text:
    Charles F. HOMEYER, Appellant, v. WYANDOTTE CHEMICAL CORPORATION, a Corporation, and Delbert Orcutt, Respondents.
    No. 52366.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.

      Edward O. Hancock, and Robert C. Brinkman, St. Louis, for appellant.
    Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondents.
   STORCKMAN, Judge.

This is an action for damages for personal injuries arising out of a collision of two automobiles. The plaintiff joined Delbert E. Orcutt and his employer Wyandotte Chemical Corporation as defendants in his suit for $65,000. At the close of plaintiff’s case, the court directed a verdict for the defendant corporation and the jury returned a verdict against the defendant Orcutt for $350. The plaintiff filed a motion for a new trial on the single ground that the verdict was inadequate. The motion was overruled and plaintiff appealed. The defendant Orcutt is the only respondent on this appeal.

Since plaintiff’s sole contention on appeal is that “under the law and evidence the verdict is inadequate”, the facts relating to the collision will be stated only so far as they have a bearing on the plaintiff’s injuries. The collision occurred about 4:45 p. m. on September 30, 1963, on U. S. Highway 70 in St. Louis County near the Cool Valley overpass. The plaintiff was driving his automobile west on Highway 70 at a speed of approximately 50 miles per hour. The day was sunny and the concrete pavement was dry. At the place in question, the highway decreased from three westbound lanes to two. As plaintiff approached the Cool Valley overpass, the traffic was light; he could see “it started to stop” and “getting ready to jam up”. He applied his brakes and brought his car to a stop without hitting the car in front of him, but his car was struck from the rear by the automobile driven by the defendant whose car in turn was hit from the rear by another automobile. The defendant testified he was following the plaintiff at about 50 miles per hour, that plaintiff stopped suddenly and that he was unable to brake his car to a stop before colliding with the rear end of plaintiff’s automobile. Plaintiff testified his car was knocked forward about six feet, that he was not knocked unconscious, he was not thrown out of his seat, he did not strike any part of the inside of the car, he was not cut or bruised and had no marks of injury on his person. The plaintiff got out of his car and walked back to defendant’s car. The cars were moved off the traffic lanes and, in response to a call, police officers came and investigated the accident, but no arrests were made. The plaintiff testified he was “nervous and shook up”, but he did not tell anyone at the scene of the accident that he had been injured.

Both parties were driving Chevrolet passenger cars. At the time of impact the front end of defendant’s car was lower than usual and the rear end had risen due to the fact that the brakes had been fully applied and the car was sliding to a stop. In this posture the defendant’s front bumper went under the plaintiff’s rear bumper and the headlights, grill and radiator on defendant’s car were damaged. A taillight on plaintiff’s car was bent. He also testified the deck lid was sprung about an inch and the bumper was bent, but pictures of the rear of plaintiff’s car, put in evidence by the defendant, did not show the damage claimed. Plaintiff also testified the damage to his car was very light and no repairs had been made except he replaced a bulb in the taillight for which no charge was made.

The plaintiff, forty-eight years old, had been a truck driver for twenty-one years and was employed by Associated Grocers as driver of a tractor-trailer. He drove his car home; he felt weak, his neck hurt, he started to get a headache and he laid down for about an hour. He went to work the next day at 4 a. m. and worked twelve hours. He worked about ten hours the next day. He started to feel pain in his neck about three days after the accident and laid off for two days. He rested and saw his family physician, Dr. M. A. Diehr, for the first time. Other than this, he worked eight hours or more every working day up to the time of trial, almost three years later. His chief complaint was a pain in the neck which bothered him especially .in turning to the right. He received treatments from Dr. Diehr three times a week for a year and a half and was given prescriptions. The visits were then reduced to two a week and then to one. He improved under treatment, but still had pain in his neck and periodic headaches. He was able to do everything he did before the accident; however, his neck pains when he turns around to see if the equipment is properly hooked up. Until the time of trial, the plaintiff had no idea how much Dr. Diehr charged for each treatment or what the total charge was. He had not received any statement. The doctor bill put in evidence was for $2,825 and the prescription cost was $165.82. There was no loss of wages and no claim for property damage.

Dr. Diehr was plaintiff’s family doctor and had known him for about ten years before the accident of September 30, 1963. On October 5, 1963, Dr. Diehr gave plaintiff a general physical examination and took X rays. At that time there was a marked tenderness of the cervical vertebrae with pointed tenderness over the fourth, fifth and sixth cervical vertebrae and marked spasticity of the cervical muscles on either side of the cervical spine. Movement of the head forward and from side to side was limited and painful. Swallowing caused considerable discomfort. There was some tenderness and spasticity of the thoracic muscles. There was marked tenderness of the lumbar vertebra and muscles. Bending forward and side to side was limited and painful. His diagnosis was: Severe sprain of the posterior cervical region; sprain of the anterior cervical region; and sprain of the lumbar region of the back. He was given medicine and instructed to use massage. On October 7, 1963, examination disclosed pain in the neck and swelling and pain in his lower back. There was indication of inflammation of cervical and lumbar joints and he administered injections. Plaintiff wanted to continue to work and in order to keep him on the job it was necessary to give him injections regularly. The treatments were given three times a week for a year and a half, then reduced to twice a week and later to once a week.

Dr. Diehr further testified that on May 2, 1966, examination showed some tenderness in right side of his neck when he turned his head to the right. This condition would make it more difficult for plaintiff to perform his duties as a truck driver. He will have some pain and discomfort from time to time and will require treatment for awhile. He treated plaintiff two hundred seventy times. His charge was $10 for each office call and cortisone injection. His first examination disclosed no bruises, lacerations or swelling but some spasticity and limitation of motion in his neck and back. Spasticity of the neck subsided within two to four weeks which was normal. After that the only findings were complaints of pain in the neck. The doctor testified his charges were reasonable and that nothing had been paid on the bill.

The X rays taken by Dr. Diehr on October 5, 1963, were negative for any broken bones or dislocations but did show a small amount of arthritis in the upper lumbar region of plaintiff’s back and a little lipping in the lower part of his fourth cervical vertebra anteriorally indicating a small amount of arthritis. Dr. Diehr testified that arthritis sometimes causes a complaint in a person’s neck and back. He had had the plaintiff under his care from time to time before the accident.

Dr. Lewis Reuter who examined the plaintiff for the defendant in January 1966 found no spasticity, no limitations on bending or turning, no complaint on pressure, and no evidence of disability. X rays taken by Dr. Reuter of the cervical vertebrae of plaintiff’s neck and his lumbo sacral region also showed evidence of hypertrophic arthritis of long standing which would have been present before the accident. Otherwise the X rays were negative.

In a tort action the determination of the amount to be awarded for personal injuries is a matter resting primarily in the discretion of the jury in that it involves the credibility of witnesses and the weight and value to be given their testimony on a fact issue. Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 729 [5]; Combs v. Combs, Mo., 284 S.W.2d 423, 425 [2]; Coghlan v. Trumbo, Mo., 179 S.W.2d 705-706 [4], The trial court has a wide discretion in ruling a motion for new trial which alleges that the damages awarded are inadequate since that court may take into consideration the credibility of the witnesses and may weigh the evidence. Boehmer v. Boggiano, Mo., 412 S.W.2d 103, 110 [8]. The appellate court, however, may not pass on the weight of the evidence in reviewing the action of the trial court. Coghlan v. Trumbo, Mo., 179 S.W.2d 705, 707 [10].

Since the jury at the trial and the trial judge in overruling the motion for new trial have passed on the credibility of the witnesses and the weight of the evidence, the appellate court in reviewing the adequacy of the damage award must view the evidence in the light most favorable to the verdict. Boehmer v. Boggiano, Mo., 412 S.W.2d 103, 110 [7]; Brenneke v. La Chance, Mo.App., 396 S.W.2d 758, 760 [3] ; Porter v. Smoot, Mo.App., 375 S.W.2d 209, 212 [4]; Polizzi v. Nedrow, Mo., 247 S.W. 2d 809, 811 [2], Where the verdict has the approval of the trial court, it is conclusive on appeal unless it is so shocking and grossly inadequate as to indicate that the amount of the verdict was due to passion and prejudice. Boehmer v. Boggiano, Mo., 412 S.W.2d 103, 110-111 [10].

