author: HUNTER, Judge.

text:
    John W. SMITH, Plaintiff-Respondent, v. Howard J. BERGMANN, Defendant-Appellant.
    No. 23903.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.
    Paul H. Niewald, Gordon, Adams, Nie-wald & Risjord, Kansas City, for appellant.
    Barkley M. Brock, Julius F. Wall, Poa-gue, Brock & Wall, Clinton, for respondent.
   HUNTER, Judge.

Defendant, Howard J. Bergmann, appeals from a judgment of the Circuit Court of Henry County, for plaintiff, John W. Smith, in the sum of $7,110.00. The suit was a result of an automobile collision on December 28, 1959, at the intersection of 10th and Washington Streets in Kansas City, Missouri.

Plaintiff was driving a Buick automobile north on Washington Street about 8:30 a. m. ■on a wet pavement resulting from rain and “spitting snow”. Defendant was driving his station wagon automobile at about 15 to 20 miles per hour and was following behind plaintiff about 7 to 10 yards. As plaintiff’s car was almost to the intersection of 10th and Washington Streets, the traffic control light changed to yellow and he applied his brakes and came to a stop near the south crosswalk. His car was then struck in the rear by defendant’s oncoming car, allegedly causing a whiplash injury to his neck.

As a result of the trial, on Count I the jury awarded plaintiff $7,000.00 damages for personal injuries and on Count II, for damage to his Buick automobile, the jury awarded plaintiff $110.00. In appealing, defendant has limited his contentions of error to two items. The first is that the trial court erred in permitting plaintiff to read from a document not entered into evidence and not qualified for use in refreshing recollection.

Plaintiff was asked by his counsel what period of time he was off his job completely in March, 1960 and thereafter. Plaintiff wished to refer to a paper he stated he had prepared the night before, to refresh his recollection. Defendant objected that it was “prepared just last night, and its not a document to refresh his recollection”. The objection was overruled and plaintiff answered, “Well, I was off from March the 3rd until March the 7th, and then again I think I was off from March the 10th to June the 19th, I believe it was. Q. Do you know how many days you were off altogether there in those two or three months? A. I believe 41 days.” On cross-examination defendant’s counsel elicited from plaintiff, who apparently testified from memory alone, that he missed some six weeks’ work from March until June — “I was off in March, and then I was off again from May to June. * * * Q. And during most of March, except for five or six or seven days, you received full pay? A. Yes, something like that.”

Mr. Les L. Carter, plaintiff’s employer during the time in question, testified without objection that plaintiff was off the payroll, according to the payroll reports, from March the 3rd to March the 7th, March the 10th to March the 16th and from May the 4th through June the 19th. And upon cross-examination defendant’s counsel asked, “Q. According to your payroll records there, from the document that you have refreshed your memory with, Mr. Carter, the only days that he missed in 1960 were March 3rd to March the 7th, 10th to 16th, and May 4th to June 19th? A. According to the payroll, that’s right.”

It is difficult to tell from the record whether plaintiff actually glanced at the paper he had prepared the night before prior to answering the mentioned question. It is clear, however, that his answer purported to be from his memory and not merely a reading by him from the document.

While there is some conflict in the authorities the general rule as to when a writing or memorandum can be used by a witness to refresh his memory by reviving a present recollection from which he testifies is set out in summary form in 58 Am. Jur., Witnesses, Sections 584-585, pages 326 ff. as: “The use of a memorandum to refresh memory is always permitted where the witness can, after consulting it, testify to the facts to which it relates from an independent recollection.” See, Annotations, 125 A.L.R. 62, 82 A.L.R.2d 496, 511; 98 C.J.S. Witnesses § 358b, page 85. In State v. Bradley, Mo., 234 S.W.2d 556, 561, our Supreme Court stated the rule thusly, “If a reference to a memorandum ‘sparks’ a present recollection so that a witness can testify from independent resensing or re-visualization of the event, the time when the memorandum was made is of little moment, because the probative force of the testimony of the witness is his independent present recollection of the event. On the other hand, if, having referred to a memorandum, the present recollection of the witness is not stimulated, the witness must necessarily rely upon his past recollection as recorded in the memorandum; and in such a situation the correctness and trustworthiness of the memorandum are of importance, because the faith reposed in the verity of the memorandum affords the probative force of the testimony of the witness.” And see, Thos. Cusack Co. v. Lubrite Refining Co., Mo.App., 261 S.W. 727. In view of the above stated rule, it is clear that the trial court did not err in permitting plaintiff to refer to the mentioned document.

There is an additional reason why the above described incident was not a reversibly erroneous matter. The same facts as were elicited from plaintiff were clearly established by proper evidence given without objection by Mr. Les L. Carter, plaintiff’s employer. As stated in SA C.J.S. Appeal and Error § 1735, page 1028, “If the same facts are afterward substantially established by proper evidence of the same or similar effect, the admission of improper evidence is harmless; and this is especially so where the later evidence is admissed without contradiction or objection.” And see 5 Am.Jur.2d,' Appeal and Error, Sections 800 and 806, pages 241, 248.

Defendant’s other contention of error is that the verdict for personal injuries is excessive. Where, as here, the trial court has overruled defendant’s motion for a new trial, in examining the contention of exces-siveness of the award our duty is to state and consider the evidence of the nature and extent of plaintiff’s injury in the light most favorable to plaintiff.

Plaintiff was an electrical lineman by trade, having done this type of work for' more than thirty-three years. His work customarily involved climbing up and working on poles such as are used to support and hold up electrical wiring. On the day of the accident he was working for Carter Construction Company and was driving to his-work in Leavenworth, Kansas when his car was struck from the rear, as above related.

Plaintiff’s Buick was knocked some ten or. twelve feet out into the intersection by the impact. Plaintiff’s “neck flew back and my neck did snap, I could feel it.” He told defendant at the scene that his neck hurt. When he attempted to drive from the scene' to Leavenworth, Kansas, where his job was he became dizzy and felt “funny”, and had to pull off the highway and sit for awhile. On his arrival at the job site he just told his' men what to do and returned immediately to Kansas City to see a doctor.

About 3:30 p. m. of the day of the accident plaintiff saw Dr. Powell, an osteopathic ■ physician, who examined him, x-rayed his neck and treated him. He did not go back' to work for three days. His neck was stiff and sore and continued to “bother” him.He had dizzy spells. Although he couldn’t’ work full time and missed some whole days in January and February, 1960, the two months following the accident, his employer paid him in full. He was unable to climb’ poles as that made him dizzy. When he would look up that also made him dizzy. Finally, he just remained off work completely from March 3-7, and from March 10-June 19, 1960, for an approximate total of 41 days, unable to do any kind of work., Since his return to work he has tried to climb poles but is physically unable to do so. He continues to suffer dizziness and loss of balance. He can’t turn his head “clear around sideways any more without it hurting me, and I can’t turn it to the le'ft hardly at all.” His neck has remained stiff. This causes trouble in trying to sleep; he has to sleep with his head between two pillows' and remain flat on his back. Hé continues to have headaches. Even looking up to watch other men at work on the poles makes him dizzy and causes his neck to “bother” him.

Dr. Powell, who practices in Clinton, Missouri, testified he had been plaintiff’s family doctor for about fifteen years. When plaintiff came to him the day of the accident plaintiff was experiencing extreme pain on any motion of the neck or head and This neck was very tender on examination. Relative to his neck injury Dr. Powell treated plaintiff a total of 56 times from Decem'ber 28, 1959 to March 9, 1960. The treat-ments consisted mostly of physiotherapy to •.relax the neck.

'’According to Dr. Powell, plaintiff con- . tinues to have inability to look up and to . turn his head from side to side and continues to suffer dizziness persistent with the motion of his neck and especially when . he is looking up. Since plaintiff was in good . health, did not have headaches or dizziness /■ before this accident, and has continued to ' have them since, Dr. Powell attributes them to the accident. He testified that plaintiff r will not be able to do work that requires him to climb poles and look up or tilt his head backwards, as long as it continues to create dizziness and cause headaches and pain. Dr. Powell was unable to say when plaintiff will recover from his conditions resulting from the accident. He hasn’t responded much in the past year and the neck condition may be permanent.

Plaintiff’s normal work week at the time of the accident consisted of an eight hour day for five days for a total of forty hours. His rate of pay was $4.45 per hour. He testified he lost forty-one working days as a result of the accident, for a total wage loss of approximately $1,460.00. His medical bills from Dr. Powell for treatment of his injury totalled $170.50.

While we think the verdict of $7,000 for personal injuries is liberal, in view of the ■evidence we have reviewed we are unwilling to say that it is so liberal as to shock the judicial conscience or so far out of line with approved awards in somewhat comparable cases or beyond the bounds of reason as to require a remittitur, as defendant requests. In arriving at this conclusion we first carefully reviewed all the cases defendant cited on the subject, noting that each differed in substantial respects from the one before us. As stated in Hunter v. St. Louis Southwestern Railway Company, Mo., 315 S.W.2d 689, 697, “There is no precise method for determining the maximum award which the evidence in this case will support. Each case must be considered upon its own particular facts. Due regard should be given to the purchasing power of the dollar, to the rule of reasonable uniformity of awards for similar injuries and to the fact that the jury and the trial judge were in a better position than this court to measure an award of reasonable compensation, as well as to the fact that the trial court has approved the verdict in question.” We have given due regard to these factors and as a result are persuaded that the trial court did not err in refusing to grant a new trial for ex-cessiveness of the verdict.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: BROADDUS, Presiding Judge.

license: Public Domain

text:
    George ECONOMOPOULOS and Lydia Economopoulos, Piaintiffs-Respondents, v. Fred CURLS d/b/a Curls Realty Company, Defendant-Appellant.
    No. 23905.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Robert A. Sniezek, Selden M. Jones, Jr., Sniezek & Jones, Kansas City, for appellant.
    Robert H. Kendrick, Paul E. Vardeman, Johnson, Lucas, Bush & Vardeman, Kansas City, for respondents.
   BROADDUS, Presiding Judge.

