text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, Plaintiff-Respondent, v. Harry J. LIST, Irene D. Moore, James C. Minks, Florence E. Smith, Doyle Rushton, Defendants, Harry J. List, Defendant-Appellant.
    No. 24762.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1968.
    Michael F. Mahoney, Frank L. Cohn, Kansas City, for defendant-appellant.
    William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, for plaintiff-respondent; Blackwell, Sanders, Ma-theny, Weary & Lombardi, Kansas City, of counsel.
   CROSS, Judge.

This is an action for a declaratory judgment brought by plaintiff insurance company against five defendants, named as follows: Doyle Rushton, owner of an Oldsmobile automobile and the named insured in a policy of automobile liability insurance issued by plaintiff; Irene D. Moore, who, while driving Rushton’s car, had a collision with another automobile, on June 10, 1965; Florence Smith, a passenger riding in the Rushton car at the time of the collision and a claimant for damages for injuries; James C. Minks, owner and driver of the other automobile involved in the collision who also claimed damages; and Harry J. List, a passenger in the Minks’ automobile who had filed a suit for personal injury damages.

Plaintiff in its petition alleges that a policy of liability insurance was issued by it to defendant Rushton; that Rushton’s automobile was involved in a collision with the Minks’ automobile while being operated by defendant Irene D. Moore; that defendant Harry J. List has filed suit against defendant Moore for damages for personal injuries allegedly resulting from the collision; that defendants Minks and Florence E. Smith also are asserting claims against defendant Moore as the operator of an automobile owned by defendant Rushton and insured by plaintiff; that the liability policy issued by plaintiff extends coverage to the named insured (Rushton) and to any other person using such automobile with the permission of the named insured, provided the actual operation thereof is within the scope of such permission. Plaintiff further alleges that a controversy has arisen as to whether at the time of the collision, defendant Moore was operating Rushton’s automobile with his “permission” as it is defined in the policy (so as to extend the liability coverage afforded by the “omnibus clause” to defendant Moore as an additional insured) and whether Rushton as the named insured gave plaintiff the “cooperation” required by the policy. It is plaintiff’s prayer that the court declare its rights and obligations in the premises.

The issues of fact thus raised were tried with the aid of a jury, as permitted by Section 527.090 V.A.M.S. At the conclusion of the evidence the trial court instructed the jury that “the issue of the cooperation of Doyle Rushton with the Hartford is withdrawn from the case.” The remaining issue, i. e., whether defendant Moore was operating defendant Rushton’s automobile with his permission, was submitted to the jury by Instruction No. 2 which told the jury their verdict must be for plaintiff Hartford Accident & Indemnity Company if they believed that defendant Irene Moore Mooney did not have express permission from defendant Doyle Rushton to use his automobile at the time of the accident on June 10, 1965. The jury returned its verdict as follows: “We, the undersigned jurors, find the issues for the plaintiff.” Upon this verdict the trial court entered the following judgment:

“WHEREFORE, it is ordered and adjudged by the Court that the issues before this Declaratory Judgment only be found in favor of the plaintiff, Hartford Accident and Indemnity Company and against the defendants and be it further declared as a fact that the Defendant Irene Moore Mooney did not have express permission from Defendant Doyle Rushton to use his automobile at the time of the accident on June 10, 1965; all of this to be a final order as to the aforesaid at defendants’ costs, and execution will issue therefor.”

Appeal from the judgment is prosecuted solely by defendant List, sometimes hereinafter referred to as appellant. The questions presented are whether plaintiff’s counsel made improper and prejudicial remarks in his opening statement and closing argument to the jury, and whether plaintiff’s verdict directing instruction was erroneous.

The above mentioned collision was the culminating event of a brief acquaintance between defendants Rushton and Moore, both of whom were called by plaintiff as witnesses. From their testimony we learn the nature of their association and the facts which gave rise'to this suit. Rushton identified himself as a single man who was employed as a professional over-the-road truck driver. He met Mrs. Moore about ten days prior to the collision at a bar in Kansas City. She was introduced to him by a mutual friend as a woman desiring employment at housekeeping work. After this meeting Mrs. Moore went to Rushton’s home several times (the exact number not being clearly shown) and did some housecleaning. She denied that their relationship was “anything more than that”. On one occasion she was an invited dinner guest at Rushton’s home. On another occasion Rushton took Mrs. Moore to the home of .one of her relatives. As best we can determine from the record, Rushton and Mrs. Moore were in each other’s company six different times.

There is evidence that prior to the collision Mrs. Moore had used the vehicle on two occasions — both times with Rush-ton’s express consent, and for the purpose of purchasing “stuff for the housecleaning” at the shopping center. Rushton testified that on each of these occasions he handed the car key over to her. The first time she used the car was at noon on an unspecified date. Her second use of the car was one night after she had ridden with Rushton to his place of employment. Rush-ton testified that on that occasion he told her to take the car for the specific purpose of getting some household articles and that she could use it that night. She kept the car in her possession overnight and next morning returned to Rushton’s place of employment and picked him up.

There is direct conflict between the testimony of defendant Rushton and defendant Moore as to the course of the evening prior to the collision, and the circumstances attending Mrs. Moore’s use of Rushton’s automobile that night. According to Rush-ton, Mrs. Moore came to his home early in the evening in her own car and did some housecleaning work. She cleaned the kitchen and dining room, for which work he paid her $5.00. When she prepared to leave the house, Rushton was in his back bedroom doing some book work. She “hollered” to him from the front part of the house and told him she had finished and was leaving. Rushton told her to take her pay out of his pocketbook on the table. Nothing was said about her taking his car and he first learned that she had taken it at about four o’clock on the following morning when he was notified of the col-lison by defendant Florence Smith. Rush-ton further testified: “Q. And on this particular evening, how did she happen to have your car, do you know? A. The only way that she could have taken it, she taken it without my permission.” “Q. Do you know when she left the house that she has been cleaning? A. No, I don’t, because I was busy doing some bookkeeping in my bedroom.” “Q. How did she get over to your house ? A. She came in her car. Q. And at that time were you under the impression that she was leaving in her car? A. At that time I was, definitely. Q. Did you go outside to see if she did leave? A. I did not. Q. Did you know or recognize that she was taking your car when she left? A. I did not.” “Q. Do you know where the lady got the key to your car ? Do you know where the key was left? A. The key was left on my dining room table. Q. Was that your customary place of putting it? A. All of the time. Q. Had you ever given this lady permission to come in and pick the key up and take the car? A. No, sir. Q. On those other two occasions that you let her use the car how did you go about handing the key over to her ? A. I handed it to her. Q. So it was never a matter of just taking the key and taking the car? A. That is true.” He had never given her “blanket permission” to use the car and there had never been any “implication” on his part to her that she could use the car whenever she liked. Rushton specifically denied that he had given Mrs. Moore his credit card; also that he had told her that he would take her car to a service station and have it repaired and that she could meanwhile use his car.

Mrs. Moore’s version of the events that transpired on the evening in question is as follows: She drove her own car to Rushton’s house, arriving there about 9 or 10 o’clock P.M. She “went out there to trade cars. That was why I went out there.” Her car being in need of repair, Rushton had told her that he would have it fixed at the garage in the morning and when that was done she could come back and pick it up. That was “the purpose of me being out there”. She did no housecleaning on that occasion but just traded cars. She stayed at Rushton’s house for an hour or two engaged in conversation, and left there about eleven o’clock. She then got into Rushton’s car and drove it away. She got the key to it from Rushton. “He handed the key to me. —He give me the key and he said that he would have my car taken to the garage in the morning and when it was fixed I could come and pick up my car and drive my own.” Rushton paid her no money that night and he had previously paid her for all the work she had done before. It was her testimony that Rushton “told me if I needed any money to get it”, but that “I didn’t take no money.” After driving away with Rushton’s car, Mrs. Moore later picked up Florence Smith, her aunt, and proceeded to drive her over to see her estranged husband. While so operating Rush-ton’s automobile, she collided with the Minks automobile at approximately the hour of 1:40 A.M.

In appellant’s first point the trial court is charged with error in refusing to declare a mistrial and discharge the jury because of improper and prejudicial statements made by Hartford’s counsel in his opening statement to the jury. . The remarks complained of were as follows: “Now, the automobile, according to the police report at the Hartford Company, was being operated at the time by a woman known as Irene D. Moore —M-o-o-r-e. Mrs. Moore goes by the name of Cindy. At the time of this matter she was a married woman, but her husband was in the penitentiary in connection with a burglary conviction.” Counsel for appellant objected to the quoted remarks on the ground they were extraneous to the issues, were made for the purpose of discrediting defendant Moore and her testimony, and were calculated to prejudice the jury against defendants. The trial court sustained the objection and instructed the jury to disregard the remarks of counsel but overruled appellant’s motion to discharge the jury. Additionally the court cautioned plaintiff against pursuing the subject matter of the remarks when introducing evidence.

