author: DUNAGAN, Chief Justice.

text:
    Jeffrey V. MILLER, Appellant, v. Bernard ESUNAS, Appellee.
    No. 173.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 27, 1966.
    On Rehearing March 17, 1966.
    Second Rehearing Denied April 7, 1966.

      Wm. Andress, Jr., Andress, Woodgate, Richards & Condos, Dallas, for appellant.
    W. S. Barron, Jr., and Bill E. Brice, Geary, Brice & Lewis, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This suit was instituted by appellant Miller against appellee Esunas in the 134th Judicial District Court of Dallas County, Texas. The appellant in Paragraphs 1, 2 and 3 of his first amended original petition and as the basis for his cause of action against the appellee alleges:

“1.
“At all times hereinafter set forth defendant was a practising petroleum geologist, holding himself out to the public as qualified to give expert opinions on geological conditions and the advisability of drilling oil wells.
“2.
“In the fall of 1957 plaintiff became interested in procuring a lease on Section 39 in Block 4 of the H & T C Railway Company Surveys in Crane County, Texas, from Republic National Bank of Dallas, Trustee, the owner thereof but before entering into any such lease or undertaking any financial obligations in connection therewith, the plaintiff employed defendant to investigate said property and furnish him a report thereon.
“3.
“Thereafter, prior to 1 March 1958, defendant furnished plaintiff a written report, containing among other data the following statements:
“ ‘The following geological information was secured in order to classify the acreage as a drillable prospect:
“‘1. Core Hole Information: (Yates). The Yates Marker was used in contouring this prospect, which resulted in a closed geological feature. At this point the writer wishes to call attention to the importance of a Yates closure in this portion of Crane County, Texas. To date, all structures with a Yates closure have resulted in an oil or gas discovery. For reasons unknown, the Yates structure reflects deeper structures, regardless of the known unconformities that we encountered.’
“ ‘ 1. Queens
2. San Andres
3. Glorietta
4. Tubb Zone
5. Basal Permian
6. Devonian
7. Silurian-Montoya
8. McKee Sand
9. Waddell
10. Connell
11. Ellenberger
“Attached to and a part of said report was a map of Block 4 prepared by defendant with overlays, showing two core holes in the adjacent section 40 with elevations of 990 and 1003 feet. Such report contained a recommendation that a well be drilled to test the Ellenberger lime, approximately 7700 feet deep, at a recommended location of the Northeast quarter of the Northeast quarter of Section 39 of the H & T C Railway Company Surveys, Block 4, in Crane County, Texas.”
“Said report also listed the following as possible pay zones:
Approx. 2400'
“ 2475'
“ 3500'
“ 4200'
“ 4800-5300'
“ 5400' (possibly eroded)
“ 5500'
“ 6500'
“ 6950'
“ 7150'
“ 7300”

Appellant further alleged in said petition that in reliance on such report, he secured a lease on said Section 39 from the Republic National Bank of Dallas, trustee of the Wirt Davis Estate, and that said lease required as a drilling covenant that the plaintiff should drill a well to the El-lenberger lime at the location recommended by appellee in the Northeast quarter of the Northeast quarter of Section 39. That appellant proceeded to drill said well, penetrating the Ellenberger lime to a depth slightly in excess of 7300 feet, without securing any showing or trace of oil and that there was no Yates closure encountered nor did plaintiff encounter the formation of McKee Sand, Waddell, Connell, Glorietta or Queens. That the well was plugged and abandoned as a dry hole at a depth of 7346 feet. As a result of his failure to encounter the Yates closure or the formations reported by appellee as possible pay zones, he proceeded to investigate and was advised by the Railroad Commission of Texas in February, 1959, that no permits had ever been issued by the Railroad Commission of Texas for the drilling of any core holes on Section 40, and that there was no record in the files of the Railroad Commission of Texas showing that any such core holes had ever been drilled.

Appellant’s Paragraph 7 of his first original amended petition alleges that:

“The defendant’s report, therefore, purportedly based upon core hole information, and purportedly showing the location of core holes, was false, which fact was and must have been known to the defendant when he prepared and submitted his report to the plaintiff, knowing that the plaintiff would rely thereon and incur substantial expense and obligation as a result of such reliance, which plaintiff did.”

In said petition appellant also alleged that in the acquisition of the lease, the arrangements for the financing of the drilling, and the drilling itself, the plaintiff expended the total sum of $102,744.73 which was a total loss to him, and which was caused by the fraudulent misrepresentations of the appel-lee, and that such sums were reasonably and necessarily expended in such operations, and was the reasonable costs thereof; and that he is entitled to recover such sums, with interest thereon from the time of such expenditure.

This was a jury trial and the case was submitted to the jury on 13 Special Issues. The jury found in its answer to Special Issue No. 1 that appellee did not on or before March 1, 1958, represent to appellant, as a fact, that two core holes existed in Section 40 adjoining the lease in question. This thereby precluded the necessity of answering various conditional Special Issues which were additionally submitted thereon. The jury did further find, however, in its answers to Special Issues 8, 9, 10 and 11 that appellant did not hire or employ appellee to write and compile the geological report, but that they agreed with each other to enter into a joint undertaking for the drill- • ing of the well in question; that such report was furnished by appellee to appellant as a part of such joint undertaking; and that same was not abandoned on or before March 1, 1958.

On the verdict of the jury, the court rendered judgment that appellant (plaintiff below) take nothing by his suit.

At the outset, we are confronted with the question of whether it is disclosed by the transcript that the jurisdiction of this court is invoked.

The judgment disposing of the case on the jury findings was signed on December 2, 1964. If an original motion for a new trial was ever filed and when is not disclosed by the transcript. The transcript does show the filing on December 31, 1964, of an amended motion for a new trial. This was more than 10 days after the judgment complained of by this appeal. The transcript shows that the amended motion was heard, considered and overruled on February 12, 1965.

The notice of appeal appearing in the transcript was filed March 11, 1965. The appeal bond was filed March 11, 1965.

It is elementary that when our jurisdiction is invoked, the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. 3 Tex. Jur.2d, Section 383, page 641; Needham v. Austin Electric Ry. Co., 127 S.W. 904, (Tex.Civ.App.) 1910, n. w. h.; Selman v. Ross, 302 S.W.2d 752, (Tex.Civ.App.) 1957, n. w. h.

The facts in Selman v. Ross, supra, are on all fours with the facts in the instant case. The facts in that case reveal that the order appealed from was dated May 30, 1956; that the transcript did not disclose the filing of an original motion for new trial but did disclose an amended motion for new trial was filed on June 11, 1956; that the amended motion was heard and overruled on July 19, 1956, and notice of appeal was given in open court on the same day. The appeal bond was filed on August 6, 1956. The court in dismissing the appeal in the Selman case because the transcript failed to disclose affirmatively it had jurisdiction stated:

“It is now well settled that the filing of an original motion for new trial within a ten day period after the rendition of any judgment or order complained of is jurisdictional where the appeal is from an order overruling a motion for a new trial. A later filing is a nullity. Starr County v. Guerra, Tex.Civ.App., 282 S. W.2d 304, albeit such late filing may very well serve as a reminder to the trial court of his power over his own minutes within thirty days after the rendition of any judgment or order. It is true the trial court retains jurisdiction for thirty days after the rendition of any judgment or order to set it aside, with or without the filing of any motion for a new trial, but this fact is not relevant to the requisite steps required to give us jurisdiction even in a nonjury case such as the present, where no motion for a new trial is required for appeal, when the appeal is from the order overruling the motion for new trial as distinguished from the order complained of. * * * (citing cases). It is possible that an original motion for new trial was actually filed sometime before June 11, 1956. It is equally possible that this is not so, or that the original motion, if any, was itself filed as late as June 11, 1956. The facts in this respect, so far as the transcript shows, are speculative.
“ * * * If the appeal be considered as one from the order overruling the amended motion for new trial, it is equally evident that there is no affirmative showing that an original motion was filed within the ten day period contemplated by the mandatory provisions of Rule 329-b, Subsection 1, Texas Rules of Civil Procedure, fixing the time allowance for the filing of original motions for new trial.”

As additional authorities, we cite Needham v. Austin Electric Ry. Co., supra; and Hartford Accident & Indemnity Company v. Gladney, 335 S.W.2d 792, (Tex.Civ.App.) 1960, writ refused, n. r. e.

Moreover, it has been held in this state that Rule 329b, subd. 2 requires an amended motion for new trial be filed within 20 days of the original motion and the rule is mandatory; and that where an amended motion for new trial is filed more than 20 days after the original motion, the amended motion is ineffective, cannot be considered for any purpose, and is a nullity. Erwin v. Welborn, 207 S.W.2d 124, (Tex.Civ.App.) 1947, writ refused, n. r. e.; Arana v. Gallegos, 279 S.W.2d 491, (Tex.Civ.App.) 1955, n. w. h.; Valley Transit Co., Inc. v. Lopez, 263 S.W.2d 830, (Tex.Civ.App.) 1953, writ refused; Dyche v. Simmons, 264 S.W.2d 208, (Tex.Civ. App.) 1954, writ refused, n. r. e.; Traders & General Ins. Co. v. Scott, 189 S.W.2d 633, (Tex.Civ.App.) 1945, writ refused, w. m.

As the transcript fails to disclose the filing of an original motion for new trial, this court cannot ascertain whether the amended motion was filed in 20 days after the original motion was filed, if one was filed. Therefore, we are unable to determine whether the amended motion has been timely filed so that the assignments therein contained can be considered by this court on appeal.

The transcript fails to disclose affirmatively that we have jurisdiction of the appeal.

