author: MORGAN, Judge.

text:
    Jasper TITONE, Appellant, v. TEIS CONSTRUCTION COMPANY, Inc., a corporation, Respondent.
    No. 24794.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1968.
    Rehearing Denied April 1, 1968.

      Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellant.
    Donald K. Hoel, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel, for respondent.
   MORGAN, Judge.

At the close of plaintiff’s evidence in this jury tried case, the trial court sustained defendant’s Motion For A Directed Verdict. Plaintiff has appealed, and the ultimate question is whether or not he made a sub-missible case.

Plaintiff’s theories of recovery against defendant were set out in one paragraph of one count of the petition as follows: “For cause of action against Defendant, Plaintiff states that for several months in 1965, the exact times of which are unknown to Plaintiff, but are known to Defendant, Defendant wrongfully, illegally, wantonly, and with legal malice, recklessly and with gross negligence, operated construction and excavating work in front of, around and near his business place, blocking access thereto, causing heavy vibrations, damaging his property and causing him loss of business to his actual damage in the sum of Four Thousand ($4,000.00) Dollars; that said action as above described entitle him to punitive damages in the sum of Six Thousand ($6,-000.00) Dollars.”

Having commingled several legal theories, obvious in the quoted allegations of the petition, plaintiff is consistent in his rather ambivalent attack by presenting here all possible avenues of recovery under one “Point.” However, if there is to be any logic to our review of the case, we, of necessity, will consider individually those theories of recovery touched on in the petition, i. e., (1) obstruction of access, (2) negligence and (3) trespass by nuisance.

The setting for defendant’s alleged actionable conduct was on the south side of Tenth Street in Kansas City, Missouri. Plaintiff was in possession of business locations at 407 and 409 East Tenth Street and operated a pool room in 407 and a laundromat in 409. Both businesses faced to the north and a north-south alley bordered 409 on the east. The sidewalk in front of the locations was approximately 8 feet wide with adjacent metered parking at the curb. A parking lot in the rear (south side) of the building was available for plaintiff’s customers during certain limited hours of the day. On May 14, 1965, the City passed Ordinance No. 31241 which, among other things, authorized the Kansas City Power & Light Company to construct and maintain two under-sidewalk reinforced concrete vaults for the installation of electrical transformers and wiring in front of plaintiff’s locations. The following excerpt therefrom indicates somewhat the extent of the proj ect: “* * * The east wall of the combined vaults will be on a line approximately 14 feet west of the west line of the north-south alley. From said east wall the vaults will extend westward for a distance of 32 feet, 3 inches. The width of the vaults will be 9 feet, 5 inches, and the depth approximately 10 feet, 9 inches.” Although not clearly shown, it appears the work extended south along the alley. Defendant was the contractor performing this work.

The testimony was limited to that of plaintiff, and it can be fairly generalized with particular attention being given to setting out that part apparently thought significant by plaintiff as indicated in his brief. He drew some customers from the many apartments and hotels in the vicinity; customers were prevented from parking in the metered curb locations; the parking area to the rear was free after 6 P.M. and on week ends, but the alley access route was barred due to this work, and if the parking area was to be used, a customer would have to walk west to Oak, north to Tenth and east to plaintiff’s locations; workmen noisily and dustily cut out the sidewalk by use of a jackhammer and a back hoe; when they hit solid concrete, they had to use a “heavy duty machine like a pile driver” and when it was dropped the whole building would shake; he had a water pump that provided a continuous flow of hot water at 140°s to the different washing units and “ * * * the vibration hit so hard one day it clogged my spindle.”; this caused some flooding and required repair of the unit; several days later, “Same thing. It blew. I had to go through the same deal. I had to run around and buy the parts and shut down again.”; wooden sawhorse barricades surrounded the working area cutting off “the entrance to my business”; they (apparently the general public) “walked across the street and around. That is the only thing they could do.”; for over 90 days the sidewalk barricades compelled the public to go around “ * * * traffic was ‘nil.’ ”; customers quit coming rather than try to “jump around to get into the doorway”; because of the noise and dust he had to keep his door shut, and the resultant heat drove customers away; some of his pool-playing customers used the tables in the YMCA across the street; the walkway provided ran east and west next to the building and was 2(4 to 3 feet wide and at times solid plywood covers were placed over the excavation; picture exhibits show the walkway had to be removed when the workmen were pouring concrete; he removed the inside door between 407 and 409 so that customers could pass between the laundromat and pool hall where he also sold peanuts, candy and pop corn; the exhibits indicate the work did at times block direct access to 407; when necessary to remove the plywood covers and the walkway, defendant’s employees would stop and provide a plank walkway for customers or plaintiff. Defendant’s attorney made the following inquiry of plaintiff, “So we don’t have any confusion about this, is it a fact, Mr. Titone that your customers at all times had access into your laundromat?” Plaintiff’s reply was “Yes, sir. They could at all times come in.” Plaintiff also testified the workmen were always “hard at work,” often continued to work until 10 P.M., and they were always courteous and polite to any customers.

First, plaintiff’s right to recover for the alleged invasion of his right of ingress and egress will be considered.

In Dillon Municipal Corporations, Sec. 730, Fourth Edition, we find: “Although the distinction between the extent of the rights of the public in a street and the right of the abutting proprietor to access to his premises from the street, has been often overlooked, yet it is one which has been asserted by high authority, and which may be regarded as thoroughly established. The right of an abutting owner to access to and from the street is a private right, in the sense that it is something different from the right which the members of the public have to use the street for public purposes * * * ” The protection of this private right, peculiar and special to the abutting proprietor, has created general legal principles uniformly stated in text authority; but, notwithstanding the urbanization of our society, the decided cases on this singular issue have been so limited as to cause text writers to comment on the “paucity” of judicial precedent. Annotation: 68 A.L.R. 340. In 64 C.J.S. Municipal Corporations § 1746, p. 173, we find: “Ordinarily an obstruction of a temporary character is not illegal per se and a nuisance, as where persons other than abutting owners temporarily obstruct the streets in connection with business purposes, and such an obstruction becomes a nuisance only from unnecessary delay in removal. Thus, a municipality may lawfully authorize a temporary and reasonable obstruction of streets, and such an obstruction does not constitute a purpresture.” (Emphasis added) In 25 Am.Jur., Highways, Sec. 320: “A loss of business due to a mere temporary obstruction for a lawful purpose, within the limitation of necessity and reasonableness, is damnum absque in-juria. But liability will be incurred by exceeding such limitation.” See 86 A.L.R. 101; 68 A.L.R. 1510. The rule accepts a temporary obstruction as a legitimate incident of and limitation on an easement of ingress and egress. In Frick v. Kansas City, 117 Mo.App. 488, 93 S.W. 351, this court, after following the general rule, found defendant had exceeded “such limits.” In that case the defendant in sewer construction had piled a ridge of dirt in the street along the front of plaintiff’s property and had entirely shut off access. The ridge of dirt was allowed to remain long after it was known it would not be needed for back-fill and would have to be hauled away. This court said: “ * * * had defendants observed the degree of care required of them in raising the embankments in the street and on the vacant lot, and had they acted with reasonable diligence in the removal of the dirt from the street when it became apparent that it was not needed for refilling, plaintiff would have had no cause of action for any damage inflicted upon her property, or any inconvenience or annoyance incurred by her in consequence of the presence of the embankments.”

In the instant case plaintiff’s right to recover on his first theory is conversely bottomed on a showing of the “unreasonableness” of the defendant’s effort to provide access under all of the existing circumstances. Of necessity, the size and extent of the project has some bearing on such a determination. It appears the ordinance contemplated a major project. Neither was it alleged, nor was an effort made by plaintiff to offer any evidence that the 90 day work period was unreasonable. To the contrary, the evidence shows defendant’s employees worked hard and long hours in attempting to complete the project which directly tended to minimize the effect of their presence in the area. We do not belittle plaintiff’s complaints and recognize his pattern of conducting the business was undoubtedly disturbed, but “property owners, as well as the traveling public, must expect to suffer the inconvenience and even damage occasioned by the presence of such obstructions.” Frick v. Kansas City, supra, 93 S.W. 1. c. 353. Further, no recovery can be had for the temporary removal of the metered parking stalls at the curb as such action was encompassed in the right to obstruct the adjacent street, nor for blocking the alley on the east. The latter only required a longer walk from the parking area around the buildings to the west resulting in a circuity of route which has often been ruled non-compensable. State ex rel. State Highway Commission v. Meier, Mo., 388 S.W.2d 855.

