author: BIRD, Judge.

text:
    SWIFT & COMPANY, Inc., Appellant, v. Lelia CAMPBELL et al., Appellees.
    Court of Appeals of Kentucky.
    May 25, 1962.
    Rehearing Denied Oct. 12, 1962.

      Woodson T. Wood, Fox, Wood & Wood, Maysville, Grover C. Thompson, Lexington, for appellant.
    D. Bernard Coughlin, Maysville, for ap-pellees.
   BIRD, Judge.

Swift & Company leased an ice cream cabinet to Lelia Campbell, a restaurant operator, whose business was located in a building belonging to the Maysville Aerie of the Fraternal Order of Eagles.

Lelia was in arrears with the rent and the Eagles proceeded by distress to distrain and sell her personal property housed within their building. The ice cream cabinet was also sold in that proceeding to Alfred Caproni.

This is a claim and delivery action in the Mason Circuit Court against Caproni to recover the cabinet.

The trial court dismissed the action as being a collateral attack on the judgment of the Mason Quarterly Court in which the distress and distraint proceeding originated. Swift & Company has appealed to this Court.

In Chiquelin v. Linker, Ky., 323 S.W.2d 583, this Court said:

“The distress remedy is provided by KRS 383.010(1) and provides as follows :
“ ‘Rent may be recovered by distress, attachment or action, and shall bear six percent interest per annum from the time it is due.’
It is a special statutory proceeding com-, píete within itself having each procedural detail prescribed. The Kentucky Rules of Civil Procedure concerning notice and parties do not apply. CR 1.. It is a remedy separate and apart from actions and is not within the purview of KRS 426.006 or any rule of law requiring that other lienees be made parties. It is strictly a proceeding in rem and one of three remedies provided for the collection of rent and the enforcement of a landlord’s lien for rent.”

It was not necessary to make Swift & Company or any lienholder a party to that action. It was necessary to do only that which is required for the exercise of the distress remedy. We find it unnecessary to determine whether the remedy was properly pursued and perfected. Assuming that there was no error in the distress proceeding and that Caproni was a purchaser in good faith, Swift & Company is still entitled to its day in court as regarding its claim to the property.

In the Chiquelin case we said concerning the lien interest in distrained property as follows:

“As to liens created before the property is placed upon the premises, KRS 383.080(3) provides that they ‘shall prevail against a distress warrant.’ Let us emphasize that the statute says the lien shall prevail against the distress warrant and does not say that it shall prevail against, or be superior to, the landlord’s lien for rent. A distress warrant is not a lien nor does it create a lien. It is simply a means of enforcing a lien already in existence. The statute says that liens created before the property is placed upon the premises shall prevail against the remedy itself. As this Court construes KRS 383.080(3), the legislature has said that such a lien will not be overcome by the distress action and will continue to exist and be in force though the property is sold at the distress sale and is in the hands of the purchaser. In other words the purchaser does not take the property free of lien in such cases.”

Actual ownership is a greater interest in property than the interest created by lien. If a lienholder can pursue his claim while the property is in the hands of the purchaser there can be no argument as to the right of the true owner to do so.

The owner’s interest in this property existed before it was put on the premises and we therefore apply the Chiquelin ruling.

The trial court erred in dismissing the action. The judgment is reversed.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    Luther THOMAS, Warden, Kentucky State Penitentiary, Appellant, v. Joseph Leon SCHUMAKER, Appellee.
    Court of Appeals of Kentucky.
    June 15, 1962.
    Rehearing Denied Oct. 12, 1962.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellant.
    Joseph Leon Schumaker, Eddyville, for appellee.
   MILLIKEN, Judge.

In a habeas corpus action filed by the ap-pellee, Joseph Leon Schumaker, the trial court directed the warden of the State Penitentiary at Eddyville to release Schumaker from custody unless this Court rules otherwise on appeal.

The appellee, Schumaker, was convicted in the Jefferson Circuit Court of the offense of armed robbery, sentenced to life in prison, and was committed to the Kentucky State Reformatory on October 26, 1950. He became eligible for parole consideration on October 26, 1958, but received a one year deferment. On August 26, 1959, when he appeared before the Parole Board, he was paroled to the retainer lodged against him by the Federal authorities. The appel-lee reported to a Kentucky Probation and Parole Officer on September 6, 1960, when he returned to Louisville after serving his Federal sentence. He remained on parole until January 19, 1961, when he was returned to the Kentucky State Reformatory as a parole violator because he was arrested for vagrancy and disorderly conduct, had left the district without permission and failed to make his regular report.

The only issue presented here is whether the paroling of a convict to the authorities of another jurisdiction for trial upon a criminal charge constitutes a permanent waiver of the right to recommit such convict for violations of the terms of his parole.

Upon authority of Davis v. Harris (1962), Ky., 355 S.W.2d 147 and Jones v. Rayborn (1961), Ky., 346 S.W.2d 743, the judgment must be affirmed. As was pointed out in Davis v. Harris, above, our governing statute, KRS 440.330, entrusts to the Governor alone the surrender of persons under state custody to the authorities of other jurisdictions, and “implies no policy toward entrusting such a grave discretion to local law enforcement authorities.” Since the enactment of this statute the Parole Board may, with approval of the Governor, surrender any person in custody (actual or constructive as when on parole) to authorities of another jurisdiction without completely relinquishing the jurisdiction of this state.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Waldo FULTZ, Bertha Fultz, and First National Bank of Grayson, et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Rehearing Denied Oct. 12, 1962.

      John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Linza B. Inab-nit, Legal Section, Dept, of Highways, Frankfort, for appellant.
    O. F. Duval, W. H. Counts, Olive Hill, for Waldo Fultz, Bertha Fultz, and First Nat. Bank of Grayson.
    W. H. Counts, Olive Hill, R. C. Littleton, Grayson, for Sherman Shumate and Lena Shumate.
    Thomas D. Theobald, Grayson, W. H. Counts, Olive Hill, R. C. Littleton, D. V. Kibbey, Grayson, for Joyce Martin, Bennie Martin, Sherman Shumate and Lena Shu-mate.
    H. R. Wilhoit, Grayson, for S. C. Tabor.
    H. R. Wilhoit, Grayson, for Earl Mc-Glone and Lena McGlone.
    O. F. Duval, Olive Hill, H. R. Wilhoit, Grayson, for W. C. Preston (substituted as appellee-defendant in place of Standard Oil Co.), and L. C. Barker.
    Wm. C. Kibbey, Grayson, for Wheeler Parsons, Opal Parsons, Mrs. Effie Johnson, D. V. Gearhart and Maggie Gearhart.
   PALMORE, Judge.

Thirteen appeals by the state highway department from orders and judgments of the Carter Circuit Court in or arising out of condemnation cases have been consolidated for joint consideration. This opinion disposes of them all.

We are confronted with a procedural nightmare. In 1957 the state filed proceedings under KRS 177.081 et seq. to condemn 38 pieces of real estate on Main Street in the city of Olive Hill, so as to carry out a program of reconstructing U. S. Highway 60 through the heart of that city. The awards made by the commissioners (KRS 177.083) were considered excessive, so the state appealed each of the county court judgments to the circuit court on the question of amount. The landowners appealed also on the same question. In the circuit court one of the cases, that of the appellees McGlone and wife, was tried before the jury as a test case and resulted in a verdict of $5000 as contrasted with an $1800 award in the county court and the state’s original' appraisal of $1200. Thereafter, on March 6, 1958, Commissioner of Highways James W. Martin issued an official order describing the project and concluding as follows:

“Due to the excessive cost of 38 parcels of right of way that had to be condemned, as evidenced by County Court awards on said 38 parcels of right of way, it is thought to be in the best public interest to abandon the proposed subject project as originally planned.
“Therefore, the subject project is hereby abandoned, without prejudice, and all authorization to acquire right of way that has not been agreed upon and paid for before the date of this Order is hereby withdrawn.
“This Order is not intended to and does not abandon the right of way already acquired and paid for; and in order to utilize as much of the acquired right of way as possible, the Director of Design is hereby directed to make an alternate survey between the junction of U.S. 60 and Ky. 174 and a point near Fields Bridge over Tygarts Creek in such a manner as to miss the main business section of Olive Hill.”

On the next day the state moved the circuit court to dismiss without prejudice each of the actions pending before it, and this-was done by orders reading in part as follows :

“On motion of said Commonwealth of Kentucky, Department of Highways,, notice of said motion having been given as required by law, this action is hereby dismissed without prejudice at the cost of the Commonwealth of Kentucky, Department of Highways.
“On motion of the Court any appeal taken by property owners having become moot the same is hereby dismissed.”

(The form of the order in the McGlone case was different from the others in that it specifically set aside the county court judgment and dismissed “this entire action.”)

During the spring and summer of 1958 the mayor and other citizens of Olive Hill interceded with various property owners who had been involved in the condemnation proceedings and made several visits to Frankfort in an effort to have the project reinstated according to the original plan. Meanwhile, on July 1, 1958, Dr. Martin was succeeded as Commissioner of Highways by Hon. Ward J. Oates, who went to Olive Hill and met personally with some of the interested citizens. In August of 1958 the right-of-way director for the highway department contacted and made tentative settlements with a number of the landowners based upon re-appraisals at higher prices. These efforts culminated in a new order issued by Commissioner Oates on August 29, 1958, providing in part as follows:

“It has now become apparent after many conferences and further negotiations with City Officials and property owners that the necessary right of way can be acquired for a reasonable sum of money and it is considered feasible at this time to reinstate Official Order No. 51076 in its entirety.
“It is, therefore, authorized and directed that Official Order No. 51076 be, and hereby is, reinstated in its entirety and becomes of full force and effect as of the date of this order.
“Official Order No. 54294, the order of abandonment, is hereby cancelled, set aside and held for naught.”

In September of 1958 the state filed new condemnation suits in the Carter County Court against the owners with whom it still could not settle. The commissioners appointed in these proceedings made awards considerably lower than those made in the original 1957 actions (which we shall call the old suits). For example, on six of the seven pieces of property involved in the appeals before us now the new awards totaled $45,322 as against $115,726 under the old. When the owners were summoned to answer they pleaded the old judgments in bar of the new suits, alleging among other things that the state had not acted in good faith in abandoning the old suits. In two of the cases (Tabor and Standard Oil) it was alleged that the state’s appeals to the circuit court in the old suits had been dismissed on technical grounds, hence the county court judgments remained in full force and effect. The McGlones took the position that if the state was entitled to take their property at all it was bound by the $5,000 jury verdict hereinbefore mentioned. The other owners made the same contention with respect to the commissioners’ awards made in the old suits.

