text:
    Elmer GOODMAN and Earlene Goodman, Plaintiffs-Appellants, v. FIRMIN DESLOGE HOSPITAL, a Division of St. Louis University, Inc., et al., Defendants-Respondents.
    No. 35843.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 8, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Hullverson, Hullverson & Frank, James E. Hullverson and E. Lemoine Skinner, III, St. Louis, for plaintiffs-appellants.
    Robert E. Keaney, Patrick F. McLaughlin, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, H. J. Schmit-tling, St. Louis, for Firmin Desloge Hospital.
    Robert G. Burridge, Stuart M. Haw, Jr., Anderson, Gilbert Wolfort, Allen & Bier-man, St. Louis, for Drs. Schweiss and Kaiser.
   KELLY, Judge.

Elmer Goodman and Earlene Goodman brought this action against the defendants in the Circuit Court of the City of St. Louis in two counts. In Count I Elmer Goodman sought $600,000 damages for injuries he allegedly sustained by reason of medical malpractice suffered during and after heart surgery performed upon him in the defendant Hospital. In Count II Earlene Goodman, Elmer’s wife, sought $250,000.00 for loss of services and consortium. The case was tried to a jury which returned verdicts for all defendants. A timely motion for new trial was filed, heard and overruled, and this appeal followed.

Because of the nature of the points for review presented to this court we provide here a brief statement of the facts of the case and subsequently a more thorough recitation of facts under each point when they have a bearing on the issues presented.

Elmer Goodman, a 47 year old married man, on June 5, 1970, underwent a surgical procedure known in the medical profession as a coronary artery by-pass grafting operation at the Firmin Desloge Hospital — hereinafter “Hospital” — performed by Dr. George C. Kaiser. The anesthetist during this surgery was Dr. John F. Schweiss. Dr. Kaiser is a professor of Surgery at St. Louis University and Director of the Cardiovascular Intensive Care Unit at the Hospital. Dr. Schweiss is Chairman of the Department of Anesthesiology at the St. Louis University and Chief Anesthesiologist at the Hospital and also at the Cardinal Glen-non Hospital. St. Louis University operates this Hospital. Plaintiffs’ theory of negligence as to Dr. Schweiss was that during the course of preparing Mr. Goodman for the surgical procedure he had negligently struck and injured Mr. Goodman’s left median nerve during the insertion of a metal needle into Mr. Goodman’s left wrist. The negligence submitted against Dr. Kaiser was that he failed to recommend any tests, or treatment for the damage to Mr. Goodman’s wrist except exercise with a rubber ball. Plaintiffs submitted their claim against St. Louis University, of which the Hospital is a division, on the grounds that both doctors were employees of the University, acting in their respective capacities as anesthesiologist and surgeon and within the scope and course of their employment, at the time they were guilty of the negligence of which plaintiffs complained.

Appellants’ first point is that the trial court erred in not granting them a new trial because one of the trial jurors intentionally failed to disclose on voir dire examination her prior involvement as a defendant in lawsuits for personal injuries. We conclude that the trial court did not abuse its discretion under the facts developed at a post-trial evidentiary hearing and finding that the juror had not intentionally or willfully concealed the fact that she had been a defendant in a lawsuit arising out of an automobile collision occurring in November of 1960.

The law is well settled in Missouri on this issue and the constitutional right of every citizen to a trial by a fair and impartial jury, and on the duty of a juror, on voir dire examination, to fully, fairly and truthfully answer all questions directed to said juror testing the juror’s qualifications to sit in judgment so that the parties may intelligently exercise those challenges afforded them by law. The cases supporting this thesis are too numerous to cite. This rule applies whether the questions which went unanswered or which were not truthfully answered were directed to the panel generally or to the individual juror. A juror’s intentional concealment of a fact material to her qualifications may require the granting of a new trial. In the final analysis, however, the question of what result should follow the failure of the juror to correctly answer a question touching her qualifications depends upon whether she was guilty of an intentional concealment. “Primarily, the determination of that question must be left to the sound discretion of the trial court.” Beggs v. Universal C.I.T. Corporation, 387 S.W.2d 499, 503[3, 5, 7] (Mo.banc 1965). The exercise of this discretion by the trial court is nevertheless subject to judicial review and where the appellate court concludes that an abuse of discretion unmistakably appears, it is the duty of the appellate court to reverse the trial court’s ruling.

The juror against whom this charge of intentional concealment is levelled is a married woman, 48 years of age at the time she testified at the post-trial hearing, who had a 9th grade education in the school system of the State of Mississippi, and whose employment experience was that of a shirt presser in a laundry which she had left 13 years previously when she became pregnant, and who had also worked for a time in a neighborhood confectionary. She came to St. Louis from Mississippi after her marriage and had lived at the same address for the past 15 years. She testified that she did not recall the lawyers on both sides, while selecting the jury in this case, inquiring if any member of the jury had a lawsuit, or been sued, or gone to court in a lawsuit. She admitted that she had a lawsuit arising out of a collision with a Mr. Tucker on Easton and Goodfellow in 1960, but testified that she had forgotten it until someone called her after the trial of this case and asked if she remembered having this accident. She replied, “Yes!” to this post-trial inquiry. She said she had forgotten about the accident and this telephone call jolted her memory. She did not remember all the details of the two trials, one in the Magistrate Court in May, 1961, and the appeal from the Magistrate Court judgment to the Circuit Court on November 20, 1962, although she did remember appearing in circuit court for a jury trial and that a judgment was entered against her. She also remembered seeing a doctor following the collision but did not remember whether she recovered any money for any injuries arising out of that accident. She was vague about some of the details because her husband took care of those. She denied any intention to conceal from the trial court or the lawyers this experience and that she was aware that this question had been asked during the voir dire examination of the jury.

The attorney who represented this juror in the case arising out of the 1960 collision also was called as a witness at the post-trial hearing and testified from his memory and an office “expenditure card,” because the balance of his file had been closed and destroyed. According to his recollection this juror had employed his employer to pursue a personal injury claim against the driver of the other car involved in the automobile collision of November 11, 1960, although his employer did not ordinarily represent insurance companies and defendants in this type of litigation. He had no recollection of trying the case in Magistrate Court but did recall the Circuit Court trial. He could find nothing in his records to indicate that the judgment entered against this juror in the Circuit Court had been satisfied, but his records did show that the juror had settled her claim, without filing a lawsuit, for $450.00, which, after deductions for a doctor bill, attorney fees, and Magistrate Court costs, left a net of $225.00.

The experienced trial judge here was in an excellent position to observe the venireman-juror’s attitude and demeanor and to determine whether she had intentionally concealed the facts so vital to the question of the possibility of her prejudice. He most certainly was in a better position to gauge the prejudicial effect of trial events than we are here on the basis of a cold record. We cannot, and do not, find that he abused his discretion in denying appellants’ motion for a new trial on these grounds.

During plaintiffs’ final argument his counsel, in response to defendants’ argument that had Mr. Goodman’s median nerve been hit, at a time when he was on the operating table but not yet under the effect of anesthesia, he would have come up right off the table, argued:

“ — how about the other people in the operating room, talking about why didn’t Mr. Goodman jump when he got hit in the median nerve. Maybe he did, maybe he did. They only brought two people in out of that operating room. There are nurses in the operating room. And the rest of the hospital record shows there were two to three doctors that were in that hospital room. Maybe Mr. Goodman did jump, maybe he did.”

At this point counsel for the Hospital interposed an objection that this was highly prejudicial because “those names that were all known were disclosed.” This objection was sustained. Appellants’ counsel attempted to pursue this line of argument further but objections were made and sustained. He then attempted to argue that the defendants did not bring in the nurses who wrote the entries in the hospital record and when objections were made by counsel for Drs. Kaiser and Schweiss, they were sustained, the jury was instructed to disregard the argument, and it was ordered stricken.

On appeal, the appellants’ first contention is that the trial court abused its discretion in failing to grant a new trial to plaintiffs on the ground that the court had prejudi-cially erred in refusing to permit the plaintiffs to comment on defendants’ failure to produce the other doctors and nurses in the operating room. Appellants’ (hereinafter plaintiffs’) argument concerning the failure of the defendants to offer the testimony of the other people in the operating room is based upon the proposition that a party is entitled to comment on the failure of the opposite party to produce a witness on a material issue who is more available to that opposite party. Respondents argue that there is no material issue on the point because there was no contrary evidence from anyone on the part of the plaintiffs, and therefore the question of availability is never reached. Further, they argue, assuming arguendo that there is such a material issue in the case, even when a witness is not equally available, no inference may be argued from his failure to appear unless it is shown that the absent witness might have testified as to some relevant fact or question in issue.

