author: EAGER, Chief Justice.

text:
    In re Eugene W. WINES.
    No. 49236.
    Supreme Court of Missouri, In Banc.
    Sept. 9, 1963.
    Raymond F. McNally, Jr., Gerhard J. Pet-zall, St. Louis, Sp, counsel, Walter M. Clark, St. Louis, Sp. representative, for informants.
    William L. Mason, Jr., St. Louis, for respondent.
   EAGER, Chief Justice.

The Bar Committee of the Twenty-Second Judicial Circuit has filed here, by leave, an information charging Respondent Wines with professional misconduct in violation of Rules 4.15, 4.22 and 4.47, V.A.M.R. The information contains nine counts. Mr. Wines has had his office for some years in the City of St. Louis. The Bar Committee had previously held both informal and formal hearings; at the latter Respondent was present with counsel, but offered no evidence and tendered no explanations. After a finding of probable cause the Committee proceeded to file the present information. Respondent’s answer consists of a complete denial of all charges. We appointed the Honorable Paul VanOsdol, retired Commissioner of this Court, as our Special Commissioner. He held extensive hearings in St. Louis and has filed a very complete report of his findings and conclusions. These will be referred to from time to time in the course of this opinion. The Commissioner has found Respondent not guilty on all charges, but he has seen fit to caution Respondent concerning a demonstrated carelessness in transmitting factual information to others and in his use of language in the same connection. Herein the Commissioner has said: “And I presume to sternly admonish Respondent to get ‘close down’ on his facts before stating them, and to state them as clearly and accurately as he can.” In certain respects we disagree with the Commissioner’s conclusions, as indicated later.

Respondent, now approximately 37 years of age, was graduated from the Law School of St. Louis University in 1953. For a time thereafter he worked as an insurance investigator and adjuster, and then entered the law office of one Henry Stoll, probably in 1955. The record does not show whether this arrangement was, in fact, a partnership but that is immaterial. We note this because there will be reference to Stoll later. He left that association in October 1957, thereafter maintaining his own law office. All of the claims involved here were for personal injuries or property damage or both. Respondent’s counsel says that none of Mr. Wines’ clients are complaining. However, the charges do deal with information given to representatives of insurers of those persons against whom the claims were made.

In order to attain some measure of conciseness in stating the facts from this large record, we shall group Counts 2 to 8, in-elusive. In those Counts Respondent was; charged with making false representations-to insurers, as noted above. These concerned chiefly the omission or deletion of medical data in submitting a document which was labeled in each instance a “Resume.” In several of these the words “favorable for recovery,” appearing in the doctor’s “prognosis,” were omitted; in one (Count 3) there were also omitted the words, “I would not anticipate any permanent disability as a result of this injury”; in another (Count 4) the words, “The injuries appear to be soft tissue injuries.” In Count 6, involving a claim of Mr. Wines personally following the dropping of an elevator, certain words in the medical history were omitted as follows: “The car bounced some and the patient stated that his right knee buckled partially, but he did not fall to the floor, but was able to catch his weight. All of his weight was bn his right leg as his left leg was crossed over it, leaning against the back of the elevator.”

In Count 8, the original medical report stated (in part) the following history,— “While waiting there, the car behind them stopped, but a third car failed to stop and rammed into the car behind them which threw the second car into their car.” Mr. Wines’ “Resume” stated this as: “While waiting there a car failed to stop and rammed into her car,” thus eliminating the idea of a three-car accident. Each such resume was prepared by Respondent after he had received the original medical report from the doctor. The explanations tendered both by Respondent and by sundry lawyer and lawyer-claims representative witnesses for him was that the use of resumes, abstracts or summaries was a common practice in personal injury claims in St. Louis; that the title indicated that the document was not a complete or full copy, that these things were used as a device to get settlement negotiations started, and that the ordinary insurer or defense lawyer did not place full reliance upon them, but required further proof (usually the medical report) before actually con summating a settlément. Some of these witnesses testified in substance that, in their opinions, the use of such a document constituted notice that something was omitted, material or immaterial, perhaps including matters which the submitting lawyer did not wish to disclose for tactical reasons, such as the possibility of involving the doctor later in a complicating cross-examination. There was no real unanimity in the testimony of these witnesses, except for the fact that such things were used. Mr. Wines himself repeatedly expressed the view that so long as he labeled the document as a “resume” he might omit anything he pleased, and that the term itself was a red flag. Most of the insurance representatives testified that they placed some reliance upon these “resumes” though probably not full reliance. Respondent relied also in certain specific instances, upon the asserted fact that at the time he gave the resumes to an adjuster in person, he also let the adjuster look at the original medical report and make notes. In only one instance did Respondent’s counsel seek to corroborate this contention by questioning the adjusters who testified, and that one had no specific recollection of seeing the original report. Respondent further asserted that he had discussed with one or more of the doctors the term “favorable for recovery” and had indicated that it was confusing. He testified that he talked to the partner of the interested doctor concerning the history of accident involved in Count 8 (related above), stated that the doctor could be “cut up” on cross-examination because of the phraseology, and stated that he would like to rephrase it to “make a little more sense.” No express consent was shown. He further testified that the adjuster knew it was a three-car accident and saw the original of the medical report.

Without any exception the “resumes” involved here were typed so that they (quoting from the Commissioner’s Report) “ * * * considered alone and in themselves, were apparently complete and verbatim.” In other words, except for the word “Resume” typed at the top, these documents would consistently appear to be complete reports in every detail, even to the typed signature and the reproduction of the doctors’ letterheads at the top.

Count 9 charges that Respondent omitted from a document submitted to the insurer and giving medical information, the words underscored in the following quotation: “He was admitted to Christian Hospital complaining of pains in his back radiating down to his right hip and up to his neck”; also that, as to two different clients injured in the same accident, Respondent stated in the documents so submitted that medical costs to date were $90 and $85, respectively, whereas in truth the amounts so reported to him were $65 in each case. One of these documents so sent out was entitled “Copy” and the other bore no title or label at all. The documents were transmitted with a letter of November 18, 1955, signed in Mr. Wines’ name, with small illegible initials under the name. The significance of the omitted words, supra, lay in the fact that there was testimony to the effect that, had they appeared, they would have raised some doubt as to the existence of a true whiplash injury, and would have caused the claims man to question the claim. Respondent testified that these supposed copies were sent out during his relationship with Mr. Stoll, that he generally worked outside the office, and that he seldom dictated letters, though he occasionally signed them. He denied all responsibility for the letter of November 18, 1955, transmitting the copies. The plain inference in his testimony seems to be that the letter was prepared by Mr. Stoll, though he did not so state. He admitted signing a letter of February 20, 1956, to the adjuster on these claims which letter repeated the amounts of the medical charges referred to above, and listed other expenses and loss of time; however, he denied having anything to do with any of the “dictation” in that file.

The facts with reference to Count 1 of the information are very complicated. We shall abbreviate them when possible, but in a case of this kind the facts must be adequately stated. In that Count Respondent was charged with several different specifications of misconduct, as follows: (1) the misrepresentation of the contents of a medical report on a Miss Olabea Jehlen; (2) the misrepresentation of medical expenses incurred by Miss Jehlen and a Mrs. Bremer; (3) (4) and (5) misrepresentations that Miss Jehlen’s car had been repaired, the value of the repair and the fact that the repair bill had been paid. All this arose out of one apparently minor collision between the car of one Carpunky and the one in which Miss Jehlen and her friend, Mrs. Bremer, were sitting somewhere in Illinois near St. Louis. Photographs appear to show only a minor dent and two or three small scraped places on the left rear fender of Miss Jehlen’s car. Both of these women employed Respondent and he wrote a lien letter to the driver of the other car, which letter was referred to a firm of independent adjusters in Alton, Illinois. About a month later, on February 26, 19S8, Respondent wrote to that firm enclosing “copies of medical reports” and stating further: “The property damage in this matter is approximately $110 and I can supply you with a paid bill if we are able to dispose of this case. The other expenses incurred are $75 medical for Miss Jehlen and $100 medical for Mrs. Bremer.” Respondent produced as his Exhibit I what purported to be the original medical report on Miss Jehlen dated February 11, 1958; this was essentially a duplicate of the copy sent out by Respondent. Informants contended that Exhibit I was an altered report, omitting the words “Condition is improving” and “Re-injury of old injury” and with the insertion of the words “sacro-iliac sprain,” in lieu of the wording supposedly appearing in the original report. The Informants attempted to establish that charge by evidence in substance as follows: that two representatives of the Association of Casualty and Surety Companies went to the doctor’s office in October 1958 to see his records in this matter; one of those men testified that they were shown the original report on Miss Jehlen, and that it differed in the aforesaid respects from the copy submitted to the insurer by Respondent; also, that the other representative made notes, which were produced (such other representative did not testify); a United States Post Office Inspector testified in substance that in the course of an investigation he saw a record (he thought on a manila card) containing the words now claimed to have been omitted. The doctor’s former secretary-lab technician testified: that she typed Exhibit I and signed the doctor’s name to it, but not on the date shown, February 11, 1958; she did not know when she did write it, did not recall being instructed to date it back, but noted that it was written in elite type, that she left this employment on November 1, 1958, and that an elite typewriter was first procured about two months before she left because she had broken the old, “pica” typewriter; she testified that either the doctor or one McGee (another technician) told her what to type in Exhibit I. The doctor and McGee testified, in substance, that no report was made except as shown by Exhibit I, and Respondent denied receiving any report which differed from the copy he sent out. Somewhat out of order, but while the reader may perchance have these facts in mind, we have concluded that on this first specification of Count 1, the Informants failed to establish the misrepresentations charged. Some circumstances raise a suspicion, it is true, but we cannot convict Respondent on speculation or suspicion.

