author: OLDHAM, Special Judge.

text:
    Gladys HEIFNER, Plaintiff-Respondent, v. Donald F. SPARKS d/b/a Sparks Funeral Home, Defendant-Appellant.
    No. 31866.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.

      Dearing, Richeson, Weier & Roberts, J. Richard Roberts, Hillsboro, for defendant-appellant.
    Thurman, Nixon & Smith, Robert Lee Smith, Hillsboro, for plaintiff-respondent.
   OLDHAM, Special Judge.

This is an appeal by the defendant Sparks (the parties are hereinafter referred to by their designations in the court below) from a judgment in the sum of $10,000.00 rendered upon the verdict of a jury in the Circuit Court of Washington County, Missouri. Washington County is within the territorial district of this court and the amount involved is less than $15,000.00, therefore jurisdiction of this appeal is in the St. Louis Court of Appeals.

On August 4, 1962, plaintiff Gladys Heif-ner’s husband, Albert Heifner, was found unconscious on the ground near a pond, which he had been cleaning, and plaintiff and her son, Gerald Heifner, placed him in the family car and drove him into Potosí, where defendant’s ambulance was engaged to take him to the Bonne Terre Hospital. Mr. Heifner was placed on a cot in the ambulance and plaintiff sat next to the cot on a jump seat, while Gerald Heifner rode in the front seat with defendant’s employee driver, Golden Fryman. At the time Mr. Heifner was placed in the ambulance, plaintiff told the driver to get to the hospital as quickly as possible so that the trip was made at emergency speeds as high as 65 to 70 miles per hour and with the red light on the ambulance operating and the siren sounding upon occasion.

At a place about one mile from Bonne Terre there was a bridge which was so built as to create a rather sharp hump, or bump, in the road. The ambulance crossed the bridge at a speed of from 40 to 50 miles per hour and struck the hump in such manner as to throw plaintiff out of the jump seat so that her head struck the top of the ambulance and her husband was thrown 18 inches to 2 feet above the cot. When plaintiff came down she struck the seat, or some hard object, injuring her back to the extent that she “blacked out” and upon arrival at the hospital had to be assisted out of the ambulance and was admitted to the hospital. The plaintiff’s medical evidence was to the effect that plaintiff suffered compression fractures of the third and fourth lumbar vertebrae and she was hospitalized for two weeks at Bonne Terre. Upon her release from this hospital she wore a brace for her back until October 5, 1962, when she was sent to Barnes Hospital for examination and treatment and was hospitalized for five days and in June of 1963, she was again hospitalized at Barnes for a period of fifteen days. Upon her release from Barnes the first time another lighter brace was prescribed which she was wearing at the time of trial. At the trial plaintiff testified she still suffered pain in the low back which at times radiated down into her legs. She was unable to carry out her normal household duties, nor to do the walking, bending, etc. necessary in gardening, picking berries, canning foods, etc. as she had done immediately before the accident. Reference to other facts in the transcript will be made later as necessary.

Plaintiff’s petition charged defendant with negligence in the operation of the ambulance in several respects, including operation at a high and excessive rate of speed, which is the only allegation of negligence submitted to the jury.

Defendant’s answer denied that defendant was negligent in any respect charged in the petition and alleged that plaintiff was guilty of contributory negligence, in that plaintiff “failed to use the ordinary degree of care as a passenger in an ambulance responding to an emergency situation in that plaintiff failed to make any effort or attempt to brace herself, hold on or balance herself in the seat,” and in certain other respects not in issue here.

Defendant’s motion for new trial sets out a number of alleged errors on the part of the trial judge which we have considered but which are not briefed and in which we find no merit. Defendant has briefed and we will consider only the alleged error of the court in refusing to give either defendant’s Instruction A or B concerning contributory negligence on the part of the plaintiff.

The case was submitted to the jury under plaintiff’s Instruction P-1 which was the conventional excessive speed instruction, (the language of which was approved in Hausherr v. Kansas City Public Service Co., Mo.App., 268 S.W.2d 433 and Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496) and defendant’s Instruction D-4 which was the conventional converse of P-1.

Defendant concedes in his brief that while the exact status of the plaintiff as a guest or paying passenger was not determined, defendant’s driver was required to use the highest degree of care in the operation of the ambulance, regardless of plaintiff’s precise status and that plaintiff was required to use ordinary, or reasonable care for her own safety. Defendant admits plaintiff was not contributorily negligent as a matter of law but contends that under the circumstances in evidence in this case it was a question for the jury as to whether or not plaintiff used ordinary or reasonable care for her own safety and that this question should have been submitted to the jury by either Instruction A or B.

It is well established that defendant has the right to have his theory of the case submitted to the jury by instructions which are within the pleadings and evidence and which are correct in both form and substance, and that the court may not be convicted of error in refusing to give an instruction which is not substantially correct in both form and substance, even if the giving of the instruction would not be reversible error, Orloff v. Fondaw, Mo.App., 315 S.W.2d 430, and cases cited therein.

Defendant’s Instruction A was as follows r

“The Court instructs the jury that Gladys Heifner, on the occasion mentioned in the evidence, was required to exercise that degree of care that an ordinary prudent person under the same or similar circumstances would exercise for her own safety and could not entrust herself absolutely to the driver of the vehicle in which she was riding.
“The Court further instructs the jury that if you find and believe from the-evidence that the plaintiff Gladys Heif-ner was, on the occasion mentioned in the evidence, riding on the jump seat, described in the evidence, in the rear of the ambulance driven by Golden Fry-man ; and
“If you further find that on the occasion in question Mr. Heifner was ill and being transported to the Bonne Terre Hospital by said ambulance; and
“If you further find that on the occasion in question plaintiff Gladys Heif-ner was not holding onto her seat or any other object and was not bracing herself in any manner in an attempt to maintain her balance on said seat and'. if you further find that such failure, if she did so fail, was negligent and that such negligence, if any, directly caused or directly contributed to cause the accident mentioned in the evidence, if any, and plaintiff’s injuries, if any, then your verdict shall he in favor of defendant Donald F. Sparks and against plaintiff Gladys Heifner and this is true without regard to whether or not you find the defendant Donald F. Sparks negligent under other instructions of the Court.”

Defendant’s Instruction B was a duplicate of Instruction A except for the addition of the following paragraph, which would he the fourth paragraph of said Instruction B:

“If you further find that as the said ambulance traveled from Potosí to the bridge mentioned in the evidence, the back of the ambulance swayed and bounced; and”

The first paragraph of this instruction requires plaintiff to exercise that degree of care that an ordinary prudent person, under the circumstances, would exercise for her own safety, “and (plaintiff) could not entrust herself absolutely to the driver of the vehicle in which she was riding. * * * ” (Emphasis supplied.) This paragraph has been held erroneous in Happy v. Blanton, Mo., 303 S.W.2d 633, 638, as imposing an unrealistic duty on a mere passenger of maintaining a lookout and warning a driver of dangerous situations she could have seen, even though the driver was exercising the highest degree of care and there was no indication he would not continue to do so.

In this connection it should be pointed out that plaintiff, in this case, was riding in the back of the ambulance and could see out only with difficulty, if at all, and that, in spite of the hilly and curvy conditions of the road, plaintiff had not had difficulty remaining in her seat prior to the accident, and that the testimony of all three persons in the ambulance, including defendant’s driver, was to the effect that there was no material bouncing, swaying or jolting of the ambulance, and that the ambulance was making a normal emergency run. Nothing occurred to warn plaintiff that the driver was not using due care or to cause her to hold on or brace herself or to warn the driver of any dangers apparent to her. We agree with the statement of the Court in the Happy case that (loe. cit. 638), “ * * * This is not a correct statement of the legal duty of a guest passenger in an automobile. Only mischief and confusion could result from a requirement that in the exercise of ordinary care every guest passenger must at all times be a ‘back seat driver.’ ”

It is common knowledge that passengers do largely rely upon the driver who has the exclusive control of a motor vehicle and under ordinary circumstances have the right so to do. As was said in Ketcham v. Thomas, Mo., 283 S.W.2d 642, 645:

“ * * * ‘In the absence of visible lack of caution of the driver or known imminence of danger, a guest may ordinarily rely upon a driver who has exclusive control of the vehicle’, Toburen v. Carter, supra, 273 S.W.2d 161 at page 164, and it is a matter of common knowledge that under ordinary circumstances such occupants do largely rely upon the driver, who has the exclusive control and management of the vehicle, and who is exercising the required degree of care.

The only evidence which could possibly be construed as establishing that there was any unusual bouncing, swaying or jolting of the ambulance during this trip came from the defendant (who was not present in the ambulance) as follows:

“Q. (Mr. Roberts) Is there anyplace other than this bridge where you had jolts, if you are going at an emergency speed?
“A. (Mr. Sparks) Yes.
“Mr. Roberts: That’s all.”

