author: BLAIR, Judge.

text:
    Virgil A. BITTIKER, D.O., Respondent, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Appellant.
    No. 24459.
    Kansas City Court of Appeals. Missouri.
    June 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., St. Louis, for appellant.
    Reed Gentry, Rogers, Field & Gentry, Kansas City, William B. Waters, Hale, Coleberd, Kincaid & Waters, Conn Withers, Liberty, for respondent.
   BLAIR, Judge.

Virgil A. Bittiker, an osteopathic physician, was charged by the State Board of Registration for the Healing Arts with “soliciting patronage”, in violation of Sec. 334.100, subsec. 1(9) V.A.M.S., “through the Excelsior Medical Clinic, Incorporated”, by means of advertisements “placed by said corporation” in national magazines and, after hearings, he was declared guilty of all charges and his license to practice the healing arts was revoked. He filed his petition for review in the Circuit Court of Clay County (Chapter 536, V.A.M.S.) which “reversed, set aside and held for naught” the findings and order of the board. The board appeals. We have jurisdiction. Gaddy v. State Board of Registration for Healing Arts, Mo., 394 S.W.2d 284.

Sec. 334.100, subsec. 3, provides that a physician “whose license is revoked or suspended by the board shall have the right to have the proceedings reviewed as provided by law for the review of decisions, rules and regulations of administrative officers and bodies existing under the constitution and laws of this state.” The review required here is that ordered by Art. V, Sec. 22, Const. of 1945, V.A.M.S., as implemented by Sec. 536.140 V.A.M.S. Gaddy v. State Board of Registration for Healing Arts, Mo.App., 397 S.W.2d 347; State ex rel. St. Louis Public Service Co. v. Public Service Commission, 365 Mo. 1032, 291 S.W.2d 95. The circuit court had, in the first instance, as this court has, in this instance, the duty to determine, on the entire record, whether the board reasonably could have made the findings and issued the order we now review. Yet neither the circuit court nor this one has any authority to substitute its own judgment for the judgment of the board, if the board’s findings and order are supported by substantial evidence, unless the action of the board is clearly contrary to the overwhelming weight of the evidence viewed in its entirety, together with all legitimate inferences which flow reasonably from that evidence in the light most favorable to the action of the board. Rush v. Swift & Co., Mo.App., 268 S.W.2d 589; Widens v. Personnel Board of Kansas City, Mo.App., 277 S.W.2d 665; Carroll Const. Co. v. Kansas City, Mo.App., 278 S.W.2d 817; Brown v. Anthony Mfg. Co., Mo., 311 S.W.2d 23.

The old doctrine that statutes regulating and disciplining physicians must be construed strictly against the board and liberally in favor of the physician under investigation has long since been repudiated. The “(P)owers conferred on boards of health”, said the Supreme Court in 1928, “to enable them effectually to perform their important functions in safeguarding the public health should receive a liberal construction. * * * While boards of this character cannot act arbitrarily, or without substantial evidence (State ex rel. v. Ad-cock, 206 Mo. 550, loe. cit. 558, 105 S.W 270, 121 Am.St.Rep. 681), yet, when any act, requiring the exercise of judgment and the employment of discretion, is within the scope of the exercise of a reasonable discretion, it will not be interfered with.” State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635, 638. These statements were approved in State ex rel, Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, 950, with the observation that examining the “object of our Medical Practice Act as a whole, we find it to be an exercise of inherent police power of the state in the protection of its people attempting to secure to the people the services of competent practitioners learned and skilled in the science of medicine, of good moral character and honorable and reputable in professional conduct.” Earlier decisions prescribing strict construction were disapproved and liberal construction was declared to be the rule. In Hughes v. State Board of Health, in 1942, 348 Mo. 1236, 1240, 159 S.W.2d 277, 279, the court noticed that, long prior to the decisions upholding strict construction, it had held that “the medical practice act was enacted in the interest of society, State v. Hathaway, 115 Mo. 36, 21 S.W. 1081,” and declared that the primary purpose of a proceeding to revoke a physician’s license is to safeguard the public health, not to punish the physician. Again the court declared that the old doctrine of strict construction was dead.

Statutes authorizing the board to regulate and discipline physicians are remedial statutes enacted in the interest of the public health and welfare and must be construed with a view to the suppression of the wrongs and the mischiefs undertaken to be remedied. State ex rel, Lentine v. State Board of Health, supra, 65 S.W.2d 1. c. 950; 26 Mo.Digest., Stat.,

Nontechnical words and phrases must be given their “plain or ordinary and usual sense.” Sec. 1.090 V.A.M.S. Gaddy v. State Board of Registration of Healing Arts, Mo.App., 397 S.W.2d 347.

Sec. 334.100, subsec. 1(9), authorizes the board to revoke the license of any physician for: “Soliciting patronage in person or by agents or representatives, or by any other means or manner, under his own name or under the name of another person or concern, actual or pretended.” Even strictly construed, as it must not be, it is difficult to imagine a prohibition more all-inclusive and pervasive than this one. What the General Assembly obviously sought to prevent was “soliciting” patronage, that is, patients, by physicians, by any means or in any manner, overt or covert, directly or indirectly, through his own personal contacts and efforts or by standing behind any other “person or concern”, “actual or pretended”, doing it for his benefit and with his approval and cooperation while he serves as the willing beneficiary. A sweeping prohibition was written by the General Assembly, one excluding all possible escape hatches the unethical physician might endeavor to employ.

The word “soliciting” is not a word of technical meaning as it is employed in this statute, although it is urged on us that we should view it in that light. This we decline to do. Legal and standard dictionaries and court decisions from various jurisdictions are cited to us. One cited definition of the meaning of “solicit”, fairly illustrative of others cited, is to “make petition to; to entreat; importune, as to solicit the king for relief; now often to approach with request or plea, as in selling, begging, etc.” Certainly the archaic first part of this definition does not portray the “plain or ordinary and usual sense” of the word “soliciting” in these modern days. Sec. 1.090 V.A.M.S. The latter part of the definition more nearly does. We have no hesitancy in declaring that all professional persons, legislators and men in the street would regard the word “soliciting”, in the context of this statute, as meaning to ask for or to request some thing or action in language which convinces that the asking or requesting is being done in earnest and that the solicitor wants results. Webster’s International Dictionary gives, among other modern definitions, the meaning of the word “solicit” as: “To awake or excite action; to rouse a desire in; to summon; to appeal to; to invite; allure. To endeavor to obtain by asking or pleading. To urge the claims of; to advocate.” These common definitions express, in our view, the “plain or ordinary and usual sense” of the word “soliciting”, as employed in the statute, and answer negatively beyond all argument, that it is a word of technical meaning.

Counsel for the licensee argue that physicians are permitted to “advertise” by the terms of Sec. 334.047, subsec. (2) V.A.M.S. enacted simultaneously with Sec. 334.100, subsec. 1(9). Sec. 334.047, subsec. (2) declares : “A licensee under this chapter shall, in any letter, business card, advertisement, prescription blank, sign, or public listing or display of any nature whatsoever, designate the degree to which he is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputable by the American Medical Association or approved and accredited as reputable by the American Osteopathic Association.” (Emphasis supplied)

Counsel seem to take the view that the authority to advertise, condoned and limited by Sec. 334.047, subsec. (2), awards to physicians the right to advertise to accomplish almost any object they may desire. We reject this construction of the statute. The licensee’s conduct cannot be weighed on this scale. By Senate Bill SO, Laws of Mo., 1959, the General Assembly repealed Chapters 334 and 337 RSMo 1959, as they then stood, and enacted a new code on the subject we are considering and on other related subjects. The code appears in full as Chapter 334, V.A.M.S., 1965 Cumulative Annual Pocket Parts. The sections we are considering constitute a part of the entire code. All were enacted at the same time. All are therefore in pari materia and they must be read and construed together. Effect must be given to all provisions. Apparent conflicts must be harmonized whenever possible. Mitchem v. Perry, Mo.App., 390 S.W.2d 600, Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721, 725.

Surely the General Assembly did not mean to denounce “soliciting”, by the all-inclusive and pervasive language of great strength and sweep it employed, and then, by means of Sec. 334.047, subsec. (2), authorizing circumspect and limited advertising, to annul its denunciation of “soliciting” by allowing it to be done without hindrance as advertising. For us to adopt this construction would be to convict the General Assembly of intending the absurd, something we must avoid if we can do it by any other reasonable construction. 26 Mo. Digest, Stat.,

This we do without any dubiety, logical or legal. For while it is true that all advertising is not necessarily “the soliciting” proscribed by Sec. 334.100, subsec. 1(9), it is necessarily just as true that the proscribed “soliciting” can easily take the form of advertising. It is idle to engage in semantics that cannot absolve a solicitant. Of course, the clinic’s program was one of advertising, as the licensee says, and of course, as it will appear, its advertising was also a program for the solicitation of prospective patients.

We need not concern ourselves in this case with locating the precise line of demarcation between the circumspect and limited advertising permitted by Sec. 334.-047, subsec. (2) and the “soliciting” proscribed by Sec. 334.100, subsec. 1(9), for the soliciting here, as we will develop, was so egregious and gross, and so far on the wrong side of any defensible line of demarcation between the permissible advertising and forbidden soliciting, that we will leave to closer cases the placement of the exact line a physician cannot overstep. Moreover, the argument that any solicitation must be a “personal petition and importunity addressed to a particular individual” is so completely and forcefully answered by the very language of Sec. 334.100, subsec. 1(9) itself that we withhold answering it further than to say that the General Assembly, as was its right, has declared an altogether different definition and policy than the one we are asked to adopt.

