author: ANDERSON, Judge.

text:
    STATE of Missouri, (Plaintiff) Respondent v. Edward R. GISH, (Defendant) Appellant.
    No. 31109.
    St. Louis Court of Appeals. Missouri.
    Oct. 15, 1963.
    Rehearing Denied Nov. 15, 1963.

      Granville E. Collins, Fulton, and Alan G. Kimbrell, St. Louis, for appellant.
    Donald E. Dalton, Pros. Atty., St. Charles, for respondent.
   ANDERSON, Judge.

Defendant was tried on an information charging him with careless and reckless driving in violation of § 304.016, subd. 4 (1) RSMo 1959. He was found guilty and a fine of $50.00 was assessed against him. From the judgment on the verdict defendant has appealed.

The information alleged that “Edward Rutledge Gish, on the 18th day of September, 1960, in the County of St. Charles, State of Missouri, did then and there wil-fully and unlawfully drive and operate a motor vehicle, to wit: a 1957 Oldsmobile Sedan over and upon U. S. Highway #40, a public highway of the State of Missouri, in a careless and reckless manner, and in a manner so as to endanger the life and limb of the public, in that he did drive said motor vehicle to the left side of the roadway when approaching the crest of a grade of the highway, when his view was obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”

The statute involved [§ 304.016, subd. 4 (1) RSMo 1959] reads as follows:

“4. No vehicle shall at any time be driven to the left side of the roadway under the following conditions:
“(1) When approaching the crest of a grade or upon a curve of the highway where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.”

Appellant’s first contention is that the evidence was insufficient to support the conviction. It will, therefore, be necessary to review the evidence offered by the State in support of the charge.

Plaintiff’s only witness was the arresting officer Donald J. Medley, who was an officer of the Highway Patrol. He testified that on September 18, 1960, he was on Highway 40-61 in the vicinity of the Daniel Boone Bridge, which spans the Missouri River between St. Louis County and St. Charles County. The highway runs in an east and west direction. Daniel Boone Bridge is about twenty miles east of Wentzville, Missouri. The highway has a concrete surface approximately twenty-one feet wide.

At about 11:30 P.M., on the date in question, the witness was traveling west on the highway in a line of traffic going in that direction. Heading this line of traffic was a tractor trailer, next in line was the car of defendant Gish, then another automobile, and directly behind this other vehicle was Officer Medley. Defendant Gish was driving an Oldsmobile. Medley further testified that the alleged violation occurred on a hill immediately east of a location on the highway known as the Dardenne Flats. To the west of the crest of this hill, there is a level stretch, then a slight dip in the road, followed by another level stretch, and another dip in the road into the Dardenne Valley. According to the testimony of Officer Medley, defendant pulled out of the line of traffic and entered the left (south) lane of the highway to pass the trailer tractor near the crest of the hill. At the point where defendant turned out, there are double yellow lines painted on the highway. These yellow lines run all the way to this Dardenne Valley, or a distance of approximately 1500 feet. It took about 1000 feet for defendant to complete the pass.

Medley further testified that he and the prosecuting attorney visited the scene of the alleged violation and checked the traffic traveling from west to east. They stood on the north side of the highway, opposite the point where defendant had crossed over into the left lane of the highway at the time in question. He stated that at that point, an automobile traveling east in the first dip over the crest of the hill would not be visible; that “You lose sight of the automobile * * * for approximately six seconds”. He further testified that, standing at the same place, “we lose sight of automobiles in the Dardenne Valley for approximately sixteen seconds”.

On cross-examination Medley testified in effect that, the time a car would not be visible at the points in question would depend upon the speed of the car; that the test was made during daylight hours.

Medley traveled this portion of the highway about fifty times a week.

On redirect examination, Medley testified that the pavement in the two “dips” was not visible from the point of passing on the night in question.

The defendant testified that he passed the truck on a different hill, east of the hill referred to by Medley in his testimony. He further testified that if he was driving his car at the point where Medley said the pass began, he would assume he could not see a car beyond the crest of the hill because there was a yellow line there, which he saw that night.

Defendant contends there was insufficient evidence to support the conviction because the state failed to prove that defendant’s view was so obstructed that his pass constituted a hazard to oncoming traffic.

The first point made under this assignment is, that the court should not, in passing on the question, consider the testimony that defendant crossed the yellow line for the reason that such testimony did not tend to show a violation of § 304.016, subd. 4(1) RSMo 1959, the section of the statute under which defendant was prosecuted. A number of reasons are advanced in the argument in support of this point which are very interesting. However, we will refrain from ruling on the point for the reason that, in our judgment, the state made a case independent of this testimony.

As heretofore stated there was testimony that subsequent to the date of his arrest, Officer Medley and the Prosecuting Attorney went to the scene of the alleged violation. While standing on the shoulder of the highway, they observed that traffic coming from the west was, at certain points, not visible over the crest of the hill where defendant crossed to the left lane, nor in the Dardenne Valley, which was over the crest of the second hill. His testimony was, that in the first dip the approaching automobile would not be visible for approximately six seconds, and not visible in the Dardenne Valley for approximately sixteen seconds. It will be remembered that the evidence further shows that defendant remained on the left side of the highway while going over the first crest, then into the dip in the roadway, and up and over the second hill, a total distance of 1000 feet.

Defendant contends that the foregoing evidence has no evidentiary value because (1) the test took place during the daylight hours, (2) the speed of none of the cars observed was shown, (3) the condition of visibility and the weather on said occasion was not shown, and (4) the experimenters were not standing on the highway.

In determining the relevancy and sufficiency of experimental evidence, the rule seems to be that substantial similarity in essential particulars is all that is required, and any such differences in conditions are for the jury in evaluating the weight to be given such evidence. Faught v. Washam, Mo., 329 S.W.2d 588, l. c. 598.

We believe that the differences in the conditions at the time of the alleged violation and at the time of the experiment were not so great as to require a holding that the testimony with reference to the latter was not substantial evidence. It is true that the observations of Medley and the Prosecuting Attorney were made during the daylight hours, while the alleged violation of the statute by defendant occurred at night. We agree with respondent that the difference between day and night does not change the curvature of the surface of the earth, nor the hills thereon. The statute makes it an offense to pass where the driver’s view is obstructed so as to create a hazard in the event another vehicle might approach from the opposite direction. It is the view of the approaching car, and not a view of the reflection of lights from an approaching car, a most deceiving phenomenon, which is the important consideration. Otherwise you would have one law for the daytime and another for the nighttime, which in our judgment, was not the legislative intent. Furthermore, there might be cars approaching without headlights, or headlights so dim there would be no reflection visible over the crest of the hill. The other differences in conditions certainly cannot be said to be of a substantial character.

The testimony of Trooper Medley that, on the night in question, when he reached the point where defendant pulled into the left lane, he could not see the pavement in the first dip over the crest of the hill, though of slight probative value, was substantial evidence to be considered by the jury along with the other evidence in the case. In our opinion, the court did not err in refusing to direct a verdict of acquittal in this case.

Appellant’s final contention is that a new trial should be granted on the ground of newly discovered evidence. This newly discovered evidence consists of alleged inconsistent statements contained in a deposition of plaintiff’s witness, Trooper Medley, in a deposition taken in another case. This deposition was taken November 22nd, 1961, after the appeal was taken in the case at bar. The matter, therefore, could not have been presented to the trial court.

By Rule 28.18 of the Rules of Criminal Procedure, it is provided that the Rules of Civil Procedure governing practice and procedure in the Appellate Courts shall govern the practice and procedure in said Appellate Courts in criminal cases, except Rules 82.16, 83.06(b) and 83.17.

Civil Rule 83.13 provides that apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of the pleadings to state a claim upon which relief can be granted, or a legal defense to a claim, the appellate court shall not consider matters except such as have been presented to or expressly decided by the trial court. We, therefore, cannot order a new trial by reason of the alleged newly discovered evidence.

Furthermore, aside from the above rule it has been held many times that newly discovered evidence, that is merely impeaching in character, does not warrant the granting of a new trial. Davis v. Illinois Terminal R. Co., Mo., 326 S.W.2d 78; Hayes v. Adams, 241 Mo.App. 560, 244 S.W.2d 123; Ragsdale v. Tom-Boy, Inc., Mo.App., 317 S.W.2d 679.

Finding no reversible error in the record the judgment is affirmed.

RUDDY, P. J., and WOLFE, J., concur.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Turner M. LIVELY, Jr., et al., Plaintiffs-Respondents, v. RIDGEWOOD CONSTRUCTION CORPORATION, Defendant, Charles Humfeld, and General Title Service Corporation, Defendants-Appellants.
    Nos. 31284, 31294.
    St. Louis Court of Appeals. Missouri.
    Oct. 15, 1963.

      Ziercher, Tzinberg, Human & Michen-felder, Robert C. Jones, Clayton, for defendants-appellants.
    Sheldon D. Grand, Clayton, for defendant.
    Tralles Hoffmeister & Gilpin, David K. Breed, St. Louis, for plaintiifs-respondents.
   DOERNER, Commissioner.

This case originated in a Magistrate Court of St. Louis County by the filing of a petition in which it was alleged that on September 15, 1960, plaintiffs paid to the defendant General Title Service Corporation the sum of $440, in escrow, “to purchase from defendant Ridgewood Construction Corporation through Humfeld Realty Corporation as agents, certain real estate known as lot 12 in Assumption Subdivision * * *.” It was further alleged that the house had never been completed or built, and that plaintiffs were entitled to have their earnest money refunded out of escrow. In some manner not shown by the transcript the cause reached the Circuit Court of Jefferson County. Defendants Ridgewood and Humfeld did not appear at the trial. Defendant General Title appeared and defended. The case was tried before the court without a jury. Judgment was rendered in favor of plaintiffs and against all defendants in the sum of $440, interest having been waived by plaintiffs. Defendant Ridgewood Construction Corporation did not appeal. Defendant General Title Service Corporation filed a notice of appeal, and perfected its appeal, Case No. 31,284. One Charles Humfeld, an individual, filed a notice of appeal, but did not file either a transcript or a brief. His appeal, Case No. 31,294, should be dismissed for failure to comply with Civil Rule 83.06, V.A.M.R.; Dye v. Geier, Mo., 345 S.W.2d 83; Anderson v. Kuhs, Mo.App., 213 S.W.2d 238; White v. Kuhnert, Mo.App., 207 S.W.2d 839; Civil Rule 83.09, V.A.M.R.

