendant also asserts that “a definition of stealing was necessary to this instruction.” As previously noted, this, in-' struction pertained to burglary in the second degree by breaking and entering a dwelling house with the intent to steal therein. Instruction No. 3 pertained to the offense of stealing, of which the defendant was also charged, and as to which no complaint is made. Stealing was not therein defined, but it was defined in the language of the statute in Instruction No. 2, which pertained to burglary in the second degree and stealing. We subsequently rule that the definition there was proper and sufficient. In addition, it has repeatedly been held that a verdict directing instruction, which is not erroneous for some other reason, meets the minimum requirements when in words and effect it follows the language of the statute, which is true as to Instruction No. 1. State v. Grant, Mo., 275 S.W.2d 332; State v. Booker, 365 Mo. 75, 276 S.W.2d 104; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49.

Defendant challenges Instruction No. 2, which submitted burglary in the second degree and stealing, on the basis that it amounts to a comment on the evidence in stating “the defendant stole one Motorola Hi-Fi Stereo record player, of the value of $114.74; one Admiral clock radio, of the value of $12.95, and twenty-three phonograph records of an undetermined value, as mentioned in the evidence,” and also because the value of the items is not supported by the evidence. We first note that this instruction purports to submit stealing from a dwelling house which is a felony “regardless of the value of the stolen property,” Section 560.161 and the submission in the instruction of the value was immaterial and constituted surplusage. However, this does not result in the instruction being erroneous, and the value set forth was precisely that placed on the items by Andrew Cloudy. The requirement that the jury find that defendant stole the enumerated items and that they had a certain value did not constitute a prejudicial comment on the evidence. If the surplus language had any effect whatever it amounted to the assumption of an unnecessary burden by the state to which defendant cannot complain.

Instruction No. 2 contained a definition of the term “stealing,” in the precise language of Section 560.156(2). Defendant contends that there was no evidence of “using” or “concealing” the property alleged to be stolen, and that by the use of these words in the definition of “stealing” the jury was thus invited “to a loose and faulty reading and interpretation of it [Instruction No. 2] and other instructions.” We need only rule that the evidence authorized a finding that defendant, with others, stole the property and then sold part and kept part with the intention of depriving the rightful owner of it, and that those acts constituted a “using” and “concealing” thereof.

We come now to the only contention of error which appears to have some merit. Instruction No. 2 hypothesized that if the jury found that defendant “forcibly, bur-glariously and feloniously broke and entered * * * the dwelling house of Andrew Cloudy, III, as identified to you in the preceding instruction, and after breaking into and entering said dwelling * * * the defendant stole * * (Italics added). Defendant asserts that this instruction authorized a finding of guilt of burglary in the second degree but “does not require a finding of all the elements of burglary and in particular does not .require a finding that the breaking and entering was made with intent to commit a felony or to steal.” Notwithstanding the fact that this contention was precisely set forth in the motion for new trial, and also in defendant’s brief, no mention whatever of this assignment of error appears in the brief filed on behalf of the state.

Instruction No. 2 follows the form which has long been used when both burglary and stealing is submitted, see State v. Speritus, 191 Mo. 24, 90 S.W. 459, except that in lieu of the words above italicized the usual instruction contains the words “as defined and explained in the preceding instruction.” In the “preceding instruction,” in this case Instruction No. 1, the jury was specifically required to find that the breaking and entering was done “with the felonious intent then and there to steal therein.” The determinative question is whether by substituting the words “as identified” for the words “as defined and explained” a reasonably intelligent jury might conclude that the instruction authorized a finding that the defendant was guilty of burglary in the second degree even though at the time of said act he had no intention to steal. (In the information he was charged with a breaking and entry with an intent to steal; not to “commit a felony or to steal” as provided in Section 560.045.) We are convinced that it did not for three reasons, each sufficient alone and all sufficient cumulatively.

The first contention of defendant concerning Instruction No. 2 is that it “in effect incorporates Instruction Number 1.” When we accept this contention of appellant, and he certainly cannot complain of our doing so, the specific requirement of Instruction No. 1 that the jury find that defendant broke and entered “with the felonious intent then and there to steal therein” is incorporated into and became a part of Instruction No. 2. Next, Instruction No. 2 expressly required the jury to find that defendant “burglariously and feloniously broke and entered.” The word “burglariously” means with the intent to commit a felony or to steal. See State v. Gentry, 329 Mo, 282, 44 S.W.2d 27. Here the only evidence was of the intent to steal, but again defendant cannot complain if the state assumed a greater burden than necessary. Third, the phrase “as identified” means the same or substantially the same as the phrase “as defined and explained.” There is no question but that the latter phrase would have been better than the one used, and it is difficult to justify the use of the less descriptive phrase in lieu of the time-honored and uniformly accepted phrase. However, the test is whether the instruction constituted a misdirection; not whether it was worded in the best possible language. We conclude that the instruction was not a misdirection, and that no reasonably intelligent jury could have been misled to believe that while an intent on the part of defendant to steal at the time of the breaking and entering was required under Instruction No. 1, before he could be found guilty of burglary in the second degree, no such intent was necessary in order to find the defendant guilty of burglary in the second degree under Instruction No. 2.

Defendant challenges Instruction No. 9 which pertains to the volun-tariness of defendant’s confession. He also assigns error in the trial court’s refusal to give two requested instructions on the same subject. It was not error to refuse the two requested instructions if Instruction No. 9 was correct and we hold that it was. Instruction No. 9 was substantially in the same words as the instruction set out and approved in State v. Cunningkin, Mo., 261 S.W.2d 85. The substance of defendant’s challenges is that the instruction did not inform the jury (a) that “before any confession or statement can be received in a criminal case, it must be voluntarily made by the accused,” (b) that the burden of proof was upon the state to prove that any admission or confession by the defendant was voluntarily made, (c) and that “the production before them of testimony and an exhibit, purporting to be admissions and confessions of the defendant, did not constitute the introduction of such matter into evidence.” We rule these contentions as follows: (a) The instruction recited that the statement was admissible “if you [the jury] find it was voluntarily given,” and it then defined what was meant by the term “voluntarily.” (b) The general burden of proof instruction, when read with this and the other instructions, correctly set forth the law on that subject, (c) The trial court need not assume that the jury is totally without reason or common sense and instruct on every possible avenue on which a juror might go astray in the deliberations. In addition, there was no exhibit produced before the jury purporting to be a statement or confession of defendant which was not admitted into evidence. Defendant asserts that Instruction No. 9 “goes further” than the one condemned in State v. Cross, Mo., 357 S.W.2d 125, 127; that it is “more prejudicial” than the one disapproved by the court in State v. Johnson, 333 Mo. 1008, 63 S.W.2d 1000; and that “milder instructions” on the same point have been disapproved in State v. Enyard, Mo., 108 S.W.2d 337 and State v. Hudspeth, 150 Mo. 12, 51 S.W. 483. We have read carefully these cases, and it is sufficient to say that they do not support the above general statements of defendant.

Defendant next challenges Instruction No. 11, a typical and historically approved “Falsus in uno, falsus in omnibus” instruction, and in his point submits twelve subpoints, or perhaps a better characterization would be twelve arguments. The first paragraph of the instruction advised the jury that they were the “sole judges of the credibility of the witnesses and of the weight to be given their testimony,” and it then set forth in the usual manner the factors the jury is entitled to consider in determining the credibility of a witness and the weight of his testimony, including among other things, “his or her interest, if any, in the result of the trial.” All the objections but one refer to the last paragraph of the instruction which is as follows: “In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, then you must reject such portion of the testimony as you believe to be false, if any, and you are at liberty to reject all other portions of such witness’ testimony.” Defendant says this portion of the instruction is erroneous because (a) it conflicts with other instructions which requires the jury to find the facts from all the evidence, (b) it is “subject to the interpretation that the jury might reject all testimony of a witness who has sworn falsely to a single fact, without regard to whether it was material,” (c) it does not define “any fact or facts material to the issues in this case,” and (d) that the reference to “his interest, if any, in the result of the trial” could apply only to him.

