author: TIREY, Justice.

text:
    AMERICAN MOTORISTS INSURANCE CO. Appellant, v. J. R. ELLISON, Appellee.
    No. 4027.
    Court of Civil Appeals of Texas. Waco.
    Dec. 20, 1962.
    Rehearing Denied Jan. 17, 1963.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Gordon Wellborn, Houston, Phenix & Keeling, Rex Houston, Henderson, L. L. Geren, Carl Cannon, Groesbeck, for ap-pellee.
   TIREY, Justice.

This is a compensation case. On the verdict the Court set aside the award of the Industrial Accident Board and decreed that Ellison recover from American Motorists Insurance Company the sum of $2106.-30, representing past due compensation for 59 weeks through the 12th day of December 1961 (the company being given credit for 22 weeks compensation previously paid) ; that Ellison recover the further sum of $9947.12 as compensation in a lump sum for future total disability after allowing the statutory discount. It approved his attorneys’ contract and out of the sum awarded to Ellison, awarded to his attorneys $3616.-03; and further awarded $140.00 for medical expenses. The judgment provided for 4% interest as provided in the statute and taxed all costs against American Motorists Insurance Company.

The judgment is assailed on six (6) points. One is that “The Court erred in failing to submit the ultimate controlling issues essential to sustain its judgment for plaintiff for general injury, or issues from which it could be determined whether plaintiff’s incapacity resulted from a specific injury, or a specific injury which extended to and affected other portions of his body.” Pertinent to this discussion the claimant alleged substantially that he received serious injuries to his right foot, leg, heel and low back which produced a general injury to his body and which has caused a general debility to his body, and that he is totally and permanently disabled as a result of the injuries he received. Claimant further alleged that if it be found that he actually received a specific injury or an injury only to a specific member of his body then in the alternative he alleged that the injuries to the specific member of his body became infected and same has moved into the muscles of his right leg and into his hip, and that the original injury and the effects thereof have caused his low back, his spinal, muscular and skeletal system to become affected and disabled thereby, disabling him generally and producing a general disability to his body. Issue One of the Court’s charge complained of is:

“Do you find from a preponderance of the evidence that J. R. Ellison sustained an injury to his body on or about the 24th day of May, 1960?”
To which the jury answered “Yes”.

In the Court’s charge we find this instruction:

“By the term ‘injury’ as used in this charge is meant damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom, or the excitement, acceleration or aggravation of any disease previously or subsequently existing, by reason of such damage or harm to the physical structure of the body.”

In Appellant’s brief we find the following statements:

“ * * * plaintiff below, alleged by alternative pleading that he suffered a general injury to his body, a specific injury, and a specific injury which extended to and affected his body generally, resulting in total and permanent disability.
******
‘“From the Court’s charge and the answers thereto in this case, it is impossible to tell whether the jury found that plaintiff-appellee suffered a spe■cific injury to his right foot and heel, •or a specific injury which extended to ’his body generally, or simultaneous :general and specific injuries. The appellant admits, and has at all times -admitted, that appellee sustained a specific injury to his right foot and heel, hut denies the general injury alleged hy appellee. The Court’s charge, however, does not distinguish between •these possibilities, nor does it submit the controlling issues necessary to sustain the Court’s judgment of a general injury for appellee.”

It is our view that appellant’s contention was foreclosed against it by our Supreme Court in Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280, in which cause our Supreme Court carefully reviewed the previous decisions of the ■Courts of Civil Appeal pertinent to the •point raised by appellant, and held contrary to appellant’s contention. Issue One of the ■Court’s charge in this cause follows (except for the omission of the words “an accidental” to which there was no exception) the form of the issue suggested by the Supreme Court in the Boswell case. Our Supreme Court in Maston v. Texas Employers’ Ins. Ass’n, 160 Tex. 439, 331 S.W.2d 907, adhered to the doctrine announced in the Boswell case, supra. Our Supreme •Court again, on December 5, 1962, in McCartney v. Aetna Casualty & Surety Co., 362 S.W.2d 838, reaffirmed the doctrine announced in the Boswell and the Maston cases, supra, Aetna Casualty & Surety Co., Tex.Civ.App., 355 S.W.2d 264. But, it is appellant’s contention that it is entitled to a reversal under the doctrine announced 'by our Supreme Court in Texas Gen. Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651. We think a careful reading of the Scott case, and the other cases here cited, •shows that the Scott case has no application to the case at bar because the Scott case was not submitted according to the rule announced in the Boswell case, supra, as was the case at bar, and the other cases here cited. The Court submitted the issue as to whether incapacity was confined to loss of use of the foot. Accordingly, Point One is overruled.

Appellant’s Points 2 and 3 are to the effect that the Court erred: (1) In overruling its plea to the jurisdiction of the Court and its plea in abatement on the ground of appellee’s failure to give notice of his intention not to abide by the award of the Board within 20 days from such award; (2) In refusing to submit its requested Special Issues 16 and 17 inquiring whether the appellee gave notice and filed his claim for an alleged back injury within the statutory time limits. As we understand Points 2 and 3 they assert error because the Court refused to submit its requested Issues 16 and 17 inquiring if ap-pellee gave notice and filed claim for back injury within 6 months from May 24, I960* The record shows that appellee filed his initial claim for compensation on September 12, 1960; that on May 24, 1960, his right foot caught in between motor clutch and guard, and cut his heel and bruised his toes and twisted his ankle. On January 27, 1961, the Board entered an order awarding appellee 22 weeks of compensation for total disability and $3.50 per week for 103 weeks representing 10% permanent loss of use of the foot. On February 2, 1961, appellee filed written application with the Board to tender an amended claim. We quote the pertinent parts:

“Comes now J. R. Ellison and within twenty days after the date of the award made by the Industrial Accident Board in this cause, on the 27th day of January, 1961, and makes the following facts known to this Board:
“1. That he herewith tenders an amended claim for compensation.
“2. That he respectfully asks this Honorable Board to pass on this amended claim immediately in order that his rights might he protected.
“3. He would respectfully show unto this Honorable Board that since the filing of his original claim a change of conditions has occurred; that the injuries he received on the 24th day of May 1960, have now brought about a. condition necessitating surgery; that the- condition brought about has enlarged his injuries and, said injuries have now extended to his entire right foot and leg and which injuries, infection and previous surgery which has occurred produces a general injury of which he now desires this Honorable .Board to pass upon..
“WHEREFORE, ciaimant, J. R. Ellison, respectfully requests this Honorable Board: (1) to permit him to file his amended claim as herein tendered; (2) that this Honorable Board set aside the award rendered in this cause on the 27th day of January, 1961, and render a new or an amended award as this Honorable Board finds the facts to be; (3) to enter such orders that may be necessary and proper within twenty days from the 27th day of January, 1961, in order that the rights of all parties might be protected.”

On February 7, 1961, the Board set aside its award of January 27, 1961, and advised the appellee and his attorneys that the award of January 27, 1961, was not a final award and was not appealable and, thereafter, on March 14, 1961, entered an award that a change of condition had been found and awarded appellee 22 weeks of total incapacity and 10% loss of the use of the leg being $3.50 per week for 178 weeks. The appellee, on March 17, 1961, notified the Board that he would not abide by the award and within 20 days filed suit in the District Court of Limestone County.

