text:
    STATE of Missouri, Respondent, v. Bertrand J. HOLBERT, Appellant.
    No. 51640.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Bane Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Gene B. Rosen, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Arthur Litz, St. Louis, for appellant.
   EAGER, Judge.

Defendant was found guilty by a jury of the crime of carrying a concealed weapon, namely, a .32 caliber revolver; the jury was unable to agree on the punishment and the Court, acting under § 546.440, RSMo 1959, V.A.M.S. (to which revision all statutory citations will refer), sentenced defendant to a term of two years in the penitentiary. After an unavailing motion for new trial, he appealed. The appeal has wandered through a rather devious course; defendant was represented at the trial by privately employed counsel who withdrew after taking the appeal; his next employed counsel encountered difficulties with our disciplinary processes and surrendered his license. Considerable delay thus occurred before the filing of the transcript and thereafter we required that counsel be appointed to prosecute the appeal, in compliance with the ruling in Bosler v. Swenson (C.A. 8), 363 F.2d 154. Counsel was appointed and he has represented the defendant in a very efficient manner.

On July 24, 1964, at about 8:30 a.m., Officer Paul Heinzel, cruising near Hodia-mont and Theodosia in the City of St. Louis, noticed a congestion of traffic and went to that location. He found defendant sitting alone in his Chevrolet car, which was stalled in the middle of the intersection, blocking traffic; he got out and walked over to defendant and asked him what the trouble was. He then saw a “gun butt” sticking out of defendant’s left shirt pocket; defendant did not have on a coat. The officer at that time placed defendant under arrest for “carrying a gun,” reached in and took the pistol, had defendant get out of the car and handcuffed him; he found that the revolver, a .22 caliber of German make, was loaded and proceeded to search the defendant. He thus found a .32 caliber Iver-Johnson revolver fully concealed in defendant’s left rear trousers pocket; the officer then searched the car. He found another revolver, a .22 caliber Rohn, under the cushion of the front seat on the driver’s side; he also found a brief case containing about $3,700, a pair of binoculars and some radio equipment. Defendant was asked why he carried the guns and his answer was that it was done for his protection because he carried “a large amount of money around.” The officer recognized defendant as the operator of the West End Pharmacy nearby, and defendant stated that the' money represented receipts from the Pharmacy. For whatever it may be worth, the evidence showed that there was a bank two or three blocks from the scene. All three pistols were identified at the trial by the arresting officer; all were loaded when found. They were referred to in detail at the trial over objections, beginning with the State’s opening statement. They were displayed in marked bags on the counsel table during the trial, they were described and referred to in detail by the two police witnesses, they were all passed to the jury, and they were emphasized repeatedly in the State’s final arguments.

Sgt. Donald Brocksmith testified that he had examined, tested and fired all three of the pistols and that each was “operational,” i. e., it would fire. Counsel for defendant objected to the admission of the revolvers identified as Exhibits 1 (found in the shirt pocket) and 3 (found under the cushion), but when Exhibit 2 (the Iver-Johnson found in defendant’s hip pocket which was the basis of the present charge) was offered, defendant’s counsel said to the Court: “I have no objection to the introduction into evidence of State’s Exhibit 2”; he then made detailed and very specific objections to the other two guns, principally for the reasons that they were irrelevant, that they tended to prove other offenses, that they were not admissible to prove intent on the present charge, and that they were inflammatory and were offered to create prejudice. The Court overruled the objections.

At the close of the State’s evidence defendant’s motion for acquittal was overruled and he offered no evidence. Prior to trial, defendant had filed and presented a motion to suppress evidence of the articles taken from his person and his car at the time of his arrest; this was done on the theory that the officer had no warrant for his arrest, that defendant was committing no act which would justify his arrest, that there was no probable cause for his arrest, and that the search was not incident to a lawful arrest. The testimony of Officer Heinzel was heard on that motion, substantially as already recited, and the motion was overruled. Apparently the motion was directed generally at all the articles taken, in reliance upon the Fourth and Fifth Amendments to the Federal Constitution and Art. 1, § 15 of the Missouri Constitution.

Of the four points raised by defendant we shall only need to consider two. The one lying at the very threshold of the case is the contention that the arrest was unlawful, that the search was unreasonable and violative of constitutional rights, and that the Court erred in overruling the motion to suppress all evidence relating to the .32 caliber revolver upon which this charge is based. Counsel cites State v. Cuezze, Mo., 249 S.W.2d 373, State v. Scanlan, 308 Mo. 683, 273 S.W. 1062, and State v. Bordeaux, Mo., 337 S.W.2d 47. The point actually made is that the revolver in defendant’s shirt pocket was not concealed, that its possession constituted no crime, that there was no reasonable ground to suspect defendant of committing any crime, and that no crime in the neighborhood had been reported to the arresting officer. The State has cited State v. Cantrell, Mo., 310 S.W.2d 866, State v. Reagan, Mo., 328 S.W.2d 26, and State v. Durham, Mo., 367 S.W.2d 619, as indicating circumstances which justify an arrest, and, therefore, as permitting a search reasonably incident to the arrest. We do not find it necessary to rule upon the legality of this arrest. The point is only made as to Exhibit 2, the .32 caliber revolver, and on the overruling of the motion to suppress evidence as to it. When that exhibit was offered, defendant’s counsel expressly stated to the Court, as quoted above, that he had no objection to its introduction into evidence. This, we rule, was an affirmative waiver of the contentions made in the motion to suppress and of the ruling thereon, insofar as that exhibit was concerned. In State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, loc. cit. 886, the Court said: “After counsel asked the court to pass on the motion to suppress, no other or further objection was made to the admission of the exhibit for the reason it had been obtained in violation of the defendant’s constitutional guaranty against unreasonable search and seizure. * * * But aside from all this there was no error in the admission of the evidence and the overruling of her motion to suppress. Whether or not the evidence was unlawfully obtained was a question to be determined on the motion to suppress. State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383. After the motion is overruled the defendant keeps the question alive by timely objection (State v. Tunnell, 302 Mo. 433, 259 S.W. 128; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301) but the court does not then interrupt the trial to pass on the legality of the search and seizure but only determines whether the evidence is competent and relevant. State v. Owens, supra.” The waiver there apparently consisted of the cross-examination of a witness concerning the disputed exhibit, before again asking the Court to strike the exhibit. We need not rule here whether a mere failure to object to the exhibit, after the overruling of a motion to suppress, is a waiver in itself; Hepperman, supra, indicates that it is. And see also Chandler v. State, 89 Ind.App. 304, 166 N. E. 289; Robertson v. State, 94 Fla. 770, 114 So. 534; Dukes v. Commonwealth, 196 Ky. 60, 244 S.W. 74; State v. Hartness, 147 Wash. 315, 265 P. 742; Fraterrigo v. State, 151 Fla. 634, 10 So.2d 361. In the case of State v. Durham, Mo., 367 S.W.2d 619, loc. cit. 623, the Court held that the search complained of was fully justified by an Illinois statute and that the motion to suppress was properly overruled. We do not consider the Court’s statement there, namely: “Assuming that no objection at the time the items were offered in evidence was necessary to preserve for appellate review the ruling on the motion to suppress, see State v. Windsor, Mo.App., 289 S.W. 663, defendant has not demonstrated an unreasonable search and seizure.” as a direct ruling that no such objection is necessary, nor is the case cited there applicable to the facts here. We hold that Exhibit 2 was properly admitted because of defendant’s affirmative waiver; and it was certainly relevant. By analogy see also State v. Bray, Mo.App., 278 S.W.2d 49, 52. The purpose of a motion to suppress is to prevent the use of a questioned article in evidence. The over- ' ruling of such a motion merely makes it available to the State, subject to objections as to relevancy, etc. If counsel affirmatively withdraws all objections, no ruling concerning the article can thereafter be preserved for review.

The situation is entirely different, however, with reference to the use of Exhibits 1 and 3. The use of and references to these exhibits was specifically objected to throughout the trial, and defendant’s possession of them was consistently kept before the jury throughout the trial. Cases cited by the State involved articles which logically had some inherent connection with the offense for which the defendant was on trial. State v. Thomas, Mo., 360 S.W.2d 694; State v. Evans, Mo., 237 S.W.2d 149; State v. Small, Mo., 344 S.W.2d 49. Defendant cites cases holding that, generally, evidence tending to prove other crimes is inadmissible, State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, State v. Griffin, Mo., 336 S.W.2d 364, State v. Atkinson, Mo., 293 S.W.2d 941, State v. Summers, Mo., 362 S.W.2d 537, and insists that the admission and exhibition of these exhibits was wholly irrelevant to the offense on trial, that they tended to (and were intended to) convince the jury that defendant had committed other crimes and that they were highly prejudicial. It seems obvious that the possession of the pistol found under the seat might have been the basis of a different and independent charge. One of the best statements of the rule and its exceptions is found in the case of State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, at loc. cit. 307: “ ‘The well established general rule is that proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. * * * Evidence of other crimes, when not properly related to the cause on trial, violates defendant’s right to be tried for the offense for which he is indicted.’ State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923. Exceptions to this general rule of exclusion are as well established as the rule itself. * * * ‘Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.’ The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: ‘The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny.”

The State contends that these exhibits and the evidence concerning them were properly received on the question of intent; counsel have cited nothing but generalities, so far as the circumstances of this case are concerned. The cases which we have independently reviewed indicate that proof of the offense of carrying a concealed weapon as prohibited by § 564.610 merely requires evidence of an intent to conceal the gun or to carry it concealed, and that this is presumed from a demonstrated concealment. State v. Conley, 280 Mo. 21, 217 S.W. 29; State v. Hovis, 135 Mo.App. 544, 116 S.W. 6; State v. Carter, 259 Mo. 349, 168 S.W. 679; State v. Charles, Mo., 268 S.W.2d 830; State v. Crone, Mo., 399 S.W.2d 19; State v. Barker, Mo., 249 S.W. 75; and see also, State v. Gibson, 322 Mo. 369, 15 S.W.2d 760, where the Court said, loc. cit. 761: “It is suggested that the act itself carries with it the presumption of the intent. Doubtless that would be true, if the defendant consciously concealed the weapon.” The evidence was not relevant on the question of intent or motive, or on the basis of any of the other exceptions to the general rule. Considered in this light the argument of defense counsel concerning defendant’s intent or motive in carrying the concealed revolver was at least of doubtful propriety, but that point is not for our consideration here. See State v. Charles, Mo., 268 S.W.2d 830, and the other cases last cited.