Considered in the light of the entire record, the remarks in question were in reference to matters which had no bearing on the issues being tried and were improper and prejudicial in that they tended to cast an unfavorable reflection upon the defendant Moore and the credibility of her testimony. It is well settled that the trial court is vested with a wide discretion to deal with improprieties of such nature occurring in the course of trial, and that an appellate court will not disturb the trial court’s exercise of that discretion in the absence of a showing that it has been abused. This rule was concisely stated by the Supreme Court in Hancock v. Kansas City Terminal Ry. Co., 347 Mo. 166, 146 S.W.2d 627, l. c. 630 (cited in 5A C.J.S. Appeal & Error § 1611, p. 113), in language here quoted: “Of course, when false statements are deliberately made to deceive, or there is improper matter injected for the purpose of arousing passion or prejudice, which it seems reasonable to believe did mislead or improperly influence the jury, a verdict so induced will not be permitted to stand. However, because trial courts have such an obvious advantage for the determination of this question, appellate courts usually leave this matter to their discretion and defer to their judgment.”

The case of American Displays v. E. T. Swiney Motors, Inc., Mo.App., 240 S.W.2d 732, is direct authority on the instant question. During cross-examination of defendant Swiney, opposing counsel inquired whether his former business associate had served a term in the penitentiary. The trial court sustained objection to the question and admonished the jury to disregard it, but refused to declare a mistrial and discharge the jury — exactly as was done in the instant case. The reviewing court held that although the obvious purpose of plaintiff’s counsel in bringing out the fact that defendant’s former associate had served a penitentiary term was to prejudice the jury against defendant, the trial court’s rulings and corrective action taken were within its discretion and hence should not be disturbed. Pertinent language of the opinion is as follows: “However the saving circumstance is the fact that the court unequivocally sustained the objection to the question .and thereby put the stamp of its solemn disapproval upon such line of inquiry. It indulged in no hesitation when it was called upon to rule, but immediately declared the impropriety of such interrogation. In other words, the court exercised its discretion, and exercised it in defendant’s favor. To what length it should go was a matter it alone could best determine from what it was in a position to observe of any harm that had been done. It concluded that the episode could be corrected by a firm admonition to the jury to disregard the question, and that the occasion did not call for the granting of a mistrial. Unless we could clearly say that the court abused its discretion in refusing a mistrial, there would be no warrant for our interference; and the record discloses no such situation.”

We adopt the reasoning set forth in the foregoing quoted authority and rule that the trial court’s refusal to discharge the jury under the circumstances shown was not an abuse of judicial discretion and did not constitute reversible error. In arriving at this decision, we have examined and considered the cases cited and relied upon by appellant but we have not found them to be persuasive authority to support his position on the question presented.

In appellant’s second point it is contended that the trial court erred in failing to declare a mistrial and discharge the jury when plaintiff’s counsel in his closing argument to the jury made allegedly improper remarks appealing to the jurors’ self interest. The remarks complained of were as follows:

“ ‘Why wouldn’t the Hartford want to defend this case?’ We base the premium in this case, which is $33.00, as I recall, on our experience. We can take and go out and defend all of these cases where it looks like there is no insurance in this case and somebody is going to try to find an insurance company to tie onto, but we are going to have to raise our rates, and if we raise our rates the people pay. High costs of insurance would result if the Hartford Insurance Company were required to defend multiple lawsuits.”

Counsel for appellant objected to the quoted remarks and the trial court effectively overruled the objection by directing plaintiff’s counsel to “Proceed”.

Appellant now argues to this court that the remarks objected to “constituted a direct appeal to the self interest of the members of the jury, because, essentially, what the jury was being told was that if they found against the plaintiff, that their own individual insurance premium likely would be raised”, and that the action of the trial court “stamped the alleged conduct of plaintiff’s counsel as proper.”

Plaintiff’s response to this contention is that appellant’s counsel in prior argument to the jury first brought up the subject of higher premiums by referring to the constantly rising cost of insurance premiums, and by asking, in the first instance, the question, “Why wouldn’t the Hartford Insurance Company * * * want to defend” the damage suit appellant had brought against defendant Moore * * * instead of prosecuting a declaratory judgment action? Therefore, says plaintiff, its counsel was legitimately entitled to make the argument of which appellant complains because it was invited by and made in answer to appellant’s previous argument, pertinent portions of which are here quoted:

“Why would Mr. Rushton say this? If he was very embarrassed you can see why. But you know as you go to apply for liability insurance the cost of insurance goes constantly up and they charge points against you when your car is in an accident and it, the policy, says ‘Any driver,’ and when he goes to apply for insurance again his insurance will be higher. That is something for you to consider as to motive.”
“Why wouldn’t the Hartford Insurance Company just want to defend his claim? Gentlemen of the jury, if you decide that the Hartford Insurance Company owes coverage, you are not saying that they have to pay any money. You are just saying that they have to defend the lawsuit brought by my client. We are not here asking the Hartford Insurance Company in this case to pay any money. There will be another lawsuit, the one that I filed for my client, who was thrown out of his car, and the jury in that case will decide whose fault the accident was and if the jury in that case decides that this Moore woman was at fault that is another case. If they decide that she was not at fault the Hartford doesn’t have to pay anything. But this, Gentlemen of the Jury, is a contract. This insurance policy is a contract, and he paid his money for the contract, and it says in there that they are supposed to defend cases brought against their insured, and under the definition of insurance it is any person using such automobile under the name of the insured so this Moore woman comes under the name of the owner of that contract because he was insured under that contract.”

The foregoing quoted statements made by appellant’s counsel were reasonably susceptible of being understood by the jury as argument to the effect (1) that the Hartford raised its premium rates from time to time according to the incidence of casualties suffered by its insureds; (2) that consequently it was Hartford’s duty to have defended the multiple lawsuits arising from the collision instead of testing its legal obligation to do so by the instant declaratory judgment action, and (3) that Hartford would not have to pay out any money even if the jury found the issues in favor of defendants. Such argument was improper because it was not directed to any legitimate issue in the case, because it first raised the extraneous issue of rising premium rates, and because it prejudicially suggested to the jury that Hartford was remiss in its duty under the policy in seeking a declaration of its contract rights and obligations instead of defending the damage suits that arose from Mrs. Moore’s use of its insured’s automobile.

Missouri courts have consistently observed the general rule that improper argument to the jury can not be made the basis for error when it has been provoked by the remarks of counsel for the adverse party. The principle underlying this rule is that the party whose counsel pursues improper argument and invites a reply is estopped to complain of the reply argument. The permissible scope of such answering argument is largely within the discretion of the trial court. 27 Mo.Digest, Trial,

It may be conceded that argument by plaintiff’s counsel on the subject of increasing insurance premium rates would have been improper and objectionable in the absence of any remark to provoke it. But that is not the setting in which plaintiff’s counsel made his argument. Appellant’s counsel had previously injected the subject of increasingly higher costs of insurance into the case and, in connection with it, had directly challenged plaintiff for an explanation of why it had chosen to prosecute a declaratory judgment suit instead of defending all the damage suits involved. It then became plaintiff’s right to make a fair retort to those improprieties, and to explain to the jury that insurance rates are based on experience, that the defense of lawsuits entails money cost, and that if plaintiff were required to defend all lawsuits regardless of its contract obligation to do so, rates would have to rise accordingly. Plaintiff’s retaliatory argument to that effect was well within the liberal latitude our courts have allowed counsel in replying to provocative remarks of an adversary. Con-testible v. Brookshire, Mo., 355 S.W.2d 36. Cases cited by appellant are readily distinguishable on the facts presented and are not persuasive.

In overruling the objection, the trial court acted within its allowable discretion and committed no error.

Appellant’s remaining point is that the trial court erred in giving plaintiff’s Instruction No. 2 which reads as follows: “Your verdict must be for plaintiff Hartford Accident & Indemnity Company if you believe that defendant Irene Moore Mooney did not have express permission from defendant Doyle Rushton to use his automobile at the time of the accident on June 10, 1965.” (Not from MAI). Appellant insists the instruction is erroneous in that it misstated the law respecting “the permissive use of an automobile” and disregarded evidence from which the jury could have determined that Mrs. Mooney was operating Rushton’s automobile with his implied permission when the collision occurred and consequently was a person “insured” under the terms of Rushton’s policy.

The pertinent policy clause reads in part as follows: “Under Coverage A — Liability * * * the following are insureds: (a) with respect to an owned automobile, (1) the named insured, (2) any other person using such automobile with the permission of the named insured * * * ”,

Missouri decisions uniformly hold that such “permission” may be either express or implied. In Hanover Insurance Company v. Abchal, Mo.App., 375 S.W.2d 605, the court said:

“There is no question that the permission provided for in the omnibus clause can be either express or implied from the conduct of those in position to give it. But as a general'rule the person claiming such permission must prove it, and no implied permission can arise merely because someone obtained possession of the property and used it without the knowledge of the named insured. Varble v. Stanley, Mo.App., 306 S.W.2d 662; McKee v. Travelers Insurance Company, Mo.App., 315 S.W.2d 852. Whether permission be expressly granted or impliedly conferred, it must originate in the language or conduct of the named insured or someone having authority to bind him in that respect. Hooper v. Maryland Casualty Company, 233 N.C. 154, 63 S.E.2d 128. Usually, an implied permission arises from a course of conduct of the parties over a period of time prior to the use in question. Alabama Farm Bureau Mutual Casualty Insurance Company v. Robinson, 269 Ala. 346, 113 So.2d 140.”

