author: SAMUEL E. SEMPLE, Special Judge.

text:
    John JORDAN, Plaintiff-Appellant, v. Clarence EBERT, Defendant-Respondent.
    No. 31729.
    St. Louis Court of Appeals. Missouri.
    Feb. 16, 1965.

      Robert B. Baker, Ellington, for plaintiff-appellant.
    William H. Bruce, Jr., Centerville, for defendant-respondent.
   SAMUEL E. SEMPLE, Special Judge.

This is a suit brought by plaintiff, the appellant herein, for the conversion of a 1951 Ford automobile by defendant. The defendant filed a counterclaim asking for a reasonable allowance for storing the automobile and for other damages. A trial before a jury was had and at the conclusion •of plaintiff’s case, the trial court directed a verdict for the defendant and entered a judgment thereon without disposing of defendant’s counterclaim. Plaintiff filed an appeal to this court. Thereafter this court •of its own initiative dismissed the appeal as being premature. Thereafter plaintiff filed a Motion to Dismiss defendant’s counterclaim and the same was submitted to the trial court and taken under advisement. Five days later the trial court entered an •order granting defendant leave to file a ■dismissal of his counterclaim and ordered the counterclaim dismissed without prejudice. The court in the same order overruled plaintiff’s Motion to Dismiss. Plaintiff again appeals from the judgment for the defendant on plaintiff’s cause of action entered by the trial court.

The plaintiff’s principal contention is that the trial court erred in directing a verdict for the defendant at the close of plaintiff’s evidence, therefore the evidence will be set out in some detail.

Plaintiff’s evidence revealed that he was the owner of a 1951 Ford four door sedan and that he had loaned the car to his son, Jackie Jordan, several weeks previous to March 15, 1961. On the evening of March 15th plaintiff’s brother, George Jordan, his wife, and two daughters, while driving on Highway 21 past the Catholic Church near Lesterville, Missouri, saw plaintiff’s 1951 Ford sedan parked beside the road. The next day, George Jordan, his wife, daughters, and a Mrs. Bequette, drove back to check on the automobile. The car was still parked at the side of the road in the same place. George Jordan checked the car, tested the lights, and found that the battery was down. Later in the day Jordan and a Mr. Bequette went to the car and with Jordan driving and Bequette pushing with his car, the plaintiff’s Ford was pushed up the road about a quarter of a mile to Mr. Bequette’s trailer located about 100 yards from defendant’s garage and filling station. George Jordan told plaintiff where his car was parked. On March 17th, the car was observed still parked by the Bequette trailer. On March 18th, plaintiff drove a truck he owned to his son’s home and picked up the keys to the Ford and drove to where it was parked by the Bequette trailer. Plaintiff took a battery out of his truck and put it in the Ford, started the motor, checked the car and found that it was running in good shape. About that time defendant Ebert and his two teenaged sons came over from the filling station and asked when plaintiff was going to pay what he owed. Plaintiff replied that he had been out of work and did not have any money in his pocket but would pay the bill as soon as possible. Defendant then informed plaintiff that he was going to keep the car until he was paid and told plaintiff “Leave it sit right there, I mean business.” Plaintiff said that he would be back and that the car had better be there when he got back. Plaintiff removed the keys to the car and the battery he had installed and left. Later plaintiff returned with his brother, George Jordan, and Mr. Bequette, and found that his car was gone and upon investigation saw it parked in defendant’s garage. Thereafter plaintiff tried without success to obtain help from the prosecuting attorney to recover his car. Plaintiff testified that he had owed defendant a bill in the amount of $26.30 for a tire and gasoline for some six months. That after going to the prosecuting attorney he went to a finance company and borrowed $26.30 and had the company send the money to defendant. That he had never given anyone authority to store his car and the car was never returned to him by defendant. On April 6th he found his car between two roads about fifty yards from defendant’s garage with two flat tires, and had it pulled to the Woods Garage.

Plaintiff further testified that an examination was made of his car at the Woods Garage and discovered that the back seat was out and the tools in the trunk were gone; that damage was done to the chrome dashboard and it was necessary to wire around the switch to get the car started. That after getting the motor started it ran rough; that he took the car home and let it sit over night. The next day he drained the oil from the crankcase and observed that about a half pint of water came out ahead of the oil. That after putting in fresh oil the motor ran rough and didn’t have any power. There was no direct evidence introduced or proof offered by plaintiff as to the amount of the damage to the automobile in terms of money. On the basis of this evidence the plaintiff rested and the court thereafter directed a verdict for defendant. The defendant has not filed a brief in this court.

It appears that plaintiff’s contention that the trial court erred in directing a verdict for the defendant is well taken and it is concluded that plaintiff did make a sub-missible case of conversion by the defendant of plaintiff’s automobile.

Plaintiff, to make a submissible case for conversion, was required to present evidence (1) of his possession or right to possession at the time of the alleged conversion or an ownership which carries with it the right to immediate possession. Brede Decorating, Inc. v. Jefferson Bank and Trust Co., Mo, 345 S.W.2d 156, 164; (2) of the taking of the property of plaintiff against his will and in open defiance of plaintiff’s ownership and right of .possession. Detmer v. Miller, Mo.App, 220 S.W. 2d 739, 745; Davis v. Nash Central Motors, Mo.App, 332 S.W.2d 475, 480, and (3) damages resulting from the act or acts of conversion. With respect to damages it should be noted that “* * * [ajlthough no actual loss is shown, if there has been a technical conversion the defendant is liable for at least nominal damages.” Schulte v. Florian, Mo.App., 370 S.W.2d 623, 626, and authorities therein cited.

The plaintiff in this case presented substantial evidence that he owned the 1951 Ford sedan and was actually in physical possession of it on March 18, 1961, that on the same date defendant did in a threatening manner forbid plaintiff to move his car from where it was parked by the Bequette trailer and shortly thereafter plaintiff’s car was observed parked inside of defendant’s garage some 100 yards from where plaintiff left it. Such acts were in opposition to the rights of plaintiff and constituted an actual conversion of plaintiff’s property. Schulte v. Florian, supra; Proctor v. Home Trust Co, 221 Mo.App. 577, 284 S.W. 156, 159. It should be noted that the plaintiff recovered his automobile approximately three weeks after defendant assumed possession. However, the fact that defendant did not permanently deprive plaintiff of his property is not required to make out a technical case of conversion. The recovery of the property could operate only in mitigation of damages and not as a bar to the action. Schulte v. Florian, supra, and authorities therein cited.

With respect to the element of damages, plaintiff offered evidence that the back seat of the car had been torn out, that the chrome on the dashboard had been cut, that the starter switch would not work, that the crankcase had water in it and the motor did not have any power. There was no proof of physical damage to the car in terms of money. However, even though no actual monetary loss for physical damage to the car was shown in evidence, the fact that there had been a conversion entitled the plaintiff to at least nominal damages. Schulte v. Florian, supra. It is therefore concluded that plaintiff made a prima facie case and was entitled to have the same submitted to the jury.

Plaintiff appears to contend that because defendant did not introduce any evidence in support of his counterclaim at the time of the trial that his subsequent voluntary dismissal thereof operated as a' dismissal with prejudice. Plaintiff argues that as defendant failed to assert his counterclaim at the time of the trial he waived any right to later voluntarily dismiss the counterclaim without prejudice and thus have the opportunity to reassert it at a later time. The transcript shows that at the conclusion of plaintiff’s evidence the court declared a recess, the defendant filed a Motion for Directed Verdict, and the court of its own motion gave Instruction A directing the jury to return a verdict in favor of defendant and against plaintiff. That when court reconvened after a short recess the. court explained to the jury that the plaintiff had failed to make a case at law against defendant and that he was directing a verdict in favor of defendant and against plaintiff and directed a member of the jury as appointed foreman to step up and sign the verdict Thereupon the court announced the day’s trial was concluded. There is nothing in the record as to whether defendant asked to proceed on his counterclaim or whether the parties and the court even considered the question of disposing of the counterclaim at that time. We are unwilling to state on the record of this case that defendant either intentionally or inadvertently failed to assert his counterclaim. A counterclaim may be voluntarily dismissed (Civil Rule 67.04, V.A.M. R.) under the same conditions that a plaintiff may dismiss his action without prejudice (Civil Rule 67.01, V.A.M.R.) and thus a defendant may dismiss his counterclaim without prejudice at any time before the same is finally submitted to the jury. In this case, the counterclaim not having been finally submitted to the jury and there having been no previous dismissals without prejudice, Civil Rules 67.01 and 67.04, V.A.M.R., the defendant properly obtained a voluntary dismissal of his counterclaim without prejudice.

For the reasons set out herein, the judgment of the trial court is reversed and the cause remanded for a new trial.

RUDDY, P. J., and WOLFE, J., concur.


source: Caselaw Access Project

author: WOLFE, Presiding Judge.

license: Public Domain

text:
    Curtis E. GEORG and Mabel H. Georg, His Wife, (Plaintiffs) Respondents, v. Richard E. KOENIG, (Defendant) Appellant.
    No. 31746.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.
    Rehearing Denied Feb. 12, 1965.
    Donald U. Beimdiek, St. Louis, for appellant; Armstrong, Teasdale, Roos, Kramer & Vaughan, St. Louis, of counsel.
    Biggs, Hensley, Curtis & Biggs, St. Louis, for respondents.
   WOLFE, Presiding Judge.

This is a suit brought to enjoin Richard E. Koenig, the defendant, from interfering with the construction of a driveway that was being built by the plaintiffs. The driveway runs from the residence of the plaintiffs to the private roadway of the subdivision in which the plaintiffs and the defendant reside. The court issued a temporary restraining order and an order to show cause why an injunction should not be granted. Thereafter issues were joined and a trial resulted in a judgment for the plaintiffs. The defendant moved for a new trial and his motion was overruled. He then appealed to the Supreme Court of Missouri, and that court found that it was without jurisdiction and transferred the cause to this court. Georg v. Koenig, Mo., 370 S.W. 2d 356.

The plaintiffs and the defendant lived in Ladue Ridge Subdivision in St. Louis County. This subdivision has 22 lots, and they are all served by a private roadway that runs to the east and west. It is known as Ladue Ridge Road. The lots which are on both sides of the roadway front upon it. The easement for the road is 50 feet wide, but the only paved part of it is a strip about 22 feet wide down the center. This leaves a strip of about 14 feet in width upon either side of the paving.