Even if this testimony is admissible, it does not state what happened on this particular trip but is only a general statement that there was a place or places where the ambulance, if not operated properly, could have jolted. From the testimony of those present the ambulance did not jolt, therefore the driver must have avoided such place or places mentioned by defendant Sparks. There being no evidence indicating that there was a lack of caution on the part of defendant driver, apparent to plaintiff, the above mentioned part of both instructions is held to be erroneous, Happy v. Blanton, supra, 303 S.W.2d loc. cit. 638, and cases there cited.

Having found that the first paragraph of each instruction imposed an improper duty upon the plaintiff and thus, that it was not error to refuse said instructions, (Orloff v. Fondaw, supra) we do not feel it necessary to consider the other assignments of error in said instructions extensively. We think it sufficient to say that both instructions omit the submission of pri- or warning to plaintiff, which, in this case, we consider an essential element to be found by the jury before plaintiff can be held to be contributorily negligent, Ketcham v. Thomas, 283 S.W.2d loc.cit. 647, supra. We further think that even if the instruction had properly submitted this issue, the court could not be convicted of error in refusing the instruction for the reason that it was not supported by the evidence as pointed out above.

Defendant insists that such prior warning is not an essential element to be found by the jury and cites Shanklin v. St. Louis Public Service Co., Mo.App., 370 S.W.2d 649. We think the holding in the Shanklin case is not in point in this connection because the language of the instruction there involved was different from those submitted by defendant in this case.

Further, neither instruction required a finding by the jury that the plaintiff could have prevented herself from being thrown from her seat by holding on or bracing herself and thus have avoided injury. The instructions simply told the jury that, if plaintiff did not hold on or brace herself, she could be found guilty of contributory negligence without requiring a finding that such negligence contributed to plaintiff’s injuries, which, in effect, left the matter open to surmise and conjecture. We think this is an omission of an essential element of a contributory negligence instruction. Shanklin v. St. Louis Public Service Co., supra; Voyles v. Columbia Terminals Co., Mo. App., 239 S.W.2d 559; Triplett v. Beeler, Mo., 268 S.W.2d 814, loc. cit. 818.

Finding no error in the refusal of the court to give defendant’s Instructions A and B or in the matters presented by defendant’s motion for new trial and not briefed, the judgment is affirmed.

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


source: Caselaw Access Project

author: SAMUEL E. SEMPLE, Special Judge.

license: Public Domain

text:
    The STATE of Missouri, PlaintiffRespondent, v. Olivia PENNINGTON, Defendant-Appellant.
    No. 31640.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.

      Wyvetter H. Younge, St. Louis, for defendant-appellant.
    Lawrence J. Lee, Pros. Atty., Robert W. Van Dillen, Asst. Pros. Atty., Sydney Fa-ber, Asst. Pros. Atty., Jasper R. Vettori, Assoc. Pros. Atty., Charles W. Kunderer, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
   SAMUEL E. SEMPLE, Special Judge.

The defendant, Olivia Pennington, was found guilty by a jury of stealing property of a value of less than Fifty Dollars and her punishment was assessed by the jury at a fine of One Hundred Dollars. The trial court, after overruling defendant’s Motion for New Trial, sentenced defendant in accordance with the verdict of the jury from which judgment and sentence the defendant has perfected an appeal to this Court.

The State presented evidence in substance that on June 30, 1962 at the downtown store of the Famous Barr Company Marie Asbille, a security employer of the store, saw defendant take a handbag from a counter in the store. That Marie Asbille saw defendant remove a price tag from the handbag while she was escorting defendant to the store security office. That Marie Asbille saw defendant mark the handbag with lipstick while defendant was in the store security office. Defendant denied that she had stolen the handbag and testified that she had purchased the bag at the Famous Barr Store in Clayton during the month of May, 1962, and that the hag was used as it had a lipstick mark on it. Defendant presented evidence by her daughter that she owned the bag and also testimony of her employer that she had seen the bag in defendant’s possession in the early part of June, 1962.

Defendant complains that Instruction No. 1 given by the Court was erroneous as it failed to refer to defendant’s main defense of ownership. No instruction was given by the Court or requested or offered by defendant on her defense. Defendant’s theory appears to be that the Court is required to instruct the jury in writing on all questions of law necessary for their guidance and cites V.A.M.R. 26.02(6) and the cases of State v. Webster, Mo., 230 S.W.2d 841, State v. Slusher, 301 Mo. 285, 256 S.W. 817.

This contention is not well taken as the authorities cited by defendant are cases involving felonies. In this case we are dealing with a misdemeanor. In the case of State v. Griffin, Mo.App., 289 S.W. 2d 455, 458, where the defendant claimed the court erred in not instructing the jury on his defense even though no instruction was requested on the theory that the court was obliged to instruct upon all questions of law whether requested or not under § 546.070(4), V.A.M.S., this court held that this section of the statutes, which is substantially the same as V.A.M.R. 26.02(6), does not apply to misdemeanors and a mere non-direction by the court in such cases is not error. State v. Magruder, Mo.App., 219 S.W. 700; State v. Brown, Mo.App., 293 S.W. 87; State v. Egan, Mo.App., 272 S.W.2d 719.

Defendant complains that the burden of proof instruction given by the court as Instruction No. 3 was erroneous because it required a finding of proof to the jury’s satisfaction, thus opening the door for a wide variance in the degree of proof required of the State. This contention is without merit as the burden of proof instruction given in this case is in the exact form as the standard burden of proof instruction approved in State v. Caffey, Mo., 365 S.W.2d 607, 611, 612, where the same objection was raised to the phrase “to your satisfaction” as the defendant contends here. The defendant cited the cases of Lebow v. Missouri Public Service Company, Mo., 270 S.W.2d 713 and Hustad v. Cooney, Mo., 308 S.W.2d 647, both of which deal with burden of proof instructions in civil actions based on negligence as distinguished from a criminal action and are clearly not in point.

The defendant next complains that the court erred in refusing to give defendant’s Instruction No. 3, which reads as follows:

“You are instructed that if you believe, from the evidence, that any witness has testified under a fear of losing his employment, or a desire to avoid censure, or a fear of offending or a desire to please his employer, then such fact may be taken into account by the jury in determining the degree of weight which ought to be given to the testimony of such witness; and in such case the jury have a right to judge of the effect, if any, likely to be produced upon the human mind by such feelings or motives, and how far such feelings or motives, on the part of a witness, may tend to warp his judgment or prevent the truth; and the jury, after applying their own knowledge of human nature, and of the philosophy of the human mind, to the investigation of the subject, are to judge of the weight which ought to be given to the testimony of such witness, taking the same in connection with all the other evidence in the case.”

Defendant cites no authority to support her contention. However, the Court did give an instruction in usual form on credibility of the witnesses, which reads as follows :

“ * * * You are further instructed that you are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight you may take into consideration the demeanor of the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling towards the defendant or any other witness testifying in the case, and the probability or improbability of his or her statements, as well as all the facts and circumstances given in evidence. In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any material fact, you shall reject all or any portion of such witness’s testimony which you believe to be untrue.”

A similar instruction to the instruction here given by the court was approved in State v. Turner, Mo., 320 S.W.2d 579, 585. To a great extent the giving of instructions on the credibility of witnesses lies within the discretion of the trial court, State v. Hart, 331 Mo. 650, 56 S.W.2d 592. The court here gave a proper instruction on credibility of the witnesses and properly refused defendant’s Instruction No. 3 as it tended to single out the State’s witnesses for particular scrutiny. Defendant’s contention is denied.

Defendant, without citing any authority, contends that the trial court committed error in failing to reprimand counsel for the State and to declare a mistrial during final arguments when the prosecutor stated that defendant was the mother of two illegitimate children while referring to her credibility as a witness.

The record reveals that defendant testified on cross-examination, without objection, that she was the mother of two illegitimate children by two different men.

It has been held that: “A prosecuting attorney has the right to comment on the evidence and the credibility of the witnesses from the State’s standpoint, and whether such comments are prejudicial in any instance rests largely within the sound discretion of the trial court.” State v. Brooks, Mo.App., 298 S.W.2d 511, 515. In the case of State v. Brock, Mo., 273 S.W.2d 166, 168 it was stated: “‘Can appellant, during the progress of the trial, permit testimony to be introduced without objection, and then complain that the prosecuting attorney improperly based remarks upon it? The proper and only time to make the test as to the admissibility of testimony is at the time it is offered. We are unwilling to sanction the practice, conceding that incompetent evidence was introduced, of allowing the testimony to go to the jury, and wait until counsel in his closing argument proceeds to comment upon it, before interposing objections to it/ While we would not say that no comment that might be made in argument on incompetent evidence, admitted without objection, or on evidence properly admitted for a limited purpose, could be prejudicial, we do say that the State may have some right of comment on such evidence.” It is concluded that the trial court did not abuse its discretion in refusing to grant a mistrial.