We do not find substantial evidence in the record of this case sufficient to have supported a jury submission of implied permission. In particular, there is no showing of “a course of conduct of both of the parties over a period of time prior to the use in question” involving any use of the automobile by Mrs. Moore with Rushton’s implied permission. It is indisputably clear from the evidence that she used the vehicle only twice before the collision, and that in both instances the use was with Rush-ton’s express consent and at his direction, and primarily involved his own purpose and benefit — the purchase of housecleaning supplies.

Furthermore, it was not contended on behalf of defendants in the trial of the case that Mrs. Moore took and used the car with Rushton’s implied permission or passive acquiescence. In presently arguing that Instruction No. 2 should have submitted that issue, appellant presents a theory entirely different from defendants’ trial theory. The evidence in its entirety, as it related to the use of the car on the particular evening, was confined to the question whether such use was authorized by Rushton’s express permission. On the one hand it was Mrs. Moore’s testimony that Rushton gave her express permission by giving her the key and telling her she could take and use the car. On the other hand Rushton not only denied that he had given her such permission and mechanical means to drive the car, but also testified that she took it without his consent or knowledge. Thus the only question for the jury to determine under that evidence was whether it should believe Mrs. Moore when she said that Rushton gave her the key and told her to take the car or whether to believe Rushton’s denial of those statements and his testimony that she took and drove the car without his permission.

In this situation the trial court properly narrowed the issue submitted by the instructions to the question of whether or not there was express permission. To have enlarged the submission by including an issue of implied permission would have given the jury leave to disregard and to contradict the testimony of the only witnesses who had knowledge of the circumstances bearing on the question. This, in our opinion, would have permitted the jury to reach a verdict, by speculation and conjecture, which would have been directly contrary to the testimony of each of the only two people who knew and testified what happened at the Rushton home on the night in question. It is basic law that the court shall instruct only on issues made by the pleadings and supported by the evidence, and that instructions must be within and no wider in scope than the pleadings and the evidence. 27 Mo.Digest, Trial, It is equally fundamental that an instruction is improper when it permits the jury to reach a verdict by speculation and conjecture. Putnam v. Unionville Granite Works, Mo.App., 122 S.W.2d 389.

We rule that Instruction No. 2 is not erroneous. This conclusion is firmly supported by two former decisions of this court. In Smith v. Sickinger, Mo.App., 221 S.W. 779, we ruled that the trial court properly refused an instruction which contradicted the evidence of both parties. And, in Clark v. Meriwether, Mo.App., 123 S.W.2d 603, we approved the trial court’s refusal of an instruction which presented a different theory than that upon which the case was tried.

The judgment is affirmed.

HOWARD-, P. J., concurs.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


source: Caselaw Access Project

author: HOWARD, Presiding Judge.

license: Public Domain

text:
    CITY OF KANSAS CITY, Respondent, v. Sharon STONER and Robert Stoner, Appellants.
    Nos. 24714 and 24715.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1968.

      Michael J. Drape, Knowlton & Drape, Kansas City, for appellants.
    Herbert C. Hoffman, City Counselor, Richard W. Mason, Jr., Associate City Counselor, Charles A. Lewis, City Pros., Kansas City, for respondent.
   HOWARD, Presiding Judge.

Each of the appellants was charged in Kansas City Municipal Court with stealing property of the value of $19.95 contrary to the ordinances of said city. Having been found guilty in Municipal Court, each appellant appealed to the Circuit Court where the two cases were tried together and both appellants again found guilty. Each has duly appealed to this court and the two appeals were consolidated by order of this court. Since the charges grew out of one transaction, the facts are the same and both cases may be disposed of in this one opinion. We shall refer to the parties as they appeared below.

On July 9, 1966, an employee of the Spartan-Atlantic, Inc., department store was guarding the door of the store in the absence of a policeman who normally performed such function. She observed the two defendants, husband and wife, enter the store and watched them go to the wig counter which was just inside the door. She observed the wife purchase a wig box which was put into a large bag. The two defendants then went into the men’s department where the employee observed the husband take five Banlon shirts from the rack where they were hanging, remove the store’s price tags, and put them in the sack with the wig box. The wife was holding the sack. The wife then started out the door while the husband stopped for a moment to look at other merchandise. The employee stopped the wife and stated she had some merchandise that had not been paid for. The wife-wanted to wait for her husband and she and the store employee did so. They were standing in the vestibule between the two sets of doors which go from the outside into the store. When the husband joined them, the wife advised him that the store employee desired to look in the sack and the husband told the wife to let the employee do so. When the sack was opened, the employee observed the five Banlon shirts. There was no cash register receipt for the shirts in the bag and the employee testified that if the merchandise had gone through the check-out stand, the cashier would tear off half of the ticket, leaving the other half showing the name of Spartan-Atlantic, Inc. The employee specifically testified that the shirts introduced in evidence were the same shirts that she found in the sack in the wife’s possession and were the same ones the husband had taken from the rack and placed in the sack held by the wife. Although requested by the employee, neither defendant produced a cash register receipt for these five Banlon shirts. The two defendants testified that they had purchased the five Banlon shirts, had then gone to their car where the husband remembered that he had forgotten to purchase a pair of bathing trunks for himself and started back into the store. The wife testified that she put all of her purchases into the one big bag while at the car and was unable to produce the sales receipt because it was misplaced in the repacking operation. She stated that she later found the receipt. Defendants testified that they then re-entered the store; that the husband selected a pair of bathing trunks and was standing in the •check-out line when he observed the store employee pushing his • wife around. The wife had started to the car instead of waiting for her husband to check out. The Ban-Ion shirts were priced at $3.99 each and defendants produced at the trial a sales receipt for five items at $3.99 each from Spartan-Atlantic, Inc., bearing the date of ■the offense, i. e. July 9, 1966.

After defendants were apprehended, they -were taken to the store office. The wife refused to allow the employee to inspect the -contents of her purse. A report was made and the police were called and the defendants were taken to police headquarters. The store employee testified that this occurred in the early afternoon and the defendants testified that it occurred sometime between 5 and 6 P.M. In any event, when they made bond and were released from police headquarters, the defendants returned to the parking lot of the store to get their car. Both defendants denied that they reentered the store and made a purchase of five items of $3.99 each after they returned from police headquarters. They maintained that the receipt was made before their arrest when they paid for the five Banlon shirts in question.

On the basis of this evidence, the Circuit Court sitting without a jury found each defendant guilty and imposed on each a fine of $19.65.

At the trial, the city introduced into evidence “The Revised Ordinances of Kansas City, 1956, as amended, Chapter 39, Section 750. — Stealing”. Section 39.750 of the Revised Ordinances of Kansas City, Missouri, 1956, denounced the offense of stealing without providing a penalty. Section 1.100 of these Revised Ordinances provides a general penalty for all activity declared to be unlawful or a misdemeanor. Punishment is set at a fine not to exceed $500.00 or imprisonment not to exceed one year, or both. On July 2, 1965, by Ordinance No. 31427, the Revised Ordinances of Kansas City, 1956, were amended by repealing Section 39.750, and enacting in lieu thereof a new section bearing the same number and covering the same subject. This new section defines “Property” and “Steal”. It contains other provisions and definitions and provides its own penalty section which calls for the same range of punishment as that contained in Section 1.100. At the trial, the city did not introduce into evidence Section 1.100 but, as heretofore pointed out, did introduce Section 39.750 as amended. It was this amended section which was in effect at the time of the offense here being considered and in view of the fact that this section now contains its own penalty provision, it was unnecessary to introduce the separate penalty section of the Revised Ordinances.

Defendants contend that the city failed to make a submissible case because they did not introduce the separate penalty section, this ignores the fact that the ordinance which was introduced contained its own penalty provision and was the ordinance in effect at the time of the offense. Under such circumstances, it is apparent that the ordinance actually introduced was complete in and of itself. It denounced the offense and provided the penalty for violation. The city’s case was complete in this respect. The case of Town of Canton v. Madden, 120 Mo.App. 404, 96 S.W. 699, cited and relied on by defendants, is not in point because in that case, the city had by ordinance declared certain activity to be unlawful but it had failed to provide any penalty for such unlawful activity. The other case relied on by defendants, City of St. Louis v. Vetter, Mo.App., 293 S.W.2d 140, concerns a charge against the defendant brought by the City of St. Louis under an individually specified and numbered ordinance which had been repealed before the offense was committed. In that case, the St. Louis Court of Appeals properly held that no conviction could be had under an ordinance which had been repealed before the offense occurred. This is no authority for the case at bar where the defendant is charged with a violation of a given section of a compilation of ordinances known as “Revised Ordinances of 1956”, and when the appropriate section of the revision, as amended, which was the ordinance in force at the time of the offense, was introduced in evidence without objection.