There was no loss of wages in this case and no proof of damage in any consequential amount to plaintiff’s automobile. There was evidence on which the jury could reasonably find that the plaintiff was not injured as a result of the collision or very slightly. All of his symptoms were subjective; there were no visible signs of injury. The plaintiff did not tell anyone at the scene of the accident that he was injured. He did not file suit until July 23, 1965, almost twenty-two months after the accident. The plaintiff was the only person who actually knew if he had pain and suffering. The X rays taken by Dr. Diehr and Dr. Reuter disclosed evidence of arthritis and Dr. Diehr replied in the affirmative when asked if arthritis ever causes “any complaint in a person’s neck and back.” The fact of injury was contested throughout. Plaintiff’s evidence was vague and uncertain in several respects. The burden was on the plaintiff to prove the fact of his injury and its extent. Edens v. Myers, Mo., 365 S.W.2d 559, 561 [1]; Schaefer v. Accardi, Mo., 315 S.W.2d 230, 232 [3]. His failure to persuade the jury is understandable from a reading of the transcript. The credibility of the witnesses for the plaintiff including the medical expert was primarily for the jury to determine. Chapman v. King, Mo.App., 396 S.W.2d 2, 34 [6]. On the evidence adduced, the jury could reasonably have found that plaintiff’s complaints were largely attributable to a pre-existing arthritic condition. Boehmer v. Boggiano, Mo., 412 S.W. 2d 103, 110-111 [9].

On the record before us, we must hold that the damages awarded are not inadequate and that the trial court did not abuse its discretion in overruling the plaintiff’s motion for a new trial. Boehmer v. Boggiano, Mo., 412 S.W.2d 103; Boland v. Jando, Mo., 395 S.W.2d 206; Porter v. Smoot, Mo.App., 375 S.W.2d 209, Davidson v. Schneider, Mo., 349 S.W.2d 908; Grayson v. Pellmounter, Mo.App., 308 S.W. 2d 311; Polizzi v. Nedrow, Mo., 247 S.W.2d 809; Coghlan v. Trumbo, Mo., 179 S.W.2d 705. In addition to Davidson v. Schneider, supra, the plaintiff relied on Pinkston v. McClanahan, Mo., 350 S.W.2d 724, Underwood v. Brockmeyer, Mo., 318 S.W.2d 192, Ulrich v. Kiefer, Mo.App., 90 S.W.2d 140, Davis v. City of Mountain View, Mo.App., 247 S.W.2d 539, and English v. Thrower, Mo.App., 146 S.W.2d 667. All of these cases are distinguishable on the facts; they do not dictate a result contrary to the one reached.

The judgment is affirmed.

HENLEY, P. J., and SEILER, J., concur.

HOLMAN, J., not sitting.


source: Caselaw Access Project

author: HIGGINS, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. George Henry TAYLOR, Appellant.
    No. 52692.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 11, 1967.
    As Modified on Court’s Opinion Dec. 20, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, James M. Byrne, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Robert S. Allen, John L. Davidson, Jr., Daniel E. Singer, St. Louis, for defendant-appellant.
   HIGGINS, Commissioner.

Appellant, under indictment for murder, first degree, was convicted of that charge by a jury which assessed his punishment at life imprisonment. Sentence and judgment were rendered accordingly.

Decedent, Lillian Heller, age 61, lived with her husband in an apartment at 4254 Olive Street. She had worked many years for a downtown law firm and her usual working hours were 9 a. m. to 5 p. m. On December 30, 1964, Mrs. Heller was carrying a large black patent leather purse. She was last seen at work that afternoon. At about 6:45 to 7:00 p. m. she was found lying at the bottom of the stairway in the darkened hallway of her apartment building. She had been shot and died shortly thereafter. A search of the immediate area revealed a wallet containing about $138.50 “lying along her right side” and some items of jewelry on her person “underneath her.” The purse was not found. The witness who discovered the body heard cries for help; the husband at home upstairs heard no shot. Investigation at the scene produced no eyewitnesses; two colored boys were reported running away from the vicinity about the same time the body was found. The coroner’s opinion was that Mrs. Heller was shot in the right chest at close range.

On January 2, 1965, defendant cashed a $10 check in an East St. Louis, Illinois, grocery store. The check was payable to Lillian Barlar, the name by which Mrs. Heller was known at her place of employment. The check had been given to Mrs. Heller (Barlar) December 15, 1964, as a bonus by her employer. The check was endorsed by defendant in the presence of the store owner after defendant’s mother vouched for him. Shortly after receiving the money on it and leaving the store, defendant returned, asking for the check, but it had been further negotiated to a bread truck driver.

On February 5, 1965, the bookkeeper at the law firm noticed that the endorsement was not the signature of Mrs. Heller. She called the police and, on February 11, 1965, defendant was arrested and charged with suspected forgery and murder.

Defendant was interrogated on February 11, 12, 13, and 18, 1965, and his oral statements were suppressed by the court on the ground that the warnings given defendant did not satisfy the requirements of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. A gun was traced to defendant and a ballistics expert gave his opinion that a bullet fired from it matched the bullet taken from the victim’s body.

The defendant did not testify but offered an alibi witness.

The case was submitted on the felony-murder doctrine and, although contending that defendant should have received an instruction on second degree murder, appellant does not contend that the State failed to make a submissible case.

Appellant contends that the court erred in overruling his motion to suppress and admitting into evidence the gun and ballistics testimony on the ground that they were obtained as a result of interrogation properly suppressed as illegal by the trial court. Stated another way, the contention is that the State “did not prove that the gun was obtained from an independent source,” but was, instead, “fruit of the poisoned tree.”

The issue thus presented is whether the gun and ballistics evidence was a product of illegal interrogation and therefore inadmissible, or whether there'was evidence adduced by the State from which the court properly could find that the questioned evidence was not a direct result of illegal interrogation and therefore admissible.

“[U]nless and until such warnings (those concerning an accused’s privilege against self-incrimination) are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Miranda v. State of Arizona, supra, 384 U.S. 1. c. 479, 86 S.Ct. 1. c. 1630. Such exclusionary rule has no application, however, where the State learns of the allegedly inadmissible evidence from an “independent source,” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319, or where the connection between the lawless conduct of the police and the discovery of the challenged evidence “may have become so attenuated as to dissipate the taint,” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307; and “(not) all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441.

The gun, Exhibit 13, and ballistics test were held admissible after a hearing outside the presence of the jury, and the record at that hearing demonstrates the propriety of, and supports the court’s ruling within the meaning of the foregoing cases.

Troy Carter previously had identified himself as the manager of an automatic car wash at 3675 Market Street. He had employed the defendant, George Henry Taylor, around January 7, 1965, and he worked for about a week.

“By Mr. Walsh (State’s attorney) : Q Mr. Carter, I’ll hand you what has been marked State’s Exhibit No. 13, sir, and ask you have you seen that gun before, ever before? A Yes, sir. Q Where did you first see that gun ? A Received it from George Taylor * *

Next follows the continuing objection that “all of the testimony of this man is the product of that poisoned tree.”

“Q (By Mr. Walsh) Now, when and where did you first see that gun? A Approximately the middle of January. Q Of what year? A Of 1965. Q And where were you when you first saw it ? A I was at the car wash.
“Q And who gave you that gun? A George Taylor. Q That’s the defendant here? A Yes, sir. Q And he gave it to you at the car wash ? A Yes, sir. Q- What time of the day? A Around five o’clock in the afternoon. Q Was he working that day? A No, sir. Q What was he doing there? A He called me and wanted to borrow money. Q He called you on the telephone? A Yes, sir.
“Q He wanted to borrow money? What did he say? A I wouldn’t let him have the money. Q No. No. What did he say? You say he wanted to borrow money. What did he say? A He just said: I will need fifteen dollars. Q What did you say ? A I told him I didn’t have it to loan. Q What did he say? A He said if I would loan it to him he would let me hold his father’s gun for security.
“Q All right. And after that he came to the car wash ? A That’s right. ⅜ * * Q All right. Were you outside when he pulled up in the Marcella cab? A I was standing in the office. I could see out there. Q Did you then go outside? A Yes, sir. Q Did you get in the Marcella cab? A No, sir. Q Did he get out of it? A Yes, sir. Q Did you have a car there ? A Yes, sir. Q Where was it parked? A It was parked near where the cab parked. Q Did you get in your car ? A Yes, sir. Q Did he get in your car ? A Yes, sir.
“Q Did you see any gun when he got in your car ? A He took it out of his pocket. Q Out of his pocket. You didn’t see it before he took it out of his pocket? A No
“Q Is that the gun he took out of his pocket? A Yes. Q Did he hand you that gun? A Yes, sir. Q What did he say when he handed it to you ? A He says: It shoots good. Try it if you want to. I fired it the other day, and it shoots good. Q Did he say then at that time whose gun it was ? A He said it was his father’s and he did want it back. Q Repeat that. A He said: It’s my father’s pistol. I do want it back. Q He does want it back. Did you then loan him some money? A Yes, sir. Q How much did he ask for ? A Fifteen dollars. Q How much did you give him? A Fifteen dollars.
“Q All right. And after that, what did you do with the gun ? A I took it upstairs and I wrapped it, took the shells out of it. Q How many shells were in it ? A There were four. Q When he handed it to you, was it loaded with those four? A Yes, sir. Q You took the shells out. Go ahead. A I took the shells out and wrapped it in a shop towel, put the shells in a little box, took it all upstairs and put it on top of a little room up there. THE COURT: Top of what? THE WITNESS: Top of a small room. Had been a rest room at one time. Q (By Mr. Walsh) All right. Now, and you kept it up there for sometime, is that correct? A That’s right.
“Q Now, did you turn that gun over to the police? A Yes, sir. Q What police officer did you contact? A I contacted Sergeant A1 Graeff. Q Sergeant A1 Graeff? A Sergeant A1 Graeff. Detective. THE COURT: How do you spell that? THE WITNESS: G-r-a-e-f-f. Q (By Mr. Walsh) Is he in the Intelligence Unit of the Police Department? A I’m not sure. I think he is, but I’m not certain what department he is in. Q And you knew him? A Yes, he’s a friend of mine.' Q Did you tell him that you had a gun that Taylor pawned with you? A Yes, sir. Q All right. Did Graeff come out to get the gun? A No, sir. Q Did he send somebody out to get the gun? A Yes, sir. Q Who did he send out? A Detective Rowane. Q Detective Rowane of the Homicide Squad? A That’s right.
“Q All right. Had you found out that Taylor was under arrest? A Yes, sir. Q And is that why you called Sergeant Graeff to tell him that you had the gun? A Yes, sir. Q Nobody asked you if you had his gun, did they? A No, sir. Q So you voluntarily called Sergeant Graeff and turned it over? A Yes, sir. Q You had discovered he was under arrest and charged with murder? A Yes, sir. Q And nobody asked you again, Troy Carter, if you had any gun, did they? Q No, sir.”