At this stage the regular judge of the county court vacated the bench and the adversary parties agreed on the appointment of Hon. Frank C. Malin, a distinguished member of the Ashland bar, as special judge to determine the issues raised by the pleadings of the property owners. After hearing evidence submitted by both sides covering the circumstances attending the abandonment and reinstatement, on September 19, 1959, he entered judgments dismissing the new suits on the ground that there “was never a permanent, unconditional abandonment in good faith of the project. * * * and the plaintiff is bound by the judgments rendered in said previous actions.” The state promptly appealed these judgments to the circuit court.

Now the case took an incredible procedural turn. The state filed in the circuit court motions in the old suits, which had been dismissed without prejudice a year and a half before and were no longer on the docket, requesting permission to deposit either the amounts of the county court judgments (in the McGlone case, the amount of the jury verdict) in these old suits or the amounts of the commissioners’ awards in the new suits, “without prejudice to any rights of appeal in either action,” and thereupon to take possession of the respective properties. The property owners responded to this exotic maneuver by special appearances seeking to quash it. As best we can interpret the record, however, the circuit court apparently took the practical approach of treating these motions as if they had been made in the new suits. Accordingly, on September 29, 1959, he entered in each of the new suits an order (a) taking under submission the question pending on the appeal, (b) directing that the amount awarded in the old suit be substituted for that awarded in the action then pending before him on appeal, (c) authorizing the state to take possession upon payment or deposit of that amount, and (d) providing that such payment and taking of possession would not prejudice “the rights of either party in either action as to the rights of appeal or any other matters open for determination” or “be considered as a recognition of the validity of the judgment of the county court in the former action.”

Following entry of the foregoing orders the state paid into court the amounts awarded in the old suits (in the McGlone case, the amount of the jury verdict) and took possession of the property. The sums thus deposited were paid by the clerk of the circuit court to the respective property owners.

On December 11, 1959, the circuit court entered findings of fact, conclusions of law and judgment in the new suits. This judgment recited that by agreement the cases had been submitted on the record made be-for Judge Malin in the county court. It found “that there was no abandonment in good faith” of the old suits by the state and that the new suits were but a transparent attempt to obtain new trials and lower awards; concluded that the state was “bound” by the judgments and awards made in the old suits and that the owners were entitled to the amounts thereof; and, in effect, dismissed the actions. Six of the state’s appeals now before us are from this judgment.

On February 15, 1960, the state moved the circuit court under CR 60.02 to set aside the orders entered in March of 1958 dismissing the old suits, and to redocket them for trial. These motions were overruled by an order reciting that the events subsequent to the 1958 dismissals, including the shipwreck of the new suits, provided no basis for relief in the old suits. Six of the state’s present appeals are from this order, and they involve the same appellees as the six appeals from the final judgment of the circuit court in the new suits.

The thirteenth case, which we shall call the Parsons-Johnson case, is different from the others. It concerns the lessee and sub-lessee of business premises that were the subject of one of the original 1957 condemnation suits dismissed without prejudice in March of 1958. At some time thereafter the landlord evidently settled with the state, and the property is not involved in the new suits. However, when the state undertook to assume possession the lessee and sub-lessee filed suit in the circuit court to enjoin it from ousting them without paying the amounts awarded to them by the county court in 1957. The 1957 county court judgment shows that a total of $37,350 was awarded for the property, and according to a copy of the report of commissioners attached to the complaint it was apportioned $26,350 to the landlord and $5500 each to the lessee and sub-lessee for “damage to estimated business.”

In defense to these claims the state pleaded, inter alia, the abandonment and dismissal of the 1957 action and alleged also that the lessee was but a month-to-month tenant, hence neither he nor his sub-tenant had a compensable interest in the property. Before ruling on the merits the circuit court permitted the state to take possession and required it to pay the $11,000 to the plaintiffs without prejudice to the rights of any of the parties. On December 18, 1959, final judgment was entered on the pleadings, and it reflected the same findings and conclusions theretofore stated in the December 11, 1959, judgment in the new suits involving the other properties heretofore mentioned. The state therefore was held “bound” by the 1957 county court judgment and the lessee and sub-lessee entitled to the $5500 theretofore paid to each of them. The thirteenth appeal before us is from this judgment.

In the absence of statutory regulation to the contrary, eminent domain proceedings may be abandoned by the con-demnor at any time, even after judgment, so long as possession has not been taken or the award paid. Manion v. Louisville, St. L. & T. Ry. Co., 1890, 90 Ky. 491, 14 S.W. 532. Having once abandoned the action, however, the condemnor’s right to proceed anew against the same property for the same purpose depends on whether the abandonment was in good faith. It cannot resort to “experimental suits and assessments” and in effect grant itself a new trial in order to have a reassessment without taking an appeal. 30 C.J.S. Eminent Domain § 340, p. 18; 18 Am.Jur. (1961 Supp.) 166, § 370.2. See also annotation, “Right to abandon and effect of abandonment of eminent domain proceedings,” 121 A.L.R. 12.

We think there can hardly be any doubt that the old suits were completely abandoned and rendered ineffective by the orders entered in the circuit court at the instance of the state in March of 1958. The parties have wrangled over the question of whether these orders killed the entire proceedings or simply left the county court judgments in full force and effect. Cf. CR 72.04. Obviously, for example, a party appealing to the circuit court from a quarterly court judgment in an ordinary damage suit could not be permitted, on the ground that the case stands for trial de novo, to get rid of the adverse judgment by the simple device of dismissing in the circuit court. But whatever may be the proper effect of an appellant’s dismissal in other types of actions, an eminent domain case is necessarily in a distinct category of its own by virtue of the condemnor’s right to abandon. Since that right may be exercised at any stage of the litigation, it is our opinion that an order in the circuit court reciting the fact of abandonment definitely extinguishes the entire proceeding. Therefore, the ruling of the circuit court in the new suits requiring or permitting the state to pay the amounts awarded in the old suits was in error, because the old suits were dead and no one was “bound” by them. And this is true regardless of whether the state acted in good faith in abandoning the old suits. The element of good faith is relevant only to the question of whether the state had a right to maintain the new proceedings. It has no bearing on the efficacy of the abandonment.

It is our further opinion that an abandonment may be effected without a formal order in the proceedings. “Like any other fact, abandonment may be shown by circumstances or by the actions, conduct, or declarations of the parties.” Rice v. Rice, 1932, 243 Ky. 837, 50 S.W.2d 26, 30. This princple applies to the abandonment of condemnation proceedings. 30 C.J.S. Eminent Domain, § 336, p. 12. The official order promulgated by the Commissioner of Highways on March 6, 1958, was an express and conclusive abandonment, and if the shoe were on the other foot we should have no hesitation in holding that the state could not thereafter have taken any of the property under the old judgments. As it was not “bound” by those judgments, neither did it then have any rights under them. Thus the Tabor and Standard Oil cases, in which the record suggests that the state’s appeals to the circuit court in the old suits may have been dismissed on technical grounds, prior to the abandonment, stand on the same footing as the other cases, in which the old suits were dismissed by orders specifically reciting the fact of abandonment.

What we have said thus far spells the answer in the Parsons-Johnson case, the thirteenth appeal mentioned above, in which a lessee and sub-lessee were adjudged recovery of $5500 each on the basis of the commissioners’ award and county court judgment in one of the old suits. Since the abandonment nullified any rights and obligations that may theretofore have vested by virtue of the old suit, their complaint for an injunction should have been tried on the issues raised by the state’s answer. One of these was the question of whether the lessee was a month-to-month tenant. If so, the state, having succeeded to the title of the landlord, had the right to terminate the tenancy on a month’s notice. Pack v. Feuchtenberger, 1930, 232 Ky. 267, 22 S.W.2d 914. Under no circumstances, of course, does a lessee’s “loss of business” through condemnation of the leasehold constitute a proper item of recovery. The compensable loss of a tenant is the amount by which the fair value of the unexpired term of his lease exceeds the rent reserved for the same period. City of Ashland v. Kittle, Ky.1961, 347 S.W.2d 522, 524; City of Ashland v. Price, Ky.1958, 318 S.W.2d 861, 863. Therefore, if upon remand of the case the complaint is amended to seek recovery for the taking, damages should be limited to that amount. The state will be entitled to remittance of the $11,000 less the damages (if any) so recovered.

We come now to the dismissal of the new suits on the basis of the factual finding that the state had not acted in good faith in abandoning the old suits. We are bound by the finding of fact unless it was clearly erroneous. CR 52.01.

The essence of the bad faith contention is that the state never really intended to relocate the course of the road, and that its ulterior purpose in issuing the official order of abandonment was merely to postpone the project pending further negotiations with the property owners and a softening of their attitudes. The burden of proving this was on the condemnees, since it was they who had asserted it as an affirmative defense. We have concluded that their evidence did not substantially support the burden, and that the finding of bad faith was clearly erroneous.

“Good faith” is, of course, strictly a matter of intention as of the time the action in question was taken. In this case the man whose state of mind at the time of the abandonment is under scrutiny is Dr. James W. Martin, then Commissioner of Highways. On its face his official order of March 6, 1958, fairly construed, purported to be unconditional and permanent. In his testimony, given at a time when he had returned to his former career as an educator and an eminent member of the faculty at the University of Kentucky, he categorically stated that in signing the order he had intended an absolute abandonment and not a postponement.

We think that the official actions of a state officer at cabinet level, especially when coupled with his word under oath, must be given a strong presumption of good faith, rebuttable only by evidence of the most convincing weight and character. Naturally the rebutting evidence in such a case will be circumstantial, as it was in this case, but if the circumstances shown are equally consistent with either good faith or bad faith at the time of the official action, our opinion is that they are not enough to sustain a case of bad faith.