It was a very material issue under Mr. Goodman’s theory of the case whether the median nerve in his left wrist was struck and injured as he was being prepared for the operation. Dr. Greene, testifying for plaintiffs, opined that the median nerve of Mr. Goodman’s left wrist was traumatized by the needle at the time of the radial cannulization and this was the cause of his infirmities. Defendants’ evidence, to, the contrary, was that there was no traumatizing of the median nerve by the needle, but rather that the scarring was caused by a lack of blood supply to the median nerve caused by spasm, clotting or shock. Dr. Dalton, an expert offered by the defendants, testified that had the needle gone into the median nerve the patient, while still not under anesthesia, would have experienced very severe pain and “I would think he would literally jump off the table.” He also gave an opinion that the 5 to 8 cm. defused scarring to Mr. Goodman's median nerve was due to a “state of insufficient defusion to this nerve, the proper flow supply, ischemia” which was due to shock following the operation.

Mr. Goodman’s testimony was that after he was laid out on the operating table his left hand was pulled down and then he felt four or five jabs in his left wrist and that was all he could remember until after the operation.

Dr. Schweiss testified that Mr. Goodman had received a pre-operative medication, a standard procedure, at 6:30 a. m. the morning of the operation consisting of a “half dose” of a narcotic because of the discomfort associated with introducing a needle into a nerve as part of a nerve block. Mr. Goodman, he testified, at no time complained of any discomfort associated with the injection he made. He denied that during the procedure he stuck the needle into Mr. Goodman’s median nerve.

Dr. Kaiser testified that had Dr. Schweiss, before he administered any anesthesia, struck the median nerve of Mr. Goodman with the needle, Mr. Goodman would have complained bitterly and there would be no question in anybody’s mind that the nerve had been struck and that there would have been a response from the patient — pain and discomfort — which he would have known about. They, the doctors, would have had a great deal of difficulty. If anything had gone wrong with the radial artery puncture, he testified, he might not have proceeded with the operation or, if they did proceed with the operation, they would have inserted the catheter in the wrist of the other arm. This was not done.

Counsel for the Hospital argues that there was no “matter in issue” created by the evidence lending validity to this line of argument because there was “no direct evidence that anything untoward occurred in the operating room.” The basis for this argument is that Mr. Goodman did not testify to feeling any discomfort or pain at the time the catheter was being inserted into his wrist other than that he felt four or five jabs in his left wrist, and there is an absence of any other testimony to the contrary. Any evidence from other members of the operative team would, the Hospital contends, be cumulative only and therefore plaintiff could not have been prejudiced by the trial court’s ruling.

Counsel for the defendant doctors argues that the trial court is vested with wide discretion in ruling on the propriety of jury arguments and determining their prejudicial effect, and unless clearly abused, this exercise of the trial court’s discretion should not be disturbed on appeal. The doctors’ counsel also argues that unless the absent witness, who was not equally available to the other party, might have testified to some relevant fact or question in issue, no argument in this vein is permissible.

Missouri cases have established the general rule that the failure of an employer to call as a witness an employee, or explain his absence, when the employee has knowledge of the facts in issue and is apparently qualified to testify in regard to said matters, justifies an inference or presumption adverse to the party-employer and thereby authorizes counsel in a civil case to comment on the failure of the adverse party to produce or examine said employee as a witness in his behalf. Duboise v. Railway Express Agency, Inc., 409 S.W.2d 108, 113[2] (Mo.1966).

The hospital record entries of the Firmin Desloge Hospital, recited that Dr. Kaiser was assisted in the operation by Drs. Barn-hart and Wester man and that Dr. Schweiss was assisted by Dr. Eachempati, a resident at the Hospital. Appellants’ counsel also argues that from the nature of the operation it is clear that there must have been other nurses who assisted in the operation. From this foundation, he contends that his argument was proper and the trial court committed prejudicial error in sustaining defendants’ objections.

We conclude from the record that the trial court did not err in its ruling because of the shotgun nature of the argument made and the speculative phraseology. Plaintiffs’ argument in their brief is directed only at the availability of the witnesses, but availability is not the sole criteria upon which the propriety ’of argument of this unfavorable inference must be gauged. There must also be some evidence in the record to support a finding that the employee witness had knowledge of the facts and is apparently qualified to testify concerning the facts in issue. ■ From a reading of the record we are unable to deduce what each of these witnesses who were not produced by the defendants were doing at the time of the injection' of the catheter into Mr. Goodman’s wrist. While the record is clear that Drs. Schweiss and Kaiser were present at the operating table when this procedure was performed, the trial court would have had to speculate whether the other doctors and nurses were in a position to observe the procedure. We believe that before the trial judge can be found to have erred in the respect charged here he must have been presented with a better record to demonstrate that these doctors and nurses were in a position to observe.

Nor does the fact that defendants’ medical witnesses testified that had Mr. Goodman’s median nerve been struck he would “literally jump off the table” change our viewpoint. There was no testimony by plaintiff that he did jump off the table. All of the evidence in the case was that despite the fact he was somewhat under the influence of a narcotic at the time the procedure was performed, he was still not under the influence of the anesthesia.

Counsel's argument by its very phraseology shows its speculative nature and exceeds the proper scope of argument even if it were authorized. At best, he could only have argued that by the failure of the defendants’ to call these witnesses the jury could infer that their testimony would have been unfavorable and damaging to them; not what he would expect the witnesses testimony would be.

Plaintiffs also contend that the trial court abused its discretion in failing to grant plaintiffs a new trial on the ground that the court had prejudicially erred in refusing to permit the plaintiffs to comment on defendants’ failure to produce the nurses who made entries of Elmer Goodman’s complaints of pain in the Hospital record.

In his argument plaintiff’s counsel argued:

“Did they bring in one nurse? No. The one who wrote the entries in the hospital record? And there are two other ones who wrote in, did they bring them in? They didn’t bring in the one who wrote the explanations . . . ”

At this point in the argument counsel for the doctors interposed an objection to this line of argument which was sustained.

Plaintiffs argue that this was proper argument because their expert witness based his conclusions as to the cause of Mr. Goodman’s condition and as to the inadequacy of Dr. Kaiser’s post-operative care and treatment, in part, on Mr. Goodman’s complaints of pain and numbness in the left hand and wrist following the operation. They argue that these complaints were testified to by Mr. Goodman, and that Mrs. Goodman testified that the attending nurses were aware of this. One entry in the hospital record made by nurse Linda Stevens under date of June 7, 1970 was: ‘Fingernails pink and warm. Complaints of some numbness.” Dr. Kaiser’s testimony was that he was unaware that Mr. Goodman had complaints of pain in his left hand and wrist at the time of his discharge from the hospital on June 19,1970, and the first time he became aware of these complaints was on July 21, 1970, and that it was only then that he had a basis for diagnosing causalgia. Loretta Sheehan, who at the time Mr. Goodman was in the hospital for the surgery was the nurse in charge of the Cardiovascular Intensive Care Unit of the hospital and supervisor of the other nurses in that Unit, was produced as a witness by counsel for the Hospital. She testified that the nurses were instructed to note in the record every complaint of pain and its location. She was asked to read from the nurses’ notes entries made by nurses Sandra Hill and Linda Stevens, and except in two instances, the entries reflecting complaints of pain by Mr. Goodman did not specify the locale. Counsel for the Hospital sought to have this witness interpret the entry of June 7, 1970 by nurse Stevens but plaintiffs’ objection to such interpretation was sustained. It is the failure of. the defendants to produce the two nurses who made the record entries that plaintiffs sought to comment on because they were not equally available to plaintiffs.

We are here confronted with the question whether these nurses were employees of all the defendants, or were in a relationship to all of the defendants so as to authorize a comment by plaintiffs’ counsel that all defendants were under an obligation to produce these nurses lest an unfavorable inference might flow therefrom that their testimony would be unfavorable to all defendants in this respect. We think not. Here again plaintiffs’ counsel sought to paint all defendants with the same brush when we daresay there is no evidence in this record that, at least as to Dr. Schweiss, these nurses were more “available” to him than they were to plaintiffs. Dr. Schweiss is an anesthetist. These nurses performed their duties in the hospital under Dr. Kaiser’s supervision, not Dr. Schweiss’, so even if proper argument with respect to the Hospital and Dr. Kaiser, said argument would not be proper as against Dr. Schweiss.

