author: JONES, Justice. REED, Chief Justice LUKOWSKY, Justice

text:
    M & T CHEMICALS, INC., Appellant, v. Donald Lee WESTRICK, by Joyce Westrick, his mother and next friend, Appellee. Johnny N. DAVIS, Appellant, v. Donald Lee WESTRICK, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1974.
    As Modified on Denial of Rehearing June 20, 1975.
    William Mellor, Mellor & Shaw, Louisville, for appellant M & T Chemicals.
    Andrew J. Russell and William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, John G. Wright, Warsaw, for appellant Johnny N. Davis.
    Robin Griffin, Miller, Griffin & Marks, Lexington, W. A. Wickliffe, Harrodsburg, for appellee.
   JONES, Justice.

On December 6, 1969, Donald Lee West-rick, age S, had a foot severed by the explosion of a metal drum. His mother, Joyce Westrick, filed an action against M & T Chemicals, Inc.; Johnny N. Davis, d/b/a Tip-Top Sanitation; and Charles Ryan, owner and operator of a mobile home park. The jury returned a verdict for $76,111.00 against M & T; and $38,-055.50 each against Davis and Ryan. In addition, M & T was awarded judgment for $76,111.00 against Davis by way of indemnity. M & T and Davis appeal from the judgment on the verdict entered against them. Davis appeals also from the judgment awarding indemnity to M & T on the basis of an alleged indemnity agreement. These appeals have been consolidated and considered together. Ryan satisfied the judgment against him and is not a party to this appeal.

M & T and Davis both insist that they were entitled to directed verdicts. To determine if this is so, it is necessary to consider certain pertinent facts.

M & T manufactures industrial chemicals and coatings. The products are placed in steel and fiber drums of various sizes and stored in several places throughout M & T’s plant. For several years prior to the accident, Davis contracted annually with M & T for the removal and disposition of trash and waste materials from M & T’s plant. M & T’s used drums generally were sold for reclaiming but occasionally they were thrown in the trash to be hauled by Davis.

After getting trash at M & T, Davis placed it on his private dump. Several times a week he crushed and bulldozed the trash into the ground.

On the date of the accident, Wilbur Horner, Bobby Gene McDole and Loren Lee Anderson trespassed on Davis’ lot and took three sealed drums. Horner, a part-time employee of Ryan, testified that he intended to use the drums as trash receptacles at Ryan’s trailer park, where young Westrick lived with his mother. Horner, McDole and Anderson took the drums to Ryan’s trailer park two or three miles from Davis’ lot. The drums originally contained a dirty solvent which was not inherently dangerous, but the application of heat or fire to a sealed drum containing the residue of solvent made it flammable and dangerous. The words “Dirty Solvent” were stenciled on the drum that exploded.

Horner, McDole and Anderson decided to use an aceylene torch to remove the tops from the drums. Although it was obvious to them that the drums had contained some kind of industrial liquid, they made no effort to flush the drums or otherwise to guard against the possibility of there being explosive or inflammable liquid or gas in the drums.

McDole and Anderson testified that they knew children were playing in the area. They had seen the children in the back of the trailer park while they were removing the tops from the drums. Horn-er, using the torch, cut the top from one drum. Nothing happened. The top of the second drum was partly cut off, again with no problem. Anderson then undertook to cut the top from the third drum, and it exploded. The top of that drum hit Donald Westrick, who was standing a few feet away.

A fundamental principle of negligence is that there is no liability without fault. Every person owes a duty to every other person to exercise ordinary care in his activities to prevent any foreseeable injury from occurring to such other person.

“Actionable negligence consists of a duty, a violation thereof, and consequent injury. The absence of any one of the three elements is fatal to the claim.” Illinois Central Railroad v. Vincent, Ky., 412 S.W.2d 874 (1967). Applying these standards militates against a finding of liability against either M & T or Davis. We are of the opinion that nothing done or omitted to be done by M & T or Davis reasonably could have been foreseen as a cause of injury to any third party, and therefore they are not chargeable with any violation of duty. The case presents a situation where third parties who were knowledgeable of the danger and risk caused the harm by their intentional conduct. In our view the law shifts the responsibility for the harm suffered by Donald Lee Westrick to the intentional actors in the factual pattern presented by this case.

The trial court should have sustained the motions of M & T and Davis for directed verdicts. When he failed to do so he should have sustained each of their motions for judgment n. d. v.

The judgments against M & T and Davis are reversed with directions that the judgments against M & T and Davis be set aside and judgments n. o. v. entered dismissing the claims against them.

JONES, PALMORE, STEPHENSON and STERNBERG, JJ., concur.

REED, C. J., filed an opinion dissenting in part in which CLAYTON, J., joined. LUKOWSKY, J., dissents in separate opinion.

REED, Chief Justice

(dissenting in part).

I dissent from that part of the opinion which holds that Johnny N. Davis, d/b/a Tip-Top sanitation, was entitled to a verdict and a judgment n. o. v. In my opinion the question of the liability of Davis was a jury issue.

Section 449 of the Restatement of the Law of Torts 2d, page 482, declares:

“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.”

The majority opinion recites that actionable negligence consists of a duty, a violation thereof, and consequent injury. This simplistic definition is sound enough so far as it goes, but in the present case the concept of negligence, in my view, is better defined as conduct involving an unreasonable risk of harm; the test for assessing whether a risk is unreasonable involves determination of the amount of caution demanded of the actor, and this is a resultant of three elements: the likelihood that the conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which must be sacrificed to avoid the risk. See Harper and James, The Law of Torts, Vol. 2, 929.

Although liability for negligence is not based on engaging in dangerous but lawful activities, their dangerous character may call for greater precautions, while on the other hand their value to society may call for less onerous precautions, ibid. 934.

So far as M & T Chemicals, Inc., is concerned, in order to subject it to liability it would be necessary to find that, although it observed precautions for the disposition of the drums containing the potentially explosive and inflammable material on most occasions and warned those with whom it came in contact concerning the disposition of the drums to the extent of requiring indemnity from them, it would still be subject to liability by reason of the negligence of the dump keeper in failing to protect the drums which came into his possession contrary to the instructions of M & T where a third party off the premises of the dump keeper was injured by the after-occurring negligent conduct of the scavengers from the dump. In my view, this course of events “broke the chain” so far as persons within the foreseeable area of hazard were concerned with respect to M & T’s conduct.

The situation of Davis, however, is quite another matter. Davis had been advised and was fully cognizant that he was possessing and storing a dangerous substance. A jury could believe from the evidence in this case that he knew people were pilfering items from his premises and that these items contained dangerous substances that would injure others and would injure them seriously under foreseeable conditions. The evidence was in conflict concerning the knowledge of the scavengers as to the dangerous potential of the substance with which they dealt and the conduct in which they engaged.

When the element of foreseeability by Davis is considered, reasonable men could conclude that the likelihood of harm was sufficiently foreseeable to warrant the imposition of liability although the average person would not have foreseen the particular method by which the injury occurred.

The majority opinion stands for two propositions that to me are seriously questionable. The first is that the scope of duty must be measured after the event by the particular method that occurred to cause the harm. The second is that regardless of the standard of conduct imposed by the possession of things more than ordinarily dangerous, the last responsible actor only should be held liable and his conduct insulate the immediately prior negligent actor from liability. This is not to say that under the circumstances a jury in assessing the element of foreseeability could not have exonerated Davis. I do believe, however, that the evaluation should have been made by the jury and not by means of judicial fiat.

Therefore, I respectfully dissent to so much of the opinion as exonerates Davis as a matter of law.

CLAYTON, J., joins in this dissent.

LUKOWSKY, Justice

(dissenting).

I join with the Chief Justice in the views which he expressed as to the liability of Johnny N. Davis, d/b/a Tip-Top Sanitation.

The web of liability woven by the Chief Justice from the threads of “unreasonable risk of harm” and “foreseeability of injury” is both large enough and strong enough to enmesh and hold M & T Chemicals, Inc.

A reasonable fact finder has a right to believe that an ordinarily prudent manufacturer who must dispose of “potentially explosive and inflammable material” would exercise a degree of care for the protection of the public in excess of the general warning and requirement of an indemnity agreement observed here.

The standard of care escalates in at least direct proportion to the risk of harm. The value of M & T’s contribution to society would not be significantly impaired by a requirement that these potential bombs be accurately segegrated by its employees or even kept under lock and key in an ammunition dump.

