author: TITUS, Judge.

text:
    David Robert WALSH, a minor, by his next friend, Robert L. Walsh, Plaintiff-Appellant, v. TABLE ROCK ASPHALT CONSTRUCTION CO., a corporation, et al., Defendants-Respondents.
    No. 9679.
    Missouri Court of Appeals, Springfield District.
    April 3, 1975.

      Donald E. Bonacker, Springfield, Robert S. Wiley, Crane, for plaintiff-appellant.
    Clay Cantwell, Cantwell & Allman, Branson, Harold J. Fisher, David W. An-sley, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

A loaded southbound dump truck owned by defendant Table Rock Asphalt Construction Co. (Table Rock) and driven by its employee, Donald Lee Hale, and a northbound automobile operated by the 17-year-old plaintiff collided head-on at a curve on Highway 13 in Stone County, Missouri. The impact occurred in front of the residence of Mrs. Merle Peterson which is located about four miles south of Reeds Spring and five miles north of Kim-berling City. Injuries received by Hale caused his death eight hours after the accident. Plaintiff (by his next friend) sued Table Rock for personal injury damages. Following the addition of Hale’s widow and minor children as parties defendant, the defendants counterclaimed for damages resulting from Hale’s death. Defendants’ combined counterclaim coupled Table Rock’s subrogation rights under the workmen’s compensation law (§ 287.150 RSMo 1969, V.A.M.S.) with the rights of Hale’s widow and children for wrongful death as provided by § 537.080 et seq. RSMo 1969, V.A.M.S., effective on December 11, 1969, the date of the involved casualty. In a separate count, Table Rock counterclaimed for damages to its truck. Solution of liability in the cause reposed in determining which vehicle was on the wrong side of the road at the time of impact. The jury resolved this issue in favor of defendants who were awarded $50,000 for Hale’s wrongful death; Table Rock’s property damages were assessed at $5,500. Plaintiff appealed when his motion for judgment notwithstanding the verdict or for new trial was overruled.

The initial three points relied on by plaintiff upon this appeal relate to whether the trial court erred vel non in permitting defendants’ witnesses to recount statements allegedly made by Hale at the accident scene. The statements, used testimonially by defendants, i. e., as utterances to evidence the truth of the matters asserted, were permitted in spite of some admitted trepidation on the part of the court nisi under what is rightly or wrongly termed in the texts and opinions as the res gestae.

Mrs. Peterson testified she was seated in the living room of her home “at about 3 :20 in the afternoon” when she heard the crash, jumped up and ran to the front porch. She saw the involved vehicles and the fact that the dump truck had upset in the east ditch across the road from her house and was burning. By the time she crossed the highway, two men were approaching the truck from a nearby house and they pulled Hale “out of the fire.” According to Mrs. Peterson it “looked like [Hale’s] clothing was all afire. He was moaning from pain and he never spoke a word while I was there.” Mrs. Peterson returned home to telephone for help and to get a blanket for covering Hale. She gave the blanket to Ronnie Rogers in her front room an estimated five to ten minutes after she heard the collision.

Wayne Jones was following Hale at a distance of about one mile. Behind him another mile and also driving a loaded dump truck was Ronnie Rogers. At the same time these two loaded trucks were southbound from Reeds Spring to Kimber-ling City, an empty dump truck was being, driven northward by Lonnie Dean towards Reeds Spring for reloading. Coy Blevins, Table Rock’s asphalt foreman, was at a motel in Kimberling City supervising the unloading of the dump trucks at that site. None of these men witnessed the accident.

Rogers estimated he arrived at the scene near 3 :30 p. m., and that about ten minutes elapsed from the time of his arrival until he placed the blanket over Hale. It was while Rogers was taking the blanket to Hale that he saw Lonnie Dean “go down there to Hale,” or, as Dean recounted, when he arrived “I saw Ronnie Rogers cornin’ up the ditch line or at the bottom of the embankment with a blanket.” Jones stated that he believed he was at the accident scene ahead of Lonnie Dean and that Coy Blevins came to the scene “ten, fifteen minutes afer I arrived.”

Dean testified that within “[f]ifteen to 20 seconds, I guess,” after he arrived, he knelt down beside Hale. He observed that all of Hale’s “clothes were burned off of him, and he was black, like charcoal. And all of the hair was burned off of his body and the only thing he had on was a pair of insulated boots Entirely burned up, flesh— black flesh hanging in layers.” About 30 seconds after he knelt beside Hale, Dean stated that Hale “said that he was scared he was goin’ to swallow his tongue . then in just a little bit, I guess, he had got his tongue under control and he said that she was goin’ too fast to make the curve and lost control of the car and that he tried to get out of the way but couldn’t.” When asked to relate what he observed “in regard to whether or not [Hale] was excited,” Dean answered : “He was excited about his tongue, but for a person in that condition he was calm.”

The statement which Wayne Jones heard Hale make was directed to Coy Blevins and, of course, was made after Blevins had arrived at the scene. By Jones’ account, when the statement was made, Hale “didn’t seem to be excited to me” and he said “Coy, I did all I could do and then they hit me.” Whether Jones and Blevins in their testimony undertook to repeat the same statement made by Hale is unclear. In any event, the testimony of Blevins was that Hale “just told me the car came around on his side of the road and he couldn’t get out of the way, and he was sorry.”

The statements reportedly made by Hale and repeated to the trial court and jury by witnesses Dean, Jones and Blevins, were said to have been uttered by Hale without his being questioned concerning the matter. The statements were admitted over numerous objections by plaintiff. Objections were made to all of the testimony concerning the statements because they were hearsay, were not made while Hale was excited, were not made immediately after the event before reflection, showed that Hale had reflected on facts and reached conclusions, and were opinions and conclusions of Hale and not statements of facts. The statements testified to by Dean and Blevins were additionally objected to because they were not in the exact words of Hale, and statements repeated by Jones and Blevins were also objectionable to plaintiff as they were not made spontaneously after the event.

Professor Wigmore (VI Wigmore on Evidence, 3rd Ed., § 1767, at p. 182) opines that the “phrase ‘res gestae’ has long been not only entirely useless, but even positively harmful. It is useless, because every rule of Evidence to which it has ever been applied exists as a part of some other well-established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both. It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology. No rule of Evidence can be created or applied by the mere uttering of a shibboleth. There are words enough to describe the rules of Evidence. Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision.” And Judge Barrett, author of Meyers v. Smith, 300 S.W.2d 474 (Mo.1957), wrote (1. c. 477): “. . . the distinguished legal scholars have repeatedly pointed out, with complete unanimity, the fallacies and unsoundness of res gestae as a rule of evidence, or as an exception to the hearsay rule which excludes proof of ‘extrajudicial utterances (only) when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.’ Nevertheless, Missouri’s bench and bar, with rare notable exceptions instead of candidly recognizing certain contemporaneous or spontaneous exclamations and utterances as a legitimate and basically sound exception to the hearsay rule . . . have stubbornly clung to the shibboleth of the meaningless Latin phrase. . . . But even the most convincing apologist for the [res gestae] doctrine is unable to reconcile even the leading Missouri cases, and vehemently objects to our attempts to combine Professor Wigmore’s ‘shock test’ with res gestae, particularly in connection with post-accident utterances. Annotation 163 A.L.R. loc. cit. 52-53, 90, 140, 156.”

The password suggested by Professor Wigmore to gain testimonial entrance past the hearsay rule in cases of this character is “Spontaneous Exclamations.” This exception to the hearsay rule “is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrus-tworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.” VI Wigmore on Evidence, supra, § 1747(I), at p. 135.

In refinement or adulteration of the foregoing (depending on the point of view) Missouri courts enounce that in considering the admissibility of a statement under the spontaneous exclamations exception (or the res gestae exception as it is more often called), the utterance should be regarded as presumably inadmissible because of the rule against hearsay [McKenzie Transport Leas. Co. v. St. Louis Pub. Serv. Co., 349 S.W.2d 370, 373[3] (Mo.App.1961)], and the burden of making a sufficient showing of spontaneity td render the statement admissible is on the party who offers it. Woods v. Southern Ry. Co., 73 S.W.2d 374, 377[2] (Mo.1934). The essential test applied to this class of statements is spontaneity. Hamilton v. Missouri Petroleum Products Co., 438 S.W.2d 197, 200 (Mo.1969). In testing for spontaneity, the mere fact that the utterance comes a very short time after the accident does not per se make it admissible [Wren v. St. Louis Public Service Company, 333 S.W.2d 92, 95[2] (Mo.1960)], and the amount of time which elapses is mainly material as evidence of the lack of spontaneity. Monical v. Armour and Company, 307 S.W.2d 389, 392[3] (Mo.1957). The declaration, however, need not be coincidental in point of time with the main fact and it is sufficient if the two are so closely connected that the utterance can be said to be the spontaneous exclamation of the real cause. Leahey v. Cass Ave. & F. G. Ry. Co., 97 Mo. 165, 172, 10 S.W. 58, 60 (1888). The true test is said to be neither the place nor the time of the utterance but whether it is a spontaneous exclamation produced by the exciting cause. Gough v. General Box Co., 302 S.W.2d 884, 889 (Mo.1957). Nevertheless, expressions of opinion are not generally admissible as part of the exception although they be accompanied by acts demonstrating declarant really entertained the opinion so expressed [Wiedanz v. May Department Stores Co., 156 S.W.2d 44, 49[10, 11] (Mo.App.1941)], and some other limitations placed upon the exception “are that a statement, to be admissible, must neither be a mere reflective narration of past events . . . nor an opinion, nor conclusion of fact reached by reasoning from other facts.” Sconce v. Jones, 343 Mo. 362, 370, 121 S.W.2d 777, 781-782[4] (1938). “However, ‘spontaneity’ hinges, not upon a determination of whether the declarant in fact did reflect or whether in fact his statement was prompted by self-interest, but upon whether the statement was ‘produced by the event itself.’ ” Cummings v. Illinois Cent. R. Co., 364 Mo. 868, 879, 269 S.W.2d 111, 119 (1954). Though rarely noted by the courts, necessity is not universally recognized as an essential element of the exception. VI Wigmore on Evidence, supra, § 1748, pp. 138-139. But where the declar-ant is an injured participant and dead at time of trial, a liberal application has sometimes resulted as evidenced by Johnson v. Southern Ry. Co., 351 Mo. 1110, 175 S.W.2d 802 (1943), which was criticized in 163 A.L.R., at p. 156. If the statement qualifies as a spontaneous exclamation (or constitutes a part of the res gestae), the fact it is self-serving does not make it inadmissible for its admission is predicated upon its trustworthiness arising out of the occasion of its utterance. Bennette v. Hader, 337 Mo. 977, 983, 87 S.W.2d 413, 416[5] (1935).

