author: • R. KENNETH ELLIOTT, Special Judge.

text:
    Dorothy Lane FENNELL and Robert William Fennell, (Plaintiffs) Respondents, v. ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation, (Defendant) Appellant.
    No. 31577.
    St. Louis Court of Appeals. Missouri.
    Oct. 20, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied Nov. 17, 1964.

      Gentry, Bryant & Sheppard, Arnot L. Sheppard, St. Louis, for appellant.
    Bernard A. Barken, Harold L. Satz, St. Louis, for respondents.
   • R. KENNETH ELLIOTT, Special Judge.

Plaintiffs, husband and wife, instituted this action for the injuries sustained by the wife, and plaintiff husband for the medical expenses and the loss of the services and society of his wife. Hereinafter we shall refer to plaintiff Dorothy Fennell as plaintiff.

On February 24, 1961, plaintiff, with her daughter and grandson, boarded one of defendant’s passenger trains at St. Louis, Missouri, to travel to Columbus, Georgia. At Carbondale, Illinois, it was necessary for plaintiff to change trains. It was admitted by defendant that it owned the railroad station and facilities involved herein at Carbondale, Illinois. Defendant’s three tracks ran on the east side of the passenger station in a north and south direction.

The train arrived in Carbondale at about nine o’clock p. m., at a time when it was dark and snowing very hard, and blowing very hard. When the train stopped, plaintiff proceeded toward the vestibule of the railroad car, carrying an overnight bag in her left hand, and with her right hand she held the hand of her three-year-old grandson who was following her. Plaintiff’s daughter brought up the rear, holding the boy’s other hand. As plaintiff started down the three train steps to the station platform to the west, plaintiff testified that it was her intention to step onto the station platform, which appeared to be directly beneath her. As she made the step from the bottom step with her left foot, instead of stepping on the station platform as she intended, her left foot went all of the way to the ground, between the bottom step and the station platform, and her right foot remained on the bottom step until after she had drawn her left foot up. This maneuver was accomplished, according to plaintiff’s testimony, by throwing herself back against the train entrance and grasping a handhold on the north side of the' train entrance with her right hand.

Defendant’s employee, a train porter, then assisted plaintiff to the platform, using a step box. Plaintiff, her daughter, and her grandson proceeded to the station house, thence to a drug store, purchased some ointment, and then went to a restaurant and ate. After finishing their food, plaintiff went hack to the station house and to the ladies’ room and rubbed some of the ointment on her leg.

Plaintiff boarded the southbound train to Columbus, Georgia, and after arriving in Columbus she consulted a doctor after becoming sick during the train trip from Carbondale to Columbus, experiencing severe pain in her back and leg. She returned the next day to St. Louis by automobile driven by her daughter, a trip of about 900 miles. On the day of returning from Columbus, Georgia, plaintiff consulted her family doctor and began taking treatment, including a hospitalization period of three weeks.

The station platform at Carbondale was 10V4 inches above the ground, and approximately 3¿4 to Syi inches horizontally west of the bottom step of the railroad car. The distance of the bottom step above the platform was about 19 inches. Plaintiff estimated the distance from the bottom step to the platform as being approximately two feet. From the top of a step box up to the bottom step of the train it was about 8Jdj inches.

The station house at Carbondale was 24 feet from the halted train. On the east side of the station house and under the eaves of the roof, there were ten 200-watt bulbs, separated 26.7 feet from each other. About 400 feet north of the station house door there were some floodlights, and other floodlights approximately 1,000 feet south, although defendant’s evidence was that these lights would not light up the area where the people were getting off the train, because the floodlights in question were to the east of the stopped train.

The sole ground of negligence submitted by plaintiff was defendant’s failure to provide sufficient light to adequately illuminate the platform and surrounding area. After verdict and judgment for plaintiff Dorothy Fennell in the sum of $6,400, and for plaintiff Robert Fennell, her husband, in the sum of $2,100, defendant appealed.

, Defendant claims that the trial court erred in denying defendant’s motions for a directed verdict for the reason that plaintiff’s evidence did not establish that defendant failed to “provide sufficient light to adequately illuminate” the station platform “and the surrounding area” because such evidence consisted of conclusions and was contrary to physical facts.

In determining whether plaintiff’s evidence made a submissible case against defendant, we view the evidence in the light most favorable to plaintiff, give it the benefit of all favorable, reasonable inferences, and disregard defendant’s evidence unless it aids plaintiff’s case. Southwestern Bell Telephone Company v. Chester A. Dean Construction Co., Mo., 370 S.W. 2d 270; O’Leary v. Illinois Terminal Railroad Company, Mo., 299 S.W.2d 873.

Defendant maintains that the only testimony regarding the sufficiency of light came from plaintiff and her daughter, and that their testimony constituted no more than conclusions as to the sufficiency of the light, citing Fowler v. Terminal Railroad Association of St. Louis, Mo.App., 372 S.W.2d 497; Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303; Peck v. Yale Amusement Company, Mo., 195 S.W. 1033; and Rush v. Townsend and Wall Company, Mo., 343 S.W.2d 44.

There is no question that the defendant’s train arrived in Carbondale at a time when it was dark. Both plaintiff and her daughter testified that at the point where they alighted from the train the light was very dim and that the only light they saw came from inside the train station, through the windows 24 feet away. According to defendant’s witness Humphries, the bulb over the- ticket office, which was replaced after the 9:15 train got to Carbondale, and the floodlights in the yard east of the track on which the train in question stopped, would not light up the area but would cast a shadow at the point where plaintiff alighted. This evidence, coming from defendant’s witness, would tend to corroborate the testimony of plaintiff and her daughter to the effect that the area was dimly lighted. In addition, plaintiff’s evidence showed that it was snowing hard; and this, of course, would affect the light coming from whatever lights were burning.

In distinguishing the cases cited by defendant, we note that in the case of Fowler v. Terminal Railroad Association of St. Louis, supra, the plaintiff therein submitted photographs showing the steps to be visible, and plaintiff admitted that he “seen” the steps. As this Court therein stated, this “took the issue of inadequate lighting out of the case.” In examining Lindquist v. S. S. Kresge Company, supra, cited by defendant, the evidence showed that plaintiff noticed the three lights over the landing where she fell, and that she had no “difficulty in getting around for lack of light.” Defendant also cites Peck v. Yale Amusement Company, supra, which involved a fall in a theater balcony. In this case, the criticism of the plaintiff’s testimony, characterized by the Court as being conclusions, stemmed not only from the need for a low light level in a theater, but from plaintiff’s broken language being practically unintelligible.

Defendant urges that the recent Supreme Court case of Rush v. Townsend and Wall Company, Mo., 343 S.W.2d 44, controls this case. We distinguish it because in the plaintiff’s own testimony in the Rush case she admitted she could see the children involved on the steps, and therefore her claim that the steps were inadequately lighted could not stand. As the Court therein stated:

“Plaintiff’s inability to see the chil'dren because - of inadequate and dim • light; -and -her ability to have avoided the brush with and jostling by them if she could have seen them, were essential elements of plaintiff’s claim for relief, and the burden of proving these facts was upon plaintiff. The keystone in the arch is the inability of plaintiff to see the children. The chief difficulty with plaintiff’s case is that by her own testimony plaintiff refuted this basic fact.”

Plaintiff contends that on this question of sufficiency of evidence, this case comes within the purview of Dixon v. General Grocery Company, Mo., 293 S.W.2d 415, wherein the plaintiff, a window washer, fell when a window sill was made dark by being covered by a canopy blocking the light. The Court stated, at page 420:

“The instant case differs from defendant’s case of Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303, 305(4), where testimony that it was ‘dark’ and ‘dim,’ was considered conclusions and of no probative value. In the instant case there was testimony that the canopy blocked the light off of the window sill and was the cause of the sill being dark and difficult to see. The probative value of the testimony was for the jury.”

Also, in Capstick v. T. M. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480, the Court accepted the testimony of a condition of being dimly lit where there was further evidence that the light was in the rear of a person descending the steps. In Gillespie v. Terminal Railroad Association of St. Louis, Mo.App., 204 S.W.2d 598, the Court said, at page 604:

“The plaintiff’s statements that the vestibule was dark or dim and that she looked and did not or could not see the step, were factual and proper, and not conclusions within the rule of exclusion. Busby v. Southwestern Bell Telephone Co., Mo.Sup., 287 S.W. 434, 438.”

■ In cases cited by defendant, we note that the common'thread is a bare assertion by; plaintiff describing the conditions as being dark or dim, either later refuted by plaintiff’s own testimony or lacking any further facts concerning such assertions.

In this case the jury could have believed from plaintiff’s evidence that the ten under-eave lights were not on, because plaintiff indicated on a photograph marked as Plaintiff’s Exhibit 1, the station window, the position from which she claimed the light was coming, and she further testified on direct examination:

“Q. As you stood there did you observe whether or not there was a light in that area?
“A. Only coming from the station window.”

Plaintiff’s daughter testified as follows:

“Q. Did you observe or see where any lights were on around the area ?
“A. Well, the only lights that I recall were coming from the station. That is the only one I remember.
“Q. When you say coming from the station, you mean inside the station?
“A. Yes, sir, through the windows.”

None of defendant’s witnesses testified directly as to whether the lights were turned on or off there on the night in question.

In addition, defendant contends that in connection with the plaintiff’s testimony concerning the events at the time she stepped from the train, and at the same time released her grandson’s hand, such would have been impossible inasmuch as defendant maintains that the normal reaction time of an individual, as recognized by Yeaman v. Storms, 358 Mo. 774, 217 S.W. 2d 495, 498, rules out the testimony because it is impossible of belief. We do not find that it was necessary for plaintiff to consume three-fourths of a second in deciding to let go of her grandson’s hand;' on the other -hand, this action would not involve a time to, see;a situation-and take corrective action, as her release of the hand could be found to be an involuntary act as she was stepping or falling down. Plaintiff testified:

“Q. When did you let go of his hand ?
“A. When I started to fall.
“Q. That’s when you turned loose of his hand, right?
“A. Yes, sir.”

