author: BARRETT, Commissioner.

text:
    Gope PANJWANI, Respondent, v. STAR SERVICE & PETROLEUM COMPANY, a Corporation, and William Parker, Appellants.
    No. 51461.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.

      John F. Nangle, Clayton, for respondent.
    J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellants.
    Irl B. Baris, Newmark & Baris, St. Louis, Associate Counsel for Star Service & Petroleum Co., appellant.
   BARRETT, Commissioner.

This is an action by a customer, Gope Panjwani, for actual and punitive damages for an assault and battery, against the assistant manager, William Parker, of a gasoline filling station and the owner-operator, Star Service and Petroleum Company. Parker in his individual capacity filed a counterclaim against Panjwani in which he claimed $500 actual and $500 punitive damages because his “feelings were wounded, he was insulted, humiliated and caused to suffer mental anguish” by reason of Panjwani’s violation of a city ordinance against offensive language and disorderly conduct. The jury found against Parker’s claim, and while Panjwani sought $65,000 actual and $65,000 punitive damages, the jury returned a verdict against both defendants for $1300 actual damages and $7100 punitive damages. The parties all filed motions for a new trial, the plaintiff as to compensatory damages only, the court overruled all defendants’ motions and granted plaintiff a new trial on “the sole issue of damages.” Specifically the court found that the “verdict herein as to compensatory damages is inadequate and the verdict herein as to punitive damages is excessive. A new trial will be limited to the issue of damages.” Upon the defendants’ appeals numerous questions have been briefed and argued, but two of the problems are in fact dispositive of the appeal and it is not necessary to consider the other assignments of error. The appellants contend, in the first place, that the court erred in denying their motions for directed verdicts, and second, if plaintiff did make a submissible case, that the court erred in restricting a new trial to the single issue of damages.

The appellants, as manager and owner, do not challenge the general rule that for an assault and battery by an acting manager their customer may recover both aetual and punitive damages; “the overwhelming weight of authority supports the proposition, either expressly or by necessary implication, that an employer may be held responsible in tort under the doctrine of respondeat superior for an assault committed by his employee while acting within the scope of the employment, even though the latter acted wantonly, and contrary to the employer’s instructions.” 34 A.L.R.2d 372, 396, “Liability of employer * * * for a personal assault upon customer, patron, or other invitee.” The Missouri cases following and applying this general rule are all collected in that annotation and it is not necessary to list them here. The corporate appellant, Star Service & Petroleum Company, contends, however, that Parker had completed service to Panjwani and had gone on to serve another customer, and, it says assuming that Parker did strike the plaintiff in the face with the nozzle of the pump hose, he would not have been acting in the course and scope of his employment and with the intent to promote its business and, therefore, there was no liability on its part under the rule. Parker claimed that he did not either serve or strike Panjwani, he claims that Panjwani stumbled and fell and struck his face on a concrete island.

The difficulty with both these contentions is that they do not comport with the inferences as the jury reasonably could and did draw them from the facts. Gope Panjwani is an exchange student from India attending Washington University’s school of chemical engineering. The Star Service Station is at 810 North Skinker Boulevard and the plaintiff lived at 5647 Waterman and was a frequent patron of the station with his 1955 Oldsmobile automobile. On November 7, 1962, between 7:00 and 7:30 o’clock in the evening Panjwani drove into the station and stopped at a pump island near an ethyl gasoline pump. Several other automobiles were being serviced. Mr. Parker, acting manager, was there in uniform and there were two other attendants. Panjwani says that Parker came to his automobile and “I asked him, Will you please give me one dollar’s worth of Ethyl ?’ ” He said that Parker put the gasoline in his tank, came back to the car door and “I asked him, Would you please check the oil and rear tires?” But Parker refused and instead “started using abusive language * * * Using abusive language and saying, T ain’t going to do all of that so-and-so.’ When I say ‘so-and-so’ it means the usual bad words. T ain’t going to do that with just one dollar’s worth of gas. I ain’t got no time. I got customers waiting.’ * * * I was surprised. I said, ‘If you don’t want to give service, you don’t have to abuse me.’ ” And Parker replied, “All right. Pay up and get the Hell out of here, I don’t have time to stand here and spend service on you for one — just one dollar’s worth of gas.” Panjwani said that as he was taking his money from his pocket, he looked to see if there was some other attendant that he could call on to check his tires but Parker said, “Hurry up, hurry up, pay up and get the Hell out of here.” Panjwani inquired, “Who is the manager?” Parker replied, “I am the assistant manager, what are you going to do about it?” Panjwani paid Parker the dollar but he continued “to abuse me.” Panjwani got out of his automobile and started walking toward the office to get someone to check the car because “the tire was low and I couldn’t go home without getting the tire checked. If I get a flat, I cannot go and appear at the exam the next morning.” But as he walked toward the station Parker said “ ‘You get the Hell out of here.’ * * * He was talking while he was walking and by this time I arrived at the next pump and he told me ‘Come on, come on here.’ * * * It just happened so quick. I was a few feet away from him and he went toward me and all of a sudden he picked up the hose and swung it in my face and smashed it and I fell down.” The next thing he remembered was waking up in the hospital with multiple, comminuted fractures of the bones in the left side of his face.

To note briefly two other independent witnesses and bits of testimony, Mrs. Coleman, who was sitting in her husband’s automobile said that she saw Parker and Panjwani talking but could not plainly hear what they said, “Well, all at once, I saw this hose flying out through the air, saw Mr. Parker strike that man with it. * * * With that gas hose pump. He swung it through the air and hit him with it. * * * He hit the ground. He knocked him down with it.” To Mr. Coleman, Parker said, “I don’t trust them damn foreigners. They don’t talk to me that way. I ain’t got time to be checking tires.”

As indicated, in these circumstances and from the permissible inferences the plaintiff made a submissible case of a vicious, unprovoked assault and battery “as plaintiff was engaged in trying to settle a controversy concerning a portion of defendants’ business, on the premises, during working hours, and with the employee to whom plaintiff had been sent to discuss the controversy by the corporate defendant’s manager.” Barger v. Green, Mo.App., 255 S.W.2d 127, 131; Simmons v. Kroger Grocery & Baking Co., 340 Mo. 1118, 104 S.W.2d 357. As the court observed, in a leading case, when a bridge watchman shot a trespassing pedestrian after he had driven him from the bridge: “The evidence tended to show that Hill was engaged in the performance of this duty when he fired the fatal shot; that the business was not done; that it was not taking care of itself, but that the defendant’s servant at the time was engaged in it, and concerned about it; that he shot dum fervet opus (“while the work glows”); and so far as evidence discloses, was concerned about and engaged in no other business. The court committed no error in refusing the demurrer to the evidence, nor in the instruction submitting the main issue to the jury.” Haehl v. Wabash Railroad Co., 119 Mo. 325, 340, 24 S.W. 737, 740. Or as another court observed in Bova v. St. Louis Public Service Co., Mo.App., 316 S.W.2d 140, 144, when a bus driver assaulted a motorist with whom the bus had collided when the motorist boarded the bus to get the names of witnesses and other information: “the question as to whether Bethel was acting in the course of his employment and within its scope in making the assault upon plaintiff was for the jury. Bethel was at the time in charge of and operating the bus. His duties were to operate the bus, collect fares, take on and discharge passengers, and maintain a schedule. By giving him such duties defendant must be held to have invested him with authority to make decisions for it, when necessary, in connection with the performance of those duties. When made, the operator’s judgment becomes the judgment of defendant. By executing that judgment in an unlawful manner, the defendant is liable.”