The abutting lot owners, including the parties hereto, have treated that portion of the 14-foot strip upon which they abut as the front part of their respective lots, and have planted and landscaped it up to the paved roadway. The plaintiffs own Lot 2, which is directly east of Lot 3 owned by the defendant. The plaintiffs purchased Lot 2 after it had been improved by the erection of a house upon it. A driveway connecting with Ladue Ridge Road was laid at the time the house was constructed. This driveway flared out to either side as it connected with the paved portion of the road. Where it flared to the west it encroached upon that part of the unpaved easement in the front of the defendant’s lot.

Defendant Koenig noticed this in 1953, but did nothing about it. But in 1958 Koe-nig informed Georg that his driveway, where it flared along the edge of the paved road, encroached upon Lot 3 which belonged to Koenig. Georg told him at that time that Koenig did not own the property since the flare of the driveway was within the 50-foot easement. In 1960 Georg submitted a written request to the Board of Trustees for permission to resurface his driveway as it then existed. The defendant Koenig sent a letter to the Trustees complaining of the location of the portion of the driveway that extended over his property line. But the Trustees granted the requested permission to resurface the driveway.

Plaintiffs intended to lower the driveway and curb it. It was dug up, and while it was in this state Koenig, the defendant, put a board along his property line and sodded the part where the flare had been. At this point plaintiffs applied for and obtained a temporary order restraining Koenig from interfering with the construction of the driveway and from damaging or destroying it, after posting a $1,000 bond. After the temporary restraining order was issued the plaintiffs’ driveway was completed, with the flare about which the defendant complained. The encroachment extends in a triangular area. Starting from the point where the driveway first flares over the defendant’s property, the distance is 6.40 feet back from the edge of the paving. It widens to a distance of 2.56 feet where it j oins the paving. At the hearing in October all of the foregoing facts were adduced. Plats and photographs of the lots were in evidence, together with the “Restrictions Governing Ladue Ridge.” The “Restrictions” contain the following :

“I. RIGHTS, DUTIES AND POWERS OF TRUSTEES
“1. The Trustees of Ladue Ridge are herein invested with the rights, duties and powers to maintain Ladue Ridge Road, negotiate with the State Highway Department any matters concerning the entrance and exit from Ladue Ridge Road, take whatever measures are necessary to insure the privacy and safety of Ladue Ridge Road and to take all other measures necessary in their discretion, to maintain Ladue Ridge as a subdivision of fine homes.”

The trial judge made his findings of fact which' embraced all of those which we have set out above, and in his conclusions as to the law he stated:

“That title to the center of Ladue Ridge Road is well vested in the abutting landowners; that therefore, defendant, together with his wife, owns the fourteen-foot strip of land between the east and west extension of the property lines of his said property to the center of the paved roadway of Ladue Ridge Road, subject, however, to the easement set out in the subdivision plat and referred to in the indenture aforesaid.”

Pie went on to hold:

“4. That pursuant to the powers vested in the Board of Trustees by the recorded indenture, the majority of the Trustees, in their discretion, have the authority to permit plaintiffs to reconstruct the driveway within the same boundaries it previously occupied.”

As stated, he enjoined the defendant from interfering with the portion of the driveway which crossed his property.

There can be no doubt that title to the property is vested in the defendant and his wife, as the court held. Georg v. Koenig, 370 S.W.2d 356, supra. However, as to the rights of the Trustees to hold the easement for road purposes, that is governed by the indenture under which they hold the easement for the road. In Coleman v. Lill, Mo.App., 191 S.W.2d 1018, l.c. 1020, involving the authority of the trustees of a subdivision known as Ladue Hills, we stated:

“[1] It is an elementary principle in the law of trusts that in the execution of a trust the trustee is bound to comply strictly with the directions contained in the trust instrument defining the extent and limit of his authority and the measure of his powers. The trust instrument prescribes the extent and limits of his authority.”

The above case was cited with approval by the Missouri Supreme Court in Ginter v. City of Webster Groves, 349 S.W.2d 895.

Applying the above-stated rule to the indenture in question, we find that the Trustees are empowered “to maintain Ladue Ridge Road.” Certainly the encroachment was not necessary for the maintenance of the road. Then they are empowered to “negotiate with the State Highway Department any matters concerning the entrance and exit from Ladue Ridge Road.” This obviously has no relation to the private driveways of the property owners fronting upon Ladue Ridge Road. The next authority granted is to “take whatever measures are necessary to insure the privacy and safety of Ladue Ridge Road.” The shape of the defendant’s driveway and its encroachment have nothing to do with either privacy or safety. The last authority invested in the Trustees by the indenture is “to take all other measures necessary in their discretion, to maintain Ladue Ridge as a subdivision of fine homes.” The overlapping driveway certainly had nothing to do with the quality of homes or of the subdivision. We therefore hold that Georg had no right to enter upon the defendant’s land, and the Trustees had no power to confer the right.

The trial court erred in enjoining the defendant. We reverse the judgment entered, dissolve the restraining order, and remand the cause for the determination of damages, if any, that the defendant suffered by reason of the restraining order.

ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.

RUDDY, J., not participating.


author: SPERRY, Commissioner. PER CURIAM.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. John M. PARKER et al. and Raymond P. DeShon and Catherine Arline DeShon, Defendants-Appellants.
    No. 24090.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.

      Vernon N. Kneib, St. Joseph, for appellants.
    Robert L. Hyder, Minor C. Livesay, Earl H. Schrader, Jr., Kansas City, for respondent.
   SPERRY, Commissioner.

This is an appeal by Raymond P. and Catherine Arline DeShon from a jury verdict and judgment thereon, in their favor, in the sum of $6,000.00, for damages in condemnation of real estate for public purposes. '

The first allegation of error relied on by 'defendants is the giving of instruction No. 5, which is as follows:

’■‘The Court instructs the jury that in •this'case the burden of proving damages rests upon the Defendants. Unless damages such as those defined in other instructions have been proved by á preponderance on greater weight of. the credible evidence, none should be allowed.”

Defendants cite, in support of their contention, this court’s decision in State ex rel. State Highway Commission v. Cady, 372 S.W.2d 639, 640, where it was held that a taking of private property for public use constitutes a prima facie case, giving rise to a right to have the value of the same determined by a jury. The instruction there ruled was, in effect, a direction to disallow damages.

However, the language used in the instruction here considered was approved in State ex rel. State Highway Commission v. Baumhoff, 93 S.W.2d 104, 108-112 (Mo.App.). It differs, to some extent, from the instruction disapproved .in the Cady cáse; and the facts of this case differ from those obtaining in the Baumhoff case. Here, the entire tract of land affected was taken whereas, in the Baumhoff case, only a part of a tract was taken.

The instruction should not be used in this kind of case. However, the jury awarded damages in the amount of $6,000.-00. This amount was well within the range of the evidence on this subject. We cannot say that defendants were prejudicially affected by the giving of the' instruction. Furthermore, our Missouri Approved Instructions, covering eminent domain cases, became effective January 1st, 1965. They will preclude further use of this type of instruction.

It is also contended that error was committed because of the admission of hearsay evidence, over the objection of the defendants. Defendants’ motion for a new trial contains no complaint based on the 'admission of incompetent evidence, hearsay or other. This point is, therefore, not before us for review. Civil Rule 79.03', V.A.MiR., State ex rel. v. Williams, 263 S.W.2d 444, 445 (Mo.App.).

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.

BROADDUS, J., not participating.


author: J. P. MORGAN, Special Commissioner. PER CURIAM:

text:
    Jacqueline M. HEEMBROCK, Plaintiff-Appellant, v. David T. STEVENSON, Defendant-Respondent.
    No. 31576.
    St. Louis Court of Appeals. Missouri.
    Feb. 16, 1965.
    Wentker & McColloch, Andrew H. Mc-Colloch, St. Charles, for plaintiff-appellant.
    H. K. Stumberg, Niedner, Niedner & Moerschel, Robert V. Niedner, St. Charles, for defendant-respondent.
   J. P. MORGAN, Special Commissioner.

Plaintiff’s suit against defendant stemmed from an alleged courtship and was in three counts seeking: (1) recovery of monies loaned defendant (2) recovery of monies expended by plaintiff for medical care and attention during her pregnancy, and (3) support and maintenance for hér child.

The trial court rendered judgment on Count I for $2248.00 and no appeal was taken, but'pontiff has appealed from, thp-dismissals of Counts II and III. Her brief in neither “Points Relied On” nor “Argument” cites any authorities or arguments in support of the proposition that the court erred in dismissing Count II and must he considered as abandoned. Rafferty v. Levy, Mo.App., 153 S.W.2d 765; La Grange Reorganized School District No. R-VI v. Smith, Mo., 312 S.W.2d 135. Thus leaving the one ultimate question- — is defendant civilly liable for the support and maintenance of his alleged child born out of wedlock?

Plaintiff’s argument makes it obvious she is aware of the law of this State, but very forcefully contends, “ * * * this Court should depart from the supposed common law rule of non-liability to support a child born out of wedlock because that rule is not suited to the conditions and needs of the people of this State and is repugnant to present day conceptions of legal, social and moral duties and obligations. It is impossible on principle to distinguish between the duty to support a child born in wedlock and the duty to support a child born out of wedlock when the basis for the duty is based upon parentage, and arises out of the helplessness of the child, and the drawing of a line in all cases of birth in lawful wedlock is artificial and arbitrary, there being no reason in law or nature to cause the child born out of wedlock to suffer additional burdens by reason of the illicit acts of the parents.”

Plaintiff further contends that the provisions of Section 559.350, V.A.M.S., in making defendant subject to criminal prosecution necessarily created a civil liability for the support of his alleged child. This section was last amended in 1953 to add, “ * * * it shall be no defense to such charge that the father does not have the care and custody of the child * * *.”

The last contention cannot be sustained for the imposition by the legislature of criminal sanctions against doing or not doing some act does not automatically include the authority for civil actions based upon violations of such a criminal statute. As expressed by the Supreme Court in Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, loc. cit. 126: “We think it may be correctly stated that a statute which creates a criminal offense and provides a penalty for its violation, will not be construed as creating a new civil cause of action independently of the common law, unless such appears by express terms or by clear implication to have been the legislative intent. * * * ”

The question presented has often been before the appellate courts of this state, and its appearance in both criminal and civil cases has generally followed each legislative amendment to Section 559.350. Missouri Digest, Bastards; Annotations, Sec. 559.350, V.A.M.S. Our courts have consistently construed the criminal statute strictly and refused to extend liability beyond the expressed intention of the legislature.

