text:
    STATE of Missouri, Respondent, v. Albert Lonzo CANTRELL, Appellant.
    No. 51633.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, James M. Byrne, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
   HOUSER, Commissioner.

Albert Lonzo Cantrell appeals from a judgment of conviction of the crime of stealing money in an amount in excess of $100. §§ 560.156 (2); 560.161 (2), V.A.M.S. He was sentenced as an habitual offender to ten years confinement in an institution to be designated by the department of corrections. Appellant was represented in the circuit court by counsel who filed a motion for new trial in his behalf. His counsel filed a brief and orally argued the case on appeal. The state contends that no assignment of error in appellant’s motion for new trial has been preserved for review for the reason that the motion was not filed in time, and that a paper writing purporting to be a nunc pro tunc order bridging the time gap is a nullity and in any event is not before this Court.

The transcript on appeal shows that the verdict of guilty was returned on June 29, 1965; that defendant’s motion for judgment of acquittal or for a new trial was filed on July 13, 1965; that on that same date defendant was granted allocution, judgment was entered and sentence was pronounced in accordance with the verdict, and defendant took an appeal.

On March 14, 1966 the clerk of the Supreme Court received a letter from defendant’s attorney enclosing a copy of a “Nunc Pro Tunc Order” which the attorney recited that he received on March 16 (?) from the circuit judge, “showing that the Court did grant [him] 15 days to file a motion for new trial but that that order was through mistake not shown in the Court minutes.” The “Nunc Pro Tunc Order,” certified by the clerk of the circuit court in which defendant was convicted, follows:

“The defendant herein having been convicted by verdict of the jury on June 29, 1965, and the Court having allowed defendant fifteen (15) days to file motion for a new trial but said order not appearing in the record other than the entry, cause continued to July 13, 1965, and it having been the understanding of the parties and the intention of the Court that defendant do and have fifteen (15) days in which to file motion for new trial,

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED nunc pro tunc that defendant have fifteen (15) days from June 29, 1965 in which to file motion for new trial, said order being entered for the purpose of correcting the record.”

No motion was filed here to make this order a part of the transcript and no supplemental transcript on appeal was ordered or prepared pursuant to the provisions of Civil Rule 82.12 (c), V.A.M.R., which is applicable to criminal cases. Criminal Rule 28.18, V.A.M.R. The transcript reveals no record in the circuit court of a motion to amend the record or of the filing of any proceeding to obtain the nunc pro tunc order, or a notice to the state of the intention of appellant to procure an amendment nunc pro tunc, or of a hearing held thereon or that any evidence, or paper writing, notation or memorandum existed or was considered by the circuit court.

Criminal Rule 27.20 (a), V.A.M. R., which requires that a motion for new trial in a criminal case be filed within ten days after the return of the verdict, is mandatory. State v. Hooper, Mo.Sup., 364 S.W.2d 542. On application defendant may be granted an extension of time for an additional period of thirty days, but there is no record in this transcript of any application therefor or of any court order allowing such an extension. Appellant seeks to circumvent this omission by the mere filing of the certified copy of the so-called “Nunc Pro Tunc Order” with the clerk of this Court. This does not constitute a compliance with Civil Rule 82.12 (c), supra, and the purported order nunc pro tunc is a nullity. Not being a part of the transcript on appeal the “Nunc Pro Tunc Order” and the letter accompanying it, lodged with the Court since the filing of the transcript, “are not a part of any authenticated record, * * * are not properly here,” State v. Eno, Mo.Sup., 313 S.W.2d 720, 723 [2], and cases cited, and may not be officially considered. Accordingly, we do not take notice of the recitals therein that the court allowed defendant fifteen days to file his motion for a new trial, or that the circuit court record recites that the cause was continued until July 13, 1965, or that it was the understanding and intention of court and counsel that the additional time be allowed. If authority be needed for the ruling that the so-called nunc pro tunc order is a nullity it is to be found in State v. Hooper, Mo.Sup., 364 S.W.2d 542, where in a similar situation this Court held that the limitation of Criminal Rule 27.20 cannot be evaded by the mere expedient of a nunc pro tunc entry which, as in this case, did not appear to have been made after a hearing pursuant to notice and an opportunity for the opposite party to be heard, or to have been based upon any record, minute, or entry. Consequently, we must rule that none of the six points made in appellant’s brief has been preserved for appellate review.

We do, however, have jurisdiction of the appeal and are obliged to review the sufficiency of the information, verdict, judgment and sentence and render judgment as to those matters upon the record. Criminal Rule 28.02, V.A.M.R.

In addition to the allegation that defendant committed and was convicted of previous offenses, the first amended information charged that “on or about the 12th day of November, 1964, at and in the County of Adair and State of Missouri, the defendant, Albert Lonzo Cantrell did then and there willfully and unlawfully, and feloniously steal, take and carry away in excess of One Hundred ($100.00) Dollars, lawful money of the United States, from the premises of Baiotto and Gasperi, Inc., of Novinger, Missouri, without the permission or consent of the said owners thereof, and with the intent to permanently deprive the owners of the use and possession thereof and to convert the same to his own use.”

The first amended information is fatally defective because it does not aver the ownership of the property. State v. Ellis, 119 Mo. 437, 24 S.W. 1017; State v. Moore, Mo.App., 272 S.W. 710 [2]. The indictment in Ellis charged defendant with stealing two heifers “from one J. J. Williams, then and there being,” without alleging that Williams was the owner or in possession of the property alleged to have been stolen. In reversing the judgment the Court said: “The indictment is fatally defective in that it does not aver the ownership of the property. It should have averred, after describing the cattle, ‘of the property of one J. J. Williams, then and there being found, feloniously did steal, take, and carry away.’ 2 Bish.Crim.Proc. § 697; Kelly, Crim.Law, § 649; 2 East, P.C. 651, 778. The indictment nowhere avers who was the owner of the property, except inferentially.” It is a “well-settled and time-honored rule that an indictment or an information for larceny must set out the name of the owner of the property alleged to have been stolen, and that the proof must follow in this behalf the charge in the indictment or information. If there be a failure in these behalves, it is well settled that a fatal variance is created, and the errors are reversible. * * * ” State v. Long, 278 Mo. 379, 213 S.W. 436 [5]. “The gravamen of the offense charged is larceny, and an averment of the ownership of the property stolen constitute[s] a part of such charge, * * *.” State v. Flowers, 311 Mo. 510, 278 S.W. 1040, 1042. The reason for the rule is that in a stealing case the ownership of the property is not merely incidental but is an essential, constituent element of the crime charged in the information. In this connection see and compare State v. Lundry, 361 Mo. 156, 233 S.W.2d 734 [2]. Failure to allege a constituent element of an offense affects the substantial rights of the defendant, and such a failure is not cured by the statute of jeofails, § 545.030, V.A.M.S. and Criminal Rule 24.11, V.A.M.R. State v. Harris, Mo.Sup., 313 S.W.2d 664, 671 [7]. “The purpose of charging ownership is to show that the title or ownership is not in the accused, as he cannot be held for converting his own property, also to bring notice to the accused of the particular offense for which he is called to answer and to bar subsequent prosecution of the accused for the same offense.” State v. Nelson, 362 Mo. 129, 240 S.W.2d 140, 142 [2]; 52 C.J.S. Larceny § 79a. The strictness with which the rule has been applied in this state is illustrated in State v. Hammons, 226 Mo. 604, 126 S.W. 422, in which an information for burglary and larceny charging that defendant broke into “a storehouse belonging to the estate of J. W. Johnson, deceased” was held insufficient to sustain a conviction because it did not charge the ownership of the burglarized store in any person capable of owning the same.

