author: HOUSER, Commissioner.

text:
    Garland Eugene ADAMS and Mary Elizabeth Adams, Respondents, v. Finley MASON and Minnie J. Mason, Appellants.
    No. 52224.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.
    Motion for Rehearing or for Transfer to • Court En Banc Denied Dec. 11, 1967.

      J. William Blackford, Kansas City, for respondents.
    Robert E. Coleberd, Hale, Coleberd, Kin-caid & Waters, Liberty, Dudley D. Thomas, Jr., Thomas & Thomas, Carrollton, for appellants.
   HOUSER, Commissioner.

This is an action to establish an interest in certain farm lands and for an accounting. This is the third appeal in this case. The first was dismissed as premature. Adams v. Adams, Mo.Sup., 294 S.W.2d 18. The second resulted in the reversal of a judgment that plaintiffs are the fee owners of certain real estate and awarding them $16,304.63, and the cause was remanded for further proceedings. Adams v. Mason, Mo.Sup., 358 S.W.2d 7. The judgment from which this third appeal is taken ordered the substitution of Garland Adams, administrator, as party plaintiff in place of Hedge Bland Adams, deceased; decreed that plaintiffs Garland and Mary Adams owned a 187.375-acre tract in fee simple; that Garland Adams had an option to purchase from defendants Finley and Minnie Mason a 27i/¿-acre tract for $58.80 an acre and that if he exercised his option he should file a notice of election and an authorization to reduce the judgment granted him by the sum of $1,617 (which he did), and entered money judgments against defendant Finley Mason in favor of Adams individually for $5,192.67, plus $3,605.99 interest, and for Adams as executor for $11,-872.70, plus $8,254.96 interest.

The factual background having been painstakingly set forth in detail in the two previous decisions of this Court, we need not restate or further delineate the facts except as may be necessary to a full understanding of the issues raised on this appeal.

On the second appeal we made certain rulings which became the law of the case. We decided that the beneficial title to the 187.375-acre tract was in Garland Adams and wife, subject to an indebtedness to the Masons of $2,710, with 5% interest; that plaintiffs Garland and Hedge should be charged with one half the total amount of principal and interest if paid by Finley Mason on the deeds of trust out of his personal funds, and that in the absence of satisfactory proof that these payments were made out of Mason’s personal funds the inference is justified that the payments were made out of gross receipts from the farm operation and should be charged as a partnership expense; that Garland Adams and wife are the owners of the additional 27.5 acres described in the contract of July 29, 1938 on paying or being debited therefor at the rate of $58.80 per acre and that in the absence of other evidence the Masons are equitably entitled to be credited with $2,710.28, plus interest at 5% thereon for six years. We further ruled that Finley Mason had the duty to render an accurate accounting of the partnership; that he had failed to discharge his duty but that his failure should not keep plaintiffs from recovering whatever might be due them, and suggested that plaintiffs “needed only to come forward with some evidence which would circumvent the necessity for a detailed accounting but which, nevertheless, would furnish a reasonable basis for an equitable adjustment of the partnership operation.” The opinion suggested that the issues might be resolved if plaintiffs adduced testimony which would show the average net income of the farm during the period involved, and also implied that plaintiffs might go on the “reasonable rental value” theory as a basis for the statement of an account between the partners.

Taking their cue from these suggestions plaintiffs on remand adopted the “average net income” method of adjusting the accounts. They introduced the testimony of Cecil Endicott, who farmed a tract of 200 acres adjoining the land in question and another 325-acre farm located a mile and a half distant. Mr. Endicott had farmed in that community all his life. He purchased the adjoining 200 acres in 1946 and operated the 325-acre farm in partnership with another. He was engaged in an operation in which both pasture land and crop land were used in what he termed “balanced farming, cattle, hogs, and raising the various crops and feeding and selling the animals.” He counted on feeding out 150-200 head of cattle per year and selling the remainder of the cattle off the pasture. He sold from 500-800 head of hogs per year, in a livestock operation. He did not sell the grain he raised but fed it, and his net profits were based largely on gains from the sale of livestock. In comparison to the Adams operation Endicott has “many more times livestock” and “several hundred head of hogs and quite a number of cattle” more than Adams. Familiar with the Adams farm, having been on it a number of times, the soil and drainage problems, he said that all of it was cultivable, and that the Adams soil, improvements and operation were comparable (very similar) to his. He did not know, however, how many acres of the Adams farm were devoted to corn, oats, or other grain; how many bushels of grain any particular field had produced, or how much hay had been harvested in any one year. He admitted that production depended upon the type of farming operation, weather, season, kind of seed, use or lack of fertilizer, spray, etc., and that the success or failure of a farming operation depends largely on the type of operator, whether he gives it personal attention, uses modern farming methods, etc.

Witness Endicott gave the gross and net income from his farming operations during the years 1946-1954. He testified that his land “averaged out very close to $20 a year income” per acre, farm land and pasture land and all combined; that when he put his land in corn the net profit was about $40 per acre per year, and that the Adams farm would produce as well as his farm if it was run right, that is, as economically and carefully as Endicott ran his farm.

The trial judge considered the testimony of the witness Endicott to be reasonable and, commenting that it was not refuted, accepted it and based the award to plaintiffs on the reasonably to be expected net return or profit of $20.00 per acre per year.

Appellants’ first point is that the court erred in substituting Garland Adams, Administrator of the Estate of Hedge Bland Adams, Deceased, in the place of the deceased as a party plaintiff, claiming that the action should be dismissed as to Hedge Bland Adams. Hedge died July 2, 1958, after the first remand and prior to the judgment from which the second appeal was taken. Garland was appointed administrator March 16, 1962. The first publication of letters of administration was March 23, 1962. The motion to substitute the administrator as a party plaintiff, filed August 10, 1962, was sustained on March 7, 1966. Section 507.100, subd. 1(1), V.A. M.S. and Civil Rule 52.12(a), V.A.M.R. provide that if a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. Section 507.100, subd. 1(3), V.A. M.S. and Civil Rule 52.12 (c) provide that if the death of a party occurs prior to final judgment and before appeal and substitution or motion therefor is not made within nine months after the first published notice of letters of administration, the action shall be dismissed as to the deceased party. The death occurred prior to final judgment, while the matter was pending in the circuit court, and before appeal. A motion for substitution was made within nine months after the first published notice of letters. While the motion was not acted upon and the order of substitution not actually made until more than three years after motion was filed, this delay did not affect the legality of the action taken by the court. The statute and rule do not provide for dismissal of the action as to the deceased party in every case that substitution is not made within the nine-month period. It is sufficient if the motion for substitution be made within that period. Although the court acted on the motion tardily, the order of substitution was valid.

Appellants’ second point is that the court erred in accepting and using the testimony of plaintiffs’ witness Endicott as the basis of its calculations because Endicott was not qualified to express an opinion that the Adams farm would produce a yearly income of $20 per acre; that the success or failure of a farming operation depends upon the efficiency of the operator, the personal attention given and whether modern farming methods were used; that Endicott did not know what the Adams farm actually produced or how it was operated; that Endi-cott was engaged in a much more extensive livestock operation than that conducted on the Adams farm; and that in determining net profit Endicott did not take depreciation into consideration.

There is no question that Endicott was qualified to testify as to the net yearly profit per acre from his own farming operations. He was an experienced farmer, 45 years of age, who had been farming all of his life, and had been farming the adjoining land since 1946. He farmed 525 acres from 1946-1954. He made and kept the records of income and expenses. He gave the number of dollars of gross and net profit for each of the years 1946-1954. Whether the testimony as to the productivity of the Endicott farm could be applied to the Adams farm would depend upon the similarity between the two farms in size, topography, soil conditions, improvements, type of operation, etc. There was substantial evidence of similarity in these respects. Endicott’s lack of knowledge of how many bushels or bales per acre were actually produced on the Adams farm, what methods of operation were employed on that farm, and how efficiently the Adams farm was operated, did not prevent him from testifying. It is the comparative capacity to produce that is important. It is error in a condemnation proceeding to exclude evidence of relative productivity of comparable farms in the community, State ex rel. State Highway Commission v. Cook, Mo.App., 161 S.W.2d 691 [1], Such evidence, admissible in a condemnation proceeding, by analogy was properly received in this proceeding. We observe, as did the trial court, that defendant Mason did not contradict or undertake to refute this testimony. There is another consideration. Defendant Mason, who was obligated to keep books and records from which an accurate accounting of the partnership operation could be made, breached his contract in this respect. By failing in this obligation he compelled his partners to resort to some other equitable method of estimating yields and arriving at a settlement. Necessarily such other methods, such as reasonable rental value or average net income reasonably to be expected, are less accurate and more indefinite than properly kept books and records. In that situation the court will accept the best available evidence, notwithstanding it does not measure up to the usual requirements of strict proof, as long as it is substantial evidence. With reference to appellants’ contention that the success or failure of a farming operation depends upon the efficiency, personal attention given and the farming methods adopted by the operator, and that Endicott lacked knowledge of the Adams operation in these respects, and therefore should not have been permitted to express himself, we have .this to say: A partner who has breached his duty to render an accurate accounting and who is held to account on the average net income theory will be held to a reasonable standard of efficiency and will be expected to account for estimated yields based upon modern methods of operation, such as En-dicott is shown to have employed. We conclude that there was substantial evidence to support a calculation based upon average net income of $20 per acre per year for the period 1946-1954.

