author: SAMUEL E. SEMPLE, Special Commissioner.

text:
    Kathy BUSH, a Minor, hy her Next Friend Rosemarie Bush (Plaintiff) Appellant, v. Laverne ANDERSON (Defendant) Respondent.
    No. 31007.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied Oct. 15, 1962.

      Librach, Heller, Byrne & Weber, William P. Byrne, St. Louis, for appellant.
    Barnhart & Sommers, Don B. Sommers, St. Louis, for respondent.
   SAMUEL E. SEMPLE, Special Commissioner.

This is a suit for damages for personal injuries sustained by plaintiff Kathy Bush, as a result of being bitten by a dog owned by defendant Laverne Anderson. A trial was had before a jury which resulted in a verdict and judgment for defendant, from which plaintiff has perfected an appeal to this Court.

A short summary of the evidence presented at the trial reveals that plaintiff, a child approximately three years old, attended a family picnic on July 26, 1960, in company with her mother Rosemarie Bush, defendant Laverne Anderson, Mrs. Cora Buss, Mrs. Gladys Koob, and seven other children, six of whom were the children of defendant. Mrs. Buss was the paternal grandmother of plaintiff, Mrs. Koob was a cousin of plaintiff’s father, and defendant was the widowed aunt of plaintiff by marriage to plaintiff’s deceased uncle.

Following the picnic the entire party drove to defendant’s home. Defendant released her Dalmatian dog named Pierre from the basement of her home, and most of the children, including plaintiff, together with the dog went into a bedroom of defendant’s home to watch television. Plaintiff was petting the dog when her cousin Mike Bush, a son of the defendant, called the dog to him. Kathy came over and stepped on the dog’s foot, and the dog jumped up and bit her right ear, taking off part of the top of the ear. Plaintiff was taken to a hospital and required the services of a plastic surgeon to repair the ear. On one occasion several months prior to the incident involved here, defendant’s daughter Susan Wood had stumbled over the dog while chasing a ball and the dog jumped up on her leaving a mark on her ear. Defendant put disinfectant on her daughter’s ear and applied a Band-Aid. The evidence was conflicting as to whether the dog at that time bit Susan’s ear or scratched it with one of his toenails.

Plaintiff’s first contention of error is that the Court erred in overruling plaintiff’s Motion for a Directed Verdict at the close of defendant’s opening statement. Plaintiff argues that defendant’s counsel in his opening statement admitted that defendant’s dog had made a prior attack on defendant’s daughter and further admitted that defendant’s dog bit and injured plaintiff thereby confessing plaintiff’s cause of action. The portions of the opening statement referred to were as follows:

“They talk about this vicious dog, but the evidence will show that the only other occasion that the dog has ever done any damage to any of the children was to Susie, the young girl sitting to the left (indicating). She was playing out in the alley, playing ball or something, and the dog jumped up and Susie was scratched behind the ear with his fingernail or toenail. Her mother put a Band-Aid on it and she went back out and played.”
“ * * * but the next thing she knew the kids were in the back room with the dog, and Mike will tell you Kathy patted the dog and the dog walked over to Mike, and Mike was petting the dog, and Kathy followed the dog over and stepped on his foot, and that is when the dog nipped her on the ear. The dog reacted, as all dogs do, and nipped her on the ear; and she did, she sustained this injury to her ear, and was taken immediately to St. Anthony’s Hospital where she was given this emergency treatment there.”

The plaintiff cites the general rule laid down, in Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028, 1. c. 1030, that where counsel, in their opening statements, state or admit facts the existence of which precludes a recovery by their client, the court may close the case at once, and give judgment against their client.

The primary purpose of an opening statement is to inform the judge and jury of the nature of the action and defense so as to enable them to understand the case and to appreciate the evidence as it is presented. Hays v. Missouri Pacific Railroad Co., Mo.Sup., 304 S.W.2d 800, l. c. 804, 88 C.J.S. Trial § 161a, l. c. 314. Although a court may take a case from the jury at the close of an opening statement by directing a verdict (Pratt v. Conway, supra), this action should only be taken where it clearly and definitely appears from the opening statement that the plaintiff cannot recover or that the defendant has no defense. Such action by the Court is an extreme measure and should be exercised cautiously and only in a clear case. 88 C.J.S. Trial § 161b, l. c. 318, Hays v. Missouri Pacific Railroad Co., supra.

The remarks of defendant’s attorney in his opening statement are not clear-cut admissions of all of the essential elements of plaintiff’s case leaving defendant without a defense. Defendant’s counsel denied that the dog was vicious. The reference to the incident involving the dog jumping on Susie does not constitute an unequivocal admission of the ultimate fact that the dog had vicious propensities. This is nothing more than a statement of what defendant’s evidence would show, aimed at contradicting the anticipated evidence of plaintiff showing an attack on Susie by the dog. We therefore conclude that the trial court ruled correctly in overruling plaintiff’s Motion for a Directed Verdict at the close of defendant’s opening statement.

Plaintiff’s next contention is that the trial court erred in overruling plaintiff’s objection to defendant attorney’s remarks in his opening statement that defendant was a widow with six children at the time of the incident here in question, and also in overruling an objection to the testimony of defendant that she had six children. Plaintiff argues that such remarks in the opening statement and testimony of defendant were irrelevant and were calculated to, and in fact did, create a feeling of sympathy for defendant.

Beginning with the case of Dayharsh v. Hannibal & St. Joseph Railway Co., 103 Mo. 570, 15 S.W. 554, 23 Am.St. Rep. 900, it has been generally held that in a damage suit for personal injuries it is improper to inquire of a plaintiff relating to the number of people comprising his family and to his marital status; the reason behind this rule being that ordinarily such evidence is irrelevant and would only serve to appeal to the sympathy of the jury and thereby enhance the assessment of damages. See 10 Mo.Digest, Damages <3^170. Although the reported cases in Missouri have applied this general rule only where a plaintiff has offered evidence as to family status, it would appear that the rule should apply with equal force where a defendant offers evidence of family status and the number of people comprising his family when such evidence is irrelevant. The general rule declaring evidence of family status or number of people in a family inadmissible does not apply where such evidence is relevant or pertinent to any of the issues raised in the case. Kingsley v. Kansas City, 166 Mo.App. 544, 549, 148 S.W. 170, l. c. 171. Such evidence, even though inadmissible, does not always constitute reversible error where it appears that such evidence has not affected the merits of the action. Daniels v. Banning, Mo.Sup., 329 S.W.2d 647, l. c. 653.

The reference in defendant counsel’s opening statement that defendant was a widow with six children at the time of the incident in question, when considered separate and apart from all the evidence and circumstances presented to the jury in this case, would at first blush appear to be improper. However, when considered against the background of all the evidence in the case relating to defendant’s marital status and the size of her family, much of the evil complained of by plaintiff, to-wit: the appeal to the sympathy of the jury, disappears. Plaintiff presented evidence that defendant had been married to plaintiff’s uncle, but did not show that the marriage was terminated by death, thus leaving an unfavorable inference that the marriage could have terminated at the fault of defendant. In addition, the defendant testified (without objection by plaintiff) that she had remarried about one month prior to the date of trial. In the light of this evidence, the disclosure that defendant was a widow in the opening statement does not constitute error which affected the merits of this action, such as would require a reversal of the judgment. Daniels v. Banning, supra; Baker v. Thompson-Hayward Chemical Co., Mo.App., 316 S.W.2d 652.

The reference in defendant counsel’s opening statement and defendant’s evidence that defendant had six children was relevant for the purpose of showing who was present in defendant’s home at the time plaintiff was injured and in detailing the circumstances surrounding the incident. In addition, the circumstance of the keeping of a dog for a considerable time in a home where six children lived was relevant to the issue of whether the dog had vicious propensities which were known to defendant. We therefore conclude that reference in the opening statement and in defendant’s evidence as to the size of defendant’s family was admissible under the circumstances shown in this case.

Plaintiff also contends that the trial court erred in allowing defendant to put on testimony as to the peaceable character of the dog for the reason that such evidence was irrelevant and immaterial to any issue in the case. Plaintiff concedes that no objection was made at the trial to the admission of this evidence, but argues that it is a material point which greatly affects the merits of the case and urges that this court review this allegation of error under the provisions of Supreme Court Rule 79.04, V.A.M.R. It is well settled that objections to evidence not presented to or ruled upon by the trial court are not open to review by an appellate court. Supreme Court Rule 83.13(a); Pierce v. New York Central Railway Co., Mo.Sup., 257 S.W.2d 84, l. c. 88(5). It has also been'stated that Supreme Court Rule 79.04 is not to be a refuge for those who fail to make proper objections at the trial. Critcher v. Rudy Fick, Inc., Mo.Sup., 315 S.W.2d 421, l. c. 428(7). In addition to plaintiff’s failure as a matter of procedure to preserve this point, it should be pointed out that defendant’s evidence as to the dog’s peaceable character was competent evidence. In a dog bite case, “the gist of the action is the keeping of a vicious dog after knowledge of his vicious propensities.” Maxwell v. Fraze, Mo.App., 344 S.W.2d 262, l. c. 264(2), and cases therein cited. Defendant in this case was entitled to show the peaceable disposition of the dog for the consideration of the jury in contesting the issue of whether the dog had vicious propensities. Carrow v. Haney et ux., 203 Mo.App. 485, 219 S.W. 710, 712.

Plaintiff levels a number of objections at Instruction No. 4 given by the court at the request of the defendant. Said instruction reads as follows:

“The Court instructs the jury that under the Law of the State of Missouri, ; the owner of a dog is not liable for injuries caused by such dog unless the dog has vicious propensities and the owner knows of such dangerous propensities or by the exercise of ordinary care could and should have known of such vicious propensities.
“Therefore, the Court instructs you that unless you find from the evidence that the defendant’s dog, Pierre, possessed vicious propensities and unless you find that the defendant knew or in the exercise of ordinary care could and should have known of such vicious propensities of her dog, Pierre, then the Court instructs you that the defendant was not liable, and your verdict in this case must be in favor of the defendant and against the plaintiff.”

