author: HOUSER, Commissioner.

text:
    Rosa Lena HART and Harry Hart, Respondents, v. Janies C. STEELE, Appellant.
    No. 52549.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.

      Harold W. Barrick, New London, for respondents.
    Carstarphen, Harvey & Wasinger, Hannibal, for appellant.
   HOUSER, Commissioner.

Rosa Lena Hart and her husband Harry brought a malpractice action against Dr. James C. Steele, a surgeon. Following a jury verdict for defendant the court, considering that it had improperly excluded certain evidence offered by plaintiffs, sustained plaintiffs’ motion for a new trial. Defendant appealed.

The parties have joined issue on the question of the admissibility of the excluded evidence but before reaching that point we consider first appellant’s point of chief insistence, that the trial court erred in failing to direct a verdict in his favor; that plaintiffs not only failed to make a submissible case but also affirmatively disproved their own case.

The negligence charged was that of puncturing Mrs. Hart’s left kidney tube (ureter) in the course of a hysterectomy.

After the operation Mrs. Hart experienced a normal postoperative recovery for several days. Her temperature and abdominal distention subsided and she was recovering until eleven days after the operation, when her temperature elevated and her abdomen began to swell. Dr. Strong was called in consultation on the twelfth day and Dr. Clisham was called in on the thirteenth day. Mrs. Hart by then was acutely ill. Dr. Strong’s first impression was that she had either a wound abscess or a uretal opening or injury with possible extravasation of urine. After doing a retrograde pyelo-gram and taking X rays, a diagnosis of defect in the ureteral wall was made, and a second operation was decided upon. There is no question that after the hysterectomy was performed a fistula or opening in the ureter either existed or developed, through which urine escaped into the abdomen, necessitating the second operation. Dr. Clisham assisted Dr. Steele in performing the second operation, draining accumulated urine and inserting a catheter. Following the second operation the fistula healed and Mrs. Hart experienced a normal recovery.

Plaintiffs’ theory was that in suturing during the hysterectomy defendant negligently put a stitch in the ureter. They introduced a hospital record written by a doctor, an X-ray technician, which stated “Apparently there has been an injury to the ureter at the time of surgery.” Plaintiffs’ only evidence that defendant put a stitch in the kidney tube came from plaintiff Harry Hart and Mrs. Hart’s parents, who testified that in their presence defendant stated that he “had a stitch in the kidney tube and would have to operate,” and Mrs. Hart’s testimony that during the pyelogram procedure she overheard Dr. Clisham say to Dr. Steele, “Jim, here is your trouble. You’ve got a stitch in the kidney tube.”

Plaintiffs called Dr. Steele to the stand. He described Mrs. Hart’s condition and symptoms before the operation; the operation itself, which was “perfectly normal,” and stated that he had performed in excess of 300 hysterectomies, in none of which the patient developed an opening in the kidney tube and in none of which he ever passed a suture through the kidney tube. It was his opinion that the opening in the kidney tube was caused by a rare complication of her disease of endometriosis; that when the ovaries are removed and the hormones are thus withdrawn this causes a wasting of the tissues and the formation of scar tissue which may involve a blood vessel to the ureter, and that this results in death (necrosis) of the tissue in the wall of the ureter which would then cause a fistulous opening. He stated that if she had had an opening in the kidney tube at the time of the first surgery she would have developed her trouble immediately, but her troubles did not start until the eleventh day after the operation, which would be about the usual length of time for a fistula to develop if caused by the drying up of endometriosis implants.

Plaintiffs called Drs. Strong and Clisham to the stand as their witnesses. These doctors did not support but contradicted plaintiffs’ theory of the case. Dr. Strong testified positively that “there wasn’t a stitch put through this one.” These two doctors testified that the fistula was caused by a necrosis of the wall of the ureter, which they explained as follows: Mrs. Hart was suffering from endometriosis, which is a condition in which tissue shed during the menstrual cycle regurgitates or passes out through the Fallopian tubes and scatters throughout the abdomen. Fed by hormones from the ovaries these little implants increase in size and cause pain. A hysterectomy is an accepted method of treating and curing endometriosis. When the ovaries are removed, thereby cutting off the supply of hormones, the implants decrease in size or “dry up,” forming scar tissue in the process. Ordinarily this does not cause trouble but in Mrs. Hart’s case a rare complication occurred, in that the scar tissue interfered with the blood supply to the ureter, causing necrosis of the wall of the ureter, resulting in the fistula. Both of these doctors were also of the opinion that the fistula could have been caused by the diminishing of the blood supply to the ureter, causing necrosis, occurring as a natural and normal consequence of the hysterectomy.

Plaintiffs also called a Dr. Dwyer to the stand. On the basis of hypothetical questioning, he was of the opinion that the hole in the ureter was not due to endometriosis. In answer to a hypothetical question which assumed that in suturing the patient a stitch was passed through the kidney tube Dr. Dwyer gave his opinion that the stitch would account for the escape of urine into the abdominal cavity.

Defendant’s case in chief consisted of his own testimony and that of Dr. Burns, who assisted Dr. Steele in the performance of the hysterectomy. Dr. Burns confirmed the opinions of Drs. Steele, Clisham and Strong that the fistula was caused by necrosis resulting from interference with the blood supply due to scar tissue and shrinking up or atrophy of the implants. As he explained it, atrophy interferes with blood supply, necrosis sets in, the wall becomes soft and jellylike and a leak develops much like a soft spot in a garden hose will give way. Dr. Burns also confirmed their view that necrosis could be caused by the disturbance of the blood supply as a natural result of surgery. He categorically and positively denied that a stitch had been passed through the ureter and testified that if it had the patient would not have continued to improve for several days after surgery, bjut would have remained sick, her temperature would have continued to be elevated and her abdomen would have continued to distended. The fact is, however, that dtfe got better after the hysterectomy, her temperature became normal, and the postoperative distention of her abdomen went away. It was not until eleven days after the first operation that these symptoms returned. He testified that it would take from 7 to 14 days after surgery for the fistula to develop by the cutting off of the hormone supply. Dr. Burns testified that the surgery was performed in a good manner, a “very meticulous manner”; that it was a routine hysterectomy; that “even the best gynecologic surgeons can put a stitch through the ureter.” When Dr. Steele took the stand in his own behalf he denied having made the admissions testified to by Harry Hart and Mrs. Hart’s parents; denied that Dr. Clish-am had made the statement attributed to him, and denied that he had placed a stitch through the ureter. He testified that if he had done so it would have caused a fistula; that leakage would have developed within 24 to 48 hours and the patient would have become ill immediately following the first operation; would have gotten worse instead of better; her temperature would have stayed up, and the postoperative distention would not have subsided. Asked whether, in case a stitch had been placed in the kidney tube, the surgery would have been below the level of skill which he as a gynecologist is expected to bring to an operation such as a hysterectomy he answered in the negative, stating that frequently ureters are damaged, and stitches placed by the most skillful gynecologists.

Defendant was required to use and exercise that degree of care, skill and proficiency which is commonly exercised by the ordinarily careful, skillful and prudent surgeon engaged in similar practice under the same or similar conditions. If a surgeon possesses the requisite skill and exercises the requisite degree of care he is not liable in a malpractice action for an honest mistake, and having so acted is not liable merely because of an unexpected or bad result. In an action for malpractice based on specific negligence no presumption of negligence is indulged in by reason of an adverse result from medical treatment. Plaintiff has the burden of establishing negligence on the part of the surgeon. These elementary principles were reviewed in Fisher v. Wilkinson, Mo.Sup., 382 S.W.2d 627; Raus-chelbach v. Benincasa, Mo.Sup., 372 S.W.2d 120; Williams v. Chamberlain, Mo.Sup., 316 S.W.2d SOS, and Mann v. Grim-Smith Hospital & Clinic, 347 Mo. 348, 147 S.W.2d 606.

To make a submissible case of negligence in this case plaintiff had the burden of establishing (1) that defendant placed a stitch in the ureter; (2) that placing a stitch in a ureter in the course of a hysterectomy constituted a failure to exercise that degree of care, skill and proficiency which is commonly exercised by the ordinarily careful, skillful and prudent gynecologic surgeon under the same or similar conditions, and (3) that the placing of the stitch in the ureter caused the extravasation of urine with its injurious consequences.

The testimony of Mrs. Hart’s husband and parents, that defendant told them he had a stitch in the kidney tube, was sufficient evidence to warrant submission of element (1) above. Hague v. Threadgill, Mo.App., 236 S.W. 895 [3]; Stratton v. Barnum, Mo.App., 263 S.W. 476 [3]; Dees v. Pace, 118 Cal.App.2d 284, 257 P.2d 756.