Since this is a jury-waived case we review the record de novo upon both the law and the evidence, as in suits of an equitable nature, and may make our own findings of fact; but the judgment will not be set aside unless clearly erroneous and due regard will be given to the opportunity of the trial court to judge the credibility of the witnesses. Civil Rule 73.01(d), V.A.M.R.; Hedgpeth v. Maddux, Mo., 366 S.W.2d 314; Townsley v. Thielecke, Mo., 349 S.W.2d 902.

The evidence showed that on or about August 28, 1960, plaintiffs entered into a. written contract with defendant Ridgewood Construction. The contract is not before us, but we gather from the testimony that plaintiffs thereby agreed to purchase from, defendant Ridgewood lot No. 12 in Assumption Subdivision, on which Ridgewood was to build a house. The purchase price was to be $16,750. Subsequently, on September 10, 1960, plaintiffs and Ridgewood Construction, through its sales manager, one-Fred Maetten, entered into a supplemental contract whereby it was agreed that Ridge-wood would not perform some of the work of finishing the house, such as painting, but would deliver the materials to plaintiffs to do the work. Ridgewood also agreed that it would allow plaintiffs the sum of $1700 as additional earnest money on the purchase money contract because of the work plaintiffs were to perform. The supplemental contract further provided that plaintiffs would take possession of the house on November 1, 1960, were to complete their work expeditiously, and were to pay Ridgewood $75 a month beginning December 15, 1960, until plaintiffs’ work was finished and their permanent loan was ■obtained. Plaintiff Turner M. Lively, Jr. testified the supplemental agreement was made in order to reduce his payments.

Lively testified that at the time he signed the supplemental contract he gave Maet-ten a check for $440, “as a down payment put in escrow with General Service Title ■Corporation.” The check was identified .and introduced. It is payable to General Title Corporation, is for $440, bears the date of September 15, 1960, and is endorsed on the back, “General Title Service Corp., Construction Escrow Account,” Lively stated that the house was to be constructed by Ridgewood by November 15; that when it was not completed to the point where he ■should have it he repeatedly called Ridge-wood, but received only evasive promises; that at the time of trial, almost a year and a half after the agreed date of possession, it was still not completed or possession given; and that he never could find out why he did not get the house. He made a ■demand on General Title as escrow agent for the return of his money, but it was not returned. On cross-examination Lively ■stated Maetten told him the $4-40 would be turned over to General Title and the money placed in escrow until the house was completed. He admitted that he had not had any conversation with anyone from General Title, that it had not signed his contract with Ridgewood, and that he had not entered into any written contract with General Title.

Defendant General Title’s only witness was its comptroller, Earl J. Hearld. The substance of his testimony was that General Title, Ridgewood, and South Side National Bank entered into an agreement dated October 20, 1960, whereby South Side National Bank was to loan Ridgewood $11,700 towards the construction of the house to be built for plaintiff. The money was to be deposited with General Title as escrow agent, to be paid out by it to contractors and subcontractors performing work, upon receipt of vouchers issued by Ridgewood. Ridgewood’s prospective profit on the house was $3,765, the construction and other costs were estimated to be $13,054, and the agreement therefore provided that Ridgewood was required to deposit with General Title the builders’ equity of $1,354. General Title and Ridge-wood, according to Hearld, on the same date entered into a “security agreement” in which Ridgewood agreed that it would construct the home according to the plans and specifications, and if it did not, General Title was privileged to complete the building free and clear of all liens. Hearld stated that South Side deposited with General Title the $11,700 loaned to Ridgewood, but that the only deposit made by Ridge-wood was $440, paid in on September 21, 1960; that the escrow fund was kept in a separate construction account at St. John’s Community Bank; that General Title paid out on vouchers the total deposited with it, and additional sums in order to complete the house free of all liens; and that the house was finally completed and was owned by Ridgewood at the time of the trial. Hearld stated that he was not with General Title when Ridgewood brought in plaintiffs’ check for $440, and that all he knew about the payment was from the records, which showed that the proceeds were credited to the Ridgewood building account.

General Title contends that it is not liable to plaintiffs for three reasons: first, "because there was no privity of contract between plaintiffs and it; second, because neither Ridgewood nor Ridgewood’s sales-manager, Maetten, was its agent, and it is not bound by what Maetten told plaintiffs; and third, because plaintiffs did not perform their part of the contract with Ridge-wood. We consider these points in the order named. The extent of the assistance we received from plaintiffs may be accurately judged from this quotation from plaintiffs’ brief: “We are not citing any cases because the law is well settled. ⅝ * *»

We regard this action as one for money had and received. Such a cause has always been favored in the law, and the tendency is to widen its scope. Webster v. Sterling Finance Co., 351 Mo. 754, 173 S.W.2d 928; Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527. The action lies where the defendant has received or obtained money or its equivalent from or for the plaintiff under such circumstances that in equity and good conscience he ought to pay it over to the plaintiff. Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710; Webster v. Sterling Finance Co., supra. Privity of contract is not required in an action of that nature, for the law implies the privity. In re De Gheest’s Estate, 360 Mo. 1002, 232 S.W.2d 378; Clifford Banking Co. v. Donovan Commission Co., supra. Thus the action may be maintained even though the money to which the plaintiff is entitled was paid to the defendant by a third party. Webster v. Sterling Finance Co., supra. There is no merit in defendants’ first contention.

The crux of this case is whether defendant General Title received money from the plaintiffs under such circumstances that in equity and good conscience it ought to repay it. There is no dispute about the fact that General Title received plaintiffs’ check for $440, payable to it, and that it obtained the proceeds thereof. Where the parties differ is on the circumstances under which the money was obtained. General Title argues that Maetten “evidently” requested plaintiffs to make the check payable directly to it because “ * * * We can only assume that Ridgewood did not want to run this check through its account * * Such speculation ignores and is contrary to the evidence. Plaintiffs’ evidence, developed in part on cross-examination, was that the check was made payable to General Title on the strength of Maet-ten’s promise and agreement that the money would be held in escrow by General Title until the house was completed. Defendant argues that neither Ridgewood nor Maetten was its agent. The same argument was made in Newco Land Co. v. Martin, 358 Mo. 99, 213 S.W.2d 504. In that case one Torrence was the assistant treasurer of plaintiff Newco, and as such had authority to sign checks of Newco when countersigned by its president. Torrence also maintained the books of a Bondholders’ Committee. Unknown to any of the interested parties, Torrence had withdrawn $16,-882.63 from a bank account of the Committee. The Committee was directed to pay $36,763.76 to the Clerk of the United States District Court. Because of Torrence’s peculations, there was only $30,350.57 in the Committee’s bank account. In order that the check to the Clerk would clear, Torrence drew a check on Newco’s account for $7,000, payable to the Committee. He then forged the countersignature of New-co’s president, forged the Committee’s endorsement, and deposited the check in the Committee’s account. On the issue of agency the Supreme Court said (213 S.W.2d 510):

“In this litigation the Committee seeks to have the transaction stand as consummated by Torrence and retain the benefits resulting therefrom. As a general rule one who, with knowledge of the material facts, retains the benefits of a transaction consummated by another ratifies the acts of the other in connection therewith and assumes the burdens and liabilities of such acts. This applies when an agent exceeds his authority and particularly in instances where the principal claims the person consummating the transaction was not his agent; that is, was a volunteer or self-constituted agent. The principal by availing himself of the acts and retaining the benefits becomes bound and concluded by the transaction as though the acts had been performed by an agent pursuant to express authority and subject to the acts to his disadvantage. State ex inf. [McKittrick] v. Koon, [356] Mo. [284] Sup., 201 S.W.2d 446, 455(15, 16) ; Fritsch v. National City Bk., Mo.App., 24 S.W.2d 1066, 1067(1,2); Meechem on Agency, 2d Ed., §§ 408, 410, 483 ; 2 Am.Jur. 177, §§ 223, 226, 227; 2 C.J.S., Agency, page 1097, § 49.”

And further (213 S.W.2d 511):

“There is this additional in the instant case: The effect of the Committee retaining the benefits of Torrence’s act constitutes him their agent in the transaction as though he acted with express authority. * * * ”

Regardless of what Ridgewood may have told General Title when it delivered plaintiffs’ check (and on that score there is no direct evidence), when plaintiffs demanded the return of their money from General Title the latter was then put on notice of Maetten’s agreement with plaintiffs that their money would be held in escrow by General Title. Defendant here, as in the Newco case, had obtained the benefit of plaintiffs’ money, for it would otherwise have been required to pay out an additional $440 of its own money in order to complete the house. With knowledge of those facts, General Title nevertheless retained and refused to return plaintiffs’ money to them, and by so doing it became bound and concluded by the agreement Maetten made with plaintiffs as fully as though the agreement had been made by him as an agent with express authority. Newco Land Co. v. Martin, supra; Quarles v. S. H. Hall & Co., 100 Mo.App. 523, 74 S.W. 883.

