author: DALTON, Judge.

text:
    STATE of Missouri, ex inf. Thomas F. EAGLETON, Attorney General, Relator, v. Arthur ELLIOTT, Respondent.
    No. 49832.
    Supreme Court of Missouri, En Banc.
    July 28, 1964.
    Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for relator.
    Dick B. Dale, Jr., Wilson D. Hill, Richmond, Jack C. Jones, Carrollton, for respondent.
   DALTON, Judge.

This cause comes to the writer on reassignment. It is an original proceeding in quo warranto instituted in this court when the Attorney General of Missouri filed his information against respondent, as Sheriff of Ray County, charging respondent with willful and malicious oppression, partiality, misconduct and abuse of authority in said office in specified respects; and alleging that by reason of such facts and conduct the respondent had forfeited his office and was unlawfully usurping and holding the same. The information further prayed the court by its order and judgment to so declare that respondent had forfeited his said office by reason of the facts alleged; that the office of Sheriff of Ray County be declared vacant; and that the court enter such other orders, judgments and decrees as the court deem just and proper. Respondent, by answer, admitted that he was the duly elected, commissioned and acting Sheriff of Ray County, but denied the specific allegations of misconduct as set forth in the information. Thereafter, this court appointed Honorable Latney Barnes of México, Missouri, as Special Commissioner, to hear the testimony that might he offered by the parties and report his findings of fact, conclusions of law and recommendations in the premises to this court.

The Commissioner held a pretrial conference with the attorneys for the parties, set the-cause for hearing, heard the evidence presented, prepared his report, including findings of fact and conclusions of law, and filed the same in this court, accompanied by a complete transcript of the pleadings and evidence presented before him. The Commissioner found that the E. V. Jackson General Merchandise Store at Camden, Missouri, owned by a cousin of respondent, was burglarized on February 22, 1962, and certain property was taken, including a safe and billfold; that both the safe and the billfold were later recovered on April 18, 1962; that, thereafter, on June 7, 1962, one Billy Harwood Eaton was arrested and charged with the burglary and his 1957 De-Soto automobile was parked near the jail; that, thereafter, the mentioned “billfold was deliber'atély placed or ‘planted’ by the Respondent in the Eaton car with the malicious, corrupt and fraudulent intent that it be ‘discovered’ and used as evidence against, and for the purpose of convicting, Billy Harwood Eaton of the Jackson burglary; that such conduct on the part of the Respondent in his official capacity and under color of his office of Sheriff of Ray County, Missouri has rendered him guilty of such willful, fraudulent and oppressive conduct of his office and official duty with respect to the enforcement of the criminal laws of the State of Missouri that he has and should be declared to have forfeited his office as Sheriff, under Section 106.220 R.S. Mo. [V.A.M.S.] and the law of this state * * * >9

The cause has been briefed, argued and submitted in this court. Respondent’s brief states: “The statement of the Attorney General is adopted and accepted by the respondent as true.” In view of this statement in respondent’s brief, we shall set out this approved statement of facts (omitting only page reference to the transcript of the evidence). Additional facts appearing in the record will be stated in the course of the opinion, since we find the approved statement incomplete in material respects.

The statement is as follows: “On February 22, 1962, the E. V. Jackson general store at Camden, Missouri, was burglarized. The respondent and his deputies made an investigation at the scene of the burglary on this same day. Among the items taken in this burglary was a safe containing jewelry, checks and several thousand dollars in cash. Relator’s evidence showed that there was also an old billfold taken in this burglary. This was denied by the respondent. The relator’s evidence showed that the highway patrol was not called to assist respondent in the investigation of this case until April 18, 1962, when the safe taken in the Jackson burglary was found abandoned in a culvert near a gravel road north of Fleming, Missouri. On that daté respondent notified Trooper M. C. Carroll of the highway patrol of the location of the abandoned safe, and the trooper went to the scene. Also present at the scene of the safe recovery were respondent’s chief deputy Dan Keller, Mr. E. V. Jackson, the victim of the burglary, Mr. Harrison Hicks, the brother-in-law of Mr. Jackson, and one Sammy Schrier, who at the time of the trial resided in the Missouri State Penitentiary upon a conviction for burglary and larceny.

“The relator’s evidence showed that in addition to the safe, Trooper Carroll found, in that general area, a few coins, some charred paper and a leather billfold which he identified as relator’s Exhibit No. 1. This billfold was in two pieces and mended by coarse thread or stitching. Trooper Carroll testified that after examining the billfold, he handed it to respondent. Trooper Carroll also testified that he did not see the billfold again until the evening of June 17, 1962, in the office of the Prosecuting Attorney of Ray County.

“On June 7, 1962, one Billy Harwood Eaton was taken into custody by Trooper John Wright of the highway patrol and Chief Deputy Dan Keller on suspicion of having committed the Jackson burglary. After he [Eaton] was taken to the Ray County jail, his 1957 DeSoto automobile was searched by the respondent, Trooper Wright and Dan Keller. In the course of this search, the rear seat of the automobile was taken out by Trooper Wright and nothing of evidentiary value was found beneath the scat. The car was then left parked at that location. The automobile was not locked as the door latch was defective.

“The morning of June 14, 1962, the respondent contacted Trooper Wright and requested that he again search the Eaton car, saying there was additional evidence in the car pertaining to the Jackson burglary. As they approached the automobile, the respondent told Trooper Wright to look under the rear seat. Upon looking under the rear seat, Trooper Wright found relator’s Exhibit No. 1. That same day E. V, Jackson identified this billfold as being in his safe when it was burglarized. This same billfold, recovered from the Eaton car, was identified by Trooper Carroll several days later and at the hearing [of this cause] as the billfold he had found at the scene of the safe recovery April 18, 1962, and turned over to respondent.”

Respondent had been a part-time farmer and a part-time construction worker, prior to being elected Sheriff of Ray County. He was crippled when he was six years old and, thereafter, walked with a limp. He was elected sheriff in November, 1960, after three previous unsuccessful campaigns.

With reference to the burglary of the E. V. Jackson store, respondent testified that on February 22, 1962, Mr. Jackson reported that his money safe had been removed from the store; that it contained old coins that would figure around $5,000 in cash; that there was $4,000 worth of good checks in the safe, his mother’s watch with three large diamonds in the face; that there were some abstracts to his property and other things, but that Mr. Jackson never said a word to him about a wallet being in the safe. It was the largest burglary respondent had “worked” in the county. He said it was “an awful big case” and he worked hard on it. “I worked 8 or 9 days without my shoes off of my feet on this robbery.”

As stated, respondent was a cousin of E. V. Jackson. Jackson’s mother and respondent’s father were “brother and sister” and respondent had lived in the Jackson home when he was “between 8 and 10 years old.” During the time he lived in that home he had seen the billfold in question frequently.

Respondent further testified that Sammy Schrier, a prisoner in respondent’s jail whom respondent had used as a trusty, offered to show respondent where the safe was hidden and proceeded to do so about April 18, 1962. It was hidden in a deep ravine in some brush six miles from Camden. Respondent testified: “Well, it hadn’t been there but just a few days, I judge three or four.” The reason for respondent’s conclusions were not stated. Respondent further testified that Schrier had told him that he had found the safe when he was out “a-mushroom huntin.” There was evidence that Schrier did not commit the Jackson burglary on February 22, 1962, since he was locked in jail at the time, but he told respondent that Billy Harwood Eaton committed the burglary.

Marlin C. Carroll, a Missouri Highway Patrolman assigned to Lafayette and Ray Counties, testified that he received no official report from anyone about this burglary, but he did hear of it several days after February 22, 1962. He never investigated the scene of the burglary. On April 18, 1962, he received a call from respondent to the effect that the safe had been found some two miles from Camden, a mile north of Fleming on a gravel road. When the officer arrived he found the respondent and a deputy, Dan Keller, also E. V. Jackson, Harrison Hicks and Sammy Schrier. Hicks had a pick-up truck to haul the safe back to the Jackson store. According to Carroll the safe was in a brushy ravine 20 to 25 feet deep. In the immediate area along the roadside the witness found fire clay from the safe and charred paper and a leather billfold. Concerning the billfold, he testified that he “picked it up and looked at it and looked through it and then gave it to the Sheriff [respondent].” There was some conversation about it, but the exact words he could not recall. He noticed the billfold was in two pieces and had been mended by some coarse thread, also referred to as “stitching” on the bottom part. He did not mark it. He had never seen a wallet like this one before, nor one in the same condition. It was “alongside this gravel road” about 25 feet north of where the safe had been rolled down the bank, and therefore 45 or 50 feet from where the safe was discovered at the base of the ravine. He didn’t show the billfold to Mr. Jackson or have him determine whether it was his property. When Carroll last saw the billfold the respondent had it in his hand.

Respondent testified that immediately after the safe was discovered he and his deputy and Trooper Carroll and others went to the place where Sammy Schrier, a trusty from the Ray County Jail, had discovered it. Respondent further said that when he arrived and got to looking around “there was an old patent leather pocketbook, an old woman’s pocketbook”; that he personally found and showed the pocketbook to Mr. Jackson; and that Mr. Jackson said it was not his mother’s pocketbook and threw it down. Respondent insisted that Trooper Carroll never picked up the billfold in question here; and that he never handed it to him; that he (respondent) never had that billfold in his possession.

