author: COLEMAN, Justice.

text:
    Thresa Tyes BROOKS, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 13892.
    Court of Civil Appeals of Texas. Houston.
    April 26, 1962.
    Rehearing Denied May 31, 1962.

      Barker, Barker & Coltzer, Jerry D. Barker, Galveston, Gripp, Will & Collins, Houston, for appellant.
    Royston, Rayzor & Cook, Bryan F. Williams, Jr., Galveston, for appellee.
   COLEMAN, Justice.

This is a suit for death benefits under the Texas Workmen’s Compensation Act. After trial to a jury a judgment for the plaintiff was entered by the trial court. The plaintiff has appealed.

The question before this Court is the effect of a 1959 amendment to the Workmen’s Compensation Act on then pending cases involving contracts, employments, and injuries occurring prior to the amendment.

John Brooks died on December 17, 1958, as a result of accidental injuries sustained in the course and scope of his employment. At the time of his employment and of his injury, and at the time of his death, Sections 1-3 of Article 8309 of Vernon’s Annotated Texas Statutes, provided, in substance, that in computing an employee’s “average weekly wages” for the purpose of determining the amount of compensation benefits due, the actual daily wages should be used if the employee, or, in the alternative, another employee “of the same class,” worked in the employment in question “substantially the whole of the year immediately preceding the injury.” If neither the employee injured nor an employee of the same class worked substantially the whole of the preceding year, then the act required that the average weekly wage be fixed in an amount “just and fair to both parties.”

In 1959 these Sections of the Workmen’s Compensation Act were amended so that the words “substantially the whole of the year” were eliminated and the words “for at least two hundred ten (210) days of the year” were substituted. This amendment was effective August 11, 1959 and the trial of this case began January 16, 1961. The amendment contained no savings clause.

“It is the law of this State, and the law generally, that, in the absence of any special indication or reason, a statute will not be applied retrospectively, even when there is no constitutional impediment against it. Stated in another way, it is the rule that statutes will not be applied retrospectively unless it appears by fair implication from the language used that it was the intention of the Legislature to make it applicable to both past and future transactions. Rockwall County v. Kaufman County, 69 Tex. 172, 6 S.W. 431; Purser v. Pool, Tex.Civ.App., 145 S.W.2d 942, and many authorities there cited; Mississippi, C. R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897; Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883; State v. Ward, 189 Okl. 532, 118 P.2d 216; Freeman v. Terrell, 115 Tex. 530, 284 S.W. 946.” State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707.

We find nothing in the 1959 amendment indicating a legislative intent that compensation to he paid workmen injured prior to the effective date of the amendment should he computed in the manner prescribed by the amendment.

Appellant contends that this general rule does not apply to procedural and remedial statutes, citing Bristow v. Nesbitt, 280 S.W.2d 957, Tex.Civ.App., no writ hist., where the court stated:

“Venue statutes 'are procedural and rights thereunder are remedial as distinguished from substantive rights. Hadlich v. American Mail Line, D.C., 82 F. Supp. 562. A remedial statute, in the absence of a provision to the contrary, applies both to pending and future litigation. Bruton v. Texas Power & Light Co., Tex. Civ.App., 44 S.W.2d 462; Walker v. Lyles, Tex.Civ.App., 45 S.W.2d 315; 82 C.J.S. Statutes, § 422, p. 998.”

In Bardwell v. Anderson, Tex.Civ. App., 325 S.W.2d 929, writ, ref., n. r. e., we stated the general rule in the following language:

“The general rule is that in the absence of an express intention to the contrary, legislation dealing with a procedural matter applies to pending litigation to the extent that subsequent steps in the case are to he taken under the new rule. Past steps taken under a rule or statute will not be affected, but subsequent steps will be governed by the new rule provided a reasonable time is afforded in which to take them. A remedy must not be denied by entirely eliminating it or be so unduly limited as to amount to a denial of it, such as by changing the time within which it may be resorted to so that it cannot as a practical matter be asserted. Walker v. Lyles, Tex.Civ.App., 45 S.W.2d 315, affirmed Tex.Com.App., 124 Tex. 38, 72 S.W.2d 1113; Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905; Hunter v. Moore, Tex.Com.App., 122 Tex. 583, 62 S.W.2d 97; Red v. Bounds, Tex.Com.App., 122 Tex. 614, 63 S.W.2d 544.”

One question to be determined is whether or not the amendment under consideration is procedural or remedial.

“ * * * the word ‘procedure,’ as a legal term, is so broad in its signification that it is seldom employed as a term of art, and it is not well understood, and is difficult to describe or define.

“Procedure is the machinery for carrying on the suit, and it includes pleading, process, evidence, and practice, whether in the trial court or the appellate court, or in the processes by which causes are carried to appellate courts for review, or in laying the foundation for such review; in fact, procedure includes every step which may be taken from the beginning to the end of a case.” 72 C.J.S. Practice pp. 471, 473.

“Adjective law, also referred to as the ‘law of remedy,’ ‘procedural law,’ and ‘remedial law,’ is the law which pertains to practice and procedure, or the legal machinery by which the substantive law is made effective * * *.

“ * * * Substantive law, as constitutionally, legislatively, and judicially recognized, includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property, and quite generally fix the type of remedy available in case of invasion of those rights. * * * ” 52 C.J.S. Law p. 1026.

Under these general rules it is evident that laws regulating venue are procedural in nature, as was held in Bris-tow v. Nesbitt, supra. The statute eliminating service of notice of appeal from the decision of the Industrial Accident Board on the insurance carrier would be a procedural matter, as was held in New Amsterdam Casualty Company v. Patton, Tex.Civ.App., 22 S.W.2d 540, aff’d Tex.Com.App., 36 S.W.2d 1000. Changes in the requirements in appellate procedure are likewise procedural. Bardwell v. Anderson, supra; Hope Oil Corp. v. Humble Oil & Ref. Co., Tex.Civ.App., 43 S.W.2d 272; Devlin v. Heid Bros., Inc., 47 S.W.2d 383, Tex.Civ.App., writ dism.; Bruton v. Texas Power & Light Co., Tex.Civ.App., 44 S. W.2d 462; Walker v. Lyles, Tex.Civ.App., 45 S.W.2d 315, aff’d 124 Tex. 38, 72 S.W.2d 1113.

In Falls v. Key, 278 S.W. 893, Tex.Civ.App., writ dism., the court states:

“The presumption against the retrospective construction of statutes is founded on the principle that they should not be given such a construction as will make them unconstitutional or unjust, and therefore as a general rule does not apply to statutes that relate merely to remedies and modes of procedure. The Legislature has full control over the mode, times, and manner of prosecuting suits; and whenever, upon consideration of an entire statute relating to these matters, it appears to have been the legislative intent to make it retroactive, it will be given this effect. 36 Cyc. p. 1213, § 2. The retroactive effect has accordingly been given statutes providing a new mode of enforcing claims against the state or county, authorizing the issue of executions and attachments, authorizing the foreclosure of mortgages in certain cases, relating to the enforcement of liens, etc.”

Falls v. Key, supra, is also an example of a remedial statute. Black’s Law Dictionary, 2nd Ed., p. 1457, gives as one definition of the term “remedial statute” the following :

“Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever. 1 Bl.Comm. 86; Falls v. Key, Tex.Civ.App., 278 S.W. 893, 896; Columbus Trust Co. v. Upper Hudson Electric & R. Co., Sup., 190 N.Y.S. 737, 739. These remedial statutes are themselves divided into enlarging statutes, by which the common law is made more comprehensive and extended than it was before, and into restraining statutes, by which it is narrowed down to that which is just and proper. A remedial statute is one which not only remedies defects in the common law but defects in civil jurisprudence generally. M. H. Vestal Co. v. Robertson, 277 Ill. 425, 115 N.E. 629, 631; MacDonald v. Hamilton B. Wills & Co., 199 App.Div. 203, 191 N.Y.S. 566, 568.”

Viewed in the light of this definition the amendment under consideration is a remedial statute. However we are not persuaded that the conclusion that a statute is remedial necessarily carries with it the conclusion that the statute is retrospective. In the case of Falls v. Key, supra, the court seems to have found the intention of the legislature from a consideration of the act as a whole, although recognizing the general rule that statutes relating to procedure or legal remedies apply both to pending and future litigation, since no one is given a vested right under such statutes. The statute under consideration is not concerned with steps or measures to be taken by litigants in advancing or securing an adjudication of their rights. The average weekly wage is a basic factor in determining the compensation due an injured employee. The employer and the insurance company contracted with reference to the method of determining “average weekly wage” as established by legislation at the time of the contract. This change is a matter of substance similar to the change in maximum weekly benefits considered in Garrett v. Texas Employers’ Insurance Association, 226 S.W.2d 663, Tex.Civ.App., error ref.

Since we discern nothing indicating an intention on the part of the Legislature to make this Act retrospective, the trial court properly refused to base his decision on its provisions. Government Personnel Mut. Life Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525.

Appellant also contends that the amendment of 1959 applied to subsequent trials of pending litigation because it constituted a legislative interpretation of the meaning of the phrase “substantially the whole of the year” contained in the amended sections.

