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    STATE of Missouri upon the relation and to the use of Earl WILLIAMS and Pauline Williams, and Earl Williams and Pauline Williams, Plaintiffs-Respondents-Appellants, v. FELD CHEVROLET, INC., a Corporation, Defendant-Appellant-Respondent.
    Nos. 31861, 31862.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.

      George F. Kosta, Morris E. Stokes, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for Earl Williams and Pauline Williams.
    Norman Bierman, Stuart M. Haw, Jr., Anderson, Gilbert, Wolfort, Allen & Bier-man, St. Louis, for Feld Chevrolet, Inc.
   RUDDY, Judge.

Plaintiffs brought this action in six counts against Louis G. Berra, Constable of the Magistrate Court of the City of St. Louis; Maryland Casualty Company, as surety for said Louis G. Berra; M & M Auto Road Service, Inc.; Walter E. Reit-man, doing business as Reitman Auto Painting Company and Feld Chevrolet, Inc., to recover damages for the loss of their 1956 Bel Air Chevrolet automobile and its contents. During the trial plaintiffs dismissed their action against the first three named defendants. The jury returned a verdict in favor of plaintiffs and against defendant Feld Chevrolet, Inc., in the sum of $1400 and in favor of defendant Walter E. Reit-man. The trial court sustained the motion of defendant Feld Chevrolet, Inc., for a new trial on the issue of liability only but denied its motion for judgment in accordance with its motion for a directed verdict. Plaintiffs’ motion for a new trial as to Count II of their petition was denied. Plaintiffs appealed from the order of the court sustaining the motion of defendant Feld Chevrolet, Inc., for a new trial on the issue of liability only and from the denial of their motion for a new trial as to Count II of their petition. Defendant Feld Chevrolet, Inc., appealed from the action of the court denying its motion for judgment in accordance with its motion for a directed verdict. The only parties involved in these appeals are the plaintiffs and the defendant, Feld Chevrolet, Inc. Plaintiffs contend they made a submissible case of conversion under Count II of their petition and that the trial court erred in refusing to instruct on that issue. Defendant contends plaintiffs did not make a submissible case of conversion and did not make a case on the theory submitted, namely, specific negligence. A determination of these contentions requires a narration of all the pertinent evidence.

On December 20, 1957, defendant obtained a judgment against the plaintiffs in the amount of $188.88 and costs in the Magistrate Court of the City of St. Louis, Missouri. It is admitted by plaintiffs that the judgment was not satisfied and that nothing had ever been paid on said judgment. It is admitted that on October 22, 1958, a levy under an execution, based on the aforesaid judgment in the Magistrate Court, was legally and lawfully issued. It is the happenings that took place during and following the enforcement of this execution that form the basis of plaintiffs’ cause of action.

Plaintiffs were the owners of a 1956 Bel Air Chevrolet automobile and on January 16, 1959, this automobile was parked on the street in front of their apartment at 4957 Washington Avenue, in the City of St. Louis. On the aforesaid date, around 8:15 A.M., Stuart M. Haw, Jr., attorney for defendant, went to 4957 Washington Avenue in the hope of finding plaintiffs’ automobile. Finding the automobile parked on the street, he called Bert L. O’Brien, who was a Deputy Constable of the Magistrate Court (hereinafter referred to as the Constable) and who was called as a witness by plaintiffs. After a while the Constable arrived and thereafter the Constable notified the Police Department that he was about to take the aforesaid automobile under the execution which he had. Shortly after calling the Police Department a policeman arrived and the Constable, in the company of the policeman, knocked on the door of plaintiffs’ apartment and rang the door bell but received no response. The Constable left a copy of the execution papers, together with a note in his own handwriting, stating where the automobile was to be taken, in what he thought to be the mailbox for the apartment of the plaintiffs. The automobile was seized by the Constable under the execution to satisfy the judgment and taken into custody and possession by him. The Constable told Mr. Haw, the attorney, to make arrangements for the towing of the automobile. Thereupon, Mr. Haw telephoned the M & M Auto Road Service, Inc., for a truck to tow the car. Upon arrival of the tow truck, the operator thereof “forced back” the left front window “just enough to get that [a] coat hanger down there to pull up the latch” and opened the door of the automobile. Because the car was locked the Constable instructed the driver of the tow truck to break the ventilator window so as to get into the car. In explaining how he and the driver gained entry into the car, he said “we just bludgeoned it” enough to open the door. The ventilator window opened and closed by means of a crank. He said the glass in the window was broken, later stating it was cracked. The Constable stated that his office had no garage or other place to store the automobile and he asked Mr. Haw where he wanted the car to be stored. Mr. Haw told him it could be taken to the used car lot of the defendant at the corner of Manchester and McCausland Avenues in the City of St. Louis. After receiving a note from Mr. Haw showing the address of the used car lot of the defendant, the Constable directed the driver of the tow truck to take the car to the aforementioned used car lot. He said he had the car taken there because he had orders that it was to be stored for thirty days. Through some misunderstanding the operator of the tow truck took the automobile to a lot operated by defendant in Maplewood, Missouri, and upon arrival there was instructed to take the car to the used car lot of defendant at Manchester and McCausland Avenues, which he did.

The afternoon of January 16, 1959, the day the car was taken, the Constable drove to the used car lot at Manchester and McCausland Avenues and saw the automobile. On this occasion he saw no key in the ignition and said the license plate was on the car. He saw two signs on the lot, one facing McCausland Avenue and one on Manchester Avenue, apparently indicating it was a used car lot. He did not check the doors of the car to see if they were locked, nor did he inspect the left ventilator window. There was a small building on the used car lot in which he said there was a desk and a telephone. He had no conversation with, nor did he give any instructions to, any employee of the defendant relative to the care of the automobile. He did not authorize the making of a key to fit the ignition and no one asked him for authority to make such a key. He did not place anything on the car indicating it was property in the custody of the law. At no time did he look into the trunk of the automobile and, therefore, made no inventory as to its contents. The Constable never saw the automobile again and had no further dealings relative to it until he received a letter on March 6, 1959, from Mr. Haw informing him the automobile had been stolen.

The plaintiffs testified they were the owners of the automobile in question and that on the morning of January 16, 1959, they found their automobile was missing and was not in the place it had been parked by Mr. Williams, one of the plaintiffs. Neither plaintiff has seen the car again since it was parked by Mr. Williams on the 15th of January, 1959. Neither of the plaintiffs had given permission or consent to any person to remove the automobile from the place where it had been parked and they had not been notified by anyone concerning the proposed movement of the car away from the place where it had been parked.

Plaintiffs in their testimony described the personal property which they said was in the trunk of the automobile at the time it was taken into custody by the Constable. Mr. Williams in his testimony said that he did not inform or write any letter to anyone at defendant’s office about the personal property he said was in the trunk of the automobile at the time it was taken. Mrs. Williams testified that on January 30, 1959, she wrote a letter to defendant, addressed to Mr. Wilson, evidently inquiring about the automobile and admitted that she made no mention in the letter of any personal property being in the trunk of the automobile. Plaintiffs said they made a claim for a loss by theft of their automobile against their insurance carrier and received a check for a theft loss in the amount of $1250 payable to themselves and the Universal Match Credit Union. Plaintiffs through their attorneys stated to the court that they had no actual personal knowledge of the theft of the car but that they did not contest the contention of the defendant that the automobile was stolen from the Reitman premises, which theft will be more fully discussed hereinafter.

On cross-examination, Mrs. Williams admitted that plaintiffs received a letter from the law firm representing the defendant in which plaintiffs were told that their automobile had been seized by the Constable of the City of St. Louis pursuant to an execution issued to collect a judgment against plaintiffs in favor of the defendant. Mr. Williams testified he never did find the execution and the note that the Constable said was left in the mailbox. However, he said he learned from the Police Department on the day the car was taken that it had been picked up by the Constable and was told where it had been taken.

