author: TOWNSEND, Commissioner. PER CURIAM:

text:
    Robert L. ZOELLER, Plaintiff-Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Defendant-Appellant.
    No. 32198.
    St. Louis Court of Appeals. Missouri.
    Sept. 20, 1966.

      Schwartz & Ely, Robert C. Ely, St. Louis, for appellant.
    Gray & Sommers, Don B. Sommers, St. Louis, for respondent.
   TOWNSEND, Commissioner.

Action under the Federal Employers’ Liability Act on account of injuries sustained by plaintiff in the course of his employment as a switchman-foreman for the defendant. Judgment of $6000 in favor of plaintiff was followed by this appeal.

Plaintiff’s testimony shows that at about ten o’clock on the night of Saturday, September 14, 1963 in the course of performing his duties he descended the steep steps of a switch engine to the ground between Track No. 5 and Track No. 4 of the switching tracks in the Carrie Avenue (St. Louis) yards of the defendant. In this area there was no artificial light of any kind. Plaintiff was carrying a lantern which is adapted solely for passing signals; it has no beam and gives a diffused light. In passing down the steps plaintiff had the lantern suspended from his right wrist and held onto the grab iron on the engine with his right hand; in his left hand he held his switching check list. As he stepped off the steps, “I stepped directly onto this pipe that was coming up out of the ground”. The pipe in question was eight to ten inches high, coming straight up on the vertical, and then bent over in an L shape with four or five inches on the horizontal. As plaintiff stepped onto the pipe with his left foot, his leg buckled underneath him and he fell, striking his head on some hard object, either the pipe or a rail. For a brief period he was unconscious ; when he tried to get to his feet his leg would not bear the weight. Fellow workers put him on the engine which proceeded to the other end of the yard. There ice was applied to his ankle because of the swelling. He could not walk on the foot at all that evening. On the following Monday he went to the hospital where his ankle was X-rayed and treated and he was released. An Ace bandage was placed on plaintiff’s leg and he was given the use of crutches for four weeks, after which he walked with a cane. During most of this period the ankle was swollen and pained the plaintiff a great deal of the time. He was off work for seven weeks. Plaintiff returned to work November 5, 1963 and he guesses that since that time he has missed five or six days because of the accident. Plaintiff’s occupation requires him to jump on and off freight cars; when he does not land squarely on his foot it twists and the ankle swells, necessitating hot water treatment at night and propping up of the leg. Such incidents have occurred no more than once a month between November 1963 and January 18, 1965, the date of trial. Changes of weather —dampness, cold temperatures — cause the ankle to ache. Plaintiff noticed no changes in such conditions in the six months preceding trial. For straight walking plaintiff performs as well as before the accident. He participates in swimming and golf as before.

Plaintiff subpoenaed the entire hospital record of plaintiff in the files of Missouri Pacific Hospital; the “X-ray packet” was put into evidence as plaintiff’s exhibit No. 1. Counsel read into the record therefrom the interpretation of and commentary on the X-ray picture of plaintiff’s left foot, taken on September 16, 1963: “X-ray 121642 of the left ankle shows a small triangular fragment of bone on the posterior aspect of the talus, there being an interval of approximately ⅜2 between the fragments of the bone and talus, probably an ostri-gonum trigonum possibly secondary to ancient injury. There is irregularity of the articular surface of the tibia due in my opinion to arthritis of the degenerative type. There is a small irregular shadow of increased density adjacent to the lateral aspect of the distal portion of the fibula, apparently a small ex-ostosis. No recent fracture or dislocation is seen. There has been relative little change in the appearance of the bone and joint structures since examination ten years ago. 9-17-63 — W. K. Mueller, M. D.”

Plaintiff’s medical witness, Dr. Harold E. Walters, orthopedic surgeon, testified that plaintiff visited him upon three occasions, namely, December 2, 1963, March 16, 1964, and December 26, 1964. He measured plaintiff’s left ankle upon each occasion and at the 1963 date found that the left ankle was three centimeters greater in circumference than the right ankle. Upon the other two occasions mentioned the difference in circumference was one centimeter. At the time of the patient’s visit in December 1963, Dr. Walters took two X-rays of the left ankle. He described in detail the conditions disclosed by the picture. He interpreted the plaintiff’s condition as being due to avulsion fractures. Subsequently plaintiff’s counsel put to the witness the hypothetical question as to whether or not the doctor had an opinion whether the injury was the result of the accident of September 14, 1963. Defence counsel objected to the question on the ground that it assumed a fact not in evidence, namely, that “he was a well and healthy man and had no difficulty with his left ankle prior or on September 14, 1963. He had no disabilities as of that date on that ankle * * *”. Upon counsel’s assurance that he would furnish the missing evidence the Court permitted the witness to answer. The assumption was then put in slightly different form: “I want you to assume prior to September 14th or, at least, on that date or several months prior thereto, he had no difficulty in that left foot and ankle and he had no pain and discomfort in that ankle. Now, can you answer the question ?” The answer was: “My opinion would be — is that there is a direct cause or relation between the accident and the injury.” Under similar circumstances the witness was permitted to testify over objection that the injury resulting from the accident was of a permanent nature and that as a result thereof the plaintiff will suffer the discomfort and pain that he described to the doctor. Thereafter defence counsel extracted from the “X-ray packet” (plaintiff’s exhibit No. 1) an X-ray of plaintiff’s left ankle taken in 1953. Upon cross-examination Dr. Walters, who had had no previous opportunity to view the 1953 X-ray, was asked after studying that X-ray, “Would that mean, Doctor, if this X-ray showed it in 1953, what you found on your X-rays were conditions which existed before the accident in 1963 ?” Answer: “I think, that this condition that I mentioned here and the one on the astrangalus certainly existed prior to 1963. They were present in 1953.”

The witness also testified that the swelling in plaintiff’s ankle as of the time of the last examination in December 1964, was a stationary swelling since it had remained the same from March 1964 to December 1964, and that he “would think” such a swelling was “due to a previous injury, an old injury to the ankle, * * *.”

Further cross-examination was as follows :

“Q. * * * Can you say whether the present swelling of one centimeter which has been constant now, your last two examinations, can you say, in your opinion, is a result of the 1963 accident, or the 1953 accident or condition?
A. No, sir. I cannot say what the present day swelling is due to
Q. As to you, what you said concerning the permanency which you find in the man’s ankle now, would your testimony be the same that you cannot say whether the permanent condition which you presently find is the result of the 1963 accident or the 1953 condition?
A. No. Taking only the present examination, the last one I made in December of 1964, I could not say what, what the permanency was due to, whether it was due to an accident in December of, or in September of ’63, or some previous accident.
Q. And, Doctor, I will ask you as to your opinion that he would have pain in the future, considering now what you know, can you say your opinion that he will have pain in the future is something that results from a 1963 accident, or is a 1953 condition ?
A. The answer would be the same. I could not specify it with the things you mentioned.”

Dr. Walters’ recantation of his opinion that there was a causal connection between plaintiff’s present condition and the accident of September 1963 left the record then devoid of any evidence showing such a relationship. Obviously it left the record barren of any evidence that plaintiff’s present condition is a permanent one resulting from that accident; likewise there was no evidence that plaintiff would continue to suffer discomfort and pain as a result of the same accident.

In an attempt to comply with the assurance which plaintiff gave to the Court that evidence of the assumption made in the hypothetical question would be furnished, counsel then recalled the plaintiff to the stand and he testified that for several years prior to September 1963, he had had no disability or pain in his left foot or ankle; that he had had no knowledge of any swelling in his left ankle prior to that month and that there was no difference in the size of his two ankles of which he was aware before September 1963.

No testimony was offered on behalf of defendant.

At this point we digress to note that Doctor Walters had previously diagnosed plaintiff’s injury as a badly sprained ankle with a tearing of several small chips of bone. He was clearly of opinion that the swollen condition of plaintiff’s ankle in December 1963 was due to a recent injury —all which has probative value as to the damages which plaintiff immediately suffered from the September 1963 incident including loss of wages and pain and discomfort. We are therefore of opinion that plaintiff made out an appropriate case for submission to the jury on liability under the Federal Employers’ Liability Act and for damages sustained up to December 1964, when, in the witness’ opinion, the swelling of the ankle had become stationary, or up to the time of trial.

Instruction No. 4 told the jury that if it found the issues in favor of plaintiff, “then you must award plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future, as a direct result of the occasion mentioned in the evidence.” This is MAI 4.01. In the approved form, the words “and is reasonably certain to sustain in the future” are placed in brackets with the appended footnote, “This may be added if supported by the evidence.” Defendant charges error in the inclusion in the instruction of the element of future damages. Would the evidence herein support a conclusion that the plaintiff is reasonably certain to suffer pain and weakness in the ankle in the future? Does the fact that such weakness and pain existed at the time of trial make it reasonably certain that it will persist in the future and that, if it does, it is reasonably certain that such condition flows directly from the accident of September 1963? We review again the following evidence: Plaintiff’s own medical witness testified that, as disclosed by the relative X-rays, the physical structure of plaintiff’s ankle was the same in December 1963 as in 1953. To this must be added the interpretation of the physician who examined the September 1963 X-ray at Missouri Pacific Hospital: “No recent fracture or dislocation is seen. There has been relative little change in the appearance of the bone and joint structures since examination ten years ago.” As to an apparent ex-ostosis shown on the September 1963 film, Doctor Walters stated: “The exosto-sis that you are referring to there * * * I did see on the film that you mentioned, and I feel did predate any accident or injury that took place in December whenever — in September of ’63.” Q: “And that’s the one you looked at was for 1960; that would have been about three years before. Is that right?” A: “It was present on the 1960 film, yes, sir.”