Defendant alleges error in that the assistant prosecuting attorney, who tried the case, permitted testimony to be given by Marie Asbille, a witness for the State which he knew was perjured, thus denying defendant a fair trial. Defendant raised this point in her Motion for New Trial and attached an affidavit of defendant’s attorney to the motion which in substance stated that on May 29, 1963, (the day the verdict was rendered) the assistant prosecuting attorney stated to defendant’s attorney that “I knew Marie Asbille was lying when she testified that she saw defendant Olivia Pennington put lipstick on the bag.” Defendant cites V.A.M.R. 78.01 as requiring the trial court to ascertain whether or not perjury was committed which affected the outcome of the trial and cites the cases of Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519 and Ridge v. Johnson, 129 Mo.App. 541, 107 S.W. 1103. These authorities deal with the question of whether perjury affected the outcome of the trial in civil cases.

In criminal cases the principle has been laid down by the Supreme Court of the United States that the constitutional requirement of due process is not satisfied where a conviction is obtained by the presentation of testimony known by the prosecuting authorities to be perjured. Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. It would therefore appear that when the point is raised as it is in this case, the trial court has the function of a trier of fact and his discretion is limited only by the rule that it must not arbitrarily be exercised but must rest on a reasonable foundation of fact. State v. Baker, Mo., 277 S.W.2d 627, 631; State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 123. Here it was incumbent upon the trial court to determine (1) whether perjured testimony was given by a State’s witness, (2) that such testimony was known by the prosecuting attorney to be false and (3) that he permitted the testimony to go uncorrected. Napue v. People of State of Illinois, supra.

The record of the State’s evidence reveals that witness Asbille did testify that she saw defendant place a lipstick mark on the handbag. This testimony was corroborated by another State’s witness, Garfield Eg-gleston, who testified that he heard a police officer say, “Don’t mark that with lipstick.” and thereupon witness Eggleston examined defendant’s handbag and there was a mark of lipstick on the side of the bag.

The trial court could and apparently did find as a fact that witness Asbille’s testimony as corroborated by the testimony of Eggleston was not perjured or false and that the alleged statement of the assistant prosecuting attorney could only have been an expression of opinion or conclusion as to the testimony of witness Asbille made without careful consideration of all the testimony presented by the State. The record supports such a finding and it is concluded that the trial court acted within the proper limits of its discretion in overruling the defendant’s Motion for New Trial on this point.

The judgment of the trial court is affirmed.

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


author: RUARK, Presiding Judge.

text:
    E. P. BULLOCK, Plaintiff-Appellant, v. BENJAMIN MOORE AND COMPANY, a corporation, Defendant-Respondent.
    No. 8421.
    Springfield Court of Appeals. Missouri.
    May 22, 1965.
    Rehearing Denied June 8, 1965.

      James E. Reeves, of Ward & Reeves, Caruthersville, for plaintiff-appellant.
    David E. Blanton, of Blanton, Blanton & Rice, Sikeston, for defendant-respondent.
   RUARK, Presiding Judge.

This is an appeal by plaintiff from a verdict-based judgment for defendant-respondent in a suit involving personal injuries in the form of burns which resulted from the explosion of can of paint.

The pleadings: Count I, upon which plaintiff submitted, was based on implied warranty. It alleged that plaintiff purchased two sealed gallon cans of outside white paint from a local supply company. Such paint was manufactured by the defendant and placed for sale with the implied warranty that it was fit and proper for use, but that such implied warranty “was false and untrue and that said paint was unsound and unsuitable for painting and was in fact highly volatile and inflamable”; that the cans exploded and sprayed flaming paint upon plaintiff’s body, causing the personal injuries complained of. Defendant’s answer included, among other things, contributory negligence and assumption of risk.

The evidence: Plaintiff, who was a farmer but had previously had about three years’ experience in a general country store which sold paint among other things, bought two one-gallon cans of outside white with sealed covers, a gallon of thinner and one quart of enamel. These were placed in a carton and put in the back of his pickup truck. This was on a clear but windy May 3rd, with temperature about eighty degrees. There was no fire around the paint. He parked his truck in the driveway about fifty feet from his house and about thirty feet from a smaller building where he went to clean his brushes. While he was so cleaning brushes, one of the cans of outside white exploded and the lid fell close to where he was standing. The carton caught, or was, afire. Plaintiff seized a spade and ran to the side of the truck, intending, as he said, “to put it out for my house was right there by it, and of course my truck, I wanted to save it.” At that time the fire was inside the carton, and the outside of the carton was not yet afire. While plaintiff was at the side of the truck, the jug of paint thinner exploded. Plaintiff took the spade and, apparently reaching over the side, attempted to “swipe” the carton out of the rear end of the truck (the tailgate was down). This being unsuccessful, he ran around to the rear of the truck and put one leg up on the tailgate — “I started to kind of get up in the truck” — in order to swipe out the carton. At that time the second can of outside white exploded and threw burning paint against plaintiff’s leg. On cross-examination he testified:

“Q. So your purpose of going over there was, as a matter of fact, not to safeguard life, your life, or your person, but to safeguard personal property, isn’t that correct?
“A. That is right. I didn’t, think it would amount to too much when I tried to put it out, you know, but it was worse than what I thought it was.”

On behalf of defendant, the Court gave Instruction No. 6 which is as follows:

“The Court instructs the jury that if you find and believe from the evidence that at the time the plaintiff parked the pick-up truck referred to in the evidence in the driveway of the house where he lived, that there was contained in the back end of said pick-up truck a paper or cardboard paint box containing, among other things, paint and thinner, and that after parking said truck as aforesaid the plaintiff was some distance away from said truck and that a fire occurred in the back end of said pick-up truck and that the plaintiff’s attention to said fire in said truck was caused by a noise, and by the top of a paint can being thrown into the air and landing in the area where the said plaintiff was then and there standing, and that the plaintiff was then and there in a place of reasonable safety with reference to said truck and the fire therein, and that thereafter the plaintiff approached in close proximity to said truck and the fire burning therein, for the purpose of extinguishing said fire and thereby protecting said pick-up truck and other property, if you so find, and that the plaintiff saw, or knew, or by the exercise of ordinary care, should have seen or known that there was danger of fire and explosion of the other substances and contents of said pick-up truck, if you so find, and if you further find that the plaintiff thereafter attempted to climb into the bed of said truck for the purpose of subduing said fire and removing the burning substance from said pick-up truck, and that there was then an explosion in the pick-up truck and that as a result of said explosion a burning substance was sprayed upon the plaintiff, directly resulting in burns and injuries to the said plaintiff, then you are further instructed that the plaintiff assume[d] the risk of said burns and injuries, and your verdict will be in favor of the defendant and against the plaintiff.”

Plaintiff contends that is practically a peremptory instruction for the defendant since it hypothesizes the facts of plaintiff’s case; that such instruction (a) does not require a finding that plaintiff’s conduct was voluntary, (b) does not require a finding of knowledge (c) does not relate plaintiff’s conduct to any standard of care or require a finding that he acted unreasonably. He contends that the evidence showed that plaintiff was confronted with a choice of attempting to protect his property from destruction due to defendant’s tortious conduct and that his conduct was reasonably necessary and therefore not voluntary. Defendant-respondent contends the instruction was proper because (1) defendant was entitled to a directed verdict because plaintiff left a place of safety and entered an area of apparent danger for the sole purpose of protecting personal property, (2) plaintiff assumed the risk in so doing, (3) there was no issue as to whether plaintiff’s conduct was “voluntary,” (4) the instruction submitted the question of knowledge and exercise of reasonable care.

It is our view that defendant’s Instruction No. 6 was insufficient because it did not fairly submit the question of whether plaintiff was in the exercise of ordinary care in entering upon the course of conduct which he did enter upon.

We will not compound the confusion surrounding the doctrine of assumption of risk, or of “incurred risk,” by attempting to wade through the various distinctions and definitions or by considering whether or not (except perhaps for risks expressly assumed) there is any further need in the law of Missouri for doctrine.

Assumption of risk is based upon consent, assent, or “waiver” of the results coming from the plaintiff’s conduct in entering into the place of peril, or upon the course of chosen conduct. Such being the case, this consent must be (a) voluntary, and (b) with knowledge, comprehension, or “appreciation” of the risks involved. 65 C.J.S. Negligence, § 174, p. 848 et seq.; 38 Am. Jur. Negligence, § 173, p. 847; Terry v. Boss Hotels, Inc., Mo., 376 S.W.2d 239; Fletcher v. Kemp, Mo., 327 S.W.2d 178, 183, 186. Where plaintiff claims the defendant owes plaintiiff an affirmative duty and a wrong is done in violation of that duty, and as a consequence of that wrong and as a choice of alternatives the plaintiff enters upon a course of conduct which involves a danger, the end product may be what some writers refer to as assumption of risk in the “secondary sense.” In such situation there is considerable controversy and conflict as to whether the conduct of the plaintiff is really contributory negligence. It is said that it is a “phase” of contributory negligence. It is also said that contributory negligence and assumption of risk overlap at this point. But irrespective of doctrinal nomenclature, all authorities hold that the plaintiff’s conduct in respect to "voluntariness“ and “appreciation” of the risk is to be judged by the standard of that of a reasonably prudent person exercising ordinary care for his own safety under the circumstances existing at the time. 65 C.J.S. Negligence, § 174, p. 851, and citations supra. Respondent recognized the reasonable-person theory by requiring a finding that plaintiff knew “or by the exercise of ordinary care should have seen and known” the danger of explosion. This is the general rule which is applied in contributory negligence cases. See Fields v. Kansas City, Mo., 383 S.W.2d 543, 547, and cases cited.

