author: HYDE, Judge.

text:
    MISSOURI POWER & LIGHT COMPANY, a Corporation, (Plaintiff) Respondent, v. E. P. BARNETT, Keith W. Major, Gladys M. Major, Robert J. Major and Edith E. Major, (Defendants) Appellants.
    No. 48677.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied March 12, 1962.
    William A. Seibel, Jefferson City, for appellants.
    J. D. James, Jefferson City, Robert L. Hawkins, Jr., Graham & Hawkins, Jefferson City, for respondent.
   HYDE, Judge.

Action for establishment of rights under an easement for an electric transmission line, seeking an injunction against encroaching upon plaintiff’s rights. The court made findings of fact and conclusions of law in accordance with plaintiff’s claim and entered a decree including a mandatory injunction requiring defendants to remove a house constructed after this suit was commenced. Defendants alleged in their answer and had evidence to show the relief asked and granted would cause loss to them of more than $16,000.00, which is sufficient to show jurisdiction in this Court. State ex rel. Sims v. Eckhardt, Mo.Sup., 322 S.W.2d 903, 905.

In 1929, plaintiff obtained a right-of-way easement “to erect, maintain and operate a line of steel towers and wires with necessary anchors, guys and braces upon and across certain lands owned by the grantor,” the cefiter line of the right ol way being described in the deed. This conveyance further stated: “There will be only three towers on the above described centerline. The easement hereby granted includes the right to transmit electrical energy over said line and to enter upon said premises for the purpose of erecting said steel towers and supports and stringing said wires and repairing or removing the same, and the right to trim or remove such trees as interfere with said line.” It further stated that acceptance by the grantee “shall obligate it to pay any damages, which may be caused to crops and fences from the construction and maintenance of said steel tower line; said damages, if not mutually agreed upon, to be ascertained and determined by three disinterested persons,” and stated how they should be selected.

The court made the following findings of fact, which are fully supported by the evidence :

“1. Plaintiff, a public utility company, pursuant to authority granted by the Public Service Commission of Missouri, constructed an electric transmission line from Jefferson City, Missouri, to Mexico, Missouri, in the latter part of 1929, and the line has been operated and maintained in its original location at all times since its erection. That said electric transmission line is an integral part of an electric production and transmission system serving a wide area in Missouri. The line is constructed of steel towers, each of which has three steel cross-arms from which are suspended six electric conductors of aluminum with steel cores. Three conductors on each side comprise a circuit operated at a voltage of 69,000 volts. A seventh wire, known as a shield wire, is stretched between the tops of the towers and serves to protect the line from damage by lightning.
“2. Defendants are the owners of Lot One (1), Block B, Section Two (2), of Jordan Hill’s Subdivision to the City of Jefferson, Cole County, Missouri, and are the successors in title of the grantors of an easement to plaintiff for the erection, maintenance and operation of the electric transmission line, and said defendants acquired the above described real estate with actual and constructive notice of the existence of said easement of plaintiff across said lot.
“3. In April of 1929, prior to the erection of the transmission line, plaintiff for the consideration of $150 secured a right-of-way easement across a farm owned by defendants’ predecessors in title. The line was constructed along the center line described in the easement and has remained in the original location at all times since its erection. That said grantors of the easement owned in excess of 100 acres at the time of the grant, all of which at that time was devoted to agriculture. There were no buildings or structures of any kind near or under the transmission line. In September, 1956, a subdivision was plotted, which included the lot in question here now owned by defendants. The corporate limits of Jefferson City were extended to include the portion of the transmission line and the defendants’ property in question here. In 1955 some residential development began east of said line, but no construction was attempted which directly involved the transmission line until defendants constructed a dwelling house directly beneath all of the conductors of the line in 1958. None of the towers of the transmission line are located on the lot of defendants, but the conductors suspended from the towers pass directly across and over the lot of defendants. The clearance between the lowest conductor and the top of the roof of defendants’ house is 17.83 feet.
“4. Said electric transmission line has five steel towers located south of the Missouri River [in Jefferson City]. The first tower next to the river, known as the Bluff Tower, and the fifth and last tower generally south thereof have insulators hung in what is known as the strain position, while the three remaining towers have insulators hung in the suspension position. Insulators hung in the strain position are required where the direction of the line is changed or the tension in the conductors of the line is changed. The fifth tower south of the Missouri River is the first tower immediately south of defendants’ lot. Any work on the conductors between the tower next to the river on the bluff and the fifth tower to the south requires the conductor or conductors between those two points to be lowered to perform said work. The transmission lines must be periodically inspected for both mechanical and electrical strength, and in order to accomplish such inspection it is necessary to have free access to the conductors and towers on the line. That maintenance is occasioned not only by conditions which occur in the conductors and towers, but also may be the result of outside forces such as wind, lightning, ice, trees, rifle fire and airplanes. That repairs or replacements of damaged conductors cannot be accomplished in the air above the surface of the ground, but such damaged conductors have to be spliced on the ground. That the conductors of this line are of such weight and are handled at such tension that mechanical and mobile equipment is required, and that in raising or lowering the conductors it is necessary to have free access to the surface of the ground immediately below the conductors in a straight line from tower to tower.
“5. That the presence of the house directly under the conductors of the transmission line adds the possibility that a fire in the house could cause damage to the conductors or even cause the conductors to break and fall, and that in fighting any fire in the house if a stream of water directed by firemen should touch any of the conductors or near them it would endanger the life of the person holding the hose. The possibility of any of the conductors for any reason falling across the house creates the hazard of igniting the house and possible harm to any occupant thereof.”

Plaintiff’s evidence was that this line was the most important link in its transmission system; that its original cost was more than a half million dollars; and that relocation would not only be costly but that no convenient location is available in the immediate vicinity. At the time the easement was granted the whole area of the transmission line was uevoted entirely to agriculture. The corporate limits of Jefferson City, Missouri, were then some distance to the east. However, in 1947, the corporate limits were extended to include the still predominately agricultural area and included all but a small portion of the transmission line south of the Missouri River. The house in question (occupied by defendant Barnett) and two others were the only houses constructed or under construction, at the time this suit was commenced, on the 45 lots that defendants (who are contractors and developers) acquired in the area in January 1958. No other house had been or was being built anywhere under the line, which terminated farther southwest at a step-down substation (to reduce from 69,000 to 13,800 volts) to serve Jefferson City. Defendants own other lots over which plaintiff’s line passes. It was admitted that the house could be moved and plaintiff’s evidence showed a total cost of $5750.00 for moving and relocating.