Although involving criminal prosecution under Sec. 559.350 and prior to the 1953 amendment, the concluding paragraph of the Supreme Court opinion in State v. White, 363 Mo. 83, 248 S.W.2d 841, 844, is significant: “ * * * A change of the established rule as to custody and support of illegitimate children and the creation of any broader rights or remedies is a matter for the Legislature, which could in such legislation provide adequate procedure for determining paternity.”

Again, subsequent to the trial of this cause and in light of the 1953 amendment, all questions now raised were reviewed by the Kansas City Court of Appeals in the civil case of James - v. Hutton, Mo.App., 373 S.W.2d 167. After detailing recent legislative action, it was stated, “ * * * Thus it appears that within the last 17 years the General Assembly of the State of Missouri has three times rejected the concept of a civil determination of paternity and support in the matter of illegitimate children. By such action the General Assembly has said that the public policy of the State of Missouri is the law under the decisions of the Supreme Court and the Courts of Appeal which have held that there is no civil obligation for the support of illegitimate children as far as the father — either alleged or admitted — is concerned. The actions of the Legislature in this regard are an effective answer to plaintiffs’ argument that the Courts should alter the present common law of Missouri.”

It appears that the effectiveness of plaintiff’s argument must be determined in the legislative forum. For this reason, your Commissioner recommends that the judgment of the trial court be affirmed.

PER CURIAM:

The foregoing opinion by MORGAN, J., Special Commissioner, is adopted as the opinion of the court. Accordingly, judgment of the trial court is affirmed.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


author: HOGAN, Judge.

text:
    Ralph N. MATTA, Plaintiff-Respondent, v. Charles Edwin WELCHER and Joe Harding, Incorporated, Defendants-Appellants.
    No. 8224.
    Springfield Court of Appeals. Missouri.
    Feb. 10, 1965.

      John R. Martin, Rex Titus, Richart, Titus & Martin, Joplin, for defendants-appellants.
    Karl Blanchard, Robert E. Seiler, Seiler, Blanchard & Van Fleet, Joplin, Graham W. Rogers, Lynch & Rogers, Shreveport, La., for plaintiff-respondent.
   HOGAN, Judge.

This is an action for personal injuries resulting from the collision of two motor vehicles. The jury returned a verdict for the plaintiff and against both defendants in the sum of $8,000.00. After an unavailing motion for new trial, the defendants have appealed.

The accident in question occurred shortly after 9:00 A.M. on March 22, 1962, either on or near the edge of Highway 71 in McDonald County, about one mile north of the Missouri-Arkansas boundary. At the time, it was fully light and the visibility was described as “unlimited.”

At the place involved, the highway is .a; two-lane blacktop highway running generally north and south .and is approximately 27 to 28 feet wide. To the east of the highway, running parallel, there is a gravel driveway or parking area, and at the east edge of the gravel area there are a number of business establishments, one of which is referred to as Hillcrest Manor, or “the liquor store.” The highway appears to be straight in this vicinity, but some distance south of the point of collision the road slopes or inclines to the south. During trial, considerable emphasis was laid by the parties upon the “sight distances” to the south from the point of collision, but it is sufficient here to say that from the approximate point of impact near the east edge of the highway' and about 20 feet north of the liquor store, a car coming north could be seen at least 355 to 360 feet away.

At the time of the accident, defendant Welcher, admittedly on company business, was traveling south. Mr. Welcher, a salesman, intended to call at the Hillcrest Manor to attempt to sell a “walkin cooler.” The plaintiff and four companions, all members of the Air Force, were riding north in an automobile owned by one of the group and. being driven by another. The airmen, including the plaintiff, were on the way from-their base near Shreveport, Louisiana, to Des Moines to participate in a bowling; tournament.

The plaintiff’s theory of submission,, broadly speaking, was that the defendant failed to observe the plaintiff’s vehicle approaching from the south and turned left across the highway directly into its path, thereby causing the collision. Plaintiff’s evidence was that he and the members of his group had begun their trip about midnight, and about 7:00 A.M. had stopped for breakfast “some place in Arkansas.”" After breakfast, a Sgt. Curtis took over' the driving and continued driving until; the accident occurred. The plaintiff, seated; in the front seat, had been dozing until a moment or so before the accident; he shut his eyes in anticipation of the impending collision and did not see the two vehicles collide.

As Sgt. Curtis related the incident, he was driving north, and as he “crested the slope, or hill” he saw the defendant’s vehicle entirely in the west (southbound) lane traveling south. Curtis estimated his speed, when he first saw the oncoming vehicle, to be about 60 to 65 miles per hour. The defendant, when first seen by Curtis, gave no sign of any intention to turn left. When the plaintiff’s vehicle had come within 150 to 200 feet of the defendant, as Curtis estimated the distance, the defendant’s vehicle “started to edge across” the pavement. Curtis applied his brakes and sounded his horn. Finding himself unable to slacken his speed sufficiently to avoid the collision, Curtis turned his automobile to the right when he came within “maybe six or ten feet” of the defendant, because he thought that “by turning, we’d sort of roll with the punch, rather than hit him head on.” The attempt to turn the vehicle aside was to no avail, “had no effect on the automobile whatever, sliding,” and the plaintiff’s vehicle, still skidding, struck the defendants’ vehicle “broadside” near the east edge of the pavement and “ended up” on the east side of the highway, “out in the gravel area.”

As the defendant recalled the collision, he had started to turn left about 20 feet north of the liquor store, having looked for traffic ahead and behind, then “flipped on [the] signal light,” and began to turn. When Welcher was “over the line two or three foot,” he observed the other vehicle coming toward him “at a pretty high rate of speed.” After a “moment of hesitation,” Mr. Welcher concluded he had “a better chance” to avoid the collision by attempting to complete his turn than by attempting to turn aside, so he “immediately stepped down on [the] passing gear” and “got off the highway as fast as [he] could.”

In any event, the two vehicles collided either near the east edge of the paved part of the road or a few feet off the road to the east, and the plaintiff, riding in the front seat, was injured when the two vehicles. ■ struck. Other facts will be more specifically noted in the course of the opinion.

The defendants first maintain that the trial court erred in refusing to receive evidence tending to show the average speed of the plaintiff’s vehicle during that part of the trip preceding the accident. The defendants’ position is that the first 350 to 375 miles of the trip had been covered in such a short time, considering the nature of the route taken, as to indicate consistent negligence and recklessness in the operation of the plaintiff’s vehicle. They call our attention to the fact that they were not, by this evidence, attempting to show excessive speed at the very time of the accident, but instead argue that their tendered evidence indicates Sgt. Matta either acquiesced in or failed to protest against the consistently negligent and imprudent operation of the vehicle in which he was riding, and therefore tends to show contributory negligence on his part. The defendants distinguish the principles involved from those considered in Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353, and cite us to Happy v. Blanton, Mo., 303 S.W.2d 633; Cunningham v. Pulver, Mo., 327 S.W.2d 227; and State v. Feger, Mo., 340 S.W.2d 716.

It was developed during the trial that the plaintiff and his companions had begun their trip between midnight and 1:00 A.M. and had traveled 350 to 375 miles before becoming involved in this casualty. They were riding in a 1959 Pontiac, apparently in good condition. This automobile belonged to one Ed Shadier, who drove during the first six or seven hours of the journey. During that time, several stops were made for coffee and gasoline, and the group paused to have breakfast “some place in Arkansas” about 7:00 A.M. There is no evidence to indicate what their maximum or minimum speed was during the time preceding the accident, and the witnesses were unable to recall with any certainty the condition of the route or routes over which they had traveled. Sgt. Curtis’ estimate was that they had traveled the first 350 to 375 miles since “a few minutes after midnight,” while plaintiff was of the opinion that they left about 1:00 A.M. Shadier did not testify. The accident happened shortly after 9:00 A.M.

The defendants called Sgt. Victor McKee, a member of the State Highway Patrol, and, having shown that he was familiar with Highway 71 between Shreveport and Jane, Missouri (near the place involved here), offered to prove “the condition of the road, the towns that you have to go through [and] the speed limits in Arkansas and Louisiana,” for the purpose of showing that Sgt. Matta and his companions “must have exceeded the speed limit,” and because “these boys were on a joint venture, and they all would have equal right of control.” This offer was refused.

We have no doubt that the precedents cited by the defendants announce sound principles, but it is unnecessary to review them here. Likewise, it is unnecessary to consider in detail the various situations in which evidence may be received concerning the manner of driving prior to reaching the scene of an accident. Admittedly, precedents can be found indicating that in some cases evidence of excessive speed, particularly over a dangerous or poorly maintained route, may indicate negligence, e. g., Atlantic Coast Line R. Co. v. Pidd, 5 Cir., 197 F.2d 153, 156 [11], and South Texas Coaches v. Eastland, Tex.Civ.App., 101 S.W.2d 878, 883 [11], but those cases involve considerations very different from those involved here. We also bear in mind that the defendants sought to impute contributory negligence to Sgt. Matta as a member of a joint enterprise, and we think there could conceivably be a case in which evidence of a co-enterpriser’s failure to protest or warn the driver would be admissible to show imputed contributory negligence, if the vehicle had been operated at an excessive speed and in a reckless manner for some distance prior to reaching the scene of the accident. Clay v. Sammons, Ky., 239 S.W.2d 927, 930 [1]; Anno., 46 A.L.R.2d 23, 56-57.

It is another matter to say that the trial court erred prejudicially in excluding the defendants’ tender. We consider it obvious that at some antecedent point in time and distance, evidence of the manner in which the plaintiff’s vehicle had been driven would become so remote as to be wholly inadmissible. There had been interruptions in the continuity of movement of the plaintiff’s automobile and, at one point, a change of drivers. Evidence of the conduct of a wholly different driver at some distant point would not only have been logically irrelevant; its admission would have been downright prejudicial to the plaintiff, if only because contributory negligence cannot be proved by showing similar prior acts of negligence. Even disregarding the vagueness and generality of defendants’ offer of proof, and assuming that it might have been logically relevant upon the pleaded issue of imputed contributory negligence, had it been more fully developed, still the fact that evidence is logically relevant in some degree does not imperatively require its admission where, as here, the probative value of the evidence is slight and its admission involves consideration of many collateral matters which are remote in time and conjectural'in their nature. Conley v. Kaney, Mo., 250 S.W.2d 350, 353 [3,4]; McDonald v. Kansas City Gas Co., 332 Mo. 356, 369, 59 S.W.2d 37, 43 [14] [15], The defendants’ tendered evidence would not only require consideration of the nature of 375 miles of highways, some far distant from the point of collision, but would involve the jury in speculation whether a particular speed — not necessarily constant — was negligent under whatever unknown traffic conditions existed on those highways at the time plaintiff’s party traveled over them. Beyond that, there had been at least two drivers during the period covered by defendants’ tender. We believe the offer of proof was properly rejected.

