author: EAGER, Judge.

text:
    Blanche Leone DAVIS, Respondent, v. CITY OF INDEPENDENCE, Missouri, a Municipal Corporation, Appellant.
    No. 51915.
    Supreme Court of Missouri, In Banc.
    July 11, 1966.

      Walter A. Raymond, Kenneth C. West, and Raymond, West & Cochrane, Kansas City, for respondent.
    S. Ralph Stone, City Counselor, Thomas D. Cochran, Asst. City Counselor, James S. Cottingham, City Counselor, Thomas D. Cochran, Asst. City Counselor, Independence, for appellant.
   EAGER, Judge.

This case was transferred from the Kansas City Court of Appeals by order of this court. It is therefore here as though upon an original appeal; it involves injuries from a fall on a public sidewalk in Independence. The Court of Appeals reversed a judgment for plaintiff in the amount of $6,000 and remanded the case, solely on account of statements made in the argument of plaintiff’s counsel which it held to be improper. No point is made by defendant of the sufficiency of the evidence for submission.

On July 17, 1962, at about 2:30 p. m., a clear, hot day, plaintiff was walking east on the sidewalk at 120 E. Maple in front of the Automotive Supply Company, not far from the public square. The sidewalk sloped slightly downward to the east. A pickup truck of the Automotive Supply Company was parked in the driveway leading into that place; the driveway sloped downward across the sidewalk to the street level. The truck blocked the sidewalk, so plaintiff stepped out into the street, walked behind the truck until she had passed it, turned to her left (north) and walked beside the truck until she reached the sidewalk; she then started east again and, on approximately her second step, stepped into a hole and fell. We shall mention her injuries later, but not in detail. Various photographs of the sidewalk, the driveway, and the hole were offered and received in evidence. A clump of grass was growing out of the hole, and the grass was variously described as from one-half inch to two inches in height. The hole was described as about seven inches “wide” and one and one-half inches deep, after the grass was removed. Plaintiff was familiar with the locality, worked at a location just east of the Automotive Supply, and traveled the sidewalk frequently; but not, she said, with a truck blocking the driveway.

We are not concerned with the question of contributory negligence here. Plaintiff testified that the sidewalk at that point was then in a shadow, that she was looking generally in front of her as she normally did, but that she did not see the hole or the grass until after she had fallen. The partners operating the Automotive Supply Company were also made defendants, but their motion for a directed- verdict was sustained at the close of plaintiff’s evidence, and no appeal was taken from that order.

In his closing argument counsel for plaintiff stated that the defendants had plaintiff examined by Dr. (Nickolas) Pick-ard and that “If the plaintiff’s statement and the statement of the good mother and the daughter and the injuries and suffering was incorrect, don’t you suppose that Dr. Pickard would have been here to tell you after making that examination at their request?” This statement was objected to, and motions to instruct the jury to disregard it and to discharge the jury were made and overruled. In fact, the matter had been discussed with the court and its ruling determined before the argument. The chronology of events was as follows: just before trial it was developed, presumably in chambers, that “there has been but one examination by the defendants” and that defense counsel’s “present intent” was to use “the X-ray man, too.” Dr. Pickard’s name was not specifically mentioned. In the voir dire plaintiff’s counsel told the members of the panel that “defendants say they will produce Dr. Nickolas S. Pickard * * * ” and asked if any one knew him; one or two did. In the opening statement plaintiff’s counsel stated that plaintiff “was examined at the defendant’s request by Dr. Fitzgerald, who, I presume, will be here, * * * ” It may well be that counsel intended to say or possibly said, “Dr. Pickard,” but we do not change transcripts in such particulars. Dr. Pickard did not appear as a witness, and there was no mention whatever of his name in evidence. After the close of all the evidence, counsel for the City asked (in advance) that plaintiff’s counsel be precluded from commenting on the non-production of the doctor because there was no evidence of any examination by him. Thereupon a long colloquy ensued, counsel for plaintiff called attention to the “pretrial” discussion and the voir dire, and offered (to the court, not for the jury) a copy of the doctor’s report; the court refused to receive the exhibit, stated that it thought it had been “stipulated” that Dr. Pickard had examined the plaintiff, and refused to preclude comments on his non-production. The case was not reopened for further evidence. Counsel- for plaintiff seek also to buttress their position by pointing out indirect admissions in the colloquies and objections to the effect that that had been such an examination.

On these facts we have determined that the argument was improper, but we further find that it was not prejudicial. The Court of Appeals did not consider the latter phase of the question. It is almost axiomatic that arguments of counsel must be based upon the evidence. Wartenbe v. Car-Anth Mfg. & Supply Co., Mo.App., 362 S.W.2d 54; Faught v. Washam, Mo., 329 S.W.2d 588; Reese v. Illinois Terminal R. Co., Mo., 273 S.W.2d 217. Statements made by counsel, upon the voir dire examination or otherwise, are not evidence. Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250; Kettler v. Hampton, Mo., 365 S.W.2d 518. Defendant cites Kettler v. Hampton, Mo., 365 S.W.2d 518, and Murphy v. Tumbrink, Mo.App., 25 S.W.2d 133, as holding, under similar circumstances, that such an argument was improper. It will be unnecessary to discuss those cases, as we find here that it was. We need not analyze in detail all of the statements and colloquies that occurred between court and counsel. The court more or less assumed that the parties had agreed that Dr. Pickard had examined plaintiff at the request of all or some of the defendants; perhaps counsel on both sides so understood. But the fact remains that there was no evidence before the jury of that fact or of the examination. If a stipulation is to be used as a basis for the jury’s consideration it should be introduced in some manner before the jury. As already stated, the argument before the jury on this record was improper.

Plaintiff received a verdict of $6,000. Her injuries were rather severe, chiefly to her left elbow; it was necessary to operate on the elbow three or four months after the injury and remove a part of the head of the radius. There was substantial' evidence, objective and subjective, of permanent injury and of resulting disabilities. In view of the size of the verdict, we cannot find that the argument complained of had any prejudicial effect upon the amount of damages, and indeed defendant does not make any point of excessiveness. In such situations it has been held that neither improper argument nor improper evidence should be held prejudicial. Bennett v. Kitchin, Mo., 400 S.W.2d 97, 104; Sparks v. Auslander, 353 Mo. 177, 182 S.W.2d 167; Bobos v. Krey Packing Co., 323 Mo. 224, 19 S.W.2d 630. We consider also the discretion vested in and exercised by the trial court when it overruled the motion for new trial, for the same complaint of the argument was specifically raised there. Defendant asserts that, aside from the amount of the verdict, the argument here may have affected the question of liability, in that it placed upon defendant “a stigma of guilt,” based upon its nonproduction of the doctor. The statements of counsel in argument were not inflammatory in nature; he merely said that if the other evidence of plaintiff’s condition were not true, — “ * * * * don’t you suppose that Dr. Pickard would have been here * * *?” Defendant produced no evidence of plaintiff’s condition, leaving plaintiff’s evidence uncontradicted; the argument, in fact, added little to what the jury already knew. The suggestion of defendant that this argument prejudicially affected the merits is “far-fetched,” to say the least; in the large number of cases considering the general subject of prejudice, few seem to have even mentioned that possibility. In the case of State ex rel. St. Louis-San Francisco Ry. Co. v. Cox et al., 329 Mo. 292, 46 S.W.2d 849, 852 et seq., it appears that the first opinion of the Court of Appeals mentioned such a possibility in reversing the judgment; on rehearing, it reversed itself and affirmed the judgment, necessarily denying any such contention of prejudice. On cer-tiorari, this court specifically found that the argument made (considerably more extensive than ours) was not prejudicial, emphasizing the discretion resting in the trial court; the court there said, among other things, loc. cit. 854: “ * * * the jury must have known that the doctor to whom reference had been made in argument could not have testified to any fact bearing upon the question of liability.” We rule that the argument was not preju-dicially erroneous.