On cross-examination:

“MR. DAVIDSON: Q What day was this you turned this over to Sergeant Row-ane? A I’m not sure. I think it was the 17th of February. Q Now, had Sergeant Rowane or any other police officer been to your car wash prior to that time ? A Yes, sir. Q And when was that ? A That was the day before, the day before I called them up again. Q And had they been making inquiry about a gun? A No, sir. Except one trip. The last trip they did. Q But before that, hadn’t they interrogated other people around the car wash? A Yes, sir. Q About a gun, hadn’t (they) ? A I don’t know what it was about. Q But it could have been, couldn’t it? MR. WALSH: Object to what it could have been. THE COURT: Objection sustained. Q (By Mr. Davidson) But in any event you first learned about Taylor being under arrest when the police were out there, didn’t you ? A Yes, sir.”

Defendant then called Detective Rowane.

“BY MR. DAVIDSON: Q Your name, sir? A Thomas Rowane. Q And your profession is that of a police officer, sir? A Yes, sir. Q And you hold the rank of Detective in the Metropolitan Police Department, is that correct, sir? A Yes, sir. ■Q And with Corporal Dwyer you were investigating the murder of Lillian Heller? A Yes, sir. Q As part of that investigation, you interrogated the defendant, did you not? A Yes, sir. Q You see him in the court here? A Yes, sir. Q And indicating the defendant, George Henry Taylor. And you interrogated him on February 12, did you not? A Yes, sir. THE COURT: Sixty-five? MR. DAVIDSON: 1965. Thank you, Judge. Q (By Mr. Davidson) And you asked him about the gun that he used, did you not? You asked him about any gun, did you not? A I can’t say I asked him about the gun on February 12th. No, sir.
“Q Supposing we get the police report and you refresh your memory. I’m handing you photostats of the documents which were produced by the State at the order of Judge Casey, and I want you to look them over, and I want you to tell me what days you interrogated Mr. Taylor. A I didn’t interrogate him on the 12th, but I think the statement he gave us about the gun was on the 13th.
“Q All right. He gave it to you on the 13th. And what did he tell you about the gun ? A He gave us different versions of what happened to the gun. At first he stated that he was stopped on the street and the gun was taken away from him by a police officer, and we asked him who the police officer was and where it occurred and he couldn’t state. Q What else did he say about it? A And he stated that he had the gun in his coat pocket and he was in a tavern and the gun was stolen out of his coat pocket while he was in this tavern. Again he was questioned as to the location of the tavern or any other information and he stated he couldn’t give any. Q And what else did he say about it? A That he pawned the gun to a light-skinned Negro male who was about thirty years of age. He pawned it for fifteen dollars, and this was at a car wash where he worked on the 3600 block of Market Street, and he stated that this Negro male had quit there about a week ago.
“Q And what did you do then after the interrogation ? Did you go to the car wash ? A Not that particular day. Q What day did you go? A On the 17th of February. Q Didn’t you go out there and — Did you or any other police officer go out there before the 17th? A Not from our office as far as I know. No, sir.
“Q Now, I want to direct your attention to — You remember testifying before Judge Casey this summer? A Yes, sir.
“Q I asked you this question: That was after interrogating everything you had gotten information about the car wash, is that it? And you made this answer: Yes, sir. And, question: When you said, ‘We went out to the car wash,’ I assume you’re referring to — * * *
“Q (By Mr. Davidson) And after you questioned him and he told you the gun was at 3300 Market, you went out there, is that it ? Answer: I am not quite sure he said it was 3300 or whether he said it was a car wash on Market. However, later on checking we did go to the car wash and recovered the gun. Question: That was after interrogating him and everything you had gotten the information about the car wash, is that it? Answer: Yes, sir. When you said we went out to the car wash, I assume you were referring to your fellow officer, Corporal Dwyer, is that correct? Answer: Yes, sir. We- went to the car wash and first interviewed this man and then later he called us and told us there was a gun out there, and Corporal Dwyer and I went out to the car wash. Who did you interview out there? Troy Carter. Now, didn’t you go out there one time before you recovered the gun? A That whole statement is correct except that I went out there by myself the first time. It’s all the same day. Q You went out there the first time? A Yes, sir. Q And then after that you got a call from Troy Carter who had a gun there, is that it? A Well, I didn’t get the call. Q But it came in after you went out there? A Yes, sir. Q And you had made inquiry about a gun, did you not? A Yes, sir. MR. DAVIDSON: I have no further questions of this witness at this time.”

On cross-examination:

“BY MR. WALSH: Q Now, Officer Rowane, no one called you about having a gun, Mr. Carter or anyone else, did they, sir? A No, sir. THE COURT: What was his question? MR. WALSH: Did anyone call him about having a gun, Mr. Carter or anyone else. And his answer was ‘No’.
“Q (By Mr. Walsh) And of course you know of your own personal knowledge that Mr. Carter called Sergeant Graeff of the Intelligence Unit about this gun?
“MR. DAVIDSON: Well, I’m going to object to that question. MR. WALSH: I can ask him. This is cross examination, Your Honor. THE COURT: If he knows. Q (By Mr. Walsh) Do you know? A Yes, sir.
“Q And you further know that Sergeant Graeff then passed this information on to Captain Walsh of the Homicide Squad. Do you know that? A That’s my understanding.
“MR. DAVIDSON: I ask the answer be stricken. MR. WALSH: It’s cross examination. THE COURT: To which? THE WITNESS : That’s my understanding, yes, sir. That Sergeant Graeff— MR. DAVIDSON : I’m going to object to what his understanding is or anything else. THE COURT: Objection sustained as to what his understanding is.
“Q (By Mr. Walsh) And of course you —Your Department before there was any conversation about the gun was aware that Taylor worked at a car wash somewhere, isn’t that correct? A Yes, sir. Q And were you not investigating car washes all over the City of St. Louis to find out which car wash he worked at? A Yes, sir. Q You were? A Yes, sir. THE COURT: Wait just a minute now. All right.
“Q (By Mr. Walsh) And when you testified over there in front of Judge Casey you were asked the question whether or not he told you the gun was at 3300 Market, your answer was: I’m not quite sure he said it was 3300 or whether he just said it was a car wash on Market. Is that correct? A Yes, sir. Q As a matter of fact, the car wash is actually in the 3600 block of Market Street, not the 3300, is that correct? A That’s correct.
“Q And of course when you went out there, you were looking for a light-skinned Negro male approximately thirty years of age, isn’t that correct? A Yes, sir. Q You were not looking for a white man named Troy Carter? A No, sir. Q And you interviewed Negroes working at the car wash of that approximate age, is that correct? A Not at that particular time. No, sir. Q Did you at a later time? A Yes, sir. Q And you never did interview Mr. Carter as to whether or not he had the gun, the white man, did you? A No, sir. MR. WALSH: No further questions.”

