author: JAMES D. CLEMENS, Special Judge.

text:
    Helen MERRITT (Plaintiff) Respondent, v. Talley Earl WILKERSON (Defendant) Appellant.
    No. 31102.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      E. L. McClintock, Jr., and McClintock & Medley, Flat River, for appellant.
    J. Richard Roberts and Roberts & Roberts, Farmington, for respondent.
   JAMES D. CLEMENS, Special Judge.

Plaintiff recovered for injuries arising from a rear-end automobile collision. Defendant appeals, charging errors in plaintiff’s failure to negate contributory negligence in her verdict-directing instruction, prejudicial argument by plaintiff as to damages, and excessiveness of the $5,800 verdict.

The material facts are not in dispute. The defendant was called as a witness by the plaintiff, but otherwise offered no evidence. Plaintiff was a passenger in a Ford station wagon, riding behind its driver, 17-year-old David O’Dell. It was going north on Highway 67 in St. Francois County at 50-60 miles per hour, followed by the defendant driving a DeSoto automobile. The defendant began to overtake the station wagon and in doing so the right front of his DeSoto struck the left rear of the station wagon, which went off the highway to the right, across the shoulder and into a ditch. The highway was straight and had two lanes of paved concrete. There were unpaved shoulders wide enough for a parked car, plus space enough to alight from the right side. Other facts will be related in discussing defendant’s claims of error. The first concerns the failure of plaintiff’s verdict-directing instruction to negate her alleged contributory negligence.

By his answer, the defendant pleaded that the plaintiff’s injuries “were directly contributed to by the negligence of plaintiff in failing to exercise ordinary care for her own safety.” She did not challenge the generality of this defense, so the door was left ajar for defendant to submit that issue on any evidence which constituted contributory negligence. Martin v. Turner, Mo., 306 S.W.2d 473(2, 3); Holtz v. Daniel Hamm Drayage Co., 357 Mo. 538, 209 S.W.2d 883(1). The defendant submitted the issue by his Instruction No. 4:

“The Court instructs the jury that the plaintiff was under a duty to exercise ordinary care for her own safety and if you find and believe from the evidence that plaintiff immediately prior to the collision in question shouted an instruction or command to the driver of the automobile in which she was riding to ‘Get out of his way’ or words to that effect, and if you further find that the driver followed, or attempted to follow, said instruction or command and went off the highway on the right and down an embankment, and if you further find that plaintiff by shouting an instruction or command to the driver, if you so find, failed to exercise ordinary care for her own safety, then you are instructed that plaintiff was negligent, and if you further find that such negligence on the part of plaintiff, if you so find, contributed to cause her injuries, if any, then you are instructed that plaintiff is not entitled to recover on her cause of action and your verdict should be for defendant.”

The plaintiff frankly admits that her verdict-directing instruction did not negate this submitted issue of contributory negligence. Defendant claims this is reversible error, pointing to Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 23. The plaintiff counters by claiming that the evidence did not warrant the submission of contributory negligence. This calls for a recitation of the evidence on that issue considered favorably to the defendant.

Both plaintiff and driver O’Dell had noticed the defendant following and closing in on their station wagon, and commented on it. Mrs. O’Dell, the driver’s mother, was a passenger. She quoted plaintiff as then saying to the driver in a raised voice: “He’s going to hit you.” Plaintiff herself testified as to the comments on defendant’s approach, and also said that when the defendant was within about thirty feet of the station wagon she was frightened and excitedly shouted to the driver O’Dell to “get out of the road, that he was going to hit us.” O’Dell immediately pulled to the right onto the shoulder, and when the station wagon was partly onto the shoulder, the impact occurred. It was not severe — “just a boost,” but the station wagon went on into the ditch. The defendant testified that the station wagon reduced its speed when he was about three car lengths behind it and was beginning to make his pass. The driver O’Dell had entered into military service and was not a witness. Do these facts constitute contributory negligence?

The elements of actionable negligence are a duty, failure to do it, and resultant injury. See 65 C.J.S. Negligence § 2; Schaefer v. Accardi, Mo., 315 S.W.2d 230 (6); Eddy v. Missouri Public Service Co., Mo.App., 309 S.W.2d 4(2-7). To warrant submission of defendant’s defense of the plaintiff’s contributory negligence, it was therefore necessary that the evidence show (a) that plaintiff was negligent in so telling the driver to leave the highway, (b) that he did so because of her instruction, and (c) that his act of leaving the paved portion of the highway was a cause of her injuries. We are not prepared to say, and do not decide, whether plaintiff was negligent in shouting an excited order to the driver. Suffice it to say that there was no showing that plaintiff’s words were responsible for O’Dell taking the evasive action, nor that such action was a cause of plaintiff’s injuries. O’Dell also was aware of the imminence of the collision. To turn from the path of danger was a natural thing to do, and he might well have tried to turn away from the danger without the plaintiff’s telling him to do so. And the collision would just as well have occurred even if O’Dell had not tried to escape, although the results might well have been different. Thus, the jury could not have found either of the two elements of causation without entering the “nebulous twilight of speculation, conjecture and surmise.” [Hildreth v. Key, Mo.App., 341 S.W.2d 601(8).] The rule against submission of such an issue is tersely stated in Craddock v. Greenberg Mercantile Inc., Mo., 297 S.W.2d 541(12), loc. cit. 548: “ * * * If the cause of an injury is left to speculation and conjecture, when sound reasoning does not point to the liability of the defendants to the exclusion of other causes, there may be no recovery.” Accordingly, we find that it was error to submit the issue of plaintiff’s alleged contributory negligence.

It follows that defendant was not harmed by the absence of reference to contributory negligence in plaintiff’s verdict-directing instruction. The conflict was between plaintiff’s good instruction and defendant’s erroneously given instruction. An erring defendant cannot complain of such a conflict, for he has invited it. Jones v. Hughey, Mo., 283 S.W.2d 550(12); Hayes v. Wabash R. Co., 360 Mo. 1223, 233 S.W.2d 12(4).

We pass now to defendant’s claim of error in permitting plaintiff to invoke the golden rule in arguing the issue of damages. It is generally held to be improper argument to ask a juror to place himself in the shoes of a party and to render such a verdict or such damages as he would want rendered if he was so situated. 88 C.J.S. Trial §§ 169(n. 51) and 192(n. 78).

And see 53 Am.Jur., Sec. 496:

“While sympathy for suffering and indignation at wrong are worthy sentiments, they are not safe visitors to the courtroom. They may not enter the jury box, nor he heard on the witness stand, nor speak too loudly through the voice of counsel. It is, therefore, improper for counsel to appeal to the sympathy of the jury, either directly or indirectly, as for example, by asking the jury, in a personal injury action, to put themselves in the plaintiffs place, if they would go through life in .the condition of the injured plaintiff, or would want members of their family to go through life crippled * * * ”

Webster defines the golden rule as: “The rule of doing to others as we would have them do to us,” and cites the biblical references found in the books of Matthew 7:12 and Luke 4:31. So when a plaintiff urges a juror to follow the golden rule he is asking the juror to trade places and to decide the case as if he were the plaintiff instead of a juror. We look now to the setting of this part of the trial.

The evidence was that when the collision occurred the plaintiff was two months pregnant. She received a blow on her abdomen. She suffered a miscarriage as she was being taken from the ambulance into the hospital. Surgery followed. Since, she has been nervous, irritable and fearful she cannot give birth to another child. In argument of the issue of her damages plaintiff’s counsel referred in colorful language to plaintiff’s loss of her unborn child, her pain, her apprehension over ability to bear another child; and continuing the following occurred:

“By Mr. Roberts, continuing:
“* * * j don’t know, ladies and gentlemen, but I say to you ir. ail honesty and all sincerity and all fairness that I know you’re going to follow all of the instructions and you’re going to search your heart and your soul and you’re going to give this woman a verdict, something what will compensate her for what she went through. Make it a substantial verdict. Follow the old rule, the golden rule—
“By Mr. McClintock : Now, if your Honor please—
“By Mr. Roberts: —and take care of this—
“By Mr. McClintock: I object to that argument; that’s improper argument. Do unto others as — ‘Follow the golden rule.’
“By Mr. Roberts: I didn’t say that.
“By Mr. McClintock: Well, that’s the golden rule. That’s improper argument. I ask the Jury be instructed to disregard that; that it’s not proper to follow the golden rule.
“By the Court: Overruled. Proceed.
“By Mr. McClintock: And I—
“By Mr. Roberts: All I want to say, ladies—
“By Mr. McClintock: Just a minute. Did Your Honor overrule the motion?
“By the Court: Yes.
“By Mr. Roberts: All I want to say to you ladies and gentlemen, bring in a verdict and compensate this poor little girl, this woman, for what she has suffered and is now suffering and will continue to suffer. Thank you.
“Immediately following the above argument, objections, and rulings, the defendant moved for a mistrial outside the presence of the jury, which motion was denied.”

It will be seen by this argument that plaintiff appealed to the sympathy of the jurors, then asked the jury to follow the golden rule “and take care of this * * and after defendant’s objection had been overruled, continued to plead to the jury to compensate “this poor little girl.” So we cannot now accept plaintiff’s explanation that had he not been interrupted by defendant’s objection “(i)t is possible that plaintiff’s counsel was going to urge the jury to apply the golden rule to both plaintiff and defendant.” He did not do so.

