author: HIGGINS, Commissioner.

text:
    Everett LEAP, Respondent, v. Eileen Margaret GANGELHOFF, Appellant.
    No. 52422.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc. Denied July 10, 1967.

      Morgan Moulder, Camdenton, Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Warren S. Stafford, Springfield, for respondent.
    Tweedie Fisher, Jefferson City, for appellant.
   HIGGINS, Commissioner.

Action for damages for personal injuries in which defendant appeals from verdict and judgment for plaintiff for $18,500.

Plaintiff’s case was submitted under the humanitarian doctrine hypothesizing defendant’s alleged failure to swerve or sound a warning as negligent acts. Appellant contends that plaintiff’s case failed because he did not establish when he came into a position of imminent peril and that defendant then had the present ability with means at hand to have averted the injury to plaintiff.

This action arose from an occurrence on July 22, 1964, at a point on Missouri State Highway No. 5 approximately three miles north of Camdenton, Missouri. The highway there runs generally north and south, was generally level at the scene, and had an asphalt surface 22 feet wide divided into two lanes by a painted center line. There was a slight hill to the south of the scene from which the highway sloped downward for approximately 300 feet and then was level for the remaining 700 feet north to the scene. The 81-year-old plaintiff lived on the east side of the highway at the scene; his mailbox was located on the west side of the highway at this point. He was blind in his right eye and had limited vision in his left eye. He could see 500 feet and was in good health otherwise.

Defendant was a 51-year-old lady with 34 years of driving experience. She and her family had left Hot Springs, Arkansas, at approximately 8 a. m. on the day of the accident and she was driving a 1961 Rambler automobile north on Highway 5. The Rambler was in good condition; the day was clear and warm. She was traveling at a speed of about 40 miles per hour as she crested the hill south of the scene soon after 3 p. m., the road was clear, and she saw plaintiff “down at the bottom of the hill, as I came down the hill, I saw him at his mailbox.” When she first saw plaintiff at his mailbox: she'"was “between two and three blocks” away. She saw plaintiff turn from the mailbox and “take two steps or so onto the asphalt and stop.” She then reduced her speed to about 35 miles per hour because “I thought he was going to cross the street”; she was then a block and a half or two blocks away from plaintiff. At this point, he then “dashed” across the highway. Defendant applied her brakes and turned to the right and hit plaintiff at a point where plaintiff was at the east edge of the asphalt surface at the east shoulder. Plaintiff “slid over the right front fender, and he threw his arm back, he rolled off into the ditch” on the east side of the road. There was nothing to keep defendant from turning to the left or west and she never sounded her horn. Defendant’s Rambler came to rest with its right front in the east ditch and its left rear on the pavement; the right front was damaged. Seventy-five feet of skid marks were measured by the highway patrolman leading to defendant’s Rambler.

Plaintiff had lived at the accident scene for about 30 years. On this date he listened to the three o’clock news, went to the door of his home, and saw the mail carrier stop at his mailbox. He walked across the highway to the mailbox. “I got the mail out of the box, turned around and stepped on the blacktop. I looked to the north and I didn’t see nobody. I looked to the south, and I didn’t see nobody. I started right on back across the highway. * * * I didn’t look either way after I started across the highway. * * * I * * * just walked my normal gait until I got clear across the road.” He was off the highway, on the shoulder, when hit by defendant’s automobile. His first knowledge of defendant’s automobile “was the brakes squealing, and I turned to look in the right direction and the car was in seven or eight feet of me when I turned to look.” It was just a split second until impact. “I had no time to even think.” He told the patrolman that he didn’t see the car approaching and that he tried to get off the road after he heard it. Plaintiff sustained serious injuries which are not in question on this appeal.

Plaintiff adduced evidence on reaction time, stopping distances, average walking speed, and the distance automobiles travel at various speeds, by James Melton, an engineer whose qualifications were not questioned. He used three fourths of a second as average reaction time where no other reaction time is shown, and stated a standard or average block to be about 300 feet. He also used 2.9 feet per second to 4.5 feet per second as average walking speed, and stated that an automobile would travel 51.5 feet per second at 35 miles per hour and 59 feet per second at 40 miles per hour. In 4¾ seconds a man walking at 2.9 feet per second travels about 14 feet; at 4.5 feet per second, about 22 feet. In 4¾ seconds a car traveling 35 miles per hour travels 242 feet; at 40 miles per hour, 277 feet. He stated that defendant could have stopped her automobile within 107.4 feet at 35 miles per hour and within 132.2 feet at 40 miles per hour, these distances including the three-fourths’ second reaction time.

The first and basic fact of liability under the humanitarian doctrine is a position of imminent peril, Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484 [1]; Lane v. Wilson, Mo.App., 390 S.W.2d 943, 947 [3], now known as immediate danger. See Committee Comment, MAI 17.14. Such peril or danger must be imminent, certain, immediate, and impending, a likelihood or bare possibility of injury being insufficient, Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420; Lane v. Wilson, supra, 390 S.W.2d 1. c. 947 [4], and the burden is on plaintiff to show when and where he came into imminent peril, Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787 [1]; Yarrington v. Lininger, Mo., 327 S.W.2d 104, 109 [7], as well as to show that defendant had the ability to warn or swerve after the immediate danger existed. White v. Burkeybile, Mo., 386 S.W.2d 418; Smith v. Siedhoff, Mo., 209 S.W.2d 233.

Generally, the point of plaintiff’s position of imminent peril or immediate danger is for the jury to determine. Kuehn v. Hahn, Mo., 380 S.W.2d 445, 448 [3]; Yarrington v. Lininger, supra, 327 S.W.2d 1. c. 109 [6]; Silver v. Westlake, Mo., 248 S.W.2d 628, 632 [1, 2]. In this case there can be no doubt that plaintiff came into a position of imminent peril when he crossed the center line of the two-lane asphalt pavement, regardless of any obliviousness which would have extended his zone of peril. Berry v. McDaniel, Mo.App., 269 S.W.2d 666, 669 [2], The evidence discloses that at that time and place there was no other traffic blocking or using the road and plaintiff was in plain view of defendant at all times. There was evidence of plaintiff’s walking speed to show that it would have taken him from 2.44 seconds to 3.79 seconds to cross the eleven feet of defendant’s northbound traffic lane to reach the point in the east shoulder where he was struck by defendant. There also was evidence showing defendant’s distance from plaintiff when first seen at his mailbox and later as he proceeded across the pavement. In addition, the evidence showed stopping distances and distances defendant would travel at her stated speed of 35 miles per hour. Admittedly defendant sounded no warning. Under these circumstances, it was for the jury to say whether defendant could have swerved her car or sounded a warning in time to have averted the accident, Schmitt v. Shuplak, Mo.App., 42 S.W.2d 959, 962 [2]; Berry v. McDaniel, supra, 269 S.W.2d 1. c. 669-671 [2-10], particularly with the quick and accurate response of present-day automobiles to the driver’s touch. Kuehn v. Hahn, supra, 380 S.W.2d 1. c. 449.

This case originated in Camden County. Prior to a first trial defendant disqualified the regular trial judge, Honorable Claude E. Curtis, and Honorable Sam C. Blair sat in his place. The first trial resulted in a verdict for plaintiff which was set aside by Judge Blair. Before a second trial Judge Blair became a judge on the Kansas City Court of Appeals and Honorable James T. Riley assumed jurisdiction of the case. Defendant then asked for a change of venue and stipulated to a transfer of the case to Wright County where Honorable Garner L. Moody was the regular judge. Prior to this second-trial defendant sought to disqualify Judge Moody and he overruled the application. Appellant charges that Judge Moody erred in refusing her application to disqualify him but, as recognized by appellant, Civil Rule 51.-03(b), V.A.M.R. provides that “in no event shall more than one disqualification of judge be granted to either party.” Defendant thus exhausted her right to disqualify a judge when she disqualified Judge Curtis in Camden County. Griggs v. Miller, Mo., 374 S.W.2d 119, 121 [2],

During the direct examination of Dr. Charles Ash, defendant was granted leave to ask a preliminary question. That leave was extended to a lengthy cross-examination of Doctor Ash respecting a urinary condition claimed by plaintiff to be a result of the accident. At one point a colloquy between defendant’s lawyer and the court produced an observation by the court, “I understand that is what you got him to say just then.” Appellant charges error in that “such remark on a vital issue of fact referred to answers of plaintiff’s 'doctor sought by defendant, the effect of which prejudiced the minds of the jury” Appellant supports her charge by arguing “the question of pre-existing urinary condition to the eighty-one-year-old plaintiff was hotly in issue.” Obviously this charge and argument go only to the injuries and damages and there is no claim that the damages were excessive, the only area in which appellant says she was prejudiced by the comment.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Fred Lee CLEMMONS, Defendant-Appellant.
    No. 52317.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or to Modify Opinion or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    William R. Hirsch, Clayton, for appellant.
   WELBORN, Commissioner.

The notice of appeal in this case describes the appeal as one “from the Judgments, Verdicts and Sentencing of June 10, 1966, as later amended, in the above [four separate] causes; from order denying Motion for Adducement of Additional Testimony and Motion to Withdraw Guilty Plea in Cause 1396-M on June 10, 1966; from order overruling Motion of Defendant to Vacate and Set Aside Judgment and Sentence, Dismissal of Indictments and Retrial, Etc., entered in this action on June 20, 1966.” The question immediately arises whether or not a single appeal may properly be taken from such a multiplicity of judgments and orders.