The defendants’ next two assignments of error present more difficult questions. The defendants say that the trial court wholly refused to submit the issue of plaintiff’s contributory negligence, the existence of a joint enterprise, and the issue of imputed contributory negligence to the jury for their consideration, and that this refusal was error. The difficulty presented is that the record is somewhat ambiguous as to the trial court’s intended ruling, and the defendants’ assignments of error in their brief are so imperfectly developed that we cannot fairly reach the points they attempt to present.

The defendants maintained all along that the plaintiff was barred from recovery, either by his contributory negligence as an ordinary guest passenger or by imputed contributory negligence as a member of a joint enterprise. They made some proof on these issues. They presented a motion for directed verdict at the close of all the evidence, but it contains no reference to contributory-negligence. They did formulate and offer a number of instructions dealing with ■ their pleaded defenses. These in-structio'ns were refused by the trial court. The court remarked that the tendered instructions — on both kinds of contributory negligence — were being refused because it felt-there was no substantial evidence upon which to- base such instructions. Upon further inquiry whether the court would refuse any instruction counsel “would attempt to draw,” the court understandably objected “to counsel endeavoring to put the court on any such spot.” As we have indicated, the defendants take this as an outright refusal to charge the jury in any manner on their pleaded defenses.

Possibly the trial court’s remarks were so intended. In any event, we can understand counsel’s reluctance to press the matter to the point of discourtesy or seeming disrespect. So far as ordinary contributory negligence is concerned, we agree with the trial court that no substantial jury question was made. The circumstances which the defendants would have had the jury consider on this issue were, at least in part, too remote to have a logical bearing on plaintiff’s contributory negligence at the time of the accident. What is more, we think the defendants mistook the duty imposed on the plaintiff as a guest passenger, if that was his status. While a guest has the duty to warn the driver of dangers which are reasonably manifest or known to the guest in the exercise of ordinary care, the guest is under no obligation to keep a constant lookout and make continuous suggestions. Jenkins v. Wabash R. Co., Mo., 322 S.W.2d 788, 799 [14, 15]; Ketcham v. Thomas, Mo., 283 S.W.2d 642, 645 [1, 2] ; Toburen v. Carter, Mo., 273 S.W.2d 161, 165 [6, 7]. The defendants argue that Sgt. Matta was obliged, in the circumstances, to remain awake and alert, but there is nothing in the record to suggest that such vigilance was required in the exercise of ordinary care, and we conclude that no jury question was made on the issue of plaintiff’s contributory negligence as a guest passenger.

The existence of a joint enterprise is another matter. Plaintiff and the other occupants of the vehicle were members of a bowling team, and they were going to Des Moines for the express purpose of participating in a bowling tournament. It is in-ferable that plaintiff and his companions were members of a larger group, for plaintiff’s witnesses mentioned another vehicle, a “station wagon,” also being driven to Des Moines, in which the bowling equipment was stored.

At midnight, or shortly thereafter, plaintiff and the other members of the bowling team (Shadier, Curtis, Rice and Lippincott) met at a local bowling alley. They agreed that they would use Shadler’s car for the trip “since his family wasn’t there.” It was also agreed that each member of the party except Shadier would contribute $10.00 each “to take care of the gas, and oil.” Though it' does not appear that the group agreed upon a route by name or number, they had agreed to “drive straight through,” and that they would “trade off on driving and sleeping in the car.” Shadier, the owner of the car, started driving and drove for the first six or seven hours of the trip. During that period, the other occupants of the vehicle conversed or slept. Either three or four stops of unspecified duration were made for coffee and gasoline. When a stop was made for breakfast “some place in Arkansas,” 'Curtis asked Shadier if he “wanted a little relief for a- while,” and Curtis thereupon took over the .driving. Curtis was driving when the accident occurred.

It is no longer open to question in this jurisdiction that if an occupant of a motor vehicle is engaged in a joint enterprise with the driver and is injured through the concurrent negligence of the driver and some third person, the contributory negligence of the driver, if any, is imputable to the occupant and will bar recovery from the third person. This is true whether or not the trip is made for a business purpose. We are of the view that the evidence, taken as a whole, permits the inference that there was a joint enterprise between Sgt. Matta and his companions. They had an agreement to share expenses, a common-destination, a common purpose in making the trip, an apparent agreement to proceed over a particular route, and an agreement to alternate in the operation of the vehicle. Doubtless much authority could be found to the effect that no one of these 'considerations would establish the existence of a joint enterprise as a matter of law, or conclusively as a matter of fact. Nevertheless, we conclude that a jury question was made on this issue.

The trouble with defendants’ position on this appeal is that they have not sustained their burden of establishing reversible error upon the record. Even though the defendants’ evidence made an issue on their pleaded defenses, they were still under a duty to formulate and tender correct instructions ' on those subjects, Anderson v. Welty, Mo.App., 334 S.W.2d 132, 140 [16], and the trial court was under no duty to give their instructions unless they were substantially correct. Southwestern Bell Telephone Co. v. Chester A. Dean Co., Mo., 370 S.W.2d 270, 279 [10, 11], We are sure the appellants recognize those rules for they formulated and submitted a number of instructions on the subject of imputed con-tributary negligence and the existence of a joint enterprise. The defendants went further and, in their motion for new trial, objected to the trial court’s refusal to give certain of their tendered instructions and sought generally to justify the requests they had made. In this court, however, they simply make the point that “the court erred in ruling as a matter of law that plaintiff was not engaged in a joint venture,” and point to no specific request or requests which were erroneously refused. In net effect, they have simply laid a number of tendered instructions before this court with the argument that one of them should have been given; they do not say which one, nor why. Rule 83.05, relating to the contents of briefs, not only contemplates a particular statement of the errors complained of, but specifically requires that if a point relates to the refusal of instructions the instructions requested be set forth. Quite aside from this, sound appellate practice makes it incumbent upon the appellant who assigns error to the refusal of instructions to call attention in his brief to the specific request which was erroneously refused, and to show why it was error to refuse it in the circumstances of the case. Otherwise, a respondent is deprived of a fair and reasonable opportunity to answer the points made by an appellant, and if the appellate court undertakes to make an independent search of the record for error, it becomes to that extent an advocate for the appellant, which in itself is unfair to the respondent. Morris v. Willis, Mo., 338 S.W.2d 777, 780; Ambrose v. M. F. A. Co-operative Ass’n Mo., 266 S.W.2d 647, 650. We are reluctant not to rule matters on their merits, but since the defendants have not developed their points relating to the existence of a joint enterprise and imputed contributory negligence specifically, we cannot fairly reach the question of prejudicial error in the trial court’s refusal of these instructions.

The defendants next assign error to the giving of plaintiff’s Instructions 3 and 4, maintaining that they do not hypothesize sufficient facts to guide the jury in determining whether the defendants were negligent, but merely give the jury a “roving commission to speculate and to make their own determination as to what conduct constitutes negligence.”

Plaintiff’s Instructions 3 and 4 were his principal verdict-directing instructions. Instruction 3, after abstractly advising the jury of defendant Welcher’s duty to maintain a careful and vigilant lookout ahead, and advising them that there was no dispute that Mr. Welcher did turn left across the highway, then continued by telling the jury that if they found that “ * * * when defendant Welcher was at * * * the point * * * where he began his left turn, [plaintiff’s vehicle] * * * was so close that the making of a left turn by defendant Welcher would create a traffic hazard of imminent collision * * * and that plaintiff’s automobile was in a position * * * where defendant Welcher * * * could have seen plaintiff’s oncoming car * * * and [defendant] * * * failed to see said oncoming car * * * until after defendant Welcher had turned left * * * and was negligent * * * and * * * that said negligence, if so, directly contributed in causing the casualty,” then their verdict would be for the plaintiff. Instruction 4, after advising the jury that the driver of a motor vehicle intending to make a left turn into a private road or driveway must yield the right-of-way to any oncoming vehicle approaching so closely that the making of a left turn would create a traffic hazard, and advising them that there was no dispute that the defendant was driving south with the intention of making a left turn, and was then acting as defendant Harding’s agent, continued, in substance: “ * * * if you find * * * that when the vehicle operated by * * * Welcher was at * * the point [where defendant Welcher] began his left turn * * * plaintiff was approaching * * * in a position to be seen * * * and was so close that the making of a left turn * * * would create a traffic hazard of imminent collision * * then it was the duty of defendant * * * to yield the right of way * * * and if you find that said defendant failed to do so * * * and was negligent * * * and * * * as a direct result of such negligence * * * the vehicles collided,” then their verdict would be for plaintiff.

The defendants’ argument in this connection is that both instructions are too abstractly stated. They say that the relative speeds and locations of the two vehicles should have been hypothesized along with the point of impact in relation to the highway, and that the instructions merely set out a general principle of law and then tell the jury that if they find the defendant violated that standard, he is negligent, without specifically hypothesizing the circumstances in which Mr. Welcher acted.

We consider the defendants’ criticisms to be without substantial merit. In the first place, the instructions are supported by the evidence, taken from the plaintiff’s point of view. A jury could have found that as the plaintiff was riding north on a straight highway at a time when there was no other traffic on the road, and visibility was almost unlimited, the defendant turned left across the highway in front of the plaintiff, and a collision resulted. Plaintiff’s vehicle was visible some 355 to 362 feet south of the point where Mr. Welcher began to turn, and presumably could have been seen for an appreciable interval before the turn was commenced. Mr. Welcher began to turn when the plaintiff’s vehicle was within 150 to 200 feet away, and it was then too late for the plaintiff’s vehicle to stop short of a collision, although it was being driven within the speed limit. A jury could have inferred that defendant Welcher failed to see the oncoming, plainly visible automobile until he was “probably over the [median] line two or three foot” and that he then “elect[ed] to go on” and immediately “stepped down on [the] passing gear” to “get off the highway as fast as [he] could.” Plaintiff’s basic theory of submission seems to have been that the defendants’ duty was governed by Section 304.021 (6), which requires a vehicle intending to make a left turn in these circumstances to yield the right-of-way to any vehicle approaching from the opposite direction when the making of a left turn would create a traffic hazard; both Instructions 3 and 4, it will be seen, essentially submit a violation of that statute, in slightly varying language. Both submit defendant Welcher’s turn as being negligent because he turned when plaintiff’s vehicle was “so close that the making of a left turn would create a traffic hazard of imminent collision,” and appear to be based on the premise that whether defendant Welcher saw the plaintiff’s vehicle approaching so close at hand as to create danger of a collision if he turned, but turned anyway (Instruction 4), or saw plaintiff’s vehicle and appreciated the hazard imperfectly, and attempted to outrun it (Instruction 3) he could be guilty of negligence in violating Section 304.021(6). In this particular instance, we think plaintiff’s premise was sound. Cf. Smith v. D. C. Transit System, Inc., D.C.Mun.App., 153 A.2d 658, 660 [3] [4].