Plaintiffs introduced this hospital record into evidence without any reservations and read into evidence these same nurses’ notes in their case in chief and used these same notes in their hypothetical question directed to their medical expert as a foundation for his opinion that Mr. Goodman’s median nerve had been stuck with the needle by Dr. Schweiss and should have put Dr. Kaiser on notice as to the onset of causalgia and thereby dictated the initiation of a course of treatment. Counsel for the Hospital was foreclosed when he sought an interpretation of these same record entries by the supervisor of the nurses who made the notes by reason of an objection interposed by plaintiffs’ counsel. Despite the fact plaintiffs’ own medical expert testified on cross-examination that this particular nurse’s notes of June 7,1970, did not indicate to him causal-gia, the plaintiffs had the benefit of his interpretation of these nurses’ notes in a light most favorable to their theory of the case and there is no issue whether Mr. Goodman experienced pain and numbness after the operation; all parties agree to that. Where they differ is what caused the pain and numbness and it was the plaintiffs’ burden to prove that cause.

Under these circumstances we conclude that the trial court did not abuse its discretion in failing to grant plaintiffs a new trial on the ground that the trial court prejudi-cially erred in sustaining the objection of Dr. Schweiss’ counsel to this line of argument.

Plaintiffs’ next contention is that the trial court erred in failing to grant them a new trial on the ground of prejudicial error in refusing to allow them to introduce in rebuttal an alleged admission by counsel for St. Louis University made in a prior opening statement before an earlier jury panel that the doctors did not know what happened to cause the damage to Mr. Goodman’s median nerve.

While a clear and unequivocal statement by counsel for a party in an opening statement may constitute an admission of fact and may be admitted against said party as an exception to the hearsay rule so as to constitute a judicial admission, DeArmon v. City of St. Louis, 525 S.W.2d 795, 799[1-3] (Mo.App.1975), the point presented here is limited to whether the trial court erred in refusing to permit it to be introduced into evidence in rebuttal.

In an earlier trial which was aborted and a mistrial declared because of the illness of a juror, counsel for the Hospital during his opening statement had said, while describing the operative procedure, that there would be no shred of evidence in the case that any doctor ever put a needle or injected anything into the median nerve. He admitted that something did happen and that “We” don’t know what plaintiffs’ medical expert from New York was going to say, “but the doctors who were there do not know what caused this, because they never, never had anything to do with a median nerve.” The offer of this portion of the opening statement was limited as an admission of fact against the Hospital by plaintiffs’ counsel.

“Rebuttal evidence” is evidence tending to disprove new points first opened up by the opposite party. Peters v. Dodd, 328 S.W.2d 603, 610[8] (Mo.1959), State ex rel. State Highway Com’n v. Schwartz, 526 S.W.2d 952, 957 (Mo.App.1975). If, as plaintiffs contend this statement by counsel constituted “an admission of fact” this evidence would have been admissible in plaintiffs’ case in chief. Gibson v. Metropolitan Life Ins. Co., 147 S.W.2d 193, 196[2] (Mo.App.1941). A trial court has discretion to exclude testimony or evidence in rebuttal not only where it would have been repetitive, but also where it could have been offered in the presentation of the offering party’s case in chief. Bean v. Riddle, 423 S.W.2d 709, 719[7] (Mo.1968); State ex rel. Highway Com’n v. Schwartz, supra, l. c. 957[8].

Plaintiffs’ argument in support of this point is that prior to trial they had been led to believe that the doctors had no knowledge relative to the causation of the damage to Mr. Goodman’s median nerve and this was confirmed by the portion of counsel’s opening statement made on behalf of the Hospital. They contend that by the time of trial, however, the Hospital maintained that the doctors were positively of the opinion that what had caused the scarring of the median nerve was an insufficient blood supply to the nerve due to shock following the surgery.

We conclude that the transcript demonstrates that neither Dr. Schweiss nor Dr. Kaiser had a medical opinion of the causation of Mr. Goodman’s causalgia in its early stages. Both denied however that it could have been caused by hitting Mr. Goodman’s median nerve with a needle. It was not until Dr. Dalton, an expert cardiac anesthesiologist, was consulted and formed an opinion that the cause was due to a lack of blood supply incidental to the risk of radial cannulization and not the result of negligence, that Dr. Kaiser admittedly formed an opinion on the cause of Mr. Goodman’s infirmities. This fact was brought out to the jury by the Hospital’s counsel and during cross-examination of Dr. Kaiser by plaintiffs’ counsel who made a point that Dr. Kaiser had gone for a period of three years and three months before he formed the opinion he expressed at trial as to the cause of Mr. Goodman’s condition. We conclude that the trial court did not err and rule this point against plaintiffs.

Plaintiffs contend that the trial court abused its discretion in failing to grant plaintiffs a new trial on the ground of prejudicial error in refusing to allow plaintiffs to show in rebuttal the anesthesia chart for the operation of 5 June, 1970. We have not been favored with having the anesthesia chart referred to in this point filed with this court nor incorporated in the transcript. Rule 81.15. However, from a reading of the record we glean that plaintiffs’ counsel proposed to read from the anesthesia chart in the Hospital record that “morphine is indicated, written between 7:30 and 8:00 a. m.” after defendants had concluded their evidence. Counsel for the Doctors objected on the ground that it was not proper rebuttal and was repetitious. Plaintiffs’ counsel denied that the evidence was repetitious and stated that “I want to show the jury there is an ‘X’, two ‘X’s’ ”. He admitted that “its” already in evidence, but stated that he wanted to read it and show the jury the manner in which it’s written at the bottom, between two “X’s” written at the time this Medicut was introduced into the man’s wrist. He wanted the jury to draw their own conclusions from the hospital record. The court remarked that he didn’t see how counsel for the plaintiffs could interpret the Chart. “There is some kind of a medical chart, this is, and this is an anesthesia record” the court said. Counsel agreed and inquired: “. . .; but how can I show? All I can do is put the record in evidence and this is what I want to do, is put it in and then I’ll argue . . ” The court wanted to know how counsel was going to get the Chart in evidence and said that he didn’t see what counsel could read “because they’re just check marks and it’s a chart, . . . ” After some further argument, the objection was sustained.

Plaintiffs first introduced the hospital record into evidence in their case in chief as stated hereinabove, and read certain portions of the record into evidence. We deduce from colloquy between counsel and the court that this portion of the hospital record plaintiffs did not read into the record prior to their request to read it on rebuttal. We also glean from these same sources that the record sought to' be read consisted of a chart with some checks and “X’s” on it, which, without proper interpretation by one qualified to read and interpret same would be meaningless. Under these circumstances we hold that the trial court, in the exercise of its discretion, did not err in refusing to grant plaintiffs a new trial for its refusal to permit plaintiffs to introduce the anesthesia chart into evidence in rebuttal. Bean v. Riddle, supra; State ex rel. Highway Com’n v. Schwartz, supra.

Plaintiffs’ next contention is that the trial court abused its discretion in failing to grant plaintiffs a new trial on the ground that the Hospital, in its opening statement, evidence and argument, improperly played upon the jury’s sympathy for the doctor defendants. Plaintiffs argue that by permitting counsel for the Hospital to develop in detail the mechanics of the heart surgery performed upon Mr. Goodman by Dr. Kaiser in his opening statement and in his examination of Dr. Kaiser, over their objection that the details of the heart operation were not material and were calculated to evoke sympathy for the doctors and make them “folk heroes” the trial court erred. Plaintiff candidly admits that its only objection to this was lodged during the opening statement by the Hospital’s counsel. They would excuse their failure to object during the examination of Dr. Kaiser and closing argument on the grounds that to continue to object would have been futile in view of the trial court’s earlier ruling. They further contend that the final argument in this vein constituted plain error. Rule 79.04.

We conclude that there is no prejudicial error here and that there is no merit to this contention.

Plaintiffs’ counsel’s lone objection occurred during the opening statement when counsel for the Hospital was explaining what the defendants’ evidence would be with respect to the operation performed on Mr. Goodman, and in particular the manner in which Dr. Kaiser commenced the surgical procedure. The objection was: “If the Court please, the details of the heart as such are not material to this lawsuit.” This objection is insufficient unless it is apparent that the matter objected to is immaterial. Long v. F. W. Woolworth Co., 232 Mo.App. 417, 109 S.W.2d 85, 91[11] (1937), Carroll v. Missouri Power and Light Co., 231 Mo.App. 265, 96 S.W.2d 1074, 1080[15] (1936). We cannot say that it is apparent that this statement by counsel relative to what he expected the evidence to be was improper or incompetent and that the trial court erred in overruling an objection in this form. Nor do we conclude that the failure of plaintiffs’ counsel to renew his objection to this line of evidence when it came in during the course of trial can be ameliorated by their contention that the trial court had indicated by his ruling on this objection that a properly phrased objection at later stages of the trial would be futile. The trial court merely stated: “The objection will be overruled.” He did not indicate that under no circumstances would he refuse to entertain a valid objection should the occasion arise.