Trooper Carroll testified that he did not see the billfold from the time he handed it to respondent until June 17, 1962, in the prosecuting attorney’s office, when Mr. Cameron, Trooper Wright and Sgt. Clos-son were present. At that time the billfold was taken from an envelope sealed with transparent tape, and with officers’ names written on the envelope. Before Trooper Carroll was permitted to see the billfold on the evening of June 17, 1962, he gave the officers the following description of the billfold he had found and delivered to respondent : “I told them it was, it was an old, badly deteriorated billfold similar to the type carried by many truck drivers. The billfold was very old and had been repaired with some coarse string or thread on the bottom of it.”

As to what had happened subsequent to the imprisonment of Eaton on June 7, 1962, and before the meeting in the prosecuting attorney’s office on June 17, 1962, the record shows the following:

On June 7, 1962, Eaton was arrested and transferred from the Clay County Jail at Liberty to the Ray County Jail at Richmond, Missouri, by respondent’s deputy Dan Keller and Trooper J. W. Wright. On that date, after Eaton’s car was parked and Eaton locked up, Trooper Wright, Dan Keller and several others, including respondent, searched “the entire automobile.” The “outside of it, underneath it, the trunk area, the inside compartment, passenger compartment, glove compartment * * *. The [rear] seat was removed from its position and turned up between the front seat and what would normally be the back seat and allowed to rest on its edge.” Nothing was seen beneath the rear seat. “There might have been some dirt or papers, particles of papers or something, but nothing of any significance to the crime.”

Concerning this search respondent testified that Trooper Wright, Trooper Carroll and Dan Keller came and told him that they were going to search the old DeSoto car that belonged to Bill Eaton, who was in the Ray County Jail; that they had brought the car over and left it in front of the jail on the 7th of June and the first day they searched the car “was on the 8th day of June. * * * I was there; yes, sir.” As to the search, he said: “Well, they took up the floorboard; they took the two cushions out of the car; they run their arms back; they unloaded the tools * * * they laid it [the tools] out on the ground and they raised the hood of this car up.”

Trooper Wright did not see Relator’s Exhibit No. 1, the billfold, when he searched the car and he took the rear seat out, “all of the way.” The search of the car revealed the following: “There was a 22 Rifle found, a small plastic bag — just personal items. Tools in the trunk, electrical tools. That’s about all.” According to Trooper Wright the .22 rifle was released to respondent, Sheriff of Ray County, for safekeeping. The property in the Eaton car was “left intact,” except that the rifle was removed for safekeeping. The car lock was defective and it could not be locked up, but the car was not removed. The same officer, Trooper Wright, searched the same car at the same location again on June 14, 1962. The reason for the second search was stated by Trooper Wright as follows: “I had been contacted by Sheriff Elliott [at the courthouse around 10:30 a. m.] and requested that I go back to the car. He said there was some additional evidence in the car. * * * He stated he wished I would search the car again, there was some additional evidence in the car,” which he said pertained to the Jackson burglary. The officer further testified: “He and I proceeded to the car, where it was parked on South College, and as we approached the car, he said: ‘John, look under the rear seat.’ And that’s what I did, and discovered the leather folder there. * * * It was under the rear seat.” I found it by “just pulling the seat up. * * * It was laying directly beneath the rear portion of the seat. * * * It was the brown leather folder,” Relator’s Exhibit 1. He first saw it in Eaton’s car on June 14, 1962. He replaced it under the back seat, put the seat back over it and nobody at that time viewed the wallet or billfold except him and respondent. At the request of respondent E. V. Jackson came up there a few minutes after the wallet was discovered. Trooper Wright again removed the wallet and asked Jackson about it and Mr. Jackson stated that it was the folder that was in his safe when it was burglarized. After the folder was put back in the car again, and after the respondent and Jackson had stated that it was the folder that was taken in the burglary, a search warrant was applied for and Sgt. Closson of the highway patrol was informed. Trooper Wright requested the search warrant, but did not file an application for it. After the search warrant was obtained, the car was again searched in the afternoon between 2 and 3 o’clock. Trooper Wright, Sgt. Closson, Sheriff Elliott and George Spurveck, a deputy sheriff who had signed the warrant were present, together with Eaton, and all of the officers participated in the search. On this search Trooper Wright found the wallet in exactly the same position where he had left it on the prior occasions when he had found it. Relator’s Exhibit No. 1, also referred to as a leather folder, a wallet, or billfold was then taken into custody and placed in a manila envelope. The envelope was sealed in the presence of the officers and signatures placed thereon, although some officers merely initialed it. E. V. Jackson again stated that the wallet was in his safe at the time it was burglarized. When he identified it he referred to some hand stitching that was on the bottom of it. The officers did not see the wallet again until the envelope was opened in the prosecuting attorneys office on June 17, 1962 when Sgt. Closson, Trooper Carroll, Trooper Wright and Prosecuting Attorney Cameron were present. The seal was then broken in their presence and the wallet was taken out of the envelope.

On cross-examination, Trooper Wright said that George Spurveck and the respondent were present when the car was first searched on June 7, 1962, when it was first brought back to the Richmond jail. He further testified that it would almost have been an impossibility to have overlooked the presence of the leather wallet or billfold in the car when the first search was conducted. When he and the sheriff searched the car the second time they had no search warrant, but he did have a warrant for the third search. The witness testified that the old leather wallet removed from the envelope was the same wallet that he saw in the Eaton car on his second and third searches. His identification was based on the physical characteristics of the wallet, as well as seeing it placed in the manila envelope and sealed, marked and, thereafter, the seal broken and the exhibit removed in ■his presence. He again testified that, at the time of his first search of the car on June 7, 1962, there was no such wallet at the place he found it on the second and third searches of the car.

It is not necessary to review the testimony of other officers with reference to most of the foregoing facts; however, we shall now review the respondent’s personal testimony in some detail.

Respondent testified that, at the time of the first search of the Eaton automobile on June 7, 1962, he saw a gun (“brand new rifle”) on the floor board of this car; and that “this gun disappeared out of the car about the second day that it was there. That would make it on the 8th of June.” He further said: “The search — the first day they searched the car was on the 8th day of June. * * * I was there; yes, sir.” He also testified that he had personally checked the car on the 8th or 9th, he thought it was the 9th, and he thought his deputy had taken the gun out of the “back end of the car.” At the time he found the gun missing he looked under the back seat of this automobile and saw “that old rag right there” lying under the back seat; but the gun was gone. He also testified, “I never touched that wallet — I saw it up under the back seat,” but that he (respondent) was present later when the wallet was taken out and when some nine people were present; that Sgt. Closson “throwed this wallet out on the ground * * * [and] laid all of the tools on the sidewalk”; and that “Sgt. Closson held up a blue money bag that had 'Commercial Bank, Lexington, Missouri’ on it” and Sgt. Closson asked Mr. Jackson if that was his money bag and Mr. Jackson said “No”; and that when the wallet was removed from the car Jackson further said: “That looks like Pap’s old billfold”; and that Mr. Jackson also said that he could tell “Pap’s” old billfold by some sewing on the bottom of it, “it had some whipped cord on it.” Jackson later said: “It looks like my sewing. I done the sewing.” Respondent further said that he had never seen the pocketbook until the night before when he was looking for that gun and figured that his deputy had “hooked” that boy’s gun. When respondent found the rifle missing, he promptly repossessed it from a deputy sheriff and returned it to the Eaton car.

Respondent also testified that he searched the Eaton car three days after Eaton was brought to the Ray County Jail and that he then saw the billfold lying back of the seat and that he recognized the billfold since “it looked like the old billfold.” Later he said he did not recognize this billfold as the billfold he had seen at the Jack son place of business.

Respondent further testified that he didn’t know whether the billfold was in the car at the time of the first search or not; and that the reason he searched the car after the first search was because he was afraid someone had removed the .22 rifle and he found it gone, as stated, and did find the billfold. Respondent said he was alone at the time he made this search, but that, after seeing the billfold he called Sgt. Closson and told him he wasn’t satisfied and wanted the car searched again. Respondent further said: “The first day the car was searched there was a rifle, not back in under the back seat but laying on the floor where the seat sets. That rifle was laying there on the tin where the seats rest on the car.” He also said: “We never bothered that rifle then. * * * That rifle was left there; yes, sir.” He also said that he did not see the highway patrol search the car the three times that they searched it. He did say that he saw the patrol search the car between three days after the first search and the search on the 14th. One of respondent’s deputies was in the Eaton car at that time and two or three patrolmen were around it.

He admitted the correctness of his prior deposition testimony taken on March 22, 1962, as follows: “ ‘Was there a search made in Richmond ?’ And your answer: ‘Yes, I guess the car set there, I believe about the third day. I went home one day for dinner and there was John Wright and Trooper Carroll and Sergeant Closson going through that car and they was searching it as I was going to dinner.’ Q. ‘And when was this ?’ A. ‘That was about the third day after the car arrived at the parking meter.’ Q. ‘And what part of the car were they searching?’ A. ‘Front end and back end both. Two men in the car and one standing out. Closson was in the front, and I think Carroll was in the back.’ Q. ‘Would you say whether the man in the back, what he was doing?’ A. ‘He was going under the back seat.’ Q. ‘What part?’ A. ‘The cushion.’ Q. ‘And what else did you see up there?’ A. T went on and ate my dinner. I never said a word and it wasn’t my job. They was working it, and I went on about my business.’ ” “Do you recall those questions and answers, Sheriff? A. Yes, sir. My answer is yes. Q. Then your answer is, Sheriff, that you did see the Highway Patrol search underneath the back seat before June 14th? A. He was in there, Mr. Kingsland, and I couldn’t tell where his hands were. I had a patch on this eye and the other one, I had just took the patch off and I couldn’t tell you.”

