author: CLEMENS, Commissioner.

text:
    Marie Margaret GOEDECKE and Ray C. Goedecke, Plaintiffs-Appellants, v. BI-STATE DEVELOPMENT AGENCY OF MISSOURI-ILLINOIS and H. F. Morgan, Defendants-Respondents.
    No. 32304.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 21, 1967.
    Application to Transfer Denied March 13, 1967.

      Gerritzen & Gerritzen, by Ray A. Gerrit-zen, St. Louis, for appellants.
    Vernon Riehl, St. Louis, for respondents.
   CLEMENS, Commissioner.

Defendant Bi-State Development Agency of Missouri-Ulinois has moved to dismiss this appeal, mainly because the statement of facts in plaintiffs’ brief violates Civil Rule 83.05(c), V.A.M.R. That rule requires a concise, narrative statement of the facts relevant to questions presented for determination; it forbids recitation of formal matters. Instead, in 29 numbered paragraphs, plaintiffs’ statement summarizes the pleadings, opening statements, voir-dire examination, testimony of each witness, objections, motions, instructions given and refused, arguments, verdict and after-trial proceedings. This violates the rule. However, plaintiffs’ brief does reasonably inform defense counsel and this court of the grounds of their appeal. We have decided to deny the motion and consider the merits.

The appeal presents two intertwined issues: Can a verdict stand against the defendant carrier when the jury found in favor of the defendant bus driver on plaintiff’s charge of negligently discharging her at an unsafe place ? Was the defendant carrier obligated to provide and maintain a safe landing zone for plaintiff passenger to alight from its bus onto a public street?

By Count I plaintiff Marie Margaret Goedecke sued Bi-State and its bus driver H. F. Morgan, claiming that because of their negligence in failing to provide her a safe place to land she was injured when she stepped from a bus onto a rough area of Bi-State’s bus passenger zone in a public street. Her evidence showed: She was a passenger on Bi-State’s Baden bus driven by its employee, defendant Morgan. She got off when the bus stopped at the intersection of Halls Ferry and Chambers Roads, public streets in an unincorporated area of St. Louis county. In coming to a stop the bus had pulled partly off the blacktop paving onto the graveled shoulder. This area was unmarked but had been designated and used as a bus passenger zone for many years. From the right side of the stopped bus a rocky shoulder extended outward eight feet to a ditch. The county “took care of the rock.” The underlying layer of the shoulder was hard packed rock, with numerous depressions. Someone — Mrs. Goedecke said “they” — spread gravel over the area from time to time. It had recently been graveled — no one said by whom — and the fresh gravel covered the depressions, giving the area a level appearance. (There was no .evidence of any other conduct of Bi-State relating to the bus passenger zone.) Mrs. Goedecke stepped down from the bus, took another step forward, and fell when her foot sank through soft gravel into a depression. Her injuries are not at issue.

Mrs. Goedecke pleaded and submitted that defendant Morgan and defendant Bi-State, by and through its employee Morgan, were negligent in discharging her at an unsafe place. The jury brought in a verdict against defendant Bi-State, awarding Mrs. Goe-decke $2,300 damages; but it found in favor of defendant Morgan. The court followed the verdict and rendered judgment against defendant Bi-State and in favor of defendant Morgan. Mrs. Goedecke was content; she did not file a motion for new trial. Bi-State filed an after-trial motion for judgment, contending that its liability could arise only from the negligence of its driver and' that the verdict exonerating the driver from negligence thereby exonerated Bi-State as a matter of law. The trial court agreed, and filed a terse memorandum:

“The Court is of the opinion in that plaintiffs’ amended petition alleged and charged Bi-State Development Agency, the corporate defendant, solely and only on the basis of the negligence of its operator, thereby invoking as its sole theory the principle of respondeat superior, and likewise, submitted to the jury on that theory only, it is the judgment of this Court that a verdict discharging the operator for whose negligence only it is sought to hold the corporate defendant, there can be no judgment against either defendant. * * * ”

The court took away Mrs. Goedecke’s judgment and entered judgment in favor of Bi-State. Mrs. Goedecke appeals from that judgment.

It will clear the air to note that one issue of the case has been finally adjudicated below and is not before us: the defendant driver was not negligent on the pleaded and submitted ground of discharging plaintiff at an unsafe place. This, because the jury so found by its verdict in his favor; judgment for him was entered accordingly; Mrs. Goedecke did not file a motion for new trial; and she has not appealed from the judgment in Morgan’s favor. That book is closed.

As pleaded and submitted by Mrs. Goe-decke, Bi-State’s negligence was derivatively based on Morgan’s active negligence; but by the verdict and judgment, Morgan was not negligent. So, Bi-State is not liable. Stoutimore v. Atchison, Topeka & Santa Fe Ry. Co., 338 Mo. 463, 92 S.W.2d 658 [1]; Stokes v. Wabash Ry. Co., 355 Mo. 602, 197 S.W.2d 304, 1. c. 308. As said in Presley v. Central Terminal Co., Mo.App., 142 S.W.2d 799 [4]: “The verdict of the jury [in favor of the employee] removed the very foundation upon which the charge against defendant Terminal Company of derivative liability rested. The foundation having thus fallen, the superstructure went down with it.”

Mrs. Goedecke now tries to escape this collapse of her case. She points to the principle stated in Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813 [4-7], and Stokes v. Wabash Ry. Co., supra. There, at 197 S.W.2d 1. c. 308, the court declared the general rule as to derivative liability, but added: “On the other hand, if the liability of the master is not predicated solely upon the negligence of the servant in whose favor a verdict has been found, but as well upon the negligence of another servant, then the verdict against the master will be sustained notwithstanding the verdict in favor of the servant.”

Mrs. Goedecke claims she comes within this exclusionary principle. She argues that Bi-State is liable — independent of the conduct of its driver Morgan — because Bi-State failed in its duty to provide a safe place to alight. She claims the present right to assert Bi-State’s independent liability on three procedural grounds: that the case was actually tried on that theory; that after final judgment she offered to amend her petition by pleading that Bi-State negligently failed to provide a safe place to alight; and that the trial court had refused a verdict-directing instruction based on that failure. Before trying to unsnarl these procedural contentions, we must determine the underlying-claim of liability: whether Bi-State had and breached a duty — separate from the conduct of its driver — to provide a reasonably safe landing area on the public highway.

The phrase “provide a safe place to alight” has two meanings in Missouri decisions. On one hand it refers to the duty of a carrier to erect and maintain a safe area for passengers to alight from its vehicle. The phrase is so used in cases where railroads maintain their own depots. On the other hand, the phrase refers to the duty of a carrier to stop its vehicle at a place where its passengers can alight with reasonable safety. The phrase is so used in cases where streetcars or busses operate on public streets.

Here, we are not dealing with the duty of a carrier, such as a railroad, that erects and maintains platforms on its own premises; such a carrier does have a duty to provide and maintain its platforms in a reasonably safe condition. (See 6 Mo. Digest, Carriers ®=J286.) Instead, we are dealing with the duty of a carrier that uses the public streets to discharge its passengers. Since carriers operating on public highways neither own nor control the highways, they are not responsible for the condition of landing areas — that is a municipal duty. See Lucas v. St. Louis & Suburban Ry. Co., 174 Mo. 270, 73 S.W. 589, where the carrier was held not liable for injuries caused by a stump in a passenger loading zone in a public street. See Hiltner v. Kansas City-Mo., 293 S.W.2d 422, where the carrier was held not liable for the defective maintenance of a safety zone used for discharging passengers in a city street. See, also, 14 Am.Jur. 2d, Carriers § 984, and 13 C.J.S. Carriers §§ 714 b and 716.

These respective duties of a municipality and a carrier are distinguished in Young v. Kansas City Public Service Co., Mo.App., 255 S.W.2d 113. There a passenger sued both the city and the carrier for injuries suffered from stepping into a hole in the city’s pavement when alighting from the carrier’s streetcar. At 1. c. 115-116 the court held it was the city’s duty to maintain the street in a reasonably safe condition, and the carrier’s duty to use the highest degree of care to stop the car at a reasonably safe place or, stated otherwise, to select a reasonably safe place for passengers to alight. The court quoted from Caley v. Kansas City, 226 Mo.App. 934, 48 S.W.2d 25: “The duty of the company is to stop its car at a point beyond or short of the defect in the street or to warn the passenger of its presence unless its presence is glaringly obvious.” To the same effect, see Beahan v. St. Louis Public Service Co., Mo.App., 213 S.W.2d 253 [5], and Wilson v. Kansas City Public Service Co., Mo.App., 238 S.W.2d 73 [1],

Applying these principles to this case, Bi-State’s only duty was to select and stop its bus at a place reasonably safe for Mrs. Goedecke to alight. Under the evidence here, the act of selecting and stopping the bus at a safe place was a duty that Bi-State could fulfill only through the mind and body of its driver, defendant Morgan. By its verdict in favor of Morgan, the jury found there was no breach of Bi-State’s duty. Beyond that duty, there was no obligation on Bi-State to provide a safe place to alight onto a public street. Thus, plaintiff’s evidence did not entitle her to a submission against Bi-State on any negligence except that of its driver, defendant Morgan. The trial court properly set aside the verdict and judgment against Bi-State.

This leaves only one other point raised by Mrs. Goedecke: her contention that the trial court erred in denying plaintiffs’ motion for a mistrial made when defense counsel argued to the jury that plaintiffs must prove their case “to your satisfaction and to the preponderance of the evidence.” The court denied the motion. Then, on plaintiffs’ motion the court instructed the jury to disregard the word “satisfaction.” The trial court dealt with this matter correctly and adequately; there was no prejudicial error.

By Count II, plaintiff Ray C. Goe-decke sued for medical expenses and loss of consortium. The jury found against him and in favor of both defendants. By his motion for new trial, and for his only point here, Mr. Goedecke says the trial court should have granted him a new trial on the issue of damages because liability was established by the verdict against Bi-State, and also because his evidence of damages was uncontradicted. Both grounds fail. As held, Bi-State was not liable; and the jury did not have to accept Mr. Goedecke’s evi-. „dence as to damages.

