author: STOCKARD, Commissioner.

text:
    George KRUDWIG, a Minor, by Eleanor Krudwig, Next Friend, and John B. Krudwig and Eleanor Krudwig, Appellants, v. James F. FOWLER, Respondent.
    No. 50833.
    Supreme Court of Missouri, Division No. 2.
    Sept. 13, 1965.
    Rehearing Denied Oct. 11, 1965.

      Sherman Landau, St. Louis, for appellants.
    Willson, Cunningham & McClellan, Jerome M. McLaughlin, St. Louis, for respondent.
   STOCKARD, Commissioner.

Plaintiffs have appealed from the judgment in favor of defendant entered pursuant to the unanimous jury verdict. Plaintiff George Krudwig sought damages for personal injuries in the amount of $45,000, and plaintiffs John B. Krudwig and Eleanor Krudwig, parents of George, sought to recover $15,000 for medical expense and loss of services of their son.

George was injured about 9-:30 o’clock of the evening of July 14, 1962, when the motorcycle he was operating on the property of a gasoline service station collided with an automobile operated by defendant. The circumstances of the collision are in dispute and the conflicting versions need not be set out.

Appellants’ first point is that the trial court erred in permitting counsel for respondent, “over repeated objections by plaintiff, to deliver an unbridled harangue to the jury under the guise of voir dire interrogation, and in permitting defendant’s counsel to instruct the jury that plaintiff had the burden of proving freedom from contributory negligence ‘because the defendant has pleaded contributory negligence in this case.’ ”

Appellants have set forth in their brief the voir dire examination about which complaint was made. There is no question but that some of the statements and questions by counsel were outside the scope and purpose of a voir dire examination. However, the trial court sustained appellants’ objections to each and every improper statement and question, including the statement referred to in the point pertaining to contributory negligence. Appellants make no specific reference in their point, or in their argument, to those matters to which objections were overruled. Two pertained to an inquiry of the jury panel as to whether they understood that the fact plaintiffs had brought the suit did not entitle them to a verdict, and the other was an inquiry as to whether any member of the panel would favor plaintiff for the reason that he was injured. While perhaps these questions were ineptly worded, they are not subject to the general accusation made in appellants’ point.

Appellants attempt to excuse their failure to ask for additional relief on the theory that they did not want a mistrial because of the resulting delay. However, there was other relief available. We refer to a request that the jury panel be instructed to disregard statements, and a request that counsel be admonished or reprimanded. As far as shown by the record before us, there is no reason to assume that such remedial action would not have been forthcoming if requested and if the trial court had believed that remedial action appropriate. But in the absence of unusual and patently prejudicial matters, not here presented, counsel cannot pursue a course which in effect expresses satisfaction with the action taken by the trial -court, and then complain on appeal that the trial court should have done more on its own initiative.

Appellants argue that “the trial court’s rulings were inconclusive, and in the aggregate had the overall effect of leaving the jury in confusion as to how much counsel’s bombast was controlling upon them.” We cannot agree. The court’s rulings concisely disposed of everything presented to it by appellant. The trial court necessarily has considerable discretion to exercise control of the voir dire examination, and generally .speaking it -is in a much more favorable position to determine the proper limits of such examination, and the existence of abuse and the resulting -prejudicial effect, if any, than an appellate court. It is only when there has been manifest abuse of that discretion, and where there is probability of prejudice to a party that an appellate court should interfere. Olsten v. Susman, Mo., 391 S.W.2d 331, 335. In this case the trial court granted all the relief appellants requested as to their meritorious objections, and it had the opportunity to review the entire situation when ruling on the motion for new trial. We cannot find any basis for ruling on this appeal that the trial court abused its discretion in its control of the voir dire examination.

Appellants next assert prejudicial error resulted because the trial court permitted respondent’s counsel to comment unfavorably, in his argument to the jury, upon appellants’ failure to call Jack Schroeder as a witness in their case in chief. They contend that he was equally available to all parties.

Jack Schroeder was a passenger on the motorcycle, riding behind George Krud-wig, at the time of the collision. Appellants did not call him as a witness in the presentation of their case in chief. However, he was called by them.as a rebuttal witness. Miss Creech, a witness for respondent, had testified that when George Krudwig, with Jack Schroeder riding behind him, drove away from the gasoline pumps where the motorcycle had been serviced, he then drove without stopping out into Bellefontaine Road and made a complete turn, and then came back onto the service station property at a speed not less than twenty-five miles an hour. Jack Schroeder, as a rebuttal witness, testified that they stopped about ten feet from the pumps and then turned around and did not go out onto Bel-lefontaine Road. During argument to the jury the following occurred:

“Mr. McLaughlin: I think it is significant to note that there was a lot of talk about where this motorcycle was going. Mr. Schroeder, who came in, although an absolute witness, a passenger on the motorcycle, was not brought in the plaintiff’s case in chief * *
“Mr. Landau: I object. That is highly prejudicial, improper. He was just as available to the defendant as he was to the plaintiffs. That is an improper comment.
“The Court: All right, I will sustain that.”

We find it difficult to determine on what basis appellants contend that the trial court erroneously permitted the comment. In view of the relationship between George Krudwig and Jack Schroeder, it is not immediately evident that the comment was beyond the permissible limits, but in any event, the trial court sustained the objection, and that is all appellants requested. We find the same situation as to appellants’ seventh point in their brief where error is asserted in that the trial court permitted counsel for respondent to argue that appellants’ witnesses did not have on their leather jackets. The trial court agreed that the argument was improper and promptly sustained appellants’ objection, the only relief requested.

In appellants’ sixth point it is asserted that the trial court erred “in failing to grant a new trial for the prejudicial argument of defendant’s counsel in arguing to the jury that the plaintiff was a victim of malpractice, and that plaintiffs had a valid cause of action against the St. Louis County Hospital for such malpractice.” Appellants assert that at “intermittent intervals” respondent’s counsel argued to the jury “through the guise of objections to evidence, and otherwise” that the permanent impairment of George Krudwig’s arm resulted from malpractice.

Appellants’ counsel requested permission of the court to read to the jury portions of the medical records of Faith Hospital pertaining to George Krudwig. Respondent objected because George Krudwig had testified that the broken bones sustained in the collision with respondent’s automobile were set at the County Hospital, and “if they were improperly set, these are elements of damage they may have against the St. Louis County Hospital.” The objection of respondent was overruled and the records were read. The reason in support of the objection was advanced to the court and not the jury, and we do not know that the jury heard it although the record does not affirmatively show that it was out of the hearing of the jury. However, the effect of the ruling of the court in overruling respondent’s objection was to disapprove his reason. In any event, appellants made no request that the jury be instructed to disregard the remark. Appellants were satisfied with the court’s ruling in overruling respondent’s objection, and they presented nothing to the trial court concerning the remark until their motion for new trial. The trial court then evaluated the incident, and based upon what it saw and heard, declared the incident not to have been prejudicial. We find no basis for concluding that the trial court erred m this respect.

Appellants next assert that “defendant’s counsel was not content to let the matter rest with the improper advantage” gained by the incident previously set out, but “compounded the prejudicial error in his argument to the jury.” They then set out argument on the part of respondent pertaining to the extent of the injuries of George Krudwig where he commented on the testimony of an osteopathic physician who had examined George sixteen months after the accident. In argument this was said: “What could he possibly know about the boy’s injuries, whether they were connected to this accident, whether the County Hospital did a poor job in putting this boy’s arm in a cast. He knew nothing about that; he was honest about it. He testified as best as he could. He did tell us that * * Appellants then objected because “there is no testimony that the County Hospital did any poor job.” Counsel for respondent then added: “They must have done a pretty poor job if they had to break his wrist.” The court then sustained the objection and instructed the jury to “disregard that last remark.” No other relief was requested.