Plaintiff contends the instruction was misleading and confusing to the jury as the terms “vicious propensities” and “dangerous propensities”, having different meanings, were used interchangeably.

The terms “vicious propensities” and “dangerous propensities” have been used by the courts of Missouri for years in this type of case. Maxwell v. Fraze, supra; State ex rel. Kroger Co. v. Craig, Mo.App., 329 S.W.2d 804, l. c. 808, 809; Merritt v. Matchett, 135 Mo.App. 176, 115 S.W. 1066, 1069; Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, l. c. 670, 13 A.L.R. 485; Gallagher v. Kroger Grocery & Baking Co., Mo.App., 272 S.W. 1005, l. c. 1006. These terms generally have been defined as the tendency of a dog to injure persons, whether the dog acted out of anger, viciousness, or playfulness. Dansker v. Gelb, Mo.Sup., 352 S.W.2d 12. The words “vicious” and “dangerous” as used in this instruction both generally connote a quality of the dog which could or would cause harm to a person. We do not believe that the use of both of the words in this instruction confused the jury.

Plaintiff also claims this in■struction is erroneous because it is not supported by defendant’s evidence. Plaintiff argues that defendant’s evidence showed that defendant knew of the prior incident when the dog jumped on her own daughter, and therefore there was no evidence in the case that defendant did not know of the propensity of the dog to attack. This contention is not well taken. It is well established that when a defendant submits a true converse instruction, it is not necessary for the defendant to support the instruction by evidence. This rule was well stated in the recent case of Sutton v. Fox Missouri Theatre Co., Mo.Sup., 356 S.W.2d 41, l. c. 49, as follows:

“Concededly, when the defendant submits a true converse instruction, i. e., to the effect that unless the jury finds in favor of plaintiff each and every (or one or more) of the facts essential to his case, the verdict must be for defendant, it is not necessary that defendant support the instruction by evidence tending to disprove those facts. This, for the reason that the burden rests upon plaintiffs to prove every fact essential to his case before he is entitled to recover.”

The instruction in this case was a true converse of two of the essential facts of plaintiff's case, i. e., the dog had vicious propensities and that defendant had knowledge thereof.

Plaintiff further argues that the instruction undertook to cover the whole case and direct a verdict for defendant without hypothesizing all of the facts necessary for a recovery. Plaintiff’s complaint is that the Instruction No. 4 excluded the fact that defendant admitted knowledge of a prior incident when the dog jumped on her own daughter plus the additional fact that defendant allowed plaintiff to be with the dog and failed to warn plaintiff of the dog. This is a converse instruction and as such defendant may submit either a converse of each and every essential fact of plaintiff’s right to recover, or a converse of one or more of such essential elements. Sutton v. Fox Missouri Theatre Co., supra. Defendant was not required to submit a converse of all the necessary facts to plaintiff’s case. The cases cited by plaintiff are not in point in considering the essential requirements of a converse instruction.

Plaintiff’s last point with respect to Instruction No. 4 is that it required the jury to find facts which had been conceded both by counsel for defendant in the opening statement and by defendant’s own testimony, to-wit: a prior attack establishing a vicious propensity of the dog which was known by defendant. Plaintiff contends that it was error to require the jury to make a finding on the issue of knowledge of the defendant when such fact was admitted by defendant. The record does not disclose any admissions on defendant’s behalf of the ultimate facts to be determined by the jury, to-wit: the vicious or dangerous propensR ties of defendant’s dog and the defendant’s knowledge thereof. The incident of defendant’s daughter Susan stumbling over the dog resulting in the dog jumping up on her, was only evidence from which the jury could determine the ultimate fact of whether or not the dog had vicious propensities and that the defendant had knowledge thereof. It should also be noted that defendant’s evidence of the incident raises an issue of fact as to whether the act of the dog was as a result of provocation caused by the defendant’s daughter stumbling over the dog while chasing a ball. Provocation has a vital bearing on the question of whether an animal has vicious propensities as will be demonstrated in considering the plaintiff’s final contention of error.

Plaintiff’s last assignment of error is directed at Instruction No. 5 given by the Court at defendant’s request, which reads as follows:

“The Court instructs the jury that what is meant by the term ‘vicious propensity’ in an animal is such a propensity that the dog might attack or injure the safety of persons without being provoked so to do.”

Plaintiff asserts that this instruction does not correctly define the term “vicious propensities”, as it limits its application only to those situations where the attack by the animal was unprovoked. To this contention we cannot agree. “The mere fact that a dog has previously bitten some one does not necessarily mean that it is of a vicious character, as sudden pain or fright sometimes causes a dog to snap involuntarily. So evidence that vicious acts were done under provocation is not sufficient to establish a vicious disposition which would make the owner liable.” 3 C.J.S. Animals § 176 c, 1. c. 1280. In Merritt v. Matchett, supra, the court, in approving an instruction identical to Instruction No. 5, said, “A ‘vicious propensity’ is not confined to a disposition on the part of the dog to attack every person he might meet, but includes as well a natural fierceness or disposition to mischief as might occasionally lead him to attack human beings without provocation.”

Plaintiff also argues that Instruction No. 5 is inconsistent and in conflict with Instruction No. 6 offered by plaintiff and given by the Court. Instruction No. 6 reads as follows:

“The Court instructs the jury that by the term ‘vicious dog’ is not meant a mad dog but rather a dog that has a tendency to bite, whether in play or in anger.”

The gist of Instruction No. 6 was that viciousness was a tendency of dog to injure a person, whether motivated by anger or playfulness. Instruction No. S does nothing more than inform the jury that the tendency of the dog to injure a person must be without provocation. Provocation or the lack of it if raised by the evidence, as it was in this case, is a proper consideration in determining the issue as to whether a dog has vicious propensities. Merritt v. Matchett, supra. The instructions were not in conflict.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by SEMPLE, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the circuit court is accordingly affirmed.

ANDERSON, P. J., WOLFE, J., and JAMES D. CLEMENS, Special Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Frank FRIMEL, Successor to Golden Rule Realty Co., Inc., Plaintiff-Respondent, v. Joseph BLAKE and Margaret M. Blake, His Wife, and William J. Duba, Defendants-Appellants.
    No. 31021.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Charles M. Shaw, Clayton, for defendants-appellants.
    Thurman, Nixon & Blackwell, Jeremiah Nixon, Hillsboro, for plaintiff-respondent.
   SAMUEL E. SEMPLE, Special Commissioner.

This is an action brought by plaintiff, Frank Frimel, as successor to the Golden Rule Realty Co., Inc., to collect assessments for years 1957, 1958, 1959, and 1960 levied against certain lots purchased by defendants from plaintiff’s predecessor which said assessments were authorized under the provisions of a written contract of sale. The trial was before the court and resulted in judgments in favor of plaintiff and against defendants, from which defendants have duly taken an appeal to this court.

Plaintiff brought this lawsuit in a number of counts with each count directed against specific defendants. The appellants herein are defendants Joseph Blake and his wife, Margaret, named in Count I and defendant William J. Duba named in Count IV of the petition. The same affirmative defense -<yas pleaded and same evidence offered by defendants Blake and defendant Duba. Separate judgments were entered by the tidal court. Only one contention of error common to both defendants Blake and defendant Duba is raised here and by agreement the parties have consolidated the cases for the purpose of this appeal. For convenience reference hereafter to defendants will apply to defendants Blake and defendant Duba.

The defendants during the month of October, 1955, by written contracts purchased from plaintiff’s predecessor The Golden Rule Realty Co., Inc., certain lots in the Lake Lorraine Subdivision located in Jefferson County, Missouri. The provisions of the written contracts entered into by the parties and applicable to the contentions raised here were identical. The contracts in substance provided for the method and time for the payment of the purchase price and standard provisions for execution of a deed to the purchaser. In addition the contracts contained certain restrictions which were to govern the future use of the property by the purchasers.

The written contracts contained the following pertinent agreements and restrictions :

“Grantors further agree to maintain all improvements on this subdivision up to January 1, 1957, at their own sole charge and expense, and free and clear of all assessments for maintenance of said project, after which date the purchaser agrees to pay such assessments on the lot sold him as the grantors may in their discretion levy, not exceeding, however, 85^ per front foot, proceeds to be used -for maintenance and management of the lake and all of the properties which are of common benefit to property owners in said subdivision and for the necessary expense of the upkeep of said project.”

Restrictions:

“11. As part of the consideration for the sale of this lot Grantor shall have the right to assess the owner of this lot after January 1, 1957, and each succeeding January 1st thereafter such sum as Grantor shall deem necessary for the upkeep and maintenance of the dam, roads and other improvements, and management, provided, however, that no assessment for any one year shall exceed the sum of eighty-five cents (85{S) per front foot, on the first two tiers of lots and the same amount per lot, rather than front foot, for all other lots in the development, and provided further that the assessment as levied each year shall be and become a lien without filing of suit or legal procedure to establish such lien on said lot if not paid within thirty days after January 1st of the year in which the assessment is made.”

By stipulation of the parties it was agreed that the assessments as alleged in plaintiff’s petition against lots of defendants for the years 1957, 1958, 1959 and 1960 were made by plaintiff and that the amounts of the assessments were correct.

The defendants’ answers alleged as an affirmative defense that they were induced to enter the written contract on the representation that a lake was to be built, roads constructed and water and power lines brought in to the subdivision during the year 1956 and that no assessments were to be levied against the lots in the subdivision until these improvements were made. Defendants further alleged that the improvements were not completed by January, 1957, and had not been entirely completed prior to the time suit was filed.

Defendants offered evidence that at the time of negotiations for the purchase of the lots and shortly before the execution of the written contracts of sale one Mark L. Bowman, a salesman and agent of the Golden . Rule Realty Co., Inc., orally represented to them that improvements were to be made in the subdivision during the year 1956 consisting of building a dam, constructing roads and bringing in water and power lines and that there would be no assessments levied against the lots until these improvements were completed. This evidence was objected to by plaintiff on the ground that it violated the parole evidence rule and was received by the court subject to plaintiff’s objection and later rejected. Defendants also produced evidence that the dam, the roads and the utilities were not completed on January 1, 1957, and at the time of trial were not constructed as orally represented by the salesman prior to the execution of the written contract.

