text:
    Carl Oliver McDONALD, Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.
    No. 51262.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 11, 1966.

      Thomas R. McGinnis, St. Louis, Cullen Coil, Jefferson City, for respondent.
    Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, Eugene F. Jordan, St. Louis, for appellant.
   PRITCHARD, Commissioner.

In this suit for personal injuries by respondent railroad employee against his employer tried to a jury under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., respondent has judgment, after a $10,000 remittitur ordered by the trial court, for $38,541.

Appellant, seeking reversal and a new trial, urges in its Point I error in the trial court’s giving of respondent’s requested Instruction No. 5 on the measure of damages, contending (A) that it referred generally to the “occurrence shown in evidence” when the evidence clearly showed more than one occasion of injury, and that the instruction permitted damages to be awarded for either or both injuries: (B) that the medical testimony is conflicting and does not clearly support or authorize a finding that respondent’s conditions set forth in the instruction resulted from or were caused by the accident of July, 1962, and same permitted the jury to speculate on such cause; and (C) that the instruction allowed the jury to consider and speculate as to loss of earnings, both past and future, when there was no clear evidence to support such consideration. By Point II appellant urges that the judgment is excessive.

The evidence did reveal that respondent had suffered a previous head injury to that alleged to be the result of the July, 1962, accident. Respondent testified that in the fall of 1958 he was hurt in the back of the head by being struck with some unknown object, rendering him unconscious. He went to a Fulton, Missouri, hospital for three or four days, and was under the care of a doctor. During the time he was in the hospital respondent had some draining from his ear, and had headaches at that time. He recovered from the injuries suffered in the mishap, and thereafter worked at cutting stove wood for sale, using a chain saw and hauling the wood to customers. He climbed and trimmed trees from 1958 on. He worked for one Preston McCall cutting and sawing logs, baling hay, driving cattle and hauling corn. After the fall of 1959 he slaughtered beef and hogs two days a week, that work being strenuous and heavy, for two winters of that seasonal work. He was able to do that work without difficulty. On other than the two days a week during that time, he helped several farmers, and helped tear down and load on a truck metal from a hopper 25 feet high. All of this time respondent worked regularly, and had no difficulty doing the work. Respondent’s various employers during this time testified similarly that he was a dependable worker, doing heavy work, and that they had never heard him complain about any physical condition or inability to do the work, or of dizzy spells.

On February 18, 1961, respondent was examined for employment with appellant by Dr. T. C. Beckett, a doctor on its medical staff at Boonville, Missouri. A general examination was given, including: vision, hearing, blood pressure, height, weight, color of eyes and hair, and the eyes, ears, nose and throat. Nothing abnormal was revealed about his health: his reflexes were normal, his hearing was normal in his right and left ear (twenty-twenty). From his examination respondent was in good health, and Dr. Beckett recommended him for employment as being capable of doing the strenuous work of the railroad.

On July 2, 1962, respondent and his foreman were engaged in fixing the brakes on the railroad motor car which had not been working well for several days. The foreman told respondent to get a tarpaulin and lay it between the rails, to lie on it, and the foreman would shove the motor car over him. This was done, and as they were working respondent heard the foreman say, “Let the damn thing go.” Before respondent could get straightened around and lie prone again between the rails, the motor car was moving and he was hit on the side of the head by the grease housing on the axle, occasioning the injury for which he sued.

After being struck on the head, respondent lay on the track for two to four minutes, then got up and sat on the motor car for IS or 20 minutes. He was dizzy and his head was numb. Later as the foreman and he continued their work at a point about 10 miles away, respondent noticed some whitish material streaked with pink which had come out of his ear which was very sore and he could hardly hear out of it. He took aspirin to take care of his headache and dizziness, and a ringing in his ear. After 4:00 p. m. respondent went home where he lay across the bed until about 9:00 p. m. He felt nauseated and vomited, and found blood on his pillow the next morning.

Respondent saw a Dr. Hill on July 5, 1962, who examined him, but did not treat him, and recommended that he see a company doctor. He then saw Dr. Beckett on July 6, who examined him and sent him to the hospital for X-rays. There respondent stayed for the rest of the week, during which time the doctor told him that his inner ear was damaged and that he had to give medicine through respondent’s nose. Upon release, respondent’s dizziness was not so bad except when he bent over. At the suggestion of his counsel, respondent saw Dr. Robert Lam of St. Louis, Missouri, in August, 1962. In September, 1962, he saw Dr. Beckett again and returned to work on the extra gang of the railroad until February 23, 1963, when he quit. During this time he still had dizziness, headaches and a “buzzing” in his ear, all of which would be aggravated when he bent over. He also was bothered by nausea and vomiting, especially in the morning. Subsequent to quitting the railroad, up to July, 1964, respondent suffered four “blackouts,” and testified that prior to July 2, 1962, he had never suffered such.

Dr. Lam testified that in his final diagnosis respondent had a traumatic concussion with the residuals of that manifested by postural dizziness, deafness in the left ear (25 to 30 per cent hearing loss), headaches, personality changes and a convulsive disorder manifested by akinetic seizures (a form of epilepsy) — a disturbance of consciousness, suddenly becoming unconscious, not knowing what he was doing, but without having a typical convulsion as a grand mal.

There was evidence from respondent’s hospital record entered following his 1958 head injury (from being hit on the head by beer bottles and possibly a brick) that he was unconscious for the 24-mile ride to the hospital and for some time after his admittance. He had a fracture at the base of the skull, an absent abdominal reflex and an upswing toe reflex, and that he was bleeding from the left ear intermittently for two days. The significance of the loss of abdominal reflexes and the upswing toe reflex was testified to by Dr. Lam (respondent’s medical expert) to “mean that the trouble was on- the right side of the brain” and a “right-sided brain disturbance.” Dr. George E. Roulhac (appellant’s medical expert) testified that the upswing toe reflex is a definite sign of brain injury, and that he felt that respondent’s convulsive disorder was more likely related to the 1958 injury, because of loss of consciousness for a lengthy period of time and the upswing toe reflex, than the 1962 injury, because it only dazed him and did not render him unconscious. There was thus an issue of whether respondent’s condition at trial time was the result of two different injuries. However, under other evidence of causation, and considering respondent’s testimony that he recovered from the 1958 injury, and all the instructions of the court, we are of the opinion that the jury could not have been misled as to which injury was referred to in Instruction No. 5 as being “the direct result of the occurrence shown to you in evidence.” Respondent’s main verdict-directing Instruction No. 2 referred to the second day of July, 1962, as the day when he was working on the motor car and that he then sustained injury to his person as a direct result of being struck by a portion of the underneath portion of the car. Instruction No. 3, given at appellant’s request, told the jury in part that before it could return a verdict against appellant, “You must further find and believe from the evidence that the condition of which plaintiff complains, resulted from an occurrence on July 2, 1962 and not from his injury of October of 1958.” Instructions to the jury must be read together, and when done so in this case, as above set forth, it is apparent that there was submitted no misleading, confusing issue, or puzzling situation (as contended by appellant), that would permit the jury to award damages for either or both injuries suffered by respondent in 1958 and 1962. See Perry v. Stockhoff Supply Company, Mo., 356 S.W.2d 92, 95 [1]; Coit v. Bentz, Mo., 348 S.W.2d 941, 945 [6,7]; Faught v. Washam, Mo., 329 S.W.2d 588, 596 [10-12] ; Goodman v. Missouri Pacific Railroad Company, Mo., 312 S.W.2d 42, 48 [6]. Appellant’s cited case of O’Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, on the issue of whether a removal of a portion of plaintiff’s ulna was caused by a thumb injury or subsequent infection, is not in point because there no clarifying instruction was involved. Appellant’s Point 1(A) is overruled.

Under Point 1(B) the contention is made that the medical testimony is conflicting and did not show causation of plaintiff’s 1962 injury and his condition (of past and future pain and suffering, permanent injuries, etc.) as set forth in the damage Instruction No. 5. Appellant does not point out wherein, if so, respondent’s medical evidence in itself is conflicting. From our reading of briefs and the record, the only conflict in medical testimony is between respondent’s and appellant’s witnesses, and that conflict is, of course, to be resolved by the jury. With respect to the second portion of the contention, Dr. Lam was given a hypothetical question covering respondent’s previous and present physical condition, and the accident of July 2, 1962, and was asked if he had an opinion, based on reasonable medical certainty, as to whether or not the incident of July 2, 1962 caused the condition as he found it. His answer was “Yes, sir.” Appellant says the answer did not establish causation between the injury and the accident of 1962. Dr. Lam later testified that respondent’s seizures all relate back to the injury received on the accident of July 2, 1962. At another place Dr. Lam testified concerning the 1962 accident of respondent (a final diagnosis) : “In my opinion, he did not have a mild injury. I think he had sharply localized injury to the base of the skull close to the ear enough to fracture the petrous bone, so that he had an otorrhea. Now, apparently there is enough evidence to show that he did have a flowing of fluid from that ear right after the injury, and he had also deafness; so to me this means that a fairly severe injury hurting, injuring that eighth nerve had occurred. But the injury, the location, was not over the upper portions of the skull enough to affect the brain as a whole; so he did not lose consciousness. This mainly was an injury at the base affecting the eighth nerve and subsequently causing him to have these blackouts, because the base of the brain, which controls consciousness, is in this area. So the persistent headache, the dizziness, the deafness, to me indicate very clearly he had a fairly severe injury, without loss of consciousness, affecting the base of the brain and the base of the skull. * * * He has akinetic seizures, in which he suddenly blacks out.” (Our emphasis.)

