author: EAGER, Judge.

text:
    August MILLER, Appellant, v. GULF, MOBILE & OHIO RAILROAD COMPANY, a corporation, Respondent.
    No. 50310.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 11, 1965.

      Joseph Cohen, Charles S. Schnider, John E. Shamberg, Joseph P. Jenkins, Kansas City, Kan., James P. Jouras, Kansas City, Mo., for appellant.
    William H. Curtis, George M. Wells, Morrison, Hecker, Cozad & Morrison, Kansas City, Mo., for respondent
   EAGER, Judge.

This suit was instituted to recover $200,-000 for personal injuries allegedly suffered in a fall on one of defendant’s locomotives. The petition charged violations of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., the Federal Safety Appliance & Boiler Inspection Act, 45 U.S.C.A. § 1 et seq. Subsequently plaintiff has also claimed a violation of certain rules of the Interstate Commerce Commission. The specific violations charged will be mentioned later. During the trial plaintiff abandoned his reliance upon the Federal Employers’ Liability Act. There was a verdict for defendant and plaintiff has appealed, after the overruling of his motion for a new trial.

There was no controversy regarding the interstate character of plaintiff’s work. He was a fireman on defendant’s diesel switch engine No. 20, operating in its 12th Street yards in Kansas City, Missouri. He had worked for defendant as a fireman and hostler for approximately two years from 1945 to 1947, but was then furloughed. He re-entered the service in 1953 and continued, except for a period of illness, until the time of his alleged injury on April 11, 1957. He was then 51 years old, a very large man, five feet ten inches in height, but weighing approximately 300 pounds. He had previously engaged in heavy construction work of various kinds. In defendant’s service he had frequently worked as a fireman on this particular engine. At the front of the cab of the engine on the left side there was a folding door, about 20 inches wide, which led to a gangway or catwalk running along the left side of the engine proper. Outside this door, there was a handhold on the right near the top of the door and a railing on the left which ran along the entire side of the catwalk. Below the doorway there was one step leading down to the catwalk. This was a metal step, roughened or corrugated in its construction, 16j4 (or 16^4) inches long, and 8 inches wide; at the outer edge a lip projected downward V/z inches. This step was firmly riveted to a back plate constituting a part of the metal wall. In some of the photographs a portion of the edge of the step looks somewhat more “shiny” than elsewhere, but from the variation in these exhib-'ts it is impossible for us to tell whether this is the result of wear or of the lighting. Plaintiff’s testimony will be noted later.

Plaintiff came on duty at 3:30 p. m.; it was shown both from oral testimony and from weather reports that it had snowed some (the total depth undetermined) from 3 :25 p. m. to 8:25 p. m. on that day. The official weather bureau noted “heavy snow” at 5 :25, and at that time the temperature was 29 degrees. At various times the snow was classed as “light.” Some snow had accumulated on the ground, but it “didn’t stay long.” Plaintiff testified that at the time of his fall the step was wet and “slick,” but that there was no snow or ice on it; specifically, he described the step as “wet and wore.” There was testimony from another employee who went on and off the engine that evening that he had not found the step slippery when he used it.

At about 8:00 or 8:15 p. m. the switch engine stopped at the switch shanty for a lunch period. Plaintiff opened the door already described, shoved it back with his left hand, took hold of the door with his right hand, turned “a little sideways” to get his bulk through the door, and placed his left foot on the step, more or less “lengthwise” of the step; then, in order to bring down his right foot, he moved his left foot and it slipped off of the step, causing him to fall. He claims severe injuries to his left knee from this fall. On cross-examination he stated that he placed his left foot “right close to the edge,” that “I never looked down, and we aint got no lights to see”; that, although he did not look, he did it by feel; that he was attempting to slide his left foot backwards, but he could not say whether he moved it closer to the edge or not; also, that he could not say whether he had ever previously noticed that the step was slippery. He further testified : that as he slipped he reached unsuccessfully for the grab iron, and when he fell he heard his knee “pop”; that he managed to get off the engine, eat his lunch and finish his shift, although his knee was swollen and painful. On the next day he reported to physicians of the Missouri Pacific Hospital Association and a long series of treatments, observations and operations began. It was his contention that at the time of trial, nearly six years later, he was totally and permanently disabled, and there was substantial evidence of this.

There was evidence for defendant that two days after the fall plaintiff had stated to his general foreman that he had “slipped on the snow getting off the engine”; the history given by him to the Missouri Pacific Hospital Association included a statement that “I was getting off the engine. There was snow on the steps, which caused me to slip and wrench my left knee.” The history given at a Chicago hospital was: “April 11, 1957, slipped on railroad engine in snow.” In a signed statement given by plaintiff to defendant’s claim agent he stated that “due to this snow collecting on the step I slipped and fell * * and later he again made substantially the same statement in writing. Plaintiff had stated to defendant’s shop supervisor two or three weeks after his fall, according to that witness, that he was getting off the back of the engine (where there was also a ladder) and that his foot had “slipped on the ice and snow on the ground.” There was also evidence that upon regular inspections of the entire engine no defects were found and reported.

The specific charges of negligence were in substance: the maintaining of a worn, slick and slippery metal step, and the failure to discover and correct it; the use of an unsafe locomotive; the failure to warn plaintiff and the failure to provide adequate lighting; also (apparently directed at the FELA phase) that defendant had failed to provide tools and equipment to clean snow and accumulated precipitation from the step.

Wc relate briefly one phase of the very extensive medical testimony, since it involves a controverted issue. This evidence showed very clearly that plaintiff had a severe and long-standing osteoarthritis in his left knee (and probably in his right knee) when he was examined on the day after the accident, and thereafter. Many X-rays confirmed this. According to at least one of the witnesses, this had been further complicated by gout. In 1956 plaintiff had been attended and treated for pain in his feet and ankles, edema in his ankles and legs, and pain in his knees; he had been put on a diet for reduction of his weight, with little success. He was off work from January until June of that year. Some of the medical witnesses thought that the effect of the fall on plaintiff’s left knee was minor and that there was no lasting result from it; that his real difficulty merely came from the long-standing osteoarthritis, complicated by the wear and tear or chronic trauma of bearing such enormous weight on his knees and ankles over a period of years; that the left knee joint was simply worn out and useless; also, that his surgical operations, and finally a complete stabilization of the left knee, were so caused. All of the doctors agreed that plaintiff’s weight was a materially adverse factor. Some of the medical witnesses testified that an accident or sprain could or might activate such a condition of arthritis in the knee; some testified that either the metal rod inserted for stabilization of the knee, or the surgical procedure generally, might have had some relationship to a condition of thrombophle-bitis for which plaintiff was treated on different occasions and for somewhat lengthy periods in 1961 and 1962; others said not. Based on this controversial medical testimony, along with hospital records, X-rays, etc., there was an issue as to whether or not the alleged fall aggravated the pre-existing conditions to any substantial extent, or whether plaintiff’s subsequent and final condition was due to the natural progress of those ailments and diseases.

Plaintiff’s three Points in his brief all involve alleged errors in instructions. The first is directed at defendant’s Instruction No. 8, which was as follows: “The Court instructs the jury that even if you find and believe that plaintiff slipped and was injured on April 11, 1957, on the step described in Instruction No. 1, nevertheless, if you further find and believe that plaintiff put his left foot down on said step and that he then moved his left foot to make room for placing his right foot on the same step and that his left foot slipped and if you further find and believe that plaintiff did not look at the step as he was putting his left foot on it and moving his left foot, and if you further find and believe that plaintiff’s manner of putting his left foot on said step and moving his left foot on said step was negligence, and if you find and believe that such negligence was the sole cause of plaintiff’s slipping and injury and that plaintiff’s slipping was not due to any improper and unsafe condition of said step, as submitted in other instructions of the Court, then plaintiff is not entitled to recover, and your verdict must be for defendant, Gulf, Mobile & Ohio Railroad Company.

“You are instructed that by the term ‘negligence’, as used in this instruction, is meant the want of that degree of care that any ordinary prudent person would have exercised under the same or similar circumstances.” The complaints are, in substance : that the instruction improperly hypothesized the manner in which plaintiff “manipulated” his feet; that it unduly commented upon facts favorable to defendant and omitted others, such as the position of plaintiff’s body, his right foot, his hands and his arms, his shoes, the size and location of the step, and construction of the door and the absence of light; that it erroneously hypothesized that plaintiff did not look at the step, thus inferring as a matter of law that a failure to look was negligence; and, finally, that the negligence of plaintiff was improperly submitted because there was no evidence of such.

Counsel cite several cases as illustrative of the principle that it is error to comment unduly on certain phases of the evidence, ignoring other material parts. Costello v. Kansas City, 280 Mo. 576, 219 S.W. 386; Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517; Bittner v. Crown Shoe Mfg. Co., Mo.App., 340 S.W.2d 142; Toburen v. Carter, Mo., 273 S.W.2d 161. There is no doubt about the existence or validity of that principle. The real question is whether a particular instruction has prejudicially violated it. No instruction can or should hypothesize all the evidence. In Costello, an instruction was held properly refused which stated as a fact that plaintiff had said that she looked down when alighting from a streetcar and, based thereon, required a verdict from what she saw or should have seen. The Court criticized the giving of undue prominence to the statement of what plaintiff had said. The elements which counsel claim should have been included here are largely details; all of the testimony on this phase of the case came from the plaintiff himself, and thus there was no controversy on the facts. In such a situation it is proper to hypothesize and submit only the ultimate fact issues. Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 500-501. There was no evidence whatever of the absence or extent of light at the step and nothing to indicate that one could not see the step if he looked, except for plaintiff’s remark on cross-examination, — “ * * * I never looked down, and we aint got no lights to see.” This was hardly sufficient to require the adverse party to hypothesize an inability to see the step, and if plaintiff desired the subject covered he should have offered an amplifying instruction. The jury had heard the uncontroverted evidence concerning all the matters which plaintiff now claims should have been included, and we do not find that any such omissions were prejudicial.