The sole question presented by this appeal is whether the parole evidence offered by defendants to show that no assessments were to be levied against defendants’ lots until certain improvements were completed in the subdivision was admissible as an exception to the parole evidence rule. Defendants argue that the oral representations made to defendants were offered to show the existence of a prior or contemporaneous collateral agreement which operated as an inducement to the defendants to enter into the written contract. Defendants cite the cases of Owsley v. Jackson, 163 Mo.App. 11, 144 S.W. 154; Scott v. Asbury, Mo.App., 198 S.W. 1131; Craig v. Koss Construction Co., Mo.App., 69 S.W.2d 964; Liemke Co. v. Krekeler Grocer Co., 231 Mo.App. 169, 95 S.W.2d 820.

It is true that there is an exception to the parole evidence rule which permits the admission of evidence of a separate prior or contemporaneous verbal agreement which is especially applicable where such agreement operates as an inducement to the complaining party to enter into a written agreement but there is a further requirement that the parole agreement must not be inconsistent or in conflict with the written agreement. The cases cited by defendant support this exception to the parole evidence rule, but in each of those cases the verbal agreement did not vary or contradict the written instrument involved.

The courts of this state in applying the parole evidence rule have uniformly held that where parties have entered into an unambiguous written agreement, their rights must be controlled thereby and in the absence of fraud, duress, mistake or mental incapacity all evidence of prior or contemporaneous oral agreements on the same subject matter varying, modifying or contradicting the written agreement is inadmissible. Giraldin Bros. Real Estate Co. v. Stiansen, Mo.App., 315 S.W.2d 636, 640; Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817; Francis v. Saleeby, Mo.App., 282 S.W.2d 167, 169.

In the instant case defendants have not raised any question of fraud or any other circumstances which would void the contract. The provisions of the written contract here are clear and unambiguous as to (1) the right to levy assessments by plaintiff and his predecessor; (2) the time that said assessments were to be made and to become effective, and (3) the agreement of defendants to pay the assessments when they were so levied. The written contract does not require the construction and completion of a dam, roads or utility facilities during the year 1956 and is clear as to the right to levy assessments annually beginning with the year 1957. To permit defendants by parole evidence to attempt to prove an agreement that assessments were not to be levied by plaintiff or his predecessor or paid by defendants until certain improvements were completed in the subdivision would not be consistent with the written agreement and would have the effect of varying or modifying said -written contract. We therefore conclude that said parole evidence was not admissible.

The judgments of the trial court are affirmed.

PER CURIAM.

The foregoing opinion by SEMPLE, Special Commissioner, is adopted as the opinion of the court.

Accordingly, judgments are affirmed.

ANDERSON, P. J., WOLFE, J., and JAMES D. CLEMENS, Special Judge, concur.


author: BRADY, Commissioner.

text:
    Earl KAGAN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Appellant.
    No. 30829.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Donald L. Schmidt, St. Louis, William M. Corrigan, St. Louis, of counsel, for appellant.
    Orville Richardson, Louis Gilden, Hull-verson, Richardson & Hullverson, St. Louis, Corinne Richardson, St. Louis, of counsel, for respondent.
   BRADY, Commissioner.

This is an action for damages arising out of personal injuries the respondent allegedly sustained when his automobile was struck from the rear by defendant’s streetcar. Trial terminated in a jury verdict in favor of respondent in the amount of $4,-000.00. The trial court overruled appellant’s timely after trial motions and it has perfected this appeal. This is the second appearance of this case before this court, the first trial resulting in a $3,500.00 verdict for the respondent. Upon appeal from that judgment, this court reversed the judgment and remanded the cause, Kagan v. St. Louis Public Service Company, Mo.App., 334 S.W.2d 379.

The essential facts of the occurrence are stated in the earlier opinion in this case and, since in this trial the respondent received the jury verdict and also because the appellant contends the trial court erred in denying its motions for a directed verdict, the evidence will be reviewed in the light most favorable to the respondent, giving him the benefit of all reasonable inferences to be drawn therefrom and confining ourselves to the issues submitted, Thaller v. Skinner & Kennedy Company, Mo.App., 307 S.W.2d 734, transf. Mo., 315 S.W.2d 124; La Tour v. Pevely Dairy Company, Mo.App., 349 S.W.2d 436. Those facts, as amplified by the testimony given at this trial, are that the respondent, driving eastwardly on Olive Street in the City of St. Louis, stopped at a traffic signal at the intersection of Olive Street and Compton Avenue. Respondent had been stopped there for fifteen or twenty seconds when the streetcar hit his automobile from the rear. The force of the impact sent respondent’s automobile forward so that the front end of it was about halfway into Compton. The streetcar came to a stop where his car had been. The impact damaged the trunk lid of his car, “crashed in” the trunk, and the bumper was “pushed in a little.” The license plate and trunk lid hasp were pushed in “somewhere between two and four inches.” At the scene a Mr. Christie came up to respondent and identified himself. The balance of his testimony on direct and on cross-examination dealt with his injuries, visits to various doctors, and other similar matters which will be discussed in connection with the appellant’s allegations of error dealing with the ex-cessiveness of the verdict and the giving of the measure of damage instruction.

The eyewitness, Mr. Christie, testified that on the date and at the time of the occurrence in evidence he was on his way to the downtown office of his employer, the National Cash Register Company, and was awaiting public transportation facilities at the Olive Street and Compton intersection; that he was standing in the safety zone awaiting the arrival of the eastbound streetcar and was about three feet to the rear of the respondent’s car which was stopped on the tracks; that “ * * * About the time the car would be approaching the left end of the safety zone, I heard quite a sound and noticed that the streetcar, coming at apparently a normal rate of speed, on entering the zone was making a clamoring sound, the bell was ringing, and it seemed to me there was a lot of metal clanging. What the noise was, I can’t say; it was unusual. Realizing that the car could not possibly stop until contact was made with the parked car, I immediately tried to get as far as possible away from the automobile.” The witness further testified that the impact pushed the car forward to the center of the intersection, that the streetcar’s speed did not decrease before the impact; that when he looked toward the streetcar he “ * * * noticed that, from the appearance of the motorman’s face, or the operator of the car’s face, that he was doing everything humanly possible to stop the car.” This concluded the respondent’s evidence concerning the happening of the collision.

The appellant’s evidence concerning the happening of the collision was given by one Anthony Hollerbach, who testified he was superintendent of railway maintenance for the appellant and has been engaged in this general field for thirty-nine years; that there is a difference in the braking of automobiles when compared to streetcars which he attributed to the fact that steel wheels on steel rails do not have the “road adhesion” that auto tires have to a road; that streetcars will occasionally slide on rails even with their brakes applied due to leaves being on the rails, “rail sweat” caused by changes in temperature, or oil and grease droppings on the rails; and that an operator of a streetcar has an eye level five to six feet above the level of the street and cannot normally see whether or not there is oil or grease on the tracks. On cross-examination this witness testified that because streetcars are harder to stop, one has to “start stopping them sooner” and pay more attention to what he is doing.

Mr. Fred H. Kassel, testified for the appellant that he was a process server and was employed by the appellant to serve a subpoena on one Conrad Schleuter, the operator of the streetcar, and that appellant gave him an address of 5598 Waterman. His testimony of his efforts to find Schleu-ter is as follows: ¡

“ * * * When I went to that address and checked the mailboxes, there was no Conrad Schleuter listed there, but alongside of the mailbox there was a ’phone number to call in case of renting the apartment. So, when I checked the apartment before I left, there was no answer. When I returned to my office I called the ’phone number and talked to the woman who answered, and she had no recollection of any Mr. Conrad Schleuter living at that address.
“Then I consulted the City Directory and found an address at 5011½ Lotus. I went to that address, I think the following day, and found no Mr. Schleu-ter at that address and could get no information of anyone by that name living there.
“Then from the Public Service Company I received information to try the Windemere Hotel which is located on Clara and Delmar. On going out there one evening, I talked to the man behind the desk, the clerk, and he checked their records and found that Mr. Schleuter had been there January 29, 1960, for approximately two weeks, which would bring it up into February sometime, and he had left there and there was no forwarding address. And this was as far as I could go on it.”

On cross-examination, Kassel testified that he had been serving subpoenas since “about 1935”; that he does all of that type of work for the appellant; that he was not told how long Schleuter had worked for the company, neither was he given access to the employment records of the company, nor was he told the social security number of this person, nor whether or not he belonged to a union; that he did not use any of the private firms who locate people in the City of St. Louis although he knew of the existence of such' firms; that when he went to the Waterman address he found it was an apartment house; that he did not ask anyone who lived there where Schleu-ter was; that when he talked to the manager he did not ask how long she had been manager, or who the owner of the building was, or who collected the rent for the apartments; that the Lotus address came from a 1959 City Directory published by Polk Directory; that he did not contact the Polk firm to see if they had a current address on Schleuter; that this address has apartments above street level stores; that he did not ask any of the people there whether they knew Schleuter; that he did not try to find the owner of the building on Lotus to ascertain if that person had any addresses of former residents; that he made no attempt to contact other people named Schleuter to determine if they, were related to this man; that he received the subpoena on the 6th or 7th of October; that it provided for Schleuter’s appearance on October 17th; that he did not make any return on the subpoena; that the subpoena he was given was not issued by the Clerk of the Circuit Court but by a notary public; that he did not have the subpoena, having “probably” destroyed it, and so did not file it in the records in the case.