The same secretary typed under date of February 11, 1958, bills for services to Mrs. (Miss) Jehlen and Mrs. Bremer in the respective amounts of $50 and $75; the latter bill was expressly stated to be for services “to date”; these were sent to Respondent. In the letter which the latter wrote to the adjusting firm on February 26, 1958, he stated as already pointed out that the “incurred” medical expenses were $75 and $100, respectively, in lieu of the figures just given above. Respondent’s explanation for this was that he called Mr. McGee (who seems to have had unusually-varied duties and extensive authority for a non-medical employee) and was given the larger figures on the assumption that there would be further services. McGee more or less corroborated this. Neither woman returned to the doctor after the date of the bills, although Miss Jehlen had an appointment and failed to keep it.

Miss Jehlen’s car had not been repaired, ■nor had she told Respondent that it had been. So far as she knew no estimate of the cost of repair had been made, although she said that Mr. Bremer had at one time mentioned that he would “have the car appraised.” She had never received any estimate. Incidentally, she received no money on her claim and Respondent later told her that her case was dismissed. Specifications (3), (4) and (5) are based upon the sending by Respondent to the interested insurance adjuster of an “Auto Repair” bill of “Carr & Pagett,” 2101 N. Florissant, dated January 20, 1958, addressed to Olabea Jehlen, and stamped “Paid”; the items were: “1 Quarter panel assembly 90.25, Labor & Painting 83.00, Tax 1.80,” with a total of 175.05 (no dollar marks). Respondent’s letter of April 18, 1958, to the adjuster stated, in toto: “Enclosed please find repair bill in this matter.” Respondent had written a previous letter on February 26, as already indicated, stating that the property damage was approximately $110 and that “I can supply you with a paid bill * * Mr. Carr testified for Informants: that he was an automobile mechanic and was in 1958 operating a shop for mechanical repairs in partnership with Pagett; that he never did any body work or painting, that he made no estimate on this car, did not know Mr. Bremer or Miss Jehlen, that he gave no figures to Bremer, and that he kept no price lists on body parts; that he did know Floyd Allen, but had never authorized Allen to make out any repair bill for him. By way of impeachment it was shown that Carr had served a term for larceny in the Intermediate Reformatory in 1948 and 1949. The evidence for Respondent concerning the procuring of this paid bill was long, complicated and somewhat inconsistent. Mr. Bremer (the husband of one of the women involved) and one Floyd Allen testified; combining this testimony, it was in substance: that they procured a blank billhead stamped “Paid” from the shop in question and took it to Respondent’s office in blank, but with certain figures on a separate paper which they had also procured at the shop. They further testified that they' gave the blank “Paid” bill to Respondent’s secretary and told her how to complete it. This was presumably on January 20, 1958, the date of the “bill.” Allen knew Carr; Bremer did not. Allen testified: that he had known Respondent for 8 to 10 years; that he went with Bremer to see Carr about an estimate and Carr said he would look at the automobile at Miss Jehlen’s home; that he and Bremer went back about three- days later and Carr told him that he had not looked at the car; that he and Carr “got out the book on repairing” and figured out the cost as “approximately $100 some dollars” which figures Carr wrote down on a card, stamped a billhead “Paid,” and gave him the figures and the billhead; that Bremer was sitting out in the car; that he, Allen, was “not concerned” with whether anything had been paid for the job, as that was “his business, it aint mine,” and that all he wanted was an estimate. When asked if he had told Respondent’s secretary that the bill had not been paid, he answered: “It ain’t none of my business to tell that woman anything.” This witness (Allen) was certain that he dealt only with Carr, and that he did not even see Pagett (the other partner) on the day in question, Allen was then operating a tavern, and Mr. Wines had represented him in three civil suits. Arthur Bremer partially corroborated Allen, testifying: that Respondent had called him about getting an estimate on the car, and that he asked Allen “sitting with me at that time at the bar if he knew of anybody that was in that business.” That Allen suggested Carr or Pagett and they went there; that the man they talked to (whom Allen told him was Carr) said that he would look at the car; that they went back a few days later but on that occasion he merely sat in the car; that Allen came out, said “they made an estimate of the car,” and that they went to Respondent’s office where Allen gave the “estimate” to the secretary and she “typed it out”; on cross-examination Bremer identified an affidavit he had executed Stating that the “bill or estimate” had “been supplied me by Mr. Pagett”; he then testified that the man might have been either one. This witness admitted the payment of two fines on charges of setting up a handbook and establishing a lottery. He had introduced Respondent to Miss Jehlen. The adjuster who received the receipted repair bill had that phase of the matter investigated, after which he called Respondent and denied “the claim in its entirety.” He testified that Mr. Wines replied that evidently they had information which he did not have and that he did not want to be “embarrassed.” Respondent’s explanation to the Commissioner was that the “Paid” bill did not come to his attention until shortly before he sent it out, and that previously he had been told by Bremer that the estimate should run about $100 or $110. In essence the defense was that Respondent had relied on this bill for the cost of the repair of the car and knew nothing personally of the facts.

Rule 4.15 prohibits, in the pursuit of a client’s cause, “any manner of fraud or chicane”; Rule 4.22 requires “candor and fairness” in the conduct of the lawyer, and forbids the making of knowing misquotations; Rule 4.47 provides that a lawyer “should always maintain his integrity,” and generally forbids all misconduct injurious to the interests of the public, the courts, or his clients, and acts contrary to “justice, honesty, modesty or good morals.” Our Commissioner has accurately paraphrased these rules as follows: “An attorney does not have the duty to do all and whatever he can that may enable him to win his client’s cause or to further his client’s interest. His duty and efforts in these respects, although they should be prompted by his ‘entire devotion’ to the interest of his client, must be within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of the law or any manner of fraud or chicane. His conduct should be characterized by candor and fairness. He should not knowingly misquote the contents of a paper, nor willfully commit any act against the interest of the public. His conduct always should be in harmony with justice, honesty, modesty and good morals.”

Little would be gained here by a review of the cases stating the principles followed by our Missouri Courts in disciplinary matters. See, generally: In re Randolph, Banc, Mo., 347 S.W.2d 91; In re Sympson, Banc, Mo., 322 S.W.2d 808; In re Conner, 357 Mo. 270, 207 S.W.2d 492; In re Downs, Banc, Mo., 363 S.W.2d 679; In re Veach, Banc, 365 Mo. 776, 287 S.W.2d 753. Perhaps the guiding principles are as well stated in Downs, supra, at 363 S.W.2d loe. cit. 691, as elsewhere: “The theme running through these and many other cases is that the primary and ultimate purpose of disciplinary proceedings is to protect the public, the integrity of the Bar, and the cojirts, from the practice of law by persons unfit to serve as members of the Bar, — and that the courts have ‘a solemn duty to the public and to the legal profession to enforce the code of ethics governing the conduct of attorneys.’ Sympson, supra. There is no inherent right to continue in the practice of law, but rather it is a mere privilege which will be withdrawn when one proves himself unfit. [In re] Canzoneri [Mo., 334 S.W.2d 30], Conner, supra.” Counsel have cited various outstate cases which may be somewhat closer to the present facts than our own, but we find it unnecessary to delve into them. One cannot expect to find an exact blueprint in a case of this kind.

It is clear that in all such matters as this the findings and conclusions of our Commissioner are advisory only, and that the court must make its own findings, giving such credence as seems indicated to the Commissioner’s views on credibility. In re Woodward, Banc, Mo., 300 S.W.2d 385; In re Downs, supra; In re Veach, supra. The Commissioner here has performed an exceedingly painstaking and workmanlike job in assembling and analyzing the evidence, but we are forced to disagree with certain of his conclusions.

On Count 1 we have already indicated a finding of not guilty on the first specification, namely, the sending out of a supposedly altered medical report on Miss Jeh-len. The Commissioner also so found. We do, however, find Respondent guilty on the other specifications of that Count. The first of these charged the misrepresentation of inflated medical expenses as “incurred” expenses (letter of February 26, 1958, Exh. 2) when Respondent had bills in his possession showing the correct amounts, and when it appeared from his own evidence that any additional and added expense was merely problematical. The Commissioner attributed this action to the use of “careless or inadvertent language.” There is no place in a lawyer’s professional life for the use of language so loosely. The other specifications of Count 1, i. e., 4, 5 and 6, all involve misrepresentations made in the sending of the false receipted bill for the repair of Miss Jehlen’s car. We find Respondent guilty on these. Concededly, the document was a “phoney”; Respondent merely claims that he did not know it. The car had never been repaired, and no estimate of the cost of repair had ever been made. We find from the evidence that Carr and Pagett did not do body work or painting, and there is at least a grave doubt in this court’s mind as to whether Carr ever gave any figures at all to Bremer or Allen. The real question here is whether Respondent assumed any responsibility in sending this bill to the adjuster, after supposedly finding it in his file. We hold that he did. If there was no specific intent to deceive as the Commissioner found, there was nevertheless an independent representation by him that the car had been repaired and the bill paid, when he knew no such facts and had made no effort whatever to investigate. The adjuster had asked Respondent to furnish “estimates of the damage * * * or the final repair bill * * This document could only have been submitted as the final repair bill; incidentally, it is almost inconceivable that the bill could have been in Respondent’s office for nearly three months without his knowledge, after being typed by his own secretary. While the Commissioner found that Respondent was not “knowingly a party to an attempted fraud,” we find that, at best, his acts in so carelessly dealing with the truth did not constitute that “candor and fairness” required of lawyers, and that such conduct was also contrary to “honesty” in its true sense.

