author: BRADY, Commissioner.

text:
    Anna PHILLIPS, Administratrix of the Estate of John Phillips, Deceased, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a corporation, Defendant-Appellant.
    No. 30707.
    St. Louis Court of Appeals. Missouri.
    Oct. 17, 1961.

      William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for appellant.
    Morris E. Stokes, Burton H. Shostak, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.
   BRADY, Commissioner.

This case comes to the writer upon reassignment. The respondent, mother and administratrix of the estate of her deceased son, brought this action for wrongful death against the Union Electric Company, hereinafter referred to as the appellant. Trial resulted in verdict and judgment for respondent in the amount of $15,-000. We have jurisdiction of this appeal, §§ 3, 13, Article V, Constitution of Missouri, 1945, V.A.M.S.; Section 477.040 RSMo 1959, V.A.M.S.

There is only one point presented for our determination. Respondent pleaded and tried her case upon the theory of res ipsa loquitur. The appellant stood upon its motion for a directed verdict offered at the close of respondent’s case, and assigns as error the trial court’s refusal to grant that motion. We will confine the statement of facts to those pertinent to appellant’s assignment of error, and we will take the evidence in the light most favorable to respondent, giving her the benefit of all reasonable inferences to be drawn therefrom. Reddick v. City of Salem, Mo.App., 165 S.W.2d 666, at loc. cit. [2], page 670; Boese v. Love, Mo., 300 S.W.2d 453.

At the time the accident took place, the deceased was on the outside of the building, standing on the cornice with his hand on the window frame and his right shoulder in the vicinity of the scaffolding. His brother, who was working with him, was inside the building about one or two feet away from the window with his back to the window getting some material when he heard the deceased grunt and holler “Oh.” He turned toward the deceased and saw that his hand was on the window, that he was grunting, moaning and starting to slip. When he grabbed for the deceased, he received an electrical shock which shortly wore off and he grabbed hold of the deceased again. By this time, another workman who was helping the brothers arrived at the window and assisted in pulling the deceased into the building. The time of death is not exactly known, but the deceased died a short time after being pulled in through the window.

The pathologist who examined the deceased found post mortem lividity and cy-anosis, bulging of the veins about the neck, a roughly rectangular bum or mark which went through the superficial layers of the skin over the right shoulder scapular region, and a fresh linear burned area fairly deep through the skin on the right forearm. He also found fluid in the lungs and gave as his expert opinion that death resulted from electrocution. The physician also testified that there was no way of determining whether the burns were from electrical or other sources, and that he did not find burns on the feet of the deceased or on his hands.

The deceased was a carpenter and on the date of his death was engaged in the installation of aluminum frame windows in a building in the City of St. Louis. The installation of these aluminum frames required work to be done both on the outside and inside portions of the building wall. At the time of the accident in the evidence the deceased was doing the outside work and his brother, also a carpenter, was doing the inside work. They were working on one of the third story windows at about the middle of the building as it fronts on Sarah Street in the City of St. Louis. A metal scaffolding had been erected to facilitate this work. This scaffolding was about five feet wide and extended a few feet above the third floor, and abutted a copper covered cornice which extended along the building at that place at about the third floor level. This cornice was one and a half feet wide, approximately, and therefore the outside edge of the scaffolding was about six and a half feet from the building wall itself. The appellant maintained utility poles and electric wires along the frontage of the building, and since it appeared that the outside edge of the scaffolding would be close to one of the wires, the deceased’s employer requested the appellant to change its facilities in order to provide ample clearance for the scaffolding. The appellant sent a crew out to the scene and certain wires were removed and relocated about five days before the accident. The 2400-volt circuit maintained by the appellant along the Sarah Street frontage of this building included four wires: the A phase, which was furthest from the building; the B phase; a neutral wire; and the C phase, which was closest to the building. These lines stretch between the north pole, which is referred to as the alley pole in tire evidence and which was located about one foot north of the north line of the building at the edge of an alley, and the south pole which was some distance to the south and opposite the building in the parkway between the sidewalk and the street. The cross-arms on the northern pole were ten feet long and being centered on the pole extended approximately five feet to each side. The cross-arms on the south pole were six feet long and thus extended three feet to each side of the pole. Whereas the bottom of the pole, that is, where the pole entered the ground, was approximately ten feet west of the building, it is clear from the exhibits that the alley pole leaned inwardly toward the building, but just how far it leaned out of vertical is not stated in the evidence. The C phase wire, the one closest to the building, was cut by the appellant’s crew, rolled up and hung on a step about halfway up the south pole. That left the neutral wire closest to the building, and although it was an unener-gized wire, it was moved from the cross-arm away from the building toward the pole. The B phase wire was then cut and hung in a rope sling between the two poles. That left the A phase wire as the only energized wire remaining between these two poles, and the evidence most favorable to the respondent is that it was six feet away from the scaffolding. The respondent places great emphasis upon the lines running northwardly from the alley pole. These wires were not changed by the appellant’s crew. Plaintiff’s Exhibits 9, 11, and 13 showed the north utility pole with these wires being attached to the top cross-arm of a double' cross-arm. On the date of the accident, it is shown by the evidence that there was another cross-arm about a foot higher located on this pole, but these lines were as shown in the exhibits although at the time of the accident they were attached to the single cross-arm that was then at the top of the alley pole. The testimony given by the appellant’s foreman in charge of this work was that these lines would be about a foot north of the edge of the building.

There were no electric wires located in the wall against which the scaffolding was placed. The employees of appellant came out to the scene of the accident the day after it occurred and made some tests which, along with those made by the maintenance man for the building, showed no current in the wall, scaffolding, the radiator, or the window frame.

There was a great deal of testimony given regarding an electric drill and whether or not it was defective. Appellant also placed emphasis upon the presence of this drill and its alleged defectiveness in its brief and argument before us. However, as has been heretofore stated, we are constrained to take the evidence in the best light to respondent, and although the brother of decedent admitted on cross-examination that he had told the police officer investigating the accident that he was using the drill at the time the accident occurred and had further testified at the coroner’s inquest that about twenty minutes before the accident occurred he had been using the drill and got a “jolt” from it, he testified at the trial that he was not using the drill at the time of the accident and that neither was the decedent. The brother further testified that actually the day he received the shock was not the same day of the accident, and that there were several drills being used and he did not know which one he received a shock from. The brother of decedent did not testify as to the location of the drill when the accident occurred. The building maintenance man testified that a drill was laying on the floor at the time of the accident but it is obvious from his earlier testimony that he was not present at the time of the actual occurrence, that the witness was referring to the location of the drill when he arrived at the scene of the accident, a few minutes after it had occurred. The respondent’s expert witness testified that the drill would have to come into actual contact with the aluminum window frame in order for such a drill, operating off of ordinary current, to either shock or electrocute anyone. Taking the facts in the light in which we must view them, Boese v. Love, supra, we will consider the drill as not being in use at the time of the accident nor as being able to have caused the accident. Moreover, it clearly appears from the testimony of decedent’s brother that the decedent did not have any tool, electrical or otherwise, with him at the exact time of the occurrence which resulted in his death.

The respondent’s expert witness gave as his opinion in response to a hypothetical question that the appellant’s wires were the most likely source of the current that caused the death of decedent. The further effect of his testimony was that while burns such as those found upon the decedent cannot be determined to have been caused by electricity or some other source, he did not believe that this type of burn would be produced by the current used to operate a drill, but by substantially greater current. He further testified that if the cornice of the building became charged with electricity, and if a person was standing on it and came in contact with the scaffolding, this would establish the conditions for electric shock. On cross-examination, the witness testified that his opinion concerning the most likely source of electricity causing the death as being the appellant’s wires was based upon an assumption that the wires actually contacted the scaffolding or cornice or that some conducting material was inserted between those lines and the scaffolding or cornice and that in the absence of the existence of one or the other, or both, of those conditions, it would be impossible for the defendant’s lines to have caused this accident. He further testified that the maximum distance electricity could jump or arc from the 2400-volt conductor under the conditions existing at the time of the accident was one-fourth inch. He further stated upon cross-examination that there were a considerable number of instances where people have been electrocuted by contact with 110 volts.

As might be expected, the parties are in agreement upon the fundamental rules defining the scope and limitations of the res ipsa loquitur rule. Both parties cited McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641. As was said in Sleater v. John R. Thompson Co., Mo.App., 173 S.W.2d 591, at loc. cit. page 592, these rules as stated in McCloskey are as follows:

“In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instru-mentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.”

