author: L. F. COTTEY, Special Commissioner.

text:
    UNION ELECTRIC COMPANY, a Missouri Corporation, (Plaintiff) Appellant, v. Bernard J. MENKHAUS and Catherine S. Menkhaus, His Wife, W. E. Burtelow, Trustee, and Henry E. Nuske, Cestui Que Trust, (Defendants) Respondents.
    No. 31369.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied. Oct. 14, 1963.
    J. B. Schnapp, Schnapp & Cooper, Fred-ericktown, J. W. Thurman, and Thurman, Nixon & Smith, Hillsboro, for appellant.
    Will B. Dearing, and Dearing, Richeson & Weier, Hillsboro, for respondents.
   L. F. COTTEY, Special Commissioner.

The determinative question on this appeal, and the only one to which we shall address ourselves, is whether the trial court committed reversible error in admitting certain testimony of respondents’ witness Murphy relative to the price received by him for a tract of land he had sold to appellant, which testimony respondents’ counsel was thereafter permitted to stress in his argument to the jury. The facts pertinent to the inquiry are these:

Union Electric Company, the appellant, was engaged in constructing an electric transmission line in Jefiferson County and, in the course of doing so, found it necessary to condemn a 100-foot strip of right-of-way across respondents’ 171-acre farm. The strip comprised 6.17 acres. At the same time, and for the same purpose, the Company purchased outright from witness Murphy a 3-acre tract lying “across the road” and “a short half a mile” from respondents’ farm. For it the Company paid Murphy $9,000.00. At the trial of respondents’ exceptions to the commissioners’ report in the court below, respondents produced Murphy who testified, over an ineffective objection, that he had sold his land for “$3,000.00 an acre.” He was not asked on direct examination, nor did he volunteer, the name of the purchaser. That information came to light for the first time in the course of his cross-examination. Because controlling significance is attributed to that circumstance by respondents, we are obliged to quote extensively from the record to. show how the problem developed and was disposed of, employing only such excisions and emendations as the interests of clarity and coherence may dictate. In these excerpts Mr. Schnapp speaks for appellant, Mr. Dearing for respondents. The pertinent part of witness Murphy’s cross-examination was as follows :

“Mr. Schnapp: Sold for a particular purpose ?
“Witness Murphy: Yes.
■“Mr. Schnapp: Who bought this property ?
“‘Witness Murphy: Union Electric.
“Mr. Schnapp: For the purpose of this transmission line?
“Witness Murphy: That’s right.”

In that way, for the first time, the identity of the condemnor as the purchaser was revealed and the purpose of the purchase was disclosed. Appellant promptly moved to strike Murphy’s testimony from the record “because what Union Electric may have paid for the property for transmission lines is not competent evidence in the trial of this case because of the necessity to acquire the said acreage,” and because “it was acquired in an effort to avoid condemnation.” Thereupon the following colloquy took place between the court and counsel:

“Mr. Dearing: Well, your Honor, you can’t ask questions and then get an answer you don’t like and ask the court to strike it out. I didn’t ask him who bought the property or anything else, I merely asked him if there’d been a sale.
“Mr. Schnapp: Obviously everyone in the court room except myself knew to whom it was sold.
“‘Mr. Dearing: He knew.
“The Court: Overruled.
“Mr. Schnapp: I now ask that a mistrial be declared by virtue of this incompetent and highly prejudicial testimony, your Honor.
“The Court: Overruled.”

Murphy was excused. A few minutes later appellant’s counsel approached the bench with a request for permission to recall him, out of the presence of the jury, “for the purpose of showing that at the time Mr. Dearing placed him on the witness stand, Mr. Dearing knew his property was sold to Union Electric.” This exchange ensued:

“Mr. Dearing: You don’t have to put him on, I say I know that to be a fact.
“Mr. Schnapp: You knew that at the time?
“Mr. Dearing: I knew it at the time and I instructed the man not to mention the sale to Union Electric. That’s what happened. Sure I knew it, I was going to represent the man.
“Mr. Schnapp: You’ll admit that in the record?
“Mr. Dearing: Sure I knew it, you can put it in there, the value, and I instructed the man not to say who he made the sale to.
“The Court: All right.”

Thereafter there was this further development:

“Mr. Schnapp: May I approach the bench and make an objection, your Honor? I move the court to advise the jury to disregard the testimony of Frank Murphy in view of Mr. Dear-ing’s previous statement that he knew, prior to putting Mr. Murphy on this witness stand, that Murphy had sold his three acres of land to Union Electric for this transmission line. His testimony is highly improper, incompetent and wholly immaterial, not a voluntary sale. It’s sold in fact to avoid litigation; an element of collusion in the purchase of it and the necessity of acquiring it, all enter into it, and for that reason we ask that the court so advise the jury.
“The Court: You got any law on that problem ?
■“Mr. Schnapp: Yes, sir.
“The Court: I’ll look at it a little later.
“Mr. Schnapp: I also move for a mistrial, based upon these same elements.
“The Court: For the present, they’ll both be overruled. I’ll consider it on the motion for new trial.”

In his argument to the jury counsel for respondents made a number of references to the Murphy property lying “right across the road” which “Frank Murphy had sold to the Union Electric” for “$3,000.00 an acre.” He contrasted Murphy’s testimony with that of a witness for appellant who had estimated respondents’ land to be worth less than $200.00 an acre, saying, “Why did the Union Electric go across the road and pay $9,000.00, or $3,000.00 an acre, and then come in and want you to believe this man ?” He said, further, “Now, if his (Murphy’s) land is worth $3,000.00 an acre, do you think within a quarter of a mile and across the road that my clients’ property is worth $25.00 an acre?” Appellant’s objections to that line of argument were timely and well-grounded. All were overruled.

The prevailing rule is that evidence as to the price paid by the condemnor in the acquisition of other property essential to the project is not admissible to prove the value of the property condemned. Jahr, Eminent Domain, Sec. 144; Annotations, 118 A.L.R. 893 and 174 A.L.R. 395. Such evidence is regarded as “incompetent .and prejudicial.” Yonts et al. v. Public Service Co. of Arkansas, 179 Ark. 695, 17 S.W.2d 886, 888. Missouri follows the prevailing rule. In Metropolitan Street Ry. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860, the judgment in favor of the condemnee was reversed because of the admission of evidence of that character. In that case the Supreme Court, quoting Lewis on Eminent Domain as to the reason for the rule, said, at 1. c., 864: “ ‘What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property. For these reasons such sales would not seem to be competent evidence of value in any case, whether in a proceeding by the same condemning party or otherwise.’ ” In Kansas City & G. Ry. Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891, 1. c. 895, 84 A.L.R. 1477, the court, citing the Walsh Case with approval, said, “Nor is it competent to show the price paid by the plaintiff in order to avoid a condemnation suit.” And still more recently the same court, in Kansas City v. Thompson, Mo., 208 S.W.2d 216, 1. c. 219, said: “* * * for the reasons set forth in Metropolitan Street Ry. Co. v. Walsh we adhere to the view that sales between condemnee and con-demnor of property involved in the proceeding are not admissible in evidence on the issue of value and damages.” It is unnecessary to pursue the subject further. The evidence was inadmissible.

Respondents disparage its effect. They say that Murphy “did not express an opinion as to the value of the land condemned” or any other land, “he merely stated a fact as to what he had done.” They conclude, “A statement by the witness as to the amount he received for a certain tract of ground could in no way prejudice the rights of appellant.” We do not agree. The evidence could have been offered for no other purpose than to furnish the jury a yardstick for measuring the value of respondents’ neighboring land, and we will not be so egregiously naive as to suppose it had any other effect. One need only look to respondents’ argument to see how skillfully it was exploited for that precise purpose before the jury. We have no quarrel with respondents’ repeated assertion that evidence of bona fide sales of similar lands in the vicinity, made at or about the time of the taking of the condemnees’ land, is admissible to establish the value of the land taken. Of course, it is. But, as the Walsh case puts it, there is “a manifest distinction” between a sale made in the ordinary course of business and one made to the condemnor who is under the necessity of acquiring the property in order to complete the project under construction. The latter is not an “arm’s length” transaction; it “is in the nature of a compromise, and for that reason is not a fair measure of value.” South Park Commissioners v. Ayer, et al., 237 Ill. 211, 86 N.E. 704. We find it hard to believe that that distinction has been entirely lost on respondents, else why the precaution of instructing the witness to conceal the purchaser’s identity ?