Evidence was heard concerning all the confiscated guns on the motion to suppress ; that was essential to a determination of the motion. But, with the ruling on that motion, the question concerning the lawfulness of the arrest and the validity of the search went out of the case, except for appellate review, if preserved. Exhibit 2, the .32 caliber Iver-Johnson revolver on which the charge was based, was admitted without objection and, in effect, by consent. The other two pistols were in no way connected with the present offense and we hold that they were inadmissible; the one in defendant’s shirt pocket could only have had a legitimate bearing on the lawfulness of the arrest and that issue had disappeared; the one found under the seat cushion could have served no possible purpose except prejudice.

These two guns were referred to in ex-tenso in the opening statement, in the testimony of witnesses and in the final argument to the jury, over repeated objections. They were left in bags on the counsel table (and specifically referred to as such) and they were passed to the jury for its examination. In the State’s final arguments references were made at least seven times to the fact that defendant had three guns and that this was an “aggravated” case, with the direct insinuation that defendant was guilty of some offense or offenses besides the mere carrying of the particular concealed weapon. These exhibits had no legitimate probative value in establishing defendant’s guilt of the offense on trial. State v. Smith, 357 Mo. 467, 209 S.W.2d 138; State v. Wynne, 353 Mo. 276, 182 S.W.2d 294. And it seems perfectly obvious that their use throughout the trial was prejudicial to the defendant. We may note also that, when the jury was unable to agree upon the punishment, the Court, without any hesitation, fixed it at the maximum permissible under the statute, with no prior convictions charged.

For the errors in admitting Exhibits 1 and 3, in permitting testimony concerning them and in permitting references thereto throughout the trial, the judgment is reversed and the cause remanded for further proceedings.

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Andrew Jackson WALKER, Appellant.
    No. 51605.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, David G. Dempsey, Asst. Atty. Gen., Clayton, for respondent.
    James W. Farley, Farley, R. B. Miller, Jr., Platte City, for appellant.
    Stanley D. Rostov, Marvin J. Brenner, Kansas City, for Greater Kansas City Civil Liberties Union, amicus curiae.
   BARRETT, Commissioner.

On April 29, 1964, Hattie Biscoe, in her 80’s, and her daughter, Marion Biscoe, 67, were found dying, Hattie in Marion’s Ford automobile parked on route KK and Marion alongside the embankment of an obscure lane into the Smith Cemetery in Platte County. Hattie had been shot in the back of the head and was slumped out of sight in the seat of the Ford. Marion had been ravished and shot in the back of the head. Marion died alongside the lane and Hattie died after removal to the Smithville Hospital about seven miles southwest. The appellant Andrew Jackson Walker, a Negro age 39, with five prior felony convictions, three alleged here — forgery, larceny, attempted robbery — was charged with Marion’s murder, found guilty by a jury and sentenced to life imprisonment by the court.

An affidavit for Walker’s arrest was issued on June 15, 1964, and, according to his brief, he was arraigned on that day before the magistrate of Platte County who appointed three members of the Platte County Bar to represent him. In background of the claims made here it should be noted in passing that these three lawyers made thorough investigation and preparation, they filed numerous motions, took depositions, employed available discovery procedures and safeguarded the appellant’s rights by every possible means as finally evidenced by a six-day trial, a 1200 page record, and their brief and argument here. Since it has been deemed proper to comment on appellant’s counsel perhaps it is only fair to say that there was also thorough and complete police-highway patrol-sheriffs’ cooperation and investigation and a well-organized vigorous prosecution led by an able assistant attorney general. A month after arraignment and appointment of counsel, July 14, 1964, there was a preliminary hearing after which the magistrate bound Walker over to the Circuit Court of Platte County. An information charging murder in the first degree was filed on September 4, 1964, he was arraigned in circuit court and entered a plea of not guilty on September 8, 1964, and was tried May 3 through May 8, 1965. In addition to his diligent court-appointed counsel Walker has also been represented in this court by the Greater Kansas City Civil Liberties Union who joined in briefing and arguing this appeal.

There are three or four collateral points in the appellant’s brief but they are without citation of authority, in one or more instances there were no proper or timely objections, and in any event these subsidiary points are encompassed in the principal arguments of both appellant’s counsel and the civil liberties union and will be disposed of inferentially or in passing. One matter not involved here, particularly with respect to the one and only written statement given by the appellant, is that there was a preliminary and formal motion to suppress evidence and a hearing in which eleven police officers were called, there was no other testimony upon the motion, and the court found that “the statement,” meaning the written statement, was voluntary and therefore this appeal is not concerned with the problems of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. In substance these are the abstractly stated points relied upon: (1) that the court erred in admitting in evidence “any written or oral statement, admission or confession of appellant for the reason that appellant was not properly advised of his constitutional rights before or during interrogation by the State,” (2) that any statements appellant may have made were invalid for the reason that the state failed to appoint counsel “at the proper time and stage of the proceeding,” and (3) that the court erred in admitting in evidence any statements or admissions appellant may have made because in violation of his constitutional rights he was, his counsel assert, “interrogated continuously for approximately 36 hours without rest, was kept without sleep for 56 continuous hours” and after one night’s sleep was again “continuously interrogated for four consecutive days” by law enforcement officers, all members of the regional Metro Squad, sheriffs and police officers in the several counties in both Kansas and Missouri in the Kansas City area, a law professor-criminologist, Mr. Duane A. Nedrud, (who incidentally was one of several lawyers arguing the Miranda v. State of Arizona and Johnson v. State of New Jersey cases) and a psychologist trained in the techniques of interrogation, Dr. Virgil W. Harris, a clinical psychologist.

In support of these arguments counsel have cited, sometimes without discrimination, an overwhelming list of cases but in essence the problem here is whether upon the “totality of the circumstances” of this record the rules and guidelines of these recently decided leading cases have been infringed; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423, and Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192. And while this case was tried in May 1965 and is not directly controlled by Miranda v. State of Arizona the case is “relevant on the issue of voluntariness” of any confession or admission. Clewis v. State of Texas, 87 S.Ct. 1338, 18 L.Ed.2d 1. c. 426. And of interest here is the fact that Miranda v. State of Arizona involved four separate cases of “custodial police interrogation,” one of which, Westover v. United States, involved a Kansas City police arrest and interrogation. And, contrary to an inferential contention by the state here, “No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense” — the privilege is against self-incrimination in any manner and there is no distinction in “inculpatory statements and statements alleged to be merely ‘exculpatory,’ ” the court could have employed the word “incriminatory” rather than “inculpatory.” Miranda v. State of Arizona, 384 U.S. 1. c. 477, 86 S.Ct. 1602. Having thus indicated an awareness of the rules and controlling guidelines the question, as indicated, is whether upon the totality of the circumstances of this record there has been an infringement of these governing principles and therefore an invasion of Walker’s constitutional rights so as to compel the granting of a new trial. From almost every standpoint the case conveniently divides itself into two periods in point of time, some of which it is difficult to precisely pinpoint, (a) between April 29, 1964, when Hattie and Marion were found dying, and June 7, 1964, when the appellant was arrested and gave the only written statement and (b) the circumstances and events of the in-custody police interrogation following the giving of the statement to his arraignment in Platte County and the appointment of counsel and, finally, all correlated and evaluated within the context of his testimony upon this trial.

James DeVeney, for 14 years a farmhand on David Miller’s farm, by reason of a series of events did not start out to feed the hogs in the field just south of the Smith Cemetery on April 29th until almost 2 o’clock in the afternoon, at that time he left the Miller home on the east-west gravel road, known in this record as the Little Platte Church Road, in a pickup truck and traveled west one-half mile to the first north-south gravel road, a T intersection, and just as he turned the corner met Lloyd Alimón in a Skelly gas truck. They waved and passed and “just over the top of the hill” on the left side of the road (and just north of the lane into the Smith Cemetery) DeVeney saw an automobile which he described as “white on top” and “blue on the bottom.” He saw “somebody move in the car” and as he approached “somebody just ducked over out of sight.” He was unable to see the person and he could not identify the make or model of the automobile. After passing the automobile he turned right into the cemetery lane and immediately came upon “that woman lying on the left side of the road * * * shaking her head back and forth * * * and blood was running down her face.” De-Veney was frightened and so he drove to the end of the lane, turned around, and “slowed up a little” as he again passed the wounded lady and “took off for the Miller farm as quick as I could.” On the way out he noted that the automobile he had seen on the north-south road was no longer in sight. DeVeney reported these events to Mr. Miller who called the sheriff’s office. He then waited at the T intersection until a deputy sheriff and an ambulance arrived and he directed them to the body of Marion Biscoe who by that time was dead.

About 2 o’clock, also by an unusual chain of events, Alimón left home in his Skelly gas truck and on the north-south road about 150 yards north of the cemetery lane came upon an automobile “sitting by the side of the road.” He thought it was an “Olds,” two-tone, white over blue. There was a man in the front seat of the automobile and as he approached “the man glanced away from me; turned his head to the right” but Alimón saw that it was “a colored man.” Alimón delivered oil to the David Miller farm, proceeded east on the Little Platte Church gravel road to the next gravel road, a north-south road known as County Line Road and he traveled that road into route KK and finally to Green’s garage on 169. As he was about to drive into Smithville he met highway patrolman Roberts and they drove east on KK until they came upon Marion Biscoe’s white Ford, the window on the passenger side shattered, and there found Hattie Biscoe unconscious.

