author: PALMORE, Judge.

text:
    Sherman HALL et al., Appellants, v. E. H. FULLER, Appellee.
    Court of Appeals of Kentucky.
    April 28, 1961.
    Rehearing Denied Jan. 26, 1962.
    Alvin B. Trigg, Lexington, Dwight L. Pendleton, Stanton, for appellants.
    Troy D. Savage, Lexington, for appellee.
   PALMORE, Judge.

In settlement of a dispute between them concerning an oil and gas leasehold Miller and Hall, the lessees, entered into a contract with Fuller, the lessor, whereby they undertook to guarantee him a certain royalty interest. This suit was brought by Fuller against Miller’s devisees and Hall to enforce the contract. The controversy was reduced to two issues, involving construction of the agreement and the question of whether there was adequate consideration to support it. Both were decided by the trial court in Fuller’s favor.

By two instruments executed in 1948 Fuller leased the oil and gas in a 400-acre tract in Powell .County to Hall (who then assigned a partial interest to Miller). In 1949 the J. S. Abbott heirs executed in favor of one Fitch an oil and gas lease covering 140 acres of land which the Abbott heirs claimed lay within the boundary of the 400 acres leased by Fuller to Miller and Hall. In September of 1950 Miller and Hall took an assignment from Fitch and thereupon held under each of the antagonistic leases. They commenced a well on the disputed 140-acre portion of the 400 acres in the latter part of 1950. Fuller, learning of the assignment his lessees had taken from Fitch, regarded this act as a recognition of the adverse claim of the Abbott heirs and a reflection on his title. He threatened to sue, making Miller and Hall parties to the litigation. Hall’s first reaction was to say that he did not want to get into any litigation and stop the oil runs, and later he and Miller entered into a series of negotiations with Fuller in order to settle the dispute.

At this point, in order that the negotiations and the subject matter of the contract may be clearly understood, it is necessary to recite that the title claimed by the Abbott heirs stemmed from a deed made by one V. H. Fuller in 1917, in which the grantor retained an undivided ¾6 interest in the oil rights. V. H. Fuller being also the predecessor in title of E. H. Fuller, it was taken for granted by all concerned throughout the proceedings under discussion that even if the Abbott heirs should prevail in their claim (as they eventually did) E. H. Fuller still would be entitled to ¾6 of the oil produced from the disputed 140 acres.

On July 3, 1951, the parties met in the law office of the late Malcolm Strange at Stanton, Kentucky. Miller and Hall had caused to be prepared, under date of July 2, 1951, a contract conformable to their understanding of the agreement reached in the preceding negotiations. After fully reciting the circumstances it provided as follows:

“1. The first parties agree to pay the said second party a one-sixteenth (½6) of eight-eighths (⅜) of the oil produced from said Fuller Well No. 7 and any and all wells which may be drilled on said disputed property. This one-sixteenth (%e) royalty is in addition to the one-sixteenth (¾6) royalty which said second party is entitled to receive under and by virtue of the aforesaid deed from V. H. Fuller to Abbott. Thus, the said second party will receive a full one-eighth (⅛) of eight-eighths (⅜) of all the oil produced from said lease.
* * * * * *
“3. In the event the controversy between the said Abbotts and the said second party is adjudicated, and the Ab-botts prevail in their claim as to the location of said 140 acres, then, and in that event, second party shall not be entitled to said one-sixteenth (¾6) of the oil on the lease located on said 140 acres as provided in this agreement.”

Upon examining the draft Fuller made certain changes by pencil on its face. He says he did it on the spot and in the presence of the other parties. The other witnesses say he did not make the changes at that time. In any event, the agreement was not signed, and Fuller took the draft home to Lexington for further examination. Between July 4 and July 6 he had it re-typed to conform to the changes he had marked on it, and on the latter date mailed it to Miller. It was then signed by Miller and Hall and an executed copy returned to Fuller on July 18, 1951.

The significant departure from the original draft is in clause 3, which in the signed contract reads as follows:

“3. In the event the controversy between the said Abbotts and the said second party is adjudicated, and the second party prevails in his claim as to the location of said 140 acres and is adjudged the full ⅜ Royalty then, and in that event, second party shall not be entitled to said one-sixteenth (¾6) of the oil on the lease located on said 140 acres as provided in this agreement.” (Italics ours, indicating changes from original draft.)

Thus it may be seen that whereas the draft provided, in effect, for termination of the agreement if the Abbotts should win, the final version provided for termination if Fuller should win. According to Fuller, that was his understanding all along, so that he would wind up with his full ⅛ either way. Hall and the attorneys who participated in the various stages of the transaction testified, on the contrary, that the draft represented the real agreement. Nevertheless, there is no question of fraud or mistake in this case. Miller and Hall had able counsel at their disposal, knew that changes had been made (though Fuller referred to them as “minor” in his transmittal letter of July 6, 1951), and had ample opportunity to inspect the contract before signing it. The Miller-Hall position is that the contract is ambiguous, admitting of parol evidence to explain it, and that it should be construed to mean what it said before it was revised by Fuller. It was on the theory of ambiguity that the trial commissioner received evidence of the events leading up to the final execution of the agreement.

The contract as originally drawn and tendered to Fuller was a reasonable one. That Miller and Hall may not have wished to make the agreement represented by the document they eventually signed is understandable. But the cold fact is that they did sign it, and we do not think it is ambiguous. The trial commissioner found it so on the theory that it was silent on the question of whether Miller and Hall were to continue paying the ¾6 if Fuller should lose his suit with the Abbott heirs. A fractional share in the production of minerals, whether it be so called or not, is a royalty (cf. 37A Words and Phrases pp. 600-608), and it is common knowledge that a royalty interest under a particular lease ordinarily endures for the life of the lease unless the instrument creating it indicates a contrary intention. (Fuller changed the word “royalty” at the first place it appears in paragraph 1 of the draft to read “interest” in the final contract, but that did nothing to change its essential nature.) The preamble of the contract contains no language to indicate an intention to limit its effect to the period of time during which the controversy between Fuller and the Abbott heirs existed. So paragraph 1 is crystal clear and unambiguous insofar as it requires Miller and Hall to pay Fuller a royalty of ¾6 of the oil produced from the 140-acre portion of the lease in question, exclusive of the royalty interest to which he claimed to be entitled through the reservation in the 1917 V. H. Fuller-Abbott deed.

