author: SHARPE, Justice.

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Sam POWELL et al., Appellees.
    No. 274.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 6, 1967.
    Rehearing Denied April 27, 1967.

      Ben A. Donnell of Keys, Russell, Watson & Seaman, Corpus Christi, for appellant.
    Larkin T. Thedford, Edna, for appellees.
   OPINION

SHARPE, Justice.

This appeal is from an order of the district court of Jackson County, Texas, overruling appellant’s plea of privilege to be sued in McLennan County, Texas. Appellees’ controverting affidavit relied upon subdivisions 23 and 28, Art. 1995, Vernon’s Ann.Civ.St., to sustain venue in Jackson County.

By nine points of error appellant contends that appellees failed to sustain their burden under either subdivision. Points 1-4 are applicable to subdivision 23 and points 5-9 to subdivision 28.

Appellees’ pleaded cause of action was that they had recovered judgment for damages in a prior Jackson County district court suit against Pete Soto, one of two defendants therein, in the amount of $5,200.00 based upon an automobile accident; that the other defendant was Jarrell Brown to whom appellant Insurance Company had issued a policy of liability and property damage insurance covering operation of his automobile; that the car driven by Soto was owned by Brown and was being driven with his consent; that Soto therefore was an insured under the policy; and that appellant was thus liable to appellees for the amount of the prior judgment.

The only evidence offered by appellees in addition to a certified copy of the judgment in the prior suit was the testimony of Mr. Sam DeMent, which in substance was as follows: He was the service agent for appellant with an office in Edna, Jackson County, Texas, and was such on May 30, 1965; that appellant Insurance Company is in the business of writing various kinds of Insurance, including automobile, farm liability, comprehensive personal liability, owners, landlords and tenants policies, general liability, mercantile, livestock, and crop hail insurance; that his company carried a policy of Insurance on Mr. Brown in Jackson County, Texas; that his company was involved in the prior case, being Cause No. 5082, styled Powell v. Brown and Soto, in connection with furnishing a defense to Brown.

Although appellees proved their judgment against Soto and that appellant had an agent in Jackson County, Texas, they failed to prove other essential elements of subdivisions 23 and 28, Art. 1995, V.A.C.S., which would make out a case for venue purposes under either of them. See Casares v. Pioneer Casualty Company, 366 S.W.2d 652 (Tex.Civ.App., Amarillo, 1963, n. w. h.), which is closely in point.

The provisions of subdivision 23, Article 1995, V.A.C.S., pertinent here are as follows:

“Suits against a private corporation, association, or joint stock company may be brought in a county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county; * * * ”

Appellees did not offer evidence that Soto was a permissive user of Brown’s automobile and, therefore, did not prove facts showing that they had a cause of action against appellant, a part of which arose in Jackson County. Casares v. Pioneer Casualty Company, supra; Furr’s, Inc. v. Behringer, 340 S.W.2d 125 (Tex.Civ.App., Eastland, 1960, n. w. h.); R. B. Smith, Inc. v. W. E. Merritt & Sons, 277 S.W.2d 801 (Tex.Civ.App., Beaumont, 1955, n. w. h.). Appellees did not attempt to prove that the principal office of appellant corporation was in Jackson County, Texas. Neither was there evidence as to the county in which the automobile accident occurred or of appellees’ residence at that time. Appel-lees’ petition alleged that the accident took place in Victoria County, Texas, which would negative venue in Jackson County. Appellees’ introduction of their petition into evidence is not sufficient without proof of its allegations to establish the essential venue facts in this case. Appellees failed to sustain venue in Jackson County under subdivision 23, Art. 1995, V.A.C.S. Appellant’s points 1-4 are sustained.

Subdivision 28 of Article 1995, V.A.C.S. provides as follows:

“Suits against fire, marine or inland insurance companies may also be commenced in any county in which the insured property was situated. Suits on policies may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health and accident insurance company, in the county where the home office of such company is located, or in the county where loss has occurred or where the policyholder or beneficiary instituting such suit resides.”

There is no evidence in this case that appellant is the kind of insurance company included in that subdivision of the Statute. Casares v. Pioneer Casualty Co., supra; Insured Lloyds v. Classic Motors, 296 S.W.2d 350 (Tex.Civ.App., Austin, 1956, n. w. h.); American Fidelity & Casualty Co. v. Jones Transfer & Storage Co., 46 S.W.2d 1054 (Tex.Civ.App., San Antonio, 1932, wr. dism.). In addition, there was a failure of proof that appellees were policy holders or beneficiaries. Jones v. Citizens-Casualty Company, 366 S.W.2d 265 (Tex.Civ.App., Ft. Worth, 1963, n. w. h.); Casares v. Pioneer Casualty Co., supra. Nor was there evidence of loss in Jackson County or as to the residence of appellees. Venue was not sustained in Jackson County under subdivision 28, Art. 1995, V.A.C.S-Appellant’s points 5-9 are sustained.

For the reasons stated, the judgment below is reversed and here rendered for appellant that this cause be transferred to McLennan County, Texas.

Reversed and rendered.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    J. O. BAILEY et ux., Appellants, v. James W. MARTIN, Appellee.
    No. 4608.
    Court of Civil Appeals of Texas. Waco.
    April 27, 1967.
    Rehearing Denied May 18, 1967.

      D. L. McClure, Jim Brannon, Houston, for appellants.
    Martin & Knox, Jack R. Martin, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs from a judgment for defendant, in an intersection collision case.

Plaintiffs Bailey and wife sued defendant Martin for damages resulting from a collision between plaintiffs’ automobile and •defendant’s automobile at the intersection •of Wakefield and Piney Woods Street in Houston.

Trial was to a jury which found defendant guilty of a number of acts of negligence proximately causing the collision; and further found that plaintiffs: 1) failed to keep a proper lookout; 2) failed to make proper application of brakes; and that both the foregoing were proximate causes of the collision. The jury fixed plaintiffs’ damage at $2,000.

The trial court entered judgment on the verdict for defendant.

Plaintiffs appeal on seven points, contending :

1) There is no evidence to support the findings: 1) that plaintiffs failed to keep a proper lookout; 2) that plaintiff failed to properly apply his brakes; and 3) that plaintiff’s failure to apply brakes proximately caused the collision; and that such findings are contrary to the overwhelming preponderance of the evidence.
2) The finding that plaintiffs were damaged only $2,000 is contrary to the overwhelming weight of the evidence.

The collision occurred on the morning of January 13, 1964. The plaintiffs were traveling east on Wakefield Street; defendant was traveling north on Piney Woods Street. The witness Officer Peace testified that plaintiff told him that “he was driving along and didn’t see (defendant’s) car until it was right on him;” and that plaintiff told him “he first saw defendant’s car just before it hit him.” Plaintiff testified: “* * * when you pass that house like I was * * * you can see almost halfway of the next block and I could see the car.”

Plaintiff testified that he slowed down for the intersection to IS miles per hour; “that he touched his brakes but didn’t stay on them to the extent of stopping”; that he thought defendant was going to stop at a stop sign (which the jury found was not there) ; that when he saw defendant wasn’t going to stop, “he got on the gas to try and get out of the way”; “that he never applied his brakes prior to the collision no more than slowing down to go through the intersection.”

We think the evidence ample to support the jury’s findings that plaintiff failed to keep a proper lookout; and failed to properly apply his brakes (and which was a proximate cause of the collision).