It is appellant’s position that the Board fóuhd'á' cha'ngé of condition which extended to the leg only, and since .the evidence failed to show that there had been a change in the appellee’s condition, and that since the appellee did not give notice of his intention not to abide by the ruling of -the Board within 20 days from January 27,. 1961, that its plea to the jurisdiction should have been sustained. As we understand appellant’s position, its view is grounded on the authority of Hartford Accident and Indemnity Company v. Choate, 126 Tex. 368, 89 S.W.2d 205, Com.App., opinion adopted, and authorities there cited. We overrule this contention. The amended " claim filed by appellee did allege a change in- his condition, and that he had sustained a general injury, and we believe that under the liberal construction applied! to the Employers Liability Act that appellee had the right to appeal from this award of the Board, ’and that when he filed his suit in the district court - of Limestone-County that that Court had appellate juris-, diction to determine whether or not ap-pellee had sustained a general injury. The opinion in the Choate case, supra, as a basis-for its decision, points out: “The other, injuries to other parts of his body did not. flow or result from the specific injury to. the eye, nor is it so contended.” We think the amended claim here is exactly to the contrary, and that the general injury has sufficient support in the evidence. Evidence was tendered showing complaints of back pain by the claimant while in the hospital within a week after the injury;, that the original injury was not just a. blow to the right heel and foot, but was-actually a fall and a twisting of the entire: body, and the evidence finally showing from the medical witnesses of an actual back-injury. .

Appellant further complains that Issues-27 and 28 of the Court’s main charge are-immaterial and that they are not supported-by the evidence. These issues are:

“27. Do you find from a preponder-! " anee of the evidence, if any, that there ^ was not a substantial change in plains' tiff’s condition, subsequent to January-27, 1961, and prior to March 14, 1961 ?” To which the jury answered: “There was a change.”
“28. Do you find from a preponderance of the evidence that at the time of submitting his claim to the Industrial Accident Board and prior to the hearing of January 27, 1961, plaintiff, J. R. Ellison, was mistaken as to the nature of the injuries, if any, to his right foot; that is, whether the same extended to and affected other parts of his body?” To which the jury answered: “He was mistaken.”

We find that Issue 27 of the ■Court’s main charge is in the exact language of appellant’s requested issue 28; that issue 28 of the Court’s main charge is in the exact language as appellant’s requested issue No. 29. It is our view that the evidence is sufficient to support the jury’s answer to each of the foregoing is.sues, and accordingly appellant’s Points 2 and 3 are overruled.

Appellant’s 4th Point is:

“The Court erred in failing to submit issues from which it could be determined whether appellee’s incapacity, if any, resulted from a prior condition in no way connected with his employment.”

We have carefully considered the Court’s charge with reference to the above ■matter, and we think that it is covered and the charge is in approved form.

Issue 22 is:

“Do you find from a preponderance of the evidence, if any, that plaintiff’s incapacity, if any, is confined solely to the right leg at or above the knee?” To which the jury answered: “No.”

Issue 23 is :

'“Do you find from a preponderance of ■the evidence that the prior injury of April 19, 1953, has not contributed to the incapacity, if any you have found to plaintiff?” To which the jury answered: “It has not contributed.” (Since the jury answered the above issue as here quoted it was in- , structed not to answer Issue No. 24).

Issue 25 is:

“Do you find from a preponderance of the evidence, if any, that the incapacity to plaintiff’s body generally is due solely to the use by plaintiff of his right foot, at or below the knee ?” To which the jury answered: “No.”

Issue 26 is:

“To you find from a preponderance of the evidence, if any, that plaintiff’s incapacity, if any, is due solely to the use by plaintiff of his right leg?” To which the jury answered: “No.”

Going back to appellant’s requested issues, we find that its requested Issue No. 23 was given by the Court in his main charge and is numbered 22, heretofore quoted.

We find that appellant’s requested special issue 24 was given by the Court in the exact language in its main charge, but under the Court’s instruction the jury did not answer that issue.

Since we are of the view that the Court properly submitted the matter complained of, and since the answers of the jury to the foregoing issues are supported by sufficient evidence, Point 4 is overruled.

Appellant’s 5th Point is that the trial Court erred “ * * * in allowing the jury to speculate upon and consider matters which are not properly cognizable in this case, such as alleged pain, disc surgery and spinal fusions, medical services not claimed in compliance with the Workmen’s Compensation Act, an improper demonstration of appellee’s foot, and interpretations of medical symbols by a lay witness.”

It is true that pain and suffering are not compensable under the Compensation Act, but we do not understand the cases to hold that the question of pain and suffering accompanying an injury should be excluded completely from the jury’s consideration when it is attempting to determine the exact extent and duration of disability to perform labor. It is our view that the amount of pain accompanying an injury is quite important in determining whether or not the injury is disabling, but, of course, the pain and suffering is not compensable, and this is a matter that is controlled by the charge. We think our view above expressed is not in conflict with the factual situation detailed in Traders & Gen. Ins. Co. v. Rockey, Tex.Civ.App., 278 S.W.2d 490; Hood v. Tex. Ind. Ins. Co. 146 Tex. 522, 209 S.W.2d 345; Bailey v. Amer. Gen. Ins. Co. 154 Tex. 430, 279 S.W.2d 315; Gen. Acc. Fire and Life Assur. Corp. v. Murphy, Tex.Civ.App, 339 S.W.2d 392, Pt. 3, (n. r. e.); Coleman v. Hartford Acc. and Ind. Co, Tex.Civ.App., 297 S.W.2d 236, Pt. 4; Denbow v. Standard Acc. Ins. Co, 143 Tex. 455, 186 S.W.2d 236; Tex. Employers’ Ins. Ass’n v. Polk, Tex.Civ.App., 269 S.W.2d 582, (n. r. e.); Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463; Employers Mutual Liability Ins. Co. of Wis. v. Gallardo, Tex.Civ.App., 359 S.W.2d 933, (n. r. e.).

Appellant further complains about special issues 14, 15 and 16 of the Court’s main charge inquiring whether services of Dr. Bone were reasonably required by ap-pellee and whether appellant refused to furnish those services, and whether $75.00 is a reasonable charge for the services. Issue No. 17 asked the same question regarding the services of Dr. DeCharles. Issue No. 19 inquired whether $65.00 was a reasonable charge for his services. Appellant relies on the doctrine stated in Security Union Ins. Co. v. McClurkin, Tex.Civ.App., 35 S.W.2d 240, writ, ref, and because of the 1957 amendment to Art. 8306, Sec. 7f. Vernon’s Ann.R.C.S.

We find in the statement of facts that the insurance adjuster told plaintiff, “If I got a release (from the doctor) I would have to be responsible for my medical care thereafter, that they couldn’t be responsible for it.” Dr. Smith, (the insurance company’s medical witness) testified to the effect that he advised the insurance company in December 1960, at the time he released plaintiff, that he would have to watch him for another six months-at least before he could be sure of his permanent condition. In the report of Dr. Bone of February 3, 1961, which was filed with the Industrial Accident Board and introduced in evidence, the report stated,, among other things: “Treatment is being continued.” Appellant complains of plaintiff removing his shoe in the courtroom and. demonstrating the use of his foot to the jury and showing how the injury affected his walking. It is true that appellant objected to this procedure, but we see nothing about the demonstration to inflame the minds of the jury concerning the injury. Moreover, appellant’s counsel on cross-examination asked plaintiff to leave the witness stand, and stand and walk before the jury, which was the same type of demonstration as used on direct examination... Appellant’s Point 5 is overruled.