At the conclusion of the testimony by this witness, appellant’s counsel stated, “ * * * I would like to read the testimony of Conrad Schleuter which was given under oath in a trial of this lawsuit which began on February 19, 1959.” Respondent’s counsel objected, out of the hearing of the jury, on the ground that “due diligence” had not been shown. The trial court sustained the objection. Following a recess, the appellant offered the witness Goeglein who testified that he was superintendent of employment for appellant; that Conrad Schleuter had been an employee of appellant, beginning work on October 1, 1951 and ending on March 24, 1960; and that he gave his address as the Windemere Hotel. Again out of the hearing of the jury, the following occurred:

“MR. SCHMIDT: At this time, Your Honor, I again renew the fact that I do wish to read into evidence the testimony of Mr. Conrad Schleu-ter given at the first trial of this case. We have made every effort to locate this man. We have checked his last known address and all the Public Service Company’s records and we have every right to read his testimony into evidence. The man was cross-examined at the time of his last testimony. I would also point to the transcript that, at that time, his address was given as 5598 Waterman. We have made effort to check these addresses, as the testimony of Mr. Kassel indicated, and we feel that the testimony of Mr. Schleuter is rélevant and material to this lawsuit.
“MR. RICHARDSON: I object to the reading of it for the reasons heretofore stated. It is hearsay and no proper foundation has been laid for the introduction of the testimony..
“MR. SCHMIDT: Well, Your Hon- or, as to being hearsay, it was taken before a court of law, the man was sworn, he was questioned in this court after being sworn, the plaintiff was given an opportunity to cross-examine him, which could be the only objection plaintiff could have, that he was not given this opportunity.
“THE COURT: I sustain the objection to it.
“MR. SCHMIDT: Judge, at this time I also, in the same line, would submit the reading of the deposition.
“MR. RICHARDSON: Same objection; as hearsay, no foundation.
“MR. SCHMIDT: Let the record show that I ask that the transcript be made a part of my offer of proof and that the testimony of Mr. Schleuter,. given in the trial in the Circuit Court of the City of St. Louis, Division No. 5, be made as my offer of proof and the cross-examination of that testimony also.”

The testimony Schleuter gave at the first trial appears in this transcript as a part of appellant’s offer of proof. Respondent’s counsel then took the stand and stated:

“At ten minutes to one today, I decided to try to locate Mr. Schleuter. I suspected he might be divorced and ’phoned the court here and found that there was a divorce suit — ”

An objection to the telephone conversation followed and was sustained, following which a long discussion between court and counsel ensued out of the hearing of the jury, during the course of which respondent’s counsel informed the court that he had found Schleuter within thirty minutes by using the telephone and offered to testify as to where Schleuter was, at 5628 En-right in the City of St. Louis, and just what counsel had done to locate him. The trial court pointed out to counsel that all the information he could give was obtained by telephone, and respondent’s counsel then answered he would withdraw his testimony and made such announcement, at the trial court’s suggestion, before the jury. Appellant’s counsel then moved for a mistrial, which was denied, but' the court granted appellant’s request to instruct the jury to disregard “ * * * any statements or comments that may have been made in rebuttal by Mr. Richardson.”

The appellant contends that the giving of respondent’s verdict directing Instruction No. 1 and Instruction No. 6 on the measure of damages constituted error. The instructions read as follows:

“INSTRUCTION NO. 1:
“The Court instructs the jury that if you find from the evidence that Mr. Kagan brought his automobile to a stop at Compton in obedience to a red electric stop-light signal which was then displayed, and if you further find that the defendant St. Louis Public Service Company suffered and permitted its streetcar to strike and collide with the rear end of Mr. Kagan’s automobile after it had been stopped for ten seconds or more, and that in so doing the defendant failed to exercise ordinary care and was negligent, and that Mr. Kagan was injured as a direct result thereof, then and in that event Mr. Kagan is entitled to recover, and your verdict should be in his favor.”
“INSTRUCTION NO. 6
“The Court instructs the jury that if you find your verdict in favor of Mr. Kagan, then it will be your duty to assess his damages in such sum of money as you find from the evidence will fully, fairly and reasonably compensate him for such injuries and their consequences as you find from the evidence that Mr. Kagan has suffered in the past and is reasonably certain to suffer in the future as a direct result of the collision mentioned in evidence.
“In assessing such damages, if any, you may take into consideration first, the nature, character, extent and permanency, if any, of such injuries, second, any condition of Mr. Kagan’s duodenum which you find from the evidence that such collision, injuries and their treatment directly contributed to bring about, third, such pain and suffering of body and mind as you find from the evidence that Mr. Kagan has suffered in the past and is reasonably certain to suffer in the future as a direct result of such injuries and their consequences, if any, and fourth, the reasonable value of such medical care as you find from the evidence was reasonably necessary in the treatment and care of such injuries and their consequences, if any.”

In contending that its motion for a directed verdict should have been sustained, the appellant first urges that the submission made was on a theory not pleaded. The submission of Instruction No. 1 was that the appellant “ * * * suffered and permitted its streetcar to strike and collide with the rear end of * * * ” respondent’s automobile. The respondent’s petition alleged that on the occasion in evidence appellant’s “ * * * streetcar, traveling in an east-wardly direction on Olive Street, violently collided with the rear of said plaintiff’s automobile.” Among the eight allegations of negligence were,

“b. That the defendant, while operating its said vehicle as aforesaid, failed to have the same under such control that it could be stopped readily and reasonably upon the appearance of danger.
******
“e. That the defendant while operating its said vehicle as aforesaid, negligently and carelessly failed and omitted to stop the same before colliding with the other vehicle as aforesaid, and negligently overtook and struck plaintiff’s automobile from the rear.”

The appellant’s contentions in this regard have no merit. The allegation that the streetcar violently collided with the rear of respondent’s automobile is, in effect, the same as the allegation in the petition approved in State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, l. c. 71 [4, 5.] See also Vinson v. East Texas Motor Freight Lines, Mo., 280 S.W.2d 124, l. c. [7], p. 133, where, as in the case at bar, the evidence tending to show the rear end collision went into evidence without objection. There is no claim of surprise. The same issues of law and fact were here involved as were at the first trial.

Appellant also contends there was no substantial evidence to support the submission made. There can be no doubt but that respondent made a prima facie case under the rear end doctrine, Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360 at [3], p. 362. Appellant’s argument is that the word “suffer” means “ * * * to allow or permit” and cites Webster’s Unabridged Dictionary to that effect. Appellant further urges that “permit” implies knowledge and consent. The result, under appellant’s reasoning, is that to allege one “suffered or permitted” something to take place charges misfeasance or affirmative wrongdoing. The appellant then argues that, quoting from its brief, “All the evidence in the case at bar indicates that the defendant was doing everything humanly possible to avoid the collision” and therefore could not have been allowing or permitting the collision to occur. The appellant relies upon and cites the witness Christie’s testimony to support its statement as to what all of the evidence shows, but that was not what Christie testified to. That witness testified that the streetcar approached at undiminished speed even though it is not disputed the respondent’s automobile was stopped in plain view directly ahead of the streetcar and that from the look on the motorman’s face it appeared to the witness that he was doing everything possible to avoid the collision. Moreover, the appellant’s own expert witness testified that because streetcars are more difficult to bring to a stop than are automobiles it is necessary to start stopping them sooner and to pay more attention than one would with an automobile. Disregarding for the moment (for the purpose of illustration only) the fact that Christie’s actual testimony is not subject to the construction appellant places on it and was only as to what appeared to him to be the case, the jury was justified in drawing the conclusion that despite any last minute efforts the operator was negligent. The streetcar may have had bad brakes of which the operator was aware long before this accident. The operator may not have been paying that extra degree of attention, or have failed to begin the stopping process soon enough. Having made a prima facie case, it was not incumbent upon the respondent to show why the collision occurred.

Instructions containing the words "permitted” or “allowed” or their equivalents have been repeatedly used in instructions submitting the “rear end collision” doctrine. See Hughes v. St. Louis Public Service Co., supra; McVey v. St. Louis Public Service Co., Mo., 336 S.W.2d 524; Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, also Mo.App., 170 S.W.2d 153; State ex rel. Spears v. McCullen, supra; Millard v. St. Louis Public Service Co., Mo.App., 330 S.W.2d 147. Appellant contends that the Millard case, cited above, criticizes the use of the word, “permit.” This is not the holding of that case which in fact ruled the contention that as the instruction there involved was worded, it was possibly subject to the construction that it assumed a disputed fact. In Millard, 330 S.W.2d 147, this court held that under the facts and other instructions offered in that case,the jury could nqt have been misled, and that is even more true in the instant case.

The appellant also attacks the giving of the instruction on the ground that it «* * * submitted a charge of negligence which was outside the scope of the pleadings and thereby erroneously injected a foreign issue into the lawsuit.” It argues that since none of the allegations of negligence in the petition charged it with “suffering and permitting” the collision, the submission is outside of the scope of the pleadings. The purpose of the petition is to inform the defendant of the nature of the action and advise him of what he must defend against, Missouri Digest, Pleading, ^3814. The petition in this case met that test. The first trial of this case, on the same petition, certainly apprised appellant of respondent’s reliance upon the “rear end collision doctrine” and thus it cannot be said to be, under these facts and pleadings, a “foreign issue.” Moreover, appellant fails to state how it would have proceeded otherwise than it did, had the “foreign issue” not been injected. In fact, under the evidence here present it is difficult to see how it could have proceeded any differently so far as its theory is concerned.

Appellant also urges that the instruction “ * * * should have hypothesized in which direction plaintiff’s automobile was traveling and that defendant’s streetcar was traveling behind him in the same direction and that defendant’s streetcar overtook and struck plaintiff’s automobile” and that the failure to so hypothesize constitutes prejudicial error. But there was no dispute as to these facts. Appellant’s own photograph showed rear end damage to respondent’s automobile. During his argument appellant’s counsel stated that appellant was not denying that the streetcar struck the back of the automobile. In view of all of this, and keeping clearly in mind the factual situation as shown by the undisputed evidence, it is clear that the elements which appellant contends should have been hypothesized were in fact undisputed and therefore need not have been hypothesized. It follows from the above that the trial court did not err in giving Instruction No. 1 nor in its ruling upon the appellant’s motion for a directed verdict.