Distinctly different legal principles are applicable to plaintiff’s two remaining theories of liability. “Nuisance and negligence are two different kinds of torts. ‘Negligence’ is a failure to use a degree of care required under the particular circumstances involved; whereas ‘nuisance’ does not rest on the degree of care used, but on the degree of danger existing with the best of care.”, Bollinger v. Mungle, Mo. App., 175 S.W.2d 912, 1. c. 916; however, a claim based upon either theory requires proof of one common and essential element, i. e., proximate cause. It must be determined if plaintiff offered sufficient evidence to enable the jury to trace the causal connection between the action complained of and the claimed damage to the water pump. The only evidence offered was plaintiff’s statement that during the vibrations the “spindle” on his water pump “clogged” requiring repairs and at a later date the same thing happened with the descriptive explanation “It blew.” In Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 498, we find the oft quoted standard for resolving the question of causation: “Of course, a finding essential to recovery may be proved by circumstantial evidence; but, our appellate courts have said repeatedly that, in civil cases, the shown circumstances must be such that the facts necessary to support the finding may be inferred and reasonably must follow, that the existence of such facts may not depend upon guesswork, conjecture and speculation, and that the evidence should have a tendency to exclude every reasonable conclusion other than the one desired. * * * ” Osterhaus v. Gladstone Hotel Corporation, Mo., 344 S.W.2d 91; Lindsay v. Wille, Mo., 348 S.W.2d 1, 4. Did the evidence offered “have a tendency to exclude every reasonable conclusion other than the one desired” that the vibrations “clogged” some part of the equipment ? Certainly the normal connotation of the word “clogged” in connection with a water system is that it became stopped up. A jury would have to resort to guesswork, conjecture and speculation to find it resulted from vibrations. If the terminology used held a special meaning for plaintiff some explanation should have been given. The shortcomings of the probative value of the proof offered are made more apparent by reference to an answer of plaintiff in describing the duties of his repairman that came most every week. It was, “ * * * repairs, repairs, and repairs and fixes.” In the absence of proof sufficient' to sustain a finding of proximate cause, there is no necessity that we consider defendant’s additional contentions that proof is lacking to establish other necessary elements of a claim founded on either negligence or nuisance.

We agree with the trial court that plaintiff failed to make a submissible case, and the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Junior DeWayne JACKSON, Claimant-Appellant, v. McDonnell Aircraft Corporation, Employer-Respondent.
    No. 32741.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Rehearing Denied March 21, 1968.

      Donald M. Witte, George G. White, Brentwood, Satz & Ponfil, St. Louis, for claimant-appellant.
    Robertson, De Voto & Wieland, Louis A. Robertson, Robert E. Wieland, Morton K. Lange, St. Louis, for employer-respondent.
   DOERNER, Commissioner.

This appeal, originally taken to the Supreme Court but transferred here for lack of jurisdiction, involves a claim for com pensation under the Workmen’s Compensation Law.

On August 24, 1964, a few minutes before the end of his work day, claimant was observed to be standing, with his arms at his side, in the area where the last task assigned to him had been completed by him and approved by the employer’s inspector. When first observed claimant was bleeding profusely from a severe cut on the right side of his throat which had severed his jugular vein and his posterior facial vein. At the hearing before the Referee claimant testified that he had no memory of any activities or events which occurred on the day in question subsequent to his reporting for work at 7:00 A.M. Neither party produced an eyewitness as to the manner in which claimant had sustained his injury. In the absence of any direct evidence as to the way in which he had been injured claimant throughout the proceeding has relied on the presumption stated as a part of what the court called its “general observations” in Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165, 167, that, “ * * * the burden is on a claimant to show that an employee’s injury resulted from an accident arising out of and in the course of his employment; but, when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment; that such presumption is rebuttable.” Employer, by its amended answer, denied that claimant had been injured in an accident arising out of and in the course of his employment and pleaded the affirmative defense that whatever injury the claimant had sustained was “self-inflicted and not the result of an accident.” The Referee and the Industrial Commission denied claimant’s claim for compensation, and on his appeal the Circuit Court of St. Louis County affirmed the Commission’s final award.

The evidence developed during the claimant’s presentation of his case showed the following: Claimant, 30 years of age at the time of the hearing in February, 1965, was first employed by the employer, McDonnell Aircraft Corporation, on March 3, 1958, but voluntarily resigned on July 11, 1958. He was rehired on April 11, 1961, and continued in the employ of McDonnell until August 24, 1.964, being then classified as a Mechanic Airplane Production, Grade 1. On January 28, 1963 he consulted Dr. James E. Meyer, a general practitioner, complaining of an enlarged varicocele and nervousness. Dr. Meyer prescribed a suspensory but no medication. On July 17, 1963, the claimant saw the doctor and complained of anorexia, loss of appetite, nervousness and diarrhea. Dr. Meyer prescribed a tranquilizer and advised claimant to return in a week, but claimant did not return until January 27, 1964. His chief complaints then were loss of appetite and nervousness, and the diagnosis the doctor made was anorexia, nervosa, depression and symptoms of nervousness. Claimant’s next consultation with the doCv, tor was on July 23, 1964, at which time Dr. Meyer found the claimant depressed and without appetite. On that day the doctor urged claimant to see a psychiatrist, Dr. Edwin Schmidt, gave claimant a vitamin shot, and prescribed Librium, an antibiotic. On July 27, 1964 claimant returned to Dr. Meyer, who found him still depressed, with no improvement, and since claimant had not seen Dr. Schmidt the doctor again urged him to do so. The last time the doctor saw claimant prior to the subject occurrence was on August 21, 1964, when he found him slightly improved but still depressed and without appetite, and for the third time urged claimant to see Dr. Schmidt, the psychiatrist Dr. Meyer had recommended.

Between January 1, 1964, and August 24, 1964, claimant was absent from his employment on 26 days, the last of which was on August 21. Of these, 12 were recorded as being due to personal reasons and 14, including that on August 21, for illness. On July 27, or 28, 1964 David P. Barbeau, the assistant foreman then over claimant, together with the union’s shop steward and Hoelting, Barbeau’s supervisor, talked to the claimant about his absenteeism. Claimant told them that he was extremely nervous and under a doctor’s care, and that his doctor had recommended he see a psychiatrist. Claimant’s evidence also showed that he was on his vacation for two weeks beginning August 3, 1964, and that he returned to work on August 17, 1964.

According to claimant’s wife he arose at 5:30 A.M. on August 24, 1964, ate his breakfast, played with his young daughter, and discussed with her her plans for the day and their plans to go somewhere after work. Claimant departed at 5:45 A.M. after kissing her good-bye. Claimant testified that he remembered riding to work that morning in a car pool, but stated that he didn’t know the names of any of the other members of the pool except a man named Cooper, whose first name he didn’t know. He did know that he reported for work that morning at 7:00 A.M., in Building 1, Department 177, hut testified as previously stated, that he could not recall anything after that time on that day. When first cross-examined claimant was asked, “ * * * Have you ever been treated for a nervous condition before August 24, 1964?” and answered, “Yes, sir.” He was then asked who had treated him for such nervous condition and replied, “Dr. Meyers, sir.” Claimant’s cross-examination was interrupted for the appearance of other of his witnesses, and when it was resumed six days later he was asked and answered:

“Q With reference to Dr. Meyer, do you know how long you had been under his care and attention — under the care and attention of Dr. Meyer. Can you tell me how long Dr. Meyer had been treating you for any condition ?
“A No, sir.
“Q Before August 24th?
“A. No, sir.
“Q And I believe you did testify he was treating you for nervousness, is that correct, before August 24, 1964, or did you say that?
“A I don’t remember.
“Q You don’t remember. And let me ask you this then: Were you being treated for a nervous condition by Dr. Meyer before August 24, 1964?
“A I don’t remember.”

At 2:11 P.M. on August 24, 1964, Lester J. Presley, the assistant foreman then in charge of claimant, assigned him the task of replacing a bolt of improper length with one of the proper length on a control rod. The rod was located in a hole or compartment underneath door L-89 on an airplane under construction designated as C-230. The so-called door was in fact a flat sheet of metal approximately 8 inches by 14 inches in size, fastened to the underneath side of the left wing of the plane by screws, and was situated close to the fuselage. The underside of the wing was about 7 feet off the floor. The meticulous records kept by the employer, which were introduced by claimant, reveal that claimant completed the replacement of the bolt and requested an inspection of his work at about 3:00 P.M., preparatory to closing the door; that Gerald W. Mueller, an inspector, examined the work performed and approved the closing of the door at some time between 3:00 and 3:10 P.M.; that claimant proceeded to close the door and called for an inspection of the closed door and a seal to be placed thereon, which was used to indicate that an inspection had been made; that Mueller inspected and approved the door as closed and placed the seal, a decal, thereon some time between 3:23 and 3:30; and that this completed claimant’s work on the door and no other work was assigned to him, as his work day was to end at 3:30.

