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    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. William KOBERNA et al., Defendants, Shirley Rawlinson, Appellant.
    No. 50981.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      Robert L. Hyder, Jefferson City, Samuel C. Ebling, Kirkwood, for plaintiff-respondent.
    Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Paul Brackman, R. W Copeland, Clayton, for defendant-appellant.
   STOCKARD, Commissioner.

In this action for condemnation of land for highway purposes the jury award of just compensation to Shirley Rawlinson, the owner of record, was $22,000, and she has appealed. The difference between the award and that to which appellant claims she is entitled under her evidence exceeds $15,000. Appellate jurisdiction is in this court.

The land in question consisted of a seven-acre tract located in the southern part of St. Louis County near the intersection of Lindbergh Boulevard and Lemay Ferry Road. The portion taken for highway purposes consisted of 4.56 acres, leaving 2.44 acres which is landlocked except for access to a platted, but not constructed, road. The date of taking was stipulated to have been November 16, 1961, and it was further stipulated that Shirley Rawlinson, the record owner and named defendant, was in fact a “straw party” for the actual owner Walter Scott, but he was never substituted as a party defendant in the action.

Appellant’s first two points are that the trial court erred in giving Instruction 5 and in refusing her requested Instruction A. To rule these points we must first set out the language of Instruction 4, not challenged by appellant, which was as follows:

“You are instructed that in determining the just compensation to which the Defendant is entitled you shall first determine the fair market value of all of Defendant’s land immediately prior to November 16, 1961, and you shall then determine the fair market value of the Defendant’s land remaining after November 16, 1961, and the difference is the just compensation to which the Defendant is entitled.”

Instruction 5, which is challenged, defines the term “fair market value.” Although this case was tried before January 1, 1965, the effective date for the mandatory use of the Missouri Approved Jury Instructions (M.A.I.), Instruction 5 is identical, except for one word, to M.A.I. No. 15.-01, and was as follows:

“The term ‘fair market value’ means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so.
“In determining fair market value you should take into consideration all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the immediate future.”

In M.A.I. No. 15.01 the next to the last word is “near” instead of “immediate.” At the time Instruction 5 was given, the word “immediate” appeared in the then proposed M.A.I. No. 15.01, but was later changed to “near” prior to January 1, 1965. Appellant makes no point concerning the use of “immediate” instead of “near.”

Related to the alleged error in giving Instruction 5 is the alleged error in refusing appellant’s requested Instruction A, and although somewhat lengthy, we shall set it out, and for future reference we have added brackets around certain parts of it.

“The Court instructs the jury that plaintiff, the State Highway Commission of the State of Missouri, is seeking, by this suit to condemn for public use as a right-of-way a total of 4.56 acres of land described in the evidence and bounded on the south by Forder Road, on the west by Union Road, on the north by the remaining property of Shirley Rawlinson and on the east by the property of May Stores Shopping Center, Inc. and the property formerly owned by Frank C. Wallis, being the property of Shirley Rowlin-son. Your verdict therefore must be for Shirley Rowlinson. In assessing the just compensation due her you must allow her the amount which you find and believe from the evidence to be the fair market value as of November 16, 1961 of such 4.56 acres.
[“The term ‘fair market value’ means the price which her property would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but is not compelled to do so.] Fair market value does not mean the price it would bring where the party selling is forced to sell, or where it is sold for other considerations in addition to the money paid, but rather what the land would fairly bring in the hands of a prudent seller at liberty to fix the time at which she would sell and the conditions under which she would sell. The question is, if the defendant Shirley Rowlinson wanted to sell her property, what could have been obtained for it upon the market from parties who wanted to buy it on November 16, 1961, and would give her its full value for its highest and best use?
[“In determining its fair market value, the jury should take into consideration] its location, the uses for which it is suitable at such location, including [all the uses to which it may best be applied or for which it is best adapted,] having regard not alone for the existing business wants of the community, but also such uses as may [be reasonably expected in the immediate future,] and comparing with the sales and prices most recently obtained at or about the time of the taking for comparable lands with the same facilities in the area. In determining the uses and purposes for which Shirley Rowlinson’s land were suitable or adaptable, the jury is not confined to the use made of the land at the time it was taken.”

Appellant’s contentions as to Instruction 5 are that (a) it “was not a complete statement of the law and omitted many necessary elements about which defendant was entitled to have the jury instructed;” (b) it failed to instruct the jury to consider the comparable sales of land in the immediate vicinity and near the time of the taking; (c) it failed to instruct the jury to determine the probable best use of said property in the reasonably foreseeable future; and (d) it “was not a proper definition of ‘fair market value’ under the evidence adduced in said cause.” Appellant’s contentions as to the refusal of Instruction A are that (a) it was “a proper instruction which had been previously approved by the Supreme Court;” (b) it “properly put before the jury the proper elements to consider relative to uses to which the property would be best adapted considering the existing business wants of the community and such uses as might be reasonably expected in the immediate future;” (c) it properly instructed the jury that it was not confined to the use being made at 'the time it was taken; and (d) it properly instructed the jury to take into consideration the most recent comparable sales of land in the immediate area.

Prior to the mandatory use of M.A.I. the use of an instruction in the language of Instruction A has been held not to be improper. City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; State of Missouri ex rel. the Board of Regents for the Central Missouri State College v. Moriarty, Mo.App., 361 S.W.2d 133. We are of the opinion that it would not have been reversible error for the trial court to have given Instruction A in this case. The question, however, is whether it was prej-udicially erroneous for the trial court to refuse to give it and to give Instruction 5.

It is interesting to note that the result of appellant’s contention is that she is entitled to a new trial because Instruction 5 was given instead of Instruction A, but on a new trial, if granted, the trial court would then be required not to give Instruction A and to give M.A.I. 15.01, which is identical to Instruction 5 except for one word about which no complaint is now made.

We shall examine first Instruction A. In the first paragraph it improperly told the jury to determine the fair market value of the 4.56 acres actually taken. This was a “partial taking” case, and the proper procedure was for the jury to use the “before and after” rule as set out in Instruction 4. Other than advising the jury of the date on which the fair market value should be determined, and Instruction 4 did this, the remainder of the first paragraph of Instruction A was unnecessary, and in fact bordered on a comment on the evidence and on being argumentative.

The first sentence of the second paragraph of Instruction A, which we have bracketed, is almost identical (the difference not being material) to the first sentence of Instruction 5, and it advised the jury the meaning ofMhe term “fair market value.” There then follows in Instruction A a discussion of what the term does not mean, argumentative in nature, and then the instruction poses a question to the jury rather than declaring the law. In addition, in this latter part of the second paragraph reference is made to “her property,” which could mean the seven-acre tract or perhaps the 4.56 acres referred to in the first paragraph, but in either event it ignored the “before and after” test.

In the third paragraph of Instruction A, the portions which we have bracketed contain almost the identical language (the difference being immaterial) of the second paragraph of Instruction 5. The remaining portions of the third paragraph constitute an explanation of what was meant by the bracketed language, and is in nature argumentative. Appellant was not prejudiced by the failure of the trial court to give Instruction A in the language submitted.

We shall now examine the contentions as to Instruction 5. Appellant contends that it (a) did not instruct the jury to consider comparable sales of land in the immediate vicinity and near the time of the taking, and (b) failed to instruct the jury to determine the best probable use of said property in the reasonably foreseeable future. Reliance is placed primarily on the Vasquez case, but as to the inclusion of these two items in the instructions in that case, this court said that they contained “matter that is argumentative, in a sense” and that they recited “certain evidential elements which would be better left to argument.” It was then added that “we are not willing to reverse the judgment for this reason, having in mind previously approved instructions similar in form and content.” This court has been reluctant to reverse a case because of the inclusion of argumentative material of this nature in a damage instruction in a condemnation case even though critical of the practice, State ex rel. State Highway Commission v. Volz Concrete Materials Company, Mo., 330 S.W.2d 870, 875, but this does not mean that a trial judge who departs from the customary but criticized practice has committed prejudicial error. Instruction 5, as worded, specifically authorizes and directs the jury to determine the fair market value, and in making that determination to consider all the uses to which the property may best be applied or for which it is adapted under existing conditions and those reasonably expected in the immediate future. Such matters as set out above under (a) and (b) are proper for oral argument to the jury by counsel, but they should not be argued to the jury by way of court given instructions.

Although not specifically mentioned in the point, it appears from the argument that the principal obj ection to Instruction 5 is that it did not specifically tell the jury that it could consider the probability of rezoning. We note that appellant asserts that Instruction A submitted “all of the issues which were proper for submission to this jury,” but the reasonable probability of rezoning was not therein specifically mentioned. It did contain language that in determining fair market value the jury should consider “the uses for which it is suitable at such location * * * [and] also such uses as may reasonably be expected in the immediate future,” and that in determining the uses and purposes for which the land was adaptable “the jury is not confined to the use made of the land at the time it was taken.” This language, appellant asserts, authorized the jury to take into consideration a reasonable probability of rezoning. However, in Instruction 5 the jury was told that in determining fair market value it should consider “the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the immediate future.” We are of the opinion that the jury was authorized to consider the probability of rezoning under either instruction.