The state contends that, the phrases “the owners” and “the said owners” appearing in the information cannot be read as referring to anything other than Baiotti and Gasperi, Inc. We are not so persuaded. “Charges of a criminal indictment or information should be pleaded with definiteness and certainty, and nothing of substance should be left to intendment or implication. State v. Herndon, 339 Mo. 283, 96 S.W.2d 376, 379 [2]; State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 929 [9]; State v. Barnes, 281 Mo. 514, 220 S.W. 848, 849 [1].” State v. Harris, supra, 313 S.W.2d, l. c. 669 [2], A fatal deficiency such as this cannot be supplied by intendment or implication. State v. Harris, supra, 313 S.W.2d, l. c. 670, 671 [7],

• The information having been fatally defective we will not examine the sufficiency of the verdict, judgment and sentence because without a valid information these questions are no longer live issues and a discussion of them would constitute obiter dictum. Reversal and remand in this situation, rather than reversal without remand, is the appropriate order. State v. Harris, supra.

The judgment is reversed and the cause remanded.

HIGGINS, C., concurs.

WELBORN, C., not sitting.

PER CURIAM:

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

All concur.

      . It is interesting, if not a coincidence, that this is the first point in appellant’s brief.

      . “In a larceny indictment the ownership of the stolen property may be charged either in one who was rightfully in possession as special owner, as, for example, consignee, carrier, or the like, * * * or in the general owner.” State v. Nicoletti, 344 Mo. 86, 126 S.W.2d 33. 36.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Thelma DETTLER, Plaintiff-Respondent, v. Carlos J. SANTA CRUZ and Ann Santa Cruz, his wife, and Joseph Lochirco and Betty Jean Lochirco, his wife, Defendants-Appellants.
    No. 32232.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.

      Cupples, Cooper & Haller, Irving L. Cooper, Clayton, for defendants-appellants.
    Daniel, Raskas & Ruthmeyer, H. Jackson Daniel, Jerome Raskas, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

Appellants seek reversal of a judgment rendered against them and in favor of respondent in the sum of $5,500.00 actual damages and $2,000.00 punitive damages rendered in respondent’s action for damages resulting from appellants’ false and fraudulent representations regarding the use of a building purchased by respondent from the appellants. Among other allegations of prejudicial error the appellants contend the trial court should have sustained their separate motions for directed verdicts offered at the close of all the evidence. In passing upon that allegation we are required to view the evidence in the light most favorable to the respondent and the facts bearing upon that point will be so stated. The parties will hereafter be referred to by name or by their designation in the trial court.

In February of 1961 the defendants purchased a house located at 5732 Waterman in the City of St. Louis. At the date of their purchase and throughout their ownership the house was rented as a three family dwelling. In April of 1961 the defendants received a letter from the administrative assistant to the building commissioner of the City of St. Louis stating that use of this dwelling as a three family apartment was illegal under the zoning ordinances of the city as it was located in an area zone for single family occupancy. On June 2 of that same year Mr. and Mrs. Santa Cruz were sent a similar letter. On the 12th of that same month they were sent another letter and subsequent letters were sent to them on December 12 and on January 4, October 8, and October 29 of 1962. The letter of October 8 stated that there was a violation of zoning ordinance 50547, section 6, in that occupancy was in excess of one family and warned the owners to “reduce occupancy to one family use at once.” The letter of October 29 contained the same admonition.

About the middle of November the defendants inserted an advertisement in a St. Louis newspaper offering this property for sale as three family income property. Plaintiff answered the advertisement and inspected the property with Mr. Santa Cruz who, during the course of the negotiations between the parties, told her each of the three units could be rented separately and what the rental of each unit was. Plaintiff inspected the property with her ex-husband, Dettler, who was to examine the construction of the building and on another occasion with Allen Bailey, her husband at the date of trial. Negotiations followed and on November 30, 1962, the defendant Santa Cruz prepared a sales contract which plaintiff and Santa Cruz signed. On December 6, 1962, the city sent yet another letter to Santa Cruz and also sent a copy to Mr. Lochirco. The closing of the sale took place at the end of that same month with plaintiff, her ex-husband Dettler, and the male defendants present. Also present was Mr. Friedman, a real estate agent whose presence and services Santa Cruz had arranged. The plaintiff never knew Mr. Friedman prior to the closing nor had any contact with him. She paid him $53.00 for his services at the closing. On April 25, 1963, the city directed a letter similar to those previously sent to Mr. Lochirco with a copy to Mr. and Mrs. Santa Cruz. In May of that year, having discovered the sale to the plaintiff, the city authorities sent a letter to her and followed with another to her on July 9. A suit against the plaintiff due to the violation of the city ordinance was set for trial the day following trial of the instant action.

Both Lochirco and Santa Cruz were called as an adverse witness by plaintiff. Lo-chirco’s testimony was that he was a barber by trade but that four or five times prior to the purchase of the property here involved he had bought income property to supplement his income; that Santa Cruz had negotiated the sale for all the defendants with the result that he first met plaintiff at the closing of the sale; that he had received letters from the building commissioner’s office starting in April of 1961 asking him to reduce the use of the property to a single family dwelling; and that he never told the plaintiff of these letters. Santa Cruz testified that he had purchased a couple of parcels of real estate but had never been in the real estate business; that he told plaintiff the property was a three family dwelling because that was the way they had purchased it; that “I knew that the City of St. Louis had sent us a couple of notices on this, notifying us that it was in Zone A, single family, which I knew it was * * * ”; that he had known of the restriction to single family occupancy for about 1Y2 years prior to the sale to plaintiff but that he believed the city to be in error as to this.

Some evidence regarding the physical appearance of the other buildings in the block in which this house was located is in order. Four or five doors away from the dwelling in question there was a large apartment building and the plaintiff also testified that there were three buildings across the street from the property here involved that appeared to her to be two family flats. The defendants rely upon certain portions of the testimony of one of the plaintiff’s witnesses which, they contend, illustrates that plaintiff was guilty of contributory negligence as a matter of law and was put upon notice to investigate the actual zoning conditions further than merely relying upon Santa Cruz’s representations upon observing that the dwelling here involved was the only apartment in the block. This evidence was as follows: One of plaintiff’s witnesses was asked about the buildings in the block in which the dwelling here involved was located and answered that the majority, of the buildings were single family dwellings. He was then asked if any of the buildings on the block were apartments and replied that he could not answer without looking again at the block as it had been some time since he had viewed this area. The answers upon which the defendants rely followed. The witness was asked, “Are all of the buildings on there homes ? ” He answered that they all were except for one at the corner. He was then asked if all the buildings on both sides of the street were “homes” and his answer was yes. The next question was whether or not it would appear to anyone walking down the street that those buildings were “homes” and his answer was that it would.