Paragraph 3 does contain a limitation, and the only limitation, on the duration of the royalty interest created by paragraph 1. Again, that limitation is perfectly clear. The interest ends if and when Fuller should prevail, in the form of an adjudication, in his dispute with the Abbott heirs. Since that contingency never occurred, and is forever closed by the fact that the adjudication was in favor of the Abbott heirs, the explicit terms of paragraph 1 remain in full force and effect.

It is conceded that the consideration moving from Fuller was his forbearance to sue. He thought the taking of an assignment from Fitch constituted a transfer of fealty by Miller and Hall, giving rise to a cause of action on his, the landlord’s part. Assuming that he was mistaken in this belief, it is conceded also that his claim was in good faith.

There seem to be three views on the sufficiency of forbearance to sue as a valid consideration in support of a contract. The first is that the claim must be legally enforceable. The second is that it must be doubtful at least. The third is that it need only be in good faith. See 17 C.J.S. Contracts § 104b, p. 461. The second view, that “the suit forborne must not be wholly and certainly groundless or unsustainable at law or in equity,” and that “good faith or an honest belief in its soundness alone is not enough,” is supported in Forsythe v. Rexroat, 1929, 234 Ky. 173, 27 S.W.2d 695, 697; Hardin’s Adm’rs v. Hardin, 1923, 201 Ky. 310, 256 S.W. 417, 38 A.L.R. 756; and Baker v. Vanderpool, 1944, 296 Ky. 663, 178 S.W.2d 189. This also was the rule stated in Sellars v. Jones, 1915, 164 Ky. 458, 175 S.W. 1002, but in Cook v. Cook, Ky.1957, 299 S.W.2d 261, 264, the latest case on the subject in this jurisdiction, this court, while apparently recognizing that a claim may be so clearly groundless that it cannot be in good faith, said: “It is only essential that the claim be asserted in good faith.” This comes so close to the third view enumerated above as to be practically indistinguishable from it. The rule is stated in 12 Am.Jur. 577 (Contracts, § 82) .as follows:

“The relinquishment of an invalid claim is ordinarily insufficient for a promise. Where, however, the claimant has an honest and reasonable belief in the validity of an invalid claim, the relinquishment of such claim is sufficient consideration to support a promise.” (Emphasis added.)

We believe the sound viewpoint to be that good faith is enough unless the claim is so obviously unfounded that the assertion of good faith would affront the intelligence of the ordinary and reasonable layman. In this case it was treated seriously not only by the laymen involved, but several lawyers as well. It was certainly regarded as of more than nuisance value. Asserted in good faith, we conclude that it was sufficient to give substance to the promise of forbearance.

The judgment is affirmed.


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    W. R. VAUGHAN et al., Appellants, v. GENERAL OUTDOOR ADVERTISING CO., Inc., Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    Rehearing Denied Jan. 26, 1962.

      William A. Stephenson, Sidney Hanish, Louisville, for appellants.
    Henry J. Tilford, Charles W. Dobbins, Stuart E. Alexander, Louisville, for ap-pellee.
   WADDILL, Commissioner.

This is an appeal from a judgment granting appellee, General Outdoor Advertising Company, Inc., a permanent mandatory injunction requiring the removal of all outdoor advertising displays and devices which appellants, Southeastern Displays, Inc., and their agents, have caused to be erected upon a certain lot now owned by appellant Rosalie Lockard, the widow of Homer Lock-ard. Appellants ask for reversal of the judgment on grounds hereinafter set forth.

On June 8, 1954, appellee entered into a written lease-agreement with Homer Lock-ard by which appellee obtained the right to erect and maintain billboards upon an easterly portion of the southern boundary of a city lot owned in joint survivorship by Lockard and his wife, Rosalie. The primary term of the lease was five years, with the privilege of yearly renewal thereafter for five years. The lease contained a provision that:

“The lessor [Lockard] represents that he is the owner of the premises above described and has authority to make this lease, and covenants that he will not permit any adjoining premises, owned or controlled by him, to be used for advertising purposes or permit lessee’s [appellee’s] signs to be obstructed.”

After appellee’s billboards had been erected upon the Lockard property, and on June 9, 1958, W. R. Vaughan, acting as the agent of Mary A. Vaughan who was then conducting an advertising business under the name of Southeastern Displays, entered into a lease-agreement with Homer and Rosalie Lockard, whereby Southeastern Displays was granted the privilege of erecting billboards upon a portion of the southern boundary of the Lockard lot which was not included within appellee’s lease. Southeastern Displays subsequently assigned its lease to Southeastern Displays, Inc., a corporation principally operated by Mary Vaughan. Pursuant to this lease, Southeastern Displays, Inc. (hereinafter called Southeastern), erected billboards which were located west of those of appel-lee.

On August 4, 1958, appellee sued Southeastern, the Lockards, and the Vaughans seeking damages and an injunction requiring the removal of the billboards erected upon the Lockard property by Southeastern. The Chancellor entered a judgment granting the injunction, which was made a final and appealable judgment by a recitation as required by CR 54.02, but he reserved for further adjudication appellee’s claim for damages.

