author: LACKLAND H. BLOOM, Special Judge.

text:
    Fred A. BOYER, Plaintiff-Appellant, v. George CALLAHAN and Kenneth Downs, Defendants-Respondents.
    No. 32151.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied Sept. 13, 1966.

      John J. Relies, John J. Stewart, Clayton, for plaintiff-appellant.
    Carter, Bull, Baer, Presberg, Lee & Stan-ard, Richard O. Funsch, St. Louis, for defendant-respondent George Callahan.
    Dennis J. Quillin, Clayton, for defendant-respondent Kenneth Downs.
   LACKLAND H. BLOOM, Special Judge.

Plaintiff-appellant instituted suit in the City of St. Louis against the defendants alleging that they “owned, kept and harbored a collie dog of dangerous and vicious propensities,” and that they negligently allowed and permitted said dog to bite the plaintiff. The parties will hereafter be referred to in accordance with their designations in the trial court. The jury returned a verdict in favor of plaintiff and against defendant Callahan in the sum of $9,000 and in favor of the defendant Downs. The trial court sustained a motion of defendant Callahan for judgment in accordance with his motion for a directed verdict and in the alternative sustained defendant Callahan’s motion for a new trial. The court further sustained the plaintiff’s motion for a new trial as to the defendant Downs. This appeal is from the order of the trial court sustaining defendant Callahan’s motion for judgment and in the alternative his motion for a new trial. No appeal has been taken by defendant Downs from the order granting plaintiff, a new trial as to him.

We will set forth only those facts essential to a consideration of the issues raised on this appeal. The defendant Downs and his wife owned a farm in Hematite, Missouri, where they raised chickens for the purpose of producing eggs for sale. On July 3,1962, pursuant to prior permission granted to him, the plaintiff Boyer and his family came to a portion of the Downs farm for the purpose of camping out over the 4th of July holiday. Boyer and his two boys had remained on the farm, sleeping in Boyer’s truck, on the evening of July 3rd. The next morning plaintiff experiencing a call of nature went behind his truck for the purpose of relieving himself. While so engaged and standing behind the truck, he was attacked and bitten by a collie dog on a private and very sensitive part of his anatomy. It is not necessary for purposes of this review to set forth the nature or the extent of the alleged injuries sustained by plaintiff by reason of the dog’s bite.'

The evidence is in conflict as to who owned the dog on the date of the attack on plaintiff. Plaintiff had not seen the dog prior to the attack at any time. Peggy Downs, wife of the ' defendant Kenneth Downs, testified for the plaintiff that the defendant Callahan had brought the dog out to their farm and had asked her husband if he could leave it there for “ * * * a few days to see how it would get along * * She testified that Callahan had said that he couldn’t keep it in the city any longer “Because it had gone over after some lady * * * ” and they had to get rid of the dog. They brought it out to their farm to see how it would work out there and to see what they could do with it. She testified that she was present when the dog was brought out and the dog acted all right. But when it was taken to the garage it would curl its lip up and snarl and she did not go near it because she was afraid of it. Mr. Callahan brought some dog food and two red dog bowls with the dog. She saw the dog lunge at one of the men who worked on the farm and it bit him on the arm but didn’t hurt him very much. She thought it was the next day after the dog had been left there and was positive that it was before the plaintiff was bitten. She said after the plaintiff was bitten that they never saw the dog as it ran away. She testified that she was afraid of the dog and told her husband to give it back to George. On cross-examination she stated that Mr. Callahan had said the police had been called because the dog was frightening some people or some ladies.

Defendant Callahan testifying on his behalf stated that he had acquired the dog in July, 1959, as a pet for his five children when the dog was six weeks old. He kept the dog in his back yard until it got large enough that it would jump the fence and he then had a special fence built for the dog which was six feet high and enclosed an area about four feet wide and twelve to fourteen feet long. He testified that he never knew the dog to harm any of the children or show any animosity toward any other people or to act in a threatening manner toward any person. He had received a complaint that the dog annoyed a party in the neighborhood with his barking. On cross-examination he stated that the police came to see him about the dog on one occasion in March or April of 1962 and merely advised him that a neighbor had complained about the dog barking and disturbing her stepfather. They asked him to try to keep the dog quiet.

He had known defendant Downs for approximately fifteen years. He knew that Downs owned other dogs and asked him, “Would you like to have another dog?” He said he thought this conversation took place in his, Callahan’s, office in the city and that at that time Downs said that he thought he would like to have another dog. Within a few days prior to the time he took the dog out there he again talked to Mr. Downs and he said, “Yes, bring the dog out.” He thought he took the dog out to the farm on Saturday, June 30th, although it could have been on the following Sunday. He and two of his children took the dog to the Downs’ farm and Mr. Downs and his wife were there. The dog was on a leash when he took him out of the car and they went over to a picnic bench and sat down and gave the dog a chance to look around. They took the leash off of the dog and sat and talked for a few minutes. They looked around the farm and the egg factory and at that time the dog was put in a fenced-in enclosure. The dog jumped the fence and came back to them. They put him in a second time and he again jumped the fence. The dog was not acting in a vicious manner but in a friendly manner and came over to the kids. When they got ready to leave they put the dog in a wooden shed, like a garage, and closed the door and he and the children got in the car and drove off. He brought the dog’s collar, leash, two dog bowls, about a half sack of Purina Dog Chow, and six or eight cans of dog food. He brought everything except the dog house which wouldn’t fit in his station wagon. It was his intention to permanently give up ownership of the dog at that time. When he took the dog to Downs the dog was approximately three years old and quite a large dog. On cross-examination he denied ever hearing the dog snarl and did not hear it growl except in a playful way when the kids would wrestle with it. Nor did he ever have occasion to see it threaten any person. The reason he wanted to get rid of the dog was because his yard was too small for the dog or the dog was too large for the yard and because of the fact that a neighbor was complaining about the dog barking. He wanted to keep peace with the neighbors. He did not charge Mr. Downs anything for the dog as he was giving it to him. He did tell Downs that if for some reason, at a later date, Downs decided he didn’t want the dog, to let him know and he would come and get him and try and find someone else who would take the dog. He denied ever having received a message from Downs prior to the occurrence on July 4th to come and get the dog and stated that after he was advised that the dog had bitten someone and had run away that he and his children went down to try and find the dog but could not do so. He stated that he intended the transfer to be final but that he wanted Downs to know that if at some future time he did not want the dog, rather than just turn him loose, he would want Downs to call him and he would take the dog back and try to find another home for it.

Defendant Downs testifying in his own behalf stated that approximately a week before defendant Callahan had brought the dog to his farm he had a conversation with him in Callahan’s office. Callahan asked hirrj whether he would be interested in a dog and he explained to Callahan that he had an interest in dogs and that he had quite a few and didn’t want another dog. He had a hobby of raising dachshunds and had five females, and a male dog would present a problem. He stated Callahan then asked him if he would care for the dog for a short time. He got the impression from Callahan that the dog was causing quite a bit of trouble at home and he had to move the dog almost immediately. “I said I would help him.” He stated he was at the office again the Friday before Callahan brought the dog to the farm and that Callahan asked him if it would be all right to bring the dog that weekend. According to Downs nothing was said concerning the extent of the time that he was to keep the dog. He added, “I would assume from what they said they had to remove the animal almost immediately, did not want to destroy it. They felt attached to it because it was a children’s pet * * He testified that when Callahan first arrived with the dog it got in a fight with one of his dachshunds and he had to lock up the dachshund. While Callahan was there they put the dog in an enclosure and it jumped through the window and over a six foot high fence on two occasions. After Callahan had left he locked the dog in a utility shed but that the dog was able to escape by digging a hole through the floor. He kept enticing the dog into the shed with food but he would continue to escape and by Tuesday they abandoned any effort to confine him. His wife kept after him to call George from Sunday on and he did on several occasions. He did not reach him but left messages at his home and office. He notified defendant Callahan on the date of the accident. He told him his dog was loose and that he couldn’t get him and for him to bring his son Richard and let Richard get him. It was his intention when he took the dog not to keep him permanently but only for a short time while Mr. Callahan found a home for him “A few days, a week, at the most.”

On cross-examination Downs stated that the attack on the hired hand, .Johnson, which his wife had described, occurred after the plaintiff was bitten. It was on the same morning when they were trying to get hold of the dog. He did not think that the dog punctured Johnson’s skin but merely scratched him. He stated that he thought Callahan had said the dog had attacked a woman and had scared the gas man. “ * * He said bothering the gas man, for one thing, and attacked a woman down the street. By attack, I didn’t think he bit her. He just jumped on her and scared her, and he made the same type of motions toward me. I didn’t consider it ah attack, not a complete act of biting. I didn’t think he bit anyone yet. I did know the police had come concerning this woman about the attack the dog made on her.” He did not remember Callahan saying anything about barking. Mr. Callahan never told him the dog had bitten anyone.

The trial court in sustaining the post-trial motion of defendant Callahan for judgment in accordance with his motion for a directed verdict did so for the reason that “ * * * Callahan was not shown to be in possession, custody, charge or control of the animal at the time of the mischief; therefore, no case has been made as to him.”

Plaintiff asserts that the trial court erred in sustaining the motion for a directed verdict for the reason that (a) Missouri imposes an absolute liability on the owner of a vicious animal upon the theory of nuisance rather than negligence, and (b) liability attaches to the owner-bailor of such a vicious animal while in the possession of a bailee, and (c) such liability cannot be eliminated by a conveyance or tranfer to a third person. Respondent on the other hand contends that the trial court properly sustained the motion for a directed verdict for the reason that the evidence failed to establish a claim which would entitle plaintiff to relief. The question to be resolved is whether or not plaintiff made a submissible case for the jury as against defendant Callahan, and such determination must depend on a review of the evidence in a light most fa-voraDle to plaintiff. Mitchell v. Newsom, Mo.App., 360 S.W.2d 247, 248.

