author: HOLLINGSWORTH, Judge.

text:
    Jack L. CLAY, Superintendent, Division of Insurance, Department of Business and Administration of the State of Missouri, Respondent, v. EAGLE RECIPROCAL EXCHANGE and Missouri Managerial Corporation. In the Matter of Ralph B. HUTCHINGS and John E. Bell, d/b/a Bell-Hutchings Insurance Agency, Appellants.
    No. 49392.
    Supreme Court of Missouri. Division No. 1.
    May 13, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 4, 1963.

      Goldenhersh, Goldenhersh, Fredericks, Newman & Lane and Samuel J. Golden-hersh and Frank J. Lane, Jr., St. Louis, for appellants.
    Charles H. Howard, Jefferson City, for plaintiff-respondent.
   HOLLINGSWORTH, Judge.

On May 5, 1958, the Circuit Court of Cole County found Eagle Reciprocal Exchange, hereinafter called “Eagle”, insolvent, adjudged that it be dissolved and that its affairs be liquidated in accordance with the provisions of Chapter 375, RSMo 1959, V.A.M.S. As a part of that decree and in accordance with said chapter, C. Lawrence Leggett, the then Superintendent of the Division of Insurance of the State of Missouri, became vested with title in fee to all of Eagle’s assets and charged with the duty of acquiring possession of and disposing of them for the use and benefit of Eagle’s creditors, policyholders and such other persons having a lawful interest therein, as in said chapter provided. Said superintendent for a time was and his successor in office, Jack L. Clay (thereafter duly substituted as plaintiff), now is the qualified and acting receiver of Eagle; and the Circuit Court of Cole County continues to retain jurisdiction of said cause, to the end that its aforesaid judgment may in all things be enforced within the intent and pertinent provisions of Chapter 375.

Pursuant to the powers vested in him, the receiver, on August 15, 1960, filed a verified motion in said cause, directed against Ralph B. Hutchings and John E. Bell, doing business as Bell-Hutchings Insurance Agency, and who, from January 2, 1958, to May 1, 1958, had engaged in soliciting applications for, collecting premiums on and delivering policies of insurance issued by Eagle, to show cause why judgment should not be rendered against them as in said motion sought.

Count one of the motion alleged that Hutchings and Bell, as such agents, hereinafter referred to as “defendants”, had collected and retained premiums in the sum of $4,311.04, which defendants held as trustees for Eagle in a fiduciary capacity and which defendants, after demand, wrongfully had failed and refused to deliver over to receiver, contrary to the provisions of Chapter 375 and certain orders and judgments of the court; and, in the alternative, receiver alleged in count one of said motion that defendants were obligated to pay over to Eagle any and all such premiums even though they or some of them had not been collected; and that defendants were therefore indebted to receiver in the aforesaid sum of $4,311.04, for which sum receiver sought judgment, together with interest from June 16, 1958, and attorney’s fees in the sum of $1,500.00.

Count two of the motion alleged that all outstanding Eagle policies had been can-celled by order of the circuit court on May 5, 1958, but that defendants continued to' withhold and retain unearned commissions as though said policies remained outstanding; and that, under the terms of defendants’ agency agreement with Eagle, defendants were lawfully entitled to retain only the commissions due on premiums earned on such policies up to the date of cancellation by order of the circuit court; and that said unearned commissions amounted to $3,415.86, which constituted trust funds in defendants’ hands, and for which defendants were required by law to account and pay over to receiver.

The court sustained the verified motion to show cause why judgment should not be rendered against defendants as prayed therein. Defendants’ answer to that order denied the merits of the claims asserted by receiver and affirmatively pleaded that defendants had theretofore “entered into a settlement agreement at the suggestion of and with the approval of [receiver] and his attorney whereby defendants did pay [the sum of $1,159.98] in full and complete settlement of any amount due or to become due from defendants to [receiver]." Defendants then further pleaded: (a) that in reliance upon said agreement they abandoned all efforts to collect from their subagents and that receiver agreed to assume the losses sustained; (b) that having heard nothing for more than one year from the time of the settlement agreement, defendants, in due course, destroyed all records pertaining to the matter instantly involved; (c) that it was now impossible to prepare a defense to the matters instantly involved due to the destruction of their records in reliance upon the aforementioned settlement agreement, and that it would be grossly inequitable to permit receiver to maintain this action more than two years after settlement of the matter; (d) that receiver had forfeited any right to recover by reaching a settlement with defendants two years ago; and (e) that receiver’s tardiness rendered him guilty of laches. In connection with the defenses thus made, defendants paid into the registry of the court the aforesaid sum of $1,159.98.

Trial to the court of the issues presented' by the motion to show cause and defendants’ answer resulted in a judgment for receiver: on count one of the motion in the sum of $4,311.04 with interest thereon from June 16, 1958, in the sum of $879.45; on count two in the sum of $3,404.14; total on both counts, $8,594.63, for which execution was-ordered to issue at request of receiver. The decree further ordered and adjudged that if the execution be not satisfied within-30 days after issue, defendants would be guilty of contempt, for which citation would issue upon due application. (Receiver admits that the judgment rendered on count one should be credited with the sum of $1,-159.98, paid into the court registry in accordance with the tender made by defendants.)

Defendants appealed. Jurisdiction of the appeal lies in this court because the plaintiff receiver herein is a state officer. Article V, § 3, Constitution of Missouri, V.A.M.S.; Leggett v. General Indemnity Exchange, 363 Mo. 273, 250 S.W.2d 710, 711.

At commencement of the trial, it was, stipulated: (a) that defendants had caused Eagle policies to be issued for which defendants were charged on Eagle’s books with unpaid premiums in the sum of $4,858.-32, subject to a credit of $547.28, leaving a balance of unpaid premiums, as shown by Eagle’s records, in the sum of $4,311.04;, (b) that defendants, by letter mailed to receiver on June 25, 1958, in which they enclosed a purported “list” of the amount owed by them to Eagle on the date Eagle was adjudged insolvent, advised receiver that their total indebtedness to receiver was $1,159.98, for which amount they, in said letter, enclosed checks, dated June 25, 1958, which receiver retained but did not present for payment; and (c) that Eagle’s records also correctly showed the amount of unearned commissions owed Eagle by defendants to be $3,328.66, as alleged to be due and payable to receiver under count two of the motion.

The contract under which defendants conducted business as agents of Eagle, in material part, reads:

“IT IS HEREBY AGREED between the Company (Eagle) and the Agent (defendants) as follows:
“(1) Agent has full power and authority to receive and accept proposals for insurance covering such classes of risks as the Company may, from time to time authorize to be insured; to collect, receive and receipt for premiums on insurance tendered by the Agent to and accepted by the Company and to retain out of premiums so collected, as full compensation on business so placed with the Company, the following commissions:
Automobile Bodily Injury Co 30%
Automobile Property Damage 30%
“(2) In the event of termination of this agreement, the Agent having promptly accounted for and paid over premiums for which he may be liable, the Agent’s records, use and control of expiriations (sic) shall remain the property of the Agent and be left in his undisputed possession; otherwise the records, use and control of expirations shall be vested in the Company.
“(3) It is a condition of this Agreement that the Agent shall refund ratably to the Company, on business heretofore or hereafter written, commissions on cancelled liability and on reductions in premiums at the same rate at which such commissions were originally retained.
******
“(6) Accounts of money due the Company on the business placed by the Agent with the Company are to be rendered monthly by the Company; the balance therein shown to be due to the Company shall be paid not later than 30 days after the end of the month for which the account is rendered.”

There seems to be no question that notice of the receivership came to defendants by mail about May 1, 1958. It advised defendants that the Superintendent of Insurance had issued a cease and desist order against Eagle and that defendants’ license to represent Eagle was simultaneously cancelled. Defendants were also advised about May 5, 1958, that the Circuit Court of Cole County had entered its order permanently enjoining Eagle from engaging in any further insurance activity. On or about May 13, 1958, defendants received a directive entitled “Guidance for Handling Collections of Agents’ Balances of Eagle Reciprocal Exchange.” That document, to the extent material, gave notice to Eagle agents that after May 1, 1958, agents: (a) “had [no] authority to transact any business, issue any policies, write any business, or perform any other act of any kind or nature for or on behalf of Eagle * * (b) “are hereby authorized and directed to accept all payments on premium notes for earned premiums up to May 5, 1958, but you are instructed and directed to immediately transmit the same to the Receiver. You have no authority to accept payment for unearned premiums”; (c) “will be held responsible for all monies collected for or on behalf of Eagle * * *, and this is true even though such monies may be earned or unearned premiums”; (d) “are directed to immediately transmit to the Receiver, a statement of the amount or amounts of money collected by you for or on behalf of Eagle * * * and the amount due by you to [Eagle].”

On June 16, 1958, Mr. Charles Howard, attorney for receiver, wrote defendants requesting an accounting for monies collected and owed by defendants to the company, in reply to which defendants, in the aforesaid letter of June 25, 1958, forwarded an alleged accounting, accompanied by their checks for $1,159.98. That letter stated:

“In accordance with your letter of June 16, we are attaching hereto a list of our account with Eagle Reciprocal Exchange as of April 30, 1958, according to our records.
“Sheet .#1 indicates the charges on various policies which we have collected. Sheet #2 are the credits due us by Eagle.
“Therefore, subtracting the credits from the charges leaves us owing Eagle, according to our records, a balance of $1159.98 and we are attaching our checks in this amount.
“To the best of our knowledge and belief, this is a true and accurate account.”