The trial court properly submitted the whole case to the jury. It returned its verdict. I would affirm the judgment entered on that verdict in its entirety.


source: Caselaw Access Project

author: REED, Chief Justice.

license: Public Domain

text:
    James R. YOCOM, Commissioner of Labor, etc., Appellant, v. Mark Allen GIBBS et al., Appellees.
    No. 74-894.
    Court of Appeals of Kentucky.
    Feb. 21, 1975.
    Thomas L. Ferreri, Dept, of Labor, Louisville, for appellant.

      J. David Borders, Buel L. Cox, Louisville, for Mark Allen Gibbs.
    Stuart E. Alexander, Louisville, for Jewish Hospital.
   REED, Chief Justice.

The 1972 General Assembly amended KRS 342.120. The amendment was effective January 1, 1973. In June, 1973, Mark Allen Gibbs injured his back in a work-connected accident. When he filed his claim for compensation, the Special Fund was made a party because there was evidence that at the time of his injury he had a dormant condition, spondylolisthesis, which might have been aroused into disabling reality by reason of the subsequent injury.

From conflicting medical evidence, the board found that Gibbs had sustained 20% permanent partial disability, one-half of which was attributable to arousal of dormant spondylolisthesis. The board determined that Gibbs’ employer should bear responsibility for payment of 10% permanent partial disability and that the Special Fund should bear ultimate responsibility for 10% permanent partial disability.

The Fund appealed to the circuit court, where it claimed that the employer should be responsible for payment of the entire award. The circuit court upheld the board’s decision. Thereupon, the Fund appealed to this court. In the context of the facts presented, we agree with the judgment of the circuit court.

The Fund seeks our interpretation of the significance of the legislature’s amendment of KRS 342.120, the statute specifying the circumstances necessary for the apportion-ability of ultimate liability for the payment of an award between the employer and the Fund.

Prior to the 1972 amendment, KRS 342.-120(1) (b), concerning one situation of ap-portionable liability, read: “The employee is found to have a dormant nondisabling disease condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury by accident or an occupational disease.” KRS 342.120(4) also read in pertinent part: “The remaining compensation for which such resulting condition would entitle the employe, including any compensation for disability resulting from a dormant disease aroused into disabling reality by the injury or occupational disease, . . (italics supplied).

The 1972 amendment made the following changes in language and KRS 342.-120(1)(b) now reads: “The employe is found to have a dormant nondisabling disease or condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury by accident or an occupational disease.” KRS 342.120(4) now reads: “The remaining compensation for which such resulting condition would entitle the employe, including any compensation for disability resulting from a dormant disease or condition aroused into disabling reality by the injury or occupational disease, . . .” (italics supplied).

Prior to the amendment, this court read the words “disease condition” to mean a condition caused by disease. It also construed this statutory term “disease” to have been used in its ordinary and usual meaning rather than in a technical and scientific sense. Thus, Young v. City Bus Company, Ky., 450 S.W.2d 510 (1970), declared that a degenerative intervertebral disc was not in itself a disease condition for which the Fund was liable. In Appalachian Regional Hospitals, Inc, v. Brown, Ky., 463 S.W.2d 323 (1971), the court expressly held that spondylolisthesis was not a “disease condition” within the statutory expression and that the Fund was not responsible for compensation due by reason of the presence of that condition.

The court reasoned in these cases that subsequent injury claim funds existed primarily for the encouragement of employment of obviously handicapped workers and that the concept of allowing the employer to pass off partial responsibility to a fund composed of the contributions of all employers where the obviously handicapped worker suffered a work-connected injury was sufficiently strained by the imposition of partial responsibility on the pool fund for arousal of dormant “diseases” that it must have been the intent of the legislature not to further expand the right of the employer to pass off his liability where the injured worker’s condition was a mere unobservable deviation from the norm, or was a natural aging process. In such instances, the worker was not penalized because the employer was responsible for the entire award. Influenced by these general principles, which are common to most workmen’s compensation laws in the nation, and by the express statutory language, we construed “disease condition” to exclude spondylolisthesis, a congenital condition of the spine which often lies dormant and nondisabling until aroused by injury or by activity.

The Fund in its excellent and exhaustive brief makes persuasive argument that it should not bear financial responsibility in this instance. It asserts that the change in language effected by the 1972 amendment will probably have disastrous financial consequences so far as its solvency is concerned. It also argues the inconsistency with general principles of workmen’s compensation acts created by allowing the individual employer to transfer liability under many conceivable situations where the social policy of the act would require the employer to bear the loss. The Fund urges that we rewrite the amendment by substituting “and” for “or” in the phrase “disease or condition.”

We feel bound to regard these arguments and assertions as relevant only to the wisdom of the legislative change and to the inadvisability of the policy effected by the amendment. These matters are not for the determination of the courts, particularly where the legislature, chargeable with full knowledge of an existing construction of statutory language, deliberately changes that language and thereby legislates in a field which is within its constitutionally protected province. We are therefore bound to effectuate the clearly expressed legislative will.

We need not explore in this case the construction of the use of the unqualified word “condition” as it may be relevant in other compensation situations. We are satisfied that, the legislature changed the language of the statute at least to reverse the results of such cases as City Bus Company and Brown. The pertinent amendment language requires that when the board finds that “the condition” is a dormant one aroused into disabling reality by subsequent injury or occupational disease, the employer can, to the extent otherwise permitted by statute, shift partial responsibility to the Fund even though the condition is not caused by “disease” according to the ordinary meaning of that word as contrasted with a technical or scientific definition of the word. Spondylolisthesis falls within this covered category.

The judgment is affirmed.

REED, C. J., and CLAYTON, JONES, LUKOWSKY, PALMORE and STERN-BERG, JJ., sitting.

All concur.


author: LUKOWSKY, Justice.

text:
    BOARD OF EDUCATION OF PULASKI COUNTY, Kentucky, Appellant, v. Garvis BURKETT, Appellee.
    Court of Appeals of Kentucky.
    May 23, 1975.
    John T. Mandt, Somerset, for appellant.
    Arthur L. Brooks, Lexington, Lester H. Burns, Jr., Somerset, for appellee.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Pulaski Circuit Court which determines that KRS 161.790(3) and (4) violate the 14th Amendment of the Constitution of the United States. We reverse and remand.

■ The rationale of the judgment is that a “tenured teacher” who is removed in the manner provided there is deprived of property interests and contract rights without procedural due process, because the school board is cast into and occupies the roles of employer, investigator, accuser, prosecutor, jury and judge, and this combination of roles is inconsistent with traditional concepts of fundamental fairness.

A unanimous Supreme Court of the United States rejected this exercise in intellectual sophistry when it decided Withrow v. Larkin, - U.S. -, 95 S.Ct. 1456, 43 L.Ed.2d 712, (decided April 16, 1975). It would serve no useful purpose to restate the principles enunciated there. Suffice it to say they sustain the validity of KRS 161.790(3) and (4).

The process of judicial review provided by KRS 161.790(6) and the form of hearing mandated by our decision in Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967) cloak a “tenured teacher” adversely affected by board action with additional and sufficient blankets of protection.

The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

All concur.


author: JONES, Justice.

text:
    Charles ALLEN and Arle C. Caldwell, d/b/a Allen and Caldwell Trucking Company, et al., Appellants, v. Amanda Ora "Peach” ARNETT and Gerald Arnett, Sr., Appellees. The CHESAPEAKE AND OHIO RAILWAY COMPANY et al., Appellants, v. Amanda Ora (Peach) ARNETT and Gerald Arnett, Sr., Appellees.
    Court of Appeals of Kentucky.
    June 27, 1975.

      Earl R. Cooper, Salyersville, James E. Cooper, Gray, Woods & Cooper, Ashland, J. K. Wells, Wells, Porter & Schmitt, Paints-ville, for appellants.
    Marcus Mann, Salyersville, Robert J. Greene, Perry & Greene, Paintsville, for appellees.
   JONES, Justice.

This proceeding comes to this court for a review of an action by Amanda Ora (Peach) Arnett and Gerald Arnett, Sr., her husband. The action arose out of an accident that occurred when the operator of an Allen and Caldwell coal truck drove onto a railroad crossing and was struck by a train of the Chesapeake and Ohio Railway Company, causing the truck to collide with the automobile Amanda Arnett was driving. She had also entered onto the railway crossing in an opposite direction simultaneously with the coal truck. Amanda Arnett sought recovery for her personal injuries and Gerald Arnett, Sr., sought recovery for property damages to his automobile. The case was tried before the judge without a jury and by agreement of all the parties. After a lengthy trial consisting of an abundance of evidence, and the filing of many motions, pleadings and exhibits, the trial court entered a judgment in the amount of $20,-700.00 jointly and severally against both the Chesapeake and Ohio Railway Company, and Charles Allen and Arie Caldwell, d/b/a Allen and Caldwell Trucking Company. From this judgment, the C & O Railway Company and Allen and Caldwell Trucking Company prosecutes this appeal.