In view of the verdict for defendant on the issue of liability, we doubt that the above matters pertaining only to the issue of damages could be considered to be prejudicial. Boedeker v. Wright, Mo., 312 S.W.2d 829, 833; Merritt v. Mantony, Mo., 353 S.W.2d 768. Aside from that, however, appellants seek to have this court declare that a trial court committed error prejudicial to them when it granted all the relief requested at the time of the incidents about which complaint is now made. The incidents are not of the nature which call for action by the trial court without a request, see Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, and appellants are not entitled to complain on appeal that the trial court erred in taking no more remedial action at the time than they requested.

Another assignment of appellants is as follows: “The court erred in refusing to permit plaintiffs’ witness, Dr. Luebbert, to use the records of Faith Hospital to form the basis for his expert testimony.” Certain medical records from Faith Hospital pertaining to an operation performed on George Krudwig were admitted into evidence. Dr. Luebbert did not perform the operation, but when on the witness stand he was shown the records and was asked' “to explain to us in layman’s language as much as possible just what was done in that operation.” An objection was made on the ground that the doctor was not present when the operation was performed, that the records “speak for themselves,” and that the witness should not inject his idea as to what happened. Later counsel for appellants read “the record of the operation” to the jury, and he then asked Dr. Luebbert to “explain to us in plain, simple language so that we as laymen can understand what was described in that hospital record.” An objection was made “to this witness attempting to testify as to what happened on the operation that is described in the hospital record” because he had no personal knowledge. Beth objections- were sustained.

This assignment of error also pertains to the issue of damages, an issue never reached by the jury. Appellants rely on Harris v. Goggins, Mo., 374 S.W.2d 6. It was there held that a doctor could consider hospital records which had been admitted into evidence “as a basis for opinion testimony” over the objection that the records were hearsay. This case does not support appellants’ position in this case. Dr. Luebbert was not asked to refer to the records as a basis in whole or part for an expert opinion. Appellants have not demonstrated that the ruling of the trial court was erroneous, or if it was, that it was prejudicial in view of the verdict for defendant. While we have found no case precisely on this issue, we are of the opinion that the rulings were correct.

Appellants next charge that error resulted when the trial court permitted respondent’s counsel, on cross-examination “to interrogate plaintiff and his witnesses concerning an alleged reception at the Ap-plegate home, and to imply, through adroit questions, that plaintiff and his witnesses had imbibed alcoholic beverages, although there was no actual evidence to that effect, and there was no means by which the court could thereafter eradicate the false and unfounded insinuation thus spread before the jury.”

On direct examination George Krudwig testified that on the evening of the collision he went from his home to the service station to get gasoline and arrived there about 9:30 o’clock. On cross-examination it was developed that on the evening of the collision George had ridden his motorcycle to the home of a friend, had then ridden in his friend’s automobile to a bowling alley and to a “Steak’n Shake,” and then to Mr. Applegate’s house where there were about ten people including some girls. When asked if “anyone was drinking anything,” he answered “Yes, sir,” but he said it was not beer or liquor. After staying there about a half hour, he and his friend went to the service station, where the collision later occurred, for about five or ten minutes, and he then went home and changed clothes. He then rode his motorcycle back to the service station to get gasoline for his motorcycle, and he intended to go from there back to the Applegate house. The only objection to the cross-examination which resulted in the above information was that it was immaterial, except one objection that a question was argumentative which was sustained.

Counsel for appellants asked George Krudwig on direct examination what time he arrived at the service station to get gasoline, and then asked this: “Where had you started your trip, from your home?” To this question George answered, “Yes, sir.” On cross-examination, respondent was entitled to develop that his activities of that evening had not started with the trip from home to the service station, and he was entitled to inquire fully into those activities. The record does not support the sweeping accusations contained in appellants’ point. We find nothing to which objection was made and overruled which was not properly in the scope of cross-examination in view of the testimony on direct.

Appellants challenge Instruction 3, a contributory negligence instruction based on excessive speed because it is “confusing and misleading,” it fails to hypothesize “attending circumstances of the facts,” and it fails to hypothesize “which of the three versions as to the speed of the motorcycle, defendant relied on for a favorable verdict.” The basis for the contention that the instruction is “confusing and misleading,” and the essential attending circumstances contended to have been omitted are not set out in the point in appellants’ brief. It is true that there was a divergence in the testimony as to the speed of the motorcycle at the time of the collision, and the submission in Instruction 3 was that George Krudwig “operated his motorcycle on the paved surface of the service station referred to in evidence, at a rate of speed which was excessive and dangerous under the circumstances then and there existing.” Appellants rely on the rule announced in Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, where it was stated: “Where the evidence presents two or more divergent sets of essential facts, under one or more of which plaintiff would be entitled to recover and under one or more of which he would not, then a verdict-directing instruction or instructions given in his Behalf should hypothesize, either by recital or by reference to other instructions, the facts essential in law to support the verdict. In like manner, verdict-directing instructions in behalf of the defendant should recite on their face or by reference to other instructions any essential fact or facts shown or not shown which will defeat plaintiff’s right of recovery.” Appellants do not claim that a jury would not be authorized, as a matter of law, to find negligence on the part of George Krudwig based upon any of the speeds of the motorcycle shown in evidence. Yet the above rule from Hooper v. Conrad applies only when a divergent set of facts would not, as a matter of law, permit a plaintiff to recover, or in case of a defendant’s instruction, would not defeat plaintiff’s right. An instruction with substantially the language used in Instruction 3 was approved in Anderson v. Duckworth, Mo., 383 S.W.2d 726, and also in Russell v. Kotsch, Mo., 336 S.W.2d 405. There are very few situations where every witness agrees on the speed of a vehicle, yet this alone does not require the preciseness that appellants urge. The degree of divergence as to speed becomes important when a jury could not as a matter of law conclude that a speed shown by the evidence was negligent under the circumstances then and there existing, and appellants do not contend this to exist in this case, and we do not so conclude.

The substance of appellants’ complaint is that Instruction 3 abstractly submits excessive speed as contributory negligence. If this judgment should be reversed because of this, then upon retrial the cause would be submitted to the jury pursuant to the new procedure pertaining to instructions, and the submission of excessive speed would he far more abstract than in Instruction 3, See MAI § 2801..

Appellants also challenge cautionary Instructions 6 and 7. Instruction 6 is the usual instruction advising the jury that negligence is not presumed, and that the jury is not permitted to base its verdict entirely upon mere surmise, guesswork and speculation. The precise language used in Instruction 6 has been expressly approved in West v. St. Louis Public Service Co., Mo., 236 S.W.2d 308, and appellants make no effort to distinguish that case or to demonstrate why it is wrong. They argue that it is confusing because it refers to “the reasonable inference deducible” from the evidence. Apparently they contend that it should refer to inferences in the plural. This is totally without merit. No reasonable jury could have been confused or misled.

Instruction 7 told the jury that it should first decide the issue of liability, and until that issue was determined favorably to appellants, it should not consider the amount of appellants’ damages. Appellants argue that this instruction was an attempt “to order the sequence of the jurors’ thought processes.” If so, it was a correct and proper order about which appellants cannot complain. The identical instruction was approved in Hogan v. American Transport, Mo., 277 S.W.2d 495.

We find no error prejudicial to appellants, and the judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    Henry STEIN, Respondent, v. Robert McDONALD, Charles L. McDonald, and Mrs. A. T. Moore, Appellants.
    No. 50983.
    Supreme Court of Missouri, Division No. 2.
    Sept. 13, 1965.
    Rehearing Denied Oct. 11, 1965.
    Thomas P. 'Howe, Russell N. MacLeod, Clayton, for respondent.
    Parks G. Carpenter, Moser, Marsalek Carpenter, Cleary & Jaeckel, St. Louis, for appellants.
   PRITCHARD, Commissioner.