As stated, General Title’s final point is that the evidence failed to show that plaintiffs had made a tender of full performance of their contract with Ridge-wood. Defendant cites Cory v. Conqueror Trust Co., Mo.App., 86 S.W.2d 611 and Doerner v. St. Louis Crematory & Mausoleum Co., Mo.App., 80 S.W.2d 721. In both of those cases there was an obligation on the part of the plaintiffs to perform an act, which they failed to do before bringing suit. Here, plaintiffs were under no obligation to Ridgewood to pay any additional earnest money, to pay any rent, or to d& anything else until Ridgewood completed the house to the agreed state and delivered possession to plaintiffs, which Ridgewood had contracted to do by November 1, 1960. Lively testified that when the house was not completed or turned over to him he repeatedly called Ridgewood, but received nothing but promises; and that at the time of trial, well over a year after the agreed delivery date, the house still had not been completed or possession delivered. If a tender of performance was required, and we do not think it was, this evidence is sufficient from which the inference may be drawn that plaintiffs were endeavoring to carry out their part of the bargain.

In brief, the evidence showed that General Title received $440 from plaintiffs to be held in escrow pending the completion of the house by a day certain; that the appointed day has long since past, without delivery of the house; that repayment of the funds in escrow was demanded of General Title; and that it refused to pay. After a careful review of the record de novo, and with due deference to the opportunity of the trial court to judge the credibility of the witnesses, we think the judgment should be affirmed. Edwards v. Durham, Mo., 346 S.W.2d 90; Newco Land Co. v. Martin, 358 Mo. 99, 213 S.W.2d 504; In re De Gheest’s Estate, 360 Mo. 1002, 232 S.W.2d 378; Webster v. Sterling Finance Co., 351 Mo. 754, 173 S.W.2d 928. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C, is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


text:
    Napoleon EMILY, Mary Margaret Emily and Lucy Ann Emily, Plaintiffs-Appellants, v. James R. BAYNE, Maude Bayne, Mercantile Trust Company, a Corporation, and Cornet & Zeibig, Inc., a Corporation, Defendants-Respondents.
    No. 31344.
    St. Louis Court of Appeals. Missouri.
    Oct. 15, 1963.

      Norman Barken, St. Louis, Sheldon D.. Grand, Clayton, for plaintiffs-appellants.
    Lashly, Lashly & Miller, John H. Lashly, William E. Rulon, Thompson, Mitchell Douglas & Neill, Courtney Shands, Jr., W. Stanley Walch, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

This is an action for fraud and deceit. Plaintiffs seek to recover both actual and punitive damages because of false representations claimed to have been made by the defendants in connection with plaintiffs’ purchase of certain real estate from the defendants James R. Bayne and Maude Bayne, his wife. Defendant Mercantile Trust Company was the sales agent for the Baynes, and defendant Cornet & Zeibig, Inc., acted as the real estate agent for plaintiffs. The jury returned a verdict in favor of plaintiffs and against all of the defendants for actual damages of $6,000 and punitive damages of $7,500, and judgment was entered accordingly. The defendants filed separate motions to set aside the judgment and to enter judgment in accordance with their respective motions for a directed verdict at the close of the evidence, as well as. individual motions for a new trial. The court overruled the former motions but sustained the motions for a new trial on the grounds that certain instructions given on> behalf of plaintiffs were erroneous. Plaintiffs appealed from that order.

The defendants, while defending the action of the trial court in holding the instructions erroneous, severally contend that the court erred in failing to direct a: verdict for each of them at the close of the evidence, in accordance with their separate motions for a directed verdict filed at the close of the evidence. Whether or not -plaintiffs made a submissible case against all •or any of the defendants is a basic question which we will decide under the circumstances here present. Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710; Gill v. Mercantile Trust Co., Mo.App., 347 S.W.2d 420; Krueger v. Elder Mfg. Co., Mo.App., 260 S.W.2d 349. It is elemental that in passing on that question we view the evidence in the light most favorable to plaintiffs. Chailland v. Smiley, Mo., 363 S.W.2d 619.

The real estate involved in this litigation is known and numbered as 3305 Russell Avenue, in the City of St. Louis. It was •originally constructed for use as a one-family residence, but at the time it was purchased by the Baynes in 1957 it had been •converted into a multiple dwelling of eight units. After they bought the property the Baynes lived in one unit and rented out the remaining seven, two of which were in what is commonly called the basement. When the Baynes decided to sell they employed the Mercantile Trust, which has a real estate department, as their sales agent. Mercantile Trust placed an advertisement regarding the property in the February 1, 1959 publication of a St. Louis newspaper. Plaintiff Lucy Emily saw the advertisement •and telephoned Mrs. Bernadine Murphy, a part-time saleswoman for defendant Cornet & Zeibig, a real estate firm. Mrs. Murphy, since 1953 or 1954, had undertaken to find •a suitable piece of real estate for Miss Emily and her brother, plaintiff Napoleon Emily, but up to that time had never been able to do so. Through arrangements made with Mercantile Trust, Miss Emily and Mrs. Murphy inspected the property, apparently at some time in the first part of March, 1959. Both before and after that inspection Mrs. Murphy had been in correspondence about the Bayne’s real estate with Mr. Emily, who resided in Kansas City. As a result, Mr. Emily came to St. Louis, sometime in March, 1959 and he, his sister, and Mrs. Murphy examined the building. After the inspection Mrs. Murphy volunteered to and did check the zoning at the City Hall. She reported to both Miss Emily and Mr. Emily that the property was in a zone in which multiple dwellings were permitted.

The Baynes were asking either $31,500 or $32,500 for the property (both figures appear in the evidence). Plaintiffs submitted an initial offer, in an unstated amount, which the Baynes refused. Subsequently plaintiffs submitted a second offer of $27,-500, incorporated in a sales contract dated April 6, 1959, which was accepted and signed by the Baynes on April 9. The sales contract was prepared by and is on a printed form of defendant Cornet & Zeibig. It contains the customary sales provisions, and, as the only special agreements typed in, the following:

“This contract contingent upon purchaser obtaining possession of one unit at time of closing this sale.
“Contract further contingent upon reaffirmation by Zoning Commission of zoning for this property being for apartments as represented.”

The sale was closed on July 10, 1959, at the offices of the Title Insurance Corporation in St. Louis. Mrs. Murphy testified that as she, Miss Emily and Mr. Emily were walking to the parking lot immediately after the closing, Mr. Emily told her that Miss Emily didn’t want the house and asked her to sell it. Mr. Emily denied that the conversation took place, but admitted that on July 17, 1959, only one week after the closing, he wrote Mrs. Murphy a letter in which he stated that Miss Emily did not like the property and that he would come to St. Louis on July 25 to make arrangements with Mrs. Murphy to place the property on the market.

During the early part of August, 1959, Miss Emily, at Mrs. Murphy’s suggestion, went to the City Hall to obtain a “ * ⅜ * permit to operate the house.” Miss Emily testified that, “ * * * they gave me a permit,” but the record does not disclose the nature of the permit she received. Mr. Olin Morrison, a building inspector for the City of St. Louis, who was called as a witness by plaintiffs, stated that at the direction of his superior he inspected the property on August 7, 1959. Whether his inspection preceded or followed Miss Emily’s visit to the City Hall is not clear from the evidence. In any event, following his inspection Mr. Morrison notified Miss Emily to make an application for a rooming house permit. She did so. He then made an inspection to determine whether the building complied with the so-called rooming house ordinance, and thereafter wrote Miss Emily recommending that various changes be made, including that, “ * * * She was to vacate the two cellar units for occupancy * * j\,/[n Morrison next visited the building on November 23, 1959, ascertained that his prior recommendations had not been followed, and sent Miss Emily a second letter, “ * * * requesting the same items to be done over again.” Mr. Morrison further testified that no rooming house permit had been issued since the time of his first visit. On cross-examination he stated that his records did not show that any complaint had ever been made by the City against the Baynes because of the occupancy of the basement units.

When the Baynes acquired the property in 1957, and when the sale to plaintiffs was closed, the two dwelling units in the basement were rented. The tenants in one unit were Mr. and Mrs. Worster or Wooster, the brother-in-law and sister of Mrs. Bayne, who remained on until December 1, 1961, when they moved. The other tenant was named Adams, but when he moved is not disclosed by the evidence. Miss Emily testified that these two units were not rented at the time of the trial, and that the rental income from the property was then $315 per month.

Additional facts will be stated in the course of the opinion.

The gist of plaintiffs’ charge of misrepresentation is contained in the following excerpt from their petition:

“ ‘2. Plaintiffs were tricked, cheated, and defrauded by the defendants and each of them, who knowingly and wil-fully represented to plaintiffs that said “apartment building” was acceptable under the ordinances and regulations of the City of St. Louis, more particularly Ord. Number 48338, in that it was represented to plaintiffs by defendants and each of them that there were eight apartments in said “apartment building” which could be rented in compliance with said ordinances and regulations for a total monthly rental of $415.00, while, in actuality, inspection by the Department of Public Safety of the City of St. Louis reveals that this is not the case, * * *.’ ”

The eight elements which must be proven in an action for fraud and deceit, the claim here pleaded, are so well known as not to require enumeration. Bayer v. American Mutual Casualty Co., Mo., 359 S.W.2d 748; Lowther v. Hays, Mo., 225 S.W.2d 708; Wood v. Robertson, Mo., 245 S.W.2d 80; 37 C.J.S. Fraud § 3, p. 215. The first of those elements is that of a representation. Each of the defendants contend that the evidence did not show that he, or anyone on his behalf, made the representations charged in plaintiffs’ petition. If it did not, then the motion for a directed verdict of that defendant at the close of the case should have been sustained, for a failure to establish anyone of the essential elements is fatal to a recovery by plaintiffs. Powers v. Shore, Mo., 248 S.W.2d 1; Lowther v. Hays, supra; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190. It seems hardly necessary to add that the burden of proving the charge of fraud was on plaintiffs who asserted it. Shepherd v. Woodson, Mo., 328 S.W.2d 1; Bayer v. American Mutual Casualty Co., supra; Hardwicke v. Hamilton, 121 Mo. 465, 26 S.W. 342.