We have examined all of the decisions cited by the licensee and we see none that supports any of his theories in the face of our strong statutes. Ketring v. Sturges, Mo., 372 S.W.2d 104; State ex rel. Ball v. State Board of Health et al., 325 Mo. 41, 26 S.W.2d 773; State ex rel. Horton v. Clark et al., 320 Mo. 1190, 9 S.W.2d 635; State ex inf, Sager v. Lewin et al., 128 Mo. App. 149, 106 S.W. 581; Sapero v. State Board of Medical Examiners, 90 Colo. 568, 11 P.2d 555; Carter v. State, 81 Ark. 37, 98 S.W. 704; Golden & Co. v. Justice’s Court of Woodland Tp., Yolo County, 23 Cal.App. 778, 140 P. 49; In re Owen, 207 N.C. 445, 177 S.E. 403; Rust v. Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80; State v. Cusick, 248 Iowa 1168, 84 N.W.2d 554. An analysis to demonstrate their inapplicability would uselessly prolong this opinion to no real purpose.

Substantial evidence in the record before the board, the circuit court and this court follows. M. C. Salmon testified: The Excelsior Medical Clinic, a corporation, practices medicine in Excelsior Springs, Missouri. It specializes in the treatment of “prostate gland, rectal and hernia conditions.” He is its president. At all relevant times the licensee was its vice-president, one of its stockholders, a member of its four member board of directors, one of its 5-7 physicians examining and treating its patients, “its highest paid physician on the staff”, and its chief of staff exercising supervisory control over all other physicians, and all examinations and treatments.

For years the clinic has been advertising in national magazines the efficacy of the non-surgical treatment it claims to be able to render to those suffering from prostate gland, rectal and hernia conditions. Through an advertising agency it procures placement of its advertising, after weekly advance conferences with the agency, in various magazines, Popular Mechanics, Farm and Ranch, Stag, Saga and Male Magazine. At all relevant times it advertised in these magazines, Farm and Ranch and Popular Mechanics Magazines in the October, 1963 issues, Stag Magazine in the December, 1963 issue and Saga and Male Magazines in the January, 1964 issues. Summarization cannot convey the full import of these advertisements but the reproduction of one appearing in Popular Mechanics Magazine, October, 1963 issue, ought to portray adequately the purpose of the advertising done by the clinic by means of the advertisements mentioned in the charges:

M. C. Salmon was in charge of “the business end of the operation” of the clinic, including its advertising and correspondence. When a reader of one of the magazine advertisements responded by writing for information about the treatment afforded by the clinic, he was sent “a brochure and a letter of transmittal explaining what it is” together with a questionnaire. Salmon received these answered questionnaires when they arrived at the clinic. He might “consult on a questionable case with any member of the staff”, including the licensee, concerning responses to be made to the answered questionnaire. Then he wrote letters to the prospective, patients, “200 possibly every week”, reminding them of their need for early non-surgical treatment if they were to avoid the need for future surgical treatment and offering to send them a list of former patients whom they could contact for information about the efficacy of the treatment. When patients arrived at Excelsior Springs, he made arrangements for their transportation to hotels and for their hotel accommodations. Then the staff took over and examined and treated the patients according to the practices of the clinic under the supervision of licensee as chief of staff.

Viewing this background, we examine the conduct of the licensee. The charges against him were five in number. By his own testimony he condemns himself. Called by the board as an adverse witness by authority of Sec. 536.070, subsec. (3), V.A. M.S., (he did not volunteer to testify), he answered under oath: During the period September 1,1963 through January, 1964, he was vice-president and a member of the board of directors of the corporation which was the clinic. Its “principal business” was the practice of medicine. He was also chief of staff. His duties were “supervision of examination and treatment of patients”. He stood in “a supervisory position over other physicians there”. He had served in that capacity continuously since 1958. During 1963 the clinic treated “approximately two thousand” patients. For his services he received a monthly salary from the clinic. He also received dividends on his stock which were voted by the board of directors, of which he was one of four members. His only office was at the clinic and the practice of his profession was “devoted exclusively to practicing as chief of staff” of the clinic. He had no private patients, only the clinic’s patients. He did not examine or treat every patient of the clinic, but he examined as many as he could and prescribed for them. “Obviously, when there is a great number, I have to have assistance.” The number of the clinic’s patients varied from seventy-five to one hundred fifty. He had nothing to do with the correspondence with prospective patients or with the clinic’s advertising program. This business of the clinic was all managed by Salmon.

Shown the advertisement placed by the clinic in Stag Magazine, December issue 1963, which was similar in essential respects to the one set forth above and the others mentioned in the charges, he was asked if he had seen ads like that before. He answered, “Yes, I have.” “Q. You are aware of the fact that those ads are placed by' the clinic are you not? A. Yes, sir. Q. And I presume you were so aware during the period in question, September (1963) through January (1964) ? A. Yes, sir.” An offer was made to let him examine all the advertisements embraced in the charges against him. The record does not show whether he availed himself of this offer or brushed it aside as needless, but his testimony in this regard was as follows: “Q. But these ads which were marked in evidence at the last hearing — you are certainly free to examine all of them — don’t come as a surprise, do they, sir ? A. Oh, no, I have known that the clinic advertises. It is public knowledge. Q. Was that the situation in 1958 when you — A. Always, always. Q. Always ? A. Always. Q. And it still is the situation now? A. Still.”

Despite all of this evidence, and particularly the admissions of the licensee, it is argued that he was not guilty of soliciting because “all of the evidence conclusively proved that Dr. Bittiker did not procure the Clinic advertising by any direct or indirect means and, therefore, the charges were disproved by the evidence.” (Emphasis supplied.) There is no claim that he personally procured the placement of the advertisements. He was charged with soliciting patients by means of advertisements placed by the clinic in national magazines. This he could do either “in person or by agents or representatives, or by any other means or manner, under his own name or under the name of another person or concern, actual or pretended”. Sec. 334.100, subsec. 1(9). Did he do this? The advertisements were palpable solicitations designed to attract patients to the clinic for examination and treatment by the licensee and his staff. By his own admission he knew that the advertising was being done and that the advertising program of the clinic was “public knowledge”. He knew that the advertising had been going on since he became chief of staff in 1958 and “always, always”, and that it was “still” going on. From every point of view, and in the logic of this whole atmosphere, how can we say, without blinding our eyes to the obvious, that the licensee did not consciously engage in the clinic’s general scheme to solicit patients for him to examine and treat? With his knowledgeable cooperation, the clinic’s whole operation was made complete. He chose to be the physician completing that operation. He accepted the patients when they arrived and examined and treated them for the clinic. He knew the source of those patients and he connived at it for personal gain and aided and abetted in the consummation of the whole operation. He wants us to hold, as he repeats he earnestly believes, that he merely examined and treated the clinic’s patients, meanwhile standing professionally aloof and innocent of the clinic’s program of solicitation. No doubt he beguiled himself into the belief that this was true and that it absolved him from complicity. This will not do. He could not lurk behind the corporate shield and profess a naivete beneath the intelligence of everyone of average intelligence. Nor is this court required to profess an ignorance of things which obtrude themselves on the ready understanding of all men. He could not consciously become a participant in the general scheme and accomplish indirectly through the clinic what he could not do directly by himself and then successfully declare himself exempt from complicity. The very terms of Sec. 344.100, subsec. 1 (9) plainly forbade his conduct. This is true under any construction of this statute, liberal or strict. Although the decisions we now cite are not precisely in point on the facts, they approach this case nearly enough and they announce the philosophy we have announced as the one governing this casé. See: State Dentists v. Gifford, 168 Va. 508, 191 S.E. 787, 788; Lasdon v. Hallihan, 377 Ill. 187, 36 N.E.2d 227, 231; Basford v. Department of Registration and Education, 390 Ill. 601, 62 N.E.2d 462, 465; Application of Sternfels, 20 A.D.2d 840, 248 N.Y.S.2d 173, 175.

For his conduct the licensee must take the consequences. By his'conduct in consciously becoming a participant in the general scheme of the clinic and in aiding and abetting it in its program of soliciting patients for him to examine and treat, he has betrayed his trust as a physician and for this reason he is no longer a physician. He has left us with no alternative but to hold that the findings and order of the State Board of Registration for the Healing Arts are supported by substantial evidence and are entirely consistent with the clear weight of the evidence. We so hold.

The judgment of the circuit court was plainly erroneous. It is reversed and this cause is remanded with our direction to reinstate the board’s findings and order.

HOWARD, J., and COOK, Special Judge” concur.

CROSS, P. J., not participating.

      . “1. That you did, by and through the Excelsior Medical Clinic, Incorporated, solicit patronage by means of an advertisement placed by said corporation in the October 1963 issue of Farm and Ranch magazine. 2. That you did, by and through the Excelsior Medical Clinic, Incorporated, solicit patronage by means of two advertisements placed by said corporation in the October 1963 issue of Popular Mechanics magazine. 3. That you did, by and through the Excelsior Medical Clinic, Incorporated, solicit patronage by means of an advertisement placed by said corporation in the December 1963 issue of Stag magazine. 4. That you did, by and through the Excelsior Medical Clinic, Incorporated, solicit patronage by means of an advertisement placed by said corporation in the January 1964 issue of Saga magazine. 5. That you did, by and through the Excelsior Medical Clinic, Incorporated, solicit patronage by means of an advertisement placed by said corporation in the January 1964 issue of Male magazine.”