The voluntary choice above referred to means one made with freedom of will, with “more or less deliberation” (82 A.L.R.2d, Annot., p. 1233), and the “volun-tariness” and appreciation of dangers involved in making that choice are somewhat related and interdependent; both involve the exercise of mental processes. The reasonable person when confronted with an emergency not of his own making, or the necessity of making a sudden decision, has less opportunity to “deliberate” in order to determine what course of action he should (or should not) follow and, in some instances at least, less opportunity to comprehend and “appreciate” the risk which he faces. 65 C.J.S. Negligence, § 17, p. 408, 412; McCallum v. Executive Aircraft Co., Mo.App., 291 S.W.2d 650, 654; Mayne v. May Stern Furniture Co., Mo.App., 21 S.W.2d 211, 213; Wilson v. United Rys. Co. of St. Louis, Mo., 181 S.W. 19, 20; see Miner v. Connecticut River R. Co., 153 Mass. 398, 26 N.E. 994; Hercules Powder Co. v. Crawford (8th Cir.) 163 F.2d 968. There is also the matter of compulsion or inducement (as affecting voluntariness) where one is confronted with the choice of preserving a right or of saving property. The respondent has cited four cases which say in substance that generally a person is not excused from the consequences of his own acts in exposing himself to the danger of injury for the mere purpose of saving personal property. With this general statement we have no quarrel, but it seems to us that if we are to judge the mental processes of a person in regard to making a free and “more or less deliberate choice” with knowledge and appreciation, the “voluntariness” of a reasonably prudent person might be influenced, and to some extent measured by, the enormity of the threatened loss in comparison with the degree of risk involved, especially in the exigencies of an emergency. (See Slinkard v. Lamb Const. Co., Mo.App., 212 S.W. 61, affirmed 225 S.W. 352; Hill v. East St. Louis Cotton Oil Co., 202 Mo.App. 478, 214 S.W. 419.) If the danger is so apparent that a reasonable person would and should have seen it and recognized it, then we doubt that plaintiff will be heard to say that he did not recognize or appreciate it. For what one knows and what one should know are equivalent in the law. Cooley on Torts (3rd Ed.) Vol. II, § 1042, p. 1048; Arnold v. May Department Stores Co., 337 Mo. 727, 85 S.W.2d 748, 753.

But what was the risk assumed? One is not ordinarily required to assume in advance the risk of another’s wrongful act which he has no opportunity to anticipate. Hathaway v. Evans, Mo.App., 235 S.W.2d 407(8); McCormick v. Lowe & Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.2d 866. And one has the right to rely upon a warranty or representations until common sense tells him he cannot (see Humbyrd v. Spurlock, Mo.App., 345 S.W.2d 499, 502, and cases at Footnote 6). The plaintiff had the right to assume the outside white paint was fit for ordinary use (and did not have a tendency to explode) until he should have known better. The explosion of one can would advise him that that can was not fit and was explosive; to a lesser degree he would have cause for apprehension as to whether all of defendant’s outside white paint would explode. The real risk assumed, however, was not the fact of another possible explosion as such, but the risk that it would be of such nature as to cause injury to the plaintiff in the circumstances here related.

To be charged with assumption of risk, one must not only know the facts which create the danger but must comprehend and appreciate the danger itself. Prosser, Law of Torts, Hornbook Series (2d Ed.), p. 309; Humbyrd v. Spurlock, supra, 345 S.W.2d 499, 503, and cases at Footnote 10. And one’s knowledge of a general condition from which the danger arose does not necessarily constitute knowledge and appreciation of the danger of injury. Gitterman v. Danella, Mo., 356 S.W.2d 52, 54-55; Russo v. Garrison, Mo.App., 357 S.W.2d 257, 260. The mere knowledge of the fact that an injury might result without appreciation of the risk to which his conduct exposed him is not sufficient. Hosford v. Clark, Mo.App., 359 S.W.2d 424, and cases at 428. Assume that plaintiff knew there was the likelihood of explosion of the second can. It does not necessarily follow as a matter of law that a reasonably prudent person in the exercise of ordinary care for his own safety would be bound to know that the result of a second explosion would likely be some injury to himself if he were near the truck. To illustrate: Let us suppose that, instead of a can of outside white paint, the object was a child’s small firecracker. We would assume that the average person should be taken to know the firecracker would explode and throw sparks, but we would hesitate to say that plaintiff is to be charged with knowledge as a matter of law that such explosion would injure him if he were in the vicinity. The opposite extreme would be a box of dynamite. There it would probably be “glaringly apparent.” The whole thing is somewhat a matter of degree (not of negligence, but of reasonable comprehension) ; and the question of voluntariness and apprehension of the ultimate danger, that of injury to the person, involves something concerning which reasonable men might disagree. See Brandt v. Thompson, Mo., 252 S.W.2d 339; Beckett v. Kiepe, Mo.App., 369 S.W.2d 258.

In Bartels v. Continental Oil Co., Mo., 384 S.W.2d 667, a fireman at a burning bulk storage plant was injured by an exploding fuel tank which, unknown to him, was improperly vented. It was held that an instruction submitting ordinary care for his own safety was required. In Lee v. Missouri Pac. Ry. Co., 195 Mo. 400, 92 S.W. 614, 621, an instruction which hypothesized the unblocked guard rails, the knowledge of such; and the experience of the injured person in regard to the dangerous condition, but omitted the question of whether he might have reasonably hoped to avoid ’injury by the exercise of ordinary care, was held deficient.

We think it was for the jury to determine whether or not the plaintiff was to be charged with knowing and “appreciating” that he would likely be injured by an explosion of the second can of paint, and thus whether or not he exercised ordinary care in going out to the truck in the circumstances here related. But the jury was not given the opportunity to pass on that question. The instruction hypothesizes the situation, the fire and the first explosion, and the danger of another explosion, and directs a verdict. It condemns plaintiff’s case if he knew or should have known these facts; it does not give the jury the privilege of determining the question of whether or not, on these conceded facts, the plaintiff was in the exercise of reasonable care in entering upon the course which he followed. For that reason we think the instruction is insufficient and that the judgment should be reversed and the cause remanded. So ordered.

STONE and HOGAN, JJ., concur.

      . Those interested might examine 82 A.L.R.2d Annot., 1218 et seq., and discussion in Halepeska v. Callihan Interests, Inc. (Tex.) 371 S.W.2d 368.

      . Harper and James, The Law of Torts, Vol. 2, § 21.1, p. 1162 et seq.; 82 A.L.R.2d Annot, § 6, p. 1238, § 9, p. 1248; Saporito v. Holland-America Lines (3rd Cir.) 284 F.2d 761, 764; Meistrich v. Casino Arena Attractions, 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208.

      .Restatement, Torts, § 893(c), p. 494; Prosser, Law of Torts (2d Ed.), § 55, p. 304; 65 C.J.S. Negligence, § 117, p. 709-710; See White v. MeVickers, 216 Iowa 90, 246 N.W. 385-386; Bull S.S. Line v. Fisher, Md., 196 Md. 519, 77 A.2d 142; McGeever v. O’Byrne, 203 Ala. 266, 82 So. 508, 511.

      . McManamee v. Missouri Pac. Ry. Co., 135 Mo. 440, 37 S.W. 119; Gwaltney v. Kansas City So. Ry. Co., 339 Mo. 249, 96 S.W.2d 357; Eversole v. Wabash R. Co., 249 Mo. 523, 155 S.W.2d 419; Logan v. Wabash Ry. Co., 96 Mo.App. 461, 70 S.W. 734; see also Ellmaker v. Goodyear Tire & Rubber Co., Mo.App., 372 S.W.2d 650, 657.


author: SPERRY, Commissioner.

text:
    Mrs. Irwin WITT, Plaintiff-Respondent, v. The KROGER COMPANY, a Corporation, and Dana Loveland, Defendants-Appellants.
    No. 24098.
    Kansas City Court of Appeals. Missouri.
    May 24, 1965.

      Michael J. Bogutski, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for appellants.
    Lathrop, Righter, Gordon & Parker, by Joseph E. Stevens, Jr., Irvine O. Hockaday, Jr., Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, a resident of Jackson County, sued The Kroger Company, a Corporation engaged in the merchandising business, and Dana Loveland, co-manager of its store located at Truman Corners, in Grandview, Jackson County, Missouri. The action is for damages growing out of malicious prosecution. From a judgment for plaintiff in the amount of Two Thousand Dollars ($2,000.00), for compensatory damages, and for Three Thousand Dollars ($3,000.00) for punitive damages, defendants appeal.

We will state the pertinent facts as concisely as we can, having in mind the legal questions presented by defendant.

