author: HOLMAN, Commissioner.

text:
    In the Matter of the ESTATE of O. G. BALLARD, Deceased, Helen Ballard, Administratrix, Appellant, v. CLAY COUNTY, Missouri, L. M. Bywaters, Willard Payton, and Tate Chiles, Judges of the County Court of Clay County, Missouri, Respondents.
    No. 48927.
    Supreme Court of Missouri, Division No. 1.
    April 9, 1962.

      Williams & Norton, North Kansas City, John Lodwick, David Lodwick, Excelsior Springs, for appellant.
    Robert E. Coleberd, Hale, Coleberd, Kin-caid & Waters, Liberty, for respondents.
   HOLMAN, Commissioner.

This discovery of assets proceeding was originally instituted in the Probate Court of Clay County, Missouri, on January 11, 1954, by the filing of an affidavit by the administratrix of the estate of O. G. Ballard, deceased. The parties alleged to be wrongfully withholding assets of the estate were Clay County, Missouri, and the judges of its county court, Boude Crossett, Curtis Hall, and Ford White. Upon the filing of an affidavit alleging that the probate judge was a material witness in the cause the proceeding was transferred to the Circuit Court of Clay County and thereafter, upon the granting of a change of venue, was sent to the Circuit Court of Clinton County. Prior to trial the successors in office of the county judges named in the affidavit were substituted as parties defendants. A trial before the court (a jury being waived) resulted in a judgment for defendants and the administratrix has duly appealed therefrom. We have appellate jurisdiction because Clay County is a party. Art. 5, Section 3, Constitution of Missouri 1945, V.A.M.S.

We will hereinafter refer to appellant as plaintiff and to respondents as defendants.

The controversy in this case is based upon an alleged contract entered into between O. G. Ballard and Clay County on December 7, 1948. Mr. Ballard, then 75 years of age, had formerly been a judge of the Clay County Court. The said agreement reads as follows:

“This agreement made and entered into this 7th day of December, 1948, by and between O. G. Ballard, hereinafter referred to as party of the first part, and the County of Clay in the State of Missouri, acting through and by the Judges of the County Court of Clay County, Missouri, hereinafter referred to as parties of the second part,

“Whereas, O. G. Ballard, party of the first part, has requested that the County Court permit him to live at the County Home of Clay County Missouri; and whereas, said party of the first part is well able to pay the County of Clay for his maintenance and lodging at the County Home; and whereas, there is plenty of room in the County Home of Clay County, Missouri for said party of the first part.

“Now therefore, in consideration of the premises and the sum of Ten Thousand and No/100 Dollars ($10,000.00), the receipt of which is hereby acknowledged by the parties of the second part, it is agreed by and between the parties hereto as follows:

“1. The party of the first part shall be permitted to move into the County Home and should he become dissatisfied at said home and desire to move, then the parties of the second part shall, after deducting from said above-mentioned sum of Ten Thousand Dollars the actual cost of maintaining and providing for said party of the first part during the time that he is in said home, pay over the balance to said' party of the first part.

“2. If party of the first part should die while residing in said County Home, the entire sum of Ten Thousand Dollars shall immediately upon the death of the party of the first part, become the property of party of the second part.

“3. This agreement shall remain in full force and effect for a period of two years from the date of the signing hereof and may be renewed upon the same terms provided that it is agreeable to both parties.”

In accordance with said agreement O. G. Ballard paid $10,000 to Clay County and entered the “County Home” on December 8, 1948, and resided there continuously until April 8, 1952, the date of his death.

In her affidavit plaintiff alleged that the aforementioned contract “was illegal and in violation of the public policy of the State of Missouri.” The interrogatories filed in this cause and the answers of defendants thereto are as follows:

“1. Did you, or either or any of you, at the time of the issuance of the citation herein on January 11, 1954, have in your possession or under your control any money, credits, or property of O. G. Ballard, deceased, or of his estate? If so, state what money, credits or property you, or any of you, held and specifically describe it. Answer: The answer to Interrogatory No. 1 is NO as to each and all of respondents.

“2. Did you, or any of you, at the time of the issuance of the citation herein on January 11, 1954, owe to O. G. Ballard, deceased, or to his estate, any indebtedness of any kind or character? If so, state the amount and origin of such indebtedness and the date of the maturity thereof. Answer: The answer to Interrogatory No. 2 is NO as to each and all of respondents.

“3. Did you, or any of you, under contract dated December 7, 1948, between O. G. Ballard and the County of Clay, in the State of Missouri, receive from said O. G. Ballard in his lifetime the sum of $10,-000.00 under an agreement with said O. G. Ballard that he would be permitted to move into the County Home of said County? If said sum, or any sum, was so received from said O. G. Ballard, state the amount thereof, the consideration therefor, the amount, if any, expended on behalf of said Ballard, the amount, if any, remaining unexpended and under whose custody or control said unexpended sum, if any, remains. Answer: The joint and separate answer of respondents Bywaters, Chiles and Payton to relator’s Interrogatory No. 3 is No. The answer of respondent Clay County, Missouri, to said Interrogatory No. 3 is that said respondent has no knowledge or information about the matters suggested in said interrogatory excepting only such as appear in the public records of Clay County, Missouri, at the court house in Liberty in said county and which are readily available for inspection and examination by any citizen and taxpayer in Clay County, including relator.”

At the trial plaintiff offered considerable evidence, over the objection of defendants, tending to show that Mr. Ballard was physically and mentally weak on December 7, 1948, and that he did not possess the mental capacity to understand the contract he signed on that date.

It was the view of the trial court, as indicated by its “Memorandum and Judgment,” that plaintiff could not prevail until and unless the contract is set aside and that “the court in this case sits as a probate court and has no broader jurisdiction on transfer or appeal than the probate court,” and “the court cannot exercise equity powers in this action at law to provide relief by way of passing on the validity of a contract or setting aside a contract.” The court therefore held that “all evidence taken on the validity of the contract in evidence or bearing on the mental capacity of deceased, is incompetent and inadmissible” and “the competent and admissible evidence fails to show that defendants or any of them have concealed or wrongfully withheld assets of the decedent belonging to the estate of O. G. Ballard, deceased.”

The evidence relating to the mental incapacity of decedent was evidently offered by plaintiff in support of an alternate contention, as plaintiff contended in the trial court and here contends, that the alleged contract was void on its face. In her brief she states that “it is the plaintiff’s position that the contract between the deceased and Clay County was a void contract and that this suit was in the nature of money had and received by payment under a void contract. * * * In this case there never was a contract between the County of Clay and the deceased. Therefore, we should first examine the issues in this case to determine if equitable relief has been sought. This is not an action for the cancellation or reformation of an instrument, or for specific performance, nor any other of the types of extraordinary relief asked for in equity suits. Here the suit is for money which is purely an action at law. Our remedy at law is adequate and we do not have any desire to invoke the jurisdiction of equity, nor would we have the right because the remedy at law is adequate and precludes equitable relief.”

It is our opinion that this contract was void and hence could be brushed aside and disregarded without the necessity of invoking the powers of equity to set it aside. In that situation we need not determine whether the trial court, under the circumstances here presented, had the jurisdiction to invoke equitable powers and set aside the alleged contract.

Section 3349 (unless otherwise indicated all statutory references in this paragraph are to RSMo 1939, and all such sections were in effect on December 7, 1948) provided, in part, as follows: “No county * * * shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law * * *” (now Section 432.070, V.A. M.S.). Section 9590 (now Section 205.-580, V.A.M.S.) provided that “Poor persons shall be relieved, maintained and supported by the county of which they are inhabitants,” and Section 9591 (now Section 205.-590, V.A.M.S.) stated that “Aged, infirm, lame, blind or sick persons, who are unable to support themselves, and when there are no other persons required by law and able to maintain them, shall be deemed poor persons.” Sections 9597 and 9598 (now Sections 205.650 and 205.690, V.A.M.S.) provided that the county court could erect a convenient poorhouse and appoint a fit person to superintend the same and the poor who may be kept therein.

It seems clear from the statutes referred to in the preceding paragraph that the county was authorized to maintain and operate a poorhouse in order to provide a residence for poor persons, i. e., persons unable to support themselves. No statute or case has been cited which indicates that the county was authorized to operate its poor farm as an inn or nursing home to be used as a residence by persons (such as Mr. Ballard) who were able to pay (and would pay) the county an agreed amount for the privilege of residing therein. We have searched the statutory and case law of this state and find no authority for the county to conduct a business enterprise of that nature. It is an established rule that the “authority of a county board to make contracts is strictly limited to that conferred, either expressly or impliedly, by statute, regardless of benefit to the county or of value received * * *.” 20 C.J.S. Counties § 174, pp. 1006, 1007. Also, as provided in Section 3349, supra, counties are expressly prohibited from making any contract unless within the scope of its powers or expressly authorized by law. The instant contract, being unauthorized, was void. See cases cited in annotations to Section 432.070, V.A.M.S., supra; State ex rel. Eubanks v. Board of Commissioners of Sedgewick County, 150 Kan. 143, 91 P.2d 2; Bradford County v. Nuveen, 5th Cir., 133 F.2d 169. Said void contract provides no protection to Clay County in the retention of the money paid by Mr. Ballard. And that is true even though the contract is not set aside. Benton County v. Morgan, 163 Mo. 661, 64 S.W. 119; Faris v. Moore, 256 Mo. 123, 165 S.W. 311. The county, having obtained the money under a void contract, can be required to make restitution. It has been said that “the obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution * * Marsh v. Fulton County, 10 Wall. 676, 19 L.Ed. 1040, 1043.

