text:
    STATE of Missouri, Respondent, v. □elford HAYGOOD, Appellant.
    No. 52023.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Jerome W. Seigfreid, Asst. Atty. Gen., Mexico, for respondent.
    J. Whitfield Moody, J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   STOCKARD, Commissioner.

For the killing of his former wife, Del-ford Haygood was found guilty of murder in the second degree and sentenced to life imprisonment. He has appealed.

The evidence clearly authorized a finding of murder in the second degree, the defendant does not challenge its sufficiency, and we need not set out in detail the circumstances established by the state’s evidence. It is sufficient to say that about 4:30 o’clock in the morning of July 10, 1965, Rose Haygood died from a gunshot wound received from a gun in the hands of defendant after she and defendant had engaged in an argument. Defendant testified in his own behalf, and according to him he went to the home of his former wife shortly after dark on July 9 in response to a call from her. They talked for awhile about the possibility of a reconciliation, but he indicated that they could not be reconciled as long as she “permitted herself to be badgered or permitted herself to be led by her people instead of living her own life.” He went to sleep at the house and when he awakened it was getting light. He then awakened Rose, and she asked him if he meant what he had said about not wanting to go back together, and he told her that he did. He was putting on his shirt when Rose “came at [him] with a butcher knife.” She missed striking him on her first attempt, but she then stabbed him in the chest. They started grappling, and he picked up an automatic pistol which was lying on the coffee table. While they were scuffling and he was trying “to transfer the gun from [his] right hand to his left hand to keep her off” he was stabbed again, and the gun went off and shot into the ceiling. While he was holding her hand in which she held the knife, either he pushed her or she pushed him, and “she was spun” and the gun went off again. After the gun went off this second time she “was spinning,” and she then ran to the yard and fell. Defendant went to her, but did not know that she was shot, and helped her back into the house.

Admittedly, the testimony of defendant was inconsistent with some of the circumstances shown by the state’s evidence from which an intentional shooting could be inferred.

The court instructed the jury on murder in the second degree, manslaughter, presumption of innocence and reasonable doubt, and the credibility of witnesses.

Defendant contends on this appeal that the trial court erred in failing to instruct the jury on the issue of excusable homicide because of accident. This contention was not set forth as an assignment of error in the motion for new trial, but defendant urges that the failure to so instruct the jury constituted plain error affecting substantial rights within the meaning of Criminal Rule 27.20(c), V.A.M.R. We shall determine first whether it was error not to so instruct the jury, and if so whether this constituted plain error within the meaning and scope of the rule.

Criminal Rule 26.02(6), V.A.M.R., provides that “In all criminal cases the court, whether or not it shall have been requested so to do by either party, must instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict * * *. In all felony cases failure so to instruct shall be good cause for setting aside a verdict of guilty by the jury and granting a new trial.” In State v. Bradley, 352 Mo. 780, 179 S.W.2d 98, this court stated that “Where there is evidence warranting a finding that a homicide was accidental, we have said ‘the question should have been submitted to the jury as a part of the law of the case whether an instruction thereon was requested or not’ (State v. Crowley, 345 Mo. 1177, 1182(1), 139 S,W.2d 473, 475, 476 [1, 2]); which means a proper instruction,” and that the failure to do so results in “affirmative misdirection and not one of mere nondirection or poorly phrased proper direction.” See also State v. Martin, 349 Mo. 639, 162 S.W.2d 847; State v. Aitkins, 352 Mo. 746, 179 S.W.2d 84; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49; State v. Vincent, Mo., 321 S.W.2d 439; State v. Watson, Mo., 364 S.W.2d 519. In State v. O’Kelley, Mo., 213 S.W.2d 963, the defendant was convicted of murder in the second degree. The defendant testified, to quote from the opinion, that “the gun was discharged while he and [the deceased] were scuffling for its possession.” After quoting from what is now Section 546.070, RSMo 1959, which is the same as that portion of Criminal Rule 26.02(6) quoted above, the court also quoted the definition of excusable homicide contained in what is now Section 559.050, RSMo 1959, and said this: “On defendant’s own testimony he was entitled to an instruction, whether he requested it or not, submitting his defense that the killing was accidental.”

We conclude that under the circumstances of this case the failure of the trial court to instruct the jury on defendant’s defense that the homicide was accidental was plain error under Criminal Rule 27.20 (c). See State v. Reeder, Mo., 395 S.W.2d 209, 211.

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.


source: Caselaw Access Project

author: STORCKMAN, Chief Justice.

license: Public Domain

text:
    Grade HASTINGS, Administratrix In the Estate of William Masters, and Agnes Masters, Plalntlffs-Appellants, v. James COPPAGE, Defendant-Respondent.
    No. 51758.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Jack O. Edwards, James R. Robison, Dempster, Edwards & Robison, Sikeston, for appellants.
    Blanton, Blanton & Rice, Bernard C. Rice, Sikeston, for respondent.
   STORCKMAN, Chief Justice.

This action in two counts arises out of an alleged collision between the defendant’s automobile and William Masters in Cana-lou, Missouri, on August 19, 1964. Mr. Masters died nine days later. The first count is for wrongful death by the widow Agnes Masters. The second count is for Mr. Masters’ personal injuries brought by Gracie Hastings as administratrix of the estate of William Masters, deceased. Each count sought damages in the sum of $25,-000. At the conclusion of plaintiffs’ evidence on liability the trial court directed a verdict for the defendant and the plaintiffs appealed. The sole question on appeal is whether the evidence was sufficient to make a submissible case.

The accident occurred on Main Street which runs generally in a north-south direction and is surfaced with a bituminous asphalt pavement 18 feet 10 inches wide. At the place in question there is a three-foot shoulder covered with gravel and grass. Adjoining the shoulder on the west is a shallow ditch. At the north edge of Canalou Main Street intersects with New Madrid County Route H which runs east and west. Mr. Masters, 83 years of age, lived on Route H. At about 7:30 a. m. on the day in question he left his home to walk to the post office about a quarter of mile distant. When he reached Main Street he walked south on the west side which was the right side of the highway in the direction he was going.

The plaintiffs’ principal eyewitness, G. D. Drake, was seated with his wife Iris in the front seat of his automobile which was parked on the east side of Main Street headed north ISO to 200 feet south of where the accident happened. He had a clear view of Mr. Masters walking south on the west side of the highway. He also saw the defendant turn the comer from Route H onto Main Street at which time the defendant’s automobile was moving about five to ten miles per hour. It continued at about the same speed until it overtook and stopped beside Mr. Masters. Asked to state “what happened” the witness Drake testified that Mr. Masters “was walking south on the right hand side of the road and Mr. Coppage turned the comer coming south also and just as Mr. Coppage got up to him, I believe he was going to stop and pick him up, and the windshield post on the right hand side of the car, and when he got to him and Mr. Masters just turned and there was the car.” Mr. Masters “just turned and set down on the pavement, his left foot under his right leg.” He was “right at the edge” when he sat down. Mr. Drake went immediately to the scene of the accident; when he got there Mr. Masters was leaning against the door of the automobile. Mr. Masters said his leg hurt and asked Mr. Drake to pick him up and put him in the car which was done. Mr. Masters also said in the presence of Mr. Drake and others that “it wasn’t Mr. Cop-page’s fault” and “he wanted to tell that Mr. Coppage wasn’t at fault while he knew what he was doing.”

The witness Drake estimated that the defendant’s automobile was about 18 inches from the west side of the road as it was headed south. It did not get off on the shoulder at any time, or swerve to the right or left. The witness did not hear any horn sounded. He thought Mr. Masters was walking at the edge of the pavement. Just about the time the front of the windshield got even with Mr. Masters he turned into the car; the defendant did not turn his car into Mr. Masters. The defendant’s automobile was not moved from the position in which it was stopped until after the highway, patrolman arrived.

When Robert Ferrell Miller, a Missouri State Highway Patrolman, arrived the defendant’s vehicle was on the highway with Mr. Masters in the back seat. He took measurements and the distance “from the west edge of the pavement to the nearest part of the automobile, front and rear,” was ten inches. There was no damage to defendant’s car. The west shoulder was three feet wide at the place where the car was sitting. Trooper Miller further testified that Mr. Masters “stated that he was walking on the edge of the road about one or one and a half foot from the edge.” The defendant’s statement was: “I really don’t know what happened. I was going really slow. I generally stopped to pick him up every morning and I was going to pick him up this morning.”

Gracie Hastings, a daughter of Mr. Masters, testified her father’s hip was broken. After being in a hospital at Cape Girardeau for nine days members of Mr. Masters’ family moved him to a hospital in Sikeston where he died shortly after arrival. The widow Agnes Masters testified that the defendant came out to her home about four days after the accident and stated: “Well, I did hit the poor old fellow but I don’t know how I done it. I don’t know how I done it.”

The plaintiffs read into evidence portions of the defendant’s deposition wherein the defendant testified that he was driving a 1959 Chevrolet with good brakes; that he first saw Mr. Masters ahead of him when he, the defendant, turned south into town going seven to ten miles per hour; that he decreased his speed and went slower all the time; that he did not sound his horn or turn his car to the right or left; that Mr. Masters was walking off the blacktop on the west side of the road; that Mr. Masters “had been riding with me once in awhile to go to the Post Office. I put on my brakes to stop and he fell beside my car”; that the right front wheel was 18 inches from the west edge of the highway and the car was not moved from the time the defendant stopped until after Mr. Masters was put in the automobile. Four snapshot photographs of Main Street looking north and south were used to mark the place where the accident occurred. They tend to confirm the verbal description of the area given by witnesses and further show that the edge of the asphalt pavement is somewhat irregular and at places slightly raised above the adjoining shoulder which appears to have a somewhat uneven surface. The plaintiffs’ amended petition alleged that Mr. Masters “was walking beside said roadway.”