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Ruby D. NOLTING, Plaintiff-Appellant, v. Isabel PETERSEN and Eugene J. Petersen, Defendants-Respondents.
    No. 32310.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.

      Morris A. Shenker, Frank B. Green, Jr., St. Louis, for plaintiff-appellant.
    Morris, Wuestling & James, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

Plaintiff brought this action to recover damages resulting from a fall down a common stairway in defendants’ office building. Jury trial resulted in a verdict for plaintiff in the amount of $7,500.00. The trial court sustained the defendants’ motion for new trial specifying the two grounds upon which it based its ruling. We have herein determined that the first of these assigned reasons properly supports the trial court’s action and thus we need not rule upon the other. Accordingly, we will set out in this opinion only the facts that bear upon the contention defendants were prejudiced by an improper comment made by the trial court while ruling upon an objection.

It is first necessary that we digress from the merits of this cause to consider the defendants’ motion to dismiss this appeal. This motion is based upon the contention the plaintiff’s brief violates Civil Rule 83.05, subparagraphs (a) and (c), V.A.M.R., in that' the statement of facts contained therein is neither fair nor concise nor without argument, contains voluminous irrelevant material, and that verbatim tes-, timony has been substituted for “ * * * a statement of the facts relevant to the questions presented for determination. * * * ” We will deal with these matters in reverse order.

The plaintiff’s brief contains several lengthy verbatim excerpts from the transcript primarily dealing with evidence bearing upon the contention one of the jurors intentionally misrepresented facts regarding his prior involvement in litigation. That issue really turned upon whether plaintiff’s counsel so framed his questions to the juror that the juror could not, as he later claimed he did, have misunderstood. We do not reach this point under our disposition of this appeal but had it proved necessary to do so, the matters set out verbatim from the transcript would have been most enlightening and, in fact, really determinative of the matter. In any event, there was no substitution here involved as the verbatim excerpts were additional material to the statement of facts which set out, in summarized form, essentially what happened. In view of the nature of this issue, we cannot hold that verbatim excerpts of this nature so violate the rule as to require dismissal of this appeal.

The other allegations of the motion can best be considered together. The statement of facts found in plaintiff’s brief does go at length into matters not before this court on this appeal. For example, it contains a summary of the evidence relating to the extent of plaintiff’s injuries and her expenses for treatment. In view of the issues raised upon this appeal that evidence is irrelevant. It is also true there is some argument interspersed in the statement of facts as where the statement of facts contains the argument, together with case citations, made by plaintiff’s counsel on the issue of juror voir dire misrepresentation. However, we have determined that the violations of the rule, while serious and easily avoidable, are not so extensive as to cause us to sustain the defendants’ motion to dismiss this appeal. That motion is denied.

The facts bearing upon the determinative issue of this appeal need to be stated somewhat broadly so that a proper perspective may be obtained. The chain of events pertinent to the issue herein decided began with the voir dire examination when plaintiff’s counsel asked the members of the panel (a proper foundation presumably having been laid although the transcript does not disclose it), “Do any of you or any members of your immediate family— someone living in your household — work for or have any financial interest in the Globe Indemnity Company?”

We pass next to several pertinent matters occurring during trial. The plaintiff’s version of this action was that her left shoe caught underneath some raised metal stripping on the top step of the common stairway and she fell head first down the stairway. There was other evidence offered on behalf of plaintiff as to the metal stripping being raised, weak, loose and flexible. To rebut this evidence the defendants offered the testimony of William P. Carleton, Jr., a general insurance agent who occupied offices on the same floor of defendants’ building as did the plaintiff’s employer. He testified that he was in and out of his office four or five times a day for five days a week; that he would walk on the top step in reaching his office; that it was not weak and neither did it rock nor was it flexible but was in excellent condition; that certain of plaintiff’s photographs did not properly represent the steps as they appeared on the date plaintiff fell; that he had moved heavy furniture into his office and this was why he knew the condition of the steps was good; and that the metal stripping was not loose nor was it raised above normal.

Photographs were taken of this stairway and the top step by photographers employed by each of the parties. The trial court permitted plaintiff’s counsel to cross-examine the photographer employed by the defendants as to who paid him for the three photographs he took and identified at the trial. As a result the name of the Royal-Globe Insurance Company (no issue is raised as to the change in name from the company named in the voir dire) appears in evidence some ten times within two pages of the transcript. The culmination of all this reference to an insurance company occurred when, over objection, the photographer was asked this question to which he gave the answer shown: “Q Do you know what the Royal-Globe Insurance Group’s interest was in having you make those photographs ? MR. MORRIS : If the Court please, I object to that as not being material or relevant and it is highly prejudicial. THE COURT: Overruled. A The Royal-Globe Insurance Group insured the Clayton Realty Company.”

Keeping that evidentiary background in mind we pass to the next link in the chain of events leading to the comments the trial court later found prejudicial. During his closing argument counsel for the defendants directed the jury’s attention to certain of plaintiff’s photographic exhibits and stated: “ * * * If you look at the photographs plaintiff took, the only photograph — look at these photographs and tell me whether or not that photograph of April 4, 1963, has been jimmied or somebody has stuck a wedge or burglary tool under there or a screw driver, raised it up and then taken the photograph. * * * ” Later in that argument counsel stated, “ * * * Somebody jimmied those photographs, there is no doubt about that in my mind. * * ” Still later in his argument defendants’ counsel stated: “Let’s consider the photographs again. I don’t see how who paid for somebody’s photographs can affect what it can reflect, what appears in the photographs. Maybe this is the kind of photographs Mr. Green and his office take. This is a civil, not a criminal case. The photographer is supposed to take what is there and not change it and then take a photograph. You know, once you mend metal and put it back it will show, and there are no defects in his photographs. Compare those photographs.”

During the reply portion of his closing argument counsel for plaintiff, obviously answering that portion of defendants’ argument set out above, said: “What this lady did is what happens to people who fall down. This, I submit to you — who here thinks, and I’ll look every one of you in the eye, I’ll look Mr. Morris in the eye, which of you thinks I would have something to do with jimmying pictures? You know it takes four years to go to law school. I’ve been doing this for about ten years and nobody has really ever accused me of jimmying up some pictures or some evidence. I think you can ask around — this is the first experience I’ve had in Judge Ferriss’s Court, and I must say I’ve had extremely fair treatment at his hands, and every courtesy, but a lot of lawyers know me, Jack Morris knows me well, and it is a disgrace for him to stand there before you and argue something he knows, in all honesty, isn’t true. Now, it hurts me to have this done, but it hurts everybody to have somebody come in and not tell the truth about them. 1 think it hurt Miss Nolting when this advocate for the insurance company, Mr. Carleton — * * (Emphasis supplied.) Defendants’ counsel objected at that point and the court made the following ruling: ‘Til sustain the objection to the characterization of Mr. Carleton as being an advocate for the insurance company. He’s an insurance agent, but it has nothing to do with the other insurance company; at least there is no evidence of it.” (Emphasis supplied.)

After the jury left the courtroom to deliberate, Mr. Morris moved that a mistrial be declared stating: * * * I feel the jury was further prejudiced by the Court’s further remarks — by the remarks that Mr. Carleton apparently hasn’t anything to do with the other insurance company, or it has not been shown. I feel that the jury, hearing the Court’s remarks, will, no doubt, put a great deal of weight to them. I am sure it was inadvertently done by the Court, but I feel my client was prejudiced * * The trial court overruled the motion for mistrial.

In granting the defendants’ motion for new trial the trial court specified that it did so on the grounds set out in certain paragraphs of the defendants’ motion. In that part of those paragraphs pertinent to the issue herein ruled the defendants alleged the trial court “ * * * committed prejudicial error in commenting to the jury during the closing argument of plaintiff’s counsel * * * ” that the witness Carleton, while an insurance agent, had * * * nothing to do with the other insurance company or at least there was no evidence of it * * It should immediately be pointed out that although the defendants were granted the only relief they asked for when the trial court sustained their objection and although the motion for mistrial was not made until later, there is no issue herein raised by the plaintiff as to the timeliness of the defendants’ motion for mistrial.

The defendants’ contention in their motion for new trial and in their brief before this court is twofold. They urge that the court’s comment improperly and unnecessarily injected the issue of insurance coverage into the case and that the comment had the effect of destroying the credibility of the witness Carleton. It is our rule that whether a mistrial should be granted because of improper injection of insurance into a case is a matter for the proper exercise of a sound discretion by the trial court and only in the event of a manifest abuse of judicial discretion should the appellate court interfere. Gray v. Williams, Mo.App., 289 S.W.2d 463. We have earlier in this opinion set out the occurrences during the trial of this cause which indicate that the issue of insurance coverage was brought out repeatedly and most clearly many times prior to the occasion of the trial court’s comment. However, it may well be that the trial court thought its remark constituted the proverbial straw.

However, we do not place our ruling upon that basis for regardless of the question of the injection of insurance coverage we hold the trial court properly ruled in granting the defendants a new trial. This for the reason that, as stated in Duncan v. Pinkston, Mo., 340 S.W.2d 753, 1. c. 757, it is improper for a trial judge to indicate any opinion on an issue of fact or on the merits of the case or the credibility of the witnesses or the weight and sufficiency of the evidence or other similar matters. We might regard the comment made by the trial court as mild and as not sufficient to destroy Carleton’s credibility. Yet we should not substitute our judgment on such a matter for that of the trial judge who was present in the courtroom and thus was in a better position to judge the effect of his remark when placed in the context of the whole trial.