In a proceeding of this kind the issues are made up by the interrogatories and the answers thereto. In re Lipic’s Estate, 362 Mo. 623, 243 S.W.2d 100. It appears, in effect, from plaintiff’s third interrogatory that she sought to recover only the balance of the $10,000 remaining after deducting the amount expended in support of Mr. Ballard during the time he remained in the County Home. That is right and just. We note that Clay County did not answer that part of the interrogatory nor did it offer any evidence as to the reasonable cost of the support furnished decedent. However, under the circumstances of this case, we are of the opinion that said defendant should be afforded another opportunity to present such evidence, and that the amount found by the court to be the reasonable cost of said support should be deducted from the amount paid by Mr. Ballard in computing the amount of the judgment to be entered for plaintiff. Our mandate will so provide.

Defendants have briefed the point that the judgment should be affirmed because the present members of the county court were not substituted as parties defendants for the county judges named in the original affidavit within one year after the original defendants had ceased to hold office. See Section 507.100(5), RSMo 1959, V.A.M.S. We do not think there is any merit to that contention for the reason that the judges of the county court are not necessary parties to this action. The real party in interest is Clay County. In that situation it would seem to be immaterial whether there was a timely substitution of the successor judges.

It is also the contention of defendants that the trial court did not have jurisdiction of this proceeding because plaintiff had not complied with the statutory procedure by examining defendants under oath before filing written interrogations. Section 473.343, RSMo 1959, V.A. M.S., provides that “If the party cited does not admit the allegations in the affidavit, he shall be examined under oath, after which, at the instance of the administrator or executor, other witnesses may be examined both for and against such party; but before the other witnesses are examined, interrogatories shall be filed in writing, to be answered also in writing by the party cited.” However, it is not a jurisdictional requirement that the person named in the affidavit be orally examined under oath. That provision is for the benefit of affiant and may be waived. In 4 Maus, Missouri Practice, § 877, p. 185, it is said that “If the defendant does not admit the allegations of the affidavit, he may then be examined under oath. At one time the affidavit and oral examination made up the issues and the oral examination was an essential step in the proceeding. It is no longer so, the issues are framed by the written interrogatories and answers. However, the affiant may yet elect to so examine the defendant. By doing so he has the advantage of the information gained to use in framing the actual issues by his interrogatories. On the other hand by such an examination the objection to the defendant’s competency under the ‘dead man’s statute’ has been waived. For this reason, the oral examination is usually declined.” We accordingly rule this point adversely to defendants.

The judgment is reversed and cause remanded with directions to the trial court to hear evidence upon the sole issue as to the reasonable cost of the support furnished Mr. Ballard during the time he resided in the county home; that the sum so determined be deducted from the amount paid by Mr. Ballard ($10,000), and that a judgment be entered for plaintiff and against defendant Clay County for the balance so determined. The judgment should be in favor of the other defendants.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: WESTHUES, Judge.

license: Public Domain

text:
    George HOWELL and Ella Cohoon Howell, Appellants, v. Henry Manford COHOON and Arthur Edward Cohoon, Respondents.
    No. 48495.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied April 9, 1962.
    Bradley & Noble, John W. Noble and Charles M. Cable, Kennett, for appellants.
    Ward & Reeves, Caruthersville, for respondents.
   WESTHUES, Judge.

This action was filed by plaintiffs George Howell and his wife Ella Howell to set aside a quit claim deed dated October 27, 1956. The grantees in the deed were defendants Henry Manford Cohoon and Arthur Edward Cohoon, sons of Ella and stepsons of George. The real estate conveyed by the deed was a 160-acre tract of land located in Pemiscot County, Missouri. Fraud in the procurement of the deed and mental incapacity on the part of Mrs. Howell were the bases upon which plaintiffs sought to have the deed set aside. The trial court found the issues in favor of the defendants. An appeal was taken to this court.

The following is a statement of the evidence introduced at the trial: Plaintiff Ella married Charles M. Cohoon in 1910. To this marriage were born two sons who are the defendants in this case. Cohoon died in 1941. Ella collected $8,000 in insurance on the life of her husband and purchased the 160-acre farm which is the subject matter of this lawsuit. The deed by which the property was conveyed to Ella Cohoon was dated February 10, 1942. The consideration stated in the deed was $15,-000. It was stated in the deed that it was given subject to a deed of trust in the sum of $4,250. In 1942, defendant Henry Man-ford Cohoon was 31 years of age and Arthur Edward Cohoon was 26. These sons rented the land from their mother until 1952 when the mother married George Howell. Ella testified that Arthur paid rent but that Henry Manford paid no rent and further that she signed notes for Henry Manford. It is evident from the record that the sons did not approve of their mother’s marriage to George Howell. From 1952 to the time when this lawsuit was tried, the defendants were employed in the City of St. Louis. By deeds (dated June 11, 1956, and September 29, 1956) executed by plaintiffs, the title to the land was vested in the plaintiffs as an estate by the entirety.

On October 19, 1956, while plaintiffs were on their way home in a car and while plaintiff George was driving, the car left the main traveled portion of the roadway and crashed into a tree. Both plaintiffs were injured, — Ella rather seriously. They were taken to a hospital in Blytheville, Arkansas, where Ella remained for about two months and George for several weeks. On October 27, 1956, eight days after the plaintiffs were injured, the deed in question was executed. By this quit claim deed the land in question was conveyed to the defendants with a life estate reserved in favor of plaintiff Ella, the mother of defendants. The deed recited a consideration of “One Dollar and other good and valuable considerations.” It was agreed that no money was paid to either of the plaintiffs for the deed.

Plaintiffs, to sustain their allegations of fraud, introduced evidence to the effect that plaintiff Ella was so seriously injured that she was unable to transact any business; that she was for all practical purposes unconscious during the first ten days after her injury. Plaintiffs further introduced evidence that plaintiff George Howell was induced to sign the quit claim deed on the representation made by defendants that the paper he signed was to procure money to pay hospital and medical bills. We shall review the substance of this evidence. Plaintiff Ella testified that she had no recollection of having signed the deed in question; that she did not remember acknowledging her signature as shown on the deed; and, further, that she did not remember any visitor being in her room until sometime after October 27, the day the deed was supposed to have been executed. Ella denied that she authorized the filing of a divorce petition which was filed while she was in the hospital; further, that her husband had always been kind to her and had never mistreated her in any way. After plaintiff Ella was discharged from the hospital, she, within a few days, had the divorce petition dismissed. The first petition to set aside the deed was filed on December 31, 1956. The petition on which the case was tried was filed February 18, 1960.

Dr. John Q. Elliott, one of the doctors who treated both plaintiffs at the hospital, testified as a witness for plaintiffs. Dr. Hunter Sims, Jr., who also treated plaintiffs at the hospital, did not testify. Dr. Elliott described Ella’s injuries and her condition as follows:

“A When they brought her into the hospital, she was in a car, they unloaded her out of the car, her left wrist was torn up, both bones were sticking out and her hand was just hanging on there, her mouth was caved in, her lip was split plumb up into her nose, back down on the side, her gum was fractured, she had a fractured kneecap, she had concussion of the brain, she was in a comatose condition. She had a fractured left ankle, too.
“Q Do you recall if she came into the hospital on the evening of the 19th of October, 1956?
“A Yes.
“Q Do you know about how long she remained as a patient in the hospital, roughly speaking?
“A Something better than two months, I believe.
“Q Now, Doctor, at the time you treated her there from the time she came in, you say she was in a coma or a state of unconsciousness, do you know about how long she remained in that state?
“A About ten days before we got any coherent answers out of her.
“Q In- other words, did you see her any number of times during the period of ten days ?
“A Yes, I saw her every day. (Emphasis supplied.)
“Q All right, sir. Doctor, now the injuries that you have described that Mrs. Howell has suffered from and that you treated and that you observed her while she was in the hospital every day, as you stated, let me ask you this question, if she executed a deed on the 27th of October, 1956, in your opinion, was she mentally competent or capable of understanding what she was doing?
“A No, she was not.
“Q She was not?
“A No.”

The record shows that Dr. Elliott visited Mrs. Howell six times from October 19 to October 27, inclusive (October 19, 20, 21, 22, 24, and 27), and that Dr. Sims, Jr., visited her fifteen times during those days (once a day on October 19, 20, and 21; and twice a day on October 22, 23, 24, 25, 26, and 27).