Appeal dismissed.

ON APPELLANT’S MOTION FOR REHEARING

Earlier in this term we dismissed this appeal because the transcript failed affirmatively to disclose that we had jurisdiction. Appellant later filed a supplemental transcript from which, in connection with the original transcript, it now appears that we do have jurisdiction. Appellant has moved for rehearing and that we set aside our former order dismissing the appeal. The motion is well taken and our former order is set aside and the appeal reinstated.

The appellant charges the appellee with fraud, alleging that the appellee’s geological report, purportedly based upon core hole information and purportedly showing the location of core holes, was false, which fact was and must have been known to the appellee when he prepared and submitted his report to the appellant, knowing that appellant would rely thereon and incur substantial expense and obligation as a result of such reliance, which plaintiff alleges he did.

It is appellant’s contention that the significance of a core hole is that it is a geological factor in establishing a geological “high.” Significant information in this respect can also be obtained from a well which has been drilled, whether a producer or dry hole, where there is the additional advantage of the information obtained from logs and tests, such as drill stem tests. Appellant testified at one point that the presence of absence of core holes in the report did not mean anything to him; he relied on appellee’s conclusions based thereon.

The geological report is based in part on various geological information available to appellee, including logs from other wells, drilled in the area and certain core hole information. At the time appellee Esunas delivered the report to appellant Miller, and at numerous other times both before and thereafter, appellee told appellant that the core hole information had been passed on to him from other geologists; and that he could not prove that such core holes existed or give him any logs on them. Appellant admitted that appellee told him that the information had been given to him by some other geologist or engineer, but appellant maintains that appellee told him that he had to protect such party and could not divulge the source.

The parties were looking for high structure in the Yates Sand, a shallow non-producing sand which is indicative of closed geological features below in which oil may be trapped. It is shown that the appellee’s projections as contained in such report were quite accurate. The sand in which they hoped to find oil — the Ellenberger— was encountered in the well at almost the exact depth as projected. Of course, all geological structures do not contain oil, which accounts for why, as the record shows, that there have been numerous geological successes which are oil failures. With appellant’s experience in the oil business, he was aware of the obvious fact that no geologist could guarantee the finding of oil and appellee’s report in question did not purport to do so.

A geological report is analogous to one who might be seeking the whereabouts of Sam Jones and in so doing receives information that Sam Jones maintains a home at Tyler, Texas, 1420 Oakwood Street, and that he might be found there. Perhaps upon arriving at this address expecting to find Sam Jones, you learn that he is not at home. This would not be evidence that the information given was false or misleading. Even though the informant had pointed out to his inquirer where he would be expected to find Mr. Jones, the only way that it could be ascertained whether or not Mr. Jones was there was by reaching the address previously given. A geologist can only, through his skill, training and knowledge of a particular area, supply information as to where structures, pinch-outs, or other traps that may contain oil or gas may be found, but the only way of ascertaining if oil or gas is actually there is by drilling into such structures or formations.

Appellant’s first two Points of Error read as follows:

“Point One: Esunas having admitted under Rule 169 that he showed the existence of the core holes on his written geological report furnished to Miller, this was conclusive as a judicial admission, and there was no evidence to sustain the jury’s finding to the contrary in answer to Special Issue No. One.
“Point Two: Esunas having admitted under Rule 169 that he showed the existence of the core holes on his written geological report furnished to Miller, there was no issue of fact justifying submission of Special Issue No. One asking whether Esunas did represent as a fact to Miller that two core holes existed.”

Appellant by his Points 1 and 2 contends that appellee’s answers to appellant’s requests Nos. 3 and 4 in his request for admissions, to the effect that appellee furnished appellant a written report containing core hole information and showing core holes, constituted a judicial admission by appellee and that he represented to appellant — as a fad — that core holes existed. Appellant therefore urges that Special Issue No. One should not have been submitted and that no evidence bearing on such issue should have been heard.

Appellee, by the way of counter points, contends that “The jury found on ample evidence that appellee did not represent to appellant — as a fact — that certain core holes existed, and the trial court properly rendered judgment in favor of appellee based thereon;” that “Appellee’s answers to appellant’s request for admissions pursuant to Rule 169 show that appellee fully disclosed to appellant that he was without knowledge as to the actual existence of core holes, and the trial court properly submitted the issue of misrepresentation to the jury.” This contention we sustain.

The appellant’s position is based upon the erroneous assumption that the questions propounded by him in his requests Nos. 3 and 4 embrace the ultimate issue submitted to and determined by the jury as to whether “On or before March 1, 1958, the defendant, Bernard Esunas, represented to Jeffrey V. Miller, as a fact, that two core holes existed in Section 40 adjoining the lease in question.” There is a considerable amount of evidence (some of which came from appellant himself) that appellee repeatedly told appellant in connection with the report that the core hole information was something which he had been told by others and that he could not prove that such core holes existed. This evidence must be considered in answering the ultimate issue of whether appellee made the representation, as a fact.

This is in accordance with settled law on the subject. As stated in 25 Tex.Jur.2d 675, Section 39:

“An action for fraud may not, ordinarily, be based on statements that are expressly declared to be made merely on information. Such statements may, however, amount to positive statements of fact if full responsibility for their truth is assumed. * * * ”

See also Foster v. L.M.S. Development Co., 346 S.W.2d 387, 396, (Tex.Civ.App.) 1961, error refused, n.r.e., wherein it is held that:

“ * * * Fraud is not to be predicated on statements expressly represented to be made merely on information. * * * ”

The appellee in his brief says:

“Actually the ultimate issue of whether appellee represented the existence of core holes as a fact is possibly established by the evidence as a matter of law in favor of appellee rather than appellant.”

Be that as it may, such issue was submitted to the jury and was answered adversely to appellant.

The issue as to whether appellee made a misrepresentation as a fact was one which formed a part of appellant’s case and on which it devolved upon him to carry the burden. Appellant made no objection to Special Issue No. 1 as submitted by the trial court, either as to form or substance. The trial court properly submitted the ultimate issue, and in so doing he observed the mandate of Rule 279, Texas Rules of Civil Procedure, that “he shall submit the controlling issue [s]” without the necessity of submitting “other and various phases or different shades of the same issue.” Neither party objected to such issue.

Appellee does not deny that he furnished the written geological report inquired about in the appellant’s requests Nos. 3 and 4, nor did he take a contrary position at trial. The point is, however, that the matters inquired about do not embrace the ultimate issue of whether, under the evidence in this case, the particular representation was ■ in fact made. Appellee’s answer to appellant’s request No. 5 clearly shows that appellee fully disclosed his lack of knowledge to appellant. Appellant’s Points 1 and 2 are without merit and are overruled.

Appellant by his Point No. 3 contends that “Miller having contracted with the landowner to drill the wells, the costs of which he seeks to recover from Esunas as damages for fraudulent misrepresentation, the source of his financing constitutes no defense available to Esunas, and evidence thereof was inadmissible and prejudicial.” The jury’s finding in response to Special Issue No. 1 that there was no representation as a fact that appellee represented to appellant that two core holes existed in Section 40 adjoining the lease in question, renders this point immaterial. In view of this finding of the jury, the error, if it is error, it is not material to the outcome of the suit, and under Rule 434, T.R.C.P., furnishes no proper basis for a reversal of the judgment. Pride v. Pride, 318 S.W.2d 715, (Tex.Civ. App.) 1958, no writ history. Error in admitting or excluding evidence becomes immaterial where the case does not turn on the excluded or admitted evidence, that is, where it is not material and does not affect the verdict and judgment rendered. Flores v. Missouri-Kansas-Texas Railroad Company, 365 S.W.2d 379, (Tex.Civ.App.) 1963, writ refused, n. r. e.; Gross v. Dallas Ry. & Terminal Co., 131 S.W.2d 113, (Tex.Civ. App.) 1939, writ dismissed, judgment correct. This Point is overruled.

Appellant by his Points 4, 5, 6 and 7 complains that the trial court required the plaintiff to give the defendant the benefit of his self-serving additions to the answer for request for admissions; would not permit the plaintiff to testify that the showing of core holes on the geological report was material and that he relied upon them; would not permit the plaintiff to explain the meaning of the technical exhibit concluding a portion of the geological report while permitting defendant to do so; and would not permit the plaintiff to refresh his memory of exact figures from five years before without cluttering up the record with irrelevant instruments. We have carefully considered these Points and under the record in this case, we believe them to be without merit and each are overruled. We have likewise considered appellant’s Points of Error Nos. 8 and 9 and the same are overruled for lack of merit.

Appellant had his day in court before a jury which found against him on the facts and we hold that the testimony was ample to support the jury findings.

The jury finding in response to Special Issue No. 1 alone is sufficient to preclude a recovery of damages by the appellant under the pleadings and evidence in this case.

Finding no reversible error in the record, the trial court judgment is affirmed.

      . Do you find from a preponderance of the evidence that on or before March 1, 1958, the defendant, Bernard Esunas, representing to Jeffrey V. Miller, as a fact that two core boles existed in Section 40 adjoining the lease in question?
      Answer “Yes” or “No.”
      ANSWER: Nq_


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    TEXAS BELTING & MILL SUPPLY COMPANY, Appellant, v. C. R. DANIELS, INC., Appellee.
    No. 14754.
    Court of Civil Appeals of Texas. Houston.
    March 24, 1966.

      Crocker & McDonald, Toy A. Crocker, Fort Worth, for appellant.
    Ross, Banks, May & Cron, John A. Ca-vin, Houston, for appellee.
   BELL, Chief Justice.