It is fundamental to our system of appellate review that we are more liberal in upholding an order granting a new trial than in reversing and remanding a cause and this is especially true in those instances where the order granting the new trial involves the exercise of judicial discretion on the part of the trial court. Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599, 1. c. 604 and cases there cited. It is also our rule that where the trial court grants a new trial on grounds which indicate the trial judge was of the opinion there was prejudice, the reviewing court will defer to that ruling. Woodworth v. Kansas City Public Service Co., Mo., 274 S.W.2d 264, 1. c. 270, 271; Sho-Me Power Corp. v. Farm, 365 Mo. 1042, 292 S.W.2d 91, 1. c. 95.

The judgment should be affirmed.

PER CURIAM:

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

ANDERSON, Acting P. J., RUDDY, J., and LACKLAND H. BLOOM, Special Judge, concur.

WOLFE, J., not participating.


author: WOLFE, Presiding Judge.

text:
    Leona PARTY, Charles R. Party, and Betty Lindsey, Plaintiffs-Respondents, v. Albert L. GAGNE, Defendant-Appellant.
    Nos. 32164, 32165.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.

      Ray B. Marglous, Sawyer, Marglous, Clayton, for defendant-appellant.
    B. Richards Creech, George W. O’Lary, St. Charles, for plaintiffs-respondents.
   WOLFE, Presiding Judge.

This is an appeal from an order denying a motion to set aside three judgments against the defendant-appellant.

On October 16, 1961, Mrs. Betty Lindsey was driving her automobile southwardly along North River Road in St. Charles County. The defendant was driving a truck northwardly along the same road. The car and the truck collided on a hill where the road crosses some railroad tracks. There was a passenger named Leona Party in Mrs. Lindsey’s car. Mrs. Lindsey brought suit for personal injuries and for damages to her automobile. Mrs. Party brought suit for personal injuries in which her husband, Charles R. Party, joined seeking damages for the loss of his wife’s services and companionship by reason of the injuries she sustained. Answers were filed on behalf of the defendant and all cases were at issue by June 15, 1962. On June 1, 1964, the cases were consolidated for trial, and on September 9, 1964, the consolidated cases were called for trial and the defendant failed to appear.

The evidence disclosed that while Mrs. Lindsey was driving her car southbound over the railroad tracks crossing River Road her car was struck by the truck driven by the defendant. There was evidence that he was on the wrong side of the road traveling at a speed of forty-five miles per hour and that Mrs. Lindsey’s car was knocked into the railroad embankment. She suffered a whiplash injury and had been troubled for three years after the accident with headaches. The damage to her car amounted to $144.52.

Mrs. Party suffered back and hip injuries and was under treatment for that for some time. She stated that she had some difficulty moving her neck, and that her back still hurts. She is required to use liniment and a heat lamp. In the special damages sought both she and Mrs. Lindsey told of their medical expenses. Mr. Party stated that he was required to pay money for baby sitters and housekeepers to do work his wife ordinarily did and that she was unable to perform her household duties as she had done before the accident.

At the conclusion of the hearing the court entered judgment for Leona Party in the sum of $2,500.00 and a judgment for Charles R. Party in the sum of $500.00. A judgment was awarded to Betty Lindsey in the sum of $5,000.00 for personal injuries on Count 1 of her petition, and $144.52 on Count 2 of her petition.

On October 24, 1964, the defendant filed a motion to set aside the judgments previously entered in which he alleged, inter alia, that an attorney named John Gray who filed the answers for the defendant had represented the defendant for the Crown Insurance Company and that Gray had withdrawn from defense of the cases.

In support of his motion the defendant testified at the hearing thereon as follows: He had been insured by the Crown Insurance Company. The insurance company went bankrupt. Sometime in June, 1964 Mr. Gray, the attorney for the insurer, notified the defendant that he “wasn’t going to handle the case any more.” After that defendant called up another lawyer but he did not hire him because the lawyer wanted a fee of $300.00 to defend the actions. The defendant also stated that he did nothing further. He was not notified of the setting of the cases and did not know of the judgment of September 9, 1964 until an execution was run on it. All that he said in relation to his alleged meritorious defense was that he thought the driver of the other car was at fault “because she hit me in the side.” He also testified that this was his “first experience in court.”

Upon the foregoing evidence the trial court overruled the motion to set aside the default judgments. The defendant’s one point on this appeal is “The Court erred in overruling defendant’s motion to set aside the default judgment for the reason that the motion disclosed (1) a meritorious defense, (2) a reasonable diligence for failure to defend and (3) no substantial injury to plaintiff in a trial on the merits.” In support of this contention we are cited to the following cases: Whitledge v. Anderson Air Activities, Mo., 276 S.W.2d 114; Amos'James Grocery Co. v. Prichard, Mo.App., 297 S.W. 721; Hall v. McConey, 152 Mo.App. 1, 132 S.W. 618; and Reuck v. Strickland, 222 Mo.App. 1171, 12 S.W.2d 764. All of the foregoing cases differ materially from the facts before us and no useful purpose would be served by further distinguishing them.

In the case of Whitledge v. Anderson Air Activities, supra, 276 S.W.2d 114, the Missouri Supreme Court stated, 1. c. 116: “ * ⅜ * It has been generally held that, in order to justify a trial court in setting aside a default judgment, a defendant must have shown that he has a meritorious defense, and that he has good reason or excuse for the default; and, when a trial court has overruled a motion to set aside a default judgment and the trial court’s action is reviewed, the trial court’s action will not be disturbed unless the elements of reasonable excuse and meritorious defense are so clearly apparent that it is manifest the refusal to set aside was arbitrary. The possible injustice to plaintiff because of delay is to be also considered. * * * ” See also Dodge v. Safe-Guard Sales, Inc., Mo.App., 356 S.W.2d 101; J, G. Jackson Associates, Inc. v. Mosley, Mo.App., 308 S.W.2d 774.

From the facts we have set out above it appears that the defendant knew he needed an attorney and knew that he had none and permitted this situation to exist for three months before the case was called for trial. The court in its exercise of its discretion could under those facts find that there was no valid excuse for the defendant’s default. As to the alleged meritorious defense all that the defendant offered was that it was the “fault” of the plaintiff driver and that she hit his car in the side. This certainly was scant evidence, if any, of meritorious defense to the accusation that he was traveling at an excessive rate of speed on the wrong side of the road. We find therefore that the court did not abuse its discretion in overruling the defendant’s motion to set aside the default judgments and the judgment overruling the motion is affirmed.

ANDERSON and RUDDY, JJ., concur.


text:
    Jack POLEN, Respondent, v. KANSAS CITY CHIP STEAK COMPANY, Appellant.
    No. 24419.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 1966.
    Application to Transfer Denied Sept. 12, 1966.

      David Skeer, Judith Whittaker, Sheff-rey, Ryder & Skeer, Kansas City, for appellant.

      John M. Mahota, Gage, Hodges, Park & Kreamer, Kansas City, for respondent.
   BLAIR, Judge.

This is an action by Jack Polen, a former employee of Kansas City Chip Steak Company, against that company for $2,500.00 which he claims represents a bonus the company orally contracted to pay him at the end of the first year of his employment. The theory of his petition was that the contract was for payment of the bonus to him at the end of that time without any conditions or restrictions governing the obligation of the company to pay. To put it otherwise, if the company retained him in its employ for a year, he was to be paid the bonus regardless of his general performance as an employee or its quality or anything else. The theory of the company’s answer was that it contracted to pay Polen a bonus of $2,500.00 at the end of his first year’s employment only if he developed new and marketable products for it and to its satisfaction during that time. It claimed Polen failed to develop any new and marketable products at all during that time and therefore it was under no obligation to pay him any bonus at all under the terms of the contract. Polen did not claim he developed any such products and he flatly denied that the contract for the bonus obliged him to do so. The cause was tried before a jury and the verdict was for Polen for $1,850.00, $650.00 less than he claimed. The company appeals.

The contract was an express one and the only question raised by the pleadings was whether the company owed Polen the $2,500.00 bonus on his theory or owed him nothing at all. 27 Mo.Digest, Trial, Sufficient it is to say here that substantial evidence directed to this question was presented by both parties to sustain their respective theories of the contract. Evidence in particular will be discussed as it becomes material. The company presents two points on this appeal: (1) “The Court erred in entering judgment in accordance with the jury verdict of $1,-850.00 because the verdict was contrary to and unsupported by the evidence in the case and unresponsive to the issues presented by the pleadings and evidence, for under the said pleadings and evidence the jury could only find either that the plaintiff was entitled to recover $2,500.00, or that he was entitled to recover nothing,” and (2) “the Court erred in giving Instruction No. 4: ‘If you find 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,’ because the instant suit was not one for damages resulting from breach of contract, but a suit for a sum allegedly due under a contract, and the proper measure of damages was the contract price.” The two points presented are in reality only one, for if Instruction No. 4 was erroneous and prejudicial, in the circumstances of this case, then the Court should have refused to enter judgment for Polen on the verdict and granted the company a new trial.

