author: STORCKMAN, Judge.

text:
    ROSEDALE-SKINKER IMPROVEMENT ASSN., Inc., a Corporation, and Michael Jos. Hart, Stephen Sinclare, Lawrence H. Stern, Trustees of Parkview, Appellants, and Arthur J. Freund and Margaret D. Freund, Intervenors-Appellants, v. The BOARD OF ADJUSTMENT OF the CITY OF ST. LOUIS, Thomas Bear, M. A. Beffa, Robert Kinealy, Clarence Ax and L. A. Maginn, in their capacity as Members of the Board of Adjustment, and Southwestern Bell Telephone Company, a Corporation, Respondents.
    No. 53064.
    Supreme Court of Missouri, En Banc.
    March 11, 1968.
    Rehearing Denied April 8, 1968.

      Richard C. Hart, St. Louis, for plaintiffs-appellants.
    Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for intervenors — plaintiff s-appellants.
    John Mohler, Michael Grove, St. Louis, for respondent, Southwestern Bell Telephone Company.
    Thomas F. McGuire, City Counselor, St. Louis, for respondent, The Board of Adjustment of the City of St. Louis.
   STORCKMAN, Judge.

This certiorari proceeding, filed in the Circuit Court of the City of St. Louis, attacks the legality of a building permit which the St. Louis Board of Adjustment ordered to issue under the powers granted it by § 916.050(4) of the Zoning Code. The Board found that a variance in the height of the proposed structural addition was justified because of a practical difficulty and unnecessary hardship. The application of Southwestern Bell Telephone Company for a permit to erect an addition to its building at 6214 Delmar Boulevard was refused by the Building Commissioner of the City of St. Louis. Bell Company appealed to the Board of Adjustment which conducted hearings and ordered issuance of the permit. The plaintiffs in the certiorari proceedings, in addition to the Improvement Association, are the trustees and two resident owners of a home in Parkview, a subdivision located south of and across an alley from the existing building and the proposed addition. No additional evidence was offered in the circuit court and the order of the Board of Adjustment was affirmed on the record made before the Board. The plaintiffs appealed to the St. Louis Court of Appeals which adopted an opinion reversing the judgment and remanding the cause with directions to affirm the refusal of the Building Commissioner to issue the permit. The case was transferred here on order of this court where it will be reviewed as an original appeal. Art. 5, § 10, 1945 Constitution of Missouri, V.A.M.S.

The main contentions of the plaintiffs on this appeal are that the Board of Adjustment exceeded its jurisdiction in granting the height variance because it had no authority to hold a second hearing and to reverse its original ruling, that no practical difficulty or unnecessary hardship was established by Bell Company or found by the Board, and that the Board’s order was illegal in that it constituted a repeal of § 910.050 of the Zoning Code regulating the height of buildings in the “G” district.

Two hearings were held before the Board of Adjustment. After the first hearing the Board entered an order on February 17, 1965, sustaining the decision of the Building Commissioner on two grounds: (1) that the erection of the new structure would reduce the space for off-street parking below the requirements of the Zoning Code in violation of § 903.080, and (2) that the proposed building exceeded the height limitations of § 909.050 and no practical difficulty or unnecessary hardship had been shown. Thereafter Bell Company acquired land adjoining its property on the west which would provide more parking spaces than required by the ordinance. On March 17, 1965, Bell filed its motion for a rehearing which was granted. The rehearing was held on April 28, 1965, at which time the order of which plaintiffs complain was entered.

The plaintiffs urge that neither the enabling statutes nor the ordinances constituting the St. Louis Zoning ordinance authorize the Board of Adjustment to grant a rehearing. Chapter 916 of the Zoning Code, relating to the Board of Adjustment, follows quite closely the enabling statutes, §§ 89.080 to 89.110, RSMo 1959, V.A.M.S. Although rehearings are not expressly authorized, they are not prohibited during the time the Board is vested with jurisdiction of the application. Section 89.100 and § 916.040 provide that when the building commissioner is notified of an appeal from his decision he shall transmit to the Board all papers filed with him and the appeal stays all proceedings in furtherance of the action appealed from unless the stay is vacated under conditions and by means not material here. Any person aggrieved by a decision of the Board has thirty days to petition the circuit court for review. Section 89.110 and the second paragraph of § 916.050(5). Within these limits the Board is vested with jurisdiction of the application.

In exercising its powers, the Board “may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the building commissioner or the board of public service.” Section 916.050(5). “The power to reopen a cause before a board of appeals, should not be interpreted with too much refinement, nor should it be hedged about with too much technicality, if, in the meantime, no rights have arisen which would be injured by a reopening of the subject and if material, new conditions have arisen.” Metzenbaum, Law of Zoning, Vol. 2, Second Edition, p. 900. This rule of construction is reasonable and just; it is consistent with the pertinent statutes and ordinances in this case. To the same effect, see 58 Am.Jur., Zoning § 227, p. 1060, and 101 C.J.S. Zoning § 218, p. 978. The appellants also assert that changed circumstances based on the acquisition of additional parking area should have been presented to the building commissioner and not to the Board of Adjustment. As previously noted, the building commissioner, pursuant to § 916.050(5), was divested of jurisdiction by reason of the appeal, and his powers were conferred upon the Board of Adjustment. The Board had jurisdiction of the application at the time it granted and held the rehearing. The contention that the Board of Adjustment had no authority to grant the rehearing and to reverse its original ruling is denied.

The appellants’ next contention is that the applicant Bell Company did not establish any practical difficulties and unnecessary hardships and none were found by the Board. In their written argument the appellants state that “there was absolutely no evidence, nor any finding by the Board, of any hardship arising out of the peculiar topography or condition of the particular piece of land involved. The physical characteristics of the parcel of ground were not mentioned.” This thesis is carried through in all of the plaintiffs’ briefs filed here and in the court of appeals. In fact the opinion of the court of appeals in this case appears to adopt this view. In one place it states that “the rule is that a hardship variance may be granted by a board of adjustment only when the nature of the land is such that it cannot be used for purposes permitted by the applicable zoning ordinance.” The appellants rely strongly upon Brown v. Beuc, Mo.App., 384 S.W.2d 845, a prior opinion of the St. Louis Court of Appeals. The opinion of the court of appeals in the instant case also relies for precedent on the following quotation from Brown v. Beuc, 384 S.W.2d at page 853: “When we say inherent in the land and that the hardship must be due to conditions not personal to the owner, but rather to conditions affecting the land we mean such hardships as result from the peculiar topography or condition of the land which makes the land unsuitable for the use permitted in the zone in which it lies.”

In Brown v. Beuc the landowner had a special permit to use a lot in a residential district for parking automobiles. It sought to eliminate a condition of the permit requiring the observance of a 25-foot-front-yard line in order to accommodate a greater number of automobiles. The Board of Adjustment granted a variance which was affirmed by the circuit court. The court of appeals stated that the lack of adequate parking facilities found by the Board was not unique on the part of the applicant but was general and characteristic of the entire neighborhood surrounding the lot in question, and that the remedy in those circumstances is in a revision of the code by the city legislature and not in the granting of a variance to a single property owner. 384 S.W.2d at page 853. This was sufficient to justify the reversal of the judgment. The reference in the opinion to “the peculiar topography or condition of the land which makes the land unsuitable for the use permitted in the zone in which it lies” was not necessary to the decision and was not based on any specific provision in the St. Louis ordinance or the enabling act.

Some state statutes specifically provide as a ground for variance the exceptional narrowness, shallowness, or shape of a particular piece of property or its exceptional topographic conditions. For example see New Jersey Statutes Annotated, Title 40:55-39(c) and (d), as applied in Place v. Board of Adjustment etc., 42 N.J. 324, 200 A.2d 601, 604. The Missouri enabling statute and the St. Louis zoning ordinance make no such specification. Section 916.050 (4) of the Zoning Code grants the Board of Adjustment the power to vary the application of the regulations and provisions of the Code in these terms: “In passing upon appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the zoning code, to vary or modify the application of any of the regulations or provisions of such code relating to [1] the use, construction or alteration of buildings or structures or [2]the use of land so that the spirit of the code shall be observed, public safety and welfare secured and substantial justice done.” The numbers in brackets have been added to emphasize the two distinct categories in which variances may be effected. In this case we are concerned with the first category; that is, the regulations and provisions of the Code relating to the construction and alteration of buildings and structures. Land use is not an issue.

“Provisions authorizing the grant of variances or exceptions are subject to the usual rules of construction; and particular words or phrases therein must he construed in the light of the ordinance as a whole and with a view to its purposes.” 101 C.J.S. Zoning § 279, p. 1044. An annotation on the construction and application of provisions for variations in the application of zoning regulations in 168 A.L.R. at page 17 states the general purpose of such provisions as follows: “Concidered as a whole, the cases disclose the twofold purpose of relieving individual owners of unnecessary harship and of protecting the zoning ordinance or regulation against attack on the ground of unreasonable interference with private rights.”

In accordance with the enabling act, § 89.090(3) and § 916.050(4) of the Zoning Code, the Board of Adjustment is authorized to vary or modify the strict letter of the Code in applying the regulations and provisions in order to obviate a practical difficulty or an undue hardship, but it is constrained to observe “the spirit of the code”, secure “public safety and welfare” and do “substantial justice”. The legislation should be construed reasonably to accomplish these purposes. The limitations on the powers of the adjustment boards are well stated by this court in State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030. There is no all-inclusive definition of what constitutes a sufficient showing of practical difficulty and undue hardship to warrant granting a variance; whether such difficulties or hardships exist is a question of fact as to which the Board of Adjustment is accorded a discretion to be exercised within the guidelines of the zoning legislation. Carlyle-Lowell, Inc. v. Ennis, Mo.App., 330 S.W.2d 164, 168[2], In Carlyle-Lowell, Inc. v. Ennis, the Kansas City Court of Appeals affirmed a judgment approving the grant of a variance in the application of yard and area regulations so that a 10-story apartment could be built on a lot irregular in shape and grade and crossed by a sewer easement. The opinion states, 330 S.W.2d page 169: “The only common sense conclusion is that the land is subject to practical difficulties which result in unnecessary hardship to the owner.” The decision, however, does not limit the granting of variances to conditions “inherent in the land”.