We need not consider the presence or absence of (b) or (c) for as this court pointed out in the Sleater case at page 592 [2] of 173 S.W.2d, when discussing (a), “ * * * the accident and its surrounding circumstances must identify the defendant as the wrongdoer whose negligence was the proximate cause of the accident * * It is in this respect that appellant contends and we hold respondent failed to make a case. The unusual result of the factual situation present in this case, when considering the facts in the light in which we must view them, is that the evidence is undisputed that the deceased died of electrocution and that the only electricity that was in use at the time that would kill him was that carried by the appellant’s lines going northwardly from the alley' pole and coming within a foot of the cornice of the building, yet at the same time’the respondent’s own evidence, given by his own expert witness, is that this source of electricity could not have caused the death absent either or both of two conditions. These are the touch of the appellant’s lines against the scaffolding or cornice, or the insertion of some conducting material between the appellant’s lines and the scaffolding or cornice. However, neither of these conditions was shown in the evidence to exist at the time of this accident nor is there even one iota of testimony as to them from which their existence can reasonably be inferred. The nearest that any line came to the scaffolding or cornice was one foot, and there is no evidence that there was a wind or that the line sagged or swayed nor that it in any other manner could move this distance so as to touch the scaffolding or cornice. Moreover, the testimony of the respondent’s expert was that current would not jump from this line to the cornice over this distance, and would not jump more than one-fourth inch. Under these conditions there is no way to reasonably infer that the line touched the scaffolding or cornice. In like manner, the testimony of the brother of decedent was that the decedent had no tools with him as he stood outside the window, nor is there any evidence as to any material being outside the window that could have served as a conductor between the appellant’s lines and the scaffolding or cornice. Accordingly, there is no basis for any reasonable inference that current reached the scaffolding or cornice from the appellant’s lines through some conducting material. The end result is that we are confronted, under the factual situation as we must take it, with a case where we are required to believe from the evidence that the only source of the electricity that could have caused decedent’s death was appellant’s lines, and at the same time the testimony is that same source could not have done so. Under such circumstances, we do not believe the accident and its surrounding circumstances can be said to show or identify the appellant as the wrong-doer whose negligence was the proximate cause of the accident. As has been stated in a recognized text work on the subject, Shearman and Redfield on Negligence, Revised Edition, Vol. I, § 56 at page 149, the rule of res ipsa loquitur relates to the probative force of evidence. The doctrine is not an arbitrary rule, but is rather a common sense appraisal of the probative value of circumstantial evidence and is a rule of reasonable inferences. We do not think there can be any reasonable inference in this case to allow respondent’s theory that appellant’s lines caused decedent’s death, in view of the testimony of respondent’s own expert witness that the lines could not do so absent the existence of other circumstances which are not shown to have existed, or testimony to allow the inference of their existence. Neither can the respondent be heard to say that the jury could disregard that part of her own expert witness’s testimony to the effect that appellant’s lines could not have caused the decedent’s death absent the presence of two factors not shown by the evidence nor arising as a reasonable inference therefrom. Where a party offers testimony of a witness, he vouches for the credibility of such testimony and is bound thereby if it stands uncontradicted by other testimony or by facts from which the jury might draw a contrary inference. Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626, [11, 12] at page 627. See Missouri Digest, Evidence, ^591. Moreover, when the subject is one within the knowledge of experts, undisputed expert testimony which is based on scientific processes, methods, or knowledge is to be accepted as conclusive by the trier of the facts. 32 C.J.S. Evidence § 569, page 399.

It follows that the trial court prejudi-cially erred in overruling appellant’s motion to dismiss, and that the judgment should be reversed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is reversed.

RUDDY, Acting P. J., WOLFE, J., and GEORGE P. ADAMS, Special Judge, concur.

ANDERSON, P. J., and DOERNER, C., not participating.


source: Caselaw Access Project

author: RUDDY, Judge.

license: Public Domain

text:
    Minnie WILLIS, (Plaintiff) Respondent, v. RIVERMINES I.G.A. SUPERMARKET, a Corporation, (Defendant) Appellant.
    No. 30630.
    St. Louis Court of Appeals. Missouri.
    Oct. 17, 1961.
    Motion for Rehearing or for Transfer to Supreme Court Denied Nov. 15, 1961.

      Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for appellant.
    McClintock & Medley, Charles W. Medley, Flat River, for respondent.
   RUDDY, Judge.

This is an action for damages for personal injuries which plaintiff alleges she sustained when she was caused to fall on a parking lot owned and operated by defendant. Upon trial the jury found in favor of plaintiff and assessed her damages at the sum of $2,400. Defendant appeals.

Defendant’s first contention is that plaintiff failed to prove that it was negligent. In support of this contention it claims that the depressed area where plaintiff fell was not an unknown or lurking hazard, but was obvious and had been there for some time and if any danger existed, it should have 'been as well known to plaintiff as to defendant. This point, relied on by defendant, requires a summation of all the evidence favorable to plaintiff.

On April 3, 1959, about 10:30 A.M., plaintiff and her husband went to defendant’s supermarket in Cantwell, Missouri, in their pickup truck. They had traded .at this store a long time. Plaintiff’s husband, who was driving, parked the truck •on a parking lot owned and operated by defendant for its customers’ use in parking automotive vehicles. He parked the truck approximately 15 or 20 feet west of the door to the store. The day was dry and •clear. Plaintiff was wearing her glasses, which she said she needed in order to see where she was walking. She was wearing shoes with low heels. Plaintiff got out on the right side of the truck and walked to the store over the surface of the parking lot. The parking lot had been covered with a material described as a fill from the lead belt. This material had been crushed into one-half inch size and resembled rock. When asked if she watched where she was walking, she answered, “Yeah * * I just got out and walked in the store like anybody else would.” At another place in her testimony when asked a similar question she answered, “Well, I never paid no attention.” She said she saw a few low spots in the parking lot but saw none as big and deep as the one that caused her to fall. She never did see “that hole before.”

Plaintiff entered the store through the door east of where the truck was parked. While in the store she purchased a 5 pound sack of corn meal, a 5 pound sack of flour, some salt bacon, onions and “other stuff.” Having some dried beans at home, she was purchasing the remaining ingredients for her washday dinner, namely, “dried beans and salt bacon and corn bread,” which seems like the makings of a meal having the potential of restoring the lost energy of any tired woman after a day of washing. All of the purchases made by plaintiff were placed in “a big brown sack.” She said she held the sack of groceries in front of her on her left arm and had her “purse in the other arm.” After she left the store she walked directly toward the truck. At a point about 4 feet in front of the truck she stepped “off in a low place” and a rock in the low place caused her to “roll.” She said “I stepped on a rock and I rolled.” Plaintiff fell on her right side and suffered a fracture of the greater tuber-osity of the right humerus together with other injuries. Plaintiff said the hole in which she stepped was “ankle deep,” about one and one-half or two feet in diameter, the sides of which were “sloping.” Plaintiff’s husband saw her fall and described the hole in which she fell as a foot and one-half in diameter. He said the hole had about two inches of chat in it and the top of the chat was two inches below the level of the surrounding terrain. He said the hole had a total depth of 4 inches and the sides were “sloping.” The hole was in front of the truck and was not in the path his wife followed when she went into the store.

The effect of the testimony of four other witnesses for plaintiff was that the parking lot had some small indentations or holes upon it and had one hole a little larger, which was 12 to 15 feet west of the store and in the vicinity of where plaintiff fell. This hole was about “a foot and a half, maybe 2 feet round, * * * about a foot and a half wide,” and was about 3 or 4 inches to 6 inches in depth. The sides of this large hole sloped towards its center. All of the witnesses had seen this large hole in the parking lot 2 or 3 months before plaintiff fell. None of these witnesses saw her fall. This hole remained on the parking lot until it was “black topped” sometime after plaintiff fell. One of the witnesses for plaintiff testified that while the hole could be seen “anybody can walk off in places like that.” Another of plaintiff’s witnesses, when describing the large hole in the area where plaintiff fell, said “there was a hole there that a person could slip and fall and could hurt themselves.”

Lynn Landolt, General Manager of defendant’s stores, called as a witness by defendant, testified that the holes in the parking lot would range from one foot to two feet in diameter and were 2 to 4 inches deep. He said the depth of the holes was “unnoticeable unless you were lookin’ for ’em.” He had seen these holes in the parking lot prior to April 3, 1959.

Arthur T. Morris, Manager of defendant’s store at Cantwell, Missouri, testified to the existence of dips and indentations “all over the lot,” some of which were a foot and one half in length and a foot in width. He admitted there could have been a hole 15 feet west of the store deeper than the others. In connection with this hole, he was asked, “And it was actually kind of hard to tell whether or not there was a hole there when it was dry, wasn’t it?” and he answered, “I would think it would be just looking over the lot.” He indicated this was true because the same type of surface was all over the lot.

The issue asserted by defendant’s first contention presents nothing new insofar as principles of law are concerned. It is the application of the facts to the oft announced rule of law governing the duty of an invitor to an invitee that causes difficulties. Each case, requiring the application of the rule involved in this case, must be determined in the light of the facts of the particular case.

In Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, the court, in discussing the duty owed by the occupier of premises to his business invitee, pointed out that in Dean v. Safeway Stores, Inc., Mo., 300 S.W.2d 431, 432, the court said that the rule as declared and set forth in 2 Restatement Law of Torts is firmly imbedded in the jurisprudence of this state. The rule found in Sec. 343 in the Restatement Law of Torts is as follows:

“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no-reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (1) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm * *

This rule, stated in different language but asserting the same duty of a possessor of land, has been followed in all of the cases cited by both plaintiff and defendant, some of which we cite: Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Wilkins v. Allied Stores of Missouri, supra; Cameron v. Small, Mo., 182 S.W.2d 565.

It is agreed that plaintiff was a business visitor upon the parking lot of defendant at the time she fell. There is no doubt, after a reading of the evidence, that defendant knew of the existence of the hole causing plaintiff to fall and knew of the existence of other holes in the parking lot. Plaintiff’s witnesses testified that the holes, including the one that caused plaintiff to fall, were on the lot two to three months. Lynn Landolt, General Manager of defendant’s store, had seen these holes prior to the date of plaintiff’s fall. Therefore, the evidence was such from which the jury could find that defendant knew, or by the exercise of reasonable care could have discovered, the hole that caused plaintiff’s fall.

Also, we think the jury could have found that defendant, knowing of the hole should have realized that the existence of the hole created a danger to its customers, for it knew, as its witnesses testified, that ■the depth of the holes was “unnoticeable unless you were lookin’ for ’em” and knew what its manager of the Cantwell store knew, that it would be hard to tell that the hole was there when the lot was dry. He said this was so because the chat which was in the holes and covered the surface of the lot was the same and made the holes hard to see when you would be looking “over the lot.” We infer from this testimony that the manager ■meant the color of the chat was the same in the holes and on the surface and this similarity in color made the holes hard to see. Defendant knew, or could have been ■reasonably expected to know, that some customers leaving its store and traversing the parking lot would be carrying large sacks of groceries and when carried in front by the customer would, to a substantial degree, obscure the forward vision •of the customer. Defendant knew, or by the exercise of reasonable care could have known, that the hole was four to six inches •deep and that the sides sloped toward the •center. We held in Taylor v. Hitt, Mo'. App., 342 S.W.2d 489, that evidence of the existence of a 15-inch square depression two to four inches deep in a basement floor, which depression sloped toward a six inch drain tile was sufficient to submit to the jury the question of whether or not the defendant could have reasonably ■anticipated injury to plaintiff by reason of the contour of the drain when used in the manner intended. We so held despite plaintiff’s admission that she knew of the depression and that it was obvious to the eye.