It is true that the doctor’s answer to the hypothetical question first above mentioned was only that he had an opinion as to causation and he did not state what that opinion was. However, the further testimony of Dr. Lam was that respondent’s seizures related back to the 1962 accident. (We note that appellant’s medical witness, Dr. Roulhac, testified that the condition he found related back to the 19S8 injury.) The reasonable construction, in the context used, of both these doctors’ words “related back” is that the conditions found were caused by the accidents referred to. Dr. Lam further testified that blackouts were caused by the injury to the eighth nerve, and physical conditions then described by him indicated to him that respondent had a fairly severe injury. Of some value also is respondent’s own testimony of his conditions before and after the July 2, 1962 incident. The testimony, reasonably construed, established with reasonable certainty the causation of respondent’s injuries, and that is all that is required. The form of the language used does not deprive the statement of its evi-dentiary value. Walker v. St. Louis Public Service Co., 362 Mo. 648, 243 S.W.2d 92, 95; and compare Ketcham v. Thomas, Mo., 283 S.W.2d 642, 649 [10]. This is not a case where the medical expert used words such as “might” or “could” in connection with causation so as to render the testimony insubstantial. Cox v. Missouri-Kansas-Texas Railroad Co., 335 Mo. 1226, 76 S.W.2d 411, is therefore of no help to appellant. Point 1(B) is overruled.

Appellant says that there was no clear evidence to support a consideration by the jury of loss of earnings, past and future, of respondent [Point 1(C)], as submitted in Instruction 5. Respondent earned $88.00 for a 40-hour week. A calendar (Plaintiff’s Exhibit 7) was admitted into evidence showing the days worked by respondent (which is the same as interrogatories answered by appellant) until he quit in February, 1963. Thereafter, respondent did some commercial fishing. He received a 30-horsepower outboard motor for two weeks’ work operating scales in weighing sand trucks for a Mr. Laughlin from whom he received no salary. He owned a 33 acre farm but had no income from it since 1963 (when he sold some hogs, the value of which was not shown). In answer to a question as to what his earnings had been since he terminated with the railroad, respondent testified: “Wouldn’t be hardly anything. Wouldn’t be enough to even count. Make a few dollars fishing to buy groceries.” Appellant says the value of this outside remuneration not being shown permitted the jury to speculate as to “actual” loss of earnings, and there was no substantial evidence upon which it could base a determination thereof with any degree of reasonable certainty.

Appellant cites Seymour v. House, Mo., 305 S.W.2d 1. There was in that case a total absence of the plaintiff’s compensation as a concrete finisher before the injury, or what he had received after the injury in performing other work in supervising, dealing with contractors, taking on jobs and generally running a concrete construction business (which was held in his wife’s name as a straw party), or of the profits of the business. The court held properly that there was insufficient evidence upon which the jury could determine past earnings as required by the damage instruction given. The court, in the Seymour case, loc. cit. 305 S.W.2d 3 [1-3], stated the rules upon recovery of personal earnings and wages as an item of special damages: “In order to recover for a loss of past earnings as special damages, the evidence as to the value thereof must be reasonably certain, so as to eliminate mere speculation. (Citing cases) Or, as sometimes expressed, the evidence must afford a basis for a reasonable estimate of the amount of the loss.” Here, the jury was able to determine how much respondent received from appellant prior to the termination of his employment. Thereafter, all respondent received was some amount from the sale of hogs, an outboard motor for services in weighing sand trucks, and a few dollars from fishing to buy groceries — '“hardly anything.” Under the evidence it could reasonably be found that respondent’s injuries were such that he suffered damage by reason of no longer being employable in his position with appellant where his wages were $88.00 per week. Although respondent’s evidence does not show with exactitude how much he was able to reduce his wage loss by outside employment (selling 1963 hogs, commercial fishing, and the value of an outboard motor for two weeks’ work), yet the uncertainty as to these relatively small amounts will not preclude recovery. Shechter v. Brewer, Mo.App., 344 S.W.2d 784, 791 [7]. See also Northcutt v. St. Louis Public Service Co., Mo.App., 48 S.W.2d 89, 91 [2, 3], where the plaintiff showed what his earnings were prior to injury, but did not show definitely what his earnings were in different employment, as a salesman, subsequent to injury. It was there said: “The plaintiff, being injured by the tor-tious act of the defendant, is not required to show his loss with mathematical accuracy. A reasonable degree of certainty, in view of the nature of the case, is all that is required of him. (Citing cases) Where, as here, the plaintiff shows what his earnings were prior to his injury, in his usual work or employment for which he was peculiarly fitted, and which he was compelled to abandon on account of his injury, he ought not be disallowed substantial compensation for loss of earnings because he is unable to show with precision the amount he actually earned, or was able to earn, in some other work or employment, subsequent to his injury.”

As to evidence of loss of future earnings, the medical evidence is that respondent is not industrially employable, and his condition is permanent. This is sufficient to take to the jury that issue, and for it to consider and determine what, if any, earnings respondent would lose in the future. Since his injury, respondent has earned very little. Throughout his life, the jury could determine his loss of earnings upon the factual viewpoint of what he would have earned but for his injury. Coffman v. St. Louis-San Francisco Ry. Co., Mo., 378 S.W.2d 583, 600. See also McGarvey v. City of St. Louis, 358 Mo. 940, 218 S.W.2d 542, 546 [5, 6] (a case primarily involving impairment of ability to work) ; Belisle v. Wilson, Mo., 313 S.W. 2d 11, 17 [7—11]. In its briefs, appellant points up the distinction between future loss of earnings and impairment of ability to work. “This distinction is made on the theory that an impairment of the power to work is an injury to a personal right ‘ * * * wholly apart from any pecuniary benefit.’ ” Bone v. General Motors Corporation, Mo., 322 S.W.2d 916, 922 [5, 6], 71 A.L.R.2d 361. Here, Instruction No. 5 did not submit impairment of ability to work, but allowed the jury to consider such loss of earnings as it might find and believe from the evidence respondent would with reasonable certainty sustain in the future as a result of his bodily injuries. Although there was testimony from Dr. Lam, respondent’s medical expert, that respondent should not work around machinery and in high places and was not “industrially employable,” there was evidence from which it might be inferred that he could do some work (i. e., he weighed sand trucks and did some commercial fishing) but he testified that his past income from these pursuits was “hardly anything.” From the size of this verdict, it is apparent that the jury did not allocate a total loss of future wages based upon past wages for the 40 odd years of respondent’s life expectancy. The jury was entitled to find, upon this record, that respondent’s loss of earnings in the future would be substantial, considering the permanency of his injuries, and the fact that he could no longer do the type of work for which he was qualified. Point 1(C) is overruled.

Appellant claims the judgment is excessive. At the time of the accident, July 2, 1962, respondent was 30 years old. At the time of trial he was 32 years of age. According to U. S. Department of Health, Education and Welfare, National Office of Vital Statistic’s life tables read into evidence, respondent’s life expectancy (age between 30 and 35 years) was 40.7 years. The evidence of injury, taken most favorably to respondent (Riggs v. Metcalf, Mo., 315 S.W.2d 791, 796 [6]), is that he suffered an injury to his head on the date of the accident resulting in ringing of the ear, loss of hearing 25 to 30 per cent in the left ear, and a permanent condition of akinetic seizures manifested by blackouts, four of which had been suffered by respondent to the time of trial. He is no longer industrially employable. “No one would hire him with these blackouts, because he is a danger to himself and others, particularly in operating machinery or if he is working at heights above the ground.” Respondent’s hospital bill was $397.31, and his doctor’s bill was $560.00. He will need constant medical treatment in the future at a cost of $300.00 to $400.00 per year. If he were hospitalized there might be a cost of $750.00 to $1,000.00 per year. His loss of earnings to the time of trial was about $9,000.00. His wages at $88.00 per week amounted to $4,577.00 per year. When he quit work on the railroad, February 23, 1963, he was dizzy and had headaches. At trial time his nausea continued and he would vomit, especially early in the' morning. He had done practically no work after leaving the railroad; he was irritable, and suffered a personality change, and has not been emotionally stable. Respondent’s doctor’s final diagnosis is set forth above under Point 1(B).

The jury reasonably could have found that respondent’s special damages to time of trial were in excess of $10,000.00. He would incur further medical costs of $300 per year for his lifetime. His loss of wages could amount to $4,500.00 per year for the rest of his life at manual labor which he is no longer able to do. We are of the opinion that under the evidence the judgment, as remitted from the verdict, is not excessive. Appellant’s cases do not demonstrate that this judgment offends the rule of reasonable uniformity of judgments for comparable injuries. A $60,000.00 judgment was reduced to $45,000:00 for a 19 year old youth with 50 per cent permanent disability for doing manual labor, whose medical expenses were $2,172.62, and who had no loss of wages or specific showing of impairment of earning capacity, in Caraway v. Atchison, Topeka and Santa Fe Railway Co., Mo., 318 S.W.2d 331. Gain v. Dorward, Mo.App., 357 S.W.2d 193, involved injuries to a 35 year old housewife, with no evidence of loss of earnings, wherein the court of appeals sustained a $10,000 judgment upon verdict.