On October 14, 1958, defendants were advised by Mr. Howard that an audit of Eagle’s records showed defendants owed Eagle $4,311.04 instead of the $1,159.98, for which amount defendants had sent receiver their checks. In that letter, Mr. Howard also suggested that the parties meet in Jefferson City to discuss their differences. On or about November 20, 1958, defendants, in compliance with that request, conferred with Mr. Howard in Jefferson City, at which time defendants left with Mr. Howard the statement and checks theretofore sent to him. Defendants heard nothing further about any indebtedness owing to the Superintendent of Insurance on account of the Eagle matter until the filing of this proceeding.

Mr. Hutchings testified: The books and records from which' defendants furnished Mr. Howard with the amount defendants claimed they owed on this account were no longer left “in one little pool.” They were intermingled with other files. These books and records possibly could be made available after a lot of “rooting” but defendants knew of no reason to keep them segregated because they believed, after their conference with Mr. Howard, that the contention existing between defendants and the receiver was “water under the dam”, it being defendants’ opinion that their affairs with Eagle were fully resolved and that they were under no further responsibility in the matter. He further testified that when he and Mr. Bell met with Mr. Howard in Jefferson City there was no reference made to defendants’ owing the receiver any sum for unearned commissions, payment of which was demanded in the second count of the motion to show cause; and that had defendants known that they would thereafter be confronted with a claim for unearned commissions, they would have kept their records intact.

On cross-examination, Mr. Hutchings testified: Defendants did business with their clients on an open account basis, the clients usually paying them on a 30 or 45 day basis. On some accounts, defendants would take a small down payment from the purchaser of a policy and carry the balance of the account themselves; they tried to get whatever they could at the time of issuance of a policy.

On further cross-examination, Mr. Hutch-ings testified that under defendants’ agreement with Eagle, Eagle sent defendants a bill each month for the business produced during the preceding month. That bill was due 30 days after defendants received the statement; in other words, May’s business would be due no later than July 31, which, he said, is standard insurance practice. He expressly admitted: “We were required to pay at the end of sixty days * * *. [W]e would get our accounting between the 25th of June and first of July. Then we were obligated to pay the 31st of July”; and further:

“Q (by Mr. Howard) This business that you carried, you were carrying at your own risk, weren’t you — this credit business ?
“A With the understanding that we could cancel them flat up to thirty days, and on the second thirty days would be on us.
******
“Q You say in the first thirty days there was a flat cancellation?
“A That is right. You won’t find it covered in the agency contract. That was an oral agreement.
******
“Q Where you issued a policy to an insured and he hadn’t paid you in a thirty-day period, you regarded yourself as being obligated to the company, whether your insured ever paid you or not?
“A No, we never did regard ourselves as taking over our insureds’ obligations to pay this bill. However, we was obligated to make the payment for him to the insurance company, and then cancel his policy and withdraw the money we had paid to the insurance company.
“Q Then you say there was an extra custom which was not in your agency contract, covering the thirty-day period?
“A That’s correct.”

Mr. Hutchings also testified that it was defendants’ practice to refund ratably to Eagle unearned commissions on cancelled policies computed at the same rate at which the commissions were originally retained.

On further cross-examination, Mr. Hutchings also testified: At the conference with Mr. Howard in Jefferson City in November, 1958, Mr. Howard and defendants had argued about the amount defendants owed the receiver. It was defendants’ contention that they had not collected the premiums to the extent claimed by the receiver on policies written by defendants for Eagle, but he admitted that defendants never produced any of their original books of account; and they had only furnished the receiver with a “summary” thereof. At that conference, Mr. Howard stated that he would take defendants’ figures, check them out with the receiver’s auditor and determine whose figures were right. Mr. Hutchings refused to say that Mr. Howard had not told defendants at that conference that the matter had to be held until a later date for determination. He did admit, however, that he at all times knew that the checks left with Mr. Howard had never been negotiated, saying: “Being frank with you, we had hoped you lost them, being honest about it. That is what we thought, you probably lost them and forgot about them.”

On further cross-examination, Mr. Hutchings testified: Whenever defendants sent a bill to an insured, they sent the original along with the policy to the purchaser; a copy was placed in defendants’ “account receivable” file; a copy was placed in defendants’ “account payable” file; and a fourth copy was placed in defendants’ “expiration” file. When Eagle went into receivership, the files with reference thereto were “all pulled out and put into one group, one folder, and from this the accounts receivable file, the accounts payable files and the expiration files were pulled out, and the whole * * * put together.” He said he did not know where those files are today.

Defendant John E. Bell was present at the trial but was not called as a witness in behalf of defendants and did not testify.

Mr. Howard testified in rebuttal: The audit of Eagle’s books of defendants’ account (copies of which were admitted in evidence) showed defendants owed $4,311.04 on their account current. Defendants had paid into the court registry $1,159.98, leaving a balance on their current account in the sum of $3,151.06. At the November, 1958, conference defendants admitted that the figures shown them by the receiver were correct; they merely took the position that they did not owe $3,151.06 on their current unpaid premium account for the reason that that sum included premiums they had not collected. Mr. Howard further testified that he told defendants that the conference gave rise to two problems: (1) whether defendants should be credited with premiums which they contended they had not collected, and (2) whether defendants should be given any credit for the “30-day cancellation rule which seems to prevail in the industry.” At no time did he make any representations to either defendant that the checks for $1,159.98 would settle their account with the receiver. He simply advised them that he could not answer their contentions at that conference; that the receiver should be given some proof other than what defendants had “said” and the summary allegedly made from their records; and that until these questions were decided in this receivership or in some other receivership case, “we would just have to let the matter ride along until we could obtain an answer.”

Defendants’ first “point” is thus stated: “The trial court grossly abused its discretion in designating [defendants] trustees of a fund which never existed, by ignoring the true issue in this case and making a convenient finding of fact that [defendants] had collected the funds.” In support of that contention defendants cite: Mueller v. Larison, Mo., 355 S.W.2d 5; Doak-Riddle-Hamilton Co. v. Raabe, 63 Ind.App. 250, 114 N.E. 415; Fitzburgh v. Everingham, (N.Y.1836) 6 Paige 29; Monitor Mutual Fire Insurance Co. v. Young, (1873) 111 Mass. 537; Trice v. Lancaster, Mo.App., 270 S.W.2d 519, 526; Clay, Superintendent, etc. v. Independence Mutual Ins. Co., Mo., 359 S.W.2d 679; Langdeau v. Bouknight, (1961) 162 Tex. 42, 344 S.W.2d 435; and Jefferson Fire Ins. Co. v. Bierce & Sage, (C.C.Mich., 1910) 183 F. 588. The judgment stated that “the defendants * * * were insurance agents doing business in the State of Missouri prior to May 1, 1958, and were duly licensed as such by the State of Missouri, and that they were agents of Eagle Reciprocal Exchange, and that they had entered into a written contract with Eagle Reciprocal Exchange, and as such agents they were trustees for and fiduciaries of Eagle Reciprocal Exchange and had collected the monies claimed under Counts I and II, and that said monies were held in trust and fiduciary capacity for the use and benefit of Eagle Reciprocal Exchange, and that said monies and funds are the property of the Plaintiff-Receiver, and that said defendants have knowingly and intentionally retained said trust and fiduciary funds and monies, and have converted the same to their own use, contrary to and in violation of the Orders and Decrees of this Court of May 1 and 5, 1958; and the Court further finds that said defendants refused, and are now refusing, to deliver said monies and funds to the Plaintiff-Receiver herein, contrary to the Orders of this Court.” With the exception of the cases of Clay, Superintendent, etc. v. Independence Mutual Ins. Co., which is a 1962 Missouri case, and Langdeau v. Bouknight, which is a 1961 Texas case, none of the cases above cited shed any light whatever upon the issues as pleaded in the instant case. The two cases above noted will be hereinafter discussed in connection with those issues.

The matters here in issue are in part, at least, equitable in nature. But, be the case one of law or equity, the cause was tried to the court and it is the duty of this court on appeal of a court-tried case to review it upon both the law and the evidence as a suit of an equitable nature. S.Ct. Rule 73.01, V.A.M.R. In so doing we review the record de novo, consider the credibility, weight and value of the evidence, determine the facts as we find them to be, deferring to the findings of the trial court to the extent proper, giving heed to his more favorable position to evaluate and judge the credibility of the witnesses, and render judgment in accordance with our conclusions thus reached. Euge v. Blase, Mo., 339 S.W.2d 807, 810; Cox v. Bryant, Mo., 347 S.W.2d 861, 863; Mueller v. Larison, Mo., 355 S.W.2d 5, 8.

As we read this record, no extended discussion of the evidence pertaining to the two basic elements upon which the ultimate disposition of this case must rest is necessary. Defendants admit that when first advised that an accounting was sought by the receiver they had in their custody and readily available for production the books, records and accounts necessary to the making of such an accounting. It is also clear that at the conference held between defendants and counsel for receiver in November, 1958, defendants learned that Eagle’s books showed defendants to have been indebted to Eagle when placed in receivership for unpaid premiums in the sum of $4,311.04. During that conference, defendants asserted that they owed a lesser sum, yet they did not then or thereafter submit their books of account or even present or produce the “one little pool” of records they had collected, upon which they assertedly had made the calculations resulting in the tendered checks amounting to $1,159.98. In this connection, however, it seems to be conceded that defendants were not advised at that conference that Mr. Howard would thereafter demand from defendants an accounting for and payment of unearned commissions retained by defendants on premiums which would never become earned because of the cancellation of all outstanding Eagle policies as of the date Eagle was placed in receivership. Indeed, there seems to be only two things of which we may be certain to have resulted from that conference: One is that Mr. Howard admittedly was uncertain as to whether defendants were liable to account for and pay over to the receiver premiums not theretofore remitted, irrespective of whether defendants had actually collected them, or unearned commissions retained by defendants; the other is that defendants knew, or as ordinarily prudent persons should have known, they would be required to account to the receiver or to the court for some amount at some time. Yet, despite the knowledge with which defendants obviously were charged, they, as Mr. Hutchings testified, deliberately so intermingled the records theretofore assembled with other files as to make it most difficult to effect an accurate accounting; and, although Mr. Hutchings admitted that their books and other records possibly could be made available after a lot of “rooting”, they made no gesture of willingness to do so, for the reason, as Mr. Hutchings testified, they “believed” the matter was “water under the dam.”