We find that this testimony is worthy of belief. We rule this point against defendant.

Defendant’s next assignment of error is that plaintiff’s own evidence proves her guilty of contributory negligence as a matter of law. It is well established that since this accident occurred in the State of Illinois, the burden of proof was upon the plaintiff to prove by the greater weight of the credible evidence that plaintiff was in the exercise of ordinary care for her own safety, as set forth in Gerhard v. Terminal Railroad Association of St. Louis, 299 S.W. 2d 866, wherein the Supreme Court, en banc, stated:

“ * * * plaintiff was required, as an essential element of his case, to prove that decedent was in the exercise of due care for his own safety on the occasion in question. This is a question for the jury ‘when there is any evidence given on the trial which, with any legitimate inference that may be legally and justifiably drawn therefrom, tends to show the use of due care; but where the evidence, with all legitimate inferences that may be legally and justifiably drawn therefrom, does not tend to show due care on the part of plaintiff, the trial court is justified in instructing the jury to return a verdict for defendant.’ Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, 164 N.E. 142, 144.”

Defendant contends that plaintiff’s action in carrying an overnight bgg .in her left hand and holding her grandson’s hand with her right hand constituted a failure to exercise ordinary care as a matter of law. In the cases cited by defendant, we find that Chicago and Alton Railway Co. v. Noble, 132 Ill.App. 400, was a case wherein plaintiff admitted she saw a separation two and one-half feet wide, refused help from the nearby conductor, and was injured; in Ellis v. Southern Pacific, SO N.M. 76, 169 P.2d 553, on a bright day, plaintiff admitted she knew the distance and deliberately stepped forward; and in Trudnowski v. New York Central Ry. Co., 220 A.D. 503, 221 N.Y.S. 686, the accident occurred at 4:00 p. m. in daylight and the plaintiff left by a rear entrance where there were no attendants, and the plaintiff there predicated negligence upon failure to provide a step box to assist her, and to notify her as to the height of the bottom step above the platform. In Young v. Missouri Pacific Railway Co., 93 Mo.App. 267, we find that the court stated: “The platform seems to be well lighted enough.” And in Deskins v. Chicago, Rock Island & Pacific Railway Co., 151 Mo.App. 432, 132 S.W. 45, in daylight the plaintiff jumped at a platform three feet away.

We find these cases are not in point, but instead find that this case comes under Ardison v. Illinois Central Railway Co., 155 Ill.App. 274, affirmed by the Supreme Court of Illinois on the question of plaintiff’s contributory negligence as a matter of law, 249 Ill. 300, 94 N.E. 501. In Ardison v. Illinois Central Railway Co., supra, the plaintiff was alighting from a passenger train and was thrown or fell under the wheels, losing a leg. Plaintiff’s theory was that defendant failed to properly light the station platform, and the defendant in that case, as in this case, complained that plaintiff was guilty of contributory negligence as a matter of law because the plaintiff was carrying a basket and can. Both courts there held that the plaintiff’s negligence was a matter properly submitted to the jury. See also Chadbourne v. Illinois Central Railway Co., 104 Ill.App. 333; Chicago & E. I. Railway Co. v. Taylor, 102 Ill.App. 445; Illinois Central Ry. Co. v. Keegan, 112 Ill.App. 28, affirmed 210 Ill. 150, 71 N.E. 321; Shanklin v. St. Louis Public Service Co., Mo.App., 370 S.W.2d 649; Stakebrake v. Union Pacific Ry, Co., Mo.App., 185 S.W. 1166; Chartrand v. Southern Railway Co., 57 Mo.App. 425; Roussell v. St. Louis-San Francisco Railway Co., Mo.App., 257 S.W. 516.

Our own Supreme Court, in the case of Dean v. Safeway Stores, Inc., 300 S.W.2d 431, has examined this question. There, plaintiff, on leaving a grocery store, walked in the parking lot in the dark as the parking lot lights had not yet been turned on. Plaintiff tripped over a banana crate wire handle, and the court there held, on the issue of plaintiff’s contributory negligence, that such action was not contributory negligence as a matter of law, since the fact that the parking lot was dark neither precluded the plaintiff from using same nor caused plaintiff to be held to have “appreciated” the danger. Petera v. Railway Exchange Building, Mo.App., 42 S.W.2d 947..

In all of those cases the court found that the issue of plaintiff’s negligence was properly left with the jury. We find "it so in the instant case.

Defendant complains of Instruction No. 5 offered by the plaintiff. We have reviewed said instruction and find that it properly submitted the question of defendant’s negligence and plaintiff’s freedom from contributory negligence. Instruction No. 5 required that the jury find that plaintiff “was at all times mentioned * * * in the exercise of ordinary care for her own safety.” Moore v. Ready-Mixed Concrete Co., Mo., 329 S.W.2d 14; O’Leary v. Illinois Terminal Railroad Co., Mo., 299 S. W.2d 873.

Also, defendant requested, and the court gave, Instruction No. 3, which read as follows:

“The burden of proving that she was not guilty of any negligence in leaving defendant’s train at the time here involved rests upon the plaintiff, Mrs. Fennell. For that reason defendant has no duty to prove she was negligent. Unless she has proved by the greater weight of the believable evidence that she was in the exercise of that degree of care which an ordinarily prudent person would use under those circumstances, your verdict herein must be in favor of the defendant railroad company and against plaintiffs.”

This instruction clearly placed the burden of proving freedom from contributory negligence upon the plaintiff. Plaintiff was not required to include a finding on the matter of the burden of proof in her verdict-directing instruction.

.Defendants last preserved point is that plaintiff’s closing argument was improper. We note that the defendant’s request for a mistrial was not made until all the final arguments of the case were concluded, which situation falls squarely within the ruling in Shields v. American Car & Foundry, Mo.App., 293 S.W. 77, wherein the court said, at page 78:

“In our view, the request to discharge the jury was not timely. It should have been made at the time the request was made to rebuke plaintiff’s counsel for the remarks that were considered prejudicial to defendant’s rights.”

Moreover, defendant’s request for a mistrial was general and did not pertain to the specific parts of the argument of which he was complaining. Our Supreme Court has stated, in Minor v. Lillard, Mo., 306 S.W.2d 541, that where the defendant stated, “We are objecting to all that line of argument,” the court therein held that such an objection will not suffice where all of the argument was not erroneous or claimed to be. We rule this point against defendant'.

Defendant’s remaining point claims error in excluding certain evidence offered by defendant and admitting other evidence offered by plaintiff. This point has been abandoned inasmuch as defendant failed to carry it forward and develop it in the argument. V.A.M.R. Civil Rule 83.05; Catanzaro v. Duzer, Mo.App., 329 S.W. 2d 257; Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015.

Finding no reversible error, the judgment is affirmed.

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

RUDDY, P. J., not participating.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Anne BRANTLEY, Plaintiff-Appellant-Respondent, v. David COUCH, Defendant-Appellant, and Oscar Thompson, Defendant-Respondent.
    Nos. 31522, 31523.
    St. Louis Court of Appeals. Missouri.
    Oct. 20, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied Nov. 17, 1964.

      Hullverson, Richardson & Hullverson, Corinne Richardson, James E. Hullverson, St. Louis, for plaintiff-appellant-respondent.
    Heneghan, Roberts & Cole, John J. Cole, St. Louis, for defendant-appellant.
    Gray, Sommers & Jeans, James W. Jeans, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff in a chain collision between three in-line automobiles driven by John Eftink, Oscar Thompson, and David Couch, respectively. Plaintiff sued all three drivers, but preceding the trial defendant Eftink’s motion for summary judgment was sustained. The jury returned a verdict in favor of plaintiff and against both remaining defendants for $4,000, and judgment was entered in accordance therewith. Thereafter each defendant filed a motion to have the judgment set .aside and to have judgment entered in his favor in accordance with his motion for a directed verdict filed at the close of all the evidence, or in the alternative, for a new trial. The court sustained the motion of defendant Thompson to set aside the judgment against him and enter judgment in his favor and for a new trial; and overruled the alternative motions of defendant Couch. Plaintiff appealed from the judgment entered in favor of defendant Thompson and from the order granting him a new trial. Defendant Couch appealed from the judgment against him, and has also attempted to appeal from the judgment in favor of defendant Thompson.

The two collisions here involved occurred on August 9, 1961, somewhere between 9:00 and 10:00 P.M., at the intersection of Gravois and Dahlia Avenues, in the City of St. Louis. At that point Gravois is six lanes wide, but because cars were parked on both sides there were only two eastbound lanes and two westbound lanes available for travel. It was or had been raining and the streets were wet. The three automobiles being driven by Eftink, Thompson, and Couch were all proceeding eastwardly on Gravois, in that order, in the lane next to the centerline. The first collision occurred when the Eftink car, which had been brought to a stop at Dahlia in obedience to a stoplight, which changed from green to amber, was struck from the rear by the Thompson car. Shortly thereafter Thompson’s automobile was struck from the rear by the Couch car. Plaintiff, one of numerous passengers in the Thompson station wagon, sustained what is commonly called a whiplash injury to her neck.

With that brief statement of the evidence, to be augmented as required, we turn first to a consideration of plaintiff’s appeal. As might be expected, plaintiff’s initial assignment is that the court erred in sustaining defendant Thompson’s motion for judgment in accordance with his motion for a directed verdict. In that connection it is important to note that the court did not sustain Thompson’s after-trial motion for judgment on both of the grounds contained in his motion for a directed verdict, but only on specification 2. That specification read:

“2. That under the law and the evidence, neither the acts or the omissions of Oscar Thompson were the proximate cause of any injury to the plaintiff.”

The first specification, which was not sustained by the court, read:

“1. That under the law and the evidence, defendant Oscar Thompson .was not negligent.”