Nor do we find any basis for invoking the plain error Rule in this case. The Rule may not be invoked to excuse mere failure to timely and properly object. Brown v. Boyd, 422 S.W.2d 639, 643[5] (Mo.1968). The general rule is that where a party does not object to argument he deems improper he may not thereafter object on appeal; and the plain error Rule may be resorted to only in those exceptional circumstances when the reviewing court deems that manifest injustice or miscarriage of justice has occurred. Birmingham v. Coen, 320 S.W.2d 509, 510[2] (Mo.1959). We rule this point against plaintiffs.

Plaintiffs’ final point is that the trial court abused its discretion in failing to grant them a new trial on the ground that the combined effect of the errors alleged in the prior points substantially prejudiced them. Having found no prejudicial error in each of the prior points espoused by plaintiffs in those points, we rule this point against plaintiffs also.

Affirmed.

CLEMENS, P. J. and STEWART, J., concur.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    ARTCRAFT CABINET, INC., a Missouri Corporation, Respondent, v. WATAJO, INC., et al., Appellants.
    No. KCD 27185.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      James S. Cottingham, Cottingham, Williamson, Gibson & Leonard, Independence, for appellants.
    Warren S. Stafford, Taylor, Stafford & Gannaway, Springfield, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiff ArtCraft, Inc. sued Summit Homes [a commonalty of eight domestic corporations doing business as a general partnership] for a mechanic’s lien and contract damages. Summit counterclaimed for breach of contract. The causes were tried to the court and a judgment was returned for ArtCraft for $33,050.56 and against Summit on the counterclaim. The court also found that ArtCraft had abandoned its pleading for a lien on the premises.

The defendant Summit, as general contractor, planned the construction of the Glendale Gardens apartment complex in Independence, Missouri. ArtCraft, a manufacturer of prefabricated cabinets, bid on the project, and on October 29, 1970, was awarded the subcontract to provide and install kitchen and bath vanities for 280 apartment units and a clubhouse. Shop drawings prepared by ArtCraft had been submitted to Summit with the bid. The total contract price was $89,595.

The contract provided in paragraph III for ArtCraft “[t]o begin the work herewith contracted for as soon as the project upon which the work required is ready for such or within 10 calendar days after the contractor has given notice of work or material requirements and to complete the several portions of the whole thereof within the time or times following namely: . . . ”. The blank space which ensued was not completed.

In January of 1971, the various subcontractors [including the plaintiff ArtCraft] met with the Summit representative to establish the production schedule. According to this schedule, ArtCraft was to start installation in building 12 of the complex on March 18,1971, and was to follow the painters and trim carpenters who were to have finished by that date. ArtCraft was to be allowed ten working days to complete the job. Instead, the first delivery of cabinets by ArtCraft did not take place until May 11.

The project had not started on schedule and Jones, the Summit general manager, testified that the apartment units in building 12 were probably not ready for cabinets on March 18. ArtCraft had made field measurements in March and found that there was no sheetrock on the walls and that the building was definitely not ready for the installation of cabinets. According to Jones, building 12 was finally ready for cabinets in early April and so informed ArtCraft by telephone. Jones wrote to Allison, the ArtCraft sales representative, on April 6 that plaintiff was to begin installation on April 14, 1971. ArtCraft, however, could not properly proceed with fabrication of the cabinets until the shop drawings were approved. They had been submitted with the bid and remained with Summit until April; they had not been returned either approved or disapproved, by the architect. In another letter to ArtCraft, this one dated April 22, 1971, Jones informed ArtCraft that their drawings had not been approved and would have to be resubmitted. Jones added that time was of the essence, since time for installation was nearly at hand.

ArtCraft sales representatives Allison and Cotton, who did cost analysis and field measurements for the plaintiff, met with the Summit architect and drawings were devised to the satisfaction of the architect. They were ultimately approved by Richardson, the Summit job superintendent. As of May 4, 1971, however, ArtCraft had yet to receive approval of the shop drawings and on that date Cotton wrote Summit that until such was forthcoming, ArtCraft could not manufacture any cabinets. That same day [in a letter which crossed], Jones wrote ArtCraft that Summit would treat the contract as breached unless the plaintiff was on site for installation work on May 5.

It was the testimony of Ms. McGauvran, ArtCraft president, that Jones telephoned her on May 5 or 6 and intimated that Art-Craft was unable to furnish the cabinets for the project as agreed. She, in turn, insisted the work would be done but that approved drawings were needed first. It was her testimony [not recalled by Jones] that he agreed to guarantee the drawings would be sent if ArtCraft delivered the cabinets. Ms. McGauvran acceded to a May 11 delivery date and confirmed this commitment by telegram that day. Thus, although the approval of the architect was not received, the cabinets were manufactured and delivered on May 11 as agreed.

The vexations, however, did not abate. The first site for installation, building 12, did not conform to the original plans and specifications, nor were the floors level. These presented difficulties for the Art-Craft installers. Also, the painters and trim carpenters were still working in the units. ArtCraft service manager, Gill testified that when the cabinets were delivered to the individual units in building 12, the carpenters had some “moulding and stuff laid on the floor, and they were mad because we were in their way”. This confusion created hard feelings so that the other artisans moved the cabinets into other apartments out of the way.

The production schedule allowed Art-Craft 10 working days to install the cabinets. Ms. McGauvran sent Allison to the project to resolve the problems. Allison found that Summit superintendent, Richardson, had employed carpenters to hang the cabinets. Apparently, the ArtCraft cabinet installers had been fired. Gill testified that two ArtCraft installers were present on May 11, the delivery date, and two additional installers appeared the next day. When Gill returned to the site three days later, these men had been replaced by two men hired by Jones, the Summit general manager. Jones testified the ArtCraft installers did not know what they were doing. According to Jones, he had been granted authority from Ms. McGauvran to terminate the men and hire the other two. Ms. McGauvran testified she had never instructed Jones to fire any installer working for ArtCraft.

The two installers employed by Jones worked for a short time and then quit, disaffected because the cabinet components were in disarray, scattered throughout the apartments where they had been moved by the other artisans. Allison placed an advertisement in the Kansas City Star for installers; several men responded and three were eventually hired and worked on the project until Summit terminated the ArtCraft contract. [There was testimony from Summit that none of the ArtCraft installers lasted long on the job and no crew worked continuously.]

The most formidable obstacle facing the ArtCraft installers resulted from a drafting error involving a number of the kitchens: the architectural plans did not allow sufficient room for the gas ranges. The result was that the dishwasher door in these kitchens would not fully open and ArtCraft had to redesign 10 cabinets. The cabinets from these kitchens were returned to the Art-Craft plant and reworked while others were replaced by new cabinets. This additional expense was calculated to be $2000.

Jones informed McGauvran by letter of June 10,1971, that ArtCraft was in default and that if qualified installers were not on the job on June 11, Summit would consider the contract breached. [According to the terms of this letter, Summit had put its own carpenters on the installation of cabinets on June 10.] In response, the ArtCraft attorney wrote Jones on June 17 in which he charged that the use by Summit of their carpenters without a prior 48-hour notice to ArtCraft violated paragraph XVI of the subcontract:

The subcontractor agrees to proceed with the work according to the schedules laid down by the General Contractor as time is considered to be the essence of the contract. Should the subcontractor fail or refuse to meet these schedules then the contractor after forty-eight (48) hours notice in writing to the subcontractor may take over his work . . . and such cost will be borne by the subcontractor .

The letter also complained of harassment of ArtCraft installers and additional work not required by the contract.

Summit declared the ArtCraft contract breached and terminated in a letter dated June 25, 1971. ArtCraft declared itself ready, willing and able to perform the contract, but acceded to the Summit request that ArtCraft discontinue services. Art-Craft employees left the job site and Summit contracted with Woodstock Manufacturing Corporation for the supply of cabinets at the contract price of $81,500.98.

Summit evidence was that (1) ArtCraft had shipped 71 cabinets before the contract was terminated; (2) Summit paid $16,085.59 to complete installations of these 71 units after ArtCraft was terminated; (3) Summit paid Woodstock $81,500.98 for manufacture and installation of cabinets in the other 209 units and the clubhouse; (4) Summit paid VanTop, the subcontractor for cabinet tops, $5,699.17 and (5) Summit paid $20.70 to one Holcomb, for the balance due on subcontract to him from ArtCraft.

The petition alleged that ArtCraft furnished $23,630.60 in labor and materials for apartment improvements before the contract was terminated. The plaintiff sought an additional $25,000 damages for loss of bargain. The plaintiff contends that Summit breached the contract by assuming to perform for ArtCraft without the prior 48-hour notice required by paragraph XVI of the undertaking, and that in any event, ArtCraft was even then in proper performance of contract.