It is not necessary to detail the specific inferences and factors differentiating this case from the two instances relied on by the appellants, suffice to say that in the one “there was no evidence that Kreeger was seeking to settle any matter or claim, actually or within the apparent scope of his authority, by discouraging or driving away the claimant” (the husband of a gas patron assaulted by a meter reader). Milazzo v. Kansas City Gas Co., Mo., 180 S.W.2d 1, 5. Or in the other when a deliveryman for a hardware company assaulted a customer in a store after the two of them had engaged in a heated argument: “In the instant case the master’s business was done. The fencing had been delivered. The plaintiff was seeking no recovery (redress) for the slight scratch which he received in the process of the delivery. He decided to report the driver and the driver struck him. * * * The only conclusion that can be reached upon the evidence here is that the driver for the defendant, provoked and angered by his experience in the store, gave vent to his feelings by striking the plaintiff when he came out to take the license number of the truck.” Tockstein v. P. J. Hamill Transfer Co., Mo.App., 291 S.W.2d 624, 627, 628.

The other meritorious and determinative question concerns the trial court’s action in granting plaintiff a new trial “limited to the issue of damages.” There have been no Missouri cases concerned with the precise question presented by this appeal and its particular record under the statute (RSMo 1959, § 510.330, V.A.M.S.) and Civil Rule 78.01, V.A.M.R., there are only the analogies in the general rules that a new trial in a tort action may be limited to the issue of the damages recoverable provided, among other factors, “that the issue of damages be entirely separate and distinct from the issue of liability.” 85 A.L.R.2d 9, 26, “Separate trial of issues of liability and damages in tort,” and 29 A.L.R.2d 1199, “Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages awarded.” There have been cases in other jurisdictions involving assaults and other actions in which exemplary damages were assessable in which new trials were granted and limited to the issue of damages only, even as to punitive damages only. Baker v. Carrington, 138 Va. 22, 120 S.E. 856; Brewer v. Second Baptist Church, 32 Cal.2d 791, 197 P.2d 713. But upon this record in which Parker denies that he assaulted Panjwani, and in which the viciousness of the assault would necessarily be shown upon the very issue of whether punitive damages should be assessed and if so the amount, it would appear to be impossible for the jury to adequately appraise the claim of damages, especially punitive damages, without full proof of all facts necessary to establish liability for the basic tort in the first instance. Padayao v. Severance, 116 N.J.L. 385, 184 A. 514; Wax v. Altshuler, 22 N.J.Super. 229, 230, 91 A.2d 768; Klein v. Millside Farms, Inc., 8 N.J. 240, 84 A.2d 705. When punitive damages are sought for a malicious assault it is all but inherent in the character of the action that “the evidence relating to wilful misconduct is so inextricably tied up with that relating to primary negligence that a fair trial upon either issue requires a trial of both issues together.” Atlantic Coast Line R. Co. v. Bennett, 4 Cir., 251 F.2d 934, 939. It is of the essence of the rule permitting a new trial as to damages only that “the propriety of such limitation in a particular instance is generally regarded as resting in the discretion of the court ordering the new trial” (85 A.L.R.2d l. c. 41), and this is not to anticipate or to attempt to set forth a hard and fast rule for all future cases. It is to say with deference, however, that upon this particular record the issues of tortious misconduct and consequent liability in the first instance and punitive damages are not entirely separate and distinct but are so interwoven that it was an abuse of discretion to not award a new trial on all issues. Accordingly the judgment awarding plaintiff a new trial is affirmed but insofar as it limits the new trial to damages only the cause is reversed and remanded for a new trial on all issues.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT,- Commissioner.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Julius BYRTH, Defendant-Appellant.
    No. 51246.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
    Max Sigoloff, St. Louis, for appellant.
   BARRETT,- Commissioner.

Under an information charging the possession “of a narcotic drug, to wit: 7.5 grams” of marijuana and a prior felony conviction of assault with intent to kill, the appellant Julius Byrth has been found guilty by a jury and the court has fixed his punishment at five years’ imprisonment.

The information, largely in the language of the statute, appropriately charges the offense and the penalty assessed by the court is well within the prescribed limits of “not more than twenty years” for the first offense. RSMo 1959, §§ 195.020, 195.200, V.A.M.S.; State v. Virdure, Mo., 371 S.W.2d 196. The objection urged to the information, as the court understands, is that it “has placed the defendant’s prior conviction as the primary charge and the charge of possession of marijuana by the defendant was incidental to the primary charge of the prior conviction.” Because of this it is said, therefore, that the court erred in having permitted proof of the commission of another crime. It is not perfectly clear just what the appellant’s claim is — if it is that the information first charged the prior conviction and then alleged the substantive offense it is not apparent how this may have prejudiced the appellant. The prior conviction, as to both form and substance follows the language of the statute and the court heard and found the prior conviction independently of the principal trial. RSMo 1959, § 556.280, V.A.M.S.; State v. Wolfe, Mo., 343 S.W.2d 10. In addition and dis-positive of any claim of error in the admission of other offenses is the fact that not only was the alleged prior felony admitted, the appellant testified and on direct examination his counsel said: “Now, Mr. Byrth, this probably will he brought out, and I would like for you to bring it out. Have you ever been arrested prior to this time? A. Yes, I have. Q. Have you even been convicted? A. Yes, I have. Q. And on what charge was that conviction ? A. Felonious assault. Q. All right. And were you sentenced to the penitentiary as a result of that? A. For three years. * * Q. Have you had any run-ins or trouble with the law ? A. Thirty days in the workhouse on a charge of peace disturbance.”

On cross-examination, to which there was no objection, state’s counsel inquired of another conviction: “Q. You weren’t convicted on July 7, 1962 for resisting arrest; is that correct? A. Oh, yes, I was; five days in the workhouse.” In part the appellant’s complaint is that there was improper proof of another crime, that he did not offer “evidence of his character” and therefore character was not in issue and so it is argued that it was improper to permit proof of other offenses. But aside from the defendant’s own testimony on direct examination, he did testify in detail to the circumstance of his arrest and refuted the state’s substantive evidence. The appellant was not disqualified as a witness either by reason of his prior conviction or by reason of the fact that he was the accused but having availed himself of the privilege of testifying, under both statutes, “the convicton may be proved to affect his credibility, either by the record or by his own cross-examination * * * and the party cross-examining shall not be concluded by his answer.” RSMo 1959, §§ 491.050, 546.260, V.A.M.S. The revising and reenactment of the second offender act (RSMo 1959, § 556.280, V.A.M.S.) did not repeal or modify §§ 491.050 and 546.260 and if the defendant becomes a witness in his own behalf, he may be contradicted and impeached as any other witness, including to affect his credibility by proof of his prior convictions. State v. Wolfe, Mo., 343 S.W.2d 10; State v. Washington, Mo., 383 S.W.2d 518, 523.

The appellant’s other briefed and argued points relate to his motion to suppress evidence and incidentally to proof of the substantive offense. It was asserted in his motion to suppress and now that there was no probable cause for the police officer’s search of the automobile, particularly its trunk, that appellant was driving and therefore it is said that there was an unreasonable search and seizure, an invasion of his constitutional guaranties and that the evidence obtained by the search was inadmissible. The difficulty with the appellant’s contentions in these respects is that they ignore the facts as they were and could be found from the state’s evidence. Upon the hearing of the motion and upon the trial these briefly were the circumstances: On July 29, 1964, officers Prokopf and Verbanaz were cruising near Kennedy and Goodfellow when they observed a “white over blue” Plymouth automobile being driven with only one headlight. They also noted that the “out-of-state plate” (Indiana) was so bent that the license number was obscured. The officers stopped the automobile, Byrth was in the driver’s seat, and there were five people in it. One of the officers asked to see Byrth’s driver’s license and “he stated he did not have a license.” Officer Prokopf ordered Byrth out of the automobile and as they stepped from behind the Plymouth to the sidewalk, “The subject went for his back pocket * * * in such a manner that I grabbed his hand in fear he might come up with a weapon. * * * Well, he went into his righthand back pocket, and I grabbed his hand, and he come out with some green vegetable substance. * * * I immediately grabbed his hand and put the stuff — took the stuff away from him. * * * At this time I grabbed the stuff from his hand, and the rest of it from his pocket.” This quantity of vegetable matter, “(i)t looked like marijuana and smelled like marijuana” to the officer, was placed in a separate package and later turned over to the crime laboratory. In the course of officer Prokopf s testimony it was said that the Plymouth “was a stolen automobile,” defendant’s counsel said, “He will testify that he stole the automobile as far as that goes.” In any event, there in the street the officers made a “visual inspection” of the automobile, including the trunk and found “(a) small amount of green substance, vegetable substance was in the trunk, yes, sir.” Subsequently at the police station the automobile trunk was again searched and more vegetable material was “found loose on the floor.” This material was separately packaged and eventually the crime laboratory established that the contents of the boxes were 7.5 grams of marijuana. It was the defendant’s claim that when the officer told him “to spread-eagle on the car” that the officer “stuck his hand in my pocket and when he come out, he said, ‘what is that ?’ And when I turned around, I swung at his hand, T don’t know what, but I don’t want you to put it in my pocket.’ ” At this juncture it may be interpolated, despite the appellant’s claim and explanation, that the detailed circumstances support the jury’s finding of the appellant’s guilt of the substantive offense of possession of a narcotic drug. State v. Baines, Mo., 394 S.W.2d 312; State v. Owens, Mo., 391 S.W.2d 248; State v. Jefferson, Mo., 391 S.W.2d 885.

