author: SNYDER, Presiding Judge.

text:
    STATE of Missouri ex rel. Ed BUSHMEYER, Relator, v. The Honorable Clyde S. CAHILL, Jr., Judge of the Circuit Court of the City of St. Louis, Division No. 4, Respondent.
    No. 40949.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 14, 1978.

      J. Douglas McDaniel, Ted F. Frapolli, Dennis B. Mertz, Kroening, Mertz & McDaniel, St. Louis, for relator.
    Louis Gilden, M. Ellen Simmons, St. Louis, for respondent.
    Timothy G. Noble, St. Louis, for St. Louis Bd. of Election Commissioners.
   SNYDER, Presiding Judge.

This is an original proceeding in prohibition arising from an election contest. Relator Bushmeyer seeks to prohibit respondent, The Honorable Clyde S. Cahill, Jr., Circuit Judge of the City of St. Louis, from enforcing his order requiring that all absentee voters in the August 8, 1978 Democratic primary election for the 83rd Legislative District be allowed to recast their ballots in a partial new election. This court’s preliminary writ of prohibition was issued on September 29, 1978. Following briefs and argument, the preliminary writ was made absolute on October 6,1978 by an order noting that an opinion would follow.

The question before this court as presented in the writ of prohibition is whether the circuit court exceeded its jurisdiction in ordering that all absentee voters for the Democratic candidates for the office of State Representative for the 83rd Legislative District in the August primary be allowed to vote a second time in a partial new primary. More specifically, may a partial new election for absentee voters only, in a primary election, be ordered by the circuit court when a candidate for whom some of the absentee voters cast their ballots is disqualified and his name removed from the ballot before election day.

Before the August 8, 1978 primary election, relator herein filed suit in the Circuit Court of the City of St. Louis against the Board of Election Commissioners of the City of St. Louis to remove from the primary ballot the name of John Leisure as a Democratic candidate for nomination for the office of State Representative for the 83rd Legislative District. The suit alleged that Leisure was not a resident of the 83rd Legislative District. The circuit court (Judge Michael F. Godfrey) issued an absolute writ of prohibition which resulted in the removal of Leisure’s name from the ballot and the partial locking of the voting machines so that no votes for Leisure could be cast. The Board of Election Commissioners was also prohibited from counting the absentee ballots which had been cast for Leisure. Relator won the Democratic nomination for State Representative for the 83rd Legislative District in the August primary by 199 votes over his opponent, Owen Eaton.

Within the statutory time prescribed by § 115.531, a petition was filed in the circuit court by several plaintiffs contesting the primary election. In Count I Glenn Young, Deborah Beck, Dorothy Clutts and Alma Flamm, individually and as class representatives for all absentee primary election voters who voted for Leisure, sought a new election. They brought the action pursuant to §§ 115.553(2), 115.577 and 115.549, and alleged that the failure of the Board of Election Commissioners to count their votes and its subsequent refusal to allow them to vote at the polls denied them their constitutional right to vote, relying upon Article I, Sec. 25 and Article VIII, Sec. 2 of the Constitution of the State of Missouri, as well as the Fourteenth Amendment to the Constitution of the United States. These plaintiffs sought injunctive relief in Count II which requested the court to order a new primary election.

In Count III Robert Stevenson, Nettie Hunt, J. B. “Jet” Banks, Sorkis J. Webbe, Jr. and Mae Francis, individually and as members of the 83rd Legislative District Committee of the Democratic Party, sought a new election. They relied upon §§ 115.-553(2), 115.577, 115.549 and 115.529, and alleged that they were necessary parties who were not joined in the first lawsuit brought by relator Bushmeyer against the Board of Election Commissioners. In Count IV Stevenson, Hunt, Banks, Webbe and Francis sought injunctive relief for a new primary election, and in Count V the class action plaintiffs sought a declaratory judgment.

Owen Eaton, the defeated primary candidate, sought a new election in Count VI pursuant to §§ 115.527,115.529 and 115.531. He alleged that the plaintiffs named as members of the 83rd Legislative District Committee of the Democratic Party were necessary parties to the first lawsuit brought by relator Bushmeyer, and that the absentee voters for Leisure were denied their constitutional right to vote, again relying upon Article I, Sec. 25 and Article VIII, Sec. 2 of the Constitution of the State of Missouri and the Fourteenth Amendment to the Constitution of the United States.

The cause was heard before respondent who on September 28, 1978 signed findings of fact and conclusions of law, an order and a memorandum opinion. However, he stayed entry of the order until September 29 to allow relator an opportunity to file this proceeding. Respondent allowed plaintiffs in Count I to proceed as a class. Respondent also found that plaintiffs in Count I were disenfranchised because their absentee ballots for Leisure were not tabulated and they were then not allowed to vote a second time at a polling place, holding that they were denied their constitutional right to vote under the Constitution of the State of Missouri and denied equal protection of the laws under the Constitution of the United'States. The court found this disenfranchisement was an irregularity in the August primary which necessitated the calling of a new election, but only for the 337 voters who had cast absentee ballots.

As to plaintiff Eaton’s Count VI, respondent adopted and incorporated by reference its findings on Count I and held that Owen Eaton was a party who satisfied the statutory requirement for a primary election contest pursuant to § 115.531.

The right to contest an election exists solely as established by statute, and one seeking relief under statutory provisions must bring himself strictly within their terms. State ex rel. Conaway v. Consolidated School Dist. No. 4 of Iron County, 417 S.W.2d 657, 659[4] (Mo. banc 1967), cases cited therein and Barks v. Turnbeau, 573 S.W.2d 677 (St. Louis District, Mo.App., filed September 12, 1978). Likewise, the jurisdiction of the circuit court is confined strictly to statutory provisions governing election contests and “ ‘the letter of the law is the limit of (its) power’.” State ex rel. Bonzon v. Weinstein, 514 S.W.2d 357, 362[6] (Mo.App.1974). Even courts of equity have no power, absent statutory authority, to determine election contests. Nichols v. Reorganized School Dist. No. 1 of Laclede County, 364 S.W.2d 9, 13[6] (Mo. banc 1963).

The election contestants in their petition relied upon various sections of the statute. Plaintiffs Young, Beck, Clutts and Flamm, absentee voters, cited the following statutory sections, which are set forth in pertinent part below:

Sec. 115.549 If any court trying a contested primary election determines there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election, it may order a new primary election for the contested office. . . .
Sec. 115.553(2) The result of any election on any question may be contested by one or more registered voters from the area in which the election was held. . . .
Sec. 115.577 Not later than thirty days after the official announcement of the election result by the election authority, any person authorized by section 115.-553 who wishes to contest the election for any office or on any question provided in section 115.575 shall file a verified petition in the office of the clerk of the appropriate circuit court. .

Plaintiff Eaton relied upon:

Sec. 115.527 Any candidate for nomination to an office at a primary, election may challenge the correctness of the returns for the nomination charging that irregularities occurred in the election.
Sec. 115.529 Circuit courts shall have jurisdiction to hear and determine all primary election contests.
Sec. 115.531 Not later than five days after the official announcement of the results of a primary election is issued by the election authority or the secretary of state, as the case may be, any candidate desiring to contest the primary election shall file a verified petition in the office of the clerk of the circuit court of any circuit in which part of the election was held and in which any alleged irregularity occurred. .

Initially the statutory authority of plaintiffs Young, Beck, Clutts and Flamm to bring their cause of action must be established or found wanting.

As registered voters these plaintiffs were authorized by § 115.553(2) to contest “any question” in an election. The statute defines “question” as “any measure on the ballot which can be voted ‘YES’ or ‘NO.’ ” § 115.013(22). However, these plaintiffs were seeking a new primary election on a matter relating to nomination to office rather than a ballot “question” as defined in the statute. The only statutory provision authorizing such relief, § 115.527, does not apply to them as registered voters, but is available only to candidates. Therefore, plaintiffs Young, Beck, Clutts and Flamm did not have standing to challenge the nomination of relator.

Even though these plaintiffs alleged infringement of their constitutional right to vote, standing to complain and their allegations must fall within the statutory provisions relating to election contests because they have cited the election contest statutes as their authority to file suit. Respondent exceeded his jurisdiction in proceeding on their claim and granting them a new primary election.

Respondent found that plaintiff Eaton had standing to sue pursuant to § 115.531 which is the section prescribing the procedure for filing, and the contents, of the petition. Eaton, himself, correctly plead § 115.527 as his authority to file the election contest. However, the only fact alleged by. Eaton challenging the correctness of the returns and charging irregularities was that “in failing to count the votes cast by absentee ballots the Board of Election Commissioners effectively denied registered voters their constitutionally guaranteed right to vote.” Respondent perceived correctly that the essence of plaintiff’s argument was not only that absentee ballots for Leisure were not counted, but also that absentee voters for Leisure were barred from voting for a qualified candidate at the polls. Respondent’s order was based upon the contention that the denial to these absentee voters of a second vote at the polls was a denial of their constitutional right to vote.