Hattie and Marion lived in Camden Point, northwest of this area, and had been to the hospital in Smithville, Hattie to pay a bill and Marion to refill a prescription. They were last seen leaving the hospital in Marion’s white Ford about 1:30 traveling west into Highway 169. (It took a highway patrolman ten minutes at 35 miles an hour to drive from the place on KK where Marion’s Ford was found to the hospital in Smithville.) A few minutes later, 1:30 or 1:35, a carpenter who lived “west of the covered bridge,” on his way to Smithville saw the white Ford. with the broken glass parked on KK about 100 feet east of the first north-south gravel road but he saw no one and did not stop.

On that day, April 29, Berniece Stobaugh was painting a “farm bell” at Lyle Brown’s home on the Little Platte Church Road, one and one-half miles east of the north-south road near the cemetery, and about 2:15 heard a “grating and grinding” on the road and saw an automobile from the west traveling “with a low tire on the rim.” She did not look at the driver of the automobile and did not know its make but “it was a light top over greenish-blue bottom.” On that day Highway 169 north of Smith-ville was under repair and between 2:30 and 2:45 a 1957 Buick special “white over blue” came upon the workmen and Billy Brown, directing one-way traffic, asked the driver “why he wasn’t fixing his tire.” The driver said that “the car didn’t belong to him” but he was going to make it on down “to the station and fix it.” Billy identified the appellant Walker as the driver of the automobile and subsequently identified him in a lineup in Kansas City. At approximately 2:30 Walker drove his 1957 Buick “whitish color over light green or blue” into Clower’s Standard Service on Business 169, just outside Smithville, and Leo George repaired a right front tire with an NR-3 patch after unsuccessfully attempting to sell him some used tires. Walker drank “a bottle of pop,” bought a pair of sunglasses for $2.00, paid his bill of $1.50 and drove off south on 169. Leo subsequently identified the appellant in a police lineup and at the trial examined a tire and identified the NR-3 patch.

About 3:15 Sheriff Lowmiller made a search along the north-south road and found a lady’s leather billfold with two receipts in it, one from the Smithville hospital and the other from the Camden Point Bank. Another member of the Metro Squad, from Kansas City, Kansas, on the morning of April 30, on the Little Platte Church Road, about one mile from the T intersection, found Marion’s checkbook on the south side of the road. Lieutenant Laurie, from St. Joseph, on this same trip, at the first crossroad east of the T intersection, found several articles among which was a fresh, empty, sixteen-ounce Budweiser beer can —the only one in the searched area. This beer can together with other exhibits was taken by plane to Washington, D. C., and Mr. Goodreau, an F.B.I. fingerprint examiner, lifted and developed from the can Walker’s right thumbprint. On the County Line Road, opposite H and H Lake, Marion’s patent leather purse and a Sears sales slip were found.

As stated, both women were shot in the back of the head, the entrance wounds were described as “contact wounds,” the gun barrel had been placed directly against their skulls. During an autopsy the pathologist removed a .38 caliber leaden bullet from the back of Hattie’s skull. The bullet that passed through Marion’s skull was never found. And, incidentally, the murder weapon was never found. But from the contact wounds the pathologist was able to recover metal fragments from the skulls of both women and thus from the fragments it was established that Marion was also shot with a leaden bullet identical with the one removed from Hattie’s skull.

Irrespective of any statements or admissions or other evidence connected with custodial interrogation, in addition to the appellant’s thumbprint on the beer can, one of the most telling and incriminating circumstances appeared from the testimony of Odie McGlothen. Odie was employed at the Blue Valley Foundry in Kansas City, Walker was “going with” his niece and in November or December 1963 Odie got Walker a job at the foundry. He rode to work with Odie until he purchased his white over green 1957 Buick. Odie did not remember the date of the Biscoe murders but “we was setting out at lunch” at the foundry “talking about the murder” and Walker said, “Well, he said that the police had asked him about the color of his car, and he was going to change the color.” On June 7th mere inspection of the appellant’s white over green Buick revealed that the lower part of the automobile had been painted black over the green, “a pretty crude job,” and in the trunk of the automobile there was a can of “lacquer aerosol type spray paint.”

One month and seven days after the death of the Biscoe women, shortly after 3 a. m. on Sunday, June 7, 1964, Officer Hickman received a radio message and proceeded to 18th Street and Montgall where he “observed a colored man (Walker) coming from behind a grocery store.” Walker got in his 1957 Buick, parked on Kansas Avenue, and after a chase of several blocks Hickman, soon with the aid of Officer King, succeeded in stopping the Buick and arresting Walker. By 3:30 or 3:40 they arrived at No. 3 Police Station on Independence Avenue where King alone, without advising of his rights to silence or counsel, talked to Walker for about one and one-half hours about “a burglary that was committed at Eighteenth and Agnes; a purse snatch had occurred that night — one o’clock in the morning, and an armed robbery had occurred at 10:00 o’clock on the 6th” but the Biscoe case was not mentioned. The only mention of the Biscoe case was by Hickman, apparently as he “booked” Walker at 5:30 or 5:40, when he blurted “why he killed those people over north.” Walker replied, “No, man, you ain’t going to lie on me.” At 6:00 o’clock Walker was taken to police headquarters at 12th and Locust Streets where he was fingerprinted and placed in a cell on the eighth floor by Patrolman Cahill. At 8:35 a member of the crime against property unit (not connected with the Metro Squad) questioned Walker about “an incident that happened the night before,” a robbery and a “purse snatch,” but again the Biscoe case was not mentioned and he was returned to his cell at 9:00 o’clock. This officer says that he apprised Walker of his right to silence and to an attorney and his testimony on the motion to suppress was not disputed. Definite and specific charges, hours and details do not appear, perhaps in fear of getting before the jury other offenses in which there had been no convictions, but on Monday, June 8, 1964, at 2:50 in the afternoon Walker was taken before a magistrate and “arraigned on several charges pending against him in Kansas City, Missouri.” Officer DeGraffenreid, the Negro policeman who escorted him to magistrate court, inquired if he would like to talk to his mother or “see if she could provide counsel for him” but he declined the offers.

The first and intensive in-custody interrogation with reference to the Biscoe murders began with Detective Johnson, in charge of polygraph, at 3:55 p. m. on June 7 with no one else present. He said that he did not advise Walker of his right to an attorney but he did tell him “that this was a voluntary thing; that he did not have to submit to questioning;” but Walker “told me that he knew what his rights were.” At the outset Walker not only denied killing the Biscoe women but he said “that he had not been in Platte City in the past year; he further told me that he had not been in Smithville since 1960.” (Walker was born in Plattsburg in Clinton County about 20 miles northeast of Smith-ville, had relatives there and “some years back,” according to him, had fished and hunted in the area.) After having first denied that he had been in the Smithville area since 1960 he told Johnson that he was on the north-south gravel road and in the Smith Cemetery area on April 29 and he said that on the gravel road he noticed a scarf and piece of paper and stopped and examined them. He also said that he had had a flat tire repaired in Smithville. On direct examination his explanation of his denial and then admission that he had been in the area was “because my record is too bad; I didn’t want to become implicated in nothing of this sort.” Johnson quit talking to Walker at 6:55 and did not see him again until June 9 at 8 o’clock with Dr. Harris.

In the meanwhile between 7:15 p. m. and 12:30 a. m. “with some breaks, of course,” Lieutenant Shannon and Chief Beeler of Raytown interrogated Walker. This interrogation culminated in Walker’s reading, correcting and finally signing, at 11:30, a written statement witnessed by Shannon, Beeler, White and DeGraffenreid. Shannon said that he first introduced himself to Walker, told him what he was there for “and that he did not have to make any statements to me; that any statement that he might say could be used against him in any court of law * * * that he was entitled to an attorney for counsel, or for a friend for advising.” Later in the evening when advised again of his rights he said to Beeler “that he had been over the route before; he knew he was entitled to an attorney, and when he got ready for an attorney he would let me know.” About twenty minutes after this interview started Walker talked to his mother on the telephone. Also there were two breaks of about thirty minutes each when he was placed in lineups, then there was a break or two when he went to the bathroom and one when Chief Beeler brought cigarettes. And then, as he agrees, during the interview “all of us, had chicken and potatoes, rolls, coffee.” Walker testified that there were no promises, threats or mistreatment, he said “they were nasty nice; they have a little way of being nasty nice.” By 11:30 he agreed to give a statement, Shannon prepared it from his notes, and shortly after 12 he signed it.

The statement need not be set out here, the Biscoe murders are not mentioned in it. The statement simply accounts for Walker’s whereabouts beginning with 5:30 a. m. on April 29, 1964, his trip from Kansas City in his Buick automobile to Platte County to hunt groundhogs, his purchase of Budweiser beer, his route, 71 Highway to 92, right on 92 to B and the bridge, east on KK to the gravel road north and then into a “private lane” which he did not admit was the cemetery lane. And when he testified, as in the statement, he said he met a pickup truck, he admitted tossing out a beer can, he told about his flat tire, encountering the road crew and his having the tire fixed and of buying the sunglasses and finally back to Kansas City. Except for denying that the east-west lane he was on was the one into the cemetery, there is nothing in the statement that he did not freely and voluntarily testify to as a witness on his own behalf and in the end he briefly narrated all the circumstances as testified to by the state’s witnesses as they have been detailed from the outset of this opinion.

