author: RUDDY, Presiding Judge.

text:
    Patricia Ann ROBIDOUX, a Minor, by Melvin M. Robidoux, Her Guardian and Father, (Plaintiff) Respondent, v. August A. BUSCH, (Respondent) Appellant.
    No. 31736.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.
    Rehearing Denied March 17, 1966.

      Jenny & Cole, James A. Cole and Lawrence O. Davis, Union, for appellant.
    Bruce Nangle, St. Louis, for respondent.
   RUDDY, Presiding Judge.

Plaintiff, an eight year old girl, brought this action by and through her father against Anheuser-Busch, Inc., a corporation, and August A. Busch, an individual, to recover damages for injuries sustained when she was run over by the wheel of a wagon pulled by six miniature mules while she was on a sightseeing tour through Grants Farm, a well known showplace in St. Louis County, owned by defendant, August A. Busch. A motion for directed verdict filed at the close of plaintiff’s case by Anheuser-Busch, Inc., a corporation, was sustained. Defendant, August A. Busch, appeals from a judgment against him in the amount of $8000. We shall refer to the parties in this appeal as plaintiff and defendant.

Among the many points relied on by defendant is one wherein he contends that the trial court erred in overruling his motion for a directed verdict at the close of the whole case because the competent evidence was insufficient to support a verdict against said defendant. We think this contention of defendant should be sustained. Therefore, it will be unnecessary to consider the other points relied on by the defendant.

In determining whether the trial court erred in failing to sustain the defendant’s motion for a directed verdict, we will state the facts and circumstances favorable to plaintiff as shown by the evidence and give to plaintiff the benefit of all reasonable inferences which may be fairly drawn therefrom. We shall disregard defendant’s evidence, unless it aids the plaintiff’s case. Price v. Nicholson, Mo., 340 S.W.2d 1, 4, 5; Johnson v. Missouri-Kansas-Texas Railroad Company, Mo., 334 S.W.2d 41, 42; Thaller v. Skinner & Kennedy Company, Mo., 315 S.W.2d 124.

In reviewing this contention that plaintiff failed to make a submissible case, we confine ourselves to the issues submitted in plaintiff’s Instruction No. 1, which we will set out later, and determine whether the evidence offered was sufficient to make a submissible case under the theory of liability submitted. Thaller v. Skinner & Kennedy Company, supra; Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, l. c. 95.

Defendant admitted that he was the owner of the property known as Grants Farm. While defendant seems to assert that the evidence is insufficient to show that he is the operator of the amusement and show facilities conducted on said Farm, we will, for the purpose of our discussion in connection with the contention raised by defendant, assume that he operated the facilities and that all of the employees thereon and referred to in the evidence were under his supervision and control.

Grants Farm consists of a zoo wherein is displayed various animals, some of which by nature are designated as wild and some of which are designated as naturally tame. In addition, there seems to have been a park area and a carriage house where types of carriages and transportation vehicles of ancient vintage and of another age were on display. Among the animals displayed, with which we are concerned in this case, were two elephants and six miniature mules. The mules were attached and hitched to a small wagon or cart which was silver in color and had wheels which were described as having small spokes and instead of rubber tires, had a steel band around the outside of each wheel between three and four inches in width. Plaintiff’s evidence showed that these mules did not wear blinders which would serve the purpose of reducing the area visible to the mules.

On June 30, 1960, at approximately 1 P.M., the plaintiff, no doubt in a state of high expectancy and joy, which was later to be changed by misfortune, in the company of a relative and some twenty other persons of the Kempt Drive Improvement Association visited Grants Farm. Prior to this date the secretary of the improvement association had procured permission for the group to attend and visit Grants Farm. The evidence does not show with whom the secretary made these reservations or obtained this permission but does show that an entrance permit was necessary for an escorted tour around the grounds. There was no admission charge made. Approximately 200 people were in attendance that day, most of whom were children, and it appears upon reaching Grants Farm that the group plaintiff was with was escorted to a miniature train, on which they were taken for a ride through the park to an animal display. After viewing the animals, the group was then taken to the carriage house and from the carriage house they were escorted into a sort of courtyard in which there was a concession stand. It seems that the plaintiff had some refreshments at this stand for which no charge was made. When the group got off of the miniature train and was in line preparatory to entering the coach house where the coaches were on display, the miniature mules, heretofore described, hitched to the wagon, were standing in the courtyard. These miniature mules were variously described by the witnesses as horses, little horses, and donkeys. One of the ladies in plaintiff’s group said that while she was waiting to get into the coach house saliva was coming from the mouth of the “front horse.” It appears that the day was very hot. After the group went through the coach house and had refreshments and came out into the courtyard, someone in the group suggested taking a picture of the children. The children were placed alongside of the little wagon, heretofore described, in order to have the picture taken. Shortly after the picture was taken by a member of the improvement association group, the elephant trainer, an employee at Grants Farm, brought two elephants into the courtyard from the stable through a doorway in front of the mules and wagon, the larger of the elephants being six to seven feet tall. This doorway to the stable was S or 6 feet in front of the mules and, therefore, the elephants passed no more than 5 or 6 feet in front of them when they were standing in the courtyard. One of plaintiffs witnesses testified that the elephants were snorting and making noises and throwing up their trunks as they came out. Various descriptions were given by plaintiff’s witnesses as to what happened thereafter. However, the substance of their testimony is that the miniature mules bolted and ran and in doing so one of the mules stepped on plaintiff and one wheel of the wagon passed over plaintiff’s leg inflicting a substantial injury.

The courtyard where the incident took place was described as being large and the size of the crowd of people, as heretofore stated, was about 200 in number. Most of them were children. Some of the people were in the coach house, some were at the concession stand and others were at various places in the courtyard. As one witness said, “everyone was scattered all around.” Plaintiff was encouraged by the relative who had accompanied her to have her picture taken with the improvement association group. This relative of plaintiff testified that the crowd was very orderly.

Edgar J. Miller testified in plaintiff’s case as an expert in the care and handling of horses. He was 31 years of age and at the time of his testimony he had been employed at the Daniel Auto Sales. It is unnecessary to detail his testimony in connection with his experience and background in the care and handling of horses, except to point out that he admitted he had never “examined, trained, raised, bought, owned or sold miniature mules,” but did say that he had experience with other mules. When asked his opinion about the temperament of a mule, a miniature mule or horse, he answered: “Generally speaking, they are similar in nature. Some are more docile than others because of care, but I think a mule has a reputation of being more docile than a horse, but at the same time more stubborn. But generally speaking their natures or excitabilities are the same.” He said he would not approach the care and handling of a horse in any different way than he would a mule but would handle and care for both animals in the same way.

In a hypothetical question propounded to him in which he was asked to assume some of the circumstances surrounding the miniature mules at the time they bolted, he was asked to further assume, “that while stopped and posed elephants suddenly appeared making noises and coming very near to the place where the animals were standing, and assume further that there were noises made from the large crowd, and assume further that these horses bolted and ran forward, pulling the wagon, * * *. Can you state in your opinion under the circumstances of your experience whether such horses would be prone to be highly nervous, excitable, and have a propensity to bolt, and further whether a person experienced in handling horses and teams of horses and maintaining such horses should and could have known such condition of the animals?” He answered, “With all these circumstances that are cited, one should know or expect the animals to react in an unpredictable manner, and any one of these circumstances or the combination of several or all would cause something like this to happen, or even other combinations or other circumstances. * * * Q. From your experience in handling horses individually or in teams, is the nature of horses such that they are excitable and with propensities to act unpredictably ? * * * A. Well, they have a propensity to act unpredictably only insofar as there are unusual circumstances. Any change of a common flow of noise or actions — they would have a propensity to act unpredictably when there are strange or new circumstances or sounds around them.” He was then asked if the sudden bellowing of elephants could be such a circumstance and he answered, “Yes, it is possible(Emphases ours.) In his cross-examination he admitted that animals become used to some things when they do them frequently. He further admitted that you could train horses to get along with elephants and that you could train horses to stand still in the company of elephants. He admitted that “a horse can get to the place that he is used to the bellowing of an elephant.”

We relate some of the testimony given by defendant’s witnesses because we feel it pertinent to a discussion of the contention under review. Two of the witnesses, employees of defendant, were tour guides who conducted the visitors around in the miniature train. Both had seen the elephants and the mules together in the courtyard many times when they were in visual contact with each other. Neither had ever seen the mules shy, bolt or run away at any time upon seeing the elephants. The elephant trainer testified that on the 30th day of June, 1960, there were two elephants, the oldest one named Tessie he had 13 years and was about 6 feet 10 inches in height at the time of the accident. The smallest and youngest elephant was named Peggy. He was acquainted with the miniature mules at Grants Farm, having been there when they were born. He said he had exhibited the elephants in the courtyard with the miniature mules many times and on many occasions prior to the 30th day of June, 1960. When he brought the elephants into the courtyard on the day of the incident, he was walking alongside of them and said the children would shout and yell when he brought the elephants into the courtyard. He did not see the accident take place.

The handler and driver of the miniature mules on the day the incident took place testified that it was a part of his job to drive these miniature mules. He had helped to train the miniature mules and harnessed them on the day in question and put blinders on them. He parked the wagon with the mules in the courtyard and had set the brake, which is a foot brake, and was sitting on the wagon with the reins in his hands, with the mules standing still. He said he had done this on many prior occasions and had the mules in the courtyard on occasions prior to the 30th day of June, 1960, when the elephants were in there and the mules never did bolt or run off before. He said he had not noticed the elephants until the mules suddenly started running with the wagon and brought them to a stop within about 40 or 50 feet. He did not see the plaintiff hit. He did not hear the elephants snort and he did not know why the miniature mules bolted and ran off. He did not remember whether he had warned any of the people not to get too close to the mules and said that the mules could easily pull the wagon with the brakes on. He said he was the only one who handles the mules and that he would describe their condition on that day as normal and that they were not particularly restless. He said that there was no more noise than usual on that particular day and that it was “just an average day.”