Summit contended that ArtCraft breached the contract obligation to deliver and install cabinets according to the terms of the agreement. The court entered judgment for ArtCraft for $33,050.56 and denied the Summit counterclaim. The judgment was grounded on admirably drawn and carefully explicit findings of fact and conclusions of law. The damage award was derived on this reckoning:

Plaintiff's labor and materials Less credits $23,630.60
Defendant paid VanTop $3,593.85
Defendant paid plaintiff's installers 569.70
Defendant paid Holcomb 20.70 4,184.25 $19,446.35
Interest 2,644.71
Damages for reworking cabinets 2,000.00
Damages for loss of profit 8,959.50 13,604.21
Total Damages $33,050.56

Summit impugns numerous findings of fact and conclusions of law as speculative and without substantive basis. On the contrary, the proof of each — albeit disputed— was sufficient for the inferences drawn by the court. An appellate court will sustain the decree of issues tried to the court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law”. Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976); Rule 73.01.

Summit cites error in conclusion of law number 4 which allowed ArtCraft $2,000 additional damages for reshipment of cabinets to the factory, reworking them, and then redelivery to the project site for installation. This award of damage rested on the substantial evidence that through architectural oversight sufficient space was not allowed for the cabinets according to the original drawings, so that they required remanufacture through no fault of Art-Craft. Summit further contends that such evidence should not have been received because the item of damage had not been specifically pleaded as required by Rule 55.-19. The trial court ruled that such proof was within the intendment of the broad pleading that ArtCraft had expended additional labor because of the actions of Summit which prevented performance according to the contract terms. The ruling was within the holding of Johnson v. Flex-O-Lite Manufacturing Corporation, 314 S.W.2d 75, 84[10] (Mo.1958) that “‘[a]ll pleadings shall be so construed as to do substantial justice.’ The averments of a pleading should be given a liberal construction, according the averments their reasonable and fair intendment.”

The ancillary contention that the evidence was not sufficient to prove the Summit breach of contract could have caused the need to rework the cabinets is also without merit. The form of this contention is this claim is actually for extra work to which ArtCraft had no contractual right to damages without compliance with paragraph XIII of the undertaking which disallows claim for extra work done by a subcontractor who proceeds without a written work order from the contractor. The need to rework the cabinets, however, was not extra work within the meaning of paragraph XIII, but additional labor used in the performance of the contract as written and agreed, but hindered by the default of the architect for Summit. This comports with the express finding of the trial court on that issue of fact. We need not restate all the other articulations on this point. It is enough to iterate that there was competent evidence that the need to rework the cabinets resulted from the architectural error which designed the kitchens for gas range rather than standard electric range installation. It cost ArtCraft $2000 to correct the error of the contractor and damages in that sum were justly awarded.

Summit contends next that the award to ArtCraft of $8959.50 damages for loss of profits was error because: (1) the loss was not proved with reasonable certainty; (2) the evidence on this item of damage was received improperly over objection, and (3) the cost of full performance would have exceeded the contract price and resulted in a net loss to Summit.

The trial court found that Summit had breached the contract by cancellation without cause and allowed ArtCraft the benefit of its bargain. A party injured by the breach of contract is entitled to the value of the performance of the contract. The rule is given in Boten v. Brecklein, 452 S.W.2d 86, 93[4-8] (Mo.1970):

[The injured party] is entitled to the benefit of his bargain, that is, whatever net gain he would have made under the contract.

The proof of damages made by ArtCraft through Love, secretary-treasurer and accountant, employed this standard. It was his testimony that ArtCraft anticipated a ten percent profit from the $89,595.00 to be received from Summit for performance of the contract. See, Startzell v. Johnson, 253 S.W. 54, 55[2] (Mo.App.1923). Summit had every reason to expect when the contract was made that a breach such as it after-wards committed would result in the damages for loss of profits claimed by ArtCraft and awarded by the court. See, Corbin on Contracts, § 1012. The award of $8,959.50 on this issue was supported by the evidence and therefore proper.

Summit complains also that this element of special damage was not pleaded and for that reason was erroneously received. The evidence on this issue was received without objection, thus the pleadings are deemed to be conformed to the proof.

The next contention on this aspect of damage is that the estimate of the secretary-treasurer for ArtCraft was totally unreliable for the assessment of loss of profits, but that under the authority of Tnemec Company v. North Kansas City Development Company, 290 S.W.2d 169 (Mo.1956) ArtCraft was not only required to establish the market price of the cabinets at the time of delivery, but also the expenses which lessened the profit. The failure of ArtCraft to reckon the cost of completion of the contract, Summit contends, would have resulted in a net loss to ArtCraft on that element of damage. Tnemec holds only that [l.c. 174] the proof of loss of profit must rest on reliable data, that it must be proved to a reasonable certainty. The benefit of the bargain to which ArtCraft was entitled was determined by price established for the cabinets by the contract, not the market. Unquestionably, as Tnemec decides, the cost to complete the contract must be credited against the anticipated profit, but that was the precise effect of the testimony by Love that the cost of manufacture and installation of the cabinets deducted from the contract price would result in the ten percent profit margin — $8959.50 [given by Love approximately as $9000]. This point is overruled.

Summit next controverts a number of the findings of fact upon which the judgment rests. Among them, the findings of the court [XXII and XXVIII] that there was no breach by the plaintiff of any material provision of the contract which would justify cancellation by the defendants or support an award of damages to them. We need not replicate the plethora of contractual provisions Summit uses to develop argument on this point. The sense of this contention is that the trial court did not expressly find that the ArtCraft work was done in a skillful and workmanlike manner. Summit cites Rosen v. Alside, Inc., 248 S.W.2d 638, 644[6, 7] (Mo.1952) for the rule that:

[W]here one seeks the recovery of damages of one who he alleges has violated the terms of a mutual contract, the plaintiff must allege and prove that he has himself performed or offered to perform the terms of the agreement.

The trial court made no finding that ArtCraft worked in a skillful and workmanlike manner, but did award the plaintiff the entire amount of damages sought for labor performed, $1,660.80. The contention of Summit that 90% of the cabinets ArtCraft installed had to be redone because they were glued together rather than anchored by screws was controverted by ArtCraft evidence that there was difficulty in placing the cabinets because of faulty construction and other hindrances. The parties both argue on the authority of Brusca, v. Gallup, 429 S.W.2d 780 (Mo.App.1968). In that ease the plaintiff, a carpenter, was awarded a mechanic’s lien. The counterclaim asserted that plaintiff had not performed in a satisfactory and workmanlike manner. The court determined [l.c. 782] that all controverted issues of fact are deemed to be found in accordance with the result reached. Rule 73.01(b). In light of the uncontradicted record that the work was deficient, the judgment was reversed. The record before us displays no such deficiency. The evidence on the skillfulness of performance, albeit disputed, allows the inferential finding, consistent with the judgment ultimately entered, that ArtCraft performed in a workmanlike manner.

In this case the trial court specifically found that ArtCraft, not in breach of the contract, was hindered in performance of the provision for installation of cabinets by the acts of the defendant, and was entitled to recover. The principle that one who hinders performance by the other party to the contract may not avail by the nonperformance so induced [Hillis v. Blanchard, 433 S.W.2d 276, 279[3, 4] (Mo.banc 1968)] supports the findings and judgment.

Summit next specifies ten other findings of fact [which relate to the agreed work schedule for the production and installation of cabinets and which determined the performance of these obligations by ArtCraft was in full compliance with the obligations of the subcontract] were not supported by the evidence.

Summit insists that time was of the essence of the contract and that delay by ArtCraft constituted a breach. And, indeed, paragraph XVI of the contract provided that “[t]he subcontractor agrees to proceed with the work according to schedules laid down by the General Contractor as time is considered the essence of the contract”. The formal provision of the contract [paragraph III] which related to the time for performance by ArtCraft, however, remained blank, uncompleted. The court specifically noted this lapse and found that no agreement was reached by the parties as to the time for completion of the installations by ArtCraft. The court also found that the production, which provided that the installations of cabinets in building 12 was to be completed in ten working days, was not a part of paragraph III and did not complete the space left blank at the time of execution. [This conclusion is supported by the Summit general manager, Jones, who testified that the production schedule was not intended to complete provision III of the contract.]