The appellant contends that the trial court prejudicially abused its discretion by sustaining respondent’s objection to the reading of the testimony the motorman Schleuter gave at the first trial. The appellant also assigns as error the trial court’s same ruling as to the deposition Schleuter gave prior to the first trial. However, no offer of proof was made as to the deposition and it is not included in the transcript. The objection to reading the prior testimony was made on the ground that appellant failed to use due diligence in obtaining service. Civil Rule 57.29, V.A.M.R., is the same as Section 492.400 RSMo 1959, V.A. M.S., as amended, Laws of Missouri 1959, Senate Bill No. 116. Section 1, Paragraph 2, subsection (6) thereof provides for the reading of depositions,

“If the witness is absent without the consent, connivance or collusion of the party requiring his testimony and the party, in the exercise of due diligence, has been unable to procure the attendance of the deponent by subpoena.”

Section 492.410 RSMo 1959, V.A.M.S., has been construed to provide that competent testimony of a witness preserved in a transcript of the record in a cause may be used in the same manner and with like effect as' if such testimony had been preserved in a deposition in the cause, Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802. In Welp v. Bogy, 218 Mo.App. 414, 277 S.W. 600 at [5-7], p. 604, this court held that

“It is manifest that no definite rule can be laid down as to what would constitute a. showing of due diligence in all cases.”

See also Welp v. Bogy, 320 Mo. 672, 8 S.W.2d 599 at [10-11], p. 601. Appellant, by its very statement of its contention, recognizes that the determination of whether such testimony or deposition should be admitted lies within the trial court’s discretion in determining if an adequate foundation of the showing of due diligence has been made. It follows that absent an abuse -of that discretion, the trial court’s ruling will not be disturbed by us, Collins v. Leahy, 344 Mo. 250, 125 S.W.2d 874 at [1-6] pp. 879-881; see also Collins v. Leahy, 347 Mo. 133, 146 S.W.2d 609; Taylor v. Laderman, 349 Mo. 415, 161 S.W.2d 253 at [6-7] p. 256.

The appellant cites and relies upon Welp v. Bogy, supra. It is true that at page 604 of 277 S.W. 600, the opinion in that case states that “The authorities seem -to hold ⅜ * * ” that what was here done would satisfy the requirements of due diligence, but a more careful reading will disclose that the court’s discussion of the point was in fact obiter dictum and that the court’s actual ruling of the point was on the contention that the testimony had not been preserved in the bill of exceptions. We think this case illustrative of wisdom of the application of the rale of deference in such matters. We do not find the trial court’s discretion to have been so abused as to require our interference. The point is ruled adversely to the appellant.

The appellant first urges that the giving of Instruction No. 6 was prejudi-cially erroneous because it authorizes a recovery for permanent injury when, according to appellant’s brief, “* * * there was no substantial evidence to support such a finding.” This contention requires only a brief review of the medical testimony. The respondent’s complaints of injury were as to a cervical sprain, a lumbosacral sprain, a head injury resulting in headaches, and a nervous reaction contributing to cause a duodenal ulcer and a twitching near his eye. The transcript discloses the following questions and answers of and by his treating doctor:

“Q Then, it is your opinion that, if this ulcer heals up without perforation or operation, that he will, in your opinion, have a permanent condition by virtue of formation of scar tissue, and with increased susceptibility of a recurrence of the duodenal ulcer?
“A Yes, I believe he will.
“Q This condition has gone on for two years, Doctor. Let’s say that he has had some improvement in his neck. The back, he has testified, is in about the same condition. I will ask you to tell the Court and jury whether or not, in your opinion, he will have some permanent injury to his neck" and his back as a result of this occurrence.
“A Oh, I think he will have some permanent effect.”

Appellant urges that the last answer is not responsive to the question and that it “ * * * is less than substantial evidence of permanent injury.” So far as this transcript discloses, there was no objection upon the ground of unresponsiveness nor any objection at all. That the witness used the words “permanent effect” instead of “permanent injury” in his answer does not constitute such unresponsiveness as to warrant a reversal. Neither does the use of the word “effect” instead of “injury” so diminish the probative force of the answer that it can be said to fail to constitute substantial evidence of permanency to support the giving of Instruction No. 6.

According to appellant’s allegations, the instruction is erroneous for the further reason that it permitted the jury to consider any condition of the duodenum which they might find from the evidence the collision contributed to bring about. Appellant contends the evidence was “ * * * insufficient to show a causal connection between plaintiff’s ulcer and the accident” and urges that “This testimony as to the causal connection between the accident and the many other factors and the duodenal ulcer does not go beyond an expert opinion that there might or could be a connection between the ulcer and all of the other conditions set forth in the question.”

But the transcript, viewed in the light we are required to take of it, discloses otherwise. The treating physician was asked a hypothetical question concerning causation, which question, after incorporation into it of certain additional facts requested by the appellant, was not objected to, and to which the doctor answered,

“A My answer would be that the conditions you described, I believe •would be a definite precipitating cause or contributing cause to the occurrence of the ulcer in Mr. Kagan. This, plus the administration of cortisone on my part, plus aspirin and other drugs for treatment of his neck and painful neck and back.” (Emphasis supplied.)

Dr. Lam was also asked the same hypothetical question, again without objection by the appellant after respondent’s counsel incorporated in the question certain additional facts which appellant suggested. His answer was a flat “Yes.” Both witnesses gave reasons for and explanation of their answers. This testimony was not conjectural or speculative but, to the contrary, was, when read in context as set out above, a definite, certain answer. Moreover, the appellant’s own medical witness cured any supposed deficiency by his testimony. It was his opinion that the ulcer was caused by the cortisone prescribed for the respondent’s neck and back injuries and he testified that if the cortisone was so prescribed, and that is undisputed in this record, then he would have to say that the accident caused the ulcer. The whole effect of his testimony on this point is that the treatment of the other injuries which respondent contended he received in this accident, i. e., the cortisone prescribed for the neck and back injuries and pain, directly contributed to bring about the condition of the respondent’s duodenum. This was what the instruction submitted. There was no prejudicial error in the giving of Instruction No. 6.,

The final contention is that the verdict was excessive. In considering this point we will review the evidence in the light most favorable to the respondent. See Rossommano v. Quality Dairy Co., Mo.App., 297 S.W.2d 591 at 593[2]; Missouri Digest, Appeal and Error, ^932(1), 989. The respondent was 34 years of age at the date of trial, October 18, 1960. At the time of the accident he was between jobs and was going to work as a drug salesman after completion of a two-week tour of active military duty. Respondent testified he was moved backwards and forwards by the impact and his head either hit his hand on the steering wheel or the wheel itself; that on the way to his home after the accident his stomach became upset and he vomited; that while he was home he didn’t feel like eating, his stomach being upset and his back, neck and shoulders were getting stiff; the next day he went to see Dr. Rosecan, having arranged for the troop convoy going to camp to leave without him; Dr. Rosecan had X-rays taken and prescribed medication which the respondent used while at camp; that while there he was in “some pain” and went to see his regimental surgeon who also prescribed medicine which he took, and that he was able to attend to his duties as operational officer. Respondent further testified that upon his return he began his new employment and continued to see Dr. Rose-can who recommended a gastro-intestinal series of tests and placed him on a bland diet and rest; that Dr. Rosecan sent him to Dr. Lam for consultation, that Dr. Lam, among other things, recommended a collar for neck support which the respondent never wore because he felt it affected his business; that he does wear a lower back support; that pain in his back and abdominal distress prevented him from driving long distances and as a result he could not cover his assigned territory; that his neck movement was restricted to a great degree and he had pain whenever he turned his neck; that his neck has improved some; that support and heat has also improved his back but he still has pain when driving and when he is not doing anything so that there is very seldom a day that he does not have some pain or “trouble” in his lower back; that his stomach. pain, which he described as a “gnawing, sometimes burning” sensation, is controlled now at a constant level although sometimes it flares up worse than at other times;. and that he never had this trouble before the accident. The respondent was involved in a collision in 1957 in which his neck, left shoulder and upper back were injured and made a claim for these injuries but had experienced no trouble since that time. He did not lose any wages from his first employer after the accident, being paid a straight salary, but at the time of trial he -was being paid on a commission basis and testified that his pain and other discomfort resulted in a limitation of the work required of him and thus of his income.

Dr. Rosecan testified that on the first visit the respondent held his neck rigid and had tenderness over the base of the sixth and seventh cervical vertebrae with some muscle spasm which was painful and that the respondent was unable to flex his neck and was limited in its turning also. Respondent also had a large bruise and swollen area over the right forehead and tenderness over the lumbosacral joint with some limitation of extension and flexion. Dr. Rosecan further testified that respondent related that he vomited atid was dizzy after the accident; that his diagnosis then was a sprain of the cervical and lumbosacral spine, a head injury, and post-traumatic headaches, and recommended medication of Sigmagen, a cortisone drug used to relieve muscle spasm, codeine, use of a bed-board, massage of the areas of pain and muscle spasm, and heat treatments; that he next saw the respondent one month later when he also complained of stomach trouble; that he then put respondent on an “ulcer diet” with “antacids” and obtained an upper G-I Series; and that respondent was referred to Dr. Lam for examination and consultation regarding his back and neck. It was the opinion of this witness that the X-Ray G-I Series showed the respondent had a duodenal ulcer, and that this diagnosis was compatible with respondent’s complaints. In addition to the “ulcer diet” the doctor prescribed Amphojel and Maalox to neutralize acid, an “antispasmodic group of drugs which are designed to cut down on some of the nervous impulses to the stomach * * advised sleep and relaxation with an avoidance of an excessive number of work hours, and took respondent off of cortisone. The doctor saw respondent twelve times and the last time he saw him about a month before trial respondent was complaining of continued indigestion, had recently had a severe flareup of his ulcer, still had pain in the neck and lower back area which became worse on any bending or lifting, had tenderness in the upper portion of the stomach, and still had tenderness with muscle spasm in the neck and back. The witness testified that his charges to date of trial were $275.00 to $300.00 and that these were reasonable charges.