We may consider together Counts 2-7, inclusive, noting some variations. These all concern Respondent’s “resumes” of medical reports. In Counts 2, 4, 5 and 7 the only words omitted from the respective medical reports were “favorable for recovery,” as they appeared at the beginning of the “prognosis.” We shall not elaborate further on all the divergent views expressed by witnesses concerning the use, meaning, justification and composition of resumes or summaries. Webster defines a resume as: “A summing up; a condensed statement; abridgment, summary” (Third New International Dictionary). Some of the witnesses did not feel that a “resume” need be a true summary or condensation, and some felt that a lawyer might omit anything which he considered injurious to his client; also, that perhaps such a custom existed in that locality. A custom may not be regarded as a complete vindication when a lawyer is charged with misrepresentations. We agree that a lawyer in his negotiations with his opponent’s representative may give as much or as little medical information as he pleases (except to the extent that Rule 60.01 is now applicable). But when he gives any, it should not be in such form as is likely to mislead or deceive; and we think that the probability or likelihood of deception is the important element, regardless of any demonstrated, affirmative intent to deceive. Here the “resumes” were so prepared that they appeared in all respects to he copies; some were rather lengthy; they carried reproductions of the respective doctors’ letterheads, copies of the signatures, occasionally the initials used to show dictation, and they were all paragraphed (as a complete report would be) into such divisions as “Chief Complaint,” “Past History,” “Physical Examination,” “Diagnosis,” etc. There were no indications of deletions. In this situation we hold that any material omission was a thing calculated to deceive. In Counts 2, 3, 4, 5 and 7 the words “favorable for recovery” were omitted from the prognosis, but a comparison of the original medical reports with the resumes demonstrates that the remainder of the “prognosis” in each such case, as furnished, was sufficient to give a reasonably clear idea of the true opinion of the doctor; the same is true of the omission of the words “I would not anticipate any permanent disability as a result of this injury” (Count 3), for the resume actually stated: “A soft tissue injury & will probably heal without complication.” Thus, while we do not approve of deletions in a resume submitted in that form, we find Respondent not guilty on Counts 2, 3, 4, 5 and 7, because, in our opinion, nothing material was omitted or misrepresented. The same principle applies to Count 6, where, in Mr. Wines’ personal claim for injuries due to the fall of an elevator, the resume omitted the following: “The car bounced some and the patient stated that his right leg buckled partially, but he did not fall to the floor but was able to catch his weight. All of his weight was on his right leg as his left leg was crossed over it, leaning against the back of the elevator.” While again, we do not approve of an omission in a document prepared and submitted in that form, we fail to see that this omission could have materially misled the insurer. We find Respondent not guilty on Count 6. The evidence on Count 8 was that in submitting a resume of the medical report on Miss Betty Brockman, Respondent altered the history given to the doctor. That history was: “While waiting there, the car behind them stopped, but a third car failed to stop and rammed into the car behind them which threw the second car into their car.” In lieu of that history, Respondent submitted in his resume the following: “While waiting there a car failed to stop and rammed into her car.” It is obvious that this was not a mere omission, but an affirmative misstatement of fact. We have in mind Respondent’s attempted explanation that the adjuster knew that this was a three-car accident, that he showed the adjuster the original medical report, and that he called the doctor, telling him that the recital was confusing. The adjuster did not fully corroborate that testimony, and the altered report went into his files. We cannot overlook a positive misstatement of fact submitted in such a document. We find Respondent guilty of misrepresentations as charged on Count 8.

The evidence on Count 9 involved the claims of two persons — Smith and Carver; supposed copies of these medical reports (not resumes) were submitted to the insurer, one being marked “copy” and the other bearing no title but clearly purporting to be a copy. In these documents “medical cost to date” was stated, respectively, as $90 and $85 (both figures indicating erasures and rewriting). The doctor’s longhand, original reports, directed to Respondent’s then law firm, were received in evidence. The “med cost to date” in each instance was shown as $65. The original report on Smith included the following: “He was admitted to Christian Hospital complaining of pains in his back radiating down to his right hip and up to his neck.” In the “copy” submitted the last five words were omitted. The interested claims man testified'that, had these words been included, he would have questioned the claim because of the rather unusual symptoms for such an injury. Respondent denied all connection with a letter sending out those copies under date of November 18, 1955. He admitted signing a letter to the adjuster dated February 20, 1956, in which the inflated amounts of medical expenses were repeated, among various other claimed items of damage, but denied dictating it. Respondent apparently gave the original medical reports to the defendant’s attorney when both claims were settled, but only after the suit on one had been assigned for trial. Respondent, in substance, denied all knowledge of these changes, refused to fix specific responsibility on anyone, but apparently inferred that his partner was responsible. The submission of the Smith copy was not justified upon any theory of “resume,” nor were the inflated medical figures explained. The Commissioner has found that Mr. Wines was, at the time, doing work largely out of the office, that he was new in the practice and prone to rely upon an older partner, and that he was not responsible for the preparation of these documents. While we feel that he was extremely careless in permitting the use of his name on such documents without checking the facts, we accept the finding of the Commissioner that he was not guilty of the misrepresentations charged in Count 9.

We come now to our principal difference with the Commissioner, namely, his ultimate conclusion. He saw fit merely to admonish the Respondent against accepting and passing on information without verifying it, and against carelessness in the use of language. We feel that the extent and duration of the practices Respondent thus engaged in, his rather callous attitude toward the use of “resumes” regardless of their obviously deceptive appearances, his affirmative alteration of the history of accident in one case, the alteration of “incurred” medical expenses, and the submission (with no investigation at best) of an admittedly false receipted bill for car repair, impel us to go further. Respondent saw fit to offer no testimony before the Bar Committee and he has required, as was his privilege, a full hearing before our appointed Commissioner, after making a pleaded denial of all charges.

Under these circumstances it is the judgment of the Court that Eugene W. Wines be and he is hereby suspended from the practice of law in Missouri for a period of six months from October 1, 1963, and that all costs are hereby adjudged and taxed against Respondent. The suspension for such period is imposed to emphasize the effect of the reprimand which this opinion constitutes.

All concur, except HOLMAN, J., not sitting.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James L. McWILLIAMS, Appellant.
    No. 49409.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.
    Motion for Rehearing and Transfer to Court En Banc Denied Sept. 9, 1963.

      James L. McWilliams, pro se.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Grace S. Day, Sp. Asst. Atty.
    Gen., St. Joseph, for respondent.
   BARRETT, Commissioner.

A jury found James Lloyd McWilliams guilty of the offense of “stealing.” § 560.-156 RSMo 1959, V.A.M.S. The charge and proof was the theft of a “motor vehicle” and therefore the offense was a felony regardless of the value of the automobile. § 560.161, subd. 2(2) RSMo 1959, V.A.M.S. Five prior felony convictions were found by the court and McWilliams was sentenced to 10 years’ imprisonment. § 556.280 RSMo 1959, V.A.M.S. With the assent and encouragement of his trial counsel the appellant has himself prepared and filed the brief in this court.

The sufficiency of the evidence to sustain the conviction is not challenged and only a brief résumé of the evidence favorable to the state is necessary. There were 75 automobiles on the Gene Jantzen Chevrolet lot when the used car manager closed for the week on February 18, 1961. When he came to work on Monday, February 20, a 1960 four-door, solid white Chevrolet, serial number 01519S245348, was missing and the fact was reported to the police. The automobile was not. seen again until five months later when the police arrested the defendant and the automobile was identified at police headquarters. The police were looking for Dudley Bullock’s stolen license plate X37-881. On July 14, 1961, they “spotted” a white Chevrolet bearing that license plate parked near a restaurant where McWilliams’ wife was employed, and when he entered the automobile and drove away the police arrested him. The following day he “admitted” to the police and to the used car manager that “he went to the 5200 block of Ashland and stole a license plate and came up to Gene Jantzen’s lot and got a car,” the missing Chevrolet which he said he drove away as “the key was in the car.” This evidence and these circumstances, including his possession of the stolen vehicle, support the charge and the jury’s verdict. State v. Jones, (Mo.) 358 S.W.2d 782; State v. Gale, (Mo.) 322 S.W.2d 852.

Three of the matters briefed were not referred to in the motion for a new trial (Sup.Ct.Rule 27.20, V.A.M.R.) and in so far as they are matters of exception are not open questions here. State v. Brown, (Mo.) 298 S.W.2d 351, 353. In so far as they are “matters upon the record” (Sup.Ct.Rule 28.02), and concern the sufficiency of the verdict, sentence and judgment, they may be disposed of summarily.

The fourth assertion and assignment that the court, immediately upon the return of the verdict, assessed the penalty and raised the bond from two to ten thousand dollars “before appellant’s attorney was allowed to place before the trial court a motion for a new trial” does not comport with the record and evidently is an assumption based upon a misinterpretation of the facts. The verdict was returned January 25, 1962, whereupon the court polled the jury and explained the reason for the form of the verdict. “Thereafter, and on March 5, 1962,” the record recites, the defendant filed his motion for a new trial. Subsequently, March 9, 1962, the defendant and his counsel were present in court, together with the state’s attorney, and the motion for new trial “was argued, submitted, considered and denied.” And again thereafter, in accordance with the verdict and the court’s finding of prior convictions, there was formal “Judgment, Allocution and Sentence.” Thus, according to the solemn record, the defendant was present in court, there was argument of his motion for a new trial, and there was sentence and judgment in accordance with the rules. Sup.Ct.Rules 27.08, 27.09, 27.10.