Appellants contend that the restrictive covenant in appellee’s lease, which limits the use of the Lockard lot for advertising purposes, is invalid because it is in restraint of trade and tends toward creating a monopoly in the outdoor advertising field. We have held that restrictive covenants in partial restraint of trade are enforceable if they are not unreasonable, i. e., they do not have a tendency to unduly restrict competition and are not inimical to the public interest. Ladd et al. v. Pittsburg Consolidation Coal Co. et al., 309 Ky. 405, 217 S.W.2d 807; Johnson v. Stumbo, 277 Ky. 301, 126 S.W.2d 165; Anderson v. Jett, 89 Ky. 375, 12 S.W. 670, 6 L.R.A. 390. The test of reasonableness ordinarily applied in cases of this character is whether the restraint, considering the situation and circumstances involved, is so extensive as to interfere with the interests of the public. 36 Amjur., Monopolies, etc., Sections 51 and 52. While the purpose of the covenant in question is to prevent competition in trade, yet the restriction as it here applies is so limited as to territory (a city lot) and duration (a maximum period of 10 years) that it is a legitimate restraint of the use of the Lockard lot. Vanover v. Justice, 180 Ky. 632, 203 S.W. 321, L.R.A.1918E, 662. Consequently, the Chancellor correctly found that the restrictive covenant is valid.

Appellants argue that Southeastern’s lease does not violate the restrictive covenant of appellee’s lease because the property leased to Southeastern does not adjoin the property leased to appellee inasmuch as the Lockards had, with appellee’s consent, leased to another company a small portion of their lot lying between that leased by appellee and that subsequently leased by Southeastern. However, the mere circumstance of coexisting leases on different portions of this lot does not alter the fact that each portion adjoins the remainder of it. We are in accord with the view of the Chancellor who held that all parts of the Lockard lot constitute “adjoining premises” within the meaning of that term.

Appellants maintain that the evidence is insufficient to support the Chancellor’s finding that appellee’s agents had not consented to the Lockards’ leasing a portion of their lot to Southeastern. Since the appellee’s agents testified that they had not consented as claimed by appellant, the Chancellor had sufficient evidence upon which to base his finding.

Appellee’s lease contained a provision requiring notice of its renewal be sent to Lockard at a specified address. There was uncontradicted testimony that Lockard asked appellee’s lease manager ■to send his mail to an address different from that designated in the lease. Ap-•pellee’s agent testified to the effect that ■notice of its renewal was timely mailed to the address designated by Lockard, although Lockard testified that he did not receive the notice. Since there was testimony that appellee’s agent had timely mailed a renewal notice in accordance with Lockard’s instructions, we agree with the finding of the Chancellor that appellee had ■sufficiently complied with the renewal re■quirement of its lease.

Appellants argue that appellee was ■not entitled to equitable relief because its agents were guilty of laches in not attempting to stop the erection of Southeastern’s billboards prior to their completion. It was shown that, between June '9, 1958, the date when Southeastern obtained its lease, and July 16, 1958, the date upon which the erection of Southeastern’s billboard was completed, appellee’s lease manager knew that Southeastern was erecting billboards upon the Lockard lot. However, there was testimony to the effect that appellee’s lease manager had advised Lockard that his company would not waive the restrictive provisions of its lease, and that Southeastern’s agents had knowledge ■of it. It appears that appellee instituted this action within two months of its first knowledge that its lease was being violated. Under these circumstances the Chan■cellor correctly decided that appellee’s agents had acted diligently and timely to protect appellee’s rights under the lease. Starck v. Foley, 209 Ky. 332, 272 S.W. 890, 41 A.L.R. 756.

Appellants contend that since Mrs. Lockard did not sign appellee’s lease, she is not bound thereby, and, therefore, the Chancellor erred in granting the injunction. Homer Lockard died during the pendency of this action and his wife is now the sole owner of the lot. The evidence established, and the Chancellor found, that Mrs. Lock-ard participated in the negotiations between her husband and the agents of appel-lee which preceded the signing of the lease. In establishing this fact it was shown that Mrs. Lockard insisted upon the insertion in the lease of the provision requiring all signs that appellee erected upon their lot to be located so as to not obstruct a certain view from their residence. It was also shown that the checks received from appellee in payment of the rent due under its lease were endorsed by her and deposited in a joint bank account which she and her husband maintained. In light of these facts we believe that the Chancellor correctly concluded that Mrs. Lockard’s husband had acted as her agent in leasing their lot, and that her subsequent acceptance of the rent payments constituted a ratification of the lease. Manning v. Owens, 277 Ky. 40, 125 S.W.2d 753; Shelby v. Shelby, 212 Ky. 552, 279 S.W. 942.

Appellants, Southeastern and the Vaughans, contend that since they were not parties to appellee’s lease, the Chancellor erred in granting an injunction against them. This raises the troublesome question of whether a subsequent lessee, with notice of, is bound by a restrictive covenant in a prior lease. For comprehensive discussions relating to this question, see: Cole v. Seamonds, 87 W.Va. 19, 104 S.E. 747; Farm Food Stores, Inc. v. Gianeschi et al., 320 Ill.App. 582, 51 N.E.2d 792; 51 C.J.S. Landlord and Tenant § 238; 32 Am.Jur., Landlord and Tenant, Section 146. While these authorities disclose a lack of unanimity on this subject, we have decided that the question raised should be answered in the affirmative on the principle stated in Farm Food Stores v. Gianeschi, supra [320 Ill.App. 582, 51 N.E.2d 794], “that a party with knowledge of the just rights of another should not be permitted to defeat them.” Since it was properly found that these appellants had notice of appellee’s lease and of the restrictive covenant therein, we conclude that the Chancellor was authorized to issue the injunction. This is so irrespective of whether or not appellee’s claim for damages is sustainable. Greer v. Bornstein, 246 Ky. 286, 54 S.W.2d 927; Starck v. Foley, supra; Hotel, Restaurant and Soda Fountain Employees Local Union No. 181 v. Miller, 272 Ky. 466, 114 S.W.2d 501.

We have concluded that the relief granted herein is sustainable under the record.

Judgment affirmed.


author: MONTGOMERY, Judge.

text:
    Tom McCOWN, Appellant, v. John W. MOORE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1961.
    Rehearing Denied Jan. 26, 1962.
    E. R. Hays, Baird & Hays, Pikeville, for appellant.
    Sanders & Redwine, Pikeville, for appel-lee.
   MONTGOMERY, Judge.