Both appeals are to be considered together. Amanda Arnett and her husband, Gerald Arnett, Sr., were permitted to file one brief in each of these appeals.

A number of questions and allegations of error on the part of the trial court are presented by the C & O Railway Company, and by the Allen and Caldwell Trucking Company. However, in the clear light of day, when the fog and mist are lifted, these issues may be capsulized as follows: (1) Who, if anyone, was negligent? (2) What was the cause of the accident and resulting injuries to Amanda Arnett, and the damages to Gerald Arnett, Sr.’s automobile?

In order that the court may place these issues in proper perspective it is essential to detail some of the pertinent facts.

On January 19, 1970, at approximately 12:50 p. m., the train of the C & 0 was proceeding in a westerly direction along the track at .Royalton, Kentucky, in the vicinity of the area where the track crosses Ky. Highway # 7. Prior to reaching the crossing, some of the train crew observed the coal truck of Allen and Caldwell Trucking Company approaching the crossing on Ky. Highway # 7, and proceeding in the direction of Salyersville, Kentucky. They lost sight of the coal truck temporarily, and when it again emerged into their view the truck was 80 feet from the crossing. As the coal truck moved closer to the crossing, it hesitated momentarily, then continued on across the track. Immediately before the impact, the brakeman shouted to the engineer, “He’s not going to stop!” The engineer placed the train in emergency. The train crew fell to the floor for their own protection. Although there is some conflict in the testimony of the witnesses, there is evidence that at the time of the impact between the train and the coal truck, the headlight of the train was on, the whistle was blowing, and the bell was ringing.

Prior to the collision, Amanda Arnett was driving her husband’s Chevrolet automobile along Ky. Highway # 7, in a southerly direction toward her home at Royalton, Kentucky. She first observed the coal truck at the crossing from her position at the corner of the post office and storebuild-ing, located some 55 feet from the center of the crossing. The cab of the coal truck had crossed the track. It is obvious that when she saw the coal truck across the track, she failed to look for the approaching train. There was evidence that at a point 20 feet from the crossing she could have observed the approaching train for a distance of 322 feet. She assumed that since the coal truck she was meeting was on the track, no train was approaching. Amanda stated: “I figured it was safe by the truck coming across. I never thought about the train coming.” Based on this assumption, and without looking for the train or hearing its approach, Amanda drove onto the crossing and was struck by the coal truck, immediately following the impact of the train with the coal truck.

At no time prior to the accident did any ' member of the train crew observe the automobile Amanda Arnett was operating. The Arnett automobile was pushed approximately 100 feet west of the crossing. One of the members of the train’s crew and others helped extricate Amanda from the damaged automobile.

The duties required of the railroad company are defined by statute, common law, and sometimes by city ordinance. The railroad company is required by statute to sound the whistle and ring the bell outside of cities, at a distance of 50 rods from the place where the track crosses on the same level any highway or crossing at which a signboard is required to be maintained, and the bell shall be rung or the whistle sounded continuously or alternately until the engine has reached the highway crossing. KRS 277.190.

It was the common law duty of the employees of the railway company to exercise ordinary care to have the locomotive under control and to approach the crossing at such reasonable rate of speed as in the exercise of ordinary care reasonably necessary to prevent injury to persons using the crossing.

The Arnetts argue that the crossing was extra-hazardous. There is no question that this was a dangerous crossing. The numerous exhibits introduced in evidence depict it to be so. The evidence of witnesses revealed that extreme caution was exercised by those who by necessity, had to use the crossing. There was much traffic at the crossing. The extra-hazardous crossing was not the real issue in this case. This court has heretofore addressed itself to this question when it stated:

“But regardless of the amount of traffic, a review of the many decisions of this court in which the principle has been considered convinces us that it does not apply unless there is a real and substantial obstruction to sight or hearing. The latter must always be the major consideration.’’ (Emphasis ours). Hargadon v. Louisville and Nashville Railroad Co., Ky., 375 S.W.2d 834 (1964).

The evidence in this case reveals that there was no real or substantial obstruction to sight or hearing on the part of the railway company employees. The uncontro-verted evidence also reveals that the train was operated within the proper speed limit. The real obstruction to Amanda Arnett’s sight and hearing was the coal truck.

We turn now to the duty, if any, the Allen and Caldwell Trucking Company owed Amanda Arnett. This court has consistently recognized that:

“. . . Before negligence may give rise to a cause of action in favor of the one who is injured thereby there should first exist a duty on the part of the negligent one toward the injured one before a liability attaches. . . . ” Brauner v. Leutz, 293 Ky. 406,169 S.W.2d 4, 5 (1943).

Thus, actionable negligence is based on the violation of a duty owed to the injured person by the negligent one. Certainly, Allen and Caldwell’s truck driver owed certain duties to other members of the public traveling the highway in an opposite direction, including Amanda Arnett. These duties were: (1) to keep to the right of the center of the road; (2) to keep a proper lookout for approaching vehicles; and, (3) the general duty to exercise ordinary care to avoid a collision with an approaching automobile. However, there was no duty on the driver of the coal truck to play “follow the leader” as that game was played by Amanda Arnett. Amanda Ar-nett had no legal right to rely upon the presence of the coal truck on the crossing as a guarantee of safe passage across the railway tracks. A motorist has the same responsibility of care at a railroad intersection as he would have in entering a superior highway. Louisville and Nashville Railroad Company v. Dunn, Ky., 380 S.W.2d 241 (1964).

Amanda Arnett owed the driver of the coal truck and to other members traveling the highway in an opposite direction reciprocal duties that the driver of the coal truck or any other motorist similarly situated owed to her.

A review of the record in this case fails to disclose that the driver of the coal truck was remiss in any legal duties owed to Amanda Arnett. Her testimony reveals that the coal truck was on its side of the road.

We will now discuss the cause of the accident, and the resulting injuries to Amanda Arnett, and the damage to her husband’s car.

Amanda Arnett was familiar with this particular crossing. She traveled the highway frequently. She knew that many coal trucks and other vehicles used the highway and the crossing. Her vision was unobstructed within 25 feet of the railway track and crossing. Known hazards exact greater care on the part of the traveler than those which are unknown.

Amanda Arnett could have seen or heard the approaching, train had she looked and listened properly. She could have done this before her view was obstructed by the coal truck.

If the Allen and Caldwell driver breached any duty of ordinary care for his own safety, that act does not provide Amanda Arnett a license to blindly proceed on to the crossing merely because a track was there.

The trial court heard the evidence. He listened to much argument. He made many rulings. At the conclusion of the trial, he prepared detailed findings of fact and conclusions of law. This court is bound by those findings unless they are clearly erroneous. CR 52.01. The court is aware that the learned trial court had an arduous task in the trial of this case. This 'court is always reluctant to disturb a trial court’s findings. However, a review of the testimony, and the photographs and maps presented in evidence convinces this court that Amanda Arnett, by the exercise of ordinary care, should have seen the train which was in plain view. When her view was obstructed by the coal truck, she was under a continuing duty to exercise that degree of care commensurate with the danger that confronted her.

The court concludes that Amanda Arnett was contributorily negligent as a matter of law, and this negligence on her part was the substantial factor that caused the injuries to her and the damages to her husband’s automobile. The findings of fact, conclusions of law, and the entry of a joint and several judgment against the C & 0 Railway Company and the Allen and Caldwell Trucking Company in the amount of $20,700.00, are clearly erroneous. CR 52.01.

The judgment is reversed with directions that the judgment in favor of the Arnetts be set aside, and judgment be entered for the appellants, C & O Railway Company and the Allen and Caldwell Trucking Company.

REED, C. J., and CLAYTON, JONES, LUKOWSKY, STEPHENSON, PALMORE and STERNBERG, JJ., sitting.

REED, C. J., and LUKOWSKY, J., concur in result only.


author: STEWART, Judge.

text:
    Louis L. BATEMAN, Respondent, v. Henry E. ROSENBERG, M. D. Appellant.
    No. 35436.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 13, 1975.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied June 26, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      William R. Kirby, St, Louis, for defendant-appellant.
    Thomas C. Hullverson, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Louis L. Bateman, plaintiff, brought an action for the wrongful death of his wife, Ava, against Henry E. Rosenberg, M. D., defendant. The cause was submitted to the jury on the theory that defendant who had performed a tonsillectomy upon Mrs. Bate-man had sent her “home under inadequate nursing supervision”. Verdict and judgment were for plaintiff in the sum of $50,-000. Defendant appeals contending that plaintiff failed to make a submissible case under the theory submitted; and that the court erred in giving the verdict directing instruction because there was no substantial evidence to support the charge. Defendant also charges that the trial court erred in overruling his objection to a hypothetical question.