The plaintiff submitted her case under a modified version of MAI 23.05. The first paragraph of that instruction required the jury to find Santa Cruz was the agent for the other defendants and was acting as such and within the scope of this agency for the others when he dealt with the plaintiff with respect to this property. The second paragraph of that instruction reads: “Second, defendant Carlos Santa Cruz represented to plaintiff that the real estate consisted of three separate apartment units which could be separately rented for income to the purchaser of the real estate, intending that plaintiff rely upon such representation in purchasing the real estate, * * The third paragraph requires the jury to find the representation was false.

The plaintiff did not offer a measure of damage instruction taken from MAI but submitted her own instruction on that issue. It informed the jury that in the event they found for plaintiff they were to award her “ * * * such actual damages as she sustained, and the measure of such actual damages is the difference between the price paid by plaintiff, and the fair market value of said real estate.” The evidence going to the issue of damages was that the plaintiff paid $18,000.00 for this property in December 1962. The defendants had paid $18,500.00 for it when they purchased it in February 1961, and had originally advertised the property for sale at that figure. Plaintiff’s evidence was that the fair market value of the property as of the date of sale was $12,500.00.

The defendants also complain that the trial court improperly gave Instruction No. 9 which contains three possible verdict forms. This instruction was referred to by the trial court as MAI 32.11, and none of the verdict forms contain spaces allowing the jury to find in favor of any one or more of the defendants as provided in MAI 32.05 (modified).

In addition to contending plaintiff failed to make a submissible case defendants also raise other allegations of prejudicial error which must be ruled in order to arrive at a proper disposition of this appeal. These are: the trial court prejudicially erred in the giving of plaintiff’s verdict-directing instruction; in the giving of Instruction No. 5, the measure of damage instruction; and in the giving of Instruction No. 9 containing the various verdict forms. The decision reached herein upon those contentions renders unnecessary any ruling upon defendants’ other allegations of prejudicial error and for that reason the factual matters bearing upon them have not been included in this opinion.

There are two facets to defendants’ first contention. First, they contend that, as a matter of law, fraud cannot he predicated upon a representation as to a zoning law. That is the general rule as this court recognized in Emily v. Bayne, Mo.App., 371 S.W.2d 6637, l. c. [6-8], p. 668. However, as we stated in that case at the citation above given, the rule is subject to two exceptions, one of which is applicable in the instant case. It is that an action for fraud and deceit will lie even as to a representation as to a matter of domestic law such as here involved where one party possesses or professes to possess a superior knowledge of the law and takes advantage of the other party’s ignorance of the law to mislead him. See Gamel v. Lewis, Mo.App., 373 S.W.2d 184. Santa Cruz had knowledge that the use of this dwelling as a three family residence was in violation of the applicable provisions of the city’s zoning ordinance. From the continued notices sent to him he had knowledge that the defendants were being requested by the city to discontinue the use of this dwelling as a three family residence. In spite of this knowledge Santa Cruz not only failed to inform the plaintiff of the city’s notices to him but in fact told her that she could continue to rent the dwelling as three apartment units. Under the factual situation here involved the plaintiff can maintain her action for fraud and deceit even though the representation made was as to a matter of use of this dwelling under the zoning ordinance. Gamel v. Lewis, supra.

The second argument advanced by defendants to support their contention plaintiff failed to make a submissible case is that plaintiff was guilty of contributory negligence as a matter of law. This argument is based upon the testimony of one of the witnesses that the fact the other houses on the block on both sides of the street were homes and not apartments would be apparent to anyone who walked down the street. Taken in context and read in conjunction with this same witness’s answers to the questions immediately preceding the answer upon which defendants rely, it is apparent that when giving the testimony upon which the defendants rely the witness was speaking of the outward appearance of these buildings and was not attempting to testify that, despite the fact that they outwardly had the appearance of single family dwellings, these were not homes which had been converted into apartments even as the one she was purchasing. Such an interpretation of the evidence is in fact buttressed by this same witness’s earlier statement that the majority of the buildings were single family dwellings. From this statement the jury could well infer there were other converted homes on this block. In any event, this is not plaintiff’s best evidence on this issue. Her own testimony was that there were other buildings on the block that looked like apartments to her. It is undisputed that there was an apartment building on the corner of the block this dwelling was located in.

Plaintiff’s participation in the purchase of two previous single family residences cannot be held, as a matter of law, sufficient to qualify her as an expert on zoning matters nor give her reason to make further inquiries after receiving Santa Cruz’s assurances as to the continuance of three family rental. Neither her present husband nor her ex-husband were shown to be experienced in real estate transactions or otherwise qualified so that they could reasonably have been put on inquiry as to the true facts regarding Santa Cruz’s representation. Plaintiff’s real estate agent was used by her only for purposes of closing the transaction and his employment was procured by the defendants. We are required to view the evidence in the light most favorable to the plaintiff. Doing so we cannot say that reasonable minds could not differ as to whether the factual situation here involved was sufficient to put the plaintiff on her guard and cause her to make inquiries as to the truth or falsity of Santa" Cruz’s representation. Absent such a holding we cannot hold the plaintiff guilty of contributory negligence as a matter of law. We find no error in the denial of defendants’ motions for directed. verdict.

With reference to the plaintiff’s verdict-directing instruction the defendants argue that had the second paragraph of that instruction contained, following the word “income,” the words “according to the zoning laws of the City of St. Louis,” it would have been proper. Absent that phrase they contend the instruction permits “ * * * the jury to find against appellants when, under all of the evidence, the said Paragraph Second as it now reads, is not a false or incorrect statement. * * * Thus, the crux of a fraud suit, to wit, the falsity of the statements was wholly lacking in said Instruction Number Three.” Defendants’ position on this issue is without merit. First, because it is clear that under MAI 23.05, as modified, there is no requirement nor need to include the basis upon which the representation was rendered false. It is sufficient that the jury be required to find the representation false and unnecessary that they also be required to find why it was false. Secondly, defendants’ argument would have the jury, and this court, disregard the uncontradicted evidence that regardless of what the defendants were illegally doing as to the rental of this dwelling, they had notice they could not legally do so. Inherent in the representation that this dwelling consisted of three separate apartment units which could be separately rented for income was the element that a purchaser could legally do so. This is particularly true where, as here, the defendants possessed the superior knowledge that the dwelling could not legally be so rented. We find no error in the giving of plaintiff’s verdict-directing instruction.

The defendants’ attack upon Instruction No. 5, the measure of damage instruction, is twofold. They first contend that the instruction amounts to a positive misdirection of the jury and is therefore reversibly erroneous. Secondly, they contend that since this case was tried after January 1, 1965, it was error to give any instruction other than MAI 4.01. We do not reach the second contention for it is clear that Instruction No. 5 misdirects the jury and states an improper measure of actual damages.