Aside from such considerations, however, we are of the view that plaintiff’s factual hypothesis was sufficient. Although, as we have said, a verdict-directing instruction must hypothesize and require a finding of all the elements essential in law to establish the proposition upon which the verdict is based, Gaffner v. Alexander, Mo., 331 S.W.2d 622, 627 [3]; Carson v. Evans, 351 Mo. 376, 379, 173 S.W.2d 30, 31 [1]; Ritchie v. Burton, Mo.App., 292 S.W.2d 599, 609-610 [13], these instructions do not submit a bald legal conclusion to the jury. The submission of. defendants’ liability was based on a statutory violation, and generally it is sufficient to couch the verdict-directing instruction substantially in the language of the statute, unless the evidence establishes an excusable violation (which is not the case here) or the statute itself creates a standard of conduct so ambiguous that it calls for judicial construction. May v. Bradford, Mo., 369 S.W.2d 225, 228-229 [7] [8]; Miles v. Gaddy, Mo., 357 S.W.2d 897, 902 [5] ; sec Pender v. Foeste, Mo., 329 S.W.2d 656] 660-661 [6] ; Gaffner v. Alexander, supra, 331 S.W.2d at 626-627 [2], In this case, the plaintiff’s required finding was that defendant Welcher turned when plaintiff was “so close that the making of a left turn * * * would create a traffic hazard of imminent collision.” This is substantially the language of the statute.

We agree with defendants that the scope of defendant Welcher’s duty to the plaintiff at some particular, specific point in his progress across the highway might have been more precisely stated if the relative positions of the two vehicles, the speed of plaintiff’s approaching vehicle, and the manner and dispatch with which the turn was being made, had all been hypothesized, but we cannot agree that it was necessary or even desirable to hypothesize the facts in such detail. The instructions do not declare that violation of the statute is negligence, but require the jury to find as a fact that plaintiff’s vehicle was “approaching so closely as to create a traffic hazard of imminent collision,” and require a finding that Welcher’s turn at such a time was negligent. Since the statutory provision itself, in this case, is specific and unambiguous, Scott v. Gray, Mo., 337 S.W.2d 38, 42 [4, 5]; Creech v. Blackwell, Mo., 318 S.W.2d 342, 350 [6], it is our view that plaintiff’s hypothesis of the negligent act charged is explicit, at least to the degree required by current authority, and is not open to the charge that it creates a “roving commission” by its generality. May v. Bradford, supra, 369 S.W.2d at 228-229 [7] [8]; Miles v. Gaddy, supra, 357 S.W.2d at 902 [5]; Creech v. Blackwell, supra, 318 S.W.2d at 350 [6], Further, we have some doubt of the accuracy of an instruction which would limit the defendants’ duty to “yield the right-of-way” to some particular point in the progress of his left turn. As we construe the statute, Welcher’s duty to yield arose when it reasonably appeared (or should have appeared) that plaintiff’s approach had then created a “traffic hazard,” or as it was expressed here, “a traffic hazard of imminent collision,” and continued so long as it was possible for him to have stopped, slackened, or turned aside to let plaintiff’s vehicle pass. Herr v. Ruprecht, Mo., 331 S.W.2d 642, 648-649 [5, 6] [8, 9]; Wilson v. Toliver, 365 Mo. 640, 652, 285 S.W.2d 575, 582 [10]. We conclude there was no prejudicial error in giving Instructions 3 and 4 on behalf of the plaintiff.

The defendants’ final assignment is that the verdict is excessive. They contend that the verdict is excessive by the sum of. $4,-500.00 and cite Rauch v. McDonnell Aircraft Corp., Mo.App., 303 S.W.2d 226 and Parrinello v. Rulo Investment Co., Mo.App., 349 S.W.2d 416, as authority for their position.

There is no question here that the plaintiff was injured, although it is not clear how he sustained his injury, which was described as rather “uncommon.” After the collision, the plaintiff found himself unable to walk; he discovered that his left shoe was off and his foot was swollen on top. He was taken to a hospital in Neosho, Missouri, where clinical and X-ray examination disclosed that he had sustained a complete dislocation or “avulsion fracture” of the second cuneiform bone, with a chip fracture of the cuboid bone. These two bones, along with five others, form the posterior half of the skeleton of the foot. Though we are not anatomical experts, as we understand it, these small bones, together with a complex system of ligaments which bind them together, form part of the longitudinal and transverse arches of the foot, which function to take the jar out of walking and give resiliency in weight bearing. Dislocation of these bones, or tearing and stretching of the ligaments which bind them, can cause disturbance of the ability to walk or stand properly. In this case, the second cuneiform bone was completely dislocated, or “popped clear out of its bed,” and it was necessary to reduce the dislocation by open reduction. This was done, and on the following day the left foot and leg were enclosed in a plaster cast and Sgt. Matta was returned to his base. Dr. Carter, who first examined and treated the plaintiff, stated that he considered the injury to be a “severe” injury. The injury undoubtedly caused pain at the time. There is some weakening of the arch structure of the left foot. The plaintiff also associates a sprained back or some back strain with the injury.

In his brief, the plaintiff stresses that he is an electrician in the Air Force and that his work requires him to stand on the balls of his feet, or to squat in somewhat cramped positions, and that this activity sometimes causes pain in his left foot. He argues here that quite possibly in the future he will require an operation to “fuse” the bones in his foot, and that arthritis might develop at the site of the chip fracture. Qualified physicians gave evidence that such were the possibilities; but viewing the evidence most favorable to the plaintiff, as we do, we find ourselves unable to say that the possibility of the development of arthritis in plaintiff’s foot or the likelihood that further surgery will be required are anything more than contingent or possible consequences, which of course are not properly compensa-ble in damages. The plaintiff’s testimony clearly shows that he was apprehensive concerning his ability to remain in his present position, without reclassification, and eventually to retire and receive retirement benefits, but we are unable to find any record indication, showing with any reason - able certainty that he is likely to become disabled in the future as a result of this injury so as to lose his present classification or the benefits he expects to accrue from it.

Sgt. Matta testified that he was not restricted in any way from doing any job in the Air Force at the time of trial. There are no restrictions to any type of duty on plaintiff’s medical record, and except for a period of three months following the accident, he has been on regular duty. Air Force physicians know of his injury but their “form of treatment” has been to tell plaintiff to “do what you can do.” The back injury or condition which plaintiff associated with the accident had, at trial time, given the plaintiff no trouble for over two months. The plaintiff still bowls but is not on a bowling team. He still plays golf; he “used to be able to play 27 and 36 holes, sometimes, but can’t get past 18, now.”

It would probably serve no useful purpose to reiterate all the basic rules by which we are guided in determining whether a verdict under review is excessive, beyond saying that it is primarily the function and prerogative-of the jury to award an injured plaintiff such sums as will reasonably compensate him, and the appellate power to reduce a verdict should be exercised with caution, particularly where the trial court has refused to order a remittitur. Turner v. Yellow Cab Co. of Springfield, Mo.App., 361 S.W.2d 149, 157-158. The authorities recognize, however, that the courts are interested in “reasonable uniformity of awards” for similar injuries. Johnson v. Missouri-Kansas-Texas R. R. Co., Mo., 374 S.W.2d 1, 6 [8, 9]. Having considered the diminished purchasing power of the dollar and cases involving awards of damages for reasonably similar injuries, we conclude that the verdict is excessive in the sum of $4,000.00. If, therefore, plaintiff will remit the sum of $4,000.00 within fifteen days, the judgment will be affirmed, as of the date of its rendition, for $4,000.00; otherwise the cause will stand reversed and remanded for a new trial on all issues. It is so ordered.

RUARK, P. J., and STONE, J., concur.

      . McComb v. Vaughn, 358 Mo. 951, 957-958, 218 S.W.2d 548, 552 [6-8]; Hodges v. Hill, 175 Mo.App. 441, 448, 161 S.W. 633, 634-635 [1,2]; Calcaterra v. Iovaldi, 123 Mo.App. 347, 353, 100 S.W. 675, 676-677; I Wigmore, Evidence, § 199, pp. 677-681 (3rd ed. 1940); 38 Am.Jur., Negligence, § 316, p. 1015.

      . Donahoo v. Illinois Terminal R. Co., Mo., 275 S.W.2d 244, 251 [7]; Mendenhall v. Neyer, 347 Mo. 8S1, 893, 149 S.W.2d 366, 374 [13] ; Pence v. Kansas City Laundry Serv. Co., 332 Mo. 930, 939, 59 S.W.2d 633, 636 [8, 9]; Smith v. Wells, 326 Mo. 525, 547-548, 31 S.W.2d 1014, 1025 [12]; Tannehill v. Kansas City, C. & S. Ry. Co., 279 Mo. 158, 170-172, 213 S.W. 818, 821-822 [3]; Roddy v. Francis, Mo.App., 349 S.W.2d 488, 491 [1]; James v. Berry, Mo.App., 301 S.W.2d 530, 531 [1]; Counts v. Thomas, Mo.App., 63 S.W.2d 416, 419.

      . Smith v. Wells, supra, 326 Mo. at 547— 548, 31 S.W.2d at 1025 [12] (“a joint journey , * * * either of business ' or pleasure”) ; Tannehill v. Kansas City, S. & C. Ry. Co., supra, 279 Mo. at 172, 213 S.W. at 822 (“upon either pleasure or business bent * * * ”); James v. Berry, supra, 301 S.W.2d at 531 [1] (fishing and sight-seeing trip); Roddy v. Francis, supra, 349 S.W.2d at 491 [1] (sight-seeing trip); Counts v. Thomas, supra, 63 S.W.2d at 419 (“a common purpose * * * whether for business or pleasure * * * ”).