This is an action based upon fraud and deceit. Plaintiffs recovered a verdict and judgment for $3250 actual damages, and for $3000 punitive damages. Defendant has appealed.

Inasmuch as defendant makes no contention that plaintiffs failed to make a submis-sible case there is no need to set forth the evidence in detail.

Defendant is a real estate broker. In the year 1957 plaintiffs were the owners of a tract of land in Kansas City, Missouri, known as 1223 Prospect. In August 1957, the plaintiffs engaged the Allen Pfost Realty Company to sell the real estate in question. The Pfost Company was unable to find a purchaser, whereupon plaintiffs employed’ defendant to find a buyer. Defendant waste be paid a commission of 5% of the gross sales price.

On August 22, 1957, defendant informed plaintiffs that he had a purchaser for their property who was willing to pay the sum of $7000 therefor. The truth is he had a purchaser who was willing to pay the sum of $9900, which fact was not disclosed to plaintiffs.

Plaintiffs’ petition prayed for actual damages in the sum of $3250, being the difference between the price for which the property was actually sold ($9900), and that represented to plaintiffs as being the selling price ($7000), plus the real estate commission of $350 paid by plaintiffs to defendant. Plaintiffs also sought punitive damages.

Defendant’s present attorneys did not participate in the trial of the case below.

Defendant’s first contention is that the court erred “in giving plaintiffs’ Instructions Nos. 1, 2, 3 and 4 because (A) The ■Instructions contained erroneous statements of the law, prejudicial abstract statements of the law, and failed to require the jury to make findings of all the essential fact issues necessary to establish plaintiffs’ right to a judgment.”

The contention is so general that it is extremely doubtful that it preserves and presents anything for our review. Anderson v. Welty, Mo.App., 334 S.W.2d 132, 139; Weekly v. Wallace, Mo.App., 314 S.W.2d 256, 258.

However that may be, defendant in his argument does stress his contention that .the first paragraph of Instruction No. 1 is a prejudicial abstract statement of the law. It reads as follows:

“The Court instructs the jury that an agent is held to the most perfect faith in his dealings with his principal, and if he acts adversely to his employer in any part of the transaction and omits to disclose any interest which would naturally influence his conduct in dealing with the subject of the employment it amounts to fraud on the part of the agent.”

This identical instruction was before our Supreme Court in the case of Leimkuehler v. Wessendorf, 323 Mo. 64, 18 S.W.2d 445, 453, 454, where it was held not to be reversible error to give it.

Instruction No. 2 related to the measure of plaintiffs’ actual damages. It authorized a finding for plaintiffs in an amount, not to exceed the sum of $3250. It was fully supported by the evidence and, in our opinion, free from error.

Instruction No. 3 advised the jury that in the event they found the issues in favor of plaintiffs and against defendant under Instruction No. 1, and if they further found from the evidence that the defendant acted wilfully, maliciously and intentionally to deceive the plaintiffs, if so, then, in addition to other damages, if any, allowed plaintiffs under Instruction No. 2, they could assess in favor of plaintiffs such further sum as exemplary or punitive damages as they believed ought to be assessed against defendant by way of punishment for the act complained of * * *. The Instruction is in a form often approved. And certainly, under the evidence, the trial court committed no error in giving it.

Instruction No. 4, in effect, told the jury that although they found that plaintiffs initially employed the Allen Pfost Realty Company as their agent to sell the property, that if they further found from the evidence that the Pfost Realty Company referred plaintiffs to defendant, and that thereafter defendant undertook to act as plaintiffs’ agent for the sale of their property, and that plaintiffs consented thereto, that defendant then became the agent of the plaintiffs for the purpose of selling their property, and it was no defense to the action that plaintiffs’ original agency contract was with the Allen Pfost Realty Company. Defendant asserts that the instruction refers to “irrelevant and immaterial findings” and “could only be a cause of confusion by the jury.” We fail to find any real merit in the defendant’s contention.

Under sub-division “B” of Point 1, defendant contends that: “The instructions submitting plaintiffs’ case were not in ac.cord with the theory of their petition.” No specific objections to the instructions 'were made at the trial before submission to ■the jury, and the motion for new trial -makes no mention of the complaint defendant now asserts. Under Civil Rules 70.02 and 79.03, V.A.M.R. the contention is not preserved for appellant review.

Defendant’s remaining point is that the court erred in refusing to give his offered Instruction B. The motion for new trial makes no reference to this instruction. Thus the point is not properly before -us.

Finding no error in the transcript prejudicial to defendant, the judgment is affirmed.

All concur, including DEW, Special Commissioner.


text:
    William Perry SHEPHERD, Appellant, v. DEPARTMENT OF REVENUE of the State of Missouri et al., Respondents.
    No. 23987.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      O. E. Brown, Sedalia, for appellant.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondents.
   HUNTER, Judge.

The director of revenue, charged with the duty of revoking vehicle operating privileges under the “point system” (See Section 302.304, V.A.M.S.) revoked plaintiff-appellant’s chauffeur’s license for a twelve month period.

Plaintiff, William Perry Shepherd, filed a petition for review in the circuit court of the county of his residence, Pettis County, under Section 536.100 et seq., of the Administrative Review Act, Chapter 536, as provided for by Section 302.311, joining as defendants “Department of Revenue of the State of Missouri, Safety Responsibility Unit, P.O. Box 506, Jefferson City, Missouri, H. J. Turnbull, Supervisor, and A. C. Abbott”. The cause was tried by the circuit judge and judgment was rendered affirming the order of the director of revenue.. Plaintiff appealed to the Supreme Court, and that court, after noting there was no constitutional question raised, or other matter that gave that court jurisdiction, transferred the appeal to this court. In so ruling the Supreme Court said, “Examining the matter of jurisdiction sua sponte, as it is our duty to do, we find no ground for the exercise of jurisdiction by this Court. Neither the Department of Revenue of the State of Missouri nor the safety responsibility unit of that department, is a ‘state officer’ within the meaning of the constitutional provision. Defendant H. J. Turnbull is named in the caption as supervisor of the safety responsibility unit, and defendant A. C. Abbott is sued in his individual capacity. The Missouri Blue Book 1961-1962 lists H. J. Turnbull as supervisor of driver’s license registration, not supervisor of safety responsibility. According to that publication A. C. Abbott was supervisor of the safety responsibility unit. The supervisors of these divisions of the department of revenue are not state officers”. See, Shepherd v. Department of Revenue of the State of Missouri, Mo., 370 S.W.2d 381.

Chapter 302, RSMo 1959, controls the requirement of, the issuance of and the suspension and revocation of drivers and chauffeurs licenses. A study of that chapter reveals that it is the Director of Revenue, in his official capacity as a state officer, who has the ultimate duty and responsibility for the issuance, suspension and revocation of such licenses. The statute mentions no other person or agency in this connection, and the authority granted by the statute is specifically to him in his official capacity and as a state officer.

Illustrative of the above statement are: Section 302.120 “1. The director of revenue shall file every application for a license * * Section 302.171 “Application for a chauffeur’s license or a motor vehicle operator’s license shall be made upon an approved form furnished by the director”. Section 302.177 “1. To all applicants for chauffeur’s license who submit a satisfactory application and meet the requirements set forth in this chapter, the director shall issue or renew a chauffeur’s license * * Section 302.225 “2. Whenever any person is convicted of any offense or series of offenses for which this chapter makes mandatory the suspension or revocation of the-operator’s or chauffeur’s license of such person by the director * * Section 302.281 “The director shall suspend the license” for an unsatisfied judgment. Section 302.291 “The director” may require examination to determine if one is incompetent or unqualified. Section 302.301 “The director” may impose restrictions on licenses. Section 302.302 “The director of' revenue shall put into effect a point system' for the suspension and revocation of chauffeurs’ and operators’ licenses”. Section 302.304 “The director shall” suspend or revoke for accumulated points in excess of the allowed minimum number. Section 302.309 “The director of revenue” may return licenses at end of period of suspension or revocation.

While Section 302.010 “Definitions” provides “(5) ‘Director’, the director of revenue acting directly or through his authorized officers and agents” it is clear that this merely recognizes that he may perform certain of his work by authorized employees, who in final concept act for and on his behalf.

Of particular interest are the provisions of Section 302.311: “In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence in the manner provided by chapter 536, RSMo., for the review of administrative decisions at any time within thirty days after notice that a license is denied or witheld or that a license is suspended or revoked. Upon such appeal the cause shall be heard de novo and the circuit court may order the director to grant such license, sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license. Appeals from the judgment of the circuit court may be taken as in civil cases. The prosecuting attorney of the county where such appeal is taken, shall appear in behalf of the director, and prosecute or defend, as the case may require”.

In the case before us plaintiff-appellant had his chauffeur’s license revoked by the director of revenue who gave as his reason, “Twelve points assessed against your driving record, Section 302.304, paragraph 3”. Plaintiff appealed the director’s order by filing a timely petition for review as provided by Section 302.311 in which he alleged “that the action of the Department of Revenue is capricious and arbitrary and unreasonable and made without authority of law and without any hearing on the matter”. Plaintiff also pleaded personal hardship conditions, presumably in view of Section 302.309(3). He prayed the court to inquire into the justice of his claims and to enjoin respondent to forego further action “in said matter” until further order of the court.