Dr. Elliott described plaintiff George Howell’s injuries as follows:

“A He had a fractured third, fourth, fifth, sixth rib on the left side, fracture of the left patella, I believe it was, compound fracture of the left patella, hematoma of the left plural cavity, bleeding inside the plural cavity outside the lung, collapsed the lung.
“Q The lung collapsed?
“A Yes.
“Q Was there any fluid taken out of his side there?
“A Yes, twice, blood was drained out.
“Q I will ask you did he come to the hospital at the same time Mrs. Howell did?
“A Same time, yes.
"Q I’ll ask you if on the 27th of October of 1956 whether or not in your opinion that he was mentally and physically able to know and transact business?
“A No, he was not.”

Plaintiff George Howell testified that defendant Arthur Cohoon came to see him at the hospital and spoke of some insurance. He stated that on the day the alleged deed was signed, he was in a wheelchair and someone pushed him to his wife’s room; that while there the following occurred:

“A Manford, sitting on the far side, I was sitting on this side and the lady they called Mrs. Young was standing at the dresser, the dresser was at the end of the room, he said, ‘I want you to sign some papers.’ I said, ‘Well, I’ve got insurance.’ I was feeling nervous and bad and all. He said, ‘O, go ahead, that’s all right, there ain’t nothing to it, it is just to get some money.’ I said, ‘How much money?’ He said, ‘$2,000.00 for Mom and two for you.’
“Q Who was this doing this talking?
“A That was Manford.
“Q Manford Cohoon ?
“A Yes, sir.
“Q And were you handed a paper or document?
“A I was handed a piece of paper ' about this long (indicating).
“Q Did you sign it?
“A Yes, sir
“Q Did you read it before you signed it?
“A No, sir.”

George Howell denied that anyone mentioned the signing of a deed and that he had no intention of conveying the land to the defendants. He further testified that he had at no time mistreated his wife.

The hospital records pertaining to the treatment of Mrs. Howell were introduced in evidence by plaintiffs as exhibit I and by the defendants as exhibit 3. This exhibit shows that narcotics for relief from pain were administered to Mrs. Howell at various times during her stay at the hospital. The hospital record shows that on October 26 morphine sulphate was given to Mrs. Howell at 2:00 p. m., and at 8:40 p. m.; on October 27, morphine sulphate was given at 1:45 a. m., and empirin with codeine was given at 5:15 p. m., and at 11:15 p. m.

The evidence on the part of the defendants was in sharp contrast to the evidence of plaintiffs. Albert King, who had been a tenant and lived on the land in question, testified for defendants. He stated that he arrived at the scene of the accident almost immediately after it occurred. He and his brother-in-law took plaintiffs to the hospital. He stated that he talked with Ella before they arrived at the hospital; that she gave him directions about taking care of things; that a few days later, she told him of three places at the home where she had hidden money in the amount of about $300; that he and Ella’s son Arthur found the money where she had directed them to look. Elmer Dennis, the brother-in-law of King, corroborated King’s evidence as to the conversation which occurred on the way to the hospital. Dennis further testified that he talked with Ella at the hospital a few days later.

Mrs. Georgia Hodge was Ella’s private nurse for about seven weeks. She was on duty from 7:00 a. m., to 7:00 p. m., from October 24 to October 27, inclusive. She stated that she conversed with Ella every day; that Ella would introduce her to visitors; that Ella talked to her about getting a divorce; that she heard Ella give Albert King directions about the farm. This witness further testified that Mrs. Howell was not unconscious at any time and talked rationally.

Mrs. Lois Young was the office manager at the hospital; she was also a notary public. She testified that she notarized the deed in question. The substance of her evidence was that Mrs. Howell and Mr. Howell were told that they were signing a deed by which they were conveying the land to Ella’s sons, reserving a life estate interest in the mother.

Mrs. Cora Taylor, 67 years old, and Mrs. Dessie Pearl Garrett, 77 years old, were witnesses. Their evidence was that they had known Ella for many years; that they were friends of Ella; that they visited Ella at the hospital and conversed with her; that they had no trouble understanding Ella and that she was normal as she had been during the years of their acquaintance. A number of other witnesses gave similar evidence of having conversed with Ella at the hospital before the day on which the deed was signed. In addition to that evidence, a number of witnesses testified to the effect that George Howell had mistreated Ella. Elmer Dennis, who lived on the farm in 1956, testified that he saw George Howell strike his wife and knock her down; that he had heard him curse her. Albert King, a tenant on the land in question for a number of years, also testified that George Howell had mistreated his wife and that he had seen him strike her.

The sons and their wives testified. From the evidence of the sons, it appears that after their mother married George Howell ill feeling developed. When the sons heard of their mother’s injury, they immediately drove from St. Louis, Missouri, to Blythe-ville, Arkansas, to see their mother. Man-ford testified he did not go to her room until his mother asked for him; that he did not desire to go until asked because his mother had told him a few years previously that she did not wish to see him again. But after he was told his mother wanted to see him, he went to her and they were reconciled. He further stated that his mother insisted on conveying the land to him and his brother; further, that she insisted on getting a divorce and asked him to have a deed prepared as well as a divorce petition; that he talked to Mr. Reeves, an attorney; that Mr. Reeves prepared the deed but told him he would not prepare a divorce petition; that his mother would probably change her mind. Note that the divorce petition was not filed until November 8, 1956. It was dismissed on December 20, 1956.

Mr. Reeves testified that he talked with Mrs. Howell before the petition was filed; that he dismissed it when she called him and asked that it be dismissed. The petition was signed and sworn to by Mrs. Howell before Mrs. Lois Young, the same person who notarized the quit claim deed. We have not discussed the evidence of a number of other witnesses. What has been said is sufficient to dispose of this case. There is no doubt that Mrs. Howell was seriously injured and perhaps her life was in danger for a few days. There is a sharp conflict in the evidence. The evidence of a number of witnesses for the defendants may be discounted because of their interest in the case. This was not a financial interest, but it appears that a number of witnesses disapproved of Ella’s marriage to George Howell. It was shown that Ella was about ten years older than George Howell. Furthermore, it was in evidence that this was George’s fifth marriage. Then, too, there was the evidence of the mistreatment of Ella by George. However, it is difficult to conceive how so many witnesses could be mistaken or would misstate the facts. Take for example the two women (67 and 77 years old) who were friends of Ella’s: Why would they testify contrary to her wishes ?

Considering plaintiffs’ evidence, we find plaintiff Ella claimed she was not aware of having signed the deed. She is supported by only one witness, Dr. Elliott. His evidence, we confess, is difficult to understand in the face of the numerous witnesses testifying directly to the contrary. The hospital records, plaintiffs’ exhibit I and defendants’ exhibit 3, do not support Dr. Elliott. Note a number of the items in the record: On page 5 of the exhibit, there is a notation which was made on Sunday, October 21, at 7:15 a. m., “Awake and talking”; on page 11, October 24, at 7:00 p. m., “Patient states she is feeling much better”; on page 15, October 26, at 7:00 a. m., “awake talking” and at 10:30 p. m., “Talking” ; and on October 27, (the day the deed was executed), at 6:30 a. m., “a good night” and at 7:00 p. m., two notes, “a good day”- and “no complaints.” We find no item ⅛ the hospital record that indicates that ther patient was in a coma or was unconscious,.

This is a case which clearly falls' within that class of cases where an appellate court must give due deference to the findings of the trial court. 5A C.J.S. Appeal and Error § 1663, p. 589; Mueller v. Mueller, Mo., 318 S.W.2d 365, l. c. 369(6, 7); Blackiston v. Russell, 328 Mo. 1164, 44 S.W.2d 22, l. c. 26(7, 8); Ragan v. Schreffler, Mo., 306 S.W.2d 494, l. c. 496 (1); Southern Reynolds County School District R-2 v. Callahan, Mo., 313 S.W.2d 35, l. c. 38(3); Herrold v. Hart, Mo., 290 S.W.2d 49, l. c. 55(2-5).

Plaintiffs, in their brief, say the deed in question was a voluntary conveyance without consideration or intention to convey title. It must be remembered that the property in question was the property of the mother of the defendants until after her marriage when it was converted to an estate by the entirety. The record does not show that there was any money consideration given for the conversion. A conveyance from parent to child without any property consideration is valid and may not be set aside lightly. 26 C.J.S. Deeds § 18, pp. 613, 614; 67 C.J.S. Parent and Child § 60, p. 767; Blackiston v. Russell, supra, 44 S.W.2d 22, l. c. 27(17-19).

Plaintiffs further briefed the question of undue influence. They say that even though that issue was not presented by the pleadings it was presented by the evidence. We do not agree. Plaintiff Ella Howell relied entirely on the claim that she was not conscious of having signed, the deed. She testified she did not remember that her sons were at the hospital. Plaintiff George Howell relied entirely on fraud, claiming that he was made to believe he was signing a paper to obtain money from an insurance company.

Considering the evidence in its entirety, we have concluded that we should not set aside the judgment of the trial court.

The judgment is affirmed.

All concur.


author: STOCKARD, Commissioner.

text:
    Anita O’BRIEN, Appellant, v. CITY OF ST. LOUIS, a Municipal Corporation, and Eugene Klein and Helen Klein, Respondents.
    No. 48814.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.