Missouri decisions classify persons who enter upon land in the possession of another as trespassers, licensees, and invitees. Richey v. Kemper, Mo., 392 S.W.2d 266, 268. Plaintiff in her brief assumes, without any demonstration or explanation, that she was an invitee. However, her evidence fails to support this legal status. In the case of Richey v. Kemper, supra, the court said: “‘[T]he real test of the status of invitee (to whom the owner has the duty to take ordinary care to prevent his injury) is the purpose of his visit. * * * One cannot be declared the invitee of the person sought to be held liable, for failure to exercise due care to prevent his injury, unless he was there for some purpose of real benefit or interest to such person.’” (392 S.W.2d l. c. 268.) Also, see Gruhalla v. George Moeller Construction Co., Mo.App., 391 S.W.2d 585. There is no evidence in the record before us to show that plaintiff’s visit was of real benefit or interest to defendant and we are not permitted to speculate or guess in this area. Plaintiff has the burden of showing that her presence on the premises would result in some real benefit or interest to the defendant. Gruhalla v. George Moeller Construction Company, supra.

In the case of Richey v. Kemper, supra, the circumstances of plaintiff’s visit to the premises were somewhat similar to the circumstances present in the instant case. In that case plaintiff was declared to be a licensee. In such a legal relationship the owner of land is liable only for “wanton or wilfull” acts or “active negligence.” Richey v. Kemper, supra, l. c. 268. Gruhalla v. George Moeller Construction Co., supra.

However, it is certain that plaintiff was not a trespasser and, therefore, under the circumstances which caused her injuries it makes no difference whether she was an invitee or licensee because of the affirmative or active nature of the act charged and if the act causing plaintiff’s injury was due to the active negligence of defendant he would be liable to plaintiff, though she was a mere licensee. White v. Burkeybile, Mo., 386 S.W.2d 418.

The only theory of liability submitted to the jury by plaintiff was contained in her Instruction No. 1, the pertinent part of which reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that on or about the 30th day of June, 1960, plaintiff entered onto Grants Farm at the invitation of August A. Busch, Jr.; and if you further find that elephants passing within approximately five feet of the mules mentioned in the evidence, while the elephants were snorting and throwing their trunks and while children present in the crowd of people were yelling, was such an unusual noise and commotion that in the exercise of ordinary care the defendant knew or should have known that it could be reasonably anticipated that said mules would be excited and would bolt and run; and if you further find by the exercise of ordinary care defendant could have reasonably anticipated that said bolting and running of said mules would cause the plaintiff to be injured; you are then instructed that it was the duty of the defendant to warn plaintiff of such danger and defendant’s failure to so warn the plaintiff was negligence as defined in these instructions. * * (Emphasis ours.)

We omit the second paragraph of plaintiff’s instruction because it merely instructed the jury that if it found the aforesaid facts to be true and “further find that defendant failed to exercise ordinary care in warning the plaintiff as above mentioned” then it was told to find in favor of plaintiff if it found that plaintiff was injured as a direct result of the negligence of defendant.

Concisely stated, plaintiff’s theory of recovery seems to be that the snorting and action of the elephants and noise of the crowd created an unusual noise and commotion and because of this defendant could and should have known and anticipated that the mules would be excited and would bolt and run, and possessed of this knowlege and duty to reasonably anticipate that the mules would get excited and would bolt and run, defendant had a duty to warn plaintiff of this danger. We have some difficulty in recognizing the theory of law under which plaintiff predicates her right to recovery. In this case the injury to plaintiff resulted, not from the action and the noise of the elephants and the noise of people, but from the action of the mules when they bolted and ran away. Under the cases, which we shall cite later, defendant is only liable when scienter is established on the part of the owner and keeper of a domestic animal of its vicious or mischievous tendencies or its tendency to run away or of a tendency through its actions to injure persons.

However, assuming, without so holding, that plaintiff has submitted a theory in her Instruction No. 1 under which she can legally recover, her evidence fails to support the necessary finding that the snorting and action of the elephants and noise of the crowd on June 30, 1960, were unusual. Not one bit of evidence was produced by the plaintiff to show that on prior occasions the elephants did not snort and throw up their trunks and that the noises of the crowds were any different in volume or otherwise than the circumstances in connection with these matters that took place on June 30, 1960. There was no evidence from which a jury could make a finding that the “noise and commotion” on that day was “unusual.” The only evidence concerning these matters as to prior occasions showed that what happened June 30, 1960, was not unusual but was usual and, as one witness put it, there was no more noise than usual on that particular day and that it was “just an average day.”

Further, the gist of the testimony of plaintiff’s alleged expert witness (we question the propriety and need of this type of testimony in this case) is that horses and mules have a propensity to act unpredictably when there are unusual or new circumstances or sounds around them to which they are not accustomed. He admitted that you could train horses and mules to get along with elephants and that you could train them to stand still in the company of elephants. He further admitted that they can get used to the bellowing of an elephant. As we have pointed out, there was not one bit of testimony to show that these circumstances on this particular day were unusual or that they were strange or new. The only evidence in this regard shows that there was no more noise than usual; that it was “just an average day”; that the elephants and the mules had been in visual contact with each other many times before; that the elephants and the miniature mules had been exhibited together in the courtyard many times and on many occasions prior to June 30, 1960, and that the mules never had been seen or known to shy, bolt or run away.

Plaintiff has failed to cite in support of her contention, a single case that involved a situation where a domestic animal such as a horse, mule or donkey bolted and ran away.

That the mule is a domestic animal is beyond argument. The distinction between the liability of the owner of domestic animals which are naturally tame, such as horses, mules, cattle, goats, sheep, dogs and the like, and the owner or keeper of animals that are naturally wild and savage is well understood and needs little discussion. In respect to the wild and savage beast the owner is generally presumed to have notice that they are vicious and possessed of dangerous characteristics and, therefore, a different theory of liability is imposed if someone is injured by a wild animal. However, in the case of a domestic animal, there is no such presumption and its owner or keeper is liable for its actions only in case it was in fact vicious, mischievous or possessed of a tendency through its actions to injure persons and the owner or keeper had knowledge, either actual or constructive, of these tendencies and inclinations.

The early case of Bell v. Leslie, 24 Mo. App. 661, was an action to recover damages for injuries to plaintiff’s race horse which were sustained when defendant’s race horse ran away. The court said at 1. c. 668:

“If the mare was unsafe and dangerous for such purposes it was by reason of a vicious disposition peculiar to herself. The burden of proving such vicious disposition and the knowledge thereof by the defendant rested upon the plaintiff.
“Did the mare have a disposition to run away? As we have said, it devolved upon the plaintiff to prove such disposition. The only evidence introduced by the plaintiff touching the mare’s disposition was the testimony of the plaintiff that the mare was ‘unruly.’ * * * It devolved upon the plaintiff to prove that the mare was ‘unruly’ in that she was disposed to run away, because the accident was caused by the mare running away. * * * ”

The court in discussing the applicable rule concerning injuries caused by domestic animals, said:

“The language used by the court in Spring Co. v. Edgar (99 U.S. 645, 25 L. Ed. 487 supra) applies with peculiar appropriateness to the facts of this case. The court said: ‘Domestic animals, such as oxen or horses, may injure the person or property of another, but courts of justice invariably hold that if they are rightfully in the place where the injury is inflicted, the owner of the animal is not liable for such an injury, unless he knew that the animal was accustomed to be vicious; and in suits for such injuries such knowledge must be alleged and proved, as the cause of action arises for the keeping of the animal after the knowledge of its vicious propensity.’ ”

In the case of Bell v. Leslie, supra, the court held there was absolutely no evidence tending to show that the defendant knew that his mare had run away before or was predisposed to do so.

In a recent case (1961) decided by the Supreme Court, Humes v. Salerno, Mo., 351 S.W.2d 749, the plaintiff brought suit for injuries sustained by him when he was bitten by defendant’s horse while he was exercising the horse for the defendant. The Supreme Court, after reviewing the evidence and pointing out that “[r]ace horses are spirited and temperamental, even unpredictable, stallions more so than mares and geldings,” then said (351 S.W.2d l. c. 751):

“It is not necessary at this point to search out other evidence, in these circumstances, as the jury could and did find them, Sal’s Son was a vicious horse (Merritt v. Matchett, 135 Mo.App. 176, 115 S.W. 1066; Maxwell v. Fraze, Mo.App., 344 S.W.2d 262), and the only question is whether there is also evidence from which the jury could reasonably draw the inference that Dr. Salerno had actual or constructive knowledge of the fact. State ex rel. Kroger Co. v. Craig, Mo.App., 329 S.W.2d 804, 809; Clark v. Missouri, K. & T. Ry. Co., 179 Mo. 66, 77 S.W. 882; Alexander v. Crochett, 233 Mo.App. 674, 124 S.W.2d 534. In addition to these cases, other cases and the general rules are set forth and collected in Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, 13 A.L.R. 485; Rolleg v. Lofton, Mo.App., 230 S.W. 330; 3 C.J.S. Animals § 148, p. 1248; 2 Am.Jur. Animals, Sec. 48, p. 728 and the annotations 15 A.L.R.2d 1313, 17 A.L.R.2d 459.”