That brings us to respondents’ second point. They insist that appellant “voluntarily developed” the fact that Murphy had sold his land to the condemnor, and hence, that whatever error inheres in that disclosure has been invited by appellant. We think not, for two reasons. In the first place, the disclosure of the purchaser’s identity was not voluntary. The inquiry that elicited it was compelled by the fact that the witness had been instructed not to reveal on direct examination the very thing that would expose the impropriety of his testimony. The damaging fact of the sale price was thereby introduced into the case in disguise. The only way to have it ejected was to unmask it. This appellant did, necessarily and rightly. And appellant’s objection to the testimony, made at that point, was timely and proper. Kansas City v. Thompson, supra, (208 S.W.2d 216) 1. c. 220. In the second place, respondents’ argument proceeds from the premise that the quality of prejudice which renders such evidence incompetent lies in the fact that the condemnor is the purchaser, and that proof of the sale price, standing alone, is unobjectionable. The converse is the reality. It is the sale price that furnishes the inaccurate yardstick; the identity of the purchaser is simply the means by which the impropriety of that evidence is recognized. In fact, evidence of the price at which such a sale was consummated would be just as prejudicial and improper if the purchaser’s identity as condemnor remained concealed, the only difference being that, in that situation, the incident could probably not be argued with quite such telling effect to the jury.

Finally respondents say, “The amount of the verdict in itself reflects that the jury did not accord the testimony of Frank Murphy any probative value.” This, because the $7,000.00 verdict cannot be equated with the taking of 6.17 acres of land worth $3,000.00 an acre. We are not impressed with that suggestion. The figure of $3,000.00 per acre given the jury as the value of the Murphy land lying “within a quarter of a mile and across the road” from respondents’ land was three times, as great as respondents’ other three witnesses thought respondents’ farm was worth and something like ten times as great as the average value put on it by appellant’s six witnesses. The verdict was nearly three times as large as the commissioners’ award. We cannot say that the result was unaffected by the incompetent evidence of the Murphy sale; indeed we must presume the contrary. Casto v. Railway Express Co., Mo.App., 219 S.W.2d 276, 281. And its prejudicial effect could hardly have been more determinedly aggravated than it was by respondents’ argument to the jury in this case.

It is unnecessary to consider appellant’s other assignments of error. For the reasons assigned the judgment should be< reversed and the cause remanded for a new trial.

The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion of L. F. COTTEY, Special Commissioner, is adopted as the opinion of the court.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    Joseph A. SCHULTE, (Plaintiff) Appellant, v. Elmer G. FLORIAN, (Defendant) Respondent.
    No. 31375.
    St Louis Court of Appeals. Missouri.
    Sept. 17, 1963.

      Sherwood R. Volkman, St. Louis, for appellant.
    Robert L. Inman, Clayton, for respondent.
   L. F. COTTEY, Special Commissioner.

This case originated in the Magistrate Court of St. Louis County on a petition containing the formal averments of the old common law action of trover, it being alleged that on a certain day plaintiff was the owner of, and entitled to the possession of, a plaster mixing machine of the value of $300 which the defendant then and there “wrongfully took,” and that “defendant-refused to return the same and unlawfully converted and disposed of said property for his own use.” On appeal to the Circuit Court trial was begun before a jury, but at the conclusion of plaintiff’s evidence the trial court sustained a motion for directed verdict in defendant’s favor and judgment was entered accordingly. The propriety of that ruling is the sole question presented here.

Plaintiff was the only witness who testified. From his rather sketchy account of the affair these facts emerge: Plaintiff was a plastering contractor who owned the machine in question and used it in his work. It was worth its alleged value. During the month of May, 1960, he took the machine to the site of a job on which he expected to be engaged in the near future and left it there. One Schwerdtfeger was the building contractor on that job, and defendant was employed there as a bricklayer. While the machine remained there, unused, Schwerdtfeger called plaintiff’s wife one-day and stated that one of the bricklayers’’ machines (presumably defendant’s) had broken down. He asked permission to use plaintiff’s. Plaintiff’s wife replied that plaintiff was absent at the moment but that upon his return she would have him reply to the request. Upon his return plaintiff did call Schwerdtfeger and learned' from him that in the meantime the machine had been used without waiting for his permission, “and he said they had cleaned it out. and that was all that was said about it.”

A week or so thereafter plaintiff went out to the job site, found his machine gone and, on inquiry, discovered that defendant was using it on another job some distance away. Plaintiff went to that place, picked up his machine without incident and apparently without even seeing defendant, and returned it to its original location. It had been left “in a dirty condition.” A day or so later he encountered defendant, asked him “about cleaning the machine, and he told me to have one of my laborers clean it (and) he’d pay for his time.” For undisclosed reasons plaintiff rejected that offer and, instead, on various subsequent occasions demanded that defendant clean up the machine which was unusable in its then condition; but, said plaintiff, “every time I talked to him about it he’d walk away or else give me some remark about it, but he never would clean it.” This suit followed. Before it came to trial, however, defendant actually did clean up the machine and it was “a good cleaning job, sand-blasted.” There was no evidence introduced, and no proof offered, that plaintiff sustained any actual damages on account of defendant’s use of the machine or any loss of any kind on account of being deprived of its use. On that showing plaintiff rested and was cast on defendant’s motion. Defendant has not favored us with a brief.

We would be warranted in refusing to consider the propriety of the trial court’s ruling on the motion because the point has not been properly preserved for review. Plaintiff’s motion for new trial recited five so-called “grounds,” the first four of which were: “1. Because the verdict is against the law. 2. Because the verdict is against the evidence. 3. Because the verdict is against the law, the evidence, and the law under the evidence. 4. Because the verdict is against the weight of the evidence.” (The fifth ground, equally vague, related to the alleged refusal of the trial court to admit certain evidence; but the record discloses no attempt to adduce any such evidence, and no offer of proof was made, and on this appeal the point has been voluntarily abandoned).

All four of the quoted “grounds” have been held to be wholly insufficient to preserve for appellate review the propriety of the trial court’s action in sustaining the motion for directed verdict. Commenting on identical assignments in a motion for new trial under review in Marquand Development Corp. v. Maisak-Handler Shoe Co., Mo., 260 S.W.2d 242, 1. c. 246, the Supreme Court said: “By the record in this case we are precluded from a consideration of the action of the court in sustaining defendant’s motion to dismiss or in directing a verdict for defendants or from determining on this appeal whether appellant made out a submissible case and whether the court erred in refusing to submit such case to the jury. These matters were not preserved for review in plaintiff-appellant’s motion for a new trial.” For a further discussion of the question and a definitive analysis of the applicable Supreme Court Rules, see The C & O Distributing Co., Inc. v. Milner Hotels, Inc., Mo.App., 305 S.W.2d 737.

It is suggested to us by Rule 79.04, V.A. M.R., however, that we should examine the record for “plain errors affecting substantial rights” and rule on them, even though not properly preserved for review, if we deem that the ends of justice require it. We have made that examination, as our review of the facts discloses, and reluctantly, have concluded that the learned trial court committed a “plain error” in sustaining defendant’s motion. Plaintiff’s evidence made a submissible case on the question of conversion.

It is true there was no evidence of demand or refusal, but those matters “ * * * are mereiy evidential, not creative, and they need not be shown to make out a case of conversion where some other independent act of conversion (some act in opposition to the rights of the owner) is in evidence.” Sigmund v. Lowes, Mo. App., 236 S.W.2d 14, 1. c. 19. It is true that there was no direct proof of an unlawful intent on defendant’s part in “borrowing” the machine and using it temporarily “* * * but the intention may be inferred from the facts and circumstances * * Pitcock v. Higgins, Mo.App., 239 S.W. 870, 871, and the modern view is that such “ * * * question of good faith, and the additional questions or elements of motive, knowledge or ignorance, or care or negligence, are not involved in actions for conversion,” 89 C.J.S. Trover and Conversion § 7, pp. 536-537. It is true, as the evidence affirmatively discloses, that defendant had not “disposed of said property for his own use” in the sense of having sold it or otherwise put it permanently beyond plaintiff’s reach, but proof of such a permanent and irretrievable disposition of the property is not required to make out a technical case of conversion. And it is true that plaintiff had recovered the machine and had it in his possession at the time the suit was brought, but a return of the property by the wrongdoer operates only in mitigation of damages and not as a bar to the action. 89 C.J.S. Trover and Conversion § 86, supra; Lloyd v. Tracy, 53 Mo.App. 175.

The controlling fact shown by the record is that defendant took the machine and used it as if it were his own without plaintiff’s permission. That was an “act in opposition to the rights of the owner.” That was a conversion of it. “A wrongful assumption of property is not merely evidence of, but actual conversion.” Proctor v. Home Trust Co., 221 Mo.App. 577, 284 S.W. 156, 159. Defendant was trespasser with respect to the machine and “ * * * trover may be maintained whenever trespass will lie * * Pitcock v. Higgins, supra, 239 S.W. 1. c. 871. So, both by his tortious taking and by his proprietary use of the machine defendant effected its conversion. Sigmund v. Lowes, supra, 236 S. W.2d 19. The fact that he made no claim of ownership of the property and did not sell or otherwise permanently dispose of it goes only to the degree of his offense, not to its commission. There was a violation of plaintiff’s rights and it was “plain error” to deny him his remedy,

The question remains, however, as to whether such error affects any “substantial right” of plaintiff’s. His property has been returned to him, it is in good condition, and he has neither proved nor offered to prove any actual damages resulting from defendant’s temporary appropriation of it. But, “[a]lthough no actual loss is shown, if there has been a technical conversion the defendant is liable for at least nominal damages.” 89 C.J.S. Trover and Conversion § 161, p. 642, supra. And “ * * * in this jurisdiction a judgment for nominal damages is a substantial right since such a judgment decides the incidence of the costs.” Curd v. Reaban, Mo., 232 S.W.2d 389, 392. The failure to award nominal damages in a proper case “ * * * entitles the plaintiff to a reversal of the judgment * * State of Missouri, to Use of Goddard, Peck & Co. v. Rayburn et al., 22 Mo.App. 303, 306.