Having determined the first point made, we must look to the other assignments not reached by the Court of Appeals. The next is that counsel for plaintiff overemphasized the matter of liability insurance on the voir dire and that the jury panel should have been discharged. Counsel inquired initially (out of the presence of the jury) for the name of any interested insurance carrier; Mr. O’Laughlin, who was appearing for defendants Reid and Cole, stated that he was employed by Federated Mutual Implement and Hardware Insurance Company, a nonassessable mutual. The court then informed plaintiff’s counsel, after some discussion, that he might ask whether any member of the panel or any member of one’s immediate family was or had been employed by that company. That was the question which was subsequently asked, and there is no complaint of that. However, before that point was reached, counsel asked if anyone knew Mr. O’Laughlin, appearing for defendants Reid and Cole, who was a member of the law firm of Kuraner, Oberlander, Lamkin, Dingman and O’Laughlin. Two of the jurors responded; a Mr. Pfeiffer and Mr. Bailey. Mr. Pfeiffer stated that Mr. Oberlander had represented him “in a case about four weeks ago,” but that the case was settled; Mr. Raymond inquired: “You said that he was your attorney,” to which the answer was yes. Mr. Raymond then inquired (of which specific complaint is made): “Mr. Oberlander personally represented you,” — to which the juror replied : “He represented the insurance company and my boss and I were there.” Thereupon, the following occurred: “Mr. Raymond: And did you get pretty well acquainted with him? Mr. Pfeiffer: Well, I talked to him for two days. Mr. Raymond: Would your experience in working with him there embarrass you now in sitting in this case if the facts call for a verdict against the clients of his firm represented by his partner? Mr. Pfeiffer: I don’t think so. I think that I didn’t know him that well and had no — I know something about the attorney. Mr. Raymond: His firm represented — (italics ours) Mr. Pfeiffer: His firm represented Federated Mutual, and that was the insurance part of it. The insurance company is the one that furnishes the lawyer. Mr. Raymond: The only question is, would that prejudice you? Would you be just as open-minded as if you had never seen Mr. Oberlander? Mr. Pfeiffer: No, I don’t think that I would be influenced.” Mr. Bailey stated that he had a “similar” case about five years ago, and that Mr. Oberlander had represented him “in an insurance case,” presumably the one he had just mentioned; that he did not believe that he would be prejudiced. Thereafter, and immediately following the inquiry about employment by Federated Mutual, counsel asked: “Have any of you people ever served as claim agent for any company, corporation, or insurance company where it was your job to investigate and settle claims?” There was no response.

Motions were made to discharge the jury panel, and denied. The specific complaints made here concern: the questions asking if Oberlander “was your attorney,” if he “personally represented you,” and the partially completed question: “His firm represented * * * ”; also, the question asking whether anyone had “served as claim agent for any company, corporation or insurance company * * * ” in the investigation and settling of claims. Counsel say that the obvious purpose of all this was to inject the question of liability insurance into the case far beyond permissible limits. Such matters are frequently troublesome. We note here that no objections were made at the time to any of the questions asked, but counsel waited until the close of all the general questions on voir dire and then moved only for a discharge of the panel.

It has long been recognized that counsel may inquire concerning any direct interest which the jurors might have in an insurance company shown to be interested in the litigation. Bunch v. Crader, Mo.App., 369 S.W.2d 768; Grimm v. Gargis, Mo., 303 S.W.2d 43, 74 A.L.R.2d 599. There was nothing wrong with the question which counsel asked with the permission of the court. The difficulty developed in inquiring concerning any acquaintance of members of the panel with members of the law firm representing the individual defendants. That inquiry, properly conducted, was entirely legitimate. In response to a question asked of Mr. Pfeiffer if Mr. Oberlander “personally represented you,” the matter of liability insurance was injected. The next few questions and answers followed more or less naturally, but counsel then asked: “His firm represented ⅜ * and the answer (interrupting the question) named the “Federated Mutual”; this, however, was the first mention of that company, and the answer at that point may have detracted from the effect of the later (legitimate) question asking about possible employment; this, for the reason that the jurors may then have connected the name only with Mr. Pfeiffer’s lawsuit.

In Grimm v. Gargis, Mo., 303 S.W. 2d 43, it was held that a somewhat similar colloquy did not require a discharge of the jury, since the “subject developed in a natural manner, was not unduly emphasized” and the court saw “no evidence of bad faith.” In the present case we feel that counsel exceeded the bounds of propriety when he asked, after being told that Oberlander had represented the juror, and that he was the juror’s attorney, whether he had represented him personally, and later — "His firm represented * * *?” If the question concerning personal representation was intended to ascertain whether Ober-lander himself was the lawyer who represented the juror, that question should have been phrased more accurately to that end. However, we consider this subject in its context; counsel and jurors were then referring to other suits and other circumstances; Mr. Oberlander’s firm and its individual defendants were discharged at the conclusion of plaintiff’s case upon a directed verdict; some of the matter was volunteered by the juror; the verdict is modest in amount and is not claimed to be excessive; and the court was not given an opportunity to interfere and direct the inquiry by any objection made during the questioning, but was merely presented with a motion to discharge the panel after all of the general questioning was concluded. We hold that there is nothing inherently wrong in asking members of the panel if any of them have ever been claim agents or adjusters; the question should not be confined to insurance companies. Gooch v. Avsco, Inc., Mo., 340 S.W.2d 665. It was not so confined here, although the question could have been better phrased. In conclusion, we hold that the trial court did not abuse its discretion when it overruled the motions to discharge the panel, since no actual prejudice is demonstrated. Bunch v. Crader, Mo.App., 369 S.W.2d 768.

Next, defendant complains of the giving of Instruction No. 1; this is a very long instruction, constituting per se a convincing argument for the adoption of our Missouri Approved Instructions. It is too long to quote; after hypothesizing sundry physical facts, including the existence of a hole in the sidewalk, its size, and the growth of grass, it submitted: “* * * and that the defendant, City of Independence, knew, or by the exercise of ordinary care should have known of said conditions and dangers, in sufficient time by the exercise of ordinary care to have repaired said sidewalk and remedied said conditions so as to make said sidewalk reasonably safe for pedestrian use prior to July 17, 1962, and that said defendant, City of Independence, failed so to do and was thereby careless and negligent; * * * and that plaintiff walked south into the vehicular portion of said street to circle the rear of said truck; and that she re-entered said sidewalk along the east side of said truck between it and the automobile parked along the north- curb; and that as she walked north along the side of said truck shadows impaired her view of said sidewalk; and that as she turned to continue east on said sidewalk she stepped onto the grass covering said hole and her foot sank down and caught in said hole causing her to trip and fall and be injured; * * *.”

