author: DEW, Special Commissioner.

text:
    Hollis ORR, Plaintiff-Respondent, v. Everett Eugene WILLIAMS and L. E. Beckman, d/b/a Beckman Chevrolet Company, Centralia, Missouri, Defendants-Appellants.
    No. 23933.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Warren D. Welliver and J. Turner Jones, Welliver, Porter & Cleaveland, Columbia, for defendants-appellants.
    Spencer, Hines & Petri, Columbia, for L. E. Beckman, defendant-appellant.
    Scott O. Wright and H. C. Willbrand, Brown, Wright & Willbrand, Columbia, for plaintiff-respondent.
   DEW, Special Commissioner.

The plaintiff sued to recover damages to his tractor and trailer caused when they were overturned upon contacting a steel cable stretched across the highway. The defendants had stretched the cable while engaged in pulling a stalled car from a ■ditch on the roadside. The jury rendered .a verdict for the plaintiff in the sum of $8,-735, and defendants have appealed.

The petition alleges that at all such times defendant Williams was the agent and employee of the defendant Beckman and acting in the scope of his employment; that plaintiff was on December 20, 1960, the owner of a 1956 International truck to which was attached a Keystone trailer owned by him and loaded with livestock; that plaintiff’s driver was driving said equipment south on Highway 63 near Clark, Missouri, on the afternoon of that date, and was exercising the highest degree of care in such operation; that he followed a highway snow plow which was pushing snow from the highway, which vehicle stopped, partially on the west shoulder of the highway and partially on the roadway; that plaintiff’s driver then pulled to the left around the standing snow plow and at that time saw a wrecker belonging to defendants sitting on the east shoulder of the highway headed south, and that as he approached to its immediate proximity he saw a steel cable stretched from the wrecker across the highway to a stalled car in a ditch on the other side of the highway.

The petition further alleged that upon seeing the cable stretched across the highway, plaintiff’s driver attempted to stop and avoid hitting it but was unable to stop; that his tractor-trailer struck the cable and was caused to turn around and turn over, greatly damaging both units and killing some and injuring others of the livestock.

It is charged in the petition that defendants were negligent in stretching a cable across the highway when they knew, or in the exercise of ordinary care should have known, that persons lawfully using the highway would be unable to see such obstruction; that defendants negligently failed to give proper warning to such persons traveling the highway when they knew, or in the exercise of the highest degree of care should have known, that motor vehicles might come in contact with the cable; that they negligently failed to barricade the traveled portion of the highway to prevent vehicles from coming in contact with said obstruction; that defendants failed to place any notice or warning of such obstruction; that defendants obstructed the highway in violation of Section 229.-150 RSMo 1959, V.A.M.S. The petition avers that as a result of such negligence plaintiff’s tractor and trailer were torn and damaged; that he was required to expend additional funds to deliver the livestock to its destination; that he lost the use of said equipment from December 20, 1960 to February 14, 1961; that said damages and other losses amounted to a total of $9,000, for which judgment was prayed.

Defendants’ answer denied the allegations of negligence on their part and pleaded contributory negligence of the plaintiff.

At the trial the plaintiff called as his first witness the defendant Williams. According to that witness he was in the employ of defendant Beckman on the day of the accident. Among other duties he operated Beckman’s wrecking outfit. On the trip in question he could not say how many fuses he took along to use while removing the stalled car at the place of the accident, nor how many lamps or fire pots he had. He did not know if he had any red warning flags in his truck. He drove part of the way to the scene at about 30 or 35 miles per hour. He had used all of his flares in removing another car that same afternoon. He had difficulty in getting traction to pull the car at the place of plaintiff’s accident. The stalled car was in a ditch on the shoulder of the west side of the roadway and he placed the wrecker on the east shoulder facing south with a cable attached to the boom and extending to and attached to the stalled car on the west shoulder. The lamp pots would not light and could not have been seen if lighted.

The witness testified that the boom on his wrecker was extended toward the north at a 45 degree angle and had a red light on it near the cab. He said he saw a snow plow stop north of the scene but did not ask the driver for any signals or warning devices, flares or flags, such as he had forgotten to bring along. He did not do any signaling of traffic. He was busy operating the winch on the wrecker and his helper was busy holding the wrecker from slipping. The northbound lane approaching the wrecker was open and a part of the southbound lane. The cable when stretched across the highway was five feet high at the wrecker and about one foot high at the west side of the roadway. The cable was about the size of “your little finger” and greasy with no flags or markers on it. At the time the cable was tightened across the highway the witness said he heard a truck horn blow. He was facing southwesterly, watching the stalled car across the highway and working the levers. When he heard the horn he “hit” the lever to release the cable, was unable to get it released and “I just ran”. He saw the tractor turn, go across the ditch and turn over. He did not see the tractor hit the cable, but could see only a scratch on the cab. The tractor was lying on the east side of the highway and the trailer was across the ditch and over in the field. In it were hogs and cattle. The driver of the stalled car meanwhile remained in the car trying to guide it out of the ditch as it was being pulled.

Plaintiff’s driver, Walter Adams, testified that he was driving plaintiff’s 220 International 1957 gas truck and Diesel trailer involved in the accident. His testimony tended to show that he was hauling half a load of hogs and half a load of cattle from Salisbury to St. Louis, Missouri. The stock belonged to the farmers for whom plaintiff had hauled before. The highways were icy. On Highway 63 he reached a level strip of road going south and he traveled at 30, 35 or 40 miles per hour. He had seen snow plows at work on the highway that morning and was keeping a mile or a mile and a quarter behind one on Highway 63. As he approached the place where the accident later occurred he could see that the snow plow had stopped, half on the roadway and half on the west shoulder. This was about 200 feet north of where defendants’ wrecker was later seen by him. He said that when within about three quarters of a mile of the standing snow plow and while traveling about 30 or 35 miles per hour he saw a white object on the east side of the highway that looked to him like a “pick-up”. When about half of a quarter of a mile distant he could see that it was a wrecker. He could not see any car on the west side of the highway because of the standing snow plow nearby. He saw no lights on the wrecker nor any flares or warning signals and saw nobody in sight.

Witness Adams further testified that under the above conditions and seeing no traffic approaching from the south, he sounded his horn, pulled out and around the snow plow and then saw the steel cable stretched across the highway. He applied his brakes, his hand control and foot brake. The trailer went off the roadway and turned over and the tractor hit the cable on the driver’s side of the cab about five feet high and just below the headlight on the other side. The contact was so strong that it broke the bumper off the stalled car on the other side of the highway to which it was attached. The tractor was turned over on its left side, its frame was sprung on that side, and it was bent where the cable had hit it.

Witness Adams testified further that after the collision he got out of the tractor as best he could; that the hogs were lying all over each other; that he could not release the cattle because there were no fences in the area. Many of the hogs were dead. It was later found necessary to cut a hole in the top of the trailer to get the stock out. The cable was black and greasy. The day was clear, the sun was shining, and the highway covered with ice and snow.

On cross-examination witness Adams said that he could tell from a distance of one to three-fourths of a mile that the vehicle ahead of him on the left was a wrecker, that he saw the snow plow had three lights across the back and an amber light flashing on the top. He could not see any cable. He said he could stop his tractor and trailer under the existing conditions in about 400 or 450 feet. He said he saw no red lights on the wrecker. He immediately applied his brakes when he saw the cable stretching across the roadway. He had lessened his speed when he first saw the white object which appeared to be a pickup truck, but otherwise kept his 55,000 pound rig moving, since he saw no one around and the way was clear around the standing snow plow.

The plaintiff testified that he was in the livestock business and operated a hog-buying market at Salisbury, Missouri; that he delivered hogs bought by him on a commission basis to destinations ordered by his boss; that the business is a seasonable one, and is at its best in November, December and January; that he hauled at least five truck loads a week with his tractor-trailer to places such as Muncie, Indiana, and St. Louis, Missouri; that he owns his own business, has four employees, does his own bookkeeping, banking and payment of expenses. He said he had five trucks at the time of the accident, some of them small, but none others that were capable of long trips; that he had made about five trips a week with the damaged tractor-trailer; that he had for years turned business away at times because his trucks were tied up.

Plaintiff testified that Walter Adams had worked for him about a year, driving trucks such as the one involved in the accident; that he had known him since he was old enough to drive a car; that he ordered Adams to take the load to St. Louis as described in the evidence; that its weight was about 28,000 pounds, half cattle and half hogs, the hogs double-decked in the front half of the trailer. He stated that he had just bought the trailer 17 days before the accident and that it was in good condition before that occurrence. He said that when notified of the wreck he and two other drivers went to the scene with two extra trucks, another trailer and a small pickup truck. There he saw the trailer and truck lying on their left sides on the east side of the road and the tractor blocking the northbound lane, the trailer being still attached to the tractor and reaching across the ditch and into a field. Two state troopers had arrived. A bigger wrecker had been called from Moberly.

Testifying further the plaintiff said that the rear doors of the trailer were all jammed and could not be opened; boards were broken and the stock all jammed together; that an opening had to be made in the roof of the trailer to get out the stock. Two of the other trucks were taken to the adjoining field, backed up to the trailer and a portable chute was set up over which such of the cattle as could walk were loaded into the other trucks. One dead animal was left in the trailer. Such of the hogs as were alive were loaded into another truck. The dead hogs were left in the trailer. The large wrecker then turned the trailer and truck back on their wheels. They were then pulled down the highway to Clark.