Doctor Walters ultimately stated that he could not state whether the present stationary swelling of the ankle was due to the 1963 accident or to the 1953 condition, although he had previously expressed the opinion that such a swelling was “due to a previous injury, an old injury to the ankle.”

When Doctor Walters examined the plaintiff in December 1964, the latter then complained of pain, discomfort and weakness in the ankle — all conditions about which plaintiff himself testified. Despite this knowledge and that derived from his personal examination of the plaintiff, Doctor Walters was unable to ascribe such conditions to the accident of September 1963. He could not attribute plaintiff’s permanent condition or the possibility of future pain to the accident.

Plaintiff’s situation is characterized by extreme uncertainty as to the course of future events. The uncertainty of his whole situation is further compounded by the fact that, if the uncertain possibilities of pain and weakness were to eventuate, still in order for them to be compensable it would be necessary to show by evidence having probative value that such conditions flowed from the 1963 accident. And that evidence is lacking. If plaintiff’s own expert medical witness could not be of opinion that future pain and weakness which plaintiff may have will result from the 1963 accident a jury could not be expected to make a sound forecast of that issue. In this state of the evidence any consideration of future damages would plainly project one into the realm of imagination, speculation and conj ecture.

The requirement of reasonable certainty is not satisfied by a mere showing of likelihood. The evidence must show more than a possibility. Allen v. St. Louis & S. F. R. Co., 184 Mo.App. 492, 170 S.W. 455. And probability alone will not suffice. Schwend v. St. Louis Transit Co., 105 Mo.App. 534, 80 S.W. 40; Allen v. St. Louis & S. F. R. Co., supra. “Consequences which are contingent, speculative, or merely possible are not to be considered. To justify a recovery for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.” Clark v. Mississippi River & B. T. Ry., 324 Mo. 406, 23 S.W.2d 174, 179. We regard as sound the proposition enunciated in Lucas v. State Farm Mutual Auto Insurance Company, 17 Wis.2d 568, 117 N.W.2d 660, cert. denied, 373 U.S. 922, 83 S.Ct. 1522, 10 L.Ed.2d 423, that before a recovery may be allowed for future pain and suffering there should be competent medical findings and the unsupported subjective statements of the injured party are not sufficient.

We are of opinion that it was error to submit that portion of Instruction No. 4 relating to damages to be sustained in the future.

Defendant maintains also that following Doctor Walters’ recantation of his opinion that the 1963 accident resulted in a permanent injury, there was no longer any probative evidence of such a resultant permanent injury. We agree. Nevertheless in closing argument plaintiff’s counsel upon three separate occasions emphasized the permanent character of the injury resulting from the accident. Upon each occasion defence counsel objected and was overruled by the Court; upon the last occasion the Court said: “The jury will have to base their verdict on what they heard, not on what I tell them it was. I don’t do that. Go ahead.” The objection was directed to the Court and by the Court’s refusal to consider the validity of the same it abdicated a part of the judicial function. The net result was that the Court allowed counsel to ignore the elementary principle that argument should not go outside the limits of the record. Any reference to the permanent condition of plaintiff’s ankle was relevant only if that permanent condition could be attributed to the accident of September 1963; after Doctor Walters had recanted his earlier testimony there was no evidence that that permanent condition had any relationship to such accident. Consequently any reference to “an injury he is going to live with the rest of his life” could be proper only if the evidence had shown that that injury flowed from the incident of September 1963. Upon objection the jury should have been admonished to disregard such reference by counsel and upon a repetition of such argument, objected to, counsel himself should have been admonished. The emphasis placed upon the permanent condition of the ankle (including a reference to “this permanent swelling”) was unjustified and made such argument prejudicial to defendant and objection thereto should have been sustained.

For the reasons stated, the judgment is reversed and the cause remanded for trial on the issue of damages only.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, the judgment is reversed and the cause remanded for trial on the issue of damages only.

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

       It may be noted that the “evidence” of swelling as of December 1964 consisted entirely of measurements showing that the circumference of the left ankle was one centimeter (3%00 of an inch) greater than that of the right. Is this evidence of swelling?


source: Caselaw Access Project

author: DOERNER, Commissioner. PER CURIAM:

license: Public Domain

text:
    STATE of Missouri ex rel. R. W. FILKEY, INC., a Corporation, and Hawkinson Tread Tire Service Company, a Corporation, Relators, v. The Honorable Michael J. SCOTT, Judge of Division I of the Circuit Court of the City of St. Louis, Missouri, Respondent.
    No. 31903.
    St. Louis Court of Appeals. Missouri.
    Sept. 20, 1966.

      Thomas, Busse, Weiss, Cullen & Godfrey, Carl R. Gaertner, Donald Clooney, St. Louis, for relators.
    Robert L. Hyder, Chief Counsel, C. J. McEnery, Jr., Asst. Counsel, Jefferson City, Edwin Brzezenski, Asst. Counsel, Kirkwood, for respondent.
   DOERNER, Commissioner.

This original proceeding in prohibition comes to the writer by a very recent reassignment. Relators are two of the defendants in a cause entitled State of Missouri ex rel., State Highway Commission of Missouri v. Leona Miehe, et al., pending in the Circuit Court of the City of St. Louis before the respondent judge, wherein the State Highway Commission seeks to condemn among others the two parcels of property owned by the respective relators. By this proceeding the relators seek to prevent the respondent from entering an order in said cause quashing certain subpoenas duces tecum heretofore issued therein. It is admitted that unless prohibited the respondent will enter such an order.

Both parties have been guilty of stating in their briefs alleged facts which do not appear in the record before us. The petition, the return to the preliminary rule, and the reply form the pleadings in a prohibition proceeding, Sec. 530.030 et seq., RSMo 1959, V.A.M.S., and except for the contract subsequently referred compose the entire record before us, State ex rel. McCubbin v. Mc-Millian, Mo.App., 349 S.W.2d 453. As developed by the pleadings, the only substantive facts which we may consider are these: In 1958 a contract was entered into between the State Highway Commission (therein called the Commission), the Land Clearance for Redevelopment Authority of St. Louis (therein called the Authority) and the City of St. Louis (therein called the City). The recitals in that agreement read:

“WHEREAS, Commission ' contemplates the construction of an extension of the highway known as the Daniel Boone Expressway from the vicinity of the intersection of Grand and Market Streets in the City of St. Louis to a point in the vicinity of Spruce and 21st Streets in the City of St. Louis (with possible future extensions), and
“WHEREAS, Authority contemplates the immediate acquisition of real estate along said proposed route and in the area known as the Mill Creek Valley area in the furtherance of its objective of redevelopment, and
“WHEREAS, City is to be obligated to pay a portion of the necessary cost of right-of-way for the construction of the proposed extension of the Daniel Boone Expressway by Commission,”

After two paragraphs concerning a future contract between the City and the Commission regarding the sharing of the cost of acquisition of the right-of-way for the highway, the agreement contains the following provisions pertinent to this proceeding:

“3. Commission agrees that, after execution of the aforementioned agreement by the City and Commission, it will reimburse Authority for the real estate acquired by said Authority which lies within the right-of-way of said proposed improvement along the route finally agreed upon by City and Commission. The term ‘reimbursement’ as herein used shall mean Authority’s actual cost of the real estate procured in the manner hereinafter set forth and incidental cost of acquisition and demolition incurred by Authority, including the cost of appraisals, abstracting, cost of preparation of deeds, cost of preparation of contracts, and demolition of any structures on the land to be acquired for right-of-way purposes. In the event any question shall arise because of the demolition or acquisition of buildings partly within and partly outside the right-of-way, agreement for proration shall be effected by representatives of the Commission and Authority. Reimbursement shall be made by Commission on receipt of a proper conveyance of land within the right-of-way required from Authority.
“4. Commission will as soon as reasonably possible furnish Authority with plans showing the extent of right-of-way required for the proposed highway improvement.
“5. Authority will, in accordance with its existing plans, procure all the property described as the Mill Creek Valley Area as indicated on sketch or plan sheet attached hereto and marked Exhibit ‘A’ and being the land to be taken in accordance with the Redevelopment Plan on which Authority is now engaged.
“6. Authority will employ competent appraisers to appraise each tract of land taken, prior to acquisition, and will in all respects comply with regulations and requirements of the governmental agency through which it operates.
“7. Authority agrees that it will acquire all real estate taken by the entirety at its reasonable market value and will acquire partial takings for the difference between the value of the entire tract prior to the taking and the value immediately thereafter. It will permit Commission, or its representatives, or representatives of the Bureau of Public Roads to examine its records, appraisals, and other documents and information relating to land acquisition at any time.”

Subsequent to the execution of the foregoing contract the Land Clearance for Redevelopment Authority employed Joseph Feco, William Randall, Thomas McRey-nolds, and Roy Wenzlick to appraise the relators’ property. Thereafter, at some time not disclosed by the record before us, it filed a condemnation suit in the Circuit Court of the City of St. Louis, styled Land Clearance for Redevelopment Authority of St. Louis v. Sterling Lacquer Manufacturing Company, et al., in which it sought to acquire the relators’ property, among others. Subsequently, on June 4, 1962, the Redevelopment Authority dismissed its suit as to the relators, but the reason for such dismissal does not appear in the record before us.

