author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Robert G. ERRINGTON, Appellant.
    No. 48352.
    Supreme Court of Missouri, En Banc.
    March 12, 1962.

      James L. McMullin, Kansas City, for appellant.
    John M. Dalton, Atty. Gen., Julian L. O’Malley, Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Robert G. Errington, whose “right name” according to testimony he gave in support of a preliminary motion is “Herman Heinrich Gotthold Helmers,” was found guilty (in a jury waived case) of practicing medicine without a license in violation of § 334.030 RSMo 1949, V.A.M.S. (now repealed), a misdemeanor, and he was sentenced to confinement in the county jail for one year and a fine of $1,000. He has appealed from the ensuing judgment and asserts among other things that the above statute is unconstitutional. Jurisdiction of the appeal is in this court.

The substitute information on which appellant was tried charged that “on the 29th day of May, 1959, * * * [he] did then and there unlawfully and wilfully attempt to treat one Ethel Wales Strunk, who at that time was sick, and that the said Robert G. Errington practiced medicine without being duly licensed by the Missouri State Board of Medical Examiners, * * *.” § 334.030, upon which the information was based, was repealed effective August 29, 1959, and the substance thereof was reenacted as §§ 334.010 and 334.250 RSMo 1959, V.A.M.S. cumulative supplement. The substitute information was filed October 16, 1959. The institution of the action subsequent to the repeal of the statute for a violation alleged to have occurred before its repeal is specifically authorized by § 1.160 RSMo 1959, V.A.M.S. Reference hereafter to statutes, unless otherwise stated, will be to them as they existed at the time of the alleged offense although a substantial change was made to Chapter 334 effective August 29, 1959.

Appellant maintained an office at 100 East 63rd Street, Kansas City, Missouri. He was listed in the “yellow pages” of the Kansas City telephone directory as follows: “Conservatory of Health, Dr. Robert G. Er-rington, Naturopathic Physician, Jackson 3-9201.” On May 26, 1959, Ethel Wales Strunk called in person at appellant’s office because, as she said, her condition was “run down.” After appellant talked to her he told her that “it sounded like” she was “anemic and run down,” that there was “probably something else wrong, perhaps gallstones,” that he had a series of 18 treatments which “would get rid of them” and that the cost would be “$178.00 plus vitamins.” Miss Strunk gave appellant a check for “the down payment” in the amount of $50 and was told to return on the following Friday morning, May 29, to receive a “dose of medicine.” At that time appellant and his wife, referred to as his nurse, gave Miss Strunk “a glass full of medicine” which was “sort of pinkish-white.” Miss Strunk testified that appellant said it was “a mild laxative” to “clean me out before they gave me the other dose of medicine.” That evening, after she arrived home, she was “sort of sick” at her stomach and she felt as though she had taken “quite a laxative.” By pre-arrangement appellant’s nurse went home with Miss Strunk, and the nurse gave her “a glass of sort of yellowish, oily substance to drink.” About midnight she became “real sick” and vomited a “greenish substance.” She was too sick to go to work on the following Monday and Tuesday. On June 2, 1959, she returned to appellant’s office. She was placed on a “sort of vibration table,” was given “hot and cold baths in a big tub,” and was placed in front of a series of sun lamps. Appellant then came in and gave her an “adjustment.” He “popped [her] neck and back,” which was “supposed to help * * * circulation.” Miss Strunk testified that at this time appellant “assumed” that she had gotten rid of the gallstones by reason of the previous treatment.

Miss Strunk asked appellant if he “studied to get his degree like most other licensed physicians do,” and he replied that he did and that he was a licensed doctor. She and appellant then discussed “vitamins [she] would have to have.” Appellant gave her “calcium powder” out of a gallon can for which she paid him $10.50. On June 9 she returned to appellant’s office and “went through the series of treatments of the hot and cold baths and the adjustment again.” At this time appellant gave her four bottles of vitamins, “it was A, C, D and E,” which he said would “help build [her] up,” but at the time her condition “had gotten worse.” For these vitamins Miss Strunk paid appellant $44.60.

On June 16 and again on June 23 Miss Strunk received another “series of treatments.” On June 16 appellant gave her another bottle of vitamins, “B-Complex, he called them” for which she paid $12.20. By this time Miss Strunk “was wondering about him” and also about the price of the vitamins. He “mentioned he had to have a special license to administer vitamins in less than 100, because the bottles were sealed,” but the bottle he had given Miss Strunk had not been sealed. She discussed this with him but he “really didn’t have an explanation for the fact the bottles weren’t sealed.”

Miss Strunk received no further treatments from appellant, but she returned on July 1, 1959 to have him fill out an insurance form. Appellant filled in the answers on a “physician’s Statement.” In answer to the question “Your diagnosis,” he wrote in the word “Choledochitis.” He also made check marks to show that her condition was due to illness and not an accident and that the illness was a “primary condition.” He wrote the word “Indigestion” in answer to the question, “What other disease is it secondary to, complicated with, or a sequence of.” In answer to the question, “Dates you treated patient for this condition” he wrote “May 26” for treatment “at office,” and he wrote “May 27-28-29-30 June 1-2-3 — 16, 23-30” for treatments “At home.” He made a check mark indicating that the “patient [had no] chronic or constitutional disease, physical defect or deformity.” The form had a place for signature as follows: “Signed-M.D.” Here appellant wrote “Dr. Robert G. Errington,” and without marking out the printed letters “M.D.” he wrote over them what appears to be “N.D.”

There is no contention that appellant was or has been licensed by this State to engage in the practice of medicine or any of the healing arts, and it affirmatively appears that he was not licensed by the board of medical examiners referred to in § 334.020. In the latter part of 1958 appellant was enjoined by this court from the practice of medicine on the basis that he was not licensed by this State to practice medicine and that such unlicensed practice constituted a continuing public nuisance detrimental to the public health and contrary to and against the public policy of this State. See State v. Errington, Mo.Sup., 317 S.W.2d 326, certiorari denied 359 U.S. 992, 79 S.Ct. 1122, 3 L.Ed.2d 980.

Appellant asserts that § 334.030 does not define the term “practice of medicine” and for this reason does not proscribe any activity as a crime.

“ ‘It is, of course, true that the defendant in a criminal cause has a constitutional right to demand the nature and cause of the accusation against him, and a criminal statute must be sufficiently clear that there can be no doubt as to when such statute is being violated.’ ” State v. King, Mo.Sup., 303 S.W.2d 930, 935. In Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 707, 95 L.Ed. 886, it was stated that “The essential purpose of the ‘void for vagueness’ doctrine is to warn individuals of the criminal consequences of their conduct.” In that case it was further ruled that “difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 1930, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508. Impossible standards of specificity are not required. United States v. Petrillo, 1947, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” See also Berger v. United States, 8 Cir., 200 F.2d 818. The certainty required may be accomplished by the use of words or terms of common understanding and settled meaning. 22 C.J.S. Criminal Law § 24, p. 73; 14 Am.Jur. Criminal Law § 19; Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447; People v. Ring, 26 Cal.App.2d Supp. 768, 70 P.2d 281 (statute made it a misdemeanor for one not a member of the bar to “practice law”) ; Goldstine v. State, 234 Ind. 388, 126 N.E.2d 581; State v. Bobbins, 35 N.J.Super. 494, 114 A.2d 474; Annotation 96 L.Ed. 374, 378. Conduct proscribed by § 334.030 included the “practice of medicine,” a term of common understanding and meaning and universally accepted to include, although not necessarily limited to, the acts of one publicly representing himself to be trained in the treatment and cure of ills of the human body and purporting for a fee to diagnose bodily ills and effectuate a cure or an alleviation thereof. See State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L.R.A.,N.S., 179; State v. Davis, 194 Mo. 485, 92 S.W. 484, 4 L.R.A., N.S., 1023; State ex rel. Collett v. Errington, supra; State ex rel. Collett v. Scopel, Mo.Sup., 316 S.W.2d 515; 41 Am.Jur., Physicians and Surgeons § 24; 70 C.J.S. Physicians and Surgeons § 10. The information fully advised appellant of the acts contended by the State to constitute the practice of medicine. The evidence established that the conduct of appellant did constitute the practice of medicine in the generally accepted and understood meaning of that term which § 334.030 proscribed and declared to constitute a misdemeanor unless done by one duly licensed as provided by law or excused from obtaining a license. We find no merit to appellant’s contention that § 334.030 was invalid for the reason that the term “practice of medicine” was not given a legislative definition.

Appellant next contends that what he did in the treatment of Miss Strunk consisted only of “acts the Legislature of Missouri has by statute permitted osteopaths to prescribe and perform and has specifically declared the same to be not the ‘practice of medicine.’ ” Prior to August 29, 1959, § 337.010 RSMo 1949, V.A.M.S., provided that “The system, method or science of treating diseases of the human body, commonly known as osteopathy, * * * is hereby declared not to be the practice of medicine and surgery within the meaning of sections 334.010 to 334.180 and not subject to the provisions of said chapter.” In Atkinson v. American School of Osteopathy, 240 Mo. 338, 144 S.W. 816, 821, this court said: “It is true that section 8537 [RSMo 1899] provides that osteopathy is ‘not to be the practice of medicine and surgery within the meaning of article 1 of this chapter [entitled Medicine and Surgery], and not subject to the provisions of said article’; but the purpose so expressed is simply to segregate this particular system from those for the regulation of which article 1 was enacted.” In Stribling v. Jolley, 241 Mo.App. 1123, 253 S.W.2d 519, it was held that osteopathic physicians were practitioners of a school of medicine within the meaning of § 205.300 RSMo 1959, V.A.M.S., which provides that in the management of a county hospital by the trustees thereof “no discrimination shall be made against practitioners of any school of medicine recognized by the laws of Missouri.” It thus appears that osteopathic physicians do in fact practice medicine, but prior to August 29, 1959, this state segregated the particular system known as osteopathy and provided certain regulations in Chapter 337 applicable alone to that system, and it also provided that the authorized practice of osteopathy did not constitute the practice of medicine for the purpose of regulation pursuant to the provisions of Chapter 334. This, of course, did not mean that acts constituting the practice of medicine and authorized by Chapter 337 to be performed by a licensed osteopathic physician did not constitute the practice of medicine when performed by an unlicensed person. It meant only that one licensed as an osteopathic physician could perform those acts without being in violation of Chapter 334. There is no contention that appellant was or ever has been licensed by this State to practice osteopathy or any other branch of the healing arts. Therefore, the commission by him of acts constituting the practice of medicine constituted a violation of § 334.030.

