author: HUNTER, Presiding Judge.

text:
    S. S. NUCKOLS and Helen Nuckols, Plaintiffs-Respondents, v. ANDREWS INVESTMENT COMPANY, a Corporation, Defendant-Appellant, and Andrew J. Johnson and Eileen M. Johnson, Defendants-Respondents.
    Nos. 23615, 23617.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Claude M. McFarland, McFarland, Ritt-man & Krimminger, Walter A. Raymond, Raymond, West & Cochrane, Kansas City, for appellant.
    James W. Benjamin, Thomas E. Sims, Rogers, Field & Gentry, Kansas City, for plaintiffs.
    Robert G. Oberlander, Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, John B. Yeaman, Platte City, for respondents.
   HUNTER, Presiding Judge.

Plaintiffs-respondents, S. S. Nuckols and Helen Nuckols, obtained a judgment for $15,000 for the wrongful death of their minor son, William, against defendant-appellant, Andrews Investment Company, a corporation.

William Nuckols was killed on July 11, 1960, while employed on a farm in Platte County, Missouri, by defendants-respondents, Andrew J. and Eileen M. Johnson. Decedent was found on a tractor in the hole of a collapsed low water dirt and concrete bridge on the farm.

The jury’s verdict was against defendant Andrews Investment Company and was in favor of defendants, Andrew and Eileen Johnson. Andrews Investment Company has appealed seeking an outright reversal or at least a new trial, and plaintiffs, admittedly solely as a precautionary measure, and only in the event of success in this appeal by Andrews Investment Company, seek to have the judgment amended or modified so as to make it a joint judgment against all the defendants or in the alternative seek a new trial as to defendants Johnson on the question of liability alone.

None of the defendants offered any testimony at the trial, preferring to stand on their unsuccessful respective motions for a directed verdict. On this appeal they urge numerous contentions, including (1) failure of plaintiffs to make a submissible case; (2) contributory negligence as a matter of law on the part of decedent; (3) prejudicial error in certain instructions and (4) ex-cessiveness of the verdict.

Specifically, the first charge of error of Andrews Investment Company, hereinafter sometimes referred to as appellant, is that “The evidence failed to establish that this defendant owed any duty to the decedent (because) (1) This defendant had no control or right of control over the bridge involved; and (2) Decedent’s rights against this defendant are only coextensive with that of his employer.”

On this contention involving sub-missibility, it is our duty to review the pertinent evidence in the light most favorable to plaintiffs and to give them the benefit of every inference reasonably deducible therefrom. This we proceed to do.

Andrews Investment Company in 1959 was the owner of a farm located just east of Highway 71 in Platte County, Missouri. A private road entered the farm from the highway, through a gate, on past a farm house and dairy barn, and about a block farther on crossed a low water bridge running west to east over Owl Creek to where there were located fee fishing lakes and cottages, one of which was occupied by the Johnsons and decedent. This road was the only practical way from Highway 71 to the Johnson Cottage.

Appellant had owned and farmed the land for several years prior to the Johnsons’ possession of it. During that earlier time appellant had caused to be erected and had used two other bridges over Owl Creek but because of damage from occasional flooding of the creek had to replace them. Its president, Mr. Andrews, stated, “That type of soil down there just washes and erodes down and gets wider all the time and we just couldn’t keep a bridge in there.” Andrews gave his ideas to the builder as to how the third bridge should be built and it was built according to his suggestions including the number of tubes to be used, how large they should be, their location, and the packing of dirt and concrete over them. He told the contractor just what was wanted and the contractor did the work accordingly. Andrews knew that trucks and other heavily loaded vehicles would be using this new bridge.

The new bridge consisted of two large culvert pipes covered by earth fill with four to eight inches of concrete over it so as to form a bridge about 35 feet long and 12 or 14 feet wide. It was a low water bridge designed to permit the water to flow through the culvert pipes under it at low water stages, and also to flow over it in high water stages. The surface of the bridge was about five to eight feet above the bottom of the creek. Other than problems caused by washout or erosion is was an adequate bridge for farm use. It appeared to be solid and without defects when the Johnsons moved to the farm. It was used extensively by Mr. Johnson and decedent in order to move farm equipment from one side of the creek to the other as was often necessary in the farming operation. It was also used extensively by members of the public in getting to the fishing lakes operated by the Johnsons on the farm and by tradesmen making deliveries to the farm. The following picture of this bridge was taken shortly after the accident in question.

The Johnsons had lived near the farm and knew appellant desired to sell it. They had little money. Nonetheless a deal was arranged. On July 29, 1959, they executed a written “sale” contract with appellant. This contract in ultimate effect can be loosely termed to be a rental arrangement with an option to purchase. The appellant agreed to sell and the Johnsons agreed to purchase. The stipulated purchase price was $60,000. The Johnsons had until February, 1962, to exercise the option by giving notes payable ten years from February 13, 1962, secured by a purchase money trust deed on the premises. For the privilege of use and occupancy prior to February, 1962, (option termination date) the Johnsons were to pay 5% interest on $60,000 at the rate of $250 per month, an additional monthly cash payment of $121.12 commencing March 15, 1960, as the estimated sum required to pay taxes and insurance on the farm, and, if not sufficient therefor, were to pay whatever additional was required for such taxes and insurance; any excess to be returned to them.

One clause of the contract is of special interest. It (Clause 10) provided, “ * * * that the purchasers have the option, right and privilege of cancelling and nullifying this contract on February 15, 1962, upon giving ninety days’ written notice to the seller. * * * In consideration of such option and privilege and in the event of such cancellation of this contract by the purchasers at said time, they agree and promise to at that time purchase from the seller the farm machinery and equipment herein-before mentioned and described, and pay the seller Two Thousand Dollars ($2000.00) in cash for said property (machinery).”

The above mentioned deed and deed of trust were to be executed by the parties and put into escrow with the Bartlett Mortgage Company to be recorded if the contract was not cancelled on or before February 15,1962, and they were executed.

In September, 1959, Mr. Johnson plowed the farm. He and his wife moved onto it on January 10, 1960. Mr. Johnson had known Butch (decedent) from March, 1954, and Butch had worked for him off and on since 1956. In April, 1960, Butch went to work for the Johnsons as a regular farm hand for $80.00 per month, plus room and board, and was so employed at the time of his death on July 11, 1960. Butch was then 18 years and 8 months old, and would have graduated from high school the following year.

In the latter part of June, 1960, there were some heavy rains, and considerable water passed over the low water bridge. Mr. Johnson noticed what appeared to be the commencement of a washout on the west side of the bridge, a hole several feet in diameter. He asked Butch to haul a load of rock to fill it in. Later, at lunch Butch told him the hole was so big he could stand with his feet in the bottom of the creek and barely reach the top. Because Mr. Johnson had thought the bridge was solid concrete he didn’t understand Butch’s report, and that very noon went down to inspect the bridge. He observed the “washout described. That night there was more rain and again Mr. Johnson inspected the bridge, noticing that for the first time the concrete had a small crack across it parallel to the west bank near the west end, and that there was a settling of a quarter to a half inch at the outside of that crack. He or Mrs. Johnson then telephoned Mr. Andrews, President of the Andrews Investment Company and reported the situation of the washout and damaged bridge to him. Mr. Andrews came there that same day to inspect the bridge. Before his arrival Mrs. Johnson made a sign reading, “No trucks allowed on crossing, Pepsi Cola and 7 Up honk horn”. Mr. Johnson placed this sign a block ahead of the bridge so that the sign faced Highway 71. Mr. Johnson tried to stop all “heavy traffic” at the gate. Bread trucks and Coca Cola trucks would stop at the gate and he or his wife would meet them there. He (Johnson) stated he realized there was some degree of danger because he put this sign there about the trucks.

When Mr. Andrews arrived to inspect the bridge he observed the crack across it. It ■was large enough that he could stick his ■finger into the open part of it. He noticed 'the bridge had settled some. He observed the tubes had settled some. He crawled in under the bridge, “crawled through the tube and I looked it over carefully, I will tell you that.” He saw that the dirt underneath the tubes had washed out so that the water flowed under and around the tubes instead of through them. He then had a discussion with Mr. Johnson as to what to do about it. At that time he was undecided whether to repair it by leaving the tubes, tear out some cement and fill back in with dirt and cover that again with cement or to fix it some way without the use of tubes. He realized that the bridge in the condition he observed was dangerous. Apparently the discussion also included temporary repairs, Mr. Andrews wanting to discuss the matter of more permanent repair with a friend Mr. Albert Bartlett. Mr. Andrews suggested to Mr. Johnson that meanwhile if they were going to use the bridge “to lay those’planks (from the formerly torn down wooden bridge) down there and then cross on the plank and use that plank for support.” He cautioned Johnson that “if he crossed it at all to put those planks there. I thought possibly if he would put those planks there he could maybe drive across it some.” “Q. And as Mr. Johnson said this morning, did you suggest that he get some of that bridge planking and take it down there and make a temporary brace across that cracked concrete? A. Yes, just merely going across on the plank, just ride the plank across.” Mr. Johnson and Mr. Andrews “agreed that these planks should be put across there because there was again some degree of danger.”

Then Mr. Andrews took a plank and he and Mr. Johnson dragged it into place across the crack. “ * * * and then (later) he '(Johnson) got some more.” (Mr. Johnson testified that the second time Mr. Andrews was at the bridge he and Andrews dropped one plank across.)

Later, Mr. Andrews returned to St. Joseph and “talked to A1 (Albert Bartlett) and the boys about it and we knew something had to be done, and then I took Albert with me. I don’t think Johnson went that date. I think Al and I went alone.” On his second visit he observed Mrs. Johnson cross the bridge with a boat on a_ trailer. “And then about the third time (they visited the bridge) Thomas (city engineer) went with us.” Mr. Thomas recommended the Clark Construction Company to rebuild the bridge. That company at an undisclosed later time was employed by appellant to put in a new bridge. It commenced building the new bridge after the accident but before the Johnsons cancelled the contract and moved off the farm on December IS, 1960.