And so as to the first period of time, between April 29, 1964, when Hattie and Marion were found dying and June 7, 1964, when appellant was arrested and gave the written statement at midnight, in all these circumstances as the court said in another murder case, “Ussery himself removed any objection to admitting the confessions in evidence by testifying to the matters contained in them, thus confirming their truth. Involuntary confessions are rejected as evidence because they are regarded as testimonially unreliable and untrustworthy. 23 C.J.S. Criminal Law § 817(2), pp. 164, 165. Yet when the truth of a confession is established by the very person who made it under such solemn circumstances as on oath in open court, he may not be permitted to claim error because of the use of the confession on the ground it was involuntary,” and, a fortiori there is no manifestly prejudicial invasion of constitutional rights. State v. Ussery, 357 Mo. 414, 416-417, 208 S.W.2d 245, 246-247; State v. Brown, Mo., 404 S.W.2d 179, 182, and the list of cases there cited.

As to the second period of time following the giving of the statement, on June 8, after warnings of right to counsel and of silence, including an offer to take a lawyer on the trip, members of the Metro Squad took Walker to Platte County and traveled over the route described in his statement. They left Kansas City about 8 o’clock, ate lunch in Platte City about 11:30 and were back in Kansas City by 1 o’clock. No one as a result of that trip testified to any fact or circumstance bearing materially on the case. On June 9 Chief Beeler and a detective returned to Platte County with Walker and on that occasion about 11 o’clock Dr. Harris, the clinical psychologist, appeared and was introduced to Walker as one “who was there to talk to him about the Biscoe case.” They drove out to the north-south gravel road and Walker and Harris “walked down the lane” to the cemetery, talking, for the first time, probably thirty minutes. They drove on to Smithville and were back in Kansas City about 4 o’clock. Harris saw him again for about 30 minutes at police headquarters that evening. The next day, Wednesday, June 10, 1964, about 11:30, Detective De-Graffenreid, after explaining to him where and why they were going, took him to the University of Missouri Law School in Kansas City and left him with Professor Nedrud, interrupting about 3:30 while the three of them ate a sandwich and coffee lunch. Nedrud says he told Walker that he was a lawyer and “if you want a lawyer, please get one.” But Walker said that he “would like to talk to you” and so they talked until about 5:30 and during their conversation Walker said that he “wanted to see Dr. Harris.” The only incriminating statement testified to by Nedrud was that he said, “Look, I’ll tell you some, but it will be your word against mine if we go to court.” DeGraffenreid took him to Harris’ office and they engaged in “general conversations” for about 45 minutes. Dr. Harris again saw Walker at his office for three or four hours on Thursday. Harris was paid $750 by the Kansas City Police Department for his services in this case and is in its service at least on a part-time basis.

Excerpting, these are the incriminating matters testified to by Harris: He said that as they walked down the cemetery lane Walker began “to speak of some uncertainty whether that was the lane or not.” Harris asked “whether he had been a participant in the Biscoe crimes or not.” Walker “said that he had not; on one occasion he said that perhaps he did, but that he couldn’t remember; he said that T feel that I did, but, perhaps, I can’t remember.’ He said, also, ‘perhaps I did, but I wouldn’t say that I did.’ ” But, when he saw him for a short time that evening after returning to the Kansas City jail, “He said that he did not have anything to do with it.” The following day, after Walker’s talk with Nedrud and his request to again talk to Harris, they talked about “my graduation from a thief to a murderer,” and “I said to him, ‘Yes, I know; Andy, both you and I know that you committed the Biscoe murders.’ ” He said, “Yes, I know, Doc, but I can’t say anything about it now. * * I said, ‘Why did you do it?’ He said, T don’t know; just to keep from being identified I guess.’ ” When Harris pressed for more details he said “Doc, I can’t say anything.more about it, now; let me sleep on it.” On cross-examination Harris conceded that at one time Walker said, “I’m a thief, hut not a murderer.” They also discussed the possibility of an insanity plea and talked about blackouts and Walker said, according to Harris, “Perhaps I did it and blacked out and can’t remember.” When asked if he ever told Walker that “he would go to bat for him” he said, “Yes; I don’t know if it was in those words, or not, but I told him that I thought he was sick; this was on Thursday that he had considered whether he was going to sign a confession or not, or tell the details or not, and what he was going to do in regard to his plea; that was one way of going.” In this connection there was some discussion of reward money and whether it could be used for his daughter or a home for colored children and “I said that if he decided that he wanted to confess, and sign a statement, that there would be a reward for this, and that perhaps we could see to it that it went to one of these two kinds of places.” When pressed as to whether Walker had ever said “I did it,” he replied, “He told me he did it.”

While Walker, 39, had but two years in high school he had spent many years in prison and was well-read and obviously far above the average in intelligence and cunning. He knew “Well, ninety percent of the Police Department in Kansas City, I know them; they know me by sight” and he categorized them, particularly the Negro detective, DeGraffenreid, “I have no respect for him whatsoever.” He had even read a text on polygraph but had a low opinion of its quality and value. He conceded that he slept “some” on Monday night after his arraignment in Kansas City and I believe it was on Tuesday night I got some sleep,” and so the claim that he was kept awake by the police continuously for either 36 or 56 hours is without foundation in fact. Furthermore, while he claimed almost continuous interrogation he did not claim that there were any promises, force or lack of food. As to the trip to see Nedrud and Harris he testified that DeGraffenreid was helping him avoid newspaper reporters. On direct examination he added a piece of information: he said that after his last discharge from the penitentiary, November 1963, he had had for a short time “a brand new Police Positive .38” pistol that he came by in a crap game but that gun had previously been checked by police and then vanished.

The state’s interrogators, particularly Nedrud and Harris, attempted to employ and follow the in-custody techniques and procedures described in the manuals set forth in the footnotes to Miranda v. State of Arizona, 384 U.S. 45-460, 86 S.Ct. 1602, 16 L.Ed.2d 694, but the important thing here is that Walker was not deceived or misled in the slightest by their most subtle techniques. As with the testimony of Nedrud and Harris as well as Walker’s testimony in other respects, it is not necessary to detail everything he had to say on both direct or cross-examination, it is enough' to say that the only respect in which he directly contradicted their testimony was that he denied that he ever, either tacitly or directly, admitted the Biscoe murders. While he admitted the circumstantial facts of the trip and his presence in the area, on direct examination he said, “No, I didn’t” kill Marion Biscoe. As to Harris’ statement that he had said “Perhaps I did it, Doc,” he testified that “The closest thing I ever came to saying anything like that would be T don’t know anything about it.’ I mean I said that a number of times to questions people asked me, and I’d say ‘I don’t know anything about it.’ That, in itself — I mean, I don’t think they could misconstrue it for that answer, but I never gave them that direct answer like that.” As to blackouts he said he told Lieutenant Johnson, they “were talking of blackouts” and “I said I never drank that much * * * I have read quite a bit * * * and I have * * * it might be true enough, but I never read of a person actually blacking out and don’t remember anything at all about something,” but “I have never said that I couldn’t remember.”

But to specifically indicate the character of his encounter, he said on direct examination that in the course of his hours with Professor Nedrud, Nedrud had tried to hypnotize him. This is his description of the attempt: “Well, we had been talking of this particular crime, and he has a little key chain; identification tag with some keys of his; I think he took the chair that I had, and I took another chair, because I was smoking a cigarette; so he told me to think back to the day of the 29th, to the very morning that I got up, and the further I progressed into the day, he commenced waving this chain, and on this little chain he had a little disk; you see these little disks in the back of magazines, used in connection with hypnosis; this little disk had different colors on it; he and I were sitting facing one another, and he was swinging this chain back and forth, and he eventually got to the place where — I think it was about 12 o’clock — in the telling of what I was doing that day, he told me to close my eyes, and, of course, he was telling me that I was getting drowsy, if I wasn’t relaxed; at that time, well, most generally — I knew exactly what it was when I seen the chain, what he was trying to do, because I have seen the same thing performed once or twice in Chicago; it kinda amused me * * (Professor Nedrud says that he has no knowledge whatever of hypnosis and, of course, did not attempt to hypnotize Walker.) When asked on cross-examination if he had said that he “could kill,” he replied: “I didn’t tell him that in so many words to any particular case. Now, the explanation to that, if a man is pushed, or put in a corner, I think any man is capable of killing to preserve himself, if he is so put that his life is just put in jeopardy; me, or anybody might, anybody, including a woman; in others words, in jeopardy — , in other words, like self-defense, or something of that kind.”

As to Dr. Harris, excerpting again, Walker said, “Well, he starts out to be a real nice fellow; some portions of our conversation — I mean, a person could actually enjoy talking to him if there was something that you have never encountered.” At the crux of their longer session: “Of course, he did call me crazy and I told him he was crazy, also, for — of course, we got around to that type of conversation, and he asked me — it is an age-old joke — but he asked me if I was going across the Sahara Desert and seen a battleship, what I would do, and I told him I would take a submarine and sink it. He said, ‘how would you come up with a submarine out there in the Sahara Desert,’ and I said, ‘the same way you got your battleship.’ So from then on, I mean, he went to the extreme of even — he knows I like money; I don’t think there is a man living that doesn’t like a little of it, but he said, ‘Well, now, we can possibly work out some way where we can get some of this reward money turned over to your daughter.’ I said, ‘that will be just fine, you go right ahead and turn it over to my daughter.’ ”

There would be no point here in summary in analyzing and demonstrating and finally characterizing the conduct of any or all the parties to this particular in-custody interrogation, the circumstances speak for themselves and there was no coerced or compelled, either physical or psychological, self-incrimination. The appellant Walker, well-knowing all his constitutional and other legal rights, knowingly and voluntarily matched wits with his interrogators and in the totality of these circumstances it may not be said that the rules and guidelines of Miranda v. State of Arizona, Davis v. State of North Carolina and Clewis v. State of Texas have been infringed. Aside from their vastly different factual bases and compelling distinguishable inferences, those cases “do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Miranda v. State of Arizona, 384 U.S. 1. c. 478, 86 S.Ct. 1630.