On redirect examination:

“Q (By Mr. Davidson) Were you on the phone when that man called? A No, sir. Q Were you with Mr. Carter? A No, sir. Q Were you in the Intelligence Room when he called? A No, sir. Q Then you don’t know whether anybody called, do you?
“MR. WALSH: Your Honor, I object to the form as being argumentative and further he has called this witness. It’s his witness and he’s bound by his answers. It’s improper. MR. DAVIDSON: I’m not bound by his answers. THE COURT: Objection overruled.
“MR. DAVIDSON: What’s the question? Answer the question. THE WITNESS : Excuse me. Repeat the question. MR. DAVIDSON: Read it to him. THE COURT: He said he was ip neither place.
“Q (By Mr. Davidson) And you don’t know then, do you, whether anybody called anybody, do you ? A Only what I was told, sir. * * * Q (By Mr. Davidson) He (defendant) told you what car wash he worked at, didn’t he ? A Yes, sir. Q And there’s only one car wash out in that general vicinity, is there not? A I know there’s one on Market Street, the one we’re talking about. MR. DAVIDSON: No further questions. MR. WALSH: No further questions, Your Honor. THE COURT: Do either of you have any further evidence on this particular issue, that is, the circumstances that led to the obtaining of this weapon by the police? MR. WALSH: No, Your Honor. I think it’s very clear. The witness has testified under oath that he called the Police Department, told them that he had the weapon, called the Sergeant in the Intelligence Unit and turned it over, and this man has testified that he went out to look for a thirty-year old Negro male, and he did not ask Mr. Carter if he had any gun, so I think it’s very clear. * *
“THE COURT: Recall Troy Carter. I’m going to ask Troy Carter one question. * * * Q (By the Court) Mr. Carter, you were aware that police officers were making an investigation at your car wash in connection with Mrs. Heller’s death, were you not? A I didn’t know what it concerned. They were just asking about George Taylor. Q They were asking about George Taylor? A Yes, sir. If he had worked there. I didn’t know what it concerned. Q You knew that he had been arrested, is that true ? A Yes, sir, but I don’t know on what charge. Q What did the police ask you when they interrogated you ? A They never interrogated me until the second trip and then they asked me about the gun, if I had seen any of the fellows with a gun. Q They asked you on the second trip if you had seen any of the fellows with a gun? A Yes, sir. Q It was on the second trip that you turned the gun over to them? A Sure was, Your Honor. Q And that was after your telephone call to Sergeant Graeff, was it not? A That’s right. Q Do you know what inquiry or what questions the police asked on their first trip to the car wash ? A Sure don’t, Your Honor. Q You don’t? A They didn’t talk to me. Q You knew they were asking questions, but that’s all ? A That’s all. Q Did you know that they were out there searching for a gun? A No, sir, Your Honor. * * *
“THE COURT: -I find from the evidence that the pistol in question, Exhibit 13, was not obtained by the Police as a direct result of police interrogation of the defendant within the meaning of the fruit of the poisoned tree doctrine and under those circumstances, Mr. Walsh, you may proceed on that basis.”

Thereafter, in the presence of the jury, Mr. Carter reiterated much of this testimony, including an identification of the gun, a description of his receipt of it in pawn from defendant, and his delivery of it to the officer who deposited it with ballistics. Detective Rowane, of course, was not permitted to disclose defendant’s statements.

Appellant relies on cases which, although stating and warranting application of the exclusionary rule, are to be distinguished from this case. In Wong Sun v. United States, supra, one Toy made certain incriminating declarations which were properly excluded from evidence because of the circumstances under which they were made. Those declarations led directly to one Yee as the possessor of the narcotics which were seized and used as evidence against Wong Sun, Toy and Yee. Their conviction was reversed for failure to exclude the narcotics as an unlawful product of an unlawful statement. The case is distinguished by the court’s own statement of the issue: “We now consider whether the exclusion of Toy’s declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that ‘we wouldn’t have found those drugs except that Mr. Toy helped us to.’ Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence ‘from an independent source,’ Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319.” 371 U.S. 1. c. 487, 83 S.Ct. 1. c. 417. In United States v. Paroutian, 2 Cir., 299 F.2d 486, two illegal searches of an apartment were made at which times it was noted that a closet had a new cedar lining installed by the occupant. The lining was tapped but attempts to remove it were unsuccessful. At a later time, after possession of the premises had been returned to the landlord, a lawful search was conducted during which it was discovered that the closet contained a secret compartment which served as a cache for narcotics. Narcotics seized there were used as evidence in the ensuing prosecution. The question was “whether the evidence actually seized in the (last) search, which, occurring after Paroutian was out of possession of the premises and lawful under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, is ‘tainted’ by the first two illegal searches.” 299 F.2d 1. c. 488. The court stated that the exclusionary rule “extends only to facts which were actually discovered by a process initiated by the unlawful act. If information which could have emerged from an unlawful search in fact stems from an independent source, the evidence is admissible.” 299 F.2d 489 [4]. In rejecting the claim of evidence from an “independent source” the court held: “The extreme interest in the closet shown by the agents on the first unlawful search demonstrates that it was Spolan’s (landlord’s agent) statement about the closet lining which ultimately led to the discovery of the heroin and the letter. Of course, even without an unlawful search, the agents might have found the secret compartment. But that is not what happened * * *. Had the government shown that it had knowledge of the secret compartment from an independent source, the evidence would of course have been admissible.” 299 F.2d 489 [5,6]. In People v. Ressler, 17 N.Y.2d 174, 269 N.Y.S.2d 414, 216 N.E.2d 582, defendant, in the absence of his lawyer, was illegally misled into making a statement in which he told that he threw his gun into the river. The illegal statement was properly excluded, and so also the gun, because its retrieval from the river could be traced to no clue or lead other than that which was furnished by the accused himself. The defendant in People v. Buchanan, 63 Cal.2d 880, 48 Cal.Rptr. 733, 409 P.2d 957, was once arrested and, upon refusal to talk and request for counsel, was released. He was rearrested later and, without further advice on his right to counsel, was trapped into describing a fatal fight and shooting at a dance hall and his own possession of the gun recovered from him as a direct result of his statement. “It (was) obvious that, since the gun was secured by the police as a result of the statement obtained in violation of the rule * * * it too should have been excluded as the ‘poisonous fruit’ of the illegal statement.” 409 P.2d 1. c. 961 [6]. In People v. Robinson, 13 N.Y.2d 296, 246 N.Y.S.2d 623, 196 N.E.2d 261, defendant’s admission was inadmissible because his lawyer was not present, and guns found in the attic of his house as described in his admission were likewise inadmissible, clearly a situation of “exploitation of the primary illegality, (requiring that) such evidence must also be excluded.” 196 N.E.2d 1. c. 262 [4].

In contrast, the facts of this case warrant a finding that the gun was not a “fruit of the poisonous tree” but came instead from an independent source. At best, defendant’s suppressed statement led certain police to look for a car wash'at 3300 Market in search of a “light-skinned negro” with whom he had left a gun. Those officers found neither the described car wash, such a described person, nor the gun as a direct result of the statement. They did, however, continue their efforts and interviewed some negroes at a car wash at 3675 Market Street. Again the result was negative, in that nothing in defendant’s statement resulted in finding the “light skinned male” or in obtaining the gun. On the following day Troy Carter learned that police had been at his car wash (not the one described in defendant’s statement) asking questions about his former employee, George Taylor. He was not told the subject of the investigation, nor was he advised that the questions asked concerned a gun or any crime, and there is apparent contradiction in his testimony on the extent of prior knowledge of the circumstances of defendant’s arrest. Even if he were then aware that Taylor had been arrested on suspicion of murder, the evidence shows and warrants a finding that independently and of his own volition Troy Carter called his friend in the police department and volunteered information that he had possession of a gun pawned to him by defendant. From that source, independent of defendant’s statement, came the gun ultimately shown by ballistics tests to be the murder weapon. Such circumstances are clearly within the exceptions to the exclusionary rule of the cited cases. Had defendant's statement described the car wash at 3675 Market, named Troy Carter as the bailee of the gun, and had such statement led police to Carter and caused production of the gun, the case might well have been one calling for application of the exclusionary rule.

A parallel to the problem of this case is contained in the recent “line-up” cases in the United States Supreme Court, e. g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149-1164-1166 [14-17]: “We come now to the question whether the denial of Wade’s motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. * * * Where, as here, the admissibility of evidence of the lineup identification itself is nob involved, a per se rule of exclusion of courtroom identification would be unjustified. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307. * * * We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (see quotation previously set forth). * * * On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination * * *. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing (in the District Court) to determine whether the in-court identifications had an independent source * * *.” The obvious difference between United States v. Wade and this case is that this is a stronger case for the exception to the exclusionary rule because of the previously demonstrated presence of evidence in the existing record from which the court properly determined the gun admitted in evidence to have come from an independent source as opposed to being “fruit of the poisoned tree.”

Appellant charges the court erred in failing to declare a mistrial because “the state improperly prejudiced the defendant by asking a witness in the presence of the jury about his unlawful interrogation of defendant.”