Furthermore in these circumstances there was no basis for the appellant’s motion to suppress as to the marijuana, including that found in the trunk of the automobile. Criminal Rule 33.03, V.A. M.R. The appellant was driving in the officer’s presence an automobile at night with but one headlight, a misdemeanor (State v. Camper, Mo., 353 S.W.2d 676), he had no driver’s license and was in and driving a stolen automobile (State v. Padgett, Mo., 289 S.W. 954, 956), (although he subsequently claimed that one Green gave it to him to drive) and finally there was the vegetable matter in his hand which the officer suspected was marijuana and in all these circumstances there was a lawful arrest and, of course, as an incident to the arrest a lawful search of the automobile (State v. Edwards, Mo., 317 S.W.2d 441), and a lawful seizure of the marijuana and no error in overruling the motion to suppress evidence. State v. Baines, supra; State v. Jefferson, supra; State v. Owens, supra. And, of course, since there was a lawful search and seizure the two packages of marijuana were admissible in evidence. State v. Menard, Mo., 331 S.W.2d 521, 525-526.

Accordingly, for the indicated reasons, the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    Warren NICHOLS, Appellant-Respondent, v. Charlotte D. BLAKE, Respondent-Appellant.
    No. 51184.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.
    As Modified on Court’s Own Motion Nov. 24, 1965.

      Sherman Landau, St. Louis, for appellant-respondent.
    Murphy & Kortenhof, Ben Ely, Jr., St. Louis, for respondent-appellant.
   EAGER, Presiding Judge.

This is a suit for personal injuries arising from an automobile collision. There is no contention that plaintiff did not make a submissible case of negligence, so it will not be necessary to discuss the facts of the occurrence in detail. Plaintiff had a verdict for $3,500. Defendant filed a motion for new trial, and plaintiff later filed his motion, but confined it to the issue of damages. At the presentation of the motions, counsel for defendant asked orally in the alternative for a new trial on damages only. The trial court overruled both motions and each party appealed. Defendant’s counsel have not seen fit to brief the plaintiff’s appeal as a respondent, but have limited their brief to the points on defendant’s appeal. It will be necessary to consider the appeals separately.

Our jurisdiction lies in the fact that plaintiff, at trial, claimed damages in the sum of $22,500, and the difference between that sum and the amount of his recovery exceeds $15,000. Pinkston v. McClanahan, Mo., 350 S.W.2d 724.

Briefly, the facts of the occurrence were as now set out. On October 22, 1962, at about 10:30 a. m. defendant Charlotte D. Blake, 84 years of age, was driving a 1951 Plymouth and seeking to go from her home to some location in St. Louis County. Her husband, somewhat older, was riding with her. She had missed a turn and, immediately prior to the collision, she was retracing her route to some extent. She proceeded north on Olive Street Road to its junction with east and west Highway 40, a four-lane road with no divider, on which there was a 70 mile speed limit. A short distance west of that junction No. 40 began a distinct downslope to the west, so that the view west from the junction was much limited. According to defendant’s testimony she stopped at No. 40, saw nothing coming either way, then turned slowly east (right), looked to her rear, and started very slowly to make a “U-turn,” intending to get back on Olive Street. After she started to turn, she saw plaintiff’s car eoming from the west “fast,” and tried to turn back to the right; however, the left front of her car and the right side of plaintiff’s car collided; she further testified that at the moment of impact she was “stopped,” and that she had not “quite gotten to the center of the highway” (perhaps inconsistent with her stated turn to the right). She was not injured and her husband was not injured. The husband was ill at the time of trial and did not testify.

Plaintiff testified: that he had been traveling at approximately 55 miles an hour but had slowed somewhat before he saw the defendant because he expected to turn; that he was traveling in the lane closest to the center line; that he saw her car as he came over the crest of the hill, and it was coming out of the intersection and heading slowly east in the outer lane; that suddenly defendant began a “U-turn” and blocked both eastbound lanes; that he first started to pass her on the right but saw a steep dropoff on that side, applied his brakes, sounded his horn, and swung to the left; that, in the meantime, defendant had stopped, but started up again; that as he tried to pass on the left (getting pretty well over into the westbound lanes), the left front of defendant’s car struck the right side of his car, just behind the right door. Plaintiff testified that the impact occurred in the westbound lanes. He had decreased his speed to 20-25 miles an hour, and was “almost skidding” at the time. There was no other traffic. Plaintiff was thrown to his right, and against the right door or doorpost, striking the right side of his hack. Both cars were eventually driven away. Plaintiff testified that the cost of repairing his car was in excess of $500, but the car was owned by the Nichols Equipment Company, a corporation, and the extent of the damage was shown, apparently, to demonstrate the force of the impact.

The case was tried primarily on the issue of damages. Plaintiff had been, and was, in the business of selling certain types of industrial equipment, such as pneumatic air tools, hoisting equipment, etc.; he had worked until the end of September, 1960, for Master Power Corporation, earning $15,468.50 in the first nine months of that year. He then quit voluntarily to start his own company, selling similar lines; the new company was incorporated, but plaintiff handled most of the sales work, was its president, and obviously was the managing official. His wife and two of plaintiff’s friends were directors; plaintiff owned 69% of the stock. In 1960 (three months) he received as compensation $250; in 1961, $1,200 — $1,400; in 1962, $2,600 or a little more; in 1963, $12,700; and in 1964 he was drawing a salary at the same rate as 1963. He had never actually received $20,000 in any one year from either company.

Plaintiff had suffered an infection of his left hip in 1941, for which there had been several operations. This left him with his left leg shortened a little more than an inch and with a restricted motion in that leg. He testified that this had not hampered his activities. In his further testimony he said: that after the collision involved here his neck and back were very sore, that his neck recuperated but that his back had progressively given him trouble, above and below the waist; that he had had no such trouble previously; that after the injury he used heat, sedatives and rest for about ten weeks before he went to a doctor; that during that period he lost about eight or nine half days from his work and that he had continued to lose from two to four half days per month up to the time of trial; that on those days he would simply quit early to go home and rest, and that he does substantially nothing but rest on Saturdays and Sundays; that it is particularly difficult for him to drive long distances as he previously did, and that he has frequently shifted to planes for his longer trips; that the injury has affected his ability to do his work in various particulars, and that “it has affected my income”; that he has entirely quit playing golf and taking care of his yard. On January 11, 1963, he went to a doctor of osteopathy, Dr. Wm. F. Lueb-bert, who specialized in orthopedics. He received heat treatments and manipulations, began to wear a brace prescribed for his back, and had his left shoe built up. He continued to go to this doctor about once a month. His medical bill to the time of trial was $157. No other special damages were shown. He has difficulty in sitting long in one position and is required to be careful of the type of seats he uses. He did not claim to have missed any full days of work. Plaintiff’s wife largely corroborated his testimony concerning sundry of his incapacities since the injury.

Nothing particularly material was developed in the testimony of the Highway Patrolman who came to the scene; he did testify that the major part of the debris was 2-3 feet south of the center line, which would seem to have placed the impact largely in the eastbound lanes.