Counsel next suggest that contributory negligence is not a defense under the Safety Appliance and Boiler Inspection Act. That is true. Byler v. Wabash R. Co. (CA 8), 196 F.2d 9; 45 U.S.C.A. § 53. Liability is established upon proof of failure to comply with the act without specific proof of negligence, if the injury is shown to have been caused in whole or in part by a proscribed defect Amend v. Great Western Ry. Co. (DC Colo.), 158 F.Supp. 499; Byler, supra; McCarthy v. Pennsylvania R. R. Co. (CA 6), 156 F.2d 877. To this extent the provisions of 45 U.S.C.A. § 51 of the FELA are construed in “pari materia” with the Safety Appliance & Boiler Inspection Act. McCarthy, supra. But Instruction No. 8 was not a contributory negligence instruction; rather, it was a sole cause instruction. Under any of the federal acts the defect or failure must cause the injury in whole or in part, and an injury caused solely by plaintiff’s own negligence is a valid defense. Young v. New York, C. & St. L. Ry. Co., Mo., 291 S.W.2d 64; Robison v. Chicago & E. I. R. Co., 334 Mo. 81, 64 S.W.2d 660 (cert. denied 291 U.S. 682, 54 S.Ct. 558,78 L.Ed. 1069); Carter v. Atlanta & St. A. B. R. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236; Edmonds v. Southern Pac. Ry., 142 Cal.App.2d 519, 299 P.2d 8; Mooney v. Denver & R. G. W. R. Co., 123 Utah 224, 257 P.2d 947. In many respects the instruction in Young, supra, was analogous to the one given here. The fact that Young involved an alleged FELA violation is not sufficient to distinguish that case on the question of the propriety of a sole cause instruction. Counsel argue that, even so, a finding of plaintiff’s sole cause negligence here would be based upon speculation, particularly since there was no evidence of impropriety in his actions, or of a better way to perform the acts. There was some evidence as to how others left the cab, but in any event a jury is permitted to make its own findings on the exercise of ordinary care in matters not involving expert knowledge. In view of plaintiff’s own testimony, such a finding as was made here would require no more speculation than have the facts of many other adjudicated cases.

Counsel next argue that the hypothesization of a failure to look constituted “a finding by the Court as a matter of law” that such a failure would constitute negligence, and that an employee is not required “to look at the locomotive or test it * * The Act does not eliminate negligence as a sole cause. It requires no citation of authority to show that anyone, a railroad employee or a casual pedestrian, must ordinarily look where he is going if he is in a place where there is a possibility of danger. The federal acts do not guarantee a recovery to a plaintiff if he chooses to step off of a ladder or a step or a tender without giving reasonable attention to what he is doing. The jury here has found that plaintiff was negligent and that there was no defect. The submission of the failure to look was not submitted as an isolated ground for a finding of negligence, but merely as a part of the background for plaintiff’s hypothesized negligence in the “manner” of manipulating his left foot; the instruction, reasonably considered, cannot be construed as even authorizing a finding of negligence from a mere failure to look. The generalized complaints that the instruction is vague and confusing are denied. We do not consider any claimed conflict with plaintiff’s Instruction No. 1, for no such objection was made to the instruction at the trial, and in the motion for a new trial such objection was wholly unexplained. Civil Rules 70.02 and 79.03, V.A.M.R.

Counsel next assert error in Instruction No. 9. It bore only on the question of damages, and it was as follows: “The Court instructs the jury that plaintiff is not entitled to recover for any impaired or diseased condition he may have had pri- or to the injury, if any, on April 11, 1957, described in evidence, or for any damages, pain or suffering naturally resulting from any such condition or ailment, if any, which plaintiff had before the injury, if any, on April 11, 1957, which impairment, damage, pain or suffering are not the direct result of the injury, if any, sustained by plaintiff on April 11, 1957.

“The Court further instructs the jury that plaintiff is not entitled to recover for any impaired or diseased condition which he may have acquired after April 11, 1957, or for any damages, pain or suffering naturally resulting from such condition or ailment, if any, which plaintiff acquired after April 11, 1957, which impairment, illness, damage, pain or suffering are not the direct result of the injury, if any, sustained by plaintiff on April 11, 1957.”

The principal complaint of this instruction is that it excluded the allowance of damages for an aggravation of prior conditions and the fact that such conditions may have been rendered more difficult to cure. Counsel also suggest that the instruction is in conflict with plaintiff’s Instruction No. 2 which, in substance, submitted that the existence of prior abnormal conditions would constitute no defense to the responsibility of defendant for any aggravation of plaintiff’s injuries, and that defendant was responsible for all effects which “naturally and necessarily followed the injury”; in other words, that instruction hypothesized a liability for the aggravation of pre-exist-ing conditions. In the motion for new trial counsel again failed to elaborate the assertion of conflict, but in this instance we consider it, because the mere statement of the point and a reading of Instruction No. 2, make the intended reasons obvious.

It is true that a defendant is generally liable for the aggravation of preexisting conditions caused by his negligence or a statutory violation. Glore v. Bone, Mo., 324 S.W.2d 633; Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S.W.2d 698; Looff v. Kansas City Rys. Co., Mo., 246 S.W. 578. The line between an aggravation and the normal progress of a chronic pathological condition may be a hazy one, but under our practice a jury is entitled to make the finding if there is substantial evidence of aggravation. The medical witnesses, even those for plaintiff, did not seem too sure of an aggravation here but defendant makes no point of the sufficiency of that testimony and, with the testimony of plaintiff himself, a submissible issue was made. Does this Instruction No. 9 exclude a recovery for aggravation? We hold that it does not. It states, and correctly so, that plaintiff is not entitled to recover for diseased conditions which he may have had prior to “the injury” or for any damages resulting therefrom, and which are not the direct result of the injury. The “not” is a very material word. The most reasonable inference from this wording is that plaintiff could recover for any damage resulting from pri- or conditions which were also the direct result of the injury. This latter inference could only refer to aggravation. The instruction merely states, intelligently read, that plaintiff could not recover damages on account of pre-existing diseases or for the normal development thereof. The first paragraph of this instruction is substantially identical with the one approved in the case of Quigley v. St. Louis Public Service Co., Mo., 201 S.W.2d 169, loc. cit. 172, where it was held that the instruction did not exclude a recovery for aggravation. We see no reason to hold the contrary here. There the Court said, in part, loc. cit. 172: “It treated of two phases of one subject matter, to wit: A prior impaired condition of plaintiff. It first told the jury that plaintiff was not entitled to recover for this prior impaired condition. This is not questioned. The prior impaired condition might continue and inconvenience plaintiff in the future; and, next, with respect to this phase, the instruction informed the jury plaintiff was not entitled to recover for ‘damages, pain or suffering naturally resulting from any such condition or ailment, if any.’ * * * If the fall aggravated plaintiff’s prior impaired condition, such aggravation was not a ‘natural’ result of a prior impaired condition. Plaintiff was not entitled to recover of defendant for a result that was not a natural and direct, i. e., a proximate result of the fall.” Counsel say that by a “clever manipulation of words” it is stated that a pre-existing impairment is required to be the result of the injury. By no reasonable construction can such a meaning be reached. Counsel also argue that the second paragraph compounded the error and “vagueness” in the instruction; that it is so worded that it would exclude the thrombophlebitis which developed after the injury, although perhaps as an indirect result thereof even if related to a quiescent pre-existing condition. This paragraph, like the first one, merely excluded recovery for impairments, illness, etc., which were not the direct result of the injury. This was the same causative wording used in the preceding paragraph and in the instruction in Quig-ley, supra; indeed, it is most frequently used. We see no logical reason why the factor of possible causation should have been expanded and liberalized with reference to impairments which may have developed after the original injury. If plaintiff could not prove by substantial evidence that the thrombophlebitis was a result of the injury, there was simply a failure of proof. We do not find that the jury was misdirected, confused or misled. Baccalo v. Nicolosi, Mo., 332 S.W.2d 854, 859. We have chosen to consider this instruction on the merits, although there is authority to the effect that it could not have been prejudicial in any event because the jury found for the defendant and never reached the question of damages. Sparks v. Ballenger, Mo., 373 S.W.2d 955, 957. The contentions regarding Instruction No. 9 are disallowed.