Finding no error on the grounds assigned by either plaintiff, the judgment is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, it is ordered that defendants’ motion to dismiss plaintiffs’ appeal be denied, and that the judgment he affirmed.

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


source: Caselaw Access Project

author: STONE, Presiding Judge.

license: Public Domain

text:
    Willie David GRAHAM, a minor, by Sam Bodine, Guardian, Plaintiff-Respondent, v. Willis CONNER, Defendant-Appellant.
    No. 8541.
    Springfield Court of Appeals. Missouri.
    Jan. 30, 1967.
    Motion for Rehearing or to Transfer Denied Feb. 24, 1967.

      Powell, Jones & Ringer, Marvin E. Jones,. Dexter, for defendant-appellant.
    C. H. Parsons, Jr., Dexter, Briney, Wel-born & Spain, Joe Welborn, Bloomfield, for plaintiff-respondent.
   STONE, Presiding Judge.

For injuries allegedly sustained in a “no eyewitness” accident in the City of Dexter, Missouri, on the afternoon of Saturday, October 31, 1964, plaintiff, then four years of age, obtained a jury verdict for $10,000 against defendant. From the judgment entered thereupon, as subsequently reduced by remittitur to $7,000, defendant appeals.

Defendant’s primary contention that plaintiff did not make a submissible case requires a detailed review of the evidence. The accident occurred in a residential area on Vine, an east-west street, in the block between Elm and Locust. A north-south alley, eleven feet six inches in width, intersects Vine near the center of that block, Elm being 191 feet east of the center line of the alley and Locust being 188 feet west of that center line. The traveled blacktop roadway on Vine is 20 feet in width. Along the south side of the roadway, there is a dirt parking space ten feet in width and, south of the parking space, first a concrete curb, next a “grassy area” or parkway six feet six inches in width, and then a paved sidewalk four feet in width. Along the north side of the roadway, there is a dirt parking space twelve feet six inches in width (with no curb or parkway) bounded on the north by a paved sidewalk. Much of this section of Vine is shaded by overhanging trees. In the south parkway, there is a venerable tree with very large trunk just east of the north-south alley, a row of thick bushes running east from that tree along the front of the first lot east of the alley, and another tree with somewhat smaller trunk a short distance west of the alley. In the north parking space, other large trees stand both east and west of the alley. Plaintiff Willie resided with his mother and stepfather (Chip-man by name) in the first house west of the alley on the north side of Vine. The front of the Chipman house was fifteen feet north of the north sidewalk on Vine and the east end of that house was twenty feet west of the center line of the north-south alley.

Some thirty minutes prior to the accident, plaintiff’s witness Nelson, a telephone repairman, parked the pickup truck used in his work, headed west, “approximately in front” of the Chipman house and “close” to the north sidewalk. His mission was to check “cable trouble in the alley.” In Nelson’s words, “from the time I arrived there the little boy [plaintiff] was out in the yard, right in front of [the Chipman] house, playing with a little red wagon . . . and he was up on my truck and I was getting him off the truck, and I started [south from Vine] down the alley there hunting for cable trouble.” Using a “stick” or “rod” running on rollers along the overhead cable, Nelson located the trouble at a point in the alley “approximately a hundred feet . that’s just a guess” south of the south sidewalk on Vine. Plaintiff followed Nelson down the alley to the point of the cable trouble and was last seen (prior to the accident) at that point “approximately a hundred feet down there” south of the south sidewalk. Telling plaintiff “not to bother my equipment,” Nelson returned to his parked truck “to get the tools out of the [north] side of the truck to fix the cable.” He had no idea “how long it took” to walk back to the truck, but he “walked at the normal rate of speed.”

While on the north side of his truck, Nelson first noticed defendant’s 1960 Pontiac automobile westbound on Vine, then “approximately 100, 150 feet” east of him, and traveling (so he thought on direct examination) at “approximately ten, five to ten miles an hour” or (so he agreed on redirect examination) perhaps “faster than ten miles an hour.” Thereafter, Nelson did not watch, but remainéd aware of, defendant’s approaching automobile— “from where I was standing, even out of the side of your eyes you can see a car coming down the street there.” He thought that defendant had maintained about the same speed, but he declined to estimate the elapsed time between his initial sighting of defendant’s, automobile and the moment of accident. Defendant’s course of travel was “on his own proper side of the street,” i. e., on his right-hand (the north) side of Vine.

As we have noted, Nelson was on the north side of his parked truck; but, when asked “whether or not your view was obstructed of the traveled portion of the . . street,” he replied, “no, I could see over the top of the truck.” Nevertheless, he testified emphatically that, after leaving the point of cable trouble in the alley, he did not see plaintiff again prior to the accident, and that he did not see the accident itself. However, he “heard the thud” and, running around his truck, went to plaintiff lying on the blacktop “sort of doubled up” at a point located by him (Nelson) as in the center of the 20-foot blacktop roadway, “slightly ahead” or west of his parked pickup, and 50 to 60 feet west of the center line of the north-south alley. Defendant’s automobile had stopped “just at an angle there . . . headed northwest.”

Plaintiff’s witness Capps, whose back yard abutted the north-south alley near the point of cable trouble (the north line of his lot was 106 feet south of the south sidewalk on Vine), had, while emptying trash in an alley receptacle, seen repairman Nelson and “a child ... I suppose it was a boy” under the cable where Nelson was working. “Later, I don’t know how many minutes it was ... I left the alley and went back in the yard, and I heard a noise ... it would be pretty hard to describe . well, I heard an impact of some kind . . I heard tires squealing, I also heard a thud, which come first I couldn’t swear to it . . whose thud it was and whose tires it was, I don’t know.” Anyway, Capps “went to the direction of the noise . . . over on Vine Street” and found plaintiff lying “close to the center line of the street” at a point which was “west of the telephone truck.” Capps’ initial statement that, when he arrived at the scene of accident, defendant’s automobile was standing “on the north side of the street, maybe a car length or a car length and a half beyond [west of] the boy” must be read in connection with his subsequent explanation and elaboration that “it was parked on the shoulder when I got there . . . somewhat north of where the normal traffic lane is . . .he had pulled free of traffic.”

The only other witness whose testimony in any wise pertained to the accident itself was plaintiff’s witness Ruth Corlis who was “sitting there crocheting” in the house west of the Chipman house when (as she said at one point) “I heard a bump like” or (as she put it later) “I didn’t hear anything any more than just the two cars that sounded like a thump or two cars maybe kind of bumped a little.” When Miss Cor-lis arose and went to the window — “I didn’t go out of the house” — she saw “two cars . standing there, one on the south side of [Vine] street and one on the north side, and a bunch of folks had got out of the cars and was standing there in the middle of the street,” all of which prompted the witness to volunteer “I think it was a car wreck.” There was no known eyewitness to the accident.

Plaintiff also introduced in evidence certain interrogatories propounded to defendant and his answers thereto. The substance of those answers was that no eastbound traffic on Vine had passed his automobile “immediately prior to the accident” and he was meeting no such “oncoming traffic at the time of the accident”; that nothing had obstructed his “vision of Vine Street just prior to the accident”; that he had not seen plaintiff prior to the accident and therefore had sounded no warning; and that “the point of impact” between his automobile and plaintiff had been “about ten feet west of the [north-south] alley.”

After his motion for a directed verdict at the close of plaintiff’s case was overruled, defendant offered no evidence. Whereupon, plaintiff submitted his case to the jury on a single assignment of primary negligence, i. e., that “defendant failed to keep a careful lookout.” By that submission, plaintiff abandoned all other pleaded grounds of negligence and, in determining the sufficiency of the evidence to make a prima facie case, we must confine ourselves to the sole ground submitted. In that inquiry, we consider the evidence in the light most favorable to plaintiff and accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence [Ornder v. Childers, Mo., 327 S.W.2d 913, 915(1); Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(8)], tempered only by the wise, judicious limitation that this rule calls for consideration of all, not merely an isolated part or parts, of the facts shown by plaintiff and does not require the court to supply missing evidence, or to give plaintiff the benefit of forced or unreasonable inferences, or to disregard the dictates of common reason and accept that which, on the whole record, obviously is not true.

Plaintiff’s theory of submissibility is a concatenation of assumptions (in some particulars alternative and diverse), combined with precise mathematical calculations employing imprecise estimates or approximations of speeds, and colored with an occasional dash of inaccuracy. The basic assumption is that, immediately prior to the accident, plaintiff approached the course of defendant’s automobile from the south. As developed in plaintiff’s brief, counsel’s theory of submissibility then encompasses and harnesses these further assumptions, to wit (1) that, as defendant’s automobile moved west on Vine, plaintiff traveled thirty feet six inches (i. e., four feet across the south sidewalk, six feet six inches across the south parkway, ten feet across the south parking space, and ten feet across the south half of the blacktop roadway) “within plain view of defendant”; (2) that plaintiff walked that distance at two to three miles per hour, i. e., at 2.9 to 4.4 feet per second, in 6.9 to 10.5 seconds [Bunch v. Mueller, 365 Mo. 494, 284 S.W.2d 440, 443(4)], or alternatively that plaintiff ran that distance at four to six miles per hour, i. e., at 5.9 to 8.8 feet per second, in 3.5 to 5.2 seconds [DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 635; Burroughs v. Henn, Mo.App., 269 S.W.2d 900, 902] ; (3) that, on the assumption that plaintiff had walked, during the aforesaid period of 6.9 to 10.5 seconds “defendant (at five miles per hour) traveled between 51.75 feet and 78.75 feet”; and (4) that “the jury could have found that defendant could have seen plaintiff walking or running toward the center of the street at a time when defendant was at least 78.75 feet from the point of injury.” (All emphasis herein is ours.)

In support of their insistence that the evidence reasonably permitted an inference (basic to their theory of submissibility) that plaintiff approached defendant’s automobile from the south but clearly forbade a contrary inference that he had approached it from the north, counsel present a two-pronged argument, to wit, (a) that, after repairman Nelson left the point of cable trouble and started north in the alley, plaintiff could not have returned to the north side of Vine because, if he had done so, Nelson would have seen him, and (b) that the elapsed time was insufficient to have permitted plaintiff’s return to the north side of the street prior to the accident.