Plaintiff sued defendants for $65,000 damages for personal injuries which resulted from one of defendants falling from the bed of plaintiff’s truck on top of plaintiff. The verdict and judgment were for defendants, after which the trial court granted plaintiff a new trial upon the grounds of error in giving two contributory negligence instructions (Nos. 2 and 3). Defendants appeal from the order granting a new trial contending that the two contributory negligence instructions were supported by the evidence, and were correctly given to the jury-

Plaintiff was a self-employed dealer in used machinery and equipment. On January 13, 1960, he had loaded on his truck certain mechanical saws which were placed at the front of the bed thereof and tied with manila rope. He visited defendants’ place of business, known as the McDonald Machinery Company, 1535 North Broadway, St. Louis, Missouri, for the purpose of the sale of the saws. Before going to defendants’ offices, plaintiff, knowing that Mr. Robert McDonald would want to take a close look at the saws, removed one tail gate from the rear of the truck bed to facilitate inspection. Plaintiff placed the tail gate section, which had a wire or cord on it which he first removed, inside the truck bed against its side. Plaintiff did not secure in any way the tail gate section after placing it inside the truck bed.

Plaintiff then went inside the McDonald place of business and told Robert McDonald that he had two saws for sale and that they were on the truck. Robert preceded plaintiff in going out to the truck, which was parked with its wheels close to the curb in front of defendants’ place of business. Plaintiff stood at the rear of the truck and at the curb “close enough to touch the truck.” Robert, when he went outside, stepped Into the street, and looked into the back of the truck through the opening made by the removal of the tail gate section, which was the only way a person could see into the bed of the truck. Robert probably saw the tail gate which had been pulled from its sockets and placed inside the truck body when he was standing in the street, but it made no impression upon him — he “unconsciously” recognized it as a tail gate. He did not know whether or not the tail gate was secured in any fashion. Then Robert went to the sidewalk at the side of the truck, pulled himself up thereon, and then attempted to swing around the rear of the side panel of the .truck bed in order to get into it and approach the machines. There was a metal ledge or flange around the outside of the truck bed. While Robert was off balance and changing his grip or handholds, he got hold of the tail gate. When he grasped the tail gate he thought it was a stake like the rest of the truck. It did not support him, but tipped and caused him to fall backward upon plaintiff from his position directly above him. Plaintiff testified that his own method of climbing on the truck was to stand on the curb at the right rear wheel, climb up on the wheel to stand on the steel railing on the outside of the bed, then swing his body around the back of the truck without difficulty. There was nothing on the truck designed to be a step or a handhold, and plaintiff would use whatever part of the truck he could grab hold of when he climbed on. Plaintiff did not warn Robert that the tail gate sitting inside the truck-had not been secured.

Instruction No. 2 required the jury to find that plaintiff came to defendants’ place of business and requested that Robert purchase some equipment; that Robert left his office, followed by plaintiff, for the purpose of mounting the truck to inspect the equipment; that plaintiff had removed a tail gate section from his truck and placed it loose and unsecured against the side of the truck bed; that the loose tail gate section created a hazard of falling for one attempting to inspect the contents of the truck; that plaintiff created such hazard and knew of its existence, and took up a position in which he would likely be injured if someone fell from the truck as a result of such hazard; that in so doing plaintiff failed to exercise ordinary care for his own safety and was thereby negligent, and that such negligence directly contributed to cause plaintiff’s injury, then plaintiff was not entitled to recover, but the verdict must be in favor of defendants, “and this is true even if you should find that the defendant Robert McDonald was also negligent under other instructions of the Court”

In his -motion for new trial, paragraphs IV and V, plaintiff first assigned as error for the giving of Instruction No. 2 that there was no evidence, either by plaintiff or defendants, supporting its hypothesized facts. More particularly, plaintiff assigns “that said hypothesization set out that -the Defendant fell on Plaintiff while Defendant was mounting the truck, when the evidence of both Plaintiff and Defendants was that the accident occurred after Defendant had boarded the side of the truck, and after he had made his way along the outside of the truck, and was in the process of swinging around the end of the side stakes to step upon the floor of the truck at the rear.”

Instruction No. 2 is not erroneous for the first assigned reason. Plaintiff’s own testimony establishes that he had removed the tail gate section, set it inside the truck bed, and did not secure it, from which the jury could find, as submitted, that plaintiff created the hazard and knew of its existence. He took up a position on the curb behind Robert, from which the jury could find that plaintiff would be likely to be injured as a result of such hazard (of which he knew). Although the jury could find the necessary negligence of Robert in climbing on the truck, under these facts it could also find that plaintiff was himself negligent in creating the hazard of the loose, unsecured tail gate and knowing of such in placing himself in a position of danger beneath Robert if he should grasp the loose tail gate, thus contributing to plaintiff’s injuries.

Instruction No. 1, submitted and given by plaintiff, required the jury to find that Robert “climbed upon the outside of the right hand side of said truck body, so as to examine said machinery and then attempted to enter in and upon the floor of said truck by moving along the outside edge of the side to the rear end thereof and then swinging around said end onto the platform of said truck” and grasped the rear gate section (by only one hand, as argued) which moved and caused him to fall upon plaintiff. Plaintiff says the submission in Instruction No. 2 (and also in No. 3), given for defendant, that Robert “was mounting the truck to inspect the equipment,” eliminated from a consideration by the jury of the theory of Instruction No. 1 that Robert was negligent in swinging out from the outside of the truck to its inside (and grasping the loose tail gate section with one hand). The contention is without merit for the reason that it was not essential either to the plaintiff’s case or to the defense of contributory negligence how Robert got into the position in which he was, and had to be, to grasp the loose tail gate. Whether he boarded the side of the truck and moved to its rear along the ledge, or did so in some other manner, he was in the process of mounting the truck to inspect the equipment. Defendants were not required to hypothesize further in this situation of nondivergent essential facts. Hooper v. Conrad, Banc, 364 Mo. 176, 260 S.W.2d 496, 500 [2]. Sutton v. Fox Missouri Theatre Co., Mo., 356 S.W.2d 41, 49, cited by plaintiff, is inapplicable. The jury could not have been misled by the hypothesization of Robert’s mounting the truck to inspect the equipment in Instructions Nos. 2 and 3. “We must assume that the jury was made up of persons of ordinary intelligence who had a reasonable "knowledge and understanding of the words used. Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449, 453.” Elgin v. Kroger Grocery & Baking Co., 357 Mo. 19, 206 S.W.2d 501, 508. The instruction sufficiently informed the jury of the rule of law applicable, and it was not required that it contain “such technical accuracy as to be free from hypercritical objections.” Schmidt v. Windish, Mo., 304 S.W.2d 891, 895.

Paragraph VI of plaintiff’s motion for new trial, “The instruction [2] was erroneous because it contained a positive misdirection to the jury although it was a verdict directing instruction,” preserves nothing for review because it is too general, and does not point out wherein and in what respects there was a misdirection to the jury, and there was no specific objection to the instruction before the giving thereof during the trial. Civil Rule 79.03, V.A.M.R. Louis Steinbaum Real Estate Co. v. Maltz, Mo., 247 S.W.2d 652, 658 [17], 31 A.L.R.2d 1052; Rutledge v. Weisenborn, Mo.App., 142 S.W.2d 884, 887 [6], As to this ground, the court could not have ordered a new trial on its own motion because more than 30 days had elapsed from the time of filing of the motion, and the trial court had lost control of the judgment except as to matters properly presented in said motion. Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539 [3-7]; Moore v. Glasgow, Mo.App., 366 S.W.2d 475, 479; Civil Rule 75.01.

By assignment No. VII in his motion for new trial (Point VII here) plaintiff claims that Instruction No. 3 is erroneous in that it required him to warn Robert of the position of the tail gate when Robert was already aware of its position. Robert’s testimony (to which we must give full credence and view favorably, Highfill v. Brown, Banc, Mo., 340 S.W.2d 656, 661 [6,7]), was that he was generally aware of the position of the tail gate, but that he did not know it was loose and unsecured. Instruction No. 3 merely submitted that plaintiff “would and should have warned Mr. McDonald that the section of tailgate was loose and unsecured.” The requirement of warning thus did not relate to the position of the tail gate, but to the fact that it was loose and unsecured, so obviously it was not error.

