*1 1179 leave, further prosecutor requested, granted introduce the and was to evidence above-mentioned. formally
It the defense of interpose did not is true defendant insanity jury any other, matter), for the was bound (nor but that his very things, by, influenced observe, and the nature of be only of interpreted which manifestations demonstrations could be as required to remain a disordered mind. think was not ¥e state the unchallenged unexplained and silent, go and permit such exhibitions nature, this when it their real for proof abundance to show had of feigning of which said, flight, court has “Like the of state mind .a or, charge itself, a genuine, if would constitute defense trial, disposition justice, a a at least bar the of to evade is indicative S. on W. the tends to 97.] theory that prove guilt.” Feigning it amounts to a insanity by [State species v. Stevens, defendant fabrication of 242 be shown evidence, 439, 147 indicating himself his own and as the defendant was conscious of production guilt, and his could made that defense not be out (N. 31 179 Fed. L. R. A. States, the truth. v. United [Waller S.) prove the competent “It is for commonwealth that the 113.] having or accused, committing act, it, been fled after accused of or any himself, guilty or with conduct inconsistent concealed right feign insanity, jury If did had a appellant innocence. defense, he, having pro- infer no meritorious fact against spurious defense, only available up to fix one posed and, with being charge; truth such conduct inconsistent it was for what innocence, proper jury for to consider it it Ky. Ky. 10 L. Commonwealth, worth.” [Basham fully justified, We 9 W. think the and exercised court 284.] discretion, reopen state permitting a sound case complaint made. receiving about which purpose the evidence is trial, likely to on assigned are not recur another The other errors noted, judgment For error will not be treated. so All concur. reversed, remanded. case
Marjorie friend, her next Smith, by Smith, Helen v. Abraham Clothing Cor- Company, & Furniture (2d) and 38590. 175 poration, Appellants. S. W. Nos. 761. Two, December
Division *2 Wilbur C. Schwartz and Victor Packman for Clothing & Company, appellant; Furniture Orville Richardson of counsel. *4 Wilbur Abraham Fine, appellant; C. Schwartz for Orville Bichard son of counsel. *6 Lashly, Lashly, Clark M. Miller & for re- Clifford Clifford
spondent. *8 BOHLING, personal $10.000 recovered in- C. Plaintiff appeal. an automobile. juries when Defendants suffered struck sufficiency respect (a) plaintiff’s present issues with They ability (1) to make submissible issue of defendant Fine’s evidence doctrine; (2) the humanitarian stop his automobile under applicability respondeat superior doctrine of de- between Clothing defendant National Furniture fendaiit Fine and Com- evidence, (c) certain pany, corporation; (b) the admission of main giving plaintiff’s instruction. Plaintiff, May about 8:20 The accident occurred *9 a. m. by age, Marjorie Smith, years 15 of was struck defendant about Fine’s way high while her Blewett school in Louis as on St. crossing Delmar from south to north between was avenue the the she long avenues, a block. Delmar an Belt and east west- Union north Delmar and Belt avenue avenue intersects extends street. Union on Delmar car It is 79 feet between curbs and street Delmar. from in the street. center the There are two street tracks are double safety safety (a zone for safety north westbound and south ear zones traffic) railway point involved, at the each zone for eastbound street directly length. They 90 feet in total are approximating not' zone A short distance the west end the north other. opposite each of the end of zone. a short distance east the south opposite zone is 22 feet 10 curb established it was inches the south The evidence safety zone; safety 5 feet the the zone was south of Delmar safety 1 1 was foot inch from wide; that it the zone 9 inches
1189 south, rail; that it 4 was 5 inches street feet between rails of the south car track, and feet 11 between the north rail inches of the east- .4 bound and the south rail car westbound tracks. street on distances points the'north side of Delmar corre- between similar spond. The safety 6 platform zone inches above the surfaces were of Delmar. surface heavy plaintiff
The traffic was when reached south curb of She, proceeded Delmar. waiting, stepped upon after north and safety Crossing south zone few within a feet of end. its east safety south zone, looked west and near- cars, she observed several being est about 130 along to 140 approaching feet west and safety eastbound or south zone, car tracks. off stepped She onto street, and, proceeding north, traveling steps,' due took four five or feet, 10 12 when she was automobile as she Fine’s reached s.truck the south rail of or the westbound north car Fine tracks. Défendant operating speed was 15 20 automobile at of between and miles warning He stop hour. could in 20 25 feet. no He sounded approach. safety of his After stepping zone, plaintiff off of the ob- served the approaching along westbound traffic the westbound car again track and did approaching see Fine’s automobile. She walking ordinary gait, loitering running. at an neither nor Plaintiff’s mother testified that Fine her he informed did not know how happened; the accident he did not plaintiff. see This was denied by Fine. among things:
