author: CROSS, Judge.

text:
    KAMO ELECTRIC COOPERATIVE, INC., Appellant, v. William C. CUSHARD and Elizabeth Ruth Cushard, Respondents.
    No. 24640.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      Jack L. Rorschach, Vinita, Okl., John M. Belisle, Belisle, McNabb & Kyser, Butler, for appellant.
    E. J. Murphy, Butler, for respondents.
   CROSS, Judge.

By this proceeding plaintiff Kamo Electric Cooperative, Inc., has condemned a strip of land 100 feet wide and 2805 feet long across the 220 acre farm of defendants William C. Cushard and Elizabeth Ruth Cushard, as a perpetual right-of-way easement for purposes of constructing and maintaining an electric transmission line. The commissioners appointed by the court assessed defendants’ damages at $1,250.00 and defendants filed exceptions to the award. Upon trial by a jury in circuit court on the issue of how much the market value of defendants’ farm had been reduced by its subjection to the easement, the jury returned its verdict awarding defendants the sum of $4,800.00. Plaintiff has appealed.

Kamo’s principal assignments of error are (1) that the trial court erred in receiving and permitting the jury to consider evidence as to the “looks” and “unsightliness” of the transmission line “in assessing respondents’ damages” and in refusing an instruction withdrawing that element of damage from the jury’s consideration, and (2) that the trial court erred “in receiving and permitting the jury to consider the element of danger or hazard in assessing respondents’ damages” and in refusing an instruction withdrawing the element from the jury’s consideration.

Defendants’ farm contains 220 acres of well improved crop and pasture lands in Bates County, approximately 2 miles west of Passaic. At the present time, about half of the farm is in pasture land grazed by Angus cattle and the other half is under cultivation. The entire farm is tillable. It was described by Harlow Tip-ton, Kamo’s witness, as one of the top twenty farms around the area. The 100-foot wide right-of-way easement runs diagonally north and south clear across the farm for a total distance of slightly in excess of one-half mile. It traverses both pasture and crop fields. Upon and along the easement plaintiff has constructed a 69,000 volt electric transmission line consisting of eight single poles supporting crossarms, insulators, circuit breakers, wires, lightning arrestors and other necessary electric equipment. Minimum wire height is specified as 22 feet. The line is plainly visible from the public highway and is located within 600 feet of defendants’ farm improvements.

Defendants produced three real estate salesmen, H. H. Page, Glenn Cummings and Don Simpson, all of whom testified on the question at issue. Mr. Page testified that the farm had a value of $50,000.-00 prior to the construction of the line and a subsequent value of $45,000.00, thereby depreciating the property’s value by $5,-000.00. The witness stated that in arriving at his figures he took into consideration “the looks” of the transmission line as it affected the farm’s market value, and that 50% of the $5,000.00 depreciation was attributable to that factor. The remaining 50% was for “inconvenience” in farming and tillage. Mr. Page stated that the easement was located on the best part of the farm, was “most noticeable” when you drive up and down the highway, and that it is a “sore spot”. When asked what he took into consideration in arriving at “this $5000.00”, the witness answered: “A. The very fact that your easement goes diagonally across the best part of the farm is most noticeable when you drive up and down the highway, and I think it is a sore spot. In most of the places I will go along with an easement if it follows the fence lines, or if it follows the road, but when it goes diagonally across the field, and especially a farm, I think you have ruined that farm for sale. I wouldn’t buy one. * * * I think its very detrimental. A prospective buyer approaches a farm, or a piece of property, and the first impression he has of that property I think has a great deal to do with the price tag that he is going to put on that property. And with a high line in the present position that its in on this particular property, I think that most buyers, or it is my opinion the buyer would say, ‘Let’s go look at another farm’ ”.

Glenn Cummings valued the property at $49,500.00 before the taking and at $44,-000.00 after the appropriation. He attributed the $5,500.00 diminution in value to “nuisance value” and “unsightliness”— 65% or $3,750.00 to the former and 35% or $1750.00 to the latter. He testified on cross-examination as follows: “Q. Mr. Cummings, what did you take into consideration when you arrived at this figure of $5,500.00 difference in value before and after? A. Well, I was thinking mainly in terms of a resale of the property, or sale of the property, rather. People object to those things on their farm because of their nuisance value and looks, and it certainly didn’t do anything to improve the farm, its definitely a detriment to it. Q.. Well, you took into consideration that there is objections to people buying farms that has light poles across it? A. Yes, across a farming area of it.” When asked on cross-examination to enumerate the elements he had considered in arriving at his estimate of damage, Cummings stated there was “also possibly some danger from people being on a load of hay and so forth. up close to the line and possibly touching it”. Thereafter defendants’ counsel inquired, “You say you base some of this on danger”. Over Kamo’s objection the witness was permitted to answer: “There would be a danger involved here if he sold this hay, or loaded it in the field on trucks which would go seven or eight bales high and then a man standing on that loaded truck could conceivably reach that line, or touch it”.

Defendants’ witness Simpson testified that in his opinion the farm was worth $55,000.00 before the appropriation, that its value had been depreciated $5,000.00 by the taking and use of the easement and that the present value of the property was $50,000.00. In reference to the location of the easement he said, “* * * (Y)ou are taking the best part of his farm. If you was going to build a house, there is where you would build it. That’s hurting the whole thing”. In arriving at the figure of $5,000.00 the witness took into consideration the “beauty of the farm”, the fact that the transmission line “hurt the appearance of the farm” and the “inconvenience” it caused. He attributed 40% of the $5,000.00 figure, or $2,000.00, to the element of damage to the “looks” of the property and the other 60%, or $3,000.00, to the “inconvenience” feature. Further testifying that “the unsightly power lines” affected the fair market value of the property, the witness said he had tried to sell several farms that had power lines on them, but that “out of twenty buyers there is very few people that will buy a farm with lines through the heart of it”. His “personal experience” was further stated as follows: “Well, you have a client, and you drive up to a farm, and the best part of it is taken out by poles, right then he will say, he will make up his mind that you have got to drop that down, that farm down below market price. I have had them say ‘Let’s go on by, I don’t want to buy a farm with lines on it’ ”.

Following the testimony of defendants' witnesses Page, Cummings and Simpson, plaintiff moved the court to strike the whole of their testimony and, alternatively, to strike that portion which dealt with “looks” or “unsightliness”. Additionally, at the conclusion of witness Cummings’ testimony, plaintiff moved the court to strike the whole thereof or that portion dealing with “danger” or “hazard” resulting from the transmission lines. In each instance plaintiff’s motion to strike was refused by the court.

Defendant William C. Cushard testified that defendants’ farm had a value of $55,-000.00 before the right-of-way for the easement was taken, and a value of $48,-500.00 following the taking, making a total depreciation of $6,500.00.

Maurice Solomon, local manager of Osage Valley Electric Cooperative of Butler, called as a witness by defendants, testified in part as follows: “Q. Now, to be sure I understand you, Mr. Solomon, if Mr. Cushard went out to bale hay under this line, and he was stacking bales of hay, we will say, on a wagon, a truck or something, and had to drive under that line, assuming it looked like it was going to rain, he was hurrying, as a very qualified man would you say that that man might be in danger if he got within three feet of that line? A. No, I’d say he wouldn’t be in any danger. * * * I would say that in a case like this, probably, on a load of hay, I’d say he would have to get up to almost touching the line before, if it was on a clear day and everything. Q. Now, I am talking about it is getting cloudy, it looks like it is going to rain, he is in a hurry to put his hay up, he has got a man, or himself, up on top of a load of hay. Let’s say he has got a pitchfork in his hand. Do you mean to say he could just go up and touch that line and it wouldn’t hurt him. A. No, sir, he could not. Q. He couldn’t come within three feet of it, could he, Maurice, and not run the risk of getting killed on the spot? A. To be truthful, I wouldn’t want to come any closer than that. Q. You wouldn’t want to come within three feet of it? A. No.”

John T. McGuire and Harlow Tipton were produced as expert witnesses on Kamo’s behalf. Mr. McGuire testified defendants’ damages amounted to $1540.00. Mr. Tipton placed the damages at $2,000.00.

Kamo’s first point presents the question whether the “looks” or unsightliness of its electric power line built upon defendants’ farm may be considered by the jury as a compensable element of resultant damage. Necessarily attending this inquiry are the fundamental concepts that owners of private property taken or damaged for public use are entitled to “just compensation”, V.A.M.S., Const., Sec. 26, Art. 1; that the measure of their compensation will be fixed by a jury upon due and proper consideration of the effect the construction and operation of the public utility may have upon the property condemned; that resultant damages are compensable when direct and certain, and are such as may be reasonably expected to follow from the invasion of the premises by the condemnor and the consequent disturbance of the owners’ dominion, as contradistinguished from such items of damage as are purely remote, speculative and conjectural in their nature, and not fairly and reasonably to be expected. Missouri Power & Light Co. v. Creed, Mo.App., 32 S.W.2d 783. In State ex rel. N.W. Elec. Power Co-op. v. Waggoner, Mo.App., 319 S.W.2d 930, this court stated that “Generally, any evidence which is competent to prove the market value of the tract of land before and after the appropriation of the easement, unless barred by some recognized rule of evidence, is pertinent and admissible”. In this connection, it is pointed out by the court in Missouri Power & Light Co. v. Creed, supra, that the extent of damage occasioned by condemnation is necessarily to be established in large measure by the opinions of witnesses who show themselves to be acquainted both with the property condemned and the effect of the construction and operation of the public utility upon it.