The instructions being proper, the trial court erred in granting plaintiff a new trial. Highfill v. Brown, supra, loc. cit. 664 [11],

The order granting a new trial is reversed, and the case is remanded with directions to reinstate the judgment for defendants.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    CITY OF ST. LOUIS, Respondent, v. UNION QUARRY & CONSTRUCTION COMPANY et al., Appellants.
    No. 50773.
    Supreme Court of Missouri. Division No. 1.
    Sept. 13, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied and Opinion Modified on Court’s own Motion Oct. 11, 1965.

      Thomas F. McGuire, Acting City Counselor, Andrew J. Reis, Associate City Counselor, St. Louis, for respondent.
    Shaw, Hanks & Bornschein, by Claude Hanks, Clayton, for appellants.
   HOUSER, Commissioner.

This is a proceeding by City of St. Louis to condemn for park purposes land in the city consisting largely of an abandoned rock quarry being used by its owners, Union Quarry & Construction Company, Walter and R. Nick Skrainka, as a private dump. Commissioners awarded landowners $35,916.57. Trial of exceptions before a judge of the circuit court, sitting without a jury, resulted in a finding of damages in the same sum, $35,916.57, and a judgment affirming the report of the commissioners. Since landowners claimed damages in the sum of $83,500 and offered evidence in support thereof, we have jurisdiction of this appeal as the amount in dispute exceeds $15,000. State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., Mo.Sup., 350 S.W.2d 771; State ex rel. State Highway Commission v. Howald, Mo.Sup., 315 S.W.2d 786; Constitution, Art. V, § 3, V.A.M.S.; § 477.040, V.A.M.S.

The first question is whether the court erred in denying landowners a jury trial. This proceeding was instituted under the provisions of Art. XXI, § 3 of the Charter of the City of St. Louis, which provides that “Any party entitled to and desiring trial by jury of its rights to compensation shall file in the cause, before the assignment of the commissioners in each ease, written demand therefor, including therein a description of its property to be taken or damaged, and failure so to do shall be a waiver of the right of trial by jury.” Landowners did not file a written demand for a jury before the assignment of commissioners. Instead, they filed a motion for trial by jury on July 21, 1962, after the report of the commissioners was filed, after the amount of the award was paid into the registry of the court, and after the deposit had been paid to the landowners, less the amount due the collector for delinquent taxes.

Landowners claim that they have a constitutional right to a trial by jury,. Constitution, Art. 11, § 4; that there was no issue for trial by a jury until exceptions to the report of the commissioners were filed, and that their request, made shortly thereafter, was timely; that the charter provision requiring a request for a jury trial before the assignment of commissioners is illogical and unconstitutional, under Constitution, Art. 11, § 4, which preserves inviolate the right to trial by jury in all trials of claims for compensation when the rights of any corporation are affected by any exercise of the power of eminent domain.

This precise point has been ruled adversely to the contention of landowners in several cases. As late as November 13, 1961 this Court handed down the en banc decision of City of St. Louis v. International Harvester Co., Mo.Sup., 350 S.W.2d 782, 785, et seq., [4, 5], in which § 3 of Art. XXI was upheld on the ground that reasonable regulations and conditions may be made prerequisites for a jury trial, and unless a party to a suit complies with such regulations waiver of a jury trial may result. Three cases were cited in which it has been ruled that unless a request for a jury is timely made under this charter provision the right thereto is waived. 350 S.W.2d, l. c. 786. On the basis of these decisions this point is ruled against landowners without further comment.

The next question is whether the court erred in sustaining the commissioners’ award of damages. Landowners complain that the commissioners (and the circuit court) did not use the proper basis in arriving at the damages; that in fixing the market value of the condemned property (a hole in the ground used as an income-producing public dump) commissioners and court did not take into consideration the unique character of the land in question and its adaptability to its highest and best use, but employed an improper standard of value, namely, evidence of sales of an entirely different kind of property (lands in the area suitable for use as residential property).

This proceeding having been instituted under the Charter of the City of St. Louis (Art. XXI, §§ 3 and 7), the report of the commissioners has the effect of a jury verdict, is presumptively valid, stands and may not lawfully be set aside until the exceptor meets the burden of introducing sufficient substantial evidence to establish that the report was wrong in point of law or matter of fact. City of St. Louis v. Pandjiris Weldment Co., Mo.Sup., 270 S.W.2d 17. Landowners excepted to the commissioners’ report on two grounds: (1) that the award was grossly inadequate; (2) that in determining the amount of the damages the commissioners proceeded upon erroneous principles of law and refused to consider proper elements of value and damages. An exception based upon the exces-siveness or inadequacy of the award ordinarily involves a determination whether the circuit court abused its discretion or acted arbitrarily in sustaining the commissioners’ report. City of St. Louis v. Pandjiris Weldment Co., supra. Something more than a review of an exercise of discretion is involved on this appeal, namely, the determination of a question of law: whether the commissioners (and the circuit judge) applied the proper standards of value under the particular facts and circumstances of this case.

The facts are that the property was operated as a quarry until 1935, after which it was used as a public dump. In 1948 the city passed an ordinance requiring the owners to obtain a permit and (apparently) restricting the material to be dumped to noncom-bustibles. The owners obtained permits each year, and continued the operation as a private dump until the date of condemnation, June 27, 1962. They employed a manager, who kept books and complete records. A charge was made for dumping, $1 per truckload. Records for the 16 years preceding the taking show that an average of 20,000 truckloads of dirt and noncombustible material were dumped each year. Loads averaged 5 cubic yards. Landowners thus grossed $20,000 annually, on the average, from this operation. The quarry was only partially filled as of the date of the taking. Calculations show that as of that date it would have taken 625,000 cubic yards of material to fill the- hole so as to make it level with surrounding land, taking into account the factor of compaction. Figuring that they were handling about 100,000 cubic yards per year of uncompact-ed rubbish the hole would have been filled, not considering compaction, in something over 6 years; with compaction, it would take 10 or 11 years. Prior to the date of taking the owners sold some property adjoining the quarry (property suitable for use as building lots) for 20^ per square foot.

There are no other unfilled quarries or unfilled holes in the vicinity, and there have been no sales of quarries in recent years.

Landowners intended to continue their operation until the quarry was filled, then sell the land to A & P Company or Shell Petroleum for parking spaces or to the city for park purposes.

Landowners produced the testimony of two experienced and thoroughly qualified experts, John Doerr and Stephen Thornton, who appraised the quarry property at $75,-000 and $83,500, respectively. Using the method of capitalization of income, Mr. Doerr took the stream of income of approximately $20,000 per year reasonably to be expected for a period of 11 years, applied a discount factor to yield a present value of $64,950 to which he added the present worth of the property for use as building lots ($33,500 figured at 20(5 per square foot), discounted to yield a current market value of $11,741. The sum of these two figures, i. e. the present worth of the income stream plus the reversionary value of the land at the end of the income period, produced the appraisal figure of $75,000 (rounded out figures). This was based upon a 10% rate of discount. Whereas a discount rate of 6% is normal, the more conservative 10%, which produces a lower value, was used by Mr. Doerr because he considered that it reflected a truer value in this case. These estimates were based upon a detailed analysis of the income and actual expenses for the 5 years preceding condemnation. Mr. Doerr considered that $75,000 was the value of the property at its highest and best use; that this is what a well-informed buyer would be justified in paying and an informed seller would be justified in receiving.

Mr. Thornton also used the capitalization of income method. He arrived at the appraisal figure of $83,500 as follows: He figured the value of the land if sold as residential property at $33,500, based on 20(5 per square foot after the hole- would be filled in. Discounted back to present worth this figures $18,000. Investigation of the market on the dumping of noncombustible refuse revealed that the going rate would average about 30(5 a cubic yard. He calculated annual gross receipts of $18,750 based on 30^ per cubic yard. He calculated expenses of $9,950, with net earnings of $8,800 per year. Figuring that the pit would be filled up in 10 years, using a 6% discount rate, he arrived at a present worth of the income stream of 10 years of $64,-768. This, rounded out, plus the $18,000 above, added up to $83,500 present discounted value of the property at its highest and best use.