In cases where excessiveness of judgment is urged, the rule is that each case must be decided upon its own peculiar facts. Myers v. Karchmer, Mo., 313 S.W. 2d 697. The age of the plaintiff, and the nature, extent, and permanency of his injuries are paramount factors in determining such issue. Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107. As in any case, the weight of the evidence as to the injuries suffered, and the results thereof (as to permanency, incapacity to work, loss of income, and the nature of such injuries), is for the jury to determine. Breland v. Gulf, Mobile and Ohio Railroad Company, Mo., 325 S.W.2d 9, 14 [1], We are not persuaded that for this respondent with 40.7 years expectancy of life, who had loss of wages and medical expenses of over $10,000.00 at the time of trial, with 25 to 30 per cent loss of hearing in his left ear, a continued ringing in his ear, who has suffered personality changes, and who is industrially unemployable for the remainder of his life, a $38,541.00 judgment is excessive. Point II is ruled against appellant.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: EAGER, Presiding Judge.

license: Public Domain

text:
    Henry STELLER and Lena Steller, Respondents, v. John R. STELLER and Elizabeth Steller, Appellants.
    No. 51290.
    Supreme Court of Missouri, Division No. 2.
    April 11, 1966.

      Bild & Cooper, Frank Bild, St. Louis, for plaintiffs-respondents.
    Goldenhersh, Gallagher, Fredericks & Newman and Leo M. Newman, St. Louis, for defendants-appellants.
   EAGER, Presiding Judge.

This is a suit to set aside a warranty deed alleged to have been executed by reason of coercion and undue influence exercised by the appellants. We shall refer to the parties as they appeared below. Henry Steller, one of the plaintiffs, is a brother of John Steller, one of the defendants. Both were “distant” cousins of the grantor Eva Wlcek. The real estate involved was a comparatively small residence in St. Louis County; the deed was dated May 15, 1958, and it was recorded on February 28, 1961, after the grantor’s death. By answer, the defendants denied all substantive allegations, and alleged that the deed was executed in consideration of love and affection and nursing care. Eva’s executor was originally a party plaintiff, but he voluntarily dismissed his claim prior to trial. The trial court made detailed findings of fact in favor of plaintiffs; most of those matters will be covered in our recital of the evidence. The court also concluded that the deed was executed as a result of defendants’ undue influence, and that the evidence was “clear, cogent and convincing”; the deed was adjudged to be void and title was vested one-half in plaintiffs and one-half in defendants, as provided in Eva’s will. After-trial motions were overruled by the lapse of time, and this appeal was duly taken.

On this appeal defendants assert: that no confidential relationship was proven, that no presumption of undue influence arose, and that plaintiffs failed to prove, to the degree required, that the will and free agency of the grantor was destroyed and replaced by the will of the defendants at the time of the execution of the deed. All the evidence was produced by the plaintiffs, and defendants stood upon their motion to dismiss.

At the time of Eva’s death in February 1961, she was seventy-nine years old. She and her husband, Mihal (Mike) Wlcek, had lived for some years at 5351 Lode Avenue in St. Louis County, that being the property now in controversy. It seems that they had one child, who had died many years ago. In the fall of 1957 Eva had deteriorated until she was markedly senile; physically, she had a number of “small strokes,” a severe heart condition and arteriosclerosis; mentally she had “slowed down,” had memory lapses, and was lucid at times but confused at others. In September 1957, she became a patient in Miller’s Nursing Home. Her husband died in October while she was there. She was taken to the funeral home, but was unable to attend his funeral. Dr. Wilucki, who had been her physician for about five years, attended her several times (four to six) in the nursing home. He testified: that she could answer simple questions but could not carry on any substantial conversations, was never “real clear,” was depressed, and was kept on tranquilizers; she sometimes recognized people, and at other times she did not. He last saw her shortly before Christmas, and was never called to see her later at defendants’ home. It was his opinion that her senility would continue to go “downhill,” with periods of increasing and slowing down, but that “as a general rule” her condition would have been worse in May 1958 (five months later) than when he last saw her. Just before Christmas, 1957, the doctor, on request from the hospital, released Eva to go home for the holidays. The defendants took her to their apartment, as we shall note later.

While Eva was in the nursing home, and on October 18, 1957, she executed a power of attorney to Lena, authorizing her to handle Eva’s affairs. These were not complicated, and Lena continued to attend to these matters until Eva’s death, and apparently without complaint from anyone. The power of attorney was apparently suggested by officials of the nursing home, and not by Lena; she testified that she talked to a lawyer about the matter and later received the executed power by mail. Eva had previously said that she “should take care of her business,” — everything. Henry and John, through their mother, were Eva’s cousins. Lena had known Eva for about 38 years; she had visited Eva occasionally in her home, and later saw her approximately two or three times a week in the nursing home. During October 1957, Eva discussed with Lena the making of a will on two different occasions, telling her what she wanted in the will, namely, a bequest of $200 to the Salem Lutheran Church and the residue to be divided equally between John and Henry, with Henry and Lena to “take care of everything.” Lena spoke to the officials of the home, and they advised her to go ahead with that request. Lena testified that at the time of the discussion concerning the power of attorney Eva knew what she was doing, and at the time of the discussions of her will she knew her relatives and knew of her ownership of a home. Lena procured the services of an attorney and a will was drawn and executed in accordance with Eva’s expressed desires. Lena was not present at its execution. She told John and Betty of the power of attorney and of the execution of the will. There were times when Lena could not understand Eva in the nursing home, because her words were “not plain,” but she did not “ramble.” Lena was a receptionist for Dr. Wilucki, who was a witness.

As indicated, the defendants took Eva to their three-room upstairs apartment for Christmas of 1957. They continued to keep her and, early in January 1958, the plaintiffs and defendants met in that apartment to arrange for Eva’s future care. The defendants suggested moving with Eva into her own home on Lode Avenue; it was agreed that defendants would continue to care for her but would move with her to that home (the property in controversy here), would receive her social security check of about $69.80 and $100 a month from Eva’s funds, but would pay a monthly rent of $25. These arrangements were entirely satisfactory to John and Betty, but no one told Eva of them. She was moved by ambulance to her home in February 1958, and, with the exception of about two weeks in a hospital near the end of her life, lived there with John and Betty until her death in February 1961. Under the arrangement as made, defendants were to pay all household expenses and all cost of Eva’s care, including medicine and doctors’ bills, but excluding hospital costs. Soon after this arrangement was made, Lena and John opened Eva’s safe deposit box and found a certificate of deposit for an amount slightly more than $2,500; John took this, and he later said that he had placed $1,000 in his bank to cover Eva’s funeral expenses, but he obviously kept the remainder; at the time he said, “Aunt Eva is with us, we may as well take it home.” Apparently John and his wife gave Eva credits of $100 per month until the $1,500 was exhausted; after that Lena paid them monthly out of Eva’s funds; she also received the rent payments. John presented to Lena the real estate tax statements for 1958, 1959, and 1960, and she paid them from Eva’s funds. She also paid a bill for plumbing repairs, submitted to her by John, the work being done by John’s son-in-law.

On one occasion when Lena saw Eva in early January 1958, at defendants’ apartment, Eva had been crying and was crying ; when Lena asked her what was wrong, she said that John “wanted her to change her will.” Lena said that she would talk to John but Eva protested; nevertheless, Eva called John into the bedroom, asked him if that was true, and the only reply she got was “well.” Lena then suggested to Eva that she leave things even between John and Henry, “as is.”

Lena frequently visited Eva; she was generally in bed, but during the spring she was sometimes sitting up; in fact, she apparently improved physically, but not mentally. She sometimes sat in a wheelchair, and occasionally walked a little with assistance. She knew Lena and became upset when Lena did not visit her frequently. Both John and Henry were retired, and Lena was the only one of the four who was holding a job. Henry seldom visited Eva, as he was afflicted with rather serious arthritis during much of this time. When Eva complained that she signed her social security checks but got no proceeds, Lena explained that the money went to Betty for taking care of her. On one occasion in late 1958 or early 1959 Betty told Lena that every time she came to see Eva the latter seemed more “upset afterwards,” and that maybe it would be better if she did not come every week. Thereafter, Lena skipped a week, but when she came back Eva complained bitterly, so she resumed her regular visits. From late 1958 Eva continually asked Lena whether she should sell her house and go back into a nursing home; she had never said anything to Lena about having deeded her property away. At one time Lena suggested to Betty that they should tell Eva what she was paying for their care, because Eva seemed to feel that she “was in the way,” but Betty said “no.” In late 1959 or early 1960 Eva was frequently crying and dissatisfied and talked about going back into a home; Lena told Betty and John of this, and John immediately went in and said to Eva in German: “What’s the matter ? Don’t you like it here; aren’t we good to you.” Eva replied “all right, all right.”

Eva owned a 1951 Mercury car which was kept at the home. In the spring of 1958 one Tony Golaszewski called on her, wanted to buy the car and offered her $400; John took the man out to inspect it. John said that he was going to buy it, and Eva told the man to come back the next day; he did so, but was told by Betty that the car had been sold and, on inquiring of Eva, she confirmed it. It developed that the title was transferred to John and Betty for $200, for which amount John delivered a check to Lena. A reproduction of the application for the change of title was produced and identified; Lena testified that the signature on the application was not Eva’s.