Two distinctly divergent views are held by the courts of the various jurisdictions on whether the unsightliness of power transmission lines and appurtenances is an element of damage to be awarded when the property condemned for the power line easement consists of farm lands. Likewise, in two Missouri cases where the question was directly presented, the two courts expressed exactly opposite views, later to be noted. Kamo cites 124 A.L.R., p. 407 — Eminent Domain — Power Lines, and 5 Nichols on Eminent Domain, Sec. 16.103(2), p. 59. Both of those cited sources are inconclusive in that neither undertakes to state a positive rule. They amount to little more than tabulations of decisions showing (1) that unsightliness of power lines has not been considered as a compensable element of damage to farm lands in the jurisdictions of Illinois, Kansas, and California; (2) that a contrary view has been taken by the state courts of Ohio and Texas and federal courts in the jurisdictions of Tennessee and Kentucky; and (3) that in two Missouri cases, namely, Kamo Electric Cooperative, Inc. v. Brooks, Mo.App. (Springfield), 337 S.W.2d 444, and Union Electric Co. v. Simpson, Mo.App. (St. Louis), 371 S.W.2d 673, the respective courts have taken antithetical positions on the question.

On this point Kamo relies principally upon Kamo Electric Cooperative, Inc. v. Brooks, supra. There, as in the instant case, farm property was the subject of condemnation for an electric power transmission line easement. At the trial defendant Russell Brooks testified to the effect that every time he looked across “the bottom” he saw “that line there”, that he didn’t like the looks of the line, and that it damaged the value of “the whole farm”. Cross-examination of plaintiff’s witnesses by defendants as to whether the transmission line damaged the farm elicited negative answers. The trial court gave a written instruction telling the jury that in estimating their award of compensation they should not take into consideration any damage arising because the “looks” of the transmission line across the property would be detrimental to its value. On appeal the defendants challenged the instruction’s propriety, relying in the main upon (1) the Ohio case, Ohio Public Service Co. v. Dehring, 34 Ohio App. 532, 172 N.E. 448, wherein the court held that unsightliness of a transmission line on a condemned easement “was a proper element for the jury to consider in determining damage to the residue”; and (2) the Texas case, Texas Power & Light Co. v. Jones, Tex.Civ.App., 293 S.W. 885, where the court ruled to the same effect. Plaintiff cited cases from the jurisdiction of Illinois ruling to the effect that unsightliness of power lines is not a com-pensable element of damage to land used for agricultural purposes, and the Kansas case, United Power & Light Corp. of Kansas v. Murphy, 135 Kan. 100, 9 P.2d 658, wherein it was held that “unsightliness” as an element of damage in such instances was too remote and conjectural for consideration. Additionally, plaintiff cited the Missouri cases of State ex rel. Kansas City Power & Light Co. v. Gauld, 360 Mo. 795, 230 S.W.2d 850 and State ex rel. Northwestern Electric Power Cooperative, Inc. v. Waggoner, supra, neither of which had ruled “the issue”, as the court commented. The opinion points to no Missouri court directly ruling the question before it, but directs attention to Missouri Power & Light Co. v. John Hancock Mutual Life Ins. Co., Mo.App., 58 S.W.2d 321, stating that the case “strongly infers” that the appearance of a transmission line across a farm is an element of damage too remote and conjectural to be considered in fixing the depreciation. Although the court reversed the judgment for other alleged error, it ruled that the giving of the instruction withdrawing the “unsightliness” issue from the jury’s consideration was not error, using language as follows:

“It must be borne in mind that under the evidence the land to be affected in this case was not shown to be a tract of such description, adaptability and use as to make the element of ‘looks’ a matter of peculiar significance in its market value.
* * * * * *
“Had the property across which the transmission line was constructed and to be operated and maintained been shown to be an amusement park, cemetery, campus, institutional grounds, club grounds, school or hospital lawns, garden or a beautiful estate, or the like, the element of special damage to the ‘looks’ by the poles and wires of the transmission line might require a particular consideration of that element of damage. The property here involved was shown to be a farm, heretofore used for agricultural purposes and presently used for pasturage. The evidence does not show that the element of ‘looks’ as constituting damage to the farm by the easement is peculiar to the defendants’ farm nor that such element has any special application to the uses to which the property could thereafter be applied.
******
“There are numerous decisions in other states cited by plaintiff, and others noted in further research on the question at hand, and it appears that the weight of authority supports the view that what appears to the witnesses as a detriment to the market value of a farm property because of the ‘looks’ of a transmission line is too uncertain, speculative and conjectural to be considered as an element of damage. Accordingly, we hold that the giving of plaintiff’s Instruction No. 6 was not error.”

It may be implied from the above quoted rationale of the Brooks decision that the court believed there was insufficient evidence on which the jury could base a finding that unsightliness of the power line depreciated the market value of defendants’ farm property. However, the real impact of the decision is its effect in ruling as a matter of law that unsightliness of power lines constructed upon condemned farm lands may not be considered as an element of consequential damage in determining the owner’s entitlement to compensation. As a special rule of evidence, its application would necessarily exclude a specific class of real property from the general rule that “In estimating * * * the amount of depreciation in the value of the land, the owner is entitled to have the jury informed as to all those facts relating to the condition of the property which would naturally impress a person of ordinary prudence in negotiating for the purchase of the same”. City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149. Additional comment will be directed to the Brooks opinion later herein.

Defendants cite and rely upon Union Electric Co. v. Simpson, supra. As we have previously indicated, the court there ruled the instánt issue contrary to the result reached in the Brooks case. Although the question raised in the Brooks case was whether evidence of unsightliness should be presented to the jury, and in the Simpson case whether argument to the jury on the basis of such evidence should be permitted, the ultimate issue in both cases was essentially the same, i. e., whether the jury should take into consideration the unsightly effect of power lines in determining market values of appropriated farm lands. During the Simpson trial defendants’ counsel was permitted to argue to the jury, over plaintiff’s objection, to the effect that power lines are an “unsightly thing” to look at. On appeal the plaintiff charged the trial court with error in permitting the argument on the ground (among others) that “the aesthetic considerations could not conceivably have affected the fair, reasonable market value of the defendants’ real estate”. In support of this position plaintiff cited 124 A.L.R., p. 413, (the annotation previously referred to) and quoted from it as follows: “The unsightliness of power transmission lines, poles, and towers has been held not to be an element of damage to be awarded for the condemnation of the necessary land and right of way for such lines, in the following cases involving farm lands”. (Citing East St. Louis Light & P. Co. v. Cohen (1928), 333 Ill. 218, 164 N.E. 182; Illinois Power & L. Corp. v. Barnett (1930), 338 Ill. 499, 170 N.E. 717; United Power & L. Corp. v. Murphy (1932), 135 Kan. 100, 9 P.2d 658). Apparently rejecting the foregoing line of cases as authoritative on the question before it, the court observed as follows: “However, on this same page, the same authority states:

‘However, in Ohio Pub. Serv. Co. v. Dehring (1929) 34 Ohio App. 532, 172 N.E. 448, the court said that the unsightliness of towers and transmission lines could be considered by the jury in awarding damages for a taking of farm land for a right of way for power lines, for the reason that unsightliness might affect the value of the land.
‘And again, in Texas Power & L. Co. v. Jones, (1927 Tex.Civ.App.), 293 S.W. 885, it was said that if it were true, as alleged, that a power line with its poles, cross arms, wires, etc., is an unsightly object, disagreeable or repellent to sight, its presence would naturally have a tendency to affect adversely the market value of the land and that such fact could therefore be considered in determining the damages to be awarded in the condemnation proceedings’ ”.

Obviously adopting the view expressed by the Ohio and Texas courts, the court ruled the issue in defendants’ favor as follows: “We think the jury had the right to consider any effect the power lines may have had on the market value of the property, for we believe they are entitled to take into account every element and every effect resulting from the taking and from the structures installed, which would influence an intended purchaser’s estimate of the market value of the subject property”.

We believe that the Simpson opinion accords with true judicial standards governing the determination of fact issues in civil jury trials and that the Brooks decision is a departure from those standards insofar as it holds that “what appears to the witnesses as a detriment to the market value of a farm property because of the ‘looks’ of a transmission line is too uncertain, speculative and conjectural to be considered as an element of damage”. The court has thus undertaken to formulate an artificial rule of evidence that would categorize all farm lands as a special class of property having no susceptibility of damage from the cause in question, without taking into account the nature of the particular farm involved and in disregard of evidence tending to prove that the factor of unsightliness would depreciate its market value. The court based the foregoing result upon what it deemed to be “the weight of authority” after reviewing “numerous decisions in other states”. Our research in this direction does not lead us to the same conclusion. In our opinion the trend of authority is presently inclined to the view that the disfigurement of farms by unsightly power lines is a compensable element of damage. See Hicks v. United States, 6 Cir., 266 F.2d 515; United States ex rel. T. V. A. v. Easement in Logan County, Ky., 6 Cir., 336 F.2d 76. However, regardless of where the weight of authority lies, our decision of this issue will rest upon what we deem to be established principles of law attending the trial of fact issues by juries.