Twice recently this point has been before our Supreme Court. In Warning v. Thompson, Mo., 249 S.W.2d 335, loc. cit. 343, 30 A.L.R.2d 1176, that court said:

“ * * * In his jury argument, plaintiff’s counsel was discussing the amount of damages. He said: ‘Then, look down into the future and do your very, very best as you would have others do unto you under similar circumstances.’ Defendant’s counsel moved that the jury be discharged. The court overruled the motion but directed the jury to disregard the statement.
“We shall assume without deciding that the question asked by plaintiff’s counsel and his argument (invoking the Golden Rule) were improper. However, as the trial court directed the jury to disregard such question and such argument, it did not abuse its discretion in refusing to declare a mistrial. ‘Such matters rest largely within the discretion of the trial court.’ McGinley v. St. Louis Public Service Co., Mo.Sup., 239 S.W.2d 321, 324 * * *.”

In will be noted that in the quoted case and also in the case cited therein the trial court directed the jury to disregard the objectionable argument. The Supreme Court held only that the trial court did not abuse its discretion in denying the further relief of a mistrial. Here, the trial court both overruled the objection and denied a mistrial.

In the trial of the case of Faught v. Washam, Mo., 329 S.W.2d 588(26), loc. cit. 602, plaintiff’s counsel urged a verdict based on $3.00 a day for the time of plaintiff’s life expectancy, and argued “ * * * you only get paid $3.00 a day. Here is your job — your job is to suffer Mr. Faught’s disability.” The trial court overruled defendant’s objection to the argument. The Supreme Court said (329 S.W.2d loc. cit. 602):

“ * * * The quoted ‘job offer’ was a tandem plea (a) that the jurors put themselves in plaintiff’s place and (b) that they employ a so-called mathematical formula in assessing his damages for pain and suffering. Standing alone, an appeal to jurors to put themselves in plaintiff’s place does not always constitute reversible error, particularly where the trial court has taken effective action with respect thereto or where there is no complaint on appeal that the verdict was excessive [Sparks v. Auslander, 353 Mo. 177, 186, 182 S.W.2d 167, 172-173(10)], but this character of plea is consistently condemned and uniformly branded as improper, the rationale of rejection being that a juror ‘doing that would be no fairer judge of the case than would plaintiff’ himself [F. W. Woolworth Co. v. Wilson, 5 Cir., 74 F.2d 439, 442, 98 A.L.R. 681] and that such ‘argument, in effect, affirms as a correct principle that a man may properly sit in judgment on his own case — an idea abhorrent to all who love justice’ and not ‘given a cloak of respectability by associating it with the Golden Rule’ because that Rule ‘applies in favor of the defendant as well as the plaintiff.’ Red Top Cab Co. v. Capps, Tex.Civ.App., 270 S.W.2d 273, 275.”

In reversing plaintiff’s judgment because of the cumulative prejudicial effect of certain photographs and the cited argument, the court added:

“* * * ⅛ our considered judgment, the ‘job offer’ argument of counsel for instant plaintiff was mischievously unfair not only because it appealed to the jurors to put themselves in plaintiff’s place but also because it invited them to admeasure damages on a mathematical formula.” (329 S.W.2d loc. cit. 604)

We have considered the golden rule argument here in the light of the Warning and Faught cases. We have also considered the nature of plaintiff’s injuries and the sympathy which they would naturally call forth. Under these circumstances, we hold that the argument was improper and prejudicial. The trial court should not have overruled the defendant’s objection thereto. By doing so the trial court approved the argument and thereby abused its discretion. We believe the error was one “materially affecting the merits of the action.” [V.A.M.R. 83.13 (b) ], and was therefore reversible.

Because of the necessity of a new trial we will not deal with defendant’s further contention of the excessiveness of the verdict.

Accordingly, the judgment should be reversed and the cause remanded for a new trial. It is so ordered.

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

RUDDY, J., not participating.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    James CLARK, Plaintiff-Respondent, v. Thomas W. DUBBS, Defendant-Appellant.
    No. 31023.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied Oct. 10, 1962.

      Heneghan, Roberts & Cole, John J. Cole, St. Louis, for appellant.
    Charles A. Mogab, Donald S. Hilleary, St. Louis, for respondent.
   BRADY, Commissioner.

Respondent, hereinafter referred to as the plaintiff, obtained a jury verdict and resulting judgment in the amount of $7,000.00 in this case, arising out of an automobile accident. Upon his timely after trial motion being overruled, appellant, hereinafter referred to as the defendant, filed notice of appeal. Our attention is first directed to the notice of appeal due to plaintiff’s motion to dismiss this appeal which, as is our custom, was taken with the case when it was submitted. The notice of appeal filed by the defendant stated that the appeal was taken “ * * * from the Order of the Trial Court overruling defendant’s motion for judgment or for a new trial entered in this action on the 19th day of June 1961.” There is no appeal from such an order, appeals lying only from final judgments, Sections 512.020, 512.050 RSMo 1959, V.A.M.S. In their reply brief, the defendant’s counsel frankly concedes that the notice of appeal is, as he puts it, “technically imperfect” and that the appeal should have been taken from the judgment entered on March 30, 1961. However, he urges that this appeal should not be dismissed as it constitutes an attempt in “good faith to appeal from the verdict and judgment.” There is no doubt but that this court, and all the appellate courts of this state, have repeatedly stated that if the appeal can be viewed as a good faith attempt to properly appeal, it will not be dismissed, Taylor v. Hitt, Mo.App., 342 S.W.2d 489; Walker v. Thompson, Mo., 338 S.W.2d 114; Ozark Border Electric Cooperative v. Stacy Brothers, Mo.App. (Springfield), 348 S.W.2d 586; Standley v. Western Auto Supply Co., Mo.App. (Kansas City), 319 S.W.2d 924. We will reluctantly accept defendant counsel’s statement that this disregard of the plain and clear language of the statutory requirement is a good faith attempt to comply with its plain and unambiguous terms. The motion will be overruled.

In this appeal the defendant raises three points. He contends that the trial court prejudicially erred in refusing to give his offered Instruction B; that it erred in giving Instruction No. 5 offered by the plaintiff; and that the verdict was so excessive as to indicate bias, prejudice and passion which was created by misconduct of plaintiff’s counsel. Because of the nature of these allegations of error and our disposition of the appeal, the factual review will be very limited.

Shortly before 11:00 A.M. on January 14, 1960, plaintiff was driving his Ford automobile eastwardly on Highway 30, a two-lane pavement approximately 20 feet wide, and was approaching the intersection of that highway with Highway 141 in St. Louis County, Missouri. On that day there was a light rain and the pavement was wet. Just to the west of the intersection of these highways there is a bridge, and west of the bridge on the north side of the highway is located Richard’s Garage. Defendant had been conducting some business at the garage and, pulling out of the garage driveway onto the highway, was turning left, eastwardly, toward the bridge which was about 90 feet east of the driveway. Plaintiff’s evidence was that his car was 45 to 50 feet west of defendant’s automobile in the garage driveway when the defendant pulled out onto the highway. The eyewitness Oliver stated that plaintiff was 40 to 50 feet west of defendant’s car when defendant’s car was at the north edge of the highway. Plaintiff put his speed at this time at 25 to 30 miles per hour. Oliver put plaintiff's speed at 30 to 35 miles per hour. Defendant testified that plaintiff’s speed was 45 to 50 miles per hour. The evidence of the police officer Ledbetter was that at the scene the plaintiff gave his speed at “approximately forty miles per hour” and that he, the police officer estimated his speed (at 40-45 miles per hour) on the basis that “Well, a hundred feet of skid marks normally will register between forty-three and forty-five miles per hour.” Defendant’s speed at this time was estimated by plaintiff at 20 miles per hour, at 10 miles per hour by the witness Oliver, and at 10 to 15 miles per hour by the witness Tocco. Defendant told Ledbetter that he was doing 10 to 15 miles per hour.

What happened thereafter is not seriously disputed. Plaintiff applied his brakes when he first saw the defendant, and the plaintiff’s car started skidding on the wet highway with the result that the left rear door of plaintiff’s car collided with the right rear of defendant’s car at a point which plaintiff estimated to be about 40 feet from the west end of the bridge. The point of impact was about one car length from the west end of the bridge, or 15 to 20 feet, according to other witnesses. Plaintiff’s automobile continued on after the impact and struck the west end of the bridge abutment on the south side of the highway, and went into the ditch. It had been stipulated by counsel that there was a 35 miles per hour speed zone for eastbound traffic which extended about 300 feet west of the point of impact. In view of our disposition of this appeal, it will not be necessary to set out Instruction No. 5. The trial court refused to give defendant’s offered Instruction B, which reads as follows:

“The Court instructs the jury that if you find and believe that at the time of the collision mentioned in evidence, plaintiff had been operating his automobile at a speed of 40-45 miles per hour in a duly constituted 35 mile per hour speed limit zone then you are instructed that under the law he was negligent and if you further find and believe that such negligence, if any, on plaintiff’s part caused or contributed to cause the collision mentioned in evidence then you are instructed that your verdict shall be against the plaintiff and in favor of defendant, Thomas Dubbs, and this is so even though you should also find and believe defendant was negligent under the evidence and instructions of this Court.”

However, the court did give Instruction No. 7 at the request of the defendant made after Instruction B was refused. That instruction reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that upon the occasion mentioned in evidence plaintiff was operating his automobile at a speed of 40-45 miles per hour and if you further find that the highway over which plaintiff was operating his automobile was wet and slippery and if you further find and believe that it was raining at the time of the collision mentioned in evidence and if you further find and believe that motor vehicles were parked along the north side of the highway in front of the salvage yard mentioned in evidence in such a position as to obscure the view of vehicles entering the highway from said salvage yard driveway and if you further find and believe that in so operating his automobile at a rate of speed of 40-45 miles per hour under the aforesaid circumstances plaintiff did not exercise the highest degree of care, then you are instructed that plaintiff was negligent, and if you further find and believe that such negligence if any, on plaintiff’s part, caused or contributed to cause the collision mentioned in evidence then you are instructed that plaintiff cannot recover and your verdict shall be in favor of defendant Thomas Dubbs and this is so even though you should also find that Dubbs was negligent under the evidence and these instructions.”