Section 89.090(3) and § 916.050 (4)are not subject to the limited construction indicated by Brown v. Beuc. If such were the legislative intention, it could have been so stated in direct and unmistakable terms. In determining the meaning and application of statutes, the court must ascertain the legisiative intent from the words used if that is possible, and in doing so give them their plain and ordinary meaning so as to promote the object and manifest purpose of the statutes. State ex rel. Curators of University of Missouri v. Neill, Mo., 397 S.W.2d 666, 669[1]. The topography or physicial characteristics of the land itself giving rise to difficulties and undue hardships is one, but not the sole, ground upon which variances in the application of zoning regulations may be granted.

The Bell Company has occupied the land in question since 1911 when it built.a 3-story telephone exchange and equipment building which was designed to accommodate four stories. Additions were constructed in 1915, 1923, 1938 and 1952. A fourth floor was added in 1923. Since 1952 the entire building has been a 4-story structure, 60 feet in height, 142 feet long, and 109 feet in depth. The building is located in a district zoned “G” commercial. At the time the original building and each addition was constructed, the use and height of 60 feet were well within the zoning requirements. The addition completed in 1952 was erected pursuant to a permit issued in 1950 before the effective date of a change made that year in the zoning ordinance. Since 1950 the applicable amended ordinance as to height has provided: “No building shall exceed 3 stories or 50 feet in height.” Since the 1965 application for the addition in question was for a 4-story structure, 60 feet in height, the proposed structure is approximately 10 feet in excess of the height provided by the amended ordinance.

Two hearings were held before the Board of Adjustment at which testimony was heard and exhibits were introduced including photographs of the interior and exterior of the building and the area adjacent to it. The evidence of the applicant Bell tended to show that the proposed addition was to be 60 feet wide and of the same height and depth as the existing building. It was to be a continuation on the west of the existing building and was to be constructed of reinforced concrete with a matching brick exterior. The present building houses a great deal of telephone equipment valued at over $7,500,000. The total investment after the addition is completed will be approximately $10,000,000.

Mr. William Gampfer, building and equipment engineer for Bell, was the principal witness for the applicant. In the course of his testimony he stated: “Let me say, in general terms, we need additional room. We have in this building facilities for 37,000 subscribers. This area is growing. It serves Clayton on the west and Washington University, etc. If we cannot grow in this area, this means we have to go to a new location for a new building. We will have to disrupt service and change telephone numbers and have the normal inconvenience which we are trying not to make which would cost both money and inconvenience to our subscribers if we cannot make this addition.” The Company had equipment scheduled to provide for growth in this area and without the addition the service would be in serious trouble right away. The call carrying capacity in this area is increasing more than the Company anticipated. Even if this area was restricted to 37,000 subscribers, there would have to be equipment additions to take care of the increase usage by the 37,000 subscribers. The pictures in evidence show that the building is entirely full of equipment. Because the building is full, additional space for equipment is needed.

Mr. Gampfer further testified that equipment was located on all four floors of the building. The first two floors are dial equipment, boards, central information board, and testing equipment. Pictures showing the type of equipment were introduced in evidence. These pictures show principally the west end of the existing building where thousands of lines terminate to serve the subscribers in this office. The exhibits show the cross-bar type of equipment frames which are 11 feet, 6 inches high, and the horizontal side of the main distributing frame and the type of equipment located there.

The building provides dial service system for Forest Park, Parkview, Overland and Chesterfield with operator systems. Some of the equipment needs to be replaced. The 1985 forecast is that approximately 50,000 lines will be required in the Parkview building which is over its present capacity. The new building would take care of it, however. The photographs of the exterior in evidence also showed some buildings in the neighborhood. Mr. Gampfer further testified that if the addition could not be erected, there would have to be a duplication of facilities. It would be a hardship on the subscribers as to the inconvenience of number changes and the future of good service.

With the high-rise buildings in Clayton, this building serves one-third of Clayton and Washington University. The witness did not know what the ultimate saturation will be. Mr. Gampfer thought that the present building with the proposed addition would take care of the service needs for the next 20 years. The type of equipment used requires the stories of the building to be 15 feet from floor to floor. In replying to a question as to whether there was any engineering reason not to put this equipment in a three-story building, Mr. Gampfer testified: “It is not impossible. However, it is not practical or economical to do it this way. In the existing equipment as shown by the exhibits, is at the end of the line and is adjacent to the wall. We have an obligation to the public of providing the best possible service at the most economical cost. In order to do this, this is why we are requesting this building addition.”

At the second hearing additional exhibits were introduced and the traffic and parking problem was shown to have been solved in that by acquisition of additional property on the west space had been provided for parking 21 automobiles which was in excess of the 8 parking spaces required under the ordinance. Mr. Gampfer stated: “I would like to reiterate from the first hearing that we have shown it is absolutely necessary for us to have a 4 story building to house the required equipment to provide adequate and proper telephone service to the people in this area.” In response to a question as to whether it would be possible for the equipment to expand horizontally, Mr. Gampfer stated: “I couldn’t tell you in specific detail except I can tell you if you have to expand horizontally there is a possibility we wouldn’t have need for the land. To tie the equipment together to have it function, if we have the length of the cables too long there is too much resistance and we cannot function the equipment. It would be economically unpractical to do this.” In this regard he further testified: “The alternative we would have to housing all this in one building would be to locate a new wire center or build up an existing one and cut areas to handle the job now handled by this office. We would have to increase some adjacent offices and transfer these subscribers. We would have to expand cable from the other offices and have a severe expense in changing thousands of telephone numbers in order to do this. I can’t tell you specifically how we would handle it, we have not approached it on that basis. It would be a terrible burden in cost as far as the public is concerned, thereby affecting the public.” He also stated: “If we could not proceed with this plan as we now see it there will be a period of time when it is doubtful if we could get the accommodations in this area. We would have to manufacture equipment in other central offices and a program cable pick these up. Here again without developing a full plan I can’t tell you positively this would occur.”

At the hearing counsel for Bell Company offered to have Mr. Gampfer testify in more detail about the different kinds of equipment; the chairman of the Board stated that would not be necessary. The photographic exhibits tend to support and demonstrate the need for a continuation of the building at present floor levels and at the same height. The evidence in opposition to granting the variance came principally from the intervenors and counsel for the objectors. The opposing witnesses were of the opinion that the further extension of the building would have a detrimental effect on the subdivision across the alley as a high-grade resident district. The subject chiefly discussed, however, was the inadequacy of parking space in the commercial district on Delmar. Even after Bell had fully complied in this regard, Mr. Richard C. Hart, a resident of the area and of counsel for the objectors, spoke in some detail of the parking problem, urged the Board to prevent Bell “from enlarging this facility” and asserted that a reversal of the prior decision would impose a hardship on him and the residents of the area. At this point a member of the board stated: “As I understand it, it would be a hardship as to the service. That’s the only thing we are interested in is the service to the public.” The objections of the opponents seemed to be directed more to preventing the construction of any addition rather than to the granting of the variance of the height regulation by 10 feet.

The Board found that parking space had been provided for 21 automobiles which is “more parking spaces than is required by the Zoning Code”, and that the “new structure is needed to house additional telephone equipment because of projected increased subscribers.” The conclusions of the Board regarding the height variation and the issuance of the building permit are as follows:

“Regarding the height requirements, the ‘G’ Commercial District follows the same height regulations as the ‘F’ Local Business District. Section 909.050 prohibits buildings taller than three (3) stories or fifty (50) feet in height. This new proposed structure will have one-third (½) the area of the existing structure. The applicant desires to erect this new structure four (4) stories high to follow the continuity of the existing building. In this case, the Board, under the powers granted to it by Section 916.050(4) finds a practical difficulty and unnecessary hardship to exist and further finds that the spirit of the code will be further served by the erection of this structure.

“Therefore, be it resolved by the Board of Adjustment that the decision of the Building Commissioner in denying the issuance of this permit be reversed and that the previous decision of this Board sustaining the decision of the Building Commissioner, rendered by the Board on February 17, 1965, be reversed and a permit be ordered issued.”

The enabling act and the zoning code both provide that the concurring vote of four of the five members of a board of adjustment shall be necessary to reverse any order, requirement, decision or determination of the administrative official and to effect any variation in the zoning ordinance. This is a further safeguard to the exercise of the power entrusted to the board by the legislative body. The court decisions recognize that the power to grant variances must be exercised sparingly and in keeping with the general purpose of the zoning plan and the public welfare. 101 C.J.S. Zoning § 286, p. 1057; 58 Am.Jur., Zoning § 200, p. 1049; Brown v. Beuc, Mo.App., 384 S.W.2d 845, 851 [4]; Berard v. Board of Adjustment of City of St. Louis, Mo.App., 138 S.W.2d 731, 733[1].

The determination of whether a variance in the application of a zoning regulation should be granted depends on the facts and circumstances of each case. 58 Am.Jur., Zoning § 198, p. 1048; Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 842[7]. The scope of judicial review of the decisions of the board of adjustment in a zoning proceedings is limited to a determination of whether the ruling is authorized by law and is supported by competent and substantial evidence upon the whole record. Art. 5, § 22, Constitution of Missouri 1945; Pearce v. Lorson, Mo.App., 393 S.W.2d 851, 854[1]; McKinney v. Board of Zoning Adjustment etc., Mo.App., 308 S.W.2d 320, 322[1].