      . Coleman v. Bent, 100 Conn. 527, 124 A. 224, 225-226 [2, 3] [4]; Grubb v. Illinois Terminal Co., 366 Ill. 330, 8 N.E. 2d 934, 938-939 [11]; Greenwell’s Adm’r v. Burba, 298 Ky. 255, 182 S.W.2d 436, 440-441 [6, 7] [8]; Derrick v. Salt Lake & O. Ry. Co., 50 Utah 573, 168 P. 335, 337 [2]; Prosser, Torts, § 65, p. 366 (2d ed., 1955); Restatement, Torts, § 491, comments (c) and (g), pp. 1274, 1277. See also Weintraub, The Joint Enterprise Doctrine in Automobile Law, 16 Cornell L.Q. 320, 330 (1931): “ * * * normally it is a question for the jury whether the driver has, by virtue of the agreement to share expenses and the other circumstances, relinquished his exclusive right of control.”

      . All references to statutes and rules are to RSMo (1959), Y.A.M.S. and V.A.M.R., unless otherwise noted.

      . Hamilton v. Crowe, 175 Mo. 634, 645, 75 S.W. 389, 392 [5]; University Bank v. Major, 229 Mo.App. 963, 969, 83 S.W. 2d 924, 928 [10]; LaBella v. Southwestern Bell Telephone Co., 224 Mo.App. 708, 716, 24 S.W.2d 1072, 1077 [7]; Jesel v. Benas, 177 Mo.App. 708, 713-716, 160 S.W. 528, 529-530 [2, 3].

      . It will be understood that the law being applied here pertaining to the form and sufficiency of instructions is that which applied prior to the effective date of present Rule 70.01.

      . Parrinello v. Rulo Investment Co., supra, 349 S.W.2d 416, 421, 422 [R-7] [8]; Cline v. City of St. Joseph, Mo.App., 245 S.W.2d 695, 701-703; Moses v. Kansas City Pub. Serv. Co., 239 Mo.App. 361, 378-379, 188 S.W.2d 538, 548-549; Sloan v. Farmer, Mo.App., 168 S.W.2d 467, 472 [10].


author: RUARK, Presiding Judge.

text:
    Cad NATIONS and M. F. A. Mutual Insurance Company, Plaintiffs-Appellants, v. Arthur RAMSEY and Myra Ramsey, Defendants-Respondents.
    No. 8350.
    Springfield Court of Appeals. Missouri.
    Feb. 11, 1965.

      James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintififs-appeliants.
    James C. Bullard, Dalton & Treasure, Kennett, for defendants-respondents.
   RUARK, Presiding Judge.

This is an appeal from a judgment dismissing a petition for declaratory judgment on the ground of failure to state a claim upon which relief can be granted.

The petition of plaintiffs-appellants Nations and M.F.A. Mutual Insurance Company charged that M.F.A. insured the liability of Nations in the operation of his automobile; that Nations had a collision with an automobile in which Helen Ann Ramsey, a minor, was riding. Helen Ann Ramsey claimed she was injured and thereafter defendants Arthur Ramsey and Myra Ramsey, individually and as parents of Helen Ann, did settle and release all claims against Nations and M.F.A. and agreed to indemnify them for all costs and damages incurred as a result of any action which might be brought by such minor. Thereafter, Helen Ann Ramsey, by defendant Arthur Ramsey, as next friend, brought suit against Nations on account of the injuries in the aforesaid collision, and

“6. Plaintiffs state that by the institution of the aforesaid action by Helen Ann Ramsey the defendants have breached their contract and indemnifying agreement and have caused and will continue to cause the plaintiffs loss, expense and damage by reason of the aforesaid breach.
“7. The defendants deny that they are obligated under the aforesaid contract and indemnifying agreement to reimburse plaintiffs for the cost and expenses incurred by reason of the prosecution of the aforesaid suit; there is an actual controversy between the parties concerning the construction and legal operation of the aforesaid contract and indemnifying agreement, and plaintiffs are entitled to a declaration of its (sic) right arising under the said instrument.
“WHEREFORE, plaintiffs pray that the Court decree and declare that the aforesaid contract and indemnifying agreement is lawful and binding and that the defendants are liable to plaintiffs for all costs, damages or costs, including attorneys fees, court costs, expenses of investigation, the amount of any judgment, if any, obtained by Helen Ann Ramsey against plaintiff, Cad Nations, and any other expenses incurred by plaintiffs arising out of the institution and maintenance of the aforesaid damage suit against plaintiff, Cad Nations, in violation of the aforesaid instrument.”

Attached to and incorporated in the petition is the indemnifying release as follows:

“FOR THE SOLE CONSIDERATION of One Hundred Fifty and 00/100 ($150.00) Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned, individually and as parents and natural guardians, hereby release and forever discharge Cad C. Nations, his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, none of whom admit any liability but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of whatsoever kind or nature, and particularly on account of bodily injuries sustained by Helen Ann Ramsey, a minor 19 years of age, or arising out of damage or loss, direct or indirect, sustained by undersigned in consequence of an accident on or about the 13 day of December, 1961, at or near on Independence Street in Kennett, Mo.
“As further consideration for payment of said sum, undersigned hereby agree to protect the said Cad C. Nations and M.F.A. Mutual Ins.’ Co. against any claim for damages, • compensation or otherwise on the part of said minor or any other party, growing out of or resulting from injury to said minor in connection with the above-mentioned accident, and to reimburse or make good any loss or damage or costs that the said parties may have to pay if any litigation arises from said injuries; and undersigned hereby waive any and all rights of exemption, both as to real and personal property, to which undersigned may be entitled under the laws of this or any other state as against such claims for reimbursement or indemnity by the said parties.”

We do not understand that plaintiffs seek a construction of the instrument as constituting a valid release of the minor’s claim. If so, or if it were contended that the minor has no right to maintain her pending suit by her father as next friend, such could be pleaded and advanced in that action. Nor does the petition allege that defendants claim damages resulting to them as parents for loss of services of Helen Ann, or that plaintiffs fear that such contention will be made. If we interpret the petition correctly, ’it seeks a judicial determination that Arthur and Myra Ramsey are liable to indemnify the plaintiffs for any financial loss that plaintiffs may sustain in the pending action by the minor.

The petition states that defendants deny they are obligated on the contract and “there is an actual controversy between the parties concerning the construction and legal operation of the aforesaid contract and in-demifying agreement.” But what is the controversy? What language, words, or portion of the agreement is in doubt or dispute? We are not able to ascertain any doubtful language from reading it. It does not appear on its face to be ambiguous in any respect. The petition does not point out or set forth anything which appears to require construction, and the appellants in their brief and argument do not point out any. The contention of the petition is as to the construction and legal operation of the contract. We do not understand it to assert that there is any factual disagreement •in regard to the execution of the instrument •or in respect to any claim of fraud, misrepresentation, et cetera. Nor do appellants in their written brief or argument suggest that the language of the petition should be taken as encompassing a possible factual situation. The fact that the infant with her father as next friend has filed suit is not, in and of itself, a repudiation of the obligation of the defendants to indemnify, although we can speculate that there might ultimately be such repudiation.

We recognize that when a petition is to be interpreted against demurrer attack it should be liberally construed, and its language should be given every fair and reasonable intendment. City of Creve Coeur v. Creve Coeur Fire Pro. Dist., Mo., 355 S.W.2d 857(4); Kalberloh v. Stewart, Mo.App., 378 S.W.2d 820, 822. We also recognize that the test as to the sufficiency of the petition for declaratory judgment is not whether the plaintiff is entitled to the relief prayed for, but whether he is entitled to a declaration of rights or status on the facts pleaded. 26 C.J.S. Declaratory Judgments § 142, p. 337, § 136, p. 310 et seq.; Transport Mfg. & Equip. Co. v. Toberman, Mo., 301 S.W.2d 801(1); Magenheim v. Board of Education, Mo.App., 347 S.W.2d 409, 416. But we also understand that the declaratory judgment act, while it is to be interpreted liberally, is not a general panacea for all real and imaginary legal ills, nor is it a substitute for all existing remedies. It should be used with caution. And except in' exceptional circumstances plainly appearing, it is not to be used and applied where an adequate remedy already exists. The petition must present a sufficiently complete state of facts constituting issues ripe for determination, 'and presenting a controversy which admits of specific relief of conclusive character as distinguished from one which is purely advisory. Mere disagreement in regard to a legal or factual question is not, in and of itself, adequate ground for the use of the.declaratory judgment process. If the petition does not show uncertainty as to the pleader’s rights and status, it is not sufficient. Koenig v. Koenig, Mo.App., 191 S.W.2d 269, 272; see St. Louis, Mo., Paper Carriers Union No. 450 v. Pulitzer Pub. Co. (8th Circuit) 309 F.2d 716; Odom v. Langston, 355 Mo. 115, 195 S.W.2d 466. As a general proposition one may not seek a declaration to determine future rights or controversies in anticipation of events that have not occurred (Glasgow v. Fox, Tenn., 383 S.W.2d 9 [4] ; see Farmers Underwriters Association v. Fales (W.D.Mo.) 142 F.Supp. 862, 865), or merely because he fears the defendant may assert a claim against him (1 C.J.S. Actions § 18 d(9), p. 1031; see Maryland Casualty Co. v. Tindall (8th Circuit) 117 F.2d 905), or because he has a good defense to a pending or imminent action. State ex rel. United States Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25, 30. There must be a “sufficient immediacy” so that the court should on the basis of the controversy stated, proceed to determine it. Indemnity Ins. Co. of North America v. Kellas (1st Circuit) 173 F.2d 120.

A simple hypothetical situation illustrating our problem is: A executes his promissory note in standard form to B, payable in one year. Before the year ex-pries A denies he owes the note, though it is not yet due. Upon that hare statement B wants to establish A’s liability immediately by declaratory judgment. Is B entitled to maintain a declaratory judgment action by petition simply stating that A denies the note and there is a real controversy as to the construction and legal effect of the instrument? We think not. In such case the petition does not set forth the substance of any real controversy with uncertain rights which appeals to the real purpose of the declaratory judgment act, the basis of the controversy being speculative and not accrued; and also the holder has an adequate remedy by bringing suit on the instrument when it becomes mature on its face. If the matters pleaded, so generally and by mere conclusion, support the claim for relief prayed for, then the declaratory judgment proceeding could be used to supersede and replace all existing and recognized remedies. One of the purposes of the declaratory judgment act is to reduce, not add to, multiplicity of suits. Let us suppose that by this action plaintiffs secure a declaration that Arthur and Myra Ramsey are liable to reimburse plaintiffs for any loss or expenses (at present largely contingent) suffered because of the suit by Helen Ann Ramsey. It could not determine and adjudge the amount of such liability. That would have to await the final outcome of the pending suit of the minor. After that plaintiffs would have to institute further proceedings to recover the amount suffered. Thus, and in consequence, it would appear that the declaratory judgment act has been used to promote rather than reduce multiplicity in litigation.