These unadorned facts force the conclusion that the contention that defendants and the receiver “entered into a settlement agreement” is without merit; and, it follows, as a matter of course, that all of the allegedly calamitous results that flowed from that alleged (and unsubstantiated) “settlement”, as set forth in defendants’ other pleaded contentions, are, perforce the false premise upon which they are predicated, without merit.

It has long been the public policy of this state that the insurance business so affects the public interest as to require its regulation by the state and to hold all who engage therein to strict account. State ex rel. Missouri State Life Ins. Co. v. Hall, 330 Mo. 1107, 52 S.W.2d 174, 177; Trice v. Lancaster, Mo.App., 270 S.W.2d 519, 525; State ex rel. Johnson, Adm’rx v. Leggett, Superintendent, etc., Mo., 359 S.W.2d 790, 793-794, and the cases therein cited. Section 375.290, subd. 1 declares that any person who, as agent of an insurance company, receives or collects money on any account whatsoever for any insurance company doing business in this state shall be responsible in a trust or fiduciary capacity for any money so collected or received by him for such company; and § 375.290, subd. 2 provides severe criminal penalties for willful violations of § 375.290, subd. 1. The rule in Missouri and throughout most, if not all, of the states of this union is and for many years has been generally stated as is well expressed in Appleman’s “Insurance Law and Practice”, Vol. 16, § 8785, p. 223: “The mere existence of a fiduciary relationship between an insurance company and its agents entitles it to an accounting on demand, and it is not necessary for such company to show that anything would be found due from the agent.” It is also clear that the statutory duty to account for monies actually collected or received (as declared in § 375.290) does not limit the civil liability of an insurance agent to account to the insurer, and especially to the receiver of an insolvent insurer, not only for monies that he has collected but also for monies that he, under his contract of employment, should have collected. 44 C.J.S. Insurance § 157, pp. 831-832. “In fact, even without such a special statutory provision as exists in Missouri, the law generally has recognized an insurance agent, charged with the duty of collecting premiums and not granted the right by his contract to use the funds personally, as having prima facie a fiduciary responsibility.” Twin City Fire Ins. Co. v. Green, 8 Cir. (1949), 176 F.2d 532, 535 [2].

In the very recent case of Clay, Superintendent, Division of Insurance v. Independence Mutual Ins. Co., Mo., 359 S.W.2d 679, the liability of an agent for both uncollected premiums and unearned commissions was thus stated, 359 S.W.2d loc. cit. 683: “The first issue raised on this appeal is whether the receiver is entitled to recover from the'insurance agency unearned premiums shown by the monthly reports to be owing but not remitted to the insurance company, on the 56 cancelled policies. By contract Time was obligated to pay Independence the balance shown on monthly reports. Both by contract and by statute a trust or fiduciary relationship existed between Time and Independence as to all premiums received by Time on business of Independence. As a trustee it was Time’s duty, without alternative or option, to pay the balances shown at the specified times.” And, 359 S.W.2d loc. cit. 684: “The second question is whether the receiver is entitled to recover from Time commissions on premiums unearned because of the June 2 court order cancelling all Independence policies. By a plain and unambiguous provision of the agency agreement it was the obligation of Time to ratably refund commissions on cancelled policies. When the receiver was appointed and all policies of Independence were can-celled by the Circuit Court of Cole County Time was duty bound under its contract to ratably refund to the receiver the commissions it had retained on all policies of Independence it had written but for which it had not previously accounted to Independence.”

In Langdeau v. Bouknight, (1961) 162 Tex. 42, 344 S.W.2d 435, 440, the court, quoting with approval from an earlier Texas case, Wheeler v. Clark, Tex.Civ.App., 306 S.W.2d 158, said: * * The truth is that when the Receiver was appointed and all policies cancelled by the Travis County District Court, an indebtedness then and there was created in favor of the policyholders and against the Receiver for the amount of unearned premiums and it was the duty of the Receiver to pay to such policyholders, on a pro rata basis, these unearned premiums, and at the same time Clark became indebted to the Receiver for the total sum of unearned commissions on the policies he had theretofore written.’ ” See also Daniels-Greager v. Caledonian Ins. Co., 103 Colo. 323, 86 P.2d 264; Atkins v. Williamson, C.C.A. Texas (1959), 320 S.W.2d 425; Holz, Superintendent, etc. v. M. L. Nathanson & Co., Inc., 5 Misc.2d 266, 159 N.Y.S.2d 785; Bohlinger, Superintendent, etc. v. Ward & Company, 20 N.J. 331, 120 A.2d 1.

Prolonged discussion of or further quotation from the above cases is unnecessary. They establish the principle that an agent chargeable with funds due an insolvent insurer may not be preferred to the detriment of policyholders or other creditors by reason of any custom or practice violative of the contract defining the agent’s duties to collect and to account for funds due the insurer.

As hereinabove shown, defendants’ contract with' Eagle provided (a) that defendants refund ratably to Eagle, on business theretofore or thereafter written, commissions on cancelled liability at the same rate at which such commissions were originally retained; and (b) that Eagle would each month render an account of the business placed by defendants and that the balance shown to be due Eagle should be paid not later than 30 days after the end of the month for which the account is rendered. Defendants, without legal cause or excuse, refused to account to the receiver as required by lawful order of the trial court and there is nothing in the record tending to show that Eagle’s records did not truly reflect the amounts of premiums for which defendants had not remitted to Eagle and the amount of unearned commissions which defendants had retained.

Subject to being credited with the sum of $1,159.98, paid into the court registry by defendants, the judgment of the trial court against defendants for those amounts, with interest thereon as awarded, should be and is affirmed. We are not convinced, however, that mere failure of satisfaction of the judgment on execution, in and of itself, should subject defendants to citation for contempt and the judgment to that extent should be and is reversed.

All concur.

      . All statutory references herein are to said revision.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Edwin Malcolm MILLER, Appellant.
    No. 49546.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.
    Opinion Modified on Court’s Own Motion June 4, 1963.
    Motion for Rebearing or for Transfer to Court En Banc Denied June 4, 1963.

      John D. Schneider, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, William L. Hungate, Special Asst. Atty. Gen., Troy, for respondent.
   HOUSER, Commissioner.

Under §§ 560.070 and 556.150, V.A.M.S., Edwin Malcolm Miller was charged with and convicted of attempted burglary second degree, and three previous convictions of felony. The court fixed his punishment at five years’ imprisonment in the penitentiary. Defendant has appealed from the sentence and judgment.

The information charged defendant with attempted burglary of Dairy Dell Ice Cream Store in St. Louis by wedging a chisel and punch in the door.

The evidence most favorable to the state shows the following: Patrolman George Keck, driving his patrol car on north Broadway at 3 o’clock in the morning, was checking buildings. He drove into the parking lot adjacent to the ice cream store, and as his front wheels were a little over the sidewalk he noticed a man (the defendant) squatted down, or crouched, facing the front door of the store, under the front canopy. The patrolman first saw his back. When the car entered the lot the man turned around and faced the patrolman and started raising up to a standing position, right by the front door of the store • . . 2 or 3 feet from the door. Keck stopped the patrol car, opened the door, got out, and asked the man what he was doing there. The man started pulling up his trousers, saying “This insulated underwear causes your trousers to fall all the time,” and that he was waiting for a bus. (There was no bus stop in front of the store; it was “down the street further.”) The man was unable to produce any identification. He gave the officer one name, then a different name and finally admitted his true name. Asked about the truck parked in the lot adjacent to the store, the man first said a friend of his drove him to the place, then admitted he was the driver of the truck. The officer arrested the man and radioed for his supervisor, Sergeant Beckman, who arrived in a few minutes. While Beckman watched defendant, Keck checked the building to see if it had been entered or any attempt had been made to do so. There was no evidence of any entry or attempt to enter at the back or sides of the building. At the front door he found a metal chisel and a punch wedged under the framework of the front door, between the sill and the bottom of the door— “stuffed under the door” ⅜ of ½ inch — far enough to cause the tools “to stand straight out, and the end[s] not laying on the ground.” The door, of modern design, was all glass, with a thick aluminum frame. There was a lock located at the bottom of the door. A bolt goes down into the sill. To open the door without a key it would be necessary to chisel the lock completely off. The man was searched and the officers found in his pockets a screw driver with a 6-inch blade, a 2-blade knife, a shoehorn and a 6-inch spring steel ruler. In the cab of the truck there was a box, lying open, containing assorted tools, and in the back part of the truck a crowbar was found. The owner of the store, Robert Hutter, and a photographer, were called to the scene. At the trial defendant took the stand, admitted seven pleas of guilty, including two charges of burglary and larceny, and one jury conviction of first degree robbery by means of a dangerous and deadly weapon. With a touch of professional pride defendant testified “I am a burglar, but I’m not insane”; that if he was going to break in a place he would “go with a crowbar, any place except the front door”; that he was not intending to burglarize this store.