With commendable candor the plaintiff states in her brief: “Admittedly, according to Missouri law, the proper measure of damages in this case is the difference between the actual value of the property in question and its value, if the property had been as represented.” This indeed is the law. Miller v. Wilson, Mo.App., 381 S.W. 2d 31, 1. c. [9], p. 38 and cases there cited. Plaintiff argues that “[t]he calculations under either measure of damages would result in identical verdicts” and therefore the error was not prejudicial. This argument is based upon plaintiff’s contention that there were three items of evidence from which the jury could have found that $18,000.00 was the value of the property had it been as represented. These are stated to be the price paid for this property by the defendants in February 1961, the advertised price (both figures being $18,500.00) and the price the plaintiff paid. Since, plaintiff goes on, the actual fair market value was testified to be $12,500.00 that value remains constant with the result that the verdict for $5,500.00 actual damages would have occurred under either the measure of damages submitted or that which should have been, submitted. We cannot agree. There is no evidence which would relate the price defendants paid, the advertised price, or the price plaintiff paid to the value of the property had it been as it was represented to be. We do not believe that the mere existence of these items, standing alone as they do in this record, would authorize the jury to draw any relation between them and the vital and missing evidence; i. e., the value of this property had it been as represented. That being so, the positive misdirection of the jury contained in the measure of damage instruction constitutes reversible error.

There is one further matter that, since it is most likely to arise again upon retrial, should be disposed of. The defendants attack the giving of Instruction No. 9, MAI 32.11, on the ground that the verdict forms therein provided prevented the jury from rendering a verdict for the plaintiff and against any number less than all of the defendants. It is urged that MAI 32.05, modified to provide for four parties, should have been given. However, it should be noted there is no contention here raised that there is any error due to the fact that regardless of their joint liability for actual damages punitive damages might not be awarded against one or more defendants.

Under the particular factual situation here presented we find no error in the giving of Instruction No. 9. It will be recalled that the first paragraph of plaintiff’s verdict-directing instruction required the jury to find as true the plaintiff’s theory that Santa Cruz was acting as the agent of the other defendants in conducting the negotiations with the plaintiff regarding the sale of this building. Read together the first and second paragraphs of Instruction No. 3 required the jury to find that Santa Cruz was acting as agent for the other defendants at the time the misrepresentation was made. In view of the plaintiff’s theory as to Santa Cruz’s agency and the uncontradicted evidence to support it, the giving of this instruction precluding the jury from finding against less than all of the defendants was not error.

It follows from the rulings above that this judgment should be reversed and the cause remanded to the trial court for a new trial. Since the error which necessitates this action goes only to the element of damage, it would seem that the retrial should be limited to that issue. However, the plaintiff prayed for and obtained a judgment for punitive as well as actual damages. When confronted with a similar situation in Ackmann v. Keeney-Toelle Real Estate Company et al., 401 S.W.2d 483, opinion of April 12, 1966, the Supreme Court of this state held that the retrial should be upon all issues and we will so order.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded to the trial court for a new trial.

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


author: CLEMENS, Commissioner.

text:
    Viola E. SCHRUM, a Minor, By and Through her Father and Next Friend, Dolphin T. Schrum, Plaintiff-Respondent, v. Charles M. CISCELL, Defendant-Appellant.
    No. 32281.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.

      Dearing, Richeson, Weier & Roberts, Hillsboro, for appellant.

      Thurman, Nixon, Smith & Howald, by Jeremiah Nixon and Robert Lee Smith, Hillsboro, for respondent.
   CLEMENS, Commissioner.

Plaintiff sought damages for injuries she sustained when defendant drove his pickup truck into her stalled automobile. She submitted her case under the humanitarian doctrine, and got a verdict for $5,000. Judgment followed, and when defendant’s after-trial motion was denied he appealed.

The issues raised here: Did the favorable evidence show that plaintiff’s peril became obvious in time for defendant to avoid the collision by stopping or swerving? Was it error to permit plaintiff’s medical witness to answer a hypothetical question over defendant’s general objection? Was the doctor’s opinion that plaintiff’s injuries were “directly related” to the accident inadmissible on the ground that such a statement did not show causation? And, was defendant’s closing argument improperly restrained when defendant argued that the plaintiff was negligent before and after getting into a position of immediate danger?

The first assignment questions the sufficiency of the plaintiff’s evidence. We will state the admitted facts as to the locale, and the evidence favoring plaintiff as to the collision.

On a cold, clear afternoon the plaintiff drove from her home in DeSoto eastward on Flucom Road, an 18-foot blacktop country road. Her car stalled and was sitting in the middle of the road, while plaintiff waited for another car to push hers back to DeSoto. There was sufficient room, however, for a car to pass safely on either side of plaintiff’s stalled car. Then the trouble began. The road ahead of plaintiff ran level and straight for 473 feet and then gently curved. At that distance she saw defendant’s pickup truck heading toward her at a speed of 30 to 40 miles an hour. Plaintiff began sounding her horn, and kept on sounding it. At that same distance the defendant saw plaintiff’s car, realized it was motionless, and took his foot off the accelerator. But he kept moving. Finally defendant acted: he shifted into second gear, next applied his brakes, and then tried to swerve around plaintiff’s car. He laid down 43 feet of skid marks but was still going 25 miles an hour when he struck the left side of plaintiff’s car with the left side of his truck.

Defendant’s point here is that plaintiff did not make a submissible humanitarian case because she failed to prove defendant’s ability to stop or swerve “after he should have seen plaintiff could not or would not remove herself from his path.” In his brief the defendant frankly concedes that after he first saw plaintiff stopped in the roadway “there remained ample time and distance within which he could have avoided the collision.” He argues, however, that the plaintiff was not then in immediate danger. This argument is at war with defendant’s own testimony that he decelerated when he first saw plaintiff’s stopped car at a distance of 473 feet. A jury could have reasoned that at this point defendant actually was aware that plaintiff was in immediate danger unless he took evasive action. Moss v. Nehman, Mo.App., 247 S.W.2d 305 [3, 4], The sufficiency of the evidence is established beyond doubt by the case of Stradford v. Bluefeather, Mo., 384 S.W.2d 541 [2], where the Supreme Court said:

“In this case, respondent was stopped with her car at a 45-degree angle to the imaginary center line, partially on either side of the center of the road. In this situation she was necessarily in the path of any northbound traffic then on Nebraska Avenue. Respondent could reasonably be found in imminent peril when so stopped partly in appellant’s lane of travel with appellant bearing down upon her at the place where it became apparent to appellant that unless some act or thing intervened to interrupt the collision course thus existing, collision was inevitable and injury was reasonably certain, Yarrington v. Lininger, Mo., 327 S.W.2d 104, 109 [8-10]; and the place or position of imminent peril was properly for the jury to determine in this case. [Citing cases.]”

Next, defendant makes two points about the testimony of plaintiff’s examining physician, who testified by deposition. Therein the doctor was asked a hypothetical question about causation. Defendant objected on the general ground that “the question hypothesizes facts not in evidence and omits material facts which are in evidence.” Defendant declined the court’s gratuitous invitation to make the objection specific. There was no error here. An objection to a hypothetical question is sufficient only insofar as it specifically points out what has been improperly assumed and what has been improperly omitted. Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399 [2].

