text:
    Rosella BRAUN, Appellant, v. Carl HOFFMEISTER, Respondent.
    No. 49279.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.

      Jack H. Ross, Coleman, Ross & Cekov-sky, Clayton, William L. Mason, Jr., St. Louis, for appellant.
    F. X. Cleary, C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   HOLLINGSWORTH, Judge.

Plaintiff sought damages in the sum of $25,000 for personal injuries sustained when an automobile in which she was .a guest collided with an automobile driven by defendant at the intersection of Sulphur Avenue, a north-south street, and Potomac Street, an east-west street, in the City of St. Louis. Trial of the case to a jury resulted in a verdict for defendant. She appealed from the ensuing judgment, assigning error in Instruction No. 3 given in behalf of defendant.

The collision occurred in a residential section of the city about 10 a. m., on January 7, 1961, a clear, dry day. Plaintiff was riding in the front seat of the automobile owned and operated northward on Sulphur Avenue by William Henry Brown. The automobile with which Mr. Brown’s car collided was owned and operated eastward on Potomac Street by defendant. Both streets are 36 feet wide, paved and practically level at the intersection and on each side thereof. No traffic controls are posted at the intersection.

Plaintiff’s testimony was that she did not see or sense the impending collision until it occurred.

According to Mr. Brown, aged 76 at trial time, he was driving 15 to 20 miles an hour as he drove northward on Sulphur to the intersection. When his car was 15 or 20 feet south of the intersection, he first saw defendant’s car, eastbound on Potomac, then 50 or 75 feet west of the intersection. Mr. Brown “relaxed on the accelerator.” But, as he “got a little further up”, he noticed that defendant did not seem to be checking his speed, so he “slapped on the brakes” and veered slightly to his right. The left front end of his car came into contact with the right side of defendant’s car, at its right front door. Mr. Brown further testified that his car had practically stopped when the collision occurred; that defendant’s car was traveling about 35 miles an hour when he first saw it and that it did not noticeably slow prior to the collision.

According to defendant’s evidence, he, when one half block west of the intersection, was driving at a speed of about 20 miles an hour, which he reduced to about 15 miles an hour when he was about 10 feet west of the intersection. At that point he looked to his right down Sulphur to see if anyone was coming. He could see south down Sulphur between 60 and 75 feet, saw nothing coming, “stepped on the pedal” and started across the intersection. When he was 3 or 4 feet from the east curbline of Sulphur and 3 or 4 feet from the south curb-line of Potomac, “I got banged and that was it.” He did not think that he ever looked to his right but the one time before he entered the intersection and that was when he was 10 feet west of it; and he did not see Mr. Brown’s car as it came up to or entered the intersection, or during the time that he, defendant, traveled approximately 30 feet into it before his car was struck by the Brown car. On cross-examination, defendant said that before he “arrived at the corner [he] looked both ways” and did not see Mr. Brown coming.

Instruction No. 3, given in behalf of defendant, and of which plaintiff complains, reads as follows:

“The Court instructs the jury that if you believe and find from the evidence that as defendant, Carl Hofmeister, drove his automobile eastwardly on Potomac Street and as he neared Sul-phur Avenue, he looked in both directions but saw nothing approaching from his right, and if you further believe and find that he then continued across the intersection and when close to the east curb of Sulphur Avenue his automobile was struck in the side by an automobile operated by William Henry Brown, and if you further believe and find that the defendant, Carl Hoffmeister, was exercising the highest degree of care in keeping a lookout then, and in such event, plaintiff is not entitled to recover and you must find your verdict for the defendant.” (Emphasis ours.)

The instruction hypothesizes three basic findings by the jury which, if by the jury found in the affirmative, it was required to return a verdict for defendant:

1. That as defendant “neared Sulphur Avenue” he looked in both directions and saw nothing approaching from his right;

2. That he then continued across the intersection and was struck by the Brown car near the east curbline of Sulphur; and

3. That he was exercising the highest degree of care in keeping a lookout then.

Does the third hypothesized finding refer only to the second hypothesized finding or does it refer to both the second and the first? We are inclined to the view that the jury would understand the instruction as written to declare that if, as defendant neared the intersection, he looked in both directions and saw nothing approaching from the right, the duty of defendant to exercise the highest degree of care in keeping a lookout arose only after he “continued across” the intersection, without having seen the Brown car as he neared the intersection. If the jury reasonably could so interpret the instruction, as we think it could, then it well may have returned a verdict for defendant based upon the mere finding that defendant “looked” in both directions as he neared Sulphur, however casual or nonvigilant that “look” may have been, and saw nothing approaching from his right, and the further finding that defendant thereupon continued across the intersection to the point of collision, only then exercising the highest degree of care in keeping a lookout. The true meaning of the instruction, as phrased, is calculated (without design, of course) to be confusing even to a person with legal experience; certainly, it could be misleading to a lay jury..

Consideration of another phase of the instruction shows it to be clearly erroneous. By hypothesizing a finding that, as defendant “neared Sulphur Avenue, he looked ini both directions but saw nothing approaching from his right”, the instruction made defendant’s conduct and the extent and result of his having “looked in both directions” and having seen “nothing approaching from his right” the standard of care-required of motorists, irrespective of whether, in the exercise of the highest degree of care, he could and should have seen the approaching Brown car before entering the intersection in dangerous proximity to it.

The degree of care of a motorist upon the highway, as required by statute, § 304.010 RSMo 1959, V.A.M.S., imposes-upon the operator of motor vehicles upon: the streets and highways of this state the-continuous duty to exercise the highest degree of care at all times and all places thereon to keep a lookout for persons-thereon and in every other respect. Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116, 123-124[ 11-16]; Faught v. Washam, 365 Mo. 1021, 291 S.W. 2d 78, 82[4], To fulfill that duty, the motorist is required to look in such an observant manner as to enable him to see what a person in the highest degree of care for the-safety of himself and others would be expected to see under similar circumstances. Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114, 118[S]. ‘“Where one is charged with the duty to look and to look is to see, he must he held to have seen what looking would have revealed.’ ” Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 76 [5-6] ; Witt v. Peterson, Mo., 310 S.W.2d 857, 860 [1-4]. There is nothing in the record to show that had defendant, in the exercise of the highest degree of care, continued at a speed of 15 miles an hour, which he was traveling when 10 feet west of the intersection, at which point he took his first and only look to the right, and thereafter again looked to his right immediately before or at the time of entering the intersection, he, in the exercise of the highest degree of ■care, could not have seen the Brown car in time to have avoided the collision. Yet, instruction No. 3 absolved defendant of negligence if he looked only once to the right as he “neared” the intersection; it failed to advise the jury that the highest degree of care required defendant not only to keep a lookout ahead and laterally for automobiles with which he might come into collision, but also to see and avoid collision with any automobile which, in the exercise of highest degree of care, he could have seen and avoided. It should also be here noted that the phrase “highest degree of care”, as used in the statute, was not defined in any instruction given the jury.

Defendant’s contention is that instruction No. 3 must be read in connection with all other instructions and particularly plaintiff’s instruction No. 1, of which (defendant contends) instruction No. 3 is an affirmative converse; and that as a whole charge, the instructions are harmonious, clear and complete and do not constitute an erroneous charge.

Instruction No. 1, in material part as herein emphasized, reads : “ * * * and if you further find that the defendant by the exercise of the highest degree of care in keeping a lookout ahead and to his right for northbound traffic on Sulphur Avenue could have discovered the automobile in which plaintiff was riding in time thereafter, by the exercise of the highest degree of care, to have avoided the collision described in evidence; if you so find, and if you further find that the defendant failed to keep such a lookout and that in so failing the defendant did not exercise the highest degree of care and was guilty of negligence, if you so find; and if you further find that such negligence directly and proximately caused said collision and injury to plaintiff then your verdict should be in favor of the plaintiff, * * The portion of instruction No. 1 above emphasized not only points up the erroneous and misleading phrasing of instruction No. 3, it sets forth an essential element of the exercise of the degree of care required of a motorist, thereby revealing one basic aspect wherein instruction No. 3 falls short of being a true converse of instruction No. 1. Thus instruction No. 3 is in irreconcilable conflict with plaintiff’s unchallenged instruction No. 1.

Our conclusion is that instruction No. 3 was prejudicially erroneous.

The judgment is reversed and the cause remanded.

All the Judges of the Division and STONE, Special Judge, concur.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    Pauline Smith McINTOSH, Appellant, v. CONNECTICUT GENERAL LIFE INSURANCE CO., et al., Respondents.
    No. 49548.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.

      Welker & Young, Web A. Welker and Linus E. Young, Portageville, for appellant.
    Ward & Reeves, Caruthersville, for respondents.
   COIL, Commissioner.