The plaintiff further stated that the truck was purchased for a special reason, namely, that it had a sleeper cab which provided sleeping accommodations for an extra driver for 24 hour running under I.C.C. regulations; that they are built on order; that after the wreck it was taken to Kansas City ■for repair. He said he could have kept it loaded every day if he had it on hand while being repaired. He had no other trucks that could make long distance hauls. He turned down business while the repairs were being made. He said from his experience in business and buying trucks of the kind involved, the reasonable market value of it immediately before the accident was $2,500. After the accident he found the frame, the back housing, one gas tank and the fifth wheel mounting all damaged, and the front of the cab creased completely across by the cable. In his opinion the reasonable market value of the tractor immediately after the accident was $800. He said the sides of the trailer were mashed in on one side and mashed out on the other; that the frame was in a hook; one of the rear axles was bent, the roof was crumpled and buckled and a hole had to be cut in it to remove the stock. The nose of the trailer was shoved backwards; the floor itself was buckled and “busted”; the dolly support was bent sideways and the rear doors jammed. He said its reasonable market value immediately before the accident was $6,000 and immediately afterwards, $1725.

The plaintiff stated in his testimony that after the accident the tractor was towed to Kansas City to a framing company for repairs and the trailer was pulled there to the Keystone Trailer Company for repairs; that from his own personal knowledge the operation of the tractor-trailer grossed him about $685 per week; that such estimate was based on his personal knowledge of past business over several years prior to and since the accident; that the weekly operating cost was about $340; that his net profit from the operation of the outfit was $340 or $350 per week; that the outfit was out of operation for eight weeks from December 20 to February 14; that the time for repairs was reasonable because the body of the truck could not be repaired until the frame had been straightened, after which the unit had to be turned over to the body company for body work. The time taken for his outfit repairs was reasonable in his opinion. He said his total loss of use of the tractor was $2800 to $2850. He said he did not have the trailer repaired but did have an estimate of the cost of the same, $2648.55. He bought a new trailer, built to serve his purposes, within five weeks, but could not use it because he could not get his repaired tractor for eight weeks. He said there were possibly places to lease tractors, but that he did not try to lease one, but gave business away while his truck was tied up.

As witness for the defendant, the driver of the snow plow testified that he noticed from a mile’s distance the red light on defendants’ wrecker although he could not tell until he got closer which vehicle it was on; that he stopped when a motor grader ahead of him had gone on as the cable was lowered for its driver; that he remained standing so that the grader could get more distance between them; that he signaled to the wreckers to proceed with their job of removing the stalled car from the ditch on the west side of the roadway. His snow plow was standing half on the roadway and half on the west shoulder and about ISO feet north of the wrecker and stalled car. He said he watched the wrecker working and he occasionally looked in his rear vision mirror to see if any traffic was approaching from the north. He said the cable was stretched across the highway and he could see it before he began to stop. He had been traveling 25 or 30 miles per hour, intending to let the grader make further distance ahead of him.

The driver of the snow plow further testified that he saw the man in the stalled car get out and run and he (witness) looked and saw plaintiff’s tractor-trailer approaching from the north; that he stepped out of the snow plow and signaled a couple of times and he could hear the motor of the approaching tractor. He said he did not hear the driver shut down his motor but saw him pull toward the center of the road and he (witness) ran behind his snow plow. The driver of the tractor-trailer, he said, then shut off his motor and locked his wheels. The tractor began to swerve, went past the snow plow and the rear end of the trailer turned over on its left side, pulling the tractor towards the ditch where it, too, turned over. He stated that he could not tell whether the tractor turned over before it reached the cable or afterwards because his view of the wrecker was cut off by the plaintiff’s tractor-trailer. The witness said that on his own vehicle standing ISO feet to the north, he had two tail lights seven feet above the ground; that the wreckers did not ask him to warn traffic or to supply any flares for that purpose. He saw no flares at the scene.

A traffic officer testified for defendants and described the position of the various vehicles present. He said the plaintiff’s tractor and trailer were lying on their left sides on the east side of the highway. He said the road was packed with snow and ice for a considerable distance each way from the scene of the accident; that the driver of the tractor-trailer said to him: “I was coming down the road. I seen the vehicle setting there and there was nobody flagging. I honked and started through and then I seen the cable across the road”. The witness said he saw a red flashing light on the wrecker. He said the weather was partly cloudy at the time.

The defendants first contend that the court erred in refusing to sustain their motion for a directed verdict submitted on the ground that plaintiff failed to make a submissible case of negligence. In considering this point we must view the evidence in the light most favorable to the plaintiff in whose favor the verdict was rendered and give him the benefit of all favorable inferences therefrom, disregarding such evidence of the defendants that does not aid the plaintiff. Hale v. Kansas City Southern Ry. Co., Mo., 363 S.W.2d 542; Erbes v. Union Electric Co., Mo., 353 S.W.2d 659. The defendants point out contradictions in the evidence as to whether or not certain warnings were given plaintiff’s driver at the place of the accident, most of which the driver testified he did not see, but which defendants’ witnesses said existed. Defendants assert that such warnings as their witnesses said existed were admittedly present since plaintiff’s driver simply said he did not see them. We think the fact that he did not see them on a level highway in broad daylight is some evidence that they were not present.

Under the same point the defendants argue that because of such testimony as to warnings, the issue, therefore, was whether the defendants were merely blocking the highway in violation of the statutes establishing the Rules of the Road in Missouri. Chapter 304 RSMo 1959, V.A.M.S. Assuming that such was the only issue of negligence, they maintain that defendants’ outfit was a privately owned wrecker and therefore was an “emergency vehicle” exempted from the Rules of the Road set forth in such statutes and as such, while performing emergency service, could “park -or stand irrespective of the provisions of Sections 304.014 to 304.026”. As to such contention it must be borne in mind that in the first place, this case was not submitted on the theory of mere blocking of the highway, but on a claim of negligently stretching a steel cable across a public highway without adequate warning, resulting in plaintiff’s damage. Secondly, while the wrecker in the instant case, being privately owned, may be classed as an “emergency vehicle” under Section 304.022, it is exempted under that section from the Rules of the Road as to parking or standing, but that section does not exempt such operators from liability for stretching a steel cable over and across a public highway without adequate warning thereof to travelers.

Defendants make the further point that the court erred in refusing their motion for a directed verdict because the plaintiff’s agent was guilty of contributory negligence as a matter of law. Such action by the court is authorized in this state under circumstances in evidence which leave no room for any other reasonable inference than the plaintiff’s contributory negligence. Pipes v. Mo. Pac. Ry. Co., Mo., 338 S.W.2d 30. The evidence in the present case, however, is such that we cannot declare as a matter of law that plaintiff’s driver was negligent in such respect as to contribute to the cause of the accident. The issue was submitted to the jury on substantial evidence and determined in plaintiff’s favor. We believe there is no sufficient evidence to disturb that finding. In our opinion the court did not err in refusing defendants’ motion for a directed verdict.

Defendants urge that the plaintiff’s Instruction No. 1 assumes but does not require the jury to find certain essential disputed facts, and that it is argumentative and ambiguous. They direct our attention to-the part of the instruction reading: “and if you find and believe from the evidence that the defendant Everett Eugene Williams knew, or in the exercise of ordinary care should have known, that said cable stretched across the roadway was of such character as to be dangerous to travelers thereon and difficult for operators of motor vehicles to see and distinguish, if you so find, * * * It is claimed that such language assumes the element of dangerousness and only requires the jury to find if the defendants had or should have had knowledge of such danger. This charge is without foundation because the jury is specifically required to find the element of dangerousness and the difficulty, if any, of seeing the obstruction, by the concluding words "if you so find". (Italics supplied). The point is overruled.

In the defendants’ next contention that the plaintiff’s Instruction No. 1 is argumentative, they refer to the language that Everett Eugene Williams “failed to place any adequate or proper notice, signal or warning to warn travelers on the highway of the presence of the obstruction * * * It is claimed that there was evidence of a red light on the wrecker and an eight inch spotlight on the parked snow plow; that plaintiff’s driver admitted that he first saw the truck and the wrecker when at a distance of three-quarters of a mile. It is likewise argued that because of such evidence the words “adequate notice” were indefinite and argumentative. There was evidence, however, that the red light was on a wrecker which was located not on the highway, but entirely off the traveled portion of the highway; that the wrecker appeared as a white pickup truck; that the red light was on the boom of the wrecker and near the cab; that the boom was set at a 45 degree angle and the red light was difficult to be seen from the plaintiff’s tractor-trailer ; that the light on the snow plow was on the same side of the highway as was the tractor-trailer. It was a proper question for the jury to determine whether there was adequate or proper notice and warning, to operators of tractor-trailers on the highway, of a suspended steel cable across the roadway ahead to enable them to see and to avoid such obstruction. Likewise, the terms “adequate or proper” were sufficiently clear and fully informed the jury of the question to be determined.

Defendants further claim that it was error to admit in evidence plaintiff’s testimony as to loss of profits by reason of being deprived of the use of his tractor-trailer during the period of repairs to the tractor since the same was irrelevant, incompetent and prejudicial, and that the court erred in refusing to grant defendants a remittitur on that account. It is charged that evidence of loss of use was inadmissible in the absence of proof that a rental unit was unavailable; that evidence of loss of the use of a single truck was not relevant, the proof necessary being the loss of profits to plaintiff’s entire business; that such evidence called for mere conclusion of the jury. The plaintiff challenges these points of error not only on their merits, but first on the right of defendants to submit the same for review on this appeal for the reason that they were not properly preserved for review. Plaintiff cites and relies on Supreme Court Rule 83.13(a), V.A.M.R. requiring allegations of error in a civil case, in order to be preserved for review on appeal to be presented to or expressly decided by the trial court. See also Rule 79.03. It is urged by the plaintiff that no valid objection was made at the trial to the evidence pertaining to the plaintiff’s loss of profits, nor was any such ground contained in defendants’ motion for new trial.