The trial court correctly stated the principle that the law implies a reasonable time to perform where no time limit is fixed by the contract. Donahoo v. Thompson, 270 S.W.2d 104, 107[1] (Mo.App.1954). In addition, the court found that the plaintiff was hindered in the performance of the contract provision for the installation of the cabinets by the acts or fault of Summit. The prevention or hindrance of performance of a building contract with a specified time by the contractee ordinarily excuses the delay. Southwest Engineering Company v. Reorganized School District R-9, Lawrence County, Marionville, 434 S.W.2d 743, 750[16-18] (Mo.App.1968). One who hinders performance by the other party may not avail himself of nonperformance he induced or occasioned. Hillis v. Blanchard, 433 S.W.2d 276, 279[3, 4] (Mo.banc 1968). The principle is fully stated in 17A C.J.S. Contracts § 468:

[T]here is no breach of a contract on the part of one whose performance is prevented, or rendered impossible, by the conduct of the other party, and the party prevented from performing may be treated, or considered, as though he had performed.

ArtCraft sales representative Allison construed the contract and production schedule to allow ten days to fabricate and ten days to install the cabinets. Allison believed that, until the time the contract was cancelled ArtCraft was performing in accordance with the contract and production schedule. The trial court agreed with Allison and concluded that ArtCraft had performed within a reasonable time under the circumstances. Where a contract expressly provides that time is of the essence, so that performance on time is made a condition of the obligor’s reciprocal rights under the contract, the parties may waive that provision by their conduct. Fritts v. Cloud Oak Flooring Co., 478 S.W.2d 8, 12[2, 3] (Mo.App.1972); 3A Corbin on Contracts, § 754. The court did not find that time was of the essence, but that Summit had abandoned the production schedule and hindered performance by ArtCraft. There is no question that ArtCraft did not perform in a timely fashion according to the dates set out in the original production schedule, but that was because building 12 was not ready for cabinet installation on the date specified. This composite point is without merit.

Summit next contends that the findings of the trial court that ArtCraft did not breach any material provision of the contract is contradicted by the evidence of failure to pay VanTop, Inc. $3593.85 for cabinet tops, the failure to pay $569.70 to carpenters hired by ArtCraft and failure to pay Holcomb the $20.70 owed. Summit cites paragraph II of the contract which obligated ArtCraft to pay for all materials used in the performance of their work on the project, and paragraph XVII which allows cancellation by one party for an act of insolvency of the other. ArtCraft was adjudged bankrupt on April 9, 1974.

The court found [number XXIX] that Summit had paid VanTop, Inc., $3593.85 for a waiver of lien for materials and labor VanTop furnished ArtCraft, and allowed a credit for this amount. Summit contends that the total amount paid by them to Van-Top was $5699.17 — a discrepancy explained by $2105.32 paid by Summit about a month after ArtCraft was terminated. [The trial court apparently concluded that this late payment was not on behalf of ArtCraft.]

ArtCraft admits it employed Van-Top to furnish vanity tops. The invoice dates on the bills payable to VanTop were June 24 and 25, but it is possible they were received after ArtCraft received notice of termination. Summit, of course, may not claim the benefit of a contract by insistence that ArtCraft comply with a condition precedent of the agreement Summit was the first to violate. Boten v. Brecklein, 452 S.W.2d 86, 92[1, 2] (Mo.1970).

Summit also paid $569.70 to carpenters hired by ArtCraft and later fired. Jones testified for Summit that Ms. McGauvran had asked him to pay these men. ArtCraft did not repay this charge because the amount was in dispute and Summit had failed to make interim payments according to the terms of paragraph XVIII of the contract which required Summit to pay ArtCraft “Ninety (90%) of the value of the work, labor and materials satisfactorily executed in place, monthly . . .”. The court found this issue for ArtCraft [number XXV], thus the failure of ArtCraft to pay the artisans was not a breach of the contract.

As to the $20.70 paid by Summit to Holcomb at the request of HUD, the court found that payment was made several months after termination of the contract, and it is apparent that this failure of payment was a negligent lapse not discovered by ArtCraft until after cancellation of the contract.

Summit insists, under this point, that the adjudication on April 9,1974, that ArtCraft was bankrupt was evidence that the concern was in financial distress during the summer months of 1971, the operative date of the contract, and that this consideration, in conjunction with the failure to pay the three payments to VanTop, the artisans and Holcomb, was sufficient cause to justify the termination of contract. This conclusion presupposes facts in contradiction to the determinations actually made by the court and supported by the evidence. This aggregate point is denied.

Summit next complains the court erred in denial of its counterclaim for the cost of correction of deficiencies in the work performed by ArtCraft. The evidence already recounted supports the finding that ArtCraft was hindered by Summit from performance of the contract, and thus the conclusion of law that Summit was not entitled to recover on the counterclaim was validly based on the evidence.

The final point contends that the calculation of interest entered by the court was erroneous. The court allowed interest from July 18, 1971, to October 24, 1973, on $19,446.35, the net cost of labor and material incurred by ArtCraft in the performance of the contract [after credits to Summit for payments to VanTop, some carpenters and Holcomb]. Summit contends interest is allowable from the date of demand and that there was no evidence ArtCraft demanded payment on July 18. The answer pleaded by Summit admits the allegation of the ArtCraft petition that demand for payment was made on July 18,1971. Also, there was evidence that the last invoice sent to Summit was dated June 18, 1971, and that payment was demanded within 30 days of presentment. As previously shown, paragraph XVIII of the contract provided for payment of 90% of the value of the work, labor and materials satisfactorily executed in place. There was evidence that Summit delayed compliance with that provision. The calculation of interest was based upon the provisions of § 408.020, RSMo 1969 and was validly entered.

The judgment is affirmed.

All concur.


author: DOWD, Judge. STEWART, Judge

text:
    Linda Sue DIX, etc., et al., Plaintiffs-Appellants, v. MOTOR MARKET, INC., a corp., et al., Defendants-Respondents.
    No. 36978.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 13, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Arthur H. Slonim, St. Louis, for plaintiff s-appellants.
    Evans & Dixon and Ralph C. Kleinsch-midt, A. G. Holtkamp, Holtkamp & Beck-emeier, E. Thomas Líese, St. Louis, for defendants-respondents.

      . See also Note, 21 Buffalo Law Review 266 (1972).

   DOWD, Judge.

An auto is stolen from a parking garage where the keys were left in the ignition, and the thief being chased by the police collided with an auto operated by plaintiffs’ decedent. Plaintiffs sue the person leaving the auto in the parking garage, his employer, and the operator of the parking garage.

Plaintiffs appeal the trial court’s dismissal of their wrongful death petition for failure to state a claim upon which relief may be granted. We affirm.

In considering the sufficiency of a petition on a motion to dismiss, we give the averments a liberal construction and accord the petition those reasonable inferences fairly deducible from the facts stated. Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo.Banc 1976).

The petition alleges the following: On August 10, 1973, defendant Thomas Kletzker, an employee of defendant Central Apex Engraving Co., parked a 1973 Cadillac in defendant Motor Market’s parking garage. Kletzker left the keys in the ignition, failed to lock the auto doors, and left the auto in an open, exposed and readily accessible place.

The petition further alleges that both Kletzker and Motor Market should have known that the theft of the Cadillac was a realizable likelihood. Kletzker knew or should have known — and Motor Market did know — that other autos had recently and frequently been stolen from the parking garage and from the vicinity.

Motor Market is charged with negligently and carelessly (1) failing to warn its customers to remove the keys from the ignition and to lock the doors of the auto; (2) failing to remove the auto keys from the Cadillac’s ignition; (3) parking or permitting the parking of the auto in an open, exposed, and readily accessible place; and (4) failing otherwise to provide reasonable safeguards against the theft of the Cadillac.

It is further alleged that defendants knew or should have known that because of their negligence a thief or an unauthorized person would take the auto and operate it in an unlawful, negligent, and careless manner, by fleeing from pursuing law officers and thus endanger other motorists.

Plaintiffs are the widow and four children of the decedent, who was killed on August 11, 1973, when the auto he was driving was struck by the stolen Cadillac negligently driven by a thief. The thief, who had stolen the Cadillac the day before from Motor Market’s garage, was fleeing from the police when the accident occurred. It is alleged that the decedent’s death was the direct and proximate result of the carelessness, negligence, and recklessness of the defendants.

The defendants moved to dismiss the petition. Defendant Kletzker filed an affidavit in support of his motion to dismiss. In the affidavit Kletzker admitted parking the car at the garage, but he stated he was required to leave the keys with Motor Market’s agent as a condition precedent to the agreement between he and Motor Market, whereby Kletzker promised to pay money for the privilege of parking his auto in Motor Market’s garage.

The trial court dismissed the petition for failure to state a claim upon which relief may be granted.

The issue in this case is whether a motorist who left the keys in the ignition of his parked auto, and a parking garage proprietor who neglected both to remove the keys from the auto’s ignition and to otherwise safeguard against auto thefts, can be liable for a death caused by a thief who stole the car and negligently operated it when the defendants knew or should have known of recent auto thefts from the garage and the vicinity. This subject has been exhaustively annotated at 45 A.L.R.3d 787 (1972).