The Curd case makes it clear, however, that the failure to award nominal damages violates a plaintiff’s substantial rights only when, and only because, the judgment carries with it the costs of the action. In that case the trial court, 'after hearing all the evidence offered by both sides, found the issue in plaintiff’s favor but neglected to make an award of nominal damages although the costs were properly taxed against defendant. It was held on appeal that the omission of any award of nominal damages did not, by itself, require a reversal. The judgment was accordingly affirmed; and rightly so, both on the principle expressed by the maxim de minimis non curat lex and in furtherance of the public interest in discouraging the protracted' litigation of inconsequential grievances. Those same considerations suggest a similarly practical solution for this case; as, for instance, a remand with instructions to the trial court simply to retax the costs against defendant. We may not resort to that expedient here, however, because to do so would be to deprive defendant of his right to have the jury pass on his possible defenses and, incidentally but importantly, on plaintiff’s credibility as a witness. It may well be that on a retrial the jury will find the issues in defendant’s favor and thereby relieve him of liability for the costs. At any rate he is entitled to that chance. We reluctantly conclude, therefore, that the judgment must be reversed and the cause remanded for a new trial.

The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by L. F. COT-TEY, Special Commissioner, is adopted as the opinion of the Court.

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

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


author: ANDERSON, Judge.

text:
    Mildred GRIMES, (Plaintiff) Respondent, v. STANDARD OIL CO., a Corporation, and Schenberg’s 20th Century Supers, Inc., a Corporation, (Defendants) Appellants.
    Nos. 31239, 31240.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct 14, 1963.

      G. W. Marsalek, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for Standard Oil Co.
    Louis Shifrin, Shifrin, Treiman, Agat-stein & Schermer, Richard M. Stout, and Thomas M. Richards, St. Louis, for Schen-berg’s 20th Century Supers, Inc.
    Morris A. Shenker and Frank B. Green, St. Louis, for respondent.
   ANDERSON, Judge.

This is an action by Mildred Grimes for damages sustained by her as a result of a fall on the public sidewalk alleged to be due to the negligence of defendant Standard Oil Company, a corporation, and defendant Schenberg’s 20th Century Supers, Inc., a corporation. The jury returned a verdict against both defendants in the sum of $15,000.00 From the judgment on this verdict defendants have appealed.

The case is here on two separate appeals. The appeal of Schenberg’s 20th Century Supers, Inc., is identified in this court as No. 31,240. The other appeal, taken by Standard Oil Company, is identified in this court as No. 31,239. However, regardless of the fact that separate notices of appeal were served and received by the clerk of this court, and filed under separate docket numbers, there is still but one case in this court as in the court below. Rothweiler v. St. Louis Public Service Co. et al., Mo. App., 224 S.W.2d 569; Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243; Waterman v. Waterman, Mo.App., 210 S. W.2d 723; Lincoln Trust Co. v. Mersman, Mo.App., 187 S.W.2d 50; Montana v. Nenert, Mo.App., 226 S.W.2d 394.

Defendant Schenberg operated a grocery store at 39th Street and Lafayette Avenue in the City of St. Louis. During the Christmas season 1959, said defendant displayed Christmás trees on both sides of the sidewalk outside its store on the Lafayette Avenue side, leaving a passageway through the trees on the sidewalk estimated by plaintiff as being 2½ to 3 feet wide. The south wall of Schenberg’s store building is twenty feet from the north curbline of Lafayette. It is nine feet from the north curb of Lafayette to the south edge of the sidewalk, and six feet from the north edge of the sidewalk to the building line. In the rear of the building west, there was a drum for fuel oil. Fuel oil stored in this drum was used to provide heat in the area where the Christmas trees were displayed. This oil was furnished to defendant Schenberg by defendant Standard Oil Co. On December 21, 1959, Standard made a delivery of oil to Schenberg. This delivery was made after dark, between 6:00 and 7:0Q P.M.. Standard’s truck was “double parked” on Lafayette, and a dark colored oil hose ran from the truck to the oil drum.

Plaintiff, who had alighted from a bus at the corner of 39th Street and Lafayette Avenue, walked west on the sidewalk in question, intending to go to a Mrs. Noble’s house to get her young son. Plaintiff had been going down the'sidewalk through the trees after dark for several days prior to the accident. Other than for the presence of the hose, the condition of the sidewalk on the night in question was no different than on the other nights when she had used the walk.

Plaintiff- claims she fell over the hose and was injured. She stated she did not see the hose until after she had fallen. Defendants deny any knowledge of the fall having taken place. Plaintiff testified that the hose over which she tripped was east of the steps, which were to the rear of f ; building owned by Schenberg. She also testified that the trees blocked out some of the light and that it was very dark where she fell. All the witnesses, including plaintiff; agreed there were some exterior artificial lights mounted on the south wall of the building belonging to Schenberg. There were also city street lights i-n the vicinity. Plaintiff first testified that the lights were turned on, but later said she did not know if they were on or not. Her witness, Mrs. Spencer, said she was sure . the lights were on.

Other facts will hereafter be stated in connection with the points raised.

Appellant Schenberg contends that the ' court erred in overuling its motion for a directed verdict. In support of this contention it is urged that because plaintiff had knowledge of the condition of the sidewalk, except for the presence of the hose, and the fact that the hose was owned by Standard Oil Company and placed across the sidewalk by the latter’s employee, over whose action Schenberg had no control, the alleged negligence of Schenberg was not the proximate cause of plaintiff’s fall. In other words, Schenberg takes the position that its act of maintaining the display could only be a remote cause of plaintiff’s fall and that the negligence of Standard Oil Company was the sole proximate intervening cause thereof.

The evidence, which in our judgment refutes said contention, is as follows: Schen-berg made a private use :of the public sidewalk in question for the display of its merchandise. This display consisted mainly of about 1,000 Christmas trees stored in bins located on both sides of the sidewalk. In fact the display encroached on the sidewalk, leaving a pathway through the trees of 2Y2 to 3 feet, or just wide enough for one person to walk leisurely through the display. The trees blocked out some of the light; the lights were dimmed and it was very dark where plaintiff fell.

Schenberg used an outdoor stove, at the site of this display, which burned oil. The oil for this stove was stored in an oil drum placed at the top of steps leading from the sidewalk to a walkway in the rear of the building. Mr. Schenberg, manager of the store, had several conversations with the defendant Standard Oil Company, the day plaintiff was injured, about the delivery of oil. When the oil truck came he was told by another employee that it had arrived. He saw the oil delivery man at the time. Mr. Schenberg had purchased oil for the oil drum on previous occasions and knew that it was delivered by means of a tanker truck, and that the oil would be placed into the drum by means of a hose leading from the tank to the drum. It was dark at the time the tanker arrived, being between 6 and 7 P.M., on December 21st. Plaintiff did not see the hose until after she tripped over it. She further testified she could not have seen the fuel hose with what she had to go through. The hose was dark in color.

It is clear from this evidence that a jury could reasonably have found that the sidewalk itself was obstructed, and that the display in question so darkened the passageway through the trees as to make it difficult for one using the sidewalk to see objects thereon. From the evidence, and the testimony we have detailed, it could reasonably be found that plaintiff’s injury would not have happened, but for the negligence of Schenberg’s in maintaining the display of Christmas trees in the manner and to the extent it did. Such negligence is, therefore, to be viewed as a proximate and efficient cause of the plaintiff’s injury, although another independent act intervened in point of time subsequent thereto, which concurred and operated therewith to cause said injury. It is our view that such intervening cause could, under the facts of this case, reasonably have been anticipated, which is an essential element necessary to a finding that the negligence of defendant Schenberg’s was a link in the chain of causation. Our ruling is based upon the law as announced in the following cases. Dickerson v. St. Louis Public Service Company, 365 Mo. 738, 286 S.W.2d 820; McWhorter v. Dahl Chevrolet Co., 229 Mo.App. 1090, 88 S.W.2d 240; Setzer v. Ulrich, Mo.App., 90 S.W.2d 154; Gray v. Kurn et al., 345 Mo. 1027, 137 S.W.2d 558; Schneiter v. City of Chillicothe, 232 Mo.App. 338, 107 S.W.2d 112; Brown v. Alton R. Co., 236 Mo.App. 26, 151 S.W.2d 727.

Both appellants contend that on the evidence adduced, plaintiff was guilty of contributory negligence as a matter of law, in failing to see an obstruction which was clearly visible, and which could have been avoided by the exercise of ordinary care for her own safety.