Considering the defendant’s first allegation of prejudicial error, defendant’s contention that the refusal of Instruction B constitutes reversible error because under Instruction No. 7 the jury was required to find that in operating his automobile at a speed of 40 to 45 miles per hour “ * * * plaintiff did not exercise the highest degree of care * * * ” whereas under Instruction No. B, no such finding would be required, it is the defendant’s position that since the duly constituted speed zone for eastbound traffic was stipulated and since the defendant testified that plaintiff’s automobile was traveling at 40 to 50 miles per hour, it is unnecessary for an instruction to require the finding of a violation of the highest degree of care and negligence, because the violation of the duty to observe the legal speed limit of 35 miles per hour is negligence per se. In other words, Instruction No. 7 merely permitted the jury to find plaintiff contributorily negligent, whereas defendant should have been allowed to give Instruction No. B, which directed the jury to find plaintiff contribu-torily negligent if they found plaintiff was driving at the speed hypothesized. The result, defendant argues, is that he was •required to carry a greater burden than the law requires of him, and was deprived of submitting his valid defense to the jury.

While not determinative of the final outcome of this appeal, defendant’s position in this regard must be sustained. Even plaintiff admits this is so. There is no doubt but that since there was no claim of, or evidence as to, any exculpating circumstances, violation of this stipulated legally constituted speed zone was negligence, and did not require any further finding from the jury as to the exercise of the highest degree of care, Bowman v. Ryan, Mo.App., 343 S.W.2d 613, l. c. 621, 622 [20-24]; Swain v. Anders et al., 349 Mo. 963, 163 S.W.2d 1045, l. c. [14] 1052. It should be kept in mind that the application of this duly constituted speed limit of 35 miles per hour was stipulated without any reference to the authority for such a limit, whether it be an ordinance or whatever. Neither does it appear that the zone was within the city limits of Fenton, Missouri. The only reference is that it took place “on the outskirts of Fenton” which could mean just inside of, or just outside of, that city. Accordingly, we must assume that the limit of 35 miles per hour was without qualification of any kind. We are therefore not confronted with a situation where the establishing authority had exceptions noted within its own language. See Willhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956.

Even so, the fact that the plaintiff was operating his automobile in violation of the limits of the stipulated duly constituted speed zone raises no presumption that the accident was caused by excessive speed. This court has specifically so held and also has held that unless it appears that the negligence charged caused or directly contributed to cause the accident resulting in the injuries for which recovery is sought, no liability attaches for such injuries even though the negligence charged constitutes negligence per se, Bauman v. Conrad, Mo.App., 342 S.W.2d 284 at [3] 287, and cases therein cited. It still remained for defendant to show that plaintiff’s negligent act was the proximate cause of the collision and his injuries, Bauman v. Conrad, supra.

In Bauman v. Conrad, supra, this court held at 342 S.W.2d l. c. 288 [5]:

“In other words, excessive speed is not the proximate cause unless it prevents the operator of the vehicle traveling at said excessive speed from avoiding the accident. It must be shown, as we have said, that the accident would not have occurred except for the excessive speed shown by the evidence.”

In that case this court held there was no substantial evidence that the excessive speed shown by the evidence was a direct and proximate cause of the collision and injuries which there occurred. Defendant distinguishes the instant case from Bauman on the ground that in Bauman this court found an evidentiary failure to show that the defendant therein was driving at the excessive speed for any distance other than as submitted by the instruction in that case “ * * * at the time of the accident * * * ” whereas in the instant case there was defendant’s evidence that when plaintiff was 250 feet from him he was traveling in excess of the permitted limit. Plaintiff in the case at bar is candid in his brief to admit that if we take the defendant’s version as to distance apart (250 ft.) as well as defendant’s lowest version as to speed, 45 miles per hour, the defendant made a case of plaintiff’s negligence being the direct or a contributing cause, for 250 feet divided by 15 (the excessive speed of 10 miles per hour equals 15 feet per second) would have given the defendant an extra 16.6 seconds to complete his turn (he was then in the middle of a 20-foot pavement going 10 miles per hour at the slowest estimate given) and be on his way. However, the plaintiff urges that this is so only if the jury believes defendant’s evidence as to both speed and distance, for even if the jury found the plaintiff to be traveling at 40-45 miles per hour as submitted in the instruction and so violating the speed zone, yet if they believed the plaintiff as to the distance the cars were apart, 50 feet, the excessive speed could not be the direct or a contributing cause, for there was no opportunity then for the plaintiff to have avoided the accident which, at that distance, was about one second away at the legal limit of 35 miles per hour and about two-thirds of a second away at 45 miles per hour. Instruction B, plaintiff urges, told the jury that the position of the automobiles made no difference, yet only if defendant’s testimony as to that position is believed can the negligence charged, a speed of 40-45 miles per hour in a 35 miles per hour zone, be the direct or a contributing cause of the collision. Plaintiff concludes that the instruction was therefore properly refused because it failed to hypothesize the position of the automobiles as defendant’s evidence put them and require the jury to so find, any finding by the jury as to causation being otherwise founded on forbidden speculation and conjecture.

Defendant points to the plaintiff’s failure to cite a case as authority for his position that the constitutive facts on the issue of proximate cause need to be hypothesized and included in the instruction. Defendant contends that no hypothesization of .facts to submit proximáte cause further than that found in Instruction B is necessary and argues that the ultimate fact may be submitted for a finding where excessive speed in violation of lawful limits is first required to be found and there is substantial evidence in the case from which the jury could find such per se negligence was a contributing cause of the collision. Defendant’s position is that all that is required is for the instruction to hypothesize sufficient facts from which the jury can find the violation of the speed zone, so long as there was evidence from which the jury could reason from that finding to make a causal connection. Since, he argues, there was evidence in this case to show that the excessive speed existed, under his version of the facts, back 250 ft. from the place he first saw the plaintiff, he contends that fact distinguished this case from Bauman v. Conrad, supra, and alleviates any necessity of hypothesizing the position of plaintiff’s car.

In our view the point at issue is ruled by Watt v. St. Louis Public Service Company, Mo., 354 S.W.2d 889, which is not cited by either party. In the Watt case there was a city ordinance limiting speed at the location of the collision to 15 miles per hour, and violation of this ordinance was submitted in the verdict directing instruction offered by plaintiff and given by the court. Defendant appealed, alleging as prejudicial error the giving of that instruction and urging as support therefor that the violation was not the direct and proximate cause of the collision. It is unnecessary to set out the factual situation there existing because it suffices for the purpose of our inquiry that the plaintiff testified that he saw the defendant about three car lengths (which he estimated at 30 to 45 feet) from him, going 20 miles per hour, an excess of 5 miles per hour. In short, as in the instant case, the violation continued for a longer period of time than was presented in Bauman, although not for so long as in the instant case. The contentions advanced by the plaintiff in the instant case were those made by the defendant in the Watt case, including the failure of any evidence as to stopping distances at the legal speed limit or at any speed which plaintiff in Watt, and defendant here, was shown by the evidence to be traveling. The court in Watt rejected these arguments and held the instruction properly given. The defendant is correct in distinguishing Bauman v. Conrad, supra, from the case at bar, there being even more time during which the violation of the speed limit occurred in the instant case than there was in the Watt case, which was distinguished on that ground from Bauman v. Conrad, supra. Therefore, as in the Watt case, the evidence was present from which the jury could find a causal connection.

It follows that the trial court prejudicially erred in refusing Instruction B. The result herein reached on this allegation of error compels us to reverse the judgment and render unnecessary any ruling upon the other allegations of error. The plaintiff’s motion to dismiss this appeal should be overruled and the judgment should be reversed, and the cause remanded to the trial court. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The motion to dismiss the appeal is overruled; the judgment is reversed, and the cause remanded to the trial court.

ANDERSON, P. J., WOLFE, J., and GEORGE P. ADAMS, Special Judge, concur.

RUDDY, J., not participating.


text:
    Margaret CROWLEY (Plaintiff) Appellant, v. Edward CROWLEY (Defendant) Respondent.
    No. 31088.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Hale W. Brown, Kirkwood, for appellant.
    Charles J. Malloy, St. Louis, for respondent.
   JAMES D. CLEMENS, Special Judge.

Action for divorce. The trial court granted the defendant husband a divorce on his cross-bill and awarded him custody of the parties’ minor children. Plaintiff wife appeals. The questions put to us here concern the trial court’s alteration of its judgment, the admissibility of evidence, and whether the judgment was for the right party.

The parties were married in 1946 and separated in 1958, when plaintiff left the parties’ home and took with her their four children, a boy now 17, and girls now 13, 10 and 6.

Plaintiff’s evidence as to the merits was brief: She performed all her wifely duties and was affectionate to the best of her ability. Defendant often told her he wished he’d married a girl he’d previously been engaged to. He struck her many times, and just before the separation hit her on the jaw with his fist, knocking her down. Many times the defendant told her he didn’t love her and wished he was rid of her. Defendant often went out alone but rarely took her out socially. Plaintiff lives in a modern four-room rented house with the four children. She works afternoons and the children are either with her or her sister.