We conclude that although Instruction 5 was much shorter than instructions on this subject in previously considered cases, it contained all the factors which appellant was entitled to have specifically mentioned in an instruction. Therefore, no prejudicial error resulted from the giving of this instruction.

Appellant asserts prejudicial error resulted in permitting certain testimony and in refusing other testimony. Certain background information is essential. Lindbergh Boulevard, a major trafficway at this locality, runs generally east and west. Parallel to it, and to the south is Forder Lane. Lemay Ferry Road runs generally north and south and intersects Lindbergh Boulevard. Parallel to it, or substantially so, and west is a platted but unimproved street referred to as Union Road. These four streets form a rectangle slightly longer north and south. Appellant’s seven-acre tract lies in the southwest corner of the rectangle. Walter Scott acquired the property, placing title in the name of a “straw-party,” in December 1960, ten and one-half months before the date of taking for a total consideration of $22,000. Mr. Scott, a real estate broker, testified that in his opinion the value of the seven acres of land on November 16, 1961, the date of taking, was $300,000, and that after the taking the remaining 2.44 acres had no value whatever. Prior to the date of his purchase of the seven-acre tract, Mr. Scott knew of a proposed development of a shopping center in the northern portion of the rectangle by the May Department Stores which operates Famous-Barr Company, and by which name we shall subsequently refer to the company.

Appellant asserts that the trial court erroneously permitted the testimony of Joseph W. Cloud concerning the purchase of land by him in 1955 because (a) it “was not the most recent sale of that tract of land prior to the date of taking and * * * said transaction was too remote to be any evidence of the land value at the time of taking,” and (b) all of the expert witnesses testified that there had been a substantial increase in the value of the land from 1955 to 1961.

Joseph W. Cloud was a witness called by appellant. On direct examination he testified that on May 17, 1961 he sold 4.4 acres of land zoned for commercial use and fronting on Lemay Ferry Road for $135,000. On cross-examination he testified that appellant’s property was not comparable to his property because of its location. It was further developed on cross-examination that Cloud had owned 13 acres of land directly across Forder Road from appellant’s property. It appears that he conveyed this property to the State of Missouri for the same highway as that for which appellant’s property was condemned. No attempt was made to have Cloud testify as to the price received from the State. However, over the objection of appellant he was permitted to testify that he purchased the property on May 12, 1955 for a total consideration of $14,500.

We are not aware of any rule that only evidence of the “most recent sale” of land is admissible, and appellant has cited no case so holding. When evidence of a sale is otherwise competent, it is immaterial whether it is the most recent sale.

The general rule is that evidence of the sale price of property similarly located to that involved, and made in the neighborhood reasonably near the time of taking, is admissible to aid the triers of fact in determining the compensation to which the owner is entitled for the taking of the property. In re Armory Site in Kansas City, Mo., 282 S.W.2d 464, 473; Kansas City & Grandview Railway Co. v. Haake, 331 Mo. 429, S3 S.W.2d 891, 84 A.L.R. 1477. “The importance of evidence of the sale price of other land depends upon the degree of nearness of the sale in point of time and the proximity of the property, of the similarity in location, and in the use to which the property may be adaptable.” In re Armory Site in Kansas City, supra. Unless the distance in location, or the difference in time of sale from the time of taking, or the lack of similarity be so great as to make the evidence, as a matter of law, not material and relevant, such differences go to the weight of the evidence rather than to its admissibility. United States v. Becktold Co., 8 Cir., 129 F.2d 473, 479 ; 30 C.J.S. Eminent Domain § 430. As stated in the Armory Site case, “In determining the admissibility of evidence of this nature there necessarily must be considerable discretion on the part of the trial judge.” Appellant offered evidence by this witness of the sale price of 4.4 acres of land when the sale was near in time to the taking of appellant’s land, but the land was not entirely comparable because of location. The condemnor then offered evidence by the same witness of the sale of land substantially comparable on the basis of location, but the sale was removed in point of time from the taking by about five years. Each party had a full opportunity to show why the evidence had a limited bearing on the issue of fair market value. See 30 C.J.S. Eminent Domain § 430, p. 566. Under these circumstances we cannot hold that the trial court abused its discretion in admitting the testimony.

Appellant also contends that the trial court erred in refusing to strike the testimony of witnesses Godwin, Bentley and Schneider, all expert witnesses called by respondent, because (a) they “failed to state the factors and basis on which they based their appraisals,” and (b) they did not testify that they had based their opinion on any comparable sales.

Respondent is correct when it asserts that appellant made no motion to strike the testimony of witness Schneider. We need not consider appellant’s contention now made concerning his testimony.

Mr. Godwin and Mr. Bentley were realtors and real estate appraisers who unquestionably were qualified as expert witnesses on value of real estate in the vicinity of appellant’s land. Mr. Godwin testified that he examined appellant’s property in December of 1959 and again in 1961, and that in his opinion the fair market value immediately prior to November 16, 1961, was $21,000. He was then asked to relate “what factors you considered and how you arrived at the figure of $21,000,” He stated that the “basis of the value was three thousand dollars an acre,” which was an increase over an estimate he had made in 1959, and that “probably the most important [factor] was * * * that the Scott property actually sold for twenty-one or twenty-two thousand dollars;” that there was now one ownership instead of two; that it was a “larger tract and more readily developable;” that he considered the portion of the seven-acre tract not taken to be of no value because it was landlocked; that appellant’s land was zoned residential and that he had acquainted himself with the zoning of other tracts in the neighborhood and the possibility of rezoning appellant’s land; and that he considered the possible use of appellant’s land “by the shopping center.” On cross-examination he stated that in his opinion the property to the west and south of the shopping center (which included appellant’s property) did not change in value by reason of the shopping center as much as the property on Lemay Ferry Road and Lindbergh Boulevard because it still has “a ten-foot wide road, they don’t have any water, they still don’t have any sewers, they don’t have any gas, they don’t have the utilities and the access that the property really needs to be developed and to accept an increase in value.” While he stated that he arrived at his valuation “by comparable sales,” he also stated he did not consider the sale of those tracts testified to by appellant’s witnesses because they were bought for “special reasons” and “those reasons” would exclude the use of appellant’s land.

Mr. Bentley testified that he had examined appellant’s property, and that in his opinion the fair market value at the time of taking was $16,000, and that the land not taken had a.value after the taking of $1,250. He arrived at this latter figure on the basis that the remaining parcel was landlocked and would have a minimal value for resale. He was then asked to relate “how you arrived at the $16,000.” He stated that the “first thing” he did was to determine “the highest and best use” which in his opinion was residential. He further stated that he was familiar with the rezoning for commercial use of the land acquired by Famous-Barr Company, but that in his opinion that would have no effect on appellant’s property because it did not have the requisite attributes for commercial use in that it was remote from any commercial road.

Appellant cross-examined both of these witnesses at length, but did not develop that any improper items of valuation had been considered by either. Appellant then moved to strike the “entire testimony” of Mr. Godwin because “he testified that his valuation is based on the study of comparable sales, and that during direct examination, he testified as to no facts or figures of such comparable sales, * * * [and] he testified on cross-examination that he did not rely on the sales that were in evidence * * Appellant moved to strike the testimony of Mr. Bentley because he did not show “what factors he relied upon in making his appraisal.”

As an exception to the general rule that a witness may not express an opinion, an expert witness may do so when qualified as such and when the subject matter is not of such common knowledge as to invade the province of the jury. However, the expert witness must base his opinion on facts established by competent evidence. Schears v. Missouri Pacific Railroad Company, Mo., 355 S.W.2d 314; Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541. The question of whether such opinion is based on and supported by sufficient facts in evidence to sustain the same is a question of law. Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 849; Atcheson v. Braniff International Airways, Mo., 327 S.W.2d 112, 117. The requirement that the opinion be supported on a factual basis may be met either by the witness premising his conclusion on facts within his personal knowledge or observation, or by premising the conclusion on a specified state of facts, assumed to be true, as to which some evidence has been received. 32 C.J.S. Evidence §§ 549 and 550. In this case expert witnesses Godwin and Bentley based their conclusions on value from a personal observation and examination of the land, the description of which was in evidence, its location, its zoning and probability of rezoning, its probable uses, and in the case of Godwin, on the purchase price paid by Scott. It was not necessary as contended by appellant, that they base their estimates on “comparable sales” if there was other factual basis, which there was, and their failure to use “comparable sales” or other factors believed proper by appellant was a matter affecting only the weight to be given their testimony by the jury. We find no merit to this contention by appellant.