Appellant next contends that he is a naturopath; that the practice of naturop-athy is a “recognized occupation” which is not prohibited or expressly regulated by this State; and that to require appellant to be a licensed physician in order to practice naturopathy denies him the right to follow such occupation in violation of the Fourteenth Amendment to the Constitution of the United States.

In the frequently cited case of Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 233, 32 L.Ed. 623, it was stated that “It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subj ect only to such restrictions as are imposed upon all persons of like age, sex, and condition.” That case involved the validity of a statute which required every person practicing medicine to obtain a certificate or license from the state board of health. The United States Supreme Court went on to say that although the interest of one to continue a profession is often of great value and cannot arbitrarily be taken from him, “there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society. The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud. As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely; * * *. The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation.” See also Williams v. State of Arkansas, 217 U.S. 79, 30 S.Ct. 493, 54 L.Ed. 673; Watson v. State of Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987; Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. In the exercise of its right and authority to regulate for the public safety and welfare the Legislature of this State determined it to be proper and in the public interest to require all persons desiring to practice medicine to obtain a license therefor after complying with certain requirements, and by § 334.030 it was made a misdemeanor for anyone to practice medicine without such license if not exempt from this requirement by reason of another statute. The Legislature has recognized and made provision for persons desiring to practice medicine in certain limited fields or to engage in related professions such as chiropodists (Chapter 330), chiropractors (Chapter 331), dentists (Chapter 332), nurses (Chapter 335), optometrists (Chapter 336), osteopaths (Chapter 337, now repealed), and pharmacists (Chapter 338). The Legislature has not deemed it appropriate or in the public interest to make special provision for the regulation and licensing of persons to engage in the practice of naturopathy. However, a state is not necessarily required to recognize or make special provision for every special field or system of healing or therapy and provide for the licensing of the followers of each such school by requiring of them only such education or knowledge as that particular group of followers may think appropriate. Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, affirmed 274 U.S. 720, 47 S.Ct. 590, 71 L.Ed. 1324; Hitchcock v. Collenberg, D.C., 140 F.Supp. 894, affirmed 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718; Schlicting v. Texas State Board of Medical Examiners, Tex., 310 S.W.2d 557; Hahn v. State, 78 Wyo. 258, 322 P.2d 896; State ex rel. Collett v. Scopel, Mo.Sup., 316 S.W.2d 515, 519. As pointed out in the Scopel case, this State does not prohibit the practice of naturop-athy, but it has established certain requirements which must he met and satisfied by any person (not exempted by some statute) who undertakes the practice of medicine, and one so licensed to practice may, if he desires, apply the tenets and principles of naturopathy in his practice. While a State cannot arbitrarily confine all healing to any one school or practice, State v. Biggs, 133 N.C. 729, 46 S.E. 401, 64 L.R.A. 139, distinctions may be made and schools and methods exempted from regulation or made subject to special regulation, so long as the distinctions are not arbitrary or unreasonable. Watson v. State of Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987; Semler v. Oregon State Board of Dental Examiners, supra; Parks v. State, 159 Ind. 211, 64 N.E. 862; Hitchcock v. Collenberg, supra.

Appellant offered no evidence (except reading into the record the provisions of certain Missouri statutes of which we take judicial notice), and therefore the record does not tend to reveal any basis whatever for ruling or even implying that the failure of this State to make special provision for practitioners of naturopathy is arbitrary or unreasonable. It is not even established that appellant is a naturopath (except that h-e advertised as such in a telephone directory) or that he is qualified to practice naturopathy. In fact, there is nothing in the record to indicate of what the practice of naturopathy consists; that is, whether its principles are limited to some particular method of practicing the art of healing or to some limited, portion of the human body, or whether it is kindred to the principles and scope of treatment employed by an allopathic or homeopathic physician. Appellant quotes in bis brief a dictionary definition of naturopathy as “A drugless system of therapy by use of forces such as air, light, water, heat, massage, etc.” Assuming this to be a reasonably accurate definition of the principles of naturopathy, the evidence clearly establishes that appellant did not limit his activity to drugletis therapy; he administered drugs.

All the constitutional objections made by appellant were presented in Hitchcock v. Collenberg, supra, thoroughly discussed in that case, and correctly ruled adversely to appellant’s contentions. That case was later affirmed without opinion by the United States Supreme Court, 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718.

The statute under which appellant was charged, § 334.030, provides that violation thereof is a misdemeanor, but no punishment is prescribed. As previously noted, this statute was repealed before the judgment in this case was entered, but the offense of practicing medicine without a license was reenacted as §§ 334.010 and 334.025, RSMo 1959, V.A.M.S. § 1.160 provides that when a statutory provision creating an offense is repealed or amended “the trial and punishment” for such offense shall be had, in all respects, as if the provision had not been repealed or amended “except * * * that if the penalty or punishment for any offense be reduced or lessened by any alteration of the law creating the offense, such penalty or punishment shall be assessed according to the amenda-tory law.” § 334.010, as reenacted effective August 29, 1959, provides that it shall be unlawful for any person not a registered physician within the meaning of the law “to practice medicine,” and § 334.250, as reenacted, provides that any person “who violates section 334.010 shall, upon conviction, be adjudged guilty of a misdemeanor for each and every offense,” but no punishment is prescribed. Therefore, the “penalty or punishment” for the offense of practicing medicine without license was not “reduced or lessened by any alteration of the law creating the offense.” § 556.270 provides that when an offense is declared by statute to be a misdemeanor, “and no punishment is prescribed by that or any other statute” the punishment may be imprisonment in a county jail not exceeding one year or a fine not exceeding one thousand dollars, or both. Apparently the punishment was administered pursuant to this statute. The Attorney General does not take the position that § SS6.270 does not prescribe the punishment, but he states that he feels “duty-bound” to invite the attention of the court to § 564.320, which is as follows: “If any person shall carry on or transact any business or occupation without license therefor, when such license is required by any law of this state, he shall be deemed guilty of a misdemeanor, and when no other punishment is prescribed for such offense, be fined in any sum not exceeding one hundred dollars or be imprisoned in the county jail not exceeding three months, or both.” This section creates an offense constituting a misdemeanor and prescribes the punishment therefor. It is general in its application and is broader than § 334.030 (before its repeal) and broader in its application than §§ 334.010 and 334.250 as reenacted. It creates a separate and distinct offense from that created by § 334.030 (before its repeal) or by §§ 334.010 and 334.250 (as reenacted) which are specific and limited in their application. § 564.320 does not purport to prescribe the punishment for the offenses created by § 334.030 (before its repeal) and it does not constitute the “other statute” referred to in § 556.270. The punishment for the violation of the offense charged is prescribed by § 556.270, and the punishment which was imposed, while constituting the maximum authorized, is within the limits therein set out.

We have examined the record and find no error in regard to the matters referred to in Supreme Court Rule 28.02, V.A.M.R., not required to be preserved by an assignment of error upon an appeal. The judgment is affirmed and the sentence pronounced shall be executed.

PER CURIAM.

The foregoing opinion by STOCK-ARD, C., is adopted as the opinion of the Court en banc.

All concur.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Lawrence HALE, Appellant, v. Dan GOBLE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1961.
    Rehearing Denied May 1, 1962.
    Scott Collins, Prestonsburg, for appellant.
    Tackett & Tackett, Prestonsburg, for appellee.
   WILLIAMS, Judge.

Lawrence Hale and Dan Goble were Democratic candidates for nomination for the office of jailer of Floyd County at the May 23, 1961 primary election. Excluding the votes cast by absentee ballot, Hale received a majority of 82 over Goble, but, including the absentee ballots, Goble received a majority of two over Piale. Goble was certified as the winner by the Floyd County Board of Election Commissioners and was issued a certificate of nomination as the Democratic nominee. Hale filed this contest suit in the Floyd Circuit Court which adjudged Goble to be the duly nominated candidate of the Democratic party for the office of jailer. From that judgment an appeal has been prosecuted to this Court.

The various issues which arose in circuit court have been narrowed on this appeal to a determination of whether the Floyd County Board of Election Commissioners substantially complied with the absentee voting law.