In March 1958, defendant Barnett came to plaintiff’s office and inquired of V. H. Anderson, its engineer supervising transmission lines, and “asked what we would do if he built a house under our line.” Anderson told him “we would do everything we could to prevent it” but Barnett said “he was going to build a house under it.” Anderson went to the Major brothers, defendants herein, upon finding they owned the land with Barnett to “dissuade them or influence them to dissuade Mr. Barnett from proceeding with the construction.” They furnished him with plans for the proposed house and one of them indicated that he had tried to dissuade Barnett. Anderson arranged for frequent inspection to check for any activity at the site and found on Saturday, June 14, 1958, that footings for a building had been poured there. On Monday, June 16, 1958, plaintiff had a written notice served on defendants by the sheriff notifying them that this construction was “an interference with and trespass upon the rights held” and that it was plaintiff’s intention “to seek appropriate relief by injunction and payment of any and all damages.” On Wednesday, June 19, 1958, Anderson found the foundation poured and the forms removed. Barnett said: “If you boys will come back in a day or two, we’ll have the floor on this.” This suit was filed that afternoon.

Defendants, in support of their claim of right to build the house directly under plaintiff’s transmission line, mainly rely on Babler v. Shell Pipe Line Corporation (E.D.Mo.) 34 F.Supp. 10, in which there was an easement for pipe lines, telephone and telegraph lines. In that case there was no building over or under any of these lines. The easement authorized additional pipe lines to be laid, without limit as to number or location, the owner to be compensated by “the same consideration per lineal rod as that paid for first line.” The easement gave the grantee (among other things) the right to “reconstruct, replace, renew, maintain, repair, operate, change the size of, and remove, pipes and pipe lines” and “to erect, maintain, operate and remove” the telephone and telegraph lines, “with rights of ingress and egress” for such purposes. It also contained a reservation for the grantor “to have the right to fully use and enjoy the above described premises, except as to the rights hereinbe-fore granted”; and it obligated the grantee “to pay any damages, which may arise to crops, timber, fences or buildings, of said grantor from the exercise of the rights herein granted,” providing how damages should be determined.

The controversy arose because part of the land lying north of the two pipe lines constructed had become desirable for building lots and title examiners for prospective lot purchasers would not approve the title because of the indefiniteness as to location of lines. The defendant agreed the court could declare that any additional pipe lines should be laid south of the existing lines. However, as to limiting the future use to any certain number of lines or as to- limiting the use of the surface, the court said:

“It is unfortunate that the lease is indefinite and uncertain in this particular. But it is likewise unfortunate from the plaintiff’s standpoint that the easement is indefinite and uncertain as to the number of pipe lines that may be laid and the consequent disruption of the use of the surface. But these omissions may not be corrected by construction.

“The property owner, therefore, has the right to use the surface of the ground in any manner he' sees fit so long as that use will not disturb, injure or destroy the pipe lines below the surface or the telephone and telegraph line above the surface. If he desires to erect a building or plant a crop on the surface of the ground adjacent to or even over the pipe lines there is nothing in the easement to forbid. Of course, if the landowner does so he will incur the risk of injury to those buildings, structures or crops from possible new construction and from repair or reconstruction of the existing facilities. But although the defendant possesses the right to enter upon the premises for the purposes stated yet the obligation to compensate for the injury caused from the exercise of that right likewise exists.

“It should be clear from what has been said that the court has no power or right to determine what portion of the surface of the tract the defendant may use to the exclusion of the property owner or vice versa. The property owner may use the entire surface subject only to the right of the easement holder to injure crops or structures thereon for the particular purposes stated and with the obligation to pay damages therefor.”

Obviously, there are many differences between the situation in that case and this one. As noted the court was commenting generally upon the indefiniteness of the agreement as to rights of both parties and was not ruling a specific situation of any kind of a building over the pipe lines. However, it did recognize thát the owner had only the right to make uses of the surface that “will not disturb, injure or destroy the the pipe lines below the surface or the telephone or telegraph lines above the surface.” Probability of disturbance and injury is involved here by reason of the fire hazard shown; and we have a very different situation because of the great and highly dangerous amount of electricity always carried on this line so close to the roof of the house. (For dangers involved see Hamilton v. Laclede Electric Cooperative, Mo.Sup., 294 S.W.2d 11; Potter v. Sac-Osage Electric Cooperative, Inc., Mo.Sup., 335 S.W.2d 192; Carey v. Crawford Electric Cooperative, Inc., Mo.Sup., 347 S.W.2d 184.) The Babler case did not consider this kind of a situation nor discuss interference with repairs and maintenance, such as were authorized by the easement herein involved (including necessary inspection) and shown by the evidence to be important for safety and for uninterrupted service. Furthermore, as the easement herein did not, the easement in the Babler case specifically mentioned buildings (providing for payment of damages to them) and contained an express reservation for the grantor “to fully use and enjoy” the described premises. Moreover, as noted in Ohio Fuel Gas Co. v. Sun Oil Co., (Ohio C.P.) 164 N.E.2d 922, the Bab-ler case did not involve a public utility or its service. In Arkansas Louisiana Gas Co. v. Cutrer, La.App., 30 So.2d 864, the Babler case was distinguished by reason of the specific provision about damages to “buildings” in that easement. The court noted that in the easement before it (a pipe line case) the gas company was obligated only for damages to fences and crops (as in this case) and affirmed a judgment granting a mandatory injunction for removal of a building over the pipe line. The court found “that the construction and completion of the building was in violation of the rights granted the plaintiff under its right of way deed.”

Likewise in Central Kentucky Natural Gas Co. v. Huls, Ky., 241 S.W.2d 986, 28 A.L.R.2d 621, in which a building was being constructed over a pipe line, the court said: “Obviously, to allow the construction of a building over this high power transmission line would be a burden upon the easement and an unwarranted violation of the rights created thereunder.” Both of these cases stressed the necessity of inspection for proper maintenance and to prevent damage and injuries. An annotation to this case, 28 A.L.R.2d 626, 630, with cases summarized, shows that the broad general language of the Babler case has not been applied in specific instances of buildings, which cause interference and create hazards, where there is no reservation of full and complete use and ownership with specific mention of buildings. Therefore, we hold that the Babler case is not decisive of the issues herein involved.

The effect of a building under an electric transmission line was considered in Carolina Power & Light Co. v. Bowman, 229 N.C. 682, 51 S.E.2d 191, 6 A.L.R.2d 194, where the court reversed a judgment in favor of a landowner’s right to have a building under the line, saying: “Such a building, so located, would seem, necessarily to interfere with the exercise of the plaintiff’s ‘right of access upon and along said easement,’ for purposes incident to the maintenance of its electric power transmission lines.” The court further said: “When the servient owner of land subject to an easement for the construction over and upon it of electric power lines undertakes to erect, and does erect and maintain, a permanent building of the size, height, and dimensions shown by the uncontra-dicted evidence in this case, to hold the Power Company, the dominant owner, without adequate remedy to prevent this encroachment upon an easement lawfully acquired would seem to us to create an unwise precedent. A high degree of care is required of those who handle and distribute electric current, the degree of care being that commensurate with the dangers reasonably to be apprehended from contact with so powerful and subtle an agency, and when a right has been conferred therefor its exercise in the interest of public safety and public service should not be hampered by permitting unreasonable encroachments upon or interference with the-means and facilities it may lawfully use.”