The company cites decisions declaring the familiar rule that where a plaintiff sues on an express contract for the payment of a fixed amount of money, and the existence of the contract is denied by the defendant, the plaintiff must recover by convincing the triers of fact that he is entitled to recover on the exact terms of the contract and in the exact amount for which it calls or he can recover nothing at all. This is true because the only issue is that of contract or no contract. If the contract is established,- the plaintiff is entitled to the entire amount for which it calls. If the contract is not established, he is entitled to nothing. There is no room in a case with the issue so narrowly drawn for compromise on a finding in any other amount. If the jury fails to confine itself to the only issue and undertakes, in such a case, to arbitrate and adjust what it deems to be the equities between the parties, or to do “rough justice”, as some decisions say, and returns a verdict for the plaintiff for an amount less than that fixed by the contract, both the plaintiff and the defendant have been prejudiced by its failure to confine itself to the only issue in the case and by trying some issue foreign to the case. Even though the plaintiff is willing to accept the verdict for a less amount, the defendant is entitled to have it set aside as not responsive to the issue tried by the parties and as one based on something foreign to the only issue presented. Of course, these decisions all presuppose that the only issue tried is that of contract or no contract and that there is nothing else validly in the case warranting departure from the rule they announce. We acknowledge the force of these decisions and the correctness of the rule they declare. Cole v. Armour, 154 Mo. 333, 55 S.W. 476; Martin v. Barnett, Mo.App., 208 S.W. 278; Weisels-Gerhardt Real Estate Co. v. Pemberton Inv. Co., 150 Mo.App. 626, 131 S.W. 353; Cap-Keystone Printing Co. v. Tallman Co., Mo.App., 180 S.W.2d 802; Budd et al. v. Hoffheimer, 52 Mo. 297; Francis v. Saleeby, Mo.App., 282 S.W.2d 167; Outcault Advertising Company v. Caruthersville Plumbing and Auto Company, Mo.App., 230 S.W. 340. There are others. 27 Mo.Digest, Trial, ⅞^333.

Polen cites decisions that announce exceptions to the general rule declared in the company’s decisions and which analyze and distinguish most of them. One decision is Blodgett v. Koenig, 314 Mo. 262, 284 S.W. 505. There the suit was on an express contract for money in an amount fixed by the contract. The substance of plaintiff’s verdict directing instruction was that if the jury found the existence of the contract, that it was for the fixed amount in money, and that plaintiff had performed and defendant had not, plaintiff was entitled to a verdict for the entire amount. The defendant led the trial court to give erroneous instructions authorizing the jury to return a verdict for the plaintiff in a lesser amount if it found that the amount fixed by the contract was not “reasonable”. A verdict was returned for one-half of the amount for which plaintiff sued. The plaintiff acquiesced in the verdict. The ruling on appeal by the defendant was that he could not complain that the verdict was returned for a lesser sum because he had invited such a verdict by the instructions he led the trial court to give. In Cabool Nat. Bank v. McDowell, 184 Mo.App. 567, 170 S.W. 682, the plaintiff sued the defendant on an express contract for $500.00. The defendant denied the contract but managed to get evidence into the record which would authorize a finding for a lesser sum if believed. The court found for the plaintiff in a lesser sum. The plaintiff accepted the finding. The holding on appeal by defendant was that he could not complain of the finding of the court for a lesser sum because he had induced it by presenting the evidence on which it could be based. Relying on these decisions Polen argues that the company deliberately injected irrelevant evidence into the case tending to lead a jury of legally untrained laymen to believe that a diminution of the amount of the bonus was warranted and the company cannot now complain. What the company managed to get into the evidence was indeed irrelevant to the issues made by the pleadings.

The evidence was as follows: At the end of his first year’s employment, Polen was told by the company’s vice-president that his general performance as an employee, as well as his failure to develop new and marketable products, was unsatisfactory and that his employment was terminated. The company “offered” him $400.00 “termination pay” and Polen accepted. During the last six months of his employment he had been permitted to use a company car for his personal use while he was not using it on the company’s business. By agreement $25.00 per month was to be deducted from his salary as payment for his personal use of the car. This monthly $25.00 deduction was described as “nominal” and the inference was left that his personal use of the car was worth much more than $25.00 a month. There was evidence that the company forgot to deduct $25.00 for the first month and waived its right to collect it when it discovered its oversight. It did deduct $25.00 for the use of the car for each of the remaining five months, or $125.00. When the company terminated Polen’s employment he asked that the $125.00 deducted for use of the car be returned to him. The company “did give it to him”. The inference from all the questioning on these subjects was that the company was simply giving Polen money which was not his as of right. The money actually given to him amounted to $525.00, not including the $25.00 monthly deduction the company forgot and then waived when it discovered its oversight.

Polen’s base salary was $200.00 per week, slightly more than $10,000.00 per year. The vice-president testified that a few days before the termination of Polen’s employment a check list was submitted by him to Polen. This check list related to the quality of Polen’s performance of his general duties as an employee and not to his failure to produce new and marketable products. By it a list of questions was put to Polen regarding his performance of his various general duties. He testified that Polen replied to almost every question that his performance had been “hot and cold”. The inference was clear that his performance of his general duties had been sub-standard. He testified that a few days later Polen’s employment was terminated and he told him: “Frankly, you are not worth $10,000.00 from your record of productivity.” This statement related to Polen’s general performance and not to his failure to produce new and marketable products. The inference was clear that Polen had not even earned all of his base salary. All of the evidence recited went into the record without any objection from Polen.

The irrelevant evidence we have summarized did not get into the record in any purely casual or accidental way or merely as the result of a few isolated statements that slipped into the record during the course of the two day trial. The company deliberately developed this evidence at length on both days. It developed it in great detail, page after page, and from several witnesses. It developed it with no less emphasis than it placed on its relevant evidence. The company now argues that this irrelevant evidence was “obviously elicited only for the purpose of showing the total contract and the circumstances of the same.” The only contract in question in this case, as the company now says, was the bonus contract, not the total contract for the general employment of Polen. Evidence relating to it was irrelevant and it cannot be disposed of now by saying that it was only elucidative of the total contract. While this is true of all of this irrelevant evidence, it is especially true of the evidence indicating that Polen’s performance of his general duties was unsatisfactory.

After distributing all of this irrelevant evidence throughout the whole record, the company now strenuously argues that it tried its case strictly in accordance with the true issue, contract or no contract, $2,500.00 or nothing. The record of its performance at the trial refutes this argument. The irrelevant evidence it got into the record set the single and true issue free to explode in all directions. The trial court must have thought this evidence was validly a part of the case even though originally irrelevant. For, instead of objecting to any of it, Polen had joined issue on most of it and had struggled throughout the trial to refute it. We think it is plain that the trial court thought that the parties had voluntarily tried these irrelevant issues with Polen’s implied assent and that it was its duty to instruct the jury on the theory on which Polen sat by and let the case be tried. Porter v. Equitable Life Assur. Soc. of United States, Mo.App., 71 S.W.2d 766; Schanbacher v. Lucido Bros. Grocery Co., Mo.App., 93 S.W.2d 1076; Smith v. North British & Mercantile Ins. Co., 214 Mo.App. 539, 263 S.W. 1031; Schmidt v. Windish, Mo., 304 S.W.2d 891; Doutt v. Watson, Mo.App., 231 S.W.2d 230; Fellows v. Farmer, Mo.App., 379 S.W.2d 842 ; 27 Mo.Digest, Trial

We discern no other theory of the view the court held of this evidence and no other theory has been suggested to us. It refused Polen’s offered verdict directing instruction formulated on the theory that he was entitled to $2,500.00 or nothing. Instead it offered, and eventually gave, its own verdict directing instruction which was as follows:

“INSTRUCTION NO. 2

Your verdict must be for the plaintiff if you believe:

FIRST: That an agreement was made between defendant and plaintiff.
SECOND: That defendant .was to pay a bonus to plaintiff as part of the agreement.
THIRD: That plaintiff performed his part of the agreement.
FOURTH: That defendant has failed and refused to perform its part of the agreement.
FIFTH: That plaintiff has been damaged thereby.” (Emphasis supplied.)

Governed by this instruction, the jury could have found (1) That there was an agreement, (2) That defendant was to pay Polen a bonus, (3) That Polen performed his part of the agreement, (4) That the company failed to perform its part, and still it could not have found for Polen unless it also found that he had been damaged. Strangely enough, the company does not object to this instruction in this court, even though it is altogether inconsistent with the theory it now advances against Instruction No. 4 offered and given by the Court. Obviously, Instruction No. 2 authorized the jury to determine from all of the evidence, relevant and irrelevant, what damage Polen had suffered or whether he had actually suffered any damage at all, even though it believed his substantial evidence supporting his theory that he had entered an express contract with the company for payment of a $2,500.00 bonus unconditionally. It is unnecessary for us to approve or disapprove this instruction for it is not questioned on this appeal and we therefore refrain from pronouncing it correct or incorrect. But in view of the analysis we have made of this instruction, and the company’s tacit acceptance of it as legally correct by failing to question it on this appeal, Instruction No. 4 necessarily follows Instruction No. 2 as a correct definition of the measure of damages. We might dispose of this appeal on this ground alone, but we refrain from doing so.

Beyond doubt, there was discussion in an instruction conference held by the parties and the court regarding whether the jury should be instructed that it could return only a verdict for $2,500.00 or nothing, or whether it should be told to award Polen “such sum as you believe will fairly and justly compensate” him “for any damages you believe he sustained”, as it was finally told by Instruction No. 4. What was said about this by the parties to that conference is not in this record. However, the oral arguments of all counsel in this court are recorded as they are made and they are preserved for reference in the future. In his final argument in this court counsel for the company quite frankly told us: “It was not until after Mr. Mahota (Polen’s counsel) offered an instruction for a verdict for $2,500.00 or nothing and the court refused to give it, I, in an off the cuff remark, which was mistaken, said, T think that is all right. I think the jury can come in for less’ ”.