We believe the objection to this line of testimony was preserved for review. The first mention of loss of use of the tractor-trailer occurred when plaintiff was asked by his counsel what “the outfit grossed you in dollars per week?” Objection was then made that such was not a proper element of damages, was speculative, and that there was “no showing that plaintiff tried to get another vehicle to replace the one damaged”. This obj ection was overruled and certain further questions on the subj ect ensued as to which general or incomplete objections were made. Among the grounds assigned in defendants’ motion for a new trial is an objection to the submission to the jury of an element of damages consisting of a loss of use of the vehicles; and that such damage was not recoverable because plaintiff’s own evidence was that the outfit was destroyed.

The record does not disclose any request for a remittitur on account of any damages claimed for loss of use of the vehicles nor any evidence of a total destruction of the units of plaintiff’s tractor-trailer.

In respect to the measure of damages through negligence to personal property used in business there are two classifications of such property to be considered. One is property that has been entirely destroyed by the negligence complained of, in which class a recovery of the full value of the destroyed chattel excludes recovery for loss of use of same. The other class is composed of property that has not been destroyed, as in the instant case, but merely damaged, permitting recovery of the value of the loss of the use of such property for the reasonable period during which the owner is deprived of the damaged chattel for repairs. In such latter class the measure of damages is the extent of the injuries to the property, plus the value of its use during a proper period for repairs. It is stated in 25 C.J.S. Damages § 83, page 600: “Where through an injury to property plaintiff is temporarily deprived of its use, the measure of his damage is the amount of the injury to the property, together with the value of its use during the time required by the exercise of proper diligence to secure repair. On the other hand, one who recovers the full value of a chattel destroyed through the negligence of another ordinarily cannot recover for the value of the use thereof after it was destroyed”.

The general rule fixing the proper measure of damages for injuries to one’s personal property by others is well established, namely, the difference between the reasonable market value immediately before and immediately after the injury. Hall v. Clark, Mo., 298 S.W.2d 344; Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250, 255.

The rule has its exceptions and may include other elements. See Brown v. Zorn, Mo.App., 275 S.W. 572, 574; Brunk v. Hamilton Shoe Co., 334 Mo. 517, 66 S.W.2d 903, 910; Hayes v. Dalton, Mo.App., 257 S.W.2d 198, 201; 25 C.J.S. Damages, § 83, pages 598, 599. Damages for loss of use of a damaged motor vehicle are now recoverable. Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 663.

Defendants cite, among other authorities, this court’s opinion in Conley v. Kansas City Rys. Co., Mo.App., 259 S.W. 153, wherein it was ruled in a suit for damages to an automobile used in the livery business that the measure of damages for the use of the car while it was being repaired was the cost of hiring another similar car for such period; that in the absence of a showing in that case that a similar machine could not be hired in the market at that time, the plaintiff could not recover lost profits. It is true that in the case at bar the plaintiff, under cross-examination, said it took eight weeks to get his tractor repaired, that there possibily are places where tractors can be leased and that he did not try to lease one. However, we think that the plaintiff’s evidence of the special features of the damaged tractor, adapted to 24-hour running schedules on long hauls of livestock, its specially equipped sleeping accommodations for the use and convenience of a dual operator system under I.C.C. regulations was substantial evidence of the unavailability of a similar machine for hire in plaintiff’s locality. Under the record we believe it was not error for the court to submit to the jury the element of loss of use of the plaintiff’s tractor-trailer during the period of repairs shown.

Referring to defendants’ objection that evidence of loss of profits on a single truck is not relevant because the proper measure of damages for loss of profits is the loss to one’s entire business, we note that the plaintiff sued for the loss of use of his tractor-trailer for the period of the repairs, alleged to have resulted in “his financial loss” and in his instructions asked to recover the reasonable value of the loss of his truck for a reasonable time. He testified of his own knowledge as to the weekly earnings of the tractor-trailer outfit over the period of several years’ experience, the average weekly trips made, his estimate of the operating costs per week and the net profit lost while awaiting completion of repairs. We find no convincing authorities requiring a calculation of such financial loss to encompass all phases of one’s business and all elements of one’s other business assets. The point is overruled.

Respecting defendants’ point that the plaintiff’s testimony of loss of profits was incompetent because it was a mere conclusion, plaintiff contends that no objection to such testimony was made on that ground and is not reviewable on appeal. The record shows no objection made on such ground and it is, therefore, not reviewable. Rule 83.13(a) supra.

Lastly, defendants take the position that plaintiff’s Instruction No. 2 on the measure of damages was erroneous for lack of any substantial or competent evidence under the best evidence rule from which the jury could reasonably find that plaintiff suffered any damage for the loss of the use of his tractor-trailer. That instruction told the jury that if it found for the plaintiff, in assessing the amount of his recovery it should take into consideration the difference between the reasonable market value of the tractor-trailer outfit mentioned in evidence immediately before the accident and its reasonable market value immediately after the accident, “and if you find that said tractor-trailer was used by plaintiff for business purposes, you may take into consideration the reasonable value of loss of use of his truck, if any, for a reasonable period of time, as shown by the evidence in this case, necessary to repair the same”. Cases are cited by defendants requiring some proof of “actual facts which present data for a rational estimate of profits”. Spruce v. Mays, 333 Mo. 582, 62 S.W.2d 824; “Some evidence (in a claim for loss of profits in an action for breach of contract) from which a jury might find that plaintiff’s estimate was approximately correct”, Moss v. Mindlin’s, Inc., Mo, 301 S.W.2d 761, 773; Tnemec Co. v. North Kansas City Development Co, Mo. 290 S.W.2d 169; Kopff v. Deves, Mo.App., 324 S.W.2d 768.

We deem plaintiff’s evidence as to loss of profits in the case at bar to be substantial. As to the objection that plaintiff’s testimony on that point not being the best evidence, it must be borne in mind that his testimony was not offered to prove what his books would show, but what he knew of his own independent knowledge of the subject. This distinction is set out and the applicable rule is stated by this court in Central & Southern Truck Lines v. Westfall GMC Truck, Inc, Mo.App., 317 S.W.2d 841, 852. In that case objection was made on the ground of “not the best evidence” to a question to an owner of a damaged truck: “What is the earning record from your examination of that trailer per month, net, to the company?” The trial court overruled the objection and received the answer. This court said 317 S.W.2d at page 852: “In 32 C.J.S. Evidence, § 792d, page 721, in speaking of the parol evidence rule, it is said: ‘[t]he rule does not apply to exclude parol evidence given by witnesses where testimony is founded on their personal knowledge independent of the books; * * also books of account are best evidence only of what the books contain, and it has been held that a party may explain, contradict, or supplement an account as shown by books by competent evidence * * * ’ ”. Quoting further from Miller v. Great American Ins. Co., Mo.App., 61 S.W.2d 205, 207, the court said 317 S.W.2d at page 852: “‘But plaintiff was not attempting to prove the contents of his books, records, invoices by oral evidence; rather he was attempting to prove the value of his stock of goods at the time of the fire. To the extent that his books, records, and invoices might have disclosed such value, he would have had two means of proof, one by his documentary evidence and the other by his parol evidence’ ”. The court in the case at bar accordingly ruled the answer of the witness to be competent since it was based on his own personal and independent knowledge of the subject matter. The ruling, in our opinion, was correct. Finding no errors materially affecting the judgment herein, the Special Commissioner recommends that the same be affirmed.

The foregoing opinion of DEW, Special Commissioner, is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: BROADDUS, Presiding Judge.

license: Public Domain

text:
    Patty HIGHFILL, Respondent, v. John MAIER, Appellant.
    No. 23930.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      John R. Baty, Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, for appellant.
    Thaine Q. Blumer, Blumer & Wright, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an action for damages for personal injuries arising out of an automobile collision in the intersection of 33rd Street and Robert Gillham Road in Kansas City, Missouri. Plaintiff recovered a verdict and judgment for $2000. Defendant appealed.

On March 13, 1961, plaintiff was driving an automobile with her two children as passengers on their way to school which was about two blocks east of the intersection where the collision occurred. Plaintiff was taking the same route that she usually drove to the school.

While Gillham Road runs generally north and south, it bends about one block or 200 feet south of the accident scene to run northeast and southwest. Plaintiff testified that as she approached Gillham Road from the west she came to a stop sign, stopped her automobile and waited for the traffic to clear from the left. After the southbound traffic cleared, plaintiff looked to her right and saw the defendant’s vehicle, along with two others, coming north on Gillham and about at the bend. While she did not judge the speed of those automobiles, the speed limit on Gillham was 35 miles per hour. Plaintiff’s observation of the three cars was that they were coming slow enough for her to cross.

Plaintiff’s maximum speed crossing the intersection was from 10 to 15 miles per hour. She was going about 15 miles per hour at the time of the impact, and was going at the same rate of speed when she was in the fourth lane from the stop sign, or about 40 feet across the intersection. The defendant’s automobile speeded up from where plaintiff first saw it to where she saw danger of the collision, so that when she saw the danger of a collision, it was about one car’s length ahead of the other two cars. Plaintiff testified that had she tried to stop when she saw the danger of a collision, she would have been hit by the other cars.

Although present at the trial, defendant did not see fit to take the witness stand.

Defendant’s first contention is that plaintiff was guilty of contributory negligence as a matter of law. In passing upon this question we must view plaintiff’s evidence in the light most favorable to her and the plaintiff cannot be convicted of contributory negligence as a matter of law unless the evidence is such as to show negligence on her part beyond an inference to the contrary. Or, as is so often stated, if reasonable minds might well differ as to the question of plaintiff’s negligence, then the matter is one for the jury.