Respondent relied on Article I, Sec. 25 of the Constitution of the State of Missouri which states that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage” and Article VIII, Sec. 2 which provides that “all citizens of the United States . . . are entitled to vote at all elections by the people.” He interpreted these articles to guarantee the right to vote to these absentee voters. However, the right to vote may be regulated by statute, Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629, 631[1] (1913), and the regulation of primary elections is within the police power of the state. In State ex rel. McClellan v. Kirkpatrick, 504 S.W.2d 83, 88 (Mo. banc 1974) the court stated that the preservation of the integrity of the electoral process is a legitimate and valid state goal.

To vote by absentee ballot is not a matter of inherent right but rather a special privilege available only under certain conditions, as respondent has stated in his well-written memorandum opinion, State ex rel. Hand v. Bilyeu, 346 S.W.2d 221, .225[3] (Mo.App.1961); Barks v. Turnbeau, supra, 7. By the very nature of absentee voting, the voter is declaring that he will be unable to participate in the regular voting process at the officially designated polling place on the date of the election. Rather than forsake his opportunity to vote, however, he utilizes the absentee privilege. By casting his vote prior to election day, the absentee voter accepts the risk that his vote may not be counted as a result of events occurring between the date he votes absentee and the date of the election. In this case, the absentee voters accepted the possibility, which became a reality, that their candidate (Leisure) would be disqualified. When the disqualification occurred the absentee voters were not disenfranchised as respondent found. By exercising the privilege to vote absentee, the voters accepted the risks accompanying that manner of voting. These risks are best borne by the person utilizing the privilege. To maintain the order, speed and integrity of the election process, it is essential that the process itself, should not be susceptible to risks which disrupt it.

Voters are not entitled to two votes, that is, one by absentee ballot and one at the polling place. Respondent argues that no notice was given the absentee voters that Leisure had been disqualified, but that polling place voters were notified by means of the partially locked machines. Even if the absentee voters had been given notice, they would have been prohibited by statute from casting a second vote. The legislature has recognized potential problems should an absentee voter attempt to vote again at the polls, by enacting § 115.-297 which provides that a person who has voted an absentee ballot shall not be allowed to vote at the polls on election day. The effect of ordering all voters who voted absentee in the August primary to vote again is to allow these voters a second vote in a partial new primary. Respondent cites no authority, nor does research disclose any, to support this procedure.

Additionally, there are severe practical problems if respondent’s order is not prohibited. The pleadings and arguments disclose that three of the absentee voters have died and four have moved from the district. The question arises whether those who have moved would be entitled to vote again at a time when they are no longer residents of the district.

Because of the secret ballot, it is impossible to identify which specific named absentee voters voted for Leisure. Therefore, if respondent’s order should be approved, those individuals who voted by absentee ballot for relator or for plaintiff Eaton in the August primary would be given an unauthorized second vote, though they earlier cast a valid ballot which was counted. They would be permitted to change their votes, a privilege not allowed by the statutes for any reason.

In addition, there would be the possibility of a challenge to some of the ballots cast in the new partial election, or possibly another election contest. There must be an end to election litigation. The statutes were drafted to assure early resolution of election disputes and quick and certain certification of the results.

To avoid the situation which currently confronts the court in future elections, the Board of Election Commissioners would be required to notify absentee voters who had voted for a disqualified candidate. To determine which absentee voters had so voted, the Board would be required to open ballots prior to the day authorized by law and to identify voters with the candidate for whom they had voted, contrary to the secret ballot. Thus, the Board would violate the law to achieve its end. Such a procedure cannot be condoned.

The problem encountered here may in the future be brought to the attention of the legislature and a statutory solution enacted into law. At present, however, the election laws do not permit a second vote under the circumstances being considered here.

Finally, the equal protection argument raised by-plaintiffs and adopted by respondent must be considered. Respondent’s order indicates that the failure to notify absentee voters that Leisure had been disqualified denied them equal protection of the laws, reasoning that voters who appeared at the polls received notice of Leisure’s disqualification by virtue of the fact that the machines were partially locked to prevent a vote for Leisure. Respondent found that absentee voters cannot be treated differently from polling place voters, but that the former in fact were treated differently because they did not receive notice of the disqualification, and hence were disenfranchised. At first reading the argument regarding lack of notice seems plausible. Obviously, when one group receives notice (polling place voters) while another (absentee voters) does not, the groups are treated differently. However, lack of notice is consistently treated as a procedural due process deficiency and not as a denial of equal protection. And, because the absentee voters here, by utilizing the privilege of voting by absentee ballot, assumed the risk of disqualification of their candidate and were not in fact disenfranchised, they have not been treated differently from the polling place voters, except in a manner permissible under the election statutes relating to absentee balloting and primary election contests. Thus, the equal protection argument is not valid.

The preliminary writ is made absolute.

WEIER, C. J., and SMITH, J., concur.

      . All statutory references are to RSMo Supp. 1977 unless otherwise noted.

      . The trial court did not rule on Counts II, IV and V. It dismissed Count III because plaintiffs Stevenson, Hunt, Banks, Webbe and Francis lacked standing to sue under the statutes. Matters relating to these counts were not raised in the petition for writ of prohibition, are not before this court, and need not be discussed further.

      . It is not necessary to determine whether these plaintiffs properly constituted a class. They lack standing either individually or as a class.
      Nor can these plaintiffs pursue their election contest on the basis of § 115.549. They must have standing to initiate the action before they can allege irregularities of sufficient magnitude to cast doubt on the validity of the election.

      . The failure to count absentee votes for Leisure could not, itself, form the basis for respondent’s order as it was not an irregularity as required by the statutes. The failure to count the absentee votes for Leisure occurred pursuant to the court’s earlier order and, thus, could not be an irregularity.

      . No opinion is expressed as to whether, given other factual situations, absentee voters, constitutionally, may or may not be treated differently than polling place voters.


source: Caselaw Access Project

author: CLEMENS, Judge.

license: Public Domain

text:
    Henry SHANNON, Respondent, v. WASHINGTON UNIVERSITY, Appellant.
    No. 39715.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 21, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.

      Joseph M. Kortenhof, St. Louis, for appeb lant.
    Frank B. Green, St. Louis, for. respondent.
   CLEMENS, Judge.

Defendant has appealed a $10,000 judgment entered pursuant to a verdict for plaintiff who was injured when he slipped and fell on defendant’s icy sidewalk. Defendant challenges the submissibility of plaintiff’s evidence.

During the night of December 11, 1972 and continuing through the next afternoon, the St. Louis area experienced an ice storm, intermittent but severe, resulting in a widespread glaze of ice. At defendant’s campus a ground crew began work early in the morning to remove the ice by chipping and salting the walkways and parking lots. By 4:00 o’clock the campus was relatively clear, although some icy patches remained.

The defendant’s policy was to keep the campus open 24 hours a day, 365 days a year, regardless of weather conditions. The class in which plaintiff was enrolled remained open and attendance was compulsory, there being a penalty for failure to attend.

Plaintiff reached the campus with no difficulty, arriving early for his class. Carrying his books and class materials, plaintiff went first to his advisor’s office, from there to his professor’s office, and then to the student cafeteria to buy a sandwich. In doing so, plaintiff necessarily had to cross the campus walkways from one building to another. He testified he felt safe and but for a few scattered patches of ice he felt the campus was in safe condition. It was only when leaving the cafeteria building that plaintiff ran into difficulty. He had to leave the building through a glass door, walk down a few steps, and traverse what appeared to be a cleared area. While walking across this “cleared area,” he slipped and fell. Getting up, he noticed the apparently clear area was actually a sheet of ice. The extent of plaintiff’s injuries and the size of his verdict are not challenged.

The issue on appeal is whether the evidence made a submissible case of liability. Defendant contends it does not for two reasons. First, that there was no showing defendant had sufficient time to remove the ice from the sidewalk, after cessation of the ice storm. Secondly, defendant contends the condition of the sidewalk was open and obvious, as well known to plaintiff as to defendant and that plaintiff was therefore contributorily negligent in failing to observe the condition and take suitable precautions.

Defendant’s first contention erroneously likens a private university’s duty of care to that of a municipality. Gudorp v. City of St. Louis, 372 S.W.2d 483[4-9] (Mo.App.1963). Not so. The defendant’s obligation to exercise ordinary care to keep its premises in a reasonably safe condition is that of a private landowner. Hulahan v. Sheehan, 522 S.W.2d 134[3-6] (Mo.App.1975); Corley v. Andrews, 349 S.W.2d 395[1-2] (Mo.App.1961). The large size of defendant’s property does not absolve it from its duty to invitees. To hold otherwise would place the size of the property in issue in all such cases involving private landowners. Clearly, the court in Gudorp did not contemplate such a result. There was therefore no need to specifically demonstrate defendant had sufficient time to remove the ice from the sidewalk because such a showing is only mandated in cases where a municipality is charged with liability. Gudorp, supra. That issue was for the jury on the submitted issue of defendant’s negligence.