Because the evidence is different regarding each defendant, the respective contentions of Mercantile, the Baynes, and Cornet & Zeibig will be considered separately, in that order.

The essence of the representation which plaintiffs alleged was made by the defendants was that the building contained eight apartments which could be rented in compliance with the ordinances and regulations of the City of St. Louis. As to defendant Mercantile, the only representation shown to have been made by it, prior to the closing, was the advertisement it inserted in the newspaper on February 1, 1959, which read:

“HOME AND INCOME 3305 Russell. Be sure to see this 8-family on 90 ft. corner lot; new wiring; fire escapes; new furnace; excellent yield. Call WY 1-2580.
MERCANTILE TRUST CO.
Real Estate Dept. CE 1-3500”

These statements were factual, and they were true. The building did contain eight dwelling- units, which the plaintiffs saw and inspected during their visits to the property. It was on a 90 foot corner lot, as shown by the evidence, including the general warranty deed introduced by plaintiffs. The advertisement did not even characterize the dwelling units as “apartments,” as plaintiffs alleged. Obviously there was no reference in the advertisement to any ordinance or regulation of the City of St. Louis, much less to all of them. There may be instances in which an advertisement is so worded as to be misleading. Brown v. Sloan’s Moving and Storage Co., Mo., 274 S.W.2d 310; 296 S.W.2d 20. But a fraudulent representation should not be wrung from a statement by enlarging its meaning through a strained interpretation or unjustifiable augmentation. Ray County Sav. Bank v. Hutton, 224 Mo. 42, 123 S.W. 47. That case holds, in fact, that in deciding whether a statement was a misrepresentation * * we should solve all doubts in favor of good faith * *

The only direct contact between the plaintiffs and defendant Mercantile was at the closing of the sale on July 10, in the offices of the title company. There were present on that occasion Miss Emily; Mr. Ernily; Mrs. Murphy; Mrs. Helen Smith, then closing officer of Cornet & Zeibig; Elmer Kulla, sales closer in the real estate department of Mercantile; Maurice Wright, president of the Security Home Savings and Loan Association, which made plaintiffs a loan on the property; and Norman Struss, of the title company. When Mr. Emily testified he could not recall the name of Mercantile’s representative, but in answer to questions propounded by his counsel, he related:

“Q. Were any statements made by the Mercantile representative at the time of closing?
“A. I called their attention to the paragraph of this contract and I asked — I called their attention to this clause in the contract and they reaffirmed that the zoning was, it was in conformity with the zoning.
“Q. Did they say anything else about the building meeting any other requirem ents ?
“A. That it met all requirements, met all city zoning requirements and so on.
“Q. Did Mrs. Murphy make any statement?
“A. They both did, Cornet and Zeibig and Mrs. Murphy — I mean Mercantile.”

It will be noted that when first asked what the representative of Mercantile had said Mr. Emily referred only to zoning, and that even when pressed by his counsel to relate any other statements about the building meeting other requirements the witness returned to the subject of “ * * * city zoning requirements and so on.” There is no dispute about the fact that the property is in a zone for apartment houses and other multiple dwellings. Mrs. Murphy had checked a second time at the zoning offices and had written Mr. Emily to that effect, on April 20, after the contract of sale was signed but before the closing.

Of the seven persons present, only one, Norman Struss of the title company, did not appear as a witness. Of those who did, not a single witness, including Miss Emily, one of the plaintiffs, corroborated Mr. Emily. However, viewing the evidence in the light most favorable to plaintiffs, as we are required, and assuming that the representative of defendant Mercantile made the statement that the building met all city zoning requirements, “and so on,” can we either interpret or interpolate into that nebulous phrase the representation, alleged in plaintiffs’ petition, that the eight apartments in the building could be rented in compliance with all of the ordinances and regulations of the City of St. Louis? For the reasons given in connection with the advertisement, we think not.

Further, assuming that either the advertisement or the statement of defendant Mercantile’s representative could be interpreted to accord with plaintiffs’ allegations, the purported representation would have been no more than the mere expression of a legal opinion. A statement of what the law will or will not allow to be done is a matter of opinion, albeit on a legal matter. Williston on Contracts, Rev. Ed., Vol. 5, Sec. 1495, p. 4171; Fish v. Cleland, 33 Ill. 237. It is the rule in Missouri, as it is generally, that a representation concerning a matter of domestic law ordinarily will not support an action for fraud and deceit. It has been held that representations similar to that claimed to have been made in this case were mere expressions of a legal opinion, and not actionable. The general rule that an action for fraud and deceit cannot be predicated upon a representation regarding a matter of domestic law is subject to two well-recognized exceptions: (1) Where there is a relation of trust and confidence between the parties, as in Easton-Taylor Trust Co. v. Loker, Mo.App., 205 S.W. 87; and (2), where one party is possessed, or professes to be possessed, of a superior knowledge of the law and takes advantage of the other party’s ignorance of the law to mislead him,, as in Security Savings Bank v. Kellems, 321 Mo. 1, 9 S.W.2d 967 and Hartley Realty Co. v. Casady, Mo.App., 332 S.W.2d 291. Neither exception is applicable here. Plaintiffs and defendants Bayne and Mercantile dealt at arms length, Ewing v. Miller, Mo., 335 S.W.2d 154. There was no confidential relationship between them. Wilhoit v. Fite, Mo., 341 S.W.2d 806. Nor was there any evidence that those defendants had or professed to be possessed of a superior knowledge of the law and thereby misled' defendants. Security Savings Bank v. Kellems, supra; Hartley Realty Co. v. Casady, supra.

For the foregoing reasons we are-of the opinion that plaintiffs failed to make a submissible case against defendant Mercantile Trust Company, and that the motion! of that defendant for a directed verdict at the close of the evidence should have been, sustained.'

As to Mr. and Mrs. Bayne, the-only representation claimed to have been made by either of them to plaintiffs was Mr. Emily’s testimony on direct examination of a conversation which occurred during his inspection of the property. We quote his testimony in full:

“Q. What statement did the Baynes make when you looked at the property ?
“A. They said it was in good condition.
“Q. Did they make any statement in regard to the income of the property?
“A. Yes, sir.
“Q. If you can remember, what were those statements?
“A. They said the income totalled over four hundred dollars, approximately four fifteen, I believe, per month.
“Q. When you purchased this property did you rely upon those statements ?
“A. Yes, sir, that’s right.
“Q. And upon other statements made by the Baynes ?
“A. That’s right.”

No other statements were attributed by Mr. Emily to the Baynes. There is no dispute about the fact that the property was then producing the rental stated. Mrs. Murphy, who appeared as a witness on behalf of defendant Cornet & Zeibig, was asked whether she had discussed with the Baynes “ * * * anything with reference to the zoning or the building code or the city regulations or anything of that sort?” Her answer was that she discussed only zoning, that she asked the Baynes whether the property was zoned for multiple dwellings and that they said it was. She specifically denied that there was any conversation relating to the city building code or regulations or ordinances or anything of that kind. The foregoing is all of the evidence regarding statements made by the Baynes. It is obvious that as to those defendants the evidence wholly fails to support the allegations of false representations pleaded in plaintiffs’ petition. Their motion for a directed verdict at the close of the evidence should also have been sustained.

The evidence, however, is far stronger as to defendant Cornet & Zeibig. On February 16, 1959, before Mr. Emily had come to St. Louis to inspect the Baynes’ property, Mrs. Murphy wrote him a letter in which she said that she had located a converted residence on Russell, a magnificent job, which contained eight apartments with eight kitchens and eight baths. On February 28 she wrote him again, saying that she and Miss Emily had seen the property and enclosed a statement of the rentals, which she declared were definitely too low and should be raised. She again wrote him on March 5, giving him an analysis of the income (for eight units), the expenses, the method and cost of financing, and the net return. Sometime after that date (the exact time is not in evidence) Mr. Emily came to St. Louis and inspected the property. Mr. Emily testified that he owned no real estate and had had no experience in real estate. He had been seeking a property which would serve as a home and source of income for his sister. Mrs. Murphy was aware of his requirements and had been searching for several years for such a building. He testified that during the inspection trip Mrs. Murphy made the following statements:

“Q. When you viewed the property did Mrs. Murphy make any statement?
“A. The property was in good condition and conformed to the zoning and other regulations.
“Q. What experience have you had in real estate, Mr. Emily?
“A. None.
Do you own any real property? ¡Ó
None. >
“Q. Did you indicate that to Mrs. Murphy?
“A. Yes, sir. I told her that I relied on her to see that the property met the city requirements as to zoning and so on.”

On cross-examination she admitted that she knew the plaintiffs were relying on her as their agent in the sale, and knew that they had placed their complete confidence in her. After his visit Mrs. Murphy prepared, or had prepared, the contract of sale dated April 9, which listed therein eight apartments and the rentals thereof. Thereafter, on April 20, she wrote Mr. Emily as follows :

“ ‘The zoning on the property was checked at City Hall, and it is as represented. However, the zoning office suggested that at closing an occupancy permit he obtained, and kept available at time of any inspection by various city departments.’ ”

Although she was thereby put on notice that other legal regulations existed regarding the use of multiple dwellings, she did nothing more. Nevertheless, when Mr. Emily inquired of her at the closing whether the property met the “ * * * city zoning requirements and so on,” she assured him that it did.