On April 29, 1963, the State Highway Commission filed the condemnation suit now pending before respondent, in which the relators are named as defendants. Commissioners were duly appointed and assessed relators’ damages for the taking of their property at the total sum of $130,000. Both of the relators, and the State Highway Commission, filed exceptions to the awards and the respective trials as to relators’ damages were set on the trial dockets of March 16 and 23, 1964. In preparation for such trials the relators caused to be issued by said court various subpoenas duces tecum directed to the appraisers Feco, Randall, McReynolds, and Wenzlick, commanding each of them to appear at such trials and to produce their appraisals and other papers therein described. The State Highway Commission filed its motion to quash such subpoenas, and after a hearing on said motion the respondent indicated his intention to enter an order quashing them. This proceeding followed.

It would appear from our statutes that a litigant has a right as of course to require the attendance at the trial of those witnesses, and the production of such documents, as in his judgment are required by him to meet the issues raised in the action. Thus Section 491.090, RSMo 1959, V.A.M.S. provides that in all cases where witnesses are required to attend the trial in any cause in any court of record, a summons shall be issued by the clerk of the court. And the first paragraph of Section 491.100, after specifying that such summons shall be in the form of a subpoena, and what it shall contain, continues:

“ * * * The clerk of the court wherein the matter is pending, or the notary public of the county wherein such trial shall be had, shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed, but otherwise in blank, to a party requesting it, who shall fill it in before service.” (Emphasis ours.)

The only statutory limitation on the right of a litigant to require the production of documentary evidence at the trial is contained in the second paragraph of Section 491.100, which reads:

“Where a subpoena commands the person to whom it is directed to produce the books, papers, or documents designated therein, the court upon motion may, promptly, and in any event at or before the time specified in the subpoena for compliance therewith, quash the subpoena if it is unreasonable and oppressive or condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, or documents.”

In his return to our provisional rule the respondent does not maintain that he intends to enter the order quashing the subpoenas duces tecum because they are “unreasonable and oppressive.” What he contends, in the first instance, is that the Land Clearance for Redevelopment Authority was the agent of the State Highway Commission and was acting as such in its suit to acquire the re-lators’ property by condemnation; that the documentary evidence here involved was prepared by such witnesses for and on behalf of its agent, the Redevelopment Authority, in anticipation of litigation that might follow; and that such writings are therefore its work products which are privileged, and not subject to a subpoena duces tecum.

The record before us does not indicate that any testimony was adduced or evidence introduced at the hearing before respondent on the State Highway Commission’s motion, other than the foregoing contract, and we may assume that there was none. State ex rel. St. Louis Public Service Co. v. McMillian, Mo., 351 S.W.2d 22, 23. Thus the State Highway Commission below, and the respondent here, rely solely on that agreement to substantiate the claim that the Redevelopment Authority was the agent of the State Highway Commission, and that it was acting in that capacity when the writings in dispute were prepared and when it instituted its condemnation suit to acquire relators’ property. In our opinion there are a number of good reasons which effectively refute such a claim. If it were true, as they maintain, that by that contract the Redevelopment Authority became the agent of the State Highway Commission for the purpose of acquiring, on behalf of the State Highway Commission, land for state highway purposes an interesting question would be presented regarding their legal power and authority to enter into such a contract. Both are public entities, created by legislative enactment, for explicit but unrelated purposes, and vested with only such powers as are specifically conferred by our constitution and legislative enactments and with those necessary or proper to enable them to carry out fully and effectively the purposes for which they were created. State ex rel. St. Louis County v. State Highway Commission, 315 Mo. 707, 286 S.W. 1; State ex rel. State Highway Commission v. Camden County, Mo.App., 394 S.W.2d 71. By statute, each is empowered to condemn private property for the purpose for which such public entity was created. In the case of the State Highway Commission, “ * * * Its duties, generally stated, are the construction, improvement, and maintenance of highways * * State ex rel. McKinley Pub. Co v. Hackmann, 314 Mo. 33, 282 S.W. 1007, 1010, and it is given authority to condemn land for such purposes, Section 227.-120, RSMo 1959, V.A.M.S. In the case of the Redevelopment Authority its purpose, in general, is the rehabilitation of blighted areas, and it is authorized to exercise the power of eminent domain in furtherance of that objective. Section 99.420(4), RSMo 1959, V.A.M.S. No authority of the one to appoint an agent for the fulfillment of its specific duty, or of the other to serve in that capacity for such a purpose, has been cited, and we find none. If, therefore, the State Highway Commission by the foregoing contract had attempted to appoint the Redevelopment Authority its agent for the purpose of acquiring land for state highway purposes we would have grave doubts as to the validity of such an agreement. State of Missouri ex rel. State Highway Commission v. County of Camden, supra.

But we think it clear from the contract that the State Highway Commission did not thereby purport to appoint the Redevelopment Authority its agent for such a purpose. While it is evident from the first recital of that agreement that the State Highway Commission was then contemplating the construction of an extension of the Daniel Boone Expressway in the Mill Creek area, it is equally clear from the contract that irrespective of that fact the Redevelopment Authority intended to acquire the land in that area for its own purpose. Thus in the second recital it is stated that the Redevelopment Authority contemplated the acquisition of real estate in the Mill Creek area “in the furtherance of its objective of redevelopment;” and in paragraph 5 the Redevelopment Authority bound itself, “ * * * in accordance with its existing plans * * * ” to procure all of the property in the Mill Creek area “ * * * being the land to be taken in accordance with the Redevelopment Plan on which Authority is now engaged.” Properly analyzed, all that the contract provided was that the Redevelopment Authority was to acquire the real estate in the area in accord-anee with its own plans and for its own purpose; that when the State Highway Commission had determined the location and extent of the highway in that area the Redevelopment Authority would convey to the State Highway Commission so much of the property it had acquired as was needed for the highway; and that the State Highway Commission would pay the Redevelopment Authority its actual cost of acquiring the land conveyed, including the Authority’s expenses for appraisals, abstracting, demolition, and other items. Essentially, it was nothing more than an agreement to buy and sell, and no agency relationship was created.

Furthermore, even if it is assumed that the two public entities were legally empowered to enter into an agency relationship, and that by their contract they did so, there is nothing in the record before us which indicates that when the Redevelopment Authority sought to condemn relators’ property it did so on behalf of the State Highway Commission rather than on its own behalf. The petition filed by the Redevelopment Authority is not before us. It is evident that when the contract was entered into the State Highway Commission had not determined upon the precise location of the contemplated highway, for the first recital contains only general terminal points (“ * * * from the vicinity of the intersection of Grand and Market * * * to a point in the vicinity of Spruce and 21st Streets * * *”), and in paragraph 4 it was provided that the State Highway Commission “will as soon as reasonably possible furnish Authority with plans showing the extent of right-of-way required for the proposed highway improvement.” We have no way of knowing whether, or when, it did so, and if it did, whether the relators’ property was then included within the proposed right-of-way. It does not necessarily follow that because the State Highway Commission now seeks to condemn the relators’ property for highway purposes that the Redevelopment Authority sought to do so for the same purpose. As we have noted, the Redevelopment Authority intended to acquire all of the real estate in the area, and for aught that appears before us it sought to condemn the relators’ property in the furtherance of its own plans for the redevelopment of the area.

Granting that the documentary evidence may be work products and therefore privileged so far as the Redevelopment Authority is concerned, State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69; State ex rel. State Highway Commission v. Jensen, Mo., 362 S.W.2d 568, under the record before us we are constrained to hold that such writings were not work products of the State Highway Commission and that they are not privileged as to it in its action now pending before respondent. State ex rel. St. Louis County Transit Co. v. Walsh, Mo.App., 327 S.W.2d 713.

Respondent also urges that Section 491.100 merely sets forth the procedure to be followed in the issuance of subpoena duces tecum; that Section 510.030 limits what documentary evidence is subject to a subpoena duces tecum; and that under that section the writings in question are not subject to a subpoena duces tecum because they do not contain substantive evidence. As is obvious from the most casual reading of Section 510.030, (and of Civil Rule 58.01, which superseded it) that section is applicable only to the production and inspection of documents prior to trial, and has no relevancy to Section 491.100 which governs the production of documentary evidence at a trial. The only limitation stated in that statute, as we have noted, is that the subpoena must not be unreasonable and oppressive. Clayton v. St. Louis Public Service Co., Mo.App., 276 S.W.2d 621.

We are not called upon in this proceeding to decide whether the instant subpoenas duces tecum are unreasonable and oppressive within the meaning of Section 491.100. See in that connection State ex rel. Burke v. Scott, 364 Mo. 420, 262 S.W.2d 614; State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 8 A.L.R.2d 1124; Ex Parte Brown, 72 Mo. 83. Such a ground for quashing or vacating a subpoena duces tecum is one personal to the witness, which ordinarily must be raised by him. 97 C.J.S. Witnesses § 25, p. 396; 58 Am.Jur., Witnesses, Sec. 27, 28, pp. 37, 38. The witnesses named in these subpoenas have not done so.