We start with the well recognized proposition that in a dog bite case, such as this, the gist of the action is the keeping of a vicious dog after knowledge of his vicious propensities. Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, 13 A.L.R. 485; State ex rel. Kroger Co. v. Craig, Mo.App., 329 S.W.2d 804, 809; Maxwell v. Fraze, Mo.App., 344 S.W.2d 262, 264; Mitchell v. Newsom, supra, 360 S.W.2d l. c. 249.

Plaintiff, to sustain his burden, must point out the evidence establishing the vicious propensities of the dog that bit plaintiff and that defendants knew or should have known of them prior to the occurrence involved in this action. There is in the record direct evidence of only one occasion in which the dog prior to July 4th undertook to bite or to harm any person. The defendant Downs’ wife testified that the dog attacked one of the hired hands the day after Callahan had left it and prior to the time the dog bit plaintiff. Defendant Downs testified that this occurred on the same day after the dog bit plaintiff. In any event, Callahan was not shown to have been present on that occasion and there is no evidence that he was aware of this occurrence. Plaintiff, of course, knew nothing about the dog either before or after being bitten by it. There is nothing in defendant Callahan’s testimony which would be favorable to plaintiff in regard to the vicious character of the dog prior to his delivering the dog to Downs. He did testify to the fact that a complaint had been made by a neighbor through the police of the dog’s barking. He denies any other knowledge of any vicious action of the dog except to state that he did hear it “growl” when playing with the children. He denies the conversations testified to by Mrs. Downs and her husband with respect to his reasons for wishing to find another home for the dog.

The only other testimony which would impose “scienter” on defendant Callahan with respect to a vicious disposition of the dog was that offered by defendant Downs and his wife regarding conversations with Callahan at the time or prior to the delivery of the dog. Mrs. Downs testified that she was present when the dog was delivered and that she heard Callahan ask her husband if he could leave it out there for a few days to see how it would get along. “ * * * he said he couldn’t keep it in the City any longer because it had * * * gone over after some lady—I don’t know how many people, but they called the police on him and they had to get rid of the dog, and so they brought it out to our place to see how it would work out there, to see what they could do with it.” On cross-examination she stated, “ * * * George just said that the police had been called because the dog was frightening some people or some ladies. I can’t remember, I think it was some old lady.” Defendant Downs testified with respect to such conversation as follows:

“Q Did he say what kind of trouble the dog. was causing ? * * *
“A I thought he said that the dog had attacked a woman and had scared the gas man.”

Later on Downs testified, “ * * * He said bothering the gas man, for one thing, and attacked a woman down the street. By attack, I didn’t think he bit her. He just jumped on her and scared her, and he made the same type of motions toward me. I didn’t consider it an attack, not a complete act of biting. I didn’t think he bit anyone yet. I did know the police had come concerning this woman about the attack the dog made on her.” If this evidence constitutes sufficient evidence of the viciousness of the dog, the jury would be entitled to believe Mr. and Mrs. Downs and to disbelieve Callahan’s version of the conversations. We think, however, that the most that the testimony could establish, either directly or by inference, would be that defendant Callahan was aware of the propensity of the dog to jump at or scare people and that there was no evidence of any propensity of the dog to bite or otherwise harm people. It is true that it was a large dog capable of jumping fences as high as six feet and could easily be expected to frighten and annoy old ladies. These would be propensities which would warrant an owner in seeking another home for the dog outside of a populous city but certainly not of such a nature, standing alone, as to require him to destroy the dog.

There is no evidence in this case that defendant Callahan had any knowledge of a propensity of this dog to bite. It has been held that the injury complained of must result from the exercise of the dangerous propensity. By this it is not meant that a dog must have bitten someone before in order to demonstrate a vicious propensity for biting. In Maxwell v. Fraze, supra, 344 S.W.2d l. c. 264, it was stated that, “ * * * The controlling element is not whether it is a first bite but whether the dog has a vicious propensity for biting known to its keeper. On the other hand, the bare fact of a prior bite does "not of itself establish the vicious propensity. The circumstances surrounding the occasion of the biting and its extent demonstrate whether the incident of the prior bite is sufficient evidence or some evidence of a vicious propensity of the dog to inflict injury.” Similarly, in the case of Mitchell v. Newsom, supra, 360 S.W.2d l. c. 251, this court pointed out the necessity for looking at the circumstances surrounding previous acts of the dog to determine whether there is sufficient evidence of a vicious propensity of the dog to inflict injury. In that case we held that it was not sufficient evidence to take a case to the jury where a child was bitten by a dog owned by the defendant and wherein other evidence showed that the dog barked violently at the trash man, jumped at a boy in the neighborhood and snapped at him. We held that this evidence, even though accepted as entirely accurate, fails to describe the circumstances under which it occurred with sufficient particularity as to be of any definite significance. We likewise believe that the evidence adduced by defendant Downs and his wife in this case with respect to the statements of Callahan as to the alleged attacks by the collie in this case on some woman, even if assumed to be true, standing alone devoid of any evidence as to the circumstances giving rise to such occasion, is insufficient evidence to warrant a finding that this dog had vicious propensities for biting which were known to defendant Callahan.

We believe accordingly that plaintiff failed to make a submissible case against the defendant Callahan. Missing is a sufficient showing of knowledge on the part of Callahan of any vicious propensity of the dog to bite.

Plaintiff argues that the evidence was in conflict as to the ownership of the dog after Callahan delivered it to Downs. This is certainly true and that issue was for the jury. The jury could find under the evidence that Downs was a bailee or caretaker for Callahan with respect to the dog and in such a case any knowledge as to vicious propensities of the dog to bite which Downs acquired during the bailment would be imputable to Callahan. 4 Am.Jur.2d, Animals, § 87. Mrs. Downs, testifying for plaintiff, stated that the day after Callahan left the dog it bit Johnson, the hired man. This was disputed by her husband, Downs, who testified in his own behalf and who fixed the occasion after the biting of the plaintiff. Apparently plaintiff accepts defendant Downs’ version because although pressed as he is to establish scienter on Callahan’s part, nowhere in either his initial or reply brief does he refer to or undertake to rely on this testimony of his own witness. We place significance on this fact in rejecting this evidence for the purpose of imputing some constructive knowledge on Callahan of a vicious propensity of this dog to bite.

Because of the disposition we have made of this appeal, it is not necessary to determine whether the court properly sustained the motion for a directed verdict on the specific ground set forth in its order. For the reasons stated the order' of the trial court in sustaining defendant Callahan’s motion for judgment in accordance with his motion for a directed verdict is affirmed. Cause remanded to the trial court for a new trial, if desired by plaintiff, against defendant Kenneth Downs.

ANDERSON, Acting P. J., and RUDDY, J., concur.

WOLFE, P. J., not participating.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Henry DeBACKER and Edward W. Dorson, Plaintiffs-Respondents, v. Russell S. FORBES and Loretta L. Forbes, Defendants-Appellants.
    No. 31942.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 13, 1966.

      William C. Barnett, St. Louis, for defendants-appellants.
    John H. Mittendorf, Union, for plaintiffs-respondents.
   DOERNER, Commissioner.

By separate counts in their joint petition plaintiff DeBacker sought to recover damages of $2600 for defendants’ alleged breach of contract for the sale of defendants’ land; and plaintiff Dorson, defendants’ real estate broker, sued for a commission of $190 he averred was owed him by defendants. Trial to a court sitting without a jury resulted in a judgment for plaintiff DeBacker for $2,000 on Count I, and one for plaintiff Dorson for $190 on Count II. Following the overruling of their motion for a new trial defendants brought this appeal.

At some undisclosed time in 1962 defendants employed plaintiff Dorson to sell 40 acres of unimproved land owned by them in Crawford County, Missouri, for a commission of ten per cent of the purchase price. Thereafter, on November 4, 1962, DeBacker and Mabel DeBacker, his wife, signed a sales contract which provided that they as purchasers agreed to purchase, and the defendants as sellers agreed to sell, the land in question; that the total price was $1600; that $100 earnest money was to be paid; that the property was not subject to any deed of trust; that the title was to be merchantable or purchasers would accept a title insurance policy issued by a qualified title insurance company in lieu of a strictly merchantable title; that the sellers were to furnish a general warranty deed, “ * * * subject to leases and to occupancy of tenants existing on the date contract is executed by purchaser * * none being shown in the spaces for that purpose on the printed form; and that the deed was to be made to Henry DeBacker and Mabel DeBacker, his wife. At the time they executed the contract the DeBackers paid Dor-son $100 as earnest money.

Dorson sent the sales contract to the defendants in Florida, who rejected and returned it. Dorson thereupon returned the earnest money of $100 to the DeBackers. At some subsequent time and place, not made clear by the evidence, defendants signed the same sales contract below the handwritten insertion: “We hereby agree to take $1900.00 cash.” Thereafter, apparently on February 9, 1963, at Dorson’s office, plaintiff Henry DeBacker alone signed below the handwritten insertion, “I herby (sic) agree to pay $1900.00,” and paid Dor-son $100 as earnest money. Dorson then had the title searched, which revealed three encumbrances of record: a note for $1800 executed by defendants, secured by a deed of trust on the property; a lease they had made on June 28, 1962 to Fred W. Wer-chow and June Elizabeth Werchow, his wife, which gave the lessees an option to purchase the property, and which was still in effect; and a judgment against defendants for $164.57. Dorson wrote the defendants on March 21, 1963, informing them of the encumbrances which had been found and advising them that they would have to be removed. Dr. Forbes replied, by a letter dated March 28, 1963, that he was not in a position to clear the title and that he didn’t want to close the deal.