Since the jury found plaintiff was negligent, the finding on the damage issue was immaterial. Benton v. Walker Truck Line, Tex.Civ.App., 410 S.W.2d 822; Southern Pine Lbr. Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334.

All plaintiffs’ points are overruled.

Affirmed.


text:
    Emmit E. FISHER, Appellant, v. CARROUSEL MOTOR HOTEL, INC., et al., Appellees.
    No. 4626.
    Court of Civil Appeals of Texas. Waco.
    April 20, 1967.
    Rehearing Denied May 11, 1967.
    Ben G. Levy, Houston, for appellant.
    Vinson, Elkins, Weems & Searls, B. Jeff Crane, Jr., Raybourne Thompson, Jr., Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Fisher from a take-nothing judgment in a suit for damages for an alleged assault on plaintiff by defendant’s employee.

Plaintiff sued Carrousel Motor Hotel, Inc., the Brass Ring Club, Inc., and R. W. Flynn, alleging plaintiff was invited to dinner by third parties at the Brass Ring Club, operated by defendant Carrousel; that plaintiff was standing in the serving line holding his dinner plate when “plaintiff was assaulted by defendant Flynn, Manager of said Brass Ring Club, who walked over to plaintiff, seized his dinner plate, and violently tore it out of his hand. At the same time, Flynn shouted in a loud and offensive manner that plaintiff, a negro, could not be served there.” Plaintiff alleged as a result of Flynn’s conduct, “plaintiff suffered great mental anguish and humiliation.”

Defendant Carrousel answered by general denial; defendant Flynn was deceased at time of trial; and the trial proceeded against Carrousel and the Brass Ring.

Trial was to a jury which found:

1) Flynn forcibly dispossessed plaintiff of his dinner plate.
2) Plaintiff was humiliated and subjected to indignity by the actions of Flynn in dispossessing plaintiff of his dinner plate.
3) Flynn shouted in a loud and offensive manner that plaintiff could not be served at the Brass Ring Club.
4) Plaintiff was humiliated and subjected to indignity by actions of Flynn in so shouting.
5) Flynn was acting within course and scope of his employment by Carrousel Motor Hotel.
6) $400 will compensate plaintiff for the humiliation and indignity he suffered caused by Flynn’s conduct.
7) Flynn acted maliciously with wanton disregard of plaintiff’s rights and feelings.
8) Carrousel Motor Hotel did not authorize or approve the conduct of Flynn.
9) $500 will compensate plaintiff for the malicious act and wanton disregard of plaintiff’s feelings and rights committed by Flynn.

Plaintiff moved for judgment on the verdict; and defendant moved for judgment that plaintiff take nothing, asserting that as a matter of law the acts complained of by plaintiff, committed by Flynn, do not constitute an assault or other actionable cause.

The trial court overruled plaintiff’s motion for judgment; and granted defendant’s motion N.O.V. that plaintiff take nothing.

Plaintiff appeals, contending the trial court erred:

1) In denying plaintiff’s motion for judgment ; and
2) In granting defendant’s motion for judgment non obstante.

The record reflects plaintiff came into the Brass Ring with others and picked up a plate at the serving line. Flynn approached plaintiff and took the plate from his hand and told him he could not be served. Plaintiff testified that Flynn did not physically touch him. There is no evidence plaintiff ever suffered any fear or apprehension, or that he suffered any resulting physical injury. Plaintiff testified he was highly embarrassed and humiliated.

Article 1138 Vernon’s Ann.Texas Penal Code provides:

“The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, is an assault and battery. Any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability to commit a battery, is an assault.”

Under the undisputed factual situation, we think no assault was committed by Flynn on plaintiff. Texas Bus Lines v. Anderson, CCA (n. r. e.), 233 S.W.2d 961.

Mental anguish and mental suffering without proof of resulting physical injury will not support a recovery of damages. Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81.

Absence an assault or resulting physical injury, plaintiff cannot recover for the embarrassment and humiliation suffered as a result of Flynn’s conduct.

We think Flynn’s conduct did not constitute an assault, and since no resulting physical injuries were alleged or proved, plaintiff has proven no cause of action.

The judgment of the trial court is correct. Plaintiff’s points are overruled. Affirmed.


author: EAGER, Judge.

text:
    Gerald Dee HALEY, Appellant, v. BYERS TRANSPORTATION COMPANY, Inc., and Kenneth G. Deem, Respondents.
    No. 51949.
    Supreme Court of Missouri, Division No. 2.
    May 8, 1967.

      Thaine Q. Blumer, Blumer & Wright, Kansas City, for plaintiff-appellant.
    Jack G. Beamer, McKenzie, Williams, Merrick, Beamer & Stubbs, Edward J. Houlehan, Houlehan & Waterman, Kansas City, for defendants-respondents.
   EAGER, Judge.

This is a second appeal. The opinion on the first appeal appears at 394 S.W.2d 412, and many of the facts are stated there. That appeal involved primarily a construction of the jury’s verdicts; the judgment for plaintiff on his petition was reversed and the cause remanded with directions. The present appeal involves specific claims of error during the same trial, after remand and the entry of a judgment for defendants. Plaintiff’s prayer for damages was for $500,000.

The case arose from separate, but related, collisions between plaintiff’s car and two tractor trailers. We shall state the facts briefly, referring to others in the body of the opinion as may be necessary. Plaintiff was driving east on old Highway 40 from Kansas City to the Whiteman Air Force Base at about 1:00 a.m. on August 24, 1961. He was an Airman First Class stationed at that base. The collisions occurred at a spot nearly opposite a truck stop, service station and restaurant on the south side of the road known as “Hillcrest Station” and also as “Fortyville”; this was approximately three and one-half miles east of Odessa. The road was 24.5 feet wide, of asphaltic concrete; the shoulder on the north side was narrow, since excavations had been made for Interstate 70 and there was a substantial “drop off” on that side.

Plaintiff’s car struck the right rear dual wheels of the trailer of a Southwestern Freight Lines rig driven by Verlin Barnett, which was turning into the easternmost driveway of the station; the tractor was then in the driveway but the trailer was largely, if not entirely, blocking the south or eastbound lane of the road. The tractor driver’s turn signals had operated continuously for 120-130 feet before he started the turn; the tractor and trailer were fully lighted with the various lights required on such equipment. There was evidence that the lights on the tractor (including the turn lights) could be seen for a distance of 500 feet to the west, although that collision occurred about 290 feet east of a crest. The station, generally speaking, occupied the crest of a rounded elevation, and there was a rather substantial decline to the east. There were lights at or around the station which lighted the area to some extent. Plaintiff’s car left no skidmarks; the only estimate of its speed came from Barnett, the driver of the tractor unit already described. He testified that, from a brief glimpse, plaintiff appeared to be traveling at 80 miles an hour or more. The impact broke a tie rod on the dual wheels and caused them to swing together. The right front corner of plaintiff’s car was sheared off in this collision.

During the trial of a prior suit against both freight lines, Southwestern paid plaintiff $80,000 in settlement and received releases or covenants not to sue. That suit was dismissed without prejudice as to Byers and its driver, and later the present suit was instituted.