For a discussion of the history of such an instruction, see State v. Barnes, Mo., 204 S.W. 264. We rule defendant’s assertions of error as follows: (a) The instruction does not conflict with other instructions to the effect that the jury should find the facts from all the evidence, but it is to be read with those instructions. In any event, the defendant is not entitled to an instruction that the jury may or should determine the facts from evidence it believes to be false, which is the effect of this contention, (b) The instruction clearly and expressly limits the scope of the instruction to “any fact or facts material to the issues,” and (c) in State v. Thomas, 353 Mo. 345, 182 S.W.2d 534, 540, it was stated that the term “material facts” is so commonly understood “that an attempt to define it would confuse rather than enlighten.” This is true of the phrase used in Instruction No. 11 which has the identical meaning, (d) Defendant’s girl friend, who could have had an interest in the result of the trial, testified in support of defendant’s defense of alibi, and she testified to numerous inconsistent statements. Therefore, the reference in the instruction to interest in the result of the trial did not refer alone to defendant but he is not entitled to complain if it did. He voluntarily took the stand and testified, and the jury was called upon to determine his credibility and the weight to be given his testimony the same as any other witness.

Upon an examination of the record in this case, including all the contentions of defendant not herein set forth and expressly discussed, we find no error prejudicial to the defendant. The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: BOHLING, Commissioner. LEEDY, J., and EAGER, P. J.,

license: Public Domain

text:
    Arthur KETTLER, Respondent, v. Marvin HAMPTON, d/b/a Overland D-X Service Station, Appellant.
    No. 49371.
    Supreme Court of Missouri, Division No. 2.
    Jan. 14, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 11, 1963.

      A. G. Holtkamp, James J. Amelung, Holt-kamp, Miller, Risch & Amelung, St. Louis, for appellant.
    James F. Koester, and James M. Byrne, St. Louis, for respondent,
   BOHLING, Commissioner.

Marvin Hampton appeals from a judgment awarding Arthur Kettler $16,000 for personal injuries. He questions the sub-missibility of plaintiff’s case, the giving of certain instructions, and the propriety of an argument on behalf of plaintiff.

Plaintiff was injured September 4, 1959, while at defendant’s service station in Overland for a “grease job” bn his 1956 Chevrolet automobile, equipped with automatic transmission, when his car suddenly lurched forward. Plaintiff contends defendant placed the selector (gear shift) lever in drive position. Defendant contends plaintiff left it in drive position when he got out of the car.

We first state the evidence favorable to pláintiff.

Defendant’s “grease rack” or “lift” resembles the letter “H,” two iron channels with a connecting link across the middle. It has no runways for the wheels. The rack comes up against the axle or frame of a car and lifts it so the wheels are hanging in the air. Cars -have to be centered on the rack. Three iron bars (we understand ⅛ to ½ inch high) on the floor back of the rack are used to position car’s rear wheels. Aside from the bars, the floor surface is flat. There are no other blocks or stops to keep a car from rolling.

Defendant, standing at the left front corner of plaintiff’s automobile, guided plaintiff’s positioning- of his car over the rack by hand motions, stopping it with the rear wheels between the second and third iron bars and the front end about five feet from a tool cabinet. He told plaintiff to leave the motor running and he would check the automatic transmission. The plaintiff left his motor running, his car in neutral gear, and his brake released. Defendant was standing with his hand on the driver’s door when plaintiff got out. Plaintiff moved to near the front of his car alongside his left front fender. He heard no tapping or pecking noise from his motor. Out of the corner of his eyes, he saw defendant leaning inside the car, with his head lined up with the center of the steering wheel. He could not tell in what direction defendant was looking or where defendant’s hands were. Defendant was called by some one in the office and just as defendant left plaintiff heard a tapping or pecking noise start all of a sudden in his motor. Plaintiff did not then know what caused this noise in his motor, or that his selector lever had gotten into drive position.

Plaintiff worked as a truck mechanic in about 1940 and 1941, and continued to do mechanical work on his automobiles, adjusting and tuning them. He walked to the center of the front of his car, raised the hood, listened to his motor, reached forward, “jiggled the throttle”; that is, gunned the motor and caused it to get quite a bit faster. The car lurched, jumped forward, driving plaintiff into the work bench and breaking both of his legs. Plaintiff, although he was unable to stand, pushed the car back about four feet. Defendant, not looking for any defect, noticed nothing wrong with plaintiff’s car or its transmission system when he drove it out of the service station immediately after plaintiff’s injury.

Plaintiff testified there never had been any work on the transmission or connecting links between the lever and the transmission of his car. In March, 1960, he made tests with his car after being released from the hospital. He placed the front of his car against the bumper of another car. Standing alongside his left front fender with his motor running and his selector lever in “neutral,” he heard no tapping or pecking noise, but when the lever was placed in drive position and the motor started laboring this tapping or pecking noise started. It was the same noise he heard at defendant’s service station. It occurred only when the lever was in the drive position. He tried “all kinds of things” (jarring and shaking the car) to make the selector lever drop accidentally into the drive position but he could not make it do so. The lever had to be put manually in the drive position.

Willard McKinley, a school teacher, Milton A. Rossner, a laundryman, and defendant were defendant’s witnesses. They were in the office when plaintiff arrived. Defendant, after plaintiff positioned his car over the rack, suggested that plaintiff “leave the engine running” in order to check the automatic transmission. He then told plaintiff he was going to pay his laundryman and would be right back. Defendant testified that, after plaintiff positioned his car and prior to the accident, he was never on the driver’s side of plaintiff’s car, never looked inside plaintiff’s car, and passed on the passenger’s, the right, side of plaintiff’s car when he went to the office. As defendant started to pay Rossner, a crash was heard in the grease room. The three men immediately went into the grease room, and found plaintiff injured and in a sitting position in front of his car.

There was testimony that plaintiff, within a few minutes after his injury, stated: “I had forgotten I left the car in gear.” “How foolish can a man be.” “Nobody’s fault but my own.” McKinley testified Rossner had gone to get something for a tourniquet when plaintiff made the statements. At the trial plaintiff testified he would not deny making the statements; he did not know whether he made them or not; he may have made them. He explained that at the time of the accident he thought the cotter key might have fallen out as he was stopping his car so that even though he moved the selector lever to neutral, the transmission would still remain in drive gear; that something of this nature had happened on a prior occasion. It was following the tests plaintiff made after being released from the hospital that he learned there was nothing wrong with the transmission on his car and that the selector lever had to be placed in drive gear manually.

In passing on the submissibility of plaintiff’s case, the evidence is to be reviewed in the light most favorable to the plaintiff, including all inferences of fact which a jury might draw with propriety. Hall v. Rager, Mo., 357 S.W.2d 83[1]; Flanigan v. City of Springfield, Mo., 360 S.W.2d 700[3].

Defendant contends there was rio direct or legally sufficient circumstantial evidence to establish that he put the selector lever in drive position. He cites Davidson v. Hennegin, Mo., 304 S.W.2d 836, 839[6] ; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31, 33 [3, 4] ; Lindsay v. Wille, Mo., 348 S.W.2d 1, 4[5-6], and Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167, 171 [8, 9]. Defendant argues that plaintiff, who had just driven his car into the grease room, might have left the car in drive gear, imposing no liability on defendant; or the lever may have dropped into drive position without being touched by anyone. In each of defendant’s cited cases there was no substantial evidence that the defendant or defendants committed the alleged negligent act, including circumstantial evidence negativing the idea it was due to a cause not attributable to defendant. Defendant’s cases supra, and the Pie-traschke case at 169 [1,2]. In the case at bar, if plaintiff’s evidence is believed, he left the selector lever in neutral when he got out of his car; defendant was the only person who, thereafter and prior to plaintiff’s injury, was in a position to have moved the lever from its neutral position to its drive position; and, according to plaintiff, the lever had to be moved manually from its neutral position to put it in drive position.

The Pietraschke case (supra 171 [8, 9]) was a master and servant case. Plaintiff, a house servant, ran a needle into her hand when she made a quick swipe to brush ashes off a card table. The court considered the servant assumed the ordinary risks incident to the employment; that the master had no reason to anticipate the servant would perform the duty involved without observing and removing such objects, or would not use a cloth to wipe off the table. This situation differs from moving an automobile selector lever from neutral to a drive position with the motor running and the brakes released and then leaving the automobile with its auto-mechanic owner standing near the front of it.