The salient circumstances leading up to and following the abandonment that are said to suggest, individually and collectively, that the state did not intend a permanent abandonment are as follows:

1. The project was promised to the people of Olive Hill by the Governor during his 1955 campaign for office. Hon. Bert Kiser, of Olive Hill, later served for a time as Deputy Highway Commissioner under Dr. Martin’s predecessor and presumably retained influence in the state administration at the time of the abandonment. Hence it is argued that the policy of the state rested in the Governor, leading to the inference that he caused the project to be turned off and on like a faucet, without any actual change of purpose. The fact is, however, that even as late as August of 1958, when Commissioner Oates discussed the situation with him, Governor Chandler very properly took the position that although he would like to build the road through Olive Hill he could not permit the state to be robbed in order to do it. We find in these circumstances nothing but the merest of speculation to indicate any concealed policy contrary to the expressed abandonment.

2. For some months prior to the order of abandonment, and on the virtual eve of its issuance, the highway department and its commissioner were in fact seriously considering a postponement rather than an abandonment. A press release of February 28, 1959, correctly quoted Dr. Martin thus: “Martin said ‘we are postponing indefinitely any work’ on the project. Meantime, he said, departmental officials hoped some way might be found to compose some of the differences to enable the state to acquire the needed right of way on a ‘reasonable’ basis * * *. ‘If the Olive Hill people at some future time, and before an alternative plan is definitely worked out, decide they want U.S. 60 modernized through the city to the extent that they are willing to provide remaining right of way on terms in line with those which their neighbors have accepted as fair, then the Department will consider reinstatement of the project * * *. [In] the hope that the people of Olive Hill at some future time may become more interested in highways than they are now, the state will retain the right of way property it has already acquired.’ ”

We quote Dr. Martin’s explanation as follows:

A— “We did consider dropping the project for the time being and going ahead with other construction and simply forgetting Olive Hill for the moment. However, after a series of conferences with the Division of Right of Way and the legal staff, the United States Bureau of Public Roads District Engineers and General Engineering staff of Public Highways, I determined tire project should be completely abandoned running through the downtown area of Olive Hill and a way found around the town so the road could be constructed in such a manner as to relieve the traffic bottleneck in Olive Hill but without incurring the right of way cost we felt assured of if we went through the downtown area.”
Q— “You meant it then, when you issued this order — you had made up your mind to finally abandon it — is that correct ?”
A— “That is correct.”

With specific reference to the newspaper article he said this:

“Well, at the time that was announced, as I indicated earlier, by intention at least we were still debating the policy that we would follow, and if I remember correctly, we used ‘abandon’ and we used ‘postpone’. At that time it didn’t seem to make much difference as we were still debating the question. It seemed to be all right until we reached a judgment as to whether we were talking about postponement or abandonment. Our decision was reflected in our final order.”

It is our opinion that the consideration and discussion of a postponement, while deliberations were still in the tentative stage short of formal decision, is no indication of bad faith in the ultimate determination to abandon.

3. Relocating the highway around Olive Hill would possibly have caused the loss of $249,000 already paid for what were stipulated as constituting highway “easements” (as distinguished from corporeal title) acquired along the route through the town. Again, however, we refer to the explanation given by Dr. Martin:

Q— “Just before the order was issued, did you advise with the legal counsel with respect as to whether or not the Commonwealth of Kentucky would stand to lose money on the property already negotiated for and already owned on part of the project to be abandoned ?”
A— “I was advised that any loss from that source, or for that reason, would in all probability be negligible.”
Q— “Did they tell you in what way ?”
A— “Yes, sir. I’m not lawyer enough to be sure I understood, but there was some sort of legal principle adverse to — enrichment which would enable the Commonwealth to recover according to the advice I was given at the time.”

and to the testimony of the right-of-way director :

Q— “You understood that the State would simply lose the amount of money they paid for those pieces of property if they adopted the alternate route ?”
A— “No. I never understood that; the lawyer said here that was not the case; that the money would not be lost.”

Certainly it was not a foregone conclusion to the department at the time (nor is it to us at the present time) that under these unusual circumstances the state would lose the -$249,000 it had, paid for the easements or, for that matter, that it would lose the easements. In any event, the risk was within the discretion of the commissioner, and its existence does not impugn the authenticity of his decision to court it.

4. It was never satisfactorily shown that the new survey directed by the abandonment order was made, although Dr. Martin did testify as follows:

Q — ■ “Was there any survey made on any alternate route?”
A— “There was a survey reported on, and I presume it was made otherwise they couldn’t have reported it. The engineering staff brought in a map showing an alternate way of getting around Olive Hill on the north side of the town.”
Q — ■ “Had that been made some years previously?”
A— “I can’t answer that; I don’t know when it was made. About the time the Olive Hill people came in to urge that the project through the city be resumed, the engineering staff at my request brought in the drawing and explained the terrain and estimates of the cost.”

Again, this circumstance is entirely consistent with a bona fide intention to abandon as of the time of the order. It is to be expected that such an order would be followed by pressure to reinstate the project, and in the world of government and politics it is an absolute requisite to lend a respectful and serious ear to any supplication of the citizenry. Assuming its good faith at the time of the order, the department not only had a right to change its mind but was morally obliged to do so if conditions ameliorated to the point that it was in the best interest of the public. The immediate response from Olive Hill was enough to justify the department’s marking time on the alternative routing pending further developments that appeared to be in progress. The state ought not to be penalized on account of the department’s willingness to reconsider its action.

5. In letters written during April of 1958 Dr. Martin acknowledged that a restoration of the project was possible, depending on a change in local attitudes with respect to fair values. Later on his successor, Commissioner Oates, worked actively to promote a favorable atmosphere for reinstatement, and sent his right-of-way director to Olive Hill for further negotiations which resulted in tentative settlements with the owners of all but about eight of the remaining parcels. The negotiated prices for 12 parcels were supported by new appraisals and exceeded the original commissioners’ awards by some $15,000. It was at this stage that the commissioner determined to reactivate the project.

The foregoing facts fall in the same evi-dentiary category as the department’s alleged failure to follow through with a new survey. They manifest nothing more than a conciliatory response by the highway department to the efforts of the mayor and other interested people of Olive Hill to bring about a reconsideration. A significant circumstance in this respect is that those efforts were initated by citizens and officials of Olive Hill, and not by the state. There is no evidence that any representative of the state, following the abandonment, took any action or made any statement indicating a possible reinstatement until after inquiries in that regard had been received from persons desiring such a change.

6. The order in question declared the project to be abandoned “without prejudice” and specifically excluded “the right of way already acquired and paid for.”

“Without prejudice” is an expression familiar in legal terminology. When an action is dismissed without prejudice we take it as being noncommittal with respect to future action. When orders have- been entered which might otherwise be binding it is a precautionary device to prevent that possibility. In the instant case the state had prosecuted a group of cases through judgment in the county court and one of them to the point of a jury verdict in circuit court. Therefore, its abandonment of the project “without prejudice” had a good and sufficient purpose if only to serve as protection against the very thing that should not have happened, but did happen, when both the county and circuit courts at a later date said it was “bound” by the old judgments and verdict. Our opinion is that the use of the expression “without prejudice” in the abandonment order did not evince any equivocation of purpose.

As to retention of the rights theretofore acquired and paid for, what we have already said in item 3 of this enumeration is sufficiently explanatory of the state’s position regarding the $249,000 it had invested in rights-of-way along the abandoned route. The department’s legal advice was to the effect that this money was largely recoverable. It would have been improvident to release the easements summarily and without an effort to secure reimbursement. Retention of its rights until it was able to determine what could be done to salvage this large investment was not an indication that the state intended to come back and build the road there later.

When all of the proof in the case is carefully analyzed it cannot be fairly said that any of it is inconsistent with the state’s claim of a good faith intention, at the time its order was entered on March 6, 1958, to abandon the route through Olive Hill and relocate it around the town. Therefore, i? is our opinion that the finding of fact to the contrary was clearly erroneous. The state is entitled to maintain the new proceedings and, pending final judgments fixing the awards, the property owners should be ordered to remit the respective amounts received in excess of the commissioners’ awards in the new suits.

The effect of a “bad faith” abandonment would have been to forfeit the state’s power of eminent domain and prevent construction of the highway along the original route through the town at any time in the foreseeable future unless the right-of-way acquisition could be completed by agreement with the holdout owners. We recognize that the circuit court, in adopting the theory that the awards made in the old suits were still in effect, probably sought a reasonable middle ground through which the state could escape this dilemma. Its close brush with disaster in these cases illustrates the desirability of legislation making the reinstatement or renewal of condemnation proceedings subject to a waiting period rather than a state of mind at the time of abandonment or dismissal.

The orders of February 19, 1960, overruling the state’s motion to redocket the old cases theretofore dismissed in March of 1958 should be modified by deletion of the recitations to the effect that the state is bound by the judgments (or, in the Mc-Glone case, the verdict) in the initial proceedings and that the legal effect of the dismissals was to dismiss the appeals rather than the actions. So modified, the orders of February 19, 1960, in the six “old” cases are affirmed, with costs of the appeals to be divided equally between the appellant and appellees.

The judgments of December 11, 1959, in the six “new” cases and the judgment of December 18, 1959, in the Parsons-Johnson case are reversed and the respective causes remanded for further proceedings consistent with this opinion, with costs of the appeals to be taxed to the appellees.


author: PER CURIAM.

text:
    Elva ALVEY, Plaintiff-Respondent, v. SEARS, ROEBUCK AND COMPANY, a Corporation, Defendant-Appellant.
    No. 49163.
    Supreme Court of Missouri, Division No. 2.
    July 16, 1962.
    Motion for Rehearing and Motion to Transfer to Court en Bane Denied Sept. 10, 1962.

      William A. Rundíe, Jr., F. Burck Bailey and Morrison, Hecker, Cozad & Morrison, Kansas City, Kahn, Adsit & Arnstein, Chicago, of counsel, for appellant.
    Arthur C. Popham, Kansas City, Pop-ham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   PER CURIAM.

This is a suit to recover damages for personal injuries alleged to have been sustained by plaintiff when she fell in an aisle of defendant’s place of business in Kansas City, Missouri. A trial resulted in a verdict for plaintiff in the sum of $7400. Defendant appealed to the Kansas City Court of Appeals. That court reversed the judgment without remand on the theory that the evidence was insufficient to support a verdict for plaintiff. Alvey v. Sears, Roebuck & Co., Mo.App., 350 S.W.2d 257. On motion, the Court of Appeals transferred the cause to this court. The case is here to be considered as though it had been appealed directly to this court.