While we recognize the rule that where a later act implies a particular interpretation of an existing law, the meaning of which is uncertain, such interpretation of the prior act is persuasive when a court is called upon to interpret the act. Stanford v. Butler, 142 Tex. 692, 181 S.W. 2d 269, 153 A.L.R. 1054 ; 82 C.J.S. Statutes, p. 787, § 360; 39 Tex.Jur. 239, Statutes, par. 127.

The meaning of the words “substantially the whole of the year” has not been uncertain since Petroleum Casualty Co. v. Williams, Tex.Com.App., 15 S.W.2d 553, was decided in 1929. There the court determined that phrase to mean approximately 300 days. The law has been so construed since that time and this Court would not be warranted in attempting to change the meaning of that phrase even if we were persuaded that the amendment of 1959 should be considered a legislative interpretation. The Legislature has not attempted to change the meaning of the phrase; it has changed the law by eliminating the phrase.

The judgment of the trial court is affirmed.

On Motion for Rehearing

Appellant contracted for the services of her attorneys on the basis that in the event it was necessary to appeal from the decision of the District Court, the attorneys should receive a fee of one-third of the total recovery. In the event there was no appeal a lesser amount was provided, which sum was awarded by the trial court. Appellant has requested that this Court reform the judgment of the trial court to conform to the contract. There is no contention that the trial court erred in the award made, rather the contention is that additional fees have been earned and should be allowed by this Court. An award of attorney’s fees in the amount requested was permissible under the law in effect at the time the contract was made, but the trial court was not required to award the maximum amount permitted by law even though the parties had contracted for such amount. Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482; Fidelity Union Casualty Co. v. Dapperman, 53 S.W.2d 845, Tex.Civ.App., writ ref.; Texas Employers’ Ins. Ass’n v. Lane, Tex.Civ.App., 124 S.W.2d 893, writ ref., judg. correct; White & Yarborough v. Dailey, 5 Cir., 228 F.2d 836.

Since the amount of attorney’s fee to be allowed is not controlled by the parties’ contract, but must be determined by the trial court in the exercise of his judicial discretion, the fixing of such an attorney’s fee constitutes the exercise of original rather than appellate jurisdiction. Smith v. Texas Co., 53 S.W.2d 774, Tex.Com.App.; Volkmer v. Chase, 354 S.W.2d 611, Tex.Civ.App.

Appellant’s motion for rehearing is denied.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    James A. PREVOST, Sr., and James A. Prevost, Jr., Appellants, Fred M. WILKIN and John W. Wilkin d/b/a Wilkin Brothers Commission Company, Respondents.
    Nos. 23509, 23510.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.
    Thaine Q. Blumer, Blumer & Wright, Kansas City, for appellants.
    Martin J. Purcell, James C. Mordy, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondents.
   MAUGHMER, Commissioner.

Plaintiff brought suit for money had and received. Defendants counterclaimed against plaintiff and against a third party defendant. The court directed a verdict for defendants against the third party defendant. The jury found for plaintiff on his petition and for defendants on their counterclaim. The plaintiff and the third party defendant have appealed.

Plaintiff, James A. Prevost, Sr., who at the time of trial in March, 1961, was 71 years of age, had been since 1928, an “order buyer” at the Kansas City Stockyards. He operated as Prevost Order Buying Company, and mostly bought and sold hogs. He bought on orders from individual customers. To operate such a business extensively required either a large amount of capital or credit. For this reason and as a protection to commission firms that were dealing with these individual operators — order buyers and speculators — it was the practice for such persons to associate themselves with some livestock commission firm that was a member of the Kansas City Livestock Exchange. The order buyer opened a “margin account” with the commission company and it in turn honored his drafts and kept his dealings in a separate bookkeeping account. He was debited for purchases and other expenses and credited with remittances from sales as they came in. About 1951, the plaintiff entered into such arrangements with defendants Fred M. Wilkin and John W. Wilkin d/b/a Wilkin Brothers Commission Company. The plaintiff kept a margin account with Wilkin which usually amounted to a few thousand dollars and Wilkin received ten cents per head on hogs bought and sold.

Although plaintiff sued defendants for money had and received there is really no dispute as to this account. Plaintiff’s business was always profitable. Plaintiff claims and defendants admit that at the time of trial his personal account with them had a credit balance of $2,095.33. The court instructed the jury to find for or credit plaintiff with this amount. The verdict was in accord with these instructions and the judgment entered credited plaintiff with this sum.

This lawsuit in truth and in fact arose from the similar business transactions which plaintiff’s son had with defendants. This son, James A. Prevost, Jr., was brought in as a third party defendant. During the early Fifties young Prevost was a partner with his father. In 1957, 1958 and 1959, he operated on his own with Wilkin Brothers as his broker. His largest account was a weekly order for pigs from a serum company. While the son’s operations were never so profitable as his father’s and his account showed a debit balance a great part of the time, he, nevertheless, kept going through 1957 and 1958. In the fall of 1958, he had over 800 pigs on hand and they developed a contagious disease similar to cholera. In addition to pig losses, this sickness resulted in additional expenses for treatment and feed. The widespread prevalence of the disease caused this type of business to become almost dormant, but young Prevost continued to draw living expenses from his broker. He said he knew he had lost a lot of money; that he offered to sign a note for defendants and that “whatever they prove that I owe, I owe”. He said “My obligation I assumed from what they told me was $12,500, but it isn’t that much apparently from what they said today”.

Defendants’ books, which were not questioned by either of the Prevosts as to their correctness, showed that young Prevost’s account had a debit balance of $12,044.05 when the arrangement was terminated in 1959. The trial court directed a verdict for defendants against the third party defendant James A. Prevost, Jr. for this amount. We believe the verdict was properly directed against the third party defendant. The general rule which covers such a situation was stated in Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 693:

“It is a generally accepted rule in this state that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof, (citations). There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is un-impeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass, (citing cases)”. (Italics ours).

This quoted pronouncement was approved in Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282-287. Although plaintiff and the third party defendant took separate appeals, the appeals are joined in one brief.

The real dispute here is whether or not James A. Prevost, Sr. is liable for his son’s indebtedness to defendants. By their counterclaim defendants assert that he is because on January 28, 1958, the following agreement was signed and entered into between them:

“Agreement
“This Contract between Wilkin Bros. Commission Company and James Pre-vost Sr., Witnesseth:
“That whereas James A. Prevost, Jr., is purchasing livestock through the Wilkin Brothers Commission Company and the Wilkin Brothers Commission Company is paying the purchase price for said James A. Prevost Jr.
“In consideration of the payment of said purchases, James Prevost, Sr. agrees to guarantee Wilkin Brothers Commission Company against any loss whatever by reason of payment for any purchases made by James A. Prevost, Jr-
“Dated at Kansas City, Missouri, this 24 day of January 1958.
“S/ James A. Prevost Sr.
“S/ Wilkin Bros.
“By F. M. Wilkin
“Witness:
“T. J. McKinley.”

Plaintiff admits that he signed this agreement. His defense is that early in 1959, a dispute arose between himself and defendants — defendants claiming he was obligated to pay his son’s debt to them, and plaintiff contending that he was not so obligated— and that plaintiff offered to pay the sum of $500 in full settlement and compromise of the dispute which offer defendants accepted, resulting legally in establishing an accord and satisfaction. The evidence shows that early in 1959, plaintiff drew, signed and defendants cashed his check for $500. Plaintiff handed the check to his son, who delivered it to defendants. Plaintiff says it was in full settlement of defendants’ claim against him on his son’s indebtedness. Defendants say it represented merely a payment of interest on the unpaid balance. James A. Prevost, Jr. testified as follows about the check:

“A. * * My dad gave me this as interest to pay Mr. Fred, so I could continue for another year.
“THE COURT: Interest on what?
“THE WITNESS: The interest on my indebtedness, Your Honor”.

The contentions of both plaintiff and defendants as to the guaranty agreement and the $500 check were fully submitted to the jury. The jury found for defendants and against plaintiff.

Three assignments of error are presented on appeal. One is that it was error to direct a verdict against the third party defendant. That point has already been disposed of and adversely to appellants under the reasoning in Coleman v. Jackson County, supra. We think that the basic facts of defendants’ claim against young Mr. Prevost were admitted in his individual testimony and were established by the bookkeeper’s records, the authenticity and correctness of which were unquestioned. Hence there remained no question of fact as to this point. We have examined the cases cited by appellants which hold the court may not direct a verdict on oral testimony where the same was not admitted by the opponent. Those cases do not rule our case.

Appellants charge that the court erred “in refusing to allow third party defendant to testify in his own behalf because such was an abuse of discretion”. The assignment is misleading and is not substantiated by the record. James A. Prevost, Jr., the third party defendant, was allowed to and did testify. His testimony covers 19 pages of the transcript. The same attorneys appeared for and represented both plaintiff and the third party defendant. After all parties had concluded their testimony and counsel for both of the Prevosts had informed the court he had nothing further to offer, a recess was declared and the parties retired to the court chambers. There counsel for plaintiff and the third party defendant moved the court to “allow him to withdraw resting his case and offered to put the third party defendant James A. Prevost, Jr. on the witness stand” to prove the figures given by defendants’ bookkeeper from defendants’ books were inaccurate. In response to inquiries by the court, counsel admitted that the court was not asked for an opportunity to examine the books before the case was closed, never suggested that the movant’s clients wanted to look at the books, and counsel knew that plaintiff’s contention was not that the books were inaccurate, but that there had been an accord and satisfaction. It is apparent, too, that this request came after Mr. McKinley, the bookkeeper, had brought the records into court, testified and was cross-examined thereon. The court denied the motion to reopen the case. We rule that in doing so the court did not abuse its discretion or commit error.