The remaining point concerns defendant’s Instruction No. 7, which was as follows: “The Court instructs the jury that even if you find and believe that plaintiff slipped and was injured on April 11, 1957, on the step described in Instruction No. 1, nevertheless, if you further find and believe that plaintiff’s slipping was caused by an accumulation of snow or ice upon said step and was not directly caused or contributed to by any improper and unsafe condition of said step other than the accumulation of snow or ice, if so, then plaintiff is not entitled to recover, and your verdict must be for defendant, Gulf, Mobile & Ohio Railroad Company.” The objections now made in plaintiff’s brief to this instruction were in nowise presented to the trial court by objections at the trial or by assignments in the motion for new trial. No specific objections whatever were made to instructions at the trial. The entire assignment in the motion for new trial concerning this instruction was that it contained a “misdirection of law” and that there was “no evidence” for submission of the presence of snow or ice upon the step. The last point of plaintiff’s brief attempts to enlarge the assignment as follows: “Instruction No. 7 submitted by defendant, and given by the court over plaintiff’s objections, was an erroneous statement of the law in that it is in conflict with the Rule laid down by the Supreme Court of the United States in Lilly v. Grand Trunk R. Co., Infra, [317 U.S. 612, 63 S.Ct. 33, 87 L.Ed. 497] and Rule 229(d) of the Interstate Commerce Commission, pertaining to locomotives other than steam, in that it instructed the jury that no recovery could be had by plaintiff if his injury was caused solely by reason of an accumulation of ice or snow on the step in question. The rule is that an accumulation of ice or snow on a locomotive is a defect within the purview of the Federal Boiler Inspection Act as an unnecessary peril to life or limb, and that recovery can be had for injuries caused by the accumulation of such foreign substance even if such accumulation is not related to or caused by a mechanical defect, or is of a temporary nature. The rules of the Interstate Commerce Commission governing the inspection and maintenance of locomotives have the force of law and will be considered on appeal though not brought to the attention of the trial court.”

As thus indicated, plaintiff now attacks the instruction on the ground that, as a matter of law, the presence of snow or ice upon the step did not constitute a defense, even if the snow or ice was the sole cause of the fall and if there was no defect in the step as such; or, in other words, that the permitted presence of snow or ice on the step, in itself, constituted a defect within the meaning of the federal acts and the ICC Rule which counsel say should be considered as a part of the Safety Appliance and Boiler Inspection Act. These arguments are in nowise included within the appropriate assignment of the motion for new trial; the statement that the instruction contained a “misdirection of law” is wholly meaningless, unless explained. We find that there was substantial evidence of snow or ice on the step which was the only assignment properly raised in the motion.

Our Rule 79.03 provides in part as follows: “Where definite objections or requests were made during the trial in accordance with Rule 79.01, including specific objections to instructions, a general statement in the motion of any allegations of error based thereon is sufficient. If any specific objections to instruction have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must be set forth in the motion for new trial to preserve the error for review.” And see also Rule 70.-02. Our Appellate Courts have rather strictly enforced these Rules by requiring specific objections to all instructions at one place or the other. O’Brien v. City of St. Louis, Mo., 3SS S.W.2d 904, 908; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 711-712; M.F.A. Co-Op. Ass’n v. Murray, Mo. App., 365 S.W.2d 279, 288-289; Wren v. St. Louis Public Service Co., Mo.App., 355 S.W.2d 365, 372; Nelson v. St. Louis Public Service Co., Mo.App., 360 S.W.2d 356, 361; Dial v. Seven-Up Bottling Co., Mo., 373 S.W.2d 53, 58. In O’Brien, supra, the Court said in part, at loc. cit. 908, of 355 S.W.2d: “The sound and logical reason for this Rule is that specific objections to instructions are to be presented to the trial court where the error, if any, can be corrected without the delay and expense of an appeal. If they are not so presented the party is deemed to have waived them.”

It is immaterial that Respondent has not raised this point; we enforce our own rules with or without suggestion. Were it otherwise, the purpose of the Rules might well be perverted.

The judgment will be affirmed. It is so ordered.

All of the Judges concur.


source: Caselaw Access Project

author: HYDE, Presiding Judge.

license: Public Domain

text:
    Robert J. BAKER, Respondent, v. Vern T. BICKEL, Appellant.
    No. 50148.
    Supreme Court of Missouri. Division No. 1.
    Dec. 14, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 11, 1965.

      - William M. Howard, Bryan, Cave, Mc-Pheeters & McRoberts, St. Louis, of counsel, for respondent.
    H. Jackson Daniel and Bernard A. Ruth-meyer, Jr., St. Louis, for appellant.
   HYDE, Presiding Judge.

Action for damages for false representation in which plaintiff sought both actual and punitive damages. Plaintiff had verdict and judgment for $18,500 and defendant has appealed.

Plaintiff and defendant were friends in high school around 1940 and remained friendly seeing each other occasionally thereafter. In November 1957, after five years’ employment as a general supervisor with General Motors, plaintiff left to come back to Kansas City. He went to see defendant and was offered a position in his business of organizing and operating health studios in which memberships were sold to the public. These studios were equipped with exercise machines and individual programs for members were designed for body development and health of members by the studio officers. Memberships were sold on an annual basis, a term of years or for lifetime, with emphasis on long term and life memberships. Plaintiff started as an instructor, soon becoming a studio manager in Kansas City, then going to Chicago as a district manager. At the time of his employment, there had been discussion of plaintiff obtaining an interest in the organization and in 1958 when corporations were created to operate two studios in St. Louis (one for men and one for women) plaintiff went there as manager and became vice-president of each. On January 23, 1959, defendant sent plaintiff the following letter, containing the alleged misrepresentation on which this suit is based: “Dear Bob: Here is a subscription agreement to the thirty per cent equity in each of the studios. You set up the payment arrangement to suit yourself. We have a(n) $80,000 investment in those two clubs. Thirty per cent of that would be $24,000, so the $2400 you are paying is ten per cent of cost only. The stock purchase agreement will protect you ‘income tax’ wise on this difference in cost and what you pay. Send these back when you wish. You can pay it off sooner if you like. The sooner the better as far as you are concerned. If you leave for any reason, I’ll see that you get back any money you have invested. (Signed) Vern Bickel.” (Emphasis ours.)

Plaintiff bought the stock on May 4, 1959, signing on that date the subscription agreements (one with each St. Louis Studio corporation as seller) which provided that if the buyer decided to sell the stock purchased he should first offer it to the corporation which had the right to purchase it within 90 days for the amount paid to it by the buyer “plus any increase in value of such stock since the date said stock was purchased up to the time written notice was mailed as required under this agreement to be determined by the corporation’s public accountant.” On advice of an attorney consulted by plaintiff before he purchased the stock a provision was added to the subscription agreements that the 30 shares he.was buying in each corporation “will always equal 30% equity unless approved in writing by 2nd party.” Plaintiff said he purchased the stock “on the potential rather than the actual value of it * * * potential earnings”; and that “the net assets worth are inconsequential of the earning power to some degree,” but “this business is based on the person.”

Plaintiff said he asked no 'questions of defendant about the purchase, but did advise with an attorney about stock purchase procedures. He stated that he did not examine the books' and records of the corporations before the purchase but, according to defendant, plaintiff saw the corporation records and spent considerable time with the bookkeeper. Plaintiff stated that he relied only on the letter from defendant. Between the offer of the stock in January and the purchase in May, plaintiff received profit and loss statements and he was shown what he was told was a trial balance sheet. During his employment plaintiff frequently submitted corporate financial statements to lending institutions, in discounting corporate paper, and these showed the capital investment. He was never refused any records or books, but he said he made no effort to examine the books until after he left the employment. He testified that he did not consider the $80,000 representation unbelievable in view of the appearance and condition of the studios, their furnishings and equipment. Plaintiff also testified that one of the “biggest things” he relied on was his confidence in defendant and in his integrity and good reputation for integrity. He stated that if he had examined the books he would not have understood them. He also said that if he did not feel that he could rely on the truth of the statement (defendant’s), or if he had to have an expert examine the books, he would not have been working for defendant in the first place. Plaintiff paid the $2,400 in May 1959, and received a $4,500 dividend in October 1959. Plaintiff does not claim this dividend was improperly paid and he refused to sell the stock to defendant for $2,400 when he left his employment voluntarily near the end of 1959 because of the health of his daughter and the long hours of his work. (Defendant testified that plaintiff said it was worth $5,000 to him.) Plaintiff said he did not know the representation was false until the next year after leaving the company when he was told by defendant that the stock was worthless.

Thomas H. Wolff, a public accountant, testified to the effect that at the time of the alleged misrepresentation the books indicated an original investment of $2,000 in capital stock ($1,000 for each corporation) and that the net worth of the two companies (on the basis of assets less amounts due creditors) was $41,555.97 on June 30, 1959; that the book value of the stock owned by plaintiff would be thirty per cent of the net worth, which would be $12,466.-79; that assuming capital stock of $80,000, as the investment mentioned in the letter, rather than $2,000, as reflected by the books, the net worth would be increased by $78,000, thirty per cent of that total of net worth would be $35,866, and the difference between plaintiff’s interest in the two resulting net worths would be $23,400. He also testified that the books did not reflect accurately the financial condition because they did not state any liability for future service due on long term memberships.