We are at loss to understand how counsel who strenuously argues that he tried his case strictly in accordance with the true issue, contract or no contract, $2,500.00 or nothing, can still hold to this view after frankly admitting that he made this statement to the trial court endorsing the theory of Instruction No. 4 before it was given to the jury. Even though counsel’s statement was “mistaken”, we know of no rule that exempts the company from its consequences. Counsel who endorse a legal theory in trial proceedings have a duty not to be mistaken and they have no privilege to be relieved of a mistake they may make after the court has acted on that mistake. One cannot complain in an appellate court that an action of the trial court was error if he himself invited that action and acquiesced in it. Blodgett v. Koenig, 314 Mo. 262, 284 S.W. 505; Cabool Nat. Bank v. McDowell, 184 Mo.App. 567, 170 S.W. 682; Palmer v. Security Ins. Co. of New Haven, Conn., Mo.App., 263 S.W.2d 210; Craig v. Rhodes, Mo., 298 S.W. 756; 3 Mo.Digest, D 1, Appeal and Error

Counsel’s statement to the trial court requires rejection of the complaint made against Instruction No. 4 and defeats the company’s appeal.

The company’s appeal cannot succeed for another reason. We hold that Polen is amply supported by the decisions on which he relies and that the record as made by the company renders its own decisions. inapplicable. Blodgett v. Koenig, supra, Cabool Nat. Bank v. McDowell, supra. By deliberately working the irrelevant evidence we have recited into the record, in what we can only regard as an effort to beat down or defeat entirely a verdict for Polen, the company has estopped itself from complaining of the refusal of the trial court to submit to the jury the sole question of contract or no contract, $2,500.00 or nothing, and of its action in enlarging by Instruction No. 4 the scope of the issues for the jury to try. 3 Mo.Digest 1, Appeal and Error

It is immaterial that the evidence was irrelevant to the original and true issue. Irrelevant evidence oftentimes has probative force and this irrelevant evidence not only had probative force but it was deadly.

We do not overlook that the actual money paid to Polen plus the one monthly deduction for personal use of the company car which it waived, constituted only $550.00, and that the verdict of the jury was for $1,850.00, $650.00, instead of $550.00, less than the $2,500.00 that Polen claimed. But there was other irrelevant evidence on which the jury could base the verdict it rendered and that evidence was that Polen had not even earned all of his $10,000.00 annual base pay. This last evidence was emphasized by the company and firmly implanted in the mind of the jury. It, too, had probative and deadly force and a logical tendency, the way the case was tried, to lead a jury of legally untrained laymen to reduce the verdict further. Actually, the company offered, and the Court refused, an instruction which would have allowed the jury to find “from the evidence that plaintiff was to be paid $200.00 a week, and a bonus would be paid to plaintiff only if plaintiff performed his job well and got certain new items or projects launched for the defendant.” (Emphasis supplied.) There was no pleading authorizing the trial of the question whether plaintiff both performed his job well and also got certain new items or projects launched for the defendant. This offered instruction certainly reveals that the irrelevant evidence of Polen’s poor performance of his general duties was not offered as merely elucidative of the entire contract as the company now says. It is true that the trial court refused the instruction but this did not take this evidence out of the case because Instruction No. 2, which the company does not question on this appeal, and Instruction No. 4, which it approved before it was given to the jury, still left the jury with authority to go ranging around the record and to consider any of the irrelevant evidence it might regard as justly warranting a reduction or a defeat of a verdict for Polen.

The company chose its course, tried the case according to its own rules, endorsed the theory of which it now complains, and now it is too late for it to complain. Sometimes litigants must suffer the consequences of their own ill-chosen strategy, and this, for the company, is one of those times. Because the strategy it chose destroys all warrant for its complaint, the judgment is affirmed.

All concur.


author: DOERNER, Commissioner.

text:
    M. B. BAYFIELD, Plaintiff-Appellant, v. Allen RADFORD, Defendant-Respondent.
    No. 32254.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.
    E. L. McClintock, Jr., Flat River, for plaintiff-appellant.
    Smith & Colson, Farmington, for defendant-respondent.
   DOERNER, Commissioner.

This is an action by a real estate broker for a commission of $500 alleged to be due from defendant. Trial to a jury resulted in a verdict and judgment for defendant, and after his post-trial motions were overruled, plaintiff brought this appeal.

The only points preserved by plaintiff for review relate to the giving of Instructions numbered 4 and 5, offered by defendant. On his part, in addition to denying that error was committed in the giving of those instructions, defendant urges that the plaintiff’s petition failed to state a claim upon which relief could be granted; and that the court erred in overruling his motion for a directed verdict at the close of all of the evidence because plaintiff failed to make a submissible case. Since the latter contention, if valid, will dispose of the appeal we consider it first.

Adopting the view of the evidence most favorable to plaintiff, it shows that on May 27, 1961 defendant executed a written listing contract which gave plaintiff the exclusive right to sell defendant’s property, numbered 303 Jackson Street in Bonne Ter-re, Missouri, for a period of 6 months. After about 30 or 60 days, at defendant’s request, the written contract was terminated by mutual consent. Approximately a year and a half later, in January, 1963, defendant encountered plaintiff near an overpass in Bonne Terre and asked plaintiff if he would help him sell defendant’s real estate. Plaintiff readily agreed to do so. Plaintiff testified that the only similarity between the oral agreement and the written contract was that it was agreed that he would receive the same commission, $500, if he sold the property, and that defendant agreed to keep him informed of any change in the price of $13,000 which defendant stated he wanted for the real estate. On cross-examination plaintiff was asked:

“Q. Now, then, were there any other terms or provisions to that oral agreement ?
“A. Not to my knowledge.
“Q. Suppose he (defendant) sold the property?
“A. If he sold the property, he didn’t owe me a dime.”

Following the making of the oral agreement plaintiff renewed his efforts to find a purchaser. He obtained a prospective buyer named Wilson, who executed an earnest money contract for the purchase of the property for $12,500 on June 3, 1963, which defendant accepted, but the contract was conditioned on Wilson’s procurement of a loan from the Veteran’s Administration, and when his application was refused the deal fell through. Plaintiff had obtained a key to the house from defendant and also showed the property to Mr. and Mrs. Delmar Weber on August 3, 1963, to a Mrs. Davis on August 8, and to a Mrs. Seiberling on August 9, his efforts being known to defendant. On Sunday, August 11, 1963, the Webers conferred with plaintiff at his office, discussed alternative methods of financing, and agreed to buy at a price of $12,500, the figure to which defendant had in the meantime reduced the price. However, on cross-examination Mr. Weber, who appeared as a witness for plaintiff, testified that their purchase of the property depended upon their ability to get financing. There was evidence on plaintiff’s behalf that had the Webers applied to the Bonne Terre Federal Savings and Loan Association for the loan necessary to finance their purchase it would have been granted. The Webers did not deposit any earnest money with plaintiff or execute any written contract to buy, and left with the understanding that plaintiff would call upon them the next day for a deposit of $200.

Upon the departure of the Webers from his office plaintiff was at first unable to contact defendant by telephone, but finally did so and called upon defendant at the latter’s home about 6:00 P.M. of the same day. From plaintiff’s somewhat disjointed statement as to the conversation which ensued it is difficult to reconstruct what each party said, or the order in which he said it. The gist of the matter, however, is that plaintiff informed defendant that he had his house sold, told defendant of the method of financing through an FHA loan which he had discussed with the Webers, and stated that he had advised the Webers that he was sure defendant would not consent to that method because it would cost defendant an additional five per cent which he was sure the defendant would not pay. He intended, he testified, to tell defendant that a conventional-type loan would be made, but that defendant interrupted him to say, “* * * ‘I’ve got another deal going,’ * * *” and “* * * ‘We will just have to wait until I see what develops on this other deal.’ * * * ” According to plaintiff, that'ended the conversation and he left immediately, apparently in a huff. So far as the evidence shows, plaintiff never did anything further regarding the sale to the Webers. He did, however, ascertain that Frank Edgar, the ultimate purchaser of defendant’s property, had applied to the Bonne Terre Federal Savings and Loan Association for a loan on the real estate on July 30, 1963.

As part of his case plaintiff introduced in evidence a part of defendant’s deposition, taken prior to the trial. Regarding the oral agreement concerning plaintiffs compensation defendant testified therein, “I told him (plaintiff) that if he sold the place I would still give him the same agreed figure that was in the (written) contract, but if I sold it, he would not receive anything.” Plaintiff agreed to that. No time limit was specified within which plaintiff had to effect a sale. Defendant also related in his deposition that at some unspecified time, but obviously before August 11, 1963, he had had a conversation with Edgar about the sale of his place, and that he told Edgar he would sell him the property for $12,000 “if he could get a loan.” Defendant also testified in his deposition that he did sell the property to Edgar on October 3,1963, for $12,000.

Both in another part of his deposition, read by his counsel, and in his testimony at the trial, defendant stated that no written contract was ever entered into by him with Edgar; and that in his conversation with Edgar he had told Edgar that if the latter would come up with some money and if the place wasn’t sold at the time he did so the place was his. Likewise, on both occasions defendant testified that when plaintiff called at his home on August 11, 1963, he told plaintiff, “* * * that the first man that came with money to put down on the place I would consider it sold. * * *” He also testified at the trial that he had never told plaintiff he would not sell to the Webers.