After further examining the evidence the court said (351 S.W.2d 1. c. 752):

“In all these circumstances the jury could reasonably draw the inference of knowledge of the horse’s vicious propensities on the part of the doctor. Merritt v. Matchett, supra. * * * ‘It is not essential to the owner’s liability that he should have notice of the particular sort of act which produces the injury by an animal in a case like this. He must not wait until his dog bites somebody before taking notice of his dog’s conduct, where it has been such as to warn a man of ordinary prudence that the animal is ferocious or vicious in disposition.’ O’Neill v. Blase, 94 Mo.App. 648, 667, 68 S.W. 764, 770.”

The rule recognized in personal injury actions occasioned by dogs is that “ ‘the gist of the action is the keeping of a vicious dog after knowledge of his vicious propensities.’ ” State ex rel. Kroger v. Craig, Mo.App., 329 S.W.2d 804, l. c. 809.

And we add that the rule applies to domestic animals of all kinds that have a tendency to run away or through their actions to injure other persons. This rule of liability was expressed by Moses, as pointed out in some of our Missouri decisions, and may be found in Exodus Chap. 21:28, 29, 30.

As we have pointed out heretofore, we have some difficulty in recognizing the theory under which plaintiff predicates a right to recovery. However, it is clear from the decisions of this state that there can be no recovery for the injuries inflicted by the mules in the instant case until plaintiff produces proof that the owner of said mules knew, either actually or constructively, of a habit or tendency of the mules to run away. As we have pointed out, there is no such proof in the record in this case, as well as no proof to show that the circumstances facing the mules on June 30, 1960, were unusual.

Plaintiff sustained a fairly substantial injury in this case. However, a judgment cannot be sustained on sympathy and sentimentality and inasmuch as the record evidence in this case shows that plaintiff failed to make a submissible case for the jury, we are compelled to reverse the judgment. It is so ordered.

ANDERSON, J., and FRANK D. CON-NETT, Jr., Special Judge, concur.


source: Caselaw Access Project

author: WOLFE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. PREMIER PANELS, INCOPORATED, Relator, v. Honorable J. O. SWINK, Judge of the Circuit Court of Perry County, Respondent.
    No. 31885.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.
    Rehearing Denied March 17, 1966.

      Martin Schiff, Jr., Carroll J. Donohue, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for relator.
    Leo J. Rozier, Perryville, Heneghan, Roberts & Cole and George E. Heneghan, St. Louis, for respondent.
   WOLFE, Presiding Judge.

This is an original proceeding in prohibition. The relator is the defendant in an action before the respondent judge. That action was brought by Keasbey and Matti-son Co., a corporation, on an account amounting to $13,929.04 for merchandise alleged to have been sold and delivered to the defendant. The defendant filed a counterclaim alleging that the plaintiff delivered merchandise unfit for the purpose for which it was to be used. It alleged that this was a breach of a warranty that the merchandise could be used for the purpose for which it was purchased. The defendant asked for damages amounting to $50,-000.

This proceeding is brought to prohibit the respondent judge from compelling the defendant to answer certain interrogatories that were filed and directed to the defendant, relator. The petition for prohibition filed here seeks the writ upon two grounds. One ground is that the defendant is entitled to a judgment -on his counterclaim because the plaintiff failed to file an answer to it in the time prescribed by Missouri Rules of Civil Procedure and that therefore there was nothing about which it should be interrogated. The other reason asserted for the prohibition sought is that the interrogatories propounded go beyond the scope of discovery covered by Civil Rules 56.01 and 57.01, V.A.M.R.

The first point as to the state of the pleadings is predicated upon facts which are as follow: On May 3, 1963, the defendant filed its answer and counterclaim; on May 27, 1963, plaintiff filed a motion to dismiss the counterclaim; on June 5, 1963, the defendant filed an amended counterclaim— this was also attacked by a motion to dismiss; and on October 7, 1963, that motion was overruled and the plaintiff was granted thirty days in which to plead. On November 12, 1963, the plaintiff filed a motion for more definite statements of the facts alleged in defendant’s amended counterclaim.

On January 23, 1964, the plaintiff filed the interrogatories here under consideration. Two days thereafter the defendant filed a motion for a judgment on the pleadings as to the counterclaim and a motion to strike the interrogatories or for a protective order. On January 28 the respondent judge made an order “nunc pro tunc” granting the plaintiff as of November 1, 1963, ten days additional time in which to plead. On February 13, 1964, the defendant’s motion for a judgment on the pleadings was overruled, and its motion to strike the interrogatories or for a protective order was overruled and the defendant was granted thirty days to file answers to the interrogatories. Shortly after this point of the proceedings the writ of prohibition was sought here and a preliminary rule issued by this court.

As the matter stands now, there is before the trial court a motion to make more definite and certain the counterclaim filed and interrogatories to be answered. It is contended that the defendant is entitled to a judgment on its counterclaim in that the plaintiff has filed no answer to it and that the defendant consequently should not be compelled to answer the interrogatories. It predicates its right to such a judgment on Civil Rule 55.37, V.A.M.R. This rule is entitled “Joinder of Motions — Waiver of Objections.” That is the subject with which it deals and we find it unrelated to the facts before us.

It is asserted that the court’s order nunc pro tunc granting the additional time to plead was a nullity, and indeed it was. There must be some record, either in the minutes of the judge, clerk’s entries, or in some paper in the cause, which supports the correction. Wegman v. Fendelman, Mo.App., 333 S.W.2d 290. There was no such support for the entry made in the case before us.

However, no objection was made to the filing of the motion to make the counterclaim more definite until over two months after it was filed. Then, when the defendant was confronted with interrogatories, it sought to avoid trial of the issues by its motion for judgment on the pleadings. There is no doubt that the plaintiff had a right to file a motion to make the counterclaim more definite, Civil Rule 55.34, V.A. M.R. If the defendant objected to it being filed out of time it should have moved to strike the motion. Since it did not do so it waived any objection thereto. The code contemplates a trial on the merits so that substantial justice may be accorded litigants. Parks v. Thompson, 363 Mo. 791, 253 S.W.2d 796. A motion for judgment on the pleadings is only available after pleadings are closed. Civil Rule 55.39, V.A. M.R. The court properly overruled the motion for judgment. If the motion to make the counterclaim more definite is overruled, the plaintiff will have a right to file an answer to the counterclaim within ten days thereafter, or if the motion is sustained it will have ten days to answer after the counterclaim is amended in compliance with the court’s ruling. Civil Rule 55.27 (c), V.A.M.R.; Richman v. Richman, Mo., 350 S.W.2d 733.

As we have stated, the petition filed in the circuit court was on an account and it sought to recover from the defendant the value of certain types of asbestos boards sold to the defendant in the year 1961. Defendant generally denied the allegations that the goods were sold and that the prices were reasonable and proper and that they agreed to pay. This was followed with the counterclaim.

The counterclaim alleges that the defendant is engaged in the business of processing and laminating asbestos boards and other types of boards for resale. It states that in August, 1958, it bought from the plaintiff and the plaintiff delivered to it “several carloads” of unfinished asbestos boards knowing that the boards were to be processed and laminated by it and were then to be sold by the defendant to construction contractors. The defendant alleges that the plaintiff expressly warranted that the asbestos boards had been cured a minimum of three weeks prior to shipment and “ * * * impliedly warranted that said asbestos boards were fit for the purpose and use intended, upon which said warranties defendant relied in making the aforesaid purchase from plaintiff.”

The counterclaim goes on to allege that the boards had not been aged or cured for the minmum of three weeks prior to the shipment and that they were not fit for the use for which they were intended. It is alleged that this was a latent condition not discoverable until several months after the boards had been laminated and resold. It is alleged that the boards then began to swell, crack and blister. It is alleged that the defendant was obliged to replace the defective material at its own expense and by reason of that it suffered damages in the sum of $50,000.

Civil Rule 56.01, V.A.M.R. provides for the serving of written interrogatories by any party upon any other party to an action. It fixes the scope of the inquiry that may be made, by Civil Rule 57.01(b), V.A.M.R. which relates to matters that may be inquired into by depositions. It is as follows:

“Unless otherwise ordered by the court as provided by this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in' the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. The examining party may not inquire as to the contents or substance of statements, written or oral, obtained from prospective witnesses by or on behalf of another party. The production or inspection of any writing obtained or prepared by the adverse party or coparty, his attorney, surety, indemnitor, or agent, in anticipation of litigation or in preparation for trial (except a statement given by the interrogating party)- or of any writing that reflects an attorney’s mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 60.01, the conclusions of an expert, shall not be required.”

The interrogatories ask nineteen general questions and each general question is followed by specific questions set out by alphabetical designations. We will consider questions against which objections are made in the order in which the questions were propounded. The first objection is to question 4 which is as follows:

“4. At any time after the delivery of any such unfinished asbestos boards as are mentioned in defendant’s counterclaim filed herein, did Premier Panels, Inc. check such material to ascertain whether it met the specifications, if any, conveyed, if so, to Keasbey & Mattison Company, and if so, please state: * (This is followed by specific questions.)