An invitation to enter private premises carries with it a duty to invitees to maintain in a reasonably safe condition those areas intended for the invitees’ use. O’Connell v. Roper Electric Co., Inc., 498 S.W.2d 847[1-4] (Mo.App.1973); Evans v. Sears, Roebuck and Co., 104 S.W.2d 1035[3-5] (Mo.App.1937); Hulahan, supra, [5-7]. Construing the evidence in a light most favorable to plaintiff, it was sufficient to submit the case on the question of whether defendant breached its duty to plaintiff to use ordinary care to keep the walkway in a reasonably safe condition. Corley, supra, [2].

Defendant next contends the case should not have been submitted to the jury since the evidence demonstrated the condition of the sidewalk to be “open and obvious,” as well known to plaintiff as to defendant. Generally, each case depends on its own circumstances. There is no precise formula by which to determine whether or not a condition is so “open and obvious” one is bound to see it. O’Connell, supra, [4]. However, it is well established that the challenged condition must be so obviously dangerous that a reasonably prudent individual would not attempt it. Newberry v. City of St. Louis, 335 Mo. 1, 70 S.W.2d 546[1-3] (1934). The facts here preclude such a finding. Plaintiff testified the sidewalk looked clear, he felt safe walking upon it, and did not notice its icy condition until he fell. Further, defendant’s maintenance superintendent, charged with the responsibility to clear the walks, testified he had observed the particular area in question several times that day and saw ice patches. This leads to the conclusion plaintiff was not so aware of the sidewalk’s condition as to comprehend the danger, and would also charge defendant with at least constructive knowledge of the presence of ice.

Defendant was not entitled to a directed verdict by virtue of this evidence because one’s knowledge of the general condition from which the danger arose (i. e., the ice storm) does not necessarily constitute knowledge and appreciation of the specific danger involved, that is, the ice at the spot where plaintiff fell. Davidson v. International Shoe Co., 427 S.W.2d 421[4] (Mo.1968). Before a plaintiff can be denied submission of his case to the jury, a defendant must show plaintiff had knowledge of the danger posed by the area of the sidewalk where plaintiff fell. See Sprague v. Riley, 427 S.W.2d 263[3-6] (Mo.App.1968). Such a showing is lacking here, and therefore the issue of plaintiff’s contributory negligence was properly submitted to the jury.

In sum, the jury could have believed plaintiff’s submission the sidewalk was not reasonably safe; that defendant knew but plaintiff did not know of the unsafe condition; that defendant did not exercise ordinary care to remove the ice at the place of plaintiff’s injury. (MAI 22.03). And, the jury could have disbelieved defendant’s submission that plaintiff failed to keep a careful lookout. (MAI 32.01).

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: PER CURIAM.

text:
    CITY OF FLAT RIVER, Respondent, v. Robert A. McILRATH, Appellant.
    No. 39506.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 21, 1978.
    Robert A. Mcllrath, Michael L. Maynard, Mcllrath & Maynard, Flat River, .for appellant.
    Charles W. Medley, James E. Alexander, Farmington, for respondent.
   PER CURIAM.

Defendant was tried by a jury and convicted of careless and imprudent driving pursuant to Section 340.010, Revised Ordinances of the City of Flat River in the Circuit Court of St. Francois County, Missouri. The jury assessed his punishment at a fine of $100.00. The defendant appeals to this court.

We have examined this case and find that the trial court committed no error of law and that the verdict is supported by sufficient evidence. An opinion discussing the facts and law would have no precedential value.

In compliance with Rule 84.16(b), we affirm.

All the Judges concur.


author: REINHARD, Judge.

text:
    Donald WISSMAN, Appellant, v. Virgil C. WISSMAN, Respondent.
    No. 38955.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 21, 1978.

      James C. Butcher, Butcher, Marshall & Cline, Columbia, for appellant.
    Mike A. Dallmeyer, Hendren & Andrae, Jefferson City, for respondent.
   REINHARD, Judge.

Plaintiff brought this action for personal injuries sustained as a result of an accident involving a tow truck owned and operated by defendant. The case was tried under the doctrine of res ipsa loquitur, and an instruction on contributory negligence was given. A jury found in favor of defendant and plaintiff appeals.

On August 3, 1974, plaintiff assisted defendant in recovering a disabled automobile. Two tow trucks w;ere utilized in this operation; plaintiff handled the larger truck, and defendant drove the smaller truck with which the automobile was towed to defendant’s salvage yard. Plaintiff drove the larger truck into the yard, parked it, got out, and directed defendant to back up the smaller truck, still holding the disabled automobile, to within a couple of feet from the rear of the larger truck. Plaintiff was clearly visible to defendant as the latter backed up his truck. Plaintiff then signalled defendant to stop the truck. Defendant stopped his truck and, according to defendant, set the electric brakes, leaving the motor running at this time. The electric brakes are set by pulling a toggle switch on the dashboard and applying pressure to the brake pedal.

Plaintiff observed the vehicle stop and, consistent with the parties’ customary procedure in this type of operation, stepped between the rear of the larger truck and the bumper of the disabled automobile, for the purpose of attaching chains to the automobile in order to raise it and remove the towing dollies. The smaller truck then rolled backward, pinning plaintiff between the towed automobile and the larger truck and resulting in a fracture of plaintiff’s left femur.

Plaintiff and defendant had performed this kind of procedure numerous times and were aware of the responsibilities of each in performing it, responsibilities which included defendant’s stopping the truck and alighting from it to help plaintiff. Defendant had just descended from his truck when he noticed it rolling back. Upon hearing plaintiff call for him to pull up, defendant got back into the vehicle, moved it forward and set the electric brake, noticing that the toggle switch had remained in the pulled position. There was testimony that the brake lights would remain on if the brakes had been properly locked, but plaintiff testified that he did not look to see whether the brake lights were on.

Plaintiff first contends that there was no evidence justifying the submission of a contributory negligence instruction and that the court erred in submitting Instruction No. 6, defendant’s contributory negligence instruction.

It is axiomatic that giving an instruction is error if it is unsupported by the evidence. In determining whether an instruction has the necessary evidentiary support, the evidence is considered in the light most favorable to the defendant, disregarding plaintiff’s evidence unless it tends to support the submission. Rickman v. Sauerwein, 470 S.W.2d 487, 489 (Mo.1971).

Every person is required to make ordinary use of his faculties to observe and avoid danger. Murphy v. S.S. Kresge Co., 239 S.W.2d 573, 580 (Mo.App.1951); Schilling v. Bi-State Development Agency, 414 S.W.2d 818, 824 (Mo.App.1967). Although the maxim sounds simple, there is no easy formula to be applied in ascertaining the conduct required of plaintiff. What amounts to ordinary care in a specific situation depends on the particular surrounding circumstances, and therefore as to a determination of negligence, be it primary or contributory, each case must depend on its own facts. Miller v. Sabinske, 322 S.W.2d 941, 946 (Mo.App.1959); Coats v. Sandhofer, 248 S.W.2d 455, 458 (Mo.App.1952).

Furthermore, a determination of contributory negligence is generally a matter for the jury. It is to be taken from them only if reasonable minds could not differ as to the existence or absence of negligence. Miller v. Sabinske, supra at 946. Considering the facts of this case, we believe that the plaintiff’s contributory negligence was a jury question and the giving of a contributory negligence instruction was proper.

Under the circumstances of this case, plaintiff is held to be aware of the danger inherent in placing himself between two heavy pieces of machinery. The standard of ordinary care to which plaintiff is bound by this awareness is a relative standard requiring precautions commensurate with the dangers to be reasonably anticipated under the circumstances. De Mariano v. St. Louis Public Service Company, 340 S.W.2d 735, 743 (Mo.1960); Niemczyk v. Burleson, 538 S.W.2d 737, 741 (Mo.App.1976).

Plaintiff argues that he was merely following the procedure that had been used many times before, that he was where he had a right to be, doing what he had a right to do, and that the law does not require him to anticipate the negligence of others. Although plaintiff is correct in his general proposition that one is not negligent for failing to anticipate danger arising from the negligence of others, this principle is not applicable here to relieve him of his duty to exercise ordinary care for his own safety under the circumstances. The danger of stepping between two heavy pieces of machinery on an incline was present and apparent, and whatever plaintiff’s assumption about defendant’s conduct, plaintiff was nevertheless bound to exercise ordinary care for his own safety.