An old friend of Eva’s, Carrie Steck, visited her both in the nursing home and at the Lode Avenue address, more frequently at the latter place. They talked in German. About May 1958, she told Mrs. Steck that she was not happy there and asked if she should go back to the nursing home. Mrs. Steck told Betty of this, and Betty said that if she “didn’t like it John would put her in her place.” Eva often cried; she didn’t like the meals and did not like the late hours of arising and having her breakfast. Mrs. Steck thought that Eva’s speech had improved somewhat. John was always at home and could hear everything that was said; Eva said, on one occasion, “Nix so loud if they would hear me they would scold.” About May or June 1958, Mrs. Steck felt that she was no longer being welcomed by Betty and John and she quit going to visit.

The insurance on the house was carried in a three-year policy expiring in September 1960; after Mihal’s death the policy was endorsed to Eva only. That ownership was never changed by endorsement thereafter, and the policy expired at its termination date; the agent was not notified of any change of ownership. The deed in question here was a general warranty deed dated May 15, 1958; it was not recorded until February 28, 1961, about two weeks after Eva’s death. Neither John nor Betty had ever mentioned the deed to either of the plaintiffs prior to Eva’s death. On February 28, 1961, John, after consulting an attorney, procured an order from the Probate Court refusing letters of administration, upon the filing of an affidavit; in that proceeding John claimed to be entitled to reimbursement for the funeral bill of $1,152.98, and the order listed as assets a checking account of $605.15. After a controversy had arisen, Henry, as executor, filed and probated the will and he also instituted proceedings against these defendants for the discovery of assets. In answer to those interrogatories, John and Betty stated that they had in their possession the various personal property, including appliances, furniture, clothing, etc., but that in February 1958, Eva had given it all to them in consideration of her care and maintenance. The court ordered the property turned over to the executor; it was later sold for a more or less nominal sum. John was allowed $133 for his payment on the funeral expenses, and certain other reimbursements.

In early March 1961, the plaintiffs and defendants had met to discuss the payment of the expenses of Eva. John had called and said that he had seen a lawyer and that he could get the money out of the bank. When they met, John said to Lena: “I think you are going to be in for a shock * * * we bought the place for a dollar.” This was the first inkling on the part of Lena and Henry that the property had been transferred. Lena replied: “John, you couldn’t.” He said, “I did,” and that there was nothing that could be done about it. After that, no agreement was reached on anything and this suit was instituted a little later.

The equitable principles governing cases of this sort have been declared many times. The difficulty lies in fitting each case, with its own individual facts, into those principles. Since cancellation is an extraordinary function of equity, it is said that the evidence to justify it must be clear, cogent and convincing. Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59; McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46. Undue influence, such as invalidates a deed, must consist of over-persuasion or coercion which substitutes the will of one person for the free will of the other. Horn v. Owens, Mo., 171 S.W.2d 585; Sebree v. Rosen, Mo., 349 S.W.2d 865; Houghton v. West, Mo., 305 S.W.2d 407; Peine v. Sater, Mo., 289 S.W.2d 101. A mere suspicion of undue influence or the opportunity of a defendant to have exerted such influence, is not sufficient. Lastofka v. Lastofka, supra; Hamilton v. Steininger, supra; Flynn v. Union National Bank of Springfield, Mo.App., 378 S.W.2d 1. But, on the other hand, proof of undue influence does not require direct and positive evidence of the words or acts which constitute it, but it may he inferred from all the facts and circumstances. Loehr v. Starke, Banc, 332 Mo. 131, 56 S.W.2d 772; Sebree v. Rosen, Mo., 349 S.W.2d 865; Mowry v. Norman, 204 Mo. 173, 103 S.W. 15; Peine v. Sater, Mo., 289 S.W.2d 101; Coldwell v. Coldwell, Mo., 228 S.W. 95; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46; and, it is not necessary that there should be specific evidence that the defendant’s influence was being exerted at the precise time of the execution of the deed or will, — or, in other words, evidence of an overt act at that time. Houghton v. West, Mo., 305 S.W.2d 407; Mowry v. Norman, 204 Mo. 173, 103 S.W. 15; Phelan v. Gockel, Mo., 278 S.W.2d 758; Cook v. Higgins, 290 Mo. 402, 235 S.W. 807; Dimity v. Dimity, Mo., 62 S.W.2d 859.

We are urged by plaintiffs to hold that a confidential relationship existed between Eva and her cousins John and Betty. That is said to be a relationship of special trust and reliance, which also involves some fiduciary obligation. Walton v. Van Camp, Mo., 283 S.W.2d 493; and see the discussion and cases cited in Flynn v. Union National Bank of Springfield, Mo. App., 378 S.W.2d 1. Plaintiffs say that such a relationship was created when Eva’s bodily custody was turned over to defendants. We do not so hold, but it is obvious that this fact is one highly material to our consideration of undue influence, generally. Dimity v. Dimity, Mo., 62 S. W.2d 859; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706. Even where the existence of a confidential relationship is found, all the recent cases hold that there must also be evidence of facts and circumstances tending to show undue influence before a presumption of undue influence arises. McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698; Flynn v. Union National Bank of Springfield, supra; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46; Loehr v. Starke, Banc, 332 Mo. 131, 56 S.W.2d 772; Walton v. Van Camp, Mo., 283 S.W.2d 493.

The plaintiffs did not allege mental incapacity, as such, as a ground for the cancellation and, of course, the trial court found none. We do not find that the evidence here would have been sufficient for a cancellation upon that ground, but Eva’s rather marked mental weakness (as well as her physical condition) was certainly a matter for consideration upon the claim of undue influence, for such a person is naturally more susceptible to influence, good or bad. In fact, it has been said that mental weakness and undue influence are “somewhat intertwined.” Flynn v. Union National Bank of Springfield, supra. See also Wilhoit v. Fite, Mo., 341 S.W.2d 806; Houghton v. West, Mo., 305 S.W.2d 407; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706; Colquitt v. Lowe, Mo., 184 S.W.2d 420. From the evidence it clearly appears that Eva was markedly senile, that at times her conversation was clear, at times it was not, that at times she was confused, and that the doctor thought she never was “real clear” at any time. She did know who her relatives were and recognized them. Added to all this was her extreme physical weakness and deterioration, —the combined result of strokes, her “severe” heart condition, and the usual deteriorating effects of arteriosclerosis. She was in bed most of the time and apparently got up only with assistance. She was thus wholly dependent physically upon those who were taking care of her, and certainly was more inclined to be subservient to them mentally.

We conclude that there is “clear, cogent, and convincing” evidence here from which we may and do reasonably infer that the deed was procured by and through the undue and coercive influence of the defendants. In this we are particularly moved by the following facts: that defendants originally suggested taking Eva from the nursing home and they volunteered to keep her, after first asking permission to take her for the “holidays”; that soon after thus taking her to their home, John wanted her to change her will, and made no denial when confronted with that fact; that defendants also suggested (which may have been entirely proper) moving into Eva’s house on Lode Avenue; that her original physician was never called back, he being the employer of Lena; that the relationship was such that Eva was afraid of beir.g overheard and scolded by defendants; that John did scold her about her complaints, and that Betty told Mrs. Steck that “if she [Eva] didn’t like it John would put her in her place”; that Betty made this old friend Mrs. Steck so uncomfortable about visiting Eva that she quit coming, and that she suggested to Lena that she should not come every week; that Eva was paying from her own funds the full amount suggested by Betty for her care and maintenance; that after going to live with John and Betty she saw practically no one else but Lena, Mrs. Steck and very occasionally Henry, and she was thus constantly in the presence and company of both Betty and John; that something caused her to decline a sale of her car for $400 and to sell it to John for $200, although we regard this as not too strong a circumstance; that the deed recited one dollar as its sole consideration, although John claimed to have purchased the property; that the circumstances of the execution of the deed are wholly unknown; that for a period of almost three years from the date of the deed to Eva’s death, neither John nor Betty made any mention whatever of it, but continued for all purposes to act on the theory that the property belonged to Eva, and caused her to pay the taxes and pay for repairs; that after Eva’s death John and Betty claimed to own all her tangible personal property but were required by the Probate Court to turn it over to the executor; that John procured a refusal of letters, apparently upon a claim that he had paid all the funeral expenses, whereas all but a minor part had been paid with Eva’s own money; that after the death John brazenly told Lena that she was going to be “in for a shock” and disclosed his supposed purchase, telling her further that he “bought the place” because Eva always said she wanted to “sell” it; that Eva obviously did not realize that she had conveyed the property, because during most of the remainder of her life she continued to ask whether she should sell her house and go back into a nursing home.

While it is relatively unimportant here, the recital of a sole consideration of one dollar in a deed purporting to represent a purchase, is a factor “to be considered in connection with the presence of other inequitable incidents.” Meyer v. Schaub, 364 Mo. 711, 266 S.W.2d 620; Frey v. Onstott, 357 Mo. 721, 210 S.W.2d 87. The essential fact in this connection is that defendants did not buy the property, and that Eva was paying to the defendants what they themselves had fixed as a fair price for her care. This lack of consideration is a material factor.

In Houghton v. West, Mo., 305 S.W.2d 407, Coldwell v. Coldwell, Mo., 228 S.W. 95, and Wilhoit v. Fite, Mo., 341 S.W.2d 806, concealment is considered as one of the usual elements of undue influence. The execution of this deed was most assiduously and effectively concealed, even by implied misrepresentations concerning Eva’s liability for taxes and repairs. We have considered certain evidence of facts occurring after the execution of the deed; appellants insist that we may not do so. It is clear that evidence of such facts and circumstances is admissible and may be considered when it is relevant as tending to show the existence of a plan to obtain title to decedent’s property and assets. Wilhoit v. Fite, Mo., 341 S.W.2d 806.