From defendant’s testimony it appears that the procedure followed was to create separate corporations to operate studios in each city, there being twelve in 1959, with a management corporation as the majority stockholder in each. The management corporation acted as banker for the others receiving their funds and paying their bills. Defendant and his mother owned a majority of the stock in the management corporation. Key men in the local corporations met with defendant and established selling methods, record keeping and other business procedures, with defendant having a veto power because of his majority stock ownership. Defendant’s testimony as to the St. Louis operation was that, after he had been in the health club business in Kansas City for several years, he became a regional manager for the Houston Health Club and formed the two St. Louis clubs, leasing a building for them and supervising its remodeling and the purchase and installation of equipment. After three months’ operation for the Houston organization, defendant took it over organizing the two operating corporations in 1958. Defendant’s version of the meaning of the statement in his letter to plaintiff of an $80,000 investment was that this was the cost of the remodeling done and equip- ! ment purchased. Defendant said the actual cost was $128,482 and he was making a conservative estimate in his letter. His testimony is not clear about the Houston Club’s participation in this. He said Houston was willing to back it at the start hut that membership sales were so good that Houston advanced nothing. He also said, “Houston had paid, according to our records, had about $97,000 before we even took the clubs over”; and that “the Houston Company took in the income and paid the bills on that until we had paid off nearly $100,000, at that time we formed the corporations and took over the assets.” On cross-examination, defendant said they paid Houston $1,000 for these assets and they were not shown as assets of the St. Louis corporations at cost because Houston had paid for them. Apparently he meant that Houston paid the cost from the memberships he sold but that his St. Louis corporations took over the assets and the membership obligations. The business was closed in the fall of 1960 when a chattel mortgage on equipment and furniture was foreclosed. Defendant admitted that all membership sales were shown as income of the year in which they were sold with nothing as to future liability shown on the books, although they were discounted at finance institutions to get cash. Defendant also admitted that memberships, including life memberships, were sold up until two days before the doors were closed because of the foreclosure.

Defendant’s first point substantially is that the trial court erred in entering judgment on the jury verdict because the verdict was contrary to plaintiff’s own evidence, also claiming in any event it is excessive because of plaintiff’s accountant’s testimony as to its book value. Defendant’s argument on this point is: “The verdict of the jury was based on testimony adduced from plaintiff’s witness, Thomas H. Wolff, to the effect that assuming $80,000 rather than $2,000 was the amount of the investment, in capital stock only, * * *. The fact that the representation was made about the investment, along with the later reference to ‘cost’, negate any interpretation that the representation referred to the amount of capital stock in the corporation. There is no reasonable basis for a jury or any reasonable man to conclude that the represented $80,000 investment was an investment in capital stock only.”

Defendant filed a motion for directed verdict at the close of plaintiff’s case and at the close of the whole case and alleges as error in his motion for new trial the refusal to direct a verdict. As stated defendant, in his brief, contends the verdict was contrary to plaintiff’s own evidence saying the alleged fraudulent misrepresentation cannot reasonably be interpreted to refer to a capital stock investment. We think this is sound and although defendant has not properly preserved it by specific allegations of his motion for directed verdict, motion for new trial and points and authorities in his brief, we can consider it under Rule 79.04, V.A.M.R. See Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365; Fletcher v. North Mehornay Furniture Co., 359 Mo. 607, 222 S.W.2d 789; Millar v. Berg, Mo.Sup., 316 S.W.2d 499, and cases cited. We do so because, as hereinafter stated, we find it was prejudicial error to give Instruction No. 6 on plaintiff’s request.

The theory of plaintiff’s petition seems to be that the reference in the letter of January 23, 1959, to an $80,000 investment was a representation that this was the capital stock investment in the two corporations when the capital stock of each was $1,000. Plaintiff’s evidence from his accountant was on that basis and the measure of damage instruction, No. 9, given by the court at plaintiff’s request authorized as damages “such sum, if any, as represents the difference between the actual value of the said stock on May 4, 1959 and the value that the said stock would have had on said date if the false representation made by Defendant, i.f any, had been true, less the dividend of $4,500 received by Plaintiff on said stock.” Plaintiff’s evidence of the value of the stock on that date was the testimony of his accountant of the book value of the stock based on net worth of the companies as shown by their books on June 30, 1959. Plaintiff argues that the stock could have been found worthless because his accountant testified that liabilities for future performance of long term memberships were not shown on the books. However, while the accountant said the net worth of the corporations would be considerably less than the amount reflected on the books, because of these liabilities on memberships, he also said: “I have no way of computing it.” Moreover, plaintiff then actively engaged in the management of these corporations, knew about the business they were getting and said he made the purchase because of its potential for earnings, as to which he had knowledge because he was conducting its sales, and when plaintiff left the company in November 1959, he would not accept defendant’s offer to pay him $2,400 for it. It appears that the accountant’s testimony assumed a $2,000 value for the actual stock issued and $80,000 as the value of the stock considered as represented to be in existence as the capital stock of the two companies; and the jury’s verdict was based on these figures.

Although the business seems to have been operated on an unsound basis, our conclusion is that the letter of January 23, 1959 cannot reasonably be construed as a representation that the capital stock of these two corporations was $80,000. The meaning of the term “investment” must be determined from the whole letter, the accompanying stock subscription agreements and surrounding circumstances. Its reference to this amount as “investment in those two clubs” and to the price asked as “ten per cent of cost,” at most, could be construed as cost of assets owned only, although defendant apparently included in it also all expenses of remodeling the leased building as well as cost of equipment purchased. Moreover, plaintiff, as vice-president, was managing the corporations involved, getting a salary of $18,000 a year. Plaintiff was a graduate of William Jewell College with an A.B. degree and had taken a course in accounting at Kansas City Junior College, had five years’ experience with General Motors in a supervisory position paying a salary of $10,000 a year and had owned General Motors stock. He had received the monthly profit and loss statements of these two corporations, got their financial statements to present to banks and finance companies and presented them to sell notes of purchasers of memberships, and used advertising saying that each studio had from $30,000 to $60,000 equipment. He waited from January to May before accepting defendant’s offer and during that time consulted an attorney on whose advice he added the provision that his interest should always be 30%. All of this shows that the figure stated in the letter reasonably could not have been construed by him as being the amount of the capital stock of the two corporations and he did not actually say it was. He said he relied on the $80,000 figure as invested in assets and never said he thought that was the amount of the capital stock. Plaintiff’s attorney offered in evidence his following deposition statement: “Q. You didn’t know whether there was $80,000 worth of assets in these two St. Louis stores (studios) or not? A. I assumed that to be true.” Consideration of the entire record convinces us that plaintiff reasonably could only have understood the representation to be cost of assets. The verdict and judgment based on the theory of a representation of $80,000 in capital stock is not supported by substantial evidence and cannot stand. The computations made by plaintiff’s accountant were solely on that theory and therefore the judgment must be reversed.

Nevertheless, defendant was not entitled to a directed verdict because facts are stated in plaintiff’s petition and shown in evidence which could be construed as showing a false representation of the amount invested in assets which he might he entitled to submit to the jury. For the reasons hereinabove stated our view is, particularly because of the reference to “cost,” that it does not seem reasonable to construe the representation as one of net worth of the corporations. Nevertheless, such recent cost would be material in determining net worth. Plaintiff’s accountant’s testimony was that the books of the two corporations showed a total cost of fixed assets of $35,077.23, which he said included furniture, fixtures, gym equipment and leasehold improvements to the leased premises; and the jury could have found this was the true amount of such investment instead of $80,000, as there was no claim that any of the original assets, all paid for in 1958, had been sold, transferred, removed or lost. Apparently defendant was including in the $80,000 figure cost of assets and improvements made by the Houston Club when he began operations in St. Louis for them and for which his corporations paid Houston $1,000. Defendant’s testimony did not show how the original costs paid by Houston could be amounts invested by his corporations. Considerably lower actual cost would make a difference in the net worth of his corporations and the value of their stock. See Zeitinger v. Steinberg, Mo.App., 277 S.W. 953, 957; see also Laird v. Keithley, Mo.Sup., 201 S.W. 1138, 1143; Wagner v. Binder, Mo.Sup., 187 S.W. 1128, 1147-1150; Shepherd v. Woodson, Mo.Sup., 328 S.W.2d 1, 6, 7, and cases cited; 23 Am.Jur. 834, Fraud and Deceit, Sec. 63; 37 C.J.S. Fraud § 57b(2), p. 342. A representation as to the amount invested would be a representation of a fact and not a representation of value as defendant contends ; and therefore is not within the rule of State ex rel. Burton v. Allen, 312 Mo. 111, 278 S.W. 772; Weitzman v. Weitzman, Mo.Sup., 156 S.W.2d 906, cited by defendant. Plaintiff’s evidence did not show what difference this would make in the value of the stock but it seems reasonable that, if the cost of the corporations’ assets was less than half of the amount defendant represented had been invested in them, this would make some difference in the value of their stock. It would make a difference in the book value of the stock and that could have some bearing on its actual value. This representation was made in less than a year from the time the St. Louis corporations commenced business and the record shows no change of conditions up to the time plaintiff purchased the stock. “According to the weight of authority generally, the proper measure of damages in a case of this kind is that ‘the defrauded party is entitled to the difference between the actual value of the property and what its value would have been if it had been as represented.’ Annotation, 124 A.L.R. 37, 38. This is often referred to as the majority or ‘Benefit of the Bargain’ rule.” Smith v. Tracy, Mo.Sup., 372 S.W.2d 925, 938, and authorities cited. Plaintiff may be able to show value greater than the amount of the dividend received if the cost of assets owned had been $80,000, although we said in Smith v. Tracy, 372 S.W.2d 1. c. 939, in the absence of other evidence of value of property, if it had been as represented, its value would be considered to be the contract price. We also held in Morrow v. Franklin, 289 Mo. 549, 571, 233 S.W. 224, 230, that the subsequent history of a corporation is admissible to show actual value at the time of purchase, where the stock became worthless during the next year. Therefore, we conclude that the cause should be remanded.