This is an appeal from a judgment dismissing a suit to partition real estate. Appellant, Pauline McIntosh, was a niece of W. J. McMillen who owned land located in New Madrid County and who died intestate. On November 3, 1961, the Mc-Millen administrator, acting under the provisions of sections 473.460 and 473.487, filed a petition in probate court for an order to sell the real estate owned by decedent for these reasons:

“Petitioner states that the sale of said real estate is necessary for the best interest of the estate in that the real estate is in different tracts and not contiguous and there are so many different fractional interests that the same can never be divided in kind and for that reason it is to the best interest of the estate and all of the heirs that said real estate be sold by your Administrator as provided by statute.

“Petitioner further states that it would be most advantageous to the estate that said real estate be sold under the original inventory and appraisement at private sale for cash.”

The probate court ordered a hearing on the petition for November 20, 1961, and notice thereof was given to all proper parties. When the matter was reached on the 20th, Mrs. McIntosh, through her attorney, sought a continuance and, after discussion between counsel, the hearing was continued to December 4, 1961. Later, on the same day (November 20), Mrs. McIntosh filed a suit to partition the same real estate as that described in the administrator’s petition to sell. Respondent Myrtle B. Mc-Millen and the administrator of the Mc-Millen estate (not a party to the partition suit) filed their motion to dismiss on the ground, inter alia, that the circuit court was without jurisdiction, in that prior jurisdiction over the land in question had been acquired by the probate court. After a change of venue and on March 3, 1962, the parties adduced evidence in support of their respective positions on the motion. On May 16, 1962, the court entered its judgment dismissing the partition suit on the ground that by reason of the petition for an order to sell theretofore filed by the McMillen administrator, the Probate Court of New Madrid County had acquired jurisdiction and that consequently the circuit court was without jurisdiction to entertain a subsequently filed suit to partition the same land.

Section 473.460 is, in pertinent part:

“Purposes for which property may be sold, mortgaged, leased or exchanged.— 1. Real or personal property belonging to an estate may be sold, mortgaged, leased or exchanged under court order when necessary for any of the following purposes:

“(1) For the payment of claims allowed against the estate;

“(2) For the payment of any allowance made to the surviving spouse and minor children of the decedent;

“(3) For the payment of any legacy given by the will of the decedent;

“(4) For the payment of expenses of administration, including court costs;

“(5) For the payment of any gift, estate, inheritance or transfer taxes assessed upon the transfer of the estate or due from the decedent or his estate;

“(6) For any other purpose in the best interests of the estate

* * * * * ⅜

“4. Real estate shall not be sold, mortgaged or leased under this section except for the payment of claims, taxes, expenses of administration including court costs, legacies, the statutory allowances to the surviving spouse or unmarried minor children, the shares of pretermitted heirs or the share of the surviving spouse who elects to take against the will, in any case where the heirs or devisees to whom such real estate passed by descent or under the will, have sold, mortgaged or leased or otherwise transferred such real estate at a time when no order was in effect under section 473.263 for the taking of possession of real estate by the executor or administrator.”

Appellant contends that subparagraph 6 of foregoing section 473.460 is unconstitutional in that the authority there granted exceeds the jurisdiction vested in probate courts by Section 16, Article V, Missouri Constitution 1945, V.A.M.S., and further that said subsection is void because it is so “indefinite, meaningless, vague and uncertain” as to be inapplicable to any conceivable set of circumstances upon which it was intended to operate.

Section 16, Article V, Missouri Constitution 1945, is: “There shall be a probate court in each county with jurisdiction of all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians, and the sale or leasing of lands by executors, administrators, curators and guardians, and of such other matters as are provided in this constitution.”

Respondents contend that the foregoing section expressly grants probate courts jurisdiction “of all matters pertaining to * * * the sale or leasing of lands by executors, administrators” and others, and, consequently, that section 473.460, subpara-graph 6, vests either exclusive jurisdiction in the probate court to sell real estate for the best interests of the estate, or concurrent jurisdiction, under certain circumstances, with the circuit court; that in the latter event the probate court under the facts here, having first acquired jurisdiction, retained it to the exclusion of the exercise of jurisdiction by the circuit court.

Section 473.460, as set forth above, provides that real property belonging to an estate may be sold under court order when that action is necessary for six specified purposes. The first five purposes are specific instances in which clearly it might be necessary to sell, mortgage, lease, or exchange real estate, viz., for the purposes of (1) paying allowed claims, (2) paying an allowance to a surviving spouse and minor children, (3) paying legacies under a decedent’s will, (4) paying expenses of administration, including court costs, and (5) paying specified taxes. Purpose number 6, read in connection with the presently relevant portions of paragraph 1 of the section, provides that real property belonging to an estate may be sold under court order when that sale is necessary to accomplish some purpose in the best interests of the estate other than or in addition to any of the purposes specified in subparagraphs 1 to 5 inclusive.

Appellant, as we have noted, asserts the unconstitutionality of subpara-graph 6 on the ground heretofore stated but she has failed to develop that contention in her argument. See Maus, Probate Law and Practice, Vo 1. 4, §§ 1061-1074, pp. 298-306. No reason is immediately apparent which would lead us to conclude that Section 16, Article V, Constitution of Missouri 1945, does not grant authority to the legislature to validly invest the probate courts with jurisdiction by virtue of section 473.-460 to order the sale, lease or exchange of real estate, when necessary for any of the purposes there listed, including the purpose stated in subparagraph 6. (We are assuming for present purposes that facts or circumstances might exist which would make it necessary for the probate court to sell real estate for the best interests of "the-estate” as such, although we note in passing that we have been unable to hypothesize such a situation, i. e., the existence of facts- or circumstances which would make it necessary for the probate court to sell real estate for the best interests of an estate-for some purpose not set forth in or necessarily a part of one or more of the purposes specified in the first five sub-paragraphs of section 473.460.) We find it unnecessary in this case, however, to pass on the constitutional issue raised. Consequently, taking into account the fact that the question has not been fully briefed, we deem it advisable to adhere to the rule that courts generally do not pass on constitutional issues if the case may be properly disposed of otherwise. City of St. Joseph v. Roller, Mo., 363 S.W.2d 609, 612 [6],

Sufficient for the proper disposition of this case is the fact that in our view neither reason asserted in the administrator’s petition for an order to sell, assuming either or both were fully substantiated at a hearing, would constitute a situation in which there could be a necessity for the sale of the real estate in “the best interests of the estate.”

We note again that the administrator’s stated reasons were, first, that it was in the best interests of the estate to sell the land because there were so many fractional interests that it could not be satisfactorily divided in kind and, secondly, that it would be advantageous to sell the land at a private sale for cash. -Respondents on this appeal rely only upon the second of the stated reasons and, in support thereof, point to opinion evidence at the hearing on the motion to dismiss to the effect that more money would be received at a private sale for cash than at a public sale pursuant to an order of partition by the circuit court.

We make clear at this point that there is no averment in the petition for order to sell, nor was there any suggestion in the evidence at the hearing on the motion to dismiss, nor is there any contention in this court that any purpose other than obtaining a greater price for the real estate would be accomplished by the sale of the real estate by order of the probate court.

We are mindful of the fact that section 473.460 is a part of the Probate Code contained in the chapter entitled “Administration of Decedents’ Estates.” It seems apparent that the provisions of that chapter, including the provisions of section 473.460, deal with the administration of estates as separate entities, distinct and apart from the individuals who are the decedent’s heirs or distributees. Thus while, broadly speaking, it might be said that whatever benefits distributees, in one sense, might be in the “best interests of the estate,” it seems clear to us that subparagraph 6 of section 473.460 does not and cannot apply to or have any connection with situations such as the present, involving questions or matters which are of concern only and exclusively to those who have inherited real estate direct from their intestate. Neither the fact that it is desirable to sell land belonging to heirs because it cannot be satisfactorily partitioned in kind nor the fact that the real estate would bring a better price at a private sale by an administrator than at a public sale on partition is a matter which relates to or has to do with the administration of an estate as such. It must follow, therefore, that neither asserted reason in the petition to sell, if proved, could make “necessary” the sale of real estate “in the best interests of the estate” under the provisions of subpara-graph 6 or under any other portion of section 473.460.

The judgment is reversed and the case remanded.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.

      . All section citations herein refer to sections indicated. of RSMo 1959 and Y.A.M.S., unless otherwise


author: PAUL VAN OSDOL, Special Commissioner.

text:
    George M. MADSEN, a Minor, by His Father and Next Friend, George C. Madsen, Respondent. v. James LAWRENCE, Appellant.
    No. 49565.
    Supreme Court of Missouri. Division No. 1.
    April 8, 1963.

      Ernest H. Fremont, Jr., Thos. J. Conway, Jr., Kansas City, for appellant.
    Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    William J. Gilwee, Kansas City, Donald E. Lyons, Kansas City, for respondent.
   PAUL VAN OSDOL, Special Commissioner.