The contract provided that the sale was to be closed at Dorson’s office in Oak Grove Village, Missouri, on April 15, 1963. At about 2:00 P.M. of that day Mr. and Mrs. DeBacker appeared in Dorson’s office. The defendants did not appear, and testified that the reason they did not was that Dorson had told them in a prior telephone conversation that inasmuch as they were unable to convey a clear title there was no need for them to appear on the closing date. The court sustained defendants’ objections to the conversation which occurred between the DeBackers and Dor-son, and no offer of proof was made, but the record does show that Dorson showed the DeBackers the abstract which revealed the encumbrances; and that DeBacker offered to pay Dorson the remaining $1800 of the purchase price, either by a personal check, according to Dorson, or mostly by a certified check and the remainder by a personal check, according to the DeBackers. Dorson testified that he refused to accept DeBacker’s check and told him: “ * * * ‘It will take so long to close this deal I don’t want to take your check and hold it.’ * * * ” DeBacker also testified that if Dr. Forbes had appeared at the closing and wanted actual cash in place of the checks he would have cashed the checks and paid cash.

About 10 days after April IS, 1963, Dr. Forbes appeared at Dorson’s office, told him that he wasn’t going to close the deal because he couldn’t clear the title, and demanded the abstract, which Dorson declined to give him. The evidence further shows that the DeBackers consulted Mr. G. C. Beckham of Steeleville, an attorney, who wrote the defendants a letter dated May 27, 1963, advising them that the De-Backers were willing to purchase the land subject to the lease and option of the Wer-chows, provided that the liens of the deed of trust and judgment were removed. The defendants did not reply, nor did they remove the encumbrances. In fact, Dr. Forbes admitted on cross-examination that he did not have the money to pay the note and deed of trust and the judgment, and that he was not able to do so until August, 1963, after he had sold another piece of property.

Dorson testified that the fair market value of the defendants’ 40 acres on April IS, 1963 was $3850. Walter H. Berger, another real estate dealer, who appeared as an expert witness on behalf of plaintiff, stated the fair market value was $4,000.

Defendants raise but two points concerning the judgment in favor of De-Backer. Pointing to that part of the sales contract which reads, “Deed to be made to HENRY DEBACKER MABEL DE-BACKER HIS WIFE,” they first contend in effect that Mrs. DeBacker was an indispensable party to the action. We think not. That sentence merely related to the manner in which the deed was to be made. The counter-offer submitted by defendants was not signed by Mrs. DeBacker and, as plainly appears, was accepted only by Henry DeBacker. But if her participation in the action was necessary, her nonjoinder was first raised by defendants (and then rather ambiguously) in their motion for a new trial. Having failed to raise the alleged defect by motion or answer before proceeding to trial they waived it. Civil Rules 52.06, 55.37, 55.43, V.A.M.R.; Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; McCreary v. Employers Mut. Fire Ins. Co., Mo.App., 378 S.W.2d 243; Bartlett v. De Graffenreid, Mo.App., 305 S.W.2d 906.

Defendants also contend that the trial court erred in holding that DeBacker made a good tender of the remainder of the purchase price, because the tender was in the form of a check or checks, instead of cash. No findings of fact or conclusions of law were requested or filed, and the judgment is in general terms, so that the basis of the court’s finding is by no means certain. Ordinarily a purchaser is not excused from making a tender unless a seller unconditionally refuses to perform, or the defect in title is irremediable. Hellrung v. Hoechst, Mo., 384 S.W.2d 561. In this case defendants concede that by their letter of March 28, 1963, they had informed Dor-son that they would not close the deal, and they did not either execute a deed or appear at the time and place specified for the closing. The trial court may well have concluded, therefore, that defendants had waived the necessity for a tender by DeBacker. Cooper v. Mayer, Mo., 312 S.W.2d 127; Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650, 79 A.L.R. 1231; Davis v. Barada-Ghio Real Estate Co., 163 Mo.App. 328, 143 S.W. 1108. Or, with equal justification, the trial court may have found that any requirement for the tender of cash was waived since no objection was made that the tender was by a check or checks, rather than by cash. It is undisputed that a tender was made. Mr. and Mrs. DeBacker, as well as Dorson, who was representing defendants in the sale of their property, so testified, and there was no evidence to the contrary. Dorson likewise testified that he refused to accept DeBacker’s check or checks, not on the ground that the tender was not in cash, but because of the unknown length of time it might take to close the deal, in view of the defects in the title and defendants’ letter to him of March 28. The fact that DeBacker tendered a check or checks rather than cash was not objected to on that ground by Dorson, and tender in cash was therefore waived. Domyan v. Dornin, Mo., 356 S.W.2d 70; Diehr v. Thompson Chemicals Corp., Mo.App., 281 S.W.2d 572.

As to the judgment in favor of Dorson for $190, defendants assert that he was not entitled to any commission since DeBacker had not made a legal tender; and that the judgment was excessive. What we have already said on the subject of tender disposes of their first allegation of error. And we may not consider the second,, because defendants did not preserve it for review by presenting it to the trial court in their motion for a new trial. Civil Rule 79.03, V.A.M.R.; Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75; Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: TOWNSEND, Commissioner.

text:
    Ann NEWELL, Plaintiff-Appellant, v. Wharton L. PETERS, Defendant-Respondent.
    No. 32154.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.
    Motion to Modify Opinion and Petition for Rehearing Denied Sept. 13, 1966.

      J. Jules Brinkman, Richard M. Stout, St. Louis, for appellant.
    F. Douglas O’Leary, M. E. Stokes, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   TOWNSEND, Commissioner.

Action for damages for injuries to person and property as the result of an intersection collision of automobiles. The case was submitted upon instructions permitting a verdict for plaintiff for primary negligence of defendant in failing to keep a vigilant and proper lookout and upon humanitarian negligence of defendant in failing to stop. Verdict for plaintiff for $4000 on account of personal injuries and for $250 on account of property damage. Defendant’s motion for judgment in accordance with his motions for directed verdict was denied, but defendant’s motion for a new trial was sustained as to the issue of liability only for reasons hereinafter stated. Plaintiff appeals from the order granting defendant a new trial. No appeal was taken by defendant.

Uncontradicted testimony by plaintiff and her witnesses was as follows:

On April 3, 1963, shortly before 9 A.M., plaintiff, driving her own car, was a participant in a funeral procession which was proceeding westwardly on Delmar Boulevard in the City of University City, with the lights of all cars turned on and with a funeral sticker on the windshield of each car. Plaintiff was in approximately the middle of the procession. A drizzle prevailed and plaintiff’s windshield wipers were operating. Plaintiff estimated her speed as she approached the locale of the collision at about 25 miles per hour and stated that she did not diminish her speed as she entered the intersection. As the funeral procession reached the intersection of Delmar Boulevard and Old Bonhomme Road, a north and south street, all cars preceding plaintiff passed through the intersection without stopping. Plaintiff testified that for a “little ways” before she reached the intersection the traffic light there was red and that it was red as she entered the intersection. She did not know when it had become red against the procession, but another witness testified that the light was green when the head of the procession entered the intersection. At the location in question, there are five traffic lanes on Old Bonhomme north of the intersection — two for northbound traffic and three for traffic coming from the north; one of the latter is a left-turn lane.

Four witnesses testified that at the time of the collision two southbound cars were stopped side by side on Old Bonhomme on the north side of Delmar, one of which would have been in the left-turn lane. Defendant stated that there was but one car stopped — in the left-turn lane — on the north side of Delmar and that he traveled in the lane just to the right of the left-turn lane, that there was another lane to his right. Defendant further testified that from the time that he came into Old Bonhomme, about 200 feet north of Delmar, until he reached Delmar he saw no vehicles pass through the intersection from east to west.

It is uncontroverted that, with the green light in his favor, defendant proceeded into the intersection and there collided with plaintiff’s car. Defendant stated that the middle of plaintiff’s bumper struck his left front area over the left front wheel. Plaintiff was unclear as to points of impact as she did not see the cars after the collision. Plaintiff’s petition pleaded excessive speed on the part of defendant, failure to maintain a vigilant lookout, failure to yield the right of way, and failure to sound horn. The petition recognized the existence of ordinances relating to signals and the electric traffic control of the intersection and even charged defendant with entering the intersection when the red electric signal was against his direction of travel.

Plaintiff also pleaded humanitarian negligence. Defendant’s answer, after admitting the mere fact of the accident, denies all other of plaintiff’s allegations and pleaded the contributory negligence of the plaintiff.

In its order sustaining defendant’s motion for a new trial the trial court rested its action on two of defendant’s specifications of error, namely, that

“a. Plaintiff was not entitled to an instruction submitting primary negligence on the part of defendant for the reason that she was guilty of contributory negligence as a matter of law in entering and crossing the intersection mentioned in evidence in violation of a traffic signal, as admitted in her own testimony.
b. Said instruction is misleading in that it inferentially gives the jury permission to find an automobile in a funeral procession may disregard traffic signals”

and in addition held that the Court erred in refusing defendant’s instruction A which in effect stated that the operator of a vehicle moving in a funeral procession shall not proceed against a traffic signal controlling an intersection and that if plaintiff did so plaintiff is not entitled to recover under a verdict directing primary negligence instruction.