Floyd v. Thompson, 356 Mo. 250, 201 S.W.2d 390 (1947), was a wrongful death action based on the alleged failure of defendant railroad to provide adequate effective brakes on railroad cars into which deceased was loading scrap metal. Defendant claimed contributory negligence, and after a verdict for defendant, plaintiff appealed, alleging that the contributory negligence instruction should not have been given because plaintiff’s decedent had a right to rely on the hand brakes working. In rejecting plaintiff’s contention, the Missouri Supreme Court held that although plaintiff was not bound to anticipate the omission of defendant in failing to equip the cars with efficient brakes, “so far as ‘primary negligence is concerned, the obligation to exercise due care remains mutual and reciprocal. One may not disregard the laws of prudence and exact of others a primary obligation to protect him against his lack of caution. If he exercises due care for his own safety, then, ... he may rely on the presumption that others will obey the law.’ ” Id. at 394, citing Dempsey v. Horton, 337 Mo. 397, 84 S.W.2d 621, 626 (1935).

In Romandel v. Kansas City Public Service Co., 254 S.W.2d 585 (Mo.1953), the court dealt with the alleged contributory negligence of a woman who was struck by a streetcar while she was walking with the light across an intersection. Although in that case the Supreme Court was considering a defendant’s contention that plaintiff had been contributorily negligent as a matter of law, the facts and language of the case are appropriate. After recognizing that generally a person is not required to look for danger where there is no reason to anticipate it, the court stated:

The “Walk” light itself was some assurance to plaintiff that she could proceed safely. She had the right to assume that all southbound vehicles would stop. . And plaintiff had the “right-of-way.” Of course, neither her right to assume that southbound vehicles would stop nor having the “right-of-way” relieved her of her duty to exercise ordinary care. .
[These were] factors to be considered by the jury in determining whether she was negligent in not looking northward again. (Emphasis added).

Id. at 591.

Applying these principles to the evidence in this case, we cannot say that defendant did not make a submissible case of contributory negligence. The vehicles were on a slight incline. There was evidence from which a jury could have found that plaintiff knew that his father was going to step from the truck and leave it unattended when he came back to assist the plaintiff. Furthermore, the evidence showed that the vehicle would be out of gear and that the motor would remain running. There was also evidence that the plaintiff knew that the brake lights would remain on if the electric brake had been properly activated. By plaintiff’s own admission he did not look to observe if the brake light was on or remained on. Under these circumstances, we cannot say a jury could not determine that the plaintiff failed to exercise ordinary care for his own safety by stepping between the vehicles without first observing whether or not the brake light was on and remained on.

Plaintiff also contends that the language in Instruction No. 6 gave the jury a roving commission to speculate upon a number of things plaintiff might have done or could have done to avoid the accident.

The challenged language of Instruction No. 6 reads:

Your verdict must be for defendant whether or not defendant was negligent if you believe:
First, plaintiff stepped directly behind the vehicle operated by defendant without first determining that the brakes were set, and
Second, such conduct of the plaintiff was negligent, .

We agree with plaintiff that the instruction was erroneous. There was evidence presented that in some cases defendant relied on the electric brake system as was claimed here and that under other circumstances, such as on steep inclines, he also utilized the hand brake. Plaintiff in his brief lists several actions he might have taken before stepping between the vehicles. Because these were various means by which plaintiff could have ascertained whether the brakes were set, the general language used in the instruction, “without first determining that the brakes were set,” was inadequate in failing to specify what plaintiff might have done. The instruction was too general and amounted to a roving commission because it gave the jury no guidance as to what conduct in regard to the brake was improper but invited the jury to speculate on what particular acts or omissions on the part of plaintiff would constitute contributory negligence. Hawkeye-Security Ins. Co. v. Thomas Grain Fum. Co., 407 S.W.2d 622, 630 (Mo.App.1966). For this reason, it is necessary that the case be remanded for a new trial.

Plaintiff’s final point is that the court erred in giving Instruction No. 6 because that instruction, especially when considered in combination with Instruction No. 3, required appellant to carry a greater burden of proof than is lawfully required of him under the res ipsa loquitur doctrine. Although we would like to point out that contributory negligence can be a proper defense in a res ipsa loquitur case, Jones v. Thompson, 360 Mo. 285, 228 S.W.2d 673, 677 (1950), we need not determine this issue because of our finding that a remand is necessary. The issue may not arise on retrial.

Reversed and remanded.

STEWART, P. J., and STEPHAN, J., concur.

      . However, at the time plaintiff stepped between the vehicles and until defendant had removed his foot from the brake pedal, the iilumi-nation of the brake lights would have indicated only that the brakes were being applied, not necessarily that they had been locked.

      . Plaintiff also alleges that Instruction No. 6 improperly deviated from MAI 32.01, resulting in prejudice to plaintiff. Because of our determination that the instruction permitted a roving commission, we do not reach the merits of this contention. However, we note that MAI 32.01 has since been redrafted into 32.01(1) providing a contributory negligence instruction submitting a single negligent act and 32.01(2) providing a contributory negligence instruction submitting multiple negligent acts. If appropriate, these new forms should be utilized on retrial.


text:
    D. A. Z. and R. M. Z., Respondents, v. M. E. T., Jr., Appellant.
    No. 39377.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 21, 1978.
    James M. Daly, P. C., St. Louis, for appellant.
    Martin Schiff, Jr., Webster Groves, James J. Raymond, Richard J. Schnidman, Raymond & Leggat, Inc., Clayton, for respondents.
   CLEMENS, Judge.

Natural father has appealed from a decree of adoption. The petitioners are the child’s mother and her present husband whom she married in 1971. The defendant-father did not expressly consent to the adoption and the issue before us is whether he constructively did so by wilfully abandoning or neglecting the child by failing to provide proper care and maintenance “for a period of at least one year immediately prior to the filing of the petition for adoption.” This critical period was from June 1972 to June 1973. The trial court found for petitioners and decreed adoption.

The child, S.L.T., now twelve years old, was born to defendant-father, M.E.T., Jr., and his wife, petitioner R.M.T., now R.M.Z. They were divorced in Michigan in 1967. Custody was granted the mother and defendant-father was granted visitation rights and ordered to make weekly child-support payments to the “Friend of the Court” in Grand Haven, Michigan.

Defendant contends the evidence was insufficient to support the court’s finding of his constructive consent to the adoption.

The critical period is June 5,1972 to June 5,1973, the date petitioners filed their petition. Michigan court records confirm the mother’s testimony that defendant made no payments for child support from May, 1970 to November, 1974. He explains his failure to provide support payments by arguing he had no knowledge of the child’s location from 1972 to 1973 and he was uncertain of his responsibility. True, both petitioners and defendant lived at several locations following the divorce. However, the mother kept the Michigan court and defendant’s parents informed of the child’s whereabouts. And, during the critical year, defendant’s only contact with the child or petitioners consisted of sending the child a doll and some doll clothes for Christmas, 1972.

We agree with petitioners’ contention that the child’s location did not affect defendant’s duty to send support payments to the Michigan Court; defendant does not refute this. The duty to support a child is a continuing obligation, unaffected by the conduct of the custodial parent. In Re Adoption of Rule, 435 S.W.2d 35[3, 4] (Mo.App.1968).

Because defendant’s intent is relevant, we have considered his conduct before and after the statutory year. In re Adoption of K., 417 S.W.2d 702[11-13] (Mo.App.1967). From the time of the divorce in 1967 until defendant was served with the petition for adoption in 1972 his efforts to support his child or maintain contact with her were sporadic and non-existent for long periods. His pre-adoption conduct does not dispel the judicial conclusion that for the critical statutory year his conduct was “intentional, deliberate, and without just cause or excuse.” In re Adoption of P.J.K., 359 S.W.2d 360[4, 5] (Mo.App.1962). Defendant’s paternal conduct after the adoption petition was filed was self-serving and does not refute his abandonment of all paternal duty during the critical year.

We find substantial evidence in the record to support the trial court’s findings of defendant’s intent to wilfully abandon or neglect the child for at least one year prior to the filing of the petition. Civil Rule 73.01(d), V.A.M.R. In re Adoption of Rule, supra, at [1].

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: WEIER, Judge.

text:
    George LEONARD and Jerry M. Leonard, Plaintiffs-Respondents, v. GORDON’S TRANSPORT, INC., a corporation, and Orville Gene Augustin and Rafig Ahmed Mughal and Sanford J. Gubernik, Defendants-Appellants.
    Nos. 39291, 39292 and 39293.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 21, 1978.

      Robert C. Ely, Ely & Wieland, St. Louis, for defendants-appellants.
    Joseph A. Fenlon, Steiner & Fenlon, Clayton, James E. Godfrey, Heege & Heege, Clayton, for plaintiffs-respondents.
   WEIER, Judge.