Two points were briefed by defendant: (1) that the trial court should have directed a verdict for the defendant; and (2) that the trial court erred in admitting evidence of a statement alleged to have been made by an unknown bystander to the effect “That is what she fell on.” The bystander is alleged to have exhibited a small, round plastic object about 1½ inches in length and ¼ inch in diameter. This object was designated as Exhibit 1 and introduced in evidence at the trial of the case.

The evidence in the record justifies the following statement of facts: About midday on December 17, 1956, plaintiff, 49 years old, went to defendant’s store with her son Ernest, 19 years old. After entering the store, they walked south in the main aisle about 6 feet in width. As plaintiff and her son were walking along, they noticed a man about 15 feet ahead of them who later proved to be Eugene Tallant, an assistant manager of the store. Sporting goods and automobile accessories were on display on either side of the aisle. Plaintiff testified that after they had walked about 15 feet down the aisle, she stepped on something round which rolled and caused her to fall forward to the floor; that while she was on the floor, a man gave her son an object (Exhibit 1 above mentioned) and the man stated, “That is what she fell on.”

The son testified, corroborating the evidence of his mother. He further testified that the unknown bystander gave Exhibit 1 to him and he in turn gave it to his father. The evidence of plaintiff and her son was that after she fell, a man came to them and helped the mother; that this man ordered a wheelchair; and that plaintiff was taken to a restroom and later went home with her son.

Eugene Tallant testified that he was the assistant manager in the department which included the aisle where plaintiff fell. Pie stated that he heard a commotion and went to the aisle and found plaintiff on the floor; that he helped her up, but did not say anything to her; that he did not order the wheelchair. He further testified that he was about IS feet from the place plaintiff fell when he heard the commotion; that he did not see Exhibit 1 until the day of the trial; that he saw no bystander with an object and did not hear anyone say, “That is what she fell on.” Other evidence may be stated if necessary in passing on points of law presented for our consideration.

We shall first dispose of the second point, that the statement of the bystander should not have been admitted. Defendant says that this alleged statement was hearsay. Plaintiff says it was res gestae and admissible. Plaintiff further says that it was the defendant who first brought this evidence into the case. We are of the opinion that plaintiff is correct in her contention that it was the defendant who first adduced this evidence. We quote from the record as to what occurred during the examination by Mr. Popham, plaintiff’s attorney :

“Q All right. Now, do you know what it is that made you fall?
“A Yes. I stepped on a round object, and my foot slipped.
“Q When you stepped on it, what did it do?
“A My foot rolled forward.
“Q And when it rolled forward, what happened to you?
“A Well, I threw up both hands to keep from falling backward, and I just leaped forward and fell right on my stomach and face.
“MR. POPHAM: Well, I have it somewhere.
“Q (By Mr. Popham) Did you see that thing afterwards?
“A Yes.
“Q What was the color of it?
“A Red.
“Q Did you know it was there before you stepped on it?
“A No, I didn’t.
“MR. POPHAM: I will find that later. I have got it someplace in the file in an envelope.
“THE COURT: Let’s have an afternoon recess, gentlemen, while counsel looks for his evidence.
“Proceed, gentlemen.
“Q (By Mr. Popham) I have found it. Mrs. Alvey, is this the object that you were talking about?
“A Yes, sir.
“MR. POPHAM: Would you offer this in evidence?
“(PLAINTIFF’S EXHIBIT NO. 1 WAS MARKED FOR IDENTIFICATION.)
“THE COURT: Let me see it.
“MR. RUNDLE (Attorney for the defendant) : I would like leave to ask some qualifying questions, Your Hon- or, with reference to this object before Your Honor rules on it.
“TPIE COURT: Go ahead.
“Q (By Mr. Rundle): Mrs. Al-vey, you have testified that what has been marked as Plaintiff’s Exhibit 1 is what you fell on in Sears’ store on the date in question?
“A What is it?
"Q I said that you have testified that this object which has been marked as Plaintiff’s Exhibit 1 is what you fell on in Sears Roebuck Store on December 17, 1956?
“A Yes.
“Q May I ask you, Mrs. Alvey, when was the first occasion after your fall that you saw this object which has been marked as Plaintiff’s Exhibit 1?
“A Well, there is a fellow came — ■
“MR. POPHAM: Keep it up. We can’t hear you.
“A A man came down—
“Q (By Mr. Rundle) When was the first time that you saw this object following' the time that you fell?
“A When the man picked it itp and handed it to my son.
“Q When the man picked it up and handed it to your son?
“A Yes, sir, immediately after I fell.
“Q And that is the first time that you saw it?
“A Yes, sir.
“Q Did you look around and see this on the floor, yourself?
“A No.
“Q And the only reason that you say this is what you fell on is because somebody unknown to you handed it to your son?
“A He said, ‘That is what she fell on.’
“Q I didn’t ask you that. I asked you to answer my question. You said this is the reason that you think that you fell on it is because someone picked it up and said that you fell on it, and that is the only reason that you say that you fell on it?
“A Yes.
“MR. POPHAM: May I ask her, please? ,May I have that, sir?
“Q (By Mr. Popham) Immediately after you fell and' this man picked it up and handed it to your son, what did he say?
“MR. RUNDLE: I object to that as calling for hearsay testimony.
“MR. POPHAM: It is part of the res gestae. It occurred at the same time, Your Honor.
“THE COURT: Overruled.
“A He said, ‘That is what she fell on.’
* * * * * *
“Q (By Mr. Popham) Did you see this man pick it up and hand it to your son?
“A Yes, sir. Pie picked it up off the floor.”

The examination of the witness by defendant’s counsel was had in the presence of the jury. No motion was made to strike the evidence from the record. It may be noted here that Exhibit 1 was properly admitted for the reason that plaintiff testified that she saw the unknown bystander pick it up from the floor. In the circumstances, defendant is in no position to urge that the evidence as to the statement made to the effect “That is what she fell on.” was inadmissible under the res gestae rule. “An objection to the admission of evidence is waived where the same or similar evidence has been elicited or introduced by the objector, * * 88 C.J.S. Trial § 116, p. 236; Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859, loc. cit. 865 (2, 3); State ex rel. State Highway Commission v. Schutte Investment Co., Mo., 334 S.W.2d 241, loc. cit. 246, 247 (5, 6).

If, as defendant contends, the evidence elicited was objectionable, a motion to strike the evidence from the record should have been made. 88 C.J.S. Trial § 133, p. 267. In the state of the record, the evidence concerning the statement made by the bystander was placed before the jury by the defendant. Defendant says the questions asked were preliminary or qualifying questions for the purpose of making an objection. That did not obviate the requirement of asking the court to instruct the jury to disregard the answer or statement and have it stricken from the record. Le Grand v. U-Drive-It Co., Mo., 247 S.W.2d 706, loc. cit. 714 (15).

In the brief and in the oral argument, defendant stated that even if the evidence as to the statement made by the bystander be admitted and Exhibit 1 was on the floor and caused plaintiff to fall plaintiff nevertheless failed to make a case for a jury.

The question of whether the evidence in the record before us is sufficient to sustain a verdict for plaintiff is indeed narrow and close. Plaintiff, for her recovery, relied upon the fact that a foreign substance on the floor of defendant’s place of business caused her to fall and to be injured. Therefore, cases wherein a defective condition of the premises caused injury are not in point. Neither are cases in point wherein plaintiffs were permitted to recover where the evidence disclosed the foreign object or condition causing the injuries had existed for a such a length of time as to import constructive or actual knowledge on the part of the defendant. For a discussion of a number of such cases, see Turner v. College Amusement Co., Mo., 217 S.W.2d 504, and see State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99, where a defendant was held not liable because plaintiff faded to show the length of time the foreign substance had been on the floor of the defendant’s store.

In Lance v. Van Winkle, 358 Mo. 143, 213 S.W.2d 401, this court held a plaintiff who had slipped on ice cream spilled on a step of a vestibule was not entitled to recover because no showing was made as to how long it had been there. In that case, a porter had passed by the point only a few minutes before plaintiff fell. That case is relied upon by the defendant in this case. This court pointed out that several witnesses testified there was no ice cream on the step a few minutes before plaintiff fell. Further, the court commented that the ice cream could have been spilled after the porter passed by and before plaintiff’s fall.

Plaintiff relies greatly upon the case of Maybee v. Missouri Orpheum Corporation, 238 Mo.App. 537, 181 S.W.2d 771. In that case, a theater patron was shown to a seat by an usher. A flashlight was used to show the way. Later, the patron wished to go to another row of seats. As she was about to step into the aisle her foot caught under a rug which was cupped-up causing her to fall. The Kansas City Court of Appeals, by Cave, J., held plaintiff could recover because, as said in the opinion, 181 S.W.2d loc. cit. 776 (9-12): “Without repeating the evidence, it seems clear to us that certain facts were proven which support the inference thht the cupped-up condition existed prior to the time plaintiff entered the theater; and other proven facts which support the inference that defendant’s agent, Mock, saw, or, by the exercise of ordinary care could have seen, such dangerous condition in time to have warned the plaintiff.”

It is clear in the case before us that the evidence does not show how long the object (whatever it was), which plaintiff says she stepped on and caused her to fall, was present on the floor. Notwithstanding that fact, the question remains whether the evidence, which for the purpose of our review we must treat as true, justifies a verdict for plaintiff. Such evidence shows: that Tallant whose duty it was to be on the lookout for foreign objects on the floor of his department walked through the aisle about 15 feet ahead of plaintiff; that no one was in the aisle between plaintiff and Tallant during the time in question; that Tallant walked by th« point where plaintiff fell not more than a few seconds before the fall; that there was an object on the floor on which plaintiff stepped and fell.

Considering that evidence to be true, did it justify the jury to find that the foreign object was lying in the aisle as Tallant passed by? And could the jury find that the failure on Tallant’s part to discover the object and pick it up or warn plaintiff constitutes negligence? It is true, as defendant contends, that the object (Exhibit 1) on the floor may have been kicked or rolled to the point where plaintiff stepped on it between the time Tallant passed and when plaintiff reached that point. The jury could well have considered that a possibility but highly improbable. The jury could well have found that it was more likely that the object was there when Tallant passed that point.

We cannot say as a matter of law that Tallant was not negligent in failing to discover and pick up the object on the floor when he passed the point in question.