The negligence of a motorist in leaving an automobile on a street in gear with the motor running, without anyone to operate it, and with guests in the rear seat, has been held a jury question. Myers v. Hauser, Mo.App., 61 S.W.2d 214[3]. See, among others: Humble Oil & R. Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995 [3, 4, 7, 8] ; Moody v. Clark, Tex.Civ.App., 266 5.W.2d 907[4, 6]; Block v. Pascucci, 111 Conn. 58, 149 A. 210[2] ; Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184 [7 et seq.]; Prager v. Isreal, 15 Cal.2d 89, 98 P.2d 729 [10, 11]; Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617[3]; Storey v. Parker, La.App., 13 So.2d 88[3]; 2A Blashfield, Cyc. Automobile L. & P., § 1206; Annotations, 16 A.L.R.2d 1010; 51 A.L.R. 2d 645.

The case at bar differs from defendant’s authorities. It may be close; but defendant’s presentation does not establish that plaintiff failed to make a submissible case.

Plaintiff’s verdict-directing instruction (No. 2) required findings, in the conjunctive, that on the occasion in evidence plaintiff was at defendant’s to have his automobile lubricated; that defendant aided plaintiff in positioning his automobile over the rack in the grease room; that defendant instructed plaintiff to leave his motor running; that plaintiff followed said instruction, did leave his motor running, and left his automobile with its selector lever in its “neutral” position and (quoting): “if you further find that immediately thereafter defendant leaned into plaintiff’s automobile and moved the selector lever into a drive position and that defendant left the automobile of the plaintiff and that thereafter plaintiff raised the hood of his automobile and moved the throttle to accelerate the motor, if you so find, and if you further find that immediately thereafter plaintiff’s automobile was caused to move suddenly forward striking and injuring plaintiff and if you further find that the move.ment of said selector lever on the part of defendant was a failure to exercise ordinary care and .was negligent and that plaintiff was injured as a direct result of the negligence of the defendant and that plaintiff was at all times in the exercise of ordinary care for his own safety * * ” the verdict should be in favor of plaintiff.

Defendant first contends the instruction is erroneous because it lacks a finding of “forseeability,” stressing Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 471 [8-17].

Ordinarily, - the duties imposed by ' the 'law of negligence arise -out of circum.stances and are based On .forseeability or .reasonable anticipation that harm or injury .is a likely result of acts or omissions. Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623, 627 [5]; Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 494 [7], See also 38 Am.Jur., Negligence, § 70; 86 C.J.S. Torts § 28; 2 Restatement, Torts, § 302. Defendant was not charged with an intentional wrong.

In the Phillips case plaintiff predicated a verdict (1. c. 475 of 351 S.W.2d) on the failure of the operator of a stalled truck, which occupied part of the traveled portion of the highway,, to exercise the highest, degree of care to give warning signals to .westbound motorists on the highway at a time of the day when the setting sun interfered with their vision. The court considered (1. c. 476) the knowledge, actual or constructive, of the operator (defendant Fred) of the peril created by the stalling of the truck was an essential prerequisite to a finding he was negligent in failing to warn westbound motorists and was a disputed factual issue permitting of different conclusions by reasonable men. The court held (1. c. 477 [17]) : “For failure to hypothesize and require a finding to the effect that defendant Fred knew, or in the exercise of the highest degree of care could and should have known, that the stalled truck had come to rest at a time when and a place where the vision of some westbound drivers probably would be materially affected and severely limited by the setting sun (if so) and that, by reason thereof, some accident and injury might result if adequate warning were not given to westbound drivers on Route D, instruction P 1 was fatally deficient and prejudicially erroneous.”

Plaintiff’s position is that the Phillips case was submitted on defendant’s failure to warn (1. c. 475) whereas plaintiff’s case was submitted on defendant’s movement of the selector lever into drive position. This overlooks, as pointed out in the Phillips case (1. c. 476 [16]), that a verdict-directing instruction “must require the finding of all facts disputed or not conceded, which are necessary to support the directed verdict, and may neither ignore nor assume any such fact.” The only charge in plaintiff’s petition upon which said instruction could have been based read: “Said defendant negligently and carelessly caused the gear shift lever of plaintiff’s said automobile to be placed in a drive position and thereafter failed to warn plaintiff that said gear shift lever had been placed in a drive position.”

Under the peculiar facts of this record the mere placing of the selector lever in drive position with the motor running did not cause plaintiff’s automobile to move or to injure plaintiff. The automobile did hot move forward until after plaintiff heard the tapping or pecking noise, walked to the center of the front of the car, raised the hood, listened to his motor, reached forward and gunned the motor, which caused the car to lurch forward and injure him. He thereafter pushed the car back. This occurred in the grease room of a service station, not on a public street or location, to one with experience as an auto mechanic. It has been said Missouri law recognizes that a “defendant cannot be held liable for negligence for failure to take precautionary measures to prevent an injury, which if taken would have prevented it, when resultant injury could not reasonably have been foreseen and would not have happened unless under exceptional circumstances.” McHugh v. National Lead Co., E.D.Mo., 60 F.Supp. 17, 20 [4]. See Lawson v. Higgins, 350 Mo. 1066, 169 S.W.2d 881, 883 [8, 9]; American Brewing Co. v. Talbot, 141 Mo. 674, 42 S.W. 679, 682, 64 Am.St.Rep. 538; Annotation, 155 A.L.R. 157. “ ‘Anticipation’ or ‘foreseeability’ is an essential element in determining negligence. Restatement of Torts, Sec. 289.” Gladden v. Missouri Pub. Serv. Co., Mo., 277 S.W.2d 510, 519 [10]. See Restatement, .Torts, § 284. “One cannot ordinarily be charged with negligence in failing to anticipate negligence on behalf of another. One is not negligent in assuming and acting upon' the assumption that others will not violate the law or fail to exercise due care for their own safety, in the absence of notice to the contrary.” Highfill v. Brown, Mo., 340 S.W.2d 656, 663 [9]. Some danger should exist toward which precautions are to be directed if a defendant is to be held for failing to take precautions. Defendant’s knowledge, actual or constructive, of a probable hazard created by the placing of the selector lever in drive position was not a conceded fact and was an essential prerequisite to a finding that defendant was negligent. In these circumstances an appropriate finding that defendant knew or should have known, in the exercise of ordinary care, that to leave the automobile with the selector lever in drive position was hazardous and dangerous shoqld have been,.submitted in the instruction.

We need not consider defendant’s other attacks against the instruction. Some may be readily obviated, and counsel will have an opportunity to make such corrections as he may consider proper.

Defendant also questions the giving of instruction No. 2 and instruction No. 7 on the ground there was no sufficient circumstantial evidence to permit of the inference that defendant placed the selector lever in drive position. Instruction No. 7 was to the effect that if the jury found from the evidence, including the circumstantial evidence, the facts to be as submitted in instruction No. 2, then plaintiff had met the burden of proof required of him. Our holding that the evidence, when viewed in the light most favorable to plaintiff, permitted of a finding that defendant placed the selector lever in drive position refutes the position taken by defendant with respect to instruction No. 7.

Plaintiff’s counsel, in his closing argument, stated that Dr. Belmont Thiele had examined plaintiff on behalf of defendant; was never called to the witness stand, and, from this, the jury could infer the doctor’s testimony would have been adverse to defendant. Defendant’s objection to this line of argument was overruled. We find no evidence of record that Dr. Thiele examined plaintiff for the defendant. A supplemental transcript, filed by plaintiff, discloses that his counsel during the voir dire examination of the jurors stated that defendant’s attorney had selected Dr. Thiele to make an examination of plaintiff. Unsworn statements of trial attorneys do not prove themselves or constitute evidence. Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250 [4]. Defendant’s objection should have been sustained. Murphy v. Tumbrink, Mo.App., 25 S.W.2d 133 [3].

The judgment is reversed and the cause is remanded.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

STORCKMAN, J., concurs.

LEEDY, J., and EAGER, P. J.,

concur in result and concur in the opinion except that portion holding that Instruction No. 2 was prejudicially erroneous.


author: STORCKMAN, - Judge.

text:
    Hester CROKER, Appellant, and John H. Croker, Respondent, v. CONSOLIDATED SERVICE CAR COMPANY, Inc., and Josephine E. Hamilton, Appellants.
    No. 49003.
    Supreme Court of Missouri, Division No. 2.
    Feb. 11, 1963.
    Rehearing Denied March 11, 1963.