For the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    Dorothy KRUG, (Plaintiff) Respondent, v. STERLING DRUG, INC., (Defendant) Appellant, and Beaumont Pharmacy, Inc., (Cross-Claimant) Appellant.
    No. 52098.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Gray & Sommers, Charles E. Gray, C. Marshall Friedman, St. Louis, for plaintiff-respondent.
    Chapman, Chapman & Litz, Wilton D. Chapman, Thomas W. Chapman, Arthur Litz, St. Louis, for appellant, Sterling Drug, Inc.
    George E. Lee and Doris J. Banta, St. Louis, Carter, Bull, Baer, Presberg & Lee, St. Louis, of counsel, for appellant, Beaumont Pharmacy, Inc.
   BARRETT, Commissioner.

In this action to recover $275,000.00 damages for serious injury to the plaintiff’s vision, a jury returned a verdict in favor of the plaintiff, Dorothy Krug, and against Sterling Drug for $125,000.00 and Sterling has appealed. At the close of all the evidence the trial court directed a verdict in favor of the second defendant, Beaumont Pharmacy. Beaumont, however, filed a cross claim against Sterling for its attorneys’ fees and expense of litigation; that claim was separately tried by the court, found in favor of Sterling and Beaumont has appealed from that judgment. Thus the appeals involve separate and distinct parties and issues, in one of which only Sterling and the plaintiff Krug are concerned and in the other only Beaumont and Sterling. And since, admittedly, there is no liability to Beaumont thiless Sterling is held liable to Krug the appeals are of necessity disposed of in that order.

Unfortunately the parties, Sterling and Krug, in failing to precisely delineate and articulate respective basic theories, in briefing and urging numerous irrelevancies and factitious technicalities, have so thoroughly obfuscated essential and meritorious issues that the appellate function has been made unnecessarily difficult. See Judge Learned Hand, “The Preservation of Personality” in The Spirit of Liberty, Dilliard, p. 43. It is not necessary to detail the obfuscations, they are noted at the outset because they necessarily appear as this record of over a thousand pages and the appellant Sterling’s eleven assignments of error are considered.

STERLING DRUG APPEAL

By way of introduction it should be noted that Sterling Drug and Winthrop Laboratories are one and the same and that this action involves its trade-name drugs Aralen, Triquin and Plaquenil, all of which are compounded of its 1946 invented product chloroquine phosphate designed originally for the prevention and treatment of malaria. In 1955 Sterling introduced the drug to druggists and the medical profession for the treatment of arthritis and discoid lupus erythematosus. Chloroquine, a prescription drug, among other side effects, has an affinity for the melanin pigment found in the eyes resulting in a condition now known as chloroquine retino-pathy, a condition with which the plaintiff Dorothy Krug is afflicted. It may be well to also interpolate that Sterling and its drug, chloroquine, have been involved in four other reported cases, all concerned with impaired vision, in two of which Sterling was unsuccessful, Sterling Drug, Inc. v. Cornish (Eight Circuit), 370 F.2d 82 and Yarrow v. Sterling Drug, Inc. (U.S.D.C., S.D.), 263 F.Supp. 159, and in two of which it was successful, Cochran v. Brooke, (Or.), 409 P.2d 904, and Oppenheimer v. Sterling Drug, Inc., (Court of Appeals of Franklin County, Ohio), 7 Ohio App.2d 103, 219 N.E.2d 54. While the record in this case is quite unlike any of those cases in certain basic respects, a number of facts are common to all and need not be detailed here.

In passing, however, conspicuous differentiating factors in the two cases in which Sterling was successful should be noted. In the Oregon case the plaintiff sued her doctor for malpractice as well as Sterling and at the conclusion of the trial “all parties moved for a directed verdict.” Under Oregon practice when all parties move for a directed verdict the judge determines the fact with the effect, as the Oregon court said, 409 P.2d 1. c. 905, 906, “The procedural posture of the case required the trial judge to decide the questions of fact. His decision ‘ * * * must be sustained, if the record contains any substantial evidence to support the judgment * * ” At the same time the court observed that “Neither plaintiff nor defendants would have been entitled to a directed verdict had either party alone so requested the court to rule. The case was clearly one for the trier of the fact to determine.” Under this procedure, at the conclusion of a three weeks’ trial, the trial judge found that there was no negligence on the part of either defendant and no breach of warranty by Sterling and that finding was supported — the only question before the Supreme Court of Oregon. This, of course, could not happen in this jurisdiction (Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558) and on appeal in a product’s liability case, as in all other jury cases, in determining whether plaintiff made a case the evidence is viewed in the light most favorable to the plaintiff, disregarding the defendant’s evidence except insofar as it may aid plaintiff’s case. La Plant v. E. I. Du Pont De Nemours and Company, Mo.App., 346 S.W.2d 231, 234, a herbicide case. In the Ohio appeals case the trial court directed a verdict for the defendant and the appellate court agreed with that action, particularly did it agree that the record would not support a finding of proximate cause. But that factor alone, especially its proof, distinguishes Dorothy Krug’s case, the Ohio court said, “In the record before us, there is nothing to indicate that the doctor relied upon any information furnished by the defendant in prescribing Aralen for his patient * * *. He said, further, he did not know it, Aralen, to be a prescription drug, and that in the use of it he relied upon his own experience and what he had learned at the meetings.” 219 N.E. 2d p. 58.

The plaintiff’s petition was in five counts but Sterling’s liability and her right to recover was submitted upon the single assignment of negligence that Sterling knew or should have known of the “dangerous potentialities” of its drug and “failed to give a timely and adequate warning to the doctor who was prescribing said drugs.” Upon this appeal Sterling does not challenge this basic rule and duty: “[W]here the drug is a prescription drug, the manufacturer has a duty to properly warn the doctor of the dangers involved.” Yarrow v. Sterling Drug, Inc., 263 F.Supp. 1. c. 162; Sterling Drug, Inc. v. Cornish, 370 F.2d 1. c. 85; Annotations 79 A.L.R.2d 301, 324; 76 A.L.R.2d 9, 16. “(I)t is incumbent upon the manufacturer to bring the warning home to the doctor.” Rheingold, “Products Liability — The Ethical Drug Manufacturer’s Liability,” 18 Rutgers L.R. 947, 993.

Recognizing this general rule and duty Sterling nevertheless contends that its motions for judgment should have been sustained for one or more of four reasons: (1) that Dorothy Krug’s claim for injury to her eyes was barred by the five-year statute of limitations; (2) that as a matter of law the negligence of plaintiff’s doctors was an intervening proximate cause; (3) that there was no duty to warn a small class (of which it is implied plaintiff was one) of peculiarly allergic or idiosyncratic users; and, (4) that there was no evidence that Sterling acted in any different manner than any other drug manufacturer in testing or warning and thus was not guilty of any negligence or of “failure to exercise due care.” These assignments will be considered in the order in which they have been presented. The evidence and some facts are applicable to more than one of these overlapping issues, but once noted in one connection specific attention will not again be directed to them in considering another issue.

The plaintiff-respondent Dorothy Krug, 43, and her identical twin sister Doris have been afflicted with discoid lupus erythema-tosus since 1942 or 1943 and over the years have taken numerous prescribed drugs. These women are college graduates and have had a wide and varied experience in business; Doris, for eighteen years has been in the checking department of. a bank, both have worked for doctors, including Dr. Weiss, and Dorothy for the past seventeen years has been a laboratory technician in the Washington University Dental School. Dorothy had been to other doctors but in 1945 became the patient of Dr. Weiss and he treated her and was her principal doctor until his death in 1963 and since then she has been treated by his office associate, Dr. Conrad. Thus the office records and correspondence of Dr. Weiss have been preserved and are a part of this record. In August 1953. Dr. Weiss for the first time prescribed Aralen, two 250 mg. tablets a day, and the drug improved Dorothy’s lupus. Dr. Weiss continued to prescribe and Dorothy took Aralen until July 1957 when for the first time she noticed that her vision was sometimes “fuzzy.” Dr. Weiss then prescribed Sterling’s drug Plaquenil and from 1958 to 1962 Triquin, both chloroquine, but Dorothy’s vision continued to worsen until 1961 when her eye condition stabilized and as Dr. Post says in 1965, she has no central vision and could count his fingers at two feet with her right eye and one foot with her left eye.

It is not necessary to refer in detail to Stering’s chloroquine literature to the medical profession and to the retail druggists— some of it is noted in the four reported cases and all of it in large quantities is a part of this record. Its first pamphlet, April 1955, describing and recommending Aralen phosphate for the treatment of lupus, in its conclusion, warned only “Side effects such as nausea, headache, giddiness, abdominal cramps and blurring of vision have been noted, but these disappear on reduction of dose or discontinuance of the drug." In some of its literature it was said that “Toxic effects are usually mild and to date have been transitory in nature, disappearing completely either on continuance (sic) or cessation of therapy or on reduction in dosage.” After its original application to the Food and Drug Administration in 1946 and its supplemental application in 1957 that agency wrote to Sterling’s Dr. Rice, May 22, 1959 and said that when “you submitted to us information in regard to the relationship of these drugs (Aralen and Plaquenil) to production of corneal changes it was understood, at that time, that you would supplement your applications to provide for revised labeling which would reflect this potential hazard.” In June 1959 Sterling wrote to the department and noted certain studies that had been carried out but said that “we have serious doubts that the diminished visual acuity was related to therapy.” It proposed to enclose with its brochures as to reports of “visual halos or blurred vision” a statement that the condition was “reversible on cessation of therapy” in the opinion of investigators. In interoffice communications there were reports of “two instances in which retinal changes were noted in patients” and finally, February 8, 1960, Sterling’s medical directors took note of the medical literature, beginning with the Hobbs 1959 report in the English journal “The Lancet,” expressing the opinion that chloroquine caused macular lesions. Based on this “a tentative draft of a revision” of its literature for Aralen, Plaquenil and Triquin was proposed. But on March 25, 1960, there was a memorandum in Sterling’s file “Do not advise F.D.A. now.” And in May 1960 the appellant’s director wrote the administration but it was not until February 1963 that Sterling sent doctors a letter of “Important Drug Precautions” noting that its drugs were helpful in the treatment of discoid lupus but that “certain ocular complications have sometimes been reported during prolonged daily administration of chloroquine.” Therefore, it was recommended that patients be given “ophthalmologic examinations” and “Should corneal changes occur (which are thought to be reversible * *), the advantages of withdrawing the drug must be weighed in each case against the therapeutic benefits” and if “visual disturbances” occur it was recommended that the drug be “stopped immediately.”