The sole issue for the jury to decide was how much the market value of defendants’ farm had been reduced by the taking and use of the easement. We have previously noted that it was defendants’ entitlement as owners of the property to have the jury informed as to all facts relating to the condition of the property which would naturally impress a person of ordinary prudence in negotiating for its purchase. City of St. Louis v. Paramount Shoe Mfg. Co., supra. In this connection it is further stated by the same authority that, “The use to which the property has been devoted, and its capability or special adaptation for such use, are of course primary elements to be taken into account; and anything which is directly injurious to such capability or special adaptation for a particular use, and thereby affects the market value of the property, is therefore competent to be shown as a legitimate factor in bringing about the total damage sustained for which it is contemplated that the owner shall receive just compensation”. Also see State ex rel. State Highway Commission v. Bruening, Mo.Sup., 326 S.W.2d 305; State ex rel. Highway Commission v. Malone, Mo.App., 45 S.W.2d 84; State ex rel. State Highway Commission v. Ridgway, Mo.App., 397 S.W.2d 744. Under that rule the jury in the instant case should have been permitted to consider whether unsightliness of the power line was “directly injurious” to defendants’ property, and thereby affected its market value, if there was substantial probative evidence adduced to support a finding to that effect. Under those circumstances that issue of fact would be solely for the jury to determine, without interference from the court. State ex rel. Witte Hardware Co. v. McElhinney, Mo. App., 100 S.W.2d 36. It is generally held there is sufficient evidence to warrant submission of an issue to the jury unless the facts in evidence and legitimate reasonable inferences to be drawn therefrom are so strongly against the issue submitted as to leave no room for reasonable minds to differ. Capriglione v. Southwestern Bell Telephone Co., Mo.Sup., 376 S.W.2d 205.

Earlier herein we have reviewed in detail the testimony of three witnesses who, by reason of their experience in the sale of real estate, were qualified to speak as experts on the subject of land values, particularly as they may be depreciated by the various factors of damage which result from condemnation of farms in the area involved. Their testimony is strongly persuasive that the appearance of defendants’ farm property was marred by Kamo’s power transmission line and that its market value was thereby materially diminished. This evidence is amply sufficient to support the issue to which it relates. We can not rule otherwise because we are not convinced that all fair minded, honest, impartial, reasonable men would agree that no damage arose from the factor of the power line’s unsightliness. Brandt v. Thompson, Mo.Sup., 252 S.W.2d 339. It is our observation of “that theoretical, reasonable, ordinary person”, of which the law speaks, that his estimate of a property’s value would be enhanced by its sightliness and lessened by anything that blemished it. The citizen’s view of this question is expressed in United States ex rel. T. V. A. v. Easement in Logan County, Ky., supra, as follows: “The law, in its expanding nature, applies rules of damages to property, in our crowded civilization, that were not considered as necessary by the public and the courts in days before invasion of privacy was thought to warrant damages, or child labor, to be a matter in which the public interest was involved. Noise, crowded conditions, and injury to aesthetic value of property, have found remedies in injunctive relief, zoning laws, and damages; and, at the present time, citizens are becoming more concerned than ever before in our history with these assaults upon health, quiet, and the beauty of farms, homes, communities, and the American countryside”. The trial court’s rulings complained of in defendants’ first point were not erroneous.

The next question presented is whether the jury should have been permitted to consider the potential of “danger or hazard” created by the power line in determining the amount of their award. Kamo insists that the trial court erred in receiving and refusing to strike the testimony of witness Cummings that he had taken into consideration the element of danger in arriving at his estimate of damage, and also in refusing to give Instruction No. 7 which told the jury that in arriving at their verdict they should not take into consideration damage which may arise from any danger or hazard that may have been created by the electric line. It is essentially Kamo’s argument that the fear of danger referred to by the witness was an unreasonable and unfounded one, and it should not have been considered by the jury. Defendants counter with argument that there is nothing speculative, remote or uncertain about the danger to a person in close proximity to the high voltage line, and that it would not be unusual for a person working in hay harvest on defendants’ farm to be in such a position.

The leading and most frequently cited Missouri case bearing on the question is Missouri Power & Light Co. v. Creed, supra. There, as in this case, the plaintiff utility appropriated a power line easement over a farm. The defendant owners asserted as an item affecting their entitlement to damages (among others) the possibility that the transmission line might break and come in contact with persons or stock and cause injury. Preliminarily the court acknowledged that “if there are risks and hazards which are special and peculiar to the land, and of a nature to be different from the damage which is incidental to any land over which the line might pass, evidence of such matters will be competent, such facts in the assessment of damages, and the jury will be permitted to consider not upon the theory that a recovery is being thereby allowed for speculative risks and contingencies which may never happen, but instead upon the theory that such matters in the nature of special damages affect the present market value of the land in the light of the use to which it may be put”. Commenting that defendants undoubtedly tried the case on that theory but that instead of confining their evidence within the limits of the rule they had introduced evidence “which invaded the realm of speculation, surmise and conjecture”, the court ruled that the possibility of damage arising from the breaking of power lines was too “conjectural and foreign to the field of legitimate inquiry” to be considered as an element of defendants’ damages, and that “the witnesses should not have been permitted to testify that such possibility was a source of damage to be considered, since their testimony on the record before us must have been founded purely upon a fear of electricity, rather than upon a consequence reasonably to be apprehended”. This ruling was adopted as the basis of decisions in State ex rel. Kansas City Power & Light Co. v. Gauld, 360 Mo. 795, 230 S. W.2d 850, and Missouri Power & Light Co. v. John Hancock Mutual Life Ins. Co., Mo. App., 58 S.W.2d 321, where the respective courts held that testimony that electric wires might break and become dangerous was purely speculative when the testimony showed that automatic circuit breakers would cut off the current if the wires broke. And, in Arkansas Missouri Power Co. v. Killian, 225 Mo.App. 454, 40 S.W.2d 730, evidence tending to show that wires on a transmission line carried a heavy voltage of electricity and that such voltage was dangerous to handle was held to be inadmissible. The court there said, “There was no evidence that the owner of this land would ever be required to handle this wire or that it was likely to break and fall, or, if it did, that the landowner would, at that particular time, be where he could be injured or that his live stock could be injured. That would be speculating on the possibilities of the future which cannot reasonably be expected to occur”.

In Kamo Electric Cooperative v. Dicke, Mo.App., 296 S.W.2d 905, decided by this court, defendant landowners contended that a power transmission line constructed on their farm by plaintiff utility constituted a special risk or hazard because there was danger that a fly line thrown by a person “fly fishing” in lakes located on the farm might come in contact with the high voltage power lines. It was urged by defendants that such “risk” or “hazard” should be considered by the jury as having a bearing on their determination of the “present” market value of the property. In considering the question we said:

“Speculative or remote elements of such damages are not to be considered. Missouri Power & Light Co. v. Creed, supra. It was said in Orgel on Valuation under Eminent Domain, Vol. 1, Section 61, page 280: ‘Electricity is an element of great potential danger, in the control and use of which great care is necessary, and it may be that persons having no actual knowledge of the practical operation and effect of such lines heavily charged with electricity may fear the dangers which they imagine exist because of the location of the line on the property in question. If this is so, and by reason of such fear the persons affected are not willing to buy the lands on which the line is constructed, the law cannot regard the depreciation created by such a cause as resting upon any substantial basis and cannot allow any compensation on account of any claimed depreciation which is due to mere 'fear founded in reality upon lack of knowledge and not justified by the facts’ ”. It was our conclusion that the claimed element of risk or hazard in the use of fishing lakes was too conjectural, speculative and remote to be considered as a factor materially affecting the market value of the farm. We ruled specifically (1) that the trial court committed prejudicial error by giving an instruction which permitted the jury to consider the claimed special risk and hazard in assessing defendants’ damages, and (2) that the trial court likewise erred in refusing to give an instruction withdrawing the element of risk and hazard from the jury’s consideration. For those errors the judgment was reversed and the cause remanded.
Supplementing Missouri decisions involving the instant issue, we additionally note general rules we consider pertinent thereto. The burden of proof in condemnation proceedings is on the landowner to show the extent of his damages, 11A Mo. D., Eminent Domain, 200. The general rules of evidence in civil actions are applicable in determining the sub-missibility of issues in the trial of condemnation proceedings. State v. Vorhof-Duenke Co., Mo.Sup., 366 S.W.2d 329. An issue of cause and effect is not submissible on behalf of a party who has the burden of proof on that issue where the evidence establishes no more than “an assurance of possibility”. Kimme v. Terminal R.R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W. 2d 561; also see O’Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, and cases digested in 27 Mo. D., Trial, ®=5139(1) (g). The United States Supreme Court has particularized that rule as it applies to elements affecting the market value of land taken for public use. In Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236, the court said: “Elements affecting value that depend on events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value — a thing to be condemned * * * in judicial ascertainment of truth”.

Taking into consideration Missouri case law on the issue before us and general rules that are applicable to the inquiry, it now appears that our problem is no more complex than to present the simple question: Has the evidence established that there is a reasonable probability of danger from the power line to persons working in its vicinity — or does it show that the existence of such a danger is a mere possibility ? The testimony of two witnesses produced by defendants bears fragmentarily on this question. The testimony of Glenn Cummings in its entirety, as it relates to the subject of danger, consists of two answers, which we here requote in full:

“and (there was) also possibly some danger from people being on a load of hay and so forth up close to the line and possibly touching it”.
****** “Well, there would be a danger involved here if he sold this hay, or loaded it in the field on trucks which would go seven or eight bales high and then a man standing on that loaded truck could conceivably reach that line, or touch it”. (Emphasis supplied.)