In reference to the so-called res gestae doctrine in general, defendants cite us to many cases repeating the well-worn phrases that whether a statement is admissible under the exception depends upon the particular facts in each case; whether the statement under those circumstances is admissible reposes within the trial court’s discretion; and an appellate court will not reverse the trial court’s ruling unless it appears the discretion was abused. E. g., Cummings v. Illinois Cent. R. Co., supra, 364 Mo. at 877, 269 S.W.2d at 117[9-11]. Apropos of these clichés, it is well to reconsult Meyers v. Smith, supra, 300 S.W.2d at 477: “But as the exponents of the rule have pointed out, particularly with respect to Missouri, such statements as ‘admissibility will be left in large measure to the discretion of the trial court’ are but empty, hollow phrases. ‘No reliance can be placed on these decisions further than to say that the court can, if it wishes to, review the ruling without any concession to the trial court, but, if it wishes to, may review it cursorily and refer to the judge’s discretion as a convenient resort, or a makeweight, or as a deciding factor where the evidence is obscure.’ 163 A.L.R., loc. cit. 94. It is the annotator’s position that the trial judge is not the final arbiter, that whether evidence is admissible as res ges-tae is a question of law which the appellate court may and should pass on as it does any other mixed question of law and fact. Likewise, the annotator is critical of the so-called rule, which he stigmatizes as an ‘apology,’ that ‘each case rests on its own peculiar circumstances.’ 163 A.L.R. loc. cit. 184.”

The statements of Hale as testified to by Messrs. Dean, Jones and Blevins were hearsay. They were post-accident statements used affirmatively as independent proof of the principal if not the only fact in issue, i. e., which vehicle was on the wrong side of the curve at the time of impact. So employed, the statements were not merely cumulative evidence but corroborative evidence [Hayes v. Kansas City Southern Ry. Co., 260 S.W.2d 491, 495 (Mo.1953)] which would be prejudicial to plaintiff (Meyers v. Smith, supra, 300 S.W.2d at 480) if they did not qualify under the spontaneous exclamations exception to the hearsay rule.

Collectively viewing the time-testimony of Mrs. Peterson, Rogers, Dean, Jones and Blevins, it would appear the statement allegedly made by Hale to Dean was spoken from 5 to 20 minutes after the collision, and that the statements reported by Jones and Blevins were uttered at least 15 to 35 minutes after the casualty. There is no evidence that Hale had made any statements before he spoke to Dean. During the 5 to 20 minutes that elapsed between the crash and the statement made to Dean, Hale was suffering from intense burns over most of his body, his hair and his clothing had been “burned off of him” and he “was scared he was goin’ to swallow his tongue.” Within “just a little bit” after he had gotten his tongue under control, Hale told Dean “she was goin’ too fast to make the curve and lost control of the car and that he tried to get out of the way but couldn’t.”

Solely upon consideration of the time that elasped between the impact and Hale’s utterance to Dean, we would be inclined to agree with the apparent holding of the trial court that the statement was a spontaneous exclamation. Some of the actual time that elapsed between the accident and the declaration was excitedly consumed in Hale’s being extracted from the fire and his concern about swallowing his tongue. Also, during some of that interval Hale was experiencing the initial shock effects of the casualty and his injuries which would serve to temporarily still reflective faculties and ability to speak. However, the opinions and conclusionary character of Hale’s statement (which we will discuss anon) lead us to the belief that the trial court erred in admitting the statement into evidence. Some opinions, as written, suggest a statement may qualify as a spontaneous exclamation but should, nonetheless, be excluded on the separate consideration that it consists of an expression of an opinion or a “conclusion of fact reached by reasoning from other facts.” Nevertheless, since an opinion is the drawing of inferences from known or assumed facts through the use of reasoning [Webster’s New World Dictionary of the American Language, College Ed., p. 1211; Wright v. Order of United Commercial Travelers, 188 Mo.App. 457, 464[5], 174 S.W. 833, 835[6] (1915)] and a conclusion is a “reasoned judgment,” [Webster’s New Collegiate Dictionary (8th Ed.), p. 234], the fact the statement constitutes an opinion or conclusion attests to a preexisting reasoned reflection and conscious analysis on the part of the speaker which is the antithesis of a true spontaneous exclamation.

Hale’s statement or statements to Blevins, as recounted by Jones and Blevins, were not in our view spontaneous exclamations. They were made at least 15 to 35 minutes after the accident, which was several minutes after Hale’s declaration to Dean and subsequent to the time Hale had overcome his excitement about swallowing his tongue. He had become “calm . like he wasn’t even injured [and] didn’t seem to be excited.” The totality of the circumstances surrounding the statements directed to Blevins, especially when they should be regarded as presumably inadmissible because of the hearsay rule, negate the idea they were made under the immediate and uncontrolled dominion of the senses and during the time when consideration of self-interest could not have been brought to bear through reflection or premeditation. Moreover, the initial reason for the utterances (i. e., the accident and resulting shock) and the statements were not so closely connected in point of time so as to be said to be spontaneous explanations of the real cause. In addition, structural differences between the statement allegedly first made to Dean and those thereafter directed to Blevins, illustrate a refinement in the latter utterances produced through reflection, reasoning and cogitation.

The pronouncement that utterances are not admissible under the res ges-tae if they are expressions of opinions or conclusions of fact reached by reasoning from other facts, is analogous to that which excludes testimony of in-court witnesses which expresses only suppositions, conclusions or opinions as to facts. Although res gestae utterances are not generally required to correspond with formal testimony in court, the statements should show that the speaker is disclosing facts observed by him as opposed to opinions, conclusions and suppositions. Moore v. St. Louis Public Service Co., 251 S.W.2d 38, 40[3] (Mo.1952) ; Sconce v. Jones, supra, 343 Mo. at 370, 121 S.W.2d at 781-782[4]; McKenzie Transport Leas. Co. v. St. Louis Pub. Serv. Co., supra, 349 S.W.2d at 373; Wiedanz v. May Department Stores Co., supra, 156 S.W.2d at 49[10, 11]; 31A C.J.S. Evidence § 421, pp. 1038-1039. Considerable confusion on this subject is engendered through false analogy. Examination of many cases which simply hold the statements admissible as part of the res gestae do so in the absence of considerations and objections that they were opinions or conclusions [e. g., Huston v. Hanson, supra n. 3, 353 S.W.2d at 579-580; Giles v. Missouri Pac. Ry. Co., supra n. 3, 154 S.W. at 855-856; Sculley v. Rolwing, 88 S.W.2d 394, 398 (Mo.App.1935); Campbell v. Gladden, 383 Pa. 144, 118 A.2d 133, 135[2] [3, 4] (1955)], while others refer to res gestae when the statements should really be excluded at utterances concerning agency or outside its scope [Atkinson v. American School of Osteopathy, 240 Mo. 338, 355[3], 144 S.W. 816, 821-822[6] (1912); Renfro v. Central Coal & Coke Co., 223 Mo.App. 1219, 1227-1228[4], 19 S.W.2d 766, 770[4] (1929)], or are self-in-culpatory statements by a party which are admissible as declarations against interest. E. g., Costello v. M. C. Slater, Inc., 220 S.W.2d 947, 953[7, 8] (Mo.App.1949).