Walter Reitman was called as a witness by plaintiffs and testified that he conducted an auto body and painting shop at 2204 Forest Avenue in the City of St. Louis, Missouri, and that his business was known as the Reitman Auto Painting Company. He was not connected with or employed by defendant. He conducts his business in a one-story concrete building on the east side of the street, the west wall of which is about six feet from the public sidewalk. On the west side of the building was an entrance with an overhead door through which vehicles may be driven into the building, and there was a smaller door at the rear of the building where vehicles could be driven out onto a cinder lot. This lot was to the rear of the building and was not paved but was composed of dirt and cinders. From this lot one could drive northward approximately 75 or 100 feet onto Bruno Avenue. On reaching Bruno Avenue a left turn would be made in order to reach Forest Avenue. Bruno Avenue at the point where one would emerge from the lot is a dead-end street immediately east thereof. This area to the rear of Reitman’s building is not fenced or enclosed and is readily accessible to persons in the vicinity. On the south end of the front wall of the building there is a small door that leads into a small office. Reitman knew that defendant had a used car lot at Manchester and McCausland Avenues, which was a distance of one block from his business property. He was well acquainted with Mr. Maguire and Mr. Sherman who operated the used car lot for defendant. He said he dealt with them “practically every day.” On January 16, 1959, one of these two men called Reitman about the Williams’ car and told him that the defendant wanted “to get it off the lot a day or two.” He asked the caller whether or not he could put the car in the back of his premises and he was told that they did not care just where he placed it. Reitman testified, “then the porter came up and parked it in back. That’s the last I know of it, other than being there.” He said that inasmuch as he had no work to perform on the car, he was not interested in its description. He knew it was the porter who delivered the car because this porter had previously brought cars to and taken cars from his building. He had no conversation with the porter at the time the car arrived. The car was placed on his premises at the rear of the building in which he operated his business. When Reitman was asked if a key was delivered with this automobile, he answered, “That I can’t remember. We have a practice when there is cars — we have too many to put in the shop, the older ones then we may lock up in the back and bring the key in, but this particular case we had no reason to move the car, we had nothing to do with it, so if there was a key this same fellow that delivered it may have thrown it on the desk, but I never put them up with the surplus sets of keys, best way I can explain it. I don’t remember anything about a set of keys.” He was never told who owned the car and said he had “nothing to do with” the automobile. He was promised no pay and received no pay for letting defendant put the car on his premises. Reitman said the car was never on the inside of his building and that it had been on the lot to the rear of his building for approximately three weeks before it was found to be missing. Thinking the defendant got the car, he called down to “either Maguire or Sherman * * * and asked him if they got the car, and they said, ‘No.’ ” He then told the person he was talking to that the car was no longer on the rear lot. He said in order to gain access to the rear lot where the car was placed, you had to go through the doors of his building or go around the block or go through one of the adjoining businesses.

Reitman remembered talking to Lewis R. Corbet, who was the Finance Manager of defendant, but he was not sure when he first talked to him. He thought Mr. Haw’s face looked familiar to him. He had a “faint recollection” that Corbet came to his place of business and was there about two or three minutes and left. This was after the car was missing. He did not remember that a police officer was with Corbet. He did not remember Corbet telling him that the automobile was levied or executed on by the Constable. He recalled no such conversation. He did not remember the license plate or the key to the automobile being in his office and said: “I said the fellow brought it up could have thrown it in the office; he brought cars up before and throwed it in the office. The car was not touched. I couldn’t tell you the contents or couldn’t tell you nothing about it.”

Lewis R. Corbet was called as a witness by plaintiff and testified that at the time of the occurrence in question he was the Finance Manager for the defendant company. On January 16, 1959, he saw the 1956 Bel Air Chevrolet owned by plaintiffs on the used car lot at Manchester and McCausland Avenues. He had an ignition key made for the automobile in defendant’s shop so that it could be moved without the necessity of being towed each time. He said there was only one key made at the time and that there would be no occasion to make more. He said Maguire and Sherman were the co-operators of defendant’s used car lot, describing it as a small lot limited to 15 or 16 cars with a small former filling station building on the lot. He gave the ignition key to Maguire. He said the key was attached to a little metal disk with a cardboard insert on which he thought he wrote “Earl Williams ’56 Chevrolet.” He said the last time he saw the key “it was on Mr. Reitman’s keyboard,” which was on the day the car was stolen, when he visited Reitman’s place with a police officer. This occurred approximately three weeks after he first saw the car on January 16, 1959, on the used car lot. On January 16, 1959, he inspected the car and thought he had examined the contents of the car. He told Maguire that he wanted the car placed in storage some place and asked Maguire to suggest a place. He said Maguire suggested Reitman’s and that Maguire made the arrangements with Reitman for storage of the car. Either that day or the next day he visited Reitman’s place of business and had a conversation with Reitman concerning ownership of the automobile. He thought the car was in Reitman’s shop when he saw it but of this he was not certain. He did not tell Reitman where on his premises to place the car. He told Reit-man the circumstances surrounding the car and said that he did not lead Reitman to believe that the car belonged to the defendant company. He did let him know the car was under a court order. He said that neither he nor anyone at his direction notified the Constable’s office about the removal of the car to Reitman’s premises or about the making of the key to fit the automobile. Corbet had never been to Reit-man’s place of business before and had no knowledge of the physical layout of the premises. However, he knew that Reit-man had done auto body painting and other work for the defendant company. He said he ordered the car moved to Reitman’s place for safekeeping and so as to separate it from the cars that were on the used car lot for sale. He had never heard of an automobile being stolen from Reitman’s place and to his knowledge Reitman had a good reputation. He said, because of this, he believed Reitman would take care of the car and had no reason to believe otherwise.

Corbet reported the theft of the automobile to the Police Department. Thereafter, he met a policeman at Reitman’s place of business where Corbet had a conversation with Reitman. While there Corbet saw the license plate of the plaintiffs’ automobile in Reitman’s office and saw the key on a keyboard. Corbet did not know what disposition was made of the license plate, stating that he had a conversation with Reitman concerning the plate, which took place in the presence of the police officer. Corbet said it was stressed to him and the police officer by those questioned at the time that the car was outside, locked up and that the key and plate were inside the building. He did not know what disposition had been made of the key.

Stuart M. Haw, Jr., called as a witness for defendant, testified in much the same vein as did the Constable, concerning what happened on the morning the car was seized by the Constable. In addition, he testified that he never opened the car, went into it, nor did he touch the car. After the tow truck left Mr. Haw went to the used car lot at Manchester and McCausland Avenues and there saw the car brought in by the tow truck. On April 28, 1960, he visited Reitman’s place and talked to him. On that occasion, Reitman told him that the car had been parked behind his building and had been locked and showed him the key to the automobile, stating “here is the key to the automobile and I have been hanging on to it.” The key was in the office. Haw told him, “You hang on to it yourself, because if we have to call you to come in to testify you can bring it along and identify it as the key that locked that car, and it has been in your office ever since.” Reitman told him the automobile was locked the last time he saw it.

On cross-examination Mr. Haw said that when he last saw the car on the used car lot the left ventilator window was still broken but that it could not be opened readily after it had been locked; however, admitting that he did not try the window. About a week or more after the car was seized by the Constable on January 16, 1959, Haw wrote to the plaintiffs informing them that the car had been taken under a writ of execution to satisfy the judgment. In early March 1959 he wrote a letter to the Constable informing him of the theft of the car.

We first take up for consideration the contention of plaintiffs wherein they assert that since defendant secured the relief it sought from the trial court in its motion for new trial, there is no judgment or order against it from which an appeal could be taken. As we have pointed out, defendant appealed from the action of the court denying its motion for judgment in accordance with its motion for directed verdict. In support of its appeal, defendant contends that plaintiffs failed to make a sub-missible case against it and, therefore, its motion for judgment in accordance with its motion for a directed verdict should have been sustained. This contention of plaintiffs must be sustained and defendant’s appeal will be dismissed. However, as said in the case of Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, l. c. 920:

“ * * * the effect of dismissing defendants’ appeal is more academic than real. The basis of the purported appeal was that the trial court should have sustained their motion for a directed verdict because plaintiff failed to make a submissible case either under primary or humanitarian negligence. These contentions were preserved in the motion for [a] new trial, and in a situation precisely the same as here this court held that it would upon appeal by plaintiff from an order granting a new trial (after dismissing defendants’ appeal from the order denying a motion to set aside the verdict and judgment and enter judgment in accordance with the motion for a directed verdict) examine the evidence to determine whether or not plaintiff made a case for the jury, and if the ‘record plainly shows plaintiff under the law and the evidence cannot recover, the parties should be spared the trouble and expense of another trial.’ Bailey v. Interstate Airmotive, Inc., supra, [358 Mo. 1121,] 219 S.W.2d [333] at page 336 [,8 A.L.R.2d 710].”

In the instant case the grounds alleged in support of defendant’s motion for directed verdict were repeated and preserved in the motion for new trial. Therefore, we will examine the evidence to determine whether or not plaintiffs made a submissible case against the defendant. In further support of our action see Carter v. Matthey Laundry & Dry Cleaning Co., Mo., 350 S.W.2d 786; Emily v. Bayne, Mo.App., 371 S.W.2d 663, and Gill v. Mercantile Trust Company, Mo.App., 347 S.W.2d 420.

As we have heretofore pointed out, one of the points relied on by plaintiffs in their appeal is that the trial court erred in refusing to give their instructions predicated on the theory of conversion pleaded in Count II of their petition and the attendant issue of punitive damages prayed for in their petition.

Plaintiffs contend that the conversion took place when defendant delivered the automobile and key to the Reitman lot, holding that this constituted a delivery of bailed property to one not authorized by the bailor to receive it and, therefore, a conversion of the automobile took place. They say that the act of delivering the.automobile to Reitman’s lot constituted an exercise of dominion over plaintiffs’ property, adverse to their right, and after the purpose of the bailment had been effected. Citing Charles F. Curry and Company v. Hedrick, Mo., 378 S.W.2d 522; E. B. Jones Motor Co. v. Pullen, Mo.App., 298 S.W.2d 448, and Motors Insurance Corporation v. Union Market Garage, Mo.App., 207 S.W.2d 836. All of these cases involved delivery of the bailed property by the owner or possessor to the bailee and the contention that after the purpose of the bailment had been completed the bailee refused or failed to return the bailed property to the bailor. The facts in the cases cited are far different than the factual situation presented in the instant case.