The meaning and purpose of a red electric traffic control signal is self-evident: the respect almost invariably accorded to it sufficiently attests — if any evidence were needed — that the motoring public has a full and complete awareness of its significance. The steady red light is not merely a warning, advising the motorist to be watchful and ever on the alert; it addresses itself to him in compelling language. Its command to him is imperious: “Do not proceed !”

And so we come to the crucial question here: Is the vigor of that restraint in any degree abated by the fact that the relative motorist is operating his vehicle as part of a funeral procession? Plaintiff is of the opinion that there are no Missouri precedents in point and research has disclosed none. Plaintiff would have us regard the instant case as governed by a custom, allegedly universal, that an automobile will stop to allow a funeral procession to cross and not proceed through the procession until the last car has passed, and in support thereof cites us to one Illinois case. We fail to perceive the relevancy of custom for reasons hereinafter stated.

There is before us no evidence of the custom and we venture the opinion that it would be difficult to disregard locale and time and so to establish such a universal custom. Testimony to which plaintiff refers in her brief does no more than state the expectations of the individual witness. Hence there is no basis for the suggestion which plaintiff makes, namely, that this Court “could, and should take judicial notice of this custom”.

However it is clear that the custom contended for, even if it could be established by appropriate evidence, is not here relevant. From the alleged custom as stated by plaintiff, it is no doubt intended that the Court shall necessarily draw the corollary that vehicles in a funeral procession have a customary privilege of ignoring traffic signals. Can such a privilege exist in the face of legislative command that a vehicle shall not proceed through a red light? Obviously positive legislation overrides any inconsistent custom. Otherwise those to whom the law-making power is entrusted could find their functions emasculated. It is all simply a question of where that power resides — in the duly designated organ of society or in unorganized groups of inhabitants. The answer is not difficult.

We are not here confronted with an emergency situation where a sudden change of conditions renders it physically impossible for a motorist to honor the order transmitted by the light. That volition placed plaintiff in the position in which she found herself is well demonstrated by the “information” which she volunteered in the course of her testimony:

“Q. Now when you came up to that intersection, did you slow any from 25 miles per hour, by applying your brakes to sort of look around and see what would be coming?
A. No, I don’t think I did. A funeral procession has the right-of-ivay.” (Our emphasis).

There is no state legislation which permits the motorist generally to ignore the red light. The legislature has enacted specialized legislation conferring upon the drivers of named vehicles a limited and conditional privilege of departing from certain stated standards of care. By Section 304.022 it is provided: “The driver of an emergency vehicle may * * * (b) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation * * *.” The section defines an “emergency vehicle” with careful particularity. That definition does not comprehend a vehicle participating in a funeral procession. Plaintiff’s contention would in effect add a new category of emergency vehicles to those enumerated in the statute.

Nor is it possible to accept plaintiff’s attempted analogy of the instant case to the Stop Sign cases and particularly to Rodenkirch v. Nemnich, Mo.App., 168 S.W.2d 977, upon which plaintiff relies. The rationale of the latter case is made clear by the following portion of the opinion: “ * * * at the time of the occurrence in question there was no statute requiring persons operating motor vehicles at that point on Old Florissant road to stop in obedience to said sign. The State Highway Department, by erecting such signs at highway intersections, cannot create a standard of conduct for drivers of motor vehicles, violation of which the courts must declare to be negligence regardless of all other facts and circumstances.” (168 S.W.2d at p. 979). (Our emphasis). Here the plaintiff has pleaded the existence of ordinances relating to “the electric traffic signal controlling the approach and movement * * * of traffic into said intersection” ; hence there was here clearly admitted legislative creation of a standard of conduct for motorists which serves to differentiate the present case from that upon which plaintiff relies.

Plaintiff would have us believe that the rule that a motorist cannot achieve a complete immunity by “relying absolutely upon a favorable green light” carries with it as a necessary concomitant the proposition that a motorist burdened by a red light cannot be declared guilty of negligence as a matter of law for violation of the red signal. This suggestion cannot be accepted. We know of no process of reasoning by which the latter proposition can be derived from the former. The motorist with the green light in his favor who drives into an intersection without maintaining a proper lookout can scarcely be equated to the motorist who, seeing the red light against him, nevertheless chooses deliberately to ignore it. In the latter case the duty to honor the command of the red light is a duty “unmixed with the exercise of judgment” (see Lincoln v. Railway Express Agency, Inc., Mo., 359 S.W.2d 759, at p. 766). It is a duty in no way here qualified by circumstances of “emergency or of impossibility. It is a duty whose rigor is intensified by the motorist’s ever-present knowledge that others rely for their safety upon his obedience to the command of the light.

It must be. held that plaintiff’s conduct constituted contributory negligence as a matter of law.

The matter of humanitarian negligence remains to be considered. We review the procedural steps followed. The case was submitted to the jury under both primary negligence and humanitarian negligence instructions. The jury returned a general verdict in favor of the plaintiff. Thereafter defendant filed the following motions : 1. To set aside the verdict and judgment and to enter judgment in favor of the defendant in accordance with his motions for directed verdict, on the grounds that the evidence wholly failed to establish any negligence on the part of defendant and wholly failed to establish that any conduct on the part of the defendant was the proximate cause of plaintiff’s injuries; 2. To grant defendant a new trial. The latter motion complained of alleged errors in giving (a) the primary negligence instruction, and, (b) in giving the humanitarian negligence instruction. The trial court did not rule on the motion for judgment in accordance with defendant’s motions for directed verdict. (See Luethans v. Lahey, Mo.App., 237 S.W.2d 209). The trial court granted defendant’s motion for a new trial on the issue as to liability only on the basis of defendant’s specifications of error in the primary negligence instruction. The Court did not rule as to the alleged errors in the humanitarian negligence instruction. The order of the Court granting a new trial ordered that “the jury verdict as to the amount of damages be and is hereby held in abeyance until the conclusion of the retrial of the cause as to liability, and to be entered upon the verdict if found in favor of the plaintiff.” Appeal was taken only by the plaintiff.

Where, as here, defendant’s motions for directed verdict were preserved by an after-trial motion in the .Circuit Court and plaintiff appeals from an order granting a new trial the reviewing court will at defendant’s urging examine the evidence to determine whether or not plaintiff made a case for the jury. Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918; Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609; Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73. If the “record plainly shows plaintiff under the law and the evidence cannot recover, the parties should be spared the trouble and expense of another trial.” Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 336, 8 A.L.R.2d 710; State ex rel. and to Use of Williams v. Feld Chevrolet, Inc., Mo.App., 403 S.W.2d 672 (May 17, 1966). And so an examination of the evidence is necessary for the purpose of determining whether plaintiff made a submissible case on humanitarian negligence.

The evidence is reviewed from a standpoint favorable to plaintiff; she is given the benefit of any part of the defendant’s evidence favorable to her which is not contradicted by her own testimony or contrary to her own fundamental theory of recovery. We disregard all defendant’s evidence unfavorable to the plaintiff. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Sperry v. Tracy Dodge-Plymouth Co., Mo., 344 S.W.2d 108; Brantley v. Couch, Mo.App., 383 S.W.2d 307.

Plaintiff had been proceeding in the procession at an even pace with no noticeable variation in the distance between her car and the next one ahead, which was from 18 to 20 feet in the lead. The funeral procession proceeded in the same lane of Delmar Boulevard throughout and there were no cars moving alongside the plaintiff. The light was green when the head of the procession entered the intersection and all cars preceding that of plaintiff passed through the intersection without stopping. When a motorist on Delmar was about a car length east of the intersection he could see north on Old Bonhomme for a distance of about 100 feet. When plaintiff approached the intersection and was at its edge she looked to her right but did not see beyond two cars that were stopped side by side in the Old Bonhomme southbound traffic lanes. The driver of the car behind that of plaintiff saw defendant’s car approaching when the latter was behind the cars stopped on Old Bonhomme; at that time the witness was about 20 feet behind plaintiff’s car and in the intersection. At the moment of plaintiff’s first sight of defendant’s car the distance from the front of her car to the closest point of defendant’s car was 8 to 10 feet. She did not see defendant’s car until just an instant before the collision — “it all happened so fast”, * * * “just a fraction of a second before the impact.” The car was "right at” her when she first observed it. Under the conditions then prevailing plaintiff could have stopped her car in a car and half length from a speed of 25 miles per hour. Plaintiff’s car was almost across Old Bonhomme at the time of impact; at the point of impact the front of plaintiff’s car had almost reached the extension of the west curb of Old Bonhomme. Defendant drove onto Old Bonhomme from a side street at a point about 200 feet north of the intersection and proceeded south-wardly at 15 to 20 miles per hour. Defendant estimated his speed at the moment of impact at not over 15 miles an hour. When defendant first saw plaintiff’s car it was approximately at the front of the car which was in the left-turn lane on Old Bon-homme facing south. As the defendant approached the Delmar intersection the only thing that obstructed his view of the intersection was the car sitting in the left-turn lane on Old Bonhomme; while he could not see through that car he could see across it. He could see on both sides of that stopped car from the point where he turned into Old Bonhomme. Normally when a motorist is 50 feet up Old Bonhomme from the intersection he can see “quite far east” on Delmar. While the car which was in the left-turn lane on Old Bonhomme obscured the view which defendant had to the east, it did not amount to total obstruction of the view.

At the intersection in question there are five traffic lanes on Old Bonhomme — two for northbound traffic and three for southbound. Each lane is 10-12 feet in width. Defendant was traveling in the extreme right (or curb) lane for southbound traffic. Plaintiff was traveling in the middle lane of three westbound lanes on Delmar.

Defendant’s attack upon plaintiff’s case concerns itself with the problem of the zone of imminent peril and with the question of defendant’s ability to stop.

