author: COLLINGS, Justice.

text:
    Henrietta PATTESON, Appellant, v. Beulah McGEE, Appellee.
    No. 3634.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 29, 1961.

      Elbert R. Jandt, Sequin, E. W. Patteson, Gonzales, for appellant.
    Denver E. Perkins, Gonzales, for ap-pellee.
   COLLINGS, Justice.

Henrietta Patteson brought suit against Beulah McGee to recover damages for the alleged breach of a written lease contract covering real property. Plaintiff alleged damages in the sum of $5,400, the amount of unpaid rent alleged to be due by the terms of the lease. The trial was before the court without a jury and judgment was rendered that, plaintiff take nothing. Plaintiff Henrietta Patteson has appealed.

The pleadings and the evidence show that the parties entered into a written contract whereby appellant leased to appellee certain real property upon which was located a two story frame building. The term of the lease was for a period of five years from December 1, 1957, and the rental provided was $150 per month. The only contemplated use of the property was the operation of a nursing home. Appellee Mrs. McGee did operate a nursing home on the premises and paid rent until December, 1959. In March of 1959 and in later communications, the State Department of Health advised appel-lee, Mrs. McGee, that unless major itemized repairs and improvements were made to the premises her license to operate the nursing home thereon would be revoked, but agreed to let her continue operation until December 9, 1959. Appellant received a copy of the letter from the Health Department to Mrs. McGee and had full knowledge of the requirements therein and of the penalty if not complied with. Appellant did not make the required improvements, but insisted that Mrs. McGee make them. Mrs. McGee refused to do so. Appellant notified Mrs. McGee that her refusal to comply with the law and make the improvements was a breach of the lease contract and that unless the improvements were made appellant would “invoke the foreclosure provisions” of the contract. On December 2, 1959, appellant made written demand of Mrs. McGee for “possession of the premises now illegally occupied by you.” Mrs. McGee vacated the premises on December 6, 1959.

One of the stipulations of the contract was that the lessee should “peaceably hold and enjoy the premises without interruption or hinderance”. Among the defenses urged by Beulah McGee was that appellant had interfered with the use of the premises and that such interference relieved appellee of her obligations under the lease. Appellee also alleged that she was justified in vacating the premises and refusing to pay further rental because the contemplated use of the premises was prohibited by the State Department of Health, and further that she had at appellant’s demand surrendered possession of the premises, that appellant had accepted and thereafter occupied same for her sole benefit.

In several points appellant contends, in effect, that the court erred in holding Mrs. McGee was relieved of her obligation under the contract to make further rental payments and in rendering judgment to that effect because (1) Mrs. McGee’s pleadings that appellant interfered with her use of the premises cannot support the judgment, (2) that the pleadings and evidence concerning a surrender of the lease by Mrs. McGee and an acceptance thereof by appellant effecting a release of Mrs. McGee’s obligation to pay further rent cannot support the judgment, and (3) that the promulgation of regulations by the Department of Health placed the burden on appellee as licensee to make the required repairs and additions to the property, and since appellant did not obligate herself under the contract to do so the court erred in entering judgment denying appellant’s claim for the full amount of rent provided by the contract. These points are overruled.

Appellee’s pleadings in respect to the contention that appellant interfered with appellee’s use of the premises fully support the judgment. Appellee alleged that the lessor covenanted and agreed that the lessee, paying the stipulated rent and performing the covenants to be performed on her part, should personally hold and enjoy the said leased premises without hinderance or interruption or interference by lessor, or by any other person or persons whomsoever; that notwithstanding such agreement appellant in December of 1957, began a course of conduct which continued through December of 1959, which conduct and actions on the part of appellant so disturbed, obstructed, hindered, interrupted and interfered with appellee’s use of the premises that the premises were rendered uninhabitable; that as a result thereof appellee was constructively evicted from the said premises on or about December 6, 1959, and appel-lee, because of the uninhabitable condition of the premises, was compelled to and did vacate the premises and returned possession thereof to the plaintiff; during all of the above period of time, appellee paid the stipulated rental and performed all of the covenants to be performed on her part. The evidence concerning appellant’s interference with the use of the premises also supports the judgment. It shows that after Mrs. McGee took possession under the lease appellant came to- the premises every day for a period of months; that she pursued a steady course of vexation; that she never asked permission but would go from room to room; that she constantly complained of the state of repair of the building, although it was in substantially the same condition in which appellee received it; that appellant caused her son to write numerous letters to appellee complaining about such matters; that the fire escape on the building was inspected by the fire marshal before appellee received her license to operate the nursing home and at the time she took possession of the premises, but that appellant would notify the officials that the fire escape was in a defective condition and request them to inspect it; that she removed personal property from the premises and that she cut down trees which were useful in shading the property. Mrs. McGee testified that such conduct by appellant interfered greatly with her use of the premises and was one of the compelling reasons for her to move; that appellant also strongly insisted that appellee make the major repairs and improvements to the property required by the State Health Department; that finally appellant accused appellee of illegally occupying the premises and demanded possession; that appellee complied with the demand and did surrender possession to appellant, and appellant willingly accepted possession of the premises.

Contrary to appellant’s contention, the pleadings and the evidence concerning acceptance of the premises by appellant and the release of appellee from further obligation to pay rental support the judgment. Appellee alleged and the evidence shows that appellant demanded a surrender of possession of the property, that appellee complied with the demand, and that appellant then received and occupied the premises herself and held herself out to the public as operating a nursing home therein. Garcia v. Olivares, Tex.Civ.App., 74 S.W.2d 1064 (Writ Dis.), and cases cited therein.

A surrender of the leasehold by a tenant and an acceptance of possession by the landlord ordinarily releases the tenant from liability for rent which would otherwise thereafter accrue. 52 C.J.S. Landlord and Tenant § 493, p. 268. The question of whether there has been such an acceptance by a landlord as to release his tenant from further obligations under the contract involves a determination of the intention of the parties. This may present an issue of fact. If a fact issue concerning the intention of the parties was presented in this case it was determined adversely to appellant in the District Court, and that determination is supported by ample evidence. Appellant not only made demand upon appellee to surrender the premises, asserting that appellee was illegally occupying same, but she also wrote numerous letters to relatives of patients in the nursing home stating her intention to take over the home, remodel the building and operate a nursing home herself. She inserted an announcement in a newspaper indicating such an intention.

By the terms of the rental contract Mrs. McGee, as lessee, obligated herself “to keep such buildings in such repair as same are at the commencement of the term * * * reasonable use and wearing thereof, and damage thereto by fire, storm or other unavoidable casualty excepted * The repairs and improvements required by the order of the State Department of Health were not the kind of repairs contemplated by the lease contract. The contract obligated appellee to maintain the building in the same state of repair in which she received it. The only use of the premises contemplated by the lease contract was as a nursing home. Appellee was by the contract obligated to assume the “responsibility for the maintenance” of such nursing home. The order of the State Health Department required major and expensive improvements the nature and extent of which would affect a vital and substantial portion of the premises as a condition to continued operation of the nursing home. Appellee had not obligated herself to make that kind of repairs. She could not continue to operate the nursing home unless the repairs were made. Appellee was justified in refusing to make such repairs. 51 C.J.S. Landlord and Tenant § 368, pp. 1096, 1907. When appellant failed to make the repairs herself and ordered appellee to vacate the premises, and appellee complied with the request she was relieved of her obligation to pay rent for the balance of the term and the court did not err in so holding.

The judgment is affirmed.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    M. R. DAVISON, Appellant v. Harlan LANE et al., Appellees.
    No. 3898.
    Court of Civil Appeals of Texas. Waco.
    Sept. 28, 1961.

      W. Edward Lee, Bryan, for appellant.
    Richard H. Cocke, Houston, Hulon C. Hall, Navasota, W. C. Davis, Bryan, for appellees.
   TIREY, Justice.

This action is one for damages. It does not yield to a simple statement. The cause was tried without the aid of a jury, and in the decree the court found that the First State Bank of Bedias is entitled to recover of defendant Davison on its cross-action the sum of $2,853.53, with interest and attorney’s fees of $285.54, as provided in the note and chattel mortgage, and further found that the Stoneham Cattle Company was entitled to no affirmative relief, and further found that the writ of attachment issued in this cause on May 13, 1960, at the instance of the plaintiff and cross-defendant Lane against defendant Davison was legally and lawfully authorized, and set aside the interlocutory order theretofore entered on the 22nd day of June, 1960, which quashed the attachment, and found that Lane is entitled to recover from Davison the sum of $1, with interest at the rate of 6% per annum, and decreed accordingly. Davison duly excepted to the judgment and gave notice of appeal to this Court, and the cause is here for review.