The complaint arises from this context: Prior to trial and before a judge other than the trial judge, defendant’s motion to suppress his statement was overruled; but during trial a similar motion was sustained on the ground that he had not been given the entire warning on constitutional rights as set forth in Miranda v. State of Arizona, supra. In addition the defense advised the court and the state of objections to the admission of the statement or any reference to it. At trial the following took place in the examination of Sergeant Dwyer:

“Q (By Mr. Walsh) Did you have any conversation with him? A Yes, sir. '
“MR. DAVIDSON: I object and at this time I’m asking the jury be withdrawn and a mistrial declared. THE COURT: Motion for mistrial is denied. MR. DAVIDSON: I’m objecting to the question. THE COURT: Objection to that question is overruled. Now— MR. WALSH: May I proceed, Your Honor ? THE COURT: You have nothing else at this point? MR. DAVIDSON: No, sir. THE COURT: Wait just a minute. MR. WALSH: Yes, Your Honor. THE COURT: All right.
“Q (By Mr. Walsh) Now, did you direct any questions to him? A Yes, sir.
“MR. DAVIDSON: Your Honor, I’m going to object again. This is highly improper. We have discussed this before, and there’s no showing that there has been any proper warning given. This is questions solely put to prejudice this defendant. I’m asking the jury be withdrawn and a mistrial declared. MR. WALSH: Your Honor, if the Court please, Mr. Davidson should confine himself to the rules of the Court. If he wants to make a speech, he should get a box. THE COURT: The motion for a mistrial is overruled. Will you please both come over here ?”

Thereafter, a hearing outside the presence of the jury was conducted resulting in a continued suppression of any statements made by defendant on the ground that “defendant was not provided the safeguards outlined in Miranda prior to his in-custody interrogation,” the court further stating in overruling the motion for mistrial, “I don’t believe Counsel’s asking the questions that he did was of such a prejudicial nature as to warrant a new trial.”

Appellant’s contention is that the two questions were references to an unlawful and properly suppressed statement and were, therefore, prejudicial, all of which warranted a declaration of mistrial.

Appellant concedes that “declaration of a mistrial does rest largely in the discretion of the Trial Court * * * (but) here we rely principally upon United States v. Pinkerman, 374 F.2d 988 (4th Cir., 1967),” where also defendant’s statement was suppressed for failure to comply with Miranda v. State of Arizona, supra. That case is not in point, however, because the question asked by the prosecutor of the state’s witness, Special Investigator Woodward, “Did Mr. Pinkerman under those circumstances and at that time (at the time of his arrest) make any comment in your presence?” could well have conveyed the impression to the jury that the defendant had made some sort of confession or incriminating statement at the time of arrest which was, on trial, being hidden. In contrast, the most that can be said of the two criticized questions asked of Sergeant Dwyer is that they establish that Dwyer did converse with and question defendant. There is no implication of any answer, incriminating or otherwise, such question or conversation is not shown to have related to this case, and they are not indicative of patent unfairness. Under these and the other circumstances of this case, the trial court did not abuse its discretion in not declaring a mistrial and examination of the whole record indicates great care by the trial judge in this instance, as throughout the trial, in preserving appellant’s right to a fair trial. State v. Taylor, Mo., 324 S.W.2d 643, 647 [7].

Other citations by appellant are equally distinguishable from this case: In Moorer v. State of South Carolina, 4 Cir., 368 F.2d 458, defendant’s statement had been suppressed in anticipation of Miranda v. State of Arizona, supra, yet officers were permitted to testify that he had made a free and voluntary statement, clearly implying the existence of an incriminating admission. And in United States v. C. L. Guild Construction Co., D.C.R.I., 193 F.Supp. 268; State v. Selle, Mo., 367 S.W.2d 522, and State v. Spencer, Mo., 307 S.W.2d 440, the questions asked simply made reference to other indictments or charges in an improper effort to impeach the defendant’s case.

Finally, appellant charges error in failing to instruct on murder in the second degree.

This case was submitted under the felony-murder doctrine, i. e., under Section 559.010, V.A.M.S., which, among other definitions, defines first degree murder as “ * * * every homicide * * * committed in the perpetration or attempt to perpetrate any * * * robbery * * There was no attempt to prove premeditation or malice aforethought, but there was evidence from which the jury could find that the defendant killed his victim while robbing her of her purse and a $10 check which he later negotiated for cash. Appellant argues that the evidence of an attempt to rob is not conclusive but concedes that “the evidence on that issue is at best a jury question.” Where the evidence supports a finding that a homicide occurred during perpetration of a robbery, an instruction on first degree murder under the felony-murder doctrine is supported and properly given to the exclusion of an instruction on a lesser offense. State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 563 [21]. State v. Kyles, 247 Mo. 640, 153 S.W. 1047, and State v. Henke, 313 Mo. 615, 285 S.W. 392, cited by appellant, are not in point in that they are not felony-murder cases.

Review required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows the indictment in proper form and sufficient. Defendant was accorded jury trial upon his plea of not guilty with competent counsel throughout trial and on appeal. The verdict is in proper form and responsive to the issues. The punishment is within legal limits. Motion for new trial was considered. Allocution was granted.

Judgment affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.


author: PRITCHARD, Commissioner. PER CURIAM:

text:
    J. C. BRASSFIELD and Hazel Annette Brassfield, his wife, Appellants, v. Ronald SEARS, Respondent, Charles Russell Thornhill, Defendant.
    Mo. 52547.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.
    McCormick V. Wilson, Jefferson City, for appellants.
    Hugh Phillips, Camdenton, Allen, Wool-sey & Fisher, Russell G. Clark, Springfield, for respondent.
   PRITCHARD, Commissioner.

In this rear-end collision case appellants contend that there was insufficient evidence to justify the contributory negligence instruction No. 7 submitting that “Plaintiff J. C. Brassfield suddenly slowed his automobile on the highway without first giving an adequate and timely warning of his intention to slow.” It is further contended that there was not sufficient evidence to justify the submission that the alleged sudden slowing was negligent, and to justify a finding that Brassfield’s alleged failure to have given an adequate and timely warning was the proximate cause of the collision. With respect to the latter contention it is said that the uncontroverted evidence shows that respondent, Sears, was not watching Brassfield’s car, and would not have seen or heeded a warning whether it had been given or not given. “Furthermore, Sears was already aware that Thornhill (driver of the third car, a red Pontiac, at the scene) was out of control and interfering with traffic in the southbound lane.”

The collision happened at 4:15 p.m. on November 30, 1963, on U. S. Highway 63 in Boone County, between Jefferson City and Columbia, Missouri, and about 9 miles south of Interstate 70. J. C. Brassfield, his wife, Hazel Annette (also a plaintiff), and their two children were driving southerly in a 1961 black Cadillac. Sears, in a 1963 white Cadillac, was behind and following the Brassfields. According to State Highway Patrolman Eugene Hancock, at the scene of the collision, which he investigated, the road is fairly straight. There is a hill, the top of which is 200 to 300 feet, to the north of the scene, which can be seen as one comes over the hill crest. Patrolman Hancock found the back end of Brassfield’s Cadillac damaged, as was the front end of Sears’ Cadillac. There were skid marks 72 feet in length behind Sears’ Cadillac and leading up to it. He found debris in front of it, and on the shoulder, the biggest part in the western or southbound lane. He determined that the Thornhill car made tire marks on the shoulder and ditch on the east side of the highway, which marks went down the ditch for 160 feet, back on the pavement to 3 feet across the center line, then back into the northbound lane again. Hancock talked to Sears who said, “the red car crossed the road and this car (Brass-field’s) suddenly stopped in front of me and I hit him.” Brassfield told Hancock, “As I came down a hill, a red Pontiac ran off the road and came about a — across the road into my lane and I applied my brakes and this car behind hit me.” Hancock could not determine whether there were any skid marks made by the Brassfield car.

Steven Hedderich was a witness to the occurrence. He saw the red Pontiac leave the pavement on its east side then go across the highway. Two cars were then approaching him around the curve and down the hill. He saw both approaching cars “take to the shoulder” and heard the crash. He did not see the Pontiac come into contact with either of the other two cars. When he last saw Brassfield’s car it was still moving; it went out of his vision and he could see the Sears’ car coming, but could not say how far behind Sears was from Brassfield’s car.

J. C. Brassfield testified he was traveling south on the highway at 45 to 50 miles per hour, and saw the Pontiac run off the pavement in front of him. “Immediately I applied my brakes lightly, throwing my wife and children all over the car and proceeded to turn off to the right on my side of the road to avoid hitting this red Pontiac. And as I did so I was hit from the rear,” He did not get his car stopped before he was hit. Thornhill was coming to his left side when he was hit from the rear. He then coasted to a stop some 100 yards down the hill. Sears stated to him that he was watching the red car go back and forth, skidding, and did not realize Brassfield’s car was in front of him. Sears told Brassfield he didn’t see him.