Appellant’s 6th Point is that the Court erred “ * * * in allowing appellee’s. own examining doctor, who was not shown . to have treated appellee, to testify concerning appellee’s subjective symptoms.”

The record shows that Dr. De-Charles saw appellee more than once. He • testified specifically:

“Q. Llave you had occasion to examine and treat J. R. Ellison?
“A. Yes.
“Q. Did you take a history from Mr. Ellison when you first saw him?'
' If you did, state whether or not the history was taken from him to be used by you as his physician in diagnosing his condition and treating him?
“A. Yes.”

'He further testified to the effect the x-rays were taken for the purpose of diagnosing • and treating Ellison, and that he gave ■medicine to Ellison and prescribed a built-up heel for his shoe, and he testified fur- ■ ther to the effect that he was asked to treat Ellison on the occasion of his first visit.

It is our view that appellant’s 6th point does not present error, and it is overruled.

We have given our most careful consideration to appellant’s pleadings, its exceptions to the charge and the special issues it requested, and we are of the view -that the Court’s charge correctly submitted -the issues tendered by the pleadings and the evidence, and that the assigned errors •of appellant with reference thereto are not ■ well founded, and each is overruled.

The judgment of the trial court is af- • firmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    PAK-MOR MANUFACTURING COMPANY, Appellant, v. W. P. BROWN et al., Appellees.
    No. 14048.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 19, 1962.
    Rehearings Denied Jan. 23, 1963.

      Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellant.
    Bruce Waitz, Morris L. Collins, V. H. McFarland, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by W. P. Brown and Contractors Machinery Company, a corporation, against Pak-Mor Manufacturing Company, a corporation, to abate a nuisance resulting from the blocking by defendant of the flowing of flood waters across its land along a claimed public easement. Plaintiffs also sought to recover damages and mandatory relief. The trial was to a jury and, based upon findings favorable to plaintiffs, judgment was rendered against defendant, from which judgment Pak-Mor Manufacturing Company has prosecuted this appeal.

The land here involved is located near the intersection of U. S. Highway 281 South and Southeast Military Drive (Loop 13) in the southern part of the City of San Antonio. On the northeast corner of the above intersection is property belonging, to the Gulf Oil Company, which is not directly involved herein. Just north of said property is an alleged sixty-foot easement, and adjoining this alleged easement on the north is the property belonging to W. P. Brown, which he contends has been flooded by appellant by damming up this up this alleged public easement. Just east of the Gulf property is a small tract fronting on Military Drive belonging to M. L. Rossman. Appellant’s property lies east of the Rossman property and the Brown property. Appellant constructed a fence and a dike across the west end of its property, which extends across the alleged 60-foot easement, thus preventing flood waters, from flowing in an easterly direction along the claimed easement, and resulting in the flooding of the property belonging to Brown.

The flood waters here involved come from the west and north, down to the west side of U. S. Highway 281, overflowing the highway, and would drain down the alleged sixty-foot easement except for the dike placed across it. There are other obstructions in the alleged easement, not here involved. Appellant contends it was conclusively established by the evidence that, due to development west and north of its property and by the building of the highway, together with certain raised traffic islands, the flood waters have been greatly increased and concentrated, and therefore there are no longer natural flood waters but man-made flood waters. Appellees contend that the water involved is not man-made flood water but natural flood water, which follows a natural drainage down to U. S. Highway 281, thence across the highway and onto the alleged easement which ■is the natural drainage of'the'land. ‘At-t.ached to this opinion is a diagram which shows the lands here involved, together with the alleged easement.

Appendix I

The jury, in answer to special issues, made the following findings:

1.That the 60-foot strip of land in question provided natural drainage for the land lying to the north and west thereof, at and before the time it was dedicated to the public by T. H. Keoun and others on April 25, 1939.

2. That the 60-foot strip of land in question was utilized by the State Highway Department to provide drainage from Highway 281 after it was dedicated to the public by deed of April 25, 1939.

3. That the 60-foot strip of land was utilized by the City of San Antonio to provide drainage from Highway 281 after the area was annexed by the City of San Antonio.

4. That the 60-foot strip of land was used as a public road after its dedication to the public on April 25, 1939.

5. That E. E. Hood did not rely upon the dedication to the public of said 60-foot strip of land when he purchased abutting property.

6. That H. L. Saunders relied upon the dedication to the public of said 60-foot strip of land when he purchased abutting property.

7. That Simeon W. Goodwin relied upon the dedication to the public of said 60-foot strip when he purchased abutting property.

8. That W. A. Chadwick, N. A. Surtus and J. S. Philips relied upon the dedication of said 60-foot strip when they purchased abutting property.

9. That the obstruction in the drainage ditch on October 11, 1961, caused appellees’ property to be flooded on that date.

10. That $100.00 would fairly and reasonably compensate appellee Contractors Machinery Company for the damages caused by the flooding.

11. That the obstruction in and over the drainage ditch caused appellees’ property to be flooded on November 13, 1961.

12. That $150.00 would fairly and reasonably compensate appellee Contractors Machinery Company for the damages caused by that flooding.

13. That the obstruction placed in the drainage ditch by Pak-Mor Manufacturing Company, and as it existed on October 11, 1961, created a nuisance.

14. That $500.00 would fairly and reasonably compensate Contractors Machinery Company for its annoyance, inconvenience and discomfort which resulted from that obstruction.

15. That the construction of the dike-by Pak-Mor Manufacturing Company along its west property line and over the-drainage ditch, as it existed on November 13, 1961, created a nuisance.

16. That $750.00 would fairly and reasonably compensate Contractors Machinery-Company, for its annoyance, inconvenience and discomfort which resulted from that obstruction.

17. That Pak-Mor Manufacturing Company, through its owners, acted maliciously in obstructing the drainage ditch in question as such obstruction existed on October-11, 1961.

18. That Pak-Mor Manufacturing Company, through its owners, acted maliciously in erecting a dike along the west line of its property and across the 60-foot strip-of land.

19. That Contractors Machinery Company is entitled to receive $4,500.00 as-exemplary damages.

Appellant contends that there did not exist a sixty-foot easement across its-land for drainage purposes on October 11, 1961, when it constructed the dike across the west side of its property and across the sixty-foot strip here involved. We do not agree.

The record shows and the jury found that prior to the time any improvements were made in the entire area there was a natural drainage of flood waters from the west to the east along the sixty-foot strip of land in dispute and parts of appellant’s land. The record further shows G. W. Ware and R. W. Moore are the common source of title to all of the land here involved. T. H. Keoun, independent executor of the G. W. Ware Estate and manager of what he refers to as the Ware-Moore Estates, was, through his agent, Thurman Barrett, engaged in developing these and adjacent lands in the year 1939. By deed dated April 25, 1939, T. H. Keoun et al., deeded W. P. Brown’s land,. together with another parcel, to W. A. Chadwick et al., and in the deed dedicated the sixty-foot strip to the public by the following language, to-wit:

“* * * This deed further dedicates to the use of the pubUc a strip 60 feet more or less wide and adjoining the above described property on the South, and running East approximately 500 feet to the intersection of a street now graded on the ground, said street running North and South from Military Drive, to the South line of the 60 foot strip more or less hereby dedicated. The street referred to as running North and South from Military Drive is hereby also dedicated to the public.” (Emphasis ours.)