In our review we must “consider the whole evidence, giving plaintiff the benefit of all facts and circumstances favorable to or tending to support his theory of the case with every reasonable inference that may be drawn therefrom, as well as any evidence offered by defendant, and such inferences as are favorable to plaintiff and we will disregard any of defendant’s evidence contradictory or unfavorable to plaintiffs contentions.” York v. Daniels, 241 Mo.App. 809, 259 S.W.2d 109 (1953).

Ava Bateman, 48 years of age, had been married to plaintiff, who was 70 years’of age, since 1963. She was in good health except for tonsillitis for which she was being treated by defendant.

On June 15, 1970, between 8:30 and 9:00 a. m. Mrs. Bateman went to the office of defendant for a scheduled tonsillectomy. Defendant is a physician and surgeon engaged in the general practice of his profession. He is not on the staff of any hospital. He testified that his “work in tonsillectomy is as great as anyones.” After a preliminary examination Ava Bateman was given Demoral and Valium and 45 minutes later at about 10:00 a. m. defendant performed a tonsillectomy. He used the Sluder instrument, which tends to cause more bleeding than other methods.

The patient was then taken to another room where she was put into a bed to recover and to await the arrival of her neighbor, Mrs. Peggy Brooks. Mrs. Bate-man had arranged to have Mrs. Brooks come by the defendant’s office at about 4:00 p. m. to take her home.

There was testimony by the defendant to the effect that the defendant or his office assistant, Bertha Monahan, looked in on Mrs. Bateman throughout the day. She was given “constant attention”. Mrs. Mon ahan had no nursing training, her duties were to answer the telephone, file cards, clean and show patients to the examining room. Around 2:00 p. m. the defendant found Mrs. Bateman with her fingers in her mouth. There was blood on her fingernails and she was smoking. The doctor told her not to smoke. Mrs. Monahan testified that she looked in on Mrs. Bateman about one-half hour before Mrs. Brooks arrived, she saw nothing unusual.

When Mrs. Brooks arrived at 4:00 p. m. Mrs. Monahan took her to Mrs. Bateman. Mrs. Bateman was lying on the bed face down. Mrs. Brooks raised her head to find her face covered with blood. There was blood in her hair and the bed was full of blood. She wiped the blood from Mrs. Bateman’s face and took her to the bathroom where she threw up blood, approximately a glass full. The door to the bathroom was open. As she came out of the bathroom the doctor was standing by the door. He handed Mrs. Brooks a bottle of Riopan and told her to give Mrs. Bateman two teaspoons when she got home. Riopan is an antacid and stomach sweetener. He also told her to place an ice pack on the throat and that he would send some additional medicines. No other instructions were given. Mrs. Bateman seemed groggy and made no response. No inquiry was made as to Mrs. Brooks’ background or experience with persons who were ill or recovering from surgery. Mrs. Monahan helped Mrs. Brooks take Mrs. Bateman to the car where Mr. Brooks was waiting. The two women got into the rear seat. When they got to the Bateman home Mrs. Brooks took Mrs. Bateman upstairs and put her into bed. Riopan was administered and an ice pack was placed on Mrs. Bateman’s throat.

Mrs. Brooks had merely volunteered to take Mrs. Bateman home and when she had to go home to prepare the family meal she called Mrs. Vivian Cadle, the downstairs neighbor, who volunteered to stay with Mrs. Bateman until Mr. Bateman came home. Mrs. Brooks told Mrs. Cadle of the instructions given by defendant.

When Mrs. Cadle arrived Mrs. Bateman was in bed lying on her back making loud noises “she was like snoring, loud noises.” On one occasion there was some blood in her mouth and she appeared to want to spit up. Mrs. Brooks and Mrs. Cadle brought her a bucket and attempted to hold her up. Mrs. Bateman could not spit up, and she fell back into bed on her back and continued to make the sounds which the witnesses had described. Mrs. Brooks then went home.

The drugs ordered by defendant came about 6:00 p. m. They consisted of a local antiseptic, a cough medicine compound, neither of which would stop bleeding, and vitamin K. The latter is of very speculative value in stopping bleeding. Mrs. Cadle did not administer any of the drugs. Mrs. Bateman was apparently asleep.

Mr. Bateman came home from work about 6:30 p. m. He spoke to his wife but got no response. She did not make a sound. Mrs. Cadle related the instructions she had received from Mrs. Brooks. After Mr. Bateman got some more ice, he touched his wife who felt cold and made no response. He called his sister who called the police who in turn took Mrs. Bateman to the hospital, where she was pronounced dead.

The cause of death was determined to be asphyxia or strangulation due to blood in the bronchial tree and edema or swelling of the glottis. The swelling was the result of the surgery; the bleeding, blood loss and inability to breathe.

Other facts necessary to our determination will be stated where appropriate.

Plaintiff having submitted his case on the theory that defendant had sent his wife home “under inadequate nursing supervision” has abandoned other pleaded charges of negligence and can recover only if there is substantial evidence to support the charge submitted. Hampton v. Loper, 402 S.W.2d 825 (Mo.App.1966).

The surgeon’s obligation to the patient is not discharged with the conclusion of a successful operation. Unless terminated by the parties, his relationship to the patient “ . . . continues until ended by the cessation of the necessity which gave rise to the relation, and the surgeon must not only use reasonable and ordinary care and skill in performing the operation, but during the continuance of the relation of physician and patient exercise ordinary diligence in the subsequent treatment and give, or see that the patient is given, such attention as the necessity of the case demands.” Reed v. Laughlin, 332 Mo. 424, 58 S.W.2d 440 (1933). Where the doctor knows or should' know that a condition exists which requires continuous or frequent expert attention to prevent injurious consequences he must render that attention or see that some other competent person does so. Jackson v. Burton, 226 Ala. 483, 147 So. 414 (1933). It thus follows that if the doctor is unable to personally attend a person under such circumstances it is incumbent upon him to see that those persons who are to be in nursing attendance upon the patient are competent to perform those services or to give them such instruction as will enable them to competently look after and care for the patient.

Defendant agreed with the plaintiff’s two expert witnesses that the greatest danger in a tonsillectomy is bleeding. Along with bleeding there is the danger of strangulation. The critical period is the first 24 hours following the operation. Dr. Rosenberg testified that the patient should be positioned on her side so that she could “slobber”, that is bring up anything in the mouth. This prevents swallowing and consequent “trouble”. Defendant in recognition of the standard of care required of him testified that he had given Mrs. Brooks instructions to position Mrs. Bateman on her side or on her stomach with her head to the side. Mrs. Brooks testified that Dr. Rosenberg did not instruct her with respect to positioning Mrs. Bateman. Whether defendant gave the instructions was for the jury to determine. The jury could well have found from defendant’s testimony that he should have given those instructions and from the testimony as a whole that he did not.

Mrs. Brooks had no nursing experience or training and no attempt was made by the defendant to determine whether she was capable of looking after Mrs. Bateman, absent adequate instructions. The doctor had never spoken to Mr. Bateman and admitted that he had made no inquiry whatever concerning his patient’s husband.

Testimony on behalf of defendant was to the effect that Mrs. Bateman had “constant attention” throughout the day. Defendant admitted seeing Mrs. Bateman’s fingernails full of blood at 2:00 in the afternoon. The jury was free to find that she had suffered extensive bleeding just before she went home, her face and the rubber sheet she was lying on were covered with blood. With “constant attention” defendant should have been aware of this condition. Defendant was in the room in which the bathroom was located when Mrs. Bateman went into the bathroom and threw up about a glass full of blood. The bathroom door was open. It was right after this that defendant provided Riopan to settle her stomach. From the evidence the jury could infer that defendant was aware of the fact that Mrs. Bateman had vomitted.

The jury could find from the facts that defendant knew that Mrs. Bateman required competent nursing care; that he released Mrs. Bateman to go home without ascertaining that Mrs. Bateman would be adequately supervised and without giving Mrs. Brooks instructions that would permit her and those who would relieve her to give Mrs. Bateman adequate nursing supervision.

The jury was also warranted in finding that the death of Mrs. Bateman by strangulation by reason of blood in the bronchial tree and the swollen glottis was a natural consequence of defendant’s failure to see that Mrs. Bateman received adequate nursing supervision. As noted above defendant recognized that strangulation could result from bleeding particularly were the patient not properly positioned. We conclude that there was sufficient substantial evidence to submit this case to the jury.