Another tractor trailer was proceeding west behind Barnett’s; this was driven by the defendant Deem for Byers Transportation Company, Inc., and the trailer was loaded with sheet steel. When plaintiff’s car sustained its first impact its momentum was largely stopped, but it swung over to the left and continued to move down the road, more or less sideways, at approximately ten miles an hour until it collided with the Byers’ tractor trailer unit. The left front corner of the tractor hit the left side of plaintiff’s car behind the driver, and the right front wheel of the tractor ended up in the back seat of the car. There was much controversy as to the exact point of impact on the road but this is largely immaterial to our present issues. It occurred at least 27.6 feet east of the point of the first impact, and probably considerably farther. Deem estimated that his tractor pushed the car back about 25 feet. Obviously, both the car and tractor were still moving, and concededly the car was pushed some distance westward. There was also much dispute concerning the speed of the tractor; evidence offered from the transcript of the former trial, and more or less confirmed at the last trial, indicated that it was probably traveling at 35-40 miles an hour. Deem, the driver, insisted that he had at all times maintained the statutory interval of 300 feet between his unit and that of Barnett. There was highly divergent testimony concerning the required stopping distances of defendants’ tractor trailer.

The plaintiff testified, but he had no recollection of the collisions. The case was submitted on the alleged primary negligence of Deem in following the lead vehicle at a distance of less than 300 feet and in failing to slow, and on humanitarian negligence in failing to stop or slacken speed. Both defendants pleaded and submitted the issue of contributory negligence and defendant Deem, in a counterclaim, also submitted plaintiff’s negligence; that negligence consisted, supposedly, of a failure to keep a lookout, excessive speed, and the failure to slacken and swerve. The jury first brought in a verdict in favor of plaintiff but assessed his damages at “zero dollars” ; it found for the plaintiff on Deem’s counterclaim. The jury had been instructed that the sum of $80,000 should be deducted from any amount of damages which it found, and that if such sum equalled or exceeded the amount so found, its verdict must be for the defendants. Upon objection made to the verdict the jury was sent back to reconsider, and it returned with a verdict for plaintiff assessing his damages at $20,000. Judgment was entered for plaintiff on this latter verdict and for plaintiff on Deem’s counterclaim; all parties appealed, but plaintiff thereafter dismissed his appeal. This Court held that the first verdict was a valid and binding verdict for defendants on plaintiff’s petition and ordered judgment entered thereon, although the jury had not strictly followed the instructions; the Court held further that the jury had obviously found that defendants were negligent, that it had done so before reaching the question of damages, but that it had then found that plaintiff’s damages did not exceed the $80,000 previously paid; that, thus considered, the verdict was not inconsistent or self-contradictory. After judgment was entered in the trial court on our mandate, plaintiff filed a motion for a new trial as to damages only or, in the alternative, on all issues ; this motion was overruled and plaintiff appealed. He does not raise here the contention that the verdict is inadequate but relies upon three specific points of error. These are: (1) error in the exclusion of movie films taken of plaintiff in his home showing his sundry activities; (2) the exclusion of the testimony of an Air Force financial officer to show the trend of Air Force pay for the past 15 years and the probable trend of plaintiff’s compensation in the future; and (3) supposed error in two instructions submitting the issue of plaintiff’s negligence.

There is and can be no doubt that plaintiff was most seriously injured. Despite long hospitalization he has since been paralyzed from the chest downward, and the medical evidence all indicated that this com dition was permanent. As we read the record, defendants did not controvert this fact, and indeed they put on no medical evidence at all. They merely sought to show by the cross-examination of one or more of plaintiff’s medical witnesses that some such persons are able to accomplish sufficient rehabilitation to enable them to engage in gainful occupations, and that this depends largely upon the individual’s incentive.

The first point concerns the exclusion of six reels of 16 mm. movie films taken in plaintiff’s home, undoubtedly for the purpose of the trial. No representative of the defendants was present. The films were viewed by the trial court out of the presence of the jury, and the Judges of this Court have viewed them in toto. The first difficulty arises out of the failure of the transcript to show the colloquy and arguments had and made out of the presence of the jury when the films were shown, and the objections then made. However, it was conceded here in oral argument that an objection was then made by the defendants to the introduction of the films; when the parties and the Court came back on the record the Court announced that the objection to these exhibits had been sustained. Counsel for plaintiff then stated, in substance, that he wished to make an offer of proof, and the Court replied that the exhibits had been offered and that no further offer was necessary. This is understandable since the Court knew precisely what was being offered and no further explanation was necessary, and in fact the Court stated that “the exhibit speaks for itself.” However, plaintiff’s counsel was then allowed to state fully his reasons for the supposed materiality and necessity, and this offer was refused. We cannot presume wrong action on the part of the trial court in connection with such a matter, Nash v. Plaza Electric, Inc., Mo., 363 S.W.2d 637, and the whole context fairly .indicates that specific objections were made and sustained. Everyone concerned knew precisely what was being offered in evidence and the reasons for and against the offer. We pass to a discussion of the merits of the ruling.

The films showed plaintiff engaged in various activities in his home, frequently with the aid of his wife; these included the difficult and laborious acts of getting from his bed into a wheelchair, getting out of it, getting into the “standalone,” an appliance which supported him and permitted him to move in an upright position, the moving of his legs manually one at a time in order to accomplish bodily movements, this being done both with and without assistance, the taking of weight lifting exercises, and raising himself from certain places and positions by means of an overhead bar. Substantially all of these activities were described in evidence without objection. Plaintiff’s counsel did not seek to produce and offer any of this equipment as exhibits, although much of it was readily movable. We conclude that the films were self-serving, being based solely upon plaintiff’s actions (rather than his words), and that they would have constituted in reality testimony from plaintiff which was not subject to cross-examination. We feel, as did the trial court, that the very obvious impact of these films would have been to create a sympathy for the plaintiff out of proportion to the real relevancy of the evidence. If more detail was desired, it should have been accomplished by the production of the equipment or more detailed descriptions. One film, showing the plaintiff being manipulated in various positions in a “Stryker Frame” while in an Illinois hospital, was shown to the jury over defendants’ objections; it is stated without contradiction that plaintiff was present before the jury in a wheelchair for five days. The trial court did not abuse its discretion in excluding this evidence. See generally Taylor v. Kansas City Southern Ry. Co., 364 Mo. 693, 266 S.W.2d 732. Counsel seek to distinguish that case on the ground that the demonstration there was unnecessary because the operation (lami-nectomy) had admittedly been performed, while here there was a disputed issue as to plaintiff’s condition. We do not so read the present transcript, as we have already indicated. In Kickham v. Carter, Mo., 314 S.W.2d 902, the Court affirmed the granting of a new trial because of the improper and prejudicial showing of photographs and a chart of a laminectomy, along with a minute description. In the latter case the Court said: “Demonstrations which dramatize plaintiff’s injuries in a manner calculated to inflame the minds of the jury are prejudicial and improper.” In Hampton v. Rautenstrauch, Mo., 338 S.W.2d 105, 83 A.L.R.2d 1260, relied upon by plaintiff, the court upheld the admission in evidence, without demonstration of use, of certain appliances used by plaintiff in connection with her treatment. We do not have that question presented here. See also Glowacki v. Holste, Mo., 295 S.W.2d 135. Plaintiff cites several cases as indicating that error in the exclusion of evidence affecting the amount of damages is presumed to be prejudicial, and that such evidence “might” also have affected the result on the merits. We are not concerned with those cases, for we hold that there was no error in the exclusion of the films. The trial court was vested with a wide discretion and it was not abused. We need not consider plaintiff’s discussion of the amounts of the verdicts in cases of supposedly similar injuries. Plaintiff does not raise the question of inadequacy. Under these circumstances it is immaterial whether or not the admission of the films might or would have affected the verdict; there being no error, the jury was the final arbiter of the amount ■of plaintiff’s damages.