The sixth objection is that the court erred in using the forms of verdict in that they “did not specify the charge as shown and given on the information under which the appellant was charged which reads as follows ‘5 Prior Convictions of a Felony and Stealing over Fifty Dollars ($50.00) or Over (Motor Vehicle) ?’ ” As a matter of fact, as indicated at the outset, there was no such charge and there was no such submission in the verdict forms. The one returned by the jury “find(s) the defendant guilty of stealing a motor vehicle, as charged.” And, as indicated, the theft of a motor vehicle is a felony regardless of its value. § 560.161, subd. 2(2) RSMo 1959, V.A.M.S. His five prior felony convictions were alleged and shown but they were not alleged or shown as independent “charges” or as a part of the substantive offense of stealing. With some degree of justifiable pride the appellant points to his successful appeal of a bogus check conviction in 1960, State v. McWilliams, (Mo.) 331 S.W.2d 610. But there, before the effective date of the new and amended Habitual Criminal Act (Laws Mo.1959, S.B. 117), the appellant complained because his prior convictions were proved and submitted as a part of the state’s case in chief. Now, despite the change and the new procedure of the judge finding the prior convictions, he complains that they were not included and found in this verdict. But as to this complaint, as well as to any complaints of the substantive offense of “stealing,” the appellant simply refuses to accept the new concepts of both procedure and substantive law. State v. Zammar, (Mo.) 305 S.W.2d 441; State v. McWilliams, supra.

Somewhat related to these two claims, but more likely a matter of exception, is the fifth complaint that “under the ruse of impeachment” the state’s attorney was permitted “to completely place before the jury the entire past criminal record * * * that are not officially recorded against the appellant.” It may be noted in passing that both parties, as the trial court attempted to tactfully suggest on several occasions, pursued every possible subject in tedious detail. But it was the appellant who insisted upon going into the details of three of the bogus check cases—“Can we go into details on this, sir? I would like to.” He was particularly insistent in repeatedly explaining that one with a criminal record had difficulty in financing the purchase of automobiles. But, as the trial court observed in considering an objection, “Well, the man has an explanatory manner about him.” But having insisted on certain details he is in no position to complain of a similarly detailed cross-examination.

In his motion for a new trial there was specific objection to instruction 1, that it was “inconsistent” and “likely to mislead the Jury.” To elaborate and demonstrate, in his motion and here, the appellant excerpts from this long instruction (over two printed pages) and complains that the definition of “stealing” is too broad, “far beyond the evidence and the facts in this case.” He says that no one saw him take the automobile and he argues that under this instruction “anyone could be tried for stealing so long as said party had possession or control of any automobile or article. If said party having possession could not produce ownership papers for the same.” It is not necessary to comment in detail on this latter statement, it is sufficient to again say that the argument is a further illustration of the appellant’s understandable unwillingness to accept and face the new concept and definition of “stealing.” State v. Zammar, supra; State v. Jones, supra. Once the new definitions are accepted it may only be said that instruction 1 is not prejudicially erroneous for the reasons urged here. State v. Price (Mo.), 362 S.W.2d 608; State v. McCarthy (Mo.), 336 S.W.2d 411.

The third ground assigned for a new trial was newly discovered evidence. It is not necessary to detail all the circumstances connected with this claim, as to form the affidavits of the appellant and Billy Eugene Lackey are accepted as sufficient although it does not appear just who Billy is, where he has been all this time, just how he was. found after this conviction, and how he happened to make the affidavit attached to the motion. McWilliams reaffirms that he did not steal the automobile, claims, as in the trial, that he bought it from a stranger named Martin, that he was never able to. find Martin even after eight or ten encounters with him, and that prior to February-22, 1962, he did not know Lackey and could not have produced him as a witness in January. The essence of Lackey’s affidavit is that “sometime in the early part of 1961, I don’t remember the exact date,” I went to-the Gene Jantzen used car lot * * * and took from the used car lot there a white 1960 Chevrolet; that I was alone when I took this 1960, white Chevrolet; that James Lloyd McWilliams was not with me nor was, I, on that date, acquainted with James Lloyd McWilliams; and James Lloyd McWilliams did not have anything to do in any way with the stealing of this 1960, white Chevrolet.” Lackey also affirms, had he testified, that he would have said “that a few blocks away from Gene Jantzen Chevrolet used car lot I stole a license plate from a parked' automobile and put it on the 1960 Chevrolet; I had just taken.” He states that he had this automobile for four or five days and “sold it to a fellow who called himself Tom Moss” for $150 and, he deposes, “I never saw him or the car again.” (Italics supplied for emphasis.)

It would indeed be an unusual coincidence that these two separate sets of circumstances could have happened, but that probably goes only to the credibility of Lackey and his affidavit. It is not necessary, however, to analyze these affidavits and the record in detail, it is enough to say that Lackey’s affidavit could be accepted and yet it is sufficiently vague and uncertain that McWilliams, unknown to Lackey, between February 18th and 20th could have stolen license plate X37-881 and a 1960 white Chevrolet, serial number 01519S245348. In brief but sufficient illustration, as the court said of a similar affidavit 75 years ago, “Did the circuit court err in refusing to grant a new trial because a convict in the penitentiary gives an affidavit tending to show that he was the robber, and not the defendant? Inspection of the affidavit itself amply justifies the trial court in declining to grant a new trial based upon its statements. Outside of the utter improbability of any sensible jury crediting the evidence of this self-confessed thief, robber, and convict, he does not confess that he robbed Moore. * * * He simply admits he assaulted a negro man with a pistol, and that the man’s name was unknown to him. * * * All this may be true, but it does not follow at all that the defendant, at or near the same time, may not have been robbing his man quietly, as the evidence shows he was. It is not impossible nor improbable that both McDermott and the defendant were engaged in relieving law-abiding citizens of their money on that same night, and near the same bridge, and about the same time. The circuit court unquestionably exercised a wise discretion in not granting a new trial upon such a showing.” State v. Waters, 144 Mo. 341, 347-348, 46 S.W. 173, 175. And see State v. Rippey, 228 Mo. 342, 350-351, 128 S.W. 726, 729.

The other ground set forth in the motion is that the court erred in “refusing to inform a member of the Jury Panel as to the punishment for the crime.” The appellant now attempts to expand this wholly inadequate assignment (Sup.Ct.Rule 27.20; 24 C.J.S. Criminal Law § 1673(4) p. 1109) into a claim that the court erred in “withholding the range of punishment from any member or prospective member of the jury panel.” This claim has to do with the fact that on voir dire a juror repeatedly inquired of the court "What is the extreme penalty?” When he insisted on an answer and his right to know the court finally said, “I will excuse you on the Court’s own motion.” The court withheld the information because of the allegation of the prior felony convictions because of which the court said, “You won’t have anything to do with that, Mr. Juror, at all. Only thing you will decide is did he do it or not do it. The range of punishment, I have to determine as a Court.” Aside from the inadequacy of the assignment, there is no claim here that the juror chosen, in the place of the excused juror, was not duly summoned and qualified, the appellant was not entitled as a matter of right to have a particular person on the panel and, in short again, there was no manifest abuse of discretion in the court’s excusing the persistently inquisitive juror. State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079; 24A C.J.S. Criminal Law § 1867, p. 717.

As indicated in other connections, there is no error “upon the record” before the court (Sup.Ct.Rule 28.02), there is no merit in the appellant’s assignments of error and, therefore, the judgment is affirmed.

BOHLING, C., concurs.

STOCKARD, C., concurs in result.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Judge.

text:
    Donald A. HELLESEN, Appellant, v. KNAUS TRUCK LINES, INC., Respondent.
    No. 49845.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.

      Frank O. Benson, Quinn, Peebles & Hickman, Kansas City, for appellant.
    John C. Russell, Donald E. Raymond, Kansas City, for respondent.
   EAGER, Judge.

In this case the trial court sustained a motion to dismiss, and dismissed plaintiff’s first amended petition with prejudice. The suit is one for libel. We have jurisdiction because the prayer of the petition is for $30,000. The petition alleged: that plaintiff was employed by defendant as an over-the-road truck driver, and that he was a member of Local 41 of the International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America (which we shall hereafter refer to as Teamsters); that the contract setting forth the “terms and conditions” of plaintiff’s employment contained in Article X the following: “The Employer shall not discharge nor suspend any employee without just cause, but in respect to discharge or suspension shall give at least one (1) warning notice of the complaint against such employee to the employee, in writing, and a copy of the same to the Union affected, except that no warning notice need be given to an employee before he is discharged if the cause of such discharge is dishonesty or drunkenness, or recklessness resulting in serious accident while on duty,, or the carrying of unauthorized passengers. The warning notice as herein provided shall not remain in effect for a period of more than nine (9) months from date of said warning notice. Discharge must be by proper written notice to the employee and the Union affected.” Plaintiff then alleged that on June 28, 1960, one F. E. Crowder, defendant’s agent, acting within the scope of his agency, willfully, wrongfully and maliciously published concerning plaintiff the following letter, alleged to be false, defamatory and libelous:

“Mr. Donald A. Helleson 3238 Independence Ave. Kansas City, Missouri Dear Sir: On June 10, 1960, you were a member of a sleeper team who delivered a load of wheat at the Beardstown Mills Company, Beards-town, Illinois. Starting on that date, a survey or check of peddle time was conducted lasting for two weeks, report of which was recently received by this office. The report reveals that your actual peddle time was twenty-five minutes, you charged this company one and one half hours as evidenced by your pay sheet and log book. Penalties for dishonesty are clearly outlined in Article X of the Central States Area Over-the-Road Motor Freight Agreement; however, this Company elects to reduce the severity of the penalty of this instance. In view of the above-mentioned facts, I am issuing this warning letter for dishonesty as outlined in Article Z of the Over-the-Road Agreement. Should this occur in the future, more severe disciplinary action will be necessary. Yours very truly, KNAUS TRUCK LINES, INC., F. E. Crowder, Safety Supervisor, FEC :gm CC: Local Union #41.”