There was no evidence, however, to warrant the submission of element (2) above. Plaintiff offered no expert medical testimony on the question whether the act of placing a stitch in the ureter in the course of a hysterectomy would constitute a failure on the part of the defendant to measure up to the standard of care required of gynecologic surgeons. In the great majority of malpractice cases “a submissible case may only be made by expert medical testimony for otherwise a jury may not know (or guess) whether the defendant’s acts did or did not conform to the required standards. Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600; McDonald v. Crider, Mo.App., 272 S.W. 980; Hopkins v. United States, D.C.W.D.Mo., 152 F.Supp. 473. In the case last cited the court said in part, loe. cit. 476, 477: ‘A plaintiff in a malpractice action assumes a very heavy burden where the basis of recovery is predicated on an attack on the technique and skill exercised by an operating surgeon or on a charge that he failed to exercise reasonable-judgment. In the absence of most unusual circumstances it is a burden that cannot be discharged in normal course by lay testimony. * * * When plaintiff fails to-show by calling an expert that the care given by defendant and its agents falls below the required standard of the school of medicine to which he belongs, and fails to show that Dr. Brackett neglected to use standards of skill and treatment required of others in the area, then plaintiff has failed in her burden.’ The cases where a physician or surgeon has left foreign objects in operative cavities fall into an entirely different class. See: Null v. Stewart, Mo., 78 S.W.2d 75; Sontag v. Ude, 191 Mo.App. 617, 177 S.W. 659 (both cited by plaintiff); Hilton v. Mudd, Mo.App., 174 S.W.2d 31; Ingram v. Poston, Mo.App., 260 S.W. 773; Johnston v. Rodis, D.C.D.C., 151 F.Supp. 345. There, proof of such fact alone is generally held to establish a prima facie case of negligence, and the defendant is put upon his proof, although negligence is still the ultimate test. Hilton v. Mudd, Mo.App., 174 S.W.2d 31.” Wil(liams v. Chamberlain, Mo.Sup., 316 S.W.2d 505, 511; Fisher v. Wilkinson, supra, 382 S.W.2d 1. c. 631, and authorities cited.

This rule is applicable in this particular type of malpractice case. In Brear v. Sweet, et al., 155 Wash. 474, 284 P. 803, a surgeon who removed a uterus was charged with negligently cutting the patent’s bladder during the operation, making a hole which caused leakage. Plaintiff testified that after the operation the surgeon admitted to her that he had “cut the bladder,” but offered no medical testimony on the question. The court upheld a judgment for defendant notwithstanding the verdict for plaintiff, saying, 284 P., 1. c. 804 [2] : “The law is well settled that facts such as these relating to difficult operations call for knowledge far beyond the ordinary layman, and that resort must be had to the testimony of expert witnesses for light on the question whether or not the respondent has been guilty of negligence. [Citing cases.]”

In Modrzynski v. Lust, Ohio App., 88 N.E.2d 76, a surgeon who performed a hysterectomy was charged with negligently puncturing the bladder during the operation, causing a fistula and leakage. Plaintiffs, husband and wife, both testified that the surgeon admitted to them “I nipped her bladder,” but they offered no medical evidence in support of their theory of the case. The court held that it was the duty of the trial court to grant defendant’s motion for judgment, saying, 88 N.E.2d, 1. c. 77: “By the great weight of authority, when the physician’s want of skill or lack of care in the treatment of a patient or in conducting a major operation is in question, expert medical testimony is necessary to establish the claimed negligence of the physician and that such negligence has some causal connection with the claimed injury. What is or is not standard practice and treatment in a particular case, or whether the conduct of the physician measures up to the standard is a question for experts and can be established only by their testimony.

“The only exception to such rule is that where the want of skill or lack of care is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it, expert evidence is not essential.”

In Lince v. Monson, 363 Mich. 135, 108 N.W.2d 845, defendant surgeon operated for the removal of an ovary, and later operated for lysis of bowel adhesions. En-dometriosis was encountered. Apparently a catgut suture was stitched in the ureter. There was “no medical testimony that defendants’ treatment and handling of the case was not in accord with standard and usual practice of skilled doctors in the community.” The court held that “the ordinary layman is not equipped by common knowledge and experience to judge of the skill' and competence of that service and determine whether it squares with the standard’ of such professional practice in the community. For that, the aid of expert testimony from those learned in the profession involved is required.” 108 N.W.2d 1. c. 847. And see Siverson v. Weber, 57 A.C. 881,22 Cal.Rptr. 337,372 P.2d 97.

Even where an operation is simple a plaintiff is required to “offer expert testimony that the procedure followed constituted a failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession in good standing practicing in similar localities * * * in order to make a submissible case.” Aiken v. Clary, Mo.Sup., 396 S.W.2d 668, 675. The requirement is not to be relaxed in the case of a major operation such as a hysterectomy, which is a complicated procedure of a highly technical nature. The necessity of stitching in the area of the ureters, their proximity to the organs directly involved, the difficulty of seeing the organs, the methods of avoiding such an eventuality, the likelihood of accidentally taking a stitch in the ureter in the course of a hysterectomy, etc. are not matters on which lay jurors are informed or knowledgeable. Whether the inadvertent taking of a stitch in a ureter in the course of such an operation is careless is not a matter that is so apparent as to be within the ability of the average layman to decide. In such case highly trained medical experts, knowledgeable in the field of gynecology, are needed to aid the jury in reaching a conclusion on whether this would violate the standards expected of ordinarily careful, skillful and prudent gynecologic surgeons operating under similar conditions. As stated in Lince v. Monson, supra, “Careless professional practice must not be made immune from redress at law. This is imperative for the protection of the public. That same consideration, however, dictates that no legal barriers be erected against a doctor’s proceeding, in emergency or otherwise, or his judgment directs and skills permit, for saving the life or health of the patient, without fear that his professional judgment and action shall be subjected to the test of unlearned lay judgment without the guidance of professional testimony as to compliance with professional standards and practice in the communty.” 108 N.W.2d, 1. c. 849 [6, 7],

For failure to introduce evidence in support of element (2) above there was a failure of proof and the court should have directed a verdict for defendant. In this situation we need not discuss the third element or explore the procedural questions which have been raised and briefed. The order granting a new trial is reversed and the cause is remanded with directions to enter judgment for defendant.

WELBORN and HIGGINS, CC., concur.

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

HENLEY, P. J., and HOLMAN, J., concur.

SEILER, J., dubitante.

STORCKMAN, J., not sitting when cause was submitted.


source: Caselaw Access Project

author: EAGER, Judge.

license: Public Domain

text:
    Joe JEFFERSON, Appellant, v. Susan B. BIGGAR, Respondent.
    No. 51932.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.

      Robert L. Shirkey, Kansas City, for appellant.
    Thomas J. Leittem, John H. Altergott, Jr., Shughart, Thomson & Kilroy, Kansas City, for respondent.
   EAGER, Judge.

This is an action for personal injuries arising from the collision of two automobiles. The collision occurred in the intersection of 71st Street, otherwise known as Gregory Boulevard, and the northbound lanes of Ward Parkway in Kansas City on the morning of June 3, 1964. Ward Parkway is a divided road with a wide medial strip. The verdict was for defendant on plaintiff’s claim and for plaintiff on defendant’s counterclaim, which was merely for property damage. Only plaintiff has appealed, and since he sought to recover $25,000, we have jurisdiction. No question is raised on the sufficiency of the evidence. The two points of appellant’s brief concern the alleged incompetency of certain evidence and the giving of defendant’s instruction on contributory negligence.

Plaintiff was a janitor and maintenance man for a real estate firm located near 63rd and Brookside, on the Brookside Plaza; he also did maintenance work in apartment buildings operated by it, and he was on his way to such a building at the time of this collision. Defendant was a housewife and she was transporting seven school children north on Ward Parkway. At this point Gregory was 40 feet wide from curb to curb; the northbound lanes of Ward Parkway (consisting of three lanes) were 30 or 32 feet wide. The intersecting curbs were rounded, so that Gregory expanded as it entered the Parkway. A pedestrian crosswalk on Gregory was set back perhaps 25-30 feet from the east curb of Ward Parkway. There were residences all along the south side of Gregory and trees in the space between the curb and the sidewalk both on Gregory and Ward Parkway; the residence and yard on the southeast corner were raised a few feet above the street level and there was shrubbery and also at least one tree in the yard on the Gregory side. The intersection was and is normally controlled by traffic lights which are plainly visible to traffic approaching from all directions. Plaintiff was driving a 1957 Chevrolet station wagon, defendant a 1964 Chevrolet station wagon.

According to undisputed evidence from the Kansas City Power and Light Company, the traffic lights at this intersection were not functioning from 9:03 to 9:45 a.m. on that day, due to some malfunction in the circuit covering that area. Thus, the precise time of the collision was material. Plaintiff testified that he “checked out” of his place of employment at 9:30 to go to a specific job; that he picked up some material in the basement, got his car from the lot, traveled on Brookside Road to Gregory, and that in his best judgment he reached the intersection at 9:45. He further testified: that he was traveling (west) slightly to the right of the center line of Gregory, that there were no cars ahead of him, and that he saw from “a hundred feet” the green traffic light; that he then “slightly looked to my left,” (the direction from which defendant came) but couldn’t see very far “for this blind corner,” and he saw no cars; he then “slightly looked to my right,” then looked ahead “at the light that was green,” did not look back to his left, and “kept on going” across at about 25 miles an hour. He did not recall seeing defendant’s car prior to the collision. Plaintiff’s car came to rest on the medial strip, and he testified that he did not remember anything else clearly for three days; he further testified that he did not swerve, did not apply his brakes, sounded no horn, and did not slow down. He related in some detail his prior activities to explain the reason why he thought the collision occurred at 9:45.