The questioned order which respondent proposes to make with reference to the subpoenas duces tecum is in excess of the jurisdiction of respondent and our provisional rule in prohibition should be made absolute.

PER CURIAM:

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

Accordingly, our provisional rule in prohibition is made absolute.

WOLFE, P. J., RUDDY, J., and ROY W. McGHEE, Special Judge, concur.


author: RUDDY, Judge.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, (Plaintiff) Appellant, v. Annie P. JENNEMANN, (Defendant) Respondent.
    No. 32129.
    St. Louis Court of Appeals. Missouri.
    Sept. 20, 1966.

      Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, John Mohler, Leo E. Eickhoff, Jr., St. Louis, and Michael Grove, St. Louis, for plaintiff-appellant.
    Earl R. Blackwell, Hillsboro, for defendant-respondent.
   RUDDY, Judge.

This is a condemnation action by plaintiff, Southwestern Bell Telephone Company, a corporation, to acquire and appropriate a right-of-way and easement across the land owned by defendant. Plaintiff and defendant filed exceptions to the award of the Commissioners and upon a jury trial defendant was awarded the sum of $4,000.00. Plaintiff appealed from the ensuing judgment.

The easement acquired in this condemnation action was a right-of-way to construct, operate, maintain, inspect, replace and remove an underground communications system consisting of underground cables, wires, conduits, surface testing terminals, markers and other necessary appurtenances upon, over and under a strip of land one rod (16½ feet) in width across the land of the defendant. In connection therewith plaintiff acquired (a) the right of ingress and egress across the land of defendant by reasonable routes to and from said right-of-way; (b) the right to place such surface markers and surface testing terminals as may be necessary on said strip; (c) the right to clear and keep cleared all trees, roots, brush and other obstructions from the surface and sub-surface of said strip as may be necessary for the construction, operation and maintenance of said communications system; and (d) the right to install temporary gates in fences crossing said strip, which fences shall be repaired and restored to their former condition following construction. Plaintiff agreed to pay defendant for all damage caused to defendant’s property during the construction, operation and maintenance of said communications system.

The following rights were reserved to the defendant: the right to freely use and enjoy the right-of-way insofar as the exercise thereof does not endanger or interfere with the construction, operation and maintenance of said communications system or create a hazard thereto; the right to cultivate and grow crops, and; the right to establish roadways and utility lines across said easement, except that no building or structure shall be erected within the easement and right-of-way without the written consent of the plaintiff.

During the trial a controversy arose between counsel as to whether or not the rights reserved to defendant, alleged in plaintiff’s petition, permitted filling of dirt over the easement area. In order to settle this controversy plaintiff obtained permission from the court to amend its petition and did amend the petition by giving the defendant the right, “ * * * ‘to raise the grade of the easement area by filling,’ * * *»

The tract of land involved is rectangular in shape and contains about twenty acres. As noted, the easement acquired is 16½ feet in width and extends along the western boundary of defendant’s tract a distance of 794.1 feet. State Highway 1-55 adjoins the western boundary. The easement area involved contains ¾0 of an acre. The tract contained an old farm home and some corn cribs. These structures were of little value. Water and electricity is available to the tract. The land was described as rolling and generally sloping. Defendant’s witnesses said the land was best suited for a residential subdivision and said there were many such subdivisions in the area. If the land is developed into commercial or residential use in the future, plaintiff’s crews and equipment will have to traverse some of the developed property to reach the easement, if repairs to the cable are necessary, because access to the easement from Highway 1-55 will be barred by a high fence to be erected by the State Highway Department on the boundary between defendant’s property and Highway 1-55.

Irvin Brouk testified on behalf of defendant as to damages sustained by reason of the creation of the easement on the tract involved. He gave it as his opinion that the 20 acres were worth $100,000.00 before the acquisition of the easement. He then gave the following testimony in his direct examination:

“Q. Tell us what, in your opinion, the value of that property was after Southwestern Bell buried their cable in there?
“A. Well, they, to my estimation, damaged two acres of ground.
“Mr.’ Richeson: (Attorney for plaintiff) I object to his estimation, Your Honor, there’s no proof of any damage to two acres.
“A. I’d say it was worth only $90,000.00.
“Mr. Blackwell: Now wait.
“The Court: Now I think I’d leave off about what he damaged, just give the valu'e of it, as you figure it, after the taking.
“A. About $9,000.00, after they went through the twenty acres.”

In his cross examination he was asked:

“If you build a high fence along the east side of the easement all you’d do is take three-tenths of an acre away from the Jennemann property, wouldn’t it?
“A. I don’t think so.
“Q. You don’t think so?
“A. No.”

During this witness’s cross examination he was also asked:

“Q. How much an acre do you say it is after the easement?
“A. Well, I didn’t figure it out in acreage but I figured the whole tract with the hole in it with that ditch, that it had devalued two acres and knocked the total value down to $90,000.00.”

At the conclusion of plaintiff’s testimony, Mr. Richeson, Attorney for plaintiff, requested the court to, “ * * * strike all evidence offered on the part of defendant, with respect to what might be .termed severance damages, or damages to the remainder of defendant’s tract other than the easement area, for the reason that there is no support in the pleadings or any evidence of damage to the remainder of plaintiff’s area, by reason of the taking of the easement, and there is not evidence to support any assumption of damage by any witness to the remainder of defendant’s tract by reason, * * “The Court: I don’t recall any evidence.” “Mr. Richeson: Some of them attempted to say that they were basing it on the assumption of damage to two acres.” “The Court: I think though that was straightened out before they got off the stand.” Later in the same colloquy, the Court told counsel for plaintiff that he thought the matter was straightened out and added, “ * * * I’m afraid to do any instructing on that.” Mr. Richeson then said, “All right.”

Plaintiff now contends that the trial Court erred in permitting this witness to testify as to damages to two acres of defendant’s land, and in refusing to strike such testimony on plaintiff’s motion. While it was undisputed that the easement area contained only three-tenths of an acre, witness Brouk seemed to think it contained two acres. However, it will be remembered that the witness was asked to give his opinion as to the value of the twenty acres before and after the easement was acquired, and after the Court suggested that he leave off the estimation of damage to the two acres of ground, he gave the value of the twenty acres after the taking at $90,000.00. On cross examination the witness attempted to clarify this by stating that the laying of the cable had, “ * * * disvalued two acres and knocked the total value down to $90,000.00.” Obviously, by “total value,” he meant the value of the twenty acre tract.

It seems clear to us that the witness thought the easement area consisted of two acres and his testimony can be reasonably construed to mean that the acquisition of the easement area, whether it consisted of three-tenths of an acre or two acres, “dis-valued,” as he described it, the whole tract $10,000.00. He made this clear in his cross-examination when he said, “I didn’t figure it out in acreage but I figured the whole tract * * * that ditch, * * * knocked the total value down to $90,000.00.” He gave this value after the Court told the witness to, “leave off about” the damages to two acres and to give the value of the twenty acre tract “after taking.” We do not think it correct to charge that the witness was permitted to testify as to damages to two acres. We think, as the Court pointed out, if there was any confusion about damages, which confusion we fail to find, it was “straightened out” by the Court before the witness got off the stand. We find no merit in plaintiff’s contention.

In the next point relied on by plaintiff it charges the trial court, “ * * * erred in permitting defendant’s counsel to argue to the jury damages occurring subsequent to the taking, and that plaintiff was not required to pay subsequent damages incurred in making repairs, to defendant’s successors in title; and in failing to take effective action to cure the prejudice.”

Before discussing this point we refer to a paragraph contained in Plaintiff’s Instruction No. 2, wherein the jury was told, “Plaintiff must pay the defendant for all damage caused to her property by plaintiff, its agents, contractors, and employees, during the construction, operation and maintenance of said communication system, so that this damage, if any, shall not be considered by you in arriving at your verdict.” (Emphasis ours.)

In the course of the argument of defendant’s counsel to the jury he stressed the right of plaintiff to cross over defendant’s property to make repairs with whatever equipment was necessary, no matter how heavy, and the consequent effect this right would have on the value of the tract. He then said if plaintiff chose to, “ * * * they could come right square across their front yard or their back yard, through the fences, I don’t mean they’d come in there and tear down the fences, I don’t mean that.” Thereafter, plaintiff’s counsel interposed the following objection: “Now, wait just a minute, Senator, I know you didn’t mean it, but I want to object to it. The petition, pleadings and instructions in this case provide that in the event that Southwestern Bell does any of the things Senator Blackwell is talking about here now, they’d have to pay for it.” Defendant’s counsel then responded, “It does not, Your Honor.” Plaintiff’s counsel then asked the court to instruct the jury to disregard that argument. The following then took place:

“The Court: I think that’s correct. I think, in the instructions, it says they have to pay separate damages if they do some damages going in through there.
“Mr. Blackwell: If the court please, it says they are going to pay the defendant only, says nothing about successive lot owners or successive purchasers, this instruction says nothing about that. Says plaintiff must pay the defendant and that’s all it says, and the defendant in this case, Your Honor, is only one person, Mrs. Jennemann. All future owners, successors in title, it does not mean, Your Honor, it doesn’t say that.
“Mr. Richeson: Any deed from Mrs. Jennemann would carry that right.
“The Court: I believe it will include successive owners, I don’t know but that’s my impression. Let the record so show, if that’s wrong why then it’s reversible. Go ahead.”