Sears testified that he saw the Brass-field car ahead of him as he came over the crest of the hill; he had not seen it prior to that time. He saw a line of traffic coming from the other way, and the red car go off the road and follow the shoulder quite some distance. “I didn’t realize that Mr. Brassfield was coming to a halt until it was too late. But Thornhill did whip back and on to the highway, his front wheels crossed the center line and there he stopped, and Mr. Brassfield’s car stopped before he got to the Thornhill car and as I said, I was concentrating on the Thornhill car.” Sears further testified that he did not observe the Brassfield car until he (Sears) applied his brakes. He did not know for sure if the Brassfield car was stopped, but Brassfield said he had and that he had seen in his rear-view mirror that Sears couldn’t avoid hitting him, so he released his brakes. On application of his brakes Sears skidded 70 feet. At the time his car began to make skid marks was when he applied his brakes. He came approximately 225 feet toward the Brassfield car before he applied his brakes. After he had (first) seen the Brassfield car ahead, he was watching the car in the other lane. When he first saw Brassfield in front of him, it was at such a distance and he (Sears) was traveling at such a speed he could have stopped his car short of hitting him if he had watched him. “A. Yes, as I came over the hill, but like I said, my eyes were focusing on the car on the highway. Q. If you had watched, what was going on in front of you, you could have seen him? A. Yes. Q. And you could have stopped ? A. Right.” Sears did not see Brassfield’s brake lights, and they could have been seen. “I don’t believe they were on, but I can’t say they were not.” At the time of the impact, Thornhill was then crossways in the road, “maybe the length of one car ahead of Mr. Brassfield yet.” There was, according to Sears, enough passageway in Sears’ lane of travel for Brassfield to go forward and not strike the Thornhill car.

There is nothing more firmly entrenched in the law than the requirement that issues submitted in instructions to the jury be supported by evidence from which the jury could reasonably find such issue. “An instruction which is not supported by the evidence is erroneous in that it is misleading and confusing. (Citing cases.)” Hart v. Midkiff, Mo., 321 S.W.2d 500, 508 [10]. The adoption of Missouri Approved Instructions, effective January 1, 1965, after which this case was tried, certainly has not changed the law in this respect. Committee’s Comment to MAI 28.01, p. 230, “Contributory negligence is an affirmative defense which must be pleaded and proved by the defendant. Mo.R.Civ.P. 55.10. Submitting such a defense when not supported by. the record is, of course, reversible error.” While there is evidence here that Brassfield “suddenly stopped” in front of Sears (per Patrolman Hancock’s testimony as to what Sears told him, and the inference from Brassfield’s testimony that although he applied his brakes “lightly” his family was thrown all over the inside of his car), completely lacking is substantial evidence that Brassfield’s sudden stop was done without an appropriate signal as required by § 304.019, RSMo 1959, V.A.M.S. Instruction No. 7 submits that Brassfield “suddenly slowed his automobile on the highway without first giving an adequate and timely warning of his intention to slow,” and further requires the jury to find that this assignment (and disjunctively that of failure to keep a careful lookout) was negligence directly causing or contributing to cause injury and damage to Brassfield. Sears’ testimony (by which he is bound if not explained or corrected, Taylor v. Vestal, Mo., 304 S.W.2d 820, 823 [1,2]) is that as he came over the top of the hill he saw Brassfield’s Cadillac ahead. His attention was then directed to the careening Thornhill car. He didn’t realize Brass-field was coming to a halt until it was too late. He was concentrating on Thornhill, and he did not observe Brassfield until he (Sears) applied his brakes 70 feet back. Whether or not Brassfield failed to give a signal of any kind of his intention to stop as Sears was approaching over some 225 feet to his rear is not in evidence. Sears’ testimony is that he did not see Brassfield’s brake lights which could have been seen. His answer, “I don’t believe they were on, but I can’t say they were not,” is not substantial evidence that Brassfield gave no timely and adequate signal of intention to stop or slow. Under his own testimony he was not observing the car ahead until it was too late to stop or slow and avoid hitting him. There was thus no evidence to justify the submission of slowing without an adequate and timely signal, and the giving of Instruction No. 7 was therefore reversible error. In Pitha v. St. Louis Public Service Company, Mo., 273 S.W.2d 176, 179, an order granting plaintiff a new trial was set aside, and the judgment for defendant was reinstated because plaintiff did not adduce or offer proof that a bus operator ahead did not make an arm signal, “[T]he record wholly fails to show that any evidence of failure to give a warning, or a reasonable, adequate and timely warning was either offered by plaintiff or excluded by the court.” 273 S.W.2d 179 [1-4]. See also Seney v. Trowbridge, 127 Conn. 284, 16 A.2d 573, 575 [1-4], where plaintiff was held not to have made a case because she adduced no proof that defendant failed to give a signal of her intention to turn in front of plaintiff’s passing vehicle; Heimer v. Salisbury, 108 Conn. 180, 142 A. 749, 751 [3], where there was no evidence that defendant did not give a signal for a left turn, but simply that plaintiff saw none. The defendant’s evidence was that he gave the signal “before reaching the intersection.” “On this state of the evidence it would have been impossible for the jury to decide that the signal was not given seasonably.”

Sears’ cases are distinguishable. In White v. Rohrer, Mo., 267 S.W.2d 31, 34, defendant saw plaintiff ahead applying his brakes, but “I didn’t see any stop light at all.” In Crawford v. McNece, Mo., 388 S.W.2d 809, the issue held for the jury of warning turned upon defendant’s evidence that the plaintiff’s stop lights were dirty and could not be seen. But there, defendant had been following plaintiff for some distance, saw her stopped and “slammed” on his brakes, but claimed that he saw no signal of any kind from plaintiff’s car. In Lafferty v. Wattle, Mo.App., 349 S.W.2d 519, a passenger in the following Chevrolet saw the overtaken truck first 100 yards down the road; next upon the setting of brakes by the Chevrolet; then about 20 yards ahead and with a hitchhiker 5 to 10 yards from the truck and running toward it, “ ‘From what I could see it was almost stopped.’ He said that he saw no lights on the rear of the truck, in fact no lights at all. (On cross-examination he said he wasn’t looking for any taillights).” 349 S.W.2d 523. It was said in the Lafferty case, “A negative fact ordinarily must be demonstrated by negative evidence. Negative evidence that T did not hear’ or ‘did not see’ is positive, probative evidence where it is probable or ‘reasonably certain’ that the witness could and would have seen or heard had the event occurred. (Citing cases.) The test is as to whether it is probable or reasonably certain that the witness would have seen and heard had it happened. Of course, this depends upon the proximity and position, the attention or lack of attention of the witness, and the surrounding circumstances. (Citing cases).” 349 S.W.2d 527 [14-16], It was held that the witness was to the rear of the truck and facing forward and was in a position to see a taillight had it been visible, and that evidence was not without probative effect. No such facts here exist. Sears had his attention fastened upon the Thornhill car, and what happened with respect to Brassfield either giving or not giving a signal of his intention to stop or slow during the time that Sears had him in view is not in evidence. There was no evidence that he was looking at Brassfield’s car prior to the time he (Sears) applied his brakes from which it could be deduced that no signal, or a timely and adequate signal was given. Such must be supported by the evidence to justify its submission. See Tucker v. Blankenmeier, Mo., 315 S.W.2d 724, where it was held reversible error to omit from an instruction the additionally required elements of a reasonably adequate and timely warning of an intention suddenly to reduce the speed of an automobile ahead of defendant (who was observing plaintiff’s car and saw no signal). In Woods v. Chinn, Mo.App., 224 S.W.2d 583, also relied upon by Sears, there was a sudden stop by defendant 50 feet ahead of the following plaintiff. The issue of defendant’s negligence in failing to give the statutory signal of his intention to stop (there was evidence from defendant that he gave no signal) was for the jury. The issue as to plaintiff’s contributory negligence, was whether he should have applied his brakes rather than swerving to avoid the collision, held also for the jury. There was no issue of a timely and adequate signal of intention to stop.

The evidence does not conclusively show that an emergency existed in front of Brassfield such as would excuse him as a matter of law of contributory negligence. Although Thornhill was apparently out of control ahead, and crossed the center line, yet, according to Sears, Brass-field had sufficient room to pass Thorn-hill in the southbound lane. Although Thornhill’s acts most probably created an emergency confronting Brassfield, an instruction on that defense is not now authorized. MAI 1.04. Certainly the facts of Thornhill’s actions would be arguable to the jury as bearing upon Brassfield’s contributory negligence if there was evidence to support that defense. His argument that MAI 28.01 upon contributory negligence should have been modified to include a reference to the sudden emergency is not persuasive. The reason that sudden emergency instructions are excluded is that the language is argumentative, and as here applicable, “The jury has already been instructed that the standard of care is measured by what would be done by others similarly situated.” Committee’s Comment to MAI 1.04. “Negligence” was so defined in Instruction 9-A given here by the court. Brassfield’s contention in this respect is ruled against him.