The defendants also contend that the city failed to make a submissible case because testimony was lacking as to the ownership of the Banlon shirts alleged to have been stolen. A reading of the transcript discloses that the employee who testified as a witness for the city specifically stated that she saw the defendant husband remove the Banlon shirts from the rack in the store, remove the store price tags therefrom, and place the shirts in the sack held by the wife who, in turn, attempted to carry them from the store. It must be remembered that ownership, like every other element of the offense of stealing, can be proven by circumstantial evidence. See State v. Brewer, Mo., 325 S.W.2d 16. This testimony of the employee witness was sufficient, if believed, to make a submissible case against defendants and each of them, for stealing the property of Spartan-Atlantic, Inc. The employee testified that at the time of the occurrence, she was an employee of and working in the store of Spartan-Atlantic, Inc., at a given address in the City of Kansas City, Jackson County, Missouri. The facts here are in no wise comparable to State v. Celmars, Mo.App., 399 S.W.2d 145, relied on by defendants, where no one saw the defendant take the merchandise; the officials of the store did not know the merchandise was missing, and the only evidence was the defendant’s possession of the allegedly stolen merchandise under suspicious circumstances and his statements and admissions in relation thereto.

The evidence as it has been heretofore summarized was amply sufficient, if believed by the trier of facts, as it obviously was, to make a submissible case and to support the trial court in finding each defendant guilty.

Finding no error, both judgments below are affirmed.

CROSS, J., concurs.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


text:
    STATE of Missouri ex rel. Wallace S. PARKER and Lester Williams, Appellants, v. Cole HENDRIX and James M. Halloran, Respondents.
    No. 24739.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1968.

      Charles C. Shafer, Jr., Kansas City, for appellants.
    Herbert C. Hoffman, City Counselor, Carrol C. Kennett, Asst. City Counselor, Kansas City, for respondents.
   HOWARD, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County, Missouri, quashing an Alternative Writ of Mandamus sued out by appellants. Both appellants are battalion chiefs in the Kansas City, Missouri, Fire Department. The controversy involves the manner of filling a vacancy in the office of deputy chief in the Kansas City Fire Department. The vacancy occurred on the retirement of Chester W. McGrury on July 22, 1965. Under date of July 12, 1965, procedures were commenced under the merit system of Kansas City, Missouri to fill this vacancy. On such date a “personnel requisition” was sent by the fire department to the personnel department to secure the certification of a roster of those eligible for appointment to this position. The roster certified by respondent Cole Hendrix, the Personnel Director of the City of Kansas City, to respondent James Halloran, Director of the Fire Department of the City of Kansas City, consisted of only three names. It is the contention of appellants that under the applicable provisions of the Charter of Kansas City, it was an absolute requirement that such roster consist of five names and that an appointment from a roster consisting of less than five names was and is void and illegal. Subsidiarily, appellants contend that if it is impossible to secure a roster of five names, the City cannot legally appoint anyone on a permanent basis to fill the position.

Under the normal procedures of the Personnel Department, there has been promulgated a job description for the position of deputy fire chief which sets out the nature of the work to be performed, examples of such work, required knowledge, abilities and skills and minimum training and experience requirements. Under this, any applicant for the position of deputy fire chief must have the following experience and training: “Graduation from a senior high school; and ten years of progressively responsible fire fighting and fire prevention work with the Kansas City, Missouri, Fire Department, including five years experience at the rank of Battalion Chief.” This job description introduced in evidence bears the date of February 1964.

In the personnel requisition, the director of the Fire Department had specified that the vacancy in the office of deputy fire chief should be filled by promotion, pursuant to applicable provisions of the Charter. It is noted that under the foregoing minimum qualifications, the position could only be filled from within the ranks of the fire department (or perhaps theoretically by someone who in the past had been a member of the fire department although not currently so employed).

Notice of merit system examination was duly given. The evidence shows that there were only nine people who met the minimum requirements and that all of these held the rank of battalion chief in the Kansas City Fire Department. Of these nine, seven applied to take the merit system examination for this appointment. Appellant Williams was a battalion chief but did not apply to take the examination. Appellant Parker was a battalion chief and did apply to take the examination. The rules of the personnel department promulgated pursuant to the Charter provide in Section 7.7 concerning merit examinations that: “All competitors may be required to obtain at least a minimum rating in each or any part of the examination in order to receive a final passing grade or to be allowed to participate in the remaining parts of the examination.” Pursuant to this rule, the personnel department had established a minimum passing grade for the written portion of the examination for deputy fire chief. Of the seven battalion chiefs who took the written examination, four passed the examination by making scores higher than the minimum required and three failed because their scores were lower than the minimum requirement. Appellant Parker failed the examination. After the written examination was given and before the oral examination could be given, one of the battalion chiefs who passed the written examination died. The remaining three battalion chiefs who had passed the written examination were given the oral examination and all three and only these three were placed upon the register of those eligible for appointment to the job of deputy fire chief and such register consisting only of these three names was certified to the appointing authority, respondent James M. Halloran, Director of the Kansas City, Missouri, Fire Department. From this register respondent Halloran appointed John H. Waas to the position. He ranked first in the examination. It is this appointment of Waas that appellants are contesting as being illegal and void and in violation of what is claimed to be the mandatory provisions of the Charter of Kansas City, Missouri.

The City Charter of Kansas City provides for appointments to vacancies in Section 119 and for the filling of vacancies by promotion in Section 121. The applicable portions of these sections are as follows :

“Sec. 119. Appointments. When any position in the classified service is to be filled, the appointing authority shall notify the personnel director of that fact and the personnel director, after notice-to the persons to be certified, shall certify to such authority the names and addresses of candidates on the eligible list for the class or grade to which such position belongs as follows: (a) for position in divisions ‘A’ and ‘C’, five (S) names of persons having highest ratings-on the eligible list, plus two additional names with next highest ratings for each similar position to be filled if more than one; provided, however, that if any of those whose names are so certified do-not appear for interview by the appointing authority, the personnel director, on request of the appointing authority, shall certify additional name or names having the next highest ratings, to the number of those only who failed to appear as aforesaid; (b) for positions in division ‘B’ the names of all candidates on the eligible list in order of rating. The appointing authority shall appoint to such position one of the persons whose names, are so certified except as otherwise provided in this charter. * * * ”
“Sec. 121. Promotions. Whenever practicable, as determined by the head of the department in which a vacancy occurs, vacancies in the classified service shall be filled by promotion. Any advancement in rank shall constitute promotion. When any position in the classified sérvice which may be filled by promotion is to be filled, the appointing authority shall notify the personnel director of that fact, and the personnel director shall certify to such authority the names and addresses of employees of the city who are candidates on the eligible list for the class or rank to which such position belongs, in the order of rating, which list shall be known as the promotional list- Any appointment from such list of a city employee whose names is not among the five (5) highest in rating on such promotional list, if any, shall be made by the appointing authority only after proper approval thereof, in writing, by the director of personnel.”

It is appellants’ contention that these two sections must be read together; that the filling of a vacancy by either appointment or promotion amounts to the same thing; that the requirement that the roster of those eligible to fill a vacancy must consist of five (5) names is mandatory and applies regardless of whether the vacancy is filled by appointment or by promotion. Appellants also point to the last sentence of Section 121 as showing that a promotion roster must contain at least five (5) names, the same as a roster for filling vacancies by appointment rather than promotion.

Section 114 of the Kansas City Charter places in the “unclassified service” elective officers, city manager, department heads, boards and commissions, secretaries of officers in the unclassified service, the city clerk, the city auditor, and those performing certain temporary tasks. All other employees are placed in the classified service by Section 115 which divides the classified services into divisions “A”, “B”, and “C”. All parties agree that the job of deputy fire chief is in Division “A”.

Section 116 of the Charter empowers the personnel director to promulgate rules relating to the classified service, which rules shall provide, among other things, for the creation of eligible lists of successful candidates in the order of their standing as a result of examination, and the keeping of such lists current. In the instant case, there was no current eligible list and, therefore, examinations were held to create such a list as before noted.

The provisions of Section 119 provide for the filling of vacancies by the appointment of an applicant who need not be presently an employee of the city. For such an appointment, the personnel director is required to certify to the appointing authority “the names and addresses of candidates on the eligible lists for the class or grade to which such position belongs as follows: (a) for position in divisions ‘A! and ‘C, five (5) names of persons having highest ratings on the eligible list, * * *.” No such requirement is found in Section 121 of the Charter dealing with promotions. As to promotions, this section provides that the personnel director shall certify to the appointing authority “the names -and addresses of employees of the city who are candidates on the eligible list for the class or rank to which such position belongs, * *

It is apparent that these provisions contemplate the existence of a list of people who have taken competitive examinations and thereby qualify for appointment to the vacancy which is to be filled. It is likewise contemplated that this list will contain numerous names, some of whom are city employees and some who are not. In this context, it is provided that where the filling of the vacancy is not limited to promotion that the director of personnel will certify the names of the five people having the highest score, as the roster from which the appointment will be made. On the other hand, where the vacancy is to be filled by promotion, it is contemplated that the director of personnel will pull out from the roster of all of those eligible the names of employees of the city and place them on the roster in the order of the grade they achieved in the competitive examination. There is no requirement that this promotion roster be limited to the top five men. Neither is there any requirement that there must be five men. It is clearly contemplated that all of the city employees on the eligible list will be included in the roster certified to the appointing authority. If this were not so, the last sentence of this section would be meaningless. It will be noted that in Section 119, while the director of personnel is directed to certify a list of five names, this number 5 is clearly a maximum limit which cannot be exceeded unless there is more than one vacancy to be filled. No such limit applies to the promotion list. The language used covers all city employees whose names are on such list. It may be five, it may be seven, it might be twenty. If the list does, in fact, consist of more than five, then the last sentence of the section prohibits the appointment of an individual on the list whose examination score is not among the five highest, unless and until such appointment is concurred in by the personal director in writing.