The court cited Collins v. Alabama Power Co., 214 Ala. 643, 108 So. 868, 46 A.L.R. 1459, in which the court said: “We think there can be no doubt that the dwelling house, resting in part upon complainant’s right of way, is an obstruction such as complainant sought to guard against when it took a grant of its right of way from Evans.” See also Kesterson v. California-Oregon Power Co., 114 Or. 22, 228 P. 1092; Willingham v. Georgia Power Co., 193 Ga. 801, 20 S.E.2d 83, (both of which concerned high piles of lumber) and Pacific Gas & Electric Co. v. Minnette, 115 Cal.App.2d 698, 252 P.2d 642; and Horky v. Kentucky Utilities Co., Ky., 336 S.W.2d 588; Louisiana Power & Light Co. v. Bennett, La.App., 107 So.2d 468; (in all of which there were mandatory injunctions for removal of buildings); see also Kansas City Power & Light Co. v. Riss, Mo.App., 319 S.W.2d 262; 29 C.J.S. Electricity § 16, p. 527. Our view is that the trial court correctly ruled in its conclusions of law that this house, “located directly beneath all of the conductors of the line * * * is an obstruction and an impediment to access to the space below the line for inspection of the conductors and for the movement of men, equipment and materials beneath the line in a straight line between the steel towers in making any required repairs on the conductors”; that “the presence of the house also adds the possibility of damage to the conductors by a fire occurring in the house, which of course would be a threat to the uninterrupted operation of the line”; that “the erection of the house by the defendants was and is a substantial encroachment upon the paramount easement rights of plaintiff and is inconsistent with the full use and enjoyment of the right-of-way easement of plaintiff for the operation and maintenance of said transmission line”; and that since the house was constructed “immediately under said transmission line after having been notified by plaintiff that . it would interfere with its easement rights, and most of the house was constructed after this action was started, a mandatory injunction is the proper remedy for the removal of a permanent and substantial encroachment by defendants on plaintiff’s right-of-way even though defendants will be put to heavy expense in moving the house.”

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DALTON, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Leland L. AYERS, Appellant.
    No. 48850.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.

      J. B. Beavers, Cameron, for appellant.
    Thomas F. Eagleton, Atty. Gen., Ben Ely, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Presiding Judge.

Defendant was charged with burglary second degree and stealing in conjunction with burglary. He was convicted of both and his punishment fixed at four years’ imprisonment for the burglary and three years for stealing in conjunction with the burglary. The court ordered the terms of imprisonment to run consecutively, a total of seven years. See Sec. 560.070, 560.095, 560.110 RSMo 1959, V.A.M.S.

Defendant has appealed from the mentioned judgment and here contends that “the Court erred in allowing plaintiff’s attorney to cross-examine the witness Culbertson as a surprise witness concerning the statement given by him at the time of his arrest, as such cross-examination reemphasizes such Culbertson’s testimony and further allowed plaintiff’s attorney to have the effect of getting inadmissible documentary evidence before the jury.”

While defendant was charged, tried and ■convicted as a principal in the first degree; it is apparent from the record that he was being prosecuted as an accomplice on the theory that he was an accessory before the fact. See Sec. 556.170 RSMo 1959, V.A. M.S.

A gasoline filling station, known as the Midway Service Station, located near Smithville in Clay County, Missouri, and leased to and operated by Cecil Forsythe, was broken into and entered on the night of July 8, 1960. The cash register was opened and one dollar and four cents in change taken and carried away. The station contained “oil, additives, Frams, and the general run of service station (merchandise).” No merchandise was missing after the burglary. An entry had been effected by breaking the plate glass out of the front door. Most of the broken glass had fallen inside the station.

Defendant was arrested in Imperial, California, and returned to Clay County for trial. In order to make a case for the jury, the State called as a witness against the defendant one Marion Wayne Culbertson, an admitted participant in the alleged crime.

Culbertson testified that he was twenty-one years of age and an inmate at the Al-goa Intermediate Reformatory at Jefferson City; that he had been brought to Clay County to testify in the case; that he had previously pleaded guilty to burglarizing the Midway Service Station operated by Mr. Forsythe; that the offense was committed on or about the 8th of July, 1960; and that others were with him at the time this burglary took place. He said: “They was with me, but they did not go in. * * * I went in the service station and the defendant and another boy was, stayed in the car.” The car belonged to defendant. Culbertson said he had “occasionally” talked to defendant about breaking into this filling station. It was on the night before he broke in the station. No one else was with him at the time he talked to defendant. He did not remember the substance of the conversation, nor who had suggested breaking into the station. He said, “I don’t remember exactly.”

On the night of the burglary he was with defendant and one Guy William Brown. They had left Lathrop, Missouri, and were going to Pleasanton, Kansas. They took Route No. 169 and came by the -Midway Service Station about one o’clock a. m. The station was closed. They did not stop there at first, but went down the road about two miles and parked for a little while. Defendant was driving. They then went back to the station and witness “jumped out and broke in.” Defendant did not stop the car, but he slowed down to about five miles per hour for witness to get out. The car did not stay at the filling station, but, after Culbertson entered the station and came out, the car was coming back down the road. It slowed down and witness got in. Defendant was still driving. Witness obtained a dollar and some change in the filling station. The money was later used to buy gasoline for defendant’s automobile.

Witness said he had “not talked anything about the burglary before it happened, *, * * not that night, sir,” but he had talked about it “a little bit before.” He also said that he and defendant had talked about the filling station, but, “Well, not exactly break into it, sir. * * * Well, we just mentioned the filling station. We didn’t know what the name of it was or anything.”

• As to whether witness had talked to defendant about breaking into this particular station, he further answered: “I won’t say that in that certain filling station or — he said filling station, sir, and we was going to make a payment on the car, yes.”

Previous to the break-in, and apparently before the 8th of July, 1960, witness and defendant had been to Pleasanton, Kansas, and as they came back by this filling station, witness said: “Well, we pulled in there to it and just looked at it, Leland Ayers and I.” The station was not then open. They did not then do anything. As to whether he discussed “the filling station at any time,” he further said: “Not the exact filling station that I remember, sir.”

Concerning the actual burglary, witness also said that after they had passed the station, stopped down the road and then returned, and before he, got out of the car, they were looking it over. “They was looking over there at it, the station.” The filling station was not then open. As to how witness broke into the station, he said: “I used a tire tool * * * out of the back end of Leland’s (defendant’s) car. * * * It was laying in the back seat. * * * I was in the back seat.”

As to whose idea it was to break in he again said: “I don’t remember exactly, sir.” He then testified that he had made a statement to the officers on or about September 21, 1960. A document was marked for identification as State’s Exhibit No. 1 and handed to the witness. He was asked to look at the document and see whether or not it refreshed his memory. An objection was made and sustained on the ground that the State was bound by the witness’ testimony. Counsel for the State again asked whose idea it was to break into this station and defendant’s counsel objected on the ground that the same question had been asked three or four times before and the witness had said he didn’t recall. The objection was overruled and the witness again said, “I don’t remember, sir.”