Defendant Cornet & Zeibig’s contention that the plaintiffs failed to make a sub-missible case as to it, like all Gaul, is divided into three parts. The first argument advanced is that the evidence failed to establish any representation concerning Ordinance No. 48338, the so-called rooming house ordinance. It is true that the evidence did not show that Mrs. Murphy made a statement in which she specifically referred to that ordinance. We do not think it was essential to plaintiffs’ case to prove that she did. The gist of plaintiffs’ allegation was that it was represented to them that the building contained eight apartments which could be rented in compliance with the ordinances and regulations of the City of St. Louis governing multiple dwellings. As we construe plaintiffs’ petition the phrase: “* * * more particularly Ord. Number 48338, * * * ” was employed to specify the ordinance which the pleader believed was applicable, rather than an allegation of what was actully represented. Furthermore, plaintiffs were not required to prove the representations alleged verbatim et literatim, but only representations which were substantially the same as those alleged; that is, statements having the same general meaning and effect. Wilson v. Murch, Mo.App., 354 S.W.2d 332.

The evidence did establish, as this defendant recognizes, that in her letter of February 16 to Mr. Emily Mrs. Murphy described the building as containing eight apartments with eight kitchens and eight baths; that on one occasion she represented to Mr. Emily that the property “ * * conformed to the zoning and other reffula-tions” (emphasis supplied); that in her letter of April 20 to Mr. Emily she wrote that the property was zoned for multiple dwellings and that the zoning office had suggested that an occupancy permit be obtained at the closing; and that at the closing of the sale she assured Mr. Emily that the building, “ * * * met all city zoning requirements and so on.”

Whether these statements were sufficient to establish the representation alleged so as to make a submissible case must be judged in the light of the relationship between plaintiffs and Cornet & Zeibig, as well as against the background and in the context in which they were made. The relationship between plaintiffs, the clients, and Cornet & Zeibig, their real estate agent, was one involving trust and confidence. Klika v. Albert Wenzlick Real Estate Co., Mo.App., 150 S.W.2d 18; Acy v. Inland Security Co., Mo.App., 287 S.W.2d 347. That fact alone is sufficient to make a difference as to “ * * * the degree of proof required * * * ” to make a submissible case for fraud and deceit, as well as “ * * a difference as to the form in which the misrepresentation is put * * Monsanto Chemical Works v. American Zinc, Lead & Smelting Co., Mo, 253 S.W. 1006, 1009. Mrs. Murphy was cognizant of the income producing purpose for which plaintiffs were seeking to purchase real estate, knew of their lack of knowledge and experience in such matters, and was fully aware of the plaintiffs’ reliance on her to see that the multiple dwelling complied with all requirements of the city governing such property. In 37 C.J.S. Fraud § 8, p. 224, it is said that, * * * In its generic sense, a false representation is anything, short of a warranty, which produces on the mind of another person a false impression conducive to action. * * *” In the light of the relationship between the parties and the background against which they were made, we think the statements made by Mrs. Murphy might reasonably be considered as a representation that produced on the minds of the plaintiffs the impression that the property contained eight apartments which could be rented in compliance with the city’s ordinances and regulations governing multiple dwellings.

Such a representation, of course, was one regarding a matter of domestic law, and as we have previously stated, the general rule is that an action for fraud and deceit cannot be predicated upon a misrepresentation of domestic law. But that rule is no bar to this action, since the conceded relationship of trust and confidence between the plaintiffs and defendant Cornet & Zeibig bring it within the ambit of one of the recognized exceptions to the rule. Easton-Taylor Trust Co. v. Loker, supra.

The second and third points relied on by Cornet & Zeibig both deal with Ordinance Number 48338, the rooming house ordinance, and may therefore be considered together. It is contended, on the one hand, that there was no proof that the building was a “rooming house”, as that term is defined in Ordinance Number 48338; and on the other, that even if it is assumed that the ordinance applied, plaintiffs failed to prove that the two units in the cellar or basement were occupied in violation of the ordinance. Both of these contentions are premised on the supposition that plaintiffs’ claim was based exclusively on Ordinance Number 48338, a fallacy with which we have already dealt. The first argument is also predicated on the contention of Cornet & Zeibig, which it endeavored to prove, that the building was in fact an apartment house and therefore subject to Ordinance No. 44513 governing apartment houses, a part of which was introduced in evidence.

In the interest of brevity we need not dwell on the technical distinctions between a rooming house and an apartment house as established by the two ordinances. It will suffice to say that we agree with Cornet & Zeibig’s argument that the dwelling units are either “light housekeeping units” or “apartments.” We also agree with it that the primary difference between the two is that in order to be an apartment the partitions must be constructed of one-hour fire resistant materials. Lastly, we further agree that the evidence did not establish the nature of the materials which comprise the partitions, so that it is impossible to accurately determine whether the dwelling units are light housekeeping units or apartments. But we do not agree with the defendants’ conclusion that the plaintiffs therefore failed to make a sub-missible case.

Actually, the question of whether Ordinance No. 48338 or No. 44513 governs the building is academic. This for the reason that the evidence was sufficient for the jury to find that the two dwelling units could not be used for human habitation regardless of which applied. In the interests of further restricting the length of this unavoidably long opinion, it is sufficient to say that the two units could not be used for human habitation if they were in a “cellar,” but that they could be so occupied if they were in a “basement.” Ordinance No. 48338 defines a basement as, “A story having part but not more than one-half (1/2) its height below grade. * * * The ceiling shall be not less than 7 feet 6 inches (7'6") high.” Ordinance No. 44513 likewise requires that the ceiling of a basement dwelling unit must be 7 feet, 6 inches high and that the ceiling, “shall be at least three feet six inches above the surface of the •street or ground outside of or adjoining the room.” (Emphasis supplied.)

In an effort to show that the two dwelling units involved are apartments rather than light housekeeping units, and that they could be used for human habitation, the defendant developed from the city building inspector, Mr. Morrison, plaintiffs’ witness, that the height of the ceiling was 7 feet 8 inches. Mr. Morrison stated that he could not give the difference in elevation between the ceiling and the surface of Russell Avenue, on which the property fronts. He did say, however, that the house was on a lot which was raised above the street level. Defendant’s expert real estate appraiser, Arthur A. Schneider, testified that the ceiling was 7 feet 6 inches high, and that the elevation of the ceiling was 4 feet above the surface of Russell Avenue. However, on cross-examination he admitted that he had made his measurement from the sidewalk rather than from the surface of the roadway; admitted that there was a slight terrace in the front yard; and also admitted that the ground level was one foot above the sidewalk. Giving defendant the benefit of Mr. Morrison’s measurement of 7 feet 8 inches as the height of the ceiling it is nevertheless apparent that the elevation of the ceiling would be only three feet above the “ * * * ground outside of or adjoining the room,” and hence would not be legally habitable under the apartment house ordinance. Also, it would not meet the requirements of a “basement” under the rooming house ordinance, because more than ■one-half of its height would be below ground. According to plaintiffs the benefit of the favorable evidence adduced from defendants’ side of the case, as we must, there was sufficient evidence to submit to the jury the issue of whether the two dwelling units could be used for human habitation under either ordinance.

It follows that the plaintiffs made a submissible case as to defendant Cornet & Zeibig, and that its motion for a directed verdict at the close of the evidence was properly overruled.

We turn, now, to the matter of plaintiffs’ appeal insofar as it concerns defendant Cornet & Zeibig. In their petition plaintiffs pleaded that the representations made by the defendant were false, and that the defendant knew they were false when it made them. In their Instruction No. 3, their verdict directing instruction against defendant Cornet & Zeibig, plaintiffs submitted the case to the jury upon the alternate theory that Cornet & Zeibig made the representations knowing that they were false, or knowing that it did not know whether they were false or true. The court held that the instruction was erroneous because the alternative scienter was not embraced within the pleadings. Whether or not it was embraced within the pleadings (and on that score see Luikart v. Miller, Mo., 48 S.W.2d 867), the instruction was prejudicially erroneous on other grounds. It is, of course, not necessary, in order to make out a submissible case of fraudulent representation, to prove that the defendant had actual knowledge that the facts stated by him were false; it will suffice if it is shown that he made a particular representation with the consciousness that he was without knowledge as to their truth or falsity, when, in fact, they were untrue. Luikart v. Miller, supra; Wilson v. Murch, Mo.App., 354 S.W.2d 332; Jos. Greenspon’s Son Pipe Corp. v. Hyman-Michaels Co., Mo.App., 133 S.W.2d 426. This does not mean, however, that the plaintiff can submit an instruction on both theories of scienter when there is no evidence of actual knowledge by the defendant. Jos. Greenspon’s Son Pipe Corp. v. Hyman-Michaels Co., supra. As stated in that case (133 S.W.2d 426, 429):

“The direction to the jury in this instance to return a verdict for plaintiff if they found, among other things, that the representation, if and when made by defendant, was false and known by the defendant to be false’, had the consequence of telling them that there was a basis in the evidence for such a finding; and since the two hypotheses of scienter were submitted in the alternative, we cannot say that the jury did not purport to find under the one as to which there was no evidence rather than under the one which was properly supported in the proof. The case at best was close upon the facts; and with the result in the case depending primarily upon a question of veracity as between Greenspon and Rosenthal, it was highly prejudicial to defendant to have the jury charged, in effect, that the evidence would support a finding that Rosenthal had uttered a deliberate falsehood.”

In the instant case there was no evidence that Mrs. Murphy or Cornet & Zeibig had actual knowledge that the two apartments did not comply with the city’s ordinances. In fact, the only evidence, that of Mrs. Murphy, was to the contrary, and for the reasons given in Greenspon’s, supra, the instruction was prejudicially erroneous.

Other points regarding plaintiffs’ vcr-dict-directing instructions, which defendant maintains also entitled it to a new trial, need not be discussed since such matters may be modified upon a re-trial of the case.