Plaintiff testified that when she arrived at the intersection of Gillham, which was approximately 60 feet in width, she observed southbound traffic and allowed the same to pass. While at the sign she observed the defendant and two other cars abreast at least 200 feet from the intersection. She believed that she had adequate time to cross the intersection ahead of these automobiles, since the speed limit imposed on Gillham Road was 35 miles per hour. When she first observed the defendant and the other cars they were all abreast, but after she had gotten into the intersection and had crossed four of the six lanes, or approximately 40 feet of the roadway, she suddenly discovered that defendant was pulling ahead of the other two vehicles to his left. According to her evidence, plaintiff did not race through the intersection without stopping for the sign, nor did she pull forward into the intersection knowing about the presence of the other automobiles without continuing to observe them, but only realized the danger of the collision when the defendant’s automobile speeded up in the outside lane, passing the other vehicles and creating the danger.

The following quotation from the case of Ritzheimer v. Marshall, 168 S.W.2d 159, 165, Mo.App., is applicable to the instant case.

“Plaintiff had reached the intersection first and started across it when defendant was still moré than a half block away, with nothing to indicate dangerous, careless or improper operation of his automobile. Plaintiff, therefore, had the right of way. Minnis v. William J. Lemp Brewing Co., Mo.App., 226 S.W. 999, 1000. As stated by the trial judge in his memorandum, plaintiff had the right to assume that defendant saw her and that he would not act negligently. Hopkins v. Highland Dairy Farms, 348 Mo. 1158, 159 S.W.2d 254, 256; Housley v. Berberich Delivery, Inc., Mo.App., 87 S.W.2d 209, 211. The question of whether plaintiff was guilty of contributory negligence was, in our opinion, clearly a matter for the jury to determine.”

We rule the contention against defendant.

Defendant next contends that plaintiff failed to make a submissible case. According to plaintiff’s testimony at the time her automobile entered the intersection the defendant’s car was 200 feet to the south. The settled law of this State is that the vehicle first reaching and entering an intersection has the right of way over a vehicle subsequently reaching it, and the driver of the latter vehicle should delay his progress so as to allow the first arrival to pass in safety. Sommer v. St. Louis Public Service Co., 262 S.W.2d 335, Mo.App.; Creech v. Blackwell, 298 S.W.2d 394, Mo.Sup.; Roberts v. Wilson, 225 Mo.App. 932, 33 S.W.2d 169. Defendant, instead of decreasing the speed of his automobile so as to allow plaintiff to pass through the intersection to safety, pulled ahead of the other two vehicles on his left and thus brought about the collision. The contention lacks merit.

Defendant’s final contention is that the giving of Instruction No. 1 on plaintiff’s behalf constituted error. Among other things it required a finding “that when plaintiff entered the intersection defendant’s vehicle had not yet entered said intersection, nor was it approaching so close thereto as to constitute an immediate hazard, and if you find that after plaintiff entered said intersection defendant failed to yield the right of way to plaintiff, and that in so doing defendant failed to exercise the highest degree of care and was thereby negligent, if you so find, and if you further find that such negligence directly caused plaintiff to be injured, if so, and if you find that plaintiff was not negligent as submitted by Instruction No. 4 * *

Instruction No. 4, referred to in Instruction No. 1, was given on behalf of defendant. It required a finding for defendant if plaintiff drove her automobile into the intersection and into the path of defendant’s automobile when it was so close that there was danger of a collision between the vehicles, “and that in the exercise of the highest degree of care the plaintiff could have seen there was danger of a collision with the defendant’s automobile if plaintiff drove her automobile into the path of defendant’s automobile, and if you further find that plaintiff failed to exercise the highest degree of care * *

In support of his contention defendant cites the case of Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972. That case does not aid defendant. The instruction under consideration in that case was held to be good inasmuch as it required a finding “that plaintiff in entering and proceeding across the intersection was exercising the prescribed degree of care under the circumstances” and “that defendant had ‘negligently failed to yield the right of way’ to plaintiff.” Since instructions must be considered as a whole, it is plain to be seen that when Instructions No. 1 and No. 4 are read together the requirement laid down in the Knight case was fully complied with, In our opinion, Instruction No. 1 is free from prejudicial error under the holdings in the Sommer and Creech cases cited above.

The judgment is affirmed.

All concur.


author: MAUGHMER, Commissioner. PER CURIAM.

text:
    Alice F. THOMSON et al., Appellants-Condemnees, v. KANSAS CITY, Missouri, a Municipal Corporation, Respondent-Condemnor.
    No. 23974.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Charles E. Thomson, Kansas City, for appellants.
    Herbert C. Hoffman, City Counselor, Ned B. Bahr, Asst.- City Counselor, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is a proceeding commenced by the City of Kansas City for the condemnation of private property for public use in the construction and maintenance of sanitary sewers. The City is authorized to do this under the provisions of Chapter 6, Charter of Kansas City.

In view of the- errors alleged in the motion for new trial and preserved on appeal we deem it unnecessary to set out the ordinances and pleadings filed. There is no question of sufficiency or jurisdiction.

Appellants Alice F., Bessie E., Renick A. and Tracy A. Thomson are the owners of an approximately 23 acre tract located near 35th and Eastern Avenue in Kansas City. Tracts No. 9 and No. 9A, as described in the City’s petition, relate to this tract. No. 9 describes a line of approximately 430 lineal feet along and upon the Thomson property and contains an area 5 feet in width on each side of this line for use as a sewer right of way. After construction of the sewer this strip 10 feet in width will be covered over and may be used by the landowner, but the City retains an easement thereon. Tract 9A describes an additional strip 10 feet wide — 5 feet on each side of Tract 9. The 9A easement is temporary and would terminate upon completion of the sewer construction — a period estimated to be not less than 6 nor more than 12 months. The plans provided for construction of only a sanitary sewer and not a combined sanitary and storm sewer.

A jury of six freeholders was duly empaneled by the Circuit Court of Jackson County as provided by Section 142, Charter of Kansas City. After hearing the testimony which was offered and after personally viewing and inspecting the premises, this jury returned its verdict in part as follows: “We, the jury find that the benefits equal or exceed the damages as to Tract 9 and 9A and award no dollars — $0.00”. The court, after review of the verdict and consideration of the motion for new trial, confirmed the verdict and entered judgment accordingly, all in accordance with the provisions of Section 156, Charter.

Four points are presented on the appeal. The first two are basically legal conclusions and may be disposed of quickly. Point I declares “Private property cannot be taken nor damages for public use without just compensation”. Both respondent and this court agree that such is the law. Section 128 of the Charter so provides and in Section 26, Art. I, Constitution of Missouri, 1945, V.A.M.S., we find this admonition: “ * * * private property shall not be taken or damaged for public use without just compensation. * * *”

Point II asserts that “Only special benefits, as distinguished from general benefits, may be off-set against damages for property taken by condemnation”. There can be no question but that only “special benefits” as distinguished from “general benefits” are properly chargeable as an offset to damages. The court in State ex rel. State Highway Commission v. McCann et al., Mo.App., 248 S.W.2d 17, 22, said: “A landowner from whom some land is taken is chargeable with the value of special benefits but not the value of general benefits”, and cited numerous supporting authorities.

Appellants’ fourth point is that “The Charter of Kansas City requires a condemnation jury to both ascertain damages and assess benefits, and this jury has not followed the directives of the Charter in returning its verdict”. In support of this view we are invited to examine Sections 149, 151 and 152 of the Charter and the case of City of Kansas City v. Baird et al., 98 Mo. 215, 11 S.W. 243, 562. It is appellants’ position that the jury should have ascertained and stated separately in the verdict the dollar amount of the damages and the dollar amount of the special benefits, rather than simply finding “that the benefits equal or exceed the damages * * * and award no dollars”. We do not believe the cited sections of the Charter specifically require that under this verdict the damages and benefits must be separately stated, nor does the Baird case so hold. In its Instruction No. 1 the court specifically directed the jury that if the special benefits “equal or exceed the damages to said tract or tracts, if any, from the proposed improvement, then you shall not report an allowance for damages to such tract or tracts”. Appellants in their motion for new trial complained only generally that Instruction No. 1 was contrary to law without pointing out any specific objection and no complaint whatever is presented on appeal as to Instruction No. 1.

In State ex rel. State Highway Commission v. Baumhoff et al., 230 Mo.App. 1030, 93 S.W.2d 104, 108, the court similarly directed the jury to deduct “the special benefits, if any”.

The Supreme Court En Banc, State ex rel. State Highway Commission v. Jones et al., 321 Mo. 1154, 15 S.W.2d 338, 339, 340, speaking of the relation of special benefits to the just compensation to which the landowner is entitled where a part of his property is taken for public use, said:

“That relation is indicated in a general way in an instruction which has been so frequently given and so uniformly approved in railroad condemnation proceedings as to become a classic. It is as follows: ‘In estimating the damages to the land in controversy, the jury will consider the quantity and value of the land taken by the railroad company for a right of way and the damages to the whole tract by reason of the road running through it; and deduct from these amounts the benefits, if any, peculiar to the said tract of land, arising from the running of the road through the same. And by peculiar benefit to that land, is meant, such benefits as that land derives from the location of the road through it, as are not common to the other lands in the same neighborhood.’ Quincy, M. & P. R. Co. v. Ridge, 57 Mo. loc. cit. 601.”

We rule against appellants as to Point IV.