Neither prong is persuasive. True, if plaintiff had overtaken and passed around Nelson in the alley, the latter no doubt would have noticed the boy. However, there is a house on the south side of Vine just west of the north-south alley; nothing in the record indicates that either the lot or the north-south alley is fenced; and, with the acts of a child four years of age being thoughtless, impulsive and “wholly unpredictable” [Vietmeier v. Voss, Mo., 246 S.W.2d 785, 790; Ozbun v. Vance, Mo., 323 S.W.2d 771, 775(3)], and with the accident occurring (so Nelson testified) 50 to 60 feet west of the center line of the alley and west of his parked pickup, the evidence reasonably would not have permitted any finding as to the specific route followed by plaintiff after he left the point of cable trouble. And with Nelson actively engaged in the performance of his work and charged with no duty to control plaintiff or to track his movements, counsel are in poor position to urge that Nelson’s failure to see plaintiff on the north side of Vine established that he had not crossed to that side of the street prior to the accident, particularly so in view of the further fact that Nelson likewise did not see plaintiff on the south side of Vine or so much as catch a glimpse of plaintiff out of the corner of his (Nelson’s) eye, even though in that wise he did see defendant’s automobile “all the way up the street” and formed an opinion that it maintained about the same speed to the point of accident, and even though, when asked “whether or not your view was obstructed of the traveled portion of the . . . street,” he stated positively, “no, I could see over the top of the truck.”

The argument of plaintiff’s counsel as to elapsed time runs along this line. “The total distance traveled by Nelson” from the point of cable trouble to the north side of his parked pickup on Vine, so they categorically declare, “was 151 feet” (including “approximately a hundred feet . . . that’s just a guess” in the alley, four feet across the south sidewalk, six feet six inches across the south parkway, ten feet across the south parking space, twenty feet across the blacktop roadway, and an arbitrary allowance of only ten feet six inches from the north side of the blacktop to the tool chest on the north side of his pickup which was parked “close” to the north sidewalk twelve feet six inches north of the blacktop and “approximately in front” of the Chipman house, the east end of which was twenty feet west of the center line of the alley). Confidently proceeding to precise mathematical computations employing not only the imprecise estimate that Nelson walked at a speed of two to three miles per hour, i. e., at 2.9 to 4.4 feet per second [DeLay v. Ward, supra, 262 S.W.2d at 635(9); Perry v. Dever, Mo., 303 3.W.2d 1, 5(3)] but also the inaccurate and insufficient assumption that he traveled only 151 feet, counsel explicitly conclude that it required “between 34.3 seconds and 52.1 seconds” for Nelson to walk from the point of cable trouble to the north side of his pickup.

Turning to defendant’s westbound automobile, counsel say that “the jury could have found that defendant traveled a distance of 150 feet at five miles per hour” and, perhaps wearying (as we are) of these repeated exercises in the dissection of seconds, momentarily lapse into inexactitude with the estimate that “this would take . . 20 seconds.” Then, in a continuing effort to minimize the period immediately prior to the accident during which plaintiff’s movements were wholly unaccounted for, counsel assert that this 20 seconds was “consumed . . . either just before or at the time Nelson got to his truck,” offering in support of this conclusion one segment of a long narrative statement by Nelson to the effect that he had walked around the pickup to get tools “out of the side of the truck . . . and in the meantime I saw Willis [defendant] coming down the street.” But, taking Nelson’s testimony as a whole, as we must do, it is clear that this additional period approximated by counsel at 20 seconds began after Nelson had reached the north side of his parked pickup and had been there an undisclosed (although presumably brief) period of time. For, when specifically asked “where you were at the first time you noticed [defendant’s] car,” Nelson answered in plain and unambiguous language, “I was on the north side of my truck”; and, it will be remembered that thereafter Nelson saw the automobile out of the corner of his eye “all the way up the street.” In summary, we think the conclusion inescapable that the evidence neither compelled an inference that plaintiff approached the course of defendant’s automobile from the south nor forbade an inference that he approached it from the north, and that any finding on this basic factual issue would have rested on nothing more than sheer speculation and shimmering surmise.

If plaintiff did approach from the south side of Vine, the evidence would not have required or supported a finding, in accordance with the assumption in his brief, that he (plaintiff) traveled thirty feet six inches, i. e., from the south edge of the south sidewalk on Vine to the center of the blacktop roadway, “within plain view of defendant.” This for the reason that, as counsel quickly conceded in oral argument, no inference properly could have been drawn as to the point at which plaintiff crossed the south sidewalk or parkway and at certain points the trunks of large trees would have hidden him or interfered with his discovery until he reached the south curb. Of course, as counsel hastened to point out, the south curb is 20 feet from the center of the blacktop roadway where plaintiff was lying after the accident and, if plaintiff had approached from the south, he would have been in plain sight while moving from the curb to the point of accident. However, if plaintiff had entered the roadway from the north at a point about even with that where he was lying after the accident, i. e., “slightly ahead” or west of Nelson’s parked pickup, he would have been visible to defendant while he (plaintiff) was moving a shorter distance not capable of precise ascertainment on the transcript before us.

In this connection, it should be emphasized that there was no evidence as to whether defendant’s automobile had been examined after the accident in an effort to determine what part .thereof had come in contact with plaintiff or, if such examination had been made, what it revealed. As a result of the accident, plaintiff suffered a “moderate to moderately severe concussion” resulting in hospitalization for sixteen days. But there was no fracture, the only marks on plaintiff were an abraded and bruised area on the left side of his head and a bruised area “on his left flank,” and there was no indication that defendant’s automobile had run over plaintiff.

The submitted assignment of negligence was that “defendant failed to keep a careful lookout.” To support their contention that a submissible case was made thereon, plaintiff’s counsel direct us to some of the Missouri cases stating certain familiar principles, to wit, that the continuous and inescapable duty to maintain a vigilant lookout ahead and laterally ahead rested upon defendant; that, to satisfy and discharge that duty, he was required to look in such observant manner as to enable him to see what one in the exercise of the highest degree of care for the safety of himself and others could and should have seen under similar circumstances; that such duty imposed the obligation (in the language of the brief) “to observe plaintiff beyond the traveled portion of the road,” excepting (as we add) insofar as defendant’s observation was obstructed; that, having been charged with the duty so to look, “he must be held to have seen what looking would have revealed” ; and that his failure to see that which was plainly visible would have constituted negligence [Schmidt v. Allen, Mo., 303 S.W.2d 652, 657(5); Anthony v. Morrow, Mo.App., 306 S.W.2d 581, 586], as much so as if he had not looked at all.

Assuming (without, however, so deciding) that the meager circumstantial evidence would have permitted an inference that, in the exercise of the highest degree of care, defendant could and should have seen plaintiff at some time and place prior to the accident, it might have been found that defendant was negligent in failing to maintain the required lookout. But that, in and of itself, would not have given rise to a cause of action, for there is a clear distinction between negligence “in its colloquial meaning,” i. e., the want of the required degree of care, and actionable negligence. Cameron v. Small, Mo., 182 S.W.2d 565, 568(5); Kenward v. Hultz, Mo.App., 371 S.W.2d 344, 349. “‘It is an elementary principle of the law of torts that there can be no actionable negligence in the absence of the existence of some duty on the defendant’s part owing to the plaintiff, which duty has been neglected or violated by the defendant, with the injury suffered by the plaintiff directly attributable thereto, and flowing therefrom.’ ” Otherwise stated, “[i]n order to impose liability there must not only be a lack of care, but such lack of care must involve a breach of some duty owed to another under the particular circumstances existing at the time of the act or omission complained of, which act or omission must have proximately resulted in such other person’s injury.” Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728, 734(8); Gutknecht v. Wagner Bros. Moving & Storage Co., Mo.App., 266 S.W.2d 19, 23. In this connection, see particularly Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 668(5).

Failure to keep a vigilant lookout, negligent though it may be, is not actionable and submissible in the absence of substantial evidence from which the triers of the facts reasonably may find that, in the exercise of the highest degree of care, defendant could and should have seen plaintiff in time thereafter to have taken effective precautionary action. Thus the court pointed out in Thomas v. Wade, Mo. (banc), 361 S.W.2d 671, 674, a suit for injuries sustained by plaintiff twenty-three months of age who ran from a sidewalk into the side of defendant’s moving automobile, a submission for negligent failure to keep a vigilant lookout, at least in a situation where the injured person was not directly in the path of the vehicle when the duty to see first arose, “actually submits failure to see and failure to avoid injury by ‘any means supported by the evidence.’ Moore v. Ready Mixed Concrete Co., supra [Mo., 329 S.W.2d 14, 25].”

This brings us to the question posed and answered in this fashion in Thomas v. Wade, supra, 361 S.W.2d at 674: “[W]hen does the duty to act arise? It is not necessarily at the exact time there was a duty to see. Under the facts of this case, if the duty to see and the duty to act arose at the precise time, then under plaintiff’s theory every motorist driving on a city street would have to slow, stop, warn, or slacken his speed every time he saw or should have seen a child or elderly person, or possibly any person, on the sidewalk even though not approaching the street or the path of the vehicle. While it may be stated in various ways the duty to act when one does or should see arises at the time that a person, in the exercise of the highest degree of care, knew or should have known that there was danger, that is, a likelihood of injury. See the discussion of this issue in Nydegger v. Mason, Mo., 315 S.W.2d 816, 819. In the case of a child, that danger or likelihood of injury might well be at the time the child turned toward the street, or possibly even before that time depending upon all the circumstances.”