At the trial respondent denied that he had personally or by someone else caused the wallet to be placed in the Eaton automobile. Respondent also said that, when the “highway patrol” searched the car on the third day, “Well, they found some old checks. * * * There was some little pieces of checks there * * * from the burglary,” and he gave the piece of the old check that was found in the Eaton car to Mr. Jackson, and that he talked to the Highway Patrolmen Closson, Carroll and Wright, and to Mr. Jackson about it. There was other testimony that no such checks or pieces of checks were found by the patrol in the car or at any other place.

As to his reasons for wanting the car searched a further time, respondent said: “What I wanted it searched for was several reasons. I had done taken pictures of the back end of that car,” where two dents on the lid of the trunk matched the safe and there were marks of the safe having entered the car. The respondent testified that dents on the lid of the trunk of Eaton’s car matched the measurements of the safe, and there were prints made by the safe on the floor of the trunk. Sgt. Closson, however, testified that he measured the safe and compared these measurements with the dents in the trunk of the car and stated that the dents could not have possibly been made by the safe. Sgt. Closson also testified he did not see any wheel marks on the floor of the trunk of Eaton’s car.

The record also shows, as stated, that the Eaton car had been parked, unlocked, on a public street after June 7th, 1962; that it had been diligently searched the day it arrived in Richmond, Missouri, and nothing was found in the way of a billfold; that it had been removed to a garage for pictures to be taken of dents in the car; and that the car had been searched by various officers at various times, before a search warrant was issued for the search on June 14, 1962.

Respondent insisted that he reported the burglary to Sgt. Closson of the State Highway Patrol on February 23, 1962, the day after the Jackson store was burglarized. Sgt. Closson, however, denied that the burglary was so reported or that he had, worked with respondent at any time on the case prior to April 19, 1962. The sergeant also denied that there were any dents in the car made by a safe; and denied that the finding of any checks or pieces of checks were reported to him by respondent. Sgt. Closson also testified that he did not search the Eaton car three days after Eaton’s arrest, but that he searched it only on June 14, 1962. He further testified that on April 19, 1962 in the presence of respondent, Mr. E. V. Jackson, owner of the burglarized store, gave Sgt. Closson a list of the things taken in the burglary, including “this old-type billfold that he described at the scene as being hand stitched”; however, at that time nothing was said to him by respondent or others about the recovery of this billfold.

Respondent's brief states: “It is admitted by all, that the Troopers and Sheriff were on the friendliest and best terms.” It is argued further that it was only natural in view of the number of searches of the Eaton car that respondent would be confused as to the times, dates and officers making the searches. It is pointed out that the sheriff was 69 years of age at the time of the hearing; that he had suffered a disability since childhood and that during the time of the Eaton arrest and the searches of the Eaton car respondent was undergoing and recovering from surgery on his eyes. It is also argued that in view of the testimony offered as to the good reputation of respondent in Ray County for honesty and integrity, a reputation that relator did not seek to rebut, it is incredible that respondent “with a reputation for such integrity and status in his community and among his fellow officers would attempt such a 'crude' method to fabricate evidence as charged.” It is also pointed out that the burglary was committed on February 22, 1962; that the safe was not located until April 18, 1962; that the Eaton car was not searched and the wallet found under a search authorized by a search warrant until June 14, 1962; that there is no evidence in the record that the wallet was ever accepted as evidence by the prosecuting attorney “to be used in the case against Eaton”; and that the record fails to show that the troopers questioned respondent’s statements about the wallet, but instead they accepted his testimony as new or additional evidence against Eaton.

Respondent argues that it was necessary for relator to show that the wallet was placed in the Eaton car; and that it was placed there by respondent for the purpose of fabricating evidence against Eaton on the charge of burglary.

Respondent also insists that the relator presented no direct evidence that respondent “planted” the wallet in the Eaton car and hence must rely on circumstantial evidence “to establish the basic premise that the wallet was planted” by respondent. Respondent says that “mere opportunity and motive are only circumstantial evidence”; and that ‘“guesswork, conjecture and speculation,’ ” must be excluded in this circumstantial evidence case.

Respondent also insists that because “Trooper Carroll testified that Sheriff Elliott was the only person he saw with the wallet 3 miles northwest of Camden, Missouri, on April 18, 1962,” the court is now asked to believe “that respondent placed or caused to be placed the wallet some three months later in the Eaton car.” Respondent insists that the essential element of relator’s case is, did respondent place the wallet in Eaton’s car, and that relator has sought to make proof of that alleged fact by circumstantial evidence, but failed in the effort, and the proof offered amounts only to speculation, conjecture and guesswork.

Respondent further insists that the removal of a duly elected official from office for any cause is a harsh and drastic remedy; that the statutory provisions for forfeiture of an office should be strictly construed; that this court may properly exercise a sound judicial discretion in granting or refusing a judgment of ouster in this quo war-ranto proceeding; and that an ouster based upon circumstantial evidence should not be granted unless some good purpose can be served and the removal of the officer is in the public interest.

Respondent says that “Relator is asking the Court to remove from office an elected official, one who ran four times for Sheriff before successfully obtaining his commission”; and that the removal is sought because he is suspected of being guilty of the charge against him, and that there is no direct evidence to support the charge.

In addition to the findings of the Special Commissioner hereinbefore set out, the Commissioner found: “The evidence to he clear, cogent and convincing that the billfold taken in the burglary of the Jackson store was found on the occasion of the recovery of the safe on April 18, 1962 and then and there delivered into the exclusive custody and possession of Respondent, Sheriff Arthur Elliott; that this billfold was not in the Eaton car at the time Eaton was apprehended and arrested for the crime on June 7, 1962 and that at the special instance and request of the Respondent another search of the Eaton car was made in the presence of both the Respondent and the accused suspect, Eaton, on June 14, 1962 and the same ancient and dilapidated wallet or billfold ‘discovered’ under the rear seat of the Eaton car.”

The Special Commissioner further found that after the initial search of the Eaton car was concluded, the respondent had the car driven to the Ford garage so that the rear-end could be raised by hoist or jack and pictures taken of the inside of the rear or “turtleback” for the purpose of showing marks which respondent contended were made by the Jackson safe; however, from other testimony the Commissioner found “that it would have been a physical impossibility to have put the safe in the trunk of the [Eaton] car.”

From all of the evidence the Commissioner found that “the incriminating billfold was placed in the [Eaton] car between * * * June 7 and June 14”; that respondent had taken possession of the billfold on April 18, 1962; that he had admitted that he had individually (alone) made a search of the Eaton car three days after Eaton’s arrest and “discovered” the billfold under the seat of the Eaton car; and that all of the evidence in the record leads to the “inescapable conclusion * * * that the billfold was deliberately placed or ‘planted’ by the respondent with the malicious, corrupt or fraudulent intent that it be ‘discovered’ and used as evidence against * * * Eaton” to convict him of the Jackson burglary.

The Commissioner further found that the acts of respondent were designed to obstruct the administration of public justice and that, “[E]xcept for the knowledge of Trooper Carroll, the Sheriff may well have put in motion the accusative force, the discovery of highly incriminating evidence in the possession of Eaton, from which there could be no turning back.” The Commissioner further found that respondent was guilty of willful and malicious oppression and misconduct in his official capacity as Sheriff of Ray County and that he had thereby forfeited said office.

The findings of fact, conclusions of law and recommendations of the Special Commissioner are not binding upon this court, only advisory. In re Wines, Mo.Sup., 370 S.W.2d 328, 333[3]; State ex inf. Miller v. St. Louis Union Trust Co., 335 Mo. 845, 74 S.W.2d 348, 353[1]. “The pleadings in an information in the nature of quo warranto are governed by the rules in civil cases rather than those which apply to criminal proceedings in matter of form as well as in matters of substance.” State ex rel. Union Electric Light & Power Co. v. Grimm, 220 Mo. 483, 119 S.W. 626, 627; State ex inf. McKittrick v. Wiley, 349 Mo. 239, 160 S.W.2d 677, 683[1-4]; State ex inf. Connett v. Madget, et al., Mo.Sup., 297 S.W.2d 416, 427; State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 947 [12], 119 A.L.R. 710. The issues to be tried are the issues made by the pleadings.

Section 558.110 RSMo 1959, V.A.M.S. provides that: “Every person exercising or holding any office of public trust who shall be guilty of willful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity or under color of his office, shall, on conviction, be deemed guilty of a misdemeanor,” but the present proceeding is not a criminal proceeding. Instead, it is a civil proceeding which has been instituted solely for the purpose of determining whether the respondent has been guilty of the acts charged against him in the information, and, if guilty, whether he has forfeited his office and, if so, that this court remove him from the office.

In the trial of this case the relator assumed the burden of proof and proceeded to offer the testimony upon which relator now relies to have this court oust respondent from his official position as Sheriff of Ray County. State on inf. of Connett v. Madget, supra, 297 S.W.2d 416, 427[1] and State ex inf. Taylor v. Cumpton, 362 Mo. 199, 240 S.W.2d 877, 883[6].