In effect, then, the court ruled that the evidence was sufficient to submit to the jury the issue of Thompson’s negligence, but that the evidence was not sufficient to show that Thompson’s negligence was the (or a) proximate cause of plaintiff’s injury. We emphasize this aspect of the court’s ruling because able and industrious counsel for plaintiff and defendant Thompson have devoted a considerable portion of their briefs to a discussion of whether or not Thompson’s negligence was a proximate cause of the second collision between the Thompson and Couch automobiles. Of course, if all of the evidence established that plaintiff’s injury resulted solely from the second impact, between the Thompson and Couch cars, then in order to recover against Thompson it would be necessary for plaintiff to show that Thompson’s negligence was the sole, or at least a concurring, cause of the second collision and plaintiff’s consequent injury. Seeley v. Hutchinson, Mo., 315 S.W.2d 821; Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243; See v. Kelly, Mo.App., 363 S.W.2d 213. Or if the two accidents were widely separated as to time and distance, and it was possible to identify with some definiteness the injuries suffered in each, the burden of proving in which accident an injury was sustained would be on the plaintiff. Sparks v. Ballen-ger, Mo., 373 S.W.2d 955.

But a different rule applies where two or more persons acting independently are guilty of consecutive acts of negligence, closely related in point of time, which' cause an indivisible injury; that is, an injury which the triers of fact decide they cannot reasonably apportion among the negligent defendants. According to the weight of authority, in such a case the tort-feasors are jointly and severally liable for all of the damages. The rule is stated in 38 Amer.Jur., Negligence, Sec. 257, pp. 946, 947, as follows:

“ * * * According to the great weight of authority, where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other tort-feasor, and the injured person may at his option or election institute suit for the resulting damages against any one or more of such tort-feasors separately, or against any number or all of them jointly. The in-, jured person is not compelled to elect between the tort-feasors in invoking a remedy to obtain compensation. * * if”

And see: Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243; Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33; Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321; Murphy v. Taxicabs of Louisville, Inc., Ky., 330 S.W.2d 395; Reed v. Mai, 171 Kan. 169, 231 P.2d 227; Micelli v. Hirsch, Ohio App., 83 N.E.2d 240; Restatement, Torts, Vol. 4, Sec. 879, p. 446; 65 C.J.S. Negligence § 102, pp. 639-645; Cooley, Torts, (4th Ed.), Sec. 86, pp. 279, 280; Harper and James, The Law of Torts, See. 10.1, p. 692; Wigmore, Joint-Tortfeasors and Severance of Damages, 17 Ill.L.R. 458; Prosser, Joint Torts and Several Liability, 25 Cal.L.R. 413. As the foregoing cases illustrate, the doctrine is particularly applicable in automobile chain collision cases.

All of the medical testimony was to the effect that the plaintiff sustained a single, indivisible injury, the whiplash to her neck. Doctors B. T. Forsyth and S. M. Rif kin so testified for the plaintiff, as did Dr. Henry Lattinville, who had examined plaintiff on behalf of both defendants but was called to the stand by defendant Couch alone. The evidence was sufficient to show that defendant Thompson’s negligence was the proximate cause of the first collision. Assuming, as he contends, that his negligence did not contribute to cause the second collision, the precise question presented, so far as plaintiff’s appeal is concerned, is whether there was sufficient evidence from which the jury could reasonably find that plaintiff’s indivisible injury was the proximate result in whole or in part of the negligence of Thompson in causing the first impact. In determining that issue we review the evidence from a standpoint favorable to plaintiff, give her the benefit of any part of the defendant’s evidence favorable to her and not contradicted by her own testimony or not contrary to her fundamental recovery theory, give her the benefit of the reasonable inferences from all the evidence, and disregard all of defendant’s evidence unfavorable to plaintiff. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, Sperry v. Tracy Dodge-Plymouth Co., Mo., 344 S.W.2d 108.

On direct examination plaintiff testified that the time between the first impact and the second “ * * * was just a matter of a second, just real short time”; that when she felt Thompson apply his brakes she looked up and saw the Eftink car less than a car length away she leaned forward a little and the impact “ * * * moved me forward just a little”; that the impact was slight; that she couldn’t say whether or not her head and neck were snapped by the first impact; that the second impact, was from the rear, of terrific force, and that she was thrown back in the seat; that immediately thereafter she had quite a bit of pain in her head and was dazed; and that “I can’t say, (in which collision she was hurt), the other happened so fast, I can’t really distinguish.” On cross-examination by defendant Thompson plaintiff agreed with a prior statement taken on the day of the accident wherein she stated that she leaned forward because she knew that Thompson was going to hit the Ef-tink car and that she heard a crash in the back and her neck went forward. She remembered also stating that she did not think the first impact j arred her, but she insisted, “Well, I’m not disputing what I said, but it happened so fast as I told you that night that I can’t distinguish between what happened when I was leaning forward and what happened when we were hit from the rear.” . Dr. Lattinville testified that, “ * * * any forward, or sideward, or backward movement of the neck, a sudden jerking, so to speak, it can be in any direction, to the side, forward or backward, would give you sprain (of the neck).” Counsel for defendant Couch posed a hypothetical question in which the first impact was described as violent (based on a statement in Thompson’s deposition). Counsel for defendant Thompson objected on the grounds that, “ * * * it overlooks the element I think the most important, that when, with the first impact that this person riding in the car saw the impending contact which she described as being a fair contact, a very slight impact, and anticipating it she leaned forward, and that with the first impact there was no snapping of the neck or movement of her body other than leaning forward.” “THE COURT: Include that, Doctor, now you may answer that.” Based on the amended hypothesis, the Doctor was asked whether he was able to state with any degree of reasonable medical testimony which of the two impacts would cause the condition he found. His answer: “Gentlemen of the Jury, I honestly don’t believe you could say which one caused it, because, certainly, I have had patients hit from the side, had head-on collisions, and all sustained this injury. Now Mr. Jeans mentioned if she was braced for it and had her neck stiff, and so on, perhaps both, perhaps it was the one behind, but I honestly don’t believe in my mind you could say which one caused the damage and did not both impacts cause.- it.” While the Doctor testified on cross-examination that if an impact from the front was slight and one from the rear was severe he would tend to say the rear end impact caused more damage, he also stated that he had had cases where there had been a light .impact and substantial injury. In view of the foregoing testimony we are of the opinion that the evidence was sufficient to submit to the jury the issue of whether plaintiff’s single, indivisible injury was the proximate result in whole or in part of the negligence of defendant Thompson, and that the trial court therefore erred in sustaining his motion for judgment.

Plaintiff also contends that the court erred in alternatively sustaining defendant Thompson’s motion for a new trial. The reason given by the court for its ruling was that it had erred in giving Instructions Nos. 1 and 7, “ *. * * because there is not substantial evidence in the record on which the jury could base a finding that the Plaintiff was injured in the first impact.” This is, of course, the same grounds upon which the court sustained defendant Thompson’s motion for judgment, ■ and what we have heretofore stated regarding the sufficiency of the evidence is equally applicable to the court’s ruling on Thompson’s motion for a new trial.

In his appeal defendant Couch contends that the court erred in sustaining defendant Thompson’s alternative motions for judgment or a new trial; in giving instructions numbered 1 and 7 on behalf of plaintiff; and in refusing to give Instruction No. A offered by him. In view of what we háve heretofore held the first point is-now academic, but in any event defendant-Couch was not aggrieved by the court’s action within'the meaning o'f Section 512.020, RSMo 1959, V.A.M.S., and had no right‘of appeal therefrom. Stutte v. Brodtrick, Mo., 259 S.W.2d 820. As to Instruction No. 1, Couch’s initial complaint is that the instruction failed to hypothesize sufficient facts from which the jury could find negligence on his part. In brief, the facts hypothesized were that as the Eftink, Thompson and Couch automobiles approached the intersection the traffic light changéd from green to amber, and that Eftink reduced his speed and stopped; that Thompson; then 100 feet to the rear of Eftink, traveling-at 25 miles an hour, did not apply his brakes Until he was within 25 feet of Eftink, when-he suddenly reduced his speed but struck'the rear end of Eftink and came to a sudden -«stop; that almost immediately thereafter-iCouch collided with the rear end of Thompson; and that Couch failed to exercise the highest degree of care and was negligent in that he suffered and permitted his car to strike that of Thompson’s. The parties are in agreement that the submission as to Couch was under the rear-end collision doctrine. But defendant contends that the instruction was defective in that facts should have been hypothesized from which the jury could have found that the Thompson automobile, which came to a sudden stop, was at rest long enough for Couch, in the exercise of the highest degree of care, to have stopped his car and avoided striking the rear of Thompson’s vehicle, citing Doggendorf v. St. Louis Public Service Co., Mo.App., 333 S.W.2d 302 and Thaller v. Skinner & Kennedy Co., Mo.App., 339 S.W.2d 487. The instruction reviewed in the latter case was not based on the rear-end collision doctrine. And the factual situation presented in the instant appeal is substantially different from that which prevailed in Doggendorf v. St. Louis Public Service Co., supra. Couch admitted that he saw the traffic light change from green to amber and observed Eftink’s automobile come to a gradual stop. While the record does not show Couch’s precise distance from the Eftink car at that time the evidence indicates that it was in excess of 200 feet. Couch stated that the Thompson car was ahead of him in the same, lane in which'he was traveling, and that there was another car beside him in the lane to his right. When he saw the Ef-tink vehicle stop he knew, therefore, that he would be required to come to a stop before he reached Thompson’s car. The mere fact that Thompson’s car struck Eftink’s vehicle and came to a sudden stop was immaterial so far as Couch’s negligence was concerned. For, knowing when Eftink’s car stopped that he would have to come to a halt, he nevertheless took no action until he saw Thompson’s stoplights go on when Thompson was only 25 feet from Eftink’s automobile. It was plaintiff’s theory, supported by the foregoing evidence, that after Eftink stopped Couch overtook Thompson to such an extent that the second rear-end collision occurred “ * * * immediately thereafter * * * ” the first, and her factual theory was submitted to the jury in those words. Plaintiff’s evidence and her submission accorded with the rear-end collision doctrine, Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Witherspoon v. Guttierez, Mo., 327. S.W.2d 874; McVey v. St. Louis Public Service Co., Mo., 336 S.W.2d 524, and we find no merit in Couch’s complaint.