The polls closed at 5 :00 p. m. on Tuesday. No attempt was made by the Board to count the absentee ballots on that day. The Board met the next morn g, on Wednesday, but did not proceed to a count at that time, and early that afternoon an order was entered by the Floyd Circuit Court restraining the Board from counting any of the absentee ballots. On Friday the restraining order was dissolved and the Board was ordered to proceed with the count of the absentee ballots on the next afternoon at 1:00 p. m. The Board met pursuant to that order at 1:00 p. m. on Saturday, opened the ballot box in which the 407 absentee ballots had been kept, and opened the outer envelopes. No further action was taken on that day and the counting was adjourned until Monday. On Monday the Board met again, opened the ballot box, removed the inner envelopes from the box and classified them according to whether they were notarized in the county, out of the county, or out of the state. The names of the absentee voters were called out and a total of 111 votes were challenged. The reason for each challenge was heard by the Board. The Board members decided to count all of the ballots, regardless of whether they were challenged or unchallenged. The inner envlopes were then opened, the ballots taken out and signed, the secondary stubs were removed and the ballots replaced in the ballot box. The box was shaken in order to distribute the ballots which were all taken out again and classified according to magisterial districts. They were then counted and tabulated by magisterial districts. Challengers for the candidates were present at each of the meetings of the Board. Demand was made by various challengers for permission to inspect the envelopes and the affidavits, but inspection was denied by the Board. One Board member announced that each challenge would be referred to a special grand jury and that each challenger would be recognized ’to appear before the special grand jury (under what authority that action was taken we have not been apprised).

We are reminded that it is the policy of the law to sustain elections where the proof is doubtful and to uphold the validity of an election if it can reasonably be done. Drennon v. Roberts, 234 Ky. 574, 28 S.W. 2d 735; Hendrickson v. Coign, 304 Ky. 383, 200 S.W.2d 905; Gross v. West, Ky., 283 S.W.2d 358. Our attention is especially called to the recent case of Jarboe v. Smith, Ky., 350 S.W.2d 490. In that case the Board of Election Commissioners had commenced the count of the absentee ballots in the absence of the contesting candidates. As soon as the presence of each was determined, however, he was admitted to the room where the counting was taking place. This Court noted that there was no attempt to show that any of the ballots counted were not authentic, that no one was excluded from the counting place after his right to be there had been established, that the officials in charge were not guilty of fraud or deliberate wrongdoing, and concluded that there was not such a noncompliance with the law as to invalidate the votes which were otherwise valid.

The facts in that case differ considerably from the facts in this case. There the Board substantially complied with the law. Here there was virtually no compliance with the law. The Board is specifically directed to meet at 6 :00 p. m. on election day and count the absentee ballots. KRS 118.370(3). This it did not do. It is provided by KRS 126.270 that the envelopes shall be removed one at a time from the ballot box. As each envelope is removed it shall be examined and, if found satisfactory, opened, and the inner envelope removed and examined. If the inner envelope is found to be satisfactory the clerk shall read aloud the name of the absent voter and challenge may be made at that time. If the vote is not rejected on challenge the clerk shall open the inner envelope, remove the ballot and write his name on the back. A member of the Board shall then write his name on the back, detach the secondary stub and place the ballot in a regular ballot box. That procedure was not followed. Rather all of the outer envelopes were removed from the ballot box and opened, the inner envelopes were taken out, classified and placed in various stacks. Then they were all opened, the ballots taken out and signed. The secondary stubs were removed and the ballots were replaced in the ballot box. After having been shaken up, they were all removed again, classified by magisterial district and counted.

This Court is always reluctant to disfranchise voters due to irregularities on the part of officers charged with the duty of conducting the election. It is pointed out in Stabile v. Osborne, 309 Ky. 427, 217 S.W.2d 980, that, “while the regulations and procedure prescribed in the absentee voting law should be followed by the officers, a substantial compliance is sufficient if the proper ends are reached.” But, where the measures resorted to involve the almost total disregard of all the requisites of a particular statute, we cannot dismiss such irregularities as minor or technical in character. Ragan v. Burnett, Ky., 306 S.W.2d 281. To say the least, the absentee voting law is difficult to administer. However, it confers a privilege and not an absolute right, and failure of election officials to carry out the provisions of the law may result in disfranchisement of voters taking advantage of it. Referring to KRS 126.270, in Pickard v. Jones, Ky., 243 S.W.2d 46, 49, it was said: “The prescribed procedure is not merely for counting absentee ballots and tabulating the returns. It is part of the process of casting and receiving the ballots. That is the only time and place in which it is done.”

Here there has been virtually a total noncompliance with the procedure prescribed for counting absentee ballots, tabulating returns and considering challenges concerning the absentee voters. We are left with no alternative but to declare that all of the voters who cast the absentee ballots in the race for Democratic nomination for jailer of Floyd County are disfranchised. Warren v. Rayburn, Ky., 267 S.W.2d 720.

Of necessity an appeal could not be taken to this Court until shortly before the regular election day and, under difficult conditions, was ably practiced by the attorneys for each of the parties. The case was decided and an order entered before the election and time was taken for the preparation of this opinion.

Judgment reversed.


text:
    F. H. SAMMONS COAL COMPANY et al., Appellants, v. Leanner Smith STAMPER, Guardian for Franklin D. Smith, Age 8, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1962.
    Rehearing Denied May 1, 1962.

      Richard D. Cooper, Reeves, Barret & Cooper, Hazard, for appellants.
    Cordell H. Martin, Hindman, for ap-pellee.
   WILLIAMS, Judge.

Franklin D. Smith, an eight-year-old boy, was injured when struck by a truck driven by L. R. Sammons. Trial was had in the Knott Circuit Court and the jury returned a verdict of $2500 in favor of Smith’s guardian. This appeal is taken from the judgment entered on that verdict.

The accident occurred in a rural section, but near a small concentration of homes and a general store. Sammons drove his pick-up truck at a speed of less than 40 miles per hour around a slight curve in the highway where he was suddenly confronted with several children playing on and by the highway. At that time he was within 25 feet of the children and immediately started evasion tactics in order to avoid striking them. The Smith boy was on the opposite side of the road. After a car had passed going in the other direction he started across the road and was struck by Sammons’ truck.

The only material conflict in the evidence is where and how the Smith boy was struck. Sammons testified that the evasive actions he took did not take him out of the right-hand traffic lane. He said the Smith boy ran across the road and into the left front fender of the pick-up truck while it was within its proper traffic lane. He further says he did not blow his horn and probably applied his brakes at the time the accident occurred. The truck continued 200 feet beyond the point of the accident. The Smith boy and his witnesses, on the other hand, testified that Sammons came across the center line of the road and that the accident occurred in Sammons’ left-hand traffic lane. The boy was knocked to the pavement and was lying near the center of the road after the accident.

The appellant argues that the testimony of the Smith boy amounts to a judicial admission. He said: “I was on the left of the road. Some boys came down the road. I went over to meet them. As I started back across the road the car came by and some more kids were playing on the other side of the road and the car cut over and hit me to keep from hitting two or three more.” Had this statement been made by a reasoning adult, it possibly would have amounted to a judicial admission. But this witness was only eight years old, and it is obvious from reading all of his testimony that he did not understand to the fullest extent the import of a good many of the questions which were asked. Taking the above-quoted answer out of context does not fairly represent the testimony of the child taken as a whole. Declarations of an infant are to be received with caution. It is the jury’s function to determine the probative force of a declaration made by an infant. 20 Am.Jur., Evidence, section 594.

Notwithstanding the fact that we do not hold this infant chargeable with a judicial admission, the testimony of all the witnesses justifies the conclusion that the accident occurred because Sammons was taking evasive action to avoid striking several other children. There was no declaration that any other course could have been taken which would have proved wiser under the circumstances. Before liability will attach negligence must be shown.

The mere fact that an accident occurs on the wrong side of the road does not of itself indicate negligence. Agee v. Hammons, Ky., 335 S.W.2d 732. No negligence was shown by the action of a truck driver who swerved to the wrong side of the road to avoid striking a child and in so doing collided with another vehicle. Tate v. Collins, 266 Ky. 322, 98 S. W.2d 938. In Pennington’s Adm’r v. Pure Milk Co., 279 Ky. 235, 130 S.W.2d 24, a group of children riding sleds came down a hill around a curve and met a truck going the other direction. The driver swerved to miss one coaster and in so doing struck and killed two others. Judgment entered pursuant to a directed verdict was affirmed. It was held that no showing of negligence was made and that it made no difference that the driver may not have chosen the wisest course in the emergency.

In this case Sammons was suddenly confronted with children in the highway 25 feet ahead of him. Reacting to the emergency he avoided hitting those children and in so doing the accident with the Smith boy occurred. The fact that he continued 200 feet does not indicate excessive speed on his part. There is no showing that he made an attempt to stop immediately and, on the other hand, it appears that he slowed down gradually. No negligence on his part was shown and, under the authority of the cases cited above, it was error to refuse to direct a verdict in his favor. Appellants moved the court for a directed verdict and for judgment notwithstanding the verdict.

Judgment is reversed with directions for the circuit court to enter judgment for appellant.


author: WADDILL, Commissioner.

text:
    PRINCESS ELKHORN COAL COMPANY, Appellant, v. Benton OUSLEY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    Rehearing Denied May 1, 1962.
    Howard, Francis & Howard, Prestons-burg, for appellant.
    W. W. Burchett, Prestonsburg, for ap-pellee Benton Ousley.
   WADDILL, Commissioner.

The crucial question presented on this appeal is whether the Workmen’s Compensation Board, in the absence of a finding of fraud, has jurisdiction to reopen a case (KRS 342.125) when no award or order has been entered in the case by the Board. We answer the question in the negative for the reasons assigned herein.