Defendant’s first point is error in denying defendant’s request to require state’s witness Keck “to produce his handwritten notes from which he testified to alter a prior inconsistent statement.” The background : The state’s case was based on the theory that the tools were wedged in the door, which would show that someone (circumstantially this defendant) had committed an overt act looking toward the commission of the offense, and had not simply collected tools at the site in preparation for the commission of an overt act in furtherance of a design to break and enter. State’s Exhibit 1, a photograph taken at the scene of the arrest, did not show the tools wedged in the door. It showed them lying on the walk directly in front of the door, but not touching the door — not wedged in between the doorsill and the bottom of the door. If that was the situation and position of the tools at the time Keck first saw them, the state could not make a case on the theory it adopted. When Hutter appeared at the scene he looked at the front door from the outside, then went into the building through another entrance, unlocked the front door from the inside, and swung it open. The door opened outward and it swung freely. If the tools had been wedged in the door at the time the door was opened, they necessarily would have been dislodged and displaced from their wedged position, and they would have been cast out and away from contact with the door. Exhibit 1 showing clearly the tools not “wedged” as aforesaid, it became important to know whether the photographs were taken before or after the door was unlocked and opened.

At the trial Keck testified that the chisel and punch were wedged under the framework of the door when he first examined the door; that Exhibit 1 truly represented the door as it appeared when he examined it, except it did not show the tools under the door; that the tools were “a little away from the door” when the picture was taken; that he removed the tools before the photographer took the picture; that the picture was taken after the door had been opened; that “they” disturbed the tools at the base of the door before the photograph was taken. On cross-examination Keck admitted that seven days prior to trial he gave a statement to defendant’s counsel, in the presence of the assistant circuit attorney, reduced to writing but not signed, in which Keck stated that “The door had not been opened when the photographer took the pictures.”

Keck’s admission on cross-examination; Exhibit 1, and certain testimony by state’s witness Hutter provided defendant with his “primary defense.” Hutter testified that after being called to the premises at 3:30 a. m., and before entering the store (and therefore before he opened the door from the inside) he saw the chisel and punch lying an eighth of an inch from the door, “right up to the bottom of the door ready to be wedged under there,” but not wedged tmder the door.

When counsel for defendant called on patrolman Keck to explain why he had made the pre-trial statement that the door had not been opened at the time the photograph was taken, Keck’s explanation was that he was “just mistaken”; that at the time the pre-trial statement was made he didn’t remember “without refreshing [his] memory a little bit and looking at [his] notes.” Keck said he had made some notes, kept at home in handwritten form. (Keck had told counsel for defendant, at the time he made the pre-trial statement, that he would refer to his report; that he did not have an independent recollection of all the facts.) At the trial Keck testified that he remembered it better than he did the day he gave the pre-trial statement, because, as he put it, “I checked my notes at home that I keep for my own.” He did not have the notes with him at the trial. “Q. Where are they ? A. At home. They are my property. Q. I see. Yet you are testifying from what those notes say. Is that right? A. That’s right. Q. You don’t remember what happened yourself? A. Sure, I remember what happened. I wrote the stuff down. I can remember it after I refresh my memory.” He indicated that he was mistaken at the time he made the pre-trial statement because he had not had a chance to read his report. Counsel for defendant moved that this report be produced for cross-examination. Counsel stated to the court that if, as Keck stated, Keck did not have an independent recollection of all the facts and had to refer to the report, defendant’s counsel had a right to examine the report. No request was made for the issuance of a subpoena duces tecum. The court refused the request.

Defendant claims the right to the production and examination of the handwritten notes on the basis of Traber v. Hicks, 131 Mo. 180, 32 S.W. 1145; State v Patton, 255 Mo. 245, 164 S.W. 223; State v. Nardini, Mo.App., 186 S.W. 557; and State v. Tracy, 294 Mo. 372, 243 S.W. 173. Three of these cases, along with others of the same tenor, were recently distinguished in State v. Crayton, Mo.Sup., 354 S.W.2d 834[3], in which the view was expressed that defense counsel should be permitted to examine a paper or document from which the witness has refreshed his recollection while he is on the stand testifying, but this is not required where the paper or document is not produced and used at the trial (and that this is true notwithstanding the paper may have been examined by the witness pri- or to the trial). That principle applies here. Keck did not use his private notes while on the stand testifying. He had used them sometime during the week prior to the trial to refresh his memory, and he did not have them in his possession at the trial; and he testified at the trial from his own personal recollection, refreshed as aforesaid, but not then aided and assisted by the notes in hand.

At the time Keck gave his pretrial statement he told defendant’s counsel that he did not have an independent recollection of all the facts, and indicated that he intended to refer to his private notes. With knowledge, prior to trial, of the existence of the private notes, and that they might vary from the account given in the pre-trial statement, defendant could have subpoenaed the private notes in preparation for the trial. This was not done. Instead, relying on Keck’s pre-trial statement, defendant took the chance that Keck’s re-reading of his private notes would not awaken a recollection contrary to the pre-trial statement. When Keck’s testimony at the trial conflicted with his pre-trial statement defendant did not apply to the court for the issuance of a subpoena duces tecum commanding Keck to produce the private notes, under the provision of Sup.Ct. Rule 25.19, V.A.M.R. (Had he made such an application it would have been discretionary with the court whether the trial should be recessed pending production of the private notes. State v. Crayton, Mo.Sup., 354 S.W. 2d, 1. c. 838 [3].) Nor did defendant file a motion to produce and permit inspection under Sup.Ct. Rule 58.01; § 510.030, V.A.M.S., assuming that procedure was available to defendant. (It may not have been available, for an order of production of papers is not warranted where there is merely a suspicion that they contain evidence material to the merits or defense of the action, State ex rel. Page v. Terte, 324 Mo. 925, 25 S.W.2d 459, 462 [2, 3], or upon the possibility of impeachment. State v. McDonald, 342 Mo. 998, 119 S.W.2d 286,289 [6]; State v. Kelton, Mo.Sup., 299 S.W.2d 493, 497 [9].) Defendant’s application was oral, and there was no showing that the private notes contained evidence material to the defense of the case. From the record we conclude that defendant’s purpose was to impeach the testimony of Keck. This comes within the ruling of State v. Kelton, supra, 299 S.W.2d, 1. c. 497 [8, 9], that under such circumstances defendant did not bring himself within the terms of the statute (and rule). And see State v. Cochran, Mo.Sup., 366 S.W.2d 360. Accordingly, there was no error under this record in refusing defendant’s oral request to require Keck to produce his private notes.

Defendant’s second point is error in giving Instruction No. 1, which follows:

“On the 23rd day of February 1962 the State of Missouri filed in this Court what is known and designated in law as an amended information which charges the defendant,. Edwin Malcolm Miller, with the offense of Attempted Burglary in the Second Degree. The defendant pleads not guilty to said charge, thereby raising an issue of fact between the defendant and the State of Missouri which you must determine from all of the evidence in this case.
“It is the duty of the Court to instruct you on all questions of law arising in this case, and it is your duty to receive such instructions as the law of the case and tp find the defendant guilty or not guilty, according to the law as declared to you by the Court in these instructions and the evidence as you have received it under the directions of the Court.
“ ‘Burglary in the Second Degree’ is the breaking and entering of any building in which there shall be at the time any goods, wares, merchandise, or other valuable things kept or deposited with the felonious intent on the part of the person, if shown to do such breaking, to steal, or commit any crime in such building.
“ ‘Attempted Burglary in the Second Degree,’ is committed when one attempts to commit the offense of Burglary in the Second Degree, as heretofore defined, and in such attempt does any act or acts suited and adapted to carry into execution a Burglary in the Second Degree, for the purpose and with that intent, but fails in the actual perpetration and accomplishment of such Burglary in the Second Degree, or is prevented or intercepted in the execution of such.
“If upon consideration of all the evidence in this case and the circumstances shown thereby," and under the instructions of the Court, you find and believe from such evidence, beyond a reasonable doubt, that in the City of St. Louis and State of Missouri on the 30th day of November 1961 the Defendant did feloniously, burglariously, and with the felonious intent then and there to steal from and in said building he did forcibly attempt to break and enter into a certain store, shop and building of Robert Hutter known and designated at the address of 5026 North Broadway in the City of St. Louis, Missouri, and if you further find and believe from the evidence, beyond a reasonable doubt, there was then and there and at said time kept and deposited in said store, shop and building certain goods, wares and merchandise of any kind and of some value that were the property of said Robert Hutter, and further find and believe from the evidence, beyond a reasonable doubt, that said attempted burglary, as defined heretofore in this instruction, was made by the defendant in this case by placing or. wedging a chisel and a punch under the door of the aforesaid building, and that the defendant herein was intercepted and prevented in the execution of Said Burglary in the Second Degree in the actual perpetration or execution thereof; then if you find all of the facts to be as required by this instruction, which is numbered one, you will find the defendant guilty of Attempted Burglary in the Second Degree; and unless you so find all of the facts to be as required by this instruction, you will find the defendant not guilty.
“ ‘Feloniously,’ as this word is used in these instructions, means wickedly and against the admonition of the law.
“ ‘Burglariously,’ as this word is used in these instructions, means with the intent to commit a burglary.
“Before you can find the defendant guilty of Attempted Burglary in the Second Degree, you must find from the evidence in this case, beyond a reasonable doubt, that the defendant, Edwin Malcolm Miller, attempted to break into and enter the aforesaid building, but to constitute such attempted breaking, no particular amount of force is necessary to be used.
“The only issue submitted to you and which you will determine by your verdict in this case is that of whether the defendant is guilty or not guilty; and if under the evidence and the instructions of the Court, you find the defendant guilty, you will so say by your verdict, but you will not affix any punishment for the guilt that you may find.”

First, it is claimed that attempted burglary in the second degree is improperly defined.

Section 560.070, V.A.M.S., provides that “Every person who shall be convicted of breaking and entering any building * * * in which there shall be at the time * * * any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein, shall, on conviction, be adjudged guilty of burglary in the second degree.”

Section 5S6.1S0, V.A.M.S., provides that "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, * * * be punished as follows: * *

The complaint is that the definition of attempted burglary (fourth paragraph) is improper and prejudicial, for the reason that it includes within its scope acts of preparation (laying tools near the door) as well as acts of perpetration (wedging the tools underneath the door).