Appellant assails the judgment on what he designates as four Points. They are substantially to the effect that the Court erred:

(1) In refusing to hold that the writ of attachment was wrongfully and unlawfully issued and levied, and in giving effect to the- writ which had been previously quashed by a decree duly signed and entered without vacating said former decree;
(2) That since the evidence of value of the cattle at the time and place of seizure had been fully corroborated and not controverted, the court should have entered judgment in favor of Davison against Lane for the value of the cattle at the time and place with legal interest;
(3) In adjudging attorney’s fees in favor of the bank, because there was no proof that appellant contracted in writing to pay attorney’s fees, and there was no proof that the attorney’s fees as sued for were either agreed to or were reasonable;
(4) In condoning the act of the bank in taking the cattle while in custodia legis without application for an order to the court authorizing the bank to sell them through public auction, and because the bank applied the proceeds to the payment of commission and to the expenses in its discretion, and further entered judgment in favor of the bank against appellant for the balance remaining on the note and mortgage.
Davison seasonably filed Request for Findings of Fact and Conclusions of Law. The Court complied with the request and we quote substantially the pertinent and controlling parts:
(1) In December 1958, the Arrants, the owners of the land, conveyed to Richard H. Cocke, Trustee, to secure the payment of a note of even date, payable to Stoneham Cattle Company, in the sum of $67,000, which deed of trust was duly recorded January 1959, in the records of Grimes County, Texas;
(2) In February 1959, the Arrants conveyed the land to the Stoneham Cattle Company, and that company assigned the note described in the deed of trust, which note and lien had, prior to February 25, 1959, been assigned and sold to the River Oaks State Bank at Houston;
(3) That in May 1959, the cattle company leased the land except the cultivated part, to Davison, and the lease was recorded on May 8, 1959, in Grimes County, and the consideration for such lease was $3,000, of which $1,600 was paid at the time of the execution of the lease, and the balance was evidenced by Davison’s promissory note to the cattle company in the amount of $1,400, due on or before September 1, 1960;
(4) That on February 2, 1960, the trustee foreclosed the note under the terms of the deed of trust, at which foreclosure sale plaintiff Lane became the purchaser, and the land was conveyed to Lane by trustee’s deed of date Feb. 3, 1960;
(5) Thereafter Lane made demand upon Davison to remove his cattle or make satisfactory arrangements to rent the land not later than Feb. 5, 1960; that on Feb. 12, 1960, Davison delivered Lane a check for $200 to pay rent on the land from Feb. 5, 1960, to Feb. 15, 1960, and that at the time of the delivery of said check, Davison did not intend that the same should be paid by the bank, but did not so inform Lane, and that thereafter Davison stopped payment on the check;
(6) That Lane accepted the $200 check in good faith, believing that Davison had executed and delivered the same in good faith and that Davison intended that said check would cover the rental for such period of time, and that Davison would advise Lane whether or not he intended to lease the land for an additional time; that Davison refused to move his cattle from the land and refused to pay rental to Lane;
(7) On May 13, 1960, this suit was filed and upon application by Lane, the Clerk of the Court issued writ of attachment, directing the attachment of Davison’s property to make the sum of $1,720, with probable costs, and which said writ of attachment was levied on the stock shown on the officer’s return;
(8) That the writ was applied for, issued, and executed in good faith.
(9) That on December 28, 1959, Davison executed a chattel mortgage to the First State Bank of Bedias, conveying the cattle levied upon under the writ of attachment, as well as other cattle, to secure a note in the amount of $10,216.23, which chattel mortgage was filed in the office of the Clerk of Grimes County on December 29, 1959, and was unsatisfied at the time of the levy of the writ of attachment;
(10) The chattel mortgage lien above mentioned was foreclosed by the bank on August 17, 1960, and the cattle which had been attached were sold for $7,240.80, and after deducting the cost of sale, there was a deficiency due by Davison to the Bank of $2,853.53;
(11) That no bona fide offer to purchase the cattle was ever made to Davison;
(12) That there was no satisfactory evidence that Collins was able to purchase the cattle in question;
(13) That there was no satisfactory evidence as to the reasonable value of the cat-tie on the date of the levy of the writ of attachment; on June 22, 1960, the date the writ of attachment was quashed; or on August 17, 1960, the date the cattle were foreclosed on, or as to the amount of the deterioration, if any, from the date of the levy of the writ until the same was quashed, or until the same were foreclosed on Aug. 17, 1960;
(14) That the bank attempted to find a purchaser for the cattle, but could not do so, and sold the same at auction, through the Port City Stock Yards, at Houston;
(15) That Davison made no effort to replevy, procure the release of, or regain possession of the cattle after the attachment was levied;
(16) That Stoneham Cattle Company failed to appear and offer any evidence of any claim it might have against any other parties, or the properties involved in the suit.
We find that the evidence is ample to support the above findings.
Conclusions of Law:
(1) That the pleadings and the affidavit for attachment were sufficient to authorize the issuance and levy of the writ of attachment, and as a consequence thereof, the order of June 22, 1960, quashing the writ of attachment, should be set aside and said .attachment reinstated;
(2) That the attachment lien was subject to and inferior to the chattel mortgage lien held by the bank to secure its indebtedness of $10,216.23, together with interest at the rate of 10% per annum from maturity and 10% attorney’s fees;
(3) That Lane became the legal owner of the land, and was entitled to its immediate possession upon receipt of the Trustee’s deed on Feb. 3, 1960, and as a consequence, his demand for possession of the land in ■question and the removal of Davison’s ■cattle, was a rightful one;
(4) That the title and right of possession of Lane was paramount to the leasehold estate held by Davison, and Davison’s lease was extinguished by the foreclosure of the Arrant Deed of Trust lien;
(5) That the transaction of Feb. 12, 1960, did not constitute a lease agreement between Lane and Davison, in that Davison had no intention of paying the rental thereon, but led Lane to believe that a lease agreement had been made, and by reason thereof, Davison is estopped to deny Lane’s title or right of possession;
(6) That Lane is entitled to recover only nominal damages in the sum of $1 for the reason that no proof was made as to the reasonable cash rental value of the land;
(7) That Davison is entitled to recover nothing from Lane for the reason that his lease had terminated, and for the further reason that no satisfactory evidence was offered on his claimed damages;
(8) That Davison having failed to mitigate his damages, if any, deprived him of any recovery;
(9) That Davison, having no equity in the cattle levied upon, is entitled to recover nothing from Lane;
(10) That the bank should recover of Davison the sum of $2,853.53, with 10% interest from date of judgment, and the further sum of $285.54 attorney’s fees, with 6% interest thereon from the date of judgment;
(11) That Stoneham Cattle Company sought no affirmative relief and offered no evidence, and is not entitled to recover anything against any of the parties hereto, nor against any of the properties.
(Stoneham Cattle Company made no exception to the decree and has not perfected an appeal, nor filed any brief.) It is true that Davison in his application for Findings of Fact and Conclusions of Law, set out 12 certain Findings of Fact and 5 Conclusions of Law. The Court adopted Davison’s requested Findings 1, 2, 3, 4, S, 6, 7, 8, 9, 11 and 12, but disregarded and rejected his Finding of Fact No. 10. The Findings requested by Davison and adopted by the Court are not in conflict with the findings made by the Court, which we have heretofore substantially set out. The Court disregarded and rejected each of Davison’s requested Conclusions of Law, and Davison duly excepted to the Court’s action in this behalf.
Going back to appellant’s Points 1 and 2, which relate to his damages against Lane, said Points being to the effect that the Court erred:
(1) In failing to hold the Writ of Attachment was wrongfully and unlawfully issued; and
(2) That the evidence of the value of the cattle at the time and place of seizure was sufficient to authorize the Court to enter judgment for appellant against Lane for the value at the time and place of the levy.
We overrule each of these Points for reasons which we shall hereafter briefly mention.

First of all, the evidence is ample to support the findings of the trial court (see Wilson v. Teague Independent School District, Tex.Civ.App., 251 S.W.2d 263, Point page 268, w. ref.) and under the findings Davison suffered no damage whatsoever to his cattle by virtue of them being levied upon. We are of the view that under the provisions of Rule 608, Texas Rules of Civil Procedure that the attachment lien fixed on the cattle was preserved pending the final disposition of the cause, and under the pleadings on file at the time of the trial the Court did not err in setting aside the previous order of the Court quashing the writ. See Humble Oil & Refining Co. v. Andrews, Tex.Civ.App., 285 S.W. 894, w. ref., November 3, 1926; also Boyd v. Beville, 91 Tex. 439, 44 S.W. 287, Point page 289. But our view of this entire factual situation is, that since there was a valid and superior chattel mortgage lien existing on all the cattle prior to the time the writ was levied, and that since there was ample evidence to support the Court’s finding that Davison suffered no damage by virtue of the issuance and levy of the writ of attachment, the claimed damage of Davison for the wrongful issuance and levy of the writ becomes moot and passes out of the case. If we be mistaken in the foregoing view, and that the Court erred on the trial of the merits in setting aside the interlocutory order quashing the writ, then and in such event, since the Court has found that Davi-son suffered no damages by virtue of the levy, and further found that the bank had' a prior and superior lien, and that the cattle were sold and the proceeds applied on Davison’s debt to the bank, we think it follows that under Rules 434 and 503, T.R. C.P., and cases there cited, that such error is harmless. Accordingly, Points one and two are overruled.

Points three and four, heretofore stated, are to the effect:

(3) That the Court erred in allowing the bank attorney’s fees; and

(4) That the Court erred in condoning the act of the bank in taking the cattle while in custodia legis without application to the Court and selling them at public auction, and applying the proceeds to commissions and other expenses, and entering judgment in favor of its claimed balance. We overrule each of these points, for reasons hereinafter briefly mentioned.

First of all, appellant made the bank a party defendant in its first amended answer and original cross-action, and specifically alleged that on December 28, 1959, that Davison executed to the bank his note payable to the bank in the amount of $10,216.23, payable on or before August 28, 1960, and to secure the payment of the note, executed and delivered a chattel mortgage on 96 head of Hereford cattle, and thac said mortgage was duly recorded in the chattel mortgage records of Grimes County long before May 13, 1960 (which was prior to Lane’s claims). Appellant prayed that the Court enter an order requiring the bank to interplead and assert its rights to the cattle. The Court entered an order dated September 7, 1960, requiring the bank to file an answer, and the bank duly complied with the order. Pertinent to this discussion, the bank set out that Davison executed and delivered to it the note fully described in Davison’s cross-action, and that it was secured by a chattel mortgage and attached a duplicate of the mortgage to its pleading marked Exhibit “A”, and this duplicate is the bank’s Exhibit No. 1. The bank, among other things, alleged:

* * * that under the terms of said mortgage, and the expressed consent of all parties to said suit and/or their attorneys and by reason of the fact that the security of said bank had been impaired, all as more fully stated in Cross-Plaintiff’s, M. R. Davison’s ■Cross Action, said bank did sell said cattle; receiving from said sale a total of $7,240.00, the expenses of said sale including commission, inspections, freight and other necessary expenses amounting to $570.76, which left the net sum of $6,670.24, which said sum was applied to Cross-Plaintiff, M. R. Davison’s note leaving a balance thereon in the sum of $2,853.54 as of the 24th day of August, 1960.”
The bank further plead that it:
* * * hag 5een compelled to employ the services of an attorney and that the reasonable value of his services in said cause as well as the collection of said note, as in said note provided and in the Chattel Mortgage also provided is the sum of $200.00.”

and prayed for judgment for $2,803.54, for costs of court, and attorney’s fees, and for general relief. Davison filed no reply to the bank’s cross-action against him, nor did Lane challenge the bank’s claim. It is true that the note was not tendered in evidence, but the mortgage was and provides :

“An attorney’s fee of ten per cent, of the amount of the principal and interest of the indebtedness remaining unpaid shall be taxed and made a part of the costs of foreclosure.”