Next, error is assigned in adjudging Garland and Mary Adams owners of the 187.375 acres, in providing for Garland’s option to purchase the 27½ acres, and decreeing him the owner in fee thereof upon his election to reduce his judgment by $1,617. Appellants complain of this action by the court on the ground that it was not shown that Garland has complied with the contract by paying his indebtedness to defendant Finley Mason, with interest; that the only issue before the court was that of the farm accounting, and therefore the court went beyond the issues in the case. These rulings are within the issues as framed by the pleadings. The petition sets up the interest of Garland and Mary Adams in the lands, asks for a determination of the rights of the parties therein, and prays for a decree granting to them their share of the property. The answer denies their interest, except as to the option to purchase created by the contract of July 29, 1938. More decisively, this point is res adjudicata, this Court having determined these matters on the second appeal.

Appellants’ Point IV is that “The court erred in holding the plaintiffs were entitled to credit on the mortgage payments on the farm.” This point is not well taken. The record shows that the court did not give plaintiffs credit for these payments but on the contrary held that defendants were entitled to credit for payments made by them on the mortgage indebtedness. The court, in its memorandum opinion denominated “Court’s Findings and Rulings,” in discussing “amounts to be charged against plaintiffs and as credits to defendants” and the amounts due plaintiffs, said, transcript p. 203: “This includes charges against plaintiffs on mortgage notes mentioned in contract or payments made on same by defendants.” Under “Adjustment Credits and Balances of Parties” the following amounts are shown as “Owed defendant” or “Owed defendants” in the following years for mortgage payments and interest thereon: $620.05, 1938; $604.36 and $9.80, 1939; $594.61 and $9.18, 1940; $567.18 and $6.36, 1941; $8,389.74 and $386.88, 1942. Transcript pp. 204-205. At page 209 the court, referring to credits given defendants for payments due them, stated that “in the above schedule are deductions for mortgage note payments with interest.” In the “Court’s Rulings on Motion for New Trial” the court, in support of its opinion, said, “The parties are informed in the opinion of the steps taken by the Court, setting out that most of the credits due defendants are returned checks, etc., found in defendants’ Exhibit C-l and A-16, through A-31. Credits due defendants for payments on mortgage notes were found in Exhibit, defendants’, bearing notation ‘Mortgage payments.’ ” The record does not support, but contradicts, appellants’ contention under Point IV.

Finally, appellants urge that the court erred in its audit and calculations in finding that defendants were indebted to plaintiffs because Endicott’s testimony that the farm should produce $20 per acre per year covered only the period 1946-1954; that what the farm produced from 1938 to 1946 is not shown by any testimony, or supported by any evidence whatever; that the audit, calculations and judgment of the court are therefore void, leaving nothing before the court except the accounting prepared by defendants’ accountant Wiley, which accounting, based on the records produced by Finley Mason, shows that plaintiffs are indebted to defendants in the sum of $116,880.96. This point must be sustained in part. However lenient the courts may be in relaxing the requirements of strict proof in a situation of this kind, there must be some substantial evidence upon which to base an accounting; and however reluctant we may be to remand this case for a fourth trial, we see no acceptable alternative.

While Mr. Wiley did the best he could with the available material we are unable to accept his work product for the same reasons that the accounting prepared by his predecessor, Mr. Fleet, was rejected by the Supreme Court on the second appeal. 358 S.W.2d, 1. c. 14. Wiley’s audit does not agree with the income tax returns for the years involved, or with Fleet’s audit, or with the referee’s report in the second trial. We agree with the trial judge that “there is such a lack of credible records that it is doubtful that an accurate audit could be made” and that “the failure to keep accurate records has resulted in a situation where a fair and accurate accounting cannot be made from the records provided the Court.”

Defendant Finley Mason, who did not testify on the second trial, appeared and testified at the third trial, but his testimony was of little value in clarifying and explaining the accounts. He said he kept the books, “such as they are,” but conceded that he was “not much of a bookkeeper”; that there was no regular accounting; that when Garland would ask how they came out on a sale of livestock he would ask him what he “had to have” and would give him a check for the money he needed at the time, not based on what was made in the transaction, but on immediate needs, calling it an “advance.” He could not explain the discrepancy between his income tax schedule for 1943, which showed a $10,427 profit, and his accountant’s report that the net profit for that year was $2,961. There was intermingling of funds. Mason was running several farms and a business. When he received money he put it in one account, if he did not spend it; he did not keep separate bank accounts for each one of his enterprises. He filed no partnership income tax returns. In his personal income tax returns he treated Garland and Bland as employees and reported as salaries the amounts paid them. The records he produced are fragmentary, incomplete, confusing, often incomprehensible and in many items suspect. Many checks bear notations made thereon years after the checks were issued. Much of the verification of checks depended upon memory and hearsay.

The trial judge, in a conscientious effort to arrive at a just result and to do equity as between these partners, wrote an exhaustive memorandum opinion analyzing the evidence and making his findings. On motion for new trial he wrote another opinion explaining his judgment in the light of the assignments of error in the motion. Although he labored long and hard we have concluded that the judgment must be reversed and the cause remanded for error in that part of the final accounting which takes into consideration a net profit of $20 per acre per year for the years 1938 to 1946. There is no evidence to support that part of the foundation of this judgment. The testimony of Mr. Endicott, which we have ruled sufficient to sustain that basis for the period 1946-1954, cannot be applied retroactively to the period 1938-1946. During the first part of the latter period we were coming out of a depression. During the latter part we were engaged in a war. It would be rank speculation, indeed it would contradict facts of which we may take judicial notice, to say that farm income in Clay County during those unusual years was the same as farm income in the postwar period 1946-1954, and that the average net income on the Adams farm was the same for both periods.

Accordingly, we confirm and uphold the trial court’s accounting in all other respects, but because of the error noted the cause must be remanded for the sole purpose of conducting a hearing to determine the average net income (or loss) per acre per year reasonably to have been expected from the efficient operation of the Adams farm by the use of modern farming methods during the period 1938-1946, and for the reentry of the same judgment, or the adjustment of the amounts awarded in the judgment up or down, depending on whether the evidence shall indicate that the per acre year estimate for that period was the same, or more or less than that reasonably to be expected for the period 1946-1954.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.

WELBORN, C, concurs.

HIGGINS, C., not participating.

PER CURIAM:

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. ST. LOUIS COUNTY, a Body Corporate and Politic, and Lawrence K. Roos, as Supervisor of St. Louis County, Missouri, Relators, v. Thomas C. DUNNE, Treasurer of St. Louis County, Missouri, Respondent.
    No. 53169.
    Supreme Court of Missouri. En Banc.
    Dec. 11, 1967.
    Joseph B. Moore, St. Louis County Counselor, Thomas W. Wehrle, Deputy County Counselor, Clayton, for relators.
    William J. Becker, Clayton, for respondent.
   DONNELLY, Judge.

This is an original proceeding instituted in this Court on the relation of St. Louis County and Lawrence K. Roos, as Supervisor of said County, for a peremptory mandamus, to compel respondent, as Treasurer of said County, to pay a county warrant drawn on the Expressway Fund.

The case of St. Louis County v. State Highway Commission, Mo.Sup., 409 S.W.2d 149, decided December 12, 1966, by Division No. 2 of this Court, was “an action for a declaratory judgment to determine if funds derived from certain general obligation bonds can be lawfully used by * * * St. Louis County to reimburse the * * * State Highway Commission of Missouri for the cost of acquiring right of way for a highway in St. Louis County designated State Route AC in accordance with a contract between the County and the Highway Commission.” It was determined at 1. c. 153: “that funds from the Expressway Fund can be lawfully appropriated in payment of the cost of acquiring the right of way for State Route AC.”

On March 21, 1967, Voucher No. 10 of the St. Louis County Bond Issue Projects Section was issued, requisitioning the sum of $486,242.04, chargeable to the Expressway Fund, and payable to the Collector of Revenue, Missouri State Highway Commission, for costs of right-of-way for State Route AC. On March 30, 1967, Warrant No. B 035168, in the amount of $486,242.04, payable to Collector of Revenue, Missouri State Highway, Jefferson City, from the Expressway Fund, was presented to respondent for issuance of a check. The warrant was approved and signed by Lawrence K. Roos, County Supervisor, and contains on its face a certification by Robert D. Crawford, County Auditor, “that there is sufficient unencumbered balance in the appropriation account against which this claim is charged to permit payment of same.” Respondent refuses to issue the check.

In State ex rel. Jackson County Library District v. Taylor, Mo.Sup., 396 S.W.2d 623, 625, we said: “ * * * Section 110.240 provides: ‘It shall be the duty of the county treasurer, upon presentation to him of any warrant drawn by the proper authority, if there shall be money enough in the depositary belonging to the fund upon which said warrant is drawn and out of which the same is payable, to draw his check as county treasurer upon a county depositary in favor of the legal holder of said warrant, * * This court has held: ‘ * * * It is the well-settled doctrine of this state that county treasurers are simply ministerial officers, and can be compelled to perform their duties. * * * “There is no doubt of the jurisdiction of this court by mandamus against county treasurers who refuse to pay claims properly audited.” ’ State ex rel. Wheeler v. Adams, supra, [161 Mo. 349] 61 S.W. 894 1. c. 897 [2], and cases there cited. ‘ * * * A ministerial act, as applied to a public officer, is defined to be an act or thing which he is required to perform by direction of legal authority upon a given state of facts, independent of what he may think of the propriety or impropriety of doing the act in the particular case. * * ’ State ex rel. Jones v. Cook, 174 Mo. 100, 73 S.W. 489, 493.”

The decision in St. Louis County v. State Highway Commission, supra, is controlling and is decisive of the questions raised in this proceeding. It is the duty of respondent to honor the warrant.

Our alternative writ of mandamus will be made peremptory, directing respondent to issue a check in the amount of $486,-242.04, on the Expressway Fund, and payable to Collector of Revenue, Missouri State Highway Commission, Jefferson City, Missouri. It is so ordered.