The defendant’s version of the affair, as expected, was substantially different. She testified: that “to her knowledge” the collision occurred between 9:15 and 9:30; that from a distance of about two blocks south of the intersection she saw that the traffic lights were “out”; that she looked again before she entered the intersection and that the lights were still out; that a car in front of her turned right on Gregory and she slowed; that she looked to her right on Gregory and saw no car, this apparently from a point about three car lengths south of Gregory; that she entered the intersection at 15-20 miles an hour and was about half way through it when she saw plaintiff’s car “off the front corner” of her car; that she was afraid to turn left, thinking that plaintiff might hit the rear of her car where the seven children were; that she applied her brakes fully and immediately and almost stopped; that just before the impact plaintiff “jerked up and looked at me,” turned to his right and went off into the parkway (medial strip); that she moved her car out of the intersection. She was uncertain as to the source of a statement in a report of accident made by her to the effect that the collision occurred at 9:45 a.m.; she stated that “they” probably took it from the police report, and explained in detail (from a recital of the school activities) why she believed it occurred earlier.

Manfred W. Guenther, an officer of the Kansas City Police Department, called by the plaintiff, arrived at the scene at 10:00 a.m., having received the call at about 9:48; he talked to plaintiff and defendant and to two witnesses whose names and addresses he took; he listed the time of the accident as 9 :45, but stated that this was his own estimate from talking to the drivers and the witnesses, and that he could not recall definitely whether he asked the defendant that question; that defendant stated that she first realized the danger when plaintiff was one car’s length away and when she was traveling at about 15 miles an hour; that plaintiff told him that he had a green light and did not “realize any danger prior to the impact”; that plaintiff’s car left no skid-marks ; that defendant’s car left 12 feet of “actual skid,” or 22 feet of “overall” skid, which led to a point 39 feet north of the south curb of Gregory and four feet west of the east curb of Ward Parkway, before breaking to the left; at one time he testified to debris or “shake-down” at that location but later indicated that he had fixed the point only by skidmarks. On cross-examination, after the officer had given the names and addresses of the two witnesses whom he had interviewed, he was asked whether he had asked them whether the traffic lights were “out or functioning”; this was objected to as hearsay and for the reason that plaintiff would have no right of cross-examination; the objection was overruled and the witness replied that “Both of the witnesses stated to me that the lights were not functioning, that they were completely out at the time the accident occurred,” and that his report reflected this.

Both of the witnesses referred to by the officer appeared and testified for the defendant. One, Robert L. Cunningham, had stopped in the medial area, going east on Gregory, waiting for the traffic to clear. He testified: that he actually saw the collision; that all the traffic lights were out; that he saw plaintiff’s car but did not pay much attention to it until he saw that it was not going to stop; that he also saw defendant’s car coming north and intended to cross after it passed; that plaintiff did not slow up; that defendant “hit her brakes” and almost stopped; that after the collision he proceeded on across, parked his car and came back to the scene, and that the lights were still out at that time; that he gave his name to the officer and told him that the lights were off. On cross-examination counsel for plaintiff questioned the witness further about the lights, and developed the fact that after the collision he had “deliberately looked” at the lights because he figured that the “question” would come up later. In the judgment of this witness the lights came back on about five minutes after the collision. This witness (on recross-examination) identified a written statement he had given to plaintiff’s counsel and was examined concerning it, but the offer of the statement in evidence was refused. The other witness, Michael Royse, had stopped in the southbound lanes of Ward Parkway at Gregory, saw that the traffic lights were out, saw plaintiff’s car coming west, and saw the accident. He testified : that the lights remained out for 5-10 minutes after the collision; that he told the officer that the lights were out at the time; that he first went to look at the cars, and then went back and moved his car at which time he saw that the lights were still out.

The damage to plaintiff’s car was at the left front door. The principal damage to defendant’s car was to the front of the right fender, the extreme right headlight and the hood. The ordinances of Kansas City concerning signal lights at controlled intersections, right of way at uncontrolled intersections, and speed at uncontrolled intersections were offered and received in evidence. Motions of defendant for a directed verdict were overruled. We shall refer to certain instructions hereinafter.

The first point made by plaintiff is that the court erred in receiving the testimony of the officer that the witnesses told him that the traffic lights were out; this, plaintiff says, was pure hearsay, depriving him of the right of “confrontation” of these witnesses. There is no doubt that the statements as testified to were hearsay unless admissible as res gestae, a theory which defendant urges. We have no difficulty in ruling that these statements were not admissible as res gestae. They were made at least IS minutes after the collision, they were not spontaneous utterances, they were made after a lapse of time permitting thought and deliberation, and they constituted mere narrative descriptions of an event; they were not, in any sense, utterances initiated by shock, tension or excitement. The only case which defendant cites on the subject, Wren v. St. Louis Public Service Co., Mo., 333 S.W.2d 92, is a definite authority against her. But see also: Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777; Roush v. Alkire Truck Lines, Inc., Mo., 299 S.W.2d 518; Alberty v. Sunshine Biscuit Co., Mo., 321 S.W.2d 418; McKenzie Transport Leasing Co. v. St. Louis Public Service Co., Mo.App., 349 S.W.2d 370; Gough v. General Box Co., Mo., 302 S.W.2d 884; Meyers v. Smith, Mo., 300 S.W.2d 474.

Thus, we find that the statements were hearsay; plaintiffs statement to the officer concerning the lights was also hearsay and self-serving. Defendant urges that the controverted statements were rendered admissible upon the theory of “Curative Admissibility.” The argument is, in substance, that the officer was plaintiff’s witness, that his counsel brought out plaintiff’s hearsay and self-serving statements on direct examination, and that these, admitted without objection and coupled with other miscellaneous matters taken from the report, opened up the issue of the status of the lights for rebutting hearsay. Counsel cites: Sigman v. Kopp, Mo., 378 S.W.2d 544; Kelley v. Hudson, Mo.App., 407 S. W.2d 553; Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859; Young v. Dueringer, Mo.App., 401 S.W.2d 165.

The theory is discussed at some length in Wigmore on Evidence, 3rd Ed., §■ 15, p. 304, where three different and divergent rules are stated, and much conflict indicated. The author cites at least one Missouri case (by no means recent) in support of each rule. Wigmore’s statement of the third rule (namely), “that the opponent may reply with similar evidence whenever it is needed for removing an unfair prejudice which might otherwise have ensued from-the original evidence, but in no other case,”' seems to have received some recent acceptance in Missouri; see Biener v. St. Louis-Public Service Co., Mo.App., 160 S.W.2d 780, 786 and cases there cited, holding that at least the trial court should not be convicted of an abuse of discretion in permitting subsequent testimony of the same character under the circumstances indicated by Mr. Wigmore. See also the cases which defendant has cited, as listed supra. There are differences in the facts here and those in most of the cited cases; for instance, the statements now objected to were not mere continuations of a single conversation partially admitted, they came from persons not parties to this controversy, and the parties-making them were not unavailable at the trial. We have the view that it is unnecessary to extend the doctrine to the facts of' this case, and in so holding we note what the St. Louis Court of Appeals so aptly said in Young, supra, 401 S.W.2d at loc.cit. 168: “While we do not have a feeling of complete assurance as to the limits of the doctrine of curative admissibility, we do feel constrained here by the rationale employed by the Supreme Court in Sigman v. Kopp,. supra [Mo., 378 S.W.2d 544].”

The question which we now consider is-whether the statements of the two witnesses to the officer that the lights were not working were substantially prejudicial to-the plaintiff. We have concluded that they were not. Plaintiff cites as his sole authority the case of Meyers v. Smith, Mo., 300 S.W.2d 474. There, following a one-car accident in which one girl was killed and several other young persons injured, the only real issue was the identity of the driver, i.e., whether it was a boy called “Diz,” who was the son of the owner, or an under-age girl. The plaintiff showed that “Diz” had stated to three or more persons very shortly after the accident that he was driving, and that some of the other occupants had likewise stated the same thing. A highway patrolman was permitted to testify that, while he was taking three of these persons to the hospital, “they” stated that “Diz” was driving. At the trial “Diz” and the other survivors all testified that the girl was driving, and it was further developed that he had told the others immediately after the accident to “remember that he was driving the car,” because his father had told him not to let anyone else drive. The testimony of all such post-accident statements was objected to as hearsay but it was admitted by the trial court, primarily on the theory of res gestae, and the judgment was reversed for its admission. We are concerned here only with the question of the prejudicial effect of the statements as there received. The Court held that the evidence was prejudicial, with emphasis on that of the highway patrolman because of what the public regards as his “exalted official position.” The Court further said, however, at loe. cit. 479: “In considering prejudicial effect there is another view of all this evidence in addition to its being employed testimonially; its effect, undoubtedly, was to impeach the two girls and the boy, or their testimony, before they testified and regardless of what they might say.” It will be noted that the statements there received were directly contradictory of the testimony of the same persons at the trial; most of those witnesses were not asked at the trial about their prior statements; and the testimony of the officer and of the others who related post-accident statements was necessarily at war with the trial testimony of those making the statements.