In the course of the direct examination up to this point the witness did not appear to have a very good memory and on various occasions he had said, “I don’t remember exactly.” The record would support a finding that he was reluctant and evasive. As indicated, he had repeatedly said that he did not remember who suggested that this particular filling station be broken into on this particular night.

Thereafter, out of the presence and hearing of the jury, counsel for the State requested the Court’s permission to cross-examine the witness for the reason that his testimony was a surprise to the State. Counsel stated that the witness had made a statement on September 21, 1960, in regard to the matter which was different from the witness’ present testimony; that “ ⅜ * * th.iS morning Mr. Culbertson told pie when I asked him about this case that it was Mr. Lee Ayers’ idea * * * I’d like to introduce for the purpose of this motion only, state’s Exhibit No. 1.” Counsel further stated that the witness was a material witness for the State; that the State “had to call him because he was on the scene”; that the State had no choice in the matter; that in several particulars he had testified either reluctantly or says that he cannot recollect; “that he has surprised us with his testimony because it’s different from all previous statements and more particularly the signed statement, which is state’s Exhibit No. 1 * * *; that it’s in the court’s discretion to allow us to cross examine where * * * a material witness which we’re obliged to call, * * * testifies differently and surprises the state * * Counsel reviewed other matters, which he said the witness had told him, and again asked the court’s permission to cross-examine the witness and to refresh his recollection by use of the previous statement.

Defendant’s counsel, after examining the exhibit, insisted that there was no material difference between the witness’ testimony and his prior statement; that he had not been a reluctant witness; that he had answered all questions; that cross-examination would tend to “re-emphasize his testimony” and would be unfair to defendant. The court ruled that the State’s exhibit could not be put in evidence, but that the State’s attorney might “cross-examine the witness in regard to such matters as may be in conflict with his testimony,” that is, as to such matters as may be in the State’s Exhibit No. 1, which the defendant now states he does not remember. The mentioned exhibit was before the trial court when the court ruled, but it does not appear in the transcript and it has not been filed as an exhibit in this Court.

On this appeal appellant insists that a reading of Culbertson’s testimony shows he was not a hostile witness; that he had not made inconsistent statements; that “he was not shown to have caused entrapment”; that he had “merely failed to relate facts which the party offering him had been led to believe he would relate”; and, therefore, the “prosecution should not have been allovued to cross-examine the said witness as to a statement given by him prior to the time of the trial.” (Italics ours.) Appellant concedes that the State was required to call the witness in order to make out a submissible case.

Absent any evidence as to what the prior statement contained we think the record fails to show any abuse of discretion or prejudicial error in granting the mentioned permission to cross-examine the witness to the extent permitted. In addition, we have reached the conclusion that such cross-examination as was permitted did not preju-dicially re-emphasize Culbertson’s testimony or have “the effect of getting inadmissible documentary evidence before the jury” so as to deprive defendant of a fair trial.

After the court’s mentioned ruling was made, the cross-examination proceeded as to specific questions alleged to have been asked by Sgt. Howard Morris and answers by the witness. In some instances the prior questions and answers were remembered and in some instances they were not, but even where remembered the witness could not now say that the specific answers previously given were true. Apparently such efforts as were made to refresh the witness’ recollection proved unsuccessful. During this cross-examination on only two occasions were objections made by defendant’s counsel. They were sustained and all the relief asked was granted. Counsel did object to one question on the ground that it “has the effect of putting the statement in evidence.” This objection was sustained and the question limited to a specific matter.

Thereafter, defendant's counsel cross-examined the witness as follows: “Q. Mr. Culbertson, on the night you broke in, * * * at no time during that night did Mr. Ayers suggest that you break into that particular filling station, is that right? A. That’s right, sir. Q. And you did it on your own? A. Yes, sir, I did. Q. And without any encouragement from him? A. No, sir, no encouragement. Q. And any conversation you might have had with him relative to how much money there was in the filling station, when did that take place? A. I believe it was about a week before, I don’t remember exactly, sir. Q. And did he at that time suggest you break in the filling station? A. Not that specially filling station, no, sir. Q. He just simply mentioned that filling station that had eighty dollars in it at the time? A. Yes, sir. Q. And how long after you came out of the station until you were picked up by Mr. Ayers and by Mr. Brown? A. About five or ten minutes, sir. * * * Q. And did they give you any reason for letting you out ? A. No, sir, they didn’t. Q. Did you ask to get out ? A. No, sir.”

On re-direct examination the witness said that before he broke in the station they were “all out of money”; that when he came out of the station he went over to the other side of the road opposite the station and “waited for them to come by” (Ayers and Brown) ; that he saw the car coming “a little bit after I was, went to the west side of the road”; that he “figured they’d be by there,” because he had gotten out of the car; that, after he was in the car and had left the station, nothing was said, but he had the dollar wrapped up in a handkerchief and “I just laid it up in the front seat, dropped it up in the front seat”; and that later he reached up there and got it and paid for the gasoline that was later put in the car. No objections were made or ruled during this re-direct examination. Thereafter, the witness was further cross-examined by the prosecuting attorney about two questions and answers, or statements made to Sgt. Howard Morris (apparently counsel read from the State’s Exhibit No. 1, although that does not appear from the transcript). These questions were as to whose idea instigated this particular “break-in” and what defendant Ayers had said about getting the money for payments on his car. The only objection made to the questions were that they had been asked before. The objection was sustained as to the first question and overruled as to the second which was as to whether the witness had quoted defendant as saying “something about he wanted to make a payment on his car and we would break in there to get it.” The witness then answered: “Not in that filling station exactly, sir. He said that break in and get it, but didn’t say exactly the filling station and I didn’t think nothing about it either, at the time.”

At the close of the State’s evidence the defendant moved for a judgment of acquittal on the sole ground “that the conflicting statements of Marion Culbertson, the only witness for the state on the one issue essential to the state’s case, are of such a nature as to utterly destroy the truth of his statement on such issue.” The motion was overruled and defendant offered no evidence.

Appellant argues that “a reading of the witness Culbertson’s testimony does not show any inconsistent statements or anything to show that he was a hostile witness; and therefore (the) prosecution should not have been allowed to cross-examine the said witness as to a statement given by him prior to the time of the trial.”

It will be noticed that there is no contention that the cross-examination of the witness, as permitted by the court, did in fact prejudicially re-emphasize Culbertson’s testimony, or that any prejudice in fact resulted to appellant by reason of such cross-examination, or that the cross-examination permitted was not properly conducted. Appellant’s position is that it was prejudicial error to permit the cross-examination at all. The assignment of error is in effect limited to the court’s order under which the cross-examination was conducted. No attempt has been made to show wherein or how any specific cross-examination re-emphasized any particular part of Culbertson’s testimony, nor has appellant attempted to demonstrate by particular references that “the effect” was to get “inadmissible documentary evidence before the jury” to the prejudice of defendant.