Throughout the whole period during which plaintiff was passing into the intersection and progressing to the point of collision the red light was against her and hence the green light was in favor of defendant. The distance traveled by plaintiff under the latter circumstances was over forty feet and while plaintiff was traversing this distance at 25 miles per hour defendant was approaching the intersection at 15-20 miles per hour. Guidelines for the determination of the zone of imminent peril were long since laid down. Thus, it was stated in Frandeka v. St. Louis Public Service Company, Mo., 234 S.W.2d 540, 547 that “This zone commences and the duty of a driver of a moving motor vehicle begins when he saw, or could have seen by the exercise of the highest degree of care, that the person approaching the path of his vehicle was oblivious to the danger and was intent on crossing his path * * *. It is his duty to act on reasonable appearances of obliviousness and at a time when action would be effective.” Here, from the defendant’s own testimony a jury could have found that defendant in the exercise of the highest degree of care could have seen plaintiff’s car in the intersection with the apparent intention of proceeding through although the red light was against her, a fact of which defendant must have been aware since the light was in his favor. Thereby there would have been presented to defendant a reasonable appearance of plaintiff’s obliviousness to danger. “ * * * it is true that where obliviousness, or the reasonable appearance of obliviousness, is present the duty to act arises when there is a likelihood, i. e., a probability, of danger. In such case * * * it would be error to instruct the jury that ‘likelihood of injury’ would not constitute imminent peril.” Borgman v. Crenshaw, Mo., 344 S.W.2d 134, 137.

While a motorist who has the light in his favor is initially entitled to rely upon the assumption that cross-traffic will obey the order of an unfavorable light, such reliance ceases to be justified when he sees, or by the exercise of the highest degree of care, should see, that a crossing motorist is proceeding on a collision course in violation of the light’s command. At that point the rule of humanitarian negligence comes into operation and for present purposes the initial question is: When does the crossing motorist reach a position of imminent danger ? It could reasonably have been found by the jury that the defendant, warned by another car stopped in the other through southbound lane on Old Bonhomme and having the ability by the exercise of the highest degree of care to discern plaintiff’s position in the intersection, should have realized that plaintiff was in peril before her auto had moved to a point one and one-half car lengths from the point of collision, a distance according to the evidence within which her car, moving at 25 miles per hour, could have been stopped. Teague v. Plaza Express Company, 354 Mo. 582, 190 S.W.2d 254. Defendant, by his testimony, could have stopped his car in less than a car length or not more than 20 feet. Accordingly, it was for the jury to determine whether defendant, by using the means available to him and by using the highest degree of care, could with reasonable safety have avoided injury to the plaintiff by stopping.

We look next to the defendant’s argument relating to the evidence of defendant’s ability to stop. One of plaintiff’s witnesses testified that defendant was traveling “around 40” as he approached the intersection, “about a car and half back” from Delmar. There was no evidence of the distance within which defendant’s car, traveling at such speed, could have been stopped. Therefore, says defendant, a basic element of plaintiff’s humanitarian submission was lacking. Plaintiff counters that, under Harrell v. Berberich, 359 Mo. 551, 222 S.W.2d 733, plaintiff is not bound by the estimate of her witness and may advert to defendant’s own testimony as to speed. Defendant estimated his speed at 15-20 miles per hour and testified that at 18 miles per hour he could stop his car with safety by emergency application of the brakes in less than the length of his car. Plaintiff did not testify as to the speed of defendant’s car.

The case of Harrell v. Berberich, supra, fully sustains the contention made by plaintiff; it makes clear that a plaintiff may have the benefit of defendant’s testimony as to speed if it is not “completely at war with his own positive testimony and the theory of his case.” This holding of the Supreme Court was reiterated in McDonough v. St. Louis Public Service Company, Mo., 350 S.W.2d 739, where, after stating that a plaintiff is not conclusively bound by his own or his witnesses’ estimates of time, speed or distance, the Court held that plaintiff was not conclusively bound by the unfavorable testimony of his bystander witness as to defendant’s speed but was “entitled to draw upon the other more favorable figures given” by defendant’s witnesses. In the latter case the Court also distinguished Fisher v. Gunn, Mo., 270 S.W.2d 869, relied upon by defendant, because in the latter, the Court held that plaintiff could not have the benefit of defendant’s testimony as to speed since such testimony was at war with plaintiff’s fundamental theory of the case — a theory of liability based upon speed itself. In the instant situation plaintiff’s case was not tried on a theory of defendant’s excessive speed. Here the matter of speed is pertinent only to the question of defendant’s ability to stop and so to avert the collision. Accordingly, defendant’s contention that a basic element of plaintiff’s case in this respect was lacking must be rejected.

We find that plaintiff made a submissible case of humanitarian negligence.

Defendant complains that the verdict was excessive and has briefed the point. As the defendant is not here in the position of an appellant, that subject is not before the Court.

The order of the Circuit Court should be affirmed.

Judgment affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: HOGAN, Judge.

text:
    James B. GORDON, v. PURITAN CHEMICAL COMPANY and Employers Mutual Liability Insurance Company.
    No. 8456.
    Springfield Court of Appeals. Missouri.
    Sept. 2, 1966.
    Rehearing Denied Sept. 26, 1966.

      Edward C. Friedewald, Robert R. Schwarz, Luke, Cunliff, Wilson, Herr & Chavaux, St. Louis, for appellants.
    Benjamin B. Tepper, Clayton, for respondent.
   HOGAN, Judge.

This appeal is taken from an order of the Circuit Court of Dunklin County affirming an award of compensation made to the respondent, James B. Gordon, under the provisions of the Workmen’s Compensation Law, Chapter 287, RSMo (1959), V.A.M.S. The Division of Workmen’s Compensation denied the respondent’s claim in the first instance, but on review the Industrial Commission reversed the Division’s finding and entered an award in favor of the claimant. The circuit court affirmed the award and this appeal followed. The broad question before us is whether the accident in which the respondent was injured “[arose] out of and in the course of his employment,” within the meaning of Section 287.120, par. 1, RSMo (1959), V.A.M.S.

The claimant is a traveling salesman. At the time in question, he was employed in the St. Louis office of the Puritan Chemical Company. Mr. Gordon’s assigned territory included St. Louis and parts of Missouri, Illinois and Kentucky. No part of Arkansas was in his territory, but because Mr. Gordon’s wife had relatives in Hot Springs, Arkansas, and he occasionally went there, the claimant had his company’s permission to solicit orders in Hot Springs. As the sales manager put it, “we thought he could sell a few people while he was there.”

In December 1962, while on vacation in Hot Springs, Mr. Gordon obtained an order from a Mr. Louis Cohen. Mr. Cohen purchased twelve gallons of cleaning materials, for which he was charged $45.10, plus an additional $6.01 for use tax and shipping charges. The claimant’s commission was $10.80. This was the only sale Mr. Gordon made in Arkansas. The claimant testified that if he had been called upon to “make the account good,” without returning any merchandise, it would have cost him about $27.00.

Mr. Cohen did not pay for the cleaning materials. Mr. Gordon’s attention was called to Mr. Cohen’s delinquency on several occasions, and on June 8, 1963, at a sales meeting in St. Louis, claimant was instructed to call Mr. Cohen to see if the account could be collected. As Mr. Gordon’s sales manager put it, claimant was told “to see what he could do to get this thing taken care of.”

On Wednesday, June 12, Mr. Gordon left St. Louis to work in his territory in south.east Missouri. He left St. Louis early in the morning, arrived in Kennett, Missouri, about 11:00 A.M., and made two calls in Kennett. “Somewhere around 12:30, 1:00 o’clock,” Mr. Gordon decided to go to Hot Springs. Kennett is 198 miles from St. Louis; Hot Springs is 248 miles from Ken-nett. Arriving in Hot Springs about 4:30 P.M., the respondent contacted Mr. Cohen. Mr. Cohen advised the claimant that “he didn’t want the merchandise, and * * * felt eventually [claimant] would get back and pick it up.” Mr. Gordon put the two cartons of cleaning materials in his car, and went to his mother-in-law’s store nearby. He assisted his mother-in-law in closing her store, picked up his brother-in-law and sister-in-law, and they all had dinner at a local restaurant. Claimant visited with his wife’s relatives until about 8:30 P.M., then left Hot Springs to return to Kennett. On the return trip, he was injured in an automobile accident. Other facts and details will be noticed in the course of the opinion.

The Referee’s finding, so far as it is material, was that:

“I find from the evidence that employee’s accident of June 12, 1963, did not arise out of or in the course of his employment with Puritan Chemical Company.”

The Industrial Commission’s finding, again so far as it is material, was:

“We find from all of the evidence that the employee, James B. Gordon, sustained an accident on June 12, 1963, arising out of and in the course of his employment with the Puritan Chemical Company. Corp v. Joplin Cement Co., [Mo.,] 337 S.W.2d 252.”

Needless to say, both these findings might well have been amplified, at least sufficiently to show how the controlling issues were decided, Michler v. Krey Packing Co., 363 Mo. 707, 718-719, 253 S.W.2d 136, 142-143 [8]; Dixon v. Art Bunker Motors, Inc., Mo.App., 387 S.W.2d 199, 204-205 [4]; Anno., 146 A.L.R. 123, 165-170, Sec. VI c (2) (1943), but perhaps they are sufficient to constitute an implied finding of the necessary ultimate facts, State ex rel. Probst v. Haid, 333 Mo. 390, 398, 62 S.W.2d 869, 872-873 [3,4], and in any event the essential and determinative issue is whether the claimant’s work created the necessity for his trip from Kennett to Hot Springs, even though he was serving some purpose of his own at the same time. If so, he was within the doctrine of dual purpose travel, his accident arose out of and in the course of his employment, and his injury was compensable. Corp v. Joplin Cement Co., supra, 337 S.W.2d 252, 255 [2]; Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344, 347-348 [2]; Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 183 [2].