Mr. Andrews undertook to explain why appellant undertook to repair the bridge— “ * * * we had to protect our investment * * * when you sell a farm on a contract like that, naturally you have to stay in there. That was our problem.” Any time before February, 1962, “He (Johnson) could quit. Q. Throw in the sponge? A. Sure he could. Q. And the property was yours, wasn’t it? A. Right. Right.”

From the time Mr. Johnson first observed the crack and washing out he, his wife, decedent and customers and tradesmen continued to use the bridge. Mr. Johnson and decedent both continued to operate Mr. Johnson’s farm equipment across it, including his ton and a half truck, his two tractors and his passenger automobile. Mr. Johnson, in accordance with Mr. Andrews’ conversation, had Butch hook some planks on the. tractor one night and he and Butch dragged them to the bridge. Mr. Johnson placed them over the crack.

On the evening of the accident Mr. Johnson drove his International tractor across the bridge up to the milking barn. Later Butch, who had just returned from a Sunday visit with his family joined him there. Previously, Mr. Johnson had ordered a ton of carp fish to restock some of the fishing lakes. Shortly after Butch’s arrival they saw the fish truck on its way just past the gate a block from the bridge. They watched its lights as it crossed the bridge apparently without a bobble. Mr. Johnson knew it was a very heavy fish truck that would have some carp in it, a ton of which was going to (him). Mr. Johnson said, ‘“I imagine one of us ought to go down and help to unload the fish’, and he (Butch) said, T will go.’ ” Decedent then got on the tractor and started toward the house. That was the last Mr. Johnson saw of decedent. It was customary for both decedent and him to use that tractor to go back and forth from the barn to the house, across the bridge.

About twenty minutes later a neighbor notified him of the accident. Butch was down in the hole of the bridge which had collapsed, and was still on the tractor. He was dead. His death was occasioned by his head being caused to strike and be pinned against the steering wheel of the tractor.

In his brief appellant’s attorney acknowledges that the amended petition on which the case was tried charged that appellant has joint control of the bridge and its repair with the Johnsons and that “we (appellant) negligently performed the repairs to the bridge.” — as did Mr. Johnson also, and that the death came about as a direct result of the joint and concurring negligence of all the defendants.

Appellant also states in its brief, “The relationship here between this defendant and the Johnsons is either that of vendor and vendee or landlord and tenant. It is immaterial which it is here as the duties and obligations of the parties here are the same whether it is a sale or a lease.” Appellant then cites and relies on numerous cases concerning the lack of duty on the part of a landlord, who is totally out of possession and control of the premises, to a tenant and the tenants’ employees, invitees and guests, to make ordinary repairs to the premises and his freedom from liability for personal injuries incurred because they were not made. Typical is Gray v. Pearline, 328 Mo. 1192, 43 S.W.2d 802, 804, stating, “In the absence of an agreement by the landlord to. put and keep the premises in repair, no duty is imposed upon him, or implied, to make-ordinary repairs to demised premises. * * We thoroughly agree with these-cases. However, they do not rule the case-before us, for the facts and principle of law involved are entirely different.

We believe the applicable rule to be that while a landlord, in the absence of a contract to do so, is under no obligation to his tenant to make repairs on the demised premises, yet if he voluntarily does so for his own or for the common advantage of both himself and the tenant, he must use reasonable care in doing so, and is liable for any injury caused by his negligence in doing so. For authorities supporting this statement, see Bloecher v. Duerbeck’s Estate, 333 Mo. 359, 62 S.W.2d 553, 555, 90 A.L.R. 40; Finer v. Nichols, 175 Mo.App. 525, 157 S.W. 1023; Patton v. Eveker, Mo.App., 232 S.W. 762; Lasky v. Rudman, 337 Mo. 555, 85 S.W.2d 501; Kennedy v. Bressmer, Mo.App., 154 S.W.2d 401.

The reason for the above stated duty is set out in Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844, 847: “* * * if the landlord does undertake to make repairs, either voluntarily or by covenant, he must exercise reasonable care in doing so and is liable to his tenant for injuries caused by his negligence or unskillfulness in making the repairs or in leaving the premises in an unsafe condition. * * * (Reviewing Missouri cases.) * * * Chief Judge Cardozo said: ‘The landlord, though a volunteer in making the repairs, is liable, none the less, for negligence in making them. “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all”. * * * A landlord in these circumstances is not charged with liability on the basis of the nonperformance of a voluntary promise. He is charged with liability, because, having chosen to perform, he has thereby become subject to a duty in respect of the manner of performance. * * There is a suggestion, * * * that to make the landlord liable, the negligent repairs must have aggravated the defect, so that what was dangerous before became more dangerous than ever. We cannot yield assent to this restriction of the field of duty.’ ”

And in, 52 C.J.S. Landlord and Tenant, § 417c (2), page 43, it is expressed “The general rule is that, where the landlord is under no obligation to make repairs, but undertakes to make them gratuitously, he is under a duty to use reasonable care and will be liable for his negligence in making such repairs. The basis of the landlord’s liability when he gratuitously but negligently makes repairs is determined by the law of torts and not by the law of contracts; liability is predicated on the common-law doctrine that a volunteer may not do what he undertakes to do in a negligent manner or in any manner from which negligence might reasonably be inferred. The landlord voluntarily undertaking to repair impliedly assures the tenant that the repairs are properly made and that the previous defective condition has been remedied. In order to render the landlord liable it is not necessary that he shall have made the physical condition of the premises more dangerous.”

Plaintiffs’ verdict directing instruction submitted in the conjunctive the issues both (a) of the exercise of joint control of the bridge by Andrews Investment Company and Johnson and (b) of the assumption of the obligation by Andrews Investment Company to repair it. The jury found for plaintiffs under this submission and the trial court in a well reasoned memorandum opinion agreed with the jury’s findings. We find that the evidence was sufficient to support a submission of both of these issues to the jury, and we find no merit in appéllanfs contentions to the contrary.

We briefly summarize some of the evidence from which the jury could have found joint control and an undertaking to make the repairs. On the issue of joint control: (1) Record title was in appellant;- (2) The continuation by appellant of an insurance policy in which appellant designated itself as owner of the farm; (3) Mr. Andrews’ statement that his company had to stay in there to protect its property; (4) The actions and statements of Mr. Andrews as to the history of the bridge; (5) His immediate response to the telephone call advising of the washout and cracking of the bridge; (6) His three visits to inspect it and to arrange its ultimate repair or replacement; (7) Appellant’s replacement of the bridge at a time the Johnsons still occupied the premises under the written agreement; and (8) Andrews’ statement as to how to temporarily repair it and his directions to Johnson and his placing a plank over the crack. All these things together and especially Andrews recognizing the reality of the situation occasioned by the contract, are sufficient for the jury reasonably to infer and find as a fact that appellant actually exercised at least a joint control and joint right of control of the bridge and its maintenance and repair and participated in and helped direct its temporary repair.

What we have already said disposes of appellant’s contention that there was no substantial evidence to support plaintiffs’ verdict directing instruction and that it incorrectly stated the law.

We also find no merit in appellant’s contention that the evidence did not make a submissible issue of any negligence on the part of defendant which was the proximate cause of the death of decedent. Mr. Andrews acknowledged the washed out and cracked bridge presented a dangerous situation to a user. There was evidence from which the jury could find appellant negligent in participating in and directing an inadequate temporary repair of the bridge and that decedent’s death was the result of such negligence. We rule that on the record before us the question of proximate cause was properly 0'ie for the jury.

Next presented is the contention that decedent voluntarily incurred the risk of using the bridge on the occasion of the accident and was guilty of contributory negligence as a matter of law. The trial court submitted to the jury appellant’s instruction on this subject and the jury found against appellant.

It is the accepted rule that the determination of whether a person is guilty of contributory negligence ordinarily is for the jury as within its function unless it can be said from all the evidence and the reasonable inferences therefrom viewed in the light most favorable to that person that the only reasonable conclusion is that he was negligent and that his negligence was a proximate cause of the injury,

Here, we have an eighteen year old boy who apparently was relying on the temporary repair made to the bridge. He had observed his employer use the damaged bridge by driving a 1 ½ ton truck, tractors and a passenger car over it. He, himself, had driven at least some of this equipment over it without mishap. His employer less than two hours before the accident had driven the very tractor in question over it. He had observed the heavy fish truck cross it just moments before the accident. The expressed attitude of both his employer and Mr. Andrews seemed compatible with further use of the bridge by decedent. True, decedent knew of the washout and the crack across the bridge, and even to some extent participated in the temporary repair work by hauling boards to the bridge to be placed over the crack. Yet, viewing the evidence as a whole we conclude reasonable minds could differ on the question of contributory negligence and that the issue was properly for the jury. Language used in Bartlett v. Taylor, supra, 174 S.W.2d loc. cit. 851, (concerning use of a door rather than a bridge) aptly expresses our feeling, “ * * * but considering that he had some right to rely on the assurance of safety implied in the repairs we cannot say that he had such comprehension of the risk of injury involved in using the door with its defective repairing that reasonable minds could draw but the one conclusion that he fully appreciated the danger and proceeded in utter disregard of the consequences. The conclusion and inference from the evidence is also permissible that he did not appreciate the peril to which he was subjecting himself, in using the door and, therefore, whether he was contributorily negligent was a matter to be resolved by the jury.”

Appellant complains that the verdict and judgment is inconsistent, contradictory and self-destructive because it exonerates the Johnsons yet is against appellant. Appellant argues the evidence concerning fault or negligence is much stronger against Mr. Johnson than appellant and hence the verdict and judgment is the product of misunderstanding, bias or prejudice. The trial court ruled against this contention.