Of the cases cited by the appellants, all but one deal with the constitutionality of or the construction of statutes or ordinances, or determination of liability under insurance policies. One, Dillard v. Thomas, 241 Mo.App. 773, 270 S.W.2d 548, deals with construction of a promissory note, but in that case the note showed on its face language susceptible of doubt and uncertainty as to the amount required to be paid.

It has been said that the distinction between a case “appropriate for judicial determination” under the declaratory judgment statute and a hypothetical or abstract difference or dispute is one of degree (Indemnity Ins. Co. of North America v. Kellas (1st Circuit) 173 F.2d 120). There is no unanimity of opinion in the cases generally as to whether a petition couched in general language such as the one we have here, states a valid claim for declaratory judgment. Some would indicate it does. Others indicate this petition is not sufficient. We are of the opinion that the petition does not state a claim upon which the relief prayed for can be granted and' that the trial court was not in error in dismissing it. However, we are not sure that a situation may not develop ripe for determination by declaratory judgment action. In order to avoid future contention as tO' whether the present judgment would be res. adjudicata of any rights which plaintiffs may have, we believe the judgment should' be modified so as to constitute a dismissal' without prejudice. Kalberloh v. Stewart, Mo.App., 378 S.W.2d 820.

The judgment is so modified and as modified is affirmed.

STONE and HOGAN, JJ., concur,

      . 26 C.J.S. Declaratory Judgments § 19, p. 87; Liberty Mut. Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 953, 125 A.L.R. 1149; Koenig v. Koenig, Mo.App., 191 S.W.2d 269, 272; City of St. Louis v. Crowe, Mo., 376 S.W.2d 185, 189; Buford v. Lucy, Mo., 328 S.W.2d 14, 18.

      . 1 C.J.S. Actions § 18d(8), p. 1027, 26 C.J.S. Declaratory Judgments § 18, p. 85; Gluecls Realty Co. v. City of St. Louis, Mo., 318 S.W.2d 206, 211; Kalberloh v. Stewart, Mo.App., 378 S.W.2d 820, 823; State ex rel. Kansas City Bridge Co. v. Terte, 345 Mo. 95, 131 S.W.2d 587(2), 124 A.L.R. 1331.

      . M. F. A. Mut. Ins. Co. v. Hill, Mo., 320 S.W.2d 559(7, 8); Jacobs v. Leggett, Mo., 295 S.W.2d 825(14, 15); Fidelity & Cas. Co. of N. Y. v. Western Cas. and Sur. Co., Mo.App., 337 S.W.2d 566, 569; Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70; City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411, 413.

      . Zayatz v. Southern R. Co., 248 Ala. 137, 26 So.2d 545, 167 A.L.R. 426, and annotation at 433.

      . City of Summerville v. Sellers, 82 Ga.App. 361, 61 S.E.2d 160; Davis v. Boltz, 84 Cal.App.2d 295, 190 P.2d 218; In re Hoelscher’s Estate, 249 Iowa 444, 87 N.W.2d 446; Ayers v. Gen. Hosp., Inc., 67 Idaho 430, 182 P.2d 958, 959.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. R. C. TERRY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Harold K. Huddleston, Elizabethtown, for appellant.
    Hatcher & Lewis, Elizabethtown, for ap-pellee.
   DAVIS, Commissioner.

The Department of Highways seeks reversal of a judgment awarding $11,287 to the appellees incident to condemnation of 9.7 acres from appellees’ farm. The sole question presented is whether the verdict and ensuing judgment are supported by competent, relevant evidence of sufficient probative value. The trial was prior to the opinion of this court in Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.

Before the taking the farm of appellees contained about 140 acres. Twenty acres of the tract were already separated from the main body of the farm by U. S. Highway 62, before the present condemnation. Approximately 120 acres, including the residence and barn, lay south of U. S. 62.

The right of way taken for the construction of the nonaccess West Kentucky Parkway is a strip of land consisting of 9.7 acres. The taking severs the 120-acre tract in two, leaving about 45 or 50 acres, with the improvements, north of the Parkway and about 61 to 64 acres south of the Parkway.

The appellant’s witnesses gave evidence that the entire award due appellees (separated as to land taken and resultant damages) should be $7,200 to $7,530. These witnesses testified concerning other sales considered comparable to the present land. For the appellees there were four valuation witnesses (appellees did not testify as to values). The aggregate award, according to witnesses for appellees, should be $17,302 to $26,080. Obviously, the jury’s verdict is within the range of the testimony offered. Appellant maintains that the appraisal witnesses for appellees gave evidence so lacking in probative value as to require reversal. Reliance is placed upon Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; and Commonwealth, Dept. of Highways v. Raybourne, Ky., 364 S.W.2d 814.

It is quite apparent that the valuation witnesses for appellee did possess such knowledge of land values in the vicinity as to warrant their giving evidence touching that point. It is true that they did not testify to comparable sales, although that fact, of itself, does not render their evidence incredible. Commonwealth, Dept. of Highways v. Prather, Ky., 369 S.W.2d 118; Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

It is noted that one of the witnesses for appellees testified that the remaining fifty-acre tract would have no market value after the taking. However, the witness had said that he “damaged” that tract by $100 per acre, whereas he “damaged” the sixty-odd-acre tract at $150 per acre. He had already testified that he placed a before value of $350 per acre on each of these tracts. Fairly construed, the answer of the witness, on cross-examination, that he placed no market value on the fifty-acre tract merely reflected the view of the witness that the tract had no market value for farming purposes.

It would unduly extend this opinion to similarly analyze the appellant’s critique of each witness offered by appellees. It suffices to say that our review of their testimony leaves us convinced that the witnesses were qualified to give the evidence which they expressed, and that it had sufficient probative' value to support the verdict.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Daniel L. O’BRIEN et al., Appellants, v. Leora W. MARVIN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.

      J. W. Jones, Louisville, for appellants.
    Fielden Woodward, John P. Sandidge, Woodward, Hobson & Fulton,' Louisville, for appellee.
   MONTGOMERY, Judge.

Daniel L. and Selma D. O’Brien sued to recover $12,500 in damages from Leora W. Marvin for alleged fraudulent representations and fraudulent suppression of facts concerning the condition of a residence purchased by them in 1960. At the conclusion of the introduction of all of the evidence, the court directed a verdict in favor of the seller. The O’Briens have appealed from the judgment entered thereon.

They urge that: (1) The court erred in directing the verdict; (2) the appellee should have made a full disclosure concerning certain damage caused by fire; and (3) certain evidence was erroneously rejected.

Appellee listed her residence with a real estate agent to sell. Appellants were first shown the property on March 31, 1960. They signed a contract to purchase on April 7, 1960. The complete purchase price was paid and a deed was delivered on June 10, 1960.

The testimony is conflicting as to how many times appellants had been told that there had been a fire in the house and the extent of the fire. Appellants admitted that before they signed the contract and before completion of the transaction they had visited the house several times and had knowledge of the fire. They testified to having observed damage which could have been caused by fire, including a blackened door. It is admitted that appellants had such knowledge of the fire as would have enabled them to discover further evidence of the fire and resultant damage had they investigated the matter more diligently.

In Sohan v. Gibson, 118 Ky. 403, 80 S.W. 1173, it was held that where prior to a sale of land the purchaser had made personal examinations thereof and had been afforded every opportunity to discover the truth or falsity of the seller’s representation, the purchaser could not be regarded -as having relied on the seller’s representations so as to be entitled to recover on the ground that the representations were false. Osborne v. Howard, 195 Ky. 533, 242 S.W. 852; Baxter v. Davis, 252 Ky. 525, 67 S.W.2d 678. See also 55 Am.Jur., Vendor and Seller, Section 65, page 536.

In the sale contract of the real estate it was provided that the parties were not relying on verbal statements and that the purchasers had examined the property, were thoroughly acquainted with its condition, and accepted it as such. In Bryant v. Troutman, Ky., 287 S.W.2d 918, the contract contained a similar provision, and it was held that the seller would not be liable for concealment of apparent defects of such nature that the purchaser could have discovered them by the exercise of ordinary diligence.

The appellants had information of the fire and had more than one opportunity to examine the house and discover the damage of which they complain. Their observations of water damage and information as to a blackened door were sufficient to apprise them of possible damage, which observations if diligently pursued would have disclosed full notice of the damage. Having chosen to rely on their own examination, they were properly denied the right to rely on any alleged fraudulent representations or suppression of facts.

The burden is on the party asserting fraud to establish it by clear and convincing proof. Rice v. Hord, 252 Ky. 469, 67 S.W.2d 715; Terrill v. Carpenter, D.C., 143 F.Supp. 747, affirmed 6 Cir., 249 F.2d 142. The motion for a directed verdict in favor of appellee was correctly sustained. The several cases relied on by appellants are distinguishable on different grounds, principally because they deal with cases of concealment without examination or opportunity to examine.

Appellants urge that the trial court erroneously rejected the deposition of John J. Kaelin. Kaelin’s testimony concerned the fire loss claim filed by appellee. Kaelin was superintendent of the fire insurance company that had the insurance coverage. He had an office in Louisville.

It is urged that Kaelin’s deposition was admissible under authority of Gus Dattilo Fruit Co. v. Louisville & N. R. Co., 238 Ky. 322, 37 S.W.2d 856. Appellee says that there was no showing that Kaelin came within any of the exceptions of CR 26.04(3) and that his personal attendance could have been commanded under CR 45. Further, appellee urges that the deposition was inadmissible on the ground that the report referred to in Kaelin’s deposition was not made by him or his company but was made by the employees of an adjustment and inspection company and that neither Kaelin nor anyone in his company had any personal knowledge of the truth of the report’s contents. The materiality of the report was also questioned, in that the deposition dealt with the extent of a fire loss in 1956 while the issue on trial was the condition of the house at the time of the sale in 1960. The deposition was properly rejected.