The first complaint of the instruction is that the requirement that the defendant make the sidewalk reasonably safe “prior to” the date of the injury cast an “undue burden” on the defendant. We are not sure that we fully understand this obj ection. It is said that: “This placed upon the City the burden of defending the condition of the sidewalk for pedestrian use prior to July 17, 1962.” In such situations we do not seek to split days; the phrase was equivalent to one reading “prior to the time of injury,” and if defendant had not repaired the hole before July 17, it would not have been likely to do so before 2:30 p. m. on that date; nor did it do so at any time. The jury could not possibly have failed to understand that this phrase imposed a duty to repair before the injury.

The next objection is that the instruction failed to require that the city be allowed a “reasonable time” in which to repair the defect, after notice. Counsel cite Pearce v. Kansas City (1911), 156 Mo.App. 230, 137 S.W. 629, and Fullerton v. Kansas City, Mo.App., 236 S.W.2d 364. In Pearce, plaintiff stepped into a depressed alley; the evidence showed that the condition had been worsening recently on account of traffic through the alley; under these circumstances the court apparently considered the time element as sufficiently important that it justified an express requirement of a “reasonable time” to remedy the defect. In Fullerton, the complaint was that the instruction did not hypothesize that defendant had “sufficient time,” after notice, to make the repair. The present instruction contains that requirement; it specifically hypothesized that defendant “knew, or by the exercise of ordinary care should have known of said conditions and dangers, in sufficient time by the exercise of ordinary care to have repaired said sidewalk * So far as we are concerned, the allowance of sufficient time to repair, by the exercise of ordinary care, is equivalent to the allowance of a “reasonable time.” Any claimed difference seems to us to be hyper-technical. On this point see: Glasgow v. City of St. Joseph, 353 Mo. 740, 184 S.W.2d 412, 416; Scanlan v. Kansas City, 223 Mo.App. 1203, 19 S.W.2d 522 (on a very similar instruction); Merritt v. Kansas City, Mo.App., 46 S.W.2d 275. In Merritt, the court said at loe. cit. 281: “It appears to be the position of appellant that this instruction required of defendant a repair of the defect at the earliest possible date after it knew or should have known of it and excludes the element of reasonable time. That particular part of the instruction toward which this criticism is made requires the jury to find ‘that the defendant knew, or by the exercise of ordinary care could have known of the existence of said hole at said place, if you so find, in time before December 15, 1926, in the exercise of ordinary care to have repaired said hole before said date, but negligently failed to do so.’ To require performance of an act in the exercise of ordinary care implies reasonable time within which to do the thing required. Kingsley v. Kansas City, 166 Mo.App. 544, 550, 148 S.W. 170; Scanlan v. Kansas City, 223 Mo.App. 1203, 19 S.W. (2d) 522, 526.” We note also that M.A.I. No. 22.04 does not even contain a requirement of “sufficient time,” but relies solely on the duty of “ordinary care.” The objection is of no real substance and it is disallowed. It is thus unnecessary to consider whether the evidence here fairly showed that the defect had existed long enough to charge defendant with the duty of repair as a matter of law, — within the exception noted in the Pearce case, supra.

Next, it is said that the hypothesization that the hole “was filled with a growth of grass which * * * tended to conceal the presence of the hole * * *,” was in conflict with plaintiff’s testimony, in that she testified that she did not see the hole or the grass before she fell. No one may confidently say what the plaintiff would have seen had there been an open hole and no grass. But, aside from this, the recital was merely of the physical situation, and the matter was not hypothesized as a basis of liability. The issues of negligence submitted were the presence of the hole (really undisputed), the failure to repair, and plaintiff’s alleged contributory negligence; the presence of the grass could well have had some bearing on the length of time the hole had been there.

Lastly, counsel say that the instruction places upon the City the burden of defending against the acts of the individual defendants; this, because of the hypothesis that their truck was standing in the driveway and plaintiff was required to walk around it, and that a shadow was cast on the sidewalk. Again, these recitals merely presented the physical circumstances, and by no possible conception could the City have been made liable for the negligence of anyone else. Instruction No. 2 covered the subject of concurrent negligence and required that plaintiff must have been injured, solely or concurrently, by negligence of the City. Neither the theory nor the propriety of that instruction is questioned here, and this point is without substance.

Defendant’s last point is as follows: “The Court erred in not allowing the Defendant to give Instruction Number 12 as said instruction was a proper instruction of the law and deprived defendant of a defense and of its right to have the jury consider evidence in its favor.” This wholly fails to comply with the requirement of our Rule 83.05, V.A.M.R. in that it does not state "wherein and why” the ruling of the court is claimed to be erroneous. The assignment in the motion for new trial was no better, and is defective under our Rule 70.02. The point will not be considered.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Kenneth Eugene HUGHEY, Appellant.
    No. 51712.
    Supreme Court of Missouri, Division No. 2.
    July 11, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Frieze & Crandall, Carthage, for appellant.
   FINCH, Judge.

Defendant was convicted of manslaughter by culpable negligence under § 559.070 (all statutory references are to RSMo 1959, V.A.M.S.) and sentenced to imprisonment for five years. His motion for new trial was overruled and he appealed.

The evidence on behalf of the State (the only evidence offered) will support the following recital of facts: The body of John Benjamin Carl, a 15-year-old boy, was found at approximately 6:15 p. m., on November 18, 1964, near the middle of the 600 block of South Hall Street in Webb City, Missouri. The body was found near a telephone pole on the west side of the street, lying at the west edge of the pavement, principally on the shoulder. This was just south of the house of the Packer family at 612 South Hall.

The body was discovered by Pearl Williams, who lived at 626 South Hall. Prior to finding the body, Mrs. Williams had been walking from her house to her car when she heard a thud. At the time she thought it was the sound of a fast-moving automobile hitting a dip in Hall Street where it intersects with Garrison Street at the next intersection to the north. Two or three seconds later a car going south on Hall Street passed Mrs. Williams’ home going very fast. Mrs. Williams estimated its speed at 75 miles per hour. She said, “It was just a flash in front of me and then it was gone.” She did not observe any details about the car or its color or the number of its occupants. The night was dark, misty and rainy and visibility was not very good. She then got in her car and started north and discovered the body of the Carl boy. Mrs. Williams called Mr. Packer, and the police were then notified.