John W. Moore sued Tom McCown to. recover damages for injuries sustained by the overturning of the McCown jeep and trailer. The trial court directed the jury to. find a verdict for Moore, which it did in the sum of $6,493. McCown argues that, he was entitled to a directed verdict because Moore was guilty of contributory-negligence as a matter of law, or in lieu thereof he should have been entitled to have the case submitted to a jury on instructions as to joint enterprise, contributory negligence, and duties and negligence-of appellant.

The appellee has failed to file a. brief in the time allowed; hence, the case is considered on the statement of facts and. issues contained in the appellant’s brief. RCA 1.260(c) (1). The Court also is authorized to reverse the judgment if appellant’s brief reasonably appears to sustain such action. RCA 1.260(c) (1, 2). Shepherd v. Rowe, Ky., 243 S.W.2d 915; Allen v. Murphy, Ky., 255 S.W.2d 23; Calvert Fire Insurance Co. v. Osborne, Ky., 267 S.W.2d 727; Lindsey v. Wilson, Ky., 332 S.W.2d 641; Delong v. Delong, Ky., 33S S.W.2d 895.

Moore sustained injury to a foot when McCown’s jeep and trailer loaded with scrap lumber turned over. The evidence is in conflict as to whether Moore gave the lumber to McCown or McCown was hauling it for Moore. The lumber was loaded-on the trailer by Moore without the assistance of McCown. There was some discussion about the manner in which the lumber was loaded. It was sticking out over the back of the two-wheel trailer and was not well balanced. A short piece of lumber was placed in the front of the trailer to balance the weight before it was hitched to the jeep.

■ The parties are in dispute as to the cause of the overturning, but McCown attributes it to the improper manner in which Moore loaded the trailer. McCown contends that there was no evidence of negligence on his part and that Moore was con-tributorily negligent because he loaded the lumber and knew the danger involved in transporting it over the highway. McCown says that Moore assured him that the trailer was properly loaded and that it would be satisfactory for transportation over the highway, thus assuming the risk.

Under the rule mentioned, the statement of the facts and issues made by Mc-Cown is accepted. On retrial, if the facts shown are substantially the same, the case should be submitted to a jury under instructions covering the duties and negligence of McCown and the contributory negligence of Moore. McCown concedes that Moore had no control over the driving of the jeep, thus eliminating the joint enterprise question. Wright v. Kinslow, Ky., 264 S.W.2d 673.

Judgment reversed and a new trial-awarded in conformity herewith.


author: HOLLINGSWORTH, Judge.

text:
    Jerome J. VENKER, Appellant, v. Charles G. HYLER, Raymond R. Roberts, and The Daily St. Francois County Journal, Inc., a Corporation, Respondents.
    No. 48594.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Donald E. Gillihan, Farmington, for appellant.
    Roberts & Roberts, Farmington, for respondents, Charles G. Hyler and Raymonds R. Roberts.
    Smith & Colson, Farmington, for respondent, The Daily St. Francois Journal, Inc.
   HOLLINGSWORTH, Judge.

In this action for alleged libel, plaintiff sought actual damages in the sum of $250,-000 and punitive damages in the sum of $250,000. Plaintiff conducts a retail drugstore in the City of Desloge. Defendant The Daily St. Francois County Journal,. Inc., with offices in the City of Flat River, publishes a newspaper of general circulation in said county; defendants Raymond R. Roberts and Charles G. Hyler are, respectively, the prosecuting attorney and assistant prosecuting attorney of said county.

Following notice given by defendants to take depositions, plaintiff, acting on advice of counsel, refused to respond to a subpoena duces tecum to appear and give his-deposition and to produce in evidence certain books, records, containers and prescriptions for drugs. The trial court, on motion of defendants, dismissed plaintiff's petition with prejudice. Plaintiff appealed. The amount in dispute vests this court with jurisdiction. Constitution of Missouri, Art. V, § 3, V.A.M.S.; Section 477.040 RSMo 1959, V.A.M.S. (All statutory references herein are to that revision unless otherwise indicated.) A statement of undisputed background facts, as gleaned from the pleadings and colloquy between court and counsel, will be of aid.

On October 24, 1960, defendant newspaper carried a news article headed “Reveal Illegal Drug Sales By Desloge Druggist; Two Wanted Men Surrender.” The article, insofar as here material, recited that through the combined efforts of the St. Francois County sheriff’s department, Prosecuting Attorney’s office, the State Highway Patrol, and the Farmington city police department, plaintiff herein had been arrested and released on bond in a misdemeanor case for illegal sales of “strong drugs”. See Sections 195.220-195.270. The article then attributed to defendant Raymond R. Roberts certain statements as to the manner in which the facts “came into the light” and that plaintiff had readily admitted the illegal sales when questioned.

Five days after that article appeared plaintiff filed this action. Defendants promptly served notice to take depositions beginning on November 9, 1960. That notice, however, did not advise plaintiff of the witnesses to be examined as required by S.Ct. Rule 57.08, V.A.M.R. Nevertheless, a notary public issued a subpoena ad testificandum directed to plaintiff’s counsel and a subpoena ad testificandum and duces tecum to produce the hereinafter specified items in evidence directed to plaintiff. These subpoenas were served by the sheriff on November 5, 1960. On the same day plaintiff filed in the circuit court a document entitled “Motion For Protective Order”, reciting the fact of his arrest for and his being charged with the aforesaid criminal acts and averring that the Constitutions of the United States and this State assured him of the right of a speedy trial; that his attorney’s full time was needed to insure him of that right; that denial of his attorney’s full time would constitute “an oppression for which protectives orders may be granted”; that his attorney believed that the criminal action could be disposed of within about one month and that thereafter his attorney would be available “for work on the [libel] action.” The prayer of the motion was that defendant be prevented from taking depositions until December 9, 1960.