The instruction follows the language of definition contained in § 560.070, but departs from the language of definition contained in § 556.150. It would have been better to say “does any act or acts toward the commission of a Burglary in the Second Degree” instead of “does any act or acts suited and adapted to carry into execution a Burglary in the Second Degree.” The variance was not prejudicial, however, because in the submitting portion of the instruction (the italicized portion of the instruction), and from the instruction considered as a whole, the jury was clearly and plainly required to find the doing of an overt act toward the commission of the offense. Before the jury could find defendant guilty of attempted burglary second degree the jury was required to find that defendant attempted to break and enter into the building by placing or wedging a chisel and a punch under the door. Under Instruction No. 1 the jury could not have found defendant guilty for merely assembling tools suitable and adaptable to the execution of an intention to break and enter, and laying them out on the area in front of the door.

Second, it is claimed that the use of the terms “said attempted burglary,” “said Burglary in the Second Degree,” and “such attempted breaking,” assumed there was an attempted burglary. We do not so interpret the language employed. The instruction required the jury to find the facts constituting attempted burglary second degree; the quoted references to burglary and breaking were sufficiently preceded by such requirements. The rights of defendant were adequately safeguarded in this respect.

Third, it is claimed that the next to the last paragraph, concluding with the words “no particular amount of force is necessary to be used,” is an abstract statement of law which prejudicially gives undue prominence to the primary issue of fact and misdirects the jury. The argument is that the challenged language “does not charge the jury that they must find that some force (though slight) was applied to effect a breaking.” This particular statement of the law on the matter of force is sufficient, taken in conjunction with the wording in the fifth paragraph “did * * * forcibly attempt to break and enter * *

Fourth, it is claimed the instruction submits facts not supported by evidence; that there is no evidence the defendant wedged a chisel and punch under the door, and that as stated the jury was not required to find that the tools were actually in a wedged position under the door, but were submitted a conclusion of fact; were given a roving commission, and the defense raised was excluded. We find sufficient proof to support the giving of this instruction. There was circumstantial evidence that defendant did the wedging, and at defendant’s request a circumstantial evidence instruction was given. The other objections are hypertechnical and insubstantial. The evidence showed and the instruction submitted the four requisite elements of an attempt to commit a crime: intent to commit a crime, an overt act toward its commission, failure of consummation and apparent possibility of commission, referred to in State v. Wright, 342 Mo. 58, 112 S.W.2d 571, 573 [5],

Defendant’s next point relates to the exclusion of evidence. There was a phone booth “inches” from the doorway and a foot and a half from the door itself. Hutter’s employee Thomas, while cleaning the store, observed a man in the phone booth at about 12:30 a. m. who was there for more than half an hour. Thomas also saw a man on the parking lot next to the store, standing next to a metal panel truck (not defendant’s truck), when Thomas left at 1:30 a. m. Evidence was offered but excluded that the phone coin-plate in the booth had been considerably damaged and that tools of similar nature to those found in the doorway were found in the phone booth; that the damage done to the phone booth could not have been done by any of the tools found in the phone booth, and that the only tool found in the area that could have done the damage to the coin-plate w'as the punch found in the doorway. This evidence was offered on the theory that as a part of the res gestae it showed that another person than defendant, in the area of the doorway in possession of tools, tampered with the phone, and that from this the jury could have believed that someone other than defendant left the tools in the doorway — that someone else had the opportunity to do the act charged against defendant — thus raising a reasonable doubt of defendant’s guilt. This evidence was properly excluded on the question of this defendant’s guilt or innocence. “In a word, evidence tending to prove that another person had an opportunity, merely, to commit the burglary, constituted no defense. * * * Evidence that one person had an opportunity to commit the crime would not exculpate defendant, who also had the opportunity, and committed the crime.” State v. Yandle, 166 Mo. 589, 66 S.W. 532.

Next, defendant claims error “in allowing the jury to rule on a question of law whether or not witness George Keck would answer a question.” The verdict was received on March 22. On April 2 defendant was given an extension of time, to May 1, to file a motion for new trial. Defendant filed his motion on May 1, but the foregoing point was not raised in the motion filed May 1, Notwithstanding the court had no power to further extend the time for filing a motion for new trial, Sup.Ct. Rule 27.20(a), and notwithstanding the court did not authorize the filing of any supplemental motion, defendant on May 11 filed what he denominated “Amendments to defendant’s motion for new trial,” raising this new point. The trial court had no power to entertain such a supplemental motion for new trial, State v. Clark, Mo.Sup., 277 S.W.2d 593, and the questions presented therein were not properly preserved for appellate review. State v. Townzell, Mo.Sup., 286 S.W.2d 785.

Finally, defendant claims error in admitting in evidence a crowbar found lying in the back of the truck which defendant drove to the scene, parked in a lot at the side of the building. Defendant says there was no connection between the crowbar and the crime charged, and admitting the crowbar in evidence prejudiced defendant “since the crowbar is commonly considered as a burglar tool.” Where the evidence shows that accused was in the vicinity of the scene of a burglary, or an attempted burglary, about the time of its commission, evidence that he was in possession of or had access to burglarious tools with which the crime was or might have been committed is competent, if under the particular facts of the case the tools (or weapons) are sufficiently connected with accused and the crime to become relevant and have some probative value and if they bear on the question of intent. State v. Lindner, Mo.Sup., 282 S.W.2d 547; State v. Smith, 357 Mo. 467, 209 S.W.2d 138; Annotation 143 A.L.R. 1199, and cases cited; 20 Am.Jur. Evidence, § 246, p. 239, § 273, p. 260, § 401, p. 361; 22A C.J.S. Criminal Law, § 611, p. 418, § 712, p. 956; Liakas v. State, 161 Neb. 130, 72 N.W.2d 677, and cases cited, 1. c. 684; State v. Harless, 249 Iowa 530, 86 N.W.2d 210[4]. The opened-up box of tools in the cab of the track, the punch and chisel wedged under the door, by which the aperture under the door could have been enlarged to the fullest extent to accommodate the prongs of a crowbar, plus the easy availability of the crowbar, all go together to show that defendant had the means to commit the offense of burglary, and the evidence of the crowbar under these circumstances was a circumstance for the jury to consider, on the question of intent.

No error appearing, the judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All the Judges concur.


text:
    Susan C. BOEHM, a Minor, by Her Mother and Next Friend, Esther May Batch, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Sgt. Howard Nelson, Appellants,
    No. 49325.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.
    Rehearing Denied June 4, 1963.

      David G. Dempsey, Richard B. Dempsey, Clayton, Edmund W. Albright, St. Louis, Eaker, Dempsey, Heath & Dempsey, Clayton, for plaintiff-respondent.
    Donald W. Bird, St. Louis, for appellant, St. Louis Public Service Co.
    Byron G. Carpenter, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant, Sgt. Howard Nelson.
   HOUSER, Commissioner.

Suit for damages for personal injuries sustained by an 11-year-old girl when a motor scooter on which she was riding as a passenger was struck by a public service company bus in a street intersection in St. Louis. Susan C. Boehm, pro ami, filed suit against St. Louis Public Service Company and Howard Nelson, operator of the scooter. A jury awarded plaintiff $55,000. After remittitur ordered and entered the verdict was reduced to $32,500, for which judgment was rendered against both defendants. Both defendants have appealed.

The collision occurred within the intersection of Michigan Avenue and Schirmer Street. The streets are approximately level. Michigan runs generally north and south. Schirmer runs generally east and west. Michigan is 35 feet 9 inches wide. Schir-mer is 30 feet wide. A building located on the southeast corner of the intersection extends out to the sidewalk line. The sidewalk on the Michigan side of the building is 12 feet wide. The sidewalk on the Schir-mer side is 9 feet 9 inches wide. Stop signs control east-west traffic on Schirmer. There are no stop signs at that intersection for the control of north-south traffic on Michigan. The stop sign for westbound traffic on Schirmer is located 13.7 feet east of the east curb line of Michigan. The distance between Schirmer and Courtois Street, the next street south of Schirmer, is 320 feet. There was a bus zone on the east side of Michigan located, according to plaintiff, one half block south of the intersection. The bus driver placed the bus stop 40-50 feet south of the intersection.

The collision occurred in the late afternoon of December 15, 1959. It was dark, or dusk, dark enough that lights on vehicles were turned on. Immediately preceding the collision the bus was traveling north on Michigan and the motor scooter was traveling west on Schirmer.

Nelson, with plaintiff seated behind him holding onto his waist, drove the scooter west on Schirmer, and came to a stop with the front wheel even with the stop sign. The scooter was “right over at” the north curb line of Schirmer. Plaintiff looked both to the north and to the south, and Nelson turned his head both ways. Nelson then “inched” his way forward to get a better view of the traffic, stopping a second time at a point probably halfway between the stop sign and the east curb of Michigan. When plaintiff looked south she saw a northbound bus, moving at 20 m. p. h., about a half block south of the intersection, traveling on the right or east side of the center of Michigan. She marked a cross on the plat showing where the bus was when she first saw it, and according to the scale, the bus was 132 feet south of the south curb line of Schirmer when she first saw it. The bus appeared to be slowing down and pulling in toward the east curb line of Michigan a little bit. It did not stop at the bus stop, but continued on north. When the bus was 60 feet south of the intersection it was going IS m. p. h. At that place the bus ■operator could see the stop sign. There was nothing to obscure his vision. The bus operator was some 30 feet south of the intersection when he first took a look at the intersection. The bus brakes were in good operating condition. At 15 m. p. h. the bus could be stopped in an emergency in 35 feet. The bus was traveling 10-20 m. p. h. as it entered the intersection, and at that point the operator started to accelerate the speed of the bus. The scooter was at the stop sign about 3 seconds; long enough for Nelson to ask plaintiff which way to go to get to their destination, and for plaintiff to tell him to go straight ahead. The scooter proceeded into the intersection. The next time plaintiff saw the bus it was 9 feet away. The bus was traveling 10 or 11 feet out from the east curb line of Michigan; 3 feet east of the center line. The front of the bus hit the scooter when the scooter was more than halfway across Michigan. The bus driver gave several versions of when he first saw the scooter. The answer most favorable to plaintiff was his admitted previously given testimony that he did not see the scooter prior to the accident, or at least not until it was “practically in front of [him] ; right on top of [him],” only 15 feet away from the bus. The bus driver “went for his brakes, to make an emergency stop” but the brakes did not take ahold before the impact occurred.