It is next contended that Instruction No. 1 was erroneous in that it did not submit to the jury the issue of whether plaintiff suffered her injuries solely from the first impact. The answer to that argument is that plaintiff did not introduce any evidence which would have supported such a submission. There was testimony, by Dr. Rifkin, that in his opinion her injuries were received as a result of the second collision; there was testimony, by plaintiff, that she was unable to state in which collision she was injured; and there was testimony by defendant’s witness, Dr. Lattin-ville, that he could not say with reasonable medical certainty whether the first, or the second, or both caused the injuries. But there was no evidence that plaintiff’s injuries were suffered solely as a result of tlie first impact.

Defendant’s final criticism of Instruction No. 1 is that it was inconsistent, confusing and misleading regarding the liability of Thompson and Couch. The instruction informed the jury that if it found that Thompson’s negligence was the sole cause of the second collision its verdict should be against him alone; that if Couch’s negligence was the sole cause, its verdict should be against him alone; and that if both were negligent in the particulars specified as to each, plaintiff was entitled to a verdict against both. We fail to see wherein the instruction was inconsistent, confusing, or misleading.

Couch next complains that Instruction No. 7, on damages, was erroneous in that, as in Instruction No. 1, the issue of whether plaintiff suffered her injuries solely as the result of the first impact was not submitted to the jury. What we have heretofore said regarding that feature of Instruction No. 1 is equally applicable to the same criticism of Instruction No. 7.

Defendant’s final point is that the court erred in refusing to give his Instruction No. A, based on the emergency doctrine. As stated in Jones v. Hughey, Mo., 283 S.W.2d 550, 552:

“The emergency doctrine is not a defense and a defendant is not automatically exonerated because an emergency existed. The doctrine is a principle of law which means the fact that action was taken in an emergency is a factor that may be considered in determining the reasonableness of the action. Rohde v. St. Louis Public Service Co., Mo.Sup., 249 S.W.2d 417. But the emergency doctrine has no application and may not be asserted if the emergency arises wholly or partially from the negligence of the one who seeks to invoke the doctrine. Restatement, Torts, Vol. II, § 296; Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254; Rohde v. St. Louis Public Service Co., supra.”

The emergency hypothesized in defendant s refused instruction was the abrupt stopping of Thompson’s car, without adequate warning, when it struck Eftink’s car and stopped, partly in Couch’s lane and partly in the one to his right. But as we have heretofore pointed out, according to Couch’s own testimony he saw the Eftink automobile come to a stop in his lane at Dahlia when the stoplight changed from green to amber. At that time he was at least 200 feet away, traveling at 25 miles per hour, with other eastbound traffic in the lane to his right and westbound traffic in the westbound lane to his left. He knew or should have known that under normal circumstances Thompson’s car, preceding his, would come to a stop short of Eftink’s car. He likewise knew or should have known that he would have to bring his car to a stop short of Thompson’s car. He needed no further warning of his need to stop. The only thing he didn’t know was that Thompson would proceed farther forward than he should have gone, and, in so doing, would strike Eftink’s car. Had Thompson made a normal stop a few feet to the rear of Ef-tink it could not validly be contended that Couch was confronted with a sudden emergency. Similarly, the mere fact that Thompson went farther than he should have, and struck the Eftink car, did not present Couch with a sudden emergency. In short, Couch’s own testimony showed that no sudden emergency arose, and for that reason Instruction No. A was properly refused. There are other deficiencies which would also justify the court’s refusal, but the foregoing will suffice.

It follows from what has been said that the judgment rendered by the court in favor of defendant Thompson, and the alternative order sustaining his motion for a new trial, should be reversed and the cause remanded with directions to reinstate the judgment in favor of plaintiff and against defendant Thompson; and that as to defendant Couch the judgment rendered against him should be affirmed. The Commissioner so recommends.

PER CURIAM..

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

Accordingly, judgment in favor of defendant Thompson and alternative order sustaining motion for new trial is reversed and cause remanded with directions to reinstate judgment in favor of plaintiff and against defendant Thompson; that judgment as to defendant Couch be affirmed.

RUDDY, P. J., WOLFE, J., and JAMES-D. CLEMENS, Special Judge, concur.

ANDERSON, J., not participating.


author: HUNTER, Judge.

text:
    William H. ALLISON et al., Plaintiffs-Respondents, v. Ernest W. MOUNTJOY, Defendant-Appellant.
    No. 23957.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.

      Howard W. Bevins, Kansas City, for appellant.

      Harold T. Van Dyke, Billy S. Sparks, Kansas City, Karl V. Shawver, Jr., Paola, for respondents.
   HUNTER, Judge.

Plaintiff-respondents, Mr. and Mrs. William H. Allison, brought suit in the Circuit Court of Jackson County on a $10,-000 check given by defendant-appellant, Ernest W. Mountjoy, in accordance with a real estate contract for the purchase of plaintiffs’ farm and upon which defendant stopped payment allegedly wrongfully. Defendant filed an answer alleging (1) that the check was obtained from him by plaintiffs by means of fraud and deceit, and (2) that there was no consideration for the issuance of the check and it is void. Defendant also filed a counterclaim for $20,-000 alleging plaintiffs fraudulently represented the water supply upon the farm “was excellent and supplied the house and barns adjacent thereto and they had not been required to haul water to said farm.”

The causes were tried to a jury which, at the close of the evidence on May 2, 1963, was directed in Instruction No. 1 that if defendant as down payment on the real estate contract gave plaintiffs a check for $10,000 and thereafter stopped payment on that check and has not paid it, “then you-will find the issues for plaintiffs William H. Allison and LaVelle B. Allison, unless you believe from the evidence that the check was obtained (by plaintiffs) by means of fraud and deceit. * * * If you find for plaintiffs, William H. Allison and LaVelle B. Allison you will assess their damages .at the sum of Ten Thousand Dollars, with interest thereon at the rate of 6% from the date payment of check was refused.”

The jury was also given form of verdict Instruction No. 11 to the effect that if they found for plaintiffs on plaintiffs’ petition for the principal amount or the principal amount and interest, and in favor of plaintiffs on defendant’s counterclaim their verdict may be in the following form: “We,, the jury, find the issues in favor of the-plaintiffs and assess the amount of their recovery at the sum of $- principal,. and we further assess the amount of interest at the sum of $-, and we find the-issues in favor of plaintiffs on defendant’s, counterclaim.-Foreman.”

The jury’s verdict returned in open court was: “We, the Jury, find the issues in favor of the plaintiffs and assess the amount of their recovery at the sum of $1.00 (one) Principal, and we further assess the amount of interest at the sum of none and we find the issues in favor of plaintiffs on defendant’s counter-claim. Foreman Guy W. Brouse.” Judgment was immediately entered accordingly and the jury was discharged. Defendant neither filed a motion for a new trial nor appealed from the adverse judgment on his counterclaim.

On May 11, 1963, plaintiffs filed a motion to set aside judgment entered and to enter proper judgment or to correct jury’s verdict, or in the alternative motion for new trial on sole issue of damages, for the stated reason that where there is no controversy as to the amount due under a contract or note, if defendant’s defense fails, the court should instruct the jury to find for the total amount due. Further, that the jury had found in favor of plaintiffs and against defendant but erroneously inserted an improper amount in the written verdict; and, that the court should correct the verdict by striking out the words and figure “$1.00 (one)” and insert “ten thousand ($10,000) dollars” and enter judgment on the verdict as corrected, or grant a new trial as to damages only.

On July 17, 1963, the court sustained plaintiffs’ motion to set aside judgment entered and to enter proper judgment for $10,000 or to correct jury’s verdict, and overruled plaintiffs’ motion for a new trial on the sole issue of damages. Defendant appeals from the resultant judgment of $10,000.

Additional facts as developed during the trial are necessary to an understanding of the issue before us on this appeal.

Plaintiffs who had lived on the farm 13 years listed it for sale in early 1961 through Mr. D. A. Glenn, a real estate broker. The farm consisted of 400 acres with 14 ponds, one for each pasture. There were 10 fe'ed lots with 2 stock tanks in each lot. Each stock tank held approximately 600 gallons of water. There were no ponds in the feed lots but only in the pastures. Water was piped from a large spring fed reservoir holding from 2,000 to 3,000 gallons of water to a hydrant behind the barn and run by hose to each of the feed lots. The farm was essentially in grass and used for cattle feeding. Through the years plaintiffs had cattle on the farm in large numbers. Improvements on the farm included 2 large barns, 5 sheds, and a brick residence.

The framework for the controversy began on January 14, 1963, when defendant who was looking for a farm to purchase went to plaintiffs’ farm, located near Louisburg in Miami County, Kansas, with his wife and Mr. Glenn to inspect it.

Defendant was a concrete contractor in Kansas City. He had been raised on a cattle farm and was experienced in its operation. His father had been a buyer for twenty-five years in the Kansas City stockyards. Defendant inspected the farm that day. ■ He returned the following Sunday, January 15, and again on January 17th, each time inspecting the farm. After the January 17th inspection he carefully read and understood the contract in question which had been prepared by Mr. Glenn in his presence and then, together with his wife and plaintiffs, signed it.

Plaintiffs then signed a warranty deed and gave it over to Mr. Glenn. Among other things the contract provided that plaintiffs were to convey a 159.90 acre described portion of the farm by warranty deed to defendant and his wife “In consideration of which, Said Parties of the second part covenants and agrees to' pay unto the said part — of the first part, for the same, the sum of Seventy Five Thousand and No/100-Dollars, as follows r $10,000.00 Cash on the signing of this contract receipt whereof is hereby acknowledged, and same is payable to William H. Allison and LaVelle B. Allison, his wife, and $65,000.00 Cash when Warranty Deed is delivered together with an abstract brought down to date showing a good Title, * * * Possession will be given Second parties on April 1st, 1961. * * * and same is held by D. A. Glenn, Broker, until final payment is made. * * * First parties agree to give Second Parties an option to purchase 240 acres (described in detail) for the sum of $50,000.00 on or before July 1, 1962. * * * That if default be made in fulfilling this agreement, or any part thereof, by or on behalf of said parties of the second part, this agreement shall, at the option of said parties of the first part, be forfeited and determined, and said parties of the second part shall forfeit all payments made by him on the same, and such payments shall be retained by said parties of the first part in full satisfaction, and in liquidation of all damages by them sjistained * * (All italics ours.)