Judgment was rendered by the court against appellant on an account in the amount of $1,003.39 plus an attorney’s fee of $300.00.

Suit was by way of a sworn account. There was no contest of the correctness of the account. The defense was that appel-lee had accepted a plan submitted by a creditors’ committee whereby the unsecured creditors of appellant would accept 20 cents on the dollar in payment of appellant’s indebtedness and that by its conduct after its original acceptance appellee was estopped to withdraw its acceptance.

The evidence shows that appellant’s president on April 8, 1964 met with a group of appellant’s larger creditors at the office of Houston Association of Credit Management, Inc., herein called Association, to discuss appellant’s financial affairs. It was there determined that appellant was insolvent and it was decided to call a creditors’ meeting.

On April 29 a meeting of creditors was held. It was there determined that if appellant went into bankruptcy the creditors would receive less than five cents on the dollar. A creditors’ committee was formed. It was proposed that B. G. Wells of Fort Worth would assume responsibility for operating the business, would hold 52% of appellant’s stock in escrow and would be paid for his services. If 100% of the creditors accepted, Mr. Wells would own the 52% of the stock. Wells agreed to begin operating the business on May 4, 1964. It was proposed that if 100% of the creditors accepted, 20% of the debts would be paid creditors, the amount to be paid in five installments, the first to be paid July 1, 1965.

On May 12, 1964, a letter setting out the proposal was sent the creditors. In the letter it was stated that Mr. Wells had voluntarily consented to begin work on May 4, 1964, but he understood the agreement and his continuing to work was subject to the approval of 100% of the unsecured creditors.

The appellee accepted the proposal about June 16, 1964.

On November 6, 1964, the creditors’ committee wrote the creditors that it had been unable to procure the consent of 100% of the creditors and proposed that the original requirement be changed so as to make the composition agreement effective if accepted by 90% of the creditors. The last paragraph of this letter to the creditors read as follows:

“Should you have any opinion or suggestion which would be of assistance to either the Creditors’ Committee or Texas Belting & Mill Supply, please address your replies to Mr. J. D. Wittmayer, Chairman of the Creditors’ Committee, * * * The active operation of the business by Mr. B. G. Wells under the reorganization plan will begin immediately and will continue according to the plan unless a notice of exception is received within ten days.”

On December 3, 1964, the Creditors’ Committee was notified by appellee through its attorneys that it would not accept the last proposal. This was beyond the 10 day period allowed in the letter. Appellant was not notified of such refusal to accept until the day of service of citation in this suit.

On trial Mr. B. G. Wells testified. The substance of his testimony was that he was contacted in April, 1964 about coming from Fort Worth to Houston to investigate appellant’s affairs to see if he would be interested in assisting in helping work out appellant’s difficulties. He attended the creditors’ meeting of April 29, when the terms of the first proposal for a creditors’ composition were worked out. On May 4, as proposed, he began working at appellant’s business. He continued to work with the business and attended the meeting of November 6. He stated he would not have continued his work if any of the creditors who had accepted the first agreement refused to accept the second proposal. However, he stated that after the 10 day period allowed in the last letter, appellant began to increase its inventory and he loaned money to appellant. Appellant engaged the services of other employees. Mr. Wells moved his family to Houston in September, 1964. Several jobs were contracted by the appellant. They were completed and a profit was made on them. The money loaned by Mr. Wells was both prior to and after the modification agreement. He loaned $4,500.00 after submission of the modification agreement. The only money owed him was advanced after the Committee had been notified of its rejection of the second proposal.

What is thus presented is not that appellant has changed its position to its detriment in reliance on appellee’s failure to withdraw its consent given to the original proposal within the 10 day period set out in the modified proposal, but a contention by Mr. Wells that he would not have continued his association with the company if appellee had rejected the modified proposal.

Mr. Wells is not a party to the suit. No liability is asserted against him. He was really not a party to the composition agreement and may not rely on estoppel to create any rights in himself. Cone v. Cone, Tex. Civ.App., 266 S.W.2d 480, writ dism.

Also, the facts in evidence show Mr. Wells did most of his acts prior to the submission of the modification proposal. He really commenced his association in May of 1964, and has continued it. He moved his family to Houston in September, 1964. We find no change of position by Mr. Wells on the strength of appellee’s action with regard to the modified proposal.

As to the appellant, it is observed that it could not require appellee to accept a composition agreement. Appellee’s acceptance of the first proposal was conditioned on its being approved by 100% of the creditors. The condition not having been complied with, no right in favor of appellant was created. When the modified proposal was sent, there was no duty on the part of appellee to act one way or the other. The above statement quoted that the operation would continue if no exception was made within 10 days did not place a duty on appellee to act.

Additionally, there is no evidence that 90% of the creditors ever accepted so as to effect any composition of creditors.

Complaint is made of the allowance of $300.00 attorney’s fees. It is admitted that before the proposed composition of creditors demand for payment was made but no additional demand was made before suit was filed. We hold under the facts above recited that no additional demand was necessary.

Affirmed.


author: PARKER, Justice.

text:
    R. L. McDONALD, d/b/a Mack’s Farm & Ranch Supply, Appellant, v. J. P. HILL et ux., Appellees.
    No. 6771.
    Court of Civil Appeals of Texas. Beaumont.
    March 10, 1966.
    Robert Willis, Livingston, for appellant.
    Robert F. Atkins, Coldsprings, for ap-pellees.
   PARKER, Justice.

J. P. Hill and wife, Madaline Hill, sued R. L. McDonald, d/b/a Mack’s Farm and Ranch Supply, for excessive charges on feed, damages caused plaintiffs by defendant threatening to file criminal charges against plaintiffs and other matters immaterial to disposition of this case. Defendant filed a plea of privilege to be sued in Polk County, where he resided. Plaintiffs controverted defendant’s plea of privilege. Order overruling plea of privilege of defendant was entered October 20, 1964. Appeal therefrom was duly perfected by defendant below, appellant here.

No briefs have been filed. The cause was submitted on a transcript and statement of facts. There is no fundamental error. Appellant having failed to file his brief in the time prescribed, which by extension granted was January 1, 1966, under authority of Rule 415, Texas Rules of Civil Procedure, this appeal is dismissed for want of prosecution.


author: CLEMENS, Commissioner.

text:
    NORTHEAST MISSOURI ELECTRIC POWER COOPERATIVE, a Corporation, Plaintiff-Respondent, v. C. S. TODD and Reba Todd, His Wife, and Champ B. Todd and Mary Ellen Todd, His Wife, Defendants-Appellants.
    No. 32172.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.

      J. Andy Zenge, Jr., Dennis W. Smith, Canton, for appellants.
    J. Patrick Wheeler, Canton, Gregory C. Stockard, Jefferson City, for respondent.
   CLEMENS, Commissioner.

This is a condemnation suit for a power line right-of-way across the defendants’ farm. There was a $3,290 verdict and judgment for the defendants, but they appealed when the trial court set aside that judgment and granted the plaintiff a new trial. Although there were four owner-defendants, only Champ B. Todd took part in the proceedings and he will be referred to in the singular as the defendant.

We first note the narrowed scope of our review. The trial court did not Comply with Civil Rule 78.01, V.A.M.R., which required it to specify the reasons for granting the new trial. In the absence of such reasons, a different set of principles governs the scope of our review. First, we may not indulge in any presumption that the new trial was granted on discretionary grounds. Second, we presume that the new trial was granted erroneously. Third, the burden is on the plaintiff-respondent to demonstrate on the record that there was reversible error. Fourth, in meeting that burden the plaintiff-respondent is confined to the errors specified in both its motion for a new trial and its brief. Civil Rules 83.06(b) and (c) and 83.13(a); McCormack v. St. Louis Public Service Co., Mo., 337 S.W.2d 918 [2]; Myers v. Moffett, Mo., 312 S.W.2d 59 [3]; Drake v. Hicks, Mo., 261 S.W.2d 45 [1-3]; Gayer v. J. C. Penney Co., Mo.App., 326 S.W.2d 413 [1].

In the plaintiff-respondent’s motion for a new trial it asserted seventeen grounds, and it has briefed ten of them here. Because of the above restrictions on the scope of our review, we have only two issues to decide. First, where there was neither evidence of community need for defendants’ farm as an airstrip nor evidence that its suitability for an airstrip would enhance its market value, could the defendant testify as to his plans to build a private airstrip on the farm, and could he give his opinion as to how much the farm value had depreciated because the plaintiff’s power line had kept him from building the airstrip? Second, where the owner’s opposition to the condemnation had been made known to the jury, was it prejudicially erroneous to instruct the jury that the plaintiff was taking the defendants’ land against their will?

The proceedings began in 1962 after plaintiff had been authorized to build a single-pole, electric transmission line in Lewis County. It was designed to cross defendants’ 291-acre farm diagonally on a 100-foot right-of-way and required the installation of eleven poles carrying three live wires and one static wire. After fruitless negotiations with the defendant, plaintiff filed its petition to condemn. An order of condemnation was duly entered, and commissioners assessed the defendants’ damages at $495. The defendants filed exceptions to the award, and in due course the cause was tried before a jury to assess the defendants’ damages.

The defendants’ value witnesses put their damages as sums ranging from $1,500 to $2,910; plaintiff’s value witnesses said it was from $500 to $575. In addition, defendant testified that the power line had thwarted his plan to build an airstrip on the farm, and that he thereby had been separately damaged to the extent of $5,000 to $7,000.

Plaintiff’s motion for new trial and its brief charge error in the admission of evidence concerning the suitability of defendants’ land for an air landing strip, the defendant’s plans to use it for that purpose, and his opinion as to the further reduction in the value of the farm because plaintiff’s power line had made it unsuitable for landing airplanes.