The next point made is the supposed error in excluding certain proposed testimony from Robert L. Faucette, Superintendent of Accounting and Finance at the Richards-Gebaur Air Force Base. The witness testified that he dealt with the pay of all air force personnel (presumably in his area) and that he had brought certain records with him. He knew nothing of the plaintiff or of plaintiff’s proficiency or service, nor had he brought any of plaintiff’s records. He further testified: that the base pay in February, 1961, of an airman first class with plaintiff’s length of service was $165, with subsistence pay of $2.57 per day, $2.34 per day for quarters if no dependents (both applicable only if living off the base), $30 per month for proficiency pay if earned, and a clothing allowance of $6.00 per month; that on October 1, 1963, that base pay was raised to $205 per month; that the maximum base pay for an airman first class would be $215. When he was asked to state from his records what the “trend” in Air Force pay had been over the last 10 to 15 years, an objection was made that such evidence would be speculative and this was sustained. A long colloquy ensued demonstrating that counsel wished to show that a trend of inflation had affected Air Force pay in general and then to use that testimony as a basis for expert testimony regarding the prospective pay of plaintiff in the future, until retirement; also, that there was a likelihood of further increases in plaintiff’s earnings. The Court considered this as an offer of proof and denied it, stating also that counsel might argue the matter of inflation to the jury. Counsel for plaintiff then asked the witness concerning his experience in determining the “general promotion rate of airmen”; objection was made that the matter was speculative, that the test was the individual’s proficiency and qualifications, and that the evidence was of no value unless the witness had some knowledge of plaintiff. That objection was sustained. Counsel was permitted to show by the witness the various grades or ranks, past and future, available to plaintiff as an enlisted man. Objection was sustained to a further question as to plaintiff’s “likelihood of promotion” after advancing to his present grade; the objection was that the evidence would be speculative. A similar objection was sustained to a question asking about the probability of plaintiff’s earning additional proficiency pay in electronics.

Counsel insist that all such evidence was improperly excluded and that this was prejudicial because it bore directly upon the loss of future earnings; also, that the rejection of this evidence compounded the error supposedly made in the rejection of the movie films. The issue is relatively simple. Plaintiff was allowed to show his actual pay and allowances, and what they would have been up to the date of trial had he remained in the service; he was also allowed to testify personally that he had passed a test and had qualified for proficiency pay in electronics and that he was scheduled for an immediate transfer and for further training in electronics. Anything further would rest in pure speculation, for no one can intelligently forecast the effects of the forces of inflation or the actions of Congress, nor even whether plaintiff would remain in the Air Force. Indeed, he admitted that he expected to look around after his transfer to California to see what he might find in private employment. The value of a loss of future earnings may not rest upon speculation. Seymour v. House, Mo., 305 S.W.2d 1; Honeycutt v. Wabash R. Co., Mo.App., 313 S.W.2d 214 [subsequent appeal Mo., 337 S.W.2d 50]; Burns v. Kansas City Public Service Co., Mo., 273 S.W.2d 184. It seems clear that several speculative elements were involved in the proposed testimony. There was no error in the rulings.

The last point assigns error in giving instructions numbered 14 and 16, the former on behalf of both defendants and the latter on behalf of Deem on his counterclaim. Both instructions submitted the issue of plaintiff’s negligence; the two are very similar, but we shall confine our consideration to No. 14, because the counterclaim is in nowise involved on this appeal. The trial court initially entered a judgment for plaintiff on Deem’s counterclaim, and this was reaffirmed in the judgment entered later after receipt of our mandate. We do not consider plaintiff to be aggrieved by an instruction given solely upon an issue which was found in his favor. Its supposed error is only assigned as lending additional emphasis to Instruction No. 14. This case was tried prior to the effective date of the Missouri Approved Instructions, hence the present complications.

The instruction told the jury, in essence, that: if plaintiff was traveling at a speed in excess of 65 miles an hour, if the Southwestern unit was being driven across the eastbound lane into the station driveway at 20 miles an hour, if all lights on that unit were burning, and the locale was brightly lighted by the lights of the service station, if the tractor trailer or its lights were visible for at least 400 feet to the west, and if “in the exercise of the highest degree of care the plaintiff, by keeping a lookout ahead and laterally under the circumstances described in evidence, saw or should have seen the Southwest Freight Lines tractor-trailer unit in the act of crossing the eastbound lane of the highway into the driveway and that the plaintiff could have slackened the speed of his automobile and could have swerved his automobile and avoided the collisions mentioned in evidence, which he failed to do, if you so find, * * and that in so doing plaintiff was negligent, etc., then plaintiff could not recover.

The complaint made of the instruction is that it omits the requirement of a finding that plaintiff, at the time, knew or should have known that there was “danger of a collision,” in time to have taken preventive action. For two independent reasons the point may not be allowed. Counsel cite Miller v. Greis, Mo., 396 S.W.2d 642. That case involved an intersectional collision with the usual highly contradictory testimony. The Court said that the instruction given there assumed a duty on the part of defendant to slow, slacken or warn, whereas no such duty existed upon the “bare framework of facts” hypothesized; or, in other words, that the fads hypothesized there did not in themselves raise such a duty, and that a finding of an apparent danger of collision was therefore required. When that instruction is examined it is seen that it did not hypothesize facts which would, in themselves, show an imminent danger of collision. The other cases cited, Stakelback v. Neff, Mo.App., 13 S.W.2d 575; Mullen v. St. Louis Public Service Co., Mo., 389 S.W.2d 838, and Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, add nothing further to plaintiff’s contentions on our facts and the instruction presented. In effect, those cases merely required findings that plaintiff had actual or constructive knowledge of danger. In our view, Instruction No. 14 in our case does so. It required findings: that the tractor trailer was crossing plaintiff’s lane at 20 miles an hour; that the area was well lighted and the tractor and trailer were fully lighted; that plaintiff was traveling at a speed in excess of 65 miles an hour; that the tractor trailer or its lights were visible for a distance of at least 400 feet to the west (from which direction plaintiff was approaching) and that plaintiff, by keeping a lookout, saw or should have seen the tractor trailer and that his failure to act under those circumstances constituted negligence and caused or contributed to the collision. Whether plaintiff actually saw the danger in time to act, we do not know, nor is that determinative; but we are convinced that the facts hypothesized were entirely sufficient to show the existence of a very present and imminent danger to any reasonable person who, in the exercise of the highest degree of care, was keeping a proper lookout; in other words, these facts, if found, required that such a person should have seen an existing and imminent danger in time to act. The instruction here is not subject to the objections sustained in the cases cited. We hold that the giving of it was not error. For a wholly independent reason the giving of that instruction could not be reversible here. We have already indicated that the jury found for plaintiff on his petition on the question of liability. That being true, it would hardly be possible for an instruction on contributory negligence to constitute reversible error. Counsel argue that the instruction might have influenced the jury on the issue of damages, in that the “error” misled or confused the jury; we have held that there was no error. The contention is entirely too speculative and we do not pursue it further.

We do not reach the contention of defendants that plaintiff failed to make a submissible case on either primary negligence or humanitarian negligence.

The judgment is affirmed.

All of the Judges concur.


author: WILLIAM M. KIMBERLIN, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Frank KLIPSCH, Jr., et al., on Exceptions of Maroon Brothers, Inc., a Corporation, Defendant-Respondent.
    No. 51994.
    Supreme Court of Missouri, Division No. 1.
    May 8, 1967.