In support of their respective positions, the parties have briefed and argued several points dealing with appellate review in Workmen’s Compensation cases. The claimant insists that the Commission’s award involves the resolution of a question of fact, and reminds us that we are not authorized to substitute our judgment on the evidence for that of the Industrial Commission. The premise of this argument is that since Mr. Gordon made a statement (recorded and transcribed) on June 21, 1963, in which he represented that he had been injured after making a call on a customer at Senath, Missouri, and later retracted that statement, the Commission’s decision necessarily involves a choice between conflicting factual statements. The claimant compares this case to Lashbrook v. Clipper Manufacturing Co., Mo.App., 377 S.W.2d 785, and other cases in which the employer and insurer have resisted a claim by introducing a claimant's prior inconsistent statement as an admission against interest. The appellants, on the other hand, contend that the determinative facts are largely undisputed, and strongly maintain that the Commission’s decision represents its conclusion that the claimant’s trip to Hot Springs was a dual purpose trip, and therefore is to be reviewed as a conclusion of law.

In our view, these arguments simply over-complicate the case. It is elementary that for purposes of review, administrative decisions, including Workmen’s Compensation cases, are often categorized as “conclusions of law” or “conclusions of fact.” The significance of the distinction is generally said to be that questions of law are matters for the independent judgment of the reviewing court, while questions of fact are reviewable only to the extent of determining that the administrative decision is supported by substantial evidence and is not unreasonable. 2 Am. Jur.2d Administrative Law, Section 618, pp. 461-462. So, in our own cases, it is held that when the finding in a Workmen’s Compensation case is one of fact, we are only authorized to determine whether the Industrial Commission could reasonably have made its findings, and reached its result, upon consideration of all the evidence before it, and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Corp v. Joplin Cement Co., supra, 337 S.W.2d at 258 [5]; Brown v. Weber Implement & Auto Co., 357 Mo. 1, 5-6, 206 S.W.2d 350, 352 [1, 2], On the other hand, awards of the Industrial Commission which are clearly reached by interpretation or application of the law, as distinguished from a determination of the facts, fall within our usual province of review and correction. Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292, 296-297 [6] [7]; Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, 65-66 [3-5].

Doubtless the classification of administrative decisions as being conclusions of law or conclusions of fact is historically sound and judicially useful, but it has also been recognized that the two terms are not amenable to precise definition, and that administrative decisions ordinarily involve both such kinds of determination. For several reasons, this case does not lend itself to realistic characterization in terms of the law-fact distinction. For one thing, the Commission’s finding, if it is sufficient, is a wholly implied finding of the necessary constitutive facts, and one could not confidently say by what steps the Commission reached its conclusion. For another, at least in our view of the case, the merits require determination of the essentially factual question whether the claimant had a personal motive in going to Hot Springs when he did, and the essentially legal question whether, given the personal reason for going, the claimant’s journey was a dual purpose trip. We do not regard it as necessary to a disposition of the merits to classify the award as a conclusion of law or a conclusion of fact, or to use the relatively meaningless term “mixed«question of law and fact,” and we decline to do so.

The claimant maintains — at least as we follow him — that the record supports an implied finding that Mr. Gordon had no personal reason to go to Hot Springs; he claims that the record evidence, and the reasonable inferences to be drawn therefrom, conclusively show that he was on his employer’s business, at his employer’s direction. To determine whether such finding could reasonably be made on the whole record, we will examine the evidence bearing on the nature and purpose of the claimant’s trip, taking into consideration, among other things, the Referee’s finding to the contrary and the consistency and inherent probability of the testimony. Michler v. Krey Packing Co., supra, 363 Mo. at 716-717, 253 S.W.2d at 140-141.

Mr. Gordon was employed to make sales in St. Louis, part of outstate Missouri, part of Illinois, and part of Kentucky. He had permission to make sales in Hot Springs when he was there, because he occasionally visited his wife’s relatives in Hot Springs. The claimant traveled nine routes through his territory, and Kennett, Missouri, was as close as he came to Hot Springs. Hot Springs, Arkansas, is 248 miles from Ken-nett, as noted.

During the unspecified time that he had had company permission to make sales in Hot Springs, Mr. Gordon had made one sale. It was several months delinquent when he took the trip in question. The total charge to Mr. Gordon, had the matter been left undone, would have been about $27.00. The claimant had been told by his employer “to see what he could get done to get this thing taken care of.” As the sales manager, Mr. Shifrin, stated, “Mr. Gordon was instructed to call Mr. Cohen and get something done about it.” Mr. Gordon had tried to call Mr. Cohen on two occasions, but had been unsuccessful. He had not written Mr. Cohen. On the day in question, the claimant had driven from St. Louis to Kennett, a distance of 198 miles. He arrived in Kennett about 11:00 A.M., and while in Kennett he made two stops. There were “four or five other prospective accounts that had bought in the past but hadn’t bought recently,” but Mr. Gordon did not call on them. He ate lunch, and about 12:30 P.M. decided to go to Hot Springs and return, a distance of 496 miles, before calling on other customers.

When Mr. Gordon arrived in Hot Springs, he called on Mr. Cohen, who returned the two cartons of merchandise. Mr. Cohen had been holding the cleaning material, because he thought the claimant would eventually “get back and pick it up.” Mr. Gordon spent about forty to forty-five minutes with Mr. Cohen, then contacted his relatives. He then spent about three hours visiting with his mother-in-law, his brother-in-law and sister-in-law.

At the time the trip was made, Mr. Gordon was apparently having some marital difficulties. In giving his second statement to the insurer’s representative, in which, he testified, he gave "all the correct details,” the claimant stated, “Well, I have problems at home with my wife. I felt that had she known I had been down to Hot Springs, she would have been quite upset and I felt that may be a white lie — if this report got back to her — would not hurt the situation as I was working in my territory.” At another point in the same statement, he said he had told Mr. Fry, the vice president in charge of sales, the same story (that he was injured while calling on a customer at Senath) “ * * * because I did not want to get this thing involved about Hot Springs with my wife, as Mr. Fry and my wife and I are fairly close, and I didn’t want it coming back to my wife * * At the Referee’s hearing, claimant gave the reason for his first, misleading statement as being, “I didn’t wish to tell my wife I had been down to Hot Springs. This was her home. I felt she would be rather upset if I had been down there without her, because of marital problems, traveling that far, I didn’t feel I wanted the family along.” Mr. Gordon also testified that he did not go to Hot Springs to see his mother-in-law, and being asked if the real reason for his trip was not that his wife wanted a divorce, he answered, “Never.” Again being asked to recall what he had said in his previous statements, Mr. Gordon answered, “I believe I made the statement that I had enough financial problems, or enough problems, I don’t want one more thing to give her an idea for a divorce. 1 didn’t say it would cause a divorce. It is a figure of speech.”

Giving effect to the Referee’s finding as a factor, and considering the consistency and inherent probability of the testimony, it could not reasonably be concluded that Mr. Gordon went to Hot Springs solely upon his employer’s business. This case is not parallel to the cases which the claimant has cited. Of course, the finder or trier of fact could consider the first, false statement as being an admission against interest insofar as it was inconsistent with the later testimony, and could consider it merely as impeaching the claimant’s credibility, cf. Johnson v. Simpson Oil Co., Mo.App., 394 S.W.2d 91, 96-97 [10]; 2 Larson, Workmen’s Compensation Law, Section 79.42, pp. 298-299, but the inconsistencies between the two accounts do not bear on the nature and purpose of the trip. The evidence tending to establish that Mr. Gordon had no personal motive to go to Hot Springs comes from him alone, and it is self-conflicting, inconsistent and inherently improbable. When he was asked if the reason for his trip to Hot Springs was to see his mother-in-law, Mr. Gordon answered, “No, not at all,” but he also testified that: He made the trip without finishing his business at Kennett; he undertook the round trip of 496 miles, after having traveled 195 miles earlier the same day, to collect an account which involved no more than $27.00 penalty to him, had it been left uncollected ; he had serious marital difficulties of some sort at the time, at least serious enough to cause him to try to conceal the trip from his wife; and his business in Hot Springs took only about forty to forty-five minutes, while his visit with his wife’s family took about three hours. Mr. Gordon’s testimony is not aided by his only other non-medical witness, who said that the claimant was instructed to call Mr. Cohen. In our judgment, the claimant’s testimony, so far as it is evidence that he had no personal motive to make the trip to Hot Springs, falls within the principle that the self-contradictory testimony of a single witness, unexplained by other circumstances, does not constitute substantial evidence. Welborn v. Southern Equipment Co., Mo., 395 S.W.2d 119, 125-126 [6].