In our case the two witnesses (being the only two mentioned) testified at the trial, verified everything the officer had said concerning them and testified most positively that the traffic lights were in fact out at the time of the collision. Thus, there never was any divergence between what these witnesses said and what they were quoted as saying. They were vigorously cross-examined, and thus there was “confrontation,” although slightly delayed. The plaintiff stuck to his story, defendant stuck to hers, and the witnesses stuck to theirs; also, plaintiff’s post-collision hearsay and self-serving statement that he had the green light remained in evidence. We see no substantial prejudice to plaintiff’s case.

On this subject each case necessarily rests on its own particular facts; cases might be cited which would indicate prejudice or nonprejudice, but the facts would differ. Generally, on the result we have reached, but not on similar facts, see: Kagan v. St. Louis Public Service Co., Mo. App., 334 S.W.2d 379; Williams v. Miller Pontiac, Mo.App., 409 S.W.2d 275; La-Mantia v. Bobmeyer, Mo.App., 382 S.W.2d 455; Pope v. St. Louis Public Service Co., Mo., 341 S.W.2d' 123; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115; Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U.S. 612, 4 S.Ct. 533, 28 L.Ed. 536, 540. In' Wallendorf v. Rensing, Mo., 329 S.W.2d 779, the admission of an after-collision statement of a driver who was not a party, and which was merely corroboratory of his subsequent testimony, was held not to be prejudicial, although a specifically self-serving statement of a defendant, taken considerably later and after time for reflection, was held to be prejudicial. We note further here that the trial court overruled plaintiff’s motion for a new trial, which contained a specific assignment of error on the admission of these statements. It would seem that the Court necessarily ruled that the admission of the statements was nonprejudicial, if erroneous, and we see no reason to set aside the exercise of its discretion. Nor do we independently find that the admission of this evidence constituted error “materially affecting the merits of the action.” Rule 83.13(b).

The other point concerns the instructions. The Court gave for plaintiff MAI 17.01 which submitted only a violation of the traffic signal by the defendant, with a concluding reference to defendant’s contributory negligence Instruction No. 3. That instruction stated that the verdict would be for defendant on plaintiff’s claim if plaintiff : “failed to yield the right of way, or failed to keep a careful lookout, or drove at an excessive rate of speed,” followed by the usual required findings of negligence and causation or contribution. This was listed as MAI 28.01-modified. Plaintiff’s point is that this instruction, No. 3, in submitting the issue of right of way, ignored plaintiff’s submission and required no finding that the traffic lights were not operating. Thus, counsel says, the jury was misled, the giving of the instruction was a positive misdirection, and an inconsistency was created.

The cases cited concern generalities which require no discussion as, for instance, that instructions which exclude an issue are erroneous, that inconsistencies between instructions constitute reversible error, and that the instructions as a whole must not mislead. It is true that Instruction No. 3 was submitted upon a wholly different theory from that of plaintiff, but the defendant had a perfect right to submit an instruction affirmatively based upon her theory and her evidence, or to converse plaintiff’s instruction, or to do both. Boedeker v. Wright, Mo., 312 S.W. 2d 829; Compton v. Meadows, Mo., 359 S.W.2d 673; Jones v. Smith, Mo., 372 S.W.2d 71. The issues for the jury here were comparatively simple. Any ordinary jury would know that in order for defendant to violate the traffic signal, it must have been operating; if not, then plaintiff could not recover under his Instruction No. 2. But the Court also gave Instruction No. 8, as follows:

“The phrase ‘right of way’, as used in these instructions, means the right of one vehicle to proceed ahead of the other.
“With respect to an uncontrolled intersection, when two vehicles do not reach said intersection at approximately the same time, the vehicle which enters the intersection first has the right of way.”

All instructions must be considered together, and (under the ordinances of Kansas City) No. 8 was a proper explanation of the “right of way” issue submitted in Instruction No. 3. We thus hold that the jury was required to find that the intersection was at the time an uncontrolled intersection, before it could find plaintiff negligent for failing to yield the right of way. This was entirely consistent with defendant’s theory and evidence. The instruction was not inconsistent with No. 2, for a finding for plaintiff based on that required precisely the opposite finding, namely, that the traffic lights were operating and the intersection was controlled. On this issue the jury was merely required to find: (1) whether the traffic lights were functioning; (2) whether, if so, defendant violated the light; and (3) if not, whether defendant had the right of way and plaintiff failed to yield. We see no conflict and no inconsistency, but a mere submission of proper, though divergent, theories supported by substantial evidence. Plaintiff makes certain references in this point to the argument of defendant’s counsel. No point of error is made on the argument and the instruction is either good or bad on its face. There was no error in giving Instruction No. 3.

Finding no prejudicial error the judgment is affirmed.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. William Calvin WORSHAM, Appellant.
    No. 52350.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Lawrence O. Willbrand, St. Louis, for appellant.
   BARRETT, Commissioner.

William Calvin Worsham, with prior felony convictions, was found guilty of burglary and stealing and the court fixed his punishment at ten years for the burglary and five years for the stealing, the sentences to run concurrently. Specifically the charge was that on September 13, 1965, Worsham broke into a building at West Florissant and Dunn Road belonging to Arthur Enterprises, Inc., operator of 270 Drive-In and stole “one safe and a Red and Yellow Hand Cart.” The meritorious and principal claim is that since there was no direct proof that appellant “was «present at or near the location of the occurrence in question” his motions for acquittal should have been sustained. Thus the question for determination is whether the fair inferences from the evidence circumstantially support the jury’s finding that Worsham broke into the building and stole either of the. articles described in the information. Two subsidiary assignments of error are (a) that the court prejudicially erred in commenting to the jury at the close of the evidence that “the power and the responsibility is now yours,” and (b) that the court erred in admitting in evidence two documents showing the appellant’s prior convictions.

The 270 Drive-In Theatre is located on a thirty-five acre tract of land and about 650 feet from the theatre screen there is a building, also a part of the theatre operation, known as “the club house.” This building is occupied and used as the theatre office, storage, cigarette machines, concession equipment, rest rooms and employees’ facilities. In the manager’s office, “just painted” green, enclosed in concrete was the theatre safe which on September 13 contained $375.00 in change and currency and a $25 check. Three weeks prior to the burglary the manager had purchased from Central Hardware “a little hand truck that was red with pneumatic tires” to carry supplies on. At 2 a.m. September 13, 1965, the manager locked the several doors and secured the premises. About eight o’clock the porter called the manager and he returned to find the door into the utility room pried open and ajar, the lock had been broken as had the door to the office. A filing cabinet had been rifled and there was concrete all over the area from which the safe had been removed. And, the newly purchased handcart was missing.

On the 13th a police officer investigating the burglary found that a tree obstructing a dirt road 175 feet west of the theatre had been moved aside and there was “one path that was matted down” and in the weeds the officers found a welding tank and acetylene torch, complete with gauges, tools and a pair of canvas gloves. The welding tank and torch, “a professional cutting outfit,” belonged to the appellant Worsham. It had been sold to him on August 26, 1965, for $110.00 by the Woodson Road Welding Company. On September 15, 1965, just back of Worsham’s residence, in an open field alongside a Metropolitan Sewer District ditch, the police found the Arthur Enterprises’ safe. There were no observable acetylene torch marks but the safe had been opened and in the bottom of it the police found and preserved “a round metal washer.” Worsham lived in the Glentown or Ramsey Apartments, 3526 Glentown Apartments. On the evening of the 15th of September the police went to Worsham’s apartment, about 8 o’clock, there were at least six people there and one of the women was cooking dinner. After identifying themselves the police arrested appellant and secured his permission to search the apartment. In an upstairs bedroom they found a pair of work trousers which Worsham identified as his own. On this trip the police observed a red handcart in the first-floor bathroom. The officers also found and took a “green leather suitcase with various tools,” including a metal washer matching the one found in the safe. Both washers “had microscopic flecks of green paint and flecks of white paint on them” — matching the paint in the office and the concrete around the safe. The police took samples and scrapings of green paint from the safe, from a hammer and from the canvas gloves found with the torch. These samples all matched and the debris of “metal turnings or metal shavings” removed from the cuff of Worsham’s trousers matched the metal from the drill holes in the safe. The following day the police returned and the handcart was found in the grass and weeds to the rear of his apartment.

Worsham did not testify but his fiancee who lived at 3550 Glentown did and she said that instead of going to, being in and searching his apartment 3526, the police were in and searched her apartment where she was preparing supper for the appellant, his brother and his wife and their children. She said that the acetylene torch which appellant had used in “customizing” his automobile had been stored in the basement to her apartment and one day it disappeared, she “didn’t know what had become of it.” She said that her five-year old daughter found the handcart in the weeds back of the apartments, the daughter thought “it was a wagon” and “she cleaned it up and left it in her downstairs bathroom.” After the police had been there Mrs. Bennett “took it back where my daughter found it because I didn’t know where it came from so I put it back out in the field where I had found it.”