On May 20, 1955, appellee, Benton Ous-ley, sustained a serious injury while working for the appellant Princess Elkhorn Coal Company. Both parties had elected to operate under the provisions of the Workmen’s Compensation Act. Appellant furnished appellee with medical treatment and paid him compensation for temporary total disability for twenty weeks.

On April 17, 1956, appellee filed an application seeking adjustment of his claim with the Workmen’s Compensation Board. Subsequently, the parties and their attorneys agreed upon a settlement of the claim whereby appellee received $2540, evidently on the basis of a calculated 25% permanent partial disability to the body as a whole. At the time of this payment, compensation board forms 9, 18, and 19 were signed by appellee. Form 9 is used to record the terms of settlement; form 18 constitutes a settlement receipt; and form 19 is provided for the computation of a lump-sum settlement. Although these forms were executed they were kept in appellant’s files and were not forwarded to the Compensation Board for approval. On the same day the settlement was reached, appellee and his attorney signed a motion to dismiss appellee’s application for compensation and filed it with the Board. This motion was sustained and the claim ordered dismissed on January 8, 1957.

On March 17, 1960, appellee filed a motion and affidavits seeking to have his case reopened pursuant to KRS 342.125 on the ground of a change of condition. On April 25, 1960, he filed a supplemental affidavit in support of this motion alleging, in effect, that appellant had perpetrated a fraud by inducing him to enter into an agreement for a settlement of his claim through assurances that he would have five years within which to reopen his case and that the settlement forms would be filed with the Board. The Board determined that an issue had been raised by appellant’s denial of appel-lee’s charges, and following a hearing the Board reopened the case on the basis of mistake and change of condition and awarded additional compensation. The circuit court entered a judgment which in effect affirmed the decision of the Board.

Apparently, the Board and circuit court based their decision on the conclusions reached in Low Moisture Coal Co. v. Vandiver, Ky., 260 S.W.2d 395. In that case, which involved circumstances similar to those in the instant case, we said that a claimant was entitled to have the Board review his case to determine the question of whether the settlement had been obtained by fraud. In the instant case there has been no finding of fraud and it is doubtful whether the averments contained in the affidavits or the testimony introduced upon the hearing of the matter would have justified a finding of fraud. Burke v. Blair, Ky., 349 S.W.2d 836; Pospisil v. Miller, Ky., 343 S.W.2d 392. Consequently the Board erred in treating the unfiled settlement forms as an award which it could review under KRS 342.125. Edgemont Fuel Co. v. Patton, 256 Ky. 538, 76 S.W.2d 284; Langhorne & Langhorne Co. v. Newsome, 285 Ky. 519, 148 S.W.2d 684.

The record reflects that the application for compensation was dismissed by an order of the Board pursuant to appellee’s request. This order was effective and therefore there was nothing pending before the Board upon which it could act. Appellee’s contention to the contrary was rejected in Edgemont Fuel Co. v. Patton, supra.

We conclude that the Board was without jurisdiction to reopen the case.

The judgment is reversed with directions that the circuit court remand the case to the Workmen’s Compensation Board for the entry of an order overruling the motion to reopen the case.


author: CLAY, Commissioner.

text:
    Stephen A. DERRY, Appellant, v. Maurice L. MILLER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Rehearing Denied May 1, 1962.
    Laura Miller Derry, J. B. Gathright, Louisville, for appellant.
    William H. Crutcher, Jr., Louisville, for appellee Miller.
    J. W. Jones, Louisville, for appellee Jones.
   CLAY, Commissioner.

This is an appeal from a judgment settling partnership accounts. In a brief which flagrantly violates each and every provision of Sections (a) and (b) of RCA 1.210, appellant attacks many phases of the proceedings and practically every item of accounting.

For many years appellee Miller had carried on a professional business as a consulting engineer. In 1957 he and appellant by oral agreement entered into a partnership, Appellant claims that he thereby became a general partner of Miller and sought a division of all profits earned over a period of about six months. Miller testified that the partnership was formed for the prosecution of only one particular project. The Chancellor accepted Miller’s version of the partnership arrangement and rendered an accounting with respect to the division of profits earned on this project. The court also allowed appellant’s attorney, whose employment was terminated during the course of these proceedings, a fee of $2,000.

No issue of law is involved on this appeal. The questions determined by the Chancellor arose out of issues of fact. The evidence amply supports the finding that the partnership agreement and activities of the parties related to a single project and that appellant was not a partner of Miller in the conduct of the latter’s individual business.

It is unnecessary to go into the vast number of items challenged hy appellant. A review of the record convinces us the Chancellor correctly allocated items of expense and other charges and made a fair division of the profits of the partnership.

The attorney fee of $2,000 was allowed to J. W. Jones on the basis of his affidavit, certain documentary evidence, and oral testimony heard before the Chancellor. The oral proceedings were not transcribed and are not before us. There is nothing in the record to show that there was error in the allowance of this fee.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    Melva Jo BURK, Appellant, v. Lester C. BURK and Wife, Florence Burk, Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    Rehearing Denied May 1, 1962.
    Walter Chyle, Jr., Bennett Bratcher, Mor-gantown, for appellant.
    W. A. Moore, Otis White, Morgantown, for appellees.
   MILLIKEN, Judge.

The appellees, paternal grandparents of three-year old Leah Shannon Burk, are citizens of Texas where they were awarded custody of the child for nine months of the year by a Texas judgment of divorce between their son (since killed in. an air crash) and his wife, the appellant, Melva Jo Burk, who was awarded custody of the child for the months of June, July and August. The mother, Melva Jo, brought the child to Kentucky after the grandparents had surrendered possession on June 1, 1961, in compliance with the Texas judgment. When September came Melva Jo refused to surrender her to the grandparents who promptly filed a habeas corpus action and were adjudged entitled to possession of the child, the judgment appealed here.

In July, while she had legal custody and possession of the child in Kentucky, Melva Jo sued to gain exclusive custody, an action which had not been determined at the time the grandparents were found entitled to possession in the present habeas corpus action. It is Melva Jo’s contention that the child should not be returned to her Texas grandparents until Melva Jo’s prior suit for exclusive custody is determined. The Texas judgment clearly is entitled to full faith and credit in this state (KRS 422.040) and the grandparents entitled to return of the child, unless the mother’s pending action for exclusive custody deters the trial court in any way from passing on the issue presented in the habeas corpus action of who was entitled to immediate possession of the child in September, 1961. This contention is discussed in Dake v. Timmons (1955), Ky., 283 S.W.2d 378, citing cases, and we rejected the view advocated here by Melva Jo. The grandparents were entitled to immediate possession of the child in conformity with the Texas judgment.

The judgment is affirmed.


author: HOLLINGSWORTH, Judge.

text:
    Elva SUTTON and Titus Sutton, Appellants, v. FOX MISSOURI THEATRE COMPANY, a corporation, and The City of Joplin, Respondents.
    No. 48675.
    Supremo Court of Missouri, Division No. 1.
    April 9, 1962.

      William H. Burden, Joplin, Edward V. Sweeney, Monett, for appellants.
    Karl W. Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for respondent Fox Missouri Theatre Co.
    Loyd E. Roberts, Joplin, for respondent City of Joplin.
   HOLLINGSWORTH, Judge.

Plaintiffs Elva Sutton and Titus Sutton, wife and husband, seek damages in the total sum of $40,000 from Fox Missouri Theatre Company, a Corporation, and the City of Joplin, resulting from personal injuries sustained by Mrs. Sutton on December 26, 1957, when her foot caught upon the base of a recruiting sign placed and maintained by the U. S. Naval Department upon a public sidewalk in the City of Joplin in front of the entrance to the Fox Theatre, causing her to trip and fall upon the sidewalk as she attempted to walk through a crowd of Fox’s patrons standing in front of its theatre awaiting admission. The petition alleges Mrs. Sutton’s damages for personal injuries in the sum of $35,000 and Mr. Sutton’s damages for loss of her services and consortium and for medical expenses incurred in the sum of $5,000.

The case has been twice tried. At the first trial, the court, on motion of each defendant filed at the close of plaintiffs’ evidence, directed a verdict in favor of both defendants. On appeal to this court from the judgment entered in accordance with that verdict, it was held that the trial court erred in directing a verdict in favor of defendants and the judgment was reversed and the cause remanded for further proceedings not inconsistent with the views in the opinion expressed. 336 S.W.2d 85. Reference is here made to that opinion for the “law of the case” as therein stated.

At the instant trial, the jury, following submission of the case at the close of the evidence adduced in behalf of all of the parties, returned a verdict in favor of defendants. Plaintiffs have again appealed from the adverse judgment rendered in accordance with that verdict, contending primarily that the court committed prejudicial error in the giving of numerous instructions in behalf of defendants.

Plaintiffs’ case against Fox was submitted under plaintiffs’ Instruction No. 1. It, in substance, directed a verdict for plaintiffs if the jury found that on the 26th day of December, 1957, on invitation of Fox a crowd of people was assembled on the public sidewalk in front of the theatre for the purpose of purchasing tickets for admission to a matinee show; that Fox negligently failed to require the crowd to form an orderly line and leave a portion of the sidewalk open for unobstructed use by the public; that Fox negligently caused and permitted the crowd to obstruct the sidewalk and surround and obscure reasonable visibility of the sign located on the sidewalk in the vicinity of the theatre ; that Mrs. Sutton was endeavoring to walk southward on the sidewalk through the crowd; that she tripped over the base of the sign, fell and was injured; that her injuries were caused by the negligence of Fox in the particulars aforesaid; and provided the jury further found that she was exercising ordinary care for her own safety. The instruction also declared that if the jury should further find that Mrs. Sutton was the wife of Titus Sutton and that as a direct result of her injuries he sustained loss of her services, etc., and incurred certain expenses, the jury should find in his favor.