On November 7, 1960, the “motion for protective order” was heard and by the court overruled. On November 10, 1960, defendants filed their motion to strike plaintiff’s petition and to dismiss his action with prejudice, to which they attached a copy of the subpoena duces tecum and a transcript of the proceedings held before the notary on the 9th day of November, 1960, at the hour and place set for the taking of depositions of plaintiff and his counsel. The subpoena duces tecum served upon plaintiff commanded him to bring with him and at said hearing produce in evidence the following:

“1. All perscriptions (sic) for Dex-trine and similar stimulant amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal for the past five years or since you have been in business in Desloge, Missouri.
“2. All invoices and records of provisions from all sources of supply of Dextrine and similar stimulant amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal for the past five years or since you have been in business in Desloge, Missouri;
“3. All books and records of sale of Dextrine and similar stimulant amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal for the past five years or since you have been in business in Desloge, Missouri;
“4. The original container or all containers from which the Dextrine sold L. Marie Coleman on the 20th day of October, 1960, or at any other time was taken or removed;
“5. All perscriptions (sic) for Mrs. Ruth Noor or L. Marie Colman in your possession;
“6. All perscriptions (sic) from and/or containing the name or purported name of Doctor Cresswell of Potosí, Missouri.”

The transcript, as certified by the notary, recited that counsel for plaintiff appeared at the time and place set for taking the depositions and advised the notary and counsel for defendants: that plaintiff refused to appear on advice of his counsel on grounds that the notary had no power to issue a subpoena duces tecum and which, plaintiff’s counsel contended, could be issued only under S.Ct. Rule 57 on order of the circuit court in which the libel action was pending; that the judge of the trial court, in overruling plaintiff’s “motion for protective order” had advised plaintiff’s counsel that defendants had a right to take these depositions after plaintiff had “opened the gate and filed suit”; that plaintiff, therefore, was willing to come before the notary on proper notice and produce any evidence which the trial court in its discretion saw fit for plaintiff to produce as required by S.Ct. Rule 57 and that he would like to have the matter of plaintiff’s appearance heard by the trial court “today, if possible, and [that] upon a ruling by the Circuit Judge the plaintiff [would] in every respect abide by [said] ruling.” The notary’s transcript further recited that plaintiff’s counsel was thereupon advised by counsel for defendants that in view of plaintiff’s failure to appear after having been subpoenaed defendants expected to file their motion to dismiss plaintiff’s case with prejudice regardless of plaintiff’s willingness to bring to any future hearing the items called for in the subpoena duces tecum. (Plaintiff’s counsel also expressed his willingness to testify in response to the subpoena directed to him, but no effort to take his deposition is shown and his failure to testify drops from the case.)

On November 12, 1960, plaintiff filed “Motion To Strike Defendant’s Notice To Take Depositions For Failure To Comply With Supreme Court Rule 57.08 And To Void All Proceedings Had Thereunder.” (That motion was never ruled, but that fact is immaterial.) On November 14, 1960, counsel for the parties appeared before the trial court where the foregoing incidents, pleadings and especially the merits of defendants’ motion to dismiss plaintiff’s action with prejudice were discussed at length. During this discussion, it developed that on the 10th day of November, 1960, plaintiff’s counsel, by telephone, advised defendants’ counsel that following additional research he was willing forthwith to produce plaintiff on that day or the next day as would meet with the convenience of counsel for defendants. The trial court stated that although plaintiff’s counsel had not acted in bad faith, but “I think you’re in trouble, your client is in trouble,” and that the court had in mind the dismissal of “your action for several reasons. Primarily, the failure to recognize the validity of that [ad testi-ficandum portion of the subpoena served upon plaintiff] to testify and I don’t believe I have any other course.” Thereafter, on November 23, 1960, the court entered its order that “plaintiff’s petition be and is hereby dismissed with prejudice, at plaintiff’s costs.”

Plaintiff insists that the portion of the subpoena duces tecum commanding plaintiff to produce in evidence at the time and place fixed for the taking of depositions was void because it was not made on order of the trial court in which the libel case was pending as is expressly required by S.Ct. Rule 57.20; and that even though said subpoena further commanded him "then and there to testify” in said case, yet plaintiff’s refusal to appear was not contumacious but instead was upon advice of counsel in good faith upon well-founded belief that the essential purpose of the subpoena was to require the production and identification of the things therein called for; and that, upon learning that defendants stressed plaintiff’s failure to appear as a witness, plaintiff’s counsel promptly offered forthwith to produce plaintiff or at such time as would suit defendants’ convenience; and that, under the circumstances here shown, the dismissal of plaintiff’s action with prejudice is unjustly harsh and constitutes an abuse of discretion.

Defendants contend that the subpoena was valid and enforceable in both respects, i. e., ad testificandum and duces tecum to produce in evidence the items described therein. In support of that contention they stress the provisions of S.Ct. Rule 57.19, which empowers notaries public “to issue subpoenas for witnesses to appear and testify, and to compel their attendance in the same manner and under like penalties as any court of record of this state”; and which further provides that “any person summoned as a witness by virtue of the provisions of this rule, * * * who shall refuse to produce documentary evidence or tangible things, in compliance with a court order or subpoena, may be committed to prison * * * ”, etc. For the reasons hereinafter stated, the power vested by Rule 57.19 in notaries public to punish a witness who refuses to produce documentary evidence or tangible things in compliance with a court order or subpoena presupposes that such subpoena or order was validly issued as required by S.Ct. Rule 57.20.

Defendants further insist, however, that if the subpoena was improperly issued in the latter respect, plaintiff waived such defect and willfully disobeyed the valid command therein contained to appear and testify as a witness; and that the court did not abuse its discretion in dismissing his action with prejudice.