Respondent has filed a motion to dismiss Company’s appeal for failure of the statement of facts to conform to Supreme Court Rule 83.05(c), V.A.M.R. Company has moved to dismiss respondent’s brief for failure to comply with Supreme Court Rule 83.05, and has moved to strike respondent’s suggestions in support of her motion to dismiss, as scandalous and libelous under Supreme Court Rule 55.35. We have examined the several motions, the brief and the transcript of the evidence. Without indicating approval of Company’s statement of facts, or respondent’s brief or suggestions, all of the motions are overruled without comment.

Public Service Company’s Appeal

The cause was submitted to the jury as to defendant Company on negligent failure to keep a lookout and watch ahead and laterally ahead of westbound traffic on Schir-mer.

Company’s first point is error in not directing a verdict for failure of plaintiff to introduce substantial evidence that Company had the means and ability to avoid the collision had a vigilant watch and lookout been kept; that “there was no substantial evidence adduced as to where the front of the bus was when Nelson pulled into the intersection”; that plaintiff failed to establish the exact point where the bus operator became chargeable with knowledge that plaintiff had entered a position of danger, and failed to show that thereafter the bus operator had the time and ability to avoid a collision, and therefore there was no evidence from which the jury could find that failure to keep a lookout was the proximate cause of the collision. The alleged failure of proof is based on the theory that the probative value of the testimony of plaintiff was destroyed because it supports several inconsistent factual inferences, and is contradictory and conflicting, one version tending to prove the issues, the other tending to disprove them.

Inconsistencies in a plaintiff’s testimony are for the jury to resolve, unless they are diametrically opposed to each other with respect to some vital question in the case, so contradictory and without explanation as to preclude reliance thereon, and rob the testimony of all probative force, and so glaring as to conclusively show that the party testified untruthfully one way or the other. Ringeisen v. City of St. Louis, Mo. App., 238 S.W.2d 57, 63.

Plaintiff, a 13-year-old girl at time of trial, was subjected to intensive and exhaustive cross-examination which takes up 66 pages of the transcript. Some discrepancies, inconsistencies and variations were elicited, but none fatal to the submission, under the rules referred to in Rin-geisen, supra.

First, Company says plaintiff first testified that the scooter stopped approximately even with the stop sign, remained stopped for three seconds, pulled forward and came to a second stop, and remained stopped for an additional three seconds (a total elapsed time of six seconds) and later, inconsistently, testified that the total length of time that elapsed for both stops was three seconds. The record reveals no such sharp and clearly defined contradiction. Plaintiff, on cross-examination, testified that the motor scooter was even with the stop sign about three seconds and that the scooter then moved up a little bit to a second stop. Asked how long she was at a stop the second time, she said “Altogether, it was three seconds — about three seconds.” Again she was asked “How long were you at a stop the second time?” After an objection the court asked the witness whether by “altogether” she meant at the second stop or including both first and second stops. The question was repeated. Plaintiff inadvertently said “Three minutes” which, called to her attention, she corrected to “three seconds.” When again asked about the length of the second stop she answered “Both stops altogether was about three seconds.” This might well have ended the inquiry but the question was repeated in various forms seven times. Finally, succumbing to the suggestion that she had testified to two three-second intervals, plaintiff conceded “Yes, but I didn’t mean that,” and gave this explanation: “I meant I looked to the right and I looked to the left, and it was three seconds altogether. * * * For the first and second time we stopped.” The probative force of plaintiff’s testimony that both stops consumed a total of three seconds was not destroyed by the total exchange between plaintiff and Company counsel on this question.

Company claims plaintiff testified “that she never saw the bus and did not know of its whereabouts at the time the motor scooter started into the intersection.” This version of plaintiff’s testimony, reconstructed from the actual words she used, is not strictly accurate. From plaintiff’s testimony on this phase of the case we conclude simply that plaintiff clearly and definitely testified that she saw the bus twice; once after the scooter came to its first stop, at which time the bus was about' a half a block south of Schirmer, and again after the scooter started up, at which time the bus was nine feet away from the scooter.

Company claims plaintiff “guessed, the bus was then one half block” to the south. It is true that at one time in the course of the long cross-examination she used the word “guess”. On at least ten other occasions she made the definite, unequivocal estimate that the bus was “about a half a block” away when she first saw it. She is not to be cast as a matter of law for this one lapse.

Company implies a contradiction from plaintiff’s testimony estimating the distance at a half a block, and her testimony that the bus was then “about at the bus stop.” We find no contradiction here, in view of her testimony that “The bus stop was about a half a block away.” Company’s mistake is in assuming the truth of the bus operator’s testimony, that the bus stop was 40-50 feet south of the intersection.

Considering the evidence most favorable to plaintiff, the bus was one half block, or 160 feet, south of the intersection when plaintiff first saw the bus. It was then traveling 20 m. p. h. During the three seconds she looked at it the speed of the bus was reduced, and when the bus was 60 feet south of the intersection it was going 15 m. p. h. Schirmer is 30 feet wide, and the scooter was 6 feet from the north curb line of Schirmer, so the bus was 184 feet from the point of impact when plaintiff first saw the bus. If the scooter started forward three seconds after plaintiff first saw the bus, the bus would have traveled no more that 90 feet in that time, and therefore the bus would have been 70 feet south of the intersection and 94 feet short of the point of impact when the scooter started forward. If 4 seconds elapsed between the time plaintiff'first saw the bus and the starting forward of the scooter, the bus would have been 40 feet south of the intersection and 64 feet south of the point of impact when the scooter started forward. When the bus was 60 feet south of the intersection, proceeding at IS m. p. h., it could have made an emergency stop in 35 feet, so there was ample time and space to avoid this collision, in the exercise of the highest degree of care, if the bus operator had seen the motor scooter. There was nothing to prevent him from seeing it, but he did not see it at all prior to the collision, or else he did not see it until he was right on top of it. “Clearly there was substantial evidence of the failure of the operator to keep a proper lookout, and evidence that had he done so he could have, by the exercise of the highest degree of care, avoided the collision.” Anderson, J., writing on the same point with reference to this same collision, in Nelson v. St. Louis Public Service Co., Mo.App., 360 S.W.2d 356, 360 [1].

Company’s second point relates to the first paragraph of plaintiff’s verdict-directing Instruction No. 1, which follows:

“The Court instructs the jury that under the law. of this State the defendant, St. Louis Public Service Company, by and through its driver, Alphonse Dickneite, owed the duty to exercise the highest degree of care .to keep and maintain a constant, careful and vigilant watch and lookout ahead and laterally ahead while operating its bus so as to see, discover, and be cognizant of the presence, position, and movement of other vehicles at the intersection of "Schirmer Street and Michigan Avenue.”

Company’s objection is that this abstract statement of law is incorrect because it makes Company an “insurer”, of the safety of plaintiff instead of charging Company with exercising the proper degree of care; that it placed an absolute duty on Company to have “seen or discovered” the presence of' the vehicle on which plaintiff was riding as a passenger. In support of this theory, Company cites Welcome v. Braun, Mo.Sup., 319 S.W.2d 586, in which an instruction was condemned for barring recovery on the ground of contributory negligence if plaintiff could have seen defendant’s car, could have realized that there was danger of collision, and could have stopped, thus placing upon plaintiff an absolute duty, and not merely requiring plaintiff to exercise the highest degree of care in seeing, realizing and endeavoring to stop. The two instructions are not analogous. In Welcome v. Braun the instruction totally failed to limit the lookout duty to the exercise of the highest degree of care, whereas in the instant the jury was instructed that Company “owed the duty to exercise the highest degree of ■ care to keep' and maintain a * * * lookout * * * so as to see, discover, be cognizant * * The duty was expressly stated as a relative duty, qualified by the requirement of the exercise of the proper degree of care. “It seems to us'to lay down the proper rule, i. e., that defendant was under a duty to use the highest degree of care to see and discover the presence of other vehicles, and does not place an absolute duty upon defendant so to do.” Nelson v. St. Louis Public Service Co., supra, 360 S.W.2d, 1.c. 360 [2],

Company’s third point relates to this portion of Instruction No. 1 italicized below:

“* * * and if you further find that the defendant St. Louis Public Service Company, by and through its driver and agent, by the exercise of the highest degree of care in keeping a lookout and watch ahead and laterally ahead for westbound Traffic on Schirmer Street could and should have discovered the presence and movement of the motor scooter in time thereafter, by the exercise of the highest degree of care, to have avoided the collision mem-tioned in evidence, * *

Company’s objection is that this authorized the jury to find against Company for failing to take evasive action upon the mere appearance of the motor scooter, even before there was any probability or likelihood of danger of collision; that Company had no duty to take preventive action until there was apparent danger of a collision, which basic fact the jury was not required to find. In support of this theory Company cites Stakelback v. Neff, Mo.App., 13 S.W. 2d 575; Nydegger v. Mason, Mo.Sup., 315 S.W.2d 816; Burke v. Renick, Mo.App., 249 S.W.2d 513; Greenwood v. Bridgeways Inc., Mo.App., 243 S.W .2d 111, and Rosenkoetter v. Fleer, Mo.Sup., 155 S.W.2d 157. The same point was raised and the same cases cited in Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, which also involved a “lookout” instruction. We pointed out that these cases, involving the precautionary duty to slacken, stop or swerve, are inapplicable where the negligence involved is the failure to keep a lookout; that in a “lookout” instruction it is not essential to hypothesize the exact manner and means in and by which defendant could have avoided the collision so long as there is substantial evidence that he had the means and ability to have so acted that a collision would have been avoided; that plaintiff is not required in a lookout instruction to insert a finding that the duty to act was dependent on the fact of apparent danger of collision; that in this type of submission (lookout) “it is generally considered sufficient to hypothesize failure to keep a lookout and require a finding that such failure was negligence and directly caused the collision.” 329 S.W.2d l.c. 25 [9, 10]. See also Horrell v. St. Louis Public Service Co., Mo.Sup., 277 S.W.2d 612, 615 [5], and Anthony v. Morrow, Mo.App., 306 S.W.2d 581, 588 [8],

Company’s suggestion that the instruction improperly authorized the jury to find against Company for failure to take evasive action if its operator saw or should have seen the motor scooter “as it came to a stop sign in a position of safety, some 12 feet back from the intersection where the collision took place” is without merit. The instruction was predicated not only on failure to discover the presence but also failure to discover the movement of the motor scooter, in time thereafter to have avoided the collision.