Defendant’s testimony: In 1958 the plaintiff became cold, called defendant vile names, and slapped him numerous times. Plaintiff ceased doing her usual household work, refused to go with him to places of amusement, and ceased going to church with defendant and their children. Late in 1958, plaintiff left defendant, without notice or explanation. She took the children with her, and kept them in a single room, without toilet facilities, at a trailer court. She declined defendant’s requests to return home with the children. She ceased taking the children to church, but for a while had a neighbor take them. Earlier that year, a pre-marital acquaintance of the parties, John Niznik, had begun associating with plaintiff from time to time. Niznik was married and had three children of his own. He gave her gifts of jewelry and perfume. He had written her endearing letters expressing his love for her in intimate details. She kept these letters secretly from the defendant. Plaintiff acknowledged to defendant her love for Niz-nik, and once wrote a note to her husband: “I can’t understand why you suddenly seem shocked. I told you six months ago how I feel about Johnny, and that I wish I had married him. I have a responsibility to these children — so do you. I can’t just consider my own feelings. I might never see Johnny again, but I will always feel the same about him. Talking to a priest isn’t going to change anything.” Once plaintiff and defendant called on Niznik together to induce him to cease interfering with their married life. Plaintiff made numerous telephone calls to Niznik at his place of employment. He acknowledged he was fond of her. Three of plaintiff’s four character witnesses had met Niznik in the cocktail lounge where plaintiff worked as a waitress after the separation. Defendant has maintained close association with the children, being with them several times a week. Plaintiff sometimes left the children at her new home unattended, and at times had them with her at the cocktail lounge where she was employed. Defendant still maintains the family eight-room home and would have his mother’s help in caring for the children while he is at work. Plaintiff denied that her interest in Niznik was romantic, and minimized the extent of their association and communication.

Plaintiff argues here that the decree is void. The trial court first denied both the petition and cross-bill. Then, within thirty days, it set aside that order and entered its decree in favor of the defendant, stating that counsel had not been notified of either the original order or the court’s intention to alter it. Plaintiff did not raise the point here urged in her motion for new trial as required of her by Mo. Sup.Ct. Rule 83.13(a), V.A.M.R. in order to preserve the point for review. Adams v. Richardson, Mo., 337 S.W.2d 911(1); Marlo Coil Corp. v. Grand Park Corp., Mo.App., 348 S.W.2d 610(2, 3). Further, plaintiff does not set forth such an assignment here in her Points Relied On. She cannot preserve it merely by bringing it up in the argument portion of her brief. Automobile Club of Mo. v. Hoffmeister, Mo.App., 338 S.W.2d 348(6). Because the point is not properly preserved for review, and does not go to the merits of the cause, we will not consider it further.

Plaintiff next urges that the trial court erred in receiving in evidence the letters written to her by Niznik, on the ground that no proper foundation was laid therefor. She argues here, without citing authority, that the statements of Niznik in these letters were not binding on plaintiff. We take it that plaintiff means that what Niz-nik may have said in the letters was not relevant to the issues before the court, and was therefore inadmissible. One of those issues was whether plaintiff had associated with Niznik in a manner repugnant to her marital obligations. In the letters Niznik expressed his ardent affection for plaintiff and spoke of such conduct and attitude on her part as would indicate that the affection was mutual. We must examine the question of relevancy between the letters and the issue of wrong-doing.

Relevancy is the relationship between the offered fact and the fact in issue to such a degree that the existence of the offered fact logically renders probable the existence of the fact in issue. See 31 C.J. S. Evidence § 158, and the case of Biener v. St. Louis Public Service Co., Mo.App., 160 S.W.2d 780(1), loc. cit. 783, in which this court adopted Sec. 587 of Jones Commentaries on Evidence, where it is said:

“Applied to testimony, the meaning of the word ‘relevant’ is that the particular testimony directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth of it. * * * It is not necessary, however, that the particular evidence should, in itself, bear directly upon the point in issue, for, though it is but a link in the chain of evidence tending to prove the issue by reasonable inference, it may nevertheless be relevant. * * * ‘If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should .go to the jury. The question as to its admission or rejection addresses itself to the court as one to be answered with a view to practical, rather than theoretical considerations. One fact is relevant to another fact whenever, according to the common course of events, the existence of one, taken alone or in connection with other facts, renders the existence of the other certain or more probable.’ ”

Standing alone, the letters do not .«•how misconduct by plaintiff, and their existence would not be relevant. But, they do not stand alone. There was other evidence of intensive, clandestine association between plaintiff and Niznik. Each had otherwise acknowledged an affectionate attachment for the other. Although plaintiff denied receiving the letters, defendant testified he found them among her personal effects, along with gifts from Niznik, kept secretly by her. Considering these surrounding circumstances, we feel that the possession of these love letters by plaintiff was a fact which tended to render probable the alleged wrongful association between plaintiff and Niznik. The test is succinctly stated in Luechtefeld v. Marglous, Mo.App., 151 S.W.2d 710(5), loc. cit. 714: "Evidence is relevant if the fact it tends to establish in turn tends to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue.” We find that the letters were relevant to the issue at bar, and that their admission into evidence was not error. Compare Simpson v. Terminal Railroad Ass’n of St. Louis, Mo., 357 S.W.2d 65(1).

Plaintiff also claims error in the admission of evidence by defendant as to twenty some telephone calls plaintiff made to Niznik during June of 1958. Niznik testified he “could not dispute” receiving these calls from plaintiff. Plaintiff acknowledged “several” such calls to Niznik at his place of employment. Defendant testified that when he got his telephone bill for June he called the telephone office and got a list of the dates, numbers called and length of time of each call. He had learned that the numbers called were those of Niznik’s employers. Defendant then read the results of his investigation, and plaintiff moved that this be stricken because it was not the best evidence. The trial court stated that this was not the best evidence, but failed to grant the motion, saying it was receiving the testimony “only as to the credibility of the plaintiff, not as to the truth of what was said.” This ruling seemed to satisfy plaintiff’s counsel, who replied: “We are on the same frequency then.” Regardless of the correctness of the ruling and whether plaintiff preserved her claim of error, the number of calls is so inconsequential that we can and will rule the case without reference to this testimony. An error in admission of evidence is harmless in cases tried to a court, where there is sufficient proper evidence on which to base a decision. See Lockhart v. Lockhart, Mo.App., 271 S.W.2d 208(7); and cases at 3 Mo.Dig., Appeal and Error, 1054(1).

We pass now to the more essential issues of the case, the trial court’s granting of the divorce to the defendant, and awarding to him the custody of the children. In passing on these issues we must ourselves decide them on the record of the case below, but in doing so we will consider the better vantage point of the trial court to assess the credibility of the witness and to observe the intangible factors which do not make themselves so apparent to us in the cold, written record. The findings of the trial court should be deferred to unless they are in such conflict with a clear preponderance of the evidence as to disclose a manifest abuse of judicial discretion. Sec. 510.310(4), RSMo 1949, V.A.M.S.; LeClaire v. LeClaire, Mo.App., 352 S.W.2d 379(3); Grant v. Grant, Mo.App., 324 S.W.2d 382 (1).

Viewed in this light, we believe the evidence outlined above shows that defendant was the innocent and injured party, and that by the plaintiff’s course of conduct she has committed such indignities as to be subversive of the family relationship and thus render defendant’s condition intolerable. This is sufficient to entitle defendant to a divorce. Sec. 452.010 RSMo 1949, V.A.M.S.; Mayor v. Mayor, Mo.App., 351 S.W.2d 810(3); Moore v. Moore, Mo.App., 337 S.W.2d 781(8).

We come now to the more sombre question of the children’s custody. The decision below was not in accord with the oft-quoted principle that the custody of children of tender years, particularly girls, should ordinarily be awarded to their mother. Thomas v. Thomas, Mo.App., 288 S.W.2d 689(9); Cadenhead v. Cadenhead, Mo.App., 265 S.W.2d 426(8). That principle pre-supposes that such custody will best serve the needs of the children, and where it does not, the father may properly be granted their custody. Tootle v. Tootle, Mo.App., 329 S.W.2d 218(6); Ragan v. Ragan, Mo.App., 315 S.W.2d 142(2). This is true even where the mother is a “fit and proper person to raise the child.” Ballew v. Ballew, Mo.App., 288 S.W.2d 24(6, 7). We have considered the evidence as it reflects on the welfare of the children. We have compared the concern of each parent for the children, and their respective abilities to rear the children so as to furnish them with moral and religious training, education and a well-ordered home. We believe that the trial court’s decision to grant custody of the children to the defendant is amply warranted by the evidence, was proper, and should not be disturbed. Ragan v. Ragan, Mo.App., 315 S.W.2d 142(2); Clark v. Clark, Mo.App., 306 S.W.2d 641(7); I. - v. B. -, Mo.App., 305 S.W.2d 713(8).

We believe the judgment was for the proper party and should be affirmed. It is so ordered.

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


author: WOLFE, Judge.

text:
    Thomas GREATHOUSE (Plaintiff) Respondent, v. Norman E. WOLFF (Defendant) Appellant.
    No. 31080.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 16, 1962.

      James W. Jeans, Gray & Jeans, St. Louis, for appellant.
    James F. Koester, St. Louis, for respondent.
   WOLFE, Judge.

This is an action for damages arising from personal injuries sustained by the plaintiff. The injuries occurred when the plaintiff was violently jerked forward, by a boat operated by the defendant, while engaging in water skiing. There was a verdict and judgment for $5,000 for the plaintiff, and after an unavailing motion for a new trial the defendant appealed.