      Gregg Wm. Keegan, St. Louis, Stephen Gilmore, St. Louis, of counsel, for appellant.
    Thomas J. Neenan, City Counselor, Alvin J. McFarland, Associate City Counselor, St. Louis, for respondent City of St. Louis.
    Willson, Cunningham, McClellan & Gunn, Jerome M. McLaughlin, St. Louis, for respondents Klein.
   STOCKARD, Commissioner.

This is an appeal from the judgment of the Circuit Court of the City of St. Louis entered on a jury verdict in favor of the defendants in plaintiff’s suit for personal injuries resulting from a fall on a public sidewalk. Plaintiff claimed damages in the amount of $25,000. Appellate jurisdiction is in this court.

On February 3, 1959, about 1:30 o’clock in the afternoon plaintiff left her place of employment'at St. Cecelia’s Convent in St. Louis, Missouri, to walk home. As she was proceeding eastward on the south side of Bates Street in front of the home of defendants Eugene and Helen Klein she fell and was severely injured. There had been ice and snow when she went to work that morning and it was “slippy,” but she said that when she walked home the sidewalks, had been cleared. There was, however,, some snow or ice on the south side of the sidewalk in the 200 block of Bates Street so she walked on that part next to the street, where there was no ice and snow because-it “seemed the best place to walk.” She-stated that she was walking “cautiously” and was “watching where [she] was going,” but her left foot hit a depression or hole, or “caught in that hole,” and she fell on her right hip. She did not see the hole until after she fell. From photographs in-, evidence it appears that at the place where plaintiff claimed she fell there was a break in the concrete at the side of the sidewalk with a triangular piece missing, and that a brick had been placed there which was-substantially but not entirely even with the concrete. This condition had existed for many years.

The evidence on behalf of defendants was to the effect that on February 3, 1959 there was a general condition of ice and sleet throughout the City of St. Louis, and that this condition existed at the time plaintiff fell. Defendants’ evidence was also to the effect that plaintiff did not fall at the place where she said she did, that is, where-the above mentioned defect in the sidewalk was located, but that she fell approximately twenty feet west of that place when she stepped from the gutter onto the ice-covered sidewalk after crossing the street.

On this appeal plaintiff asserts that the trial court erred in admitting testimony of a general icy condition throughout the City of St. Louis and in permitting counsel to comment on it in oral argument. The rule is well established that “A city is not required to remove snow and ice from its sidewalks where such condition is general throughout the city,” Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465, 466, and the city incurs no liability for injuries resulting from such condition, including injuries “caused by a mere slippery condition of a sidewalk due to a smooth coating of ice or snow, * * * unless such condition was due to a preexisting defect in the sidewalk or to other negligence on the part of the municipality, * * 63 C.J.S. Municipal Corporations § 813a(2). See also Rice v. Kansas City, Mo.App., 16 S.W.2d 659; Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236; Luettecke v. City of St. Louis, 346 Mo. 168, 140 S.W.2d 45; Harding v. City of St. Joseph, 222 Mo.App. 749, 7 S.W.2d 707; McQuillin, Municipal Corporations, 3d ed., § 54.84. It is true that plaintiff contended that she was injured by reason of stepping in a hole in the sidewalk, but the city was authorized to show its version of what occurred and what it contended was the cause of her injuries. One of the pleaded defenses of the City of St. Louis was that the injuries of plaintiff “were the direct and proximate result of the icy condition of the sidewalk which was prevalent and existing generally throughout the City of St. Louis.” There was no motion to strike this allegation on the ground that even if true it would constitute no defense, and the issue of whether plaintiff fell “simply and solely because of said sidewalk being coated and covered with ice and sleet, which was general and prevalent throughout the entire city” was submitted to the jury by Instruction No. 5. Plaintiff does not purport to challenge Instruction No. 5 for that reason, but she does attempt to challenge it for another and different reason. Under the city’s theory of the case, whether or not there was a general icy condition throughout the city was material and relevant to its pleaded defense, and the city was entitled to produce evidence during the trial to establish that fact, and to comment during oral argument on the evidence pertaining thereto. For these reasons the general assertions by plaintiff in its brief that it was error to do so are without merit.

Plaintiff also asserts that it was reversible error for counsel for the city to mention on voir dire examination that thirty-three witnesses would be called to testify concerning the icy condition throughout the city. In the voir dire examination counsel for the city stated that “we have a list of some thirty or thirty-five persons who slipped on the ice and fell, and these are the names of those persons. I will ask you if you know any of them, because we intend, if need.? be, to bring them in to describe the icy condition that was prevalent throughout the city. I am going to read these names to see whether or not you know any of them.” Plaintiff then objected “to bringing in thirty or thirty-five witnesses pertaining to the condition of the ice or snow * * * unless it was confined to 214 Bates Street, or in that vicinity.” No objection was made to the statement of counsel that the prospective witnesses were persons “who slipped on the ice and fell.” Counsel for the city then stated that he would not read all the names of the prospective witnesses but would pick them from various parts of the city. Plaintiff’s counsel said, however, that “If he is going to read from a list, let’s have the whole list,” and the entire list was read.

Plaintiff’s objection was premised on the erroneous theory that the city was not entitled to show the general icy condition. It is true that on the voir dire examination there was no occasion for counsel of the city to be arguing his case and commenting on the expected proof, hut plaintiff’s objection did not go to those matters and the trial court was not called to rule thereon. In the argument in her brief to this court plaintiff cites and relies on Blackwell v. J. J. Newberry Co., Mo.App., 156 S.W.2d 14, and Trautloff v. Dannen Mills, Mo.App., 316 S.W.2d 866. Those cases did not involve a suit against a city wherein a pleaded defense was that plaintiff’s injuries resulted from slipping on ice on a sidewalk when there was a general icy condition throughout the city. We find no matter presented on this appeal which occurred in the voir dire examination which requires reversal of this judgment.

The fourth point is that the trial court erred in permitting counsel for the city to argue that “others who had fallen at different parts of the city did not make claims for personal injuries.” In oral argument counsel for the city commented on the testimony of three witnesses for the city. In referring to the testimony of Sergeant Ketcherside, a police officer, he said: “He steps out of the scout car at the Lucas District Police Station and falls down and cracks his head. They take him to the City Hospital. These [referring to the three witnesses] were all people who had been taken to the City Hospital, but not one claim against the City of St. Louis. People just don’t file claims under those circumstances.” No objection whatever was made to the above statements; in fact no objection was made to any part of the argument of counsel for the city. Certainly, upon request, plaintiff was entitled to have stricken out the comment that others who fell did not make a claim. But objections to argument are to be made in the trial court, not for the first time in the appellate court. It is the general rule that the effect of improper argument is considered on appeal to have been waived if proper and timely objection is not made to the trial court so that it may, if the improper argument is of the nature subject to corrective action, take appropriate action under the circumstances to remove the prejudicial effect. Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, 428; Blanford v. St. Louis Public Service Co., Mo., 266 S.W.2d 718. We think the effect of the improper argument or comments could have been removed by corrective action on the part of the trial court. This case does not present the situation where a course of wrongful conduct was pursued in violation of the court’s ruling, see Dunn v. Terminal Railroad Association of St. Louis, Mo., 285 S.W.2d 701, or where the argument standing alone was so inflammatory and prejudicial to remove the likelihood of a fair trial, Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W.2d 454, or where the trial court had the duty to act even though no objection is made. See Critcher v. Rudy Fick, Inc., supra. Plaintiff made no objection to the argument and thereby gambled on a favorable verdict. Under these circumstances she is not entitled to complain of the argument on appeal. Reger v. Nowotny, Mo., 226 S.W.2d 596, 598.

Plaintiff did not seek to recover for medical and hospital expenses, but the proof of injuries and the treatment therefor necessarily disclosed that she was hospitalized and that she received substantial medical attention. In argument to the jury counsel for defendants Eugene and Helen Klein commented that perhaps some of the jurors had a question about “the doctors’ bills and the hospital bills.” He then stated, “Gentlemen, they are not in this lawsuit. You have heard nothing about them.” Plaintiff objected “to this line of argument” because “its irrelevant and immaterial.” The objection was sustained. After a conference at the bench counsel restated to the jury that the doctor and hospital bills were not in the case, and he added that “under our law those are the husband’s claims. No doubt, when this suit is completed, Mr. O’Brien will be filing another one against us for those hospital bills and doctor bills.” No objection was made to these additional comments. Plaintiff now contends that the trial court erred “in permitting counsel * * * to argue that medical and hospital tills were not covered in instant case and instead were part of husband’s case.” We can see no possible error. Counsel told the jury nothing that was not correct according to plaintiff’s theory of the case. It is permissible to argue what may be taken into consideration in arriving at the amount of the damages, and it would indeed be a unique rule which would prohibit the jury being told what was not to be considered. In addition, this argument pertained solely to the amount of damages in the event the jury found for plaintiff on the issue of liability, but the verdict was for defendants. See Merritt v. Mantony, Mo., 353 S.W.2d 768.