According to Barbeau, called by claimant as his witness, he was at his desk, about 35 to 40 feet from the left wing of plane C-230, when an employee named Lyons told him that claimant was bleeding from the face. From that position he could not see claimant. He immediately proceeded towards claimant, whom he first saw when he rounded the tail of plane C-230. Claimant was standing upright beneath the left wing of plane C-230, in the area where he had been working, with his arms at his side, bleeding heavily from a cut on the right side of his neck. Bar-beau was the first person to reach claimant, and with the help of Clarence Cooper, an inspector who was right behind him, they laid claimant on a work stand located about 12 inches from where he had been standing. Barbeau rolled claimant on his left side and attempted to stanch the flow of blood with first a handkerchief, and when it quickly became saturated, with a pile of cheese cloth. Claimant, according to Barbeau, made no statement and at first had his eyes open and made an attempt to raise up, but then closed his eyes and just laid there. An assistant foreman, George Staton, asked Barbeau if he had the pressure point, and when Barbeau replied in the negative, asked to try to locate it. Barbeau then walked around claimant’s head and in front of him, and upon looking down saw that claimant had a knife clenched in his left hand. There was blood on the knife. Barbeau removed it from claimant’s hand by taking hold of his fingers and prying them open, and laid the knife on the work stand.

The emergency alarm had been sounded and Ethel Wood, the nurse from the first aid room arrived, who also attempted to stop the flow of blood. Barbeau helped place claimant on a stretcher and carry him to the first aid room. He washed his hands and returned to the area where claimant had been working. Barbeau looked at the speed brake, doors L-86 and L-89, and other areas to see if there was any blood on the airplane, and saw none. He was asked whether, when he reached claimant, there was anything in either of claimant’s hands, and answered: “I didn’t notice. I didn’t see anything.”

In addition to the nurse, claimant received the attention of Dr. C. Athraus, who was in the plant at the time. Claimant was conveyed to Deaconess Hospital in St. Louis in an ambulance, and was accompanied by the nurse. It was stipulated that prior to his admission to the hospital 500 cc’s of Dextron was administered to him by the nurse. Dr. Vincent T. Houston, called by the claimant, testified that when he first saw claimant in the hospital’s emergency room claimant was hemorrhaging from the wound on the right side of the neck, from which he was bleeding internally as well as externally. Dr. Houston, a surgeon, described the wound as about 8 centimeters or 25á/ioo inches long, “* * * an incised wound in counterdis-tinction to what I would call a lacerated wound * * * ” with “ * * * clear, sharp borders, not irregular, not torn, and was a straight, sharp bordered incisive thing * * * ” which appeared, in his opinion, to have been “ * * * caused by a sharp instrument like we use in the operating room. * * * ” It was about I1/2 inches in depth and had penetrated through the tissue into claimant’s throat, severing his jugular vein and his posterior facial vein. In order to establish an air passage a tracheostomy was first performed in the operating room, following which the wound was lengthened so that repairs could be made, the veins were ligated, and the wound sutured. While claimant was in the emergency room, in an effort to determine whether any foreign bodies could be in the wound, the doctor asked him how he got hurt. Claimant’s reply was to ask if he was a doctor. The doctor answered that he was, and again inquired of claimant how he had been hurt. Claimant “ * * * shut up, didn’t talk with me.” Dr. Houston also asked claimant if someone had hurt him, but “ * * * He wouldn’t answer.”

Dr. Houston estimated that altogether claimant lost approximately 80% of his circulating blood volume. In addition to the 500 cc’s of Dextron administered by the nurse, 7 units or 3500 cc’s of blood were administered to him in the hospital. Claimant sought to establish that he had sustained brain damage because of such loss of blood but Dr. Houston, on direct examination, while admitting such a result was possible, stated that there are many people who lose that amount without their mental faculties being altered; and on cross-examination testified that he felt confident that claimant had not suffered brain damage as a result of hemorrhaging or as a result of his incident. Dr. Meyer, who did not see claimant after the occurrence until he testified, stated in answer to hypothetical questions as to the effect of trauma, shock, and 80% loss of blood that, “All I have been able to read would indicate anoxia can cause brain damage.” He was not asked, however, whether in his opinion claimant had suffered any damage to his brain. Similar hypothetical questions were propounded to the doctor regarding whether a pre-existing nervous condition would be aggravated, and whether it would be sufficient to “aggravate” the symptoms of memory, change of personality, and depression reaction, to which the doctor replied that any kind of trauma can aggravate a depression and make it worse, and that according to what he had read the occurrences and condition mentioned could aggravate the symptoms mentioned.

Dr. Houston continued to see claimant for several days after August 24, 1964. The day following claimant wouldn’t communicate with him, and claimant’s refusal to talk continued. According to claimant’s wife, during his convalescence he suffered from a lack of memory, would talk but at times the words did not come out right, and he would repeat the same questions. After his wound healed he was transferred to the psychiatric division of the hospital where he was treated by a Dr. William Arney. He remained there until November 20, 1964, when he was discharged, but continued as an out-patient, his medical status at the time of the hearing. Dr. Arney was not called as a witness.

There was a conflict in claimant’s evidence regarding any requirement that a mechanic have a knife as one of the tools he was required to furnish. Claimant testified that a knife was on the employer’s list of tools which: he was required to furnish, and that he used his knife, “ * * for cutting tape or 1-B tape or color coat tape or lines on various jobs, * * *” and for cutting or trimming seals. His witness, Barbeau, testified that a knife was not on the list of tools which a mechanic was required to furnish, and produced copies of the lists for all three grades of mechanics (including claimant’s Grade 1), none of which mentioned a knife. Barbeau did testify, however, that when claimant was under his supervision he was aware of the fact that claimant had a knife, but that the only purpose for which he ever saw claimant use his knife was to clean his finger nails. He was also aware that other mechanics had knives and had seen them use them to cut tape. There was no evidence that tape had been applied to door L-89 on which claimant had been working.

In addition to the testimony elicited from witnesses produced by claimant, the employer called Presley an4 Mueller to the stand. Presley testified that nothing about the work he had assigned to claimant would have required the use of a knife. He had been about 6 planes away from plane C-230 and was on his way back to ascertain whether claimant had completed his work when he learned of the incident. Claimant was lying on the stand when he arrived. After returning from the first aid room where claimant was taken he inspected the speed brake, flap, aileron and other parts to see if there was blood on the plane, but found none, and the only blood he saw was on the floor. He also testified that while all of the screws are not inserted in doors which have to be later reopened for final inspection, and tape is used to cover the empty screw holes, it was never used on doors like L-89 and L-86 which were underneath the plane’s wings. Mueller testified that claimant was near him when he inspected the closed door at approximately 3:23 P.M., but that they didn’t talk to each other, other than that he might have said “O.K.” when he approved the work. Following his check he wet the decal at the wash stand about 135 feet from the rear of the plane, returned and applied the seal, and then walked to the call sheet kept at the rear of the plane where he logged his approval of the door. He then saw people going towards plane C-230 and looked and saw claimant standing “under there” bleeding. He explained that the speed brake and aileron were down and that he could only see claimant up to his shoulders. Claimant’s arms were at his side. Mueller also testified on cross-examination that about six weeks before August 25, 1964, claimant told him that the noise in the plant was bothering him, and that he would have blank spells for a minute and wouldn’t know where he was; and that he was going to a doctor about it. On cross-examination Mueller was asked where claimant’s hands were when he first saw claimant bleeding and answered, “I don’t remember his hands.” He was also asked whether he could remember if there was anything in either of claimant’s hands that he could see, and replied in the negative.

Sergeant Julius Diefenbach and Patrolman James O’Mara of the St. Louis County Police Department also testified on behalf of the employer. In substance, they related that in response to a notice of a serious injury which their office received on August 24, 1964, they went to Deaconess Hospital in the evening of August 26th and sought permission to interrogate claimant. Permission was at first refused by the admitting office, but subsequently was given by a doctor whom the girl in the office telephoned. They related that after explaining to claimant that a routine investigation was being made and that they wanted to find out what had happened to him, they asked him questions but it was difficult for claimant to speak, and he didn’t always answer. Diefenbach then wrote out three questions on a piece of paper and showed them to claimant. The first was, “ * * * Did you cut yourself?” to which claimant wouldn’t answer. The second was, “ * * * Was it an accident?” to which claimant shook his head no. And the third was, “ * * * Did someone else do it?” to which claimant also answered no.

Called by claimant in rebuttal, Rosemary S. Rombach, the registered nurse attending claimant in the hospital when he was interviewed, testified she at first had denied the police officers permission to see claimant because she didn’t think he was in a condition to see them, but granted it when they told her they had permission from Dr. Green. She stated that she heard the police ask claimant whether he had cut himself, whether it was an accident, and whether some one else did it, to all of which questions claimant answered, T don’t know.’ ” She and claimant’s wife were asked by the officers to leave the room, and during her entire examination no question was asked her regarding written questions shown to claimant. On cross-examination she conceded that the “Physicians Orders” part of the hospital record showed an entry on August 26, “Police officers may see pt.” initialed by Dr. Houston, and that earlier that day Dr. Houston had ordered, “Walk A M & P M.”; and that the progress report on the 25th showed that claimant was relatively doing fine, was conscious and could talk a few words. Claimant’s wife, in rebuttal, stated that she had also protested against the interview.