There is evidence to the effect that, about 7:00 P.M., September 21st, 1961, the Grandview police department received a call to come to the Kroger Store at Truman Corners. Two officers proceeded to the store. Sgt. Couch stated that they were met by defendant Loveland. However, the witness was probably mistaken as to it being Mr. Loveland, because Loveland testified that he was not there at that time but that Mr. Cochran, the other co-manager, was in charge. Mr. Cochran did not testify, so it may be inferred that Loveland’s version is correct. The manager in charge informed the witness that a woman by the name of Wilson cashed a forged check, which check was exhibited to the officer; that he, the manager stated that he suspected that the check was bad and confronted her; that she denied being Mrs. Wilson, whose name was on the bad check; that he had checked at the address given on the check and that the party signing the check was unknown there; that a store employee was then watching a car in the lot, to which the suspect had gone. The witness then stated that the officers observed this car; that a man and woman entered it and drove out of the lot; that he obtained the license number which, it was learned, had been issued to plaintiff and her husband; that this information, as to the license, was given to the store manager in charge; that, several days later, witness was given a warrant to serve on plaintiff; that he was also given a picture of Mrs. Wilson, who cashed the check; that he proceeded to plaintiff’s home where the warrant was served on her; that she had to change from night dress into street clothing in order to go with him; that the picture bore a faint resemblance to plaintiff but that witness did not think it was her picture ; that plaintiff was taken to the Grand-view police station; that Mr. Cochran, Kroger Store manager, was called and came to the station after thirty or forty minutes; that Mr. Cochran stated that plaintiff was not the person who had cashed the bad check; that plaintiff was released.

Officer Couch stated that, some three or more days after his first trip to the store, he had a telephone conversation with Mr. Loveland, who stated that they, at the store, were certain that the picture above mentioned was one of plaintiff, who had been followed to her car by the store employees on the night that the check was cashed.

It was shown that Mr. Loveland went to the office of the Magistrate where he signed a complaint against plaintiff, upon which the warrant was issued. No complaint was ever signed by the Prosecuting Attorney, or by any of his assistants, but the warrant was issued and signed by the Clerk of the court of Magistrate Davis, in that office, at Grandview.

Mr. Raupp who, on September 28th, 1961, was clerk of the Seventh District Magistrate Court, which meets at Grandview, stated to the effect that he was called to the court room at about 9:00 P.M.; that Mr. Loveland and others were present; that witness drew a complaint on a bad check charge; that he put on the complaint and on the warrant the information that those instruments contained; that he obtained same from the Chief of police, who was present, or from Mr. Loveland, either or both; that the complaint, as completed, was signed by Mr. Loveland.

It was shown that a check had been issued to plaintiff by Jones Store Company, and by her cashed at the Kroger Company store on September 21st, 1961, and that this check was paid by the bank upon which it was drawn two days before the warrant herein was issued.

Mr. Loveland testified to the effect that he was “co-manager” of the Kroger store at Truman Corners during the week of September 21st to September 28th, 1961; that Mr. Cochran was manager; that witness left the store on September 21st, at about 5:30 P.M.; that he was not at the store at 7:30 P.M. on that day; that he drove to the store that night, at about 9:15 P.M., which was after closing time, and saw and talked with Mr. Cochran who was on duty; that Mr. Cochran told him that he thought that the store had been given a bad check; that he requested witness to call and verify whether it was or wasn’t, the next morning; that he learned that the check in question, issued by Mosher Williams Company, was bogus; that another store had received a similar check and had obtained a picture of the party who passed it; that the manager of the store brought the picture to the Kroger store and gave it to Mr. Cochran; that witness delivered the picture to the Chief of police at Grandview, at the Kroger Store; that, at about 9:00 P.M., September 28th, he went to the Magistrate Court building at Grandview and signed a complaint against plaintiff so that a warrant co.uld be issued.

From the evidence before it the jury could have believed that this prosecution was instigated and procured by Mr. Cochran and Mr. Loveland, co-managers of the Kroger Company store involved here. There was evidence to the effect that Mr. Cochran, who was in charge of the store on the night of September 21st, confronted plaintiff regarding the “Wilson” check; that she denied that she was the Mary Wilson, payee thereon; that Kroger employees watched plaintiff when she went to her car; that they kept her car under surveillance and called the police; that when the officers arrived the manager (Cochran) told them that he believed that plaintiff, whose car he pointed out to the police, had passed a bad check; that police took the license number, learned that it was issued to plaintiff and her husband, and so informed the manager; that the manager, Cochran, checked and learned that Mary Wilson was unknown at the address given on the bogus check, and so informed the police; that Mr. Cochran obtained a picture of the woman who passed a similar bogus check at another store and gave it to Loveland, who delivered it to the police, at the store, and told them that the Kroger people believed it to be a picture of plaintiff; that Mr. Love-land signed a complaint against plaintiff, naming her therein on a bad check charge so that a warrant could be issued thereon; that she was arrested, late at night, and detained for an hour or more; that Mr. Cochran was called to identify her and stated that she was not the woman who passed the check; that the check cashed by plaintiff the night of September 21st had been paid by the bank upon which it was drawn on September 26th, two days before the complaint was signed; and that plaintiff was of excellent character and had never been charged with the commission of an illegal act.

Defendants says that their motion for directed verdict should have been sustained, for the reason that malicious prosecution was not actually instituted, because the complaint upon which the warrant was issued was never signed by the Prosecuting Attorney or Assistant. They rely on Tiede v. Fuhr, 264 Mo. 622, 175 S.W. 910. The court there held, 1. c. 913:

“In malicious prosecutions * * * it must be shown that there was a 'prosecution/ which necessarily implies the employment of legal process possessing at least a measure of regularity”. (Emphasis Supplied).

The process here employed was issued by the clerk of the Magistrate Court and was legal on its face. It possessed “at least a measure of regularity”.

In Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650 the court considered a case where the arrest was made under a void warrant. The court (663), said that the defect was immaterial because “a bad indictment may serve all the purposes of malice as well as a good one”, and that the injury to plaintiff may be as great in the one case as in the other.

Defendants also contend that the motion to dismiss should have been sustained because there was no evidence tending to prove that Loveland was acting as Kroger’s agent in commencing the action, or that he was authoriaed to act. Kroger had two manager employees. Loveland said that he was co-manager. But, if he was only the assistant manager, then Cochran was the manager. The evidence is that Cochran and Loveland acted jointly in this affair. They were the only representatives of Kroger who were shown as having any authority at this store. Kroger could only act through its agents. These men were in charge of its business at all times here involved, and they were acting together, jointly. That was the undisputed evidence. There was substantial evidence from which a reasonable person could believe that Loveland was the agent of Kroger in all his actions in this incident.

Defendants say that plaintiff’s instruction No. 1 is prejudicially erroneous in that, by it, the jury was told that as a matter of law the act of Loveland was the act of Kroger. The jury was required to find that both defendants caused the arrest, and required sufficient findings of fact to be made so as to justify the finding of a verdict for plaintiff, if such facts were found to be true. The instruction is not subject to the criticism made.

Instructions Nos. 2 and 4 are criticised on the grounds that “they likewise assumed the controverted fact of agency”. The criticism is rejected.

Defendants contend that the court erred in submitting the issue of punitive damages because more than one defendant was sued. It is conceded by plaintiff that where the submission of a malicious prosecution case is as to two or more defendants it is error to receive evidence of or to instruct on the financial worth of either of the defendants. This court so held in the case of Thomas v. Durham Motors, Inc., et al., Mo.App., 389 S.W.2d 412 (handed down concurrently herewith).

However, in the case at bar, no evidence of financial worth was offered or received, and no instruction given on that issue. This rule does not prevent the recovery of punitive damages in all cases where several defendants are joined. Washington Gas Light Company v. Lansden, 172 U.S. 534, 553, 19 S.Ct. 296, 303, 43 L.Ed. 543. In effect, that was our ruling in Thomas v. Durham Motors, Inc., et al., supra.

Defendants contend that the award of damages was excessive under the unusual facts in this case. The facts are disclosed by the record, have been fully discussed. Plaintiff’s age, physical condition, and her good reputation were known to the jury. The court, in Huff staffer v. Coats (Mo.) 335 S.W.2d 70, 82, quoted approvingly as follows:

“ ‘The law concedes a wide latitude of discretion to the jury in actions of this class * * *. Numerous considerations must necessarily enter into the question of what is just compensation in such a case, but no definite rule can be laid down as to any of them. The law has provided that the jury shall decide this question. Disgrace is a relative term. What is such to one man is not necessarily so to another; and, while it applies to each, its effect or measure is great or small as other conditions exist. Mental anxiety and pain caused thereby, and humiliation and danger from a prosecution for a grave criminal offense, are all conditions for the jury, as well as the jeopardy in which the liberty of the plaintiff was placed by such prosecution.’
“Applying the above-stated criteria to the facts in this case and taking into account the facts that an able trial judge considered and rejected defendant’s same contention as to excessiveness, we are of the opinion that we should not interfere with the amount of the judgment”.