The facts giving rise to this action come exclusively from the plaintiff and the defendant. They are brothers-in-law, and in July, 1960 they went to Lake Wappapello for a weekend in which they engaged in water skiing. Plaintiff Greathouse owned a fifteen-foot boat which was powered by a 70 horsepower motor. Greathouse, who was 32 years of age, six feet four inches in height and weighed about 260 pounds, was an experienced water skier. He described himself as an “expert amateur”.

He told in detail the manner in which the skiing was done. He stated that the skis are about five feet long and six inches in width, with a small finlike rudder or stabilizer toward the rear end and turning up slightly at the front. They have a rubber pocket into which the skier’s feet fit. The skier is pulled along over the water by a motor boat, to which a seventy-five foot line is attached. The line is attached to one corner of the stern of the boat, and on the skier’s end of the line is a wooden handle. This handle, which is about twelve inches long, is fastened in the middle to the tow line. The skier holds on to the handle with both hands and may release it at any time he wishes to do so. Neither the skier nor the skis are attached to the boat or the tow line by anything more than the skier’s grip on the tow line handle.

Preparing to get out of the water to an upright position upon the surface, the skier doubles his knees and puts his arms around both legs. The skis are mostly submerged, tilting forward and upward with about a foot of their front above the water. With the skier in this crouched position in the water, gripping the tow line handle, the boat is started forward with sufficient speed to pull the skier to the surface. Greathouse stated that he could ski in a conventional position behind a boat such as he owned at a speed of 35 miles per hour. He said that the conventional posture of skiing was with the arms outstretched and the knees slightly bent. Falls into the water are not infrequent, and it is a mild sensation to so fall. One may do so by releasing the rope handle.

Prior to the weekend venture in question, the defendant Wolff had never done any water skiing, and he had never before operated a boat towing a skier. Wolff was experienced in the operation of motor boats, having engaged in boating on weekends over a period of two years. He had never operated a boat with a 70 horsepower motor before. Greathouse instructed him in the proper way to ski and in the proper way to operate a boat pulling a skier.

They arrived at the lake on Saturday and spent about six or eight hours skiing. They alternated, with Wolff skiing part of the time and Greathouse operating the boat, and then Greathouse would ski and Wolff would operate the boat. Wolff had operated the boat for about three or four hours on the day before the accident, and for about the same time on the day that the accident occurred. Greathouse said that he saw nothing wrong with his operation of the boat until the time of his injury.

As to the accident, Greathouse said that the water was calm and there were no other boats in their immediate vicinity. He had been skiing along in a conventional fashion for about five or ten minutes, at a speed of 20 to 25 miles per hour, when the boat slowed enough for the line to slacken slightly. Then Wolff threw the throttle of the boat wide open without any warning, and Greathouse was jerked from the skis and thrown into the water. His arm bone was dislocated at the shoulder, causing some splinter fractures.

After accelerating the boat Wolff looked back to see how Greathouse was faring, and saw that “he was in the air”. He turned the boat, and when he came up to Greathouse he found him in a semi-conscious condition. He got him into the boat, and upon docking, he took him to a hospital. Wolff said to Greathouse, “I don’t know what I was thinking about when I threw the throttle wide open. I should have known better than to throw the throttle wide open.”

Wolff testified that the proper way to take slack out of the tow line is to slowly accelerate the speed of the motor. His explanation of the reason for the maneuver that he made with the boat, given at the trial, was that there were two racing boats ahead of him. They were about two blocks away, and he was about to enter their wake. His testimony was as follows:

“A. Well, actually there is a double set of wakes from a boat, each side produces a separate set and when I saw the first set I felt that it would be better to slow the boat down and hit them easy because of the angle of the wake. If you hit a wake at an angle the boat rolls on you and if you hit it too fast with a rolling boat you can do damage not only to the boat but you can throw the operator out of the boat and I slowed down to pull back just as I went into the wake. |
“Q. Did you earlier that day or the ■day before, had you ever encountered a wake such as this while you were towing Tom behind you? A. No.
“Q. Could you tell us what you did when you saw you were going to hit this wake at an angle and you were fearful of some of the things that might happen?
“A. Being afraid that I could possibly be tossed from the boat because of the size of the wake, I slowed the boat down and to do that I had to pull the accelerator back and as I went ■through the first set, the boat would pitch sideways on me slightly and in order not to lose Tom, I opened the throttle to keep Tom on board and while I was doing that the other boat would be going away from me and I had no • more fear of it.
******
“Q. In this particular instance, what were the particular factors that affected your judgment in moving the throttle forward when you felt the roll of the boat and the lessening of the pull from the back?
“A. I wanted to accomplish three things, one to keep from losing the boat or to keep myself from losing the boat and the other was not to lose the skier and that is why I accelerated.”

There was considerable medical testimony about the plaintiff’s injuries which need not be here considered, for no point is raised in relation to it. The first point raised by the appellant is that the court erred in giving Instruction No. 1, which is a verdict-directing instruction submitted by the plaintiff-respondent. It is as follows:

“The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence, the defendant was operating a motor boat on Lake Wappapello and that at said time the plaintiff was skiing behind the boat being operated by defendant at the end of a ski rope, if you so find, and if you further find that defendant caused the speed of said motor boat to be decreased by pulling back on the throttle, thereby permitting said ski rope to become slack and that while there was slack in said ski rope, ■defendant suddenly and without warning to plaintiff increased the speed of the said motor boat by pushing the throttle completely forward and to its maximum speed position, causing said line to become taut and to jerk plaintiff from said skis, thereby causing plaintiff to become injured, if you so find, and if you further find that defendant by suddenly increasing the speed of the boat failed to exercise ordinary care and that defendant was thereby negligent, and that plaintiff was in the exercise of ordinary care for his own safety and could not have known of said sudden increase of speed of said boat, in time thereafter to avoid said accident and injury to plaintiff, if you so find, and if you further find that defendant in the exercise of ordinary care could have known that a sudden increase of speed may jerk and injure the plaintiff, as shown in evidence, and if you further find that said accident and injury was a direct result of the negligence of defendant, then your verdict must be in favor of the plaintiff and against the defendant.”

It is asserted that the instruction omits any mention of the wakes of the boats that the defendant encountered, and that by reason of these wakes it was necessary to accelerate the speed of the boat in order to prevent himself from being pitched from the boat and losing the skier behind him. We are cited to the following cases which the defendant considers authority for the point raised. Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Evans v. Colombo, Mo.Sup., 319 S.W.2d 549; Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496.

We do not find these cases in any way analogous to the one here considered. The first case, Lloyd v. Alton R. Co., has to do with an instruction which assumed facts as to which there were valid inferences to the contrary and another instruction which was not supported by the evidence. The other cases involve action in an emergency situation which was raised as a defense in an automobile collision case; the skidding of an automobile raised as a defense; and divergent conflicting evidence as to the cause of an automobile collision.

The negligence here charged and submitted was that the defendant suddenly threw the throttle of the motor to full speed without warning at the time when the tow line was slack. There was no dispute about this. The defendant admitted it, and the above-quoted instruction covered it. The defendant did not plead or state in evidence that it was necessary, because of the wake of the other boats, to suddenly accelerate to full speed, and a gradual acceleration admittedly would have been harmless. He did not state that it was necessary to approach the wake at the angle of approach employed, or to approach it at all. He did not request any instruction, and none was given nor requested, which covered an emergency situation. The only defense set up by the instructions offered was that under certain facts, not in relation to the wake, the plaintiff could be found guilty of contributory negligence in failing to release the tow line.

We must hold the appellant here to the theory upon which he tried the case below. Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954; Huber v. Western & Southern Life Ins. Co. of Cincinnati, Mo.App., 341 S.W.2d 297; Jones v. Missouri Petroleum Products Company, Mo.Sup., 331 S.W.2d 573.

It is further asserted that Instruction No. 1 gave the jury a “roving commission” and is confusing. We do not think the instruction could have misled the jury in passing upon the simple issues presented to them, or that it invited them to consider negligence beyond the pleadings and proof.

We consequently hold that the giving of the instruction was not error.

The second point raised is that the court erred in permitting the plaintiff to testify that “the normal way to take slack out of the line” is to “ease the throttle slowly forward.”

This answer came upon redirect examination of the plaintiff after the defendant’s counsel, on extensive cross-examination, had qualified the plaintiff as an expert on skiing and had asked many questions about the manner in which it was done. It was a valid opinion by an expert, and there appeared to be no controversy whatsoever that it properly stated the normal way to take slack out of the line. The defendant himself testified that it was. We find this point to be without merit.

The last point raised goes to the final argument of plaintiff’s counsel. He made but slight mention of the plaintiff’s injuries in the first part of his argument, and when he started to speak of them in rebuttal, defendant’s counsel objected on the grounds that it was not proper rebuttal as nothing had been said about the injuries in the opening part of plaintiff’s final argument. This objection was overruled.

It is true that the Canons of Ethics provides (V.A.M.R. 4.22) that it is not candid or fair for a lawyer, where he has the opening and closing arguments, to mislead his opponent by “concealing or withholding positions in his opening argument upon which his side then intends to reply.” There appears to be no “concealing or withholding” with the intention to mislead here. The argument in rebuttal did not elaborate upon the injuries to any great extent or even suggest the amount of the verdict. The trial court has wide discretion in passing upon the effect and propriety of arguments by counsel. In the absence of an abuse of that discretion, we defer to the trial court. Votrain v. Illinois Terminal R. Co., Mo.Sup., 268 S.W.2d 838; Goldstein v. Fendelman, Mo.Sup., 336 S.W.2d 661. It may further be stated that there is no claim that the damages awarded are excessive. We find nothing prejudicial to the defendant by reason of the argument.