In this case neither a change in the use of the land nor the use of the building is contemplated. The narrow question involved is whether a variance of 10 feet in the height of the addition is warranted under § 916.050(4) of the Code which empowers the Board to vary or modify the zoning regulations relating to the “construction or alteration of buildings or structures” in case of practical difficulty or unnecessary hardship.

The evidence shows that the building in question is to some extent a special purpose building. It was built to house telephone exchange equipment, some of it of a nature that stories 15 feet from floor to floor are required. The photographs disclose that it is not partitioned as the ordinary building, but is open so that high and long panel boards and shelves or troughs of wiring may be maintained in continuous rows. The increase in the demand for telephone service is so well known that it hardly needs to be supported by evidence, but it was, particularly as applied to this installation. Not only are the number of subscribers increasing, but there is increased usage by present subscribers. The evidence was uncontradicted that if the Telephone Company could not grow in this area it would have to erect another building in another location. The alternative would be to locate a new wire center and cut down on the work handled by this one. Not only would this disrupt telephone service but would be a “terrible burden” in cost to the public. The cost and inconvenience would be borne by the subscribers. There was testimony that four, rather than three, floors were desirable because of the nature of the equipment installed. If the cables are too long, resistance builds up and the equipment will not function properly.

Our conclusion is that there was competent and substantial evidence that practical difficulties and undue hardship would exist if the applicant was required to conform to the height restrictions of the existing ordinance, and that the grant of the height variance was authorized by law. The existing building and hence the situation in which Bell found itself was unique and peculiar in that this special sort of building was developed and constructed at its present height under the ordinances then in force. The present ordinance permitted an additional 5 feet in height but that was of no use to the applicant unless it had authority for 10 feet more so that the other story could be added. The Board of Adjustment exercised a sound discretion in granting the variance. In Norcross v. Board of Appeal etc., 255 Mass. 177, 150 N.E. 887[4], the granting of a height variance was held to be a proper function of the appeal board. In Board of Adjustment of City of Tulsa v. Shore, 207 Okl. 381, 249 P.2d 1011, an area variance was granted in that the applicant was permitted to extend the remainder of the front of the building so as to conform with the area occupied by the rest of the building. See also Annotation, 168 A.L.R. at p. 52. The contention that no practical difficulties or unnecessary hardships were established and that, therefore, the Board was without jurisdiction to grant the height variance is denied.

The appellants’ final contention is that the Board’s order was illegal because it constituted a repeal of § 910.050 of the Code regulating the height of buildings in the “G” commercial district. They cite Brown v. Beuc; State ex rel. Nigro v. Kansas City, and Himmel v. Leimkuehler, Mo.App., 329 S.W.2d 264, some of which we have heretofore discussed. None are authority for the contention made. Boundaries of districts and the regulations of the Zoning Code can be amended, supplemented, or changed by the legislative branch of the city; Chapter 917 provides the manner in which it can be done. A variance is in the nature of a waiver of the strict letter of the zoning law upon substantial compliance with it and without sacrificing its spirit and purpose. In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, 372[5]. This is not a new concept. Many years ago it was said that we should be ministers “not of the letter, but of the spirit: for the letter killeth, but the spirit giveth life.” II Corinthians, Ch. 3, v. 6.

In some situations a zoning ordinance may be valid generally but invalid in its application to a specific tract. Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 838[2], A board of adjustment is required to balance with other considerations the difficulties and hardships that may be encountered in applying the regulations to a particular property. 58 Am.Jur., Zoning § 202, p. 1050. A hoard of adjustment has no legislative powers. It acts administratively or quasi-judicially. Its decisions and rulings cannot have the effect of repealing or amending a law. In this case the decision of the Board was proper and did not have or purport to have the effect of repealing or impairing the force and effect of § 910.050 of the Zoning Code.

We have considered all of the questions presented by the appellants and find them to be without merit. Accordingly, the judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Wayne DeLISLE et al., Exceptions of George T. Killion, Mildred Killion, Respondents.
    No. 52916.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.

      Robert L. Hyder, Chief Counsel, Jefferson City, George Q. Dawes, Asst. Counsel Sikeston, for appellant.
    Roberts & Roberts, by Raymond R. Roberts, Farmington, for respondents.
   WELBORN, Commissioner.

Condemnation action. The State Highway Commission appeals from a judgment on a jury’s verdict for $110,000. The commission’s witnesses testified to damages of $54,000 and $48,750.

The highway commission took 22.39 acres for right-of-way for Interstate Route 55 and Supplementary Route T, plus an easement in 25.12 acres for a “borrow pit” from a 75-acre tract owned by George T. and Mildred Killion in Pemiscot County. The 75-acre tract was situated approximately 1½ miles south of Portageville and was bounded on the west for ½ mile by existing Route U. S. 61 and on the north for 54 mile by State Supplementary Route T. The right-of-way taken for 1-55 approximately bisected the 75-acre tract diagonally, from the southwest corner to the northeast. The area for the borrow pit comprised the portion of the 75-acre tract lying west of the 1-55 right-of-way. There also remained of the original tract a triangular-shaped portion of approximately 27.49 acres on the east side of the 1-55 right-of-way. This tract fronted upon an access road to be built in conjunction with 1-55, with unlimited right of access from the remaining tract to the outer roadway. An overpass carrying Route T over 1-55 was to be constructed. For the relocation of Route T an area some 800' in length and 70 to 105 feet in width, adjacent to the existing Route T right-of-way was taken. The only improvements within the ' area taken consisted of a tenant house which the owner elected to remove at a cost of $450 to $500.

On this appeal, the highwa)' commission’s first assignment of error relates to the use and introduction into evidence by defendants of a plat. The plat was prepared for defendants by the Pemiscot County surveyor. It was drawn on a scale of 1" = 100' and included the quarter section of which Killion’s 75-acre tract was the western half, the adjoining quarter section to the north and a portion of the next adjoining quarter section to the north. The plat also included a quarter section owned by Killion, located on the west side of Route 61, and bounded on the south by State Route YY. As shown by the plat, the southeast corner of this 160-acre tract was approximately 600' north of the northwest corner of Killion’s 75-acre tract. The plat showed the right-of-way for existing Routes 61, YY and T, as well as the right-of-way to be taken for 1-55 and the relocation of Route T, as such right-of-way existed and would exist within the entire area covered by the plat. All of the right-of-way, existing as well as that to be taken for the 1-55 project, was shown in an identical color, described by appellant as “bright red.” Killion’s remaining 27.49 acres of the 75-acre tract, lying to the east of the 1-55 right-of-way, as well as the 160-acre tract to the west of Route 61 was colored blue. The borrow pit area was colored blue, with red cross lines.

The appellant asserts that the plat was erroneously permitted to be introduced in evidence “because the right-of-way being appropriated was colored in bright red, as well as the previously acquired highway right-of-way, and there was not a proper delineation of the boundary lines so the jury could distinguish the old right-of-way from the new right-of-way being appropriated * * * ” and because the plat “included four separate and distinct tracts of land not owned by respondents with the Interstate right-of-way projected through each tract so as to exaggerate the appropriation by the state and confuse and mislead the jury.”

We find no merit in these objections. “It is a well-established rule, applied in everyday practice in courts, that maps, drawings, and diagrams illustrating the scenes of a transaction and the relative location of objects, if shown to be reasonably accurate and correct, are admissible in evidence, in order to enable the court or jury to understand and apply the established facts to the particular case. The use of such items as testimony of the obj ects represented rests fundamentally upon the theory that they represent a method of pictorial communication of a qualified witness which he may use instead of, or in addition to, some other method. Evidence of this character is helpful in aiding the jury to visualize the objects and scenes in the action, and the contention that such evidence is calculated to impress the jury improperly has generally been rejected.

* * * * * *

“The admission into evidence of a map, plat, diagram, or other drawing, the manner and circumstances of its use, and its delivery to the jury upon their retirement, is largely within the discretion of the trial judge, and his determination in this respect will be disturbed on appeal only in case of manifest error or an abuse of discretion.” 29 Am.Jur.2d, Evidence, § 802, pp. 886-889. Of course, a plat should aid the jury, not confuse or mislead them. Here, defendants’ counsel, on presenting the plat, apologized for not having used distinguishing markings for the existing and newly acquired right-of-way. However, the fact that nothing was being taken for Route 61 was clearly explained. Likewise, the added taking for Route T was precisely described by defendants’ witnesses. To argue that the jury would not understand such explanations is to demean unjustifiably the intelligence of the jurors. Admittedly, had distinctive markings been employed on the plat, as much explanation might not have been necessary. However, the plat was not the basis for computation of the areas involved. It was merely explanatory and the added explanation which it required could not render erroneous the trial court’s ruling admitting it in evidence.

Appellant would equate this plat with the colored photographs held inadmissible in Faught v. Washam, Mo.Sup., 329 S.W.2d 588. The fact that the plat was colored cannot be relied upon as indication of a capacity to mislead or exaggerate. Color, by and of itself, is not so regarded. Reed v. Shelly, Mo.App., 378 S.W.2d 291, 302-303 [24-26]. Here, the plat was undoubtedly helpful in depicting the property taken from Killion and the property remaining. It permits a much better understanding of the areas affected than a surveyor’s description and the use of color did not destroy its merit.

Appellant also attacks the plat as having a tendency to exaggerate because it shows what will be taken for the 1-55 project from four tracts owned by others. At the most, this would amount to no more than depicting what anyone must have been immediately aware of, that the 1-55 project would affect others than Killion. (The plaintiff placed the plans and specifications for the project in evidence. The exhibit has not been filed here and no suggestion has been made that the exhibit showed the effect of the project on other lands, although ordinarily it might be expected to do so.) We do not agree with appellant’s apparent position that all matters depicted by a plat must be relevant and admissible on the issue being tried. Extraneous matter not reasonably calculated to affect the outcome does not render admission of the plat prejudicial error. 29 Am.Jur.2d, Evidence, § 784, p. 854.