Appellants’ final point asserts it was error to give Instruction No. 5. Instruction No. 1 properly submitted plaintiff’s defense of accord and satisfaction as to defendants’ counterclaim. Instruction No. 5, defendants’ main instruction, required a finding of execution and delivery of the guaranty agreement, reliance thereon by defendants in their advancement of money to young Prevost, and the amount of said advancements. The sole complaint against this instruction is that it did not negate plaintiff’s defense of accord and satisfaction or refer to it in any way, nor did it refer to the instruction submitting that defense. It is asserted that the two instructions are conflicting and inconsistent. Appellants rely upon the much discussed case of Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14. Our Supreme Court en banc therein overturned a line of cases and ruled, we think, that in an automobile accident case where the defense of contributory negligence was pleaded, substantial evidence thereon shown, and the defense was submitted to the jury, it was error “to give a verdict-directing instruction for plaintiff which fails to refer to or negative his contributory negligence”. The court said further in such a situation “the result is a definite conflict between the two instructions”. The opinion continues:

“Which will the jury follow? If the jury find the facts hypothesized in plaintiff’s instruction it may consider that it need not give further consideration to other instructions dealing with the issue of liability. On the other hand, if, as it should, the jury carefully considers and attempts to reconcile all of the instructions, it will likely be perplexed and confused as to the proper manner to interpret and attempt to follow the inconsistent directions contained in the two conflicting instructions. * * * ”

The Moore opinion (page 24) contains this additional comment:

“ * * * we note that in the case at bar the court gave the following instruction at the request of defendant: ‘The court instructs the jury that if you find and believe from the evidence that both plaintiff and defendants were guilty of negligence as defined in other instructions, and that plaintiff’s negligence (if any) directly contributed to the collision in question and to plaintiff’s injuries, then plaintiff cannot recover and your verdict will be in favor of defendants.’ While we need not and do not rule the question, we observe that an instruction of that nature might be a sufficient basis for a ruling that the error would not be considered reversible”.

Contributory negligence and accord and satisfaction are both generally held to be affirmative defenses. Appellants say that the doctrine expounded in the Moore case for contributory negligence cases should be extended to and should be applied to the case at bar and the defense of accord and satisfaction.

In the first place the Moore case specifically declares a rule where the defense is contributory negligence. We find nothing to indicate it is announcing an instruction rule for all affirmative defenses. It may be contended, as appellants contend, that logic makes the rule equally applicable to all affirmative defenses. But the Moore opinion does not say so. It has long been the law in Missouri that all of the instructions given should be read and considered together in order to determine if the jury was misled or misdirected. The Supreme Court in Johnson v. Flex-O-Lite Mfg. Corp., 314 S.W.2d 75, 81, said:

“All of the instructions given in a case should be read together and as parts of a single charge in order to determine the correctness of the charge or the effect of any deficiency in a particular instruction, (citations)”.

For this court to rule the case at bar as covered by the Moore opinion, would require us to go beyond its actual holding, by-pass the rule that all of the instructions be considered together and in effect further enlarge and extend the change promulgated by that opinion. We believe that if any such extension is made it should be by the Supreme Court rather than by this court.

Furthermore, we believe there is a difference between instructions submitting contributory negligence and accord and satisfaction, with respect to their being misleading and inconsistent, and certainly as to the likelihood of perplexing or confusing the jury. There is a difference in the time element. Contributory negligence is interwoven with claimant’s assertion of original liability. It is almost a part of plaintiff’s basic case for if he at the time was con-tributorily negligent and so contributed to cause the accident, liability never attaches and he cannot recover, whereas the defenses of payment, settlement, accord and satisfaction do not dispute the original liability but claim that later it was extinguished. The jury is much more likely to be confused, we think, by separate instructions on negligence and contributory negligence in an automobile accident case than by separate instructions on original liability under a guaranty instrument and a later compromise, accord and satisfaction thereof. A jury might find a defendant negligent but if it believed plaintiff was concurrently also negligent, liability would never come into being and hence both questions should be considered at the same time. Moreover, if the jury, as often happens, wanted to find both negligence and contributory negligence, it might with separate instructions be confused as to which should have final effect. But with separate instructions as to liability under a guaranty agreement, and a later settlement or accord and satisfaction of that liability, we think the jury should have no difficulty as to which would have the final effect.

It is our opinion in the instant case that the jury was not misled by the instructions. We do not believe that Instructions No. 1 and No. 5 are actually conflicting or that reversible error was committed in giving them. We believe from a reading and consideration of all of the instructions that the jury was fully and fairly charged.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: HUNTER, Presiding Judge.

text:
    CONSUMERS MONEY ORDER CORPORATION, Appellant, v. Leonard PETTIT et al., Respondents.
    No. 23564.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.
    Sheffrey, Ryder & Skeer, by Byron Mil-gram, Kansas City, for appellant.
    Hammond C. Woods, Kansas City, for respondents.
   HUNTER, Presiding Judge.

This appeal involves the interpretation of a trust agreement and an insurance letter to determine upon which of the parties a loss of $1,445.34 from a burglary falls.

Plaintiff-appellant, Consumers Money Order Corporation, is in the business of supplying its licensed agents with money orders to be sold to the general public. Respondents-defendants, Mr. and Mrs. Leonard Pettit, owners of a drug store in Kansas City, originally sold their own money orders but on September 29, 1960, entered into a written contract designated “trust agreement” with Consumers Money Order Corporation whereby in consideration of the Pettits being appointed by appellant as its licensed agents to sell appellant’s money orders, the Pettits agreed to comply with the terms of the trust agreement.

Paragraph 4 of the trust agreement requires the Pettits to pay over to appellant’s collection agent all proceeds from the sale of money orders, less a stated selling commission. Paragraph 5 provides that except as modified by separate written agreement, the Pettits are to save appellant harmless from loss or destruction of the proceeds realized from the sale of money orders from any cause whatsoever, including burglary.

As a result of some discussion on the subject, on October 21, 1960, Consumers Money Order Corporation issued to the Pettits an “insurance letter” in which it undertook and agreed “that insurance in the amount of $1,500.00” covering among other incidents “safe burglary” was to be provided the Pettits by the Corporation. Another provision of the insurance document stated, “Please note that there is no coverage whatsoever on * * * (2) the loss of funds, by any cause whatsoever, which you have failed to promptly turn over to our collector after he has called upon you to collect the said funds. * * * ”

At the time the trust agreement was signed the Pettits and appellant’s regional manager, Mr. Burroughs, discussed the collection practice to be followed. Mr. Burroughs testified, “Mr. Pettit suggested and I readily agreed that we should make collections twice a week in order to reduce the number of checks and cash on hand in the store.” Collections were to be made regularly on each Monday and Thursday. Each Monday was to be “the regular settlement day” whereas each Thursday was to be “purely collection of cash”.

Mr. Burroughs was the one who on behalf of his company made all the collections from the first to and including the last one before the burglary. He explained the difference in the Monday and Thursday collections. Each Thursday “I would go into the store, get out the books that I needed, the record forms, and Leonard would hand me a box containing cash. I would pay no attention to the records of the money orders but would simply count the cash and the checks and give him a receipt for that cash. I didn’t make up the regular report; I didn’t attempt to audit anything at all; I would simply count the checks and the cash.” However, on each Monday “(I) would not only count the cash and checks on hand then but (I) would make a complete report of the money orders sold during the past week, and part of the proceeds that he gave me would of course be accounted for by the receipt which I had given him on the prior Thursday. * * * Monday was the day we brought everything up to date.”

Mr. Burroughs knew and understood that with regard to the Monday collections it was the practice of the Pettits because of the practical problem of operating a busy store not to have their records added up to the very moment of Mr. Burroughs’ arrival but rather as Mr. Burroughs stated it, to omit “Those that they may have sold during those few hours, or on that particular day of the collection. Q. Am I to infer, then, that there wasn’t a complete accounting for every penny that wasn’t on hand and every money order that was in their possession? A. Not right to the penny. It was almost an impossibility unless I wanted to spend a great deal of time in the store to bring everything up to the last money order sold. They would do this prior to my arrival. * * * In the regular course of things as I understood it Mrs. Pettit would add them up in the morning. * * * The records were ready when I got there in the evening. Q. And they turned over everything they had the records on? A. Yes. Q. Didn’t you know at that time that there would be funds on hand that weren’t included in those records? A. We would assume that there were some that they had written that day (after the report was made up).” Normally, this was not a large sum. “Q. Had Mr. or Mrs. Pettit or Mr. Dylces ever refused to turn over money to you that you asked them for? A. No, they never have.”