Other neighbors also heard a loud noise at this same time. Mr. Packer described it as like two cars running together and different from the sound of a car hitting the dip at Garrison Street. Mr. Packer was looking after the children and did not go outside until Mrs. Williams came to the door. Pete Cummings, residing at 610 South Hall, heard a loud boom. Mrs. Cummings thought someone might have hit their parked car and went dut and checked it. Gary Compton, 617 South Hall, was watching television and heard a loud noise which sounded like a car hitting the dip but was louder than cars usually made when they did so. Compton went to the window and he saw the taillights of a car going south on South Hall. He also had heard the acceleration of a car after the loud sound and it sounded as though the car had no muffler. He judged the speed of the car at 50 to 60 miles per hour. Burton Clark, 620 South Hall, was watching a newscast and heard what he described as a hollow sound which he estimated as being within 100 feet of his house. He stepped to his front door and when he looked south he saw the taillights of a car going over a rise about a block to the south. The car which Clark had heard sounded like a car without a muffler. Based on the sound, Clark estimated the speed of the car at 55 to 60 miles per hour when it passed his house. C. V. Carl, father of the deceased boy, was at his mother’s home at 627 South Hall. His son Benny came from their home at 606 South Hall to tell his father that supper was ready and then started back to their own home. Mr. Carl shortly heard a noise which sounded like a truck had backfired. He then heard a car go by which had excessive muffler noise or a broken pipe. He learned of his boy’s death when he started back home shortly thereafter.

All of the witnesses fixed the time of the noise by newscasts which they had heard or were watching and fixed the time as being 6:15 p. m., or thereabouts.

The cause of death was established by testimony as being a severe blow to the neck, fracture of the vertebrae in the neck, a crushing of the cord, and hemorrhage of the brain.

That evening the officers searched the area with a flashlight. They found a pool of blood where the body was lying and the boy’s broken glasses were located nearby. Approximately 90 feet north of that point, the officers found a pile of debris on the street consisting largely of dirt which accumulates under car fenders and is knocked off by a sudden blow. There also was some broken glass. One shoe of the Carl boy was found near this debris. The chief of police could not positively identify the source of this debris, but he testified that this was the place where he judged the boy to have been hit.

The following morning, four chrome block letters were found on the west shoulder of South Hall. These were a “C”, an “N” and two “L’s.” Three of the letters were located near where the body was found. The other one was up the street to the north in front of the Cummings house, which was at 610 South Hall. In addition, slivers of paint, some an inch or more in length, were found all of the way from the assumed point of impact to the point where the body was found. These had been washed by the rain off onto the shoulder on the west side.

Defendant and one Ronald Hudnall had met at the Owl Bar in Webb City at about 11:00 a. m., on November 18, 1964. They were there for a time playing shuffleboard and the pinball machine and having a few beers. They next went in Hudnall’s car to Watson’s place at Oronogo, where they stayed an hour or two, again playing shuffleboard and the pinball machine and drinking several beers. Next, they drove in Hudnall’s car to Pete’s Bar in Webb City, where they stayed until after 6:00 p. m. Here they played dominoes and drank more beer. The proprietor and his wife, Mr. and Mrs. Eden, came in between 6:05 and 6:10, and defendant and Hudnall left shortly thereafter. Both Edens fixed the time of departure as being between 6:15 and 6:30. Defendant and Hudnall appeared to be hurrying when they left. Hudnall then drove defendant back to the Owl Bar, about three blocks away, where he had left his car that morning. Defendant told Hudnall that he was going to pick up his girl Mary at the Star Motel in Duquesne, where she worked. He got in his 1956 Lincoln sedan, which Hudnall described as being pink or lavender in color, and drove off. With respect to the condition of defendant when he left Pete’s Bar, the proprietor of the bar testified he could tell from the defendant’s eyes and looks that he had been drinking and was not sober. Speaking of defendant and Hudnall, he said, “I didn’t say they were drunk; I said they were drinking.” The proprietor’s wife said, “They weren’t drunk, but they weren’t sober.” Hudnall testified, “We both were having a pretty good time and we was, I’d say, feeling pretty good.” Hudnall testified that he noticed nothing particularly out of the ordinary in defendant’s driving as he drove away from the Owl Bar.

The owner of the Star Motel testified that promptly at 6:30 p. m., on that same evening the defendant arrived to pick up his girl friend, Mary Kettner, who was an employee of the motel. She noticed nothing unusual about defendant during the five minutes he was there.

At about 11:30 p. m., on that same night the defendant reported to the police department of Webb City that his automobile had been stolen from outside the Owl Bar sometime during the evening, where he and his girl friend had been since about 7:00 p. m. The car was described to the police as a white over pink 1956 Lincoln four-door sedan with 1964 Oklahoma License OW 1426, Motor No. 56WA24383. On March 30, 1965, a Lincoln four-door sedan, located under water in the old Daylight mine shaft just north of Webb City, was brought to the surface. It bore Oklahoma 1964 License OW1426 and the Motor number was 56WA-34383. The front of the hood of the Lincoln was caved in and five of the seven chrome block letters normally spelling “LINCOLN” across the front of the hood were missing. Only the “I” and “O” still remained. These block letters were similar to the letters “L”, “L”, “C” and “N” found on the west shoulder of the 600 block of South Hall Street on the morning of November 19, 1964. Paint scrapings were taken from the hood of the Lincoln when it was removed from the mine shaft. These, with the paint slivers found on November 19, 1964, on the west shoulder of South Hall Street between where the body was found and the apparent point of impact, were sent to the State Highway Patrol Laboratory at Jefferson City. In addition, the clothes of the deceased Carl boy were sent to the laboratory and paint slivers were found on these clothes. The laboratory technician also discovered some paint on the chrome letter “N” which was found at the scene where young Carl was killed. The technician testified that from a microscopic examination, the use of the spectrograph and some chemical analyses by use of solvents he determined that there were three distinct layers of finish. First, there was a beige undercoat, then a layer of light blue enamel, and finally a layer of pale lavender lacquer. This was true of the samples found at the scene, the samples taken from the hood of the car, the particles found in the victim’s clothes, and the paint on the letter “N”. The technician determined and testified that all of each type came from the same batch, of paint. He further testified that the lavender lacquer was not put on the car at the Ford factory because this was a 1956 automobile and the use of lacquer as a finish on cars did not commence until subsequent to 1957.

There was testimony that the most direct route from the Owl Bar to the Star Motel, located at 7th and Duquesne, was to go east from the Owl Bar to Hall Street and then south on Hall, which eventually becomes Duquesne Street. It was 4.6 miles by that route from the Owl Bar to the Star Motel. Of this distance it was four miles from the 600 block of South Hall to the Star Motel. South Hall was a blacktop street which had some chugholes and was rough but it was heavily traveled. Defendant had been questioned at various times by the police, and he always denied being on South Hall that evening. He stated that he left the Owl Bar in his car around 6:00 or a little later, then drove to the Range Line, three-fourths of a mile away, then on the highway to the Katz Drug Store, where he turned left to go to Duquesne and the Star Motel. He stated that he stopped and bought gas and he arrived in his car at the Star Motel at 6:30. The difference in mileage by this route was one and one-half to two additional miles.