Plaintiff’s osteopathic physician testified that he found (in addition to the impairment of the left hip) limited motion in plaintiff’s back and muscle spasm in the region of the first and second lumbar vertebrae; his conclusion was that there was a strain of the “thoracic and lumbar spine” with inflammation of the muscles and that there was a direct connection between plaintiff’s condition and the collision; he also testified that plaintiff would continue to need medical care in the future, and stated the belief that the condition resulting from the collision was permanent. He admitted that the shortness of one leg, and the consequent tilting of pelvis, could cause back strain, and that it was “possible” that plaintiff’s complaints could have been so caused. Dr. Earl Holt, an orthopedic surgeon, examined plaintiff about a year before the trial and noted the impairment of the left hip; he testified that it was his conclusion that any existing disability was due to the hip impairment which had caused strain on the low back, and that he found no residue of any injury to plaintiff’s back from the collision. He admitted that one with such a hip was more apt to be hurt in an accident.

Plaintiff’s expectancy was shown to be 29.42 years. Defendant’s husband was originally a defendant, but plaintiff dismissed as to him at the trial. Certain other features of the evidence will be referred to later.

On plaintiff’s appeal, two points are made: (1) that the court erred in refusing to admit in evidence a transcript from a Magistrate’s Court which showed that defendant had entered a plea of guilty to a charge of “failure to yield right of way,” being a declaration against her interest; and (2), that the amount of the verdict and judgment was “unrealistic, unjust, and grossly inadequate * * We first consider that appeal.

On (1), supra, plaintiff cites Myers v. Maryland Casualty Co., 123 Mo.App. 682, 101 S.W. 124, 127; Neibling v. Terry, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249. These opinions merely state the doctrine that the results of criminal proceedings, generally, are not admissible in civil actions because the parties, the issues, and the requirements of proof are different; but that, as an exception to the rule, pleas of guilty have been received as confessions or declarations against interest. This point was not raised in plaintiff’s motion for a new trial in any manner, and it is now foreclosed. The motion for new trial attacked only the inadequacy of the verdict. It would be entirely too tenuous to say that the present point was included because it conceivably might have affected the size of the verdict. As a further reason, if any could conceivably be needed, the admission of such an exhibit could only go to establish defendant’s liability, and the verdict itself established that. The point is denied.

On the alleged inadequacy of the verdict plaintiff cites Donahoo v. Illinois Terminal R. R. Co., Mo., 300 S.W.2d 461, Gooch v. Lake, Mo., 327 S.W.2d 132, and 25 C.J.S. Damages § 40, as holding that impairment of earning capacity is a proper element of compensation. There would seem to be no doubt concerning the validity of the principle, but the evidence must establish that contention with reasonable certainty in order to justify submission. C.J.S., supra. Here, this element of damage was specifically submitted in Instruction No. 9. Apparently, what counsel really argues is that the jury disregarded this evidence. Counsel says that because plaintiff was earning at the rate of $20,000 a year in the first nine months of 1960, before he left the Master Power Corporation, he was entitled to have the jury consider all of his lost time, past and future, on that basis. One difficulty with the argument is that plaintiff voluntarily abandoned the employment where he was earning at that rate, and started a new business in which many elements might affect his own earnings, as well as those of the new corporation. One could hardly say without speculation that either before or after trial he would have earned at the rate of $20,000 per year in his new employment, except for the disability he claimed to have suffered. All of this evidence was before the jury and it passed on the issue. He testified that he did lose some time from his work and suffered various inconveniences. The jury also had evidence before it that any remaining incapacity was due to his prior hip impairment; on that theory, if accepted, the jury could have awarded him a sum computed as compensation for certain inconveniences and loss of time for a period immediately following the accident.

It seems unnecessary here to review our various cases discussing the question of inadequate verdicts. See generally: Brown v. Moore, Mo., 248 S.W.2d 553; Hufft v. Kuhn, Mo., 277 S.W.2d 552; Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426; Spica v. McDonald, Mo., 334 S.W.2d 365; Glore v. Bone, Mo., 324 S.W.2d 633, and cases there cited; Pinkston v. McClanahan, Mo., 350 S.W.2d 724. It has been said that the appellate court should interfere only when the verdict is “grossly and shockingly inadequate” (Brown, supra), or when it appears to have been the result of “passion and prejudice” Brown, Hufft, Pinkston) or “misconduct of the jury” (Pinkston) or an “arbitrary abuse” of the jury’s discretion (Brown, Pinkston). We consider the better rule to be that, while of course the appellate court does not weigh the evidence, it should “limit its inquiry to the determination of whether there is substantial evidence to support the jury’s verdict and whether the trial court abused its discretion in refusing to grant plaintiff a new trial.” (Bone, supra) ; and, further, that “ * * * by the phrase ‘substantial evidence to support the verdict,’ as here used, is meant and it includes whether the amount of the verdict is responsive to the evidence on the issue of damages, * * *.” (Pinkston, supra.) Applying these rules, we may not say that this verdict was not responsive to the evidence as a whole, or that there was not substantial evidence to support it. The trial court gave this matter careful consideration as indicated in its memorandum opinion. We certainly may not say that it abused its discretion. Plaintiff’s Point 2 is denied.

On defendant’s appeal four points are raised: (1) that the court erred in permitting plaintiff’s counsel to argue to the jury a calculation of lost earnings at the rate of $20,000 a year; (2) that the court erred in not permitting defendant’s counsel to read to the jury the prayer of plaintiff’s original petition for $3,500 in damages; (3) that it was error to permit in evidence the earnings of Nichols Equipment Company; and (4) that the reference in argument by plaintiff’s counsel to “settlement negotiations” constituted prejudicial error. We take up these points in the order stated.

On (1), counsel cite two cases to the effect that it is erroneous to permit an argument by counsel upon any basis not supported by the evidence. Reese v. Illinois Terminal R. R. Co., Mo., 273 S.W.2d 217; Wartenbe v. Car-Anth Mfg. & Supply Co., Mo.App., 362 S.W.2d 54. There need be no argument about that principle, as such. Here counsel for plaintiff argued, over objections, that based on plaintiff’s “proven earning capacity” of $20,000 a year, he lost $40 for each lost half day, and that such lost earnings, computed to continue as in the past for the period of his expectancy, would be $33,120. There was evidence that for the first nine months of I960 plaintiff’s earnings were at the rate of $20,000 a year. But he abandoned that rate of earnings and his job, and embarked upon a new career of his own choosing. It would be highly speculative to say that he could attain that rate of earning in his new business, for there are entirely too many elements involved in such a venture. We hold that it was improper to argue here a specific anticipated' loss based on plaintiff’s earnings in his prior and abandoned position. While this argument was improper, we do not consider that it was prejudicial. Counsel make no specific point here (although they did in the trial court) that the verdict was excessive, but more or less seek to “back into” that contention, stating that the verdict’s “excessive nature reflects the effect of the lost earnings argument by plaintiff’s counsel.” It can hardly be conceived that the jury here was substantially motivated by that argument. The amount of the- verdict was well within the range of the permissible evidence, if the jury believed the substantial parts of plaintiff’s testimony.

Next counsel complain of the refusal to permit the reading to the jury of plaintiff’s prayer for $3,500 in his original petition, later twice amended and standing at $22,500 at trial. That petition was filed on January 2, 1963, which, as counsel emphasize, was nine days before plaintiff first went to a doctor. The court did permit the reading of a paragraph from that petition stating that plaintiff had incurred medical expense. Apparently, the theory of the trial court in rejecting the offer to read the prayer was that the prayer was, legally, no part of the petition and that it had nothing to do with the issues. There are cases which so state. Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381, 385, citing cases; Zimmerman v. Jones, Mo.App., 236 S.W.2d 401, 404. These are opinions in which the court sought to determine the nature of the respective suits, generally whether law or equity; and those statements mean, as we interpret them, that the prayer may not be considered as a substantive part of the petition so as to alter its true nature. However, if a party has made a claim or statement which is inconsistent with his claims at trial, it should be received as a declaration against his interest, for whatever it may or may not be worth, — whether it be in the prayer of a petition or in an extrajudicial statement or otherwise. See, generally, Carter v. Matthey Laundry & Dry Cleaning Co., Mo., 350 S.W.2d 786. But, again, we cannot find that the refusal of this evidence was prejudicial. The estimate of damages by a plaintiff and his attorney, made little more than two months after an injury, could hardly be of persuasive importance, and the verdict rendered certainly does not reflect any inflation by reason of the omission of this evidence.