September 8, 1959, at approximately twelve o’clock noon, plaintiff George Michael Madsen, then ten years of age, was sitting on the terraced lawn of the Anderson home at the southwest corner of the intersection of 57th and Swope Parkway, in Kansas City, Missouri. George Michael lived with his parents in the Madsen home nearby, and most of the morning he and some young friends had been watching the work of excavating earth from a lot or tract of land of higher elevation lying north of 57th Street and west of Swope Parkway.

The lot or tract of land belonged to James E. Southard and Elmer Tindell, builders, who were, planning to build a duplex residence at the site. They had engaged defendant James Lawrence, an excavator, to dig the basement, and Lawrence had called three dump-truck owners, Robert L. Young, Robert Edwards, and Eddie Edwards, to receive the excavated dirt from the excavating machine at or in the excavation and to haul the dirt away from the excavation and site and to the sites of other Southard-Tindell building projects in the neighborhood.

At about noon, Henry A. Smith, who was driving the dump truck belonging to Eddie Edwards, left the truck parked, headed westwardly and unattended, on the north' side of 57th, south of the site of the excavation and a few feet east of and behind a parked service truck belonging to defendant Lawrence. The unattended dump truck suddenly rolled backwardly and downgrade eastwardly and angled southeast-wardly on and across 57th and the south curb and sidewalk of that street and partially over on the Anderson lawn striking plaintiff and seriously injuring him.

Plaintiff by next friend instituted this action for $150,000 damages for personal injuries, joining Eddie Edwards, owner of the truck which struck and injured plaintiff ; Henry A. Smith, driver of that truck; defendant James Lawrence, the excavator; and James E. Southard and Elmer Tindell. builders, as parties defendant.

Upon trial, and at the close of plaintiff’s case, the trial court sustained the motion of defendants Southard and Tindell for a verdict directed in their favor. At the conclusion of all of the evidence, plaintiff voluntarily dismissed, without prejudice, as to defendants Eddie Edwards and Henry A. Smith; and upon submission of plaintiff’s case against the remaining defendant, James Lawrence, the jury found and returned a verdict for him and against plaintiff. However, the trial court sustained plaintiff’s motion for a new trial on the specified grounds “the verdict is against the evidence” and “the verdict is against the weight of the credible evidence in the case.” And defendant has appealed from the new-trial order.

Plaintiff had submitted his case to the jury on the theory that Henry A. Smith, driver of the truck that struck and injured plaintiff, was working under the control or subject to the right of control of defendant Lawrence, and that defendant Lawrence was responsible, as a master, for the conduct of Smith, as a servant, under the doctrine of respondeat superior.

Defendant Lawrence does not herein question the sufficiency of the evidence in supporting the submission of the issues of Smith’s causal negligence and plaintiff’s injuries, but defendant does challenge the sufficiency of the proof of an employer-employee or master and servant relationship between himself and Smith. Defendant invites our thought that the whole evidence shows that Smith was not his employee, but was the employee of Eddie Edwards (who, defendant suggests, was an independent contractor) or was a co-independent contractor with Eddie or was the employee or servant of Southard and Tindell, the builders.

The theories and contentions of the parties involve distinctions between the master and servant relationship and the relationship of independent contractor.

‘“A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.

‘A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or subject to the right of control by the master.

“ ‘An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.’ ” Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58. See also Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Talley v. Bowen Construction Company, Mo.Sup., 340 S.W.2d 701.

Sundry factors or circumstances enter into the determination of the actual relationship; ordinarily no one of these is alone conclusive, and all must he viewed to see whether control, or right to control has been exercised and retained over the alleged employee’s physical conduct and details of the work. Talley v. Bowen Construction Company, supra, and cases therein cited.

In the Talley case, a case cited and greatly relied upon by defendant, this court comprehensively examined the “whole of the evidence” introduced in the trial of the cause. (See also Skidmore v. Haggard, supra.) And from the whole of the evidence, this court determined as a matter of law that plaintiffs in the Talley and Skidmore cases were not entitled to go to the jury on the ultimate respondeat-supe-rior issue. But the “whole of the evidence” which this court reviewed in those cases was the respective plaintiffs’ “own evidence” and which was wholly uncontra-dicted. Defendants in .those cases had not introduced any evidence. “In such event, and although we consider the evidence in the light most favorable to plaintiff, it becomes the duty of the court to decide the effect of the entire evidence, as a matter of law.” Talley case, supra; Skidmore case, supra.

In his brief filed herein defendant in our case, having stated and argued the effect of the entire evidence (the effect of the evidence introduced by plaintiff and the effect of the evidence introduced by several defendants, including the evidence introduced by defendant Lawrence), would have us say, “Since the plaintiff under all the evidence is not entitled to recover, the action of the trial court in granting him a new trial is error.”

But in this case we shall not consider the evidence from the whole of those standpoints.

It was within the trial court’s discretion to grant a new trial on the ground the verdict of the jury was against the weight of the evidence. However, such discretion was to be judicially, not arbitrarily exercised. It has been said that, in determining the question whether the trial court (in granting a new trial to plaintiff on the ground the verdict was against the weight of the evidence) was acting in the exercise of its judicial discretion, the appellate court will endeavor to ascertain if there was sufficient substantial evidence to sustain a verdict for plaintiff, the party to whom the new trial was granted. Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, and cases therein cited; Dawson v. Scherff, Mo.Sup., 281 S.W.2d 825; Hendershot v. Minich, Mo.Sup., 297 S.W.2d 403. And in endeavoring to so ascertain we, in the instant case, shall consider the evidence in a light most favorable to plaintiff and give him the benefit of all favorable inferences reasonably to be drawn from all the evidence and disregard defendant’s evidence unless it aids plaintiff’s case. Kiburz v. Loc-Wood Boat & Motors, Inc., Mo.Sup., 356 S.W.2d 882.

In supporting his claim, plaintiff in part relied upon admissions made in testimony, by deposition, of defendant Lawrence.

Defendant Lawrence testified (by deposition, portions of which were introduced by plaintiff) that he is in the excavating and grading business — such as digging basements, moving dirt, cutting down lots, and so forth. He owns excavating and dirt-moving machinery, including a 955 hi-loader and a service truck; but he doesn’t own any dump trucks to receive dirt from his digging machines and to haul the dirt out of and away from excavations.

As to the dirt excavated — “If it is surplus dirt, we do move it out. Q. And how do you get hold of the equipment to haul the dirt out? A. You mean the trucks? Q. The trucks? A. We call them.”

A few days before September 8th defendant Lawrence was engaged by Southard and Tindell to excavate the basement at 57th and Swope Parkway. This was a contract, but not a written contract.

There was dirt on this excavation job that defendant Lawrence had to dispose of. Southard and Tindell did not furnish any labor or equipment necessary to the excavation and, “since there had to be trucks there, I (defendant Lawrence) called the dump trucks.” He called three. Robert L. Young owned one truck, and operated it; and defendant called the Edwards boys, Robert and Eddie. They had two dump trucks. Defendant Lawrence at that time regularly used these three men, and their trucks.

Eddie Edwards was at the excavation site the morning of September 8th. Defendant Lawrence knew who was going to drive the Eddie Edwards truck that day. Henry A. Smith was operating the Eddie Edwards truck on this job with the consent of Eddie. Eddie had no control over the details of the excavation work. “Q. And Smith was actually hauling dirt for you, on the day of the accident, * * * pursuant to this agreement you had between yourself and Eddie Edwards? A. Yes, sir. * * * He was hauling for me. Q. Hauling dirt for you, Edwards was ? A. Edwards was hauling dirt for me. Q. For you? A. Yes, sir.”

Lloyd E. Sims was the agent, employee and servant of defendant in the work of excavation. Sims operated the hi-loader.

In the morning of September 8, Sims, at the direction of defendant, graded a ramp for the use of the truck drivers in dirt-hauling movements between the site of the excavation and the street. That morning defendant had driven his service truck to the site, and had parked it on the north side of 57th, south of the excavation.

Defendant Lawrence had told the truck owners what time they were to report for work, and he “probably” told them whether they were to report for work the following morning.

The truck drivers drove in rotation up to the hi-loader to receive the excavated dirt. Thus, said defendant, was the work equalized among them. As stated, defendant said Sims was his, defendant’s, employee, and Sims would “spot” the hi-loader where he wanted the truck drivers to load. Wherever “the hi-loader stopped, they would have to back up to it. * * ⅜. ” When it was time to load, the hi-loader operator “would just raise the (hi-loader) bucket, with the bucket of dirt.” The hi-loader operator would nod his head when they were loaded and when he nodded his head, then they knew it was time to move.

Sims and the truck drivers stopped for lunch at twelve, and, after lunch * * * when the hi-loader “starts up,” that is when they (the truck drivers) go to work. They stopped work for the day when the hi-loader stopped — that was “it.” If the “hi-loader wanted to work until 4:30, .they worked; and if he wanted to work until 5:30, they worked until then.”