In this court claimant asserts two points in his brief, each of which is divided into several subpoints. Considering them in the inverse order in which they appear, claimant maintains “That the Award of the Referee of the Division of Workmen’s Compensation erred in denying compensation to the claimant, in violation of Section 287.490(1), (3) and (4), because : * * * ” following which four grounds are stated. As to that complaint it is sufficient to state that whatever may have been the grounds upon which the Referee denied claimant’s claim, it is the final award of the Industrial Commission that is reviewed by the courts and not the Award of the Referee. Section 287.490 RSMo 1959, V.A.M.S.; Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136; Manning v. Manor Baking Co., Mo.App., 356 S.W.2d 505; Patane v. Stix, Baer & Fuller, Mo.App., 326 S.W.2d 402. Of course, as this court pointed out in the last cited case, the Referee’s findings of fact and award are a part of the record in the case and will be given due consideration.

The fact of the matter is that the Referee found that the injury claimant had sustained, “ * * * was an intentional self-inflicted injury * * * ” and denied compensation on that ground. But the Industrial Commission, while it affirmed the denial of compensation, did not agree with the Referee’s finding, for in the concluding paragraph of its final award it specifically stated that the Referee’s “ * * * award insofar as it reflects the finding upon which such denial is based is hereby stricken * * However, the precise grounds upon which the Commission based its final award is a matter of dispute between the parties. Claimant, in his first point, contends that the Industrial Commission erred in finding, “That the facts and evidence found do not support the removal of this presumption,” that is, the presumption referred to in Mershon v. Missouri Public Service Corp., supra. That argument, of course, presupposes that the presumption arose. The employer, for his part, argues that the presumption never arose in the first place; that if it did, sufficient substantial evidence to rebut it was offered, whereupon the presumption disappeared; and that upon the whole record the evidence was insufficient to sustain claimant’s burden of proof that he was injured in an accident which arose out of and in the course of his employment. A careful study of the lengthy final award leads us to the conclusion that the Industrial Commission found: (1) that because the claimant was found during his work day with his throat cut, at a place where he had performed his duties, the presumption necessarily arose that he had been injured in an accident which arose out of and in the course of his employment; (2) that the employer produced substantial evidence to rebut the presumption, whereupon it went out of the case; and (3) that the claimant failed to carry his primary burden of proving that his injury was the result of an accident arising out of and in the course of his employment.

We have grave doubts that the presumption arose in this case, and that it must invariably arise in every case, merely because, without any consideration of the surrounding facts and circumstances, a claimant’s evidence shows that during his working hours he was found injured at a place where his duties required him to be. It must be remembered that the burden of proof remains on the claimant throughout the case to show that he was injured in an accident which arose out of and in the course of his employment and such presumptions are merely, “ * * * procedural (placing the burden upon the party denying their truth to produce evidence) * * Duff v. St. Louis Mining & Milling Co., 363 Mo. 944, 255 S.W.2d 792, 793. While the passage previously quoted from Mershon v. Missouri Public Service Corp., supra, read literally is subject to the interpretation placed upon it by the Commission, an analysis of the presumption cases reveals that it has never been so applied. In fact, as the Supreme Court pointed out in Kelley v. Sohio Chemical Co., Mo., 392 S.W.2d 255, 257, “* * * in fact, no Workmen’s Compensation case actually decided on such a presumption is cited, nor have we found any.” We are of the opinion that the presumption may arise but that in determining in the first instance whether it does consideration must be given to all of the relevant evidence which is developed and is binding upon claimant, including such evidence as the character of the work assigned to him, the machinery, tools and appliances employed in the performance of his duties, the manner in which his work is customarily performed, the condition of the prior health of the employee, the nature of his injury, and similar pertinent facts and circumstances. For as this court pointed out in Oswald v. Caradine Hat Co., Mo.App., 109 S.W.2d 893, 895: “ * * * Of course, the nature of the injury, the condition of health of the employee, or the circumstances of the injury, may be such that the presumption does not arise. * * * ” That addendum to the presumption rule was repeated by this court in Stamps v. Century Electric Co., Mo.App., 225 S.W.2d 493, 496, where we again pointed out, “It is true that when an employee charged with the performance of a duty is found injured or dead at a place where his duty required him to be, a presumption may arise that his injury or death was by accident arising out of and in the course of his employment. Mershon v. Missouri Public Service Corporation, Mo.Sup., 221 S.W.2d 165; Oswald v. Caradine Hat Co., Mo.App., 109 S.W.2d 893. Of course it is recognized that the nature and circumstances of the injury or death may be such that the presumption does not arise, as where sufficient relevant facts are known as to bring the inquiry within the realm of actuality.” It would appear that it was this addendum to the rule which the Supreme Court had in mind when it stated, in Kelley v. Sohio Chemical Co., Mo.App., 392 S.W.2d 255, 256: “* * * The existence of such a presumption, under proper circumstances, is also recognized in the following cases: (Citing cases, including our Oswald and Stamps cases.) * * * The cases fairly indicate that if there is evidence of occurrences, circumstances or physical condition which show, directly or by inferences, how the injury occurred, then the matter should be and will be decided on that evidence; * * (Emphasis supplied.)

In any event we are of the opinion that if any presumption arose in the instant case it was completely rebutted by the evidence developed by the employer from the claimant’s witnesses as well as that introduced in its own part of the case, Kelley v. Sohio Chemical Co., supra; that the presumption thereupon went out of the case and the fact of whether claimant’s injury was the result of an accident which arose out of and in the course of his employment was to be determined upon the evidence offered by both parties, Duff v. St. Louis Mining & Milling Co., supra; and that on the whole record claimant’s proof was insufficient to show that his injury resulted from such an accident, Mershon v. Missouri Public Service Corp., supra.

The judgment is affirmed.

PER CURIAM.

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

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


author: BRADY, Commissioner.

text:
    Charlotte W. KOEHLER, Plaintiff-Respondent, v. Lillie Bogg SCHOTT and Bertha K. Mescher Kelley, Defendants, Lillie Bogg Schott, Defendant-Appellant.
    No. 32837.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 21, 1968.

      Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Fred Leicht, Jr., St. Louis, for defendant-appellant.
    Edmund W. Albright, Morie B. Soule, Hoffman & Shostak, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This appeal arises from an action for damages allegedly sustained as the result of a collision between automobiles driven by the co-defendants and the resultant crash of the Schott automobile into the plaintiff’s home. Plaintiff had verdict and judgment against both defendants in the amount of $8,500.00. Mrs. Schott appeals alleging prejudicial error in the giving of plaintiff’s verdict directing instruction. In this regard her position is the instruction was improperly worded. While there is mention in her brief she regards the submission made as unsupported by the evidence, Mrs. Schott has failed to preserve any allegation of error which, if sustained, would require outright reversal of the judgment as to her. Due to the limited nature of her attack upon the instruction and the fact that damages are not an issue in this appeal, the facts may be stated in a less detailed fashion than might otherwise be required.

The collision involving the Schott and Kelley automobiles took place in the general area of the intersection of Lucas & Hunt Road and Eunice Avenue in St. Louis County. The day was cloudy and the streets were dry. Both of these automobiles were proceeding in the same direction on Lucas & Hunt approaching the Eunice Avenue intersection. There is a crest of a hill on Lucas & Hunt Road approximately 450 feet south of the Eunice Avenue intersection. Mrs. Schott was in the lead and had diminished her speed from 30 miles per hour at the crest of this hill so that when she was approximately 50 feet south of the intersection she was traveling at 20 miles per hour. Mrs. Kelley testified she first saw Mrs. Schott’s automobile when it had reached this point. After she noticed the Schott automobile Mrs. Kelley took her eyes from it momentarily and glanced at the speedometer which showed she was traveling 40 miles per hour. The cars proceeded toward the intersection. Mrs. Kelley admitted she was approximately two and a half to three car lengths from the rear of the Schott automobile when she saw its brake lights go on and that she had not slowed her speed prior to that time. Mrs. Schott’s testimony was that she was intending to make a righthand turn onto Eunice Avenue and was doing so at a speed of approximately 10 to 15 miles per hour when her car was struck from the rear by the Kelley automobile. Mrs. Schott’s testimony also was that she did not see the Kelley car behind her at any time; that she was looking forward because she considered the intersection to be dangerous; and that at the time her automobile was struck from the rear the front end was approximately in the center of Eunice Avenue but the rear end was still partially on Lucas & Hunt Road. There is no dispute that after the collision between these two automobiles the Schott automobile went forward across Eunice Avenue, 20 to 24 feet wide at this point, up over a 6 to 8 inch step, across a 6 foot long concrete slab forming the floor of the front porch of the house, and into the front of the house. The distance from the curb of Eunice to the front porch was 25 feet. While damages are not an issue in this appeal it is pertinent to note the Schott automobile struck plaintiff’s house with such force that the house was severely damaged.