In addition, at least a portion of the showing of how the project affected other land was necessary in order to demonstrate fully the route which Killion would have to take, via the Route T overpass, in order to gain access to the remaining 27.49-acre tract.

Appellant’s second assignment of error relates to the use by defendant Killion of an unrecorded plat for the purpose of demonstrating how a portion of the 75-acre tract lying along Routes 61 and T might be subdivided into lots. On this appeal, the objection is that the use of this plat injected a false issue of damages into the case because it permitted the jury to infer that the lots had a value which did not take into consideration the cost of development of the area for subdivision purposes. However, no such objection was raised at the trial. When Killion first sought to use the plat, the commission’s attorney objected on the grounds that the plat had not been recorded. However, on this appeal, the commission concedes that the plat might have been used for showing the suitability of the land to its highest and best use and no longer places its objection upon the fact that the plat had not been recorded. See 29A C.J.S. Eminent Domain § 160, p. 689. No objection was made at the trial on the basis of the ground of error now asserted. “An appellant is not permitted to broaden the scope of his objection on appeal beyond that made in the trial court.” Dwyer v. Globe-Democrat Publishing Co., Mo.Sup., 378 S.W.2d 570, 582 [8-10], We, therefore, do not consider the grounds now asserted.

Appellant’s final assignment of error is that the verdict is excessive and unsupported by substantial probative evidence and is the result of speculation, conjecture and exaggeration of appropriation.

Respondents produced six witnesses who testified to damages of between $120,-000 and $145,000. Killion testified to damages of $175,000. Two witnesses testified for the condemnor. One testified that the damage amounted to $54,000, the other $48,750.

In its argument on this point, appellant assigns a valuation of $40,000 for the 15 acres which might have been divided into lots of a value of $1,450 per lot and a value of $1,000 per acre for the other 60 acres of the tract (giving no value to the 27.49 acres remaining) and asserts that the highest verdict supported by the evidence would have been $100,600. However, this argument completely ignores the testimony of defendants’ witnesses who testified to damages of from $120,000 to $145,000. Apparently appellant ignores this testimony on the theory that it was based upon a before-taking valuation of the 160 and 75-acre tracts owned by Killion as a unit, and an after-taking valuation of the 160 and what remained of the 75-acre tract, again as a unit. We need not here detail the basis for the witnesses’ assumption because at the trial no obj ection was voiced by the commission to the witnesses’ testifying on such basis. In fact, the only occasion on which the matter was raised was when defendants’ counsel objected to the testimony of the commission’s witnesses who stated that their testimony was based upon the before and after value of the 75-acre tract, considered alone. The objection was overruled, but at no time was obj ection made to the testimony of defendants’ witnesses. That testimony, before the jury without objection, would support a verdict in excess of the $110,000 damages found. Having made no objection to such evidence, appellant cannot now assert that the verdict is not supported by the evidence.

Judgment affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    James CHISM, Respondent, v. W. O. COWAN, Appellant.
    No. 52184.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 9, 1967.

      John M. Belisle and Morran D. Harris, Osceloa, for appellant.
    Foust, Moudy & Jacobson, by Max Foust and Duke W. Ponick, Jr., Kansas City, Mo. Edward J. Murphy, Butler, for respondent.
   HIGGINS, Commissioner.

Action for damages for assault and battery resulting in verdict and judgment for plaintiff for $50,000 actual and $20,000 punitive damages.

Plaintiff’s first amended petition charged that defendant “without just cause or provocation, wilfully, wrongfully, and unlawfully assaulted the person of the plaintiff with a deadly weapon, by then and there shooting and wounding plaintiff from ambush by means of an automatic shotgun.” Defendant denied the petition and pleaded affirmative defenses that the shooting was an accident and that defendant used only that force which was reasonable and necessary in the accomplishment of an arrest of plaintiff for an alleged misdemeanor.

The incidents giving rise to this action occurred Sunday, June 7, 1964, on the east side of a pond or lake on a farm owned by defendant in Caplinger Mills, Cedar County, Missouri. Plaintiff and his companion, John Young, parked their car at the Sac River bridge, proceeded on foot through defendant’s field and, by their estimates, arrived at the lake with rods, reels, and bait about 7:15 p.m. “It was still daylight,” and the weather “was clear.” According to defendant, “it was extremely dark, and there was a fog came down over that lake from the south.” He first saw a “man’s form in the dark standing there” from his point on the west side of a tree “approximately 300 feet back from the lake” where he had gone to watch for persons who might come to fish his lake. “I waited a few minutes to see what was going on, and that form went out of sight and sat down, and in a few minutes I saw two forms stand up, and they were about 10 feet apart. From the distance, what I could see in the dark, I could just see a silhouette, so I started moving down in a sort of a little ravine, more straight west than to the northwest, and I moved down approximately a third of that distance across there.”

When plaintiff and John Young arrived at the east side of the lake, “we set down and started to bait up, and we no sooner got, we just was baiting our lines, getting to ’ throw out, when we heard a shot * * Plaintiff was then to the right, or north, and Young was to the left, or south, both facing west toward the pond. When plaintiff heard the shot, “John screamed like he was hurt, * * * and then I seen him slump forward, * * * sort of toward the lake, and then he kind of turned his back to the lake as he fell.” A second shot then “hit in the grass between us.” Plaintiff testified that no warning was given before defendant shot; defendant testified that before he shot he “hollered at them ‘I’ve got you, and don’t you run.’ And just as I said ‘I’ve got you, and don’t you run’ the party on my left made a dive for the lake and I shot him. * * * It- was a long distance, probably 200 feet, so I just peppered him real good. And about this time this other form disappeared.” This first shot struck John in the back of his head and shoulders.

Plaintiff stated that after the second shot, “I put up my hands and hollered that we give up, and then I stepped, looked around to the northeast and I seen Dr. Cowan running toward us with a shotgun, and I hollered ‘We give up, don’t shoot.’ And he was running at us hollering ‘I’ve got you now, God damn you, I’m going to kill you.’ And then I said ‘Please don’t shoot,’ and he said ‘Yeah, don’t shoot.’ He said ‘Turn around, you son-of-a-bitch, I’m going to kill you.’ ” Plaintiff was walking toward defendant during this plea and they were about “10, IS feet” apart at defendant’s command, “turn around." “Just as I turned around like that (to the left), why, I no sooner got turned around than he shot me.” Plaintiff did not threaten or attempt to run away from defendant.

John Young saw plaintiff as “he got up and put his hands up and walked toward him (Dr. Cowan).” He heard plaintiff say he gave up, his repeated pleas not to shoot him, and heard defendant state his intention to kill plaintiff. “He (defendant) kept repeating that he caught us and he was going to kill us, he was going to teach us not to fish in there.” Young did not see the shot that hit plaintiff but heard the third shot when plaintiff and defendant were about 10 feet apart and saw plaintiff as “he slumped up and bent over and fell on his face.” Young then got up and ran to the south. “He shot at me again. * * * I fell down.” He was then about 30 feet from defendant. He got up and ran again, and a fifth shot was fired when he was approximately 100 yards from defendant. “ * * * on the last shot one (pellet) hit me in the leg.”

Defendant’s version of these events was that after he fired the first shot the “form” on the right (plaintiff) went north. He fired the second of the five shots in that direction and then plaintiff came up from the water and said he gave up. He left plaintiff standing there and moved southeasterly and south toward John Young. He heard Young coming out of the water but did not see him. “I pulled the gun up to my hip and, in a southwesterly direction, behind him, I fired into the lake. * * * The minute I shot I could tell it didn’t hit the water, it hit something, and in the flash of the gun I realized somebody had been hit.” He judged this shot to have been from 75 feet away from plaintiff. He shot the fifth time into the air.

Doctor Cowan went from the scene of the shooting to a farmhouse a quarter mile away and called Alfred Oldham, Sheriff of Cedar County. “I told him that two men had been shot down at my lake, and one of them had been shot and I was afraid he was seriously hurt.” Sheriff Oldham testified that defendant said “I have killed one boy and I have wounded another.” When the sheriff met defendant at the road near the lake sometime later, defendant repeated, “I’ve killed a boy down here and I have wounded another one. * * * They’re going to stop stealing my fish.”

Deputy Sheriff Charles Lilly also was present when this meeting took place. John Young then appeared upon being assured that no more shots would be fired. According to Lilly, Young asked defendant why he shot Jim (plaintiff) and him when they were trying to give up. The defendant’s reply was that he had warned them to stay out and said he would kill anyone who came on there.

In addition to previously stated testimony from defendant, he testified that he built the lake on this farm which had been in his family for many years. He stocked the lake with fish and began experiencing difficulties with people fishing without his permission. He and Mrs. Cowan would travel three or four times a week from their home in Greenfield, forty miles away, to protect their property. In the evening of June 7, 1964, he caught two men fishing who ran, one of whom he later learned was John Young. On the evening in question Mrs. Cowan left in the car and defendant stayed at the farm. According to Dr. and Mrs. Cowan there were a number of “No Trespassing” type signs on the premises.

The assemblage at the road following the shooting and call to Sheriff Oldham included an ambulance driver and attendant and the entire group undertook to locate plaintiff, found lying near the pond. He was placed in the ambulance, taken to Cedar County Memorial Hospital in Eldorado Springs, Missouri, where he was admitted in critical condition, examined, and treated surgically by Dr. William C. Sunderwirth.

Doctor Sunderwirth found a badly mutilated area or hole in plaintiff’s right flank measuring three inches across. Plaintiff had lost nearly half his normal blood volume and had a gas pattern indicative of developing obstruction which prompted exploratory surgery. The surgery revealed severe internal bleeding and marked concentration of shot in plaintiff’s rib cage and liver. There was a hole in the liver in which Dr. Sunderwirth dropped three fingers without reaching the bottom. He put a piece of gelfoam 4" x 2" and two other pieces half that size into the liver opening to control the bleeding. Drains were put in plaintiff’s side and liver. Shock followed the surgery and plaintiff was then transported to additional medical facilities at Burge Protestant Hospital in Springfield, Missouri. He remained in critical condition until June 11, 1964.