The trial court heard the witnesses; it obviously believed them. Its view of the evidence is entitled to deference.' However, we independently find and conclude that the execution of the deed in question was procured through and by undue influence exerted and practiced upon the grantor by these defendants, and that it should be set aside and cancelled. The judgment of the trial court is affirmed.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    UNION ELECTRIC COMPANY, a corporation, Respondent, v. G. W. STURMFELS and Vera Sturmfels, Appellants.
    No. 51113.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Rehearing Denied April 11, 1966.
    C. Kenneth Thies, Kerth, Thies & Schreiber, Clayton, for respondent.

      James J. Sauter, Charles M. Deeba, Dee-ba, DeStefano, Sauter & Herd, St. Louis, for appellants.
   STOCKARD, Commissioner.

Defendants have appealed from the judgment entered pursuant to unanimous jury-verdict wherein they were awarded $42,500 as compensation for the appropriation by plaintiff of an easement across their land for the construction and operation of an electric transmission line. The difference between the amount of the award and the amount to which defendants claim they are entitled exceeds $15,000.

Defendants first contend that the trial court erred in giving Instruction 3 which was given by the trial court on its own volition over the objection of both parties. At the time of trial the committee appointed by this court to consider simplifying instructions in civil cases had made its preliminary report containing forms for certain instructions. That report and the “principles recommended therein for instructions to juries” had been approved by this court subject to revision prior to the effective date on January 1, 1965, of Civil Rule 70.01, V.A.M.R. Instruction 3 was identical to recommended Instruction 9.02 in the preliminary report of the committee, and was as follows:

“You must award defendants such sum as you believe was the difference between the fair market value of defendants’ whole property immediately before the taking on June 29, 1962, and the fair market value of defendants’ remaining property immediately after such taking.”

Subsequent to the trial and prior to the effective date of Civil Rule 70.01 recommended Instruction 9.02 was amended by the addition of a clause as follows: “which difference in value is the direct result of the taking and of the uses which plaintiff has the right to make of the property taken.” See MAI No. 9.02. We are not concerned on this appeal with this amendment. This case was tried before the effective date of Civil Rule 70.01, and the use of the approved jury instructions was not mandatory. The issue before us is whether, under the applicable rules at the time of trial, it was prejudicial error to give Instruction 3 as worded.

Defendants assert prejudicial error resulted because Instruction 3 “omitted to instruct the jury to take into consideration in their deliberation on damages an essential factor, namely, the uses which the plaintiff has the right to make of the property taken.” They rely on KAMO Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W.2d 858, and State ex rel. State Highway Commission v. Ellis, Mo.App., 382 S.W.2d 225. In the KAMO case it was stated that when “a part of a tract of land is taken by condemnation, the just compensation to which the owner is entitled, referred to as damages, is the difference, if any, between the fair and reasonable market value of the entire tract of land before and after the appropriation of said part.” Subsequently in that opinion it was further stated that when a part of a tract is taken “ ‘the damages are not limited to such as result from the mere severance of title caused by the taking, but include damages caused by the use of the property for the purpose for which the condemnation is made.’ ” The first statement correctly sets forth abstractly the method of determining just compensation in a partial taking condemnation case. The second statement is an explanation of certain matters authorized to be considered by the jury in determining just compensation in such a case, and which, because of the issues in the KAMO case, were necessarily commented on in the opinion. The Ellis case restates the principles set forth in the KAMO case.

We agree that in this case in its determination of the compensation to which defendants were entitled by reason of the appropriation, the jury could properly consider those uses which plaintiff could make of the land over which the easement extended. Notwithstanding defendants’ contention to the contrary, we conclude that the jury was so instructed. In Instruction 3 the jury was told that it was to determine “the difference between the fair market value of defendants’ whole property immediately before * * * and * * * immediately after such taking.” By Instruction 4 the jury was told that the “term ‘fair market value’ means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so. In determining ‘fair market value’ you should take into consideration all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the immediate future.” (Except as to the next to the last word Instruction 4 was identical with the present provisions of MAI No. 15.01). When the jury determined the “fair market value of defendants’ remaining property immediately after such taking” (to ascertain the difference between that and the' “fair market value of defendants’ whole property immediately before the taking”), it was instructed to take into consideration the uses to which the property could be applied under existing conditions, that is, after the taking, and that necessarily was subject to the uses for which plaintiff had acquired the easement.

Defendants place considerable reliance on the fact that subsequent to the trial, recommended Instruction 9.02 was amended as previously set out. In view of the language of MAI No. 15.01, the amendment incorporated into MAI No. 9.02 actually was a restricting provision which limited the difference in market value before and after the taking to that difference which is the direct result of the taking and the uses which the condemnor has the right to make of the property taken, as distinguished from a difference that might be speculative.

Defendants requested, but the trial court refused, two instructions which they assert on this appeal “covered this essential factor” of consideration being given by the jury to the uses to be made of the property appropriated. However, as above noted the instructions given adequately covered this matter, and the refusal to give a requested instruction is not error where the substance of it is adequately presented in other instructions. Taylor v. Riddle, Mo., 384 S.W.2d 569. From an examination of the two refused instructions we cannot agree that they properly “covered this essential factor,” as defendants contend, but even if they did, under the circumstances prejudicial error would not have occurred.

Instruction 3 was not a misdirection, and when read with Instruction 4 it is not subject to the criticism made of it by defendants. It is true that it is short, but it is concise and readily understandable, and it leaves to oral argument those argumentative matters which too often in the past have been placed in an instruction for purposes of strategy. In State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654, 660, we commented that this court has in the past been reluctant to reverse a case because of the inclusion of argumentative matters in a damage instruction in a condemnation case even though it has been critical of the practice, but that this does not mean that a trial judge who departs from the criticized practice has committed prejudicial error. We regard that comment applicable here.

The second and remaining point of defendants is that Instruction 4 (the applicable part of which we have previously set out) is erroneous because “it restricted and limited the jury’s consideration of uses to which the property may be best applied or best adapted to the immediate future.” (Italics added). They rely on the fact that although Instruction 15.01 in the preliminary report of the committee to simplify civil instructions contained the phrase “immediate future,” subsequent to this trial the instruction was amended so as to substitute the word “near” for the word “immediate.” See MAI No. 15.01.

We consider this contention to be without merit for two reasons: First. No jury would be misled, and when the meaning of the two words is considered in relation to time, they have substantially the same meaning. For example, the meaning of the word “near” is stated to be “not far distant in time.” The meaning of the word “immediate” is stated to be “near to or related to the present.” Webster’s Third New International Dictionary, Unabridged. As evidence of the fact that defendants did not consider the use of the phrase “immediate future” to be improper in Instruction 4, in their requested but refused Instruction C in which “fair market value” was defined, they requested that the jury be instructed that it should consider “such uses as may be reasonably expected in the immediate future.” Second. Defendants’ evidence was that their property would mature to its highest and best use in “five or ten years.” No evidence of use of the property was excluded on the ground that the use was one that would be in the “near” but not in the “immediate” future, and no reasonable jury could have been caused to exclude from its consideration any of the evidence of uses of the property on the ground that the evidence referred to “near” uses but not “immediate” uses.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: HYDE, Judge.

text:
    Eugene ACKMANN and Melba L. Ackmann, Plaintiffs-Respondents, v. KEENEY-TOELLE REAL ESTATE COMPANY, Twillman Construction Company and Wilbert W. Twillman, Defendants-Appellants.
    Nos. 51764, 51772.
    Supreme Court of Missouri, En Banc.
    April 11, 1966.

      Edward F. Downey, John J. Delabar, Jack V. Hoskins, St. Louis, for respondents.
    R. K. Schurr, Schurr & Inman, Clayton, for appellant Keeney-Toelle Real Estate Co.
    Andrew H. McColloch, Wentker & Mc-Colloch, Robert V. Niedner and Niedner, Niedner & Moerschel, St. Charles, for appellants Twillman Const. Co. and Wilbert W. Twillman.
   HYDE, Judge.

Action for damages for fraudulent misrepresentations in the sale of a home to plaintiffs, who had verdict for $3,000.00 actual damages and $10,500.00 punitive damages. After remittitur ordered was made, judgment was entered for plaintiffs for $1,500.00 actual damages and $3,500.00 punitive damages. Defendants appealed and contend the court erred in overruling their motions for directed verdicts at the close of all the evidence. The St. Louis Court of Appeals held the trial court correctly overruled these motions but reversed and remanded (because of error in giving Instruction No. 3) for' a new trial on the issue of damages only. On application of defendants, we ordered the case transferred; and it is to be determined here “the same as on original appeal.” Sec. 10, Art. V, Const., V.A.M.S.