Conversion is an unauthorized assumption and exercise of the right of ownership over the personal property of another to the exclusion of the owners’ right. Kegan v. Park Bank of St. Joseph, 320 Mo. 623, 8 S.W.2d 858, l. c. 871; 89 C.J.S. Trover and Conversion, § 1, p. 531. It is a possessory action wherein the owner of the personal property must show that he has either a general or special property in the thing converted and the right to its possession at the time of the alleged conversion. We fail to see that the delivery of the automobile by defendant to the Reitman lot constituted an exercise of dominion over plaintiffs’ automobile by the defendant. It is certain that plaintiffs did not have any right of possession against either the Constable or the defendant at the time of the alleged conversion. What plaintiffs fail to recognize is that the defendant was a mere agent for the Constable. We think it was a vicarious agent of the Constable and assumed the same position and duty with reference to the automobile as did the Constable. In the case of Birmingham v. Carr, 196 Mo.App. 411, 197 S.W. 711, a constable came into possession of a horse he had seized under a writ of attachment. The constable placed the horse in defendant’s barn to be fed and in holding that he had the power to place the horse in the stable, the court said at 197 S.W. l. c. 712:

“The constable’s position in reference to his possession of the animal is entirely different from that of an ordinary bailee, * * *.
“It is the constable’s duty under the law to take proper care of the animal, and if he fails to use ordinary care so to do he is liable. Murfree on Sheriffs, § 261a; Harlow’s Sheriffs and Constables (2d Ed.) § 2S6. But it is not to be assumed that he will not place it in the custody of some one engaged in caring for like animals. The attached property being in custodia legis, the power of the constable in respect to it is not different from that of a receiver, who has taken property into his possession under the order of court appointing him.”

Therefore, the only liability of a constable is to use ordinary care in the exercise of the care and preservation of the property that he has in his custody. The rule is well established that a sheriff or constable having property in his custody, pursuant to a levy of attachment or execution thereon, is liable for its loss, damage, or destruction, whenever such loss is caused by his failure to exercise proper care and diligence to preserve it. 47 Am.Jur., Sheriff, Police, and Constables, § 60, p. 866.

In the case State, to Use of Henderson v. Clark, 2 Terry, Del., 246, 20 A.2d 127, 138 A.L.R. 704, l. c. 708, the court in holding that a Sheriff is not an insurer of goods seized in execution, and is liable only for the failure to exercise ordinary care in their keeping, said: “The rule, supported by the great weight of authority, is that a Sheriff is in a position analogous to that of a bailee for hire, and is bound to exercise that degree of care in the keeping of property under levy which men in general exercise in their own concern. * * * Upon a balancing of advantages and disadvantages, we think this is a reasonable and practicable rule.” For other cases supporting this rule, see the Annotation on pages 710 et seq. in 138 A.L.R.

It is admitted that the taking of this automobile under the execution was lawful. A lawful taking is no conversion and it is held that trover is not maintainable against an officer or authorized person for mere neglect to take proper care of attached personal property. 47 Am.Jur., Sheriffs, Police, and Constables, § 182, p. 946. It has been held that where there is lawful execution that the constable has such a special property in the goods seized as to enable him, to maintain trover against any person who may take them out of his possession. 47 Am.Jur., Sheriffs, Police and Constables, § 236, p. 979 (n. 19).

What we have said aforesaid demonstrates clearly that an action for conversion is not maintainable against a constable who holds property under a lawful execution. The only action maintainable against such officer is for his failure to exercise ordinary care in the keeping of the said property. Plaintiffs cite no authority to the contrary. Therefore, it follows, that an action for conversion is not maintainable against the vicarious agent of the Constable and the only action maintainable is one for negligence for the failure to exercise ordinary care in the keeping of the property. This is especially true where the evidence shows no acts upon the part of the defendant in excess of the authority of the Constable or contrary to the order of the Constable. As we have shown, the Constable had the authority to turn the automobile over to the defendant for storage and safekeeping. Birmingham v. Carr, supra. Certainly, the storage of the car on the Reitman lot was not in excess of the authority of the Constable nor was it contrary to any order of the Constable to defendant. On the contrary, the testimony of the Constable, given in plaintiffs’ case, demonstrates that he asked defendant’s attorney where he wanted to store the automobile. Plaintiffs infer that the only place defendant was permitted to store the car was on the used car lot at Manchester and McCausland Avenues. This inference is not supported by the evidence. The Constable testified that his office had no facilities for storing cars and that was why he asked Mr. Haw where he wanted to take the car. He further testified that he gave no instructions to any employee of defendant relative to the care of the automobile. The testimony of the Constable shows that he did not direct or instruct that the car be kept at any specific place, leaving the care of the car to the defendant.

The evidence reveals no act or acts of the defendant that were contrary to the orders of the Constable. The removal of the car by the defendant to the Reitman lot was not an act of dominion in opposition to any right the plaintiffs had in the car. At the time the car was moved to the Reitman’s lot, the car was in custodia legis and the plaintiffs had no right to specify where the car should be stored. The making of the key for the car by the defendant in order to facilitate the movement of the car while it was in storage did not constitute an act of dominion by defendant. We find that there was no evidence in this record to support instructions based upon conversion and therefore the trial court correctly refused to give plaintiffs’ instructions predicated on that theory.

Having found that plaintiffs failed to make a submissible case on the theory of conversion, we now take up for discussion defendant’s contention that plaintiffs failed to make a submissible case of specific negligence as embodied in their offered and given Instruction No. 1. In reviewing this contention we will consider only the alleged negligence submitted to the jury by plaintiffs’ Instruction No. 1 upon which the verdict was returned. Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91.

Plaintiffs in their Instruction No. 1 hypothesized four specifications of alleged negligence: (1) that defendant “through its agents and employees, placed a 1956 Chevrolet automobile owned by plaintiffs, and a key or keys therefor, on a lot at 2204 Forest Avenue,” and (2) “that said defendant had not visited or inspected the said lot beforehand,” and (3) “that at said time the left ventilator window on said automobile was broken,” and (4) “said lot was not enclosed, and was accessible to persons in the vicinity thereof, * * The said instruction further required the jury to find that in so doing the above-mentioned acts defendant failed to exercise ordinary care and was negligent and that such negligence resulted in the car being taken from Reitman’s lot.

The mere fact that a theft of the automobile occurred does not prove or raise a presumption of negligence. The defendant, custodian of the property, acting as agent for the Constable, is not liable for any loss by theft unless it is connected with its own negligence. 47 Am.Jur., Sheriffs, Police and Constables, § 60, p. 868; 138 A.L.R. 727 (Dorman v. Kane, 5 Allen 38, Mass.).

The burden was upon the plaintiffs to prove the specific negligence submitted in their Instruction No. 1 and further to prove that the alleged negligent acts were the cause of the theft and the loss of the automobile. There must be substantial evidence on both negligence and causation in order to make a submissible case. The case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissi-bility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guess work, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. Probst v. Seyer, Mo., 353 S.W.2d 798, 91 A.L.R.2d 1252. We think the diligence required of the defendant as agent and custodian of the Constable is such as a careful, prudent man of reasonable sense and judgment might reasonably be expected to take if the property belonged to himself.

At the threshold of our discussion of the alleged negligent acts submitted in plaintiffs’ Instruction No. 1, we point out that Reitman, Corbet and the Constable were called as witnesses by plaintiffs and, therefore, they are bound by the uncontra-dicted testimony of their own witnesses. It is undisputed that the automobile was placed on Reitman’s lot by the defendant. We do not think that the mere placement of the automobile on this lot is an act in and of itself on which negligence can be predicated or from which a reasonable inference of negligence may be found. Of course, this is provided the automobile when placed there was locked and a key was not left in the car. There was no evidence, as we shall demonstrate, to support a submission that a key or keys to the car were placed on the lot at 2204 Forest Avenue. There is no evidence in the case to support a finding that a key or keys were left in the automobile when placed on Reitman’s lot. It will be remembered that Corbet, a witness for plaintiffs, testified that he saw the key and the tag attached to the key with the name “Earl Williams — ’56 Chevrolet” on Reitman’s keyboard after the car was stolen. He also saw the license plate of plaintiffs’ automobile in the office of Reitman. Corbet in his testimony said that at the time he saw the key and license plate in the office of Reitman that he had a conversation with him in which it was stressed to him and the police officer who was present that the car was locked up and that the key and the plate were inside Reitman’s building at the time of the theft. We find that this evidence which was offered on behalf of plaintiffs was never contradicted. Plaintiffs are bound by the uncontradicted testimony of Corbet. Draper v. Louisville and Nashville Railway Company, 348 Mo. 886, 156 S.W.2d 626; Reece v. Reed, Mo., 326 S.W.2d 67, l. c. 71. However, plaintiffs contend that Reitman’s testimony does contradict that of Corbet, when he testified that the porter left the automobile in the rear area, without comment; that he was not given any information concerning the automobile, and that he “knew nothing of any key.” They contend that this testimony certainly contradicts the testimony of Corbet. There is nothing in the aforesaid testimony, pointed out by plaintiffs, that either affirms or denies that a key was left in the car. To the contrary, is the further testimony of Reitman when he was asked if the key was delivered with the automobile, he answered “that I can’t remember,” again saying “I don’t remember anything about a set of keys.” This testimony upon the part of plaintiffs’ witness amounts to no evidence and, as said in Inman’s Adm’x v. United Rys. Co. of St. Louis, 157 Mo.App. 171, 137 S.W. 3, it is not even negative evidence on the point in question. Disclaimers of recollection and knowledge are unsatisfactory and unacceptable substitutes for evidence. Haire v. Stagner, Mo.App., 356 S.W.2d 305, 310-311. Therefore, Corbet’s testimony remains uncontradicted. It shows that the key was in Reitman’s office after the car had been stolen and, therefore, the key could have had no part in the theft of the automobile. More pertinent to the specification of negligence contained in plaintiffs’ Instruction I is that there is not one bit of evidence to support a submission that a key was left in the automobile at the time it was placed on Reitman’s lot.