In support of the contention that the hose was clearly visible and that plaintiff was negligent in not observing it, appellant relies upon the following testimony. Plaintiff could see the hose after she fell over it, and observed that it angled across the sidewalk. The end of the hose went up the steps adjacent to the walk and to the back of the building. She saw the driver of the truck, west of her, on the sidewalk. She saw an employee of the store known as “Freddy” at some distance away and could identify him. She could see that her hose was torn. After she got up from the sidewalk plaintiff could see the tank truck double-parked in the street, facing west, and observed that it was halfway between a fireplug and an automobile. She could see that a name was on the tank part of the truck and she could read the name. Plaintiff further testified she had been going down the same path between the Christmas trees for several days before the day of the accident.

It is also urged that plaintiff was not watching where she was putting her feet at the time, but was watching out for Christmas trees and other people on the walk. The testimony upon which this statement is based was as follows:

“Sir, I wasn’t looking right at my feet when I came through there, I was watching out for the trees and the other people, trying to make my way through there. I wasn’t looking at the ground, right at my feet, watching where I was putting my feet.”

In this connection, as we have heretofore pointed out, according to plaintiff’s evidence the branches of the Christmas trees encroached on the sidewalk, leaving a pathway through the trees of only 2½ to 3 feet, or just wide enough for one person to walk leisurely through. There were other people shopping in the area and plaintiff had walked around at least two or three persons before she reached the place where she fell.

It is also pointed out that plaintiff’s witness, Mrs. Spencer, was at some undisclosed distance from plaintiff when she saw plaintiff down on the sidewalk. When she got close to plaintiff to assist her, Mrs. Spencer could see the hose. She saw that the hose lay at an angle from the tank truck in the street across the sidewalk toward the building. She could see the truck was red, and could see a container at the steps at the west end of the store building. She stated that she could have stepped over the hose-on the day plaintiff fell, but could not recall whether she did. She had, on other occasions, seen a fuel hose across the walk,. about the same time of day and in about the same position in which it was placed! on the day plaintiff fell, and a lot of people stepped over it.

It is also pointed out that the color of the hose was dark or black and that the court should take judicial notice of the fact that a concrete sidewalk is gray in color. The lights on the south side of the building were on at the time of plaintiff’s fall, and flood lights on arms on a signboard above, the building were also on at the time.

As opposed to the foregoing eviL dence there was, as we have heretofore detailed, evidence that the display of Christmas trees encroached upon the sidewalk, leaving a pathway through the trees of 2½ to 3 feet; that the trees blocked out some of the light and that it was very dark where plaintiff fell. Plaintiff, as she proceeded down the sidewalk, not only had to observe the sidewalk, but was compelled to look out for tree branches extending over the sidewalk, and for other persons using-the walkway. It was not necessary under the circumstances for her to keep her eyes-riveted upon the sidewalk or to closely examine the place where she would place her feet. Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566; Ryan v. Kansas City, 232' Mo. 471, 134 S.W. 985. Knowing of the-presence of the Christmas trees she was under a duty to see and discover any danger she might encounter from such obstruction, but otherwise she had a right to presume the way was clear and free from other forms of obstructions, and allow her attention to momentarily be diverted by circumstances concerning her interest. Butler v. City of University City, Mo.App., 167 S.W. 2d 442. Whether plaintiff exercised ordinary care for her own safety under the facts and circumstances developed by the evidence was, in our judgment, a jury question, and the court did not err in so ruling..

The further contention of said ap-pellant, that since plaintiff had knowledge -of the condition created by defendant Schenberg, said defendant’s negligence was not the proximate cause of the injury, must 'be held to be without merit. Such condition under plaintiff’s evidence could be found to be a contributing factor in causing plaintiff’s injury. What we have said disposes of the point urged. McWhorter v. Dahl Chevrolet Co., supra.

Schenberg assigns as error the action of the trial court in admitting into evidence Section D of Ordinance 4046 of the City of :St. Louis. Said Section is as follows:

“It shall be unlawful to expose or offer for sale, by auction or otherwise, upon any public highway or other public place in this city, any merchandise or other articles, provided, however, that this Section shall not be construed to forbid merchants occupying with their merchandise, a limited portion of the sidewalk adjacent to the property ■occupied by them in conformity with the conditions of a permit previously ■obtained from the Board of Public Service, the payment of fees as provid•ed in Section 2362-A and subject to the following limitations: One foot and six inches on sidewalks eight feet or less in width, two feet on sidewalks more than eight feet and less than ten feet in width, three feet on sidewalks ten feet and less than twelve feet in width, four feet on sidewalks twelve feet and less than fifteen feet in width, and five feet on sidewalks fifteen feet or more in width; and provided further, that this section shall not be construed to prevent merchants and manufacturers from occupying with their merchandise not more than one-half of the width of the sidewalk upon which the respective merchant’s or manufacturer’s place of business abuts, when receiving or shipping such merchandise if ■said merchandise is not permitted to remain on such sidewalks more than dour hours, and provided further that such merchandise shall not remain on the sidewalk when the place of business abutting upon such sidewalk is not open for business.”

The petition, in substance, alleged that defendant Schenberg had carelessly and negligently obstructed the free passage of pedestrian traffic upon the sidewalk by the maintenance of the trees and other property upon the sidewalk in question, and did violate the foregoing Ordinance and thereby create and maintain a public nuisance, which, it knew or should have known, would expose the public and particularly plaintiff to an unreasonable risk of bodily harm; that said defendant carelessly and negligently obstructed plaintiff’s view of the sidewalk and the fuel oil hose by the storage of the trees and other merchandise upon the public sidewalk, and did violate the Ordinance and thereby create and maintain a public nuisance, when it knew or should have known that to do so would expose the public, and particularly plaintiff, to an unreasonable risk of bodily harm; that said defendant carelessly and negligently failed to provide adequate lighting of the sidewalk and did violate the Ordinance, when said defendant knew or should have known that to do so would create an unreasonable risk of bodily harm to the public and particularly plaintiff; that said defendant carelessly and negligently provided improper and dangerous lighting upon the sidewalk, in that said lighting cast deceptive shadows from the Christmas trees and did violate the Ordinance, when it knew or should have known that to do so would create an unreasonable risk of bodily harm to the public and particularly plaintiff; that said defendant carelessly and negligently channeled public pedestrian traffic on the public walkway where it was forced to come in contact with the fuel oil hose, when said defendant knew or should have known that to do so would create an unreasonable risk of bodily harm to the public and particularly plaintiff; and that said defendant negligently and carelessly failed to warn persons using the public walkway, and particularly plaintiff, of the presence of the fuel oil hose lying across the public walkway when it knew or should have known that such failure created an unreasonable risk of bodily harm to the public and particularly plaintiff.

The case was submitted to the jury on the theory of common law negligence, and not on any theory that the violation of the Ordinance created a nuisance, or that it created a new liability different from that imposed by the common law.

But appellant Schenberg contends that the Ordinance was not admissible in evidence because it was not designed to create a cause of action, and did not do so. Such is not the test of admissibility. The true test is that announced in the opinion of our Supreme Court in State ex rel. Wells v. Mayfield, 365 Mo. 238, 281 S.W.2d 9, loc. cit. 13, where the court said:

“ * * * it seems entirely clear under a multitude of authorities that the violation of a penal ordinance is evidence of negligence in a civil action for personal injuries, if the plaintiff was one of the class for whose benefit the ordinance was adopted, and if the ordinance was enacted to protect persons or property, conserve public health, or promote public safety. Such ordinances are not considered as creating a new liability, but merely as defining the duty already owed at common law to the public or the person injured.”

Floyd v. St. Louis Public Service Co., Mo., 280 S.W.2d 74, was an action for damages by plaintiffs for the death of their minor child, who was struck and killed while riding his bicycle in the public street. The action was against the owner of a parked truck and the owner and operator of the bus which struck deceased while passing said truck. Plaintiffs offered a city ordinance regulating the parking of motor vehicles and providing that a driver of an overtaking vehicle sound his signaling device. There was evidence that the truck had been parked in violation of the ordinance, and evidence that the bus driver did not sound his signaling device. When the offer was made, plaintiff’s counsel stated he did not intend to go to the jury or offer instructions based upon violations of the ordinance. The Court then sustained an objection to the offer. The Supreme Court reversed the judgment. The Court said ini 280 S.W.2d 74, loc. cit. 77:

“Plaintiffs now contend that the ordinance should have been admitted in evidence. With this we agree. It is well settled that, in an action based upon common-law negligence, an injured party may prove a violation of an ordinance as tending to prove negligence on the part of the defendant or in an effort to disprove the defense of contributory negligence. Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761; White v. Hasburgh, Mo.App., 124 S.W.2d 560; Hart v. Skeets, 346 Mo. 1118, 145 S.W.2d 143; McPherson v. Premier Service Co., Mo.App., 38 S.W. 2d 277.
“Any evidence offered by plaintiffs which tended to prove negligence on the part of the defendants in the respects pleaded, or want of negligence on the part of decedent, was competent and should have been admitted. There was evidence that the defendant Brewery Company had violated Section 1001.32(a) in parking its truck. Likewise, there was evidence that the driver of the bus did not sound his signaling device as required by a portion of Section 1001.53. The plaintiffs were entitled to have the jury know the provisions of this ordinance as evidence tending to prove that the conduct of the defendants in these respects was negligence. They were material upon the very issues upon which plaintiffs elected to submit the case to the jury. Moreover, each defendant contended that the deceased was guilty of contributory negligence in turning his bicycle into the right side of the bus. Proof that the defendants had violated the applicable sections of the aforementioned ordinance would be material upon the issue as to the alleged negligent conduct of the deceased under the circumstances.”