The investigating highway patrolman described the asphalt surface of the curve at the accident site as being “wet” when the impact occurred. An assertion that a vehicle’s speed is “ ‘fast’ . . . is a relative term and hardly a statement of a fact” [Migneco v. Eckenfels, 397 S.W.2d 682, 686[6] (Mo.1965)], while describing the speed as “ ‘awful fast’ . . . was in the nature of a conclusion . . . and indefinite in its character” [Morgan v. Maunders, 37 S.W.2d 791, 793[1] (Tex.Civ.App.1930)], and “‘going too fast . . . was a mere opinion or conclusion.” Whitney v. Sioux City, 172 Iowa 336, 154 N.W. 497, 498[1, 2] (1915). Consequently, when Hale concluded “she was goin’ too fast,” compounded with “to make the curve,” he was expressing an opinion based on reasoning that the event, if so, was not due to the wet condition of the blacktop pavement, other conditions which may have existed in the road surface, or the other driver’s unexpected encounter with obstacles or the curve. Especially because the control or lack of control of a moving motor vehicle is usually something that only the operator thereof can sense or determine through awareness of the responses the machine makes to his physical manipulations, for Hale to add that “she . lost control of the car” would inject into evidence a conclusionary supposition which (as far as this record is concerned) he could not come by through his own perceptivity. Sconce v. Jones, supra, 343 Mo. at 370, 121 S.W.2d at 781-782. Hale’s reported concluding assertion “that he tried to get out of the way but couldn’t,” leaves one to wonder how he tried and why he was unsuccessful. This portion of the purported statement is kindred to Hale’s alleged statement repeated by Jones that “I did all I could do and then they hit me,” which is obviously a mere conclusion that invades the province of the jury. Gillis v. Singer, 86 S.W.2d 352, 358[11] (Mo.App.1935); Brown v. Adams Transfer & Storage Co., 31 S.W.2d 117, 121-122[6] (Mo.App.1930). An additional reason for excluding opinions and conclu-sionary utterances from the res gestae exception is that, when superficially considered, they have much too great a weight. “The various factors entering into the observation and self-persuasion of the speaker cannot be reproduced, and a jury is much too likely to shirk a judgment of its own in reliance upon his.” 163 A.L.R., supra, at 188.

The other trial errors complained of by plaintiff may not again occur on retrial and need not be considered here. For the aforesaid reasons the judgment is reversed and the cause remanded for a new trial.

All concur.

      . We judicially notice the geographical location of cities in the state and that the distance between Heeds Spring and Kimberling City is approximately nine miles. Griffin v. Doss, 411 S.W.2d 649, 651 (Mo.App.1967).

      . Before the witnesses testified concerning the statements allegedly made by Hale, an in-camera hearing was held to determine the admissibility of that testimony. In that hearing Dean, in describing Hale’s condition, stated: “Well, he was calm . . . I mean it was like he wasn’t even injured, was the type calm that he was.”

      . Cf. Huston v. Hanson, 353 S.W.2d 577, 580[1] (Mo.1962); Cummings v. Illinois Cent. R. Co., 364 Mo. 868, 877, 269 S.W.2d 111, 118 (1954) (first statement); Roach v. Kansas City Public Service Co., 141 S.W.2d 800, 804[10] (Mo.1940); Conley v. Berberich, 300 S.W.2d 844, 849-850[9, 10] [11] (Mo.App.1957); Sullivan v. Kansas City Public Service Co., 241 Mo.App. 56, 66, 231 S.W.2d 822, 826 (1950); Rooker v. Deering S. W. Ry. Co., 215 Mo.App. 481, 487-488, 247 S.W. 1016, 1018-1019 (1923); Giles v. Missouri Pac. Ry. Co., 169 Mo.App. 24, 34-35, 154 S.W. 852, 856 (1913).

      . Cf. Alberty v. Sunshine Biscuit Company, 321 S.W.2d 418, 422-423[4] (Mo.1959); Cummings v. Illinois Cent. R. Co., supra n. 3, 269 S.W.2d at 119 (statement subsequent to first); Sconce v. Jones, 343 Mo. 362, 371, 121 S.W.2d 777, 782[6] (1938); Leahey v. Cass Ave. & F. G. Ry. Co., 97 Mo. 165, 173, 10 S.W. 58, 60-61 (1888) (statements subsequent to first); Vaughan v. St. Louis & S. F. R. Co., 177 Mo.App. 155, 175-176, 164 S.W. 144, 151 (1914) (statements subsequent to first).


source: Caselaw Access Project

author: SIMEONE, Presiding Judge.

license: Public Domain

text:
    Laverne STOUT, Plaintiff-Respondent, v. CENTRAL NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 35388.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 11, 1975.
    Motion for Rehearing or Transfer Denied April 14, 1975.

      William R. Kirby, Carl I. Katzen, St. Louis, for defendant-appellant.
    James P. Holloran, St. Louis, for plain-ti f f-r espondent.
   SIMEONE, Presiding Judge.

This is an appeal by defendant-appellant, Central National Life Insurance Company from a judgment entered in the Circuit Court of the City of St. Louis on January 17, 1973, upon a jury verdict in favor of the plaintiff-respondent, Laverne Stout, in the amount of $12,007.40 for total disability benefits under an insurance policy issued by Central Life to Mrs. Stout. For reasons hereinafter stated, we affirm the judgment.

Since the appellant’s major contention on appeal is the alleged failure of plaintiff to present a submissible case, we will state the facts in the light most favorable to the verdict and judgment and give plaintiff the benefit of all reasonable inferences arising from the evidence, disregarding defendant’s evidence except where it favors plaintiff’s case. Brown v. Missouri Pacific Railroad Company, 510 S.W.2d 846, 848 (Mo.App.1974); Pogue v. Metropolitan Life Ins. Co., 107 S.W.2d 144, 149 (Mo.App.1937); Tenkhoff v. New York Life Ins. Co., 191 S.W.2d 1005, 1008 (Mo.App.1946).

This litigation began on April 18, 1972, when Mrs. Stout filed her petition in the Circuit Court of the City of St. Louis, seeking damages for total disability benefits under an income protection policy issued by the defendant. The petition, however, did not allege the corporate entity of the defendant, Central National Life. Issue was joined when the defendant admitted the “existance” [sic] of the policy and denied the other allegations. The answer did not contain any specific negative averment concerning the existence of the corporation. Trial commenced January 15, 1973.

Plaintiff, Laverne Stout, was a long-time employee of National Rejectors Company, having worked there as a “hand assembler” for some twenty-two years. She was a “hand assembler” of coin-receiving and dispensing mechanisms for vending machines. In her work, she assembled small parts using a screwdriver, small pairs of pliers and other tools. The jobs that she held or was required to do required the use of her hands. She was described by her supervisor as a “real good worker.” Mrs. Stout had an eighth-grade education, had done only “factory work,” had no clerical skills and had never been trained in any field other than factory work. Her jobs required manual dexterity.

In 1964, she applied for and was issued an income protection policy by the defendant-Central National, which provided for monthly benefits in the event of total disability in the amount of two-thirds of her salary, or $250.00 per month. The policy contained a provision waiving premiums during total disability. One of the provisions of the policy which is the subject of this litigation provided:

“The term ‘total disability’ as used in this policy means the complete inability of the Insured to engage in his regular occupation, except that if the Monthly Indemnity has been paid for twelve months in any period of disability, then for the remaining duration of such period of disability the term ‘total disability’ as used in this policy means the complete inability of the Insured to engage in any and every gainful occupation for which he is reasonably fitted.”

On February 26, 1968, and while the policy was in force, Mrs. Stout was injured when her automobile went over the yellow line in the highway and left the road and came to rest half-way in water. Mrs. Stout was rendered unconscious and when she awoke was “on my knees in the back seat, behind the drivers seat, half unconscious.” She was taken first to Jefferson Memorial Hospital and then to St. Luke’s Hospital in St. Louis. She was treated by her family physician, Dr. Harold E. Walters. Following this accident, Mrs. Stout was absent from work until June, 1968. She returned to work in June, but discontinued employment in September. Dr. Walters repeatedly made an effort to get her to return to work and did “send her back to work.” When she returned, she did “hand assembling,” but had “terrible pain” — it started up in “my neck and arms and shoulder and eventually worked down into my back.” There were many days she couldn’t go in to work. She continued to work until September, 1968, when she discontinued the job. She had applied for and received disability benefits until September 30, 1969, when they were discontinued by the defendant, Central.

Dr. Walters described Mrs. Stout’s injuries. In the accident she had been temporarily rendered unconscious and was brought to St. Luke’s Hospital, suffering from multiple abrasions and contusions of her head, right shoulder and left hand, and complained of soreness of her right shoulder and back. Following her discharge, she was treated by Dr. Walters and had over 100 office visits. Mrs. Stout suffered sprained, strained and partially torn muscles and ligaments of her neck, shoulder and back. She was placed on pain medication, muscle relaxant medication and given cervical traction. It was Dr. Walters’ opinion that Mrs. Stout had partially torn the muscles and ligaments in her neck and shoulder region, as well as in her low hack and that scar tissue developed — “[s]o when you put that type of injured tissue to increased activity or work or stretch, it doesn’t stretch . . . ” “[M]ore activity or movement tends to bring on more discomfort . . . ” Dr. Walters indicated that “increased activity or movement or increased muscle activity or strenuous activity causing the muscles to be stretched more will cause more discomfort.” Mrs. Stout testified that she had “terrible pain,” and when “I get up in the morning I hurt so bad in the lower part of my back that I walk stooped until after I take a darvon and sit in my chair with heat for an hour or maybe two hours, sometimes.”