The next element of negligence submitted is (2) “that said defendant had not visited or inspected the said lot beforehand.” As pointed out by defendant, it being a corporation, it could only visit or inspect the lot by or through its agent or servants. Plaintiffs produced no evidence to the effect that no agent or servant of the defendant had visited or inspected Reitman’s lot beforehand, nor any evidence from which such an inference could be made. A contrary inference could be drawn from the testimony of Corbet who was plaintiffs’ witness. Corbet testified that Maguire suggested Reitman’s place as a good place for the storage of the automobile and Reitman testified that he and Maguire had dealings “practically every day.” Also, we do not feel that a showing that defendant did not visit or inspect Reitman’s lot before placing the car thereon constitutes a substantial act of negligence on which liability may be predicated unless there is a further showing by plaintiffs that through an inspection defendant would have learned that Reitman’s lot was not a proper or safe place for storage of the car. There was no evidence to that effect. There was no evidence this was an unsafe place to keep an automobile. We think that this alleged failure, to inspect, even if true, was insufficient evidence on which to predicate negligence. We further find that the record evidence does not show that no agent or servant of defendant had ever visited or inspected Reitman’s lot before placing the car thereon.

In connection with the third specification of negligence submitted, it is conceded that at the time the car was taken from in front of plaintiffs’ premises, the left front ventilator window was forced and cracked. The principal evidence in this connection was given by the Constable when he said, “we just bludgeoned it” enough to open the door and said by doing so the glass in the window was cracked. He said that the window was forced back (bludgeoned) just enough to get a coat hanger inside the automobile in order to pull up the latch to open the door. On this particular question Mr. Haw testified that while the left ventilator window was broken it could not be opened readily after it had been locked. The most favorable evidence that can be extracted from the testimony of these two witnesses is that the left ventilator window was broken and cracked. There is nothing in the testimony of these witnesses that would show that the broken or cracked condition of the window would make it materially easier for someone to get into the car than if the window was in an unbroken state. The only testimony in the record in this connection demonstrated that the window could not be readily opened when locked. There is no doubt that one who wanted to. steal the car could gain entrance to the inside of the car in the same manner as did the tow truck driver, but there was no evidence to show that the condition of the window was such as to make access to the inside much easier. We fail to find any substantial evidence that would show that the alleged broken condition of the left ventilator window would cause or contribute to cause the theft and loss of the automobile.

The final specification of negligence submitted by plaintiffs’ instruction was that “said lot was not enclosed, and was accessible to persons in the vicinity thereof.” There is evidence to show that the lot was not enclosed and there can be little doubt that it was accessible to persons. We can think of no place that would not be accessible to one who seeks to steal, an automobile. There is no doubt that if an automobile is stored in a building and the building is locked, that it is more difficult to steal the automobile, but we do not believe that it was incumbent upon the Constable or the defendant herein to store this automobile in a locked building. As pointed out by the defendant, it is a matter of common knowledge that the great majority of the used car lots in this area are not fenced or enclosed but are open and accessible to persons in the vicinity thereof. It is also a matter of common knowledge that owners of automobiles park them over night and for substantial periods of time in front of their homes, apartments and business institutions and the cars are readily accessible to persons in the vicinity. In this very case the evidence shows that plaintiffs had their car parked on a public street. Many persons park their cars in driveways, open carports, and in lots to the rear of their premises. We do not think that leaving a car in an unenclosed place readily accessible to persons in the vicinity is an act from which negligence may be found. Of course, if the car is left unlocked or with a key in the ignition, this would present a different situation. That is not the case here. We agree with defendant when it says that if leaving a car in an unenclosed place accessible to persons in the vicinity be negligence “it would, by common knowledge, be impossible to operate and keep a car with any advantage in an area like modern Metropolitan St. Louis, without being held to be negligent.”'

We do not think that the record evidence in this case is sufficient and substantial enough to support a finding that defendant was negligent and that said negligence was the cause of the theft and the loss of the automobile. To rule otherwise would be to permit a recovery based upon guess work, conjecture and speculation.

For the reasons stated herein, the appeal of the defendant is dismissed and the cause is remanded to the trial court with directions to set aside the order granting a new trial on the issue of liability only and to enter a judgment for the defendant.

WOLFE, P. J., and J. MORGAN DON-ELSON, Special Judge, concur.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    James Edward PETERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    Rehearing Denied July 1, 1966.
    Ray C. Lewis, Lewis & Weaver, London, for appellant.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

James Edward Peters appeals from a judgment sentencing him to five years’ imprisonment in the state penitentiary for feloniously breaking into and entering a dwelling house with the intent to steal. Appellant contends the trial court erred in refusing to instruct the jury to find.him not guilty at the close of the evidence for the Commonwealth and at the conclusion of all the evidence.

Grant Reed, Jr., testified he is a school teacher at Lily High School in Laurel County and lives with his wife and daughter about five miles southeast of London. The Reed residence is located on a private road about 1000 feet off the main highway. On April 18, 1965, around 7:45 p. m., while it was still daylight, he and his family left their home to visit a friend who lives in London. They returned around 8:45 p. m.; by this time it had become dark. As they turned off the main highway Reed and his wife saw a car with one occupant, parked on the private road. Neither the automobile nor the person driving it was familiar to either of them. As they approached the driver started his car and continued on the private road toward Reed’s farm which lies in back of his house. The Reeds decided not to pursue the car but instead turned left onto another private lane which leads to their home.

As they drew near the house they noticed the doors of their truck were open. Upon closer examination Reed saw his school supplies and work clothes on the front seat of the truck had been searched. After entering the house, they found that close to the front door the sectional pane of a large picture window had been broken out; that the drapes by the window had been torn from the wall and were lying on the floor; and that the window screen had been pushed through and was lying on the floor with the front door mat on top of it. They later observed there was some blood on the drapes.

Reed called the Kentucky State Police to report the break-in. He and his wife decided to drive out to the main highway to meet the trooper since their home is hard to see from where the turn is made off the highway onto the private road. En route they saw a car go out the private road and turn its lights off. They recognized it as the same car they had noted shortly before at the time they came home. There was one person in the car when the Reeds first saw it; there were two in it when they saw it the second time. The Reeds gave chase and were able to obtain the license number of the car, which they furnished to the Kentucky State Police.

State trooper James Herrell traced the license number and this resulted in the arrest of appellant, James Edward Peters, at his home in North Corbin somewhere around 10 p. m. on Easter Sunday. Reed saw appellant at the Kentucky State Police barracks at about midnight, at which time appellant told him he broke into his house. Reed noticed appellant’s hand was cut. Also appellant told Reed that Roy Baker was driving the car.

Appellant and Reed both stated there had been no previous trouble between them and that they were boyhood playmates.

Appellant testified that after finishing work on Saturday night, April 17, 1965, he drove his automobile from Mt. Vernon to his home in Corbin. Earlier that week he had purchased in Richmond a fifth and three pints of whisky, a fifth of gin, and approximately three cases of beer. On his trip home from Richmond he consumed an unspecified amount of this liquor but, after arriving there, did not drink any more until about 8:30 a. m. the next day, which was Easter Sunday. At or about 1 p. m. appellant met Roy Baker and during the remainder of the afternoon they rode around in an automobile driven by appellant, each partaking liberally of the liquor appellant had previously purchased.

Both appellant and Baker testified they got very drunk and could not remember much of what happened until they were arrested later that night at their respective homes. Baker stated that the last thing he could remember before he passed out was sitting in the car with appellant out on the private road sometime before dark.