The third and final assignment of error is an assertion that “The damages sustained by the appellants Thomson greatly exceed any special benefits assessable against their property”. A ruling as to this contention requires not only consideration of the evidence adduced as to both damages and special benefits but a determination of the powers and functions of a charter jury of freeholders and an understanding of the sometimes close and sharp distinctions between “special benefits” and “general benefits”. The usual condemnation proceeding (except where the Charter provides otherwise) contemplates use not only of commissioners but, if either party requests, also a common law jury. It is intended that the charter jury of six freeholders named by the circuit court be selected because of their experience and expertness as appraisers of property values. Such a jury apparently possesses the powers and exercises the functions of both commissioners and a common law jury. In addition, presumably because of their special qualifications, they may (Sec. 144, Charter) and in practice do, examine personally each piece of property condemned. In arriving at its verdict such a jury is not limited, as is the common law jury, to the evidence produced at the hearing or trial. In Kansas City v. Jones Store Co. et al., 325 Mo. 226, 28 S.W.2d 1008, 1016, the court, speaking of the powers of such a jury, said:

“A jury of freeholders is not limited to the evidence produced, as is a common-law jury. Such a jury, under section 144, art. VI, of the Charter of Kansas City, may examine personally each piece of property described in the map or plat filed in the case, all property claimed to be damaged, and the city engineer, the director of public works, or the superintendent of parks, or any assistant of any of them, may accompany such jury for the purpose of pointing out the property condemned. Thus the jury can reach a conclusion with or without the assistance of any evidence produced before them, having the benefit of expert assistance in the examination of the property. The result reached is conclusive unless the court is satisfied that they have erred in the principle upon which they have made their appraisal”.

This court recently expressed the same view in Proceedings for Condemnation of Private Property for Sixth Street Expressway, Kansas City v. National Engineering & Mfg. Co., Inc., Mo.App., 274 S.W.2d 490, 492, and said:

“It has been held that such a jury could have reached a verdict based solely upon its own examination of the property and that its verdict would be conclusive absent a showing that the jury erred in the principle upon which they made their appraisal”.

Again in Kansas City, Mo. v. O’Donnell, Mo.App., 296 S.W.2d 914, 917, this court reached and stated the same conclusion.

Judge Vandeventer (State ex rel. State Highway Commission v. McCann, Mo.App., supra, 248 S.W.2d at pages 22, 23) assembled the authorities and restated the basic rules and distinctions as to special and general benefits. We quote from that opinion :

“We think the law is well settled that ‘special benefits’ are such as are peculiar to a particular tract of land, enhances the value of such property in a manner peculiar to it, and not common to and enjoyed by other tracts in the same neighborhood, no part of which is taken. Special benefits must be reflected in an increase of the market value of the land, (citing cases).
Hs H* H* Hs ‡ H*
“A ‘general benefit,’ as applied to a person whose property is being condemned for a highway, is one common (though it may be in a greater or lesser degree) to all other landowners in the vicinity of such road, including those whose land is not taken as well as those whose land is partly taken.
A landowner from whom some land is taken is chargeable with the value of special benefits but not the value of general benefits. To charge a tract of land with the value of general benefits is to require its owner to pay for a benefit common to others who are themselves exempt from such payments (citing cases).
H» H» H» H» H» Hi
“But it is also the law that a benefit accruing to all lands similarly situated and bordering on a highway may, nevertheless, be special as to each of them, provided, they are not also benefits accruing to lands in the community which do not border on the highway, and consequently, no part of which is taken.
H« H« Hi Hi H< Hi
“Private property shall not be taken or damaged for public use without just compensation. Art. I, Sec. 26, Constitution of Mo. 1945, V.A.M.S. But the compensation going to the landholder, whose property has been taken, may be paid in cash or by special benefits, or by both”. (Italics added).

In a recent case, State ex rel. State Highway Commission v. Vorhof-Duenke Co. et al., 366 S.W.2d 329, 337, 338, our Supreme Court En Banc made the following comment :

“ ‘Generally, the burden of proving the existence and amount of special and peculiar benefits is on the party seeking to condemn the land, although there is authority holding that certain improvements give rise to a presumption of benefit. The general rules of evidence in civil cases and 'proceedings govern and control the admissibility and the weight and sufficiency of evidence on the question of benefits’. Emphasis added. 29 C.J.S. Eminent Domain § 184, pp. 1067-1068. Numerous Missouri cases are cited in support of these statements of law. In State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, 341, the court held that a highway constructed where none had been before presumptively conferred a special benefit on the adjoining land, but whether it actually did was a question for the jury to determine. See also City of St. Louis v. Hamley Realty Co., 329 Mo. 1172, 48 S.W.2d 938, 940(6-8)”. (Italics supplied).

If it be held that a new highway presumptively confers a “special benefit” upon the adjoining land, we think it follows that a sewer confers such a special benefit upon the adjoining land in a large city or in a residential or industrial area. However, in each case whether it actually does confer such a benefit is for the jury.

Analysis of the law by precedents as declared in the above quoted excerpts leads to certain terse conclusions: (1) Private property may not be taken for public use without payment of just compensation ; (2) Only “special benefits” may be offset against damages; (3) The burden is on condemnor to prove the existence and amount of special and peculiar benefits although certain improvements give rise to a presumption of benefits, for example — a new highway where there had been none before; (4) The Charter jury may reach a verdict based solely upon its own examination of the property; (5) Such a verdict is conclusive absent a showing that the jury erred in the principles upon which they made their appraisal; (6) A sanitary sewer may, by a charter jury, be found to confer a special benefit on the adjoining land in a city or in a residential or industrial area; (7) If the jury verdict and judgment entered thereon finds support in the evidence (including the jury’s own inspection) it may not be disturbed.

What is the evidence before us in addition to that obtained by the jurors through their personal inspection of the property? The only witness who testified for the City was Mr. Max Batman, an employee in the office of the city engineer. He identified a map showing the areas condemned and said only a sanitary sewer construction was planned. The City offered no expert testimony as to benefits, special or general, or as to damages. Mr. Batman described the proposed sewer construction and said it would be buried under ground and only the 10 foot easement would be retained permanently.

Mr. William E. Thomson was the only witness who testified for the condemnees. He said this 23 acre tract was purchased by his father in 1927 for a price of $500 per acre; that the family for many years had been “operating quarries and crushing stone”; that before buying this tract extensive exploration had been done on it and valuable limestone deposits known as Bethany Falls and Winterset ledges had been discovered underground. He stated that the area was wooded and the West 180 feet was zoned for heavy industry. This tract has not, during the 37 years since its purchase in 1927 by the Thom-sons, been used for anything. Mr. Thomson said a demand was developing for these rock products and he expressed the opinion the 23 acres were worth between $9,000 and $12,000 per acre for such use which in his opinion was the highest and best use. To recover these rock deposits economically requires the use of high explosives and heavy blasting. In Mr. Thomson’s opinion such blasting would probably damage the sewer and therefore the tract was severely damaged insofar as economic recovery of the rock deposits was concerned.

What was the situation and what evidence as to damages and special benefits was clearly apparent when this charter or freeholder jury inspected the premises? The City had taken an easement over a tract 430 feet in length and 20 feet in width for one year with a permanent easement covering the middle ten feet. When the sewer construction is completed the whole area will be covered over and likely will he disturbed very infrequently thereafter and then only for the making of repairs and connections for new users. The land covered by this easement is for normal uses still available to the owner. In this case no construction of any kind was disturbed and the diminution in value, if any, of the 23 acre tract was negligible insofar as any usual use is concerned. The damage might be substantial if the testimony of Mr. William E. Thomson were accepted at face value. He said this particular tract contained valuable rock deposits; that to secure these deposits was the motivating cause for its purchase in 1927; that the land was worth from $9,000 to $12,000 per acre but the existence of the sewer precluded the usual blasting operations required in reclaiming the rock deposits and therefore substantially damaged the property.

On the other hand,, a part of this tract is zoned for heavy industry. Other buildings and construction are nearby, the presence of which must be considered before heavy blasting is done. Besides, the Thomsons have owned this property for 37 years. It remains now as it was when purchased — a wooded area. The jury might reasonably conclude that a rock quarry was not the only highest and best use to which the tract could be put; that blasting operations would not endanger the underground sewer any more than it would the above ground construction nearby, and that the value of the tract was not materially- — but only nominally — damaged by the sewer.

As to special benefits, the sewer construction gives rise to a presumption of special benefit to the adjoining land. Certainly for many heavy industries or for residences it would be a value and confer a special benefit. As Judge Cave, speaking for this court in Kansas City v. O’Donnell, supra, said at page 917 of 296 S.W.2d:

“Furthermore, the jury personally inspected the property and proposed improvements, and under such circumstances, it has been held that such a jury could have reached a verdict based solely upon its own examination and that its verdict would be conclusive, absent a showing that the jury erred in the principles upon which they made their appraisal; and no such showing was made in this case”. (Italics added).

We do not believe that the evidence, including the inspection of the premises by the jury, shows that “the damages sustained by appellants Thomson greatly exceed any special benefits assessable against their property”. We believe the evidence is to the contrary. Upon and after review as required under the law, the trial court affirmed the verdict and entered its judgment thereon. There is no showing that the jury erred in the principles upon which they made their appraisal. And the verdict reached could certainly have been arrived at by the application of true and correct principles as those principles have been set forth herein.

Finding no reversible error, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: SAMUEL A. DEW, Special Commissioner.

text:
    Dorothy A. NEELEY, Appellant, v. INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY, and Southwestern Bell Telephone Company, Respondents.
    No. 23916.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Tweedie Fisher, Jefferson City, Robert C. Eckhardt, Houston, Tex., for appellant.
    Lloyd G. Poole, Jefferson City, for respondent Industrial Commission of Missouri.
    John Mohler, Evans & Dixon, John R. Dixon, St. Louis, for respondent Southwestern Bell Telephone Co.
   SAMUEL A. DEW, Special Commissioner.