It is apparent that the ordinance in question, in the case at bar, was enacted in the interest of public safety and for the manifest purpose of facilitating the free and unobstructed use, in safety, of the public sidewalks. This appears from the fact that, (1) the amount of the occupation of the sidewalk permitted is required to be proportionate to the width of the sidewalk, (2) it restricts the occupation to the time when the abutting merchant is open for business, and (3) prohibits the use of more than one-half of the sidewalk for receiving or shipping merchandise, with the added proviso that such merchandise shall not be permitted to remain on the sidewalk for more than four hours. Plaintiff, as a member of the public using the sidewalk for the purpose for which it was intended, was within the class of persons for whose protection the ordinance was enacted. Under the facts developed at the trial, the evidence was material on the issue of negligence. The point raised is without merit. The further point that the ordinance should have been excluded for the reason that it was inflammatory and misleading will not be considered for the reason that no such objections were made at the time the ordinance was offered.

The case of Southwestern Bell Telephone Co. v. Rawlings Manufacturing Co., Mo. App., 359 S.W.2d 393, is cited by said appellant in support of its position. In that case, the Telephone Company sued to recover damages to a portion of its conduit beneath an alley brought about by a cave-in of the wall of an excavation which encroached on the alley. The excavation was made by a sub-contractor of a contractor, employed by the owner of the building to excavate for a basement under said building. Plaintiff introduced Ordinance 36721 having to do with removing the lateral support of a public street or alley by excavations alongside such street or alley; also Ordinance 41298 requiring a permit for such excavation work and Ordinance 30386 making such excavation work a misdemean- or, if done without authorization. The court held that it was error to admit these Ordinances for the reason that there would be no causal connection between the failure to secure a permit and the damage to plaintiff’s cable. The court stated, in 359 S.W. 2d 393, loc.cit. 399, “If a permit had been obtained, it is certain that this would not have prevented the wall from caving, and neither is there any showing that such a permit would have revealed the presence of the cables.” The case is not in point.

Appellant Schenberg also cites and relies on Corey v. Losse, Mo., 297 S.W. 32. In that action plaintiff, a minor son of a tenant, brought suit against the landlord for damages for personal injuries suffered when he fell through a defective part of a porch railing. The porch was in the exclusive possession of the tenant, and there was no contract obligation on the part of the landlord to keep the premises in repair. The action was based upon a city ordinance which provided that it was the duty of every owner, trustee or lessee of every tenement house to provide for and maintain the same in all parts in good repair. The court held that since there was no duty on the landlord at common law to keep the premises in repair, the city could not by ordinance create such duty in favor of one injured by reason of the defective condition of the premises, and that plaintiff, therefore, had no cause of action against the landlord. Clearly this case is not in point on the question presented by this appeal.

Schenberg also relies on the “sidewalk snow removal” cases, which hold there can be no cause of action against an abutting property owner by one injured by reason of the failure of said owner to comply with an ordinance requiring him to remove snow and ice. A case so holding is Russell v. Sincoe Realty Co., 293 Mo. 428, 240 S.W. 147. In that case the court draws a distinction between such cases and those where the party sought to be held took part in creating a dangerous situation and the ordinance defined a duty with respect to some obligation which the person already owed the public or the party injured. Where one fails to obey an ordinance requiring him to perform a public duty, he incurs a liability to the public authorities only. The “sidewalk snow removal” cases are of this kind. Wells v. Henry W. Kuhs Realty Co., supra. They are clearly not in point on the issues before us.

Appellant, Schenberg, assigns as error the giving of instruction No. 5. This was a verdict directing instruction, and required a finding “that such storage and display of merchandise added to the degree of darkness and that sudi added darkness, if so, obstructed a view of the sidewalk underfoot for persons in the ordinary use of said area of sidewalk at night time * * *.” Said appellant contends there was no evidence to support the hypothesis that the display of merchandise added to the degree of darkness.

An examination of the transcript shows there is no merit to this contention. It appears from the evidence that during the 1959 Christmas season, Schenberg- exhibited for sale Christmas trees in the area between the south side of its building and the north curb of Lafayette Avenue. The exhibit was on both sides of the sidewalk that runs through this area. It is nine feet from the north curb of Lafayette Avenue to the south edge of the sidewalk, and six feet from the north edge of the sidewalk to the south wall of the building of Schen-berg’s. The display encroached upon both sides of the sidewalk, leaving a passage way through the trees, according to plaintiff’s testimony, of from 2,½ to 3 feet wide. Mrs. Spencer, plaintiff’s witness, testified there were no trees actually standing on any part of the sidewalk, but there were tree branches leaning out over the sidewalk. She further testified, “The lighting wasn’t too bright and there was room for maybe one person to walk through leisurely, but two would have difficulty brushing against the branches of the trees.” The inventory of Schenberg’s at the time was roughly 1,000 trees, and for the most part they were stored in bins made from scaffolding. Some of the trees were leaning against the south wall of the building. They were different heights, some ranging from 6 to 10 feet. Mrs. Spencer testified that she was walking-west on the sidewalk in question, and first noticed plaintiff lying on the ground a little more than halfway between 39th Street and the rear end of the building. Mrs. Spencer then went to plaintiff and tried to-help her up. At that time Mrs. Spencer saw the hose stretched across the sidewalk. At another point in her testimony, Mrs, Spencer stated she saw the hose when she got close to plaintiff. She was then asked the following question. “Q. Would you-say the area where you saw Mrs. Grimes, had fallen, was any darker than any of the other dark spots in between the street lights?” Her answer was that the trees kept some of the light off the sidewalk, and made it darker.

Plaintiff testified that the front end of the store was well lighted, but as one went toward the rear it was very dark and dim.. At another place in her testimony, she stated that it was true there were lights on the side of the building, “but the Christmas, trees had them blocked. They were shadowed, I mean, there were Christmas trees. stacked up high on both sides of me, and' if there were lights coming through there, it was shadowed, it was dimmed.” She also stated “they (trees) take out the biggest part of the light that shines on the sidewalk.” “ * * ⅜ Sir, if there was any lights on, they were dimmed. It was very, very dark in the spot where I fell. * * * Well, if there was light on, what I am trying to get at, if there were lights on, on the building, they were very, very dim. I don’t know if they were on or off, but I do know that it was very dark where I fell. I couldn’t have seen the fuel oil hose with what I had to go through to get there.”

From the foregoing evidence it could be found that the Christmas tree display did reduce the visibility of the sidewalk at the point where plaintiff fell, and for that reason we rule against the contention urged.

[IS] The second complaint of Schen-berg’s against the instruction is that there was no evidence that the acts of Schenberg’s were the proximate cause of plaintiff’s fall and injuries. Said appellant’s argument on this point is based upon testimony given by plaintiff during her cross-examination wherein she stated, “Sir, I wasn’t looking right at my feet when I come through there, I was watching out for the trees and the other people, trying to make my way through there. I wasn’t looking at the ground, right at my feet, watching where I was putting my feet.” Said appellant then argues that in the light of this testimony no amount of illumination would have prevented plaintiff’s fall, hence the darkness caused by the trees could not be said to have been the proximate cause of plaintiff’s fall.

The fact that plaintiff was not giving exclusive attention to her feet or where she was placing them as she proceeded, and was at the time attempting to avoid contact with the trees and other people,, does not prove as a matter of law, that her range of vision would not, at the time, have been enlarged to the extent that she would have seen the hose prior to tripping over it, had there been more light at the place in question. We believe there was sufficient evidence from which a jury could reasonably find that the negligence submitted was a concurrent proximate cause of plaintiff’s injuries.

The next criticism of Instruction No. 5 is that it did not require a finding that the negligence of Schenberg’s was the “direct and proximate” cause of plaintiff’s injury,, thus permitting the jury to find for plaintiff even though, under the evidence, the negligence submitted may have been considered by the jury to be a remote cause and not the proximate cause of plaintiff’s injury.