Mr. Pettit’s testimony was that appellant’s agent never asked for and never expected to receive on the Monday collections any money from business transacted on the collection day but only that included on the report made up “prior to the day he was there.” Other evidence indicated that Mr. Burroughs had no set time for his arrival at the store for the Monday collections, and, hence, that it was the recognized practice for the Pettits to have their collection records made up before and ready when the store opened for business on each Monday.

On the day in question, Monday, January 23, 1961, Mr. Burroughs arrived at the store about 5:00 or 5:30 p. m. The store was crowded. He stayed until after 6:00 p. m. He made the usual collection. “Q. Was there anything different (about this collection) ? A. To the best of my knowledge everything was just as it should be there.” Thereafter, during the night of January 23rd, the store was burglarized, the safe broken into, and $1,574.54, constituting proceeds from the sale of money orders, was taken by the burglars. Later, $129.20 was recovered leaving a loss balance of $1,445.34.

It is the contention of Consumers Money Order Corporation that the loss of this stolen money is not within the mentioned insurance coverage because the Pettits had it in their possession at 5 :30 p. m. on January 23, 1961, and had failed to turn it over to its collector, Mr. Burroughs. The Pettits contend the loss is within the terms of the insurance document, noting that both the language of the document and the interpretation placed upon it by the parties by their actions contemplated that such money would not be collected at that time and, hence, would be insured against loss by burglary. The case was tried to the court as jury waived. The trial court found the issues for the Pettits, rendered judgment accordingly, and this appeal followed.

The rule is firmly established in Missouri that insurance contracts, like other contracts, are accorded reasonable interpretations. The court discharges its full duty when it ascertains and gives effect to the intention of the parties, as disclosed by the contract they have made. The guiding principle is to view the contract in a reasonable, practical and sensible manner so as to accomplish the purpose for which it was made and intended rather than to view it in a strict, overly technical manner which would defeat its purpose or object. The application of the terms of an insurance policy to any given situation should likewise be determined by the same rules of common sense so as to carry out the intent of the parties thereto. 44 C.J.S. Insurance § 296, page 1163; McKinney v. Truck Insurance Exchange, Mo.App., 324 S.W.2d 773 (3-6).

It is tacitly conceded that the loss of funds in question is covered by the insurance document unless the exception noted above applies, namely, “(2) the loss of funds, * * * which you have failed to promptly turn over to our collector after he has called upon you to collect the said, funds * * ⅜» (Emphasis ours.) As we view it, the determinative question is, did the insurer’s collector, Mr. Burroughs, call on the insured, the Pettits, to collect “said funds” — that is, funds resulting from transactions occurring on the day of the collection; and, if so, did the Pettits fail to turn them over “promptly”.

The testimony gives a clear answer to these questions. Mr. Burroughs did not call on the Pettits to collect funds obtained by them from the Monday collection day transactions. As a matter of convenience to him, on Mondays he called to collect only those funds obtained prior to Monday and upon which funds the Pettits customarily had previously prepared the contemplated records. Mr. Burroughs could have collected all of the money the Pettits had (as he did each Thursday) and later have obtained the desired accounting records. He could have asked for all the funds on hand and have waited while the mentioned records were being made up, but to do so would have necessitated him waiting a considerable time while the records desired by the insurer were being prepared. As Mr. Burroughs stated, “It was almost an impossibility (to obtain a complete accounting on Mondays) unless I wanted to spend a great deal of time in the store to bring everything up to the last money order sold.” He further testified the Pettits never refused to turn over money he asked them for.

Because of the practicalities of the ordinary and well understood circumstances involved in making the Monday collections Mr. Burroughs chose to limit those Monday collections to funds received prior to the Monday collection day. Under such circumstances we rule that within the meaning of the mentioned insurance document language “failed to promptly turn over to our collector after he has called upon you to collect the said funds” there was no failure on the part of the Pettits to promptly turn over funds collected by them on Monday, January 23, 1961, for Mr. Burroughs did not call on them to collect those funds when he visited them that day hut chose to leave such funds with the Pettits for a later collection. It is unfortunate that the burglary occurred on the particular Monday evening after an unusually large amount of money orders (which according to the transcript totalled $898.01 rather than $1,445.34) had been sold earlier that day but the loss resulting from this circumstance was one within the coverage of the insurance provided.

For the reasons stated above the judgment is reversed and the cause is remanded to the circuit court with directions to enter judgment for respondents in the amount of $898.01, the correct amount as determined by this court, of the proceeds of the money orders sold on January 23, 1961, and stolen in the burglary.

It is so ordered.

All concur.


author: BROADDUS, Judge.

text:
    George SCHWEIKERT, Jr., Plaintiff-Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Defendant-Appellant.
    No. 23237.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Richard H. Koenigsdorf, City Counselor, John Cosgrove, Timothy D. O’Leary, Associate City Counselors, Kansas City, for appellant.
    Thaine Q. Blumer, Thomas J. Brown, Blumer & Wright, Kansas City, for respondent.
   BROADDUS, Judge.

Plaintiff sued Willie Anderson and Kansas City for personal injuries and property damages growing out of a collision wherein the City’s truck, being used for street cleaning at the time and being driven by Anderson, collided with the rear of plaintiff’s passenger car while it was stopped by traffic lights at a street intersection. Judgment was for plaintiff, as against Kansas City, in the sum of $5000. There was a verdict in favor of the co-defendant, Anderson. Kansas City, hereafter known as defendant appealed.

On October 2, 1961, we handed down our opinion affirming the judgment. Defendant filed a motion for re-hearing, which was sustained, and the case has again been argued and submitted.

There was evidence to the effect that Anderson, a regular employee of defendant, was the operator of a garbage truck owned by defendant; that it had been “loaned” by the garbage department to the street department in January, prior to the occurrence of the accident on June 12, 1958, and was, at the time the collision occurred, being used to pick up trash on Troost, a north-south street; that plaintiff drove his Ford car south on Troost and stopped at 39th Street in obedience to traffic regulations ; that the truck approached from the north and collided with the rear of the automobile knocking it several feet to the south, into the intersection.

Officer Dunlap, of the accident investigation unit, testified for defendant on direct examination to the effect that he was sitting in his police car at the curb on 39th, west of Troost, facing east; that he heard air brakes, “not once but twice”, and saw the truck strike the Ford automobile; that he walked up to the scene and talked to the respective drivers. His testimony as to what Anderson told him is as follows:

“He told me that he was following this car up the street and he realized that there was going to be some danger about thirty feet away when he noticed this car stop; he said he tried his brakes once and they didn’t work and he tried them again and they didn’t work but they held on the third try but then it was too late to avoid striking the car. He said he was * *

On cross-examination he said that the speed of the truck was “very slow”; that there were no skid marks.

Plaintiff testified on direct examination, without objection, that a city garbage truck struck his automobile in the rear, while parked with the brakes on, and knocked it into the intersection; that he over-heard a conversation between the driver of the truck and the traffic policeman; that Anderson said: “Well, I had it all the way down and it didn’t do nothing”; that the. policeman tried the truck brakes; that Anderson then said: “he’d been trying to have the brakes fixed for several weeks, didn’t have no luck”. On cross-examination he stated that the pedal went down to the floor board when officer Dunlap tested the brakes.

Anderson’s deposition had been taken and, at the trial, his whereabouts were unknown. Parts of the deposition were read in evidence over defendant’s objection. Anderson stated: “I was driving along between fifteen and twenty miles an hour going south on Troost and there was a guy a good ways in front of me, and the lights caught him and he stopped and I hit my brakes and they didn’t stop. * * * I had been driving the truck, I don’t know exactly, I guess about a year, and the brakes had been pulling one way and pulling the other, and it had been irr the shop about six or seven times before-that wreck”; that, before the wreck, it would always stop “but they didn’t act like-they should”; that the truck was repaired! "at the garbage place”.

Defendant offered evidence tending to prove that it was customary to check brakes on its vehicles every 300 hours, or about every six to eight weeks; that the records indicated that this truck had last been repaired in June 1957, before the collision a year later. No records of inspection were offered later than the above. Defendant maintained a garage called the “Department of Refuse Garage” for the repair of vehicles used in the garbage department.

Defendant contends that the court erred in refusing to direct a verdict in its favor since it is undisputed that the vehicle involved in the collision was being used for street cleaning, its operation was a governmental function for which the City is not liable in damages, citing the case of Lober v. Kansas City, 74 S.W.2d 815 (Mo.Sup.).

On the other hand, plaintiff asserts that the negligence of defendant did not result from the governmental function of the City, but from the operation of a garage by the City, and for such negligence the City is not immune, citing Dallas v. St. Louis, 338 S.W.2d 39 (Mo.Sup.).

The instant case was tried and submitted on the theory that the accident was due to defective brakes and to the failure of defendant to inspect and repair them after notice of the defective condition. There was substantial evidence to establish defective brakes as the cause of the collision; that this condition had existed for a long period of time; and that defendant knew of the condition and had the vehicle in the garage with opportunity to make proper inspections and repairs.