The defendants are in dispute as to where the impact took place. Mrs. Schott places the impact right at the south curb line of Eunice while Mrs. Kelley contends the impact took place to the south of that line on Lucas & Hunt. The police officer who investigated the accident testified that when he arrived at the scene the Schott automobile was still partially inside of plaintiff’s house and the Kelley automobile was on Lucas & Hunt Road a little south of the Eunice Avenue south curb line. He further testified the Kelley automobile left visual skid marks some 60 feet in length which started south of Eunice Avenue on Lucas & Hunt.

Plaintiff’s verdict directing instruction reads as follows: “ ‘Your verdict must be for plaintiff and against Defendant Lillie Bogg Schott if you believe: First, defendant either: failed to signal her intention to turn, or slowed her automobile on the highway without first giving an adequate and timely warning of her intention to slow, or failed to have her automobile under such control as to be able to stop upon the first appearance of danger, and Second, defendant Lillie Bogg Schott’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff.’ M. A.I. 17.02 (modified.) Tendered by Plaintiff.”

The difficulty the parties had with this instruction is best illustrated by what took place as counsel argued the case. In his argument plaintiff’s counsel set forth plaintiff’s theory that Mrs. Schott stepped on the accelerator after being hit from behind. His argument was that under this instruction the jury should find Mrs. Schott was negligent for the reason that the “first appearance of danger” was when she was struck from the rear and she should thereafter have stopped her automobile, and that had she had her automobile under such control as the instruction hypothesized she would have been able to have stopped it before running into the front of plaintiff’s house.

Counsel for Mrs. Kelley took a completely opposite view of the same instruction and informed the jury that under the wording of that instruction they were not to consider whether Mrs. Schott could have been able to stop after being hit in the rear by Mrs. Kelley. He stated: “ * * * You are not concerned with that. That is not in this case at all. This is Mr. Cole’s theory, and that is outside the record. That is not submitted to you here insofar as Mrs. Schott is concerned — * * Thereupon Mrs. Schott’s counsel objected on the ground this was indeed the theory submitted by Instruction No. 3 and had been argued by plaintiff’s counsel. The trial court overruled this objection. Later in that same argument Mrs. Kelley’s counsel stated: “ * * * And what is the theory as to Mrs. Schott ? It is not what she could have done in the last thirty feet after she was hit, as was suggested to you; Here it is, and this is the Court’s instruction; this is the law: We are talking about this automobile accident; my client’s car striking the Cadillac. His Honor says, ‘You must find — your verdict must be for plaintiff and against Defendant Lillie Bogg Schott, if you believe, One, that she — Mrs. Schott— * * Thereupon Mrs. Schott’s counsel again objected on the grounds this was not the plaintiff’s theory. The trial court overruled this objection.

Mrs. Schott attacks plaintiff’s verdict directing instruction upon three grounds. The first two of these deal with the wording of the instruction and as will later appear must be sustained. For that reason and also because we have no way of knowing what evidence will be offered upon retrial of this cause it is unnecessary to pass upon her third contention; i. e., the hypothesis she “failed to signal her intention to turn” is unsupported by the evidence.

Mrs. Schott attacks plaintiff’s verdict directing instruction on the ground the submission she “ * * * slowed her automobile on the highway without first giving an adequate and timely warning of her intention to slow, * * * ” is erroneously worded. Plaintiff’s verdict directing instruction was stated to be “M.A.I. 17.02 (modified.)” In the committee’s comment following that instruction in M.A.I. it is stated: “For other acts or omissions which may be hypothesized, see 17.03 to 17.15.” In the Notes on Use following M.A.I. 17.11 it is stated: “This is an optional submission of negligence which may be used * * * as one of the alternate submissions in paragraph First of Verdict Directing 17.02.” What plaintiff has done is in partial compliance therewith as plaintiff went to M.A.I. 17.11 and attempted to incorporate the hypothesis there set forth into 17.02. The fatal flaw in plaintiff’s procedure was in omitting the key word in M.A. I. 17.11. As that instruction appears in M.A.I. it reads: “Defendant suddenly slowed his automobile on the highway without first giving an adequate and timely warning of his intention to slow.” (Emphasis supplied.) The Supreme Court of this State has recently had occasion to comment upon attempts by the Bar to modify appropriate M.A.I. instructions by the deletion of certain words. In Brown v. St. Louis Public Service Company, Mo., 421 S.W.2d 255, the word “direct” was omitted from M.A.I. 4.01, the instruction there involved. This omission was held to change the meaning of the instruction and as such constituted prejudicial error. We hold the same is true as to the omission of the word “suddenly” from M.A.I. 17.11 as plaintiff attempted to incorporate that hypothesis of negligence into M.A.I. 17.02. Any further comment by this court would be superfluous as the Brown case offers a full and complete guide concerning the omission of words found in M.A.I. instructions.

The other attack made upon plaintiff’s verdict directing instruction is equally valid. It requires no citation of authority to substantiate the proposition the hypothesis Mrs. Schott failed to signal her intention to turn is an assignment of specific negligence. The hypothesis she failed to have her automobile under control is an assignment of general negligence. See Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 1. c. 875; State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422 [1]; Coit v. Bentz, Mo., 348 S.W.2d 941. As stated in Gumm v. Herman, Mo.App., 400 S.W.2d 447, 1. c. [1] 451: “* * * It has long been the rule that a case may not be submitted upon both general and specific negligence. State ex rel. Burger v. Trimble, supra, 331 Mo. [748] at 753, 55 S.W.2d [422] at 424(3); Thompson, supra, 277 S.W.2d [527] at 531(5, 6); Ficken v. Hopkins, Mo., 389 S.W.2d 193, 200(14) ; Harris v. Mound City Yellow Cab Co., Mo.App., 367 S.W.2d 43, 51(4); Watson v. Long, Mo.App., 221 S.W.2d 967, 969(1).” Gumm was a case tried prior to the effective date of M.A.I. There is no M.A.I. approved submission on failure or lack of control. Evans v. Landolt, Mo., 389 S.W.2d 15, 1. c. [5] 19. The rule in effect prior to M.A.I. that a case may not be submitted upon both general and specific negligence, Gumm v. Herman, supra, is equally applicable to M.A.I. instructions. Skiles v. Schlake, Mo., 421 S.W.2d 244, 1. c. [4] 247.

Plaintiff, with commendable candor and some understatement, admits “ * * * the instruction in question is not a model.” However, plaintiff contends it was neither confusing and misleading nor prejudicial. We have set out earlier herein what happened during the argument of this case when Mrs. Schott’s counsel was confronted with arguments advancing two separate and distinct theories based upon the same instruction. We can think of few clearer examples of the confusing and misleading nature of an instruction submitting general negligence. Plaintiff’s counsel told the jury during argument that under this instruction they were to focus their attention upon what happened after the collision in determining if Mrs. Schott was negligent. Counsel for Mrs. Kelley informed the jury the instruction did not cover such a matter; that they were “ * * * not concerned with that. That is not in this case at all.” He then proceeded to inform the jury they were to look solely to events leading to the collision itself. Either counsel were confused by this instruction, or they appeared to be so as to permit their respective arguments. Even the trial court illustrated it was not clear as to the theory stated in the instruction by overruling the objections by Mrs. Schott’s counsel and permitting the diametrically opposed arguments.' Under such a state of facts to argue the instruction was not confusing and misleading to the jury is to grant it a degree of technical skill with instructions unexhibited by either counsel or the trial court. This we are not prepared to do. Mrs. Schott’s contention must be sustained.

The judgment must be reversed and the cause remanded to the trial court for new trial upon the issue of Mrs. Schott’s liability only. The verdict as to the co-defendant, Mrs. Kelley, who did not appeal, is to be held in abeyance and entered in conjunction with the resultant judgment on the new trial. Plaintiff is to pay the costs of this appeal.

PER CURIAM:

The judgment is reversed and the cause remanded to the trial court for new trial upon the issue of Mrs. Schott’s liability only. The verdict as to the co-defendant, Mrs. Kelley, who did not appeal, is to be held in abeyance and entered in conjunction with the resultant judgment on the new trial. Plaintiff to pay costs of this appeal.

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


text:
    Jack COLLINS and Winona Collins, Plaintiffs-Respondents, v. John H. STROH, Administrator of the Estate of Devern V. Kisling, Deceased, Defendant-Appellant.
    No. 32747.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 21, 1968.

      Donald F. Flint, Clayton, for defendant-appellant.
    Gray & Sommers, C. Marshall Friedman, St. Louis, for plaintiffs-respondents.
   BRADY, Commissioner.

Plaintiffs, surviving parents of their deceased minor daughter, brought an action to recover for her wrongful death based upon a theory of res ipsa loquitur. The verdict was in favor of plaintiffs in the amount of $15,000.00 and judgment was entered in that amount against the defendant who appeals.

Plaintiffs alleged in the petition: “4. That at the time of the aforesaid plane crash said plane was owned, maintained and controlled by Devern V. Kisling, now deceased, and at the time of said crash was solely and exclusively under the management and control of said Devern V. Kisling.”