Appellant’s first contention concerning the exclusion of evidence is that the court erred in refusing “to admit into evidence an offer of $35,000” made by Famous-Barr Company for the seven-acre tract shortly before the date of taking.

Appellant called as a witness Gregory j. Nooney, Jr., a realtor who testified that during the latter part of 1960 and in 1961 he acted as agent for Famous-Barr Company to acquire property in the vicinity of Lemay Ferry Road and Lindbergh Boulevard for a shopping center. Appellant then offered in evidence copies of a “sales contract” describing the seven-acre tract and listing a purchase price of $35,000, and also a copy of a check in the amount of $2,100 identified as a proposed earnest payment. Each had been signed by Mr. Nooney. Although these documents contained the names of the members of the Bone family, and not that of Walter Scott, and were dated before title was placed in the name of Walter Scott’s strawparty, appellant offered to prove by them that they represented an offer to Walter Scott by Mr. Nooney on behalf of Famous-Barr Company to purchase the seven-acre tract for $35,000. Mr. Nooney was permitted to testify that he made an offer to Walter Scott, and that he knew the amount of the offer, but he was not permitted to state the amount.

As a general rule proof of an unaccepted offer to purchase real property is not admissible as evidence of value, at least when not testified to by the offerer. School District of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860; State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57; City of St. Louis v. Gerhart Realty Co., 328 Mo. 103, 40 S.W.2d 661; Missouri Public Service Company v. Hunt, Mo.App., 274 S.W.2d 27. This is by far the majority rule. See Nichols on Eminent Domain § 12.311 [2], and the numerous cases cited in the annotation at 7 A.L.R.2d 781. Appellant asserts that an exception to the general rule should be made in this case because in School District of Clayton v. Kelsey, supra, this court indicated that the reason for the rule is that the door would be opened to offers made in bad faith, and in this case there obviously existed no collusion or fraud.

The possibility of opening the door for proof of fraudulent offers to purchase may be a sufficient reason for the general rule, but it has more compelling reasons. An offer to purchase “is, at most, a species of indirect evidence of the person making such offer as to the value of the land.” Nichols on Eminent Domain § 12.311 [2], Therefore, an offer to purchase is an expression of opinion by the one making the offer of the value of the land for the purpose it was wanted. When the fact that such an offer was made is offered in evidence other than by the testimony of the offerer it constitutes a hearsay expression of value with no opportunity to cross-examine the offerer, the value expressed in the offer may not be the fair market value the jury is to determine, the offerer may not be qualified to express an opinion on the fair market value, and the offerer may have wanted the land for a particular purpose disconnected with its value. See State Highway Commission v. Triangle Development Co., Wyo., 369 P.2d 864, and Brock v. Harlan County, 297 Ky. 113, 179 S.W.2d 202. In this case, however, Mr. Nooney was the one who made the offer to purchase the land, he qualified as an expert witness on land values generally, and he was present on the witness stand subject to cross-examination as to the factors he took into consideration in arriving at the value expressed in the offer. Whether an expert witness, who has expressed his opinion as to the fair market value of land, may then fortify that opinion by testifying that he made an offer to purchase for that amount is an issue we are not called upon to decide in this case. Mr. Nooney testified that on behalf of Famous-Barr Company he had made an offer to Mr. Scott to purchase the land and that he had “an opinion of what we were willing to pay for it, what it was worth to us,” hut he declined to express an opinion as to the fair market value of the land because, as he said, he had “no opinion of value other than to anybody but our client who we were assembling the property for,” and because he did not “know enough about that property except as it relates to the whole to give you a qualified answer on that.” When Mr. Nooney was not qualified to express from the witness stand an opinion as to the fair market value of the land, the trial court did not err in refusing to admit into evidence his extra-judicial expression of opinion of value in the form of an offer to purchase.

Appellant next contends that the trial court erred in refusing to admit into evidence three exhibits which she contends constituted evidence of the probability of rezoning her land in the reasonably foreseeable future. She cites State ex. rel. State Highway Commission v. Williams, Mo., 289 S.W.2d 64 and City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839. These two cases hold that such evidence is proper, and the trial court did permit other evidence tending to show such probability. The issue here is whether the specific exhibits offered were competent evidence and relevant to that issue.

Exhibit 2 was a plat prepared by the St. Louis County Planning Commission for the Land Use Plan, entitled Study Area 17, Land Use Plan Diagram. The legend shows various uses for the land, but the area where appellant’s land is located is left blank, except for some circles designating a proposed expressway. The legend designates the area of appellant’s land as “Rural (land not needed for urban uses).” Mr. Alfred Kahn, Assistant Planning Director of St. Louis County, stated that the location of the circles showing the location of the highway was “an approximation” but that it subsequently turned out to be substantially correct, and that the area of appellant’s land “does not bear a specific designation.” Mr. Kahn then testified “from his personal knowledge” that “to the northeast of the intersection of the circumferential and Interstate 55 * * * the recommended land use was regional business, regional commercial.” This would include the portion of the seven-acre tract not taken for highway purposes. Subsequently Mr. Kahn stated that the “Land Use Plan makes recommendations of a general nature as to how an area should be developed, and does not say what specific zoning should be on the property.” When Exhibit 2 was offered in evidence respondent objected because it was not definite enough to be of any probative value. The trial court sustained the objection and commented that it would not add anything to the oral testimony of the witness.

Exhibit 2 is indefinite as to whether it includes any of appellant’s land in the area proposed to be developed as regional commercial. Whether it did depended upon the “personal knowledge” of Mr. Kahn, and testimony of his personal knowledge was admitted. We see no reason why the exhibit should not have been admitted for what “it is worth,” as it is sometimes said. But, the overall appearance is that the exhibit would have been detrimental to appellant. However, there is another matter for consideration. Such proposals for the development of the land by the Planning Commission obviously were based on the location of the proposed highway, and ordinarily a landowner is not entitled to show the value of his land resulting from the presence of the project to be constructed thereon for public use. While, we doubt that the admission in evidence would not have been improper, we do not see how appellant was prejudiced by the court’s refusal to admit it. As the trial court said, it did not add anything.

In rebuttal appellant called as a witness Kenneth Lange, Zoning Administrator of the St. Louis County Planning Commission. He identified two tracts of land lying west of Union Road which were northerly of appellant’s land and west of the Famous-Barr Company shopping center. As to each tract he testified without objection that an application for rezoning was filed, and that the Planning Commission had on February 19 and July 23, 1963 recommended a change • in the zoning from “C” single family district to “I” business district. He further stated that the County Council, as to each tract, had passed an ordinance rezoning the property as recommended by the Planning Commission. He was then asked to relate the action the Planning Commission takes when it is making its recommendation to the County Council. After some discussion and in an offer of proof appellant offered in evidence Exhibits 11 and 13 which were refused by the trial court. These exhibits were copies of letters from the Planning Commission to the County Council recommending the change in the zoning of the two parcels of land. Appellant asserted that these letters were part of the business records of the Planning Commission, and she contended that she was entitled to show more than just the approval of the proposed changes, but could show the “reasons for having made its recommendations.” Respondent objected because the reasons constituted hearsay.

“Although the purpose of The Uniform Business Records as Evidence Law [§§ 490.660-490.690, RSMo 1959, V.A.M.S.] is to enlarge the operation of the common law rule providing for the admission of business records as an exception to the hearsay rule, the Law does not make relevant that which is not otherwise relevant, nor make all business and professional records competent evidence regardless of by whom, in what manner, or for what purpose they were complied or offered, and when the business record is not of the character comprehended by the Uniform Law, it is relegated to the status of hearsay and as such is not admissible in evidence.” Kitchen v. Wilson, Mo., 335 S.W.2d 38, 43. The fact that the two properties were rezoned was relevant to the issue of whether there was a reasonable probability of a change in the zoning of appellant’s property, and the fact that the Planning Commission recommended the change in zoning was also relevant as one of the essential steps in the rezoning process. However, the opinions or reasons of the commission or its conclusions were not relevant to the pending issue, and the Uniform Act did not make them admissible in evidence. See Mo.Bar. CLE, Sources of Proof, Chapter 4; Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666-667, 55 A.L.R. 2d 1022; Terrell v. Missouri-Kansas-Texas Railroad Company, Mo., 327 S.W.2d 230. Portions of the letters were admissible, but appellant’s offer was that they be admitted in their entirety. The trial court did not err in refusing to do so.