      Robert L. Hyder, Jefferson City, C. J. McEnery, Jr., Kirkwood, for plaintiff-appellant.
    Louis A. Robertson, Robertson, DeVoto & Wieland, St. Louis, William L. Mason, Jr., Galena, for respondent.
   WILLIAM M. KIMBERLIN, Special Judge.

This is a condemnation proceeding brought by the State of Missouri at the relation of the State Highway Commission of Missouri to acquire a right-of-way for the construction and maintenance of Interstate Route 55 in St. Louis County, Missouri. The parties will be referred to as plaintiff and defendant. A tract of defendant’s land was condemned for the right-of-way. The commissioners appointed by the court awarded the defendant the sum of $66,968 which sum was withdrawn from the registry of the court by the defendant. Both plaintiff and defendant filed exceptions to the award. At the trial witnesses for the defendant testified his damages were in varying amounts — i. e.: $160,000 — $140,000— $121,000 and $111,165.12. The plaintiff’s witnesses testified defendant’s damages were in the amounts of $37,300 to $39,800. The jury returned a verdict of $50,000 and judgment was entered thereon allowing the plaintiff a recovery in the amount of $16,968 with interest thereon at six per cent from the date the defendant withdrew from the court the award of the commissioners. This latter figure represents the amount the commissioners’ award was in excess of the jury’s verdict. Because of the amount in dispute we have jurisdiction.

This same cause was previously tried and on appeal in this court was reversed and remanded for error in the improper admission of certain evidence. State ex rel. State Highway Commission v. Klipsch, Jr., et al., Mo.Sup., 392 S.W.2d 287. The defendant, on November 4, 1965 filed a motion for new trial, coupled with the affidavits of certain jurors. These affidavits concerned conduct of certain jurors during the trial recesses and during their deliberations. The motion for new trial assigned ten grounds as a basis for a new trial. Assignment number one was that the verdict is against the weight of the evidence and assignment number two was that the verdict is inadequate. For the purpose of this opinion it is not necessary to set forth the other assignments of error.

Thereafter and on January 27, 1966, the following order was entered by the trial court:

“Motion of defendant for a new trial heretofore filed, argued and submitted is now by the court, after a further examination of the record and the law involved, sustained.
(Signed) D. L. C. Jones, Judge.”

Thereafter, on January 28, 1966, the following order was entered by the court:

“On Court’s own motion, entry of 26 (sic) January 1966 corrected by inserting the words ‘on all grounds, pursuant to Supreme Court Rule 78.01’ following the last word, to-wit: ‘sustained.’
(Signed) D. L. C. Jones, Judge.”

Plaintiff appealed from the order granting the defendant a new trial. The plaintiff filed a statement with this court refusing to file the first brief on appeal unless ordered to do so. The reason stated being that the new trial order did riot specify the ground or grounds upon which the new trial was granted, since certain grounds in said motion preserved nothing for review and further that one of the grounds in the motion for a new trial had heretofore been ruled adversely to the defendant on the first appeal. Subsequently, and on the 10th day of October, 1966, this court ordered the plaintiff to prepare the first brief on appeal.

The plaintiff has briefed and argued six propositions challenging the validity of the trial court’s order; however for the purpose of this opinion it is only necessary that we set forth one of them.

Plaintiff contends the order in its form does not indicate that the new trial was granted on any discretionary grounds contained in defendant’s motion because the court’s order purports to sustain said motion on all grounds stated in the motion (see Civil Rule 83.06(c)); that said motion contains an allegation of error previously held by this court on the first appeal to be proper; that the motion stated an allegation of error which preserved nothing for review. Therefore the trial court’s order is against the law of the case and is not an exercise of discretion, or, if an exercise of discretion, it is an abuse of discretion.

Section 510.330, V.A.M.S., and Civil Rule 78.01, V.A.M.R., provide in part as follows:

“ * * * Only one new trial shall be allowed on the ground that the verdict is against the weight of the evidence. Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.”

The trial Court’s order stated the motion for new trial was sustained “on all grounds.” One of the grounds in the motion was that the verdict is against the weight of the evidence. A second ground was the verdict is inadequate.

This court in the very recent case of Ray v. Bartolotta, Mo.Sup., 408 S.W.2d 838, has ruled that these two grounds of error are equivalent in legal intendment. In the course of the opinion this court stated at 1. c. 839:

“The motion for new trial, while apparently setting forth two reasons, in legal intendment and effect asserted only one reason why the court should grant a new trial, namely that the verdict as to amount of damages was against the weight of the evidence. Paragraph 1 so alleged in terms. Paragraph 2 so alleged by the use of equivalent words. An allegation that the amount of damages awarded by a verdict is inadequate is the equivalent of an allegation that the verdict as to damages is against the weight of the evidence. We reach the conclusion on analogy to the rule that the action of a court in granting a new trial on the ground of inadequacy of the verdict is the equivalent of granting a new trial on the ground that the verdict is against the weight of the evidence.”

It is a well established principle that a trial court has broad discretionary power to grant one new trial on the ground that the verdict is against the weight of the evidence. Robinson v. Wampler, Mo.Sup., 389 S.W.2d 757; City of St. Charles v. De Sherlia, Mo.App., 308 S.W.2d 456. This ruling will not be disturbed or interfered with by an appellate court as a matter of policy if there is substantial evidence to support the trial court’s action unless there has been an abuse of discretion. Ray v. Bartolotta, supra, Gibson v. Newhouse, Mo.Sup., 402 S.W.2d 324 and State ex rel. State Highway Commission v. Belvidere Development Company, Mo.Sup., 315 S.W.2d 781. It is the province of this court to review the record to ascertain .only if there was substantial evidence to warrant a verdict for the party in whose behalf the motion was sustained. Andres v. Brown, Mo.Sup., 300 S.W.2d 800; Dawson v. Scherff, Mo.Sup., 281 S.W.2d 825.

Plaintiff’s chief attack on this new trial order is that it does not indicate that it was granted on any of the discretionary grounds of the motion because it is sustained on “all grounds.” It is further argued by plaintiff that the motion contains an allegation of error ruled proper by this court in the previous trial, therefore, the order is against the law, and an abuse of discretion.

We are unable to agree with that reasoning. Webster defines the word “all” as “each one of,” and so it is this court’s interpretation of the order that it was sustained on each of the assigned grounds of error. Plaintiff refers to the trial court’s ruling as a “shotgun” order. This may be true in a sense, but that does not make the order any less effective. Suppose the motion would have contained only one assignment of error to-wit: that the verdict was against the weight of the evidence, and the trial court’s order would have read the same as it did in the instant case. Would the fact the order used the word “all” have resulted in a denial of the right of the defendant to a new trial ? We think not. The case of Benton v. St. Louis San Francisco Railway Co., Mo.Sup., 182 S.W.2d 61 cited by the plaintiff does not support its position. This was a personal injury action in which judgment was for the defendant in the trial court. A new trial was granted the plaintiff. The opinion does not set forth the various assignments of error, but in any event the court held the plaintiff did not make a submissible case and ordered the judgment for the defendant reinstated. Therefore the verdict could not have been against the weight of the evidence or inadequate.

It is our view that the fact the trial court’s ruling might not have been proper on each and every assigned ground should not render the order ineffectual and deny the defendant a new trial, when in truth and in fact it was correct on at least two of the assigned grounds. It is elemental in our jurisprudence that a single ground of error, if prejudicial, is sufficient to warrant granting a new trial. Hence, the plaintiff’s contentions that one of the assignments of error had been ruled adversely to the defendant on the first appeal and that one of the assignments preserved nothing for review are unavailing to it.