Defendant testified, plaintiff Fine other He saw standing on safety when 100 zone about west of feet her. When 4 he was about plaintiff, or feet from she “made dash” in front of his automobile to street. cross the He tried to turn to the left to plaintiff. right avoid could sound or stop, Before he the horn headlight struck reached, front her when we understand, she north rail of east stopped track. He or 30 within feet. plaintiff
Defendants contend made no submissible issue negligence duty of Fine’s under humanitarian to stop, only argument submitted. The since, plaintiff’s issue is that under evi dence, along proceeding defendant the eastbound track and - was struck rail plaintiff (north) at the south track, the westbound safety
more than feet north of the south zone, the automobile plaintiff proceeded safety have between could east and the south zone striking plaintiff plaintiff, in- a position ivithout imminent only after peril the automobile was turned from the eastbound track (wrong) north side of the toward the and there street >vas no evi establishing and, consequently, dence where when this occurred theory plaintiff’s none under the automobile thereafter could many stopped in time. jieen Defendants have cite cases. Humani pivot ability inability a defendant’s issues on or tarian to avoid the *10 of subsequent injured’s to creation the injury peril, the imminent 1190 specific of the
necessitating, consideration very nature, the their off, going cases Therefore, constitutive facts of the individual case. specified constitu for one reason a another, on a failure to establish or 133, 125, App. Anders, 235 Mo. (illustrative: tive element v. Swain incon 140 W. or evidence 730, case, S. 2d 736 a humanitarian of [9]) W. (Mo. App.), 154 S. physical (Bauer sistent with v. Wood facts inability the 356, 359 to avoid 2d a [10, or wherein defendant’s 11]), with “skidding” coincidentally injury on account of Jones, Mo. (Ridge v. 335 plaintiff’s peril the creation of imminent plaintiff 219, 714 or wherein the 224(1), 713, 71 W. 2d [1, 2]); S. to places circumstances as not peril himself imminent in such v. injury (Wells avoid the opportunity defendant due afford Raber, distinguished from 586, 1073), 350 166 W. 2d are be Mo. S. therein, properly be found and the instant case. Statements are to injured’s peril did imminent appropriate instances, so in the need turning We not discuss not arise until of the automobile. a defendant’s act first discloses all these situations. wherein Cases Henson, ensuing Phillips v. peril point. imminent are more “Plaintiff not in 326 Mo. 30 W. states: 1067[5], S. agree We under the facts peril until truck the left.” turned to at the intersection of Easton There, involved. the accident occurred street) (a 30 north and south (a 50 foot and west and Kienlen foot east railway occupied street) double tracks the center avenues. Street traveling Plaintiff, motorcyclist, west, north Easton. a of of along defendant, motorist, a the south tracks, proceeding and east motorcyclist east curb line track on When the reached the Easton. Kienlen, 25 feet west of west curb line of motorist was suddenly, proceed north warning, turned Kienlen without left 4 speed permitting stop 3 to feet and on Kienlen within bumper stop to 3 left end of the struck actual within feet. The motorcycle 3 to west point at a 5 feet east the rear wheel of the 4 feet north' of the north line of Easton. curb of Kienlen 1066.) (326 W. 2d l. c. The distance involved Mo. l. c. “3 4” feet subsequent the motorist’s turn was several times the applicability required stop for a the court’s discussion only portion doctrine included of the distance the humanitarian (326 collision of the turn 1. c. point between the Henson, Phillips W. c. 1067 The observation in 30 S. 2d l. [7]). subsequent taken in a number of appears to be cases as the supra, peril involving imminent zone instances ultimate limit of instrumentality inflicting injury. turning inter Such . might unduly restrict facts pretation applied to other the imminent zone. peril while at plaintiff was struck the south rail
The instant testimony proceeded ordinary that she at an Her north north track. testimony that plaintiff Fine’s “made a walk and defendant dash”