All concur.


author: HOUSER, Commissioner. WELBORN, Commissioner

text:
    Mildred HOUSMAN, Respondent, v. Benjamin FIDDYMENT, Appellant.
    No. 52185.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1967.

      Farrington & Curtis, Thomas Strong, Richard K. Wilson, Springfield, for plaintiff-respondent, Mildren Housman.
    William H. Sanders, Dean F. Arnold, Kansas City, W. Ray Daniel, B. H. Clamp-ett, Springfield, for defendant-appellant, Caldwell, Blackwell, Sanders & Matheny, Kansas City, Daniel, Clampett, Ellis, Rit-tershouse & Dalton, Springfield, of counsel.
   HOUSER, Commissioner.

Mildred Housman brought an action for $50,000 damages for personal injuries against Benjamin Fiddyment, who filed a counterclaim for $27,500 for personal injuries and property damages, all arising out of a head-on collision of their automobiles on Highway U, an 18-foot blacktop road in Christian County. There was a jury verdict for plaintiff for $16,000 on the petition and for plaintiff on the counterclaim. Defendant has appealed from the ensuing judgment.

The only question of liability tried and submitted was the question as to which of the two vehicles was across the center and traveling on the wrong side of the roadway. Each party contended that he was in the right and that the other was in the wrong in this respect.

Plaintiff’s evidence on liability consisted of the testimony of plaintiff; an expert witness named J. Stannard Baker; a traffic officer; a photographer and eighteen photographs, many of which were taken at the scene of the collision before the vehicles were moved.

Plaintiff testified that she was driving her 1951 Chevrolet sedan west at a speed of 25 m. p. h. or less “on the side of the road it belonged on,” on “her” side of the road all of the time; that at no time did she let any part of her car get across the center of the road; that she was as close as she could get to the right-hand side of the road. Just before the collision she “had a bare glance” of an approaching vehicle coming “far too fast” down the hill in her lane right in front of her, coming straight at her on her side of the road. Almost instantaneously after she saw the oncoming car and before she could “think one thought” the collision occurred and her car was knocked “back down the hill and off the road.” She did not remember whether she applied her brakes.

Defendant’s evidence on liability consisted of his own testimony, a photographer, a passerby who testified as to some skid marks he saw at the scene, a photograph of plaintiff’s vehicle and twenty-one photographs taken at the scene of the accident 12 or 13 days after the event. Defendant testified that he was driving his 1959 Chevrolet station wagon east at a speed of 52 or 53 m. p. h.; that he came down one hill and over another that turned slightly to his right; that he was going slightly downgrade when the collision occurred; that at all times his station wagon was on its own side of the road, with its right side “possibly two and a half, three foot from (his right-hand) side of the road” and its left side within a foot or two of the center of the road. Asked on cross-examination whether he could have drifted over and across the center of the road as he came around the curve and down the hill with the wagon loaded with 1000-1200 pounds of equipment, defendant stated “I don’t know whether I did for sure.” Asked if just before the impact he was cutting his vehicle back to the right, he answered “That’s right.” He first saw the other car when the vehicles were two or three car lengths apart. The other car was then “possibly eighteen, twenty inches over the center,” coming at a speed of 50 m. p. h. He did not know whether he had time to apply the brakes. He was rendered unconscious.

The only issue on this appeal is whether the court erred in admitting the opinion testimony of plaintiff's expert accidentologist or reconstructionist, Mr. Baker, “as to how, where and when the collision occurred.”

J. Stannard Baker is Director of Research and Development at the Traffic Institute of Northwestern University. A traffic engineer, he directs the major part of the research and development work at the institute. Educated as an electrical engineer, he was on the staff of the National Safety Council 1928-1945 and director of safety for the transit lines in Detroit one year. He has been associated at times with the institute since its founding in 1936. For 30 years he has observed, supervised and studied crashes of motor vehicles under controlled conditions. He teaches traffic reconstruction. He has written texts, manuals, guides, articles and books by the hundreds in this field. He invented devices to calculate speed of vehicles from skid marks. He has testified approximately 200 times in court as an expert. He received various awards for distinguished service and research in highway safety. He is proficient in the science of photogrammetry (making maps from photographs) and wrote a manual on the subject under a government grant.

His qualifications as an expert in the field of accident reconstruction are not challenged. On the contrary, defendant’s counsel conceded in argument that he has a position of importance in the field of reconstructing accidents and referred to him as undoubtedly highly qualified. Nor are his conclusion and opinions challenged as far as accuracy and truth are concerned. The question is one of admissibility of expert testimony.

Mr. Baker was informed of the makes and models of the two vehicles involved and was given the directions and speeds of the vehicles testified to by their drivers. He examined all of the photographs taken by both parties, and made a visual inspection of the scene of the accident approximately ten months after the event. Based upon the foregoing and drawing upon his experience in the field of accident reconstruction, he was permitted to testify as follows: From the photographic evidence of damage, showing how the vehicles collapsed, he gave his opinion as to the relative positions of the two vehicles at the moment of initial impact and at the moment of maximum engagement and illustrated their positions with scale drawings, as follows:

Relative positions at initial contact

Relative positions at maximum engagement

Mr. Baker testified as to the direction of the forces exerted against the vehicles at maximum engagement. The forces against plaintiff’s automobile were from the front and obliquely toward the left from the right. This caused her automobile to spin or rotate during the collision and until it came to rest. The forces against the station wagon were from the front but also from the left, back toward the center of the wagon. He placed arrows in the illustration, above left, to indicate the direction of the forces exerted on plaintiff’s automobile. Knowing that plaintiff’s automobile rotated, and that defendant’s station wagon did not rotate, and knowing the direction of the forces exerted against the vehicles, he could say approximately what relative positions the vehicles were in at their first contact.

Based upon the positions of the vehicles after they came to rest, and the principle of dynamics that the vehicle with the greater momentum will reverse the direction of movement of the vehicle with the lesser momentum and move it backwards in the direction from which it came, he concluded that the station wagon had considerably greater momentum and greater velocity or speed than plaintiff’s automobile at the time of collision.

He explained how the rear ends of automobiles colliding tend to raise up, taking most of the weight off the rear wheels and greatly increasing the weight on the front wheels; that physical signs are often left on the surface of the road to indicate the area where the impact occurred and that typical signs are scrub marks of tires, made as a result of the unusual downward force on the front wheels during maximum engagement. He described a scrub mark in a bituminous road as a smearing of the' bituminous material as a result of the application of heat, weight and friction; stated that a scrub mark is irregular in size, rather broad and dark, getting lighter as ■ the car moves, with a bulge at one end. It tapers off as the force on the road diminishes and usually is not straight but slightly curved, varies in width and is generally oblique or diagonal to the road. Of the several black marks shown in the photographs he identified one of them as a scrub mark made during maximum impact of the vehicles and pointed out its characteristic qualities. It was his opinion that the scrub mark was made by the left front wheel of the station wagon, and not by any other wheel of the station wagon or by any wheel of plaintiff’s automobile.

He explained why the debris was east of the point of maximum engagement, stating that debris, rust, road tar and mud, broken loose by shock, is moving and will continue to move in the direction in which the car is moving until it falls to the ground, in a trajectory; that when the forward movement of plaintiff’s automobile was stopped by the superior force of the station wagon striking it, the debris in that split second did not have a chance to reach the ground before the automobile, then traveling backwards at a probable speed of 25 m. p. h., overtook the debris and batted it back. He explained that this phenomenon occurs in experimental crashes.

He expressed the opinion that during engagement plaintiff’s automobile was traveling west nearly parallel with the road and that the station wagon was moving at an angle of 5 or 6° in a southeasterly direction. By photogrammetry he prepared an overlay to show the width of the road and its division into one-foot segments. Laid over the photograph depicting the portion of the road where the scrub mark appeared, the overlay demonstrated the center of the road (which did not have a painted center line). He testified that the overlay showed that the scrub mark started a foot and a half north of the center of the road; that the initial touching of the vehicles would be north of the scrub mark, and that the point of maximum engagement of the automobiles was approximately a foot and a half north of the center of the roadway. Plaintiff then sought to have the expert reconstruct to scale the position of the two vehicles with respect to the road at the time they came together, but the court refused to allow this on the ground that it would amount to asking him for “the ultimate conclusion in this case.” He also identified another mark (which went to the side of the road on the right) as that made by the right rear wheel of the station wagon. He accounted for other tire marks appearing in the photographs, giving his reasons why they were not made by the vehicles involved. He found no physical evidence of braking on the part of either of the automobiles, and accounted mathematically for their failure to apply brakes on the basis of the testimony that the vehicles were three car lengths apart when defendant first saw plaintiff’s automobile, taken in connection with the testimony of the parties as to their respective speeds; that there was not sufficient time before collision to activate the brakes. Shown defendant’s photographs taken 12 or 13 days after the accident, Mr. Baker excluded skid marks thereon as not having been made by plaintiff’s automobile, for reasons explained by him, based upon the physical appearance and characteristics of the marks, their failure to connect up to the mark leading to the wheel of plaintiff’s automobile, and for other reasons. The court refused to permit plaintiff to exhibit to the jury a scale map or plat prepared by the expert graphically showing the relative positions of the vehicles in various positions and the courses and directions they took at different stages from the moment of first contact until they came to a stop, for the assigned reason that this portrayal would usurp the function of the jury.