It is true that motorists are charged with recognition that a child of tender years, “being engaged in play or other preoccupations on or near a roadway is almost entirely devoid of an appreciation of danger” [Ozbun v. Vance, Mo., 323 S.W.2d 771, 775-776] and that “ [thoughtless and impulsive acts of children are to be expected and guarded against.” Schmidt v. Allen, supra, 303 S.W.2d at 659. See Wood v. Claussen, Mo.App., 207 S.W.2d 802, 808(2); annotation 30 A.L.R.2d 5, 32-35, 75, 105, But obviously the precautionary and evasive action required of a motorist in any given situation must depend upon the circumstances with which he is confronted and must be “commensurate to the danger potential in such a situation.” Ozbun v. Vance, supra, 323 S.W.2d at 775. In the case at bar, there was no substantial evidence from which the triers of the facts fairly and reasonably could have found what situation confronted defendant as he approached the point of accident. For example, no inference could have been drawn and no finding could have been made, other than by forbidden resort to unbridled conjecture, rank surmise and palpable guesswork, (a) as to whether plaintiff approached the path of defendant’s automobile from the north or from the south, (b) as to where plaintiff was when he first could and should have been seen by defendant, (c) as to the relative positions of plaintiff and defendant’s automobile at that time, (d) as to what direction plaintiff then was looking, (e) as to whether plaintiff then was running, walking or standing still, (f) as to the course he thereafter followed to the point of accident, (g) as to whether he thereafter moved the entire distance to the point of accident (unknown and un-determinable upon the record) uninterruptedly and at the same rate of speed, (h) as to the precise location of the point of accident, or (i) as to whether defendant’s automobile ran into plaintiff or plaintiff ran into the automobile [Vietmeier v. Voss, Mo., 246 S.W.2d 785; Thomas v. Wade, Mo. (banc), 361 S.W.2d 671] and, if the latter, what part of the automobile he contacted.

In attempting to piece out plaintiff’s case, his counsel argue that, since defendant did not testify, plaintiff was “entitled to a presumption that . . . his [defendant’s] testimony would have been unfavorable and damaging.” The law on this subject is that, “where matters charged against a party are peculiarly within the knowledge of the party charged, the failure of such party to appear and testify at the trial carries with it an unfavorable and damaging presumption (Parish v. Casner [Mo.Sup.] 282 S.W. 392, 412), but this rule of law has no application to a case where the party upon whom the burden of proof rests fails to make out a case. No duty rests upon the party charged to speak until the other party has introduced evidence which, unexplained, makes a case against him.” Of course, the burden of proof as to each essential element of plaintiff’s case rested upon him [Vietmeier v. Voss, supra, 246 S.W.2d at 787(1)] and did not shift by reason of the fact that plaintiff was a boy four years of age while defendant was an adult. Vietmeier v. Voss, supra, 246 S.W.2d at 789(9) ; Harris v. Lane, Mo.App., 379 S.W.2d 635, 639(7), app. to transfer denied by Mo.Sup., No. 50942. With instant defendant standing- on his motion for a directed verdict at the close of plaintiff’s evidence, clearly plaintiff is not entitled to the aid of any presumption in this inquiry as to the submissibility of his case.

A “case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissibility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. Willey v. Fyrogas Company, 363 Mo. 406, 251 S.W.2d 635, 642; Brawley v. Esterly, Mo., 267 S.W.2d 655, 659; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323; 32 C.J.S. Evidence § 1042, p. 1116 [now 32A C.J.S. Evidence § 1042, p. 797], The question of whether the evidence in a given case is substantial is one of law for the court. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787-788; Tharp v. Monsees, Mo., 327 S.W.2d 889, 899.” Probst v. Seyer, Mo., 353 S.W.2d 798, 802(2, 3), 91 A.L.R.2d 1252; Gibson v. Newhouse, Mo., 402 S.W.2d 324, 327-328(6-9).

We find the conclusion inescapable that the lean circumstantial evidence in the instant case would not reasonably have permitted a finding by the jury upon the first essential element of plaintiff’s cause of action, i. e., “some duty on the defendant’s part owing to the plaintiff, which duty has been neglected or violated by the defendant” [see cases cited marginally in note 14] or, otherwise phrased, “a breach of some duty owed to [plaintiff] under the particular circumstances existing at the time of the act or omission complained of.” Kelley v. National Lead Co., supra, 240 Mo.App. at 59, 210 S.W.2d at 734.

The record compels (so we are convinced) the same conclusion with respect to submissibility of the essential element of “causation.” Biscoe v. Kowalski, Mo., 290 S.W.2d 133, 138(6); Schaefer v. Accardi, Mo., 315 S.W.2d 230, 233. As with the first element, plaintiff assumed the burden [Osterhaus v. Gladstone Hotel Corp., Mo., 344 S.W.2d 91, 94(4); Prosser on Torts (2nd Ed.), § 44, l.c. 222] of showing a causal connection between the negligence submitted and the injury sustained, such that the injury would not have happened but for the negligence. We recognize that, as plaintiff’s counsel emphasize, causal connection need not be established by direct and positive evidence but may be shown by proof of facts and circumstances from which such connection reasonably may be inferred. Cluck v. Snodgrass, Mo.App., 381 S.W.2d 544, 548(2); Leek v. Dillard, Mo.App., 304 S.W.2d 60, 65(10). On the other hand, if (as we are constrained to believe) the evidence left the element of causal connection in the nebulous twilight of speculation, conjecture and surmise, plaintiff did not carry his burden and.the judgment for him cannot stand.

Plaintiff leans heavily on our case of Hildreth v. Key, Mo.App., 341 S.W.2d 601, in which (1) there was testimony (a) that plaintiffs’ son “had ‘started home’ [from the east side of the street] to his grandmother’s residence on the west side” and, when last seen prior to the fatal occurrence, was “ ‘playing with his yo-yo’ and walking in a westerly direction toward the roadway” [341 S.W.2d at 607] and was then “ ‘in the middle’ of the walkway” over the shallow drainage ditch on the east side of the road, “five to eight feet from the point of accident and . . . within four or five seconds of the tragedy” [341 S.W.2d at 606] and (b) that “subsequent inspection of defendant’s [northbound] automobile revealed a dent in the right front fender just above and inside the right headlight” [341 S.W.2d at 604], and (2) all interested counsel agreed that the submissibility of plaintiffs’ case depended upon the above testimony establishing the boy’s direction of travel and placing him, in both distance and time, in close proximity to the accident. Hildreth v. Key, supra, does not support instant plaintiff’s contention of submissi-bility. Although no two situations are molded in precisely the same factual image, our case is much closer to Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, where it was held that plaintiffs did not make a submissible case on alleged primary negligence for failure to keep a vigilant lookout. Consult also Hartlage v. Halloran, Mo.App., 331 S.W.2d 197, 200(4), app. to transfer denied by Mo.Sup., No. 48168; Harris v. Lane, Mo.App., 379 S.W.2d 635; Joplin v. Franz, Mo.App., 240 S.W.2d 209. Without resifting the evidence, we reiterate our conclusion that instant plaintiff did not make a submissible case on the essential element of causal connection. See again Bowers v. Columbia Terminals Co., supra, 213 S.W.2d at 670 (6-10, 12).

Plaintiff’s counsel, known to us as diligent and dedicated practitioners, upon oral argument frankly conceded their inability to locate any eyewitness to the accident or to develop any material and relevant information in addition to that reflected in the transcript before us. Although defendant was not called as a witness, the nature and extent of his knowledge were probed and disclosed by that method of pretrial discovery selected by capable counsel, i. e., by numerous interrogatories and answers thereto (at least twenty-three in number), of which six were offered and received in evidence. V.A.M.R. Rule 56.01. No pleaded theory, on which plaintiff might make a submissible case with the witnesses and evidence available, is suggested or apparent. (See our recent discussion of this subject, per Titus, J., in Grissom v. Handley, Mo.App., 410 S.W.2d 681) In these circumstances, it becomes our plain duty to dispose of the case finally [V.A.M.R. Rule 83.13(c); V.A.M.S. § 512.160(3)], as has been done frequently in similar situations. Bowers v. Columbia Terminals Co., supra, 213 S.W.2d at 672; Hartlage v. Halloran, supra, 311 S.W.2d at 201; Harris v. Lane, supra, 379 S.W.2d at 639; Joplin v. Franz, supra, 240 S.W.2d at 211. See Williams v. Cavender, Mo., 378 S.W.2d 537, 544; Haire v. Stagner, Mo.App., 356 S.W.2d 305, 311(8), and cases there cited; Shofler v. Jordan, Mo.App., 284 S.W.2d 612, 616 (9, 10); Lowes v. Union Electric Co., Mo.App., 405 S.W.2d 506, 512.

The judgment for plaintiff is reversed.

HOGAN, and TITUS, JJ., concur.

      . For appropriate observations concerning the force and effect of estimates of this character, see Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, 498(7).

      . Burnett v. St. Louis Public Service Co., Mo., 337 S.W.2d 921, 923(1); Brooks v. Stewart, Mo., 335 S.W.2d 104, 105, 81 A.L.R.2d 508; Payne v. Smith, Mo., 322 S.W.2d 764, 767(1); Welch v. McNeely, Mo., 269 S.W.2d 871, 875(1); Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 93(1).

      . Evett v. Corbin, Mo., 305 S.W.2d 469, 471; Page v. Hamilton, Mo., 329 S.W.2d 758, 762(5); Herr v. Ruprecht, Mo., 331 S.W.2d 642, 647 (2); Begley v. Connor, Mo., 361 S.W.2d 836, 839(4); Weathers v. Falstaff Brewing Corp., Mo.App., 403 S.W.2d 663, 666(5); Stevens v. Waldman, Mo.App., 375 S.W.2d 633, 637(1).

      . Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 600(1); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80; Reames v. St. Louis-San Francisco Ry. Co., Mo.App., 359 S.W.2d 230, 235(2).

      . In Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788, our Supreme Court held that “[t]he jury could reasonably infer that even a five year old boy could run the short distance this plaintiff ran at a speed of ten miles per hour for a man will walk at from four to five miles per hour.”

      . The quoted distances are approximate, not precise as they would suggest. At five miles per hour, defendant’s automobile would have traveled 7.33 feet per second and, in the stated period of 6.9 to 10.5 seconds, between 50.58 and 76.97 feet.

      . Dimond v. Terminal R.R. Ass’n. of St. Louis, 346 Mo. 333, 353, 141 S.W.2d 789, 799(12); Cotton v. Voss Truck Lines, Inc., Mo.App., 392 S.W.24 428, 433(4); Haire v. Stagner, Mo.App., 356 S.W.2d 305, 310(6); Dugan v. Rippee, Mo.App., 278 S.W.2d 812, 816(7).