Thereafter, the court admonished defendant’s counsel to stay within the evidence and argue the inferences therefrom. The pertinent parts of the colloquy that followed between the court and counsel for defendant and plaintiff were as follows: defendant’s counsel raised the question, “ * * * Suppose they don’t pay for tearing up somebody’s lawn.” Plaintiff’s counsel responded that plaintiff was.subject to a law suit and the court said, “Now, I think the instructions say they are liable for damages if they do damages.” To which defendant’s counsel responded, “Yes sir, they are liable if they’ll pay.” The Court then said, “Of course, you can’t settle that at this time.” Objections to other matters were made by plaintiff’s counsel during this colloquy which are not pertinent to the point relied on by plaintiff and which we have omitted. At the conclusion of the entire colloquy the Court said, “Let’s stay within the evidence and instructions to the jury and argue the case. Let’s don’t get outside the record.” Later in the closing part of his argument defendant’s counsel, when referring to plaintiff’s Instruction No. 2, asked the jury, “ * * * to be sure to read the first line of where it says if they come in there and tear the place up, their going to pay the defendant, you look close there at that word defendant and see if you can see anything about successors in title to the defendant. See if you can find that in there.” Plaintiff’s counsel again objected and asked that defendant’s counsel be reprimanded, to which defendant’s counsel responded, “I’m just asking them to read the instructions there.” The Court then said, “Now, just go ahead and stay off of that.” Thereafter, plaintiff’s counsel asked that defendant’s counsel be reprimanded and the court then said, “Now, I’ve already stated that I •thought it wasn’t to be in the argument. Now, you made your record on it.”

Plaintiff nows says that the reprimands were ineffective and were nothing more or less than tacit approval of the argument of defendant’s counsel.

Defendant’s recovery is limited to the damage sustained by reason of the taking of the easement and as said in Missouri Power & Light Co. v. Creed, Mo. App., 32 S.W.2d 783, l. c. 787, “ * * * does not in any wise contemplate a recovery In advance for any torts that may be subsequently committed.” Also see Union Electric Company of Missouri v. Simpson, Mo.App., 371 S.W.2d 673. Such torts, if they happen, are proper subjects for future damage suits.

However, the original argument that preceded the dispute that ensued, did not seek damages for torts occurring subsequently, but stressed the effect the right of plaintiff to cross over defendant’s property would have on the then market value of defendant’s property. It was the substance of plaintiff’s objection to this argument that precipitated the colloquy that followed regarding whether plaintiff would have to pay successors in title to defendant for damages occurring subsequent to the taking. Obviously, defendant’s counsel was in error in contending that plaintiff was not liable to defendant’s successors in title for damages occurring subsequent to the taking, despite the wording of Plaintiff’s Instruction No. 2. We think the Court made it clear to counsel and the jury that such damages were not recoverable in the instant action. The instructions defined the limits of the recoverable damages. Plaintiff’s objections to this contention were all sustained by the Court. The reprimands asked were given. While they appear somewhat mild when read in the printed record, we have no way of knowing the force or vigor with which they were administered. We disagree with plaintiff’s charge that the Court gave tacit approval to the statements and argument of defendant’s counsel. Plaintiff got all of the relief it asked for during the trial. In considering this complaint of plaintiff we are mindful that the trial court has considerable discretion as to what action should be taken when these matters arise and that an appellate court will not, in the absence of an abuse of discretion, disturb the exercise of the trial court of its discretion with respect to the alleged improper arguments of counsel and its rulings thereon will not be disturbed unless there has been an abuse of discretion. Union Electric Company of Missouri v. Simpson, supra., 1. c. 681 and authorities therein cited. We find no abuse of discretion on the part of the trial court and do not think that the discussion and argument that took place had any effect on the jury’s verdict.

Another complaint is made about the jury argument of defendant’s counsel. In an attempt to answer the jury argument of plaintiff’s counsel, wherein he attempted to minimize defendant’s damages, defendant's counsel told the jury,

“ * * * If I had that tract up there or if you had it and you have a right to consider that, a hundred thousand dollar twenty acre tract, subdivision tract, would you want that cable buried there right under the surface of your ground for any amount of money? I wouldn’t want the thing in there for anything if it was going to knock twelve thousand dollars off of my sale price. If Southwestern Bell is going to make ten million bucks on having it laid there then I want to be paid what my land is worth.
“Mr. Richeson: Wait just a minute, Mr. Blackwell, I want, at this time on account of Counsel’s prejudicial argument to the jury, to move the Court, discharge the jury and declare a mistrial.
“The Court: That’ll be denied but let’s don’t get outside the record.
“Mr. Richeson: I want to move the Court to reprimand Counsel for making that extremely prejudicial argument.
“The Court: That argument about what they’re going to make out of it is not a correct argument. The jury will disregard it.
“Mr. Richeson: I want the Court to reprimand Counsel for making that argument.
“The Court: That’s sufficient reprimand, I think.”

Plaintiff says the circumstances above related, “ * * * required a firm, final and conclusive rebuke to land owner’s counsel, and a warning to refrain from further such conduct,” and contends that the court ruling on the objection and its admonition and reprimand were, “ * * * tantamount to overruling the objection and stating that the conduct of defendant’s counsel was proper.” No such impression could have been gained by the jury. The Court clearly announced to counsel and the jury that the statement complained of, was not a correct argument and instructed the jury to disregard it. The Court also admonished defendant’s counsel not to go outside of the record evidence. Defendant’s counsel should not have made the statement complained of by plaintiff. It concerned matter not within the issues and of course had no evidentiary support. It was not retaliatory and was improper. However, if it does not appear probable that the jury was prejudicially affected the improper statement is not grounds for reversal. Improper statements in jury argument may be cured by proper instructions to the jury by the court. Plaintiff has cited some cases where the jury argument was held to be prejudicial, but they are of little help, because it is generally recognized that the argument complained of in each case must, of necessity, be decided on its own merits. The trial judge must take into consideration the parties, the issues and the general atmosphere of the case. What should be done to correct the effect of an improper statement is a matter for the sound discretion of the trial court. As we have indicated in a ruling on a previous point, whether or not the matter complained of warrants a reprimand or admonition by the court and the extent and vigor of the admonition are addressed to the sound discretion of the trial court. Where the court does so reprimand or admonish counsel with an admonition to the jury to disregard the improper statement, the impropriety of the statement is ordinarily cured by the admonition or reprimand and the court’s instruction to the jury. The Court did tell the jury, as we pointed out, to disregard the improper statement and did admonish defendant’s counsel not to go outside the record and that his argument was not a correct argument. What we said in connection with the prior point is equally applicable here and we find no abuse of discretion on the part of the trial court and the jury verdict does not indicate that the argument that took place had any effect on their deliberation. We point out that it is only in extreme cases that an admonition to the jury to disregard the improper statement will not correct such misconduct on the part of defendant’s counsel. We do not think the statement complained of is sufficient to warrant a reversal.

The final point urged by plaintiff is that the verdict is excessive by at least $3,500.00. Six qualified witnesses testified on behalf of defendant as to the damages sustained by reason of the taking of the easement. It would unnecessarily burden this opinion to relate the testimony of these witnesses as to the reasonable market value of the 20 acre tract before and after the taking of the easement. It is sufficient to point out that their testimony showed damage to the entire tract ranging from $8,300.00 to $12,000.00. While it is true that two of plaintiff’s witnesses testified to only $180.00 damages and another of plaintiff’s witnesses testified to $300.00 to $500.00 damages, it was for the jury to determine the just compensation to which defendant was entitled. While we may in a proper case interfere where the damages in condemnation are grossly excessive; however, where the award of damages is supported by substantial evidence, it will not be disturbed. City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853; Union Electric Company of Missouri v. Simpson, supra, and Empire Dist. Electric Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78. A judgment in a condemnation proceeding should not be disturbed because of a disparity in the testimony of witnesses or even because of a seeming preponderance of the evidence one way or another. City of St. Louis v. Gerhart Realty Co., 328 Mo. 103, 40 S.W.2d 661, 665. The verdict of the jury was supported by substantial evidence.

The judgment should be affirmed. It is so ordered.

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


text:
    Ruby Lorraine LOAGUE, Plaintiff-Respondent, v. Henry Daniel LOAGUE, Defendant-Appellant.
    No. 32211.
    St. Louis Court of Appeals. Missouri.
    Sept. 20, 1966.

      Allen H. Surinsky, St. Louis, for defendant-appellant.
    Forrest Boecker, St. Louis, for plaintiff-respondent.
   RUDDY, Judge.

Defendant appeals from a judgment of the Circuit Court denying his cross-bill for a divorce and directing him to pay plaintiff $21 per week for separate maintenance pursuant to the prayer of her petition.

Plaintiff alleged in her petition that she and defendant were married January 14, 1939, and lived together as man and wife until on or about June 1, 1959, when she entered a hospital for treatment of a mental illness; that after her release from the hospital she was ready, willing, and able to resume her place as defendant’s wife; that defendant abandoned her and refused to provide a home for her or a means for her subsistence, although he was capable of supporting her. Defendant in his answer and cross-bill denies the material allegations in plaintiff’s petition and alleges that plaintiff was moody, obstinate and argumentative; that plaintiff struck the defendant without just cause; that plaintiff had made it impossible for the defendant and plaintiff to live together with their children in that the children of plaintiff were afraid of plaintiff and were afraid to live in the same house with her; that plaintiff associated with other men; that plaintiff failed to properly cook, clean, wash and take care of her house, and that plaintiff deserted the defendant for over a year without cause.