For the reasons stated, the plaintiffs’ appeal should be dismissed, and the order granting defendant Cornet & Zeibig, Inc., a new trial should be affirmed; the cause should be remanded with directions to set aside the order granting a new trial to defendants James R. Bayne, Maude Bayne, and Mercantile Trust Company, and to enter a judgment for those defendants; all at plaintiffs’ cost. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court, Ac-cordmgly, plaintiffs’ appeal is dismissed and order granting defendant Cornet & Zeibig, Inc., a new trail is affirmed; cause is remanded with directions to set aside the order granting a new trial to defendants James R. Bayne, Maude Bayne, and Mercantile Trust Co., and enter a judgment for those defendants, all at plaintiffs’ cost.

RUDDY, P. J., WOLFE, J., and WILLIAM M. KIMBERLIN, Special Judge, concur.

      .Security Sav. Bank v. Kellems, 821 Mo. 1, 9 S.W.2d 967; Dalrymple v. Craig, 149 Mo. 345, 50 S.W. 884; Easton-Taylor Trust Co. v. Loker, Mo.App., 205 S.W. 87; Allgood v. Tarkio Elec. & Water Co., 222 Mo.App. 964, 6 S.W.2d 51; Gilmore v. Ozark Mut. Assoc., Mo.App., 21 S.W.2d 633; Bondurant v. Raven Coal Co., Mo.App., 25 S.W.2d 566; Thompson v. Kansas City, C. C. & St. J. Ry. Co., 224 Mo.App. 415, 27 S.W.2d 58; Sewell v. Ladd, Mo.App., 158 S.W.2d 752; Hartley Realty Co. v. Casady, Mo.App., 332 S.W.2d 291.

      . Williston on Contracts, Rev.Ed., Vol. 5, Sec. 1495, p. 4171; 37 C.J.S. Fraud § 55, p. 323; 23 Amer.Jur., Fraud and Deceit, Sec. 45, p. 809.

      . Abraham v. Wechsler, 120 Misc. 811, 200 N.Y.S. 471, aff. 210 App.Div. 876, 206 N.Y.S. 877; Montkane Funds. Inc. v. Ruff, Sup., 57 N.Y.S.2d 208, aff. 269 App.Div. 1021, 59 N.Y.S.2d 400; Mionie v. 341 Grand Street Corp., City Ct., 74 N.Y.S.2d 69; Williams v. Horton Realties, Inc., Sup., 121 N.Y.S.2d 552, aff. 283 App.Div. 889, 129 N.Y.S.2d 766; Metzger v. Baker, 93 Colo. 165, 24 P.2d 748.


author: RUDDY, Presiding Judge.

text:
    UNION ELECTRIC COMPANY OF MISSOURI, a Corporation, (Plaintiff) Appellant, v. Oscar SIMPSON and Margaret Simpson, His Wife, and Lucille Simpson, a Single Person, (Defendants) Respondents.
    No. 31308.
    St. Louis Court of Appeals. Missouri.
    Oct. 15, 1963.

      J. B. Schnapp, Schnapp & Cooper, Fred-ericktown, for appellant.
    Roberts & Roberts, Raymond R. Roberts, Farmington, for respondents.
   RUDDY, Presiding Judge.

This is a condemnation action by plaintiff, Union Electric Company of Missouri, a corporation, to acquire a perpetual easement, 100 feet in width, for a right-of-way upon and across the land owned by defendants herein for the purpose of erecting, constructing, keeping and maintaining a high voltage electric transmission line thereon. The trial court appointed three Commissioners who assessed defendants’ damages at $1875. Both plaintiff and defendants filed Exceptions to the Award of the Commissioners and upon a jury trial of the Exceptions, defendants were awarded the sum of $2000. Plaintiff’s motion for a new trial was overruled and it appeals.

Plaintiff was building and constructing a 138 KV transmission line for the distribution of electric current, extending from its power plant in St. Louis County in a southward direction to its substation in River Mines, St. Francois County, Missouri. Plaintiff’s easement runs parallel with the eastern boundary line of defendants’ property, consisting of 87½ acres. The easement is 100 feet wide for a total distance of 2037 feet and contains 4.67 acres. Defendants retained the use of said land taken under the easement, except for the areas required for the construction and maintenance of the poles, towers, wires, guys and anchors, and may use said area; however, not to endanger or interfere with the construction, maintenance or operation of plaintiff’s transmission and distribution line or lines. Plaintiff also had the right to “add to the number of, and relocate at will poles, towers, guys, anchors * * With the easement for the right-of-way plaintiff acquired “the right of ingress to and egress from the said easement or right-of-way at the ends thereof, and the right of traveling over said easement or right-of-way to gain ingress to and egress from the right-of-way or easement owned by plaintiff over lands adjacent to either end of the easement herein sought to be condemned, and the right to trim, cut or remove from said easement or right-of-way such trees or overhanging branches * * * as will interfere with or endanger the said transmission or distribution line or lines.”

The proposed construction consisted of three structures comprising a total of seven poles. The first structure consisting of two poles was to be located eight feet north of the south property line of the defendants. The next structure consisting of two poles was to be close to the center of the easement area and the third structure, which would be at the north end of the easement, would be an angle structure, used to turn a corner, consisting of three wood poles with anchors. This structure was located at a point 152 feet from the point where the transmission line leaves the defendants’ property. The total number of poles was seven and would carry a total of five wires, three energized and two static wires. However, the number of wires to be placed on the poles may change at any time plaintiff desires to make a change. The transmission lines would be a minimum of 26 feet above the ground at all points and the plaintiff from time to time would go through the easement property for the purpose of inspecting and maintaining the transmission lines and structures. Plaintiff has a general schedule of flying over the lines once a month. However, in case of trouble on the lines, it would expect to fly over the lines to locate the trouble whenever it occurred, which might be oftener than once a month. Plaintiff’s employees would go through the defendants’ land any time they wanted to for maintenance purposes and would go through a growing crop if necessary.

Claude Lovitt, an aerial patrol pilot, flies and does inspection work under contract for the plaintiff. In the course of his inspection duties he flies 60 to 75 feet above the transmission lines and to one side or the other of the lines. He has seen cattle run, while flying over the transmission lines, just a few times, adding, about one time in fifty flights over the lines. He said that usually they do not run and if they do run it is for a very short distance.

Plaintiff charges that the trial court erred in admitting improper evidence; in permitting the defendants’ attorney to ask improper questions; in permitting defendants’ attorney to argue improper matters to the jury and in giving defendants’ instruction No. 1. Plaintiff also charges that the verdict for $2000 was grossly excessive and that it was not supported by any substantial evidence. It is not necessary to state all of the facts. We will relate the facts material to each of the alleged errors in our discussion of the point raised by plaintiff.

In its first point plaintiff claims that the trial court erred in permitting Russell Thurman, a witness for defendants, to express his opinion as to the reasonable market value of the subject property for the reason that the witness was not properly qualified to express an opinion.

This witness testified that he lived at Farmington, Missouri, and was in the farming and cattle business, stating that he raises, buys and sells cattle and pastures them on his own and on rented land. He was familiar with the Simpson tract of land and with the sales of farms over the past few years in the vicinity of Flat River and in the area of the Simpson farm. He knew the price that was paid for these farms. At the time his testimony was given he was renting the land, owned by the Simpsons, for pasture purposes and for hay. He paid them $400 per year. He has had experience with airplanes flying over the pipeline running through his land and said, “There is times that the cattle will run,” when the planes fly over and that it (the plane) also bothers the horses. When asked the effect that airplanes would have in flying over the land used for pasturing cattle, he answered: “Well, it would have a lot due to the fact that the fence will be right against the line where the cattle will have no place to go but into the fence or the other way.” He said that he would not rent the pasture from the Simpsons next year because of the presence of the transmission lines. He was asked to give his opinion as to the reasonable market value of the farm prior to the taking of the land for easement purposes. Thereafter, plaintiff’s counsel objected to the witness answering the question, giving as his reason, that the witness was not properly qualified to express an opinion. This objection was overruled by the trial court and the witness stated that the reasonable market value before the taking was $20,000 and after the taking “around $15,000.” In his cross-examination he stated that he was acquainted with the Bartch tract of land north of the Simpson property. He did not think the Bartch tract was primarily pasture land. He thought it could be used for other purposes. The Bartch tract consisted of 240 acres and he heard that it had sold for around $25,000, which he calculated to be approximately $100 per acre. When asked the value per acre of the Simpson tract “exclusive of the buildings” he answered, “I would say in the neighborhood of $150, $200 an acre.” He knew that the defendants retained the right to use the land in the easement area.

Plaintiff complains that the witness was never asked if he was acquainted with the reasonable market value of land of the type and character of the defendants’ land, in and about that area and plaintiff contends that for this reason witness was not properly qualified to express his opinion as to the reasonable market value of the Simpson property.

The witness testified that he was familiar with the Simpson tract of land and that he was familiar with the sales of farms in the area of the Simpson farm and in the vicinity of Flat River and knew the price that was paid for these farms. The sales that he referred to were made over the few years prior to his testimony. He indicated he had intimate knowledge of the type and character of the defendants’ land, having rented it for pasture purposes the last two years.

We held in the case of State ex rel. State Highway Commission v. Bailey, 234 Mo.App. 168, 115 S.W.2d 17, l. c. 26, that the matter of determining whether or not a witness was qualified to express an expert opinion as to the value of property rested in the sound discretion of the trial court. In that case we cited the cases of State ex rel. State Highway Commission of Missouri v. Craighead, Mo.App., 65 S.W.2d 145, and State ex rel. Highway Commission of Missouri v. Williams, 227 Mo.App. 196, 51 S.W.2d 538. We find nothing in this case to show that the trial court abused its discretion in permitting the witness to express his opinion as to the reasonable market value of the property. The weight to be given to his testimony was, of course, a matter for the jury. State ex rel. State Highway Commission v. Bailey, supra.