When jurors, for want of experience or knowledge of the subject under inquiry, are incapable of reaching an intelligent opinion without outside aid the courts out of necessity admit the testimony of experts in the field. Allowing an expert to give an opinion upon a subject of inquiry, instead of requiring that the witness give only facts, is an exception to the general rule that witnesses must state facts. “The exception is allowed from necessity.” Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Mo.App., 317 S.W.2d 841, 851; Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 606; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311, 322; Cole v. Empire District Electric Co., 331 Mo. 824, 55 S.W.2d 434, 438. The classic statement of the rule applied in determining whether expert testimony should be admitted in evidence (quoted in the above decisions) is that expressed in Benjamin v. Metropolitan St. Ry. Co., 133 Mo. 274, 34 S.W. 590, 593, more than 70 years ago: “It is the province of the jurors to draw all inference and conclusions from the evidence before them. The witnesses, as a general rule, must state facts, from which the jurors are to form their opinion. But when the facts are all stated, upon a subject of inquiry, if an intelligent opinion cannot be drawn therefrom by inexperienced persons, such as constitute the ordinary jury, an exception is made to the general rule, and persons who, by experience, observation, or knowledge, are peculiarly qualified to draw conclusions from such facts, are, for the purpose of aiding the jury, permitted to give their opinion. The exception is allowed from necessity. An expert witness, in a manner, discharges the functions of a juror; and his evidence should never be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved.”

In Homan v. Missouri Pac. R. Co., Mo. Sup., 334 Mo. 61, 64 S.W.3d 617, citing the Benjamin case, among others, this Court quoted with approval the following from 22 C.J. 639, § 733: “The necessity for such testimony arises where the subject matter of an inquiry is so far removed from the realm of common experience that the ordinary jury, even when the facts are fully placed before them, cannot fairly be expected to draw a correct inference therefrom, and at the same time no person competent to draw such an inference has personal knowledge of the facts.”

The determination of the question of necessity rests in the first instance in the sound discretion of the trial judge and his discretion in this respect will not be set aside in the absence of a showing of an abuse of discretion. Yocum v. Kansas City Public Service Co., Mo.Sup., 349 S.W.2d 860, 864, and authorities cited.

The expert testified through 143 pages of the transcript on a wide variety of subjects. Applying the rule of Benjamin and Homan to these various subjects we are driven to the conclusion that the trial court fell into error and must be found to have abused its discretion in its rulings as hereinafter discussed.

Particularly prejudicial was the expert’s testimony that the point of maximum engagement was a foot and a half to the north of the center of the road, and that the left front wheel of the station wagon made the scrub mark, which was definitely located at a point a foot and a half to defendant’s left of the center of the road. This was clearly the expression of an opinion as to the position of the station wagon immediately prior to the collision and as to the place of the point of impact. As such it was incompetent and inadmissible under the uniform rulings of the courts of of this state. Homan v. Missouri Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617, cert. den. 291 U.S. 683, 54 S.Ct. 561, 78 L.Ed. 1070; Homan v. Missouri Pac. R. Co., 335 Mo. 30, 70 S.W.2d 869; Cornwell v. Highway Motor Freight Line, 348 Mo. 19, 152 S.W.2d 10; Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242; Pulse v. Jones, Mo.Sup., 218 S.W.2d 553; Cox v. Wrinkle, Mo.Sup., 267 S. W.2d 648; Welch v. McNeely, Mo.Sup., 269 S.W.2d 871; Ryan v. Campbell “66” Express, Inc., Mo.Sup., 304 S.W.2d 825; Chester v. Shockley, Mo.Sup., 304 S.W.2d 831; Duncan v. Pinkston, Mo.Sup., 340 S.W.2d 753 [8]; Williams v. Cavender, Mo.Sup., 378 S.W.2d 537 [1]; Schneider v. Prentzler, Mo.Sup., 391 S.W.2d 307; Kratzer v. King, Mo.Sup., 401 S.W.2d 405 [7].

In Hamre this Court said, 209 S.W.2d, l.c. 249: “Whatever value the location of the debris or the center of the debris falling from two motor vehicles upon impact may have upon determining the point of impact is not, in our opinion, a proper subject for expert or opinion evidence. In this age of motor vehicles, knowledge upon such subject is not something not possessed by the ordinary person, hence the opinion evidence of Patrolman Harrison was incompetent, since it invaded the province of the jury.” The error was held to be one of several justifying the order granting a new trial. In Chester, 304 S.W.2d, l.c., 834, we said: “We think it clear that the trial court erred in overruling the objections heretofore noted and in permitting the officer, who was not an eyewitness, to give his opinion or conclusion, from the facts learned in his investigation, as to the point .of impact. In the case of Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, a highway patrolman who investigated the accident was permitted by the trial court, over objection, to state his opinion, based upon the location of debris that had fallen from the vehicles involved, as to the point of impact. Upon appeal this court held that such was not a proper subject for expert or opinion evidence, and hence the ruling which permitted the witness to give the challenged opinion was error. This court has adhered to that view since the adoption of the Hamre opinion. [Citing cases.]” In Pulse this Court agreed that if objection had been properly made to a diagram which indicated by arrows the line of movement and path of a car as having crossed the center line and having been on the wrong side at the time of the collision, and fixed the point of impact, and to the testimony of a highway patrolman that from his investigation the diagram showed where the cars were before the accident occurred, “its admission would have been reversible error.” 218 S.W.2d, l.c. 556. In Cox this Court held that permitting a highway patrolman to state his opinion that the debris was at the probable point of impact or collision was “erroneous.” In Welch it was ruled that an objection should have been sustained to a question asked a highway patrolman whether he was able to form an opinion as to “where the collision occurred.” 269 S.W.2d, l.c. 879 [24]. In Ryan we held that any conclusions or opinions contained in a highway patrol report made by an investigating officer “as to the point of impact would not have been admissible.” 304 S.W.2d, l.c. 828 [3], In Duncan we said: “A member of the Missouri Highway Patrol, not an eyewitness to the collision, was permitted to state his opinion based on the location of debris that the point of impact was west of the center line of the highway in the southbound lane of travel. Such evidence has been held to be improper as not being a proper subject of expert or opinion evidence and as invading the province of the jury.” 340 S.W.2d, l.c. 758 [8]. In Schneider it was said that the testimony of an investigating officer that it was his opinion that an area circled in red on a plat was the point of impact “would be an improper conclusion under Hamre v. Conger, * * *.” 391 S.W.2d, l.c. 310[4]. In Kratzer we ruled the exclusion of the testimony of a highway patrolman that when the two cars collided they left debris at the point of collision not error as against an objection that “this is a subject of expert testimony,” citing Hamre v. Conger for the rule that this is not a proper subject for expert or opinion evidence. 401 S.W.2d, l.c. 409 [7].

In Cornwell, Pulse, Cox and Williams the admission of the testimony did not effect a reversal for the reason that under the peculiar surrounding circumstances the improper testimony was not prejudicial, or because no proper objection was made, or for other technical reasons, but as indicated the principle was recognized. Williams specifically disclaimed any impairment of the views expressed in Hamre v. Conger and Duncan v. Pinkston.

Objections to the expert’s testimony on this phase of the inquiry were properly and timely made. We are not persuaded that its improper admission was cumulative merely, or that it constituted harmless error, having in mind the impressive qualifications, nationwide recognition and prestige of Mr. Baker in his field, and the effective and convincing manner in which he explained his testimony. Although the jurors had the right to disregard the expert’s conclusions, a juror would have needed strong convictions indeed to pit his own opinions against those of this renowned and articulate expert. We think the error affected the verdict in this case.

Notwithstanding the foregoing cases clearly indicate that opinion evidence as to the point of impact or collision is inadmissible in this state, respondent contends that they do not decide the questions presented on this appeal because these cases were “concerned with rather simple physical facts from which a jury could easily draw its own conclusions,” whereas in the case at bar there are contradictory marks of various kinds and debris “which would, without expert assistance, leave the average juror in a state of complete confusion.” Respondent leans heavily on Yocum v. Kansas City Public Service Co., Mo.Sup., 349 S.W.2d 860, and Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Mo. App., 317 S.W.2d 841. Hamre and Chester are distinguished in Yocum on the basis that the facts in those cases “were such that a jury possessed of the knowledge of the ordinary man of that time could as well determine the ‘point of impact’ as any other person, however expert he might be.” 349 S.W.2d, l.c. 864. Chester and its predecessors are distinguished in Central on the ground that the case there reviewed “involved technical mechanical knowledge” not possessed by ordinary jurors. In our judgment the rulings in Yocum and Central do not, under the facts of the case under review, open the way for the admission of Mr. Baker’s testimony that the wagon was traveling on the north side of the roadway immediately prior to the collision, and fixing the point of impact north of the center of the roadway. These subjects do not involve an application of the principles of physics, engineering, mechanics or other technical fields of science requiring specialized information. These questions could be determined by jurors possessed of the knowledge of ordinary men of the time. Automobile collision cases involving these subjects of inquiry are routinely decided by Missouri juries without the aid of expert witnesses.

For the same reasons the court erred in admitting Mr. Baker’s opinions on the following subjects: the positions of the vehicles with relation to each other and with relation to the roadway and the center thereof, at the time of collision; that there was no evidence of braking by either vehicle, and the expert’s accounting for or exclusion of other marks on the roadway as unrelated to this collision. In this case the jury had the benefit of the testimony of the drivers of both vehicles, who testified at length. Numerous photographs clearly revealed the terrain, roadway and surroundings. Many of these were taken shortly after the collision while the vehicles were still in their respective positions at which they came to rest, the highway patrolman was still investigating and the station wagon was still burning. The photographs of the two vehicles were made from several different angles. They graphically illustrated the damage done to the vehicles, the overlap between the two cars and how the force of the impact was applied and how it affected the vehicles. Marks on the surface of the roadway and the debris were plainly visible.