      1 Wilson Gray, St. Louis, for Hestor Cro-ker and John H. Croker.
    Charles F. Hamilton, F. Douglas O’Leary and Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for Josephine E. Hamilton.
    John T. Murphy, Jr., Murphy & Roche, St. Louis, for Consolidated Service Car Co., Inc.
   STORCKMAN, - Judge.

The appeals in this case, three in number, are from a decree in a consolidated suit in equity seeking to determine the validity of 'an attempted settlement of the separate claims of a woman and her husband growing out of personal injuries received by the 'wife when she was struck by one automobile and carried by it into - collision with another. In her equity action the wife, Hester Croker, sought to set aside a judgment for $17,'000. rendered against Consolidated Service, Car Company, Inc., pursuant 'to a stipulation in her personal injury suit ' for $100,000 and to háve the case reinstated on the trial docket. The decree denied her the relief requested and she has appealed. Separate answers and counterclaims sounding in equity were filed by the defendants, Consolidated Service Car Company, Inc., and Mrs. Josephine E. Hamilton, in a civil action for expenses and loss of services brought by the husband, John H. Croker. These equitable issues sought to validate the agreement by which Consolidated, in addition to satisfying the judgment, was to pay $500 to the husband for his release, and the defendant Hamilton was to pay $2500 jointly to Mr. and Mrs. Croker for their covenant not to sue. These issues were consolidated for trial with Mrs. Croker’s equity suit. Except for approving the compromise judgment, the relief requested by the defendants Consolidated and Hamilton was denied and they have appealed. In general the questions presented on appeal is whether the trial court erred in denying the relief requested by the various appellants.

On June 9, 1958, Mrs. Croker while crossing Locust Street from south to north on the east, side of Seventh Street in downtown St. Louis was struck by a westbound automobile alleged to have been operated by an agent of the defendant Consolidated Company. Mrs. Croker was thrown partially onto the hood of the automobile and carried in this fashion until it collided with another automobile northbound on North Seventh Street operated by the defendant Josephine E. Hamilton. Mrs. Croker received serious injuries, particularly to her lower legs.

Mr. and Mrs. Croker, aged 70 and 53 respectively, operated a cleaning and pressing establishment at 3100 Laclede Avenue in St. Louis. On .the morning of June 10, 1958, Oliver R. Farrell, a lawyer with offices in the City of St. Louis, at the suggestion and in the company of .Reverend -Columbus Williams, a client of Mr. Farrell and a brother-in-law of Mrs. Croker, went to the place of business. Mr. Farrell testified that he advised Mr. Croker' that both he and his wife .had claims for damages as a result of the accident and that Mr. Croker said he had no lawyer and requested that Mr. Farrell represent him and his wife and “take care of their cases.” From there Mr. Farrell, still accompanied by Rev. Williams, went to the hospital, talked to Mrs. Croker who signed a contract authorizing Mr. Farrell to represent her in the prosecution of her claim for damages on a contingent fee basis of one-third of the amount recovered.

On October 21, 1958, Mr. Farrell filed _a dámage suit on behalf of Mrs. Croker, No. 14259-E, in the Circuit Court of the City of St. Louis against Consolidated Service Car Company, Inc., and Josephine E. Hamilton. Thereafter and before the depositions were taken in February 1959, Mr. Farrell brought into the case as additional counsel Mr. Geo V. Barnhart, a St. Louis lawyer having a wide experience in the personal injury field. On December 7, 1959, which was the second trial setting, the case was assigned for trial to Division 18 of the Grcuit Court, presided over'by Judge Robert L. Aronson. Before the trial begun, settlement talks were had with the result that a judgment was entered in favor of Mrs. Croker against Consolidated in the sum of $17,000, payable $5,000 within fifteen days, and the balance in monthly installments of $300 each. The suit was dismissed as to the defendant Hamilton without prejudice. It is further asserted by the defendants Consolidated and Hamilton, and denied by Mr. and Mrs. Croker, that a valid settlement agreement was made whereby the defendant Hamilton was to pay the sum of $2500 to Mr. and Mrs. Croker and receive from them a covenant ■not to sue and the defendant Consolidated was to pay the further sum of $500 to Mr. ■Croker upon the execution and delivery of a release covering his claim growing out ■of the injuries to his wife.

After the judgment was entered in Division 18, but before the settlement was completed, Mrs. Croker demanded more money, .and when advised that no more could be •obtained she undertook to discharge Mr. ' Farrell and Mr. Barnhart. She and Mr. Croker refused to complete the alleged settlement of their cláims and to accept the .consideration therefor.

Thereafter, Mr. and Mrs. Croker engaged their present counsel and instituted additional litigation. Mr. Croker filed suit against Consolidated Service Car Company, Inc., and Josephine E. Hamilton seeking damages in the sum of $11,500 for loss of his wife’s services and his expenses. In bar of this action, the defendants, ínter alia, pleaded the settlement agreement. These issues were consolidated with the equity suit filed by Mrs. Croker against Consolidated and Mrs. Hamilton in which the plaintiff prayed that the court “set aside .and annul said compromised judgment, stipulation and settlement," and reinstate her damage suit No. 14259-E on the trial docket. The consolidated equity case was tried before the court without a jury and a decree was rendered denying at least portions of the relief sought by each of the appellants — Mrs. Croker, Consolidated Service Car Company, Inc., and Mrs. Josephine E. Hamilton. The evidence will be further developed in connection with the questions presented.

The first point of Mrs. Croker’s appeal is that the trial court erred in dismissing her petition to set aside the judgment in Cause No. 14259-E and in ordering her to specifically perform the judgment because the settlement was not authorized by her nor consented to or ratified by her. It is admitted that Mrs. Croker employed Mr. Farrell to represent her and that he filed suit for her on October 21, 1958, seeking damages in the sum of $100,000. For reasons more fully developed later, Mr. Farrell associated Mr. Barnhart with him. Mr. Barnhart was to be compensated out of Mr. Farrell’s contingent fee without additional cost to the Crokers. This fact was made known to and acquiesced in by Mrs. Croker. Mr. Barnhart appeared with Mr. Farrell at the taking of the depositions in February 1959 and thereafter participated in the preparation of the case for trial. Unfortunately, . Mr. Barnhart died before the trial of this consolidated case; hence we’ do not have the' benefit of his testimony.

On Saturday, December 5, Mr. Farrell picked up Mr. and Mrs. Croker and took them to Mr. Barnhart’s office for -a conference in final preparation for the trial of the case on the following Monday, December 7, 1959. In some respects the testimony as 'to what occurred at this conference is conflicting. Mr. Farrell testified that the conference lasted about four and one-half hours, while the Crokers contended it lasted only fifteen or twenty minutes. Mr. Farrell testified that in addition to making final preparation for trial the possibility of settlement was discussed. Mr. John T. Murphy, Jr., representing Consolidated, called during the late afternoon while the Crokers were present and talked to Mr. Barnhart. Until then Consolidated had not indicated an ability or willingness to pay anything in excess of $5000 in settlement which was not acceptable to Mrs. Croker or her attorneys. Consolidated carried a policy of liability insurance which covered the company but not the driver in the sum of $5000. Up to that time the only settlement figure Mrs. Croker’s attorneys had communicated to Consolidated was $50,000. The defendant Hamilton had denied liability and refused to pay anything in settlement. Mr. Murphy asked Mr. Barnhart to give him a “realistic” settlement figure and was told by Mr. Barnhart that the Crokers were in his office, that he would talk to them and give Mr. Murphy a “confirmed settlement figure” on Monday morning.

Although Mr. Croker was, as he testified, of the Negro race, his skin was very light-colored. Being disturbed that this circumstance might distract the attention of the jury from the merits of Mrs. Croker’s case and the seriousness of her injuries, Mr. Farrell and Mr. Barnhart suggested that Mr. Croker be not present at the trial. To this Mr. Croker agreed saying that this condition had caused misunderstandings in connection with his business. Mr. Farrell testified that Mr. Croker then told him and Mr. Barnhart that if an offer was made before or during trial they were authorized to settle his claim as well as his wife’s for any sum approved by Mrs. Croker.