At this time the area involved lay outside of the corporate limits of the City of San Antonio.

On or about December 1, 1949, some ten years after the above dedication had been made, appellant, Pak-Mor Manufacturing Company, acquired its first tract of land in this area, i. e., the parcel fronting on Loop 13, and designated as Parcel #5. It thereafter acquired Parcels Nos. 2 and 3, at a time when each of them had been worked out and abandoned as gravel pits. Surface water from Highway 281 ran down a ditch on the alleged 60-foot easement into the excavated area. In 1961, appellant acquired soil from the San Antonio River Authority and filled in such abandoned gravel pits, not only to the original level of the land but above that level, and then proceeded to pave much of the same. Appellant then constructed a dike along its west property line, between appellees’ land and its land, and on across the alleged 60-foot easement, and along the boundary between appellant’s land and the Rossman tract. These obstructions of the natural flow of the flood water is the alleged nuisance that appellees seek to abate. Appellant also constructed a chain mesh fence just west of this dike.

We feel that the language used in the deed dated April 25, 1939, from T. H. Keoun et al., to W. A. Chadwick et al., is a clear dedication of the sixty-foot strip to the public, at least for drainage and street purposes. The fact that a new street is mentioned in the deed in connection with the description of the land conveyed, and that thereafter the easement was called a street, does not have the effect of making the dedication one for street purposes only. The record shows that the State of Texas accepted this dedication of the 60-foot strip, by thereafter using it for drainage of the flood waters from State Highway 281, and for other purposes, and after the area was annexed to the City of San Antonio the City used it for drainage and other purposes. We thus conclude that the dedication was complete in every respect, and was at least for drainage and street purposes. City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601; 26 C.J.S. Dedication § 65, p. 559.

Whether a dedicated use is restricted or unrestricted, is determined by the intention of the dedicator or dedicators at the time the dedication was made. Where the dedication is made by a deed, the intention of the dedicator should, if possible, be de-terminated from the four corners of the deed, which is a question of law. We feel that the intention of the dedicators in this instance is plainly shown by the deed. The 60-foot strip is referred to as a new road in the first part of the deed, but when the dedicators arrive at the part of the deed in which the dedication is made it is only referred to as a strip of land sixty feet wide and about 500 feet long. Apparently dedicators were careful not to say that the dedication was made only for use as a street; they simply said, is “dedicated to the public.” This is in contrast to their language in dedicating the sixty-foot strip running north and south from Loop 13, which is described as a street. It seems to us that the dedication of the sixty-foot strip south of what is now the Brown land, was intended for drainage and street purposes. We find no ambiguity in the deed as to the intention of the dedicators, but if there was any such ambiguity, then and in that event the intent should be determined from all the facts and circumstances surrounding the execution of the deed, which is a question of fact. The Question was not submitted to the jury, and appellant did not so request, therefore it must be presumed to have been found by the court in such a manner as to support the judgment rendered. The evidence would support such an implied finding by the court, if in fact the court did not expressly so find. There had always been trouble in this area with flood waters. Keoun and others were developing this area and selling building lots along the east side of Highway 281. When houses were built along these lots there would have to be some place for the flood waters to go through. The natural thing was for a strip to be set aside for this flood water to go through, as the drainage in this area was generally from west to east.

The dedication being without restrictions, the State and afterwards the City were free to devote the strip to drainage purposes. City of Tyler v. Smith County, supra; Bruker v. Burgess and Town Council of Borough of Carlisle, 376 Pa. 330, 102 A.2d 418; Schien v. City of Virden, 5 Ill.2d 494, 126 N.E.2d 201; Norton v. City of Gainesville, 211 Ga. 387, 86 S.E.2d 234; Flutterer v. City of Sacramento, 196 Cal. 248, 237 P. 48.

We feel that the trial court went too far in describing the sixty-foot strip by metes and bounds and declaring and establishing it as a public easement for all purposes. This was not a suit for declaratory judgment. It will be borne in mind that neither the State nor City is a party to this suit, it is a suit between individuals. It appears that persons not parties to this suit have encroached, either rightfully or wrongfully, upon this easement, and if ap-pellees wanted their rights determined in this lawsuit they should have made such persons parties to this suit. This encroachment has occurred west of appellant’s lands. We set aside that part of the trial court’s judgment which describes the easement by metes and bounds, and declares and establishes it “as a public easement for any and all lawful public purposes for which the public or any governmental body thereof may wish to make of same.” The judgment should have been confined to settling the private rights of the parties to this suit.

The record shows that after the sixty-foot strip had been dedicated by T. H. Keoun et al., in 1939, there were quitclaim deeds executed by several persons to various parts of this sixty-foot strip, including one such deed by appellee Brown to appellant, relating to a strip adjoining its land just east of the fence and dike. This quitclaim deed might have been plead and proven up as some kind of estoppel against Brown in this case, a matter we do not decide, but there being no such pleading and proof we do not deem it necessary to discuss this matter further.

Appellant contends that, inasmuch as the flood water blocked by its dike had been artificially collected, increased and discharged upon its land, it had a right to protect itself by constructing the dikes. There is evidence that the area to the north and west from the land involved had been developed by the building of houses, hard-surface streets and roads, and that thereby the amount of flood water had been increased, and that by the building of the highway these increased flood waters had been artificially concentrated and dumped upon appellant’s land, and that it therefore had a right to build the dike. In support of this contention it cites the case of Willacy County v. Oakes, 239 S.W.2d 692. It is true that in that case Justice Norvell, in speaking for this Court, said:

“ * * * Culverts had been placed under the highway and the county road, so that water approaching and overflowing Oakes’ land was gathered into a stream or concentrated flow by said culverts. In order to prevent damage to his lands Oakes erected the dam and dykes involved, which kept the water from the culvert under the county road particularly from flowing upon his property.
“It is well settled that lower lying lands are subject to ‘a service to receive the burden of surface waters which may flow from the higher estate onto the lower, so long as the surface water from the dominant estate reaches the borders of the servient one untouched and undirected by the hands of man.’ Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 408, 85 A.L.R. 451. Had appellee attempted to interfere with the natural diffused flow of water onto his property, the dam would have undoubtedly constituted an illegal obstruction and a nuisance and subject to abatement by injunction proceedings. (Citing authorities.)
“In the present case, however, the appellant, Willacy County, directly contributed to the gathering together of the surface waters and expelling them onto appellee’s lands in a concentrated form. This was done by maintaining the county road and placing a culvert under the same at the low point so as to drain the water from the area lying north of the road. The placing of the culvert under the road was undoubtedly necessary for proper highway maintenance, as well as to protect the lands north of the road from being inundated. It had the effect, however, of causing a concentrated force of water to flow onto appellee’s land, which was calculated to cause more serious injury thereto than would the natural diffused flow of water over said tract. Willacy County had secured no easement for a drainway, and appellee was thus faced with an election between instituting a legal action or relying upon self-help. He chose the latter course and constructed the dam to keep the concentrated flow of water off his property. In so doing he was undoubtedly acting within his legal rights.” (Emphasis ours.)