In the Dallas case the plaintiff sought to recover damages from the City for the wrongful death of her husband. The City filed a motion to dismiss her petition because it did not state a claim upon which relief could be granted. The motion being sustained and judgment of dismissal entered, plaintiff appealed. The plaintiff’s petition alleged “that Dallas had been employed by the City as a motor vehicle mechanic ‘in the City Refuse Division Garage * * * wherein the City * * * operates a garage for the servicing and maintenance of motor vehicles owned and operated by the City, * * * that at the time the said James O. Dallas received the injuries resulting in his death he was engaged in working upon and servicing a garbage and ref me pick-up truck * * *; that in the operation of said service and maintenance garage the defendant City was engaged in a proprietary activity and was not then and there performing a governmental function’

The sole question presented in the Dallas case was whether, under the facts pleaded in the petition the City was acting in its governmental or in its corporate capacity in the establishment and operation of the garage. In its brief the City asserted that the garage was used solely for servicing garbage trucks. The court found that not to be true and then said: “We must dispose of this appeal on the allegation that the city owned and operated the garage for the maintenance and repair of city owned motor vehicles' whether used in the per formance of a governmental or proprietary function”. The opinion discussed at length the cases of Oklahoma v. Foster, 118 Okl., 120, 247 P. 80, 47 A.L.R. 822, and City of Houston v. Shilling, 150 Tex. 387, 240 S.W. 2d 1010, 26 A.L.R.2d 935. It also said: “In 26 A.L.R.2d 944, under the caption ‘Operation of garage for maintenance and repair of municipal vehicles as governmental function,’ is digested opinions of the states that have ruled the question. From a consideration of these cases, the author concludes: ‘It has been quite generally held in the cases which have arisen that the operation of a garage for repair and maintenance of municipal vehicles is, regardless of the function the vehicles themselves may be engaged in, a proprietary or corporate function, such as will render the municipal corporation liable for injuries resulting from the negligent operation, maintenance, or repair of vehicles by the employees of the garage.’ ”

In remanding the Dallas case our Supreme Court said: “In City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R.2d 935, the Supreme Court of Texas goes further than is necessary in the instant case”. The same is true in the case at bar. The evidence in the instant case does not support defendant’s assertion that only garbage trucks were repaired at the garage in question. In fact, the transcript reveals that garbage trucks are the responsibility of the Motor Equipment Division, as are all city vehicles. This division maintains more than one garage, and the garage that the garbage truck was inspected and repaired by is called the Department of Refuse Garage, and that particular garage repairs vehicles for other departments, other than the Refuse Department.

The case of Lober v. Kansas City, 74 S.W.2d 815, upon which defendant relies was fully discussed in the Dallas opinion and held not to be controlling. We rule the contention against defendant.

But defendant complains that certain vital testimony, contained in the deposition of Willie Anderson, was inadmissible and should have been excluded upon its objection. It says his testimony concerning the condition of the brakes, the City’s knowledge thereof, and its opportunity to repair constituted an admission against interest by an employee, and was not admissible against the principal. It cites and relies on our holding in Davis v. Sedalia Yellow Cab Co., Mo.App., 280 S.W.2d 869, 870. Anderson’s testimony by deposition, he not being present in court, was admissible as direct evidence of the existence of relevant and substantive facts. He was an eligible witness and, not being present in court, his deposition was admissible. It should not have been excluded. The facts here and those in the Davis case are dissimilar.

Defendant assigns error in the giving of plaintiff’s Instruction 7 because “There is no evidence to support the submission that the aggravation of respondent’s hernia was rendered more difficult to cure, or that his condition was rendered more serious, as a result thereof”. Plaintiff testified in detail concerning the size and condition of his pre-existing incisional hernia, before the collision occurred, and to his condition after the accident. According to his testimony, there was a material widening between the lips or edges •of the tissue over the weakened area under the abdominal skin. He stated that he had been medically advised, prior to the accident, that surgery would not be required, that a binder would hold him safely. There was medical evidence to the effect that an operation to cure the condition, existing afterward, would be required, and that it would be a difficult operation because of the previous operation and its effect on plaintiff’s condition. Defendant’s contention lacks merit.

It is next urged that the verdict is excessive. The evidence is to the effect that plaintiff’s automobile, valued at $198 was a total loss. Surgery fees for an operation would cost $250, hospital and incidental fees, from $300 to $400; X-Rays cost $90; and doctor bills were $40. It is not shown how much time he might lose from work because of the operation, or that he will be made well.

In determining whether a verdict for personal injuries is excessive each case must be decided on its own peculiar facts. As stated in the case of Breland v. Gulf, Mobile and Ohio Railroad Co., 325 S.W.2d 9, 16, Mo.Sup.: “An appellate court should not interfere with the action of the jury in this respect unless the injustice of the size of the verdict is manifest. * * * Consideration must be given to the purchasing power of money, and we must bear in mind the inroads inflation had made on the bargaining power of the dollar at the time of the rendition of this verdict (January, 1958). The failure of the trial judge to set aside the verdict as excessive is significant”. • We are inclined to follow, and not interfere with, the conclusion of the jury and the trial court in the instant case.

The judgment is affirmed.

All concur.


author: RUARK, Presiding Judge. STONE, Judge.

text:
    Daisy BROWN, Plaintiff-Respondent, v. The KROGER COMPANY, a corporation, Defendant-Appellant.
    No. 8022.
    Springfield Court of Appeals. Missouri.
    June 15, 1962.

      Henson & Henson, Poplar Bluff, for defendant-appellant.
    Briney & Welborn, Joe Welborn, James E. Spain, Bloomfield, Byron Kearby, Poplar Bluff, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is an appeal from a judgment on a verdict of $12,500 in favor of plaintiff-respondent Daisy Brown, on account of the aggravation of a varicose vein condition.

On February 28, 1958, plaintiff, a housewife (age 44 years at time of trial on May 1, 1961), was shopping in defendant’s supermarket. She undertook to take a six-pack carton of Pepsi-Cola from a low shelf and place it in her shopping cart. The carton was an old one, the bottom was discolored “like it had been wet,” one side of the bottom came loose, and a bottle fell to the floor and broke. A piece of glass made a cut, about one inch long, on the shin of plaintiff’s left leg. Further details of this occurrence will be found in Brown v. Kroger Co., Mo., 344 S.W.2d 80. After the occurrence the store manager took plaintiff across the street to a Dr. Turner, who cleansed the cut and put a band-aid over it. She returned to the doctor the next day and the process was repeated. Then she went to Michigan, stayed not to exceed two weeks, and returned home. The wound stayed sore, became inflamed, and caused her considerable pain. Some (from) ten days to four weeks after the incident of the cut, she went to her own physician. He found her suffering from phlebitis, an inflammation resulting in a swollen leg, and a sore or ulcer on the front of the leg. Her physician treated her and put a restrictive bandage on her leg which plaintiff wore for several weeks. During this period the condition was very painful and plaintiff sat with the leg propped in a chair a good part of the time and could not do her housework. She used crutches part of the time. In June 1958 the doctor operated on the leg and took two veins out of the front of the leg. Plaintiff remained in the hospital for one week. Her after-treatment consisted of the injection of a sclerosing agent in other veins in the front of the leg, ointments and a bandage. It was two weeks before she could get around, and after that she “just crippled around” for awhile. Thereafter her leg was painful around the cut place and sometimes burned and ached “all the way up to my hip.” At time of trial she still wore a band-aid over the sore place. Her doctor testified that the ulcer or sore place would heal but that the damage from infection to the veins and lymphatic system in the leg would remain; that the calf and ankle of her left leg were one-half inch larger around than the right calf and leg; that in his opinion the condition, known commonly as milk-leg, would continue to be painful.

As to plaintiff’s previous condition: In 1947 or 1948, following birth of a child some ten years before the incident here involved, plaintiff had developed a varicose vein condition which resulted in her being hospitalized, and the vein on the inside of her left leg, from groin to ankle, was removed. She testified that after about three weeks this gave her no more trouble.

In 1954, some four years before the incident here involved, a hammer had been knocked off a stepladder and in falling bumped the shin of her left leg. It did not break the skin, but plaintiff developed trouble with the leg, was hospitalized for three days, and was treated with heat. She says this condition “cleared up in just a few weeks.” Her physician thereafter had warned her to be very careful with her leg and she knew that any blow or cut would “cause more trouble than if it was a normal healthy leg.” Her physician in the 1954 incident was the same one who treated her in respect to the incident here involved. However, during his treatment of her, and in the removal of the two veins from the front of her leg, he did not discover, and did not know of, the fact that she had previously had a vein removed from the entire length of this leg in 1947 or 1948. She gave him no history of it.

Appellant’s first contention is that plaintiff did not make a submissible case because (a) there was no evidence of negligence on the part of defendant, (b) there was no evidence of knowledge of a defective soda carton, (c) there was no proof that the container involved was defective, and (d) plaintiff was guilty of contributory negligence as a matter of law in permitting the cut to become infected.

As to (a), (b), and (c) above we think the question is foreclosed. In Brown v. Kroger Company, Mo., 344 S.W.2d 80, the Supreme Court ruled on the submissi-bility. As nearly as we can tell, the decision was based on identical or almost identical evidence. We are not inclined to overrule the Supreme Court as to those matters so decided.