Prior to enactment of the Civil Code of Missouri in 1943, Laws 1943, p. 353, effective January 1, 1945, notaries public were authorized by statute to take depositions and to issue subpoenas for and to compel the attendance of witnesses thereat in the same manner and under like penalties as in courts of record. There was, however, no statute authorizing any court or official to require the production of books or papers at the taking of such depositions. In 1916, this court, en banc, in the case of State ex rel. McCulloch v. Taylor, Circuit Judge, 268 Mo. 312, 187 S.W. 1181, 1183, stated the law to be: “While ample power has been conferred on the courts to require, on the application of a litigant, the production by the adversary party of books and papers (article 12, c. 21, R.S.1909) and by the process of a subpoena duces tecum to require of other witnesses a like production (Shull v. Boyd, 251 Mo. [452,] loc. cit. 473, 158 S.W. 313), there is no statute authorizing this procedure in the taking of depositions. In an early case decided by this court (Ex parte Mallinkrodt, 20 Mo. 493) it was held that a notary public had no power to commit a witness for refusing to produce books and papers under a subpoena duces tecum; the reason stated being that the power conferred to take depositions is purely of statutory creation and its terms cannot be extended. * * * There is no room here for the application of the doctrine of the inherent power of the court; this, in a general way, is applicable only when it is necessary to the court’s existence and in the proper exercise of its duties imposed by law.”

And so the law remained, sections 492.-090 and 492.270, until the adoption of the new code in 1943, section 142 of which, presently section 492.280, provided: “Upon order of the court in which a cause is pending a subpoena may command the production of documentary evidence on the taking of a deposition and the court may also order a party to produce documentary evidence on the taking of a deposition.” See also State ex rel. Stroh v. Klene, 276 Mo. 206, 207 S.W. 496, 497.

That section, pursuant to the provisions of Article V, § 5, Constitution of Missouri, was superseded by S.Ct. Rule 57.20, effective April 1, 1960. It provides: “Upon order of the court in which a cause is pending, or, in case of a deposition to perpetuate testimony, upon the order of any court authorized to grant a commission to take such a deposition, a subpoena may issue with or without notice, commanding the production of documentary evidence on the taking of a deposition, and the court may also order a party to produce documentary evidence on the taking of a deposition. In case of objection the party objecting may move summarily on notice to the opposite party to quash or limit, which motion shall he heard without delay.” (Italics supplied.)

The language of both the statute, section 492.280, and S.Ct. Rule 57.20, considered in the light of the law as it was announced in State ex rel. McCulloch v. Taylor, supra, was clearly intended to and did change the existing law so as to authorize generally the issuance of a subpoena commanding the production of documentary evidence “upon order of the court in which a cause is pending.” Moreover, although both the statute and the rule expressly state that “the court may also order a party to produce documentary evidence on the taking of a deposition”, and although the rule provides generally that the order of the court for issuance of subpoenas duces tecum “may issue with or without notice”, no provision for issuance of an order of the court without notice on ex parte application is made in the case of such an order directed to a party to produce. Consequently, the issuance of the subpoena duces tecum directed to plaintiff without prior order of the circuit court in which the libel suit was pending was void. This being so, plaintiff’s action is not to be dismissed with prejudice for failure to produce in evidence any of the documents or things commanded by that subpoena.

But defendants say (and apparently the trial court agreed) that plaintiff’s refusal to appear and submit to oral examination required the dismissal with prejudice. In urging this contention in the trial court and in this court defendants rely upon the case of State ex rel. McCulloch v. Taylor, supra, 268 Mo. 312, 187 S.W. 1181. In that case, McCulloch, as relator, sought our original writ in prohibition to prevent the circuit court of the City of St. Louis from compelling his attendance as a witness before a special commissioner of that court to take his deposition and to require him to produce in evidence two letters received by him from a party to the action. The trial court, as hereinabove stated, held the portion of the subpoena requiring relator to produce said letters void, but further noted, 187 S.W. 1. c. 1183: “Relator was required to appear before the commissioner as a witness as well as to produce the letters designated. * * * It lies at the foundation of good government that its citizens shall respond without delay when their services are required in the administration of justice. This was not done in the instant case, and we find no such lack or excessive exercise of jurisdiction as to warrant our interference.” The court for the latter reason decided that there was no lack or excessive exercise of jurisdiction such as to “warrant our interference” and quashed the provisional writ. That case merely holds that the relator who had been duly subpoenaed to give his deposition in a case in which he was not a party was bound to obey the command. It does not hold or even intimate that under the circumstances here shown plaintiff’s action should be dismissed with or without prejudice.

Defendants also direct attention to section 491.180, which provides: “If a party, on being duly summoned, refuse to attend and testify, either in court or before any person authorized to take his deposition, besides being punished himself as for a contempt, his petition, answer or reply may be rejected, or a motion, if made by himself, overruled, or, if made by the adverse party, sustained.” They also cite several cases upholding the action of the trial court in dismissing or refusing to dismiss a party’s pleadings in accordance with the discretion with which the courts are vested under that statute. Kaiser v. Gardiner, Mo.App., 211 S.W. 883, 884, states the rule thus: “While it is true the discretion of the trial court must be exercised with justice and wisdom, as affected by the facts and circumstances affecting the matter in hand, and while such discretion is open to review by an appellate court, yet the party seeking to substitute the discretion of an appellate court for that of the trial court must present a strong and clear case.” To this same effect are: Graveman v. Huncker, 345 Mo. 1207, 139 S.W.2d 494, 499; Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483, 486; Gragson v. Gragson, Mo.App., 290 S.W.2d 420, 422. We have no hesitancy in reaffirming the rule therein announced, but we are convinced that under the circumstances in this case the dismissal of plaintiff’s action with prejudice is unjustly harsh. “A statute providing for a non-suit has been held not to be mandatory. It has been stated that the dismissal of a party’s cause of action is drastic punishment, and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the authority of the court.” 27 C.J.S. Dismissal & Nonsuit § 59, p. 407. And we here note that S.Ct. Rule 67.02, which prescribes penalties for violations of the rules here under discussion, provides: “For failure of the plaintiff * * * to comply with these rules or any order of court, a defendant may move for dismissal of an action or any claim against him.” No contention is here made that plaintiff failed or refused to comply with any order of court and the only rules violated by him were those portions of Rules 57.03 and 57.19 authorizing the notary public to take plaintiff’s deposition and to issue subpoenas for witnesses “to appear and testify”; and the only penalty therein provided for the refusal of a witness to appear and testify is imprisonment, “there to remain without bail until he gives such evidence, or until he be discharged by due course of law.”