At the time of signing the contract defendant wrote his mentioned check for $10,000 payable to plaintiffs and as they all sat around a table either gave it to plaintiffs or to Mr. Glenn who immediately and in defendant’s presence gave it to plaintiffs. Defendant did not protest this, nor did he mention it then or at any other time that evening. Then they all drove to a restaurant in Louisburg and had dinner.

Next door to the restaurant was a filling station that sold water to farmers. As a result of something said that evening by an employee at the filling station to defendant, on his return to Kansas City later that evening defendant telephoned Mr. Glenn and told him to hold up the contract. The next morning defendant again visited the filling station and talked to its operator, Jay Blair. He then immediately telephoned his hank and stopped payment on the check. Later that day when Mr. Glenn telephoned him, defendant told Glenn, “to never mind going on with the deal, as far as I was concerned the deal was off.”

We turn to defendant’s own testimony as to why he stopped payment on the check and refused to complete the purchase. He placed it on two grounds: (1) the giving of the check to plaintiffs by Mr. Glenn and (2) misrepresentations about the adequacy of the water supply. After saying he did not think the giving of the check by Mr. Glenn to plaintiffs was handling it in a “businesslike manner” but rather that Glenn should have held the check until the deed was delivered, he further stated, “Q. There was no agreement that he was to hold that check and not cash it until delivery of the deed, was there? A. No, sir, Q. So if you gave the check made out to Mr. and Mrs. Allison, you expected it to be cashed by Mr. and Mrs. Allison, didn’t you? A. Eventually, yes, sir. Q. As a matter of fact, the contract itself calls for the payment of $10,000 cash, doesn’t it? A. Yes, sjr> * * * Q. And you were complying with that when you wrote a check, is that right? A. Yes, sir. Q. So to you that check was the same as cash? A. Yes, sir. Q. And you intended it to be cash, didn’t you? A. Yes, sir. * * * Q. You understood that (the contract) meant that the $10,000.00, if you didn’t go through with the deal, would be liquidated damages, didn’t you? A. Yes, sir.”

Defendant’s other given reason, that plaintiffs had misrepresented the adequacy of the water supply is difficult to summarize. We set out defendant’s own testimony on the subject. On the occasion of defendant’s first visit to the farm, “he (Mr. Allison) at that time told me that there was ample water supply for the barn, the house, and for the cattle in the- feed lots, and which he showed me the tanks in every feed lot. He had two tanks in each feed lot. And he also had a bunch of hose which he showed me what he done, he unrolled this hose and taken it to each tank to fill the tanks. * * * I asked Mr. Allison if he had ample water supply at the house and for the barns and for the cattle. He said he did. He said there was only one time that his reservoir went low and went dry is when somebody unbeknown to him or anybody had left the water on and it drained the reservoir that day and he had saw it on and the water went clear down over the hill. When he saw it, of course, he turned it off, but it had drained the reservoir and it recuperated overnight and filled up. Q. The reservoir filled itself naturally overnight? A. Filled up overnight.”

On the second visit, “He (Mr. Allison) merely said there was ample water to supply all of the buildings and the cattle and feed lots. Q. * * * Now, did he mention to you at this time how many cattle that he had run on this farm himself? A. Yes, he did, he mentioned it several times * * * from 300 on up to six or seven hundred head, which wasn’t there at all times but various times.” (Both parties agreed it takes about twenty-two gallons of water per head of cattle per day.)

On defendant’s third visit, “It was brought up again at the lot again about the water supply and I at that time asked Mr. Allison again the direct question if he had enough water to supply the house,- the barn and the feed lots, and he said that he did have enough water. I asked him if he had ever hauled any water and he said he had never hauled any water at all on this farm. * * * He brought it up again about the one occasion when the well, somebody left the water on and it run the reservoir dry, but it did recuperate overnight. * * * Q. You weren’t told that water was- hauled to fill that reservoir even on that one occasion ? A. No, I was not.”

At the trial in support of his claim of fraudulent misrepresentation of the adequacy of the water supply defendant stated that Mr. Ailison had never told him he hauled water from his ponds to fill up tanks in his feed lots or that he had ever hauled water. “He had told me he had never been in need of water on the farm.” Defendant admitted in his deposition which had been taken prior to trial, that Allison had told him, “ 'Only on one occasion did I ever have to haul any water, and that was when somebody left the faucet on, out at the barn, and it run the water clear down the hill, and emptied the reservoir,’ and he hauled water on that one occasion.”

Mr. Allison testified he still owned the property; that in 1960 he had around 600 head of cattle on his farm. “I told him there was plenty of water on the place. * * * I told him I had never had to haul but one load of water to the reservoir” and that was when the hydrant was left on. “I have hauled since I have lived there, since ’52, I have hauled approximately five or six tanks of water.” One such occasion was when the pump was frozen but the reservoir was full. The load of water was not put in the reservoir. The few other occasions were to save time when he was in a hurry. It was much faster to haul water from a pond to the tanks than to use the hose to fill the tanks and he was in a hurry to leave to go to town. He has never bought more than 5 tanks of water. He has never hauled any water from the ponds to the reservoir, nor had water hauled from any source to the reservoir except the one mentioned occasion of the faucets being left on and then he had only one tank hauled. He has, in cold weather for convenience, “hauled several loads of water from the ponds to the feed lots.” He hasn’t hauled any water from the ponds in five years. There is plenty of water for the 160 acres sold defendant, in fact, there is “plenty of water for the entire 400 acres.” He told defendant there was enough water to fill the tanks from the reservoir.

Witness J. T. Blair, operator of the mentioned filling station was called as a witness by plaintiffs. He stated he had hauled no water to the Allisons since the spring of 1952 except on several occasions when the pipes were frozen and he would put two loads in a stock tank. He hasn’t hauled any water to the Allisons for the past six or seven years- — -it was back around 1952. “Mr. Mountjoy asked me if I had hauled them water and I told him, yes, we have hauled practically everybody in the community down there.”

Apparently pursuant to a court order requested by defendant a test of the water flow rate of the spring feeding the reservoir was made on April 30, 1963 with four persons present. The cement and stone reservoir is approximately 8 feet in diameter and is 15 feet deep. It holds about 2,000 to 3,000 gallons of water. Without detailing what occurred, the best that can be said for this test was that it was inconclusive in so far as showing how much water the spring supplied to the reservoir and this for the reason those making the test pumped only a relatively small amount of water out of the top of the reservoir before testing to see how much the spring replaced in a one-hour period. This test showed that 5/16 of an inch recovery (near the top) took one hour and represented a flow of about 11 gallons. All the witnesses involved in the test agreed that the lower you get the water in the reservoir the less the back (head) pressure on the spring and the faster the water will flow into the reservoir. The testimony was that it is the last 5/16 of an inch from the top that is the slowest to come in and that it will finally get so high it won’t flow any more because it is a gravity flow. None knew how fast it would flow if the level had been lowered more. Defendant’s witness frankly stated that to get an accurate recovery measurement the only way was to lower the reservoir water “much farther * * * let’s say quite a few thousand gallons * * Witness Woolman, who admitted the test made would not give any idea of how much water the spring supplied daily or could supply did say that with drought in mind he wouldn’t attempt over 50 cattle at a time.

It is defendant’s sole contention on this-appeal that the trial court lacked “jurisdiction” to sustain plaintiffs’ motion and increase (additur) the jury’s verdict from $1.-00 to $10,000; that the verdict was for nominal damages and this was proper. Defendant wants the verdict and judgment for one dollar reinstated and did not ask and does not now seek a new trial.

The source of defendant’s contention is S.Ct. Rule 71.06, V.A.M.R. (formerly statute Section 510.270, V.A.M.S.) which provides in part, “When a verdict shall be found for the plaintiff in an action for the recovery of money only, the jury shall also assess the amount of the recovery * * In line with the statute is the general rule that in suits for a money judgment it is the province of the jury to determine all issues, including those concerning liability and damages. In those situations controlled by the general rule the court is without authority to add to the amount the jury has awarded as damages and thus increase that award. City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839(20); and see, Thorne v. Thorne, Mo., 350 S.W.2d 754; Jaeger v. Agnew, Mo.App., 252 S.W.2d 847; Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610.

However, there are well known exceptions to the general rule. Or more accurately, in those situations where there is no issue concerning the amount of damages' for the jury to determine, the trial court in order to correct the verdict may amend the verdict by increasing the amount found by the jury to the correct amount. Thus, it is said that corrections may be made by increasing the jury’s verdict by amending it (1) where the error is merely clerical or formal, (2) where the trial court has or could have instructed a verdict for a'certain sum, (3) where the determination of the amount is simply a matter of mathematical calculation based on conceded or undisputed facts, (4) where the undisputed evidence shows that the prevailing party is entitled to at least a sum certain. See, 89 C.J.S. Trial § 517(2), page 203; State ex rel. and to Use of Scarborough v. Earley, 240 Mo.App. 868, 219 S.W.2d 879; State ex rel. Witte Hardware Co. v. McElhinney, 231 Mo.App. 860, 100 S.W.2d 36; Annotation, 56 A.L.R.2d 213.

The judge, of course, cannot under the guise of amending the verdict, invade the province of the jury or substitute his verdict for theirs.