Since the bank foreclosed its mortgage under the terms therein provided, it was entitled to its attorney’s fees. The Court had the right to fix attorney’s fees. See 7 Tex.Jur.2d Ed. pages 182-183, and cases there cited; see also Fonville v. Southern Materials Co., Tex.Civ.App., 239 S.W.2d 885 (ref. n. r. e.) ; May v. Donalson, Tex. Civ.App., 141 S.W.2d 702 (n. w. h.). See also Murray v. Bankers Life Co., Tex.Civ. App., 299 S.W.2d 730, writ refused.

Since the appellant set out the bank’s debt secured by a mortgage, and made no denial thereof, said allegation amounted to an admission and under the Court’s findings, we find no merit whatsoever in appellant’s Points 3 and 4, and each is overruled.

We have carefully considered each of Lane’s cross-points, and each is overruled.

The judgment of the trial court is affirmed.


author: FRASER, Justice.

text:
    Andy WHITE et al., Appellants, v. C. B. McELROY, Appellee.
    No. 5468.
    Court of Civil Appeals of Texas. El Paso.
    July 26, 1961.
    Rehearing Denied Oct. 18, 1961.

      Turpin, Kerr, Smith & Dyer, Midland,. Travers Crumpton, Fort Stockton, for appellants.
    John J. Watts, Odessa, Paul H. Dionne, Fort Stockton, for appellee.
   FRASER, Justice.

This is a damage suit filed by appellee to recover for personal injuries received on June 8, 1958 when the car he was driving in Odessa, Texas, was hit from the rear by a pickup truck being operated by one Andy White, employee of appellant, Waukesha Sales & Service, Inc.

Trial was had to a jury, which rendered its verdict in separately stated amounts under Issue No. 1, totalling the sum of $145,-350. These various figures are based on physical pain, past and future; mental pain, past and future; decrease in earning ability of plaintiff, past and future; the jury finding a separate amount for each of the six items.

Before going into a discussion of the merits of the case, certain observations should, in our opinion, properly be made. For example, the defendant-appellant Service Company apparently does not try to deny the negligence of its employee, or that he was working for them in line of duty at the time of the accident. In fact, the employee, Andy White, testified that he had been working since the day before, was sleepy, and did not remember anything from the last stop-light he passed until the collision apparently awakened him. He does not remember seeing plaintiff’s car ahead of him before the accident. Plaintiff testified that he was on his way, this Sunday, to a nursery for the purpose of buying shrubbery and plants. There is no charge that plaintiff was contributorily negligent in any way, and so we have a case where the negligence of the appellant is not in actual controversy; nor is it in doubt that appellee was injured. The record shows that he was taken to a hospital, where he was confined from June 8, 1958 to July 4th, and that he received much medication and was in traction except for stated intervals of rest, almost the entire time; further, that shortly thereafter, he was again returned to the hospital for treatment for a shorter length of time. It is also not contradicted that he suffered considerable pain over a long period of time. Therefore, the actual controversy seems to be the extent of his injury and the results therefrom. The injury was defined as a whiplash, with resultant injury to the tendons, ligaments and muscles of the neck and back. Some doctors indicated that these muscle or ligament injuries created a spastic condition which also affected the spine or vertebrae. It was also thought by two of the doctors that he might have had some brain injury. Four of the doctors testified that the appellee was totally and permanently disabled from doing manual labor or any work requiring physical exertion. Three doctors testified that appellee was able to work. There was considerable controversy, discussion and testimony as to appellee’s state of mind and the condition of his nerves after this accident. This brings us to the first group of points.

Appellants’ first six points generally complain of the court’s refusal to permit the introduction of testimony, or the cross examination of witnesses with reference to the fact that appellee, a chiropractor, had for many years also practiced as a naturo-path, and that in the few months preceding his accident, appellee had been enjoined from practicing as a naturopath and had been prosecuted by officials of Ector County, and had paid a fine for illegal practice of medicine. This matter was presented to the court in chambers, and his ruling was there made that such testimony could not be elicited or presented in any form to the jury.

Appellants maintain that this testimony was admissible to1 show one of the real reasons for the diminution of appellee’s income and also to show that these incidents relative to the practice of natur-opathy were the real reason that he was troubled in mind and spirit, and either lacked, or did not exercise, the will to go back to work. There was evidence from some of the doctors that this type of injury often produces emotional upsets, nervous troubles, etc.

We do not believe the trial court was in error in excluding the testimony with reference to the fact that appellee had been fined and prosecuted. We believe this matter would very likely have done more harm than good before the jury. It is entirely conjectural as to whether or not these particular matters robbed the appellee of his desire to work, or will to work, or caused him to be despondent, nervous and sleepless. We do not find, in the record, that he was ever asked, on cross-examination, if any reason other than his injury contributed to his lack of peace of mind. This question could likely have been asked and answered without going into details and without violating the court’s admonition and ruling.

As to the exclusion of the testimony that he could no longer practice naturopathy along with his chiropractic activities, it is our candid opinion that the court could have, and probably should have, admitted this evidence, as we do not think it would have been prejudicial in any way. It was a matter informative in nature, and the jury could have well decided whether it had anything to do with his future earnings or not. However, we must say that we do not believe such error was harmful. Several of the doctors testified that he could not ever do any kind of physical work again. His wife testified that, in the seven or eight months preceding the accident, when he was practicing only as a chiropractor, his income was $450 to $500 per month. This, of course, was after he had been enjoined from practicing natur-opathy. This testimony does come from an interested witness and, while it is not corroborated, neither is it attacked. The record does not indicate that any attempt was made to cross-examine appellee’s wife on this matter. Further, it was stipulated that appellee had a life expectancy of between 17 and 18 years (he was 54 years of age at the time of the accident). The amount allowed by the jury for decrease in his ability to earn money was $64,800. This would amount to about $3,600 a year income, based on the number of years in his life expectancy, which is well below the figure his wife testified he was capable of earning. Therefore, the jury did not award him the full amount that he might have earned had he lived out this expectancy and worked at the wage rate testified to; but, in effect, awarded him about two-thirds of such amount.

It will be seen, therefore, that the jury had in front of it testimony of four doctors that he was totally and permanently disabled; the testimony of his wife that, practicing chiropracty alone, he had made $450 to $500 a month (approximately $6,-000 a year) for the six or more months immediately preceding the accident. This, we believe, was sufficient evidence to enable the jury to form an opinion as to his future loss of earnings or earning ability. If he was making (and it is in the record without contradiction that he was) between $450 and $500 a month practicing only as a chiropractor, there seems to be no harm done by the fact that he was no longer practicing naturopathy. We do not find anything in the record, other than his cryptic statement — “The idea was to get out from under that” (apparently given as a reason for changing the location of his office after his trouble with the law)- — to suggest or indicate that these troubles with the law, six or more months prior to his accident, were the reason for his mental-troubles since the accident and existing in 1960. There is no evidence that he had any mental difficulties after these troubles and while he was confined solely to the practice of chiropracty. Appellants maintain, among other things, that it was this prior litigation that was bothering him, and rely somewhat heavily on the testimony of Dr. Cone. Dr. Cone’s actual statement, in effect, was, “It would seem to give or rec. 2 weeks in mountains without thinking of himself * * * recent litigation * * * or trauma, might vastly improve him if the physical condition warrants it.” This would seem to show that Dr. Cone apparently felt that there were several things that might contribute to appellee’s mental-problems, such as recent trauma or thinking of himself, as well as “recent litigation”. These first two conditions do not seem to have any connection with his having been enjoined from practicing natur-opathy. Appellants’ own witness, Dr. Sib-ley, in his testimony, indicated that he thought the present litigation was what was bothering him; other doctors testified that he was mentally upset likely because of financial worries, hospital bills, and possible loss of his home. On the basis of the record, therefore, we do not feel that the exclusion of the proffered testimony was reversible error, as there seems to us to be sufficient evidence to warrant the jury’s findings, and we do not feel that, had the testimony been included, it would likely have caused a different verdict to be rendered, or figure reached, by the jury. The record does not seem to show that any attempt was made to question Dr. Cone as to what litigation he had in mind. It is not believed that either the appellants’ brief or the bills of exception maintain or show that Dr. Cone, or any other doctor, would have testified that it was the excluded litigation to which they referred as that which possibly affected the recovery of plaintiff. Appellants’ first six points are therefore overruled.

Appellants’ Points 7 to 16 complain of the court’s action in admitting certain statements and opinions taken from and produced by hospital records, and permitting certain doctors to testify therefrom.

At the outset, we are again reminded that there is no real controversy in this case to the effect that plaintiff did suffer serious injury at the hands of Waukesha’s employee. Therefore, we are not primarily concerned in this case with the matter of negligence, or the actual fact of injury; but, rather, with the extent of the injuries, the treatment thereof, and the results therefrom. At the cost of being lengthy, we think it wise, for the proper evaluation of the case to include a brief summary of the medical testimony and reports, as we feel this case is impossible of disposition without thorough, careful and even repeated study of the record.