At the trial in the circuit court plaintiff endeavored to broaden his contentions somewhat by attempting to show by evidence that the director erred in accumlating twelve points against him because the municipal court traffic conviction judgments used to reach that total were based on charges commenced by inadequate infor-mations that failed to sufficiently specify the charge or to name the particular ordinance by number. He also adduced some evidence on the personal hardship allegation.

Referring again to Chapter 302, we believe it is clear that the director of revenue is a necessary party to any appeal authorized by Section 302.311 taken from a driver’s or chauffeur’s license suspension or revocation order of the director of revenue made under authority of color of the powers granted him in Chapter 302.

As stated in 67 C.J.S. Parties .§ 1(2), page 890, the term necessary party has been variously defined as “persons who are so vitally interested in the object or subject matter of the controversy that a valid judgment or decree, adjudicating the subject matter, cannot be effectively rendered without their presence as parties; persons who have such an interest in the controversy that a final judgment or decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience; persons who have or claim material interests in the subject matter, which interests will be directly affected by an adjudication of the controversy. The term ‘necessary party’ has also been used to designate the real party in interest, under a code provision that the action must be prosecuted by such a party”. And, see Supreme Court Rule 52.04, V.A.M.R.; 39 Am.Jur., Parties, Section 5, pages 852-854; Buford v. Lucy, Mo., 328 S.W.2d 14(6).

The statutory appeal from the director of revenue’s order, authorized by Section 302.311, provides a de novo trial. A judgment of the nature apparently sought here, if effective, would of necessity have to operate on him and directly affect him in the discharge of his duties as director of revenue. It is his official order that is to be reviewed de novo and to be sustained, set aside or modified. He may be ordered to grant the license requested (Section 302.-311). It is vital that he in his official capacity be a named party defendant.

The general rule concerning the omission from a case of a necessary party is stated in 3 Am.Jur., Appeal and Error, Section 311, page 70, “It is well settled that the objection cannot be raised for the first time on appeal or writ of error, except in the case of the nonjoinder of indispensable or necessary parties, in which latter case the objection may ordinarily be raised for the first time in the appellate court, unless the complaining party is himself responsible for such defect”. And, see, 39 Am.Jur., Parties, Section 5, pages 852-854. In Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973, 136 A.L.R. 177, it was held that the absence of a necessary party to an action is fundamental and jurisdictional to such an extent it must be considered by an appellate court. We think this is particularly true where the necessary party is a state officer given by statute the ultimate responsibility for the licensing order at issue, and whose presence or lack of presence as a party defendant determines appellate jurisdiction.

Because of the absence of a necessary party to this proceeding, the director of revenue, this appeal is dismissed.

All concur. -

      . All section and chapter citations refer to RSMo 1959, and V.A.M.S.


author: CROSS, Judge.

text:
    Gerald K. FIELDS, Respondent, v. KANSAS CITY, Missouri, a municipal corporation, Appellant.
    No. 23878.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Herbert C. Hoffman, City Counselor, Robert A. Meyers, Associate City Counselor, Timothy D. O’Leary, Asst. City Counselor, Kansas City, for appellant.
    Robert L. Robertson, Kansas City, Marvin Pollard, Ludlow, Walter A. Raymond and Raymond, West & Cochrane, Kansas City, for respondent.
   CROSS, Judge.

The defendant city appeals from a judgment entered on a jury verdict awarding plaintiff damages in the sum of $14,000.00 for personal injuries sustained when he fell into an uncovered sewer manhole in a public alley.

Plaintiff resides in Ludlow, Missouri, and is a construction worker. As such, his particular duties have been the operation of a crane or bulldozer. He testified that on September 5, 1956, he was working on the Sixth Street Trafficway then under construction in Kansas City. On the evening of that day, after working overtime, he went to his apartment on West Thirteenth Street. He “took a shower and cleaned up and made a telephone call” to his brother-in-law, Harold Richey, at Lud-low. Plaintiff informed Richey, who was then out of work, that he might get a job with plaintiff’s employer. To that end it was arranged that the two men meet at the town of Polo later that night.

Thereafter plaintiff went to the 111 Club,a tavern located on the south side of Thirteenth Street about midway between Walnut Street and Grand Avenue. He stated that some of his friends and co-workers were patrons there and that he- thought he could pick- up one of them to ride with him to Polo for company. In proceeding to the club plaintiff drove his car east on Thirteenth Street, turned south into the alley immediately next to the tavern, and drove southward in the alley about 80 feet to a parking lot which was located immediately next to and east of the alley. After parking his car in a space close to the alley, plaintiff walked north back up the alley and .went inside the club. It was then about 8:15 o’clock and still daylight. While in the club, plaintiff ate two sandwiches and drank two vodka Collinses. None of the men he was looking for came in the place, and shortly after 10:00 o’clock he left alone to get his car and drive to Polo. It had then become dark.

During the time plaintiff was in the tavern employees of the city had removed the cover of a manhole which was located in the center of the alley and about 20 feet south of the sidewalk, in order to flush the sewer with water — an operation directed by the Chief of the Fire Prevention Department of the city for the purpose of dissipating gas vapors which were present in the area. After one flusher truck tank of water had been put into the sewer, the driver drove away to refill his truck for further flushing of the •sewer, but upon his departure he left the manhole uncovered. Such was its condition when plaintiff went to get his car. There were no warning lights in the alley, no barricades around the hole and no employee was posted to warn pedestrians that .the hole was open.

After leaving the tavern plaintiff walked •east to the alley, and south along it until he reached the location of the manhole. He testified that he couldn’t see the manhole and fell into it. He stated, “I fell in practically up to my waist, and as I fell, I caught myself with my arms, and it gave me a jerk and twisted my back, and I thought my knee was broke — or my leg —at the time”. After receiving the fall plaintiff drove to Polo to see Richey in accordance with the telephone arrangement. By that time Richey had left Polo and plaintiff drove on to Ludlow, where he found Richey. Plaintiff returned to Kansas •City that night as a passenger in his automobile. Richey did the driving, at plaintiff’s request, because his leg and back were causing him distress. On the following day, September 6, 1956, plaintiff went to the hospital for treatment of his injuries, the nature of which will be noted hereinafter.

It is undisputed that the sidewalk along Thirteenth Street to Grand Avenue and thence south on Grand Avenue to the front entrance of the parking lot was well lighted and that the way along such route was clearly visible. However, the evidence of the parties is at variance respecting the lighting and visibility conditions existing in the alley. Plaintiff testified the alley was in the shadow of buildings, that it was so dark he did not see any object lying in the alley, and, as we have noted, that he couldn’t see the open hole, as he walked down the alleyway. On behalf of defendant, L. L. Baughman, who lived on Thirteenth Street just north across the street from the alley, testified that the alley was lighted well enough to see objects on the ground in the alley, that it “wasn’t hard to see”, and that you can see the manhole there. He also testified that other people “around in that vicinity” used the alley south of Thirteenth Street; that “they got their cars back down there and they go down the alley, a shortcut to get the cars out” * * * “They go down the alley to get to the parking lot to get the cars, instead of going down Grand the long way around, they cut down through the alley”. John D. McGuire, who operates a business at 1234 Grand Avenue, testified on behalf of defendant that he used the alley at night time for many years; that he would park his car in the alley and walk through it to his place of business. Mr. McGuire stated that the lighting in the alley was “pretty good”, that “there was light enough to see where you were going”, and that the manhole was visible from the street.

Plaintiff’s case was submitted on the theory that defendant was negligent in leaving the manhole open, uncovered, unguarded and unprotected, and that the alley was thereby rendered not reasonably safe for travel. The city defended the case on the theory that plaintiff was guilty of contributory negligence which directly caused or contributed to cause his fall and injury. This issue was submitted to tile jury by instruction No. 9 which the trial court gave at defendant’s request and which essentially told the jury that their verdict must be for defendant if they found that plaintiff saw or by the exercise of ordinary care could have seen the open manhole in time to have stepped around the same in safety by the exercise of ordinary care, but failed to do so, and that plaintiff was thereby negligent, and that such negligence caused or directly contributed to his fall and injury.

No contention is made on behalf of the defendant that plaintiff failed to establish a submissible case of negligence or that the city was not negligent in leaving the manhole uncovered under the circumstances in evidence.

In defendant’s first point the trial court is charged with error in refusing to give an additional instruction on contributory negligence, to-wit, defendant’s requested instruction No. 12, quoted as follows:

“The Court instructs the jury that if you find and believe from the evidence that on September 5, 1956, between 10 P.M. and 11 P.M., the plaintiff left the 111 Club and walked down the alley in question, and if you further find that at said time there were no street lights or other artificial sources of light which illuminated said alley at the location of the manhole in question, if you so find, and that said alley at said location was so dark that plaintiff could not distinguish the surface of the alley, if you so find, and plaintiff fell into an open manhole therein, and if you further find that a reasonably safe and lighted sidewalk was available on 13th Street and on Grand Avenue for plaintiff’s use but he chose to walk down the alley, and if you further find that plaintiff in choosing to walk in the alley under the conditions submitted above was negligent, and if you find such negligence directly caused or contributed to cause plaintiff’s injuries, then your verdict must be for the defendant”.

Pertinent to the question at hand is the following statement from 63 C.J.S. Municipal Corporations § 852, p. 205:

“Where a person voluntarily elects to travel along a route which he knows to be unsafe or obviously dangerous, with knowledge of another safe and convenient way, he thereby assumes the risk of the chosen way, and, if he is injured while traveling thereon, he is guilty of contributory negligence precluding a recovery, as where, knowing of the dangerous condition of a sidewalk, he elects to walk thereon when he could have avoided the accident by taking the opposite side of the street which was safe, or by walking in the roadway, or by walking to one side of the obstruction or defect.
* * * * *
“The above rule does not apply where the injured person had no knowledge of a safer route. Moreover, the rule applies only where the danger is so great and apparent that an or- ' dinarily prudent person would regard it as dangerous and avoid it, or, as has been held, where unusual conditions exist; and the mere fact that the way he used was defective or obstructed, and that there was another and safer way which he might have taken, does not per se establish contributory negligence, if he exercised ordinary care, in accordance with the conditions existing at that place”. (Emphasis ours.)