The trial court having sustained the defendant’s motion for a directed verdict at the close of plaintiff’s case, the evidence and all reasonable inferences therefrom must be reviewed in the light most favorable to the plaintiffs. Perry v. Dever, Mo., 303 S.W.2d 1, 4(2). A cause may not be withdrawn from the jury unless the facts in evidence and the legitimate inferences which may be drawn therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Nelson v. O’Leary, Mo., 291 S.W.2d 142, 147(4).

The plaintiffs’ chief contention is that the defendant was guilty of humanitarian negligence in that “William Masters was walking on the roadway with his back to the defendant’s automobile, and that the defendant, while driving ten miles per hour or less, had the pedestrian in full view as he drove towards him, covering more than 130 feet prior to colliding with him, without ever stopping, or swerving his automobile, or sounding his horn.” The plaintiffs pleaded several grounds of primary negligence and in their written argument assert they do not intend to abandon the allegations, but they have not specified, briefed and argued any of them. Contentions not presented in the points to be argued in an appellate brief are abandoned and will not be considered. Sup.Ct. Rule 83.05(a), V.A. M.R.; Marshall v. City of Gladstone, Mo., 380 S.W.2d 312, 314(1); Ayres v. Keith, Mo., 355 S.W.2d 914, 919(6). A point is not properly presented for review if it is advanced for the first time in the argument portion of the brief. Frager v. Glick, Mo., 347 S.W.2d 385, 390(5). The only question for review is whether the plaintiffs made a submissible case under the humanitarian doctrine.

The essential elements of a submis-sible case under the humanitarian negligence doctrine have been well established since Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484, and as applied to this case are that (1) the pedestrian was in a position of imminent peril; (2) the motorist knew or should have known thereof; (3) the motorist after receiving or being charged with such notice had the present ability, with the means at hand, to avoid the impending injury to the pedestrian without injury to himself, his vehicle, or others; (4) the motorist failed to exercise due care to avert the injury; and (5) by reason of such failure the pedestrian was injured.

The plaintiffs contend that Mr. Masters was oblivious to his danger in that regardless of whether Mr. Masters was on the pavement or on the shoulder he and the defendant’s automobile “were on a collision course,” and that a jury could have found that the “position of imminent peril existed from the time the defendant turned the corner” from Route H onto Main Street, a distance of 138 to 144 feet from the place where the accident occurred. The principal fallacy with these contentions is that they disregard the fact established by all the evidence that the front portion of defendant’s automobile did not come in contact with Mr. Masters. On the contrary the automobile drew alongside him to a point where the windshield post was about even with him and the automobile was practically stopped before Mr. Masters turned toward the car and fell or sat down in a position of leaning against its door. The evidence further shows that after the automobile drew abreast of Mr. Masters, it did not turn or move in his direction. The record is silent as to what part of the automobile, if any, came in contact with Mr. Masters before he fell.

The first and basic fact necessary to liability under the doctrine of humanitarian negligence is the existence of a peril that is “imminent” which means certain, immediate, and impending, and not remote, uncertain, or contingent, and the likelihood or bare possibility of injury is not sufficient to create “imminent peril”; it is only when such imminent peril arises that the humanitarian doctrine blots out antecedent negligence and seizes on the then existing situation and imposes a duty to exercise due care to avoid inflicting the threatened injury. Ornder v. Childers, Mo., 327 S.W.2d 913, 916(3); Bafaro v. Pezzani, Mo.App., 376 S.W.2d 631, 633(4); McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704, 707(2); Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775, 778(4); Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234, 236(3); Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373, 377-378(12).

The evidence does not support the plaintiffs’ contention that Mr. Masters and the defendant’s automobile were on a collision course regardless of whether Mr. Masters was walking on or off the pavement. The evidence establishes that the automobile was on the pavement at all times and there is no room for an inference to the contrary. The testimony as to Mr. Masters’ position is rather ambiguous; there are indefinite references to the west side of the road and distances from the edge of the road and edge of the pavement. Mr. Drake testified at one time he “thought” Mr. Masters was walking at the edge of the pavement. The defendant testified Mr. Masters was off the pavement on the shoulder. We need not determine, however, whether he was off or on the pavement since it is evident that he was not in the path of the automobile or the defendant would not have been able to drive alongside him as was done according to all the evidence.

When a motorist and a pedestrian are not on a collision course and can safely pass unless one of them changes his course, the pedestrian is not in imminent peril even though he is oblivious of the approaching automobile and during such time the motorist owes no duty under the humanitarian doctrine. Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775, 778(6). This is further demonstrated by cases cited above. In Ornder v. Childers, Mo., 327 S.W.2d 917(4), the court stated: “Automobiles on two-lane highways continuously overtake and pass other automobiles in their proper lanes without giving rise to an imminent peril situation.” It was held that imminent peril did not attach until the lead vehicle began a left turn. The other cases cited are to the same legal effect.

The plaintiffs have cited a number of cases in which the evidence showed that the plaintiff was in or about to enter the path of defendant’s vehicle and it was held that a submissible humanitarian case was made. We have examined all of them but they are not persuasive of the sufficiency of the evidence in this case and need not be discussed individually. Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165, was a passing case. The plaintiff who had been walking north on the right side of the pavement stopped and stood in the attitude of starting to cross the street and continued to watch cars coming from the north. The defendant’s taxi approached from the south at a speed of 25 miles per hour and passed so close to the oblivious plaintiff that it hit his dinner bucket in his extended hand and knocked it into his face injuring him. Defendant saw the plaintiff in this position for 50 to 75 feet and the court held a case was made under the humanitarian rule. In the instant case Mr. Masters was not in the attitude of crossing the road and the defendant was slowing down and did stop in the usual position for picking up a passenger. Contrary to plaintiffs’ contention Mr. Masters was not in imminent peril from the time the defendant turned the corner onto Main Street and during the approach of defendant’s vehicle.

It is doubtful if there is substantial evidence that Mr. Masters came into imminent peril at any time, but, if he did, the evidence would not support a finding that it arose prior to the time the post of the windshield was even with Mr. Masters and he turned toward and, presumably, into the automobile since the evidence establishes that the car did not move toward him. As the trial court observed during the argument on the motion for a directed verdict, “cars don’t move sideways.” There is nothing in the record to indicate that this one did. As Mr. Masters turned toward the car the defendant was braking to a stop and did stop within one foot thereafter. There is no evidence or permissible inference that the defendant .had the present ability with the means at hand to avoid the injury after Mr. Masters turned toward the automobile. McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704, 707(3); Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775, 779(10); Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420, 422(5); Bafaro v. Pezzani, Mo.App., 376 S.W.2d 631, 634(5) ; Lane v. Wilson, Mo.App., 390 S.W.2d 943, 949(8); Kirks v. Waller, Mo., 341 S.W.2d 860, 865(6).

The constitutive elements of an action under the humanitarian doctrine must be proved by the plaintiff as in any other negligence, case. The evidence must have substantial probative value and be sufficient to enable a jury to render a verdict without resorting to surmise, speculation or guesswork. Kirks v. Waller, Mo., 341 S.W. 2d 860, 863(3); Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787(1) ; Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495, 499(4, 5); Davis v. McClanahan, Mo.App., 262 S.W.2d 65, 68(2). As previously indicated there was a failure of proof that the defendant had the ability to avoid the accident after Mr. Masters can be said to have been in a position of imminent peril. The trial court properly directed a verdict for the defendant.

The judgment is affirmed.

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Leroy MAXWELL, Appellant.
    No. 52214.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    No attorney for appellant.
   EAGER, Presiding Judge.

This proceeding is one instituted under Criminal Rule 27.26, V.A.M.R. by motion to vacate a judgment and sentence for robbery with a dangerous and deadly weapon. Defendant was convicted by a jury on May 2, 1962, and, upon a finding by the court of four prior felony convictions, he was sentenced to a term of forty years. On appeal the judgment was affirmed. The opinion of this Court appears at 376 S.W. 2d 170. The present motion was overruled without the hearing of evidence. Defendant has been permitted to appeal in forma pauperis from that ruling.

The motion contains much argument and immaterial matter. In so far as it contains factual allegations, however, the substance is as follows: (1) that defendant was denied adequate assistance of counsel in that he was in jail for five months awaiting .trial on a capital charge and was without counsel until “the date the trial actually began”; that he did not have counsel at any preliminary stage; that “they gave me a public defender five (5) minutes before going to trial * * *and that this was the first time he “ever saw a counsel * * *.” Therein he alleges a violation of due process. (2) As a further ground defendant alleges that in charging him in one indictment with four prior felonies and the principal robbery, and in the procedure by which the trial judge “removed” and heard four of the charges and found him guilty, whereas the fifth (the robbery) was left to a verdict of the jury, his rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated. He thus claims that he was placed in double jeopardy and also that he was denied both due process and equal protection. Defendant apparently contends that he was subjected to two different trials by the procedure just mentioned.

We have examined the transcript on appeal which was filed here in the principal case. Defendant was indicted on January 16, 1962, for robbery with a dangerous and deadly weapon, with the added charge of the commission of four prior felonies. The entry of his arraignment was as follows: “On January 23, 1962, on arraignment, defendant pleaded not guilty.” The entry made at the beginning of the trial on May 1, 1962, recites that the trial began with “Jack L. Koehr, Esq., appearing for the Defendant, from the Office of the Public Defender.” Mr. Koehr appeared throughout the trial. No order of appointment of counsel is shown in the transcript, nor is any appearance of counsel shown prior to the trial.