The trial court denied the motion for new trial wherein it was alleged that the verdict was excessive. The amount of the verdict is not such as to shock the judicial conscience and it is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, G, is adopted as the opinion of the Court.

All concur.


author: HOGAN, Judge.

text:
    Elizabeth HART, Plaintiff-Respondent, v. Art WOOD, Administrator of the Estate of Lucy Ann Louise James, Defendant-Appellant.
    No. 8330.
    Springfield Court of Appeals. Missouri.
    May 27, 1965.
    Rehearing Denied June 22, 1965.

      John A. Honssinger, Lebanon, Claude T. Wood, Richland, for defendant-appellant.
    J. W. Grossenheider, Lebanon, for plaintiff-respondent.
   HOGAN, Judge.

In this case, the respondent claimant sought to recover the sum of $1,000.00 for services rendered to Lucy Ann Louise James, deceased, during a three-year period from the fall of 1956 to September 1959. The claim was originally filed in probate court and was transferred to circuit court for a jury trial under the provisions of Section 473.420, par. 2. The jury awarded the claimant the sum of $400.00, and the defendant administrator has appealed.

Miss James was a single woman of advanced years who, during the period in question, lived alone on a small farm near Lebanon in Laclede County, Missouri. Mrs. Hart, the claimant, is a member of the Sutherland family, whose home is only a short distance from Miss James’ farm. During the time with which we are concerned, the claimant’s brother, Mr. James Sutherland, and her sister, Mrs. Elsie Crall, lived with their father at the Sutherland home. The claimant did not live there, although she lived in the neighborhood. This case actually represents but one aspect of a claim originally made jointly by the claimant, her brother and her sister. The Suther-lands were not related to Miss James though, as might be expected, a number of the members of the community were related to the decedent in one degree or another, including the wife of the appellant administrator. It should also be noted that subsequent to the period here involved, Miss James became ill and was declared incompetent. During the period from September 8, 1959, to the date of Miss James’ death on November 24, 1960, Mrs. Hart served as Miss James’ guardian, and this claim was filed after Mr. Wood had qualified as administrator of Miss James’ estate.

A considerable amount of proof was adduced by both parties upon the trial of this case, and on many points the evidence is in spirited conflict. However, in determining whether the claimant made a submissible case, we must review the proof in the light most favorable to the claimant, considering all factual inferences which a jury might reasonably have drawn and setting aside all evidence unfavorable to the result reached. Ashley v. Williams, 365 Mo. 286, 290, 281 S.W.2d 875, 877-878 [1]; Allmon v. Allmon, Mo.App., 314 S.W.2d 457, 459 [1]. So considered, there is substantial evidence that in 1956 Miss James returned to her farm home from a boarding or rooming house where she had been staying; at that time she was approximately 72 years old and was physically, and possibly mentally, unable to care for herself and attend to her elementary needs. In the language of one witness, “she wasn’t able to do nothing, or stay by herself,” and in the words of another, she was unable to care for herself because she was “feeble-minded.”

The Sutherland family, consisting at the time of the claimant’s sister, brother and father, lived nearby, approximately one-fourth mile from Miss James. Thé claimant did not live in this house but was frequently there. The basis of the claim is that the three members of the Sutherland family cooked, washed, ironed, and provided other personal services for Miss James from the fall of 1956 to September 1959, before Miss James contracted her terminal illness, and indeed the claimant’s evidence indicates that during that period Miss James became almost completely dependent upon the Sutherland family.

The claimant’s proof was that Miss James would telephone one or another member of the Sutherland family several times daily asking to be assisted with some household chore, or asking that some errand be run. Several nights a week, the decedent would call at the Sutherland'home, “a lot of times * * * while we was eating supper,” and would remain until about 10:00 P.M. Sometimes she would spend several consecutive nights at the Sutherland home, and on other occasions she would call during the day.

Miss James owned no automobile and was unable to drive. When she had business to transact in town, either the claimant or some member of her family would, at her request, transport her to town to attend to her business. The claimant’s evidence was that the nearest grocery store was six miles away. The decedent bought groceries in small quantities, and “two or three times a week” Mrs. Hart would either drive the claimant to the grocery store or purchase and deliver Miss James’ groceries for her while the claimant was purchasing her own. Miss James cooked and heated her home with a wood stove, but she was unable to cut or carry her wood, and as a consequence Mrs. Hart and the other Suth-erlands were obliged to see that the decedent was provided with fuel, and quite often were required to prepare her meals for her.

Other services rendered to Miss James by the claimant were of a very personal nature. Though there is, as we say, evidence to the contrary, the claimant’s proof was that Miss James was slovenly, unkempt, and dirty much of the time, and indeed one witness testified that she was sometimes covered with vermin. Mrs. Hart (and sometimes Mrs. Crall) bathed Miss James, pared her toenails, and shampooed her hair in order to keep her clean, and either one or the other regularly washed and ironed Miss James’ clothing. The claimant’s evidence was that all these services were rendered at Miss James’ request. This is, in a general way, the substance of the claimant’s case, but other facts will be more specifically noted in the course of the opinion.

The appellant’s first point, which he makes rather indirectly, is that the claimant made no submissible case as to her claim for transportation furnished because she made no proof of the value of those services. Relying heavily upon our ruling in Allmon v. Allmon, supra, 314 S.W.2d at 463-464 [11] [12, 13], the appellant has painstakingly and rather elaborately drawn a factual parallel between this case and the Alimón case, arguing that the evidence furnishes no guide whatever for the jury to determine the distances involved, the mode of transportation used nor the expenses incurred on the trips, and that there is no evidence whatever of the reasonable value of the transportation furnished. The respondent answers this point by saying that the services rendered were such that their reasonable value was a matter of common knowledge, and therefore it was unnecessary to prove their value.

Of course, cases of this kind sound in quantum meruit, and ordinarily it is essential for a plaintiff in quantum meruit to make proof of the reasonable value of the services rendered or the materials furnished. Williams v. Cass, Mo.App., 372 S.W.2d 156, 161 [10, 11]. An exception is made to this rule, however, where the value of the services furnished is a matter of common knowledge, Ashley v. Williams, supra, 365 Mo. at 294, 281 S.W.2d at 881 [10]; In re Hartle’s Estate, Mo.App., 236 S.W.2d 40, 41-42 [1] ; 98 C.J.S. Work and Labor, § 57, page 807, and our courts have quite often said that the value of domestic services is a matter which the jury may determine from its own knowledge without the aid of opinion evidence. Ashley v. Williams, supra, 365 Mo. at 294, 281 S.W.2d at 881 [10]; Murray v. Missouri Pac. Ry. Co., 101 Mo. 236, 240-241, 13 S.W. 817, 818 [2] ; Boyher v. Gearhart’s Estate, Mo.App., 367 S.W.2d 1, 5 [5, 6]; Wise v. Rubenstein, Mo.App., 24 S.W.2d 203, 205-206 [6].

We do not understand the appellant administrator to question these general principles. He carries his argument a step further, however, and in effect argues that since the respondent claimed compensation for furnishing transportation, as well as for the domestic services she rendered, she was obliged to make proof of the value of the transportation furnished, because that was not a matter within the common knowledge of men. We think we must reject this contention. We can readily agree that the testimony bearing on the claim for “transportation” is diffuse and somewhat indistinct, but we cannot agree that the evidence wholly fails to show the nature of the services rendered as “transportation” services, nor do we interpret Allmon v. Allmon, supra, 314 S.W.2d at 463-464 [11] [12,13], as a ruling that services of the kind here characterized as “transportation” cannot be evaluated by a jury as a matter of common knowledge.

What the respondent laid claim to, so far as “transportation” is concerned, was compensation for doing Miss James’ marketing, and on occasion providing her with a ride to “town” to attend to business or consult a physician. There was substantial evidence from which a jury could have found that it was about six miles to the nearest grocery store, and that Mrs. Hart, sometimes accompanied by another member of her family, did Miss James’ marketing “at least” once or twice weekly during the three-year period involved. There is also substantial evidence from which a jury could infer that it was about twelve miles to Lebanon, or “town,” and that Miss James rode to Lebanon with Mrs. Hart about three times a month. There is also evidence that, on occasion, Mrs. Crall would accompany the claimant and Miss James to Lebanon so that Mrs. Crall could assist Mrs. Hart in caring for the decedent.

We do not follow the appellant’s contention that the respondent’s claim must be construed as a claim for the value of transportation on a mileage, or unit cost, basis. We think the claimant’s proof is quite as readily subject to the inference, as far as “transportation” was concerned, that she sought to recover simply for the inconvenience or discommodity involved in doing the marketing and making the periodic trips to Lebanon. In other words, the claimant was seeking compensation as Miss James’ driver, companion and errand girl, rather than as the operator of a private carrier. We have the view that it was for the jury to determine whether these services in fact had any value, and that their value, if any, was a matter which the jury could appraise without the aid of opinion evidence. Lovinger v. Anglo California Nat. Bank, Cal.App., 243 P.2d 561, 567-568 [4] [5-7]; cf. Wysowatcky v. Lyons, 137 Colo. 578, 328 P.2d 576, 577. Nor do we think, as the appellant argues, that the claimant is to be penalized because her sister sometimes helped her in performing these services. The fact that the claimant was assisted by others would not necessarily deprive her services of all value. See Thrasher v. Allen Estate, Mo.App., 291 S.W.2d 630, 631. We must rule this point against the appellant.