We think the evidence was sufficient in the instant case from which a jury could find that defendant had reason to believe that the hole created a danger to its customers and that plaintiff would not discover the hole or realize the risk involved in walking over the lot.

Defendant strongly urges that the facts testified to by plaintiff and her witnesses indicate that the danger which might confront plaintiff in walking across the uneven surface of the parking lot was so open and obvious that the trial court should not have imposed any liability upon it and should have directed a verdict in its favor. In this connection defendant calls our attention to the testimony of plaintiff when she said that she had seen a few low spots in the parking lot and admitted she had traded with the store for a long time. Because of this testimony defendant contends that plaintiff cannot now be heard to say that she was unaware of the danger. Defendant also contends in this same connection that plaintiff’s testimony shows that she was not paying any attention to where she was putting her feet. While plaintiff’s testimony showed she was aware of a few low spots in the parking lot, her testimony also showed that she saw none as big and as deep as the one that caused her to fall, adding that she had never seen “that hole before.” The manager of defendant’s store at Cantwell, Missouri, admitted there could have been a hole 15 feet west of the store deeper than the others. It is true that at one place in her testimony plaintiff said that she paid no attention to where she was walking, but we think this testimony must be considered with her other testimony wherein she said that she did watch where she was walking, explaining that she walked into the store “like anybody else would.” In the case of Long v. F. W. Woolworth Co., Mo., 159 S.W.2d 619, 624, the court, quoting from State ex rel. Elliott’s Department Store Co. v. Haid et al., 330 Mo. 959, 965, 51 S.W.2d 1015, 1017, said:

“ ‘It is true that the law requires a person to make ordinary use of his faculties to observe and avoid danger. But it is equally true that one is not required to look out for danger where there is no reason to apprehend any. It cannot be said, as a matter of law, that the plaintiff here, in the circumstances in which she was placed, was not making ordinary use of her faculties — such, use as an ordinarily prudent person would have made — at the time she fell.’ ”

In the instant case plaintiff did not know of this big hole. She had never seen it before. Her husband testified that she did not return to the truck over the same path she used when entering the store. We think the jury could have found that plaintiff did look in the manner of the ordinary person, as plaintiff said, “like anybody else would.” We too must say that when consideration is given to the circumstances surrounding plaintiff, we cannot say, as a matter of law, that plaintiff in the respects complained of by defendant was not exercising the care of an ordinarily prudent person. The contention of defendant that plaintiff failed to prove that it was negligent must be overruled.

In the course of the trial Collene Lawson, a witness for defendant and an employee in its store, testified that she took care of plaintiff’s grocery order on the day plaintiff fell and that plaintiff “bought a pound of beans and a package of green onions and some hog jowl” which the witness placed in a twenty pound bag. She said the items purchased by plaintiff would not weigh more than 3(4 pounds. Witness testified further that plaintiff “came back to the store after she (plaintiff) went to the doctor” and that plaintiff told her the shoes she had on “she couldn’t walk in ’em.” Witness said plaintiff was wearing a pair of wedgies.

Plaintiff was called in rebuttal and testified that she purchased the items we summarized earlier in this opinion, which items were greater in number and weight than those testified to by Collene Lawson. Thereafter, the following questions were asked, answers given and objections made:

“Q. Now, Mrs. Willis, when was the next time you were in the store after that? A. Well, Mr. Medley, I didn’t go back in the store for two, three days after that because I walked the floor and screamed with my shoulder all evening that evening.
“By Mr. Weier: If the Court please, I want to object to that now; that’s highly prejudicial and used merely to inflame the minds of the Jury and I’d like to ask the Jury be discharged on account of the prejudicial statements made by the witness.
“By the Court: The request is denied. Mrs. Willis, just answer the questions that are asked.
“By Mr. Medley: You were not back in the store for two, three days? A. No, I sure wasn’t, no, sir.
“Q. Did you ever tell Mrs. Lawson that you fell because you couldn’t stand up on your shoes or anything of that nature? A. No. If God would strike me dead in this chair I didn’t tell her that.
“By the Court: Now, wait, wait, lady, if you please. Just answer the question, please.
“Bjj- Mr. Weier: I want to object to the outburst of the witness from the witness stand with the excessive emotion displayed by the witness and ask the Jury be discharged because of the prejudicial effect that it may have upon the minds of the Jury.
“By the Court: The request will be denied. Now, Mrs. Willis, I must caution you again now, merely answer the questions asked, no more than that.”

Addressing our remarks to the testimony of plaintiff that forms the basis of defendant’s first objection and request for a discharge of the jury, we think the trial court was in better position to determine whether or not the statement complained of was prejudicial. In justification of the court’s action it should be pointed out that this rebuttal testimony was the result of an attack on plaintiff’s veracity, and was occasioned by the testimony of defendant’s -witness, Collene Lawson, who testified that plaintiff came back to the store after she went to the doctor. This could be understood to mean that plaintiff returned to the store the day she fell. Plaintiff’s rebuttal testimony was a denial of defendant’s evidence in this regard and an explanation of why she could not have returned to the store on the day she fell.

What we have said concerning the first objection and request for a discharge of the jury is applicable to defendant’s next request for a discharge of the jury. The testimony of plaintiff which formed the basis of defendant’s request was a strong effort on plaintiff’s part to preserve (the integrity of her contention that she had not returned to the store the day she fell and that she did not tell Collene Lawson she could not walk in the shoes she was wearing the day she fell. It might have been better for plaintiff to refute Collene Lawson’s testimony in less emphatic language, but we agree with the trial judge that it is unlikely this testimony prejudiced the jury against defendant.

In the course of the cross examination of plaintiff, following her direct examination, she was asked if she remembered signing a statement in connection with what happened at the time of her fall. She admitted signing the statement but denied that she made some of the answers that were placed in the statement by the scrivener. It is apparent from the record the statement was taken by a representative of the defendant. In her rebuttal testimony she was asked to describe “the man that came down to take this statement” and she answered, “He was a little short — I guess he was — he looked like a little Jewish fellow.” Thereafter, defendant’s counsel objected to plaintiff’s answer and asked the court to instruct the jury to disregard it. The court complied with this request. Defendant’s counsel further moved that the jury be discharged. This request was denied by the court. Denial of same is now charged by defendant as error.

Defendant characterizes plaintiff’s answer as an effort to inject a religious issue entirely foreign to the issues before the jury. We do not so characterize the remark. We feel it was an effort upon the part of plaintiff to describe the person and was used simply as a descriptive term. As pointed out in plaintiff’s brief, she may very well have said he was a little Irishman or a big Swede, with no intention of injecting either religious or racial prejudice. No bad faith is evident in the use of this description. We think the court’s action in denying the request for a discharge of the jury was correct.

Defendant complains about portions of the closing argument of plaintiff’s attorney. In the course of his argument plaintiff’s attorney told the jury: “Mrs. Willis is a poor woman. She has to do her own washing. She has to do her own mopping or have her husband do it.” There followed an objection by defendant’s attorney to the statement that Mrs. Willis is a poor woman. The objection was followed by a withdrawal of the statement by plaintiff’s attorney. Thereupon, defendant’s attorney asked the court to discharge the jury. This request was denied. There was no request that the jury be instructed to disregard the statement made and no request that plaintiff’s attorney be reprimanded. We think this complaint of defendant should be considered with another complaint made by defendant concerning the closing argument of plaintiff’s attorney.

After telling the jury that plaintiff was “ * * * not going to hire a maid or she hasn’t hired a maid to come in to clean her house. She just has to get it done the best way she can and she can’t do it herself. How much is she entitled to for not being able to mop her floor, not being able to completely dress herself, not being able to properly do her washing and other housework lifting pots and pans, how much is it worth?” Plaintiff’s attorney then told the jury that plaintiff was going to have trouble for eighteen years taking care of the duties he enumerated. Plaintiff’s attorney then followed with this argument, of which defendant now complains: “I believe if you will figure up eighteen years at three hundred sixty-five days per year it comes out six thousand five hundred and seventy days and we believe that this lady should be entitled to two dollars per day for this injury. We don’t think that that is asking too much. If you think two dollars a day is too much figure up in your own mind what you think would be a proper amount and whatever you bring in, if you feel it’s proper, I’m sure that Mrs. Willis will feel it’s proper. * * * ” Defendant’s attorney objected “to the argument of counsel with .regard to two dollars per day for the number of days that he has figured here as being inflammatory and improper and contrary to the law * * This objection was followed with a request for discharge of the jury. The request was denied.

The medical evidence showed that plaintiff suffered an avulsion type of fracture of the greater tuberosity of the right humerus with a 20% loss of function of the right arm which was described as being permanent. Other evidence showed plaintiff’s life expectancy to be 17.92 years.