Plaintiff further alleged: that the letter was published “by placing said copy in defendant’s files and records * * * ” and by causing a copy “to be mailed and delivered to said Teamsters Local Union No. 41 in Kansas City,, Missouri” where it became a part of plaintiff’s union record; that the letter falsely attributed to plaintiff the commission of a “fraud, theft and embezzlement, and of stealing by means of deceit, * * * ” the latter being a crime under §§ S60.1S6 and 560.161, RSMo 1959, V.A. M.S., as amended; that the letter directly tended to prejudice plaintiff in his trade and employment (as elaborated somewhat in the petition) and tended to expose him to public hatred, contempt and ridicule (also amplified) in violation of § 559.410; that plaintiff’s reputation was thus blackened, he was humiliated, and that his ability to acquire and retain jobs had been affected. Compensatory damages of $15,000 were sought, along with punitive damages in the same amount. The motion to dismiss was predicated upon the ground that the petition failed to state a claim upon which relief could be granted. We gather that “peddle time” means time spent in waiting for a truck to be unloaded, though the briefs do not elaborate.

Since no special damages are pleaded, the letter must have constituted a libel per se in order to be actionable. Langworthy v. Pulitzer Publishing Co., Mo., 368 S.W.2d 385; Nordlund v. Consolidated Electric Co-Op., Mo., 289 S.W.2d 93, 57 A.L.R.2d 832. In such a situation we consider the words of the letter, stripped of extraneous allegations. Langworthy, supra. And always, the words are to be considered in their “ordinary meaning in the plain and popular sense,” and the instrument “must be interpreted from its four corners.” Jacobs v. Transcontinental & Western Air, Inc., 358 Mo. 674, 216 S.W.2d 523, 525, 6 A.L.R. 2d 1002.

Plaintiff asserts here that the letter did constitute a libel per se, both as (a) imputing the commission of a crime, i. e., stealing under § 560.156, and (b) as tending to disgrace and degrade plaintiff, expose him to public hatred, contempt and ridicule, and as reflecting on his integrity, character and good name. As to (a),, he cites generally Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596; Starnes v. St. Joseph Railway, Light, Heat & Power Co., 331 Mo. 44, 52 S.W.2d 852; and Priest v. Central States Fire Ins. Co., 223 Mo.App. 122, 9 S.W.2d 543. Those cases are applicable here only as stating general principles,, with perhaps the further proposition that the specific crime need not be named if the language used is susceptible only of the construction that some crime is charged. As to (b), we note § 559.410 defining the term libel; that statute primarily concerns criminal libel, but it has been held that the definition is applicable both in criminal and civil cases, and that “ * * * any false, unprivileged, written communication which, reasonably construed, comes within the statutory definition is libelous per se. Seested v. Post Printing & Publishing Co., 326 Mo. 559, 575, 31 S.W.2d 1045, 1052 [4-7.]” Coots v. Payton, Banc, 365 Mo. 180, 280 S.W.2d 47, loc. cit. 53. But the article (or letter) must be one defamatory in itself before the provisions of this statute attach. Coots v. Payton, Banc, 365 Mo. 180, 280 S.W.2d 47; Langworthy v. Pulitzer Publishing Co., Mo., 368 S.W.2d 385. Defendant argues that this letter was not libelous: (a) because the petition alleged no special damages and the allegations cannot constitute a libel per quod; and (b) because, considered from the standpoint of a libel per se, the innuendo asserting the charge of a crime cannot enlarge the words actually used (Grossman v. Globe-Democrat Pub. Co., 347 Mo. 869, 149 S.W.2d 362), and because the letter did not charge that plaintiff had acquired any money or property of defendant wrongfully, or even that the log book and pay sheet were the basis of computing plaintiff’s wages; further, that only by a strained construction could the letter be construed as an accusation of a crime. Our “stealing” statute has not been effective long enough to have been the subject of many constructions; it is not necessary to construe it specifically here. For the present purpose we shall assume that the letter charged plaintiff with the crime of acquiring or stealing defendant’s property by deceit, or of an attempt to do so: See,, on the latter, § 556.150. We note also that the letter referred to “Penalties for dishonesty” as outlined in Article X of the labor contract, and also that the letter was issued as a “warning letter for dishonesty * * *.”

The real questions here involve the doctrines of qualified privilege and consent. The issues have been confused somewhat by arguments pro and con that there was and was not an actionable publication but, upon analysis, it seems obvious that what defendant’s counsel really mean is that such publication as was made was fully protected, while plaintiff’s counsel insist that there was a publication, protected only by a qualified privilege. At this point we note that although plaintiff alleged generally that the defendant’s agent wrote and “published” the supposed libelous words, when we read the petition from its “four corners” we find that this generally stated conclusion is limited by the specific allegations that defendant “published” the letter by placing a copy in its files and by mailing a copy to the Teamsters Local. We shall only consider these specific allegations. Farm & Home Savings & Loan Ass’n of Missouri v. Armstrong, 337 Mo. 349, 85 S.W.2d 461, 464-465; Coble v. Economy Forms Corp., Mo.App., 304 S.W.2d 47, 53.

The petition discloses that plaintiff belonged to Local 41 of the Teamsters: his union will be conclusively presumed to have-been his agent in negotiating and executing the labor contract. That contract required a warning notice before any discharge or suspension, with a copy to the union, except in case of a discharge for dishonesty,, drunkenness, recklessness on duty, etc. Here the defendant elected to give a warning notice in a situation where it was probably not required to do so; but its election not to discharge plaintiff immediately and to-give a notice was for his benefit, and we-think that the defendant was fully justified' in electing the more lenient course. Having properly done so, a copy of the letter was-necessarily sent to the Local of the Union. Defendant could (and undoubtedly would) have discharged plaintiff by precisely the same kind of letter it used here.

We shall dispose first of the contention that defendant effected an actionable-publication of the alleged libel by placing a copy in its files; we are cited to no case, pro or con, specifically in point. While-there seems to be some divergence of thought on the subject generally, it appears to be the better and majority rule that communications between officers of the same corporation in the due and regular course of the corporate business, or between different offices of the same corporation, are not publications to third persons. Biggs v. Atlantic Coast Line R. Co. (CA 5), 66 F.2d 87, citing many cases; Rodgers v. Wise, 193 S.C. 5, 7 S.E.2d 517; Prins v. Holland-North America Mortgage Co., 107 Wash. 206, 181 P. 680, 5 A.L.R. 451; George v. Georgia Power Co., 43 Ga.App. 596, 159 S.E. 756; Chalkley v. Atlantic Coast Line R. Co., 150 Va. 301, 143 S.E. 631; Lehner v. Associated Press, 215 Wis. 254, 254 N.W. 664. As said in Prins, supra, such an act by a corporation “is but communicating with itself.” If such is the correct rule,, then certainly a corporation which, through its regularly assigned agent, writes a letter in the due course of its business and places a copy in its own files, does not thereby publish the supposed libel to a third person. We so hold. To rule otherwise would penalize a business, individual or corporate, for performing a perfectly normal and proper business practice.

• We next consider the sending of •a copy of the letter to the Teamsters’ Local. Plaintiff concedes that this act was quali-fiedly privileged, but insists that he is entitled to a trial to permit a showing of malice and an abuse of the privilege. He cites Coots v. Payton, Banc, 365 Mo. 180, 280 S.W.2d 47; Laun v. Union Electric Co. of Missouri, 350 Mo. 572, 166 S.W.2d 1065, 144 A.L.R. 622; Boehm v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 710; and he insists that there was and is no absolute privilege. Construed in its technical sense, “absolute privilege” means that under certain circumstances, as in legislative and judicial proceedings, it is in the public interest to permit interested persons to speak freely and without fear of suit for defamation. The occasions are rather strictly limited, and in those instances even malice does not create liability. See the discussion in Laun v. Union Electric Co. of Missouri, 350 Mo. 572, 166 S.W.2d 1065, 144 A.L.R. 622. Occasions of qualified privilege occur much more often but the privilege is also much more limited. In Polk v. Missouri Pac. R. Co., 156 Ark. 84, 245 S.W. 186, the Court said, loc. cit. 188, 29 A.L.R. 220: “ ‘A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matter which, without such privilege, would be actionable. Upon such occasion and under such circumstances, although the matter communicated is defamatory and false, the law will not infer malice, but the existence thereof must be shown by some evidence beyond the falsity of the statements communicated.’ ” Our cases follow the same rule. Coots v. Payton, Banc, 365 Mo. 180, 280 S.W.2d 47; Boehm v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 710. Generally, it is for the court to decide whether the circumstances are such as to give rise to a qualified privilege, — at least, in the absence of any controversy as to the character of the surrounding circumstances and relationships. Chaloupka v. Lacina, 301 Ill.App. 173, 21 N.E.2d 909. In such cases, however, if a fact issue is raised on the existence of good faith or malice, or on whether or not the statements made exceed the exigencies of the situation so as to constitute an abuse of the privilege, such fact questions are for the jury. Coots, supra; Boehm, supra. If the question of qualified privilege were the decisive factor here, as plaintiff insists, we would be required to decide whether enough is alleged in this petition to raise an issue of fact on the questions of good faith, malice and excess of the requirements of the situation. Many petitions do present such fact issues, Coots, supra; some do not, and we have considerable doubt that the present one does, since the vital factual allegations are based on pleaded documents.

However, another principle is decisive here. We quote from Restatement of Torts, Ch. 25, § 583, p. 220 et seq., as follows: “General Principle. Except as stated in § 584, the publication of false and defamatory matter of another is absolutely privileged if the other consents thereto. * * * f. The privilege conferred by the consent of the person about whom the defamatory matter is published is absolute. The protection given by it is complete and it is not affected by the ill will or personal hostility of the publisher or by any improper purpose for which he may make the publication, unless the consent is to its publication for a particular purpose in which case the publication for any other purpose is not within the scope of the consent.”