Dr. Lam testified that he specializes in diseases of the brain and nervous system; that he first examined respondent on September IS, 1958, and found intermittent twitching of the left eyelid, 25% restriction of neck motion “ * * * particularly on left lateral rotation or twisting of the neck to the left, extension of the neck — that is placing the neck backwards — and tenderness in those areas. There was a posterior cervical muscle spasm. * * * ” He recommended conservative treatment such as rest, restriction of motion, local heat, and use of a Thomas Collar.

It is well recognized that in determining the excessiveness of a verdict each case must stand upon its own facts. However, due regard is to be given to approved awards in other cases, Kulengowski v. Withington, Mo.App., 222 S.W.2d 579. Appellant does not cite any cases involving similar injuries as here upon which it. might urge that this verdict violates the “approximate uniformity” discussed by the court in the Kulengowski case. As stated in Rossommano v. Quality Dairy Company, Mo.App., 297 S.W.2d 591, at l. c. 594,

* * * This court can only interfere where excessiveness appears as a matter of law; that is, when the verdict is clearly for an amount in excess of the very most that the proof of damages would reasonably sustain, and then only when the judgment is excessive to the degree that it shocks the conscience of the court. Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Biener v. St. Louis Public Service Co., Mo.App., 160 S.W.2d 780; Montana v. Nenert, Mo.App., 226 S.W.2d 394.”

We find no merit in appellant’s contention of excessiveness.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is therefore affirmed.

ANDERSON, P. J., and WOLFE, J., concur.

RUDDY, J., not sitting.


text:
    Ruth Richmond NEWCOMBE, Plaintiff-Respondent, v. Judson FARMER, Grace McNabb, Administratrix of the Estate of Effie Richmond Farmer, Deceased, and Bank of Belgrade, a corporation, Defendants, Grace McNabb, Administratrix of the Estate of Effie Richmond Farmer, Deceased, Defendant-Appellant.
    No. 30811.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellant.
    Frank May, Robert A. Mcllrath, Flat River, for respondent.
   BRADY, Commissioner.

The issues involved in this appeal arise out of a dispute as to the ownership of a bank account in the sum of $3,385.37, claimed by the administratrix to belong to the estate of Effie Richmond Farmer, and by her daughter, the plaintiff in the trial court, to belong to her. The jury found the issue in favor of the daughter, respondent here, and awarded her the full fund. Upon her timely after trial motions being overruled, the administratrix has perfected this appeal and will hereinafter be referred to as the appellant.

The respondent’s amended petition alleged that on the 4th of February, 1953, the respondent and her husband purchased from her mother a tract of land in Washington County, Missouri, in which the mother reserved a life estate; that the respondent and her husband assumed a deed of trust on that property in the amount of $2,500.00; that on December 4, 1958 “ * * * the plaintiff and her husband sold said property * * *» for $3,500.00 and directed the mother to receive this amount and to “* * * place the same in a joint account with right of survivorship in the Bank of Belgrade to be in the name of Effie Richmond and Ruth L. Newcombe ⅝ :⅝ * a . that the mother did receive the money but, contrary to the directions given her by the Newcombes, placed the money in the bank in her own name; that the respondent’s mother married Judson Farmer in 1955; that the mother died on April 23, 1959, then having $3,385.37 “ * * * of the money belonging to your petitioner * * * » jn the Bank 0f Belgrade in her own name; that this money is claimed by the administratrix as part of the estate and the bank therefore refuses to pay it to the respondent; that this money does not belong to the estate but does belong to the respondent. The petition prayed a judgment “ * * * declaring that said money above mentioned that is now in the Bank of Belgrade is the sole property of the Plaintiff herein and that Judson Farmer and Grace McNabb, as Administratrix, of the Estate of Effie Richmond Farmer, has no title or interest in and to the same and that the Bank of Belgrade be directed to pay all of said money to the Plaintiff herein.”

Appellant’s answer, insofar as the matters essential to this appeal are concerned, admitted that the money remained on deposit in the Bank of Belgrade in the name of Effie Richmond Farmer, denied that it belonged to plaintiff, denied that plaintiff and her husband directed Effie Richmond Farmer to receive the money and place the same in a joint account, admitted the death of Effie Richmond Farmer, and the amount remaining on deposit at that time, and admitted that defendant Grace McNabb as administratrix claimed to be entitled to said funds.

The appellant contends that the respondent failed to make a submissible case because there was no evidence of any agreement to deposit this money in a joint account with the right of survivorship and therefore the trial court reversibly erred in overruling appellant’s motions for a directed verdict. Secondly, appellant contends that the trial court reversibly erred in permitting the respondent to testify at all. In this regard it is the appellant’s position that respondent was barred from testifying because of the Dead Man’s Statute. The third allegation of error deals with the trial court’s action in permitting respondent to testify that Judson Farmer had filed a claim for allowances, that respondent had paid her mother’s funeral and medical expenses, and that respondent and her mother had previously maintained a joint account in another bank. The appellant also assigns as reversible error the trial court’s action in giving and reading to the jury Instruction No. 1, contending that there was no evidence to support the submission of such an instruction. The last allegation of reversible error deals with the trial court’s action in refusing to permit appellant’s counsel to argue to the jury that an inference unfavorable to respondent should be drawn from the failure of respondent’s husband to testify since he was also a party to the transaction out of which this fund arose. Under our disposition of this appeal, we will rule only upon the contentions of appellant with regard to the lack of a submissible case and, because the matter is closely connected thereto, the giving of respondent’s verdict — directing Instruction No. 1. For that reason, the evidence has been summarized without noting the repeated and energetic objections by appellant’s counsel.

Instruction No. 1 reads:

“The Court instructs the jury that if you find and believe from the evidence that Ruth Richmond Newcombe and her husband, Paul Newcombe, signed and delivered a Deed to Effie Richmond Farmer, deceased, selling real estate mentioned in the evidence and if you further find that Effie Richmond Farmer received $3,500.00 for said property that was sold and if you further find and believe from the evidence that at the time Ruth Richmond New-combe and Paul Newcombe delivered the Deed to Effie Richmond Farmer, it was agreed by all parties thereto that the money for said property was to be placed in the Bank of Belgrade, a Corporation, with Effie Richmond Farmer and Ruth Richmond Newcombe as joint tenants with right of survivorship, then, so finding your verdict will be for the Plaintiff.”

It should be pointed out that Instruction No. 2 hypothesized that if no agreement to deposit the money in the joint names with right of survivorship was found, then the verdict should be for the appellant. It is obvious that the jury found an agreement. The only other instruction given was a burden of proof instruction.

The evidence was that Effie Richmond, the respondent’s mother, was, after her husband’s death, the sole owner of some real estate in Washington County, Missouri. On February 4, 1953, while a feme sole, by “general warranty deed”, admitted into evidence, Mrs. Richmond conveyed one-half interest in this property to “Ruth L. Newcombe or Paul E. Newcombe” but reserved a life estate to herself. The New-combes assumed a deed of trust in the amount of $2,500.00 on the farm. Mrs. Richmond married Judson Farmer in 1955. On December 4, 1958, by warranty deed admitted into evidence, Judson Farmer, Effie Richmond Farmer, Paul E. New-combe and Ruth L. Newcombe conveyed this same property, a farm, to one Cruse Shelton and Oda Mae Shelton, his wife, in consideration of $3,500.00. The respondent testified that this deed was sent to her by her mother for her and Paul Newcombe to sign; that her mother secured the buyers, the Sheltons; that her mother received the payment for the property; that her mother died in April of 1959; and that her mother had a bank account at the Bank of Belgrade, and at the time of her death there was approximately $3,-400.00 or $3,300.00 in it. The respondent further testified that she, her husband and her mother also owned two lots in Belgrade which were conveyed to them on April 3, 1959, by the deceased’s sister, Mattie Turner; that her mother had a well drilled on these lots before her death; that her mother paid for the lots and the well by check; that on July 10, 1957, after her mother’s marriage to Mr. Farmer, she and her mother opened an account in the amount of $500.00 with the Ozarks Federal Savings and Loan Association of Farming-ton, Missouri; that said account read “Effie Farmer and Ruth L. Newcombe as Joint Tenants with right of survivorship and not as Tenants in Common;” and that she paid her mother’s funeral expenses from this account; that she paid her mother’s “doctor bills”; and that she and her mother once had a joint account payable to either or the survivor at the Washington County Commercial Bank.

Mattie Turner testified that the deceased was her sister and the respondent her niece; that “Effie” had discussed the sale of the property to the Sheltons with her and had told the witness “ * * * she wanted the money to go into the property on the lots for Ruth and Paul”; “ * * * the proceeds from the sale of the property was to be put into a home in Belgrade deeded to Paul and Ruth and Paul Newcombe”; that Effie told her “ * * * the $3500.00 on deposit in the Belgrade Bank, to be used for Ruth and Paul * * * ” and that the lots the witness sold to Effie and the New-combes were paid for by Effie.

Mr. Shelton testified that his negotiations were conducted with Mr. and Mrs. Farmer; that he never saw the respondent until the trial; that Effie had told him Mr. Farmer had put his money into his son’s name and she would need a home after he died and she would have to buy one or build one; that Effie wrote to her daughter about selling and sent the deed to the Newcombes to sign after discussing his offered price with them.

The defendant, after the trial court overruled her motion to dismiss, offered Harold Turner as a witness. Mr. Turner was then cashier at the Belgrade State Bank and previous to that had been assistant cashier at the bank. His testimony was that the deceased and her first husband maintained an account at the bank which at Mr. Richmond’s death was changed to the name of Mrs. Effie Richmond; that as early as October, 1955, the account was carried as “Mrs. Effie Richmond”; that there never was a signature card for the account; that after her marriage to Judson Farmer the account was carried as “Mrs. Effie Richmond Farmer” and so remained at her death; that the deceased was a news reporter for the Independent Journal for the Belgrade area and came to the bank every Monday to get news items and probably was there two or three times every week; that she never gave any instructions about changing the account to include Mr. Farmer, or the respondent; that the proceeds from the sale to the Sheltons went into this account ; and that he did not recall the $500.00 withdrawal to open the Ozarks Federal Savings and Loan account. The witness identified the ledger sheets on the account beginning in October, 1955, and extending through April 16, 1958, and stated that he had the later ledger sheets at the bank and could also get the earlier ones if respondent’s counsel wanted them. Counsel declined the appellant’s counsel’s offer to produce them.