Testimony given by plaintiff discloses that after the marriage ceremony plaintiff and defendant lived together as man and wife and that this relationship continued until she entered State Hospital No. 4 at Farmington, Missouri, on August 19, 1954, with the exception of a short separation, lasting a couple of months, which took place sometime in the year 1943 or 1944. During this initial period two children were born to plaintiff and defendant. Lanny Henry Loague was born August 15, 1940, and Stanley Daniel Loague was born November 28, 1945. During this period she treated her husband with affection and took care of the children. She testified that at the time of the trial both of the children were married and that Stanley was employed and self-supporting and lived with his father at 338 Lee Avenue in Kirkwood, Missouri. During the separation referred to she lived with her parents in Newburg, Missouri, except for a short period when she lived in a room of her own in Newburg, Missouri. The circumstance which led to the separation which occurred in 1943 or 1944 was when her husband told her that he “ * * * had someone else * * , He told her it was a lady he worked with and that he liked her and wanted her, and suggested to plaintiff that it would be a very good idea if she found somebody she liked. She said her husband mentioned the name of Inez Bus-sey as the woman in which he was interested and that he mentioned the names of other women.

During the separation while plaintiff resided in Newburg, Missouri, she became friendly with a soldier who was a Sergeant in the Army stationed at Fort Leonard Wood. She saw him socially at times and admitted that he was in her room, but it was at a time when her grandmother was present. There was an exchange of letters between the Army Sergeant and the plaintiff and four of the letters received by the plaintiff from the Sergeant were introduced in evidence. Some of the letters contained endearing salutations and in one of the letters the Sergeant said “ * * * don’t worry I love you just as much * * She said that her relationship with the Sergeant was just a friendly one and indicated that he would have been interested in her if she had gotten a divorce. However, she said marriage was never discussed between them. She allowed the Sergeant to wear her class ring. After she returned to live with her husband she introduced him to her husband. This occurred after her husband told her that he wanted to meet the fellow, and after she had told her husband that she had been seeing him down at Newburg, Missouri. She said she told her husband that if he (the husband) did not want her, that some day the Sergeant might marry her and said that her husband said that he wanted her to come back. After she returned to her husband she received a letter from the Sergeant and answered it. She said her husband said it was all right. She admitted going to the show with the Sergeant on one occasion; denied that she ever kissed him and reiterated that her relationship with the Sergeant was just on friendly terms, but added, “ * * * but would have been more if we had gotten a divorce.” She said she showed her husband all the letters she got from the Sergeant and then put the letters in a dresser drawer. She did not know that her husband had the letters and had kept them during the many years.

On July 14, 1954, an application for admission to the Hospital for Mental Disorders was made to the St. Louis County Hospital. The name of the informant in the application was Henry Loague, husband of the plaintiff. This application showed, in addition to other matters, that plaintiff’s intellect was good, her habits when sane were industrious and orderly, and when sane she was cheerful and talkative and was not regarded as peculiar or eccentric before the onset of her illness. It showed that the first symptoms of a change in her mental condition were noted five years before the application was made and they were manifested by lack of interest in the home and that the symptoms had been continuous since that time. According to the husband, informant, the symptoms developed gradually and the mental disorder appeared to be increasing. The answer given to a question about homicidal tendencies and disposition to injure others was, “Yes, has threatened Kirkwood business man; also members of her family.” The application further showed that she was suspicious and confused and in answer to the question “What delusions, if any, does patient now have?”, the answer given was “Paranoid.” Following the filing of this application she was placed in Malcolm Bliss Mental Health Center in St. Louis, Missouri.

On July 21, 1954, the Probate Court of St. Louis County, Missouri found plaintiff to be a person of unsound mind and ordered that she be restrained and confined in the State Hospital No. 4 at Farmington, Missouri as a county patient until the further order of the court.

On August 13, 1954, she was admitted to State Hospital No. 4 at Farmington, Missouri. She was accompanied by her husband and the Admission Sheet shows the husband to be the informant of the information contained on said sheet and also shows that he was her guardian at the time. At the time of her admission to this hospital her husband informed the authorities that she kept telling their fourteen year old boy to always be careful, that he might get killed. The Admission Sheet of the hospital also showed that patient had been employed at a department store in Kirkwood, Missouri until July 13, 1954, at which time she was picked up for peace disturbance. It shows that in February of 1953, she was fired from the McDonnell Aircraft Corporation after three months for “bad conduct” and then proceeded to contact the FBI about the supposed Communists’ infiltration at the aforesaid plant. It also shows that the husband was contacted by a lawyer of a neighborhood undertaker because of a threatening letter written by plaintiff to the undertaker stating that she was going to kill him and his family. Similar letters were also sent to a minister. The hospital record shows that her husband took plaintiff out on twelve weekend visits with the approval of the hospital. This was during her first stay at the hospital. While she was at the hospital on this occasion she received thirty-two insulin comas combined with ten electric shock treatments. The diagnosis was “schizophrenic reactions — paranoid type.” She was released on a convalescent leave to the custody of her husband on November 13, 1954. On this occasion her husband signed an agreement to take charge of a furloughed patient wherein he agreed to exercise proper care, protection and supervision over plaintiff, to report at least once every two weeks to the superintendent of the institution, and to convey plaintiff from and to the institution, if required by the superintendent, without expense to the State. In this agreement he stated that his financial condition was such that it was possible for him to make good his guarantee at any time. However, the records show that she was never brought back to the hospital at any time until her second visit which will be discussed later. Also, the hospital records show no reports from defendant to the superintendent.

Plaintiff’s husband brought her home from the hospital and she said that she kept house and for the first time in her life went to a few places, stating that she had not enjoyed much social life before. She conducted herself towards her husband properly and kept house as much as her health would permit. She took care of her husband and the children. She prepared their food and their clothing. She denied that she ever attacked them with scissors and that she ever threatened to hit them with a broom. She thought her children felt pretty good toward her at the time. She said that her husband never took her out to dances and that they had an agreement that he would go out by himself one evening every other week and she would do the same on alternate weeks. She said she used to go to dances and would dance with other men and that her husband knew about this. She never left any of these places with men in her company. The last time her husband ever gave her any money for personal expenditures was when she was living in the house with him between the time of her release from the hospital in 1954 and her re-entry in the hospital in 1957.

Plaintiff again was admitted to and placed in State Hospital No. 4 at Farming-ton, Missouri, on July 24, 1957. For approximately two months prior thereto she had been a patient at the Glenwood Sanitarium in St. Louis County, Missouri. Plaintiff said that her husband put her back in the hospital. On June 26, 1957, plaintiff again was declared to be incompetent by the St. Louis County Probate Court by reason of mental illness and was ordered confined in the State Hospital No. 4 at Farmington, Missouri, as a county patient. On • this second visit to the hospital the Admission Sheet shows the husband to be the informant and shows that after the previous hospitalization patient got along fairly well for a couple of months. It then shows that the patient gradually began to slip back into the former condition and that at the time she was taken to the Glenwood Sanitarium her condition was worse than her former condition; that patient lost interest in her appearance and her house and that the symptoms were very similar to her previous attack only she seemed to forget about the Communists but retained the delusion about the FBI. She felt like people were against her and she stayed in bed most of the time. The Admission Sheet shows her husband as her guardian. The hospital records show that upon her admission on July 24, 1957, she was maintained as an indigent supported by St. Louis County.

Plaintiff remained in State Hospital No. 4 on this occasion until June 8, 1958. Plaintiff’s husband came to visit her on only one occasion during her second stay in the hospital. This was after she was there four or five months and she said that he did not stay very long. He did not bring the children with him, and no one else ever brought the children to visit her. In connection with her release from the hospital she was asked:

“Q. Now, when was the last time that you had occasion to have any communication with your husband? Was it the occasion of this visit or some later time?
A. Well, the last time at the hospital I needed somebody to sign me out, and so I called him, and he got real hysterical and said he didn’t intend to do anything for me.”

Immediately after the answer defendant’s counsel obj ected to the question and answer on the ground it was immaterial and irrelevant to any issue in the case and that it was incompetent. This objection was overruled and defendant’s attorney added, “I also meant to say it would be privileged communication between husband and wife.” The court overruled this objection. She said this was the last time she had talked to her husband.

Plaintiff introduced, over the objection of defendant, copies of two letters from Dr. James F. McFadden, a staff member of State Hospital No. 4, which were approved by Dr. Emmett S. Hoctor, Superintendent of the institution. The first letter, dated May 19, 1958, addressed to the defendant stated:

“It is my opinion that your wife has improved sufficiently to go home for a visit, therefore, we are willing to let her go if you call for her at your earliest convenience.”

On June 2, 1958, a letter of similar import was written to the defendant and is as follows :

“We feel your wife has improved sufficiently to go home on parole. We will appreciate you calling for her at your convenience, and present this letter at the desk when you call.”