Without setting it out, appellant objects to Instruction 3 because “by inserting the word ‘damages’ therein, instead of ‘just compensation,’ said instruction misled the jury to believing that they could not find for the defendant for more than his purchase price unless they found that he had been damaged thereby.” We are concerned only with the first paragraph of the instruction which was as follows: “The Court instructs you that the burden of proof is on the Defendant, to establish by the preponderance or greater weight of the credible evidence the damages by reason of the Plaintiff’s appropriation as described in the evidence.” Appellant relies on KAMO Electric Cooperative, Inc. v. Baker, 365 Mo. 814, 287 S.W.2d 858. That case pertained to condemnation to obtain a right of way easement for an electric power line. An instruction had improperly injected the issue of damages for future use of the right of way, and in another instruction the jury was told that it should assess the “just compensation and damages.” It was held that the terms “just compensation” and “damages” in condemnation cases “are used interchangeably and in a case of partial taking * * * each term when used separately, refers to what the landowner is entitled to receive by reason of the reduction in the fair market value of the whole tract as the result of the appropriation of a part.” It was then held that by the use in that case of the terms in the same instruction in the conjunctive the jury was told in effect that it should award “just compensation” for the appropriation and also award “damages” for those subsequent uses by the condemnor. In this case the terms were not used in the conjunctive, there was no issue concerning damages resulting from future uses, and the term “damages” was expressly limited to those resulting from “plaintiff’s appropriation.” We note as a matter of interest that in Instruction B, requested by appellant but refused by the trial court, appellant asked that the jury be instructed that “In assessing damages sustained by the defendant by the taking of her land, * * *.” We mention this to show that appellant was not confused by the use of the term “damages,” and we do not see how the jury possibly could have been.

The remaining contention is that the trial court erred in overruling appellant’s motion for new trial because “the verdict of the jury was grossly inadequate and was against the greater weight of the evidence” in that the verdict was the result of “passion and prejudice” against appellant and is “so unconscionable” as to deny appellant just compensation for the taking of her property.

In support of the above contention, appellant argues that the jury was improperly instructed, but we have determined that it was not, and she also asserts that the jury was “biased and prejudiced against defendant in this case, at least the nominal defendant, Mr. Walter Scott.” Appellant then reviews the evidence, and we shall comment briefly on that review. She points out that a public announcement of the intention of Famous-Barr Company to build a shopping center was made in March 1961, that the date of taking of her property was November 16, 1961, and that all witnesses including plaintiff’s expert witnesses testified that the proposed shopping center would have a “meritorious effect” on property values. We interpose here that plaintiff’s witnesses did recognize the effect of the shopping center on property values, but they testified that in their opinion appellant’s property would not be affected to any substantial degree because of its location and other physical features. We also mention that the evidence also shows that Walter Scott knew of the proposed shopping center at the time he bought the seven-acre tract which was prior to the public announcement, and that, he, as an experienced realtor knowing of the “meritorious effect” of the shopping center on property values, paid $22,000 for it, which was the amount the jury awarded him for the taking of 4.56 acres. Appellant next argues that the $22,-000 award was only 63% of an offer he received from Famous-Barr Company. However, we previously have held that the amount of this offer was properly not permitted in evidence, and for that reason it cannot now be used by appellant in support of her contention that the award was inadequate. Appellant also argues that in view of the sales of other property in the area and the amount of the jury award, the jury “must have failed to understand its right to assess a valuation on this property for commercial usages,” and she argues that the evidence concerning what respondent contended was a comparable sale should have been excluded. However, no point appears in appellant’s brief concerning that evidence, and the jury was entitled to take it into consideration just as it was entitled to consider the evidence concerning what appellant contended were comparable sales. We cannot assume that the jury failed to understand what it was entitled to take into consideration, and strictly speaking, it was not authorized to determine its valuation “for commercial usages.” The property at the time of taking was zoned residential. The jury was to make its determination under the existing restrictions, with consideration being given to the impact upon the fair market value of the likelihood of the zoning change. Union Electric Company v. Saale, Mo., 377 S.W.2d 427, 429.

Appellant also asserts “as to bias and prejudice of this jury against the defendant” that plaintiff elicited from Walter Scott “that he had made a profit of approximately $30,000 on property known as the Mueller tract.” On direct examination Mr. Scott testified that on December 29, 1960 he sold a nearby tract of land to Famous-Barr Company for $80,000. This was shown on the theory that it was a comparable sale. On cross-examination, he testified that on the same day he sold the property to Famous-Barr Company he had purchased it for a total sum of $50,000. Apel-lant now says that the testimony of his purchase “was not a. comparable in that it it was not the last sale of the property prior to the day of the taking.” No objection was made to the testimony on that ground, it is not assigned as error in a point in the brief, and we know of no such exclusionary rule. Evidence properly before a jury cannot form the basis of establishing bias or prejudice of the jury.

There was disparity between the estimates of'the expert witnesses, but that is not a justifiable basis for an appellate court to disturb the verdict in a condemnation case. Missouri Public Service Company v. Hunt, Mo.App., 274 S.W.2d 27, 31. There was substantial evidence from plaintiff’s expert witnesses that the total of appellant’s damages resulting from the appropriation was less than the award. In addition, the testimony of Walter Scott that he paid $22,000 for the seven acres at a time he knew that Famous-Barr Company was going to build a shopping center, and eleven months before the date of taking, was evidence supporting the award of $22,000 for the appropriation of approximately two-thirds of the tract of land. The trial court is vested with wide discretion in ordering a new trial on the ground of either excessiveness or inadequacy of the verdict, and its action will not be disturbed if it is reasonably supported by substantial evidence. See Combs v. Combs, Mo., 295 S.W.2d 78, and the cases there cited. We conclude that the verdict in this case was supported by substantial evidence, that appellant has not demonstrated bias or prejudice on the part of the jury, and that there is no basis for this court to rule that the trial court abused its discretion in'the matter.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    Clarence James AIKEN, by his Guardian and Curator, Alene Aiken, Appellant, v. William F. CLARY, Respondent.
    No. 50792.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      John B. Newberry, and John Lewis, Springfield, for appellant.
    Irving W. Schwab, Thomas D. Dwyer, Keith V. Williams, Springfield, for respondent.
   FINCH, Judge.

Plaintiff went to trial on Count III of a malpractice action wherein he alleged negligence of defendant in failing sufficiently to advise plaintiff of the hazards and risks involved in insulin shock therapy to enable plaintiff to give an informed consent for the treatment. Plaintiff alleged that as a result of such therapy administered by defendant he was caused to lapse into a coma and to suffer organic brain damage, resulting in total disability. He sought recovery of $150,000. The jury returned a verdict for defendant. After an unavailing motion for new trial, plaintiff appealed to this court.

Plaintiff seeks a new trial on these grounds: (1) That the court erred in sustaining defendant’s objection to plaintiff asking the jury panel on voir dire examination whether any of them were officers, agents, employees or stockholders of the Medical Protective Company of Fort Wayne, Indiana, a company which it was stipulated had an interest in the outcome of the case; (2) that there were errors committed in the giving and refusing of certain instructions, as detailed in the motion for new trial, and (3) that there was no evidence in the record on which a verdict for defendant could be based, and hence the verdict was against the weight of the evidence.

In response thereto, the defendant, in addition to specific contentions on these three particular assignments of error, claims that such alleged trial errors were immaterial for the reason that plaintiff failed to make a submissible case for the jury. Accordingly, we first consider that contention on the theory that if correct it would dispose of the case. We proceed, therefore, to examine the evidence, which, insofar as pertinent to this assignment and viewed most favorably to plaintiff, was as follows:

After military service from 1941 to 1945 plaintiff entered employment of the Frisco Railroad, ultimately serving as an electrician in the diesel engine department. Early in 1961 plaintiff became irritable and “changed almost his entire personality.” He was Cross with the children, particularly a teen-age daughter, spent money on things for which he had never spent money before, and had trouble sleeping so that he lost a great amount of sleep and rest. His wife discussed with him the matter of seeing a doctor, but he maintained that his wife needed a doctor as much as he did, and that it was she who was “way out in left field.” He agreed to see a doctor if she would, and they then consulted Dr. Lewis E. Jorel of Springfield, who previously had treated their daughter.

Following conferences by the doctor with both plaintiff and his wife, plaintiff entered St. John’s Hospital at Springfield, Missouri, on June 3, 1961, for a complete physical examination. Numerous tests and procedures were utilized, as a result of which Dr. Jorel found no physical ailments. Dr. Jorel then discussed with plaintiff a need for psychiatric examination and arranged for defendant, Dr. William F. Clary, to examine and talk to plaintiff and evaluate him for psychiatric help. Dr. Clary testified that this examination was made and, among other things, related that plaintiff charged his wife with infidelity but in their conversation had no evidence or basis for such charge, and the doctor was convinced that this was a figment of his imagination. Dr. Clary’s diagnosis was that plaintiff was a paranoid schizophrenic, and he recommended to plaintiff that he have both electric and insulin shock therapy. Plaintiff at that time said that he would think about the matter of such treatment, and Dr. Clary said he would talk further to Dr. Jorel. Thereafter, Dr. Clary talked to Dr. Jorel of his diagnosis and recommendation, and also talked to plaintiff’s wife. She testified that Dr. Clary told her that plaintiff was a very sick man, that he needed treatment, but Dr. Clary didn’t think plaintiff would submit thereto himself. She said that Dr. Clary suggested that they see if they could talk plaintiff into taking the treatment and if not that proceedings be started to force the treatment since he thought plaintiff was that sick. Meanwhile, plaintiff talked to his wife and to Dr. Jorel and plaintiff told him that he wanted to take the treatment and would take it willingly. Subsequently, Dr. Clary had a second conversation with plaintiff about coming down to the psychiatry section and having a course of electric shock and insulin therapy.