We shall consider, first, defendant’s constitutional attack upon our “Second Offender” statute and procedure. Section 556.280, RSMo 1959, V.A.M.S. (Amended Laws, 1959); this supplanted a prior statute of the same number. The provisions of the new statute permit the trial judge to hear the evidence of prior convictions outside the presence of the jury, to make findings thereon prior to the submission of the issue of guilt or innocence to the jury, and to assess the punishment of the defendant if he is found guilty by the jury. This procedure does not constitute a trial for separate or different offenses; it goes only to the matter of punishment. The procedure and the statute, and indeed the prior statute, have been held impervious to attacks upon their constitutionality. On the theory of double jeopardy, see State v. O’Brien, Mo., 252 S.W.2d 357, certiorari denied O’Brien v. State of Missouri, 345 U.S. 929, 73 S.Ct. 790, 97 L. Ed. 1359; State v. Abbott, Mo., 265 S.W.2d 316; State v. Johnstone, Mo., 335 S.W.2d 199, certiorari denied 364 U.S. 842, 81 S.Ct. 81, 5 L.Ed.2d 66; State v. Collins, 266 Mo. 93, 180 S.W. 866. To the effect that there is no violation of the requirements of due process or equal protection, see: State v. Wilwording, Mo., 394 S.W.2d 383, and cases there cited; State v. Morton, Mo., 338 S.W.2d 858; State v. Deutschmann, Mo., 392 S.W.2d 279; as holding that there is no infringement of the right to trial by jury, see: State v. Garton, Mo., 396 S.W.2d 581; State v. Brownridge, Mo., 353 S.WCd 715. A very recent discussion of statutes ¡'f this type appears in Spencer v. State of Texas (combined with other cases) 87 S.Ct. 648, decided on January 23, 1967; there the majority held that a statute of the general type of our prior statute was immune against attack, but both the majority and the minority of the court recognized the constitutional validity of statutes of the type of our present § 556.280. The point merits no further consideration. The statute and the procedure are valid for all purposes and against all such constitutional attacks. Such a point should be denied peremptorily in future cases.

The other point presents the asserted failure to furnish adequate assistance of counsel; this, for the reason that plaintiff was allegedly not given counsel until five minutes before he went to trial. We are not concerned here with the absence or lack of counsel at a preliminary hearing. There was no preliminary hearing, since the charge was initiated by an indictment. Since 1835 Missouri has provided for the appointment of counsel for indigents in the trial of felony cases. R.S.Mo.1835, p. 485, § 3. That statute is substantially identical with our present § 545.820, RSMo 1959, which has been supplanted by our Criminal Rule 29.01. That Rule expands the requirement and imposes the duty upon the court to advise a defendant, upon arraignment, of his right to counsel and upon request to appoint counsel for an indigent defendant. This requirement has also been recognized in the following cases: State v. Turner, Mo., 353 S.W.2d 602; State v. Owens, Mo., 391 S.W.2d 248; State v. Moreland, Mo., 396 S.W.2d 589.

In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the Court held that the failure to furnish adequate assistance of counsel in a real and substantial sense was a violation of due process. The Court there said, in part, loc. cit. 56, 57, 71, 53 S.Ct. loc. cit. 59, 65: “It thus will be seen that until the very morning of the trial no lawyer had been named or definitely designated to represent the defendants. * * * In any event, the circumstance lends emphasis to the conclusion that during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself. * * All that it is necessary now to decide, as ■ we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” In Avery v. State of Alabama, 308 U.S. 444, loc. cit. 446, 60 S.Ct. 321, loc. cit. 322, 84 L.Ed. 377 (a capital case) the Court said: “But the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” See also Crooker v. State of California, 357 U.S. 433, 439-440, 78 S.Ct. 1287, 2 L.Ed.2d 1448.

Under recent decisions of that Court the same principles have been applied to impose the duty of appointing counsel for indigents to noncapital cases, in the absence of an intelligent waiver. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. In Jones v. Cunningham (CA 4), 297 F.2d 851, the Court held that the appointment of counsel on the day of trial, where no real investigation was made and defendant was advised to plead guilty because of a prior confession, did not constitute a satisfaction of the defendant’s constitutional rights, but was an “empty gesture.” See also Sigler v. Bird (CA 8), 354 F.2d 694.

We conclude that the Court erroneously denied the present motion without hearing evidence upon the claim of inadequacy of defendant’s representation by counsel. By this we do not refer to the competency or incompetency of counsel, but primarily to the failure to ascertain whether counsel was furnished so late as to prevent any real or intelligent investigation and preparation for trial, in view of the seriousness of the charge, the nature of the anticipated evidence, and all of the attendant circumstances. We now set aside that order, to the end that such a hearing may be held. The defendant should be present at the hearing, and the Court will have adequate means of procuring his presence. The defendant should also have such process as may be necessary to a full hearing, and appropriate notice should be given to the Circuit Attorney. We also direct the Court to make findings of fact and conclusions of law after hearing the evidence. We have ruled the validity of our Second Offender procedure and the trial court need not concern itself with that feature of the motion. We note that our Criminal Rule 27.26 has been radically amended, effective September 1, 1967. Any compliance with the provisions of the amended rule at this time lies largely within the trial court’s discretion.

The judgment and order of the trial court denying the defendant’s motion to vacate is reversed, and the cause is remanded for further proceedings in accordance with this opinion.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Vernie E. MARTIN, Appellant.
    No. 52218.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Edward P. McSweeney, Sp. Asst. Atty. Gen., Clayton, for respondent.
   WELBORN, Commissioner.

This is an appeal from a judgment and sentence entered on a jury’s verdict finding appellant guilty of robbery in the first degree and fixing his punishment at five years’ imprisonment.

The charge involved a holdup at a service station in Kansas City. The station attendant was accosted by two men, one of whom had a pistol which he pointed at the attendant and said, “Let’s have the money.” Some $46.00 in currency and the attendant’s changer were taken by the intruders. The second, unarmed and identified by the attendant as the appellant, ordered the attendant into the restroom. The robbers departed in an automobile and were apprehended by the police shortly after the occurrence. Appellant’s admission of his involvement was introduced into evidence.

On this appeal, the first assignment of error relates to the failure of the trial court to appoint counsel for appellant at his arraignment at which appellant pled not guilty. However, no exception to such failure appears to have been taken in the trial court, either prior to trial or in appellant’s motion for new trial. Therefore, there is nothing preserved for review on this appeal. State v. Collins, Mo.Sup., 394 S.W.2d 368, 372[7]; State v. Ray, Mo.Sup., 354 S.W.2d 840, 842[5].

Appellant suggests that the plain error rule (Criminal Rule 27.20(c), V.A.M.R.) should afford a review of his objection that there was not an intelligent waiver by appellant of counsel on arraignment. The record recites an offer to appoint counsel and the finding by the court of an intelligent waiver of a right to counsel. No objection regarding the waiver having been called to the attention of the trial court, we decline to review appellant’s objection on this appeal.

Appellant also invokes the plain error rule as the basis for his third and fourth assignments of error. The third objection relates to the court’s failure to instruct the jury that the statement of his coparticipant, used to impeach the latter when called as a witness by appellant, should be given effect only for purpose of impeachment. No objection on this ground appears in the motion for new trial. See State v. Collins and State v. Ray, supra. Nor was any such instruction offered by appellant. See State v. White, Mo.Sup., 263 S.W. 192, 195[12] ; State v. Gatlin, 170 Mo. 354, 70 S.W. 885, 891; State v. Chaney, Mo.Sup., 349 S.W.2d 238. The fourth assignment of error relates to alleged prejudicial oral argument by the prosecuting attorney. No objection was made at the time of the allegedly prejudicial argument. See State v. Martin, Mo.Sup., 346 S.W.2d 71, 73[5, 6]. Neither of the matters calls for review under the plain error rule.

Appellant’s final assignment of error relates to the introduction into evidence of a prior statement of the victim of the robbery over appellant’s objection that there was no proper basis for the admission of the statement in evidence. Appellant did object to the introduction of the statement when it was admitted, but failed to point out specifically the court’s ruling in his motion for new trial, as required by Criminal Rule 27.20(a). Therefore, the matter is not preserved for review and again is not such as would be reviewable under the plain error rule.

We find no error in the matters of record reviewed pursuant to Criminal Rule 28.02, V.A.M.R.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Ross O’Dell CAREY, Appellant.
    No. 52260.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jerome Wallach, Asst. Atty. Gen., Jefferson City, for respondent.
    Sloan Richard Wilson, J. Arnot Hill, Kansas City, for defendant-appellant.
   WELBORN, Commissioner.

This is an appeal from a judgment and sentence imposed by the court under the Habitual Criminal Act of concurrent five-year terms of imprisonment upon a jury verdict of the appellant’s guilt of burglary in the second degree and stealing.

On the morning of June 25, 1965, a neighbor who kept an eye on the Charles C. Overstake residence in Kansas City while the Overstakes were away conducting a Salvation Army Camp discovered that a previously locked and closed French door of the Overstake’s residence was opened and that two panes of glass had been broken out of the door. Upon observing the interior in disarray, the neighbor called Colonel Overstake. Upon reaching his house, Colonel Overstake discovered a number of items missing from the house, including a small portable radio, a record cabinet, a pedestal fan, a rotisserie, an electric can opener, jewelry and frozen food from the freezing compartment of the refrigerator.