Company’s fourth point is error in admitting in evidence Exhibit No. 1, a plat of the intersection, because “there was no showing that it was a true and faithful scale representation of the place, structures and landmarks it purported to represent as they existed on the day of the accident.” Company argues that it was drawn from measurements made 11 months after the date of the collision in question: that it was conceded that the bus zone sign portrayed on the plat had been moved at least once since the date of the collision; that there was no evidence that the street had not been widened, or that buildings had not been torn down or other changes had not occurred in the interim.

Assuming the validity of Company’s reasoning, and that it was error to admit the plat as evidence, it does not appear that the error was harmful to the rights of Company. The plat was used at the trial for the purpose of giving the jury a visual aid to the understanding of the locus in quo. Company counsel twice made use of it as an explanatory exhibit in examining witnesses. No condition shown on the plat, except the bus stop sign in the bus zone, was shown to have been different from the condition as it existed on December 15, 1959. The plat was not used to misrepresent the position of the bus stop sign or the bus zone. On the contrary, the transcript indicates that it was made clear to the jury that on December 15, 1959 the bus stop was a half block south of Schirmer, and not where the plat showed it to be.

Company’s fifth point:

“The trial court erred in allowing plaintiff to place an ‘X’ on a plat of the intersection, which purported to represent the position of defendant’s motor-bus at the time she first observed it, when there was no proper foundation laid to show that plaintiff was competent to do so, or that she knew or understood the plat, its scale, the distances in inches, feet or yards portrayed therein, or the location of the landmarks portrayed therein; and the placing of said ‘X’ had no foundation from her testimony and was nothing more than guesswork, speculation and conjecture on plaintiff’s part.”

There is no merit to this point because the court, after first overruling Company’s objection to plaintiff’s marking the “X” on the plat, thereafter reversed its ruling, stated that it had improperly allowed her to do so, ordered that the “X” be stricken from the plat, and orally instructed the jury to disregard the “X” mark which plaintiff placed on Michigan Avenue. A motion for a mistrial on this same ground was overruled. In its motion for new trial Company complained of error in not declaring a mistrial on this ground, but failed to carry forward in its points and authorities the alleged error of the court in overruling its motion for a mistrial, and therefore has waived that point.

Company’s sixth point is error in permitting reference in plaintiff’s opening statement and in plaintiffs and her surgeon’s testimony to a series of operations and skin grafts, surgical debriding and amputation of tissue and arteries. Company contends these were items of special damage not pleaded and were beyond the general allegations of injury that “plaintiff was caused to sustain certain serious, painful, permanent, progressive and disabling injuries to her person, to-wit: “(A) The plaintiff’s left leg, ankle and foot, the bones, muscles, joints, tendons, tissues, nerves, cells and all parts thereof were broken, fractured, dislocated, displaced, sprained, strained, torn, cut, twisted, bruised, contused and .rendered permanently weak, disfigured, impaired in function, and painful.”

Supreme Court Rule 5S.21 and § 509.200 provide: “When items of special damage are claimed, they shall be specifically stated.” Evidence of the foregoing operations, etc. would have been inadmissible to augment plaintiff’s damages as special items of damage, under this rule and statute, since operations of this kind are not the necessary and inevitable result of the type of injury pleaded. Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657; Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813; State ex rel. Grisham v. Alien, 344 Mo. 66, 124 S.W.2d 1080; Knaup v. Western Coal & Mining Co., 342 Mo. 210, 114 S.W.2d 969; Ziervogel v. Royal Packing Co., Mo.App., 225 S.W.2d 798. It does not follow, however, that the evidence was inadmissible for all purposes. “An injury or condition, though not pleaded, and therefore, not itself available as a part of the basis for the assessment of damages, nevertheless may be of such character as to constitute evidence tending to prove a condition or injury which is pleaded as a basis of recovery. The former does not lose its competency as evidence because it is not made a part of the cause of action pleaded.” Gilchrist v. Kansas City Rys. Co., Mo.Sup., 254 S.W. 161, 164; Rosenzweig v. Wells, 308 Mo. 617, 273 S.W. 1071; Smart v. Raymond, Mo.App., 142 S. W.2d 100, 105; Garvey v. Ladd, Mo.App., 266 S.W. 727, 732; Wheeler v. Breeding, Mo.App., 109 S.W.2d 1237, 1242. Plaintiff specifically pleaded serious, painful, permanent and disabling injuries to the bones, tendons, tissues, etc. of all parts of her leg, disfigurement and impairment of function. Plaintiff had a right to prove the necessary treatment for the injuries which were pleaded. Plaintiff’s counsel’s statements at the time this evidence was challenged clearly indicate that it was offered for this reason. The surgeon testified that the skin grafts were necessary to provide coverage for the tissue that was exposed; that it was “absolutely essential that it be covered with some form of skin” and that the necrotic condition which required amputation of tissue developed “as a natural result of this injury.” Evidence as to the “mode and incidents” of this necessary treatment was admissible under the allegations to which reference has been made, Hollensbe v. Pevely Dairy Co., Mo.App., 38 S.W.2d 273, 275 [2], for the purpose of showing the seriousness of the injuries to plaintiff’s leg and her probable suffering. Trascher v. Eagle Indemnity Co. of New York, La.Ct. App., 48 So.2d 695, 699 [5]; Gulf, C. & S. F. Ry. Co. v. Sullivan, Tex.Civ.App., 168 S.W. 473, 475 [2], Plaintiff’s instructions did not refer to the operations, etc. as an element to be considered in assessing the damages. Defendant had a right to an instruction limiting the purpose for which the jury could consider this evidence, but it did not see fit to offer such an instruction.

Company’s seventh point is that the original verdict of $55,000 was so grossly excessive as to be conclusive proof that it was the result of passion, prejudice and misconduct upon the part of the jury, and that appellant is entitled either to a new trial or an additional remittitur. To substantiate this point appellant argues that (1) the functional residual of the injuries is minimal; that plaintiff admitted that she walked, ran, skated and conducted all of her normal activities, claiming only that she tired more easily than before; (2) the verdict was “undoubtedly influenced by at least one of the three jurors who made material misrepresentations under oath about their qualifications to sit as jurors”; and (3) the conscience of the trial judge was so shocked that he felt called upon to cut the verdict almost in half.

The mere size of a verdict — the fact that it may be excessive — does not in and of itself establish that it was the result of bias, passion or prejudice, without showing some other error committed at the trial. Nussbaum v. Kansas City Stock Yards Co. of Maine, Mo.Sup., 359 S.W.2d 335, 341, and cases cited. No other error is suggested, unless it be appellant’s unsubstantiated statement that the verdict was influenced by one of three jurors alleged to have made misrepresentations on voir dire as to their qualifications. This is not urged as a separate point on appeal, and no effort is made to point out what misrepresentations, if any, were made.

Is the verdict, as reduced by re-mittitur, still excessive? Plaintiff was rendered unconscious and woke up in the ambulance. When examined at the hospital she was in shock, pulse rate 140; somewhat ob-tundic. She had lost considerable blood from the open, bleeding wound on her leg, and required a blood transfusion. There was a gross deformity of the leg between knee and angle, due to the fact that plaintiff sustained two fractures of the tibia. The skin was laid open “like a book” from 2½ inches below the knee all the way to the ankle and across onto the dorsum of the upper part of the foot. The bone, the underlying muscle and its fascia covering were exposed. The artery into the dorsum of the foot was torn. The veins returning blood to the foot were destroyed. Nerves were destroyed. Leaves and sticks were ground into the fat and skin. Whole blood and fluids were administered until pulse rate was reduced, and then anaesthesia was administered and the wound irrigated, cleansed and debrided, which means removal of tissue which does not have an adequate blood supply to survive. The flap was sutured loosely into place. The two fractures were reduced, or realigned, under direct vision. There was gross damage to the soft tissues. A plaster cast was applied. Eighty per cent of the skin flap became necrotic (died). After adequate blood supply grew in from the bone on the deep surface the necrotic portion was removed by surgery, and thereafter split thickness skin grafts from plaintiff’s thigh were grafted to provide coverage for the tissue that was exposed. There were two engrafting operations. She was in the hospital from December 15, 1959 to February 14, 1960. In March a small bone protruding through one graft was removed. In April examination revealed acceptable but not perfect alignment, and the need of further coverage for the leg. Due to posterior angulation of the bone above the ankle the ankle was tilted about 20 degrees off the horizontal plane, resulting in an abnormal gait or stride. It was angu-lated in two places, and is a major deformity above the ankle, where the bone bows towards the front. This angulation could be corrected by an osteotomy, or refracture and realignment, which was not recommended. Left alone, nature might change but would not correct the deformity. In August, 1960 swelling was noted, due to destruction of veins and lymphatics. In October, 1961 the graft had healed and the swelling was very minimal. No arterial pulse was observable in the foot. The ankle joint remained tilted to the side approximately 20 degrees. The minimal residual angulation at the upper fracture had gradually corrected itself. There has been a gross alteration of the growth centers of the bone. The epiphysis is not closed in its entirety. The results of this were unpredictable, and could not be assessed until full maturity. The angulation of the ankle was permanent, and the widened ankle joint mortise eventually will lead to changes in the ankle joint. Whatever deformity remains when the epiphysis closes will be permanent. The veins and arteries will not restore themselves. The cosmetic damage is permanent and may become worse as time goes on.