The question of when a real estate broker becomes entitled to a commission depends, in the final analysis, upon the terms of his contract with the owner of the property involved; Wolcott v. Moser, 364 Mo. 443, 262 S.W.2d 620; Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 453; and the parties may, of course, condition the owner’s liability for the payment of a commission upon prescribed terms and conditions. Tant v. Gee, 348 Mo. 633, 154 S.W. 2d 745; Staples v. O’Reilly, Mo.App., 288 S.W.2d 670. In the absence of a contractual provision to the contrary, the general rule is that when an owner of real estate merely places it in the hands of a broker for sale he does not thereby relinquish his right to sell the property himself or through a second broker, without the first broker’s aid; and that if the property is so sold, the owner is not liable to the first broker for any commission; George B. Loving Co. v. Hesperian Cattle Co., 176 Mo. 330, 75 S.W. 1095; Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell, Mo. App., 329 S.W .2d 393; Weisels-Gerhart Real Estate Co. v. Wainwright, 127 Mo.App. 514, 105 S.W. 1096; Cook v. Salisbury, Mo.App., 225 S.W. 112.

We are not here concerned with a contract by which the owner granted the broker the exclusive right to sell the property within a specified time, nor one which provided that the broker would be entitled to a commission if a sale of the real estate was effected by anyone during the contractual term, as in Chamberlain v. Gris-ham, 360 Mo. 655, 230 S.W.2d 721, and Schulte v. Crites, Mo.App., 300 S.W.2d 819. Both parties here agree that the written contract giving plaintiff the exclusive right to sell defendant’s property was terminated by mutual consent. What is more important, both parties agree that by the terms of their oral agreement, which followed the termination of the written contract, they understood and agreed that defendant retained the right to sell his property himself, and that if defendant sold it before plaintiff did, defendant would not be liable to plaintiff for any commission. Under such an agreement it is necessary for the broker, in order to become entitled to a commission, to either obtain a binding written contract from the prospective buyer obligating the buyer to purchase the land upon the terms specified by the seller, and present the contract to the seller; or to bring to the seller a buyer ready, willing and able to buy on the seller’s terms or terms which he accepts; Cook v. Salisbury, Mo.App., 225 S.W. 112; Lombard v. Sills, 170 Mo.App. 555, 157 S.W. 93. Disregarding defendant’s evidence, except such as might be favorable to plaintiff, it is apparent from plaintiff’s own testimony that he never satisfied either of the foregoing prerequisites with which he was required to comply in order to become entitled to a commission. Neither before, during or after his conversation of August 11th with defendant did plaintiff obtain and present to plaintiff a binding written contract executed by the Webers; nor did he bring the Webers, ready, willing and able to buy, to the defendant.

The reason is readily apparent. It is obvious that plaintiff chose to regard defendant’s statement that he had another deal going, and that they would have to wait to see what developed on it, as a declaration by defendant that prior to their conversation he had entered into a binding agreement to sell his property to Edgar. That, in fact, was the theory pleaded in plaintiff’s petition, for he alleged that, “* * * defendant entered into an agreement to sell the property on or before the 30th day of July 1963 * * and further alleged that when he notified defendant on August 11 that he had found a buyer, “* * * defendant stated he had already sold the property * * The fatal weakness in that theory, of course, is that by the admitted terms of their oral agreement defendant had retained the right to sell his property himself; and that having done so before plaintiff notified him of plaintiff’s supposed sale to the Webers, then, in plaintiff’s own words, “ * * * he didn’t owe me a dime.” Cook v. Salisbury, supra; Weisels-Gerhart Real Estate Co. v. WainWright, 127 Mo.App. 514, 105 S.W. 1096.

Thus plaintiff’s own evidence not only showed that he had failed to fulfill those conditions which were prerequisites to his right to a commission; but it also showed, under his theory of the case, that plaintiff was not entitled to a commission because as permitted by their oral agreement defendant had sold his property himself before plaintiff notified him of his supposed sale to the Webers. Defendant’s motion for a directed verdict at the close of all the evidence should, therefore, have been sustained. Having reached that conclusion it is not necessary to consider the other points raised by the parties.

The judgment below, which was in favor of defendant, is affirmed.

PER CURIAM.

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

Accordingly, judgment is affirmed.

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


author: MAUGHMER, Commissioner.

text:
    Vasil T. GEORGE and Evelyn Bradley George, Respondents, v. Robert E. WHEELER, Appellant.
    No. 24420.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.

      Jerome W. Seigfreid, Edwards, Seig-freid & Runge, Mexico, for appellant.
    Falzone & Falzone, Moberly, for respondents.
   MAUGHMER, Commissioner.

We have here a suit for damages which arose from a collision of two automobiles. The plaintiffs, Vasil T. and Evelyn Bradley George, were the owners of a 1959 Rambler Station Wagon. Carl Wheeler, as to whom plaintiffs have dismissed, but who was one of the original defendants, was the owner of a 1960 Pontiac Sedan. At about 9:00 p. m. on September 16, 1960, Mrs. George, with her two small children, was driving the Rambler south on Williams Street and just south of its intersection with Grant Street in the City of Moberly, Missouri, when she attempted to turn left into a “mobile home park”, where she and her family lived in a trailer house. At the same time and place the defendant Robert Wheeler, accompanied by his boyhood friend, John Ehler, was driving the Pontiac south on Williams Street and closely behind Mrs. George. Mrs. George was in the process of turning left into the trailer park and defendant was in the process of passing the Rambler on the left when the two vehicles collided.

The plaintiffs filed this suit alleging personal injuries to Mrs. George and property damage to their automobile in the gross sum of $5,000. There was no breakup as to the amount attributable to either personal injuries or property damage. Plaintiffs specified six charges of negligence in their petition. These charges were: “High and dangerous speed under the circumstances”, “speed in excess of 25 miles per hour (city ordinance speed limit)”, “failure to keep a lookout”, “attempting to pass when plaintiff was in the act of turning left and in so doing traveled on the wrong side of the street”, and “failure to stop or slow down when he saw plaintiff making or about to make a turn to the left”. Defendant denied generally and alleged plaintiff was guilty of contributory negligence in that she (a) failed to exercise the highest degree of care; (b) drove so slowly as to impede traffic; (c) failed to keep a proper lookout (d) carelessly and negligently made a left turn into defendant’s vehicle without signaling her intention so to do and (e) carelessly and negligently caused her vehicle to collide with defendant’s vehicle.

At the time of the accident the weather was clear and dry. Williams Street was paved with brick. Defendant had been following plaintiff’s car for at least three blocks. He had seen her car and she had seen his for a few blocks. There was testimony that plaintiff’s speed was from 10 to 25 miles per hour and defendant was traveling faster. One witness, Rosie Pitney, estimated his speed as high as 60 miles per hour. A police officer found 111 feet of tire brake marks left by defendant’s car. In any event, Wheeler “closed the gap” between the vehicles and attempted to pass. He said his automobile “overlapped” hers about half way when she pulled left into the collision.’ He said he blinked his lights before starting to pass. Mrs. George testified that she “put on my signal and my brakes and pulled over to make my left turn” and that “the hood or a portion of the hood” was in the driveway when the collision occurred. Her vehicle finally struck a tree on the east side of Williams Street. We have recounted the evidence, not as fully as is usual, but sufficiently to show that there were factual disputes as to speed, location of the vehicles when defendant started to pass and when plaintiff started to turn left, and what signals, if any, were given by either party. In other words, the jury heard evidence from which it might be inferred that plaintiff was negligent, that defendant was negligent, or that both were negligent.

The case was submitted and resulted in a nine member verdict for defendant “on plaintiffs’ claim for personal injuries and property damage”. Thereafter the trial court sustained plaintiffs’ motion for new trial on the ground that:

“The Court finds Instruction No. 6, specified in paragraph 2 of plaintiffs’ Motion for New Trial, to be erroneous for the reason that in defining right of way, the instruction did not supply the qualifying clause ‘provided a very careful person would so proceed under the same or similar circumstances’ inasmuch as there was evidence that defendant failed to use such care”.

Defendant has appealed and asserts that Instruction No. 6 need not carry the qualifying clause because it was given only in connection with the submission of contributory negligence and that to require defendant to be in the exercise of the highest degree of care before contributory negligence could apply to plaintiff would in effect destroy such defense because “contributory negligence implies or presupposes negligence on the part of the defendant”. 38 Am.Jur., Negligence, Section 177.

It is universally understood, we believe, that the defense of contributory negligence presupposes negligence on the part of the defendant and an instruction submitting such defense need not negate generally, negligence on the part of defendant. In fact such instructions usually contain the phrase “whether or not defendant was negligent” or “even though defendant was negligent”. This court in Rader v. David, 207 S.W.2d 519, 523, defined it this way:

“Contributory negligence is a want of due care on the part of a plaintiff claiming to have been damaged by the actionable negligence of another, combining and concurring with that negligence, and contributing to the damage as a proximate cause thereof, without which such damage would not have occurred”.

The court then commented:

“Any contributory negligence which is a proximate cause of an injury is sufficient to defeat a recovery, though the co-operating negligence of defendant was negligence per se such as the violation of an ordinance or statute”.