In Stephens v. City of Eldorado Springs, Mo.App., 190 S.W. 1004, the court said, “Defendant’s instruction No. 9 was refused, and this it is claimed was error. The instruction, in effect, unqualifiedly declared that if plaintiff, by taking a roundabout way, could have avoided the defective place, he was guilty of contributory negligence in failing to do so. This is not the law. Graney v. City of St. Louis, 141 Mo. 180, 184, 42 S.W. 941. A person is not bound to abandon his customary route of travel in a public street because of a defect therein, unless the defect is so patently dangerous that no ordinarily prudent and careful person would attempt to pass over it. (Citing cases.)”

In Morgan v. City of Kirksville, Mo. App., 179 S.W. 755, the court stated: “Defendant’s instruction No. 3 told the jury that, if the walk was dangerous, and plaintiff knew it was dangerous, or could have known it by the exercise of ordinary care, and yet negligently attempted to walk on it and suffered injury, she is not entitled to recover. The trouble with this instruction is that it makes the mere attempt to walk over it negligence, when, as we have seen, negligence can arise only in the manner in which she went over it if the walk was not glaringly dangerous. Of course, if it was so glaringly dangerous that an ordinarily prudent person would not have used it, and plaintiff knew of the defect, then the mere attempt to use the walk was negligence; but the instruction said nothing about such a state of affairs. These errors in the instructions should be avoided upon the next trial”. Also see Newberry v. City of St. Louis, 335 Mo. 1, 70 S.W.2d 546; Seniff v. City of Hannibal, Mo.App., 245 S.W. 197; Harding v. City of St. Joseph, 222 Mo.App. 749, 7 S.W.2d 707.

In view of the foregoing authority, it is our conclusion that instruction No. 12 should have required a finding to the effect that the way along the dark alley was so glaringly dangerous that an ordinarily careful person in the exercise of ordinary care would not have attempted to enter it. Such finding is a necessary predicate of an ultimate finding that plaintiff was contribu-torily negligent. Since there was neither proof of this necessary element nor inclusion thereof in the instruction, we are constrained to rule that it was erroneous, at least in the respect we have noted. Therefore the trial court was justified in refusing the instruction.

In urging the propriety of instruction No. 12, defendant relies principally upon a statement of the court made in Sanders v. Carl Berry Oil Co., Mo.Sup., 359 S.W.2d 769, that “We conclude that under the facts and attending circumstances a jury could reasonably find that when plaintiff entered the alley in total darkness at three o’clock in the morning when a safe and lighted sidewalk was available for his use he did not exercise the care of an ordinary reasonable and prudent person. * * The trial court was correct in ruling that whether or not plaintiff was guilty of contributory negligence was a jury issue”. We do not believe that the quoted statement constitutes any authority that instruction No. 12 in this case is a proper instruction. The Sanders ruling goes no further than to hold that the question of plaintiff’s contributory negligence was a jury issue under the facts in that case. It is noteworthy that in the Sanders case the court also ruled that the instruction which submitted the issue of contributory negligence was erroneous — as we have ruled in this case — but for different reasons. We find nothing in Sanders which abrogates or limits the effect of the authority we have heretofore noted defining the requirements of an instruction on contributory negligence involving a pedestrian’s choice of ways.

Defendant next contends that the verdict is excessive and that the court erred in not requiring a substantial remittitur. In considering this question, we shall observe the rule that “all reasonable presumptions are to be indulged in favor of the verdict and the evidence must be viewed favorably to the verdict”. Brown v. Moore, Mo.Sup., 248 S.W.2d 553.

The evidence favorable to the verdict is, in part, as follows: At the time of trial, plaintiff was 44 years old. Prior to his fall in the manhole he was engaged in operating heavy machinery and farming in off seasons. He had done heavy work all his life. For recreation he hunted and fished. Previous to this accident, his years of heavy work had resulted in a hack condition which the doctors described as a narrowing of the lumbosacral interspace between the fifth lumbar vertebrae and the sacrum. As to any previous trouble with his back plaintiff said “Maybe I got a catch but it never amounted to anything”. There is no evidence of any previous disability in plaintiff’s right knee. There is, however, abundant evidence from which the jury could reasonably find that plaintiff suffered serious and permanent disabling injuries to his right knee and additional injury and disability in his back as a result of his fall in the manhole.

When plaintiff fell he severely twisted or wrenched his right knee. Examination of the knee on the following day by Dr. Overesch, who testified on plaintiff’s behalf, revealed an effusion of the right knee joint —a large swelling or collection of fluid which was severely painful on palpation and weight bearing. The injury was diagnosed as a tear of the medial collateral ligament of the right knee joint. Dr. Overesch administered medication and placed a plaster of Paris cylinder cast on plaintiff’s right leg from the upper thigh to the ankle. Plaintiff wore the case three weeks, after which he wore an elastic bandage and a knee cage brace, and received further treatment by Dr. Overesch consisting of medical injections, massage and physiotherapy. From later X-ray examination of plaintiff’s right knee Dr. Overesch found that the healing process had caused formation of a calcific deposit opposite the right medial femoral condyle of the knee in the area where the ligament attaches, which has resulted in permanent residual disability of his right knee, in that the elasticity of the torn ligament is impaired, there is general laxity and looseness of the ligaments around the joint, crepitation is present, and the knee has been rendered more susceptible to future injury. Pain and tenderness in the knee joint have persisted. These conditions affect plaintiff in walking, have interfered with his work, are permanent, and cannot be relieved by surgery. These findings and opinions of Dr. Overesch are essentially corroborated by Dr. Dowell, who also examined and treated plaintiff. And, it is revealed by the testimony of defendant’s medical witness, Dr. Pickard, that the healing of the torn knee ligament was abnormal in that the calcification deposit is excessive, and that, “this bony deposit can actually be felt with your fingers”. Dr. Pickard admits that plaintiff walks with a limp, has a “weak, unstable knee which probably will go on being this way”, and that “this weakness is due to this injury.”

We have previously noted that plaintiff testified that as he fell, “I caught myself with my arms and it gave me a jerk and twisted my back”; also that his back was causing him pain and distress that night. He further testified that the knee injury was paramount and was his chief concern at first, but that as time went on his back became more painful until, in November of 1957, he consulted Dr. Dowell of Chilli-cothe for examination and treatment. Plaintiff was hospitalized and his back was placed under traction for six days. His complaints were of pain and stiffness in his entire back and also in his right knee. Dr. Dowell diagnosed plaintiff’s back condition as a scoliosis or misalignment of the spine caused by an abnormal weight stress, pointing out that plaintiff has a weak, unstable and painful knee which he is obliged to favor; that this has thrown the weight bearing parts of his body out of line; and, that because of plaintiff’s large size (6 feet 2 inches in height, 252 pounds in weight) a heavy, twisting strain was put upon his back which would necessarily render it sore and painful. In Dr. Dowell’s opinion the stress and shift of weight caused by the knee injury would aggravate plaintiff’s prior back condition and cause it to gradually grow worse. He testified that plaintiff’s present back complaints and knee injury were, in his opinion, severe, and that the fall in the manhole "triggered the whole thing”.

The findings of Dr. Dowell relative to plaintiff’s back are corroborated by Dr. Overesch. By later examination, Dr. Overesch found that new areas of bone, “little bony spurs or spicules” had been deposited in the upper lumbar spine area of plaintiff’s back — a sclerotic condition— which was an indication of abnormal weight bearing stress and is “a reaction of the bone to that stress”. In the doctor’s opinion plaintiff’s prior back condition was "undoubtedly aggravated by his fall and injury to the knee”. Upon examination of plaintiff two days before the trial he found definite limitation of motion in plaintiff’s back accompanied by pain upon bending; also tenderness in the lower back area upon palpation. Stating his opinion of plaintiff’s residual injuries, Dr. Overesch testified:

“It is my opinion that this patient has — presents residual disability in his right knee, particularly as a result of the tear of this medial ligament, with its healing by calcific deposit, which is shown by the X-ray. He has the restriction of the knee-joint motion, and laxity or looseness of the ligaments about the joint. He also has the pain and tenderness, which has persisted. It is felt that this knee injury was caused on his body by this accident of September S, 1956: In the back, he has a degenerative disc. He has narrowing of the joint space. He has some bony reaction about that area. He has continued complaints of pain in the back. It is felt that some of these X-ray changes were present to a certain degree when he was injured, and that these have been aggravated by his injury or trauma that he had on September 5, 1956”.

It is Dr. Overesch’s opinion that the described conditions are likely to produce pain and are permanent.

Since plaintiff was injured his knee has been painful, weak and unstable. It occasionally gives way on him and causes him to fall. It has made him “more awkward” and he can’t do much walking. He has had to give up hunting and any fishing which requires walking. He can no longer operate a bulldozer because of the knee injury. Instead, he operates a crane “but that still causes it to hurt”. Plaintiff testified: “At night after using it all day it hurts” — “A lot of nights it pains me terrible”. The pain interferes with his sleep and rest. His foreman, Ray Donoho, testified that “he is not capable at times of moving the machines and handling what he is supposed to do” and had to “shut down” and quit work for rest and relief from back and leg pain. According to Donoho, plaintiff lost three to four days’ work out of each month since the accident.