The defendant testified that during World War II he had taken flying lessons, but that his student pilot’s license had long since expired and was never renewed. Nonetheless, about a year before the taking he had joined a ten-man flying club and bought a fractional interest in a small airplane. Shortly thereafter the club disbanded and the plane was sold, but in the meantime the defendant and a commercial pilot had examined the defendants’ farm both from the air and on the ground. They had then determined that a suitable sod runway could be laid out on the farm, and defendant “planned” to do so. However, when plaintiff’s power line was proposed, the plan for the landing strip was abandoned because of interference by the power line. There was no evidence of any existing or expected business or community need for the airstrip; nor was there any evidence relating the planned use to the reasonable market value of the farm. Only the defendant testified as to damages connected with the use of the farm for an airstrip. He said that in addition to the agricultural damage to the farm, its value to him had been further reduced by as much as $5,000 to $7,000 just because it was no longer suitable for a landing strip. On cross-examination he testified:

“Q How do you figure that the value of the land, then, would be decreased from five to seven thousand dollars by reason of the fact there was no airstrip on the land?
“A Because I feel it would take that much — I think you might misunderstand there — I said I was damaged that much, not that the property would be decreased. It would be decreased that much to me.
“Q Well, now, that’s different. It’s not your testimony, then, that your farm Would bring five to seven thousand dollars less money by reason of the fact you didn’t have an airstrip there?
“A It could possibly if the person who purchased it was interested in an airstrip, but I don’t know who would be the person.”

The defendant’s testimony showed that the proposed use of the farm to land airplanes was speculative and was personal to him. And, we view the quoted testimony as showing that this additional claimed reduction in value was also wholly personal to him and had no relation to the real issue: the reasonable market value of the farm before and after the taking.

This subject of a planned airstrip saturated the trial. The defendants’ opening statement included, over plaintiff’s objection, an outline of the testimony about the planned airstrip and its separate value. The testimony was repeatedly objected to, and plaintiff’s motions to strike were denied. Again, over plaintiff’s objections, defendant stressed this element of damage in closing argument. The $3,290 verdict exceeded the maximum $2,910 amount of defendants’ evidence of agricultural damage. It is evident, therefore, that the jury did consider the evidence as to the separate damage by loss of the planned airstrip. So, if the admission of this evidence was error, it was prejudicially so.

The defendants maintain that the challenged testimony was proper because it showed the highest and best use of their land. They cite five cases which say that a condemnee may do so. But, either expressly or by clear implication, those cases condition the admissibility of such evidence on the condemnee’s further showing a demand in the community for such future use, beyond mere speculation by the owner; and, also, on showing that there is a relationship between such future use and the present value of the land. These limitations are declared in the cases of Empire Dist. Electric Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78 [3-6], and Union Electric Co. of Missouri v. McNulty, Mo., 344 S.W.2d 37 [4], quoting 29 C.J.S. Eminent Domain § 160. The limitations are summarized in 18 Am.Jur., Eminent Domain, § 244:

“Value for Prospective or Available Uses by Owner. — The tribunal whose duty it is to determine the value of land taken by eminent domain is not limited to the value of the land for the purposes for which it is actually used, but may consider all uses to which it is adapted and might be put, and will award compensation upon the basis of its most advantageous and valuable use, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. * * * The uses which may be considered must be so reasonably probable as to have an effect on the present market value of the land; a purely imaginative or speculative value cannot be considered. There must be a possibility considerable enough to be a practical consideration and actually to influence prices. * * * ”

The challenged testimony here did not rise to the prescribed level, and we are compelled to hold that its admission was prej-udicially erroneous.

In its motion for new trial and in its brief here, the plaintiff also challenges a portion of defendants’ verdict-directing instruction. It began with an abstract statement that the corporate plaintiff had the right to condemn the right-of-way “and thereby take defendants’ property without their consent, against their will.” Ruling on a similar instruction in the case of State ex rel. State Highway Commission v. Goodson, 365 Mo. 260, 281 S.W.2d 858 [2, 3], the court said such a statement presents no proper factual issue and “ * * * is in apt language to inflame the minds of the jurors, to arouse their sympathy for the defendants and prejudice against the plaintiff, and for a verdict in a larger amount than warranted by an impartial consideration of the evidence. * * * ” Defendants urge, correctly, that the challenged words are erroneous only if the complaining party has been prejudiced or the jury misled thereby, citing the Goodson case, supra, and City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839 [2]. We readily acknowledge that limitation, but in our case the prejudicial effect is apparent because of the antagonistic atmosphere in which the instruction was given.

For example, the defendant testified that he had repeatedly tried to get plaintiff to select another location for its pole line; that the plaintiff’s agent stated the company did not care about defendants’ wishes because it could take whatever land it wanted. Defendant also related the details of his negotiations with plaintiff, and told the jury that the plaintiff’s original offer was only $35 per pole on tillable land and $15 per pole on untillable land. In the jury’s presence, pungent statements were made about the “domineering attitude” of the power company, that the plaintiff “can do anything they want to” on the right-of-way, and that the defendants will have to have the easement across their farm “from now on until the end of time.” Defendant improperly attempted to use a mortality table to show his life expectancy. The defendant spoke of the danger of electrocution in case the power line should break, told of cows breaking out through a fence plaintiff had ruptured with heavy equipment, and made references to, and introduced photographs pinpointing, damage to the land by the plaintiff after the time of taking. This, even though the plaintiff was separately liable to defendants for that kind of damage by an independent action, not in the present condemnation case. These same points were stressed in defendants’ opening statement and their closing argument.

The issue for the jury was the difference in the reasonable market value of the farm before and after the taking. But, with all the above extraneous, argumentative matters freshly before them, the jury was instructed that the plaintiff was taking the defendants’ land without their consent and against their will. By this the court, in effect, authorized the jury to consider the inflammatory, inadmissible evidence and comments. On the authority of cases of State v. Goodson, supra, and State ex rel. State Highway Commission v. Huddleston, Mo.App., 52 S.W.2d 33 [1], we hold that under these circumstances the instruction was prejudicially erroneous.

In short, we hold that the trial court correctly granted a new trial because of the admission of statements concerning the airstrip, and also because of giving defendants’ verdict-directing instruction.

The plaintiff further challenges the qualifications of defendants’ witnesses who were permitted to give opinions as to the value of defendants’ land. We will not rule that point, but will direct counsel’s attention to the fundamental qualifications of knowledge of the property and of sale prices of comparable properties in the vicinity. A witness so qualified may give separate opinions as to the reasonable market value before the taking and the reasonable market value after the taking. See State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Mo.App., 381 S.W.2d 20 [1, 2, 4, 5]; and Taney County v. Addington, Mo., 304 S.W.2d 842 [4].

The order granting a new trial should be affirmed and the cause remanded.

PER CURIAM.

The foregoing Opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the order granting a new trial is affirmed and the cause is remanded.

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


author: TOWNSEND, Commissioner. PER CURIAM.

text:
    Verma YOUNG, Plaintiff-Respondent, v. Gerald DUERINGER, a minor, Harold G. Dueringer, Guardian Ad Litem, Defendant-Appellant.
    No. 32072.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.

      J. Richard Roberts, Dearing, Richeson, Weier and Roberts, Hillsboro, for defendant-appellant.
    George G. White, Richard E. Baker, Douglas H. Jones, St. Louis, for plaintiff-respondent.
   TOWNSEND, Commissioner.

Appeal from a judgment upon a verdict in favor of plaintiff for personal injuries suffered in an automobile collision.

The collision occurred on a bridge on Highway 21-A, near Victoria in Jefferson County. An inclined approach, at each end, eighty-two and one-half feet long, leads to the level surface of the bridge, which is one hundred and thirty-two feet long. The black-top surface of the bridge and of each approach is twelve feet and eight inches in width. Plaintiff, riding in a car driven by her husband and jointly owned by them, approached the bridge from the west. Defendant, operating the other car involved, approached from the east. The testimony on each side was in many respects flatly contradictory of that on the other. There were irreconcilable differences of statement as to the speed of each car, which one reached the surface of the bridge first, and which entered first upon the inclined approach. The impact of the vehicles was in the center of the bridge, closer to its west end than to the east. Both parties have referred to the bridge as a one-way bridge, although there is some testimony that two cars could pass on the bridge if they were travelling slowly.

In the course of the trial the highway patrolman who investigated the accident was asked his opinion as to the locale of impact; he answered without objection from the defendant. Thereafter, under questioning by plaintiff, he testified without objection concerning the direction of travel of each car and even as to what each driver was doing at the moment of impact. This latter information was apparently derived from his report of the accident, although he did not arrive at the scene until thirty-five minutes after the collision. Upon cross-examination defence counsel asked the patrolman’s opinion as to the speed of the vehicle driven by plaintiff’s husband. Plaintiff’s objection to the question was sustained. Defendant cites this action of the trial court as prejudicial error and asserts his right to the admission of the requested testimony under the doctrine of curative admissibility. Defendant’s contention seems to amount to this: Since I didn’t object to the opinion testimony which you sought, you cannot object to the opinion testimony from the same witness which I desire to elicit, and so takes on the aspect of a tactical game. Upon defendant’s offer of proof, the trial court pointed out that he had looked to defendant for an objection to plaintiff’s questions and would have sustained such objection if it had been made.