The testimony of Maurice Solomon in essential substance was to the effect only that on a clear day a man on a load of baled hay driven under the power lines would have to “get up to almost touching the line” to be in danger; that when the atmosphere is damp electric current will “arc” or “jump” farther than when it is dry; and that he personally (the witness) wouldn’t want to come “within three feet of it”. We regard the testimony of Solomon as having no greater force than that of Cummings who testified only that there was danger that some one might “possibly” or “conceivably” come in contact with the power line and suffer injury. Of course, it is possible that some one might load a truck or wagon so high with hay that if he stood on top of the hay he might come in contact with the power line. But, does this possibility establish a reasonable probability as required by Olson v. United States, supra, or an “assurance of possibility” as required by Kimme v. Terminal R. R. Ass’n, supra, that any one would do anything so reckless' and foolhardy? We think not. There is no claim that the power line is not in plain view and it is the common knowledge of all that 69,000 volts of electricity can be lethal if one comes in contact with it. We hold that the testimony of Cummings and Solomon presents only an imaginary possibility and therefore it is only conjecture and speculation which cannot legitimately be taken into account in assessing the defendants’ damages.

Consequently we rule that the trial court committed prejudicial error in permitting the jury to consider the element of danger or hazard in assessing defendants’ damages and in refusing Instruction No. 7 withdrawing that element from the jury’s consideration.

In a third point plaintiff complains that the trial court erred in failing to instruct the jury on the burden of proof. It is a fact, disclosed by the record, that the trial court omitted to give a burden of proof instruction. The record additionally shows that the plaintiff did not request such an instruction, and made no point of the court’s omission to instruct the jury in the motion for new trial. The question has been raised for the first time in plaintiff’s brief. The point will not be decided, however, in view of the necessity for retrial of the case because of the prejudicial error above noted.

The judgment is reversed and the cause is remanded.

HOWARD, P. J., BLAIR, J., and J. MORGAN DONELSON, Special Judge, concur.

      . East St. Louis Light & Power Co. v. Cohen, 333 HI. 218, 164 N.E. 182; Illinois Power & Light Corp. v. Barnett, 338 Ill. 499, 170 N.E. 717; Central Illinois Light Co. v. Nierstheimer, 26 H1.2d 136, 185 N.E.2d 841.

      . United Power & Light Corp. v. Murphy, 135 Kan. 100, 9 P.2d 658.

      . Sacramento and San Joaquin Drainage Dist. v. Reed, 215 Cal.App.2d 60, 29 Cal. Rptr. 847.

      . Ohio Public Service Co. v. Dehring, 34 Ohio App. 532,172 N.E. 448.

      . Texas Power & Light Co. v. Jones, Tex. Civ.App., 293 S.W. 885.

      . Hicks v. United States, 6 Cir., 266 F.2d 515.

      . United States ex rel. T. V. A. v. Easement in Logan County, Ky., 6 Cir., 336 F.2d 76.


source: Caselaw Access Project

author: BLAIR, Judge.

license: Public Domain

text:
    Eugene STEGALL, Appellant, v. Stephen L. WILSON, Respondent.
    No. 24642.
    Kansas City Court of Appeals. Missouri.
    June 6, 1967.

      Richard A. Rubins, Arthur J. Kase, Rubins, Kase & Rubins, Kansas City, for appellant.
    Donald L. Shughart, Shughart, Thomson ■& Kilroy, Kansas City, for respondent.
   BLAIR, Judge.

The plaintiff, Eugene Stegall, sued the ■defendant. Stephen L. Wilson, for $10,-000.00 for personal injuries he claimed he received as a result of a collision between his motor scooter and attached sidecar and defendant Wilson’s automobile. The verdict and judgment were for Wilson, the defendant, and Stegall, the plaintiff, appeals.

Stegall was employed as a delivery man by the Colgan Engraving Company in Kansas City. Colgan is located on the north side of Tenth Street between Central and Broadway Streets. Tenth Street runs east and west. It has two north lanes for westbound traffic and two south lanes for eastbound traffic. It also has one lane for parking on both the north and south sides of these traffic lanes. There is a parking lot adjacent to the Colgan building. There Stegall parked his motor scooter and attached sidecar when it was not in use for deliveries.

Stegall testified as follows: On the day of the collision he was ordered to deliver some packages. He placed them in the sidecar, started the scooter’s motor and proceeded south on the parking lot driveway to the north edge of Tenth Street and then stopped. He waited for traffic to clear. When it cleared, he proceeded south across the parking lane and the two traffic lanes, all on the north side of the street, and to the street’s center. As he crossed these lanes, he was traveling in a southeasterly direction, but at an angle so “slight” that he described his course from the parking lot to the center of the street as “almost point blank”. When he reached the center of the street he was traveling 4 or 5 miles an hour. Then he increased his speed to 8 or 9 miles an hour and drove into the eastbound right hand lane of the street and turned east. At that time he saw defendant Wilson’s automobile in the eastbound left lane adjacent to his own right lane standing still and headed east at a distance of 30 or 35 feet ahead of him. He testified “Q Then you did proceed into that — or on that right hand lane all the way up to where the collision occurred? A Yes, I did. Q And was the lane that you were in — or describe to the jury what there was in the lane that you were in on up to the corner ahead of you ? A There wasn’t anything in the lane I was in. His car — it’s a two lane going each way — his car was in the center (eastbound) lane next to the dividing line (of the street). I was in the far right (adjacent eastbound) lane and I continued on up the street in the far right lane and there was no cars in the lane "at all. Q Was there any cars in the lane ahead of Mr. Wilson? A No, there wasn’t. Q Was there any cars behind him? A No, there wasn’t. Q Could you see anything in the street that might obstruct or block the vision to either you or him? A No.” (Parentheses ours) As he proceeded directly east in his own lane to a point within 10 or IS feet of Wilson’s automobile, it was continuing to stand still in its own lane. On the instant, Wilson, without giving any sort of signal, began backing his automobile from his own left hand lane into Stegall’s right hand lane. At that moment Stegall’s speed was 10 or 12 miles an hour. The vehicles collided.

Wilson admitted he gave no signal of any sort before he began backing his automobile into Stegall’s lane. He admitted that he was wholly unaware of the presence of Stegall’s motor scooter on the street until immediately after the collision. He admitted that the right rear end of his automobile was 1 to 2 feet inside Stegall’s lane and that his vehicle was still moving backward at the time the vehicles collided. He stated the purpose of his backing maneuver was to cross Stegall’s lane and to enter the parking lane just beyond and park his automobile. Stegall testified that when Wilson started backing into his lane it was too late for him to take any precautionary measure to avoid the collision. There was no evidence concerning the distance in which the motor scooter moving 10 to 12 miles an hour could be stopped. There was no evidence concerning its maneuverability, except Stegall’s testimony that he could not swerve sharply to the right and away from Wilson’s backing automobile without danger of his scooter turning over and likely throwing him into Wilson’s path.

The trial court instructed the jury that it should find for Wilson, whether or not he was negligent, if it believed: First, that Stegall failed to keep a careful lookout; and second, that Stegall’s conduct, in failing to keep such lookout, was negligence; and third, that such negligence directly caused or contributed to cause any damage Stegall might have sustained. M.A.I. 28.01. Stegall asserts that there is no evidence in this record that he failed to keep a careful lookout and that this instruction was reversible error.

The burden rests on Wilson to point to substantial evidence in this record that Stegall was contributorily negligent by failing to keep such a lookout. Clark v. Howard, Mo.App., 273 S.W.2d 771, 774; 22 Mo.Digest, Negligence,. While sometimes contributory negligence may be inferred “from the attending surroundings and circumstances,” regardless of oral evidence to the contrary, See v. Kelly, Mo.App., 363 S.W.2d 213, 216, there are no such “attending surroundings and circumstances” in this record, standing alone, to justify a finding that Stegall was guilty of contributory negligence. Consequently resort can be had only to the oral evidence to determine this controversy. Concerning the collision only Stegall and Wilson testified. Wilson could shed no light on this question because he was wholly unaware of the presence of Stegall’s motor scooter on the street until immediately after the collision. Inevitably it results that Wilson’s only recourse is to place his reliance on Stegall’s testimony in his effort to convict Stegall of failing to keep a careful lookout. Chandler v. Mueller, Mo., 377 S.W.2d 288.

We have recited Stegall’s testimony fairly and it is all contrary to Wilson’s contentions. Summing .up his testimony, and viewing it objectively, it was in essence that he was assessing the whole area, including his lane, Wilson’s adjacent lane and the standstill position of Wilson’s automobile in that lane, from the time he entered his own lane and began proceeding east until the time Wilson suddenly began backing his automobile from his lane into Stegall’s lane. What we have said is not weighing the evidence but merely reciting the only relevant evidence bearing on the question before us. The only reasonable conclusion from this evidence is that Stegall was keeping a careful lookout ahead and laterally from the time he observed Wilson’s automobile standing in the adjacent lane at a distance of 30 or 35 feet ahead of him until the vehicles collided in Stegall’s lane.