      . See Batson v. Ormsbee, Mo.App., 304 S.W.2d 680, 682; Hoffman v. Illinois Terminal R. Co., Mo.App., 274 S.W.2d 591, 593(1); Carrow v. Terminal R. Ass’n. of St. Louis, Mo.App., 267 S.W.2d 373, 379(8); Garrard v. State Dept. of Public Health & Welfare, Mo.App., 375 S.W.2d 582, 592(25).

      . Stradford v. Bluefeather, Mo., 384 S.W.2d 541, 543(3); Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 129 (4); Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 82(4); Weathers v. Falstaff Brewing Corp., supra note 3, 403 S.W.2d at 667 (6); Davis v. Hilton, Mo.App., 366 S.W.2d 501, 505(2).

      . Braun v. Hoffmeister, Mo., 366 S.W.2d 406, 408(3); Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114, 118(8); Immekus v. Quigg, Mo.App., 406 S.W.2d 298, 301(4); Leek v. Dillard, Mo.App., 304 S.W.2d 60, 67(15).

      . Williams v. Ricklemann, Mo., 292 S.W.2d 276, 281(6); Scaggs v. Uetrecht, Mo., 244 S.W.2d 17, 20; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 938(4); Lee v. Holland, Mo.App., 258 S.W.2d 30, 34 (5-7).

      . Smith v. Kansas City Public Service Co., 328 Mo. 979, 991, 43 S.W.2d 548, 553(7); Weis v. Melvin, Mo., 219 S.W.2d 310, 311(4); Frandeka v. St. Louis Public Service Co., Mo., 234 S.W.2d 540, 546 (5); Combellick v. Rooks, Mo. (banc), 401 S.W.2d 460, 463(2); Hinrichs v. Young, Mo., 403 S.W.2d 642, 645(2).

      . Burnett v. St. Louis Public Service Co., Mo., 337 S.W.2d 921, 926(11); Bracken v. Koch, Mo.App., 404 S.W.2d 201, 204; See v. Kelly, Mo.App., 363 S.W.2d 213, 216; James v. Berry, Mo.App., 301 S.W.2d 530, 533(6).

      . Reichholdt v. Union Electric Co., Mo., 329 S.W.2d 634, 637; Hiltner v. Kansas City, Mo., 293 S.W.2d 422, 427(7); Kenward v. Hultz, Mo.App., 371 S.W.2d 344, 349; Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302, 305(1); Lanham v. St. Louis Public Service Co., Mo.App., 360 S.W.2d 243, 245(3); Meyer v. St. Louis Public Service Co., 241 Mo.App. 1057, 253 S.W.2d 525, 528(3); Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356, 358(4); Vairo v. Vairo, Mo.App., 99 S.W.2d 113, 115(1). See Consumers Cooperative Ass’n. v. McMahan, Mo., 393 S.W.2d 552, 555(1); Atcheson v. Braniff International Airways, Mo., 327 S.W.2d 112, 117(8); Schaefer v. Accardi, Mo., 315 S.W.2d 230, 233(6); Biscoe v. Kowalski, Mo., 290 S.W.2d 133, 138(5); Wise v. Towse, Mo.App., 366 S.W.2d 506, 510; Gass v. Knittig, Mo.App., 396 S.W.2d 26, 28(2).

      . Zalle v. Underwood, Mo., 372 S.W.2d 98, 102(3); O’Neill v. Claypool, Mo., 341 S.W.2d 129, 135(11); Immekus v. Quigg, supra note 10, 406 S.W.2d at 301. See Nydegger v. Mason, Mo., 315 S.W.2d 816, 819; Bischoff v. Dodson, Mo.App., 405 S.W.2d 514, 518.

      . Bahl v. Miles, 222 Mo.App. 984, 6 S.W.2d 661, 664(8, 9); Shidloski v. New York, C. & St. L. R. Co., 333 Mo. 1134, 64 S.W.2d 259, 264(4, 5); Rissell v. St. Louis-San Francisco Ry. Co., 336 Mo. 845, 81 S.W.2d 621, 623(4). See Tilton v. Woods, Mo., 371 S.W.2d 291, 297(3); Talley v. Richart, 353 Mo. 912, 185 S.W.2d 23, 27 (9, 11) ; Russell v. Franks, 343 Mo. 159, 120 S.W.2d 37, 40(3); Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 460, 466 (8, 9); Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 500(18); 2 Wigmore on Evidence (3rd Ed.), § 290, 1. c. 179; 31A C.J.S. Evidence § 156(1), 1. c. 396; Id., § 156(4), 1. c. 424.

      . Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 246(2); Donnelly v. Goforth, Mo., 284 S.W.2d 462, 466(9, 10); Springer v. Security Nat. Bank Savings & Trust Co., Mo., 175 S.W.2d 797, 800 (5, 7); Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 876(2); State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869, 871.

      . Gibson v. Newhouse, Mo., 402 S.W.2d 324, 328-329; James v. Sunshine Biscuits, Inc., Mo., 402 S.W.2d 364, 375(2); Osborn v. McBride, Mo., 400 S.W.2d 185, 188(3); Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824, 829; Schabbing v. Seabaugh, Mo.App., 395 S.W.2d 256, 259(7), 260(9); Bauman v. Conrad, Mo.App., 342 S.W.2d 284, 288-289(7); Blythe v. United Rys. Co. of St. Louis, Mo.App., 211 S.W. 695, 697(3).


author: PER CURIAM.

text:
    Mary E. KESTNER, Plaintiff-Respondent, and Bailey Kestner, Plaintiff, v. Lucy Shepard JAKOBE, Defendant-Appellant.
    No. 8545.
    Springfield Court of Appeals. Missouri.
    Feb. 7, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 24, 1967.

      Albert C. Lowes, Buerkle & Lowes, Jackson, for defendant-appellant.
    C. H. Parsons, Jr., Dexter, for plaintiff-respondent.
   PER CURIAM.

This is an action for personal injuries sustained by plaintiff Mary Kestner when the automobile in which she was riding collided with another being driven by defendant Lucy Jakobe. Initially, the plaintiffs joined Mrs. Jakobe and Mr. John Litz-ler, the host driver, as codefendants. Prior to trial, the cause was dismissed as to defendant Litzler, and the jury found against plaintiff Bailey Kestner on his claim for medical expenses and loss of services. Plaintiff Mary Kestner had a verdict and judgment against Mrs. Jakobe in the amount of $3,449.00, and this appeal followed.

On the occasion in question, Mrs. Kestner and her husband were riding in Mr. Litzler’s automobile, traveling south on Highway 25 near Malden, Missouri. The casualty occurred when Mrs. Jakobe, going north, attempted to turn left in front of the Litzler vehicle in order to enter a private driveway on the west side of the road. Very concisely, plaintiffs’ version of the accident was that Mrs. Jakobe turned suddenly in front of Mr. Litzler when the two vehicles were no more than 40 feet apart, while defendant’s version was that she began her turn while the oncoming Litzler vehicle was still “half a block” to the north, having first given an adequate, visible warning of her intention to turn some 100 to 150 feet south of the intersection of the driveway and the highway. The plaintiffs submitted their case on Mrs. Jakobe’s negligence in failing to yield the right of way to an approaching vehicle at a time when turning left would create an immediate hazard. As we say, the jury resolved the issues for plaintiff Mary Kestner.

The appellant has meticulously briefed and argued eight assignments of error. Some of these points, quite frankly, are overstated and hypertechnical, while others appear to have some intrinsic merit. Appellant’s principal argument in this court has to do with a release which the plaintiffs gave Mr. Litzler a short time after the accident; she insists that the release is a complete bar to this action. We shall limit our opinion to a determination of those questions essential to a proper disposition of the appeal in this court. Logsdon v. Duncan, Mo., 293 S.W.2d 944, 946 [1]; Fidelity and Casualty Co. of N. Y. v. Glass, Mo.App., 327 S.W.2d 538, 540 [1].

Five days after the accident, the plaintiffs executed a document, styled a “Release of all Claims,” in the following form:

“Know all men: For and in consideration of the payment to me/us at this time of the sum of Fifty dollars and no/100 Dollars ($50.00), the receipt and sufficiency of which is hereby acknowledged, I/we, being of lawful age, do hereby, separately and jointly, release, acquit and forever discharge Mr. John Litzler of and from any and all actions, causes of action, claims, demands, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting from an accident that occurred on or about the 13th day of February 1965 at or near Malden, Missouri.
I/we hereby declare and represent that I/we was/were injured and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I/we have not been influenced to any extent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed.
It is mutually understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the .part of the person, firm or corporation released, by whom liability is expressly denied.
This release contains the ENTIRE AGREEMENT between the parties hereto and the terms of this release are contractual and not a mere recital.
I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our free act for the purpose of making full and final compromise, adjustment and settlement of the injuries and damages mentioned above.
WITNESS my/our hand and seal this 18th day of February 1965.
In presence of
/s/ Jim Grimes X /s/ Mary Kestner Age 52
/s/ Bailey Kestner Age 74”

As indicated, the plaintiffs originally joined both Mr. Litzler and Mrs. Jakobe as defendants, and each defendant, answering separately, set up the release in bar of the action. By separate reply to each answer, the plaintiffs admitted execution of the release, but alleged that it was invalid because it was procured by fraudulent representation. In a series of pre-trial motions, the defendants called the trial court’s attention to the release, praying alternatively that trial of the issues of liability be stayed pending a determination of the validity of the release, or that the action be dismissed. The trial court refused all these motions, and plaintiffs dismissed their case as to Mr. Litzler before the trial began.