In the deposition the doctor was asked his opinion as to what “caused” plaintiff’s injuries. He answered that it was his opinion that the injuries were “directly related to” the accident. Defendant made no objection then, but when the deposition was offered in evidence he objected that the answer was “insufficient” because of the difference in the word “caused” in the question and the words “directly related to” in the answer. The objection was overruled. There is no need for a semantic discussion, for the doctor’s meaning was obvious and went unchallenged on cross-examination. At other places in his testimony the doctor had said plaintiff’s physical condition “was the result of” an injury. Where it appears, as it does to us here, that by the whole of a physician’s testimony he is expressing his expert opinion of the cause of a condition, imprecise language will not rob his statement of its evidentiary value. Walker v. St. Louis Public Service Co., 362 Mo. 648, 243 S.W.2d 92 [2], The testimony should be appraised by its entirety, not only by an isolated statement. Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306 [3]. Furthermore, this is the type of case in which there were other facts that, together with the medical testimony, constituted sufficient evidence from which the jury reasonably could have found the necessary causal connection. Rogers v. Thompson, Mo., 308 S.W.2d 688, l. c. 694. The court properly admitted the answer.

Last, the defendant contends that the trial court erred in hampering his argument that the collision was caused by acts and omissions of the plaintiff. Plaintiff had submitted her case by MAI 17.15; the defendant conversed by MAI 29.06(6). The only issue of liability was the defendant’s humanitarian negligence.

In his closing argument defendant ignored this issue. Instead, he argued that plaintiff’s automobile should have been pushed to one side of the road; that there would have been no collision had plaintiff gotten out and posted guards fore and aft to signal other vehicles; that after the plaintiff saw the defendant she should have given him an arm signal as a warning that her car was stalled; and that not only the defendant, but everyone else on the road, had a duty to exercise the highest degree of care. The court sustained only one of the plaintiff’s numerous objections to these arguments.

The defendant’s argument was a patent effort to inject a false issue into the case. He first attempted to exculpate himself by arguing that the plaintiff was negligent in getting into a position of peril. When finally restrained from continuing that argument, he forged ahead by arguing that plaintiff was negligent after her peril arose. A long line of cases has laid down the rule that in humanitarian cases it is of no consequence what brings about or continues a plaintiff’s peril, even though it be sheer hardihood or recklessness; and this covers the whole range of self-exposure to peril from mere negligent inattention to utter and continuing disregard of known and avoidable danger. Wyckoff v. Davis, Mo., 297 S.W.2d 490 [2]; Daniels v. Smith, Mo., 323 S.W.2d 705 [5], It was improper for defendant to emasculate these principles by his argument. It has been said that one thing lawyers confidently know is that in a humanitarian case it is improper to argue that a plaintiff was negligent. Fisher v. Williams, Mo., 327 S.W.2d 256 [3]. Defendant’s point is denied.

The judgment should be affirmed.

PER CURIAM.

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

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


author: STONE, Presiding Judge.

text:
    James Winfred MOSS and Mildred E. W. Moss, husband and wife, Paul S. Hollenbeck, trustee, and Alex C. Hayes, Jr., and Anna Hayes, husband and wife, Plaintiffs-Appellants, v. A. L. JAMES and Carney James, Defendants-Respondents.
    No. 8506.
    Springfield Court of Appeals. Missouri.
    May 12, 1966.
    Claude T. Wood, Richland, Harold S. Hutchison, Vienna, for plaintiffs-appellants.
    Northern & Crow, Rolla, for defendants-respondents.
   STONE, Presiding Judge.

Plaintiffs James Winfred Moss and Mildred E. W. Moss, husband and wife, instituted this action in the Circuit Court of Maries County by the filing of their petition in two counts. In Count I they alleged that, at all times therein mentioned, they had been the owners of certain described real estate in Maries County upon which defendants A. L. James and Carney James had entered, erected fences, cut timber, removed gravel, and changed the natural channel of a creek, thereby damaging plaintiffs; and that defendants threatened to continue cutting timber and otherwise damaging said real estate by reason of which plaintiffs would suffer irreparable injury for which they had no adequate remedy at law. The prayer was for a temporary injunction (which was issued), to be made permanent upon trial, restraining and enjoining defendants from entering upon the described real estate. In Count II plaintiffs sought monetary damages of $5,000 for the same allegedly wrongful and wanton acts of defendants. The other parties plaintiff subsequently added without objection were the trustee and beneficiaries in a deed of trust covering the real estate described in the petition.

In due time, defendants filed their answer to both counts; and defendant A. L. James filed a counterclaim in which he asserted his ownership, by reason of adverse possession, of certain real estate described therein and prayed “the court to try, ascertain, and determine the estate, title and interest of the defendant A. L. James and plaintiffs” in and to that real estate, to adjudge and decree that “defendant A. L. James is the fee simple owner” thereof and that “plaintiffs . . . have no right, title or interest in and to said real estate,” and to enjoin plaintiffs from claiming thereafter any right, title or interest therein.

The transcript shows that plaintiffs and defendant A. L. James owned contiguous tracts and that, upon trial, the primary issues were as to the precise location of the boundary line between those tracts and, regardless of the precise location of that line, as to whether or not defendant A. L. James had acquired title by adverse possession to a disputed strip of land along that line. The court’s decree found the issues against plaintiffs on both counts of their petition and for “defendant,?” on the counterclaim, specifically found, adjudged and decreed “that defendant A. L. James is vested with the fee simple title to the real estate hereinafter described having established title by adverse possession under [V.A.M.S.] Section 516.010,” then found, adjudged and decreed that “plaintiffs have no right, claim or interest in said estate or title whatsoever,” dismissed plaintiffs’ petition, and dissolved the temporary injunction obtained by them. Plaintiffs appeal.

The parties have filed with us a “stipulation” to transfer the case to the Supreme Court of Missouri as one directly involving the title to real estate. Art. V, Sec. 3, Mo.Const. of 1945, 2 V.A.M.S. However,- since appellate jurisdiction cannot be conferred even by express consent [Mack v. Mack, Mo., 281 S.W.2d 872, 873(1); Higgins v. Smith, 346 Mo. 1044, 1047, 144 S.W.2d 149, 151(4); Morrow v. Caloric Appliance Corp., Mo.App., 362 S.W.2d 282, 283 (1); State v. Egan, Mo.App., 272 S.W.2d 719, 722(2)] and since capable counsel occasionally enter into such stipulations while laboring under a mistaken belief concerning appellate jurisdiction [e. g., State ex rel. State Highway Commission v. County of Camden, Mo.App., 394 S.W.2d 71], we have treated the stipulation of counsel as a motion to transfer, have reviewed the transcript on appeal, and have considered the request of counsel on its merits.

' Our Missouri cases hold that title to real estate is involved directly in an appellate jurisdictional sense where a defendant avers his ownership of real estate and prays a determination and declaration of title either in his answer [Barker v. Allen, Mo., 273 S.W.2d 191, 192(1); Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295(1), 161 A.L.R. 450, transferred from Mo.App., 185 S.W.2d 73, 75(3)] or, as here, in his counterclaim [George v. Jester, Mo.App., 248 S.W.2d 453, transferred to Mo., 255 S.W.2d 783]; and, without regard to the pleadings, the same is true where, as is also the situation here, the judgment rendered by the trial court determines title. State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544, 545(3, 5, 6); Riley v. LaFont, Mo., 174 S.W.2d 857(1); Domyan v. Dornin, Mo.App., 348 S.W.2d 360, 362(4), transferred to Mo., 356 S.W.2d 70. In the instant case, the judgment both sought and rendered directly involved title to real estate in an appellate jurisdictional sense. Hence, the Supreme Court is vested with exclusive appellate jurisdiction [Art. V, Sec. 3, Mo.Const. of 1945], and the Clerk of this court is directed to transfer this cause forthwith [V.A.M.S. § 477.080], together with a copy of this order, to the Clerk of the Supreme Court.