The part of the question complained about is sub-section 4(d) and 4(e). 4(d) asks, “Were the results of any such checking of specifications reduced to writing, and if so, please state: (1) The delivdry (sic) dates of deliveries so checked, with results of such checking reduced to writing: (2) Attach copies of such written report of the results of such checking of specifications.” 4(e) asks: “If such reports were not written, but were oral, please give the substance and content of any such oral reports of inspections of specifications, and the names and addresses of the recipients of such reports.” It is contended that these call for hearsay and call for inadmissible reports. The objection is not valid. The Rule above quoted so provides. It is established that hearsay statements may he the subject of inquiry under the broad scope of the Rule which permits questions that may reasonably lead to the discovery of admissible evidence even though the answer itself might be inadmissible at the trial. This includes hearsay evidence. State ex rel. Pete Rhodes Supply Company v. Craine, Mo., 373 S.W.2d 38. The same complaint is directed to 5(f) which seeks to inquire about reports of defects of materials sold, and for the reasons stated above it is not subject to the objection raised.

Next complaint goes to question 6 which simply inquires about tests made on the material alleged to be defective. It is contended that this clearly invades privileged matters not subject to discovery. In support of its contention defendant cites us to Carpenter-Trant Drilling Company v. Magnolia Petroleum Corporation, D. C., 23 F.R.D. 257, and Empire Box Corporation of Straudsburg v. Illinois Cereal Mills, 8 Terry 283, 47 Del. 283, 90 A.2d 672. Both of these cases have to do with the production of reports made to counsel, at his request, by technical experts for the aid of counsel in the trial of the case. We have no such situation here and the question is not subject to the objection raised. Questions 7 and 8 go respectively to a request for copies of any letters complaining of the quality of the boards delivered. It is contended that these are equally available to the plaintiff. The plaintiff has a right to inquire about the written or oral statements which the defendant asserts warranted the goods in question and whether or not there were any complaints made about the goods when delivered. The objection is without merit. Questions 8(b) and 11(e) are objected to as hearsay. We have disposed of that invalid objection in the discussion of questions 4 and 5.

Question 10 is a question about the implied warranty and the statement which defendant asserts gave rise to this implied warranty. Some of the questions are awkwardly phrased but the meaning is clear. Plaintiff could properly make the inquiry.

Question 12 is also objected to and it is as follows:

“Please state, for each of the following dates or times, the names and present addresses of the individuals who were officers of Premier Panels, Inc., including their titles at each such time, and the names and present addresses of the individuals, firms, corporations, associations, or organizations who were stockholders of Premier Panels, Inc., at such times, including the amount of stock owned by each: * * *

There follows a list of five dates from August 19, 1958, through the date of the filing of the interrogatories. We fail to see "how this information could be of any value to the defense against the counterclaim and there is nothing set out in the respondent’s brief that would indicate such information has any relevance to any defense that might be set up against the counterclaim or that would lead to any evidence of value. We hold the question improper.

Question 14 is a proper inquiry about the delivery of boards which were not defective. Question 17 is as follows:

“State the identity and location of persons having knowledge of relevant facts concerning defendant’s counterclaim, not privileged.”

This question follows many other searching questions about the names and identities of people connected with the receipt of, testing of, and the work on the boards. Its meaning is obscure and it would be difficult for anyone to answer intelligently, or without simply repeating the answers to other questions preceding it. The objection to it is well taken. Question 19 asks whether or not photographs were taken on behalf of the defendant or at defendant’s request and it seeks the name and address of the person or persons who took the photographs and the dates upon which they were taken. The Supreme Court has held since State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 S. W.2d 69, that “ * * * photographs, like diagrams, maps and drawings prepared for use in anticipated litigation and after the cause of action accrued, were the ‘work product’ of relator in preparation of its defense and in anticipation of litigation and they are not subject to discovery and it matters not whether they are the work product of relator’s agent or attorney * * *State ex rel. Uregas Service Co. v. Adams, 364 Mo. 389, 262 S.W.2d 9.

For the reasons stated we do not think that the relator should be required to answer questions 12, 17 and 19. Our rule is made absolute to prohibit respondent judge from requiring answers to those interrogatories, and in all other respects our rule is discharged.

RUDDY, J., and J. MORGAN DONEL-SON, Special Judge, concur.


author: MAUGHMER, Commissioner.

text:
    William J. JANICKE, Plaintiff-Appellant, v. Betty HOUGH, Defendant-Respondent.
    No. 24330.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.

      John J. Phillips and James S. Cotting-ham, Independence, for appellant.
    Thos. E. Deacy, Thos. E. Deacy, Jr., Edward W. Mullen, Deacy & Deacy, Kansas City, for respondent.
   MAUGHMER, Commissioner.

We have here a damage suit growing out of a collision between two automobiles at a city street intersection. The verdict was for the defendant. On appeal plaintiff contends (1) the court erred in giving defendant’s instruction on contributory negligence and (2) there was no causal connection established between plaintiffs alleged improper acts and the collision.

Shortly after 11:00 a. m. on the Sunday morning of September 30, 1962, plaintiff, William J. Janicke, alone in his Chevrolet automobile, was proceeding east on Kansas street and nearing its intersection with Lightburne street in the City of Liberty, Missouri. At the same time the defendant, Betty Hough, with her one year old daughter lying on the back seat, was driving her Chevrolet Corvair north on Lightburne street approaching the same intersection. Both of these streets had bituminous surfaces and at the time were wet. The surrounding area was flat. There was a stop sign at the Lightburne entrance into the intersection. Kansas was a one way street —east only. A church was immediately adjacent to the northwest, Sunday morning services were in progress and automobiles were parked on Kansas street both east and west of Lightburne. Both vehicles, according to the evidence, approached the scene at from 20 to 25 miles per hour. The front part of defendant’s Corvair struck the Chevrolet near the right rear fender.

Robert E. Jacobs, a part-time police officer, arrived shortly after the accident. He found defendant’s vehicle with about one-third of its length into the intersection. He said plaintiff's car was “angled into a '60 Chevy on the south side of Kansas street 25 feet east from the intersection”. After the collision with defendant, plaintiff’s car had bounced first into an automobile parked Gn the north side of Kansas street and from that into a second car parked on the south side of Kansas street, both east of Light-burne.

Defendant was not familiar with the area. She stated that as she neared the intersection her child made an outcry, she looked over her shoulder and did not see the stop sign until it was only a few feet away. She applied her brakes, skidded, but was unable to stop completely before entering the intersection. After the collision, the only damage to her car was a dent in the chrome on the front end. The child was still lying, apparently .undisturbed, on the back seat. The defendant later entered a plea of guilty to the charge of careless driving. She said she applied her brakes when she first saw the stop sign and did not see plaintiff’s car until “I was about a car length from the intersection”. “It seemed like his car was right in front of me”.

Plaintiff’s description of the occurrence was as follows: He approached the intersection at a speed of from 20 to 25 miles per hour. “Cars were lined up on both sides of the street” (parked), he could not see Lightburne street because of a “row of bushes running down Lightburne street”. He saw the defendant’s automobile “a split second” before the collision. His car entered the intersection first. After the collision with defendant, his vehicle struck an automobile parked on the north side of Kansas street and then one on the south side. When he first saw defendant she was "15 or 20 feet before the center of the intersection” and he at that time was “8 to 10 feet west of the west curb line of Light-burne”. Plaintiff made no attempt to apply brakes but “stepped on the gas and tried to accelerate to get across ahead of her”.

The plaintiff submitted and sought recovery solely upon defendant’s failure to stop before entering the intersection thereby “violating the traffic stop sign”. The defendant, having pleaded contributory negligence as a defense, offered and the court gave Instruction No. 6, submitting that defense. We set out Instruction No. 6:

“Your verdict must be for the defendant whether or not defendant was negligent if you believe:
“First, plaintiff either: failed to keep a careful lookout, or drove at an excessive speed, or failed to slow before entering the intersection; and
“Second, plaintiff’s conduct, in any one or more of the respects submitted in paragraph First, was negligent; and
“Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained”.

This instruction authorized the jury to find that plaintiff was contributorily negligent if he (1) “failed to keep a careful lookout” or (2) “drove at an excessive speed” or (3) “failed to slow before entering the intersection”. We agree with plaintiff’s assertion that there must be evidence from which a jury might reasonably conclude that plaintiff did fail to keep a careful lookout, did drive at an excessive speed and did fail to slow before entering the intersection, else the giving of this instruction was improper. Dawley v. Hoy, Mo., 341 S.W.2d 111.

In deciding whether a defendant’s instruction is supported by substantial evidence, the court must consider the evidence in a light most favorable to defendant and disregard all unfavorable evidence. Palmer v. Lasswell, Mo., 287 S.W.2d 822, 827; Dawley v. Hoy, supra, 341 S.W.2d l. c. 116.

Plaintiff concedes the point with respect to his “failure to slow before entering the intersection”. He admits he did not slow, but rather speeded up in an effort to clear the area ahead of defendant. Plaintiff denies there is proper evidence justifying a submission of excessive speed. He says his speed was within the 25 miles per hour limit authorized by the city ordinances of Liberty. However, keeping within the posted or authorized speed limit does not necessarily show the exercise of the highest degree of care in respect to speed under any and all circumstances. Here the road surfaces were wet, church services were in progress, bushes obstructed the view to the south and automobiles were parked almost solidly on Kansas street where plaintiff was traveling. These circumstances resulted in restricting the street width, requiring a longer distance for stopping, and lessening the view to the south on the intersecting street. Was plaintiff, therefore, justified in approaching the intersection at the maximum or nearly maximum speed limit and, when he saw defendant’s car to the south, stepping on the gas and speeding up? Were these acts in the exercise of the highest degree of care? We believe the issue of excessive speed under all of these surrounding circumstances was for the jury and was properly submitted for their determination. Kitchen v. Wilson, Mo., 335 S.W.2d 38; Steele v. Goosen, Mo., 329 S.W.2d 703.