When the attorneys reported in Division 18 for trial pursuant to assignment, an inquiry by Judge Aronson precipitated a further discussion of settlement among the attorneys — Mr. Farrell and Mr. Barnhart purporting to represent the Crokers, Mr. John T. Murphy, Jr., representing Consolidated Service Car Company, Inc., and Mr. Charles F. Hamilton representing (but not related to) Mrs. Josephine E. Hamilton. Mrs. Croker was in the courtroom during this entire period. After considerable negotiation, Consolidated offered a total of $17,-500 and the defendant Hamilton $2500. In her testimony Mrs. Croker remembered that Mr. Farrell asked Judge Aronson if he felt this was a fair settlement and the judge said, “Leave it to the client.” Mr. Farrell and Mr. Barnhart talked to Mrs. Croker and recommended settlement on that figure and Mrs. Croker agreed. Since the members of the jury panel had been brought into the courtroom, the parties were invited by Judge Aronson to come into his chambers. The court reporter was called and a memorandum of the settlement was dictated. On that day the plaintiff dismissed her cause of action against the defendant Josephine E. Hamilton without prejudice and the cause was passed for settlement as to the remaining defendant. On the following day pursuant to a stipulation signed by the attorneys a judgment was entered in favor of Mrs. Croker and against Consolidated for $17,000 and costs. Execution was stayed upon the condition that the defendant pay $5,000 within fifteen days and the remainder of $12,000 in monthly installments of $300 beginning on January 15, 1960. On default of any payment execution was to issue.

A typewritten transcript of the memorandum of settlement was introduced in evidence as defendant Consolidated’s exhibit No. 6. The court reporter also read from his notes the proceedings taken in the presence of Judge Aronson, Mrs. Croker, and the various attorneys. Since this record embodies all the terms of the settlement, it will be set out in full. The portion in brackets in the second paragraph was supplied by the court reporter’s notes. The complete transaction as recorded by the court reporter is as follows:

“MR. BARNHART: If the Court please, here in chambers, at the beginning of this trial, on behalf of the plaintiff I would like to inform the Court that we have arrived at a possible method of disposing of this case by settlement, which is as follows:
“Attorney Charles F. Hamilton, representing the defendant, Mrs. Josephine E. Hamilton, has made an offer of $2500 to pay [to plaintiff and] her husband in consideration of their executing a covenant not to sue Josephine E. Hamilton in the future nor to further prosecute this lawsuit against her seeking damages arising out of the accident which is the subject of this lawsuit.
“Mr. John T. Murphy, representing the Consolidated Service Car Company, has agreed that on behalf of his client that he will pay John H. Croker, the husband of the plaintiff, the sum of $500 within the next ten days upon condition that John H. Croker execute a full release of his cause of action arising out of the automobile accident which is the subject of this lawsuit.
“And that the Consolidated Service Car Company will agree now to execute a stipulation to be filed in this cause, the terms of which will be as follows:
“That judgment will be entered in favor of the plaintiff and against the defendant Consolidated Service Car Company in the total sum of $17,000 and costs, and that execution thereon will be stayed upon the following conditions, to-wit:
“That the Consolidated Service Car Company pay to plaintiff, Hester Croker, the sum of $5,000 within fifteen days hereafter, and that they pay the balance of $12,000 in monthly installments of $300 each for forty consecutive months, the first payment to be made on the 15th day of January, 1960, and each payment being — additional payment of $300 being made on the 15th day of each month thereafter until a total of forty payments has been made; and that upon default of any one of such payments for a period of fifteen days that execution shall issue immediately.
“Mr. Hamilton, that is your understanding of how we are to dispose of this matter, is that correct?
“MR. HAMILTON: I didn’t hear this first portion of this, but it is my understanding that this lawsuit will be dismissed by plaintiff with prejudice, or without prejudice?
“MR. BARNHART: Yes; and then we will then enter a covenant not to sue signed by plaintiff and her husband for the amount of $2,500.
“MR. HAMILTON: That is right.
“MR. BARNHART: Mr. Murphy, you have heard me dictate the full understanding into the record ?
“MR. MURPHY: Yes.
“MR. BARNHART: Within the usual period of time Consolidated will pay $500 for the husband’s release only.
“MR. MURPHY: What period of time?
“MR. BARNHART: Within the usual period of time, and there will be entered as of today a judgment against this company for $17,000, $5,000 of that to be paid within fifteen days of today, and the balance to be paid at the rate of $300 each month until it is all paid, the first of those payments to be made January 15, 1960, and the succeeding payments on the 15th day of each month thereafter and upon any such payments becoming delinquent for a period of fifteen days that execution shall issue immediately.
“MR. MURPHY: That is correct.
“MR. BARNHART: Now, Mrs. Croker, do you understand the manner in which this is being settled?
“MRS. CROKER: I think I do.
“MR. BARNHART: In other words, to explain it further to you, you and your husband together, within the next fifteen days will be paid the sum of $8,000 in cash money. Then you have $12,000 more coming, but that will be paid to you $300 a month beginning on January 15, 1960 and continuing for forty months thereafter, and you understand, of course, that out of the total of $20,000 that you understand that you and your husband are going to receive, you have to pay Mr. Farrell the fee that you agreed to pay him to represent you?
“MRS. CROCKER: Yes.
“MR. BARNHART: And you understand, of course, that you have to pay the hospital and doctor hills, that they are going to have to be paid?
“MRS. CROKER: Yes.
“MR. BARNHART: You understand those things?
“MRS. CROKER: Yes.
“MR. BARNHART: I have explained to you in this case that the jury could give you $50,000 or $100,000 but if they did it would just put the Service Car Company' out of business, they wouldn’t give you anything, you understand ?
“MRS. CROKER: Yes.
“MR. BARNHART: This is all they are willing to give you, do you understand that?
“MRS. CROKER: I understand, yes.
“MR. BARNHART: Do you want the Court to enter this judgment for $17,000?
“MRS. CROKER: Yes, I will take it, I get around so poorly, I just can’t get out;
' “MR. BARNHART: That is all.”

An oral stipulation for the compromise and settlement of claims growing out of personal injuries made in open court in the presence of the parties and preserved in the record of the court is as binding as a written agreement. Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S. W.2d 751, 755 [9]. From the record so made and other evidence in the case, it is manifest that the settlement was authorized by Mrs. Croker, was with her consent, and is binding on her. There is no issue of ratification in the case.

Mrs. Croker further contends that the record is not effective because it was not made “in open court” as was the one approved in the Fair Mercantile case. She cites Art. I, § 14, of the Constitution of Missouri 1945, V.A.M.S., and § 476.170, RSMo 1959, V.A.M.S., which provide that the courts shall be open to every person and that every person may freely attend. But one of the cases she cites holds that a hearing outside of the regular courtroom does not deprive the court of jurisdiction and make its judgment a nullity. State ex rel. Green v. James, 355 Mo. 223, 195 S.W.2d 669, 671 [2,3]. Moreover, the nature of the act and the circumstances under which it was done demonstrate that it is wholly immaterial that the record was made in a portion of the judge’s chambers rather than the courtroom proper. The jury panel had been called and were sitting in the courtroom. Judge Aronson explained in his testimony that it was due to the presence of the jurors that the record was made in his chambers rather than asking the jurors to leave the courtroom. He described the proceeding as being handled in the same manner as if held in the courtroom • proper. The plaintiff has not shown any prejudice by reason of the fact that the record was not made in the courtroom proper and we have found none. Nor is there any substance to the. plaintiff’s bare assertion that the record itself is not clear as to the meaning of the parties.

The plaintiff further urges that Mr. Barnhart, the attorney who “actually worked out the compromise, had no authority to represent plaintiff, and this fact was known by the defendants.” The evidence is quite clear that Mr. Barnhart was engaged to assist in the prosecution of the litigation with the knowledge and consent of Mrs. Croker. He became an attorney of record in the case and was active in the preparation for trial at least ten months before the December 1959 trial date. Mrs. Croker herself testified that Mr. Farrell told her that Mr. Barn-hart was coming1 into the case to help him and when she was told she would not have to pay an additional fee to Mr. Barnhart her reply was, “it was all right with me.” The cases cited in which additional attorneys fees were being sought for an associate counsel brought into a case without the client’s consent are not in point on the facts of this case. The contention is denied.