Fred Lee Clemmons was charged, by two separate indictments filed September 29, 1964, in the St. Louis Circuit Court, with stealing over $50.00 by means of deceit. On March 23, 1965, a third indictment was filed, charging Clemmons with “obtaining money by false pretenses” and on October 20, 1965, a fourth indictment was filed, charging him with stealing an automobile. All charges apparently arose from Clemmons’ operation of a used car business.

Clemmons was arraigned on the first two indictments numbered 1396-M and 1397-M and pleaded not guilty. On April 27, 1965, he appeared, accompanied by his attorney, and withdrew his plea of not guilty in No. 1396-M and entered a plea of guilty. Sentencing was deferred until June 14, 1965, and a “pre-sentence investigation ordered.” From the remarks of the trial judge at subsequent proceedings recorded in the transcript here, it appears that the court was attempting to allow the defendant to make restitution. Sentencing was further deferred and had not been imposed when the fourth indictment was filed in October, 1965.

On October 14, 1965, cases numbered 1397-M and 565-N (the third indictment) were set for “jury waived trial” on October 19, 1965, “as per memo filed, signed by James E. Darst, Assistant Circuit Attorney, and Morris M. Hatchett, attorney for the defendant.”

After a further continuance, cases numbered 1397-M, 565-N and 2097-N (the fourth indictment) were heard on November 5, 1965, as “jury waived trials.” On November 12, 1965, the trial judge entered findings of guilt in all three cases and indicated that a sentence of three years’ imprisonment would be imposed in each case. The transcript on appeal shows that sentencing in the three cases was set for December 3, 1965. However, there were apparently continued moves to enable defendant to make restitution and the next entry, as shown by the transcript here, was June 10, 1966. At that time, Morris M. Hatchett withdrew as attorney for defendant and William Hirsch entered his appearance in such capacity and filed, on behalf of the defendant, a “MOTION OF DEFENDANT FOR ADDUCEMENT OF ADDITIONAL TESTIMONY, PRESENTATION OF FURTHER EVIDENCE, OR, ALTERNATIVELY, FOR TRIAL OF THE WITHIN CAUSES BY JURY.” Also filed on behalf of defendant was a “MOTION TO EXTEND OR ENLARGE TIME FOR FILING NEW TRIAL MOTION.” Both motions were overruled and the court proceeded to sentence the defendant in all four cases.

In Number 1396-M, in which the guilty plea had previously been made, the sentence imposed was three years. Upon the judge’s announcement of the sentence, defendant’s attorney stated that the defendant decided to withdraw the plea, but the court refused to permit him to do so. Three-year sentences were imposed in each of the other three cases, to run consecutively.

On June 16, 1966, a motion was filed on behalf of defendant, captioned: “MOTION OF DEFENDANT TO VACATE AND SET ASIDE JUDGMENT AND SENTENCE, FOR DISMISSAL OF INDICTMENT,. RE-TRIAL AND OTHER RELIEF.”

The motion attacked the findings of guilt in the three court-tried cases on the grounds that the defendant was not present when the court, on November 12, 1965, made its memoranda findings of guilt; that the waiver of jury trial did not comply with Criminal Rule 26.01(b), V.A.M.R.; that the court failed to make findings of fact and declarations of law, required by Criminal Rule 26.01(c), V.A.M.R.; that sentencing was unreasonably delayed; that the court’s findings were not entered on the court minutes. The motion also attacked the court’s refusal to permit withdrawal of the plea of guilty in Cause No. 1396-M, the sufficiency of the indictment in each of the three other cases, on various, separate grounds, and, finally, the court’s refusal to permit additional testimony to be adduced pertaining to the appellant’s guilt.

A hearing on the motion was held on June 17, 1966. Appellant was removed to the penitentiary early on that morning and was not present at the hearing. Some testimony was presented regarding the content and availability of the court records. The court refused to permit the appellant’s wife to testify to matters going to the guilt of the appellant. On June 20, 1966, the appellant’s motion was overruled and this appeal followed.

In his brief here, appellant attacks the sufficiency of the indictment in all four cases; the sufficiency of the appellant’s waiver of right to jury trial in the three court-tried cases; the lack of findings of fact and declarations of law in such cases; the absence of the appellant upon the entry of the court’s memoranda; the unreasonable delay in imposing sentence; alleged changes in sentencing by an amendment of the court’s June 10th sentence; the absence of an effective right of allocution at the June 10th sentencing; the refusal of the request for withdrawal of the guilty plea. The brief also attacks the denial of the right of the appellant to be present at the “evidentiary hearing held pursuant to 27.26 motion.” Finally, appellant contends that “[tjotality of procedural errors and violations of Court Rules affecting substantial rights of incarcerated defendant, compels remand for re-newed entry of verdicts, sentencing and allocution, as well as hearing of such new trial motions as may be filed, so that the substance of evidence adduced can be examined and determination made of proof established to support sentence.”

The state has not questioned the efficacy of the appellant’s notice of appeal. However, since an adequate notice of appeal is a prerequisite to our exercise of jurisdiction, we examine the matter sua sponte.

“[A]s a general rule, separate and distinct judgments of conviction cannot be brought up for appellate review by one writ of error, and the same rule applies with respect to appellate review by one appeal. * * *

“It is improper to combine in one appeal proceedings to review denial of motion to dismiss several indictments against the same person, where no order for consolidation has been made. Also, accused is not entitled to consolidate an appeal from a judgment of conviction and an appeal from a denial of a petition for a writ of error coram nobis. It has been held that accused may not in one bill of exceptions bring up for review by writ of error a ruling denying accused’s single motion to withdraw pleas of guilty to several separate charges, and that a writ of error will not lie to review a judgment overruling a single motion for a new trial and to set aside verdicts and judgments of conviction on separate indictments for separate offenses against the same person.” 24 C.J.S. Criminal Law § 1635, pp. 974-975.

“The right of a defendant in a criminal action, tried at the same time on separate charges or indictments, to review several convictions on a single appeal has been uniformly denied by the courts.” Ann. “Right to appellate review, on single appellate proceeding, of separate actions consolidated for trial together in lower court.” 36 A.L.R.2d 823, § 10 [a], 839-840.

Here the appellant would combine in this single proceeding direct appeals from four separate judgments (none of which appear in the transcript, only the oral sentencing being shown). Appellant also would apparently consider his post-sentencing motions as motions under Criminal Rule 27.26, V.A.M.R., and combine also the denial of relief under that rule with his direct appeals. In our opinion, such procedure finds no basis in the rules providing appellate review and the general rules, above enunciated, apply and require the dismissal of this appeal.

Appeal dismissed.

HOUSER and HIGGINS, CC., concurs.

PER CURIAM:

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Wendell WILLIAMS, Appellant.
    No. 52131.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Raymond Peltzman, Special Asst. Atty. Gen., Kansas City, for respondent.
    J. Whitfield Moody, J. Arnot Hill, The Legal Aid & Defender Society, Kansas City, for defendant-appellant.
   STOCKARD, Commissioner.

Defendant was found guilty by a jury of burglary in the second degree and he has appealed from the ensuing judgment.

A jury reasonably could find from the evidence that on April 9, 1965, defendant broke open the desk in the office of the S. Patti Construction Company at 1340 Admiral Street, Kansas City, Missouri, and took therefrom a pad of printed company checks. However, he was charged with burglary, second degree, and not with stealing, and an essential element of the offense charged is that there was a “breaking and entering” of the building by defendant. § 560.070 RSMo 1959, V.A.M.S.; State v. Whitaker, Mo., 275 S.W.2d 316; State v. Ewing, Mo., 298 S.W.2d 439. Mr. Patti, general manager of the S. Patti Construction Company, testified that on April 9, 1965, he was on the premises of the company at 1340 Admiral Boulevard and left them about five o’clock in the evening, and that at that time the building “was in good shape.” He did not testify that all the windows and doors of the building were closed or locked, and he did not testify that the “window in the basement area” was closed or locked, or that when he left at five o’clock that it had not been forced and entered. He did state that he had not “given permission” for anyone to “break” into the building. He also said that he did not know “who it was if anybody,” who broke into the building. After Mr. Patti testified that the windows in the office were closed and had not been damaged, the following occurred:

“Q. [By the assistant prosecuting attorney] What about the rest of your building, Mr. Patti?
“A. The window in the basement area had been forced and entered into.
“Q. Did you observe this window yourself ?
“A. No, I did not.
“Q. Did you examine it following this time?
“A. No, I didn’t.
“Q. So you were simply told that that window was pried open?
“A. Yes, sir.
“Mr. Kirwin: [defense counsel] Of course, we object to any statement as being hearsay.
“The Court: Sustained.”

Mr. Patti then testified that he had not ascertained “whether or not any other part” of the building had been broken into.