We rule that the questions of fact of whether the object was on the floor when Tallant passed by and whether he was negligent were for a jury to decide. Brinkley v. United Biscuit Co. of America, 349 Mo. 1227, 164 S.W.2d 325, loc. cit. 332 (6, 7); Schwartz v. S. S. Kresge Co., 238 Mo.App. 1165, 185 S.W.2d 37, loc. cit. 39(2); Maybee v. Missouri Orpheum Corp., 238 Mo.App. 537, 181 S.W.2d 771, loc. cit. 775(5) (6) (7). See 88 C.J.S. Trial § 211, p. 470, where the applicable rule is stated thus: “Inferences from the evidence are fact questions, and hence, generally, where there is any credible evidence sufficient to support an inference sustaining a verdict, the inferences to be deduced from the facts in evidence are for the jury, * *

We have concluded that a verdict for plaintiff was authorized by the evidence and the judgment is hereby affirmed.


author: STONE, Judge.

text:
    RED-E-GAS COMPANY, a corporation, Plaintiff-Appellant, v. Harold E. MEADOWS, Defendant-Respondent.
    No. 8045.
    Springfield Court of Appeals. Missouri.
    Sept. 10, 1962.

      James B. Harrison, Sullivan, for plaintiff-appellant.
    Paul L. Bell, Steelville, for defendant-respondent.
   STONE, Judge.

Red-E-Gas Company (hereinafter referred to as plaintiff), a Missouri corporation with its principal place of business in St. Louis County, Missouri, sued Harold E. Meadows (hereinafter referred to as defendant) of Leasburg, Missouri, on a running account for bottled propane gas and for supplies (such as stands, hoods, bases, regulators, tubing and fittings) needed in initiating bottled gas service and in installing tanks for bulk gas service; and, upon trial, the jury returned a verdict against defendant for $2,364.73, the principal sum sought in plaintiff’s petition. Since defendant did not appeal, the judgment entered on that verdict stands unimpugned and unassailed; and, the scope and purpose of our appellate review being to determine whether “error was committed by the trial court against the appellant” [Rule 83.13(b), V.A.M.R.; V.A.M.S. § 512.160(2)], we are not concerned as to the propriety of that judgment. Russell Co. v. Spurgeon, Mo.App., 258 S.W. 10, 11. See also Prentice v. Williams, Mo.App., 324 S.W.2d 466, 467(1), and Missouri-Kansas-Texas R. Co. v. Freer, Mo.App., 321 S.W.2d 731, 741.

However, defendant filed a counterclaim in which he alleged (1) a breach by plaintiff of a written contract captioned “Dealers Agreement” and executed on September 15, 1952, which pertained to the supplying of bottled gas and equipment to defendant for use in serving customers to be solicited by defendant in Leasburg and “the community adjacent thereto,” and (2) two separate breaches by plaintiff of an oral agreement entered into “shortly thereafter” (the counterclaim alleged about March 1, 1953) which pertained to the supplying of bulk gas to customers to be solicited by defendant in the same area. The jury returned a ver-diet for $3,364.73 against plaintiff on the counterclaim, thus fixing defendant’s damages at precisely $1,000 more than the sum awarded plaintiff on its petition. Our present review is upon plaintiff’s appeal from that judgment.

By the written contract of September IS, 1952, plaintiff (referred to in the contract as Company) granted to defendant (referred to as Dealer) “the only authorized Red-E-Gas dealership for the domestic application of Red-E-Gas and the use of the Red-E-Gas trademark” in Leasburg and the adjacent community, and plaintiff agreed, among other things, that “Company will maintain at all times a supply of Red-E-Gas, in cylinders, at its plant and will supply Dealer * * * in Company owned standard I. C. C. cylinders as hereinafter provided with the consumer requirements of all Red-E-Gas for all Dealer’s customers obtaining gas service from or through the Dealer.” Among the contractual obligations imposed upon defendant were (a) that “Dealer will not, directly or indirectly, engage in or be connected or concerned with the business of selling or distributing any liquified petroleum gas other than Red-E-Gas obtained from Company” and (b) that “Dealer will not permit the use of Red-E-Gas equipment and cylinders for any purpose other than the utilization of Red-E-Gas, and will exercise every precaution to insure that same is done by each and every consumer that Dealer serves.” By its terms, the written contract was to continue in force for one year, unless sooner terminated by defendant upon thirty days’ written notice, and thereafter until terminated by either party upon thirty days’ written notice.

Defendant entered upon his dealership under the written contract with 10 of plaintiff’s cylinders filled with propane. When a cylinder was placed in service on the premises of a customer solicited by defendant, the customer signed a contract (copy of which is not in the record) which in due course was delivered by defendant to plaintiff’s office in St. Louis County; and, for each filled cylinder thus placed in service under a customer contract, plaintiff permitted defendant to take another filled cylinder. Of course, defendant paid for the propane but not for the cylinder, which remained the property of plaintiff. The breach of the written contract charged in defendant’s counterclaim was that on or about January 11, 1957, plaintiff refused to deliver additional cylinders to defendant unless he purchased the cylinders themselves as well as the propane therein. Upon trial, defendant was unable to fix the date of this alleged breach more definitely than that it was “probably ’56” or between three and four years prior to termination of the written contract in 1960. Plaintiff’s evidence indicates that the date probably was in October 1956, when the unpaid balance on defendant’s open account had reached $2,364.-73 (the principal sum for which this suit subsequently was instituted) and defendant was denied further credit. Whatever the precise date may have been, it appears that defendant’s “cylinder float” (i. e., the number of plaintiff’s cylinders in service with defendant’s customers) then had risen to 326 cylinders.

Plaintiff’s officers did not deny that, at this stage of defendant’s dealership, they had refused to deliver additional cylinders to him; but their testimony suggests (and we use that verb advisedly for there is much in the transcript which simply smacks of suggestion) that such refusal to deliver additional cylinders was motivated not only by the state of defendant’s open account but also by the compelling consideration, that, although defendant’s “cylinder float” continued to increase sharply, the “turnover” in those cylinders (i. e., the usage of propane supplied by plaintiff as manifested by the refilling of empty cylinders and the exchange of filled cylinders for empty ones) declined steadily during 1955 and 1956. As plaintiff’s treasurer put it, “they (the cylinders) had to be filled somewhere, they were not being filled by us.” Thus, plaintiff concluded that defendant was violating the hereinbefore-quoted contractual obligations imposed upon him. However, until the written contract was terminated in 1960, plaintiff continued to do business with defendant on a cash basis and continued to refill empty cylinders and to exchange filled cylinders for empty ones, so that the full extent of plaintiff’s alleged breach of the written contract was its refusal to deliver additional cylinders to defendant which would have resulted in further increase of his then “cylinder float” of 326 cylinders.

By the oral agreement entered into about March 1, 1953, defendant was to solicit customers in the same area for btdk gas service to be supplied by plaintiff’s periodic deliveries of propane from a tank truck into large tanks on the customers’ premises. Defendant’s solicitation was to include not only prospective customers who already owned suitable tanks but also those to whom plaintiff’s tanks might be leased or sold. Under this oral agreement, defendant was to install plaintiff’s tanks, was to receive from plaintiff $5 for each 500-gallon tank and $10 for each 1000-gallon tank thus leased or sold, and was to be paid by plaintiff one cent per gallon for all propane delivered to bulk gas customers obtained by defendant. These customers were to be billed by, and were to make all payments directly to, plaintiff. In this bulk gas agency or dealership, defendant obtained some 60 to 65 bulk gas customers for plaintiff. Of these, 21 were served initially in tanks leased from plaintiff (again we note that the form of lease agreement is not before us), but 7 of those 21 customers subsequently purchased the tanks so that, at the time of plaintiff’s alleged breaches of the oral agreement, only 14 customers were being served in leased tanks.

The first breach of the oral agreement, as alleged in defendant’s counterclaim, was that on or about January 28, 1955, plaintiff notified defendant that it would make no more deliveries of bulk gas to customers in the Leasburg area but that, if defendant desired to make such deliveries, plaintiff would supply a tank truck to him without charge. According to defendant, “I told them (plaintiff’s officers) at the time I couldn’t make deliveries for that price, one cent a gallon, and I asked them for two cents,” but “the only thing they would do was to pay the one cent a gallon, that is all.” So, “it was either me (defendant) not delivering the gas or accept their offer.” Feeling an obligation to service “my customers,” defendant took plaintiff’s truck and made bulk gas deliveries until September 1955, when plaintiff resumed such deliveries.

The second breach of the oral agreement, as charged by defendant, was that on or about June 22, 1956 (the evidence indicates that the date actually was August 1, 1956), plaintiff again refused to deliver bulk gas to customers in the Leasburg area, sold to Hausgas, Inc., the 14 tanks owned by plaintiff but leased to customers in that area, and also gave to Hausgas “the names and addresses of all the defendant’s customers.” The parties agreed that on or about June 22, 1956, plaintiff had offered to sell the 14 leased tanks to defendant for $4,000 but that defendant then had refused to pay that much for them. Plaintiff’s evidence was that, when defendant did not accept the $4,000 offer or make a counteroffer within a reasonable time, the tanks were sold to Hausgas on August 1, 1956, for $3,575, so that defendant’s subsequent offer of $3,500 was simply another instance of “too little too late.” Defendants version was that his $3,500 counteroffer had been made over the telephone later on the same day he had rejected plaintiff’s original offer, that plaintiff’s president then had said that he would “think it over” and would “let you (defendant) know before I do anything about the tanks,” but that defendant had heard nothing further about the 14 leased tanks until he learned by chance that they already had been sold to Hausgas.

Although plaintiff unsuccessfully moved for a directed verdict on the counterclaim at the close of the evidence and again by after-trial motion [Rule 72.02, V.A.M.R.; V.A.M.S. § 510.290], plaintiff’s only point upon appeal is that defendant’s sole instruction (numbered 2), which purported to cover the counterclaim in its entirety and to authorize a verdict thereon, was prejudicially erroneous in eight particulars. However, two of those specific complaints in substance and effect challenge the sufficiency of the evidence' to permit a recovery of damages for the alleged contractual breaches, and to that subject we now address ourselves.