In 33 Am.Jur., Libel 8¿ Slander, § 93, pp. 105-106, it is said: “It is generally held that the publication, of a libel or slander, invited or procured by plaintiff, or by a person acting for him in the matter, is not sufficient to support an action for defamation. Thus, the delivery of a letter of recommendation for a former employee to a person who, by his authority, requested it is not a publishing of any libel contained in it. Again, there is no publication where communications, concerning the cause of discharge, are made by an employer or his agent to one procured by a discharged employee to intercede for his, reinstatement.” See, also, S3 C.J.S. Libel and Slander § 95, p. 151, where it is said: “When no previous publication has been made, the publication is, as a general rule, privileged if the fact appears that the particular publication under consideration was procured or invited by plaintiff or his authorized agent, and if the answer of defendant does not go beyond plaintiff’s question; * * The true meaning of the principle seems to be that in such cases there is no actionable publication, or that the publication is absolutely privileged (though not in the technical sense of “absolute privilege”), which really amounts to the same thing.

We have found no Missouri cases actually announcing this principle. Applicable, at least by analogy, are: McDaniel v. Crescent Motors, 249 Ala. 330, 31 So.2d 343, 172 A.L.R. 204; Taylor v. McDaniels, 139 Okl. 262, 281 P. 967, 66 A.L.R. 1246; Wuttke v. Ladanyi, 226 Ill.App. 402. In McDaniel, the allegedly slanderous statements were made to the business agent of plaintiff’s union and in the presence of two other representatives of the defendant; it was held that the union representative was acting as plaintiff’s agent and that such a publication would not support an action for slander. In Taylor, an allegedly libelous letter concerning plaintiff was written by defendant’s Division Superintendent to a representative of the plaintiff’s Brotherhood, and the Brotherhood file containing the letter was sent to plaintiff’s local at his own request. It was held there that the Brotherhood official was plaintiff’s agent, it appearing that he had intervened concerning plaintiff’s discharge and that he had requested the information on plaintiff’s behalf and at plaintiff’s instigation. It was thus held that there could be no actionable defamation in writing and sending the letter initially, and also, that the same protection was to be accorded to the transmittal of the letter to the local lodge for a hearing, since plaintiff had requested it. In those cases it was indicated that the court did not reach any question of qualified privilege, because there had been no actionable publication. In Wuttke v. Ladanyi, supra, the court said, in part, loe. cit. 405-406: “It would be a dangerous precedent to hold that an employer could not, privately and confidentially, give an explanation bona fide to a discharged employee, or his representative, who has solicited an explanation of the discharge, without laying himself open to the charge of slander. The alternative would be that he must refuse to explain or must give some fictitious excuse, which would be unfair to the employee.”

Plaintiff has cited: Massee v. Williams (CA 6), 207 F. 222; Richardson v. Gunby, 88 Kan. 47, 127 P. 533, 42 L.R.A.,N.S., 520; Alabama & Vicksburg R.R. Co. v. Brooks, 69 Miss. 168, 13 So. 847; Brown v. Elm City Lumber Co., 167 N.C. 9, 82 S.E. 961, L.R.A.1915E, 275. The Massee case was decided largely on a question of qualified privilege; it also held that a publication to plaintiff’s agent was sufficient; but the facts there were vastly different from ours, and the case has little applicability. The essential holding was that the evidence at the trial disclosed that defendant had far exceeded the limits of his qualified privilege. Richardson, supra, seems wholly inapplicable; Brooks, supra, was decided on the proposition that the defendant’s charges exceeded the bounds of a qualified privilege; that rule was applied to defendant’s answer to an inquiry made by plaintiff’s attorneys. The case may be opposed in result to the stated theory of consent; however, it is a very old case and the doctrine of consent is not even discussed. In Brown, supra, the letter was held to be a legitimate answer to an inquiry or claim from plaintiff’s attorney, in which more “latitude” is allowed; the letter was held thus to be qualifiedly privileged, even though “published” by sending it to plaintiff’s attorneys. That case is of no help to plaintiff. We do not construe these cases (except possibly Brooks, 1891) as substantially opposed to the rule of consent as previously outlined. If they are, we do not choose to follow them.

Plaintiff’s counsel, in their reply brief, argue that the Missouri cases adhere to the theory of qualified privilege. Hoeffner v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 722; Boehm v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 710. True, we find no Missouri case expressly decided upon the theory of consent, but the doctrine is well established and it is applicable here. We have determined that, through the Union Contract, plaintiff consented to the sending of this letter to the Local. It was a communication which directly involved the employer-employee relationship. It was related strictly to matters covered by the contract. We hold that under these circumstances the statements therein were fully privileged. Plaintiff cites no case to the contrary; he contends that the result in such cases as Hoeffner and Boehm, supra, are opposed to the ruling here. As already indicated, however, those cases were decided strictly on the question of qualified privilege and the exceeding of the privilege; the doctrine of consent was not even discussed, and the circumstances were such as to make the application of that doctrine at least most doubtful, had it been an issue.

There are certainly no factual allegations here in the petition or in the documents pleaded to show or fairly infer any abuse by defendant of the circumstances of the consent, if that can be an issue. Counsel argue here that defendant was not required by the contract to write this letter and that it merely chose to do so. We have already touched on that subject; upon the disclosure of the facts defendant had the choice of discharging plaintiff immediately, and by a very similar letter, or of writing as it did. We have and do hold that its choice was lawful and proper. It is also urged that a consent did not include a consent to a defamation; the authorities already discussed hold that if plaintiff consented to the sending of a letter under such circumstances, he thereby took his chances on that score. We do not have a case where a defendant has obviously taken advantage of the situation to abuse and villify the plaintiff, outside the “exigencies” of the situation. There will be time enough to rule that point when and if we reach it.

Under these circumstances there is no point in discussing in detail the cases plaintiff has cited on the doctrine of qualified privilege. Finding no error in the order of dismissal, that judgment is affirmed.

All of the Judges concur.

      . All statutory citations will refer to this revision.


author: HOLLINGSWORTH, Judge.

text:
    Dorothy AKERS, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
    No. 49560.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 9, 1963.

      James Ruddy, St. Louis, for appellant.
    Morris A. Shenker and Frank B. Green, St. Louis, for respondent.
   HOLLINGSWORTH, Judge.

Plaintiff’s husband, Clarence Akers, was killed when an automobile driven by him was struck by defendant’s motor bus at the intersection of Twenty-first Street and Washington Avenue in the City of St. Louis. Defendant denied liability. Trial of this action, brought under the wrongful death statute, resulted in a verdict and judgment in her favor for the sum of $15,-250, from which defendant has appealed. The amount in dispute, exclusive of costs, exceeds $15,000. Jurisdiction of the appeal is, therefore, vested in this court. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.040 RSMo 1959, V.A.M.S.

The first contention here made is that the court erred in denying defendant’s motion for a directed verdict filed at the close of all the evidence and in thereafter denying its motion for judgment in accordance with its priorly filed motion for directed verdict for the reason that there was not sufficient evidence to support the verdict returned in favor of plaintiff under plaintiff’s given Instruction No. 1. That instruction submitted, as the only ground of recovery upon which plaintiff went to the jury, defendant’s negligence under the humanitarian doctrine in failing to stop its bus after having become chargeable with notice that plaintiff’s decedent was in a position of imminent peril.

The collision occurred on April 29, 1960, at approximately 5:30 p. m., on a clear, dry day, at which hour it was still daylight. Mr. Akers was driving his automobile southwardly on Twenty-first, a north-south street, which intersects Washington Avenue, an east-west street. Washington is 60' feet wide from curb to curb, marked with white lines along its center. There are three westbound traffic lanes north and three eastbound traffic lanes south of these white lines. Twenty-first is 36 feet wide from curb to curb north and south of Washington. A multi-story building is located on the northeast corner of the intersection of Twenty-first and Washington. The sidewalk on the north side of Washington is 9 feet wide; on the east side of Twenty-first it is 12^4 feet wide. A stop sign for southbound traffic on Twenty-first stands in the west curbline of Twenty-first 11½ feet north of the north curb of Washington. There is no stop sign for traffic moving along Washington at its intersection with Twenty-first.

David Bevel, called as a witness in behalf of plaintiff, testified: Aged 38 years, he is and was on April 29, 1960, employed by defendant as a bus operator, on which date he operated the bus that came into collision with the automobile driven by plaintiff’s decedent in the intersection of Twenty-first and Washington. It was the witness’ last “run” for that day. The bus driven by him was a Crystaliner, more modern than the other buses operated by defendant. It was 8 feet wide, 40 feet long; the windshield was 4½ feet in height and 8 feet in width. There was a 30-mile speed limit on Washington at the point here involved. He approached Twenty-first Street in the center lane of westbound traffic at a speed of 20 miles an hour. There was no traffic in front of or alongside him to interfere with his front or lateral view. He first saw the automobile that became involved in the collision when the front of the bus was back about 15 feet from the east curbline of Twenty-first. The automobile was then 8 to 10 feet north of the north curbline of Washington, moving about 20 miles per hour and it continued into the intersection at that speed. The witness swerved the bus, blew its horn, and applied his brakes but could not avoid the collision. The right front of the bus struck the left front fender and left front end of the automobile. The collision occurred near and a few feet north of the center of the intersection. At time of collision the automobile was travelling about 20 miles and the bus 15 miles an hour. Travelling at 15 miles an hour, the bus, under conditions here shown, could be stopped (including reaction time) with safety to the operator and the passengers thereon in 45 feet; at a speed of 20 miles per hour in 60 feet; at a speed of 25 miles per hour in 75 feet; at a speed of 30 miles per hour in 90 feet. In other words, the safe stopping distance (including reaction time) of a bus of the kind and model such as involved in this collision can be computed in feet by multiplying its speed mileage per hour by three.