With respect to the information given by Dr. Clary to plaintiff in these conversations as to the nature of the treatment and the risks involved, plaintiff offered in evidence certain statements of the defendant given in an earlier deposition. That testimony was as follows:

“Q. When you talked to him previous to the moving down to psychiatry and signing the release, did you tell him what the possible effects of insulin shock therapy might be?
“A. I told him it would put him to sleep, I told him there was risks involved, I told him the same thing about electric shock therapy. I didn’t belabor the point, I told him it was risky because this guy was real shook, but I told him it was risky, and he had no questions.
“Q. Did you tell him it might possibly result in his death?
“A. I implied it. In talking about the anesthetic, I said people take anesthetic, and there are hazards. Some people overreact to anesthetics, and insulin, I told him, it is like being put to sleep, there are risks involved. In terms of specifically telling him, ‘This can kill you,’ no, sir, I didn’t.
“Q. Did you tell him it might possibly result in a delayed awakening, possible brain damage?
“A. No, I didn’t tell him that.”

Dr. Clary testified that he thought the plaintiff had the mental capacity at least to understand the ordinary affairs of life, understand what the treatment really was and what it might do to him. He again related what he had told plaintiff and stated that he tried to explain it to him on a level he would understand, and he thought plaintiff knew exactly what he was getting into. At the second conference between Dr. Clary and plaintiff, the latter agreed to take whatever treatment Dr. Clary recommended.

Accordingly, on June 9, 1961, a nurse in the psychiatric ward presented to plaintiff a form of “Consent to Shock Therapy.” It read as follows: “I (We) hereby request and authorize Dr. Clary and whomever he may designate to assist him, to administer insulin and/or electroshock therapy to Mr. Aiken; and to continue to administer such therapy and such other supplemental treatment as he may deem advisable from time to time. The effect and nature of shock and/or insulin treatment have been fully explained to me (us), as well as the hazards involved. Notwithstanding the fact that there are risks to the patient inherent in this treatment, I (we) voluntarily accept the risks involved. No assurance has been made by anyone with respect to the results that may be obtained. I have been given a copy of the pamphlet ‘Information to Relatives.’ ” The nurse testified that she did not explain anything about the dangers involved in the therapy when she presented the consent for signature. The plaintiff read the consent in her presence and she asked him if he had any questions, but he had none and he signed the consent.

Beginning on June 12, 1961, and continuing through June 22, 1961, plaintiff was given a series of shock treatments which involved insulin in increasing amounts of from 40 to 260 units. On June 22, 1961, plaintiff went into a deep coma. He suffered a delayed awakening trom the insulin and did not respond to the procedures used for the purpose of bringing the patient out of the coma. A specialist in internal medicine was called in and plaintiff was transferred to the intensive care unit but the coma was prolonged and as a result plaintiff suffered brain damage.

Dr. Robert L. Lam, M.D., a specialist in neurology and psychiatry, testified for plaintiff that from an examination made by him at the Veterans Hospital in Little Rock, Arkansas, on January 16, 1964, his opinion was that plaintiff had severe organic brain damage, that he was totally incapacitated in terms of employment and that his condition was permanent as a result of the prolonged insulin coma. Plaintiff was still in the Veterans Hospital at the time of trial.

Dr. Lam was interrogated as to dangers in insulin shock therapy and he testified that the possible dangers or complications thereof are coma and death or prolonged coma resulting in various degrees of brain damage, or that there might he the production of epilepsy or localized paralysis, or there might be a vascular disturbance. In addition, he said that with convulsions that may occur one could have fractures of certain types, either of the vertebrae or the extremities. The doctor was not asked and did not undertake to testify as to the frequency of occurrence of such events, or any of them, and said that no doctor could predict which patient would be the one to have trouble, saying, “So that the only thing one can say is that, when one has a patient getting deep coma insulin, that there is a possibility that this could occur.” Dr. Lam also testified that there was nothing improper in the administration of the insulin shock therapy and that the administration thereof was according to good medical practice. Dr. Lam was not asked about the adequacy of defendant’s disclosures to plaintiff.

On this question of the dangers from insulin shock therapy, the plaintiff also offered a portion of a deposition of the defendant, as follows:

“Q. Doctor, would you characterize insulin shock therapy as a procedure that has inherent dangers to the patient it is given to ?
“A. It has some risks; it has some risks.
“Q. What are those risks, what can happen ?
“A. Well, what can happen, the main problem in insulin therapy is that if you— insulin is a funny drug, a person can react to it, and a certain point is reached, sometimes you get what we call delayed awakening. This is the major complication of insulin therapy, and every psychiatrist who has used insulin will say it is. You can go ahead and use the emergency procedure for delayed awakening, which involves giving whole blood and reverse the delayed awakening, and the patient will come out fine. We have had that occasionally, very rarely you get a situation where coma is prolonged, and no matter what you do, you can’t reverse the coma, and then undesirable effects do happen. If a person is in a coma a long time, he can get some cortical brain damage.”

Defendant first asserts that plaintiff failed to make a submissible ease because he failed to offer any expert medical evidence as to what a reasonably careful and prudent physician engaged in similar practice would do under the same or similar circumstances with respect to disclosure of risks involved in the proposed therapy. There is no dispute but that plaintiff did not offer any expert testimony on this matter of what a reasonably prudent practitioner would disclose. We must determine, therefore, whether plaintiff is required to offer such proof in order to make a sub-missible case.

The basic philosophy in malpractice cases is that the doctor is negligent by reason of the fact that he has failed to adhere to a standard of reasonable medical care, and that consequently the service rendered was substandard and negligent. In our judgment, this is true whether the alleged malpractice consists of improper care and treatment (the usual malpractice case) or whether it is based, as here, on an alleged failure to inform the patient sufficiently to enable him to make a judgment and give an informed consent if he concludes to accept the recommended treatment.

How, then, is a jury to determine whether a physician has been negligent in failing to inform his patient adequately to enable him to make an informed decision whether to consent to recommended treatment? What proof must a plaintiff offer? Obviously, in addition to evidence as to plaintiff’s condition and the treatment proposed and administered, there must be testimony as to what risks are involved and what disclosures were made by the doctor. These necessarily are a part of plaintiff’s case. Such evidence was offered by plaintiff in this ease. The real issue here is whether plaintiff is required to go further and as a part of his case offer evidence as to. a standard of medical conduct with reference to disclosures by the physician to his patient or whether this is a matter which the jury may decide without such expert testimony. There are cases from some states which hold that such expert testimony is necessary as a part of plaintiff’s case and cases from other states holding that such evidence is not required. Plaintiff asserts that Missouri is in this latter group because this court, in the case of Mitchell v. Robinson, Mo., 334 S.W.2d 11, 79 A.L.R.2d 1017, held that expert medical testimony was not necessary for the jury to pass upon the alleged failure of the doctor to warn of the hazards of shock therapy. Counsel says that he relied thereon in not offering any expert testimony on the standard for disclosure by a physician. The factual situation in the Mitchell case was different from that here, plaintiff there contending that the doctors made no disclosure of risks and the doctors testifying that they did make full disclosure to the patient. It is true that this court specifically held under those facts that no expert testimony was required as a part of plaintiff’s case and that, based on frequency of occurrence of such fractures as disclosed by the evidence, there was a definite duty to inform the patient of the risks involved, the breach of which was negligence. The question of whether expert medical evidence would be required in other alleged inadequate disclosure cases with different factual situations was not specifically stated, but the court did state, 1. c. 16, in referring to the case of Steele v. Woods, Mo., 327 S.W.2d 187, as follows: “This case, Steele v. Woods, does not explicitly hold that it is the duty of a doctor to warn his patient of the hazards of a proposed treatment but there is a lesson in the case and its plain implications are certainly no comfort to the doctors here.” The -inference therefrom is possible that such proof would not be required.