This crash occurred sometime in the evening of November 8, 1963. Mrs. Larsen came to the apartment shared by Misses Collins and Holloway at about 6:30 P.M. Also present were Mr. Cooper and Mr. Kis-ling. The parties discussed a proposed flight to Mexico, Missouri in Kisling’s plane to a place he knew of in that city. Cooper did not know of this place. However, during the course of the conversation at the apartment both Cooper and Kisling stated they were going to fly the plane. The girls were hesitant about going but Kisling’s explanation of his flying experience and knowledge was what persuaded them to go. They left the apartment about 7:30 P.M. and took off from the Creve Coeur Airport at 7:45 P.M. The only witness to the takeoff was Daniel Coates who managed that airport and who described the takeoff as normal. He did not see the four occupants get into the plane and did not know how they were seated.

Lawrence B. Sims, Jr., operation inspector for the Federal Aviation Agency, testified that he investigated the crash at the site on November 9th. He found the airplane to be relatively new, airworthy so far as the proper inspections having been made was concerned, and testified the crash occurred at a point where airplanes of all kinds are routed to fly and subject to anyone’s use. The weather was clear and the visibility was approximately seven miles with the result that no instruments would have been required for visibility purposes. Sims could see where the plane crashed by marks in the ground. Parts of the aircraft were scattered over a considerable area, some small pieces being found as far as one hundred fifty feet from the main wreckage. He did not receive any reports nor have any knowledge of any jet aircraft having any involvement in this crash. It was impossible to tell if the controls had been in good operating condition although he found no evidence of control malfunction. Neither did he find any evidence that would lead to the conclusion the crash was due to mechanical failure, structural failure, in-flight distress, turbulence, or being struck by a duck or other flying object. Sims was unable to determine how the four occupants in the plane had been seated.

The aircraft here involved was a four-place low-wing type equipped with dual controls so that it could be flown from either of the two front seats. When one of the controls was moved in one seat it moved in the other seat also.

The plaintiffs lived with their deceased daughter in West Frankfort, Illinois. Both are employed. Their daughter was twenty years old at the time of her death and would have been twenty-one on January 15, 1964. Mrs. Collins described her daughter as a nice-looking girl, tall, neat, who did not drink or smoke to her knowledge, and who had never been in difficulty with the law, in school, or with any of her employers. At the time of her death she had a full time job and was going to night school at Washington University in St. Louis three nights a week. She had previously attended the University of Illinois for a year and a half. She lived at home in West Frankfort during vacations and on weekends during the two years prior to her death. She would be at home on Saturdays and Sundays only, about every two or three weeks or once a month. When she was at home she did all of the housework and helped take care of her fourteen-year-old brother. She did not contribute any of her money to the support of her family. Her parents paid for her schooling.

During the trial defendant objected to testimony concerning plaintiffs’ expectation of receiving services from their daughter when past her legal age. The matter arose in this fashion. Plaintiffs’ counsel was inquiring of Mrs. Collins as to what services her daughter could be expected to perform in the future. Mrs. Collins stated what her daughter had done in the past. The following then occurred: “Q. Can you tell us whether or not it was expected that she would do that in the future? A. Well, she always did when she came home. MR. CRAIG: I object to that unless it is restricted to a period of time. THE COURT: Yes. Sustained. MR. SOMMERS: I agree. Q. (By Mr. Sommers) I mean when she was going to finish her education whether or not she would continue to do that in her recesses from school. That is what I had in mind. MR. CRAIG: I still would raise the objection. It is not limited to her minority, your Honor. THE COURT: Sustained.” (Emphasis supplied.)

When the parties were in chambers discussing with the court instructions and the matters to be covered during argument plaintiffs’ counsel stated he intended to tell the jury “ * * * that they are not limited to any damages that they may have sustained up to the time the girl was twenty-one years of age. * * * MR. CRAIG: I object to him arguing that on the grounds there is no evidence of any damage over the age of twenty-one years by the very proof that was put in in plaintiffs’ case and consequently anything that he would argue as to damages over would be outside of the evidence and purely speculative, conjecture. MR. SOMMERS: The only way you can show damages by loss of services of a minor is by showing past actions and that the child was — that—there was no reason to show an expected change in the future. We have shown the past conduct of the child just as the same was in that case there (indicating).” (Emphasis supplied.) The court overruled the objection and permitted the argument. It is unnecessary to set out the exact words used by plaintiffs’ counsel to press his argument dealing with the award of damages to the plaintiffs for services that might be received from their daughter past her majority. There is no dispute as to what was said nor is there any doubt but that plaintiffs’ counsel did in fact argue that issue. The motion for new trial does contain an allegation of error relating to the argument made by plaintiffs’ counsel. Paragraph 4 of that motion reads: “The Court erred in permitting counsel for plaintiff, over objection of defendant, to argue speculative, conjectural, immaterial and otherwise improper items of damage.”

Plaintiffs’ verdict directing instruction submitted: “First, Devern V. Kisling either controlled or had the right to control the operation of the airplane, * *

There are four allegations of error contained in defendant’s brief which plaintiffs contend are not properly before this court for ruling. In the first of these defendant attacks the giving of plaintiffs’ verdict directing instruction on the ground that it submitted a theory inconsistent with plaintiffs’ pleadings. The inconsistency referred to is that the petition alleged the aircraft involved was “owned, maintained and controlled” by Kisling, defendant’s decedent, and “at the time of said crash was solely and exclusively under the management and control of said Devern V. Kisling” while the instruction allowed the jury to return a verdict for plaintiffs if it found that Kisling “either controlled or had the right to control the operation of the airplane, * * Defendant’s motion for new trial attacks this instruction at Paragraph 5 which is divided into four sub-paragraphs. These sub-paragraphs are completely devoid of language which specifically or by fair implication alleges the instruction was inconsistent with the pleadings. It follows that allegation of error is not preserved for our review. It should be noted the court gave Instruction No. 3 at the request of defendant. That instruction informed the jury their verdict must be for defendant “ * * * unless you believe Devern V. Kisling had the control of the aircraft at the time of the occurrence * * (Emphasis supplied.) So the theory defendant contends should have been submitted to the jury was in fact presented to them albeit not in plaintiffs’ verdict directing instruction.

The court also gave Instruction No. 6 submitted by plaintiffs which authorized the jury to award plaintiffs such sum as they believed would fairly and justly compensate them for the damages “ * * * which you believe plaintiffs sustained and are reasonably certain to sustain in the future, * * Defendant’s brief contains the allegation this instruction was erroneously given. The transcript discloses defendant’s counsel made a general objection at the trial to the giving of plaintiffs’ instructions. The motion for new trial contained nine assignments of error. None of these contains any reference to Instruction No. 6 by number nor by the matter dealt with in that instruction. This allegation of error is not preserved for our review as defendant’s counsel candidly admits in the reply brief.

The third and fourth allegations of error plaintiffs contend defendant has failed to preserve for our ruling deal with the trial court’s action in permitting plaintiffs’ counsel to argue damages that might accrue to plaintiffs beyond their deceased daughter’s majority. Plaintiffs base their argument upon a comparison of the wording of defendant’s objections at the trial, in chambers and in the motion for new trial, with the language used in the brief in stating this assignment of error. It is to be recalled that during the trial when defendant’s counsel objected to questions directed to Mrs. Collins concerning the expectation she and her husband had of receiving services from their daughter beyond her reaching legal age, he stated the grounds for his objection; i. e., “It (the question) is not limited to her minority, your Honor.” The trial court sustained that objection. Plaintiffs’ argument is that such language makes clear defendant’s counsel was basing his objection upon the contention that under the law in this jurisdiction the basis of recovery for the wrongful death of a minor is the value of the child’s services to the parents during the child’s minority. This is the rule in Missouri. Brewer v. Rowe, 363 Mo. 592, 252 S.W.2d 372. However, when counsel were in chambers discussing with the trial court the instructions to be submitted and the argument they intended to make, and defendant’s counsel was informed plaintiffs’ counsel intended to argue the jury could consider damages beyond the deceased’s minority, the only objection voiced was that there was “ * * no evidence * * * ” and that such an argument “ * * * would be outside of the evidence and purely speculative, conjecture.” Lastly, plaintiffs cite the language used in defendant’s brief in stating the allegation of error referring to plaintiffs’ counsel’s argument. In its pertinent parts it reads: “The Court erred in permitting plaintiffs’ counsel over defendant’s objection, to argue damages which might accrue beyond the age of majority of plaintiffs’ decedent, upon the bases that (a) such damages are not recoverable; *

If the defendant has properly preserved for our ruling this contention, then defendant must prevail and the judgment must then be reversed and the cause remanded for new trial upon the issue of damages limited to the minority of the deceased. This for the reason that while the rule has been subject to criticism on the basis of logic as well as on the basis that such a rule seemingly conflicts with what the Missouri Supreme Court has stated t.o be the legislative intent of § 573.-090, supra, the rule remains in force and effect to the present time and we would be compelled to apply it. In any event it would seem clear the basis for such a rule cannot rest, as defendant implied by his objection to plaintiffs’ argument, on the ground proof of damages beyond the deceased’s minority could only be speculative and conjectural in nature. This for the reason, as stated in McCrary v. Ogden, supra; Brewer v. Rowe, supra; and Hartz v. Heimos, supra, the amount of the verdict in an action for the wrongful death of a minor inherently involves some element of speculation or resolving of intangibles on the part of a jury. Moreover, such activity on the part of the jury is usually greater the further away from majority the minor is at his death. In fact, testimony by the parents of an 11-year old boy as to the loss of services or pecuniary loss they suffered between that age and his majority would seem more speculative than that which might be expected when the deceased is slightly over 21. No one can predict with certainty the employment possibilities of a child of 11, as yet too young to have developed any particular talents or aptitudes. See Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327, 1. c. 330, 25 A.L.R. 1508. Yet a verdict for the then statutory limit of $15,000.00 was affirmed for the death of a child of that age in Brewer v. Rowe, supra, and there are other verdicts of the same nature.