In 1936 our Supreme Court, en Banc, in Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 105 A.L.R. 1063, had before it a suit on sixteen promissory notes which specified the amounts to be paid, the rate of interest and the time from which interest runs. The court held that in an action on a written instrument for payment of money, the execution of which is admitted, the trial court may properly direct a verdict for plaintiff where the only defense fails as a matter of law. In referring to Section 973 RSMo 1929 (Now S.Ct. Rule 71.06), the court said, loc. cit. 1155, “ * * * we think that section 973, in providing that ‘when a verdict shall be found for the plaintiff in an action for the recovery of money only, the jury shall- also assess the amount of the recovery’—the statute means and was intended to apply only where there is an issue as to the amount. * * * It has been said, and we think correctly, that, ‘A verdict is the decision of a petit jury upon an issue of fad submitted to them. (Citations omitted) If there is no issue of fad as to the amount there is nothing, in that regard, for the jury to decide.”

Sachs Steel & Supply Co. v. St. Louis Auto Parts & S. Co., Mo.App., 322 S.W.2d 183, involved a suit for rents under a lease. The jury returned a verdict for defendant. The St. Louis Court of Appeals held that where the ultimate facts to render judgment for the plaintiff-lessor had been conceded, and the only defenses submitted were without basis and unproved, there was nothing for the jury to pass on and' the trial court should have directed a verdict. The trial .court having failed to do so, the appellate court reversed and remanded the cause with directions to the trial court to enter judgment for plaintiff in the amount due under the lease.

It is the rule that if the trial court could have directed a verdict for the correct amount of damages it may timely correct a verdict containing an erroneous sum for damages by amending the verdict and entering judgment accordingly. And if the trial court fails to so correct the verdict, the appellate court on proper presentation on appeal may do so or may order the trial court to do so. S.Ct. Rule 83.13(c); Howard Nat. Bank & Trust Co. v. Jones, Mo.App., 238 S.W.2d 905(9).

As stated in the cases the better practice is for the trial court to have the jury correct its own verdict immediately following the return of the verdict into court. McManus v. Farmers. Mutual Hail Ins. Co. of Mo., 239 Mo.App. 882, 203 S.W. 107, 114.

In McLaurin v. Frisella Moving and Storage Co., Mo.App., 355 S.W.2d 360, in connection with a claim for unpaid wages and penalty the jury verdict and judgment was for $2,809.45, an inadequate amount. The appellate court stated, loe. cit. 364, “The only issue of fact in the case was whether plaintiff was indebted to defendant for the fee paid to the employment agency. That issue was resolved by the jury in favor of plaintiff, and no error appears as to its decision. Defendant admitted that it had not paid plaintiff the wages of $59.45 which were due her at the time she was discharged, and conceded that by the terms of the contract of employment plaintiff’s compensation was to be at the rate of $275 per month. To remand the case for a new trial as to the issue of damages would be a futile gesture. The amount of the penalties to which plaintiff is entitled is a mere matter of calculation, which this court can make. Home Trust Co. v. Josephson, supra. In such a situation we may, after reversing the judgment nisi in whole or in part, either enter a new-judgment here,-or remand the cause with directions-to enter such judgment. Civil Rule 83.13(c), V.A.M.R. Compare Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426; Central States Life Ins. Co. v. Bloom, 345 Mo. 982, 137 S.W.2d 517.” To the same effect see, LeCompte v. Sanders, Mo.App., 229 S.W.2d 298(6); John Deere Company of St. Louis v. Davis, Mo.App., 335 S.W.2d 686; Howard Nat. Bank & Trust Co. v. Jones, supra, affirmed, 243 S.W.2d 305.

In Wheeler v. Cantwell, Mo.App., 140 S.W.2d 744, this court had before it a suit on a promissory note. The jury verdict and judgment were for $258.67. We said, loe. cit. 749, “With these facts established, the question of the amount due was a mere matter of arithmetic. The jury found for plaintiff in the sum of $258.67, when, in fact, there was due to plaintiff, on the date of trial, October 25, 1938, after allowing all credits claimed by him, the sum of $313.-34.” * * * “Since, under the facts in this case as it comes to us, the amount which plaintiff is entitled to recover is a mere matter of calculation, it follows that we may calculate the amount due and direct an entry of judgment accordingly.

“The judgment is, therefore, reversed and the cause remanded, with directions to the trial court to enter judgment as of the date of the trial in favor of plaintiff in the sum of $313.34.”

In the case before us do the facts come within any of the rules that permit a trial court to increase the verdict? Plaintiffs contend the jury on proper instructions found the liability issue in their favor and the damages were a certain and undisputed $10,000 which Instruction No. 1 directed the jury to award if it found for plaintiffs on the question of liability and against defendant on his defenses. Hence, say plaintiffs, they were entitled to a directed verdict for $10,000 and the trial court properly corrected the verdict and entered judgment in that sum. The defendant asserts he has presented valid defenses' of fraud and failure of consideration;- that the $10,-000 down-payment is--a penalty-and-that plaintiffs by failing to show their actual damages are precluded from- any verdict except for nominal damages.

The entire transaction before us occurred in the State of Kansas and involved the sale of Kansas land. The substantive law of Kansas controls. The Kansas case of Gregory v. Nelson, 147 Kan. 682, 78 P.2d 889, held that a $15,000 down payment upon the purchase of land sold for $80,000 which pursuant to the contract was retained as liquidated damages upon breach, was not excessive so as to constitute a penalty, and that the vendor was entitled to retain it. The language used in that contract is substantially the same as that used in the contract before us. We have concluded that the Gregory case is controlling, and that the $10,000 payment made by the check in question is for liquidated damages and not a penalty and that it is no defense to plaintiffs’ suit that plaintiffs did not adduce evidence of actual damages. And see, Annotation, 6 A.L.R.2d 1418.

However, we are unable to agree with plaintiffs that the jury on proper instructions has passed on the issue of liability by finding that issue for plaintiffs and by finding against defendant on his defenses so as to resolve any issue concerning the liability of defendant. While it is true the jury found those issues for plaintiffs it did so under the guidance of verdict directing Instruction No. 1 which is reversibly erroneous under the plain error rule. S.Ct. Rule 79.04.

Instruction No. 1 directed the jury to find for plaintiffs if it found and believed certain facts “unless you believe from the evidence that the check was obtained by William H. Allison and LaVelle B. Allison by means of fraud and deceit as alleged in the answer of Ernest W. Mount joy. You are further instructed that the burden of proof is on the defendant Mountjoy to prove to your reasonable satisfaction by a preponderance of the evidence'the'defense that the check was obtained by fraud and deceit.” (Emphasis ours.)

In Bell v. Pedigo, Mo., 364 S.W.2d 613, 620, our supreme court ruled that “from after the date when this opinion shall have been printed in the Southwestern Reporter advance sheets, burden of proof instructions in civil cases which contain either the phrase indicating that one’s burden is to prove his case or defense by the preponderance, that is, the greater weight of the credible evidence ‘to the satisfaction of’ or ‘to the reasonable satisfaction of,’ the jury (or any combination of those phrases or words of similar meaning), will be reversibly erroneous.” And this for the reason such words “to the reasonable satisfaction of” require a substantially greater burden of proof than the law casts upon such plaintiff or defendant.

Bell v. Pedigo, supra, appeared in the March 19, 1963, advance sheets. The trial of the instant case began on April 30, 1963. Hence, it was- reversibly erroneous for the court, at plaintiff’s request to have given Instruction No. 1 containing the criticized phrase “to prove to your reasonable satisfaction.”

In passing, we note that as to his burden of proof plaintiff in Instruction No. 1 required • only that the jury “find and believe” certain facts. Yet in the same instruction but concerning defendant’s burden of proof the requirement was twofold; namely, (1) “to your reasonable satisfaction” and (2) by a preponderance of the evidence.

If plaintiffs were entitled to an instructed verdict on the whole case — liability as well as damages — it would be immaterial that there was error in the instructions. The trial court or this court could enter the correct judgment in accordance with the right to the directed verdict. We acknowledge there is a question in our minds as to whether under defendant’s own testimony. and ’the admitted facts there is any issue for the jury concerning the liability of the defendant. Certainly there is no issue as to the amount of damages. On the record before us, plaintiffs are entitled to $10,000 or to nothing.

However, plaintiffs did not ask the trial court for a directed verdict at the close of the case. They chose to submit the question of liability to the jury as an issue in Instruction No. 1. And in their briefs in this court they seek to uphold the judgment on the basis that the jury found for them on the liability issue. Plaintiffs have not contended that in any event they are entitled to a directed verdict on the liability issue, and have not briefed the matter for our benefit. Under such circumstances we are reluctant to pass on that question. It may be that on a retrial that the question may arise, and especially if an accurate check of the flow of water in the spring is evidenced.

The judgment as it relates to the counterclaim of defendant was not appealed from and is final.

For the reasons stated, the judgment concerning plaintiffs’ claim is reversed and that cause is remanded for a new trial.

All concur.

      . See, Missouri Building and Loan Ass’n v. National Liberty Ins. Co., 232 Mo.App. 85, 89 S.W.2d 138(2).


author: STEWART, Judge.

text:
    Vernon JONES, d/b/a Jones Transfer Line, Petitioner, v. Henry MEIGS, Judge, Franklin Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.
    George M. Catlett, F. P. Farmer, Frankfort, for petitioner.
    James P. Hanrahan, Frankfort, for respondent.
    H. V. McChesney, Jr., Frankfort, intervening counsel for Webb Transfer Line, Inc.
   STEWART, Judge.

This original proceeding seeks to prohibit the Honorable Henry Meigs, Judge of the Franklin Circuit Court, from assessing against Vernon Jones, d/b/a Jones Transfer Line, petitioner herein, an item of cost arising out of the action of Webb Transfer Line, Inc., et al v. Vernon Jones, d/b/a Jones Transfer Line, et al. (See Ky. 379 S.W.2d 444.)

Petitioner was an unsuccessful litigant in the action he began before the Department of Motor Transportation (herein called “the department”) wherein he sought a regular route common carrier truck certificate to operate between Louisville and Shelbyville, serving all intermediate points.