It will be noted, in that case the county had not secured an easement over Oakes’ land for drainage. Here there was a drain-way which was a public easement, and it was into this drainway that the county and city was discharging this flood water. This completely distinguishes the two cases. Here the water was being discharged into what had always been its natural drainway. The water was not collected into a culvert as in the Oakes case, it was simply allowed to flow across the highway in a wide stream, and ultimately into a public easement.

There was testimony given by people who had lived into the area to the effect that the flood water coming over the highway was no greater than it was before the area was improved. This evidence conflicted with other evidence that the flood water had been increased and concentrated. The matter was not submitted to the jury, and it may be presumed that it was resolved in favor of the judgment rendered. It was appellant’s duty, if it desired to contend that the flood water was greatly increased, concentrated and discharged upon its land, to request that such an issue be submitted to the jury. This it did not do.

Appellant contends that the sixty-foot strip here involved was abandoned. We overrule this contention. The record shows that the strip was used for drainage purposes up until appellant obstructed it by constructing the dike. It is true that some of the land over which the flood water passed had been excavated by taking gravel therefrom. After the gravel pits were dug the water simply drained into them. This continued until appellant filled the pits.

Neither did the trial court err in requiring appellant to remove all obstruction from the drainage ditch down to its former level, which had been placed therein by appellant, east of appellant’s west line.

Appellant, by its eighth point, contends that the trial court erred in permitting appellee Contractors Machinery Company, a corporation, to recover damages for annoyance, inconvenience or discomfort caused by flooding of its property. We sustain this contention. This annoyance, inconvenience and discomfort was suffered by the officers and employees of the corporation, but not by the corporation. We have found no authorities in Texas directly in point, but the following have a bearing on the questions raised: Texas Traction Co. v. Hanson, Tex.Civ.App., 124 S.W. 494; Texas & N. O. Ry. Co. v. McCraw, 43 Tex.Civ.App. 247, 95 S.W. 82; Dallas Telephone Co. v. Oak Cliff Transfer & Storage Co., Tex.Civ.App., 270 S.W. 577; De Mankowski v. Ship Channel Development Co., Tex.Civ.App., 300 S.W. 118. The jury’s answer of $500.00 in response to Question No. 14, and its answer of $750.00 in response to Question No. 16, cannot be permitted to stand. .

It appears from the evidence that the fence that appellant has constructed across the sixty-foot strip does not interfere with the flow of the flood water, and it further appears that the sixty-foot strip is no longer used as a roadway; and in view of the fact that neither the City nor the State is a party to this suit, the trial court erred in requiring appellant to tear down and remove the fence which it erected approximately 249.60 feet east of the west end of said sixty-foot strip.

We have examined appellant’s other points of error and, finding them without merit, they are overruled.

The judgment of the trial court will be reformed and amended so as to eliminate therefrom that part of the judgment which describes the sixty-foot easement by metes and bounds, and declares and establishes it “as a public easement for any and all lawful purposes for which the public or any governmental body thereof may wish to make of same,” as well as the requirement that appellant remove the fence. The principal amount of recovery is reduced from $6,000.00 to $4,750.00. As thus reformed and amended, the judgment is affirmed.

The costs of this appeal will be taxed against appellees.

POPE and BARROW, JJ., concur in the result.


author: CROSS, Judge.

text:
    Olaf HAY, Respondent, v. Frances HAM, Appellant.
    No. 23648.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Vance Julian, William J. Cason, Clinton, for appellant.
    Poague, Brock & Wall, Clinton, for respondent.
   CROSS, Judge.

Plaintiff Olaf Hay sues Mrs. Frances Ham, defendant, to recover damages on account of personal injuries inflicted upon him when Mrs. Ham allegedly caused a parked automobile to start up suddenly, climb a curb, cross a sidewalk, crash into the interior of plaintiff’s store and strike him.

The action was originally filed against Mrs. Ham and her husband, John Ham, as joint defendants. However, the petition was dismissed as against Mr. Ham before the jury was empaneled and the cause was tried against Mrs. Ham as the sole defendant. The trial resulted in a jury verdict and judgment for plaintiff in the amount of $10,000.00. Defendant has appealed.

The evidence in the case was introduced solely by plaintiff with the exception of a release document introduced by defendant during cross examination of plaintiff. Mrs. Ham testified only when called to the stand for cross examination by plaintiff’s counsel. After plaintiff rested, defendant offered no evidence. We here note the essential facts and circumstances relating to the incident which caused plaintiff’s injuries and damage.

On the 7th day of April, 1959, shortly before store closing time in the evening, Mr. and Mrs. Ham went to plaintiff’s grocery store in their jointly owned automobile to-pick up some previously ordered articles of merchandise. Mr. Ham drove the car and Mrs. Ham rode in the right front seat as a passenger. Upon arrival, Mr. Ham parked the vehicle in a regular diagonal parking space in front of the store, got out of the car, and left the motor running with the gears of the automatic transmission engaged. Mrs. Ham also got out of the car,, received some articles of merchandise delivered to her by Isabel Burry, a store employee, put them in the back seat and reentered the front seat of the automobile on the right side. After inviting Isabel Burry to ride home in the car, Mrs. Ham then “scooted” over to the center of the front seat to make room for the intended passenger. She moved both her body and feet and put her feet on the “hump that’s in the middle”. The motor began to “race” and the automobile ran forward, climbed the curb which was 5 inches high, traveled' across the 12 foot wide sidewalk, crashed, into the store to a distance of approximately 9 feet inside the building, knocked out approximately 15 feet of the store front, ran against Mr. Hay, pushed and rolled him against various parts of the store, knocked him to the floor, rendered him unconscious and inflicted substantial injuries, upon him. The store and contents were extensively damaged.

There is no direct evidence to show what made the engine accelerate and the car run forward. At the time of the occurrence only Mrs. Ham was in the automobile. She admitted she didn’t know whether or not her foot hit the accelerator, and was unable to say what caused the car to run forward. However, plaintiff testified that after the-accident, at the store, Mrs. Ham made the statement that “her foot slipped off the hump onto the accelerator”. Mrs. Ham did. not deny that she made the quoted state— ment. No contention is made on behalf of defendant that plaintiff failed to make a submissible case of negligence.

The evidence further shows that on July 24, 1959, and prior to filing this suit, plaintiff compromised with defendant certain elements of his cause of action, accepted the sum of $6500.00 in settlement, and executed a written release accordingly. The release provided, in part, as follows: “ * * * said release including loss of time and profits and expenses of any character whatsoever, except medical, hospital, and nursing expenses of the said Olaf Hay, and except damages for personal injuries to the said Olaf Hay. It is understood and agreed, however, that this release covers loss of all merchandise, cash, produce, fixtures, extra help, miscellaneous hauling, extra salaries, loss of profit, loss of earnings to date, replacement help, and other items * * * ”, It is evident from the terms of the release that plaintiff did not settle and release his claim for damages for “personal injuries”, “medical, hospital and nursing expenses”, and “loss of earnings” from and after the date of settlement. The release was introduced in evidence by defendant during her cross examination of plaintiff as above noted.