In a similar situation this Court has said:

“An objection to the admission of evidence is waived where the same or similar evidence has been adduced by the party objecting.”
* * *
“The evidence which appellant sought to introduce was of the same hearsay character as that offered by respondent. Neither party made any attempt to qualify the records as evidence admissible under section 490.680 RSMo 1949, V.A.M. S., and since respondent was the first to resort to hearsay in support of his cause, he is, under the circumstances, in no position to object to appellant meeting it with evidence of like kind. The doctrine of curative admissibility is applicable.”
* * *
“While ordinarily the use of curative evidence of the character offered by appellant herein and excluded below rests within the sound discretion of the trial court, we see nothing in the record which justifies the exercise of that discretion against the admission of the evidence offered. On the contrary, it is our judgment that the facts show an abuse of discretion- which has resulted in manifest injustice to the appellant.” Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859, 865, 867.

Defendant’s citation of precedent showed the application of the doctrine of curative admissibility for the purpose of sustaining a trial court’s admission of testimony which but for the asserted doctrine would otherwise have been inadmissible. Sigman v. Kopp, Mo., 378 S.W.2d 544. That is not the situation here.

We review the matter in the light both of Dorn v. St. Louis Public Service Company, supra, and Sigman v. Kopp, supra. In Sigman v. Kopp, at the solicitation of the plaintiff, a highway patrolman testified without objection to what a now unavailable participant in a three-car collision had told him about the accident. Upon cross-examination by one of the defendants, the patrolman was asked what another of the participants in the collision, since deceased, had told him about the accident. Plaintiff objected because of inability to cross-examine; the objection was overruled and the trooper testified. Referring to the doctrine of curative admissibility, the Supreme Court held that there was no error, saying “Plaintiff is in no position to complain that counsel for Kopp completed the picture by drawing from the witness the statement of Schramm, the driver of the third vehicle. It was evidence of the same caliber as that originally brought into the case by plaintiff. * * * Having opened the door, appellant is in no position to complain that one of the respondents followed her lead.” At 547 of 378 S.W.2d. In the instant case, the testimony proferred by defendant was of the same general caliber as that solicited from the patrolman by plaintiff, particularly those portions relating to “going straight through”, “stopped”, “slowing or stopping and skidding”,, all derived from the patrolman’s report. While we do not have a feeling of complete assurance as to the limits of the doctrine of curative admissibility, we do feel constrained here by the rationale employed by the Supreme Court in Sigman v. Kopp, supra. Hence we find that there was prejudicial error in the action of the trial court in excluding the testimony.

Defendant charges further error in the admission of evidence of an aggravation of plaintiffs arthritis, since the petition made no allegation relating thereto. The first mention of arthritis occurred in the course of testimony by plaintiff’s medical witness when he was giving his interpretation of what one of the X-rays of plaintiff’s back revealed. He stated: * * * there’s evidence of degenerative arthritis of the front margins [of certain vertebrae] * Interpreting another X-ray, he said that it “again shows a hypertrophic arthritis in C-4, S and 6.” And as to a third, he testified that it showed “the same sharpness of the anterior edge of the vertebrae representing degenerative arthritis.” When asked the significance of his findings, he stated that “the ostearthritis would represent arthritis just as I said, it might or might not be trauma.” Up to this point the witness’ testimony, insofar as arthritis was concerned, involved only explanation of what the X-ray pictures disclosed of plaintiff’s physical structure.

Witness was then asked: “Doctor, has arthritic changes in cervical vertebrae and having no pain or disability from it, if they are in an accident and have pain in that area, is this a common or frequent oc-curance [sic] from trauma?” Defendant’s objection to the question was overruled; without waiting for an answer, counsel put to the witness the further question: “What’s the relationship between a dormant arthritic condition, and one which is painful, in a rather short explanation?” Answer: “The degenerative arthritis has its onset so insidiously that there’s never a pain in it until an intervening accident causes pain and sets it up into activity.” Upon cross-examination, the following questions and answers were had:

“Q. Now doctor, you’ve indicated that there was degenerative arthritis. You’re not saying the accident on July 4th, 1961, caused that, are you?
A. Certainly not. At that time, the x-rays showed that it was present on 7/26/63.
Q. That’s right. You’re not saying the accident in July 1961, caused that?
A. No, sir.”

Immediately thereafter on redirect examination counsel asked: “Are you saying the accident of July the 4th, 1961, aggravated this condition ?” to which the answer was “Yes.”

Plaintiff counters defendant’s objection by asserting that objection must be raised as soon as grounds therefor become apparent; he says that defendant cannot be heard to complain because he did not conform to that requirement and makes reference to that part of the transcript where the witness first mentioned arthritis. The brief review of the witness’ testimony, first set out above, shows that up to a certain stage it involved only an explanation — an interpretation — of what the X-rays revealed without any attempt at that point to link the arthritic condition to the accident. As soon as the questioning of the witness disclosed a purpose to relate that condition to plaintiff’s injuries, defendant objected and was overruled. Until then there was no occasion to object to the witness’ reading of any portion of the X-ray. The objection was timely made.

Plaintiff says that the question to which objection was made was not answered and hence there could be no error. We believe that the question was successfully repeated and an answer elicited. The witness knew full well that the second question was intended to carry the import of the first and so answered in terms of the effect of an accident.

Next, plaintiff maintains that at no time thereafter did the witness link arthritis to the accident by the proper means of the hypothetical question; she says that the expert medical witness could only link arthritis to the accident by means of the hypothetical question. Whatever may have been the “proper” means, the plaintiff’s interrogation of the doctor showed how it could be done. There was thus presented for the jury’s consideration the matter of the aggravation of plaintiff’s arthritis, a subject not encompassed by the pleadings.

In view of the necessity of remand, other assignments of error need not be here considered.

Judgment reversed and cause remanded.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is reversed and cause remanded.

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


author: BRADY, Commissioner.

text:
    Woodrow SELSOR and Lucille Selsor, Plaintiffs-Appellants, v. Richard L. SHELBY and Marian A. Shelby, Defendants-Respondents.
    No. 32234.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.

      Weber & Cytron, House Springs, for plaintiffs-appellants.
    Earl R. Blackwell, Hillsboro, Milton F. Napier, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

The appellants filed suit to enjoin the respondents from continuing an alleged violation of restrictions governing the use of certain lots in a subdivision. Respondents entered a general denial and also pleaded laches, waiver, and estoppel. The trial court denied the relief sought and this appeal followed. We will hereafter refer to the parties by their designation ⅜ the trial court.

Under the rules of review governing actions of this nature this court’s duty is to hear the case de novo, and, giving due deference to the trial court’s findings, we are to reach our own conclusions as to the facts. Sec. 510.310, subd. 4, RSMo 1959, V.A.M.S., and cases cited at note 89; see also § 526.010, RSMo 1959, V.A.M.S., and cases cited at note 10. Stated with obedience to these rules the facts of this case pertinent to the issue which we find determinative follow.

The defendants have been and are operating a nursery business on lots 4, 5, 13, and 14 of the Hillcrest Subdivision (hereinafter referred to as the subdivision) in Jefferson County, Missouri. Lot 4 abuts lot 13 at the rear line and lot 5 does the same to lot 14. There are 122 lots in the subdivision. The plaintiffs own lot 6, the south line of which abuts lot 5 at the latter’s north line. The restrictions on the use of these lots include one which provides: “Said lots shall be used for residence purposes only; and no business of any nature shall be permitted, maintained or conducted thereon.”

. The defendants originally owned lots 4, 5, and 13 and had operated a landscape business on this property since 1953. In 1954 they obtained a loan and began the nursery business. In that year they had row after row of shrubs on the property. Early in the development of the business it was a part time operation but it grew with the years both in the investment involved and in the amount of nursery stock carried on the defendant’s premises. After 1961 Mr. Shelby devoted full time to it. At the date of trial the defendents had approximately $20,000.00 inventory of nursery stock on their premises. The plaintiffs bought their property in the subdivision some thee years after the defendants and at the date of trial had been there eight years. Their home was located on lot 6 but they originally owned lot 14 as well. In August of 1960, the plaintiffs came to the defendants and asked the latter whether they were interested in buying lot 14 in order to expand their nursery operation. Plaintiffs explained they would rather have the nursery on the property than a house. The warranty deed to lot 14 given by the plaintiffs recites that the lot is “subject to the restrictions” on file in the office of the recorder of deeds. At some undetermined time between this sale and the commencement of this action Mrs. Selsor purchased some trees which the defendants had exhibited on lot 14 after its purchase from the plaintiffs. Plaintiffs filed their action in April of 1964.

There was other evidence going to the issue of whether the restrictions placed upon the use of these lots were to be deemed to have been waived, relinquished, or abandoned. This evidence concerned itself with the operation of other businesses upon lots in the subdivision and the violation of certain other restrictions such as those prohibiting open septic tanks, certain types of fences, and above the ground storage tanks. As stated earlier herein we do not rule this case upon any of those issues and the facts relating thereto need not be set out herein.

An injunctive proceeding is a proceeding in equity, Mitchell v. Independent Stave Company, U.S.D.C., Mo., 159 F.Supp. 829. Laches is an equitable doctrine which has been defined as the neglect, for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what should have been done. Delay alone is insufficient to establish laches. It must have been delay resulting in a disadvantage to the other party. See Keiser v. Wiedmer, Mo.App., 283 S.W.2d 914, l.c. 917; 30A C.J.S. Equity § 112. There is no fixed time within which a person must act or be barred by laches. The length of time involved depends upon the circumstances of each particular case. Keiser v. Wiedmer, supra. The issue to be considered is whether the delay was reasonable under the circumstances. Palfrey v. Killian, 224 Mo.App. 325, 27 S.W.2d 462, 1.c. 464-465. If it was then laches is not a good defense. It is well recognized that laches may bar relief from the violation of a restriction. 26 C. J.S. Deeds, § 171 d., p. 1182.