The record on appeal shows that a preliminary hearing was held April 14, 1965. A transcript from the Magistrate Court was filed in the office of the Circuit Clerk on April 22, and on the same day the Prosecuting Attorney filed an information charging defendant with manslaughter. Thereafter, on June 7, the first day of the term, defendant waived formal arraignment and entered a plea of not guilty. The case was set for trial on June 21. On June 16 the transcript of the evidence from the Magistrate Court was filed with the Circuit Clerk. On the day of trial, June 21, defendant filed a motion to dismiss on the ground that the transcript of the testimony had not been filed on or before June 7, in conformity with § 544.390, and was not certified by the Magistrate as required by that section. There was no allegation that the transcript was incorrect or that defendant was prejudiced in any way by the delay. When the motion to dismiss was overruled, the case proceeded to trial. No continuance was requested. Actually, there is nothing in the record before us to disclose if or how the transcript of evidence was certified or identified, but, in any event, we rule this point against defendant on the basis of State v. Banton, 342 Mo. 45, 111 S.W.2d 516, and the cases therein cited. As pointed out in that case, this section of the statutes is not jurisdictional. Its purpose is to assure a fair preliminary examination and to preserve the evidence taken. The transcript on appeal herein discloses that counsel for defendant used this transcript of the preliminary hearing for the purpose of cross-examination. Nowhere is it claimed that defendant did not have the transcript in order to prepare his defense, or that the transcript was inaccurate. Use of it at the trial indicates that defendant was asserting and relying on its accuracy. His motion to dismiss is on the theory that the statutory requirements are jurisdictional. We hold otherwise. The purpose of this statute was served in this case.

Defendant next asserts that his motion for judgment of acquittal at the close of the State’s case should have been sustained. Several separate assignments are asserted, but these can be considered together. These assignments assert the propositions that there was no evidence to place defendant at the scene where deceased was hit, that his automobile was not placed at the scene at the time of the impact, that defendant was not placed by evidence in his automobile at the time of the impact, that there was no evidence as to the method or mode of operation of the automobile prior to impact with deceased, that there was no evidence as to what deceased was doing just prior to the impact or to negative the possibility of accidental death of deceased, and that for the above reasons there was no evidence of culpable negligence at any time or of any criminal agency of defendant.

In considering this attack on the sufficiency of the evidence to make a submissi-ble case for the jury, the evidence must be viewed in the light most favorable to the State, assuming the evidence of the State and every reasonable inference therefrom to be true. State v. Perkins, Mo., 382 S.W.2d 701 [3] ; State v. Taylor, Mo., 324 S.W.2d 643, 76 A.L.R.2d 671. It is our judgment that the evidence was of such character as to authorize the submission of this case to the jury and that the evidence is sufficient to sustain the judgment of conviction.

The jury could have found that defendant’s 1956 Lincoln sedan was the one which hit the Carl boy. The automobile pulled out of the waters of the Daylight mine was the defendant’s automobile. The front end of its hood was caved in. Some of the letters spelling the word “LINCOLN” across the front of the hood were missing. Letters corresponding in appearance, size, shape and material to four of the five missing letters were found at the scene where the boy was killed. Three of the letters were found immediately adjacent to his body and the fourth letter nearer to the apparent point of impact. One letter contained some paint which corresponded to paint from the automobile. Paint slivers of varying sizes were found along the street from the point of apparent impact to the point where the body was found, 90 feet away. The paint slivers found on the street, the paint from the clothes of the deceased Carl boy, the paint from the letter “N” found near the scene, and the paint taken from the 1956 Lincoln sedan when it was found, all were analyzed and examined in the laboratory. Each contained three distinct layers of finish — the beige undercoat, the layer of light blue enamel, and the layer of pale lavender lacquer. According to expert testimony, each layer of the various paint particles came from the same batch of paint. The evidence was that these did not come from a car which had been painted with the three coats at the factory because the use of lacquer as a finish was not commenced until after 1957, and this was a 1956 model Lincoln sedan. The coat of pink lacquer had been applied later, making more significant the testimony that the lavender lacquer layer was the same on the paint samples from the four sources.

The evidence and reasonable inferences therefrom also were sufficient to justify the jury in finding that the defendant was the one driving this automobile at the time of impact. Defendant, at around 6:15 p. m., or shortly thereafter, on the day in question, got into this 1956 Lincoln on the parking lot of the Owl Bar and drove off alone for the expressed purpose of going to the Star Motel at the corner of 7th and Duquesne to pick up his girl. At about 6:30 p. m., on the same evening, the defendant, still driving his automobile, arrived alone at the Star Motel, where he picked up his girl Mary. The most direct route between these two places was via South Hall Street, where the Carl boy was hit and killed. There was evidence that the defendant had reported to the Webb City police about 11:30 p. m., on that same day, that his car had been stolen from the Owl Bar parking lot sometime after 7:00 p. m., while he and his girl Mary were in the bar, but this claim of theft of the car related to a time subsequent to the time when this impact occurred. The jury certainly could have found that defendant was driving the car between approximately 6:15 and 6:30 p. m., on that day.

There was sufficient evidence to justify the jury in finding the defendant guilty of culpable negligence in the operation of his automobile. It was dark and the weather was rainy or misty and visibility was poor. In spite of that fact, the automobile was driven through a populated area at a high rate of speed, fixed by witnesses as somewhere between 50 and 75 miles per hour. The impact caved in the front part of the hood and was of such force as to knock the victim a distance of 90 feet. There was evidence that although the impact was loud enough to be heard by many of the neighbors in the area at a time when they were inside their houses listening to newscasts, the automobile did not stop. The jury could have found that the defendant, although aware of such an impact, continued on at a high rate of speed and left the scene without stopping to check the boy whom he hit. There was evidence that the defendant had been at various taverns between 11:00 a. m., and 6:00 p. m., drinking beer during that period, and that when he left Pete’s Bar between 6:05 and 6:10 p. m., he was not sober. This was sufficient evidence to make a submissible case on the question of culpable negligence. We have read the various cases cited by defendant in his brief. They correctly announce the rule that negligence, to be culpable within the meaning of the manslaughter statute, must be more than ordinary common law negligence and must indicate a reckless or utter disregard for human life. They further hold that a defendant cannot be convicted solely because he has been drinking, but this is a fact, if established, which may be considered along with other facts in determining whether there was culpable negligence. State v. Feger, Mo., 340 S.W.2d 716 [19]; State v. Adams, 359 Mo. 845, 224 S.W.2d 54 [6]. Numerous cases, including several cited, have held that evidence of conduct no more flagrant than here was sufficient to make a sub-missible case under the manslaughter statute. See State v. Simler, 350 Mo. 646, 167 S.W.2d 376; State v. Adams, Mo., supra; State v. Millin, 318 Mo. 553, 300 S.W. 694; State v. Feger, Mo., supra; State v. Duncan, Mo., 316 S.W.2d 613; State v. Daugherty, Mo., 320 S.W.2d 586. Some of these cases were reversed and remanded on account of trial error, but the opinion in each case held that the evidence was sufficient to make a submissible case on the question of culpable negligence.

Defendant makes the point that there is no evidence to show what the deceased Carl boy was doing immediately prior to the impact or to show that this was not an accidental death. It is true that there is no direct evidence as to what the deceased boy was doing, any more than there is eyewitness evidence as to defendant’s presence or the method of operation of his automobile. Such direct evidence is not necessary. The fact that the driver of the car, after hitting the boy and knocking him 90 feet, continued on at a fast rate of speed and did not stop to check as to the boy’s condition, is some evidence that this occurrence was not an accident. If it had been, the driver could have been expected to stop. In our judgment, the jury was justified, under all the facts and circumstances in evidence and the inferences therefrom, in concluding that this was not an accident and that the defendant was guilty of culpable negligence. His conduct did show a reckless disregard for human life.