RUARK and HOGAN, JJ., concur.


author: DOERNER, Commissioner.

text:
    Herman L. WEATHERS, Plaintiff-Respondent, v. FALSTAFF BREWING CORPORATION, a Corporation, and Clarence Edward Bauer, Defendants-Appellants.
    No. 32327.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.

      Heneghan, Roberts & Cole, Joel D. Mon-son, St. Louis, for defendants-appellants.
    Samuel A. Goldblatt, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff sought by this action to recover the sum of $10,000 for personal injuries alleged to have been sustained when the car in which he was a passenger collided with one owned by defendant Falstaff Brewing Corporation and driven by its employee, defendant Bauer. Upon a trial to a jury a verdict signed by nine jurors was returned in favor of defendants. Plaintiff thereafter filed his motion for a new trial in due time, which the court sustained on the ground that the verdict was against the weight of the evidence. Defendants’ appeal duly followed.

All that appears under the heading of “Statement of Facts” in defendants’ brief is a digest or résumé of the testimony of named witnesses. As our appellate courts have repeatedly pointed out, this is not a compliance with Civil Rule 83.05, V.A.M.R., which provides in paragraph (a) that the appellant’s brief shall contain “ * * * (2) A fair and concise statement of the facts without argument * * *,” and in paragraph (c) that the “ * * * statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. * * * ” Domijan v. Harp, Mo., 340 S.W.2d 728; Swope v. Emerson Elec. Mfg. Co., Mo., 303 S.W.2d 35; Repple v. East Texas Motor Freight Lines, Mo., 289 S.W.2d 109. If desired, the statement in narrative form may be followed by a statement of testimony of the witness relevant to the points raised on appeal, Civil Rule 83.05(c), V.A.M.R., but the statement is required. The reasons for observing the rules have often been stated, Ambrose v. M.F.A. Co-Operative Ass’n of St. Elizabeth, Mo., 266 S.W.2d 647; Jacobs v. Stone, Mo., 299 S.W.2d 438, and it may not be amiss to again point out that a failure to comply with them is just grounds for a dismissal of the appeal. Ambrose v. M.F.A. Co-Operative Ass’n of St. Elizabeth, supra; Jacobs v. Stone, supra; Tidwell v. Gulledge, Mo.App., 349 S.W.2d 404. We are cognizant of the fact that such a dismissal is a drastic action, and because of its effect on the appealing litigant and our anxiety to dispose of a case on its merits we have been lenient (perhaps overly so) in our enforcement of the rules. It should not be assumed, however, that counsel may persist in ignoring the rules with impunity or that we will continue to countenance their violation.

The first of defendants’ two points is that the plaintiff failed to make a sub-missible case against the defendants. They take issue with plaintiff as to the standard to be followed in reviewing the evidence in the determination of that question, and contend in their reply brief that we must view the evidence in the light most favorable to defendants since the verdict was in their favor. That is not the law, and the cases of La Fata v. Busalaki, Mo., 291 S.W.2d 151 and Brooks v. St. Louis Public Service Co., Mo., 275 S.W.2d 252, cited in support of their argument do not so hold. The issue in La Fata was whether there was sufficient evidence to justify the giving of an instruction on plaintiff’s contributory negligence, and all that the court there held was that in deciding that question it would state the evidence in the light most favorable to defendant, on whose behalf the instruction was given. In Brooks the point for determination was whether there was evidence to support the hypothesis submitted in a sole cause instruction given by the defendant bus company, and the court likewise said that in deciding that issue it would consider the evidence in the light most favorable to defendant. The rule followed in determining whether there was sufficient evidence to justify the giving of an instruction is not applicable, of course, to the manner in which the evidence is to be viewed when a defendant contends that the plaintiff did not make a submissible case. In such a situation the correct rule is that in making that determination we review the evidence from a standpoint favorable to plaintiff, give him the benefit of any part of defendant’s evidence favorable to him, and not contrary to his fundamental theory of recovery, give him the benefit of all reasonable inferences from all the evidence, and disregard defendant’s evidence unfavorable to him. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Fenneren v. Smith, Mo., 316 S.W.2d 602; Peterson v. Tiona, Mo., 292 S.W.2d 581.

Plaintiff’s petition contains eight allegations of primary negligence and one on the humanitarian doctrine, hut his sole submission was on the alleged failure of Bauer to keep a proper lookout. We agree with defendants that our inquiry with respect to the sufficiency of the evidence should be limited to the only issue of negligence submitted. Herr v. Ruprecht, Mo., 331 S.W.2d 642; Karr v. Chicago, R. I. & P. R. Co., 341 Mo. 536, 108 S.W.2d 44; Krinard v. Westerman, 279 Mo. 680, 216 S.W. 938. Viewing the evidence in the light stated, the jury reasonably could have found the facts to be as stated herein. The collision involved in this litigation occurred on September 25, 1963, about 5:00 P.M., d. s. t., at the intersection of Klemm, a north-south street, with Blaine, an east-west street, in the City of St. Louis. The weather was clear and the paved streets were dry. Plaintiff, employed as a welder at the American Car and Foundry Company plant, had been offered and had accepted a ride home by one Sanders, a fellow-employee, in the latter’s 1953 Nash Rambler. Sanders was driving northwardly on Klemm. Defendant Bauer, a sales representative for defendant Falstaff, had made a business call at a tavern at Blaine and Tower Grove, and was driving eastwardly on Blaine, on his way home. He was using a 1963 Chevrolet Impala four door sedan, owned and furnished to him by the brewery. Plaintiff testified, both at the trial and in his deposition (read in part by defendants) that when the front of Sanders’ Nash was 5 feet south of the south curb line of Blaine he saw the defendants’ Chevrolet, which was then 10 feet west of the west curb line of Klemm. He stated that about 100 feet south of the intersection Sanders had reduced his speed from 25 m. p. h. to 20, at which rate he was traveling as he entered the intersection. Plaintiff estimated the speed of defendants’ car at the time he saw it at 35 m. p. h., and testified that he yelled “Look out” and that the impact occurred immediately thereafter. He stated that he did not see the actual collision of the two vehicles.

The burden of defendants’ defense was that a church on raised ground, surrounded by a hedge, located on the southwest corner of the intersection prevented Bauer from seeing far enough south on Klemm to see Sanders’ approaching car. Bauer testified that he drove into the intersection at a speed of 20 miles per hour, and that when the front of his car was even with the west curb line of Klemm he looked to his right but could not see farther south than 30 feet because the hedge obstructed his view. He saw no vehicle on Klemm within that distance. He did not actually see Sanders’ car, he related, until the front of his Chevrolet had traveled 18 feet, 3 feet past the center line of Klemm, at which time Sanders’ Nash was only 5 feet from the right side of his car.