The hospital records show no response to these letters. On June 8, 1958 plaintiff left the hospital in the company of her father and her brother and went to the home of her father at Newburg, Missouri. Her father signed the agreement to take charge of a furloughed patient. The hospital records show that the reason for the parole was that the patient had improved, that her mental reactions were good and her physical health was good. She was advised to report regularly and the diagnosis was the same as given on her first visit to the hospital. She stayed with her father at New-burg, Missouri just a short while and then came to St. Louis and went to work for Famous and Barr Company, a department store. She said that from the time she was released to her father from the hospital until the time she brought the separate maintenance suit her husband contributed nothing toward her support. When asked if she had asked her husband for any support she said “ * * * I told him I needed help.” She said that prior thereto he had told her that he did not intend to do anything for her, and that thereafter she did not ask him for support; however, she said she wrote and told her son to tell her husband that she needed support. She wrote the son because the husband was in a hysterical state and as she put it, “ * * * was radical * * At the time of the hearing she was employed at Shoppers’ Fair on Chippewa Street in St. Louis, in the jewelry department as a sales lady. When asked if she did not tell her husband that she would not go back she said, “No, I don’t recall that.” She said that she did tell him that she would not go back if that was the way he wanted it, but that she did need help. All of this took place after she was released from the hospital the second time.

On one occasion in 1960, when living on Gibson Avenue, she had just gotten out of the bath tub when her husband came to the door. Her husband indicated that he wanted to talk to her, and she told him that she did not want him to come in at that time because she was insufficiently clothed. She said he said “okay” and walked away. He did not ask her to come back to him, said she did not refuse to go back to him, and he did not ask her how she was feeling. She said during the period after her second visit to the hospital she supported herself on her earnings and on what her father gave her, and again stated that her husband did not give her anything.

The record in this case shows that the defendant, husband of plaintiff, was plaintiff’s legal guardian at the time she entered State Hospital No. 4 for the first time in 1954, and that he continued as her legal guardian until shortly before November 5, 1964. On November 5, 1964, plaintiff was adjudicated to be of sound mind and capable of managing her own affairs by the Probate Court of St. Louis County, Missouri.

Defendant in his testimony said that the first time he knew about any mental trouble concerning his wife was when she wrote the threatening letters in the year 1954. He said that from the very first day of their marriage his wife was not a good housekeeper and that she “ * * * got a little worse as she went along * * He admitted that she cleaned the house once in a while and that she kept herself clean. Prior to her first stay in the hospital and after the first separation he found a picture in a drawer at home which made him “ * * * pretty mad * * * ” He said he discussed the picture with his wife and they had quite a round about it. Despite this controversy he and his wife continued to live together as man and wife.

Defendant’s wife told him that she had found somebody “ * * * she liked.” She introduced the Army Sergeant to her husband and the two talked. Defendant said, “ * * * I didn’t say too much to him, no cause for argument, if she liked him.” He did not know that the Sergeant was writing to his wife and did not know that his wife was writing to the Sergeant. He did not approve of the exchange of letters. He said he found the letters around the house about six months later (probably meaning after the letters were written). He said his wife asked him for a divorce several times. When defendant’s attention was called to the Application for Admission to Hospital for Mental Disorders filed with the St. Louis County Hospital, wherein it was shown that the informant of the information contained therein was the defendant, he said he did not remember saying some of the things contained therein but admitted that he noticed that there was something wrong with his wife, adding, “ * * * but I’m not a doctor and I don’t know that there was something wrong.” He said that when his wife was released to him from the State Hospital in 1954, there were certain medications called for but that he could not get her down to the hospital for this purpose as he was instructed to do upon release. He said that after her release from the hospital in 1954, she did not take care of the house and that she had something to fight about all the time. He admitted that at times he was the cause of the fight, but said that most of the time he did not give her any cause.

Defendant went to see his wife in 1960 when she lived on Gibson Avenue. He said that she let him in, “ * * * and I tried to make up with her, and no, no dice.” She told him she would not have anything to do with him. He testified, “ * * * I asked her if she wouldn’t reconsider and have something to do with me again, you know, but no, she wouldn’t do it. * * * ” He said he asked her to come back and that she said that she would not, because she would be dissatisfied. He said that while she was in the hospital the second time she wrote him some letters stating she did not want to come back. However, he stated that he did not have the letters. He said that she never did ask him for any money. When he was asked if he knew a lady named Inez Bussey, he answered, “Not that I know of.” He said the name did not sound familiar to him and when he was pressed as to whether or not there was such a person, he said, “Oh, she used to work at Small Arms where I worked.” He denied that he went out with her or had anything to do with her. He said that after his wife returned home, after her first visit to the hospital, that he and the children would bring her food while she was in bed and said she would run them out. When asked why he did not visit his wife more frequently during her second stay in the hospital he said, “I wasn’t financially able most of the time * * He admitted that he did not offer to take her back after her release from the second visit to the hospital. When asked if he knew she was a mentally incompetent person he answered, “Well, I don’t know. The doctor released her from the hospital. Q. And that’s all you cared? A. That’s all I could care.” He admitted that he paid nothing for her upkeep after she got out of the hospital the second time until the order was made for the payment of the pendente lite maintenance allowance. He admitted that he had quit making payments under the pendente lite order, stating that he could not keep up the payments. Admitted that he had never had a gross pay less than $130 a week in the period immediately before the hearing, but said that despite this he could not pay plaintiff the pendente lite allowance. Admitted that he was holding some property of his wife as her guardian and said that he had approximately $1,000 in a bank account on deposit and three Savings Bonds of $25 each belonging to her. He admitted that he owned about thirty $50 bonds and that the house was held in the name of both of them. He denied that he ever agreed that his wife would have one weekend off to go out by herself and that he would have the alternate weekend. He admitted that he used to drink quite a bit and said that he was not a dancer. He said that he would not take his wife back at the time of the trial, complaining that she left him, adding,. “She said she wouldn’t come back even before she got out of the hospital.”

He acknowledged that he had a letter from his wife telling him that she could come out of the hospital. He admitted that he did nothing about it, giving as his excuse, that “The boys were afraid for her to come back to the house, and I had no other place to keep her.” He admitted that he was her legal guardian at that time. He made no attempt to consult with the doctors at the hospital about her release and although he heard rumors that she was out of the hospital he did not know where she was. He said that he and his wife had not lived together since 1957 when she went to the hospital.

The two sons of plaintiff and defendant testified as witnesses for their father, the defendant. Lanny, age twenty-four at the time of his testimony, left the home of his father in March of 1958. He said that during 1952 or 1953 he had been after his mother to iron clothes for him to go to a scout meeting which seemed to provoke an argument between the two and he said his mother got mad and chased him out of the house with a pair of scissors which she was using to trim his scout pants. He-said this incident put him in fear of his mother. He said he quit school because-of the embarrassment he suffered from the condition of his clothes. He first noticed that his mother acted abnormally during-the period from 1954 to 1957. He did not know whether her act with the scissors was due to her mental illness or not. He-said he knew his mother had a problem but his father had never mentioned that she needed help. When reminded that he did' not visit his mother when she was in the-hospital on the second occasion he was asked, “You weren’t interested in her whereabouts or her situation were you? A. No.” When asked if he could have lived in the house with his mother when she got out of the hospital in 1958 he said, “I just didn’t want to. I mentioned to my father I just didn’t care, since she hasn’t done anything for me, I just didn’t want to be around her.”

Stanley, the youngest son, nineteen years of age at the time of his testimony, said that he lived with his wife and his daughter at his father’s home. He said that some time in 1953 his mother pounded him on the back and chased him around the back yard with a broom following an altercation he had with her. On another occasion when he was going to graduate from the sixth grade in school he told his mother he did not want her to go because she dressed so sloppily and it embarrassed him. He said his mother got mad and said, “ * * * if I went down to my friend’s house to play she hoped I got killed.” He said that she reached for a knife and started towards the door but that either his father or his brother stopped her. He said he was afraid of his mother; admitted that he knew she had a problem of mental illness, but said he did not want her to come back home. He told his father that he would “ * * * do anything, get in jail, or anything to get away if he brought her (his mother) back.”

In the first point we take up for consideration, defendant contends that the trial court improperly received the record copies of the two letters addressed to the defendant and written by Doctor James F. McFadden, a staff member of State Hospital No. 4. These letters show that at the time they were written plaintiff had improved sufficiently to go home for a visit and that the institution was willing to let her go home if defendant would call for her at his earliest convenience. The basis of defendant’s contention is that there is no showing that the subject letters were actually mailed. We must overrule defendant’s contention for the reason that the content of these letters was admitted for a limited purpose and was admitted for that purpose by consent of defendant. When these letters were offered, plaintiff’s counsel informed the court that these letters showed plaintiff’s “ * * * mental state at that time, * * * ” meaning the time of the date of the letters. Immediately thereafter defendant’s counsel said, “For the purposes of showing the mental state, I don’t object, but other findings are not binding on the defendant.” The court in its ruling said,

“Well, this is different in that this is a letter by the doctor, who, evidently was in charge of the treatment of the patient, approved by the superintendent, stating that in his opinion, she was in such mental state that she could be released. I think that’s a part of the hospital record to show the progress or lack of progress and what the situation was, and I think for that reason — and it was probably made and entered as of the time — -I think this is an official record of the hospital. That is admissible. The Court will admit it.” (Emphasis ours.)