The answer to appellant’s complaint is that each defendant was the subject of a different submission to the jury. Appellant was charged with acts of direct negligence in making repairs while the Johnsons were charged with negligent failure to provide a. reasonably safe place for decedent to work. Plaintiffs chose to submit two different theories of negligence in separate verdict directing instructions. It is not necessarily factually or legally inconsistent that the jury exonerated one and found against the other. See, Ciardullo v. Terminal Railroad Ass’n. of St. Louis, Mo.Sup., 289 S.W.2d 96, 61 A.L.R.2d 516; Page v. Hamilton, Mo.Sup., 329 S.W.2d 758. Each defendant was sought to be held for his own negligence, and not for the negligence' of some one else as in certain master and servant cases where the master is sought to be held solely for acts of his servant under a theory of derivative liability. The fact that the John-sons were more successful in persuading the jury to exonerate them, under the circumstances presented is of no legal aid to appellant. See, Clark v. Simmons, Mo.Sup., 351 S.W.2d 1, 6. And the plaintiffs are not complaining that there is any inconsistency of such a nature as to destroy their verdict against appellant.

During the trial plaintiffs’ counsel offered in evidence on the issue of Andrews Investment Company’s ownership and joint control of the farm and bridge a current liability insurance policy in which the investment company stated it was the owner of this and two other farms. Before ruling on the offer the trial judge inquired of appellant whether it still denied both ownership and joint control of the premises, and ■upon being assured that it did, overruled the •objection and received the policy in evidence. Plaintiffs’ counsel was then permitted to read to the jury those portions >of the policy containing the ownership statement. It was suggested to appellant’s counsel by the court that if he desired to have the court instruct the jury limiting the evidence to the issues of ownership and joint control the court would do so. Appellant’s counsel declared he did not want a limiting instruction, and now assigns the admission of this evidence as error.

Notwithstanding the general rule against the introduction of evidence declaring or suggesting that the defendant is protected by liability insurance, such disclosure or suggestion will not be avoided at the cost of supressing evidence material to the establishment of a cause of action and the liability of the defendant. See, Annotation, Showing As To Liability Insurance, 4 A.L.R.2d 761, 775, 777; 20 Am.Jur., Evidence, Sec. 263, page 252, and Cumulative Supp., Sec. 390, page 68. Under such circumstances the rule is applied that where evidence has probative value on a material, controverted issue and is otherwise admissible thereon but would be improper for ■other purposes or other issues in the case, it should be received. The opponent then has the right to an instruction if he should request it limiting extent to which and the purpose for which the jury may consider such evidence. Turner v. Caldwell, Mo.App., 349 S.W.2d 493(4-5); Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4, 7; Martin v. Mercantile Trust Co., Mo.Sup., 293 S.W.2d 319(14).

As stated by Judge Conkling in State ex rel. Cummings v. Witthaus, En Banc, 358 Mo. 1088, 219 S.W.2d 383, 389, 8 A.L.R.2d 1124, “In determining whether certain evidence is material, relevant and admissible the courts apply the simple test of whether it tends to prove an issue. If the particular evidence does tend to prove an issue formed by the pleadings, that evidence cannot be excluded merely because it may also tend to show that some one carried liability insurance on the particular motor vehicle, or any motor vehicle.”

This court in Paepke v. Stadelman, 222 Mo.App. 346, 300 S.W. 845, held, where defendant’s ownership of the car which struck plaintiff was denied and was a part of plaintiff’s case, any evidence tending to show such ownership including indemnity insurance on it is admissible. In the light of this well established authority, we find no merit in appellant’s contention.

Nor did the trial court commit reversible error in giving plaintiffs Instruction No. V on the measure of damages along with defendant Johnson’s cautionary instruction thereon. Instruction No. V instructed the jury that if they found for plaintiffs then in assessing the damages they will award such sum of money, if any, as will fairly and reasonably compensate the plaintiffs for their pecuniary loss directly resulting to them from the death of their son. The instruction is not erroneous and in substance has been approved on prior occasions. See, Gain v. Dorward, Mo.App., 357 S.W.2d 193, 194; Morton v. Southwestern Telegraph & Telephone Co., 280 Mo. 360, 217 S.W. 831, 836.

Codefendants Johnson sought and obtained a cautionary Instruction No. 10 to the effect the damage award could not in any event be greater than the sum decedent was reasonably capable of earning from the date of his death until the date he would have become 21 years old, plus funeral expenses reasonably incurred by plaintiffs by reason of the death of their son. Appellant charges Instructions V and 10 are inconsistent, confusing, misleading and erroneous. We do not think so. The real burden of appellant’s complaint is that it thought the damage instructions too general and desired one specifically directing the jury that in assessing the damages the jury should deduct the expense of the support and maintenance of the child during the time in question. Damage instruction No. V was a correct one even though general, and if appellant wished an additional, substitute or cautionary instruction on this point it should have requested it.

Prior to the trial depositions of appellant’s president, Mr. Andrews, were taken. At the trial when plaintiffs’ counsel stated he wished to read in evidence page 3, line IS through 19, of Mr. Andrews’ deposition, appellant objected “to the reading of those questions for the reason they are not an admission against interest.” To some other questions he continued to say, “Same objection”. Later he objected that “the questions and answers asked on (page 32 of the deposition) are not competent testimony to prove or disprove any of the issues in the case.” At a later point he stated, “I don’t see where a lot of these questions qualify as admissions against interest.” As to questions on pages 32 to 34 of the deposition he objected, “too remote” and “each answer does not qualify as an admission against interest.” As to a question on page 42, line 1, he objected that it was “no admission against interest— too remote from the issues here involved, and is not binding on this defendant. Some of it is hearsay.”

On this appeal appellant charges the trial court with reversible error in reading portions of the depositions of Mr. Andrews as admissions against interest of appellant “as he was not acting in the scope of his authority and line of his duty in giving his deposition at the request of defendants Johnson.”

Plaintiffs contend appellant’s present contention of error is substantially different from- any objection made by appellant at the trial to the evidence and that therefore it is not properly before this court for appellate review; that the objections made to the trial court failed to advise it that the basis of appellant’s objection to the reading of the mentioned questions and answers was that Mr. Andrews was not authorized to make admissions in the deposition and was not acting within the scope of his employment in giving the deposition.

However, we need not pass on either the question of the adequacy of the objections to preserve the present contention of appellant or the question of whether the statements of Mr. Andrews read from his deposition were properly admissible in evidence. For there are additional and sound reasons why appellant’s appellate contention cannot be deemed to be meritorious. The statements made by Mr. Andrews in his deposition were but cumulative to and explanatory of the admissions of appellant Andrews Investment Company which were read in evidence from the answers to interrogatories, which appellant filed in court under the-signature of Mr. Andrews. In the maim they were duplicated by testimony given by Mr. Johnson, and essentially undisputed. In fact, appellant’s counsel in his opening-statement to the jury in effect conceded practically all of them.

Thus even if appellant’s present contention was reviewable appellant has failed to demonstrate that any prejudice could or did result from the reading in evidence of any particular portion of the deposition.

The testimony as to the replacement of the bridge by appellant after the casualty, but before the Johnsons terminated the lease, was not erroneously received, for it tended to show appellant had retained and exercised some control of the premises. As stated in Brule v. Mayflower Apartments Co., Mo.App., 113 S.W.2d 1058, 1060: “Different situations arise where evidence of the defendant’s subsequent repair or improvement of the premises, though incompetent upon the issue of his negligence, is nevertheless admissible in proof of some other fact or circumstance in the case, as, for instance, where the evidence is admitted for the purpose of showing that the thing or place which caused the plaintiff’s injury was under the defendant’s management and control.” And see, Wright v. Hines, Mo.App., 235 S.W. 831, 832; Benton v. City of St. Louis, 217 Mo. 687, 118 S.W. 418, 424; Annotation, 64 A.L.R.2d 1296.

Appellant charges that the verdict was the result of bias and prejudice induced by misconduct of both the counsel for co-defendants and for plaintiffs. Again appellant’s counsel has generalized and has failed to call our attention to any particular ruling of the trial court that it deems to be prejudicially erroneous. After referring to the question of the use in evidence of a portion of the insurance policy, which subject we have previously discussed, appellant’s counsel alludes to audible and frequent sobbing of decedent’s mother which allusions are not supported by the record. Nor with reference to the presence of decedent’s mother at the trial can we find where appellant ever requested the trial court to take any action which the court failed to take. We- have examined the transcript, which fortunately includes closing argument of counsel, and find no merit in this contention of reversible error. It would needlessly prolong this opinion and serve no useful purpose to set out further the conduct to which appellant has referred.

We next discuss another contention of error with reference to plaintiffs’ Instruction VI- on the subject of contributory negligence. It provided that “ * * * if you (the jury) find that by reason of his age the deceased Nuckols’ boy did not have the capacity of an adult, and that he exercised such care that ought reasonably to be expected of one of his age and capacity, then he was not guilty of contributory negligence. * * *” Appellant contends an eighteen year six months old boy is not entitled to be judged by any standard of care other than that of an adult. In the cited case of Coleman v. Himmelberger-Harrison Land & Lumber Co., 105 Mo.App. 254, 79 S.W. 981, the court deemed an instruction erroneous, saying, “It is not correct to say that the law does not exact of one who is a minor that care and caution that it demands of an adult.- * * * The care a minor is bound to use is that care that persons of his age, capacity, and intelligence are capable of using in like circumstances. (citations) There is no arbitrary rule fixing the age when a youth may be declared wholly capable of understanding and avoiding danger. Barney v. [Hannibal & St. J.] Railway [Co.], 126 Mo. 372, 28 S.W. 1069, 26 L.R.A. 847. Yet it seems to us that a youth 18 years of age, of ordinary intelligence and experience, should show some incapacity, in addition to his minority, to warrant a court in instructing, as a matter of law, that he- was not required to use the same care as an adult.”

This portion of the instruction was “lifted” from Raymond, Missouri Instructions, Sec. 8424, where it was taken from Hall v. Missouri Pac. Ry. Co., 219 Mo. 553, 118 S.W. 56, 62. The instruction does not' declare that decedent was not required to use the same care as an adult. Rather, it declared that only if the jury found from the evidence that decedent did not have the capacity of an adult, then, in such event, he was to be measured by “such care that ought reasonably to be expected of one his age and capacity.” The record is replete with testimony concerning decedent’s ability, capacity, experience and education. We do not deem the instruction to be in conflict with the standard seemingly required in the Coleman case, supra, and the giving of the instruction so worded did not prejudice any right of appellant.