The only Missouri case relative to the issue here is Gower v. Lamb, 282 S.W.2d 867 (Mo.App.1955). In that case the defendant parked his car on a St. Louis street with the key in the ignition. A thief stole the car and drove it a block before colliding with and causing damage to the plaintiff’s parked auto. The trial court sustained defendant’s motion for judgment and on an agreed stipulation of facts.

The plaintiff relied chiefly on the fact that defendant had violated Section 304.150 RSMo 1949, and contended that the violation constituted negligence per se. The court found this theory untenable because of the exclusionary clause contained at the very end of the statute.

But the Gower court also treated the case as an attempt to plead and prove common law negligence. Relying principally on the language contained in Zuber v. Clarkson Construction Co., 363 Mo. 352, 261 S.W.2d 52 (Mo.1952), the court affirmed the trial court’s ruling and concluded (at 871-72):

“In the case at bar the defendant’s car was not placed in operation by a curious intermeddler, but by a thief. While under certain circumstances even this intervening act might be expectable . yet the criminal nature of the act certainly lessens its realizable likelihood and requires that the evidence of foreseeability of the theft be clear and convincing. Following the holding in the Zuber case, we believe that the defendant was under no duty to discover the presence of a thief or thieves in the vicinity where he parked his car, and that there was no fact stipulated which pointed to actual knowledge by defendant of the presence of a thief or thieves in the vicinity. We hold that as a matter of law plaintiff failed to adduce sufficient evidence of negligence or of proximate causation to make a sub-missible case.”

The Court in Gower concluded that plaintiff had not proved the foreseeability of the theft. Thus, the court did not specifically reach the issue here of whether, under common law negligence, plaintiffs state a claim upon which relief can be granted by alleging facts as to foreseeability of the theft and the foreseeability that the thief would operate the stolen auto negligently.

Likewise, it is interesting to note that the legislature by Section 304.150 made it a misdemeanor to leave keys in a motor vehicle unattended on a highway but provided that a violation of this statute could not be used in any way in any civil action. This clearly shows that it was the legislative intent to prevent thefts but not make it a basis for any civil action predicated on a violation of this statute. Said another way, the legislature saw fit not to make a violation of this statute negligence per se.

Circumstances similar to those of our case have long troubled courts throughout the nation. See the many cases included at 45 A.L.R.3d 787 (1972). A clear majority of the jurisdictions have decided that it was not reasonably foreseeable that an in-termeddler would both take the auto and then negligently operate it. No liability was found in these cases even though there sometimes was an ordinance or statute prohibiting leaving an unlocked car on a public way with the key in the ignition or with an open ignition switch. Some of these cases found no duty of the car owner to the injured plaintiff, while others found as a matter of law no proximate cause. Some courts combined both the duty and proximate cause concepts to find no liability. See, e. g., Hill v. Yaskin, 138 N.J.Super. 264, 350 A.2d 514 (App.Div.1976); Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23 (banc 1954).

But a minority of jurisdictions have held that these circumstances present at least jury questions as to duty, negligence and proximate cause. See, e. g., Zinck v. Whelan, 120 N.J.Super. 432, 294 A.2d 727 (App.Div.1972); Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (banc 1970). These courts have utilized developing crime statistics pertaining to auto thefts and accidents involving stolen cars.

The defendants contend that the trial court in this case correctly held as a matter of law that the petition failed to state a claim upon which relief may be granted. Defendants on appeal urge (1) defendants were under no duty to protect plaintiff from the unforeseeable actions of a thief; (2) the defendants could not reasonably have foreseen the thief’s negligent operation of the stolen auto; and (3) the thief’s subsequent negligent operation of the car was the independent intervening cause of plaintiff’s injury. We agree with defendants.

These concepts of duty, negligence, proximate cause and independent intervening cause all depend essentially on the issue whether it was reasonably foreseeable on the part of the defendants that an auto with the keys in the ignition would be stolen and operated negligently by a thief. Having reviewed the contents of the petition, plus the applicable case law both in Missouri and other jurisdictions, we have concluded that the trial court correctly dismissed the petition for failure to state a claim upon which relief may be granted.

Three elements are necessary for a case of actionable negligence: (1) there must exist a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) the defendant must fail to perform that duty; and (3) the injury to the plaintiff must proximately result from such failure. Nichols v. Blake, 418 S.W.2d 188[5] (Mo.1967). If a reasonable man could not find that under the circumstances all three elements are present, then the trial court correctly dismissed the petition for failure to state a claim upon which relief may be granted.

The element with which we are here concerned is the scope of the duty owed by the defendants. Before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. Vanacek v. St. Louis Public Service Co., 358 S.W.2d 808[5] (Mo. banc 1962), cert. denied, 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229 (1962). Before liability may be imposed for an act, the prevision of a reasonable person must be able to recognize a danger of harm to the plaintiff or one in the plaintiff’s situation. The injury to the plaintiff must have been reasonably foreseeable. Hodges v. American Bakeries Co., 412 S.W.2d 157[3] (Mo. banc 1967). And one is not required to foresee every possible injury which might occur. Schlegel v. Knoll, 427 S.W.2d 480[9] (Mo.1968).

Our conclusion that the trial court did not err in dismissing the petition is supported by the great weight of authority in other jurisdictions holding that as a matter of law the duty of one who leaves his keys in an unattended auto does not extend to a plaintiff injured in an accident with the thief driving the stolen auto. Justice Traynor’s well reasoned opinion in Richards v. Stanley, supra, illustrates our position. In that case, a car had been left on the street with the key in the car, the car was stolen, and the thief was later involved in an accident with the plaintiff. The court held that a statute substantially the same as Section 304.150 RSMo 1969 was inapplicable to the issue of negligence in a civil case. The court then ruled that as a matter of law the plaintiff had failed to plead a cause of action for commom law negligence because the defendant had no duty to protect the plaintiff from the negligent driving of a thief absent a special relationship between the parties. The court indicated that no special circumstances existed which justified extending the defendant’s duty to the plaintiff. The California Court of Appeal followed Richards in Brooker v. El Encino Co., 216 Cal.App.2d 598, 31 Cal.Rptr. 24 (1963), upholding the trial court’s dismissal of the cause of action against a restaurant-defendant. One of the defendant’s employees had parked a customer’s auto in the defendant’s parking lot, leaving the auto unlocked and unattended with the keys in the ignition. The car was stolen and was involved in an accident with the plaintiffs while attempting to evade the police. The court stated that the rule in Richards was inapplicable only if changed by: (1) statute or ordinance; (2) a special relationship between the parties; or (3) special circumstances affecting the foreseeability of the intermeddler’s negligent operation or resulting harm. The court found that the defendant did not owe a duty to the plaintiffs. We hold that in the absence of special circumstances or special relationships affecting foreseeability, one who leaves a vehicle unlocked with keys in the ignition does not owe a duty to a third parties arising from accidents involving negligent thieves. Allegations that other autos have been stolen in the immediate vicinity and that thieves are likely to drive negligently are not sufficient to state special circumstances or special relationships referred to in Richards and Brooker. We therefore believe that the fact that the decedent was fatally injured as a result of negligent driving by a thief was not a reasonably foreseeable consequence of defendants’ conduct.

Assuming arguendo that the defendants were negligent in leaving the car keys in the ignition, the issue is whether the independent intervening act of negligence committed by the thief in driving the stolen auto was reasonably foreseeable. The weight of authority holds such an independent intervening act of negligence is not foreseeable as a matter of law. See the numerous cases cited at 45 A.L.R.3d 787 (1972). Thus the defendants’ acts of negligence are remote causes, while the intervening negligence of the thief is the direct and proximate cause of the fatal injuries suffered by the decedent.

Whether the negligent conduct of the original wrongdoers is to be insulated as a matter of law by the intervening negligence of the thief is determined by the test of foreseeability. Smith v. Siercks, 277 S.W.2d 521, 526 (Mo.1955); 1 Restatement of Torts § 477(a) and (b).

If the original actors should have reasonably foreseen and anticipated the intervening act causing injury in light of the attendant circumstances, their acts of negligence would be the proximate cause of the injury. Foreseeability of some injury from an act or omission is a prerequisite to its being a proximate cause of the injury for which recovery is sought. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820 (Mo. banc 1956). When negligence appears merely to have brought about a condition of affairs or a situation in which another and entirely independent and efficient agency intervenes to cause the injury, the latter is deemed the direct and proximate cause and the former only the indirect or remote cause. Duke v. Missouri Pacific Railroad Co., 303 S.W.2d 613, 617 (Mo.1957).