Plaintiff further testified that as time goes on his back and his knee pain him “a lot worse” and that the pain interferes with-his work; that he has lost on the average of “at least two days a month out of twelve months a year — on account of my back and my knee”; and, that his take home pay was approximately $21.00 per day. At the-time of trial plaintiff had a life expectancy of twenty-six years.

There is no exact standard of measure by which the money value of personal injuries can be gauged. As courts-frequently say, each case must be considered upon its own peculiar facts. Having so considered this case we reach the conclusion that the verdict of $14,000.00 is not excessive. The plaintiff was only 38 years-at the time of the casualty. He suffered injuries which for several years past have caused him pain and will continue to do so for his expectancy of 26 years. Under the evidence his loss of wages for that period alone could be computed by the jury as a. •sum of at least $13,000.00. Even under defendant’s view that plaintiff would be employed in construction work only half the year, his expectancy wage loss alone would amount to at least $6,500.00. Plaintiff’s injuries have rendered him unable to walk with stability or security and have deprived Rim of recreational pleasures.

Two juries have considered the question ■of plaintiff’s entitlement to damages. The first jury verdict, rendered two and one-half years prior to the verdict in this case, awarded plaintiff $10,000.00. The award in -this case exceeded the first verdict by $4,-•000.00. But, it may be considered that plaintiff had suffered additional pain in the interim of two and a half years, and had lost additional wages during that period •of time. These facts have some bearing ■on the question at hand, because it is primarily the function of the jury to assess an award of damages. The jury is in a better position to measure the reasonableness of the verdict than is the appellate court, where it should not be reduced unless, as a matter of law, the amount is more than the evidence will support.

In reaching our conclusion that the verdict should not be disturbed, we have given •due consideration to defendant’s extensive arguments on the question, and to the cases it cites. We have not found the former •sufficiently persuasive, or the latter of .sufficient applicability to warrant a decision that the verdict is excessive.

Defendant’s final point is a contention that the trial court erred in giving plaintiff’s instruction No. 4, which is a measure of damage instruction, conventional in form and content. Defendant made only a general objection to giving the challenged instruction at the trial and its motion for a new trial does not contain the specific allegations of error presently asserted against the instruction. Consequently, the alleged error in the giving of instruction No. 4 has not been preserved for appellate review. Civil Rule 70.02; Civil Rule 79.03, V.A.M.R.; O’Brien v. City of St. Louis, Mo.Sup., 355 S.W.2d 904; Wren v. St. Louis Public Service Co., Mo.App., 355 S.W.2d 365. However, we have examined the instruction, and considered it in connection with the charges lodged against it in defendant’s brief, in order to determine whether there exists plain error affecting substantial rights which we may consider in our discretion pursuant to Civil Rule 79.04 V.A.M.R. There is no such error in the instruction or in the action of the trial court in giving it.

The judgment is affirmed.

All concur.

      . This is tlxe second appeal in the case, The first appeal arose from a former trial and is reported in 358 S.W.2d 96.

      . Citing Harding v. City of St. Joseph, 222 Mo.App. 749, 7 S.W.2d 707.


author: MAUGHMER, Commissioner. PER CURIAM:

text:
    Cordell SCHOONOVER, Respondent, v. Lester KAHN, Gladys Kahn and Ben Lightor, Appellants.
    No. 23896.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Jerome B. Stone, Harold Waxman, Kansas City, Goodman, Stone & Taxman, Kansas City, of counsel, for appellants.
    Ralph E. Pratt, Silks & Silks, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Suit for damages growing out of an alleged breach of a real estate lease. Cor-dell Schoonover, plaintiff-respondent, during the years 1955-59, was engaged in “The meat processing business and appliance business”. He operated under the trade name “Nu-Way Sales”. On December 12, 1955, he and the defendants Lester Kahn and Ben Lightor, entered into a written Store Lease under which he leased for two years defendants’ property located at 3543 Prospect, at a rental of $140 per month.

On November 1, 1956, these parties executed a new lease for the same property. This lease was for three years, commencing November 1, 1956 and ending October 31, 1959. It carried the same rental figure of $140 per month, together with an option under which the lessee “shall have the option to purchase the premises leased herein for the sum of $15,000 at any time during the term of this lease by giving written notice of same to lessor 30 days in advance of the exercise of this option”.

Plaintiff said that after the first lease had been in effect for nearly one year he decided to begin processing meat and food in the building; that this required a remodeling of the structure which would be expensive and if he made these changes he wanted “protection on the building”. Therefore he sought and secured the second lease with the option to purchase. It was Mr. Schoonover’s testimony that he purchased the overhead heater and the air conditioners from lessors; that the old building on the rear of the premises needed extensive repairs to make it usable and he employed his “father, Bill Burris, Gene Powell and other laborers” to improve this building. He said the repairs and remodeling included the roof, walls and foundations, that the floors were insulated and electrical fixtures were installed. He declared that the making of these improvements took about six months’ time and cost approximately $15,000. He produced some canceled checks payable to Bill Burris and Gene Powell. He said Powell was paid $60 per week and Burris, who did most of the wiring, and was the contractor, was paid $150 per week.

Schoonover said that in 1958 there was a definite increase in the number of his refrigeration and appliance repossessions brought about by reason of customer defaults in payments. Plaintiff had negotiated this paper to finance companies with recourse on him. The finance companies retained a substantial sum of the purchase price paid for plaintiff’s customer notes as a “reserve” and according to the evidence this “reserve” could not be used to cover repossessions unless and until plaintiff went out-of business. Plaintiff testified that in order to make this reserve, which he estimated at $30,000, available, he closed out the business as it had been operated and formed a new corporation to carry on the venture. He moved some equipment from the premises, part to his residence, and part to a new location.

In December, 1958, plaintiff went to California for about two weeks. He said this trip was partly a vacation and partly to assist his father in a business deal. He left the keys to the leased premises with his employee Gene Powell. Gene Powell at the time was separated from his wife and lived in the premises both day and night. Mr. Powell testified that just before Christmas the defendant Ben Lightor came to the leased premises and asked where Schoon-over was. Powell replied that he was on vacation but would be back. He said Lightor told him he had sold the place and needed the keys. Powell gave Lightor the keys and moved out.

Mr. Schoonover returned from California and early in January, 1959, went to the premises where he found workmen painting and making repairs on the building. Plaintiff had paid all rentals due under the lease through December, 1958. He said that some of his personal property- — office supplies, air conditioners and bins for storing meat — of the total value of $500, had been removed and were never recovered by him. He claimed that he then rented a new location or store room at 31st and Jackson, at a monthly rental of $150, and that the cost of moving, installing his equipment and required remodeling was “approximately $5,000.”

The defendants Lightor, Kahn and Mrs. Gladys Kahn, in December, 1958, conveyed the leased property by warranty deed to Morris M. and Minnie Dloogoff. The Dloogoffs were named as defendants in Count 2 of plaintiff’s petition but had the verdict and no appeal therefrom was taken.

It was the trial contention of defendants that Schoonover had vacated the premises, had removed some of the fixtures and had never sought to exercise his option by giving the 30 days’ notice to either Lightor, Kahn or to the Dloogoffs.

The jury verdict and the judgment were for plaintiff and against the defendants Lightor, Kahn and Mrs. Gladys Kahn in the sum of $10,000. These defendants perfected a timely appeal in which they present five assignments of error, namely, (1) the petition fails to state a cause of action; (2) defendants’ motion for directed verdict should have been sustained; (3) it was error to give Instruction No. 1; (4) it was error to give Instruction No. 2 and (5) there is no evidence to support the verdict.

Plaintiff’s second amended petition alleges existence of the lease with option to purchase, compliance by the plaintiff with the rental provisions of the lease, improvements made by plaintiff, sale by defendants during the lease period, the wrongful dispossession of plaintiff and removal of plaintiff’s personal property, all to plaintiff’s damage in the sum of $30,000. The petition, we think, states a cause of action. The evidence which we have summarized is substantial and credible.

Appellants assert that Schoonover never tried to exercise the option by giving the prescribed 30 days’ notice and say he could have enforced the option against the purchasers, the Dloogoffs. Defendants by their sale of the property had made it impossible for them to perform under the option. They had breached the covenant conferring an option to purchase. As stated in 51 C.J.S. Landlord and Tenant § 88, p. 648: “In case of a breach of a covenant conferring on the lessee an option to purchase, the lessee is entitled to recover damages sustained by him”. See Barling v. Horn et al., Mo., 296 S.W.2d 94, where, under a different situation, specific performance was decreed. It is possible that plaintiff might produce evidence under which he might secure specific performance from the Dloogoffs but we shall not pursue or speculate upon this possibility. Defendants by their act in conveying the property made it impossible for them to honor the option.. Plaintiff is not required to seek recompense-for defendants’ breach of the option covenant from the Dloogoffs. He may seek damages from the defendants directly-Points 1, 2 and 5 are overruled.