We have reexamined this question and have concluded that the question of what disclosure of risks incident to proposed treatment should be made in a particular situation involves medical judgment and that expert testimony thereon should be required in malpractice cases involving that issue. The question to be determined by the jury is whether defendant doctor in that particular situation failed to adhere to a standard of reasonable care. These are not matters of common knowledge or within the experience of laymen. Expert medical evidence thereon is just as necessary as is such testimony on the correctness of the handling in cases involving surgery or treatment. In Fisher v. Wilkinson, Mo., 382 S.W.2d 627, 632, we held: “Without the aid of expert medical testimony in this case a jury could not, without resorting to conjecture and surmise or by setting up an arbitrary standard of their own, determine that defendants failed to exercise their skill and use the care exercised by the ordinarily skillful, careful and prudent physician acting under the same or similar circumstances.” And, as we said in Pedigo v. Roseberry, 340 Mo. 724, 736, 102 S.W.2d 600, 607: “Juries should not be thus turned loose and privileged to say, perchance, the method of treating an injury * * * [or an illness] was negligent notwithstanding, for instance, the uncontradicted competent testimony establishing] that the uniformly adopted practice of the most skillful surgeons [or physicians] had been followed.” The question is not what, regarding the risks involved, the juror would relate to the patient under the same or similar circumstances, or even what a reasonable man would relate, but what a reasonable medical practitioner would do. Such practitioner would consider the state of the patient’s health, the condition of his heart and nervous system, his mental state, and would take into account, among other things, whether the risks involved were mere remote possibilities or something which occurred with some sort of frequency or regularity. This determination involves medical judgment as to whether disclosure of possible risks may have such an adverse effect on the patient as to jeopardize success of the proposed therapy, no matter how expertly performed. (Defendant in this case testified that plaintiff was “real shook.”) After a consideration of these and other proper factors, a reasonable medical practitioner, under some circumstances, would make full disclosure of all risks which had any reasonable likelihood of occurring, but in others the facts and circumstances would dictate a guarded or limited disclosure. In some cases the judgment would be less difficult than in others, but, in any event, it would be a medical judgment. In malpractice cases involving surgery or treatment the fact that the procedure or the operation is simple, rather than difficult and complex, does not eliminate the requirement that a plaintiff offer expert testimony that the procedure followed constituted a failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession in good standing practicing in similar localities. Plaintiff would be required to offer such expert testimony in order to make a sub-missible case. Likewise, in our judgment, it is not possible in cases dealing with alleged failure to make adequate disclosure to say that there must be expert medical testimony in more serious cases as to what a reasonable medical practitioner would have done, but that such proof is not required in less complicated cases. Such a distinction is suggested in some of the writing on this subject, but we do not subscribe thereto. Accordingly, we hold that plaintiff, in order to sustain his burden of proof, is required to offer expert testimony to show what disclosures a reasonable medical practitioner, under the same or similar circumstances, would have made, or, stated another way, that the disclosures as made by the defendant do not meet the standard of what a reasonable medical practitioner would have disclosed under the same or similar circumstances. To whatever extent Mitchell v. Robinson, Mo., 334 S.W.2d 11, 79 A.L.R.2d 1017, is inconsistent with the views herein expressed, it is disapproved.

Once plaintiff has offered sufficient proof to make a submissible case, including the required expert testimony which we have discussed, then the ultimate determination of whether defendant did or did not fail to disclose to plaintiff in accordance with the standard of what a reasonable medical practitioner would have done is a jury question under proper instructions from the court. Instructions for malpractice cases involving procedures as set out in Missouri Approved Jury Instructions can be modified to fit a case of alleged insufficient disclosure.

In view of the fact that plaintiff made no offering of any expert testimony relative to the extent of disclosure a reasonable medical practitioner would have made under the same or similar circumstances, he failed to make a submissible case for the jury. However, we will not affirm this case on that basis for the reason that counsel for plaintiff asserted in the presentation of the case that in the case of Mitchell v. Robinson, supra, this court had stated that expert testimony is not necessary in cases involving extent of duty to warn, and that he relied thereon in offering no proof of that character. In the light of language used in the opinion of Mitchell v. Robinson, supra, it was reasonable for counsel to assume the lack of a requirement of such testimony in this case. Under those circumstances, plus the fact as hereinafter set out that error was committed in limiting the voir dire examination, we feel compelled to reverse and remand for a new trial in order to afford plaintiff an opportunity to offer expert testimony on the standard of disclosure required.

Defendant next contends that plaintiff did not make a submissible case because there was no proof of the frequency of occurrence or incidence of any of the risks connected with insulin shock therapy, and hence plaintiff failed to disclose any duty to warn. Such testimony certainly is pertinent to the duty to warn, but, in the final analysis, the test, as hereinabove indicated, is what a reasonable medical practitioner would do under the same or similar circumstances. Undoubtedly, this matter of frequency of occurrence and extent of the danger would be factors considered by doctors in their testimony as to what a reasonable medical practitioner would do under the same or similar circumstances and should be offered, but we do not believe that the establishment of a submissible case by plaintiff depends on expert testimony on behalf of the plaintiff establishing extent of the danger and frequency of occurrence so long as there is proof, as here, that bad results such as prolonged coma and brain damage do result sometimes and are not mere rare or remote possibilities.

Finally, defendant contends that plaintiff did not make a submissible case in the absence of proof that plaintiff would not have consented to the insulin shock therapy if he had been informed adequately of the risks involved. Such testimony is not required, and this contention is overruled. Such a requirement would make recovery impossible in the case of a patient who died or, as here, was unable to testify. This does not mean, however, that plaintiff is not required to establish a causal connection between the doctor’s failure sufficiently to inform and the injury for which recovery is sought. The matter of causation still must be submitted to the jury. Obviously, if the jury was convinced from all the evidence that a more complete disclosure would have made no difference to plaintiff, and that he still would have consented to the therapy or procedure, then plaintiff has not established a right of recovery. For example, if the evidence was that the plaintiff was about to die and chances for survival were one out of ten, a jury might well conclude that a more complete disclosure of hazards involved in an operation would have made no difference to plaintiff in deciding whether to consent to an operation which, if successful, would make his survival reasonably likely. On the other hand, a jury could find from all the facts and circumstances in a particular case that had plaintiff been properly informed he would not have consented to the treatment, and this is so even though plaintiff does not specifically so testify. The submission of such causation should be in accordance with the new Missouri Approved Jury Instructions.

Plaintiff also complains specifically as to the giving and refusal of certain instructions. We see no reason to review these assignments of error inasmuch as the case will be retried and the instructions will be framed within and under the standards of the Missouri Approved Jury Instructions.

The remaining assignment by plaintiff which we need to consider is that the court erred in sustaining defendant’s objection to plaintiff asking the jury panel on voir dire examination as to whether any members of the jury panel were officers, agents, employees or stockholders of the Medical Protective Company of Fort Wayne, Indiana. It had been stipulated at a pretrial conference that said company, “a stock company, has an interest in the defense of this suit.” On the morning of trial, after receiving the jury panel, defendant filed a written objection to the voir dire examination of the jury as to whether members thereof were stockholders, officers, directors or agents of the Medical Protective Company of Fort Wayne, Indiana. Attached was an affidavit by Byron H. Somers, President of the Medical Protective Company, to the effect that the company had no stockholders, officers or directors of the company resident in Missouri, and that it had only one employee in Missouri, to-wit, one Ralph Borgmann of St. Louis, whose name did not appear on the list of prospective jurors. Defendant asserted that voir dire examination of the panel on this question could not possibly disclose any bias or interest on the part of prospective members, and would only be calculated to inform members of the jury panel of alleged insurance coverage. Mr. Somers was not present and did not testify, and there was no evidence offered in support of the objection to such voir dire examination other than the affidavit of Mr. Somers. In our opinion, it was error, on the basis of this objection and attached affidavit, to deny to plaintiff the right to make this inquiry on the voir dire. This matter occurred without any advance notice of any kind to the plaintiff, and there was no opportunity available to the plaintiff to cross-examine Mr. Somers as to the assertion of facts contained in his affidavit. In addition, the affidavit made no reference to whether members of the families of the jury panel might be stockholders, officers, directors or agents of the company. By this ruling, we do not mean to hold, and do not hold, that it would never be possible for sufficient proof to be offered to satisfy the trial court that there was no possibility whatsoever that any members of the jury panel or members of their families could be stockholders, officers, directors or agents of the insurance company interested in that particular case, but such proof should not be made by affidavit, depriving the plaintiff of an opportunity to cross-examine. Such proof would have to be sufficient to satisfy the trial court that there was no possibility that a member of the panel or his family could be a stockholder, officer, director or agent of the insurance company, that questions relating thereto could serve no useful purpose and that such questions could not be asked in good faith. The proof offered in support of the objection in this instance was insufficient, and it was error to deny to plaintiff the right to so interrogate the jury panel on the voir dire.

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

All of the Judges concur.