Having studied the allegations of the petition in this case, we conclude that the intervening independent act of negligence on the part of the thief who stole the auto was the direct and proximate cause of the fatal injuries suffered by the decedent. The thief’s negligent driving could not have been reasonably foreseen by the defendants and was not a proximate cause resulting from any acts of negligence on the part of the defendants. See, e. g., Stone v. Bethea, 251 S.C. 157, 161 S.W.2d 171 (1968); Kalberg v. Anderson Bros. Motor Co., 251 Minn. 458, 88 N.W.2d 197 (1958).

For the reasons heretofore stated the judgment of the lower court is affirmed.

CLEMENS, P. J., concurs.

STEWART, J., dissents in separate opinion.

STEWART, Judge

(dissenting).

I respectfully dissent from the well-considered majority opinion.

This case comes to us upon the petition only and, as recognized in the majority opinion, we must give the petition a liberal construction and accord the petition those reasonable inferences fairly deducible from the facts stated. Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo. banc 1976).

I would approach this case by applying foundation principles of the law of negligence to the most favorable view of the ultimate facts alleged in plaintiffs’ petition, as the Supreme Court did in Zuber v. Clarkson Construction Co., 363 Mo. 532, 251 S.W.2d 52 (1952).

The elementary principles of common law negligence are:

“ . . . (1) existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure.” (Citations omitted). Scheibel v. Hillis, supra, at 288.

Negligence depends upon the surrounding circumstances as well as the conduct involved because an act or omission which is clearly negligent in some circumstances may not be negligent in other circumstances. Whether one should take appropriate precautions to avoid injury to another depends upon what one may reasonably anticipate. The injury to plaintiff by reason of the conduct of defendant must have been reasonably foreseeable. Zuber v. Clarkson Construction Co., supra.

As was best said in Zuber, 251 S.W.2d at p. 55:

“ . . .if there is some probability or likelihood, not a mere possibility, of harm sufficiently serious that ordinary men would take precautions to avoid it, then the failure to do so is negligence. While the likelihood of a future happening is the test of a duty to anticipate, this does not mean the chances in favor of the happening must exceed those against it. The test is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it. (Citations omitted). Relating to the problem of legal or proximate causation it is restated, ‘If the realizable 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.’ Restatement, Torts, § 449; Christiansen v. St. Louis Public Service Co., 333 Mo. 408, 62 S.W.2d 828.”

It is clearly pleaded that the keys were left in the ignition of the car and further that defendant, Motor Market, Inc., had actual knowledge and that the owner of the car and his principal knew or should have known that vehicles were frequently stolen from the garage and from the immediate vicinity of the garage, and that the car was left in a readily accessible area. A fair construction of these allegations can only lead to the conclusion that there was “some probability” that automobile thieves, known to be operating in the immediate vicinity, would steal automobiles left unattended with key in the ignition in the readily accessible area from which the 1973 Cadillac was stolen. So much so that reasonable minds would take precautions to avoid the theft.

The majority cites Gower v. Lamb, 282 S.W.2d 867 (Mo.App.1955) which would, in my opinion, tend to lend support to plaintiffs’ cause. The court there took the case as one upon an agreed statement of fact. Plaintiff did not plead that defendant knew or should have known that thief or thieves were in the vicinity. Nor was there any evidence to that effect. The court said (at 871-872):

“In the case at bar the defendant’s car was not placed in operation by a curious intermeddler, but by a thief. While under certain circumstances even this intervening act might be expectable, . yet the criminal nature of the act certainly lessens its realizable likelihood and requires that the evidence of foreseeability of the theft be clear and convincing. Following the holding in the Zuber case, we believe that the defendant was under no duty to discover the presence of a thief or thieves in the vicinity where he parked his car, and that there was no fact stipulated which pointed to actual knowledge by defendant of the presence of a thief or thieves in the vicinity.”

As we read the plaintiffs’ petition the element lacking in Gower has been supplied here.

We next consider the question of whether the negligent driving of the thief was reasonably foreseeable or whether it was an independent intervening act for which defendants would not be responsible.

As said in Scheibel at page 288:

“ . . . With respect to the problem of proximate causation, if the foreseeable likelihood that a third person may act in a particular manner is one of the hazards which makes a person negligent, such an act of a third party, whether innocent, negligent, intentionally tortious or criminal, does not prevent that person from being liable for the harm caused thereby.”

The question is simple — can one reasonably anticipate that a person who has stolen an automobile will, upon being discovered by the police in that car, operate it without regard to the safety of others in order to avoid apprehension? The mere stating of the proposition would seem to be the answer in itself.

The Supreme Court of Tennessee in Justus v. Wood, 209 Tenn. 55, 348 S.W.2d 332, 338 (1961), observed:

“It is common knowledge that a person possessed of the characteristics which would cause him to thus steal an automobile is a person who is irresponsible and totally devoid of regard for the rights and safety of others who might be using the street at the same time . .

The Supreme Court of Michigan cited statistics which indicate that the accident rate for stolen cars is approximately 200 times the normal accident rate. Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11, 14 (banc 1970).

It is my opinion that the question of whether one could foresee the negligent operation of a yehicle by a thief in a matter upon which reasonable minds could differ and that the question thus becomes one for the trier of the facts.

In neither Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23 (banc 1954) and Brooker v. El Encino Co., 216 Cal.App.2d 598, 31 Cal.Rptr. 24 (1963) were there any allegations of special circumstances. As recognized in the majority opinion those cases recognize that given special circumstances the result would have been different.

The court in Richards v. Stanley gives an example when at 271 P.2d page 27 it says:

“In the present case Mrs. Stanley did not leave her car in front of a school where she might reasonably expect irresponsible children to tamper with it, see, Restatement, Torts, § 302, illus. 7 . . ”

In the case at bar, given knowledge that there is a probability of theft, do we classify the thief among the “responsible” or the “irresponsible?”

We note in conclusion that defendants Kletzker and Central Apex filed an affidavit in which they state that they were required by Motor Market to leave the keys in the car as a condition to parking their car in the garage. The court did not undertake to enter a summary judgment. We have therefore not considered the affidavit and express no opinion 'as to the liability as between the defendants.

I feel that plaintiffs’ petition has alleged sufficient ultimate facts to invoke the jurisdiction of the courts. Therefore, I would reverse.

      . See case notes at 25 U.K.C.L.Rev. 58 (1956); 21 Mo. footnotes L.Rev. 197 (1956).

      . Section 304.150 RSMo 1969:
      “No person shall leave a motor vehicle unattended on the highway without first stopping the motor and cutting off the electric current, and no person shall leave a motor vehicle, except a commercial motor vehicle, unattended on the highway of any city having a population of more than seventy-five thousand unless the mechanism, starting device or ignition of such motor vehicle shall be locked. The failure to lock such motor vehicle shall not mitigate the offense of stealing the same, nor shall such failure be used to defeat a recovery in any civil action for the theft of such motor vehicle, or the insurance thereon, or have any other bearing in any civil action." (Emphasis added).
      The penalty for violation of this statute is contained in § 304.570 RSMo 1969.

      . The court in Zuber reversed the trial court’s dismissal of the case for failure to state a claim upon which relief could be granted and ordered that the question of the defendant-owner’s liability be tried. However, this holding was based upon the peculiar circumstances of the case. The vehicle owned by the defendant was a large, earth-moving tractor referred to as a carry-all, which was consistently stored overnight on the Missouri River levee or in another open and public place. The machine was stored in gear with switches and ignition unlocked, with its self-starter ready to operate. In addition, the plaintiff asserted that curious adults operated and moved the defendant’s carry-all customarily each evening. The plaintiffs’ decedent had been crushed by defendant’s carry-all when an acquaintance of decedent experimented with the machine.
      The court found under these particular facts that the carry-all was a potentially dangerous machine especially when left in a public place without operative brakes, fueled up, in gear, in an operative condition where nightly it had been operated by intermeddlers. The court also noted that an intermeddler would probably be unskilled in the operation of this potentially dangerous carry-all which when so operated “would (and did) become a monstrous instrumentality of destruction.”
      It is clear that the facts in Zuber are readily distinguishable from the facts alleged here.
      Also see Triplett v. Shafer, 300 S.W.2d 528 (Mo.App.1957).

      . We note that divisions of the New Jersey intermediate court of appeals have reached opposite results in Zinck and Hill v. Yaskin, supra. The New Jersey Supreme Court has not yet treated this issue.

      . Hergenrether v. East, 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164 (1964), illustrates one set of special circumstances deemed sufficient to impose a duty upon a defendant running to third parties injured in an accident involving a theft of defendant’s vehicle.