The order stated the motion was sustained on “all grounds.” The first assignment in the motion was that the verdict is against the weight of the evidence. The second was that the verdict is inadequate. This is a sufficient specification of the grounds for sustention under the statute and the Rule of Civil Procedure, supra. The order being a discretionary one it can only be disturbed if there has been an abuse of discretion. There was evidence adduced at the trial on behalf of the defendant to the effect defendant’s damages were as high as $160,000. There was substantial evidence in the trial court to support a higher verdict for the defendant, therefore, there was no abuse of discretion.

The order of the trial court sustaining the motion for new trial is affirmed.

PER CURIAM:

The foregoing opinion by KIMBERLIN, Special Judge, is adopted as the opinion of the Court.

All concur.


author: DOERNER, Commissioner.

text:
    ST. LOUIS FLEXICORE, INC., a Corporation, Plaintiff-Respondent, v. Mack B. LINTZENICH and Caryl Anne Lintzenich, d/b/a M & B Construction Company, Defendant and Home Federal Savings & Loan Association of Overland, a Corporation, Defendant-Appellant.
    No. 32470.
    St. Louis Court of Appeals. Missouri.
    April 18, 1967.

      Morton R. Newman, St. Louis, for defendant-appellant.
    Edwards & Schiff, Martin Schiff, Jr., Clayton, for plaintiff-respondent.
   DOERNER, Commissioner.

In this suit to establish a mechanic’s lien the decisive question presented is whether plaintiff’s lien should be adjudged superior or subordinate to two deeds of trust held by defendant Home Federal Savings and Loan Association of Overland. The co-defendants, Mack B. Lintzenich and Caryl Anne Lintzenich, his wife, who had been the owners of the real estate involved and who under the name of the M & B Construction Company were constructing the improvements, did not appear and were declared in default. The chancellor found that the Lintzenichs were indebted to plaintiff in the sum of $9918.98, including interest, for labor and materials, that plaintiff’s lien was superior to the deeds of trust held by defendant Home Federal, and entered judgment accordingly. Following the overruling of its post-trial motions defendant Home Federal (hereafter referred to as defendant) appealed.

The salient facts are mainly a matter of record and are not in dispute. The Lintzenichs were the owners of a parcel of real estate situated on Walton Road in St. Louis County, and proposed to build thereon what was named the Charlack Apartments. Using the fictitious name, M & B Construction Company, under which they did business as the general contractor of the project, they entered into an agreement with plaintiff on July 19, 1960 by which plaintiff agreed to furnish and install concrete floor and roof slabs, for which the Lintzenichs agreed to pay plaintiff $23,997. Plaintiff’s first delivery of the slabs was on August 17, 1960, and its last work under the contract occurred on December IS, 1961. In response to plaintiff’s first bill, the Lintzenichs paid plaintiff $3500 on account about 90 days after its first delivery. Subsequently, on December 20, 1960, the Lintzenichs executed a note for $115,000 to the defendant to finance the construction of the apartment building, together with a deed of trust on their Walton Road property to secure the loan. At the same time the Lintzenichs executed an instrument in which they approved various expenses incurred in connection with the making of the loan, and by which they directed the defendant to disburse upon their orders the balance of $110,454.55 due them. In addition, Lintzenich supplied defendant with a statement containing a breakdown of the items of construction costs, including $23,970 for concrete floor and roof slabs, and the defendant set up a ledger control sheet showing that that sum was allocated to the plaintiff for such item.

Pursuant to a voucher signed by Lint-zenich, defendant paid plaintiff $4500 on February 9, 1961 out of the construction account. Thereafter, about April 1, 1961, Lintzenich.telephoned Charles C. Doe, plaintiff’s vice-president, and stated that he was in the process of arranging for additional financing at the Creve Coeur Bank, and that it would be very helpful to him if plaintiff would accept a check post-dated May 31, 1961. Lintzenich assured Doe that the check would be good when presented to the bank on that day. Plaintiff had done business with Lintzenich on other jobs over a period of 12 to 13 months, and Doe agreed to and did accept the check of M & B Construction Company for $8010.34, dated May 31, 1961, drawn on the Creve Coeur Bank. Later, on April 11, 1961, Lintzenich gave plaintiff a voucher directing defendant to pay plaintiff $7866.68. Doe presented it to defendant, was requested to sign a waiver of lien showing that that amount was final and full payment, did so, and defendant paid plaintiff that sum on April 12, 1961. Doe testified that he knew that he was signing a waiver and release of any mechanic’s lien plaintiff might have, but that he did so in reliance on Lintzenich’s assurance that the postdated check would be paid.

Shortly before May 31, 1961, Lintzenich telephoned Doe and informed him that there were insufficient funds in the Creve Coeur Bank to cover the post-dated check, a fact which was confirmed when plaintiff presented the check to the bank for payment on that date and payment was refused. About the same time defendant became aware that approximately $8,000 remained due plaintiff on its contract. According to defendant’s records, there was over $16,000 in the construction account at that time. The same record shows that the funds in the construction account were exhausted on September 20, 1961, and that thereafter defendant advanced money out of its own treasury, which reached the sum of $55,586.28 on March 3, 1962, according to the final entry on the construction record. However, to obtain security for such advancements defendant obtained another deed of trust from the Lintzenichs, dated September 12, 1961, covering both the Walton Road and other real estate owned by them.

Plaintiff commenced the statutory procedure for perfecting its mechanic’s lien on March 9, 1962, which culminated in the institution of this suit on March 22, 1962. On the same day it filed a lis pendens notice with the Recorder of Deeds of St. Louis County. Shortly thereafter, on March 27, 1962, defendant foreclosed on the Walton Road property here involved, as well as on three or four other pieces of real estate owned by the Lintzenichs, and bought in the Walton Road property for $118,000. Its hid for the other Lintzenich real estate was not stated. Defendant subsequently sold the Walton Road property in June, 1962, but no testimony or evidence was offered by defendant as to the sales price. Instead, defendant inquired of its witness, Ralph W. Fassel, its executive vice-president, the factors that were taken into consideration in determining the selling price, and when an objection to the question was sustained, offered his testimony pursuant to Civil Rule 73.01(a), V.A.M.R. So received, Fassel’s testimony was that there was taken into consideration the original amount of the deed of trust, costs incurred in administering the deed of trust, the amount of the overdraft, any money expended in completing the property, and the costs of foreclosure. The $8,000 claimed by plaintiff was not taken into consideration, according to Fassel. On cross-examination Fassel admitted that he had learned, around May 31, 1961, that plaintiff was claiming some $8,000; he conceded that defendant was aware, prior to the foreclosure, that plaintiff was asserting a lien against the Walton Road property; and he stated that plaintiff’s claim was not taken into consideration in arriving at the sale price of the Walton Road property because defendant made a determination that plaintiff’s claim was not a good one. It was stipulated by both parties that notice of plaintiff’s unpaid account and claimed lien and demand for payment was served on the Successor Trustee under the Walton Road deed of trust before the sale was called.