Considering first the alleged breach of the written contract (i. e., plaintiff’s refusal to deliver additional cylinders to defendant), the only evidence, to which defendant’s counsel points as in any wise bearing upon the damage resulting therefrom, was (a) that defendant’s “cylinder float” had increased from nothing to 326 cylinders during the period from September 1952 to October 1956 and (b) that, in the language of defendant’s brief, “the refusal to furnish more cylinders prevented the growth of his bottle gas business and allowed him to obtain a new customer only when he lost one.” Counsel argues that “these facts in evidence clearly show (sic) the jury how defendant was damaged and that he was”; and, although conceding that “the extent (of damage) is somewhat speculative,” counsel nevertheless insists that "the verdict of the jury was very conservative” and “well supported by the evidence of all the damage.”

With this conclusion, we cannot agree. The essence of defendant’s claim for damage resulting from plaintiff’s alleged breach of the written contract, was (and still is) that defendant thereby lost potential and anticipated profits which he otherwise could and would have realized from subsequent operation of his bottle gas business. Assuming (for the purposes of this discussion) that plaintiff’s failure to furnish additional cylinders was, as defendant hypothesized in his instruction 2, “without just cause or excuse” and thus actionable, the measure of damages for such breach of contract would have been the loss of the net profits, if any, which defendant would have realized but for the breach. In short, defendant could have recovered only “ ‘the profit of the bargain.’” Coonis v. City of Springfield, Mo., 319 S.W.2d 523, 527; Clark v. Smalley Tie & Timber Co., Mo.App., 180 S.W. 435, 437. The record presented to us contains no factual data from which a rational estimate could have been made either (a) as to the number of additional filled cylinders which defendant reasonably could and probably would have placed in service but for plaintiff’s alleged breach of the written contract or (b) as to the net profit per cylinder in service actually realized in the past or reasonably anlici-patable in the future. In fact, the transcript does not permit of an informed judgment as to whether defendant had earned any net profit in the operation of his bulk gas business under the written contract.

Damages for loss of profits resulting from breach of contract may be recovered if, but only if, “the evidence is sufficiently certain and definite to warrant the jury in estimating their extent”; or, as otherwise stated, “anticipated profits are recoverable only when they are made reasonably certain by proof of actual facts which present data for a rational estimate of such profits.” And numerous Missouri cases emphatically declare that a jury should not be permitted to speculate, without substantial basis, as to probable or expected profits, and convincingly demonstrate that our appellate courts have been strict in evaluating the sufficiency of the evidence to warrant a recovery of damages for loss of anticipated profits. Instant defendant had the burden of showing that he had been damaged by the alleged contractual breaches [Tnemec Co. v. North Kansas City Development Co., Mo., 290 S.W.2d 169, 174(3)]; and, to recover more than nominal damages for plaintiff’s alleged breach of the written contract, it was essential for defendant to prove with reasonable certainty the extent of his loss of net profits by reason of such breach. Smalley v. Wunderlich, Mo.App., 62 S.W.2d 919, 920(1); Phillips v. Todd, Mo.App., 180 S.W. 1039, 1042-1043(6). In the light of the authorities hereinbefore cited, it becomes crystal clear that the evidence in the case at bar did not warrant or permit an award of compensatory damages to defendant for loss of anticipated profits by reason of plaintiff’s alleged breach of the written contract.

Wholly aside from the sufficiency of the evidence, defendant’s instruction 2 was grossly inadequate and reversibly erroneous in its submission of the issue of damages. In the first paragraph of instruction 2. defendant hypothesized what he regarded as the salient provision of the written contract and plaintiff’s alleged refusal “to perform that part” of the contract and then closed with this unique direction, towit, “if you further find that defendant was damaged by such refusal, then you should ascertain and determine from the evidence what damages, if any, resulted to the defendant.” In the second paragraph of instruction 2, defendant hypothesized what he regarded as the salient provisions of the oral agreement; and, in the third paragraph of the instruction, he undertook to hypothesize the first alleged breach of the oral agreement and then closed with the same direction concerning damages. In the fourth paragraph of instruction 2, he undertook to hypothesize the second alleged breach of the oral agreement and again closed with the same direction concerning damages. No other instruction dealt with or referred to the issue of damages on the counterclaim.

The measure of damages in an action for breach of contract is a matter of law for the court to declare in its instructions and not a subject to be left to rank conjecture and unbridled speculation by the jury. If ever there was an instruction to which the overworked appellation of “a roving commission” properly might be applied, instant defendant’s instruction 2 must be that instruction. Compare Doll v. Purple Shoppe, 230 Mo.App. 256, 265, 90 S.W.2d 181, 186(5); Phillips v. Todd, supra, 180 S.W. loc.cit. 1042(5). Leaving the proper measure of damages and the permissible elements of damages wholly to the whim and fancy of the jurors, and authorizing them to award damages in whatever sum they might “ascertain and determine from the evidence,” instruction 2 in effect invited them to make defendant whole in accordance with their unguided, undirected and untrammeled notion of what the fireside equities of the situation revealed by the evidence might have justified. In thus submitting the issue of damages for the alleged contractual breaches, instruction 2 was fatally deficient and reversibly erroneous.

If, with respect to the oral agreement, the cause of action on which defendant seeks to recover is one for damages for breach of contract (and it appears to be), we entertain grave doubt whether defendant made a submissible case. For, as we understand the testimony, the oral agreement was a contract of agency for an indefinite period of time, its duration was not fixed expressly or impliedly, and its expiration did not depend upon the completion of a given undertaking or upon the happening of a stated event. If that be so, the oral agreement was terminable at the will of either party. True, the general rule conceding the right to revoke a contract of this character at will is subject to the limitation sometimes stated in this language, towit, that “ ‘where an agent is employed to perform an act which involves expenditure of labor and money before it is possible to accomplish the desired object, after the agent has in good faith incurred expense and expended time and labor, but before he has had a reasonable opportunity to avail himself of the results of this preliminary effort, it could not be permitted that the principal should then terminate the agency, and take advantage of the agent’s services, without rendering any compensation therefor.’ ” But this limitation, which “reckons with such equities as may have accrued in the agent’s favor while acting in good faith” [Meyer v. Pulitzer Pub. Co., 156 Mo.App. 170, 177, 136 S.W. 5, 7], recognizes that in appropriate circumstances the agent may have a cause of action on quantum meruit [Glover v. Henderson, 120 Mo. 367, 375, 25 S.W. 175, 177(1); Beebe v. Columbia Axle Co., 233 Mo.App. 212, 223, 117 S.W.2d 624, 631-632(13)]; and instant defendant’s counterclaim was not pleaded, tried or submitted on that theory.

However, we need not pursue further the unnecessary and unrewarding inquiry as to whether defendant upon the first trial made, or upon retrial may make, a sub-missible case. For, with plaintiff upon this appeal presenting the single point that instruction 2 was prejudicially erroneous and making the sole request that the judgment on the counterclaim be set aside and the cause be remanded for retrial thereon, its conduct of the case here in effect concedes that on the first trial defendant made a sub-missible case on his counterclaim [Clooney v. Wells, Mo., 252 S.W. 72, 73(1); Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 43], and we can neither know nor foresee what may occur upon retrial. Similarly, it becomes unnecessary for us to deal with other specific assaults upon defendant’s instruction 2. For, it must be apparent from what we have written that the judgment on the counterclaim may not stand, and in drafting instructions upon retrial defendant’s counsel may meet and satisfy the other complaints about instruction 2.

The judgment on defendant’s counterclaim is set aside and the cause is remanded for retrial thereon.

RUARK, P. J., and McDOWELL, J., concurred.

      . Rhodes v. Holladay-Klotz Land & Lumber Co., 105 Mo.App. 279, 315(6), 79 S.W. 1145, 1155(6); Phillips v. Todd, Mo.App., 180 S.W. 1039, 1042-1043(6); Suddoth v. Bryan, 39 Mo.App. 652, 659. See also Dingman v. Elizabeth Arden Sales Corp., Mo.App., 284 S.W.2d 16, 18-20(3, 4); Dement v. McNail, Mo.App., 281 S.W. 128, 129(3); American Pub. and Engr. Co. v. Walker, 87 Mo.App. 503, 510(4).

      . In the interest of minimizing the possibility of error upon retrial, it is noted that the mere conclusion or opinion of a witness as to the loss of anticipated profits, if not predicated upon factual data in evidence which would permit of a rational estimate, should not be received over a timely and adequate objection and does not constitute competent and substantial evidence to show such loss of profits. Yaffe v. American Fixture, Inc., Mo., 345 S.W.2d 195, 200(6); Tnemec Co. v. North Kansas City Development Co., Mo., 290 S.W.2d 169; Kopff v. Deves, Mo.App., 324 S.W.2d 768, 772; Morrow v. Missouri Pac. Ry. Co., 140 Mo.App. 200, 123 S.W. 1034.

      . Spruce Co. v. Mays, 333 Mo. 582, 593, 62 S.W.2d 824, 828(5); Wandell v. Ross, 241 Mo.App. 1189, 1200, 245 S.W.2d 689, 694. See also Coonis v. City of Springfield, Mo., 319 S.W.2d 523, 528(7).

      . Tnemec Co. v. North Kansas City Development Co., supra, 290 S.W.2d loc. cit. 174(5, 6); Kopff v. Deves, supra, 324 S.W.2d loc. cit. 772; Mitchell v. Southwestern Bell Tel. Co., Mo.App., 298 S.W.2d 520, 523(3, 4). See again cases cited in note 3, supra.

      . Doll v. Purple Shoppe, 230 Mo.App. 256, 265, 90 S.W.2d 181, 186(6); Rhodes v. Holladay-Klotz Land & Lumber Co., supra, 105 Mo.App. loc. cit. 314(5), 79 S.W. loc. cit. 1155; Matney v. Gregg Bros. Grain Co., 19 Mo.App. 107, 113(4). See also Suddoth v. Bryan, supra, 39 Mo.App. loc. cit. 658; Morrison v. Yancey, 23 Mo.App. 670, 675.

      . Niehaus v. Gillanders, Mo.App., 184 S.W. 949, 951(3); Phillips v. Todd, supra, 180 S.W. loc. cit. 1042(5). See again the Doll, Rhodes and Matney cases, supra note 5. Consult also Haysler v. Owen, 61 Mo. 270, 273(1); Kick v. Doerste, 45 Mo.App. 134, 140-141(4); Flynt v. Chicago, B. & Q. Ry. Co., 38 Mo.App. 94, 98(2).