1191 to cross in front of presented jury. his a conflict for the automobile The automobile had subsequent to turn to the at to point north some plaintiff’s view plaintiff last of it the strike while at south rail of to the north track. admittedly plaintiff when 100 saw about feet distant. Plaintiff in would have been the and ascer- observable path tainable of stepped Fine’s automobile from time the the she off safety Taking zone had upon she been track. struck while the south plaintiff’s evidence, intentionally view of the the fact that Fine turned his automobile, changing path, its direction and its did not cause the path of the automobile to differ from direction the Fine intended to chargeable it take. Plaintiff not with in- was notice of Fine’s chargeable so tention —no more than a defendant with un- is sudden to-be anticipated action of plaintiff creating imminent peril. Fine, as is a plaintiff appropriate instances, chargeable was with knowledge change path of his of of his automobile. Fine the intended knew his alone of to turn. In these plain- intention circumstances path was in oncoming-automobile tiff the known to Fine of the while at south of the rail- street car the north track as much as she would been in path have its observable to others while on the south track had no turn It duty stop occurred. was his automobile Fine’s to distant, when it 25 30 prior to or more feet whether or subse- quent turn, along path plaintiff its injuring the from to avoid plaintiff. operator fact that an intentionally pro- The ceeds aon curve known himself not distinguish should on this issue along operator the case from one an automobile proceeds where straight path known himself to others. observable The sub- jective knowledge fact an prior turning of intention and of a turn ensuing path being results in the the automobile continuation path its prior turning becoming intended as visible much objective the approach’of fact the automobile causes the then apparently path of visible the automobile to remain -its path intended actually no turn involving when occurs. This is case a turn suddenly by act person necessitated the of some third under the plaintiff. evidence favorable to
Allen (Mo.), v. Kessler 64 S. W. sustains us. There plaintiff approaching away saw truck 130 feet traveling between curb gave and street no car track it further attention. Plain tiff nest aware of the truck when him it struck while he was about midway between the car rails of street tracks. court held that, notwithstanding the record did not disclose where truck course, changed operator its did show record that its direction changed point feet, within 130 jury some could find that was a place there time and when and operator where the truck necessary steps have taken the should’ the collision. is This .avoid the instant issue. might sufficient rule The court have did but holding testimony (l. 632) policeman not base its on c. of a that
1192 plaintiff truck more was a-straddle the rail feet or distant in 20 stopped it could been Observations that have fee.t. Henson, early Phillips author of cited ease v. and often McCarthy supra, (Banc), on the issue Sheridan this.result; “It 907, 909, vide: true S. W. 2d also sustain peril plaintiff actual defendant swerved was not till travel, jury well car to usual line but the left out have in her plaintiff saw or should seen have believed defendant *12 ear left position swerved actually then the before defendaoit inevitably plaintiff. Her changed line travel strike and his so to by turning his out of the peril was created position of imminent spot where a new travel over regular of travel to the line line moving standing, and he could and should plaintiff was or have take time determined to the new observed this before or at the he quoted expressions con route.” Some of the be [Italics ours.] however, path of the new tradictory. thought, persists The that path humanitarian purposes an is-its for the of the doc automobile changes freely knowingly apparent operator trine its and its when Ellsberry, path. 337 Mo. 85 S. W. McCombs See Clothing Company’s and lia Defendant National Furniture bility respondeat which it upon superior, the doctrine asserts rests was not a under the evidence. submissible issue expense by operated
The owned and his own automobile was “working for” Na- Fine. had been and was defendant Fine the years. for He Company as and salesman over two tional collector 'weekly paid salary. report daily He at the office at 9 would was given 60 or cards, a number of with the would be names of m., a. collect, proceed his persons to would automo- whom thereon payments their the persons proper bile to named note on see morning account, would card, report returning next and the day’s covering previous receiving work and new for cards cards salary. day’s work. is work for which his that This he received collectors, whom other had an There- were four each automobile making believed Company it in collections. He National and used he had an impression applied was automobile when for under he ,told them an work. he had automobile. The National Company He making following it collections its told him to use instructions making throughout for has an he used collections his At Company. accident, with the the time of the connection proceeding in the direction of the National’s office, which home, proceeding east of his but was west and was north and south way on his Newstead avenue to see custo- from home. He was to his for the National Company proceed and then mer to make collection day report money. to office turn National’s plans. carrying him out his After prevented accident the acci- office, bookkeeper what had dent, telephoned he informed the Company telling (the him inform Mr. Klearman happened, management Klearman, Klearman and Nathan was under the of Julius son) at 9 A. m. Klear- father and he would not be there that .Nathan quit employ of police man could came to the station. Fine discharge any him at National and National could time. automobile, maintained cross-examination Fine He