Dr. Walters was of the opinion that her condition was directly attributable to the February accident and that her condition was permanent. Dr. Walters was asked whether he had an opinion “as to whether or not Mrs. Stout can hold down a job that requires manual dexterity, such as a hand assembler in a factory.” Dr. Walters answered:

“It would be my opinion she is not capable of performing any type of work activity that involves strenuous use of her arms, neck or back, which would involve bending, twisting, turning, such-as using the muscles that I have described that have been injured.”

This was so because “muscles that are the type of soft tissue she has in the muscles . . . become painful whenever they are subjected to this type of activity.”

On cross-examination, he testified that: “I think that Mrs. Stout is able to do certain things, she is able to get about and do certain things, and . . . that . she was [sic] capable of doing more sedentary types of work that are involved.” And on redirect examination, Dr. Walters was asked whether in “this type of work” [hand assembly work] Mrs. Stout is able to do any of “that type of work.” He replied: “I think that if she is involved in an assembly line or production work process where there is — and she would have to move rapidly and move all day long to keep up with a certain production quota, I don’t think she could possibly do that.”

Mr. Charles Salamone, a rehabilitation counselor with the Jewish Employment and Vocational Service, testified that the Division of Vocational Rehabilitation referred Mrs. Stout to his office to test whether or not she could be successfully employed and hold competitive employment. Mrs. Stout was given certain tests — Wechsler Adult Intelligence Scale, Purdue Pegboard test for dexterity and the Bender Gestalt test. It was found after a three-week evaluation that her level of intellectual functioning was in the “dull-normal” range, and her dexterity averages were “very, very low, well below normal” — in the two percentile, and that there were suggestions of “the presence of obsessive, compulsive features in her personality.”

Mr. Salamone concluded that: “It is this counselor’s impression that the client is unemployable in any type of setting at the present time. Such an impression is based on the fact that the client is unable to attend work on a regular basis due to her poor health. . . .”

To Mr. Salamone it was doubtful that Mrs. Stout could hold an accounting position and “highly doubtful” that she would be able to operate a switchboard.

In the latter part of 1969, Central National requested Mrs. Stout to be examined by Dr. E. Robert Schultz. His report concluded that: “I no longer feel that she is house confined. I would not think there is any neurological reason creating an incapacity to work. Certainly, she is not totally disabled.”

Thereafter, Mrs. Stout was informed by the company by letter that it was discontinuing disability payments and enclosed a check in final payment.

At the close of the plaintiff’s case and again at the close of all the evidence, Central moved for a directed verdict on the ground that plaintiff failed to make a sub-missible case of total disability; and at the close of all the evidence, Central also moved to dismiss, since no legal entity was sued, having failed to name the defendant as a corporation. The trial court overruled the motions, indicating that since the matter of capacity was not raised until after answer, the point was waived, and that since Dr. Walters said on direct examination that Mrs. Stout was totally disabled, a submissible case was made.

The jury returned a verdict for $12,007.-40 for damages, vexatious delay and attorney fees, and judgment was entered.

Defendant’s after-trial motion filed on January 30, 1973, was denied. On April 23, 1973, plaintiff was given leave to amend the caption of the petition by inserting after the words “Central National Life Insurance Company,” the words “a corporation.” And thereafter, defendant’s amended after-trial motion was also denied.

On this appeal, Central National contends that (1) the trial court erred in overruling its motion for directed verdict, because the plaintiff failed to prove by substantial evidence that she was totally and permanently disabled to engage in “any and every gainful occupation for which she was reasonably fitted”; and (2) the plaintiff failed to plead and prove the corporate entity of Central National, and hence a verdict against the “defendant” Central National Life Insurance Company was fatal.

Appellant vigorously contends in its argument that the answer of Dr. Walters to the effect that Mrs. Stout is not capable of performing any type of work which involves the strenuous use of her arms, neck or back — was not responsive to the question whether she could hold down a job that requires manual dexterity, such as a hand assembler in a factory. Central also contends that Mrs. Stout could do sedentary types of work, or mild labor, as maybe moving her arm on a switchboard.

The principal issue on this appeal is whether the plaintiff failed to make a sub-missible case to prove that she was totally disabled within the meaning of the policy, i. e., “the complete inability of the Insured to engage in any and every gainful occupation for which [she] is reasonably fitted.”

In determining whether the court erred in overruling the motion for directed verdict, we are governed by the rule which requires us to consider all the evidence viewed in the light most favorable to the plaintiff, to give plaintiff the benefit of all favorable inferences arising therefrom and to disregard the defendant’s evidence except insofar as it aids the plaintiff’s case. Tenkhoff v. New York Life Ins. Co., supra, 191 S.W.2d at 1008.

The issue of “total disability” has been before the courts in numerous cases. It is no longer a debatable question in this state that the provisions of a policy insuring against total disability are to be given a liberal construction and not a literal one. Pogue v. Metropolitan Life Ins. Co., supra, 107 S.W.2d at 149.

Although the parties have not referred us to any case construing the exact language contained in this policy — and our research has disclosed none — our courts have construed similar definitions of “totally disabled.”

It is well settled in this state that “total disability” does not mean that the insured be absolutely helpless or be inert or bed-ridden or house confined, but it is sufficient if it is shown that the infirmity renders the person unable to perform, in the usual and customary way, substantially all of the material acts of any occupation which his age, training, experience, education and physical condition would fit him for except for the infirmity. Rogers v. Metropolitan Life Ins. Co., supra, 122 S.W. 2d at 7-8, and cases cited therein.

Whether an insured suffers from total disability within the meaning of an insurance policy is ordinarily a question of fact. Rogers v. Metropolitan Life Ins. Co., supra, 122 S.W.2d at 9.

Numerous decisions have found that an insured was totally disabled within the meaning of the policy when the insured is unable to perform substantially all of the material duties of any occupation for which his age, training, experience, education and physical condition would fit him for except for the infirmity, even though the insured could perform some work and was not helpless.

Under these well-settled principles, we are convinced that Mrs. Stout made a submissible case, that the trial court did not err in overruling the defendant’s motion for a directed verdict, and that whether Mrs. Stout was unable to engage in any and every gainful occupation for which she is reasonably fitted was a question properly submitted to the jury.

Mrs. Stout had for some twenty-two years worked at National Rejectors, as a hand assembler for coin-vending machines. She had an eighth grade education, she had no clerical skills, and her work involved manual dexterity. After the accident of 1968, she had pain in her neck, arms, shoulder and back; some days she could hardly straighten up. Since the accident, she had remained under the care of Dr. Walters, whom she saw some 114 times prior to trial. Dr. Walters characterized the condition of her muscles as permanent, that no improvement was anticipated and that she was not capable of performing any type of work activity that involves strenuous use of her arms, neck or back. Dr. Walters testified that, although she is able to do “certain things” and is “capable of doing more sedentary types of work,” she could not “possibly do” “assembly line or production work.” Mr. Salamone testified that her intelligence is in the “dull-normal” range, that her dexterity averages are “very, very low, well below normal,” and that she is unemployable in any type of setting at the present time, because she is unable to attend work on a regular basis because of her health.

The test is not whether Mrs. Stout is capable of engaging in some other work, or is capable of doing some work such as operating a switchboard, housework or accounting. The test is whether she is unable to engage in any and every gainful occupation for which she is “reasonably fitted” or, in the language of the authorities, whether her condition renders her unable to perform, in the usual and customary way, substantially all of the material acts of any occupation which she would be able to engage in except for her infirmity. Under this test, there was ample evidence to submit the issue of total disability to the jury. Mrs. Stout was engaged in factory work for a great number of years; her factory work involved hand assembling and manual dexterity. Under the evidence adduced, she was unable or incapable of doing assembly line or production work, and because of her age, training, experience, education and physical condition, the jury could reasonably find that she was unable to perform her occupation.

In short, we believe there was sufficient evidence to submit to the jury the issue of whether she was unable to perform substantially all the acts of any “occupation” that she would be able to engage in except for her infirmity, or whether she was completely unable to engage in any occupation “for which she is reasonably fitted.”

Defendant places too much stress on the answer of Dr. Walters that Mrs. Stout is not capable of performing any type of activity which involves the strenuous use of her arms, neck or back. There was other evidence that she was incapable of performing substantially all of the acts of factory work involving hand assembling and manual dexterity.

Mrs. Stout was reasonably fitted to be a factory worker — a hand assembler. That was the principal business of her life; that was her trade, her craft, her occupation for which she was reasonably fitted, because of her experience, training, education and physical condition. There was sufficient evidence to submit the issue of total disability to the jury.

Defendant also contends that Mrs. Stout might be able to do mild labor. But this is not the test. The test is as stated above.

Defendant places reliance on Smith v. Metropolitan Life Ins. Co., 108 S.W.2d 995 (Mo.App.1937). That case is not dis-positive of the issues here. In Smith, the court held that, viewing only plaintiff’s evidence and all reasonable inferences therefrom, plaintiff “was able to and did perform his regular and usual duties as an employee of the Lead Company without any complaint as to disability.” There was evidence that plaintiff even worked “overtime.” The court in Smith pointed out that, in every case where judgment for a claimant was affirmed, there was evidence from which it could be reasonably inferred that the employee was able to perform his work only by virtue of the assistance of others or by the exercise of extreme, extraordinary and painful efforts involving grave risks of health and life.