Next Mrs. Croker contends that if the settlement was authorized Consolidated breached its part of the agreement, thereby preventing performance in that some of the checks were made payable to Mr. Farrell as her attorney and others included the name of Mr. Barnhart as one of the payees, and the checks sent to her attorneys did not constitute a payment on the judgment. Under date of December 18, 1959, the attorneys wrote Mr. and Mrs. Croker advising them that all of the settlement checks and papers were on hand and requesting them to come to the office. When the Crokers did not come in, a similar letter was mailed dated January 6, 1960. Telephone calls were also made to the Crokers. On June 25, 1960, Mrs. Croker wrote to Consolidated Service Car Company, with a copy to Mr. Farrell and Mr. Wilson Gray, advising the Company that Mr. Farrell “no longer represents me and you are therefore instructed to make no further payments or not to send any further payments or checks to him on my behalf in an effort to fulfill the compromise judgment”. Consolidated answered by letter saying it was ready and willing to perform. Mr. and Mrs. Croker made no timely objection to the tender of payment by checks or to the manner in which they were payable. Inclusion of the names of the lawyers was proper in order to protect the debtors against the lien rights of the attorneys. A tender of a check in payment of an obligation is sufficient where the payee refuses to accept on grounds other than the character or form of tender. Diehr v. Thompson Chemicals Corp., Mo.App., 281 S.W.2d 572, 578 [5]; Thompson v. St. Charles County, 227 Mo. 220, 126 S.W. 1044, 1048 [5]. The record clearly shows that the reason for the Crokers’ refusal was their desire to obtain more money than provided by the settlement agreement. The contention that Consolidated breached its part of the agreement is without merit.

A further contention is that the settlement approved by the plaintiff’s attorneys was grossly inadequate and unfair. The total amount to be paid is $20,000. There is no doubt that Mrs. Croker received very severe and disabling injuries which if liability had been established would have supported a verdict substantially in excess of $20,000. The cases cited by the plaintiff deal with awards made by juries. They do not involve payments made in compromise of disputed claims. The plaintiff wholly ignores serious obstacles in the way of her obtaining and collecting a substantial judgment. Among these is the fact that Consolidated contended that the automobile which struck Mrs. Croker was owned by the driver who was not at the time an agent of Consolidated because he was on business of his own and not on one of his regular runs. The driver was not insured at all and Consolidated was insured for only $5,000. Apparently Consolidated’s business operations did not require a large amount of physical assets, and there was a strong likelihood that an execution issued on a substantial judgment would have put the Company out of business. The prospects of establishing negligence on the part of the defendant Hamilton and obtaining a substantial judgment against her were not favorable. Mrs. Croker herself testified that Mrs. Hamilton was proceeding north on Seventh Street with the green light in her favor when the Service Car struck and carried Mrs. Croker into the side of the Hamilton automobile. Counsel for the defendant Hamilton had considered the case as one of no liability and had refused to make any offer of settlement until he was prodded into doing so by the trial judge.

When the time spent by Mr. Barnhart and Mr. Farrell for the trial of the personal injury case appeared to be questioned in the present case, the trial judge paid tribute to the thoroughness with which Mr. Barn-hart prepared his cases. Mr. Barnhart’s ability, industry and integrity are well known by reason of his practice in this and other courts of Missouri. The record demonstrates that the attorneys were diligent and conscientious in the prosecution of the claims. It is seldom that all parties are completely satisfied with a settlement because a compromise by its very nature requires mutual concessions. Nearly every one who settles feels that he would have done better to have tried his case, and many who stood trial wish they had settled. On the record before us, it appears that Mr. and Mrs. Croker were well advised to accept a settlement of $20,000.

It is well established that inadequacy of consideration alone is not a sufficient ground for setting aside the settlement of an unliquidated claim for damages resulting from personal injuries. Kavadas v. St. Louis Southwestern Ry. Co., Mo.App., 263 S.W.2d 736, 739 [5] ; Trokey v. United States Cartridge Co., Mo.App., 222 S.W.2d 496, 502 [6]; Anderson v. Meyer Bros. Drug Co., 149 Mo.App. 554, 130 S.W. 829, 836 [5]. It is the policy of the law to encourage freedom of contract and peaceful settlement of disputes and a person not under disability or compulsion may release his rights for any consideration he decides to accept. Vondera v. Chapman, 352 Mo. 1034, 180 S.W.2d 704, 705 [4]. In the circumstances of this case, the consideration cannot be said to be inadequate or unfair.

The remaining point in Mrs. Croker’s appeal is that the judgment is “legally unenforceable” because her husband was not a party to it. In the damage suit No. 14259-E, Mrs. Croker alleged that she “has become obligated for medical, hospital and physicians’ treatment in the amount of Twenty Five Hundred ($2,500.-00) Dollars and will in the future become further so obligated”. In his suit for services and expenses, Mr. Croker alleged that “the value of the medical and hospital services plaintiff has expended and became liable for is now $5,000.00 and the nursing services to the extent of $1,500.00”. Mrs. Croker infers that a wife cannot sue to recover the expenses incurred by reason of her injuries and that the judgment is ineffective unless the husband is joined in the suit. She cites cases where a husband and wife have sued for and recovered their respective claims in the same action and where the husband has been held to be primarily liable for his wife’s medical and hospital services. The argument the appellant makes goes only to the amount of the damages and not to the right to sue separately. A married woman by contract may obligate herself personally to pay for services for which her husband is primarily liable. Section 451.290 RSMo 1959, V.A. M.S.; Skillman v. Ballew, Mo.App., 27 S.W.2d 1036, 1039 [9]. The assignment is denied.

Next we have for consideration the issues presented by the appeals of the defendants Consolidated and Hamilton. The question presented is whether the attorneys Farrell and Barnhart were representing Mr. Croker as well as Mrs. Croker on December 7, 1959, and were authorized to negotiate a settlement of his claim. In an equity action, it is the duty of the appellate court to review the evidence and reach its own conclusions as to the facts and, in determining the weight and sufficiency of the evidence, it will give deference to the findings of the trial court where proper. Anderson v. Abernathy, Mo., 339 S.W.2d 817, 818 [1]; Rosenbloom v. Grossman, Mo., 351 S.W.2d 735, 736 [2]; Cruwell v. Vaughn, Mo., 353 S.W.2d 616, 624 [7]. We will briefly review the pertinent evidence on these issues.

Mr. Farrell testified that Mr. Croker employed him by an oral agreement on June 10, 1958, after which Mr. Farrell went to the hospital and obtained a written contract from Mrs. Croker. On June 11, 1958, Mr. Farrell wrote a lien letter to Consolidated Service Car Company notifying it of his employment in this fashion: “I have been retained by Mr. and Mrs. Croker to represent them in their claim against you * * This is significant because it is a written declaration made prior to this controversy. An adjuster for Consolidated testified that Mrs. Croker told him that Mr. Farrell represented her and her husband when the adjuster talked to her at the hospital on June 10, 19S8. Reverend Williams did not listen to either of the conversations between Mr. Farrell and the Crokers on June 10, but his impression from what Mr. and Mrs. Croker said later was that they had employed Mr. Farrell. Mr. Croker was present at the December 5, 1959, conference at Mr. Barnhart’s office and we are convinced from all of the evidence that settlement procedures and authority were discussed. If Mr. Croker had not authorized his assent, it is reasonable to expect that either Mrs. Croker or the attorneys would have talked to him before the settlement agreement was concluded. Thereafter, according to Mrs. Croker’s testimony, she and Mr. Croker worked out together the wording of a letter to Mr. Farrell which asked for a written release of Mr. Croker’s claim as well as her own.