As indicated, the first report of a “possible association” of serious eye injury as a side effect of chloroquine came from three English doctors, known as the Hobbs report, in 1959. But the English journal received little attention. Between 1961 and 1963 special studies of chloroquine and serious eye damage were made at the National Institute of Health at Bethesda, Maryland, and these reports of the drug’s affinity for melanin pigment and finally for the condition now known as chloroquine retinopathy were all reported in the medical journals. And in this case, no doubt distinguishing this from all other reported cases, Dr. Weiss arranged for Dr. Bernstein, at National Health, who was conducting the studies for chloroquine damage, to examine the plaintiff Dorothy Krug and she was examined by him March 7, 1962 to April 25, 1962. It is not necessary to note his full reports and testimony, he found that Dorothy “had a retinal degeneration secondary to long-term chloroquine administration.” He was of the opinion that her eye condition was permanent, irreversible and due to the drug chloroquine.

In the course of his treatment of Dorothy’s lupus Dr. Weiss referred her to, among others, Dr. Sanders, an eye specialist. He examined her a number of times from 1947 to 1961 but, as he testified, “chloroquine retinopathy” was not known to anyone in the profession until 1959 and that is the reason he did not recognize the condition until he read about it in the American literature in 1961. And it was on that occasion in 1961 that Dorothy learned for the first time the cause of her eye condition.

In this background, as to the statute of limitations, Sterling argues that because Dorothy first noticed difficulty with her eyes in July 1955, “a blurring and blinding effect,” which got worse until by 1957 there was “a diffuse degeneration of the retina” and that certainly “the latest that plaintiff could have filed her suit would have been in 1961, which would have been over five years after her first unusual eye symptoms appeared.” Plaintiff’s action was instituted on April 17, 1963, and her counsel point to the fact that she took chloroquine, in the form of either Aralen, Triquin or Plaquenil, on her doctor’s prescriptions until 1961 or 1962, that her eye condition continued to deteriorate until 1961, and that, therefore, there was “a continuing tort” and the statute of limitations did not start until she stoppped taking the drug in 1961 and was made aware of her condition and its cause.

It is not necessary to distinguish the workmen’s compensation cases, the instances of disease incident to and following immediate traumatic injuries (Annotation 11 A.L.R.2d 277, 280-281), the malpractice and numerous other causes from other jurisdictions. In the first place, while Dr. Weiss on occasion had misgivings he continued to prescribe chloroquine in one form or another and Dorothy continued to take it until 1961. And it was not until 1961 that Dorothy was informed by an eye specialist of the probable cause of her failing vision. But significant here as far as Sterling is concerned is the fact that medical journals, of which Sterling was bound to have knowledge (La Plant v. E. I. Du Pont De Nemours & Co., supra; Braun v. Roux Distributing Co., Mo., 312 S.W.2d 758, 763, a subsidiary point raised by the appellant) beginning in 1959 if not earlier (Yarrow v. Sterling Drug, Inc., supra) warned of the hazardous side effects of chloroquine and even then the appellant did not change its literature to timely and adequately warn the profession. Thus as the jury could find, until 1961 at least, there was continuing negligence, “a single wrong against which the limitation period commences to run only from the time of the cessation of the wrong.” In this respect the case is distinguishable from the occupational disease cases, relied on by the appellant, in which the malady was not discovered until after the employees left their employment. Farrar v. St. Louis-San Francisco Ry. Co., 361 Mo. 408, 235 S.W.2d 391; La Porte v. United States Radium Corp., D.C., 13 F.Supp. 263.

But continuing negligence need not be the sole determinant, as others have pointed out (Radiation Injuries; Statute of Limitations Inadequacies In Tort Cases; 62 Mich.L.R. 753, 756) “(t)he Missouri legislature, however,, has prescribed definite criteria for determining the date of accrual” of causes of action for an injury sustained in the circumstances of this particular record. Civil actions for torts must be commenced within five years “provided * * * the cause of action shall not be deemed to accrue when the wrong is done or the technical breach * * * or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment”. RSMo 1959, § 516.100, V.A.M.S. Clohesy v. Century Electric Co., Mo.App., 142 S.W.2d 780, a case not cited by the parties, involved this provision of the statute. That was an action for damages from breathing and inhaling harmful dust while grinding castings from 1922 to 1926 causing pneumoconiosis, a chronic fibrous reaction in the lungs. It was there alleged “that plaintiff was thereby caused to suffer illness and disease which was not ascertainable by plaintiff until April, 1934.” In considering whether the plaintiff’s action was barred by the five years’ statute of limitations as a matter of law the court posed the crucial question, “What does the record disclose as to when plaintiff’s cause of action accrued?” It is too lengthy to set out here but the court reviewed the record fully, the medical as well as the plaintiff’s evidence, as to the onset of his injuries and concluded: “We are constrained to the view that the trial court erred in granting defendant a new trial on the ground that the court should have sustained defendant’s demurrer offered at the close of the case on the ground that plaintiff’s cause of action was barred by the five years’ statute of limitation. Upon the record before us reasonable minds might reach different conclusions as to whether or not plaintiff was suffering with pneu-moconiosis, and if so when that fact was ascertainable. * * * Since, under § (516.100) plaintiff’s cause of action, when considered in relation to our statute of limitations (quoting the provision above set forth), the record before us presents to our view, if believed, substantial testimony sufficient to make the question as to when plaintiff’s cause of action accrued a question for the jury.” In the Cornish case the appellant relied on the Kansas two-year statute of limitations, in part the court said, 370 F.2d 1. c. 86, “There is no evidence that appellee suffered irreversible impairment of vision before June 1962, when she barely avoided an automobile accident after failing to see another car, nor that she could have maintained a cause of action for permanent eye injury prior thereto.” In addition to the proviso of our statute, the rationale of the cases involving delayed manifestations or injuries caused by wrongful conduct which was unknown to the plaintiff at the time of the invasion of his rights is “that a person must have some notice of his cause of action, an awareness either that he has suffered an injury or that another person has committed a legal wrong which ultimately may result in harm to him, before the statute can begin to run.” 62 Mich.L.R. 1. c. 764. This appeal is not concerned with how the issue should have been submitted (National Bank of Commerce in St. Louis v. Laughlin, 305 Mo. 8, 264 S.W. 706, 707, 717), and it is only necessary to say that for the reasons indicated it may not be said as a matter of law that plaintiff’s cause of action was barred by the five-year statute of limitations.

The second reason assigned in support of its motions for judgment is that “the negligence of plaintiff’s doctors was an intervening proximate cause of plaintiff’s injury, and the trial court erred in so failing to rule as a matter of law.” In this connection it is said that Dr. Weiss “experimented with chloroquine” in treating. Dorothy’s lupus and it is urged that there is no evidence that Dr. Weiss “relied on any recommendation from Sterling” when he prescribed for his patient. In support of this point the appellant relies for the most part on Oppenheimer v. Sterling Drug, the Ohio Court of Appeals case, in which, as previously noted, the plaintiff’s doctor had not read and did not rely on Sterling’s literature or insert directions. Also in that case the doctor did not know that Aralen was a prescription drug and did not treat it as such, there was only one prescription, May 23, 1958, and “(l)egally or illegally, the prescription was refilled approximately twenty times over a period of almost two and one-half years although the prescription carried a limit of six months and neither doctor nor druggist could recall or produce a record authorizing any renewal,” and, apparently plaintiff had ■ the prescriptions refilled on her own. There is no such record in this case and the warning in Sterling’s early literature may have misled rather than warned a sizeable number of the medical profession of the hazardous side effects of chloroquine. Stromsodt v. Parke-Davis & Co., D.C., 257 F.Supp. 991, 997. But in this case there is an additional circumstance that is certainly not present in any other litigation Sterling may have had or for that matter in any other reported case. In 1956 Dr. Weiss wrote Sterling a long letter and report in which he fully described Dorothy, her malady and his treatment, especially his prescribing Aralen. He reported, however, that “this patient is slowly losing her eyesight” and he wondered “if Aralen might in any way be responsible for this loss of vision.” There were interoffice communications on the subject of Dr. Weiss’ letter, a company representative from New York went to St. Louis and interviewed the doctor, and finally on July 27, 1956, the company wrote the doctor a letter. It is a long letter and the full text need not be quoted but in part Sterling’s doctor said, “as regards the Aralen possibility, I think this is unlikely. Aralen does cause visual disturbances, but published reports 1, 2 seem to indicate that the basis for the trouble is the drug’s interference with the muscles of accommodation. The patient usually complains of blurred vision. I am pleased to enclose annotated bibliographies on lupus erythematosus mentioning reactions discussed, a lupus erythe-matosus brochure and an Aralen brochure. In all instances in which we are aware, all of the toxicological manifestations of Aralen are reversible on reduction in dosage or cessation. As far as I am aware, permanent blindness has never been reported and permanent tissue damage, anywhere, is not a feature of Aralen therapy.1’ Dr. Weiss replied to this letter and gave further information, the appellant’s doctor replied and reaffirmed his previous statements. It is not necessary to comment on this correspondence or on the company’s subsequent literature, as stated, there was a duty on the company to warn the medical profession. In Sterling Drug, Inc. v. Cornish, Sterling claimed that appellee’s doctors negligently failed to keep up with the literature and that the trial court erred in not instructing the jury on “intervening proximate cause.” But there and applicable here, as in Yarrow v. Sterling Drug, supra, the court said, 370 F.2d 1. c. 85, “There is no question of intervening proximate cause in this case. The sole issue was whether appellant negligently failed to make reasonable efforts to warn appellee’s doctors. If appellant did so fail, it is liable regardless of anything the doctors may or may not have done. If it did not so fail, then it is not liable for appellee’s injury. The issue was to be resolved by the jury, and we see no error in the court’s instruction.”