We set out Instructions 1 and 2;

Instruction No. 1
“The Court instructs the jury that if you find and believe from the evidence that on or about the 12th day of December, 1955, Lester Kahn, Gladys Kahn and Ben Lichtar were the owners of the property commonly known as 3409-3411 Prospect, if so, and if you find that on that date Cordell Schoonover and the defendants, Lester Kahn and Ben Lighter entered into a lease agreement whereby plaintiff was to lease from the aforesaid defendants-the property known as 3409-3411 Prospect, Kansas City, Missouri, and if you further find and believe from the evidence that on the 1st day of November, 1956, the aforesaid parties entered into-a second store lease agreement for a term of three years, said agreement containing an option to purchase by plaintiff, if you so find; and if you further find and believe from the evidence that on or about December 12, 1958, that Lester Kahn, Gladys Kahn and Ben Lighter conveyed by warranty deed, title to the aforesaid property to the defendants, Morris Dloogoff and Minnie Dloogoff, and all of said defendants took possession of premises all without the knowledge of the plaintiff, Cordell Schoonover, if so, and that said deed did not recite that it was subject to plaintiff’s leasehold interest and option to purchase rights, if you so find; and if you further find and believe from the evidence that plaintiff made all of his rent payments under the lease agreements up to and including the time when he lost possession, if . you so find, and if you find that the defendants took possession of the aforesaid premises in December of 1958, in violation of the leasehold interests of the plaintiff, if you so find, and if you further find that prior to defendants taking possession of the premises there had been no breach of any of the lease covenants on the part of the plaintiff, if you so find, then your verdict shall be for the plaintiff and against the defendants”.
Instruction No. 2
“You are instructed that if the jury, under instruction number 1, finds the plaintiff is entitled to recover, you •will assess his damages at the actual ■damage which you believe, from all the evidence, he received, and in arriving at that amount you may take into consideration:
“First: For the reasonable value of the improvements, if any, made by plaintiff on the property at 3409-3411 Prospect, Kansas City, Missouri;
“Second: For the reasonable value ■of the loss of the use of the premises under the lease, if any, including the loss of business, if any, sustained by reason of the loss of use of the premises, if any, at 3409-3411 Prospect, Kansas City, Missouri;
“Third: For the reasonable value of the loss of his option to purchase said property, if any;
“Fourth: For the reasonable expense of acquiring and preparing a new location in which to conduct his business, if any.
“Fifth: For the reasonable value of any personal property which was withheld from plaintiff, if any”.

Instruction No. 1 hypothesizes factually the execution and the contents— including the option — of the two leases, and as prerequisite to a plaintiff verdict, requires a finding of the sale by defendants, a dispossession of plaintiff, all while plaintiff was in compliance with the lease. We believe the instruction was proper, hypothesized sufficient facts and did not give the jury a “roving commission”. Appellants complain that the instruction did not tell the jury what facts it must find to amount to a “violation of leasehold interests of plaintiff”. We think the instruction required a finding of the existence of the lease and the option, (neither of which was disputed), a sale before termination of the lease and a taking of possession while plaintiff’s rent payments were current. We overrule defendants’ objection to the giving of Instruction No. 1.

Instruction No. 2 lists five items which the jury might consider in arriving at the amount of damages. Appellants say this instruction is erroneous because “there was no evidence for the jury to determine the reasonable value of” (a) improvements made by plaintiff; (b) loss of use of leased premises and loss of business sustained by plaintiff; (c) the loss of the option to purchase; (d) the expense of acquiring and moving to a new location and (e) personal property of plaintiff which had been withheld. There was testimony by the plaintiff himself on all of these points. On the question as to the damages, if any, under the lost option there is the testimony that in 1956, the building was appraised at $15,000, testimony as to the improvements made by plaintiff and the fact that the Dloogoffs paid $27,079.49 for this property and apparently an adjoining rental property. The record is vague as to the other property and there is no testimony as to its proportionate value in the total purchase price.

We have examined the authorities referred to in appellants’ brief and find no pronouncements requiring reversal of this judgment. For example, in Lee v. Armour Bldg. Co., Mo.App., 18 S.W.2d 102, cited by appellants, plaintiff was dispossessed with 8i/£ months remaining under his lease which carried an option to renew for one additional year. The court specifically approved Instruction No. 2 given in that case which authorized the jury to “take into consideration the loss of-profit, if any, sustained by plaintiff which he would with reasonable certainty have realized during the term of said lease remaining * * * with the privilege of the plaintiff extending said lease one year thereafter * * *

As one of the owners of the leased property, Mrs. Kahn acquiesced in the lease signed by her husband, she joined in the conveyance to the Dloogoffs and cannot escape liability because she did not actually sign the lease.

The verdict for $10,000 is certainly well within the limit of damages as shown by plaintiff’s evidence. Appellants make no additional assignments of error. Therefore, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


text:
    Max A. EAGLESTEIN and Mildred Eaglestein, Appellants, v. PACIFIC NATIONAL FIRE INSURANCE COMPANY, a Corporation, Respondent.
    No. 23920.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.
    Terrance W. Imes, Kansas City, for appellants.
    Knipmeyer, McCann & Millett, Glenn E. McCann and Joseph H. Moore, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is a suit on an insurance policy covering a dwelling house. The facts are not in substantial dispute and only one question is presented by the appeal. Plaintiffs had a verdict for $3,000. The court set aside the verdict and entered judgment for the defendant. Plaintiffs have appealed.

Max A. and Mildred Eaglestein, plaintiffs, were owners of a one-family dwelling house located at 1244 West 64th Street Terrace, Kansas City, Missouri. It is undisputed that Pacific National Insurance Company, defendant, carried the insurance coverage on the property, which was in full force and effect from May 1, 1957 until May 1, 1960.

We set out the two particularly pertinent provisions of the policy, the construction and application of which are required by this lawsuit and will be decisive as to the result:

“SECTION I — COVERAGE.
“THIS POLICY INSURES AGAINST ALL RISKS OF PHYSICAL LOSS EXCEPT AS HEREINAFTER EXCLUDED, to the described property, subject to the provisions of this form and of the policy to which this form is attached including endorsements thereon.
“SECTION II — EXCLUSIONS
“THIS POLICY DOES NOT INSURE AGAINST LOSS—
“(A) By termites or other insects; wear and tear, deterioration; smog; smoke from agricultural smudging or industrial operations; rust, wet or dry rot; mould; mechanical break-down; settling, cracking, shrinkage, or expansion of pavements, foundations, wails, floor, or ceilings; unless loss by fire, smoke (other than smoke from agricultural smudging or industrial operations), explosion, landslide, collapse, water damage, or glass breakage ensues, and this Company shall then be liable only for such ensuing loss.” (Italics added).

It is plaintiffs’ contention that their evidence shows there was a “collapse” of the walls within the meaning of the policy prior to May 1, 1960, and the court erred in setting aside the verdict and entering judgment for defendant company. It is defendant’s position that plaintiffs’ evidence shows not a “collapse”, but rather a “settling, cracking, shrinkage or expansion” of the foundation and walls which type of casualty is specifically exempted from coverage and therefore the court properly entered judgment for defendant and against plaintiffs.

The defendant offered no evidence at the trial. We review and summarize the evidence as presented by plaintiffs. The insured dwelling was built in 1953-54. It is one-story ranch type with full basement and attached garage. The front is stone and brick veneer and the other sides frame construction. Mr. Eaglestein said that in 1956 he observed a “little settlement” on the southwest and on part of the north side of the house. He employed the Kniepfel Construction Company to underpin the house on three sides and said they “bored for piers about every four or five feet, filled them with concrete reinforced with steel, we leveled the house up completely and sat the house back down on these new footings which was supported by piers”. He stated that early in April, 1960, he noticed both vertical and horizontal cracks in the north and west walls. Mr. Kniepfel came again and these walls were shored up with heavy timbers. Mr. Eaglestein testified that the bulges from these cracks kept increasing, the concrete blocks began cracking and dirt came in through the cracks and on the floor. He called the insurance company. An adjuster came but the company did not accept or assume liability. In the fall of 1960, the cracks became wider and were variously described as being one-eighth or one-fourth inch in width. (The policy lapsed May 1, .1960). In March, 1961 plaintiffs employed the Bell Construction Company to repair these walls. Bell’s bid for this job was $3,260, which plaintiffs paid.

Mr. Leon Maslan, who qualified as an architect and engineer, testified. He described the soil in Kansas City as predominantly clay strata. He said that during and immediately after the drought years of 1956-57, “we had a considerable amount of damage to houses and small buildings in Kansas City due to settlement which was actually a result of this clay subsoil shrinking from the lack of water. * * * Then the rains come and it expands and shrinks again as it dries”. Mr. Maslan said plaintiffs’ dwelling was built on this clay soil. He examined plaintiffs’ house in April, 1960, and found horizontal cracks in the “joints. of the blocks” in the southwest corner and in the north wall on the west side. He was unable to determine if the walls were broken clear through. He said that once a concrete block wall is cracked it will not heal itself, that if not repaired the situation will become progressively worse “until the upper portion slides off of the bottom portion and then it will collapse”. It was Mr. Maslan’s opinion that the walls here bulged inward because of hydrostatic pressure which he defined as “pressure which is caused by the presence of water”.

Plaintiffs’ legal position on appeal, as we understand it, is not that there was an actual de facto collapse, but rather, as stated by their counsel in his opening statement “there was a condition of impending collapse”. The policy covered and insured against “collapse” but squarely excluded “settling, cracking, shrinkage or expansion of pavement, foundations, walls, floor or ceilings”. Plaintiff insist that these two provisions are inconsistent, each with the other, and are ambiguous. They then ask us to apply the well known rule of construction that when one provision, or two or more provisions of an insurance contract are reasonably susceptible, of two meanings, preference will be given to the interpretation most favorable to the insured. They urge further that where there is an ambiguity, judicial construction will grant, rather than deny, coverage. There is no doubt that such is the law. Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 639, 86 A.L.R.2d 925; Utchen v. American Casualty Co. of Reading, Pennsylvania, Mo.App., 356 S.W.2d 102, 104. However, it is also true, absent ambiguities or phraseology reasonably susceptible of different interpretations or meanings, that courts should enforce the plain provisions of contracts, including contracts of insurance. Winston v. Hartford Fire Ins. Co., Mo.App., 317 S.W.2d 23, 26. As stated in 44 C.J.S. Insurance § 290 p. 1139, “The courts may resort to construction, in the usual sense, of a contract of insurance only when the language of the contract, in its ordinary meaning, is indefinite, ambiguous, or equivocal”.