The city’s expert, Charles W. Herold, also thoroughly experienced and qualified, valued the property at $31,700. He took into consideration that the adjoining property sold at about 20(5 per square foot. He stated that the property condemned consisted of 3.818 acres, of which 1.84 acres were filled in to the level of the street; that the 1.84 acres were worth 25(5 per square foot, or $12,893.76; that the remaining 2.634 acres, which was a hole, was worth $6,000 per acre, or $15,804. The balance of the $31,700 he allowed as the value of fencing on the property. He regarded the highest and best use of the property as single residential family. He based his opinion that the value of the hole was $6,000 per acre on his experience, which he admitted might be said to be his guesswork. He said he was not permitted to consider what type of business was operating there, whether it was a profitable or a losing business.

This judgment must be reversed because the commissioners and court used an improper and worthless datum base for the valuation of the 2.634 acres. It is obvious that these bodies, while admitting and purporting to consider the evidence in support of the income approach, actually and in fact ignored and rejected the evidence of the highest and best use of the 2.634 acres. Accordingly, the cause must he remanded for further proceedings consistent with this opinion.

The ultimate objective in this case, as in all condemnation cases, is to enforce the constitutional mandate “That private property shall not be taken or damaged for public use without just compensation.” Constitution, Art. I, § 26. “Just compensation” means the full and perfect equivalent in money of the property taken, Clark v. United States, 8 Cir., 155 F.2d 157, but no more, for to award more than the value of the condemned property would result in the unjust enrichment of the condemnee. State ex rel. State Highway Commission v. Hackett, Mo.App., 370 S.W.2d 712. The “just compensation” referred to, generally speaking, is the “fair market value” of the property at the time of the taking. Union Electric Co. v. Saale, Mo.Sup., 377 S.W.2d 427 [1]; Union Electric Co. v. Pfarr, Mo.Sup., 375 S.W.2d 1; 4 Nichols on Eminent Domain, 3rd ed., § 12.2. The fair market value of land is what a reasonable buyer would give who was willing but did not have to purchase, and what a seller would take who was willing but did not have to sell. Union Electric Co. v. Saale, supra, 377 S.W.2d, l. c. 429. The landowner is entitled to the fair market value of the land at its highest and best use, City of St. Louis v. Vasquez, Mo.Sup., 341 S.W.2d 839; and in determining what constitutes the fair market value the uses of the land for which it is reasonably adapted or suited may be considered, including a special adaptation for a particular use, North Kansas City School Dist. of Clay County v. J. A. Peterson-Renner, Inc., Mo.Sup., 369 S.W.2d 159, 164, having regard to the existing business wants of the community. Union Electric Co. v. Saale, supra. If such peculiar adaptation adds to its value, the owner is entitled to the benefit of it. 29A C.J.S. Eminent Domain § 160. In determining fair market value each' case must be considered in the light of its own facts, not on the basis of some artificial rule, but of sound judgment and discretion on a consideration of all relevant circumstances. 29A C.J.S. Eminent Domain § 136(5).

The circumstances of this case are unique and different. This property is a special situation. It is principally an abandoned quarry, a hole in the ground. Because of the business wants of the community (the pressure for a place to dump refuse in a densely populated metropolitan center) the abandoned quarry has been converted temporarily into a landfill project, — a use different from that of an abandoned quarry; obviously a higher, better and more profitable use — an income-producing dumping ground, which when filled will be adaptable for another use, as a parking space or for park purposes. Many of the factors ordinarily considered in determining market value of real estate, such as the price at which the land was recently bought, the price at which similar and comparable land in the vicinity has sold at or about the time of the taking, other uses for which the land is now or in the immediate future will be adaptable or available, and the cost of improvements which increase the market value of the land, 4 Nichols on Eminent Domain, 3rd ed., § 12.31 [2], are nonexistent or inapplicable to the 2.634 acres.

In this unique situation, where the usual criteria are absent; where the land is devoted to the only apparent use to which it could be most advantageously and profitably applied, 4 Nichols on Eminent Domain, 3rd ed., § 12.31 [2]; where the character of the property is such that a profit is produced by the property itself without the labor of the owners being expended hereon, and where the profits derived from its use are the chief source of its value, evidence of such profits was properly admitted and is relevant as a criterion of the value of the property. Idem, §§ 12.312 [1]; 13.3 [2], fn. 34, p. 450.

This announcement is not in derogation or repudiation of the general rule that business profits are ordinarily not admissible evidence of the value of the land on which the business is located. We adhere to that rule, as announced in this state many times. St. Louis Housing Authority v. Bainter, Mo.Sup., 297 S.W.2d 529, 534 [6], citing City of St. Louis v. St. Louis, I. M. & S. Ry. Co., 266 Mo. 694, 182 S.W. 750; Tate v. State Highway Comm., 226 Mo.App. 1216, 49 S.W.2d 282 and City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149. And see 1 Orgel on Valuation under Eminent Domain § 162; 2 Lewis, Eminent Domain, 3rd ed., § 727. A reason often given for the rule is that evidence of profits derived from a business conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value. Accomac Realty Co. v. City of St. Louis, 347 Mo. 1224, 152 S.W.2d 100, 102. And see Shelby County R-IV School Dist. v. Herman, Mo., 392 S.W.2d 609 (decided July 12, 1965).

The general rule, however, must be given an exception ex necessitate in this case, where the business is inextricably related to and connected with the land where it is located, so that an appropriation of the land means an appropriation of the business ; where the evidence of net profits apparently is clear, certain and easily calculable, based upon complete records; where past income figures are relatively stable, average and representative, and future projections are based upon reasonable probability of permanence or persistence in the future, so that conjecture is minimized as far as possible, and where the body fixing the damages would be “at a loss to make an intelligent valuation without primary reference to the earning power of the business.” Orgel, supra, § 162, p. 655. For other reasons the variables are reduced to a minimum in this case. The period during which the income stream will continue to flow is fairly predictable. Many factors of uncertainty present in other types of cases are absent here: yields, weather, markets, supply and demand, uncertain fluctuations of labor costs, etc.

A comparable situation was encountered in the condemnation for a public park of Goat Island and Prospect Park, above Niagara Falls. On the matter of income from the premises the commission adverted to the general rule that the profits of a business transacted upon the condemned premises (in that case from charging admission to sight-seeing visitors) are not legitimate evidence of value, but felt compelled to consider and accord due weight to the evidence of income, by the absence of proof of market value. The commission referred to the necessity of being satisfied that the net income “has the element of permanency,” and that the income was derivable from the property itself and not from the skill of the management of the property, or advertising, and the capitalization of income method was given major consideration in arriving at the damages. Matter of State Reservation at Niagara, 16 Abb.N.C. (N.Y.) 159, l. c. 195, 198, 199, affirmed 37 Hun 537, 16 Abb.N.C. (N.Y.) 395.

It would' not be fair or proper to fix the market value of this property on the basis of its value as an abandoned quarry, because it is being operated in another capacity, as an income-producing venture of another kind. This increases its market value, and is a factor to be considered. The converse of this situation is seen in State ex rel. State Highway Commission v. Cox, 336 Mo. 271, 77 S.W.2d 116, where a strip of land along the side of a nonoper-ating quarry was condemned, and where the quarry was not being used for some other purpose. It was held that the refusal of an instruction offered by the landowner that the jury should not consider the fact that the quarry was not being operated was not error; that that fact may have had an effect (a depressing effect in that case) on its market value; that if the operation ceased because the business or wants of the community did not justify its operation, “it most certainly must have affected its market value.” 77 S.W.2d l. c. 119.