That brings us to the third element. Was there evidence from which the trier of the facts would be authorized to conclude that plaintiff negligently failed to keep a proper lookout and if so, that such failure had a direct causal connection with the collision? Was the view of plaintiff obstructed as he approached the intersection? Did he see defendant’s automobile as soon as he was able to see it and if he had kept a careful lookout, could it reaasonably have been expected and found that he would thereby have been able to have avoided the accident? Defendant says that under the evidence the answer to this last question should be “Yes”. Plaintiff says there is no substantial evidence that he could have seen defendant’s automobile had he been looking in time to have prevented the collision. In determining this issue, which is the point most vigorously debated by the parties, we examine and incorporate herein pertinent parts from the testimony of plaintiff, defendant, Officer Jacobs and Lora Bean, custodian of the Second Baptist church, who saw the accident from about 75 feet away.

The plaintiff said he saw defendant’s automobile “just at a split second” before it struck, “I was in the intersection before she was”, her car was “approximately a car length away or two lengths from my car”, when he saw it. It was his best judgment that when he first saw defendant’s vehicle, “it was 15 to 20 feet south of the center of the intersection” and at that time he was “8 to 10 feet west of the west curb line of Lightburne”. There was testimony that since the accident, Lightburne street has been widened “5 or 6 feet” and is now about 26 feet wide, so it previously was approximately 20 feet in width. He said his view was obstructed by the cars which were parked on both sides of Kansas street and by some bushes which stood in front of the house located at the southwest corner of the intersection. He did not attempt to spot the exact locations when one of these cars would first have come within view of the other.

Mrs. Hough testified that when her automobile was about “a car length from the intersection” she saw plaintiff’s car and at that time “it seemed like it (plaintiff’s car) was right in front of me”. She stated that the parked cars and “some shrubs or a hedge along there running almost to the corner” obstructed the view. She did not estimate the distances from the intersection at which two automobiles — one going north on Lightburne and one coming east on Kansas — would first come within view of each other.

Officer Jacobs was familiar with the intersection. He was asked the following question by plaintiff’s counsel and made the following reply:

“Q. Now, did you notice any obstruction on the southwest corner of that intersection which would tend to obstruct the view of both drivers? A. I don’t recall any”.

Defendant’s counsel put this question:

“Q. And you have no recollection of there being any bushes or hedge or anything of that sort on the southwest corner there at the time of this accident, is that true? A. That’s right”.

Lora Bean was custodian of the Second Baptist church, which apparently was located in a square block, one corner being on the northwest corner of Kansas street at Lightburne. On the morning in question he said he was sitting in his automobile on the driveway “near the northwest corner of the intersection” and could see “down Lightburne street better than half a block and about half a block down Kansas”. He said there was shrubbery at the southwest corner, “along the edge of the curb clear up almost to the corner”, which was “a little over three feet high” and “it obstructed the view”. A written statement signed by Mr. Bean soon after the accident contained this statement: “I did not see any evidence of either driver trying to avoid the collision”.

Officer Jacobs found skid marks indicating that Mrs. Hough had applied her brakes 26 feet before the place of contact. While it is true that he did not recall the bushes at the southwest corner, the evidence establishes unquestionably that such bushes were there.

Defendant on appeal contends that plaintiff in his petition has “judicially admitted” that when the Janicke car was 20 feet west and the Hough car was 25 feet south of the intersection, the vehicles were intervisible. The petition was in three counts. Count 1 was based on defendant’s failure to conform to the stop sign. Count 2, among other charges of negligence, included failure “to keep a lookout”. Count 3 was under the humanitarian doctrine. It alleged that when “the front end of his (plaintiff’s) automobile was 20 feet from the westernmost curb of Lightburne street * * * defendant was approximately 25 feet from the southernmost curb of Kansas street”. Defendant seeks to treat these pleadings under Counts 2 and 3 as judicial admissions that plaintiff could have seen defendant at these distances which, coupled with his testimony that he did not see her until later and when the cars were closer together, authorized the submission on failure to keep a lookout. Defendant pleaded contributory negligence generally. Plaintiff submitted his case under Count 1, that is, the alleged failure of the defendant to stop at the stop sign. We have studied the cases cited by defendant in which pleadings were held to constitute judicial admissions. None of those opinions, on their facts and their declarations of law, constitute a judicial precedent fitting and ruling the case before us. Plaintiff’s alternative and abandoned pleadings (Counts 2 and 3) alleging locations of the vehicles, do not, in our opinion, constitute judicial admissions of such factual matters.

We have examined the record carefully in an effort to find any testimony or evidence that these two automobiles became intervisible in time for either to -have seen the other and stopped or otherwise have avoided the collision, considering the speed at which they were traveling, so that failure to keep a lookout could reasonably be said to have been a cause of the accident. No witness gave any estimate as to the location at which the cars became intervisi-ble. Plaintiff and defendant agreed that the parked cars and shrubbery “restricted” the view. Plaintiff and her counsel at one time both referred to the place as a “blind intersection”. No attempt was made to show the distances within which either vehicle could have been stopped, considering speed and the wet street surface.

Suppose we were to accept the distances, as alleged in Count 3 of plaintiff’s petition as a judicial admission concerning the distances from the intersection when the two vehicles first became intervisible, and there is no evidence whatever that the drivers could sooner have seen each other’s car. Such supposition would place Janicke’s vehicle 20 feet west “of the intersection”, when he could first have seen defendant. Lightburne street was 20 feet wide. So, Janicke was 30 feet from the place of contact and traveling 20 to 25 miles per hour. At such speed he would travel approximately 30 feet per second and would, therefore, after three-fourths second (normal reaction time) have been only 8 feet from collision— would have had not more than one-third second within which to act.

It was stated in Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788:

“The courts will take judicial notice that when a situation demanding some action arises some appreciable time is required for a motor driver, a motorman or an engineer to react to the appearance of danger to begin to avoid the situation. Unless a longer time affirmatively appears in the proof the courts recognize that such reaction time is three-quarters of a second”.

This court in Reed v. Burks, 393 S.W.2d 377, 380, held that 1.60 seconds was insufficient time in which a driver should be required to act and insufficient time upon which an instruction submitting “failure to keep a careful lookout” could be predicated. The court said:

“We have reached the conclusion that the stated facts do not present a submis-sible jury case on failure to keep a careful lookout. The jury in order to find Burks negligent by reason of failure to keep a careful lookout on the facts before it would have to engage in variable surmises and speculation as to what evasive action Burks could take in 0.85 of a second or less”. (This after deducting reaction time).

Of course the jury here might have found (and properly so, we think) that Janicke was negligent in failing to slow for the intersection and in driving at a speed which was not in the exercise of the highest degree of care considering all of the surrounding circumstances. However, the instruction permitted the jury to find him negligent for failure to keep a careful lookout. We find no evidence on which such a submission could properly be predicated, nor upon which it could be ruled that failure to keep a careful lookout was a causal factor of the collision. To have a submissi-ble case more is required than a showing of a purely speculative possibility that a collision might have been avoided if a careful lookout had been maintained. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Reed v. Burks, supra, 393 S.W.2d p. 380.

We conclude that it was error to include the issue of lookout in defendant’s instruction on contributory negligence. The case must be retried.

The judgment is reversed and the cause is remanded.

SPERRY, C., concurs.

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

All concur.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. J. Randolph HENDRICKS et al., Appellees.
    Court of Appeals of Kentucky.
    March 18, 1966.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Charles Hud-dleston, Bowling Green, for appellant.
    James H. Lucas, Harlin, Parker & Rick-etts, Bowling Green, for appellees.
   CLAY, Commissioner.

In this highway condemnation case the Commonwealth took 20 acres of a 98-acre farm situated about 3½ miles south of Franklin. The property taken was to be used for the construction of an interchange on 1-65 and U.S. 31-W. The jury awarded $9,150.

Appellant’s principal contention is that it was not permitted to benefit from the enhancement in value of the landowners’ remaining property by reason of the location of the interchange. The specific argument, however, relates to the exclusion of evidence concerning public knowledge of the proposed project prior to the taking, and the trial court’s requirement that the witnesses relate their before and after values to the date of the taking.

Our cases generally acknowledge the principle that enhancement in the value of property attributable to a proposed improvement is not a compensable item of value. Commonwealth Dept. of Highways v. Blackburn, Ky., 364 S.W.2d 332; Cincinnati, N. O. & T. P. Ry. Co. v. Com., Dept. of Highways, Ky., 376 S.W.2d 307; Com., Dept. of Highways v. Wood, Ky., 380 S.W.2d 73; Tharp v. Urban Renewal & Community Develop. Agency, Ky., 389 S.W.2d 453. See also annotation in 147 A.L.R. 66. We have not definitively spelled out the practical applications of this rule and we find it unnecessary to do so in this case.

The particular testimony excluded, which the Commonwealth attempted to introduce, did not tend to prove that the proposed project enhanced the value of this farm property, or that the project was generally known, or that it affected the land value appraisals. Under these circumstances we cannot find that the rejection of this testimony constituted prejudicial error.

Under the evidence in this case, the court properly limited the witnesses to the before and after values as of the taking date. (Only in exceptional cases may ojher dates be used, and some question may be raised as to the practicability of recognizing any exception.)

It is next contended by the Commonwealth that the appraisal testimony of two witnesses should have been stricken because their knowledge of appellees’ property was somewhat limited, particularly with respect to the crop bases on the farm. We are of the opinion that the matter complained of went to the credibility of the witnesses’ testimony but was not so disqualifying as to require their testimony to be stricken.