Appellant’s first contention is that the trial court committed error in permitting the following statement signed by appellant to be read to the jury:

“My name is James E. Peters, and 27 years of age, and can read and write, and I know Jim Herrell to be a Trooper with the Kentucky State Police, and have been advised of my rights to an attorney, and hereby give a statement of my own free will, this 18th day of April, 1965.”
“I got off from work Saturday, April 17th, 1965, at the Big B. Market at Mount Vernon about 7:30 p. m. and drove to Corbin. When I got home I took my wife and daughter to my mother’s home in Lily. We arrived back home about midnight. And on Sunday, April 18th, I got up about 8:30 a. m. and again went to mom’s. From here, my wife and daughter went to church and I left mom’s and drove around with some fellows until about 12:30 or 1:00 o’clock. Then I went— left mom’s and went and picked up Roy Baker and went to .Noe’s Dock. The water was too muddy to fish so we came back to Lily and drove around and drank quite a bit. Some time around dark, we were on the Old Whitley Road and for some reason, I can’t explain, I went to the house belonging to Grant Reed, Jr., as told to me by Roy Baker. At Reed’s home I knocked out a window, I don’t remember if I went in the house or not, but I cut my hand on the glass. When I cut my hand I turned and ran to the car. I don’t even know why I went to Junior’s house. Roy was driving the car and was there in the car when I went to the house, and when I got back to the car Roy was in the car. I think I then took Roy home and I went home. I am not sure Row Roy got home. I must of taken him home first and then I went on home. When I got home I told my wife I had done wrong, that I broke into, somebody’s home and I was going to give myself up. My wife kept me in the house because I was too drunk to drive. It wasn’t very long until you came to the house and got me.
“I have read the statement consisting of three pages and it’s true and correct to the best of my knowledge.
“James E. Peters”

Appellant contends it was error for the trial court to permit the above writing to be read to the jury over his objection. This contention is based on the grounds that: (1) Appellant was intoxicated when the statement was obtained; and (2) the statement was taken while he was without counsel.

Trooper Herrell, who obtained the statement from appellant, testified, at midnight when appellant gave it, he “was coming out of his intoxication and beginning to sober up.” When asked what appellant’s condition was at that same time on April 18, 1965, Reed said, “I would say that he had had something to drink.” Appellant stated that he had had so much to drink that, “I just barely do remember making the statement to him. I was kind of getting a little revived.”

Without conceding that appellant was intoxicated on the occasion in question, ap-pellee maintains the statement was admissible whether he was or not in a drunken state when it was taken. In support of its position on this point appellee relies upon this language which appears in Wharton’s Criminal Evidence, Vol. 2, p. 122:

“A confession otherwise voluntary is not to be excluded because the accused was intoxicated when he made it. The fact that the confesser was intoxicated is a circumstance affecting its credibility, and is to be considered by the jury.”

It is stated in an annotation to State v. Isom, 243 N.C. 164, 90 S.E.2d 237, 69 A.L.R.2d 358, that this rule is supported by a majority of the jurisdictions, although no Kentucky decision is cited in this connection. On page 362 of 69 A.L.R.2d the majority rule is thus stated:

“The case law on the subject under annotation may be summarized briefly: proof that the accused was intoxicated at the time he confessed his guilt of crime will not, without more, bar the reception of the confession in evidence. But if it is shown that the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements, then the confession is inadmissible.”

Appellant, according to his confession, remembered going to the residence of Reed. He recalled knocking out a window and cutting his hand on the broken glass. He was not so drunk he was unable to drive his friend Baker home and after-wards drive himself home without incident. Nor was he so intoxicated when he got home that he was robbed of the knowledge that he “had done wrong,” because he told his wife: “I broke into somebody’s house.” The confession on its face shows he was not benumbed to a degree that he could not give a complete and intelligent narration of all the details that occurred before, during and after the break-in. He was, furthermore, sober enough to resort to stealth in his effort to escape from the scene of the crime without detection.

The fact that a person is intoxicated does not necessarily disable him from comprehending the intent of his admissions or from giving a true account of the occurrences to which they have reference. There is nothing in the record to indicate that because of his intoxication appellant was in a maniacal state. It is our view, too, that the jury could reasonably conclude appellant was not so intoxicated as to be unconscious of the meaning and effect of the words contained in his statement.

The trial court did not abuse its discretion in admitting in evidence the confession under the facts presented. The break-in occurred between 7:45 p. m. and 8:45 p. m. Appellant’s statement was made and signed around midnight, after he had been arrested at 10 p. m. There is no evidence whatsoever that appellant was coerced, abused, mistreated, threatened, or subjected to any undue influence by any one, prior to the making or during the taking of his statement. He was aware of the identity of the person to whom he furnished it; he was informed of his right to counsel and expressed no desire to have an attorney; and he was advised that anything he said could be used against him.

The jury believed and found that appellant’s mind was not so beclouded with drink that he did not know the nature of what he was doing or saying at the time he signed the statement. As his act in this respect must be regarded a free and rational one, the statement was not subject to exclusion under the circumstances disclosed. See Carson v. Commonwealth, Ky., 382 S.W.2d 85.

Stemming from the two grounds urged for reversal of the judgment of conviction is the collateral argument that appellant was too drunk to entertain the required intent to commit the offense of which he was charged. It is pointed out in Terhune v. Commonwealth, 144 Ky. 370, 138 S.W. 274, that where an act itself constitutes the offense, drunkenness is no excuse for its commission, but where in order to constitute the offense the act must be combined with the criminal intent of the accused, then drunkenness may be offered as a defense. See also Norman v. Commonwealth, 104 S.W. 1024, 31 Ky.Law Rep. 1283.

The jury was instructed to consider the facts introduced as to appellant’s being drunk at the time of the perpetration of the offense charged, for the purpose of determining his mental condition and the motive that actuated him in the commission of the offense, if any offense was in truth committed by him; and, the jury was directed that if they believed from the evidence that appellant’s mental condition, by reason of drunkenness, was such that he could not have formed an intent to break into the dwelling house of Grant Reed, Jr., with the intent to steal therefrom, they should find him not guilty.

The instruction given follows the exact phraseology of one set forth in Section 847 of Volume 3 of Stanley’s “Instructions to Juries.” There was a question as to whether appellant was so drunk during the break-in that he was deprived of the intent to commit the crime; or as to what degree of sobriety he had at that time. The jury determined he was not so drunk he did not understand the nature of the offense he committed. We cannot say, under the facts presented, that they did not arrive at a correct decision.

Wherefore, the judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Clay M. BISHOP et al., Appellants, v. Estill HOWARD et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.
    Rehearing Denied July 1, 1966.
    Roy W. House, Clay M. Bishop, Manchester, for appellants.
    Denver Adams, Hyden, for appellees.
   WILLIAMS, Judge.

The appellees are the joint owners of a tract of coal land in Leslie County. After entering into a lease with appellees, appellants mined a quantity of coal from the area and then ceased operations. Appel-lees sued in the Leslie Circuit Court claiming they were entitled to additional compensation under the terms of the lease. Special Circuit Judge Don A. Ward entered judgment awarding appellees the sum of $5,997.99, based on his finding of fact. This appeal is taken on the ground that the lower court’s finding of fact is clearly erroneous.

The lease entered into by the parties provided that the appellants would pay 25 cents per ton royalty for every ton of coal taken from the property. The tonnage was to be calculated by measurement performed by a competent engineer. It was further provided that appellants were to pay for 90 per cent of the estimated tonnage whether mined or not.

Appellants proved by their engineer that there were 82,540 tons of coal in the entire area. They also proved that they had theretofore paid to appellees the sum of $11,126.-33 for coal actually mined. The trial judge accepted appellants’ figures in both those instances and incorporated them in his finding of fact. From the total number of tons estimated to be in the boundary (82,540) he deducted 6,878 tons, which was the estimated amount lying within a 1.22 acre area which proved to be unmineable. He was left with 75,662 tons which in his finding of fact he termed “actually mined,” but which he obviously meant “actually mine-able.” He then applied the 90 per cent factor to the latter figure and from that deduced the appellants owed appellees the sum of $5,997.99.

All parties agree the provision in the lease which provides the appellees should be paid for 90 per cent of the estimated tonnage means 90 per cent of the coal that could be mined at a reasonable profit by the use of modern machinery, good mining practices, and sound business management.

The trial judge attempted to determine the number of tons of mineable coal by taking the entire estimated tonnage and deducting the coal which lay in a particular area which was unmineable. In doing this he was on the right track but he did not travel far enough. All parties agree that no mine can be 100 per cent exhausted of its coal. It follows that there is and was a certain amount of coal left in the mine which was not mineable, but for which appellants have been charged. For example, we are told it is necessary to leave pillars of coal standing to avoid subsidence, and that burnouts, washouts, squeezes and other factors combine to reduce the number of mineable tons of coal in a mine.

Appellants’ witnesses testified that a 75 per cent recovery is considered good, and in this case appellants were only able to effectuate a 50 per cent recovery. Appel-lees’ witnesses said that something less than 100 per cent recovery was certain. Somewhere between 50 per cent and 100 per cent of the coal was mineable in this instance. We know that the amount situated in an isolated unmineable area and deducted by the trial judge from the total was not mineable. But we also know that there was other unmineable coal which was not deducted.

The finding of fact by the trial judge that there were 75,662 tons of mineable coal in the area was clearly erroneous. He should find the correct number of tons of mineable coal in the area described in the lease and enter judgment calculated on that finding according to the terms set out in the lease.

The judgment is reversed and the case remanded for proceedings consistent with this opinion.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. G. D. JOHNSON et ux., Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.
    Rehearing Denied July 1, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Charles W. Huddleston, Bowling Green, for appellant.
    J. Granville Clark, James C. Lyne, Rus-sellville, for appellees.
   HILL, Judge.

This appeal is from a $5,000 verdict and judgment in a condemnation proceeding to acquire .22 of an acre in fee and .09 of an acre for a permanent easement to be used in the improvement of US 68 in Logan.. County.