The appellant rested and presented her motion for a directed verdict at the close of all the evidence. This, the trial court overruled and submitted the cause to the jury with the resultant verdict for the respondent.

Insofar as the trial court’s ruling upon the appellant’s motion to dismiss offered at the close of respondent’s evidence is concerned, appellant’s contention has no merit. The transcript discloses that appellant offered evidence after the trial court overruled its motion, and by so doing confined our review of any alleged error with respect to such motions to the motion for a directed verdict offered at the close of all the evidence. See Missouri Digest, Trial, '2=420. In determining the correctness of the trial court’s denial of that motion, we are confined to the issues submitted and with respect to that submission we are to take the evidence in the light most favorable to respondent, giving her the benefit of all reasonable inferences to be drawn therefrom, Missouri Digest, Appeal and Error, ^927(7), 866(3).

This record is devoid of any evidence that “ * * * it was agreed by all the parties * * * ” at the time of deed to the Sheltons that “ * * * the money for said property was to be placed in the bank of Belgrade, a Corporation, with Effie Richmond Farmer and Ruth Richmond Newcombe as joint tenants with right of survivorship * * * ” as submitted by respondent’s verdict directing Instruction No. 1. No one gave any evidence of any such agreement between any of the parties, and certainly there was no evidence of any such agreement by the respondent’s mother. Section 362.470 RSMo 1959, V.A. M.S. prescribes the form for creating a joint tenancy with right of survivorship and it is obvious that this account was not set up in that form. Absent obedience to the requirements of this section of our statutes, there is no presumption of joint tenancy with the attendant right of survivorship, and the survivor has the burden of proving the joint tenancy, Cranford v. Langston, Mo.App., 356 S.W.2d 581[3]; Princeton State Bank v. Wayman, Mo.App., 271 S.W.2d 600. The evidence given by the witness Turner was uncontested and uncontra-dicted and shows that at all times during which the respondent’s mother had maintained an account in the Belgrade State Bank since the death of her husband, Mr. Richmond, that account had been maintained in her name alone without any joint tenancies whatever. Moreover, the respondent’s own evidence with respect to the establishment of the joint account in the Ozarks Federal Savings and Loan shows that the respondent’s mother knew how to establish a joint account with right of sur-vivorship if she wanted to do so. The un-contradicted evidence also is that she was at the bank two or three times every week and had ample opportunity to do so if she wished.

Neither do we find any evidentiary circumstances present in this case from which the jury might reasonably have inferred that such an agreement to deposit this money as joint tenancy with the right of survivorship was in fact made. The respondent could not contend she was in fact the owner of the property before it was sold to the Sheltons and argue from that an inference that the proceeds from the sale were at least jointly hers. This is for the reason that at the time of conveyance to the Sheltons, all that the respondent and her husband owned was an undivided one-half of the property, and even that undivided one-half was subject to the life estate of the respondent’s mother. Moreover, the evidence is undisputed that at one time the respondent’s mother owned this property by herself. It is true that Mattie Turner and Mr. Shelton testified that the deceased during her lifetime had stated that she wanted her daughter to have what she had left, and that there is evidence from which it might be found that what the deceased intended to do was to use the money from the sale of the property to build a residence on the lots which she purchased from Mattie Turner, which residence was to pass to respondent after her death. However, that was not respondent’s theory of recovery, and neither was it the submission found in Instruction No. 1. The fact of the deceased’s intention to build a house which would ultimately pass to the respondent is not proof of an agreement to create a joint tenancy with the right of survivorship. The declarations or inferred intentions of the deceased can not serve, absent other proof, to establish a joint tenancy. In Napier v. Eigel, 350 Mo. 111, 164 S.W.2d 908, the Supreme Court held, at page 911,

“ * * * A mere uncompleted intention to grant an interest at death, or some time in the future, or upon the happening of some contingency is not enough. Nor do we think that proof of intention alone, even to grant a present interest, would suffice without proof of conduct showing the carrying out or fulfillment of that intention.”

It follows that there was no evidence to sustain the giving of Instruction No. 1, and it is apparent that the respondent failed to make a submissible case upon her theory that there was an agreement between her mother and the other parties to the deed to the Sheltons to deposit the money realized from the sale of the property in the bank with the respondent and her mother being joint’ tenants with the right of sur-vivorship to that account. The transcript discloses that the first trial between these parties resulted in the jury being unable to agree, and a resulting mistrial. This being the second trial of the same issues between the same parties, there is no reason to suppose that the respondent could now produce any other evidence bearing upon the issue. Accordingly, the judgment should be reversed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is reversed.

ANDERSON, P. J., and WOLFE, J., concur.

RUDDY, T., not participating.


text:
    H. E. BARNUM, d/b/a H & B Iron Works, Plaintiff-Respondent, v. A. GREENSPON PIPE COMPANY, Inc., a corporation, Defendant-Appellant.
    No. 30817.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Rexford H. Caruthers, Caruthers & Montrey, Gerhard J. Petzall, St. Louis, for appellant.
    Wayne B. Wright, Raymond F. McNally, Jr., McDonald, Barnard, Wright & Timm, St. Louis, for respondent.
   BRADY, Commissioner.

The respondent, hereinafter referred to as the plaintiff, brought suit in St. Louis County against appellant, hereinafter referred to as the defendant, upon a contract between them for the dismantling of a large oil tank and the transportation of the pieces from Sullivan City, Texas, to Savannah, Georgia, for re-erection there. The jury returned a verdict in the amount of $2,000.00, the amount due on the contract, plus $493.00 interest and costs, and upon judgment being rendered in that amount and its timely after trial motions being overruled, defendant perfected its appeal.

The petition alleged the written contract attached thereto, entered into on June 18, 1956; that the plaintiff had performed “ * * * all the acts and conditions * * * ” 0f ⅛6 contract; and that defendant had paid $2,000.00 but refuses to pay the $2,000.00 remaining due. The contract provided for the dismantling of a welded steel tank, 63' 1" by 35' high complete with steel stairway, all gages and fittings, for the sum of $2,000.00 when the dismantled tank was loaded on trucks at Sullivan City, Texas. The contract also provided, “This tank is to be taken down in first class workmanship order to be dismantled as agreed upon between you and Mr. Hardy of the Plant City Welding Company. All the plates are to be taken down carefully. None are to be thrown down, bent, mashed or flatened (sic) and to be marked for re-erection. All sheets are to be painted with a number and a diagram is to be sent to us for erection. All torch cutting is to be done in first class workmanship order suitable for welding back. Work is to start immediately and to continue with all possible speed. We will pay Two Thousand Dollars ($2,000.00) additional for hauling the above tank, stairway and fittings from Sullivan City, Texas to Savannah, Georgia. The hauling and loading is also to be done in first class workmanship order. * * * ”

H. E. Barnum identified the contract and testified that work on dismantling did not begin until about ten days had passed; that after six days of work he had to put his men on another job; that he subcontracted the remainder of the work to one Ethering-ton ; that he told Etherington “ * * * what I wanted done and how I wanted it done * * * ” and gave him paint instructions for numbering; that he personally observed the marking of the tank and the cutting; that the dismantling was completed on the 18th or 19th of July and the steel was loaded on the trucks, that after contacting the defendant’s president, he received $2,000.00 from the defendant; that he had only one long haul truck and hired two others; and that his office wrote to the defendant and after sending several wires received a letter signed by the defendant’s president which was admitted into evidence and read, in its pertinent part, “We will forward the balance of your check in the next day or two. The reason why we are holding up paying you is that the contractor at Savannah is making some complaints to us about the angles and some other trouble, but he expects to have this tank completed in the next few days. We will get the balance to you at that time. Yours very truly, President, A. Greenspon, jmc.” The witness further testified that he had never been paid the remaining $2,000.00.

The deposition of Etherington was then read into evidence. In that deposition Etherington testified that he completed the dismantling of the tank; that he recalled his instructions as to how to do the cutting and stated, “Yes, and I have had a world of experience cutting tanks down, and there is only one way you can cut them. A welded tank is what you call a lap weld, and you cut just above your bead the old weld, to save all the harm possible, of course. Q And did you cut this tank in that manner? A Yes, sir. Q All right. Now, during your work out there did you, as far as you can recall, damage any of the plate, or drop it, or cause any other damge (sic) to it? A None specifically, no. Not any.” He further testified that Barnum had been out to oversee the work and that he marked the plates himself so they could be reassembled, and saw that the plates from the top of the tank, dismantled by Barnum’s men, lying on the ground had been marked also; that he did not know if a diagram was made of the tank for re-erection or not, “ * * * But you don’t use a diagram for a tank like that. The iron is there, and it’s iron, and it’s numbered. When steel is marked, there is only one way to put it up, and that’s the way it will go.”

The deposition of M. F. Swain was read into evidence. He testified that he was one of the plaintiff’s employees and described the manner in which they marked and cut the top of the tank; that after Etherington had about half of the remainder dismantled he went back to the site with Barnum and checked Etherington’s work which “ * * all looked very satisfactory to me”; that he saw no damage to any of the dismantled pieces; that he “saw to” the loading of all of the tank on the trucks; that there was no damage done to any of the pieces in the loading; that he prepared a diagram showing the markings of the tank and, after talking to Mr. Greenspon the day before the trucks left, sent the diagram, as he had been instructed by Greenspon, to an address in Savannah, Georgia.