Helpful as the Commissioner’s report has been in our consideration of this case, we have, nevertheless, carefully read and studied the entire record, examined the controlling law governing the case and have reached our own conclusions as to the merits of the charge made against respondent and have determined the action. It must he kept in mind that all of the witnesses personally appeared before the Commissioner and he saw and heard them testify, observed their appearance on the witness stand and their actions and reactions under direct and cross-examination. Due deference must, of course, ,be given to his findings insofar as the determination of the credibility, weight and value of the oral testimony presented before him is concerned. . Nevertheless, we must and have reached our own determination as to the credibility, weight and value of the oral testimony in the record since we can recognize direct conflicts, contradictions, evasions and other matters which appear upon the face of the cold record. In re Wines, supra, 370 S.W.2d 328, 333[1]. We have, however, reached the same conclusions as our Commissioner with reference to respondent’s guilt of the charges filed against him.

Some of our reasons for our conclusions are as follows: The record clearly shows that respondent was a man of limited education and, as stated, there were many conflicts and contradictions in his testimony. Some of his testimony was directly contradicted by other testimony which our Commissioner believed and which we believe. It must be remembered that, according to respondent this was the largest burglary that had taken place in his county and it was his kinsman whose store was broken into. Respondent was extremely anxious to solve the burglary himself and, therefore, did not report that matter to the patrol or ask their assistance, although he said that he did. Later he had to admit that the patrol was not called in until the safe was found, when he said that he called them in and “they taken fingerprints from the safe.” The safe was not found until April 18, 1962, as stated, although the burglary was committed on February 22. His interest in solving the burglary in part stemmed from his relationship to the owner of the store. He stated that until the night before the search of Eaton’s car on June 8 or 9, 1962 he had never seen the billfold in question. He said that he alone had searched the Eaton car June 8th or 9th and that he found the billfold, although he and the others had not found it on the first search. Later he said: “Yeah, I had seen it years ago. I had saw the billfold in my Uncle’s store. They had kept me for 8 or 10 years. I had saw the old billfold a lot of times.” He later stated that he lived in the Jackson home when “a small boy * * * when I was between 8 and 10 years old.”

The conflicts and contradictions in respondent’s testimony are so numerous and with reference to so many matters that they may not be reviewed in this opinion. It is enough to say that his testimony was unsatisfactory and unbelievable in many respects. It appears, as stated, that Eaton was arrested on an alleged “tip” from Sammy Schrier, a prisoner in respondent’s jail, held on a burglary charge. Respondent said he (respondent) reported the matter of the “tip” to the State Highway Patrol 3 to 4 weeks, 2 to 3 weeks, and 5 or 6 days before Eaton’s arrest. The time changed as the cross-examination proceeded. Respondent was also most difficult and evasive on cross-examination at the hearing before the Commissioner. Some time the same question would have to be repeatedly asked and evasive answers made until the Commissioner required a direct answer to a direct question. A reading of the cold record fully supports the Commissioner’s disbelief of much of respondent’s testimony.

The interest of respondent in the prosecution of Eaton appears from his efforts to use the dents in Eaton’s car, as evidence of his having hauled the safe, and the alleged finding of checks and parts of checks in the car which he said he gave to Mr. Jackson. His theory of the dents in the car as evidence of its use in hauling the safe and of the finding of checks or parts of checks in Eaton’s car were denied by other witnesses, which we consider more worthy of belief. The arrest of Eaton on suspicion is further evidence of respondent’s anxiety to make a case. Further, the testimony that E. V. Jackson had posted a three-hundred dollar cash bond for the conviction of the man who got his safe and money may have influenced respondent’s conduct.

Also, the repeated efforts of respondent in this case to gain sympathy by reason of his physical infirmities, the operation on his eyes, his prior injuries and his long effort to obtain his present position all tend to some extent to discredit his testimony in face of clear, direct and believable testimony that the billfold in question was found by Trooper Carroll at the time the safe was recovered; that the billfold was delivered to respondent; that the billfold was not in the Eaton car when the Eaton car was first searched by respondent and other officers; and that it was not in the car until respondent subsequently claimed to have found it and arranged for the subsequent searches.

The evidence fully satisfies us that the billfold in question was not in Eaton’s car until placed there by respondent or at his direction.

Respondent received the billfold at the place where the safe was recovered and he was present when the Eaton car was first thoroughly searched and the billfold was not therein. Of necessity respondent knew the billfold was not in the car at that time. Thereafter respondent either placed the billfold in Eaton’s car or had it placed therein, well knowing that it had been taken in the Jackson burglary and thereafter had been recovered and delivered to him. The arrangements thereafter by respondent for a legal search of the car to obtain the billfold for evidence for use in the prosecution of Eaton causes us to reach the conclusion that respondent has been guilty of willful and malicious oppression, misconduct and abuse of authority in his official capacity and under color of his office as sheriff of said county and that he has forfeited the said office of sheriff; that the said office is now vacant and respondent is a usurper thereof. He must be and hereby is ousted therefrom.

In view of the amount of the costs in the proceeding which are hereby assessed and taxed against respondent, a penalty of only Five-Hundred ($500) Dollars is assessed and taxed against him by reason of the facts and circumstances shown herein, and relator shall recover the same from respondent, together with the costs of this proceeding.

It is so ordered.

All concur except HOLMAN, J., absent.


source: Caselaw Access Project

author: L. F. COTTEY, Special Judge.

license: Public Domain

text:
    Harry R. SPARLING, (Plaintiff) Respondent, v. Walter A. HOARD, (Defendant) Appellant.
    No. 31443.
    St. Louis Court of Appeals. Missouri.

      July 21, 1964.
    Gray & Jeans, Charles E. Gray, St. Louis, for appellant.
    George W. Cady, St. Louis, for respondent.
   L. F. COTTEY, Special Judge.

Plaintiff recovered judgment in the court below for $6,250 for damages allegedly sustained by him in an automobile collision. Defendant appeals. No point is made as to the sufficiency of the evidence to sustain the verdict insofar as the question of liability is concerned, for which reason it is unnecessary to notice the details of the accident. Defendant does insist, however, that the verdict is excessive and that its excessiveness results from the commission of three errors in the course of the trial: first, in permitting plaintiff to inject the question of insurance in the case; second, in authorizing the jury to consider plaintiff’s medical expenses as items of damage, without direct proof of their reasonableness; and third, in submitting plaintiff’s alleged loss of earnings as an element of damages when there was no substantial evidence thereof. Of these, in their order:

First: In the course of plaintiff’s cross-examination Mr. Gray, defendant’s attorney, inquired: “When was the last time you were examined by a doctor ?” Plaintiff replied, “I believe the last time was by the doctor the insurance company has.” The answer triggered a galvanic response from plaintiff’s counsel which he says was “a reflex action.” He exclaimed, “Mr. Gray sent you to?” “Yes,” replied his client, “Mr. Gray sent me to.” And in a final involuntary gasp counsel added, “Mr. Gray sent you to.”

It is urged on this appeal that counsel’s interjections were not as irresistibly impulsive as he would have us believe; that in fact they were deliberately made for the purpose of pointing up the interest of an insurance company in the defense of the case; hence, that defendant’s motion for a mistrial should have been sustained. Unfortunately, that point is not before us for review. The record discloses that at no time did defendant object to counsel’s remarks. The motion for mistrial — the only remedial action requested — was in this language: “Your Honor, I move that a mistrial be declared; that was not responsive to the question.” Nor does defendant’s motion for new trial make any reference to counsel’s comments. It specifies only that plaintiff testified that he was examined by an insurance company doctor and “(t)his answer was neither responsive nor called for by the question asked plaintiff.” If defendant thought that the remarks of counsel were prejudicial, or that the effect of the witness’s answer, as aggravated by counsel’s interjections, was more serious than mere unresponsiveness would imply, it was his duty to be explicit in stating his grounds to the court. “If counsel are guilty of matters of misconduct during a trial, such matters must be timely called to the court’s attention by opposing counsel and the trial court must be given opportunity to grant relief by requests for instant ruling and action by the court.” Blanford v. St. Louis Public Service Co., Mo., 266 S.W.2d 718, 721. We cannot convict the trial court of error on a point never called to its attention. Of course, the answer itself was improper, but the mere fact that it was unresponsive — the only objection made to it — does not warrant a reversal. No doubt, it would have been stricken and the jury instructed to disregard it had that relief been requested; but even that was not done. There are cases, to be sure, in which the effect of the improper answer has been so patently prejudicial that no remedial action could suffice to remove it; hut they will be found to be cases in which the fact of defendant’s insurance coverage was directly and specifically developed, as in Boyne v. Schulte, Mo.App., 222 S.W.2d S03, or where there was a “persistent and insistent determination” to put that fact before the jury, as in Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673, or where, at all events, the incident to which specific objection was made was of such a character as to exclude any inference of inadvertence which might otherwise extenuate it. We think the answer of the witness in this case, standing alone as it must for the purposes of this review, was not of that character, and on the record made there was no such abuse of the court’s discretion as to warrant a reversal. Moss v. Nehman, Mo.App., 247 S.W.2d 305.