Appellant relies on the case of State v. Castino, Mo.Sup., 264 S.W.2d 372, 375, where the Court said: “ * * * it is the general rule that a party by calling a witness vouches for his credibility and will not be permitted to cross-examine or impeach him, except in case of entrapment, or where he is hostile. The latter exception is especially applicable where the party is obliged to call the witness. These are considered to be matters within the reasonable discretion of the trial court. It has also been said that it is not sufficient to warrant a party, who puts a witness on the stand, in impeaching such witness (by showing contradictory extrajudicial statements) that the ‘witness merely fails or refuses to tell the facts which he had theretofore related extrajudicially or fails to tell all of such facts, but, in order to warrant impeachment in the mode stated, the witness must go further, and by relating wholly contradictory facts become in effect a witness for the adverse side. In the latter event the party calling the witness is entitled to show that he was misled and entrapped by the witness’ former words and attitude into calling the adverse witness. He is not so entitled, however, when the witness merely fails to relate facts which the party offering him had been led to believe he would relate.’ ”

Culbertson was not impeached by the introduction of any contrary statements. Exhibit No. 1 was not offered or received in evidence before the jury. It was discussed before the court outside the hearing of the jury. It is true the witness on cross-examination did remember that he had been asked a few specific questions and had made certain answers but he said he could not remember whether the answers to those specific questions were true. However, it appears from a review of all of the testimony that the cross-examination of the witness by the counsel for the State made little or no contribution to the State’s case, nor did the cross-examination of the witness by defendant’s counsel materially aid the defendant. Defendant’s motion for a judgment of acquittal at the close of the State’s case recognized, and was based upon, conflicts in Culbertson’s testimony.

The record shows no abuse of the court’s discretion in permitting the cross-examination of the witness to the extent shown by this record. State v. Taylor, Mo.Sup., 324 S.W.2d 643, 648(8); State v. Rack, Mo.Sup., 318 S.W.2d 211, 217(10, 11). The assignment of error is overruled.

We have also examined those matters required to be considered under Supreme Court Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Earl Lewis KIDDOO, Jr., Appellant.
    No. 48942.
    Supreme Court of Missouri, Division No. 2.

    March 12, 1962.

      Thomas F. Eagleton, Atty. Gen., Thomas R. Green, Special Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

The appellant, Earl Lewis Kiddoo, Jr., has been found guilty of attempted burglary.

Since an information charging this particular offense has not been previously considered, the substance of this one is set forth. The information alleges that on September 8, 1960, in Jackson County, Kiddoo, “did unlawfully, feloniously and. burglariously attempt (to) break into and enter a certain building, to-wit: the storeroom of R. D. Mann Carpet Company, a corporation, located at 924-6 Wyandotte, * * * by breaking and bursting the South window of said building there situate, the same being a building in which divers goods, wares, merchandise, and valuable things were then and there kept for sale and deposited, with felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, feloniously and bur-glariously to steal, and did then and there fail in the perpetration of said offense; * * There is in effect or directly an allegation of an attempt, the overt acts constituting the attempt, the intent and a failure, prevention or interception in perpetration, and, after verdict and in the absence of an appropriate specific attack, the information appropriately charges the substantive offense of an attempt to commit burglary in the second degree. V.A.M.S. §§ 556.150, 556.070; 12 C.J.S. Burglary § 43, p. 708; People v. Urbana, 18 Ill.2d 81, 163 N.E.2d 511; Place v. State, (Okl.Cr.) 300 P.2d 666.

It is not necessary to set forth the evidence, for the purposes of this opinion it is sufficient to say that the evidence supports the charge. State v. Pigques, (Mo.) 310 S.W.2d 942; State v. Whitaker, (Mo.) 275 S.W.2d 322.

The original information charging the substantive offense was filed on September 30, 1960. On November 22, 1960, the state filed an amended information in which, under the habitual criminal law (Sections 556.-280, 556.290 RSMo 1959, V.A.M.S.), it was alleged that in 1956 Kiddoo had been convicted of a felony in Ohio. The allegation was that he had been “convicted of a felony, to-wit: Defrauding an Innkeeper and was sentenced therefor to serve a term of from 1 to 5 years at the Ohio State Penitentiary.” Since the prior felony conviction was charged, the court did not give the jury a form of verdict permitting it to fix the punishment, and the jury, accordingly, returned a general verdict finding Kiddoo “guilty of Attempted Burglary, Second Degree.” After the verdict was returned the court informed the jury that the defendant was being tried under the habitual criminal law and for that reason the jury was not given an opportunity to assess the punishment, that “the obligation to do that is placed on the Court.” Thereupon, the court proceeded to find the prior conviction in Ohio, by having the defendant admit it, and fixed his punishment at four years’ imprisonment “for said offense of Attempted Burglary Second Degree under the Habitual Criminal Act.”

These matters, reflected by the “information * * * verdict, judgment and sentence,” appear “upon the record before (the court)” and must be considered even though they were not set forth in a motion for a new trial or otherwise called to the trial court’s attention. Sup.Ct. Rule 28.02, V.A.M.R. The appellant is not represented by counsel in this court and there has been no brief filed on his behalf. Aside from this, however, and aside from the court’s duty, the appellant has himself filed a document in which he asserts “that under the revised Statute of 1959 as pertains to the Ha-Ritual Criminal Ac.t, the defendant was illegally being tried, or.was tried, as pointed out, herein. While the prior conviction charged in Habitual Criminal Information, is a felony offense under Ohio State Statute the same offense is a misdemeanor offense under Missouri State Statute, thereby as the defendant understands that section of the Habitual Criminal Act pertaining thereto, the Habitual Criminal Act was not applicable as charged.” Wherefore, “the writer prays the Court will consider defendants awkward position and concern and will duly consider the point contended * * * when the case is reviewed by the Court.”

When the state relies on a conviction in another state, the applicable section of the habitual criminal act provides that “Every person who shall have been convicted in any of the United States * * * of an offense which, if committed in this state, would be punishable by the laws of this state by imprisonment in the penitentiary” (Section 556.290 RSMo 1959, V.A. M.S.), is punishable as a habitual criminal under section 556.280. And the latter section, incidentally, provides that “If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary * * In this jurisdiction “imprisonment in the penitentiary” is a term of art, it is the language descriptive of a “felony” — “The term ‘felony,’ when used in this or any other statute, shall be construed to mean any offense for which the offender, on conviction, shall be liable by law to be punished with death or imprisonment in the penitentiary, and no other,” V.A.M.S. § 556.020. And a “misdemeanor” is an offense “punishable only by fine or imprisonment in a county jail, or both,” V.A.M.S. § 556.040. In any event, in section 556.290, “The language is plain beyond cavil: defendant is a second offender only if the ‘crime’ of which he was ‘convicted’ in the other jurisdiction would have amounted to a felony here.” People v. Olah, 300 N.Y. 96, 98, 89 N.E.2d 329, 330, 19 A.L.R.2d 219, 221; People v. Kronick, 308 N.Y. 866, 126 N.E.2d 307.