An attorney’s authority to compromise his client’s claim may be established from circumstances and it is not necessarily dependent upon direct and affirmative evidence. Kahn v. Brunswick-Balke-Collender Co., Mo.App., 156 S.W.2d 40, 43 [10]. If Mrs. Cróker and the attorneys were not authorized by Mr. Croker, it is reasonable to think that Mrs. Croker would have so declared at least when Mr. Barnhart dictated the agreement to the court reporter. Granting that her failure to speak up would not create authority where none existed, it does tend to destroy her testimony that Mr. Croker had not granted authority to Mrs. Croker and the attorneys. Moreover, the first objection the Crokers made to the settlement did not embody a claim that there was no authority to settle Mr. Croker’s claim but was on the ground that they wanted more money. Nor was lack of authority claimed at the time the Crokers jointly composed the letter to Mr. Farrell. The claim of lack of authority appears to have been first made in September 1960 in Mr. Croker’s answer to the defendants’ counterclaims seeking specific performance. In these circumstances the contention appears to be an afterthought. Furthermore, the evidence tends to demonstrate that Mrs. Croker was the dominant member of the family. The transcript shows that during the trial of this case it was necessary for the court to admonish her not to signal answers to Mr. Croker while he was testifying.

In negotiating and recommending the settlement, Mr. Farrell and Mr. Barn-hart were acting in accordance with Supreme Court Rule 4.08, V.A.M.R., which provides: “A lawyer should endeavor to obtain full knowledge of his client’s cause before advising thereon, and he is bound to give a candid opinion of the merits and probable result of pending or contemplated litigation. * * * Whenever the controversy will admit of fair adjustment, the client should be advised to avoid or to end the litigation.” The agreement to compromise should not be disregarded except for good cause shown. Supreme Court Rule 4.25 in part provides: “As far as possible, important agreements, affecting the rights of clients, should be reduced to writing; but it is dishonorable to avoid performance of an agreement fairly made because it is not reduced to writing, as required by rules of Court.” If the settlement agreement was fairly made and deemed to be in the best interest of their clients, Mr. Farrell and Mr. Barnhart properly insisted that it be performed.

We are not impressed by Mr. and Mrs. Croker’s denials that Mr. Croker authorized the settlement. Their testimony was sometimes vague and contrary to established facts and common experience. At other times there was no recollection at all. On the other hand, the evidence in support of the validity .o-f the settlement agreement and its binding effect ,on .the parties is co-, gent, consistent and convincing. Our conclusion is that the settlement agreement dictated into the record on December 7, 1959, was valid and binding on Mrs. Croker and Mr. Croker, jointly and severally, as well as upon the defendants Consolidated and Hamilton. Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255, 257 [3].

Since the settlement contract is valid and its terms are clear and complete, the defendants Consolidated Service Car Company, Inc., and Mrs. Josephine E. Hamilton are entitled to have it specifically performed. Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255, 259 [16]; Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751, 755 [12]; Ragan v. Schreffler, Mo., 306 S.W.2d 494, 499-500 [13].

One of the trial court’s findings was that Mrs. Croker was struck and injured “as the result of a. collision between two automobiles owned and negligently operated by Consolidated' Service Car Company, Inc., and Josephine E. Hamilton”. The negligence of the defendants and their responsibility for the operation of the vehicles were hot at issue in this equity suit and no evidence was offered directly on the subjects. The finding may not be of any consequence in view of the conclusions we have reached, but in order to avoid further ques-tionsj the finding relating to negligence and agency should be eliminated from the decree.

The decree is affirmed in part and reversed in part. That portion of the decree finding that the judgment of $17,000 entered on December 8, 1959, is binding on Mrs. Croker is affirmed. That part of the decree .finding in favor of Mr. and Mrs. Croker and against the defendants Consolidated and Hamilton on their counterclaims is reversed and the cause is remanded with directions to grant the relief prayed for by the defendants Consolidated and Hamilton against Mr.-and-Mrs. Croker. The trial, court is further authorized and directed to make such further orders or decrees as are necessary and proper to complete the settlement consistent with the views expressed herein.

All of the Judges concur.


author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. Arthur Leslie PRICE, Appellant.
    No. 49043.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.

      Cecil Block, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jack E. Koslow, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

By an amended information filed in the Circuit Court of St. Louis County defendant was charged with burglary in the second degree under § 560.070 RSMo 1959, V.A. M.S., of a store operated by Anchor Lumber Company, Inc., a corporation, located at 9760 St. Charles Road, Breckenridge Hills, St. Louis County. The information, invoking the provisions of the habitual criminal act, § 556.280, also alleged two prior felony convictions of defendant. Trial to a jury resulted in a verdict finding 'him guilty of burglary as charged. The court, after a hearing held out of the presence and hearing of the jury, found that defendant had also been convicted of and imprisoned for the prior felonies alleged in the information. Following the overruling of defendant’s motion for new trial, the court assessed his punishment at imprisonment in the custody of the Missouri Department of Corrections for a term of nine years. He was then granted allocution and the court, finding that he had failed to show legal cause why sentence should not be pronounced as assessed in accordance with the verdict and the punishment assessed by the court, rendered judgment accordingly.

Counsel, who had represented defendant at all of the proceedings in the trial court, shortly thereafter died. The transcript was approved by another attorney for defendant, but no brief has been filed in his behalf in this court. We, therefore, review all of tire assignments of error validly set forth in the motion for new trial as required by S.Ct.Rule 27.20 and the portions of the record required by S.Ct.Rule 28.02, 4 RSMo 1959, pp. 4923 and 4925, 1 V.A.M.R., pp. 207 and 235.

Assignment No. 5 is that the court erred in refusing to sustain defendant’s motion for a verdict of acquittal at the close of all the state’s evidence. The record shows, however, that the motion was filed at the close of all of the evidence and we, therefore, so treat it.

The assignment requires a fairly extended statement of the evidence. It warrants a finding of the following facts. Anchor Lumber Company, Inc., hereinafter referred to as the “lumber company”, is located near the southwest corner of the intersection of St. Charles Road, an east-west street, and Royalton Avenue, a north-south street. The store and office, facing north, is about 50 feet south of St. Charles Road and 30 to 32 feet west of Royalton. There are three entrances into the building, one on the east facing Royalton, one on the north facing St. Charles Road, and one on the west not facing, it seems, any street. There is a parking area on all four sides of the building. The yard is partially fenced, but the entrances thereto are guarded only by movable “sawhorses”. Five strong floodlights, with sealed beams, affixed to the building, light the entire area around the east, north, south and west sides of the store. Fluorescent lights inside the store keep it lighted, so that the interior can be seen through plate glass windows in the building. All of these lights, inside and outside the building, are always on at night. The store is stocked with paints, hardware, saws, locks and hinges and other supplies, such as are sold in connection with the lumber business.

About 6:30 on the evening of March 12, 1961, Harold J. Schaeffer, president of the company, closed the premises, at which time he locked the three entrance doors to the store. On the next morning, after being summoned by one of the employees, Mr. Schaeffer came to the store. A check of the entrance door on the west side of the building showed that it had been broken open. There were “jimmy” marks on the door and doorjamb. Wood was split away from the top and bottom of the lock and the “keeper” was bent. A crowbar, which Mr. Schaeffer had not seen when he locked the west door to the store on the night of the burglary, was found lying three or four feet inside the broken door.

Shortly prior to midnight on March 12, 1961, Hans Henning, a member of the Breckenridge Hills Police Department, wearing a police uniform, was on duty in an unmarked patrol car. Driving east on St. Charles Road, he turned left and proceeded south on Royalton. As he did so he noticed a light colored automobile parked on the east side of the street, with its lights turned off, in which two men were sitting. He passed the parked car and continued on south to the next street. There he made a U-turn, drove back north on Royalton with his car lights turned off and stopped about 100 feet to the rear of the parked car, which about that time moved forward along the east side of Royalton to St. Charles Road and then backed up and came to a stop, with its lights still off, opposite the east entrance to the lumber company. The man sitting on the right side of that car got out of it, walked around in front of it and went across Royalton toward the lumber company premises. He was carrying a “bar or stick”. Henning, with his car lights off, released his brakes and permitted his car to roll slowly down a decline on Royalton at that point to within 10 to 15 feet behind the parked car and stopped. Henning wrote the license number of that car, AA9-731, in a book which he carried. For a few seconds Henning lost sight of the man as he approached the lumber company store. But then looking toward the store he saw through a plate glass window of the store a man inside the store with a “crew” haircut and wearing a black jacket. That man, crouched down, was walking toward the rear of the store. At that moment the driver of the car parked 10 to 15 feet in front of Henning’s car, turned his head and started his car motor. Henning got out of his car, called to the man in the car to stop and told him that he was under arrest. The car however moved forward and Hen-ning, looking again toward the store saw the man whom he had seen inside the store coming around the outside rear thereof, headed toward the car from which he had emerged as it stood parked on Royalton. Henning told him to stop. The driver of the car from which that man had emerged had not yet gotten away and Henning again called to him to stop, hut he “gunned his motor and took off” toward St. Charles Road. Henning fired a warning shot into the air and, as the car reached St. Charles Road, Henning fired one shot into it. As it turned right onto St. Charles Road, he fired into it twice more, but it continued east on St. Charles Road. The man whom he had seen come from inside the building and who was walking toward Royalton hesitated momentarily, stopped and submitted to arrest by Henning. It was the defendant, Arthur Price. Henning then, by radio, called for assistance. Before the other officers arrived, Henning, with defendant in custody, went to the west door of the store, saw that it had been “forced” and saw a crowbar on the inside of the store about four feet from the door. He placed handcuffs on defendant. When two Overland policemen arrived, Henning and the officers took defendant to the Breckenridge police station.