Thus while there were two versions or points of view as to some of these items, Mrs. Bennett’s on the one hand and the police on the other, particularly as to the red and yellow “handcart” alleged in the information, the jury could reasonably believe the police version and thereby find that Worsham had possession of the handcart recently stolen from the theatre building. The consequence is that the recent, unexplained possession (of Arthur Enterprises’ cart) of the stolen handcart, which is not the only circumstance, is a telling factor upon the charges of both the burglary and the larceny. State v. Kennedy, Mo., 396 S.W.2d 595; 12 C.J.S. Burglary § 59, p. 735; 13 Am.Jur.2d Secs. 53-54, pp. 354-355. The credibility of appellant’s or Mrs. Bennett’s explanation was a question of fact for the jury “and if the jury disbelieves it the case stands with his possession unexplained.” State v. Denison, 352 Mo. 572, 579, 178 S.W.2d 449, 454. But as indicated, possession of the handcart does not stand alone, there are the metal shavings in the cuffs of the trousers, the green paint on the washers, the hammer and the canvas gloves and these circumstances cogently connect him with both the burglary and the larceny. State v. Worley, Mo., 353 S.W.2d 589.

The second assignment, without citation of authority, arose in these circumstances : at the conclusion of the arguments the court said, “Well, members of the jury, the power and the responsibility is now yours. You will retire to your jury room to deliberate. You will use these instructions as the law of the case * * After the jury retired counsel moved for a mistrial because of the court’s statement “concerning the power and authority is now yours.” It was said “(o)n the ground that this is placing a suggestion to the jurors as to their responsibility to the community which would encourage them to bring back a verdict of guilty.” Counsel said, “well, I am objecting to that term ‘responsibility.’ ” Whatever interpretation one might place on the court’s language it was obviously not as counsel contend “more than a comment on the evidence.” It may have been a rhetorical or jocular remark (S3 Am.Jur. (Trial) Sec. 91, p. 84), or a mere “concededly true general observation.” 88 C.J.S. Trial § 49, p. 126. There was no hostility on the part of the court, no expression of opinion upon any issue in the case and in these circumstances and in the absence of compelling demonstration of prejudice it may not be said that the court manifestly infringed the appellant’s right to a fair trial.

The appellant’s third and last point has to do with the evidence establishing his prior felony convictions. It is said that the court erred in admitting into evidence “an instrument purporting to be a certified copy of a court record showing the defendant allegedly had prior felony convictions which instrument failed to bear a court seal or failed to bear an adequate court seal.” The second offender law (RSMo 1959, § 556.280, V.A.M.S.) as amended in 1959 provides the procedure and penalty for second offenders but neither that nor any other statute spells out just how the prior offense must be established, the best evidence, of course, is the original record or a duly authenticated copy of the record plus, most important of all, an identification of the accused as the person in both instances, the one on trial and the one previously convicted. State v. Hagerman, Mo., 244 S.W.2d 49, 53-54; State v. King, 365 Mo. 48, 275 S.W.2d 310. And, it may be interpolated, the original or authenticated copies of judgments and records is not the exclusive and only possible method by which prior convictions may be proved or established. While copies of records must be duly authenticated, particularly copies of judgments, there is no requirement that authentication include an official seal, at least as a prerequisite to the validity of the document as evidence (24B C.J.S.Criminal Law § 1967, p. 497; 25 Am. Jur. (Habitual Criminals) Sec. 29, p. 275), as for these purposes, authentication means “verification.” 7 C.J.S. p. 1290. This case is not concerned with the authentication of a federal prison record and judgment (State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 332-333) and neither is it concerned with the authentication of the records of a sister state (RSMo 1959, § 490.220, V. A.M.S.) nor with records of judicial proceedings involving full faith and credit. RSMo 1959, § 490.130, V.A.M.S.; State v. Young, Mo., 366 S.W.2d 386, 388-389. Here there were two documents, the first is a “Certified transcript of Serial Record” of William Calvin Worsham from the Department of Corrections, that document is signed by the Director of the Division of Classification and assignment and is notarized by a notary public and bears his seal (State v. Tallie, Mo., 380 S.W.2d 425) and its authenticity is not questioned and it shows his prior convictions. Except for the Tallie case all the other cases were concerned with prior records and their proof prior to the 1959 amendment when juries were required to find the prior convictions. The other document is a certified copy of the record of Worsham’s prior convictions in the Circuit Court of the City of St. Louis, domestic judgments. They are three in number and are first certified to by James McAteer, Clerk of the Circuit Court of the City of St. Louis, for Criminal Causes. It does not appear that the clerk in his capacity as clerk has a seal; the document concludes “Witness my hand and the seal of said Court hereto affixed.” Next, the Honorable Alvin J. McFarland, the then presiding judge of the Circuit Court of the City of St. Louis, certifies that Mc-Ateer is the clerk. This record recites that the court “is a Court of Record, having a clerk and seal” and opposite the judge’s signature in parenthesis is the printed word “SEAL,” and following that is the clerk’s certificate that McFarland is the judge and he attests to the genuineness of the judge’s signature. In the technical sense of a device so made that it can “impart an impression in relief” (Webster’s International Dictionary) this document does not bear the traditional seal of a common law court but the word “SEAL” in parenthesis is sufficient for a scroll (2 Bouvier’s Dictionary, p. 3019) and the document was not inadmissible in evidence for the mere lack of a traditional mechanical seal impressed upon the document in relief.

For the reasons indicated the judgment is affirmed.

STOCKARD and PRITCHARD, CC., ■concur.

PER CURIAM: The foregoing opinion hy Barrett, C., is adopted as the opinion of the court.

All of the Judges concur.


author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. James A. CIARELLI, Appellant.
    No. 52325.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Robert M. Hickman, Kansas City, for appellant.
   SEILER, Judge.

Defendant was convicted of receiving stolen property, specifically sixteen new Spalding golf clubs belonging to the Tomahawk Hills Country Club, and was sentenced by the court under the second offender’s act to ten years’ imprisonment.

Defendant’s sole contention is that the trial court erred in overruling defendant’s motion to suppress production in evidence of the golf clubs, for the reason that the clubs were obtained by unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments and not as an incident of a lawful arrest.

The state proved by two convicts that on January 8, 1965, they broke into the Tomahawk Hills Country Club in Johnson County, Kansas, and stole the golf clubs in question, together with golf bags, shoes and balls, and sweaters and T-shirts. They took the loot to Kansas City, Missouri, where defendant and one Junior Bradley purchased the same from the two convicts knowing it to be stolen.

Meanwhile an investigator with the federal Alcohol and Tobacco Tax Unit, Gene Overturf, was in an “after hours” club, one which is opened after the regular taverns are closed, called “Southside Club of Kansas City, Incorporated”, located at 3807-09 Broadway, Kansas City, Missouri, on nine occasions as an undercover agent, commencing October 18, 1964, investigating alcohol tax violations. On each occasion Overturf was there defendant Ciarelli was in charge and carrying on the business of selling liquor. The club was located in an old store building with one large room with two street entrances and two smaller rooms in the back, one containing frozen food lockers and the other room, which we will refer to as the “locker room”, containing lockers of the club members. Overturf testified that on occasions defendant would bring whiskey out of the locker room, after unlocking the door with keys obtained from a counter near the door. On the night of January 16, 1965, Ciarelli sold Overturf a pint of whiskey which Ciarelli obtained from the locker room. The club was a corporation and apparently had 100 to 200 members. Ciarelli was an employee in charge of the club but was not an incorporator or a member of the board of directors. Over-turf never saw anyone other than Ciarelli enter the locker room.

On January 16, 1965, Overturf filed a complaint for violation of U.S.C. Title 26, Section 5691, before the United States Commissioner at Kansas City, swearing that on or about December 19, 1964, defendant Ciarelli unlawfully carried on the business of selling retail liquor and willfully failed to pay the special tax as required by law, based on Overturf’s personal knowledge, and on this the Commissioner issued a warrant of arrest for defendant.

About 2:30 a. m., January 17, 1965, Over-turf and another Alcohol and Tax Unit investigator, together with two men from the United States Marshal’s office, and approximately six or seven men from the Kansas City police force, went to the club premises, entered, and the federal marshals immediately put defendant under arrest on the authority of the federal arrest warrants. The Alcohol Tax men then started interviewing club patrons and also started a search for alcoholic beverages. The door to the locker room was locked. One of the investigators asked defendant if he had the keys to the room; defendant said he did and handed the keys to the witness. Upon opening the door, the Alcohol Tax investigator-saw numerous lockers in the room and “quite a bit of merchandise”, including golf clubs. So the investigator called one of the men from the Kansas City police force, Detective Lieutenant Hitchcock, to the door and showed him the merchandise. It all appeared to be new, and the investigator suspected it was stolen. Lieutenant Hitchcock then entered the locker room and took charge of the property. The investigator said it was the practice of federal agents to take municipal officers with them on arrests of the nature here involved, and Hitchcock testified he had been assigned by his chief of detectives to assist the federal men in the arrest.