Webb Transfer Line, Inc., (herein referred to as “Webb”) paid to the department the sum of $1022.32, which was 45^4% of the cost of the transcript expenses incurred by the various protesting motor common carriers in the proceeding instituted by petitioner .before the department. This amount was required to be advanced in accordance with Department of Motor Transportation Regulation 11-04 (J) which reads, in part:

“ * * * The cost of transcribing the evidence and of furnishing an original and one copy of the transcript to the Department shall be borne by the parties to the hearing and shall be prorated between or among them, on the basis of testimony, cross-examination, and statements put in the record by each party. * * * ”

After Webb had prevailed over petitioner, by bringing about a denial of his application for the above-mentioned common carrier truck certificate, the final round of which litigation was in this Court, Webb filed with the Franklin Circuit Court Clerk, to be taxed as a part of the costs, its transcript expenses paid to the department.

It is petitioner’s contention that a recovery of transcript expenses accruing in connection with a proceeding before the department will not lie. It is argued that such expenses in connection with a hearing before that agency, under Regulation 11-04 (J) promulgated by it, shall be prorated between or among the parties, without regard to the outcome of a matter brought before it for determination or whether a particular party prevails or not before it or before any court to which an appeal is taken.

Respondent calls our attention to KRS 281.780 which provides for a right of appeal from a ruling of the department. Subsection 3 thereof reads, in part: '“ * * * Summons shall be issued upon the petition directing the adverse party or parties to file answer within fifteen days after service of summons. The department shall, upon being served with the summons, and within thirty days thereafter, file a copy of the record, duly certified by the commissioner, the cost of such record to he taxed as costs upon appeal. * * * ” (Emphasis added.)

CR 54.04 states: “Except when express provision therefor is made either by statute • or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; * * KRS 453.040(1) (a) has this to say on the subject: “The successful party in an ordinary action shall recover his costs, unless otherwise provided by law.”

Regulation 11-04 of the department required Webb to pay the official reporter of the department $1022.32 for the copies of the transcript of the hearing which were necessary for the department’s use in arriving at its decision in the proceeding.

However, KRS 281.780(3) provides for an appeal and states that the department shall file with the court its complete record, “the cost of such record to be taxed as costs upon appeal.” The court’s review is limited to that record.

Petitioner has shown us no authority other than the regulation which upholds -his assertion that the proration of the cost of the record shall remain unalterable after an appeal from a decision of the department to a court. Obviously, when an appeal is prosecuted KRS 281.780(3), and CR 54.04 and KRS 453.040(1) (a) govern in respect to the payment of all costs incurred. They declare the litigation expense falls on the loser.

It appears to us the regulation is nothing more than a device adopted to insure the official reporter against loss for such labor as is performed in transcribing the evidence taken before the department in a proceeding. An analogy is where a plaintiff is required to prepay a filing fee in circuit court when he files an action. If he wins he recovers his filing fee as part of the court costs.

Wherefore, the writ is denied.


author: PALMORE, Judge.

text:
    H. R. JOHNSON, Appellant, v. Hobart TUCKER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.

      Russell Vanover, Henry D. Stratton, Pikeville, for appellant.
    L. D. May, Pikeville, for appellees.
   PALMORE, Judge.

The appellant, Johnson, sued Hobart and Truman "Tucker, brothers, for assault and battery. At the conclusion of the plaintiff’s evidence the triál court sustained Hobart’s motion for a peremptory. At the close of all the evidence the jury returned a verdict in favor of Truman, the remaining defendant. Johnson appeals, claiming that the trial'court'erred first in letting Hobart out and then in submitting the case under instructions permitting the jury to find Truman not liable.

It was proved that the grand jury had indicted Hobart and Truman jointly for assault and battery and that they entered a plea of guilty and were fined $100 and costs. On the theory that it is an admission against interest, a plea of guilty to a criminal charge is competent evidence in a civil case involving the same occurrence, but it is not conclusive and may be explained. Race v. Chappell, 304 Ky. 788, 202 S.W.2d 626, 628 (1947).

Hobart did not testify. Truman explained that he thought it was better to plead guilty to the criminal charge than to keep running to court about it, so he “just went ahead and paid it.” The evidence bearing directly on the incident of the assault, including Johnson’s own testimony, showed that Hobart did not take part in it. Indeed, there was no proof that he was even on the scene when the fight started, and Johnson did not discover his presence nearby until afterward. Notwithstanding the guilty plea in the criminal case, it is our opinion that on the whole case the evidence was not sufficient to authorize a verdict against him, and he was entitled to the directed verdict.

Truman’s only defense was that Johnson called him a son-of-a-bitch. He admitted the assault. Hence he was liable as a matter of law, and the instructions should have submitted only the question of damages. Virginia Collins Coal Company v. Byrge, Ky., 340 S.W.2d 464, 466 (1960). “Opprobrious words or epithets do not justify an assault, but are competent in evidence in mitigation of punitive damages.” Lambert v. Corbin, 194 Ky. 373, 239 S.W. 453, 455 (1922); Grau v. Forge, 183 Ky. 521, 209 S.W. 369, 3 A.L.R. 642, 647 (1919).

To the extent that it dismisses the complaint against the appellee Hobart Tucker the judgmentds affirmed; insofar as it dismisses the claim against the appellee Truman Tucker it is reversed for a new trial confined to issues pertinent to the assessment of damages.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Boynton MERRILL, Jr., and Marian Merrill, his wife, Appellees.
    Court of Appeals of Kentucky.
    May 1, 1964.
    Rehearing Denied Nov. 20, 1964.

      John B. Breckinridge, Atty. Gen., William L. Lamkin, Jr., Asst. Atty. Gen., F. D. Curry, Atty. for Dept, of Highways, Frankfort, for appellant.
    William L. Sullivan, Dorsey & Sullivan, Henderson, for appellees.
   WADDILL, Commissioner.

Upon appeals to the circuit court from a county court judgment of $276,130.00, Boynton Merrill, Jr. and his wife were awarded $253,280.00 for 47.68 acres of their land taken by the Commonwealth for the construction and relocation of U. S. Highway 41 as a nonaccess bypass around the city of Henderson, the placement of a non-access interchange with U. S. Highway 60, and the rerouting of Kimsey Lane over the bypass, and were awarded $97,588.00 as damages to the remainder of their property for a total of $350,868.00.

The Merrills own and operate a farm located northeast of Henderson, which, prior to this condemnation proceeding, comprised 398 acres. The farm was divided into two tracts which, for convenience, we shall refer to as tract A and tract B. Tract A contained 98 acres situated between the “Y” junction of U. S. 41 and U. S. 60. Tract B contained 300 acres bounded on the northwest side by U. S. 60 (across from tract A) and on the southwest side by Kimsey Lane.

As a result of this condemnation tract A now contains a one-acre tract west of the bypass and a 75-acre tract east of the bypass and north of U. S. 60. Tract B now contains an 18-acre tract west of the bypass, a one-acre tract south' of the bypass and west of'Kimsey Lane and a 254-acre tract east of the bypass. (These acreages have been rounded to the nearest whole acre.)

The Commonwealth contends the trial judge abused his discretion in permitting the use of certain exhibits prepared by Boynton Merrill. We do not agree. A chart showing the computation used by him in determining the difference between the value of his farm before and after the taking was shown to the jury while he was testifying. This chart is analogous to a blackboard demonstration and its use is preferable since it may be preserved for review upon appeal. Meglemry v. Bruner, Ky., 344 S.W.2d 808.

Merrill also used a map upon which different areas of his farm were shown along with the values which he assigned to each in his testimony. The Commonwealth’s objection is directed to the designation of these areas, which it calls “lots” and “subdivisions,” and to the notations of value. Since it was shown that this farm has residential and commercial developments on three sides and was reasonably adaptable for similar uses, it was competent for Merrill to premise the before and after valuations of his land on the value of each area. Commonwealth, Dept. of Highways v. Treadway, Ky., 346 S.W.2d 296. This designation of general areas does not show a subdividing of the property. We believe, as did the trial judge, that this map was of assistance to the jury in understanding how Merrill valued his land prior to the condemnation.

Further objection is made to the use of 38 colored 35 mm transparencies or slides depicting the land taken, aerial views of the farm and commercial and residential improvements on land ¿djacent to" the farm. The condemnation took place in the spring and the slides were made in the following summer. ' The photographer testified that, except for the seasonal foliage change, the slides fairly represented the condition of the property as it was on the date of the taking. The jury viewed the land during the trial. Under the circumstances shown we find this contention to be without merit. ■

It is contended that the trial judge erred in permitting witnesses for the Merrills to testify to prices paid in 3 comparable sales which occurred 2 to 4 months after the taking of the Merrills’ property. In Commonwealth v. Begley, 272 Ky. 289, 114 S.W.2d 127, we approved evidence of “sales of land of like character, similarly situated and at a point of time not too remote.” The Commonwealth did not produce any evidence of a prejudicial change in property valuation within four months after the taking and therefore the trial judge did not abuse his discretion in allowing the witnesses to testify concerning these particular sales. Stewart v. Commonwealth, Dept. of Highways, Ky., 337 S.W.2d 880.

It is contended that the trial judge erred in not permitting Merrill to be questioned about any valuations placed on his property for tax purposes. We have held that evidence of the valuation which a landowner places on his property for tax purposes is a proper factor to be considered by the jury in determining fair compensation. Commonwealth, Dept. of Highways v. Lanter, Ky., 364 S.W.2d 652. Merrill testified on avowal that he had not listed his property for tax purposes. Since no exhibits or witnesses were offered to contradict this statement the trial court properly refused to allow further questioning of Merrill on this subject.

There is no merit to the Commonwealth’s contention that the Merrills are not entitled to any damages because they accepted the farm knowing public highways might someday be built across it. Such a rule would place the Commonwealth in the enviable but unwarranted position of taking, without compensation to anyon'e,-any-prop-erty transferred aftei the dbn’ee -or grantee was aware of pending.pub.Iic,improvements.