In this lawsuit arising out of a collision on Interstate Highway 270 involving four cars, a jury returned a verdict against all four defendants and in favor of plaintiff Jerry Leonard in the sum of $25,000 and in favor of plaintiff George Leonard in the sum of $8,000. The trial court entered judgment in accordance with the jury verdict and later overruled all motions for judgment notwithstanding the verdict and for new trial. All four defendants appealed but the dispute between plaintiffs and the two defendants, Gubernik and Mughal, was settled as a result of an appellate settlement conference. The appeal of defendants Gordon’s Transport, Inc., and Augustin remains. Gordon’s owned the car driven by Augustin, who at the time of the accident was in the course of his employment with Gordon’s.

These two remaining defendants contend their motion for directed verdict should have been sustained because there was insufficient evidence that they were negligent. They also claim error in the giving of two verdict-directing instructions. These points center around Augustin’s alleged failure to keep a careful lookout and his alleged violation of a statute prohibiting driving in the left-hand lane when not passing other vehicles. We affirm.

The evidence indicates, and all parties agree, that plaintiffs were in no way at fault in causing this accident. On June 25, 1974, the car in which plaintiffs were riding was proceeding south on Highway 1-270 (then 1-244) near Olive Street Road when it was struck head on by the car driven by Augustin. At this point Highway 270 was a six-lane highway with three lanes north bound and three lanes south bound separated by a median strip. Augustin had been driving north in the inside left lane of the highway when his automobile came into collision with a car driven by Mughal (which may or may not have been hit by a car driven by Gubernik) causing the Augus-tin car to go across the grassy median and into the front of plaintiffs’ south-bound car. Plaintiffs had no time to avoid the collision.

When the collision occurred at about three o’clock in the afternoon, traffic was described as “fairly heavy,” “pretty crowded,” “moderate, normal,” “normal,” and “a little heavier than normal.” David Gene Buehrer, not involved in the collision, witnessed the events leading up to the accident. He was traveling north in the inside left lane of the north-bound lanes when he observed a gold colored sports car (a Mercedes driven by Gubernik) come up behind him. Buehrer moved his car over to the center north-bound lane and Gubernik’s car passed him on his left. Gubernik then moved his car to the center lane in front of Buehrer and speeded up to pass a tan car (driven by Augustin), which was traveling in the inside left lane. A light blue station wagon (driven by Mughal) was ahead of Gubernik’s car in the center lane. Mughal had passed Augustin on Augustin’s right a short time before just south of the Olive Street Road overpass. When Mughal passed Augustin, Augustin was going between fifty and fifty-five miles per hour and Mughal was going about five miles per hour faster. As the distance between Gu-bernik’s car and Mughal’s car closed, Guber-nik attempted to move into the inside left lane again to pass the blue car. In so doing, he attempted to pull in front of the tan car. The instant that the gold colored car attempted to move in front of the tan car, the blue car skidded out of control into the extreme left lane. Mughal admitted he slowed his car from fifty miles an hour to fifteen or twenty miles an hour in a very short distance. He did this because in his words “at a distance [ahead] all the traffic was almost blocked and stopped.” Continuing, he related that Gubernik’s car, “somehow got through [between Mughal’s blue car and Augustin’s tan car] but I could not see how he went to get through there because the tan car at the same time collided with the blue sedan.” Gubernik’s car struck Mughal’s car or came close to hitting it. Gubernik then drove onto the grassy median and eventually stopped his car. The right front fender of Augustin’s car struck the left front fender of Mughal’s car. Then Augustin’s car crossed the median and struck plaintiff’s car head on. As soon as Augustin’s car hit Mughal’s car, Augustin was knocked unconscious. Buehrer estimated the speed of both Augustin’s and Mughal’s cars right before the accident to be fifty miles an hour, and the speed of Gubernik’s car to be fifty-five to sixty miles an hour.

Buehrer said there was only about one car length between Augustin’s car and Mu-ghal’s car when Gubernik’s car went between them and that Augustin did not have time to avoid the collision with Mughal. However, Gubernik said that when he first noticed Mughal’s car it was ten to fifteen car lengths ahead of him; that when he started to move into the inside left lane, Mughal was about ten car lengths ahead of him and Augustin was thirteen to fifteen car lengths behind Mughal and three or four car lengths behind Gubernik. Guber-nik then saw Mughal slam on his brakes (“I saw the tires smoking and the car go into a slide”) and come into the extreme left lane forcing Gubernik off the road and onto the median. In addition Mughal testified his car was hit twice and that the time between the first impact with Gubernik and the second impact with Augustin was “close to two seconds” or “a few” seconds. Augustin said he never saw Gubernik’s gold colored car at any time. He also testified: “I didn’t see the blue station wagon until he come in front of me directly across the path of my car.”

As Gubernik moved from the center lane to the inside north-bound lane, he “had observed some construction work being done in the right-hand lane towards the Page exit and a back-up of traffic on 244.” At that time he “observed the blue station wagon more or less making a panic stop to avoid this traffic tie-up that was imminently ahead.” “All I could really see was it looked like one of these big flashing arrows pointing to the left that they put on top of a truck or something like that.” Mughal said he saw “almost a traffic block” but it was only “later on” that he saw what was blocking traffic. Buehrer saw road construction and people working on the shoulder after he had left the accident but he did not see it before the accident. Augustin said he never saw any evidence of any construction work. The accident took place one hundred to one hundred and fifty feet north of the Olive Street Road overpass. The truck with the flashing arrow was about a half mile or more north of the overpass ahead of the defendants at the time of the accident.

With respect to the two remaining defendants, plaintiffs’ two identical verdict-directing instructions hypothesized that defendants Gordon’s Transport, Inc., and Au-gustin either “failed to keep a careful lookout, or operated their automobile in the left-hand lane of traffic when they were not overtaking and passing other vehicles . . ."

Defendants Gordon’s and Augustin first contend the trial court erred in overruling their motion for a directed verdict at the close of all the evidence because the evidence was insufficient to permit a finding that these defendants were negligent in any respect. In particular, defendants submit that there was no evidence from which the jury could reasonably find that Augustin was negligent in failing to keep a careful lookout or that this alleged omission was a proximate cause of the collision (i. e. that Augustin could not have avoided the accident had he been looking). Defendants also contend the trial court erred in giving the verdict-directing instructions because the submission of failure to keep a careful lookout was not supported by substantial evidence of negligence or causation. We consider these points together.

In determining whether plaintiffs made a submissible case of negligence of failure to keep a careful lookout, we review the evidence from a favorable standpoint to plaintiffs, “giving the plaintiffs the benefit of any of defendant’s evidence favorable to plaintiffs, giving plaintiffs the benefit of all reasonable inferences from all the evidence, and [disregarding] defendant’s unfavorable evidence.” Schneider v. Finley, 553 S.W.2d 727, 729[1] (Mo.App.1977). Concerning the giving of the instructions, each element of a disjunctive verdict-directing instruction, such as these, must be supported by substantial evidence and the lack of support on any one element renders the submission erroneous. Schneider v. Finley, supra at 730[2]. In determining whether this element of failure to keep a careful lookout was so supported, we again consider the evidence favorably to plaintiff. Butler v. Hicks, 554 S.W.2d 449, 450 (Mo.App.1977). Defendants are correct when they say that in order to make a submissible case of negligence on failure to keep a careful lookout (and to give an instruction submitting the same) “not only must the alleged negligent [act] have been committed by the defendant, but also the alleged [act] must have been the proximate cause of the collision.” Schneider v. Finley, supra at 730[3].

There was much evidence in this case that Augustin was not keeping a careful lookout. He never saw Gubernik’s gold Mercedes even though it cut right in front of him. He never saw any lanes ahead clear or blocked with other vehicles, even though Gubernik and Mughal saw the slowed or stopped traffic ahead. And he did not see Mughal’s blue station wagon after it passed him until it was directly in front of him. There was also sufficient evidence that Augustin could have avoided hitting Mughal’s car (and hence plaintiffs’ car) had he been keeping a careful lookout. Gubernik said Augustin was three or four car lengths behind his car and thirteen to fifteen car lengths behind Mughal when Gubernik started moving in front of Augus-tin and Mughal slammed on his brakes. Mughal said two or “a few” seconds elapsed between the impact from Gubernik’s car and the impact from Augustin’s car. The right front fender of Augustin’s car struck the left front fender of Mughal’s car. There was evidence that Gubernik was ahead of Augustin and that he had time to veer to the left of Mughal without hitting him. From all this evidence the jury could reasonably find that had Augustin seen the traffic tie-up, Gubernik’s car cutting in front of him, or Mughal’s car slowing very quickly or moving to the left, that he could have had time to swerve off the road to the left and onto the median and avoid hitting Mughal. See, Butcher v. Main, 426 S.W.2d 356, 361[12] (Mo.1968); Schneider v. Finley, supra at 730-31[6]. Because plaintiffs made a submissible case on this ground of negligence, the trial court properly overruled defendants’ motion for a directed verdict. Boyle v. Colonial Life Insurance Company of America, 525 S.W.2d 811, 815[7] (Mo.App.1975); Bowers v. Columbia Terminals Co., 213 S.W.2d 663, 667[2] (Mo.App.1948). We do not at this point discuss plaintiffs’ second theory of negligence, which is that Augustin was driving in the left-hand lane when not overtaking and passing other vehicles. The verdict-directing instructions were not improperly given on the theory that the element of failure to keep a careful lookout was not supported by substantial evidence.