The Kansas City Police Department was notified and an investigating officer came to the residence at around 11:00 A.M., June 25.

At approximately 3:15 A.M., on June 25, two patrolling Kansas City police officers stopped an automobile to question the driver about the absence of a city license sticker on the vehicle. The driver was the appellant, Ross O’Dell Carey, and he told the questioning officer that the vehicle belonged to him.

While interrogating Carey, the officer noticed a fan in the rear seat of the auto. Carey said that he did not know to whom the fan belonged. The officer asked Carey if he would mind if he looked in the trunk of the automobile. According to the officer, Carey said: “No, sure, go ahead,” and got out and unlocked the trunk. The officer observed a variety of articles in the trunk, including a record cabinet, a pillowcase containing items of women’s jewelry and a sack of frozen food. Carey denied ownership of the articles and said that he did not know how they got in his auto. Carey was taken to the police station to be booked for having no city license. The articles in the Carey auto were eventually found to have come from the Overstake residence and were identified by Colonel Overstake at the trial.

Carey was charged with burglary and stealing and found guilty upon a jury trial.

On this appeal, the first specification of error relates to the introduction into evidence of items discovered in Carey’s automobile when he was stopped by the policemen. The objection is made that the testimony of the officers that they stopped Carey for having no city license sticker is unbelievable because it is contrary to the physical facts and thereby unworthy of belief. The second portion of this objection is that the arrest of appellant was, therefore, unlawful and that the subsequent seizure of the property observed in the car was not incidental to a lawful arrest and the introduction into evidence of the items violated appellant’s constitutional guaranties against unreasonable search and seizure. However, the grounds of objection at the trial and in the motion for new trial were that the alleged search was illegal because undertaken in connection with a traffic violation. No constitutional objections were stated.

In any event, the difficulty with the objection raised is that, insofar as the transcript here shows, the objection to the use in evidence of the items taken from Carey’s automobile was raised for the first time at the trial. The rule is well-settled in this state that, except when the defendant has no reason to expect that evidence obtained as the result of a search will be used against him, a pretrial motion to suppress the evidence on the grounds of the illegality of the method of obtaining it is necessary. Except in case of surprise, not here claimed, overruling an objection at trial without a prior motion to suppress is not error. State v. Garrison, Mo. Sup., 305 S.W.2d 447, 451 [5, 6]; State v. O’Brien, Mo.Sup., 252 S.W.2d 357, 359[2]; State v. Lee, 361 Mo. 163, 233 S.W.2d 666, 669 [6],

The second objection is that the trial court permitted the prosecuting attorney to propound leading questions to a police officer concerning the information given appellant respecting his rights upon interrogation. The objected to questions were propounded out of the hearing of the jury, but the testimony adduced as a result of the questions objected to was immaterial because the only statement of the appellant concerning which the officer testified was an exculpatory statement, not a confession. According to the officer, appellant told him that he had purchased from a person not known to him certain of the items found in his auto and that he did not know where the others came from. In such situation, the warning which the officer gave appellant is of no matter and the leading question on the presentation to the court alone is not grounds for error. 23 C.J.S. Criminal Law § 816 b, p. 156.

The matters of record examined pursuant to Criminal Rule 28.02, V.A.M.R., are without error.

The judgment is affirmed.

HOUSER and HIGGINS, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: CLEMENS, Commissioner.

text:
    The STATE of Missouri, Plaintiff-Respondent, v. Clifford FAVELL, Defendant-Appellant.
    No. 32437.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.

      Richard L. Daly, St. Louis, for appellant.
    Thomas W. Shannon, Pros. Atty., by James I. Bucher, Asst. Pros. Atty., St. Louis, for respondent.
   CLEMENS, Commissioner.

Defendant Clifford Favell appeals from a judgment of the St. Louis Court of Criminal Correction convicting him of stealing a typewriter worth less than $50 and imposing a sentence of six months in jail. See §§ 560.156(2) and 560.161(1), V.A.M.S. The appeal raises a single issue: the sufficiency of the State’s evidence.

Defendant Favell and Nelson E. Johnson were jointly charged and separately convicted of the theft. Only Favell appeals. On trial before the court, without a jury, just the State offered evidence. Defendant Favell then moved for discharge because of insufficient evidence to support his conviction, but the court denied his motion. After being found guilty, Favell renewed his motion for discharge and alternatively moved for a new trial. The only point made was the sufficiency of the evidence. The after-trial motion was denied, and judgment and sentence followed. Favell appeals, but he has not filed a brief. So, we limit our review to the single point raised in his after-trial motion and those matters specified in Rules of Criminal Procedure, §§ 28.02 and 28.08, V.A.M.R. State v. Holbert, Mo.App., 399 S.W.2d 142 [1].

To determine the sufficiency of the evidence to sustain the conviction, we consider as true the evidence favorable to the State and the favorable inferences reasonably flowing from that evidence. State v. Lee, Mo., 404 S.W.2d 740[6]. In that light, the State’s evidence:

Ira Schroeder, owner of the typewriter, operated a welding shop on Washington Avenue in St. Louis. The shop had an office area in front and a work area at the rear; the typewriter, worth about $40, was in the office about ten feet from the front door. Mr. Schroeder’s son Peter worked in the front office and Mr. Schroeder in the rear of the shop.

Peter Schroeder was alone in the office area using the typewriter when Nelson Johnson came in asking for work. He sent Johnson to the rear of the shop to “talk to the boss.” While Johnson and Mr. Schroeder were in the back, Peter Schroeder left the office by the front door to move a parked truck. He did not see defendant Favell as he went out, but when he started the truck motor he saw Favell standing on the front step outside the office door.

Meanwhile, in the back of the shop Mr. Schroeder was at work when Johnson came to him from the office area to ask for a job. No work was available, so Johnson returned to the front of the shop; Mr. Schroeder saw him leave the building by the front door. By then, Peter Schroeder had left the office unoccupied. A few minutes later Mr. Schroeder went up front; no one was in the office, and the typewriter was gone. A short while later Mr. Schroeder saw defendant Favell for the first time — when the police returned with Johnson, Favell, two other men and the typewriter.

Police Officer Carl Hallgren was cruising the neighborhood when he saw Mr. Schroeder and others congregated in front of the welding shop. Apparently they told him of the missing typewriter, for he drove off in search of suspects. As Officer Hall-gren reached an alley in back of the welding shop he saw four men walking eastward in the alley, about 250 feet away from him. He did not notice any of them carrying anything. The officer radioed for help and drove around to head off the four men at Ewing Street, two blocks from Schroeder’s shop. He arrested them as they emerged from the alley — one of the men was Johnson, one was defendant Favell, and the other two were unidentified. At this point Officer Hallgren still did not see any of the men carrying anything. Soon other policemen arrived at the scene, and they took charge of the four men while Officer Hallgren searched the area. Twenty-five feet back up the alley from where the men had emerged, Officer Hallgren found Mr. Schroeder’s typewriter, enclosed in a cardboard box. This was all the evidence.

All persons who participate in a misdemeanor, either as principals or accomplices, are equally guilty. State v. Muchnick, Mo.App., 334 S.W.2d 386[1]. However, a difficulty arises here because the State has not filed a brief and we do not know whether it contends Favell is guilty as a principal or guilty as Johnson’s accomplice. So, we will examine the sufficiency of the evidence to support defendant Favell’s conviction in each capacity — first as a principal and then as an accomplice.

The evidence does not show Favell entered the welding shop or that he saw or could have seen the typewriter inside. We do not know how long the office was unoccupied, only that no one was there when Johnson left by the front door. There was no evidence that defendant Favell was ever in possession of the typewriter. The only evidence connecting him with the theft was his proximity to the welding shop office before the typewriter was stolen, and his presence nearby with three others when the typewriter was found in the alley. To convict Favell as a principal, the evidence must go beyond mere suspicion; his innocence is presumed until overcome by substantial evidence showing him guilty beyond a reasonable doubt. And where guilt of stealing depends on circumstantial evidence, as it does here, the evidence must not only be consistent with guilt but inconsistent with innocence. 9 Mo.Digest, Criminal Law We hold that the evidence was insufficient to show Favell guilty as a principal. No two stealing cases are the same, but our conclusion has been influenced by the results reached in the cases of State v. Holt, Mo., 106 S.W.2d 466; State v. Murphy, 356 Mo. 110, 201 S.W.2d 280; State v. Rawson, Mo., 259 S.W. 421; and State v. Dilley, 336 Mo. 75, 76 S.W.2d 1085.

What then about Favell as an accomplice ? To answer this we will assume the evidence is sufficient to support a stealing conviction against Nelson Johnson. All persons who participate in a misdemeanor are equally guilty. State v. Much-nick, supra. A corollary to this is tersely stated in State v. Thompson, 293 Mo. 116, 238 S.W. 786[2]: “Where it is sought to hold one person responsible for the act of another, it ought to be shown that he authorized such act or in some way aided or directed it.” There is no evidence here that defendant Favell authorized or planned the theft. If he is guilty it must be because he participated by aiding or abetting Johnson in stealing the typewriter. Kansas City v. Lane, Mo.App., 391 S.W.2d 955 [2], In that case, and in State v. Castaldi, Mo., 386 S.W.2d 392[1-3], the court quoted Judge Learned Hand in United States v. Peoni, 2 Cir., 100 F.2d 401 1. c. 402. “In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ ”

Here is the only evidence connecting defendant Favell with Johnson and the theft: Favell was seen momentarily outside the Schroeder welding shop while Johnson was inside; Favell was next seen two blocks away, apparently empty-handed, walking down an alley with Johnson; Favell was still with Johnson when arrested at a place 25 feet away from where the typewriter was found in the alley. By contrast, there was no evidence that defendant Favell kept a lookout for Johnson, nor that he knew Johnson had stolen the typewriter, nor that he assisted Johnson in asportation or escape, nor that Favell himself was ever in possession of the typewriter. These are the usual acts of aiding and abetting larceny, and we do not find them here.