There is yet another reason, urged by Brassfield, why the giving of Instruction No. 7 upon his contributory negligence in failing to give an adequate and timely warning of his intention to slow was error. As above set forth, there was no substantial evidence that Sears was watching Brassfield’s car as he approached from the rear. He would not have seen a statutory warning of Brassfield’s intention to slow had it been given or not given. The assigned omission of that duty in Instruction No. 7 could not therefore have been a proximate cause of the collision. Compare Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, where the facts showed that Gerdeman, the driver of the third car behind the first in which plaintiff was a passenger, would not have seen an arm signal of the driver (Kunzler) of the first car, because Gerdeman was not looking — he was looking at the flood waters as the string of cars crossed the bridge. “The mere fact that injury follows negligence does not necessarily create liability. A causal connection must be established between the negligence charged or submitted and the loss or injury sustained, such that the injury would not have happened but for the negligence, and also that the negligence was not only a cause but was a proximate cause. (Citing cases and authority).” 274 S.W.2d 245 [2]. It was held in Gerdeman that the submitted negligence of Kunzler’s failure to give an arm signal had to be seen and acted upon to be effective; that under all the evidence Gerdeman would not have seen such signal had it been given; and that a finding of causative negligence on Kunzler’s failure to give an arm signal would rest in guesswork, speculation and conjecture. Such is the case here, and Brassfield’s further argument that Sears was aware that Thornhill was out of control, and a statutory signal would have informed him of nothing more, and he would have to stop, need not be considered.

Sears suggests that any error in the giving of Instruction No. 7 on Brassfield’s contributory negligence could not be prejudicial because it would have been reflected by the jury returning a verdict in favor of Hazel Annette Brassfield (for her personal injuries and loss of her husband’s services), against Thornhill and also against Sears. “Due to the fact that on the claim of Hazel Annette Brassfield the jury’s verdict was in favor of Respondent Sears it must be concluded that the jury found no negligence on the part of Respondent Sears.” And “ * * * [T]he fact that the jury returned a verdict in favor of Respondent Sears and against both appellants clearly reflects that it was not misled by Instruction No. 7 and that Instruction No. 7 had no effect upon its verdict.”

The rule that error in the giving of instructions may be cured by the verdict of the jury is not applicable to this case. It is not conclusive, and it does not clearly appear, as contended, that the verdict against Hazel Annette Brassfield could only have been based upon a finding that Sears was not negligent. Her instructions not only hypothesized his negligence under the rear-end doctrine, but also required the finding that she suffered personal injuries and loss of services by reason of her husband’s injuries. It is impossible to know if the verdict against her was rendered upon a finding of no negligence upon Sears’ part, or that she suffered no damages. Tindall v. Marshall’s U. S. Auto Supply Co., 348 Mo. 1189, 159 S.W.2d 302, 307 [7], does not aid Sears. In that case there were different assignments of negligence against codefendants, and it was held that there was no prejudicial error in the giving of a contributory negligence instruction at the request of both defendants because “Evidently the jury found in favor of Cowan on these (different) specifications, and not on the issue of contributory negligence which would have required them to find in favor of the Marshall Company also.” In Taylor v. Riddle, Mo., 384 S.W.2d 569, an instruction directed a verdict for defendants Ford and Corum, but not against Riddle and Fry, if the jury found Ford and Corum did not place warning signals when stopped on the highway. Riddle and Fry claimed that the instruction erroneously injected that charge of negligence against them. The court held that since the verdict was against Ford and Corum, there could be no resulting prejudice to Riddle and Fry. In Skadal v. Brown, Mo., 351 S.W.2d 684, the verdict was upon Count I of plaintiff’s claim for personal injuries, but nothing was given by the jury upon Count II for property damage. Defendant contended the verdicts conflicted with Instruction No. 1, which directed a verdict upon both counts. The court rightly held that the verdict was that there was no property damage incurred, but on the issue of negligence it showed an intent to find for plaintiff. The Skadal case is merely illustrative of a jury’s prerogative to find no damages where it could also find negligence to exist, precisely the case here. In Gorman v. A. R. Jackson Kansas City Showcase Works Co., Mo.App., 19 S.W.2d 559, plaintiff’s verdict-directing instruction required a finding that the truck driver was an employee of both defendants, whereas there was no evidence to support a finding that defendant Gresafi was his employer. The verdict was in favor of Gresafi and against the showcase company, and it was held that as far as it was concerned the requirement in the instruction that the jury find the truck driver was the servant of Gresafi was of an immaterial fact and would have been harmless error. Neither these cases nor others cited by Sears hold that where a verdict is rendered upon either of two possible findings — damage and liability — it is conclusive that such finding was made upon either. In Jones v. Smith, Mo., 372 S.W.2d 71, 78 [10], the court considered the prejudicial effect of an erroneous contributory negligence instruction. It was asserted that even if the instruction was erroneous, the error was nonprejudicial because it was evident that the jury determined the case on the basis of defendant s counterclaim instruction and not on the issue of contributory negligence. It was said, “However, there is no reason to assume that the jury first considered that issue (the counterclaim). * * * Certainly, there is no reason to presume that the jury followed one or the other of the courses available to them.” See also Wright v. Quattrochi, 330 Mo. 173, 49 S.W.2d 3, 8 [8]; Kinney v. National Newspaper Ass’n, 193 Mo.App. 340, 183 S.W. 1086, 1088 [4], where plaintiff contended that the verdict was manifestly for the right party and notwithstanding erroneous instructions the verdict should be affirmed, and it was said, “But the verdict may have been rendered on that part of the negligence covered by the instruction which the Supreme Court has ruled was not tendered as an issue in the petition. In such case, the rule claimed by plaintiff cannot apply”; and see 5A C.J.S. Appeal & Error § 1773(1), p. 1248, “On the other hand, the judgment must be reversed where it is impossible to tell whether the verdict was based on an erroneous instruction, * * *.”

Both Mr. and Mrs. Brassfield say that the granting of an interlocutory judgment of default against the nonap-pearing defendant Thornhill, was prejudicial error. If so, neither can complain as that judgment was granted at their request and the trial court was thereby led or induced to commit the alleged error, if any. Moore v. St. Louis Public Service Co., Mo., 251 S.W.2d 38; Shaffer v. Sunray Mid-Continent Oil Company, Mo., 336 S.W.2d 102.

The error in Instruction No. 7 was applicable only to the claims to relief of J. C. Brassfield. No other error than the granting of the interlocutory judgment against Thornhill is urged as to Hazel Annette Brassfield. As to her, the judgment is affirmed; as to J. C. Brassfield, the judgment is reversed and his case is remanded for new trial upon Counts I and III of his petition.

BARRETT, C., not sitting.

STOCKARD, C., concurs.

PER CURIAM:

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

All of the Judges concur.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    Marie POSSIEN, Respondent, v. Geneva Stone HIGGINS, Appellant.
    No. 52684.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.

      Earl R. Blackwell, Hillsboro, for respondent.
    H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellant.
   STOCKARD, Commissioner.

Defendant has appealed from the judgment of the court decreeing title to real estate in the plaintiff by reason of adverse possession.

George Hofman died on August 28, 1949, survived by plaintiff, his widow, and by defendant, then an adult who was an adopted daughter, the child of a previous wife. George Hofman’s estate, of which plaintiff was administratrix, consisted of ten acres of land in Jefferson County upon which there was located a frame house, inventoried at $2,000, and personal property inventoried at less than $300. As his widow, plaintiff was awarded support for one year in the amount of $800, and was awarded $400 statutory allowance in lieu of personal property. Plaintiff’s claim in the amount of $1,131.55 for the payment of her husband’s funeral bill was allowed. During the administration plaintiff, as ad-ministratrix, requested permission to sell the real estate to pay debts, which was refused (apparently on the theory that the land constituted the homestead), and no appeal was taken. The administration of the estate was closed, and $99.91, the amount remaining after the payment of administration expenses, was awarded to plaintiff “as payment toward” the allowances made to her as widow.

At the time of her father’s death defendant was over the age of twenty-one so she acquired no homestead interest in the land. Plaintiff remarried in 1950, and any homestead interest that she had then terminated. § 513.495 RSMo 1949, V.A.M. S. Dower was never assigned, and no suit for assignment of dower was ever filed by plaintiff, § 469.250 RSMo 1949, V.A.M.S., or by defendant, § 469.420 RSMo 1949, V.A.M.S., and ten years after the death of George Hofman all actions for the recovery or assignment of dower were barred. § 469.470 RSMo 1949, V.A.M.S.

Plaintiff resided on the land after the death of her husband until February 1950 when she moved to New Orleans. Thereafter she rented the property, except for short periods when the property was vacant, and in the summer of 1963 she lived in the house for about two months. Plaintiff collected the rents through an agent, and she made repairs including a new roof to the house, new bathroom fixtures, the installation of a new water heater, and repairs to the well. She paid all taxes. The file contains a letter dated December 13, 1958 from plaintiff’s attorney to defendant in which he states that plaintiff had authorized him to advise her that plaintiff “will take $2,-700 for her life estate in the property.” Plaintiff denied that she made an offer “like this,” and testified that the “deal,” as she remembered it, was that she was “to receive $3,500 for my property if [defendant] got it,” and that after she accepted the offer defendant “wouldn’t buy it.”