Defendant had no reason to object to the question pertaining to the “rest of your building.” Also, at the time the answer to that question was made he had no reason to object to it because it did not in any way indicate that the witness was not testifying from personal knowledge. However, the next three questions and answers clearly revealed that the witness was not testifying from personal knowledge, but that his answer that the window in the basement area had been forced and entered was based solely on hearsay. Defendant then objected “to any statement as being hearsay,” and the court sustained the objection. Admittedly, in view of the fact that the objectionable answer had been made, good trial practice called for a motion to strike out the answer with a more complete statement of the reason therefor than was made. State v. Battles, 357 Mo. 1223, 212 S.W.2d 753; State v. Tyler, Mo., 306 S.W.2d 452. However, it cannot be said that the trial court was not reasonably well informed to what defendant objected and the reason therefor. Generally an objection, as that term is used, is directed to a question, and a motion to strike is directed to an answer, but both are objections; one to the question, the other to the answer. It would be technical beyond justification to say that an “objection” to an answer on the ground that it was hearsay was not in fact a request to have the answer excluded from the consideration of the jury.

In Waddell v. Metropolitan St. Ry., 113 Mo.App. 680, 88 S.W. 765, an improper and unresponsive answer was given to a question, and an objection, without a motion to strike, was made to the answer. The court pointed out that the “usual practice in calling the attention of the court to unresponsive and improper statements contained in the answer of the witness is by motion to strike out such matter”, and improper statements of witnesses must be pointed out to the court and objected to or the right to complain is waived. But, the court continued, “where it appears that objectionable statements in the answer of the witness have been made a subject of timely and specific complaint, the function of a motion to strike out is accomplished, and its purpose subserved. Such motion is but a form of objection, and is not devoid of legal equivalents.” We think this is and should be the correct rule. There should be no particular magic in the use of certain words. The question is whether there was a timely and sufficient communication to the trial court that a complaint was being made to the answer with a sufficient statement of the reason for the complaint. Compare State v. Penn, Mo., 413 S.W.2d 281. We distinguish this situation from that where the question is answered before the objection is made, and when made the objection is specifically directed to the question only and not the answer. See Russell v. Union Electric Co. of Mo., 238 Mo.App. 1074, 191 S.W.2d 278, and Radler v. St. Louis-San Francisco Ry. Co., 330 Mo. 968, 51 S.W.2d 1011.

Steeley v. Kurn, 348 Mo. 1142, 157 S.W.2d 212, contains language seemingly contrary to the above result. There, in a case under the Federal Employers’ Liability Act, the defendant objected to certain “testimony” (according to the reported opinion) of plaintiff and the court sustained the objection. The defendant did not move to strike the answer, and it was stated, apparently by way of dictum, that “In this situation the answer was evidence for the consideration of the jury.” The Waddell case was not mentioned, and cited in support of the above quoted statement was the Radler case, supra, and Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001. In the Radler case the witness had testified with no objection that plaintiff was intoxicated. Then another question was asked which called for a self-serving answer and which was based on hearsay. An objection to this question was sustained. The court ruled that the previous answer that plaintiff was intoxicated was not stricken out by the ruling of the court in sustaining an objection to a subsequent question. In the Boyd case an objection to the question was made and sustained after answer with no motion to strike the answer. It cannot be determined with certainty from the Steeley opinion to what the objection was directed, but in view of the cases cited we distinguish that case on the ground that there was not adequate communication to the trial court that the objection was to the answer.

Our conclusion, as it affects this case, is that the trial court properly sustained an objection, timely under the circumstances, to the hearsay answer of the witness that the window in the basement area had been “forced and entered,” and whether or not the words usually employed in a motion to strike an objectionable answer were used, the trial court intended to and did rule, and properly so, that the hearsay testimony was not to be considered by the jury. Under these circumstances there is no competent evidence in the case from which a jury reasonably could find one of the essential elements of the offense of which defendant was charged.

Although defendant did not move for a judgment of acquittal pursuant to Criminal Rule 26.10, V.A.M.R., and did not specifically assign in his motion for new trial the insufficiency of the evidence to sustain the conviction, the imprisonment of an accused for the commission of a crime not sustained by competent evidence as a matter of law constitutes plain error affecting substantial rights within the meaning of Criminal Rule 27.20(c), V.A.M.R.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HOLMAN, Presiding Judge. SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Virgil Lewis TURLEY, alias Glen H. Tracy, Appellant.
    No. 52206.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or for Transfer to Court en Banc Denied July 10,1967.
    Norman H. Anderson, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, for respondent.
    Virgil L. Turley, pro se.
   HOLMAN, Presiding Judge.

This appeal is from an order overruling defendant’s motion (filed under S.Ct. Rule 27.26, V.A.M.R.) to vacate judgments and sentences theretofore imposed upon defendant. The judgments involved were entered on June 14, 1965, when defendant, after appointment of counsel, entered a plea of guilty to charges of burglary and stealing. He was sentenced to imprisonment for four years for the burglary and three years on the charge of stealing, the sentences to run consecutively.

The motion alleged that the judgments should be vacated for the following reason:

“1. On or about the 11th day of June, 1965, a preliminary hearing was conducted in the Magistrate Court of Jasper County without the movant being accorded the benefit of legal counsel after movant had repeatedly advised the court of his inability to secure counsel and of his desire for the court to appoint legal counsel to represent him and of his ignorance of law, legal terms and court proceedings and because of his ignorance could not question or defend himself against the State’s witnesses with any competence, efficiency or proficiency whatsoever.

“2. The denial of counsel to movant at the critical stage of the proceedings held against him rendered the subsequent judgment and sentence unlawful and contrary to the law and Constitution of the State of Missouri and violative of the Constitution of the United States.”

We rule that the trial court acted properly in overruling the motion as the allegations therein were not sufficient to warrant the vacation of the judgments. In State v. Turner, Mo.Sup., 353 S.W.2d 602, 604, we stated that “[a] preliminary examination is not a trial of the accused for the offense alleged in the complaint but merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender so that he may be bound over and formally charged and tried in the circuit court or discharged if probable cause is not found. A preliminary hearing is designed to prevent possible abuse of power by the prosecution and at the same time permit the arrest and detention of an accused in a proper case. Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination.” To like effect, see also State v. McClain, Mo.Sup., 404 S.W.2d 186; State v. Engberg, Mo.Sup., 391 S.W.2d 868; State v. Phelps, Mo.Sup., 384 S.W.2d 616; State v. Gagallarritti, Mo.Sup., 377 S.W.2d 298; State v. Worley, Mo.Sup., 383 S.W.2d 529, and State v. McMillian, Mo.Sup., 383 S.W.2d 721. A case very similar to the one at bar is State v. Small, Mo.Sup., 386 S.W.2d 379. We held therein that the magistrate was not required to appoint counsel for the accused at the preliminary and, in any event, any defect in connection with the preliminary hearing was waived when a plea of guilty was entered by the defendant in the circuit court after being accorded the right of consultation with counsel.

In his brief defendant says he was prejudiced by his failure to have counsel at the preliminary because he was thus denied the right to have counsel to cross-examine ' the State’s witnesses and to present witnesses in his favor. That is just another way of stating his contention that he was entitled to have counsel provided at his preliminary hearing. What we have heretofore said will indicate our view that there is no merit in that contention.

Defendant has cited the cases of Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. Pointer did not decide the question as to the necessity of appointing counsel for indigent defendants at a preliminary hearing, the court saying that “In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of Gideon v. Wainwright, supra [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799].” 380 U.S. 402, 85 S.Ct. 1067. White has no application here because in that case the court reversed a conviction based in part upon evidence that the defendant pleaded guilty to the crime at a preliminary hearing where he was without counsel.

The judgment is affirmed.

HENLEY, J., concurs.

SEILER, J., concurs in result and dissents in part in separate opinion filed.

Concurring Opinion

SEILER, Judge.

I concur with the opinion of Judge Holman affirming the judgment, because, as stated in the cited case, State v. Small (Mo.Sup.) 386 S.W.2d 379, “[a]ny defect in connection with the preliminary hearing was waived when a plea of guilty was entered by the defendant [in the circuit court] after being accorded the right of consultation with counsel.”

However, I respectfully state I am unable to concur with that portion of the opinion which holds there is no merit in defendant’s contention that under the allegations stated in the motion he was entitled to have counsel provided at his preliminary hearing on felony charges. Missouri Rules of Criminal Procedure, 23.03, provide “The magistrate before whom an accused is brought shall advise the accused of the charge against him * * *. The accused shall be allowed a reasonable time to advise with his counsel and shall be permitted to send for counsel if he so desires. * * * The accused may cross-examine witnesses, against him * Lambus v. Kaiser, banc, 352 Mo. 122, 176 S.W.2d 494, decided in 1943, was an application for habeas corpus where the defendant, without counsel, had waived preliminary examination. Thereafter, in circuit court, defendant being unable to employ counsel, the court appointed counsel. Several days later, after consultation, defendant appeared with counsel, pleaded guilty, and the court assessed the death penalty. The application for the writ was on the theory that the circuit court was without jurisdiction because Lambus, being without counsel, did not exercise an intelligent choice in waiving his preliminary examination. This was ruled against petitioner and the writ was quashed, but the court stated as follows with regard to right to counsel at a preliminary examination, 176 S.W.2d 1. c. 495, 497:

“ * * * Under either of these provisions [the court was referring to the Sixth Amendment and what is now Article I, Section 18(a) of the 1945 Constitution] there can be no doubt but that an accused at a preliminary examination is entitled to be represented by counsel if he wishes and opportunity of counsel must not be denied him.”