Plaintiffs’ case against the City of Joplin was submitted under plaintiffs’ Instruction No. 2. After declaring the duty of City to exercise ordinary care to maintain its sidewalks in a reasonably safe condition for persons traveling thereon while exercising care for their own safety, it, in substance, directed a verdict for plaintiffs if the jury found that on and prior to December 26, 1957, the sidewalk in front of the theatre was heavily traveled; that at times Fox’s patrons crowded the sidewalk in the vicinity of the theatre ; that, considering the traffic conditions as shown by the evidence, the sign constituted an obstruction of the sidewalk and rendered it not reasonably safe for persons lawfully traveling thereon; that City, in the exercise of ordinary care, could have known of the presence of the sign on the sidewalk in time to have removed the same; that City, by permitting the sign to remain on the sidewalk in the vicinity aforesaid3, failed to exercise ordinary care and was negligent; that on December 26, 1957, a crowd of people was assembled on the sidewalk in front of the theatre preparatory to entering as customers; that while said crowd was so congregated Mrs. Sutton was endeavoring to walk southward through the crowd; that she tripped and fell over the sign and was injured; that her injuries were caused by the negligence of City as aforesaid; and provided the jury further found that she was exercising ordinary care for her own safety. The instruction also submitted Mr. Sutton’s case against City substantially as submitted in Instruction No. 1.

We find no material variation in the evidence adduced in behalf of plaintiffs at the second trial from that adduced at the first trial, but, for convenience, we narrate such portions thereof as are necessary to a determination of the questions here presented.

Main Street in Joplin runs north and south. Fox Theatre, engaged in showing motion pictures, is and since 1955 has been located on the east side of the street, at 415 Main, in the “downtown” portion of the city. The front of the building is 18.7 feet in width. The sidewalk in front of the theatre and for several “doors” north and south thereof is approximately 10.4 feet in width from the building line to the curbline. The ticket office, situate in the center of the front of the building, sits back (east) from the building line a distance of three feet, four inches. Entrances into the theatre are on each side of the ticket office.

The naval recruiting sign over which Mrs. Sutton tripped had been maintained by the U. S. recruiting service upon the sidewalk in front of the theatre for an unstated number of years, but its position upon the sidewalk was changed from time to time; sometimes it was placed near the curbline opposite the south end of the building; sometimes it was placed in like position opposite the north end; sometimes it was placed on the sidewalk directly in front of the building. The city police department regularly and frequently patrolled the area in which the sign was located and City knew it was maintained on Main Street in the vicinity of the thea-tre and that its location was changed from time to time, but the chief of police, called as a witness by plaintiffs, denied that he 'had ever seen it directly in front of the theatre, stating that “sometimes it’s up to the north of the Fox Theatre, * * * sometimes at the south end, * * * very seldom in the center, I have never seen it in the center because we keep that open, try to.” The sign, a picture of which is shown in the first opinion, 336 S.W.2d 1. c. 88, is rectangular in shape and may be thus roughly described: Two inches thick, 30 inches wide, and 45 inches long. Four iron braces flare out from its lower corners and are attached to iron bars that rest upon the sidewalk, to form a base 35 inches across and 34 inches from front to back. Its overall height, from sidewalk to top, is 59 inches.

On the day in which plaintiff was injured, December 26, 1957, and daily since December 21, 1957, Fox had advertised in both Joplin newspapers and showed in its thea-tre. the following program:

Holiday Hilarity!
JERRY LEWIS as “The Sad Sack”
At 3:59 — 7 & 10:10
“THE PERSUADER’”
Shown at 2:44 — 5:51 & 8:58
WALT DISNEY CARTOON
Cont. From 2:30 — 25‡ & 75‡

At the time of the second trial, Mr. and Mrs. Sutton were, respectively, 74 and 66 years of age. On the date she was injured, she and Mr. Sutton were living and had lived for 13 years on North Joplin Street, in the City of Joplin. About two o’clock on that afternoon they started to walk down town to go to Macy’s Store, which is on Main Street south of the Fox Theatre. In so doing, they walked south along the east side of Main Street more than four blocks before coming to the theatre. As they approached the theatre, about 2:15 p. m., Mr. Sutton was walking beside Mrs. Sutton and had hold of her arm. When they came to the theatre, there was a dense crowd, composed mostly of children and teenagers, occupying the entire sidewalk in front of the theatre, standing as close together as persons could stand, and they were “milling around.” As she and her husband tried to “edge”, “elbow our way” through the crowd, he stepped behind her. She saw the lady in the ticket office but did not think she had started selling tickets. There was no one directing or controlling the crowd in any way. Mrs. Sutton is only five feet tall and could not see the sign until she got “right up to” it, “maybe a couple of feet or something like that.” She then could see about two feet of its top in front of her face and knew that she could not walk through it, so she turned to her left (the east) to get around it, at which time she could not see its base, her right foot became caught on the angle of the base, which caused her shoe to be torn from her foot and her to fall headlong to the southeast into or in the direction of the south entrance into the theatre. When she confronted the sign and tripped over it, it was sitting on the sidewalk directly in front of the ticket office and about 12 to 14 inches back from the curbline. Prior to the occasion in question, she had seen the sign in front of the theatre on numerous occasions, but had merely glanced at it, never noticed its base,'or how it was supported. The fall did not render her unconscious, but it dazed her. She lay as she had fallen until Mr. Sutton helped her up and they then walked to Ramsey’s Store, where she became ill from her injuries and they went to consult a doctor, who sent her to a hospital.

On cross-examination, Mrs. Sutton testified: She had seen the sign two or three times a week for a period of thirteen years prior to the time she fell and had passed by it when there were several people in front of it. When that occurred, she would walk around the people, up close to the building. At the time she was hurt, she was aware that she was at the sign and needed to go around it. But she had never noticed whether the sign stood on legs or how it was supported. From time to time, it would be at different places on the sidewalk. On this occasion no one jostled her as her foot caught on the east side of the base. The crowd kept her from seeing the base. She was looking up the street and at the crowd when she started around the sign. At the time she tripped, the crowd was standing close up to and all around the sign, people to the left of it, but she struck no one as she fell. As she and Mr. Sutton came toward the theatre, they first encountered the crowd about two doors north of the theatre and it extended south one or two doors beyond the theatre, but it was not as dense on either side as it was in front of the theatre.

Titus Sutton testified: He and Mrs. Sutton had to push their way through the crowd in front of the theatre. The sign was in front of the ticket office on this occasion. He had seen it in that position many times. He followed Mrs. Sutton as she stepped first to the right, then to the left, in a zigzag fashion, working her way south. When Mrs. Sutton came in front of the north side of the sign, she made a step to her left and her foot became caught. When she had fallen, she lay with her head to the southeast into or near the south entrance into the theatre. There was no usher or any attendant around. Neither was the crowd lined up in any orderly manner, nor any unobstructed way through which he and Mrs. Sutton could walk southward past the theatre. He estimated the crowd in front of the theatre to consist of ISO to 175 persons as he and Mrs. Sutton undertook to go through it.

The evidence in behalf of defendants, insofar as here material, tended to show that on the day Mrs. Sutton was injured the sign was placed so that only a few inches of the northernmost portion of its base encroached north of the south line of the thea-tre building and that all of the remainder thereof was south of that building line; that several witnesses, including the theatre manager and ticket agent, city police officers and merchants whose business places were adjacent to the theatre, had never seen the sign in any other position; that 163 patrons entered the theatre between 2:00 and 3 :00 p. m.; that the crowd in front of the theatre was not as large as plaintiffs’ evidence tended to show; that there were fewer patrons on that day than on the previous days at which the same program was presented; and that numerous persons other than patrons of the theatre were upon and using the sidewalk in front and on both sides of the theatre that afternoon.

Plaintiffs challenge Instruction No. 8 given in behalf of Fox and No. 22 given in behalf of City. They insist that each instruction placed upon plaintiffs the burden of disproving Mrs. Sutton’s contributory negligence; and that each instruction constituted misdirection and was confusing and misleading. The instructions, although not identically phrased, are similar in import and content, and insertion of one of them will suffice for discussion of the complaints made against both. Instruction No. 8 reads :

“The Court instructs the jury with reference to the charge of negligence made by plaintiffs against defendant Fox Theatre that under the laws of this state the - burden of proof throughout this case' has>rested, and still continues to rest, upon plaintiffs to prove by the preponderance or. greater weight of all the-credible evidence every fact which, under the instructions of the court, they are required to prove in order to make out their case against defendant Fox Theatre, and the law does not require defendant Fox Theatre to disprove any element of plaintiffs’ case.
“Further in this regard if you find the evidence as to any one of such facts (which plaintiffs are required to prove) is in favor of defendant Fox Theatre, or even if you believe the evidence as to any one of such facts is evenly balanced between plaintiffs and defendant Fox Theatre, then plaintiffs have failed to make a case against said defendant and it is your duty to return a verdict in favor of defendant Fox Theatre, and this is true regardless of how your verdict may be against defendant city.”