There is an earlier portion of the instruction that is subject to criticism. It provided that “the law presumes that said deceased was in the exercise of ordinary care, in the absence of evidence to the contrary.” This phrase, unhappily, was also “lifted” from Raymond, Missouri Instructions, Sec. 3228. For an understanding of plaintiffs’ position we quote their brief, page 40:

“Author Raymond cites as support for this instruction which is advanced as a model to the lawyers, litigants and courts of Missouri, the case of Hegberg v. St. Louis & S. F. R. Co., 164 Mo.App. 514, 147 S.W. 192, in which that language was used in an instruction which was quoted and approved by the court on appeal * * * the Shepardizing of the Hegberg case, supra, would and does not reveal that the case has ever been overruled on the use of this instruction, nor does the reader even find the criticism of such instructions which the advocates in this case advance as a reason for such prejudice as to require a reversal of this judgment. Thus the model instruction in Raymond and the Hegberg case apparently stand in the law of Missouri as a submerged iceberg — a trap for the unwary who having followed the instruction to the letter as approved by the court in Missouri, then find after verdict that they are met with the advocates’ claim that such instruction is so horribly prejudicial as to require a reversal of the result. The fact that judges do not agree in every instance that the use of the presumption language is somehow magically prejudicial is seen from at least two recent Supreme Court cases: Curtis v. Atchison, T. & S. F. Ry. Co., Mo.Sup. [363 Mo. 779], 253 S.W.2d 789, 794(6) and Younkman v. Missouri Pacific Railroad Company, Mo.Sup., 304 S.W.2d 19, 20.”

Plaintiffs’ counsel now apparently realizes that it is improper in a civil case to instruct as to any presumption where there is evidence on the subject, and it should not be done. See Vinson v. East Texas Motor Freight Lines, Mo.Sup., 280 S.W.2d 124, 131; McKenna v. Lynch, 289 Mo. 16, 233 S.W. 175; Lebow v. Missouri Public Service Co., Mo.Sup., 270 S.W.2d 713; Neve v. Reliance Insurance Company of Philadelphia, Mo.App., 357 S.W.2d 247, 250(8).

The effect of instructing on a presumption where there is evidence on the subject is stated to be “sometimes useless, sometimes prejudicial, and always illogical.” McKenna v. Lynch, supra, 233 S.W. loc. cit. 176. Such an instruction is not always prejudicially erroneous so as to necessitate a reversal. Each case must be carefully examined to determine its effect in that particular case

Of relevance to our consideration as to whether the instruction as used in this case is prejudicially erroneous is the rule that instructions are to be read in combination and as an entirety and courts must look at the whole charge to ascertain if a jury, composed of ordinarily intelligent laymen, reading all of the instructions together would or would not be misled. Machens v. Machens, Mo.Sup., 263 S.W.2d 724, 732(7-8). Plaintiffs’ verdict directing instruction (on which plaintiffs assumed the burden of proof) required a finding “from the evidence * * * that plaintiffs’ son was at all times in the exercise of ordinary care for his own safety” in order for plaintiffs to recover. Instruction No. B. given at the request of appellant provided: “The court instructs the jury that it was William Roland Nuckols duty to exercise ordinary care and caution for his own safety at all the times mentioned in the evidence and that if you find and believe from the evidence that before attempting to cross the bridge, William Roland Nuckols knew, or in the exercise of ordinary care should have known, that the condition of said bridge was such that it was not reasonably safe for use at the time and under the circumstances he attempted to cross it on the tractor mentioned in the evidence, if you so find; and that if you further find that William Roland Nuckols was negligent and careless in attempting to cross the bridge on the tractor under the circumstances then and there existing; and that if you further find that such carelessness and negligence on the part of William Roland Nuckols directly caused or contributed to cause his death, if so, then your verdict must be for the defendant Andrews Investment Company and against the plaintiffs in this case. * * ”

Instruction No. 2 given at the request of the Johnsons to the jury read in part:

“The Court instructs the jury that under the law of Missouri it was the duty of Roland Nuckols to exercise ordinary care for his own safety at the time and place mentioned in evidence.

“In this connection, if you find from the evidence either that on the evening of July 11, 1960, Roland Nuckols knew or that in the exercise of ordinary care he could have known that the bridge or crossing mentioned in evidence was not reasonably safe for travel by one riding the tractor. * * * ” ⅛6 jury should find for defendant.

Additionally, challenged Instruction No. VI stated in effect that the mentioned presumption regarding ordinary care applied only if there was no evidence of lack of ordinary care. There was considerable evidence both pro and con on the issue of lack of ordinary care (contributory negligence). Hence, a literal reading of the instruction and a literal application of it to the evidence would result in the jury not applying any presumption for there was not an “absence of evidence to the contrary”.

We have reached the conclusion that while the instruction is not properly drawn, the jury was not misled. We are convinced no prejudicial error resulted. Cf. Elmore v. Kansas City, Mo.App., 333 S.W.2d 795, 797.

It is regrettable that plaintiffs’ attorney offered the instruction in its present form, and that defendants made only general objections to it at the time it was offered. The transcript shows that the first objection of the nature presented here came in appellant’s motion for new trial when it was too late for the trial court to take any corrective action other than the drastic one of granting a new trial which was not warranted. And since we cannot say as a matter of law that error prejudicial to appellant resulted in this case from the giving of the instruction the point is ruled against appellant.

We reach appellant’s final contention; namely, that the $15,000 verdict was excessive under the evidence. The method of ascertaining proper damages for the wrongful death of a minor admittedly lacks-mathematical nicety under our present law. It has been criticized by some who prefer the present view of the courts of the States of Michigan and Minnesota. See, Wycko v. Gnodtke, 361 Mich. 131, 105 N.W.2d 118; and Fussner v. Andert, Minn., 113 N.W.2d 355. Nonetheless our Supreme Court has. steadfastly approved the standard set out in Instruction No. V, measuring the damage by the pecuniary loss to the parents resulting, from the wrongful death.

The basis of these decisions is our state-statute in which our legislature provided' that in wrongful death actions “ * * * the jury may give * * * such damages. * * * as the jury may deem fair and' just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death, and having regard for the mitigating or aggravating circumstances attending the wrongful act, neglect or default resulting in such death.” Section 537.090 RSMo 1959, V.A.M.S.

Of this statute our Supreme Court in Hertz v. McDowell, 358 Mo. 383, 214 S.W. 2d 546, 550 said, “The legislative intent * * * is to give the jury a broad discretion in computing damages for wrongful death, within the limit prescribed, based upon the pecuniary loss of every kind and character which, under all the circumstances of the particular case, would necessarily result from the death, to those entitled to recover (and the jury, in a proper case, may also dimmish or increase the amount because of circumstances which they may find in mitigation or aggravation of the wrongful act, neglect, or default which caused the death)”, citing Steger v. Meehan, Mo.Sup., 63 S.W.2d 109; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115.

The funeral bill was approximately $960. Butch was earning $80 a month and room and board during the summer period at the time of his death. Additionally, Butch had some business-farm activity and interests of his own. He owned several cows and some heifers which he kept on his father’s farm. His father farmed between 250 and 300 acres and Butch contributed to the family ■operation and aided his father in farming that farm land. Butch was contributing to the cattle and livestock his father had, and also working around the farm when he wasn’t working for someone else. His father testified that as soon as Butch got ■out of school the following spring “he was going in 50-50 with me”. Butch was going to be a partner with his father in the farm operation. Butch spent his money “on livestock and things getting him lined out so he ■could be in partnership”. His father had to employ other help to fill in for Butch when he was employed elsewhere and to date that totaled $400. Neighbors employed Butch from time to time when he was available for extra work and as one stated “he was always busy and I hired him when I could”. It was admitted by appellant at the trial that Butch was a “good hard-working, thrifty boy”.

Based on this evidence and keeping in mind that it was the expressed intent of the legislature that the jury and not the trial or appellate court should fix the amount of the award, we are unwilling to disturb it. We do not believe that on this record we can say as a matter of law that the verdict is excessive. Cf. Brewer v. Rowe, 363 Mo. 592, 252 S.W.2d 372, 377; Shepard v. Harris, Mo.Sup., 329 S.W.2d 1.

After having considered all the matters presented, and having found no prejudicial error, we affirmed the judgment.

All concur.

      . On this subject, see Loyal’s Auto Exchange v. Munch, 153 Neb. 628, 45 N.W. 2d 913, 921(12); Brown v. Kroger Company, Mo.App., 358 S.W.2d 429, 434; Brown v. Kroger Company, Mo.Sup., 344 S.W.2d 80(17); Kaufman v. Baden Ice Cream Mfgs., Inc., Mo.App., 7 S.W.2d 298(3-4); Bowyer v. Te-Co., Inc., Mo. Sup., 310 S.W.2d 892; and especially, Meyer v. Dubinsky Realty Co., Mo.App., 133 S.W.2d 1106(10); Kolb v. Howard Corp., Mo.App., 219 S.W.2d 856(3); Winegar v. Chicago B. & Q. R. Co., Mo. App., 163 S.W.2d 357(11-14).


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    E. E. ESTES, d/b/a Saveway Petroleum Company, Plaintiff-Appellant, v. E. C. FRANCIS, d/b/a Francis Service Station, Defendant-Respondent.
    No. 8086.
    Springfield Court of Appeals. Missouri.
    Jan. 24, 1963.

      Powell & Jones, John Wm. Ringer, Dexter, for plaintiff-appellant
    No appearance for defendant-respondent.
   STONE, Judge.

In this suit on account, plaintiff Estes seeks to recover from defendant Francis an alleged balance of $918.26 for gasoline, motor oil, antifreeze, and miscellaneous items sold and delivered to defendant at his service station in Fisk, Missouri, during the period of about thirteen months from February 1957 to March 1958. From the judgment entered upon a jury verdict for defendant, plaintiff appeals.