«⅜ * *

“* * * If he had had counsel at the time, by statute the magistrate would have been required to call them if requested * * * Í9

The court specifically pointed out that the petitioner did not request the appointment of counsel at the preliminary or complain of absence of counsel at the time, 176 S.W.2d 1. c. 497. In the present case defendant’s motion alleges that he informed the magistrate he was unable to employ counsel and asked the court to appoint counsel, that he was ignorant of the law and court proceedings and unable to question the state’s witnesses with any degree of competence. If a request so couched were actually made by defendant, it was definite, stated a good reason from defendant’s standpoint and could not be taken as merely an idle or theoretical request on his part. As matters stood at that particular time, then, it seems quite clear that if defendant had been able to afford counsel he would have hired counsel to represent him at the preliminary hearing. It is equally clear that if he could pay for counsel he could not have been denied the right to have counsel at the preliminary hearing. He did not get counsel because he could not pay for it, not because he did not ask for°it or because there is not a right to counsel at the preliminary. This appears to be an unwarranted discrimination against the indigent.

The problem under consideration is the subject of an article by Professor Hunvald, entitled “The Right' to Counsel at the Preliminary Hearing”, 31 Mo.L.Review 109. Professor Hunvald states at 31 Mo.L.Review 1. c. 123-124:

“ * * * The state cannot grant this advantage to some and deny it to others because they cannot pay for it.

“ * * * But once having granted an accused the opportunity to have the validity of his detention to answer criminal charges determined by an independent judicial officer, this opportunity must be given on an equal basis. Even if it is possible to have a ‘fair’ hearing on this question without allowing the accused the assistance of counsel, once the state has allowed this assistance, it ought not be able to deny this assistance on account of poverty.”

As Professor Hunvald points out, in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the United States Supreme Court ruled “that a state could not deny an appellate review because the appellant was indigent and could not afford to pay for a transcript, while allowing appeals to those who could afford this expense” and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, stands for the proposition that “If the state grants a right to appeal and the right to be represented by counsel on that appeal, these rights cannot be denied because the appellant cannot afford to pay for them,” the court saying (372 U.S. 1. c. 355, 83 S.Ct. 1. c. 816) the evil was: “ * * * discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys ‘depends on the amount of money he has.’ ” And the same has been held with respect to counsel in felony cases in the trial court in Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Also, as said by Professor Hunvald, there has been in these cases “no requirement laid down of prejudice resulting from the denial of counsel.”

Professor Hunvald, in the above article, covers the benefits to a defendant from a preliminary hearing, saying as follows (31 Mo.L.Review 1. c. 117-121):

“ * * * It is supposed to be a device for sifting out unwarranted felony prosecutions at as early a time as possible. By requiring the prosecution to establish a basis for going to trial, and discharging those accused as to whom this basis cannot be established, those accused who are the victims of unfounded complaints can avoid the expense and embarrassment of a trial. Even more important to an indigent is the danger of being confined in jail to insure his presence for a trial that ought not even be held. The magistrate is supposed to determine whether there is sufficient evidence to warrant ‘binding over’ the accused to answer a felony charge in the circuit court. If the evidence is insufficient, the accused is to be discharged. If there is sufficient evidence, in addition to binding over, the magistrate also has the obligation to set bail if the offense is bailable.

* * *

“ * * * The procedure of offering evidence, of examining and cross-examining witnesses, is similar to that followed at a trial. It is a judicial proceeding in which the state is represented by counsel. It is foolish to think that a layman can adequately exercise his options of cross-examination and presenting evidence without the assistance of counsel. He does not have the training necessary to conduct an effective cross-examination; he does not have the legal qualifications to be able to effectively present evidence in his behalf or to know what evidence he ought to present. He probably does not understand the limited nature of the issue to be decided — it is not his guilt or innocence but simply whether there is sufficient evidence to warrant further proceedings.

* * *

“ * * * If defense counsel is present at the preliminary hearing he may be able to acquire information from the evidence offered by the prosecution that will result in the defense counsel being better able to prepare for trial. If the accused alone is present he hears all the evidence presented but he is not able to understand and appreciate the legal significance and possible trial uses of it. The lawyer is.

“By cross-examining witnesses under oath, an attorney may be able to ‘discover’ much information that otherwise might be difficult to obtain. With the limited amount of discovery allowed in criminal cases, this can be an important consideration. It is certainly a factor that should be considered in deciding whether or not to waive the hearing. It is true that depositions can be taken by a defendant in a criminal case, but when the defendant is indigent the opportunity to take depositions is greatly limited, for he has no funds to pay for them and a recent decision holds that the state is under no obligation to advance the money necessary for them. For an indigent, the preliminary hearing may be the only effective means of discovery.”

Many lawyers will agree with the above evaluation, and some of our magistrate judges are appointing counsel for indigent defendants in felony cases.

Therefore, it seems to me that if the defendant who can pay for counsel at the preliminary hearing on a felony charge is entitled to counsel as a matter of right, as is true, then the indigent defendant under circumstances set forth in the present motion, is entitled to appointed counsel at the preliminary hearing. As said in Gideon v. Wainwright, supra, 372 U.S. 1. c. 344, 83 S.Ct. 1. c. 796:

“ * * * That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of widespread belief that lawyers in criminal courts are necessities, not luxuries. * *

      . In none of the cases cited in the main opinion, or in what seems to be the latest reported case on the subject, State v. Smith (Mo.Sup.) 411 S.W.2d 208, does it appear the defendant requested counsel at the preliminary hearing. In many of the cases cited defendant waived the preliminary hearing.

      . There are instances where differences in what can and cannot be done based on ability to pay the cost must necessarily exist in criminal practice and procedure, State v. Aubuchon (Mo.Sup.) 381 S.W.2d 807, but the present point involves right to counsel.

      . As the writer knows from personal experience in 1966.


text:
    STATE of Missouri, Respondent, v. Donald Gene DURHAM, Appellant.
    No. 52213.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Gerald L. Birnbaum, Asst. Atty. Gen., Jefferson City, for respondent.
    Donald Gene Durham, pro se.
   STOCKARD, Commissioner.

Defendant has appealed from the order of the Circuit Court of Phelps County denying his motion, without an evidentiary hearing, filed pursuant to Criminal Rule 27.26, V.A.M.R.

Defendant was charged under the habitual criminal act and was found guilty by a jury of burglary and stealing. He was sentenced by the court to a term of eight years for the burglary and four years for the stealing, the terms to run consecutively. Upon appeal the judgment was affirmed. State v. Durham, Mo., 367 S.W.2d 619, certiorari denied 375 U.S. 861, 84 S.Ct. 130, 11 L.Ed.2d 89. A previous motion pursuant to Criminal Rule 27.26 was ruled adversely to defendant, and on appeal that ruling was affirmed. State v. Durham, Mo., 386 S.W.2d 360, certiorari denied 382 U.S. 857, 86 S.Ct. 110, 15 L.Ed.2d 94. Two reported opinions in the federal courts also pertain to a collateral attack by defendant against the validity of the judgment. Durham v. Haynes, D.C., 258 F.Supp. 452 (wherein reference is made to another pro-, ceeding in the federal district court attacking the judgment), and Durham v. Haynes, 8 Cir., 368 F.2d 989.

In his brief to this court and in his pro se oral argument defendant asserted that his constitutional rights had been violated in that he was not represented by counsel in this court on his direct appeal. In State v. Schaffer, Mo., 383 S.W.2d 698, and in State v. Moore, Mo., (Case No. 52, 101), this court has ruled that it is not authorized to consider that contention in a proceeding under Criminal Rule 27.26, even when included in the motion. As stated in the Schaffer case, if defendant desires a ruling on the issue of whether he was entitled to counsel on his direct appeal to this court, he should present that issue by an appropriate proceeding instituted in this court.

The first contention in defendant’s motion is quite lengthy, and it consists primarily of a narrative statement of the circumstances surrounding his unsuccessful attempt to obtain counsel to represent him at his preliminary hearing. The substance of defendant’s contentions is that he was “refused * * * the right to obtain the aid of counsel, or the ample time to obtain counsel” at his preliminary hearing because the magistrate court refused to grant a continuance. He then relates that the magistrate judge knew that he had been held “incommunicado in ‘the hole’ of the Rolla City Jail,” and that he “repeatedly requested” the “police and the sheriff” to be allowed to call “relatives and friends” in St. Louis “to obtain aid to hire counsel to defend petitioner at the preliminary ex-animation” but this request was refused. Defendant also states that on April 8, 1962, the chief of police agreed to and did call the law firm of White & White in Rolla, and that later Mr. Jay White came to see him and discussed “the possible handling of this petitioner’s defense.” According to defendant’s motion, Mr. White told defendant to request a continuance of his preliminary hearing, and that defendant “should then contact St. Louis to obtain aid to hire Mr. White for defense during the coming preliminary hearing,” and that if the court refused to grant a continuance to tell the judge “I told you to request it, and that I am going to defend you.” The next morning defendant informed the magistrate court what Mr. White had told him, and after the prosecuting attorney at the judge’s request called Mr. White by telephone, he reported back to the court that “Jay [is] not their lawyer,” and the court denied the request for a continuance. Defendant asserts that by reason of the above incidents his “federal and state constitutional rights have been violated” and for these reasons “this cause should be remanded for new proceedings to include a preliminary [hearing] with the right being afforded [defendant] to obtain counsel and to defend his interest.”