In its next point plaintiff contends that the trial court erred in permitting witness, Elmer T. Hovis, to express his opinion that the subj ect real estate was good subdivision property and suitable for subdivision purposes. In support of its contention it asserts that there is no showing that there was a present demand for the land for such purposes or a reasonable expectation of such demand in the near future.

This witness testified that he lives in Flat River, Missouri, and is engaged in the retail lumber business and has been since 1932. He said he is acquainted with the Simpson tract of land, having been over it previously and again viewed the property prior to testifying. He stated that in 1950 he started subdividing land and bought three tracts of land for subdivision purposes and had bought quite a bit of other land. He further testified that there was not too much land between Flat River, Missouri and the Simpson tract of land that would be suitable for subdivision purposes. He stated that the population of Flat River, Missouri, could only move one way and that was toward the Simpson tract of land. However, he admitted that “it’s not moving anywhere now too much but if it ever does move, it has to move to the east * * He said that since 1950 there has been an increase in the value of real estate in and around Flat River, Missouri. This witness was asked whether or not the Simpson tract of land was valuable and suitable for subdivision purposes. An objection to this question was interposed by plaintiff, giving as its ground for the objection that the suitability of land for residential, commercial or industrial purposes cannot be considered in determining its market value where its use in the future for such purposes is wholly uncertain. The objection was overruled by the trial court and the witness answered, that about one-half of the tract of land was suitable for subdivision purposes.

In support of its contention plaintiff directs our attention to some of the testimony of Oscar Simpson, one of the owners of the tract of land involved herein, wherein he admitted that the Flat River area has been classified as an economically depressed area and that it was true that the area was not growing in size and population and “generally is sliding the other way.” Oscar Simpson further testified that he bought the tract of land in 1950 and that in his opinion it is worth more today than it was when he bought it. He further testified that prior to December 4, 1961, the date of the taking of the property for easement purposes, he had considered subdividing some of his property. The testimony of Oscar Simpson further shows that Highway 67 touches a part of defendants’ property and that Highway O bounds a part of the defendants’ property.

In the case of State ex rel. State Highway Commission v. Graham, Mo.App., 74 S.W.2d 493, l. c. 495, we quote from the case of State ex rel. State Highway Commission v. Southern Securities Co., Mo.App., 60 S.W.2d 632, 636, as follows:

“It is well settled that, in determining benefits or damages arising from the taking of land in condemnation proceedings, the value of the property is to be considered for any use to which it is reasonably adapted.”

In holding that the trial court committed error in excluding evidence relating to the availability and value of portions of the farm for acreage building sites, we said in State ex rel. State Highway Commission v. Graham, supra:

“We do not think it may he said as a matter of law, in view of the fact that the farm is located on both state highway 67 and U.S. highway 61, just out of Fredericktown, the county seat of Madison County, that the availability of portions of the farm for acreage building sites is speculative, or not in reasonable anticipation.” (74 S.W.2d l. c. 495.)

Plaintiff contends that there must be a showing of a present demand for the land for subdivision purposes or a reasonable expectation of such a demand in the near future, citing Union Electric Co. of Missouri v. McNulty, Mo., 344 S.W.2d 37, and In re Armory Site in Kansas City, Mo., Mo., 282 S.W.2d 464. In the case of In re Armory Site in Kansas City, supra, the court did say:

“In determining the just compensation to which the owner is entitled, the jury may consider uses of the land for which it is reasonably suitable, having regard to the existing business wants of the community, or such as may be reasonably expected in the future.” (282 S.W.2d l. c. 470.)

In that case the Supreme Court cites our case of State ex rel. State Highway Commission v. Graham, supra, and states that “[t]he landowner may and did show that the land was adaptable for use as building sites.” (282 S.W.2d l. c. 472.) In the instant case the testimony shows that the defendants’ property either borders or touches two principal highways, namely, United States Highway 67 and Highway O. That it is approximately one mile from Flat River, Missouri, and that whatever growth occurs in the population of Flat River, Missouri, it must proceed in the direction of defendants’ property. As in the Graham case, supra, we cannot say, as a matter of law, in view of the aforesaid testimony, that the potential use of a part of the defendants’ farm for subdivision purposes is speculative, or not in reasonable anticipation. We think the weight and value of this testimony was for the jury and that the trial court did not err in permitting the witness, Elmer T. Hovis, to express his opinion that the subject real estate was good subdivision property and suitable for subdivision purposes. We believe that the jury, in arriving at the market value of the land taken for easement purposes, should be permitted to consider the land as a subdivision potentiality.

In the redirect examination of Oscar Simpson, after he testified that there were no provisions made for gates into and out of the easement area, he was then asked, “In other words, they can go through there and tear down your fence if they want to get in and out?” Plaintiff objected to this question, giving as his ground that there is a presumption against negligence or wrong-doing on the condemnor’s part. The trial court overruled plaintiff’s objection. However, defendants’ counsel did not pursue this question and no answer was given by the witness. After the court overruled the plaintiff’s objection defendants’ counsel questioned the witness about another matter. There is no doubt about the question being improper for it contemplated future tortious acts of plaintiff’s agents and employees (Missouri Power & Light Co. v. Creed, Mo.App., 32 S.W.2d 783) and the trial court erred in overruling the objection to this question. Error in overruling an objection to a question will not constitute a ground for reversal where no prejudice results to the party complaining and this rule has been applied where the question was not answered. 5A C.J.S. Appeal and Error § 1716, pp. 890-891.

In the case of Jordan v. Daniels, 224 Mo.App. 749, 27 S.W.2d 1052, an objection was made to a question and the objection was overruled. The court pointed out that the question was never answered and that the inquiry proceeded along other lines. The court then said: “We fail to see any error or any hurt to the defendant on account of this procedure.” (27 S.W.2d l. c. 1058.)

In support of its position plaintiff cites the cases of Missouri Power & Light Company v. Creed, supra, and Kamo Electric Co-Operative v. Baker, 365 Mo. 814, 287 S.W.2d 858. There is no need to detail the facts of these two cases. It is sufficient to state that they are easily distinguished from the instant case. As pointed out by defendants, both cases were reversed because instructions were given allowing the jury to consider possible subsequent damages due to tortious acts and in both cases considerable evidence was admitted relative to such tortious acts. No such instructions are involved in the instant case. As said in the case of Ryan v. Campbell “66” Express, Mo., 304 S.W.2d 825, l. c. 829: “If every case in which improper questions were asked was reversed, few verdicts would stand.”

What we have said in overruling the last point relied on by plaintiff is applicable to the next contention made by plaintiff.

Henry Colteryahn, an employee of the plaintiff, was called as a witness by the defendants. He was asked by counsel for the defendants whether or not plaintiff had a working agreement with the Bell Telephone Company, whereby it would run its telephone lines over the property covered by the easement. Plaintiff’s attorney objected to the question, giving as his ground, that the property was taken solely for the purpose of electric transmission lines and not the telephone lines and that plaintiff had no authority to place telephone lines on its poles. The trial court overruled the objection and the witness answered that he was not qualified to answer the question and indicated that he did not know the answer to the question. No further inquiry concerning this matter was made by defendants’ counsel. It is true that there is nothing in the condemnation order permitting the plaintiff to place wires of the Bell Telephone Company on its poles, and the trial court should have sustained the objection to the question. However, we do not think the mere asking of the question constituted prejudicial error.

Plaintiff contends that the persistent asking of the two questions, one involving the possible tearing down of fences and the other involving the possible use of the lines by the Bell Telephone Company, constituted a wilfull attempt to present improper matters to the jury and to create significant and improper inferences. As said in the case of Ryan v. Campbell “66” Express, supra: “In each such case the final question is whether the conduct substantially influenced the verdict, despite the action taken at the time by the court, in sustaining objections or otherwise. If every case in which improper questions were asked was reversed, few verdicts would stand.” (304 S.W.2d l. c. 828.) We do not think this record indicates the persistent asking of improper questions. The two questions attacked and charged as error by plaintiff were asked of different witnesses and were widely separated in the course of the trial. We do not believe that the asking of these questions raised any improper inferences in the minds of the jurors, nor do we think they influenced the verdict. For the reasons given this contention of plaintiff is overruled.

We shall next consider plaintiff’s contention that the trial court erred in permitting defendants’ attorney to argue improper matters to the jury. The first matter complained of by plaintiff is the statement made by defendants’ attorney, in his opening argument to the jury. He told the jury: “* * * Naturally, my clients do not want that high line on their land. * * *” The objection of plaintiff’s counsel to this statement was overruled by the trial court. The next statement made by defendants’ counsel to the jury, charged to be improper by plaintiff, occurred in the opening statement and is as follows:

“Now, ladies and gentlemen, to begin with, and you may just as well face it, power lines of that kind are a necessity in this Country, we admit that, but they’re an unsightly thing in the first place to look at. * * * ”

Plaintiff’s counsel objected to this statement, giving as his ground, that there was no evidence in the case to support a showing that the lines were unsightly. This objection was overruled by the trial court. In support of its contention that it was error for defendants’ counsel to argue to the jury that defendants did not want the high line on their land, plaintiff cites the case of State ex rel. Northwest Electric Power CoOperative, Inc., v. Waggoner, Mo.App., 319 S.W.2d 930. In that case the defendants had purchased a 64 acre unimproved tract of land and had selected the highest area on the tract as a building site for their potential home. The easement sought by plaintiff in a condemnation proceeding ran directly across the defendants’ selected building site, which would bring the transmission lines over the place selected by the defendants as their home site. The testimony on behalf of the defendants was that this building site was the best and only satisfactory building site on the entire 64 acre tract. Plaintiff in its appeal contended that the trial court allowed improper and prejudicial jury arguments by permitting the defendants’ attorney to argue that plaintiff could have turned the line, thus taking a different route and avoiding placing its power line over the selected home site; that plaintiff would have been required to pay more money to maintain the line if they had moved the line as defendants requested so as to avoid going over the selected home site; and that the line “could fry you like an egg.” The Kansas City Court of Appeals held that the plaintiff had the legal right to locate its easement over and across that portion of defendants’ tract where the selected home site was located and that plaintiff’s only resultant duty was to pay just compensation for that taking. The court held that it was clearly improper and resulted in prejudicial error which had materially affected the merits of the cause when defendants’ counsel complained to the jury that plaintiff could have selected another location for its easement, which would not have gone over its selected home site, but that plaintiff with knowledge of defendants’ selection refused to change its location of the easement.