The initial complaint upon appeal is that the trial court erred in overruling plaintiff’s pretrial motion in writing for a compulsory reference of the cause under Rule 68.02(1) [Section 515.020(1)], which provides, in part, that “(w)here the parties do not so consent, the court- may, upon the application of either, or of its own motion, direct a reference * * * (w)here the trial of an issue of fact shall require the examination of a long account on either side * * Since instant plaintiff’s motion for compulsory reference was determinable upon the pleadings then before the court leavened by the assumption that the testimony on the issues made by the pleadings would take the widest permissible latitude, we turn first to the pleadings.

In the first paragraph of his petition, plaintiff identified himself as “engaged in the gas and oil business, including the distribution of such products, at Dexter, Missouri.” In the second paragraph, plaintiff referred to eighteen exhibits attached to and made a part of the petition (the first exhibit being a statement of defendant’s account with plaintiff and the other seventeen being copies of itemized invoices), averred that the “petroleum products” listed in the invoices had been sold and delivered to defendant at his special instance and request and at the prices shown on the invoices, and gave the total amount of the debits as $8,767.99. The third paragraph of the petition acknowledged defendant’s payments on account aggregating $7,849.73 and alleged “a balance owing of $918.26.” In the fourth paragraph, plaintiff asserted that the prices charged for the listed items were reasonable and proper, that defendant had promised and agreed to pay the same, but that he had failed and refused to pay the balance of $918.26 although demand therefor had been made. The prayer was for judgment in the principal sum of $918.26 and interest thereon. Defendant’s answer was a general denial coupled with an affirmative plea that defendant had “duly paid to plaintiff any sums of money heretofore due and owing by defendant to plaintiff.”

In his motion for compulsory reference, plaintiff reiterated that his suit was “for various and sundry petroleum products” sold and delivered to defendant during the period from February 1957 to March 1958 as more fully appeared from the petition, stated that “issue was joined on defendant’s answer, setting up payment in full of said account,” and then asserted that “the trial of the aforesaid issue (of payment) will require the examination of a long account on the side of both parties, consisting of at least 47 items of charges and credits of the aforesaid petroleum products of various dates.” After oral argument by counsel, the motion for reference was denied.

It is true that, as plaintiff here points out, compulsory reference of an action at law, otherwise triable by jury, does not deprive a litigant of his constitutional right to trial by jury [Art. I, Sec. 22(a), Const, of Missouri], if the reference is authorized by Rule 68.02. Durwood v. Dubinsky, Mo., 291 S.W.2d 909, 915(6), and cases there cited. And we think it likewise true that Rule 68.02 (in essentially the same language as Section 515.020, which has been brought down from Section 2138, RSMo 1889, through successive decennial statutory revisions) does not commit a request for compulsory reference to the absolute, untrammeled discretion of the trial court, but rather contemplates determination of such request in the exercise of a sound judicial discretion, subject to appellate review. Wahl v. Cunningham, 332 Mo. 21, 32, 56 S.W.2d 1052, 1056(5); Buchanan v. Rechner, 333 Mo. 634, 637, 62 S.W.2d 1071, 1072(1, 2); Couser v. Thayer, Mo.App., 204 S.W. 27(1).

However, use of the permissive “may” in Rule 68.02 indicates that the trial court is invested with a substantial measure of discretion in ruling a request for compulsory reference. Home Exchange Bank of Jamesport v. Koch, 326 Mo. 369, 374, 32 S.W.2d 86, 88. And, in considering instant plaintiff’s complaint that denial of his request for compulsory reference constituted an abuse of discretion, we remain mindful of earlier judicial admonitions that, since the statutory provision for compulsory reference afforded an exception to the right of trial by jury, it should be construed strictly [Rice v. Robertson, Mo.App., 48 S.W.2d 172, 173(2)] and should not be extended by loose construction [Creve Coeur Lake Ice Co. v. Tamm, 138 Mo. 385, 393, 39 S.W. 791, 794; Reed v. Young, 248 Mo. 606, 616, 154 S.W. 766, 769], and that, since such compulsory reference encroached upon the constitutional right of trial by jury, reference should not be granted unless the situation in a given case was within the spirit as well as the letter of the statute. The same principles should be no less applicable in construction of Rule 68.02 and in consideration of a request for compulsory reference thereunder.

■ To his point that “the trial court abused its discretion in refusing to grant” the motion for reference in that the instant case “was distinctively one for a compulsory reference,” plaintiff cites nine Missouri cases. We have examined all of these and many more. In seven of plaintiff’s cases, the action of the trial court in ordering a compulsory reference was said by the reviewing court to have been proper or not reversibly erroneous. In two of plaintiff’s cases [Lasley v. Ridenour, Mo.App., 265 S.W.2d 744, 746(2); Phillips v. Todd, Mo.App., 180 S.W. 1039, 1043(9)], the appellate court suggested that reference should have been ordered. However, neither of those cases was reversed and remanded for failure to refer; and instant plaintiff’s counsel frankly confess their inability to find, and our independent research has failed to disclose, any Missouri case in which the trial court’s failure or refusal to refer has been held to have constituted reversible error. On the other hand, we find cases in which the refusal to refer was not reversibly erroneous and other cases in which the trial court was convicted of error for ordering compulsory reference.

All of this is not to suggest that denial of a motion for compulsory reference could, in no circumstances, constitute reversible error or that instant plaintiff’s complaint should be rejected as without merit simply because (as it appears) no prior case in this jurisdiction has been reversed for the trial court’s failure or refusal to order compulsory reference. But the inescapable import of the mass of cited cases is that whether a given account is “a long account” within the contemplation and meaning of Rule 68.02 [Section 515.020(1)] is not susceptible of precise determination by guide or formula, that a trial court is invested with a considerable measure of discretion in ruling a request for compulsory reference, that such request properly may be denied where there is substantial reason to doubt the legal propriety of reference, and that reversible error for refusal to refer may not be found unless the appellate court may declare confidently that such refusal constituted a clear abuse of judicial discretion on the part of the trial court.

Our inquiry in the instant case is not whether an order of compulsory reference would have been permissible or proper, but rather we are charged with determining whether, in refusing to refer, the trial court “exercised its discretion to the prejudice of the substantial rights” of plaintiff. Cf. Buchanan v. Rechner, supra, 333 Mo. loc. cit. 639, 62 S.W.2d loc. cit. 1073. Conceding that this is a question which has become close and vexing in the illuminating glare of hindsight, we nevertheless are unable to say with assurance that the trial court, in refusing reference upon the pleadings then before him, was guilty of a clear abuse of judicial discretion. Therefore, we should not reverse and remand for denial of plaintiff’s motion for compulsory reference. However, since (for another reason hereinafter noted) the judgment must be set aside and the cause remanded anyway, we think it proper to observe that, in our opinion, the course and conduct of the trial convincingly demonstrated that this is a cause which “might be better tried by a referee than a jury.” Phillips v. Todd, supra, 180 S.W. loc. cit. 1043. See also Minter v. Mid-Continent Petroleum Corp., Mo.App., 147 S.W.2d 120; George L. Cousins Contracting Co. v. Acer Realty Co., Mo.App., 110 S.W.2d 885, 889(5); Ajax Rubber Co. v. White, 216 Mo.App. 283, 264 S.W. 466; Reifschneider v. Beck, 148 Mo.App. 725, 129 S.W. 232, 234(1). Accordingly, we suggest the advisability of reference by the trial court.

The substance of plaintiff’s second point is that the evidence does not support the verdict because defendant failed to sustain his affirmative defense of payment [Rule 55.10; Section 509.090], as to which the burden of proof rested upon him. Machctinger v. Grenzebach, Mo.App., 282 S.W.2d 200, 202(4); Dorroh v. Wall, Mo.App., 297 S.W. 705(1); West Pub. Co. v. Corbett, 165 Mo.App. 7, 145 S.W. 868, 869(1). This, for the reasons (so plaintiff asserts) that defendant “could not definitely identify any of his checks * * * as having been applied on the account sued on” and that defendant “admitted owing $236.01 on the account.” Careful examination and searching analysis of the evidence incline us to the view that this point is not wholly without merit. However, the record is not such that we could “dispose finally of the case on appeal” [Rule 83.-13(c); Section 512.160(3)] ; and, since the evidence may be clarified and supplemented upon retrial, we pass plaintiff’s second point and thereby eschew the temptation to review and record the factual minutiae with which the transcript abounds.

Plaintiff’s third complaint is that the trial court erred in giving defendant’s instruction D1 because, in directing that “if you are unable to determine whether defendant does or does not owe plaintiff, then your verdict should be for the defendant,” said instruction cast upon plaintiff a greater burden of proof than the law requires. In Nelson v. Evans, 338 Mo. 991, 996-999, 93 S.W.2d 691, 694-695 (a case not overruled or criticized), our Supreme Court for the same reason (and others) condemned as reversibly erroneous an instruction which included the direction that, if “the truth as to the charge of negligence as against the defendant remains undetermined in your minds, after fairly considering the evidence, then your verdict must be for the defendant.” (Emphasis by the court) To the same effect, see Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 714, 127 S.W.2d 718, 724, and Robert v. New York Cent. R. Co., Mo.App., 122 S.W.2d 1, 4(7). Consult also Timper v. Missouri Pac. R. Co., Mo., 98 S.W.2d 548, 549(2), and Koebel v. Tieman Coal & Material Co., 337 Mo. 561, 568-572, 85 S.W.2d 519, 523-525(2). On the cited authority, we are constrained to conclude that the giving of defendant’s instruction D1 constituted reversible error. Since we therefore must set aside the judgment, discussion of plaintiff’s complaints leveled at defendant’s instruction D2 becomes unnecessary.

The judgment for defendant is set aside and the cause is remanded for further proceedings not inconsistent with this opinion.

RUARK, P. J., concurs.

      . All references to rules are to Supreme Court Rules of Civil Procedure, V.A. M.R., and (except as otherwise specifically stated) all references to statutes are to RSMo 1959, V.A.M.S.

      . Buchanan v. Rechner, 333 Mo. 634, 637, 62 S.W.2d 1071, 1072(3); Minter v. Mid-Continent Petroleum Corp., Mo.App., 147 S.W.2d 120, 122(3); Ajax Rubber Co. v. White, 216 Mo.App. 283, 286, 264 S.W. 466; Craig v. McNichols Furniture Co., Mo.App., 187 S.W. 793, 797(3).