Concerning Instruction No. 6, which was based on Instruction No. 8 in Morrow v. Franklin, 289 Mo. 549, 574, 233 S.W. 224, 232, we have the view that, under the circumstances of this case, the jury should not have been instructed as a matter of law that plaintiff had a right to rely upon defendant’s representation. “[T]he right to rely on a representation is generally held to be a question of fact.” 24 Am.Jur. 143, Fraud and Deceit, Sec. 296. We consider this as an issue for the jury in this case because plaintiff was the manager of this business and took almost four months to reach his decision to buy, obtaining advice from his attorney during that time. See Monsanto Chemical Works v. American Zinc Co., Mo.Sup., 253 S.W. 1006; Luikart v. Miller, Mo.Sup., 48 S.W.2d 867, 869; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190, 197; Sheldon v. Brace Motor Co., Mo.App., 210 S.W.2d 110, 113; 37 C.J.S. Fraud, § 129, p. 455; Chase v. Rusk, 90 Mo.App. 25, 30. The specific criticism of this instruction urged here was not made and ruled in the Morrow case and the facts of that case were different concerning the plaintiff’s means of knowledge. In his brief, plaintiff claims a confidential relationship as a basis for reliance but that likewise does not appear as a matter of law.

Since this case may be retried, we consider defendant’s claim concerning Instruction No. 2, although not properly raised because not mentioned in his motion for new trial, because the same contention continues to be made by others; namely: that the burden of proof in a case of fraudulent misrepresentation tried to a jury must be greater than in other cases tried to a jury. This is not true. See Weston v. American National Assurance Co., Mo.App., 32 S.W. 2d 789, 791; Mueller v. Burchfield, 359 Mo. 876, 224 S.W.2d 87, 13 A.L.R.2d 153; see also discussion in 24 Am.Jur. 118, Fraud and Deceit, Sec. 278. Parties who make this contention cite equity cases, in which such remedy as cancellation is sought, but these have no application to jury cases. For proper burden of proof instruction in future jury cases, see MAI No. 3.01, June 1964 supplement. Our rule is that the burden of proof on fact issues to be decided by a jury does not change with the kind of case to be tried.

The judgment is reversed and the cause remanded.

All concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Agnes L. JONES, Appellant.
    No. 49963.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 11, 1965.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Hugh J. White, St. Louis, for appellant.
   HENLEY, Judge.

Defendant was charged by an indictment with unlawfully selling a narcotic drug, commonly called marijuana, to Bob Stewart (also known as John Robert Steinkoetter) on August 17, 1962, in the City of St. Louis. Section 195.020. (All references to Statutes and Rules are to RSMo and V.A.M.S., and V.A.M.R., respectively.) A jury found her guilty as charged and assessed her punishment at five years’ imprisonment in a State Correctional Institution of Missouri. Section 195.200. She appeals from the ensuing judgment and sentence. Defendant was represented by counsel at the trial and in this court, her able counsel on appeal not being the same as in the trial court.

Defendant has filed a brief and makes the points and argues that the trial court erred, (1) in refusing to instruct the jury on the defense of entrapment, (2) in refusing to give five instructions offered by her, (3) in excluding from evidence defendant’s Exhibits B and C, being a written statement of a witness for the State, (4) in overruling her motions for judgment of acquittal at the close of the State’s case and at the close of the whole case, and, (5) in giving instruction No. 1.

A brief summary of the evidence will suffice. On August 16, 1962, John Robert Steinkoetter (known also by the name of Bob Stewart as designated in the indictment) met with police officers of the St. Louis Metropolitan Police Department and police officers of St. Louis County. He had purchased narcotics from defendant beginning in April or May, 1962, and agreed to try to buy narcotics from her again while the officers watched. For this purpose arrangements were made for a meeting the next day of Steinkoetter, the City Police Officers and an agent of the Federal Bureau of Narcotics at Forest Park. At the agreed time he met these officers and the Federal agent behind Jefferson Memorial in the park. Detective Longinette gave him $20 in currency with which to make a purchase of narcotics from the defendant. In the presence of this Detective, Steinkoetter called defendant from a nearby public telephone booth and upon reaching her told her that he needed morphine or heroin. He asked her to meet him at a designated place in the park where he would give her $20 for which she was to get and bring the narcotics to him. Shortly after this telephone call defendant was seen by the detectives and Federal agent to drive up alone in an automobile to the place in the park suggested by Stein-koetter. He gave her the $20 and the telephone number at the public telephone booth in the park where he could be reached. She drove off and was followed in an automobile by the Federal agent and one of the detectives. After calling Steinkoetter several times during the next several hours to tell him she could not get the requested narcotics, he told her to get marijuana. Within a short time after this last telephone conversation defendant was seen by the officers to again drive up in the same automobile, stop and hand Steinkoetter a package and drive off. Defendant had paid $2 for the package which she knew contained marijuana and returned none of the $20 to Steinkoetter. Steinkoetter immediately walked to the officers nearby and gave them the package handed him by defendant. A chemical examination of the contents of this package confirmed that it was marijuana. No contact was made during any of this time between the police officers and defendant.

Defendant and Steinkoetter had been close and intimate friends for many months before the occasion in question. She testified that between April and August he had persuaded her by threats and through their intimate relationship and her apparent sympathy for him to take narcotics to him. On many occasions she had seen him take “pills” for what he described as pain and which she assumed were narcotics.

Defendant makes the point and argues in her brief that the court erred in refusing to instruct the jury on the defense of entrapment. The only assignment of error in her motion for new trial referring to the court’s failure to instruct was “That the court erred in refusing to accept and to offer to the jury three separate defense instructions on the subject of entrapment.” Is this assignment in her motion for a new trial tantamount to an assignment “that the court erred in refusing to instruct the jury on the defense of entrapment”, as stated in her brief, and if so, would the last quoted so-called assignment be sufficient compliance with Rule 27.20 requiring that a motion for new trial set forth in detail and with particularity the specific grounds therefor?

Where the evidence directs the submission of the defense of entrapment as a part of the law of the case and instructions on that defense are offered by defendant and refused by the court for reason that the instructions are improper, the court should properly instruct the jury on that defense and for failure to do so the court errs. State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, 620 [6-8]. But that is not to say that such failure need not be specifically assigned as such in the motion for a new trial in order to be available on appeal. The failure of the court to instruct on all of the law of the case is required to be specifically called to the court’s attention in a motion for new trial setting forth in detail and with particularity the grounds therefor so that the trial court may grant a new trial, if the complaint is well founded, without the delay or expense incident to an appeal. Where defendant does not specifically assign this failure to instruct as a ground for new trial, the alleged error is not preserved for appellate review. State v. Lewkowitz, 265 Mo. 613, 178 S.W. 58, 64 [10-14]; State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455 [15-16]; State v. Bagby, 338 Mo. 951, 93 S.W.2d 241, 249 [18]; State v. Burrell, 298 Mo. 672, 252 S.W. 709, 711 [1]; State v. Luttrell, Mo., 366 S.W.2d 453, 459 [3], The assignment of defendant in her motion that the court refused to give three instructions offered by her points only to error in failure to give those particular instructions, not specifically that the court should have given a proper instruction of its own motion or should have corrected or modified the instructions offered. The point is not preserved for appellate review and is ruled against defendant. Nor would the point raised by defendant have met the requirements of Rule 27.20 had it been preserved for review by alleging it in her motion in the words of her brief.

Defendant contends in her brief that the court erred in refusing instructions numbered 4, 5, 6, 7, and 8 offered by her whereas she alleges as error in her motion for new trial the refusal of only three instructions on the subject of entrapment. Of the five instructions offered by defendant those numbered 5, 6, 7, and 8 submit the defense of entrapment. Number 4 submits that if the jury found that defendant acted in Steinkoetter’s behalf at his request, and not in her own behalf, in purchasing and delivering the narcotic to Steinkoetter she would not be a “seller” [within the meaning of § 195.020] and therefore could not be convicted. The instruction is not on the subject of entrapment so we may assume she does not refer to No. 4 in stating that the court erred in refusing to give an undesignated three on this subject. She does not specifically point out in her motion which three of the remaining four instructions the court erred in refusing to give. Nor does she state in detail and with particularity in her motion the specific grounds or reasons why the refusal of these instructions, or any one of them, was error. Rule 27.20; State v. Pope, Mo., 364 S.W.2d 564, 567 [2,3]. The refusal of the instructions is not subject to review and the point is ruled against defendant.

Defendant next assigns as error the refusal of the court to admit in evidence defendant’s Exhibits B and C, being a longhand statement of the witness Steinkoetter allegedly absolving the defendant of guilt. Exhibits B and C are identical, Exhibit B being a copy of C. The defendant does not refer us to the page of the transcript where these exhibits were offered. We find, however, that she did offer B but that she stated to the court without equivocation when other exhibits were offered by her that she was not offering C, the original. It is elementary that the court could not err in refusing to admit in evidence an exhibit not offered.