From all of this, we conclude that the promotion list under Section 121 of the Charter shall consist of the names of all city employees on the eligible list regardless of number. This may be more than five or it may be less than five.

There is no magic in the number 5. It was chosen by the framers of the Charter to be included in Section 119 concerning appointments. These framers did not see fit to carry this number over to Section 121 which provides for the filling of vacancies by promotion. We cannot read this numerical requirement into Section 121. It will be noted that in Section 119, it is provided that the personnel director shall certify a roster of five names and while this is mandatory language, we note that the whole effect of this section is to place a maximum limit on the number of names on the roster. Whether this is a mandatory minimum number of names, we need not decide in this case.

As the facts of this case demonstrate, it is not only quite possible but very likely that in the filling of a vacancy in an office requiring skills not normally possessed by members of the general public, there might be instances wherein five applicants meeting the minimum qualifications could not be secured. In the case at bar, the evidence is that there were only nine individuals who possessed the necessary qualifications. Two of these decided for reasons of their own not to become applicants. They cannot be forced to become applicants. Three of the applicants failed to attain a passing mark on the written examination. The setting of a minimum score for a passing grade on an examination, or a part thereof, is specifically authorized by the rules of the personnel department of the City of Kansas City and this procedure is not here challenged. Therefore, we cannot require that the personnel director place on the roster from which the appointment is to be made, the names of those who have not passed the merit examination. One of those who-passed the written examination died before-the oral examinations were held. Thus, we-have only three men who possess the minimum qualifications and who passed the-merit system competitive examination. To-say that under such circumstances no legal roster could be certified by the personnel director and the City was thereby powerless to fill the vacancy in the office of deputy fire chief would closely approach the absurd. We will not impose any such unreasonable requirements upon the city unless we are required to do so by the clear and unambiguous wording of the applicable Charter provisions. As heretofore indicated, we are not so required. On the contrary, we are convinced that under the previsions of Section 121 of the Kansas City Charter, the personnel director was authorized and required to include in the roster of those eligible, which he certified to the appointing authority and from which this vacancy was to be filled by promotion, all of the employees of Kansas City who possessed the minimum qualifications and who-had passed the competitive merit system examination. All of such names are to be included on the roster whether the total' number exceeds five or is less than five.

Appellants contend that a city possesses' only those powers which it is authorized to-exercise by its Charter, be that Charter legislative or constitutional. They assert that in this instance the city only has power to fill the vacancy from a roster containing-five names. We have no quarrel with this general proposition of law or the authorities cited. However, we are not dealing' with the exercise of a power by a city; we are merely dealing with provisions of the Charter directing how such powers shall be exercised. The city has power to employ firemen. That is not questioned. The provisions here under consideration merely determine how this power is to be exercised.

In support of their position, the respondents have cited cases from other states holding that matters of “appointment” and “promotion” are two different things and that one is not governed by the provisions which are applicable to the other. These cases do not set out the statutory provisions which they construe ánd our decision must be based on the provisions of the Charter of Kansas City. Therefore, while we do not disagree with the decisions so cited, we do not rely thereon.

Finding no error in the trial below and being convinced that the judgment of the trial court squashing its preliminary writ of mandamus was proper, such judgment is hereby affirmed.

CROSS, J., and R. KENNETH EL-EIOTT, Special Judge, concur.

.MORGAN, J., not participating because -not a member of the court when the cause was submitted.


author: HOWARD, Presiding Justice.

text:
    STATE of Missouri, Respondent, v. Thomas HUFFER, Appellant.
    No. 24581.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1968.

      Taken as submitted by appellant.
    No appearance for respondent.
   HOWARD, Presiding Justice.

Defendant was convicted of common assault and sentenced to six months in the Buchanan County jail and a fine of $100.00. He has appealed to this court but has filed no brief. Since this appeal was submitted before the amendment of Criminal Rule 28.02, V.A.M.R., effective September 1, 1967, we will review the case under the provisions of such rule prior to amendment and will consider those points properly raised in defendant’s motion for new trial, together with those matters required to be reviewed whether raised or not.

The events out of which this charge grew began about 5:15 P.M., on Sunday evening, May 16, 1965. Two cruising police officers of St. Joseph, Missouri, were stopped for a red light when they observed an approaching car being operated in an erratic manner. It pulled into and parked in a parking lot of a laundry and dry cleaning establishment and the officers followed and parked their car beside it. The officers determined that the car belonged to one Louis Mules and was being driven by an unauthorized person. The officers attempted to get word to Mules or his family and after about fifteen minutes, his stepfather arrived. The stepfather discussed the situation with the officers but declined to take the car away. After a further wait of ten to fifteen minutes, Louis Mules and the defendant, Thomas Huffer, half-brother of Mules, arrived on the scene. Mules had been drinking and, with considerable profanity, immediately demanded in a loud voice to know about his car and who had stolen it. He repeatedly stated that no one was going to tow his car and no one beside himself was going to drive it. He refused to listen to either officer Hayes or his stepfather, both of whom tried to calm him down and repeatedly explained that the car was not going to be towed away. After this had gone on for a while, Mules started toward his car and officer Hayes intercepted him and told him he was under arrest for being drunk and for disorderly conduct. Mules then struck officer Hayes in the face, telling Hayes that he (Hayes) was not going to move his car.

Mules was 6 feet tall and weighed 230-240 pounds and was much larger than officer Hayes who was 5 feet 8 inches tall. When he was hit in the face, officer Hayes asked his partner, officer Muehlen-bacher, to get the billy club from the car. Muehlenbacher did so and gave it to Hayes who hit Mules at least once on the arm with the club but primarily used it to punch and jab with in an effort to subdue Mules and effect his arrest. The stepfather was trying to assist officer Hayes to subdue Mules but they were unable to do so. Hayes and the stepfather wrestled and struggled with Mules around the parking lot until other police officers arrived.

After Muehlenbacher gave the billy club to Hayes, he got behind Mules and grabbed him around the neck. At this point, the defendant Huffer entered the affray with the statement that they were not going to hurt his brother. Huffer grabbed officer Muehlenbacher, swung him around away from Mules and kicked him one or more times. One kick struck officer Muehlen-bacher in the groin or testicle area, rendering him unconscious for a short period. When he regained consciousness, officer Muehlenbacher made his way to the police car and radioed for help.

When Muehlenbacher fell to the ground, Huffer then • approached the spot where Hayes and Mules were struggling. Mules had his hand behind Hayes’ head and Hayes was bent forward. Huffer kicked Hayes in the face, across the bridge of the nose. Huffer also struck Hayes with his fist.

After officer Muehlenbacher radioed for help, he attempted to handcuff Huffer but failed. There were other young men present and the evidence is conflicting whether they were helping Huffer resist Muehlen-bacher or attempting to restrain Huffer. In any event, Huffer left the scene with some others and was later apprehended at a house a short distance up the street. Additional police officers soon arrived and Mules was subdued.

During this course of events, a considerable crowd gathered. At the trial, a total of 16 witnesses testified and their testimony covers 245 pages of the transcript. There is great confict in this testimony, both as to detail and as to basic facts. However, viewing all of the evidence in the light most favorable to the jury’s verdict, as we are required to do, the jury would be amply justified in finding the facts as we have outlined them and such facts fully support the verdict of the jury. Therefore, defendant’s contention that the trial court erred in overruling his motion for judgment of acquittal must be ruled against defendant.

Preliminarily, defendant complains that the trial court erred in refusing to permit his requested voir dire examination of a prospective juror after the state’s challenge for cause had been sustained. This assertion is without merit and misconceives the purpose of voir dire examination, which is to obtain a jury of impartial individuals to try the • fact issues of the case. Carter v. Rock Island Bus Lines, Inc., 345 Mo. 1170, 139 S.W.2d 458, and O’Brien v. Vandalia Bus Lines, Inc., 351 Mo. 500, 173 S.W.2d 76. In this search for an impartial jury, the voir dire examination enables the parties to develop information on which to base a challenge for cause and to permit the intelligent use of the peremptory challenges. State v. Miller, Mo., 207 S.W. 797. The trial court has broad discretion in controlling the voir dire examination, Olsten v. Susman, Mo., 391 S.W.2d 331, and this discretion extends to the granting of challenges for cause on grounds beyond those specifically set out in the statute. Johnson v. M.K.T.R. Co., Mo., 374 S.W.2d 1. Defendant does not have a right to any particular juror. His right is to have his case tried by an impartial jury. Even if we were to assume that the trial court erred in sustaining the challenge for cause, the defendant has not been injured and cannot complain as long as he was tried by an impartial jury. State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079, and O’Brien v. Vulcan Iron-Works, 7 Mo.App. 257. In the case at bar, defendant does not contend that the jury as selected was not impartial. After the challenge for cause was sustained, there was no function to be performed by further voir dire examination of the prospective juror in question and the trial court did not err in denying defendant’s request for further examination.