Lieutenant Hitchcock said the door to the locker room was open when he entered. He observed golf clubs, tied in two bundles on a couch, partly covered with a blanket with the shafts protruding and with the stickers and price tags still on the clubs. He had had reports of recent burglaries of golf shops in the area, and since these clubs were new with the price tags on them, he strongly suspected they were stolen. The two bundles of golf clubs, Exhibits 1 and 2, were positively identified by the golf professional and the Spalding salesman by registered numbers and model numbers as the golf clubs which were sold to the Tomahawk Hills Country Club and stolen in the burglary of January 8, 1965.

Lieutenant Hitchcock seized the golf clubs and other articles also in sight in the locker room, namely, new clothing piled on a nearby chair — three suits, four pairs of trousers, three sport jackets, 22 pairs of men’s gloves and a shirt, together with a portable television set, a stereo set, golf balls, golf club covers and ten stereo records (all the foregoing appeared to be new and unused) and a .38 Colt revolver and a pair of bolt cutters.

Defendant offered no evidence.

Since we have concluded there was not an unreasonable search and seizure here, as discussed below, we will assume without deciding that defendant did not consent to the search and seizure and that defendant has standing to question the same. See annotation, 9 A.L.R.3rd 858, — Search—Consent While in Custody, and Volume 1965, Wash.Univ.L.Quar. 488, Standing to Object to an Unlawful Search and Seizure.

Although the evidence shows that on previous occasions when the federal undercover agents were on the premises defendant was engaged in the business of selling liquor at retail (for example, the agents made purchases from him and saw him get liquor for others), the record is silent as to any activity in the club on the occasion of the arrest in the early morning hours of January 17, 1965. On that occasion the agents entered, made the arrest and started their search. There is no evidence as to what defendant or others on the premises were doing when the officers arrived. So if the search and seizure were valid it must rest on something other than what the officers observed upon arrival. This is brought into sharper focus by the realization that the federal officers could easily have obtained a search warrant under Rule 41 of the Federal Rules of Criminal Procedure to search the premises for liquor (which is what the federal agents were searching for after the arrest), but it would have been on the basis of what they had observed from October 18, 1964 to January 16, 1965. In fact, it is hard to understand why they failed to take this additional step and thereby avoid the needless risk of having their work spoiled by a possibly successful claim of unreasonable search and seizure.

However, the following factors are present in this case:

(1) There was an actual, technical and complete arrest of defendant by the federal officers, as found by the trial court in overruling the motion to suppress, with which finding we agree.

(2) The arrest preceded the search, another finding made by the trial court and with which we agree.

(3) The trial court found that defendant’s arrest by the federal officers was lawful, with which we agree.

(4) The trial court found that the arrest was made in good faith and not for the sole purpose of creating an excuse to search. This finding is amply supported by the evidence, and we believe the trial court was correct in its finding.

(5) The trial court found that the search was bona fide for articles connected with the arrest, taking into consideration the fact that the federal statute, Title 26, Section 5691, prohibits the carrying on of the business of retail dealer of liquor, so that liquor on the premises in the portions thereof under the control of defendant (who had the keys to the locked room where the agents were searching for liquor) would be a search for articles which were directly connected with the arrest made on a warrant issued under a complaint charging defendant with unlawfully carrying on the business of a retail liquor dealer without paying the special tax required by law. There is nothing in the evidence to indicate that the search by the federal officers was merely exploratory for anything that could be found.

The cases, both state and federal, make it clear that under the above circumstances the officers, following the arrest, may reasonably search not only where the arrest occurs but the other rooms under the defendant’s control, State v. Vollmar, (Mo. Sup.) 389 S.W.2d 20; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743; State v. Turner, 302 Mo. 660, 259 S.W. 427; State v. Long, 336 Mo. 630, 80 S.W.2d 154; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Marrón v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; annotation, Search Incident to Arrest, 4 L.Ed.2d 1982-95.

Once it is determined that the search which resulted in the opening of the door of the locker room was lawful, there is no •question but that the resulting seizure by the Kansas City police of the golf clubs was lawful. The golf clubs still had the price tags on them and were obviously new. Lieutenant Hitchcock was aware that there had been some recent burglaries of golf shops in the Kansas City area. While it was not conclusively known at the moment that the golf clubs were stolen property, it was a reasonable surmise that they were, and the police officers might well be remiss if they had not seized the property, because there was no assurance it would not disappear before their return if they left it there and took the time required to trace its ownership specifically before seizing it. In State v. Robinson, 354 Mo. 74, 188 S.W.2d 664, 666, the court held that where officers were legally on defendant’s premises searching for illicit liquor and equipment and came across stolen property on the premises, the officers had the right to seize the stolen property, the court saying: “* * * Possession of the stolen property was unlawful per se. It was therefore contraband and subject to seizure when discovered by the officers legally on the premises. * * * ” It was said in Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746, 748, that the seizure of stolen goods was authorized at common law, and in Warden, Maryland Penitentiary v. Hayden, 386 U.S.-, 87 S.Ct. 1642, 18 L.Ed.2d 782, decided May 29, 1967, that “Thus stolen property — the fruits of crime —was always subject to seizure.”

We have considered the federal cases cited by defendant and while as the United States Supreme Court said in Abel v. United States, 362 U.S. 217, 235, 80 S.Ct. 683, 695, 4 L.Ed.2d 668, 684, “The several cases on this subject [the court was referring to the extent of search which may properly be made without a warrant following a lawful arrest] in this Court cannot be satisfactorily reconciled”, we do not believe defendant’s cases show the trial court was in error in overruling the motion to suppress. Here the action of the federal officers in opening the door to the locker room with defendant’s keys and thereby exposing the stolen golf clubs was not a rummaging through defendant’s effects, not a wholesale, high and low, search for whatever could be found; in short, not an unreasonable violation of defendant’s privacy.

The judgment is affirmed.

HENLEY, P. J., and HOLMAN, J., concur.

STORCKMAN, J., not sitting when cause was submitted.

      . See Scurlock, Searches and Seizures in Missouri, 29 U. of K. 0. Law Review 242, 281-283.

      . Defendant argues that the search on January 17, 1965, was merely a fishing expedition and could have no rational connection with a complaint that the defendant sold whiskey on December 19, 1964, without a federal tax stamp. But the gist of the offense is carrying on the business of retail liquor dealer without paying the tax — a course of conduct — and not the sale of the liquor itself. Bush v. United States (OCA 10) 218 P.2d 223, 224, and Woodland v. United States (COA 10) 347 F.2d 956, 958, so that presence of liquor on the premises on any of the occasions in question would be closely related to the criminal enterprise and a corroborating circumstance tending to show the defendant was engaging in such a business.


author: DONNELLY, Judge.

text:
    LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF KANSAS CITY, Missouri, Plaintiff, v. Charles E. DUNN, Appellant, Royal Building, Incorporated and the Heirs of Jacob Gershon, Respondents.
    No. 52005.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.

      John G. Madden, Jr., Donald E. Willson, Madden & Burke, Kansas City, for appellant.
    Lyman Field, Rogers, Field & Gentry, Kansas City, for respondents.
   DONNELLY, Judge.

This is an action for apportionment of an award in condemnation. The Land Clearance for Redevelopment Authority of Kansas City, Missouri, condemned the Royal Building in downtown Kansas City, Missouri. The date of taking was October IS, 1964. An award of $285,000 was entered for the entire building. Respondents are owners of the fee. Appellant Dunn claims a leasehold interest in the amount of $60,000. The dispute is between Dunn and the owners of the fee. A hearing was held and the trial court, without a jury, found Dunn does not have a compensable interest in the award.

We review the case “upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” S.Ct. Rule 73.01(d), V. A.M.R.

The principals involved were Charles E. Dunn, Jacob Gershon and Ray Gershon, his-wife and Joseph Cohen. Dunn is the son-in-law of Jacob and Ray Gershon, both now deceased. Cohen is the president of Royal Building, Inc., a Missouri Corporation, in which the Gershons had no interest.

The Royal Building was a multiple-occupancy building. An undivided one-half interest was owned by Royal Building, Inc. An undivided one-half interest was owned by Jacob Gershon and Ray Gershon, husband and wife. The subject of the controversy is that portion of the building operated as the Town House Restaurant.

For some period of time before July,. 1960, the restaurant premises were leased to Town House, Incorporated. Dunn was a shareholder and officer of this corporation. Town House, Incorporated, occupied the premises under leases dated April 1, 1948, April 22, 1955, and August 23, 1957. In July, 1960, the corporation went into voluntary bankruptcy, and, on August 3, I960,. Dunn purchased certain assets of the bankrupt through the bankruptcy court.

Dunn claims a leasehold interest under a lease dated August 4, 1960. This lease names as lessor “Royal Building, Inc. and Jacob & Ray Gershon,” and names as lessee Charles E. Dunn. It purports to lease the restaurant premises for a term of five years, beginning September 1, 1960, at a rental of $615 per month. The lease was-signed by Jacob Gershon and Charles E. Dunn. It was not signed by Cohen for Royal Building, Inc. It was not signed by Ray Gershon.