It is not enough that the evidence casts suspicion on defendant Favell. The crucial point is that the evidence fails to show beyond a reasonable doubt that Favell participated in the theft or that he sought in any way to make it succeed. At most, we may infer that Favell was present during asportation — that is not enough. Compare State v. Mathis, Mo.App., 129 S.W.2d 20, where the defendant was in a store with a shoplifter, looked on while the shoplifter stole clothing and jewelry, and then hurriedly left the store with the shoplifter. Also compare State v. Castaldi, supra, and State v. Bresse, 326 Mo. 885, 33 S.W.2d 919[5].

Having decided that the evidence was insufficient to show Favell’s guilt as a principal, we also declare it insufficient to show his guilt as an accomplice.

The judgment is reversed and defendant Favell is discharged.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, it is ordered that the judgment be reversed and that defendant Clifford Favell be discharged.

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


author: TOWNSEND, Commissioner.

text:
    The STATE of Missouri at relation of TRANSIT CASUALTY COMPANY, Relator, v. Honorable Ivan Lee HOLT, Jr., Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent.
    No. 32467.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.

      Emmett M. O’Brien, George A. Adolf, St. Louis, for relator.
    Murphy & Roche, Donald L. Schlappriz-zi, St. Louis, for respondent.
   TOWNSEND, Commissioner.

Relator, insurance carrier of an employer, Associated Transports, Inc., has paid the injured employee Silvey substantial sums as permanent partial disability and disfigurement benefits under the Workmen’s Compensation Act as well as medical payments under the act.

The injured employee brought his action against the alleged tort-feasor, Missouri Pacific Railroad Company, on March 31, 1964. That case was successively set for trial on September 28, 1964 and February 1, 1965; it was eventually tried on March 8, 1965, resulting in a verdict and judgment for the employee. In June, 1965, the verdict and judgment were set aside as being against the weight of the evidence. The case was set again for trial on December 13, 1965. On December 7, 1965, relator filed its motion and petition to intervene as additional party plaintiff. On December 9, 1965 the employee-plaintiff filed his motion to strike relator’s motion to intervene; on the same day the motions were argued and the motion to strike relator’s motion and petition was sustained on the ground that relator’s motion was untimely filed. Application for mandamus followed and the alternative writ issued on December 9, 1965.

Relator relies upon those parts of Rule 52.11(a), V.A.M.R., which provide:

“(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; * *

To show relator’s interest in the pending action brought by the injured employee Silvey against the Missouri Pacific Railroad Company, relator’s brief quotes the content of Section 287.150(1), V.A.M.S.:

“1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation.”

Under Rule 52.11(a), relator’s right to intervene is made dependent upon the conjunction of three conditions precedent — (1) timely application, (2) inadequate representation of applicant’s interest by existing parties and (3) the possibility that applicant may be bound by a judgment in the action. Taking these conditions in inverse order, it is apparent-tbat relator would be bound by the outcome of Silvey’s action against Missouri Pacific. State ex rel. Royal-McBee Corp. v.. Luten, Mo.App., 390 S.W.2d 931. Under Section 287.150(1) the employer’s right against the third party tort-feasor is wholly derivative; it is conditional upon the existence of a cause of action in the injured employee against the tort-feasor (“ * * * such employer may recover any amount which such employee * * * would have been entitled to recover”) and hence a judgment against the injured employee and in favor of the alleged tort-feasor would defeat any claimed right of subrogation. The employer has no separate cause of action for the subrogation claim. O’Hanlon Reports, Inc. v. Needles, Mo.App., 360 S.W.2d 382; State ex rel. Royal-McBee Corp. v. Luten, supra. Thus, the third condition precedent of Rule 52.11 (a) is satisfied.

As to the second condition precedent, namely, adequate representation of relator’s interest, there is nothing in the record before us which would indicate that Silver’s prosecution of the action against Missouri Pacific would not adequately represent relator’s interest in the trial of the case. Under the statute relator’s interest is something that is carved out of the injured employee’s interest. We cannot assume that plaintiff and his counsel would not prosecute his action with that combination of ability and vigor which would afford him an able presentation of his own case and produce the maximum results. The more capably the action is handled and damages shown in the plaintiff’s own behalf the greater is the protection given the employer’s statutory interest. We repeat that there is notihng shown here to suggest that plaintiff employee would not adequately represent his own interest (and necessarily relator’s) at the trial of the case.

Adequate representation of relator’s statutory interest does not require that there be presented in the tort case the fact that certain sums have been awarded the plaintiff-employee in a Workmen’s Compensation proceeding. Since the employer’s right is wholly derivative it is not material to the question of the alleged tort-feasor’s liability that employer has paid any sum to the plaintiff-employee. Insofar as the issue of liability as between plaintiff-employee and alleged tort-feasor is concerned, the award in the compensation case is irrelevant. Presentation of the facts giving rise to relator’s interest would inject into the tort case an element entirely foreign to such issue. However relator’s brief argues that if intervention in the case of Silvey against the Missouri Pacific is not allowed, “its proven interest in that case would not be presented.” Relator even misquotes Rule 52.11(a) to read “when the presentation of the applicant’s interest by existing parties is or may be inadequate * * Under the rule the test is not one of adequacy of presentation of relator’s interest; the criterion is one of adequacy of the representation of relator’s interest. If by presentation the relator means the display to the trier of fact of the whole picture of the creation of intervenor’s interest then clearly such evidence is not admissible. Cf. Pritt v. Terminal R. R. Ass’n, Mo., 251 S.W.2d 622 [3], [4], [5].

However the Court is of opinion that Rule 52.11(a) (2) was designed not alone to assure adequate representation of the intervenor’s interest in the trial of the tort case but also to give such protection to that interest as intervention will provide after trial and even in the absence of trial. Thus, once the intervenor has been joined as party plaintiff an attempted dismissal of the action by the plaintiff employee would not prevent the intervenor plaintiff from proceeding to judgment against the defendant, thereby protecting the intervenor’s interest against a settlement between plaintiff employee and tort-feasor in the course of trial or even before trial and so obviating the result reached in O’Hanlon Reports, Inc. v. Needles, supra. Likewise, if, after intervention, there is a judgment against the defendant, that judgment is in favor of both plaintiffs and defendant cannot defeat the statutory interest of intervenor by making payment to the employee plaintiff alone. We think that such objectives are within the intent of the rule in its contemplation of possible inadequate representation. Without intervention the interest of the employer and insurer are not adequately represented under such possible circumstances of dismissal, settlement or payment.

The stated ground for the trial court’s striking of the motion to intervene was that such motion was not timely made. The rule and the relative statute furnish no guidelines for the determination of timeliness. We have found no pertinent precedents. Like reasonableness, timeliness (where not specified by statute, rule or order) is a relative matter, depending on the circumstances of each particular instance in which it is asserted that timely action was not taken. In general it may be said that the concept comprehends the principle that delay by a litigant should not be allowed to unfairly inconvenience or disadvantage another. Such a test raises the question of possible prejudicial effect upon the other. Here the intervenor had many months within which it could have filed its motion to intervene if so inclined but waited until five days before the trial date to do so. Yet we perceive no prejudice to plaintiff employee arising from such inordinate delay. We have been informed of no reason why the case could not have gone to trial on the date for which it had been set, if the motion to intervene had been granted. Hence the intervention was timely.

Finding that the three conditions precedent to the right to intervene were satisfied, the motion to strike intervenor’s motion should have been denied and the motion to intervene should have been granted.

The Alternative Writ of Mandamus is made permanent and Respondent is directed to allow Relator to intervene in Case No. 62977E, Silvey v. Missouri Pacific Railroad Company.

PER CURIAM.

The foregoing opinion by TOWNSEND, C, is adopted as the opinion of this Court. Accordingly, the Alternative Writ of Mandamus is made permanent and Respondent is directed to allow Relator to intervene in Case No. 62977E, Silvey v. Missouri Pacific Railroad Company.

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

      . Relator was also the insurer of the employer in respect to damage to employer’s property. Employer brought its action against the alleged tort-feasor for damage to its property arising out of the same incident as that in which the employee was injured. Consolidation--of the two actions was ordered in November 1965. Respondent’s return asserts that relator appeared in opposition to the consolidation and that not until December 9, 1965, did relator ever appear for the purpose of intervention.


author: BRADY, Commissioner.

text:
    Molly UMANSKY, Plaintiff-Appellant, v. Benjamin UMANSKY, Defendant-Respondent.
    No. 32371.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.

      Schaeffer & Schaeffer, Milton W. Schaeffer, Clayton, for plaintiff-appellant.
    Michael Jos. Hart, St. Louis, for defendant-respondent.
   BRADY, Commissioner.

The trial court dismissed plaintiff’s petition for separate maintenance on the grounds of lack of jurisdiction. The plaintiff appeals.