Because of defendants’ claim of error in overruling their motions for directed verdicts, it is necessary to make a full statement of facts and we adopt the following statement from the opinion of the Court of Appeals, without quotation marks, and with some additions. The construction company began work on “Harvest Acres” subdivision early in 1959. Keeney-Toelle was the sales agent. This subdivision was located in an unincorporated area in St. Charles County and water for it was to be supplied by the developer. Sec. 192.200, RSMo V.A.M.S., requires water suppliers to file plans “with a description of the methods of purification and of the source from which the supply of water is derived” and provides “no source of supply shall be used without a written permit of approval from the division of health.” Section 3 and Section 5 of the regulations of the State Division of Health governing the installation and operation of public water supplies provide: “Sec. 3. SUBMISSION OF PLANS FOR NEW WATERWORKS— Every owner or his authorized agent, before installing or entering into a contract for installing a water supply or water purification plant, shall submit in duplicate to and receive the written approval of the Division of Health of complete plans and specifications fully describing such water supply or water purification plant, and thereafter such plans and specifications shall be substantially adhered to unless deviations are submitted to and receive the written approval of the Division of Health. * * * Sec. 5. FINAL APPROVAL— Every owner, before accepting or placing in operation a new water supply or water purification plant, or additions to, or changes or alterations in, any existing water supply or water purification plant, shall receive written final approval of the Division of Health stating that the completed work substantially adheres to the approved plans and specifications.”

In July of 1959 Twillman furnished sales information to Keeney-Toelle. This information contained the words “water State approved.” The advertisements placed by Keeney-Toelle by Twillman and by the construction company for the sale of houses in the subdivision contained that statement. In August, a month after advertisements containing this statement began to appear on billboards and in the newspapers, Twillman first submitted to the Division of Health plans for a well to supply Harvest Acres. Twillman admitted that he did not have state approval of his water when he started placing the advertisements and when he gave information for the advertisements and that, at that date, he hadn’t even begun the well. The Keeney-Toelle sales manager testified that the purpose of placing the ads was to get people to read them and rely upon them and that in fact people did rely on those advertisements and contact his salemen and buy houses. Later there were signs saying “gas, water, sewers, wide streets.” In December of 1959 the plaintiffs became interested in a home in this subdivision. In looking for homes they had read the advertisements that the water was state approved. While they were considering buying a home in the subdivision, they looked at a display house used by Keeney-Toelle and while doing so, Twillman gave them a glass of drinking water. After drinking it in the presence of Twillman and a Keeney-Toelle salesman, the plaintiff said, “That’s one thing we don’t have to worry about. We have got good drinking water here.” Twillman and the salesman made no comment although they knew the water that the plaintiff drank was hauled in from the City of St. Charles. The plaintiffs testified that they relied upon the statement in the advertisements that the water was state approved and would not have purchased a home otherwise. Plaintiffs were the fourth family to move into this subdivision.

Plaintiffs and their neighbors in the subdivision were experiencing the same hardships with the water, and their testimony was that the water was extremely salty, unfit for drinking, and with a smell like a bad egg. Some of the children in the neighborhood got diarrhea from the water. In the summer of 1960 following the plaintiffs’ purchase of a home in this subdivision, the residents complained to the defendants concerning the quality and quantity of water. On July 20 of that year some water from well No. 1 was submitted to the state for analysis. The testimony was that all of the chemical components were “ * * * within the acceptability of the United States Public Health Service standards” followed by the State Department of Health. However, its chloride content was high and accounted for its salty taste.

A sanitary engineer with the Missouri Division of Health, Robert S. Miller, testified by deposition that he was the assistant chief of water supply and that Twillman’s plans and specifications for well No. 1 were approved on August 12, 1959 although no one wrote a formal approval. Formal written approval is required by the regulations, and he doesn’t know why it was not done except that the Department was then experiencing a change of personnel. The requirements for submission and approval of plans for a well mainly are to require construction that will prevent surface contamination. The construction company drilled a second well in 1960 and chemical analysis on the water in this well showed that its mineral content was similar to well No. 1. By letter of February 7, 1961, Twillman was informed that his water system could not be approved due to the fact that no plans and specifications were submitted for well No. 2 or for the reservoir and also due to the fact that his chlorination system was. defective. In March of 1961 Twillman was informed by the State Department of Health that well No. 1 was acceptable for serving approximately twenty homes and stated that “ * * because of the low yield of wells in this area and mineralization of the water, long range plans should be completed for a source of water supply of adequate quantity and quality.” There were then forty-three finished houses in the subdivision of which thirty were occupied. As to well No. 2 Twillman was informed: “(2) Well No. 2 may be utilized as an emergency standby source of supply, providing chlorination and a two-hour detention time are provided. When not in service, the piping must be completely disconnected from the water distribution system serving the subdivision. Approval for usage of this well as an emergency source of supply is given with the understanding that an additional prop* erly constructed well is to be provided at an early date and this well will be abandoned when the new supply is available.” The plans for the third well were approved in 1962 and the well was placed in service sometime prior to March of 1963. It produced a satisfactory water supply. Miller was asked if the water from these first wells was fit for human consumption. His answer was that the water “ * * * wasn’t a health hazard to the people consuming * * * ” it. He further testified that “ * * * 1 don’t know what State approved water is” and that he could only judge water on the basis of whether it constituted a health hazard and that this was the extent of the function of his department of the Division of Health with regard to the approval of water. Miller’s testimony also was that Dr. Hardwicke, head of the Department of Health of the State of Missouri, at a meeting with the people living in the subdivision, expressed the opinion the water would cause diarrhea but also “ * * * expressed the opinion to these people it wasn’t a health hazard. ⅜ * *« Defendants made an offer of proof that if permitted, Miller would testify that the United States Department of Health drinking water standards had two basic criteria; that the first of these concern chemical constituents which shall not be in the water. These are constituents which affect the health of people. The second of these are constituents which should not occur in the water. These do not affect the health of people but result in staining fixtures and other similar results.

With respect to the issue of damages, the transcript shows the plaintiffs pleaded that they “ * * * have been induced to make promissory note whereby they have become indebted * * *” in the amount of .$30,000.00 (for principal and interest on a 30-year loan); that the “ * * * bathroom, kitchen and utility appliances, fixtures and tile have been damaged and caused to depreciate in the approximate amount of $2,500.00” due to contact with the dangerous and harmful chemicals contained in said water; that from the date of purchase in April the plaintiffs have been required to haul safe and suitable water at an average weekly expense of $5.00; and that they had to purchase an auxiliary gas tank, “the reasonable market value” of which was $280.00. Their prayer was for actual damages in the amount of $15,000.00 and for punitive damages of $30,000.00. On the date the trial court ruled the motion for new trial it permitted plaintiffs to amend their petition by adding the following allegation of damage: “And by reason thereof the aforesaid realty had a value of about $3,000 — less than the value of said realty if it were as represented, having State approved water.”

The plaintiffs moved into their home in the middle of April 1960. They had trouble with the. water in the subdivision until March of 1963 when the third well was put into service. The water supply was inadequate and often nonexistent as they were often out of water for as long as a week at a time. They stored water in a child’s swimming pool and carried it into the house in buckets to use to flush their toilets. The water was dirty looking and turned their laundry brown. They had to replace the kitchen sink “fixtures,” those in the bathroom lavatory, and also the “works inside the flushing tank.” The basement fixtures were corroded at the date of trial but still usable. When they moved in plaintiffs owned an automatic washer with a “granite” tub. Within six months the salt in the water ate through it and dripped down onto the motor. The only testimony as to its value was that it had cost them $299.00. They replaced it with a new washing machine and “before long that went out.” They replaced it with a “manual” washing machine. They also replaced the hot water heater. There was no evidence as to the value of these items.

In a hypothetical question the witness Roach was asked of the reasonable market value of the home on the date of purchase assuming the subdivision “ * * * did not have State approved water and that in fact the water that was supplied there had a high iron content that would rust or give the laundry appearance, that would corrode fixtures and appliances, would cause diarrhea, would not be sufficient in quantity to do the laundry because of a high'chloride content that was difficult if not impossible to get lather out of soap, and based upon the assumption that, for a period of time as long as seven days, there would not be sufficient water for the ordinary domestic uses, such as flushing toilets and washing and bathing * * His answer was, “You are asking for the market value of a piece of property which has no water * * * and as such there would be no value to it. It wouldn’t be marketable at any price.” He 'stated it would have a deficit value. The same witness placed a value of $12,500 to $13,000 on the property when asked to do so assuming it to have “State approved water in sufficient quantity and quality.” Another witness stated that he felt the house plaintiffs purchased was then worth the $12,820.00 paid for it but refused to testify what it would be worth “ * * * without water approved by the State,” stating that “I don’t know what it would be worth.” At the date of trial the price on the sign at the entry to the subdivision was $11,900.00. It had been '$12,640.00 when plaintiffs purchased in 1960. Twill-man agreed that the price on the houses went down and stated that this resulted from the complaints the purchasers made about the water.

We conclude as did the Court of Appeals that plaintiff made a submissible case against all three defendants. We do not agree with defendants’ view that their advertisments about water should be construed as prospective and not representations of existing facts. The cases cited are not in point. Bayer v. American Mutual Casualty Co., Mo.Sup., 359 S.W.2d 748 (where plaintiff did not rely on representation but made his own investigation) and Powers v. Shore, Mo.Sup., 248 S.W.2d 1 (where proof did not show representations false when made). Our view is that the jury could reasonably find from the positive statements on billboard and newspaper advertising that the statements about water were statements of present conditions; and that they meant an adequate supply of usable water.