By her points 6, 7, 8 and 9 plaintiff asserts that the trial court erred in giving instructions numbered 4, 5, 8 and 9. At least three of the points are so general that they probably present nothing for review. See Civil Rule 83.05(e), V.A.M.R.; and Domijan v. Harp, Mo., 340 S.W.2d 728. In addition, in violation of Civil Rule 83.05 (a), except possibly as to Instruction No. 5, the challenged instruction or the questioned portion thereof was not set forth in the brief. See Brown v. Thomas, Mo.App., 316 S.W.2d 234, 237. However, there is yet a more impelling reason why there had not been preserved for review any alleged error in these instructions. The only objection to each instruction at the time they were offered was as follows: “Object generally to each and every instruction as offered by the defendants, and reserve my objections to any specific reasons at the time of motion for new trial.” It is thus apparent that plaintiff was aware of the provision of Civil Rule 79.03 wherein it is stated that “If any specific objections to instruction have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must he set forth in the motion for .new trial to preserve the error for re■view.” However, the only assignment of error in the motion for new trial pertaining to any and all instructions is as follows: “Because the Court erred in giving and reading to the jury each and every instruction offered on bealf of the defendants over and against the objection of the plaintiff.”

This case was tried on December 14, 1960, and Civil Rule 79.03, effective April 1, 1960, V.A.M.R., is applicable. Under this Rule and Civil Rule 70.02 specific objections to an instruction may be made wholly before submission to the jury, wholly in the motion for new trial, or partly before submission and partly in the motion for new trial, but unless a specific objection is timely made at one place or the other, the alleged errors therein are not preserved for appellate review. Overton v. Tesson, Mo., 355 S.W.2d 909; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710. The sound and logical reason for this Rule is that specific objections to instructions are to be presented to the trial court where the error, if any, can be corrected without the delay and expense of an appeal. If they are not so presented the party is deemed to have waived them. We have, however, carefully examined each instruction to determine whether there exists plain error affecting substantial rights which we may consider in our discretion pursuant to Civil Rule 79.04, V.A.M.R. No such error exists in any of the instructions.

Plaintiff’s tenth and last point in its entirety is as follows: “The statements of counsel for defendant city were prejudicially erroneous to plaintiff obtaining a fair trial.” This, of course, does not comply with the requirements of Civil Rule 83.05(e), V.A.M.R., pertaining to the statement in a brief of a point relied on. From the argument portion of the brief we find that some of the statements about which complaint is made occurred in the course of the examination of witnesses and some occurred in the oral argument. Only one objection was made to the various statements referred to, and that was sustained. Some we consider trivial and of no consequence. One pertains to the statement, already ruled on, pertaining to the fact that other claims were not filed. The objection now made to others seems to be based on the erroneous theory that the city could not show a general icy condition and comment thereon. Not only do the statements not fall within the application of Civil Rule 79.04, V.A. M.R., pertaining to plain error affecting substantial rights, the incidents would not constitute reversible error if properly presented.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Lowell Clyde OVERTON, a Minor, By Basil Overton, his father and Next Friend, Respondent, v. Richard TESSON, Appellant.
    No. 48761.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied and Opinion Modified on Court’s Own Motion April 9,1962.

      Heneghan, Roberts & Cole and John J. Cole, St. Louis, for defendant-appellant.
    Gray & Jeans, James W. Jeans, St. Louis, for plaintiff-respondent.
   HOUSER, Commissioner.

This is a guest case arising out of an automobile accident which occurred in Illinois. Lowell Clyde Overton, a passenger, filed suit against Richard Tesson, owner of the automobile, for personal injuries, charging that due to the wilful and wanton misconduct of defendant in the manner in which he operated the vehicle it left the street and collided with objects off the traveled portion. Defendant denied generally, and pleaded several affirmative defenses, one of which was that plaintiff’s injuries were directly caused by his own wilful and wanton misconduct and that under the circumstances plaintiff’s actions exhibited a reckless disregard for his own safety, which contributed to cause his injuries. Plaintiff sued for $37,500. There was a verdict for defendant. The trial court sustained plaintiff’s motion for new trial on the ground that the court erred in giving Instruction No. 6. Defendant appealed from the order sustaining the motion, and on appeal contends that the court did not so err and asks for the reinstatement of the verdict and judgment.

Defendant, plaintiff and another young man left plaintiff’s house in the City of St. Louis in defendant’s Chevrolet about 9:15 p. m. on the night in question. They drove to defendant’s sister’s house near Granite City, Illinois. After 15-30 minutes at the sister’s house the three drove to plaintiff’s brother’s house in O’Fallon, Illinois. It had been raining. During the evening it started freezing and the rain turned to sleet and snow. After a couple of minutes at the brother’s house the three went to Ray’s Bar, two miles from O’Fallon, for 30 to 45 minutes, eating and playing pinball machines. According to plaintiff the three went from Ray’s Bar to Slick’s Lakeside Night Club at Eagle Park, Illinois, arriving about 11:30 p. m. or 12:00 midnight, and staying there 45 minutes or an hour. When they left Slick’s Club they walked across the street to a parking lot and entered defendant’s automobile. Plaintiff got in the back seat and fell asleep. Plaintiff testified, “I was passed out.” The next thing he recalled was hearing defendant “hollering for someone to help him out of the car.” Plaintiff had no knowledge of the manner in which defendant was operating the automobile at the time of and immediately prior to the occurrence, and knew nothing about defendant’s driving from the time he got in the car at Slick’s until after the accident happened. Defendant testified they started home directly from Ray’s Bar and did not go to Slick’s Club at all. There was a direct conflict with respect to the matter of drinking. Plaintiff testified all three had “a couple of beers” at defendant’s sister’s house; four or five draught beers each at Ray’s; and that each had a bottle of beer and a shot of cognac and some setups with whiskey at Slick’s; that plaintiff was feeling pretty sick and “couldn’t think too good” and that as to defendant, “I guess you could say he was drunk.” An objection was sustained “as to what he guesses.” This appears in the transcript:

“Q. Then, I believe you [plaintiff] told the jury you thought Dick was intoxicated at Slick’s, is that it ? Did you actually think that ?

“A. I knew it.

“Q. You knew it? A. Yes, sir.

“Q. Will you tell the jury why then you got in the car with him? A. It was the only way I knew how to get home.

“Q. Or why you didn’t sit up and watch his driving?

“A. Because I couldn’t keep my eyes open.

“Q. • Did you make any attempt to or did you just go in the back seat and pass out? A. Yes, sir.

“Q. Is that what you did ? A. Yes, sir.

“Q. You didn’t make any attempt to assist in the driving or looking out, or anything of that kind? Is that right?

“A. Yes, sir.”

Defendant testified no one had anything intoxicating to drink at his sister’s house; that none of them had anything to drink at Ray’s Bar; denied that any of them had gone to Slick’s Lakeside Club, and testified none of them had anything to drink in his presence or to his knowledge on the evening of the accident. Defendant’s version of the accident: Defendant was driving his automobile down the center of one-way Ninth Street in East St. Louis, Illinois at about 20 to 25 m. p. h. The streets were glazed. The ice was in patches. The automobile hit an icy patch, swerved and slid sideways. The back end of his left front fender hooked the rear end of a car parked on the left-hand side of the street, causing defendant’s car to strike the curb. Defendant had no control over the car after it hit the patch of ice. He had been driving the car normally and did nothing unusual in the operation of the automobile immediately before the skidding. After the accident the automobile’s left front wheel was up on the sidewalk, and the bumper was up against an iron fence which it had partially pushed over.

Instruction No. 6 follows: “The Court instructs the jury that if you find and believe from the evidence that plaintiff participated about equally with defendant in the drinking of beer and whiskey on the occasion in question, and if you further find and believe that thereafter plaintiff voluntarily rode as a guest passenger in defendant’s automobile and that he went to sleep in the back seat of said automobile at a time when he knew the nature and extent of drinking on the part of defendant and the icy condition of the streets as mentioned ia evidence, if you so find, and if you further find that such conduct on the part of plaintiff exhibited a reckless disregard for his own safety, then you are instructed that plaintiff is not entitled to recover against defendant and your verdict shall be in favor of defendant Richard Tesson.”

Ground No. 3 of plaintiff’s motion for new trial (the basis for the action of the trial court) follows: “The Court erred in giving Instruction Number Six tendered by the defendant in that said instruction hypothesizes that the plaintiff and defendant participated equally in the drinking of beer and whiskey, and that the plaintiff knew the nature and extent of drinking on the part of the defendant, and that such conduct on his part exhibited ‘a reckless disregard for his own safety.’ This theory is completely at war with the defense theory tendered by the defendant, who testified that he had had nothing to drink during the course of the evening, nor had the plaintiff. The defendant can not rely upon testimony of an adverse party which is completely at war with his own theory for the submission of an exonerating verdict-directing instruction. The Instruction is further erroneous in that it is not a true con-tributorily wilful and wanton instruction, in that the jury has never been asked to find that the plaintiff was guilty of wilful and wanton misconduct. They are merely asked to find that such conduct ‘exhibited a reckless disregard for his own safety.’ The court had previously given a definition of wilful and wanton which far transcends the mere finding of a reckless disregard for one’s safety, and in that regard, this instruction was in conflict with instruction number two.”