      . Examples of cases so holding are Williams v. Menehan et al., 191 Kan. 6, 379 P.2d 292; Di Filippo v. Preston, 3 Storey 539, 53 Del. 539, 173 A.2d 333, and Govin v. Hunter, Wyo., 374 P.2d 421.

      . Example of case so holding is Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520.

      . For example, in 60 Columbia Law Review 1193, 1197, it is stated: “Furthermore, it may be argued that the Mitchell ease impliedly adopted a different limitation, because language in the case may be interpreted to mean not only that it is a jury question whether any disclosure was made at all, but also that the jury is permitted to resolve conflicts of lay testimony concerning whether in a given ease it is negligent not to disclose.” See also 27 Missouri Law Review 87; Washington University Law Quarterly, June 1962, p. 414; 109 Pennsylvania Law Review 768; Harvard Law Review, Vol. 75 (1961-1962), p. 1445; 37 Colorado Law Review 182; 40 Minnesota Law Review 877, and 41 Minnesota Law Review 381, for discussions of the Mitchell case and of this question of informed consent.

      . This is the language used in Instruction No. 11.06 of Missouri Approyed Jury Instructions.

      . Exceptions do exist in some cases such as those where the doctor has left foreign objects in operative cavities, such as Null v. Stewart, Mo., 78 S.W.2d 75, or in those cases where the doctor admitted using an impractical method which would produce an unsatisfactory result, such as Richeson v. Roebber, 349 Mo. 132, 159 S.W.2d 658, 141 A.L.R. 1, or where the doctor admitted that the average or reasonable practitioner would have advised as to the need of an operation, as in Steele v. Woods, Mo., 327 S.W.2d 187. In the great majority of cases a submis-sible case may be made only if expert medical testimony is introduced. See Williams v. Chamberlain, Mo., 316 S.W.2d 505, and Fisher v. Wilkinson, Mo., 382 S.W.2d 627.

      . Conceivably it might be argued that in the Mitchell case the doctors, by warning the patient in great detail of the dangers and risks of the treatment, as they testified they did, recognized that a reasonable medical practitioner would have made such full disclosure and thereby waived expert testimony thereon. On such a basis the case is not necessarily inconsistent with the decision herein, but to the extent that Mitchell holds or implies that expert medical testimony is not required in informed consent cases where there is no waiver, it is disapproved. .—
      Steele v. Woods, Mo., 327 S.W.2d 187, was quoted and relied on in Mitchell v. Robinson in holding that expert testimony was not necessary in that case. The Steele case involved the need for expert testimony to establish whether a doctor had complied with a duty to advise treatment, admittedly necessary, under a given state of facts. Where defendant recognized a duty to inform and that a reasonable practitioner would have done so in that situation, there was no need for expert testimony to so establish. Steele is not in conflict with our ruling herein, and should not be so construed.

      . Por a collection of cases holding it error to deny the right of interrogation on the voir dire under rather similar circumstances, see 4 A.L.R.2d 808.


text:
    KANSAS CITY TERMINAL RAILWAY COMPANY, Plaintiff-Respondent, v. The INDUSTRIAL COMMISSION of the State of Missouri, the Department of Labor and Industrial Relations, Don L. Cummings, Director, Division of Industrial Inspection, William J. Delahunty, Assistant Director, Division of Industrial Inspection, and Thomas F. Eagleton, Attorney General of the State of Missouri, Defendants-Appellants.
    No. 51322.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      Sam D. Parker, W. M. Stapleton, Kansas City, Harold L. Harvey, Gilbert A. Schues-sler, Paul R. Moody, St. Louis, Forrest P. Carson, Jefferson City, for respondent.
    Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for appellants.
   FINCH, Judge.

This appeal involves a declaratory judgment action by plaintiff on its own behalf and as representative of a class, seeking to have Chapter 291 declared inapplicable to railroads, or, in the alternative, that the provisions of that chapter were repealed by implication by the enactment of the Public Service Commission Law in 1913. The trial court sustained plaintiff’s motion for summary judgment, holding that the suit was maintainable as a class action, that Chapter 291 was inapplicable to plaintiff and other railroads similarly situated as a class, and that defendants should be enjoined from inspecting railroads or charging them an inspection fee. Defendants appealed. We have jurisdiction on the basis of the fact that state officers are parties and the constitutionality of statutes is in issue.

The facts as established by the pleadings and evidence offered on the motion for summary judgment are as follows: Plaintiff is a Missouri railroad corporation. The Director of Industrial Inspection of Missouri, one of the defendants, through his agents, inspected plaintiff’s premises at the Union Station in Kansas City, Missouri. The Director then ordered plaintiff to pay the fee for such inspection prescribed by § 291.130 in the amount of $39.00. The premises of plaintiff which were inspected consisted of portions of the offices, the subbasement facilities, and the docks and platforms at Union Station in Kansas City. Plaintiff refused to pay the inspection charge on the basis that said Director did not have jurisdiction to make the inspection in question. The Director continued to demand payment, citing an opinion of the Attorney General, expressed an intention to continue the inspection of railroad property in Missouri, and stated that refusal to pay the inspection fee constituted a misdemeanor. The filing of this suit followed.

An affidavit of the Secretary of the Public Service Commission of Missouri, filed in connection with the motion for summary judgment, recited that the Commission has issued General Orders 3, 24 and 40, which pertained to railroads, and that inspections are made by the Public Service Commission pursuant thereto or to insure compliance therewith. Copies of said General Orders were attached to the Secretary’s affidavit and submitted to the court. The affidavit indicated that the Commission inspects shops, stations, docks, freight yards, engines, cars, and other physical properties and equipment of the railroads. In addition, reports of accidents are investigated. An affidavit of the Director of Industrial Inspection for Missouri, offered by defendants, stated that existing records of the Division dating back to 1941 show that railroads have been inspected by the Division continuously since that time. It stated further that the Division continued to inspect railroads after institution of this suit by plaintiff, and that members of the class purportedly represented by plaintiff have consented to these continuing inspections and have paid the prescribed inspection fees.

The first point urged by defendants is that the trial court erred in holding that this suit was maintainable as a class action. This point is well taken. Civil Rule 52.08, V.A.M.R., permits a class action where the persons constituting the class are very numerous or it is impracticable to bring them all before the court and the right sought to be asserted is joint, common, or several, with a common question of law or fact. It is required further by Civil Rule 52.09, V.A.M.R., that the petition allege facts showing that plaintiff or plaintiffs have been fairly chosen and adequately and fairly represent the whole class. The rule specifically requires that these allegations must be proved. This requirement is for the reason that judgment in a class action determines rights of persons not before the court. The rule is well stated in Hribernik v. Reorganized School District R-3, Mo.App., 276 S.W.2d 596, 599, as follows:

“ * * * Our duty is to protect absent parties in suits of this sort. Plaintiffs do not even undertake to allege or to prove facts showing that they were ‘fairly chosen,’ or chosen at all, and that they ‘adequately and fairly represent the whole class.’ How they were chosen, if indeed they were chosen, or why they might adequately and fairly represent the class is left for us to ponder. The requirements of the supreme court rule cannot be regarded as merely technical or directory. They are mandatory. Campbell v. Webb, 363 Mo. 1192, 1199, 258 S.W.2d 595, 599. They reveal the court’s solicitude for the constitutionality of Section 507.070 by requiring that the elements of due process be accorded to all absent persons whom others who sue would bind as a class. Doubtless the rule was formulated and adopted to achieve consistency with the philosophy announced in Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741, which demonstrates that Art. XIV, U.S. Constitution, forbids suitors to bind members of a class unless it is made apparent by the procedure followed that they fairly and adequately represent that class.” See, also, Sheets v. Thomann, Mo.App., 336 S.W.2d 701, and City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546.

In this case plaintiff’s petition contained the following allegations with respect to the maintenance of this suit as a class action:

“4. Plaintiff and all other railroad corporations within the purview of Public Service Commission Law mentioned above constitute a class having joint, common, or several rights with a common question of law or fact, involved in the justiciable issue here in question; and, said class being too numerous and otherwise impracticable to bring all individually before the Court herein, plaintiff is such one of said class as will fairly insure adequate representation of all in said respects. Plaintiff, accordingly, sues, respectively, in its individual capacity, and in the above-mentioned capacity of class-representative.”

No proof was offered by plaintiff to show that it was impracticable to bring in all twenty-four (the number shown to be subject to PSC General Orders 3, 24 and 40) of the railroads. In addition, the petition did not allege that plaintiff was fairly chosen to represent the class, and there was no evidence of any kind on the subject. Unless we resort to mere conjecture, we can conclude only that plaintiff was a self-appointed representative. Furthermore, there is nothing in this record to show any desire on the part of other railroads to be free of the inspection by the defendants and hence nothing to show a common interest or claim between them and plaintiff. The only evidence before us pertaining to the existence or nonexistence of a joint or common right or one involving a common question of law or fact was the affidavit offered by the defendants to the effect that other railroads in Missouri have continued to be inspected and to pay the inspection fees involved. This is indicative of the absence of a common interest between the railroads. Under such circumstances, we hold there was not a sufficient showing to permit the maintenance of a class action, and the judgment of the trial court should have been limited to a determination of the rights of plaintiff individually rather than as a representative of a class.