Even though a motorist negligently fails to keep a careful lookout and to see another motorist and to realize that a collision will likely occur if he does not take some precautionary measure, this alone does not warrant a lookout instruction, unless in addition there is substantial evidence that he “had the means and ability to have so acted that a collision would have been avoided” if he had kept such a lookout. Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361, 367; Moore v. Ready Mix Concrete Co., Mo., 329 S.W.2d 14, 25; Creech v. Riss & Co., Mo., 285 S.W.2d 554, 563; Miller v. St. Louis Public Service Company, Mo., 389 S.W.2d 769. “Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signaling equipment with which to warn, or braking apparatus with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged to take effective action in avoidance.” Zalle v. Underwood, Mo., 372 S.W.2d 98, 102. Therefore negligent failure by Stegall to keep a careful lookout cannot be established in the absence of substantial evidence from which a jury could find that by exercising the highest degree of care he could have seen Wilson’s automobile moving backward in time thereafter to have taken some effective precautionary measure.

Stegall argues that there was no effective precautionary measure he could have taken when Wilson began backing into his lane. In his brief, Wilson agrees that Stegall was: “In the outside lane of traffic with the defendant’s automobile in the inside lane of traffic” and that “plaintiff was about ten to fifteen feet behind the defendant’s automobile” at the time he began backing from his lane into Stegall’s. He does not question Stegall’s speed at that time, 10 to 12 miles per hour. He adopts it. In his testimony he admits he was unaware of Stegall’s presence anywhere on the street until immediately after the collision. He admits he gave no signal of any sort or otherwise indicated that he intended to back from his lane into Stegall’s except the signal the beginning of his backing maneuver was calculated to convey. He admits he had backed 1 to 2 feet into Stegall’s lane at the time of the impact.

Stegall was where he had a right to be. He had a right to assume, as he began proceeding east in his own lane at 10 or 12 miles an hour within 30 or 35 feet behind Wilson, that Wilson would not suddenly and heedlessly back into his lane until Wilson signaled he was going to do so by suddenly beginning to back from his own lane into Stegall’s. 4 Mo.Digest, Automobiles, <®->206. Not until Wilson gave this signal did the vise of lookout law tighten on all that followed. Only from that instant on can we determine if Stegall, whether or not he was looking, and the evidence is that he was, had the ability and the means thereafter to avoid the collision that followed.

As we have observed, there was no evidence concerning the distance in which the motor scooter, then moving 10 to 12 miles an hour, could be stopped and none concerning its maneuverability, except Ste-gall’s testimony that he could not swerve sharply to the right and away from Wilson’s backing automobile without danger of his motor scooter turning over and likely throwing him into Wilson’s path. He testified that when Wilson started backing into his lane it was too late for him to do anything. Wilson puts forward no argument that Stegall could have done anything to avoid the collision after he started backing into Stegall’s lane when Stegall was only 10 to 15 feet behind him.

Giving Wilson the advantage of Stegall’s lower speed, 10 miles per hour, and the benefit of the maximum distance separating the two vehicles, 15 feet, Stegall was traveling at the rate of 14.6 feet per second and would have reached Wilson in just an infinitesimal fraction more than one second, i. e., that fraction of a second required for him to move the remaining .4 of one foot. All this assumes that Wilson’s vehicle was stationary. We take judicial notice that the average reaction time of an individual is J^ths of a second. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788. In J^ths of a second Stegall traveled 10.95 feet before he could react and act. This left him only 4.05 feet and only ¼⅛ of a second in which to take some precautionary measure that would avoid the collision. In making these calculations, we have ignored the fact that during the time Stegall was moving forward over the 15 foot space, Wilson was moving diagonally backward from inside his own lane and to a distance of 1 to 2 feet inside Stegall’s lane. This would further decrease the 4.05 feet figure. How much we need not calculate. We agree that the evidence in this record was wholly insufficient to warrant submitting failure to keep a careful lookout for there is no evidence that Stegall had the ability and means to take any action in avoidance of the collision when Wilson began his backing maneuver. The lookout instruction was reversible error.

Stegall contends that the trial court erred in excluding a “Vehicular Accident Report” of the Police Department of Kansas City, Missouri, which he offered as evidence. This exhibit was identified by Sergeant Brown, who was the official custodian of the records of the Kansas City Police Department. This officer testified that reports such as this one were “official business records” of the department, made by the investigating police officer immediately following an accident, and then delivered to him as custodian and thereafter kept by him as official custodian under his care and supervision as a part of the permanent records of the department. When this report was offered, counsel for Wilson objected to it in its entirety on the general ground that it was hearsay. The court sustained the objection that it was hearsay and stated as its reason that there was “no chance for cross examination of the party who made it”. Counsel for Stegall then advised the court that the record was being offered as one covered by “[T]he Uniform Business Records as Evidence Law”, Section 490.680, V.A.M.S., and that the very purpose of this Law was to create a statutory exception to the hearsay rule. Counsel’s statement of the purpose of the Law was correct beyond all doubt. Rossomanno v. Laclede Cab Co., Mo., 328 S.W.2d 677; State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654; Adler v. Ewing, Mo.App., 347 S.W.2d 396; Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666, 55 A.L.R.2d 1022. Nevertheless, the court allowed its ruling to stapd. Counsel for Wilson then added that the report was additionally inadmissible because “It also contains conclusions of the officer which are not subject to cross-examination and merely a conclusion of the investigating officer which would be completely improper without proper cross-examination”. Counsel for Stegall then said he desired to restrict his offer to only those portions of the report which (1) indicated that Stegall had been injured, (2) that Wilson had made a statement against his interest, and (3) the measurements which appeared on the diagram on the reverse side of the report. Counsel for Wilson objected “I make a general objection once again, Your Honor, to the portions he desires to introduce. They are conclusion on the part of the officer who did the investigation, both the plaintiff and the defendant who made these statements to this officer are in the court room. They can be asked the question whether or not they made any such statements, and have a chance, both of them, to deny such statements. So far. as the diagram itself, I would have no objection — * * * as to that portion of it being introduced if it (sic) was also supporting testimony from somebody that this is the true measurements”. (Emphasis supplied) The court sustained this obj ection. Although on this appeal counsel for Wilson seeks to assign additional objections to the report, he did not make them in the trial court and they will be disregarded. Thomas v. Wade, Mo., 361 S.W.2d 671, 675.

Section 490.680, V.A.M.S. provides that “A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the reqular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” Counsel for Wilson did not contend in.the trial court that the records of a police department are not within the contemplation of “The Uniform Business Records as Evidence Law”. He does not make that contention in this court. When counsel for Stegall advised the trial court that the ' record was being offered as one covered by that Law, the effect of the objections by counsel for Wilson was that nevertheless the report was objectionable because it was hearsay and contained conclusions. In this court he treats his objections as being governed by this Law and its judicial construction. Consequently, we see no need to consider the question whether the report is governed by this Law and for the purpose of our ruling we will treat it as if it were. Thomas v. Wade, Mo., 361 S.W.2d 671, 675.

There was no objection that the report failed to meet the requirements of Section 490.680 V.A.M.S. on the ground (1) that it was irrelevant, or (2) that the custodian did not testify to its identity and mode of preparation, or (3) that it was not made in the regular course of business at or near the time of the act, condition or event, or (4) that the trial court should hold the opinion that the sources of information, method and time of preparation were not such as to justify its admission. Nor did the trial court place its ruling on any of the statutory grounds. Its ruling was that the entire report was hearsay because there was “no chance for cross-examination of the party who made it”, and that the last and restricted offer made by counsel for Stegall consisted of couclusions.

As we have stated, counsel for Stegall was quite correct in saying to the court that the very purpose of the Law was to create a statutory exception to the hearsay rule. Therefore, on this record we rule that the exclusion of the report on the ground that it was hearsay was plainly erroneous. Likewise we rule on this record that the exclusion of the portions of the report which counsel for Stegall offered later on the ground that they contained conclusions was just as erroneous. Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 667-668, 55 A.L.R.2d 1022. No proper objection to the report was made by counsel for Wilson which warranted the refusal to permit counsel for Stegall to show by the report that it indicated Stegall had been injured. There was no contention that what the report contained in this respect was merely Stegall’s self-serving statement, or that his injury could not have been visible to the investigating officer, or that the report contained a conclusion on this subject that the officer was not qualified to express. If counsel for Wilson held any of these views he should have made them known to the trial court by specific objection, Thomas v. Wade, Mo., 361 S.W.2d 671, 675, and not relied on a general or blanket objection. We emphasize that by this we do not mean to hold that a police officer’s report which undertakes to diagnose the nature and extent of the injuries of a victim of a collision is admissible if a specific objection is made. There was no proper objection made to the part of the report which was said to contain a statement by Wilson against his own interest. Surely a statement by Wilson to the investigating officer against his own interest was admissible. Actual examination of the report shows that the statement made by Wilson was not a conclusion but a statement of facts. There was no proper objection to the measurements which appeared on the diagram on the reverse side of the report. They do not purport to be mere estimates of distances made by the officer but measurements he actually made. Surely if one actually measures a distance as being 10, 20 or 30 feet and states the measurement he made in feet, that statement is not inadmissible even though it is a conclusion. We have dealt only with the precise objections made in the trial court by counsel for Wilson. We have declined to deal with any objections he failed to make in the trial court or objections he raises for the first time in this court. Thomas v. Wade, Mo., 361 S.W.2d 671, 675.

For all of the reasons recited, the judgment is reversed and the cause is remanded for a new trial.