Upon trial, very little was shown in evidence concerning the release. We gather that it was executed at plaintiffs’ home on Thursday following the accident, which occurred on Saturday; that it was procured by a claims representative for some insurance carrier on Mr. Litzler’s behalf; that some time after the release was executed Mr. Litzler’s carrier paid the plaintiffs an additional sum, and that possibly a subsequent written instrument was executed. Plaintiffs’ testimony indicates that they are only semi-literate, each having “got in the third grade,” but nothing of the circumstances attending execution of the release appears, other than that plaintiffs did sign the release and did receive the $50.00, plus an additional $399.00, all of which was paid on Litzler’s behalf. No evidence was presented which actually tends to develop any grounds for avoiding the release. However, during the course of the trial, the following exchange of remarks occurred after counsel had finished his interrogation of plaintiff Bailey Kestner:

“MR. LOWES: Judge, I have no other questions of this witness, I just want to make sure I have the record right on the question of this release. Now, we had intended to tender an instruction on whether or not the jury would find that this release covered our man, and I’ve had a conversation outside of the trial with the Court and the Court has indicated it feels that the release is already in here by admission and it’s a question of law, and you have ruled it’s a question of law and that the release does not cover Mrs. Jakobe. Now, do I understand the Court right?
THE COURT: I think you do.
MR. LOWES: All right. So then it won’t be necessary — that’s been the basis of the Court’s ruling when I mention the subject of release?
THE COURT: Yes, sir. A release as such has no part in this suit, that is the Court’s ruling.” (Our emphasis.)

The question presented is whether, assuming its validity, the release given to Mr. Litzler also operated to discharge Mrs. Jakobe. Upon the record developed and filed here, we think it did. A claimant may settle with one joint tort-feasor and release him, and still hold and sue the others for the balance of his damages, but the claimant may have but one satisfaction, and if the release is in full of all damages, as distinguished from a release of one codefendant or joint tort-feasor, then the cause of action is dead and cannot be revived. New Amsterdam Casualty Co. v. O’Brien, Mo., 330 S.W.2d 859, 864-865; Booker v. Kansas City Gas Co., 231 Mo.App. 214, 219, 96 S.W.2d 919, 923 [2,3]. Granted that the application of this rule may produce varying results in varying factual situations, New Amsterdam Casualty Co. v. O’Brien, supra, 330 S.W.2d at 865 [3], there are no extrinsic facts in evidence here, nor any language in the release itself, which indicates that the plaintiffs claimed or demanded anything less than full satisfaction. The instrument recites in repetitious but positive terms that the money was received in consideration of the release and discharge of all claims and demands, without any limitation or reservation whatever, and further recites that it was executed to effect a full and final compromise. In our view, the release must be taken as a release of the whole cause of action. New Amsterdam Casualty Co. v. O’Brien, supra, 330 S.W.2d at 865-866 [4]; Abbott v. City of Senath, Mo., 243 S.W. 641, 642-643 [3], Contrary to respondent’s position, it is not determinative that the release was given to Litzler only, for he was liable, if at all, for the whole of plaintiffs’ damages. Abbott v. City of Senath, supra, 243 S.W. at 643.

On the other hand, if the release was obtained by fraudulent representation, it is either void or voidable, depending on the nature of the fraud. Nelson v. Browning, Mo., 391 S.W.2d 873, 877 [2] [3] ; Watson v. Bugg, 365 Mo. 191, 195, 280 S.W.2d 67, 69 [1], 53 A.L.R.2d 743, 746. Plaintiffs had the burden of proving the release invalid, since they admitted its execution, Foster v. Aetna Life Ins. Co. of Hartford, Conn., 352 Mo. 166, 174, 176 S.W.2d 482, 485 [4, 5], but they were entitled to have its fraudulent or wrongful procurance submitted to the jury along with all other issues in the case, with a general verdict on all issues. Watson v. Bugg, supra, 365 Mo. at 196, 280 S.W.2d at 69-70 [3], 53 A.L.R. 2d at 747. The trial court, by its ruling that the release did not affect Mrs. Jakobe, rendered it apparently unnecessary for plaintiffs to develop their tendered issue of fraudulent procurance, indicating that it would not hear such proof if it were presented. Consequently, we have a record before us which does not present all the relevant facts, and we can make no final adjudication. We may further note that the record indicates an agreement subsequent to the release in question, upon the payment of an additional consideration by Litzler or on his behalf. This subsequent agreement is not in evidence, and we will not speculate upon its nature or effect on the rights of the parties, but of course an agreement of compromise can be modified or rescinded by the parties like any other contract, United States v. Dake, D.C.N.Y., 42 F.Supp. 833, 838 [7]; 15A C.J.S. Compromise and Settlement § 29, pp. 242-243, and for this further reason, we cannot confidently say the parties’ rights became immutably fixed upon execution of the release in evidence. The trial court, by its erroneous view of the law, prevented the merits of the case from being fully developed, and as to plaintiff Mary Kestner we believe the cause must be reversed and remanded for a new trial. Woodlock v. Aetna Life Ins. Co., Mo., 225 S.W. 994, 1002 [4]; Robinson v. Unit Iron Co., Mo.App., 31 S.W.2d 232, 233-234 [2]; 5B C.J.S. Appeal and Error § 1940, pp. 482-486. Plaintiff Bailey Kestner, on the other hand, was actually asserting a separate, distinct cause of action. Rea v. Feeback, Mo., 244 S.W.2d 1017, 1019 [2], He has not appealed from the verdict adverse to him. Therefore, following retrial of the cause as to plaintiff Mary Kestner and because there can be but one judgment in the action, the trial court will enter a judgment compatible with the verdict returned on the retrial issues and one determining the cause in favor of the defendant and against the plaintiff Bailey Kestner.

All concur.


author: PALMORE, Judge.

text:
    Walter DAVIDSON and James K. Simpson, Appellants, v. Ursula DAVIDSON, Appellee.
    Court of Appeals of Kentucky.
    June 17, 1966.
    Rehearing Denied March 31, 1967.
    Alva A. Hollon, Richard D. Cooper, Reeves, Barret & Cooper, Hazard, J. Robert Morgan, Hindman, for appellants.
    Cordell H. Martin, Hindman, Rudy Yes-sin, Frankfort, for appellee.
   PALMORE, Judge.

The appellee, Ursula Davidson, brought this action against her brother, the appellant Walter Davidson, seeking damages for personal injuries sustained by her in a collision between an automobile driven by Walter, in which she was a passenger, and an automobile driven by the appellant James K. Simpson. By third party complaint Walter Davidson asserted a claim for contribution against Simpson. Simpson and Walter Davidson appeal from a judgment entered pursuant to a jury verdict awarding Ursula $10,000 against Walter and “permitting Walter Davidson to collect $5,000.00 of same from James K. Simpson.”

The single question is whether the evidence was sufficient to support a verdict in favor of Ursula Davidson against Walter Davidson. If not, the award of contribution falls also. Ursula Davidson did not sue Simpson.

Early in the afternoon of April 4, 1962, the Davidsons were driving westward on U. S. Highway 421 toward Frankfort from Lexington. It was a clear, dry day. As they approached the point where U. S. 62 intersects U. S. 421 from the south, just north of the town of Midway in Wood-ford County, they observed Simpson’s car stopped on the intersecting road to their left. Expecting it to remain so until he had passed, Walter Davidson continued ahead, but when he had reached a point “two or three car lengths” from the intersection the Simpson car pulled across in front of him and the Davidson car struck the right side of the Simpson car “just behind the lock on the front door.” Davidson said he blew his horn and applied his brakes immediately before the collision.

Across U. S. 421 and several feet east of the point where U. S. 62 enters from the south Kentucky Highway 341 enters from the north (U. S. 62 continues eastward along U. S. 421 for several miles and then turns off to the north toward Georgetown). Thus the junction of these three highways forms an irregular crossroads. A yellow caution light overhangs the intersection, but U. S. 421 has precedence, and there was a stop sign for traffic approaching it on U. S. 62. Simpson was coming from Midway and intended to visit a restaurant located on the other or north side of the intersection. He said he looked to his left toward Frankfort and saw two,cars approaching about a mile away, looked to his right toward Lexington and did not see any oncoming traffic, and then proceeded to cross. He did not see the Davidson vehicle until it hit him. He heard Davidson’s horn at about the same moment.

Walter Davidson testified that he saw the Simpson car sitting at the intersection from- a distance of 200 or 300 feet but did not slow down because he assumed it would stay there. Ursula testified that when the Davidson vehicle was “quite a distance” from the intersection she “saw this car sitting off the blacktop to my left, and this car suddenly pulled across the road in front of us and we collided with it.”

Both U. S. 421 and U. S. 62 were blacktop roads two lanes in width. According to Simpson’s own testimony the intersection was at least 40 feet wide and he had a clear view of U. S. 421 for a distance of 200 to 300 feet to the east, the direction from which the Davidson car was approaching. His theory is that since he looked but did not see the Davidson car it must have been traveling at such a speed as to cover this 200 or 300 feet while he, at a speed of about IS m. p. h., was moving some 20 feet to the point of impact. Walter Davidson estimated his speed at 45 to 55 m. p. h., and Ursula estimated it as 35 or 40 m. p. h.

Though it was not proved in any other manner, Simpson testified that the posted speed limit on U. S. 421 at the place of the accident was 35 m. p. h. Ursula Davidson contends that the verdict finding Walter Davidson negligent was justified on the basis of excessive speed.

In order for the Davidson car to have covered 200 or 300 feet while Simpson was moving 20 feet into the intersection it would have had to be traveling at a speed of 150 m. p. h. or more. The plaintiff Ursula Davidson’s own testimony was, in effect, an admission that this was not so in fact and that the two vehicles were in full view of each other when the Simpson car started forward. Even without her testimony we do not think it could be reasonably maintained or found by a jury that the approaching Davidson car was not visible to Simpson before he entered the intersection. The evidence that Davidson was within two or three car lengths of the intersection when he did so was not contradicted. Under such circumstances Davidson’s speed was not a proximate cause of the collision. Chambliss v. Lewis, Ky., 382 S.W.2d 207 (1964).

The facts of this case are almost exactly analogous to those in Vaughn v. Jones, Ky., 257 S.W.2d 583 (1953). Though the opinion in that case says Jones did not claim Vaughn was traveling at an unreasonable or unlawful speed, he could have done so with about as much force as Simpson does in this instance. The differences between the two cases are superficial, and indeed no effort has been made to distinguish them. It is our opinion that as a matter of law Davidson’s speed, whatever it was, was not a proximate causal factor and that Simpson’s negligence was the sole cause of the accident. See also Riggs v. Miller, Ky., 396 S.W.2d 69 (1965).