      . Superior Concrete Accessories v. Kemper, Mo., 284 S.W.2d 482, 490(16); Staroske v. Pulitzer Pub. Co., 235 Mo. 67, 77, 138 S.W. 36, 39(6). See also Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 271 (17); Massachusetts Bonding & Ins. Co. v. Simonds-Shields-Lonsdale Grain Co., 226 Mo.App. 1071, 49 S.W.2d 645, 649(2).

      . Gibbs v. Bardahl Oil Co., Mo., 331 S.W.2d 614, 615; Glover v. Henderson, 120 Mo. 367, 377(2), 25 S.W. 175, 177; Beebe v. Columbia Axle Co., 233 Mo.App. 212, 219, 117 S.W.2d 624, 629. See also Superior Concrete Accessories v. Kemper, supra, 284 S.W.2d loc. cit. 491-492; Meyer v. Pulitzer Pub. Co., 156 Mo.App. 170, 177, 136 S.W. 5, 7(4); Haynes v. Falstaff Brewing Corp., 8 Cir., 280 F.2d 417; Terre Haute Brewing Co. v. Dugan, 8 Cir., 102 F.2d 425, 427(7).


text:
    Ruth LANHAM (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant) Appellant.
    No. 30706.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      William M. Corrigan, St. Louis, for appellant.
    Samuel A. Goldblatt, William L. Mason, Jr., St. Louis, for respondent.
   J. MORGAN DONELSON, Special Commissioner.

Ruth Lanham brought this suit for personal injuries against the St. Louis Public Service Company, a corporation, and the City of St. Louis. The cause was tried to a jury which returned a verdict for plaintiff and against defendant St. Louis Public Service Company in the amount of $3,000.-00, and in favor of the defendant, City of St. Louis. Judgment was rendered in accordance with the verdict returned by the jury. The St. Louis Public Service Company filed its after trial motion which was overruled by the trial court, and it has perfected this appeal. The plaintiff did not appeal from the judgment rendered on the verdict in favor of the City of St. Louis. The parties will be referred to herein as plaintiff and defendant Service Company.

Defendant complains, first, that the trial court erred in failing and refusing to direct a verdict for it; second, that the trial court erred in giving Instruction No. 1; third, that the trial court erred in giving Instruction No. 17; and fourth, that the verdict was excessive.

In determining the issue of whether a submissible case was made for the jury and the trial court erred in not sustaining defendant Service Company’s motion for a directed verdict at the close of all the evidence, plaintiff is entitled to have all the evidence given in her case viewed in the light most favorable to her, and defendant’s evidence will be disregarded except insofar as it may aid plaintiff’s case. Plaintiff is to be given the benefit of any and all reasonable inferences to he drawn from the evidence which is not in conflict with her theory of the case. Missouri Digest, Appeal & Error, 927(7), 989; Taylor v. Hitt, Mo.App., 342 S.W.2d 489. The recitation and review of the evidence is therefore limited to that which hears upon this issue and the other issues necessary for a decision in this case.

Plaintiff, age 53, on September 1, 1959, at 3 :30 P.M. boarded a westbound Linden-wood bus, which she rides almost every day, on her way home from work at Apparel Contractors in the City of St. Louis, Missouri. She is employed as a machine operator and inspector. As the westbound bus approached Sublette Avenue on Southwest Avenue, she rang the buzzer and the bus stopped at the northwest corner of Sub-lette Avenue in the bus zone which is surfaced with asphalt. The asphalt area was about 30 feet long and a fireplug was located about 20 feet from the eastern end of the asphalt. Plaintiff was getting off the bus at the rear door which opened with the fireplug directly in front of the door. She had to step to one side or the other in order to get out of the door. Plaintiff made one step out the door, down on the ground, and her left foot hit “that” hole and she fell. The hole was described as about 10 inches long, 10 inches wide, and 3 inches deep and located to the east side, or right, of the fireplug. Plaintiff stated that she was watching where she was stepping as she got off the bus, that she would not have stepped in the hole had she seen it, that she did see the grass that had grown up, dried and had fallen into the hole, which hid the hole, that when she stepped into the hole the grass was mashed down, and that she had alighted in the bus zone for years but never noticed the hole before.

Mrs. James Hill, plaintiff’s daughter, testified that she was familiar with the bus stop in question. She described the location of the fireplug. She stated there was a hole approximately 10 inches long, 10 inches wide, and 3 inches deep near the curb and near the left of the fireplug in May, 1959. She had fallen in it while alighting from a bus. She said she did not see the hole as she alighted from the bus in May, 1959, because the hole was covered with grass and difficult to see. Plaintiff was not told of these facts by her daughter.

Plaintiff testified that when she got up from the ground her left ankle, instep and thigh pained her; that she was x-rayed and fitted with a walking cast on her left leg from her knee to her foot, which she wore for four weeks. X-rays revealed two small evulsion fractures of the talus bone of the left ankle according to her doctor and that it was his opinion that there would very likely be some permanent residual injuries. Plaintiff still complains of soreness and swelling of the ankle and foot.

At the time of this occurrence plaintiff was earning $1.00 per hour and at the time of trial was earning $1.20 per hour. She also testified she lost six weeks from work immediately after the occurrence because of her injuries. She received a bill for $10.00 from Christian Hospital. She pays all doctor bills from her own salary. Defendant Service Company presented evidence that this was a “no report” occurrence and that it was unaware of the alleged occurrence or accident at the time. It knew nothing about any hole at this particular bus zone.

“In view of the facts outlined, our immediate obligation is to ascertain the duty, if any, the defendant, as a carrier of passengers, owed to the plaintiff at the time of the accident. It is an elementary principle of the law of torts that there can be no actionable negligence in the absence of the existence of some duty on the defendant’s part owing to the plaintiff, which duty has been neglected or violated by the defendant, with the injury suffered by the plaintiff directly attributable thereto and flowing therefrom. Vairo v. Vairo, Mo.App., 99 S.W.2d 113. This duty, or lack of duty, cannot be ascertained until we have determined the legal relationship existing between the parties at the time of plaintiff’s injury.” Meyer v. St. Louis Public Service Co., 241 Mo.App. 1057, 253 S.W.2d 525, l. c. 528.

Plaintiff in this case in her petition and by her Instruction No. 1 submitted that plaintiff was a passenger on defendant’s bus and that defendant Service Company owed the duty to plaintiff to exercise the highest degree of care until she had safely alighted from the defendant Service Company bus at a reasonably safe place. It has long been established that if the relationship of passenger and carrier exists at the time of injury the law imposes on the carrier the duty to exercise the highest degree of care. This duty continues until the passenger has been discharged from the bus at a reasonably safe place. After the passenger has safely alighted from the bus and is upon the street or sidewalk, she is no longer a passenger and the carrier is no longer responsible. Gott v. Kansas City Rys. Co., Mo., 222 S.W. 927; Lacks v. Wells, 329 Mo. 327, 44 S.W.2d 154.

Under the evidence outlined and the plaintiff’s theory of the case, we find that a submissible case was made for the jury and the trial court did not err in overruling defendant Service Company’s motion for a directed verdict at the close of all of the evidence. When defendant proceeded to present its case after plaintiff closed her case, defendant waived its motion for a directed verdict at that time. Oglesby v. Missouri Pacific Ry. Co., 177 Mo. 272, 76 S.W. 623.

Defendant Service Company’s Point III raised in the brief claims error in the giving and reading by the trial court the measure of damage instruction, No. 17, particularly paragraphs four (4) and seven (7) thereof, as not being supported by the evidence. Instruction No. 17 reads in part as follows:

“And in arriving at the amount, if any, of your verdict, you may take into consideration and account:
⅝ ⅜ ⅜ ⅜ ‡ ⅜
“4. Such sum, if any, as you may find and believe from the evidence plaintiff has expended, or incurred liability to expend, for hospitalization as the direct result of her bodily injuries, if any;
******
“7. Such loss of earnings, if any, as you may find and believe from the evidence she will with reasonable certainty in the future sustain as the direct result of her bodily injuries, if any.”

With this contention we must agree. In fact, plaintiff in her brief agrees that paragraph seven (7) thereof is not supported by the evidence and a new trial should be granted. We will not therefore discuss this point further. The only evidence to support paragraph four (4) is that plaintiff received a bill for $10.00 from Christian Hospital. Plaintiff’s doctor testified that her injury was not serious enough to require hospitalization, and no other evidence of hospitalization, at time of injury or in the future, appears in the record. We therefore hold it was prejudicially erroneous to submit paragraph No. four (4) on damages for hospitalization as not being supported by substantial evidence. Murphy v. S. S. Kresge Co., Mo.App., 205 S.W.2d 252; Kagan v. St. Louis Public Service Company, Mo.App., 334 S.W.2d 379, l. c. 381, 382; Fairley v. St. Louis Public Service Co., Mo.App., 352 S.W.2d 393.

Defendant Service Company in its briefed Point II charges error in the giving of Instruction No. 1, which was plaintiff’s main verdict directing instruction. After a careful consideration of this instruction we find that it did not assume the controverted fact that a hole or depression existed, as contended by defendant, but the instruction clearly required the jury to find that it existed. Next defendant claims there was no evidence to support the submission by said instruction requiring the jury to find that defendant Service Company “ * * * through its employees, knew or by the exercise of the highest degree of care could have known of the existence, nature, and location of the said unsafe condition before the said rear door of that bus opened; that said defendant failed to exercise the highest degree of care for the safety of Ruth Lanham in so stopping said bus in such position and in so opening said door at said time and place; that it was thereby negligent; * * The testimony of plaintiff’s daughter, Mrs. Hill, was that a hole of the size and character described by plaintiff existed at the same bus zone and near the fireplug in May, 1959. It is true that Mrs. Hill placed the hole on the left side of the fireplug and plaintiff on the right side thereof. The fact that grass was growing in and around the hole and almost hid a hole in May and apparently did so in September would indicate that the hole had existed for quite some time. There was, we find, substantial evidence from which the jury could find for plaintiff on this issue.

Defendant next complains that the instruction as written was a submission which relieved it of liability after plaintiff had safely alighted from the bus. The portion of Instruction No. 1 on this issue is as follows: “that while it remained stopped, Ruth Lanham got off of the bus, stepped north, stepped into the said hole or depression, and fell * * Plaintiff’s petition charges that plaintiff was injured “while plaintiff was alighting from the same (bus) * * The degree of care submitted as shown above in this instruction and her petition for damages all indicate that plaintiff’s theory of the case was based on the passenger-carrier relationship. After a careful examination of the evidence we do find, however, that said submission is not supported by the evidence and is confusing when considered with the court’s other instructions. The evidence given by plaintiff was as follows:

“Q. Now Mrs. Lanham, tell us then what happened as you were getting off the bus?
“A. Well, I made the one step out the door, down on the ground, my foot hit that hole and I fell, I fell to my knees.
⅜ ⅜ ⅜ * ⅜ ⅜
“Q. Now Mrs. Lanham, then as you stepped off the bus, was that your first step off the bus? A. It was.”