Defendant does not contend that at the time of his preliminary hearing he had retained counsel who was not permitted to attend. Neither does he contend that as an indigent he requested the appointment of counsel and was refused. His contention is that the magistrate court refused to grant a continuance of his preliminary hearing so that he could call relatives and friends in St. Louis to obtain financial aid to employ counsel at the preliminary hearing. We note that he does not allege that financial aid would have been forthcoming, and at the trial of his case in the circuit court defendant was represented by counsel appointed by the trial court on the basis that he was an indigent. Defendant was not automatically entitled to a continuance by virtue of his request, particularly when the allegations of his motion establish that the reason stated to the magistrate for the request, that Mr. Jay White was his lawyer and he needed time to obtain money to pay him, was not correct. The granting of the continuance was a matter within the sound discretion of the magistrate, and if that discretion was abused it was subject to review in the trial court and subsequently on appeal, but not in a collateral attack on the validity of the judgment of conviction. No such contention was presented by defendant on his direct appeal to this court, and a proceeding under Criminal Rule 27.26 is not to function as an appeal, State v. Hagedorn, Mo., 305 S.W.2d 700, nor afford a second appellate review. State v. Worley, Mo., 371 S.W.2d 221. The basic issue, therefore, and the one which appears to be urged by defendant in his argument, is whether constitutional requirements prohibited the magistrate court from proceeding with the preliminary hearing without defendant being represented by either retained or appointed counsel.

This issue has been before this court on several previous occasions. In State v. Turner, Mo., 353 S.W.2d 602, this court pointed out that in Missouri a preliminary hearing is not a trial of the accused for the offense alleged in the complaint, but that it is merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender. If probable cause is found by the magistrate the accused may be bound over, formally charged, and then tried in the circuit court on the issue of his guilt. If probable cause is not found the accused is discharged. It was held in the Turner case that neither the federal or the state constitution nor any applicable statute requires the magistrate court to appoint counsel for the accused at a preliminary hearing. See also State v. Gagallarritti, Mo., 377 S.W.2d 298; State v. Small, Mo., 386 S.W.2d 379; State v. Phelps, Mo., 384 S.W.2d 616; State v. Engberg, Mo., 391 S.W.2d 868; State v. Turley, Mo., 416 S.W.2d 75. Defendant entered no plea of guilty. He made no statement and took no position at the preliminary hearing which was subsequently used against him or to his disadvantage in his trial before a jury on the issue of his guilt. Nothing occurred except an official determination by the magistrate that there was probable cause to charge defendant formally. Defendant does not attempt to allege any occurrence in connection with his preliminary hearing which resulted to his prejudice. We overrule his first contention.

In the statement of defendant’s second contention he alleges that his court appointed counsel, Mr. Zane H. White, filed in the circuit court a “motion to remand for preliminary hearing,” and that he had told his counsel he wanted to be present at the hearing on the motion and testify and present the testimony of others. Defendant alleges that the hearing on the motion was held on May 7, 1962, at which time he was in the Cole County jail for “housing,” and that the record entry that he was in “open court at the time of the hearing” is false. Because of this defendant asserts that he is entitled to have “the cause vacated, or remanded for a new set of proceedings to include a legal preliminary hearing.”

Defendant makes no allegations concerning the substance of the testimony he now says he desired to present at the hearing on the motion to remand, which, if true, would have demonstrated that he would have been entitled to a remand of the case for a second preliminary hearing. Therefore, accepting as true his allegation that he was not present at the hearing on the motion to remand, the sole issue is whether the subsequent conviction by the jury must now be set aside for that reason.

Article I, § 18, Constitution of Missouri, V.A.M.S., provides that “the accused shall have the right to appear and defend, in person and by counsel,” and it is provided by § 546.030 RSMo 1959, V.A.M.S., that “No person indicted for a felony can be tried unless he be personally present, during the trial”. However, it is the general rule that “The trial does not embrace every procedural and administrative step and judicial examination of every issue of fact and law during the trial, and accused’s presence is not necessary during proceedings which are no part of the trial, such as preliminary or formal proceedings or motions which do not affect his guilt or innocence, * * 23 C.J.S. Criminal Law § 974. In State ex rel. Bradford v. Dinwiddie, 361 Mo. 940, 237 S.W.2d 179, this court said: “ ‘Trial’ (in the sense of requiring the presence of defendant) under the foregoing statute [§ 546.030], has been held not to embrace such matters as ruling on a defendant’s application for a continuance, State v. Hall, 189 Mo. 262, 87 S.W. 1181; his motion for a new trial, State v. Stacker, 352 Mo. 1056, 180 S.W.2d 719; or his motion to quash the information, State v. Neal, 350 Mo. 1002, 169 S.W.2d 686.” The court then ruled that holding a hearing on a motion filed by the state in a criminal case to disqualify court appointed counsel for defendant on the ground that he was a deputy sheriff of the county, and the ruling thereon, “was no part of the trial, and, under the circumstances, [the accused’s] presence was not required.” We conclude that the hearing and subsequent ruling on the motion to remand for preliminary hearing, which was filed and presented by defendant’s counsel, was not a part of the trial, as that term is used in § 546.030,' and defendant’s absence, if in fact he was absent, did not constitute a violation of any constitutional right to appear and defend in person. There was no request by defendant’s counsel that defendant be brought from confinement to the courtroom or that the hearing on the motion be postponed until defendant could be present. Whether this was the result of strategy or a mistake of judgment is immaterial. State v. Worley, Mo., 371 S.W.2d 221, 223. Defendant’s hindsight criticism of his counsel affords no basis in this proceeding to grant the requested relief.

Defendant’s third contention is that his “federal constitutional rights and state constitutional rights were violated” during the trial when police officers “were allowed to run through the courtroom shouting ‘Willis has escaped, Durham’s partner is escaping,’ ” some of whom “were waving drawn guns.” Defendant asserts that this incident in the presence and hearing of the jury “did so prejudice the jury that this petitioner was denied due process of law and equal protection of the law,” and he was deprived of a “fair and impartial trial.” This issue was presented in the direct appeal by defendant. The incident occurred during the oral argument by defendant’s counsel. As pointed out in the opinion (367 S.W.2d l.c. 624), there was no request for a mistrial, and there was no request whatever for any remedial action on the part of the court. In defendant’s motion for new trial this incident was asserted as error, and a hearing was held on the motion at which defendant testified and related what occurred substantially as alleged in the pending motion. On the direct appeal we ruled on the merits of defendant’s contention and held that no prejudicial error occurred. This court has repeatedly held that a motion under Criminal Rule 27.26 may not be used as a substitute for a motion for a new trial, State v. Cerny, Mo., 286 S.W.2d 804, and as stated earlier it may not function as an appeal or afford a second review of alleged trial errors. There is no merit to this contention.

The last contention of defendant is that his “federal constitutional rights are being violated” because the judgment of the trial court was that the four-year sentence for stealing should run “consecutive with” the eight-year sentence for burglary, and that the judgment “does recite an ambiguous, indefinite, and equivocal directive as to the calculation of how the second sentence of four years is to run.” Defendant cites United States ex rel. Chasteen v. Denemark, 7 Cir., 138 F.2d 289. From our reading of that opinion we doubt that it supports defendant’s contention as to the use of the word “with” following “consecutive.” The deficiency there was that the previous sentence which the second sentence was to follow was not sufficiently identified. But, assuming the language has reference to the use of the term “consecutive with,” the opinion is not followed in the federal courts. In Hiatt v. Ellis, 5 Cir., 192 F.2d 119, after considering United States ex rel. Chasteen v. Denemark, the court had this to say:

“The word ‘consecutive’ used in the sentence, according to its primary dictionary definition, denotes ‘following in a train, succeeding one another in a regular order.’ The word ‘with’ which follows it in the sentence denotes primarily ‘a relation of contact or association’. The idea put forward by the petitioner and adopted by the court, that the use of ‘with’ instead of ‘to’ makes the order ambiguous and renders it ineffective will not do.
“It would be difficult to choose two words better able than the words employed here to put in brief compass the idea of cumulative service, the service of one sentence following in the train of, succeeding, the other sentence referred to.”

Fulton v. United States, 5 Cir., 250 F.2d 281; Toyer v. United States, 8 Cir., 291 F.2d 925; and Young v. United States, 8 Cir., 274 F.2d 698, aff’d 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853, all follow the construction in Hiatt v. Ellis. As stated in the Fulton case, “ ‘Consecutive with’ may be infelicitous. It may offend purists in the art of using prepositions idiomatically. But it is not a riddle. It is not illogical. It is not uncertain. It is not ungrammatical.” This court recently considered this same contention as now asserted by defendant, and ruled that the words, “consecutive with” clearly revealed the intent of the court to impose cumulative sentences to be served be served consectively and not concurrently. See State v. Jenkins, Mo., 411 S.W.2d 441. We adhere to that view.

The judgment of the trial court is affirmed.

BARRETT and PRITCHARD, CC, concur.