Dr. Leigh (plaintiff’s witness)

Testified about and from hospital records and charts of Medical Center Hospital, of Odessa, including X-rays — saw no fractures or abnormality — described whiplash injury, effect of same on ligaments and muscles, as well as describing the impact on the brain as the head is snapped back, causing the brain to be bounced against the bony skull — described treatment for whiplash — testified that many neck injuries caused nervous tension, emotional upsets, mood changes, etc. — stated that plaintiff had severe sprain or strain of ligaments but no tearing — had some disc displacement with probable resulting nerve pressure — plaintiff unable to do manual labor at this time — will have permanent pain condition.

Dr. Leigh (cross-examination)

Was examined about X-rays and diagrams — testified that records show plaintiff suffering from prior arthritic condition — that he, as treating doctor, had patient in neck and leg traction — that plaintiff had no fractures — testified that he did not consider litigation as the cause of plaintiff’s anxiety, but that same was likely caused from worry about finances, not being able to work, being in the hospital, and possible loss-of his home.

Dr. Ramsey (plaintiff’s witness)

Answered hypothetical question that plaintiff’s condition was due to the accident — that plaintiff would never be able to do manual labor or practice as a chiropractor — that his back can’t be cured — will' always have constant pain and would suffer mental anguish.

Dr. Ramsey (cross-examination)

Examined plaintiff only once, on date of December 29, 1959.

Dr. Spears (plaintiff’s witness)

First examined plaintiff January 14, 1959' —found muscle rigidity and spasm in back —plaintiff unable to raise hands above head —limitation of motion of neck, arm and lower extemities due to pain — took many X-rays — found plaintiff had arthritic condition — found decrease in space between certain vertebrae, due to muscle spasm— that such would cause pressure on nerve root and cause pain — examined plaintiff again February, 1960 — found little change in condition — testified that injuries resulted! from his accident — that plaintiff was totally disabled from manual labor or labor requiring physical effort — that he will always have pain, but a neuro-surgeon might operate and relieve some of pain.

Dr. Spears (cross-examination)

Stated that most whiplash cases recover, but some take considerable time- — -there are exceptions — found no bone damage — testified plaintiff stated pain had decreased some —found little wrong with lower extremities.

Dr. Cone (defendant’s witness)

Found considerable prior arthritic changes — -no damage to skeletal system from accident — plaintiff suffered a whiplash injury, traction applied, neck and foot, because of pain in lumbro-sacral area — plaintiff kept under moderate sedation — on second trip to hospital, plaintiff given daily ultrasonic physiotherapy, along with neck traction and sedation — testified and related Dr. Rader’s diagnosis, with explanation and recommendations — this witness testified that he thought plaintiff needed the help of Doctors Grice and Rader- — during September and October, 1958, plaintiff was given biweekly injections of cyanocobalamine — he expected plaintiff to recover and was disappointed that he did not — could not see any reason for his failure to get well, and found no reason why plaintiff could not return to work.

Dr. Cone (cross-examination)

Read from hospital chart that plaintiff, on re-admission to hospital, was nervous, had emotional and mental upsets with jerking-like motion of hands and feet, and amnesia — that EEG was requested of Dr. Grice — that Dr. Rader would be asked to do a complete neurological DIFF — that plaintiff had slight cerebral hemorrhage and minor psychosis, meaning a brain lesion —that this witness diagnosed plaintiff’s injury as a whiplash, and treated him accordingly — agreed that all radiologists and doctors in case had found straightening of plaintiff’s spine due to muscle spasm, and pain in lumbar region — agreed with authors and lecturers cited by attorney for plaintiff that whiplash injuries usually produce disturbing emotional reactions or persistent psychoneurotic reaction — admitted that he suspected some brain-stem involvement— stated that he found nothing on last examination of plaintiff to account for his alleged inability to work as he had done before injury.

Dr. Rainer (defendant’s witness)

Examined plaintiff October 9, 1958 and May 7, 1959 — detailed results of examination of plaintiff and history of injury and statements of pain — stated that plaintiff said he had to wear braces on neck continually except when in bed — that plaintiff said he had to take pills for pain because he had continued hurting of head, neck and back — that such pills did relieve the hurting — that he had to take sleeping pills— that he had lost 20 pounds since the injury —witness found stiffness and spasm of cervical muscles — abnormal swelling of glands in neck area — on second examination, 5/7/59, had same complaints of pain from plaintiff- — -found some spasm in neck muscles and muscular soreness in upper back and lumbar region — found no actual injury to the cervical spine or bony structure — ■ found prior osteo-arthritic changes- — -that he thought no permanent disability could be attributed to the June 8, 1958 accident— that in May, 1959, plaintiff could have returned to doing some of the work he had been doing.

Dr. Rainer (cross-examination)

Thought plaintiff had an uncommon amount of arthritis for a man his age.

Dr. Sibley (defendant’s witness)

Examined plaintiff January 28, 1960— found plaintiff had suffered moderately severe whiplash, which he describes as “ * * * it was a result of being struck from the rear and his head, being on the end of his moderately long neck, whipped back like that and he over-compensated with his muscles and threw his head forward and then it came up again, perhaps like so.” — witness stated as follows: “I found that at the time of the accident he suffered cerebral concussion, which very frequently goes with whiplash injury.”— stated that same was of a mild degree and was manifested by vomiting, dizziness and very brief loss of consciousness — that there was an aggravation of the degenerative joint between the fifth lumbar vertebra and the first sacrum — stated that he thought plaintiff had developed an anxiety state, which was a usual thing following such an accident, and had concern about ability to earn a living, concern about his comfort, concern about his future in general, and that there was a certain amount of mild hysteria — that he did not consider this evidence of malingering at all, stating: “I think it is a bona fide situation” — found no evidence of permanent harm from the cerebral vascular accident — that X-ray showing changes in spine indicated that such were old, with the exception of some straightening of vertebrae due to whiplash — that damage in the fifth lumbar area might not have resulted if joint had not already been diseased' — found that plaintiff was able to go to work, but will suffer discomfort for weeks, months, or perhaps years, but that such should decrease rapidly following completion of this suit — testified that a suit such as this causes a person with a whiplash injury to be greatly concerned about what happened to him, his future, whether person responsible will be punished, results of suit — all of which create or cause anxiety which aggravates the symptoms — recovery largely depends on patient’s will to get well, which is a highly- complex thing depending on patient’s personality and background — in this situation, another person might have done better- — or not as well —found that plaintiff had ten to fifteen per cent permanent bodily injury, superimposed on old condition.

Dr. Sibley (cross-examination)

Plaintiff had moderately long neck — that whiplash injuries often cause variety of mental upsets and disorders — that even years later, things can occur as the result of the accident in this type of injury.

Dr. Barry (plaintiff’s witness)

Found plaintiff had damaged inter-vertebral disc between fifth lumbar and first sacral, with nerve root pressure — injury to neck and loss of curvature and some evidence of brain injury — -did not think plaintiff could ever return to his profession as chiropractor, and will suffer permanent pain.

Dr. Barry (cross-examination)

Saw patient only once, September 5, 1958.

We believe that appellants’ points relative to these hospital records and their admission and testimony therefrom, must be overruled on the basis of the language of Articles 3737e and 5506a, Vernon’s Ann. Revised Civil Statutes. Each succeeding case seems to amplify and further illumine Article 3737e. Travis Life Ins. Co. v. Rodriguez, Tex.Civ.App., 326 S.W.2d 256, affirmed 160 Tex. 182, 328 S.W.2d 434; 13 Tex.Jur., secs. 283, 284 et seq., beginning p. 475; State Automobile & Casualty Underwriters v. Reagan, Tex.Civ.App., 337 S.W. 2d 522. In the above case, which seems to have no writ history, the records of the hospital contained data showing complaints of severe pain, and diagnosis of muscle spasm in the back, etc. This case also cites 38 Texas Law Review 645, 648. Appellants complain especially of the statements of Doctors McAllister and Lewis. These statements merely reflected their typed interpretations of X-ray pictures from the hospital records. Appellants also complain of the reports of Doctors Rader and Grice, but it will be noted that appellants’ own witness, Dr. Cone, related Dr. Rader’s diagnosis himself, and further testified that ap-pellee should have the help of Dr. Grice and Dr. Rader. Complaint is also made that Dr. Grice’s report probably originated the claims of brain damage; but it will be remembered that Dr. Leigh described the result of whiplash injury to the brain; that Dr. Barry, who examined plaintiff in September of 1958, found some evidence of brain injury; that Dr. Cone testified as to slight cerebral hemorrhage and minor psychosis; further, that he suspected brain-stem involvement. Dr. Sibley testified flatly that he thought plaintiff had suffered a cerebral concussion and had sustained a cerebral vascular accident, but that no permanent harm had resulted therefrom. We do not feel it to be reasonably inferable that Dr. Grice’s opinion or diagnosis could have resulted in the diagnoses, above described, of these other doctors. On the basis of the above cited authorities and the authorities cited therein, and the medical record, as well as the fact that there was cross-examination of much of the complained of material, plus the fact that these were records and reports of a duly constituted and reputable hospital, we feel there is not sufficient merit in appellants’ points, and they are accordingly overruled.

Appellants’ Point 17 complains of the fact that this matter was submitted to the jury on one issue of damages, broken down into six elements as described early in this opinion. Considering this issue and the court’s explanation of same, we do not believe it was error to submit the matter in this fashion. This method is suggested in Lieck’s Legal Trial Aid, second edition, page 771, and has found approval in several cases, such as the following: Texas & N. O. R. Co. v. Wilkerson, Tex.Civ.App., 260 S.W.2d 912 (n. r. e.); Crowell-Gifford Furniture Co. v. Cloutman, Tex.Civ.App., 276 S.W.2d 539 (n. r. e.). We believe the appellee’s pleadings and proof are sufficient to authorize the submission of the issue in this manner, and appellants’ Point 17 is therefore overruled.

Appellants’ Point 18 complains of the court’s action in permitting appellee to file his trial amendment enlarging his claim for damages. We do not feel that the record shows that the trial court abused its ■discretion in permitting such amendment.