There was no necessity of resorting to the specialized knowledge and experience possessed by an expert in order for the jury to have reached a reasonably accurate-conclusion on the single issue presented in this case. In these modern days nearly all jurors are experienced motorists. Marks and debris on highways at the scenes of collisions, examples of the damage done when automobiles collide and the results of the interaction of vehicles colliding are matters of common observation. As a result the modern-day juror in the average case is “just as capable of reasoning backward from the evidence and making a correct analysis of what happened as is the expert.” Carmody v. Aho, 251 Minn. 19, 86 N.W.2d 692. The marks, with the possible exception of the scrub mark, and the debris, were as susceptible to interpretation by the jury as by the expert. The raw physical facts were sufficiently self explanatory and related to the oral testimony that the average juror, on the basis of ordinary knowledge, common sense and practical experience gained in the common experiences of life, could reasonably be expected to draw correct inferences therefrom and determine with reasonable accuracy which vehicle was traveling on the wrong side of the road at time of impact. A comprehension of the above-mentioned subjects, under the circumstances of this submission, was within the competence of the average juror.

The ultimate issue for decision (which vehicle was traveling on the wrong side of the center of the roadway when the impact occurred) was a matter which, under the facts and circumstances in evidence, was within the ken and competence of the average juror and it was prejudicial error to admit the opinion of the expert, over the objection of the defendant, as to the point of impact; the positions of the vehicles with reference to the center of the roadway; that there was no evidence of braking and as to unrelated marks.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

HOLMAN, C. J., and HENLEY, EAGER, DONNELLY and STORCK-MAN, JJ., concur.

SEILER, J., dissents and adopts as his dissenting opinion the Memorandum of WELBORN, C.

FINCH, J., dissents and concurs in dissenting opinion of SEILER, J.

MEMORANDUM OF DISSENT

WELBORN, Commissioner

(dissenting).

I must respectfully disagree with the opinion of HOUSER, C.

“The question of the qualification of a witness as an expert in the field concerning which his testimony is sought and the necessity for admission of expert testimony in a given situation rests in the first instance in the sound discretion of the trial court, and its decision in those respects is not to be set aside in the absence of showing of an abuse of discretion.” (emphasis supplied) Yocum v. Kansas City Public Service Company, Mo.Sup., 349 S.W.2d 860, 864 [1], See also Jones v. Smith, Mo.Sup., 372 S.W.2d 71, 78 [11,12]; Dillenschneider v. Campbell, Mo.App., 350 S.W.2d 260, 266 [10-12]; Edwards v. Rudowicz, Mo.App., 368 S.W.2d 503, 506-507 [4-7].

These cases recognize the necessity for flexibility in determining the admissibility of expert testimony. A wide range of discretion must be granted the trial judge in admitting or excluding such testimony. Appellant’s counsel, at the trial, so acknowledged, stating: “Whether or not [the witness] testifies is solely up to Your Honor; it’s purely discretionary as to whether his opinion would be beneficial to this jury; and if it is a situation where the jury needs the benefit of expert advice.” Determination of whether or not the trial court has abused its discretion necessarily requires that the circumstances of the particular case be considered, as well as the qualification of the particular witness and the subject of his testimony. In this case, the proper determination requires consideration of more than the bare outline of the testimony of the plaintiff and of the defendant, followed, by a consideration, in a vacuum, as it were, of the expert’s testimony. At the time that the expert testimony was offered, plaintiff had testified that he was on the right side of the road at the time of the collision. Plaintiff’s counsel had read from defendant’s deposition the defendant’s statement that he was on his right side of the road at all times. Obviously, the crux of the case was to be, as it turned out to be, just which vehicle was where at the time of collision. Before the expert witness was offered, numerous photographs, offered by both parties, had been introduced into evidence. Some were taken at the scene of the collision shortly after it occurred, clearly showing the position of the cars as they had stopped following the collision. Other photographs introduced had been taken subsequently. The photographs revealed numerous tire marks on the pavement. Plaintiff was obviously more interested in certain of the marks. Defendant, on the other hand, tended to emphasize other markings appearing in the photographs. Clearly, just which of the markings appearing in the photographs were actually related to the collision would have a larger bearing upon the outcome of the case.

The situation was further complicated by the fact that the center of the roadway was unmarked. Each party may have honestly believed that he was on the proper side of the road. Obviously, at least one of them was mistaken. Furthermore, the opportunity of each driver to observe the other vehicle before the collision was extremely limited.

Such was the situation which the trial court had before it when Baker was offered 'as a witness. After the witness had been interrogated about his qualifications, there was no objection based upon the inadequacy of the witness’s credentials to testify as an expert in the field of accident reconstruction. Appellant’s general objection to his testimony was stated as follows: “I’m objecting to-his testifying in the capacity as a reconstructionist and the direct basis for my objection is that the factual evidence, the demonstrable evidence in photographs, and the availability of * * * lay witnesses is sufficiently clear, and there is no need for expert testimony to assist this jury in analyzing any aspect of this factual situation, and that by so permitting this man to testify we are invading the province of the jury in deciding the ultimate fact as to the position of these vehicles at the time of impact.” This objection, overruled by the trial court, was obviously without merit for at least two reasons. In the first place, the sweeping exclusionary rule for which appellant contended was clearly contrary to numerous decisions of appellate courts in this state recognizing that there are certain well-recognized areas for expert testimony regarding the facts of ah automobile collision. See Yocum v. Kansas City Public Service Company, Mo.Sup., 349 S.W.2d 860; Jones v. Smith, Mo.Sup., 372 S.W.2d 71; O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129; Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Mo.App., 317 S.W.2d 841. In the second place, the objection that the testimony would invade the province of the jury was not a valid objection. Numerous cases have so held. See State v. Paglino, Mo.Sup., 319 S.W.2d 613, 624 [13]; Mann v. Grim-Smith Hospital and Clinic, 347 Mo. 348, 147 S.W.2d 606, 608; Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Mo.App., 317 S.W.2d 841, 851.

Turning then to the specific matters which the opinion holds should have been excluded, the first is the position of the vehicles with relation to each other at the time of initial contact and at maximum engagement, the matters illustrated by the diagrams in the opinion. The witness first stated his opinion as to the relative location of the vehicles upon original contact. However, before the witness was permitted to express such an opinion, the trial court required him to state the basis for his opinion. The witness proceeded at length to state the matters which he had considered. They will not here be detailed, but, upon hearing them, the trial court was quite clearly warranted in concluding that the witness could properly express an opinion on the matter. In any event, the prejudice to appellant from the answer does not appear, inasmuch as defendant’s statement from his deposition, previously read into evidence, was that he was swerving to his right at the time of the collision, which is what the witness concluded.

The next matter relates to the position of the two vehicles at the time of maximum impact. Again, the witness explained at length the factors upon which his opinion was based, which included fundamental laws of dynamics and detailed examination of the damage incurred as revealed by photographic evidence. The trial court was not required to reject the opinion finally given because it was based upon photographic evidence available to the jury and upon generally known principles of dynamics. The witness, by virtue of his training and experience, was in a position to relate the evidence of damage and the fundamental principles of dynamics, and thereby help the jury to understand what had occurred.

As for the testimony of the witness as to the position of the vehicles in relation to the roadway at the time of collision, the testimony to which appellant points as objectionable related to the direction of travel of the vehicles “while they were still engaged with each other, touching each other before they separated.” The witness’s testimony was that the plaintiff’s sedan was traveling nearly parallel to the road in a westerly direction and the defendant’s station wagon at an angle of five or six degrees in an easterly direction. No objection was made as to the adequacy of the basis for this conclusion. Appellant here does not attempt to demonstrate the prejudicial effect of this particular item of testimony, and, finally, it is, at least as to the direction of defendant’s travel, consistent with defendant’s statement that he was swerving to the right at the time of the collision. Insofar as the witness’s statement in this regard is concerned, it was, at the most, merely cumulative.

The testimony that neither driver applied his brakes and that there was no evidence at the scene of braking by either vehicle is, likewise, merely cumulative and corroborative of the testimony of the drivers, neither of whom testified that the brakes were applied.

As for the testimony about the markings on the pavement, it is clear that not all could have been connected with the collision. However, the photographic evidence was not so clear that the assistance of an expert in eliminating the marks not connected with the collision could not be said to have been helpful.

The opinion finds “particularly prejudicial” testimony as to the location of the point of maximum impact, and the testimony that the left front wheel of defendant’s vehicle made the “scrub” mark, which was clearly in the plaintiff’s lane of traffic. The opinion concludes that this testimony amounted to testimony as to the point of impact.

However, the opinion finds no fault with the witness’s testimony concerning the cause, nature and characteristics of scrub marks, including the witness’s conclusion that a scrub mark is the product of the maximum engagement of the vehicles. The witness’s identification of a mark in the exhibits as a scrub mark is not questioned, nor is the witness’s testimony on the location of the various marks, including the scrub mark as one and one-half feet on plaintiff’s side of the road. This evidence, for all practical purposes, amounts to testimony by the witness as to the point of impact.

In any event, a rigid “no opinion testimony as to the point of impact” rule should not be applied. That rule had its origin in dictum in Hamre v. Conger, 209 S.W.2d 242. In that case, the court pointed out that there was no preliminary inquiry to determine the experience of the patrolman “to qualify him as an expert to determine the point of impact from the location of the debris.” 209 S.W.2d 247. That was sufficient reason for the error in admitting his testimony. The remainder of the court’s discussion of opinion evidence upon the point of impact was wholly dictum. However, the dictum by frequent repetition has now assumed the status of a rigid exclusionary rule quite inconsistent with the generally accepted principle that the admission of expert testimony is primarily a discretionary matter in the particular case. It is also to be noted that the court ultimately concluded in Hamre that the opinion evidence was inadmissible “since it invaded the province of the jury.” 209 S.W.2d 249. If, as the cases above cited hold, that is an unsound ground of obj ection to the admission of opinion evidence, it is an equally unsound basis for a judicial opinion.