We shall first address our discussion to that part of the argument complained of where the jury was told that plaintiff should be entitled to $2.00 per day because of her decreased ability to take care of certain duties due to her injury. Defend-' ant contends this calls on the jury to use a mathematical formula to arrive at its verdict and that such an appeal has been condemned by the courts of this state, citing the case of Faught v. Washam, Mo., 329 S.W.2d 588. The mathematical formula condemned in the case cited by defendant called upon the jury to employ such a formula in assessing plaintiff’s damages for pain and suffering. The jurors were asked to put themselves in plaintiff’s place in assessing his damages for pain and suffering. That is not what the jury was asked to employ or do in this case. In the Faught case, supra, the court said that an appeal, such as was made to the jurors in that case, standing alone, does not always constitute reversible error where there is no complaint on appeal that the verdict was excessive. In the instant appeal defendant presents no point contending that the verdict was excessive. This part of the argument, complained of by defendant, could have affected the issue of damages only and if we assume the court erred in its ruling it was harmless. Anderson v. Bell, Mo., 303 S.W.2d 93, 100, and Millard v. St. Louis Public Service Company, Mo.App., 330 S.W.2d 147, 155. However, such a point would be ineffective, if relied on, because we think the amount awarded as damages was modest. Also, the amount awarded by the jury is a clear indication that the jury was not prejudiced by the statement of plaintiff’s attorney which forms the basis of defendant’s complaint.

The statement by plaintiff’s attorney that plaintiff “is a poor woman,” was unfortunate, but we do not think it was intended as an appeal to the jury to find in favor of the plaintiff because of her lack of worldly goods. This becomes more evident when we consider the argument that followed which pointed to plaintiff’s inability to do her house chores and to the possible need of getting “it done the best way she can.” We do not mean to approve what was said in this portion of the argument, but we do not believe it was prejudicial. We are not permitted to reverse a judgment, unless we believe that error was committed by the trial court against defendant, materially affecting the merits of the case. V.A.M.R. Civil Rule 83.13(b).

Supplementing what we have said in answer to defendant’s complaints about portions of the closing argument made by plaintiff’s attorney, we repeat what we said in the case of Rohlfing v. State Farm Fire and Casualty Co. et al., 349 S.W.2d 472, 478:

“It is only in unusual cases that the court is justified in resorting to the drastic remedy of discharging the jury on account of improper argument. (Citing case.) We said in Shelley v. St. Louis Public Service Company, Mo.App., 279 S.W.2d 182, loe. cit. 187: ‘The rule is firmly established in Missouri that the trial judge, who has the opportunity of hearing the lawyer present his client’s cause to the jury, is vested with wide discretion in ruling on the propriety of the argument with respect to the question of prejudice, and unless it appears that the trial judge has clearly abused his discretion, we should defer to his judgment. (Citing cases.)’ ”

We do not think the trial judge in the instant case abused his discretion in the matters complained of by defendant.

In the final point relied on by defendant it contends that the court erred in giving Instruction No. 1 at the request of plaintiff. In this connection defendant asserts two points, both of which are essentially the same. It contends that the instruction fails to set out that before the jury could find defendant liable, it must also find that plaintiff did not know, or in the exercise of ordinary care would not have known of the hole in the parking lot where she fell. In answering this contention, it should be observed that plaintiff’s theory of recovery was defendant’s failure to repair a dangerous and unsafe condition, which it knew or should have known existed. We think it is a sufficient answer to defendant’s contention to point out that plaintiff’s instruction, after hypothesizing the facts from which the jury could find that plaintiff was negligent in not exercising ordinary care to keep its parking lot in a reasonably safe condition for use by its customers, further required the jury to find, before it could find in favor of plaintiff, that plaintiff was not contributorily negligent as submitted in other instructions. Instruction No. 3 told the jury that if plaintiff saw, or in the exercise of ordinary care could have seen the hole in the parking lot, and that by stepping therein, she failed to exe-rcise the care and caution which an ordinarily prudent person would have exercised under the circumstances at the said time and place and that her failure to exercise such care contributed to cause her to fall, then the jury was instructed to find for the defendant. We think this instruction sufficiently submits to the jury the issue of whether plaintiff exercised ordinary care in discovering and knowing of the existence of the hole.

In the case of Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, loc. cit. 500, the court, in reaching a conclusion as to a general rule applicable to verdict-directing instructions in negligence cases, said inter alia: “ * * * then a verdict-directing instruction or instructions given in his (plaintiff’s) behalf should hypothesize, either by recital or by reference to other instructions, the facts essential in law to support the verdict.” (Parenthesis and emphasis ours.)

We think Instruction No. 1 incorporated by .reference the issue of whether or not plaintiff knew of the existence of the hole, or by the exercise of ordinary care could have discovered and seen the hole. When the instructions are considered in their entirety and as a whole, we think the required issues to be determind by the jury were adequately submitted.

Finding no error the judgment of the trial court is affirmed.

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


text:
    Percy SLOSS, (Plaintiff) Respondent, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, (Defendant) Appellant.
    No. 30687.
    St. Louis Court of Appeals. Missouri.
    Oct. 17, 1961.
    McClintock & Medley, E. L. McClintock, Jr., Flat River, for appellant.
    Robert L. Carr, Potosí, for respondent.
   RUDDY, Judge.

This is an action to recover a fire loss under an alleged policy of insurance. The trial before a jury resulted in a verdict for plaintiff in the amount of $4,500. Defendant appealed.

In his petition plaintiff alleged that on or about March 18, 1958, in consideration of the payment of a premium of $20 defendant issued its policy of insurance in writing and thereby insured plaintiff against any loss or damage by fire to the amount of $5,000 upon his dwelling house located at and numbered as 914 Dunklin Street in the City of Potosí, Missouri.

It was further alleged in said petition that said dwelling house was damaged and destroyed by fire on October 4, 1958, while Policy No. 24F-70628 was in force and that said policy of fire insurance was destroyed in the fire; that after due notice and proof of the fire and loss to the defendant, said defendant has paid no part of the loss.

Defendant in its answer denied that Policy 24F-70628 insured 'a dwelling house located at 914 Dunklin in Potosi, Missouri.

At the trial plaintiff testified that he then lived at 906 Dunklin Street, Potosi, Missouri. On March 18, 1958, he was the owner of two houses on Dunklin Street, one numbered 906 situated on part of Lot 6 Block One of Coleman’s Second Addition to Potosi, Missouri, and the other numbered 914 situated on Lots 6 and 7 of Block Two of Coleman’s Third Addition in Po-tosi, Missouri.

In March of 1958 plaintiff lived at 914 Dunklin Street. Both houses were insured through Coleman and Whitehead, insurance brokers. In the course of his direct examination plaintiff was asked, “When did the insurance on 906 Dunklin Street expire?” and he answered, “March 18.” Thereafter, plaintiff’s attention was direct! ed to the house at 914 Dunklin Street and he was asked when the insurance expired on that house and he answered, “March 18.” He then said that the insurance on 906 Dunklin Street expired October 16, 1958.

Coleman and Whitehead Agency sent a notice to plaintiff advising him that “a certain policy numbered so and so was expiring.” It contained no description of the property insured. Plaintiff took this notice to Mrs. Lottie Breckenridge in her office; on March 18, 1958. No one, other than plaintiff and Mrs. Breckenridge was present on the occasion.

Plaintiff paid Mrs. Breckenridge $20 which he said was “for the policy.” He said that he had several other policies of insurance placed with Mrs. Breckenridge’s company, “the Farmers Mutual Automobile Insurance Company,” prior to March 18, 1958. These policies covered other prop-' erties owned by plaintiff. Some of these policies were kept in a trunk and some in a chest of drawers at plaintiff’s residence.

Mrs. Breckenridge had talked to plaintiff on different occasions about writing the insurance on 914 Dunklin Street. Plaintiff described the conversation that took place on March 18, 1958, in the following manner:

“Q. Did you describe the property to be insured? A. I told her where I lived, 914 Dunklin—
“Mr. McClintock: Just a minute. That question can be answered yes or no.
“Q. Did you describe the property? A. That is the only way.
“Q. How ? A. She had been wanting the house at 914 Dunklin.
“Q. Did Mrs. Breckenridge make any statement about the description?
A. No, she didn’t ask me no more. She pushed things back on her desk and told me she would fix it up later for me.”

On cross-examination plaintiff testified he told Mrs. Breckenridge he wanted 914 Dunklin insured. When asked if there was any discussion about 906 Dunklin, plaintiff answered, “I don’t remember.” Plaintiff said he told Mrs. Breckenridge to change the old policy which insured the house for $4,000 and the contents for $1,000 to $5,000 insurance on the house and to omit the insurance on the contents.

Plaintiff further testified that Mrs. Breckenridge had him sign an application “in blank.” He did not see the application after it “was filled in,” and did not know what was in the application when it was forwarded to defendant. A couple of weeks later plaintiff received a policy of insurance from Mrs. Breckenridge at his home at 914 Dunklin Street. He said that Mrs. Breckenridge “told me she had my policy.” He 'then said: “I pulled my policy out of the envelope. It wasn’t sealed, just looked in there, and I just happened to notice the heading. It said, ‘Percy Sloss, Insured, 914 Dunklin, for $5000.’ ” On cross-examination he said Mrs. Breckenridge told him the policy insured 914 Dunklin, but admitted he did not read the contents of the inside of the policy. After pulling out the policy and reading the heading he went into the house and placed the policy with some letters on a chest of drawers. When the house burned the policy burned with the letters. When plaintiff was asked if some ■of the other policies were burned in the ■fire, he answered, “No, I don’t know whether there was any of them burned up besides this one or not.”

Plaintiff at another place in his direct ■examination testified that Mrs. Breckenridge had spoken to him several times about the insurance on his home. He was again asked, “Did she say anything to you about the description of the house to be insured?” and he answered, “The only description is what I said while ago, the house that I lived in at 914 Dunklin, and she knew well where it was for she had been there several ■different times.” After plaintiff put the policy away on the day that Mrs. Breckenridge delivered it, he never saw it again.

The house at 914 Dunklin Street was burned on October 4, 1958. Plaintiff said he called Mrs. Breckenridge and she came to the fire. When he was asked if she said anything to him about the insurance on the property, he answered, “Yes, she told me the reason she didn’t get there any sooner she was looking over her records and she didn’t find where she had it.” On cross-examination he said she told him the policy did not cover 914 Dunklin, stating that she said, “she got the wrong house.”