As to defendants Twillman and Twillman Construction Company, we adopt the following ruling of the Court of Appeals : “Misrepresentations as to the permanency or sufficiency of the water supply available to a piece of real property when made as statements of fact and not as opinions may constitute fraud provided all the elements of fraud are present. 37 C.J.S., Fraud, Sec. 53, c. pp. 314-318. See Drew v. Christopher Construction Co., Ohio [140 Ohio St. 1], 41 N.E.2d 1018; Waters v. Novak, Ohio [94 Ohio App. 347], 115 N.E.2d 420; Rowell v. Jaris, Maine, 93 A.2d 485; Smith v. De Metre, Vt. [119 Vt. 73], 118 A. 2d 346; Clay v. Brand, Ark. [236 Ark. 236], 365 S.W.2d 256, and see the note in 174 A.L.R. 1010, dealing generally with fraudulent representations of vendors regarding the physical condition of real property. See also 37 C.J.S. 310, 316, Fraud, Sec. 53. In determining whether plaintiffs made a sub-missible case the evidence that bears upon the elements of fraud must be viewed in the light most favorable to the plaintiffs giving them the benefit of all reasonable inferences to be drawn therefrom. Wilson v. Murch, Mo.App., 354 S.W.2d 332. The elements of fraud are a representation; its falsity; its materiality; the speaker’s knowledge of the falsity or his ignorance of its truth; the speaker’s intent that his statement should be acted upon by the person and in the manner reasonably contemplated; the bearer’s ignorance of the falsity of the statement; his reliance on its truth; his right to rely thereon; and his consequent and proximately caused injury. Swyden v. James H. Stanton Construction Co., Mo.Sup., 336 S.W.2d 389, l. c. 392, quoting from Powers v. Shore, Mo.Sup., 248 S.W.2d 1. There was evidence from which the jury could have found each of these elements to be present It is uncon-tradicted that the defendants represented this subdivision as having state approved water and that this representation was false at the time it was made and for approximately three years thereafter. The materiality of such a representation was never seriously contested as the necessity for water in sufficient quantity is obvious. Twillman admitted that he knew the statement to be false as he did not have state approval and had not even begun the first well when he furnished that information to Keeney-Toelle. It is not contested that his knowledge would bind the construction company of which he was president and principal shareholder.”

As to defendant Keeney-Toelle, we also find the evidence sufficient. Although the information about water for the subdivision was originally furnished to it by Twillman, its sales manager Allen, a vice president, arranged all the newspaper advertising, starting prior to construction of the houses. There was a display house on the premises which Keeney-Toelle kept open and sales were made there. Plaintiff’s testimony showed that drinking water used at the display house was hauled from St. Charles and that Twillman and the Keeney-Toelle salesman there, when plaintiff was looking at the house, led him to believe it was the water furnished for the subdivision. Our view is that there at least was sufficient circumstantial evidence to support a finding that Keeney-Toelle knew about the water situation. Furthermore, as said in Wilson v. Murch, Mo.App., 354 S. W.2d 332, 338: “To recover for fraudulent representations, it is not necessary that it be shown that defendant had actual knowledge of the falsity of the facts stated by him. It is sufficient that he made the representations with the consciousness that he was without knowledge as to their truth or falsity, when, in fact, they were false.”

As to punitive damages, we find the evidence sufficient to authorize an award. As stated by the Court of Appeals: “In Brown v. Sloan’s Moving & Storage Co., Mo.Sup., 296 S.W.2d 20, 26, it was held that ‘ * * * jn this State, punitive damages may be awarded in a case of fraud and deceit where the representations are characterized by legal malice. In speaking of legal malice our courts have in mind “simply the accepted theory of the intentional doing of a wrongful act without just cause or excuse, and not the necessity for the showing of any spite or ill will, or that this particular act was willfully or wantonly done” (citing cases).’ * * * The evidence the defendants placed these advertisements containing this misrepresentation when no well had even been started and indeed, the defendants’ conduct throughout this affair, amply support the jury’s finding the defendants’ wrongful action, the misrepresentation, was an act without just cause or excuse.” In the Brown case, defendant advertised a fireproof warehouse hut put plaintiff’s goods in another warehouse that was destroyed by fire. We said: “A jury could reasonably infer from defendant’s advertisement and from the evidence that defendant’s Hodiamont Avenue plant was not as stated in the advertisement, that the representations in the advertisement were made intentionally with the wrongful purpose of inducing the public, including plaintiff, to believe all of defendant’s storage facilities were as stated in the advertisement, that is, that they were all fireproof and equipped with sprinkler systems.” Likewise here a jury could reasonably find that from defendants’ advertisements and the evidence that the water situation at the subdivision was not as stated in the advertisements and that the representations were made intentionally for the wrongful purpose of inducing the publie, including plaintiffs, to believe that good and sufficient water was available for residence purposes.

However, defendants say: “The opinion, in ruling that nominal damages will support an award in fraud and deceit, including punitive damages, is also in conflict with and fails to follow the last controlling decision of the Supreme Court in Lammers v. Greulich et al., 262 S.W.2d 861, l. c. 864 (2) (3) (4) wherein this Court distinguished fraud and deceit cases where actual damages must be shown, from those cases where only nominal damages will support an award.” What the Court of Appeals said about nominal damages is not necessary to the decision that the trial court correctly overruled defendants’ motions for directed verdict. We find there was evidence of plaintiffs’ actual damage, although perhaps not as much as the amount allowed in the judgment. The evidence showed a decrease in value of houses in the subdivision, the price of houses having been reduced from $12,640.00 paid by original purchasers to $11,900.00 before the time of the trial. There was also evidence of damage to fixtures and appliances and expenses of hauling water. Our view is that plaintiffs’ evidence is sufficient to show actual damages on retrial.

Nevertheless, we consider retrial of this case should be on all issues and not limited to the amount of damages. One reason for this is that plaintiffs seek punitive damages and the amount of punitive damages depends on consideration of the merits of the case. Moreover, the amount of punitive damages could be different as to each defendant. See State ex rel. Hall v. Cook, Mo.Sup., 400 S.W.2d 39, decided March 14, 1966. We do not see how the jury could properly determine the amount of punitive damages without hearing the evidence on all issues. A further reason for requiring a new trial on all issues is that Instruction No. 2 given at plaintiffs’ request and authorizing a verdict literally seems to require that if the jury found in favor of plaintiffs they must find against all three defendants, although the jury could have found the essential facts were not the same as to each. This instruction also submitted irrelevant facts concerning financing of plaintiffs’ purchase by a defendant dismissed from the case by directed verdict in its favor. On retrial instructions should follow the principles stated in Civil Rule 70.01. See also M.A.I. No. 23.0S.

The judgment is reversed and cause remanded.

All concur.


text:
    Allen L. BUTCHER, Appellant, v. Olon O’CONNOR, Madeline Mary Politte, Now Madeline Mary Ratchford, and Hiram H. Main, Jr., Respondents.
    No. 51412.
    Supreme Court of Missouri, Division No. 2.
    April 11, 1966.

      Sherman Landau, St. Louis, for appellant.
    Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent Olon O’Connor.
    Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons and John G. Doyen, Clayton, for respondent Main.
   STOCKARD, Commissioner.

In this action plaintiff Allen L. Butcher sought damages in the amount of $27,500 for alleged loss of services and consortium of his wife and for medical expenses incurred as the result of injuries sustained in an automobile collision. The trial court directed a verdict at the end of plaintiff’s evidence as to defendants Olon O’Connor and Madeline Mary Ratchford, and there was a unanimous jury verdict in favor of defendant Hiram H. Main, Jr. Plaintiff has appealed from the ensuing judgment.

The collision occurred about 3:30 o’clock on June 18, 1960, on Highway 66 bypass, a north-south highway with four traffic lanes, two for traffic proceeding in each direction. Plaintiff’s wife and the three defendants were each operating northbound automobiles in the lane next to the centerline. Mr. O’Connor was operating the first automobile, second was the automobile of Mrs. Ratchford, the third automobile was operated by plaintiff’s wife, and the fourth automobile was operated by Mr. Main. Mr. O’Connor, called as a witness by plaintiff, testified that he stopped his automobile because two cars ahead of him had stopped, the lead automobile having its directional light on signaling for a left turn. The highway patrolman who investigated the accident testified that Mr. O’Connor told him that he was stopped in the center lane waiting to make a left turn. In either event, while stopped his automobile was struck from the rear by the automobile operated by Mrs. Ratchford. She testified that when she first saw the O’Connor automobile it was stopped or nearly stopped, and that after her automobile struck that of Mr. O’Connor, it was then hit from the rear by the automobile operated by the wife of plaintiff.

Before we set out the testimony of Mrs. Butcher, plaintiff’s wife, we shall set forth some background information. In her previously tried suit for her personal injuries she alleged in her petition that the O’Connor and Ratchford automobiles were stopped ahead of her, and that after her automobile “had been brought to a stop behind the automobile” operated by Mrs. Ratchford, her automobile was struck from .the rear by the automobile operated by Mr. Main. In the previous trial the court directed a verdict for Mr. O’Connor and Mrs. Ratchford after the opening statement by counsel for Mrs. Butcher when he stated that her evidence would show that she “had ample time to apply her brakes and come to a slow gradual stop at a point about five or six feet behind [Mrs. Ratchford’s] automobile, and she remained in the position for a period of about five to ten seconds according to her approximation, and all of a sudden she was struck violently in the rear” by the automobile operated by Mr. Main. See Butcher v. Main, Mo., 371 S.W.2d 203. In a deposition taken before the trial of her suit, Mrs. Butcher testified that the automobile of Mrs. Ratchford was “stopped ahead of me,” that she brought her automobile to a complete stop with “probably five or six feet” separating her automobile and that of Mrs. Ratchford, that she brought her automobile to a gradual, slow stop and did not stop in a hasty or abrupt manner, and that she was stopped “something like” five or ten seconds before her automobile was struck from the rear by the automobile of Mr. Main. At the previous trial of her case she testified that she came to a “gradual” or “normal” stop behind the automobile of Mrs. Ratchford with “about five or six feet” separating the two automobiles, and thereafter the automobile of Mr. Main “hit me” from the rear.