Plaintiff, an 11-year-old girl at the time of the collision, sustained painful, serious, disfiguring injuries, was hospitalized two months, and emerged with a permanently damaged and distorted leg and a permanent limp. We must remember, however, that this is a broken leg case, not an amputation case. Although grievous and impressive the injuries do not compare in seriousness with those in many broken leg cases in which large verdicts have been upheld. Pins, wires, plates, traction, braces and crutches do not figure in this case. No other mem-hers or organs of plaintiff’s body were injured. There was no testimony about pain, past, present or future (although plaintiff must have experienced considerable pain) and no evidence of headaches, nervous involvement or psychic disturbance. There was a good union of both fractures; “a pretty good result”; no necessity of repeated hospitalization; no ulceration; no subsequent operations after discharge; no shortening of the leg. Although plaintiff tires more easily than before, she is able to run, jump, walk, skate and play, although not as hard and fast as previously, and if she skates or walks “a lot” her leg swells. There is no demonstrated loss or diminution of earning power; no demonstrated disability to earn a living or pursue normal household duties. No loss of earnings, doctor’s and hospital bills, or other items of special damage are to be accounted for in this award.

We have reviewed a considerable number of verdicts in broken leg cases, challenged on the ground of excessiveness, not only in this state, but also in other jurisdictions. See 10 Mo.Digest, Damages ‘®=>132 (6); and see résumés of more than 300 cases involving excessiveness of verdicts where one leg was fractured, in 16 A.L.R. 2d 3, § 108, beg. p. 257, and in the supplemental service. We have considered, among others, Hill v. St. Louis Public Service Co., 359 Mo. 220, 221 S.W.2d 130; Fortner v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 10; Lang v. St. Louis-San Francisco Ry. Co., 364 Mo. 1147, 273 S.W.2d 270; Willis v. Wabash R. Co., Mo.Sup., 284 S.W. 2d 503; Chrum v. St. Louis Public Service Co., Mo.Sup., 242 S.W.2d 54; Gurley v. St. Louis Public Service Co., Mo.Sup., 256 S.W. 2d 755; Glowacki v. Holste, Mo.Sup., 295 S.W.2d 135; Bowyer v. Te-Co., Inc., Mo. Sup., 310 S.W.2d 892; De Mariano v. St. Louis Public Service Co., Mo.Sup., 340 S.W. 2d 735; Humes v. Salerno, Mo.Sup., 351 S.W.2d 749; and Hahn v. Terminal R. Assoc. of St. Louis, Mo.Sup., 355 S.W.2d 867.

Without tiresome repetition of the well-known rules, but considering all of the pertinent factors, and in spite of our reluctance to order a further cut where the trial court has ordered a substantial remittitur, Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, 32, it is our duty to declare that this verdict is still excessive by at least $7,500.

Defendant Nelson’s Appeal

Appellant Nelson assigns error in giving plaintiff’s verdict-directing Instruction No. 2, which was based on failure of Nelson to keep a lookout.

We have concluded that No. 2 is not broader than the petition, and did not permit the jury to roam beyond the pleaded acts of negligence, e. g., that Nelson “failed and omitted to keep a proper lookout either ahead or laterally ahead for vehicles then and there present or approaching said intersection as aforesaid.” No. 2 submitted failure of Nelson “to keep a lookout ahead and laterally ahead” and ability to discover the presence and movement of the bus, by “keeping a lookout and watch ahead and laterally ahead for northbound traffic on Michigan Avenue.” This was no roving commission, and No. 2 is not broader than the petition. McCarthy v. Sebben, Mo.Sup., 331 S.W.2d 601, 604 [1].

Instruction No. 2 was not erroneous in not hypothesizing facts demonstrating the presence and movements of the bus in such a manner as to bring into existence a position of danger of collision between the two vehicles, or in not hypothesizing facts showing that Nelson could have avoided the collision. The same point was raised by appellant Company (Point No. 3). What we said there applies here.

There was no failure to prove that Nelson could have avoided the collision after a duty to act arose. Under the evidence the jury could find that after Nelson had stopped his motor scooter at the stop sign, and had both feet on the ground, he could see one half block or more to his left or to the south, at a time when the bus was approaching from the south at 20 m. p. h. at a point one half block south of Schirmer; that he could have seen the bus, but failed to see it; that he could have avoided the collision by remaining in his stopped position until the bus passed through the intersection. There was no error in form, and ample evidence to support the giving of, Instruction No. 2.

Next, appellant Nelson assigns error in admitting in evidence Company’s Exhibit A, the St. Louis City Hospital record pertaining to Nelson, dated December 15, 1959, containing this entry: “Does not know whether he was unconscious or not. Rational, but slightly confused. Alcoholic breath.” (Notations made by Dr. J. Young, assistant resident in surgery.) Three objections are raised: 1. Immaterial, irrelevant, hearsay, not tending to prove that Nelson was intoxicated or disabled from consuming alcohol; 2. Privileged communication between doctor and patient, made for purpose of enabling doctors to treat Nelson, not plaintiff; 3. Nelson, who on cross-examination by Company counsel had denied drinking intoxicants, could not be impeached on this entirely collateral matter; Company was bound by his answer.

There was no objection on the ground that the hospital record was not qualified under the Uniform Business Records as Evidence Act, § 490.680, and appellant Nelson concedes that the hospital entry was made for the purpose of enabling the doctors at the hospital to treat him. This eliminates the hearsay objection. Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W. 2d 663, 666, 55 A.L.R.2d 1022.

The pleadings raised no issue of Nelson’s intoxication. There was no direct testimony that he had taken any intoxicating drinks or that he was under the influence of intoxicants. On cross-examination Company counsel asked Nelson if he had had anything of an intoxicating nature to drink. Nelson said “No.” Plaintiff’s mother testified that she saw Nelson at her home a few minutes before the collision; that Nelson had nothing but a Pepsi-Cola to drink and there was nothing about his actions or conduct when he left the house to indicate that he had had anything to drink. The bus driver testified Nelson drove his motor scooter through the stop sign without stopping at 20 m. p. h., with no headlight burning. A police officer who rode to the hospital in the ambulance with Nelson and was directly over him “Never smelled any alcohol at all.”

Although the pleadings did not specifically raise the issue of intoxication, evidence that Nelson was not in full possession of his faculties or that his faculties were impaired by the use of alcohol would be admissible under the general issue. SA Am.Jur. Automobiles and Highway Traffic, § 942, p. 832. Evidence that Nelson had been drinking intoxicants would be a circumstance to be considered by the jury in determining negligence or not — whether Nelson was capable of exercising the highest degree of care, and whether he did exercise that degree of care, in the operation of the motor scooter ; would bear on the principal and ultimate issue and not on a collateral issue.

That Nelson had an alcoholic breath when admitted to the hospital would be a circumstance showing that he had been drinking. In Bilodeau v. Fitchburg & L. St. Ry., 236 Mass. 526, 540, 128 N.E. 872, it was held that a hospital record entry that an injured man vomited fluid with an odor of whiskey could be considered in deciding whether the patient had used whiskey shortly before the accident. In Clark v. Beacon Oil Co., 271 Mass. 27, 170 N.E. 836, a hospital record “marked odor [of] alcohol on breath,” referring to a person injured in an automobile collision, was held admissible on the question whether he had been operating a vehicle under the influence of liquor. In Leonard v. Boston Elevated Ry. Co., 234 Mass. 480, 125 N.E. 593, a part of a hospital record “Odor of Alcohol on Breath” was held properly admitted in evidence in an injury case. And see Cowan v. McDonnell, 330 Mass. 148, 111 N.E.2d 759.

When coupled with evidence of erratic driving (running through the stop sign without stopping at a speed of 20 m. p. h.) the evidence of alcohol breath became relevant and material. Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865, 868 [1].

The claim of privilege has not been properly preserved for appellate review. When Company’s Exhibit A was offered in evidence these objections were made: hearsay; no opportunity to cross-examine Dr. Young; prejudicial; collateral matter as to which, Nelson, having answered, could not be impeached; immaterial, irrelevant, and not proof of any pleaded issue; violation of Nelson’s constitutional rights; tend to convict Nelson of a felony. That the exhibit was a privileged communication as between doctor and patient “was not assigned as a reason for excluding the exhibit from evidence when it was offered at the trial and such reason may not now be considered.” Teel v. May Department Stores Co., 352 Mo. 127, 176 S.W.2d 440, 446 [12]; Ragsdale v. Tom-Boy, Inc., Mo.App., 317 S.W. 2d 679, 688, 689: [14],

The judgment is affirmed as to both defendants on the question of liability. If plaintiff within 15 days from the date of the filing of this opinion will file in this court a remittitur of $7,500, the judgment will stand affirmed as to both defendants as of the date of its rendition in the sum of $25,000. Otherwise the judgment will be reversed and the cause remanded for a new trial as to both defendants on the issue of damages only.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.