The appellant’s next point, which is really two points, requires the recital of some additional facts. Subsequent to the period during which the claimant’s services were rendered, Miss James suffered a severe illness, brought on either by a “heart attack” or a “stroke,” and she was thereafter declared incompetent by the Probate Court of Laclede County. Mrs. Hart was appointed as guardian of her person and estate. Records of the probate court offered in evidence by the appellant (but excluded by the trial court) indicate that Mrs. Hart was appointed on September 8, 1959, after notice and a hearing, and that she qualified by filing a bond on the same day. It is, however, stipulated that no notice of the issuance of letters of guardianship, as required by Section 475.140, was ever prepared or published. We may deduce from the papers offered in evidence by the appellant that Mrs. Hart continued to act as the decedent’s guardian until Miss James’ death on November 24, 1960, and then suggested the death of her ward to the probate court.

The papers in the file offered by the appellant indicate that on November 25 the probate court made an order reciting that the death of the ward had been suggested, further reciting that “ * * * the Court not knowing of any debts being left by the deceased for which the estate would be liable,” and directing the guardian, Mrs. Hart, to pay the “funeral and burial expenses and inheritance and estate taxes * * * for which the estate * * * would be liable * * * ” and thereafter to file a final settlement. On December 1,1960, the guardian filed a settlement showing the payment of various items totaling $2,065.13. The settlement filed shows on its face, among other things, that the ward’s estate was insufficient to pay all the claims against it. It appears to be the only settlement filed by Mrs. Hart during the entire period of her guardianship, and on the reverse side of the paper it is recited that the settlement has been “examined, approved and filed.” No offer was made of any of the records of the probate court which are required by Section 472.280 to be kept, and although counsel referred to a final order discharging the guardian, it was not offered. It does not appear from the records offered that any notice was given of the settlement filed, if indeed it was a final settlement.

On the basis of the contents of this file, and the inferences he maintains may be drawn from it, the appellant asserts that the claimant’s action was barred by limitation, because Section 475.210 bars fully matured claims against the estate of an incompetent after nine months, and the claim here asserted had fully accrued before the institution of the guardianship. In this connection, the administrator argues that even though no notice of the issuance of letters of guardianship was given, the claimant had personal knowledge of her own claim, and, in appellant’s words, she should not be allowed to take advantage of her own neglect to give the required statutory notice to creditors. The appellant further maintains that since it had been found that there were no claims outstanding against the estate, there has been a former adjudication that the respondent has no claim and that she is barred from recovery here by the doctrine of res judicata.

Conceding a certain force to the appellant’s arguments, we think his points cannot be sustained. The tenor and suggestion of his argument that the claim is barred by limitation is that respondent’s claim accrued before the commencement of the guardianship on September 8, 1959, and was therefore barred by Section 475.210, which is a statute of non-claim barring claims against the estate of an incompetent (except claims for taxes and contingent claims) based on liabilities arising prior to the guardianship if they are not filed nine months after the first insertion of publication of notice of the letters of guardianship. The respondent claimant answers that no notice of the issuance of letters was ever published to set Section 475.210 in motion, and this is admitted. The appellant rejoins, however, that the claimant, having been the guardian, and having had knowledge of her own claim, cannot now take advantage of her own neglect to give the statutory notice.

It is unnecessary to construe the statutes involved here at length, or to trace their past legislative history. Assuming that Section 475.140, which provides for notice of letters of guardianship, serves the same general purpose as its predecessor, publication is required so creditors may be notified to present their demands or be barred, 2 Woerner, American Law of Administration, Section 385, page 1242 (3rd ed. 1923), and publication of notice is required to start the running of the statute of non-claim. Alexander v. Wyatt’s Estate, 241 Mo.App. 550, 553-554, 244 S.W.2d 121, 122 [1,2]; II Limbaugh, Missouri Practice, Section 760 (b), page 111. Actual notice is not sufficient to set the statute of non-claim running in favor of the estate. Alexander v. Wyatt’s Estate, supra, 241 Mo.App. at 553-554, 244 S.W.2d at 122 [1, 2]; Doerge v. Heimenz, 8 Mo.App. 255, 257. Had the claimant been a creditor of the class included in Section 475.210, her claim would not have been barred, for no notice was given of the issuance of letters of guardianship.

But the appellant further argues that, having failed to give the notice, the personal representative cannot now be allowed to take advantage of that neglect in enforcing a claim of her own; quite possibly when it is the duty of the personal representative to give the notice, such a principle applies. Clark v. Collins, 31 Mo. 260, 261; In re Estate of Ward, 12 Ohio Cir. Dec. 44, 50; 34 C.J.S. Executors and Administrators § 411, page 188. It does not follow, however, that Mrs. Hart was barred in this case. While the general notice section of the Probate Code of 1955, Section 472.100, par. 2, subpar. (2), as amended L. 1957, page 829, Section 1, speaks of the “ * * * person at whose instance any notice by publication is required,” Section 475.140, which seems to have been adopted as it was originally drafted, does not even require the guardian to sign the notice, but provides instead that “ * * * [t]he clerk * * * shall cause to be published * * * a notice of the appointment of the guardian”; and such materials as we have concerning the legislative history of Section 475.140 and its cognate statute relating to decedents’ estates, Section 473.033, indicate that it was the draftsman’s intention to relieve the personal representative of any duty to prepare and publish the notice. We cannot, therefore, read into Section 475.140 any duty on the part of the guardian to cause the notice to be published, in the face of plain statutory language and apparent legislative intention to the contrary. We do not say there could never be a case where the personal representative would be barred from asserting his own claim because of his inequitable neglect of duty or overreaching in delaying its presentation, but no such conduct on the claimant’s part is shown here.

Nor can we agree with appellant’s argument that there has been a former adjudication of the respondent’s claim. The real difficulty with the appellant’s position is that his theory has considerably outrun his proof. In order to establish his defenses of limitation and res judicata, the appellant offered the probate court’s file on the guardianship in evidence in toto, and his offer was refused. The appellant then resorted to the position that the trial court, since it was in effect sitting as a probate court, should take judicial notice of all that had occurred in the probate court prior to the assertion of the respondent’s claim, even though no proof was made of the record proceedings. We agree that there are instances in which the files in another cause in the same court may be received to determine if there has been a former adjudication, Arata v. Monsanto Chemical Co., Mo., 351 S.W.2d 717, 721-722 [5], but the file offered here simply leaves one in doubt as to what actually occurred in the guardianship proceeding. It may be that the probate court at first considered that Miss James’ guardianship estate could be closed under the procedure outlined in Section 475.320, par. 1, but there is no evidence of any final adjudication that “all obligations of the estate * * * [had] been paid * * * ” as required by that statute; rather the recitations of the settlement filed are to the contrary. What is more, we know that the probate court has broad powers to set aside its own orders, Section 472.150, and we know that an administrator was actually appointed for the estate of Lucy Ann Louise James, deceased, because the parties have so stipulated. Without laboring the matter, the legal conclusions to be drawn from an inspection of the files offered in evidence are, in our view, ambiguous and equivocal; one certainly could not say that there had ever been a prior adjudication of the respondent’s claim because the guardianship estate had been finally closed upon a finding that there were no claims against the estate.

As to the appellant’s further and very similar suggestion that the trial court should have taken judicial notice of all that the probate court could have noticed, we have the opinion that the appellant misjudges the circuit court’s position upon an appeal from probate court. In the first place, it would be highly unrealistic to ask the circuit judge to notice matters which actually occurred in another forum. Further, while probate matters retain their general probate character on appeal, In re Boeving, Mo.App., 388 S.W.2d 40, 49-50 [6, 7], an appeal to circuit court in a probate matter does not draw the whole record after it, Keet & Rountree Dry Goods Co. v. Williams, Mo.App., 202 S.W. 620, 622 [8, 9], nor does the circuit court acquire plenary jurisdiction over the administration of the estate; it may consider only the specific matter litigated in the probate court. In re Campbell’s Estate, 274 Mo. 343, 356, 202 S.W. 1114, 1115 [2]; Bronson v. Bronson, 102 Mo. 613, 620, 15 S.W. 74, 75 [3] ; State ex rel. Reis v. Nangle, Mo.App., 349 S.W.2d 508, 515-519 [10]. The appellant’s points must be disallowed.

The appellant’s final point deals with the claimant’s interrogation of witnesses. As we understand the appellant, he maintains that the respondent’s repeated inquiry whether Miss James’ relatives had assisted her or not was prejudicial to him, because the jury would understand that the appellant had not rendered any assistance to Miss James, when he should have done so, but that the claimant, who was not related to Miss James, did so and therefore had a worthier claim to “what she [Miss James] had left.”