In this case, defendant was charged by an information in two counts. The first count charged an assault on officer Hayes and the second count charged an assault on officer Muehlenbacher. At the close of its evidence, the state elected to proceed on Count II (the assault on officer Mueh-lenbacher), and dismissed as to Count I. Defendant asserts error in the trial court’s failure to quash the information because it charged two crimes and because it failed to charge a crime for the reason that there is no allegation of “malice aforethought” which is necessary to charge an offense under Section 559.180, RSMo 1959, V.A. M.S. He also claims error in the failure of the trial court to require the state to elect before any evidence was introduced, thereby prejudicing defendant by permitting the introduction of evidence as to both assaults.

It is true that an allegation of malice is necessary to state a proper charge under the provisions of Section 559.180, supra; State v. Tolias, Mo., 326 S.W.2d 329; State v. Ivory, Mo., 327 S.W.2d 870; State v. Himmelmann, Mo., 399 S.W.2d 58; but there is no such requirement for alleging an offense under Section 559.190. The information validly charges an assault with intent to do great bodily harm, without malice, as that offense is denounced by said Section 559.190. State v. Gillespie, Mo., 336 S.W.2d 677. Therefore, this contention must be ruled against defendant.

The information does charge defendant with two separate and distinct offenses, in two counts. Absent specific statutory provisions therefor, or waiver by the defendant, one cannot be convicted of two separate and distinct crimes at the same trial, but the charging of two crimes in one information does not render the information bad as a matter of law. State v. Gholson, Mo., 292 S.W. 27, and State v. Terry, Mo., 325 S.W.2d 1.

The state was required to and did make its election between the two crimes charged in the two counts at the close of its evidence and before the defendant put on his defense. Defendant contends that the state should have been required to elect before any evidence was adduced. A motion to elect is directed to the sound discretion of the trial court. See State v. Grove, Mo., 204 S.W.2d 757; State v. Gant, Mo., 33 S.W.2d 970; and State v. Jackson, 17 Mo. 544. In the instant case, both assaults grew out of one transaction; they both occurred during one affray and were closely associated as to time. It would be impossible to give a complete evidentiary picture as to one assault without admitting evidence as to the other assault. Under such circumstances, evidence of the entire occurrence would be admissible to give a complete picture of all the surrounding circumstances even if defendant had been charged with only one assault. See State v. Varner, Mo., 329 S.W.2d 623, and cases cited therein. In such circumstances, the trial court did not abuse its discretion by refusing to require the state to elect before any evidence was presented. See State v. Gant, Mo., 33 S,W.2d 970; State v. Brugioni, 320 Mo. 202, 7 S.W.2d 262; State v. Brown, 317 Mo. 361, 296 S.W. 125; State v. Gholson, Mo., 292 S.W. 27; State v. Morelock, Mo., 291 S.W. 1078; and State v. Whitman, Mo., 248 S.W. 937. The defendant was not prejudiced by the admission of evidence as to both assaults because such evidence was admissible regardless of when the state was required to elect. State v. Varner, Mo., 329 S.W.2d 623, and State v. Brugioni, 320 Mo. 202, 7 S.W.2d 262.

Defendant also alleges error in the action of the trial court in allowing the state to amend Count II of the information at the close of all of the evidence by adding the words “and body” to the allegation that defendant did “strike, beat and wound the said John Muehlenbacher in and upon his head”. Such amendment was discussed by counsel and the trial court and allowed after the close of all of the evidence but apparently everybody overlooked the fact, as revealed by the transcript, that an amendment adding the words “and body” had been made without objection at the beginning of the trial and before any evidence was heard. In any event, the question of permitting amendments rests in the sound discretion of the trial court, State v. Grove, Mo., 204 S.W.2d 757, and where the amendment does not change the crime charged against defendant, we cannot convict the trial court of abuse of its discretion.

Defendant contends that the trial court erred in permitting cross-examination of defendant as to statements he made at the police station the next morning because his direct examination did not touch on any statements he made at the police station the next morning. The state’s evidence tended to show that after the assault, defendant was taken to the police station where he admitted kicking and striking officer Hayes and kicking officer Muehlenbacher. He was again interviewed the next morning and made the same admissions. On direct examination, defendant testified generally about the affray and specifically denied that he kicked officer Muehlenbacher. Section 546.260, RSMo 1959, V.A.M.S., provides that a defendant who takes the stand as a witness is liable to cross-examination as to any matter referred to in his direct examination and may be contradicted and impeached as any other witness. The state is not limited in its cross-examination of a defendant to an exact duplication of the direct examination. Here the substance of the charge was that defendant kicked officer Muehlenbacher. On direct examination, he denied that he kicked him. In such circumstances, the state’s cross-examination could properly go to all details of the occurrence and to prior inconsistent statements of defendant pertaining to the subject to contradict and impeach defendant “as any other witness”. See State v. Dill, Mo., 282 S.W.2d 456; State v. Dees, Mo., 276 S.W.2d 201; State v. Kaufman, Mo., 254 S.W.2d 640; and State v. Punshon, 133 Mo. 44, 34 S.W. 25.

After defendant had denied making such admissions at the police station, the state, in rebuttal, introduced an additional witness who again testified to these admissions. Defendant contends that it was error to permit this because the testimony was not proper rebuttal but was evidence properly admissible in chief. This evidence was cumulative and cannot be said to have prejudiced defendant. Also, the trial court has a broad discretion to permit evidence in rebuttal which would properly be admissible as part of the case in chief. When we remember that this evidence tended to contradict and impeach defendant as to the fundamentals of the charge against him, we hold that the trial court did not abuse its discretion. See State v. Feltrop, Mo., 343 S.W.2d 36, and State v. Dees, Mo., 276 S.W.2d 201.

During the examination of a doctor witness, the following testimony was elicited over the objection of defendant: “Q. * * * assuming that Officer John Muehlenbacher was kicked in the testicle area by a man wearing white sneakers, would such a blow render a man unconscious?” “A. It is possible.” Defendant objected to the form of the question, contending that it was not a proper hypothetical question because it did not encompass all of the facts and did not embody sufficient facts. Defendant now also complains that the answer was not required to be based upon reasonable medical certainty. As is pointed out in State v. Liolios, 285 Mo. 1, 225 S.W. 941, this is not a true hypothetical question to which defendant’s objections might properly be directed. Rather, it calls for expert testimony as to what results may scientifically follow from certain causes. The doctor did not purport to testify that Muehlenbacher was, in fact, rendered unconscious by the kick delivered by defendant. On the contrary, he only testified that a kick, such as that described in the question, could possibly, as a matter of scientific or medical knowledge, result in unconsciousness. Such expert testimony in the field of cause and effect is helpful to the lay jury in evaluating the factual evidence before them and has repeatedly been held proper. See State v. Rizor, 353 Mo. 368, 182 S.W.2d 525, State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 100 A.L.R. 1503, and State v. Hannebrink, 329 Mo. 254, 44 S.W.2d 142.

Lastly, defendant complains of the giving of instructions 6 and 7, and of the refusal to give his instructions A and B. Instruction 6 covers defendant’s right to defend a relative (here his half-brother Louis Mules) and equates that right to the right of self-defense. Defendant complains that this instruction is erroneous because it does not include a definition of terms to guide the jury in determining whether or not Mules was “illegally resisting arrest”, thereby permitting the jury to resort to surmise and conjecture in arriving at their verdict. Complaint is also made that the instruction did not advise the jury as to the amount of force reasonably necessary to effect the arrest of Mules. He also argues that Mules might have “legally brought on the difficulty” and contends that under such circumstances, “defendant had a right to come to his aid”. After careful study, we have concluded that the instruction is proper. The words used in the instruction were ordinary everyday words which the jury would have no trouble understanding. In fact, any attempt at definition along the line defendant suggests would be more likely to confuse the jury, unnecessarily complicate the instruction, and obscure its meaning, than to be helpful and clarifying. Our supreme court has many times upheld instructions using similar words in comparable situations. See, among the many cases, State v. Tull, Mo., 375 S.W.2d 100, State v. Howard, 352 Mo. 410, 177 S.W.2d 616, State v. Freeman, Mo., 57 S.W.2d 1084, State v. Long, 201 Mo. 664, 100 S.W. 587, and State v. Bailey, 190 Mo. 257, 88 S.W. 733. Furthermore, there is no evidence in this record from which the jury could find in favor of the arguments of defendant, such as that Mules “legally brought on the difficulty” (Mules did not testify), and under such circumstances, no definition instructions are required, as is pointed out in such cases as State v. Grant, 152 Mo. 57, 53 S.W. 432, and State v. Jacobs, 152 Mo. 565, 54 S.W. 441. We, therefore, conclude that this instruction did not permit the jury to resort to surmise and conjecture and is not erroneous in the manner defendant claims.