Plaintiff’s petition for separate maintenance states that she and the defendant were married in March of 1934 in the City of Chicago, Illinois, and lived together as husband and wife until November of 1954; that “Defendant has abandoned and deserted Plaintiff and the children born of the marriage and is continuing to abandon them and fail to support them to date.”; that defendant is a resident of the County of St. Louis, State of Missouri; that he is now living in said county and state with another woman in “open and notorious adultery”; that he has fathered a child by said woman; that defendant is a man of “means and property”; “ * * * and that this Honorable Court has jurisdiction of this matter by reason of Missouri Revised Statutes 1959, Section 452.050, in that the actions complained of are continuing and occuring in the State of Missouri.”

Defendant’s counsel appeared specially and filed a motion to dismiss which alleged the petition “ * * * fails to state a cause of action for separate maintenance * That motion states two reasons in support of its contention the trial court is without jurisdiction in this matter. These are that since plaintiff is not a resident of this state and was not such prior to the filing of this petition, the court is without jurisdiction; and that since it appears from the petition that the alleged abandonment of the plaintiff occurred in the State of Illinois in November of 1954, the trial court is without jurisdiction of the subject matter. There is no dispute as to the defendant’s residence within the County of St. Louis.

Before proceeding to the merits it is necessary to dispose of defendant’s motion to dismiss this appeal which is based on the contention that plaintiff has failed to comply with Supreme Court Rule 83.05(c) in that the statement of facts contained in plaintiff’s brief includes irrelevant material. The material characterized as irrelevant deals with matters which are not contained in the transcript filed with this appeal and are irrelevant to the issues here presented such as the proceedings, testimony and disposition of the pendente lite proceedings. However, the statement of facts as found in plaintiff’s brief is otherwise a faithful compliance with Civil Rule 83.05(c), supra, and the superfluous material can easily be disregarded. The motion to dismiss the appeal is overruled.

There was no separate maintenance at common law and an action for such relief is established in this state by the provisions of § 452.130 RSMo 1959, V.A.M.S. (All further citations to the statutes will be to RSMo 1959, V.A.M.S.) Other pertinent statutes include § 452.240 providing that “The petition of a married woman for any of the purposes before mentioned may be filed and the case heard and determined in the circuit court, and the like process and proceedings shall be had as in other civil suits. (R.S.1939, § 3382).” § 508.010(1) states that when the defendant is a resident of this state, suits instituted by summons shall, except as otherwise provided by law, be brought in the county within which the defendant resides.

It is true that the plaintiff’s petition refers specifically to § 452.050. However, the prayer of the petition is for separate maintenance, alimony, custody of the minor child born of the marriage, support for that child, and attorneys’ fees. There is no prayer for divorce and the petition does not contain any reference to that relief. Plaintiff’s counsel’s error in his reference to the proper section of the statute cannot be held to overweigh the plain language of the petition which is couched unmistakingly in the terms of separate maintenance. However, it is clear from this reference to our statutes that defendant is proceeding under Missouri law rather than that of Illinois.

Defendant advances two arguments in support of his contention the trial court properly dismissed plaintiff’s action. Candidly admitting the existence of State ex rel. Rodgers v. White, 239 Mo.App. 838, 201 S.W.2d 781, he in effect seeks to have that case overruled and reargues the various points expressly disposed of by the court in Rodgers, supra. There is no need to burden this opinion with a rehash of why §§ 452.040 (requiring proceedings to be had in the county where plaintiff resides) and 452.050 (dealing with residential requirements necessary to maintain a divorce action) are inapplicable to actions for separate maintenance. The very arguments advanced by defendant are set forth at length in the opinion in Rodgers, supra, and the fallacy inherent in each of them is therein succinctly pointed out. It is sufficient to state it was specifically held in Rodgers, supra, that § 508.010(1), (then § 871, RSMo 1939, Mo.R.S.A.), is applicable to actions for separate maintenance while § 452.040, (then § 1515, RSMo 1939, Mo.R.S.A.), is applicable only to divorce actions and not to separate maintenance actions. The reasoning by which the court reached that result was sound when the opinion was handed down and remains so to this date. We concur both with the reasoning and with the result reached in Rodgers, supra, and find it determinative of this issue. Plaintiff was entitled to proceed under § 508.010(1).

Defendant then contends, to quote from the motion to dismiss, “It appears from the fact (sic) of the petition * * * the * * * abandonment * * * occurred in Illinois * * Accordingly, to use the language of § 452.130, he argues defendant did not “ * * * abandon his wife, and refuse or neglect to maintain and provide for her, * * * ” in Missouri and therefore plaintiff has no right of action under Missouri law which she can assert in this state. In support of that contention defendant’s counsel cites criminal cases which hold that, in a criminal prosecution for abandonment where the evidence showed the final separation occurred in another state, the offense was one against the laws of that state and not Missouri. See State v. Shuey, 101 Mo.App. 438, 74 S.W. 369. That is also the rule as to criminal cases in Illinois and is the general rule. See People v. Heise, 257 Ill. 443, 100 N.E. 1000; Ex parte Roberson, 38 Nev. 326, 149 P. 182, L.R.A.1915E, 691; State v. Wellman, 102 Kan. 503, 170 P. 1052, L.R.A. 1918D, 949; State v. Nesmith, 185 S.C. 341, 194 S.E. 160. The inapplicability to civil cases of the reasoning upon which the decision in those and similar cases was based would seem obvious. The act of abandonment sufficient to sustain a criminal prosecution may be complete when one spouse first leaves the other and first refuses or neglects to provide and maintain for the latter, but that rule is bottomed upon the requirements of certainty as to venue, as to the date the offense occurred, and as to the punishment set forth in the applicable statute for each offense; all of which are necessary adjuncts to criminal proceedings. (See §§ 559.353 and 559.356 of our criminal laws.) Those reasons are not present in a civil proceeding in such strength as to lead to the same result.

It should be noted that Webster’s Third New International Dictionary when defining the word “abandonment” gives the following meaning: “desertion of a spouse with the intention of creating a permanent separation.” In like manner that same source defines the word “desertion” as “abandonment of a person to whom one is obligated or bound by agreement.” The words are practically synonymous in meaning and use. In divorce proceedings desertion is a continuing offense regardless of removal of one of the parties to a state other than that in which they resided prior to the desertion. See Mullenband v. Mullenband, 137 Ark. 505, 208 S.W. 801 and Colburn v. Colburn, 70 Mich. 647, 38 N.W. 607. There is no doubt that desertion is a continuing ground for divorce in Missouri. See § 452.010, and cases collected at Note 153. There is no reason for the courts to indulge in any exercise in semantics when confronted with the word "abandonment” in a case for separate maintenance. In such a case the word is synonymous with desertion and is a continuing offense.

However, there is another reason defendant’s argument on this issue must fail. The motion to dismiss incorrectly alleges the face of the petition shows the abandonment to have been committed in Illinois. Plaintiff’s petition does not allege an abandonment in November of 1954 in Chicago, Illinois. It does allege these parties were married in Chicago ánd lived there as husband and wife until November of 1954. However, when stating the grounds upon which a decree of separate maintenance is prayed, the petition alleges defendant's abandonment and refusal or neglect to maintain or provide for plaintiff and the child as continuing to the date of the petition. The time involved must, under the undisputed facts, include defendant’s actions while a resident of Missouri. There are two elements of abandonment; abandonment and refusal or neglect to support. Both must be proved. § 452.130 and cases cited at Note 14. Whether the allegation defendant’s abandonment is continuing in this state can be substantiated is a matter that will have to be developed at the trial of this cause by proper proof as to both elements. Here the trial court has dismissed the plaintiff’s petition and as a result the facts that would bear upon a determination of whether or not' the defendant while a resident of Missouri did in fact commit such acts as to constitute abandonment are absent from this transcript. In any event and for either or both of the reasons above stated defendant’s contention is without merit.

The motion to dismiss was erroneously sustained. The judgment should be reversed and the cause remanded to the trial court with directions to overrule the defendant’s motion to dismiss.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment should be reversed and the cause remanded to the trial court with directions to overrule the defendant’s- motion to dismiss.

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


author: DOERNER, Commissioner.

text:
    Warren JACKSON, d/b/a Trailer Refrigeration Service, Plaintiff-Respondent, v. Edwin L. KUSMER, d/b/a North Broadway Service Station, Defendant-Appellant.
    No. 32473.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.
    Morris B. Kessler, St. Louis, for defendant-appellant.
    Forgey & Sindel, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff, the holder of a chattel mortgage on a trailer and a refrigeration unit installed therein, instituted this action in replevin to obtain possession of such equipment. In his counterclaim defendant asserted an artisan’s lien or liens for two accounts totaling $798.81, for work and labor performed on the trailer. The court, sitting without a jury, adjudged defendant entitled to recover only the sum of $106.33 from plaintiff and the surety on his bond, from which judgment defendant appealed.

The case was tried in an unusual manner. Each party filed a memorandum of the facts and the law with the court, and then accepted the statement of facts as related by his opponent. The memoranda and stipulation are included in the transcript. The pertinent facts, as gleaned from those sources, are these: At some undisclosed time one Riley E. Tate, the owner of the trailer and refrigeration unit, executed a chattel mortgage thereon to plaintiff. The instrument was filed' in Indiana, where Tate resided, and in Oklahoma, where plaintiff is located, but it was never filed or recorded in Missouri. Thereafter, on or about November 19, 1962, defendant, at its place of business in St. Louis, made repairs and performed various work on the trailer, in the amount of $577.48, pursuant to a written memorandum signed by Tate. While defendant was repairing the trailer, and after the work had been completed, defendant (apparently on several occasions) permitted Tate to use the trailer to enable him to earn money to pay defendant’s repair bill, but Tate was required to and did return the trailer to defendant after each such use. Tate paid $50.00 on account on the repair bill. On April 3, 1963, while the trailer was in defendant’s possession, Tate by a second written memorandum ordered additional repairs in the amount of $106.33, which defendant performed and completed by June 25, 1963. Tate thereafter became ill and died, and the trailer remained in defendant’s possession until August 27, 1963, when it was taken from defendant and delivered to plaintiff under the writ of replevin.