Her announced reason for offering Exhibit B was for the purpose of using the statement to impeach the witness Steinkoetter on cross-examination. While discussing this statement with counsel in chambers the court read it into the record. In ruling on the offer the court stated that it would not be admitted at this time for the reason it was not contradictory of any then material testimony of the witness. We do not find wherein the statement contradicts any previous testimony of the witness on any material matter which was called to the court’s attention and for which it was specifically offered. And the court did not then err in sustaining the State’s objection to the offer. Defendant contends in her brief that at a specified point later in Steinkoetter’s testimony this statement was again offered and refused for the reason that it was a privileged statement given by the witness, a Catholic, to a Catholic priest. The statement (Exhibit B) was not offered at this point. The witness was asked whether he recalled making this four-page statement to Father Freuler; he claimed that he considered as in confidence and privileged what he had told the priest, and the court ruled “ * * * I won’t require him to answer anything that he communicated to those two men (Father Freuler and another Priest) at that time. That’s his privilege. * * * ” No complaint is made here of the court’s ruling on that testimony, and, as stated above, the statement referred to was not then offered or refused by the court. And it is the latter alleged (but misconstrued) action of the court the defendant assigns as error. This contention is ruled against defendant.

Defendant contends that the court erred in overruling her motions for judgment of acquittal filed at the close of the State’s case and at the close of the whole case for the reasons, as stated in her brief, “that there was no credible and probative evidence presented concerning a sale of narcotic drugs by appellant to Bob Stewart.” At the close of the State’s case defendant submitted evidence in her defense and testified in her own behalf. She waived any claim of error in overruling her motion filed at the close of the State’s case. State v. Anderson, Mo., 375 S.W.2d 116, 121 [15], The brief summary of the evidence bespeaks the sufficiency thereof to sustain defendant’s conviction. The point is ruled against defendant.

As the last point in her brief defendant contends that that portion of instruction No. 1 stating that the word sell or “sale”, as used in the instruction, “includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee”, causes the instruction to be confusing, contradictory and misleading to the jury; that the court therefore erred in giving the instruction. Defendant does not assign the giving of this instruction as error in her motion for new trial and the point is not preserved for review. State v. Alberson, Mo., 316 S.W.2d 529, 532 [4],

Assignments numbered 4 and 5 of defendant’s motion for new trial have not been briefed in this court and are deemed waived or abandoned. Rule 28.02. State v. Ash, Mo., 286 S.W.2d 808 [15].

We have examined the record and find no error respecting the sufficiency of the indictment, verdict, judgment and sentence.

The judgment is affirmed.

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Eugene G. TIGHE, Defendant-Appellant.
    No. 50241.
    Supreme Court of Missouri. Division No. 2.
    Dec. 14, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 11, 1965.

      Robert L. Hyder, Melvin Englehart, Jefferson City, for plaintiff-respondent.
    Daniel P. Reardon, St. Louis, for appellant.
   BARRETT, Commissioner.

In the acquisition of right-of-way for the Mark Twain Expressway (U. S. Route 40) in the City of St. Louis, the state, in 1958, condemned the appellant Eugene G. Tighe’s unimproved 1.913 acre tract of land known as 4400 North Broadway. The commissioners to assess damages made an award of $75,000 and both the landowner and the state filed exceptions to the award. In the circuit court there was no formal record of a waiver, but the parties “by entering into trial before the court without objection” (Sup.Ct.Rule 69.01 (b) (4) ) in fact waived a trial by jury. The circuit court, at the conclusion of a lengthy trial, made a general finding and for the appropriation of Mr. Tighe’s land, assessed “the fair market value of the property taken” at $41,500. Subsequently the landowner filed a request that the court “prepare and file a brief opinion containing a statement of the grounds for its decision and the method of determining any damages awarded.” Sup.Ct.Rule 73.01(b). In accordance with this request the court stated and found “the land in the quarry area to contain an unstable fill which would not support a masonry building without extensive piering.” (Italics supplied.) The court stated that the landowner’s evidence of $145,000 damage was considered but stated that this value was “based upon the assumption that the fill in the quarry area was stable.” In addition the court considered the state’s evidence that the landowner’s damage, in view of the unstable fill, was but “25 cents to 40 cents per square foot.” But the court “determined the land to, be worth 50 cents per square foot, and multiplied the 83,000 square feet, which the Court found to have been appropriated, by 50 cents.” With this supplemental statement of grounds of decision in the record, and after the overruling of his motion for a new trial, the landowner appealed.

In this court the landowner makes these points: one, that for three reasons the “evidence in this case is not sufficient to support the judgment of the Court.” The three reasons are (a) that the court ignored •and failed to give any credence to the commissioners’ report, (b) that the court’s finding that the fill “would not support a masonry building” is not supported by competent evidence, and (c) that the “opinions of plaintiff’s experts as to the value of •defendant’s property were entitled to little, if any, weight.” His second point is that the court “erred in not permitting defendant to introduce evidence of comparable •sales and show that the opinion of his expert was entitled to greater weight.” In response to these points the state contends, ■one, that "the judgment of the trial court is sustained by competent and substantial evidence” and, second, that the court properly refused to permit the landowner’s expert witness to testify to the sale price of other property because he could not state the source of his information. In connection with its first contention the state makes these points; (a) that the landowner ■“failed to sustain the burden of proof as to the reasonable market value of the land,” (b) the report of the commissioners “became functus-officio” upon the filing of exceptions “and was not to be considered as evidence by the trial court,” and (c) that the record supports the finding that a masonry building could not be constructed in the quarry area of the land “without extensive piering.”

The respective contentions have .been set forth in this detailed manner because it is apparent from their mere recitation, particularly when considered in connection with their arguments and citation of authorities, that in presenting their case on appeal the parties have not carefully observed the force of the important fact that this was a court-tried case. This is a condemnation proceeding but there does not appear to be any valid reason, certainly since the adoption of the Civil Code of Procedure in 1943, for one method of appellate review of court-tried condemnation cases and another method for other cases tried by the court without a jury. And the procedure governing “cases tried upon the facts without a jury’ has long provided that “The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature.” Sup.Ct. Rule 73.01(a) (d); V.A.M.S. Sec. 510.310 (1) (4). The statutes regulating the procedure in the exercise of the power of eminent domain do not in specific terms make the civil rule and statute applicable to condemnation proceedings but they do “give the right” upon exceptions to a trial by jury. RSMo 1959, Sec. 523.060, V.A. M.S. And while the terminology is now rather unusual if not quaint the statutes also provide that on exceptions the court “may order a new appraisement, upon good cause shown.” And, at the request of either party, “Such new appraisement shall, * * * be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages.” State Highway Commission, State ex rel. v. Vorhof-Duenke Company, Mo., 366 S.W.2d 329. And of course it is fundamental that “the right” to a jury trial, in condemnation as well as in other civil actions, may be waived, and, as indicated, one of the accepted methods of waiving a jury trial is the one here employed by the parties, “by entering into trial before the court without objection.” Sup.Ct.Rule 69.01(b) (4); V.A.M.S. § 510.190(2) (4); Chicago, M. & St. P. Ry. Co. v. Randolph Town-Site Co., 103 Mo. 451, 470, 15 S.W. 437, 442 (a condemnation case.) This is an excessively belabored way of saying that upon appeal of this court-tried condemnation case the general rules apply and the review in this court is necessarily de novo or “upon both the law and the evidence as in suits of an equitable nature.” Sup.Ct. Rule 73.01(d).

The significance here of noting the scope of appellate review is that the burden of proof, the admissibility or inadmissibility of certain evidence, including the report of commissioners or the sales of other property, even whether the trial court judgment “is sustained by competent and substantial evidence,” (Schmitt v. Pierce, Mo., 344 S. W.2d 120, 122) are all beside the point. The appellate court is admonished that “The judgment shall not be set aside unless clearly erroneous.” And not only is the review in this court anew but “The appellate court shall consider any evidence which was rejected by the trial court and duly preserved for the appeal when the appellate court believes such evidence to be admissible.” Sup.Ct.Rule 73.01(d). With these rules in mind it is assumed, solely for the purposes of this opinion, that any rejected testimony was admissible in evidence and, even though the landowner objected and excepted to the commissioners’ award, that it too was before the court for whatever it was worth. See, however, as a caveat, to note but a single instance and that a jury-tried case, State ex rel. State Highway Commission v. White, Mo. App., 254 S.W.2d 668, 670-671.

Mr. Tighe’s tract of land fronted 491 feet on Broadway with a depth to Bissell of 165 feet. Broadway is a main traffic artery from downtown St. Louis to the city limits, and adjacent streets, Bellefontaine, Cornelia and Eleventh (the southern boundary of the tract) are frequently used for heavy truck traffic. In the vicinity there are commercial establishments, truck terminals and some manufacturing plants. This 1.913 acre tract, 83,323 square feet, was, as Mr. Tighe said, “the largest assembled parcel of vacant property on North Broadway.” Mr. Tighe was in the business of manufacturing truck bodies and “assembled” this tract of land in 1946 “for a body shop,” a project that he did not carry out. The area and this particular property were zoned “J” Industrial and he claimed that its highest and best use was for “a truck terminal, any kind of manufacturing plant, a supermarket because it would have had a tremendous area for, to park cars on, any supermarket; it could have been the largest gasoline station in the United States.” Some of Mr. Tighe’s witnesses valued some property in the area at $325 a front foot and this property at $350 a front foot, approximately $170,000. Another expert witness gave it as his opinion that the fair market value of the property on the date of its taking, December 1958, was $145,000. This witness, incidentally, said that the property had been vacant for many years and that “the soil condition is normal for the area.”