.PER CURIAM:

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

All of the Judges concur.


text:
    Robert L. SMITH, Plaintiff-Appellant, v. WABASH RAILROAD COMPANY, a Corporation, Defendant-Respondent.
    No. 52041.
    Supreme Court of Missouri, En Banc.
    July 10, 1967.
    Rehearing Denied July 10, 1967.

      Lyman Field, Rogers, Field & Gentry, Kansas City, Conn Withers, Liberty, for appellant.
    James H. Ottman, Donald K. Hoel, Robert K. Waldo, Kansas City, of counsel, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

This is an action based on the res ipsa loquitur doctrine. The plaintiff, Robert L. Smith, filed a petition in the Circuit Court of Jackson County, Missouri, at Kansas City, alleging that on January 2, 1962, he was foreman of a grain inspection crew and while in the process of obtaining samples of grain from railroad cars located on defendant Wabash Railroad’s tracks in North Kansas City, Clay County, Missouri, a door of a boxcar fell, striking and seriously injuring him. Plaintiff prayed for damages in the sum of $150,000. Defendant Wabash Railroad Company filed an answer consisting of a general denial and it affirmatively pleaded contributory negligence.

A trial resulted in a jury verdict for the defendant. Plaintiff’s motion for a new trial was overruled and an appeal was taken from the judgment entered in accordance with the verdict.

We shall hereinafter refer to the parties as they were in the court below.

In his brief, plaintiff says that the trial court erred in excluding evidence offered by plaintiff, abused his discretion in restricting plaintiff’s counsel in his argument to the jury, abused his discretion in limiting the voir dire examination of jurors, erred in refusing to give an instruction requested by plaintiff, and erred in giving an instruction requested by the defendant.

The car from which the door fell was a Great Northern Railroad boxcar No. 10,175. It was loaded with corn at Emerson, Nebraska. The defendant Wabash received the car from the Chicago and Northwestern Railroad Company on December 24, 1961, at Council Bluffs, Iowa, where it was inspected by the Wabash. It was transported to Kansas City, Missouri, where it was placed on track 14 with a number of other cars also loaded with grain.

The evidence was .that plaintiff Smith and his crew, employees of the Missouri State Grain Inspection Department, would begin their work at daybreak and continue until samples of grain were taken from all shipments of grain located in the railroad yards. The duty of one member of the crew was to break the seal and open the door of the cars; another would take out a small amount of grain; and still another would then close and reseal the car door. Before the crew began its work, plaintiff Smith, the foreman, would go by the railroad yard office and obtain a list of cars containing grain to be inspected. Smith would also tag all such cars and the crew would follow and perform their work.

On the day in question, January 2, 1962, plaintiff and his crew, after completing their work in other railroad yards, went to the Wabash tracks about 1:00 p. m. Plaintiff went by the yard office and obtained the Wabash manifest listing 12 cars loaded with grain. The cars, on track 14, had been marked by the Wabash with a tag reading “Grain Inspection.” Plaintiff hung a ticket on each of the 12 cars. He then went to the place where the crew was at work and talked to members of the crew. While standing there, on track 13, with his back to the car, the door in question fell and struck him on the head, pinning him to the ground.

The evidence was that Pendergrast, a member of the crew, broke the seal of the car, knocked the pin out of the hasp, and attempted to pry the door open with a bar. About the time the door began to slide or open, it fell striking plaintiff. A number of witnesses, with years of experience as members of grain inspection crews, testified that out of thousands and thousands of car doors opened for grain inspection they had seen two or three doors fall.

Defendant introduced no evidence with reference to the cause of the door falling.

Before considering plaintiff’s points, we shall dispose of defendant’s contention that the evidence was insufficient to sustain a case of res ipsa loquitur.

In its brief, defendant says plaintiff was a licensee and not an invitee while on defendant’s property as a member of the grain inspection crew. The evidence disclosed that the defendant placed the cars containing grain on track 14, marked them for grain inspection, and gave plaintiff a list of the cars. In other words, defendant cooperated with the crew and the grain dealers to make the inspection possible. It is self evident that plaintiff and his crew were invitees.

Defendant says that to make a case under the res ipsa loquitur doctrine the evidence must show (a) that the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) that the instrumentalities were under the management and control of the defendant; and (c) that the defendant possesses superi- or knowledge or means of information as to the cause of the occurrence. Citing McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557,92 A.L.R. 641 (en Banc)

Defendant concedes that the falling of the door was an unusual occurrence within the doctrine but contends that the car in question was not in the exclusive control of the Wabash and that the Wabash did not have superior knowledge or means of information as to the cause of the occurrence.

We are of the opinion that the evidence was sufficient to support a verdict for plaintiff. The car in question was in the possession and control of the Wabash. The fact that it was a car of the Great Northern does not change the situation. The Wabash inspected and accepted the car at Council Bluffs, Iowa. From that point up to and including the time plaintiff was injured, the car was that of the Wabash.

Defendant says that the evidence was insufficient to show it had exclusive control of the car. Plaintiff offered evidence on this point which the trial court excluded. This was made an assignment of error. During the course of the trial, defendant’s counsel questioned each of the witnesses who were present at the time the door fell and asked if any Wabash employees were there. It was definitely shown that no . such employee was present. In the argument, defendant’s counsel stressed this point and argued that the inspection crew exercised dominion and control of the car; further, that the car belonged to the Great Northern.

Plaintiff offered to prove by members of plaintiff’s crew that frequently while the crew was in the process of taking samples of grain from cars the defendant Wabash would move the cars; that the Wabash was requested to notify the crew when such movements were to be made, or to red flag the cars; that these requests were refused. The offered evidence was rejected. Plaintiff offered to introduce this evidence on the theory that it tended to prove that the Wabash retained complete control of the cars during the time plaintiff’s crew did its work. We are of the opinion that the evidence should have been admitted to refute the theory of defendant that plaintiff’s crew assumed control of the car in question and to show that the Wabash retained control to the exclusion of the grain inspection crew.

The rule is that if a defendant has the exclusive control or right of control then the case comes within the doctrine. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641; Jones v. Thompson, 360 Mo. 285, 228 S.W.2d 673, 99 A.L.R.2d 181; Maybach v. Falstaff Brewing Corp., et al., 359 Mo. 446, 222 S.W.2d 87, 75 C.J.S. Railroads § 957, p. 398.

Defendant’s counsel questioned the members of plaintiffs crew as to whether they inspected the cars before opening the doors. These witnesses stated they would glance at the doors and if a door was bulging a report would be made to the railroad and the railroad would take care of the matter; or in some cases the door on the opposite side of the car would be used. All of these witnesses testified they had nothing to do with car inspections; that they were grain inspectors. They testified that the car in question appeared to be normal to them. The evidence in no way tended to prove that the defendant did not possess superior knowledge or means of information as to the cause of the occurrence.

Plaintiff offered to read in evidence portions of a deposition taken some time before the trial. The witness was Clark Cary who was a car foreman for the defendant Wabash. Cary’s duties were to supervise inspections and repairs of equipment, including cars. The deposition disclosed that Cary had been called by the superintendent on the day plaintiff was injured and directed to make an inspection of the car in question. The inspection was made within an hour after the door fell on plaintiff. Cary found defects which may have caused or probably did cause the door to fall. The evidence was rejected by the trial court on the theory that it was privileged; in other words, that it was work product in anticipation of litigation.

Plaintiff had obtained the names of Cary and of others by interrogatories submitted to the Wabash. Among the questions was one asking if the car had been inspected after plaintiff was injured and if so, by whom. The answer was that Cary had made the inspection.

We are of the opinion that the trial court erred in rejecting the offered evidence. Plaintiff was entitled to this evidence even though he had based his case on general negligence and the rejected evidence tended to prove specific negligence. Fairley v. St. Louis Public Service Company, Mo.App., 389 S.W.2d 378, 1. c. 382 (6, 7); Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284, 1. c. 287(2); Williams v. St. Louis Public Service Company, 363 Mo. 625, 253 S.W.2d 97, 1. c. 101, 102(7).

In its brief, the defendant stated, “The trial court did not err in refusing to allow plaintiff to read to the jury from witness Cary’s deposition because: (A) Plaintiff offered the Cary deposition for the sole purpose of attempting to contest defendant’s claim that the inspection reports made by witness Cary and others were privileged, and now for the first time asserts that the deposition should have been received to prove specific negligence, an issue never raised at trial by pleading or otherwise.”

The record shows that when the deposition was first offered plaintiff’s counsel did state that the purpose of offering the deposition was to show that the reports of the inspection made by the employees of the Wabash were not privileged. However, later in the trial, plaintiff offered to read the deposition or parts thereof as evidence in the case. Defendant objected on a number of grounds, one of which was that the deposition was privileged. The final ruling of the court was as follows:

“THE COURT: Very well, I will accept that as a fact. Under the circumstances the Court will sustain the objection to the introduction of this testimony on the ground of privilege. Do you have anything else?
“MR. FIELD: No, sir.”

The case for plaintiff was then closed and defendant offered a motion for directed verdict.

The deposition of witness Cary should have been admitted. It is obvious that it was not work product or privileged under the law of this State. State ex rel. Uregas Service Co. v. Adams, 364 Mo. 389, 262 S.W.2d 9, 1. c. 12(3).