Mrs. Norma Bixler, called as a witness for plaintiff, testified: She, homeward bound from her employment, boarded the bus at Eighth and Washington and, holding on to a vertical rod affixed to the inside of the bus, stood facing west alongside the front seat facing the aisle. As she thus stood, she looked forward through the windshield. Her view was unobstructed. She saw the Akers’ car as the bus approached Twenty-first Street. It was then a few feet north of the north curb of Washington, “easing” out into Washington, at a speed of about five miles an hour. The bus was then about a half block from Twenty-first Street, in the center lane of westbound traffic, trav-elling 30 to 35 miles an hour. She continued to watch the Akers’ car but did not know whether it changed its speed. She saw the collision. The right front of the bus struck the left front fender of the Akers’ car near its front end, the car door was thrown open, and the man in it was thrown out of the car and under the bus. She could feel the bump when the rear wheel of the bus ran over his body.

On cross-examination, Mrs. Bixler testified: The automobile was moving into the street (Washington) at approximately five miles per hour. She did not recall having been asked the questions at the first trial of the case, as read to her by counsel for defendant:

“Question: 'Let’s go back to when you first saw the car. How fast was it going then ? ’ Your answer was: T could not say.’ Question: ‘Pardon me?’ Answer: ‘No one could judge that speed unless you were standing on the corner where you could be there to see the car that close.’ Question: ‘So you don’t know that, is that correct?’ Answer: ‘That’s right.’ Question: ‘So the speed you actually know is the speed of the automobile at the time of the collision ? ’ ‘At the time of the collision’ ”
⅜ ‡ ‡ ⅜ ⅜ ⅜
“Q. Well, did you testify to those facts and statements. A. Yes, I did.
“Q. So last April, you testified you did not know the speed of the automobile when you first saw it, is that correct, ma’am? A. Yes, sir.
“Q. And today, it is your testimony that it was going about five miles an hour? A. I said it was moving into the street slowly, and then approximately at five miles per hour.”

Her further testimony on cross-examination was: The block between Twentieth and Twenty-first Streets is approximately 400, 450 feet. The bus was a half block or more, a minimum of 200 feet, from the intersection when she first saw the automobile. A remark made by a girl friend riding with her as to the speed of the bus caused her attention to be drawn to the automobile. The bus was then proceeding 30 to 35 miles an hour. She continued to watch the automobile and the bus continued at 30 miles an hour. The automobile had stopped before it moved into the street. She did not remember whether it was moving when she first saw its front bumper and part of its hood around the corner. That was when the bus was a half block away. The bus continued on. She was “pretty” sure that the automobile started from a dead stop. The bus was still a half block away and travelling at 30 to 35 miles an hour when she first saw the automobile. The collision occurred in the intersection just about the center line of Twenty-first Street.

On redirect examination, Mrs. Bixler testified: When the automobile started to pull out, the bus was halfway or more down the block. On recross-examination, she testified: When she first saw the automobile, it looked like it had been stopped and was moving slowly, but she could not say exactly whether it was stopped when she first saw it back two or three feet from the intersection. On further redirect examination, she testified: When the front end of the automobile got out where its front end crossed the north curbline of Washington Avenue, the bus, at that time, was a half block or more east of the intersection. On further recross-examination, she testified: When she first saw the automobile it looked like it was moving slowly into the street but she could not say for sure — did not actually know — whether it was then moving. On further redirect examination, she testified: When the automobile was moving across the (north) line of Washington, the bus was almost a half block east of the intersection.

The evidence adduced in behalf of defendant tended to show that the automobile operated by plaintiff’s decedent approached and, without stopping, entered and traversed Washington Avenue to the point of collision at a rate of speed, as variously estimated by several of defendant’s witnesses, of 20 to 40 miles per hour; and that the bus approached and reached the point of collision at a speed of from 15 to 30 miles per hour.

Defendant says that the submissibility of plaintiff’s case rests solely upon the testimony of Mrs. Bixler. That assertion is not entirely correct. Plaintiff’s case depends in part upon the testimony of defendant’s bus driver, Bevel. His testimony as to the distance in which the bus, proceeding at the several rates of speed therein by him enumerated, could be stopped has a direct bearing upon the submissibility of her case. In that connection, it is well to note, as stated in Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, 299: “And we are not treating with a case where a plaintiff has relied upon the testimony of one witness to prove an essential element of plaintiff’s case, and the witness testifies directly and definitely one way. In such a case the plaintiff may not have the jury disregard his only direct evidence as to the essential fact and find the fact is exactly the opposite on the basis of inferences from circumstances also stated in the testimony of the same witness. [Case cited.] ‘If A. put B. on the stand, and prove by him a certain state of facts, this does not preclude A. from putting C., D. or E. on the stand, and proving a different state of facts; but if A. puts B. on the stand as his only witness to prove a fact, and does pl;ove it, then he is precluded from impeaching B., or from otherwise inviting the jdry to disregard B.’s testimony.’ Rodan v. St. Louis Transit Co., 207 Mo. 392, 105 S.W. 1061, 1066.” See also Kickham v. Carter, Mo., 314 S.W.2d 902, 905.

Defendant does not challenge the law as therein stated. Its contention is that it was essential to plaintiff’s case that she produce substantial evidence of the location and speed of the automobile when the bus approached and entered the intersection; that if the direct testimony of Mrs. Bixler be taken as true, then “[u]nder such evidence a humanitarian case on failure to stop could be calculated.” And, further: “If the automobile was moving at the time the bus was one-half block away then the jury could have found that ‘thereafter’ plaintiff came into imminent peril. However, if the automobile was stopped at the time the bus was one-half block away then the plaintiff has failed to place the position of the bus at a time when the automobile commenced to move out into the intersection. The location of the striking vehicle at the time peril arose is an essential element in making a humanitarian case on failure to stop as submitted under Instruction No. 1.” Defendant then insists that Mrs. Bixler’s testimony, considered in its entirety, “leaves the point of the location of the striking vehicle when imminent peril arose in doubt” ; and that “plaintiff cannot permit the jury to speculate on the question of whether plaintiff’s deceased came into a position of peril when the bus was 225 feet away or 15 feet away. If plaintiff’s deceased was going five miles per hour when the bus was 225 feet away, then at some point he could come into a position of peril. However, if the automobile was stopped when the bus was 225 feet away, then the jury cannot speculate on the position of the bus when plaintiff’s deceased started up from a stopped position. Obviously, the plaintiff must show that the auto came into a position of imminent peril at a time when the driver of the bus could still stop and thus avoid the collision.” (Emphasis that of defendant’s counsel.)

Defendant relies upon the general rule stated in Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647: “Where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting, one version thereof tending to prove the issue, the other tending to disprove it, with no explanation of the contradiction, and no other fact or circumstance in the case tending to show which version of the evidence is true, no case is made, and the jury should not be permitted to speculate or guess which statement of the witness should be accepted. On the other hand, if, in such a case, the conflicting and contradictory statements of the witness are reasonably explained, or if there are other facts and circumstances in the case tending to show which story of the witness is true, and from a fair consideration of all the facts and circumstances in evidence a jury could reasonably determine which statement of the witness should be accepted as true, then the credibility of the witness and the weight to be given to his testimony are questions for the jury.”

Mrs. Bixler’s testimony, taken literally, is conflicting as to whether, when she first saw the automobile, it was stopped or moving. However, except to the extent that conflicting statements made by her in that respect could affect the credibility of the remainder of her testimony, it is im material whether the car moved into Washington from a stopped position taken just prior to entering or whether it moved into Washington without stopping. The material facts are the location and speed of the bus when the car came into a position of imminent peril; when and where the bus driver, in the exercise of the highest degree of care, became chargeable with knowledge of that fact; and whether thereafter, in the exercise of the highest degree of care, he at that time and with the means at hand, could with reasonable safety have stopped the bus in time to have averted the collision. As to those facts, there is no uncertainty in Mrs. Bixler’s testimony that when she first saw the automobile, it then or immediately thereafter was “easing” out into Washington, at which time defendant’s bus was almost one half the length of a 400-to-450-feet-long block east of and approaching the intersection at a speed of 30 miles an hour; and that the bus, proceeding at 30 to 35 miles an hour, the speed of which remained undiminished, collided with the automobile near the center of the intersection, at which moment the automobile was travelling at five miles an hour. Unless that testimony, viewed in the light of all of her testimony, is so shot through with contradiction as to render it valueless, its probative weight and value is for the jury. Dawson v. Scherff, Mo., 281 S.W.2d 825, 830. We are convinced that Mrs. Bixler’s testimony, considered in its entirety and viewed in the light most favorable to plaintiff, reasonably supports a finding by the jury that plaintiff’s decedent came into a position of imminent peril as his automobile, travelling at a speed of approximately five miles an hour, “eased” into Washington Avenue, of which said peril defendant’s bus operator, in the exercise of the highest degree of care, then and there became chargeable with knowledge; and that at said time ■defendant's bus was being operated westward at a speed of 30 miles per hour on Washington at a point “almost” 200 feet east of the intersection, and could have been stopped (including reaction time) with safety; that defendant was, therefore, negligent; and that its said negligence, in whole or in part, directly caused the collision and plaintiff’s decedent’s death. Indeed, defendant’s counsel concedes the validity of such a finding, once Mrs. Bixler’s testimony is determined not to be so conflicting as to be self-destructive. The evidence made a submissible case of defendant’s negligence as hypothesized and submitted under plaintiff’s Instruction No. 1.