In as much as there was sufficient evidence to make a submissible case on the single theory submitted in plaintiff’s verdict directing instruction it necessarily follows that there was sufficient evidence to support the giving of the instruction. .

Defendant complains that there was no standard of “acceptable practice of ‘adequate nursing supervision’ ” established by expert testimony.

It is the general rule that expert medical testimony is ordinarily necessary to establish what constitutes due care and skill under the circumstances of a particular case. Hart v. Steele, 416 S.W.2d 927 (Mo.1967). However expert medical testimony is not always essential in order to make a jury issue in a malpractice case, defendant’s own testimony may be taken as establishing the standard of care required. Richeson v. Roebber, 349 Mo. 132, 159 S.W.2d 658 (1941). In this case, as was said above, the defendant himself established the standard of care required. He gave testimony as to the proper positioning of the patient so that any bleeding would be expelled from the mouth and thus prevent swallowing of blood which could lead to strangulation.

Defendant in arguing that the standard was not established, or more precisely, to establish that his instructions were adequate refers us to the cross examination of Dr. Cutler one of plaintiff’s expert witnesses. We quote from defendant’s brief:

“This witness on cross-examination was asked by defendant’s counsel a hypothetical question (T. 136,137) that included the following as to post-operative instructions and nursing care (T. 137):
‘She had been warned not to smoke, and that the lady who came to pick her up was to stay with her, and that some medication would be sent by a pharmacy, and to follow the directions on the medication.
And that the lady then went home under these conditions.
Doctor, if these instructions were followed, isn’t that essentially what this lady would have gotten in the hospital? A. According to what.you have said, is adequate. The only difference in the care is that in the hospital she would have been under trained care and trained personnel. That’s the only difference.’
Thus the above expert witness confirmed the adequacy of defendant’s instructions to the deceased upon being released to go home.”

A reading of the entire hypothetical question reveals that Dr. Cutler was also asked to take into consideration, as a fact, that Mrs. Brooks was instructed: “That she [Mrs. Bateman] should be watched and should be kept off of her back and on her side or stomach with her head to the side.”

If independent expert testimony was necessary to establish the standard of care it was established by Dr. Cutler’s answer to the hypothetical question propounded by defendant.

Defendant contends that the trial' court erred in overruling his objection to the hypothetical question propounded to Dr. Cutler. This matter was not preserved for our review in the motion for a new trial. Glassburner v. Burtrum, 418 S.W.2d 119, (Mo.1967).

The judgment of the trial court is affirmed.

SMITH, C. J., and KELLY, J., concur.


author: RENDLEN, Judge.

text:
    Louis PALERMO, Plaintiff-Respondent, v. Mel COTTOM et al., Defendants, Lawrence Perry and Roger Links, Defendants-Appellants.
    No. 35545.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 20, 1975.
    Motion for Rehearing or Transfer Denied June 26, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      John T. Sluggett, III, Clayton, for defendants-appellants.
    Shaw & Howlett, Joseph Howlett, Terry Flanagan, Clayton, for plaintiff-respondent.
   RENDLEN, Judge.

Defendants Perry and Links appeal from judgment in a malicious prosecution action awarding $1,000 actual damages against defendants jointly and punitive damages of $2,000 against Perry and $100 against Links.

Defendants contend the court erred: (1) in refusing to direct a defendants’ verdict on plaintiff’s failure to make a submissible case; (2) in failing to declare a mistrial following plaintiff’s injection of prejudicial, non-responsive testimony; and (3) by its failure to grant a mistrial after making certain comments indicating the court’s partiality, irritability and impatience.

Plaintiff claims defendants maliciously instigated a criminal charge against him of willful and unlawful interference with police officers while in performance of their official duties. Defendant Perry executed an affidavit relative to this charge which led to the information and criminal proceedings against Palermo (plaintiff-respondent here) in the Magistrate Court of St. Louis County. That case ended in mistrial when the jury failed to agree upon a verdict and was dismissed by the prosecutor’s office.

“Actions for malicious prosecution are not favorites of the law . . . Among the reasons assigned therefor is a sound public policy under which the public’s interest in peace and good order exact of an individual citizen for the benefit of the public at large certain requirements that citizens be not deterred by a fear of unpredictable consequences from a bona fide resort to the duly constituted authorities and tribunals for the vindication of the interests of society in matters of public justice.” Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127,125 S.W.2d 75, 79 (Mo.1939). However, the disfavor with which the action is viewed on policy grounds requires only a strict construction of the elements of the cause and does not work a destruction of the tort. The disgrace and impairment of reputation of the victim of malicious prosecution is just as serious to him as it is to one who suffers the disgrace of defamation, and a petition with just grounds will be heard. Randol v. Kline’s, Inc., 330 Mo. 343, 49 S.W.2d 112, 119 (1932). It is important to note that defendants in the present action do not enjoy immunity on the grounds of their positions as police officers. Motley v. Dugan, 191 S.W.2d 979, 982 (Mo.App.1945).

We consider first appellants’ contention that plaintiff failed to make a sub-missible case and the trial court erred in failing to direct a verdict at the close of the evidence. As a general rule, where there are disputed facts, such that finding them in favor of plaintiff would sustain his cause, it is error for the trial court to direct a verdict against him. Pinson v. Campbell, 124 Mo.App. 260, 101 S.W. 621 (1907). The evidence is viewed in the light most favorable to plaintiff, Huffstutler v. Coates, 335 S.W .2d 70 (Mo.1960), with the benefit of all reasonable inferences that may be drawn in his favor, McFarland v. Union Finance Co., 471 S.W.2d 497, 499 (Mo.App.1971), and defendants’ evidence unfavorable to plaintiff will be disregarded. Hughes v. Aetna Ins. Co., 261 S.W .2d 942, 945 (Mo.1953).

Plaintiff’s testimony shows that on the evening of February 28, 1967, he made a business call at a tavern as part of his duties as district manager for Anheuser-Busch Brewery, and during the evening drank five “beers”. He then drove to the Rite-Way Diner located in the Village of Marlborough, St. Louis County, and while driving from the tavern to the diner encountered no other automobile. After dinner at the Rite-Way he went to his car in the parking lot and defendant Perry, an officer of the Marlborough police force, approached and asked to see his driver’s license. Plaintiff reached into his car to get his billfold and inadvertently picked up one of two billfolds which contained an athletic commissioner’s badge. Defendant Perry asked what the badge was and plaintiff told him. After the billfold was handed to Perry, plaintiff testified that Perry said “You’re another one of those smart Dagos”, and when asked again about this matter on direct examination, plaintiff testified that Perry called him a “Dago bastard”. Plaintiff asked Perry why he was being interrogated and Perry advised there had been a complaint that while driving he had forced a car with two women off the highway. According to plaintiff he replied “You must be out of your mind, you saw me come out of the diner, just finished eating dinner.” Then officer Perry placed him under arrest. At that time Perry called for assistance (apparently on his car radio) and shortly three other patrol cars arrived with officers of the Marlborough police force, including Chief of Police Mel Cottom and defendant Roger Links. Some of the officers, including Chief Cottom, were in plain clothes and others uniformed. On the arrival of reinforcements plaintiff said “What in the hell is going on”; Chief Cottom showed his badge and said he was under arrest. Plaintiff took out a pencil to write down Cot-tom’s badge number and as he did so, an unidentified officer grabbed his arm and in the process was “stuck” by plaintiff’s pencil. The officer’s hand was slightly pierced by the end of the pencil. Immediately plaintiff was picked up by defendants Perry and Links who held both hands behind his back. The pressure was painful and he kept saying “Leave me alone” and “kept yelling for help”. At that time he was struck in the left eye by one of the officers and to keep him from yelling someone put a hand over his mouth. As plaintiff described it, he was struck by an officer, “Then politely someone commenced to put their hand over my mouth to keep me from shouting” and “I bit him”. Plaintiff believed this was officer Links though defendants testified that officer Perry put his hand over plaintiff’s mouth and was bitten. Plaintiff was handcuffed, placed in the police car, taken to Marlborough City Hall by defendants Links, Perry and Cottom, thence to the St. Louis County Hospital for treatment of his eye and finally to the County Jail in Clayton where he was booked, made bond and released.

Plaintiff testified that as a result of his treatment by the defendants his clothes were torn, he was bruised and his back injured, causing three days absence from work. He further testified that he never failed to follow directions given to him by the police officers during the altercation and though he admitted biting the officer’s hand, he denied breaking the skin. Defendant Perry testified his hand was bleeding, had several puncture marks and went to the hospital to get “a tetanus shot for it”.