Given Mr. Gordon’s personal reason for going to Hot Springs, the further question is whether the evidence permits the inference that his trip would have been made even though his private errand had been cancelled. Daniels v. Krey Packing Co., Mo., 346 S.W.2d 78, 84 [8]; McMain v. J. J. Connor & Sons Const. Co., 337 Mo. 40, 85 S.W.2d 43; Heaton v. Ferrell, Mo.App., 325 S.W.2d 800, 806. To reiterate the general test of compensability applicable to the facts at hand, it is: “If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.” Of course, as the claimant points out, the doctrine of dual purpose travel does not require the business purpose to be the primary or dominant motive for the trip; it simply requires that the service of the employer be a concurrent cause of the journey. Corp v. Joplin Cement Co., supra, 337 S.W.2d at 255; Gingell v. Walters Contracting Corp., Mo.App., 303 S.W.2d 683, 688-689 [3] [4]; Barragar v. Industrial Commission of Wisconsin, 205 Wis. 550, 238 N.W. 368, 371 [9], 78 A.L.R. 679, 683. All the same, the business errand must be of sufficient importance to justify the making of a trip by someone, Gingell v. Walters Contracting Corp., supra, 303 S.W. 2d at 689 [4]; 1 Larson, Workmen’s Compensation Law, Section 18.13, p. 294.11, and it is recognized that sometimes the relative insignificance of the business mission is the surest indication that it did not in itself motivate the trip. 1 Larson, op. cit., Section 18.14, pp. 294.12-294.14. The determinative factor here is whether the business errand was of such nature and importance that a trip by someone would have been necessary if the claimant had been unable or unwilling to attend to it by combining business with his personal objective. Gingell v. Walters Contracting Corp., supra, 303 S.W.2d at 689 [4]; 1 Larson, op. cit., Section 18.14, p. 29.14. See also Hancock v. Industrial Commission of Arizona, 82 Ariz. 107, 309 P.2d 242, 243-244 [3]; Barragar v. Industrial Commission of Wisconsin, supra, 238 N.W. at 370-371 [5-8], 78 A.L.R. at 682-683.

In this case, as we have said, the overwhelming weight of the evidence is that the claimant had a compelling personal reason for going to Hot Springs. Indeed, a careful reading of the entire record convinces us that it was a wholly personal trip, and that the service of the employer was not a concurrent cause of the travel. Manifestly, the employer’s business was not such as would either require or justify a special trip of 496 miles. Mr. Cohen’s entire order consisted of two cartons of merchandise, and the cost of the materials, so far as the employer was concerned, was about $23.50. This was the only item of business, so far as the record discloses, the employer had in Hot Springs. We think it would be wholly unreasonable to construe the employer’s direction to call Mr. Cohen, and to “get something done” about his account, as a direction to travel to Hot Springs from Kennett. There is no basis for saying that the trip was a dual purpose trip, and we conclude the injury was not compensable.

For the reasons indicated, the judgment affirming the award is reversed.

STONE, P. J., concurs.

TITUS, J., not participating because not a member of the court when the cause was submitted.

      . John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 527, 66 S.Ct. 299, 90 L.Ed. 278, 282, n. 3; Bingham’s Trust v. Commissioner of Internal Revenue, 325 U.S. 365, 378, 65 S.Ct. 1232, 89 L.Ed. 1670, 1679; 2 Am.Jur.2d Administrative Law, § 669, pp. 537-538.

      . The language is Judge Cardozo’s, in Marks’ Dependents v. Gray, supra, 167 N.E. at 183 [2]. It has many times been quoted with approval by our courts. See Heaton v. Ferrell, supra, 325 S.W.2d at 806, and cases cited n. 11.


author: WADDILL, Commissioner.

text:
    Michael EILERS et al., Appellants, v. Lonnie C. CARPENTER, Executive Director of the Louisville and Jefferson County Children’s Home, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    James A. Crumlin, Louisville, LeRoy Clark, James M. Nabrit, III, and Jack Greenberg, New York City, Anthony G. Amsterdam, Philadelphia, Pa., for appellants.
    James Brown, Louisville, for appellee.
    James A. Hubbs, Louisville, for inter-venor-defendant.
   WADDILL, Commissioner.

This action seeking a writ of habeas corpus was instituted by a mother on behalf of her five infant children to obtain their release from the Louisville and Jefferson County Children’s Home. This home obtained custody of these children pursuant to an order of the Jefferson Circuit Court. These children were residing in the above named home when the Jefferson Circuit Court refused to issue a writ of habeas corpus.

Petitioners have appealed to this Court. The parties to the appeal concede that during the pendency of the appeal the Jefferson Circuit Court awarded the custody of these children to their father, George Eilers, who presently has their physical custody. In these circumstances the question arises whether the Court should consider the merits of this appeal since George Eilers was not a party in the habeas corpus proceedings in the circuit court.

In this character of case the Courts are concerned only with deciding which party to the habeas corpus action is entitled to immediate possession of the children. Dake v. Timmons, Ky., 283 S.W.2d 378. A writ of habeas corpus cannot be directed against anyone not having the actual custody of the children. In Re Winburn, Ky., 320 S.W.2d 622; Stewart v. Fuson, 152 Ky. 137, 153 S.W. 247.

In the instant appeal the party against whom the writ was sought no longer has custody of these children. Hence we are unwilling to consider the appeal on its merits, i. e., whether the circuit court erred in denying appellants a writ of habeas corpus against the Louisville and Jefferson County Children’s Home since such a consideration would be only of academic value.

The appeal is dismissed.


author: HILL, Judge.

text:
    Sherrill HUFF, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    As Modified on Denial of Rehearing Sept. 23, 1966.
    Thomas B. Givhan, Charles W. Stratton, Givhan & Stratton, Shepherdsville, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appel-lee.
   HILL, Judge.

This appeal questions the propriety of a judgment of conviction in two consolidated cases: one charging appellant with reckless driving (KRS 189.290), in which the court’s conclusion and judgment fixed his penalty at $100; and the other charging the operation of a motor vehicle on a suspended operator’s license (KRS 186.620), on which his fine was assessed at $10. Former jeopardy is the one and only argument presented for reversing both judgments.

Appellant was traveling south on 1-65 about three miles north of Shepherdsville in Bullitt County when he observed through his rear-view mirror the state patrol cruiser operated by Officer Grossman passing other vehicles and about to catch up with him. Appellant had no operator’s license, same having previously been revoked for speeding. Officer Grossman did not. know of the revocation of appellant’s operator’s license, but appellant became fearful that the officer was pursuing him, so, he increased his speed to such an extent the officer’s attention was attracted by his speed, whereupon, the officer gave chase, both increasing their speed all the while. During the chase, Officer Grossman radioed the State Police Barracks at Elizabethtown, and the latter got in touch with State Patrol Officer Feltner, who was in the vicinity of Bardstown. Feltner and Grossman made contact by radio at a time when Grossman was about midway between Lebanon Junction and Boston, where the contact was ostensibly broken by the wrecking of Gross-man’s cruiser. Appellant was not far ahead of Grossman when the wreck occurred as he observed the dust from the cruiser as it left the blacktop highway. Upon seeing the dust, appellant slowed down, momentarily, but did not say whether he slowed down to 90, 70 or 20 miles per hour. Being uncertain as to whether Grossman was still pursuing, he resumed a high rate of speed of about 100 miles per hour on to Boston, a distance of two miles, thence east on Ky. 62 in the direction of Bardstown. Appellant met Feltner about three and one-half miles east of Boston. Feltner recognized appellant, turned around, and gave chase a distance of two to two and one-half miles where appellant stopped on a side road.

Officer Feltner thereupon arrested appellant and wrote out and gave him two citations to appear in the Nelson County Court. One citation was for reckless driving; the other one for driving under a suspended operator’s license. Officer Felt-ner returned appellant to the scene of Grossman’s wreck, where Grossman wrote out two citations with charges identical to those made by Feltner to appear in one of the courts of Bullitt County. Feltner’s citations showed the time of violations at 7:10 p. m., while Grossman’s two citations showed the offenses to have been committed at 6:50 p. m. These citations were filed in the record but do not ascend to the dignity of competent evidence, and there was no testimony by anyone as to the correctness of the time fixed in the citations or the time of the chase.

Appellant entered pleas of guilty in Bul-litt County and paid his fines there. He pleaded former jeopardy to the two charges in Nelson County.

Assuming Grossman was midway between Lebanon Junction and Boston when he wrecked, and further assuming that the radio contact between Grossman and Felt-ner was cut off at the time of the wreck (both of which are reasonable deductions), appellant traveled from four to four and one-quarter miles between the scene of the wreck and the place on Ky. 62 where he met Feltner. According to all the evidence, appellant consumed between three and four minutes traveling at the rate of near 100 miles per hour between the time Grossman was forced out of the chase and the time Feltner took it up.

It is our opinion that the acts and conduct of appellant constituted a continuing offense, and the fact part of his conduct occurred in one county and part in another does not give jurisdiction to both counties. He could have been properly tried in either county but not in both. Cf. State v. Licari, 132 Conn. 220, 43 A.2d 450.

The facts of the present case show appellant operated his vehicle at a great rate of speed,- in the neighborhood of 100 miles per hour, for about six miles. It was a continuous unlawful act and could not be split into separate offenses so as to justify the imposition of two penalties in each county.

We should hasten to emphasize here that we do not intend, by holding in this particular factual situation, to say that in no case may a person be prosecuted in two counties for traffic violations committed therein. Each case must be resolved on the facts of the particular case, and time may be an important factor in each case. For example, if appellant had traversed both Bul-litt and Nelson counties the entire length of the two counties or for a substantial distance with opportunity to slow down or vary his speed, we think both counties as a unit for venue could have properly prosecuted such conduct. But, assuming appellant drove his automobile at the rate of 100 miles per hour continuously for a distance of only 1,000 feet crossing the dividing line between two counties, it would be unrealistic and unjust to permit courts of two jurisdictions to split the offense and impose two penalties for the same unlawful acts.