As to (d), defendant bases its claim upon the fact that plaintiff, having knowledge of her existing leg condition, went her usual way, in fact went to Michigan; that during the period of ten days to four weeks, until she went to her own physician, she bathed every day or two; that in so doing she would remove the band-aid over the cut and submerge this leg, along with the rest of herself, in water which contained soap and' in which she also had added an antiseptic such as Lysol; and that after so bathing she would replace a band-aid over the cut. “That is what Dr. Turner told me to do.”' In response to a hypothetical question involving the submerging of the leg in soapy water, her personal physician (the one who treated her later) stated only, “I wouldn’t treat it that way.”

Although it is the duty of a person-injured to use the care of a reasonably prudent person to mitigate and not aggravate his injuries, the failure to attempt to mitigate will not bar the plaintiff entirely from recovery. It does not destroy the cause of action for injury. 25 C.J.S. Damages § 33, p. 502; Lokey v. Rudy-Patrick Seed Co., Mo.App., 285 S.W. 1028(12); Cline v. City of St. Joseph, Mo.App., 245 S.W.2d 695, 702. It would therefore seem that the subject is not a proper one to be considered on. a demurrer type motion. But, acting upon the assumption that the defendant intended to contend that the damages sued for were not the proximate result of the wrong suffered, we will consider it.

There is nothing in the evidence which shows that plaintiff’s bathing caused the infection. The nearest approach to it is the answer of the physician that “I wouldn’t have treated it that way.” On the other hand, in doing what she did she was following the advice of the physician to whom she was taken by defendant’s store manager.

From time to time, probably ever since prehistoric man first waded into the river and had his leg nibbled by an ancestor of the crocodile, there has been controversy as to whether bathing is unhealthful. Some students have argued that a contributing cause to the decline and fall of Rome was that leading citizens spent too much time luxuriating in debilitating baths. In at least one American colony, frequent bathing was considered not only unhealthful but slightly immoral. There is today a rather large segment of the population, composed mostly of busy boys, which holds to the belief that bathing, if not unhealthful, is at least inconvenient. We refuse to enter into the dispute further than to say this court does not intend to hold a lady guilty of contributory negligence as a matter of law because she takes a bath every day or two.

Error is assigned because of refusal to strike the testimony of the witness Umfleet, an employee of the store who witnessed the occurrence and later examined the cardboard carton, that a part of such carton “was discolored, like it had been wet,” because such testimony was a conclusion which invaded the province of the jury. Although reference to this testimony was made in Brown v. Kroger Co., supra, Mo., 344 S.W.2d 80, there is no indication that objection had been made or that the point was raised.

Where the facts or premises upon which a conclusion is based can be fairly stated, then the conclusions of a nonexpert witness are not admissible, for the facts themselves can be put in front of the jury. But when it is impossible or extremely difficult for a witness to convey an accurate and actual meaning, and the nature of the thing described may be more clearly and practically conveyed to the jury by a summary of the witness’s impressions, or by comparison with some ordinary object or condition familiar to the court or jury, then the practical administration of justice requires acceptance of the testimony even though it may be, in a sense, the conclusion of the witness.

It can well be argued that practically all so-called statements of fact are in reality the conclusions of the speaker based on the sum total of his impressions in regard to any certain object of discussion, concerning which the various and minute impressions that result in the conclusion cannot readily be communicated, in fact may not be separately recognized or realized by the witness. The practical application of the rule against conclusions is simply a matter of degree. Just how else would a witness, or the reader, for that matter, in intelligible language of 100 words or less, describe the condition as accurately as did the witness without using the word wet or its equivalent? We hold the ruling was not error.

The court overruled defendant’s objections to the introduction of the deposition of Max Merriman, the store manager, in regard to previous occurrences and conditions at the store. The deposition did not purport to cover any phase of the incident in which the plaintiff received her injury. It is contended that since the witness was not a party and was present and available to testify, the deposition should not have been admitted. This contention was raised in the former case (Brown v. Kroger Co., supra, Mo., 344 S.W.2d 80). And the Supreme Court, taking note of the fact that there was no objection on the ground that part of the proffered statements did not tend to show knowledge on the part of defendant but tended to prove negligence, limited its ruling to the question of whether the deposition statements tended to show notice or knowledge. This time the defendant objected because “the testimony offered goes beyond that testimony required to show notice, and is by the plaintiff an attempt to prove negligence by hearsay testimony * * jj. ¿[¡d not Specify what part or portion of the deposition was objectionable for the reason given.

Here again, as was remarked in the previous case, “Defendant did not at the trial and does not in its brief point out wherein the parts of the store manager’s deposition read in evidence ‘included testimony on the issue of negligence.’ It is not apparent to us that any of the admitted statements did not pertain to matters tending to show knowledge on the part of the defendant through its store manager.” Nor are we able to say from reading the several pages of the deposition that any portion of it does not bear on the question of notice or knowledge. “It is elementary that evidence that is relevant and material for one purpose cannot be excluded solely because it might be inadmissible for some other purpose.” Houfburg v. Kansas City Stock Yards Co. of Maine, Mo., 283 S.W. 2d 539, 549; Louis Steinbaum Real Estate Co. v. Maltz, Mo., 247 S.W.2d 652, 656, 31 A.L.R.2d 1052. The defendant made no request for a limiting instruction, and we do not find that the evidence was improperly or unfairly used. The contention of error is overruled.

In the argument plaintiff’s counsel stated, “ * * * the manager of Kroger’s told you in this deposition, they had had previous accidents of the same kind, and within the space of a year, on three occasions where the cartons — ” Here appellant interposed an objection to reference to three occasions. Respondent’s counsel apologized and said he meant to say two occasions or “one and possibly two.” Defendant’s objection was sustained. The court stated, “The testimony was by their manager, by deposition, that it had one previous accident where a Pepsi-Cola or some sort of soft drink had fallen through the bottom of a carton, and possibly two.” Thereupon defendant moved to discharge the jury and declare a mistrial. Appellant complains because “the statement of the court was not an exact quotation of the evidence, placed special emphasis on the testimony, and amounted to a comment upon the evidence by the court.”

The statement of the court appears to have been directed to the lawyers in explanation of the ruling. It was a fair and accurate summary of the evidence which was the basis of the objection. It did not emphasize or minimize the importance of such evidence, nor did it indicate that more or less weight should be given it than to any other evidence. We are convinced there was no error in the court’s conduct in this respect, and that, had it been error, it was harmless.

At the close of the evidence the jury was handed forms of verdict for plaintiff and for defendant, these on one sheet of paper, and given the usual instruction as to method of signing and returning the verdict. Subsequently they returned the paper. At the top was a plaintiff’s verdict signed by the foreman. At the bottom of the sheet, at the left-hand side, presumably under the blank defendant’s verdict, eight other jurors had signed.

“The Court: Mr. Whitlow, I am directing my inquiry to you as foreman. Was the verdict of the jury, as finally arrived at, a unanimous verdict?

“Mr. Whitlow: No.

“The Court: How did you stand numerically, without saying whether you were for the Plaintiff or the Defendant, that is, were you six and six or eight to four or nine to three?

“Mr. Whitlow: Nine and three.

“The Court: Did the nine intend to return a verdict for the Plaintiff or the Defendant?

“Mr. Whitlow: For the Plaintiff.”

Thereupon the court prepared new forms of verdict, this time on separate sheets, and again instructed the jury that if all agreed the foreman would sign; that if all did not agree, nine or more could return a verdict. But in that event all those who did agree should sign. Some four minutes later the jury returned with a verdict for plaintiff signed by the foreman.

“The Court: (To counsel, after reading the verdict) Do either of you want to poll the Jury and ask any questions?”

Counsel on both sides answered, “No, sir.”

“The Court: Is that the verdict of you all?

“The Jury: (General assent) Yes, sir.”

Thereupon the verdict was received.

Appellant contends that its objections to resubmitting the verdict on separate sheets, and its motion for a mistrial, should have been sustained.

We think the action of the court was proper. Whenever a verdict is returned by a jury it should be examined by the court, and if it is found to be ambiguous, inconsistent, or otherwise defective, the attention of the jury should be called to it and opportunity offered to correct the error before such verdict is finally received and recorded. In this instance it is obvious that the eight concurring jurors were simply mistaken in signing at the bottom of the page. The final verdict was assented to by all the jury; and counsel, although afforded the opportunity, did not request that the jurors be polled. This, then, became the verdict which was received and recorded.

The final assignment is that the verdict is excessive, and that the damages are so grossly excessive as to indicate passion and prejudice.

There are two kinds of excessive verdicts, (a) One is that in which the jury made an honest mistake and allowed a disproportionate sum. Such mistake can be cured by ordering a remittitur of a portion of the sum allowed, (b) The other is a verdict so grossly excessive as to indicate bias and prejudice, in which the jury was guilty of misconduct in fixing an excessive figure, usually as a result of prejudice engendered during the course of the trial. This requires that the verdict be vitiated and a new trial be ordered. Skadal v. Brown, Mo., 351 S.W.2d 684, 689-690; Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157, 159; Weber v. St. Louis Public Service Co., Mo.App., 232 S.W.2d 209, 211; Parks v. Thompson, 363 Mo. 791, 253 S.W.2d 796, 798-799. Appellate courts do not possess the wide latitude of discretion of trial courts, and they do not ordinarily infer bias and prejudice simply because of the size of the verdict. We do not find in the record anything likely to have engendered bias or prejudice, or anything to indicate that the jury did not faithfully and honestly discharge its duty to the best of the ability of its members. We see no basis for the claim of a verdict so grossly excessive as to show bias and prejudice so as to require the ordering of a new trial. We are, however, concerned with the question of whether the verdict was simply excessive.