While at Burge Hospital for eighteen days, plaintiff was attended by Dr. James W. Clawson. He received blood transfusions and fluids to restore his normal blood volume. On June 15 Dr. Clawson removed stitches and debrided necrotic tissue from the wound. Blood had to be withdrawn from the chest cavity by needle on June 16. Plaintiff returned to Cedar County Hospital upon release from Burge and recuperated there an additional six days. He was readmitted for two days February 22, 1965.

Prior to the shooting plaintiff, aged 27, life expectancy 42.32 years, was in good health with no liver or internal injuries or complaints. Dr. Sunderwirth was of the opinion that plaintiff had permanent disability referable to his damaged liver; that his life had been shortened by the shooting and injuries; and that he would have residual pain worsening as he aged. Dr. Claw-son testified that damage to the muscles of plaintiff’s back and laboratory tests indicative of liver damage were permanent disabilities resulting from the shooting. Dr. Nathan A. Masor examined plaintiff December 15, 1965. His X rays and liver function tests revealed concentration of shot in the liver and along the spine, functional damage to the liver and a problem with the excretory function of the liver. He attributed them and their permanency to the shooting. Dr. Masor also found a defect in the musculature of plaintiff’s back where an area of muscle, about 2[4 inches, was missing. This, unless repaired, could be subject to future damage even brought about by coughing. He, too, was of the opinion that the shooting shortened plaintiff’s life.

Dr. Thomas Ashley examined plaintiff on behalf of defendant June 28, 1965. He found a 2 or 2½ inch depressed scar in plaintiff’s right flank and tenderness along the right side of his abdomen down towárd the genitals. His X rays revealed metallic foreign bodies resembling shotgun pellets in the right lower chest and right upper abdomen, primarily in the back region of the body. He concluded plaintiff had suffered damage to the nerves to the side of the abdomen. He conducted no liver tests and gave no opinion on permanency of plaintiff’s injuries.

Plaintiff missed around four months of work and, upon his return, worked on a part-time basis for awhile. He was discharged from the Army National Guard for medical reasons attributed to the shooting. “ * * * lifting, stooping, or even at work, or anything I go to do, it bothers me. * * * When I sneeze it, boy, it really blows out, it just feels like my whole insides is going to come out the hole; and the same with hiccoughs.” Hospital and medical expense at the time of trial was $2,012.63, with future surgery recommended by Dr. Masor for repair of the back wound to avoid future injury.

Appellant charges that the court erred in “admitting and receiving irrelevant, immaterial, prejudicial, and inflammatory evidence * * This charge goes to Exhibit 3, a 12-gauge, automatic shotgun, full choke, Exhibit 5, a blood-stained T-shirt, Exhibit 12, a black and white photograph of plaintiff while in the hospital, and Exhibits 13 and 14, colored photographs of plaintiff’s injury.

Appellant’s position is that these admissions violated the rule of keeping “extraneous matters out of the evidence as far as possible,” Wimp v. Early, 104 Mo.App. 85 78 S.W. 343, 345; that the T-shirt was so inaccurately identified as to come within the rule that “[hjalf truths and false impressions go often hand in hand, and the law eschews them both,” Kelley v. Hudson, Mo.App., 407 S.W.2d 553, 556[2]; that neither the shotgun, the black and white photograph, nor the T-shirt tended to prove or disprove any issues, were not demonstrative evidence, and served only to inflame the jury, and that the colored photographs were gruesome and served only to inflame in violation of the caveat that colored photographs “should be faithful and accurate” and not “tend to exaggerate” in Faught v. Washam, Mo., 329 S.W.2d 588, 599-600[19].

The attack on the admission of the T-shirt or undershirt on the ground that it is false evidence is refuted by the record. Exhibit 5 was identified by Sheriff Oldham as “the undershirt that we taken off of him (plaintiff) out there,” and as the shirt that Jim Chism was wearing on the night of the occurrence. It was blood-stained and contained a number of holes, was in the same condition as when found on plaintiff on the bank of the pond, and had been in the sheriff’s possession and the possession of his successor, Sheriff Sherman Floyd, from the time he obtained it at the hospital to the time of trial. It thus was admissible, probative, demonstrative evidence of such matters as distance between defendant and plaintiff when the shot struck, the scattering and pattern of the shotgun pellets, plaintiff’s position, whether plaintiff’s front or back was to the gun, who was the aggressor, violence and type of assault, and location and seriousness of the wound, all of which were disputed. State v. Davis, Mo., 267 S.W. 838, 840[3]; State v. Lewis, Mo., 137 S.W.2d 465, 466[2]; Keen v. St. Louis I. M. & S. R. Co., 129 Mo.App. 301, 108 S.W. 1125, 1126[3]; State v. Tarwater, 293 Mo. 273, 239 S.W. 480, 484[9]; State v. Schmittzehe, Mo., 3 S.W.2d 235, 238; 22A C.J.S. Criminal Law § 713b, p. 969. Appellant emphasizes plaintiff’s testimony that he was wearing a hooded sweatshirt, which does not preclude his also wearing the T-shirt, and discrepancy, if any, would be for the jury.

Exhibit 3 was identified by Sheriff Oldham as “the gun that we taken off of Doc Cowan.” It had been in his or his successor’s possession since being taken from defendant at the road near the lake. Defendant stated that it was the gun with which he shot plaintiff. It was admissible, probative, demonstrative evidence on the disputed issue of alleged intentional shotgun assault and wounding of plaintiff by defendant. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299[7]; State v. Ray, Mo., 354 S.W.2d 840, 842[2,3]; State v. Cooper, Mo., 259 S.W. 434, 436[3].

Exhibit 12 was identified by Doctor Sunderwirth and Exhibits 13 and 14 were identified by Doctor Clawson as being fair and accurate representations taken of plaintiff’s back while he was in the hospital showing the injury without distortion or exaggeration. They thus complied with the requirements for admissions of color and black and white photographs, and were probative, demonstrative evidence on nature and location of plaintiff’s shotgun wound, a disputed trial issue. Faught v. Washam, supra, “does not interdict the use of color photographs or transparencies as such. It gave express approval (which we now reaffirm) to the use of colored photographs under the same limitations and restrictions as are applicable to black and white photographs.” Boydston v. Burton, Mo., 379 S.W.2d 536, 542[7], See also Reed v. Shelly, Mo.App., 378 S.W.2d 291, 302-303[24-26].

Appellant charges that the court erred “in permitting Plaintiff, on cross-examination of Defendant and Defendant’s witnesses and on argument to the jury, to inject false issues into the case calculated to prejudice and inflame the jury against the Defendant.”

Appellant recognizes “that great latitude is granted counsel in the cross-examination of witnesses for the purpose of showing interest, prejudice, or feeling, or to determine the truth of the testimony given.” His contention is that the cross-examination permitted plaintiff to “lug into the case irrelevant facts and insinuations,” Bellovich v. Griese, Mo., 100 S.W.2d 261, 263[3]; Better Roofing Materials Co. v. Sztukouski, Mo.App., 183 S.W.2d 400, 403[7]; and “to get a discreditable matter before the jury for purposes not allowable,” Ephland v. Missouri Pac. Ry. Co., 57 Mo.App. 147, 162, 163.

The argument is directed generally to some twenty pages of plaintiff’s cross-examination of defendant without specific reference to those matters which are “lugged in” or “not allowable” discrediting defendant. His argument is that by cross-examination questions plaintiff “tried to create in the minds of the jury * * * that the Defendant was of a vicious nature, that he had shot at other people, that even though he was a doctor he had no regard for human life.”

There was no attempt by plaintiff to discredit defendant by attempting to prove any such matters or occurrences by independent witnesses, and it has long been the rule in Missouri that on cross-examination “a witness may be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.” Muller v. St. Louis Hospital Ass’n, 73 Mo. 242, affirming 5 Mo.App. 390, 401. See also Asadorian Rug Co. v. Chandeysson, Mo.App., 144 S.W.2d 199, 202[6], and see discussion by Arthur N. Bishop, Jr., Impeachment and Rehabilitation of Witnesses by Character Evidence in Missouri, Cross Examination to Question Character, 20 Mo. Law Review, pp. 149-156. This rule has been applied, for example, to hold it an abuse of discretion not to permit asking a witness on cross-examination if he had not admitted to others that he had burned a schoolhouse, and if he had not asked another to help him load stolen cattle, State v. Crow, 337 Mo. 397, 84 S.W.2d 926, 929[6-8]; that it is within the court’s discretion to authorize asking a witness on cross-examination if he had committed an abominable crime, no claim of privilege being made, Wendling v. Bowden, 252 Mo. 647, 161 S.W. 774, 789[4]; and to permit cross-examination as to whether the witness had lived with a woman not his wife, State v. Blocker, Mo., 278 S.W. 1014, 1015-1016[4,5]. It was clearly within the court’s discretion to permit plaintiff’s cross-examination of defendant and it is not contended that the court abused such discretion.

The foregoing charge also refers to the same items as being error in connection with plaintiff’s closing argument. No such contention has previously been presented to the trial court and, accordingly, is not for review. Civil Rule 83.13(a) V.A.M.R., Wolfe v. Harms, Mo., 413 S.W.2d 204, 213[17].

Appellant also complains of admission of Exhibit 37 in evidence, during cross-examination of defendant. He claims, without authority, that it did not prove or disprove any issue in the case and was not evidence of the issue upon which offered.