It seems clear all the elements for the application of the doctrine of laches are here present. The evidence is that the defendants were operating their business on lots 4, 5, and 13 when the plaintiffs bought their property in the subdivision and continued to operate their nursery business on those lots for some eight years before the plaintiffs took any action. The very nature of the business and the location of plaintiffs’ home is such that in spite of their denial, plaintiffs must have known of the operation of the business on these lots. With respect to the operation of defendants’ business on lot 14 there can be no doubt of the plaintiffs’ knowledge. The evidence is they encouraged the defendants to buy the lot and use it for that purpose and also purchased a tree from defendants’ nursery stock planted on that lot. These factors greatly reduce the time during which the plaintiffs should have acted. During the eight years the plaintiffs delayed asserting their rights under the restrictions as to the operation of defendants’ business on lots 4, 5, and 13, and the over three and one-half years they delayed as to the operation of that business on lot 14, the defendants’ business was steadily increased in size requiring a greater investment in inventory and in the time defendants devoted to the business. Moreover, after the transfer of lot 14, Mr. Shelby quit his other job and devoted full time to the nursery business and the defendants increased their inventory. -These facts clearly illustrate that plaintiffs’ delay in asserting their rights has worked to defendants’ disadvantage. Plaintiffs’ unexplained delay under these circumstances was unreasonable and constitutes laches.

We are not to be understood as holding that the restrictions in the warranty deed conveying lot 14 to the defendants are in any way invalidated by the plaintiffs’ conduct. Neither the restrictions contained in that deed nor those having reference to any other lot are under attack in this proceeding. The validity of these restrictions is not herein ruled and neither is there any question in this case as to whether any other party in the subdivision might enforce the restrictions which govern all the lots in the subdivision. We do hold that with respect to these lots plaintiffs, being barred by laches, cannot do so as they are not proper subjects for the solicitude of a court of equity.

From what has been said it is apparent that the trial court properly found for the defendants. However, when it did so it based its judgment upon the grounds of estoppel. We have concluded the plaintiffs are barred from the relief herein sought due to laches and therefore do not consider the other defenses, including es-toppel, raised by the defendants. In equity matters we are authorized to direct the entry of such judgment as should have been rendered. It follows that the judgment should be set aside and the cause remanded to the trial court with directions to amend its judgment. See Rosemann et ux. v. Adams et ux. and Village of Bel-Ridge, 398 S.W.2d 855, Supreme Court opinion handed down January 10, 1966. However, since the trial court’s judgment as to the proper party to prevail is in effect affirmed by this opinion, costs of this appeal are to be taxed against the plaintiffs.

The judgment is therefore set aside and the cause remanded to the trial court with directions to hold the plaintiffs barred by laches and to enter its judgment for the defendants.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment is set aside and the cause remanded to the trial court with directions to hold the plaintiffs barred by laches and to enter its judgment for the defendants.

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


author: ANDERSON, Judge.

text:
    Mildred COURTNEY, Plaintiff-Respondent, v. CITY OF FERGUSON, Defendant-Appellant.
    No. 32043.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.

      Morris, Wuestling & James, John J. Morris, Richard C. Wuestling, III, St. Louis, for defendant-appellant.
    Robert E. Morley, St. Louis, for plaintiff-respondent.
   ANDERSON, Judge.

This is an action for damages for personal injuries alleged by plaintiff to have been suffered by her as a result of a fall caused by a condition of a public street in the City of Ferguson, Missouri, alleged to have been hazardous and dangerous for pedestrians using said street. There was a verdict and judgment for plaintiff in the sum of $6,300.00. Defendant has appealed from the judgment.

The incident which gave rise to this suit occurred on June 1, 1961, in the 600 block of Royal Avenue, between three-thirty and three-forty-five in the afternoon. Plaintiff said the afternoon wa's “hot and sunny.” The record of the United States Department of Commerce Weather Bureau was introduced in evidence showing the temperatures for May 31, 1961, and June 1, 1961. This record disclosed a high temperature on June 1, 1961 of eighty-seven degrees. Plaintiff testified she started walking west in the 600 block of Royal Avenue at Chambers Road. At that time, she observed “pools of tar” in the street. She attempted to avoid them by “walking in and out;” but she came to a particular spot and her feet “got trapped in the tar.” At the time, plaintiff was wearing “pedal pushers” and “rubber thongs” on her feet. The thongs are put on by inserting the big toe through an opening, and when on the big toe, the other toes stick out. As heretofore stated, when plaintiff came to a particular pool of tar, her right and left feet got stuck, the right more than the left. When this occurred, plaintiff lost her balance and fell forward landing on her right elbow, knee and right side. After her fall, Mrs. Edna Blaskow, who was in a driveway near the scene of the ‘ fall came to plaintiff’s assistance. At that time, Mrs. Blaskow noticed that plaintiff had asphalt on the front of her blouse, her shorts, her legs, and the heel of her left hand. Plaintiff had arisen when Mrs. Blaskow got to her and was standing at the edge of the street. At that time, one of plaintiff’s shoes was stuck in the tar in the street. The other shoe was in that area but Mrs. Blaskow did not recall its exact position.

Plaintiff did not recall that she had stepped in any other pool of tar prior to her fall, nor did she remember how large the pool of tar was that she fell into, or how deep it was, but did recall that the tar came up around her toes. Mrs. Blaskow testified the tar was in an area approximately a foot and a half to two feet wide, and three feet long. She stated that the depth of the tar at the point she recovered plaintiff’s thongs was one-half inch. She further testified that the condition of softness of the street existed immediately prior to June 1, 1961, and that she had reported the condition to the City Hall three or four days before plaintiff’s accident; that she stated to the person who answered the phone that the street was getting “soft and tacky,” and requested “that they come out and put sand on it.”

Mrs. Blaskow took plaintiff to her home, and upon arrival there, called the City Hall and reported the incident. Plaintiff was then taken in an ambulance to the office of Dr. Solon Harris. After Dr. Harris examined her, plaintiff was sent to Faith Hospital where she remained two weeks. Since the size of the verdict is not challenged, we will not detail the medical evidence.

Plaintiff’s verdict directing instruction, which is challenged on this appeal, charged the jury that if they found that the street was at the time, in an unsafe and dangerous condition for travel thereon by the public by reason of a melting and a collection of asphalt which formed irregular areas of soft asphalt, which had existed a sufficient length of time before the time of the alleged injury to plaintiff for defendant by the exercise of ordinary care to have discovered and repaired said street before the time of the alleged accident; and if they found that at the time in question, plaintiff was walking over said street using ordinary care for her own safety; and while doing so was caused to fall upon said street and be injured by reason of the unsafe and dangerous condition of said street, then there should be a verdict for plaintiff.

It is defendant’s contention that the above mentioned instruction was erroneous for the reason that it did not require the jury to find that defendant’s failure to act in the premises constituted negligence.

We have carefully considered the point urged and the authorities cited by defendant in support thereof and have reached the conclusion there is no merit in the contention. In our judgment, the instruction hypothesizes facts which if found by the jury convict defendant of negligence as a matter of law, and for that reason, it was not necessary to submit to the jury the question whether defendant’s failure to act constituted negligence. Our ruling is based upon our decision in Butler v. City of University City, Mo.App., 167 S.W.2d 442. In that case, plaintiff sued for personal injuries sustained by her when she fell as a result of stepping in a broken portion of a sidewalk which formed a depression from three-fourths of an inch to an inch and a half. The negligence charged was failure to repair same when defendant knew or by the exercise of reasonable care should have known of such defect and its dangerous condition. There was a verdict and judgment for plaintiff. On defendant’s appeal, one of the points urged was alleged error in plaintiff’s verdict directing instruction in that it failed to require a finding that defendant’s failure to repair was negligence. In rejecting this contention, we said:

“Continuing its attack on this instruction, appellant says that it is erroneous because it did not require the jury to find that the defendant negligently failed to repair the sidewalk, or that its failure, if any, to repair the sidwalk, was a failure to exercise ordinary care.
“The instruction, before directing a verdict for plaintiff, did require the jury to find that the sidewalk was by reason of the hole or crack therein not reasonably safe for use by the plaintiff and the traveling public; that defendant knew or by the exercise of ordinary care should have known of the existence of said hole or crack in said sidewalk; that said hole or crack rendered the sidewalk unsafe for reasonable use by the traveling public; that defendant failed to repair the same; and that the failure to repair was the proximate cause of plaintiffs injuries.
“The facts hypothesized in the instruction make out a case of actionable negligence on the part of the defendant as a matter of law. Therefore, it was not necessary to submit to the jury the question of whether or not such facts constituted negligence; plaintiff was entitled to have a verdict directed in her favor upon a finding of such facts. State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Bagby v. Culberson, Mo.App., 273 S.W. 209; Luckel v. Century Building Co., 177 Mo. 608, 76 S.W. 1035; State ex rel. City of St. Joseph v. Ellison et al., Mo.Sup., 223 S.W. 671.”

The instruction under review contains all of the elements required in such cases by MAI 22.04 as adopted by our Supreme Court. That instruction is as follows:

“Your verdict must be for plaintiff if you believe:
“First, there was a defect [crack] [hole] in the sidewalk and as a result the sidewalk was not reasonably safe for the public, and
“Second, defendant knew or by using ordinary care should have known of the existence of this condition, and
“Third, defendant failed to use ordinary care to remedy it, and
“Fourth, as a direct result of such failure plaintiff was injured.”