To my mind, the trial court, in the circumstances of this case, properly concluded that the evidence which the opinion of Judge Houser holds was erroneously admitted was necessary to permit the jury to arrive at the facts upon which their ultimate judgment must rest. Automobile accidents may be matters of common occurrence these days, but that does not mean that ordinary jurors are so familiar with their characteristics and consequences that trained experts, applying laws of physics or dynamics, cannot point out a wide variety of factors which the untrained observer does not see or consider. Given a properly trained expert who is able to exhibit a sound basis for his opinions, a trial court, in a given case, should not be precluded from exercising its judgment and discretion in allowing the jury the benefit of such assistance.

There is a wide range of respectable authority which would support the admission of the evidence here. See: Miller v. Pillsbury Company, 33 Ill.2d 514, 211 N.E.2d 733; Dudek v. Popp, 373 Mich. 300, 129 N.W.2d 393; Frank’s Plastering Company v. Koenig, 8th Cir., 341 F.2d 257; Moss v. Associated Transport, Inc., D.C., Tenn., 33 F.R.D. 335; Annotation, “Admissibility of opinion or evidence as to point of impact or collision in motor vehicle accident case,” 66 A.L.R.2d 1048.

In my opinion, the trial court did not err and the judgment should be affirmed.

      . Many of which are cited in the annotation “Opinion Evidence — Point of Collision,” 66 A.L.R.2d 1048.

      . Respondent also cites O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129, in which an expert witness testified to a wide range of subjects. O’Neill is not authority for respondent’s position, for no point was made in that case that the court erred in admitting the expert’s testimony, and the court did not pass upon its admissibility.


author: BARRETT, Commissioner.

text:
    Virgil Millard POLLARD, Plaintiff-Appellant, v. Thomas A. DAVID, Director, Department of Revenue, Dale Belsche, and Carl Kistler, Defendants-Respondents.
    No. 52612.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.
    James J. Wheeler, Keytesville, for plaintiff-appellant.
    Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

On September 3, 1966, the appellant Pollard refused to take a “chemical test of his breath” (RSMo Supp.1959, § 564.441, V.A.M.S.) and, effective October 9, 1966, the Department of Revenue, pursuant to § 564.444, RSMo Supp.1959, V.A.M.S., revoked his driver’s license for the period of one year. Five days after the revocation Pollard instituted this action in two counts for “hearing on revocation of driver’s license and for restraining order” also as provided by § 564.444. In his two-count petition Pollard alleged that the officers involved had no lawful right or cause to arrest him and so in the first count he prayed that the court determine the lawfulness of his arrest and “order his driver’s license be restored.” In the second count he stated that he operated a general store at Indian Grove, that it was necessary to his business that he operate a motor vehicle and so he prayed an order restraining the Department of Revenue from revoking his license. The court found all issues for the defendants, (the plaintiff joined the arresting officers as parties) and Pollard has appealed. “Thomas A. David, Director, Department of Revenue” is a defendant-respondent and was represented in the trial of the cause, it is claimed, inferentially if not directly, that appellant’s state constitutional rights have been violated and therefore initial appellate jurisdiction is appropriately in this court. Const.Mo. Art. 5, Sec. 3, V.A.M.S. and compare Wilson v. Morris, Mo., 369 S.W.2d 402; Puckett v. Morris, Mo., 388 S.W.2d 787 and Shepherd v. Department of Revenue, Mo., 370 S.W.2d 381.

Nevertheless, upon this record another fundamental jurisdictional problem presents itself and may not be ignored. Fugel v. Becker, Mo., 2 S.W.2d 743, 746. Mr. Pollard’s driver’s or operator’s license was revoked for the period of one year, effective October 9, 1966, — “the director shall revoke the license of the person refusing to take the test for a period of not more than one year.” RSMo Supp.1959, § 564.444, V.A.M.S. The cause was submitted to this court on September 21, 1967, and thus during the pendency of the appeal the one-year suspension of Mr. Pollard’s license by its own terms expired on October 9, 1967, and the problem is whether by mere lapse of time the cause has become moot and, therefore, in the court’s discretion should be dismissed, here “because the situation has so changed that the relief sought cannot be granted” (State ex rel. Myers v. Shinnick, Mo., 19 S.W.2d 676, 678), or “wherein no practical relief can follow a judicial determination of the controversy.” Joplin Waterworks Co. v. Jasper County, 327 Mo. 964, 38 S.W.2d 1068, 1075. And in further explanation of “moot case” see State ex rel. Donnell v. Searcy, 347 Mo. 1052, 152 S.W.2d 8 and Koch v. Board of Regents, Mo.App., 265 S.W.2d 421. As to the prayer for in-junctive relief, one of the purposes of an injunction is to prevent future mischief, not “to restrain acts that have already occurred, or that are impossible of future occurrence because of the passage of time.” Hurtgen v. Gasche, Mo.App., 227 S.W.2d 494, 498.

Several of the above cited cases are illustrative of the fundamental principle involved but precisely analogous are Personal Finance Company v. Day, 349 Mo. 1139, 164 S.W.2d 273, and Euclid Terrace Corp. v. Golterman Enterprises, Mo.App., 327 S.W.2d 542. In the Day case the appellant was enjoined from entering into a competing employment for the period of one year following the termination of a contract. While the cause was pending on appeal “the injunction decree expired by its own terms,” as a consequence “no controverted issue remained in the case” and therefore the case was dismissed as moot. In the Euclid Terrace case the appellants attempted to redeem certain real estate from foreclosure, they failed, however, to comply with the statute and tender or pay the sums prerequisite to redemption within one year which “expired while this appeal was pending.” The court reviewed a number of cases and ended by dismissing the cause as moot because any judgment rendered “could not have any practical effect upon any then existing controversy.” (327 S.W.2d loe. cit. 544-545). For the reasons indicated, this cause became moot while under submission and for that reason the appeal is dismissed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

FINCH, P. J., DONNELLY, J., and ADAMS, Special Judge, concur.

EAGER, J., not sitting.


author: STORCKMAN, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. NORTHEAST BUILDING COMPANY et al., Defendants, Albert E. Carlson and Marie A. L. Carlson, Respondents.
    No. 52303.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.

      Robert L. Hyder, Jefferson City, Earl H. Schrader, Jr., Charles J. Brennan, Kansas City, for appellant.
    Ralph H. Duggins, Jefferson City, for respondents.
   STORCKMAN, Judge.

This is an action brought by the State Highway Commission to condemn for highway purposes certain improved real estate located in Jackson County, Missouri. The tract with which we are concerned was owned by Albert E. Carlson and Marie A. L. Carlson. These defendants and the Highway Commission both filed exceptions to the $64,000 award of the Commissioners. The trial of the issue of damages resulted in a jury verdict for defendants in the sum of $55,000. The defendants’ motion for a new trial was sustained on the ground that the trial court had erroneously excluded evidence offered by the defendants as to the value of certain machinery and fixtures in the buildings. The Highway Commission has appealed and seeks to have the judgment reversed and the cause remanded with directions to reinstate the verdict of the jury. The sole issue on appeal is whether the trial court erred in granting a new trial because of its exclusion of this evidence.

The property in question, located in the northwest quadrant of the intersection of Independence Avenue and Cherry Street in Kansas City, was appropriated in its entirety. The land area of the tract was in excess of 21,000 square feet. On it were three principal buildings so connected that a person could go from one to another without going outside. The property was purchased sometime in the 1930’s and was used for a laundry and cleaning business until about two years before the property was condemned on September 6, 1955. The building on the corner was three stories in height; the one adjoining it on the west was two stories. The third main building ran north from the second building and was also two stories in height. Construction records were not available, but the buildings were estimated to be fifty years old or more. There was a building on the north part of the premises known as the engine or boiler room which housed boilers and other machinery. Also on the north side were two garages and an area for parking automobiles. On the eastern side of the building running north there was a loading dock. The buildings had been braced and strengthened to make them suitable for conducting a laundry business and supporting heavy machinery. Immediately prior to the taking, a portion of the corner building was used by the owners as a pickup and delivery station for laundry which was taken out and serviced elsewhere. A neon sign company and Roberts Sales Company were tenants in other portions of the premises. There was evidence that the premises were suitable for certain kinds of warehousing and storage and had been used for that purpose to a limited extent.

For the landowners, Mr. Charles J. Schmelzer testified that the fair market value of the land and improvements was $85,000; he did not include boilers and other fixtures attached to the building in his appraisal. Mr. Carlson, as one of the owners, testified the total value of the property taken including fixtures was $95,000. On the other hand, Mr. Tom Vanderpool testified for the Highway Commission that the fair market value of the land and improvements was $46,000 and Mr. Sewall W. Mudge put the value at $49,880. The plaintiff’s experts put no value on the engine room machinery. The critical question on this appeal is whether the trial court was justified in granting a new trial by reason of its refusal to permit defendants’ expert witness to testify regarding the value of boilers and other fixtures in the engine room.

Mr. Maurice V. Viets, a registered mechanical engineer, had been a consulting engineer for twenty-seven years. He had been engaged in appraising mechanical equipment and power plants; no objection was made as to his qualifications. He described the mechanical equipment found in defendants’ engine and boiler room and stated that he had appraised the value of these items by deducting the observed depreciation from their replacement cost which gave him the remaining live value. When the witness was asked the cost of one of the boilers described, plaintiff’s counsel asked and was granted permission to “ask a few preliminary questions of the witness” and the following occurred:

“Q (By Mr. Brennan) Mr. Viets, as I understand what you have done, you have made an appraisal of certain machinery.
A That’s right.
“Q Have you made any appraisal of anything besides that in connection with this property?
A No, sir.
MR. BRENNAN: Based upon the the witness’s response, Your Honor, I move to — I object to the question put by counsel on the basis that no complete appraisal was made by the the witness in connection with the fair market value.
THE COURT: The objection is sustained.”