Second: Plaintiff was hospitalized for five days following the accident, suffering from concussion, temporary amnesia, a contusion of the cervical area, a contusion of the low back, and numerous cuts and bruises, for all of which he received treatment while there. X-rays revealed no fractures or dislocations. The total hospital bill was $135 to $138, “something like that.” Upon the recommendation of his attending physician plaintiff bought and wore a Thomas collar for relief of the muscle spasm in his neck. It cost “about $10.00.” Following his discharge from the hospital he revisited his attending physician five or six times over a period of ten months for additional attention to his neck injury, and, during the same time, or perhaps during an overlapping period, he took a series of treatments for his neck injury from a Dr. Schatzman. The attending physician’s bill for those treatments was “approximately $100.00” and he testified that the charge was reasonable; Dr. Schatzman’s bill “might have been close to a hundred,” but there was no testimony as to the reasonableness of the charge. In addition, plaintiff spent “possibly” as much as $25.00 to $50.00 for drugs for the relief of pain. There was no direct evidence as to the reasonableness of any of those charges, except the bill of the attending physician for treatments after plaintiff’s discharge from the hospital. It seems to be at least tacitly conceded, however, that the expenditures were necessary. On the face of it the charges appear to have been modest; certainly there is no indication that either plaintiff or defendant has objected to them as being excessive. The trial court instructed the jury to consider plaintiff’s reasonable and necessary medical expenses on the issue of damages. Defendant contends that there was a failure of proof as to the reasonableness of the charges; hence, that the submission was erroneous.

We are familiar with the rule that where medical expenses are to be submitted to the jury, “they must be supported by substantial evidence as to * * * the reasonableness of the charge,” and “(t)he mere mailing of a statement * * * does not supply the substantial evidence required.” Spica v. McDonald, Mo., 334 S.W.2d 365, 371. Admittedly there was no direct evidence on the subject in this case. We would have some doubt as to whether the circumstantial evidence was sufficient to warrant the submission were it not for the precedent established by the Supreme Court in Cordray v. City of Brookfield, Mo., 88 S.W.2d 161, which we are bound to follow. In that case it was held that proof that plaintiff “had purchased medicine used in the treatment and alleviation of (his) resulting injuries aggregating between $218 and $243; that he had paid out cash therefor of ‘about $175 to $200,’ and ‘owed a balance of $43’ at a certain drug store,” without more, authorized submission of that item to the jury; and, further, that evidence establishing merely that “plaintiff was yet indebted * * * in the sum of $1,195” for doctor bills authorized a recovery for that item, 88 S.W.2d 1. c. 164, “when it is considered that the evidence was that his (the doctor’s) services had continued at regular intervals over a period of four or five years; that he was a reputable physician; that there was no evidence tending to show collusion or bad faith; that defendant did not question the reasonableness of the account; and that the plaintiff acknowledged the indebtedness * * *. Nothing whatsoever to the contrary appearing, we must presume and ascribe honest motives, good faith, and right conduct.” All those considerations are established by, or are legitimately in-ferable from, the evidence in this case. Moreover, the liberal view reflected in the Cordray case has been adopted in three quite recent cases decided by the Kansas City Court of Appeals. Hay v. Ham, Mo.App., 364 S.W.2d 118, 126; Wise v. Towse, Mo.App., 366 S.W.2d 506, 508; and Mullendore v. Gentry, Mo.App., 377 S.W.2d 494, 1. c. 497. If there is a conflict between the Spica case and the Cordray case on this subject, then until it is resolved by the court that created it, we can hardly convict the trial court of error for following, as did the Kansas City Court of Appeals, the example of the latter.

Third: Plaintiff was a commercial artist in business for himself under the name of “Sparling Studios”. We gather, almost entirely by inference, that it was a one-man operation in which his probably insignificant capital investment “was merely incidental to the performance of his personal services.” In such case proof of loss of profits is tantamount to proof of loss of earnings. Fishang v. Eyermann Contracting Co., 333 Mo. 874, 63 S.W.2d 30, 36. As the result of his accident plaintiff was “away from his business completely” for “probably around four weeks,” and was “on a part time basis” thereafter for “perhaps three months, four months.” He declined an invitation extended both by the court and defendant’s attorney to show his average earnings for any period whatever, either before or after the date of his accident. Instead, he contented himself with testifying that in each of the two years immediately preceding his accident he had done the art work on a brochure printed by Western Lithograph Company, and that “this job ran approximately eighteen hundred or two thousand, twenty-one hundred dollars;” but he gave no estimate nor any evidence from which an estimate might be made as to the net profit, if any, realized from that work. He then explained that on the day before the accident he had received a telephone call from a representative of Western regarding “a similar job,” but when he was hospitalized negotiations were broken off and no contract for the work was ever reached. There was no further testimony with regard to this item. Asked if in the previous year he had done “any work” for Salem Printing Company or Webster Publishing Company, he replied, simply, “Yes, sir,” with no hint of the amount involved or the profit that may have accrued from it. And the speculation invited by that approach to the problem was hardly relieved by his further statement that since his accident he had done “some” work for both companies, “but it fell off.” That was the evidence. Plaintiff’s measure of damages instruction authorized the jury to take into consideration “(s)uch loss of earnings, if any, as you find from the evidence that Mr. Sparling has suffered as a direct result” of the accident. Defendant says there was no evidence to support that submission. We agree. “In order to recover for a loss of past earnings as special damages, the evidence as to the value thereof must be reasonably certain, so as to eliminate mere speculation. Or, as sometimes expressed, the evidence must afford a basis for a reasonable estimate of the amount of the loss.” Seymour v. House, Mo., 305 S.W.2d 1, 3-4; Murphy v. St. Louis Public Service Co., 362 Mo. 772, 244 S.W.2d 31, 35-6. No such basis is afforded in this case. The elasticity of our indulgence, already hyper-extended in this case, reaches its limit short of approving a submission which necessarily requires the jury to exhaust the ultimate resources of its imagination in order to supply the information essential to a proper verdict.

Since no complaint is made as to the sufficiency of the evidence on the issue of defendant’s liability, the judgment of the court should be reversed and the cause remanded for a new trial on the issue of damages only.

It is so ordered.

RUDDY, P. J., and ANDERSON, J., concur.

WOLFE, J., not participating.


author: ANDERSON, Judge.

text:
    Jerry PIERCE, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, (Defendant) Appellant.
    No. 31498.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.

      Donald W. Bird, St. Louis, for appellant.
    Padberg & Raack, William J. Raack, St. Louis, for respondent.
   ANDERSON, Judge.

This is an action for damages for personal injuries sustained by plaintiff when he fell while alighting from a bus of the defendant St. Louis Public Service Company. The petition alleged that as he was preparing to leave said bus, he stepped on a foreign substance on the exit step of said bus, and as a result thereof he was caused to fall to the pavement and sustain serious and permanent injuries. The jury returned a verdict in plaintiff’s favor in the sum of $3,500. Defendant has appealed from the judgment on this verdict.

The accident occurred on June 26, 1961, between 1:00 and 1:30 P.M., at the southeast corner of Page and Pendleton Avenues, in the City of St. Louis. Page Avenue runs east and west, and Pendleton runs north and south. The weather at the time was fair.

Plaintiff boarded the bus, which was eastbound on Page Avenue, at Academy Avenue, approximately eight blocks west of Pendleton. His intention was to get off of the bus at Pendleton. No passengers were standing in the bus, and the seats were approximately half full. The last stop where passengers get off the bus prior to reaching Pendleton was at Taylor Avenue, two blocks west of Pendleton. Plaintiff testified that the two blocks between Taylor and Pendleton were the same length as the average city block. It took from three to five minutes for the bus to travel from Taylor to Pendleton. As the bus proceeded from Taylor to Pendleton, plaintiff did not see anyone approaching the rear doors, nor did he see anyone throw or drop anything near the rear doors.

As the bus approached Pendleton Avenue, plaintiff arose from his seat and walked toward the rear doors, arriving there just as the bus stopped at the regular stopping place at the southeast corner of the intersection of Page and Pendleton. No other passengers got off at the stop. There are two steps at the rear doors of the bus, between the aisle level and the sidewalk. After arriving at the doors, plaintiff stood facing the doors and waited for the operator to open them. He stood opposite the center of the doors and about two feet from the edge of the top step. From that point both steps were visible to plaintiff. He did not at that time see anything on the steps. The bus driver then opened the doors and plaintiff stepped down with his right foot, then with his left foot, placing his left foot on the bottom step. Plaintiff testified that when he placed his left foot on the bottom step his foot slipped from under him, and he was caused to fall onto the sidewalk. He stated that when he started down the steps he could see them. He was not examining them but was looking out at the sidewalk where he was going. As he descended the steps he did not see anything on them. He further testified that he was caused to fall by something slippery on the bottom step. His full weight was on his left foot when he placed it on the bottom step, and he slipped backward, causing him to fall forward. The bus was close to the curb at the time. Plaintiff fell onto the sidewalk, with his feet toward the bus and his head in the opposite direction. Plaintiff was unable to arise. He was later taken to the hospital by the police.