In the case before us it is apparent and all parties agree that Instruction No. 5 is the only direct instruction on contributory negligence which was given. Instruction No. 6 defines “right of way”. Failure to yield right of way is one of the contributory negligence possibilities submitted by Instruction No. 5. Instruction No. 6 must also be considered as modifying or explaining Instruction No. 5. We set out both instructions in toto:

“INSTRUCTION NO. 5, M.A.I. 28.01 modified
“Your verdict must be for the defendant, whether or not defendant was negligent, if you believe:
“First, plaintiff either failed to keep a careful lookout, or failed to signal her intention to make a left turn, or made a left turn when it could not be made with reasonable safety, or drove her vehicle into collision with defendant’s vehicle, or failed to yield the right of way; and
“Second, plaintiffs’ conduct, in any one or more of the respects submitted in paragraph First, was negligent; and
“Third, such negligence of plaintiffs directly caused or directly contributed to cause any damage plaintiffs may have sustained”.
“INSTRUCTION No. 6, M.A.I. No. 14.07 modified
“The phrase ‘right of way’, as used in these instructions, means the right of one vehicle to proceed ahead of the other.
“When the driver of a vehicle intends to make a left turn into a driveway and another vehicle is overtaking and passing and is so close that the turn would create a traffic hazard, the overtaking vehicle has the right to proceed past the turning vehicle”.

We quote in part from Chapter 304, Traffic Regulations, V.A.M.S. Section 304.019:

“No person shall stop or suddenly decrease the speed of or turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal * * *

Section 304.021, subsections 3 and 6:

“3. The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.
“6. The driver of a vehicle intending to make a left turn into an alley, private road or driveway shall yield the right of way to any vehicle approaching from the opposite direction when the making of such left turn would create a traffic hazard”.

Section 304.016, subparagraph 1 (3):

“(3) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle”.

We find no'statute specifically covering the respective procedures to be followed when an overtaking and left side passing vehicle attempts to go around a left turning automobile.

However, a left turning vehicle is directed by these statutes (1) when in an intersection, to yield the right of way to a vehicle approaching from the opposite direction “which is within the intersection or so close thereto as to constitute an immediate hazard”; (2) when turning into a driveway to yield to a vehicle from the opposite direction if “the making of such left turn would create a traffic hazard” and (3) when overtaken on the highway to “give way to the right” in favor of overtaking vehicle. A left turning automobile driver might almost be said to have only secondary rights. But every operator of a vehicle in Missouri must do so with the highest degree of care else be guilty of negligence.

Not all technical or actual violations of the rules of the road give rise to absolute liability or even always constitute negligence. In Lincoln v. Railway Express Agency, Inc. et al., 359 S.W.2d 759, 765, the Supreme Court said this:

“It has been frequently stated that traffic regulations are not unyielding and inflexible and are not to be applied rigidly, absolutely and peremptorily without regard to circumstances or conditions, Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, MacArthur v. Gendron, Mo.App., 312 S.W.2d 146, and that the duties thereby imposed may be qualified by circumstances, Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, such as considerations of safety, Lix v. Gastian, Mo.App., 287 S.W.2d 354, emergency conditions, Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736, or impossibility. Politte v. Miller, supra [Mo.App., 301 S.W.2d 839]. In such usual circumstances deviation from the statutory standard will not be considered as negligence per se”.

This court in Anthony v. Jennings, 368 S.W.2d 533, 538, made the following comment:

“Failure to yield as directed by Section 304.021(3), supra, does not in every instance amount per se to negligence or failure to exercise the highest degree of care, so as to tax such an operator with responsibility for every resultant accident. Each case depends upon its own facts. The evidence may in some cases require a directed verdict. In others, it is a question for the jury. It is best if an instruction hypothesizes the pertinent facts where such facts are in evidence. At the least it must permit and require the jury to decide if the actions complained of amounted to negligence and failure to exercise the highest degree of care. To instruct a jury that if the motorist turns left and is struck by an oncoming car, then he is negligent and liable is, in effect, directing a verdict”.

Appellant cites Reed v. Shelly, Mo.App., 378 S.W.2d 291. In that case the parties were transposed — the overtaking vehicle carried the plaintiff and the left-turning automobile was being driven by the defendant. At page 296, the court said:

“We believe the defendant’s argument applies the rules of the road to this situation in too positive and dogmatic a vein. These rules do not confer absolute rights, but rather impose reciprocal obligations which are qualified by the circumstances”.

And on page 297:

“Section 304.019 does not, in our view, prohibit a left turn unless the circumstances are absolutely free from danger, nor does it require the maintenance of a continuous observation to the rear prior to or during the making of a left turn”.

Instruction No. 5 offered by defendant as M.A.I. 28.01 modified, is clearly an instruction submitting contributory negligence. Therein five separate acts of plaintiff are presented to the jury as constituting contributory negligence on plaintiff’s part and authorizing a verdict for defendant under that defense if the jury concludes that plaintiff did any one of them. These five separate acts are: (1) “Failure to keep a careful lookout”, or (2) “failure to signal her intention to make a left turn”, or (3) “made a left turn when it could not be made with reasonable safety”, or (4) “drove her vehicle into collision with defendant’s vehicle”, or (5) “failed to yield the right of way”. A finding that plaintiff did any one of these and that such doing or failure to do was negligence and caused or contributed to cause her injury was sufficient to preclude a verdict for her — so the jury was told.

No action by an automobile operator, affirmative or negative, can constitute negligence or amount to contributory negligence unless the law casts a duty upon such operator to so perform, and unless there is evidence of a violation of that duty. Here the jury was told that if the plaintiff failed to perform any one of these five acts, the jury could find her guilty of contributory negligence. The law, of course, requires every operator of a motor vehicle to keep a careful lookout at all times and under all circumstances. Failure to do so amounts to negligence. It is mandatory too — not just in some, but in all instances — to signal for a left turn. Failure to do so amounts to negligence. We pass without discussion charges 3 and 4, that plaintiff turned left when it could not be done with reasonable safety and that she drove her vehicle into collision with defendant’s vehicle. We pass 3 and 4 without discussion primarily because neither party raises any point thereunder. That leaves act number 5, as set forth in Instruction No. 5, that plaintiff “failed to yield the right of way”, and was thereby negligent. Defendant followed Instruction No. 5 with Instruction No. 6, which told the jury just what was meant by the phrase “right of way” as used in the instructions. Therein the jury was told that:

“When the driver of a vehicle intends to make a left turn into a driveway and another vehicle is overtaking and passing and is so close that the turn would create a traffic hazard, the overtaking vehicle has the right to proceed past the turning vehicle”. (Italics added.)

Speaking generally those acts of carelessness which under the same circumstances would amount to general negligence if done by the defendant will constitute contributory negligence if done by plaintiff.

Respondents contend that the giving of Instruction No. 6 constituted error because the instruction did not contain additionally the clause “provided a very careful person would so proceed under the same or similar circumstances”. The trial court agreed and awarded a new trial for that reason. The two instructions, as given, told the jury that it could find plaintiff contribu-torily negligent if she turned left when defendant was “overtaking and passing” and was “so close that the turn would create a traffic hazard”.

We believe that if these parties were transposed and plaintiff (as a defendant) operated her vehicle as posed by the instructions, she could be found to have been negligent. If such conduct were by defendant, it would be direct negligence and if by plaintiff, it would be contributory negligence.

We are told in the footnote to M.A.I. Instruction 17.08 on failure to yield right of way that when such failure is submitted under contributory negligence “the appropriate right of way definition must be used”. The definition of right of way for a “vehicle making left turn into alley or driveway” is M.A.I. 14.07 and it adds the clause applicable here to defendant — the approaching vehicle — “provided a very careful person would so proceed under the same or similar circumstances”. Footnote 2, under M.A.I. 14.07, referring to this specific clause says: “This clause must be added where there is evidence that the party entitled to the right of way failed to use such care”. The trial court applied the M.A.I. suggestion and awarded plaintiffs a new trial because the clause was not added. We are unable to agree.

We are fully aware of Civil Rule 70.01 (b) and (c), V.A.M.R. which we set forth:

“(b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.
“(c) The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined”.

Instances will undoubtedly arise where the M.A.I. instruction is not given but the court will rule the defect to be nonprejudicial. This is not such a case. If plaintiffs were entitled to have the disputed clause included in Instruction No. 6, the failure to do so would clearly be prejudicial. In the case before us we believe that Instructions 5 and 6 properly present the applicable law and are not in error.

In this case there was evidence that defendant was negligent. We do not believe it was necessary for defendant to (1) have been free from negligence or (2) have acted only as a “very careful person” in attempting to pass plaintiff, in order to be entitled to have plaintiff’s possible negligence in turning left submitted to the jury under a contributory negligence instruction.

If defendant must have been entirely free from negligence or have acted only “as a very careful and prudent person” in attempting to pass plaintiff, he would not need to invoke the defense of contributory negligence. Such defense is for use in those cases where defendant has been negligent — has not exercised the proper degree of care — but the accident was contributed to by negligence of plaintiff. Creech v. Blackwell, Mo.Sup., 298 S.W.2d 394. We believe the issue of contributory negligence was for the jury. In our opinion Instructions Nos. S and 6 correctly submitted that issue. We hold further that neither Instruction 5 nor Instruction 6 is reversibly erroneous because Instruction 6 did not contain the clause “provided a very careful person would so proceed under the same or similar circumstances”. It follows, therefore, that it was error to award plaintiffs a new trial.

The order granting plaintiffs a new trial is reversed and the cause is remanded with directions to reinstate the judgment for defendant.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion by MAUGH-MER, C., is adopted as the opinion of the Court.

HOWARD and BLAIR, JJ., concur.

CROSS, P. J., not participating.