The witness, defendant Lawrence (by deposition) had further testified that the “machine got paid eleven dollars an hour; and at that time, I don’t recall right offhand * * * whether they had already raised to five; but whatever I charged Southard for the job went directly to the trucks.” He, defendant Lawrence, billed Southard for the excavating-machine time and the truck time, and collected from Southard for it, and paid the owners of the trucks. The only equipment at the place was owned by defendant Lawrence, or equipment he made arrangements to have there.

“Q. Well, as I understand it, your agreement with Southard was you were to get eleven dollars an hour for the hi-loader and operator, and * * * five dollars an hour for the trucks and driver, * * *? A. Yes, sir.”

Plaintiff also introduced a portion of a deposition of the (then) defendant Henry A. Smith in which Smith stated the facts of the event occurring immediately prior to the casualty, in part as follows * * *

“I got loaded and took a load to where we were dumping and took it back and Lloyd Sims was loading a truck and there wasn’t any room up on the top of the hill for two trucks, so I parked it on the street. I toed the wheels into the curb and left it out of gear with the emergency brake on. I stepped out of the truck and the pick-up truck [defendant’s service truck] that had water in it was approximately ten feet in front of where I parked the truck. I got out to get a drink and when I was drinking * * * then all at once I heard a commotion * *

In testifying in his own behalf as a defendant, Henry A. Smith said he reported, September 8th, to Lloyd E. Sims, and he took his instructions from Lloyd E. Sims.

Lloyd E. Sims testified as a witness in behalf of defendant Lawrence. The witness said he operated the excavating machine. He kept the time the truck drivers worked and turned the time in to defendant Lawrence. The machine started in the morning when he (Sims) got there. When he was hungry he “shut down and went to lunch.” The truck drivers couldn’t do any work if he wasn’t working. “When I shut the machine down, they had to stop too.” The witness had instructed Smith to come back the next day.

In examining the evidence stated supra, we have thought the inferences are reasonably supported that defendant Lawrence had entered into a contract with the builders to do the excavation of the basement at the stated site, and in the performance of the contract it was necessary to dispose of surplus dirt. This defendant did by means of trucks, and he called upon three truck owners whose services and their trucks defendant regularly' had used especially when in his excavation work the disposal of surplus dirt -was ’ necessary.

The three truck owners reported for work in the morning of September 8th, as defendant Lawrence had directed, but Henry A. Smith drove the Eddie Edwards truck to the site of the excavation. Eddie Edwards had consented to the use of his truck by Smith in hauling the surplus dirt from the excavation, and it could be reasonably inferred it was agreed between defendant and Eddie Edwards that Smith was to drive the Eddie Edwards truck as a substitute for Eddie, the owner. The fact that Smith drove the Eddie Edwards truck in the subsequent hauling operation is substantial evidence that Smith had acceded to the arrangement. The facts thus far examined do not compel the conclusion that Eddie Edwards, between himself and defendant, had the right to effect the substitution. The facts thus far examined reasonably support the inference that the substitution was effected by and agreed upon by defendant, Eddie Edwards and Smith. And the inference is permissible that Eddie Edwards did not supervise the work of Smith in the subsequent work and operation of the truck in hauling dirt for defendant.

Since Smith was actually hauling dirt for defendant and not apparently in response to the exercise of any right to effect a substitution on the part of Eddie Edwards, and since there was no evidence introduced by plaintiff tending to show that Eddie Edwards in any way supervised Smith’s work in hauling for defendant, we have the opinion the language used in the cases of Talley v. Bowen Construction Company, supra; State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457, quashing the record in Perdue v. Chapman, Mo.App., 137 S.W.2d 483; Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918; and Coul v. George B. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758, in speaking of the right, and the exercise of it by another, of substitution of or subsequent supervision over a substituted driver as factors, in whole or in part decisive, in determining the relationship between a defendant and an alleged servant, is not in whole or in part as a matter of law decisive in determining the relationship between defendant Lawrence and the alleged servant Smith in our case.

We agree with defendant’s argument that defendant’s testimony, that Smith was actually hauling dirt for him, does not quite afford the substantial basis for a conclusion that Smith was hauling dirt for him “as his servant.” But the above emphasized does afford the basis for a fair inference that the hauling of the dirt at, out of and from the excavation was considered by defendant as in the fulfillment of defendant’s own contractual responsibility.

Now the evidence introduced by plaintiff of the facts of the actual management of and the directions given by defendant and his employee Lloyd E. Sims in the excavation operation in governing the physical conduct of the truck drivers, Robert L. Young and Robert Edwards, is the same and also applicable with respect to the control and right of control of the physical conduct of the truck driver Smith. Consequently, we believe the evidence introduced by plaintiff reasonably puts the driver Smith in the same category as Robert L. Young and Robert Edwards, that is, in the same category with respect to the respondeat-superior issue.

Plaintiff’s evidence reasonably tends to show that defendant paid the expense of the truck-hauling operation on an hourly basis. Defendant charged this expense to the excavating operator, and collected it from the builders along with the hourly consideration he charged the builders for the service of the excavating machine and its operator Sims. The service of the truck drivers had been regularly used by defendant. Defendant or his employee Sims kept track of the truck drivers’ time; equalized the work among them; told them the hour they were to report for work in the morning and in effect, told them how long they were to work that day and whether they were to report for work the next day. It reasonably could be inferred that the physical work and conduct of the truck drivers in its performance were commanded, managed, directed and controlled (verbally, by signal, and by directing manipulation of the excavating machine) by defendant Lawrence or his employee Sims, and that inferentially the truck drivers were subject to the right of control of defendant Lawrence.

Moreover and additionally, from a study of the evidence in this opinion stated, we believe it fairly could be inferred that defendant looked upon the drivers of the trucks as one would look upon one’s employee, and that the drivers of the trucks looked upon him as their employer and gave their time and labor in his service as would one to an employer; that is, from the evidence, defendant Lawrence and the drivers of the trucks reasonably seem to have believed their relationship was that of master and servant.

We think the (reasonably-to-be-inferred) authoritative directions and control exercised by defendant could fairly be distinguished by a jury from mere suggestions as to details or the necessary co-operation where the work furnished is a part of a larger operation. Compare Scherer v. Bryant, 273 Mo. 596, 201 S.W. 900.

Our conclusion is that there was sufficient substantial evidence introduced in this case to reasonably justify a finding by a jury that defendant Lawrence had employed Henry A. Smith to perform service in his affairs and whose physical conduct in the performance of the service was controlled by and was subject to the right of control of defendant Lawrence.

The trial court’s order awarding plaintiff a new trial should be affirmed.

It is so ordered.

PER CURIAM.

The foregoing opinion by PAUL VAN OSDOL, Special Commissioner, is adopted as the opinion of the court.

All concur.


author: HOLMAN, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. John H. TURK et al., On Exceptions of Ross Parnell, Gladys Parnell, Junior Conrad, Ella Dee Conrad, John Hancock Mutual Life Insurance Company, a Massachusetts Corporation, Robert A. Smith, Trustee, Ozark Production Credit Association, a Farmers Cooperative, and Garland N. Holt, Trustee, Defendants-Respondents.
    No. 49475.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for appellant.
    Moore, Pettit & Steinle, J. Hal Moore, Aurora, for respondents.
   HOLMAN, Commissioner.

In this highway condemnation case the commissioners appointed by the circuit court awarded defendants the sum of $25,000. Exceptions to that award were filed by plaintiff and also by defendants. The subsequent circuit court trial resulted in a verdict and judgment for defendants in the sum of $25,000, and plaintiff has duly appealed therefrom. Since plaintiff’s evidence was to the effect that the damages would not exceed $3,100, we have jurisdiction because the amount in dispute exceeds the sum of $15,000. Section 477.040 RSMo 1959, V.A.M.S.

Prior to the taking, defendants’ farm contained 146 acres. It is located in Lawrence County and is a highly improved, well-fenced dairy farm. The improvements include an eight-room modern residence, a tenant house, a “grade A” dairy barn, and a number of other buildings.

Two highways are involved. Eight and thirty-six hundredths (8.36) acres of defendants’ land were taken for new Interstate Highway 44, which crosses the farm for a distance of 1,330 feet. The north line of the right of way is 320 feet south of defendants’ residence. Three and forty-nine hundredths (3.49) acres are taken for Route O which runs in front of defendants’ house. This highway was in existence before the filing of this suit but is being improved and relocated to some extent. Certain drainage easements involved about two acres of land.