The next proposition urged by defendants is that the trial court erred in its holding that Chapter 291 did not apply to plaintiff and other railroads. Plaintiffs petition had asserted (1) that § 291.060 by its terms was inapplicable to railroads (or if intended to be applicable, and so construed, it would be unconstitutional as violative of Article III, § 23 of the 1945 Missouri Constitution), and (2) that whatever applicability the statute had to railroads had been repealed by implication by the enactment in 1913 of the Public Service Commission Law. The finding and judgment of the trial court recites simply that Chapter 291 is inapplicable to plaintiff and other railroad corporations. No reason is assigned, but we presume from the wording of the judgment that the finding was on the basis that the act by its terms was inapplicable — not that the statute had been repealed by implication.

Plaintiff’s petition sought relief from Chapter 291 generally, and the court’s judgment holds that Chapter 291 is inapplicable, but actually the section under which defendant Director made his inspection, and for which a fee was charged, is § 291.060, and this is the section which is analyzed and discussed by plaintiff. Plaintiff’s brief recognizes that whether he has the right to make such inspection involves only this section. The title and legislative history of other sections in Chapter 291 are not discussed or briefed. The real question for decision, therefore, is whether § 291.060 authorized defendants to inspect plaintiff’s facilities.

In 1901 the General Assembly enacted a statute the title of which read, “An Act to provide for the appointment of a factory inspector and defining his term of service, salary, powers and duties.” (1901 Session Laws, p. 197.) This is the statute which, with some later amendments, became what is now § 291.060.

This statute was amended in 1903, 1907 and 1919. The titles of the amending statutes were as follows:

“An Act to amend section 2 on page 197 of the session acts of 1901, entitled ‘Labor factory inspector;’ so as to make said act apply only to cities having a population of thirty thousand inhabitants and over.” (1903 Session Laws, p. 218.)
“An Act to amend section 1 of an act to provide for the appointment of a factory inspector, and defining his term of service, salary, powers and duties, approved April 17, 1901; and to repeal section 2, as amended and approved March 27, 1903; and also to repeal sections 3, 4 and 5 of said act, so approved April 17, 1901, and to enact four new sections in lieu thereof, to be known as sections 2, 3, 4 and 5.” (1907 Session Laws, p. 326.)
“An Act to amend section 7823, of article 5, chapter 67, Revised Statutes of Missouri, 1909, concerning the state factory inspector, his appointment, term of office, oath and bond, by striking out certain words and inserting others in lieu thereof, and to repeal sections 7824, 7825 and 7826 of said article 5, chapter 67, Revised Statutes of Missouri, 1909, relating to the state factory inspector, his powers, duties, office, salary and the location of his office and enacting new sections in lieu thereof relating to the same subject matter, to be numbered sections 7824, 7825, and 7826.” (1919 Session Laws, p. 452.)

It was and is the contention of plaintiff that the title to the above act, both as originally enacted and as amended, had no application to plaintiff or other railroad companies and their operations. Plaintiff cites and relies upon the case of Williams v. Atchison, Topeka & Santa Fe Ry. Co., 233 Mo. 666, 136 S.W. 304, upon the question of whether the title of the act here involved was broad enough to and was intended to apply to railroads. The Williams case involved a suit for recovery for death of a switchman from injuries received while in the employ of the railroad. Plaintiff alleged negligence on the ground that the railroad unloading platform was constructed in violation of the Missouri statute which prescribed safety measures for railroad yards, switches, roundhouses, switch offices, freight offices and passenger depots. (§ 7844, RSMo 1909.) The title of that act read: “An Act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employes.” This court upheld the contention that the statute was unconstitutional insofar as its terms applied to railroads, saying, l.c. 306: “ * * * no one reading the title to the original act would for a moment think or even imagine that railroads, or railroad properties, or railroad employés were being considered or legislated upon in the act.” The opinion refers to a legislative history in Missouri of treating railroads, their property and employees as separate legislative subjects, rather than being included with manufacturing, mechanical or mercantile establishments. Consequently, the court held, the terms “manufacturing, mechanical, and mercantile establishments” did not refer to or include railroads.

Defendants seek to distinguish the predecessor act of § 291.060 from the act involved in the Williams case by saying that the title of the latter was made applicable to types of establishments, whereas the title of the former is applicable to an office established, viz., the state factory inspector, his powers and duties, and that everything in the act and subsequent amendments relate to that office. The fallacy in that argument is that it overlooks the fact that the office created is a factory inspector and the subject of the title was “factory inspector.” The descriptive term factory identifies and limits the office created, just as did the terms “manufacturing, mechanical and mercantile” with respect to the establishments referred to in the title of the act involved in the Williams case. We see no reason to depart from the ruling in the Williams case. We do not believe that anyone would believe that the title “factory inspector” was intended to or had any application to railroad operations. At that time there was a statute, enacted in 1891 (1891 Session Laws, p. 179, at 181), which defined “factory” as “ * * * any premises where steam, water or other mechanical power is used in aid of any manufacturing process there carried on.” This definition does not suggest that a factory inspector would have anything to do with railroads.

Defendants, in their brief and oral argument, concede that a railroad is not a factory, but contend that there are certain operations by the railroads specifically mentioned in the body of § 291.060 which defendants do have the right to inspect. Originally, the statute, as enacted in 1901, simply called for inspection of “all factories,” but in the amendment of 1907, and again in the amendment of 1919, certain additional establishments were enumerated in the body of the act, even though not referred to in the title. Presently, said section refers to “all factories, warehouses, office buildings, freight depots, machine shops, garages, laundries, tenement workshops, bakeshops, restaurants, bowling alleys, pool halls, theaters, concert halls, moving picture houses, or places of public amusement, and all other manufacturing, mechanical and mercantile establishments and workshops.” Defendants seize upon the terms “warehouses, office buildings, freight depots, machine shops” and contend that these provisions give defendants the right to make the inspections which they' did make at Kansas City. They overlook the fact that the title of the act — the subject matter — was not changed in any of these amendments. We are not called upon to and do not determine the validity of the inclusion of all of these numerated establishments by the various amendments. We hold simply that the title was not broad enough to be applicable to railroad operations. Nor do we think the Legislature intended to or did by the various amendments separate out certain segments of the railroad operation, as, for example, freight depots or the office facilities incident to the railroad operation, and subject them to the inspections by the factory inspector. We do not mean to hold that under any and every circumstance the mere ownership of property by a railroad corporation would cause § 291.060 to be inapplicable. For example, if a railroad company purchased the stock of a manufacturing corporation, which it then owned and operated as an investment, and not as a part of the regular overall railroad operation, the manufacturing company, otherwise subject to § 291.060, would not be relieved therefrom by the change in ownership of its corporate stock, but we do hold that the operation of the various incidental phases of the railroad operation (this includes the facilities of plaintiff which were inspected at Kansas City) are not subject to the terms of § 291.060.

In view of this conclusion, we do not reach for decision the point asserted by plaintiff that the act of 1901, as amended, dealing with factory inspectors, insofar as applicable to railroads, was repealed by implication by the enactment of the Public Service Commission Law in 1913. However, we have this observation with reference thereto. Repeals by implication are not favored. For such a result to be reached, the court must be convinced that the two statutes are so repugnant that both cannot stand, and therefore the Legislature necessarily intended repeal, even though they did not expressly so provide. In this instance, if both statutes were applicable, we would have duplicate inspection by different agencies of the state. Such duplication may be unnecessary or even undesirable, but the likelihood that the duplicate inspections are to repugnant as to result in implied repeal of the first statute is at least doubtful.

Finally, defendants assert that the judgment of the trial court was too broad and beyond the scope of the pleadings and issues in that it did not limit the injunction to authority asserted under Chapter 291. In view of the fact that this case must be remanded to permit entry of a judgment on behalf of plaintiff alone, and not with respect to railroads similarly situated as a class, the judgment should be so framed as to hold that § 291.060 does not apply to plaintiff, and to enjoin defendants from making inspections of plaintiff’s railroad facilities thereunder, and from assessing inspection fees against plaintiff pursuant to § 291.130 for inspections made under § 291.060. Accordingly, the judgment herein is reversed and the cause remanded with directions to enter a judgment in favor of plaintiff in accordance with the views expressed in this opinion.

All of the Judges concur.

      . All references are to RSMo 1959, V.A.M.S., unless otherwise indicated.