There is no precise rule by which we may determine whether a verdict is excessive. Each case must be decided on its own facts, due regard being given to the purchasing power of the dollar and the rule of reasonable uniformity, with consideration being given to the better position of the jury and the trial judge to measure the damages. The plaintiff of course is entitled to recover for the aggravation of her leg condition, but she is not entitled to recover damages for those conditions which existed before her injury, or conditions not the direct and proximate result of defendant’s negligence. Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S.W.2d 698, 701; Thompson v. Healzer Cartage Co., Mo., 287 S.W.2d 791, 794; Belisle v. Wilson, Mo., 313 S. W.2d 11, 18.

A hypothetical question asked of plaintiff’s physician assumed the previous varicose condition and

“Now, Doctor, do you have an opinion * * * as to whether or not the cut that she received in February, February 28, 1958, caused the condition of her leg as it was when you last saw her on April 29, 1961?

“A. It is my opinion that this woman suffered an inflammation of her left leg as a result of a wound which was incurred on the anterior aspect of her left leg.” But in response to a question on- cross-examination he stated that the condition of her leg as it existed at trial time was “a condition whereby the vein had been cut, according to what the history was, by a piece of glass, resulting in an inflammation of this leg, of the left leg, and of the veins and lymphatic system of the left leg.” He testified, however, that once a person has developed a varicose vein condition, that condition will stay with such person until death; that a varicose vein condition, in and of itself, depending upon its severity and the activity of the person, is painful. Thus it would seem that although plaintiff’s condition was aggravated, she was already subject to a condition liable to be restrictive or painful.

In Walker v. St. Louis Public Service Co., 362 Mo. 648, 243 S.W.2d 92, an aggravated permanent and progressive heart condition of a woman 36 or 37 years old resulted in a verdict for $14,000. It was held excessive by $4,000.

In Weber v. St. Louis Public Service Co., Mo.App., 232 S.W.2d 209, the woman suffered an aggravation of pre-existing phlebitis plus a painful neck. There was medical expense of $100, inability to work for seven months, and thereafter reduction in wages she was able to earn. The swelling continued. The trial court reduced a verdict from $12,920 to $4,920, and this was affirmed.

In Glaves v. Old Gem Catering Co., Mo.App., 18 S.W.2d 564, 568, a 43-year-old waitress suffered a condition resulting in an open sore, swelling and pain, a wage loss of $2,000, medical expense of $250, and a reduction in earning capacity. The court said that an award of $7,500 was “a most substantial one,” but not so large as to indicate passion and prejudice.

Bearing in mind that plaintiff’s pre-existing condition was permanent and likely to be painful if plaintiff is active, and that there was no wage loss, but also considering that the purchasing power of the dollar has declined, we have concluded that the verdict is excessive by at least $3,500. We therefore affirm the judgment subject to the condition that plaintiff will, within 15 days, file remittitur in the sum of $3,500; and if said remittitur be not filed, the judgment is reversed and remanded for new trial on the issue of damages.

McDOWELL, J., concurs.

STONE, J., dissents in separate opinion.

STONE, Judge.

Viewing the evidence in the light most favorable to plaintiff and the verdict [Grimm v. Gargis, Mo., 303 S.W.2d 43, 52—53(16), 74 A.L.R.2d 599; Horrell v. St. Louis Public Service Co., Mo., 277 S.W.2d 612, 618(12)], and having due regard for the important considerations bearing upon the question as to whether the verdict was excessive [Kiger v. Terminal R. Ass’n of St. Louis, Mo., 311 S.W.2d 5, 15(19); Rodefeld v. St. Louis Public Service Co., Mo., 275 S.W.2d 256, 262(11, 12)], examination of many cases dealing with this problem (notwithstanding that no two cases are poured in the same factual mold) impels the conclusion on my part that, even in this period of easy money and continuing inflation, the verdict was grossly excessive and, with respect for the rule of reasonable uniformity of awards for similar injuries and disabilities, a judgment for more than $7,500 cannot be justified and should not be permitted to stand. Agreeing with the holding in the principal opinion that nothing indicates misconduct by the jury in assessing damages in an excessive amount as a result of bias and prejudice [Skadal v. Brown, Mo., 351 S.W.2d 684, 690(14)] and thus that the mistake in returning an excessive verdict can be cured and corrected without a new trial, I would require, as a condition to affirmance, a re-mittitur in the sum of $5,000. For that reason alone, I dissent.

      . Stipp v. Tsutomi Karasawa, Mo., 318 S,W.2d 172, 175; Phegley v. Graham, Mo., 215 S.W.2d 499, 505, 6 A.L.R.2d 382; King v. City of St. Louis, Mo.App., 155 S.W.2d 557.

      . See Croak v. Croak, Mo.App., 33 S.W. 2d 998, 1002; Thompson v. Healzer Cartage Co., Mo., 287 S.W.2d 791, 794;, Murphy v. Southern Pac. Co., 31 Nev. 120, 101 P. 322, 328.

      . See Hughes v. Maryland Casualty Co., 229 Mo.App. 472, 76 S.W.2d 1101, 1103; Smith v. Kansas City Rys. Co., 208 Mo.App. 139, 232 S.W. 261, 263; Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. 415, 417.

      . Brawley v. Esterly, Mo., 267 S.W.2d 655, 662; Schmidt v. Pitluck, Mo.App., 26 SW.2d 859(8); Kirchof v. United Rys. Co. of St. Louis, 155 Mo.App. 70, 135 S.W. 98, 101; Merritt v. Kinloch Telephone Co., 215 Mo. 299, 115 S.W. 19, 22; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233, 237; Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043, 1047; Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.2d 756, 761.

      . See Martin v. Mercantile Trust Co., Mo., 293 S.W.2d 319, 329; Grimm v. Gargis, Mo., 303 S.W.2d 43, 51, 74 A.L.R.2d 598.

      . Heier v. Funsch, Mo.App., 61 S.W.2d 253, 255-256; Chervek v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 599, 605.

      . Blackman v. Botsch, Mo.App., 281 S.W.2d 532, 535; Kaimann v. Kaimann Bros., Mo.App., 182 S.W.2d 458, 462; Kiley v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 666, 672; Singleton v. Kansas City Baseball & Exhibition Co., 172 Mo.App. 299, 157 S.W. 964, 966; Turley v. National Ammonia Co., Mo.App., 299 S.W. 53, 55.

      . Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120, 127; Cline v. City of St. Joseph, Mo.App., 245 S.W.2d 695, 702-703; Wofford v. St. Louis Public Service Co., Mo., 252 S.W.2d 529, 534.

      . Other cases on aggravation of varicose . vein condition are Pembor v. Marcus, 307 Mich. 279, 11 N.W.2d 889, (with other . damages) $5,000-plus for personal injuries, remittitur of $2,500 required; Davis v. Gibbs, 23 N.J.Super. 558, 93 A.2d 206, $5,000 field excessive and new trial ordered; Mire v. St. Paul Mercury Indemnity Co., La.App., 103 So.2d 553, $10,045 remitted to $6,645; Lopez v. Atchison, T. & S. F. Ry. Co., 60 N.M. 134, 288 P.2d 678, (total inability to work) $25,000 not so excessive as to require a new triaL


author: SPERRY, Commissioner.

text:
    Grover C. STOTTLEMYRE, Plaintiff-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Defendant-Appellant.
    No. 23497.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Hilary A. Bush, Paul E. Vardeman, Jr., Byron Kent Snapp, Johnson, Lucas, Bush & Vardeman, Kansas City, for appellant.
    Charles F. Lamkin, Jr., John I. Moran, Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff sued defendant for damages in the sum of $15,000. for personal injuries sustained by him when a tractor-trailer, being operated by him, was struck by a switch engine of defendant. Trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $4,000. Defendant appeals.

Plaintiff was proceeding south along Mulberry Street, in Kansas City, Missouri, near where it intersects with St. Louis Street, which runs east-west. Defendant’s northeast bound train struck the truck at this intersection. Plaintiff’s case was pleaded and submitted on humanitarian and primary negligence. Defendant contends that no case was made on either theory because there was no evidence tending to prove that the train could have been stopped or slackened short of a collision, and because plaintiff was guilty of contributory negligence as a matter of law. Since no issue is made as to the amount of the verdict, it is unnecessary to set out the evidence on the extent of injuries.

The evidence was that Mulberry Street runs north and south and the railroad tracks run northeast and southwest; that Mulberry is thirty nine and one half feet wide; that there are four sets of tracks and the train was on the southernmost set; that it was 49 feet from the north rail of the first track to the south rail of the last track; that there is a railroad crossing sign located north of the tracks; that it is not an electrically operated sign but an ordinary crossing sign; that it is 448 feet to the first street west of Mulberry, which is Hickory; that there is a clear and unobstructed view to the west from Mulberry to a point beyond Hickory; that there is a flagman’s shanty located on Mulberry, north of the tracks; that, after passing the shanty, a south bound motorist had an unobstructed view, to the southwest, along the tracks; and that St. Louis Street, running east-west, intersects Mulberry a very few feet north of the railroad crossing so that the crossing virtually intersects both streets; that the front of the engine struck the rear dual wheels of the trailer, seven feet from the rear of the trailer; that the over-all length of the tractor-trailer was 45 feet; that the length of the engine was 40 feet; and that the engine was pulling a caboose in a switching operation.