Be that as it may, the issue before us is simply to determine if defendant did in fact preserve this allegation of error. Plaintiffs’ position is that defendant’s counsel knew the proper objection to make to plaintiffs’ argument for he had made it during the trial upon the occasion when Mrs. Collins was testifying. But even though defendant had that knowledge he chose not to voice that objection and instead objected that such an argument should not be permitted for the reason there was no evidence to support it and it would be purely speculative and conjectural. In his reply brief defendant urges this allegation of error was properly preserved and refers to the motion for new trial. Even if we were to hold that the allegations in the motion for new trial referring to “immaterial and otherwise improper items of damage” might be so lib.erally read as to be said to encompass a claim that damages beyond the age of majority are not recoverable, it is too well recognized to require citation that such an allegation must be supported by a proper objection. It is in this regard defendant’s argument fails. Earlier in the trial there had been a valid objection made and the trial court had correctly ruled upon the objection. However, there was no request that such an objection or ruling should be taken as running to all later proceedings at the trial and there is no issue presented in this appeal with regard to the objection made and sustained while Mrs. Collins was on the stand. The matter at issue is the propriety of the trial court’s ruling upon the objection to the argument made by plaintiffs’ counsel. That objection was not based upon any contention the argument must as a matter of law be limited to recovery for loss of services during the deceased’s minority but upon the grounds there was no evidence and that such an argument if allowed would be purely speculative and conjectural. Under the state of this record we hold defendant has not properly preserved his contention the trial court erred in overruling his objection to plaintiffs’ counsel’s argument on the ground that such damages are not recoverable in this jurisdiction.

Defendant’s brief assigns another reason in support of its contention the trial court erred in permitting plaintiffs’ counsel’s argument that is not properly preserved for our review. This is: “ * * * (c) such argument was not proper in view of the Court’s having sustained defendant’s objection to the introduction of any evidence directed to damages which might accrue beyond the age of majority.” We cannot so stretch defendant’s objection based on the grounds there was no evidence to support the argument and to allow it would be to permit speculation and conjecture so as to encompass this point. Defendant is attempting to present an allegation of error which it did not properly preserve for our review. Our decision on this issue is in keeping with the decision in Hall v. Clark, Mo., 298 S.W.2d 344, 1. c. [14] 350, where an analogous situation was presented. In any event, defendant’s argument on this issue is that the earlier ruling of the trial court precluded him “ * * * from introducing, by cross-examination or otherwise, any evidence to minimize such damages.” Defendant did not make any request to reopen his case and reintroduce any evidence he might have had in mitigation upon the trial court’s action reversing its previous ruling and stating it would allow plaintiffs’ counsel to argue damages accruing to plaintiffs beyond the time when their deceased daughter reached her majority. He was certainly not prevented from making such request by the trial court’s ruling.

There remain two allegations of prejudicial error for our ruling. These are: (1) The trial court erred in giving plaintiffs’ verdict directing instruction based upon the theory of res ipsa loquitur on the ground that doctrine is not applicable to cases involving dual control private aircraft; and (2) The trial court erred in permitting plaintiffs’ counsel to argue damages which might accrue to plaintiffs beyond the age of majority of their deceased daughter upon the grounds that such damages were not proven.

With regard to defendant’s attack upon the verdict directing instruction, we note § 305.040, R.S.Mo.1959, V.A.M.S., which provides: “The liability of the owner of one aircraft, to the owner of another aircraft, or to aeronauts or passengers on either aircraft, for damage caused by collision on land or in the air shall be determined by the rules of law applicable to torts on land. (R.S.1939 § 15109)” It is clear that while accidents that occur involving aircraft do not necessarily bespeak negligence, the crashing of an aircraft does. It was so held in Cudney v. Midcontinent Airlines, 363 Mo. 922, 254 S.W.2d 662, 1. c. 665, 666, where the court stated: “In Missouri, as elsewhere generally, the doctrine of res ipsa loquitur applies when ‘(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumen-talities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.’ McCloskey v. Koplar, 329 Mo., 527 loc. cit. 533, 46 S.W.2d 557, loc. cit. 559; Prosser, Torts, Sec. 43, p. 295. * * * Res ipsa loquitur is a part of the law of evidence, it is ‘merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case. Presumptions of fact, or those general propositions of experience which form the major premises of particular conclusions of this sort, usually are for the jury. The court ordinarily confines itself to considering whether it can say that there is no such presumption, or, in other words, that such accidents commonly are not due to negligence.’ Holmes, J., in Graham v. Badger, 164 Mass. 42, 47, 41 N.E. 61.” An example of the development of judicial thinking upon the subject can be discerned from a brief examination of two Tennessee cases. In Towle v. Phillips, 180 Tenn. 121, 172 S.W.2d 806, a case decided in 1943, it was said: “ * * * Moreover, we are much impressed by an observation of the Supreme Judicial Court of Massachusetts to the effect that we are not as yet in respect to the care and operation of aircraft in a position where the doctrine of cases dealing with stagecoaches or trolley cars or steam railways can be applied.” However, by 1962 that same court in Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, held the doctrine was applicable to crashes of aircraft, stating at 1. c. 446: “It is true some of the older cases held that res ipsa loquitur did not apply to airplane accidents because they were then of common occurrence without negligence (see Towle v. Phillips, 180 Tenn. 121, 172 S.W.2d 806). But, in the last decade or so, the progress of aviation has been such that it has now become an ordinary mode of transportation and is as safe or even safer than other modes so that now plane accidents do not happen in the ordinary course of things if those who have control use proper care.” However, defendant does not attack the application of the doctrine in the instant case on the basis that the accident does not bespeak negligence nor upon the ground the defendant did not have superior knowledge as to its cause, but confines himself to the contention the absence of control prevents the application of the doctrine in the instant case. In this regard the argument made is that since the airplane had dual controls the inference the passenger was operating the aircraft can be drawn as reasonably as can the inference it was being operated by the owner. There is authority for this position. See Budgett v. Soo Sky Ways, 1936, 64 S.D. 243, 266 N.W. 253; Madyck v. Shelley, 1938, 28 Mich. 396, 278 N.W. 110; Morrison v. LeTourneau Co. of Georgia, Fifth Circuit, 138 F.2d 339; Towle v. Phillips, supra. (See In re Hayden’s Estate, 1953, 174 Kan. 140, 254 P.2d 813, where, although the action was brought upon a theory of specific negligence, the court held that neither the fact the owner was seated in the lefthand [admittedly the pilot’s] seat at take-off, nor that the aircraft there involved could not be taken off or landed from the righthand seat, nor that after the crash the owner was found in the lefthand seat, created a presumption or warranted an inference the owner was at the controls at the time of the crash. See also Parker v. James E. Granger, Inc., 1935, 4 Cal.2d 668, 52 P.2d 226, where a passenger in a dual control aircraft was shown actually to have had control.)

In this jurisdiction considering the provisions of Section 305.040, supra, and the rulings of our courts to the effect that the doctrine of res ipsa loquitur is applicable if the defendant has the right to control (Cruce v. Gulf, M. & O. R. Co., supra; Smith v. Wabash Railroad Company, supra), we think it clear that the mere existence of dual controls does not in and of itself prevent the application of the doctrine of res ipsa loquitur. Kisling owned the plane and was present in it, and he would' be chargeable of the negligence of Cooper even if Cooper had been operating the controls, for he had the “right of control”. There is additional evidence in the instant case which we think illustrates the correctness of the trial court’s ruling upon this issue. The undisputed evidence was that Cooper did not know of the place where they were going but Kisling did. Moreover, it was Kisling’s explanation of his background as a pilot, his skill and experience, that persuaded Misses Collins and Holloway to make the trip. Until he so persuaded them they were not going to accompany the men even though Cooper had identified himself as a licensed pilot. We therefore rule the doctrine of res ipsa loquitur applicable and this case was properly submitted to the jury under this theory. Defendant’s contention with regard to the giving of Instruction No. 2 is without merit.