Defendant’s next contention is that plaintiff’s verdict-directing instruction No. 1 improperly assumed the controverted fact that plaintiff’s deceased came into a position of imminent peril and improperly assumed the controverted fact that defendant was negligent. The instruction, in material part, reads:

“* * * [A] nd if you find that Mr. Clarence Akers was operating his 1950 Pontiac automobile southwardly on 21st Street and entering Washington Avenue; and if you find that a collision occurred between said westbound motor bus and said southbound automobile within the intersection of Washington Avenue and 21st Street, and that prior to such collision Mr. Akers and the automobile being operated by him were in a position of imminent peril and danger from a collision between the said southbound automobile and the said westbound motor bus; and if you find that defendant’s bus operator in charge of operating said motor bus saw, or by the exercise of the highest degree of care could have seen the deceased, Clarence Akers, and the automobile operated by him in the said position of imminent peril and danger of being struck and collided with by said motor bus, if you so find, in time thereafter, by the exercise of the highest degree of care, and by the use of appliances and means available to him on said motor bus and with reasonable safety to himself, to defendant’s said motor bus, and to all passengers riding thereon, to have, by the exercise of the highest degree of care, stopped said motor bus, if you so find, and by so doing could have avoided said collision, and that defendant’s operator failed to do so and was thereby negligent, if you so find, and that such negligence, if any, caused or directly contributed to cause the said Clarence Akers to be injured and killed, * *

It is difficult to conceive that the mere coming of the Akers’ car into a position of imminent peril was a controverted fact in the case. In both his opening statement and during the trial, counsel for defendant expressly admitted that plaintiff’s decedent’s death was directly caused and produced by the collision. Insofar as we can see, it is an indisputable fact that his car (and, for that matter, the bus also) came into a position of imminent peril at some point prior to the collision. Neither does the instruction assume that defendant was negligent. It expressly hypothesizes as a prerequisite to a finding in favor of plaintiff the facts which hereinabove we have determined warranted the verdict returned by the jury. The instruction may not be a model but, as to the criticism here made of it, we believe and find that it fairly hypothesizes a finding of facts, supported by competent evidence adduced in plaintiff’s behalf, which, when believed by the jury, warranted the verdict so returned. The contention is overruled.

Defendant’s final contention is: “Five of the twelve jurors procured seats on the jury by making material misrepresentations as to their qualifications in that they intentionally concealed the fact that they had a claim for personal injuries. The law infers from such deceit that they were biased against the party deceived. Therefore, defendant was deprived of its constitutional right to have its case tried before a panel of twelve impartial jurors. The trial court abused its discretion in failing to declare a mistrial when informed of the concealed claims during the course of the trial, and again abused its discretion in failing to grant defendant a new trial on appellant’s motion therefor after verdict.”

If the evidence directly or inferentially shows that the charge above made against said jurors, or either of them, is well founded, it follows that the trial court erred in denying defendant’s motion for mistrial, which was duly preserved and amplified in its motion for judgment filed at the close of the evidence and after-trial motion for judgment in accordance with its motions for a directed verdict, or, in the alternative, for a new trial. On the other hand, it is also the law that if, upon due consideration of the charge levelled against either of the jurors, as revealed by the evidence and all other facts and circumstances coming judicially to his attention in this case, and all inferences reasonably to be drawn therefrom, no abuse of discretion on the part of the trial judge in ruling the contention above set forth against defendant is shown, that ruling should not be disturbed. Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, 462-464; Davis v. Kansas City Public Service Co., Mo., 233 S.W.2d 679, 684-685. In determining the charges here made the trial judge, of course, is not bound by the testimony of these witnesses. It was his duty and prerogative to determine the truth or falsity of them in the first instance. It is our duty on appeal to determine whether he abused the discretion so vested in him. Woodworth v. Kansas City Public Service Co., Mo., 274 S.W.2d 264, 271.

On voir dire examination the jurors were questioned at length by counsel for both parties concerning any claim or lawsuit any of them or any members of their families ever had against any person or corporation for either personal injuries or property damage. Some replied affirmatively and, upon further development of the nature of such claim, its disposition, etc., some were accepted, some were excused, and other veniremen were called to replace those excused. Further details of the questions propounded would unduly lengthen this opinion. Suffice to say that they were sufficient to require of each of the persons interrogated a full and complete disclosure of any claims or lawsuits in which he or any member of his family was or ever had been involved, to the full extent of his memory and his understanding of the meaning of terms “claims” or “lawsuits” against any person, corporation, be such person or corporation his former employer, stranger, or otherwise. None of the five jurors whose qualifications are herein challenged responded to any of the questions propounded. It is to be assumed therefore that their answers, if made, would have been in the negative.

Trial began on Wednesday morning, January 24th. On the morning of the 26th, in chambers, counsel for defendant announced that an investigation made by St. Louis Index Bureau showed that the five jurors hereinafter named had asserted claims. Following an extended colloquy, the court announced: “In other words, I am not certain that this was done intentionally at this time, and until we go into it more thoroughly, * * *, this is the second time this lady has had to go through this ordeal, I am inclined to go ahead and overrule the motion for a mistrial, but I tell you * * * if it is shown that these jurors intentionally deceived the Court, that the defendant’s motion for a new trial, if it is filed, and if they get an adverse verdict will be given a very good deal of consideration.”

At the hearing of the motion for new trial, the five jurors testified at length, both on direct and cross-examination. A resume of the testimony developed from each of them follows:

Juror Koehler: In May, 1956, as he left the home of Mrs. Ringer, he fell down the front steps and sustained a little bruise and broke his glasses. He went back into her home, stayed a few minutes and then went to a doctor; saw him once or twice. He made no claim against her but was paid $25.00 by an insurance company. He remembered being asked questions as to claims but he honestly did not recall this matter at that time.

Juror Stike: In 1958 he worked for St. Louis Fixture Company. He remembered having been asked on voir dire examination as to claims. About 1958, in pulling a nail, the hammer slipped and hit him on the eyelid and he went to the company doctor three or four times, but he never missed any work. He turned in no claims but was paid workmen’s compensation in the sum of $50.00. He just signed his name and received a check. The reason he got the compensation was that he had a little scar. The matter had slipped his mind as he was answering the questions asked him on voir dire — it was so minor.

Juror Pelech: He was born in Yugoslavia, has lived in the United States 12 years. He is now and has been for eight years an employee of Melman Fixture Company. He remembered the questions asked him on voir dire. About eight years ago he was injured at his work. “They” sent him to a doctor, five or six times. He was paid workmen’s compensation in the sum of $270. He did not put in a claim, some gentleman came to see him, gave him a ticket and told him he had to go to the Workmen’s Compensation Bureau in the Buder Building. In July, 1955, the lady who thereafter became Juror Pelech’s wife was involved in an automobile accident in Miami, Florida. His car, in which his fiancee was riding, had a flat tire and a truck ran into the rear of his car. Her neck was injured and she was in shock. The “company” asked her how she felt. “I say ‘her back is hurt’ and they want to send her to doctor, I said, ‘it’s not too bad’ and I think they gave her fifty or seventy-five dollars, something for that.” She did not go to a doctor.

“Q All right. The time, Mr. Pelech, when you were asked, sir, whether you or any member of your family had ever had a claim against anyone, sir, did you say anything about your claim that you had down at work? A I did not remember, to tell you the truth, if you wouldn’t remind me I wouldn’t know anything about the claim, because actually, I didn’t put any claim in.
“Q All right. Did you say anything about the- — -your wife being paid that seventy-five dollars down in Florida? A To tell you the truth, I did not pay any attention — not attention, I did not remember anything about that accident, because it was so long ago, and I didn’t put any claim in.”

Juror Tucker: He has been employed by Curran Construction Company for about a year. Before that he worked for Elliott Construction. Four or five years ago, while at work, a piece of steel weighing about 10 or 12 pounds fell on his foot and fractured his toe. It hurt him about a month but he only lost about a week of work. He went to a chiropractor, the boss’ son, and received two treatments, no cast was placed on it. The doctor told him to soak it in water. He was paid compensation for one week. His regular wage was $3.60 an hour. He made a claim for workmen’s compensation but had no lawyer and does not remember what he was paid.

“Q Now, will you tell us, * * * when these questions were asked, generally, of the panel, how come you did’nt tell us about it?
******
“A In fact, I had forgot about it.”

Juror Mueller: In July, 1957, while attending a St. Louis Cardinal baseball game, sitting in the bleachers, she was hit by a “home run ball”, didn’t see it coming and was dazed. She went to the first-aid room and saw a nurse, and later went to her doctor. She had a knot on her head as big as a baseball for about two weeks and trouble with an eye, but does not remember which eye. That trouble left when the lump on her head went down. She was not confined in a hospital, but had X rays taken. Her doctor told her to send the bills to the Cardinal office and they must have sent them to the insurance company. No one ever came to see her and she had no lawyer. She sent the bills and they came back. Some one at the baseball park told her that she entered the park at her own risk, that they were not liable. She pursued the matter no further. When interrogated on voir dire, she had forgotten all about the matter. Her doctor was concerned about the X rays he had taken. She did not consider it a claim. She thought the questions asked her on voir dire meant “where they had a lawyer and was taken into court.” If she had thought the questions referred to a matter such as hers, she would have told about it.

Careful reading of the 43 pages of transcript covered by the testimony of these witnesses, each of whom was questioned out of the presence of the others, reveals nothing that smacks of dissembling on the part of any of them. For aught that appears, insofar as the transcript shows, when the details of the casualty priorly suffered by each of them (or, in one instance, by a lady who later became the wife of one juror) were called to the witness’s attention by counsel for defendant, he or she forthrightly and to the best of his or her ability undertook truthfully to answer every question propounded. None of the injuries sustained would appear to be of more than transitory concern to any of these witnesses. But, more important is the fact that the trial judge, who heard and observed them during voir dire examination, throughout trial on the merits, and on motion for new trial and who, as the record shows, gave the matter close and concerned consideration, absolved them from any intent to deceive and saw no evidence of prejudice on the part of either juror against defendant. Finding no abuse of the discretion exercised by the trial judge in so determining the contention here made, we conclude that it cannot be sustained.

The judgment is affirmed.

All concur.