The Instruction hypothesized the facts relied on by plaintiff as a basis of recovery. These facts were, the presence of the hose across the sidewalk; the maintenance of the Christmas tree display at the places shown by the evidence, which display added to the degree of darkness, which obstructed the view of the sidewalk to persons using the same during the night time; and knowledge on the part of Schenberg’s that the maintenance of the display after dark created an unreasonable risk of harm to pedestrians, in the ordinary use of the sidewalk, from foreign objects which might be left or placed upon the sidewalk by said defendant or others. The jury was then instructed to further find as a prerequisite to recovery, that “if you find that in maintaining such condition, if so, defendant, Schenberg’s 20th Century Supers,, Inc. was negligent and that by reason of such negligence, if any, plaintiff, Mildred Grimes, was caused to trip on the aforementioned fuel oil hose and was caused to fall and be directly injured thereby, if so, and if you find that she was not guilty of contributory negligence in any respect submitted to you in these instructions. * * * ”

It has been held many times that in submitting the issue of negligence, it is safer practice to modify the submission of causation by the use of the words “directly” or “proximately”. Slates v. Joplin Butain Gas Co., Mo., 315 S.W.2d 808; Stumpf v. Panhandle Eastern Pipe Line Co., 354 Mo. 208, 189 S.W.2d 223. However, if an instruction requires the finding of negligent acts which, in the nature of things, must have directly caused the injury, or necessarily formed a part of the efficient cause thereof,, the instruction cannot be held erroneous because it does not require the jury to draw the inference which the law itself draws therefrom. Giambelluca v. Missouri Pacific Railroad Co., Mo., 320 S. W.2d 457; Losh v. Ozark Border Electric Co-op., Mo., 330 S.W.2d 847; Stumpf v. Panhandle Eastern Pipe Line Co., supra; Knox v. Weathers,, 363 Mo. 1167, 257 S.W. 2d 912; Wilson v. Toliver, Mo., 305 S.W.2d 423; Creech v. Blackwell, Mo., 318 S.W.2d 342. And in determining whether the instruction falls within the exception we look only to the facts hypothesized and not to the evidence of the parties as suggested by appellant Schenberg. In our view, Instruction No. 5 does fall within the exception. If the specific acts hypothesized in the instruction were causative as the instruction required the jury to find, then they must necessarily have directly and proximately contributed to plaintiff’s injury.

Schenberg also complains that the instruction is erroneous “ * * * because it did not limit the duty of Schenberg to the exercise of ordinary care, but instead submitted an absolute duty.” The argument supporting this assignment goes no further than to state that “Nowhere in the instruction is the term ‘ordinary care’ used”, and refers to specifications 7(e) and 7(f) of its motion for a new trial as preserving the point for review. An examination of that portion of the motion for new trial reveals a complaint that the instruction is erroneous because it failed to use the words “in the exercise of ordinary care” in submitting Schenberg’s constructive knowledge of the unreasonable risk of bodily harm to persons using the sidewalk in the condition in which it was when plaintiff was injured. There is no merit to the point made. The Instruction required a finding that Schenberg created the condition on the sidewalk in question; that the display of merchandise added to the degree of darkness which obstructed a view of the sidewalk for persons using same during the nighttime; that said defendant in maintaining such condition was negligent and that by reason of said negligence plaintiff was injured. Under the law the fact that a dangerous condition exists has been regarded as sufficient to charge the person responsible therefor with knowledge of the probability of an injury being caused thereby. 65 C.J.S. Negligence § 5, loc. cit. 358; Hartman v. St. Louis-San Francisco Ry. Co., Mo.App., 280 S.W.2d 442. Since it is clear from the evidence that Schenberg created the condition which contributed to cause plaintiff’s injury, the requirement in said instruction that Schen-berg possessed constructive knowledge that said condition created an unreasonable risk of bodily harm to others was unnecessary.

The next point urged by appellant Schen-berg is that Instruction No. 5 is erroneous because it failed to set standards to guide the jury in determining the amount of added darkness caused by the trees necessary to constitute actionable negligence.

The instruction required the jury to find that the added degree of darkness obstructed the view of the sidewalk underfoot for persons in the ordinary use of the sidewalk at nighttime. In our judgment this was, under the facts and circumstances, a sufficient guide to the jury in resolving the issue.

Defendant Schenberg also maintains that it was error to require a finding that said defendant’s acts created an unreasonable risk of bodily harm without defining the term “unreasonable risk”. The words in question are words of ordinary connotation, which any juror would readily understand to be a risk which a reasonable person would recognize as involving danger of injury to others. In our opinion, it needed no definition. It was the duty of said defendant to offer an instruction defining the words if it was felt the words were not clear and needed definition.

Finally it is urged that the giving of Instruction No. 5 was error for the reason that it included,, as a prerequisite to verdict for plaintiff, a finding that Schen-berg knew, or should have known, that the maintenance of the display of merchandise upon the public sidewalk after dark created an unreasonable risk of bodily harm to members of the pedestrian public in their ordinary use of the sidewalk. The point made is that it injected into the case the issue of danger to third parties, when the issue, properly before the court,, was whether the condition shown was dangerous to plaintiff. An examination of the transcript reveals there was no such specific objection made prior to the submission of the case to the jury, or in the motion for new trial. For that reason the matter is not properly before us for decision. Civil Rule 79.03, V.A.M.R.; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710.

Finding no reversible error in the record, the judgment is affirmed.

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


text:
    Donald Berten BENJAMIN, (Plaintiff) Respondent, v. Betty Jean BENJAMIN, (Defendant) Appellant.
    No. 31442.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.

      Joseph J. Dolgin, O’Connor, Dolgin & Godfrey, and John P. Ossenfort, Clayton, for appellant.
    Walter M. Clark, Bruce E. Woodruff, Richard J. Sheehan, Armstrong, Teasdale, Roos, Kramer & Vaughan, St. Louis, for respondent.
   L. F. COTTEY, Special Commissioner.

Appellant-wife and respondent-husband have been twice married and twice divorced. The decree entered on the latter occasion, September 24, 1958, awarded to appellant the custody of the couple’s two children, Deborah and Michael, aged five and three, respectively. The parties themselves were in their middle twenties at the time. Three years after the divorce respondent filed a motion to modify the decree to the end that the custody of the children might be awarded to him. In the meantime each of the parties had married again, each had begun the rearing of a new family, and each was maintaining an adequate home. Respondent’s motion particularized three basic complaints against appellant: 1st, her general indifference to the physical and moral well-being of the children ; 2nd, her refusal to accord respondent the unhindered enjoyment of his rights of visitation with the children; and 3rd, her continuing neglect of an orthopedic defect with which young Michael had been afflicted since birth. Appellant’s answer was a general denial of the charges. The trial below resulted in an order sustaining the motion and awarding the custody of the children to respondent. This appeal followed.

Appellant makes five assignments of error, although not in the order in which we shall discuss them.

Point 1: That there was no sufficient showing of a change of circumstances occurring since the entry of the original decree to warrant any modification of its custody provisions, and no sufficient showing that the children’s welfare would be prompted by transferring their custody to respondent. We readily agree with appellant that respondent has the burden of proving both of those issues. Simmons v. Trenter, Mo.App., 327 S.W.2d 936, 939; Samland v. Samland, Mo.App., 277 S.W.2d 880, 881; Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 196. And, after examining the record, we conclude that he has done so. The litigation was carried on for the space of approximately a year with evidence being received on three separate occasions during that period. The record of it runs to some 200 pages. It is principally related to that period of time between the date of appellant’s divorce and her marriage to her present husband insofar as her alleged indifference to the children’s moral environment and general welfare is concerned, but it goes beyond the latter date insofar as her alleged obstruction of respondent’s visitation rights is concerned and to the extent that it hears on the charge that she has imperiled Michael’s health by her persistent neglect of his orthopedic problem. The testimony follows the familiar pattern of accusation and denial, crimination- and recrimination, all in irreconcilable conflict. We think no useful purpose can be served by recounting it here to the further embarrassment of the parties and their families. Suffice it to say that the issue can only be resolved by attributing the virtue of veracity to one set of witnesses and denying it to the other. If respondent’s evidence is to be believed, then he has substantially supported the principal grounds of his motion and has established both a material change of circumstances and the likelihood that the award of the children’s custody to him will be in their best interests. We are unable to say that the trial court abused its discretion in reaching that conclusion. The applicable rule for our guidance in this situation is stated in Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364, 367, in this language: “In the case at bar, the trial court heard the evidence. He saw the parties and had an opportunity to form an opinion regarding their character and fitness. In such a situation, the finding of the trial judge should not be lightly disturbed. In fact, such finding should be deferred to, unless it is apparently in conflict with a clear preponderance of the evidence and discloses a manifest abuse of judicial discretion.” To the same effect, see: Long v. Long, Mo.App., 280 S.W.2d 690, 694, and Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889, et seq. We must, therefore, rule this point against appellant.