Comparable to the income from this dump is rental income from rent-producing properties, consideration of which is recognized as a means of determining actual market value. St. Louis Housing Authority v. Bainter, supra, 297 S.W.2d l. c. 535 [9]. See State ex rel. State Highway Commission v. Flynn, Mo.App., 263 S.W.2d 854 [13] for a direct holding that rental income is proper as a possible capitalisation factor to assist in the determination of actual market value.

The principle of capitalization of income in proper cases in the field of condemnation, and the application of a discount factor to arrive at present worth, has been recognized by this court. Land Clearance for Redevelopment Corporation v. Doernhoefer et al., Mo.Sup., 389 S.W.2d 780 (decided May 10, 1965). See 29A C.J.S. Eminent Domain § 168(2). This is a proper case for the use of the capitalization method and the application of a discount factor in fixing fair market' value. For the reasons given for the admissibility of evidence of net profits, the capitalization of the net income from this property is “not merely a relevant datum for the valuation of the property but [is] the best available measure of its value,” 1 Orgel on Valuation under Eminent Domain § 157, and apparently the only usable method. 29A C.J.S. Eminent Domain § 168(2), fn. 33.70, p. 725.

The judgment is reversed and the cause remanded to the circuit court with directions to order a new assessment by the commission or by three alternate commissioners, under the provisions of Art. XXI, § 7 of the Charter of the City of St. Louis, with instructions that as to the 2.634 acre tract they include in the assessment of benefits the worth of the net income stream as of the date of the taking, after applying a proper discount factor, plus the fair market value of the property at the end of the income period, properly discounted to the value as of the date of the taking, and any other necessary and appropriate instructions not inconsistent with the views expressed in this opinion.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

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

DONNELLY, J., not participating because not a member of the Court when the cause was submitted.

      . The operation not requiring any considerable skill, wisdom, ingenuity or labor on the part of the owners.

      . Record v. Vermont Highway Board, 121 Vt. 230, 154 A.2d 475, 480.

      . Shelby County R-IV School Dist. v. Herman, supra. The everdecreasing space available practically insures a continuous and persistent demand for the service offered, according to the evidence.


text:
    Fred B. SMITH and Faye L. Smith, Plaintiffs-Appellants, v. James Eldon MITCHELL and Goldie M. Mitchell, Defendants-Respondents.
    No. 51002.
    Supreme Court of Missouri, Division No. 1.
    Sept. 13, 1965.
    Motion for Transfer to Court En Banc or for Rehearing Denied Oct. 11, 1965.
    H. Gregg Privette, Kansas City, Buford L. Shankel, Overland Park, Kan., of counsel, for appellants.
    Joseph H. Glass, Kansas City, Cyrus Iceland, Olathe, Kan., and Donald L. Dorei, Kansas City, for respondents.
   HENRY J. WESTHUES, Special Commissioner.

This action was filed in the Circuit Court of Jackson County, Missouri, by plaintiffs seeking a rescission of a contract- with defendants whereby plaintiffs agreed to convey property in Jackson County, Missouri, to the defendants and defendants agreed to convey a motel in Olathe, Kansas, to plaintiffs.

The defendants filed a counterclaim -asking for specific performance of the contract. After hearing the evidence, the trial court entered a decree in favor of the defendants. Plaintiffs appealed. Title to real estate is directly involved, thus appellate jurisdiction is vested in this Court.

The plaintiffs, Fred B. Smith and Faye L. Smith, are husband and wife. At the time the contract was executed, they lived in a house in Raytown, Jackson County, Missouri. We shall refer to them as the Smiths. The defendants, James Eldon Mitchell and Goldie M. Mitehell, are husband and wife. At the time the contract was signed, they lived in a motel in Olathe, Kansas. We shall refer to them as the Mitchells.

In the contract, the Smiths’ property was valued at $22,000; the motel was valued at $90,000. The Smiths agreed to assume a mortgage on the motel and also to execute a note and second mortgage for the balance to make up the $90,000.

The Smiths, as grounds for rescission of the contract, claimed that the title to the motel was defective and that the Mitchells had misrepresented the income and the expense of operating the motel.

The most vital issue in this case is whether the Smiths were induced to sign the exchange contract by virtue of misrepresentations made by the Mitchells. Before making a statement of the evidence in detail, we shall dispose of a number of points raised in the brief filed on behalf of the Smiths,

Under point one of the brief, it is stated that this is a case in equity and “therefore triable de novo here.” That is the correct rule except strictly speaking the case is reviewed de novo on the record made in the trial court. Plaintiffs cited and quoted from the case of Townsley v. Thielecke, Mo., 349 S.W.2d 902. The rule was considered at length in that case at pages 906, 907 (1) (2). While cases in equity are reviewed de novo, it is also the rule that where a decree is based upon conflicting evidence, an appellate court will usually defer to the findings of the trial judge who is in a better position to judge the credibility of the witnesses. 349 S.W.2d l. c. 906(2).

In the next point briefed, it is stated, “The Jackson County Circuit Court was without jurisdiction of the subject matter as it was not authorized to decree specific performance of the real estate located in Johnson County, Kansas, and its decree herein is absolutely void.” It is our opinion that plaintiffs have-misinterpreted the effect of the decree entered by the trial court. It must be noted that plaintiffs filed this suit thereby invoking the jurisdiction of the court for a rescission of the contract. Defendants filed a counterclaim asking for specific performance. It is a rule of law that when a court of equity acquires jurisdiction of a case, it may dispose of all issues therein involved. The decree in this case required plaintiffs to execute a deed conveying the Missouri property to the defendants and to execute a note and mortgage on the Kansas property to the defendants. It was decreed that when such deed and note and mortgage were deposited with the clerk of the court, then the clerk should deliver defendants’ deed to the Kansas property to plaintiffs. According to the decree, the deed conveying the Kansas property to plaintiffs was in the possession of the clerk of the court. The decree further provided that in case plaintiffs refused to execute a deed conveying the Raytown property to defendants and refused to execute a note and mortgage on the motel the defendants should have judgment against the plaintiffs in the sum of $14,574.73 (the amount of the proposed note and mortgage). The decree further provided if and when the judgment was paid, then in that event, the decree should have the force and effect of a conveyance of the Missouri property to defendants and the clerk should deliver to plaintiffs a deed executed by defendants conveying the motel to plaintiffs. It is apparent that the court did not exceed its jurisdiction. The judgment or decree would upon certain events have the effect of conveying the Missouri property. The decree operated in personam in relation to the Kansas property. Plaintiffs cite and quote from the case of March v. Gerstenschlager, Mo., 322 S.W.2d 743. The quotation from that case, set out in plaintiffs’ brief, illustrates the difference between the judgment in the case before us and the one entered in the March case. Note a portion of the quotation: “The court found title to be in plaintiff in direct contravention of the deed in question, and ordered that the recorded judgment should operate as a conveyance if defendant failed to reconvey. Of necessity the recording would be in a different county.” 322 S.W.2d l. c. 744(2). In the March case, suit was filed in the City of St. Louis.; the land was located in St. Francois County, Missouri. We rule the trial court possessed jurisdiction to enter the decree in question. See 81 C.J.S. Specific Performance § 115a(2), p. 649, and 81 C.J.S. Specific Performance § 135, p. 700.

Point three of the brief states that “The trial chancellor erred in refusing to grant rescission because the contract had become void by its terms.” The assignment is a general statement and does not present any question for review. However, in the course of the argument, the plaintiffs stated, “The contract in question demanded defendants furnish merchantable title. To date, defendants have failed to do so.” The main objection seemed to be that a personal injury suit was pending against the Mit-chells which had been filed at the May 1961 Term of the Johnson County, Kansas, court. Olathe is located in that county. As explained in the evidence, if a judgment were entered during the May term, a lien on the property would date back to the day the suit was filed. The May term ended on September 2. Thereafter, no lien would attach if -the motel had "been conveyed or sold to another.

Mrs. Smith’s testimony included the following:

“Q And you refused to go through with this deal because you didn’t do any business at the motel, is that right?
“A That, and it had this lawsuit against -it.”