In 1965 some neighbors wanted to widen a road, and apparently their effort to obtain the consent of the owner of the land resulted in defendant serving notice on the tenants of the land and on plaintiff that she claimed to be the owner and that the rents should be paid to her. Plaintiff filed this suit to quiet title, and the trial court entered judgment in her favor after finding" that since 1949 she “has exercised complete dominion” over the real estate “to the exclusion of all other claims whatsoever, and, in fact, has paid all taxes thereon as due, made repairs and maintained said property as required, managed the property and collected the rents thereon when not actually residing therein since 1949, and has,' to all the world, exercised the privileges and responsibilities of ownership thereof for more than 10 years last past without challenge.”

Whether the probate court erred in refusing to order the sale of the land is an issue not before us. No appeal was taken, the land was not sold, and the administration of the estate was closed. At that time fee title to the land was in defendant subject to the plaintiff’s homestead rights (which terminated upon her remarriage and that occurred either before or shortly after the administration of the estate was closed), and subject to the widow’s dower and quarantine rights which were not terminated by her remarriage. Westmeyer v. Gallenkemp, 154 Mo. 28, 55 S.W. 231, 77 Am.St.Rep. 747; Annotation, 126 A.L.R. 828.

Plaintiff was in possession of the land at her husband’s death, and by reason of what was known as the widow’s quarantine right, she was entitled “[to] remain in and enjoy the mansion house of her husband, and the messuages or plantation thereto belonging, without being liable to pay any rent for the same.” § 469.220 RSMo 1949, V.A.M.S. Apparently the parties agree that this included the entire ten acres. However, by reason of § 469.470 the widow’s right to dower became extinct unless an appropriate proceeding for the recovery and admeasurement thereof [was] commenced within ten years after the husband’s death,” and since the widow’s right of quarantine given to her by § 469.220, supra, “is an incident of dower and exists only until dower be assigned, it also follows that when the right to have dower assigned expires by limitation and is lost to her, her right of quarantine is also lost.” Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339, 75 A.L.R. 135. During the ten years following the death of George Hofman, plaintiff was in possession of the ten acres by virtue of her quarantine right. Until dower was assigned plaintiff could enforce her right to possession against all persons, including defendant.

It is the general rule that during the time a widow is rightfully in possession of her husband’s lands under her statutory right of quarantine, her possession is not of itself adverse to the heirs. Moore v. Hoffman, supra; Westmeyer v. Gallen-kemp, supra; Swearengin v. Stafford, Mo., 188 S.W. 97; Sherwood v. Baker, 105 Mo. 472, 16 S.W. 938, 24 Am.St.Rep. 399; Null v. Howell, 111 Mo. 273, 20 S.W. 24; Brown v. Moore, 74 Mo. 633; Fischer v. Siekmann, 125 Mo. 165, 28 S.W. 435; Graham v. Stafford, 171 Mo. 692, 72 S.W. 507; Thomas v. Black, 113 Mo. 66, 20 S.W. 657; Moran v. Stewart, 246 Mo. 462, 151 S.W. 439 ; 3 Am.Jur.2d Adverse Possession § 235; Annotation, 126 A.L.R. 821 et seq. In Shoultz v. Lee, 260 Mo. 719, 168 S.W. 1146, it was stated that “In no jurisdiction has the rule been more definitely stated or more firmly adhered to than in Missouri that the widow’s possession of land of which her husband died seised before assignment of dower is not adverse to his heirs.” It has been said in some cases that facts might arise which would render the possession by the widow of lands of her deceased husband adverse as to his heirs, but it has been further stated, as a general rule, that it is “only where there is a divestiture of her dower right, as by release to the heir or tenant, or other' act amounting to a relinquishment of a dower, brought to the notice of the legal owner, that the widow can set up a possession which would be adverse and prove ownership thereunder according to the usual rules.” 3 Am.Jur.2d Adverse Possession § 235; White v. Williams, 260 Ala. 182, 69 So.2d 847. In other words, the widow must affirmatively disavow any claim of right of possession of the land as the widow of her deceased husband, and notice of such disavowal of title must be brought to the heirs. Haynes v. Strange, 232 Ark. 374, 337 S.W.2d 661. In Riggs v. Girard, 133 Ill. 619, 24 N.E. 1031, the payment of taxes by the widow, and in Lambert v. Hemler, 244 Ill. 254, 91 N.E. 435, the payment of taxes and the lease of the property, were held to be insufficient to establish an adverse possession.

Although defendant could have asked for the assignment of dower to plaintiff, § 469.420 RSMo 1949, V.A.M.S., she was under no obligation to take that action, Fischer v. Siekmann, supra, and laches do not run against her for failing to do so. Brown v. Moore, supra.

In this case plaintiff entered into possession of the land by reason of her quarantine right as the widow of George Hofman. Such lawful possession, as in the case of an entry with permission, is presumed to continue absent a clear and unequivocal disclaimer, 3 Am.Jur.2d Adverse Possession § 37, and the burden to establish adverse possession is on the one claiming it. Moss v. James, Mo., 411 S.W.2d 104. While plaintiff paid taxes, rented the property, and made certain repairs, we find nothing which would authorize a finding that she affirmatively disavowed any claim of her right to possess the land by reason of being the widow of George Hof-man. In fact, as late as 1958, as indicated by the letter from her attorney, she apparently claimed only a life estate. While this claim was in error, it demonstrated that she did not claim the fee simple title. For these reasons we conclude that plaintiff’s adverse possession of the land could not have begun prior to August 28, 1959, the time plaintiff’s lawful possession by reason of quarantine terminated, and that plaintiff has not held the land adversely to defendant for ten years.

In plaintiff’s brief to this court she does not assert that she held the land adversely to defendant during the ten years following the death of her husband. Instead, she asserts that “in the application of the principles of equity” the trial court properly decreed title to be in plaintiff. The argument is that if the probate court had not made such an “illegal and totally incomprehensible ruling” in refusing to order the land sold for the payment of debts and the widow’s allowances, “plaintiff would have, of course, at that time become the owner of legal title in fee simple to the real estate”; that a court of equity should “treat as done that which ought to have been done”; and that if this court “finds that the trial court reached the right decision, but not for the correct reason, then this court can yet affirm the trial court.” We cannot assume that if the land had been sold by order of the probate court that plaintiff would have been the purchaser. However, if the ruling of the probate court was erroneous, it was subject to appeal, and as previously noted it was not appealed. The rights of the parties were defined by statute and governed by legal principles. “A court of equity, no more than a court of law may act upon its own conceptions of what is right in a particular case, for established rules and precedents are equally binding upon both law and equity courts; and where the rights of parties litigant are clearly defined by statutes, legal principles and precedents those statutes and legal principles may not be unsettled or ignored. * ⅜ ⅜ Equity Courts may not disregard a statutory provision, for where the Legislature has enacted a statute which governs and determines the rights of the parties under stated circumstances, equity courts equally with courts of law are bound thereby.” Milgram v. Jiffy Equipment Co., 362 Mo., 1194, 247 S.W.2d 668, 676, 30 A.L.R. 2d 925. There was no fraud or other conduct on the part of defendant to warrant the application of equity principles for the relief of plaintiff on the issue of title to the real estate.

We note that defendant sought to recover the rents from the property collected by plaintiff subsequent to August 28, 1959, the date that plaintiffs right of possession terminated. Since defendant seeks an accounting as to rents, plaintiff would be entitled to any offsets asserted and established by her. As a general rule, annotation 126 A.L.R. 825, since the interest of the widow by reason of quarantine is merely a possessory privilege which may be terminated at any time by the assignment of dower, she is under no duty to pay the taxes on the property during the period of quarantine or to make repairs, even though she is entitled to rents. Grogan v. Grogan, Mo., 177 S.W. 649; Shoultz v. Lee, 260 Mo. 719, 168 S.W. 1146; Schowe v. Kallmeyer, 323 Mo. 899, 20 S.W.2d 26; Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81. In certain circumstances the widow has been held entitled to a credit for such expenditures in an accounting with the heirs. Spinning v. Spinning, 43 N.J.Eq. 215, 10 A. 270; Simmons v. Lyle’s Adm’r, 32 Grat. (Va.) 752. In addition, taxes paid and repairs made subsequent to August 28, 1959, should be considered. The facts before us are not sufficient to rule these claims, and in fact they are not presented, but plaintiff should be entitled to present them and her proof in support of them, if so advised.

The judgment is reversed and the cause remanded with directions that title to the land be decreed to be in defendant, and that an accounting between the parties be held if appropriate after there has been an opportunity to assert and establish claims.

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.