Defendant next complains of error in the admission of testimony of Mrs. Williams that the car she saw passing at about 6:15 p. m., was being driven at a speed of 75 miles per hour. She expressed this by saying that the speed limit was 25 miles per hour and that the car was going three times that speed. Defendant cites and relies on Chance v. Atchison, T. & S. F. Ry. Co., Mo., 389 S.W.2d 774. In the Chance case the witness did not testify as to his judgment of speed but sought only to testify that the speed was “excessive.” The court held that this was a conclusion and as such was inadmissible as an invasion of the province of the jury. However, the opinion also recognizes that a person, when qualified, may be permitted to testify concerning the speed of a vehicle based on his observations. Mrs. Williams testified that she had been driving a car since 1921 and said that she had had experience in estimating speeds from her own experience in driving. That made her testimony admissible. It is true that on cross-examination she stated that she was not a good judge of speed, and gave some answers which might affect the weight the jury would give to her testimony as to speed, but this cross-examination would affect only the credibility of her testimony and not its admissibility.

Defendant also complains as to the testimony of witness Clark estimating the speed of the car at 55 to 60 miles per hour as it passed his house at 620 South Hall. No objection was made to this testimony at the time. A motion to strike, made at the close of his testimony, was not sufficient to raise or preserve the question. We find no error here. We also note that a third witness, Compton, testified without objection to a speed of 50 to 60 miles per hour.

Complaint also is made in the refusal of Instructions Nos. 14, 15 and 19, which were requested by defendant, but nothing is preserved for review as to any of these instructions. The motion for new trial and the points relied on merely state that the court erred in refusing these particular numbered instructions, without assigning any reason whatsoever therefor. This is wholly insufficient. State v. Butler, Mo., 353 S.W.2d 698; Criminal Rule 27.20, V.A.M.R.

Finally, defendant complains of the giving of Instruction No. 5. That instruction was as follows:

“The Court instructs the jury that the defendant, Kenneth Eugene Hughey, is charged with Manslaughter, that is, by causing the death of John Benjamin Carl, by the culpable negligence of him, the said defendant, Kenneth Eugene Hughey.

“ ‘Culpable negligence1 is the omission on the part of one person to do some act under given circumstances which an ordinarily careful and prudent person would do under like circumstances, showing on the part of such person a reckless disregard for human life or limb, or the doing of some act under given circumstances which an ordinarily careful and prudent person under like circumstances would not do, showing on the part of such person a reckless disregard for human life or limb, by reason of which omission or action another person is directly endangered in life or bodily safety.

“The Court instructs the jury that to make negligent conduct culpable negligence or criminal, and to make it manslaughter, if death is caused by it, the particular negligent conduct of the defendant must be of such reckless or wanton character as to indicate on his part an utter indifference to the life of another who is killed as the result thereof. It is only from such culpable negligence that a criminal intent may be shown, and in the absence of such criminal intent the crime of manslaughter has not been proved.

“If, therefore, you find and believe from the evidence in this case, beyond a reasonable doubt that the defendant, Kenneth Eugene Hughey, on or about the 18th day of November, 1964, in the County of Jasper and State of Missouri did recklessly and feloniously with culpable negligence drive the automobile mentioned in evidence with great force and violence against the person of John Benjamin Carl and as a result thereof the said John Benjamin Carl received injuries to his head and body and as a result of said injuries the said John Benjamin Carl died, you will find the defendant guilty of manslaughter and assess his punishment at imprisonment in the State Penitentiary for not less than two years nor more than ten years, or by imprisonment in the County jail for not less than six months, or by a fine not less than $500.00 or by both a fine not less than $100.00 and imprisonment in the County jail for not less than three months, and unless you find the facts so to be you will acquit the defendant.

“ ‘Felonious’ as used in this instruction means wickedly and against the admonition of the law, that is unlawfully.”

The complaint made in the motion for new trial and in points relied on is that the court failed to hypothesize the actions of the defendant which would constitute culpable negligence and that it told the jury that they could find the defendant guilty from the mere fact that deceased was struck with great force and violence. These objections are not well taken. The instruction did hypothesize the actions of the defendant which the jury must find, and further required the jury to find that these were done “recklessly and feloniously with culpable negligence.” The instruction properly defines “culpable negligence” and “felonious.” The jury was required to find that the car was driven by defendant against the person of deceased with great force and violence and was done recklessly and feloni-ously with culpable negligence. The jury was instructed further that in order to convict they must find that defendant drove the car wickedly and unlawfully, omitting to do some act under those circumstances which an ordinarily careful and prudent person under like circumstances would have done, or doing an act which such careful and prudent person would not have done, showing by such omission or act a reckless disregard and utter indifference for human life or limb, by reason of which the deceased Carl boy was endangered and received injuries resulting in his death. This was a sufficient instruction. See State v. Beckham, 306 Mo. 566, 267 S.W. 817 [4] ; State v. Carter, 342 Mo. 439, 116 S.W. 21 [1]; Raymond, Missouri Instructions, Vol. 2, §§ 5872, 5873. The case of State v. Duncan, Mo., 316 S.W.2d 613, cited by defendant, says nothing to cause us to reach a contrary conclusion. Actually, Instruction No. 1 from that case to which defendant refers was held not to be prejudicially erroneous, when considered with other instructions, but the court stated that the instruction did not have its approval. The Duncan opinion does not state that hypothesization greater than that contained in Instruction No. 5 is required.

The judgment is affirmed.

All of the Judges concur.


text:
    Fred John MAYER, Appellant, v. Carol Jean ORF, Respondent.
    No. 51085.
    Supreme Court of Missouri, Division No. 2.
    July 11, 1966.
    James M. Byrne, St. Louis, for appellant.
    Evans and Dixon, Ralph C. Kleinschmidt, St. Louis, for respondent.
   FINCH, Judge.

A verdict for the defendant was rendered by the jury in plaintiff’s suit for $50,000 for personal injuries. Plaintiff’s motion for new trial was overruled and this appeal followed.

The sole issue presented to this court on appeal is whether Instruction No. 1, a credibility instruction tendered by defendant, was prejudicially erroneous.

The nature of this single issue makes a detailed recital of the evidence unnecessary, It is sufficient to state that the case involved a collision which occurred at night in the inside lane of westbound Interstate 70 in St. Louis County. Plaintiff’s car was stopped crosswise without lights in that lane and defendant came over the crest of a hill and collided with plaintiff’s automobile. Plaintiff submitted on humanitarian negligence for failure to stop and defendant submitted tin primary negligence on her counterclaim. The evidence as to when defendant did or could have seen plaintiff and as to the distance in which she could have stopped was conflicting.