He further said that Mrs. Breckenridge and plaintiff’s son searched in plaintiff’s trunk and around the house to see if they ■could find the policy. He said, “We had a little argument there.” Further, in talking about the insurance policy, he said, ’“When she said she didn’t know whether she had, she couldn’t find any trace of it, I told her, at that time, and she told my son and me, ‘Yes, I do, I remember it.’ ” Thereafter, she went back to her office with plaintiff’s son to see if she could find any trace of the policy.

Plaintiff was asked, “Q. She said she remembered what ?” and he answered, “Remembered me telling her what I did about insuring the house for $5000 instead of $4000 and to leave the furniture go. * * Q. Did she say anything to you then and there about what house was insured? A. Yes, she said she had the other house insured instead of that one.”

On a later date when plaintiff discussed the insurance policy and the property insured therein with Mrs. Breckenridge, he said the following conversation took place:

“She said to me these words, she said, ‘Well, Mr. Sloss, I believe you are just mistaken.’ I said, ‘How do you figure it that way?’ She said, ‘Well, if you had read your policy you could have come back to me and had it corrected.’ I said, ‘Well, listen, I paid you to do it right in the first place and I expected it to be right.’
“Q. Did you ask her to notify the company of your loss? A. Yes, I did.”

Later an agent or adjuster for defendant company looked over the property. Plaintiff was asked if he asked the adjuster to pay for the fire loss and he answered, “No, I didn’t ask him nothing about that.”

Plaintiff further testified that immediately before the fire on October 4, 1958, his residence at 914 Dunklin was worth $5,500 and immediately after the fire occurred he placed its value at $500 or maybe $1,000. He described the nature of the damage to the house caused by the fire and when asked if he obtained prices or bids for the cost of repairs, he answered, “Some, not very much.” He estimated the price of material for repairing the property would be $2,500 and he had an idea it would cost around $2,000 for the labor. He based this idea on talks he had with one or two carpenters. He further testified that he owned the property at 906 Dunklin Street which was insured through Coleman-Whitehead Insurance Company in the sum of $5,000.

Plaintiff admitted that the premium notices on all his policies with defendant were sent to 914 Dunklin and he admitted that the outside “heading” of the other policies, covering other properties, all “said 914 Dunklin on them too,” the same as the one he described receiving from Mrs. Breckenridge. He said this address appearing below his name on the outside of the policy made him “think” he had insurance on 914 Dunklin. In this same connection, he said he thought all the policies he received, showing 914 Dunklin on the outside of the policy, insured said property. At another place in his testimony he admitted all of the policies showing 914 Dunklin on the outside did not insure 914 Dunklin. He did not open the policy and read the contents on the inside at any time. He testified that 914 Dunklin had a sheet iron roof and 906 had composition shingles on the roof.

Plaintiff identified defendant’s Exhibit 3, which was a duplicate of policy No. 24F-70628, issued by defendant to be effective March 18, 1958, and insured a “family dwelling, situated at 906 Dunklin” followed by a legal description which plaintiff thought was that of 906 Dunklin.

Percy Lynn Sloss, son of plaintiff, testified that Mrs. Breckenridge said at the scene of the fire that she had insured the house that burned

Plaintiff in his case offered and introduced in evidence a fire insurance policy issued by the New Amsterdam Casualty Company covering 914 Dunklin Street which expired on March 18, 1958. Also, offered in evidence, was a policy issued by the Home Insurance Company covering 906 Dunklin which expired October 16, 1958.

In defendant’s case the deposition of Lottie Breckenridge was introduced and admitted in evidence. She testified that on March 18, 1958, and prior thereto, she was in the insurance business in Potosí, Missouri, and served as agent for defendant. She had dealings with plaintiff over a period of 2Y2 years, stating she had insured “some houses for him.” On March 18, 1958, plaintiff came to her office and told her he had another house to be insured and was going to let her write the insurance through defendant company because it was cheaper. He told witness that he had 906 and 914 Dunklin insured with the Coleman and Whitehead Agency and the fire insurance on one of them was expiring. He was not sure which house “the insurance was due on.” Plaintiff finally told her that the fire insurance on 906 Dunklin was expiring. Plaintiff brought with him to the office of Lottie Breckenridge a “slip of paper from the other agents” which contained a policy number but no property description. This was a notice of expiration to plaintiff from Coleman and Whitehead Agency. Lottie Breckenridge prepared an application for fire insurance coverage in defendant company on 906 Dunklin Street. In response to questions put to plaintiff by her, he told her the house at 906 Dunklin had a composition roof and was of frame construction. She said these answers were in accord with her own knowledge of 906 Dunklin. She knew that 914 Dunklin had a tin roof. Plaintiff could not give witness the legal description of 906 Dunklin and she then told plaintiff she would obtain it from the courthouse.

Lottie Breckenridge identified defendant’s Exhibit 1 as the original application signed by plaintiff in her presence. The application showed 906 Dunklin as the property insured. She said the application was mailed to defendant on March 18, 1958. Thereafter, a policy was issued pursuant to the terms of the application and witness delivered said policy to plaintiff a week or ten days after the application was signed.

Lottie Breckenridge further testified that subsequent to March 18, 1958, she wrote fire insurance for plaintiff through defendant company on two other houses, at which time she reminded plaintiff that defendant company carried the fire insurance on 906 Dunklin. She said she never did write any insurance coverage on 914 Dunklin and had never been requested to' do so by plaintiff.

On October 4, 1958, the date of the fire, a boy sent by plaintiff told her about the fire. Thereafter, in her conversations with plaintiff she' told him and his son that she did not have 914 Dunklin insured. She said that on one occasion plaintiff “tried to get me to say that I had copied the wrong description, so the company would pay off.” She stated that plaintiff said that he was going to stick to his story that she insured 914 Dunklin and she again told him that she had not insured that property. She "stated she pointed out to plaintiff that the application showed the type of roof on the property insured was a composition roof which fitted that of 906 Dunklin Street, whereas the roof on the house that burned at 914 Dunklin was made of tin.

Leo Stock, witness for defendant, testified that he was an employee of defendant and it was his duty to approve applications submitted for policies. He explained the procedure that is followed in connection with the preparation and issuance of a policy after an application is received. After a policy is prepared it is then sent to the agent for her counter signature and delivery to the insured. He stated that an original and copies are made when the policy is typed. The original is sent to the agent for delivery to the insured and a copy is sent to the agent for her files. A copy is retained in the defendant’s files. (Defendant’s Exhibit 4.) Copies are identified by policy numbers. Defendant’s Exhibit 1 was shown to the witness and he identified it as the original application received at the home office and signed by plaintiff. The 'application showed that policy 24F-70628 was issued pursuant to the application. Witness also identified defendant’s Exhibit 4 as the first duplicate of the copy that was issued to the plaintiff and had remained in defendant’s files. The number of the policy is printed on the original and first duplicate by the printer when printing the policy form.

Stock testified that the number of the first duplicate corresponded to the number printed on the original policy delivered to plaintiff and was the same number that appears on the application previously identified by the- witness. Defendant’s Exhibits 1 and 4 wére offered and admitted in evidence. The property described in both exhibits was 906 Dunklin Street.

Defendant makes two principal contentions. (1) Plaintiff failed to prove by substantial evidence that a policy of insurance covering 914 Dunklin was in existence and, therefore, plaintiff failed to establish a prima facie case. (2) If plaintiff did make a submissible case by oral testimony on his theory of the case, his prima facie case was clearly met and destroyed by the undisputed documentary evidence introduced by defendant, which defendant says included the original application signed by plaintiff and a copy of the original policy issued on property at 906 Dunklin.

Before considering the contentions advanced by defendant, we deem it advisable to define precisely the theory under which plaintiff sought recovery as disclosed by his petition and the instructions to the jury. Plaintiff, in his petition, alleges that defendant, “made its policy of insurance in writing, and thereby insured” plaintiff “against any loss or damage by fire in the amount of Five Thousand Dollars ($5000.-00) upon his dwelling house located at and numbered as 914 Dunklin, * *

Plaintiff further alleged “that said policy of insurance in writing was numbered 24F-70628.” Thereafter, plaintiff pleaded the damage by fire of said dwelling house and defendant’s refusal to pay the amount due pursuant to the terms of the policy.

Plaintiff’s principal instruction told the jury to find the issues in his favor if the jury found and believed from the evidence that a “contract and policy of insurance was issued to the plaintiff by the defendant on March 18, 1958, for a valuable consideration, and that said contract and policy of insurance was on and covered the plaintiff’s house mentioned in evidence as located at 914 Dunklin Street, in the City of Potosi, Missouri, * * * and if you do further find and believe from the evidence in this case that said contract and policy of insurance was in force and effect on October 4, 1958, insuring and covering plaintiff’s house known as and numbered 914 Dunklin Street in the City of Potosi, Missouri, and if you further find that on October 4, 1958, said house was damaged by fire, then you will find the issues in favor of the plaintiff, Percy Sloss.”

Defendant in a converse instruction told the jury that “if you find from the evidence that defendant did not at any time prior to the fire in question, issue a policy of insurance on the house located at 914 Dunklin Avenue in Potosi, Missouri, your verdict must be for the defendant.”

It is clear from a reading of the allegations of the petition and plaintiff’s instruction to the jury that he seeks recovery on the theory that defendant had made and issued its contract and policy of insurance, wherein it insured the dwelling house of plaintiff located at 914 Dunklin Street, Po-tosi, Missouri, and that said contract of insurance was in existence and in effect on the date of the fire.

Plaintiff in his testimony insisted that he told defendant’s agent he wanted a fire insurance policy on 914 Dunklin Street. However, it is obvious from the pleadings and instructions that plaintiff was not seeking a reformation of an insurance policy because it was not in accord with the verbal instructions of plaintiff as to the property to he insured when plaintiff applied for the fire insurance coverage on March 18, 1958. Of course, such relief, equitable in nature, could not be granted by a jury. In his petition and instructions plaintiff did not claim any mutual mistake and, as we said is not seeking reformation of an insurance contract, but bases his cause of action upon the fact that defendant issued a fire insurance policy that insured 914 Dunklin Street and that such a policy in that form existed at the time of the fire.