We first consider Dunn’s claim against the undivided one-half interest of Royal Building, Inc. The following rules of law apply:

“Since there is, merely by reason of the existence of a cotenancy, no agency relationship between the cotenants, the courts-are agreed that one cotenant cannot ordinarily transfer or dispose of the interest of another cotenant in such manner as to be binding, unless duly authorized to do so. Nor can a cotenant, as a rule, bind his co-tenants by any unauthorized attempt to alienate or encumber the entire estate or any specific part or portion thereof, or an undivided interest in any such portion. In the absence of authorization or ratification on the part of his cotenants, any dealing on the part of one cotenant in relation to the common property is a mere nullity insofar as their interests are concerned.

“On the other hand, * * * it is clear that an unauthorized act of the kind under consideration may be affirmed or ratified by the other cotenants, or they may estop themselves by their conduct from questioning its validity, in which case it becomes as binding upon them as though they had joined therein. Mere failure to object to a transaction of this kind, however, does not necessarily preclude the nonconsenting tenants from asserting their rights, and unless they have acquiesced therein in one way or another, there can be no basis for an estoppel in pais.” 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 95, pp. 194, 195. See also 86 C.J.S. Tenancy in Common § 113; and Goodwin v. Costello, 240 Mo.App. 656, 212 S.W.2d 804, 807-808.

There is no evidence in the record to support a finding that Jacob Gershon was authorized by Royal Building, Inc. to execute the lease of August 4, 1960, in its behalf. Therefore, we must determine whether Cohen’s conduct was such that we should hold Royal Building, Inc. ratified the lease, or is estopped from questioning its validity and binding effect.

Town House, Incorporated, occupied the restaurant premises under lease dated April 1, 1948. This lease was signed by Cohen for Royal Building, Inc., by Jacob Gershon, and by Ray Gershon. In 1954, Block and Company, Realtors, took over management of the entire building. On April 22, 1955, another lease was executed with Town House, Incorporated. This lease was signed by Cohen for Royal Building, Inc., by Jacob Gershon, and by Ray Gershon. On August 23, 1957, a lease involving additional area was executed with Town House, Incorporated. This lease was signed by Cohen for Royal Building, Inc., by Jacob Gershon, and by Ray Gershon. All of these leases were signed by Dunn for Town House, Incorporated.

On August 4, 1960, Jacob Gershon signed the lease under which Dunn now claims a leasehold interest. Cohen was out of the city at the time. On August 5, 1960, Jacob Gershon wrote Cohen a letter and enclosed a copy of the lease. Cohen testified that the copy he received was not signed. On August 12, 1960, Cohen wrote Jacob Ger-shon a letter, suggesting changes in the lease, suggesting that Block and Company should negotiate the lease, and expressing a desire for a cancellation clause in the event the building should be sold.

On August 19, 1960, Dunn and Cohen discussed the situation. Dunn testified that Cohen objected then to the amount of the rental required by the lease dated August 4, 1960, and that Cohen wanted it prepared on the standard form used by Block and Company, but that Cohen was otherwise agreeable. Cohen testified that he advised Dunn the lease was unacceptable, that the rental should be increased, and that there should be a cancellation clause.

On August 29, 1960, Block and Company presented a lease to Dunn containing Cohen’s changes. Dunn read the lease and returned it unsigned to Block and Company a few days later. Cohen testified that on September 29, 1960, he first learned that Jacob Gershon had signed the lease on August 4, 1960. On October 3, 1960, Cohen wrote to Dunn the following letter: “October 3, 1960, Mr. Charles E. Dunn, c/o Town House Restaurant, 922-24 Main Street, Kansas City, Missouri. Dear Charlie : I was surprised to learn from Mr. Jacob Gershon, your father-in-law, last Thursday, September 29, 1960, that he had signed a lease to you for the premises at 922-24 Main Street for a period of five years, commencing September 1, 1960, with a renewal option for an additional five years. When you came to my office to discuss the lease on the premises, you gave me no indication that you already had persuaded your father-in-law to sign such a lease on the 4th day of August, 1960. I told Mr. Gershon that I thought it was wrong for him to have entered into such a lease without consulting me and without waiting until I had returned from my vacation on August 8, and that so far as the Royal Building, Inc., the owner of an undivided one-half interest in this real estate, is concerned, we do not recognize the validity of such a lease. Insofar as we are concerned, you are occupying the premises on a strictly month-to-month basis. Mr. Gershon and I have never had a dispute during all the years we have owned this property together, and I am sure he would not have signed' this lease if you had not over-persuaded him. He, as well as you, knew that we had turned this building over to Block & Company for management, which included the leasing of the premises, and that all leases should have been cleared through that office. As I told you when you were here, I have no objection to entering into a lease with you for a reasonable time and with reasonable safeguards for both parties. You were told to see Mr. Allen Block about the lease, and you promised you would do so. This you have failed to do, and I now realize for the first time that your failure to see Mr. Block is because you are relying upon the instrument signed by Mr. Gershon, which the Royal Building, Inc. does not recognize as valid. I would suggest that you consult with Mr. Block and try to work out a satisfactory lease that would be agreeable to all the owners of the property. Yours very truly, Joseph Cohen.”

Dunn expended about $30,000 in August and September, 1960, in preparing the restaurant for its reopening. He opened the restaurant on or about September 20, 1960. He made rental payments until the date of taking in condemnation and they were accepted.

“The Courts all concur in this, that no man can set up another’s act or conduct as the ground of an estoppel, unless he has himself been misled or deceived by such act or conduct; nor can he set it up where he knew or had the same means of knowledge as to the truth * * * as the other party.” Bales v. Perry, 51 Mo. 449, 453. On this record we hold that Royal Building, Inc. did not affirm or ratify the lease of August 4, 1960, and that it is not estopped from questioning its validity and binding effect. Cohen at no time indicated the lease of August 4, 1960, was acceptable to him. His objections to it were substantial. He testified that he accepted the rental payments because Dunn “kept using the building” under “the tenancy of month to month.” The trial court believed his testimony. We defer to its judgment in this regard.

We next consider Dunn’s claim against the undivided one-half interest of the heirs of Jacob Gershon. On August 4, 1960, Jacob Gershon and Ray Gershon, his wife, owned their one-half interest in the building as tenants by the entirety. Jacob Ger-shon signed the lease. Ray Gershon did not sign the- lease. Ray Gershon died September 19, 1961. Jacob Gershon died March 12, 1962. Dunn asks that we apply the doctrine of “estoppel by lease.” Columbian Carbon Company v. Kight, 207 Md. 203, 114 A.2d 28, 51 A.L.R.2d 1232; Annotation, 51 A.L.R.2d 1238. He contends that when Ray Gershon died, Jacob Gershon acquired, during the term of the lease, sole ownership in fee of the undivided one-half interest, which he did not have when he executed the lease; and, therefore, that his heirs are now estopped to question Dunn’s leasehold interest.

We first note the distinction between “technical” estoppels [e. g. estoppels by record, deed or lease], and “equitable” estop-pels [e.g. estoppels by conduct or misrepresentation]. See Bigelow on Estoppel, 6th Ed., pp. 3-32.

“Technical” estoppels are invoked to prevent a grantor from asserting an after-acquired title or interest in land which his deed purported to convey. We permit a deed “to pass any interest subsequently acquired by the grantor if an intent to convey that interest be disclosed by the instrument.” Ott v. Pickard, Mo. Sup., 237 S.W.2d 109, 111. However, in order for an instrument to operate as an estoppel against assertion of an after-acquired title, the true ownership must not be evidenced on the face of the instrument. Gibson v. Chouteau, 39 Mo. 536, 567.

Ray Gershon’s name appears as a lessor in the lease dated August 4, 1960. The lease, by its terms, evidences and gives notice of her interest. The truth as to title appears on the face of the lease. Therefore, “technical” estoppel, estoppel by lease, may not be invoked here. Bigelow on Es-toppel, supra, p. 393 et seq.

The true substance of appellant’s contention is that Jacob Gershon, by signing the lease, misrepresented his authority to execute the lease in behalf of his wife. This contention involves a question of applying “equitable” estoppel. Jacob Gershon did sign the lease. However, we may not infer that he purported to sign it in a representative capacity. We have reviewed the record and find no evidence of misrepresentation by Jacob Gershon. The doctrine of estoppel does not apply.

We are of the opinion that appellant Dunn, at the date of taking in condemnation, was a tenant from month to month, and had “no such interest as entitles him to compensation.” 2 Nichols on Eminent Domain, 3rd Ed., § 5.23 [4].

The judgmenf of the trial court is for the right parties, and it is affirmed.

All of the Judges concur.


author: LAURANCE M. HYDE, Special Commissioner.

text:
    Thomas REEVES and Olivia Reeves, his wife, Plaintiffs-Appellants, v. Earl R. JONES and Viola J. Jones, his wife, Raymond W. Prueitt and Dianna J. Prueitt, his wife, Missouri Savings Association, a Corporation, and Gideon H. Schiller, Trustee, Defendants-Respondents.
    No. 52272.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.