The claimant, Mrs. Dorothy Neeley, an employee of the respondent Southwestern Bell Telephone Company at Jefferson City, Missouri, applied for and obtained- from her employer what was termed a “leave of absence” for one year because of her pregnancy. After the birth of her child and about six months before the expiration of the leave of absence, the claimant inquired of the Company if it had work for her and was told that there was none at the time. About six weeks before the expiration of the leave of absence she again applied to the Company for return to work and was granted her request. Meanwhile, however, she had filed claims for unemployment benefits for three previous weeks since the birth of her child, which claims are the basis of the present proceeding. The finding and decision of the respondent Industrial Commission having ruled her disqualified to make her claims, and such determination having been affirmed by the circuit court upon review, the claimant has appealed to this court.

For convenience the appellant will be referred to as the “Claimant”, the respondent Industrial Commission of Missouri as the “Commission”, and the respondent Southwestern Bell Telephone Company as the “Company”.

This court is bound, as was the circuit court, by the facts as they were determined by the commission, if such findings were supported by competent and substantial evidence, in the absence of fraud. We are, therefore, confined in our consideration herein to questions of law. Section 288.210 RSMo 1959, as amended, Laws 1961, p. 435, Section 1, V.A.M.S.; Constitution of Missouri, Art. V, Section 22, V.A. M.S.

Insofar as necessary for our consideration of the legal issues presented in this appeal, the facts stated below as found by the majority opinion of the commission and as to which there was competent and substantial evidence, are deemed an adequate statement thereof. The claimant, who had worked for several years for the company, became pregnant, was suffering from headaches and other attendant symptoms, and was advised by her physician to quit work. She expected the birth of her child about December 2, 1960. She asked for and was given a leave of absence from July 31, 1960 to July 31, 1961. It was explained to her that the effect of the leave under the policy of the company was that, unlike a resignation, the leave would preserve for her the seniority rights and other credits accrued if she were returned to service for the company at or before the expiration of the leave of absence and .under the conditions stated in the leave. She was asked: “You left of your own volition? A. That’s right”.

The leave of absence introduced in evidence was in printed form with written insertions, and among other provisions, stated: “Employee plans to return to work at expiration of leave if work is available * * *. Leaves of absence do not carry any guarantee of employment * * *. Upon return to work on or before expiration of leave, only the first month of absence covered by the leave shall be credited in computing terms of employment. Eligible to death benefits under the provisions of the Plan during only the first month of absence covered by leave.”

It was the policy of the company to permit an employee in a maternity case to return to work on or before the expiration of a year’s leave of absence if an opening existed, and if the employee produced a doctor’s certificate showing the employee to be able to resume work.

The evidence shows that claimant was a member of a union with which the company had a working “traffic” agreement covering certain aspects of operation, including “leaves of absence” granted to such employees. It was provided therein in part that “Insofar as the requirements of the service will permit, leaves of absence for good cause and for a reasonable length of time will be granted upon request. The intention of the employee with respect to return to work shall be established in writing between the employee and the company at the time the leave is granted and a copy shall be furnished the employee at the time the leave is granted”.

There was further evidence and the commission so found that a policy rule of the company was adopted in 1958, which required the company supervisor when informed of the pregnancy of an employee, to discuss and to settle with her when she would cease work, to ascertain her intention whether to resign at such time or to ask for a leave of absence covering the period of her absence, and that if she requests a leave of absence, to obtain her intention as to returning to active service at its expiration as prescribed in previous provisions referred to. The rule further provided that such leaves, when granted, shall be for one year.

Further proof showed and the commission so found that there was a subsequent rule of the company adopted in 1959, providing that when such a maternity leave of absence is granted upon the request of either the employee or employer, the employee shall have the option to resign or to be granted a year’s leave of absence.

Mrs. Neeley’s child was born on December 6, 1960. She became able to work again about six weeks thereafter. She had been purchasing A. T. & T. stock through the company and was allowed six months’ grace for payment on the purchase and she wished to keep up the payments. According to her evidence she obtained from her doctor a certificate that she was able to work and presented it about February 1, 1961, to the company with a request to return to work. The claimant and supervisor testified that the claimant was told that no work was then available with the company at that time, but that she could apply again later.

There was evidence that the claimant was physically able and willing to work during the weeks of March 5, 1961, March 18, 1961 and April 1, 1961. Having arranged for the care of her child, claimant made claims for those weeks for unemployment compensation. She contacted five employers for employment during the weeks in question without avail. The records of her applications for employment benefits show that she described herself as “temporarily” unemployed, and that she intended to return to work for the respondent company on April 1st. On June 17, 1961, Mrs. Neeley applied again to the company and was returned to her job. Since the date of her leave of absence, she had received no wages from the company nor elsewhere, nor had she performed any services therefor.

The commission found the foregoing' facts on competent and substantial evidence and ruled that the claimant had voluntarily left her employment with the company for the sole reason of her pregnancy and attendant symptoms; that it was expressly agreed that the leave of absence did not guarantee reemployment but by reason of it and if she were accepted for return to work at or prior to its expiration, the company would preserve for her seniority rights and credits accrued at the date of the leave. The commission further found under such proof that claimant had left her employment without good cause attributable to her employment or her employer; that she was not available during the weeks for which she made claim because she did not make an earnest and active search for work as required by law. The decision was that claimant was disqualified for waiting week period or benefits until she had earned wages equal to ten times her weekly benefit amount after July 31, 1960.

? Upon review of the findings and decision of the commission, the circuit court found that such decision “holding the claimant ■disqualified for waiting period for benefits ■until she has earned wages equal to ten times her weekly benefit amount after July 31, 1960, because she left her work voluntarily on July 31, 1960, without good cause •attributable to her work or to her employer, ■is supported by competent and substantial ■evidence upon the whole record, and that the law was properly applied by the Industrial Commission of Missouri to'the facts found by it”. The court thereupon ordered and adjudged that such decision so disqualifying Mrs. Neeley “for waiting week credit or benefits until she has earned wages equal to ten times her weekly benefit amount after July 31, 1960, should be and the same is hereby in all respects affirmed”. The costs were assessed against the claimant.

In a judicial review of a decision of the Industrial Commission of Missouri the court may not substitute its judgment for that of the commission but must determine if the commission could reasonably have reached the results of its decision upon the whole record, and the court must set aside any decision clearly against the weight of the evidence. The court must consider the evidence in the light most favorable to the findings and decision of the commission, and all reasonable inferences therefrom, and must disregard all opposing and unfavorable evidence. Producers Produce Co. v. Industrial Commission of Missouri et al., 365 Mo. 996, 291 S.W.2d 166, 173; Poggemoeller et al. v. Industrial Commission of Missouri et al., Mo.App., 371 S.W.2d 488, 498.

The purpose of the Employment Security Law is stated in Section 288.020, R.S.Mo. 1959, V.A.M.S. to be “ * * * the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own”. Among the numerous provisions of Chapter 288 there are certain requirements specified to constitute eligibility for benefits under the Employment Security Law. “Employment” means: “Service, * * * performed for wages or under any contract of hire, written or oral, expressed or implied * * *”. Section 288.034. “A claimant who is unemployed and has been determined to be an insured worker shall be eligible for benefits for any week only if the deputy finds that * * * (2) He is able to work and is available to work; provided, however, that no person shall be deemed available for work unless he has been and is actively and earnestly seeking work * * *”. Section 288.040. “Notwithstanding the other provisions of this law a claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if the deputy finds. (1) That he has left his work voluntarily without good cause attributable to -his work or to his employer * * Section 288.050, subd. 1. “Waiting week” is defined by Section 280.030, subd. 23 to be “the first week of unemployment for which a claim is allowed in a benefit year”. The waiting period is designed to protect the insurance against petty losses and to facilitate administration of the program. Rozier, 15 V.A.M.S. p. 421.

The claimant herein contends that the circuit court erred in holding that there was competent and substantial evidence to support the commission’s decision that she voluntarily left her work on July 31, 1960 without good cause attributable to her work and was disqualified to claim unemployment benefits until she had earned wages equal to ten times her weekly benefit amount after that date. Her contention is based on two assigned theories: (1) that her status as an employee continued when she left her work on pregnancy leave and (2) that there was no competent and substantial evidence upon the whole record to support any other conclusion than that the leave of absence “bridged” the period of pregnancy, after which she immediately sought actively and earnestly for work, and that she was available therefor.

The claimant was either unemployed or employed when making her applications for unemployment compensation. If unemployed, she was required to meet the conditions imposed by the statutes as to involuntary severance from her previous work and other requirements referred to in the statutes, or, if she contends she was employed at such times, the consequence of which, if true, would be that she would be expressly disqualified by the law. A person may not at the same time occupy the status of one employed and that of one unemployed when seeking pecuniary benefits provided by law for the latter only.

The reserve set up and maintained under the Employment Security Law of Missouri is, as stated, expressly for the use and benefit of persons who are unemployed due to no fault of their own. Section 288.-020. The word “fault” as used in that section is not limited to “conduct of the employee which is blameworthy, culpable, wrongful, or worthy of censure, but means failure of volition. * * * ”; that “an employee ordinarily is deemed to have left his work voluntarily when he has left of his own motion or accord as opposed to a discharge, dismissal, or layoff by the employer, or other action by the employer severing relations with his employees”. 81 C.J.S. Social Security and Public Welfare §§ 161, 164, pp. 244, 248, 249; Bussmann Mfg. Co. v. Industrial Commission, Mo.App., 335 S.W.2d 456, 461. To sustain the commission’s ruling that the claimant left her employment with the company voluntarily there was competent and substantial evidence from the whole record and the decision of the commission so holding was a reasonable conclusion.

The claimant’s several applications for work over the period of nearly a month and her representations on her claim cards for benefits as being “temporarily” unemployed and intending to return to her work with the company on April 1, 1961, indicating that she was seeking temporary employment only, constituted sufficient grounds under the statutes for the ruling of the commission that claimant did not seek reemployment actively and earnestly. Section 288.040, subd. 1(2).