In the course of settling the pleadings defendant alleged, in paragraph 4 of its original answer, that by the instrument dated April 12, 1961, executed by plaintiff in consideration of defendant’s payment to it of $7866.68, plaintiff had waived and released any right it had to a mechanic’s lien. Plaintiff’s motion to strike that part of defendant’s answer was sustained, and thereafter, after alleging the same essential facts regarding the instrument executed by plaintiff and the payment made to it, defendant in its amended answer pleaded that plaintiff should be estopped from asserting a mechanic’s lien. In its motion for a new trial the defendant maintained that the court erred in sustaining plaintiff’s motion to strike the defense of waiver from its original answer, and it devotes the major portion of its brief to urging that allegation of error here. The evidence regarding the execution of the instrument dated April 12, 1961, was fully developed and defendant makes no claim that by the striking of its plea of waiver it was prevented from introducing any evidence which would have supported that defense.

As was done under similar circumstances in E. C. Robinson Lumber Co. v. Ladman, Mo.App., 255 S.W.2d 72, without regard to the action of the trial court we will consider all of the evidence to determine whether it was sufficient to sustain either defendant’s plea of waiver or that of estoppel. In that connection it is appropriate to point out that it is undisputed that plaintiff’s first delivery of material was made on August 17, 1960, and that the earlier of defendant’s two deeds of trust on the property was not executed by the Lintzenichs until December 20, 1960. Consequently, plaintiff’s lien must be adjudged to be prior and paramount to defendant’s deeds of trust unless plaintiff waived or is estopped from asserting its lien. Schwartz v. Shelby Const. Co., Mo., 338 S.W.2d 781; Schroeter Bros. Hdwe. Co. v. Croatian “Sokol” Gymnastic Ass’n, 332 Mo. 440, 58 S.W.2d 995; Langdon v. Kleeman, 278 Mo. 236, 211 S.W. 877.

However sharp may be the distinction between waiver and estoppel in other areas of the law, it is apparent that as applied in recent mechanic’s lien cases such defenses have been regarded as virtually synonymous. Instead, the courts have examined the equities of the situation in the light of the facts, and have allowed or denied the lien according to the circumstances involved. Thus in Giammarino v. J. W. Caldewey Const. Co., Mo.App., 72 S.W.2d 159, the lien claimant, a subcontractor, had a contract to perform plastering work in the amount of $550. After the completion of the work the general contractor gave the lien claimant a check for $250 in part payment, in return for which the lien claimant executed a document by which he waived any and all lien rights to which he was entitled. The check which the claimant had received was not paid when presented to the general contractor’s bank. Meanwhile, the owner of the property, when the claimant’s waiver was exhibited to him, paid the general contractor $250 in reliance thereon. In the claimant’s action to establish a lien the owner interposed the waiver as a bar. The trial court allowed the owner credit for the $250 paid the general contractor on the strength of the waiver, but gave the claimant judgment for the balance of $300, together with interest, and impressed a lien on the property. In affirming the judgment this court stated (72 S.W.2d 160):

“Appellants insist here that the court below erred in adjudging respondent entitled to a mechanic’s lien against their property because respondent waived his right to such lien by executing the lien waiver before mentioned. It is manifest, however, that such lien waiver was ineffective, for want of any consideration to support it, except in so far as the appellants in reliance upon such lien waiver, made payment to the construction company. 40 C.J. 314, 340. Since the court allowed appellants credit for the payment of $250 made by them to the construction company, they have no ground for complaint on account of such lien waiver.”

That passage from the Giammarino case was quoted with approval in the recent case of Mid-West Engr. & Constr. Co. v. Campagna, Mo., 397 S.W.2d 616, 629, and the comment made that:

“The supporting principle for this rule is in effect one of estoppel. The party executing a lien waiver will not be heard to assert its invalidity as against an owner who has paid out money or otherwise changed his position to his detriment in reliance upon the waiver. * * * ”

As those cases demonstrate, the converse of that principle is likewise true. That is, the invalidity of the lien waiver may be successfully asserted by the lien claimant if the owner or other person interested has not paid out money or otherwise changed his position to his detriment in reliance upon the waiver. That is the situation in the instant case. It is undisputed that plaintiff did not receive full consideration for the lien waiver it executed. The evidence also shows that between April 12,1960, when plaintiff executed the waiver, and May 31, 1960, when defendant learned that over $8,000 was still due plaintiff because payment had been refused on the check received from M & B Construction Company, defendant did not pay out any money in reliance upon the lien waiver. Nor did it, during that period, change its position to its detriment. What it did thereafter by way of foreclosing its deed of trust, purchasing at the sale, and selling the property, it did with full knowledge of plaintiff’s claim, and under the erroneous conclusion that plaintiff’s claim was no good.

Furthermore, defendant’s evidence fell far short of showing that it would be inequitable to grant plaintiff a lien because defendant sustained a loss on the entire transaction. It failed to show the actual price at which it sold the Walton Road property, following the foreclosure. It likewise failed to show the disposition of the 3 or 4 other pieces of real estate owned by the Lintzenichs upon which it foreclosed on the same day. Such evidence was peculiarly within its own knowledge, but was not produced. For aught that appears in the record defendant may have even made a profit on the entire transaction. Considering all of the circumstances in the record before us the equities weigh in favor of the plaintiff. Greenfield v. Petty, 346 Mo. 1186, 145 S.W.2d 367.

Accordingly, the judgment is affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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

      . This figure was the result of a mathematical error.


author: TOWNSEND, Commissioner.

text:
    Arta Faye HENSON, Plaintiff-Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Defendant-Respondent.
    No. 32510.
    St. Louis Court of Appeals. Missouri.
    April 18, 1967.

      Lester W. Duggan, Jr., Florissant, for appellant.
    Robert C. Ely, St. Louis, for respondent.
   TOWNSEND, Commissioner.

Action for personal injuries resulting from the alleged negligent construction, maintenance and operation of a toll bridge by defendant. Plaintiff had a nine-man verdict and judgment for $11500. The verdict and judgment were set aside by the trial court and judgment was entered for defendant in accordance with defendant’s Motion for a Directed Verdict made at the close of all the evidence.

Defendant maintains and operates a toll bridge across the Mississippi River between St. Louis, Missouri, and East St. Louis, Illinois, familiarly known as Eads Bridge. The lower level or deck of the bridge is devoted to railroad traffic. The upper deck is a vehicular toll highway, 41 feet wide. Near the eastern end of the upper level, over the Illinois shore, the vehicular roadway ends; eastbound traffic is intercepted by a large concrete bulkhead which diverts such traffic to the right to a ramp-running down to the bridge approaches. In a similar way westbound traffic comes up a ramp on the other side to the vicinity of the bulkhead near which it adjoins the eastbound traffic area. In front of the bulkhead — to the west — there has been constructed a V-shaped concrete divider, one foot thick and one foot high; each leg of the divider is thirty-seven feet long and the distance between the two legs where they abut the bulkhead is twenty-nine feet.

At about 1:00 A.M., January 22, 1963, plaintiff-appellant and Mrs. Violet Speck left Sheraton-Jefferson Hotel in St. Louis, their place of employment, in Mrs. Speck’s car, Mrs. Speck driving, with the intention of visiting a restaurant in East St. Louis. They proceeded to the bridge, paid toll and moved toward the east end. According to plaintiff’s testimony, Mrs. Speck drove on the right side of the bridge, “She wasn’t driving fast, or she wasn’t slow, neither, you know, driving slow.” Plaintiff wasn’t paying much attention — looking out to the side, the car moved forward in a straight line without.changing direction or speed until it struck the V-divider. She did not notice any other cars on the bridge moving in either direction. She stated that there was nothing about Mrs. Speck’s operation that indicated to her that Mrs. Speck was not going to make the turn to the right and go down the ramp; there was nothing about her driving that caused plaintiff to say anything about her manner of driving. On previous occasions plaintiff and Mrs. Speck had travelled eastward over Eads Bridge, going past the same bulkhead, making the turn and going down the ramp into Illinois. On this occasion she did not see the concrete divider until the car collided with it and bumped over it. When shown defendant’s exhibit 1, a photograph of the locale of divider and bulkhead, plaintiff testified that it correctly represented the •divider, curb, bulkhead and the “Keep to Right” sign as they were on the night of the accident.