While there were 83,323 square feet in the lot, approximately 53,000 square feet in the center of the tract was an abandoned quarry, filled, Mr. Tighe said, in 1922 or 1923. Six of the state’s witnesses, some of them geological engineers, made numerous tests and borings at various depths and their analysis was that the quarry had been filled with cinders, bricks, mortar, rock fragments, wire, metal parts and pottery, a non-compacted heavy debris. The implication of all this testimony was that the quarry was not filled with the proper material and therefore would not support the type of building required by the applicable fire regulations, a structure of “masonry and closed walls.” Other state witnesses gave it as their opinion that the property was not suitable for a truck terminal or a filling station. One expert witness said that the highest and best use of the property was “small industrial” and even that type of structure “would have to be on piling.” It was the opinion of this witness that the property “had an aggregate value of $30,-700.” Another expert witness was of the opinion that the highest and best use “would be some sort of a development that would be of an industrial type on the land which has not been filled, and surface storage on the area of the former quarry which is filled ground.” It was the opinion of this witness that the reasonable market value of the land in 1958 was $33,200.

There is an enormous disparity and conflict in all the testimony as to the land’s best use and value, $170,000 or $145,000 to $30,700 or $33,200, neither of which hears any relation to the commissioners’ award of $75,000. Necessarily, therefore, on appeal “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Sup.Ct.Rule 73.01(d). Then of course there is the indubitable fact that the plot remained unimproved from the ■date of Mr. Tighe’s purchase in 1946 to the date of its appropriation by the state in 1956. In short, after a more painstaking ■consideration of the record and exhibits than indicated by this brief résumé, this court on a review anew finds the facts and the fair market value of the appellant’s land at $41,500, as the trial court found them, and accordingly affirms the judgment.

STOCKARD and PRITCHARD, CC., •concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: WELBORN, Commissioner. PER CURIAM.

text:
    ST. LOUIS COUNTY WATER COMPANY, a Missouri Corporation, Appellant, v. STATE HIGHWAY COMMISSION OF MISSOURI, Respondent.
    No. 50586.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 11, 1965.

      Gerald K. Presberg, St. Louis, for plaintiff-appellant.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent.
   WELBORN, Commissioner.

The St. Louis County Water Company, a public utility engaged in the business and in the area indicated by its name, sought judicial review of an order of the State Highway Commission directing the water company to relocate some of its facilities situated on state highway right-of-way. The circuit court affirmed the order of the commission. This appeal followed. We have jurisdiction because the cost to the water company of the relocation ordered would exceed $15,000.00.

This proceeding arose under Section 227.240, RSMo 1959, V.A.M.S. The portion of that section here pertinent reads, as follows:

“1. The location and removal of all telephone, telegraph and electric light and power transmission lines, poles, wires, and conduits and all pipe lines and tramways, erected or constructed, or hereafter to be erected or constructed by any corporation,, association or persons, within the right of way of any state highway, insofar as the public travel and traffic is concerned, and insofar as the same may interfere with the construction or maintenance of any such-highway, shall be under the control and', supervision of the state highway commission.

“2. The commission or some officer selected by the commission shall serve a written notice upon the person or corporation-owning or maintaining any such lines, poles,, wires, conduits, pipe lines, or tramways,, which notice shall contain a plan or chart, indicating the places on the right of way at which such lines, poles, wires, conduits,, pipe lines or tramways may be maintained. The notice shall also state the time when the work of hard surfacing said roads is. proposed to commence, and shall further state that a hearing shall be had upon the-proposed plan of location and matters incidental thereto, giving the place and date-of such hearing. Immediately after such hearing the said owner shall be given a notice of the findings and orders of the commission and shall be given a reasonable time thereafter to comply therewith; provided, however, that the effect of any change ordered by the commission shall not be to. remove all or any part of such lines, poles, wires, conduits, pipe lines or tramways from-, the right of way of the highway. The removal of the same shall be made at the-cost and expense of the owners thereof unless otherwise provided by said commission,, and in the event of the failure of such owners to remove the same at the time so. determined they may be removed by the state highway commission, or under its diTection, and the cost thereof collected from ■such owners, and such owners shall not he liable in any way to any person for the placing and maintaining of such lines, poles, wires, conduits, pipe lines and tramways at the places prescribed by the commission.”

Commission Project F-610(ll) was for the improvement of some 8200 feet of Lindbergh Boulevard (Route 66TR) in the vi■cinity of its intersection with Page Boulevard in St. Louis County. The plans called for elimination of a number of curves in Lindbergh, the construction of a cloverleaf interchange at the Page Boulevard ■intersection and an underpass under tracks ■of the Rock Island Railroad. The reconstructed highway was to consist of two 24-foot roadways, paved with concrete and separated by a medial strip, with stabilized shoulders.

In 1947, pursuant to a permit issued by the commission, the company had installed ■a 20-inch water main in the highway right-of-way for more than 6 miles along Lindbergh, which included the area involved in Project F-610(ll). The permit called for the installation of the main 8 feet west of the west edge of Lindbergh Boulevard. This main is the principal facility involved in the proceeding under review.

After conferring with water company representatives, the commission, on May 31, 1961, through its district engineer, issued an order approving plans for the location of the water company’s facilities in the improvement area. Of some 8200 feet of 20-inch line involved, some 2000 feet in locations not affected by the new construction were to remain in place. The company agreed to the relocation of some 2000 feet of the line situated in sites in which the grade of the existing roadway was to be changed, including the Page Boulevard and Rock Island underpasses. Some 4200 feet of the 20-inch line were to be abandoned and relocated, along with 580 feet ■of 8-inch line.

The order, pursuant to Section 227.240, supra, notified the company that a hearing would be held on the commission’s proposal involving the company’s facilities. A hearing was held at which evidence was presented by representatives of the highway department and of the company. Following the hearing, the commission issued the order presently involved, requiring the abandonment of some 2775 feet of 20-inch line in three separate locations and approximately 300 feet of 8-inch line.

The first location in which changes in the company’s facilities were ordered was in the vicinity of the intersection of Dor-sett' Road with Lindbergh. There the roadway was to be widened by the adding of new pavement on both sides of the existing pavement. The order called for the retirement of some 1275 feet of 20-inch main which would have been under the new pavement at distances, measured from the west edge of the pavement, of from 10 to 20 feet. It also called for the retirement of 300 feet of 8-inch main which would have been under the new pavement by a maximum of 20 feet and a minimum of 10 feet from its west edge.

The second and third locations were in areas where curves in the existing roadway were straightened. In both the second and third relocation sites, the 20-inch main would have crossed the new roadway beneath new pavement at oblique angles which would have placed some 550 feet of main under the roadway in the second relocation site. In that site some 650 feet of 20-inch main were to be retired, consisting of the 550 feet which would have been under the pavement and 100 feet which would have been in the shoulder of the roadway. In the third site, 450 feet of 20-inch main which would have been beneath the new paved roadway and some 400 feet of the main which would have been in the shoulder of the new roadway were ordered retired or removed.

The order submitted approved reloca-tions of the mains to be retired or removed. Generally, the relocations were near the edge of the right-of-way of the highway as improved. Where crossings of the new roadway were to he made to rejoin portions of the main left in use, the lines crossed the roadway at angles which made the portion of the line beneath the pavement approximately the same length as the width of the pavement at the point of crossing.

By its final order, the commission found that the highway improvement involved the construction of a hard surface highway; that facilities of the company ordered relocated would be either covered with hard surface pavement or incorporated in the shoulders of the roadway; that some of the facilities, if left in place, would cross under the new paved roadway “on a sharp skew angle, thereby creating a crossing of considerable length; that other parts of the facilities, if let in place, will be under the shoulder of the roadway or under the pavement to varying extents; and that the presence of a part of said facilities will interfere with the proper and economical construction and maintenance of said highway and will impede the lawful traffic thereon after reconstructed * *

The company sought judicial review of the final order under Civil Rule 100, V.A. M.R. (Ch. 536, RSMo 1959, V.A.M.S.). The circuit court considered the matter on the petition for review, the answer of the commission and the record of the hearing before the representatives of that body. The court affirmed the order of the commission and this appeal ensued.

The respondent has moved to dismiss the appeal on two grounds. The first is that the appellant’s brief does not comply with Supreme Court Rule 83.05, V.A. M.R., in that it fails to set out briefly and concisely the reasons why the action of the trial court, which it seeks to have reviewed, is erroneous. We find the appellant’s statement of its points relied upon sufficient. The second ground for dismissal of the appeal is that the appellant’s brief is addressed to the preliminary relocation ordered by the district engineer and not to the final order made by the commission. Appellant acknowledges that its original brief did describe the relocation ordered by the district engineer rather than the commission. This was obviously an inadvertence. The respondent’s brief correctly pointed out the relocations actually involved. See Supreme Court Rule 83.05 (d), V.A.M.R. The proper issues were presented and the motion to dismiss the appeal is overruled.