Defendant’s contention with regard to plaintiffs’ counsel’s argument containing items of damages that were not proven arises from an improper understanding of the required quality of such evidence. As we earlier pointed out herein there is some element of speculation or resolving of intangibles inherently involved when a jury seeks to determine the damages that might be awarded surviving parents up to the age of their deceased child’s majority. In such cases the award of damages can rest only on considerations of the most general character and much must be left to the common sense of the jury. Hornbuckle v. McCarty, supra, as quoted in the separate concurring opinion of Dalton, J., in Brewer v. Rowe, supra. In that same opinion it is said: “ * * * the jury’s award must be based, not upon direct, positive evidence, but upon probabilities which the jury might reasonably find exist, considering the child’s age, condition, health, mentality, personality and perspective, and the parents’ ages, attitude and circumstances.” To the same effect on this issue see Richeson v. Hunziker, Mo., 349 S.W.2d 50, a case brought by an administrator for wrongful death of a 23-year old son. Therein the following quotation from Domijan v. Harp, Mo., 340 S.W.2d 728, 1. c. 734, is quoted with approval: “ ‘The test of the right of recovery under our death statutes is the reasonable probability of pecuniary benefit from the continued life of the deceased, or a pecuniary injury from the death, — and not that of strict legal dependency. [Citing cases.]’ ” We cannot agree that damages were not proven in such manner as to justify an inference of decedent’s probable willingness and ability to continue in the future the services she had rendered and was rendering to the plaintiffs at the time of her death. The evidence given was actually all that could be given under the circumstances here involved. It is the same evidence that has again and again been held sufficient to allow the jury to infer that such activity on the part of the deceased minor would continue up to the age of majority in cases involving recovery up to such age. Shepard v. Harris, Mo., 329 S.W.2d 1, and cases therein cited at [33]. We see no reason such proof would be held insufficient to allow the jury to infer such activity would continue past majority in cases where parents seek recovery for damages occurring both prior to and beyond the age of majority of their deceased child. In short, it is the imposition of a rule of law that prevents the jury from drawing the inference the child’s services would continue past that age. The basis for such a rule has been questioned, McCrary v. Ogden, supra, and never clearly stated, but it is clear the rule does not rest upon any doubts as to the nature of the proof to be offered in such a case. The question of whether this rule of law should be applied in the instant case is one defendant has failed to preserve for our review. We therefore rule this allegation of error against the defendant.

The judgment is affirmed. Defendant is to pay the costs of this appeal.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is affirmed. Defendant to pay costs of this appeal.

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

      . The case was pled, tried and submitted upon the res ipsa loquitur doctrine. This was clearly understood by all the parties. “Exclusive control” embodies “right to control”. Smith v. Wabash Railroad Company, Mo., 416 S.W.2d 85, 1.c. [4] 88. The doctrine of res ipsa loquitur is applicable if defendant had either. Cruce v. Gulf, M. & O. R. Co., 361 Mo. 1138, 238 S.W.2d 674 [1].

      . The issue of mitigating or aggravating circumstances is not here involved.

      . In McCrary v. Ogden, Mo., 267 S.W.2d 670, l.c. 676 [12], it was stated: “(Whether our past interpretations of the section [§ 573.090, R.S.Mo.1949], to the effect that recovery is limited to pecuniary loss and in the case of an infant, to the value of services during minority only, are basically correct, may be debatable — but we have consistently so construed the section.)” In the comment following MAI 5.03 it is said: “The committee doubts that the Supreme Court intends to so limit the recovery of a widowed mother whose only son and sole support was killed a week before bis 21st birthday.” The difference between that situation and the one at bar is essentially one of evidence; a difference of degree and not of principle.

      .“Apparently, the legislative intent as expressed in Section 537.090 ‘is to give the jury a broad discretion in computing damages in actions 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, will be sustained by those entitled to recover * * *.’ ” Hartz v. Heimos, Mo., 352 S.W.2d 596, l.c. 604.

      . It should be noted the court’s perusal of such verdicts usually arises from an allegation the verdict is excessive. While defendant’s motion for new trial in the instant case contained such an allegation, his brief does not and it is therefore not for our consideration.


author: CLEMENS, Commissioner.

text:
    STATE of Missouri ex rel. Mary Ann WOODS, Relator, v. Honorable Robert J. KIRKWOOD, Judge of the Circuit Court of the City of St. Louis, Division No. 1, Respondent.
    No. 32922.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Motion for Rehearing or Transfer to Supreme Court Denied March 21, 1968.

      George T. Williams and Cyril J. Clancy, Clayton, for relator.
    W. W. Sleater, St. Louis, for respondent.
   CLEMENS, Commissioner.

This original proceeding in prohibition brings up this question: Is a defendant who has been sued for property damages to plaintiff’s automobile entitled to inspect the plaintiff’s automobile insurance policy to find out whether it is the plaintiff or her insurer who is the real party in interest? We thought not when the plaintiff-relator filed her petition here and we granted our preliminary writ to prohibit the respondent judge from forcing her to produce the policy for defendant’s inspection. Now the issue has been briefed, argued and considered, and we hold to our original decision.

The background: Plaintiff-relator Mary Ann Woods sued defendant Wesley Rogers for $400 damages to her automobile. Defendant Rogers, suspecting Miss Woods might not be the real party in interest, filed interrogatories delving into her financial interest in the case. To Interrogatory No. 57 Miss Woods answered that her insurer, State Farm Mutual Automobile Insurance Company, had paid the $337.86 repair bill “less $50.00 deductible.” Answering Interrogatory No. 58-A about what papers she had signed regarding her loss, Miss Woods attached a copy of an itemized repair bill showing she had authorized her insurer to pay the bill directly to the repair shop. Interrogatory No. 58-B asked, “Have you made an assignment of your claim for damages?” Miss Woods answered no.

Apparently dissatisfied with all this, defendant Rogers then moved for an order to inspect Miss Wood’s policy. The respondent judge granted the order, but before its effective date plaintiff-relator Woods applied for — and we granted — a preliminary writ of prohibition. By the respondent judge’s return to the writ he justified his jurisdiction to order Miss Woods to produce her policy for defendant’s inspection on the ground it would lead to discovery of evidence about whether Miss Woods or her insurer was the real party in interest. He relied on Steele v. Goosen, Mo., 329 S.W.2d 703 [11], and Ewing v. Pugh, Mo.App., 420 S.W.2d 14 [3]. Those cases hold that where an insured, upon payment of loss by his insurer, executes an assignment of his cause of action to his insurer, the insured is no longer the real party in interest. Replying to the judge’s return, the relator said that by her answers to defendant’s interrogatories she had already denied executing an assignment, and that producing her policy would show the limits of liability insurance coverage; that compelling her to do so would be contrary to the prohibition case of State ex rel. Bush v. Elliott, Mo. (banc), 363 S.W.2d 631.

In the Elliott case the plaintiff’s interrogatories asked for the name of defendant’s insurance carrier and a copy of the policy. The defendant conceded plaintiff’s right to the name of his insurer but objected to producing the policy because that would disclose the limits of liability. The Supreme Court granted prohibition on the ground that compelling the defendant to produce the policy would disclose other information having no bearing on the merits of the case. (363 S.W.2d 1. c. 634 [4].)

That is also true here. The essential question about the real party in interest is whether the plaintiff has assigned her cause of action to her insurer. (See Hayes v. Jenkins, Mo.App., 337 S.W.2d 259 [2-6], and Bauer v. Holtkamp, Mo.App., 389 S.W.2d 850 [1].) By answers to previous interrogatories she swore she had not. Sub-rogation provisions of plaintiff’s insurance policy would bear only indirectly, if at all, on the fact of assignment. The respondent judge, in order to give the defendant access to that incidental information, would compel disclosure of the entire policy. Under the Elliott case, supra, that exceeds his jurisdiction. It follows that our preliminary rule should be made absolute.

This opinion should not be interpreted as denying the defendant all information about the plaintiff’s insurance policy under all circumstances. If he can show good cause for belief that the policy does contain provisions bearing directly on the question of the real party in interest, the trial court would be justified in ordering production for inspection under a protective order limiting inspection to relevant parts of the policy. (Civil Rules 58.01, 57.01(c), V.A.M.R.; and compare Julius Hyman & Co. v. American Motorists Ins. Co., USDC, Colo., 17 Federal Rules Decisions 386.)

Costs herein are taxed against Wesley Rogers, defendant in the trial court who initiated the discovery proceeding there but who failed here to sustain the trial court’s ruling. Section 530.070, V.A.M.S.; State ex rel. Burtrum v. Smith, 357 Mo. 134 (banc), 206 S.W.2d 558 [7-9].

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the preliminary rule in prohibition is made absolute. Costs are taxed against Wesley Rogers in the case styled Mary Ann Woods, Plaintiff, v. Wesley Rogers, Defendant, No. 77243-E, pending in the Circuit Court of the City of St. Louis, Missouri.

ANDERSON, P. J., WOLFE, J., and GEORGE W. CLOYD, Special Judge, concur.