Next, counsel urge error in admitting evidence of the net earnings of Nichols Equipment Company, the corporation organized by plaintiff in 1960. These were shown to be as follows: 1962 — $326.31; 1963 — $5,295.94; 1964 (through July) — a loss of $6,002.90. Objection was made that the court should only permit evidence of the earnings of plaintiff personally. In the years just enumerated plaintiff was drawing compensation from that company in the amounts stated previously. Plaintiff’s theory was that, it being largely a one-man company, “What the company earns I earn.” Originally the corporation was a party to the suit, seeking recovery for the damage to its car, but it had withdrawn as a party before trial. Defendant says that any loss of earnings by the corporation could not be recovered by the plaintiff individually, and that there was no justification for the evidence. Counsel cite Seymour v. House, Mo., 305 S.W.2d 1, which is not at all decisive on this question. It does indicate that while a loss of business profits (to an individual) is generally too speculative to permit evidence thereof as an item of special damage, .nevertheless, in those situations where the element- of personal service predominates, the evidence may be shown, merely as an aid in determining the pecuniary value of plaintiff’s loss of time in connection with the supposed impairment of his earning capacity. The evidence in our case involved a corporation. On the whole, we think that the evidence here was inadmissible, but actually it tended to prove so little concerning plaintiff’s earning capacity in a newly established business, and it was so inconsistent w’thin itself (establishing a substantial profit for 1963, after the accident, and a loss for 1964) that it could not possibly have resulted in any substantial prejudice to the defendant. Such a verdict as this could be sustained by evidence of moderate pain, the inconveniences suffered, and a limitation of activities, business and personal, past and future. Of these things there was evidence. And, with all the objections which were made to this evidence, and the colloquy which ensued, the jury could hardly have been misled.

The last point made may be taken care of very briefly; counsel insists that the court erred in permitting plaintiff’s counsel to argue that the case should have been settled. The theory of the exclusion of evidence (and argument) concerning settlement negotiations is that such efforts should be encouraged and, if they fail to materialize, a party should not be penalized. Kelsey v. Kelsey, Mo.App., 329 S.W.2d 272. The situation here is in reverse. There were no negotiations for settlement and plaintiff’s counsel merely commented that this was the kind of case that should have been settled. Therein, if any inference was to be drawn, it would seem that he weakened his tactical position, and the defendant could not complain. Certainly there was no prejudice to defendant. See, generally, Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348, 352-353.

The trial court considered very carefully both motions for new trial. We conclude that it acted well within its discretionary limits in overruling both. On plaintiff’s appeal, and on defendant’s appeal, the judgment is affirmed.

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri ex rel. Dorothy GRAY and L. L. Gray, Relators, v. The Honorable Richard C. JENSEN, Judge of the Circuit Court of Jackson County, Division No. 13, at Independence, Missouri, Respondent.
    No. 51420.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1965.
    Ben W. Swofford, Kansas City, John C. Milholland, Harrisonville, Swofford & Waisblum, Kansas City, Anderson & Mil-hoiland, Harrisonville, of counsel, for re-lators.
    Jack G. Beamer, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondent.
   FINCH, Judge.

This is an original proceeding in prohibition seeking to prevent respondent from enforcing an order that relators answer an interrogatory propounded by a defendant in a suit pending in the Circuit Court of Jackson County.

Relators, Dorothy Gray and L. L. Gray, her husband, brought suit against two osteopathic physicians, Drs. Young and Schwab, seeking damages for medical negligence, for various breaches of the physician-patient relationship and for common assault. The nature of the issue presented herein does not necessitate a recital of the specific acts alleged in plaintiffs’ petition.

On February 2, 1965, the case being set for trial on February 22, 1965, defendant Young submitted various written interrogatories to relator Dorothy Gray. She answered all of the interrogatories except No. 3. Included in the interrogatories answered was one which asked plaintiff to state whether she “has been examined or treated by any doctor, physician, surgeon, chiropractor or osteopath or other medical person since her deposition was taken December 14, 1964.”

Interrogatory No. 3 was as follows:

“State the names and addresses of all doctors, medical specialists or other practitioners of the healing arts that plaintiff intends to call as witnesses to testify at the trial of this case.”

To that interrogatory plaintiff objected on the basis that it sought privileged matter and that the information sought constituted work product of plaintiff’s counsel. The objection was overruled and plaintiff ordered to answer in ten days. This proceeding followed.

The sole question presented is whether under our discovery practice it is permissible by interrogatory to obtain from the adversary party a listing of the names and addresses of the witnesses whom the adversary plans to call to testify.

Discovery by interrogatory is now permitted by Rule 56.01, V.A.M.R. With reference to permissible subject matter of inquiry by interrogatory, said Rule 56.01(a) provides in part as follows:

“Interrogatories may relate to any matters which can be inquired into under Rule 57, * *

Turning then to Rule 57, we find that said Rule 57.01 (b), relating to matters which may be the subject of examination in depositions, provides as follows:

“Scope of Examination. Unless otherwise ordered by the court as provided by this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. The examining party may not inquire as to the contents or substance of statements, written or oral, obtained from prospective -witnesses by or on behalf of another party. The production or inspection of any writing obtained or prepared by the adverse party or coparty, his attorney, surety, indemnitor, or agent, in anticipation of litigation or in preparation for trial (except a statement given by the interrogating party) or of any writing that reflects an attorney’s mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 60.01, the conclusions of an expert, shall not be required.”

This court already has held that discovery by interrogatory of names and addresses of witnesses to an accident, whether known to the party himself or his attorney, is permissible and that such knowledge and information does not involve work product of counsel and is not privileged matter. See State ex rel. Pete Rhodes Supply Co. v. Crain, Mo., 373 S.W.2d 38, and State ex rel. Hudson v. Ginn, Mo., 374 S.W.2d 34. In both of these cases, however, the interrogatory was directed solely to factual information as to names and addresses of witnesses to the occurrence. Neither case involved the right to inquire as to names and addresses of those whom the adverse party “intends to call as witnesses to testify at the trial.” We find no Missouri case dealing with that question.

Our Rules of Civil Procedure were adopted by this court on August 10, 1959, to become effective April 1, 1960. This court had appointed one committee which drafted proposed rules which were then submitted to the bench and bar of the state for comment. Thereafter, this court appointed another committee to revise the proposed rules in the light of the comments and suggestions received. It was the draft of this latter committee which was approved and adopted by the court. The rules as thus drafted and submitted by the committee were accompanied by committee notes following each rule. These were explanatory in nature, giving information as to the source of the proposed rule, any changes made from the language of the statute or rule from which taken, and other explanatory comments. These committee notes are comparable to legislative committee reports which pertain to legislation which is passed and are to be considered in determining the scope and meaning of the rule under consideration, just as the legislative committee reports are considered in construing the legislative enactments. The committee note following Rule 56 appears in Vol. 2 of Vernon’s Annotated Missouri Rules, at page 189, and reads in part as follows :

“Paragraph (a) of this rule broadens the scope of discovery on written interrogatories by adopting Rule 33 ,of the Federal Rules of Civil Procedure and a portion of the amendments tentatively recommended by the Federal Advisory Committee on Rules in 1954. One portion of the recommended draft omitted is that which would require the answering party to furnish ‘a listing of the names of witnesses whom the party intends to call at the trial.’ * * * Otherwise the recommended amended Federal Rule 33 is adopted. * * *” (Emphasis supplied.)

Subsequently the committee note lists changes made by the rule in interrogatory practice from what it had been under § 510.020, RSMo 1949, but then goes on to say:

“As is discussed in the note to Rule 57.01, no change is made in the right of the answering party to refuse to disclose privileged matter, including the lawyer’s work product.”