On testified: license, et cetera and reimbursed purchased gas, oil, was not might ride the car or bus. times, day, therefor at on slow street he given up at work with was never instructions fie had to show He first; in what is, He told who see se- automobile. was not “Q. Did quence seen, named on were to but: those the cards be you your He the automo- No, own route? A. sir.” used lay out telephoned him, have if his wife “and I personal purposes; bile for go. if he her wherever she wanted Asked time,” would take he my business, “That stopped up replied: part drum he ever anyone job”; up he free to “stir business.” and that to see opinion all He he had collections on cards delivered made judgment. him If did not make May 15th. He used his he own ‘ ’’ ‘my knew heart. day, made it the next. stuff collection one he He day, If a little and not have so much for the next could save time he *13 my stop “I of own free will.” He said he was not can make that money every morning supposed received but was to account for collections; any supposed in card with his that collection to turn a might day but it two turned in next be or on card would be a made, in if a collection for which days turned it he three before he heavy day might he out” card, $10 a and on a “hold he did not have Company The National would know $20, reporting or it later. not morning that of the unless he had card. He had no card collection way he was on the to see. He was never told not to for customer thought May 16th without a card. would be make a collection He “I heavy day particular if make this collection wouldn’t and he could day.” particular testified was work so hard that He he have to gasoline; and his only trying accommodate himself save on to ‘‘ long my bring money work, as I do in the his own as time was bring in the business.” quote apply
A number of our cases to like issues the definitions Law 2: appearing Agency, in the Restatement of the Sec. a principal employs perform who another
“(1) A master is right controls or has the to control in his affairs who service performance other in the of the service. physical conduct'of the employed by a “(2) person perform A master to servant physical performance affairs whose conduct in his service subject right by or is is controlled control the master. service “ (3) independent person An contractor is a who contracts with something him for but who is not controlled to do another other nor subject right to the other’s control with respect to his physical undertaking.” conduct in the performance of the 220, ibid; Haggard See Sec. also Skidmore v. (1937), 110 S. W. 726, 729; 2d Hoover, Mattan v. 350 Mo. 166 S. 2dW. 557, 564; and consult cases cited Pfeifer v. Supply United Bakers (Mo. Co. App., 1942), 160 W. seq. et
We think jury say it was for the whether the relation of master and servant existed between the National Company and Fine. may National Company not have exercised actual control over the physical conduct performance his work. The Na Company’s right tional’s (right direct) to Control an issue —is slighted. not be may It is crucial Fine’s time have question. long been gave his own as did his work but Company he National him 60 daily, to 70 (as cards at time he was shown herein after) heavy day. about his work on a He trying to have been accommodate gasoline himself and save but jury also for it was if gasoline likewise he have could saved on et cetera put had off he way trip' morning until the They might next on his to work. have postponement considered that prevented working such would have his heavy May hard” day "so 16th. on We understand he incurred no liability if he failed to report. He could be discharged. He quit. could respects employment In other regular, continuous n weekly salary and on a basis. had been years. He at the work for two agreed employed He compensation not an specific for a job. paid He was not commission on reported collections effected. He daily territory to receive cards. His was limited. His acts were supervision. appear under It does National Company’s engaged occupation or Fine were in the distinct busi collectors or collecting ness of collecting accounts. Fine was not for other com panies. His work was not of such a require nature as to a specialist Company over whom the National would exercise supervision no or right supervision. The work part of the Company’s National day business, every ordinary, and essential incident thereof. The Company did not furnish the pay or its *14 operation jury but the have considered it had been into taken salary. weekly in consideration The National Company him told making to use his in following collections and that di " had used car employment. rection he his since his ‘It is not the right with control, fact of actual interference but the to interfere that agent an independent marks difference between contractor and an ” Higgins Riggs (Banc), 1, 106 1, 341 or servant.’ v. Mo. W. S. 2d Security (Mo. 3, quoting approval App.), with Aubuchon v. Const. Co. Morgan Roofing Co., 189. v. 350 187, 382, 291 S. W. Corder Mo. 166 455, 457; Co., Mattan 350 506, 2d v. Hoover. Mo. S. W. 166 S. 2d W. 140 L. 557, Annotations, 1150; A. R. 112 920; 564. L. R. 87 A. Annotation, 1163; 787; 60 A. L. R. 57 A. L. R. L. R. 739. A. Consult