At the outset of this discussion we are confronted with an anomalous situation to which we find no reference in any of the briefs. Among the instructions given in behalf of plaintiffs was No. 27, which correctly placed upon each defendant the burden of proving its plea of contributory negligence on the part of Mrs. Sutton. But when we turn to plaintiffs’ verdict-directing instructions (Nos. 1 and 2 hereinabove abstracted) we find that plaintiffs themselves, in the last clause of each of their verdict-directing instructions, expressly predicated any finding by the jury in their behalf against either defendant upon the admonition, “provided you find that plaintiff, Elva Sutton, was exercising ordinary care for her own safety.” Unquestionably, plaintiffs thereby assumed and placed upon themselves the burden of disproving Mrs. Sutton’s contributory negligence as a condition precedent to their right of recovery It is possible that plaintiffs, desirous of avoiding any phraseology in their verdict-directing instructions carrying even a suggestion that recovery might be denied them because of Mrs. Sutton’s contributory negligence, so phrased their verdict-directing instructions without intending the net result with which the jury was (and this court is) confronted, to wit: confusing, if not conflicting, instructions on the burden of proving contributory negligence on the part of Mrs. Sutton, both given at the request of plaintiffs. Inasmuch as the cause must be reversed and remanded on other grounds, we need not further consider the situation thus presented; it may be avoided in any future trial.

However, we would be remiss if, in thus dismissing the challenge made against the foregoing instructions, we leave the impression that we otherwise approve them. In 1933, in the case of Mitchell v. Dyer, Mo., 57 S.W.2d 1082, 1083, Division No. 2 of this court pointed out that: “A short, simple instruction, telling the jury that the burden is on plaintiff to prove his case by a preponderance or greater weight of the credible evidence, and that unless he has done so the jury must find for defendant, ought to be sufficient to inform the jury what plaintiff is required to do. A plain declaration to that effect will be easily understood by a jury. The more the instruction is elaborated upon, the more complex it becomes and the more it is likely to be misunderstood. We are not deciding that the giving of this instruction alone would constitute reversible error, but we are criticizing it so that it will not be given again.” Moreover, this and our other appellate courts again and again have called attention to the evils of burden-of-proof instructions that go beyond the simple requirements above set forth. See, among numerous other cases, Rouchene v. Gamble Construction Co., 338 Mo. 123, 89 S.W.2d 59, 63; Phillips v. Vrooman, 361 Mo. 1098, 238 S.W.2d 355, 360 [9-11]; Nelson v. Tayon, Mo., 265 S.W.2d 409, 414-415; Ledkins v. Missouri-Kansas-Texas R. Co., Mo., 316 S.W.2d 564, 569 [7], [8]. Despite these continued admonitions, we find our case reports increasingly encumbered with the perplexing problems arising from the continued giving of instructions such as these, all of which could have been avoided had the suggestions theretofore repeatedly urged by this court been heeded. See Szuch v. Ni Sun Lines, Inc., 332 Mo. 469, 58 S.W.2d 471, 473; Bleil v. Kansas City, Mo., 70 S. W.2d 913, 915; Cornwell v. Highway Motor Freight Line, 348 Mo. 19, 152 S.W.2d 10, 12-13; Nelson v. Wabash R. Co., Mo. App., 194 S.W.2d 726, 730; Palmer v. Lasswell, Mo., 287 S.W.2d 822, 829; Adams v. City of St. Joseph, 360 Mo. 806, 230 S.W. 2d 862, 863-864; Byrd v. McGinnis, Mo., 299 S.W.2d 455, 458 [3], [4]; Jewell v. Arnett, Mo., 318 S.W.2d 277, 278-279 [1].

The instructions discussed in each of the above-cited cases were ruled good or bad in the light of the situation there found and the instructions here under consideration must be weighed in the same manner. When it is noted that there were 28 instructions given in this case, it is inconceivable that any lay jury, without more specific guidance, could intelligently search out, evaluate and determine from this mass of technically worded directives (1) the specific details of the charge of negligence leveled against each defendant; (2) every fact "which, under the instructions of the court,” (not even specifying by number either of the verdict-directing instructions) plaintiffs were required to prove in order to “make out their case” against each defendant; (3) what constituted “any element of plaintiffs’ case” (one element of which, under proper instructions, would necessarily include a determination by the jury that defendants had not proved Mrs. Sutton’s contributory negligence); and (4) then give intelligent and understanding consideration to the legal niceties arising when “any one of such facts is evenly balanced” between plaintiffs and each defendant. (Defendants could easily have obtained an intelligent consideration of most of these matters had they resorted to the simple expedient of submitting a true converse instruction as to each verdict-directing instruction given in behalf of plaintiffs.)

We are convinced that in this case the situation was such that the instructions here in question, even if not amounting to positive misdirection in some respects, definitely were calculated to tend to leave the jury in utter confusion. So again we say: “A short, simple instruction, telling the jury that the burden is on plaintiff to prove his case by a preponderance or greater weight of the credible evidence, and that unless’ he has done so the jury must find for defendant, ought to be sufficient to inform the jury what plaintiff is required to do. A plain declaration to that effect will be easily understood by a jury.” And we say further that any burden-of-proof instruction that essays more must on review be considered in the light of the criticism here directed against more involved instructions. The trial court could not be convicted of error in insisting that this admonition be heeded.

Plaintiffs next contend that defendant Fox’s Instruction No. 9 was prejudi-cially erroneous. It reads as follows:

“The court instructs the jury that if you find from the evidence that Mrs. Sutton’s view of the base of the sign was blocked by persons on the sidewalk who were not patrons or customers of the Fox Theatre, or if you are unable to determine from the evidence whether the persons who blocked her view of the base of the sign (if you find her view was blocked) were patrons of the the-atre or were customers of other business establishments or pedestrians on the sidewalk not going to the Fox The-atre, then in either of such events you will find your verdict in favor of Fox Theatre.”

In the first opinion, 336 S.W.2d 85, 1. c. 94, we held that the evidence would support a jury finding: “(1) that the crowd assembled in front of the theatre was predominantly composed of Fox patrons awaiting admission thereto; (2) that it was assembled at the instance of Fox for the benefit of Fox; (3) that, while the crowd, as such, presented no hazard to the safe progress of Mrs. Sutton, yet, as it stood and ‘milled around’ the sign, it prevented Mrs. Sutton, in the exercise of ordinary care for her own safety, from seeing and appreciating the hazard of attempting to step around its extended base; (4) that Fox was chargeable with notice of the location of the sign and was chargeable with notice of the hazard thus presented; and (5) that the ‘artificial condition’ thus created on the sidewalk by Fox, in causing and permitting the crowd assembled by it for its own benefit to gather so closely around the sign as unreasonably to endanger safe passage along the sidewalk by Mrs. Sutton, imposed upon Fox ‘the exercise of reasonable care to guard the public from injury in such use.’ ”

The only testimony touching upon the manner in which Mrs. Sutton was injured was that of Mr. and Mrs. Sutton. Their testimony, as stated, tended to show she was caused to trip upon the base of the sign because it was obscured by the crowd awaiting admission into the theatre. Now, it is of course true that the jury was not required to believe that testimony, but there is not a scintilla of evidence in the case warranting an affirmative finding that her view of the base of the sign was blocked by persons on the sidewalk who were not patrons or customers of Fox Theatre. Consequently, the court erred in authorizing the jury to arrive at an affirmative finding of that fact. Moreover, the last clause of the instruction is also misleading and erroneous. Obviously, the jury could have found that the unregulated crowd of theatre patrons was a direct cause of Mrs. Sutton’s view of the base of the sign being blocked, irrespective of whether the particular person or persons who blocked her view were patrons of the theatre or mere pedestrians who found themselves in the same predicament as did Mr. and Mrs. Sutton.

Plaintiffs next contend that Fox’s Instruction No. 12 was prejudicially erroneous. It reads:

“The court instructs the jury that the mere fact that Mrs. Sutton fell and injured herself at a time when there were people on the sidewalk in front of the Fox Theatre (if so) does not in and of itself entitle plaintiff to recover.
“The court instructs the jury that the defendant Fox Theatre is entitled to make a reasonable use of the public sidewalk, including locating its box office at such a point that people will stand on the sidewalk while purchasing or waiting to purchase tickets, provided the sidewalk does not become unreasonably crowded.
“Therefore, if you find from the evidence that on the occasion of Mrs. Sutton’s fall defendant Fox Theatre was doing nothing more than to make a reasonable use of the public sidewalk in front of its theatre, then you are instructed that your verdict will be in favor of defendant Fox Theatre.”

The first paragraph of the instruction cast no light upon any issue or contention made by plaintiffs in this case and the reason for giving it remains unexplained, but we pass on to the remaining paragraphs. Those paragraphs gave to the jury a roving commission to find a verdict in favor of Fox if they found the theatre was doing nothing more than to make a reasonable use of the sidewalk for its patrons provided the sidewalk did not become unreasonably crowded, irrespective of its liability (as declared in the first opinion) for bodily injuries caused to Mrs. Sutton by reason of failure to exercise ordinary care to maintain the sidewalk in a reasonably safe condition resulting from the private use thereof by Fox for the benefit of Fox, as a waiting area for its patrons, which exposed her, a traveler upon the sidewalk, to danger of tripping over the sign. For the reasons more fully stated in the original opinion, the instruction was obviously misleading and prejudicially erroneous.

Plaintiffs next contend that Instruction 16-A is prejudicially erroneous. It reads:

“ * * * if you find * * * the recruiting sign mentioned in evidence was not located on the public sidewalk in front of the ticket office of the Fox Theatre as claimed by plaintiffs but that said sign was located on the public sidewalk south of the theatre * * * and if you further find there were children, teenagers or other persons on the sidewalk in front of the 'box office but that by reason of the location of the sign as stated above, if you find that it was so located on the public sidewalk south of the theatre * * *, and that the sign was not obscured from reasonable visibility of plaintiff as she approached said sign, then you are instructed that your verdict must be for the defendant Fox Theatre, regardless of what your verdict may be with respect to the city.”