Counsel for both sides state that the appellate courts of Missouri have never ruled on the precise question here presented and we find no such rulings. Our courts have not considered the applicability of a “collapse” provision in an insurance policy under a state of facts similar to those before vs. Appellate courts in other jurisdictions have considered the question and have reached almost completely opposite conclusions.

In Jenkins v. United States Fire Ins. Co., 185 Kan. 665, 347 P.2d 417, the policy insured against 14. “Collapse of building(s) or any part thereof”. There was an exemption “For loss caused directly or indirectly by earthquake, backing up of sewers or drains, or by flood, * * * ”. It will be noted these policy provisions are somewhat different from ours where “settling, cracking, shrinkage or expansion” are specifically excluded. However, in the Kansas case the evidence showed a “settling, cracking and breaking” of the walls. The Kansas court said the “basic issue involved was whether appellant could recover for an alleged settling, cracking and breaking of the wall * * * of the basement of a dwelling insured under * * * a. policy * * * insuring her against all direct loss to the property caused by ‘collapse of building(s) or any part thereof.’ ” The court reversed a judgment for defendant and remanded for new trial, saying:

“Boiled down and stripped of all excess verbiage the gist of appellee’s position on this point is that there was no coverage under the collapse clause of the policy until the basement walls fell into a flattened wreck or distorted state.
íj< í{í ^
“ * * * we believe the clause ‘collapse of building or any part thereof’ as used in the involved insurance contract is to be interpreted as comprehending that, if brought about by unusual and extraordinary circumstances which the parties to that agreement could not normally expect or foresee on the date of its execution, the settling, falling, cracking, bulging or breaking of the insured building or any part thereof in such manner as to materially impair the basic structure or substantial integrity of the building is to be regarded as a ‘collapse’ of the building within the meaning of that word as used in such clause of the policy”.

The Supreme Court of Nebraska (Morton v. Travelers Indemnity Co. 171 Neb. 433, 106 N.W.2d 710, 713) reached a similar conclusion where the contingency insured against was — “9. Collapse: Loss by collapse shall mean only the collapse of the building or any part thereof”, ruling that this clause meant a sudden or unusual shrinking, settling or falling of the building or any part thereof even though the walls or other parts of the building did not actually fall down. We do not find in the Nebraska policy any specific exemption for “settling, cracking, shrinkage or expansion” as found in the Missouri contract. The Supreme Court of Iowa in Rogers v. Maryland Casualty Co., 252 Iowa 1096, 109 N.W. 2d 435, viewed a “collapse clause” as ambiguous and allowed recovery where the cracks finally became as wide as four inches. Anderson v. Indiana Lumbermens Mutual Ins. Co. of Indianapolis, Indiana (C.A.La.) 127 So.2d 304, holds that “collapse” within meaning of casualty policy on house included cracking and settling of walls due to expansion and contraction of soil. The U.S. Court of Appeals, 10th Circuit, Travelers Fire Ins. Co., Hartford, Conn. v. Whaley, 272 F.2d 288, allowed recovery under a policy issued in the state of Kansas. Wisconsin and Texas courts have also followed this interpretation. Bradish v. British America Assur. Co. of Toronto, Canada, 9 Wis.2d 601, 101 N.W.2d 814; Employers Mut. Cas. Co. v. Nelson (Tex.) 361 S.W.2d 704, 709.

However, in other jurisdictions courts of last resort have reached conclusions exactly opposite.' Our Eighth Circuit Court of Appeals in Nugent v. General Ins. Co. of America, 253 F.2d 800, construed a clause against direct loss caused by “collapse of building(s) or any part thereof”. The reasoning was that reasonable construction of a Missouri policy on a dwelling insuring against direct loss caused by collapse of building or any part thereof was that policy did not cover loss due to settling or sinking of footings which supported dwelling’s exterior walls. In this case plaintiffs did not contend that the insured building as a whole collapsed but asserted that the sinking or settling constituted a collapse of a “part thereof”. The “part thereof” phrase is not found in our particular policy.

In Central Mutual Ins. Co. v. Royal et al., 269 Ala. 372, 113 So.2d 680, 683, 72 A.L.R. 2d 1283, the coverage was for “[cjollapse of building or any part thereof”. The Supreme Court of Alabama reversed a judgment for plaintiff and said: “We find from the authorities dealing with the word ‘collapse’ or ‘collapse of a building’, as used in various policies of insurance, that the meaning thereof is plain and clear without ambiguity and the contract involved in this case must be enforced as written. In the case at bar there was no collapse of the building. There was no collapse of any part of the building. Some of the walls appeared to have cracks in them and in two ■or more places the concrete footing contained cracks, but there was no collapse of the building within the foregoing authorities. There was no falling in, no loss of shape, no reduction to flattened form or rubble of the building or any part thereof. The building was still in its original form and condition with the exception of a few cracks. Accordingly, we do not consider that the appellant was liable under the provisions of the policy to which we have referred or that the plaintiffs were entitled to recover”.

In Niagara Fire Ins. Co. v. Curtsinger et al., (C.A.Ky.) 361 S.W.2d 762, that court reversed a judgment for plaintiff, ruled the phrase “[cjollapse of the building or any part thereof” was not ambiguous, but rather “the word 'collapse’ in connection with a building or other structure has a well-understood common meaning” and held that where the porch and its roof pulled a few inches away from the main building there was not a “collapse” within the meaning of the policy. An Illinois appellate court in Kaplan v. Interstate Fire & Casualty Co., 35 Ill.App.2d 400, 182 N.E.2d 766, considered an identical insuring clause ar.d reached a like result.

We quote from the opinion of the Supreme Court of Vermont, Gage v. Union Mut. Fire Ins. Co., 122 Vt. 246, 169 A.2d 29, where the contingency insured against was: “9. Collapse: Loss by collapse shall mean only the collapse of the building(s) or any part thereof.” The evidence showed a buckled ceiling, raising of the floor, plumbing becoming out of line and bent, door sill dropping five inches from a level with center of floor and splitting of fireplace. The court reversed a judgment for plaintiff and said:

“We come now to the real question: Did the loss suffered by the plaintiffs constitute a ‘collapse of the building(s) or any part thereof ? ’ An answer to this question can only be found by interpreting the language of the policy and applying it to the facts found. What was the protection which it can fairly be said the policyholder purchased? It is this that he is entitled to receive.
“(3) In arriving at a determination of this sort, uncertainty in the significance of a term used in an insurance policy is to be resolved in favor of the insured and against the company. Griswold v. Metropolitan Life Insurance Co., 107 Vt. 367, 381, 180 A. 649. However, contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the £erms which the parties have used, and if they are clear and unambiguous, their terms are to be taken in their plain, ordinary, and popular sense. Johnson v. Hardware Mutual Casualty Co., 108 Vt. 269, 277, 187 A. 788. Certainly not every damage incurred with respect to a building can be said to be a ‘collapse’ ”.

Commenting on the Kansas case, Jenkins v. United States Fire Ins. Co., supra, the Vermont court declared:

“This definition is far too expansive to be predicated on the word ‘collapse’ as it is commonly understood. We see no reason to reject the plain ordinary meaning of such a word in favor of the definition laid down by the Kansas Court. No doubt coverage of this sort would be a desirable coverage for a policyholder to have, but we do not think it can be fairly said to be the coverage which the policyholder bought. The fact that the Kansas rule was applied in Travelers Fire Insurance Co., Hartford, Conn. v. Whaley, 10 Cir., 1959, 272 F.2d 288, cannot be regarded as further authority for the Kansas rule since the case was one in which the Federal Courts were bound to apply Kansas law”.

In an effort to find further enlightenment we examine the dictionary, and a textbook authority. The Oxford English Dictionary defines “collapse” this way: “To fall into a confused mass or into a flattened form by loss of rigidity or support; to break down, give way, fall in, cave in”.

14 C.J.S., p. 1316, defines “collapse” as follows: “To break down or fail abruptly and utterly, to cave in; to close by falling or shrinking together, to fall together, or into an irregular mass or flattened form, through loss of firm connection or rigidity and support of the parts or loss of the contents, as a building through the falling in of its sides, * * *

The policy on which this suit was brought did not insure against “collapse” and stop. It carried a plain exclusion of “settling, cracking, shrinkage or expansion of pavements, foundations, walls, floor or ceilings” from coverage.

We believe that the policy provisions are not ambiguous, certainly not under the factual situation before us. In our opinion the phraseology used has a clear and commonly understood meaning and hence needs no construction over, above and beyond its plain meaning. We regard the opinions of those appellate courts denying coverage under a “collapse clause” in those instances where the walls cracked or settled as being better reasoned and as having reached more logical results. We concur with the conclusion of the trial judge that plaintiffs’ casualty, as shown by their evidence, is not covered by the policy.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


text:
    KANSAS CITY, Missouri, a Municipal Corporation, Appellant, v. MANOR BAKING COMPANY, a Corporation, Respondent.
    No. 23848.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Herbert C. Hoffman, City Counselor, M. E. Benson, L. B. Saunders, Asst. City Counselors, Kansas City, for appellant.
    Robert D. Youle, Ronald G. Schmidt, Lathrop, Righter, Gordon & Parker, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

In the years, 1953, 1956, 1957, 1958 and 1959, defendant Manor Baking Company, which maintained in Kansas City, Missouri, a baking .plant producing bakery products, sold within and without Missouri, applied for and was issued by plaintiff City occupational licenses as a retailer, computed at rates and upon the measure of gross receipts applicable to 'retailers. This action was brought by the City to recover the sum of $9,050.27, being the difference between the occupational license fees paid, and the occupational license fees which the City contends should have been paid by defendant for licenses for the privilege of manufacturing within the City.