In submitting the case to the jury, the trial court gave plaintiff’s verdict directing instruction (No. 1), the entire text of which we here quote:

“INSTRUCTION NO. 1

“The court instructs the jury that if you find and believe from the evidence that at about 6:00 p. m. on April 10, 1959, Defendant, Frances Ham, was sitting in the 1955 Chrysler mentioned in the evidence which was parked in the public street adjoining the curb in front of the Penny Grocery on the North side of the Public Square in Clinton, Missouri, if so, and that at that time Plaintiff was standing within and near the front of the Penny Grocery Store, if you so find, and if you further find that at said time and place, Defendant Frances Ham, stepped on the accelerator of said Chrysler and caused the Chrysler to suddenly move forward, over the curb, onto the public sidewalk, and through the front and into the private property of the Penny Grocery Store, if so, and that in so doing Defendant Frances Ham failed to exercise the highest degree of care, and was thereby negligent, if so, and if you find that such negligence directly caused the Chrysler automobile to strike the Plaintiff, if so, and cause injuries to the person of the Plaintiff, if so, then your verdict should be in favor of the Plaintiff, Olaf Hay, and against the defendant, Frances Ham”.

Defendant first complains that the giving of Instruction No. 1 was error because that instruction incorrectly informed the jury it was defendant’s duty to use the highest degree of care, when, under the noncontro-verted facts in evidence, it was her duty to exercise only ordinary care. It is defendant’s contention that Section 304.010 V.A. M.S., which requires that “Every person operating a motor vehicle on the highways of this state * * * shall exercise the highest degree of care, * * * ” does not apply to her in this case for the reason that she was not “operating” the automobile when it was caused to run forward. She insists that Mr. Ham was still the “operator” of the car after he parked it in gear, left the motor running and left the car, and argues that even if she let her foot slip and hit the accelerator pedal and so caused the car to move ahead, that occurrence was only an isolated and unintentional act on her part that would not amount to “operating a motor vehicle” under the statute’s provision. Our decision of this assignment must be made without benefit of any previous decision bearing directly on the question. None has been cited by either party, nor has any been found by our research.

The foundation of legislative intent in the enactment of Section 304.010 is “to require users of motor vehicles upon public highways to exercise the highest degree of care”. Lafferty v. Wattle, Mo.App., 349 S.W.2d 519. The underlying purpose of Section 304.010 (and of related enactments) is the protection of life, limb and property of all persons from destruction or damage resulting from the operation of motor vehicles on the public highways. See Teters v. Kansas City Public Service Co., Mo.Sup., 300 S.W.2d 511. It is the duty of our courts to reasonably interpret Section 304.-010 so that the legislature’s purpose in enacting that law shall prevail and not so as to defeat the obvious intention of the lawmakers. Nicholas v. Kelley, 159 Mo.App. 20, 139 S.W. 248. It is a matter of common knowledge and universal concern that the millions of motor vehicles operating daily on our highways constitute one of the •deadliest and most destructive agencies in our present society.

In construing Section 304.010 Missouri courts have given a broad interpretation of the term “operating”. To illustrate that a narrow, literal construction of the word is not favored, we note the following decisions: In Teters v. Kansas City Public Service Co., Mo.Sup., 300 S.W.2d 511, a delivery truck driver parked the truck, went into a store, returned to the truck, climbed in the rear of the vehicle and opened the rear door, causing it to come into contact with a passing bus. In so doing, the driver was held to be “operating” the truck. In Phillips v. Stockman, Mo.App., 351 S.W.2d 464, the driver of a stalled automobile “pulled over” to the side of the road, got out of the car and looked under the hood. It was held that he was still operating the car. In Karnes v. Ace Cab Co., Mo.App., 287 S.W.2d 378, the driver stopped a taxicab and opened the cab door. A child passing on a bicycle struck the door and was injured. The court held that the cab driver was an "operator” when he opened the door. Stewart v. Jeffries, 224 Mo.App. 1050, 34 S.W.2d 560, is another case in which the automobile stalled and the driver got out and looked under the hood. The court said he was an operator, while so doing when another vehicle crashed into the rear of the stalled automobile. Likewise, in Thaller v. Skinner & Kennedy Co., 233 Mo.App. 1081, 130 S.W.2d 244, a woman who had stopped her car for a traffic signal was considered as an operator when a truck ran into the rear of the stationary vehicle.

Many shades of meaning have been given to the words “operate”, “operator” and “operating” by dictionaries and text writers. Both parties have submitted, from those sources, various general definitions of the words in question. However, we turn to Missouri decisions' for the definitions that are applicable to the precise issue involved.

Our courts have consistently defined the word “operating”, as used in Sec. 304.-010, in the following language: “The word ‘operating’ or ‘driving’ of a' motor vehicle within the statute requiring the highest degree of care encompasses all acts necessary to be performed in the movement of a motor vehicle from one place to another”. Thaller v. Skinner & Kennedy Co., supra. And, in Daniel v. State Farm Mutual Insurance Co., 233 Mo.App. 1081, 130 S.W.2d 244, in determining whether a certain person was a motor vehicle operator, this court said: “The word ‘operate’ according to Webster’s Dictionary is to ‘produce an effect, to cause to effect, to bring about’ ”. Additionally, we note that Webster’s Third New International Dictionary defines “operate” (when used as a transitive verb) as “to cause to occur” and “to cause to function”. And, we find a definition of the word “operator” in our Motor Vehicle Safety Responsibility Law. Section 303.020, V.A.M.S., defines the word as “a person who is in actual physical control of a motor vehicle”.

In view of the decisions we have referred to and the quoted definitions, and having in mind the remedial purposes of Section 304.010, all in the interest of public safety and welfare — we conclude that defendant was “operating” the automobile when it was propelled forward into plaintiff’s store and against his person. It is a reasonable inference, permissible under the ■■evidence, that the car lunged forward as the tesult of defendant’s foot applying pressure ■on the accelerator. That act on the part of defendant (whether intentional or not) was ■ an “act necessary to he performed in the movement of a motor vehicle from one place to another” — and, therefore, it was an ■ act which “The word ‘operating’ or “driving’ a motor vehicle within the statute requiring the highest degree of care encompasses * * * ”. Thaller v. Skinner, supra. And, in our opinion, it cannot be reasonably argued that defendant did not “produce an effect”, or that she did not “cause”, ’“effect” or “bring about” the movement of ■the vehicle resulting in plaintiff’s injuries. It is equally apparent that when defendant •exerted the force that started the automobile she immediately became a “person who is in actual physical control of a motor vehicle”. Section 303.010 V.A.M.S.

We see no validity in defendant’s argument that the incident was isolated and unintentional. The frequency or infrequency of an automobile’s use by a person is no standard by which his duty of care is measured. Nor is defendant to be excused from exercising the highest degree of care because her act causing the car to move forward might have been unintentional. No such exception is found within Section 304.-010. Defendant is no more entitled to the immunity than is any other operator, who might unintentionally step on the accelerator instead of the brake pedal when he is seated under the wheel and at the controls; or a driver who inadvertently fails to observe a stop signal or unintendedly violates any other of the numerous regulations imposed on automobile operators in the interest of public safety.