Plaintiffs insist that there was no evidence to support an affirmative finding (a) that the sign was not located in front of the theatre on the day Mrs. Sutton was injured, or (b) that “the sign was not obscured from reasonable visibility of [Mrs. Sutton] as she approached” it. Fox insists that the instruction submitted facts, the existence of which would controvert an essential factual element of plaintiffs’ case, to wit: that Mrs. Sutton’s view of the base of the sign was obscured. An examination of the record convinces us that there was sufficient evidence from which the jury could infer from evidence adduced in behalf of Fox that the sign was not in front of the theatre on the day in question and plaintiffs’ challenge to that portion of the instruction must be denied. But there is not a scintilla of evidence upon which to base an affirmative finding that (if the sign was in front of the theatre) its base was not obscured from reasonable visibility of Mrs. Sutton as she approached it. Both plaintiffs had positively testified that it was so obscured and there was no other evidence touching upon that phase of the case. Con-cededly, when the defendant submits a true converse instruction, i. e., to the effect that unless the jury finds in favor of plaintiff each and every (or one or more) of the facts essentia? to his case, the verdict must be for defendant, it is not necessary that defendant support the instruction by evidence tending to disprove those facts. This, for the reason that the burden rests upon plaintiffs to prove every fact essential to his case before he is entitled to recover. But where, as here, the defendant submits an affirmative finding of facts, the existence of which would disprove an essential fact of plaintiffs’ case, that submission must have factual support in the testimony. Liebow v. Jones Store Company, Mo., 303 S.W. 2d 660, 662-663. Instruction 16-A, for the reasons stated, was prejudicially erroneous.

Plaintiffs next contend that Instruction 17, given in behalf of City, is prejudicially erroneous. It reads:

“The court instructs the jury that the law does not require the City of Joplin to keep sidewalks free of all objects that may impede the travel of pedestrians using said sidewalk, therefore you are instructed if you find that the plaintiff Elva Sutton on the day and at the place mentioned in the evidence fell or tripped over a United States recruiting sign on the sidewalk in front of or near the Fox Theatre in the City of Joplin (if you so find,) yet if you further find that said sign did not unreasonably obstruct pedestrian traffic at said time and place (if you so find) then your verdict must be for the defendant City of Joplin and against the plaintiffs.”

City attempts to justify the instruction by the use of a statement of this court found in the original opinion, wherein we said in part, 336 S.W.2d 1. c. 91: “Its first contention is that ‘obstructions placed upon the street for the benefit of the public do not render the street defective unless they unreasonably obstruct or endanger public travel/ citing in support thereof 19 McQuillin, Municipal Corporations, 3rd Ed., pages 196-197, 239, and Freeburne v. City of Emporia, 176 Kan. 503, 271 P.2d 298. We find no fault with that contention.” (Emphasis supplied.) But counsel fails to note that immediately thereafter we defined the issue thus: “The question to be determined is, therefore, whether a jury would be warranted in finding that a sign of the size and form here shown, placed and maintained upon a public sidewalk in front of a theAtre at which crowds frequently assemble, would, under the circumstances here shown, unreasonably obstruct and endanger public travel — a question we later herein explore.” (Emphasis supplied.) Counsel also fails to note that the opinion then went on to overrule City’s contention that, in allowing the sign to be placed upon the sidewalk, it was performing a governmental function for the benefit of the public, following which we further said, 1. c. 92: “The law in Missouri is clear that it is the primary and non-delegable duty of the city to exercise ordinary care to keep its streets in a reasonably safe condition for travel”; and that, 1. c. 92, we thereafter quoted with approval from an earlier case as follows: “ ‘A city owns and controls its streets as a trustee for the public. It, therefore, stands charged by the law with the primary and bounded duty of keeping them free from nuisances, defects and obstructions caused by itself or by third parties if it (in the latter instance) had actual or constructive notice thereof in time to abate the nuisance, remove the obstruction, or repair the defect.’ ” Moreover, we thereafter further expressly held, 1. c. 93: “But, we are convinced that when it is shown, as the evidence herein tends to show, that the sign and especially the base thereof was closely surrounded by a dense crowd of people so as to obstruct a view of its base and endanger the safety of a person using the sidewalk in the exercise of ordinary care for his own safety, then a duty rested upon the City to cause its removal or to warn travelers using the sidewalk of the hazard existing, if the City in the exercise of ordinary care knew or should have known of the condition.”

Considered in the light of the law as above declared, the opening statement in the instruction is erroneous and misleading. The law requires the City to exercise ordinary care to keep its streets in a reasonably safe condition for travel. The issue, as declared in the opinion, was not whether the sign merely unreasonably obstructed pedestrian traffic; it was whether, under the circumstances shown in evidence, the City exercised ordinary care to keep the street in a reasonbly safe condition for such travel. The instruction not only falls far short of meeting that issue, it leaves the fate of plaintiffs’ action to the ideas of the jury, not as to whether the street had been rendered unsafe for travel by Mrs. Sutton by reason of the City’s negligent failure to comply with primary and non-delegable duty, but merely whether the sign unreasonably obstructed pedestrian travel. The instruction was clearly erroneous.

Plaintiffs next contend that Instruction No. 19 given in behalf of City was prejudicially erroneous. It reads:

“The court instructs the jury that if the plaintiff, Elva Sutton, on the day and at the place mentioned in the evidence, knew of the existence of the United States Naval recruiting sign, she had the duty to exercise her faculties to see and discover any dangers that she might encounter because of the existence of such sign upon the street at the point mentioned in the evidence, and if she failed so to do, and by reason of such failure, if any, was thereby injured, then the plaintiff was guilty of contributory negligence as defined in other instructions of this court and your verdict will be for the defendants and against the plaintiff and this is true even though you may believe the City of Joplin was negligent in permitting such sign to be upon the street at the time and place mentioned in the evidence.”

The City cites in justification of the instruction the cases of Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566; Woodson v. Metropolitan Street Ry. Co., 224 Mo. 685, 123 S.W. 820, 823, 30 L.R.A.,N.S., 931; Wienshienk v. Phillips Petroleum Co., Mo. App., 259 SW.2d 414, 416. Neither of them justifies the instruction. In fact, each of them expressly declares the duty of travelers to exercise ordinary care in the use of their faculties to avoid injury. The first opinion in this case, 336 S.W.2d, 1. c. 91, discusses at length the several factors with which, according to the testimony, Mrs. Sutton was confronted as she walked through the crowd and expressly pointed out that “the facts shown in evidence, considered from the standpoint of whether Mrs. Sutton was in the exercise of ordinary care under the circumstances shown, presented a jury question as to her contributory negligence.” The instruction in this case ignores those factors and, in effect, directs a verdict against plaintiffs on grounds of contributory negligence of Mrs. Sutton, if, through use of her faculties, she could have seen the base of the sign, regardless of whether, under the circumstances shown in evidence, she was exercising the degree of care ordinarily exercised by the ordinary person under the same or similar circumstances. The instruction is prejudicially erroneous.

Plaintiffs next contend that Instruction No. 20, given in behalf of City, was prejudicially erroneous. It reads:

“The court instructs the jury that the mere fact that plaintiff was injured by a fall upon the sidewalk mentioned in the evidence in the City of Joplin (if she was), is no evidence of itself, that the defendant City of Joplin was negligent in keeping said sidewalk in a reasonably safe condition for pedestrian use. The plaintiff must show by the evidence that the defendant City of Joplin failed to use ordinary care as defined in these instructions in maintaining said sidewalk for pedestrian use and the burden of proof is upon the plaintiff to establish such want of ordinary care by the greater weight of the evidence.”

The instruction is unquestionably preju-dicially erroneous. In the first place, there is no evidence of the “mere fact” of Mrs. Sutton’s falling upon the sidewalk. The actual evidence in the case was that she tripped upon a sign that was maintained upon the sidewalk and fell to the sidewalk. We may assume that the “mere fact” that she tripped upon the sign alone would not, standing alone, make a submissible case of negligence against the City, but, as this court said in an analogous situation: “[W]e believe it to be absolutely untrue to say that the mere fact that plaintiff was ‘injured by a fall’ upon City’s street was no evidence of itself that defendant was negligent.” Rittershouse v. City of Springfield, Mo.Sup., 319 S.W.2d 518, 520. We need not herein further discuss the many cases wherein the effect of other “mere fact” instructions is considered. See generally Citizens Bank of Festus v. Missouri Natural Gas Co., Mo.Sup., 314 S.W.2d 709, 714, 72 A.L.R.2d 855; Grote v. Reed, Mo., 345 S.W. 2d 96, 99-101; Jones v. Kansas City, Mo. Sup., 243 S.W.2d 318, 321-322; and cases cited in each.