The contract in question was signed June 17, 1961. Possession of the motel was to be taken by the Smiths on July 1 and the Mit-chells were to take possession of the Ray-town property on that same day. However, possession was not taken by either party until July 8. The contract provided that the transfer of titles should be postponed until September 2, 1961, “if no judgment has been rendered against first parties in Suit No. 25852 in the District Court of Johnson County, Kansas.” On September 2, the Mitchells were prepared to close the deal. However, Mr. Smith, present at the time, stated that his lawyer was out of town and Mrs. Smith was ill and that he would not close the deal unless they were present.

The evidence showed that to the day of trial no judgment had been entered in the personal injury action; further, Mr. Leland, a lawyer at Olathe, Kansas, testified that the defects mentioned by the Smiths’ lawyer had been remedied; that a second mortgage had been released and the title to the motel was good, subject to a -mortgage which the Smiths were to assume. Furthermore, the evidence showed that the Nicholson Title Company, Jnc., had issued a title policy on the motel to the Smiths. The trial court was justified in finding that the title was good and the record contains no evidence to authorize a contrary finding.

The fourth point pertains to the question of whether plaintiffs were fraudulently misled as to the earnings of the motel. The evidence disclosed that the Smiths were interested in purchasing a motel. In April or May, they had begun negotiations to purchase a motel in Wichita, Kansas. Mr. Smith visited the motel and while there procured a C.P.A. report on its earnings. According to Mr. Smith, this report did not disclose the earnings claimed by the owner of the motel so the deal was abandoned. In June, a Mr. Joe Bright, who was in the business of selling motels, approached the Smiths about purchasing the motel in question. The Mitchells desired to sell because Mr. Mitchell had been transferred to Ohio by the firm by which he was employed. It may be stated here that most of the dealings with reference to the sale of the motel were conducted by Bright and the Smiths. The Smiths visited the motel a number of times and the Mitchells inspected the house in Raytown. The contract of exchange was, as above stated, signed on June 17, 1961. Possession of the properties was taken on July 8. The Smiths retained possession of the motel until December 5,1961, when they notified the Mitchells they were abandoning the motel.

There is much conflicting evidence as to what Bright and the Mitchells had stated with reference to the earnings of the motel as well as to the time the statements were made. The Smiths claimed that Bright and the Mitchells had promised to furnish proof of the claims as to the earnings and expenses. Much of this evidence by the Smiths was contradicted by Bright and the Mitchells. However, plaintiffs introduced a statement of earnings and expense which Mr. Bright evidently delivered to the Smiths before the contract was signed. In this statement, the income on the motel was stated to have been $17,029.50 for 1958; for 1959, $20,397.00; and for the first eight months of 1960, $15,006.00. The Smiths claimed that Bright and the Mitchells had stated that the earnings for 1960 had been about $23,000. If the business continued for the balance of the year in 1960, as it had been during the first eight months, the figure would be about $23,000. So, let us assume that the Smiths were told that the gross income on the motel for 1960 was about $23,000. The Smiths testified that they were promised proof of the income and expense of the motel which was never furnished. The Mitchells and Mr. Bright testified they gave to the Smiths all of the information requested. It is contended that the sales tax report showed that the income for 1960 was much less than claimed. Mr. Mitchell filed an amended report to the State of Kansas in the fall of 1961. A letter from the tax department showed the Mitchells had paid a sales tax on $21,-109.00. Mr. Mitchell testified that in case a motel unit was rented for a certain length of time, no sales tax was due; that there were some units rented for the time required when no sales tax was paid. The Smiths also claimed that the federal income tax return showed the income on the motel was much less than $23,000 for the year 1960. Mr. Mitchell stated he intended to file an amended return; that Mrs. Mitchell often cleaned some of the motel units and the slips or records on those units were stored in a different place from those made out by employees when they cleaned units; that the employees were paid on the basis of each unit which they cleaned; that those records were erroneously used as a basis for the total income when, in fact, the rental on the units cleaned by Mrs. Mitchell should have been included.

It is also contended that the income on the motel after the Smiths took possession was some evidence that the gross income had been misrepresented. They testified that for the period the motel was operated by them, a little less than five months, the gross income was $7,019 and the total expense was $6,751. However, Mr. Smith ad= mitted that of the $6,751 expense $3,607 represented payments on mortgages. Mrs. Smith, on direct examination, gave the following testimony:

“Q Mrs. Smith, why were you demanding the gross after you had been operating the motel for awhile ?
“A Did you say ‘why’ ?
“Q ‘Why,’yes.
“A Because there was no business. Business was just dropping off something terrible.”

On the basis of the above-given figures, the gross income for twelve months would have been about $16,000 or $17,000. Also, if business had dropped “off something terrible” it must have been much better'before the motel was taken over by the Smiths. There is evidence in the record that the Smiths did to some extent examine the records of the motel before the contract was signed.

It is argued in the Smiths’ brief that much of the Mitchells’ evidence was impeached and contradictory. That same argument may be made with reference to some of the Smiths’ evidence. It would serve no useful purpose to discuss this matter further. This is one of those cases wherein we must defer to the findings of the trial judge. Reviewing all of the evidence in this record, we are convinced that we should not reverse the decree of the trial court.

Under points five and six, plaintiffs contend that the trial court erred in entering a decree for specific performance because defendants did not prove their good faith; that the decree was against the weight of the credible evidence, punitive in nature, and lacked equity. What we have said with reference to the other points briefed renders unnecessary consideration of these last two assignments.

The judgment and decree of the trial court are hereby affirmed.

PER CURIAM.

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

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

DONNELLY, J., not participating because not a member of the Court when the cause was submitted.


text:
    STATE of Missouri, Respondent, v. Jimmie BAINES, Appellant.
    No. 51075.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
    James A. Bell, St. Louis, for appellant.
   PRITCHARD, Commissioner.

By amended information it was alleged that defendant had been convicted and imprisoned for the commission of three prior felonies, and it was therein charged that he did, on June 8, 1963, have in his possession and under his control 8.75 grams of the narcotic drug, the plant, Cannabis Sativa, commonly called marijuana, a felony under § 195.020, RSMo 1959, V.A.M.S.

Defendant in writing and orally before the court waived trial by a jury, and the same was accepted and trial was to the court. At the conclusion of the case the court made extensive findings of fact and conclusions of law upon the whole case and also upon defendant’s motion to suppress evidence (the marijuana) which was first submitted to another judge in pretrial hearing and which was refiled during the trial. Defendant was found guilty of the offense presently charged, and it was further found that he had committed the alleged prior felonies. Assessment of punishment was thereafter made at ten years imprisonment in the Department of Corrections. Defendant was allowed an additional thirty days within which to file a motion for new trial, which was filed on June 22, 1964, and overruled on September 8, 1964. In accordance with the previous assessment of punishment, the court, on September 15, 1964, sentenced defendant to ten years imprisonment in the Department of Corrections, and upon the same day defendant duly filed his notice of appeal.

Defendant has filed no brief. In this circumstance we review the ease upon matters properly presented in the motion for new trial and upon the record matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R.; State v. Jackson, Mo., 369 S.W.2d 199, 200 [1].

On June 8, 1963, officer Robert Richters of the St. Louis Metropolitan Police Department was in the neighborhood of 834 North Kingshighway in St. Louis, Missouri, at about 11:55 p. m. He entered a building at that address and went to the third floor thereof (defendant’s residence). As Rich-ters was about to knock on the door of the third floor it was opened by a Negro man who later identified himself as Jimmie Baines. Richters was then in front of the door with Detective Hoskins also on the steps just to the rear of him and a little to his right. Officers Jones and Lewis later came up behind the first two officers. Richters announced himself to be a police officer, and saw defendant throw a package, a small manila envelope, on the floor. Richters retrieved and examined the package which contained a greenish, “tobac-eoish” looking substance. He asked defendant what the package contained, and defendant answered that it contained marijuana. Richters placed his own initials on the package, put it into his pocket and later delivered it to Lieutenant Dell Watts who was in command of the police laboratory. When Richters turned over the envelope to Lieutenant Watts, they both signed a property receipt. When produced at the trial, Richters identified his initials and defendant’s name on the envelope which he had placed thereon at the time of the arrest. He also identified the substance produced by the state at the trial as being similar to that which was in the envelope at the arrest. Lieutenant Watts did not testify.