Reference to the committee note under Rule 57.01 discloses this language:

“Paragraph (b) is substantially Federal Rule 26(b) with two added sentences to protect the work product of the lawyer, the party, his agent and privies, and the conclusions of an expert. The opinion in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, protecting the attorney’s work product is reinforced by express specific language of the added sentences. * * * ”

A consideration of the language of the rules and the accompanying committee notes causes us to conclude that Interrogatory No. 3 was not a proper inquiry under Rule 56 and that relators should not be required to answer it. This was not merely an inquiry as to those who have knowledge. Such information was sought by Interrogatory No. 1 which was answered (names and addresses of those who examined or treated prior to December 14, 1964, had been furnished in a deposition given on that date). Instead, Interrogatory No. 3 sought the names of the medical witnesses whom plaintiff planned to call as witnesses to testify. This goes beyond a request for those who have knowledge. It invades the area of judgment and trial strategy as to which persons actually will be used as witnesses. This usually will be governed by the opinion and advice of trial counsel. To require an answer to this inquiry would be to invade the work product of counsel and the privileged relationship between attorney and client.

We think it is crystal clear that the committee which drafted Rule 56 did not intend to permit the inquiry by interrogatory with which we here are concerned. The committee comment states that Federal Rule 33 was adopted, including the changes therein proposed in 1954, with certain exceptions. These exceptions are then listed in the comment and the first one so enumerated is “a listing of the names of witnesses whom the party intends to call at the trial.” It would be hard to imagine a clearer expression of the committee’s intention to deny this particular inquiry. We hold that the rule was adopted in the light of that explanatory comment, and that Interrogatory No. 3 submitted to relators was improper and not permissible under Rule 56.

The fact that Interrogatory No. 3 inquired about medical witnesses to be used is of no particular significance. The result herein would have been the same if it had asked generally for the names and addresses of all witnesses to be called and used in the trial. Consequently we need not consider the questions raised and briefed involving the physician-patient privilege and its possible application to the propriety of Interrogatory No. 3.

Our preliminary rule, prohibiting respondent from requiring relators to comply with his order of March 2, 1965, to answer Interrogatory No. 3, is made absolute. It is so ordered.

All of the Judges concur.

      . All references to rules are to Vernon’s Annotated Missouri Rules unless otherwise indicated.


author: STOCKARD, Commissioner. EAGER, Presiding Judge

text:
    STATE of Missouri, Respondent, v. Rudy PAGE, Appellant.
    No. 51491.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Special Asst. Atty. Gen., St. Louis, for respondent.
    J. Whitfield Moody, James H. Harrington, Legal Aid & Defender Society of Greater Kansas City, Kansas City, for appellant.
   STOCKARD, Commissioner.

Defendant Rudy Page, jointly charged and tried with Buford Reed, was found guilty of unlawfully selling a narcotic drug. His punishment was assessed by the jury at imprisonment for ten years. The trial court subsequently remitted four years of the sentence, and defendant has appealed from the ensuing judgment. At trial defendant was represented by court appointed counsel, but on this appeal he is represented by the Legal Aid and Defender Society of Greater Kansas City which has filed a brief on his behalf.

From the evidence a jury reasonably could find that the following occurred. On June 11, 1963, Wilburn Wayne Creed reported to John C. Wilkie, Jr., a narcotics agent for the United States Bureau of Nar-cotíes, that defendant, known to Creed by the name of “Short Change,” had offered to sell some marijuana to him. Wilkie went with Creed to meet defendant at a parking lot. After some negotiation between defendant and Wilkie, defendant said he would “send his man” to see Wilkie and talk about price. Defendant left, and immediately thereafter Buford Reed appeared and Wilkie purchased from him a “can” of marijuana for $25.00.

In his brief defendant challenges the indictment, the sufficiency of which we review without a challenge, and which may be challenged by defendant on appeal even though not challenged in the trial court. Supreme Court Rule 28.02, V.A.M.R. The other matters presented in his brief were not preserved for appellate review in the motion for new trial. However, defendant urges that they should be reviewed' pursuant to Supreme Court Rule 27.20(c), V.A. M.R., because failure to do so “would be a manifest injustice.” We shall review the challenge to the indictment, and we shall review the other matters presented in the brief to determine whether there occurred “Plain errors affecting substantial rights” from which has resulted “manifest injustice or miscarriage of justice,” and which would, in the exercise of the discretion of this court, authorize corrective action.

Defendant’s challenge to the indictment is that it charges him with selling marijuana but does not specify which portions or derivatives of the plant he sold. He then asserts that it is not unlawful to sell some portions or derivatives of the plant.

The indictment charged that on June 11, 1963, in Jackson County, Missouri, the defendant “did then and there sell to one John Wilkie, Jr., certain narcotics, to-wit: 95.850 grams of Marijuana, botanically known as ‘Cannibis Sativa/” Section 195.-020 (all statutory references are to RSMo 1959, V.A.M.S.) provides that it is unlawful for any person “to * * * sell * * * any narcotic drug, except as authorized in this law * * *.” Narcotic drugs are defined in Section 195.010 to include “cannabis,” and “cannabis” is defined to include “all part of the plant Cannabis Sativa L. whether growing or not; * * * but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, * * * ” and certain other compounds and products. Defendant cites State v. Tevis, Mo.App., 340 S.W.2d 415, and quotes therefrom the following statement: “The general rule as to the contents of an information which charges an offense, to which there are exceptions negativing guilt, is that all such exceptions must be pleaded in the information when they occur as parts of the statutory definition of the offense, in all cases where, if such exception be omitted, the offense cannot be accurately described.” We do not disagree with this general rule, but it has no application in this case. Defendant ignores Section 195.180 which provides that “In any * * * indictment, and in any action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant.” This statute authorized the indictment to be in the language used, and there is no challenge of its validity. See People v. Lynumn, 21 Ill.2d 63, 171 N.E.2d 17 (subsequently reversed for improper use of confession, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922); People v. Yeargain, 3 Ill.2d 25, 119 N.E.2d 752; and People v. Lee Foon, 275 N.Y. 229, 9 N.E.2d 847. This challenge to the indictment is without merit.

Defendant also contends that there was no “proof as to which portions of the plant or derivatives were sold.” The proof was that the substance was marijuana which is known as cannabis, and cannabis is statutorily defined as all parts of the plant cannabis sativa except the mature stalks and certain products of the plant. Therefore, when the proof was that a sale of cannabis occurred, reference was had to the parts of the plant defined as cannabis; not the parts excluded from that definition.

Defendant challenges Instruction 2, the verdict directing instruction, “because it does not require the jury to find that appellant ‘knowingly’ sold narcotics.” A general objection was made by defendant to all instructions, but the only challenge to Instruction 2 in the motion for new trial, but not now specifically presented on appeal, was that “there was no evidence adduced that the defendant, Rudy Page, actually sold narcotic [drugs?] to witnesses on June 11, 1963.”

Defendant did not present any evidence. The defense that the item which he arranged to be sold to John C. Wilkie was not known by him to be marijuana was not advanced either by a pleading or by evidence. Therefore, the issue presented is whether knowledge on the part of defendant that the item sold was a narcotic drug, as statutorily defined, is an essential element of the crime charged which the State is required to prove, and which the jury must find to exist even though the defendant has not denied such knowledge.