The only difference between MAI 22.04 and the instruction under review is that the former requires a finding that the sidewalk, “was not reasonably safe for the public,” while the instant case requires a finding that the street “was in an unsafe and dangerous condition for travel thereon by the public.” The instruction in Butler v. City of University City, supra, used the phrase “not reasonably safe for use by the plaintiff and the traveling public.” We see no difference in the meaning of the three phrases. If a sidewalk or roadway is unsafe and dangerous for travel thereon by the public, it certainly is “not reasonably safe for the public,” or for use by a plaintiff and the traveling public. To draw a distinction between them would be a mere play on words. We believe there is no merit to defendant’s contention that the instruction under review was erroneous as claimed.

The next point urged is that the instruction is erroneous because it did not require a finding that the alleged negligent acts or omissions of defendant were the proximate cause of plaintiff’s alleged injuries. In support of this contention, it is urged that there was evidence from which a jury could find that plaintiff’s injuries were not caused by the accident but that her injuries preceded her fall and were not caused by it. However, there was evidence from which the jury could reasonably find that plaintiff did suffer injury as a result of a fall, which would make a jury question of the issue of injury and causation. The instruction did require the jury to find that plaintiff “was caused to fall upon said street and to be injured by reason of the unsafe and dangerous condition of the street * * *.” Instruction No. 12, the measure of damage instruction, charged the jury that if they found in favor of plaintiff from the evidence and other instructions it was the duty of the jury to award plaintiff “such damages * * * as will fairly and reasonably compensate the plaintiff for her bodily injuries, if any, so sustained.” It thus appears that the jury was instructed to find that plaintiff did suffer injury as a result of the fall, and that the jury should award damages for the injuries so sustained. No complaint is made of the failure of the court to use the word “proximate.” On the contrary, it appears to be appellant’s contention that under the instruction, the jury was authorized to allow damages for injuries or a condition not caused by the fall. Considering the instructions together we do not believe the jury could have been misled in this respect. If defendant was fearful of such a result, it could have offered an instruction more clearly limiting the damages to those injuries or condition resulting from the fall. It did not do so. We find no merit to the contention now urged by appellant.

Defendant’s final complaint is directed against Instruction No. 8, given at plaintiff’s request. This instruction dealt with the issue of contributory negligence. In the first part of this instruction, defendant’s contention, with respect to this issue, was stated, to wit, failure of plaintiff to use her eyesight and other senses, when by the exercise of ordinary care, plaintiff could have known the condition of the street, and have walked around the soft spot therein and have avoided injury. The instruction then proceeds as follows: “the burden is upon the defendant on this issue, and, in order to sustain this defense, to prove by the preponderance or greater weight of the credible testimony, such negligence on the part of the plaintiff; * * The complaint made is that by this instruction the jury was, in resolving the issue, limited to a consideration of the “credible testimony” rather than the “credible evidence.”

The plea of contributory negligence contained in defendant’s answer was as follows : “Further answering, defendant states that the damage and injury sustained by plaintiff, if any, is the direct result of the negligence and carelessness of plaintiff, in that plaintiff failed to exercise reasonable care for her own safety to watch where she was walking at the time of the alleged occurrence, and that such negligence and carelessness directly caused, or contributed to cause the damage and injury, if any, plaintiff sustained.”

Defendant’s Instruction No. 7 submitted the issue in the following language: “ * and if you further find that plaintiff knew, or in the exercise of ordinary care, could have known that said soft area, if any, rendered said street dangerous and unsafe for use by one in the exercise of ordinary care for her own safety, in time to have stepped over or around same in safety by the exercise of ordinary care, but failed to do so, and if you further find that plaintiff was thereby negligent, and if you further find that such negligence, if any, directly caused or directly contributed to cause her fall and injury, if any, if so, then your verdict must be for the defendant.”

The instructions all referred to plaintiff’s actions in looking, walking, and moving over said street, and it appears from the transcript that the only source from which any evidence with reference to these matters was the testimony of plaintiff and Mrs. Edna Blaskow. The documentary evidence and photographs offered could not aid the jury in any way in determining the issue of contributory negligence. The photographs did not reflect the condition of the street on the day of the accident. The record does not show when these photographs were taken; but it does appear they were offered merely to show the physical layout of the street. Furthermore, there was testimony that the street had been re-graveled at the time the photographs were taken. It is difficult to believe that these photographs would throw any light on plaintiff’s ability to see the pool of tar or the manner in which she proceeded down the street the day she fell. The same is true of the other exhibits which defendant claims was withdrawn from the jury’s consideration. These are listed in appellant’s brief as, the records of the hospital and weather bureau, a pair of rubber thongs, a bag of torpedo gravel of the kind used to cover the street after the accident, and a hose nozzle of the type to spray asphalt on the street. It is our opinion that appellant’s complaint cannot be sustained, since there was no error shown which could have materially affected the verdict.

The judgment appealed from is affirmed.

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


author: WOLFE, Presiding Judge.

text:
    Marjorie O’NEILL, Plaintiff-Respondent, v. Carolyn Mae BOEVINGLOH, Defendant-Appellant.
    No. 32005.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.
    Ralph C. Kleinschmidt, Evans & Dixon, D. Clinton Almond, St. Louis, for appellant.
    John J. Shanahan, Crowe, Schneider, Shanahan & Lebowitz, Francis X. Cleary, St. Louis, for respondent.
   WOLFE, Presiding Judge.

This is an aetion for damages arising out of personal injuries suffered by the plaintiff when the automobile which she was driving was struck by an automobile driven by the defendant. The defendant counterclaimed for damages arising out of personal injuries that she sustained. The trial resulted in a verdict' for the defendant on the plaintiff’s petition, and for the plaintiff on the defendant’s counterclaim. Only the plaintiff filed a motion for a new trial. The trial court sustained the plaintiff’s motion, and the defendant appealed.

The occurrence out of which the action arose took place on Page Boulevard in St. Louis County. There is a shopping center on the south side of Page Boulevard known as The Town and Country Mall. The entrance to the shopping center is on Page Boulevard about a block east of Woodson Road. Directly opposite from the shopping center entrance and intersecting Page Boulevard from the north is Hurstgreen Avenue where the plaintiff lived. She was going home from the shopping center and to do so she drove her car up the entrance driveway to Page Boulevard. She intended to go directly across Page and into Hurstgreen Avenue. Where the shopping center driveway enters Page there are two lanes on Page for eastbound traffic. After the plaintiff’s car had crossed the first lane and entered the second, it was struck in the side by the defendant’s car which was traveling eastwardly on Page Boulevard.

We limit our statement of facts to those set out above as there is no contention that the plaintiff failed to make a submissible ease, nor is there any dispute about the defendant’s case being properly submissible to the jury.

The plaintiff submitted her case on the humanitarian rule. The verdict directing instruction for the plaintiff required a finding that the defendant could have stopped or slackened the speed of her automobile, after plaintiff’s discoverable peril, in time to have avoided'the collision. The instruction contains the findings required in such instructions. The defendant submitted her counterclaim on the plaintiff’s negligent failure to keep a lookout laterally to the left for the approaching eastbound vehicle of the defendant.

As stated, the jury found against both the plaintiff on her petition and the defendant on her' counterclaim. Only the plaintiff filed a motion for a new trial and the sole charge made as a basis for her motion was that the court erred in giving the verdict directing instruction on the defendant’s counterclaim. That instruction offered by the defendant and given by the court is as follows:

“INSTRUCTION NO. 7 The Court instructs the jury that under the law of the State of Missouri the driver of an automobile on public streets and highways is required at all times to exercise the highest degree of care in keeping and maintaining an adequate lookout ahead and laterally for the approach of other vehicles.
“Therefore, if you find and believe from the evidence that the plaintiff, Marjorie O’Neill, operated her automobile northwardly onto and across Page Boulevard from the private exit road of Town and Mall Shopping Center, and that in so doing she failed to keep and maintain an adequate lookout laterally to her left for the approaching eastbound vehicle of defendant and that in so failing to keep and maintain an adequate lookout to her left the plaintiff failed to exercise the highest degree of care and was negligent, and if you further find that such negligence on plaintiff’s part directly caused the collision mentioned in evidence and defendant’s injuries and damages, if any, and if you further find that the defendant, Carolyn Mae Boevingloh, at all times exercised the highest degree of care’ in the operation of her automobile, then your verdict shall be for defendant Carolyn Boevingloh on her counterclaim against the plaintiff.”

There was also given at the request of the defendant- an instruction designated as Number 1 which stated:

“The Court instructs the jury that the term ‘negligence,’ as used in these instructions, means a failure to exercise the highest degree of care.
“You are further instructed that the term ‘highest degree of care,’ as used in these instructions, means such care as a very careful and prudent person would use under the same or similar circumstances as those shown to you in the evidence.”

The plaintiff contended in her motion for a new trial that the court erred in giving the quoted instruction on the counterclaim for several reasons. The court sustained the motion on the grounds stated in 1(a), which is as follows :

“That the first paragraph of said instruction constitutes an abstract declaration of law and when read with Instruction No. 1 offered by defendant, authorizes negligence on the part of plaintiff to be considered as a defense to plaintiff’s submission of humanitarian negligence.”