      Lawrence O. Willbrand, St. Louis, for appellants.
    Ziercher, Tzinberg, Human & Michen-felder, Erwin Tzinberg, Ackerman, Schiller & Schwartz, Paxton H. Ackerman, Clayton, for named respondents.
   LAURANCE M. HYDE, Special Commissioner.

Action in six counts to set aside a warranty deed executed by plaintiff, a deed of trust executed by defendants Jones to defendant Schiller as trustee for defendant Missouri Savings Association, a contract for sale of plaintiffs’ real estate executed by plaintiffs and defendants Jones and Prueitt; and ejectment. The court found for all defendants and entered judgment against plaintiffs.

The property involved is a house owned by plaintiffs which they wanted to sell. Plaintiffs put out their own “For Sale” sign in front of the house. Two Reliance Real Estate Company (hereinafter called “Reliance”) salesmen came and told plaintiffs they had a buyer and wanted plaintiffs to sign a listing card. Plaintiffs refused to sign but said they wanted $13,500.00. Mrs. Reeves said the salesmen came back with a sale contract signed by defendants Jones and Prueitt. Mrs. Prueitt was the daughter of Mrs. Jones and the house was to be purchased for her daughter and son-in-law. The Joneses were to take title and sign the mortgage papers because the Prueitts were then under 21 years of age. The contract price was $14,500.00 and plaintiffs said they were to get $13,500.00, the rest going to Reliance. Plaintiffs’ evidence was that the contract presented to them was signed by defendants Jones and Prueitt before they were shown through the house. Mrs. Jones testified she did see it before they signed the contract. Plaintiffs signed the contract, dated August 27, 1963, which designated them as seller. The contract provided it was to be closed “within 30 days from date of receipt of firm commitment of financing” which Reliance was to arrange and for which seller agreed to pay Reliance “three points” to obtain financing (apparently 3%). The contract also provided: “Commission shall be 6% to be paid by the seller.” It also provided: “Earnest deposit to be retained by seller’s agent without interest.” The earnest deposit was $450.00 and it was to apply on commission or be divided if defendants Jones and Prueitts did not complete the deal.

There was some delay in making financing arrangements but one of the Reliance salesmen called plaintiffs on December 16th to come in the next day to “sign your closing papers and get your check.” Plaintiffs went to the Reliance office on the afternoon of December 17th where an employee, Viola Schumacher, presented papers to plaintiffs which they signed, being a warranty deed to their property and a closing statement. Viola Schumacher took plaintiffs’ acknowledgment to the signed deed and kept the deed. When asked about their check said: “You’ll have to be patient, Mr. Reeves, * * * there are two parties involved in buying this home and it took a little bit — there are a few complications. * * * We will send your check to you. You will get it Monday. * * * You’ll get it through the mail Monday.” December 17, 1963; was on Tuesday, so plaintiffs were -permitting Reliance to have their deed for a considerable period, apparently expecting to receive a Reliance check for the purchase price. Furthermore, the closing statement signed by plaintiffs stated Reliance was “Agent for Thomas and Olivia Reeves— Seller.” It set out the purchase price, amounts paid for taxes, documentary stamps and other expenses, commission and “service charge on loan 3 points.” It also contained the following provision, which was signed by plaintiffs; “All documentary and other papers pertaining to this transaction, including the statement on the reverse side hereof (the original whereof has been delivered to the undersigned), have been examined by, explained to, and approved by the undersigned as representing a complete and final compliance with all agreements pertaining to the transaction, and Reliance Real Estate Co. is hereby authorized to complete the transaction as set out therein.” Plaintiffs were given a receipt for their signed warranty deed, endorsed on their copy of the closing statement, stating “Received signed Warranty Deed & Affidavit 12-17-63 Reliance R. E. Co., Inc. Per Viola Schumacher.” Plaintiffs never had any contact with Missouri Savings Association (hereinafter called “Savings”).

Mrs. Jones testified she called plaintiffs on the morning of December 17th, talked to both of them and invited them to appear with her that morning at the closing but was told by Mr. Reeves they did not transact business that way; and that “they were going at three in the afternoon.” She said they never told her Reliance was not their agent or to send the money directly to them. She testified: “Q (By Mr. Willbrand) You knew the money that you borrowed from the Missouri Savings and Loan Company had to be delivered to the sellers of the property, Mr. and Mrs. Thomas Reeves? A That is why I invited them to go along.” Apparently Mr. and Mrs. Jones went to the Savings office in the morning and plaintiffs went to the Reliance office in the afternoon. Plaintiffs’ deed was made to defendants Jones who had arranged to borrow $13,300.00 on the property from Savings and who, on the morning of December 17th, gave Reliance a check for the difference between amount of the loan and the purchase price. Mrs. Jones said she left this check at the Reliance office. Defendants Jones signed the note and trust deed for the loan on the morning of December 17th and endorsed the check for the loan which was made out to them and Reliance. It was left by them with Savings loan officer Granger who delivered it to Reliance after the deeds were recorded. Plaintiffs’ warranty deed and the trust deed were recorded on December 18th. Plaintiffs never received any of the proceeds of the check. Defendants Jones and Prueitt said they never employed Reliance and did not pay it any commission.

The court entered judgment for defendants finding: “[Tjhat defendant Missouri Savings Association paid the proceeds of said loan to defendants Jones and Reliance Real Estate Company, as agent for plaintiffs, and Reliance Real Estate Company converted said proceeds to its own use and fail to deliver to plaintiffs the sums due them; that there was no privity between plaintiffs and defendant Missouri Savings Association and no defendant had either a duty or an obligation to pay any sums directly to plaintiffs; that all parties to this action were innocent of any wrongdoing and plaintiffs must suffer the loss since, by their actions, they placed their agent, Reliance Real Estate Company, in the position to retain the sums paid.”

It is true that we have held that the power to receive the entire purchase price and make a conveyance could not be inferred from the naked power to sell even by one who held title for the owner. Stewart v. Wood, 63 Mo. 252. We have also held that a real estate agent’s power to sell does not give the agent authority to receive payment of the purchase money. Compton v. Vaughan, Mo.Sup., 222 S.W.2d 81, 82. However, in that case, we affirmed the finding of the chancellor on conflicting evidence that the payment to defendants’ agent was ratified by them because of their knowledge of payment to their agent and “committing themselves through the agent to carry the loan for the balance of the purchase price.” See also 12 Am.Jur.2d 832, Brokers, § 80; 12 C.J.S. Brokers, § 135, p. 340; Annotation, 30 A.L.R.2d 805. A case in which the trial court’s finding, that the broker involved was not authorized to receive payment, was affirmed is Lynn v. Northern Federal Savings & Loan Association, 235 Minn. 484, 51 N.W.2d 588, 30 A.L.R.2d 799. In the annotation following this case it is said: “Where the agent has been entrusted with the deed for delivery to the vendee, it has frequently been held, either on the basis of implied authority or on the theory of apparent authority, that payment to the agent of the amount due upon delivery of the deed constitutes payment to the vendor.” 30 A.L.R.2d 807, 820; see also Spikes v. Clark, Mo.Sup., 411 S.W.2d 148; Restatement of Agency 2d, Secs. 62 and 71; Smeade v. Rosen, 121 Cal.App. 79, 8 P.2d 507; Vetesnik v. Magull, 347 Ill. 611, 180 N.E. 390.

In the Lynn case, the defendant loan company contended that the delivery of the deed by plaintiffs to their agent to be delivered to the mortgagee established as a matter of law that their agent was authorized to receive payment. The court ruled (30 A.L.R.2d 1. c. 803) that “it was for the jury to determine whether defendant had sustained the burden of establishing that plaintiffs had authorized * * * [their agent] * * * to accept payment of the proceeds of the mortgage on the premises.” The jury found to the contrary and judgment on this verdict was affirmed. Likewise in the recent case of Rodekohr v. Gibson, Mo.App., 414 S.W.2d 349, the trial court found for the plaintiff, seller, on the basis of the documents involved and the facts stipulated. We note that in the court’s opinion it is stated: “[P]laintiffs executed their deed conveying the property and delivered the deed, with no directions or instructions” * * * [to their broker] * * * “so that the matter could be closed.” While the facts of that case may have been a sufficient basis for the trial court’s finding for the plaintiffs and affirmance by the court of appeals, we consider the statement of the court of appeals of the question involved (414 S.W.2d 1. c. 351) to be too broad. Our view is that whether an agent’s possession of and authority to deliver a warranty deed authorizes payment to the agent is a question of fact to be decided upon the facts of each case.

In this present case, the issue of whether as a matter of law it appears that plaintiffs’ agent was authorized to receive payment is not involved, because the court found for defendants necessarily on the basis that plaintiffs had given them authority (at least apparent authority) to receive payment of the purchase price. Plaintiffs not only were paying Reliance a commission for making the sale but also an additional commission for obtaining a loan for the purchasers through Savings; and their own evidence indicated that they expected to receive the check of Reliance for the purchase price. These facts, with plaintiffs’ refusal to meet with the purchasers for closing and the direction they signed on the closing statement, authorizing Reliance to complete the transaction as set out therein, is a sufficient basis for the finding of the court. See Restatement of Agency, Secs. 8, 8A, 27, concerning apparent authority.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.