Appellants’ Points 19 to 23 assert that the verdict is so large that prejudice is shown as a matter of law. While we overrule these points, we do feel that a remittitur is called for. Remittitur causes the appellate court to become actually a fact-finding body, as it must determine for itself whether damages allowed by the trial court are excessive. In this case, we do not have the problem of determining whether any of the alleged errors complained of caused the jury to find defendants guilty of negligence, or caused the jury to find, sympathetically, that plaintiff was hurt. These things are not in active, actual controversy in this case. We are, rather, relegated to the problem of whether the jury went too far in allowing the amounts that it did for damage and pain and loss of earnings. We feel that certain elements are not fully justified as to their amounts by the evidence. For example, we believe that the amounts found for future pain and suffering, mental and physical, are not justified by the evidence, which is not very strong on future mental pain and anguish, and does indicate that much of the future physical pain can be relieved by medication or possible surgery. We think, therefore, that the judgment or verdict is excessive to the amount of $30,000.

Appellants’ 24th point is overruled, as we do not find any reason to submit the issue of unavoidable accident, nor do we find merit in the point in any respect.

We suggest that the appellee file a re-mittitur in the sum of $30,000 on or before the 9th day of August, 1961. If this is done, the judgment of the trial court will be affirmed; otherwise, it will be remanded for a new trial.

If such remittitur is filed, appellants’ points will all be overruled, and the case affirmed.

CLAYTON, J., not sitting.


author: MAUGHMER, Commissioner.

text:
    Elva ALVEY, Plaintiff-Respondent, v. SEARS, ROEBUCK AND COMPANY, a Corporation, Defendant-Appellant.
    No. 23285.
    Kansas City Court, of Appeals. Missouri.
    April 3, 1961.
    William A. Rundle, Jr., Morrison, Heck-er, Buck & Cozad, Kansas City, for appellant.
    Arthur C. Popham, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

This is an action for damages for personal injuries. Plaintiff had a verdict and judgment in the sum of $7,400. Defendant has appealed.

The facts in brief form as developed by plaintiff’s evidence are as follows: On December 17, 1956, plaintiff, then 49 years of age, in company with her 19 year old son, Ernest, visited defendant’s store at 1500 Cleveland, Kansas City, Missouri. Arm-in-arm they walked along an aisle in the store which was 5½ to 6 feet wide, with a level wooden floor. The aisle was bordered by display counters containing consumer items for sale. A man preceded plaintiff and her son down the aisle at a distance of 15 to “about 20 feet”. Plaintiff’s son later identified this man as Eugene Tallant, an assistant manager of the auto accessory department. As opposed to this identification by the son, Mr. Tallant testified that at the time in question he was in his department waiting on a customer, but was not in the aisle.

Plaintiff and her son had walked approximately 15 to 20 feet down the aisle when plaintiff felt something roll under her foot and she fell on her face and stomach. Between 1 and 5 minutes after plaintiff fell, and while she was still on the floor, an unidentified man came up and handed a small, round, red object to plaintiff’s son, saying: “That is what she fell on.” The object is a plastic cap to a pen or pencil. It is about U/2 inches in length and ¾ of an inch in diameter. It was admitted in evidence over defendant’s objection as Plaintiff’s Exhibit 1, and is before us. Neither plaintiff nor her son had seen any object on the floor, and neither had seen this particular article before. The only reason plaintiff had for believing she fell or slipped on this object was because of the statement made by the unidentified person who handed it to her son.

Neither plaintiff nor her son knew how long this object had been on the floor, ever saw it on the floor or knew how it came to be on the floor. No other evidence on behalf of plaintiff was produced on these points. At the time of the occurrence the premises were open to the public and, according to plaintiff, there were “quite a few” other people in the store.

The case was submitted to the jury 011 the theory that a small, round piece of plastic, introduced into evidence by plaintiff as her Exhibit 1, was present on the floor of defendant’s premises where plaintiff was walking as a customer and was the cause of her fall ana that defendant knew “or by the exercise of ordinary care could and would have timely known of the presence and location of said object on said floor” in time for it to have removed the object or warned plaintiff of its presence. It is the contention of the defendant that there was an utter failure of proof of such knowledge on its part and that absent such knowledge, the necessary elements of a case of liability against it were not made out and a defendant’s verdict should have been directed.

It has long been established in this jurisdiction that the proprietor of a store is not an insurer of the safety of his customers. He is liable only if he knew or in the exercise of ordinary care should have known, of the existence of the perilous defect, which was unknown to the customer, in time for him to have corrected the condition or have removed the perilous defect. This is most clearly stated by the St. Louis Court of Appeals in Uelentrup v. Switzerland Stores, Inc., Mo.App., 164 S.W.2d 650 at page 651: “The law is well settled that a merchant or storekeeper is not an insurer of the safety of customers invited to his store, nor does his duty to customers rest upon the same basis as that of a master to a servant or of common carriers to passengers. ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ * * * ”,

Again in Lance v. Van Winkle et al., 358 Mo. 143, 213 S.W.2d 401, 402, 404, it is stated : “The rule is well settled that a customer who is injured by slipping upon some foreign substance at a store has the burden of producing evidence showing the presence of the foreign substance for a sufficient length of time to give notice of its presence to the storekeeper. * * * And later in the opinion went on to say: “Thus it is clear that plaintiff has not sustained the burden of affirmatively showing the length of time the unsafe condition had existed. The evidence leaves that factor which is vital to plaintiff's case wholly to conjecture. Therefore plaintiff may not recover on the ground of constructive notice.” (Emphasis supplied.)

In Robinson v. Great Atlantic & Pacific Tea Company, 347 Mo. 421, 147 S.W.2d 648, 649, it is said: “ * * * ‘The applicable law, as announced by the courts of this state, is that a storekeeper is not liable to his invitee for injury resulting from a dangerous and unsafe condition of the store unless it is shown that the storekeeper had knowledge, actual or constructive, of such condition in time by the exercise of ordinary care to have remedied the condition before the occurrence of the injury. * * * ’ (Court’s emphasis.)

The same principles have been pronounced in the cases of Mullen v. Sensenbrenner Mercantile Co., Mo., 260 S.W. 982, 33 A.L. R. 176; Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, to name but a few.

In the case at bar the record is devoid of any evidence as to when the object came to be on the floor or how it got there or that defendant ever knew it was there. Plaintiff herself admits that she did not know what the object was, how it got there or how long it had been there and her son was not able to help out in these respects in his testimony.

In opposition to defendant’s contention that its motion for a directed verdict at the close of plaintiff’s case should have been sustained it is the argument of plaintiff that notice to defendant had been proved by plaintiff’s evidence to the effect that the assistant manager of the auto accessory department, Eugene Tallant, had preceded her down the aisle in question and should have seen and removed the object before plaintiff fell on it. This is plaintiff’s sole ground for arguing the requisite question of notice to defendant and this argument at best ignores a fundamental factor precedent to liability, namely, there is no showing in any of the testimony that the object of which plaintiff complains was present on the floor as Eugene Tallant walked by.

In the above-cited case of Lance v. Van Winkle et al., it was there argued by the plaintiff that the defendant store was charged with notice of the presence of an ice cream cone on the floor because defendant’s porter, whose duty it was to inspect and clean the floor, had passed over the place in question a few minutes before plaintiff fell. In rejecting this theory, Judge Douglas stated: “ * * * He testified that he had looked but had seen no foreign matter. Therefore, says plaintiff, he is charged with actual notice of that which would be revealed by looking. But that conclusion could follow only where the physical facts show an object was actually present subject to view. Such is not the situation here. The physical facts do show the store had a vestibule, and there was a step from the vestibule to the sidewalk, but the physical facts do not show the presence of any foreign matter on the steps. This is the basic issue of fact in the case. * * * ”

The appellate courts of other jurisdictions have been confronted with and rejected similar arguments. F. W. Woolworth Company v. Peet, 1955, 132 Colo. 11, 284 P.2d 659, involved a fall in the defendant’s store by a customer over some excrement in one of the aisles. One of the floor supervisors of the defendant’s store testified that she was on the floor and had-been at the poirf where the accident happened five minutes before and had seen nothing on the floor. She had inspected the floor when she was there. The assistant store manager testified that he had been over that part of the store four or five minutes before he saw plaintiff and had not noticed anything on the floor at that time. The Supreme Court of Colorado, in ruling that the trial judge should have directed a verdict for defendant at the close of plaintiff’s case, said 284 P.2d at page 661: “ * * * All of defendant’s evidence is to the effect that several employees located on that floor, and some of them charged with the duty of looking after the floors and aisles, testified that they had been over, or had noticed this particular area within a few minutes prior to plaintiff’s fall and observed nothing on the floor. To infer that because the substance zvas found after the fall, and that it was there for an unreasonable time before, is an unsound inference." (Emphasis supplied.)

Other cases in point from foreign jurisdictions are' — Girvetz v. Boys’ Market, Inc., 91 Cal.App.2d 827, 206 P.2d 6; Mathis v. H. S. Kress Co., 38 Wash.2d 845, 232 P.2d 921; Orum v. Safeway Stores, Inc., D.C. Mun.App., 138 A.2d 665; Hunter v. Dixie Home Stores, 232 S.C. 139, 101 S.E.2d 262; Kroger Grocery & Baking Co. v. Spillman, 279 Ky. 366, 130 S.W.2d 786; Safeway Stores, Inc. of Texas v. Miller, Tex.Civ.App., 110 S.W.2d 927, and H. L. Green Company, Inc. v. Bowen, 4 Cir., 223 F.2d 523.

As we have stated, the evidence is absolutely devoid of any evidence whatsoever that the small object was on the floor when the witness Tallant preceded plaintiff down the aisle 15 or 20 feet ahead of her. To infer that it was also on the floor when Tallant passed ahead of plaintiff would be to predicate an inference on mere speculation. It is just as logical to assume that the object was caused to roll to or was inadvertently placed in that location by other means after Tallant passed by and before plaintiff reached the place where she fell, particularly in view of the fact that plaintiff testified there were “quite a few” other patrons present on that floor. It could have been dropped by the man who made the statement, “That is what she fell on”.