In Ohio, as the information here alleges, “Defrauding an Innkeeper” is a “mixed felony.” Baldwin’s Ohio Revised Code, Sec. 2911.14. But in Missouri defrauding an innkeeper is not a “felony,” and it is not a “mixed felony” and for that reason available to the state under our habitual criminal law (State v. Marshall, 326 Mo. 1141, 34 S.W.2d 29), it is a “misdemeanor” and therefore not available to the state under the statute. State v. Brinkley, 354 Mo. 337, 369, 189 S.W.2d 314, 331. “Any person who shall obtain lodging, food, money, property or other accommodations at any hotel, inn * * * or eating house with intent to defraud the owner or keeper thereof shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not exceeding one hundred dollars, or be imprisoned in the county jail not exceeding three months, or punished by both such fine and imprisonment.” (Italics supplied.) V.A.M.S. § 419.-080.

Even so, it may be asked, how is the appellant Kiddoo unfairly affected? The punishment for an attempt to commit an offense, “If the offense so attempted be punishable by imprisonment in the penitentiary, and a maximum punishment be prescribed therefor, the person convicted of such attempt shall be punished by imprisonment in the penitentiary for a term not exceeding one-half of the longest time prescribed for such offense, * * *.” V.A. M.S. § 556.150(3). The punishment for burglary in the second degree is “not less than two nor more than ten years.” V.A.M.S. § 560.095(2). One half the maximum is five years and the appellant has been sentenced to less than the maximum, four years, and so, irrespective of the habitual criminal act, he has received a sentence within the punishment prescribed for the principal offense. But the difference to the appellant and to a fair trial is this — -it is only when the habitual criminal act is applicable that the court alone fixes the punishment. When the habitual criminal act is not applicable “then the jury shall determine guilt and punishment as in other cases.” V.A.M.S. § 556.280(2). In this case it is entirely possible that the jury might have fixed his punishment at two years’ imprisonment (V.A.M.S. § 560.095(2)) rather than four years. Because the appellant was improperly tried and his punishment improperly fixed under the habitual criminal act the judgment is reversed and the cause remanded. State v. Krebs, 336 Mo. 576, 583, 80 S.W.2d 196, 200.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: BOHLING, Commissioner.

text:
    STATE of Missouri, Respondent, v. John Vernon DECKARD, Appellant.
    No. 48706.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied March 12, 1962.

      No appearance for appellant.
    Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, Asst. Atty. Gen., for respondent.
   BOHLING, Commissioner.

This is an appeal by John V. Deckard, authorized by a special order granted under Supreme Court Rule 28.07 (42 V.A. M.S.) on March 13, 1961, and prosecuted by defendant as a poor person under leave granted by the trial court, from a judgment imposing a sentence of ninety-nine years’ imprisonment for forcible rape (§ 559.260) under the habitual criminal act (§ 556.280). (Statutory references are to RSMo 1959 and V.A.M.S.)

This defendant was represented in the trial court by counsel of his own choosing. He has filed writings that purport to be statements, briefs and arguments. In them he makes assertion after assertion that is refuted or not established by the record he presents for review; and he denounces his trial counsel (stating he paid counsel over $1,000), the prosecuting attorney, the sheriff, the trial judge, and the State’s witnesses. We consider these filings of no assistance to the court or to the defendant on the issues for review.

The review of the trial of a case in the circuit court by an appellate court is on the duly authenticated record made in the trial court. Circuit courts speak only through their records, and their authenticated records import absolute verity, are binding upon the appellate courts, and preclude the consideration and determination of asserted errors not established by the record presented. State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 339[2]; State v. Harrison, Mo., 299 S.W.2d 479, 482[2]; State v. Johnstone, Mo., 335 S.W.2d 199[14]. Certiorari to the Supreme Court of the United States was denied in each of these cases.

No motion for new trial was filed in this case and matters required to be presented to the trial court in a motion for new trial are not preserved for review under this record. State v. Cook, Mo., 327 S.W.2d 854; State v. Graves, 352 Mo. 1102, 182 S.W.2d 46[3]; State v. Hardy, 339 Mo. 897, 98 S.W.2d 593, 595[4, 7]; State v. Hurtt, Mo., 338 S.W.2d 876[1], certiorari denied 364 U.S. 916, 81 S.Ct. 281, 5 L.Ed. 2d 229; State v. Burns, Mo., 328 S.W.2d 711, 714[7].

We have for consideration the matters mentioned in Sup.Ct.R. 28.02, formerly matters appearing as part of the record proper. § 547.270; Cook and Hardy, supra, among others.

The charge of forcible rape in this information is in the language of § 559.260 and is to like effect as charges held sufficient in form and substance in State v. General Armstrong, 167 Mo. 257, 266(I), 66 S.W. 961, 963(1); State v. Holman, 230 Mo. 653, 654, 132 S.W. 695, 696. See State v. Egner, 317 Mo. 457, 296 S.W. 145 [2], The information also sufficiently charged defendant, under the habitual criminal act, with having been convicted of two prior felonies, imprisoned in the penitentiary for each of said offenses and thereafter duly discharged therefrom. § 556.280; State v. Brewer, Mo., 338 S.W.2d 863, 866[2],

The parties announced ready for trial on October 10, 1960, and defendant, present in court with his counsel, entered a plea of not guilty upon arraignment. The court, outside the presence of the jury panel, heard the evidence on the habitual criminal charge and announced its finding that defendant had been convicted of two prior felonies within the provisions of § 556.280. See State v. Barnes, Mo., 345 S.W.2d 130, 133; State v. Griffin, Mo., 339 S.W.2d 803, 806[8,9], certiorari denied 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849. The jury was empaneled and sworn. The evidence favorable to the State justified the following findings: The prosecuting witness, 20 years old, and her husband, aged 25, were married July 2, 1960. On July 5, 1960, they were on their honeymoon in a cabin of a motor court at Rockaway Beach, Taney County, Missouri. The husband was proceeding to investigate a noise at the door about 10:30 p. m. when a man, positively identified at the trial by prosecutrix and her husband to be defendant, entered with a hunting knife in his hand. He put the knife blade at the husband’s throat, had him lie face down on the bed, put his hands behind his back, bound his hands and feet, blindfolded him, pushed him off the bed and, lifting up the bed, put it on top of the husband. Prosecutrix testified: “He told me if I didn’t do what I was told he was going to kill both of us.” He forced prosecutrix into the bathroom. He threatened both of them when she hesitated. He had her remove her panties, had her lie on the floor, and had sexual intercourse with her, holding the knife at her throat. He got up and walked out. Prosecutrix helped free her husband and they reported the occurrence to the owner of the cabins and the officers. There was additional corroborating evidence. The jury found “defendant guilty of rape as charged in the information.”