For the reasons stated, the judgment is affirmed.

ANDERSON, P. J., concurs.

RUDDY, J., not sitting.


author: DOERNER, Commissioner.

text:
    Norman CAPOBIANCO, Plaintiff-Respondent, v. YACOVELLI RESTAURANT, INC., Defendant-Appellant.
    No. 30990.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Alexander & Robertson, Ernest E. Baker, Louis A. Robertson, St. Louis, for defendant-appellant.
    Flynn, Parker & Badaracco, Joseph L. Badaracco, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

Defendant appeals from a verdict and judgment for $5,000 entered in favor of plaintiff for personal injuries and damages resulting from a fall on defendant’s premises.

Defendant, a corporation, operates a restaurant located on Big Bend Road in St. Louis County. Plaintiff, a self-employed refrigeration and air-conditioning service man, had been taking care of the defendant’s equipment for about ten years. On July 19, 1960, plaintiff went to the defendant’s restaurant to install a new water pump adjacent to the water tower which supplied water to the defendant’s two air-conditioning units. The water tower was located outdoors, in the southwest corner of a U-shaped court formed by the main brick building on the east, by two frame additions on the north and south, and by a picket fence on the west which ran from the northwest corner to the water tower. A stairway to the basement was located on the east side of the court, and so constructed that the walls of the stairwell were formed of the brick wall of the building on the east, and walls of eight inch concrete blocks on the south and west, with the concrete steps descending from the north. The steps and stairwell were entirely enclosed by wooden folding doors over the steps and by a wooden cover or platform over the remainder of the stairwell, such coverings having been constructed about five years previously. The doors were nailed shut, and the en-tranceway had not been in use for that period of time. The cover was from 3 to 4 feet wide, from the wall to the western edge, and was about a foot and a half or two feet above the ground. There was a window about 3 feet above the platform.

At the time plaintiff installed the water pump the restaurant had not yet opened for business for the day, and the only other person on the premises was one Hoppe, the porter, who was working inside. Plaintiff testified that after installing the pump, and aligning it visually, he desired to align it while it was in operation so as to achieve the least possible amount of vibration. There was no way to start the pump other than by throwing on the switch on either of the defendant’s air-conditioning units in the building, which automatically activated the pump. Plaintiff said that he did not want to go into the building and throw on the switch because of the possibility that the pump might tear itself apart before he could return and properly align it. He decided to attract Hoppe’s attention, and to ask him to throw on the switch. To that end, plaintiff testified, he stepped on the western edge of the platform over the stairwell, leaned forward with his left hand against the wall, and was about to knock on the window with his right hand when the boards forming the platform broke, causing plaintiff to fall about 7 to 8 feet to the bottom of the stairwell. Plaintiff said he had followed the same procedure on prior occasions when he wanted the porter to turn on a switch.

On direct examination by his counsel plaintiff was asked whether on any prior occasion or any other time before the fall he had ever been warned to stay off of the cover, and answered “Yes.” However, an objection was made to the question, and sustained. Plaintiff was then asked whether Mr. Yacovelli had ever talked to him about the areaway when he had been there on any prior occasion, and replied that he had been told “ * * * to be careful of it,” meaning the cover over the stairwell. On cross-examination his testimony regarding the warning given him was as follows:

“Q. There was no previous arrangement with Mr. Yacovelli with reference to using that cover as a step, was there ?
“A. No.
“Q. In fact, or as a matter of fact, Mr. Yacovelli had warned you about the use of that cover on a previous occasion, didn’t he?
“A. Yes.
“Q. And told you because of your —and I am not — I don’t mean to be personal — but your height and weight, that that well might not carry you, didn’t he?
“A. I don’t believe that was specifically brought out. He just warned me in the use of it.
“Q. And what did he say to you ?
“A. To be careful.
“Q. And what did you say to him?
"A. I don’t remember. I probably acknowledged it.
“Q. Sir?
“A. I probably acknowledged it. I don’t remember the words.
“Q. As a matter of fact, didn’t Mr. Yacovelli tell you not to step up on that because of your weight?
“A. I don’t remember it stated as such no.
******
“Q. Could you say the number of times you stepped up on there ?
“A. Normally any time I had to service the tower I would step up on this.
“Q. And the only time that Mr. Yacovelli was there when he saw you step on there, he cautioned you about using that, didn’t he?
“A. I don’t believe I was standing on it when Mr. Yacovelli cautioned me. He just cautioned—
“Q. Cautioned you not to use it?
‘‘A. That’s right.
“Q. You were not even using it then but he cautioned you not to use is, is that right?
“A. I think so.”

Plaintiff insisted that he had stood with both feet only on the edge of the cover that was supported by the concrete blocks, and denied that he had stepped on any other part of the cover or had started to walk over to the window.

On behalf of the defendant, its general manager, Dewey Yacovelli, testified that he could not remember when he advised the plaintiff not to step on the platform, but that he did recall he had told plaintiff “ * * to be careful, that it was not made to walk on and it might not hold his weight.” On cross-examination he stated that the warning had been given prior to the accident, on just one occasion because most times he wasn’t there when the plaintiff was. He was asked how he happened to know that it was necessary to warn plaintiff, and replied :

“It wasn’t built for that, it wasn’t built to be walked on. I mean, it was strictly for cover, and he is quite heavy and I just figured that it wasn’t the safest thing for him to do to be up there, so I warned him to stay off of it.”

Subsequently he testified that he had seen plaintiff stand on the cover “ * * * a few times,” but whether he had warned plaintiff the first time he saw him stand on it or the second time he couldn’t recall. He also stated that he stood on the cover on one occasion to repair a window broken by robbers, but that he had been quite careful not to step in the center section, and walked on the outer edge.

The opinion we have reached regarding defendant’s initial point on appeal makes it unnecessary to recite the nature and extent of plaintiff’s injuries and damages. That contention is that the court erred in overruling defendant’s motion for a directed verdict at the close of the evidence because the plaintiff had failed to make a submissible case. The parties differ as to the status of plaintiff on defendant’s premises at the place where he fell, plaintiff maintaining that he was a business invitee, and defendant arguing that plaintiff had become a mere licensee because he had exceeded the scope of the invitation extended to him by stepping on the stairwell cover after he had been told not to do so. Because of the view we take of the case it is unnecessary to rule this question, and for the purposes of this opinion we shall assume that plaintiff was a business visitor or invitee.

It is an elementary principle of the law of torts that there can be no actionable negligence in the absence of the existence of some duty on the defendant’s part owing to the plaintiff, which duty has been neglected or violated by the defendant, with the injury suffered by the plaintiff directly attributable thereto, and flowing therefrom. Reichholdt v. Union Electric Company, Mo., 329 S.W.2d 634; Hiltner v. Kansas City, Mo., 293 S.W.2d 422. What duty, then, does a possessor of land owe to his business invitee? The law governing that subject is clearly set forth in 2 Restatement of the Law of Torts, Sec. 343, p. 938, as follows:

“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
“(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
“(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
“(c) invites or permits them to enter or remain upon the land without exercising reasonable care
“(i) to make the condition reasonably safe, or
“(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.”

Thus the possessor of land owes his invitee the alternate duty to keep his premises in a reasonably safe condition or to warn him of the dangerous condition. But the possessor of land is not an insurer of the safety of his business invitee, Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303, and, “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.” 65 C.J.S. Negligence § 50, p. 541; Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 229, 74 A.L.R.2d 938; Dixon v. General Grocery Co., Mo., 293 S.W.2d 415; Small v. Ralston-Purina Co., Mo.App., 202 S.W.2d 533.

Thus the true .basis of a landowner’s liability is his superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Harbourn v. Katz Drug Co., supra; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468; Murray v. Ralph D’Oench Co., 347 Mo. 365, 147 S.W.2d 623; Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97. It was said in Stafford v. Fred Wolferman, Inc., supra, 307 S.W.2d l. c. 473:

“ * * * Such a defendant is not liable for injuries due to dangers which are obvious, or as well known to plaintiff as to defendant. And in such circumstances there is no duty to warn because the invitee has the information which would be conveyed by a warning. Wattels v. Marre, Mo.Sup., 303 S.W.2d 9; Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756; Cameron v. Small, Mo.Sup., 182 S.W.2d 565; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723.”

To the same effect see Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858; Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Stein v. Battenfield Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345; Goetz v. Hydraulic Press Brick Co., 320 Mo. 586, 9 S.W.2d 606, 60 A.L.R. 1064; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Mullen v. Sensenbrenner Mercantile Co., Mo., 260 S.W. 982, 33 A.L.R. 176; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Heidt v. Lauless, Mo.App., 348 S.W.2d 599. It logically follows that if the invitee is in fact warned of the dangerous condition no liability can be maintained against the possessor of the land. Murray v. D’Oench Co., 347 Mo. 365, 147 S.W.2d 623; Paubel v. Hitz, supra; Main v. Lehman, supra.