On appeal defendant contends there was no error in giving Instruction No. 6, offered by defendant; that a defendant has the right to submit as many defenses as he has and therefore submission of plaintiff's reckless disregard for his own safety was proper even though portions of the instruction were based upon plaintiff’s own testimony that both parties were drinking, which was inconsistent with defendant’s testimony and evidence denying any drinking.

Plaintiff contends the court correctly ruled it error to give Instruction No. 6; that defendant’s unequivocal testimony that neither had consumed any intoxicants is a judicial admission foreclosing him from submitting a defense based upon intoxication of both parties; that it is error to submit inconsistent defenses; that defendant cannot take advantage of plaintiff’s testimony that is inconsistent with defendant’s own testimony and theory of defense.

The trial court’s ruling that Instruction No. 6 was erroneous because contrary to the theory of the defense was based upon two cases, Rucker v. Alton R. Co., 343 Mo. 929, 123 S.W.2d 24, and Picarella v. Great Atlantic & Pacific Tea Co., Mo.App., 316 S.W.2d 642, both of which were subsequently overruled in Tomlin v. Alford, Mo.Sup., 351 S.W.2d 705, a case decided during the pendency of this appeal. Under our ruling in Tomlin v. Alford it follows that defendant was entitled to submit each and every defense he had under the law; that an instruction authorizing a verdict for the defendant, based upon plaintiff’s own wanton and wilful misconduct, founded upon facts and circumstances in evidence, is not erroneous because inconsistent with defendant’s other defensive plea (that defendant was not guilty of wanton and wilful negligence in the operation of his automobile), and that defendant had the right to submit the defense that plaintiff’s conduct exhibited a reckless disregard for his own safety notwithstanding this defense was based upon plaintiff’s evidence and that defendant’s evidence on the issue was contrary to that of plaintiff’s.

Plaintiff strikes at Instruction No. 6 on the further ground that plaintiff’s conduct which would bar his recovery was characterized in a different fashion than defendant’s conduct which would impose liability; that as to the latter (in Instructions Nos. 1, 2 and 3) the phrase “wilful and wanton misconduct” was employed but that as to the former the phrase “reckless disregard for his own safety” was used; that these definitions of the standard of care are in conflict, and should not have been submitted. The basic general concept of the term “wilful and wanton misconduct” appearing in the Illinois guest statute, as stated by the Illinois courts, is an act “done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved.” Myers v. Krajefska, (1956), 8 Ill.2d 322, 134 N.E.2d 277, in which the Supreme Court of Illinois refused to declare erroneous that court’s previous definition in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293. The often quoted definition in Schneiderman, obviously the pattern for Instruction No. 2, and from which the definition of wilful or wanton misconduct is copied into Instruction No. 6, follows: “A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” By this definition wilful and wanton misconduct is equated with conduct which exhibits reckless disregard for safety with consciousness of the impending danger and indifference for the consequences. That the two concepts were used interchangeably in reference to plaintiff’s conduct appears from the fact that Instruction No. 5, plaintiff’s main verdict-directing instruction, contained a required finding “that the plaintiff was not himself guilty of any wilful or wanton misconduct as submitted to you by other instructions, * * That the jury was properly instructed as to the meaning of the term further appears from Instruction No. 2 which follows:

“The Court instructs the jury that wilful and wanton misconduct as that phrase has been used in other instructions given to you in this case means either intentional conduct or conduct committed under circumstances exhibiting a reckless disregard for the safety of others such as a failure after knowledge of impending danger to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.

“You are further instructed that negligence, as that term is used in these instructions, means the failure to exercise that degree of care and caution which a person of ordinary care and prudence would exercise for his own safety and the safety of others under the same or similar circumstances as those shown by the evidence in this case, and that evidence establishing merely the existence of negligence does not prove a charge of wilful or wanton misconduct.”

Since the two concepts (wilful and wanton misconduct on the one hand and reckless disregard for safety with knowledge of the danger on the other) under Illinois law are treated as synonymous we do not share plaintiff’s view that these standards of care are in conflict. An instruction properly hypothesizing facts sufficient to come within these definitions is sufficient as a “true contributorily wilful and wanton instruction” notwithstanding the words “wilful and wanton” are not employed.

Finally, it is urged that Instruction No. 6 “failed to include a jury finding that plaintiff’s misconduct contributed to cause his injuries” and that “Such failure to submit a finding of proximate cause was error.” On appeal from an order granting a new trial for a specific reason the burden is on appellant to show that the court erred in sustaining the motion upon the ground specified, Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739, 741, and appellant assumes no other burden. City of Kennett v. Katz Const. Co., 273 Mo. 279, 202 S.W. 558, 560. Respondent, in defending the action of the court in sustaining the motion, is not confined solely to the ground specified by the court, Berkemeier v. Reller, supra; Graefe v. St. Louis Transit Co., 224 Mo. 232, 123 S.W. 835, 840, but may show that notwithstanding the motion is not sustainable on the ground specified, there are other grounds alleged in the motion for new trial under which the motion should have been sustained. Berkemeier v. Reller, supra; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678, 683. “[Respondent is entitled to have the other assignments of error in his motion reviewed ” Cantwell v. Zook, Mo.Sup., 250 SW.2d 980, 981, and “if other assignments in the motion for a new trial will support the order granting the new trial, then such order should be affirmed, * * *.» Engleman v. Railway Express Agency, 340 Mo. 360, 100 S.W.2d 540, 544. But such other ground must have been "preserved in the record " or it will not be considered. City of Kennett v. Katz Const. Co., supra, 202 S.W., l. c. 560. The appellate court will not consider other grounds relied upon to sustain the order, if respondent does not point to “some assignment of error in his motion for new trial that would sustain the action of the trial court in granting him a new trial.” State ex rel. Spears v. Hughes, (en banc) 346 Mo. 421, 142 S.W.2d 3, 5. (All italics ours.) This last alleged error upon which respondent depends in defending the action of the trial court was not preserved in this record. No such specific objection was made under Civil Rule 79.03, V.A.M.R. before submission to the jury, and no such allegation of error was set forth in his motion for new trial under Civil Rule 70.02, V.A.M.R. Accordingly, the point is not preserved for appellate review. Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 711.

The judgment is reversed and the cause is remanded with directions to reinstate the verdict and judgment for defendant.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Which we have recognized as the rule announced by the Illinois courts in defining wilful and wanton misconduct. Barnes v. Lackey, Mo.Sup., 319 S.W.2d 638, 642; Boehrer v. Thompson, 359 Mo. 465, 471, 222 S.W.2d 97, 99.


author: EAGER, Presiding Judge.

text:
    Marion V. AYRES, Appellant, v. Virgil Guy KEITH, Respondent.
    No. 48684.
    Supreme Court of Missouri, Division No. 2.
    March 12, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied and Opinion Modified on Court’s Own Motion April 9,1962.

      William R. Kirby, St. Louis, for appellant.
    W. Munro Roberts, Jr., James J. Sauter, Heneghan, Roberts & Cole, St. Louis, for defendant-respondent.
   EAGER, Presiding Judge.

Plaintiff sought damages in the sum of $20,000 for personal injuries sustained when, as a pedestrian, he was struck by defendant’s car. The jury returned a verdict for defendant, hence this appeal. Plaintiff, a man sixty-five years of age, was engaged in selling newspapers at the intersection of Grand and Gravois in the City of St. Louis; he had boxes at the southeast and northwest corners. Grand Avenue runs generally north and south; Gravois, with six traffic lanes, crosses it at a somewhat oblique angle, running slightly northeast-southwest. There were traffic lights at all corners. The injury occurred at about 7:45 a. m. on September 15, 1959, when traffic was very heavy. At this hour the city had marked off, as was usual at such times, an additional lane for eastbound (downtown) traffic by putting out yellow rubber markers; in other words, the inside westbound lane was specifically marked for eastbound traffic during the morning rush hour.

A pedestrian crosswalk, ten feet wide, ran north and south across Gravois just east of Grand, the westerly edge being a continuation of the easterly curb line of Grand. This walk was marked by rectangular white blocks set into the paving. At the center of Gravois was a “midway” or safety zone, sometimes also described as a “V-Box.” This was formed by five traffic buttons and connecting white lines; two of the buttons, each fourteen inches in diameter, were placed abutting each other in the west edge of the crosswalk; two others were similarly placed in the easterly edge, ten feet east; the portion of the street so set off was a rectangle ten feet by twenty-eight inches. Another traffic button was placed fifty feet to the east in the center of Gravois; from this white lines were painted to connect with the easterly corners of the rectangle. Thus, the lines came more or less to a point at the east. The obvious effect of this “V” arrangement was to divert traffic away from the rectangular zone.