Clearly from this evidence the plaintiff when alighting from the bus stepped directly into the hole or depression. Other court instructions referred to this occurrence as “she alighted from such bus * * or “she was alighting from the bus * * The language used in this instruction is confusing and misleading to the jury and not supported by the evidence, and is therefore erroneous. Hart v. Midkiff, Mo., 321 S.W.2d 500; Quigley v. St. Louis Public Service Co., Mo., 201 S.W.2d 169.

Other points raised and briefed may and can be considered in the light of the evidence and remedied where necessary on retrial of the cause. For the errors noted the judgment is reversed and the cause remanded for a new trial. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DONELSON, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the trial court is accordingly reversed and the cause remanded for a new trial.

ANDERSON, P. J., WOLFE, J., and ELGIN T. FULLER, Special Judge, concur.


author: J. P. MORGAN, Special Commissioner.

text:
    Charles MITCHELL, a Minor, by his Next Friend, Duke Mitchell (Plaintiff) Appellant, v. Carl NEWSOM (Defendant) Respondent.
    No. 30941.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Walter Wehrle, Thomas W. Wehrle and Wehrle & Wehrle, Clayton, for appellant.
    John C. Shepherd, Paul V. Gilbert and Evans & Dixon, St. Louis, for respondent.
   J. P. MORGAN, Special Commissioner.

This action was brought by plaintiff, Charles Mitchell, an eight-year-old minor, by his father as next friend, to recover damages for personal injuries sustained when he was bitten by a dog owned by defendant, Carl Newsom. At the close of plaintiff’s case, the trial court sustained defendant’s motion for a directed verdict and instructed the jury to return a verdict for defendant. Upon his motion for a new trial being overruled, plaintiff has perfected this appeal.

The final question to be resolved is whether or not plaintiff made a submissible case for the jury, and such determination must depend on a review of the evidence in a light most favorable to plaintiff. Maxwell v. Fraze, Mo.App., 344 S.W.2d 262.

There is virtually no dispute as to the apparent circumstances under which plaintiff was injured. The evidence reveals he resided with his parents two houses from the home of defendant. That defendant’s son Tommy was of the same age as Charles, and they were close friends and continuous playmates. That some nine weeks prior to this unfortunate incident, defendant had purchased a sable-colored collie dog named Duke as a gift for his son Tommy. That Duke weighed approximately forty-five pounds, and although there was a doghouse and dog chain in the back yard, he was allowed to run loose and always played with the neighboring children. On the day of injury, May 26, 1956, Charles had gone to the back door of defendant’s home and inquired if Tommy could come out to play. While either waiting for Tommy or returning home, he saw Duke at the bottom of the back steps looking at a paper; and when he started to take the paper, was severely bitten on the lower lip by Duke.. That this injury required some twelve stitches and two later operations by a plastic surgeon to remove proud flesh that developed.

It has long been established, absent any statutory regulation, that no recovery ■can be had for injuries inflicted by a dog xmtil his actions are such that his keeper can be charged with knowing there was an inclination to commit the type of act causing the injury.

Any study of reported “dog bite cases” will reveal that there have been periodic reviews of the dog’s status in our society. Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, 13 A.L.R. 485; State ex rel. Kroger Co. v. Craig, Mo.App., 329 S.W.2d 804. In the latter case, pages 808-809, it was stated:

“ * * * in an action against the owner or harborer of a dog for injury inflicted by such animal, defendant’s scienter (i. e., actual or constructive knowledge) of the vicious or dangerous propensities of the dog became and still is (except where removed by statute) an essential element of the cause of action and a necessary prerequisite to recovery, * * *. As our Missouri courts have put it bluntly and succinctly in dog bite cases, ‘the gist of the action is the keeping of a vicious dog after knowledge of his vicious propensities.”

In the later case of Maxwell v. Fraze, supra, loc. cit. p. 264, of 344 S.W.2d, it was stated: “⅜ * * the injury complained of must result from the exercise of the dangerous propensity.”

The case of Dansker v. Gelb, Mo., 352 S.W.2d 12, involved a dog having a known tendency or desire to leap on adult strangers, and the court held, at page 16: “Whether the dog lunged or jumped at people out of anger or viciousness or out of playfulness is immaterial so long as the defendant had knowledge of the fact that the dog had a tendency through his actions to injure persons.”

Thus, without any effort toward over-simplication, it would appear that the instant case must turn on the answer to one question — Did Duke have a known tendency to bite?

All of the evidence offered, which in any way reflects the tendencies of this dog or the obligation of his owner to appreciate them, will be set out.

Plaintiff first offered portions of defendant’s deposition as alleged admissions against interest. After establishing the relationship of the parties, ownership of Duke and this particular incident, the following appears:

“Q. Was that the first time you know of that your dog ever bit anyone ?
“A. Yes sir.
“Q. Did he ever bark at any other boy or person?
“A. The only person he ever barked at was when the trash man came around.
“Q. He barked at the trash man?
“A. He barked at the trash man.
“Q. When he barked at the trash man, did he growl at him or just bark at him?
“A. Barked very violently. I don’t remember him growling.”

Plaintiff next called defendant’s wife as his witness and the following appears:

“Q. This was a collie dog?
“A. Yes sir.
“Q. Did you ever hear him bark at the * * * trash man ?
“A. Yes, he did.
“Q. He was at large in the yard and loose?
“A. He was on the back porch.
“Q. Loose — he wasn’t on a leash— he wasn’t tied up ?
“A. No sir.
“Q. You didn’t have a muzzle on him at that time?
“A. No sir.
“Q. You did have — Mr. Newsom did have a doghouse in the back yard, didn’t he?
“A. Yes sir.
“Q. Did he have a chain to the doghouse?
“A. As I recall, he did.
“Q. At any time prior to this incident, Mrs. Newsom, had you ever seen Duke bite or snap at any of the other children ?
“A. No.
“Q. And had he played with all the children during the entire time you had him?
“A. All the children loved him very much.
“Q. And you never had any experience with him injuring any children or grown-ups or anybody else?
“A. No.”

Her testimony further explained the presence of the paper which Charles had sought to take from Duke. It appears she had been away from home that morning caring for a sick relative; and at her request, defendant had dressed a chicken on the paper and placed the paper in a wastes basket which he later placed on the back porch while scrubbing the kitchen.

The plaintiff related how he had been bitten and that he and Tommy had previously had fun playing with the dog. His father testified as to the injury, and although he had seen Duke, did not relate anything significant as to his actions except that he ran loose.

The last witness called was plaintiff’smother who gave the following testimony with reference to her observation of a third and apparently older boy being with Duke-in defendant’s back yard:

“Q. Did you see this particular dog about a week before the dog bit Charlie ?
“A. I saw this dog jump at a boy in. the neighborhood and I am sure, I ami positive, that that dog snapped at that boy.
“Q. Where were you when you saw the dog about a week before?
“A. In the kitchen because we-could see right through to their yard in the kitchen.
“Q. Was that the same dog?
“A. The same dog.
“Q. That bit Charlie? What did5 you see it do ?
“A. I saw it just leap up toward the boy and I am positive that that dog snapped at that boy.”

Plaintiff contends that Duke’s admitted habit of barking violently at the trash man is evidence of his vicious propensities. Defendant, however, submits that barking is as natural a canine trait as the wagging of a dog’s tail, and quotes an old adage that “a barking dog does not bite”. The facts of the instant case are so inconsistent with the quote as to relegate it to curbstone use; but it is common knowledge, especially among non-dog owners, that dogs do bark. The fact it was done with regularity would only tend to confirm it to be a normal habit and all the less reason why an owner would be alerted by it. As stated in Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267, loc. cit. 272: “The ordinary habits, characteristics and instincts of dogs are matters of common knowledge. Courts take judicial notice of the well known habits of domestic animals.”

The evidence given by plaintiff’s mother shows that about a week before this injury, Duke had leaped and snapped at an older boy while both were in defendant’s yard. This observation was made from her kitchen window two doors away, and even though accepted as entirely accurate, fails to describe the circumstances under which it occurred with sufficient particularity as to give it any definite significance. The court in Maxwell v. Fraze, supra, discussed the necessity for looking at the circumstances surrounding previous acts of the dog when it said at page 265 of 344 S.W.2d: “The circumstances surrounding the occasion of the biting and its extent demonstrate whether the incident of the prior bite is sufficient evidence or some evidence of a vicious propensity of the dog to inflict injury.” In any event, there is no showing of actual knowledge by defendant, and this one isolated instance would not justify holding him with constructive knowledge of it.

Plaintiff also submits that the fact a doghouse and dog chain were in the back yard for Duke’s use is further evidence of defendant’s knowledge he had a vicious dog. He cites the case of Clinkenbeard v. Reinert, supra, where it was held a showing the dog was chained up all day and turned loose as a watchdog at night was evidence of the owner’s knowledge the dog was vicious. If plaintiff’s present theory is accepted, it would place the dog owner in an impossible position of not knowing whether to restrain or let his dog run loose. There is no obligation to restrain until the duty is evident as shown by all of the reported cases.

Plaintiff’s last contention is that he made a submissible case on the additional theory of defendant’s alleged negligence in allowing the paper to be on the porch at all, and that he should have anticipated the injury exactly as it did occur.

Having determined that Duke did not have a known tendency to bite, his presence at the back porch of his owner’s residence was the most proper place he could have been. Although one might conceive of actionable negligent acts by an owner in the care of his otherwise tame dog, this court should not list as one of them an owner allowing his dog at his own back door to eat chicken scraps from the paper upon which it was dressed.

For the reasons herein, plaintiff failed to make a submissible case, and your commissioner recommends that the judgment of the trial court be affirmed.

PER CURIAM.

The foregoing opinion by MORGAN, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the trial court is affirmed

ANDERSON, P. J., WOLFE, J., and GEORGE P. ADAMS, Special Judge, concur.