As to claimant’s next assertion that there was no competent or substantial evidence to support any conclusion other than that the pregnancy leave of absence “bridged” the pregnancy incapacity, and that immediately thereafter she sought work actively and earnestly and was available for work, it is obvious on the face of the written leave of absence in evidence that the only method of affecting its expiration was (1) by lapse of the entire maximum period stated or (2) at or before such expiration the claimant should become available for work, should make application to the company for return to work, that an opening for such reemployment existed and that her application for reemployment be accepted. There is no provision in the leave of absence that would authorize the claimant, at will, prior to the expiration date of the leave, to terminate her unemployment status with the company without a mutual agreement therefor with the company. Nor would such status be affected by the policy of the company to preserve for the claimant her earned seniority rights and credits if she did return to reemployment with the company under the conditions of the leave of absence.

It is our conclusion that there was competent and substantial evidence to support the findings and decision of the commission; that its decision was correct under the law and that the judgment of the circuit court so affirming it should accordingly be affirmed. The Special Commissioner so recommends.

The foregoing opinion by SAMUEL A. DEW, Special Commissioner, is adopted as the opinion of the Court.

All concur.


author: SPERRY, Commissioner. PER CURIAM.

text:
    STATE ex rel. WABASH RAILROAD COMPANY, a Corporation, Plaintiff-Respondent, v. PUBLIC SERVICE COMMISSION of Missouri et al., Defendants-Appellants.
    No. 23818.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.
    Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen. Counsel, Jefferson City, for appellants.
    Charles H. Howard, Hendren & Andrae,, Jefferson City, for respondent.
   SPERRY, Commissioner.

Plaintiff, Wabash Railroad Company, filed' petition in Circuit Court of Cole County, Mo., seeking its writ of certiorari to test the legality of the report and orders of the defendants, Public Service Commission of Mo., whereby plaintiff was ordered to discontinue the dualization of its station at Hallsville, Mo., with its station at Sturgeon, Mo., and to maintain a full time station agent at Hallsville. After hearing evidence the Court entered its order reversing and setting aside the report and order of the Commission, and remanding the cause to the Commission for further consideration as future circumstances and events may warrant. The Commission appeals.

This case grows out of action taken by the Wabash in dualizing its services at its station at Hallsville, with those of its station at Sturgeon, some fifteen miles therefrom. The dualization of services consists of the maintenance of one station agent to care for both stations, said- agent to serve at Hallsville from 1:30 P.M. until 4:15 P.M., each work day. Previously, Wabash had maintained a full time agent at Halls-ville. The City of Hallsville, and a resident of that area, complained to the Commission, protesting the action of Wabash in this regard. The Commission docketed the case as No. 14775, and proceeded to a full hearing of evidence by all interested parties. It ordered that Wabash restore the facilities existing at Hallsville prior to its dualization of services by maintaining a full time station agent.

Prior to docketing and hearing this case, the Commission had entered two orders touching station agent services to be rendered at Hallsville but neither order is of ■significance here, except as background. This hearing was based on a specific complaint made long after the previous orders were made and after the dualization had become an accomplished fact.

The reviewable question in this case is the reasonableness or lawfulness of the order. We may determine whether or not it was reasonable or, conversely, whether it was unreasonable, arbitrary, or capricious. For the order to have been reasonable it must have been based upon competent and substantial evidence upon the whole record. State ex rel. City of West Plains v. Public Service Commission, (Mo.), 310 S.W.2d 925, 929.

What Wabash did, of which complaint was made (and the hearing followed), was to place the Hallsville station in charge of a part time agent, assigned to serve from 1:30 P.M. until 4:15 P.M. each work day, make it a telegraphic station instead of non-telegraphic, as it had been, and to make available to its patrons free telephone service from Hallsville to certain other nearby stations, including the one at Sturgeon where the Hallsville agent serves during the forenoon. Previously, there had been no telephone service provided, the agent was not a telegrapher and, therefore, could not maintain contact with other agencies throughout the system for the convenience of customers.

Wabash had the right to initiate the services it would render, “There are certain restraints interposed by other statutory provisions in regard to rates, fares, and charges, but, so far as service is concerned, the carriers may in the first instance determine for themselves its character and extent, and may likewise make such changes therein from time to time as they may deem proper. It is only when the service so inaugurated or furnished is, or becomes, ‘unreasonable, unsafe, improper or inadequate’ that the Commission may interfere”. (Emphasis ours). Public Service Commission v. St. Louis, San Francisco Ry. Co., 301 Mo. 157, 256 S.W. 226, 228 (in Banc). Applying the above rule to this case, the question is: Is the service which is being maintained for the public at Hallsville safe, adequate and reasonable? If, under the whole record, it is safe, reasonable and adequate, then the order of the Commission in this case is unreasonable, arbitrary, and void. If it is reasonable, saie, and adequate, then it must be said that public convenience and necessity is being served and that any interference with Wabash’s conduct of its business is arbitrary, unreasonable and unlawful.

The record on behalf of complainants is voluminous. It would not be helpful to set out the testimony of each witness in detail.

Mr. Quisenberry thought the service was bad for the community, did not conform to his own individual time table, was not as convenient for him as it would be to have a full time agent. Mr. Wilmoth, school superintendent, said it would be more convenient for him to send assistants to the depot to pick up school supplies (occasional and small quantities) in the A.M. instead of P.M. Mr. Elkins occasionally received cattle by rail, and afternoon services not being convenient for him; but, in 1960, 1961, prior to the station agent change, he used the Centraba station, on the mainline, to receive shipments, instead of Hallsville, on the branch line. Probably this was due to the fact that cattle arriving at Centraba might frequently lay over several hours before the branch line train left for Halls-ville. Miss Brown objected to the change because she could not purchase tickets at the station in the mornings but only in the afternoons, although tickets could be purchased on the train when it arrived. (Halls-ville is a flag station). Mrs. Jones’ testimony was largely to the same effect. Mr. McKenzie thought the new service not so convenient as the old. Mr. Isely, secretary of the Chamber of Commerce of Columbia expected great increases in population and business in Boone County, and thought that services should be provided therefor. Mr. Jones received carloads of phosphate. The former agent would call him when a car arrived (although the services of the Wabash did not so provide) and he opposed the change because he would, in future, only receive notice by mail, as the service rendered by Wabash had always provided. Mrs. Gallenmore sent her children on the train occasionally and the agent had personally looked after them but, with the new service, she would personally have to perform that duty.

Mr. Leu and Mr. Collingwood, officials of Wabash, gave testimony based upon their knowledge, gained in the performance of their duties, and upon the business records of Wabash. This testimony was to the effect that, during the period from January 1, 1958 through September, 1961, (45 months) 19 carloads and 17 less than carload lots of freight originated at Halls-ville; that 160 carloads and 549 less than carloads were received; that the total gross revenue received by Wabash therefrom was $21,347.73; that the total minimum station expense at Hallsville during this period was $18,648.58; that the total daily average time required of a station agent to transact Wabash business at the station is twenty minutes. The evidence did not disclose what amount of the above revenue received by Wabash was net to, or assignable to the Hallsville station, out of the gross for the entire system. The passenger revenue was negligible.

There was evidence to the effect that Wabash could save $6,000.00 per year through dualization; that no complaint on service rendered since the dualization was instituted had been received except from those appearing at this hearing; that Boone County Oil Co., which shipped 90 of the 160 carloads received at Hallsville during the mentioned period, had specifically approved dualization; that the next largest customer was complainant Jones; that the other principal carload customers were Missouri State Highway Commission (road materials) ; Mr. Elkins, (cattle) and three others; that, of the 19 carloads originating at the station during that period, 18 were shipped by a logging company.

There was evidence to the effect that Wabash was endeavoring to consolidate services throughout its system, in the interest of economy; that such action has been and is being encouraged by the public ; that such dualization has occurred in Missouri, affecting twelve stations; that this was done without prior order by the Commission; that'no complaint, save this, has been filed; that the action here taken was done with the consent and approval of the labor unions thereby affected; that, in some instances on the Wabash system, one agent is caring for three or four stations.

Under the evidence here, it does not appear that service inaugurated and maintained by Wabash, by dualizating the station, is ‘unreasonable, unsafe, improper or inadequate’. That is the only reasonable conclusion to be reached, based upon the competent and substantial evidence on the whole record. That being true, the Commission is held to have acted, in this case, arbitrarily, capriciously, and unlawfully. Its order is not supported by competent and substantial evidence upon the whole record, and is void.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: HUNTER, Judge.

text:
    George PAYNE, Respondent, v. The WESTERN CASUALTY AND SURETY COMPANY, Appellant.
    No. 23940.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Louis F. Cottey, Lancaster, for appellant.
    Clare Magee, Unionville, for respondent.
   HUNTER, Judge.

This is an appeal from a judgment of the Circuit Court of Putnam County, Missouri, awarding $1,250.00 to plaintiff-respondent, George Payne, for damages to his motor vehicle under the collision provisions of an insurance policy issued by defendant-appellant, The Western Casualty and Surety Company.

The pertinent provision of the policy is:

“Coverage E-Collision: To pay for loss caused by collision of the automobile with another object or with a vehicle to which it is attached or by upset of the automobile, hut only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as applicable hereto; * * * ”

The sole question presented on appeal is whether under the stipulated facts of the parties the damage to respondent’s trailer was a “loss caused by collision of the automobile with another object” within the meaning' of the policy.

The stipulation of facts provided that the policy of insurance issued by appellant to respondent insured respondent’s Ford tractor and also his Fruehauf grain trailer “against certain losses, including collision, for a period commencng July 3, 1962, and ending July 3, 1963; it being provided that defendant would pay plaintiff for any loss caused by collision with another object, excepting that $100.00 would be deducted from the actual damage.