Judgment affirmed.


author: WADDILL, Commissioner.

text:
    Robert SHERLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.

      John W. Coomes, New Castle, for appellant.
    Robert Matthews, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant, Robert Sherley, was convicted of voluntary manslaughter and sentenced to imprisonment for five years. KRS 435.020. The sole question raised on the appeal from that conviction is whether the trial court complied with the requirements of RCr 9.66 which in pertinent part are as follows:

“ * * * When a jury composed of both sexes must he kept together, the male members of the jury may be separated from the female members and each sex kept together in charge of an officer of like sex.”

Since the jury impaneled to try appellant included both men and women it is appellant’s contention that the court erred in failing to place the female jurors in the charge of an officer of like sex. The record reflects that the jury was allowed one hour for lunch during which time it was in the charge of Deputy Sheriff George Rans-dell. The trial was completed in one day and so far as appears herein the jurors were never separated one from another. We held in Horton v. Commonwealth, Ky., 240 S.W.2d 612, 614, that under our system of trial by jury, much reliance must be placed upon the integrity of the jurors and “[i]t is not within the contemplation of the Criminal Code of Practice, § 244 [Now incorporated in RCr 9.66], that the jury must be put in a vacuum during the trial.” Also see Roark v. Commonwealth, Ky., 321 S.W. 2d 783.

The quoted provision of RCr 9.66 is primarily intended to apply where it is necessary to protect the jury from improper influence during overnight recesses or where circumstances require this protection. In the instant case the record does not reflect the need for a female bailiff or even a timely objection when such a bailiff was not supplied.

The judgment is affirmed.


author: ' WILLIAMS, Judge.

text:
    Bobby Joe CONN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.

      Joe P. Tackett, Prestonsburg, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Harold Stumbo, Commonwealth Atty., Prestonsburg, for appellee.
   ' WILLIAMS, Judge.

Appellant Bobby Joe Conn was found guilty of transporting alcoholic beverages for the purpose of sale in dry territory and his punishment was fixed at a fine of $100.00 and confinement in the county jail for 30 days. He appeals.

Appellant was stopped by a state policeman on a routine check for operator’s license. He had his operator’s license in his possession but did not have the registration ■receipt for the truck he was driving. Consequently, the ófficer issued a citation which directed appellant to appear before the county judge later in the day.

The state policeman requested and was refused permission to search the truck. Appellant was then taken before the county judge pro tern who issued a search warrant, by which authority the officer searched appellant’s truck and found 63 cases of beer. The regular county judge testified at the trial that he was in the county at the time the county judge pro tern issued the search warrant.

Appellant maintains that a search warrant issued by a county judge pro tem at a time when the county judge is in the county is invalid, and any evidence obtained by reason of the search thereunder is incompetent and should not be allowed to go to the jury. The Commonwealth admits that is the law, which indeed it is. Slone v. Commonwealth, Ky., 377 S.W.2d 51; Cox v. Allen, 188 Ky. 598, 222 S.W. 932.

Moreover, no probable cause for issuing a search warrant or for making an arrest on the charge of transporting alcoholic beverages for sale in dry territory existed prior to the time the search warrant was issued. So, even had the county judge been absent from the county, the search would have been improper for this additional reason.

The trooper did not arrest appellant when he stopped him. He issued a citation. A peace officer is authorized by KRS 431.015 to issue a citation instead of making an arrest for a misdemeanor committed in his presence if there are reasonable grounds to believe that the person being cited will appear to answer the charge. A citation is not an arrest; consequently, a search is not permitted upon the issuance of a citation, even though in some instances it is permitted upon an arrest. See Cecil Lane v. Commonwealth; Ky., 386 S.W.2d 743, decided November 25, 1964.

The judgment is reversed.


text:
    FIDELITY & GUARANTY INSURANCE UNDERWRITERS, INC., Appellant, v. Voris GREGORY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.
    David R. Reed, Paducah, for appellant.
    Raymond B. Dycus, Smithland, B. M. Westberry, Marion, for appellee.
   DAVIS, Commissioner.

Appellee recovered $7,000, the face amount of a fire insurance policy issued to him by appellant, based upon the total deT struction by fire of the appellee’s residence. Appellant’s defense, and its contentions of reversible error,' are based on the admitted failure of appellee to file written proof of loss as provided by the insurance policy. For the appellee it is maintained that’the policy provision requiring proof of loss was effectively waived. Appellant also presents claimed error in the instruction to the jury and in the admission of certain evidence.

Fire destroyed appellee’s dwelling on August 2, 1962, while a fire insurance policy issued by appellant was in force. The loss was total; the face value of the policy was $7,000. The policy is a “valued policy” within the purview of KRS 304.905.

Appellee was out of Kentucky when the fire occurred. When he returned the next day he learned of the fire and reported it to the insurance agent from whom he had obtained the policy. That agent, Pruett, transmitted the information to appellant forthwith.

Under date August 6, 1962, appellant’s, general agent referred the fire loss to General Adjustment Bureau at the latter’s Mad-isonville office. A copy of the transmittal letter from the general agent to General' Adjustment was furnished Pruett, and is in-evidence. The letter to the .adjustment agency,, on a prepared printed form, contained this language: “We. have.received, notice of loss in connection with the above [the instant claim] and are. taking the fol-. lowing action: Referring loss to you for adjustment. Forward completed loss papers to this office.”

Shortly after receiving the adjustment instructions General Adjustment Bureau sent its employee, Wedding, to investigate the matter. Wedding met with the appellee at the fire scene, and made certain measurements. Wedding asked appellee to furnish a photograph of the residence as it had appeared before the fire; appellee did mail to Wedding such a photograph. Indeed, it is conceded that appellee fully “cooperated” with Wedding.

Wedding testified that he concluded that “as the fire was of undetermined origin and the house was vacant — and appeared to be over insured I made a report to Mr. Bracey.” (Bracey is employed by the National Board of Fire Underwriters.) Wedding said that Bracey investigated the fire, as did an investigator for the State Fire Marshal.

Wedding further said that when the investigation came within the investigative jurisdiction of the Fire Marshall “there was nothing I could do until they were through.” Accordingly, Wedding said that about two weeks after the fire he informed appellee that the matter was in the hands of the Fire Marshal, and that Wedding could do nothing until the Marshal’s investigation had been concluded. Wedding testified that “the proof of loss was never mentioned” as between him and the appellee.

Appellee made one further communication with his own insurance broker, Pruett, at which time he indicated to Pruett that the claim had not been settled. On October 15, 1962, appellee consulted and retained Raymond Dycus as his attorney to enforce payment on the policy. The attorney testified that on that date he had a telephone ■conversation with adjuster Wedding, and that Wedding said that the insurance company had waived proof of loss. In his testimony Wedding specifically denied making such statement, and further asserted that he had no such authority.

When no response was forthcoming from the insurance company, the present suit was filed on October 25, 1962. The insurance company made an affirmative plea in avoidance that appellee had failed to furnish the written proof of loss. The pertinent terms of the insurance policy are:

“ * * * and within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn ■ to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, any changes in the title, use, occupation, location, possession or exposures of said property since the issuing of this policy, by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of loss and whether or not it then stood on leased ground * * *
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”

By a reply, the appellee-plaintiff reaffirmed his contention that the company had waived the filing of proof of loss and, in the alternative, pleaded: “ * * * in the event it should be determined that this plaintiff has not furnished proof of loss as required * * * and that the company has not waived this * * * then * * * plaintiff’s complaint should be dismissed without prejudice and plaintiff permitted to tender such proof.” The company’s motion to strike the reply was overruled. So far as is disclosed by the record, no specific ruling of the trial court was sought or made with respect to the alternative pleading.

Our cases recognize the validity of provisions of insurance policies requiring proof of loss. In some instances the cases have dealt with such clauses which incorporate a provision for forfeiture of the insurance claim; in others, as in the present case, the provision does not impose forfeiture hut makes the proper filing a condition precedent to maintenance of a suit upon the policy. Continental Insurance Co. v. Marr, 292 Ky. 283, 166 S.W.2d 422 (involving forfeiture) ; Fidelity Phenix Insurance Co. of New York v. Vincent, 224 Ky. 769, 7 S.W.2d 203 (proof required as condition precedent to suit, hut no forfeiture).

It is well established also that the filing of proof of loss may he waived. Aetna Ins. Co. v. Weekley, 232 Ky. 548, 24 S.W.2d 292; Western Auto Cas. Co. v. Lee, 246 Ky. 364, 55 S.W.2d 1; Dunning v. Continental Ins. Co., 254 Ky. 368, 71 S.W.2d 995.

We have held that an adjuster may waive such proof of loss. Royal Exchange Assurance of London, England, Inc. v. Collins, 231 Ky. 31, 20 S.W.2d 1023.

We believe the insurance company is estopped here to rely on failure to file proof of loss. As noted, the company specifically directed General Adjustment to “Forward completed loss papers to this office.” Adjuster Wedding did ask appellee to furnish a photograph of the residence, and this was done. Wedding told appellee, during the sixty-day period, that since the matter had been taken under consideration by the Fire Marshal, there was nothing more he could do pending that investigation. The inference is clear, we think, from Wedding’s conversation with appellee, that after the Fire Marshal’s investigation had been finished, Wedding would resume action looking toward adjustment of the claim. Wedding did not ask for proof of loss, although the company asked him to forward it.

The insurance company can become bound by the activities of its agent, even though it may be said that the agent lacked actual authority to waive the filing of the proof of loss. We consider sound the statement made in 45 C.J.S. Insurance § 982(6), p. 1201: “As a general rule, one who is intrusted by the company with' apparent power to adjust the loss ordinarily has authority to waive notice or proofs of loss.” We hold that Wedding’s actions, in the sixty-day period, were sufficient as a matter of law to estop the appellant company from insisting on a proof of loss. Cf. Dunning v. Continental Ins. Co., 254 Ky. 368, 71 S.W.2d 995.

It is our view that' Wedding’s conduct, without respect to what hq may or may not have said to attorney Dycus, was of that nature as “would naturally induce delay or lead an ordinarily prudent person to believe that the requirement of the policy respecting proof was waived by the company.” Dunning v. Continental Ins. Co., supra, 71 S.W.2d at 998.

This conclusion makes it unnecessary to consider the claimed errors with respect to the instruction given and the evidence admitted (since the questioned evidence does not bear upon the conduct'of Wedding and appellee).

The judgment is affirmed.