Section 195.020 does not include as an element of the offense, knowledge on the part of an accused that the item sold was a narcotic drug. “ ‘Whether or not criminal intent or knowledge is an element of a statutory crime is a matter of statutory construction to be determined in a given case by considering the subject matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature.’ ” City of St. Louis v. Williams, Mo., 343 S.W.2d 16. See also 22 C.J.S. Criminal Law § 30; 21 Am.Jur.2d Criminal Law § 91. In Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930, it was held that in the prohibition or punishment of particular acts, a State may in the maintenance of a public policy provide “that he who shall do them shall do them at his peril, and will not be heard to plead in defense good faith or ignorance.” The power of eliminating mental intent or consciousness of wrongdoing as an essential element of a statutory offense has been held to be properly exercised with respect to laws prohibiting the sale of narcotics. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604. There the indictment charged an unlawful sale of a derivative of opium. A demurrer was sustained on the ground that the indictment did not charge that defendants sold the inhibited drugs knowing them to be such. After pointing out that the statute did not make such knowledge an element of the offense, it was held that the demurrer was wrongfully sustained, and the judgment was reversed. See also Wharton’s Criminal Law and Procedure § 17. We find it difficult to conceive of any offense which so adversely affects public welfare and interest as the wrongful sale of narcotic drugs. This unquestionably justifies a State, in the exercise of its police power, to prohibit all sales thereof, except as specifically authorized, and to place on all persons the responsibility to see that they do not sell narcotic drugs unlawfully. Defendant does not challenge the authority of the State to create by statute an offense which does not include guilty knowledge as an element, and he does not contend that if the State can do so in some situations this is not one of them.

As previously pointed out, the indictment followed the language of the statute which did not include knowledge as an element of a wrongful sale of narcotics, and such indictment was not required to contain such allegation. United States v. Balint, supra; State v. Worley, Mo., 375 S.W.2d 44; State v. Virdure, Mo., 371 S.W.2d 196. Instruction 2, the verdict directing instruction required the jury to find every element of the crime as alleged in the indictment. We expressly do not rule in this case whether the verdict directing instruction must require a finding of knowledge on the part of the defendant that what he sold, or arranged to be sold, was a narcotic drug when lack of such knowledge is interposed as a defense by pleading or by evidence. What we do rule is that when no such defense is interposed, as in this case, it is not necessary that the verdict directing instruction require a finding of guilty knowledge when the indictment does not contain such allegation and is not required to do so. Under the circumstances of this case Instruction 2 was not deficient for the asserted reason.

Defendant challenges Instruction 5 which is the usual and frequently approved instruction which informed the jury that “all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting; * * His challenge, not easily understood, is that the instruction was improper because Section 195.010 “has restricted the capacities in which a person may act to effect a statutory ‘sale’ so that the instruction permitted the jury to find guilt where a reasonable interpretation of the facts would have placed appellant outside the statutory capacities.” Apparently reference is had to Section 195.010(29) which defines a “sale” as a barter, exchange, or gift or offer therefor, and each such transaction made “by any person, whether as principal, proprietor, agent, servant or employee.” Defendant admits that an accessory may be tried and convicted as a principal, Section 556.170, but he asserts that this does not apply to Chapter 195 because Section 195.-010 “has not redefined the functions of principal, agent or employee,'” and if there is “a reasonable interpretation of the facts which would place defendant outside of the statutory capacities he has lacked the -benefit of an instruction defining these capacities.” He further argued that there is no testimony which “conclusively establishes” that he was a principal and that Reed was his agent, and there is no “conclusive testimony” that the reverse was true. This is not the test. The evidence authorized a finding that defendant arranged for the sale by his agent Reed. Both defendant and Reed participated in the sale; defendant negotiating the sale and arranging for it, and Reed making the actual delivery and receiving payment. Instruction 5 properly advised the jury that persons so acting are jointly guilty of the offense charged.

Defendant next asserts that it was error to admit testimony as to prior sales and to permit the prosecuting attorney to refer to prior sales in his argument. There was no objection to the testimony, and it was not improper. John C. Wilkie, Jr. testified as follows: “I asked him [appellant] if we could do any business tonight. He said, ‘I’ve got the same thing as we gave you before.’ I said, ‘A can ?’ And he said, ‘yes.’ I said, ‘What about the price?’ He said, ‘It’s going to cost you the same thing.’ ” The statements attributed to appellant by Wilkie were so much a part of the res gestae and so inextricably interwoven with the sales talk and negotiations being carried on that they tended to prove the commission of the offense charged, and were admissible. See 22A C.J.S. Criminal Law § 683, p. 741 et seq. For a statement of the general rule concerning the admission of such testimony, see also State v. Adamson, Mo., 346 S.W.2d 85, 87.

The oral argument of counsel is not contained in the transcript, and the allegation in appellant’s brief does not prove itself. We note, however, that in the argument portion of his brief defendant sets out what purports to be a quotation of the oral argument to which objection is now made. We shall not set it out. It is sufficient to say that it does not appear that it was objected to at the time, and even if an objection had been made the argument was not improper under the circumstances.

From the above it is apparent that the indictment was sufficient, and that there was no plain error affecting substantial rights of defendant which would justify this court in invoking Supreme Court Rule 27.20 (c). In fact, our review discloses that if all the matters presented in defendant’s brief had been properly presented in a motion for new trial, none would have required or even authorized a reversal of the judgment.

We have examined all those matters on the record before us to be reviewed pursuant to Supreme Court Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

FINCH and STORCKMAN, JJ., concur.

EAGER, P. J., concurs in result in separate opinion filed.

EAGER, Presiding Judge

(concurring in result).

The majority opinion considered several matters which were concededly not preserved in the motion for new trial, and does so upon appellant’s request to consider them as “Plain errors affecting substantial rights * * *” under Rule 27.20(c). Conceivably, the claim of error concerning Instruction No. 2 might have been so considered; the indictment is, of course, properly considered without specification of error. The other alleged errors considered in the opinion, namely, those concerning Instruction No. 5, the admission of evidence, and rulings upon the argument, cannot possibly be considered under Rule 27.20(c) without disregarding entirely the rules and procedure for the proper preservation of error upon appeal. I merely concur in the affirmance of the judgment.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. James Richard RUSSELL, Appellant.
    No. 51047.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Norman A. Seiner, Special Asst. Atty. Gen., Clayton, for respondent.
    Forrest Boecker, St. Louis, for appellant.
   STORCKMAN, Judge.

The defendant was convicted of the offenses of second-degree burglary and of stealing. Sections 560.070 and 560.156, RSMo 1959, V.A.M.S. At a hearing out of the presence of the jury, the court found that the defendant had been previously convicted of a felony as charged in the amended information. Section 556.280. The defendant was represented at the trial as he is here by counsel of his own choice. After his motion for a new trial was overruled, the defendant was sentenced to concurrent sentences of four years on each of the two convictions.

On this appeal the defendant has briefed four allegations of error relating to admission of evidence of his confession, the overruling of his motion for a continuance, remarks of the court regarding the presentation of the state’s case, and the admission of certain other evidence.

Since the sufficiency of the evidence to support the conviction is not challenged, a brief statement of the evidence will suffice. Edward Boeschenstein, the owner and operator of a hardware store at 6925 Gravois in the City of St. Louis, closed and locked all doors and windows when he left his place of business at about 5 p. m. on February 22, 1964. There was a small amount of money left in the cash register and safe. When he went back to the store at about midnight in response to a call, the store had been broken into, the money was gone, and some guns had been moved to a bench near the rear door. Three police officers had gone to the store in response to a radio call at about midnight. They were Frank Rebesa, Joseph Burns, and Leonard Wehrle. Officer Rebesa went to a parking lot in the rear of the store and found the rear door had been jimmied and forceably opened. Shortly after Officers Burns and Wehrle stationed themselves at the front of the store, a man inside who proved to be the defendant kicked the glass out of the front door and backed through the opening. The defendant was arrested immediately and searched. He was wearing gloves and had in his possession about $36 in silver coins, a flashlight and a glass cutter. Another man found hiding inside the store was arrested and jointly charged with the defendant, but they were tried separately.

The defendant made some incriminating statements shortly after he was arrested. The next morning he was interrogated by Arthur Friedman, an assistant circuit attorney, in the presence of Mr. Boeschen-stein and a police officer. The defendant made a statement in which he admitted breaking and entering the store and taking the money mentioned. He described in considerable detail the circumstances surrounding the commission of the offense. The statement was taken on a tape recorder and later transcribed. The defendant did not sign the written transcript and it was not read to the jury, but witnesses testified to admissions and declarations made by the defendant. To the extent necessary, further details of the evidence will be discussed in connection with the points relied on by the defendant.