The witness’ testimony was terminated at this point and he was excused.

The next witness was one of the owners, Albert E. Carlson, who testified that the property was located in a M-l zone for light manufacturing. He testified as Mr. Schmelzer had that some of the machinery and fixtures were attached to the premises and not removable, meaning that they could not be removed without damage to the building or the equipment. The boilers, water heaters, water softeners, water tanks, the pumps and the old engine and all that goes to make up a power plant in a laundry were in that classification. Mr. Carlson was permitted to give an opinion as to the value of the property with the fixtures and equipment in place, which value he fixed at a little better than $95,000.

One of the plaintiff’s expert witnesses, Mr. Vanderpool, testified that the old boilers, hot water heaters and water softeners did not contribute to the value of the property and that he did not consider them at all. The other expert, Mr. Mudge, did not state whether he put any value on these fixtures.

The appellant’s position on appeal in some respects is not consistent with that taken in the trial court. Appellant’s brief asserts in its first point that (a) the defendants wholly failed to make an offer of proof respecting the value of the machinery, (b) the trial court allowed defendants ample opportunity to adduce evidence of the value of the machinery and such evidence was adduced when owner Carlson testified, and (c) that witness Viets’s testimony as to the separate value was properly excluded “in that said witness was unable to lay a foundation to justify such separate valuation and since there were very substantial issues still pending as to whether said machinery was so affixed to the building as to be part of the realty appropriated, and as to whether such machinery enhanced the value of the property as a whole.” The second point is somewhat similar but proceeds on the theory of waiver. It asserts that if any such error occurred it is “solely chargeable to defendants themselves on account of their own conduct” in that (a) they “failed to make offer of proof” and (b) they made no effort to produce evidence of the separate value of such machinery “after a foundation for admission of the same had been received”. As we will later demonstrate the objection that a proper foundation had not been laid was not interposed in the trial court. In support of its contention that an offer of proof must be made when evidence is rejected and that a failure to do so precludes review of the action of the trial court, the plaintiff cites Keeshan v. Embassy Investment Company, Mo.App., 303 S.W.2d 666, and Pitha v. St. Louis Public Service Company, Mo., 273 S.W.2d 176.

The purpose of the requirement that certain formalities and rules be observed with respect to offers of proof is to to make certain that the trial court and opposing counsel understand what evidence is being offered and its relevancy and materiality. Stipp v. Tsutomi Karasawa, Mo., 318 S.W.2d 172, 175 [5], It follows that the reason for a formal offer of proof does not exist if the trial court and counsel by other means are sufficiently advised as to what the testimony of the witness will probably be if he is allowed to testify. Merk v. St. Louis Public Service Company, Mo., 299 S.W.2d 446, 449-450 [3, 4]; Wahl v. Cunningham, 320 Mo. 57, 6 S.W.2d 576, 586-587 [9], 67 A.L.R. 489. See also State ex rel. State Highway Commission v. Bruening, Mo., 326 S.W.2d 305, 310 [4, 5].

As heretofore noted, the plaintiff ascertained by its questions that the witness Veits had appraised no part of the property other than the boilers and similar machinery. Counsel’s objection then was that “no complete appraisal was made by the witness in connection with the fair market value.” The plaintiff’s theory of exclusion is further disclosed by objections previously made during the testimony of defendants' real estate expert. Defendants’ counsel had asked Mr. Schmelzer to tell how he arrived at the valuation of the various buildings. The plaintiff objected on the ground that the witness was being asked “to give the values piece-meal”. The objection was sustained and the witness was then asked how he arrived at the valuation of building No. 1. Objection was made “for the same reason” which was also sustained.' The witness was then asked the general question as to what value he placed on the improvements on the property to which the objection was again made by the plaintiff that “we are going into this thing piece-meal”. The court called counsel to the bench and stated ■“you are going to have to arrive at an overall value first”. The court then asked counsel for the plaintiff if that was the substance of his objection and counsel replied in the affirmative. On the entire record it is evident that plaintiff’s theory was that the evidence was incompetent because it related to the fixtures alone and did not cover the entire property, the land and improvements. It also appears that the trial court and counsel fully understood that the objection went to a category of evidence being offered. In these circumstances it was not necessary for the defendants to make a formal offer of proof in order to render the ruling eligible for review by the trial and appellate courts.

The defendants were not required to recall their expert on the value of fixtures at a later time and re-offer the testimony because there was no apparent change during the trial in the court’s view of the theory on which the evidence was rejected. The testimony of Mr. Carlson was in conformity with the concept of valuation as an entirety. As an owner he was qualified to give an opinion as to the value of his property although he was not a real estate expert. Shelby County R-IV School District v. Herman, Mo., 392 S.W.2d 609, 613 [7].

On appeal the plaintiff undertakes to transform or present another ground for its objection to the testimony of Mr. Viets. The plaintiff now asserts that a proper foundation had not been laid for this sort of evidence because there was no proof that the machinery was a part of the realty until Mr. Carlson testified. The only objections to evidence that can be considered on appeal are those that are made in the trial court. Mitchell v. Robinson, Mo., 360 S.W.2d 673, 676 [1]; Hall v. Clark, Mo., 298 S.W.2d 344, 350 [14] ; Span v. Jackson, Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190, 200 [20]. This is an entirely different objection and since it was not put forward at the trial it cannot be considered now.

Moreover, the plaintiff has not taken into consideration evidence appearing previously in the transcript. From Mr. Viets’s description of the machinery in the engine room, it might be inferred that the boilers and similar machinery were fixtures. Mr. Schmel-zer, the defendants’ real estate expert, described the boilers and other machinery in the engine room and stated that they were attached to the building according to his best recollection. It is not clear from the record whether Mr. Schmelzer failed to give this particular property a value because he thought it was worthless or whether he refrained from doing so because he did not consider himself an expert as to the value of this special kind of fixtures.

The plaintiff places considerable reliance on State ex rel. State Highway Commission v. Dockery, Mo., 300 S.W.2d 444. This case, however, supports the order granting a new trial rather than plaintiff’s contentions. We are referred to Dockery primarily to support the proposition that machinery and equipment installed in and permanently attached to a factory building become a part of the realty and an element of damages in a condemnation action to the extent they enhance the value of the property as a whole. In further definition of its present position the plaintiff asserts in written argument that the attempt to adduce evidence of the separate value of the machinery and fixtures “was improper because at the time no foundation had been laid to justify admission of the same.” The transcript discloses, however, that no such issue was raised or ruled in the trial court and, hence, cannot be entertained here.

In the Dockery case a paint manufacturing plant was condemned and the State Highway Commission appealed from the award primarily on the ground that the trial court erred in permitting defendant’s witnesses to estimate the damages by totalling separate estimates of the value of the land, the value of the factory building and the value of the machinery and equipment installed in the factory. 300 S.W.2d at page 446. This court denied the contention especially since “the elements” were taken in relation to one another which is another way of estimating the total damage. 300 S.W.2d at page 451. The feasibility and sometimes the necessity of separating these elements is demonstrated by the expert evidence adduced by the Highway Commission in the Dockery case. Witness Garton disclaimed any expert knowledge as to the value of the paint manufacturing machinery but as a real estate expert valued the improvements and the land separately and totalled them. Witness Brooks, a qualified appraiser of machinery, testified only to the value of the major items of the machinery and aggregated them. Witness Stiel, a building contractor, testified only to the depreciated value of the building. Witness Schneider, an expert appraiser of real estate, testified to the value of the land and improvements exclusive of the machinery because he had no expert knowledge of that item of property. Thus the two expert real estate appraisers did not value the paint making equipment because their expertise did not extend to this special kind of machinery. There are bound to be situations where value of the various elements of damages going to make the whole must be obtained from different sources. See also In re Armory Site in Kansas City, Mo., 282 S.W.2d 464, 471-472 [16], and State ex rel. State Highway Commission v. Pope, 228 Mo.App. 888, 74 S.W.2d 265, 268 [6, 7].

The appellant’s final contention is that the court erred in granting a new trial because Mr. Carlson and all of the defendants’ witnesses did consider, or should be presumed to have considered the value, if any, of such machinery as a part of the realty. The transcript of the evidence does not support the plaintiff in this regard. The only authority cited holds an assignment insufficient because it did not name the witness whose testimony was challenged. Mr. Viets was the only witness purporting to be an expert appraiser of this kind of property and the assignment of error in the motion for new trial gave all the information needed. The contention is denied.

Appellate courts are more liberal in upholding the trial court’s action granting a new trial than in reversing and remanding a judgment on the same grounds. Mochar Sales Co. v. Meyer, Mo., 373 S.W.2d 911, 916 [10], and cases therein cited. We have considered all of the appellant’s contentions and find them to be without merit.

Accordingly, the order granting a new trial is affirmed and the cause remanded.

All of the Judges concur.


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    The CITY OF ST. LOUIS, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, Walter C. Haeussler, Hugo Wurdack and Frank H. Alewel, Trustees et al., Defendants, and Emil E. Hoechst et al., Appellants.
    No. 52365.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1967.

      Thomas F. McGuire, Robert W. Van Dillen, John M. Williams, St. Louis, for respondent.
    Rassieur, Long, Yawitz, Koenig & Schnieder, Elliott P. Koenig, Roger R. Fagerberg, St. Louis, Walter L. Floyd, Jr., Clayton, Joseph A. Kirkwood, St. Louis, for defendants-appellants.
    James S. McClellan, Jerome M. McLaughlin, Willson, Cunningham & McClellan, St. Louis, for Walter C. Haeussler, Hugo Wurdack and Frank H. Alewel, Trustees.
   DONNELLY, Judge.