In the petition in this case there is no allegation that Mrs. Butcher brought her automobile to a stop before being struck by the Main automobile. In the trial of this case Mrs. Butcher testified that at the time of the collision she “was slowing down” and the Main automobile “collided with mine, pushing my car forward” into collision with the automobile of Mrs. Ratchford. On cross-examination she stated that when she first saw Mrs. Ratchford’s automobile it was “stopping” and she “must' have been” going very slowly. She further stated that she planned to stop her automobile behind the automobile of Mrs. Ratchford, and that she had enough room to bring her car to a stop short of Mrs. Ratchford’s car, that she had her car under complete control, but the only thing that prevented her from stopping was that she “was hit in the rear by Mr. Main’s car.” Her explanation of the change in her testimony was that “We have found that the other records show that my car was not completely stopped” when she was hit, and that “all of us sort of have afterthoughts of things that come out, and that’s the only way I can explain it.”

Mr. Main, called as a witness by plaintiff, testified first that he did not know whether Mrs. Butcher’s automobile was moving when he struck it. He later said that “it seems it was still moving,” but then subsequently he said that her car was stopped.

Plaintiff asserts that the trial court erred in directing a verdict in favor of Mr. O’Connor and Mrs. Ratchford. As to Mr. O’Connor he asserts that the evidence authorizes a finding that by bringing his automobile to a stop in a moving lane of traffic “just beyond the crest of a hill in the highway” he “negligently created a state of emergency.” As to Mrs. Ratchford he asserts that there was “a submissible issue as to whether she had been following too closely behind the O’Connor automobile than was consistent with the exercise of the highest degree of care.” In his brief he then makes this statement: “If [Mrs. Ratch-ford] had not collided with the O’Connor automobile, Mrs. Butcher would have been able to bring her automobile to a stop.” In support of this statement plaintiff makes a reference to two pages of the transcript. The testimony on the cited pages may be summarized as follows: Mrs. Butcher testified that she was traveling ten or fifteen miles an hour with her automobile under control and with good brakes; that she saw the Ratchford automobile stopped ahead of her and that she intended to stop behind and short of it; and that she had enough room to do so and could have done so safely except for the fact that she was hit from the rear by the Main automobile. We conclude that the above quoted statement in plaintiff’s brief is not supported by the record.

Plaintiff places considerable emphasis on the fact that Mrs. Butcher testified in this case that she had not yet stopped when she was hit by the Main car, and thereby attempts to distinguish the facts of this case from the facts of his wife’s case which resulted in a directed verdict in favor of Mr. O’Connor and Mrs. Ratchford. Whether she was stopped, as she unequivocally testified in the previous trial of her suit, or whether she was still moving according to her changed story in this trial, she has placed the sole responsibility for all the collisions in which she was involved on Mr. Main, and completely exonerated Mr. O’Connor and Mrs. Ratchford. There was no testimony disputing her version of the occurrence. Assuming negligence on the part of Mr. O’Connor and Mrs. Ratchford as asserted by plaintiff, the undisputed evidence offered by plaintiff is that Mrs. Butcher intended to and would have been able to bring her automobile to a gradual and normal stop without colliding with the automobile ahead, and that the proximate cause of her injuries is the fact that defendant Main’s car collided with the rear end of her automobile. Butcher v. Main, Mo., 371 S.W.2d 203, 207; King v. Ellis, Mo., 359 S.W.2d 685. The trial court correctly directed a verdict for Mr. O’Connor and Mrs. Ratchford.

Plaintiff assigns as error several matters, each of which we have examined carefully and found to be totally without merit. However, as to one other matter we find reversible error, and therefore we need not discuss those non-meritorious matters.

Plaintiff asserts that the trial court erred “in approving the jury argument by counsel for defendant Main to the effect that plaintiff * * * was improperly attempting to secure ‘double collection.’ ” He argues that there “was no genuine basis in the pleadings or the evidence for such charge.” As previously noted, the wife’s action for personal injuries had previously been tried, and the pending action was by the husband for medical expenses and loss of services. The difficulty in the trial- of this case demonstrates the soundness of and the need for the amendment to Civil Rule 66.01, V.A.M.R., effective July 1, 1965 (but not applicable to this suit) requiring upon request of a defendant that suits by an injured spouse and by a spouse for loss of consortium or loss of service should be enforced in one action brought by both spouses.

In the argument to the jury by counsel for defendant Main, comment was made that “there is nothing but about sixty dollars damages he [plaintiff] actually suffered * * * » Reference was also made to plaintiff’s contention that he had to stay away from his work, and to the contention of defendant Main that plaintiff’s wife quit work after the accident because plaintiff had an increased income. The following then occurred:

“[By counsel for defendant Main] And I would like to point — direct your attention to another facet — you have heard us talking for three days here that we had another trial out in the County. This is a situation, I think, is a messy situation here. We tried a case of four days. This is the 8th day my client and these other people have been in court over this accident, but the first case was just for the injuries to Mrs. Butcher, and throughout the whole trial they had the same testimony you had. So, they expected by that, when that jury listened to it all to let her then collect — well, if you went to all of these doctors all this time * * * to collect for the doctor bills — and have a double collection. When this is all over, what did they do * * *
“Mr. Landau: Just a moment. If the Court please, I object to that. There is no double collection. The wife cannot recover for own medical expenses.
“The Court: Overruled.
“Mr. Landau: My objection is to the double collection. It assumes that the wife had the right to recover for these elements that are vested in the husband.
“The Court: I overrule the objection. I have given the jury the instructions and * * *
“Mr. Fitzsimmons: (Continuing) You have heard the instructions, but you have had the same testimony out there, whether it’s abstract theory * * * no double collection * * * she got up there and said the same thing October 1962 — he got up there and said the same thing, and while in theory it was just for her injuries, they were trying to collect also, or, at least, give you, the jury, so you would be confused or have sand in your eyes, so they could collect for all the doctor bills and then they start all over here, and this is the action they call loss of consortion [sic] * * * the husband’s loss of the companionship of his wife and his expenses, but what do they do? They go on and read and read and read. * * * ”

The above argument is somewhat disconnected, but it is clear that the message to the jury was that after plaintiff and his wife had collected for the doctor bills in the first suit, they were seeking to collect for them again in the pending suit. This, of course, was not correct. When objection was made and the court had “the last statement” read back to him, and overruled the objection to the reference to double collection, there clearly occurred an expression of approval by the trial court to the message of the argument. This was then followed by a further reference by counsel to a previous collection of the doctor bills and then starting “all over” in the pending suit.

Defendant Main attempts to justify the above argument by extracting two isolated statements in which counsel said that “this is the action they call loss of consortion [sic] * * * the husband’s loss of the companionship of his wife and his expenses * * * and so you won’t forget — don’t forget, all you are talking about is the husband’s expenses. What expenses did he go to as far as what the husband’s loss is * * *_» Defendant Main also urges that the trial judge has a wide discretion in ruling on both the impropriety and prejudicial effect of argument of counsel, citing Butcher v. Main, supra, and Bertram v. Wunning, Mo.App., 385 S.W.2d 803, 808, and that the deference generally paid to its rulings by appellate courts should result in our declaring the argument not to be prejudicially erroneous.

In determining the prejudicial effect of argument, it should be read in its entirety, and not just two isolated statements. It is true that trial courts do and should have a broad discretion in ruling on objections to oral argument, but that cannot be used to justify an argument to the effect that by the pending suit a “double collection” is being attempted when that is not a fact. While it is true that in one of the isolated statements relied on by defendant Main it was said that the jury was concerned only with the “husband’s expenses,” it was also argued to the jury, in effect, that there had previously been a collection of that part of the husband’s expenses consisting of the doctor bills, and that in this suit an attempt was being made to collect for them a second time. “The field of argument to the jury is a broad one, but the law does not contemplate that counsel in argument may go beyond the issues and urge prejudicial matters, or urge a theory of claim or defense which the evidence does not justify or which conflicts with the trial court’s instructions submitting the issues of a case.” Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643, 648; Moss v. Mindlin’s Incorporated, Mo., 301 S.W.2d 761, 766; McCandless v. Manzella, Mo., 369 S.W.2d 188, 191. In these circumstances we necessarily conclude that plaintiff did not have that fair, impartial, and dispassionate consideration by the jury uninfluenced by improper argument to which he was entitled. See Dunn v. Terminal Railroad Association of St. Louis, Mo., 285 S.W.2d 701 at p.‘ 709. The argument pertaining to double collection was improperly made and improperly approved by the trial court. We consider that it constituted error prejudicial to plaintiff.

The judgment is affirmed as to defendants O’Connor and Ratchford. As to defendant Main it is reversed and as to him only the cause is remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.