Assigned as grounds for reversing the judgment are the following arguments: (1) it was prejudicial error for the trial court, on motion of appellees, to direct a new appraisal after appellant alone had appealed from the county court judgment-; (2) it was error to permit the three commissioners appointed by the county court to testify as to their appraisals; and (3) testimony concerning the special purpose for which ap-pellees acquired the- property should have been excluded.

The commissioners appointed by the county court filed a report giving appellees $3,910. During the trial in circuit court, it developed that the commissioners were mistaken as to the boundaries of the subject property as well as the nature of the permanent easement. Counsel for appellees moved the court to set aside the county court judgment which was overruled, but the circuit court entered an order appointing the same three commissioners who were appointed by the county court. They filed a second report with the circuit court in which they awarded appellees $5,000. Ap-pellees argued in the circuit court that the appointment of commissioners in the county court was a jurisdictional necessity and that the case should be remanded to the county court. Now, appellees take the position the circuit court took the “only action consistent with the law of the Commonwealth of Kentucky.”

Appellant argues the circuit court erred in appointing commissioners and cites Commonwealth, Department of Highways v. Berryman, Ky., 363 S.W.2d 525 (1962), and Bullitt v. Commonwealth, Department of Highways, Ky., 298 S.W.2d 290 (1957). These cases do not support appellant’s position. On the other hand, they furnish some authority for the holding that the circuit court committed no prejudicial error in appointing commissioners. The Berryman and Bullitt cases only uphold the provisions of the statute that condemnation cases are tried “de novo” in circuit court.

A determination of this nice question leads us to examine the purpose of appointing commissioners in county court. It is necessary under the statute and the Constitution that “just compensation” be given a property owner before he may be deprived of his property in eminent domain cases. In order that the amount of “just compensation” be determined speedily and without the necessity of waiting for a jury verdict and term time, the Legislature wisely provided a substitute. If no exceptions are filed by either party, the award of the commissioners provides the basis for determining “just compensation” and a final judgment from which neither party may appeal insofar as the amount of the judgment is concerned. If either or both parties file exceptions and appeal to the circuit court, a trial is had “de novo.” See the Berryman case, supra. In the case at bar, only the Commonwealth filed exceptions to the award of the county court commissioners. Therefore, the only question in issue in circuit court was whether the amount of the county court judgment was excessive. Appellees, not having taken exception to the amount of the county court award, were limited on the appeal to the circuit court to the amount of the award in county court.

We conclude that a mistake on the part of the county court commissioners, either as to the amount of land taken or as to the nature of easement sought, in no way affected their award and furnishes no grounds for setting aside their report. Both appellant and appellees were interested only in the total dollar award. Neither had a right to be present or to be heard by the commissioners. Both had a right to except and appeal. Neither had a right to jury trial in county court. An error or mistake in arriving at an award regular on its face does not render it invalid. The amount is the vital question; and if it is not satisfactory, the remedy is by appeal on that issue alone. We think the circuit court should have limited the recovery to $3,910, the amount of the first award, which was apparently acceptable to appellees. The second appointment of the same appraisers was a nullity.

We now turn to the testimony of the commissioners that they made the award in their capacity as “county court commissioners.” The only reasonable construction of the two narrative bills of evidence (both approved by order) is that each of the three witnesses, Newberry, Long, and Dickinson, testified that in his capacity “as county court commissioner” he fixed the damages at $5,000. This is a clear and unequivocal violation of the rule in Commonwealth, Department of Highways v. Swift, Ky., 375 S.W.2d 691 (1964). This Court has consistently considered such evidence incompetent and prejudicial. See also Commonwalth, Department of Highways v. Brubaker, Ky., 375 S.W.2d 404 (1964); Commonwealth, Department of Highways v. Raleigh, Ky., 375 S.W.2d 384 (1964); Dinwiddie v. Urban Renewal and Community Development Agency of Louisville, Ky., 393 S.W.2d 872 (1965).

Finally, appellant complains of the testimony of Mrs. G. D. Johnson relative to her reason for the purchase of the farm out of which the land herein sought was taken. The reason being so that she could be near her relatives and enable her husband to tend the farm. This evidence was incompetent and will not be permitted on another trial should there be one.

The judgment is reversed for a new trial consistent herewith.


author: WADDILL, Commissioner.

text:
    Erin Robert RUSSELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Rehearing Denied July 1, 1966.

      John W. Beard, Bratcher, Rummage, Beard & Flaherty, Owensboro, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant, Erin Robert Russell, was convicted upon two counts of a three-count indictment, each count alleging that he had knowingly received stolen property as denounced by KRS 433.290. The judgment directed that the two five-year sentences imposed by the jury be served consecutively.

Appellant contends that the trial judge erred in failing to grant him a postponement of the trial. RCr 9.04. In support of this ground he urges that, due to his excessive use of alcoholic beverages, he was neither able to assist his attorney with the preparation of his defense nor to adequately participate in the trial.

The indictment was returned on August 11, 1964, and after several postponements the case was set for trial on February 19, 1965. On the latter date the trial judge refused to grant another continuance. The judge observed that appellant was sober, in excellent shape physically and that he had been given ample time to prepare for trial. Aside from this observation, the record justifies the conclusion reached by the trial judge. Appellant’s testimony plainly shows that he was alert and that he fully related the events favorable to his defense. The claim that the judge abused his discretion is not supported by the record.

Appellant contends there was improper joinder of offenses and that the trial judge erred in overruling his motion seeking a separate trial on each count of the indictment.

RCr 6.18 provides:

“Two or more offenses may be charged in the same information or two or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.”

Since the offenses stated in the instant indictment are obviously of the same character the foregoing provision of our Criminal Rules clearly permits them to be joined and tried together. Consequently, there is no basis upon which to claim error in this respect. Marcum v. Commonwealth, Ky., 390 S.W.2d 884. Also see Schweinefuss v. Commonwealth, Ky., 395 S.W.2d 370.

Appellant urges that the trial judge erred in permitting the Commonwealth to impeach two of its witnesses. These witnesses, who admitted that they had stolen the goods, testified that appellant had refused to buy them. The trial judge then permitted the Commonwealth to treat them as hostile witnesses and to show they had previously stated to police officers that they had sold some of the stolen goods to the appellant. This procedure was proper since these witnesses had testified positively to the existence of a fact prejudicial to the Commonwealth. McQueen v. Commonwealth, Ky., 393 S.W.2d 787.

It is argued that the constitutional rights of these witnesses were violated as they were under police investigation for a crime at the time they testified and therefore were entitled to have advice of counsel. We need not decide whether the constitutional rights of these witnesses were violated because the fact that they were without counsel did not deprive appellant of any of his legal rights.

Appellant complains that the trial judge did not admonish the jury that the contradictory statements of these witnesses should be considered only for the purpose of impeaching the credibility of their testimony. Appellant did not ask for the admonition and he thereby waived his right to have it given. Brock v. Commonwealth, Ky., 391 S.W.2d 690.

Appellant contends that he was entitled to a directed verdict finding him not guilty. However, there is sufficient evidence to justify the submission of the question of appellant’s guilt or innocence to the jury and to sustain the jury’s finding. There was testimony that stolen property was found in appellant’s home. This fact, when considered in conjunction with other incriminating evidence, constitutes substantial evidence rather than mere suspicion of guilt. Clatos v. Commonwealth, 298 Ky. 851, 184 S.W.2d 125.

Appellant contends that the trial judge erred in refusing to give an accomplice instruction. It is urged that the witnesses who sold the stolen goods to appellant were his accomplices. This contention must be rejected because it is the rule in this state that the thief is not an accomplice of the receiver of stolen goods. Solomon v. Commonwealth, 208 Ky. 184, 270 S.W. 780; Roberson’s New Kentucky Criminal Law & Procedure, Section 884, p. 1106. Also see Grady v. Commonwealth, 237 Ky. 156, 35 S.W.2d 12. An accomplice instruction would have been improper.

Appellant urges that the instructions were erroneous in that they failed to include an accomplice instruction, a lesser offense instruction and a specific instruction on his theory of the case. We have heretofore pointed out that the persons who stole the goods were not accomplices of the appellant. This determination resolves the question concerning the necessity of an accomplice instruction.

The Commonwealth’s evidence clearly indicated that the fair market value of the stolen goods which appellant received amounted to more than $100 as to each count of the indictment. There was no evidence to refute these valuations. In the circumstances there was no lesser offense involved and the instructions properly submitted the question of whether appellant had knowingly received stolen goods of the value of $100 or more.

The instructions required the jury to find that appellant had knowingly received stolen property worth more than $100 before it could convict him. The instructions obviated the giving of an affirmative instruction to acquit him if the jury believed he had not knowingly received the stolen property. Wilson v. Commonwealth, 303 Ky. 219, 197 S.W.2d 240; Shaw v. Commonwealth, 229 Ky. 412, 17 S.W.2d 267.

Appellant insists that it was error to permit the Assistant Commonwealth’s Attorney to explain the absence of the Commonwealth’s Attorney during the trial. We do not find that the substantial rights of appellant were prejudiced by this procedure. RCr 9.26.

Appellant urges that his rights were violated when the Assistant Commonwealth’s Attorney referred to him as a “fence” in his closing argument to the jury. We believe this reference was permissible under the evidence presented by the prosecution. Hopkins v. Commonwealth, Ky., 298 S.W.2d 695.