Nor can we see how plaintiff could contend there was any estoppel on the theory that if an error was made, it was the error of defendant’s agent and, therefore, defendant would be estopped from contending that the policy covered property other than that applied for according to plaintiff’s testimony. Plaintiff cannot rely on this theory of recovery for the obvious reason that the jury was never called upon to resolve the conflict between the testimony of plaintiff and that of Lottie Breckenridge on what was said when plaintiff applied for the insurance on March 18, 1958.

We are not ruling that such a plea of. estoppel was available to plaintiff. We merely point out that the facts which might form the basis for such theory were never pleaded or presented to the jury for determination.

It is sufficient to say that plaintiff cannot recover upon a theory of the case not consistent with that upon which his petition and instructions ■ proceed and this is true even if his evidence might permit recovery on another theory.

The decisive question,, therefore, is whether the evidence was sufficient from, which a jury could find that defendant made and issued a policy of insurance, wherein it insured plaintiff against fire loss or damage to property known as 914 Dunk- ■ lin Street and that such a contract and policy of insurance was in effect on the date of the fire loss.

That a policy of fire insurance was made and issued by defendant and delivered to plaintiff is not in controversy. The only controversy, as gleaned from the pleadings, instructions and evidence, was the address of the property protected by said policy. It was plaintiff’s burden to prove that defendant issued and delivered to him a policy of insurance covering 914 Dunklin Street, Potosí, Missouri. We think plaintiff failed to sustain his burden.

Because of the need to reverse the lower court’s judgment, we have, as no doubt has been noted by the reader, related in somewhat extended form the testimony and evidence offered in the case. However extensive may have been our summation of the testimony and evidence, it will not take extended discussion to demonstrate that plaintiff failed to show that the policy he received covered 914 Dunklin. Under plaintiff’s theory of recovery, as we have stated it, we can forget about plaintiff’s testimony as to what was said when he applied for insurance on March 18, 1958.

It will be remembered that plaintiff testified that the policy he received from Lottie Breckenridge was destroyed in the fire. The only testimony by plaintiff involving the delivery and receipt by him of an insurance policy was that Lottie Breckenridge delivered a policy to plaintiff’s home at 914 Dunklin Street, at which time she told him that “she had my policy.” This was the only occasion when plaintiff made any attempt to determine the nature, extent and coverage of the policy delivered to him by Lottie Breckenridge. The attempt that he made was wholly insufficient to acquaint him with the address of the property covered by the policy of insurance delivered. It will be recalled that he testified that he pulled the policy out of the envelope it was in and that he merely looked at the heading which contained the following “Percy Sloss, insured, 914 Dunklin for $5000.” After pulling the policy out of the envelope and merely reading the heading of same, he took the policy and placed it with some letters in a chest of drawers. He testified that after he put the policy away on this occasion, he never saw it again. He admitted that he never did read the contents on the inside of the policy, which contents would have informed him as to the property insured. Plaintiff admitted that the outside “heading” of other policies of insurance received by him covering properties other than 914 Dunklin Street “said 914 Dunklin on them too.” From this we infer that plaintiff meant that the outside heading on policies covering properties other than 914 Dunklin Street were the same as the heading on the policy he received on the day in question from Lottie Breckenridge. His attempt to excuse his failure to read the policy by saying that the outside heading, as described by him, made him “think” he had insurance on 914 Dunklin Street was wholly insufficient to show that the policy he received, on the occasion mentioned, covered 914 Dunklin Street in Potosí, Missouri.

If we were to assume that plaintiff made a submissible case, nevertheless, it is clear to us that such a prima facie case, if made, was completely destroyed by the documentary evidence introduced in defendant’s case. The rule is that a directed verdict should be given .when a prima facie case has been completely destroyed by un-impeached and uncontradicted documentary evidence. Darlington Lumber Co. v. Missouri Pacific R. Co., 243 Mo. 224, 147 S.W. 1052; Citizens Bank of Liberty v. Thompson, 234 Mo.App. 448, 132 S.W.2d 700; Yarber v. Connecticut Fire Ins. Co., Mo. App., 10 S.W.2d 957; Kazee v. Kansas City Life Ins. Co., Mo.App., 217 S.W. 339.

Opposed to plaintiff’s oral testimony was the documentary evidence introduced by defendant. Defendant’s Exhibit 1 was the original application for insurance which plaintiff admitted he signed. This application was sent to the defendant, Insurance Company, and showed the property insured as 906 Dunklin Street. We are mindful that plaintiff testified that he asked Lottie Breckenridge to insure 914 Dunklin and that she testified plaintiff asked her to insure 906 Dunklin. As we said before, we are not concerned with this conflict in the testimony of these two witnesses, inasmuch as plaintiff’s adopted theory of recovery did not submit this issue to the jury for determination. The significance of this document under plaintiff’s theory of recovery is that it is undisputed that the application shows 906 Dunklin as the property to be insured and it was admitted by plaintiff that he signed the application.

Also, it is undisputed that Defendant’s Exhibit 1 was the basis for the making and issuing by defendant of Policy No. 24F-70628. Plaintiff admits receiving a policy of insurance which he identified and described in his petition as bearing No. 24F-70628.

Defendant’s witness, Leo Stock, identified Defendant’s Exhibit 4 as the first duplicate of the policy that was issued to plaintiff and that it was prepared simultaneously with the original policy pursuant to plaintiff’s application. Defendant’s Exhibit 4 bore No. 24F-70628, the same number described in plaintiff’s petition. It is undisputed that Defendant’s Exhibit 4, a copy of the original policy delivered to plaintiff, shows 906 Dunklin Street as the property insured. The authenticity of 'these two documents and the property insured in same is un-contradicted. We agree that defendant’s agent may have misunderstood plaintiff at the time of their conversation on March 18, 1958. On the other hand, plaintiff may have misstated the address of the property to be insured. Despite this conjecture on our part as to the possibilities of what might have been said, the facts remain, as defendant contends, that both the application and the policy described the property insured as 906 Dunklin Street and not 914 Dunklin Street. These two documents, un-impeached and uncontradicted, destroyed plaintiff’s prima facie case, if any.

Plaintiff having adopted Policy No. 24F-70628 as the foundation of his action, cannot now be heard, pnder his theory of recovery, to deny its contents. The trial court should have directed a verdict for defendant.

The judgment of the lower court should be reversed. It is so ordered.

ANDERSON, P. J., and ELGIN T. FULLER, Special Judge, concur.


author: CLAY, Commissioner.

text:
    Hoyt R. JONES, Administrator of the Estate of Lynda Scholes, et al., Appellants, v. F. B. MARTIN et al., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1961.
    Rehearing Denied Nov. 22, 1961.
    Robbins & Cross, Mayfield, for appellants.
    Roberts & Parham, Mayfield, M. C. Anderson, Wickliffe, for appellees.
   CLAY, Commissioner.

This suit was brought against members of a law partnership for a declaration of rights and for various kinds of relief. The circuit judge dismissed the complaint on two grounds, one of which was it failed to state a claim upon which relief could be granted.

The principal purpose of the suit was to have it adjudged that (1) Flavious B. Martin, then Commonwealth’s Attorney for the First Judicial District, was disqualified to act for the Commonwealth in the prosecution of criminal charges against one Alder-dice, and (2) he and his law partners were disqualified to defend Alderdice in certain civil suits arising out of an automobile accident brought against the latter.

While the appeal was pending Mr. Martin died (June 25, 1959). Subsequently a motion was made by appellees to dismiss the appeal as moot because of Mr. Martin’s death. This motion was overruled but the question raised therein has been reconsidered upon final submission of the case.

The only controversy in this suit, if in fact one exists in the legal sense, arose out of an alleged conflict of interest because Mr. Martin held the public office of Commonwealth’s Attorney. His death obviously removed this conflict of interest, if such existed. There is no longer a justiciable controversy between the plaintiffs and Mr. Martin’s law partners, and no basis for any relief against the remaining defendants.

The appeal is dismissed.


author: PALMORE, Judge.

text:
    UNITED CARBON COMPANY, Appellant, v. Faye RAMSEY et al., Appellants.
    Court of Appeals of Kentucky.
    June 9, 1961.
    Rehearing Denied Nov. 22, 1961.

      O. T. Hinton, Pikeville, for appellant. James Ramsey, Pikeville, for appellee.
   PALMORE, Judge.

The appellant, United Carbon Company, which we shall call “the company,” has an oil and gas leasehold, created in 1925; on which there are several producing gas wells. In 1934 the company by written agreement granted to the appellee Mrs. George (Faye) Ramsey “the right to take gas free for domestic use for light and heat inside of one dwelling house occupied by her from the gas well known as B. & J. Weddington No. 4, * * * such right to be exercised by said Mrs. George Ramsey at her own expense and risk and subject to the use, operation, pumping and right of abandonment of the said well by the said lessee,” etc. In this suit the company sought an injunction to prevent Mrs. Ramsey and her husband from interfering with its proposed installation of a meter and low pressure regulator on the Ramseys’ gas line at or near the well. The appeal is from a judgment denying relief.

The well is located on the property of Mrs. Thompson, a sister of Mrs. Ramsey, and for a number of years the Ramseys exercised their free gas right by connecting with a line running to the Thompson house. In March of 1959 the company requested Mrs. Ramsey to install a line directly connecting her premises with the well (a distance of 1,500 feet), which she did. In the same letter the company advised her that pursuant to a new policy designed to prevent waste by eliminating high pressure in private lines it proposed to install at the well a new spring type regulator and a meter. Previously it had been customary for low pressure regulators (reducing the pressure from pounds to ounces) on private lines to be located at or near the points of consumption rather than at the well.