The other issue in this case is whether the same instructions were improperly given either on the theory that the element of driving in the extreme left-hand lane of traffic when not overtaking and passing other vehicles was an incomplete submission of the findings necessary for a jury to hold that these defendants were negligent in this respect or on the theory that this element of the verdict directors was not supported by substantial evidence.

The “rules of the road” applicable (§ 304.-014 et seq. RSMo. 1969) are in words and figures as follows.

§ 304.015(2) RSMo. 1969:

“2. Upon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
(2) When placing a vehicle in position for and when such vehicle is lawfully making a left turn in compliance with the provisions of sections 304.014 to 304.026 or traffic regulations thereunder or of municipalities;
(3) When the right half of a roadway is closed to traffic while under construction or repair;
(4) Upon a roadway designated by local ordinance as a one-way street and marked or signed for one-way traffic.”

§ 304.015(4) RSMo. 1969:

“4. The authorities in charge of any highway or the state highway patrol may erect signs temporarily designating lanes to be used by traffic moving in a particular direction, regardless of the center line of the highway, and all members of the Missouri highway patrol and other peace officers may direct traffic in conformance with such signs. When authorized signs have been erected designating off-center traffic lanes, no person shall disobey the instructions given by such signs.”

§ 304.015(6) Supp. 1971:

“6. All vehicles in motion upon a highway having two or more lanes of traffic proceeding in the same direction shall be driven in the right-hand lane except when overtaking and passing another vehicle or when preparing to make a proper left turn or when otherwise directed by traffic markings, signs or signals.”

Defendants submit that this element of the instructions should have submitted not only the exception of overtaking and passing other vehicles, but also the exceptions listed in § 304.015(2)(3) (right half of roadway closed while under construction or repair) and § 304.015(4) (signs erected by proper authorities) because of the road work and the truck with the flashing arrow. But the evidence shows that Augustin had been driving in the inside left lane south of the Olive Street Road overpass when Mu-ghal passed him on his right; that the construction and sign were a half mile or more north of the Olive Street Road overpass; that this overpass is the first point from which the construction and sign were visible; that the accident occurred just one hundred to one hundred and fifty feet north of this overpass; and that Augustin, by his own admission, never saw any construction work. These exceptions were inapplicable and the trial court did not err in not including them in this element of the .instructions. Cf. Rooney v. Lloyd Metal Products Company, 458 S.W.2d 561, 568 (Mo.1970); Miles v. Gaddy, 357 S.W.2d 897, 901-2 (Mo.banc 1962).

Although not raised by the parties, we believe some reference should be made to a rule of law applicable to vehicles on divided highways before the enactment of § 304.015(6), Supp.1971, supra. We refer to the precept enunciated in Witherspoon v. Guttierez, 327 S.W.2d 874, 878 (Mo.1959). “Vehicles traveling upon a double-lane, one-way highway ordinarily have a right to use either half of the double lane.” (Followed in Gaynor v. Horwitz, 464 S.W.2d 537, 538[3] (Mo.App.1971)). This statement of the law was based upon the then-effective statute § 304.020, Laws 1953, p. 587. In 1971, by amendment (Supp.1971), this “rule of the road” was changed in part and incorporated in § 304.015(2) as it appears above. Subsection 6, supra, was then added and specifically required vehicles on divided highways to be driven in the right-hand lane with certain exceptions noted. Violation of this traffic regulation under certain circumstances may be negligence per se. Regulations, such as this, however, are not unyielding and inflexible and are not to be applied rigidly, absolutely and peremptorily without regard to circumstances or conditions there existing. Duties imposed by some of the “rules of the road” may be qualified by circumstances, such as considerations of safety, emergency conditions or impossibility. Deviation from the statutory standard in such circumstances will not be considered negligence per se. Lincoln v. Railway Express Agency, Inc., 359 S.W.2d 759, 765[5] (Mo.1962).

Here there was evidence that Augustin violated § 304.015(6) Supp.1971, by driving in the extreme left lane at a time when he was not passing another vehicle and at a slower rate of speed than either Mughal or Gubernik, both of whom passed Augustin on his right. The verdict-directing instructions, in simple terms following the statute, required the jury to find not only that Augustin violated this statute but that this violation constituted negligence. Defendant’s contention that there was insufficient evidence upon which to submit his failure to drive in the right-hand lane is denied.

Defendants further contend that even if Augustin was negligent in violating the statute, there was no evidence to show that this negligence was a proximate cause of the collision. The general principles applicable to this question are set forth in the often quoted case of Floyd v. St. Louis Public Service Company, 280 S.W.2d 74, 78[8-10] (Mo.1955) as follows: “Generally, it is sufficient to constitute proximate cause that the negligence charged was the effi-dent cause which set in motion the chain of circumstances leading up to the injury. The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequences of the act or omission of the defendant. The negligence of the defendant need not be the sole cause of the injury. It is sufficient that it be one of the efficient causes thereof, without which the injury would not have resulted. A party is held liable if his negligence, combined with the negligence of others, results in injury to another.” It is reasonable to infer from the evidence that by traveling in the inner left lane more slowly than Mughal and Gubernik, Augustin not only caused those drivers to pass him on his right but he also caused Gubernik to follow a path which brought him into collision with the rear of Mughal’s car, thereby causing Mughal to enter the lane in front of Augus-tin. In other words it is reasonable to infer that if Augustin had been driving in the right-hand lane in obedience to the statute and out of the way of faster moving traffic the accident would not have occurred. Driving in the left lane under the facts presented here could be found to constitute the proximate cause which set in motion the chain of circumstances leading up to the injuries of the plaintiffs. Thebeau v. Thebeau, 324 S.W.2d 674, 678 (Mo.banc 1959).

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.


text:
    Reita Leone MICHALSKI, Appellant, v. James Jerome MICHALSKI, Respondent.
    No. 39145.
    Missouri Court of Appeals, St. Louis District.
    Dec. 5, 1978.
    Gordon F. Webb, Clayton, for appellant.
    Charles E. Roth, Clayton, for respondent.
   PER CURIAM.

This is the second appeal of this child custody modification case. The first appeal resulted in dismissal of the appeal as being based on an interlocutory, nonappealable order. In re Marriage of Michalski, 542 S.W.2d 96 (Mo.App.1976). The facts are fully recited in the first case and need not be repeated here.

On remand and after hearing, the trial court rendered an order entitled “Findings of Fact, Conclusions of Law, Judgment and Decree” in which it expressed its displeasure at having the cause remanded back to it. In its order the trial court complains of having been placed in the difficult position of having to make a decision in a difficult case and berates this court for an “Ivory Towered” attitude in not making the decision for the trial court, implying that we have shirked our responsibilities in refusing to exercise jurisdiction which we obviously do not have. While we are flattered that the trial court believes we have the ability to solve problems beyond its capacity, we are, after all, only an appellate court. As such, it is our duty to review cases properly before us to determine whether error has been committed. We do not perceive our function, nor do we believe the trial bench generally perceives our function, to be that of an adviser or surrogate to trial judges with difficult decisions to make. Our respect for the trial judges of this State is too great to indulge in such notions.

But, alas, the trial court here has again either overlooked, misunderstood or ignored the direct and clear edict of the first Michalski appeal, which said in plain language:

“We hold that the order is not an ap-pealable one. The order is a declaration of the action which the trial court intended to take upon the occurrence of one of several contingencies transpiring in the future and of necessity would require a further order when the particular contingency transpired. The general principle is that a judgment must be sufficiently fixed and certain in its terms to be susceptible of the enforcement in a manner provided by law and after thirty days becomes fixed and beyond the reach of the trial court to change, amend or modify.” In re Marriage of Michalski, id at 99.

After denying child support for the children, the trial court in its order on remand, concludes with a declaration of action which it intends to take upon the occurrence of at least two contingencies transpiring in the future and requiring further order on the happening of the contingencies. The trial court’s order is clearly an interlocutory, nonappealable order. In re Marriage of Michalski, supra.

Appeal dismissed.

All judges concur.