On this appeal, the company first contends that the relocation order is unsupported by competent and substantial evidence upon the whole record and is arbitrary, capricious and unreasonable. The company contends further that the order of the commission is in excess of its authority and not authorized by law because it was based not upon the evidence adduced at the hearing but upon a previously adopted policy of the commission. Inasmuch as we conclude that this second contention is dis-positive of this appeal, we turn to it.

At the hearing, the commission placed in evidence a pamphlet entitled “A POLICY ON LOCATION OF UTILITY FACILITIES ON STATE HIGHWAYS.” According to the pamphlet, the policy had been established by the Missouri State Highway Commission on October 14, 1958. The witness who identified the pamphlet stated that the provisions under portions of the policy statement dealing with “HIGH TYPE ROADS” applied in this case. The portions which he pointed out as being applicable were as follows:

“II. HIGPI TYPE ROADS.
“A. Existing Roadway Included in Final Improvement and Existing Utility Facilities on Present Right-of-way.
“1. Relocate all parallel surface installations and parallel underground installations carrying pressure to near the new right-of-way lines.
******
“3. All underground mainline pipes under pressure crossing the roadway shall be encased from shoulder to shoulder of roadway as a minimum.”

The statement of policy is prefaced as follows:

“The following policy is established for the location or relocation of utility facilities on the right-of-way of highways in the state highway system. Any location or relocation of utility facilities contrary to this policy is declared to be an interference with the construction or maintenance of state highways and their rights-of-way and is prohibited.”

The importance attached to the policy was indicated by the statement of the witness: “We don’t even consider who is to pay the removal cost in trying to work out the solution to relocate the (utility) facilities to comply with the Commission’s policy.”

In State ex rel. State Highway Commission v. Weinstein, Mo.Sup., 322 S.W.2d 778, the court en banc held that the determination, in a case such as this, of the necessity for the removal of water lines to a new location in order to prevent interference with the construction, maintenance or use of the highway may not, in view of the provisions of Section 227.240, supra, be determined as a matter of general policy. 322 S.W.2d 783. The matter must be determined, in the particular case, upon the plans, the evidence of the parties and the matters of which the commission might (Section 536.070, RSMo 1959, V.A.M.S.) properly take judicial notice. 322 S.W.2d 787.

Weinstein pointed out that an adjudicative hearing must be afforded, in accordance with Chapter 536, RSMo 1959, V.A.M.S. Section 536.090 requires the administrative agency before which such a hearing is held to make findings of fact and conclusions of law. “The findings of fact shall be stated separately from the conclusions of law and shall include a concise statement of the findings on which the agency bases its order.” Section 536.090. “Findings should be a recitation of the basic facts established by the evidence as found by the trier of the facts, from which may be inferred the ultimate facts in terms of the statutory criterion required as a basis for a particular order.” 2 Am.Jur.2d, Adm.Law, Section 456, page 270. As pointed out in Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 142(8) : “In any case, findings should be sufficient to show how the controlling issues have been decided.”

In this case, essentially the only basic fact set out in the commission’s order was that the mains, if left in place, would be under the shoulder of the roadway or under pavement to varying extents and that other portions of the mains would cross under the new paved roadway “on a sharp skew angle, thereby creating a crossing of considerable length.” This finding was based upon the plans and there is no controversy over the existence of the facts recited. From such basic finding, and no other insofar as appears from the order, the conclusion is drawn that the presence of a part of the facilities “will interfere with the proper and economical construction and maintenance of said highway and will impede the lawful traffic thereon after reconstructed * * *

Such is also the position taken in the statement of policy. Although the presumption exists that the commission acted on the basis of the evidence adduced at the hearing (2 Am.Jur.2d, Adm.Law, Section 453, page 265), the fact is that, in this case, the commission made no basic findings on the evidence presented at the hearing other than its findings regarding the location of the mains upon the completion of the project.

We deem it unnecessary here to set out in detail the controverted evidence presented at the hearing and concerning which no basic findings were made. However, we do note that the commission, on the issue of interference with construction, presented testimony designed to show that, in a project such as this, in the preparation of the sub-base for the pavement and its base, unsatisfactory soil conditions are frequently encountered, requiring the removal of the existing soil to a depth of “several feet.” The witness testified that the existence of such conditions is not known in advance and that he could not say either that they would or would not be encountered on this project. The witness further suggested the possibility of damage to the mains if left in place by heavy equipment passing over them in the construction process. On the other hand, the company presented evidence of two recent commission projects involving improvement of Lindbergh Boulevard, one of which was in the immediate vicinity of the present project. The company’s evidence showed that the improvements in those two instances, both of which involved the laying of new pavement over existing mains of the company which were left in place, were completed without interference by the mains which were left in place.

Likewise, witnesses for the commission testified concerning the possibility of leaks or breaks in the mains if left in place, which might present maintenance problems and interfere with the use of the highway. A company witness, on the other hand, testified that leaks could not occur because the company would install bell joint clamps at every joint in the mains, which would prevent leaks during the expected life of the mains. He also testified concerning the records of the frequency of breaks in the company’s mains of the types here involved in an effort to show that the probability of a break in the mains ordered to be relocated was quite remote.

We do not deem it our proper function to decide, in this case, whether or not the commission could, on the basis of this and other evidence presented, have found basic facts to support its ultimate finding. “The Commission is the fact-finding body, and the Court examines the evidence not to make findings for the Commission but to ascertain whether its findings are properly supported.” So spoke Chief Justice Hughes in Florida v. United States, 282 U.S. 194, 51 S.ct. 119, 125, 75 L.Ed. 291.

We must take the case as the commission found it, not as it might have found it. 2 Am.Jur.2d, Adm.Law, Section 756, page 656.

We have in this case the sole basic finding that the mains would be under the pavement or in the shoulder of the roadway upon completion of the project. The commission did not attempt to show that the normal construction activity would require excavation of the new roadway to a depth greater than that at which the mains were laid. They pointed out no changes of grade in the relocation areas which would necessitate such work. In fact, the commission witness who brought up the possibility of encountering the mains in the construction process did not know the depth at which they were laid. The commission’s testimony on breaks and leaks related to such occurrences elsewhere, one of which was in the company’s lines. The commission offered no evidence to show that the load of the traffic on the roadway would affect the mains beneath it. The only evidence on this score was by the company and showed that the mains, beneath the cover of the pavement, its base and sub-base, were designed to withstand loads which traffic might impose upon them.

Support for the conclusion that the mere presence of the mains would constitute interference with the construction, maintenance and use of the new highway is found only in the commission’s declaration of policy to that effect. We, therefore, must conclude that, the commission having made no basic findings from the evidence adduced at the hearing, the commission’s ultimate finding was based upon the previously established policy, and not upon the evidence adduced at the hearing. As pointed out in Weinstein, supra, such is not a proper basis for determination of the matter.

Inasmuch as the commission made no findings pertaining to the issues properly determinative of this case, the matter should be remanded to the commission for such determination.

Therefore, the judgment of the circuit court affirming the commission’s order is reversed and the cause remanded to the circuit court with directions to remand to the commission for further proceedings in accordance with this opinion.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C, is adopted as the opinion of the Court.

All of the Judges concur, except HENLEY, J., not sitting.

ON MOTION FOR REHEARING OR FOR TRANSFER TO COURT EN BANC

PER CURIAM.

By its motion for rehearing or in the alternative for transfer to the Court En Banc, the Commission argues that the findings which it made in this case were sufficient. The motion asserts: “The only ultimate fact which the Commission was required to find was whether or not the water mains in question would interfere with the construction, maintenance or use of the highway.” Insofar as the finding of ultimate fact is concerned, we can agree with this contention. We do not agree, however, that such ultimate finding, couched in the statutory language, is the only finding the Commission was required to make. The Commission must also have found the basic facts from which such ultimate fact might be inferred. “Courts do not want agencies to include detailed summaries of testimony in their findings; they want what they call the basic facts. * * * The basic findings are those on which the ultimate finding rests; the basic findings are more detailed than the ultimate finding but less detailed than a summary of the evidence.” 2 Davis, Administrative Law Treatise, Section 16.06, pages 450, 451. Only when the administrative agency makes such basic findings can a court properly perform its limited function of review of the administrative action. To repeat Judge Hyde’s statement in Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W. 2d 136, 142, “In any case, finding should be sufficient to show how the controlling issues have been decided.”

Here the basic facts found by the Commission afford a foundation for the ultimate fact only by reason of the Commission’s policy. Our view that the Commission’s finding was essentially based upon such policy is reinforced by the Commission’s motion for rehearing.

In arguing that the opinion misconstrued State ex rel. Highway Commission v. Weinstein, Mo.Sup., 322 S.W.2d 778, the Commission states: “The Weinstein case did not hold that after a hearing was held the Commission could not determine from the evidence presented whether it should or should not apply its policy.” Weinstein did hold that a matter such as this must be determined in the particular case on the plans, the evidence of the parties and the matters of which the Commission might properly take judicial notice. Application of the Commission’s policy to determine the matter is inconsistent with such requirement because the policy declares: “Any location or relocation of utility facilities contrary to this policy is declared to be an interference with the construction or maintenance of state highways and their rights-of-way and is prohibited.”

The object of the hearing is not, as the Commission argues, to determine whether or not the policy should be applied. The object of the hearing is to determine whether or not the evidence shows that in the particular project the utility facilities would interfere with the construction, maintenance or use of the highway.

The motion for rehearing or in the alternative for transfer to the Court En Banc is overruled.