The cause is reversed with directions to enter judgment n. o. v. dismissing the complaint and third party complaint.


author: STEINFELD, Judge.

text:
    Charles GATES, Appellant, v. Margie GATES, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.
    Rehearing Denied March 31, 1967.
    Damon A. Vaughn, Madisonville, for appellant.
    Carroll Morrow, Madisonville, for ap-pellee.
   STEINFELD, Judge.

Margie Gates and Charles Gates were married to each other on the 18th day of May, 1948. Born of this marriage were four children; three boys and one girl. Margie and Charles separated in May 1964, and in July 1964, Margie sued Charles for a divorce. The complaint alleged cruel and inhuman treatment but no answer was filed. The parties agreed that Margie should have the permanent care, custody and control' of the oldest boy, age fifteen; the youngest boy, age ten; and the daughter, age six; that Charles should have the second son, who was fourteen. The agreement made provision for visitation rights, for support and a division of property. A judgment was entered on the 30th day of November, 1964, awarding Margie an absolute divorce and making the agreement a part of the judgment. Later, and without any order of court, Charles sent to Margie the son who had been awarded to him and Margie assumed his care and custody.

Charles has remarried, but Margie has not, although the testimony indicates that her remarriage is a probability.

On the 18th day of August, 1966, in the divorce action, Charles moved that the custody of the three youngest children be changed and that they be awarded to him. Before this motion was made the oldest son had married and after the motion was made the sixteen year old son married. The custody of these two is not in litigation.

Many witnesses testified before the trial court. Some praised Margie, stated that she was an exemplary mother, and is the proper person to have the custody of the children. Others were critical of her conduct and testified that she is unfit to have the children. The same type of evidence was introduced showing that Charles is the proper person to have the children with him, although others stated just the contrary. After an extensive hearing the trial court ordered that the motion for a change of custody be overruled and that the action should “remain on the active docket for one (1) year for further orders of the court * * *

Charles has appealed. He claims that it would be to the best interest of these two children for their custody to be taken from Margie and that they should be awarded to him. Margie contends that the decision of the trial court is correct; that the order appealed from is not a final order and that this appeal should be dismissed.

We will first dispose of the contention of Margie that the order is not final and is not appealable. The question of the custody of these children is a continuing matter to be considered whenever it is properly brought before the court. Cole v. Cole, 299 Ky. 319, 185 S.W.2d 382. While such an order is not final in the sense that it cannot be changed by the trial court it is an appealable order and this Court may review it. KRS 21.060. Duncan v. Burnett, 292 Ky. 269, 166 S.W.2d 419; Witt v. Witt, Ky., 307 S.W.2d 1.

With respect to the second contention that the trial court found incorrectly, the law is clear in this jurisdiction that the appellate court will not substitute its judgment for that of the trial court unless a manifest abuse of discretion occurred. In Somerville v. Somerville, Ky., 306 S.W.2d 301 we stated: “When the evidence is conflicting, much weight is given to the Chancellor’s decision, and after weighing the evidence, the judgment will be reversed only when we are convinced that he was in error.” The trial court heard and saw the witnesses and is in a better position to evaluate the testimony than is this Court. McCormick v. Lewis, Ky., 328 S.W.2d 415. Upon an examination of the record “we are not convinced that he was in error”, and we are not convinced that he abused his discretion. Newby v. Newby, Ky., 275 S.W.2d 779. As always, the welfare of the children is paramount. Brengle v. Hurst, Ky., 408 S.W.2d 418. Not being convinced that the trial court was in error we cannot and will not substitute our decision for the judgment of the trial court when the evidence is as conflicting as is indicated by the record in this case. Renfro v. Renfro, Ky., 291 S.W.2d 46.

It is obvious that the trial court will be informed in the event there are actions or circumstances which appear not to be in the best interest of the children, whereupon it has the power to exercise appropriate control. Harp v. Harp, 314 Ky. 618, 236 S.W.2d 698.

For the reasons indicated herein, the order denying a change of custody entered on the 27th day of September, 1966, is affirmed.


author: OSBORNE, Judge.

text:
    WHITESBURG MUNICIPAL HOUSING COMMISSION, URBAN RENEWAL SECTION, Appellant, v. Ralph B. BATES, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Ronald G. Polly, Combs & Polly, Whites-burg, for appellant.
    John N. Cornett, Whitesburg, John Smith, Hindman, Bert T. Combs, Julius Rather, Lexington, for appellee.
   OSBORNE, Judge.

The Letcher Circuit Court had entered a judgment awarding appellee $34,500 in a condemnation action. The taking consisted of a triangular lot and building at 124 West Main Street in Whitesburg, Kentucky. The lot contained approximately 7089 square feet. It fronts on Kentucky Route 15 for 138 feet; on Gibson Street for 102 feet; and on Highway 588 for 140 feet. The 15 year old building contained approximately 1176 square feet of usable floor space on two floors and in a basement. The first floor was used as a restaurant. The second was a five-room apartment with a bath.

The appellant offered four evaluation witnesses whose estimates ranged from $17,500 to $22,500. The appellee offered six evaluation witnesses whose estimates ranged from $35,000 to $40,000.

Appellant’s contentions are: (1) It was prejudicial error to strike the testimony of witness, Morris L. Mullins, for the appellant; (2) the trial judge erred in refusing to strike the testimony of witnesses, Ivan Childers and W. R. Smith, on the ground that they were not acquainted with the market values of the property in Whites-burg, Kentucky; and (3) the verdict is so palpably excessive as to be unreasonable and shows that the jury acted as the result of passion, partiality, and prejudice.

Witness Mullins testified that his knowledge of real estate values around Whites-burg was the result of the purchase of a residence and the purchase of property for his employer. Upon cross-examination, he admitted that he had not talked to other people in the community about the selling price of property. Also, he admitted that he was not acquainted with the fair market value of property in general. The court then struck the testimony of Mullins and admonished the jury.

The only basis for Mullins’ expressing an opinion as to the market value was the witness’ personal knowledge of two sales. He readily admitted that he did not know the general market conditions in the area. It is our opinion that the trial court properly excluded the evidence. Napier v. Commonwealth, Dept. of Highways, Ky., 397 S.W.2d 45. In any event the evidence of Mullins was cumulative and, therefore, its exclusion would not be considered prejudicial. Cr 61.01.

Witnesses, Childers and Smith, were licensed real estate brokers. The witnesses had conducted auctions in the Letcher County area. They testified that both had a knowledge of the fair market value of property in Letcher County. In 32 C.J.S. Evidence § 546(119), p. 457, it states:

“A witness, to be qualified to testify as to the value of realty, must know the property to be valued and the value of the property in the vicinity, must understand the standard of value, and must be possessed of the ability to make a reasonable inference.”

This rule has been adopted in this jurisdiction. Commonwealth, Dept. of Highways v. Taylor, Ky., 368 S.W.2d 732 and Commonwealth, of Ky., Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851.

We cannot accept appellant’s contention that Childers and Smith were not qualified to express an opinion as to the value of the property. Their qualifications as realtors and auctioneers in the community were sufficient to make the testimony admissible.

The verdict is within the range of the value figures presented both by appellant and appellee. A verdict will not be disturbed as excessive, unless it is given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. Cr 59.01. Commonwealth of Ky., Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922; Salt River Rural Co-op. Corp. v. Thurman, Ky., 275 S.W.2d 780; Commonwealth, Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714; Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W. 472, and authorities there cited.

We do not find in this case that the verdict is excessive or is the result of bias, prejudice, or based on facts not supported by the evidence.

The judgment is affirmed.

All concur.


text:
    Charles HATTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.
    H. M. Shumate, Shumate, Shumate & Flaherty, Irvine, for appellant.
    Robert Matthews, Atty. Gen., Lacey T. Smith, Asst. Atty. Gen., Frankfort, J. D. Graham, Campton, for appellee.
   STEINFELD, Judge.

Charles Hatton was found guilty of manslaughter and his punishment was fixed at five years in the state penitentiary. He moved to set the verdict and judgment aside which motion was overruled and he has made timely appeal to this Court.

There is little dispute concerning the facts. Charles is 44 years old, his right leg has been amputated above the knee and he uses an artificial leg. He has had recurrent stomach problems including bleeding from the stomach and he has moderately advanced tuberculosis.

About 12:30 P.M. on July 11, 1966, Charles Hatton, Billy Hatton and Elvin Logan started out in an automobile. Billy was driving and all, or at least a number of these men, had been and continued drinking very heavily. Billy was 30 years of age, very strong and robust; was 6' 2" tall and weighed 185 pounds. They made various stops and no trouble was observed. About 3:00 P.M. the automobile passed in front of the residence of Little Hatton who was sitting on his front porch. At this time Billy was driving, Charles was sitting upright in the front seat with him and Elvin was sitting upright in the back seat. When the car was about 275 yards beyond the place where Little was, it came to a sudden stop, making a noise as if the bottom of the car was dragging. Shortly thereafter Charles came down the road on foot and asked Little to get a doctor for Billy. Charles said to Little that he hoped he had not killed Billy.

Charles claims that Billy became violent at the time the car stopped, began beating him and threatened to kill him. Charles stated that he stuck Billy with a knife, although he claims he did not intend to do more than stick him and that the knife was displayed only for the purpose of discouraging Billy from further assaulting him. Elvin testified that the two seemed to be friendly when he laid down but he was “knocked out” and knew nothing of the killing. He was found on the floor of the back seat of the car where he apparently was thrown as the car stopped. He awakened in jail. It is apparent that his testimony is not significant because of his physical condition at that time. Billy was cut in the neck and bled to death. No one else except Charles testified to what occurred at the time of the alleged assault by Billy and the use of the knife by Charles.

The first ground that Charles urges in an effort to obtain a reversal of the judgment is that the trial court erred in permitting the introduction of incompetent evidence which was highly prejudicial. Charles testified in his own behalf. He was asked on cross-examination whether he had ever cut Billy before. Objection was made to this question which objection was overruled. The questions and answers and the trial court’s ruling were as follows:

“Q. Did you ever cut him before with a knife ?
A. I nicked him on the leg with a knife.
Q. Didn’t you cut him on the chest with a knife before this?
A. No, sir.
Q. You didn’t?
A. No.
COURT: This will go only to affect the credibility of the witness, ladies and gentlemen of the jury.
Q. Didn’t you cut his shirt off of him trying to cut him in the chest one time?
A. No, sir, he come down to the house with me one time and some of them said, ‘What happened to your shirt, Billy?’ and he said, ‘Charlie there cut it off of me.’ and I said, T haven’t been with you.’ and he just laughed.
Q. The shirt was cut off of him?
A. No, sir, it had a little place in it.”