Our final comments relate to defendant’s acts leading up to her propulsion of the car on its brief, but tragic course, and to her conduct during that journey. It is reasonably apparent that when she “scooted over in the seat” and “put her feet on the hump”, she deliberately placed herself in juxtaposition with the controls of the automobile. She then knew (or should have known) that the car’s engine was running and that it might run forward if she pressed the accelerator. She was potentially an “operator”, and became one when her foot slipped off the hump and depressed that control. She was then the sole and only person who had any ability or means to control the vehicle she had launched into motion. She was the “operator” in charge. Certainly, at that time, she owed the highest degree of care to use available means to prevent injury and damage — such as taking her foot off the accelerator, applying the brakes, or, possibly, turning the wheel and steering the car away from plaintiff.

There was no error in the giving of Instruction No. 1 as above charged.

The second assignment is a complaint also directed against Instruction No. 1. Defendant claims that the instruction is erroneous because it fails to hypothesize facts sufficient for a finding of negligence. Defendant says the only fact hypothesized is that “defendant * * * (negligently) * * * stepped on the accelerator of said Chrysler and caused the Chrysler to suddenly move forward, over the curb * * ”. In addition to the foregoing, defendant insists that the instruction should have required findings that defendant knew or should have known that the car (engine) was running and was in forward gear and would move forward if the accelerator was pushed, and, that defendant knew or should have known that the car would climb the curb and run into the store if the accelerator was pushed. We find no merit in the contention. The factual hypothesis contained in the instruction was a sufficient submission of the issue of defendant’s negligence. The submission was in terms of the averments of negligence pleaded in the petition and in accordance with the undisputed evidence tending to establish defendant’s negligence as pleaded. See Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, wherein the Supreme Court said:

“Where there is no divergence in or denial of the essential facts, then the ultimate issue of the negligence pleaded and its being the proximate cause of the injury or damage alleged may be submitted by reference to the facts and circumstances shown by the evidence without specific hypothesization in the instructions. And, we may add, that if either of the parties deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized in any instruction, he should offer a clarifying or amplifying instruction”.

We further observe, in support of our present ruling, that at the trial defendant did not offer any clarifying or amplifying instruction incorporating the additional facts she now suggests should have been submitted in Instruction No. 1. Having not done so, she will not now be heard to say such facts should have been included in the instruction.

Defendant next charges the trial court with error in giving Instruction No. 2, the measure of damage instruction, which reads as follows:

“The court further instructs you that if you find the issues herein submitted to you in these instructions in favor of Plaintiff, Olaf Hay, then it will be your duty to assess as damages in his favor such sum of money as you find from all of the evidence will fairly, fully and reasonably compensate him for such injuries, and damages, if any, as you find from the evidence that Mr. Hay suffered in the past and is reasonably certain to suffer in the future as a direct result of the occurrence mentioned in evidence, except such damages, if any, as were released by the release of July 24, 1959”.

Defendant’s specific complaint of the instruction is that it was error for the trial court to permit the jury to interpret the legal effect of the release described in the instruction. Instead, defendant urges, the legal construction of the release was for the court, and that “having, at plaintiff’s request, undertaken to instruct on the damages and the release the court should have-told the jury what damages were released' by the document and should not have left the legal construction of the document, with the jury”.

In asserting the foregoing complaint defendant has made a radical departure from her trial theory. Immediately prior to plaintiff’s opening statement, counsel for the parties conferred with the trial' judge about the release. Plaintiff’s counsel at that time inquired of defendant’s counsel as to the release, and how they wanted to proceed with it. To that inquiry, defendant’s counsel made statements as follows r

“The document is here, can be put in evidence”.
“Certainly we’re entitled to have the jury know that we have paid for those damages which are released by the document. The document speaks for itself”.
“The document will speak for itself. Let the document go in”.
“I think the document will speak for itself as to what it says”.
“I think it speaks for itself”.
“I think it will get before the jury”.

In accordance with the stated views of her counsel, defendant introduced the release in evidence and exhibited it to the jury. Plaintiff testified and was cross examined at length concerning what was covered by the release. Counsel for both parties discussed the effect of the release in argument to the jury. Throughout the trial both parties treated the release controversies as issues to be heard and resolved by the jury. This procedure was adopted and followed at the vigorous insistence of defendant’s counsel. The jury submission of those issues (now complained of) was invited by the position taken on behalf of defendant by her counsel and is consistent with their views expressed at the beginning of the trial.

Although defendant is not entitled to a review of the present question because she now presents a different theory than she did at the trial, nonetheless, we have considered the assignment and rule that the instruction is free from the attributed error. It is a correct statement of the law as applied to the facts in the case, contains no mis-statements or mis-direction of law, and, in our opinion, enabled the jury to arrive at a just evaluation of plaintiff’s damages. As we said in Samuels v. Illinois Fire Insurance Co., Mo.App., 354 S.W.2d 352, “Where an instruction on the measure of damages, though general, is not erroneous in its general scope, its generality does not constitute error, and if the defendant fears such instruction may be misunderstood, he must submit an explanatory or modifying instruction or he will not be heard to complain”.

Again complaining of Instruction No. 2, defendant argues that it erroneously allowed the jury to compensate plaintiff for injuries and damages he may (with reasonable certainty) suffer in the future. Defendant admits “there is some evidence of a permanent physical condition”, but insists there is no evidence to establish the cause of that condition. There is no basis for this contention. Plaintiff described in detail the observable injuries he received as a result of the automobile striking him, which included cuts on his head, arm and elbow; a fractured knee (left) cartilage; a fracture of the fibula of the right leg; a five to six inch cut on one side of the right leg and a puncture wound in the opposite side of the same leg. Plaintiff testified that at the present time he has “a coagulated muscle or adhesions of the muscle” * * * “a puffed place on the muscle part right above the bone of my (right) leg where the muscles work”. The injured muscle referred to by plaintiff was described from a medical standpoint by Dr. Bradshaw, testifying on behalf of plaintiff, as a “herniated muscle with bleeding into the muscle so that it formed a blood clot”. Dr. Bradshaw testified that condition was permanent and disabling. The only reasonable inference the jury could make under these facts is that the described (and admitted) permanent injury resulted from the automobile’s impact upon plaintiff. There is no evidence in the record to support any other possible hypothesis of cause. Plaintiff has sufficiently established a causal connection between the proven occurrence and the undisputed permanent injury.

Defendant next contends the trial court erred (1) in permitting plaintiff to testify as to the amounts he had paid out for medical expenses and as expenses incurred in traveling to procure medical treatment when there was no evidence that those expenses were reasonable or necessary, and (2) in refusing to give an instruction requested by defendant withdrawing from the jury consideration of the testimony relative to those items of expenditure. Plaintiff testified that he had paid bills for medical expenses in the total sum of $751.04, which he itemized as follows: “Dr. McIntyre $76.00, Dr. Glaspy $10.00, ambulance $10.00, hospital (nine days residence, X-rays, orthopedic appliances, medicines and services) $182.95, Kreisler Drug Store (for elastic knee and leg bands) $23.59, (Dr.) Hugh Walker $109.40, $4.00 to (Dr.) Hugh Walker, (Drs.) Dickson and Diveley $75.00, (Drs.) Max Berry and Brown $80.00, trips to Kansas City, (4 trips from Clinton to Kansas City and return), $120.00, crutches $20.-00, and for lounge bed (required during convalescence) $35.00 * * * Plaintiff described in detail the medical services rendered by the doctors and further testified that the listed expenses were incurred solely because of the injuries he received in “this accident”.