In the instant case plaintiff readily admitted, on both direct and cross-examination, that prior to his fall Yacovelli had warned him about the danger of standing on the cover. In fact, had no warning been given, it might well have been argued that the care which plaintiff claimed he exercised to stand only on the edge amply illustrated his awareness of the obvious danger inherent in stepping on the platform. But in any event, here plaintiff’s own evidence conclusively showed that the defendant was not guilty of any negligence because it had discharged its duty to plaintiff by warning him of the danger. Murray v. D’Oench Company, supra. Plaintiff attempts to escape the effect of the foregoing authorities by arguing, first, that he had continued to stand on the cover; and second, that he was not contributorily negligent in doing so. There was no evidence that Yacovelli or, anyone else in authority was aware that defendant was continuing to stand on the cover after being warned not to do so; and even if there had been, there was no obligation on defendant to repeat the warning each time plaintiff did so. Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 231, 74 A.L.R.2d 938. Secondly, as was said of a female business invitee in Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 657, 101 S.W.2d 723, 728, “ * * * whether she was careful or not, or whether her conduct was contributory negligence or not, makes no real difference, because there is no evidence to show that defendant was guilty of any negligence, and, even if plaintiff was careful, defendant is only liable if it was negligent. * * * ”

It follows that the court erred in overruling defendant’s motion for a directed verdict, and that the judgment should be reversed. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is reversed.

ANDERSON, P. J., and WILLIAM M. KIMBERLIN and MARSHALL CRAIG, Special Judges, concur.


author: GEORGE P. ADAMS, Special Judge.

text:
    F. Lyman DAVIS, Plaintiff-Respondent, v. I.A. LONG, Fielding P. Childress, Herman Wilier, Joseph L. Glynn, and Raymond R. Tucker, as Members of the Board of Police Commissioners of the City of St. Louis, Missouri, Defendants-Appellants.
    No. 31056.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Thos. J. Neenan, Aubrey B. Hamilton, and Eugene P. Freeman, St. Louis, for appellants.
    Morris A. Shenker, Bernard J. Mellman, Murry L. Randall, St. Louis, for respondent.
   GEORGE P. ADAMS, Special Judge.

On October 11, 1955, plaintiff-respondent, then a Lieutenant with the City of St. Louis Police Department, was suspended from duty following the return of an indictment charging him with accepting bribes. In early October, 1956, he was acquitted of these charges in the Circuit Court. On October 15, 1956, defendants-appellants, the then Board of Police Commissioners of the City of St. Louis (hereinafter referred to as the “Board”) ordered plaintiff restored to duty without loss of rank, but ordered that plaintiff forfeit his wages during the period of his suspension. On October 16, 1956, plaintiff returned to duty on the afternoon watch.

On November 14, 1956, plaintiff filed his Petition for Review in the Circuit Court of the City of St. Louis, seeking a reversal of the Board’s decision of October 15, 1956, complaining that it was “arbitrary, unreasonable, void and invalid” because: (1) No charges were filed against plaintiff; (2) No hearing was held; (3) The decision was unsupported by any probative, competent or relevant evidence; (4) It was an abuse of the Board’s discretion; (5) It was without due process of law and a denial to plaintiff of equal protection of the law; and, (6) It was violative of Section 536.090 RSMo 1949, V.A.M.S., in that it did not include and was not accompanied by any findings of fact or conclusions of law.

On November 30, 1956, the Board filed a Motion to Remand the cause to it so that a formal hearing and full trial could be held by the Board. Plaintiff filed a Motion to Strike the Board’s Motion to Remand and to require the Board to file the record of proceedings relating to him.

The Motion to Strike was based on plaintiff’s contention that the Motion to Remand sought to “prevent” the plaintiff “from having a full and adequate review of the decision of the Board” and sought to “prevent the Court from hearing all the evidence and rendering a decision thereon, all in accordance with the provisions of Section 536.140, R.S.Mo. 1949.”

The motion to require the filing of the “record of proceedings” was based on the provisions of Section 536.130, RSMo 1949, V.A.M.S.

In response to an order of court “requiring defendants to submit to the court a written statement that no record of a hearing exists concerning a controversy” between plaintiff and the board, the board filed its “return” to said order, stating that “no hearings in the sense contemplated by Section 536.060, Revised Statutes of Missouri, 1949, in a contested case before an administrative body or board” was had and no such record existed.

On January 25, 1957, plaintiff withdrew his motion to require the Board to file record of proceedings, and a hearing was held on plaintiff’s Motion to Strike the Board’s Motion to Remand. On October 31, 1957, said Motions to Strike and to Remand were overruled.

On December 18, 1957, plaintiff’s Petition for Review was heard and taken under advisement. On April 3, 1961, the trial court found that the board’s decision was “rendered without the institution of any charges or specifications against the plaintiff, without a hearing or the reception of any evidence, and without the opportunity to be heard,” and that the decision “was and is unsupported by competent evidence upon the whole record,” and ordered that the decision be “reversed”.

Two witnesses testified at the hearing below. Colonel James E. Thompson, Inspector of the St. Louis Metropolitan Police Department, was called as a witness for the board. Plaintiff testified in his own behalf.

Prior to October, 1955, plaintiff had been indicted by a grand jury for accepting bribes from a prostitute in his district. On October 11, 1955, he was suspended from duty as a result of the indictment. The specific grounds for the suspension are not disclosed by the record. Apparently the suspension was not contested.

In early October, 1956, plaintiff was acquitted of the charges, by a jury. Around the 5th, 6th or 7th of October, 1956, plaintiff contacted Thompson to find out how to be reinstated. Thompson told him that the Board would have to make a decision as to whether plaintiff could go back to work or not. Prior to October 8, 1956, Thompson had presented to the board a report, including a transcript of the criminal proceedings against plaintiff, and also police reports concerning “alleged” activities of plaintiff. On October 8, 1956, Thompson was summoned before the board and instructed to tell plaintiff “that he could make application for reinstatement and it would be considered by the Board and probably he could be reinstated without losing rank in view of the fact that he had been acquitted in court, but that the Board felt that there was enough there to show that he had probably been neglectful and that he probably wouldn’t be paid for the time under suspension.” On the 9th, Thompson called plaintiff into his office and “informed him of what the Board had said.” Plaintiff said he wanted to consult his attorney and was told that he should talk to his attorney and his family and make up his mind as to what he would want to do. During this meeting Thompson also told plaintiff that the board would take his application into consideration with the probability that without a trial they would restore him as a Lieutenant but without pay; that they would deny pay because there had been some “neglect and inefficiency on his part.” Thompson also told plaintiff that he could have a trial.

Plaintiff talked with his attorney, and on October 12th he advised Thompson that he would have his application for restoration to duty in the morning mail. Thompson asked him what his attorney had said, and plaintiff said he stated “it was okay”. On October 13th, Thompson received, through department mail, plaintiff’s application to be restored to duty, reading:

“Chief of Police, Jerimiah O’Con-nell.
“Sir: I respectfully request that I be assigned duties as soon as possible.
“(signed) Lieutenant Lyman F. Davis.”

The application was given to Chief O’Connell, who took it before the board.

Pursuant to instructions from Thompson, plaintiff came to Thompson’s office October 15th. The board was meeting that day and Thompson told plaintiff that the commissioners might want to talk with him. Plaintiff was not called before the board. Late in the afternoon, Chief O’Connell told Thompson to tell plaintiff that “the Board will reinstate him as a Lieutenant. He will be assigned to duty in the First District, but he won’t be paid for the time under suspension.” Thompson told plaintiff what Chief O’Connell had said. Plaintiff said that he didn’t like “to lose that pay.” Thompson advised him that the board “feels that there has been some neglect and inefficiency there on your part.” On direct examination relative to the 15th of October, plaintiff was asked if Thompson told him that the board had made a decision or statement with regard to his pay, to which plaintiff answered: “No, I don’t recall that at all.” Later, on direct examination, plaintiff testified: “I believe it was on the 15th, Colonel Thompson informed me that I was going to go back to work but I was not going to be paid for the time of my suspension.” On cross examination plaintiff testified as follows:

“Q. Now, at any time prior to the 15th (of October, 1956)- — -I mean prior to your making this written statement which is in evidence here, marked Defendant’s Exhibit 2 (application for reinstatement) — did you know that you were going to be deprived of any pay? A. I don’t believe I was informed of that definitely until the evening of the 15th, that I wasn’t to be paid.
“Q. You had some knowledge of it prior to that? A. Yes, Colonel Thompson had mentioned that the Board was considering that.”

Thompson testified that he had plaintiff’s badge and gun but told plaintiff to go on home and call his attorney and talk to his wife, and if he wanted to “go back to work under those conditions” to come in in the morning and get his gun and badge. Plaintiff testified that Thompson tried to get his badge and gun that night, but the office was closed; that he was told to come back in the morning and he would be given his badge and gun and was to report for afternoon watch in the First District. Thompson testified further that at this time he told plaintiff: “If you don’t like it, you can have a trial”; also that he gave plaintiff a three-page report in which Thompson pointed out what he, Thompson, considered plaintiff’s deficiencies; that plaintiff took the report. Plaintiff did not deny or contradict Thompson’s testimony that he was told he could have a trial if he didn’t like the action of the board or that he wasn’t told to talk to his wife and attorney; nor did he deny receiving the three-page report on the 15th.

On October 16th, 1956, plaintiff came to Thompson’s office and Thompson asked: “Do you want to go to work?” Plaintiff replied: “Yes.” Thompson gave him his gun and badge and he started to work on the afternoon watch. On that same day, Thompson gave plaintiff a 23-page report, which he had submitted to the board. On the same day, plaintiff’s Application for Reinstatement was returned to Thompson with a notation in O’Connell’s handwriting, as follows: “Okay by Board, October 15, 1956. Restored to duty October 16, 1956. Transferred from Twelfth District to First District October 16, 1956.”

On this appeal, the board contends that the information contained in Thompson’s report to the board justified its finding that plaintiff was guilty of inefficient police conduct and in penalizing him by forfeiture of pay. This report was offered in evidence by the board but was excluded upon objection by plaintiff. In its motion for new trial, this point was not preserved by the board and, of course, is not before us now.