While lying on the sidewalk, plaintiff noticed a foreign substance on the bottom step. Plaintiff did not know what this foreign substance was or its color, but stated it was located about the center of the step. He had no knowledge how this substance got onto the step, nor where it came from, or how long it had been there. He never saw it prior to his fall. Three of the bus passengers, Adolph Eli Alford, Beatrice Stin-nett, and Johnnie May Bernard, were called as witnesses by plaintiff. They all testified that they were seated in various places in the bus when they heard an outcry, then saw plaintiff had fallen. Alford testified that he looked at the bottom step and saw a spot there slightly left of the center of the step as you look out the bus. It was, according to his testimony, about three inches in diameter, dirtish green in color, and seemed to be some sort of vegetation. He further stated it was rather viscous in nature and “sticky.” It seemed to be smeared as if it had been stepped on. It also appeared to be moist. He did not recall that any part of it was dry.

Beatrice Stinnett testified that she saw something on the bottom step which looked like a banana peel, on the left side of the center of the step as you stood looking down the step. It was a dirty brown in color like it was overripe, and was between two and three inches in length. The edges were curled up. She thought it was moist. She did not notice if there were any dry spots on it.

Johnnie May Bernard testified that she saw something on the step toward the left side as you descend. It seemed to her as though it was a piece of banana. A part of it was smeared or mashed and was dark brown in color. She stated it was moist.

Elizabeth Green, while on the west side of Pendleton, saw plaintiff lying on the sidewalk and crossed the street to where he was. She testified that she saw a banana peeling on the bottom step of the bus, and that it was dark brown in color. She stated that it looked like it had been stepped on, as if somebody had slipped on it.

The investigating police officer, George Fink, testified that he arrived at the scene, observed plaintiff lying on the sidewalk outside the rear doors of the bus, and further observed a two or three inch piece of peeled banana on the center of the bottom step at the rear doors of the bus. He stated that the banana was light yellow in color and had been mashed down.

Mr. John W. Bland, a professional engineer, testified on behalf of plaintiff that he had, prior to the trial and at the request of plaintiff, inspected the bus in question. He testified that the steps at the rear doors were 36 inches in width and 9 inches in depth from the riser to the edge of the steps. He further testified that the bus was equipped with three mirrors, one 4 inches by 12 inches, located in front of and directly above the driver’s head, another round mirror 5% inches in diameter over the right front door, and a third one 11J4 inches in diameter mounted just to the rear of the rear steps. He stated that when he sat in the driver’s seat he was, through the use of the mirrors, afforded an “excellent view” of the horizontal surface of the rear steps, except for the rear four inches thereof. He was able to see objects when placed near the center of the bottom step and recognize the color, size, and shape of said objects. He was thus able to see and identify a white pencil about 6 inches in length. He observed a white napkin which was approximately 8x8 inches in size, a yellow cocktail napkin approximately 6x6 inches in ■ size, a flat green object which he later found to be a rubber coaster, a yellowish brown banana skin approximately 3x4 inches in size, a piece of peeled banana one inch in diameter and two inches in length, and a fifty cent piece. The coin was moved to various positions on the step, and was visible through the mirrors at all points on the step except for the last four inches toward the rear of the bus.

Archie Truman Bush, Jr., operator of the bus, testified on behalf of defendant. He stated that three persons boarded the bus through the front doors at the stop where plaintiff fell, and that plaintiff was the only one to alight from the bus at this stop. He further stated that he did not look into the mirrors at 'the rear steps at any time after the last passengers had alighted at the rear doors, until after plaintiff fell. He testified that at the time in question he heard a commotion near the rear doors of the bus; that he looked into the mirrors before he arose to go back to the rear steps but did not see anything on the steps; that he arrived at the rear doors and observed a yellow substance approximately three inches in diameter in the center of the bottom step, which appeared as if it had been stepped in. On cross-examination the operator admitted that from his position in the driver’s seat he could see almost all of the horizontal surface of the rear steps by the use of the mirrors with which the bus is equipped, and further in a demonstration which he himself performed, he was able to see the presence of small coins 'which he had placed on the rear step.

Both parties introduced medical testimony and other evidence on the issue of damages. However, since there is no issue here as to this, there is no reason to review the evidence.

Defendant contends that the trial court erred in refusing to sustain its motion for a directed verdict at the close of the evidence, for the reason that there was no substantial evidence of any foreign substance on the step at or prior to plaintiff’s fall, nor was there substantial evidence that plaintiff’s fall was caused by a foreign substance on said step. It is also urged that there was a lack of essential proof, even though plaintiff testified he was caused to fall on something “slippery”, for the reason that it might have been that plaintiff’s shoe was “slippery”, thus bringing into operation the rule that where from a plaintiff’s evidence one or more inferences may be drawn, one of which supports and is an essential element of plaintiff’s case, and the other does not, plaintiff’s case fails as to that element of proof.

In support of this proposition, defendant cites Davis v. St. Louis Public Service Company, Mo., 316 S.W.2d 494, and Davidson v. Missouri Orpheum Corporation, 236 Mo.App. 1025, 161 S.W.2d 707.

There were seven witnesses, ‘ including plaintiff — three passengers, a pedestrian who appeared, at the scene immediately after plaintiff’s fall, a police officer who was called to the scene and who arrived there before the bus was moved from the curb, and the operator of the bus, all of whom testified that they observed the bottom step of the bus immediately after plaintiff’s fall, and saw a foreign substance on the bottom step which appeared to have been stepped in. Plaintiff testified that his foot slipped backward from under him as he stepped onto the bottom step. There was no evidence adduced that there was no foreign substance on the step after plaintiff’s fall.

Under the foregoing testimony it could be reasonably inferred that there was a foreign substance on the step prior to and at the time plaintiff stepped down onto the bottom step, and that plaintiff’s fall was caused by reason of his stepping into said substance. There is no rule of law which excludes reasonable inferences and circumstantial evidence from consideration in determining an ultimate fact. On the contrary, it has been held many times that inferences from circumstantial evidence are fact questions, and where there is credible evidence to support them and they tend to support a necessary element of the cause of action, such inferences are proper for the jury to consider. Alvey v. Sears, Roebuck and Company, Mo., 360 S.W.2d 231, 1. c. 236; Tueteberg v. St. Louis Public Service Company, Mo.App., 41 S.W.2d 956.

Of course, if plaintiff’s own showing puts the evidence in equipoise as between two legitimate inferences, plaintiff may be said to have failed to make a prima facie case. But here no inference that plaintiff fell as a result of “slippery” shoes could be drawn without resort to speculation and conjecture. The jury has a right to disbelieve plaintiff’s testimony, but on a motion to dismiss we must accept it as true together with all reasonable inferences which may be drawn from such evidence.

It is also urged that the motion for a directed verdict should have been sustained for the reason there was no showing that defendant’s operator knew there was a foreign substance on the step, nor was there a showing that it had been on the step a sufficient length of time to charge defendant with knowledge thereof. We find no merit to this contention. We believe the case is governed by the principles laid down in the recent Supreme Court case of Alvey v. Sears, Roebuck and Company, 360 S.W.2d 231, supra. In that case plaintiff, while walking in an aisle of defendant’s store, stepped on something round which caused her to fall. Defendant’s assistant store manager preceded her. There was no one in the aisle between plaintiff and the assistant store manager. The court held that plaintiff made a case for the jury, notwithstanding the fact that she failed to show the length of time the object had been on the floor. The court said:

“It is clear in the case before us that the evidence does not show how long the object (whatever it was), which plaintiff says she stepped on and caused her to fall, was present on the floor. Notwithstanding that fact, the question remains whether the evidence, which for the purpose of our review we must treat as true, justifies a verdict for plaintiff. Such evidence shows: that Tallant whose duty it was to be on the lookout for foreign objects on the floor of his department walked through the aisle about 15 feet ahead of plaintiff; that no one was in the aisle between plaintiff and Tal-lant during the time in question; that Tallant walked by the point where plaintiff fell not more than a few seconds before the fall; that there was an object on the floor on which plaintiff stepped and fell.
“Considering that evidence to be true, did it justify the jury to find that the foreign object was lying in the aisle as Tallant passed by? And could the jury find that the failure on Tallant’s part to discover the object and pick it up or warn plaintiff constitutes negligence? It is true, as defendant contends, that the object (Exhibit 1) or. the floor may have been kicked or rolled to the point where plaintiff stepped on it between the time Tallant passed and when plaintiff reached that point. The jury could well have considered that a possibility but highly improbable. The jury could well have found that it was more likely that the object was there when Tal-lant passed that point.
“We cannot say as a matter of law that Tallant was not negligent in failing to discover and pick up the object on the floor when he passed the point in question.”

In the case at bar we have held that there was sufficient circumstantial evidence from which a jury could reasonably find that there was a foreign substance on the step at the time plaintiff attempted to alight from the bus. There was evidence that no one was near the rear steps for at least two blocks before the bus reached the intersection of Page and Pendleton. It is undisputed that the bus was equipped with mirrors, so adjusted that the operator sitting in his seat in the front part of the bus could see that portion of the bottom step where, according to plaintiff’s testimony, his foot slipped from under him.

It also appears that small objects, no larger than the substance which all the witnesses testified they saw on the rear bottom step, could be seen through these mirrors when such objects were placed on said step. The defendant’s driver admitted he could see small copper and silver coins on the bottom rear step by the use of the mirrors. We therefore have a situation where the bus driver had the means at hand to readily perceive the presence of anj- foreign substance on the step, of the kind here involved, which might render the steps dangerous to persons using them. The bus driver was under the duty to exercise the highest degree of care to look out for the safety of his passengers. Thus, under the facts and circumstances revealed in the record, we believe the case falls within the principles announced in the Alvey case, supra, and that it cannot be said, as a matter of law, that defendant’s employee was not negligent in failing to discover the foreign substance on the step and to warn plaintiff of the danger which its presence created. The court did not err in refusing to direct a verdict for defendant.