On this occasion plaintiff had started across Gravois from south to north, and he had reached the center; there the light had turned red against him and he had stopped. Defendant was driving easterly, in the additional lane for downtown traffic, and was thus north of the midway. Plaintiff testified that while he was standing in the rectangle between the four buttons, and facing “mostly east” watching traffic going west, he was struck by defendant’s car; that he fell somewhat east of the crosswalk, and at least partly in the extra traffic lane. Defendant was driving at about 15-20 miles per hour in heavy traffic. He testified: that the light was green for him at this intersection; that he had already crossed the intersection when he first saw plaintiff, that the back of his car was then 25-30 feet past the intersection, and that plaintiff was standing on the “double white line” about 20-25 feet ahead, facing south; that plaintiff suddenly turned and started to run north; that he, defendant, swerved and applied his brakes, but that plaintiff ran into his right front fender; that he stopped in about 15-20 feet; that plaintiff was lifted and spun a little by the impact as he struck the car, and that he lay practically on the center lines. There was a slight indentation on the right front fender of defendant’s car, 23-24 inches back of the headlight. The only other eyewitness, a Mr. Widmer, was driving east in the regular lane next to and south of the center of Gravois. He testified: that when he was just east of the center of Grand he saw plaintiff standing on the center strip of Gravois and, as he recalled, at the “extreme eastern edge of the crosswalk,” facing northeast; that suddenly he moved two or three steps north and east into the extra lane, and collided with the side of the right front fender of the car; that he did not see plaintiff look toward the eastbound traffic; that the car stopped in 10-15 feet, and that plaintiff was lying completely within the extra traffic lane; that he, Widmer, stopped because the traffic stopped, but that he did not get out of his car. Widmer later notified police that he had witnessed the accident.

A traffic engineer for the city described the midway and the crosswalk; he testified, over objection, that the pedestrian refuge is “between those buttons” and also testified at another point, without objection, that pedestrians are to cross in the crosswalk and stay in that area. It is not controverted that the traffic light for defendant was green at the time in question and red for plaintiff. It is also not controverted that there was a dent (or dents) on the right side of defendant’s fender, and that no damage to the front of his car was demonstrated. The fibula in plaintiff’s right leg, being the smaller of the two bones below the knee, was fractured. It will not be necessary to detail any of the medical evidence.

The first two points of alleged error made by plaintiff involve defendant’s Instructions 5, 6 and 7. Only general objections were made when the instructions were given. In plaintiff’s motion for new trial nine assignments of error were made on Instruction 5, the same assignments on Instruction 6, and the same assignments, with two omissions, on Instruction 7. We have considered these assignments under our Rule 79.03, V.A.M.R., which provides that in such event “specific allegations of error” in the instructions must be set out in the motion. This rule has now been in force for nearly two years. The intent is that both the trial court and the appellate court may know specifically what the objections are, and that the appellate court may know that they have been presented to the trial court. See, generally, Sullivan v. Hanley, Mo.App., 347 S.W.2d 710; Hotchner v. Liebowits, Mo.App., 341 S.W.2d 319. Without quoting all the assignments, we note that they assign the following: that the instruction thus attacked is “not an accurate statement of the law,” that it “fails to hypothesize sufficient facts to constitute a defense,” that it “places an absolute duty on the plaintiff,” that it gives the jury “a roving commission,” that it is “an abstract statement ⅜ * not properly connected by hypothesis of facts,” and that it is “ * ⅜ * repetitious, unduly emphasizes and comments upon certain portions of the testimony ⅜ * None of those assignments point out with any degree of definiteness what is actually claimed to be wrong with the instruction in such a manner that the trial court and the appellate court may immediately perceive the point; nor do they in anywise assure this court that the sundry points now argued (and which have been particularized substantially) were actually presented to the trial court. They are insufficient under our rule.

We have decided to consider on the merits the contention now presented that defendant’s Instructions 5 and 6 were inconsistent and in conflict. In Instruction 5 an ordinance was partially quoted which required that pedestrians should yield the right of way to drivers lawfully proceeding on a green or “Go” signal at intersections controlled by signals; the jury was then instructed (in essence) that if it found that defendant was proceeding on a green signal in the additional traffic lane and that plaintiff, while walking across Gravois “at or near the intersection” with Grand, walked from the center line northwardly against the red light into the additional eastbound lane and collided with defendant’s car, and that therein he failed to exercise the ordinary degree of care (defining it), then he was negligent. Then followed the customary requirement that his negligence must have directly contributed to the injuries.

Instruction 6 quoted in part another subsection of the ordinance requiring that pedestrians crossing at any other place than a crosswalk “shall yield the right of way to drivers’' and that it shall be unlawful not to do so; thereupon the jury was instructed that if it found that there was a duly marked crosswalk (describing its location), that plaintiff was walking across Gravois at a point “outside of said marked crosswalk,” that he walked north from the center line into the additional eastbound lane and into collision with the fender of defendant’s car, and that in so doing he failed to yield the right of way to eastbound automotive traffic, and failed to exercise ordinary care (defining such), then plaintiff was negligent. (Here followed again the requirement of contribution.)

Plaintiff says that these submissions, based upon different subsections of the ordinance and upon different evidence, were inconsistent and irreconcilable, in that the plaintiff was put in a different location in each; and that defendant was not entitled in any event to the theory of submission stated in No. 5 because it was opposed to his own positive testimony supporting an affirmative defense. This argument is premised, of course, upon the fact that defendant testified that the plaintiff was located at a point approximately 40-50 feet east of the crosswalk in the center of the street, but near the point of the “V-Box,” whereas his witness Widmer placed the plaintiff at the extreme eastern edge of the crosswalk. Both, however, testified that plaintiff suddenly turned and proceeded into the extra traffic lane; and in neither instruction was plaintiff charged with negligence merely because of his position or location. Plaintiff cites, generally, two lines of authorities: (a) that a party may not submit inconsistent theories of negligence, State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1; Hamell v. St. Louis Public Service Co., Mo.App., 268 S.W.2d 60; and (b) that defendant may 'not submit a theory (Instruction 5) which is opposed to his own positive testimony in the nature of a judicial admission. Smith v. Siercks, Mo., 277 S.W.2d 521; Burris v. Kansas City Public Service Co., Mo.App., 226 S.W.2d 743; Steuernagel v. St. Louis Public Service Co., 357 Mo. 904, 211 S.W.2d 696; Dennis v. Wood, 357 Mo. 886, 211 S.W.2d 470. Looking first at (b), we find that this principle is not applied to “a mere estimate or opinion” (Burris, Smith, supra) and particularly is this true of testimony concerning the circumstances of an accident, such as time, speed, distance or position, where the testimony is especially subject to inexactness. See the cases just cited, and also Stodgell v. Mounter, Mo., 344 S.W.2d 100, 102. The testimony here of plaintiff’s position was definitely more in the nature of estimates or opinions than of positive statements of fact from actual knowledge. Nor, looking at (a), do we find that these instructions submitted inconsistent theories of negligence. The basic theory of each instruction was that plaintiff was negligent because he walked from a position of safety (or comparative safety) against a red light and into a zone occupied by lawfully moving traffic. His exact position was a mere detail of that theory; and while the two subsections of the ordinance differed somewhat in their precise provisions, the net result of each was that a pedestrian must not walk into a traffic lane where the traffic had the right of way, but must yield the right of way. So long as the testimony of Widmer was not basically opposed to defendant’s theory, defendant was entitled to the benefit of that evidence, and to a contributory negligence submission which included it. See, generally: Anderson v. Woodward Implement Co., Mo., 256 S.W.2d 819, 822; Tomlin v. Alford, Mo., 351 S.W.2d 705. We find no substantive conflict in these instructions ; 'the divergences were technical rather than basic. Defendant, in no sense, offered any evidence which was inconsistent with the theory of plaintiff’s contributory negligence. The jury could not have failed to understand that the ultimate question for its determination was whether plaintiff suddenly turned and walked or ran from the center of the street, against a red light, into a lane of moving traffic, and thus was contributorily negligent. Other objections now made to instructions were not properly preserved, although we do not in 50 ruling intimate that they are valid. We have given appellant the benefit of a very serious doubt in considering the merits of the conflict just discussed.

Plaintiff also assigned error separately as to Instructions 5, 6 and 7 in that they were, allegedly, not supported by the evidence. He has not briefed that assignment here as to any of those instructions, hence it is waived. It is also obvious that the instructions were supported by substantial evidence.