Our Administrative Procedure and Review Act defines a “contested case” as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” Section 536.010(3), RSMo 1949, Amended Laws 1957, page 748, effective August 29, 1957, V.A.M.S.; Civil Rule 100.01(3), effective April 1, 1960, V.A. M.R.

Section 536.060, RSMo 1949 until amended by Laws 1957, page 748, effective August 29, 1957, V.A.M.S., provided:

“Prior to the final disposition of any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice, but this shall not preclude the informal disposition of such cases by stipulation, consent order, or default, or by agreed settlement where such settlement is permitted by law.”

Effective August 29, 1957, Section 536.063 et seq. RSMo 1959, V.A.M.S., provided for the procedure in a “contested case,” by providing for pleadings, notices, hearings, etc.

Also effective August 29, 1957, Section 536.060, RSMo 1959, and effective April 1, 1960, V.A.M.S., Civil Rule 100.02, provided that nothing contained in Chapter 536 or Civil Rule 100 should “preclude the informal disposition of contested cases by stipulation, consent order, or default, or by agreed settlement,” and further, that nothing in said chapter or rule should be construed “(3) to prevent the waiver by the parties * * * of procedural requirements which would otherwise be necessary before final decision.”

The board contends that its action in forfeiting plaintiff’s pay was not such an action as required a hearing, saying that Section 84.150 (all statutory references hereinafter, unless otherwise stated, are to RSMo 1959, V.A.M.S.) requires a hearing only where the removal of an officer is sought. In other words, it takes the position that the enforcement of the forfeiture of pay is not a “contested case” within the definition of Sections 536.010(3) and 536.-060.

This court has ruled on this point adversely to the board in Scism v. Long et al., Mo.App., 280 S.W.2d 481, where it was held that a St. Louis City Police Officer acquires a right or title to the office “and emoluments” which are within Section 536.-010(3). In that case, a police officer was reduced in rank from Sergeant to Turnkey and suspended without pay for six months. He was not “removed” from office as the board contends Section 84.150 must be limited to. Rank and compensation for services are “emoluments” of an office and are legal rights and privileges of the office within the meaning of Section 536.010(3). Webster’s New International Dictionary, Second Edition, Unabridged, “Emolument”, page 838; Sellers v. School Dist. of Upper Moreland, Tp., 385 Pa. 278, 122 A.2d 800, 801; State v. Dishman, 334 Mo. 874, 68 S.W.2d 797, 798(1).

Forfeiture of plaintiff’s pay constituted a contested case, and prior to “final disposition” plaintiff was entitled to a hearing unless the matter was disposed of informally by “stipulation, consent order, or default, or by agreed settlement,” or plaintiff waived his right to a hearing.

Although similar provisions are found in Administrative Law and Procedure Acts of several states, able counsel for the parties have apparently been unable to find where the provision for “informal disposition of such cases by stipulation, consent order, or default, or by agreed settlement” has been interpreted by the courts. An exhaustive, independent research on our part has likewise been unfruitful.

However, in this case the facts and circumstances clearly show that,the question of plaintiff’s reinstatement to duty was disposed of informally by an “agreed settlement”.

Following his acquittal of bribery charges, plaintiff apparently felt that he was then eligible to return to duty. Upon his first inquiry about returning to work, however, he was made aware of the fact that his acquittal did not automatically restore him to duty, as he was told by Thompson that the board would have to make a decision as to whether or not he could go back to work.

After receiving Thompson’s feport, including a transcript of the criminal trial and copies of police reports concerning plaintiff’s alleged “activities” on or prior to October 8, the board had arrived at a tentative conclusion that because plaintiff had been acquitted of bribery charges, he should be restored to duty without loss or reduction of rank, but that he had probably been guilty of neglect and inefficiency, so he should not be paid for the period of his suspension. On October 9, Thompson advised plaintiff of the board’s “feeling” and told him that if he desired to be reinstated without a trial he could be restored as a Lieutenant but without pay. Plaintiff was also told he could have a trial. This was a clear “offer” to compromise which plaintiff could accept “without a trial”; or which he could reject and stand trial. Upon Thompson’s suggestion, plaintiff consulted his attorney.

At this point, plaintiff knew that the reason for the board’s conclusion that he should forfeit his pay was because it “felt” that he had been guilty of neglect and inefficiency, notwithstanding the fact he was acquitted of the bribery charges. He, his attorney, and his family were thereupon confronted with the choice of accepting the board’s offer and returning to work immediately and continuing his career as a Lieutenant and lose a year’s pay, or refusing reinstatement on the conditions of the offer and standing trial. If he chose the latter course, he could end up with: (1) Full clearance, retention of rank and back pay; or (2) Dismissal from the force, ending his career and losing back pay, too; or (3) Reduction in rank, forfeiture of pay, fine, further suspension or “other appropriate action” or the combination of one or more of them. Section 84.170, RSMo 1959; Section 1, Rule 15, Manual, Department of Police of St. Louis, Mo.

Whether the “report” which the board had before it and upon which it reached its tentative conclusions would, if offered at a formal hearing, be objectionable as containing “hearsay”, or, as a matter of fact, whether the information contained was true or false, is not relevant here. If it was. false, or if it was objectionable as containing hearsay, plaintiff did not have to accept the “offer” but could require the proof of' the basis for concluding he was “neglectful” or “inefficient”. He advised with his. very able counsel and they concluded, for reasons best known to them, that it would1 be “okay” to apply for reinstatement, and to. accept the offer upon the conditions stated.

On October 12, plaintiff “accepted the offer” and placed his Application for Reinstatement in the department mail, which was received by Thompson on October 13.

Thereafter, on October 15, acting on-plaintiff’s acceptance of its previous offer, the board entered its order reinstating plaintiff to duty as a Lieutenant and requiring plaintiff to forfeit his pay for the period of his suspension.

On October 15, when plaintiff was told of the board’s action, he was given a three-page report of what was considered his “deficiencies” and again told to go home and call his attorney and talk to his wife. He was also told that if he didn’t like “it” (the board’s action) he could have a trial; or if he wanted to go back to work under the conditions stated, he should report for duty the next morning.

With full knowledge of the conditions under which he was being reinstated, the reasons for losing his pay, and after at least one consultation with counsel, plaintiff returned to duty. Plaintiff’s contested case was thereupon disposed of informally by an agreed settlement by which plaintiff was bound.

All matters having been settled by agreement, plaintiff was not entitled to a formal hearing and is not now entitled to have the action of the board reviewed.

Without retracting from or in the least tempering our finding that there was an informal disposition by agreed settlement herein, we cannot help but observe that by his actions plaintiff has waived such “procedural requirements which would otherwise be necessary before final decision” as specifically authorized by Section 536.060 as amended by Laws of 1957 at page 748 (or as would have been recognized as a common law waiver without such specific statute). These “procedural requirements” included the procedure for formal charges and trial provided for in Rule 15 of the Police Manual.

In support of the trial court’s action, plaintiff asserts that, in any event, whether his return to work constituted an acceptance of the condition that he forfeit his pay was a question of fact for the trial court.

The only testimony inconsistent with the facts as hereinbefore set out is the conclusion of plaintiff that he had not “agreed” that he be found guilty by the board, and that he would forfeit his pay. Plaintiff was asked: “I will ask you whether you ever agreed, Lieutenant Davis, either formally or informally, that you be found guilty by the Board of Police Commissioners and that you would forfeit your pay?” To which plaintiff answered: “No.” In addition to the fact that this was a conclusion of the witness (the board’s objection to it was overruled), it was so contrary to all the undisputed evidence in the case that, had it been considered by the trial court, it had no probative value. As it is our province on this appeal from a case tried by the court (Section 510.310, RSMo 1959; Civil Rule 73.01; Ellis v. State Department of Public Health and Welfare, 365 Mo. 614, 285 S.W.2d 634, 641(17) ), we disregard that testimony as inadmissible. There was no “question of fact” for the trial court.

Finally, plaintiff contends that “anything short of an express agreement” does not meet “the. requirement of Section 536.-060 for disposition of a contested case by ‘agreed settlement.’ ”

We believe that to engraft, by judicial interpretation, such a limitation on the clear language of the Legislature and the Supreme Court does violence not only to judicial interpretation, but to the spirit and purpose of administrative procedure. Generally speaking, “administrative procedure is, and should be, simpler, less formal and less technical than judicial procedure. Certainly it should not be made more so in absence of a clear and specific mandate from Congress.” Sherwood Bros., Inc. v. District of Columbia, 72 App.D.C. 155, 113 F.2d 162, 165(4); Albertson v. Federal Communications Commission, 87 U.S.App.D.C. 39, 182 F.2d 397, 401(5); 73 C.J.S., Public Administrative Bodies and Procedure, § 75, page 401.

It is inconceivable that a court of law, with its trained lawyers and judges, would find it necessary to engraft such a limitation on the right to informally dispose of a matter before it by an “agreed settlement”. Laymen should not certainly be held to a higher “standard of legal precision.” Lowenstein v. Newark Bd. of Ed., 35 N.J. 94, 171 A.2d 265.

Plaintiff’s returning to work under the conditions of which he was aware was as reliable an “acceptance” of the offer of reinstatement by the board as an express oral or written “I accept.”

A case “disposed of by stipulation, consent order or agreed settlement” is specifically excepted from the requirement of Section 536.090 that a decision in a contested case be accompanied by findings of fact and conclusions of law. It was, therefore, unnecessary for the board to have made “findings of fact and conclusions of law.”

The judgment of the trial court is reversed, and the decision of the defendant board is affirmed.

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

RUDDY, J., not participating.