Later that day an aluminum plate with a hole bored into it was placed around the door at the point where it had been damaged and the “keeper”, a flat piece of metal with a hole in it which fits into the frame of the door, was put into place. On April 6, 1961, the aluminum plate was removed and photographs of the door were taken which, the evidence showed, accurately portrayed the damage done to the door in forcing it open. Four of these photographs were admitted into evidence.

On the day following the burglary, Hen-ning received a call to “investigate” an automobile and found a light blue Ford car. There was a bullet hole in its trunk, a similar hole on its right side window and a “gouge” made by a deflected bullet on the chrome trim of the right door. The license number on that car was the same as Hen-ning had written in his book on the night of the burglary, to wit: AA9-731. That license, as shown by the records of the Missouri Department of Revenue, Motor Vehicle Division, was issued in the City of St. Louis to defendant Arthur Price.

No evidence was introduced in behalf of defendant, other than that of his mother, who stated her relationship to defendant, made a few statements having no bearing whatever on the issues in the case, and then left the stand.

The mere statement of the evidence above set forth demonstrates that a submissible case of the burglary of which defendant was charged and found guilty was made.

The first assignment asserts error in the admission of State’s Exhibits “A” to “H”, inclusive, which were photographs of the broken door and doorjamb. (Actually, only four of these eight exhibits were admitted in evidence and shown to the jury.) The contention is that there was no proof that the door was in the same condition as found following the burglary. Defendant is mistaken in that assertion. Both Officer Henning and another officer who arrived at the scene shortly after Henning discovered the burglary testified that the pictures accurately showed the damage done to the door and doorjamb when they first had viewed it. The pictures were admissible. State v. Finnell, Mo., 280 S.W.2d 110, 112 [3].

The second assignment is that the court erred in admitting into evidence the crowbar found near the broken door on grounds that the evidence did not show that it was not the property of the lumber company. Obviously, proof of ownership of the crowbar or from whence it came was immaterial. The materiality of that evidence was that the presence of the crowbar near the broken door, which, as the oral testimony showed, bore “jimmy” marks, tended not only to establish an element of burglary, i. e., the forcible breaking of the locked door; but it also tended to show the fact that defendant,' who was discovered inside the building, had broken the door by use of that crowbar. The contention is overruled.

The third assignment is that the court erred in admitting evidence that Officer Henning fired several shots at the Ford car, bearing license No. AA9-731, which was driven away from near the scene of the crime, without showing any connection between the driver and the defendant. The fourth assignment is that, inasmuch as defendant was detained at the scene of the crime, the court erred in admitting evidence that Officer Henning found the car the following day with bullet holes in it, because there was no showing of any connection between the automobile and defendant. These two assignments ignore other relevant evidence: that defendant, seated in the parked car with another person, with the lights off, emerged from that car carrying a bar or stick; that he crossed Royalton toward the lumber company store, entered that store, and left behind him a broken door, doorjamb, and a crowbar adjacent thereto; and that he walked back toward the car from which he had emerged, which bore his own license number, AA9-731, as taken down that night by Henning, and which car also showed bullet marks corresponding to those fired by Henning at the car that night. This evidence so clearly constitutes cogent and convincing evidence of defendant’s physical participation in the burglary of which he was charged as to require no further discussion. Both assignments are overruled.

The sixth assignment alleges error in “giving and reading to the jury each and every instruction offered by and on behalf of the State, for the reason that the said instructions were misleading, conflicted with each other, tended to invade the province of the jury, and shifted the burden of proof from the State to the defendant.” The court gave four instructions, all of which are in conventional and approved form. None of them shifts the burden of proof from the State to the defendant. None of them is misleading or in conflict with any other; nor does any of them invade the province of the jury. Moreover, the assignment wholly fails to comply with the mandatory provisions of S.Ct.Rule 27.20, in that it is too general in its terms to present anything for review. State v. Reese,, 364 Mo. 1221, 274 S.W.2d 304, 309; State v. Johnstone, Mo., 335 S.W.2d 199, 205. The assignment is overruled.

The seventh assignment is that “the court.erred in failing and refusing to instruct the jury on all the law involved in the case, such as the malicious destruction of property, trespassing, etc.” There was not a scintilla of evidence in this case that defendant committed a mere malicious destruction of or trespass upon defendant’s’ property. All of the evidence was that he either burglariously broke and entered the lumber company store or was not guilty of any offense. Furthermore, the burglary here charged does not include the lesser offense of malicious destruction of property or trespass. State v. Drake, Mo., 298 S.W.2d 374, 377; State v. Richardson, Mo., 343 S.W.2d 51, 55. The contention is denied.

The eighth and final assignment of error is that “the Court erred, ⅜ * * in not having the sheriff or bailiff of the court sworn to keep the jury together in some private or convenient room or place and not permit any person to speak with or communicate with them nor do so himself unless by order of the Court, in violation of Section 546.240 R.S.Mo., and [in] failing and refusing to declare a mistrial upon the timely request of the defendant when this. violation of the law was called to the Court’s attention.” Section 546.240, in pertinent part, reads:

“When the argument is concluded, the jury may either decide in court or retire for deliberation. They may retire under the charge of an officer who, in case of a felony, shall be sworn to keep them together in some private or convenient room or place and not permit any person to speak or communicate with them, nor do so himself, unless by order of the court, or to ask them whether they have agreed upon their verdict; and when they have agreed, he shall return them into court, or when ordered by the court.”

The record does not show whether the sheriff was sworn when the argument was concluded to keep the jury together as required by the above section. But the record also fails to show that any failure to so swear the sheriff, if it be the fact that he was not so sworn, was ever called to the attention of the court as alleged in the motion for new trial. The first mention of the allegation shown in the record with reference to any failure to so swear the sheriff is the unverified statement in the motion for new trial. Neither was any evidence adduced in support of the allegation made in the motion for new trial. On the other hand the record does show that following argument of the cause, the jury retired to the jury room to begin its deliberations at the hour of 12:25 p. m., and at the hour of 12:55 p. m. returned into open court its verdict (omitting caption): “We, the Jury, in the above-entitled cause, find the defendant guilty of Burglary in the Second Degree.”

In State v. Stidham, Mo., 258 S.W.2d 620, 622, this court said of more aggravated situation than here presented: “The appellant did not offer to prove the separation of the jury. Nothing is better settled than that unverified allegations in a motion in a criminal case do not prove themselves. State v. Henderson, 356 Mo. 1072, 204 S. W.2d 774.” Under the circumstances here shown, we find nothing whatever to establish the allegations of'the motion for new trial. To the contrary, the short period of deliberation tends rather to indicate that the jury was together during its deliberations as required by statute. The contention is denied.

The amended information sufficiently charges the crime of which defendant was found guilty, § 560.070; the verdict is sufficient in form and responsive to the issues. The punishment assessed is within the limits provided by law, §§ 560.095, 556.-280; and the judgment is in due form of law.

The judgment is affirmed.

All of the Judges of the Division concur and HUNTER, Special Judge, concurs.

      . All statutory references hereto are t.o this revision.