Plaintiff’s next point is that the court erred in excluding two sections of the St. Louis Traffic Ordinance and in permitting a traffic engineer to “interpret provisions of this ordinance.” These sections, offered at different times, were as follows: “(2) Pedestrian midways for the protection of persons crossing heavily traveled streets may be established by the Traffic Commissioner who may erect and maintain protective barriers or other devices thereat. No person shall drive any vehicle through or over any pedestrian midway.” “18. Safety Zone or Midway. The area or space officially set apart within a roadway by the Traffic Commissioner for the exclusive use of pedestrians and which is protected or is so marked or indicated by adequate signs as to be plainly visible at all times while set apart as a safety zone or midway.” (The latter subsection appeared under “Definitions.”) Plaintiff produced a Mr. Boxdorfer, a City Traffic Engineer, whose jurisdiction included this area; he testified on direct examination: that there was a pedestrian midway on Gravois, east of Grand, also called a “V-Box”; that this is a small area in the middle of the street, “separated from the rest of the traffic by button, metal buttons”; that this is shown in aerial photo Exhibit No. 2, and also in Exhibit No. 1; that the “establishment and maintenance of a crosswalk there” also falls under his jurisdiction ; that (in the center of the street) two abutting buttons are located approximately on the curb line (extended) and two more ten feet east, so that the crosswalk runs between these pairs of buttons; that the width of the V-Box is 28 inches, the width of two buttons; that there is a single button fifty feet farther east in the center of Gravois and painted lines are extended from it to the outer edges of the two nearest buttons at the crosswalk. The latter testimony was in answer to a question— “ * * * is there any other button that is a part of the V-Box or Midway” ? On recross-examination plaintiff’s counsel objected to questions which sought to have the witness describe the pedestrian portion of the V-Box, but the witness was permitted to testify without objection, in answer to a question asking the purpose of the ten-foot crosswalk, that, “It is an area in which pedestrians are to cross the street and stay in that area.” The answers subsequently admitted over objections (as conclusions and as interpreting the ordinance) were to the effect that the pedestrian refuge was an area 28 inches by 10 feet in the exact center of the street, between the buttons; counsel for plaintiff again brought out that the “V” was a part of the “V-Box”; then, over objection, the witness stated that this part served “to channel cars away from the refuge * * *” and that the only part “where a pedestrian can stop is between the buttons.”

The controverted sections of the ordinance do not constitute any concrete definition or delimitation of a “midway.” Subsection 2 of Sec. 10 constitutes merely an authority for creating such a zone; the authority was never controverted and was substantially conceded by all; the exclusion of that part of the ordinance could not possibly have been prejudicial. Subsection 18 of Section 1 was offered as contradictory to, or at least explanatory of, parts of Boxdorfer’s testimony. The objections to it were that it was not pleaded and that it was ambiguous unless explained. The objections were sustained. Plaintiff cites cases to the effect that an ordinance may be admissible as evidence, though not pleaded. Hart v. Skeets, 346 Mo. 1118, 145 S.W.2d 143; State ex rel. Wells v. Mayfield, 365 Mo. 238, 281 S.W.2d 9; White v. Hasburgh, Mo.App., 124 S.W.2d 560. In certain instances that is true. We hold that subsection 18 was admissible here and, technically speaking, that it was erroneously excluded. But we also hold that its exclusion was not prejudicial to plaintiff. It did not constitute a specific definition, but rather left it to the Traffic Commissioner to “set apart” the space for a “midway,” or pedestrian refuge. Plaintiff’s counsel produced the traffic engineer, as a traffic expert, and had him describe: the “V-Box,” as a small area separated from the traffic by metal buttons and as 28 inches wide; the width and area of the crosswalk in the center of the street; and the point or “V,” as a part of the "V-Box.” Counsel permitted this witness to state on recross, without objection, that pedestrians were to cross in the crosswalk and stay in that area. Having voluntarily opened up the subject of the midway or V-Box, its lines, markers, area and delineation, and having permitted the witness to say that pedestrians should stay within the crosswalk (which at that point was the rectangular area of the midway), we hold that plaintiff is in no position to complain of the testimony subsequently admitted describing the extent of the refuge area and the purpose of the “V.” We regard this as legitimate cross-examination in a field already explored by plaintiff. In this situation the subsection of the ordinance could add nothing to the evidence already in, nor would it have detracted from that evidence by way of contradiction or explanation. The answers objected to were no more conclusions than other portions of the testimony brought out or permitted by the plaintiff. And these, if conclusions, were conclusions of an expert. There was no error in the rulings on Boxdorfer’s testimony.

There is an additional reason why the ruling on Subsection 18 of the ordinance as well as the rulings on the testimony of Boxdorfer were not prejudicial. The essential question which the jury decided was whether or not plaintiff suddenly turned and stepped out into traffic which was proceeding with a green or “go” signal, and whether this constituted negligence. If plaintiff did this (and the jury evidently found that he did) it would make no essential difference under all the evidence, whether he stepped from that part of the “V-Box” within the crosswalk, or whether he stepped from the “V” or point. The court had correctly instructed the jury that in either such event the plaintiff would have been negligent. No witness but plaintiff himself testified that he was in any part of the “V-Box” or midway when he was struck or collided with the car, and plaintiff definitely testified that he was then within the crosswalk lines. The whole question of the “V” area and the precise extent of the pedestrian refuge was more or less of a “red herring.” There was no prejudicial error in any of these rulings.

The last point made concerns the cross-examination of plaintiff from a deposition taken in a suit for personal injuries previously filed by him against a third person. In the present suit he admitted three prior injuries, — one in 1946 for which a Workmen’s Compensation claim was filed, one in 1951 while working for the City of St. Louis, and one in 1958 when he fell down some stairs. All of these involved his back. He also claimed a back injury in the present suit, but the court ultimately excluded that part of the claim as not established by substantial evidence. In the cross-examination of plaintiff in the present trial, counsel for defendant produced his deposition taken in a suit for the 1958 fall; plaintiff stated that he recalled the deposition being taken but that he had never read it. He was asked if he recalled certain questions and answers, as read, concerning the injury for which that suit was filed and he stated that he did. Counsel for defendant was then permitted, over the objection of immateriality, to ask plaintiff whether he recalled being then questioned concerning his prior injuries; he replied that he did, recalled that he told of his 1951 injury, but also recalled that he did not tell of the “1946 accident.” He stated that the reason for the latter was that “he forgot,” although he now remembered it. This evidence was offered by defendant on the theory that it affected plaintiff’s credibility. We find that no objection was made to the specific method used in this part of the interrogation, although counsel now refer to the procedure as improper; nor was any objection made on the ground that the deposition had not been signed. In the present case plaintiff told of the 1946 injury on direct examination, as well as on cross-examination.

The point now made is that this prior testimony did not involve a matter material to the issues of the present case; plaintiff cites authorities to the effect that evidence of prior statements against interest must concern material facts. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Kaley v. Huntley, Mo.App., 88 S.W.2d 200; Westinghouse Electric Supply Co. v. Binger, Mo.App., 230 S.W.2d 166; Bush v. Kansas City Public Service Co., 350 Mo. 876, 169 S.W.2d 331. The situation here does not really involve the materiality or immateriality of the truth of a fact as, for instance (Bush, supra), how many times plaintiff had or had not been married. The evidence introduced went merely to the accuracy, the memory, and the credibility of plaintiff as a witness. A very considerable latitude is permitted in cross-examination, particularly of a party, although this is subject largely to the discretion of the trial court. Anderson v. Woodward Implement Co., Mo., 256 S.W.2d 819; State v. Hartwell, Mo., 293 S.W.2d 313; Gildehaus v. Jones, 356 Mo. 8, 200 S.W.2d 523; State v. Thompson, Mo., 280 S.W.2d 838; Maul v. Filimon, Mo.App., 315 S.W.2d 859. The prior testimony received here was not entirely “unrelated” (as plain-tiff suggests) to the issues of the present case, since it concerned the matter of previous injuries and plaintiff’s stated recollections thereof; and it immediately followed a recital of his prior, detailed testimony of the 1958 injury, most of which came in without objection. The admission of this evidence was certainly permissible in the discretion of the trial court.

Subsequently, plaintiff’s counsel offered portions of plaintiff’s deposition in the present case to prove that he had told therein of the 1946 injury. This occurred after the court had sustained an objection to a question seeking to elicit that information. These questions and answers were offered as rehabilitation of the witness, counsel explaining that they would show that plaintiff had not concealed the 1946 injury until the trial of the present case. The offer was excluded. Counsel argue that a party always has the right to read portions of a deposition to explain those parts which the opposing party has read, citing Binion v. Armentrout, Mo., 333 S.W.2d 87, 92. That question is immaterial here. The principle involves reading from the same deposition, and plaintiff clearly had the right to read any and all explanatory portions of the prior deposition, if there were any. The further argument is made that the evidence from the later deposition was admissible as rehabilitation, citing McElhattan v. St. Louis Public Service Co., Mo., 309 S.W.2d 591. We need not discuss here in detail the principles of a permissible rehabilitation. There is no occasion for the rehabilitation of a witness when he has simply admitted that on a prior occasion he forgot to tell about something. No amount of additional evidence could remove or obliterate the fact that the witness had then failed to tell of the 1946 injury. The fact that he remembered and told of it in a later deposition would not have that effect, nor would it even be relevant. See, generally, Williams v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 659, 665. The principle of rehabilitation involves evidence of the truth or falsity of an issuable fact; where a witness has been impeached by proof of a prior statement inconsistent with his present testimony, rehabilitation is permitted by proof of consistent statements made prior to those constituting the impeaching testimony. State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667; State v. Emrich, Mo., 252 S.W.2d 310; State v. Emrich, Mo., 250 S.W.2d 718; Lach v. Buckner, 229 Mo.App. 1066, 86 S.W.2d 954; Huston v. Hanson, Mo., 353 S.W.2d 577. And even if the principle of rehabilitation were applicable here, statements made in a subsequent deposition could not supply the factor needed. Berberich, supra, and other cases just cited. The offer was properly refused.

We find no reversible error and the judgment is affirmed.

All of the Judges concur.