The defendant’s first contention is that the court erred in overruling his “motion to strike his confession, on the showing that he had no advice of counsel and was not advised of his right to counsel.” In this connection the defendant relies chiefly on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Both the appellant and the respondent cite cases from other jurisdictions decided subsequent to and in the light of Escobedo. Tn some of the cases, confessions were held to have been properly obtained and in others not. The cases need not be discussed because the decision in each case depends on its special circumstances and this court has previously considered the force and effect of Escobedo.

The facts in Escobedo briefly were that the defendant was arrested suspected of murder and was interrogated while in custody at police headquarters and a confession was obtained. Before and during the interrogation, Escobedo made several requests to see his lawyer who was in the headquarters building and who persistently sought to see his client but was denied access to him. Furthermore, Escobedo was not advised by the police of his right to remain silent. There was also evidence of aggravated procedures in connection with the questioning. The Supreme Court of the United States held under the circumstances that no statement extracted from Escobedo during the interrogation could be used against him at the trial because of violations of his constitutional rights. The Supreme Court of Missouri has had occasion to consider the Escobedo case and stated that “we will not expand that ruling beyond the facts of that case where Es-cobedo had a lawyer employed who was trying to see him and was not permitted by the police to do so.” State v. Howard, Mo., 383 S.W.2d 701, 703.

There is not the slightest evidence in the present case that the statement was involuntary or the result of any sort of coercion. There was no testimony by the defendant and no hearing was requested out of the presence of the jury. The state’s evidence showed affirmatively that the defendant was advised of his constitutional right to remain- silent and was warned that what he might say could be used against him. There was testimony by the assistant circuit attorney who did the questioning which might be construed that the defendant was not asked “whether he wanted the advice of a lawyer”.

The evidence demonstrates that the defendant was caught red-handed, breaking out of the store he had burglarized with the loot in his possession. His statements would not appear to be unexpected. Shortly after his arrest, the defendant admitted that after he and his companion spent several hours drinking in a tavern across the street from the hardware store, they went over and broke into the store hoping that they could obtain something which they could sell. This testimony came in without objection. About ten hours after his arrest, another statement was taken. Testimony concerning this statement was given by an assistant circuit attorney and at the conclusion of his testimony, defendant’s counsel made this motion which the court overruled: “If the Court please, on the basis of the cross-examination, I move that all the narration by this witness as to what this defendant said on this occasion be stricken as an improper statement under the Constitution.”

The defendant was properly advised in accordance with Amendment Five to the Constitution of the United States that he could not be compelled to be a witness against himself. Escobedo was not so advised. Amendment Six provides that an accused shall enjoy the right to have the assistance of counsel for his defense. The most that counsel could have done at the time in question was to advise the defendant to remain silent, but the defendant had already been advised of that right. Furthermore, he had had a previous brush with the law and probably knew of that right as well as his rights with respect to counsel. In any event, there is no showing that the defendant requested counsel which further distinguishes this case from Escobedo.

Under the facts and circumstances of this case, Escobedo is not controlling and the trial court did not err in overruling defendant’s motion to stike the testimony regarding his confession. See State v. McCollum, Mo., 377 S.W.2d 379, 384 [9].

When the defendant was arraigned on April 16, 1964, he was represented by counsel. The original counsel never withdrew, hut on June 8, 1964, when the case was set for trial, an additional attorney entered his appearance and filed a motion for a. continuance on the ground that the defendant was under psychiatric treatment and the psychiatrist’s opinion as to defendant’s criminal responsibility was necessary in order for counsel to advise the defendant “what position to take in this case.” The motion referred to an attached certificate of the doctor, but there is no such certificate in the record. Another stated ground for the continuance was that the second attorney was employed on June 3, 1964, and needed additional time to investigate the case and take depositions if necessary. The defendant contends that the trial court abused its discretion in overruling the motion for continuance. No authority is cited in support of the contention.

Eight witnesses were endorsed on the amended information, but only five were used by the state. Of the five called, three of them, the police officers, were not cross-examined by the defendant. There is no proof of the allegations of the motion and the record does not indicate any lack of preparation or disadvantage to the defendant attributable to the refusal of the continuance. The application for continuance was addressed to the sound discretion of the trial court and no abuse of discretion has been shown. State v. Le Beau, Mo., 306 S.W.2d 482, 486 [5] ; State v. Arrington, Mo., 375 S.W.2d 186, 189 [2] ; State v. Harrison, Mo., 285 S.W. 83, 85 [1]. The contention is denied.

When the state sought to have the assistant circuit attorney read the typewritten transcript of the defendant’s statement taken by tape recording on February 23, 1964, the defendant objected and the discussion was further continued out of the hearing of the jury. During this discussion with counsel, the court expressed doubt that the witness was qualified to testify that the unsigned transcript was a completely accurate, word-for-word account of what was said at the interrogation. The court further stated his view that the transcript should not be introduced in evidence or read to the jury and suggested that the witness could testify to his recollection and the defendant could then cross-examine using the transcript if he desired. The defendant’s objection to the witness reading the transcript to the jury was sustained. Thereupon the defendant objected that the court was advising and counselling the circuit attorney and moved for a mistrial which was denied.

The advice or counselling complained of was not made in the presence of the jury and there is no charge that the defendant was prejudiced with the jury. Nor can it be said that the court abandoned its judicial role and became an advocate. The statement and suggestion were made during the discussion of an objection and were made for the purpose of avoiding error in the presentation of the evidence. The court was in the pursuit of its proper functions in discussing the matter out of the presence of the jury and making suggestions for proper procedure. State v. Brookshire, Mo., 353 S.W.2d 681, 688 [18]; State v. Moore, Mo., 303 S.W.2d 60, 68 [10]; State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 769 [9]. The claim of error is denied.

In an area at the rear of the hardware store, four motor vehicles were parked when the police arrived. Officer Burns testified that after the defendant’s arrest he was questioned about the automobiles. .Over defendant’s objection to the form of the question on the ground that relevancy had not been shown, the officer testified that the defendant stated that he had driven his automobile to the parking area and two of the vehicles were involved. The following then occurred:

“Q Did you make — or, did you search these vehicles at any time ? A Yes, we did.
Q And where did you search them? A At the store.
Q Would you tell the court and jury what you found in the vehicles ? A There was a black case containing a walkie talkie radio in the Ford Falcon along with some rolls of pennies. And there was a walkie talkie and various tools in the truck. There were also tools in the Ford.
“MR. BOECKER: Now, I am going to object to the receipt of this testimony in response to this question. Obviously counsel must have known that the answer would be entirely irrelevant to the issues in this case and prejudicial to this defendant. There is nothing in the charge about a walkie talkie; nothing in the evidence to support evidence of rolls of pennies in this automobile, or in the information or the opening statement, and ask the Court to declare a mistrial because of the prejudicial statement that Counsel has intentionally introduced before the jury.”

The court then called the attorneys to the bench and out of the hearing of the jury interrogated counsel for the state about the relevancy of the articles found and was informed the pennies had no connection, but it was believed that there might be an attempt to use the walkie talkie radios that night. The court indicated that it did not consider the articles relevant but also observed that defendant had delayed making his objection purposely. Then, back within the hearing of the jury, the court instructed the jury and ruled as follows: “Now, members of the jury, the Court as a matter of law rules there is absolutely no connection between anything found in the car and this case. And you are instructed to disregard, wholly disregard it, and the answer of the Officer as to what was found in the car is stricken and the jury is instructed to disregard it. Motion for a mistrial is overruled.” This concluded the testimony of Officer Burns.

On the whole record we doubt that the incident had any serious import, but certainly any possible prejudice in the minds of the jury was eliminated by the court’s forthright instruction to disregard the testimony; the court did not err in overruling the motion for a mistrial. State v. Rose, Mo., 366 S.W.2d 308, 310 [2]; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132, 140 [31, 32],

We have considered all questions presented by the defendant and find them to be without merit. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08, V.A.M.R., and find them to be in proper form and free from error.

The judgment is affirmed.

All of the Judges concur.