We have considered each ground for reversal ably presented by counsel for appellant and find no reversible error in the record.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Jack C. MASSENGALE, Appellant, v. Charles E. LESTER, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Rehearing Denied July 1, 1966.
    See also, Ky., 403 S.W.2d 701.

      E. Gaines Davis, Jr., Smith, Reed, Yessin & Davis, Frankfort, Jack M. Longshore, Miamiville, Ohio, for appellant.
    Robert B. Halloran, Newport, for appel-lees.
   PALMORE, Judge.

Charles E. Lester and Lawrence Ried-inger, Jr., partners in the practice of law, brought this action in the Campbell Circuit Court against Jack C. Massengale, a resident of Ohio, to recover $7,500 which Massengale allegedly agreed to pay them for legal services. Following a trial without a jury the court found for the plaintiffs and Massengale appeals.

Massengale, who was then a practicing lawyer in Cincinnati (he was later suspended from practice), was indicted in 1956 by a federal grand jury in Ohio on several charges of wiretapping and pretending to be an FBI agent. He was convicted on two counts and appealed to the U. S. Circuit Court of Appeals. Lester represented him in both courts. According to the complaint and supporting evidence in the present action, upon the occasion of Massengale’s appearance in the office of the clerk of the U. S. Circuit Court of Appeals to execute a bail bond he made an oral agreement with Lester to pay him a fee of $7,500 for legal services to be rendered thereafter in that court. Previously Massengale had given Lester a $1,500 note secured by real estate mortgage, and it is Massengale’s contention that this was the only fee ever agreed upon. Lester’s version is that the $1,500 fee was for his services in the district court and no more.

The $1,500 note eventually was assigned to one Burkhart. In Massengale’s brief it is said that Burkhart brought suit on it in Ohio and gave notice of depositions to be taken in Campbell County, Kentucky, thus inducing Massengale to come to Campbell County, where he was served with a summons in the instant suit of Lester and Riedinger. Massengale’s motions to dismiss or, in the alternative, to quash the return on the summons on the grounds that the service was fraudulently procured and that as a resident of Ohio he was immune from process while present in this state for the purpose of attending to his litigation, were overruled. This gives rise to the first question presented on appeal.

Service of process obtained by fraud or trickery is invalid. Sutton v. Tuggle, 260 Ky. 351, 84 S.W.2d 1017 (1935); Wood v. Wood, 78 Ky. 624, 39 Am.Rep. 231 (1880); 42 Am.Jur. 32 (Process, § 35). And according to the great weight of authority, in the absence of extraordinary circumstances a nonresident who is in the state either as a witness or a party litigant is immune from the service of civil process, whether he appears voluntarily or in obedience to a subpoena. Rains v. Smith, 155 Ky. 766, 160 S.W. 493 (1913); Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192 (1916); 42 Am.Jur. 123, 124 (Process, §§ 142, 143); Annotation, “Immunity of nonresident from service of process while in state for purpose of settling or compromising controversy,” 93 A.L.R. 872. See also annotation, “Immunity from service of process as affected by relationship between subject matters of litigation in which process was issued, and litigation which nonresident was attending,” 84 A.L.R.2d 421.

In view of Lewis v. Miller, 115 Ky. 623, 74 S.W. 691 (1903), holding that nonresident immunity did not apply to a person temporarily in this state for the purpose of testifying as a witness in an appeal she had taken from a judgment probating the will of her father (who had created the debt for which she was sued), and Linn v. Hagan’s Adm’x, 121 Ky. 626, 87 S.W. 1101, 27 Ky.L. 1113 (1905), holding that it did not protect a nonresident in her capacity as administratrix of a foreign estate, the status of the law in Kentucky on this particular subject is not entirely clear. See Marlowe v. Baird, 301 F.2d 169 (6 Cir. 1962). Assuming, however, that sound policy promotes the administration of justice by encouraging parties and witnesses to appear and participate in connection with pending litigation free of harassment and entrapment, that this court would extend that policy to the taking of depositions for use in trials elsewhere, and that the relationship between Burkhart’s suit against Massengale and the suit brought against him by Lester and Riedinger is not such as to create an exception (cf. 84 A.L.R.2d 421, 425 et seq.), the insurmountable difficulty with Mas-sengale’s position on this point is that the facts recited in his brief do not appear in the record.

The motion to dismiss or quash, which appears to have been filed or renewed at least three times during the course of proceedings in the circuit court, says that Mas-sengale is and was at all times a citizen and resident of Ohio and that “he has not been properly served with process of summons in this action as service was had upon the defendant in the courtroom of His Honor, Paul Stapleton” (one of the judges of the Campbell Circuit Court). The supporting affidavit elaborates to the extent of alleging that the summons was served by a deputy sheriff while Massengale was “on official business in said c urtroom for the purpose of taking testimony on cross-examination of sundry witnesses in a case which was caused to be initiated by fraud and deceit by the plaintiffs for the sole purpose of having defendant falsely served with summons for the purpose of harassment and without any basis of law,” etc.

A counter-affidavit by Lester and Riedinger denied that Massengale had been enticed into Campbell County by fraud, deceit or any other means. Following a hearing on the issues presented by the motion and affidavits the motion was overruled. Unfortunately, the hearing was not transcribed or preserved for the record. The factual allegations having been controverted, it must be presumed that the evidence produced at the hearing (or the lack of evidence if Massengale, having the burden, failed to produce any) supported the ruling. Crowe v. Taulbee, Ky., 350 S.W.2d 620 (1961).

The next contention is that the trial court erred in sustaining a motion to strike several portions of Massengale’s responsive pleading, which appears to have been styled an answer and “cross complaint” and consisted of three parts, the answer, a “Cross Petition,” and a “Second Cause of Action,” all asserted against the plaintiffs, Lester and Riedinger.

Having been unsuccessful in effecting any lasting arrangement for legal representation, Massengale had the misfortune of going it alone through most of the proceeding in circuit court. Obviously he was unfamiliar with the rules of pleading and practice and, in this jurisdiction at least, with the customary manner of conducting trials. His pleading is a fair example of the resulting confusion.

In substance, the answering portion of Massengale’s pleading denied that he owed plaintiffs any money and affirmatively alleged the following matters:

(1) Improper service of the summons.

(2) Execution of the $1,500 note and inadvertent overpayment of it.

(3) Fraudulent procurement by Lester of $1,750 for printing expenses, most of which was converted to Lester’s own use.

(4) Fraudulent conspiracy and assignment of the $1,500 note and mortgage by Lester to Burkhart in order to defeat an effort by Massengale to have them can-celled.

(5) Fraudulent suit by Burkhart against Massengale on the $1,500 note and mortgage.

All of these affirmative allegations in the answer were stricken except for those relating to the $1,500 note. Aside from the issue of improper service, none of them presented a defense against the cause of action stated in the complaint, and since the process question already had been heard and disposed of on motion it was not incumbent on the court to hear it again on the pleadings. Manifestly, therefore, with respect to this phase of the pleading the motion to strike was properly sustained.

The second section of the responsive pleading, entitled “Cross Petition,” adopted by reference the allegations of the answer and stated in addition that the instant proceeding was a false, fraudulent and malicious suit, causing defendant to hire an attorney to his damage in the amount of $1,000.

The third and last part of the responsive pleading, styled “Second Cause of Action,” simply alleged that the plaintiffs had attempted to defraud him “as stated in his foregoing answer” and demanded $10,000 punitive damages, an accounting for all monies paid plaintiffs by defendant, cancellation of the $1,500 note and mortgage, and recovery of defendant’s attorney fees.

Sustaining of the motion to strike had the net effect of removing from the responsive pleading all but the denial that Massengale owed the plaintiffs any money or had ever entered into the alleged agreement to pay a $7,500 fee as claimed in the complaint.

The office of pleadings is to simplify rather than complicate litigation. Allegations are required to be simple, concise and direct. CR 8.05. Separate theories of claim or defense must be separately paragraphed. CR 10.02. Although the court may and should overlook simple mistakes of caption or designation, cf. CR 8.03, it is not the judge’s function to sift through a garbled pleading like a prospector panning for gold. On a motion to strike the court’s duty is to clear out the rubbish, and if in that process something is left unsaid which the pleader intended to say, his remedy is promptly to tender an amendment.

Massengale did eventually file an “amended answer and cross-petition” rehashing much of the same material appearing in his first pleading, adding a plea of limitations, and demanding only that the complaint be dismissed. On motion the court struck the averments that merely reiterated what had been stricken theretofore, leaving intact the purely defensive content. For the same reasons applicable to the first pleading we are of the opinion that this action was proper.

The attempt to assert a claim for malicious prosecution was, of course, premature. One of the essential elements of a cause of action for malicious prosecution is that the litigation has terminated. Blankenship v. Staton, Ky., 348 S.W.2d 925, 927 (1961). The one other claim he may have intended to assert was that he had paid Lester and Riedinger more than he owed them and was entitled to an accounting and refund. This, however, was based on the premise that the $7,500 contract never existed, and since the court heard all the competent proof of payments Massengale was able to offer at the trial, and found in effect that there had been none, any possible error in striking the prayer for an accounting proved to be non-prejudicial.