The issue was defendant’s income in connection with plaintiff’s petition for punitive damages. The referable cross-examination was: “Isn’t it a fact that you have been averaging, from the practice of medicine and from the operation of your business, from fifty to a hundred thousand dollars per year? A. No, sir.” To impeach defendant, Exhibit 37, a certified copy of Dr. W. O. Cowan’s petition against Clovis Gibson, et al., constituting the board of Lockwood Memorial Hospital, filed with his authorization by his attorneys in that action, was received in evidence. It reflected that Doctor Cowan claimed a loss of income of $100,000 in a period of approximately two years by reason of his exclusion from the Lockwood Hospital. The use of the petition for purposes of impeachment was proper. Helton v. Huckeba, 365 Mo. 93, 276 S.W.2d 78, 82[4]; Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122, 125[3].

Appellant charges that the court erred in giving Instruction 1Á and refusing Instructions 7 and 8.

Instruction 1A directed a verdict for plaintiff if the jury believed:

“First, defendant intentionally shot the plaintiff, and
“Second, defendant thereby caused plaintiff bodily harm.”

This is MAI 23.02. The statement demonstrates it to have been supported by substantial evidence and no affirmative defenses were submitted to be negated. Under such circumstances it was the required instruction “to the exclusion of any other on the same subject.” Civil Rule 70.01(b), V.A.M.R.

Instruction 7 as offered by defendant was, as stated by appellant, “merely a statement of the law, as found in Section 560.565, RSMo 1959 * * *,’’ which provides: “Every person who shall be convicted of wrongfully and wilfully taking fish from any private pond without the consent of the owner thereof, shall be adjudged guilty of a misdemeanor * * A comparison shows the instruction to be an exact recital of the statute, and as such, was simply an abstract statement of the law requiring no finding by the jury. Such instructions tend to mislead and confuse the jury and are properly refused. Endermuehle v. Smith, Mo., 372 S.W.2d 464, 468[7]; Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993, 995[3, 4], 125 A.L.R. 674.

Appellant’s position is that issues were joined on his affirmative defense that he, “even though a private citizen and not an officer, had a right to arrest the Plaintiff for an offense committed in his presence and to use such force as was reasonable and necessary under the circumstances to accomplish the arrest.” He tendered his position by refused Instruction 8:

“The Court instructs the Jury that under the laws of the State of Missouri, a private citizen has the right to make an arrest for a crime committed in his presence.

“Therefore, you are instructed that your verdict must be for the defendant, if you find:

“(a) That plaintiff was fishing in defendant’s lake;

“(b) That notice was given by the defendant to plaintiff of his intention to arrest him;

“(c) That the plaintiff thereafter attempted to flee to avoid being arrested;

“(d) That the force used by the defendant was reasonable and necessary to prevent an escape by plaintiff;

“(e) That the injuries received by plaintiff were caused by the acts of plaintiff and his companion in attempting to flee to avoid an arrest.”

A defendant is entitled to submit his affirmative defenses and thus avoid any appearance of a directed verdict for plaintiff, but he must tender their submission by proper instruction. The foregoing instruction is not a proper instruction because, even assuming the opening abstract statement is accurate, the instruction thereafter omits to require a finding that any crime was committed in defendant’s presence for which a citizen’s arrest could be made. Gray v. Earls, 298 Mo. 116, 250 S.W. 567, 572[1]. Hypothesis (a) requires a finding only that plaintiff was fishing, not that plaintiff wrongfully and wilfully took fish from defendant’s pond without his consent as required by the statute, Section 560.565, supra, relied upon by defendant. Under such circumstances, refusal of the instruction was proper “for the omission of (a) constitutive factual element essential to the contemplated favorable determination of the ultimate factual issue instructed upon.” State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W.2d 1080, 1083[5]; Hatfield v. Thompson, Mo., 252 S.W.2d 534, 544[1]; Banta v. Union Pac. R. Co., 362 Mo. 421, 242 S.W.2d 34, 42[10].

Appellant charges that the verdict “was so grossly excessive as to demonstrate that it was the result of bias and prejudice against the Defendant.” Lehnick v. Metropolitan St. Ry. Co., 118 Mo.App. 611, 94 S.W. 996; Buchholz v. Metropolitan Life Ins. Co., 177 Mo.App. 683, 160 S.W. 573; Prospect News Printing Co. v. Swindle, Mo.App., 15 S.W.2d 922; 39 Am.Jur., New Trial, § 121, p. 132.

The nature, extent and permanency of plaintiff’s injuries, the attendant pain and suffering, and the special damages have been stated previously and such items are substantial evidence in support of the $50,000 award for actual damages. The intentional shooting of a person in the back with a shotgun at close range as shown by the evidence and found by the jury is the type of act for which punitive damages are provided, and the $20,000 award here is not out of line with the purpose of punitive damages to punish defendant and to deter him and others from like conduct. Appellant’s argument goes only to the permanency of plaintiff’s injuries and there is substantial evidence favoring plaintiff on that issue. Appellant points to no specific indication of bias or prejudice and review of the record presents no such evidence. Apparently, appellant would have the court infer such from the size of the verdict alone, but this court “may not weigh the evidence and infer prejudice and bias from the size of the verdict.” McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361, 368-369 [7, 8].

Finally, appellant argues for new trial “[f]or the cumulative prejudicial effect of the errors discussed,” Faught v. Washam, supra, 329 S.W.2d l.c. 604[30]; but since the trial court committed no error, such theory could have no application.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.


author: FINCH, Presiding Judge.

text:
    Charles E. BRADLEY and Leona M. Bradley, his wife; Charles E. Bradley, Guardian of the persons and estates of Edward Rex Bradley and Carol Ann Bradley, minors; Paul Nichols and Mildred Nichols, his wife; and William H. Klinger and Belle L. Klinger, his wife, Plaintiffs-Appellants, v. ELSBERRY DRAINAGE DISTRICT, a Drainage District Corporation, Defendant-Respondent.
    No. 52859.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1968.

      Mcllroy & Millan, Bowling Green, Myrl B. Sternke, Palmyra, for appellants.
    Jonathan E. Clarke, Elsberry, Andrew J. Murphy, Jr., Edward A. Glenn, Louisiana, for respondent.
   FINCH, Presiding Judge.

This appeal by plaintiffs is from an adverse judgment in a suit to quiet title. They sought to establish title to certain lands in themselves, subject to a right-of-way easement for levee purposes in defendant drainage district. We have jurisdiction because title to real estate is involved. Article V, § 3, Constitution of Missouri, 1945, V.A.M.S.

Defendant is a drainage district corporation, incorporated by the Circuit Court of Lincoln County on January 3, 1911. Thereafter, on June 29, 1916, in a proceeding instituted by defendant, the Lincoln County Circuit Court entered a judgment in condemnation involving a large number of tracts. That decree confirmed the report of commissioners assessing benefits and damages and provided that title should pass to the district upon payment by it of the sums for which judgment was entered. The suit included certain tracts in Pike County which were then owned by E. and C. Beall, W. O. Gray and W. A. Irwin and which are the ones involved in this suit. Plaintiffs claim as successors in title of the Bealls, Gray and Irwin.

In 1916 defendant constructed on the lands condemned an earthen levee to protect lands lying in the drainage district from the Mississippi River. Defendant has not abandoned that levee and has continued to maintain it.

Plaintiffs, until 1964, owned approximately 1987.24 acres which were immediately west of said levee. In 1964 plaintiffs sold this acreage to the United States for the Mark Twain National Wildlife Refuge. It was disclosed in oral argument that this suit was instituted after plaintiffs had sold their 1987.24 acres because, if successful, they would receive additional compensation from the United States for acquisition of their underlying fee in the property on which the levee is located.

The position taken by the plaintiffs is that the defendant district in the condemnation proceedings in 1916 acquired merely an easement for the construction and maintenance of a levee and did not acquire fee simple title. This involves, first, a determination of whether the applicable statute authorized condemnation of fee simple title by the drainage district and, second, assuming that it did so authorize, whether the district in fact acquired fee simple title in the proceedings.

It is conceded by all parties hereto that the condemnation proceedings were brought pursuant to § 5513, RSMo 1909. That section authorized construction and maintenance of “main or lateral ditches, canals, levees, dams, sluices, reservoirs, holding basins and floodways.” The statute also authorized the district to “acquire, by donation or purchase, and, if need be, condemn any real estate, easement, railroad right of way, sluiceway, reservoir, holding basin or franchise.” Appointment of commissioners, when necessary, and determination by them of benefits and damages, was authorized. The section then concluded with this language: “and provided further, that whenever the commissioners award to any owner of land, as damages to said land, the full market value of such land, and the amount of said award is paid for by said district, then, and in that event, the title, use, possession and enjoyment of said land so condemned shall pass from said owner and be vested in said district, and subject to .its use, profit, enjoyment and final disposition in the same manner and with like effect as lands belonging to the county.”

An examination of the Session Acts of 1909 (Laws Missouri 1909, p. 620) discloses that House Bill 651 was enacted at that session as an amendment to Chapter 122, Article 3 of the Revised Statutes of Missouri of 1899, which chapter related to and was entitled “Swamp and Overflowed Lands.” The new section added by said amendment was designated as § 8259b in said chapter on swamp and overflowed lands. In the revision of the Statutes in 1909 the section was renumbered as § 5513 and the reviser moved it from the chapter on swamp and overflowed lands to the chapter and article relating to circuit court drainage districts.

We conclude from our examination of the provisions of said section that the legislature intended to authorize circuit court drainage districts to acquire fee simple title to property being condemned. Plaintiffs concede that the language of the statute is broad enough to permit acquisition of fee simple title for some purposes. For example, they state that the district could acquire the fee for a site for buildings or a pumping station, but they contend the language is not broad enough to permit acquisition of the fee for right-of-way purposes. They mention that the statute specifically grants a right to acquire right-of-way. However, in the language from the statute heretofore quoted it appears that the district is authorized to “condemn any real estate, easement, railroad right of way, sluiceway, reservoir, holding basin or franchise.” This language permits the district to condemn existing outstanding interests which are less than a fee. It does not say that condemnation of “real estate” is to be limited to things such as pumping stations or buildings, and the statute does not say that only an easement is to be acquired for right-of-way purposes. It is difficult to see wherein a pumping station erected in connection with a levee .is any more permanent or would require any different kind of interest than the levee which the pumping station serves.