Plaintiff’s next witness, defendant Links, testified that while acting in his capacity as police officer he responded to the assistance call from officer Perry and arriving at the scene he found the plaintiff screaming, “calling names”, “generally hollering”, and Links attempted with little success to calm him. Links then assisted Perry in handcuffing plaintiff. Perry’s testimony, and that of his witnesses, contradicts Palermo in most particulars.

Four days after the arrest, defendants Links and Perry appeared at the office of the St. Louis County Circuit Attorney where Perry signed an affidavit prepared by an assistant prosecutor leading to the criminal charges against Palermo (plaintiff-respondent here). Defendant Cottom, called as a witness by plaintiff, testified he had nothing to do with the issuance of the information in the criminal case and his motion for directed verdict at the close of plaintiff’s case was sustained. No appeal is taken from that judgment of the trial court.

The elements of a cause for malicious prosecution are: (1) commencement of prosecution of the proceedings against the present plaintiff; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) &b-sence of probable cause for such proceedings; (5) the presence of malice therein; (6) damage to plaintiff by reason thereof. McFarland v. Union Finance Co., supra, 471 S.W.2d at 499; Hoene v. Assn. Dry Goods Corp., 487 S.W.2d 479, 483 (Mo.1972). Of these six elements defendants challenge the sufficiency of plaintiff’s proof as to the second, third, fourth and fifth elements.

A person’s acts may be the legal cause of prosecution if instituted at his insistence and request. It is sufficient if his action takes the form of an affidavit on which the case is based, regardless of further participation in the prosecution. Ruth v. St. Louis Transit Co., 98 Mo.App. 1, 71 S.W. 1055 (1903); 52 Am.Jur.2d, Malicious Prosecution, § 24. To impose liability there must be affirmative action by way of advice, encouragement, pressure or something similar in the institution, or causing the institution of the prosecution. Coffman v. Shell Petroleum Co., 228 Mo.App. 727, 71 S.W.2d 97, 103 (1934). Mere giving of honest assistance and information which leads to a prosecution does not necessarily render a person liable as an instigator of that prosecution, Pride v. Lamberg, 366 S.W.2d 441 (Mo.1963), Hunter v. Karchmer, 285 S.W.2d 918 (Mo.App.1955), although he may be liable for giving false information to the person prosecuting. 54 C.J.S. Malicious Prosecution, §§ 13 — 15. See LaFont v. Richardson, 119 S.W .2d 25, 29 (Mo.App.1938).

With respect to defendant Links’ activities following the arrest, there is no evidence he did anything other than accompany Perry to the prosecutor’s office and, under mandate of subpoena, testify at the criminal trial. He signed no affidavit and made no statement to the prosecutor. The elements of malicious prosecution must be strictly construed, Higgins v. Knickmeyer-Fleer Realty & Inv. Co., 335 Mo. 1010, 74 S.W.2d 805 (1934), and the record is insufficient to show that Links filed criminal charges or influenced Perry to do so. Though we view the evidence in the light most favorable to plaintiff, we are unable to reasonably draw an inference of instigation or legal causation attributable to Links and hold that plaintiff has not sustained the burden of showing that defendant Links was the legal cause of the criminal prosecution. To render one liable for malicious prosecution begun by another it must appear that he was the proximate and efficient cause of putting the law in motion. There must be proof of some affirmative act in connection with the prosecution and only defendant Perry took such action. The fact that one urges the institution of proceedings is insufficient to render him liable if the prosecuting witness was not influenced by such promptings. Mere passive knowledge of or acquiescence in the acts of another is not sufficient. Bellington v. Clevenger, 228 S.W.2d 817, 818 (Mo.App.1950). Nothing in the record shows Links instigated, urged or recommended institution of the action. The evidence shows he believed and agreed with the statements in Perry’s affidavit but this constitutes passive acquiescence, not instigation. His appearance at the magistrate court tells nothing more than obedience to the subpoena and the record discloses nothing of the testimony in that proceeding. Plaintiff failed to make a submissible case against defendant Links and the court erred in failing to sustain his motion for directed verdict. The judgment is reversed as to defendant Links.

We now consider Perry’s contentions of insufficient proof as to certain elements of malicious prosecution.

Concerning causation or instigation (element # 2), Perry, on his own initiative, filed a sworn affidavit with the prosecuting attorney of St. Louis County, charging plaintiff with particular criminal acts. This led to the subsequent criminal trial and is sufficient to satisfy the proof requirements for legal causation or instigation as to this defendant.

He next contends plaintiff’s proof failed as to the third element, i. e., termination of the criminal prosecution in favor of the present plaintiff. Though the criminal action against Palermo was dismissed on motion of the prosecuting attorney without knowledge or consent of the defendants, the fact surrounding the dismissal marks the termination of the case in Palermo’s favor. The evidence is sufficient for sub-missibility of this element to the jury. La-Chance v. National Pigments & Chemical Co., 104 S.W.2d 693, 697-698 (Mo.App.1937). In oral argument defendant cited Tucker v. Duncan, 499 F.2d 963 (4th Cir., 1974), for the proposition that there is no action for malicious prosecution when the prosecutor enters his motion of nolle prosequi. However, Tucker involved a dismissal “induced and brought about” by the party being prosecuted and thus is distinguishable from the case at bar.

The next element challenged by defendant Perry is the absence of probable cause for the original criminal proceedings against Palermo. Probable cause for initiating the prosecution is defined as reasonable grounds for suspicion, supported by circumstances in evidence sufficiently strong to warrant a cautious man in his belief that the person accused is guilty of the offense charged. LaFont v. Richardson, supra; Higgins v. Knickmeyer-Fleer, supra; Hughes v. Aetna Ins. Co., supra. Probable cause is reasonable cause, not necessarily actual cause. We must consider the facts as the prosecuting party could have reasonably believed them to be under the circumstances at the time. Lindsay v. Evans, 174 S.W.2d 390, 396 (Mo.App.1943). Since want .of probable cause involves a negative, only slight proof is necessary to make a prima facie case. Hughes v. Aetna Ins. Co., supra, 261 S.W.2d at 945. Defendant Perry’s contention that he observed the facts and knew Palermo committed the acts complained of is in conflict with Palermo’s testimony; Palermo claims, in effect, the facts are not as stated by Perry in his affidavit, that he did not unlawfully interfere with Perry’s investigation of a reported crime and therefore Perry had no cause to file the affidavit. Where conflict appears in material evidence relied on to constitute probable cause, it becomes a jury question and a submissi-ble case is made. Jones v. Phillips Petroleum Co., 186 S.W .2d 868, 875 (Mo.App.1945); Hoene v. Assn. Dry Goods Corp., supra, 487 S.W .2d at [7]; Pinson v. Campbell, supra, 101 S.W. at 624. In view of the conflicting testimony on the events of February 28, 1967, the court did not err in refusing to direct a verdict for defendant Perry on the issue of probable cause.

Perry also claims there was no showing of malice sufficient to support plaintiff’s action. Malice as an element of malicious prosecution is defined as the intentional doing of a wrongful act without legal justification and may be inferred from the absence of probable cause. It does not necessarily involve hatred or ill will. Beatty v. Puritan Cosmetic Co., 236 Mo.App. 807, 158 S.W .2d 191, 196 (1942). Taking those facts favorable to plaintiff, the trial court properly ruled this contention against defendant Perry on his motion for directed verdict and there was sufficient evidence for the jury to conclude that Perry instituted the proceedings without legal justification and from that infer malice. LaFont v. Richardson, supra, 119 S.W.2d at 29; Hoene v. Ass. Dry Goods Corp., supra, 487 S.W.2d at 483.

Plaintiff’s evidence, taken as true, presented a submissible case for malicious prosecution as to defendant Perry and the court did not err in refusing his motion for directed verdict.

Defendants further contend error in the trial court’s failure to declare a mistrial when plaintiff referred to pictures of his wife and children. On direct examination plaintiff was asked if he left any personal belongings in his car parked outside the Rite-Way Diner, to which plaintiff responded:

“My billfold, [in] which I carry an athletic commissioner’s badge, pictures of my children and wife, and another billfold which has my credit cards and calling cards from the brewery.”