Plaintiff conceded below, and the trial court found, that defendant was entitled to a lien in the amount of $106.33 for the repairs ordered by Tate on April 3, 1963. Thus only the work performed by defendant pursuant to the written memorandum of November 19, 1962, is involved in the controversy. Plaintiff maintains, and the trial court apparently agreed, that defendant was asserting a common law artisan’s lien, and that by delivering possession of the trailer to Tate defendant lost its lien, even though Tate’s possession was only temporary and obtained under a promise to return the vehicle, which promise he kept. Plaintiff might be on firmer ground if defendant was in fact asserting a common law lien. For a common law artisan’s lien depends on possession and the general rule is that the lien is lost if the lienholder voluntarily parts with possession of the vehicle to which it attaches. State ex rel. Rueseler Motor Co. v. Klaus, Mo.App., 263 S.W.2d 71. It has been held in some jurisdictions, however, that continuous physical possession of the vehicle is not a prerequisite to the retention of the common law lien, and that a temporary delivery to the owner, conditioned upon his promise to return the vehicle, is not such a surrender of possession as will deprive the artisan of his lien. Winton Co. v. Meister, 133 Md. 318, 105 A. 301; Consumers Petroleum Co. v. Flagler, 310 Ill.App. 241, 33 N.E.2d 751; Albemarle Supply Co. Limited v. Hind & Co., L.R. (1928), 1 K.B. 307; 61 C.J.S. Motor Vehicles § 747, p. 894; Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., Vol. 7A, § 5124, p. 699. The proposition that to waive the lien the surrender of possession must be both unconditional as well as voluntary has received some support in Missouri. Hughes v. Aetna Ins. Co., Mo., 261 S.W.2d 942, 951; Pallen v. Bogy, 78 Mo.App. 88.

It appears that in his counterclaim defendant merely asserted his right to possession of the trailer under “an artisan’s lien”, without specifying whether he claimed under a common law lien or under the statutory lien created by Section 430.020, RSMo 1959, V.A.M.S. But in his memorandum in the trial court he indicated, and in this court he maintains, that he is entitled to a statutory lien. That section provides, in part, that “ * * * every person who furnishes labor or material on any vehicle, part or equipment thereof, who shall obtain a written memorandum of the work or material furnished, or to be furnished, signed by the owner of such vehicle, part or equipment thereof, shall have a lien for the amount of such work or material as is ordered or stated in such written memorandum. * * * ” And Section 430.-040 reads:

“1. No person shall have the right to take any such vehicle, part or equipment thereof, or any such horse, mule or other animal out of the custody of the person having such lien, except with the consent of said person, or upon paying the amount, lawfully due, for keep, storage, labor or material.
“2. Such lien shall be valid against such vehicle, part or equipment thereof, or against such horse, mule or other animal in the possession of any person receiving or purchasing the same, with notice of the lien claim; provided, however, that such lien shall not take precedence over or be superior to any prior lien on said property, created by any chattel mortgage on the same, duly filed or recorded in accordance with the laws of this state, without the written consent of the mortgagee or the legal holder of said chattel mortgage.”

It is now firmly established that Common law liens have not been abolished by virtue of the enactment of those statutes; and that their principal effect has been to enlarge upon common law liens, in that if the artisan obtains a written memorandum from the owner his lien will continue, even after he has parted with possession of the vehicle, as against a purchaser or other person who takes possession with notice of the lien. State ex rel. Rueseler Motor Co. v. Klaus, supra; Mc-Cluskey v. De Long, 239 Mo.App. 1026, 198 S.W.2d 673; Bostic v. Workman, 224 Mo.App. 645, 31 S.W.2d 218. In the instant case the parties stipulated that defendant obtained a written memorandum signed by Tate for the work performed as of November 19, 1962. The temporary and conditional transfer of the trailer to Tate did not, therefore, defeat defendant’s lien, for Tate was aware of it. Hence defendant’s lien on the vehicle, then in its possession, was still valid and binding on August 27, 1963, when plaintiff obtained possession of it by virtue of the writ of replevin. By the stipulation the plaintiff has also agreed to the fact, as stated in defendant’s memorandum, that “ * * * the plaintiff herein knew of the artisan’s lien asserted by the defendant at the time of the Replevy * * Consequently, since § 430.040(2) provides that the statutory lien on a vehicle shall be valid against * * * any person receiving * * * the same, with notice of the lien * * * ” defendant’s lien was effective and binding against plaintiff, unless plaintiff’s prior chattel mortgage took precedence over defendant’s lien.

The concluding clause of § 430.040 (2) provides, in effect, that unless the written consent of the mortgagee or legal holder of the chattel mortgage is obtained, the statutory lien shall not take precedence over a prior chattel mortgage “ * * * duly filed or recorded in accordance with the laws of this state, * * *.” The agreed facts here are that the chattel mortgage executed by Tate was recorded in Indiana, where he resided, and in Oklahoma, where plaintiff is located, but that it was never filed or recorded in Missouri. The question of whether a prior foreign chattel mortgage never filed or recorded in Missouri is entitled to precedence over a statutory artisan’s lien created in Missouri has been answered in the negative by this court in Mack Motor Truck Corp. v. Wolfe, Mo. App., 303 S.W.2d 697. For as we pointed out in that opinion, it has long been the rule in this state that a Missouri common law artisan’s lien takes precedence over a prior recorded Missouri chattel mortgage. Kirtley v. Morris, 43 Mo.App. 144; Stone v. Kelley & Son, 59 Mo.App. 214; Birmingham v. Carr, 196 Mo.App. 411, 197 S.W. 711; and while presumably aware of those declarations at the time it enacted § 430.040, the General Assembly elected to provide only that chattel mortgages duly filed or recorded in conformity with Missouri law should take precedence over an artisan’s statutory lien. Never having been filed or recorded in Missouri, plaintiff’s prior chattel mortgage is not, therefore, entitled to precedence over defendant’s statutory artisan’s lien.

From what we have said it follows that the judgment should be reversed and the cause remanded to the trial court with directions to enter a judgment against the plaintiff on his petition, and for the defendant on his counterclaim, in the sum of $633.81, the agreed value of the repairs made, or for the return of the trailer and refrigeration unit by plaintiff to defendant until said amount is paid, according to the -option of the' defendant. Mack Motor Truck Corp. v. Wolfe, supra; McCluskey v. De Long, supra.

PER CURIAM.

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

Accordingly, judgment is reversed and the cause remanded to the trial court with directions to enter a judgment against the plaintiff on his petition, and for the defendant on his counterclaim, in the sum of $633.-81, the agreed value of the repairs made, or for the return of the trailer and refrigeration unit by plaintiff .to defendant until said amount is paid, according to the option of the defendant.

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


text:
    Florence E. McGRATH, Dependent Widow of Thomas B. McGrath, Deceased Employee, Appellant, v. RAILWAY EXPRESS AGENCY, INC., Employer, and Aetna Casualty and Surety Co., Insurer, Respondents.
    No. 32255.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.

      Gene R. Spengel, Jr., Joseph Fitzhenry, St. Louis, for appellant.
    Luke, Cunliff, Wilson, Herr & Chavaux, William J. McCluggage, St. Louis, for respondents.
   DOERNER, Commissioner.

This claim for compensation under our Workmen’s Compensation Law was filed by Florence E. McGrath, the widow of Thomas B. McGrath, a former employee of Railway Express Agency, Inc. in St. Louis. On April 5, 1962, towards the end of his work day, McGrath, a chauffeur, was discovered lying alongside the truck he had operated, which had been backed up to his employer’s loading dock. He died early the next morning from a subdural hemorrhage, subsequent to a fractured skull, according to an autopsy performed by the Coroner’s physician. The claimant alleged in her claim that the employee had slipped while climbing from the truck to the employer’s loading dock. This was denied by the employer and its insurer, and the actual and sole issue in dispute was whether the injury arose out of and in the course of the employment. The referee found in favor of claimant, but upon appeal by the employer and insurer the Industrial Commission entered a final award in which it found that the employee died from conditions secondary to an idiopathic fall, that the evidence failed to show any hazard or special risk from such a fall peculiar to the employment, and denied compensation, citing Howard v. Ford Motor Co., Mo.App., 363 S.W.2d 61. The claimant then appealed to the Circuit Court, which affirmed the award, and has now sought our review.