Among the objections to the deposition, as stated in defendant’s brief, was that it was not shown that Cary was not a resident of Jackson County, Missouri. The deposition showed that he was a resident of Clay County. There was no evidence to the contrary. The point must be ruled against the defendant.

Prior to the trial, plaintiff filed interrogatories, as above noted. Among the questions was one as to whether a written report was made showing the result of the inspections made by the employees of the Wabash. At the trial, plaintiff offered to read the questions and answers thereto to show the existence of a report. The ruling of the trial court requiring the Wabash to answer the interrogatories was proper to enable plaintiff to discover witnesses and other evidence. It does not follow that these questions and answers are in all cases admissible as evidence. We are of the opinion that the report itself was work product. State ex rel. Uregas Service Co. v. Adams, supra; State ex rel. Kroger Co. v. Craig, Mo.App., 329 S.W.2d 804, 1. c. 806 (1-4); State ex rel. State Highway Commission v. Jensen, Mo., 362 S.W.2d 568,1. c. 569-571(2). Since the report itself was work product, plaintiff should not be permitted to read to the jury the interrogatories and answers thereto to show the existence of a report of the inspection. State ex rel. Kroger Co. v. Craig, supra, 329 S.W.2d 1. c. 807 (5-8); State ex rel. Uregas Service Co. v. Adams, supra, 262 S.W.2d 1. c. 12(4).

The points which we have not considered so far may be disposed of in short order. The first pertains to the examination of jurors on voir dire. It would serve no useful purpose to consider this point since it is not likely to occur on retrial.

Plaintiff contends that the trial court erred in refusing to permit plaintiff’s counsel to explain to the jury the effect of the res ipsa loquitur doctrine. The argument, in substance, was that if plaintiff’s evidence was sufficient to establish a case under the doctrine, then negligence could be presumed. This is not the law in Missouri. Negligence in such a case may be inferred but it may not be presumed. Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, 1. c. 805 (1, 2); 65A C.J.S. Negligence § 220.5, pp. 531-537, and Missouri cases there cited.

Plaintiff’s last two assignments of error concern the giving of an instruction on contributory negligence, requested by the defendant, and the refusal to give an instruction on the merits, requested by the plaintiff. It would serve no useful purpose to consider these assignments. The giving of an instruction on contributory negligence must depend on the evidence on a retrial of the case. The trial court gave an instruction for plaintiff which was in substance similar to the one plaintiff requested. The Missouri Approved Jury Instructions should be an ample guide to prepare instructions to conform to the issues on retrial. •

The judgment is reversed and the cause is remanded for retrial. It is so ordered.

PER CURIAM.

The foregoing opinion of HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the Court en Banc.

HOLMAN, SEILER, EAGER, and HENLEY, JJ., concur.

FINCH and DONNELLY, JJ., concur in result.

STORCKMAN, C. J., concurs in result on ground that submission under res ipsa loquitur doctrine is not available because someone not an agent of defendant was undertaking to open the door with a crowbar when it fell.


author: LAURANCE M. HYDE, Special Commissioner.

text:
    Earl Delbert POLLARD, Respondent, v. GENERAL ELEVATOR ENGINEERING COMPANY, a Corporation, Appellant.
    No. 51989.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Murphy & Roche and Morris B. Kessler, St. Louis, for respondent.
    Robertson, DeVoto & Wieland, Leo C. DeVoto, Jr., St. Louis, for appellant.
   LAURANCE M. HYDE, Special Commissioner.

Action for $150,000.00 damages for personal injuries; verdict for defendant but plaintiff’s motion for new trial was sustained. Defendant has appealed from the order granting a new trial.

Plaintiff was injured while working at the foot of a clay wall or bank, estimated as from 10 to 15 feet high, which fell on him. His claim is that the collapse of the wall was caused by vibrations from the operation of defendant’s drilling rig, which was drilling in limestone 44 feet from the clay wall. The court granted a new trial for error in giving Instruction 5, requested by defendant, because of the indefiniteness of its paragraph Second. This Instruction was as follows:

“Your verdict must be for defendant whether or not defendant was negligent if you believe:
“First, plaintiff trimmed back and undercut the dirt bank and,
“That plaintiff continued to work near the undercut dirt bank and,
“That the dirt bank had no lateral shoring and,
“That plaintiff knew or, in the exercise of ordinary care, should have known it was dangerous to do so; and
“Second, plaintiff’s conduct was negligent and
“Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”

Defendant contends this instruction was proper but also claims plaintiff did not make a submissible case failing to prove any causal connection between the operation of the defendant’s drill rig and the falling of the dirt bank which caused plaintiff’s injuries. Therefore, we will review the evidence from the view most favorable to plaintiff. Plaintiff was an employee of Gamble Construction Company, the general contractor for constructing a new building and renovating an older building west of the new building, hereinafter called the “renovated building”. Defendant was a subcontractor to install two hydraulic elevators for the new building. On the date of plaintiff’s injury, there was an excavation for the new building east of the renovated building, 180 feet long west to east and 120 feet wide, north to south. The clay wall was at the west side of excavation along the east side of the renovated building which was supported there by concrete pillars eighteen to twenty feet apart and which were east of its basement wall. A new concrete wall for the new building was to be built adjoining the east side of the renovated building. Another old building which had been on the site of the new building had been razed and its old stone foundation east of the clay wall removed. The clay wall, originally between the foundations of the two old buildings, was left between the pillars supporting the renovated building. Before plaintiff was injured, it had been trimmed by a backhoe so that at the top it was in line with the east face of the renovated building. However, the bucket of the backhoe could not reach lower than four feet above the ground so the lower four feet bowed out east beyond the pillars supporting the renovated building. On the day of his injury, plaintiff and two other workmen were instructed by their foreman to trim down the lower part of the clay bank between the first two (south) pillars so as to make the face of the clay wall even with the western side of these pillars supporting the east side of the renovated building. After thus trimming the clay wall, they were told to bell in (undercut) the wall, cutting up two feet and cutting in about one foot. The west side of this clay wall was up against the east face of the concrete wall of the renovated building’s basement (which did not come as far east as the pillars supporting its east side) so that the clay wall remaining was under the east side of the renovated building.,. It was intended that the clay should remain there between the basement walls of the renovated building and the new building.

Leonard Bengard, superintendent of the Gamble Construction Company, who had sixteen years’ experience as a superintendent in the construction industry, testified that he had ordered the plaintiff and two other men to shape up the wall and ho undercut it in order to pour concrete there for footings for the new wall to be constructed for the new building. In order to complete the footings after the dirt wall had been prepared, it would be necessary to build wooden forms to the east of the base of the new wall so as to hold the concrete. As superintendent, he had selected the method of preparing these forms for the new wall. He did not instruct the men to put any lateral shoring on the face of the wall because he thought it would be safe without lateral shoring. Bengard could have ordered the wall braced with lateral shoring, but it would have taken longer and would have cost more. In order to support the overhang after the wall had been trimmed back even with the west side of the pillars, the men prepared pockets by digging into the base of the wall and inserting a two by ten board at the top of the pocket, which was equal in height to the proposed undercut, and a two by ten board at the bottom of the pocket. Between these boards they placed a four by four as a brace. About five to seven such pockets were cut into the bank at its base along the 20-foot length between pillars before the actual undercutting was started. This shoring in the undercut part of the wall was the only shoring done, no lateral shoring being used.

Superintendent Bengard stated that as part of his duties it was necessary for him to notify the various subcontractors when they were needed and that he had called the defendant to send its men to the job site to start the drilling work. He had instructed defendant’s employees, when they arrived with the drill rig about a week before the accident, where to drill and had decided to drill the westernmost hole- first as the plans called for work on the job to progress eastwardly from the old building towards Jefferson Avenue. The hole was to be dug according to the plans 44 feet east of the dirt bank in question, it was to be 18 inches in diameter. The drill being used by defendant’s employees was of a concussion type with a bit 18 inches in diameter. Its total weight was about 13,000 pounds. The drill bit, together with its stem, which was attached to a cable suspended from a boom, weighed approximately 1500 to 2000 pounds. The drill was operated by a gasoline engine which raised and lowered the drill bit at the rate of approximately 60 strokes per minute. The length of the stroke was about one foot. According to the drill operator, by the morning of the accident, the hole had reached a depth of 25 to 32 feet, drilling into limestone. The drill rig was operating on the morning of the accident when Superintendent Bengard sent the plaintiff and his two fellow workers to the southwest corner of the excavation in order to prepare the dirt wall for the footings. He did not at any time, before the accident occurred, ask the men from General Elevator Engineering Company to stop their drilling, although as superintendent and boss on the job he could have done so.

It took the men approximately 1½ to 2 hours to trim the wall back and make the undercut. After they had finished belling in the dirt bank, the three men were cleaning up the loose dirt in front of the bank and while so doing plaintiff heard the boom (drill bit) go down for the first time, not having previously noticed it, felt vibrations and then heard one of the other men call out “Here comes the wall.” As plaintiff was attempting to escape, he saw that dirt was coming out at the north end of the dirt bank under which he was working. Plaintiff was trapped by the falling dirt and buried up to his shouders. The portion of the dirt wall which fell came out from the top of the wall in the upper right-hand section and was variously estimated as from five feet to one-half the total length of the upper portion of the dirt bank between the two pillars where plaintiff was working. The balance of the undercut wall did not collapse.