Defendants’ counsel objected and requested a mistrial which was denied; he then requested an instruction that the jury disregard that portion of the answer relative to the pictures of plaintiff’s wife and children. The court informed the jury that he was striking the response concerning the pictures of plaintiff’s wife and children but did not specifically instruct them to disregard the evidence. Defendants, in support of their contention, cite Donze v. Swofford, 368 S.W.2d 917 (Mo.App.1963), a personal injury suit. There plaintiff’s counsel asked how many children plaintiff had, defendant objected and the trial court overruled the objection, permitting the testimony to be given. In reversing the judgment, this court noted that the action of the trial court in effect told the jury it was permissible to consider irrelevant evidence, making it impossible to say the error did not affect the merits of the case. However, in Bush v. Anderson, 360 S.W.2d 251, 255 (Mo.App.1962), the court stated that “Such evidence, even though inadmissible, does not always constitute reversible error where it appears that such evidence has not affected the merits of the action.” Brown v. Parker, 375 S.W.2d 594, 601 (Mo.App.1964), reflects the general rule that evidence of family status or the number of people in the family unit is inadmissible except where relevant or pertinent to the issues raised. But “. . . where improper evidence comes into the case through a voluntary statement of a witness, a mistrial is not a matter of right but is a question calling for the exercise of a sound discretion by the trial court, and in the absence of an abuse of that discretion we cannot interfere . . . Certainly this should be true where the improper evidence comes into the case in response to a proper question.” Brown v. Parker, supra, at 601. Family status evidence is disapproved on grounds it incites sympathy and prejudice in the jury for the plaintiff, but in this case defendant does not object that the awarded damages are excessive and it is therefore even more difficult to declare with certainty that defendant was prejudiced. There was sufficient competent evidence on which the jury could have relied in reaching the verdict it did. The volunteered statement was the subject of an instruction to the jury, immediately after it was made, at the request of defendants’ counsel. Though the court could well have directed the jury to “disregard the last answer of the witness”, or by similar instruction more properly have corrected the problem, we nevertheless rule the instruction given cured whatever effect the statement had on the jury and the court did not abuse its discretion in refusing a mistrial.

Defendants’ final contention is the court erred in failing to grant a mistrial following an allegedly “prejudicial” and “inflammatory” statement by the judge, made in the presence of the jury, indicating bias, impatience and irritability. Early in the cross examination of plaintiff, defendants’ counsel attempted to impeach plaintiff by use of “Plaintiff’s Exhibit A” (the magistrate court file in the criminal prosecution), asking if the names of certain witnesses appeared thereon. The court sustained an objection from plaintiff that the exhibit was its own best evidence and it was unnecessary to have the witness read it. In his next question defendants’ counsel, in a somewhat different manner, asked about this matter and again an objection was sustained. Defendants’ counsel pointed out this was cross examination, to which the judge responded “Give it to me. You’re wasting my time.” Defendant immediately moved for a mistrial. Though the court’s remark was inappropriate, the apparent purpose of taking the exhibit and reading from it was to expedite the proceeding and by reading from the exhibit the court attempted to clarify for the jury matters which defendants’ counsel had been developing by his cross examination of plaintiff. This may have had a less dramatic effect in impeaching plaintiff than defendant would have liked, but neither this fact nor the seemingly impatient statement of the court is sufficient to warrant declaration of mistrial nor reversal of the judgment as to defendant Perry.

Judgment reversed as to defendant Links and affirmed as to defendant Perry.

WEIER, P. J., and DOWD and CLEMENS, JJ., concur.

      . The action originally included Mel Cottom as a defendant but was dismissed as to him at the close of plaintiffs case.

      . Defendants’ photographic exhibits show an injury to his right eye.


author: GUNN, Judge.

text:
    MFA MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Respondent, v. Ocia DUNLAP, Defendant, and Earl L. Richardson, Jr., Defendant-Appellant.
    No. 35970.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 20, 1975.
    Motion for Rehearing or Transfer Denied June 26, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      Dearing, Richeson, Roberts & Wegmann, Hillsboro, for defendant-appellant.
    Roberts & Roberts, Geoffrey L. Pratte, Farmington, for plaintiff-respondent.
   GUNN, Judge.

This appeal stems from a declaratory judgment finding that a policy of insurance effected by plaintiff-respondent MFA Mutual Ins. Co. to St. Francois County Reorganized School District R-l did not afford protection to Earl L. Richardson with respect to an automobile-school bus collision. The issue before us is whether the policy of insurance covers Earl L. Richardson.

The facts giving rise to this appeal follow. Ocia Dunlap’s wife was killed when her automobile was struck from the rear by a school bus owned by St. Francois County Reorganized School District R-l. The driver of the school bus was Kenneth Owens, an employee of the school district. Earl L. Richardson was a mechanic employed by the school district who had responsibility of maintaining the school district’s buses, including the bus involved in the accident which killed Ocia Dunlap’s wife. Ocia Dunlap filed suit against the school district, Kenneth Owens and Earl L. Richardson seeking damages for the wrongful death of his wife. MFA has agreed that it issued a contract of liability insurance insuring the school district buses, and by reason of the policy of insurance and within the limits of its coverage, MFA has undertaken the defense of Kenneth Owens, the bus driver. However, the dispute which is central to this case is whether the policy of insurance covers Earl L. Richardson, the mechanic. That dispute forms the basis of the declaratory action which we consider on this appeal, with the trial court declaring that Earl L. Richardson was not covered under the terms of the policy.

The named insured under MFA’s policy of insurance is “Reoganized School District R — 1.” The pertinent portions of the basic policy provide:

“II — Automobile Liability Insurance
1.COVERAGE A — Bodily Injury Liability;
COVERAGE B — Property Damage Liability — The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. Bodily injury sustained by any person;
B. Property damage sustained by any person; caused by accident and arising out of the ownership, maintenance, or use of the described automobile .
4. Persons Insured — With respect to the insurance afforded under Coverages A and B, the following are insureds:
(a) With respect to the described automobile,
(1) the named insured . . . , (2) any other person using such automobile with the permission of the named insured . . . , provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission. . .” (emphasis added)

An endorsement to the policy of insurance provides:

2. The insurance applies only to the Named Insured, to the School District, to the School Board and the individual members thereof, and to the owner and operator of the automobile, as Insured;
3. ‘School Bus’ use is defined as:
(d) Operations necessary and incidental to such transportation.” (emphasis added)

The trial court rendered judgment for MFA to the effect that Earl L. Richardson was not an insured, did not have control or use of the bus at the time of the accident and was not a named insured or owner or operator of the bus; that, therefore, MFA did not owe a defense to Earl L. Richardson.

On appeal, Richardson argues that the terms of the policy are sufficiently broad to provide him with coverage. Richardson refers to paragraph 1,B of the basic policy and emphasizes that coverage is provided for damages arising out of the maintenance or use of the bus; that since Richardson was responsible for the maintenance of the bus, the policy was clearly designed to cover his activities. Richardson also asserts that maintenance of the bus is a “use” of the bus. His excellent brief sets forth substantial law which has categorized maintenance as a use of a vehicle or from which it could be determined that a logical extension of the word “use” would include maintenance. He then directs attention to the omnibus clause set forth in paragraph 11,4 of the basic policy providing for coverage for “any other person using” the bus and concludes that Richardson’s use of the bus through the maintenance thereof places him squarely within the coverage provisions of the policy.

Richardson faces the challenge of paragraph 2 of the endorsement — which he admits does not include him, as he was not the named insured or owner or operator of the bus — and maintains that the endorsement does not change or eliminate the basic contract which provides Richardson with coverage. Richardson further argues that if there is a conflict between the basic policy which giveth coverage and the endorsement which taketh away, the conflict must be resolved against the insurance company and the policy given its broadest application in favor of coverage.

Thus, Richardson’s argument is threefold: 1) that the MFA policy specifically provides coverage for damages arising out of the maintenance of the buses; 2) that maintenance is a “use” of the bus, and under the omnibus provisions of the policy, coverage is extended to. anyone using the bus; 3) that conflict, if any, between the endorsement and the basic policy must be resolved in favor of providing coverage for him.

MFA’s chief contention is that the endorsement clearly limits the printed policy so as to exclude Richardson from coverage. And, in spite of Richardson’s fine presentation, we find that the endorsement presents an insuperable barrier to Richardson’s right to coverage under the MFA policy. We must, therefore, affirm the judgment of the trial court.