Police officer Scoby stated that he arrived at the scene shortly after the occurrence ; that plaintiff stated that he did not realize danger until the impact occurred; that he was traveling at a speed of 10 to 15 miles per hour; and that he saw the engine when it was 40 to 50 feet southwest of him.

Mr. Hall, a trailer repairman whose shop was located near the crossing, stated that the crossing was rough and pitted; that he was in his shop, but had not actually-begun work, when he heard the crash of the collision, shortly after 8:00 a. m.; that he heard no bell or whistle prior to the collision although he could have done so.

Plaintiff stated that he had operated tractor-trailer vehicles for many years; that he had been operating over this crossing for some 12 years, and was familiar with it; that, always before, defendant had maintained a watchman at the shanty who, upon the approach of a train, would warn traffic; that the watchman was not in sight on this occasion; that, after the front of his truck cleared the shanty, he could see down the tracks to the southwest a block or more; that he was proceeding at a speed of 10-12 or 15 miles per hour, having slowed because the crossing was rough; that he slowed down to possibly 10 miles for the crossing; that he looked both ways and saw nothing; that he proceeded to about the middle of the crossing; that he, again, looked both ways and saw no danger; that he proceeded until the front of the tractor was about at the north rail of the south set of tracks when he saw the engine; that it was from 40 to 50 feet from him; that he speeded up, possibly 5 to 6 miles per hour, to get off of the track; that the engine struck the rear dual wheels, causing damage to the trailer and injuries to plaintiff; that he was traveling in the west lane of Mulberry, about a foot from the center line; that the front of the engine, when it stopped, was about 10 feet out in the street; that the engine, when he first saw it, was traveling at about 10 miles per hour, the same speed as that of the motor vehicle; that plaintiff traveled about 38 feet from the time he first saw the engine until the collision occurred; that, had he seen the engine when he first looked, he could have stopped before reaching the point of impact; that the crossing was rough and pitted (pictures in evidence disclose this condition); that he heard no bell or whistle at any time; that, as he got on the south track, he saw the engine coming slow — “I kind of had my eyes— a car was pulling out of a parking spot— I guess he had been in a cafe — and I was watching the car, to see if he went on, and the train, I probably looked at that again a second time — I can’t remember. I saw he was making no attempt to stop — ■ didn’t have any bells or anything like that. He just kept on coming I kind of stepped on the gas trying to get out of the way, and he caught the rear fender of my trailer, * * He further stated that he did not keep watching the train as it approached; that “well, no, I turned around and looked at the car again. I thought he would stop. He made no attempt to stop that I could see” ; that, when he looked the second time, about halfway across, if the train had been there, moving slow or stopping, it would be like a building standing there, “I see no need of danger, it was just there”.

Plaintiff pleaded and proved the ordinances of Kansas City, Missouri, providing that defendant should maintain a watchman at this crossing who should warn approaching traffic of danger from trains, or, under certain conditions, in lieu of a crossing watchman, a member of the train crew should warn traffic, making it a misdemeanor to move a train over this crossing in the absence of a watchman or a member of the train crew acting as a flagman. The evidence showed that there was no watchman present and that no member of the train crew, or other person, acted as a flagman on this occasion.

Mr. Conger, fireman on defendant’s engine, testified to the following effect: that the switch engine was 40 feet long and was pulling a caboose; that he occupied a seat on the left-hand side of the cab and could see the crossing as the engine approached it; that the speed of the engine was 7 miles per hour; that the hell was ringing; that, when he first saw the tractor-trailer the front of the engine was 20 feet west of the west curb line of Mulberry Street; that he realized that it was not going to stop; that he immediately called to the engineer, “Stop! ” ; that the engineer put the brake into emergency and stopped before the collision; that plaintiff cut the tractor to the right and threw the trailer into the drawbar of the engine; that, otherwise, there would not have been a collision; that the front of the engine was 10 or 12 feet into the intersection when it stopped. He admitted that he had testified by deposition that the engine was 20 feet into the intersection when it stopped and that it could have been stopped, at the speed it was traveling, under the conditions existing, within IS feet after he called “Stop”.

Mr. Davis, defendant’s engineer, said that the bell was ringing when the accident occurred; that he could not see the crossing as he approached because of the engine; that, as the engine approached the crossing its speed was from 6 to 7 miles per hour; that Mr. Conger called, “Stop! ” and he set the brakes for an emergency stop; that the engine was stopped within about 29 feet; that the collision occurred after the engine had stopped; that the engine was from 9 to 10 feet in the intersection when it stopped; that he knew that the crossing is a busy one. He admitted that he stated in his deposition that he was traveling at 6 or 7 miles per hour because he was approaching Mulberry Street and there was no flagman there at the time, no protection, and it was a busy street; that there was a switch crew of three men in the caboose; that he knew there was no watchman on duty then but that after 8:30 a. m. there would be two watchmen; that the accident occurred at 8:10 a. m. and both watchmen were actually there, that they came early, but that neither flagged the crossing; that he did not sound the horn before the accident; that the engine was 20 feet from the crossing when the signal to stop was given; that, at Smiles per hour, he could stop within 15 feet after the air is applied. He admitted that he said in his deposition t “well, by the time he hollered and I made the stop it was fifteen feet”. He stated that, after the engine stopped, the tractor went on across the track, making a right angle turn; that there was a car going north and the tractor pulled to the right to get out of its way. He stated that the front of the engine was 9 or 10 feet into Mulberry when it stopped but admitted that, in his deposition, he stated that it was out from 15 to 20 feet, and stated in-evidence that the sidewalk was 10 feet wide and the engine out 10 feet further.

From the testimony of defendant’s fireman and engineer the jury could have found that, at the speed at which the engine was traveling at the time, it could have been brought to a stop within 15 feet from the time the signal to stop was given. This testimony was by deposition but constitutes substantial proof of the fact. Blanks v. St. Louis Public Service Company (Mo.App.), 342 S.W.2d 272, 277; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400, 410-411. The jury could also have found that the front of the engine, at that time, was 20 feet west of the west curb line of Mulberry; that the collision occurred ten feet east of the west curb line; that the collision occurred some 31 feet east of the point where the front of the engine was at the time when defendant’s fireman realized that the truck would not stop and shouted to the engineer “Stop! ”. Larkin v. Wells (Mo.App.), 278 S.W. 1087, 1088-1089. Plaintiff stated that, as he came onto the north rail of the south set of tracks, the engine was from 40 to 50 feet from him, and the jury could have found that it was at this point that the fireman saw plaintiff and realized that he was not going to stop. If the jury believed the testimony of plaintiff, or of the fireman and engineer, it could have found that defendant could have stopped its engine short of the point of impact. Therefore, plaintiff made a submissible case on the humanitarian theory of negligence.

Defendant says that there is a variance between plaintiff’s testimony and that of defendant’s witnesses as to speeds and distances. Plaintiff is not conclusively bound by his testimony as to those matters. Smith v. Producers Cold Storage Company, Mo.App., 128 S.W.2d 299, 303.

Defendant does not deny its negligence but does contend that plaintiff cannot recover under any theory of primary negli.gence because he was guilty of contributory negligence as a matter of law.

When plaintiff approached the crossing there was no watchman to warn of approaching trains, although always before, when plaintiff used the crossing, there had been a flagman. However, he looked before entering the crossing and saw no danger. He slowed down his speed and changed to a lower gear because the crossing was rough and pitted. When he reached the middle of the crossing he again looked in both directions. He stated that he was watching a man who came out of a cafe and got in a car, watching the car which was pulling out of a parking space, to see if it went on. Defendant’s engineer stated that, at about the time the collision occurred (he said that it was before the collision), a car came toward the north, meeting plaintiff, and that plaintiff’s tractor, at that time, came out on the south side of the track and turned to the right, to get out of the way of the approaching car. The jury could have believed that plaintiff’s mind and attention was momentarily diverted from the danger from a train by ■’imminent danger of collision with the automobile ; that, because his attention was •momentarily distracted by the car, he failed to see the train when he last looked, or before going on the track.

If the train was moving at that time, it was moving very slowly and, according to plaintiff’s testimony and that of IMr. Hall, no bell was being sounded; and the engineer said he did not sound the air horn. Circumstances may exist under which forgetfulness or inattention to a known danger may be consistent with due care, as where the situation requires one to give undivided attention to other matters, or is such as to produce hurry or confusion, or where conditions arise suddenly which are calculated to divert one’s attention momentarily from the danger. 65 C.J.S. Negligence § 120, pages 726-727. Goldman v. City of Columbia, Mo.App., 211 S.W.2d 541, 543. Under the evidence in this case the question of contributory negligence was for the jury, not the court.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, G, is adopted as the opinion of the court. All concur.