After they had received the letter from the company and had laid a new line from the well to their home the Ramseys installed two new meters of their own at or near the house, one of which reduces the pressure to something between 15 and 50 pounds and the other of which further reduces it to ounces for safe use in the house. Then, when company representatives visited the' Ramseys to discuss moving the regulator to the well they were advised to the effect that they would have to go to court. In fact, the evidence is rather convincing that Mr. Ramsey threatened violence in the event the company should attempt to put a regulator on his .line at the well. This suit followed.

The company’s chief witness testified that the location of low pressure regulators close to the well is desirable because in the event of leaks in the private line less gas would be lost than would be lost if a high pressure were being maintained in the line. Meters, he said, are desirable in order that the company may know how much gas the well is producing and are also helpful in the detection of leaks. The letter to the Ramseys cited KRS 353.160(1), which provides that natural gas shall not be permitted to escape from any well or pipe line when it is reasonably possible to prevent such waste.

According to the evidence in the case the only tangible disadvantage to the Ramseys from the location of a low pressure regulator at the well appears to be that sometimes in cold weather moisture may collect on it and freeze. This might require Mr. Ramsey to travel 1,500 feet to correct the trouble. However, there are various means of prevention, such as building a protective covering for the regulator, and we are not impressed with gravity of this objection. Nor do we find it particularly relevant that for 25 years the company acquiesced in the system under which the regulator was located at or near the house. So long as the company provides at the well a sufficient supply of gas for Mrs. Ramsey’s domestic uses it is fulfilling its contract. She is not entitled to any more pressure beyond that point than is necessary in order to force from the other end of her line, assuming it is serviceable, enough gas to serve her domestic requirements for light and heat inside one dwelling house. The contract is not .ambiguous in this respect,-and we see no real question on the merits. Should the company fail to provide a regular and sufficient supply for the purposes specified in the contract the Ramseys have ample remedy.

Appellees invoke the rule that an injunction will not lie in the absence of irreparable damage. So it is, but an injury is regarded as irreparable if “there exists no certain pecuniary standard for the measurement of the damages.” 43 C.J.S. Injunctions § 23, p. 447; 28 Am.Jur. 533—534 (Injunctions, § 48). Should the Ram-seys succeed in obstructing the company’s exercise of its rights in this case it is obvious that there could be no fair and reasonable redress. Injunction was the only remedy available to the company without subjecting its employes to the risk of violence. It is no defense to say that there is no proof that the Ramseys had wasted or were wasting gas, hence there is no injury to the company; the freedom to operate its affairs in a lawful and businesslike manner is none the less a valuable right merely because it is intangible, and to the extent it is restricted there is an injury.

For the same reason just cited the company had an appeal in this case as a matter of right under KRS 21.060. The amount in controversy is not translatable in terms of money. McLean v. Thurman, Ky. 1954, 273 S.W.2d 825, 827; Salyers v. Tackett, Ky.1958, 322 S.W.2d 707, 709. Hargis v. Dumbacher, Ky.1956, 293 S.W.2d 637, cited by appellees in support of their motion to dismiss, was a simple passway case in which the amount in controversy was ascertainable by establishing the difference between the market value of the appellant’s property with the easement and its market value without it. Cf. Rogers v. Flick, 1911, 144 Ky. 844, 139 S.W. 1098, 1100.

Immediately at the conclusion of testimony in this case on May 4, 1959, the court indicated that counsel for appellees should draw a judgment dismissing the complaint. Judgment was drawn accordingly and on May S, 1959, was endorsed “Have seen” and initialed by counsel for appellant. It was signed by the judge and entered on May 7, 1959. Sixty days later, on July 6, 1959, counsel for appellant filed a verified motion for extension of time until that day in which to file a notice of appeal, showing as the basis for excusable neglect that because of illness he did not learn of the entry of the judgment until after the 30-day filing period specified by Cr 73.02. Counsel for appellees responded by counter-affidavit showing the facts with respect to opposing counsel’s initialing of the proposed judgment and receiving copies thereof on May 5, 1959. The motion was sustained and the notice was filed immediately on July 6, 1959, that being the last permissible day of extension under CR 73.02.

Appellees’ motion to dismiss the appeal on the ground that the notice of appeal was not timely filed was passed for consideration with the merits. Having now considered it, we conclude that the extension of time to and including July 6, the sixtieth day following the date the judgment was entered, was within the discretion of the trial court. A motion for such an extension may be made, upon notice, after the expiration of the original 30-day period so long as it is in time to allow the notice of appeal to be filed within 30 days from such expiration. 7 Moore’s Federal Practice R73, par. 73.09 [3], pp. 3138-3141; 3A Barron & Holtzoff § 1553, pp. 66-67. See also North Umberland Mining Co. v. Standard Acc. Ins. Co., 9 Cir., 1952, 193 F.2d 951. Though the circumstances shown by the record leave a healthy doubt as to whether counsel’s neglect was in fact excusable, the authority of a trial court in discretionary matters is necessarily broad. We cannot say it was abused in this case.

Judgment reversed and cause remanded for entry of a judgment granting permanent injunction as demanded in the complaint.


author: CULLEN, Commissioner.

text:
    Donald GROSS et al., Appellants v. Stella BARRETT, Administratrix of the Estate of Roscoe Barrett, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1961.
    Rehearing Denied Nov. 22, 1961.

      O. J. Cockrell, Jackson, E. B. Rose, Beattyville, for appellants.
    J. Douglas Graham, Campton, for appel-lee.
   CULLEN, Commissioner.

The administratrix of the estate of Roscoe Barrett, deceased, recovered a $10,000 judgment for wrongful death against Donald Gross, driver, and C. M. Carpenter, owner, of a truck with which Barrett’s automobile collided, causing his death. Gross and Carpenter have appealed, asserting as their main contention that Barrett was contribu-torily negligent as a matter of law.

The collision occurred in a sharp curve cut through the edge of a hill on State Highway No. 30, which has a blacktop surface around 19 feet in width. It was daylight but there was a light rain falling and the pavement was wet. The curve is to the right as one approaches from the north, and the inside of the curve is against the bank of the hill. On the outside of the curve, at the north end, there is a low rock formation which is the toe of the hill that remained after the highway was cut through the hill.

Barrett, in a Dodge automobile, approached tire curvé from the north.' Gross, driving a large gravel truck, approached from the south. The evidence is conclusive that the two vehicles collided in the outside lane (which was the truck’s right lane) and came to rest headed into the low rock formation above mentioned.

Gross was the only eyewitness to the actual collision. He testified that he came into the curve at a speed of 20 miles per hour or less, on his right side of the road; he saw the car coming “about two truck lengths in front of me;” then “It happened so fast all I seen was he was gripping the steering wheel like he was froze to the steering wheel and he turned to the right and I hit him. He turned to my right, to his left and I turned to the right too * * I was already in my side of the road. I was on my side all the time.”

The plaintiff’s theory of the case was that the truck entered the curve on the wrong side of the road, and Barrett on the right side; - as the two vehicles came into view of each other, a distance of some 50 feet apart, Barrett was confronted by an emergency and turned to his left in an effort to avoid the truck; at the same time the truck turned to its right side, resulting in the collision in the truck’s lane.' Having no direct evidence that this is what happened, the plaintiff was required to build his case on deductions from circumstantial evidence, consisting of testimony as to tire tracks.

Two witnesses for the plaintiff, who arrived at the scene a few minutes after the collision, testified that there were tire tracks leading from the point where the wheels of the truck came to rest back across the highway a distance of some 40 feet into the inside lane of the curve (which was the wrong lane for the truck). These witnesses also said that there were tire tracks leading back from the Barrett car a distance of around 40 feet into the inside lane (Barrett’s right lane). Witnesses for the defendants did not observe any, tire tracks of the truck, but they did see .tracks leading back from the Barrett car a distance of 22. feet into the inside lane.

While the testimony as to the tire tracks of the truck is not very satisfactory (onfc of the witnesses did not make his observation of the tracks until after some seven gravel trucks had passed the scene, and the other had signed an investigator’s report containing the statement that this witness had not seen any tracks of the truck), we will accept it- for the purposes of this appeal as probative 'evidence that at a point approaching or entering the curve the truck’ was on the wrong side of the road. The testimony concerning the tracks of the Barrett car, from the witnesses for both parties, indicates convincingly that the car was on its right side as it approached the curve.

The difficulty with the plaintiff’s case is that it requires a deduction or inference, from the evidence that in approaching the. curve the truck was on the wrong side of. the road and the car on the right side, that the driver of the car deliberately and intentionally turned across the road to his left as an emergency measure.

In order for circumstantial evidence to be sufficient to prove a civil claim it must do more than suggest a possibility, and a recovery is not authorized if liability is a mat-' ter of conjecture, surmise or speculation; if a jury is required to speculate, the party, must lose upon whom the burden of proof ultimately rests. Bryan v. Gilpin, Ky., 282, S.W.2d 133; Steely v. Hancock, Ky., 340. S.W.2d 467.

In a number of cases physical evidence such as tire tracks has been held sufficient to prove where the point of impact was, or even how (in what courses) the vehicles, approached the point of impact. See C. L. & L. Motor Express Co. v. Achenbach, 259 Ky. 228, 82 S.W.2d 335; Abell v. Whitehead, 266 Ky. 764, 99 S.W.2d 770; Silver Fleet Motor Express v. Wilson, 291 Ky. 509, 165 S.W.2d 48; Stark’s Adm’x v. Herndon’s Adm’r, 292 Ky. 469, 166 S.W.2d 828. But we are not aware of any case ' holding that tire tracks may constitute proof of why the driver of a vehicle took a particular course.