The final contention is that the verdict is excessive. The Commonwealth’s principal argument on this point is that the project so enhanced the after value of the remaining property that the award cannot be justified. However, there was a sharp issue on this question of enhancement and the jury was not required to believe that the building of the interchange automatically converted appellees’ farmland to valuable commercial property. While we think the award was liberal, it was substantially less than that allowed by the county court commissioners, and we do not find it to have been the result of passion and prejudice.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Delmus TAYLOR, Appellant, v. Anita TAYLOR, Appellee.
    Court of Appeals of Kentucky.
    March 18, 1966.

      Fritz Krueger, Somerset, for appellant.
    Cabell Francis, Stanford, for appellee.
   PALMORE, Judge.

Delmus and Anita Taylor, the parties to this divorce proceeding, were married in 1932. In February of 1957 the wife was awarded a divorce from bed and board. KRS 403.050. Taylor brought this action in November of 1962 seeking an absolute divorce on the ground of five years’ separation. KRS 403.020(1) (b). He was granted a divorce, but the judgment denied restoration of a small 25-acre farm he had conveyed the wife in 1953. Cf. KRS 403.-060(2).

The only issue raised on appeal is whether the evidence was sufficient to justify the chancellor’s finding that “plaintiff husband thought he was about to or might have a judgment creditor and he chose to prefer his estranged wife to some feared possible plaintiff as the owner of his land. The deed was not given in consideration of the marriage, but was given in an effort to make himself execution proof.”

Six children were born to the marriage, of whom five survive. At the time the judgment in this case was entered three of them had reached maturity and the other two, 7 and 19 years of age, were still living with their mother. Taylor was directed to pay $15 per week for the support of these two children. Alimony was neither asked nor allowed. The wife has had exclusive and uninterrupted possession of the 25-acre farm ever since she and Taylor separated. At last account, she and the two younger children were living in a modest home on the farm.

At the time the conveyance was made, in 1953, the parties had separated over Taylor’s attentions to another married woman and were living apart. She says a rumor got out that the other woman’s husband was about to sue Taylor for $5,000, whereupon Taylor volunteered to and did make the deed, without any solicitation on her part. She testified as follows:

A- “He called up there and the daughter answered the telephone and he said, ‘Tell your mother — ’ ”
KRUEGER: “Obj ection.”
A- “ ‘Tell your mother to come down tomorrow and I’ll deed her the farm’.”
Q- “Did he say why?”
A- “I didn’t ask him to deed it to me and I didn’t ask him why.”
Q- “Did he make any statement as to why he deeded you the farm?”
A- “No, he didn’t say why I’m giving it to you, he just said to come down and he deeded it to me, and so I come and he deeded it; I didn’t ask a question.”

Joan McLockland, a married daughter of the Taylors, gave this account:

Q- “Can you tell the Court the circumstances under which your father made a deed to your mother for the home place in Broughentown.”
A- “Yes, he called the store one day, and I answered and I asked him and told him that people were asking if he wasn’t going to be sued by Joe Kausen, so the next day he called mother and come to Stanford and gave her the place.”
Q- “Now, was that the consideration that he gave the place for?”
A- “Yes, the only thing, I mean, he didn’t give it to her until he knew that.”

Taylor’s testimony on this phase of the case was as follows:

On direction examination:

Q- “Why did you deed it to her?”
A- “I deeded to to her — she asked me to, and I deeded it to her.”
Q- “She paid you nothing for it?”
A- “No.”
Q- “You deeded it to her purely because she was your wife?”
A- “Yes.”

And on cross-examination:

Q- “Delmus how’d you happen to put that farm in your wife’s name?”
A- “She asked me to and I did.”
Q- “Wasn’t the woman about to sue you?”
A- “No, sir.”
Q- “Wasn’t Clausen [sic] about to sue you, because his wife had a child ?”
A- “No, sir; No, sir.”
Q- “Didn’t your daughter come there and ask you to put it in their name so they wouldn’t lose the place?”
A- “No, if she did, I don’t remember it.”
Q- “You don’t know whether you got a child by another woman, or not, then ?”
A- “No, I don’t.”
Q- “Did you say you did have?”
KRUEGER: “Objection!”
A- “Nobody didn’t tell me I had.”
Q- “Nobody told you you had, huh? Did your wife accuse you of it?”
A- “I think so.”
KRUEGER: “Obj ection!”
Q- “That’s what you got the other Separation Agreement over, wasn’t it?”
A- “Something like that.”
Q- “Something like that! And that’s when you put the deed in your wife’s name, wasn’t it?”
A- “Yes.”

It is true, as Taylor contends, that in most of the instances in which it has been held that the facts justified or required non-restoration on the ground of a fraudulent or immoral purpose the court has found the evidence of such motivation to be at least “reasonably clear.” See Lankford v. Lankford, Ky., 117 S.W. 962 (1909); Coleman v. Coleman, 147 Ky. 383, 144 S.W. 1, 39 L.R.A.,N.S., 193 (1912); Bean v. Bean, 164 Ky. 810, 176 S.W. 181 (1915); Honaker v. Honaker, 182 Ky. 38, 206 S.W. 12 (1918); Jagoe v. Jagoe, 194 Ky. 101, 238 S.W. 185 (1921); and Justice v. Justice, 310 Ky. 34, 219 S.W.2d 964 (1949). However, it does not seem to us that the proof in Justice, the latest of these cases, was much more impressive than it is in this one. There the conveyance was made in 1936 and the parties were divorced in 1947. In the words of the opinion (emphasis added), the wife testified that when the conveyance was made “her husband was not in debt but she said that he had some trouble with another girl before he was married * * * and this woman, named Ethel Coleman, was threatening bastardy proceedings against him, claiming he was the father of her child. This was in 1925. She also brought in the name of another woman called Dona who lived in West Virginia and who, she says, wrote threatening letters to appellant. This was about 1932 or 1933. * * * In rebuttal appellant testified that he never knew or heard of any woman named Dona and no such person had ever threatened him with any litigation but did not deny the trouble with the Coleman woman,” etc.

In a written opinion delivered after consideration of the evidence in the instant proceeding the trial court commented, “In viewing all of the testimony the court finds it difficult to believe that the plaintiff husband, at a time when his relationship with his wife had become such that they could no longer occupy the same dwelling together, would return from Chicago and deed her the farm because he wanted her to have it. It is more plausible to believe that plaintiff feared that he was going to be sued and chose to execute the deed to defeat any judgment that might he had against him.” To make a long story short, we do not find that conclusion clearly erroneous. CR 52.-01.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Walter BRANNON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 18, 1966.
    Ray C. Lewis, Lewis & Weaver, London, for appellant.

      Robert Matthews, Atty. Gen., Frankfort, Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Walter Brannon, appellant, charged with the murder of Sallee Carpenter, was convicted of voluntary manslaughter and sentenced to imprisonment for five years pursuant to the jury’s verdict. KRS 435.010, 435.020. Upon this appeal he presents these assignments of error: (1) the court should not have instructed the jury as to willful murder; (2) appellant should have been granted a continuance because of an absent witness; (3) the court improperly denied a continuance when one of appellant’s attorneys became ill during the trial; (4) the court made improper remarks to the jury, and (5) the court should have directed a verdict for the appellant.

The homicide occurred on July 18, 1964, at the Kay-0 service station, near Dog-patch, in Laurel County, about ten o’clock p. m. The appellant, accompanied by his younger brother, Kenneth, and Daryl Hurley, had driven to the service station in appellant’s car. A can of beer from appellant’s car had been furnished to Ed Ever-sole, who was at the station when appellant and his companions arrived. In some manner the beer can was turned over, and appellant picked it up and drank the beer that was left. Then he threw the beer can toward the trash can, but missed the target. The beer can fell in the “gravels” around the pumps. There was evidence indicating that just before the throwing of the can, a gunshot was fired outside the station. Appellant admitted hearing such a sound, but would not testify whether it was a shot or just a noise like a shot. At any rate, he denied having fired such a shot, and professed not to know who, if anyone, had done so.

Just after the beer can had been thrown, Sallee Carpenter came out of the service station building, demanding to know who had fired the shot and who had thrown the beer can. Carpenter appeared to address his inquiry to Ed Eversole, whereupon the appellant volunteered the information that he had thrown the beer can. Then Carpenter drew a pistol from the left pocket of his trousers and fired a shot near appellant’s feet. Then, according to the testimony of appellant, Carpenter put the pistol back in his left pocket, and as appellant turned to walk away, Carpenter struck appellant in the face with his fist. Appellant said that he was slightly staggered by the blow, and as he staggered back he saw Carpenter “going for his gun.” It was then that appellant drew his own pistol and fired three shots — all of which struck Carpenter. The death of Carpenter occurred August 3, 1964, as the result of the wounds.

Appellant and his companions left the scene immediately; they drove to Jamestown, Tennessee, where appellant stayed with his uncle for several days before returning to London, Kentucky, to surrender himself to the authorities. En route from the scene of the tragedy to Jamestown, appellant threw the fatal weapon into the Cumberland River.

Appellant first contends that prejudicial error was committed by submitting a willful murder instruction to the jury, since the evidence clearly demonstrated that the homicide was not willful murder. The appellant made no objection to the instructions as given, nor did he assert any alleged error in the instructions in any manner. Thus, the claimed error was not preserved for appellate review. Hartsock v. Commonwealth, Ky., 382 S. W.2d 861; Piper v. Commonwealth, Ky., 387 S.W.2d 13; Kaenzig v. Commonwealth, Ky., 390 S.W.2d 648. We note that the alleged error, if any, was harmless anyway. Cf. Jennings v. Commonwealth, Ky., 349 S.W.2d 828.