In the case at bar, when plaintiff returned to work in June, 1968, she had “terrible pain” in her neck, arms, shoulder and back. She had a bad absentee record for the three or four months she attempted to work, because there were days when she could hardly “straighten up” and had headaches for which even prescription pain medication gave no relief. Her work was not acceptable. In September, her treating physician advised her to stay home from work. It is apparent to this court that such evidence supplies the very deficiencies for which judgment in Smith was reversed. See also Rogers v. Metropolitan Life Ins. Co., supra, 122 S.W.2d at 9, distinguishing Smith.

From all of the evidence, viewed in the light most favorable to the plaintiff and under the authorities of our Missouri courts, we hold that a submissible case was made.

Defendant’s second point — by not pleading the corporate entity of the defendant, the verdict against defendant was fatal — is without merit. Central relies on § 375.256, RSMo 1969, V.A.M.S., but that reliance is misplaced. Central did not object to the failure to plead its corporate status but answered by way of denial. In such instance, when a party desires to raise an issue as to the legal existence of a party or the capacity of a party to sue or be sued, he shall do so by specific negative averment. Rule 55.13, V.A.M.R. Furthermore, plaintiff sought and was granted leave to amend the caption of her pleading after judgment. The trial court permitted the amendment following the rule that leave shall be “freely given when justice so requires.” Rule 55.33; Siedler v. Tamar Realty Company, 491 S.W.2d 566 (Mo.App.1973); Weil Clothing Co. v. National Garment Co., 148 S.W.2d 586 (Mo.App.1941). See also Rules 74.30 and 74.31.

We have examined the entire transcript, read the briefs and authorities by the parties and conclude that (1) the trial court did not err in overruling the motion for directed verdict and in submitting the cause to the jury, and (2) there was no error in permitting an amendment of the petition to include the corporate entity of the defendant.

Finding no prejudicial error, we affirm the judgment.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . In answer to a question whether she could operate a switchboard or do typing or accounting, Dr. Walters answered: “I think as far as her activity is concerned, as far as her using the muscles of her body is concerned, I think that she is capable of doing mild labor, as, maybe, moving her arm on a switchboard, if it’s not too strenuous, or capable of doing more mild physical activity in a work area or work process.”

      . During the first twelve months of total disability, the term means “the complete inability of the Insured to engage in his regular occupation.” This provision is not in issue.

      . The usual definitions construed by Missouri courts have been: “totally and permanently disabled as the result of bodily injury or disease so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit,” Rogers v. Metropolitan Life Ins. Co., 122 S.W.2d 5, 7 (Mo.App.1938) ; and “unable to engage in any occupation or employment for wage or profit,” Burns v. Aetna Life Ins. Co., 234 Mo.App. 1207, 123 S.W.2d 185, 186 (1939).

      . See also Burns v. Aetna Life Ins. Co., supra, 123 S.W.2d at 191; Heald v. Aetna Life Ins. Co. of Hartford, Conn., 340 Mo. 1143, 104 S.W.2d 379, 383 (1937) ; Wiener v. Mutual Life Ins. Co. of New York, 352 Mo. 673, 179 S.W.2d 39, 42 (1944); Stoner v. New York Life Ins. Co., 90 S.W.2d 784, 793 (Mo.App.1936) ; Barton v. Metropolitan Life Ins. Co., 103 S.W.2d 889, 891 (Mo.App.1937); Pogue v. Metropolitan Life Ins. Co., supra; Gladney v. Mutual Life Ins. Co. of New York, 186 S.W.2d 538, 543 (Mo.App.1945) ; Tenkhoff v. New York Life Ins. Co., supra, 191 S.W.2d at 1010. See Annot., Total Disability or the Like as Referring to Inability to Work in Usual Occupation or in Other Occupations, 21 A.L.R.3d 1155, 1204-1207 (1968).
      The clauses construed by Missouri decisions —unable to engage in “any” occupation would seem to prevent recovery of the insured if he could engage in “any” occupation for compensation and would seem to be more favorable to the insurer than the clause contained in the policy here—complete inability to engage in any and every gainful occupation for which he is “reasonably fitted.”

      . Pogue v. Metropolitan Life Ins. Co., supra. In Rogers v. Metropolitan Life Ins. Co., supra, the insured’s “line of work” was mining. He was equipped for nothing but manual labor, had an impaired heart and suffered from lack of wind. Even though the insured was able to work on government relief projects, this court held that a sub-missible case was made. In Burns v. Aetna Life Ins. Co., supra, the insured suffered injury to his wrist while employed at a meat company. Although the insured could sell newspapers or run errands, whether he was totally disabled within the meaning of the policy was a jury question. In Brown v. Mutual Life Ins. Co. of New York, 140 S.W.2d 91 (Mo.App.1940), whether the insured, a secretary and stenographer, was totally disabled was a jury question even though, after suffering severe burns on her hands, arms and other portions of her body, she returned to her former job and was paid a “meagre wage” which her employer said “she does not earn” due to her physical injuries. In Katz v. Union Central Life Ins. Co., 226 Mo.App. 618, 44 S.W.2d 250 (1931), the insured, a farmer, presented a sub-missible case for recovery even though after incurring injuries—“resulting from a kick by a mule”—he had performed “small duties” about the farm such as milking one or two cows, handling small sticks of wood and driving his car to town.

      . “A trial judge has broad discretion to permit amendments to pleadings at any stage of the proceedings, even after verdict.” Siedler v. Tamar Realty Company, supra, 491 S.W.2d at 568.


author: WEIER, Presiding Judge.

text:
    Epps HILL, Jr., Plaintiff-Appellant, v. WAINWRIGHT INDUSTRIES, INC., Defendant-Respondent.
    No. 35856.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 18, 1975.
    Motion for Rehearing or Transfer to Court En Banc or Transfer Denied April 14, 1975.

      Joseph Langworthy, Pacific, for plaintiff-appellant.
    Roberts, Heneghan & Coffelt, Inc., James J. Virtel, St. Louis, for defendant-respondent.
   WEIER, Presiding Judge.

Following an award denying workmen’s compensation in part for the reason that claimant’s condition was not causally related to an accident or occupational disease, plaintiff filed suit for damages allegedly caused by the failure of his employer to furnish him with safe and sufficient tools and with a safe place to work. At the close of plaintiff’s case the court sustained a motion for directed verdict. From this judgment plaintiff appeals. We affirm.

We review the essential facts. Plaintiff, 36 years of age at the time of trial, had been employed by defendant Wainwright Industries, Inc. for eighteen years and normally worked as maintenance mechanic. In May of 1966 he was requested by Mr. Nelson Wainwright, President of defendant company, to construct two wooden die racks. Each rack consisted of four shelves, two feet wide by sixteen feet long, supported by vertical frames, four feet high and two feet deep. They were constructed by cutting two-by-four uprights to the proper length, laying them out on a concrete floor, and nailing on one-by-four inch cross members. After sufficient frames were made, they were set in a vertical position and two one-by-twelve inch boards, sixteen feet long, were then laid horizontally on the various cross members to form a shelf. After four shelves were positioned, a back of two four-by-eight foot pieces of plywood was attached and the entire rack then painted. The construction of two of these racks took place over a period of ten days. They were constructed in an empty tool room twenty-four feet by twenty-four feet, where they were to he placed. The tool room had a smooth concrete floor. To construct these racks, plaintiff was given a hand saw, a hammer, a square, and a rule, and he also borrowed a table saw from his foreman, Mr. Seaman. Wainwright had prepared a simple working sketch to indicate how he wanted the tool racks prepared. Plaintiff had one assistant working with him on the racks. No one told him specifically how to do the work.

In going about the construction of the two racks, plaintiff stated that he had to crawl about upon the concrete floor with his knees and frequently used his knees to press the boards down to get them in place in order to nail them in their proper positions. He said that he began to notice pain in his knees and legs on the first day that he worked on the project. His left knee then began to swell. He showed this to his foreman who didn’t have anything to say. Mr. Wainwright came by on a daily basis, but plaintiff did not complain to him of any trouble with his knees or legs.

Following the medical testimony indicating the causal connection between the use of plaintiff’s knees and subsequent operations and medical care, the trial court sustained defendant’s motion for directed ver-dice on three grounds: (1) plaintiff had not by substantial evidence of probative value proved actionable negligence against the defendant; (2) the evidence did not support any pleaded assignment of alleged, negligence; and (3) the evidence failed to show any breach of duty owed by defendant to the plaintiff. Plaintiff, on appeal, contends that he did make a submissible case and that the court erred when it seized upon the three grounds above described to sustain defendant’s motion for a directed verdict.

Generally, it is the duty of an employer to exercise ordinary care to fur-msh an employee with reasonably safe tools or appliances with which to perform the work, a reasonably safe place to work, and reasonably safe means and methods employed in performing the work. Miller v. F. W. Woolworth Company, 328 S.W.2d 684, 688[1] (Mo. banc 1959). It would seem to be clear from the evidence that there was no breach of either of the first two duties. Certainly plaintiff’s injuries were not caused by defective tools, and the only possible complaint with regard to the place he was furnished in which to do the work was that it had a concrete floor. In this respect there is no liability when the conditions of the place furnished to do the work are as obvious to the servant as they are to the master. The basis of such liability is really superior knowledge and the ability to rectify, and the duty to guard against injury from hidden dangers. McTurman v. Bell, 398 S.W.2d 465, 469-470[8-10] (Mo.App.1965). A review of the evidence does not indicate that there were any hidden dangers or defects in the floor of the room where plaintiff performed his work.