All concur.


author: HOWARD, Presiding Judge.

text:
    James SWEATMAN, Respondent, v. John W. McCLURE, Jr., Appellant.
    No. 24602.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      Terence C. Porter, Columbia, for appellant. Welliver, Porter & Cleaveland, Columbia, of counsel.
    Larry M. Woods, Columbia, for respondent. Sapp, Woods & Dannov, Columbia, of counsel.
   HOWARD, Presiding Judge.

This is a suit wherein plaintiff attempted to recover for personal injuries suffered when he, as a pedestrian, was run into by defendant’s automobile on Highway 63 North, in Columbia, Missouri. Trial to a jury resulted in a verdict for plaintiff in the amount of $6,000.00, which is within the jurisdiction of this court. The parties will be referred to as they appeared below.

Appellant’s only complaint concerns alleged defects of Instruction No. 3, which was plaintiff’s verdict directing instruction. In view of this limited issue a relatively brief summary of the evidence will suffice. On New Year’s Eve, December 31 1964, plaintiff had drunk several beers and his car ended up in the ditch on the west side of Highway 63 North, at the northern edge of Columbia, Missouri. After waiting in the car for some time for a wrecker, which did not arrive, plaintiff, shortly after midnight on January 1, 1965, got out of his car and started walking south toward a filling station at the intersection of Highway 63 and old Highway 40 in Columbia. It was a dark, wet night with drizzling rain. The pavement was wet and the shoulder muddy. Plaintiff was dressed all in black. His testimony was that he started out walking on the shoulder but it was so muddy that he kept slipping and sliding and had difficulty keeping his footing. He therefore moved over to the edge of the pavement and continued walking south with his left foot on the west edge of the pavement and his right foot in the mud on the shoulder. He observed the lights of a car approaching from the rear. He could see the light reflecting on his clothing and on the road. He glanced at the car but then faced forward and continued walking south as before, with one foot on the pavement and one foot in the mud of the shoulder, until he was struck from the rear by the car.

The car which struck plaintiff was driven by defendant John W. McClure, Jr. He testified that he did not see plaintiff until after he hit him and when plaintiff flew up over the hood of his car. Defendant pulled his car into an adjacent driveway and went back to see what he had hit. He discovered plaintiff lying on the pavement, roughly parallel to and about three feet east of the west edge of the pavement. Plaintiff had multiple fractures of the pelvis and various bruises and lacerations, but in view of the issue involved, we need not detail this aspect of the case.

Defendant alleges error in the giving of Instruction No. 3 “for the reason that it authorized a verdict for plaintiff based upon defendant’s failure to swerve his automobile, without requiring a finding of the basic fact that there was apparent danger of collision.”

Instruction No. 3 reads as follows:

“INSTRUCTION NO. 3

“Your verdict must be for plaintiff if you believe:

First, defendant either: failed to keep a careful lookout, or failed to swerve to the left, and
Second, defendant’s conduct, in any one or more of the respects submitted in paragraph First was negligent, and
Third, as a direct result of such negligence, plaintiff sustained damage,
Unless you believe plaintiff is not entitled to recover by reason of Instruction Number 6.
The term ‘negligence’ as used in this instruction means the failure to .use, the highest degree of care which means that degree of care that a very careful and prudent person would use under the same or similar circumstances.
Given 2-1-66
M.A.I. No. 17.02”

This instruction is in the form prescribed by MAI 17.02. This instruction, as it appears in the MAI handbook, covers lookout, excessive speed and driving on the wrong side of the road. It is defendant’s contention that the failure to swerve part of the instruction should have been given with the prerequisite finding of likelihood of collision as is provided for such matters in MAI 17.04, which instruction reads: “Defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have” stopped, swerved, slacken speed, etc. The notes on use of MAI 17.04 provide: “This is an optional submission of negligence which may be used as paragraph First of Verdict Directing 17.01 or as one of the alternate submissions in paragraph First of Verdict Directing 17.02.” This clearly shows that the drafters of MAI contemplated that such matters as stopping, swerving, slackening speed, sounding a warning etc. should be submitted in the form set out in 17.04 and not in the form appearing as 17.02. The reason for this direction is apparent from the Committee’s Comment where they cite Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, and quote therefrom a passage which points out there is no duty upon a defendant to take any precautionary or evasive action unless and until there is an apparent danger of collision.

Civil Rule 70.01(b), V.A.M.R. provides: “Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.” (Emphasis supplied).

It is apparent that in the present case Instruction 17.04 is the appropriate instruction and should have been used in this instance to submit to the jury the issue of whether or not defendant was negligent in failing to swerve his automobile. This is true even though the lookout part of the instruction was properly submitted in the form provided by MAI 17.02. See Hawkeye Security Insurance Co. v. Thomas Grain Fumigant Co., Mo.App., 407 S.W.2d 622, where we recently held that failure to require a finding of apparent danger of collision before finding negligent failure to take evasive action was error and that such error was prejudicial in the circumstances there disclosed. In the Hawkeye case, as in the case at bar, that part of the instruction covering failure to take evasive action was coupled with a lookout instruction which was proper as to form.

Our Supreme Court has recently made it quite clear that MAI instructions and the notes on use thereof are not merely suggestions, but are mandatory requirements and that failure to follow the instructions and the notes on use will constitute error as is pointed out in Rule 70.01(b) supra. In Peak v. W. T. Grant Company, Mo., 409 S.W.2d 58, the court said, 1. c. 60: “The basic theory concerning the use of MAI is that when an approved instruction is applicable it must be given to the exclusion of any other instruction on the same subject. In choosing appropriate instructions and modifications thereof it is essential that attorneys carefully consider the committee comments and follow the directions contained in ‘Notes on Use.’ As stated at page XXXIV in Vernon’s MAI, ‘The notes on use following each instruction dictate the circumstances under which the instruction may be used. These must be followed.’ Unless those directions are followed the use of the comparatively new MAI procedure cannot be successful.”

As the instruction was given in the case at bar, the jury was authorized to find a verdict for plaintiff if they found that defendant “failed to swerve to the left” and that such failure was negligent. As given, this instruction failed to include the requirement that, by the use of the highest degree of care, defendant could have known that there was a reasonable likelihood of collision, in time thereafter to have swerved. There is a great difference between these two instructions. They are not alternatives and one can not be used in lieu of the other at the option of the parties or the court.

This requirement is based upon substantive law, which stems from the case of Stakelback v. Neff, Mo.App., 13 S.W.2d 575. This case has been repeatedly followed and approved by our courts of appeal and Supreme Court down to the present time. See among the many cases Nydegger v. Mason, Mo., 315 S.W.2d 816, Mullen v. St. Louis Public Service Co., Mo., 389 S.W.2d 838 and Miller v. Greis, Mo., 396 S.W.2d 642. In the latter case, the Supreme Court said, 1. c. 646: “Instruction No. 1 erroneously authorizes a verdict for plaintiff based upon defendants’ failure to slow or slacken the speed of the truck or to warn of its approach, without requiring a finding of the basic fact that there was apparent danger of collision. The instruction hypothesized a factual situation in which plaintiff’s northbound Oldsmobile turned in a westerly direction at an intersection; defendants’ southbound truck was approaching and entering the intersection, and the Oldsmobile was in the path of the truck. The instruction assumed the existence of a duty on the part of the truck driver under this hypothesis to slow or slacken the speed of the truck or give warning of its approach, to enable the driver of the Oldsmobile to remove himself from the path of the truck. No such duty exists upon this bare framework of facts; no duty to take the precautions hypothesized unless there was apparent danger of a collision. The law does not impose upon the driver of a vehicle approaching and entering an intersection in which a vehicle is in its path the duty to slow down or issue a warning unless the use of the highest degree of care upon his part would lead him to believe that otherwise a collision would occur. He is not obliged to slacken speed or warn merely because he sees another automobile in the street ahead of him. There must be apparent danger of collision before he is required to act, and time thereafter to effectively take preventive action in avoidance. This fundamental factual basis for the existence of the duty was wholly omitted from the required findings. A finding that defendant Allen knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have slackened his speed and sounded a warning but failed to do so should have been incorporated in the verdict-directing instruction. M.A.I. No. 17.04.”

Similarly, Instruction 3 in the case at bar did not require the jury to find that defendant by the use of the highest degree of care could have discovered plaintiff’s presence and known that there was a reasonable likelihood of his striking plaintiff in time thereafter to have swerved his automobile and thereby avoided striking plaintiff. This finding is required by our substantive law and unless and until such finding is made the defendant can not be held to be negligent in failing to take evasive action because no duty arises until defendant knows, or by the use of the highest degree of care could know, of the danger in time to avoid it. No duty arises until the danger of collision is discovered, or is discoverable, in the use of the highest degree of care.

In the recent case of Hawkeye Security Insurance Co. v. Thomas Grain Fumigant Co., 407 S.W.2d 622, this court held that the use of the form set out in MAI 17.04 is mandatory and that absent the requirements contained in this instruction, the jury was not given the necessary guidance to enable them properly to determine the issue of defendant’s negligence in failing to swerve.

In the case at bar, plaintiff maintains that even if such instruction is erroneous, such error is not prejudicial because the defendant admitted in his testimony that he never did see plaintiff prior to hitting him. This misconceives the issue. The question here is whether or not defendant, in the exercise of the highest degree of care, could have known that there was a reasonable likelihood of striking plaintiff in time to have taken the evasive action of swerving his car and thus avoided hitting plaintiff. The cases cited by plaintiff wherein an admitted fact is omitted from the instruction do not rule this case. It was defendant’s theory of defense that plaintiff was not walking along the edge of the highway, as he testified, but in his drunken condition was staggering around either on the shoulder, or on the other side of the road, or had fallen down, and that he suddenly appeared in front of defendant and defendant did not have time to take any action. This theory was brought out in detail by the attorney for plaintiff on cross-examination. There was no objection to such testimony. It, together with a contention of contributory negligence on the part of plaintiff, constituted the main theory of defendant’s argument to the jury. Thus the issue which the instruction omitted was not conceded by the parties.