      . The trial court’s order reads:
      “The parties appeared before the Court and the only additional evidence offered to the Court was the deposition of the mother of the children taken in Canada. The father of the children was not represented at the deposition. The record does not disclose many additional facts but the lawyers and the parties have ‘advised’ the Court of and the Court believes these additional facts to be true.
      At the outset the parties chose to accept the order of this Court as a final order. The father of the children had custody of all three of the minor children here in St. Louis County. In accordance with the Court’s order, he sent the children to visit their mother in Canada for the summer. In compliance with the Court’s order the mother had deposited a bond to guarantee the return of the children. The mother of the children refused to return the two youngest children at the end of the summer and the father has not seen these two children.
      The Missouri Court of Appeals, St. Louis District, which refused to address itself to any of the issues raised by the parties, or to try to solve any of the family’s real life problems, places the trial court in a position of having to make an impossible decision. The appellate court dismissing the appeal for failure to appeal from a final order is an Ivory Towered approach to deciding a case and yet at the same time making no decision on the issues raised.
      This Court could find that the best interest of the children would be with their natural father here in Missouri. Because the children are in Canada and no United States judge has any power to enforce his orders outside the continental limits of the United States this would be a useless order. This is particularly true when the mother of the children has refused, to this point, to permit visitation or temporary custody of the two youngest children with their father.

        The other horn of the impossibility is that the Court could grant the custody of the children to the natural mother, but in doing this, the Court would be condoning a deliberate act of the natural mother in refusing to return the children or to permit the natural father to have custody.
      If the trial judge has no ‘practical’ way to enforce his orders relating to the welfare of the children, why should he write an order?
      A bond, or waiver of extradition upon capias of the trial judge, are about the only two alternatives available to a trial court.
      The Court previously found that both the natural parents were conscientious, capable parents. There can be no greater frustration for a parent who is sincere to be deprived of the love, the companionship, and the physical presence of his or her children. The appellate court seems to be reluctant to address this issue.
      This Court will grant custody of the oldest child, James Jeffrey Michalski, to the natural father. This Court will grant custody of the two youngest children, Felicia Louise Michalski and David Joseph Michalski, to the natural mother.
      This Court believes the law to be that there is no absolute duty on the part of the natural father to support the children. The new law makes it his primary responsibility. This Court will order no support money payments by either of the natural parents for children in the custody of the other parent. Costs to Petitioner.
      This order will remain in effect until the natural mother presents herself to this Court and presents to the Court a plan whereby the children of the parties can have the companionship of each other and the companionship of their natural parents at which time the Court may order child support payments. This Court is not vindicative, or so imbued with the power of its office that it is trying to get the parties to return to the jurisdiction with contempt proceedings in mind, but this Court sincerely feels that brothers and sisters should have the opportunity for companionship and children should have the companionship of both their parents and vice versa.”


author: CRIST, Judge.

text:
    Frank D. GARDNER and Lenore M. Gardner, Respondents, v. Patrick CALLAHAN and Helen Callahan, Appellants.
    No. 39789.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 5, 1978.
    Joseph E. Furtaw, Clinton Almond, Hills-boro, for appellants.
    Dana A. Hoekensmith, Hillsboro, for respondents.
   CRIST, Judge.

In this court tried suit for specific performance of a contract for sale of a mobile home, the trial court found that plaintiffs had paid for the mobile home and ordered defendants to execute and deliver any and all documents necessary to vest title of the mobile home in plaintiffs.

We hold that the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

No error of law appears, and we have determined that an opinion would have no precedential value.

The judgment is affirmed in compliance with Rule 84.16(b).

ROBERT G. DOWD, P. J., and ALDEN A. STOCKARD, Special Judge, concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Douglas E. MOORE, Appellant.
    No. KCD 29117.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.

      Mark D. Johnson, Platte City, for appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Did the trial court err by refusing to grant a mistrial because of a question put by the state, even though it went unanswered? Did the trial court err by refusing to give an “accomplice” instruction offered by defendant which differed from MAI-CR 2.01? Did the trial court err by failing to give a manslaughter instruction in a felony murder case? These questions arise by way of points on appeal in a jury tried case resulting in defendant’s conviction of first degree murder (felony-murder — attempted robbery), Section 559.010, RSMo 1969, and imposition of a life sentence.

On the basis of the evidence presented, the jury which tried defendant was justified in finding beyond a reasonable doubt that on January 9,1975, defendant and four companions shot and killed the proprietor of the Kentucky Liquor Store, 31st and Benton, Kansas City, Missouri, during the attempted perpetration of a robbery. Defendant’s trial commenced on May 10, 1976, and concluded on May 12, 1976. Later on, the importance of the dates which have been underlined will become self-evident.

Review of the three points raised on appeal is clouded at the very outset by the fact that defendant’s motion for a new trial was untimely filed. Although a guilty verdict was returned by the jury on May 12, 1976, and defendant was granted an extra twenty days in addition to the ten days prescribed by Rule 27.20(a) within which to file his motion for a new trial, the same was never filed until June 14, 1976, some three days late. With a pattern of consistency that bespeaks of a firm commitment, untimely filed motions for new trial are held to be nullities, and, so construed, preserve nothing for appellate review. State v. Collett, 542 S.W.2d 783, 785 (Mo. banc 1976); State v. White, 439 S.W.2d 752, 753 (Mo.1969); State v. Olinger, 396 S.W.2d 617, 621 (Mo.1965); and State v. Hamilton, 391 S.W.2d 872 (Mo.1965).

Defendant’s only hope for salvaging the three points for appellate review is to bring them under the benevolent auspices of the “plain error” provisions of Rule 27.20(c). Defendant faces a formidable task as there is no such thing as “plain error” per se within the meaning ascribed to the term by Rule 27.20(c). The “bench mark” of “plain error” — error which works a “manifest injustice or miscarriage of justice” (Rule 27.20(c)) — is not easily discernible. Even the most flagrant, undisputed examples of error are not necessarily subject to being characterized as “plain error” within the meaning of Rule 27.20(c). Thus, no talismanic method exists for determining “plain error”. In fact, “plain error” is such a highly elusive term that it does not readily lend itself to being succinctly defined or isolated by the use of judicial platitudes. As a practical matter, the existence or nonexistence of “plain error” demands review on a case to case basis to determine whether “manifest injustice or miscarriage of justice” has resulted in any given case. State v. Patterson, 443 S.W.2d 104, 107 (Mo. banc 1969). The three issues raised by defendant on appeal will be discussed, in order, in the context just mentioned.

Defendant’s first point focuses on the following question, which went unanswered, but which was asked of one of defendant’s witnesses by the state on cross-examination: “Is it not true that you are currently being represented by the Jackson County Public Defender?” Before the witness had time to answer, defense counsel objected to the question, and asked for a mistrial. The objection was sustained but the request for a mistrial was denied. By reason of the fact that defendant was also represented by the Jackson County Public Defender’s Office, he adroitly mixes sweeping constitutional principles with certain strained conclusions and syllogizes that the unanswered question, from his standpoint, worked a “manifest injustice or miscarriage of justice”. This court would have to resort to judicial prestidigitation to place this unanswered question in the ranks of “plain error”. The idea that it worked a “manifest injustice or miscarriage of justice” defies credulity. An honest sense of outrage on the part of defense counsel permeates defendant’s first point by reason of the following circumstance. The assistant prosecuting attorney who handled this trial for the state also represented the state at a previous trial afforded defendant on the same charge which resulted in a “hung jury”. During the previous trial the same controversial question was the subject of a “protective order” and that state was prohibited from asking it on cross-examination. Although the present conduct of the state, in view of what transpired at the previous trial, is not to be condoned, it cannot substitute for the requisite finding of “plain error” necessary to entertain defendant’s first point on appeal.

Defendant’s second point is directed toward the trial court’s refusal to give a requested “accomplice” instruction, the thrust of which was that the jury should receive the uncorroborated testimony of an accomplice with great caution. This instruction was innovative in the sense that it was strictly the handiwork of defense counsel and a total stranger to MAI-CR. It was in the nature of a cautionary instruction on the believability of a particular witness or class of witnesses and, as such, expressly forbidden by paragraph 2 of the “Notes on Use” appended to MAI-CR 2.01 “Duties of Judge and Jury”: “Except as may be specifically provided for elsewhere in MAI-CR, no other or additional instruction may be given on the believability of witnesses, or the effect, weight or value of their testimony. Without limiting the foregoing, no instruction may be given to the effect . that the testimony of any one witness or class of witnesses, when uncorroborated, must be received with great caution or must be weighed any differently than that of other witnesses.” MAI-CR 2.01 was read to the jury in this case at the appropriate time. As refusal of the cautionary instruction requested by defendant would not have constituted error if properly preserved, it would be the height of judicial inconsistency to succumb to defendant’s suggestion that its refusal worked a “manifest injustice or miscarriage of justice” and entitled it to be reviewed as “plain error” under Rule 27.20(c).