It is true, as plaintiffs point out, that the statute did not use the words “fee simple,” but such words are not essential to a finding that the statute authorized the acquisition of fee simple title. As Mr. Justice Oliver Wendell Holmes, then a Justice of the Supreme Judicial Court of Massachusetts, said in City of Newton v. Perry, 163 Mass. 319, 39 N.E. 1032, “There are no sacramental words which must be used in a statutory power to take and hold lands in order to give a right to take the lands in fee.” Rather, the question must be determined on the basis of whether the language of the statute as a whole indicates an intention to authorize the acquisition of the fee or something less than the fee.

The argument of plaintiffs overlooks significant language .in the statute. For example, the section provides that “title, use, possession and enjoyment” of land condemned passes from the owner to the district. The statute goes on to provide that the commissioners shall ascertain the “full market value of such land” as damages. This is indicative of acquisition of the whole title. It further provides that when this has been done and the money paid, “the title, use, possession and enjoyment of said land so condemned shall pass from said owner and be vested in said district.” These words indicate an intention to authorize the acquisition of more than a mere easement. They speak of title vesting in the district on payment of the full market value of the land. The words of the New Jersey Court of Error and Appeals in Carroll v. City of Newark, 108 N.J.L. 323, 158 A. 458, 461, 79 A.L.R. 509, 513, are pertinent:

“The commissioners in condemnation are required by the statute to determine the fair market value of the ‘lands and real estate’ to be taken, and if their award be appealed from the trial by jury shall be to assess ‘the value of the said property’ — provisions not inconsistent with the taking of an estate of inheritance.

“Significance must attach to the statutory expression ‘the title to and the right of possession of such property shall immediately become vested in such city. It is the ‘title’ of which the statute speaks, and that is a phrase which by common acceptance, as well as in the books, means full title. * * * Likewise ‘vest’ is a word of substantial import * *

After further discussion, the court concludes, 108 N.J.L. 1. c. 329, 158 A. l. c. 461, 79 A.L.R. l. c. 513: “The purview of the statute may not, we think, be cramped into an easement or a right in the nature of an easement. The city was authorized to acquire a fee.”

Our conclusion is strengthened by the fact that the statute provides that the district is to have the “use, profit, enjoyment and final disposition” of the land. These are words which further indicate the legislature’s intention to authorize acquisition of the fee. An easement for a particular use, such as a levee, would cease to exist if the district discontinued its use for that purpose and there would be no occasion in that event to authorize final disposition of the land by the district. It would have nothing of which to dispose if the limited use for which the easement was acquired had terminated. The power of disposition conferred on the district indicates that fee simple title was contemplated.

In this connection, we further note that the concluding words of the section provide for “final disposition in the same manner and with like effect as lands belonging to the county.” To what does this language refer and what is its significance ? An examination of Chapter 122, Article 3, RSMo 1899, discloses that sections therein provided for conveyance of swamp lands by the state, by patent, to the counties wherein such lands were located. The sections further provided for subsequent sale and disposition of these lands by the county “in like manner and with like effect as is or may be provided by law for the conveyance of other real estate belonging to their respective counties.” §§ 8244-8249, RSMo 1899. This court has previously held that title conveyed thereunder by the state to the county and by the county to individuals was fee simple title. General American Life Ins. Co. v. Dunklin County, 339 Mo. 289, 96 S.W.2d 380. It is our conclusion that the concluding language of § 8259b referred to these preceding sections in the same chapter and article relating to disposition of swamp lands by the counties, and indicates a legislative intention that the drainage district would own and have the power to dispose of fee simple title.

The fact that the reviser of statutes transferred § 8259b, as adopted at the 1909 legislative session, to another chapter and article and renumbered the same did not change the fact that the section was enacted as an amendment to the chapter on swamp and overflowed lands and that we must so recognize in ascertaining the legislative intent.

Plaintiffs call attention to the fact that this section under which the property was condemned provided that the condemnation proceedings should be handled in the same manner as suits relating to interests in land taken for telegraph, telephone, gravel and plank and railroad purposes, in all of which only easements are acquired. They assert that this indicates a legislative intention that the drainage district would be limited to the interest in land which the other named agencies could acquire by condemnation. That conclusion does not logically follow. The statute merely prescribed the procedure to be followed. It did not indicate by that language the character of the interest which it authorized drainage districts to acquire.

Plaintiffs cite the case of Houck v. Little River Drainage District, 343 Mo. 28, 119 S.W.2d 826, as construing the words in the statute in question to mean a right-of-way easement. Actually, that case did not involve the title of the district to the land condemned for levee purposes or the nature of the interest acquired therein. The specific question decided was whether, in condemning a strip of land for the levee, the district also acquired the underlying fee in an adjoining road right-of-way so as to justify an enlargement of the levee onto the road right-of-way. The court held that the district acquired only the land which it condemned and not any interest in the adjacent road easement. In so holding, the court stated, 119 S.W.2d l. c. 831: “Under the strictissimi rule, Sec. 5513, R.S. 1909, could not reasonably be construed to mean that any interest in any land passed, upon condemnation by defendant of the right of way of Ramsey Creek Diversion channel and levee, except said land (See Sec. 5513, R.S. 1909, supra), that is the right of way. Able counsel do not call our attention to any case and we find no case supporting the contention that by acquiring the right of way by condemnation of Ramsey Creek Diversion channel and levee, defendant thereby acquired the right to superimpose upon the adjacent rockroad easement an additional public servitude, and we rule that defendant acquired no such right.” It is clear from the above language that the court did not hold that the right-of-way for the channel and levee was merely an easement.

The legislature has the right by statute to authorize a drainage district to acquire fee simple title for rights-of-way. There is no constitutional provision prohibiting such action (except as to rights-of-way for railroads, Art. I, § 26, Constitution of Missouri, 1945) and the extent of power of condemnation to be conferred is left to the discretion of the legislature. Plaintiffs argue that it is unthinkable that the legislature intended to or would permit condemnation of a strip of land several miles long but only 100 to 150 feet wide and then grant to the district the power of final disposition of the property. As this court pointed out in City of Moberly v. Lotter, 266 Mo. 457, 181 S.W. 991, 994, “A difference of opinion may exist as to the wisdom of statutes of this character,” but this question is within the discretion of the legislature. What the legislature intended, of course, we must conclude from the language which it used. The situation is well stated in Valentine v. Lamont, 13 N.J. 569, 100 A.2d 668, 672: “Where a statute authorizes the taking of a fee, it cannot be held invalid on the ground that a lesser interest only was required to accomplish the purpose the Legislature had in view. This is a legislative and not a judicial question.”

Having determined that § 5513, RSMo 1909, authorized acquisition of fee simple title by defendant district, the question remaining is whether the district in fact sought to and did acquire such an interest in the rights-of-way acquired in the 1916 condemnation proceedings.

The original petition in condemnation in the 1916 suit apparently has been lost and could not be located by the parties. Hence, we cannot look to it to ascertain the interest which the district sought. They did, however, locate and introduce in evidence the commissioners’ report and the judgment in condemnation.

Plaintiffs point out that the commissioners’ report referred to “land necessary to be taken and used for such right-of-way and improvements.” Also, the judgment of the court entered June 29, 1916, in every instance but one, used the term “right-of-way” in referring to that which the defendant district acquired. The one exception was where the judgment used the words “appropriated in whole.” The use of the term “right-of-way,” say plaintiffs, indicates an intention by the commissioners only to assess damages for a right-of-way interest in the land and an intention by the court to grant only a right-of-way, and that common usage of the term “right-of-way” indicates an easement rather than a fee.

These contentions by plaintiffs, however, ignore other language used in the report and the judgment. We may not ignore this other language and limit ourselves to what the term “right-of-way,” without more, might possibly mean. The fact is that both the commissioners’ report and the decree in the condemnation recite that the full cash value of the land necessary to be taken was determined and awarded. In referring to the E. and C. Beall tracts, the judgment says, “and the lands shall pass from the said E. and C. Beall and be and are vested in the said Elsberry Drainage District subject to its use, employment and final disposition.” Again, in a reference to the W. O. Gray tract, the judgment recited, “and the title of all of the above described tract of land is vested in the said Elsberry Drainage District subject to its use, profit and final disposition.” Toward the end of the judgment, in referring to all tracts and after confirming the amounts awarded to the landowners, it says, “and when such amounts are paid, the title of said lands shall pass to the said Elsberry Drainage District.”

These expressions do not indicate an intention to vest a mere easement in the district. Rather, they indicate an intention to transfer fee simple title, even though the words “fee simple” were not used. Obviously, it would have been preferable if those words had been employed. They would have simplified the problem and no doubt have avoided this litigation. The fact remains, however, as we have pointed out, that a fee simple title can be sought and transferred without use of these particular words, and we can and do determine that such was the intention and effect here. Plaintiffs have cited 30 C.J.S. Eminent Domain § 449, p. 623, as authority that only an easement was acquired, but the language of that section recognizes that the language of the statute and of the judgment, order and other documents must be considered. The words “right-of-way” were used simply to indicate the purpose for which the district was acquiring the lands and not the extent of the interest being acquired.

As noted above, there was some variance in language used in the decree with respect to various tracts. This is not significant, however, because all were acquired for a single levee and the same interest in the land necessarily would be acquired with respect to all of the tracts. The variance indicates merely that the decree was not as carefully written as it might have been in order to make the language both uniform and crystal clear.