The deposition of Randall Hodge was then read into evidence. His testimony was that he had been a truck driver ever since the early 1920’s; that he drove one of the trucks that was used to transport this tank; that they loaded the tank on the trucks at Sullivan City and then unloaded it at Edinburg and reloaded it again, but that he wasn’t at Sullivan City, beginning his work at Edinburg; that the steel from off the other two trucks was already on the ground when he got to Savannah and he walked over to it and looked to see if it was the “ * * same steel * * ” he had on his truck; and that while observing that it was the same, he saw that it was not “ * * bent or hurt.”

The plaintiff’s last witness was Mr. Greenspon, defendant’s president, who by deposition testified that he was the chief executive of the defendant, and his duties included general operational control and supervision and the making of contracts for the company whose business was the buying and selling of steel pipe and tanks; and that defendant had purchased this tank about May of 1956. This witness further testified that while he did not know the actual date of delivery in Savannah, he knew that the plaintiff did in fact move the tank from Sullivan to Savannah; that defendant paid plaintiff the first $2,000.00 for dismantling, pursuant to the contract; and that neither he nor any employee of his company had inspected the tank since its delivery nor had they requested anyone else to make an inspection of the tank for them. Mr. Greenspon further testified that defendant brought suit against Molasses Industries, Inc. to recover the balance due to defendant on the tank. The authenticated copy of the petition in that case was then offered into evidence as Exhibit No. 5. That petition recited that the tank had been delivered to Molasses Industries, Inc. “ * * * in strict accordance with spedifi-ciations (sic) as set out in the Conditional Sales Agreement” which was a part of the petition and in which the seller, the defendant in the instant case, represented that the tank was “ * * * in good and serviceable condition and free from defects.” During the reading of Greenspon’s deposition, defendant’s counsel stated: “Let the record show defendant agrees that Plaintiff’s Exhibit 1 is a true and correct contract executed by Mr. Greenspon on behalf of the Greenspon Pipe Company.”

Written interrogatories had been submitted to Mr. Greenspon and certain of these, together with the answers thereto, were read into evidence. In these Green-spon admitted that the work called for in the first few paragraphs of the contract had been done by plaintiff. These two paragraphs deal with the dismantling and marking of the tank. By other answers Greenspon admitted defendant had paid nothing for moving the tank; that it was suing Molasses Industries, Inc. for the sale price; that Molasses Industries, Inc. had not paid anything to plaintiff; and that in its petition in that action defendant had alleged that the tank was in strict conformance with the specifications in the Conditional Sales Agreement. These conditions are as stated above.

Defendant offered no evidence but presented its motion for a directed verdict on the grounds that “ * * * the plaintiff’s evidence has failed to show compliance by the plaintiff with conditions precedent to his right to recovery as set forth in the written instrument between the parties, Plaintiff’s Exhibit No. 1, introduced in this cause.”

The defendant raises only one issue in this appeal. It contends the giving of Instruction No. 1 constitutes reversible error and assigns two reasons therefor. It contends the instruction submits a question of law to the jury and also that the instruction gave the jury a roving commission to find for plaintiff without “stating to the jury the issues made by the testimony.”

Instruction No. 1 reads:

“The Court instructs the jury that if you find that on or about June 18, 1956, the plaintiff and the defendant executed a certain contract in writing which has been referred to in the evidence, if such is the case, and if you further find that subsequently thereto the plaintiff performed all the material acts and conditions which were contemplated in said contract in writing, if you so find, and if you further find that the plaintiff caused to be dismantled a certain tank mentioned in the evidence, if so, and if you further find that the plaintiff caused the same to be delivered to Savannah, Georgia, as contemplated by the aforesaid contract, if so, and if you further find that the defendant has heretofore paid plaintiff the sum of Two Thousand ($2,000.00) Dollars for and because of said contract, if so, and if you further find that the defendant has failed and refused to pay and does now fail and refuse to pay the sum of Two Thousand ($2,000.00) Dollars or any part thereof to the plaintiff for and because of the services provided for in said contract, if so, and if you further find that such failure of the defendant to pay the aforesaid sum of Two Thousand ($2,000.00) Dollars to the plaintiff is in violation of the promise made by defendant to the plaintiff in the aforesaid contract, if so, then you should return a verdict for the plaintiff and against the defendant in the amount of Two Thousand ($2,000.00) Dollars with interest on said amount at 6 per cent per year from and after the time said tank was delivered at Savannah, Georgia, as contemplated in said contract, if such be the case.” (Emphases supplied.)

While we agree that the instruction is inartfully drawn, we cannot agree that the giving of it constitutes reversible error. Let us return to the pleadings. Defendant’s answer pleads no knowledge as to plaintiff’s identity, and neither in the trial court, in its motion for new trial, nor in its brief does defendant make any point that plaintiff was not a sole proprietorship, doing business as styled by the petition. There is therefore no issue bearing upon this appeal as to this matter. The same is true of the admission in the answer of defendant’s identity and corporate existence. Being admitted, it was not an issue in the trial, nor is it such on appeal. Defendant’s answer denied the execution of the contract, denied the performance of the contract by the plaintiff and denied that defendant made a partial payment of the contract price. These, then, were the issues for trial as delineated by the pleadings. But even these were further simplified during the trial. With respect to the issue of the execution of the contract, defendant’s counsel admitted its execution by Greenspon “ * * * on behalf of the Greenspon Pipe Company.” With respect to the issue raised by defendant’s denial of part payment, Greenspon admitted the payment, being asked,

“Q. Now, you paid my client the sum of two thousand dollars for dismantling the tank?
“A. We paid him two thousand dollars on account of the contract.”

The only issue raised by the pleadings remaining in this case was that created by defendant’s denial of the performance of the contract. It will be remembered that the petition had alleged that “ * plaintiff performed all the acts and conditions which were contemplated in said contract in writing * * ” in paragraph 4 thereof, and the answer had stated: “ * * * Defendant denies each and every allegation contained in Paragraphs 3, 4 and 5 of the petition aforesaid.” While this case was heard at our May docket, it evidently had been in the process of reaching us for some time. The answer was filed in October of 1957 and the case tried in November of 1960. However, Civil Rule 55.18, Missouri Rules of Civil Procedure, V.A.M.R., in effect when the case was tried, is the same as § 48 of the 1943 Code of Civil Procedure, and § 509.170, R.S.Mo.1959, V.A.M.S., in effect when the answer was filed. That rule reads:

“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity, and when so made, the party pleading the performance or occurrence shall establish on the trial the facts showing such performance or occurrence.”

It is obvious that the defendant’s answer does not contain a specific denial made with particularity as to the performance of the contract. The denial was general and there was not even an attempt at particularization. However, the plaintiff made no objection to the answer either in the form of a motion directed thereto or any oral objection at trial. Therefore, even though at the conclusion of the time for pleadings there was no issue made by these pleadings and the plaintiff then would have been entitled to a motion for judgment on the pleadings, plaintiff would not have been so entitled at the conclusion of trial had the proof served to amend defendant’s answer so that the particularization required by Civil Rule S5.18, supra, could have been discerned. But in this case, the defendant offered no evidence of its own and never even cross-examined the plaintiff, nor read the cross-examinations of Swain and Ether-ington into evidence. The only evidence on defendant’s behalf at all in this transcript was the cross-examination of the witness, Hodge, upon deposition, and that was read by the plaintiff’s counsel. But this only went to whether or not Hodge knew where the steel on his truck came from, a fact amply established by Swain’s testimony, or where it was put on his truck, Weslaco, Edinburg or Sullivan City, Texas, a matter of little if any bearing on the issues.

Although it does not so state in its brief, it is evidently defendant’s position that its theory or particularization of how plaintiff failed to perform sufficiently appears from plaintiff’s own evidence so that defendant’s answer, in the form of a genJ eral denial, can be said to have been so amended as to state the particularization required by Civil Rule 55.18, supra. Barnum testified that he had received a letter from Greenspon, dated September 24, 1956, and this letter, after identification, was admitted ino evidence as Exhibit 4. In its pertinent part, set out in the transcript, the letter states:

“We will forward the balance of your check in the next day or two. The reason why we are holding up paying you is that the contractor at Savannah is making some complaints to us about the angles and some other trouble, but he expects to have this tank completed in the next few days. We will get the balance to you at that time. Yours very truly, President, A. Greenspon, jmc.”

This constitutes the only support for defendant’s position that plaintiff’s own evidence provides the particularization required by the rule so as to supply the deficiency in its pleading. The original petition in the suit brought by the defendant against Molasses Industries, Inc. cannot do so because therein the defendant alleged: that the tank was “ * * * in strict accordance with spedificiations (sic) as set out in the Conditional Sales Agreement.” This petition was verified by Mr. Green-spon’s affidavit as president of defendant.. Neither is the plaintiff’s evidence as to how it cut and marked the tank sufficient for defendant’s purpose. That evidence was given to show compliance by the plaintiff with the requirement in the contract that “All the plates are to be taken down carefully. None are to be thrown down, bent, mashed or flatened (sic) and to be marked for re-erection. All sheets are to be painted with a number and a diagram is to be sent to us for erection. All torch cutting is to be done-in first class workmanship order suitable for welding back.” Since the plaintiff had the burden to show his performance in accordance with the provisions of the contract, the introduction of such testimony certainly cannot be said to provide the particularization as to how the contract was not performed as required by the rule.

The defendant is therefore left only with-that portion of the letter of September 24, 1956, set out earlier herein to supply the proof that would amend the general denial of its answer by stating, specifically and with particularity, the denial of performance required by Civil Rule 55.18, supra. It does not do so. All that letter states is the reason given by Molasses Industries, Inc. as to why they hadn’t paid the defendant. The letter in no way illustrates that defendant advocated a contention that it later, by a petition verified by its president, denied existed.

It follows that there was not only a failure to raise any issue by the answer, but also a failure of proof which could be said to have amended the answer so as to provide the specific and particular denial of performance. Accordingly, the plaintiff having proved every issue properly raised by the pleadings and necessary for his case, he was entitled to a directed verdict and any error, if there be such, in the instruction could not be prejudicial.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is therefore affirmed.

ANDERSON, P. J. and WOLFE, J., concur.

RUDDY, J., not participating.