Defendant’s final assignment of error is that Instruction No. 1, given at plaintiff’s request, was erroneous because it assumed a controverted fact, namely, that a foreign substance was on the step at or prior to plaintiff’s fall.

That part of the instruction complained of reads as follows:

“ * * * and if you further find that in attempting to alight from the rear door of said bus, plaintiff was caused to slip on a piece of banana or banana peel on the bottom step, * * * and if you further find that by reason of the presence of said piece of banana or banana peel, said step was dangerous and not reasonably safe, and if you further find that prior to plaintiff’s fall, defendant knew, or by the exercise of the highest degree of care, should have known of the presence of said banana peel, in time thereafter to have removed the same or to have warned plaintiff of its presence but defendant failed to remove the piece of banana peel and failed to warn plaintiff of its presence,” etc.

Clearly, the instruction does not assume there was a foreign substance on the step at or prior to plaintiff’s fall. What the court by this instruction required the jury to find was that plaintiff was caused to slip on a piece of banana or banana peel on the bottom step. How could the jury ■find that plaintiff slipped on a piece of banana or banana peel on the bottom step without finding there was a piece of banana or banana peel on the bottom step? The average juror, in our judgment, would construe the language of the instruction to mean that the jury was required to make two findings, namely, that plaintiff was caused to slip on a piece of banana or banana peel, and that the banana or banana peel was on the bottom step at the time he slipped.

We are not without authority to support the above ruling. Geary v. Kansas City, Osceola & Southern Railway Company, 138 Mo. 251, 39 S.W. 774 is directly in point. In that case plaintiff claimed to have been injured when a locomotive “was derailed by reason of the breaking of the flange of the wheel of the front truck thereof, which said wheel was, and for many days prior thereto had been, in a cracked, defective and dangerous condition.” Plaintiff’s verdict-directing instruction required a finding that “defendant’s said engine was derailed by reason of the cracked, defective, and dangerous condition of the wheel of the front truck thereof, causing the flange of said wheel to break; that defendant knew, or by the exercise of reasonable care and caution might have known, of such cracked, defective, and dangerous condition of said wheel in a sufficient time to have made the same reasonably safe for the purpose for which it was used, but failed to do so;” etc. Defendant urged that the instruction assumed that the wheel of the locomotive was cracked, dangerous, and defective. The court held this contention to be without merit. The court said:

“The objection urged to instruction No. 2 given for the plaintiff is that ‘it assumes that the wheel of the locomotive was cracked, dangerous and defective.’ We do not so understand this instruction. What the court told the jury, in this regard, by the instruction was, that ‘if the jury find from the evidence that the defendant’s engine was derailed by reason of the cracked, defective, and dangerous condition of said wheel,’ etc. How the jury was to find that the engine was derailed by reason of the cracked, defective, and dangerous condition of the wheel, without finding that the wheel was in a cracked, defective, and dangerous condition, we think would be past the understanding of the ordinary juryman, and would perhaps suggest itself only to the verbal critic who found it necessary to find some fault in the instruction, which in this instance was evidently not found by the learned counsel for the defendant until after the trial, for their own instructions contain a like assumption, if this be an assumption.”

Other cases in point are Elgin v. Kroger Grocery and Baking Co., 357 Mo. 19, 206 S.W.2d 501; Moore v. St. Louis Transit Co., 193 Mo. 411, 91 S.W. 1060; Sollars v. Atchison, Topeka and Santa Fe Railway Co., 239 Mo.App. 410, 187 S.W.2d 513.

The point made that other parts of the instruction assume that said foreign substance was on the bottom step is without merit. “It is not necessary to sprinkle an instruction with ‘if you so find’ in order to avoid the charge of assumption of facts (88 C.J.S. Trial § 327d p. 857; if the instruction in its beginning, as this one does, plainly requires the jury to find the hypothesized facts from the evidence that is sufficient.” Kelly v. Kansas City Public Service Company, Mo., 335 S.W.2d 159, 1. c. 163.

There is yet another reason why defendant’s contention should not be sustained. By Instruction No. 2 the court charged the jury that “you are further instructed that if you find and believe from the evidence that at the time and place mentioned in the evidence there was no banana or banana peel on said step, * * * then, the plaintiff is not entitled to recover herein under Instruction No. 1 submitted to you herein and your verdict must be for the defendant.”

The court’s instructions should he read as a whole to ascertain the matters submitted, and in some instances an indefinite or ambiguous requirement to find some fact essential to a verdict may be cured by a definite requirement with respect thereto in other instructions. See Piehler v. Kansas City Public Service Co., 360 Mo. 12, 226 S.W.2d 681, and cases cited therein. After reading both Instructions No. 1 and No. 2, no juror would believe that the court considered the existence of the foreign substance on the bottom step as established. On the contrary, after reading both instructions, they would know that it was their duty to find said fact before returning a verdict for plaintiff. We find no error in the record.

The judgment is affirmed.

WOLFE, Acting P. J., and FRANK D. CONNETT, Jr., Special Judge, concur.


author: FRANK D. CONNETT, Jr., Special Judge.

text:
    Margaret A. MULLEN, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, (Defendant) Appellant.
    No. 31475.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied Aug. 14, 1964.

      Donald W. Bird, St. Louis, for appellant.
    Walter S. Berkman, St. Louis, for respondent.
   FRANK D. CONNETT, Jr., Special Judge.

This is an appeal from the trial of a suit for damages for a personal injury suffered by plaintiff while a passenger on defendant St. Louis Public Service Company’s streetcar in St. Louis City. Plaintiff, a woman eighty-one years of age, and others boarded the defendant’s streetcar at a stop just west of Grand Avenue on the south side of Olive Street. The streetcar, operated by Chester A. Daugherty, was headed east and after the passengers had boarded, but before plaintiff was seated, the streetcar started up and attained a speed of ten to fifteen miles per hour. A driveway leading from a parking lot was about 140 feet east of Grand Avenue, on the north side of Olive Street. One, Charles Lofton, drove an automobile from this driveway and in making a right turn to travel west nearly collided with defendant’s streetcar. Defendant’s operator made an emergency stop which caused plaintiff to fall and injure her back.

The plaintiff’s theory of recovery was that defendant’s operator failed to keep a lookout and that this failure was negligence and because of this failure the operator did not observe the Lofton car until too late to warn him, or to make a slow stop. Therefore, he made a sudden stop and caused plaintiff to fall. This theory is evidently grounded upon the case of Oblamski v. St. Louis Public Service Company, Mo.App., 251 S.W.2d 344, where it is stated at page 346:

“In the case at bar it was the duty of the operator of the bus approaching 14th and Clark Avenue, when he saw or could have seen the automobile approaching the intersection from the left at a right angle, and knew or should have known that the two vehicles were converging, to take cautionary steps to avoid injury to his passengers. It was his duty to issue a warning to alert the oblivious driver of the automobile, or to so regulate and reduce the speed of the bus that it could be decelerated or stopped gradually and with safety to the passengers if -danger of collision with the automobile should thereafter arise.”

The trial was held before the Honorable J. Casey Walsh, Judge of the Circuit Court in the City of St. Louis. Plaintiff received a verdict from the jury in the amount of $10,000.00. Judgment was granted. Defendant, St. Louis Public Service Company appeals.

The first allegation of error is that the trial court should have sustained its motion for a directed verdict filed at the close of all of the evidence because plaintiff failed to submit substantial evidence that the operator of defendant’s streetcar could have or would have avoided bringing its streetcar to a sudden stop had the operator kept a different lookout, or that the keeping of a lookout would have avoided the injury.

The evidence was that defendant’s operator saw the Lofton car as it came out of the driveway. The evidence is not clear whether defendant’s operator continuously observed the Lofton car up to the time of the sudden stop. However, the jury could have found from the evidence submitted that defendant’s operator first saw the Lofton car 115 feet away, and that the streetcar was traveling 15 miles per hour (22 feet per second) ; that nothing obstructed his view and that the Lofton car was approaching slowly (no more than 3 miles per hour) on a converging course; that this situation existed for three seconds, long enough for the streetcar to travel 65 feet; that suddenly 45 to 50 feet from the driveway, defendant’s operator apprehended the danger of a collision and made a sudden emergency stop. From this set of facts the jury reasonably could have inferred that defendant’s operator did not keep a proper lookout and that if he had, he would have become aware of the danger of a collision sooner, and he would have had time to avoid the sudden stop by sounding a warning bell or slowing down gradually.