Defendant’s contention was that in the exercise of the highest degree of care, he could not have discovered plaintiff in time to have swerved and thereby avoided striking him. Defendant was entitled to have a jury determine this issue and the instruction as given failed to present it to the jury. The use of the proper instruction, MAI 17.04, would have submitted such issue to the jury. The instruction as given authorized the jury to find the defendant guilty for failing to swerve even if they did not find that defendant, in the exercise of the highest degree of care, could have known that there was a reasonable likelihood of striking plaintiff in time to avoid the accident.

We therefore conclude that the error in Instruction No. 3 was prejudicial to the rights of the defendant and requires that the judgment below be reversed and the case remanded for new trial. It is so ordered.

All concur.


author: PHIL H. COOK, Special Judge.

text:
    STATE ex rel. SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent, State ex rel. Eastern Missouri Telephone Company, Respondent, State ex rel. South Missouri Telephone Company, Respondent, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Appellant.
    Nos. 24453-24457.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.

      Wayne W. Waldo, Gen. Counsel, H. Burke Davis, Jefferson City, for appellant.
    John Mohler, St. Louis, for respondent Southwestern Bell Tel. Co.
    R. W. Hedrick, Jefferson City, for respondent Eastern Missouri Tel. Co.
    Hendren & Andrae, by John E. Burruss, Jr., Jefferson City, for respondent South Missouri Tel. Co.
   PHIL H. COOK, Special Judge.

All of these appeals from judgments of the Circuit Court of Cole County arise from orders of the Public Service Commission of Missouri, appellant herein, and involve the problem of telephone service to the communities of Bellflower and Liege in Montgomery County, Missouri.

Cases numbered 24,453, 24,454 and 24,-457 all arise from one order of the Public Service Commission. This order of the commission ordered respondent, Southwestern Bell Telephone Company, to provide telephone service in the “disputed area”. Southwestern Bell resisted this order in the Public Service Commission hearing, in the circuit court hearing, and in this appeal insists that it should not be compelled against its will to furnish this service. The record discloses that the cost to Southwestern Bell for constructing facilities necessary to render the telephone service required by the commission’s order would be approximately $134,000.00. From this same order of the commission, respondents, Eastern Missouri Telephone Company and South Missouri Telephone Company sought and obtained circuit court reviews. The circuit court reversed the commission order, and appeals by the Public Service Commission account for the above numbered appeals.

In case numbered 24,455, Eastern Missouri Telephone Company sought from the commission a certificate of convenience and necessity to furnish telephone service in this same “disputed area”. Likewise in case numbered 24,456, South Missouri Telephone Company requested authority to furnish telephone service in this same “disputed area”. The commission orders in these two cases denied the requests of these respondents. Subsequently the circuit court reversed and remanded these two cases for the stated reason, “that the denial of said certificates by said Commission was premised largely, if not exclusively, on the assumption that Southwestern Bell Telephone Company would serve the area in accordance with an Order of the Commission which was reversed and set aside by Order of this Court on September 20, 1965.”

By agreement these appeals have been consolidated for the purpose of briefing and argument. Since all of these appeals involve the question of which utility company shall have the right to furnish, or shall be required to furnish, the telephone service to the same “disputed area”, it is apparent that the cases are so interwoven that a final decision in one case could very well affect or govern the final decision in the other cases. It is also apparent that these five appeals may, and should be, ruled in one opinion. See Kitchen v. City of Clinton, Barrie v. Toller, 320 Mo. 569, 8 S.W. 2d 602, as to consolidation of cases, and jurisdiction in consolidated cases.

The appellant states, “as the amount in controversy on these appeals does not exceed the sum of $15,000.00 this court is vested with jurisdiction of this cause on appeal.” The respondents raise the jurisdictional issue in their briefs. Whether raised or not, it is our duty to transfer the cases to the Supreme Court if the amount in dispute exceeds $15,000.-00. Flynn v. First National Safe Deposit Company, Mo.App., 273 S.W.2d 756. In case of doubt as to jurisdictional amount, we should transfer the matter to the Supreme Court to set the question at rest by retaining or remanding the cause. Nickels v. Borgmeyer, Mo.App., 246 S.W. 2d 382.

If the appellant prevails, Southwestern Bell will be required to spend $134,000.00 against its will to comply with the commission order. In St. Louis County Water Company v. State Highway Commission, Mo., 386 S.W.2d 119, the Supreme Court said, “The St. Louis County Water Company, a public utility engaged in the business and in the area indicated by its name, sought judicial review of an order of the State Highway Commission directing the water company to relocate some of its facilities situated on state highway right-of-way. The circuit court affirmed the order of the commission. This appeal followed. We have jurisdiction because the cost to the water company of the relocation ordered would exceed $15,000.00.”

In the case of State ex rel. and to Use of Bolivar Telephone Company v. Public Service Commission, Mo., 357 S.W.2d 96, the Public Service Commission ordered the telephone company, against its will, at a cost of more than $300,000.00 to furnish telephone service to new areas. After a review in the circuit court and an appeal to the Supreme Court, the Supreme Court retained jurisdiction, and decided the case, obviously on the basis of the amount involved.

In the case now before us, the Public Service Commission ordered Southwestern Bell, against its will, at a cost of $134,000.00 to furnish telephone service to new areas. Accordingly, we rule that the amount in dispute is $134,000.00 and that these appeals are within the exclusive jurisdiction of the Supreme Court.

These appeals are therefore ordered transferred to the Supreme Court of Missouri.

HOWARD, J., concurs.

CROSS, P. J., and BLAIR, J., not participating.


text:
    Mary Ellen GREGG, Plaintiff-Respondent, v. Paul W. GREGG, Defendant-Appellant.
    No. 24574.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      John C. Russell, Kansas City, for appellant.
    C. William Kramer, Piedimonte & Cochran, Independence, for respondent.
   CROSS, Judge.

This suit for divorce was filed by plaintiff Mary Ellen Gregg. Her petition is grounded on allegations that her husband, the defendant Paul W. Gregg, subjected her to general indignities. Defendant's only pleading is in the nature of a general denial praying that plaintiff be denied a decree of divorce. He has sought no affirmative relief for himself. Trial on December 27, 1965 resulted in a judgment granting plaintiff a divorce and awarding her $75.00 per month alimony. Defendant timely filed a motion for a new trial which the trial court overruled.

Defendant gave notice of an appeal from the “Order Overruling Defendant’s Motion for a New Trial.” The action of the trial court in overruling a motion for a new trial is not an appealable order. The appeal should have been taken from the judgment and not from the order overruling the motion for new trial. Civil Rule 82.04, V.R.M.R. However, instead of dismissing the appeal we shall consider that defendant intended and in good faith attempted to appeal from a final judgment and that the notice of appeal inadvertently designated the order overruling the motion for a new trial, instead of the judgment of the court, as the judicial act from which the appeal was intended to be taken, and it will be so treated. State v. Kendrick, Mo.Sup., 383 S.W.2d 740; Triller v. Hellwegge, Mo. Sup., 374 S.W.2d 104.

Defendant’s appeal complaints are (1) that plaintiff did not prove herself to be the innocent and injured party “because of acts of infidelity” and (2) because the evidence “strongly indicated that at best, from plaintiff’s standpoint, both parties would be entitled to a divorce and, therefore, a divorce should not have been granted to plaintiff”. He does not contend that she lacked sufficient grounds for divorce and makes no complaint in respect of the allowance of alimony awarded her by the trial court. As provided by Civil Rule 73.01 (d) V.A.M.R., it is our duty to review the whole record in this nonjury case and reach our own conclusions both on the facts and the law. The judgment will not be set aside unless clearly erroneous, and we shall give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

The parties were married in October, 1951. At that time plaintiff had custody of six children born to her from two previous marriages. No children were born of her union with defendant. The course of their marriage was interrupted by a number of separations for periods of time varying from several months to five years. According to plaintiff’s testimony there were six separations. Defendant placed the number at twelve or thirteen. The longest period of separation was for approximately five years. Both parties testified that they were separated and living apart from each other from 1953 until 1958. Another separation occurred in 1963 some time prior to September. Plaintiff testified that she had then filed a suit for divorce in contemplation of which the parties executed a separation agreement. However, they effected reconciliation and lived together in marital relationship from September until December 25, 1963, but entered into final legal separation on that date. At the time of the trial plaintiff was 49 years old and defendant was 52.

There is evidence that plaintiff had associated with certain other men, and on occasion had “gone out” with them. This is admitted by plaintiff but she insists that her association with them was only during periods of separation from defendant and did not occur while living with him, and that she committed no act of infidelity with them. There is testimony that during the five year separation another woman lived with defendant for several years in his home at various places. Defendant so admits but claims the relationship was innocent. There is no evidence that either party was improperly associating with other persons after their reunion following the 1953-1958 separation.