Following the return of the verdict on October 11, the Court stated its findings, among others, that defendant had served two prison terms for felonies and been duly discharged therefrom prior to the commission of the rape upon prosecutrix, and assessed defendant’s punishment at ninety-nine years’ imprisonment. The record establishes that defendant was last discharged from prison on June 25, I960; that the offense on trial was committed July 5, 1960, and the punishment assessed is within that authorized by § 559.260. The Court granted defendant’s request to file a motion for new trial on or before November 10. On December 16, 1960, no motion for new trial having been filed and defendant’s counsel stating a motion for new trial would not be filed, defendant was granted allocution, and judgment and sentence were pronounced and entered. Defendant and his counsel were present throughout all the foregoing proceedings.

Our review, in part a matter of grace, of the record discloses no ground for interference with the judgment of the trial court. It should he and is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Now V.A.M.R.Crim. Rule 28.07.


text:
    Donie WATT, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 48807.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.

      V. James Ruddy, St. Louis, for appellant.
    Edmund W. Albright, William L. Mason, Jr., St. Louis, for respondent.
   HYDE, Judge.

Action for damages for personal injuries; verdict and judgment for plaintiff for $25,-000.00 against defendant St. Louis Public Service Company which has appealed and is hereinafter referred to as defendant. Plaintiff was injured in a collision between defendant’s bus on which she was a passenger and a truck. The jury found for the truck owner (who made the defense of an unauthorized person driving his truck) and plaintiff has not perfected an appeal from the judgment in favor of the truck owner.

Defendant alleges error in giving Instructions 1 and 4 at plaintiff’s request and in refusing Instruction A requested by defendant. Instruction 4, as hereinafter shown, assumed the controverted issue of negligence. Instruction 1 was the main verdict-directing instruction for plaintiff against defendant, which submitted violation of a city ordinance limiting speed of vehicles to 15 miles per hour in its Central Traffic District. Since defendant’s main obj ection to Instruction 1 is in effect a claim that it was not supported by the evidence, we state the following facts which were-shown.

Defendant’s bus was going north on Ninth Street, a one-way northbound street. The dump truck involved was going west on Lucas Street, a one-way westbound street. There was a building on the southeast corner of the intersection, which obstructed the view to the east and south. In front of this building, the south sidewalk on Lucas was seven feet wide and the east sidewalk on Ninth was twelve feet wide. Each street was 36 feet wide. Two passengers estimated the speed of the bus at 25 to 30 miles per hour; one of them estimated “the truck was going about as fast as the bus was.”' However, he said “the truck got into the intersection first” and that the collision “took place to the left of the center of that intersection.” The front of the bus struck the side of the truck just behind the cab after both attempted to swerve; the bus to the left and the truck to the right. No application of the brakes of the bus was noticed. The truck was overturned and ended on the sidewalk on the northwest corner. The bus driver said he had been driving 18 miles per hour between Washington and Lucas but slowed to 8 miles before entering the intersection and could have stopped at that speed in 25 feet. He estimated the speed of the truck at 25 to 30 miles per hour and said he did not see it the first time he looked approaching the intersection but after proceeding into the intersection got “a short glance” of it near the west end of the building on the corner. In a prior deposition, it was shown that the bus driver said he never saw the truck before the collision and he did not deny making such answers. The driver of the truck testified by deposition that he was coming up to the intersection at 10 to 15 miles per hour but slowed up and changed gears before entering, then saw the bus about three car lengths (estimating a car length at 10 to 15 feet) from him going about 20 miles per hour. (He also said 15 or 20.) He said he swerved to the right but the bus ran right into him. He also said he entered the intersection first and was going about 10 miles per hour when struck.

Defendant says as to Instruction 1 that it was error to submit violation of the speed ordinance because it claims the evidence conclusively shows that violation of such ordinance was not the direct and proximate cause of the collision. Defendant’s argument is: “There was no evidence in the instant case from which the jury could find that the collision could have been avoided had the defendant been traveling 15 miles per hour, or under,” citing Bauman v. Conrad, Mo.App., 342 S.W.2d 284, 288, where it was said: “In other words, excessive speed is not the proximate cause unless it prevents the operator of the vehicle traveling at said excessive speed from avoiding the accident. It must be shown, as we have said, that the accident would not have occurred except for the excessive speed shown by the evidence.” Defendant points out that there was no evidence of stopping distance at 15 miles per hour or at any speed except at eight miles per hour; and also that plaintiff failed to show the bus could have been swerved in time to have avoided the collision if going 15 miles per hour or less. Defendant also cites such cases as Callanan v. United Railways Co. of St. Louis, Mo.App., 232 S.W. 213; James v. United Railways Co. of St. Louis, Mo.App., 236 S.W. 1089; Maiwald v. Public Service Co. of New Hampshire, 93 N.H. 276, 41 A.2d 247; Aydelotte & Young v. Saunders, 182 Okl 226, 77 P.2d 50; Dallas Railway & Terminal Co. v. Walsh, Tex.Civ.App., 156 S.W.2d 320; Heagney v. Sellen, 272 Wis. 107, 74 N.W.2d 745, 75 N.W.2d 801; and 65 C.J.S. Negligence § 265, pp. 1195, 1197, to show that plaintiff has the burden of showing negligent speed was the proximate cause of the collision and her injury.

In the Bauman case, the only evidence as to violation of an ordinance, limiting speed to 30 miles per hour, was the testimony of the plaintiff therein who said she only saw the car “about a second or two” before the collision and estimated its speed as “about 35 miles per hour,” but also said the car “was between one and two feet from the car in which she was riding when she first saw it.” The court pointed out there was no evidence as to the speed of the car in which she was riding or whether it had stopped at a stop sign, the speed of the other car at any other point, the width of the streets, the location of buildings or to show the relative positions of the cars before the collision. In this case, there were no stop signs, there was ample evidence of speed in violation of the ordinance with passengers estimating the bus speed at 20 to 30 miles per hour approaching and into the intersection, recollecting no application of brakes and saying the truck was in the intersection first and that the bus was to the left of the center of the street. There was also a substantial basis for finding that the bus driver did not see the truck until the collision occurred. “What is a proximate cause is ordinarily a jury question,” Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 955, and cases cited; see also Thebeau v. Thebeau, Mo.Sup.Banc, 324 S.W.2d 674. “Causal connection, it is true, must be proved by the evidence, as a fact, and not be left to mere speculation and conjecture. The rule, however, does not require that there must be direct proof of the fact itself. This would often be impossible. It is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred,” Pentecost v. St. Louis Merchants’ Bridge Terminal R. R. Co., 334 Mo. 572, 66 S.W.2d 533, 536, and cases cited; see also Donnelly v. Goforth, Mo.Sup., 284 S.W.2d 462; Lyon v. Southard, Mo.Sup., 323 S.W.2d 785, 787. Our conclusion is that the jury reasonably could have found that under the facts as to speed and position of the truck, location of the bus, width of the streets and visibility at the intersection, which they reasonably could have believed, an alert bus driver would have had the ability to avoid a collision if the bus had been kept within the ordinance speed. Therefore, we hold that there was evidence to support this submission made by Instruction 1 and that it is not erroneous on that ground.