Plaintiff cites the cases of Lewis v. National Bellas Hess, Inc., Mo.App., 152 S.W. 2d 674; Maybee v. Missouri Orpheum Corp., 238 Mo.App. 537, 181 S.W.2d 771; Stewart v. George B. Peck Co., 234 Mo. App. 864, 135 S.W.2d 405, and Borowski v. Loose-Wiles Biscuit Co., Mo.App., 229 S.W. 424. These cases do not aid her. The Lewis, Maybee and Stewart cases involve not foreign objects, but rather conditions of the premises themselves completely within defendant’s control. The condition complained of in the Borowski case was caused by the defendant itself.

An examination of the authorities reveals no case which has held the storekeeper liable upon so slender a showing as is involved in the instant case.

Since we have determined this judgment must be reversed, it is unnecessary to decide whether or not the statement of the unidentified bystander, “That is what she fell on”, was admissible as part of the res gestae exception to the hearsay rule.

The judgment is reversed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court. All concur.


author: HUNTER, Presiding Judge.

text:
    Ella DILLENSCHNEIDER, Plaintiff-Respondent, v. Leonard CAMPBELL, J. D. Williams, and Consolidated Cabs, Inc. a Corporation, Defendants-Appellants.
    No. 23287.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Donald E. Willson, Thos. J. Conway, Jr., Popham, Thompson, Popham, Trusty & Conway, Kansas City, for appellants.
    Robert M. Fox, Claude M. McFarland, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This case arose out of an intersectional collision in Kansas City between an automobile driven by plaintiff’s husband, Willie Dillenschneider, and a taxicab operated for defendants, Consolidated Cabs, Inc., and J. D. Williams, by defendant, Leonard Campbell.

The plaintiff, a sixty-two year old housewife, was a passenger in the right front seat of her sixty-six year old husband’s 1957 Dodge automobile which was proceeding east on 42nd Street. The taxicab was proceeding in a northerly direction on Agnes Street. The two vehicles collided near and just east of the center of the intersection of the two streets, and plaintiff was injured.

The trial to the jury in which the plaintiff received a $2,500 verdict and judgment was not without difficulties. Both the plaintiff and her husband are deaf and dumb. The testimony of both was given through a sign language interpreter. Prior to this accident and until his stroke plaintiff’s husband, although a deaf mute, had been gainfully employed, apparently able-bodied, and had been driving a car since 1920 without accident, according to the testimony. But he suffered a stroke after (and unrelated to) this accident and before the trial, leaving his memory impaired, and he was unable to recall many essential facts concerning the accident.

On this appeal defendants-appellants raise three contentions of error. We shall refer to the pertinent evidence as each contention is discussed.

First, defendants say their motion for a directed verdict at the close of plaintiff’s case and at the close of all the evidence should have been granted because by plaintiff’s own evidence that she was deaf and dumb and was actively assisting her deaf and dumb husband in driving their automobile, saw defendants’ cab but failed to warn her husband of its presence, he not seeing it, convicts her of contributory negligence as a matter of law and bars her recovery.

By proceeding to put on their case after the trial court overruled their motion for a directed verdict at the close of plaintiff’s case defendants waived their right to have that motion preserved for appellate review. However, defendants’ motion for a directed verdict filed at the close of all the evidence is before us.

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

Also, in deciding the question of contributory negligence as a matter of law, the general rule is that the party charged with contributory negligence is bound by his own testimony and may not be aided by other testimony conflicting with his testimony or with his basic theory of the case. See, Carpenter v. Kessner, Mo.App., 330 S.W.2d 270.

In accordance with these basic and applicable principles we proceed to set out plaintiff’s testimony and such other testimony as might properly aid her or explain the occurrence.

Plaintiff testified that she and her husband had been visiting the Fred Murphy home. They left about 4:50 in the afternoon to drive home. She estimated the general speed of the Dodge car as it approached the intersection of 42nd and Agnes Streets as “between 15 and 20 miles per hour.”

“Q. Ask her if she saw this other car coming from the south before the impact. A. Yes.
“Q. Ask her if she has any estimate as to how far south from her this car was when she saw it first. A. Very close.
“Q. Does she have an estimate? A. About 20 to 25 feet.
“Q. At the time she saw it, did she see it long enough to make any estimate of its speed ? A. Thirty.
“Q. * * * (ask her) where her car was in reference to the intersection when she first saw the car coming from the south. A. Almost to the middle of the intersection.
⅝* ⅜ ⅜ ⅜ ⅜ ⅜
“Q. Ask her if she has ever driven an automobile. A. No, doesn’t know how.” * * *
“Q. Now, Mrs. Dillenschneider, when you rode with your husband you always rode in the front seat to help him, did you not? A. Yes.
“Q. And you watched out for him, didn’t you? A. Yes.
“Q. Does she watch out to the right and to the left and ahead, or just to the right? A. All the way.
“Q. And when she sees something coming, what does she do? A. She nudges him.
“Q. Did she nudge him before this accident? A. It was too late.” * * *
“Q. When the front of their car was even with the west side of Agnes, did she see the cab at that time? A. No.
“Q. (From the west curb of Agnes, looking south) ask her if she could see a half block. A. About.
“Q. Did she see the cab in that half block space when she looked to the south? A. About 25 feet.
“Q. Ask her if she looked to the south as they entered the intersection. A. Yes.
“Q. Did she see the tab then? A. About 25 feet.” She also had looked to the north.
“Q. Was she looking south continuously? A. All directions.” * * *
“Q. Ask her if she didn’t turn her head away right after she saw this taxicab coming. A. She did turn her head away because she was afraid.
“Q. How far did the taxicab travel while she was looking at it? A. Close to, about 20 feet.
“Q. Ask her if the taxicab traveled the distance of 20 feet while she was looking at it. A. Yes, and she looked away because she knew she would be hit and it was too late to warn her husband.” * * * “He (taxi driver) went straight; he didn’t slow down.” There was nothing to obstruct her vision when she was 25 feet south from the intersection.

Indicative of the difficulty of the plaintiff understanding the questions as presented through the interpreter is: “Q. Mrs. Dil-lenschneider, were you mistaken, then, when you said a few minutes ago that you looked to the north for traffic before you got to the intersection? A. First I looked to the north and then to the south. She thinks she looked to the south first and not to the north. I believe my husband looked to the north. Q. Wasn’t that the situation as they entered the intersection, that the husband was supposed to look one way and she was supposed to look the other? A. Yes.”

Police Officer Jack Maxwell testified for plaintiff that defendant Campbell at the scene of the accident “stated he was northbound at approximately 20 miles an hour and that he saw the other vehicle too late to avoid; he saw it when he was six feet back of the point of impact. He was going 20 miles an hour at the time of impact.” Officer Maxwell also testified that while the intersection may be termed a blind one the range of vision is “possibly 60 feet”, range of vision meaning that if Mr. Campbell had been 60 feet back and Mr. Dillenschneider 60 feet back they could have seen each other. There was an embankment approximately 5 or 6 feet high and a house on the southwest corner. There was evidence that 71 feet of skid marks laid down at the scene were the taxi’s skid marks. Officer Maxwell described the skid marks and stated that approximately 20 to 25 feet were heavy skid marks and the rest of the skid was a very light skid.

Defendant Campbell testified that it was a “blind corner”; that when he was 25 feet (from) in the intersection and looked to the left he could see 25 feet.

He also stated he only saw the Dillen-schneider car 6 feet from the point of intersection when he sounded his horn; that he was then going 20 miles per hour; that the intersection was approximately 26 feet wide and that it takes him approximately 40 feet to stop his taxicab when going 20 miles per hour; that the range of vision at that intersection is approximately 20 feet, i. e. equal distance from one street to the other.

In this state the driver of a motor vehicle has the duty to exercise the highest degree of care. The standard of care is that of a normal man, and if the particular driver has physical handicaps that affect his driving these are factors to be taken into consideration along with the other facts in determining whether or not he was negligent in a given situation. No driver is permitted to successfully claim exemption from the consequences of an accident due to his actions while driving on the ground that his physical deficiencies handicapped him. The usual rule with regard to those who have impaired hearing, is that if licensed to drive, they have a right to drive in spite of the impaired hearing, but must use their other faculties and so drive as, in effect, to off-set the disability and conform to the standard of exercising the highest degree of care required of all drivers of motor vehicles.

In line with these principles plaintiff’s husband is not to be held guilty of negligence as a matter of law simply because he was a deaf mute. See, 61 C.J.S. Motor Vehicles § 484a, p. 82; Atkinson v. Cardinal Stage Lines Co., 148 Kan. 244, 80 P.2d 1073; 28 A.L.R.2d 102(66). Nor is plaintiff to be held guilty of contributory negligence as a matter of law simply because she rode as a passenger in an automobile driven by a deaf-mute.

The general rule is that a guest-passenger in an automobile has a duty to exercise ordinary or reasonable care for his own safety, and is chargeable with contributory negligence which will bar his recovery if he fails to exercise such care and his failure contributes proximately to his injuries. As earlier indicated, ordinarily the question of the contributory negligence of a guest passenger in an automobile involved in a collision is for the jury to decide in the light of all the surrounding facts and circumstances. See, 5A Am.Jur., Automobiles and Highway Traffic, Section 1051, page 916. It is only where there is no reasonable doubt as to the facts and the inferences to be drawn from them and clear that reasonable minds could come to but one conclusion that the court should take the subject from the jury and rule it as a matter of law.

Taking the evidence in its most favorable light to the plaintiff we have concluded that plaintiff was not guilty of contributory negligence as a matter of law. See, Montgomery v. Petrus, Mo.App., 307 S.W.2d 24(4). Plaintiff was endeavoring to help her husband by watching for approaching traffic. She had the duty to exercise reasonable care under the circumstances to discover and warn the driver of obvious dangers. She saw the taxicab when it was 20 or 25 feet away traveling at a rate in excess of 30 miles per hour. She stated it was then too late to effectively warn her husband of its approach. At a 30 mile an hour speed the taxi would be traveling about 45 feet a second, leaving her about one-half second to convey an effective warning. Whether she was negligent in not seeing the taxi, sooner and in failing to give a warning under all the circumstances, some of which were unusual, presented a question peculiarly for the jury, and the defendants’ instruct' tion on that issue was given by the court.