It is readily observable that the argument in the Waggoner case is not analogous to the argument confronting us. We do not think that defendants’ counsel in the instant case sought to emphasize the forced nature of the taking and this is made clear from his admission during his argument that power lines of that kind are a necessity in this country. There was no effort on the part of defendants’ attorney to suggest that the transmission lines could have been placed elsewhere. We agree with defendants' comment in their brief that it would be a difficult construction to hold that defendants’ counsel in his argument to the jury sought to have the jury punish plaintiff for the taking, when he readily admitted that these power lines “are a necessity in this country.” We do not mean to approve such remarks before a jury in a condemnation proceeding. We merely hold that under the circumstances of this case, when considered with the other statements made to the jury, it shows no prejudicial error and we do not' think the argument had any effect on the jury’s verdict.

In connection with the other portion of the jury argument of defendants’ counsel, plaintiff contends that there was no evidence offered that the fair, reasonable market value of the defendants’ real estate would be affected by any unsightliness of the power lines across the farm land. We find plaintiff to be mistaken in this contention.

Paul Clay, a witness for the defendants, testified that he was a real estate broker. When asked what his experience had been with prospective purchasers of land where a power line ran across it, answered: “Any farm where there is a utility line or a pipe line on it, it has a tendency to depress the price and people very definitely will make exceptions to it. Invariably over the years I’d say a pole line or a pipe line or any utility depreciates the value. * * * Not alone depresses the value of the land but depresses the value of the whole property because you’re well, — hurting it strictly for a resale and for future development of any sort. * ⅜ * ” While this witness did not refer to the unsightliness of the power lines, he did say that the power lines as such, which consisted of the poles, the guy wires, the anchors, and the transmission lines, depressed the reasonable market value of the real estate and that “people very definitely will make exceptions to it, (the power lines.) In further support of its contention that this argument was error, plaintiff states that the aesthetic considerations could not conceivably have affected the fair, reasonable market value of the defendants’ real estate.

In support of this last position plaintiff cites 124 A.L.R., p. 413, as follows:

“The unsightliness of power transmission lines, poles, and towers has been held not to be an element of damage to be awarded for the condemnation of the necessary land and right of way for such lines, in the following cases involving farm lands.” (Citing cases.)

However, on this same page, the same authority states:

“However, in Ohio Pub. Serv. Co. v. Dehring (1929) 34 Ohio App. 532, 172 N.E. 448, the court said that the unsightliness of towers and transmission lines could be considered by the jury in awarding damages for a taking of farm land for a right of way for power lines, for the reason that unsightliness might affect the value of the land.
“And again, in Texas Power and L. Co. v. Jones, (1927; Tex.Civ.App.) 293 S.W. 885, it was said that if it were true, as alleged, that a power line with its poles, cross arms, wires, etc., is an unsightly object, disagreeable or repellent to sight, its presence would naturally have a tendency to affect adversely the market value of the land and that such fact could therefore be considered in determining the damages to be awarded in the condemnation proceedings.”

We think the jury had the right to consider any effect the power lines may have had on the market value of the property, for we believe they are entitled to take into account every element and every effect resulting from the taking and from the structures installed, which would influence an intended purchaser’s estimate of the market value of the subject property. There is another reason for overruling plaintiff’s contention in connection with the jury argument made by defendants’ counsel, and, that is, that an appellate court will not in the absence of an abuse of discretion disturb the exercise by the trial court of its discretion with respect to the alleged improper argument of counsel and its rulings thereon will not be disturbed unless there has been an abuse of discretion. Polizzi v. Nedrow, Mo., 247 S.W.2d 809, l. c. 813, 5A C.J.S. Appeal and Error § 1611, pp. 113, 116.

Plaintiff complains that the trial court erred in giving Instruction No. 1 for the reason that said instruction submitted an improper measure of damages and for the further reason that there was no evidence to support the measure of damages as submitted in said instruction. Plaintiff admits that the instruction it attacks is the same as the one approved in the case of Union Electric Company of Missouri v. Miller, Mo.App., 354 S.W.2d 341. Therefore, there is no need of setting out the instruction under attack in this case. The measure of damages in a condemnation proceeding is the difference in the reasonable market value of the entire tract before and after the appropriation of the part taken. Union Electric Company of Missouri v. Miller, supra, and numerous cases cited in this authority.

We said in the Miller case that: “The courts of this state have long recognized and followed the rule that where only a part of the property is condemned the owner is entitled to recover the reasonable market value of the property actually taken plus any damages resulting to the remainder of the property because of the taking of the part.” (Citing cases.) (354 S.W.2d l. c. 343.)

The part of Instruction No. 1 under attack by plaintiff follows this method of assessing damages as stated above and as we said in the Miller case: “the aforementioned rule and similar instructions have been approved * * (354 S.W.2d l. c. 343.) We also said in the Miller case: “In cases where a part of a tract of land is condemned the courts have expressed the rule of the measure of damages in two different ways and ‘each expression inclusively defines as well as complements the other.”’ (354 S.W.2d l. c. 343.) Therefore, it makes no difference if the jury is told that the measure of damages is the difference in the reasonable market value of the entire tract before and after the taking or that the owner is entitled to recover the reasonable market value of the property actually taken plus any damages resulting to the remainder of the property because of the taking of the part. Both methods should lead to the same result.

As we said in the Miller case, when citing State ex rel. State Highway Commission v. Williams, Mo.App., 263 S.W.2d 444: “[T]he court held that it was wholly unable to find that a jury could have been confused or led into assessing double damages by giving instructions on each (both) methods of determining damages.” (354 S.W.2d l. c. 343.)

Plaintiff contends that the Miller case is to be distinguished on the facts from the instant case. It says that in the Miller case the easement ran across the middle of a 40 acre field which constituted a severance of the defendant landowners’ property. It claims that this is not true in the instant case and that for this reason there could not be any damage to the remainder of the defendants’ real estate. It is true that the easement in the instant case ran along the eastern border of defendants’ property but we cannot say as a matter of fact or of law that because there was no actual separation or severance of the defendants’ property there was no damage to the part of defendants’ property not involved in the easement right-of-way. We think this is a matter for the jury’s consideration based on the evidence it heard. In this connection it will be recalled that Paul Clay, a witness for the defendants, testified that the presence of the transmission lines depresses the value of the whole property, and as he said, “hurting it strictly for a resale and for future development of any sort * * Plaintiff’s contentions that Instruction No. 1 submitted an improper measure of damages and that there was no evidence to support the measure of damages as submitted are overruled.

Plaintiff contends that the instruction is erroneous for other reasons. It says that the instruction indicates that the landowners should be paid for the total value of the entire 4.67 acres of land contained in the easement and does not give the jury the right to take into consideration the retained right of usage by the defendant landowners. The instruction is not subject to such a construction. The instruction definitely limits the damages resulting from the taking and appropriating of a perpetual easement over and across defendants’ land, mentioned in the evidence. We think the jury was properly instructed and knew that only an easement or right-of-way across defendants’ land was involved and from the evidence knew that defendants retained the right to use the land in any manner that would not interfere with the maintenance and operation of the transmission lines.

The last point for consideration urged by plaintiff is that the verdict for $2000 was grossly excessive and, plaintiff adds, “because it was not supported by any substantial evidence.” Plaintiff’s principal contention in this respect, as stated in its brief, is “there could not be any severance damage because the defendant landowners’ property is not severed by the acquisition of this right-of-way easement.” This contention made by plaintiff in the point previously discussed was held to be without merit. It is without merit in connection with a consideration of the point now under discussion.

Plaintiff errs when it assumes that the only damages are the acreage values of the part actually taken. In its brief plaintiff multiplies what it finds to be the damage per acre by the number of acres involved in the easement right-of-way. As we have pointed out heretofore, this is not the way to determine damages in a condemnation proceeding. An examination of the record indicates that there is substantial evidence to support the verdict.

Oscar Simpson, one of the owners, testified that in his opinion the reasonable market value before the taking was $25,000 and after the taking $17,500 or damages of $7500. Russell Thurman testified that the reasonable market value before the taking was $20,000 and after the taking $15,000, or damages of $5000. Paul J. Clay testified that the reasonable market value before the taking was $17,500 and after the taking $12,500 or damages of $5000. Plaintiff admits that Paul J. Clay was competent to testify as to real estate values and in his brief states that “the testimony of Paul J. Clay was the only competent testimony as to valuations submitted by the defendant landowners.” While we do not agree with plaintiff that Paul J. Clay was the only competent witness and gave the only competent testimony, it has been held that the opinion of one qualified witness as to the extent of damage would constitute substantial evidence. Empire Dist. Electric Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78; City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853.

We find the verdict supported by substantial evidence. While we may in a proper case interfere where the damages in condemnation are grossly excessive, however, where the award of damages is supported by substantial evidence, it will not be disturbed. Empire Dist. Electric Co. v. Johnston, supra; City of St. Louis v. Buselaki, supra. It should be pointed out that there is very little difference between the awards made by the Commissioners and the amount of damages found by the jury in this case.

Defendants filed a motion to dismiss this appeal for failure of plaintiff to comply with Supreme Court Rule 83.05(c), V.A. M.R. The motion to dismiss is overruled.

The judgment is affirmed.

WOLFE and ANDERSON, JJ., concur.