When the case was called for trial, appellant moved for a continuance because of the absence of witness Daryl Hurley. The motion was accompanied by a statement of the testimony Hurley would give if present. The Commonwealth’s Attorney agreed that the statement be read as the evidence of Hurley, and the motion for continuance was denied. It is true that Hurley was one of the eye witnesses to the killing. In fact, he was one of appellant’s companions who was with appellant when they arrived at the service station and when they departed after the shooting. However, his evidence would have been simply cumulative of other evidence presented by other eye witnesses. His statement was read to the jury, prefaced by an appropriate admonition by the court that the jury should receive the statement as if Hurley was so testifying in person from the witness stand. In light of the circumstances here, we conclude that no error was committed in this respect. RCr 9.04. Miller v. Commonwealth, Ky., 395 S.W.2d 598.

Honorable William J. Weaver, of counsel for appellant, became ill about 4:30 on the afternoon of the trial. He so informed the trial judge, and requested that the trial be postponed until the next day. The court denied the motion, but recessed the trial until 6:00 p. m., when it was resumed with Honorable Ray C. Lewis as attorney for appellant. As requested by Mr. Weaver, the trial judge informed the jury of Mr. Weaver’s indisposition, and admonished the jury that Mr. Weaver’s absence should in no way be regarded against appellant. Mr. Lewis had participated in the trial, and in steps taken in the proceedings prior to the trial. There is no suggestion of his incompetence, or of his lack of opportunity to properly defend the case. In these circumstances, there was no error committed in denying the motion for continuance. See Hatfield v. Commonwealth, 287 Ky. 467, 153 S.W.2d 892 ; 6 Ky. 1, Digest, Criminal Law, G=>593.

The case was submitted to the jury during the night session, June 16, 1965, the same day the trial had started. The jury reported to the court its inability to reach a verdict that night. The trial was recessed until the following morning, at which time the trial judge admonished the jury as follows:

“LADIES AND GENTLEMEN of the jury, now on the trial of this case, what I have to say to you should in no way influence your decision, either for or against the Commonwealth, or for or against the defendant, but merely point out to you that this trial is expensive, both upon the Commonwealth and the defendant. You twelve people have been chosen to decide this issue, and I know of no better qualified people to make the decision. You realize that this issue must be decided by someone, either now or in the future, perhaps by further deliberation you could re-evaluate your decision and opinion in this case, and also consider the opinion and position of the other jurors. With this in mind, I am now re-submitting this case to you to see if you can reach a verdict. The admonition that I gave you last night is now withdrawn. You can take the instructions and retire to the jury room and see if you can reach a verdict.”

We do not consider the quoted admonition as prejudicial. The question has been discussed in many cases, including Collins v. Commonwealth, Ky., 396 S.W.2d 318. The cited precedent is dispositive of the point under discussion.

Appellant was not entitled to a directed verdict of acquittal. He admitted killing the victim; he pitched his case on self-defense. There was contrariety in the evidence amply supporting the theory that appellant did not act in self-defense. The jury was not required to accept appellant’s version of the incident. Cf. Stephens v. Commonwealth, Ky., 382 S.W.2d 397; Spencer v. Commonwealth, Ky., 349 S.W.2d 841, and cases compiled in 10A Ky.Digest, Homicide,

The judgment is affirmed.


text:
    O. S. BATTEN et al., Appellants, v. W. C. HAMBLEY et al., Appellees.
    Court of Appeals of Kentucky.
    March 18, 1966.
    F. Dale Burke, Francis M. Burke, Dan Jack Combs, Pikeville, for appellants.
    O. T. Hinton, Pikeville, for appellees.
   DAVIS, Commissioner.

The appellants challenge the validity of an ordinance of Pikeville levying an occupational license tax. The questioned ordinance imposes a license fee upon all persons engaged in any trade, occupation or profession within the city; the license fee is 1% of the gross receipts arising from business or services performed within the city. Pikeville is a municipal corporation of the fourth class, operating under the city manager form of government. KRS 81.-010; 89.390-89.680. The trial court entered judgment sustaining the validity of the ordinance, and denying appellants’ demand that the Board of Commissioners of Pike-ville enact a repealing ordinance (or submit the repealing ordinance to the voters) pursuant to a petition for initiative. KRS 89.-610.

Appellants present three grounds for reversal: (1) the occupational tax is really an income tax, and therefore may not be imposed by the city; (2) the ordinance fails to prescribe an adequate standard to determine what receipts shall be used as a tax base where money is earned both within and without the city; and (3) the challenged ordinance is subject to repeal by initiative, and the city illegally failed to comply with the initiative petition filed by the required number of voters.

Appellants state in their brief that they do not question the right of a fourth class city to enact an occupational tax, and cite City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 and Kohler v. Benckart, Ky., 252 S.W.2d 854. Appellants would distinguish those precedents on the thesis that the ordinance at bar provides for withholding of the license taxes from the wages of the employees, and for declaration of anticipated receipts and prepayment of the tax estimated to be due. We do not consider these elements to be controlling. We adhere to the principles of the decisions just cited.

Neither do we find the ordinance lacking in clarity with respect to the computation of receipts from activities within the city. Section VIII of the ordinance provides:

“APPORTIONMENT OF LICENSE FEES-WHERE COMPENSATION ON NET PROFIT IS DERIVED FROM ACTIVITY BOTH WITHIN AND WITHOUT THE CITY:
Whenever an employee receives compensation for services or activity performed both within and without the city, the license fee required under this ordinance shall be computed and paid upon the basis of the proportion of compensation earned for services performed within the City according to the sworn statement of the employee, or the employer or both if required by the administrator.
Whenever the net profit or gain from any trade, occupation or profession is derived from activity or business done both within and without the city and no separate record is kept or maintained as to such net profit or gain derived from activity within and without the City, the license fee required under this ordinance shall be computed and paid upon the proportion of net profit or gain derived from activity within the City, according to the sworn statement of the licensee.
In all cases of license fees computed upon the basis of apportionment of compensation or net profit or gain as herein provided, the apportionment shown by the sworn statements of the licensee or employer or both shall not be binding upon the City but shall be subject to verification by the administrator or his agents or employees through examination and audit of the books and records of the licensee or his employer, or both if required by the administrator.”

Section IV of the ordinance grants the power and imposes the duty upon the administrator of the occupational tax to make and publish such rules and regulations as may be necessary to appropriately administer the ordinance. Regulations respecting the computation of the receipts subject to the tax — when receipts arise from activities within and without the city — have been published. The appellants do not challenge the sufficiency of the regulations, but insist that the ordinance itself is so vague as to render any regulations under it a nullity. We do not agree. We think it is clear that the ordinance specifically limits its application to receipts arising from activities performed within the city. It is not required that the ordinance spell out in minute detail the administrative procedures for enforcement of its provisions. Cf. Kohler v. Benckart, Ky., 252 S.W.2d 854, 857, 858.

KRS 89.610 directs that if a petition (signed by a number of voters equal to at least twenty-five percent of the total number of votes cast for both candidates at the last preceding regular election for mayor) is presented to the board of commissioners requesting the board to pass an ordinance therein set forth, the board shall either pass the ordinance without alteration, within ten days, or submit the question of its passage to the voters of the city at the next regular election. Such a petition was presented, with a proposed ordinance merely repealing the license tax. Appellees raise certain procedural objections to any consideration of the initiative phase of this appeal; we bypass these objections, and do consider the initiative question.

The license tax ordinance is a revenue measure of Pikeville. Very obviously, it is a measure vitally affecting the fiscal affairs of the community. The governing body — in this instance the board of commissioners — is charged with the imperative duty to administer the orderly functioning of the city’s governmental affairs. In order to do that, the board must acquaint itself with the requirements for revenue to meet anticipated costs for the governmental services and functions. Included among such services are police protection, fire protection, health and welfare programs, and a myriad of other important public responsibilities. It is noteworthy that the ordinance presented by the initiative petition contained no provision for any other method of providing public revenue — it was nothing more than a repealer of the license tax. If it could be said that KRS 89.610 authorizes a simple repeal in an instance of this type, it must be recalled that the same statute precludes amendment or repeal of the ordinance enacted pursuant to the initiative, except by the voters at a regular biennial city election.

It is not beyond the realm of reason to envision a situation in which all of the revenue producing ordinances could be repealed by initiative — leaving the city without any source of income — and devoid of any authority to provide a tax ordinance until the next regular biennial election. In dealing with a similar situation, this court said:

“To permit the electorate to initiate piece-meal measures affecting the fiscal affairs of the city without regard for the overall fiscal program, or measures not embodying a basic plan or policy for the entire area of government activity upon which the measure touches, could result in destruction of the efficient administration of the affairs of the city, and we do not believe the initiative statute so intends.” City of Newport v. Gugel, Ky., 342 S.W.2d 517, 520.

We adhere to the reasoning and the result reached in the Gugel decision, just quoted. It is our view that initiative is not intended as a mere power of veto. Rather, it envisions submission to the electorate (or the board of commissioners) of a new policy or plan, legislative in character. It seems to us that the voters should be given some alternative before they may intelligibly determine whether a tax ordinance is to be repealed. We hold, therefore, that the attempt at initiative in the case at bar was ineffective.