The appellant asserts that the court erred in granting the new trial and that the instruction was not prejudicially erroneous. It is contended that although the first paragraph of the instruction is an abstract statement of law it is followed by sufficiently hypothesized facts which the jury was required to find. We are cited to Christman v. Reichholdt, Mo.App., 150 S.W.2d 527, 1. c. 532, wherein we state:

“It is, of course, true that it is improper to give an instruction announcing a rule of law, however correct it may be, unless it is connected with the issues involved. The basis of such rule is that an instruction of that character broadens the issues and distracts the minds of the jury from the real question submitted to them for determination and thereby misleads them. But it is also well-established law in this state that an abstract statement of law in an instruction will not form the basis for a reversal of a judgment, when it is accompanied with a further call for a finding by the jury of all the facts required by law to justify a verdict.”

In that case, however, we were dealing with a simple submission of the defendant negligently bringing his automobile to a sudden stop on the traveled portion of the highway. And as we stated, the abstract statement of law could not have been prejudicial when followed by the facts that the jury was required to find.

However, there arises a complexity in cases where there is a submission of humanitarian negligence by one of the parties and a submission of primary negligence by the other. The abstract law of primary negligence relates to acts or omissions that brought about a perilous situation which resulted in the accident. Humanitarian negligence relates solely to acts or omissions, of the party sought to be charged, that occurred after the peril arose and eliminates from the consideration of the jury the negligence of the party seeking relief under the humanitarian doctrine.

The question that confronts us is whether or not the instruction given would tend to confuse or mislead the jury. Hall v. Clark, Mo., 298 S.W.2d 344. In determining this the charge to the jury is to be considered as a whole and the instructions are construed together. 27 Mo.Dig., Trial, <S=>295(1). Part of an instruction should not be evaluated after it is isolated from the context. Banks v. Koogler, Mo., 291 S.W.2d 883. The use of such an abstract statement of law in Carney v. Stuart, Mo., 331 S.W.2d 558, was held erroneous when employed as a part of a sole cause instruction given on behalf of the defendant in a humanitarian case. It was held to be a confusing element which made the instruction misleading. Again in Endermuehle v. Smith, Mo., 372 S.W.2d 464, it was held that an abstract instruction on primary negligence should not have been given where, as here, the defendant submitted a counterclaim on primary negligence in a case where the plaintiff sought recovery under the humanitarian doctrine. It should be noted that in the case last cited above, the instruction was not a part of the defendant’s verdict directing instruction which followed. See also Anderson v. Prugh, 364 Mo. 557, 264 S.W.2d 358.

The ultimate test whether or not the abstraction used is prejudicially erroneous, comes down to the effect of it when read in the light of the whole charge. The instruction here under consideration concludes with the requirement that the “ * * defendant, Carolyn Mae Boevingloh, at all times exercised the highest degree of care in the operation of her automobile * * There is no mention made of the negligence charged in the humanitarian instruction given. The defendant, relying on Banks v. Koogler, Mo., 291 S.W.2d 883, supra, maintains that the failure to mention humanitarian negligence in her instruction was cured by plaintiff’s verdict directing instruction. In the Banks case the defendant’s submission was on humanitarian negligence. The difference between the situation here and that considered in the Banks case is that in the Banks case the defendant’s instruction on humanitarian negligence stated that the defendant could recover even if the jury found that the defendant was negligent in any of the respects submitted in the plaintiff’s instruction on primary negligence. While in the case before us the plaintiff’s verdict directing instruction contained no such phrase.

In Wilson v. Tonsing, Mo., 375 S.W.2d 140, 1. c. 143, the Missouri Supreme Court had the same thing under consideration and they made the following statement:

“In submitting the defendant’s counterclaim instruction 4 does not mention or refer in any manner to instruction 1 and the humanitarian hypothesis upon which recovery is permitted plaintiff. Not only is instruction 1 not mentioned, instruction 4 does not negative its applicability, ‘and (defendant) was not guilty of any negligence as submitted in other instructions.’ Dixon v. Edelen, (Mo.) 300 S.W.2d 469, 474. It may be that the mere failure to mention the plaintiff’s main instruction and its hypothesis of the humanitarian doctrine is not the sole test of the correctness and validity of a defendant’s counterclaim instruction, but that was not the problem in Banks v. Koogler, (Mo.) 291 S.W.2d 883. In that case the humanitarian instruction covered the subject, there the humanitarian instruction told the jury that recovery could be had upon its hypothesis ‘even if it found that defendant was negligent in any of the respects submitted in plaintiff’s instructions on primary negligence.’ Therefore, reading the instructions together, the jury in that case was informed that it was not authorized to consider contributory negligence as a defense to the humanitarian submission and there was then no conflict or misdirection in the instructions. Slaughter v. Myers, (Mo.) 335 S.W.2d 50, 55. But that is not the situation with respect to these instructions, the parties and theories were transposed or reversed, otherwise this case is governed by Mott v. Chicago, R. I. & P. Ry. Co., (Mo.App.) 79 S.W.2d 1057, 1062, and Wabash Railroad Co. v. Dannen Mills, Inc., 365 Mo. 827, 830. 288 S.W.2d 926, 927.”

Taking cognizance of that case and those cited therein, § 17.14, M.A.I. carries the following cautionary note on page 135:

“Caution. Where one party submits on humanitarian negligence and the other submits on primary negligence, the primary negligence verdict directing instruction should include the following tail:
“Unless you believe (here insert name of party charged with humanitarian negligence') was negligent as submitted in (here insert number of instruction submitting humanitarian negligence).”

And in Staat v St. Louis Public Service Company, 397 S.W.2d 675, 1. c. 680, the Supreme Court again stated “ * * * an instruction by defendant on its counterclaim charging primary negligence against plaintiff is erroneous if it ignores the plaintiff’s verdict-directing humanitarian submission. * * *»

We conclude that the errors noted were prejudicial to the plaintiff and the court properly sustained motion for a new trial. The judgment is affirmed.

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

ANDERSON, J., not participating.


text:
    SLOAN’S MOVING AND STORAGE COMPANY et al., Plaintiffs-Appellants, v. Frank KRIZ et al., Defendants-Respondents (two cases). Lawrence A. DAY, Doing Business as Day Moving & Express Company, Plaintiff-Appellant, v. Conway BRISCOE et al., Defendants-Respondents.
    Nos. 31937, 31938, 32117.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.

      David E. Horn, Don B. Faerber, St. Louis, for plaintiffs-appellants Sloan’s Moving & Storage Co. and others.
    Thomas F. McGuire, City Counselor, John J. Fitzgibbon, Associate City Counselor, Thomas J. Neenan, St. Louis, for defendants-respondents Kriz and others.
    David E. Horn, St. Louis, for plaintiff-appellant Day.
    Thomas F. McGuire, City Counselor, John J. Fitzgibbon, Associate City Counselor, Deeba, DeStefano, Sauter & Herd, Charles M. Deeba, St. Louis, for defendants-respondents Briscoe and others.
   ANDERSON, Judge.

These are appeals from three judgments of the Circuit Court affirming orders of the Board of Public Service of the City of St. Louis granting to each respondent a certificate of convenience and necessity to operate one additional truck as a public mover. There were three separate cases and three appeals. Separate briefs were filed in each case, but the cases were consolidated for hearing in this court. Cause # 31,937 involves the certificate issued to Willie Dennis. Cause #32,117 involves the certificate issued to Elmer Rosemann, Sr., and Joe Werner d/b/a Rosemann & Werner. Cause # 31,938 involves the certificate issued to Joe Sirkin. The record in each case consists of the testimony before the Board of Public Service, and numerous exhibits and documents considered by the board. Respondents in each case have filed motions to dismiss on the ground that appellants’ brief in each case fails to comply with Civil Rule 83.05, V.A.M.R.

In each case the appellants in an assignment of error urge that the record before the Board of Public Service failed wholly to establish the public convenience and necessity for such service, and the public demands requiring such service; and did not show the effect the proposed moving service would have upon other moving services being rendered. It thus appears that to decide the issues on these appeals, it would be necessary for this Court to examine the evidence adduced together with the exhibits and document contained in the records.

The statement of facts in each case contains merely a short chronological history of the proceedings, without a narration of the facts developed by the testimony or facts shown by the exhibits or documents which are a part of the record in each case. This evidence related to the issues determined below and under question in this Court. The only reference to this evidence was the statement in each brief that, “[t]he transcription of the testimony and the other papers sent to the Circuit Court by the Board of Public Service have been brought up on this appeal.” There was therefore a clear violation of Civil Rule 83.05(c) V.A.M.R., which calls for a fair and concise statement of the facts relevant to the questions presented for determination. Ambrose v. M.F.A. Co-Operative Ass’n of St. Elizabeth, Mo., 266 S.W.2d 647; Walker Bros., Inc. v. J. K. Seear (U.S.A.) Limited, Mo.App., 364 S.W.2d 51; Glick v. Glick, Mo.App., 360 S.W.2d 333; Weinbrenner v. McCall, Mo.App., 336 S.W.2d 532; Gorman v. Kauffman, Mo.App., 188 S.W.2d 70.

In causes # 31,937 and # 31,938, there are further violations of said rule in that said statements contain the following argumentative and untrue matter: “ft]here is no evidence in the record of the public necessity and convenience relating to moving service or of the demands of the public requiring proposed additional service or of the effect which the proposed seryice may have on other moving service being rendered.”

There is a further violation of the rule in each case in that the points relied on, under the heading “Points and Authorities” are mere abstract statements of law without any showing how they are related to any action of the Court. The statements in each case contain no page references to the transcript.

In our judgment, the motion to dismiss filed in each case should be sustained. Before reaching this conclusion, we carefully studied the briefs in each case and the transcripts and have determined that the rules should not be suspended in the interest of justice because each case was correctly decided below on the merits.

The motion of Respondents in each case is sustained, and said appeals are dismissed.

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