Plaintiffs cite the case of Ashurst v. Lohoefner, 170 Mo.App. 327, 156 S.W. 805, wherein the Kansas City Court of Appeals held that a landowner was not liable for treble damages to a contractor for cutting timber on the drainage district right-of-way originally acquired from the landowner. Plaintiffs recognize that this was a county court drainage district, organized under another statute, but assert that the case indicates that a drainage district needs only an easement and that there should be no difference in the character of title acquired by a circuit court district and a county court district. There is nothing in the Ashurst opinion to indicate whether the drainage district had acquired the easement by condemnation or by deed, nor what kind of an interest had been sought, or how it was described in the decree or deed. The drainage district itself was not even a party to the suit. In the course of the opinion, the Court of Appeals makes the statement that the fee of land over which highways or streets are laid out remains in the owner, with an easement in the public, and they were therefore satisfied that when the landowner cut timber on the right-of-way, he would not be guilty under the trespass statute. Obviously, that opinion did not, and could not, undertake to determine title because jurisdiction of cases involving title to real estate is vested exclusively in the Supreme Court. The case is not authority for a holding in this case that the defendant district herein acquired only an easement in the 1916 condemnation proceedings.

We have examined the other authorities cited by plaintiffs. We will not lengthen this opinion by analyzing them. We find nothing in those authorities to alter the conclusions we have reached.

The trial court assigned as an additional ground for its action that the plaintiffs were guilty of laches and were estopped from asserting any interest in the lands on which the levee was constructed, but in view of the conclusions we have reached, there is no occasion for us to consider that question.

The judgment is affirmed.

All of the Judges concur.

      . On September 28, 1964, the court granted authority to the district to continue perpetually.

      . The article and chapter of which this section was a part was amended in 1913 (Laws Missouri 1913, p. 290) but § 53 of the new act permitted existing districts to proceed under existing law, and there is agreement that defendant district proceeded under § 5513, RSMo 1909, without amendment.

      . The contractor was digging a drainage ditch for the district and the latter had authorized use of standing timber for that purpose.


author: PRITCHARD, Commissioner.

text:
    Esther BOHLER and Robert Bohler, Appellants, v. NATIONAL FOOD STORES, INC., Herbert F. Lewis, Henry L. Lewis, Susan S. Lewis, his wife, Marlin A. Lewis and Barbara Lewis, his wife, Respondents.
    No. 53070.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1968.

      Sherman Landau and Anthony Canzo-neri, St. Louis, for appellants.
    Israel Treiman, Gary S. Heifetz, Shifrin, Treiman, Schermer & Susman, St. Louis, for defendant-respondent, National Food Stores, Inc. ■ ■
    M. E. Stokes, F. Douglas' O’Leary, Mos-er, Marsalek, Carpenter, Cleáry & Jaeckel, St. Louis, for respondents Herbert F. Lewis,’ Henry L. Lewis, Susan S. Lewis, Marlin A. Lewis and Barbara Lewis.
   PRITCHARD, Commissioner.

Appellant Esther Bohler, on her claim for personal injuries occasioned by a fall upon the entrance pavement and sidewalk of a shopping center, had a jury verdict and ensuing judgment against her. The verdict and judgment of appellant Robert Bohler on his claim of loss of his wife’s services occasioned by her injuries were likewise against him. The claims for damages were $35,000 each.

Reversible error is contended by appellants by reason of the giving by the court of Instruction No. 8, submitting the proposition that the primary duty to keep the exterior portions of the premises (sidewalk and parking lot where Mrs. Bohler fell) was upon lessors (respondents Lewises), and such duty was not upon the lessee under the lease (respondent, National Food Stores, Inc.). It is said under Point I that the prejudicial error in this instruction is the incorporation by reference of the lease “because it concerned a matter not in issue in this case.” Under Point II, it is contended that the court erroneously gave six converse instructions to offset appellants’ four verdict-directing instructions contrary to M.A. I. 29.01: “Defendant may give only ONE converse for each verdict directing instruction.” By Point III, appellants contend that the trial court erred in excluding testimony concerning the apparent health of appellant Robert Bohler (who did not appear and testify) because that allowed respondents’ counsel to comment unfavorably upon his failure to testify.

On Friday, April 2, 1965, about 9:30 a. m., Mrs. Bohler went shopping with her husband at National’s store. Mr. Bohler left their automobile about 10 or 12 cars away from the store entrance, and walked upgrade toward the front entrance. The day was dry and Mrs. Bohler was watching where .she was stepping as she walked. When she was on her way, walking with no difficulty, sh'e either kicked her foot or her toe or heel caught in something and threw her. On cross-examination she testified that there were “bad places in it from the parking ground to the sidewalk — I guess you’d call that a sidewalk — and my foot must have hit one of those had places because it is quite a bit there broken, broken, whatever you call that, concrete.” The broken part was on the concrete. “Well, you walk up from the parking lot to it; the sidewalk is higher than what the parking lot is and it is bad in there.” In some places it was a couple of inches higher and in some it was level. Mrs. Bohler knew it was there at the time she tripped over it, and having gone to the store every week she knew of concrete broken out all along the walk for about a year. The bad spots were in the sidewalk; she had seen them and always tried to step over, but this time her foot must have hit and threw her. The point where she tripped was right at the sidewalk where it was broken — all along from the parking lot to the sidewalk it was broken. When she fell she was lying completely on the concrete entrance. Mrs. Bohler punched a hole in Lewises’ Exhibit A, a photograph, which was then encircled in green, as the place on the concrete upon which she fell. She placed an “X” on the exhibit (near the edge of the concrete, but on the pavement) where she believed she tripped. This exhibit shows the concrete to be some distance higher than the adjoining asphalt, as does also Exhibit B. Mrs. Boh-ler visited the store a year after the fall, and testified that the area was then the same as it had been and as shown in the exhibits. Plaintiffs’ Exhibits Nos. 8, 9 and 10 show the same entrance area to the store, but are focused some distance to the right of where Mrs. Bohler indicated that she tripped and fell. Nevertheless, those exhibits, taken shortly after the fall, show in more detail the edge of the sidewalk, with chips of concrete out and higher than the adjoining asphalt pavement, which is shown to have cracks in it.

The evidence was sufficient to justify a finding by the jury that there was a defect in the pavement and sidewalk which had existed for a sufficient length of time (a year under Mrs. Bohler’s testimony) for respondents to have corrected it or, having knowledge, to have been under duty to warn of the defect. As the photographs show, the sidewalk projected upward above the asphalt a sufficient distance to have caused Mrs. Bohler to catch her toe or heel, as she testified, and fall upon the sidewalk. But the main thrust of both respondents’ contentions is that Mrs Bohler knew of the defective condition and therefore she cannot recover. Her testimony on direct examination in this respect is that she knew the sidewalk, in some places a couple of inches higher than the parking lot, was there when she tripped over it; she went to the store every week and had seen the area about a year or more prior to the time she tripped over it. “Q. So, that for a year, going every Friday to National Food Stores, you did see the existence of this bad place; is that what you called it? A. Well, whatever it is, broken concrete broke out all along the walk, and it is still broke.” “Q. Was there broken area all along there? A. No, some places weren’t so bad and some were worse. Q. Did you yourself see places that weren’t so bad? A. Yes, I had seen them and I always tried to step over, but this time my foot must have hit and throwed me. Q. Were you watching where you were going at that time? A. I was watching; I always do.” There was nothing in the evidence that Mrs. Bohler’s attentiveness to her path and the defect existing was in any way distracted. There was nothing to indicate that her age (seventy-eight at the time of injury) had anything to do with her alertness or would cause her to undergo a moment of forgetfulness so as to cause Kitsap County Transp. Co. v. Harvey (C.A. Ninth Cir.), 15 F.2d 166, cited by appellants, to be applicable. Nor would the situation apply in Bean v. City of Moberly, 350 Mo. 975, 169 S.W.2d 393, where the plaintiff had some knowledge of the city’s repairs in progress but disclaimed awareness of the defect or danger causing his injury. In Howard v. Johnoff Restaurant Company, Mo., 312 S.W.2d 55, 57 [2-4], it was said, “The basis of the defendant-proprietor’s liability is defendant’s superior knowledge of an unreasonable risk of harm of which the invitee does not or in the exercise of ordinary care should not know. Thus, such a defendant is not liable for injuries due to dangers which are obvious, or as well known to plaintiff as to defendant. And in such circumstances there is no duty to warn [the submission here of negligence of appellants] because the invitee has the information which would be conveyed by a warning. Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756. See also Stafford v. Fred Wolferman, Inc., Mo. Sup., 307 S.W.2d 468; Wattels v. Marre, Mo.Sup., 303 S.W.2d 9; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723.” As in the Howard case, supra, the “instant case is not one where an invitee has reason to expect a condition of one kind and without warning is met by another.” 312 S.W.2d 58, 59. See also Heine v. John R. Thompson Co., Mo., 330 S.W.2d 867, 870, “In these circumstances Miss Heine was not unexpectedly confronted with an unknown or lurking hazard. Thus, even though there was proof of a wet and dangerously slippery floor and a resulting fall, there is no evidence from which it is a permissible inference, within the rule, that the proprietor’s negligence caused the plaintiff’s injuries. (Citing cases).” See further, Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, 373 [7]; Heidt v. Lauless, Mo.App., 348 S.W.2d 599; and Ecker v. Big Bend Bank, Mo.App., 407 S.W.2d 45.

Under the foregoing cases appellants made no submissible case against respondents. It is therefore unnecessary to consider appellants’ assignments of error in the giving of instructions and exclusion of testimony as to why Mr. Bohler did not testify at the trial. Osborn v. McBride, Mo., 400 S.W.2d 185, 188 [1].

The judgment is affirmed.

BARRETT, C., not sitting.

STOCKARD, C., concurs.

PER CURIAM.

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

All of the Judges concur.