Plaintiff’s verdict directing instruction No. 1 was as follows:

“The Court instructs the jury that it was the duty of the operator of the streetcar to exercise the highest degree of care in operating same for the safety of the passengers riding therein.
“In this connection, you are instructed that if you find and believe from the evidence that on the occasion in question, the plaintiff was a paying passenger on the eastbound streetcar described in evidence which was operated by an employe of defendant St. Louis Public Service Company; and if you further find that while plaintiff was walking toward the rear to find a seat said streetcar was moving eastwardly and downgrade in the 3500 block of Olive Street at approximately 15 miles per hour; and if you further find that when the front end of the streetcar was approximately 25 feet east of the east curbline of Grand Avenue, Mr. Lofton was starting to drive an automobile southwardly from the parking lot described in evidence onto Olive Street; and if you further find that at said time and while the streetcar continued to move eastwardly on Olive Street, the operator thereof failed to exercise the highest degree of care to keep and maintain a careful watch and lookout ahead and laterally; and if you further find that in so failing, the operator failed to exercise the highest degree of care for the safety of his passengers and was negligent; and if you further find that as a direct result of such negligence, if you so find, the operator failed to observe the automobile as it was being driven by Mr. Lofton southwardly from said parking lot onto Olive Street, failed to sound a warning of the approach of said streetcar, and failed to reduce the speed of said streetcar until said automobile was in close proximity to the path of said streetcar; and if you further find that at said time the operator then caused the speed of said streetcar to be retarded suddenly and as a direct result thereof plaintiff was caused to fall backward to the floor of said streetcar and was injured, then your verdict should be in favor of the plaintiff, Margaret Mullen, and against the defendant, St. Louis Public Service Co.”

Appellant complains that this instruction is prejudicial for a number of reasons:

(A) That there was no substantial evidence submitted to support the instruction. The above outline of the evidence refutes ■this charge.

(B) A portion of plaintiff’s verdict directing instruction reads as follows:

“ * * * and if you further find that * * * the operator thereof failed to exercise the highest degree of care to keep and maintain a careful watch and lookout ahead and laterally; and if you further find that in so failing, the operator failed to exercise the highest degree of care for the safety of his passengers and wa-s negligent; * * *.”

Appellant contends that the underlined portions thereof improperly assume that defendant’s operator failed to keep a ■proper lookout and that defendant was negligent. We do not so read the instruction.

(C) The instruction required the jury to •find:

“ * * * that when the front end of the streetcar was approximately 25 feet east of the east curbline of Grand Avenue, Mr. Lofton was starting to drive an automobile southwardly from the parking lot described in evidence onto Olive Street.”

Appellant contends that there was no substantial evidence from which the jury could have found this fact. On page 42 of this transcript the following testimony from Chester A. Daugherty, the opeartor of defendant’s streetcar appears:

“(Q). Well, anyway when the front of your car, let’s say was even with this loading zone, which there is evidence is some twenty-two — twenty-seven feet, was there anything to prevent you from seeing what was coming out of the parking lot?”
(There was an objection interposed, and the following questions) :
“(Q) I’m asking him if he could see what was going on in the parking lot, cars coming out, if any were? A. Well, yes, I could see if there were cars coming out of the parking lot. Q. Did you look at that point? A. Yes. Q. You did? A. Yes. Q. What did you see? A. I saw a car coming out of the parking lot.”

On page 24 of the transcript the witness Virgil Weisner, a photographer, located by the use of photographs, what must have been this loading zone as an area 12 feet long, beginning 15 feet (the building line) from the east curb line on Grand Avenue. Plaintiff’s attorney in examining the witness Daugherty did not make it clear in the record as to what exhibit he is referring to, but by examining all of the photographs offered and the testimony of Mr. Weisner and Mr. Daugherty, it appears there was evidence offered from which the jury could find that the streetcar was approximately 25 feet east of the east curb of Grand Avenue at the time the Lofton car left the parking lot.

(D) Defendant further complains that under this instruction the plaintiff could recover upon the theory that defendant was negligent in failing to take evasive action, even though the jury found that defendant’s operator did so upon the first reasonable appearance of danger. Defendant contends that in making and submitting a primary negligence case on failing to keep a proper lookout, plaintiff must prove and submit that defendant did in fact fail, or was chargeable with failure, to see or discover the Lofton car at the first reasonable appearance of danger, and that defendant had the present means and ability to have avoided the casualty had the lookout been kept. He cites Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 1. c. 24, 25; Creech v. Riss and Company, Mo., 285 S.W.2d 554, 1. c. 562. If plaintiff had submitted his case on primary negligence in failure to warn or slow, then defendant’s complaint would be valid, and plaintiff would be required to submit to the jury that defendant’s operator knew or should have known the imminence of the collision before they could find a breach of the duty to warn or slow. Stakelback v. Neff, Mo.App., 13 S.W.2d 575. However, in the case at bar, plaintiff submitted simply on the failure to keep a lookout. Under such a submission plaintiff is not required to submit to the jury the question of defendant operator’s knowledge of the danger or imminence of a collision. The operator’s'¡knowledge of such is but an evi-dentiary circumstance. Horrell v. St. Louis Public Service Company, Mo., 277 S.W.2d 612. Nydegger v. Mason, Mo., 315 S.W.2d 816, 819. The fact that plaintiff by specifying “failure to warn” and “failure to slow” chose to restrict the means by which defendant’s operator might have avoided the necessity of a sudden stop had he kept a proper lookout is no ground for complaint by defendant who was the beneficiary of such restriction. See Moore v Ready Mixed Concrete Company, supra.

(E) Next, defendant complains that the last six lines of Instruction No. 1, required the jury to find that plaintiff’s fall and injury was caused by “sudden retarding” of the speed of the streetcar but did not require a finding that the action of the operator causing the “sudden retarding” qf the speed of the streetcar was negligence. In response to this complaint we point out again that plaintiff’s submission was on the failure to keep a lookout and not a negligent “sudden retarding” of the speed of the streetcar when the operator finally became aware of the imminence of a collision.

(F) Defendant contends that its duty in the operation of its streetcar is to exercise ordinary care rather than the highest degree of care required by Instruction No. 1. Defendant cites Melton v. St. Louis Public Service Company, 363 Mo. 474, 251 S.W.2d 663. However, that case involved injury to a pedestrian, not injury to a passenger. Although such may be the rule when the duty runs to other vehicles or pedestrians, the duty in this case runs to a passenger. Therefore, the standard is that of the highest degree of care. State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 1. c. 508.

The court at the request of the defendant gave Instruction No. 2 which excused the defendant if its operator was confronted by a sudden emergency:

“ * * * if you further find that Mr. Daugherty was at all times and under all the circumstances then and there existing exercising the highest degree of care for the safety of plaintiff and did not negligently cause or contribute to cause such emergency and could not, in the exercise of said degree of care have anticipated such emergency, if you find there was an emergency. * *

Then at the request of plaintiff the court gave Instruction No. 3, as follows:

“The Court instructs the jury that if you find and believe from the evidence that at the time the operator reduced the speed of the streetcar suddenly, the Lofton automobile was in close proximity to the path of said streetcar; and if you further find that prior thereto and at the time Mr. Lof-ton was starting to drive the automobile southwardly from the parking lot described in evidence and onto Olive Street, the operator of the streetcar, in the exercise of the highest degree of care for the safety of his passengers, could have observed said automobile moving southwardly in the direction of the eastbound streetcar tracks, and at that time said operator should have given a warning of the approach of the streetcar and should have reduced the speed of said streetcar so that the same could be decelerated or stopped gradually if danger of collision with said automobile did thereafter arise, but failed so to do; and if you further find that in so failing, said operator failed to exercise the highest degree of care for the safety of his passengers and was negligent; and if you further find that such negligence, if you so find, of said operator directly contributed in part to cause an emergency or danger of collision with said automobile which thereafter arose, if you do find that an emergency or danger of collision did thereafter arise, then you are instructed that said operator is not excused from his action in reducing the speed of the streetcar suddenly on the ground that he was confronted with a sudden emergency, if any, or because there was then danger of collision, if any, with said automobile.”

Under Point III, defendant citing Stakelback v. Neff, supra, and other cases supporting the proposition, contends that there was no duty on the part of its operator to take evasive action until it became reasonably apparent that there was a danger of collision. Defendant complains that Instruction No. 3 permitted the jury to return a verdict against it upon the mere finding that its operator failed to take evasive action at a time when there was no danger of a collision. This might be true if Instruction No. 3 did permit the jury to return a verdict, but it does not do this. It was not a verdict directing instruction. It instructs the jury that defendant is not excused by an emergency (obviously referring to Instruction No. 2), if its operator was negligent in any of several certain ways hypothesized in the instruction, and that such negligence caused the emergency. Such, of course, is the law. Rohde v. St. Louis Public Service Company, Mo., 249 S.W.2d 417. This case was submitted to the jury on failure to keep a proper lookout in Instruction No. 1. Instruction No. 3 simply hypothesized facts which, if the jury found to be true, would not excuse defendant’s operator on the ground he was confronted with a sudden emergency.

Lastly, under Point No. IV, defendant complains of Instruction No. 5 which was as follows:

“The Court instructs the jury that if you find from the evidence that the defendant’s employe was negligent in the operation of the streetcar as submitted to you in Instruction No. 1; and if you further find that such negligence of the streetcar operator directly caused or directly contributed in part to cause plaintiff to suffer injuries, then you are instructed that the plaintiff is entitled to recover damages for such injuries from defendant St. Louis Public Service Company; and this is so even though you might further find that the acts, conduct or omissions, if any, of Mr. Lofton in operating the automobile described in evidence, may have concurred and combined with the negligence of the streetcar operator to cause plaintiff to suffer injuries.”

Defendant contends that the emphasized portion assumes the controverted fact of the defendant’s negligence. The point is without merit. The first clause of this instruction plainly requires the jury to find defendant’s employe negligent. The in-

struction did not purport to cover the entire case or direct a verdict.

The judgment is affirmed.

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