      .Durwood v. Dubinsky, Mo., 291 S.W.2d 909, 915(7); Vannoy v. Swift & Co., 356 Mo. 218, 220, 201 S.W.2d 350, 351(2); Hancock v. State Highway Com’n., 347 Mo. 944, 949, 149 S.W.2d 323, 825(3); Rice v. Robertson, Mo.App., 48 S.W.2d 172, 179(4).

      . Wahl v. Cunningham, 332 Mo. 21, 34, 56 S.W.23 1052, 1057(8); Buchanan v. Rechner, supra, 333 Mo. loc. cit. 638, 62 S.W.2d loc. cit. 1073(4); Smith v. Ohio Millers’ Mut. Fire Ins. Co., 320 Mo. 146, 167-168, 6 S.W.2d 920, 927(5); Barger v. Beach, 142 Mo.App. 389, 392, 127 S.W. 120, 121(1).

      . Vannoy, supra note 3; Wentzville Tobacco Co. v. Walker, 123 Mo. 662, 27 S.W. 639; George L. Cousins Contracting Co. v. Acer Realty Co., Mo.App., 110 S.W.2d 885; Ajax Rubber Co., supra note 2; Reifschneider v. Beck, 148 Mo.App. 725, 129 S.W. 232; Mulloy v. Mulloy, 131 Mo.App. 654, 111 S.W. 843; Smith v. Haley, 41 Mo.App. 611. To the same effect, see Ittner v. St. Louis Exposition & Music Hall Ass’n., 97 Mo. 561, 11 S.W. 58; Minter and Craig, supra note 2; Hancock and Rice, supra note 3.

      . Buchanan, supra note 2; Wahl, supra note 4; Couser v. Thayer, Mo.App., 204 S.W. 27.

      . Browning v. North Missouri Cent. Ry. Co., 284 Mo. 439, 224 S.W. 748; Creve Coeur Lake Ice Co. v. Tamm, 138 Mo. 385, 39 S.W. 791; Baker v. Baker, Mo.App., 71 S.W.2d 757; Klingenberg v. Davis, 219 Mo.App. 1, 268 S.W. 99; Barger, supra note 4. See also Reed v. Young, 248 Mo. 606, 154 S.W. 766.


author: WADDILL, Commissioner.

text:
    Charles FOWLER, Jr., Appellant, v. Harold BLACK, Director, Bureau of Corrections, etc., Appellee.
    Court of Appeals of Kentucky.
    Jan. 18, 1963.
    Charles Fowler, Jr., pro se.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

While serving a sentence in the Kentucky State Reformatory Charles Fowler, Jr., violated certain regulations of that institution and was penalized under the provisions of KRS 197.045. This penalty consisted of the revocation of certain accumu•lated credit on his sentence and the denial of the privilege of earning further credit for a specific period.

Fowler brought this action in the Lyon Circuit Court seeking a judgment directing appellee to rescind the aforementioned penalty, contending, in effect, that he had been deprived of his statutory rights “without due process of law.” The trial court dismissed the complaint because it failed to state facts upon which relief could be granted. On this appeal Fowler reasserts the argument he made in the circuit court.

While KRS 197.045 does permit the Department of Welfare to allow a prisoner to earn, by obeying the rules of the prison, a credit on his sentence of not exceeding ten days for each month served, this statute also authorizes the Department to forfeit the time earned by the prisoner and to deny the prisoner the privilege of earning any credit if the prisoner violates the rules of the institution. Hence, the privilege granted by this statute is not a vested right, but it is merely a conditional gratuity which may be forfeited by the prisoner’s misconduct. See, State Board of Charities and Corrections v. Combs, 193 Ky. 548, 237 S.W. 32.

Since the benefit that a prisoner may receive under this statute is a matter of legislative grace, the General Assembly could impose such conditions as it deems best for society. Willard v. Ferguson, Ky., 358 S.W.2d 516. When Fowler claims the benefit provided by the statute he necessarily is bound by the condition which reserves to the Department the right to determine whether he was entitled to receive such benefit. We find no violation of “due process” involved in administering this statute. See Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612, 126 S.W.2d 1056. We are of the opinion that the circuit court entered the correct judgment.

Judgment affirmed.


author: BIRD, Judge.

text:
    Stratton O. HAMMON, Appellant, v. JEFFERSON COUNTY, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 18, 1963.
    Gavin H. Cochran, Peter, Heyburn & Marshall, Louisville, for .appellant.
    Charles W. Dobbins, County Atty., J. W. Jones, Charles P. Sutt, Jr., E. P. Sawyer, Louisville, for appellees.
   BIRD, Judge.

On September 3, 1947, the Fiscal Court of Jefferson County employed Stratton O. Hammon and an associate to perform architectural services requisite to the erection of a new county building in and for Jefferson County.

The parties signed a comprehensive written contract providing for the performance of substantially all necessary architectural services, described in the contract as follows:

“1. The Architect’s Services. — The Architect’s professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings; the drafting of forms of proposals and contracts; the issuance of certificates of payment; the keeping of accounts, the general administration of the business and supervision of the work.”

By the term of this contract the fiscal court agreed to pay the architects a fee of six percent of the cost of the work, cost of work being construed by the contract as meaning cost of construction to the owner, providing however for certain specified exclusions.

Paragraph 17 of the contract provides as follows:

“17. The Fiscal Court reserves the right to cancel the contract at any time before detailed drawings are started, and should said contract be cancelled prior to said time, a reasonable fee not exceeding $5,000.00 shall be paid to the architect.”

Hammon and his associate began work under the contract and notified the fiscal court in November 1947 that preliminary studies had been made and that detailed drawings had been prepared. Subsequent to this notice, the parties did on January 2, 1948, due to problems of finance, modify the contract so as to provide for a less expensive construction. The modified contract also provided for a computation of compensation differing somewhat from that in the original contract. Subsequent events make it unnecessary for us to discuss this change in detail.

However, the modified contract did incorporate the following order of the fiscal court:

“IT IS FURTHER ORDERED AND DIRECTED: That no further services shall be rendered by the architects, nor further obligations incurred by the court, under the terms and conditions of the contract hereinabove referred to, or at all, unless this Court orders said additional services, provided however, after this Court has examined said preliminary studies and has received, such additional reports as it may obtain, if it determines to go ahead with the project and does go ahead with it, then it shall direct said architects to complete the services provided for under said contract, to all of which Stratton O. Hammon and Walter C. Wagner being present in Court agree, but with the approval of this court, they reserve the right to make all others claims under the order of September 3, 1947, and the contract mentioned therein in the event payment is not ordered by the Court under the terms of this modified agreement as herein set out.” (Emphasis added.)

The fiscal court did not pay as provided in the foregoing order but rather cancelled the entire contract on January 21, 1948, by the adoption of a resolution in words and figures as follows:

“RESOLVED that the contract entered into with Stratton O. Hammon and Walter C. Wagner as shown in Order Book 53 page 188 and as modified on January 2, 1948 be terminated and cancelled as of January 21, 1948 and that the Clerk of this Court furnish to each of said architects an attested copy of this resolution, same to be furnished forthwith.”

Previous to the date of modification and cancellation the fiscal court had paid the sum of $3,000 on account for services rendered. Upon cancellation the architects charged the fiscal court with breach of contract and filed claim for $267,000 in damages resulting from the breach of contract, giving credit however for the $3,000 previously paid. The fiscal court denied the claim and it thereafter found its way through proper channels into the Jefferson Circuit Court wherein a judgment was entered denying the claim and dismissing the action.

Architect Hammon has alone appealed to this Court.

Perhaps we should note here that the first study by the architects produced plans for a building the cost of which was estimated at or about $6,000,000. The fiscal court complained that the cost was too much.

Further study was made and, thereupon, plans were produced for a building the cost of which was estimated at or about $4,-500,000. The claim for damages was computed at six percent on the lower figure.

We agree that whatever claim Ham-mon has for compensation or damages may be collected under the provisions of the original contract. The reservation of this right in the modified contract is too clear for cavil. Hammon’s right to recover is dependent upon the operation of the original contract and its construction. Except for his reservation of right the modified contract may henceforth be ignored.

The fiscal court had the right to cancel the contract any time before detailed drawings were started. In this case the detailed drawings were started without notice to the fiscal court that the architects had completed their preliminary studies and were ready for detailed drawings. In fact there is no specific provision of the contract requiring the giving of such notice. However, the right of the fiscal court to cancel is lost after the start of detailed drawings, and this Court is now and for the first time holding that this extremely valuable right shall not be denied except upon notice that the time for detailed drawings is at hand and upon specific authority to proceed with such drawings. The fact that the right to cancel is lost upon the start of detailed drawings is sufficient to imply a right to notice and a grant of authority to proceed.

And further, where there is a peculiar relation of a confidential and fiduciary character which gives to one of the parties an undue advantage over the other, the law requires the utmost degree of good faith in all transactions between them. Consequently we must hold here that there was an implied obligation on the part of the architects-to give notice that they were ready to proceed with detailed drawings.

Hammon had no authority under the original contract to proceed with detailed drawings until after notice and the fiscal court had the right to cancel until such time as it granted the authority to proceed. Such authority was never granted.

Having relied on the original contract any recovery by Hammon must he limited by Paragraph 17 of the original contract.

The judgment is affirmed.


text:
    BOWLING GREEN-WARREN COUNTY AIRPORT BOARD et al., Appellants, v. L. K. LONG et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 9, 1962.
    Rehearing Denied Feb. 15, 1963.

      G. D. Milliken, Jr., B. G. Davidson, Marshall Funk, Bowling Green, for appellants.
    Bell, Orr & Reynolds, Coleman, Harlin & Orendorf, Parker Duncan, Bowling Green, for appellees.
   WADDILL, Commissioner.