Had the foregoing been all of the testimony we agree that it would be doubtful whether plaintiff made a submissible case of failure to keep a proper lookout. But it was far from all. Defendants’ defense of Bauer’s claimed inability to see farther than 30 feet south on Blaine was controverted by Bauer’s own testimony, by the physical facts as they appear on a concededly accurate plat, and by the testimony of Barbara Joann Rowe, one of defendants’ witnesses. Bauer testified on cross-examination that the distance from the front bumper of his car to the driver’s seat was approximately 3 feet. He agreed that the distance between the west curb of Klemm and the hedge on the east side of the church was 8½ feet, as shown on the plat. No obstruction to his view south on Blaine, other than the hedge, was claimed. In short, by his own testimony and the agreed physical surroundings he was east of the hedge at the time he claimed he looked to the south and there was nothing to prevent his observance of Sanders’ car. This is borne out by the testimony of defendants’ own witness, Barbara Joann Rowe, who stated that she was walking northwardly on the sidewalk on the west side of Klemm, and that when she was about 25 feet south of the intersection she saw Bauer’s Chevrolet directly in front of her. Sanders’ Nash, at that time, was somewhere between her and the intersection. It would seem obvious that if Miss Rowe, walking on the west side of Blaine, saw Bauer’s Chevrolet directly in front of her then Bauer could have seen much farther south on Blaine than the 30 feet he claimed was all that was visible. Further, Miss Rowe’s testimony placed Sanders’ car within that distance, so that even under Bauer’s alleged limited visibility it should have been seen by him.

A motorist is under the continuous statutory duty to exercise‘the highest degree of care at all times and to keep a careful and vigilant lookout for other persons and vehicles on the highway. Section 304.010, RSMo 1959, as Amended, V.A.M.S.; Stradford v. Bluefeather, Mo., 384 S.W.2d 541; Braun v. Hoffmeister, Mo., 366 S.W.2d 406. To fulfill that duty he is required to look in such an observant manner as to enable him to see that which a person in the exercise of the highest degree of care would be expected to see under similar circumstances. Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114; Witt v. Peterson, Mo., 310 S.W.2d 857. And where one is charged with the duty to look and to look is to see, he must be held to have seen what looking would have revealed. Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73; Witt v. Peterson, supra. We hold that there was sufficient substantial evidence to make a submissible case on the failure to keep a proper lookout.

Defendants’ remaining point is that the court abused its discretion in granting plaintiff a new trial on the ground that the verdict was against the weight of the evidence. The action of the trial court in sustaining the motion for a new trial on this ground is presumptively correct, State ex rel. State Highway Commission v. Vaught, Mo., 400 S.W.2d 153, and a trial court is vested with an inherent and broad discretion in granting one new trial on that ground. State ex rel. State Highway Commission v. Belvidere Development Co., Mo., 315 S.W.2d 781; Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347. Our Supreme Court recently had occasion to re-examine and re-affirm the rule that the granting of a new trial by the trial court on the ground that the verdict was against the weight of the evidence will not be interfered with on appeal when there is substantial evidence to support a verdict for the party to whom a new trial is granted. Clark v. Quality Dairy Company, Mo., 400 S.W.2d 78. And an appellate court will not disturb the ruling of the trial court except in the event of a manifest abuse of its discretion. Clark v. Quality Dairy Company, supra; State ex rel. State Highway Commission v. Vaught, supra; Dawson v. Scherff, Mo., 281 S.W.2d 825. In support of their claim that the trial court abused its discretion the defendants point to a memorandum filed by the court in which it purported to explain its reasons for its action. From this they argue that the court’s action was based on certain inadmissible testimony, and other extraneous reasons. But the order in this case clearly and unequivocally states that the new trial was granted because the verdict was against the weight of the evidence. And when an order is unambiguous, as here, resort may not be made to a memorandum to countervail or dispute the order, as defendants endeavor to do. Hammond v. Crown Coach Co., 364 Mo. 508, 263 S.W.2d 362; Bierman v. Langston, Mo., 304 S.W.2d 865. Such a reference may be made only for the purpose of supporting or explaining an ambiguous, uncertain or incomplete record entry. Hammond v. Crown Coach Co., supra; Ponyard v. Drexel, Mo.App., 205 S.W.2d 267; Snell v. Overfelt, Mo.App., 307 S.W.2d 716. We have held that there was sufficient substantial evidence to make a submissible case, which would support a verdict for plaintiff. The trial court, therefore, did not abuse its discretion in sustaining plaintiff’s motion for a new trial on the ground that the verdict was against the weight of the evidence. State ex rel. State Highway Commission v. Vaught, supra.

The order granting the new trial is affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, new trial is granted.

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


author: RUDDY, Judge.

text:
    Foster MORGAN, (Plaintiff) Appellant, v. KREY PACKING COMPANY, (Defendant) Respondent.
    No. 31859.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.
    Harry J. Nichols, St. Louis, for appellant.
    Robert C. Reis, St. Louis, for respondent.
   RUDDY, Judge.

This is an appeal by employee-claimant from a judgment of the Circuit Court of the City of St. Louis, Missouri, affirming an award of the Industrial Commission denying compensation. The Industrial Commission reversed the award and finding of the Referee who had allowed the claimant permanent partial disability to the left knee. Employer and claimant appealed to the Commission, claimant contending the award was inadequate.

The employee’s claim was dated August 31, 1962, but stamped thereon was the following: “Received by the Division of Workmen’s Compensation on September 8, 1962.” At the hearing before the Referee claimant was given permission to amend his claim to show that the injury he received occurred on or about March 1960, instead of March 1961, appearing in his claim. The self-insured employer filed an answer and denied the claim generally; denied it received notice of the injury and asserted the statute of limitations barred the claim.

Claimant’s testimony shows that in March 1960 (the exact date is not shown) while coming down steps at his employer’s plant he bumped his left knee on a rail, or, as he said in another part of his testimony, on a post that was standing by the rail. He said he “just kind of shocked it,” but that it did not bother him until the next day. On the next day he went to see the company nurse on the employer’s premises and told her what happened and showed her his swollen knee. The nurse told him to come in the next day to see the doctor and on that day upon seeing the doctor he was advised to go to the doctor’s office. He said he went to the doctor’s office “about the sixth” of March 1960, at which time the doctor aspirated the left knee and removed blood and fluid. Three days after his visit to the doctor’s office, he again went to the nurse and she gave him an Ace elastic bandage and told him to wear it. In his testimony he said he wore the elastic bandage “every week” and he has never gone “a week without wearing that bandage.” He was not wearing the elastic bandage on the day of the hearing and said this was because he was not working. The nurse never did ask claimant to return the elastic bandage.

Claimant said the wearing of the bandage helped to support the knee. Claimant never got any treatment for the knee other than that provided by the doctor, the nurse and the elastic bandage. He said he was “reasonably sure” the injury occurred in March 1960.

In the cross-examination of claimant he said the accident happened on a Friday and that he did not see the nurse until the following Monday. Also, in his cross-examination he testified that he saw the company doctor in May 1961 for another injury at which time he told the doctor that his knee would swell. He said the doctor told him if it continues to swell, to come back and he would have to lance it again. On the occasion of this visit the doctor did nothing to the knee. He said he only saw the doctor one time for the knee.

In May 1961 when claimant saw the nurse about another injury, she told claimant to continue to wear the elastic bandage. It was developed on cross-examination that the bandage he was wearing at the time of the hearing was a new elastic bandage that had been purchased by his wife in December of 1962.