The remaining contentions are that the court unduly restricted Massengale in his cross-examination of Lester and that the findings of fact were not supported by the evidence. On the first of these, it appears to us that the trial judge was quite liberal and patient and not nearly so restrictive as he might have been under the circumstances. On the second, the answer is that it was a case of one man’s word against the other’s. We cannot fault the trier of fact because of which one he chose to believe.

The judgment is affirmed.


text:
    Jack C. MASSENGALE, Appellant, v. Charles Bruce LESTER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    See also, Ky., 403 S.W.2d 697.
    E. Gaines Davis, Jr., Frankfort, Jack M. Longshore, Miamiville, Ohio, for appellant.
    Daniel W. Davies, Newport, for appellee.
   PALMORE, Judge.

In January of 1963 the appellant, Jack C. Massengale, filed in the U. S. District Court for the Southern District of Ohio a suit in which Massengale was the plaintiff and Charles Bruce Lester, the appellee, was named as the defendant. According to Massengale’s testimony in the case now before us, the designation of Charles Bruce Lester was a mistake, as the intended defendant was his father, Charles E. Lester. Before the error could be rectified, a Cincinnati newspaper published a story recounting the substance of the federal court complaint. Charles Bruce Lester then brought the present action in the Campbell Circuit Court against Massengale for libel and recovered $500 compensatory and $500 punitive damages at the hands of a jury. Massengale’s motion for an appeal has been sustained. KRS 21.060, 21.080; RCA 1.180.

Charles E. Lester and Charles Bruce Lester are attorneys associated in the practice of law at the same address in Newport, Kentucky. In 1956 Charles E. Lester defended Massengale against several indictments in Ohio, and some time thereafter a disagreement arose between them concerning fees and expenses. See Massengale v. Lester, Ky., 403 S.W.2d 697 (decided today), for the background. In his federal court suit Massengale alleged that he had given the defendant a $1,500 note and had paid him, through mistake, more than that amount, despite which the defendant refused to surrender the note and refund the excess; that the defendant had fraudulently obtained from him $1,750 for printing expenses; and that the defendant had fraudulently assigned the $1,500 note and a mortgage securing it to one Burkhart for the purpose of coercing the plaintiff to pay out still more money in order to effect their cancellation.

A publication falsely charging an attorney at law with unprofessional conduct is libelous per se, and unless it is privileged both malice and damage are presumed. Baker v. Clark, 186 Ky. 816, 218 S.W. 280, 283 (1920). However, “statements in pleadings filed in judicial proceedings, if material, relevant, or pertinent to the issues involved, are absolutely privileged, though it is claimed that they are false and alleged with malice.” Lisanby v. Illinois Cent. R. Co., 209 Ky. 325, 272 S.W. 753, 754 (1925); Restatement of Torts, § 587; 33 Am.Jur. 144 (Libel and Slander, § 149).

Whether Massengale intended to sue Charles Bruce Lester or not, the fact is that he did sue him, and the only instrumentality by which he published any defamatory matter concerning him was the federal court complaint, under the cloak of absolute privilege. Probably because he recognized this legal obstacle, Lester cast his complaint in the present action on the newspaper article rather than the pleading itself, but it seems to us that one whose statements are privileged because made in a judicial proceeding does not lose that privilege simply because they are republished in a newspaper. Otherwise the very purpose of the privilege would be lost.

The vital allegation of Lester’s complaint is that Massengale “caused” the defamatory matter to be published in the newspaper. However, except for the inference that Massengale knew or should have known that the suit would be reported by the press there is nothing in the evidence to prove it. The article itself does not purport to quote or report any statement by Massengale other than the contents of his complaint. In fact, it concludes with a statement that “Massengale could not be reached for an explanation of why the suit names the younger Lester.” Hence it is clear that Massengale “caused” the publication only in the sense that by filing his complaint in the federal court he made it a public record to which the press had access. It was not a separate, independent communication; hence it was privileged.

Through most of the proceeding in circuit court, including the trial, Massen-gale was without counsel, and the record is replete with procedural confusion of about the same kind and quantity as described in Massengale v. Lester, Ky., 403 S.W.2d 697. In addition, in this case, which went to the jury, Massengale failed to move for a directed verdict. Nonetheless, he did offer 13 instructions, 11 of which were rejected, and among those rejected were four instructions on the theory of privilege. This was enough to require a proper instruction on that theory, even if it would have had the practical effect of directing a verdict for Massengale. Cf. Clay’s Kentucky Practice, CR 51, Comment 6. The court did not instruct on privilege, and it is our conclusion that the omission was a prejudicial error.

Massengale having failed to move for a directed verdict, his motion for a judgment n. o. v. was not sustainable. CR 50.02; Claspell v. Brown, Ky., 332 S.W.2d 851 (1960). However, his motion for new trial should have been sustained on the ground of error in the instructions.

The cause is reversed with directions that a new trial be granted.

      . The newspaper had the right to report the contents of the complaint as a matter of public record, so long as its report was accurate. Cf. Greenfield v. Courier-Journal & Louisville Times Co., Ky., 283 S.W.2d 839 (1955).


text:
    Sellie G. LEE, Jr., Appellant, v. August E. DUTLI, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Rehearing Denied July 1, 1966.
    John L. Harbolt, Louisville, for appellant, r
    Fielden Woodward, Louisville, for appel-lee.
   GEORGE O. BERTRAM, Special Commissioner.

Appellant as plaintiff in the trial court filed his complaint seeking damages of $15,-000 for personal injuries claimed as the result of the negligence of appellee in the operation of his automobile. Appellant parked his car about 9:00 P.M. March 3, 1964, in the private parking lot at the rear of the Ben Snyder Store in the Algonquin Manor Shopping Center in Jefferson County. Appellant was there with his daughter to pick up his wife who worked at the Ben Snyder Store. While waiting for his wife appellant got out of the car and went to the rear to get an old sock from the trunk to wipe the windshield, which had fogged up. Appellee at about this time left a bowling alley located in the shopping center and entered his car, which was parked some 35 or 40 feet in front of appellant’s car. While appellant was still at the rear of his car ap-pellee backed his car and struck the front of appellant’s car. Appellant contends his car was knocked backwards about ten feet by the impact and he was injured by reason thereof. Appellant’s contention is supported by the evidence of two police officers, his wife, the testimony of two medical doctors, and a hospital employee. One officer testified his investigation showed appellant’s car had been knocked backward about ten feet from the original point of the impact. All other evidence for appellant was in support of his claim for injuries.-

Appellee contends he just bumped the car of appellant. However, he did admit that he had about two beers over a period of three hours while at the bowling alley; that when he got into his car the windows were fogged up; that he backed some 35 or 40 feet, and that he heard some screams and when he investigated, appellant “was laying on the ground, that’s the first I knew he was there.”

There was evidence, and we think undisputed, that appellant was not parked inside the parking area designated for parking. Appellant offered evidence as to the alleged custom of parking automobiles in the parking lot, to which the trial court sustained objections and excluded it from the jury.

On submission of the case the jury returned a verdict in favor of appellee. This appeal presents three questions:

(1) General custom, practice or usage is admissible in evidence as bearing on the question of negligence.

(2) The trial court erred in submitting the issue of appellant’s contributory negligence to the jury, because no such negligence was shown.

(3) Appellee was negligent as a matter of law and the trial court erred in submitting the issue to the jury.

We think the last two questions raised on this appeal are well taken. However, we think exclusion of the general custom, practice or usage evidence offered was correct. See Klaber v. Williams Tractor Co., Ky., 307 S.W.2d 204, in which this court said:

“We think that where business premises are open for use by invitees, with no restrictive barriers or warnings, the invitee cannot be charged with the duty of informing himself of a special custom governing movement of persons, machines or vehicles on the premises, particularly one completely the opposite of universal custom.”

We think the rule of the case on this appeal, so far as the first question presented, should be adapted from the Klaber case as follows:

“[Wjhere business premises are open for use by invitees, with no restrictive barriers or warnings, the invitee cannot be charged with the duty of informing himself of a special custom governing movement of persons, machines or vehicles [or the parking of machine or vehicles] on the premises.”

We think the evidence in this case clearly shows that the negligence of appellee in getting into his automobile with the windows fogged up and backing 35 or 40 feet was the sole proximate cause of the accident; that it is equally clear that if there was any negligence on the part of appellant in parking outside the marked area, it had no proximate causal connection with the accident; that there could hardly be a plainer case of negligence as a matter of law than was established by appellant’s evidence, and that appellant was entitled to a peremptory instruction leaving only the question of damages for the jury. See Lawhorn v. Holloway, Ky., 346 S.W.2d 302, and the cases cited therein; Duff v. Lykins, Ky., 306 S.W.2d 252; Vaughn v. Jones, Ky., 257 S.W.2d 583, and Farris v. Summerour, Ky., 296 S.W.2d 708. The case of Carlisle v. Reeves, Ky., 294 S.W.2d 74, is not applicable.

It is our opinion that the trial court should have sustained appellant’s motion for a directed verdict on the issue of liability and submitted to the jury the question of damages only.

The cause is reversed with directions for a new trial on the sole issue of damages.