That photograph shows that the front of the divider carries alternate diagonal stripes of white and some dark color. It shows also that the much higher bulkhead, approximately thirty-four feet to the rear of the apex of the V-divider, is also painted with alternate diagonal stripes of the same kind. Atop the center of the bulkhead is a sign of apparently greater height than the height of the bulkhead itself; on the sign, in large painted letters, appear the words “Keep To" on one line and the word “Right” directly beneath “Keep To”. On top of this sign is a smaller diamond-shaped sign carrying the word “Slow”. Directly beneath the right third of the “Keep to Right” sign and apparently affixed to the bulkhead is a sign with a white background; superimposed thereon is an arrow pointing to the right. At a slightly lower level, directly beneath the center of the “Keep to Right” sign and also apparently affixed to the bulkhead is an ■octagonal plaque carrying numerous objects which have the appearance of glass reflectors. At the extreme right and on the face of the bulkhead is a line of neon tubing terminating in an arrow pointing to the right. Immediately behind the apex of the V-divider on a standard of its own is a pentagonal plaque carrying six reflectors. ■Of this congeries of objects at the scene, plaintiff remembers seeing only the bulk-Iiead, the divider and the “Keep to Right” ■sign on the night of the accident. She did not remember going from the bridge to the hospital.

The photographs used by the plaintiff and those used by the defendant as exhibits were taken by the same photographer. The plaintiff’s photographs were taken at a date later than those used by defendant. Certain changes in the signs had been made in the Interim, but the location of the bulkhead, the divider and the Keep to Right sign, as well as the stripes on divider and bulkhead, are the same in both photographs. According to the photographer’s estimate, plaintiffs Exhibit D was taken at a distance of sixty-five feet from the apex of the divider. That exhibit depicts with complete clarity the bulkhead, the divider and' the “Keep Right” sign. The same witness, testifying concerning defendant’s Exhibit 3, estimated that that photograph was taken at a distance of 175 feet from the closest point of the divider; the latter exhibit shows plainly the location of the bulkhead with its stripes across the roadway. It also portrays the “Keep to Right” sign, the “Slow” sign, the sign of the arrow, the reflectors and the divider.

The exhibits of each party show two separate lighting fixtures attached to the top of the Keep Right sign with shades directed downward for the plain purpose of illuminating the sign. Likewise the exhibits of each party show the existence of a row of lighting standards on each side of the bridge; these standards are along and just outside the curbing on each side of the roadway. In answer to an interrogatory the defendant stated that the height above the highway deck of the illuminating devices on the standards was between nineteen feet and nineteen feet nine inches. In another answer the defendant stated that the shortest distance between any part of the divider and any part of the standards was 57 feet 6 inches.

None of the exhibits shows any lane markings on the surface of the highway deck at any point.

Mrs. Speck, called by plaintiff, has no recollection of events from the time of taking her car from the garage at the hotel untjj. she regained consciousness in the hospital two weeks after the. accident.

Defendant offered no testimony.

Action was originally brought against Mrs. Speck and Terminal. Subsequently in February, 1965, the action against Mrs. Speck was dismissed with prejudice as a result of a settlement between plaintiff and Mrs. Speck under which plaintiff was paid $5850.

The duty resting upon a person in the position of the defendant here was long ago stated by the Supreme Court: “Although defendant is not a common carrier, its obligation is to keep its bridge in a reasonably safe condition for travel, and it is only liable for negligence in failing to so keep it * * * the authorities substantially agree that ordinary care is all the law requires; but to constitute ordinary care the care must be proportionate to the danger to be apprehended * * * such care as a person of ordinary prudence would exercise.” Gibler v. Terminal R. R. Ass’n, 203 Mo. 208, 101 S.W. 37, 39, 40, 41. See Sirounian v. Terminal Railroad Ass’n, 236 Mo.App. 938, 160 S.W.2d 451, 453.

Plaintiff’s petition charges negligence of defendant in the combination of designated factors, namely, maintenance of the divider as a condition dangerous to persons travelling upon the bridge, the state of disrepair of the travelled portion of the highway deck, the slick and icy condition of the roadway, failure to adequately illuminate the scene and failure to give timely and sufficient warning of the allegedly dangerous conditions existing on the bridge. The references to disrepair and to the icy and slick state of the deck may be dismissed immediately as there was no evidence whatsoever relating to such alleged conditions. That leaves plaintiff’s complaint as one of inadequate lighting of, and failure to warn of, a dangerous structure in the roadway, all which plaintiff chose, when framing her verdict-directing instruction, to, condense into failure to warn plaintiff adequately of the presence of the dangerous divider.

None of the testimony adduced by plaintiff tended to substantiate her claim of lack of lighting or her claim of failure to provide adequate warning of the obstruction.

Plaintiff’s other evidence defeats plaintiff’s case. As to warning devices: Plaintiff’s exhibit D, as above noted, a photograph taken at a distance of sixty-five feet from the apex of the divider, shows clearly the striped divider, the striped bulkhead and the “Keep Right” sign. It can be readily deduced from the photographer’s testimony that plaintiff’s exhibit B was taken at a distance of more than 175 feet westwardly from the divider; that exhibit again clearly shows the striped bulkhead, topped by the large “Keep Right” sign which in its turn is topped by the diamond-shaped sign carrying the word “Slow” (owing to the gradual drop-off in the floor of the roadway the divider does not show in this photograph). In this exhibit B one of the lighting standards at the right side of the roadway carries a sign reading “Speed limit 15 M.P.H.”

As to illumination of the locale: Plaintiff’s exhibits A, B, C, D, F and H display the type of lighting standards installed on both sides of the roadway; each standard near the top carries an arm extending inward toward the roadway and at the end of each such arm is a floodlight. Plaintiff read into the record interrogatories addressed to the defendant and answers of defendant thereto. The height of the floodlights is established thereby at not less than nineteen feet. The standard nearest the divider is 57 feet 6 inches distant. Plaintiff’s exhibit F shows that to the west of the apex of the divider there is a standard and floodlight on each side of the roadway; each such standard and floodlight is a part of a row of standards with floodlights extending across the bridge. In addition plaintiff’s exhibit D displays the two lighting fixtures on the Keep Right sign, previously described. As indicated above, plaintiff has produced no evidence that any of the lighting devices was not operative at the time of the accident. We cannot assume that such an elaborate system of illumination — the floodlights, the lights above the Keep Right sign and the directional neon arrow — was not functioning at the time of the accident. The lighting was obviously sufficient to illuminate the divider and to give warning from a long distance away of the structure erected across the roadway.

We hold that the plaintiff failed to make a submissible case and consequently the action of the trial judge was correct.

The action of the Circuit Court in setting aside the verdict and judgment and in entering judgment for the defendant is affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, the action of the Circuit Court in setting aside the verdict and judgment and in entering judgment for the defendant is affirmed.

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