It is argued that both the awards for the land taken and for the damages to the remaining property are excessive because they are not supported by competent evidence. Looking first to the $253,280.00 awarded for the land taken, the estimates of the value of the land taken were $95,500.-00 and $118,047.00 for the Commonwealth and $339,040.00 to $574,113.00 for the Mer-rills. This variance is directly attributable to the method of appraisal. The Commonwealth’s witnesses used a per acre valuation although the evidence established that land along the major highways near Henderson usually sold for commercial purposes on a front foot basis. The Merrills’ witnesses valued the land adjacent to the highways on a front foofbasis and the remainder on-a per acre basis. In view of the-fact that it was shown -the Merrills’ land was' saleable for commercial, residential arid farm uses, the method of appraisál' employed' by these witnesses was proper-and their-: valuations convincingly support the jury’s award for the$arid thkeri-.'

-The highest resulting damages ap-pfáis’ed-.by the Commonwealth’s witnesses', were $54,000.00, while for the Merrills they ranged; a-s high’as $249,750.00. Although three of ’the Merrills’ witnesses gave testimony.that'amply supports the resulting damages awarded, the Commonwealth contends that damages attributed to'thé smaller segment reiriaining in tract A are based on an incompetent factor and are unbelievable. It was shown that prior to this taking about 24,000 cars a day passed the portion of tract A where U. S. 41 and U. S. 60 converged and that this area was adjacent to Henderson. The evidence shows that this area was extremely desirable for commercial use. While part of it was taken by the Commonwealth, a triangular segment about 600 feet along U. S. 41, extending back at its base 143 feet, was not condemned. This 600 feet of land in the before valuations by one of the Merrills’ witnesses was valued at $1-50.00 per front foot for a depth of 200 feet (the usual depth of commercial land in that area) or $90,000.00, but after the taking this land has an average depth of only 72 feet. Since 72/200 of the original land worth $90,000.00 remains, only $32,400.00 is used for comparison purposes. This triangle of remaining land was shown to be worthless for any normal commercial use so in the computation of after value it was valued at $30.00 per front foot which would be $6,480.00 or a resulting damage of $25,-920.00, an amount which appears to be reasonable.

The section of U. S. 41 on which this land fronts is being closed at each end, but the Commonwealth’s witnesses testified that it would build a cul-de-sac at one end and would connect it-to nearby city streets at the other end so as not to. landlock it. The Commonwealth contends that .the trial judge erred in overruling its objection to Merrill’s testimony that he considered the closed road iii arriving at his damages. Merrill’s- erroneous consideration of the road being closed was not prejudiciál since-his :• estimate of " approximately $26,600.00 damage to this segment is justified solely by’ the fact‘that its 'commercial worth ’was destroyed.-

The balance of the damages are supported by evidence relating primarily to the devaluation of the remaining land due to its division into 5 tracts brought about by the condemnation and by the loss of access to Highways U. S. 41 and U. S. 60. Inasmuch as the rights of ingress and egress were condemned in this action, there is no objection to testimony concerning the damages attributable to loss of access. Commonwealth, Dept, of Highways v. Carlisle, Ky., 363 S.W.2d 104. We conclude there was sufficient competent evidence to support the award of resulting damage. [We observe that this case was tried before the effective date of our rule against separation of resulting and taking damages set forth in Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.-]

The Commonwealth further contends that the trial judge erred in not instructing that the value of the property before the taking was the value when it became generally known the improvements would be made. The answer to this contention is that the Commonwealth offered instructions which specifically required the jury to find damages as the difference between the reasonable market value of the property immediately before and after the condemnation on March 28, 1960. The instructions that were given were substantially the same as those offered by the Commonwealth. Under this state of the record there is no basis to support the claim that the instructions were erroneous.

Finally the Commonwealth contends that the verdict is so excessive that it appears to have been given under the influence of passion or prejudice in disregard of the evidence. It is urged that Merrill was not qualified to give an opinion as to the value of his property and that all of the Merrills’ expert witnesses failed to give sufficient basis for their opinions. That Merrill has closely observed comparable sales over a period of years and made some study of appraisal methods removes any doubt as to his qualifications. See Commonwealth, Dept. of Highways v. Fister, Ky., .373 S.W.2d 720. The other four witnesses testifying to the value of the Merrill farm and the damages to it were actively engaged in the real estate business, were acquainted with the property taken, and were familiar with land values in that area. Needless to say their qualifications satisfied the criterion set out in Commonwealth, Dept, of Highways v. Taylor, Ky., 368 S.W.2d 732. Being satisfied with the competency of this testimony we need only determine the sufficiency of its probative value. Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472. After testifying to before and after values of the Merrills’ farm, these witnesses gave estimates of total damages ranging from $384,-800.00 to $730,727.00 based upon their knowledge of this land, comparable sales in the area and the information they had concerning its present saleability.

The Commonwealth condemned approximately 5,500 feet.of valuáble frontage on two heavily traveled .highways 'to build its nonaccess bypass and interchange as well as some frontage on Kimsey Lane. In view of the evidence of the value of similar nearby land and considering that the land taken is on the very 'edge of Henderson and that the commercial desirability of the remaining land is now practically destroyed and its residential adaptability is considerably lessened, we cannot say the award was given as a result of passion or prejudice or that it is excessive as a matter of law.

The judgment is affirmed.

PALMORE, J., not sitting.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Leon O. HIGDON, Administrator of the Estate of Kenneth Cissell, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Richard H. Peek, Paducah, for appellant.
    John E. Albert, Herbert Schultzman, Terrell, Schultzman & Hardy, Paducah, for appellee.
   WILLIAMS, Judge.

Kenneth Cissell was drowned when the car in which he was a passenger plunged into the Tennessee River. An award of $5,000 by the Board of Claims to the administrator was allowed against the appellant, Commonwealth of Kentucky, Department of Highways. The award was affirmed by the McCracken Circuit Court, and the Commonwealth has appealed.

The driver of the automobile in which Cissell was a passenger mistakenly turned off the main road onto a minor road, believing it led to Paducah. In reality, 2,025 feet from the intersection, the road came to an end at the edge of the Tennessee River. At a point three feet from the edge of the river and located at the termination of the pavement, was a “Road Closed” sign. Standing to the left of this sign was a “scotch-light” striped sign. Three hundred and fifty feet back toward the main highway were two “Caution” signs, one on either side of the road, and 725 feet back and across a small wooden bridge was a “Slow” sign. Approaching from the direction of the main road a driver would encounter the “Slow” sign, then cross a small bridge, to be confronted by the two “Caution” signs, 350 feet from which the road terminated at the river and at which place the “Road Closed” sign had been erected. After passing the “Caution” signs the road curved slightly to the driver’s left, which caused the “Road Closed” sign to be virtually obscured until it was in close proximity.

The driver of the car testified he was driving 40 to 45 miles per hour, that he did not see any signs along the way, that he swerved to the left to avoid what appeared to be a mound of earth at the river’s edge, that the car slid onto some gravel and down into the river, and that he did not know the river was there until he was in it. There was some evidence that the signs were hard to see due to the fact that some vegetation had grown up about them.

The issue is, whether the State exercised ordinary care to safeguard the public from the danger existing at the end of this road. The finding of the Board of Claims, if supported by substantial evidence, is conclusive. Commonwealth, Dept. of Highways, v. General & Excess Ins. Co., Ky., 355 S.W.2d 695 (1962).

The duty of the Commonwealth is to exercise ordinary care in keeping its highways in a reasonably safe condition for public travel. That duty may be performed by remedying, warning, or guarding against, the danger. Signs may give adequate warning of a hazardous condition in a highway when their message sufficiently relates to the danger and their location is at a distance which permits the public to avoid such danger. Commonwealth, Department of Highways, v. Begley, Ky., 376 S.W.2d 295 (1964).

The facts here adequately support the finding of the Board of Claims that the signs did not reasonably warn the traveling public of the road’s end. There was no notice that the road terminated at the river’s edge until the “Road Closed” sign was reached, which admittedly was only three feet from the water. The other signs did not give warning commensurate with the danger ahead. The “Road Closed” sign warned of the danger too late to give adequate notice to the public. The termination of a public road at the edge of a river is a danger which requires more warning than the signs here afforded. •

The judgment is affirmed.


text:
    Marshall LINDSEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    Louis V. Mangrum, Mayfield, for appellant.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., L. M. Tipton Reed, Mayfield, for appellee.

      . In which an acquittal on the charge of grand larceny was held to have barred subsequent conviction of assault with intent to rob, both charges having been based on the same occurrence.

   PALMORE, Judge.

In his trial on a charge of feloniously receiving stolen property (KRS 433.290) the appellant, Marshall Lindsey, took the witness stand in his own defense and testified that it was he who had stolen the property. The Commonwealth respondéd to this unusual stratagem by moving for and obtaining a dismissal of the indictment, after which Lindsey was indicted and convicted on two counts charging felonious theft (KRS 433.250) of the same property.

The defense of former jeopardy was timely asserted and preserved, and it presents the only question before us on this appeal.

Receiving stolen property is an offense separate and distinct from that of stealing the same property, and under ordinary circumstances it would not be possible for a person to be convicted of both, though he may be indicted and tried on alternative counts. Mercer v. Commonwealth, Ky., 330 S.W.2d 734, 736 (1960). By the same token, an acquittal on one of these two charges is: entirely consistent with a conviction on the other. Even, therefore, had Lindsey been acquitted in the first proceeding, the subsequent indictment and conviction for theft would have been proper.

We are unable to agree with the proposition that the theft itself and the receiving of stolen property were parts of the “same criminal act, transaction, or omission” under the test stated in Arnett v. Commonwealth, 270 Ky. 335, 109 S.W.2d 795 (1937). According to the evidence, Lindsey sold certain hogs and goats to one Johnson. They had been stolen from another. Lindsey either had stolen them himself or had received them from someone else. He could not have done both. Therefore, it was not possible for the stealing by Lindsey and the receiving by Lindsey to have been parts of one and the same transaction, because one “part” or the other simply did not exist.

The judgment is affirmed.