Defendants next suggest that plaintiff’s own evidence establishes “that she and her husband were returning to their home from a business trip when this accident occurred and that she was actively assisting her husband in driving the car by maintaining a lookout for him because of their physical infirmities. Therefore, the plaintiff and her husband were on a joint trip or enterprise, and the negligence, if any, of her husband was imputable to her; (and that) she had a duty to exercise the highest degree of care for her own safety”, citing Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383.

There are numerous difficulties with this contention. The only evidence as to what “business” plaintiff -and her husband were on was: “Q. Where had she and her husband been last before this accident occurred? A. Visiting the Fred Murphy home. Q. What was the purpose of visiting there ? A. It was on business they were visiting there.” Thus, there is no showing as to whose “business” or the nature of the business. It may have been the husband’s business or that of Mr. Murphy. This evidence clearly does not establish joint venture as a matter of law. See 5A Am.Jur., Automobiles and Highway Traffic, Section 567, page 580; Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111. Defendants themselves apparently thought the evidence did not present a submissible jury issue of joint venture as they did not undertake to instruct on it. The Mavrakos case, supra, is not applicable, for in it there was evidence of a joint venture, and that issue was submitted to the jury. We find no merit in defendants’ first contention.

The second contention of defendants as expressed in their brief is that the trial court erred “in allowing Officer Maxwell, who admittedly was not an eye witness, to testify that the speed of defendants’ taxicab was: (1) 30 miles per hour based upon the length of skid marks; and (2) 50 miles per hour based upon the length of skid marks and the amount of damage.”

Officer Maxwell testified that he had been with the Kansas City Missouri Police Department "better than six years”, and that he had been on (its) accident investigation unit “about three and a half years.” On cross-examination, he testified he had "taken many different types of automobiles and laid down skids and measured their skids and figured the coefficient of friction from the skid marks.” Several questions relating to speed were asked him and answered over objection. They are the questions that the trial court has been charged with having ruled erroneously.

“Q. Now, Officer, based upon the skid marks left by the Campbell vehicle and based upon your experience and knowledge as a police officer investigating accidents, can you tell the jury what the approximate speed of Mr. Campbell’s vehicle was? (Objected to as) * * * calls for a conclusion on the part of this witness, no proper foundation having been laid * * * (Overruled) A. This 71 feet of skid marks, basing it on 50 percent coefficient of friction would indicate that the man was going at a minimum speed of 30 miles an hour. Q. Officer, does this mean at 30 miles an hour he would have stopped leaving this amount of skid marks? A. Yes, sir.”
;}; ⅜ ⅝ ⅜ ⅜ ⅜
“Q. Basing that plus his own statement as to his speed at the time of the impact, which he gave to you at the scene of the accident, what would you estimate his speed to be? (Objected to for the reason that ‘no proper foundation was laid’) * * * A. The speed he was going at the moment of impact, which he estimated to me at 20 miles an hour, that would be added onto 30 miles an hour, which would make a total of 50 miles an hour.” A motion that the answer be stricken as “invading the province of the jury” was made and overruled.

The first mentioned question does call for the expert opinion of the witness and in that sense is asking for a “conclusion”. However, it is well settled that generally a properly qualified expert may give his opinion on matters within his speciality where required to aid the jury not deemed to possess such specialized knowledge. It is not to be given “unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. * * * It is also well established that the admission or exclusion of expert opinion testimony is a matter largely within the discretion of the trial court and the exercise of that discretion will not be interfered with unless it plainly appears that such has been abused.” Superior Ice & Coal Co. v. Belger Cartage Service, Inc., Mo.Sup., 337 S.W.2d 897, 906(8).

As illuminated in their briefs defendants’ position seems to be that it is improper to permit an expert to give an opinion as to speed based on skid marks. They rely upon such cases as Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 249 and others concerning expert testimony as to the point of impact of two vehicles primarily determined from the resultant debris. The Conger case held the giving of that opinion evidence “invaded the province of the jury”, and thus was not a proper subject for expert or opinion evidence — an objection not here made to the first question but was made to the second question. As mentioned in the later case of Stutte v. Brodtrick, Mo.Sup., 259 S.W.2d 820, 824, also cited by defendants, “ * * * Determination of high speed from skid marks and the condition of the wrecked car, by one who has had training and experience in such matters, is at least a different proposition * * While we have found no case in this state passing directly on the question certainly the general weight of authority in this country recognizes that a witness qualified as an expert may give his opinion, based upon the length of skid marks and other pertinent data as to the minimum speed at the time the brakes were applied of a motor vehicle involved in an accident. See, Annotations, Evidence — Tire Tracks or Marks, 23 A.L.R.2d 141, Sec. 15; 156 A.L.R. 382, 383 ; 92 A.L.R. 479(2); 70 A.L.R. 544, 545.

Illustrative is the early case of Fannon v. Morton, 228 Ill.App. 415, where the evidence was that the car wheels were locked. Evidence by an expert was held admissible as to the estimated speed of the automobile predicated upon the distance the tires were dragged along the pavement. In Saladow v. Keystone Transportation Co., 241 App. Div. 161, 271 N.Y.S. 293, it was held to be error to exclude testimony of an expert in the police department to establish that a taxi with brakes applied could not have produced brake marks 60 feet in length unless it was exceeding the maximum rate allowed by law.

Expert opinion evidence of minimum speed based upon the length of skid marks of an automobile and with brakes applied stopped thereby is in a sense but the corollary of expert testimony as to the distance within which a motor vehicle can be stopped if going at a speed of x miles per hour. This latter type of opinion evidence, properly presented by an expert, is generally held admissible. See, Christian v. Jeter, Mo. Sup., 287 S.W.2d 768(1); 9c Blashfield, Automobile Law, Page 414, Sec. 6237, N. 75; Brockman v. Robinson, Mo.App., 48 S.W.2d 128(3); 32 C.J.S. Evidence § 533b, note 86, p. 237. See, also, cases collected Mo. Digest, Evidence ^ 539½(2).

Based upon what to us appears to be the weight of these reasoned authorities we conclude that the determination of minimum speed from skid marks, if other objections are met, is a proper subject for expert or opinion evidence. In so saying we do not pass on whether opinion evidence as to speed based on the appearance or condition of the automobiles after the accident is á proper subject for expert evidence for that precise question is not before us. See, Annotation, 133 A.L.R. 726.

Passing to defendants’ second objection to the first set out question (“no proper foundation”) we are left without further aid by the briefs as to the precise reason for the objection. If defendants mean that Officer Maxwell’s qualification as an expert was insufficient we agree that it was tersely stated, and well could have been given in more detail. The general rule is that the omission to lay a proper foundation for expert or opinion evidence upon the examination in chief if it be supplied by evidence drawn out on cross-examination results in the error in admitting it being cured. See, 32 C.J.S. Evidence § 458a, p. 98, note 67; Crich v. Williamsburg City Fire Ins. Co., 45 Minn. 441, 48 N.W. 198(3); Tifton Brick & Block Co. v. Meadow, 92 Ga.App. 328, 88 S.E.2d 569(3); Cf. Frick v. Kansas City, 117 Mo.App. 488, 93 S.W. 351, 353(1). Taking into consideration the testimony of Officer Maxwell including his cross-examination; and giving to the trial court the right to exercise its sound discretion in the matter, we are unconvinced that Officer Maxwell’s qualification as an expert was so insufficiently stated as to result in an abuse of discretion by the trial court in permitting the mentioned testimony.

In their briefs defendants do not charge that Officer Maxwell did not sufficiently detail the pertinent facts upon which he based his expert opinion. We, therefore, do not rule on that question. In passing, we note he did testify he examined both automobiles after the collision, examined the roadbed and all skid marks, and generally examined the scene. In his testimony he did give some details on these matters.

Defendants’ final charge of prejudicial error is based on the following trial court ruling: After defendant Campbell stated on cross-examination that one month after the accident he had stopped working for J. D. Williams and the Consolidated Cab Company he was asked: “Q. What was the reason for your leaving the cab company at that time? (Defendants’ attorney) I object to that as immaterial, Your Honor. (Overruled) A. Because of the accident. The Court: How is that? Speak up, the jury can’t hear you. A. Because the safety responsibility unit, they had taken up my license. I didn’t have liability coverage and I didn’t have a license. Q. They let you go because you didn’t have a license to drive a car, is that right? A. Yes.”

At the close of the trial at defendants’ request the court gave the following withdrawal instruction: “The Court instructs the jury that the fact defendant Leonard Campbell lost his driver’s license as a result of the collision mentioned in evidence is no evidence whatsoever of negligence and should not be considered by you in determining your verdict.”

The elicited testimony was immaterial to any issue in the case and the trial court erred in overruling defendants’ objection to it. However, to permit the granting of a new trial the ruling must result in prejudicial error which materially affects the merits of the cause. Appellant courts may not reverse a judgment because of nonprejudicial error. See, Civil Rule 83.13(b), V.A.M.R. It is apparent from the objected to questions and answers and the withdrawal instruction that the jury as reasonable persons must have understood that defendant Campbell lost his driver’s license because he did not carry liability insurance required by the state of one involved in a motor vehicle accident, and that his loss of his driving license was not any evidence of negligence on his part in the collision. The fact that defendant Campbell told the jury that he did not have insurance would not result in prejudice to him. As ordinarily understood a revelation of no insurance in the trial of a personal injury suit involving an automobile collision is tantamount to a plea of poverty, and whatever prejudice may result does not result to him who asserts he has no insurance coverage. See, Wallace v. Whitzel, Mo.App., 324 S.W.2d 157(8). Since no appellate court may reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the cause of action we rule defendants’ final contention against them. We have examined all of the cases cited by defendants and find nothing in them contrary to the views we have expressed.