Defendant Ross Parnell testified that after the taking the reasonable market value of his farm was $40,000 less than it was prior thereto. Defendants’ other expert witnesses fixed the damages as follows: C. C. Keller, $39,250, Jim Squibb, $30,700, and Lloyd Ellis, $29,250. Plaintiff’s experts estimated the damages to the farm as follows: H. M. Turner, $2,000, John Tinsley, $3,100, Wayne Bowen, $2,306, and Jack Sturgeon, $2,500.

The first point briefed by plaintiff is that the court erred in permitting testimony and other references to annoyance from noise and traffic on Highway 44 which, plaintiff contends, is not a compensable element of damage in a case of this nature. In his opening statement defendants’ attorney, in detailing the items of damage, stated: * * * [A]nd because of the noise on 1-44 coming right up this draw (indicating) —Mr. Ring: Let me object to that, your Honor, the noise is not an element of damage in this case. The Court: Objection overruled.” Thereafter, defendant Ross Parnell was permitted to testify as follows: “Q. Have you heard the trucks riding on it? A. We sure do. Q. Do they disturb you up at your improvements? Mr. Ring: Let me object to that, your Honor. It is not material to the issues in the case, and it does not properly show damages in the case. The Court: Overruled. Q. (by Mr. Moore) : Answer the question. A. That is definitely, because there is a grade just at the creek, where sound movement, you might say — it is just natural for it to come up this ravine, and those diesels or anything — you can hear them kick them in, and it would wake anybody up. We are just barely getting a taste of it now, because there is very little traffic on it, and there will not be until we get it opened up.” And in his closing argument, one of the attorneys for defendants stated: “Would you give that much for a farm that has got that road right behind its back door, with the noise and everything from the diesels — Mr. Ring: Let me object to that. The noise is not a proper element of damage in this case. The Court: Overruled. Mr. Moore (resuming oral argument) : — goes by the back door of this property — the part taken by the highway department. The evidence is, that it keeps them awake at night. Are you going to give that much for a farm ? Where you are going to be kept awake at nights?”

We are of the opinion that the rulings set out in the preceding paragraph constituted reversible error. It appears to be settled in this state that “the amount of noise and speed of the traffic on the highway are not proper elements to be taken into consideration in arriving at the damage resulting from condemnation of land for State Highway uses or for railroad uses.” State ex rel. State Highway Commission v. Hoffmann, Mo.App., 132 S.W.2d 27, 30. To like effect, see also Chicago Great Western R. Co. v. Kemper, 256 Mo. 279, 166 S.W. 291. State ex rel. State Highway Commission v. Watkins, Mo.App., 51 S.W.2d 543, and State ex rel. State Highway Commission v. Sharp, Mo.App., 62 S.W.2d 928 [5].

Defendants’ position is that the element of noise in this case is an item of special damage not common to the other landowners in the vicinity. That seems to be based upon the fact that there was a “grade” at a point near defendants’ home and that the noise followed a “draw” toward the house. In that connection, we think judicial notice may be taken of the fact that the noise of traffic, particularly from trucks going up an incline, may be heard for a considerable distance in every direction. While, no doubt, there is some difference in degree, we think the annoyance from the noise at the point in question is shared by all who reside in the neighborhood. In the Watkins case, supra, it is stated that “Defendants, no doubt, were subject to annoyances more than would be other abutting landowners whose houses were situated greater distances from the highway. But the jury should not be expected to, and could not fairly, consider fine points of distances in order to determine that defendants were damaged by reason of noises from passing vehicles more than were other persons living on the highway. Our Supreme Court has held that even the noise of trains, common to other landowners in the neighborhood, is not a proper element of damages in cases of this character. Chicago Great Western Railroad Co. v. Kemper, 256 Mo. 279, 166 S.W. 291, Ann.Cas. 1915D, 815. Certainly the same rule should be applied to motor traffic which, in that respect, can hardly be compared to the annoyance made by the roar, whistle, soot, and smoke of the locomotive.” 51 S.W.2d 1. c. 545.

Upon the more general subject, we have said that “traffic, great or small, is merely an incident of streets and highways and cannot be considered either as an element of damages or of benefits.” Wilson v. Kansas City, Mo.Sup., 162 S.W.2d 802, 805.

As indicated, we have concluded that the factual situation here presented is not one which would create an exception to the application of the rule heretofore quoted.

The next point briefed by plaintiff relates to the following testimony: “Q. What kind of a well do you have on your place? A. I guess it would go as a deep well system, approximately 200 feet. Q. Does the well ever go dry? A. No. Q. Have you noticed any change in the well, after this highway was constructed? A. Yes. Q. What change have you noticed ? A. About once a week, sometimes it will go 2 weeks, we will pump clay water. It is not really muddy water, but we pump clay water out of it, and we never did prior — before they did all that dynamiting on the roads there. Mr. Ring: I object to that. As to the dynamiting, it is a separate item to the damages. The witness is talking about something the contractor did, over which we had no control. And we ask that the witness’s statement be stricken, and the jury instructed to disregard it. Mr. Moore: I will withdraw the question, your Honor. The Court: Very well, the question is withdrawn. Mr. Ring: I am going to ask for a mistrial, because of the injection of an improper element into the case. The Court: Overruled.”

Plaintiff contends that the court erred in regard to the relief granted on its objections. There appears to be no question but that testimony concerning the damage done to the well as a result of dynamiting by the contractor would not be admissible. State ex rel. State Highway Commission v. Riggs, 226 Mo.App. 1053, 47 S.W.2d 178. While we do not agree with plaintiff's contention that the court should have declared a mistrial, we are of the opinion that the court should have stricken the answer of the witness and instructed the jury to disregard it, as requested by plaintiff’s attorney. From a technical standpoint, it may be that the action of defendants’ counsel in withdrawing the question would have the effect of withdrawing the answer, but we do not think the jury would necessarily have so understood. Plaintiff’s attorney requested the appropriate relief, and, if the court had accordingly instructed the jury to disregard the testimony, we think the error would have been cured. However, under the circumstances here presented, the failure of the court to so instruct the jury was error.

The next point relates to a portion of the argument of one of the attorneys for defendants. After directing the attention of the jury to the fact that the highway department had paid substantial sums to the expert witnesses, who testified for plaintiff, for their services in testifying in various cases in that area, he made the following statement: “* * * [A]nd as I said before, and I say in this case, they have plenty of money to pay everybody but the man who owns the land. Mr. Ring: I object to that, and ask that it be stricken, and that the jury be instructed to disregard. I do not think it is a fair comment on the evidence in the case. The Court: Overruled.” Plaintiff contends that the statement was not a fair comment on the evidence and was designed to prejudice the jury against the appellant. The statement of the attorney would likely have been considered as imparting the idea that plaintiff was willing to spend an unreasonably large amount in the defense of the case rather than paying it to defendants in satisfaction of their claim for damages.

We think the statement was improper and that the court should have sustained the objection made by plaintiff’s attorney. In discussing a somewhat similar statement, we recently said that it “conveys the idea that the city can afford to produce more expert witnesses on land value than this individual landowner could produce, and was improper. It compares the financial condition of the respective parties and is of the character of argument that is likely to arouse the passions and prejudices of a jury.” City of St. Louis v. Vasquez, Mo.Sup., 341 S.W.2d 839, 852.

Other points briefed will not likely recur upon another trial and therefore will not be discussed herein.

The judgment is reversed and the cause remanded for a new trial.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges in Division I concur.

STORCKMAN, Special Judge, concurs.


author: WESTHUES, Chief Justice. DALTON, Judge

text:
    STATE of Missouri, Respondent, v. Marco Demitri VAINIKOS, Appellant.
    No. 49315.
    Supreme Court of Missouri. En Banc.
    April 8, 1963.

      Morris A. Shenker, Lawrence J. Lee, Murry L. Randall, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., James K. Pendleton, Special Asst. Atty. Gen., Jefferson City, for respondent.
   WESTHUES, Chief Justice.

The defendant Marco Demitri Vainikos, on December 6, 1961, was convicted by a jury on a charge of carrying a concealed weapon. The punishment assessed was a fine of $150. A motion for new trial was overruled and a judgment entered. An appeal was taken to this court. The offense of which defendant was convicted is a felony, hence jurisdiction of the appeal is in this court.

The offense was alleged to have been committed on August 4, 1961, in the City of St. Louis, Missouri.

On this appeal, defendant has briefed three points. In the first, it is stated that the trial court erred in giving instruction No. 2. It is claimed that this “instruction required defendant to prove that he did not intend to conceal the .25 caliber Colt pistol, instead of requiring the State to prove beyond a reasonable doubt that he did so intend to conceal it.”

In the second point, defendant says the trial court erred in admitting the .25 caliber pistol and another pistol, a .22 caliber, in evidence because they were obtained by a search without a warrant after defendant’s arrest; that there was no justification or probable cause for defendant’s arrest.