Plaintiffs next contend that Instruction No. 11 given in behalf of Fox and Instruction No. 18 given in behalf of City are erroneous. These instructions hypothesize in detail the testimony of plaintiffs upon which each of defendants submits a finding that Mrs. Sutton was guilty of contributory negligence. The instructions are also similar in that both omit any reference whatever to the testimony favorable to plaintiffs on the issue of Mrs. Sutton’s contributory negligence. In the original opinion we discussed the effect of the facts as submitted in Instructions Nos. 11 and 18, saying of them, 336 S.W.2d 1. c. 90: “They (defendants) point out that she had passed the theatre on may occasions; had seen the sign and well knew that it long had been maintained in front of the theatre; that on the day in question she was confronted with and saw the sign before tripping upon its base and was conscious of the fact that she had to go around it; that ordinary care for her own safety required her to exercise the diligence of a reasonably careful person confronted with a like situation to avoid tripping over its base; and that these facts, ■ considered in the light of the cases cited, conclusively establish as a matter of law that she failed to exercise the care so required of her. Were the facts as simple as those upon which defendants premise their conclusion, we would he inclined to agree with them, but they are not.” We then further stated, 1. c. 90: “[W]e would have no hesitancy in holding that any person approaching the sign in daylight upon an uncrowded street in a position to see it in its entirety and observe the flaring out of the irons supporting it and whose attention was not otherwise reasonably distracted would be chargeable with negligence if he tripped over it in attempting to avoid coming into contact with it. That, however, is not the situation here presented. Here, Mrs. Sutton was confronted with the necessity of threading her way through a ‘dense’ crowd that extended from the curb to the building line, not only in front of the theatre but also on both sides of it. She was not as tall as the average height of the crowd and was primarily intent upon getting through the crowd and, to some extent, necessarily distracted by it. She did not and, it may be inferred, could not see the sign until she was immediately in front of and so close upon it that she could not see its base.” Then, basing our conclusion upon those premises, we held that we could not declare as a matter of law that ordinary care on her part would require her to anticipate that defendants would permit to remain upon a public sidewalk in front of the theatre (at which a crowd of patrons stood) a sign with a base so constructed that it could catch her foot in attempting to go around it or that ordinary care would require her first to ascertain that the sign was supported by iron braces flaring out from its lower corners.

We are, therefore, clearly of the opinion that Instructions Nos. 11 and 18 were preju-dicially erroneous. They single out and emphasize portions of plaintiffs’ evidence that, standing alone and out of context with other portions of their testimony, would be persuasive of Mrs. Sutton’s negligence, and authorize the jury to so convict her of negligence without giving- consideration to the remainder of plaintiffs’ evidence, which we held was sufficient to support a finding that she was not guilty of contributory negligence. Instructions such as these cannot be approved. See Conley v. Fuhrman, Mo., 355 S.W.2d 861, not yet officially reported.

Fox would have us again review the original contention made by it on the first appeal, that Mrs. Sutton was guilty of contributory negligence as a matter of law. For the reasons stated in the first opinion, we are still constrained to hold she was not.

The judgment is reversed and the cause is remanded for further proceeding not inconsistent with the views herein expressed.

All concur.

      . Plaintiffs’ evidence showed and the instruction should have hypothesized “in front of the theatre.”

      . See footnote No. 1.


author: COIL, Commissioner.

text:
    Annie GITTERMAN, Respondent, v. Andy E. DANELLA, doing business as ABC Exterminators, and Charles “Chuck” Taylor, Appellants.
    No. 48667.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied April 9, 1962.

      Lucian Lane, John Murphy, Kansas City, for appellants; Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, of counsel.
    Arthur C. Popham, Kansas City, for respondent; Ira K. Witschner, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   COIL, Commissioner.

Annie Gitterman sought $100,000 as damages for. alleged personal injuries sustained as a resúlt of defendants’ averred negligence in spraying a store to exterminate insects. The jury found for defendants. Plaintiff was awarded a new trial on the ground that the trial court erred in giving contributory negligence instruction 9. Defendants have appealed and contend the instruction properly submitted the question whether plaintiff was guilty of contributory negligence. Plaintiff contends the instruction was erroneous in form and that there was no evidence justifying the submission of the issue.

The only testimony in the transcript is that of plaintiff. There follows a summary of that testimony viewed from a standpoint favorable to defendants. Mrs. Gitterman owned a furniture store in Kansas City consisting of six separate in-line rooms separated by open archways. Several months prior to the incident in question, she had made arrangements with ABC Exterminators to periodically spray the store for the purpose of exterminating vermin and insects. At that time she specifically inquired whether the spraying would be dangerous to people in the store and was assured by the ABC representative that it would not. Subsequently, from time to time, she had noticed ABC employees spraying but she had not spent much time in the store during those periods and had not paid much attention to the process. In the morning of November 15, 1957, plaintiff was seated in the third room of the store watching television. She saw a man spraying the first and second rooms. She could smell the spray and knew that the purpose of the spraying was to exterminate cockroaches. When the man reached the third room he did not request plaintiff to leave or to change her position and she remained seated while the spraying continued for about fifteen minutes. Plaintiff said there was considerable spraying “because I felt like it got damp around where I was sitting, and everything was wet, and I felt like my clothes began to get damp, and my shoes began to get kind of a soggy, and all the room was damp around me where'I was sitting.” "-Plaintiff remained seated for thirty minutes to an hour after the spraying of the third room was completed, when she became nauseated and otherwise ill and was taken to a hospital where she remained for over two months.

Plaintiff testified that she did not know the spray was dangerous to persons. She did not know the substance used was poisonous or harmful to people. She did not have any knowledge of the contents of the label on any container in which the substance was packaged and she did not know what the label said with reference to excessive inhalation of the substance and she was not told that excessive inhalation should be avoided. She relied on defendants’ statement that the spraying would not be dangerous to people in the store.

Inasmuch as we have reached the conclusion that the trial court properly granted a new trial on the ground that instruction 9 was erroneous, and inasmuch as defendants had the verdict and consequently this case must be remanded for a new trial, we should not determine plaintiff’s contention that the evidence did not make a submis-sible issue on plaintiff’s contributory negligence, for the reason that we may not know what the evidence in that respect will be at another trial.

Instruction 9 was: “The Court instructs the jury that if you find and believe from the evidence in this case that prior to November 15, 1957, plaintiff Annie Git-terman made an arrangement with ABC Exterminators for them to exterminate cockroaches in Harry’s Furniture Store, if so, and that on said date of November 15, 1957, defendant Charles Taylor came to said store and began to spray an insecticide pursuant to said arrangement, if so, and that Annie Gitterman was seated in the third room of said store, if so, and before Taylor came to said third room to spray she saw him spraying in the first and second rooms of said store and knew that he was spraying a substance to exterminate cockroaches, and could smell the said substance, all if so, and that she continued to sit in said third room while Taylor sprayed' said substance therein, if so, and if you further find and believe that her continuing to so sit there during said spraying, if so, constitutes a failure to exercise ordinary care for her own safety, if so, and that such failure directly caused or contributed to-cause her illnesses complained of, if so, then you are instructed that plaintiff is guilty of negligence which prevents her from recovering in this case and your verdict shall be in favor of the defendants and against the plaintiff.”

Plaintiff contends the instruction is erroneous because it failed to require a finding by the jury that she knew or in the exercise of ordinary care should have known that to remain seated in the room during and after the spraying would likely result in some physical injury to her. We are of the view that plaintiff’s contention must be sustained.

The instruction required the jury to find the conceded facts that plaintiff was seated in a chair in the third room, saw the man-spraying rooms one and two with a substance which she could smell and which she knew was being applied to exterminate cockroaches, and that she remained so-seated while the room in which she was sitting was sprayed. Based solely upon a finding of those facts the jury was authorized to find further that “her continuing to-so sit there during said spraying” constituted a failure on her part to exercise ordinary care for her own safety. The instruction was fatally defective because it failed to require the jury to find that plaintiff had knowledge, actual or constructive, that to-remain there seated under the hypothesized circumstances would be likely to cause her some physical injury.

An essential element of contributory negligence is that the person charged acted or failed to act with knowledge and appreciation, actual or constructive, of the danger of injury which his conduct involved; and a corollary to that fundamental is that one’s knowledge of the general condition from which the danger arose does not necessarily constitute knowledge and appreciation of the danger. Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844, 851; Ezell v. Kansas City, Mo., 260 S.W.2d 248, 250(4); 65 C.J.S. Negligence § 119, pp. 720, 721. Plaintiff did not concede knowledge or appreciation of the danger of injury; her positive testimony was to the contrary. And under the evidence, considered from a standpoint favorable to defendants and assuming for present purposes that it was sufficient to make a submissible issue of plaintiff’s contributory negligence, it is apparent that we could not correctly hold, as a matter of law, that plaintiff knew or in the exercise of ordinary care must have known that to remain seated during and after the spraying of the third room was likely to result in physical injury to her. It seems apparent that only if it appeared that plaintiff was chargeable, as a matter of law, with knowledge and appreciation of the danger of injury could the instruction properly have omitted the requirement for such a finding; and here, as often would be the case, if plaintiff was chargeable, as a matter of law, with knowledge and appreciation of the danger of her act, defendants were entitled to a directed verdict.

Defendants, in support of their contention that the instruction was correct, say the danger to plaintiff was so “open, apparent and obvious that a submissible case of contributory negligence is made without requiring a specific finding in the instruction that plaintiff knew or could have known of the danger,” and that the jury was entitled to so find, based upon the asserted fact that danger of physical harm under the circumstances was a matter of “common knowledge.” That argument, as we see it, is simply another way of saying that plaintiff was chargeable, as a matter of law, with knowledge and appreciation of the fact that if she remained there seated during (and for an appreciable time thereafter) the spraying of the third room, some physical injury to her was likely to result. As we have held, plaintiff was not so chargeable under her testimony that defendants represented that the spray would not be dangerous to persons in the store and under her testimony to the effect that she in fact did not have knowledge or appreciation of the likelihood of physical injury as a result of her remaining in the room.

The trial court correctly held that it erred in giving instruction 9 and the order granting plaintiff a new trial is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.