Instruction No. 6 is the credibility instruction. It contains the following sentence about which defendant complains: “In determining the credibility and weight of the testimony, you should apply your common experience in the affairs of life, and give to the testimony of each witness just such weight and credit as, under all of the facts and circumstances in evidence, you deem it fairly entitled to receive.” Defendant contends that directing the jury to “apply your common experience in the affairs of life” gives the jury a roving commission, fails to fix a standard to guide the jury and permits the jury to resort to surmise and conjecture. Our research has revealed no case in which such wording has been criticized. The same or similar provisions have been commonly used in credibility instructions. Credibility is a matter peculiarly within the province of the jury and it is one of the chief virtues of our jury system that it brings to bear on factual disputes the common experience of a representative group of the community. This instruction amounts to no more than telling the jurors to use their common sense in determining questions of credibility. We conclude that the instruction is not erroneous in the manner claimed by defendant.

Instructions A and B, offered by defendant and refused by the court, were both instructions on defense of a relative. This subject was fully covered by Instruction No. 6, given by the court and which we have heretofore found not to be erroneous. The trial court did not err in refusing to give these two instructions when the same subject was fully covered by another given instruction.

The information is in proper form and is not erroneous in the manner complained of by defendant, which we have heretofore discussed. The verdict and judgment are in proper form and responsive to the issues. There was allocution and the sentence imposes punishment within the limits provided by law. Finding no error, the judgment below is affirmed.

CROSS, J., concurs.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


author: MOREMEN, Judge.

text:
    Luther BOGGS et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    Rehearing Denied March 29, 1968.
    John Y. Brown, Sr., Lexington, for appellants.
    Robert F. Matthews, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., J. Douglas Graham, Commonwealth Atty., Campton, for appellee.
   MOREMEN, Judge.

Appellants, Luther Boggs and Clarence Southwood, along with Willie Hounshell, who has since died, were convicted of the offense of voluntary manslaughter and were sentenced to ten years in prison.

We .are faced with the initial question as to whether this appeal is properly before the court. Timely motion was made to dismiss the appeal because of failure to comply with RCr 12.54 which reads:

“The time within which an appeal may be taken to the Court of Appeals shall be ten days from the entry of the judgment or order appealed from, but if a timely motion has been made for a new trial or in arrest of judgment, an appeal from a judgment of conviction may be taken within ten days after entry of the order denying the motion.”

The court found the record to be incomplete and uncertain and returned it to the circuit court for correction.

The amended record indicates that the verdict was returned and judgment and sentence entered on August 21, 1963. The motion for a new trial was filed on August 28, 1963. The notice of appeal was filed on November 18, 1963.

By order of this court entered September 16, 1966, (effective January 1, 1967), RCr 12.54 was amended as follows:

“For the purpose of clarifying RCr 12.54 according to what this court considers to be its present meaning, the period at the end of RCr 12.54 is changed to a semicolon, and the following proviso is added:
“ ‘Provided, however, that in the case of a motion for new trial made later than five days after return of the verdict, the appeal must be from the order overruling or denying the motion, and the review on appeal shall be limited to the grounds timely raised by the motion as provided by RCr 10.06.’ ”

In McGregor v. Commonwealth, Ky., 407 S.W.2d 705, decided October 28, 1966, it was said:

“RCr 12.54 provides that an appeal to this court may be taken within ten days from the entry of judgment; but if ‘timely’ motion for new trial has been made, the appeal may be taken within ten days after the motion is overruled. RCr 10.06 limits the time for service of a motion for new trial to the period of five days after return of the verdict— except that if it is made on the ground of newly discovered evidence, the motion may be made at any time within one year after entry of the judgment or even later if the court for good cause permits.”

The motion for new trial in the case under consideration was not served within the five-day period. It was not based upon the ground of newly discovered evidence and therefore did not fall under the exception. It was not “timely” made and did not have the effect of extending the ten-day period for taking an appeal from the judgment. This appeal is not properly before this court.

Even though we have concluded that we are required to dismiss the appeal, nevertheless, in order to determine whether grave-error has been committed of such importance that appellants were denied their constitutional or basic rights to a fair trial, we will consider contentions raised by appellants in their brief.

It is insisted that the trial court violated appellants’ substantial rights to a fair and impartial trial by refusing to grant a severance of trials. It is said that evidence-by and about Hounshell was made admissible by the joint trial when it would have been inadmissible on separate trials. It is argued that prior to the enactment of the-present rules of criminal procedure which, became effective January 1, 1963, the old criminal code had provided in § 234 that persons jointly tried may be competent as witnesses for each other unless the indictment charges a conspiracy. The case of Mathis v. Commonwealth, 4 Ky.Law Rep. 53, 11 Ky. Opinions 686 (1882),. is cited as authority for the proposition that Houn-shell would not have been a competent witness against appellants because he was a. joint indictee for conspiracy to murder.. It is stated that the present rules of criminal procedure are silent on this point and! that there is no statutory law applicable. Reliance is had upon the general statement of law from 58 Am.Jur., Witness, § 174, to the effect that a person who is jointly indicted with another for a crime is not, until the case has been disposed of as to him, competent as a witness in behalf of his co-defendant.

Section 234 of the old criminar code was repealed in 1894, and the rule announced in the Mathis case no longer applies. In Gilbert v. Commonwealth, 228 Ky. 19, 14 S.W.2d 194 (1929) it was decided. that with the repeal of § 234, the last barrier against a defendant testifying was swept away so that a defendant may testify even though he is charged with conspiracy. See Jordan v. Commonwealth, 240 Ky. 391, 42 S.W.2d 509; and Ray v. Commonwealth, Ky., 284 S.W.2d 76. Severance under RCr 9.16 is a matter within the discretion of the trial court, Smith v. Commonwealth, Ky., 375 S.W.2d 819, and there should be no reversal except for an abuse of such discretion. Furthermore, in Hoskins v. Commonwealth, Ky., 374 S.W.2d 839, it was said:

“ * * * that the mere fact that evidence competent as to one defendant but incompetent as to the other may be introduced is not alone sufficient to establish such prejudice as to require the granting of separate trials. Ordinarily there must be some additional factor, such as that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other, e. g., one defendant’s admissions directly implicate the other.”

Another ground offered for reversal of this case is that the trial court’s action in requiring the jury to return to deliberation amounted in law to coercing the jury to return a verdict. At about 5:50 ;p. m. on the day the case was submitted to the jury they reported to the court that they had not agreed. The judge thereupon -commented that somebody had to return a verdict in the case. The appellant’s motion to discharge the jury was overruled and the jury was held together overnight and resumed deliberation the following morning. At about 10:00 a. m. they again reported that they were unable to return a verdict and handed the judge a statement saying they stood in number ten to two. The court made the statement they were getting along fine, that they had changed from seven to five. He gave them more time for deliberation, The motion to discharge the jury was renewed and overruled. At about 11:30 a. m. it was reported to the court that the' jury had reached a verdict. Each juror was polled at the time and each one answered affirmatively that it was his verdict.

We find nothing in the foregoing that amounts to coercion by the court. We have held on several occasions that there is nothing improper in admonishing the jury that the issue must be decided by someone. This matter has been discussed in Collins v. Commonwealth, Ky., 396 S.W.2d 318; and Brannon v. Commonwealth, Ky., 400 S.W.2d 680.

Finally it is complained that the verdict is not sustained by the evidence. In view of the fact that we are required to dismiss this appeal, we will not give a detailed summary of the voluminous record made in the trial of this case. We have however examined it and have found that there is an abundance of evidence to support the verdict. We are of opinion that appellants had a fair trial.

Judgment affirmed.


author: FAUST Y. SIMPSON, Special Commissioner.

text:
    Carl C. CASSIDY, Appellant, v. BRIAR BOWL, INCORPORATED, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.
    Rehearing Denied March 29, 1968.

      Lawrence S. Hail, Somerset, for appellant.
    Viley O. Blackburn, Smith & Blackburn, Somerset, for appellee.
   FAUST Y. SIMPSON, Special Commissioner.

Appellant sued the appellee, Briar Bowl, Incorporated, Somerset, Kentucky, for injuries received when he allegedly slipped down in the rest room of appellee’s place of business. At the trial of the case, the appellee made motions for directed verdicts at the close of appellant’s evidence, at the close of its evidence, and at the close of all the evidence. All of the motions were overruled. Thereafter, a judgment was entered in favor of appellant based on the verdict of the jury. The appellee then filed a motion for judgment n. 0. v. As a result of a hearing on this motion, the court set aside its original judgment and entered a judgment n. 0. v. in favor of appellee and dismissed the action. This appeal followed.

The building in which the appellee operates its bowling business contains a women’s and a men’s rest room for the convenience of the patrons of the bowling alley. The men’s rest room in question is a room about 8 by 10 feet and contains a urinal, commode, and washbasin. As one enters the door, the urinal is hanging on the wall straight ahead about 6 or 8 feet. Beneath the urinal is a combination steel and rubber mat, measuring about 2 by 4 feet, placed there to keep bowling patrons from getting the soles of their shoes wet. The floor is of ceramic tile, light and dark gray in color, and slopes slightly to the center where a drain is located.