The employer’s nurse did not remember claimant coming into the dispensary for an injury to his left knee, nor did she remember ever giving him an Ace elastic bandage to put on his knee. The nurse testified she kept the records of the dispensary and that she had no record of any treatment or injury to claimant’s left knee.

Dr. Leo F. Donley, who was the plant physician for the employer, testified that if the employee is seen by the nurse of the employer before he is sent to his office, the nurse would enter a record of this in a book kept at the dispensary office. He had no recollection of having treated the claimant in his office. However, he said it was possible that he had aspirated the knee of the claimant, but he did not remember it. He said he did not keep any records in his office of treatment to the employees, stating these records were kept in the dispensary of the employer. He said an elastic bandage of the type used by claimant would lose its elasticity in a period of two to three months if it was used two or three days a week.

The Industrial Commission made the following finding denying compensation:

“We find from all of the evidence that the claim for compensation was not filed within one year from the date of the accident, nor within one year from the last payment of compensation (none having been paid), nor within one year from the last medical treatment rendered the employee and furnished by the employer and insurer.
“While not unmindful of the dicta of Myers v. Cap Sheaf Bread Co. [354 Mo. 943], 192 S.W.2d [503] 509, we are of the opinion that the furnishment of an Ace Elastic bandage by the company nurse and the more or less continuous use thereof by the employee was not medical treatment of such nature as would toll the running of the Statute of Limitations.
“We conclude, therefore, that the claim is barred by Section 287.430, RSMo 1959, and compensation must be and the same is hereby denied.”

It is not clear from a reading of the aforesaid finding and award of the Industrial Commission whether or not it found that the employee was furnished an Ace elastic bandage by the company nurse and that the employee more or less continued to use it. However, it becomes immaterial as to what finding the Industrial Commission made in this regard, as we shall demonstrate.

Section 287.140 RSMo 1959, V.A. M.S., provides that the “employee shall receive and the employer shall provide such medical, surgical and hospital treatment, including nursing, * * * as may reasonably be required * * *, to cure and relieve from the effects of the injury, * If the employer provides any medical treatment or aid, the rendition of such medical aid constitutes as to the injured person a payment on account of the injury. The bare rendition of such service at the instance of the employer is in and of itself a payment on account of the injury so far as the injured person is concerned. McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, l. c. 1070; Thomas v. Baker-Lockwood Mfg. Co., 236 Mo.App. 1248, 163 S.W.2d 117.

The first question to be decided is whether the furnishing of the Ace elastic bandage for the knee constituted rendition of medical service? Our answer to this is that we think it did. Where a back brace prescribed by a doctor furnished by the employer was prescribed for use by a claimant, it was held in Myers v. Cap Sheaf Bread Co., 354 Mo. 943, 192 S.W.2d 503, that it constituted the furnishing of medical aid. We think the furnishing of the elastic bandage by the employer’s nurse constituted providing medical aid to relieve from the effects of the injury, within the meaning of the statute.

It is clear from a glance at the evidence heretofore summarized that plaintiff’s claim was not filed within one year from the date on which the Ace elastic bandage was furnished by the company nurse to the claimant, and, therefore, his claim was not filed within one year from the last medical aid rendered the employee and furnished by the employer, unless, as claimant contends, the continued use by him of the elastic bandage from March 1960, until December 1962, at which time he secured a second bandage, constitutes treatment or aid for his injury under the statute and is of such nature as to toll the running of the statute of limitations, namely, § 287.430 RSMo 1959, V.A.M.S. This statute provides that no proceedings for compensation shall be maintained unless a claim therefor be filed with the Commission within one year from the date of the last payment made on account of the injury. In essence, claimant contends that the last payment was made in December of 1962, when he ceased using the Ace elastic bandage furnished by his employer.

Claimant cites the case of Myers v. Cap Sheaf Bread Co., supra, in support of his position. In that case the Circuit Court had affirmed an award of the Workmen’s Compensation Commission denying compensation to the claimant on the ground that his claim was barred by the statute of limitations. The opinion shows that a contract, referred to as a temporary agreement, was filed with the Commission. The claimant contended that the filing of the temporary agreement was in fact, the filing of a claim for compensation, and since the Commission made no order approving or disapproving the temporary agreement, the case was still pending undisposed of at the time he made his claim for additional compensation. The court also found that there was evidence that Myers was advised by a doctor to wear a brace furnished for the protection of his back. The court pointed out that claimant had worn the brace from February to October 1941, and since that time, occasionally, when needed. The court also found that on October 9, 1941, the insurer sent claimant to Dr. Hampton for an examination. Claimant in the instant case relies on the following language of Judge Westhues, then a Commissioner, wherein he said at 192 S.W.2d l. c. 504:

* * * It is in evidence, however, that Myers was being treated by doctors selected by the insurer and employer. The brace that Myers wore all through the year 1941, was prescribed by the doctors furnished by the defendants. It will be noted that in October, 1941, defendants sent Myers to doctors and x-rays were taken. That was, within the law, furnishing medical aid and constituted payment within the meaning of sec. 3701, R.S.Mo., 1939, Mo.R.S.A., so as to toll the statute of limitations.”

By this language the Supreme Court did not hold that the mere wearing of the brace all through the year 1941 in and of itself was sufficient to toll the statute of limitations.

This opinion reversed the trial court on two grounds, namely, that the examination of claimant on October 9, 1941, was furnishing medical treatment so as to constitute a payment under the statute. Therefore, the claim was not barred by the statute of limitations. The second ground given was that there was a case pending before the Commission which had never been determined either by an agreement or by a hearing. That these were the only grounds becomes abundantly clear in the concurring opinion written by Judge Hyde for the court en banc. Judge Hyde refers to the two grounds for reversal contained in the opinion of Westhues, C. In his opinion he re-j ects the first ground because the examination of claimant on October 9, 1941, was only for the purpose of making a report to the insurance company and it could not be construed as furnishing medical treatment so as to constitute a payment under the statute. Judge Hyde puts his concurrence upon the second ground. The separate opinion of Judge Hyde was concurred in by all of the Judges sitting in the case. Neither opinion supports the contention of claimant in the instant case, that the mere wearing of the Ace elastic bandage until December 1962 tolled the statute of limitations while wearing the bandage.

To rule otherwise would be the opening of a Pandora’s box that would lead to many absurdities and abuses. The use of a cane or crutches furnished by the employer or insurer could be extended needlessly and indefinitely by claimant. Many other examples of abuse could be given. The plain purpose of § 287.430, supra, viz., to prevent claims from lying unfiled indefinitely and from becoming stale, Wheeler v. Mo. Pac. R. Co., 328 Mo. 888, 42 S.W.2d 579, l. c. 581; 53 C.J.S. Limitations of Actions § 1, p. 903, would be circumvented if we were to allow plaintiff’s contention.

The last medical service received by claimant was on the day in March 1960 when he was provided with the elastic bandage by the employer’s nurse. That was the last medical aid provided by the employer and constituted the last payment on account of claimant’s injury. The aforesaid day in March was the day the limitation period began to run. This was more than two years before the claim was filed. Therefore, it is clear that the claim for compensation was not filed in time and was barred by the statute of limitations.

The judgment of the Circuit Court should be affirmed. It is so ordered.

WOLFE, P. J., and J. MORGAN DON-ELSON, Special Judge, concur.