In reaching our decision, we are guided by the following basic tenets: 1) all provisions of an insurance policy should be given effect, and a reasonable construction must be given in the light of the specific situation with which the parties are dealing. Brugioni v. Maryland Cas. Co., 382 S.W.2d 707, 712 (Mo.1964); 7 Blashfield, Automobile Law and Practice, § 292.8 at 224 (3d ed.1966); 2) the policy of insurance and endorsement thereto should be construed together unless they are in such conflict that they cannot be reconciled. Cain v. Robinson Lumber Co., 365 Mo. 1238, 295 S.W.2d 388, 390-391 (banc 1956); 13 Appleman, Insurance Law and Practice § 7537 at 290— 291 (1943); 3) “It is equally well settled law in Missouri that even if the language of an endorsement (here, the exclusionary provisions) could be said to be in conflict with the printed or general provisions of the booklet policy, the language of the endorsement will prevail. Stated differently, if the general or printed provisions of the policy are clearly limited by an effective endorsement, the limitation will be enforced and no ambiguity, as such term is recognized in contract law, is thereby created.” Barton v. American Family Mut. Ins. Co., 485 S.W.2d 628, l.c. 632 (Mo.App.1972), and cases cited therein; 4) “It is unquestionably true and the settled law of Missouri that, where the language of a policy is clearly and unequivocally limited by a document attached to the printed policy by the insurer or its authorized agents and pursuant to the agreement of the parties, the subsequent limitation will be given effect, and no ambiguity is created because of the conflict with the printed portions of the policy.” Empire Fire and Marine Ins. Co. v. Brake, 472 S.W.2d 18, l.c. 23 (Mo.App.1971), and cases cited therein; 5) where an insurance contract is written in plain and unambiguous terms, it is not the function of the court to construe the language of the policy in favor of the insured. Automobile Club Inter-Ins. Exch. v. Diebold, 511 S.W.2d 135, 137 (Mo. App.1974); 6) unless some public policy or statutory interdiction exists, parties to an insurance policy may, by 'agreement, limit the liability of the insurer to the insured. Automobile Club Inter-Ins. Exch. v. Die-bold, supra; Webb v. State Farm Mut. Auto Ins. Co., 479 S.W.2d 148, 150 (Mo.App. 1972); 7) The court cannot make a new contract and create an ambiguity for the parties in order to give the policy a distorted or forced construction. First Nat’l Bank of Malden v. Farmers New World Life Ins. Co., 455 S.W.2d 517, 523 (Mo.App.1970).

With the foregoing legal maxims before us, it is manifest that the endorsement excludes Richardson from coverage. The endorsement explicitly limits coverage to the named insured (the school district), the school board and its members, to the owner of the bus and to the operator of the bus (Kenneth Owens). The plain language of the endorsement is restrictive in the number of persons insured. Richardson, whether by name or job description, is not listed as a person covered. We find no ambiguity between the provisions of the basic policy and the endorsement. The language of the policy is clearly and unequivocally limited by the endorsement, which does not include Richardson, and the limitation of the endorsement must be given effect to exclude Richardson from coverage, thereby limiting the liability of MFA in accordance with the clear provisions of the endorsement. Barton v. American Family Mut. Ins. Co., supra ; Empire Fire and Marine Ins. Co. v. Brake, supra.

We need not rule on whether maintenance or the work performed by Richardson is a use covered within the policy. Our decision turns on the issue of whether the policy endorsement embraces Richardson as an insured; it does not.

T.he judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . The trial court dismissed Ocia Dunlap’s petition against the school district on grounds of governmental immunity, and that matter has not been brought before us.


author: McMILLIAN, Judge.

text:
    Anne FRIEDMAN, Plaintiff-Appellant, v. Earl I. MILLER et al., Members of the Civil Service Commission of St. Louis County, Defendants-Respondents.
    No. 36140.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 27, 1975.
    Motion for Rehearing or Transfer Denied June 26, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      Newmark & Baris, Irl B. Baris, Kenneth H. Graeber, St. Louis, for plaintiff-appellant.
    Thomas W. Wehrle, St. Louis County Counselor, Andrew J. Minardi, Assoc. County Counselor, David V. Collignon, Asst. County Counselor, Clayton, for defendants-respondents.
   McMILLIAN, Judge.

This is an appeal by Anne Friedman, a civil service employee of St. Louis County, Missouri, who served as a Senior Revenue Clerk in the Department of Revenue, Division of Assessment and Extension, from a judgment of the Circuit Court of St. Louis County, affirming the decision of the Civil Service Commission (hereinafter referred to as “Commission”) § 536, RSMo 1969, V.A. M.S. To seek reversal Miss Friedman claims that the court erred in sustaining the decision of the Commission because (1) a defective notice given by the Assessor; and (2) the decision was unsupported by competent and substantial evidence upon the whole record. Our review of the entire record convinces us that neither claim of error has any merit and, accordingly, we affirm the judgment of the Circuit Court.

The evidence shows that on 1 May 1963 the Assessor gave Miss Friedman a notice of termination effective at the close of the business day but failed to set out the reasons for discharge. On 9 May 1963 Miss Friedman appealed her dismissal. On 10 May 1963 Mr. Chambers, Personnel Director, notified both the Assessor and Miss Friedman that no action could be taken on employee’s dismissal until Miss Friedman had been furnished a statement of the reasons for discharge. Thereafter, on the same day, the Assessor, by letter, informed Miss Friedman that she was discharged for failure to perform her duty of processing certain personal property declarations by the end of the tax year 1962, which resulted in loss assessments. By letter,' dated 31 May 1963, once again Miss Friedman appealed the dismissal; denied the charges and stated that the failure on her part to process the declarations was not her fault but was due to workloads thrust upon her, and the refusal of her superiors to permit the work to be done.

On 20 June 1963, the Commission held its hearing and found, on the procedural point, that on or before 1 May 1963, Miss Friedman was advised orally of the reasons for her discharge, but that the written notification of discharge which she received on that date failed to state any reasons; that on 10 May 1963, a written notification with a statement of reasons was mailed to her, which she received on or about 13 May 1963; and during the course of the hearing, the County tendered to Miss Friedman its check representing full pay up to the time of her receipt of a proper notice.

Although, as found by the Commission, that initially there may have been some procedural irregularities, we find that they were effectively cured — because subsequently she was informed in full as to the reasons for discharge, participated fully in a five-day hearing at which time she put forth her defense with the assistance of counsel, and was tendered in full compensation for the period between the defective notification of discharge and date of receipt of the written statement of charges. Consequently, we find no prejudice to Miss Friedman’s rights under Missouri law, since she was given notice, a specification of the charges, and an opportunity to be heard. State ex rel. Hamilton v. Kansas City, 303 Mo. 50, 259 S.W. 1045 (1923); State ex rel. Rawlings v. Kansas City, 213 Mo.App. 349, 250 S.W. 927 (1923) and State ex rel. Denison v. City of St. Louis, 90 Mo. 19, 1 S.W. 757 (1886). Therefore, we rule this contention against Miss Friedman.

Our review under the Administrative Procedure Act, Chapter 536, is limited to those matters enumerated in § 536.140, RSMo 1969. Specifically, our review of the Commission is limited to a determination of whether the Commission could have reasonably reached its result upon consideration of all the evidence before it or whether the Commission’s decision was clearly contrary to the overwhelming weight of the evidence. Blunt v. Parker, 495 S.W .2d 708, 712 (Mo.App.1973); City of Kirkwood v. Missouri State Bd. of Mediation, 478 S.W .2d 690 (Mo.App.1972); McCallister v. Priest, 422 S.W .2d 650 (Mo.1968), and Johnson v. Priest, 398 S.W.2d 33 (Mo.App.1965).

The Commission found that the Assessor dismissed Miss Friedman because of her failure to process a quantity of personal property declaration forms which was part of her assigned duties and that her failure was such a grave matter that it justified her dismissal. The Commission, in reaching its decision, took into account the extenuating circumstances raised by Miss Friedman to the effect that she made efforts to alert her supervisors that she had insufficient time to process the trailer court forms; noted that the evidence was conflicting; and found that the weight of the evidence justified a finding that her efforts to alert her supervisor were meager and did not relieve her of her responsibility for completing her assigned task. A well-settled principle in administrative law is that the credibility of witnesses is for the administrative body to determine and we, as a reviewing court, must give deference to the findings of the administrative body on the credibility of witnesses appearing before the body. Johnson v. Priest, supra.

From our reading of the record, we find full support for the Commission’s decision. The record clearly establishes that Miss Friedman had responsibility for the trailer court assessments in 1960, 1961 and 1962; that she knew that if the trailer court assessments were not placed on the rolls by 31 December 1962, tax revenues would be lost; that 208 trailer court declarations were not placed on the rolls for the tax year ending 31 December 1962; that a pricing and sampling of 52 or 25% of the outstanding 208 trailer court declarations showed a loss of $84,240; and that her defense that her supervisors had not allowed her to complete the cards and press of business interfered with her opportunity to complete the cards did not exculpate her.

Based upon the foregoing evidence and findings, we conclude that there was sufficient and competent evidence upon the record as a whole from which the Commission could have reasonably reached its decision.

Judgment of the Circuit Court is affirmed.

SIMEONE, P. J., and RENDLEN, J., concur.