William H. Storer, chemist in the St. Louis Police Department Laboratory, identified State’s Exhibit 1, being an evidence envelope containing a yellow manila envelope (above identified by Richters) and a cardboard pillbox. Storer had received the envelope contents from Lieutenant Watts, his superior in the police laboratory. Thereafter he made an analysis- of the contents and determined that they were dried leaf fragments of the plant Gannabis Sativa, otherwise known as marijuana, 8.75 grams. The pillbox which he had received from. Lieutenant Watts contained a short segment of a burned cigarette butt, also being marijuana.

The court permitted Storer to relate the regular procedure and custom of the police laboratory in handling items of evidence. He testified that all of the laboratory personnel could accept evidence. When a piece of evidence is brought to the police laboratory for examination and is accepted by a member of its staff, an evidence receipt is made out. Such receipt provides pertinent information concerning the evidence. A copy thereof is retained with the evidence, and a carbon copy is given to the submitting officer. If the evidence is not examined at that time it is placed in an evidence locker until such time as it will be examined. The original evidence receipt, State’s Exhibit 2, was produced by Storer and admitted into evidence. When he received the envelope, State’s Exhibit 1, from Lieutenant Watts, it contained the evidence receipt, State’s Exhibit 2. The custom and practice with reference to making out receipts is invariable and has existed for at least the five years of Storer’s tenure.

At the time Storer received the envelope, State’s Exhibit 1, which contained an envelope which was part of its contents, the name “Jimmie Baines” was written thereon and also the initials “R.L.R.” The contents of the envelope on the day of trial were in the same condition as when he received them. Until the morning that he testified, the envelope, State’s Exhibit 1, was in a locked evidence cabinet at the police department laboratory where it was placed after Storer made his analysis of the contents on June 10, 1963.

On cross-examination, Richters stated he was with his brother officers at the address above stated looking for a person known to him to be a prostitute, one Sherrie Taylor. When he went into the apartment where defendant was he searched it, but did not have any warrant for defendant’s arrest. At the time he first entered, Sherrie Taylor was sitting at a kitchen table with one Mickens, and defendant was clad' only in his undershorts and a track shirt. All three of these persons were arrested, and all subsequently released, Sherrie Taylor being released when a city information against her for prostitution was refused. Prior to the officers going to the building they had received complaints that prostitution was being carried on there and that there was a large amount of male traffic in and out of that place.

Officer Hoskins testified that he was behind Richters at the time he started to knock upon the door and at which time defendant opened it. No- one else was with them at that time. Hoskins saw defendant and his act of throwing a package from his right hand to the floor. He also heard Richters question defendant as to what was in the package and defendant’s answer that it was marijuana. Through the open door of the third floor apartment Hoskins could see Sherrie Taylor, about whom the complaint of prostitution at the address had been made to the officers, and Elvis Mickens sitting at a table. Officers Jones and Lewis came up- to the apartment after the arrest of defendant, Sherrie Taylor and Mickens had been accomplished. Hoskins described the building at 834 North Kingshighway as having a stairway leading from the first floor to the second floor landing, then to the third floor where there was a hallway about four feet wide. The door which defendant opened was practically in front of the center of the stairway and about four feet away.

Defendant’s motion for new trial in its paragraph “b” attacks the court’s ruling on his motion to suppress evidence (the marijuana). He contends that the “search and seizure as herein made, violated defendant’s rights under Section 15 and 19 or article 1, of the constitution of the State of Missouri, and amendment 5, 14, and 15 of the constitution of the United States * * The first reason (1) urged is that there existed no probable cause for his arrest. The evidence above set forth indicates otherwise. Officer Richters and his companions came to the residence of defendant to investigate a complaint of prostitution. Defendant of his own volition opened the door to his third floor apartment. As he stood there he dropped an envelope in plain view of two officers. He was asked what the envelope contained and he answered that it was marijuana. That showed the. commission of a felony under § 195.020, supra, and- it was in the officers’ presence. “Police officers are authorized to arrest upon reasonable cause to suspect that one is guilty of a felony, either upon their own knowledge or upon facts ‘communicated to them by others * * *.’ ” State v. Witt, Mo., 371 S.W.2d 215, 218 [4, 5]. Certainly an officer would be justified to arrest without warrant one who actually had the possession of marijuana, a felony, within his presence and which he had observed. State v. Jefferson, Mo., 391 S.W.2d 885, 888 [1, 2]. Here, there was no seizure of the envelope containing the marijuana. Defendant threw it to the floor in plain view of the officers, after which officer Richters picked it up. In State v. Jefferson, supra, loc. cit. 391 S.W.2d 888 [3, 4], the pertinent rule is stated, “Where the articles sought to be suppressed were in plain sight of the arresting officer, were dropped or thrown away by the person arrested, and were picked up by the officers, the articles are admissible in evidence over an objection that they were seized as the result of an unlawful search.” See also the analogous case of State v. Owens, Mo., 391 S.W.2d 248, where the defendant, within the view of the arresting officer, threw upon the ground a quantity of heroin which was in a chewing gum wrapper, and it was held (loc. cit. 391 S.W.2d 252) that “the arrest was lawful and certainly as to the heroin, the only offense involved here, there was no invasion of the right of ‘the people’ to ‘be secure in their persons * * * from unreasonable searches and seizures’ * *

The second reason urged, that the entry was made as a result of an illegal trespass, and third, that the entry and the impending seizure were void from their inception, are obviously without merit under the above facts and cited cases.

Assignments “c”, “d” and “e” relate to the admissibility of the envelope and its contents originally dropped by defendant in his apartment. He says that the court erred in admitting “certain envelopes and certain notes under the guise of records kept in the general course of business,” and “that there was a break in the chain of possession of the narcotics in question and the testimony did not by circumstantial evidence exclude every reasonable hypothesis that the narcotics in evidence were one and the same as were admitted in evidence, * * Although there is some discussion in the record as to whether the narcotic envelope, when it reached the police laboratory, was a business record,, the trial court did not rule the matter upon that ground but upon his conclusion that the chain of possession was sufficiently traced. By defendant’s last quoted assignment, above, we assume that he meant to say that the evidence did not exclude every reasonable hypothesis that the narcotic in evidence was the same as that dropped by defendant prior to his arrest. The evidence need not exclude every possibility that something in the interim of police possession disturbed or interfered with the exhibit. It is sufficient if the evidence shows reasonable assurance that it was the same and in the same condition. See State v. Smith, Mo., 222 S.W. 455, 459 [6]; and the concurring opinion in State v. Myers, 351 Mo. 332, 172 S.W.2d 946, 951. The evidence here, to which we have alluded, positively shows that the exhibit of the narcotic contents and envelope was identified as the same or similar and was in the same condition at the trial as when dropped by defendant. The court did not err in overruling the motion to suppress evidence on any of the alleged grounds, and assignments “c”, “d” and “e” are overruled.

Assignment “a”, that the finding of the trial court is against the weight of the evidence and the law, is insufficient to preserve anything for review. Supreme Court Rule 27.20(a), V.A.M.R., State v. Butler, Mo., 353 S.W.2d 698 [2]. We remark in passing that the evidence adduced was certainly sufficient to support the trial court’s finding of defendant’s guilt in possessing marijuana as charged.

Defendant’s last assignment “f”, that the “seizure in question was in violation of defendant’s rights under article 15 and 19 of the constitution of the United States of America,” is vague and is also repetitive of the constitutional questions presented and above ruled. Assignments “a” and “f” are overruled.

No errors appear in the matters specified for our review in Supreme Court Rules 28.02 and 28.08, V.A.M.R.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.