In the third point, defendant says that the trial court should have declared a mistrial or should have stricken evidence given by the arresting officer, Hemm, to the effect that the defendant, after his arrest, refused to make any statement. We shall dispose of the points presented after making a statement of what the evidence disclosed to have occurred.

Police officer Hemm, a witness for the State, testified that he had been informed by an F.B.I. agent that the occupant of a car parked near the corner of Pershing Avenue and Plaza Drive in St. Louis, Missouri, was carrying a gun. Thereafter, the police officer noticed the defendant enter the car and as he was about to drive away, the officer stopped him. The officer placed defendant under arrest. Upon searching the car, the officer found a .25 caliber automatic under the front seat of the car and found a .22 caliber in the glove compartment of the car. Both pistols were loaded.

Defendant testified and his evidence was much like that of the officer except that defendant stated he had placed the .25 caliber automatic on the floor of the car and had not intended to hide it. The officer testified that the .25 caliber was hidden from view. It may be noted here that defendant was charged with having concealed the .25 caliber. The evidence with reference to the .22 caliber was admitted by the trial court on the theory that such evidence had a bearing on the intent of the defendant. It may be further stated that all the elements of the offense were admitted by the defendant except that of the concealment of the .25 caliber pistol.

We shall dispose of the points made in the order stated supra. The instruction (No. 2) complained of reads as follows: “The Court instructs the jury that to conceal a weapon means something more than carrying it or the mere fact of having it where it may not be seen. It implies an assent of the mind and a purpose to carry it so that it may not be seen; and the Court instructs you that if you find and believe from the evidence that the defendant did not intend to carry the .25 caliber pistol mentioned and described in the information herein concealed, then you should find the defendant not guilty.”

The court also gave an instruction (No. 4) which advised the jury as follows : “The defendant is charged with carrying concealed a .25 caliber pistol, and in this respect you are instructed that you may not convict him merely because of the fact that he may have had a .22 caliber pistol in his glove compartment, and unless you find and believe from the evidence beyond a reasonable doubt that the defendant intended to conceal the .25 caliber pistol mentioned in evidence, you will acquit the defendant.”

The court further instructed the jury that to convict the defendant the burden was on the State to prove his guilt beyond a reasonable doubt. Instructions must be considered together and we need not consider at length defendant’s point that the court’s instruction imposed on the defendant the burden of proving that he did not intend to conceal the weapon. A reading of the above-quoted instructions answers the defendant’s complaint. He certainly was not prejudiced by the court’s instructions. State v. Dill, Mo., 282 S.W.2d 456, l. c. 460, 461 (4, 5).

The second point, that officer Hemm did not have probable cause to arrest the defendant, is without merit. Hemm testified in the hearing on the motion to suppress that he had known the F.B.I. agent who gave him the information for some time and that he had had dealings with him previously. He further testified that the F.B.I. agent informed him that the occupant of the car, a white Pontiac with license No. 2212, 1961, was carrying a gun. The question here presented was reviewed by this court in the case of State v. Bailey, 320 Mo. 271, 8 S.W. 2d 57, l. c. 59(1, 2). The question was further reviewed by this court en banc in the case of State v. Edwards, Mo., 317 S.W. 2d 441. We note here that the question of whether the trial court erred in not requiring officer Hemm to reveal the name of the F.B.I. agent is not before us. We note a ruling made by the trial court, on the hearing to suppress the evidence, that in the circumstances presented the name of the informant need not be disclosed. No point was made that the trial court abused its discretion. We rule that the trial court’s ruling admitting the evidence was not error and that the officer had probable cause to arrest defendant.

We now reach a more serious question. Defendant was the only witness for the defense. His evidence, in substance, as to what occurred was similar to that of officer Hemm except that the defendant testified he had placed the .25 caliber pistol on the front floor of the car where it could be seen. He stated that he had been employed by an insurance company which required him tc collect money; that on one occasion, he had been followed by two men who he thought wanted to rob him of money; that that was the reason he had the pistol in his car.

On direct examination, he was not asked about the police officer’s asking him any questions at the time of his arrest. The cross-examination of the defendant was, in part, as follows:

“Q Did you tell the police that you carried this gun because you had been accosted on the street by several men?
“A No, sir.
“Q You did not tell the police officer that?
“A No, sir.
“Q Did the police officer ask you why you carried this gun?
“A No, sir.
“Q He did not? Are you sure of that?
“A Yes.
“Q Is it your testimony then that the police officer did not ask you why you carried this gun, State’s Exhibit No. 1?
“A Correct.
“Q Did the police officer ask you why you carried State’s Exhibit No. 2?
“A No, sir.
“Q Did you tell him why you were carrying it?
“A No, sir.”

The prosecution called officer Hemm in rebuttal. Note what occurred during the questioning by the State’s attorney:

“Q Officer, after you placed Vaini-kos under arrest and found State’s Exhibit 1, which is the pistol, did you ask him why he was carrying that?
“A Yes, sir.
“MR. KOSTER: I have no further questions.
“MR. LEE: No questions.
“MR. KOSTER: Did he giye you an answer, Officer?
“A He refused to make a statement.
“ (Witness excused.)
“Proceedings were had out of the hearing of the jury as follows:
“MR. LEE: In view of that last answer, your Honor, I ask that comment upon defendant’s failure to incriminate himself of the offense in question be stricken out, and Mr. Kos-ter well knew what this officer was going to say when he put him on the stand and asked the question.
“THE COURT: In a case where the defendant has testified, I don’t think that this is at all a matter of any comment which the law forbids, if it is to be called a comment at all. The present objection is overruled.
“MR. LEE: He put this witness on only for the purpose of having him testify that this defendant refused to make a statement, and he knew what his answer would be before he asked the question. He did nothing but exercise his right not to make a statement.
“MR. KOSTER: I expected the officer to say ‘No’ when I asked the question, ‘Did he make a statement as to why he was carrying a gun,’ I expected the officer to say ‘No.’
“THE COURT: The previous question was one that he could properly ask on rebuttal in view of the defendant’s statement that the officer did not ask him why he was carrying a gun, it is proper to ask the officer in rebuttal, ‘Did you ask him why he was carrying it.(’) The purpose in putting him on is obviously a proper purpose. Now, as to this last, I don’t think it is a serious matter at all.
“MR. LEE: I certainly object, and I ask that the jury be instructed to disregard this last answer and a mistrial be declared.
“THE COURT: I will deny the motion for a mistrial. There is no legal reason given that would justify my striking anything of the last answer, so I overrule that motion to strike.”

The ruling of the court, overruling the motion to strike, was erroneous. In State v. Bowdry, 145 S.W.2d 127, l. c. 129, 130(3-7), this court said: “* * * in Missouri the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make any statement.” A number of cases are there cited in support of the rule. See also State v. Dowling, 348 Mo. 589, 154 S. W.2d 749, l. c. 755 (4, 5, 6-8), and 22A C.J.S. Criminal Law § 734(1) d, p. 1077.

In this case, the disputed issue was whether the .25 caliber pistol had been concealed by the defendant. He testified that he did not conceal the pistol. The officer testified that he found the pistol concealed under the front seat of defendant’s car. The evidence that defendant refused to respond to the officer’s question while under arrest may well have been considered by the jury in determining the innocence or guilt of the defendant. We are not justified in holding that the error was not prejudicial.

For the error indicated, the judgment is reversed and the cause remanded.

EAGER, STORCKMAN, LEEDY, and HOLLINGSWORTH, JJ., concur.

DALTON, J., dissents in separate opinion filed.

HYDE, J., dissents and concurs is dissenting opinion of DALTON, J.

DALTON, Judge

(dissenting).

I find it necessary to dissent because I believe that the court in reversing the judgment in this case and remanding the case for a new trial has given the defendant-appellant much more consideration than he is entitled to receive under the facts shown by the record and the law as previously declared by this court. The conviction is reversed on the sole basis of the police officer’s answer to the last question asked at the close of all of the evidence, as follows:

“MR. KOSTER: Did he give you an answer, Officer?
“A. He refused to make a statement.”

It will be noted that the defendant interposed no objection to the question, but waited until the question had been answered and then moved to strike out the answer. There is no suggestion in the record that counsel did not have time to object to the question before it was answered if he had desired to do so. The motion came too late to prevent the jury from hearing the answer and the motion to strike would have amounted to very little. Further, I believe that this evidence was clearly admissible in contradiction of defendant’s testimony that the police officer did not ask him why he carried either gun. It tended to contradict defendant’s testimony and to impeach his credibility as a witness. A refusal implies a request and absent a request there could have been no refusal.

Section 546.260 RSMo 1959, V.A.M.S. provides that a defendant may testify in his own behalf “and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case" (Italics ours.) State v. Beishir, Mo.Sup., 332 S.W.2d 898, 901 [1] ; State v. Swisher, 364 Mo. 157, 260 S. W.2d 6, 10 [1-5] and State v. Woods, 346 Mo. 538, 142 S.W.2d 87, 90 [7], Under this statute much evidence that would definitely be inadmissible in the State’s case in chief may become admissible in rebuttal of defendant’s testimony or evidence. State v. King, 342 Mo. 975, 119 S.W.2d 277, 283 [11,12] ; State v. Griffin, Mo.Sup., 336 S. W.2d 364, 368 [7].