“4. That on or about the 2nd day of October, 1962, while said policy was in full force and effect, plaintiff was operating the above mentioned tractor and trailer along Missouri State Highway No. 5, and when he reached a point about five miles south of Milan, Missouri, the tractor and trailer passed over a culvert upon which, in the process of construction and maintaining said highway and culvert, had been placed approximately twelve inches of dirt; but in this connection it is agreed that plaintiff’s claim is not founded upon any alleged collision with such culvert; that it was raining at said time and the black-top road-bed was slippery; that immediately after crossing the elevation aforesaid, the tractor and trailer started slipping and finally went onto the soft shoulder to the right of the highway, causing tractor and trailer wheels to be suddenly and partially submerged in the soft soil, materially reducing and quickly stopping the machine’s forward motion ; that at said time and place the trailer was loaded with approximately 39,000 pounds of shelled corn; that the trailer did not overturn, but as it came in contact with the soft shoulder and the speed of the machine suddenly slackened and eventually came to a complete stop, the weight of the load and abrupt stoppage of the machine combined to cause the trailer to be wrenched, twisted, smashed and materially damaged. It is agreed between the parties hereto that neither the tractor nor trailer came in contact with any object other than the soft shoulder of the' highway.

“5. That the damage to the trailer was in the sum of $1,350.00; that plaintiff has made demand of and from defendant company for the sum of $1,250.00, but that defendant has refused payment of such sum or any part thereof.

“6. That plaintiff has duly executed and furnished defendant proof of loss and has otherwise complied with all conditions required of him by said contract of insurance, but defendant has denied liability.

“7. The parties hereto do not agree on whether the refusal to pay was vexatious, but agree that this question shall abide the decision of the trial court or, if appealed, the decision of the appellate court.”

Although there are numerous decisions concerning the application of this same type of insurance clause to situations where it is claimed a motor vehicle was damaged by striking another object by contacting some part of the road or shoulder of the road or something thereon, our research has not disclosed any case with facts like those before us. However, a review of the results of the more pertinent of those cases and the principles upon which they were decided is of benefit to an understanding of the precise question we must rule.

Generally speaking, the determination of whether there has been a “collision” within the intent and meaning of the policy involves (1) whether there was an object which was struck, and (2) the manner of the striking. As noted by the authorities, there is an irreconcilable conflict in the efforts of the various courts in construing the meaning and application of the word “collision” as it appears in insurance policy clauses of the type before us. Some courts construe the word narrowly by limiting its meaning to a so-called “popular conception”, i. e. the striking with force some foreign or perpendicular object, and thereby exclude contact with the ground of the highway or shoulder. The majority of the courts, often noting there is no proof that the word “collision” has some commonly known and generally recognized restrictive meaning in insurance contracts take the viewpoint that the word “collision” should be defined broadly and in its dictionary sense to mean “striking together” or “striking against”, thus including every contact with any part of the highway. See, Annotations, 23 A.L.R.2d 389, 105 A.L.R. 1428 ; 42 A.L.R. 1130; 40 A.L.R. 999; 35 A.L.R. 1030 ; 30 A.L.R. 807 ; 26 A.L.R. 429; 14 A.L.R. 188. In Missouri in principle we have adopted the more liberal construction. In Boecker v. Aetna Casualty and Surety Co., Mo.App., 281 S.W.2d 561, 563, the St. Louis Court of Appeals stated: “Collision, as the term is used in policies of automobile insurance, has been defined as ‘the act of colliding; a striking together; violent contact,’ and implies ‘an impact, the sudden contact of a moving body with an obstruction in its line of motion.’ Berry, Law of Automobiles, 7th Ed., Vol. 6, p. 664 et seq. In 11 C.J. 1011 the term ‘collision’ is defined generally ‘as the act of colliding; a dashing or violently running together; injuries from one thing being rubbed or pressed against another; a striking against, as where the object struck is a brick, stone, or other solid substance; a striking together * * *; violent contact.’ See also 15 C.J.S., Collision, p. 1. * * * ‘Violent’ is a relative term. No particular degree of force is required to constitute violence. Violence is broadly defined in Webster’s New International Dictionary, 2d Ed., as ‘the exertion of any physical force considered with reference to its effect on another than the agent’.” And see, Boenzle v. United States Fidelity & Guaranty Co., Mo.App., 258 S.W.2d 938(6).

We believe the use of the dictionary or broad definition of the word “collision” is sound for it is in accordance with the fundamental principle of construction of insurance contracts that where reasonable to do so such contracts are to be construed in favor of the insured so as to provide coverage and against the insurers who drafted the instrument.

We next consider how various courts have defined the word "object” as contained in this type of policy provision, for the policy clearly requires that there must be a collision of the automobile with another object. Here, the myriad of cases on the subject are in apparent general accord in that they hold the rule of ejusdem generis to be inapplicable and support the general rule that the word “object” means anything tangible and visible and is not confined to objects similar to an automobile or another vehicle. We follow this definition in Missouri. See, Rouse v. St. Paul Fire & Marine Ins. Co., 203 Mo.App. 603, 219 S.W. 688. A slightly different definition, but helpful, was given by the court in Columbia Ins. Co., Jersey City, N. J. v. Chatterjee, 93 Okl. 249, 219 P. 102, where the word “object” was said to mean “any tangible thing, visible or capable of discernment by the senses, which offers an impediment or resistance to another object in motion.”

Courts which have ascribed to a dictionary or broad definition of the word “collision” have held that an impact between a motor vehicle and obstacles on the road •such as rocks, barricades, holes, excavations, ■and washouts are collisions with another •object within the policy provisions. See, 23 A.L.R.2d Sec. 6, page 403. On the other hand it has been held that contact of an automobile with the road itself, as where the road surface is irregular or has rough spots, •does not constitute a collision with an object within the meaning of the policy, and this •sometimes because of a general feeling that the policy as “popularly understood” was not intended to furnish coverage for that type of accident and sometimes because it was felt that since the automobile wheels were already in constant contact with the highway surface and in a sense striking it as the wheels turned around the collision •clause was intended to refer to some other •object than the road upon which the automobile is being driven. As stated in Great Eastern Casualty Co. v. Solinsky, 150 Tenn. 206, 263 S.W. 71, 35 A.L.R. 1013, “Being already upon the road, and in contact with it, there can be no collision in the sense that the term contemplates two separated objects coming together.”

However, it is obvious from a study of the decisions that where the impact or striking occurs other than on the road proper, i. e. not on that part constructed, intended and used for travel thereon, the tendency is more liberal toward finding coverage upon impact between the vehicle and another object, including those formed by the terrain. Examples are impact with ruts, embankments, ditches, shoulders, ledges, slopes, ridges, earth at bottom of decline and other things. See, Annotation, 23 A.L.R.2d, Section 13, page 421; 6 Blashfield, Cyc. of Automobile Law and Practice, Sec. 3691, pages 286-289 ; 5 Appleman, Ins. Law and Practice, Section 3201, page 340-346 ; 45 C.J.S., Insurance, § 797, page 836-838; 5A Am.Jur., Automobiles, Section 59, page 59.

After considering these authorities we are persuaded that in line with the general rules as applied by what we believe to be the better reasoned cases the collision coverage provisions of the policy before us should be construed to cover the stipulated incident. It is apparent from the agreed facts that when the tractor-trailer left the paved portion of the highway and its wheels were “suddenly and partially submerged in the soft soil” there was sharp impact between those wheels and the somewhat perpendicular dirt immediately in contact with those wheels in front of them, offering an impediment and obstacle to such an extent that the vehicle’s speed was “suddenly slackened” * * * “materially reducing and quickly stopping the machine’s forward motion”; causing an “abrupt stoppage” of the vehicle, resulting in extensive damage. Differently stated, when the wheels went off the paved road and suddenly submerged they necessarily collided with the solid bank of earth in front of them which constituted a sudden, immediate and substantial- obstacle to their forward progress. It was a sudden contact of a moving body, the vehicle, with an obstruction in its line of motion. This solid bank of earth was not a part of the regular roadway intended and used for travel. It presented as much a barrier or obstacle to the forward motion of the vehicle as a substantial ridge or ledge would to an automobile traveling on a solid shoulder.

There is another factor supporting the result we have reached. If the insurer had desired to absolve itself from collisions of this character it should have tendered a policy containing appropriate restrictive •or limiting clauses. Numerous policies have been written excluding damages occasioned by collisions with portions of the roadbed, some specifically excluding the shoulders, and the insurance companies must be presumed to know how to accomplish this. See Rouse v. St. Paul Fire & Marine Ins. Co., supra; Annotation, 23 A.L.R.2d, Section 11, page 415; Gibson v. Georgia Life Insurance Co., 17 Ga.App. 43, 86 S.E. 335; Hoosier Mut. Automobile Ins. Co. v. Lanam, 79 Ind.App. 629, 137 N.E. 626.

The remaining question is whether the insurer is guilty of vexatious delay in refusing to pay the claim. The precise question presented to the insurer was novel and not entirely free of reasonable debate. There is nothing to indicate that the insurer did not act in good faith. Under such circumstances it is entitled to have the issue involved passed upon without the imposition of a statutory penalty for vexatious refusal to pay. The trial court did not err in refusing to award damages for vexatious delay. See, Section 375.420 RSMo.1959, V.A.M.S.; Delametter v. Home Ins. Co., 233 Mo.App. 645, 126 S.W.2d 262; Bechtolt v. Home Ins. Co., Mo.Sup. 322 S.W.2d 872.

The judgment is affirmed.

All concur.