Instruction No. 1 was as follows:

“The Court instructs the jury that you are the sole judges of the credibility of the witnesses and of the weight and value to be given their testimony. In determining as to the credit you will give to a witness, and the weight and value you will attach to a witness’ testimony, you shall take into consideration the demeanor of the witness, the conduct and appearance of the witness upon the stand; the interest of the witness, if any, in the result of the trial; the motives actuating the witness in testifying; the witness’ relation to, or feeling for or against, the respective parties; the probability or unprobability of the witness’ testimony, as well as all other facts and circumstances given in evidence, and you are at liberty to accept or reject all or any part of such testimony.”

Plaintiff is critical of the intelligibility of Instruction No. 1 generally, but the only complaint asserted in his brief to demonstrate error is focused on the concluding clause, “and you are at liberty to accept or reject all or any part of such testimony.”

Instruction No. 1, up to the questioned final clause, is essentially the same credibility instruction which has been approved repeatedly over a long period of time. Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749, 755 [9]; Esstman v. United Railways Co. of St. Louis, Mo., 232 S.W. 725, 728 [7]; State v. Turner, Mo., 320 S.W.2d 579, 585 [11-14]. If the instruction had stopped at that point, it clearly would not have been erroneous.

Did the addition of the final clause, as plaintiff asserts, improperly tell the jury that they could accept or reject testimony arbitrarily, regardless of standards for judging credibility, in effect telling them that they could accept testimony they disbelieved and reject testimony which they believed? We think not.

In the first place, the instruction tells the jury that they are the sole judges of the credibility of witnesses and the weight to be given to their testimony. This clearly is the law in Missouri. Bell v. Pedigo, Mo., 364 S.W.2d 613, 616 [4]; Wilhoit v. Fite, Mo., 341 S.W.2d 806, 816 [15]. They even may disbelieve the testimony of a witness which is uncontradict-ed and unimpeached. Schaefer v. Accardi, Mo., 315 S.W.2d 230, 233 [7]; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559 [2-3],

Next, the instruction told the jury that in judging credibility “you shall take into consideration” certain things including demeanor, conduct and appearance on the witness stand, interest, motives, relationship, the likelihood of the testimony and “all other facts or circumstances given in evidence.” These are guidelines which the courts have approved repeatedly. By them the court informed the jury that they should not determine arbitrarily and without reason the credibility and value of testimony. These are criteria which the experience of mankind has demonstrated to be valid. As the court pointed out in State v. Willard, 346 Mo. 713, 142 S.W.2d 1046, 1051, the jury may accept or reject all or any part of the testimony of a witness as they find it true or not. “They may disbelieve the witness not alone because they think he has wilfully sworn falsely, but also because they consider him mistaken, ignorant, forgetful, visionary, emotional or the like.”

Finally, the jury was told “and you are at liberty to accept or reject all or any part of such testimony.” Plaintiff concedes that this clause can be read as if it related to all the criteria enumerated in the instruction. He contends, however, that it also can be read as relating to only the last two criteria, to wit, “the probability or unprobability of the witness’ testimony, as well as all other facts and circumstances given in evidence.” Plaintiff reasons that whichever way it is read, it in effect tells the jurors that they are free to weigh the evidence on any basis they choose, however arbitrary or subjective. We do not agree that the instruction reasonably is susceptible of that construction or that a jury would so understand it. Rather, it appears to us, it says to the jury that after considering the criteria which they have been told they must take into consideration, they still are the judges of credibility of witnesses and they may conclude to accept and believe all the testimony of a witness, or a par thereof, or none at all. This is exactly what the jury is privileged to do. As stated in Appel-hans v. Goldman, Mo., 349 S.W.2d 204, 208: “* * * ‘“the jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case.” ’ ” The clause in question is simply a part of the sentence in which all the criteria to be followed are enumerated and it must be read as a part of that sentence. When the instruction is read as a whole, as it must be, it is not subject to the interpretation placed thereon by plaintiff.

We find no case which has considered a cautionary instruction in the form of Instruction No. 1. Apparently this exact form of instruction had its genesis in an article in the December, 1960 St. Louis Bar Journal at page 20. It is not, as defendant recognizes, a model in phraseology and punctuation, but we believe it not to have been prejudicially erroneous. Henceforth, of course, MAI 2.01(8) is the credibility instruction approved for civil cases.

The judgment is affirmed.

All of the Judges concur.

      . In considering this clause we have not cited nor discussed cases involving credibility instructions which contain a sentence or paragraph applying the rule of evidence expressed in the maxim, Falsus in uno, falsus in omnibus. Such cases include State v. Butler, Mo., 310 S.W. 2d 952 [2-3]; State v. Fingers, Mo., 357 S.W. 89 [2]; and Hatton v. Carder Wholesale Grocery Co., 235 Mo.App. 1198, 150 S.W.2d 1096 [3]. These instructions are appropriate only in cases which allegedly involve wilfully false testimony. The last clause of Instruction No. 1 is not a falsus in uno instruction nor is it an abbreviated version thereof. The falsus in uno philosophy appears nowhere in Instruction No. 1.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Arthur H. HAMEL et al., on Exceptions of Eugene G. Tighe, Appellant.
    No. 51681.
    Supreme Court of Missouri, Division No. 2.
    July 11, 1966.

      Robert L. Hyder, Jefferson City, Edwin B. Brzezinski, Kirkwood, for plaintiff-respondent.
    Carl E. Starkloff, Walter Wehrle, Clayton, for defendant-appellant.
   STOCKARD, Commissioner.

In this action for condemnation of land for highway purposes the jury award of just compensation to Eugene G. Tighe, the owner, was $4,000, and he has appealed. The difference between the award and the amount to which he claims he is entitled under his evidence exceeds $15,000. Appellate jurisdiction is in this court.

The land involved consisted of a vacant, unimproved irregularly shaped parcel containing 6.165 acres located in St. Louis County. From that tract respondent appropriated 2.92 acres for use in the construction of Interstate Route 70. After the condemnation suit was filed, but before the commissioners filed their report, appellant sold the remaining 3.245 acres for $12,000.

On this appeal appellant presents two points. The first, which, he designates as the “principal point relied on,” is that “the court erred in failing to set aside the ver-diet of the jury and to grant a new trial by reason of the inadequacy of the jury’s verdict under the evidence.” Appellant argues that while there always will be a difference in opinion among appraisers as to value of land, “depending upon the client for whom they are testifying,” the verdict of the jury in this case “was so inadequate as to shock the conscience of anyone who is familiar with the value of lands in St. Louis County.”

Appellant’s tract of land was located near or adjoining several subdivision areas developed for residential housing, but it was not subdivided into lots and was not zoned. There was no constructed street leading into the property, but nearby there were one or two “paper” streets, that is, streets shown on subdivision plats but which had not been constructed. The land was not accessible by automobile. In previous years there had been a bridge over a creek by which access could be had, but that bridge was gone at the time of the taking.

Three expert witnesses testified on behalf of appellant as to the damages sustained by reason of the result of the taking. Mr. George B. Funk, a real estate appraiser, had not been on the property until four to six months prior to trial, which was after the highway was constructed. He described the land as having a “roughly rolling” topography but “not hilly.” In his opinion immediately prior to the taking the land had a value of $52,000, after the taking the remainder was worth $12,000, and the net loss to appellant was $40,000. He explained that in arriving at his opinion he had considered the general development in the area, and the influence of Pasadena Hills, a nearby residential subdivision. He also considered a sale of nearby land consisting of 7.6 acres for $80,000 to the Y.M.C.A. However, this land was located on Bermuda Avenue at the interchange of Interstate 70, and had on it a fifteen-room house which was built in 1902 but which was still in use.