Any competent testimony that tends to explain, counteract, repel or disprove evidence offered by defendant may be offered in rebuttal of the defendant’s testimony or evidence. State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 324 [23 to 27 inc’l]; State v. Beishir, supra, 332 S.W.2d 898, 903 [6, 7]; State v. Woods, supra, 346 Mo. 538, 142 S.W.2d 87, 90 [7]; 23 C.J.S. Criminal Law § 1050, p. 1208. And it is immaterial that such defendant’s evidence may have appeared in the State’s cross-examination of the defendant himself. State v. Foster, supra, 355 Mo. 577, 197 S.W.2d 313, 324 [23 to 27 inc’l]; State v. King, supra, 342 Mo. 975, 119 S.W.2d 277, 284 [12],

Even implied adverse inferences may be rebutted by competent rebuttal testimony. State v. Humphries, 350 Mo. 938, 169 S.W. 2d 350, 353 [8]; State v. Hadley, Mo.Sup., 249 S.W.2d 857, 860 [2], Further, the admission or exclusion of rebuttal testimony and the scope of such testimony, if not clearly admissible as a matter of law and right, rests largely within the discretion of the trial court, and this discretion extends even to the matter of determination of the admission of evidence which may not be strictly rebuttal evidence and an appellate court will reverse only for a clear abuse of that discretion. State v. Smith, Mo.Sup., 261 S.W.2d 50, 55 [2] and [3] and cases cited; State v. Smith, 354 Mo. 1088, 193 S. W.2d 499, 503 [14-15]; State v. Dees, Mo. Sup., 276 S.W.2d 201, 206 [10-11]; State v. Payne, Mo.Sup., 342 S.W.2d 950, 954 [4-7]; State v. Mason, 322 Mo. 194, 14 S. W.2d 611, 615 [9-11]; State v. Higginbotham, 335 Mo. 102, 72 S.W.2d 65, 68 [2] ; West’s Missouri Digest, Criminal Law, Key a s I u có Ü CO CM CO CO a VO r~~i O CO 609

A further applicable rule is that evidence which is competent for one purpose, but incompetent for another, must be received and the adverse party then has the right to an instruction, if he requests it, limiting the purpose for which the jury may consider such evidence. Johnson v. Minihan, 355 Mo. 1208, 200 S.W.2d 334, 337 [5]; Hammond v. Schuermann Bldg. & Realty Co., 352 Mo. 418, 177 S.W.2d 618, 620 [4]; State v. Beishir, supra, 332 S.W.2d 898, 902 [3,4], The officer’s final statement was properly admitted under the statute, even though it was not proper evidence to prove the guilt of the defendant of the charge against him. Further, after the close of all the evidence the defendant did not present any instruction limiting the effect of this rebuttal evidence, nor did defendent request the court to advise the jury that this evidence was competent only on the issue of defendant’s credibility as a witness. See State v. Warren, 326 Mo. 843, 33 S.W.2d 125, 127 [1,2]; Scott v. Missouri Ins. Co., Mo.Sup., 233 S.W.2d 660, 665 [9] ; State v. Preslar, 318 Mo. 679, 300 S.W. 687, 690 [2], No such instruction was requested, or given, and none was required unless requested. State v. Preslar, supra; State v. Scown, Mo.Sup., 312 S.W.2d 782, 788 [6-8],

There is a further reason that this case should not be reversed and remanded because of the admission into evidence of the officer’s answer to the last question and the court’s failure to strike it out and that is because under the facts in this case the defendant was not prejudiced by the answer in question in view of his own testimony.

Defendant, testifying in his own behalf, admitted that he had the .25 caliber Colt automatic pistol in his car on the date of his arrest; that he had put the pistol on the front floor of his car; that he made no attempt to conceal it; that he had the pistol with him because he had to go back into the neighborhood where he was afraid and where he previously had been followed; that he wanted to have some protection; that he took the gun with him to protect himself because he was afraid for his life; and that he had the .22 caliber pistol, which was locked in the glove compartment, because he used it for target practice. He did not deny that the .25 caliber automatic was, in fact, concealed on or about his person under the front seat of the car, or that both pistols were loaded. He further testified that he did not tell the officer, and the officer did not ask him why he was carrying either gun.

The record further shows he testified as follows:

“Q. Both of these guns are your guns, is that correct?
“A. Yes, sir.
“Q. Now, are you saying that this gun was not under the front seat? A. No, sir.
“Q. Was the officer correct when he said that he found the gun about eight inches or so underneath the front seat on the passenger’s side?
“A. He could have, sir, I did not place it there.
“Q. You did not see — did you see anybody else place it there?
“A. No, sir.
“Q. You did not see where the officer got the gun?
“A. No, sir.
“Q. You are not saying he is incorrect when he said he got it from underneath the seat?
“A. No.
"Q. You didn’t put the gun underneath the seat?
“A. No.”

There are other reasons why the answer •of the police officer to the last question was not prejudicial and that is because it was little more than repetition of the officer’s prior testimony that he did ask the defendant why he was carrying State’s Exhibit 1, a .25 caliber Colt automatic pistol. His further testimony that defendant refused to make a statement in answer was but a different way of testifying to the same fact previously testified to, to wit: that a request as to why he was carrying the gun was, in fact, made otherwise there could have been no refusal.

While a careful reading of the entire record in this case convinces us that the questioned evidence was, in fact, admissible to impeach and discredit the defendant as a witness in his own behalf, nevertheless this court in the case of State v. Murray, 126 Mo. 611, 617, 29 S.W. 700, 702, has previously held that proof of defendant’s silence in a case where such evidence was not even offered in contradiction and impeachment of defendants testimony was, in fact, not prejudicial error justifying a reversal where the State otherwise had made out a strong case against the defendant. The court in that case said: “The circumstance that the accused is in custody, while entitled to weight, will not, of itself, exclude the statement, if the circumstances otherwise properly called for a reply or denial by him. * * * We do not think the circumstances detailed by Officer Freese were such as called for a statement by defendant. He must have felt the restraint of his surroundings, and his silence under such circumstances would constitute the very slightest, if any, evidence of his guilt. But, notwithstanding we hold the proof of defendant’s silence was erroneous, we are also clear that under the facts of this case this alone ought not to cause a reversal of this judgment. Error is presumed prejudicial, and it devolves upon the state, when it is shown, to demonstrate that it wrought no harm to defendant. Upon this record, we think this is shown. * * *” (Italics ours.)

On the record presented in the present case I do not find the error, if any, sufficiently prejudicial to justify the reversal of the judgment and, since we believe the evidence properly admissible to affect defendant’s credibility as a witness, we find no error in the record. I think the court might have far better disposed of this case by applying the Latin maxim, De minimis non curat lex, and affirming the judgment since, in view of the defendant’s own testimony before the jury, the officer’s answer to the last question probably had no more to do with the conviction of defendant than the omission of the word “the” in the indictment in the case of State v. Campbell, 210 Mo. 202, 224, 228, 109 S.W. 706, 712, for which error this court at one time reversed a judgment of conviction.

I would affirm the judgmént.


author: WESTHUES, Judge.

text:
    Alvie OAKLEY, Plaintiff-Appellant, v. DUERBECK COMPANY, a Corporation, and Charles G. Duerbeck and Jessie F. Duerbeck, Defendants-Respondents.
    No. 49359.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Tom R. R. Ely, St. Louis, for plaintiff-appellant.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel, by G. W. Marsalek, St. Louis, for defendants-respondents.
   WESTHUES, Judge.

This is an appeal to review the action of the Circuit Court of the City of St. Louis in entering a summary judgment against plaintiff-appellant in an action to recover $35,000 damages for personal injuries sustained when he fell on a common stairway on premises owned by the defendants-respondents.

Plaintiff Alvie Oakley alleged in his petition that he was a tenant of the defendants Duerbeck Company and Charles G. and Jessie F. Duerbeck at 4617 St. Ferdinand Avenue, St. Louis,, Missouri; further, that on March 17, 1960, plaintiff fell down a common stairway on said premises; that the defendants failed to comply with provisions of the Building Code of the City of St. Louis, Missouri, in not providing hand-railings on the steps and in not having a gutter at the edge of the roof above the porch and stairway; that water dropped from the roof to the steps and froze; that plaintiff fell on the ice and was injured.

Defendants answered denying the claim of negligence and charged that plaintiff was guilty of contributory negligence; defendants alleged further that plaintiff, on April 26, 1960, compromised and settled his claim for damages against the defendants by accepting $1700 and signing a release which discharged the defendants.