The judgment is affirmed.

All concur.

      . Testimony descriptive of skid marks lias been held to be pertinent and admissible evidence as bearing on the speed of the motor vehicle at the time of the accident. Bear v. Devore, Mo.App., 176 S.W.2d 862; 23 A.L.R.2d 125(7). And see, dicta, Maul v. Filimon, Mo.App., 315 S.W.2d 859, 865, “skid * * * or the force of the impact as evidenced by the damage done * ⅜ ⅜.”


text:
    George L. FISHER, Respondent, v. CITY OF INDEPENDENCE, Missouri, Appellant.
    No. 23148.
    Kansas City Court of Appeals. Missouri.
    June 5, 1961.

      John F. Thice and Gilbert R. Titus, Independence, for appellant.
    Arthur B. Taylor, Independence, S. David Trusty, Kansas City, for respondent, Pop-ham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   MAUGHMER, Commissioner.

The Industrial Commission of Missouri entered an award of $614.75 in favor of George L. Fisher, respondent, against appellant, the City of Independence, Missouri. Upon motion of Fisher, the Commission set aside the award and dismissed the claim. The Circuit Court of Jackson County affirmed and the City has appealed.

Plaintiff, on July 20, 1957, and while in the employ of defendant, suffered an injury which was compensable if covered by workmen’s compensation. It is undisputed that thereafter the City paid him his regular weekly wages of $68.20 for a period of 45 weeks, totaling $3,069, although plaintiff rendered no services during that period.

On June 6, 1959, plaintiff filed suit against the City for common law damages. The City moved to dismiss, alleging that the parties were subject to the Missouri Workmen’s Compensation Law, Chapter 287, RSMo 1949, V.A.M.S. Plaintiff offered no objection, the motion was sustained and the lawsuit was dismissed.

Plaintiff then filed a claim for workmen’s compensation. By agreement the referee allowed total compensation in the sum of $3,683.75 — $35 per week for 82.25 weeks. The findings of the referee recite that the only dispute between the parties concerned the amount of credit on the award the City was entitled to receive by reason of the payment of $3,069 which it had made as wages after the injury. The defendant City contended it was entitled to be credited with the whole of this amount. Plaintiff asserted the credit should be only to the extent of the weekly compensation award or $35 for 45 weeks- — the period for which salary was paid- — a total of $1,575. The referee adopted plaintiff’s theory and gave credit for only $1,575. The City appealed to the Commission on this point alone. The Commission on July 28, 1959, ruled the full amount of $3,069 should be credited and entered an award in plaintiff’s favor for the net difference of $614.75. Section 287.-160, subd. 3, V.A.M.S. now provides and provided when this claim arose, that “The employer shall be entitled to credit for wages paid the employee after the injury, * * * It would seem that the Commission properly allowed credit for the full amount. In any event, neither party appealed from this holding.

Within thirty days after entry of the award plaintiff filed with the Commission a motion styled “Motion to be permitted to withdraw claim and be permitted to file under common law”. Claimant bottomed his motion upon a charge that the City falsely and fraudulently represented it was a self-insurer and covered by workmen’s compensation, whereas in truth and in fact it was not so covered at the time of plaintiff’s injury and in support of this allegation attached to the pleading copy of a letter from the office of the Division of Workmen’s Compensation. The letter referred to is one dated June 18, 1959, from the Director to Mr. Arthur B. Taylor, counsel for plaintiff. Therein it is stated that the City “filed acceptance of the law July 16, 1929, and that acceptance continues in force and effect. The City of Independence became a self-insurer but the authority was canceled on September 30, 1949”.

An opinion herein by this Court was handed down in October, 1960. A rehearing was granted partly at least on plaintiff’s complaint that the Court in its opinion, gave consideration to Commission records that were furnished to this Court directly which were not part of the formal record in this proceeding. That point is now disposed of by the following statement in reference thereto which appears in plaintiff’s supplemental brief: “We agree that the Court may consider them as if they had been introduced in evidence”.

On August 12, 1959, the Industrial Commission by a two to one vote, sustained plaintiff’s motion, vacated the award of July 28, 1959, and dismissed the claim for compensation. The chairman of the Commission dissented upon the stated ground that the employee had made a valid election of remedies and expressing the opinion that the motion to vacate and dismiss “smacks of sour grapes and should be overruled.”

From the record before us it is abundantly clear that the City of Independence by Ordinance No. 8844, passed June 17, 1930, elected to bring itself within the provisions of the Act. Section 3303 R.S.Mo., 1929, (now Section 287.090, subd. 2, V.A.M.S.). This compliance statute provided that a city might bring itself “within the provisions of this chapter by filing with the Commission notice of * * * election” and posting five notices of such election on its premises, and that any employee entering its service or remaining in such service thirty days after the posting of such notices should be presumed to have accepted this chapter unless he shall have filed with the Commission and his employer a written notice of rejection. No notice of rejection was ever filed. It is conceded that at this time the ■City qualified as to surety and otherwise as a self-insurer and was duly recognized as such by the department.

Among others, the following Rules, Regulations and Procedure of the Industrial Commission of Missouri were at all times herein mentioned in full force and effect. Rule 10-1: “Such self-insurance authority, if granted, will continue in force and effect until revoked by the Division upon notice and hearing on show-cause order or until withdrawn by the employer, except that upon failure of a self-insurer to continuously maintain security, hereinafter provided for, in the amount required by the Division, such self-insurance authority shall forthwith terminate without such notice and hearing”. Rule 10-11: “The privilege of self-insurance may be revoked by the Division of Workmen’s Compensation at any time upon reasonable notice and hearing and for good cause shown”. (Italics added.)

The real hone of contention here stems from an opinion by the Attorney General of Missouri, dated September 30, 1949, holding Section 287.090, V.A.M.S., which authorizes municipalities to elect to come under the Act to be unconstitutional. Based upon this opinion the attorney for the Commission addressed a letter dated November 17, 1949, to the City of Independence, declaring that “the attempt to bring your employees under the provisions of the Missouri Workmen’s Compensation Law by filing an acceptance of it with this Division is, and has always been, null and void, as is our authorization of you as a self-insurer”. This letter neither reports nor implies that any action had been taken by the Commission itself — its attorney alone was expressing his belief buttressed by the opinion of the Attorney General. No notice of any hearing as provided by the Commission’s rules was ever given. Nor did the letter purport to report any cancellation by the Commission for cause but rather advised that in the opinion of its attorney any attempt by municipalities to come under the Act was unconstitutional and was null and void by reason of the Attorney General’s opinion. On February 7, 1950- — 82 days later — having re-examined the matter, the Attorney General issued a second opinion holding exactly the opposite, that is, that it was permissible and constitutional for municipalities to “come under the Act”. This time the Director of the Division of Workmen’s Compensation followed the General and by letter dated February 24, 19S0, addressed to the City of Independence said: (1) That the opinion now ruled municipalities could accept the Act; (2) “Your status as an employer under the Workmen’s Compensation law, therefore is the same as before the opinion of September 30, 1949”. (Italics furnished.) (3) “Your authority as a self-insurer will be reinstated upon your prompt advice that you wish it to be, to become effective when you comply with the requirement of the minimum surety of $10,-000 by one of three ways: (1) An approved surety bond; (2) depositing in escrow approved securities; (3) depositing cash in escrow”. Counsel for the City declare these original letters are not now among the City records. There is no showing the City ever withdrew its surety, either in the form of securities or otherwise.

While the Attorney General’s opinions are entitled to great weight, are persuasive and should be followed, especially by state officials, boards and commissions, unless and until a proper court rules otherwise, such opinions do not become the law of the land. Nor do the interpretations placed thereon by an attorney for the Commission have such effect. In fact, the Commission itself can only do those things and make only those orders which the Act, or its own rules and regulations made pursuant thereto, authorize. Besides, the letters here, in addition to adopting the completely opposite opinions of the Attorney General — issued 82 days apart — added a completely inconsistent interpretation by declaring in the last letter (1) The City’s status was the same as before the first opinion, that is, covered by the Act, and (2) the City can again secure coverage only by reproviding security.

It is well understood that the Attorney General’s second opinion is now the prevailing view on this question. It is conceded and we find that the City duly elected to “come under the Act” and complied with all the prerequisite requirements as to surety and otherwise and this was the existing status when the Attorney General’s opinion of September 30, 1949 was issued. The opinion of the Attorney General that municipalities could not constitutionally be covered effected no change whatsoever in the legal status of the parties. Whatever cancellation the Commission’s attorney attempted to make was based solely on the Attorney General’s opinion. The letters clearly show on their face that both were prompted by that opinion and do not even suggest that any formal action thereon had been taken officially by the Commission. Certainly an order of this importance, canceling the Workmen’s Compensation coverage of Independence and in effect hundreds of other Missouri cities and affecting the rights of thousands of employees, requires formal action of record by the Commission and cannot result from the voicing of an opinion by its attorney. Even if the letters were based on action taken by the Commission itself on its own initiative, the same were ineffective because no notice was given as specifically required by its own rules (Rule 10, Sections 2 and 11, supra).

It follows, and it is our opinion that the City of Independence was at all times herein mentioned qualified as a self-insurer under the Act. This being so, the employee-plaintiff was not vested with a right of election between two separate remedies, that is, filing a claim under the Act or suing for damages at common law. It is therefore unnecessary to discuss or decide whether or not plaintiff’s acts in filing the common law action, then permitting it to be dismissed, filing a claim for compensation and pursuing it to final judgment, would in law amount to an election on his part to pursue that remedy exclusively and to the exclusion of a right to maintain an action under the common law.

The judgment of the Circuit Court is reversed and the cause remanded with directions that the cause be remanded to the Commission, and that the Commission be and it is hereby ordered and directed to reinstate its award of July 28, 1959.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.