Point 2: That the court erred in denying appellant the opportunity to qualify her daughter, Deborah, as a witness to testify on her behalf. That problem arose and was disposed of in this manner: On the last day of the trial Deborah was present in court. She was then eight years and ten months old. Appellant called her as a witness and offered to qualify her by showing, presumably, that she was “capable of receiving just impressions of the facts” and “of relating them truly,” thereby avoiding the interdiction of Sec. 491.060. The court refused to permit it, declaring it to be “a matter within this court’s discretion.” He added, however, “I will permit either of these young children, either Deborah or Michael, if it is desired, to talk alone in chambers with me.” Counsel for respondent approved that proposal. Counsel for appellant inquired whether a reporter would be present so that the examination in chambers would be preserved in the record and, upon being informed that none would be, asked and was granted leave to consult with his client. A recess was thereupon declared. The record is silent as to the details of what happened during the recess, but upon resumption of the trial the court announced that during the recess he had talked privately to Deborah in chambers. He did not divulge what was said in the course of that private examination. His ruling as to the witness’s incompetency, however, remained unchanged.

Sec. 491.060 does not render a child under ten years of age absolutely incompetent as a witness, but only inferentially so. The adverse inference arising from his youth may be dispelled by a showing that he has “‘(1) Present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observations.’ ” Baker v. Baker, Mo.App., 319 S.W.2d 11, 16. Thus it is the duty of the trial court to determine whether a child is competent before permitting it to testify, State v. Groves, Mo., 295 S.W.2d 169, 172, and by the same token it is equally his duty to determine by a proper voir dire examination, that the child is incompetent before precluding it from testifying. Litzkuhn v. Clark, 85 Ariz. 355, 339 P.2d 389, 392; People v. Delaney, 52 Cal.App. 765, 199 P. 896, 900.

We conclude that the trial court’s refusal to permit appellant to attempt to qualify Deborah as a witness was error, and not the less so because of his well-intentioned examination of the child in chambers, for that examination dehors the record is tantamount, in legal contemplation, to no examination at all, there being no means by which it can be judically noticed or reviewed, and the law, as we are anciently advised, having no more regard for things which do not appear than for things which do not exist. It does not follow, however, that the error is reversible in the light of the special circumstances that attended it in this case. This, for two reasons: In the first place, although the private examination of the child was a legal nullity, it was not a factual one. It did take place and it evidently satisfied the court that the child was not competent to testify. The point, however, is that it took place with appellant’s full knowledge that it was to be conducted in chambers and off the record, but she made no objection to it, either before it began or after it was concluded. We can only regard her failure to object when the opportunity presented itself, either at the time the examination was proposed or at the time its result was announced, as a waiver of the claimed error. Brown v. Thomas, Mo.App., 316 S.W. 2d 234, 237. Indeed, it may be assumed that the examination was undertaken with appellant’s approval, not only because she made no objection to it but because the court had proposed it only in the event “it is desired,” and we cannot suppose that it would have been conducted contrary to her desire. In that case the error would have been invited. “It is too well settled to require citation of authorities that a party will not be heard to complain of alleged error in which, by his own conduct at the trial, he joined or acquiesced.” Taylor v. Cleveland, C, C. & St. L. Ry. Co, 333 Mo. 650, 63 S.W.2d 69, 75. And in the second place, at no time did appellant offer to show what Deborah’s testimony would have been had she been permitted to give it. It was incumbent on appellant to make that showing. “Although the witness was erroneously ruled incompetent for all purposes, a reversal should not follow in the absence of an offer made as to what the witness would testify to, and such offer would have to show the testimony to be competent and material under the pleadings and issues in the case.” Dempsey v. McGinnis, Mo.App, 249 S.W. 662, 665; Fowler v. Sone, Mo.App, 226 S.W. 995, 997. The point must be ruled against appellant.

Point 3: That the court erred in admitting the testimony of Witness Barn-holtz on the question of Deborah’s competency to testify. It is unnecessary to relate the testimony complained of, or to comment on it beyond saying that it was all admitted “subject to the objection” whereas it should all have been excluded upon the objection. In the light of our ruling on appellant’s Point 2, however, the error is immaterial. This assignment is purely incidental to appellant’s primary complaint of error in the court’s ruling that Deborah was not a competent witness. As we have pointed out, appellant waived her objection to, or condoned, that ruling, and it follows that nothing which may incidentally have influenced it can rise to the dignity of substantial error. This point must likewise be ruled against appellant.

Points 4 and 5: These assignments, which we shall consider together, both relate to a so-called “child study report” prepared by Witness Barnholtz, a social worker attached to the Court of Domestic Relations. The report is a 23-page gallimaufry of hearsay conversations with the parties and the children and other relatives, the investigator’s personal opinions as to their attitudes and behavior, and a variety of sociological pronouncements and psycho-analytical evaluations, from which the conclusion is reached that “the children are emotionally deprived and neglected” and “it would be in the best interests of Deborah and Michael Benjamin to be placed in the custody of their father.” Appellant complains (a) that there is no statutory authority for the preparation of such a report in cases of this kind, and (b) that it is hearsay. We agree. It is pure hearsay, and not only is there no statutory authority for its preparation, we think its reception could not be countenanced as an exercise of the court’s inherent equitable powers. But appellant’s objection to it is made for fhe first time in her motion for new trial. She stood mute when the investigation was ordered, co-operated in it to the extent of submitting without protest to interrogation by the investigator, and made no complaint when the report was filed. Her present objection comes too late. Nevertheless, if the record disclosed that this case had been decided on the strength of that report we would seriously consider whether we ought not reverse it in the exercise of our discretionary powers under Rule 79.04, V.A.M.R. But the record does not warrant that conclusion. When the report was offered in evidence it was summarily excluded on appellant’s objection. Miss Barnholtz, when she was on the witness stand, was not interrogated with respect to the contents of the report, or as to any incident related or any conclusion expressed in it. The evidence introduced at the two hearings held prior to the preparation of the report warranted the judgment without regard to the report. The judgment itself makes no reference to it. The court read it, of course, but the only indication that he “considered” it at all lies in the fact that he made a reference to it in his memorandum opinion, and then only to the extent of saying that it “confirmed the court’s view of the evidence adduced at the hearings” held previously. Whatever confirms an opinion already reached cannot be said to have induced it. We are unable to say, therefore, that the report prejudiced any substantial right of appellant’s. Accordingly, we rule Points 4 and 5 against her.

It follows that the judgment should be affirmed.

The Special Commissioner so recommends.

PER CURIAM.

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

The judgment is accordingly affirmed.

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


text:
    Jeanette KILLOREN, Plaintiff-Respondent, v. O’Neill J. KILLOREN, Sr., Defendant-Appellant.
    No. 31393.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 14, 1963.

      Schwartz & Ely, Robert C. Ely, Richard C. Wuestling III, St. Louis, for appellant.
    David G. Dempsey, Clayton, Robert E. Ballman, Oliver R. Farrell, St. Louis, for respondent.
   L. F. COTTEY, Special Commissioner.

This action has been brought by a tenant against her landlord to recover damages for personal injuries sustained by her in a fall allegedly caused by the landlord’s negligence in permitting a dangerous condition to exist in a portion of the leased premises over which he retained control. The answer was a denial of the charge and a plea of contributory negligence. At the conclusion of plaintiff’s case defendant elected to stand on his motion for a directed verdict. Plaintiff’s evidence, then, established these facts:

Defendant O’Neill J. Killoren, Sr., owned a duplex housing unit in St. Louis. He resided with his wife and son in one of the units; his father and his sixty-six year old mother, the plaintiff herein, occupied the other as his tenants. Beneath plaintiff’s apartment there was a basement which defendant had reserved the right to use as a workshop for his son, and it is admitted by the pleadings that he was responsible for its maintenance although plaintiff was authorized to use it also, and in fact did use it for the storage of clothing and other household effects. On a night in June, 1961, defendant’s son went to the basement to use the workbench there and, in the course of doing so, ignited some gasoline with which he was working and set fire to the workshop area. Plaintiff and her husband were in their apartment at the time. They smelled the fumes, saw the smoke, and heard the boy cry out that the basement was afire. Plaintiff went immediately to defendant’s apartment to inform him of the fact, simultaneously dispatching her husband to a nearby fire alarm signal box. Defendant dragged a garden hose into the basement in an attempt to extinguish the blaze and, in a few minutes, was joined there by the St. Louis Fire Department. Through their combined efforts the fire was brought under control. Meanwhile plaintiff returned to her apartment, raised the windows to clear out the smoke, and seated herself in the kitchen near the basement door. She was aware of the activities of her son and the firemen in the basement although she did not go down to watch them.