To support her allegation of indignities, plaintiff testified that defendant used vile and vulgar language to her in the presence of her children; struck her on several occasions and also struck her daughter; that throughout the marriage defendant drank heavily and was habitually abusive to her and her children; that he continually accused her unjustly of being unfaithful to him, and embarrassed her in the presence of others by such accusations; and, that defendant did not financially support her, and provide her '"ivitfi necessary medical services. In that respect plaintiff testified that she had a condition of health impairment which arose from chronic mastoid infection. She had undergone three surgical operations for implantation of plastic ear drums in both ears and a wire arrangement in her right ear, and she still had to have surgery again on both ears. Her condition required special diet and regular medication. She testified that defendant failed and refused to buy the type of food required by her diet, and in respect to her medical bills she stated, “No, he hasn’t paid one nickel or bought me a nickel’s worth of medicine over the time I have been sick”, and that defendant has refused to provide funds for the two operations she will have to have. Her medical expenses were paid from the earnings of her own separate seasonal employment in the manufacture of ladies dresses. On occasions prior to the 1963 separation, following plaintiff’s visits to her doctor’s office, defendant falsely accused her of adultery with the doctor.

Defendant testified he knew of his wife’s association with other men during the 1953-1958 separation and that he had tried “to get her back”, but he denied that he accused her of adultery. He did testify, however, that he had talked with plaintiff about “these men” and that she told him she “had had relations with all except F_____C_____, * * * She told me that a number of times I would say in the last four or five years”. Defendant, stated that he did not know of any time plaintiff was unfaithful to him other than what she told him about “these men”. Other admissions made by defendant were: that he had become intoxicated around the house, that he had been abusive to plaintiff, that he had struck plaintiff’s daughter, that he had not paid for plaintiff’s operations, and that he was “a pretty jealous man”.

Although defendant’s two appeal points bear separate numbers and are couched in somewhat different language, they are counterparts in substance and express the same theme: that plaintiff has not shown herself to be an innocent party as well as an injured party and therefore is not entitled to a decree of divorce, irrespective of his own conduct toward her. Defendant argues that plaintiff’s own testimony indicates she was guilty of infidelity “by being in the company of other men in places where acts of intimacy could well have taken place”. Hence, defendant says, her conduct in that respect was such as to entitle him to a divorce and thereby to operate as a bar to adjudication that she was an innocent party. The foregoing submission invokes well established and often repeated rules of law. It is fundamental that a divorce may be granted only if the party seeking .it affirmatively shows that he is both an injured and innocent party; that the requirement of “innocence” means only that the applicant must show that he himself has not committed any offense which is cause for divorce; that the burden of showing such innocence is an affirmative one resting upon the party seeking divorce; and that where both parties have grounds for divorce, neither party is entitled to the relief. R_____ v. M_____, Mo.App., 383 S.W.2d 894. The degree of innocence a party must have to be entitled to a divorce does not mean that his or her conduct toward the spouse on all occasions must be letter perfect and above all reproach. The generally accepted rule is that the conduct of one party will not prevent him from being adjudged an innocent party unless it be such as to entitle the other party, prima facie, to a divorce.

Harwell v. Harwell, Mo.App., 355 S.W. 2d 137.

Defendant did not plead that plaintiff was guilty of adultery in her association with other men, and, in testifying, vehemently denied that he had so accused her. Even in his brief defendant refrains from using the word “adultery” in a specifically accusatory sense. The tenor of his complaint is that plaintiff in her association with other men had opportunity for “acts of intimacy”, and that her conduct in “keeping company” with them was a species of indignity causing him to undergo mental distress generated by suspicion that she may have committed adultery. We find merit in this contention.

In Herriford v. Herriford, 169 Mo.App., 641, 155 S.W. 855, the court said, “But the divorce is not sought on the ground of adultery, but on the ground of indignities. Even if no adultery is committed by fleshly act, still a wife has no right to so conduct herself as to implant a torturing suspicion of infidelity in the husband’s breast and lead him and the world to think adultery has been committed. Such conduct is of itself an indignity”. And in Straley v. Straley, 221 Mo.App., 1136, 298 S.W. 110, where a wife was going with and receiving visits from other men without the husband’s knowledge, this court said: “As before stated, while there is no testimony as to any immoral relation had between plaintiff and Rau, we do not think that plaintiff has conducted herself as an innocent party within the meaning of the law and is not entitled to a divorce”. Also see LeBeau v. LeBeau, Mo.App., 366 S.W.2d 515, and Ferguson v. Ferguson, Mo.App., 279 S.W. 189. Without specifically finding that plaintiff committed adultery, we conclude that her admitted relationships with other men were breaches of marital duty and constituted indignities which, unless remitted by subsequent conduct of the parties, would have afforded defendant grounds for divorce. Consequently, so long as defendant would have been entitled to a divorce for those causes (aside from considerations of his own innocence) plaintiff could not have been considered to be an innocent party.

However, it is urged by plaintiff that defendant has condoned any misconduct of which she has been guilty and that she has thereby been restored to the status of an innocent party. This contention is based upon the claimed legal effect of the reconciliation made by the parties in 1958 terminating their long separation which began in 1953, and their subsequent living together as husband and wife in conjugal relationship for the ensuing five years. The term “condonation” as used in the law of divorce means a forgiveness and pardon by one spouse of the other after full knowledge of past wrong or fault, on condition, express or implied, that the same will not be repeated. Cohabitation, with full knowledge of the offense, is strong evidence of condonation, increasing in probative force with the length of time continued. And in most cases when the cohabitation is long continued it will be taken as conclusive evidence, especially where the offense involved is conjugal infidelity. Weber v. Weber, 195 Mo.App. 126, 189 S.W. 577. Also see Stone v. Stone, Mo.App., 378 S. W.2d 824. Condonation is not an absolute forgiveness of marital misconduct, but is conditional. It is said to be an excuse for past offenses, upon the implied condition that the marriage obligations shall thereafter be regarded. A breach of that condition at once revives the original grievance as a cause for divorce. An offense which has been condoned may be revived, not only by a repetition or renewal of the same or similar offense, but also by the commission of other marital offenses subsequent to the condonation. O’Neil v. O’Neil, Mo.App., 264 S.W. 61.

The facts before us clearly establish that as a result of the 1958 reconciliation each of the parties condoned the marital offenses of the other party. The termination of their long separation by the resumption of the marriage relationship and cohabitation together for five years thereafter is very convincing, if not presumptive, evidence that both parties joined in extending mutual pardon and forgiveness, upon the implied condition that neither party would thereafter commit any offense against the other. Thereby plaintiff conditionally forgave defendant for his indignities and defendant conditionally forgave plaintiff for her indiscretions, all of which were known to him, as the evidence clearly shows. Plaintiff faithfully complied with the conditions inherent in condonation extended to her by defendant. He makes no charge against her and there is no evidence indicating that she had any association whatsoever with any other man after the reconciliation above noted, nor is there evidence of any other breach of marital duty on her part. Having observed the requirements of her “pardon” she was entitled to its benefits, namely, the extinguishment of defendant’s ground for divorce and the restoration of her status as an innocent party. As to the defendant, the evidence clearly shows failure on his part to fulfill the conditions upon which he was condoned by plaintiff, in that he thereafter continued to inflict indignities upon her by physical and verbal abuse and refused to provide her medicines, medical treatment, and necessary surgical services, all as he had previously done and as hereinabove set out, and wrongfully accused her of adultery with her own doctor. This breach of conditions by defendant revived all original grievances he had inflicted upon plaintiff as causes of complaint for divorce, Garton v. Garton, Mo.App., 246 S.W.2d 832. Such were the relative positions of the parties with respect to fault and innocence when they terminated their 1958-1963 reunion by another separation some time prior to September of the last named year. To summarize: plaintiff was then both an innocent and injured party. Defendant was neither innocent nor injured.

We have come to the final chapter of this turbulent marriage. As earlier mentioned, the parties effected one more reunion. In September of 1963 plaintiff, apparently having abandoned her plans to obtain a divorce, returned to the home and marriage bed of defendant. Thereafter the parties lived together and cohabited until the following Christmas day. Their final separation as man and wife, in a legal sense, occurred on that date. The only significance of this last reconciliation is that it once more brought into operation the law of condonation to conditionally forgive defendant his marital wrongs against plaintiff. Plaintiff, who had faithfully observed the conditions of her previous condonation, had been purged of her transgressions and was in no further need of defendant’s condonation to achieve the status of an innocent party. The pattern of defendant’s behavior toward plaintiff during this final period of reconciliation was essentially as it had been during the years from 1958 to 1963, in that he renewed his infliction of indignities upon plaintiff as he had previously done and as hereinabove set out. As a consequence, all of his previous wrongs against plaintiff again revived as valid grounds entitling her to a decree of divorce.

As anticlimax, plaintiff returned to defendant’s home for one night only in March, 1964. The visit resulted from plaintiff’s need to obtain her income tax form from defendant. It is not clear from the record that plaintiff obtained her tax form but it does appear that she stayed all night with defendant and that they were “intimate”. We believe the incident has no legal significance and has had no effect on the marital rights or status of the parties. The circumstances of the episode indicate that it was an unintended adventure resulting from propinquity of person and the opportunity it afforded. The evidence does not permit an inference that the “intimacy” of the parties was the result of, or was accompanied by, any intention or agreement on their part to resume the marriage. See Weber v. Weber, supra.

The judgment is affirmed.

HOWARD, P. J., BLAIR, J., and FRANK D. CONNETT, Jr., Special Judge, concur.