Plaintiff filed a reply admitting having been paid $1700 but alleged “that said $1,700.00 was not paid and accepted in full settlement of payment for the injuries sustained by plaintiff but was intended only as reimbursement of plaintiff’s medical expenses, including doctor bill and hospital bill and nine weeks’ lost earnings. Plaintiff, for further reply, states that both he and defendants were mutually mistaken as to the nature, character and extent of plaintiff’s injuries; that plaintiff was informed by his doctor that he would be entirely well and his back entirely healed within eight or nine weeks and that plaintiff and defendants made said payment of $1,700.00 in reliance upon said opinion. Plaintiff further states that the amount paid was grossly inadequate and the execution of the release pleaded by defendants was based upon a mutual mistake in fact; that it developed that plaintiff was unable to return to work for a period of six months after the injury and that his injuries alleged herein developed and became apparent after the execution of said release. That plaintiff’s medical expenses exceeded the amount allocated for same in said settlement and that he will have further medical expenses in the future.

“2. Plaintiff tenders to defendant the sum of $1,700.00 received under the release herein.”

Plaintiff’s deposition was taken and the same was filed in the trial court; by stipulation the deposition was filed in this court.

Under the state of the record, defendants filed a motion for summary judgment. The trial court sustained the motion and entered judgment. Plaintiff appealed to this court.

Plaintiff claims that he and the defendants’ agent in negotiating a settlement were laboring under a mutual mistake of fact as to the extent of the injuries plaintiff had sustained. Plaintiff claims the evidence was such that a jury could so find and therefore the trial court erred in entering a summary judgment.

The precise question before us is whether the trial court was justified in entering judgment against plaintiff. To determine this, we look to the evidence before us and if it appears that there is any evidence to sustain a finding that the parties entered into a settlement agreement under a mistake of fact, the judgment should not have been entered. See S.Ct. Rule 74.04(c) (h), V.A.M.R., and 49 C.J.S. Judgments § 220, p. 388, and cases there cited.

Plaintiff’s deposition with the evidence therein was before the trial court. In this deposition, plaintiff testified in detail as to the circumstances surrounding the settlement and the payment to him of $1700. Plaintiff’s testimony was that a few days after he was injured and while in a hospital, Patrick E. Hickey, representing an insurance company, came to see him about plaintiff’s fall; that Mr. Hickey informed him he was representing an insurance company; further, that plaintiff told Hickey that he did not have a lawyer and did not want a lawyer. “If me and him could get together, that there would be no attorney represent me. He said, well, he wanted to know if I was worrying about my bills, and so forth. And, I said, ‘At the present time, no.’ He wanted to know something about my expenses, my ambulance bill, and my brace that I had on at the time. And, he said something about the * * * I don’t know what you call it,, reimburse some money on it, fix it some way where I wouldn’t worry about it. He told me, ‘When you get out of the hospital, you call me, and I don’t want to worry you any more in the hospital.’ At the time he said he didn’t know that I had a fractured back.

“Q. Did you know it?
“A. Well, I know the doctors told me I did have.”

Plaintiff was in the hospital about twenty days. Within a week after leaving the hospital, plaintiff called- Mr. Hickey and in response thereto, Mr. Hickey went to plaintiff’s house and renewed negotiations for a settlement. Plaintiff testified that Hickey went out on the porch and looked around, then came in and “I said, ‘Now, Mr. Hickey, I know you are an attorney,' and I am just a dumb boy.’ I said, ‘You know whether you think I have got anything coming or not.’ I said, ‘I want to know what your opinion is to start with.’ And, he wanted to know, he said, ‘You don’t have any lawyer?’ I said, ‘No.-’ And he said, ‘Well, I will tell you this, Mr. Oakley:’ He said, ‘I will see * * * if you don’t want to get an attorney, I will see that you are not out no money out of your pocket for expense.’ ”

Plaintiff testified further that he and Hickey figured the total expense incurred by reason of plaintiff’s injuries and the total came to about $1700 including lost time from work which was estimated to be about nine weeks. According to plaintiff, Hickey told him he would inform his company of a proposed settlement and if he obtained the authority, the matter would be settled on the basis of about $1700 being the total expense. The settlement was finally reached on the third visit of Mr. Hickey ■to plaintiff. Plaintiff testified that his doctor had told him he would be back at work in eight weeks; that he would then be “physically as good as I ever was”; that before he settled for the $1700, he called the doctor and was told by him, “ ‘Well, make it nine. * * ⅜ Make it nine weeks.’ ” “So, that is what I did.” The settlement was made on that basis, according to plaintiff.

Plaintiff further testified that he understood that by signing the release the insurance company and the defendants, Duer-becks, would be released from all liability.

Plaintiff makes no claim of fraud against Hickey. In fact, he testified that he and Hickey discussed the question of whether plaintiff should be paid something for his injury and pain. Note plaintiff’s evidence on this subject: “Mr. Hickey also told me at the time I was settling, he said, ‘The question of it was,’ he said, ‘whether you have a case,, whether you can get the jury or not. I don’t mind telling you, if you got you a lawyer, and you would get to a jury,’ he said, ‘you could get,’ I believe he said, ‘three or four times the amount I am paying you,’ but, he said, ‘the question is, whether you got a case to get a jury with it or not.’ He told me at the time I settled.

“Q You understood that?
“A Well, I didn’t know nothing about what it took to make a case.
“Q You understood what he said, you could get more than what he was paying you ?
“A If I had a case to get to the jury, yes.
“Q And, there was also a possibility that you may get less ?
“A Yes.
“Q You were satisfied with the amount, at that time ?
“A At that time, yes.”

Sometime after the release was signed plaintiff went to his doctor’s office and learned from the doctor that he would probably not be able to go to work for six months. Plaintiff testified that after he returned to work, he had trouble with his back and still had trouble at the time of the trial in the circuit court. Plaintiff, in his brief, says, “ * * * the Affidavit of Patrick E. Hickey adds nothing to said contentions and the Deposition of Plaintiff and plainly shows that the parties were mutually mistaken as to the nature, character and extent of the Plaintiff’s injuries and plainly shows that the Plaintiff was misled by his Doctor and so was Defendants’ agent as to the time Plaintiff would be off work and both parties were mistaken as to the extent of Plaintiff’s injuries because the Doctor said that his back would be as good as ever and it developed that plaintiff was seriously injured.”

Plaintiff’s evidence was that both he and Hickey knew that plaintiff had a fractured back. What plaintiff and Hickey did not know, and apparently plaintiff’s doctor did not know, was whether plaintiff would fully recover from the injury he sustained. Was that mistake of fact such as authorizes the setting aside of a contract, in this case, the release? We find that under the law it is not. Jennings v. Metropolitan Life Ins. Co., Mo.App., 166 S.W.2d 339, is a case in point. We quote what was there said since it is appropriate to the facts now before us, 1. c. 344(2-5): “We recognize the rule, invoked by plaintiff, that a mutual mistake as to the existence of a fact which goes to the essence of a contract will render the contract voidable where it later appears that such fact did not exist. But a mutual mistake in prophecy or opinion may not be taken as a ground for recission where such mistake becomes evident through the passage of time. What is today only a conjecture, an opinion, or a guess, might by tomorrow, through the exercise of hindsight, be regarded then as an absolute fact.” See also 17 C.J.S. Contracts § 144, p. 497.

Plaintiff cites the case of Goodman v. Missouri Pacific Railroad Company, Mo., 312 S.W.2d 42, in support of his contention of mutual mistake. The facts in that case were not similar to those in the case before us. Note what the court there said, 1. c. 47 (2, 3) : “We think the evidence hereinbe-fore reviewed was sufficient to support the submission of the issue of mutual mistake of fact. Under the circumstances shown, plaintiff’s knowledge of some soreness and some aches and pains in his back was not the equivalent of knowledge of an injured disc or of a severe and permanent injury. Neither of the parties to the release knew that plaintiff had sustained an injury to an intervertebral disc between the 8th and 9th dorsal vertebrae as plaintiff’s evidence tended to show.”

In the case before us, plaintiff and Mr. Hickey knew at the time and before the release was executed that plaintiff’s back was fractured.

Other cases cited by plaintiff, for example, Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347; Gottlieb v. Isenman, 1 Cir., 215 F.2d 184; and Chapman v. Hawthorne Flying Service, 5 Cir., 287 F.2d 539, announce no rule of law contrary to our holding in this case.

Plaintiff’s evidence disclosed that he signed a release by which he settled his claim in full and discharged the defendants from further liability. Plaintiff’s evidence shows further that he and Mr. Hickey executed the release with full knowledge that plaintiff had a fractured back and that the parties were not laboring under a mistake of fact as that term is understood in legal parlance.

The judgment is hereby affirmed.

All concur.