The appellant was a part-time employee of the appellee. On the night of his injury he had gone to the Briar Bowl with two companions to get his check for his work the night before. While there appellant and his two companions, Charlie Davis and Curtis Marcum went to the rest room. Davis and Marcum entered first followed by appellant. Appellant waited behind Davis and Marcum for approximately two minutes before it came his turn. He stepped up to the urinal on the mat, used the urinal, and turned to leave. When he took one step off the mat, his foot slipped and he fell sustaining the injury complained of. It is his contention his fall was caused by the slippery condition of the floor as a result of an accumulation of water on it. Appellant testified this accumulation of water on the floor was caused by an overflow from a stopped-up drain; that he had seen the overflow at other times; and that he had been asked by the manager to mop it up.

As pointed out in appellant’s brief, the record does not show why the trial court granted the judgment n. o. v., but it was apparently granted on the grounds of contributory negligence of the appellant. We are in agreement with this ruling. This case is not unlike the recently decided case of Southern Bell Telephone & Telegraph Co. v. Walters, Ky., 413 S.W.2d 615, 617 (1967), wherein we stated:

“[A]n invitee’s right to assume that the premises which he has been invited to use are reasonably safe does not relieve him of the duty to exercise ordinary care for his own safety, nor license him to walk blindly and nonchalantly into dangers and obstacles which are obvious, plainly to be seen by him and entirely visible, or which are known to him, or would be anticipated by any person of ordinary prudence.”

See also Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405.

Here, the appellant, of his own admission, walked into a place with which he was thoroughly familiar. A place where he had seen water running over the floor. He not only walked over the floor which he contends was wet, but stood on it and presumably stood in the water for a matter of two minutes, while waiting on the other two boys, and never looked down at the floor. Appellant not only should have anticipated the condition of the floor, having worked there and seen its condition before, but would have actually seen the condition on this night had he looked. It is manifest that he failed to use ordinary care for his own safety and that his own negligence so contributed to his injury as to bar a recovery.

Appellant contends he should not be held negligent in this case as he entered the rest room as a matter of necessity and cites Denham v. Steamer Avalon, Ky., 261 S.W. 2d 291. However, this argument is rejected in the present case for the same reason it was in Denham, wherein this court said on page 292:

“Since she had knowledge of the slippery and unsafe condition of the floor the burden was on her to show that it was reasonably necessary for her to cross that part of the floor in order to accomplish her mission. In the absence of such testimony we think plaintiff failed to prove a case and the court properly directed a verdict.”

It is concluded the trial court was correct in finding appellant guilty of negligence as a matter of law.

The judgment is affirmed.

All concur.


author: WILLIAMS, Chief Justice.

text:
    Clifford McHARGUE, Committee of Marvin McHargue, an Incompetent, Appellant, v. Shirley McHargue SIZEMORE et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Rehearing Denied March 29, 1968.

      Boyd F. Taylor, Hamm, Taylor & Milby, London, for appellant.
    William J. Weaver, Lewis & Weaver, London, for appellees.
   WILLIAMS, Chief Justice.

This is an appeal from a judgment of the Laurel Circuit Court construing the will of A. D. McHargue. The controversy is whether the judgment should have declared that the will impressed a trust on the Mc-Hargue estate. It is our opinion that it should have.

A. D. McHargue died testate in 1951. His will which was not admitted to probate until 1957 reads as follows:

“LAST WILL AND TESTAMENT OF A. D. McHARGUE
“ I, A. D. McHargue, of Lily, Laurel County, Kentucky, being of sound mind and disposing memory, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all former wills by me heretofore made.
“ITEM I. I desire' that all my just debts and funeral expenses be paid out of my said estate as soon as practicable after my death.
“ITEM II. I hereby will and bequeath to my beloved wife, Grace McHargue and my son, Rudolph McHargue, all of my property, real personal or mixed that I may own or have a right to dispose of at the time of my death, and give and grant unto them full authority to sell the same and if they desire to reinvest the proceeds of said sale in other property.
“ITEM III. It is my will that my said wife, Grace McHargue and son, Rudolph McHargue, take care of, support and maintain another son, of mine, Marvin McHargue, who is an invalid and incompetent during his life, the same to be paid out of my estate hereinabove willed to my said wife & son.
“ITEM IV. I hereby nominate and appoint my said son, Rudolph McHargue, my Executor of this my last will and testament and request that no bond be required of him and that no inventory be made of my estate in so far as the law will permit.
“Dated at London, Kentucky, this the 18th day of Aug. 1949.
“s/t/ A. D. McHargue.”

A. D. McHargue was survived by his wife Grace McHargue and seven children, who were his only heirs at law. Grace died intestate in 1956, leaving the seven children as her only heirs.

As previously stated, the will of A. D. McHargue was admitted to probate in 1957. At that time a deed was executed by five of the McHargue children, including Clifford the appellant here, conveying their interests in the subject property to Rudolph McHargue. Of course, neither Rudolph nor Marvin, the incompetent brother, signed the deed. Following delivery of that deed Rudolph owned the property, except for the one-fourteenth interest of the incompetent brother Marvin, and subject to the trust, if any, created by his father’s will.

Rudolph, who was a 50-year-old bachelor, married appellee Shirley McHargue (now Sizemore) in 1961. To this union Dennis McHargue was born. Rudolph died intestate in 1964, leaving Shirley and Dennis as his heirs.

Appellant Clifford McHargue, committee of Marvin McHargue, brought this action seeking a declaratory judgment. The judgment concluded that, by his will, A. D. Mc-Hargue devised a fee simple title to the property to his wife Grace and his son Rudolph. It was reasoned that such intention was clearly expressed m Item II of the will and strengthened by the use of the words in Item III “my estate herein-above willed to my said wife & son.” It was further concluded that the first words in Item III, “It is my will,” should be construed to mean “It is my desire,” thereby clarifying any possible ambiguity.

The chancellor properly based his conclusions on an interpretation of the will when read in its entirety. Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1 (1948). However, we feel that too little emphasis was given the testator’s intent to provide for his incompetent son Marvin. It must be remembered that at the time the will was executed Rudolph was living at home with his parents who were caring all the while for Marvin.

It is apparent to us that, taking the sense of the whole will, the father left his entire estate to his wife and one son only on the condition that another son, who, unfortunately, could not care for himself, would be provided for out of the estate. His five other children were excluded entirely. Rudolph, who was living at home on the farm, was the natural one to continue caring for Marvin.

To conclude the word “will” as used in the first part of Item III should be given a precatory flavor is not to afford it the stature it requires. As used, it expresses a command rather than a desire. It was A. D. McHargue’s intent that the estate be impressed with a trust and he “willed” it so. We feel the meaning is clear that the estate passed was burdened by the trust created for the support and maintenance of the incompetent son Marvin during his life.

The judgment is reversed, with directions that a new judgment be entered in conformance with this opinion.

All concur.


author: CULLEN, Commissioner.

text:
    Oletta D. DUTTON, Sarah Meece, and LaDonna Woodward, Appellants, v. Melvin G. PEACOCK, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.

      Harry L. Hargadon, Hargadon, Harga-don, Lenihan & Horbolt, Louisville, for appellants.
    Moloney & Moloney, Lexington, for ap-pellee.
   CULLEN, Commissioner.

Appellants Oletta Dutton, Sarah Meece and LaDonna Woodward sustained injuries when the automobile in which they were riding on a street in Lexington was struck from behind by the automobile of the ap-pellee Melvin Peacock. In the appellants’ suit for damages against Peacock the jury gave Oletta $1,849.30, LaDonna $864.06 and Sarah $135.00. Judgment was entered accordingly. This appeal indicates the appellants’ dissatisfaction with the amounts of their recoveries.

The appellants’ main contention is that the damages awarded them were gross- and inadequate and therefore they are entitled to a new trial. The trouble is that they did not ask the trial court for a new trial. Not having raised the question of inadequacy in the trial court, by a motion there for a new trial, the appellants cannot raise the question on appeal. East Kentucky Rural Electric Co-op Corp. v. Price, Ky., 398 S.W.2d 705; Wooten v. Compton, Ky., 322 S.W.2d 473; Bourland v. Mitchell, Ky., 335 S.W.2d 567; Commonwealth, Dept. of Highways v. Williams, Ky., 317 S.W.2d 482; Clay, CR 59.06.

The only other contention of the appellants relates to an alleged error of the trial court in refusing to permit the appellants (plaintiffs), during the presentation of their case, to read to the jury the deposition of the doctor who had examined the plaintiffs on behalf of the defendant (ap-pellee). The plaintiffs had presented the testimony of their own doctor and desired to read the deposition of the defendant’s doctor (who was not present in court). The defendant objected and stated that he would read that doctor’s deposition in the presentation of the case for the defense. The trial judge ruled that the plaintiffs could not read the deposition as part of their case but could read it later if the defendant failed to read it during the presentation of the defense (the defendant did so read it). The plaintiffs’ counsel then voiced the objection that the ruling was “denying me the right to present my case the way I had planned.”

The appellants argue that they had an absolute right to read the deposition by virtue of the provision of CR 26.04(3) that a deposition may be “used by any party for any purpose”. Conceding for the purpose of argument that appellants did have such a right, we find that they do not suggest any respect in which they were prejudiced other than in “the right to present my case the way I had planned.” This seems to relate only to a matter of trial strategy, or perhaps even a trial stratagem. We find no prejudice of a substantial right.

The judgment is affirmed.

All concur.