The record tends strongly to show that plaintiff acted in good faith and upon the honestly given advice of his counsel. True, of course, that fact does not of itself relieve plaintiff of his duty to appear and give oral testimony in compliance with the valid portion of the subpoena. However, the notary’s transcript affirmatively reveals that on the hour and at the place fixed for taking the depositions, plaintiff’s counsel appeared and announced his willingness to have the court forthwith decide the vitally important question of the right of the notary to require plaintiff to produce the items described in the subpoena and plain•tiff’s willingness to abide by the ruling. Defendants, however, rejected that offer and announced their decision to force dismissal of plaintiff’s case, if possible. And at the hearing before the court on the 14th day of November, it was shown that on November 10th, plaintiff’s counsel, having become convinced that defendants were entitled to take plaintiff’s testimony, advised defendants’ counsel of his willingness to produce plaintiff forthwith or at the convenience of defendants’ counsel. These facts constitute extenuating circumstances that must be given due consideration.

The administration of justice requires that insofar as reasonably may be done in accordance with orderly procedure, cases shall be decided on their merits after full 'hearing. We cannot believe that sound judicial discretion warrants dismissal of plaintiff’s case with prejudice under the circumstances here shown.

Neither party is without fault. After defendant Roberts saw fit to discuss the merits of the State’s case against plaintiff with defendant newspaper, the latter saw fit to publish its version of that discussion. Thereupon, plaintiff, without awaiting the outcome of a trial of the State’s case ■against him, precipitately filed this suit charging defendants with intentional and malicious libel for which he sought to recover one-half million dollars. With similar precipitate action and in patent disregard of the requirements of S.Ct. Rule 57.-08, declaring that a notice to take depositions should contain the names of witnesses to be examined, and S.Ct. Rule 57.20, requiring an order of court as a condition precedent to issuance of a subpoena duces tecum, defendants gave the above described notice to take depositions and caused the issuance of the subpoena. Despite the irregularity of these proceedings, plaintiff filed a so-called “motion for protective order” so lacking in merit as to warrant no serious consideration. When that motion was overruled and plaintiff thereafter refused to appear and later recanted and offered to appear, defendants successfully sought and obtained the court’s order of dismissal with prejudice. All of these proceedings were conceived, pleaded, heard and adjudged within less than thirty days.

We are not here concerned with the merits of the charges alleged in plaintiff’s petition, yet they are of grave import and, on their face, of potential far-reaching effect. The proper and just determination thereof requires that they be tried in accordance with established rules of procedure. That does not appear to have been done in this case.

The judgment of the trial court dismissing plaintiff’s action with prejudice and at the cost of plaintiff is ordered modified to the extent that plaintiff’s action shall stand dismissed at the cost of plaintiff, but without prejudice to the right of plaintiff, in good faith and upon probable cause, to file the same anew within the period of limitations fixed by statute for the filing of actions for libel.

All concur.

      . In this connection, it should further be noted that S.Ct. Rule 58 provides a comprehensive procedure (surrounded by proper safeguards of the rights of all persons affected) for requiring production by a party of both documents and other tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 57.01(b) and which are in his possession, custody or control.

      . That subpoena sets forth sweeping demands for the production of all physicians’ prescriptions for the drugs therein specified (which may expose to public knowledge numerous confidential relationships existing between physicians and patients) filled by plaintiff within the past five years. The relevancy and admissibility of these and other items demanded by the subpoena and the extent to which, they may be enforced, if at all, certainly should be determined upon hearing by the court and, if ordered produced in whole or in part, inspection thereof should be under such supervision of the court as, in justice to all persons affected, it may deem necessary. .


author: DALTON, Judge.

text:
    Fred HARTZ and Dora Hartz, Plaintiffs-Respondents, v. Emory HEIMOS, Defendant, and Kirby Shoults, Defendant-Appellant.
    No. 48506.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.

      William K. Stanard, II, St. Louis (Carter, Bull & Baer, St. Louis, of counsel), for appellant, Kirby Shoults.
    Thomas W. Challis, Jr., Flynn, Challis & Sumner, William L. Mason, Jr, St. Louis, for respondents.
   DALTON, Judge.

Action for damages for the wrongful death of plaintiffs’ eighteen-year old, unmarried and unemancipated daughter, Geraldine Rita Hartz. Verdict and judgment were for plaintiffs for $25,000, and defendant Shoults has appealed.

Plaintiffs’ daughter was struck and killed about 7:20 p. m. on November 24, 1959, by a southbound automobile alleged to have been operated by defendant Shoults. She was standing in the center of, and attempting to cross, Lemay Ferry Road in front of an A & P store, located in the 200 block on the west side of the highway in St. Louis County. The action was instituted against defendant Shoults and one Emory Heimos, who, at the same time and place, was operating an automobile in the opposite direction on the same highway, but, on trial against both, the jury found the issues in favor of defendant Heimos and plaintiffs filed no motion for a new trial.

The cause was submitted to the jury against defendant Shoults solely on the theory that he was negligent in failing to keep a proper watch and lookout while operating his automobile at the time and place in question and that by reason of such negligence he struck and killed plaintiffs’ decedent. Since the first assignment on this appeal is that there was no substantial evidence that defendant Shoults failed to keep a proper watch or lookout, or that any such failure caused Geraldine’s death, a statement of the evidence favorable to plaintiffs is required. We shall disregard defendant’s evidence unless it aids the plaintiffs’ case and also disregard evidence affecting the credibility, weight and value of plaintiffs’ evidence.