The appellant’s third claim of non-liability as a matter of law, and as another subsidiary point failure to give an instruction, is that it had no duty to warn “an unidentifiable small class of users of the possibility they might suffer a peculiar allergic or idiosyncratic reaction” to its drug. It is said that this is especially true of a condition that came into medical knowledge after plaintiff had used the drug for some time. In this latter connection as with its previous claim of intervening cause it should be again noted that after the medical and scientific literature appeared and after its correspondence with Dr. Weiss the appellant Sterling did not then change its literature or write Dr. Weiss, as he had requested, and inform him of this new knowledge. Also not helpful is the list of cases from other jurisdictions in which there were no systemic injuries and hives and related maladies from the use of permanent wave solutions and other products resulted to one whose “injury constituted an isolated instance of injury to an unusually susceptible individual.” Merrill v. Beaute Vues Corporation, 10 Cir., 235 F.2d 893. As was pointed out- in that case and its circumstances in which neither party could have known of the danger beforehand “a warning would have been wholly ineffective.” The substantial evidence is that there was no connection between the malady discoid lupus and injury of the type sustained by plaintiff to her eyes although some of appellant’s witnesses made some effort at asserting the contrary. Furthermore, there was no substantial evidence that Dorothy’s eye malady resulted from an idiosyncratic reaction, and even so, as this court said of Notox, another hair dye, once the fact is established that an apparently harmless product contains known hidden dangers there is a duty to warn the unwary user. Arnold v. May Department Stores Co., Mo., 337 Mo. 727, 85 S.W.2d 748. It is not necessary to examine a mass of evidence and indicate the lack of probative force upon the issue, the appellant points only to bits of testimony from two of plaintiff’s witnesses estimating percentages of people succumbing to chloroquine retinopathy and suggests that the evidence establishes idiosyncratic reaction. In the Cornish case Sterling objected to a trial court’s instruction that “appellant had a duty to warn the medical profession of the susceptibility of such a hypersensitive or idiosyncratic group.” In that case, as here, the court concluded that “there was sufficient evidence for the jury to find that appellant did in fact know, and thus could have foreseen, that some persons would be injured by the drug’s side effect. Moreover, in this case we are dealing with a prescription drug rather than a normal consumer item. In such a case the purchaser’s doctor is a learned intermediary between the purchaser and the manufacturer. If the doctor is properly warned of the possibility of a side effect in some patients, and is advised of the symptoms normally accompanying the side effect, there is an excellent chance that injury to the patient can be avoided.” (370 F.2d 1. c. 85). Thus, as indicated, the appellant was not for this reason entitled to be exonerated as a matter of law and there was no manifest error in refusing the instruction (Evinger v. Thompson, 364 Mo. 658, 265 S.W.2d 726, 733), certainly not upon the basis of the three federal cases cited of which Merrill v. Beaute Vues Corp., supra, is typical.

Relying on the Opperfheimer case and a statement in a diseased pork-trichinosis case from Michigan — “No one is held by the law to a higher degree of care than the average in the trade or business in which he is engaged’’ (Cheli v. Cudahy Bros. Co., 267 Mich. 690, 695, 255 N.W. 414, 415), Sterling argues that there was no evidence that it “acted in a different manner than any other drug manufacturer in testing or warning and thus was not guilty of any negligence in failure to exercise ordinary care.” It would serve no useful purpose to review all the record that might bear on this subject, appellant refers only to the testimony of two of its witnesses, a research specialist and its medical director who testified that “electro-retinograms and oculargrams,” instruments used by Dr. Bernstein and the National Health Institute in diagnosing chloroquine retinopathy, were research tools commonly used in medical schools and not widely used prior to 1960 or 1961, meaning, of course, by practicing doctors and drug manufacturers. It is not explained just how these two isolated pieces of evidence prove the assertion that the appellant acted as other drug manufacturers and therefore “was not guilty of any negligence in failure to exercise ordinary care.” As indicated, there were other tests and the available medical literature as early as 1957 and certainly by 1960 was such that “Sterling knew or had reason to know that some persons would be injured by the drug’s side effects.” Yarrow v. Sterling Drug, Inc., 263 F.Supp. l.c. 162. If this is not sufficient to dispose of this particular claim, it would appear that the manufacturer and distributor of a prescription drug to be administered to human beings, as with the manufacturer of a weed killer or a hair dye, should be “held to the skill of an expert in that particular business” and “ ‘to an expert’s knowledge of the arts, materials and processes,’ and is bound to keep reasonably abreast of scientific knowledge and discoveries concerning his field and, of course, is deemed to possess whatever knowledge is thereby imparted.” Braun v. Roux Distributing Company, Mo., 312 S.W.2d l.c. 763; La Plant v. E. I. Du Pont De Nemours and Company, 346 S.W.2d l.c. 240-241. And it follows as a matter of course that there was no error in the court’s giving Instruction 4 defining “negligence” as “failure tó use the skill of an expert in the defendant’s business.”

Before urging the preceding point but concerned in some measure with it and perhaps with other points as well the appellant contended that the court erred in “permitting evidence of scientific knowledge learned after plaintiff was taken off the drugs.” In its argument appellant points to the fact that Dr. Bernstein was permitted to testify to “scientific knowledge learned in 1962 and 1963, long after plaintiff was taken off chloroquine” and that its employees, charged with the duty of testing and manufacturing the drug, Dr. Foley and Dr. Dennis, were cross-examined “to amplify the same.” Upon this trial some of the appellant’s witnesses, doctors and researchers, took the position that there was no such thing as chloroquine retinopathy, others took the position that the drug’s affinity for melanin pigment could not be produced or established in animals, of course, taking these positions, there would'be no point in appellant’s making tests as to any possible hazard as to eyes. But it is not necessary to say that this alone makes all the evidence admissible although it is all referred to in the other four reported cases. There was an objection when plaintiff’s counsel asked Sterling’s Dr. Foley whether he had read of Dr. Bernstein’s experiments on animals showing a connection between eye injury and chloroquine. The objection was that the tests were made long after Dorothy was off the drug and by means of instruments at the disposal of doctors but not available when she was taking chloroquine. In the first place Dr. Foley had an explanation for or minimized all prior or early reports of eye injury from chloroquine. As to the Hobbs report he said that they had all overlooked it. In numerous instances when 1960-1963 literature was referred to there were no objections, and prior to the noted question to Dr. Foley, as well as on redirect examination the appellant introduced or referred to numerous pieces of literature in 1962-1963. In these circumstances there was no manifest prejudicial error in the admission of the evidence specifically referred to in the appellant’s assignment.

The appellant has one other assignment relating to instructions, it is urged here that Instruction 2 was erroneous in that it “was partly in form one on implied warranty rather than negligence.” This is a rather technical objection to only parts “First” and “Second” of the seven-part main instruction and the only authority cited in support of the point are M.A.I. 25.02 and 26.01, the former being the form for breach of warranty of fitness for consumption and the latter being the seven-part negligence instruction for negligently furnishing a dangerous instrumentality. The “First” simply submitted to the jury that “defendant sold Aralen, Plaquenil and Triquin for human consumption,” an undisputed matter in this case that would appear to be appropriate in either warranty or negligence. The “Second” submitted that the “products when sold by the defendant were products which would cause serious damage to the retina of the eyes in some individuals on long term therapy using said drugs in the manner and for the purposes intended.” This does not fit either “First” or “Second” precisely of the warranty instruction, 25.02, nor does it precisely fit “Second” of the negligence instruction of 26.01, although it is closer to the latter than the former and no doubt due to the nature of the product and the record here heeded some adaptation. In any event neither “First” nor “Second” are the crux of the matter, the other five paragraphs admittedly follow negligence M.A.I. 26.01 and there is no objection to that part of the instruction. The negligence submitted and the crux of this case, as indicated throughout this opinion, is contained in supported “Third,” “Fourth” and “Fifth.”

“Third, defendant knew or should have known of such dangerous potentialities of said products; and,
“Fourth, neither the plaintiff nor her doctors knew, and by the exercise of ordinary care, they could not have known of such dangerous potentialities of said products; and,
“Fifth, defendant failed to give a timely and adequate warning to the doctor who was prescribing said drugs to plaintiff of such dangerous potentialities of said products.”

Thus upon the ground or reason now assigned the instruction was not manifestly and prejudicially erroneous. Sterling Drug, Inc. v. Cornish, 370 F.2d 1. c. 84-85.

A final assignment directed to the appellant’s right to a new trial is that the court erred in overruling its objection and thereby giving its stamp of approval to certain argument by plaintiff’s counsel. Appellant’s counsel in arguing “the latest reports” and tests and claiming that retinal injury could not be detected “in these people that have this idiosyncrasy, you can’t find it” finally said, in appealing to the jury: “The lupus — this lady, Charlie Gray says ‘God rest Dr. Weiss’ soul.’ I say to you that Dorothy Krug and her sister should thank God that this drug was on the market because the lupus that is discoid at any time can turn into systemic and it’s fatal.” Respondent’s counsel in painting his client’s plight said, “Do you think at that time she raises her eyes to God and says, ‘Thank God for Aralen ?’ Do you think she says that?” The latter is the statement objected to as prejudicial, but upon this record it would seem that there was a virtual standoff as to who should and who should not be grateful to the deity and the trial court did not abuse its discretion in refusing to grant a new trial upon this assignment. Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353.