Charles contends that under the rules announced in Jackson v. Commonwealth, Ky., 323 S.W.2d 874 and Fleenor v. Commonwealth, 255 Ky. 526, 75 S.W.2d 1, the above quoted testimony should not have been admitted because of the failure of the Commonwealth to show that the previous occurrence was not remote in time. Charles argues that in Jackson and Fleenor this Court held that prior quarrels which occurred respectively four hours ahead of the alleged crime charged and two years before were not admissible in evidence. The Commonwealth argues that testimony showing the previous acts is competent since it was offered to show motive or intent. The Commonwealth relies on Louisville & N R Co. v. Berry, 9 Ky.Law Rep. 683 and Whitfield v. Commonwealth, 265 Ky. 640, 97 S.W.2d 565.

The Commonwealth contends further that this Court has been liberal in permitting the introduction of testimony showing “prior bad feeling”. It argues that the time of the previous cutting is immaterial; that time affects the weight of the evidence and not its admissibility. The Jackson case is not applicable for it merely held that it was proper to exclude testimony of what the deceased had told the witness about an incident which occurred several hours before the first altercation between the accused and the deceased. The Fleenor case approved the admission in evidence of an occurrence two years before the killing, and held that this evidence was not too remote in time for the reason that “there was evidence that bad feelings had existed between the men since that date.” It also held that it was proper to reveal such previous conduct “for the purpose of showing who commenced the difficulty which resulted in the homicide.” Hilger v. Commonwealth, 254 Ky. 117, 71 S.W.2d 9. We do not have to consider the contention that this testimony was not admissible for Charles’ counsel had the opportunity to interrogate the witness as to when this previous incident occurred, but failed to do so. He cannot now complain that the time was not shown.

To refute appellant’s contention that the admonition was improper appellee relies upon Warner v. Commonwealth, 27 Ky.Law Rep. 219, 84 S.W. 742 and points out that no admonition was needed, but since one was given it was in a form not prejudicial to appellant but on the contrary beneficial to him. We agree. Whitfield v. Commonwealth, supra.

The next question is whether or not Charles was entitled to a directed verdict at the conclusion of all of the evidence. He claims that on the day Billy was killed no prior trouble was observed by anyone; that the uncontradicted testimony shows that Billy “slammed the car to a stop” and said that he would beat Charles to death and that thereafter he began to assault him. Elvin, the only other person present when the fight occurred was on the floor and while he testified that he saw part of the beating he did not see the killing. We repeat that Elvin was so intoxicated or in shock that his testimony can be given no credence. Charles points out that immediately after the incident he sought a doctor and he expressed the hope that he had not killed Billy.

Charles insists further that the Commonwealth offered no competent evidence to show that the homicide was not committed in self-defense. He admits that the homicide was established but claims that the un-contradicted evidence shows that he was under attack and in fear of his life. He cites Taul v. Commonwealth, Ky., 249 S.W.2d 45 and Holcomb v. Commonwealth, Ky., 280 S.W.2d 499 as authority for the contention that he was entitled to a directed verdict at the conclusion of the evidence. He also relies on Cowan v. Commonwealth, Ky., 407 S.W.2d 695 to support his position.

In the Taul case the proof showed that there had never been any previous trouble between Taul and Armes, the . deceased. We announced the law to be that “Where the defendant is shown to have committed the act of killing, and he pleads self-defense, it is incumbent upon him to establish justification unless the evidence, presented by the prosecution, shows a state of facts justifying the act.” Charles is shown to have committed the act of killing and he pleads self-defense. It was incumbent upon him to establish justification since the evidence of the Commonwealth did not show facts establishing justification. Harvey v. Commonwealth, Ky., 318 S.W.2d 868; Ewing v. Commonwealth, Ky., 390 S.W.2d 651.

The Holcomb case holds that when the defendant admits a killing (which Charles admitted) and relies upon self-defense (as Charles does here), if there is no evidence contradictory of defendant’s it is the duty of the trial court to direct the acquittal of the defendant. We must now determine whether or not the evidence presented an issue of fact.

The Commonwealth points out that Elvin testified that before he went to sleep he took a drink and he didn’t know whether or not Charles and Billy took a drink. His words were “I believe they slacked up. I believe they took a drink too.” The questions and answers following this testimony were as follows:

“Q. Then they were trying to fight and they stopped to take a drink?
A. Not all at the same time.
Q. They were friendly at the time you laid back down there?
A. Seemed to be.
Q. Then when you woke up Billy was killed?
A. When I woke up I was in jail over here.”

Certainly this testimony, if it can be considered, neither corroborates Charles nor aids the Commonwealth. The evidence clearly shows that Elvin was in such a stupor at that time that he did not know what was going on.

While there was some evidence to show that Charles had been in a fight, it alone did not indicate whether or not Charles was acting in self-defense in using his knife. The injuries could just as well have been sustained when Billy was resisting Charles’ efforts, if any there were to stab or cut him, or have resulted from a beating which Billy was administering to Charles.

The Commonwealth counters by claiming that there was sufficient evidence for the case to go to the jury. It urges that the testimony of Elvin shows that when he last observed Charles and Billy they were on friendly terms and that they were drinking together. There was also conflicting testimony as to whether or not there were bruises on Charles’ body showing he had been beaten. The Commonwealth relies upon Richie v. Commonwealth, Ky., 242 S.W.2d 1000 and Lee v. Commonwealth, Ky., 329 S.W.2d 57 in support of its argument. In Richie we said: (242 S.W.2d 1000, p. 1004)

“* * * We have many cases holding that though the defendant, who was the sole immediate eyewitness, testifies to a prima facie case of self-defense, yet if there is any evidence tending to disprove his testimony, the issue should be submitted to the jury. The circumstances of the case, or the credibility of the witness, or the inherent improbability of his testimony, may refute the claim that he killed the person in defense of his life, or to save himself from serious bodily harm.”

We believe that there was evidence tending to disprove Charles’ claim of self-defense. Hence, there was an issue to be resolved by the jury.

The third assertion of Charles is that the verdict is flagrantly against the weight of the evidence because, he says, there was no evidence of probative value that this homicide was not committed in the exercise of appellant’s right of self-defense. To the contrary, the Commonwealth argues that Richie v. Commonwealth, supra, and Lee v. Commonwealth, supra, are authorities for the proposition that the circumstances and probabilities presented in this instance were sufficient to have authorized the trial court to send the case to the jury and to sustain the verdict rendered. We find ample evidence to support the verdict.

The fourth and last argument of Charles is that the trial court’s instructions failed to give to the jury the whole law of the case, or the proper law of the case. Instruction number 1 followed the form in Kentucky Instructions to Juries, Stanley Volume 3, page 146 section 868(1). Instruction number 2 furnished the jury with the definitions which this Court has approved. Instruction number 3 properly presented to the jury Charles’ contention that he acted in self-defense. It substantially followed Stanley’s form number 891. The jury was also told that if it had reasonable doubt as to whether or not the defendant had been proved guilty he should be found to be not guilty. We find no merit whatsoever in the argument that the instructions were erroneous.

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. J. Wickliffe MUIR et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Louis J. Amato, Catlett & Amato, Frankfort, Tildón H. McMasters, Elizabethtown, for appellant.
    John S. Kelley, E. E. Hubbard, Bards-town, for appellees.
   WADDILL, Commissioner.

This action was instituted by the Commonwealth of Kentucky, Department of Highways, to condemn 18¾ acres of appel-lees’ property for the purpose of constructing part of the Bluegrass Parkway, a limited access highway, and also to acquire a temporary easement upon 1.59 acres. No house or other improvement was sought to be condemned.

Upon a trial the jury found that the value of appellees’ property before the taking was $68,333 and its value thereafter was $50,000 and the value of the use of the easement was $400. A judgment of $18,733 was entered in favor of appellees. From this judgment the Commonwealth has appealed, contending that the verdict is excessive and is not supported by evidence having probative value.

Prior to the filing of this action, the appellees had a 240-acre farm located about six miles northeast of Bardstown on the south side of U. S. Highway #62. The improvements consisted of a large residence with modern conveniences, a modest tenant house, a concrete-based barn, several small outbuildings and ponds. The acreage taken by this proceeding extended through the property for 2,900 feet, varying in width from 250 to 330 feet. The taking bisected the farm, leaving approximately 175 acres on the north side of the new highway and 46 acres on the south side of it with no improvements and with access to the public highway system solely by way of a county road.

The valuation testimony is as follows

For Appellant:
Before Value After Difference Value
A. B. Wiggington $65,000 $56,250 $8,750
David Rash 66,000 57,400 8,600
For Appellees:
Lee Russell 73,000 48,000 25,000
Everett Mudd 74,000 50,000 24,000
Joe English 76,000 50,000 26,000

Lee Russell, who rented the greater portion of appellees’ farm for the last 8 years and who owns and operates a 480-acre farm nearby, knew of the land values in the vicinity from his general information as well as from his specific knowledge acquired from comparable sales. Everett Mudd, an experienced and licensed real estate broker, had a thorough knowledge of the real estate market based both upon his numerous appraisals made for lending institutions and upon comparable sales. Joe English, also a licensed real estate broker and dealer, was familiar with the real estate market in Nelson County. Each of these men had adequate qualifications as an expert witness and the valuations placed upon appellees’ property by them had probative value.

While we realize that only 8% of the acreage of this farm was taken by condemnation and the award represents approximately 25% reduction in its market value, there is convincing testimony that the destruction of the unity of the farm as well as its resulting configuration has severely impaired its market value. The award is exceedingly liberal but is not one which we can reasonably say shocks our conscience and is so excessive as to require a reversal of the judgment.

The judgment is affirmed.

All concur.