1195 116 A. 1389. following L. R. The from v. observation Vert Metro 342 politan 629, Life 116 R. Co., 252, Ins. Mo. 117 S. W. 2d A. L. 257, 1381, apropos here: is hold . . . when went “We that he out purpose his debit for he activity that a life insurance as agent] [his wholly regular departed employment company from his in which the right physical activity accomplishment had to direct its his for his acting scope Fine
Whether was at within the time using employment jury. also for an auto Usually, servant own, going place either his in from mobile, his master’s or to and his regarded acting engaged of work as as purposes is for his own and not for 126 2d Yanda, 338, in work master. Pesot v. S. W. his Mo. 240, existing in those 244. The instant situation is reverse of employee upon his cases where deviates from duties and enters personal Here, respondeat superior be con mission. if the doctrine Fine applicable going work, and from while Fine was sidered not personal from question at the time in deviated his mission of had upon performance going entered employer’s to his office had “my by He employer. knew stuff heart.” duty of a his owed had a He was he card. was never told not to make collections unless Employees dis stops own are not liberty to of his volition. make energetic employer’s being their couraged attentive, alert, trip making accruing Fine for Any accommodation behalf. discharge his incidental reporting to prior to work Otherwise, no Company’s collectors. of the National duties one as find trip. jury making At the' could his least occasion existed Roofing Co., 350 Mo. Co., it was 350 Mo. made on behalf of 166 W. 2d S. 166 S. W. 2d Fine’s 557, employer. ; Corder v. Mattan Observations v. Hoover Morgan sub Reiling harmony Mis herewith in v. being out of ject to considered 79, 85, W. are 174, 153 2d App. 164, 236 Mo. Co., souri Ins. disapproved. testimony at trial admissibility Fine’s of defendant amake collection going avenue to to Newstead
that at the time he questioned by Company is National customer of defendant from a agent by an subse Company ground (a) admissions on National binding (b) principal on the quent transaction are not probative and without value. intentions were conclusions holding extrajudicial Company post cited Cases against his inadmissible employee of an or admissions statements rem testimony with Fine’s are concerned We employer point. not in are extrajudicial, statements. judicial, court, Leahy (Div. I, 1940), says Collins The National Company intentions directly point that Fine’s 133, 146 S. W. regularly employed Concerning against it. inadmissible were college get “to testimony he was headed toward a chauffeur’s *15 hap Mr. Leahy’s going accident son. That when the is where I was pened. purposes. ... Mr. and Mrs. I was not Leahy permitted were out of to nse town, but it was the car for my my duty own go after obey home) me to (in to and she told nurse defendant’s the ruling: in court remarked (136 610, respectively); the son” the and Louis may (City of St. “In considered some a conclusion be situations 942, and loc. cit. McCully (Mo. 939, 184 S. W. App.), v. Const. Co. there conclusions as here cases but we find case where such cited), no respective have any probative (138 611, been considered of value” and Leahy the ly). An not sustain understanding v. does of Collins controlling point in here. or even the are assertion remarks Leahy’s time particular chauffeur was at the The ivas whether issue Leahy. place a mission for discussion makes clear on The Leahy’s no point the accident occurred at where chauffeur had right traveling to that which be and in a different direction to while going he would been where he testified proceeding have had he been going. In was explanation, he was the absence there any testimony contrary juristically none, physical such facts was consequently probative value involved in issue and lacked place question in on stated establish that the chauffeur was at although meaning was, Leahy law he mission for generally within the way. c. appeal, former 344 Mo. l. speaking, on his See cases, foregoing 265, distinguishes 125 W. 882. The S. 2d 1. c. although A other factual de exist. element distinctions against injuries operator nature in an for one not the cisive action being purpose the automobile which the time are available used of the occurrence. observable facts operator completes when the continues and the mission. Where operator going and what he was about is much the fact in as prevents volved when accomplishment the occurrence the mis as what otherwise would have sion he done. One’s intent or motive many Extrajudicial in is a factual issue. instances statements thereof gestae. Ethyl part admissible -when of res v. Gasoline are Edwards 106, holding 112 W. Corp., 98, 555, 560[3, 342 Mo. S. declara 4], immediately preparatory to, accompanying tions made and in gestae question part act progress of the in admissible res tending explain character, pur “to and as show the intention and trip.” testimony “going Fine’s that he pose of down on amake collection” et cetera was Newstead to material and admissible. 