Promptly after the firemen’s departure defendant set about to clean up the debris. The evidence as to what he did in that connection is derived from certain portions of his deposition which plaintiff read in evidence as a part of her own case. Insofar as that evidence is uncontradicted she is, of course, bound by it. Richeson v. Roebber, 349 Mo. 132, 159 S.W.2d 658, 659, 141 A.L. R. 1. It establishes that the debris consisted of burnt clothing and other rubbish that had been in or near the workbench area and fragments of burnt asphalt tile with which the basement floor was covered, all saturated with water. The workbench stood some thirty feet from the basement stairs. Between the two, approximately in the middle of the floor, there was a sewer drain, and at the foot of the stairs there was a light, the only light in the basement, or the only one in operable condition after the fire, so far as the record discloses. Defendant used a broom to push the debris over to the drain so that the water from it would be diverted into the sewer, and moved it thence on to the foot of the steps to be scooped up and carried out. That portion of the operation completed, he then shoveled the accumulation of debris into a two-handled galvanized wash tub and began carrying it up the basement stairs and out to the trash can at the rear of the duplex where he emptied it. He had made “four or five trips” out to the trash can in this manner, each occupying an interval of “three or four minutes,” without delay or deviation from his purpose, when the business was interrupted by the accident out of which this lawsuit has arisen. He was returning for another load — the task “wasn’t completed, I still had more to take out”— when he heard his mother screaming. He found her lying at the foot of the stairs. There was still “a considerable amount of smoke” in the basement at that time.

In only one detail does plaintiff’s testimony conflict with defendant’s account of the incident. She says quite frankly that from her position in the kitchen, near the outside basement entrance, she could hear her son cleaning the basement, heard “him shoveling down in the basement,” knew “he was picking stuff up” and carrying it out, heard him make “three or four” trips “back and forth up the steps” in the course of doing so; but was unable to hear him emptying the rubbish because she was indoors and “it’s quite a long walk before you get to the trash cans” at the rear of the building. Despite the fact that each tubful had to be carried up the basement stairs and “quite a long walk” back to the trash cans to be emptied, plaintiff was positive that the interval between each trip except the last one was only “thirty seconds.” To that extent, if her estimate is not palpably incredible, defendant’s version may be said to have been contradicted.

On the last occasion when defendant left the basement with a load of rubbish plaintiff testified he was gone “longer than the other occasions, I’d say about four or five minutes.” She “supposed he was finished.” “I just sort of waited and I didn’t hear him come back and then I decided to go down and take a look,” she said. “I wanted to go down and see what extent the damage was, I was curious.” So, “I decided to go and I didn’t say nothing to nobody.” At the foot of the stairs she stepped off into the muck that remained and slipped and fell. She “was excited and anxious to get down” and couldn’t recall whether she held the banister or not. There was smoke in the stairway and basement, she recalled, “but it wasn’t too much that I couldn’t see where I was going, but still it wasn’t as if it was clear, either.” The smoke “did bother me to a certain extent but it didn’t blind me, I could see where I was going; * * * I wasn’t blinded completely.” Asked “whether or not the lights were on down in the basement,” she replied, “Well, the light right near the steps I went down, yes, sir, it was on.” Nevertheless, she didn’t see the debris until she had fallen in it. She then discovered that it consisted of “Little burned particles, all sooty and black, mixed with the water he had pushed”; that “it was like soapsuds”; that it covered an area “about two foot in diameter”; that “it wasn’t too deep,” perhaps “a quarter of an inch or less”; that it blended deceptively with the dark tile on the basement floor. She “didn’t know it was there”; in fact, she explained, “I didn’t look for anything to be at the steps that way, never was ordinarily.”

Defendant’s motion for a directed verdict having been overruled, the case was submitted upon that evidence. The jury’s verdict was in plaintiff’s favor and defendant has appealed.

Plaintiff’s verdict-directing instruction opened with this preamble: “The Court instructs the jury that under the law of this State, a landlord owes his tenants the duty to exercise ordinary care to keep those parts of the leased premises controlled by the landlord in a reasonably safe condition for the use and occupancy of his tenants.” It then hypothesized the fire, and defendant’s clean-up operation in the course of which “he moved some of the wet, burnt debris over to the floor at the foot of the stairs leading down into the basement” where none had been before, and eventually submitted the issue of negligence in this language, italics supplied: “That O’Neill J. Killoren, Sr., then left the basement when some of the wet, burnt debris was still upon the floor at the foot of these stairs; and that by reason of the presence of the wet, burnt debris then on the floor at the foot of those stairs, such part of the basement was slippery, dangerous and not reasonably safe for walking upon, if you so find; and that O’Neill J. Killoren, Sr., then knew, or in the exercise of ordinary care should have known, that the floor at the foot of those stairs was slippery, dangerous and not safe for walking upon, if you so find; and that O’Neill J. Killoren, Sr., then failed to exercise ordinary care for the safety of his tenants by allowing the aforesaid unsafe condition to exist, if you find it was unsafe, and that he was thereby negligent”; and that plaintiff was injured as the result thereof, then “your verdict should be in favor of the plaintiff.”

We are familiar with the rule that “ * * * a landlord has the duty to use ordinary care to keep those portions of the premises over which he retains control in a reasonably safe condition. * * * ” Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 493. And we are familiar with its corollary, that “The landlord is not an insurer of the safety of persons using ⅜ * * (the portion of the premises) within his control, and he is required only to use reasonable care to keep such places in a safe condition. * * * ” (Parenthesis ours.) 52 C.J.S. Landlord and Tenant § 417, p. 30. In this case the evidence was sufficient to warrant a finding by the jury that the muck on the basement floor constituted a “dangerous condition”; but the nub of the inquiry is whether, under the circumstances,, defendant can be said to have allowed it negligently “to exist,” within any rational concept of that term. It is unnecessary to cite authority for the proposition that, in determining this question, we must (a) view plaintiff’s evidence in the light most favorable to her, within the limits of common sense and ordinary understanding, (b) allow her the benefit of all reasonable inferences to be drawn therefrom which are not in conflict with her theory of the case, and (c) refrain from interfering with the jury’s verdict unless that verdict is so palpably unreasonable and unwarranted that reasonable minds can reach no other conclusion about it. Mindful of those principles, we have been at some pains to set out the evidence in detail, using, where conciseness would allow, the exact language of the witness. Viewed leniently, but without emotional distortion, we cannot escape the conclusion that it wholly fails to sustain plaintiff’s charge. Nowhere does it appear, nor may it be inferred, that defendant either delayed the commencement of his clean-up operation or dawdled in completing it. On the contrary, the evidence affirmatively establishes that he went about it with commendable diligence and dispatch. The rule admonishing us to take a favorable view of plaintiff’s evidence stops short of suggesting that we close our eyes to reality. It was a physical impossibility for the rubbish to be removed in a single load and, by the same token, an inescapable necessity that some of it should be left behind during the interval required for the disposal of the remainder. Surely it cannot be said, on any rational basis, that a landlord has negligently allowed a condition “to exist” during the very time he was exerting every reasonable effort to remove it. Any contrary holding would impose on him a burden considerably more onerous than the duty to use ordinary care and would, in fact and effect, make him an insurer of his tenants’ safety. That, the law does not sanction.

Plaintiff insists, however, that we must consider one other aspect of defendant’s clean-up operation; specifically, his act of pushing the debris over to the foot of the basement steps for loading purposes. By collecting it there, rather than at some other unspecified point in the basement, plaintiff complains that defendant created a dangerous condition and then “walked away from it.” She says he thereby invited the accident, whenas he could as easily have prevented it by pushing the debris “on further to a more remote area of the basement for eventual removal.” That conclusion, we may observe in passing is not necessarily compelled. The assumption is at least equally valid that plaintiff’s curiosity, having prompted her excited descent into the smoke filled basement, would thereafter have led her into its remotest recesses and ultimately to the self-same mischance. Nor do we detect any failure on defendant’s part to exercise ordinary care in selecting the base of the stairway as the point for assembling the litter, where the light was, and where its loading would consequently be facilitated and its removal expedited. And where, incidentally, its presence could most easily be detected by anyone entering the basement in his absence, unlikely as that must have seemed at the time. More directly to the point, however, is the fact that creation of the dangerous condition, although alleged as a ground of negligence against defendant in the petition, was not submitted as an issue to the jury, and, therefore, must be regarded as abandoned. True, the act of pushing the debris over to the steps was hypothesized in an early part of the instruction, just as the fire itself was, but neither the fire nor the temporary disposition of the debris in the stairway area was characterized as having been negligently brought about, nor was there any intimation that either of those occurrences was considered as constituting negligence, nor was there any direction to the jury to find that either did constitute negligence. Both were treated as mere preliminary matters which led up to, and culminated in, the specific charge of negligence that was submitted, to-wit, “allowing the aforesaid unsafe condition to exist." (Emphasis ours.) At that point, for the first and only time, the instruction hypothesized defendant’s failure to exercise ordinary care for plaintiff’s safety; it pointedly submits that he “then failed” (emphasis ours) to do so, that is, after the occurrence of the recited preliminaries and, in point of fact, after he had “left the basement.” His negligence is postulated solely on what occurred during his absence and because of his absence. That is the time when, and the reason why, he allowed the condition “to exist”; that, as plaintiff says in her brief, is when he “walked away from it.” We rule, therefore, that the issue of defendant’s alleged negligence in creating the dangerous condition has been abandoned.

It is unnecessary to discuss defendant’s point that plaintiff was contributorily negligent as a matter of law.

For the foregoing reasons the judgment should be reversed.

The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion of L. F. COTTEY, Special Commissioner, is adopted as the opinion of this court. The judgment is reversed.

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