We then turn to the third basis of the liability, that is, the alleged failure of the employer to provide the plaintiff with a safe method of work. In this connection liability may be premised upon a method or practice which is inherently and unreasonably dangerous so that injury could be reasonably anticipated. Hightower v. Edwards, 445 S.W.2d 273, 276[6] (Mo. banc 1969). The evidence here does not indicate that the plaintiff was advised or required to use simple carpenter tools in any manner which was inherently dangerous. Another basis for the imposition of liability under this theory of negligence arises where the employer fails to provide a method of doing the work usually and customarily employed by ordinarily prudent persons in like work under similar circumstances, and the failure of the method to be reasonably safe causes injury to the employee. A “reasonably safe” mode of performance of any work means safe according to the usages and habits and ordinary risks of the business. Miller v. F. W. Woolworth Company, supra, 328 S.W.2d 684, 689[7] (Mo. banc 1959). Just as the evidence here fails to show that the sawing, fitting and nailing of lumber on a concrete floor is inherently dangerous, so, too, there is no proof of a deviation in this work from. the normal standard. No evidence indicated that the methods used were not the same as employed by ordinarily prudent persons in like work under similar circumstances, and we doubt that any could be produced.

The trial court did not err in sustaining defendant’s motion for a directed verdict. Judgment is affirmed.

DOWD and RENDLEN, JJ, concur.


author: KELLY, Judge.

text:
    John HULAHAN, Plaintiff-Respondent, v. John SHEEHAN and Paul Pelker, Individually, and as a Class Representing Laborer’s International Union of North America, No. 42, Defendants-Appellants.
    No. 35484.
    Missouri Court of Appeals, St. Louis District.
    March 18, 1975.
    Rehearing Denied April 14, 1975.

      Barnard, Baer, Lee Timm & McDaniel, Richard O. Funsch, St. Louis, for defendants-appellants.
    Ackerman, Schiller & Schwartz, Theodore F. Schwartz, Clayton, for plaintiff-respondent.
   KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis entered on a jury verdict awarding plaintiff-respondent $20,000.00 for injuries allegedly sustained when he slipped and fell on the steps of the entrance to the defendants-appellants’ Union Hall situated at 3710 Enright in the City of St. Louis. Plaintiff, a member of the Union, brought suit against John Sheehan, President, and Paul Pelker, business representative, individually and as representatives of a class constituting the entire membership of the Laborer’s International Union of North America, Local Union No. 42. At the close of the plaintiff’s evidence the motion of Mr. Sheehan and Mr. Pelker for a.directed verdict was sustained as to them in their individual capacities but denied with respect to them as representatives of the class. No appeal has been taken by the plaintiff to this court from that ruling of the trial court.

Plaintiff’s petition alleged that the defendant was an unincorporated labor organization whose membership consisted of Mr. Sheehan, president, Paul Pelker, business representative; that the named individuals are members of the Union and were acting for and on behalf and representing the Union; that there are also members of the Union, too numerous to bring them before the court, and that the named individual defendants will adequately and fairly ensure adequate representation of all of the members of the Union; that the cause of action is brought against the named defendants, individually, and as officers, agents and members of the Union and as representatives of a class as to which there is a common question of law and fact affecting the several rights in which a common relief was sought; that on December 23, 1969, the defendants owned, maintained and controlled the premises at 3710 Enright in the City of St. Louis, Missouri, which they used as a Union Hall, and that there were certain concrete steps on the front of said Union Hall building; that on the date aforesaid the steps and common areaway fronting the said building were not in reasonably safe condition for the public, and more particularly for the plaintiff, in that the defendants’ carelessness and negligence caused and permitted a patch of ice to remain on the area fronting the building for a long period of time, which ice was formed from rain water, snow and moisture falling thereon from the elements; that the defendants undertook to remove said ice and moisture that had fallen on the entire area-way thereof, but carelessly and negligently failed to remove the patch of ice and by reason thereof the said area was not reasonably safe; that the defendants knew, or by use of ordinary care should have known, of the existence of this condition, but that defendants failed to use ordinary care to remedy this condition and to remove the ice and slippery condition on said areaway fronting its building, and that on said date as the plaintiff was exiting from defendants’ said premises as a direct result of the carelessness and negligence of the defendants he was caused to slip and fall on the ice and as a direct result thereof sustained injuries and damages. Plaintiff thereafter alleged his injuries and damages which are not in issue on this appeal and shall therefore not be set forth in this opinion.

Defendants’ Answer was a general denial of each and every allegation set out in plaintiff’s petition and by way of an affirmative defense they alleged contributory negligence on the part of the plaintiff.

With the pleadings thus framed, the cause came on for trial and at the conclusion of all of the evidence the plaintiff submitted his case to the jury in an MAI No. 22.04 modified instruction for use in a “sidewalk defect” case as follows:

“Your verdict must be for plaintiff if you believe:
First, defendants undertook to remove snow and ice off of the steps of the common areaway fronting the defendants’ building, that is (sic) doing so permitted a patch of snow and ice to remain on said steps, and as a result the said steps were not reasonably safe for the public; and
Second, defendants knew or by using ordinary care should have known of this existing condition; and
Third, defendants failed to use ordinary care to remedy it; and
Fourth, as a direct result of such failure, plaintiff was injured, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.” (Emphasis supplied).

Instruction No. 4 was defendants’ contributory negligence instruction submitting plaintiff’s failure to keep a careful look out.

Defendants’ first point on appeal is that the trial court erred in overruling the defendant’s motion for a directed verdict at the close of all of the evidence because: (1) the plaintiff failed to prove that the defendants cleared the steps in a negligent manner or in any way increased the natural hazard of the ice or snow and (2) the evidence failed to establish that a patch of ice was the direct and proximate cause of plaintiff’s fall because his evidence as to the cause of his fall was vague and insubstantial and submission of that issue invited the jury to speculate and conjecture.

Viewing the evidence in a light most favorable to the plaintiff and affording him all favorable inferences which might properly be drawn from the evidence by the jury, Zipp v. Gasens Drug Store, Inc., 449 S.W.2d 612, 616 (Mo.1970), the jury could have made the following findings of fact. The defendants owned a Union Hall at 3710 Enright Avenue when the plaintiff, a member of the Union, had occasion to go to the Union Hall on December 23, 1970, at approximately 12:30 p. m. on some “business.” The previous night and during the day there was a general condition of sleet and snow throughout the metropolitan St. Louis area of which the plaintiff was well aware. At about 8:00 a. m. Milton Haefner, a fellow union member, was directed by Paul Pelker, a business representative of the Union, to clean the stone steps from the public sidewalk to an entrance into the Union Hall of the ice and snow which had accumulated there. Mr. Haefner, broom in hand, swept a path, estimated to be between 4 to 10 feet in width, along the west side of the five stone steps leading to the Union Hall getting most of the snow off of the area of the steps when he swept. In all, the steps were about 30 feet in length, and snow was piled up along both sides of the pathway Mr. Haefner had swept. When he finished sweeping Mr. Haefner put some fertilizer — a chloride — on the swept portion of the steps for the purpose of melting any snow or ice remaining thereon. He did not use salt because they had none at the Union Hall. He knew that if the temperature rose the fertilizer would cause the ice and snow on that portion of the steps he had swept to melt and if the temperature then went down again below the freezing point of the water and fertilizer mixture, ice would again form on the steps. During the day Mr. Haefner returned to look at the steps a couple of times and discovered that the wind, which had been blowing hard, had drifted some of the snow back on the steps and quite a bit of the snow had blown back on the pathway of the steps he had swept. There is no evidence as to the exact times prior to the occurrence here in issue that Mr. Haefner reinspected the steps. In defendants’ case their counsel developed on direct examination of Mr. Haefner, a member of the Union and of the class of defendants, that Tony Pelker or one of the business agents had the authority to tell Mr. Haefner to clean the steps of snow and that Paul Pelker was an officer of the Union. On cross-examination of Mr. Haefner it was also developed, without objection, that Mr. Haefner cleaned the steps at the direction of Paul or Tony Pelker, that both of these men were officers of the Union and had the authority to tell him to do work around the Union Hall. The plaintiff arrived at the Union Hall in a cab. The weather was bad because it had been sleeting and snowing but he could not recall whether it was doing so when he arrived at the Union Hall. He ascended the steps by means of the path swept by Mr. Haefner. The steps looked like they were cleaned off and looked all right to him for him to walk on and where the path had been swept it was not then covered with snow. His business discussion with Mr. Pelker consumed about one hour. Sometime during this conversation his wife and son came to the Union Hall to get him and take him home. Mrs. Hulahan and the son entered the Union Hall by way of the same pathway the plaintiff had, and although she noticed the piles of snow at each side of the pathway she ascended the steps on a path wide enough to walk on without being conscious of any accumulation of snow or sleet thereon at that time. When plaintiff and Mr. Pelker concluded their “business” discussion, the Hulahan family prepared to leave for their home. Mrs. Hulahan and the boy preceded the plaintiff out of the Union Hall and onto the steps. Plaintiff and Mr. Pelker followed and continued their conversation as they proceeded down the hallway of the Union Hall until they came out the entrance of the Union Hall. Plaintiff walked to the steps and while in the process of so doing he and Mr. Pelker were talking. Prior to starting down the steps the plaintiff looked at them and they looked all right to him. “They looked good enough to come up and they looked good enough for me to go down.” The next thing he knew his feet went out from under him and he fell as he started stepping down to the first step. He landed on his back and slid down to the bottom of the steps. He described the occurrence as almost like a somersault — his feet went out from underneath him and into the air. He did not see what had caused him to fall. Mrs. Hulahan and the boy were a couple of steps below him at the time he fell and she did not see what caused him to fall, but heard him groan and when she turned around she , observed him lying on his back almost at the very bottom of the steps, with his head and back at the third or fourth step and part of his body on the landing. Mr. Pelker testified that he walked as far as to the outside door of the Union Hall with the Hulahans and observed Mrs. Hulahan and the boy walk down the steps ahead of the plaintiff. Mr. Pelker, who was at that time approximately five feet behind the plaintiff, testified that the plaintiff bade him goodbye, started to walk down the steps and all of a sudden “he was lying down.” He did not see the plaintiff slip but did see him fall after he had stepped on either the first or second step from the top. The snow had been cleaned from these two steps, according to Mr. Pelker, but he did not know what the plaintiff had slipped on nor did he, after plaintiff fell, have occasion to see what might have caused plaintiff to slip and fall. He did, however, see patches of ice in the immediate area where the plaintiff slipped and fell. On cross-examination Mr. Haef-ner testified that he got practically all of the snow off when he swept the pathway down the steps, but: “After all, with fresh snow like that and with tracks on it, you have to leave a little bit.”