The trial court found that “defendant’s primary and predominant business endeavor and its principal business or occupation is as a merchant, and that within the city ordinances in effect from time to time defendant Manor Baking Company is properly classified as a ‘retail or wholesale baker’ and is not within the scope of ordinance provisions applicable to manufacturers.’ ” From a judgment based upon that finding plaintiff City appeals.

From the above it is to be seen that the question presented here is whether defendant was a “manufacturer,” as appellant contends, or whether it was a “merchant baker,” as defendant asserts.

It must not be assumed that defendant has ignored its financial obligations to the City. Rather in all years here involved it filed returns, reported the amount of gross receipts it believed the taxing ordinances legally reached and paid heavy occupational license taxes, a total of $21,057.09. It also paid real and personal property taxes, ad valorem taxes, license taxes on a fleet of 277 trucks and many other taxes.

Before discussing the facts we note that there is a statutory definition of merchant. R.S.Mo. (1949), Section 150.010, V.A.M.S., provides:

“Every person, corporation, copart-nership or association of persons, who shall deal in the selling of goods, wares and merchandise at any store, stand or place occupied for that purpose, is declared to be a merchant. Every person, corporation, copartnership. or association of persons doing business in this state who shall, as a practice in the conduct of such business, make or cause to be 'made any wholesale or retail sales of goods, wares and merchandise to any person, corporation, copart-nership or association of persons, shall be deemed to be a merchant whether said sales be accommodation sales, whether they be made from a stock of goods on hand or by ordering goods from another source, and whether the subject of said sales be similar or different types of goods than the type, if any, regularly manufactured, processed or sold by said seller." (Emphasis added)

Appellant interprets Manor’s charter provisions as showing it is a manufacturer. True, the quoted provisions show it has broad purpose clauses and powers as do most business corporations. But it is not the purpose of its charter, but how it in fact operates which determines the business in which, it is engaged and hence how the City may lawfully license it. For example, as quoted by the City, Manor is authorized to own and operate factories “for the production of raw materials * * * ” and to operate chemical and testing laboratories. Yet in fact Manor does none of these things and hence has no need for a license for them. And in addition to the provisions relied upon by the City Manor is also authorized to “buy, sell at wholesale or retail * * * and otherwise deal in * * * bakery and food products * * This is in fact its business — its principal activity.

Thus, Manor’s corporate authority is entirely consistent with its contention that it is predominantly a merchant, although producing perishable food products to meet its sales needs and because of lack of other source of supply. At least 50% of Manor’s sales are from its retail door-to-door sales of bakery goods at retail prices by its own direct employees under union contract. Another 3% of its sales are made through seven retail stores operated by Respondent, four in Kansas City, Missouri, city limits. The remainder of its sales are at wholesale to its distributors, for their retail door-to-door sale.

The Stipulation of Facts fully supports Manor’s classification as a merchant. While it operates a baking plant, it also operates two distribution substations, seven retail stores, and sells in four states by means of a large force of retail door-to-door salesmen. Its plant produces “highly perishable” bakery goods and Manor deals only in such goods. Such bakery goods are produced “daily” for Manor’s own sale requirements and not upon prior orders, are delivered by Manor’s • employees or distributors to its retail customers daily; if not currently sold, goods become “stales” and are returned to Manor for salvage sale.

Manor handled its own sales and distribution, selling such bulky, perishable goods in the feasible market area by means of a force of several'hundred employees. All Manor bakery goods are sold at retail, door-to-door to housewives, never in stores (except its own salvage stores) by driver-salesmen under union contract or by distributors. Manor had a sales force of 570 persons compared to 200 engaged in the baking process, and over 53% of its expense of operation was in the distribution and selling end of the business compared to 42% in production which includes all production labor and costs of ingredients. Within the metropolitan area alone Manor had 190 retail door-to-door routes, served by 136 driver employees accounting for 50% of its sales as well as 171 retail routes elsewhere served by 93 distributors in Missouri and 172 driver employees and distributors in Kansas. Manor owned and operated in handling its retail distribution 277 motor vehicles, i. e., 173 retail delivery trucks in Missouri and 92 in Kansas and 12 large transports. Its distributors owned and operated another 171 similar retail trucks.

Is this a manufacturer’s mode of operation ? We think the answer is clearly in the negative.

Manor always sold solely for its own account, and its “production” or baking of bread and pastries was never upon advance order of its customers, was never for “other than a single day’s stock” and "the products were not packaged as to be susceptible of storage or warehousing. 'All stales were returned for full credit, so it bore the full sales risk.

This illustrates that the heavy end of Manor’s effort, the success of its business venture and the essence of its operation, was selling or merchandising. Its production was incidental — necessary because such goods must be baked or produced to be fresh and available for its sale. But in selling it was not doing so to realize a production' or manufacturer’s profit — had the perishable goods remained in its possession even' for a single day there would have béen no profit, no commercially successful venture. Rather, it merchandised, and realized its profit and success from perishable, bulky, edible goods which it had to produce for freshness required to effect sales of such foodstuff. Truly, its predominant activity in number and effort of employees, in method of total operation, in source of profit, was as a merchant.

Appellant’s long time administrative classification of Manor is to the same effect. In all of the years involved, the applications for yearly licenses provided, and sent by the City to Manor classified it as “Baker-R” (Baker-Retail) both as to its main operation and its salvage stores. The licenses actually issued through 19S9 also classified Manor as “Baker-R.” Appellant never attempted to classify Manor as other than a retail bakery and repeatedly acknowledged this as its classification. Further, in 1958 and 1959, when the tax rate for merchant bakers was higher than for manufacturers, Manor completed application forms by showing the gross receipts which it believed properly subject to inclusion opposite the mercantile classification, and paid tax at the $1.00 rate for retail and wholesale bakeries, rather than at the 85‡ rate for manufacturers.

• We think it clear that Manor conducts a predominantly mercantile endeavor, processing ingredients only by necessity from the character of its product. Its reporting on this basis has been clear and consistent and the long administrative practice of the City supports this as Manor’s proper classification.

And under Missouri case law Manor is not a manufacturer. In State of Missouri v. Whittaker, 33 Mo. 457, under a statute identical to the first sentence of present Section 150.010 quoted above, defendant was indicted for dealing as a merchant and selling one thousand hams, without a merchant’s license. Defendant was a meat packer, purchased and butchered hogs and cured hams, some of which he sold at his place of business. The defendant asked an instruction that if he was a packer (e. g. a manufacturer of meat products)- and incidently sold meat products, he could not be convicted for failure to have a merchant’s license. The court stated 33 Mo. 1. c. 459:

“It is immaterial that the defendant, by his labor, changed the form of the goods sold. If he dealt in selling them at a store, stand or place occupied for that purpose, he is a merchant (for the purpose of this act) ; and it is also immaterial that the store, stand or place may have been occupied for some other purpose.”

In Kansas City v. Ferd Heim Brewing Co., 98 Mo.App. 590, 73 S.W. 302, under a similar statutory and charter definition of merchant, Kansas City sued the defendant corporation for merchants’ taxes. Defendant denied liability claiming it was a manufacturer and “was not engaged in the business of a merchant.” The court reversed a trial court judgment for defendant, saying 73 S.W. 1. c. 303:

“It will be seen by these decisions that a manufacturer may or may not be a merchant within the meaning of the charter and the statute of the state. If he keeps at a store, stand, or other place, in stock, articles manufactured by him for sale in the ordinary course of trade, he is a merchant. If he only manufactures upon order, he is not a merchant. It is, therefore a mixed question of law and fact whether a manufacturer is or is not a merchant. * * * ” (Emphasis added)

A criterion of who is a manufacturer as distinguished from a merchant has been held to be that of production and sale of goods on previous order. State v. West, 34 Mo. 424, 428; State v. Richeson, 45 Mo. 575, 578. In the West case the court stated:

“To be a merchant, in the sense of the law, the dealer must have on hand goods, wares and merchandise ready for sale and present delivery and must also actually deal in the selling of the same. One who manufactures and supplies goods alone to the previous order of his customers, although he keeps on hand, hut not for sale, the materials from which the manufactured articles are produced, is not a merchant within the meaning of the statute.” (Emphasis added)

In The Richeson case, the court stated:

“One who manufactures and supplies goods alone to the previous order of his customers, although he keeps on hand, but not for sale, the materials from which the manufactured articles are produced, is not a merchant within the meaning of the statute.”

Manor did not produce for prior order, but processed its products to have on hand perishable goods ready for present sale and delivery.

Appellant City relies primarily upon the case of City of Ozark v. Hammond, 329 Mo. 1118, 49 S.W.2d 129. In that case defendant was convicted of violating a city ordinance providing that all persons who sell from a truck or other conveyance any bread, crackers or other merchandise shall first be licensed. Defendant was an agent of Nafizger Baking Company which produced bakery goods in Springfield and sold them at wholesale to retail merchants in various towns, including Ozark. The conviction was reversed because the occupation sought to be taxed was not specifically enumerated in those permitted by delegation by state statute to be licensed by fourth class cities. Anything said in that opinion on the character of a baking operation is mere dicta.

In other Missouri cases cited by appellant, where similar ordinances were attempted to be applied to bakeries operating similarly to the one in the Ozark case, they were held void for the same reasons and upon similar constitutional grounds in denial of equal protection of the law.

We have not failed to note the cases cited' by appellant from other jurisdictions, but the facts of the instant case do not bring it' within their scope.

The judgment was for the right party and should be affirmed. It is so ordered. All concur.