The parties are in accord as to the applicable law. Claimant asserts, and the employer and insurer concede, that when, as here, an employee is found injured at a place where his duty required him to be a rebuttable presumption arises that he was injured in the course of and in consequence of his employment. Toole v. Bechtel Corp., Mo., 2A S.W.2d 874; Duff v. St. Louis Mining & Milling Corp., 363 Mo. 944, 255 S.W.2d 792; Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165. For their part, the employer and insurer maintain, and claimant agrees, that such presumption, being merely procedural, disappears when the employer produces substantial rebutting evidence on the issue of how the injury occurred, and that thereafter the issue must be determined solely on the evidence as though no presumption had ever existed. Kelley v. Sohio Chemical Co., Mo., 392 S.W.2d 255; Toole v. Bechtel Corp., supra; Duff v. St. Louis Mining & Milling Corp., supra. Where they differ is in their view of the evidence. Claimant argues that the employer and insurer did not produce substantial credible evidence of how the injury occurred, while the employer and insurer contend to the contrary. Thus the controversy between the parties really devolves into the questions of whether there was competent and substantial evidence to support, the finding of the Commission, in effect, that the deceased did not die from an injury which arose “out of” his employment, and whether that finding is contrary to the overwhelming weight of the evidence. Section 536.140, RSMo 1959, V.A.M.S.; Corp v. Joplin Cement Co., Mo., 337 S.W.2d 252; Brown v. Anthony Manufacturing Co., Mo., 311 S. W.2d 23. It is appropriate to stress that in determining those questions we must view the evidence, including all legitimate inferences to be drawn therefrom, in the light most favorable to the award made by the Industrial Commission; Snowbarger v. M. F. A. Central Co-op., Mo., 349 S.W.2d 224; and that we may not substitute our judgment on the evidence for that of the Commission. Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292; Snowbarger v. M. F. A. Central Co-op., supra; Marie v. Standard Steel Works, Mo., 319 S.W.2d 871.

At the time of his death, on April 6, 1962, McGrath was 59 years of age and had been continuously working for the employer for a period of 26 years. He had been treated for emphysema by Dr. Joseph Vacca, his own physician, for several years prior to his death, and by at least 5 different doctors during the 6 years preceding that event. In 1960 he was off work 24 days and in the hospital 5 days because of emphysema and bronchitis; in 1958 he was off work for the same condition for a period of 17 days; and in 1956 he was off work for a, period of 3 months and 5 days because of emphysema and arthritis. As a chauffeur for the employer his duties were to deliver packages and parcels to the addresses to whom they had been sent, and to pick-up similar freight from those who desired to send it to others. For that purpose he drove a Dodge delivery van, and his work day was from 9:30 A.M. to 6:00 P.M. Pick-ups made during the day were normally unloaded by him at the employer’s loading dock, which had doors numbered 1 through 27, all of which were double doors. Billed freight was unloaded at certain doors and unbilled .freight at others.

Neither party produced an eye-witness to the occurrence. Claimant called as her witness J. S. Shaffer, the employer’s supervisor of vehicle service and the deceased ■ employee’s immediate supervisor, who testified that at about 5:05 P.M. he talked to McGrath at Door 1. At that time Mc-Grath’s truck was partially loaded with his pick-ups for the day, and was backed up to Door 1, where he had taken something off. Shaffer related that in the course-of making a routine inspection he then talked to other drivers, and McGrath pulled his truck out. About 3 to 5 minutes later another chauffeur, Pete Bowe, came up and said that McGrath had flipped out on the street. He went to Door 8, where McGrath’s truck was backed up to the loading dock, and saw McGrath lying on the pavement. He was about 15 or 20 inches from the left or driver’s side of the van, with his feet approximately 4 to 4½ feet from the dock, or a little farther, and his head almost even with the door of the truck. The door was closed, the motor was off, and the brakes were set. It was developed that some drivers got out on the left side of their trucks, others on the right and that normally, after parking, it would have been McGrath’s duty to go up on the loading platform, which was about 40 inches above the pavement, to unload his truck. Steps from the pavement to the loading platform were located between doors 9 and 10, and at other doors the drivers usually ascended from the pavement by stepping onto a step on the truck, about 18 or 20 inches high, and then stepping onto the loading dock.

Shaffer stated that about a minute or so after he reached McGrath he asked him to which hospital he desired to be taken, City Hospital or Incarnate Ward. Mc-Grath was then conscious and rational, recognized him, and replied that he wanted to be taken to the City Hospital. An ambulance had been called and shortly arrived, as did Officer John Jones, of the St. Louis Metropolitan Police Department, in a patrol car. Shaffer and Jones rode in the ambulance with McGrath to City Hospital No. 1. On cross-examination Shaffer testified that on the way to the hospital McGrath was conscious and rational and that:

“A * * * I asked Mr. McGrath if he could tell me what happened, I had to make out reports, did he try to get on the platform or what happened? He walked around the right side of the truck. As he walked around the front of his truck he doesn’t remember any more.
“Q Did you ask him specifically if he had try (sic) to get on the platform?
“A Yes, sir.
“Q What did he say?
“A Said, no, he hadn’t got that far.
“Q Did you ask him specifically if he had tried to climb on his truck to get on the platform?
“A He didn’t remember that. The only thing he remembered was going around the front of the truck. He hadn’t tried to climb up.
“Q Didn’t try to climb up on the platform of the truck ?
“A No.”

Shaffer also related that enroute to the hospital Officer Jones kept looking at Mc-Grath and remarked that he knew him from somewhere. Shaffer observed that Mc-Grath had run his route for several years and suggested that Jones might know Mc-Grath from being around the City Hospital. Jones negatived that suggestion and stated it was from some other place. At that point McGrath raised his head a little from the cot on which he was lying and said, “ * * * T see church.’ * * * ” Jones agreed that was right and recalled that McGrath was an usher there. After arriving at the hospital, Shaffer related, he inquired of McGrath whether he had turned in his tickets. McGrath said he had not, reached in his pocket, handed Shaffer his delivery schedule for the day, and stated that the abstracts which covered his pick-ups were in his truck. Shaffer found them there when he got back to McGrath’s truck.

The claimant also called Officer Jones as a witness on her behalf, who testified that he had been dispatched to investigate a “sick case” at the employer’s place of business. On arrival he found McGrath lying face-up, next to and on the left side of a truck, in an unconscious condition but later he became slightly conscious. There were no visible signs of injury. With Shaffer he accompanied McGrath to the City Hospital. On direct examination he was asked if while enroute he attempted to question McGrath and answered that he had but that, “ * * * I couldn’t get any responsive answers.” He also related that when they reached the hospital McGrath gave as his residence an address which it later developed was one where he had lived 10 years before. Jones described Mc-Grath as being in what he termed, “ * * * a dazed condition. He didn’t know where he was at the time”; and said that while McGrath’s speech itself was plain, what he said was incorrect. But other than that of the wrong address, there was no showing that McGrath had given any other incorrect answer. Still on direct examination, Jones was asked whether he had inquired of McGrath as to how he had been injured or happened to be lying on the ground, and after fixing the time as about 25 or 30 minutes after he had arrived at the loading dock, testified that McGrath stated he didn’t know. On cross-examination Jones stated that the regular procedure was to ask someone who was sick if they want to go to a hospital, and to obtain his permission to take him there, but that he couldn’t recall whether he had had such a conversation with McGrath. He also recalled that Shaffer attempted to talk to McGrath on the way to the hospital but couldn’t recall what the conversation was between them. He did recall, however, that he had recognized McGrath as an usher in the church, and that he had had a conversation with McGrath about that. Claimant introduced as her exhibit the police report made out by Officer Jones which described the type of report as a “sick case,” gave the cause as “Blackout,” and described the circumstances, as related to him by Shaffer, that McGrath had parked his truck at the loading dock, walked around his truck and passed out. On re-direct examination, by claimant, he was asked the source of his information, and answered:

“A Most of these — would be from the witnesses. The blackout, I believe, was from the witnesses and from Mr. Mc-Grath further stating everything went black, he didn’t remember what happened, and from the diagnosis from the hospital would be the ill health.
“Q Where did Mr. McGrath say that he had a blackout?
“A At the hospital; said just everything went black, he didn’t know what happened.”

Mrs. McGrath, the claimant, testified that two fellow-drivers called at her home, informed her that McGrath was in the hospital, and took her there. She asked him what had happened but, she stated, he couldn’t talk and couldn’t answer her. She and her brother-in-law arranged for Mc-Grath’s removal to the Firmin Desloge Hospital, and called Dr. Vacca to treat him. Over objection she was permitted to state that before leaving for work on the morning of April 5, 1962, her husband had said that he “felt fine that morning.” On cross-examination she identified her signature on a Group Hospital Insurance Form, dated May 4, 1962, in which the typewritten answer “No” appeared after the printed question, “Did ailment arise out of patient’s employment ?”

The statements made by McGrath to Officer Jones and Shaffer constituted substantial evidence. Toole v. Bechtel Corp., supra. There is not a scintilla of evidence, either in McGrath’s statements or elsewhere in the record, from which it could be inferred that he fell as he got out of his truck or as he attempted to climb up onto the loading dock. On the contrary, McGrath’s statements amply support the conclusion that he had gotten out of his truck and walked around it towards the loading dock but before reaching it had fainted or passed out, as a result of which he fell to the pavement and fractured his skull. In short, the Commission could reasonably find, as it did, that McGrath’s death was the result of an idiopathic fall. And as stated in Howard v. Ford Motor Co., Mo.App., 363 S.W.2d 61, 67:

“The majority rule in the idiopathic fall cases apparently is that the evidence must show a hazard connected with the employment not common to the general public or a special risk peculiar to the employment which caused or substantially contributed to cause the injuries, else liability does not arise. We believe that such is and ought to be the rule in this jurisdiction. * * * ”

The photographs introduced in evidence show that the area where McGrath was found lying was almost level and was paved with concrete. A floor, sidewalk or driveway so paved is not such a hazard or special risk peculiar to the employment as will justify an award of compensation for injuries resulting from an idiopathic fall. Howard v. Ford Motor Company, supra.

We hold that the findings of the Industrial Commission are abundantly supported by competent and substantial evidence. Duff v. St. Louis Mining & Milling Corp., supra; Mershon v. Missouri Public Service Corp., supra. The judgment of the Circuit Court affirming the award of the Commission is therefore affirmed.

PER CURIAM:

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

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