Defendants argue in this court that the only theory which would permit the plaintiff to recover is the negligent removal of snow and ice from the steps and that his evidence, taken in its most favorable light, did not give rise to any inference that the defendants were negligent in this respect. In support of their position they cite Woodley v. Bush, 272 S.W.2d 833 (Mo.App.1954), Krause v. Laverne Park Ass’n., 240 S.W.2d 724 (Mo.App.1951) and Root v. Henry, 395 S.W.2d 280 (Mo.App.1965). Plaintiff takes the position that the defendants have misconstrued his theory of the case, that he has no quarrel with cases cited by the defendants but that they do not apply here. His theory is that the defendants attempted to clear the steps of ice so that they thereby led persons using the steps, and in particular the plaintiff, to believe that the steps were reasonably safe for normal use when in fact the steps contained patches of ice and snow and were thereby dangerous. Plaintiff cites no authorities to support his position in this court. He is satisfied to distinguish the authorities cited by the defendants.

In an action to recover damages for personal injuries resulting from negligence, plaintiff must produce evidence that the defendant was guilty of negligence and that such negligence directly contributed to cause the injuries for which he seeks compensation before he is entitled to a judgment. Luettecke v. City of St. Louis, 346 Mo. 168, 140 S.W.2d 45, 49[8] (1940). “Negligence,” as that term was used in Luettecke, means “actionable negligence,” viz., the existence of a duty on the part of the defendant to protect the plaintiff from injury; the failure of the defendant to meet that duty; and injury to the plaintiff from the defendant’s failure to perform that duty. Stevens v. Wettereau Foods, Inc., 501 S.W.2d 494, 498[7] (Mo.App.1973).

The parties tried this case in the trial court on the theory that the plaintiff was a member of the public when he slipped and fell on the steps of the Union Hall. Plaintiff submitted his case to the jury on that theory and defendants have not at any time contested this status. In reviewing this case we will review it on that basis since we may not review a case upon a theory different from that upon which it was tried nisi. Herrick Motor Co. v. Fischer Oldsmobile Co., 421 S.W.2d 58, 63[5] (Mo.App.1967).

A member of the public is an invitee just as is a business visitor. Restatement (Second) of Torts, Sec. 332 (1965). While a landowner is not the insurer of the safety of the premises, where he invites the public to use said premises he must exercise ordinary care to keep the premises in a reasonably safe condition. In Evans v. Sears, Roebuck & Co., 104 S.W.2d 1035 (1937) this court held that an invitation to enter premises carries with it the duty towards the persons invited to provide reasonably safe means of ingress and egress, and where the invitation is to a particular part of the premises, there is a duty to maintain the approaches thereto in a reasonably safe condition. Again in Corley v. Andrews, 349 S.W.2d 395, this court, following Evans, supra, 1. c. 398[1], said:

“A landowner is not the insurer of the safety of his premises, but where he invites the public to use said premises, he must exercise ordinary care to keep the premises in a reasonably safe condition.”

In Corley, supra, a guest at a motel slipped on some ice on a sidewalk between his cabin and the restaurant operated in conjunction with the motel after an agent of the motel operators had spread salt upon the sidewalk to melt some ice and then returned fifteen minutes later and swept off the sidewalk the ice which had melted. The salting of the sidewalk occurred at about 5 :00 a. m.; the sweeping of the sidewalk 10 to 15 minutes later; and plaintiff slipped and fell sometime between 6:30 and 6:45 a. m. Under this evidence it was held that the question as to whether the motel and restaurant owners breached their duty to the plaintiff to use ordinary care to keep the sidewalk between the motel and the restaurant portion of their premises in a reasonably safe condition by removal of the ice and snow was a jury question.

Woodley v. Bush, supra, was a landlord-tenant case which held that the landlord is not held liable to a tenant for injuries caused by a natural accumulation of ice and snow general to the community. It never reached the issue with respect to the duty of the landlord when he assumes the task of cleaning the walks. Krause v. Laverne Park Ass’n, supra, involved a situation where a patron of a restaurant fell on a public sidewalk. That case was decided on the grounds that there was no evidence that the agents of the defendant had done any chopping of any sort at the place on the public sidewalk where the plaintiff fell. Root v. Henry, supra, was also a landlord-tenant case which was decided on the refusal of this court to extend the doctrine of liability for negligent repair by a landlord to the cleaning or otherwise making icy sidewalks passable, which would in effect make him the guarantor of the safety of the person using the walk when it was obvious that the best of efforts may fail to remove all slickness or patches of ice upon which the tenant might slip and fall. The Missouri Court of Appeals, Springfield District, in O’Connell v. Roper Electric Company, Inc., 498 S.W.2d 847, 851 (1973) fended-off the contentions of the defendant there that the owner or occupier of land abutting a public right-of-way had no duty to use reasonable care to keep the abutting right-of-way clear of ice and snow and that the principles found in landlord and tenant cases should govern any duty owed the plaintiff. The court, l. c. 851, said:

“We have no quarrel with the rules of law enunciated in such cases but deem such rules do not apply to the instant case because they do not apply to the liability of an abutting property owner or occupant for an injury sustained on that part of a public right-of-way which the abutting owner or occupier makes a special use thereof for his own benefit and convenience.”

We conclude that the principles of Evans v. Sears, Roebuck & Co., supra, and Corley v. Andrews, supra, are controlling and so hold.

Defendants, however, further contend that the evidence failed to establish that a patch of ice was the direct and proximate cause of plaintiffs fall and was so vague and “insubstantial” that the submission of this issue to the jury invited the jury to speculate and conjecture as to the cause of the plaintiff’s fall. They argue that the plaintiff’s testimony was that he did not know what caused him to slip and fall, or whether he fell on the first or second step; that Mr. Pelker did not know what caused the plaintiff to slip.

Defendants do admit that the plaintiff testified that he slipped as he was going to take the first step. Mr. Pelker testified that after the plaintiff slipped and fell down the steps he observed patches of ice and snow on the first and second steps in the area where the plaintiff fell. We conclude that in the absence of any evidence to account for the plaintiff slipping and falling at the time and place there is substantial evidence from which a jury could, without conjecture and speculation, find that the patches of snow and ice on the steps were the cause of plaintiff’s fall.

Defendants rely on McClure v. Koch, 433 S.W.2d 589 (Mo.App.1968), a case involving a fall by plaintiff on a ramp leading from a parking lot to a sidewalk in front of a store. However, we do not believe the holding in McClure controls here, for there the court found that there was an absence of any evidence that the ramp on which the plaintiff fell was wet or that there was any foreign material of any kind thereon to account for what might have caused her to fall. Furthermore, the defendant proprietor of the grocery and meat store who did not see her fall but came upon the scene immediately thereafter, examined the ramp where she fell and observed nothing on it to account for her falling. He examined the ramp and found no foreign substances on it. In addition to the foregoing, and although not a factor in its holding, the court said, l. c. 594:

“There is another factor in this case on which we do not rule but we think it deserves comment. Plaintiff in her testimony equivocates as to the cause of her fall. As her testimony shows, she assumed she slipped and then she said that she slipped because her ankle turned. Again she said T think I slipped.’ Finally saying that she did not know why she slipped because it happened so fast and then she speculated that she must have slipped because her ankle turned. This is far from being substantial evidence to show that the slope of the ramp was the cause of her fall.”

There is no equivocation here and there is evidence of patches of ice and snow on the steps on which plaintiff slipped.