Defendant’s final point charges the trial court with error for failing to submit manslaughter to the jury in this first degree murder (felony-murder — attempted robbery) case involving a homicide which occurred on January 9, 1975, and which went to trial on May 10, 1976. Failure to instruct a jury on the “law of the case” may be reviewable as “plain error” under Rule 27.20(c) if a “manifest injustice or miscarriage of justice” results. State v. Auger, 434 S.W.2d 1, 4 (Mo.1968); and State v. Johnson, 559 S.W.2d 756, 758 (Mo.App.1977).

An obsession with chronology is unavoidable when addressing defendant’s final point because of the metamorphic nature of instructing juries in homicide cases as reflected by the “Notes on Use” appended to MAI-CR 6.02 Murder: First Degree (Conventional), effective March 1,1975, and the “Notes on Use” appended to MAI-CR 6.02 Capital Murder, effective September 28, 1975. To support his third and final point defendant relies upon paragraph 4.C.2. of the “Notes on Use” appended to MAI-CR 6.02 Capital Murder, effective September 28, 1975, to wit: “The court must give an instruction on manslaughter (MAI-CR 6.08) in all cases where any higher homicide offense, conventional or felony-murder, is submitted to the jury. This follows from the nature of manslaughter. State v. Williams, 442 S.W.2d 61 (Mo. banc 1968), modified in one respect by State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971), and extended by State v. Stapleton, supra. [518 S.W.2d 292 (Mo. banc 1975)] . . . Defendant reasons that since the September 28, 1975, revisions to MAI-CR 6.02 and the “Notes on Use” appended thereto were in effect at the time of his trial which began on May 10, 1976, and culminated in a guilty verdict on May 12,1976, paragraph 4.c.2. of the “Notes on Use” was a positive and unequivocal mandate to the trial court to submit manslaughter to the jury via MAI-CR 6.08. Defendant’s reasoning is beset with a glaring fallacy. The following “NOTE” is appended to MAI-CR 6.02 Capital Murder, effective September 28, 1975: “Refer to Instruction 6.02 Murder: First Degree on page 6-3, of this book, regarding murder submissions involving occurrences before September 28, 1975.” (Emphasis added.) This “NOTE” is taken at face value and it is assumed that it means what it says. Thus, the date of the occurrence rather than the date of the trial assumes paramount and controlling importance regarding homicides occurring before September 28,1975. Caveat a. appended to the “Notes on Use” in conjunction with MAI-CR 6.02 Murder: First Degree, effective March 1, 1975, provides, in part, as follows: “Where felony-murder either in the first or second degree is the only murder submitted (that is, when conventional murder under MAI-CR 6.02 or 6.06 is not submitted) the above rules will not be applied, so that lesser offense instructions will not be given automatically. Ordinarily, where there is sufficient evidence to warrant the giving of a felony-murder instruction, there will be no evidence to support the submission of a lesser offense. Under such circumstances only felony-murder will be submitted. See the following cases and those cited therein: State v. Hopper, 71 Mo. 425 (1880); State v. Nasello, 325 Mo. 442, 30 S.W.2d 132 (1930); State v. Kauffman, 335 Mo. 611, 73 S.W.2d 217 (1934); State v. Taylor, 421 S.W.2d 310 (Mo.1967); State v. Glenn, 429 S.W.2d 225 (Mo. banc 1968); State v. Thomas, 440 S.W.2d 467 (Mo.1969). . . . But in the absence of evidence to justify it a lesser offense instruction should not be given where felony-murder alone is submitted. State v. Ford, 495 S.W.2d 408 (Mo. banc 1973).” The trial court apparently felt compelled to adhere to the foregoing admonition since the homicide in question occurred before September 28,1975, and there was not one iota of evidence that it occurred other than during an attempt to perpetrate a robbery. A confluence of evidence and substantive law, comporting with Caveat a., supra, left the trial court without any viable option as to whether or not manslaughter should be submitted to the jury. As there was no evidence that the homicide occurred other than during an attempt to perpetrate a robbery, then it inexorably followed that there was no evidence to support a submission of manslaughter. As pungently stated in State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 343 (banc 1956), cert. denied, 352 U.S. 976, 77 S.Ct. 367, 1 L.Ed.2d 326 (1957), and illustrative of the rationale undergirding Caveat a., supra, “[o]n the facts - shown the jury could be authorized to find only one of two verdicts, namely, a conviction of murder in the first degree, or an acquittal.” In State v. Tyler, 556 S.W.2d 473, 475 (Mo.App.1977), involving a homicide occurring prior to September 28,1975, and submitted to the jury solely on felony-murder, Caveat a., supra, was relied upon to absolve the trial court of error for not giving a requested manslaughter instruction. Chronology dictates the same result in the instant case and any inclination to probe into substantive principles of law surrounding the giving or non-giving of manslaughter instructions in homicide cases is effectively suppressed by reason of the mandatory status of the “Notes on Use” appended to the respective MAI-CR instructions. A fundamental maxim, patent as it may be, is risked — that which is not error, even though properly preserved for appellate review, can never rise to “plain error” for purposes of review under Rule 27.20(c).

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Ozell WEST, Appellant.
    No. KCD 29701.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

In this bench tried case the judge found defendant guilty of murder in the second degree (Section 559.020, RSMo 1969) and sentenced him to thirty years imprisonment.

The sole point relied on by defendant on appeal is cast in the following language: “The trial court erred in failing to acquit appellant of the crime charged by reason of mental disease or defect excluding responsibility insofar as appellant proved by a preponderance or greater weight of the credible evidence that he was suffering from such a mental disease or defect at the time he shot Hercules Purtty.” Stripped of all excess verbiage, and after certain syntactic restructuring, this point simply charges that the verdict returned by the trial court was against the weight of the evidence with respect to defendant’s interposed defense of mental disease or defect excluding responsibility.

Before addressing defendant’s single point, a highly abbreviated synopsis of the facts is both adequate and appropriate as defendant has not challenged the sufficiency of the evidence to sustain his conviction. On the morning of November 23, 1975, following a party the preceding night at defendant’s apartment in Kansas City, Missouri, the deceased, while in the process of leaving, was fatally shot in the back of the head by defendant with a .12 gauge shotgun.

Returning to defendant’s single point on appeal, defendant timely and properly interposed the defense of mental disease or defect excluding responsibility (Section 552.030, RSMo 1969). In support thereof he called a psychiatrist as one of his trial witnesses to testify as a medical expert on his behalf. Suffice it to say, the psychiatrist testified that in his opinion defendant was suffering from a mental disease when the homicide in question was committed. The state offered no contradictory or countervailing expert medical testimony, and therein lies the crux of defendant’s single point of error on appeal.

In pressing his point on appeal defendant studiously avoids the cold, authoritative reality of certain portions of Section 552.030.-7, RSMo 1969: “All persons are presumed to be free of mental disease or defect excluding responsibility for their conduct, whether or not previously adjudicated in this or any other state to be or to have been insane, drunkards, drug addicts, sexual or social psychopaths, or otherwise mentally ill, incompetent, deranged or impaired. The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility. But in the absence of such evidence the presumption shall be conclusive. Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take that issue to the jury. . . . ” (Emphasis added.) Even before the enactment (Laws 1963) of Section 552.030.7, supra, the Supreme Court held in State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751, 752-53 (banc 1953), that notwithstanding the absence of contradictory or countervailing expert medical testimony, opinion evidence by an accused’s own expert medical witnesses as to his insanity was not conclusive but merely entitled to such weight as the trier of fact concluded it should be given. In a sense, statutory enactment of the emphasized portions of Section 552.030.7, supra, may be said to be a codification of the then existing common law rule. Since the enactment of Section 552.030.7, supra, the relatively few cases addressing this issue have consistently pointed out that even in the face of substantial expert medical evidence that the accused was suffering from a mental disease or defect excluding responsibility at the time the crime was committed, and absent contradictory or countervailing expert medical evidence offered by the state, the statutory presumption of sanity remained in the case and carried the issue of mental disease or defect excluding responsibility to the trier of fact for resolution. State v. Greenhaw, 553 S.W.2d 318, 322-23 (Mo.App.1977); and State v. King, 526 S.W.2d 58, 59 (Mo.App.1975). The emphasized portions of Section 552.030.7, supra, and the cited cases preceding and succeeding its enactment are true to the long accepted principle that the credibility of witnesses and the weight of their testimony are within the decisional domain of the trier of fact and are not subject to review on appeal. State v. Wright, 476 S.W.2d 581, 584 (Mo.1972); State v. Small, 423 S.W.2d 750, 751 (Mo.1968), and State v. Tschirner, 504 S.W.2d 302, 308 (Mo.App.1973). Whether the trier of fact be court or jury is immaterial insofar as assessing credibility and weight is concerned. State v. Simmons, 494 S.W.2d 302, 303 (Mo.1973), and State v. Holmes, 439 S.W.2d 518, 521 (Mo.1969).

Defendant’s single point, being totally devoid of merit, is ruled against him.

Judgment affirmed.

All concur.