On July 30, 1957, the Bowling Green-Warren County Airport Board instituted this proceeding against appellees to condemn, from their three farms, land needed for the construction of a 1200 foot extension of the airport’s north-south runway. Upon trial in the circuit court the aggregate verdicts were $39,024.00 for about 49 acres taken and $35,400.00 for consequential damages. As grounds for reversal it is urged that the court erred in permitting the jury to consider incompetent evidence and in excluding competent evidence and that the damages are excessive.

There were differences in the estimates of -value of appellees’ property. The principal source of the disagreement was that the witnesses for the appellants considered the property as only unimproved ■farm land while those for the appellees regarded all the land as adaptable for division into residential lots. In this connection appellants contend that the court over objection permitted incompetent testimony concerning the estimates of value of the land being taken on the basis of its susceptibility for use as a subdivision. Adaptability for particular purposes for which the land may reasonably be used is a proper element for the witnesses to consider in arriving at their estimates of the value of the land. East Kentucky Rural Electric Cooperative Corporation, Inc. v. Smith, Ky., 310 S.W.2d 535. Since there was testimony that ap-pellees’ land in its entirety was adaptable for subdivision purposes and there was a reasonable expectation that in the near future it could have been divided into lots, appellees were entitled to have the probative value of this evidence considered by the jury. Commonwealth Dept. of Highways v. Vincent, Ky., 357 S.W.2d 678.

Appellants also contend that testimony relating to the sale prices of several lots located near appellees’ property was incompetent because they were not shown to be comparable to appellees’ land. While the court’s failure to exclude this testimony constituted error, it does not require reversal of these judgments. We reach this conclusion for the reason that upon a consideration of the whole case the testimony in question did not have enough significance to be prejudicial.

Appellants further assert that the court erred in excluding certain airport zoning ordinances which had been adopted by the Fiscal Court of Warren County and by the General Council of Bowling Green. The proffered exhibits are not in the record. However, the proved resolution o'f the fiscal court recites that its order was to regulate and restrict the height of structures and create airport or approach zones and transition boundaries in the vicinity of the Bowling Green Municipal Airport. The obvious purpose of the offered evidence was to show that appellees’ land in the immediate vicinity of the proposed runway was already subject to restrictions and thus to minimize incidental damages. The ground of exclusion of the ordinances was that in their enactment the terms of the enabling statute had not been complied with. The statute in effect at the time, KRS 183.754 (1953 edition), authorized the legislative body of a county or any political subdivision to adopt airport zoning regulations after a public hearing in relation thereto upon at least fifteen days’ newspaper notice thereof.

The Court heard evidence in chambers that upon a diligent search of the local newspapers no legal notice of a public "hearing on the proposed adoption of the ordinances could be found. There was no •countervailing evidence nor evidence that public hearings were held. The evidence overcame the presumption of validity of the ordinances.

Provisions in a statute outlining the procedure by which a zoning ordinance may be adopted are generally mandatory, and such ordinance if adopted is invalid where it was not passed as provided in the enabling statute. Failure to meet the prerequisite statutory requirement as to notice and a public hearing renders the ordinance invalid. City of Somerset v. Weise, Ky., 263 S.W.2d 921; cf. Louisville and Jefferson County Planning & Zoning Comm. v. Ogden, 307 Ky. 362, 210 S.W.2d 771; 8 McQuillin, Sections 25.251, 25.58; 58 Am. Jur., Zoning, Sections 9, 10; 101 C.J.S. Zoning §§ 11, 45, 47; 1 Yoldey, Zoning Law. & Pet., Sections 72, 87. An invalid zoning enactment or regulation does not affect the right of owners to use their property within the alleged zone as they see fit. 101 C.J.S. Zoning § 22.

Appellants maintain the ordinances may not be collaterally attacked and the appel-lees were estopped to question their validity.

The validity of an ordinance usually can be attacked only directly and not collaterally. But if an ordinance is void in the sense that the legislative body had no constitutional or statutory power to pass it or it was never legally enacted, it may be collaterally attacked. 6 McQuillin, Section 20.14.

It is a generally accepted rule that one who recognizes an ordinance and treats it as in force for a period of years may, under the circumstances, be precluded from challenging its .validity. But all essential elements of estoppel must be present. 6 McQuillin, Section 20.12; Palmer v. Elizaville Graded Common School District, 235 Ky. 75, 29 S.W.2d 648; O’Hara v. City of South Ft. Mitchell, Ky., 290 S.W.2d 455. In the instant case there was no indication that any of the appellees ever acquiesced in the purported zoning or that the terms of the ordinances and regulations were ever tried to be imposed upon their property during the nine years since their adoption. The elements of estoppel are lacking, and the court properly rejected the evidence.

We come to the question of whether the verdicts are excessive. The awards of $800 per acre for the land taken are amply justified under the proof. We therefore hold the verdicts in that respect are not excessive. However, a more serious question is presented concerning whether the awards for consequential damages are sustainable under the peculiar circumstances involved herein.

The testimony relating to consequential damages was not confined to factors which would properly show this character of damage. Specifically, the appellants’ evidence established that regulations prescribed by the Federal Civil Aeronautics Board require “approach zones” at the end of a runway, and “turning zones” and “transition zones” over land adjacent to the runway. In some parts of these zones planes may fly as low as five feet above the ground. The erection of any structure that would impede flying operations within 1000 feet of the runway is prohibited. As the regulations pertain to appellants’ airport these flight zones were specifically described and identified and shown to be necessary in the operation of the airport. Under our view of the case the testimony showed that appellants were not only condemning 49' acres of appellees’ land for the airport runway but were also establishing their right to a certain use of the air space above additional acreage of the appellees.

Appellees were entitled to receive compensation for the latter “taking” since the condemnation of land does not ipso facto include the right to invade the reasonable air space of adjacent land. In United States v. Causby, (1945) 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, it was held-that the invasion of air space by frequent and regular flights of low flying planes was a “taking,” in the constitutional sense, of an air easement for which compensation must be made. This case was followed in Griggs v. County of Allegheny, Pa., (1962) 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585. Also see Swetland v. Curtiss Airports Corp., 6 Cir., 55 F.2d 201, 83 A.L.R. 319; Reaver v. Martin Theatres of Florida, Fla., 52 So.2d 682, 25 A.L.R.2d 1451; 6 Am.Jur., Aviation, Sections 3, et seq.; 2 C.J.S. Aerial Navigation §§ 3, 4, 5.

Although the pleadings in this case did not expressly seek to condemn air easements pursuant to KRS 183.122, evidence was introduced without objection showing (in, substance, if not in so many words) that such easements were being “taken” and it is apparent to us that the verdict for consequential damages included what was in reality an award for the “taking” of such easements. Under this determination the awards made for consequential damages are justified.

This was not a proper procedure, and is not approved for future- cases, but in view of the relative novelty of the problem in this jurisdiction and the hardship that would result to all the parties (who-have been engaged in this litigation since 1957) if a new condemnation proceeding; were required in order to obtain and establish the compensation for easements that both sides, through treating their use and exercise as an element of consequential damages, have necessarily considered as already taken, we invoke CR 15.02 and deem the pleadings to be amended to conform to the issues that were tried. This rule may be invoked even though the appellate level has been reached. Coleman v. Greer, Ky., 343 S.W.2d 584; Purofied Down Products Corp. v. Travelers Fire Insurance Co., 2 Cir., 278 F.2d 439.

Accordingly, the judgment must be amended so as to convey the air easements over appellees’ land to the Bowling Green-Warren County Airport Board which were identified and described in appellants’ exhibit number 6.

As amended in accordance with the foregoing opinion, the judgment is affirmed.

MONTGOMERY and BIRD, JJ., dissenting.


author: CULVER, Justice.

text:
    TRUCK INSURANCE EXCHANGE, Petitioner, v. Martha Wofford MICHLING et al., Respondents.
    No. A-9179.
    Supreme Court of Texas.
    Jan. 16, 1963.
    Rehearing Denied Feb. 13, 1963.
    Steinle & Aycock, Jourdanton, Gay & Meyers, Austin, for petitioner.
    Lieck & Lieck, San Antonio, Ted Butler, Karnes City, J. Taylor Brite, Jourdanton, for respondents.
   CULVER, Justice.

This suit was brought by Mrs. Martha Michling and other statutory beneficiaries to recover death benefits provided by the Texas Workmen’s Compensation Act. Judgment was rendered in favor of these beneficiaries by the trial court and the Court of Civil Appeals has affirmed. 358 S.W.2d 697.

The only evidence offered to prove that the deceased, Hugo Michling, sustained an accidental injury in the scope of his employment was that given by his wife, Mrs. Michling. She related that her husband left home to go to his place of work about 30 miles away on the morning of April 12, 1958, and at that time was apparently in good health; that she saw him when he ■got out of his car on his return home about 3:30 that afternoon and that “he sort of stumbled and caught himself and walked on up to the house and he said his head was hurting him terribly; he was batting his ■eyes and was very pale.” She quoted him as saying that “he had hit his head on the bulldozer, the iron bar across the seat. It slipped off the hill and he hit his head.” She also testified that he said “his head hurt so bad that he couldn’t do anything else but ■ Rad to put up the bulldozer and come home.” Michling died at the hospital on May 11, 1958.

This case turns on the question of whether or not the foregoing testimony given by Mrs. Michling is admissible under the rule which admits res gestae utterances as an ^exception to the hearsay rule.

In the first place, while the workmen's compensation law is to be liberally construed and administered in favor of the •employee, this does not mean that the rules of evidence generally in the workmen’s compensation case are to be applied differently than they would be in cases arising under common law. Decisions of other jurisdiction's support this view and we have found no Texas authorities to the contrary. Williams v. Jahncke Service, 217 La. 1078, 48 So.2d 93 (1950); Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717 (1929); Mason & Dixon Lines, Inc. v. Gregory, 206 Tenn. 525, 334 S.W.2d 939 (1960). We therefore will discuss the admissibility of Mrs. Michling’s testimony based on the foregoing assumption.