Defendants also cite Willoghby v. Safeway Stores, 397 S.W.2d 748 (Mo.App.1965), a case in which the plaintiff fell over a wrinkle in a rubber floormat in defendant’s store and a judgment in her behalf in a court tried case was reversed. The question before the court in Willoghby was, l. c. 751: “whether plaintiff has sustained her incumbent burden of proof to support her pleaded allegation that the floor mat was in an unsafe condition by adducing a preponderance of credible evidence to show the presence of a wrinkle in the rubber mat prior to and at the time she stumbled on it and fell.” Finding that there was nothing in her testimony to establish this element of her case the court remarked about her failure to see a wrinkle in the mat prior to her fall and the lack of any such evidence by any other witness that there was a wrinkle in the mat prior to her fall. It is apparent from the evidence that the wrinkle in the mat may well have been occasioned by her fall. There is no way that we could conjecture that the patch of snow and ice on the steps could have been occasioned by the plaintiff’s fall here. Willoghby did recognize, however, that circumstantial evidence might have been used to establish the missing essential element of her case and that such circumstantial evidence need not have the quality of absolute certainty, although proof by circumstantial evidence to supply it would have had to be sufficient to establish the desired inference with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn and to rise above the stature of guesswork, speculation or surmise.

Unlike McClure, supra, there is here no equivocation on the part of the plaintiff concerning the cause of his fall. There is no evidence that he might have turned his ankle. Rather it is admitted by the defendants’ fellow member, Mr. Haefner, that he did not get all of the patches of ice and snow off the steps and Mr. Pelker confirms that. And unlike Willoghby we conclude that there is sufficient circumstantial evidence that the plaintiff’s fall was occasioned by the patches of ice and snow on the steps which were there prior to plaintiff’s slipping and falling. We hold that the plaintiff made a submissible case.

Defendant’s second point, that the trial court erred in reading to the jury the plaintiff’s verdict director, Instruction No. 2, because it failed to submit to the jury the question of agency is, in our opinion, likewise without merit. The thrust of defendants’ argument is that because their Answer contained a general denial, the issue of agency was in the case. They then argue that the evidence was that Mr. Haef-ner, at the time of the occurrence, was employed as a laborer by the Bank Building and Equipment Company and working on a new building which was being built at the rear of the Union Hall. They admit in their brief that Mr. Pelker was the only union member who had authority to tell Mr. Haefner to sweep the steps. They contend that the question of who was the employer of Mr. Haefner was a disputed issue, an instruction submitting the issue of “scope and course of employment” should have been given and the failure of the court to instruct on this issue constituted error. Plaintiff, on the other hand, argues that he did not plead the question of agency.

Disposing of the defendants’ contentions, there is no question from the evidence that plaintiff’s theory was that it was the defendants as an unincorporated association who owned the premises and occupied the Union Hall and they, as such, were burdened with the duty to exercise ordinary care to keep the premises in a reasonably safe condition for invitees who might venture thereon; that one of the members of the Union, Mr. Haefner, attempted to clear the steps of ice and snow but in doing so failed to remove some patches of ice and snow from the steps and thereby led persons using them, in particular the plaintiff, to believe the steps were reasonably safe for normal use when in fact they were not, but were dangerous by reason of the patches of ice and snow aforesaid. Whether Mr. Haefner was employed by Bank Building and Equipment Company at the time of this occurrence is wholly immaterial and irrelevant to the issues of this case for at no time did plaintiff contend either in his pleadings or his proof that this was the theory of his case. The evidence is uncontradicted that at the time Mr. Haefner swept the steps of the Union Hall he did so as a member of the Union pursuant to the directions of a business representative and officer of the Union — not as an agent for the Bank Building and Equipment Company. Mr. Haef-ner, by reason of the class action, was a party defendant in this case, and the real gist of the basis for vicarious liability of the class in this case is whether the defendants as a class may be held liable for the negligence of the unincorporated labor organization which was the owner of the Union Hall. While there is no direct evidence in support of the plaintiff’s allegation that the defendants are members of an unincorporated labor organization, the defendants have not preserved that question for review in this court. “Generally labor unions are voluntary unincorporated asssociations, . . . ” 48 Am.Jur.2d Labor and Labor Relations, § 57. “The general rule deducible from the cases which have passed on the question is that the members of an unincorporated association are engaged in a joint enterprise, and the negligence or fault of each member in the prosecution of that enterprise is imputable to each and every member . ” 6 AmJur2d Associations and Clubs, § 31. The record in this case reveals that the plaintiffs evidence established through Mr. Paul Pelker, a union representative and officer, that it was he who directed fellow-union member, Mr. Haefner, to sweep the steps of the Union Hall. However, it was the defendants’ counsel during the defendants’ case who called Mr. Haefner to the stand and developed from him on direct examination that he was a member of the Uniqp, that Paul Pelker was an officer and business representative of the Union who had the authority to tell him to clean the steps and to do work around the Union Hall. On cross-examination the following testimony of Mr. Haefner was elicited:

“Q. Now did you clean the steps on the direction of Mr. Pelker, Paul Pel-ker?
A. Paul or Tony had the authority to tell me to do the work around there.”

With the record in this condition we conclude that the vicarious liability of the defendants was never seriously contested by the defendants. In their motion for new trial it is apparent from a reading of same that the objection lodged against Instruction No. 2 assumed that there was a dispute in the case relative to Mr. Haefner’s agency. We hold that there was not and the holding in Terry v. Sweeney, 420 S.W.2d 368, 376[9] (Mo.App.1967) that it is not necessary to define “scope of employment” in a verdict directing instruction where the question of agency was not a contested issue is controlling here.

Defendants’ third, and final point, is concerned with the “insurance question” asked by plaintiff’s counsel during the voir dire examination of the panel prior to selection of the jury to try the cause. A foundation was laid in chambers for the propounding of the question to the jury and it was there established that the name of the carrier was United States Fidelity and Guaranty Company. The usual objection to the inquiry was made and overruled but plaintiff’s counsel was given the usual warning that the question had to be interspersed with other questions so as not to emphasize the nature of the subject matter of the question. During the voir dire, and after plaintiff’s counsel had made inquiries as to whether any member of the jury panel or any member of their immediate family had made any claims for damages, and developed from each juror who indicated that he or she, or a member of his or her immediate family had done so, the nature of the claim, how long ago it happened, whether it was in suit and whether that fact would prevent the juror from giving either party to the case a fair trial, immediately upon the conclusion of this line of inquiry, the plaintiff’s counsel asked:

“Is there any member of the panel, or any member of their family, that has a financial interest in or is employed by United States Fidelity and Guaranty Insurance Company?”

Defense counsel immediately requested permission to approach the bench and, out of hearing of the jury, moved for a mistrial and discharge of the jury, on the grounds that counsel had injected the word “insurance” into the title of the defendants’ insurance carrier. The trial court denied the motion for mistrial but admonished plaintiff’s counsel “to leave well enough alone.” Counsel then stepped down from the bench and plaintiff’s counsel never obtained any answer to the question from any of the jurors but pursued a line of questioning foreign to the subject without any explanation whatsoever.

Defendants argue that the question as asked was in total disregard of the trial court’s earlier ruling in chambers, that plaintiff’s counsel knew the correct corporate name of the defendants’ insurer and that to permit counsel to disregard the trial court’s ruling relative to the phraseology of the “insurance question” would be to condone the bad faith conduct of counsel. Plaintiff’s counsel replies that it was a mere slip of the tongue, a good faith error and in no way intentional, and the real question is whether defendants were thereby prejudiced.

While the “insurance question” has been a source of travail for many year, it is the established policy of this state that in a proper case the question may properly be addressed to the members of the jury panel in voir dire examination. It would serve no purpose to support this statement with citations. Whether, when in the propounding of the question to elicit from the members of the jury if they or some members of their immediate families have a financial interest in, or are employed by some insurance company, which is conducting the defense of a law suit, the term “insurance” is inadvertently injected into the corporate name of a company which is in fact engaged in the insurance business but whose name would not so indicate, clearly constitutes error so prejudicial as to require a mistrial and discharge of the jury is, in our opinion, best left to the discretion of the trial judge present at the time, except in those unusual cases where the record clearly demonstrates an abuse of discretion or a deliberate course of conduct on the part of counsel to inject into the case the fact that the insurance company, and not the defendant, is the real party who stands to gam or lose, dependent on the outcome of the case. We believe that this approach to the question is in line with McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361, 367[5] (banc, 1952) where categorizing Transit Casualty Company as an insurance company was held improper, but not to require a mistrial. We rule this point against defendants.

Having disposed of each of the defendants’ contentions, we affirm.

SMITH, C. J., and STEWART, J., concur.

      . We do not consider the question whether a member of an unincorporated association or club who has suffered damages to his person, property, or reputation through the tortious conduct of another member of the association may bring suit against the association or club, or his fellow member for said damages because it is not preserved for review. See: Goins v. Missouri Pacific System Federation of Maintenance of Way Employee Union et al., 272 F.2d 458, 460[2] (8th Cir. 1959); West’s Digest Associations ; 6 Am.Jur.2d Associations and Clubs, § 31; Anno. 14 A.L.R.2d 473. Contra: Marshall v. International Longshoremen’s & Warehousemen’s Union, 57 Cal.2d 781, 22 Cal.Rptr. 211, 371 P.2d 987 (1962).