Defendant also claims that Instruction 1 assumed that plaintiff was injured which it says was “a hotly disputed fact.” This part of the instruction was as follows: “[A]nd if you further find that in so violating said ordinance the defendant St. Louis Public Service Company failed to exercise the highest degree of care and was negligent and that said collision and injury to plaintiff occurred as a direct and proximate result of such negligence, then your verdict should be in favor of the plaintiff.” As defendant says this does tell the jury that plaintiff was injured although, as plaintiff points out, the instruction earlier required the finding that the bus collided with a truck “thereby causing plaintiff to be injured.” Plaintiff says: “Surely an instruction may assume any fact, after it once requires the jury to find that fact,” citing Elgin v. Kroger Grocery and Baking Co., 357 Mo. 19, 30, 206 S.W.2d 501, 508. To do so may not be reversible error under the whole submission in some circumstances and that is what the cited case must mean. (See Costello v. Kansas City, 280 Mo. 576, 593, 219 S.W. 386, 391, cited in the Elgin case, which in effect so ruled.) However, we do not agree that it is proper because an instruction is conflicting in its terms, and may be misleading, when it requires a fact to be found and then assumes the fact. (See Piehler v. Kansas City Public Service Co., 360 Mo. 12, 226 S.W.2d 681, 685; Robinson v. Kansas City Public Service Co., 345 Mo. 764, 137 S.W.2d 548, 553.) Because of the view we take as to Instruction 4, we need not decide whether this assumption in Instruction 1 alone would be reversible error but on retrial the whole above-quoted part should be rewritten so as not to assume either injury or ordinance violation.

Instruction 4 (submitting concurrent negligence of both defendants) plainly assumed the negligence of defendant and plaintiff frankly so admits, saying this instruction “left out the ‘if anys’ when referring to the negligence of the two defendants originally in this case, and did not refer to any other instructions, nor to the instructions in general, for any submission of such negligence.” However, plaintiff argues this should not be held prejudicial because a finding of negligence was required by Instruction 1 and also by the burden of proof instructions (8 and 9) given by each defendant. However, Instruction 8 concerned only the co-defendant’s negligence and Instruction 9 was a cautionary instruction not mentioning negligence. Instruction 4 authorized a verdict against both defendants upon finding that the truck driver was operating the truck on behalf of the defendant Wolford and in the course of his business and the further findings “that the negligence of the defendant, St. Louis Public Service Company, and the negligence of the defendant Wolford was joint and concurrent and contributed together to cause the collision in question, and that the plaintiff was injured as a direct and proximate result of the negligence of the defendant St. Louis Public Service Company and the defendant Wol-ford.” Of course, it is error to assume a controverted issue. As said in the Piehler case, supra, 226 S.W.2d 1. c. 684, such an assumption “tended to give plaintiff an advantage to which he was not entitled” and “ordinarily, when a controverted factual issue is first assumed it is not cured by subsequent requirements that it be found.” Surely this would likewise be true vice versa. As to assumption of controverted matters see 53 Am. Jur. 477, Trial, Sec. 605; 88 C.J.S. Trial §§ 280-281, p. 752; Willey v. Fyrogas Co., 363 Mo. 406, 251 S.W.2d 635, 644 (assuming negligence); George v. Allen, 362 Mo. 971, 245 S.W.2d 848, 850; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 567, and cases cited.

Plaintiff says that we should look to the charge as a whole, citing Terrell v. Missouri-Kansas-Texas R. Co., Mo.Sup., 327 S.W.2d 230, 237, and also says the jury was not misled but ignored these assumptions because it rendered no verdict under Instruction 4 against both defendants. However, when we look at the charge as a whole, we find that Instructions 1 and 3 authorized separate verdicts against each defendant alone on exceeding the ordinance speed. Then Instruction 4 authorized a verdict against both, making the assumption that each was negligent. Instruction 5 authorized a verdict for defendant Wolford if the truck driver, whether negligent or not, was without authority to drive. Thus the jury could have considered Instruction 4 as assuming both drivers negligent but because of the agency submission found for Wolford on that theory. Our conclusion is that this conflicting submission was not fair to defendant, misleading to the jury and was prejudicially erroneous. Therefore it is not necessary to consider defendant’s contentions concerning Instruction 13, as to certain items of damages not being supported by evidence, and concerning excessiveness of the verdict.

However, because this case may be retried, we consider defendant’s allegation of error in refusing Instruction A, claimed to submit the converse of an essential element of plaintiff's case, namely proximate cause. Defendant cites cases holding a defendant has the right to an instruction submitting the converse of any essential fact issue essential to the plaintiff’s case and authorizing a defendant’s verdict on finding such claimed fact was not true, such as Alberty v. Sunshine Biscuit Co., Mo.Sup., 321 S.W.2d 418 (no contact between vehicles); Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95; and Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587 (both submitting no unusual jerk); and McCarty v. Milgram Food Stores, Inc., Mo.Sup., 252 S.W.2d 343 (no exclusive possession and control of a sign in a res ipsa case) ; as to converse submissions see also Dell’Aria v. Bonfa, Mo.Sup., 307 S.W.2d 479; Liebow v. Jones Store Co., Mo.Sup., 303 S.W.2d 660; Schaefer v. Accardi, Mo.Sup., 315 S.W.2d 230, 234. Since proximate cause was a jury issue, and one that had to be and was submitted by plaintiff, defendant was entitled to have the converse of this issue put to jury as an essential element of plaintiff’s case. “Perhaps the best, as well as the most widely quoted, definition is the following: The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” 38 Am. Jur. 695, Negligence, Sec. 50; see also 65 C.J.S. Negligence § 103, p. 645; Black’s Law Dictionary, 3rd Ed., 1457; Thebeau v. Thebeau, Mo.Sup.Banc, 324 S.W.2d 674, 678, and cases cited; Larsen v. Webb, 332 Mo. 370, 58 S.W.2d 967, 970, 90 A.L.R. 67 (violation of a speed ordinance). However, Instruction A only told the jury the plaintiff must prove “that the collision would not have occurred” if the bus had been traveling within the ordinance speed. This did not put to the jury the whole issue of proximate cause but only one restricted part thereof (a single clause of the definition), without regard to the duty of the bus driver to exercise the highest degree of care or to the facts as to the speed and position of the vehicles which the jury may have believed. A correct way to submit this issue would be to give the jury the whole definition and require a finding in accordance therewith that the negligence submitted was not a proximate cause; or it could be done by submitting findings of fact under which the negligence submitted could not be a proximate cause, as may be done in sole cause submissions.

The judgment is reversed and the cause remanded.

All concur.