As' we view the ruling of the court it admitted the letters for the limited purpose of showing that plaintiff, on the dates indicated, was in such a mental state that she could be released from the hospital and that this indicated the progress she was making. Defendant said he had no objection to the admission of the letters for that purpose and they will only be considered for that purpose by this court, as we are sure they were so considered by the trial court. This contention of defendant must be overruled.

In the next point we take up for discussion, defendant complains that the trial court, “ * * * improperly admitted evidence of conversations between plaintiff and defendant, which are privileged.” At no place in defendant’s brief does he tell us what conversations he complains about. However, we suspect it was the conversation plaintiff related she had with defendant the last time she was in the State Hospital when she was looking for somebody, as she said, “ * * * to sign me out * * She said she called her husband and that he got hysterical and said he did not intend to do anything for her. This was the only conversation objected to on the ground it was a privileged communication. The courts have frequently ruled that conversations between husband and wife, which do not take place in the presence of a third party, are privileged communications and are not admissible in separate maintenance or divorce actions. Oliver v. Oliver, Mo.App., 325 S.W.2d 33, and cases cited therein. However, we do not believe the admission of this conversation was prejudicially erroneous because there was other ample evidence to show that defendant did not intend to do anything about getting his wife out of the hospital. In his testimony he acknowledged receiving a letter from his wife telling him she could come out of the hospital. He admitted he did nothing about getting her out, although he was her guardian and had placed her in the hospital. There is other evidence to show he did not intend to do anything for plaintiff. Excluding the privileged communication objected to, there is an abundance of other evidence to show that defendant did not intend to do anything to facilitate plaintiffs release from the hospital or to do anything for her after her release. The conversation objected to will not be considered by us on appeal and we hold that its admission was not prejudicial error and was harmless. Coleman v. Coleman, Mo.App., 318 S.W.2d 378.

The next and principal point urged by defendant is that plaintiff has failed to prove abandonment by the defendant. Although a suit for separate maintenance is a statutory action by law, it is sui generis, based on equitable principles, and governed by equitable procedure and we are required to weigh the equities between the parties as they are revealed by the evidence in each case. Forbis v. Forbis, Mo.App., 274 S.W.2d 800, 809; Oakes v. Oakes, Mo.App., 303 S.W.2d 940, 943; Reeve v. Reeve, Mo.App., 160 S.W.2d 804, 808. We will render such judgment as we think is right under the law and the evidence. We are admonished by Section 510.310 RSMo 1959, 31 V.A.M.S. that the judgment shall not be set aside unless clearly erroneous and due regard is to be given to the opportunity of the trial court to judge of the credibility of the witnesses. While we are not bound by the findings of the trial court it has been stated numerous times that we should not disturb such findings unless we can point to some good reason for doing so. Forbis v. Forbis, supra. Where there is a sharp conflict in the testimony and the evidence does not greatly preponderate one way or the other, we resolve the conflict by according due deference to the findings of the trial judge because of his opportunity to observe the conduct and demeanor of the parties.and their witnesses and to weigh, evaluate and assess their testimony. Oakes v. Oakes, supra.

As we have pointed out separate maintenance is a statutory action at law (Section 452.130 RSMo 1959, 24 V.A.M.S.) and in order to recover plaintiff must show that her husband abandoned her without good cause and refused or neglected to maintain and provide for her. Forbis v. Forbis, supra. There is no need to repeat the extensive statement of facts we have related in order to demonstrate that defendant has refused or neglected to maintain and provide for plaintiff after she entered the State Hospital No. 4 on the occasion of her second visit on July 24, 1957. This is amply shown by relating a few reflections supported by the record. The record shows that the last time plaintiff received any support money was prior to her entry into the hospital in 1957. While in the hospital she was maintained as an indigent person supported by St. Louis County and not by defendant. He admitted paying nothing to his wife for her support or upkeep after she got out of the hospital on June 8, 1958. In our perusal of defendant’s brief we do not find that he seriously contends that he did maintain and provide for his wife after she entered .the hospital the second time. Defendant seems to place his whole reliance on the contention that plaintiff has failed to prove abandonment by him. He contends that if a separation is shown in the record it was with the consent of plaintiff. He relies upon the record, wherein it was shown when plaintiff was asked if she did not write to her husband and tell him she did not want to go back to the house, she answered, “I told him I wouldn’t go back if that was the way he wanted it, but I needed help.” This answer of plaintiff to the question propounded does not indicate that she refused to go back to the defendant. The answer clearly indicates to us, as it must have to the trial court, that she would not go back to the defendant if he did not want her to come back. We think this interpretation of her answer is amply supported by the record which clearly shows she did not tell her husband she would not go back. We defer to the trial court’s findings on this issue in the testimony.

It is unnecessary to engage in a lengthy perusal of the facts which in our opinion clearly demonstrate an abandonment of plaintiff by the defendant, if not .at the time he placed her in the hospital ■on the second occasion, certainly at the time she was released from the hospital on that occasion. During plaintiff’s three months’ stay in the hospital in 1954 he visited his wife twelve times. While plaintiff was in the hospital on the second occasion he visited her only one time in the period of her stay at that hospital which was approximately ten and one-half months. The record shows that he placed her in the hospital at which time he was not only plaintiff’s husband, but in addition, was her legal guardian.

After having placed his wife in the hospital in 1957 he failed and refused to get her when she was eligible for a convalescent leave in June, 1958. He admitted receiving a letter from his wife telling him she could come out of the hospital and he admitted he did nothing about, it. He admitted he did not offer to take his wife back after her release from the hospital, although he knew she was still in the area between mental competency and incompetency. His attitude was that of complete abandonment in her hour of great need, shrugging off her mental condition and her needs with an answer indicating his indifference, “That’s all I could care.” He attempts to excuse his abandonment on the ground that his wife did not say, “ * * * ‘Henry, let me live with you.’ ” The fact is she did say it, in effect, when she wrote the letter he admitted receiving telling him she could leave the hospital. Obviously, she invited him to come and get her. Although he took her out of their home and placed her in a mental institution he refused to take her back. This in our opinion under the circumstances of this case constitutes abandonment in law and in fact. As said in the case of Forbis v. Forbis, supra, 274 S.W.2d l. c. 808, in a quotation from Kindorf v. Kindorf, 178 Mo.App. 635, 640, 161 S.W. 318, 320(4): “And where a husband wrongfully drives his wife from him, and turns her out of doors, such conduct must perforce constitute an abandonment of her. * * * ” Defendant also seeks to excuse his abandonment of plaintiff on the ground that his wife went to dances after she got out of the hospital in 1958 and danced with other men and on the further ground that she associated with the Army Sergeant in 1943 or 1944 and exchanged letters with him. The episode between plaintiff and the Army Sergeant took place as shown in 1943 or 1944, which was about fifteen years before the abandonment. After this episode plaintiff and defendant lived together as man and wife and in 1945 there was born to them their youngest son, Stanley. Whatever took place during this initial separation in the earlier years of their married life was certainly condoned by the subsequent action of defendant and his wife.

It is true that plaintiff went to dances and danced with other men. However. she said that this was with the consent of her husband when she was living with him and evidently because her husband did not care to dance, which he admitted. While the husband denied that he consented to her attendance at these dances, we defer to the trial court’s finding on this matter and find that he knew about her attendance at these dances and consented thereto. We do not approve such action on the part of plaintiff, but we do not think that under the circumstances it amounted to an indignity.

Finally, defendant presents the contention that if this court finds he did abandon the plaintiff that he should be excused from the abandonment because it would have been impossible for the plaintiff to live in the same household with their youngest child. At the time plaintiff was released from the hospital the youngest son was approximately thirteen years of age. Of course this reason advanced by defendant is insufficient to excuse his failure and his neglect to maintain and provide for plaintiff and is insufficient to excuse his abandonment of plaintiff. It must be remembered that plaintiff was under the disability of mental illness from 1954 and probably five years prior thereto until she was restored to reason November 5, 1964. The scissors incident, if it happened, took place in 1952 or 1953. The oldest son, Lanny, said he knew his mother had a problem but that his father never mentioned that she needed help. Therein lies the weakness of defendant’s contention. He failed in his duties as father and as husband to acquaint his children with the needs of their mentally ill mother. Had he instructed his children on the kind of help they could have given their mother, in all likelihood there would have been no problem in her returning to the household after she left the hospital. And the oldest son, Lanny, would never had been heard to say that he was not interested in the whereabouts or the situation of his mother because she had done nothing for him. The children should have learned from their father that their mother’s greatest need was to be needed. Defendant could have learned upon inquiry at the hospital that the authorities felt his wife had improved sufficiently to go home. This he failed and neglected to do. We conclude with a comment we made in the case of Fuemmeler v. Fuemmeler, Mo.App., 381 S.W.2d 27, l. c. 30, involving a mentally ill wife:

“Surely a partner to the marriage vows, ‘in sickness and in health, for better and for worse,’ is entitled to ¿t least the same protection of the law as a person accused of crime. The vows of marriage would indeed be tied by a frail thread if the inconvenience caused by the illness of one marriage partner gave a right of divorce to the other. * * * ”

This same comment is applicable to the facts of this case.

The equities in the record before us are overwhelmingly in favor of plaintiff. We find no error in the judgment of the trial court and therefore it should be affirmed. It is so ordered.

WOLFE, P. J., concurs in result only.

ANDERSON, J., concurs.