And, since there were no manifestly prejudicial matters entitling appellant to a new trial and no attempt to demonstrate a course of repeated improper conduct in defiance of the court’s rulings there could be no new trial because of “the cumulative, prejudicial effect of the various errors.” Myers v. Moffett, Mo., 312 S.W.2d 59; Bittner v. Crown Shoe Manufacturing Company, Mo.App., 340 S.W.2d 142, 151.

The appellant Sterling’s final point is that the trial court erred in refusing to hold that the verdict was excessive “and in failing to grant a new trial.” The mere fact that a verdict is very large, even excessive, does not in and of itself demonstrate passion and prejudice, and it is the established practice in this jurisdiction to cure the error of excessive verdicts by enforced remittiturs (Joice v. Missouri-K.-T. Railroad Co., 354 Mo. 439, 453, 189 S.W.2d 568, 576, 161 A.L.R. 383) and the problem here is whether, adhering to the rule of uniformity and its attendant tests (Crane v. Northup, Mo., 413 S.W.2d 190; Parlow v. Carson-Union-May-Stern Co., Mo., 310 S.W.2d 877, 885), the verdict of $125,000.00 is excessive and should be reduced by re-mittitur. Needless to say this is a difficult problem and there are no fairly comparable Missouri cases cited, certainly none in recent years that have kept apace with increasing and “changing economic factors.” Parlow v. Carson-Union-May-Stern Co., supra. The relevant cases over the years 1941 to 1950 involving eyes are collected in 16 Á.L.R.2d 3, 130-136 and since 1950 in 2 A.L.R.2d later case service 1. c. 535-539, and this reference alone is sufficient to indicate the impossibility of reconciling the cases.

In November 1965 Dorothy Krug was 43 and it is not necessary to recite all the inconveniences and frustrations attendant upon being, as Dr. Post said, “very close to being blind; she has to be led into a room. She sees light, she sees form, she is very badly off.” She cannot watch television, -she. no longer attempts to read anything other than Braille. The medical testimony as to Dorothy’s eyes is undisputed, as indicated, Dr. Bernstein said that she had “retinal degeneration” in both eyes, that the condition was permanent and irreversible. Both Doctors Sanders and Post described her condition in great detail after numerous examinations over the years, their opinions agreed with those of Dr. Bernstein. The appellant does not question the uncontra-dicted medical evidence, the appellant only says that Dorothy “still has some vision and her condition is static and in recent years there has not been too much change.” In addition the appellant points to the fact that there is “no evidence of any lost time or salary” and she “is still at the same job as a laboratory technician” and is now earning more than when she started the drug. However, Dr. Ring of the Washington University Dental School said that the “quality of the (her) work has diminished considerably in recent years” and that she frequently makes mistakes, she has to be driven to work, bumps into walls and furniture, cries when unobserved and it was his final opinion that “The routine work varies from acceptable to unacceptable, but she formerly was a first-rate technician. At the present time she'would, I think, by our standards, be unemployable.”

In this background and these circumstances the instances in 1950 and 1952 of blindness in one eye, even with other injuries, are not too helpful or persuasive. Meierotto v. Thompson, 356 Mo. 32, 201 S.W.2d 161; Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972; O’Brien v. Louisville and Nashville R. Co., 360 Mo. 229, 227 S.W.2d 690. Ex-cessiveness and uniformity is governed and controlled by local Missouri rules and decisions but inevitably in this particular case and its circumstances the federal cases have their force. In Sterling Drug, Inc. v. Cornish, supra, there was a jury verdict of $110,000.00 which had been remitted to $80,000.00 and the appellant did not question the size of the final verdict.--In-Yarrow v. Sterling Drug, the case was “tried to the Court sitting without a jury” and the trial judge awarded a mother and housewife, forty-eight years old, $80,000.00. The ultimate disposition of that case, January 1967, does not appear. Without further demonstration, it may not be said upon this record that the verdict is manifestly excessive and should therefore be reduced some definite amount.

APPEAL OF BEAUMONT PHARMACY

As indicated, Dorothy Krug instituted and prosecuted her cause of action against Sterling Drug, the manufacturer, and Beaumont Pharmacy, the retail pharmacist who filled the innumerable chloroquine prescriptions. Upon the plaintiff’s cause of action, at the close of all the evidence, the court sustained Beaumont’s motion for judgment and directed a verdict against Dorothy. In the main action Beaumont filed a cross claim against Sterling to recover the attorneys’ fees and expenses of $5,753.80 it had necessarily incurred in defending itself against Dorothy Krug. The cross claim was separately tried before the trial judge who found that Sterling was not liable for these expenditures and Beaumont has appealed from that judgment.

In its cross claim Beaumont alleged that Sterling had been negligent in selling its drugs without adequate warning and that in dispensing the drugs it had relied upon Sterling’s representations. Sterling refused Beaumont’s tender of the full defense of the principal action. It is not necessary to set forth the facts relating to the cross claim, it is sufficient to indicate Beaumont’s theory of recovery upon this appeal. Beaumont states the question as whether “(i)n an action for common law or non-contractual indemnity, such as the cause of action stated by the cross claim in this case, can the indemnitee recover his attorneys’ fees and expenses even though he was not held to be liable to the original plaintiff?” Beaumont concedes that there are no precisely applicable Missouri cases but argues that the basic theory of “an implied contract of indemnity,” as expounded in the excellent opinion in Hunter v. De Luxe Drive-In Theaters, Mo.App., 257 S.W.2d 255, should be extended to permit recovery, as here, “by successful as well as unsuccessful defendants in comparable circumstances.” In that case, however, Hunter was not only primarily liable to the original plaintiff, it was solely liable and the in-demnitee had satisfied the plaintiff’s judgment for Hunter’s negligence in the sum of $3,259.00. It is interesting to note, however, that in that case as in other Missouri cases, when indemnity has been permitted attorneys’ fees and expenses have been allowed as well as the principal sum. Other Missouri cases, cited by the parties, are listed here because they state the general rules of indemnity and on their faces are distinguishable from this appeal: Western Casualty & Surety Co. v. Shell Oil Co., Mo.App., 413 S.W.2d 550; Pierce v. Ozark Border Electric Co-operative, Mo., 378 S.W.2d 504; Ward v. City National Bank & Trust Co. of K. C., Mo., 379 S.W.2d 614; Union Electric Co. v. Magary, Mo., 373 S.W.2d 16; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh P. Co., Mo., 323 S.W.2d 788; Woods v. Juvenile Shoe Corporation of America, Mo., 361 S.W.2d 694; Annotation 97 A.L.R. 2d 616. In the instances in which indemnity was allowed there was a prior express contract between indemnitee and indemnitor or there was vicarious liability (Inhabitants of Westfield v. Mayo, 122 Mass. 100, a leading case) as in the principal and agent cases. And, of course, relief was denied in the instances of joint and concurrent negligence and ultimately that in essence may be the difficulty here.

But by analogy and from these cases Beaumont has distilled an ingenious argument based essentially upon the premise of Sterling’s basic fault. Thus it is said that Beaumont brings its cross claim not because Dorothy was hurt by Sterling’s fault “but because it (Beaumont) was harmed by Sterling’s breach of obligations which it owed to Beaumont.” Beaumont’s contention need not be set forth in detail, it is said, however, that the manufacturer, in contrast to a mere retailer, was the only one in a position to know the product and how to defend it and that because of its misconduct Beaumont as indemnitee "has been exposed to liability” by the act of the indemnitor. The argument is interesting, persuasive in several respects but two or more cases from other jurisdictions cogently and compellingly answer all the questions presented by this particular record and appeal. In Rauch v. Senecal, 253 Iowa 487, 112 N.W.2d 886, the purchaser of a water heater sued the manufacturer, the jobber and supplier for injuries when the heater exploded. The jury found against the manufacturer but exonerated the jobber and supplier and the supplier in a cross claim tendered the defense of the action to the other parties and asked for its costs and attorneys’ fees incurred in defending the principal suit. In the first place, the court held that the supplier could not recover from the jobber because the jobber “was adjudged free from negligence in the first action” and thus there was no wrong by the jobber which the supplier was compelled to defend. The general rules relating to indemnity and the recovery of expenses and attorneys’ fees were set forth and it was pointed out that in determining whether the seller was defending its own negligent acts or those of the manufacturer was to be determined from “the charges of negligence against Senecal (the supplier) in the original suit.” The original petition was carefully analyzed and there as in this case it was alleged that the supplier or retailer was negligent “(i)n failing to inform persons using the heater of its dangerous safety characteristics when operated according to the directions of the defendants”. It was then pointed out and held that this was a direct charge of primary negligence against the supplier or retailer and, therefore, “a defendant who successfully defends against his own primary negligence, in part at least, may not recover his expenses as indemnity against a co-defendant who is found liable for negligence.” The Iowa case was followed in a similar relationship when unodorized liquid gas exploded in a basement in Leingang v. Bottled Gas Corporation, 7 Cir., 332 F.2d 959, and both cases were fashioned from Fidelity & Casualty Co. of New York v. Northwestern Tel. Exch. Co., 140 Minn. 229, 167 N.W. 800. In her petition, insofar as material here, the plaintiff Krug alleged that Beaumont was liable to her because negligent in the following respects: that it “failed to inform itself by literature or by any other means of the dangerous qualities of said drugs and of the reasonable likelihood of said drugs causing injury to persons using the same” and that it “failed to inform itself of the injuries being caused by said drugs and failed to warn the medical profession or the public through advertisements or in any other manner of the danger of the further use of said products * * These plainly, as indicated by the Rauch and Leingang cases, are charges of primary negligence against Beaumont. It may well be, had Beaumont been held liable in one or more submitted respects, that it in turn would have been entitled to indemnity against Sterling, but as far as this record is concerned it was defending its own alleged acts of primary negligence and that for the purposes of resolving this particular issue is the test.

For the indicated reasons the judgments are affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.