The judgment is affirmed.


text:
    GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP., Ltd., et al., Appellants, v. Thelma JUDD et al., Appellees.
    Court of Appeals of Kentucky.
    March 18, 1966.

      Joseph C. O’Bryan, Louisville, for appellants.
    Thomas B. Givhan, Shepherdsville, for appellees.
   PALMORE, Judge.

The appellee, Thelma Judd (hereinafter called plaintiff), bought a new car on December 16, 1963, for $3231.31. Nine days later it was badly damaged in a collision with another automobile in Louisville. The loss was covered by the $50 deductible collision damage provisions of an insurance policy issued by the appellants (hereinafter collectively called the company). At the company’s request plaintiff secured and submitted two repair estimates in the respective amounts of $1,148.98 and $1,140.26. Meanwhile the company caused a separate estimate to be made by Automotive Inspection Service, a company engaged in the business of appraising accident damage to automotive equipment for insurance companies. This estimate was in the amount of $889.69, and on January 13, 1964, (he company sent plaintiff its draft for $849 (making a $9.31 error). The draft provided that endorsement by the payee would constitute acceptance of the face amount in full settlement of the claim. Plaintiff refused to accept it and the company declined to negotiate further.

Plaintiff brought this suit against the company on June 26, 1964, demanding recovery for the diminution in value of her automobile (less $50), $20 for towage, 50‡ per day for past and future storage, and $5 per day for past and future loss of use of the car. She was permitted to prove the last two items to the date of the trial, for a total of 326 days. The jury returned a verdict of $3,513 and judgment followed accordingly. The company appeals.

The insurance policy required the company to pay the amount of loss caused by collision (less $50) and to pay towing and labor costs necessitated by disablement of the automobile. The loss liability was made subject to this limitation:

“The limit of the company’s liability for loss shall not exceed the actual cash value of the property, or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, nor, with respect to an owned automobile described in this policy, the applicable limit of liability stated in the declarations,” etc.

Among the general conditions of the policy it was provided that the company “may pay for the loss in money; or may repair or replace the damaged * * * property,” etc., and the insured was required in the event of loss “to protect the automobile” at the company’s reasonable expense.

An automobile dealer testified that the market value of plaintiff’s automobile was $3,000 immediately before the accident and somewhere between $1,300 and $1,500 thereafter. The jury was instructed that it was the company’s duty (1) to pay the reasonable cost of repairs to restore the vehicle to as good condition as it was before the collision, not to exceed the sum of $1,700, (2) to pay reasonable towing costs not exceeding $20, (3) to pay reasonable storage costs incurred since the accident, not exceeding 50(⅜ per day, unless plaintiff could or should have mitigated the damages without violating the provisions of the insurance contract, and (4) to compensate plaintiff not exceeding $5 per day for the loss of use, if any, of the car for business purposes during such time as was reasonably required for her to replace it, provided that the jurors believed the company had unreasonably delayed replacing or repairing the car.

From the amount of the verdict it is apparent that the jury awarded $1,700 for repairs, $20 for towage, 50‡ per day for storage and $5 per day for loss of use of the car for the full period of 326 days between the date of the accident and the conclusion of the trial.

Although plaintiff says, and the company seems to agree, that this action “sounds” in both contract and tort, it is nothing more than a suit on and for breach of a contract. The company’s obligation was to pay money, with the alternative option of repairing or replacing the damaged property. It was entitled to and did choose to pay money. If the automobile could be put in as substantially good physical condition as it was before the accident, the company’s obligation was to pay the amount reasonably required for that purpose.

There was no evidence whatever that plaintiff’s automobile could not have been so restored. It may be true, as an automobile dealer testified, that a car that has been wrecked can never be fully restored to its market value before the accident, but the insurance contract does not require a restoration of value; it requires only a restoration of physical condition. The most that anyone estimated as the cost of accomplishing that purpose was $1,148.98. Hence the first instruction, authorizing recovery up to $1,700 for repairs, was unauthorized and erroneous. Cf. Niagara Fire Ins. Co. v. Hoffman, Ky., 253 S.W.2d 617 (1952).

We come then to the other items of recovery authorized by the instructions. The $20 towage charge is not disputed, but the company challenges the allowance of storage and lost use.

The traditional measure of recovery for failure to pay money due under contract is the amount agreed to be paid. Clark v. Life & Casualty Ins. Co., 245 Ky. 579, 53 S.W.2d 968, 84 A.L.R. 1420 (1932); 22 Am.Jur.2d 97 (Damages, § 64); 29A Am. Jur. 776 (Insurance, § 1696). If the amount is liquidated, interest follows as a matter of right; if not, “the allowance of interest is in the discretion of the court or jury trying the case.” Congoleum-Nairn v. M. Livingston & Co., 257 Ky. 573, 78 S.W.2d 781, 785 (1935); Tri-State Developers, Inc. v. Moore, Ky., 343 S.W.2d 812 (1961); Restatement of Contracts, § 337(b).

The opinion in Motors Insurance Corporation v. Jackson, Ky., 340 S.W.2d 610 (1960), though it contains a dissertation from which it might be inferred that consequential damages other than interest are allowable, nevertheless concludes as follows : “Even had the evidence met the requirements of proof of such claimed consequential damages, there would have been no legal liability under the facts of this case. See Annotation, ‘Damages recoverable from insurer for failure or delay in making payments due under contract.’ 37 A.L.R.2d 538.” That conclusion is in accordance with what we consider to be the correct legal premise. Motors Insurance Corporation v. Howard, Ky., 291 S.W,2d 522 (1956), in which the insurance company elected and actually undertook to repair the insured vehicle, is therefore distinguishable from this case, in which the company promptly elected to pay money instead.

Plaintiff suggests that the consequential damages represented by storage charges and lost use of the car are or should be allowable as punitive damages. However, punitive damages ordinarily are not recoverable for a breach of contract. Cumberland Tel. & Tel. Co. v. Cartwright Creek Tel. Co., 128 Ky. 395, 108 S.W. 875, 878, 32 Ky. Law Rep. 1357 (1908). And even if they were, plaintiff’s complaint did not demand punitive damages as such, nor were these items submitted to the jury on that theory.

In concluding, it occurs to us that the first and fundamental question for submission to the jury in this case was whether plaintiff’s automobile could have been restored in substantially as good physical or operating condition as before the accident for the sum of $899 or less. If so, plaintiff has no cause of action, since the company offered her $849. She did not demand the $20 towage charge until the suit was brought. We do not imply that the company would not remain obligated to pay her these amounts, but only that if the company is found not to have been in default it should not be burdened with the costs of litigation.

The cause is reversed and remanded for a new trial.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Virginia Stanton TAYLOR and Ralph Taylor, husband, Ashland Oil & Refining Company, lessee, Appellees.
    Court of Appeals of Kentucky.
    March 18, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty, Gen., Frankfort, Edmond H. Tackett, Department of Highways, Pikeville, for appellant.
    Kelsey E. Friend, Pikeville, for appellees.
   WADDILL, Commissioner.

The Commonwealth seeks to reverse a judgment awarding appellees $7,000.00 for approximately .8 of an acre of land condemned for highway right of way.

It is contended that the trial court erred in refusing to permit two of the Commonwealth’s appraisal witnesses to testify concerning comparable sales which were considered by them in determining the fair market value of the land taken from appel-lees. This testimony was placed in the record by avowal and we conclude it was admissible evidence to support their opinion as to the value of the land in question. Commonwealth, Department of Highways v. Taylor, Ky., 368 S.W.2d 732; Stewart v. Commonwealth for Use and Benefit of Department of Highways, Ky., 337 S.W.2d 880.

It is further contended that appellees’ witnesses violated the rule against separately pricing items of damage. For example, one of these witnesses testified as follows:

“Q39. In arriving at your after value here, you ended up with a difference of $7,920.00. Can you break that $7,920.00 into what you allowed for each thing taken ?
“A. Yes, sir.
“Q40. Will you do that for us ?
“A. As I stated, I broke the land up into two (2) different lots. One (1) lot had 125' highway frontage, and the other lot had 105' highway frontage.
“Q41. What did you allow for the land taken off those two (2) lots for the highway ?
“A. The 125' which they took, I allowed $5,000.00, and the 105' lot which they took some in front of the residence, and some in back of it, and I considered that being worth $1,000.00.
“Q42. That they took?
“A. That they took, and I considered that they damaged the remaining lot where the residence sits, $1,000.00.
“Q43. The remaining lot with the house, or just the lot?
“A. I didn’t say they damaged the structure of the house any.
“Q44. The remaining damage, how much ?
“A. $1,000.00.
“Q45. That makes $7,000.00. What was the other for ?
“A. Three (3) small outbuildings, $300.00; septic tank $300.00, and there were some trees that they took . shrubbery, $220.00, and 170' roughly speaking, 170' of fence.
“Q46. What did you allow for the fence ?
“A. $100.00.
“Q47. And so in arriving at your after value, you placed this valuation on each of the items that they took down there ?
“A. I have appraised property and maintain they have been damaged $7,-920.00.”

Where, as here, it is disclosed on cross-examination that an appraisal witness has placed price tags on items, such as septic tank, shrubbery and fencing, and has obtained the amount of damages by totaling these figures, the witness’ testimony should be stricken upon timely motion. Commonwealth, Department of Highways v. Mann, Ky., 387 S.W.2d 848. Therefore, the trial court, in the instant case, erred in failing to sustain appellant’s motion to strike the testimony of these witnesses.

The judgment is reversed with directions to grant a new trial.