It is of course possible that Barrett intentionally turned his car to the left side as an emergency measure. However, it, is equally possible that he went to the left side of the road because he did not have, his car under control or was approaching at too great a speed to negotiate the curve. There was testimony that at a point 500 yards from the curve he was driving 60 or 65 miles per hour. From photographs of the scene introduced in evidence and from the testimony of the witnesses with reference to the photographs it appears that Barrett never started around the curve but went in almost a straight line across the road to the point of collision which, as previously stated, was at the north end of the curve.

The fact that Barrett was on the wrong side of the road at the time of the collision was prima facie proof of negligence on his part. Stark’s Adm’x v. Herndon’s Adm’r, 292 Ky. 469, 166 S.W.2d 828; Myers v. Walker, Ky., 322 S.W.2d 109. His administratrix had the burden of proving that his presence on the wrong side was not due to his negligence. The evidence with respect to the tracks, of the two vehicles, while it gives some credence to the emergency theory, does not exclude the hypotheses of lack of control or excessive speed. The true reason for Barrett’s being on the wrong side is a matter of conjecture, surmise or speculation. Accordingly, it is our opinion that the trial court erred in not directing a verdict for the defendants.

The appellants did not move for judgment n. o. v., so we can only remand the case for a new trial. If upon another trial the evidence is substantially the same the court will direct a verdict for the defendants.

The appellee concedes that the instruction on emergency was not technically correct. If upon another trial the evidence should be such as to warrant submission of the case to the jury, the court will give the correct instruction.

The judgment is reversed for proceedings in conformity with this opinion.


text:
    N. P. GASAWAY et al., Appellants, v. Mintie PENDERGRASS et al., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1961.
    Rehearing Denied Oct. 13, 1961.

      John C. Anggelis, Lexington, for appellants.
    Earl B. Rose, Beattyville, for appellees.
   PALMORE, Judge.

In this action the appellees, owners of certain undivided mineral interests in a tract of land located in Lee County, Kentucky, obtained a judgment in the circuit court declaring an oil and gas lease to be terminated. The owners of the leasehold appeal.

The property involved is part of a larger acreage on which a number of producing oil wells had been drilled and operated under a lease or leases made some 40 years ago. By 1951 these wells had petered out and were abandoned. However, there had been some secondary recovery in the local field through waterflooding projects, and it is evident that this type of recovery was envisaged by the respective parties to the lease now in question.

The lease was executed on July 26, 1951. For the purposes of this case its salient provisions are as follows:

“It is agreed that this lease shall remain in full force for a term of one year from this date and as long thereafter as oil, gas, casinghead gas, casing-head gasoline or any of them is produced from said leased premises or operations are continued for the injection of water, brine and other fluids into subsurface strata." (Emphasis added.)
⅜ ⅜ Jjt ⅜ ⅜ ⅜
“If the lessee shall commence to drill a well within the term of this lease or any extensions thereof, the lessee shall have the right to drill such well to completion with reasonable diligence and dispatch and if oil and gas, or either of them be found in paying quantities this lease shall continue to and be in force with like effect as if such well had been completed within the term of years first herein mentioned.”
* ⅜ * * sje
“In the event the first well drilled on the above land is dry, then and in that event, if a second well is not commenced within nine months, this lease shall terminate and be null and void.”

All operations under the lease were conducted by N. P. Gasaway, one of the original lessees. He commenced drilling for oil on July 21, 1952, and, after taking a core for testing purposes, plugged the well on August 9, 1952. The drilling contractor moved off to fill another engagement, and the core samples were stored until such time as they could be taken to Evansville,, Indiana, for analysis. According to Gasaway’s testimony, the intention was to seal the well only temporarily. However, on August 13, 1952, he received a notice from one or more of the lessors to vacate the premises because the lease had expired, following which, on August 29, 1952, he filed a suit in the Lee Circuit Court to enjoin any interference with his possession. That suit, in which a counterclaim was asserted seeking a declaration to the effect that the lease had expired, seems to have been abandoned by both sides shortly after September 21, 1953, when the circuit court entered an order denying injunctive relief and overruling the defendants’ motion for a summary judgment on the counterclaim. Apparently the order was interlocutory and did not effectively determine the rights of the parties. It is not pleaded in this case.

Gasaway took no further steps to develop the lease until July 1, 1953, after his attorney advised him that the court either had made or was going to make a ruling in his favor. He then set about to procure a drilling rig and finally got one onto the leasehold on September 15, 1953. Beginning on September 24, 1953, the plug was drilled out of the well heretofore mentioned, a storage tank was installed, and the well was cleaned out, shot, equipped with necessary tubes and rods, and put on a pump.

After completing this first well on October 19, 1953, Gasaway moved the rig to one of the old abandoned wells and followed the same procedure as with the well he had drilled.

Between November 16 and 22, 1953, the drilling rig was moved to a third location, this being another of the old abandoned wells, and again the same procedure was followed as with the first two.

On January 2, 1954, Gasaway moved to another of the old wells and proceeded to clean out and deepen it, but eventually gave it up and, on February 22, 1954, moved back to the first well for the purpose of deepening it. This project proved unsuccessful, so well No. 1 was plugged back to its original depth and put on the pump again around May 23, 1954.

To recapitulate, there are three wells on pump, the first being the one on which Gasa-way was drilling at the end of the primary term of the lease, and the other two being old wells which he thereafter cleaned out, shot and re-fitted. All three of these wells are connected to a single tank. They represent the total production under the lease up to the time this suit was filed in December of 1955. This production was stipulated as being 55 barrels through August 1954 and 58 barrels from then through July 1955. No royalty ever has been paid to the lessors. The trial court found as a fact that the first well either did not produce oil in commercial quantities or else was never pumped with any degree of regularity.

It will be recalled that under the express terms of the lease the lessee had the right to drill to completion any well commenced during the primary term. But if the hole proved to be dry this extension was at an end, since the 9-month “dry hole” clause would not operate beyond the primary term. Vaughn v. Hearrell, Ky.1961, 347 S.W.2d 542. Assuming that the temporary plugging of the first well on August 9, 1952, in order to have the core analyzed, was not a cessation of the drilling operation theretofore commenced during the term of the lease, and assuming also that Gasaway’s further delay during the time of the first litigation could not be charged against him (cf. 58 C.J.S. Mines and Minerals § 202g, p. 485), neither of which points are necessary to decide, there came a time when that well was completed, and if it was not a producer the lease then expired by its terms.

Giving the very widest latitude to the lessee’s position in this case, the first well finally was completed on or about May 23, 1954. Time has since proved that it was not then, and never has been since the execution of the lease, a producer “in paying quantities.” Cf. Enfield v. Woods, 1923, 198 Ky. 328, 248 S.W. 842, 843.

Following the activities described above as culminating in May of 1954, Gasaway proceeded at once to drill one or more input wells for the injection of water in order to flood or force into the other three wells whatever oil remained in the sand stratum to which they had been drilled. He spent considerable sums of money in constructing a water well and conduits, together with pumping and purification facilities necessary to the process of waterflooding, with the result that at the time this case was tried, late in 1956, an engineer testified that “a good start” had been made toward successful production by waterflooding. This witness would not call it a successful operation as yet, but thought it probably could be made so, and that it “would possibly take a year” to get an increase of production.

Since its term was for one year “and so long thereafter as * * * operations are continued for the injection of water, brine and other fluids into subsurface strata,” the appellants take the position that the lease was kept in force by the aforementioned waterflooding efforts. They contend, therefore, that the lessors must rely on forfeiture for non-development, under which theory there are various defenses that are not applicable if the question is limited to whether the lease had expired by its terms. But as we view this contract, it had expired before the waterflooding operation began. When the primary term ended, this operation, though it may have been contemplated in futuro, did not exist in fact; nor was there any production. Hence the lease was held in force only by.virtue of the provision that if the lessee should commence a well during the term he would have the right to drill it to completion “and if oil and gas, or either of them, be found in paying quantities this lease shall continue to and be in force * * * as if such well had been completed within the term” etc. (Emphasis added.) This provision is not ambiguous, and it solves the controversy. Had the well been a producer, thus keeping the lease in force, and had thereafter declined to a point at which waterflooding was resorted to as a secondary recovery method, we should then have been faced with the question of how long a lessee’s unsuccessful experiments can keep a lease alive in the absence of production; but the hard fact is that under this lease there was never any primary recovery.

It is argued also that because Gasa-way spent a large amount of money in his efforts to develop the lease the principle of equitable estoppel should operate against the lessors. However, considering the fact that the lessors have engaged in at least two lawsuits to stop him we are unable to find any rational basis for estoppel.

The record on which this appeal was brought shows that the judgment was entered on July 20, 1959, and that the notices of appeal were filed 39 days later, on August 28, 1959. Since timely filing of the notice is mandatory, Electric Plant Board of City of Hopkinsville v. Stephens, Ky.1954, 273 S.W.2d 817, we dismissed the appeal sua sponte. Appellants thereupon filed a petition for rehearing, supported by an affidavit of the attorney who represented them in the circuit court showing that the judgment actually was entered on July 30, 1959. This affidavit was made on March 15, 1960, well before submission of the issues on appeal. In the petition for rehearing counsel states that he noticed the discrepancy in the record and obtained the affidavit for use in event the question should be raised. He took no action to correct the misprision, as would have been, the proper procedure under CR 75.08, but waited to see if it would escape attention. This tactic has resulted in an imposition on the court and on the many other litigants and lawyers whose cases are under submission awaiting its attention. A clerical error, if it is of sufficient importance to require correction, should be remedied promptly when discovered.

Though we have modified our opinion by extending it to the merits, we do not wish it to stand as authority for the proposition that an error in the record, of which the party adversely affected by it is aware in ample time to have it duly corrected, can be first brought to this court’s attention after decision and then corrected on a rehearing. Hence the petition for rehearing will be overruled.

The controversy between counsel for appellant and the circuit court clerk regarding costs of the transcript may be resolved by the trial court under KRS 28.120.

Appeal dismissed.