We think this point is without substantial merit. When counsel objected to the course of inquiry which he now claims was prejudicial — and he did so at several points — the relief for which he moved was granted by the trial court, either by sustaining his objection or by both sustaining his objection and instructing the jury to disregard the question and answer. What is more, we do not believe a jury would necessarily conclude that the claimant’s counsel referred specifically and only to the appellant. The evidence was, in fact, that “ * * * almost all the people down there [in the neighborhood] were relatives, distant or close to her [Miss James].” As the matter is briefed and argued, we perceive no error prejudicial to the appellant.

We find no reversible error upon the record presented, and the judgment is therefore affirmed.

RUARK, P. J., and STONE, J., concur.

      . Unless otherwise noted, all references to statutes are to RSMo (1959), V.A.M.S.

      . “Seed ticks,” according to this witness, which had “turned.’

      . Which was codified in the 1949 revision as Section 458.210.

      . We acknowledge the cooperation and assistance of the General Assembly’s Committee on Legislative Research.


text:
    Charles E. MULLEN, Plaintiff-Appellant, v. CHEVROLET-KANSAS CITY DIVISION, GENERAL MOTORS CORPORATION, Defendant-Respondent.
    No. 24196.
    Kansas City Court of Appeals. Missouri.
    June 7, 1965.

      Galen Knowlton, Michael J. Drape, Knowlton & Drape, Kansas City, for appellant.
    Paul Scott Kelly, Jr., Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, for respondent.
   SPERRY, Commissioner.

This appeal is from a judgment reversing an award of $2,286.55 by the Industrial Commission, in favor of Charles E. Mullen, (whom we shall refer to as plaintiff) against Chevrolet, Kansas City Division, General Motors Corporation, (defendant), employer and self insurer.

The award was made by the referee who conducted the hearing on plaintiff’s claim, and was affirmed by a majority of the Commission, without dissent. In reviewing a case of this kind the court may not substitute its judgment on the evidence for that of the administrative tribunal. The court should decide only whether such tribunal could have reasonably made its findings and reached its result, upon consideration of all the evidence before it; and it should set aside decisions clearly contrary to the overwhelming weight of the evidence. Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626, 628.

Sec. 287.550 RSMo 1959, V.A.M.S., provides, in part, that all proceedings before the Commission shall be simple, informal, and without regard to technical rules of evidence, and no defect or irregularity therein shall invalidate the same: “ * * * [t]he very object and purpose of the entire act is that substantial rights are to be enforced at the sacrifice of procedural rights”. Ross v. Joplin Corporation, Mo.App., 229 S.W.2d 303, 309. If two different conclusions may be reached, or inferences may be drawn from claimant’s testimony, as to the ultimate fact at issue, each of such conclusions or inferences being consistent with the testimony and each inconsistent with the other, the triers of the facts must determine the issues and draw the inferences; it does not become a question of law. Sanderson v. Producers Commission Association, 360 Mo. 571, 229 S.W.2d 563, 568. The burden is on the claimant to prove causation of the injury and, in some instances, it can be proven only by medical testimony. Welker v. MFA Central Cooperative, Mo.App., 380 S.W.2d 481, 487. It is not sufficient that proof shows that the injury may have been caused by one of two events, for one only of which the employer is liable for compensation. Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W. 2d 55, 62.

With the above rules of law in mind we will proceed to state the evidentiary facts shown of record which tend to support the award.

Plaintiff had been an employee of defendant for several months when, on April 16th, 1962, he was helping another employee, working on the opposite side of the production line, to lift back onto the track of the conveyor line, a 65 model truck frame. It had slipped out of place so that it had stopped the line from moving. As he was lifting the frame, which was four feet wide and twenty feet long, weighing from five hundred to one thousand pounds, he stepped on a nut or bolt which rolled under his foot, snapping his back. He slipped and fell forward into the frame, thence to the floor. A fellow worker helped him out of the way and took his place on the line. After five or ten minutes he was able to move and went to the first aid department unassistedwhere he received, treatment. During the next two weeks he was engaged in putting washers on bolts, doing very light work. He walked with a cane which was furnished by defendant’s medical staff. About two weeks later he resumed his former employment and was lifting and pulling another truck back on the line when he felt a sharp pain as though some one had stuck a knife in his “tail”, his legs went limber, he could not stand, and he fell to the floor. Some men brought a stretcher and carried him to the first aid department where he was placed in a wheel chair and taken to Menorah Hospital, where he was examined and treated by Dr. Shechter, defendant’s physician. X-rays were taken. Dr. Shechter told him that he had suffered no injury, had no disability, and refused to treat him thereafter. He went to see, and was treated by his family physician, Dr. Miller, of Lees Summit, Missouri. He was off work three weeks. Defendant’s medical representatives told him that there was nothing wrong with him, that he was lazy and they refused to treat him in any way, and continued to so refuse or to pay him any compensation, until the date of the hearing. He did not go back to his original job from the time he went to Menorah Hospital until he was transferred to St. Louis Division of Chevrolet, September 10th, 1962. In November of 1962, he was treated in St. Louis by Dr. Cacioppo, plaintiff’s personal physician. He was hospitalized at Faith Hospital, in St. Louis, for one and one half weeks, at his own expense. Plaintiff stated that he had asked defendant for treatment a number of times, both at Kansas City and St. Louis, and that such requests were refused.

Plaintiff was off work from January 8th, 1963, until March 1st, 1963. He was off three weeks while being treated by Dr. Miller. He lost two weeks from work in November 1962. Evidence of medical expense, paid by plaintiff, was shown.

Dr. Vilmer, an Orthopedic Surgeon was appointed by the referee to examine plaintiff, testified for defendant that he found a number of pre-existing congenital abnormalities, existing prior to April 16th, 1962; that among them was a pelvic tilt; lordosis (sway back); the right leg was five eighths of an inch shorter than the left; spina bifida occulta (failure of fusion of the first sacral vertebrae of the spine); and other defects of the low back and spine. He also found muscle spasm. He stated that he found no evidence of injury or disability due to the trauma suffered by plaintiff on April 16th, 1962.

Dr. Shechter saw and examined plaintiff in August 1962, and again on April 5th, 1963. His reports thereon were introduced in evidence. He found no evidence of injury; no muscle spasm, no lordosis; no difference in the length of the legs; no pelvic tilt; no atrophy; x-rays of the spine were negative except for spina bifida oc-culta.

Dr. Shechter stated that plaintiff complained to him of pain in the low back, aggravated by lifting; needling on lifting and bending; both legs, when he is sitting, go to sleep; and he has severe headaches.

Dr. Shechter stated that, upon his examination on April 27th, 1962, he found nothing to warrant plaintiff’s complaints at that time. He stated that plaintiff had no disability; that he had a congenital defect in the low back which is of no significance; that the back was a normal one; that he had some tenderness in the lumbar-sacral region.

Dr. Overesch, a qualified orthopedic surgeon, examined plaintiff August 17th, 1962. He stated that plaintiff complained that his low back had a dull ache all of the time; that, in bending or lifting, his back hurt him more; his legs tingle and go to sleep; he walks with a limp to the right; kidneys are weaker than they were prior to injury, April 16th, 1962; that he did not have such complaints prior to his injury.

Dr. Overesch examined plaintiff on December 29th, 1962. He found muscle spasm. He also reported a pelvic tilt to the right; torsional difficulty of the right knee; an increase in lordosis; the right leg was five eighths of an inch shorter than the left; that, due to pre-existing multiple anomalies in the lumbo-sacral area, including the pelvic tilt and leg shortening, plaintiff has a 15% disability; that, added to this and due to the trauma sustained April 16th, 1962, to his low back, there is an additional permanent disability of the body as a whole, due to that trauma, of 10 to 15%. Dr. Over-esch examined plaintiff four times and reports of his findings were introduced without objection, and filed as exhibits in connection with his deposition, taken by plaintiff.

From a study of the testimony and reports of medical findings of the three Orthopedists who examined plaintiff and testified herein, Dr. Overesch alone found that plaintiff suffered permanent partial disability of from 10 to 15% as a result of the injury of April 16th, 1962. Dr. Shechter found no disability of any kind, not even due to material pre-existing congenital abnormalities. Dr. Vilmer found congenital abnormalities but no evidence of injury or disability due to the occurrence of April 16th, 1962. It was within the province of the Commission to evaluate the medical evidence in this case, and to accept and believe that version which, under all of the facts in evidence, appeared to it to reflect the true situation with respect to plaintiff’s disability, if any, and the cause of it. The award indicates acceptance of and reliance upon the testimony and the findings entered in the medical report of Dr. Overesch. The court may not disturb the Commission’s findings in this case because they are supported by substantial, competent evidence. It could have reasonably made its findings and reached its result, on the whole record.

The judgment is reversed.

MAUGHMER, C, concurs.

PER CURIAM:

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

All concur.