627, ; Brown, v. State Lyle, Vansickle v. 296 Mo. 634[5] ; 246 W. 435(II), Florio, Branchini 119 Conn. 885[2] Atl. 672[4], mother, plaintiff’s who Plaintiff’s acted behalf, testified detail, objections exceptions, over made statements that, effect, after occurrence plaintiff sometime he wanted necessary way that, what was in the of medical attention have
1197 effect, lie pleaded charge against in to have her him dismiss driving going careless he plaintiff. as was take care of We plaintiff’s testimony conclude contention that this was ad an implied against missible as negligence admission interest of and liability is not well taken presented. language on the record There is in Morrow v. Inc., 1166, Orscheln Truck Lines, App. Bros. 235 Mo. 151 1177, S. W. 138, supporting plaintiff’s 2d contention 143[3], that the with respect admissible; evidence attention to medical was but the discussing court was there evidence introduced before the Compensation Workmen’s Commission and the instant contention was presented Wood, 309, not or ruled. Brown v. 201 N. 160 281, C. S. E. Briggs 283 Co., 444, and v. John Yeon 168 [3], 239, Ore. 122 Pac. 2d factually. admissibility differ The of the statement with 450[9], respect against may medical but, attention defendant be close circumstances, we consider statement an offer of remedial Kresge Shain, assistance. ex 154, State rel. S. S. Co. v. 340 145, Mo. 101 S. W. 19 14, argument turning against 2d an states that [7], medical, corporation voluntarily fact it necessary had furnished expense care and neg attention considerable an admission of ligence liability highly unfair and prejudicial. Winter v. Van Blarcom, 418, 498, 258 Mo. 423 167 S. W. [1], 499(1), held proper striking testimony that defendant stated he would do power all in help be responsible would for all debts worry, considering testimony such as an pay offer to for the injured boy treatment of an an liability. and not as admission of testimony respect with incompetent The to Fine’s arrest was been (Mo. App.), should have excluded. Hoffman v. Graber 153 S. W. 2d 817, Sup. (Mo. Marrah J. & R. Motor App.), v. Co. 819[1]; 271, 165 W. 276 2d S. [6], says plaintiff
But defendants not avail themselves of objections interposed sufficiently situation because the were not specific; is, objection ground that no there was on the the evidence prejudicial. Span Co., 158, v. Jackson-Walker & M. 322 C. Mo. evidence, 16 178(VII), 190, objection S. W. 2d holds 200[19], is immaterial does not reach contention upon appeal that such prejudicial, reasoning evidence was if not material it preju could not Generally, objections specific dice. should be sufficiently inform opposing objectional counsel and court of feature that an opportunity, any exist, if be afforded for removal. its Rockenstein v. Missouri Pac. Rogers, 326 Mo. Ed. Co., 468, 486, 333 Mo. 31 S. 374, W. 387 2d 792, [12], 62 S. W. 801 ; Scott 834, v. 839 Shain, ex rel. Randall v. 201, Mo. 108 [14]; State 211[3], 122, S. W. 2d 128 There is a modification of this rule instances [4]. clearly incompetent so where the evidence is no exists there objectional competent. feature for removal to make it See v. State 317 (Banc), 766(II), Mo. 297 S. W. 12[3, Baldwin 4]; (Mo. ; 34 App.), Houchin v. S. W. 2d Hobbs Sexton v. 172[5] Kelly (Mo. W. American App.), 857[1]; Lockwood. objections 22, 178 S. W. Co., App. 20, Ins. Cent. 282[1]. competent “not the evidence was interposed thoughts embraced the “not any issue” and was any issue”; “not material ’’way. privileged are binding any In the defendants circumstances although specifically testimony, present prejudicial issue of to including practice. post been better thought would have These such binding” on defendant were “not defendant Fine rem statements-of Company’s National Company. The court understood the objections interposed. prior position *17 Company National did not that defendant Plaintiff’s assertion by the record which shows that evidence is refuted object this 'on behalf of defendant objection appeared interposing counsel ' Fine: well as defendant Company readily at a retrial be so obviated presented can other issues The we them. need discuss cause is remanded. Westhu'es and the judgment is reversed CC., Barrett, concur. adopted foregoing opinion Bohling, C., PER CURIAM: The judges concur. opinion All the as the court. Floy J. G. S. at the Relation of Lane, Nickerson, Missouri,
State Virgil Casey Rose, Lineberry, Relators, v. Everett V. Jr., (2d) 38543. 175 W. Judge the 3rd Circuit. No. Judicial 768. One, December
Division