This is a proceeding by the City of St. Louis to condemn land in the city for highway purposes. Appellants are owners of residential property facing Lindell Boulevard. On December 19, 1908, the Forest Park Land Company, for the use and benefit of said owners of said residential properties, and others, deeded to three trustees land generally north and to the rear of the residential properties. Under this deed, which relates to the “Catlin Tract,” and is recorded in Book 2191, Page 131 of the St. Louis Recorder’s office, easements were granted for the benefit of appellants, and others, for ingress and egress and for other purposes. The city seeks to take by condemnation: (1) fifty-two feet from the rear of the residential properties, (2) the trust property above-mentioned, and (3) other properties. The trust property is referred to by the parties as “Item 18,” and is the only property involved in this appeal.

On May 4, 1961, the Permanent Condemnation Commission filed its First Report awarding damages as to all parcels. Appellants filed exceptions to the awards made for the taking of fifty-two feet from the rear of their residential properties. These individual exceptions have not been tried. Also, exceptions were filed as to Item 18, the trust property.

On September 21, 1962, the following order was entered by the trial court:

“Pursuant to oral application of the parties, it is ordered by the Court in accordance with Section 510.180(2) R.S. 1949 that the issue of adequacy of the award of the commissioners for Parcel No. 18 be tried in advance of all other issues in this cause, and that said issue be separated from the remaining issues for trial, adjudication and appeal.”

On December 27, 1962, the award as to Item 18 was held inadequate. On February 7, 1963, the Permanent Condemnation Commission filed its Second Report. Exceptions were filed and, on June 20, 1963, the award was again held inadequate. On February 14, 1964, the Permanent Condemnation Commission filed its Third Report, awarding damages in the amount of $43,-773.05 for the taking of Item 18. A trial without a jury was then held on the exceptions to the Third Report and the matter was taken under submission on October 21, 1965. On May 17, 1966, the trial court overruled the exceptions of all parties to the Third Report, and, on June 30, 1966, ordered the award as to Item 18 paid to the present trustees. Motions for new trial were filed and overruled, and appellants, owners of the residential properties, appealed.

Appellants asserted in their motion for new trial and contend on appeal that the award as to Item 18 is grossly inadequate and not supported by competent and substantial evidence.

In reviewing the adequacy of an award in condemnation, the “weight and credibility of the evidence is for the trial court. Appellate courts do not weigh conflicting evidence on appeal in condemnation cases. City of St. Louis v. Franklin Bk., 341 Mo. 913, 110 S.W.2d 734, 735 [1] ; City of St. Louis v. Pope, Mo.Sup., 121 S.W.2d 861, 863 [3]; City of St. Louis v. Franklin Bk., Mo.Sup., 107 S.W. 2d 3, 4 [3] (where respondent introduced no testimony). It is not the law that the commissioners’ report should be set aside unless supported by competent and substantial evidence at the hearing on the exceptions. The respondent may but is not required to introduce evidence in support of the report. ‘The report is presumptively valid and must stand until overthrown by sufficient competent evidence, and the burden was on the exceptor to overthrow it.’ The determination of whether the report is right or wrong is within the judicial discretion of the trial court, and appellate courts should not interfere unless the award is so grossly excessive or inadequate as to establish an abuse of discretion or ■ arbitrary action. City of St. Louis v. Franklin Bk., 341 Mo. 913, 110 S.W.2d 734, 736; City of St. Louis v. Rossi, 332 Mo. 498, 58 S.W.2d 965, 966 [1]; City of St. Louis v. Pope, Mo.Sup., 121 S.W.2d 861, 864 [4].” City of St. Louis v. Pandjiris Weldment Co., Mo.Sup., 270 S.W.2d 17, 20 [5, 6].

Competent evidence was elicited from an experienced real estate appraiser supporting the award of the Commission. The only testimony offered in opposition was that of one of the appellants who testified that they “valued * * * [their] easement in the * * * [Item 18 land] at $1.50 per square foot.” Appellants’ contention is without merit.

Appellants further asserted in their motion for new trial and contend by inference on appeal that the trial court “erred in failing to find, adjudge and decree that the aforesaid Defendants had property rights in the nature of easements in, over, upon and along land described in said Item 18 of the Commissioners’ Report by reason of a deed of record recorded in Book 2191, Page 131 of the St. Louis Recorder’s Office, that the City of St. Louis has taken said property rights and easements of the aforesaid Defendants without compensation, and that, therefore, the aforesaid Defendants have been damaged and that the taking of said property rights and easements in said described parcels of real estate constitute a taking of property without just compensation contrary to the provisions of Section 26, Article 1 of the Constitution of the State of Missouri and Amendment 5 to the Constitution of the United States: *

As a general rule, where there are different interests or estates in property taken by condemnation, the proper procedure is “to ascertain the entire compensation as though the property belonged to one person and then apportion this sum among the different parties , according to their respective rights.” State ex rel. State Highway Commission v. Mahon, Mo.App., 350 S.W.2d 111, 113. This Court established the general rule, and recognized an exception thereto, in State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, at page 82, 69 A.L.R. 1256, as follows: “ * * * The aggregate values of all the particular interests and estates in a single parcel of land do not exceed the value of the property as a whole, which the state takes by paramount title for public use; when, therefore, that value is duly ascertained and paid in money to the owners of the various interests, or into court for them, constitutional requirements are fully complied with. The fund is substituted for the property taken. The fact that the owners of the constitutive interests may not agree as to the apportionment among themselves of the sum awarded is merely an incident growing out of such combined ownership for which the condemnor is in no way responsible. There may be instances in which, owing to exceptional circumstances, the damages to the various interests when added together exceed the value of the property as a whole; in such case the particular interests should of course be separately appraised, because the owner of each is entitled to be compensated in damages for the amount of his interest taken.”

There is no evidence in the record to support a claim that this case involves an instance “in which, owing to exceptional circumstances, the damages to the various interests when added together exceed the value of the property as a whole.” In United States v. 11.06 Acres of Land in City of St. Louis, Mo., et al., 89 F.Supp. 852, and In re West Tenth Street, Borough of Brooklyn, City of New York, 267 N.Y. 212, 196 N.E. 30, 98 A.L.R. 634, the courts recognized that the value of a servient estate (here, the trust property taken) can find no other expression than in the value of the dominant estate (here, the residential properties) which it served. How-ever, there is no evidence to this effect in this case except a general conclusion that the values of the residential properties “have been decreased to a degree.” If appellants “wished to press the point, specific evidence should have been offered.” Kansas City v. Stith, Mo.Sup., 409 S.W.2d 193, 197. On this record, the general rule •applies. The Commission properly ascertained “the entire compensation as though the property belonged to one person.”

The final question for determination is whether the trial court finally disposed of the award as to Item 18 when it was ordered paid to the trustees. In City of St. Louis v. Rossi, 333 Mo. 1092, 1104, 64 S.W. 2d 600, 605-606, this Court referred to State ex rel. McCaskill v. Hall, supra, and said:

“The result of that case was that this court approved the method there adopted by the commissioners of assessing one sum for the damages to all the owners of each lot or tract taken, leaving the owners of the fee, lessees, trustees, mortgagees, and sub-lessees to apply to the circuit court for apportionment of the damages between them according to their variouá interests. It would seem that, if the matter of determining the parties entitled to share in the damages awarded for land taken, and the portion thereof each was entitled to receive, was left to the commissioners, under the procedure provided by the St. Louis charter, we would have a board of real estate experts passing upon all kinds of intricate questions of law in what is, perhaps, the most technical branch of the law, real property. * * * We can imagine the snarls and tangles which would result when they were called upon to determine, not only such questions as arise between owners, lessees, sublessees, and mortgagees, but also when they should undertake to decide whether some of the interests were vested or contingent remainders, whether there had been a merger of estates, whether trusts existed, and, if so, whether they were active or passive and the rights between life tenants, remaindermen, trustees, and beneficiaries. It would be more practical to limit the activities of these commissions to the field with which they are familiar, the consideration of values of property taken, damages to remaining property resulting from the taking, and benefits reflected in increased values resulting from the improvement; and to leave the questions of law which necessarily arise in apportioning the damages when there are several interests in any particular tract to the tribunal which has judicial authority. In short, leave values to the board of commissioners, and law to the court.”

On February 10, 1966, the trial court held a “distribution” hearing as to Item 18, and, on June 30, 1966, ordered the award as to Item 18 paid to the trustees. The award, under the circumstances, takes the place of the land interests appropriated and the fund thus created becomes a substitute for them. The trustees recognize that appellants, and other owners in the Catlin Tract, are entitled to some form of distribution. They state in their brief: “The Trial Court felt that the fairest and best way to resolve the question was to pay the award to the Trustees, who are the owners of all of the property involved and who are answerable to all of the property owners of the Catlin Tract for the proper expenditure or distribution of the funds thus received. We submit that this decision was a sound one and well within the powers of the Court.”

We believe that appellants are entitled to a final adjudication of their interests, if any, in the award. City of St. Louis v. Rossi, supra; Land Clearance for Redevelopment Authority of Kansas City v. Dunn, Mo.Sup., 416 S.W.2d 948. The award should be apportioned between the trustees, appellants, and other owners in the Catlin Tract, as their respective interests, if any, may appear, upon such notice and hearing as due process requires. The trustees may, or may not, be entitled to that portion of the award which represents payment for improvements on the land taken. Appellants may, or may not, be required to share the award with other owners in the Catlin Tract. These issues were not fully litigated in the trial court. Therefore, we express no opinion on this appeal as to the nature or extent of these respective interests.

The judgment is affirmed on the issue of damages assessed for the property taken by condemnation. The City of St. Louis is no longer in the case insofar as Item 18 is concerned. The judgment is reversed and the cause remanded on the issue of apportionment, with directions that the trial court proceed in accordance with this opinion. The costs of this appeal are assessed against appellants.

All concur.