This then brings us to the question of what are the general rules governing the admission of hearsay statements as res ges-tae. Wigmore in his work on Evidence, 3rd Edition, § 1747, has the following to say:

“This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the- utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrust-worthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts. * *

In § 1750 he sets out the requirements as follows:

“(a) Nature of the Occasion. There must be some occurrence, startling enough to produce this nérvous excitement and render the utterance spontaneous and unreflecting. * *
“(b) Time of the Utterance. The utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. This limitation is in practice the subject of most of the rulings.
“It is to be observed that the statements need not be strictly contemporaneous with the éxciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. * * *
' “Furthermore, there can be no definite and fixed limit of time. Each case must depend upon its own circumstances.
“(c) Subject of the Utterance. The utterance must relate to the circumstances of the occurrence preceding it. ⅝ sjs »

The very unusual circumstance in this case is that the hearsay statement of Mrs. Michling is the only evidence of the event which gives rise to the statement. A hearsay statement, as res gestae, is admitted as an exception to the hearsay rule because it is made under circumstances which raise a reasonable presumption that it is the spontaneous utterance of thought created by or springing out of the occurrence itself and, so to speak, becomes a part of the occurrence. But in this case the only evidence of the occurrence is the hearsay statement. Thus the Court of Civil Appeals is conceding credit to a narrative to prove the very circumstances from which it is said to derive its credit. Its trustworthiness, as to the happening of an accident, is presumed from the influence of the accident which its trustworthiness is taken to prove. Thus this proof, to use a trite expression, is attempting to lift itself by its own bootstraps. There is not any independent proof that Hugo Michling suffered any injury at approximately the time and place alleged. There appeared to be no iron bar across the bulldozer seat. There was no testimony from any other source that he was present at his place of employment on the day of the alleged injury. The time records of his employer indicated that Michling worked Friday, April 11th, until noon and that he did not work on the 12th. The operating records kept by his employer indicated that none of the tractors owned by the employer were in operation on that date.

The medical testimony is that Michling died of a cerebral hemorrhage resulting from a congenital weakness in one of the blood vessels in the brain and that such a hemorrhage may be precipitated by a cough, a strain, a blow to the head or may occur spontaneously. The fact that Michling died' from a cerebral hemorrhage does not necessarily indicate any accidental injury. There-was no visible mark of any injury upon his. head.

It is generally held that in passing upon the admissibility of a statement offered as a part of the res gestae the trial court has. considerable discretion. Pilkenton v. Gulf, C. & S. F. Ry. Co., 70 Tex. 226, 7 S.W. 805 (1888); Southern Surety Co. v. Weaver, 273 S.W. 838 (Tex.Com.App.1925); Skillern & Sons, Inc. v. Rosen, Tex., 359 S.W.2d 298.

In Pacific Mutual Life Ins. Co. of California v. Schlakzug, 143 Tex. 264, 183 S.W. 2d 709 (1944) we held that whether or not a statement is admissible as res gestae is a question of law, which an appellate court has the same power to determine as it has-any other law question. We do not construe-that holding as necessarily running counter to the foregoing proposition. In Schlakzug there was clearly no indication that the statement attributed to the deceased was-made while laboring under stress or excitement produced by a sudden or startling-event. At any rate the discretion of the trial court does not extend to the admission of the testimony here for the reason that there is no proof otherwise of the occurrence of which the statement is asserted! to be a part.

As said by Professor Wigmore, for a statement to come within the doctrine of res gestae it must he made as a result of some startling occurrence which renders the utterance spontaneous and unreflecting but that is not to say that the startling occurrence itself may be proven by the statement alone. To paraphrase what is said in Schlakzug, supra, if this employee had not died and it became material to prove how the accidental injury was received this ■statement given here would not be admissible as res gestae. The decision as to whether the statement was res gestae does not depend on the after-effect of the employee’s death. It was either res gestae or not at the time it was uttered.

For declarations to be admissible in ■evidence as part of the res gestae they must be made in connection with an act proven. In other words there must be evidence of an .act itself admissible in the case independently of the declaration that accompanies it. Kalschinski v. Illinois Bankers Life Assur. Co., 311 Ill.App. 181, 35 N.E.2d 705; Staley v. Royal Pines Park, 202 N.C. 155, 162 S.E. 202.

As aptly said in 32 C.J.S. Evidence § 405:

“ * * * It is proceeding in a circle to use the declarations as proof of facts necessary to constitute declarations part of the res gestae.”

Our holding in American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, has some bearing on this point. In that case we held that the testimony of the doctor relating what the deceased Coleman told him, namely, that “he was going from Jacksonville to Houston, that he was driving a Brown & Root jeep, and that he was being transferred, going to be transferred to another job” was not admissible as a res gestae •exception to the hearsay rule. We said that while the statement might have been made a short time after the accident and while the deceased was in extreme bodily pain and emotional shock, yet it was lacking in the requirement that it must tend to ex-plain the exciting event.

Coleman’s death resulted from injuries caused by the overturning of his automobile on the highway. The only question in that case was whether or not he was at the time of the accident acting in the course of his employment. The rejected testimony was offered for the purpose of establishing the affirmative of that question. While here Mrs. Michling’s statement in part did relate to the alleged accident, nevertheless it was offered for the same purpose, namely, to prove that Michling sustained an accidental injury while engaged in the course of his employment. The principle involved, we think, is somewhat the same in both cases.

A case quite comparable on the facts, that of Beck v. National Surety Corp., 171 F.2d 862 (5th Cir., 1949) is authority for the proposition that in this type of situation there must be independent proof of the event to corroborate the hearsay evidence. Beck died of a cerebral hemorrhage. The alleged injury occurred about 3:30 or 4:00 in the afternoon when Beck strained himself while trying to close a valve. He did not complain to his fellow workers at that time nor later after work when three of them were drinking beer. At about 4:45 p. m. he tried to get in touch with his wife by calling his sister-in-law. It was not until around 6:30 p. m. that he said to his wife when she arrived home that he strained himself on the j ob and that he had a terrible headache and a terrible pain in his left side and leg, and that caused him to fall. However, at this time he was lying on the kitchen floor in a paralyzed, semi-conscious condition. He did not recognize his wife when she first arrived and could not stand or talk. He made his statement to her after he had regained consciousness. The 5th Circuit in upholding the trial court’s exclusion of this testimony went on to say:

“There is absolutely no direct or substantial evidence in this case of any accidental injury sustained by the deceased while at work, except the statements alleged to have been made by him approximately two hours after his alleged injury, and at his home several miles.away from the plant. Such statements .were manifestly incompetent as original proof of the principal fact in issue, i. e., whether the injury alleged was sustained in the course of employment, where there was no other proof of that fact to lend them support. * * • * »

See also the following cases on which the 5th Circuit relied:

“Fitzpatrick v. Woodmen of the World Life Ins. Society, 238 Mo.App. 385, 179 S.W.2d 753; Huth v. Huth, 10 Tex.Civ.App. 184, 30 S.W. 240; Aetna Life Ins. Co. v. Ryan, 2 Cir., 255 F. 483; 32 C.J.S. Evidence, §§ 405-408, p. 23, Sec. 405.”

The respondent and the Court of Civil Appeals principally rely on three Court of Civil Appeals cases—Texas Employers Ins. Ass’n v. Shifflette, Tex.Civ.App., 91 S.W.2d 787, wr. dism.; Atkinson v. United States Fidelity & Guaranty Co., Tex.Civ.App., 235 S.W.2d 509 (1950), ref. n. r. e.; Texas Employers Ins. Ass’n v. Noel, Tex.Civ.App., 269 S.W.2d 835 (1954), ref. n. r. e. In each of these cases the employee suffered an injury from which he subsequently died. In each case the employee told his wife how the accident happened and the wife was permitted to testify as to what her husband had said.

In the Shifflette case, it is undisputed that the employee was working on the day of the alleged accident and that he had to climb up the stairs to the fourth floor. Both of these facts were established by independent proof. The statement allowed as res gestae was: “My heart. I had — the manlift was out and I had to rush up those steps and I fell and it hurt me.” The employee in this case had weakened and diseased heart muscles. He usually rode the elevator to the fourth floor where he worked. An unusual strain was placed on his heart by having to climb these steps, and thus the resulting injury came'within the statute.

In the Atkinson case, the employee was called by his employer at.-l :00 a. ,m. back to the plant where he was employed to repair • a fan on a freezing unit. There was always an accummulation of ammonia gas in varying quantities around these units. When he returned home from work some three hours later there was, according to his wife, a strong odor of ammonia gas on his body. He became nauseated and his vomit gave forth a similar strong odor. His statement to his wife was that he has inhaled a lot of gas and that caused him to become ill. These facts constituted some independent proof of the basic event.

In the Noel case, the son of the employee found his father’s tools attached to the mechanism of the well where his father had said he was hit by the tools while working. The employee had told his wife that he hurt himself while working on the well. Thus there was some independent proof of the event in this case.

It should be noted, however, that in none of these cases do the courts say that the testimony would have been admitted if it had not been for some facts constituting ' independent proof. They speak as though they were deciding its admissibility according to the well-established rules of res ges-tae. The distinction between the latter two cases and the one here may be regarded as somewhat .tenuous but in our opinion the liberality shown therein should not be further extended.

Our holding in Wade v. Texas Employers’ Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197 (1951) cited by the Court of Civil Appeals, is not an authority for the proposition that the statement made by Michling to his wife is admissible as evidence. In that case the deceased employee was at work when he made the statement that “this gas is about to get me,” which was admitted as a res gestae utterance. But two of his fellow employees testified that, there was an unusual amount of chlorine gas present • when .they were at work which was produced from nearby operations in a chemical plant. The proof of the occurrence, namely, the presence of chlorine gas, which gave rise to the statement, did not depend upon the statement of the deceased.

For the foregoing reasons the judgments of the trial court and of the Court of Civil Appeals are reversed and judgment here rendered in favor of petitioner, Truck Insurance Exchange.

      . Some states have provided by statute that in Workmen’s Compensation cases ' the common law or statutory rules of evidence or procedure shall not' govern. Perry v. Industrial Accident Commission, 180 Cal. 497, 181 P. 788; Case of Pigeon, 216 Mass. 51, 102 N.E. 932.