It is true that, as we recently held in Commonwealth v. Devine, Ky., 396 S.W.2d 60 (1965), the constitutional guaranty against double jeopardy is inapplicable to cases not involving loss of life or liberty so that there is no constitutional inhibition against an appeal by the Commonwealth in such a case. This does not mean, however, that a second and separate prosecution for the same offense of which the defendant has been previously convicted or acquitted is permissible. That would amount to harassment and arbitrary treatment in violation of Section 2 of the Constitution of Kentucky, and a conviction might well offend Section 17 of our Constitution, which prohibits cruel punishment. So, even if the plea of double jeopardy may have been technically inaccurate, it was sufficient to raise the constitutional question.

The judgment is reversed with directions that it be set aside and the appellant discharged.

MONTGOMERY, dissents.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Clyde A. WHITLEDGE and His Wife, Elsie Whitledge, Appellees.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Madison-ville, Thomas L. Withers, Henderson, for appellant.
    William M. Deep, King, Deep & Brana-man, Henderson, for appellees.
   STEWART, Judge.

This proceeding was instituted in Henderson County by the Commonwealth of Kentucky, Department of Highways, against Clyde A. Whitledge and Elsie Whitledge, his wife, to obtain land to reconstruct U. S. Highway 41. The land sought to be condemned, which is an unimproved tract, abuts on the west side of the existing highway, approximately one mile south of the City of Henderson.

U. S. Highway 41 runs in a north-south direction through Henderson County. The east line of the landowners’ original tract fronted 318 feet on the right of way of the highway and extended back perpendicularly 259 feet on the south side and 266.25 feet on the north side. The west line of the tract, after the taking, remains unchanged at 321.7 feet in length. The land condemned by the Commonwealth for permanent right of way was .51 of an acre, which comprised an acquisition of 26 per cent of the original tract. The new right of way line on the south boundary is 66 feet from the old line; and, on the north boundary, is 71 feet from that line. The Commonwealth will own a strip 48 feet in depth between the new pavement and the newly established property line. When the highway is reconstructed, the deepest cut will be approximately three feet next to the property line at the south boundary.

The commissioners’ award in county court was $3520 in amount, $2520 of which was allowed for the value of the land taken, and $1000 of which was assessed as damages to the remainder of the property. The Commonwealth appealed from the award on the ground that it was excessive, and the landowners on the ground that it was inadequate.

All of the improved property in this general area is residential, the nearest commercial or industrial property being 1.5 miles to the south. One of the landowners testified he purchased the tract on which to construct a home, and admitted a house could be built on the land that remained. The Commonwealth introduced one appraiser who testified that the highest and best use of the land was residential and based his valuation opinion on such use. In addition, in formulating his valuation, he stated he relied upon prices recently paid for comparable properties sold privately in this community. His appraisals were: Market value of the whole tract, $9540; after value of the tract resulting from the taking, $4890; value of the land condemned, $3150; damages to the remainder of the tract from the taking, $1500; and total for the taking and the resulting damages, $4650.

This witness stated that a house could be built on the remainder of the lot at a distance of approximately 30 feet from the new right of way and in line with the Wayne Gregory residence, immediately south of the Whitledge property.

Clyde Whitledge, one of the landowners, gave these estimates: Market value of the whole tract, $15,000; after value of the tract resulting from the taking, $4000; value of the land condemned, $4050; damages to the remainder from the taking, $6950; and total for the taking and the resulting damages, $11,000.

Melvin Hunt, a witness for the landowners, testified to these valuations: Market value of the whole tract, $15,900; after value of the tract resulting from the taking, $5883; value of the land condemned, $4136; damages to the remainder of the tract from the taking, $5881; and total for the taking and the resulting damages, $10,017.

The last witness for the landowners was a real estate broker whose estimates were: Market value of the whole tract, $12,720; value of the tract resulting from the taking, $3170; value of the land condemned, $3450; damages to the remainder from the taking, $6100; and total for the taking and the resulting damages, $9550.

The jury found that the market value of the land taken was $3550 and that the damage to the remaining land, created by the taking, was $3680. The total verdict was for the sum of $7230.

Two grounds, which we believe are meritorious, are urged for reversal of the judgment: One was the refusal of the trial court to permit one of the landowners in testifying to state the purchase price paid for the property on August 10, 1956. The other was that the allowance of any damages in respect to the land not taken, under the facts presented, was not reasonable or valid. Also, certain other errors are assigned that will be discussed, as there will no doubt be another trial of this proceeding.

Five years and two months after the Whitledges purchased the property in litigation, the instant proceeding was begun to condemn the portion of it hereinbefore noted. When Clyde Whitledge, one of the landowners, was asked on cross-examination how much was paid for the property, the trial court refused to let him state the amount of the consideration. By way of avowal, he said that the price he gave for the property, plus 100 feet he subsequently sold off the south end to one Wayne Gregory, was $4500, which sum aggregated $10.76 per front foot. The trial judge’s reasoning in excluding the testimony concerning this sale was that, after a lapse of five years, the transaction was too remote in point of time to be resorted to as a proper standard to measure the market value of the property at the time of this condemnation proceeding.

In Nichols’ The Law of Eminent Domain (3rd Ed.), Vol. 5, sec. 21.2, pp. 411 through 414, it is pointed out that the price paid for property which is the subject of condemnation is admissible, if these conditions are satisfied: The sale was bona fide; the sale was voluntary, not forced; the sale occurred relatively in point of time; and the sale covered substantially the same property involved in the condemnation proceeding. In the case of Taylor, etc. v. State Roads Commission of Maryland, 224 Md. 92, 167 A.2d 127, the fact that a sale of similar property was made five years, one and one-half months prior to the commencement of the action to condemn did not render evidence of that sale inadmissible in such condemnation proceeding. The court said in that case:

“ ‘ * * * We think it the better policy, where there are any reasonable elements of comparability, to admit testimony as to the sales, and leave the weight of the comparison for the consideration of the jury, along with such distinguishing features as may be brought out on cross-examination or otherwise.’ ”

Cf. Maxwell v. Commonwealth, Dept. of Highways, Ky., 404 S.W.2d 9, 11, where evidence concerning comparable sales that took place six years before the taking was held not so remote as to lack relevancy in a condemnation action.

We conclude the sale price of the property in controversy on August 10, 1956, was pertinent to the market value of that property on October 3, 1961, and that it was prejudicial error to exclude this factor from the consideration of the jury.

Under the evidence introduced, the award in the case at bar of any amount for resulting damages was unauthorized. The only change that will be wrought in the size of the tract is the taking from it an average of 68.5 feet from the front or east side. The property was valued as a whole, before the condemnation, on a front foot basis by all who testified. The Commonwealth’s witness fixed $30 per front foot as his estimate; those testifying for the landowners set $40 to $50 per front foot as their appraisals. The landowners’ witnesses stated their valuations were based upon considerations that the highest and best use of the property was for a commercial or industrial purpose. As has been noted, the Commonwealth’s witness believed its most advantageous utilization was residential.

The witnesses for the landowners testified the damages that occurred to the remainder of the tract reduced its value 50% to 65%. The basis for such estimates seems to have been that, after the taking, enough land would not be left for a suitable building site, unless the landowners filled in extensively with dirt the balance of their tract. In this connection, one of the witnesses for the landowners said the most adaptable portion of the tract for all purposes, commercial, industrial or residential, was that condemned by the Commonwealth.

In considering the testimony as to valuations the jury found that the Commonwealth should pay $3550 for the strip facing on the highway. If and when the Commonwealth acquires this frontage at the figure assessed by the jury, or at some figure which may later be determined, it should not be compelled to pay, in addition, the cost of replacing a new frontage similar in all respects to the one taken. See Commonwealth, Dept. of Highways v. McGeorge, Ky., 369 S.W.2d 126. The landowners, who will be fully compensated, as is the usual case, for the land taken, are not entitled to receive more money, namely, $3680, by way of damages for a like amount of land that would add the necessary depth to the tract, in order that it may be made more suitable for a construction purpose of any kind. See Commonwealth, Dept. of Highways v. Raybourne, Ky., 364 S.W.2d 814. The instant proceeding was tried before this court handed down the opinion in Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, referred to hereinafter.

Thus, the award of the jury of $3680 for so-called damages to the remainder of the land amounted to a duplication of compensation. The McGeorge case, cited above, in speaking of such doubling of damages, had this to say:

“ * * * This has been a frequent incident of assessing separate elements of damage instead of confining the inquiry simply to the difference in market value of the landowner’s property as a whole before and after the taking, and is one of the pitfalls sought to be eliminated in the future by the rule set forth in Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963).”

As this action may be tried anew, it is necessary to discuss what we believe were other errors.committed in connection with certain evidence that was permitted to be introduced. The landowners’ counsel, over the objection of the Commonwealth, was allowed on cross-examination to go into some detail with the Commonwealth’s engineer in bringing out the distance the landowners would be required to travel up and down the highway to and from their tract in order to use the crossovers. The crossover to the north is 450 feet from the landowners’ property line, and the one to the south is 100 feet therefrom. No access rights were condemned, and evidence of this character has no place in a proceeding such as the one before us. See Commonwealth, Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104.

The landowners’ counsel was also allowed to ask the Commonwealth’s engineer, over the Commonwealth’s objection, why the taking was 10 feet deeper on this tract than on the Wayne Gregory property south of and adjacent to this tract. This was error. The question of the necessity of the taking as to amount was not put in issue in circuit court by the pleadings. This issue had already been determined in county court.

The judgment, we believe through clerical misprision, incorrectly allowed interest on the total recovery of $7230, although the sum of $3520, which was awarded by the commissioners, was deposited in county court. It is only the excess of the circuit court judgment over the county court judgment which should bear interest from October 3, 1961, as provided in KRS 177.087(5).

Wherefore, the judgment is reversed and the case is remanded for proceedings not inconsistent with this opinion.