Mr. Theodore Martin, a realtor; expressed the opinion that prior to the taking the land was worth $52,000 and that the remainder after the taking was worth $24,000, leaving a net damage of $28,000. He arrived at this opinion by working out a “hypothetical subdivision.” He described the land as roughly rolling, and stated that a creek had to be crossed to get to the property.

Mr. H. J. Krueger, a real estate appraiser, stated that he had been acquainted with appellant’s property since the “first of the year,” and that in 1954 he was familiar with vacant land in the area. He expressed the opinion that before the taking the land was worth $52,500, that the remainder of the land after the taking was worth $21,000, and that appellant’s net damage was $31,-500. He stated that the land included a crown or a high point and then dropped down to a watershed creek. The land taken by the State was the portion which dropped into a draw with the creek, and the portion remaining included the crown or high point.

Appellant testified that before the taking his land was worth $60,000, that he sold the remaining portion for $12,000 and that his damages were $48,000. He also offered evidence of a sale by him in 1955 of a tract of land consisting of 10.395 acres to Mr. Harry Shapiro for $94,500. This land fronted on Bermuda Street, a paved street, and the land was fairly level.

Respondent first offered evidence of two sales of nearby land which it contended was comparable. We need not elaborate on the details, but the price for one tract was $1,050.23 an acre, and the price for the other was $1,250.00 an acre. Two expert witnesses testified for respondent concerning appellant’s damages. Mr. William S. Gar-ton, a real estate broker and appraiser, testified that he had been on appellant’s property prior to the taking and was familiar with it. The only access to the property was from San Diego Avenue, a “paper” street, and it was necessary to cross a creek over which there was no bridge. Based upon what he considered to be comparable sales in the area, and his experience in the real estate business, he expressed the opinion that the value of the property before the taking was $7,780.50, the value of the remaining property was $4,867.50, which he “rounded off” at $5,000, and appellant’s net damage was $2,789.50, which he “rounded off” at $3,000. He commented on the sales of other land presented by appellant, but said that he did not so consider them to be comparable, and he stated his reasons therefor.

Mr. Arthur A. Schneider, a realtor and an appraiser, stated that appellant’s property was vacant, unimproved land covered with trees, weeds, and scrub timber, and that a creek had to be crossed to gain access. In his opinion, the value of the land before the taking was $8,250, and the remainder after the taking had a value of $4,500, leaving a net damage to appellant of $3,700. He also stated that he did not consider the sales of other land shown by appellant to be comparable.

From the above it is clear that the verdict of the jury was supported by competent evidence. It is true that there was a substantial difference in the opinions of the expert witnesses, but the jury had before it these opinions and a full description of the land, its location, accessibility, and possible uses. From all of this evidence it was the prerogative of the jury to determine the just compensation for the taking to which appellant was entitled, and when its determination is supported by substantial evidence, as it was in this case, appellate courts should not interfere. This rule was well expressed in Empire Dist. Electrict Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78, 83, as follows: “Although ‘the appellate courts may, in a proper case, interfere where the damages in condemnation are grossly excessive or inadequate’, City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853, 857(9), it has been held repeatedly that an award of damages supported by substantial evidence will not be disturbed. City of St. Louis v. Schopp, 325 Mo. 480, 30 S.W.2d 733, 734(1); Prairie Pipe Line Co. v. Shipp * * * [305 Mo. 663], 267 S.W. [647] loc. cit. 650(4), and cases there cited. A judgment in a condemnation proceeding should not be disturbed ‘because of a disparity in the testimony of witnesses or even because of a seeming preponderance of the evidence one way or another,’ City of St Louis v. Gerhart Realty Co., 328 Mo. 103, 40 S.W.2d 661, 665(12); and, it has been held specifically that the opinion of one -qualified witness as to the extent of damage ‘would constitute substantial evidence’. City of St. Louis v. Buselaki * * [336 Mo. 693], 80 S.W.2d [853] loc. cit. 857(7).” See also, City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; State ex rel. State Highway Commission v. Tighe, Mo., 386 S.W.2d 115; State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654, 668. The verdict of the jury was supported by substantial evidence, and we as an appellate court cannot say that the trial court abused its discretion in failing to grant appellant a new trial.

The second, and last, point on this appeal is that the trial court erred “in permitting the testimony of witnesses Goode and Thornhill to stand for the reason that the opinion offered as to the value of appellant’s land was not based upon any competent evidence before the court; that the properties referred to by them were [not?] comparable in any respect to the land which is the subject of this suit.”

The immediate answer is that neither Mr. Goode nor Mr. Thornhill expressed any opinion as to the value of appellant’s land, or the damages sustained by him as the result of the appropriation by the State of a portion of his land. Each testified to a sale of other land contended by respondent to have been comparable. We note also that there was no objection whatever to the testimony of Mr. Goode. Mr. Thornhill testified that in November, 1953, he sold a tract of land in the neighborhood of appellant’s land. When asked the sale price appellant objected “unless there is some evidence to establish to the court that this property was comparable to the subject property.” Mr. Thornhill then described the land and when again asked to state the sale price counsel for appellant said, “I renew the objection.” It was overruled. This was the only obj ection to the testimony of Mr. Thornhill.

We shall assume that the latter part of this point, as we have quoted it above, is an attempt to assert that the trial court erred in admitting testimony of other sales of land which were not comparable. However, no reasons are stated. The point does not meet the basic requirements of Civil Rule 83.05(a), V.A.M.R. Disregarding this deficiency, there still is no merit to the contention. We need not set out a detailed statement of the facts shown by the evidence. The order of condemnation was entered on November 13, 1954. The sales of the two tracts of land, one of which was testified to by Mr. Goode and the other by Mr. Thornhill, occurred in November 1953. The description of each tract and its location clearly authorized a finding that it was comparable to that of appellant. “The general rule is that evidence of the sale price of property similarly located to that involved, and made in the neighborhood reasonably near the time of taking, is admissible to aid the triers of fact in determining the compensation to which the owner is entitled for the taking of the property. In re Armory Site in Kansas City, Mo., 282 S.W.2d 464, 473; Kansas City & Grandview Railway Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891, 84 A.L.R. 1477. ‘The importance of evidence of the sale price of other land depends upon the degree of nearness of the sale in point of time and the proximity of the property, o.f the similarity in location, and in the use to which the property may be adaptable.’ In re Armory Site in Kansas City, supra. * * * As stated in the Armory Site case, ‘In determining the admissibility of evidence of this nature there necessarily must be considerable discretion on the part of the trial judge.’ ” State ex rel. State Highway Commission v. Koberna, Mo., supra, 396 S.W.2d at p. 662. Appellant has not demonstrated any abuse of discretion on the part of the trial judge in admitting the evidence to which complaint Is now made.

The judgment is affirmed.

BARRETT, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

All of the Judges concur.