Defendant correctly asserts that there must be some substantial evidence to show that the value of and the charges for doctors’ services and related items are reasonable before such expenses incurred may be considered by the jury in assessing damages. Such proof may be made by inference from the circumstances attending the expense transactions as well as by direct evidence of value. In this case the fact that the enumerated items of charge were submitted to and paid by plaintiff is some substantial evidence of their reasonableness. See Myers v. Karchmer, Mo.Sup., 313 S.W.2d 697; Stewart v. Geo. B. Peck Co., 234 Mo.App. 864, 135 S.W.2d 405; Abbitt v. St. Louis Transit Co., 104 Mo.App. 534, 79 S.W. 496; Wyse v. Miller, 222 Mo.App. 165, 2 S.W.2d 806. The rationale of our ruling is expressed by the Supreme Court in the following quotation from Cordray v. City of Brookfield, Mo.Sup., 88 S.W.2d 161:

“ * * * -when it is considered that the evidence was that his services had continued at regular intervals over a period of four or five years; that he was a reputable physician; that there was no evidence tending to show collusion or bad faith; that defendant did not question the reasonableness of the account; and that the plaintiff acknowledged the indebtedness; we think the evidence must be taken as affording a basis for a fair inference that the charges were reasonable. Nothing whatsoever to the contrary appearing, we must presume and ascribe honest motives, good faith, and right conduct”.

We rule additionally that there is sufficient evidence to support a fair inference that plaintiff’s medical expenses were necessarily incurred. The necessity for the medical treatment afforded plaintiff’s injuries is clearly obvious from their nature and extent as detailed in evidence. See Myers v. Karchmer, Mo.Sup., 313 S.W.2d 697. In permitting the plaintiff to testify as to his medical expense, and in refusing to give an instruction withdrawing that testimony, the trial court ruled appropriately.

Defendant’s next assignment it that the •court erred in refusing to strike the testimony of Dr. Bradshaw and in refusing to withdraw that testimony from the jury’s consideration. This point is essentially a repetition of one we have previously discussed. Defendant again argues that plaintiff has established no causal connection between the accident and the conditions of injury found by Dr. Bradshaw. On that premise defendant contends there was no foundation for the admission of Dr. Bradshaw’s testimony.

Dr. Bradshaw made a physical examination of plaintiff a few days before the trial and testified as plaintiff’s medical witness. Describing the examination, the doctor stated that it was limited to “the things I could learn from observation, by measurement (and) by X-ray examination also”. His testimony was likewise limited. Testifying from personal knowledge, Dr. Bradshaw narrated a factual description of plaintiff’s injuries as he actually observed and diagnosed them by examination, and expressed the medical opinion that the muscle injury suffered by plaintiff was permanent and disabling. We are unwilling to say that evidence of such pointed relevance was inadmissible, as defendant insists, merely because it did not encompass within itself all the elements of proof necessary to . establish the required causal connection between the accident and the injuries complained of. Dr. Bradshaw’s testimony is material and relevant because it tends to establish the terminal condition of injury to which the cause is connected by other evidence, as we have previously noted. Nor, as also suggested by defendant, was it incumbent upon Dr. Bradshaw to base his opinion testimony upon facts submitted to him in hypothetical questions. An expert witness is permitted to express an opinion based upon facts within his own knowledge and observation. See Schears v. Missouri Pacific Railroad Company, Mo.Sup., 355 S.W.2d 314. We find no impropriety in the trial court’s rulings.

Defendant complains of error in the trial court’s refusal to grant a mistrial after the occurrence of two trial incidents— the first of which occurred as follows: On direct examination plaintiff testified that after the accident he operated his grocery store until lie sold it on May 1, 1960. He was thereafter asked by his counsel to state the reason for selling the store. Plaintiff answered “From the doctor’s orders that I * * * ”. The answer was interrupted by defendant’s objection and a motion to instruct the jury to disregard the question. The court sustained the objection and instructed the jury to disregard the answer, and denied defendant’s request for a mistrial.

The second incident complained of arose from an offer of proof made on behalf of plaintiff. During the plaintiff’s direct examination, he was requested by his counsel to “pull up his pant’s leg so that we can exhibit your leg to the jury”. Defendant objected to the exhibition and the court sustained the objection. Thereupon, in the jury’s presence, plaintiff’s counsel requested “permission to exhibit the leg to the jury for the purpose of showing them the condition of this leg and to show that there is a puffed place below the knee, extending there, for the purpose that this jury can see it itself, it is perfectly visible”. Defendant then moved for a mistrial on the ground that the offer of proof was inflammatory to the jury. The trial judge denied both plaintiff’s offer of proof and defendant’s motion for a mistrial.

The allowance or refusal of a motion for a mistrial rests generally within the discretion of the trial court. The appellate court will not interfere with the trial judge’s action unless it appears that he has abused the broad discretionary power granted to him by the law. Lithegner v. City of St. Louis, Mo.App., 125 S.W.2d 925. We are not convinced by our review of the trial incidents in this case that defendant suffered any manifest injustice from the denial of her motions for a mistrial, or that such action by the trial judge was an abuse of his discretion,

In her final point, defendant insists that the verdict of $10,000.00 was excessive and resulted from the jury’s bias and prejudice. It is shown by the evidence that when defendant’s automobile struck plaintiff he received a cut on the head extending across his right eye requiring 13 stitches, bruises, a cut on his right elbow and right arm, a fractured cartilage of the left knee, a cut five to six inches long on one side of the right leg, a puncture wound on the other side of the same leg, and a broken leg bone below the right knee. He sustained a tear in the fascial compartment of the right leg permitting the leg muscle to push through with bleeding into the muscle itself — an injury still present at the time of trial and diagnosed as a herniated or ruptured muscle with interior bleeding which had formed a blood clot. In the language of Dr. Bradshaw, “The bleeding into the muscle itself has clotted so that now Mr. Hay has a piece of muscle that is damaged and has blood accumulated in this piece of muscle that has pushed its way out through the fibrous covering”. The lump caused by this condition is five inches long and two inches wide. The described muscle injury and blood clot are permanent. No improvement is expected and surgery is not advised. Plaintiff testified that the leg puffs and swells from standing, that he suffers continual pain from it and that he can’t stand on it any length of time. “It puffs and swells on me from standing”. Dr. Bradshaw testified that the injury will cause plaintiff difficulty with any activity that requires the use of the leg muscle group — illustratively, standing for long periods of time and climbing steps— and, that he was not able to stay on his feet regularly in 8 hour day employment without discomfort. Plaintiff was hospitalized 9 days for treatment of his injuries and remained at home for approximately 30 days before returning to the store — confined to his bed for two weeks, and in a wheel chair the rest of that time. At the store he used the wheel chair for a week and thereafter used crutches for about a month. Because of his injuries plaintiff had to hire extra help to run the store, for which he paid out wages in the total sum of $2,363.52 from and after the date of the partial settlement. As appears above, plaintiff expended the sum of $751.04 to pay his medical expenses.

The evidence bearing on the question of plaintiff’s loss and damage justifies the award. There is nothing before us to indicate that the verdict resulted from any bias or prejudice on the part of the jury.

The judgment is affirmed.

All concur.