Defendant’s expert witness Edward Bil-horn inspected the place after the concrete wall of the new building was completed but could see the type of soil between the walls of the two buildings. He stated that in digging in clay one cannot dig indefinitely and expect a bank of the excavation to remain supporting itself, because clay dries out and loses its cohesive strength and ability to retain itself in position. Clay, as it exists in the ground, is affected by the availability or lack of moisture and does not dry out uniformly. It was his opinion that since only a portion of the undercut dirt bank had fallen that a crack or fault had developed in that area and that the section above the crack or fault was no longer able to maintain itself in position. He stated that clay banks will collapse sooner or later and that he was familiar with the fact that the Corps of Engineers prescribes, as a safety precaution to prevent cave-ins, that all lateral cuts in clay banks in excess of four feet be shored. Bilhorn was not a specialist in the field of soil mechanics, which subject deals with the properties of soil strength and ability to bear structures. He answered a hypothetical question wherein he was asked to state whether he had an opinion as to whether or not there was any contributing effect or any relationship between the dropping of this drill bit and the falling off of the dirt at the top of the cut. His answer was, “In my opinion, I think it would have been a contributing influence to the disturbance of that bank.” Bilhorn after saying it would be hazardous to have men working at the foot of the undercut wall, further testified: “Q And now let’s superimpose on that hazardous wall a drill rig which has a 1,500 to 2,000 pound bit. What effect if any would operating that rig within 40 feet of that hazardous wall tend to have on the wall ? A I think it makes it even more hazardous to cause part of it to fall.”

We also note that defendant’s expert, Henry Reitz, although stating: “I don’t think that the operation of the drill rig would be what made the wall fail,” on cross-examination testified further: “Q Well, Mr. Reitz, getting back again to this other question, could the drill rig have caused this wall to collapse sooner than it would have if the drill rig wasn’t operating? A If the word could means in the realm of possibility, you have already covered that. Q Your answer then is yes? A It could have, but I do not think it would have.” (See Kimmie v. Terminal Railroad Association, 334 Mo. 596, 66 S.W.2d 561, 565.) Defendant’s witness Bengard, the General Contractor’s superintendent with 28 years’ total experience in construction (after other assumptions of the facts) testified: “Q And assume further while these men were cutting down this bank they could feel this drill rig and vibrations from the drill rig. Do you have any opinion based upon your experience as to whether or not there was any relationship between that drill rig operating and this dirt that fell down off the wall ? A Well, I felt, and in my deposition there to the office, that I felt that it was a contributing factor. Q And is that your judgment today too, sir? A Yes, sir. * * * Q Mr. Bengard, assuming that there was a crack at the top of this excavation do you have an opinion based upon your years of experience as tó what effect a vibration from a 13,000 pound drill rig would have upon loosening that crack and loosening the dirt ? A Yes, sir, shake it loose.” Other facts are stated in connection with our ruling on the causal connection issue.

Defendant contends plaintiff relied solely on the opinion of his expert witness, Bil-horn, to establish causal connection and says his opinion lacked any factual basis, was based only on speculation and conjecture and therefore was not substantial evidence justifying submission, citing Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844; Craddock v. Greenberg Mercantile, Inc., Mo.Sup., 297 S.W.2d 541; and Turner v. Haar, 114 Mo. 335, 21 S.W. 737, holding that an expert’s opinion to amount to substantial evidence "must have a substantial basis in the facts actually established.” Defendant’s argument is that the crucial issue “was not whether there were vibratory disturbances, but whether they were of sufficient force to disturb the bank enough to cause the dirt to fall.” Defendant says: “The question omitted is how strong they actually were”; and that “evidence that they could have been felt at the bottom of the excavation was not evidence that they could have been felt at the top in a sufficient degree to cause the falling of the dirt.” Defendant further says: “[Tjhere was no evidence to connect the falling of the dirt with the vibration and proves defendant’s contention that there was no evidence of causal connection in this case.”

In the Turner case relied on plaintiff was injured in the collapse of a building when the roof was blown off by a violent storm. Plaintiff sought to recover on the theory that vibration from operation of the machinery used in manufacturing clothing had previously weakened the walls and floors. The court said this issue was a proper one for opinion evidence but said (21 S.W. l.c. 738) : “In this case, however, the .evidence was worthless, and improperly admitted, for the reason that the witnesses were not put in possession of all the facts necessary to enable them to form an intelligent opinion. * * * The effort seems to have been to supply a proof of facts by use of opinion evidence, instead of proving the facts, and giving the jury the benefit of the opinion of witnesses on the facts as proved.” For the reasons hereinafter stated we do not find that to be the situation here.

We have said: “ ‘Causal connection, it is true, must be proved by the evidence, as a fact, and not be left to mere speculation and conjecture. The rule, however, does not require that there must be direct proof of the fact itself. This would often be impossible. It is sufficient if the facts proved are of such a nature and are so connected and related to each other,' that the conclusion therefrom may be fairly inferred.’ ” Pentecost v. St. Louis Merchants’ Bridge Terminal Railroad Co., 334 Mo. 572, 66 S.W.2d 533, 536, quoting from Frese v. Wells, Mo.Sup., 40 S.W.2d 652, 654. We further said therein: “What is a proximate cause is ordinarily a jury question.” We consider that there was sufficient circumstantial evidence in this case to support a finding of causal connection between the operation of defendant’s drill rig and the collapse of the clay wall. Plaintiff said that on the day before he was injured, while he was working 100 feet from the drill rig, he could feel vibration from it through his feet and saw dirt fall off the bank. The two men who were working on the wall with plaintiff, called as witnesses by defendant, each said the drill rig was operating at the time the wall collapsed and that he could feel its vibration in the ground through his feet. Each said he did not see the clay bank shake and there was no direct proof that the clay wall did vibrate or shake. Nevertheless, the wall did fall and it was shown that there were strong vibrations in the ground up to it and we consider these facts with the other circumstances in evidence to be a sufficient factual basis for an expert opinion as to what effect these vibrations would have on the wall. Therefore, we hold there was sufficient factual basis from this evidence on which to authorize expert opinion that there was sufficient vibration from defendant’s rig to be a direct contributing cause to the collapse of the wall. While Bilhorn’s testimony was somewhat indefinite, taken as a whole it can reasonably be construed as an opinion that the vibration caused by the rig increased the hazard of a collapse of the wall and directly contributed to its fall. Furthermore, his opinion was supported by that of Superintendent Bengard. We, therefore, hold that plaintiff had sufficient evidence of causal connection to make a submissible case.

Instruction 5 was a modification of M.A.I. 28.01. However, paragraph Second of 28.01 (omitted in this instruction) is: “Second, plaintiff’s conduct in any one or more of the respects submitted in paragraph First, was negligent.” The court stated its reasons for granting a new trial in its order, as follows: “That Instruction No. 5 is prejudicially erroneous in that paragraph Second of such instruction gave the jury a roving commission and allowed the jury to consider any kind of conduct, act or omission of plaintiff whether or not specifically submitted, that they, the jurors, thought was failure to exercise ordinary care on behalf of plaintiff and which they, the jurors, thought could be decisive on the factual issue of contributory negligence whether in fact such act was or was not supported by the evidence and thereby allowed the jury to find plaintiff contribu-torily negligent by reason of acts which are not set forth in paragraph First. Such paragraph Second does not in any way refer to the alleged acts set forth in paragraph First and does not restrict the jury to only those acts submitted in paragraph First and therefore the jury could have found plaintiff contributorily negligent by the mere fact that he was a laborer on the job or could have found him negligent for any other reason which struck the fancy of a juror thereby defeating plaintiff’s recovery on this issue, and gave the jury a roving commission to find for defendant upon any speculative basis it could construct or evolve out of its own mind.”

We consider Heimos v. Bruce, Mo.Sup., 393 S.W.2d 477, and Endermuehle v. Smith, Mo.Sup., 372 S.W.2d 464, cited by plaintiff, support the trial court’s view. Furthermore, it is a familiar, well established principle that this court will be more liberal in upholding the trial court’s action in sustaining a motion for new trial than in denying it; because to reverse the court’s action in denying a new trial would require a reversal of a judgment. See cases in West’s Missouri Digest, Appeal and Error,. This also is because the power of the trial court to grant, a new trial is an exercise of its judicial discretion, which may be based upon matters known to the court (often said to be in the breast of the court) because the trial judge participated in the trial and knew what took place. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, 300. We also note that this instruction conveyed the impression of plaintiff trimming the bank alone on his own initiative, ignoring the fact that plaintiff was working with others under direction of his foreman. We consider this would make the general submission of negligent conduct in paragraph Second more susceptible of misunderstanding. The first paragraph would be more in accord with the situation shown by the evidence if it stated: “First. Plaintiff and his fellow workmen had trimmed back and undercut a dirt bank and that the dirt bank had no lateral shoring and that plaintiff continued to work near the undercut dirt bank and that plaintiff knew, etc.” Tn this case the trial court, from direct observation of the trial, had the best opportunity to evaluate and determine the effect of the general submission in paragraph Second of this instruction; and in its order it specifically set out its reasons for considering this instruction prejudicial.

The order granting a new trial is affirmed and the cause remanded.

PER CURIAM:

The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.