The jury could have found the facts to be substantially as follows: The 200 block on Lemay Ferry Road was built up as “a pretty well congested business district.” The highway was paved through the area; it was level and had four lanes but the two outside lanes were used for parking and only two lanes for traffic, one north and one south. The traffic lanes were approximately nine feet in width. A filling station was located across from the A & P store, but a little to the north of the main entrance. The highway curb was directly in front of the main entrance to the store.

At the time in question cars were parked on each side of the highway but none in front of the entrance to the filling station opposite the north part of the A & P store. It was a clear, dry night and driving conditions through the area were normal. Although at 7:20 p. m. it was dark, the area in the 200 block was well illuminated by artificial lighting, chiefly from the business houses. There was no regular crossing for pedestrians immediately in front of the A & P store but pedestrians regularly crossed in that area, since it was 750 feet to the Fanny Street intersection to the south,, where a school crossing was marked bylines, and it was approximately 300 feet, to the north to where Wachtel and Military-Avenues intersected in a “Y” with Lemay Ferry Road. A white line was painted down the center of the highway.

On the evening of November 24, 1959, shortly after 7 p. m., Roger Lutz, Geraldine’s boy friend, met her and she asked him-to take her out on Lemay Ferry Road to-' make some purchases at the A & P store. He let her out in front of the store on the right-hand, west side of the highway and he proceeded on south .to a filling station where he purchased some gasoline and came back north on the east side of the street and' parked his car opposite the A & P store and a little north of its main entrance, where he awaited Geraldine’s return.

About 7:20 p. m. he saw her come out of the store carrying a bag of groceries and' stop on the west curb directly in front of the main entrance to the store. She was . then about a half a car length behind and across the street from his parked car. He looked away and started his motor and as . he did so he heard two distinct noises which i “sounded at first like two cars hitting together,” but it happened fast. He looked!. back and saw someone’s body hit and land upon the hood of an automobile going north and he saw the body start rolling. He didn’t then realize it was Geraldine. He investigated at once and found her body lying on the center line of the street, her head toward the south and her feet toward the north. She was then unconscious.

As stated, at the time and place in question, Emory John Heimos was driving his 1957 Bellaire, four-door Chevrolet sedan north on Lemay Ferry Road in the lane of travel for northbound traffic. He was taking his mother to the doctor. The left side of his car was approximately three feet from the center line. He was driving at twenty miles per hour. As he was passing through the 200 block and in front of the A & P store, there was traffic ahead of him and behind him, but not close behind him. He looked ahead and saw Geraldine wearing a black coat and standing in the middle of the street on the white line two or three "car lengths ahead. She was facing east, standing still and, looking southeast, somewhat in the direction from which his car was approaching. At that time there was a steady stream of southbound traffic on the same highway. When his car reached the entrance to the service station opposite the A & P store, he saw the girl’s body flying through the air toward his car and he put on his brakes an instant before the impact. He had continuously watched the girl from the time he first saw her, but he did not see her move until he saw her “flying through the air toward his car.” While he had not taken his eyes off of her, he “did not actually see a car strike her.” Her body landed on the hood of his car and then went off and landed in the street, probably a car’s length ahead.

Geraldine was immediately taken by ambulance to the St. Louis County Hospital, where she was pronounced dead. A postmortem revealed that she had sustained extensive lacerations and a “crescentic evulsion” of the left hip, crescent shaped as if caused by a motor vehicle fender, also a star-shaped gouge on the right thigh, numerous fractures of the ribs and an extensive fracture of the skull.

When a St. Louis County police officer arrived at the scene, he found Geraldine’s body on the center line of the highway and about fifteen to twenty feet north of the entrance to the A & P store. There were no skid marks observable on the highway and, aside from blood, the only other evidence found on the highway was small bits of glass and bits of plastic from Geraldine’s compact, about twenty-eight feet south of where her body was found.

After the ambulance moved the girl’s body, Heimos took his mother to the doctor and on the way noticed that his left front headlight had burned out. The glass was not broken and he had the sealed-beam unit removed and replaced with a new one. In addition, he noticed that there were two small dents on the hood of the Chevrolet, where Geraldine’s body had landed.

Defendant Shoults resided near Festus, Missouri. He was 43 years of age and was employed by the Pittsburgh Plate Glass Company at Crystal City. He owned a light green, 1957 Pontiac automobile with a dark green top. On November 24, 1959, the car was “quite dirty.” On the night of the 23rd Shoults had slept only about four hours and a quarter, and then gotten up and gone to work at midnight. He worked from midnight until 8 o’clock on the morning of the 24th. He left his home about 2:30 in the afternoon and drove to St. Louis and left downtown in St. Louis at about ten minutes after six. He purchased gasoline at a station on South Broadway and passed along and through the 200 block of Lemay Ferry Road at approximately 7:20 p. m. He drove in the southbound lane at about 20 m. p. h. No one was with him. He was in a normal condition and not sleepy. In going through the area where the A & P store is located, he did not swerve his car, apply his brakes or sound any warning, and he did not ■ see Geraldine standing in the center of the street, although he said he was looking straight down the road. His headlights were on dim, they were pretty good headlights and showed the road ahead for the normal distance. There was artificial illumination around the area in addition to his headlights. Nothing happened to divert his attention prior to the time that he heard a thud on the left side of his vehicle. He did not look around to see what caused it. He did not see anything at that time and didn’t stop or slacken speed, but drove on about a block or more and stopped momentarily and noticed an indentation on his left front fender. He did not get out of the car to examine the fender or go back to the place he heard the thud, but went straight on to Festus and to his home, and to bed. The first time he knew that a pedestrian had been killed in the mentioned area was at the breakfast hour the next morning. He then went out and looked at his car and observed that the dirt had been removed from the left headlight area of the car and the headlight rim was recessed, “pushed back.” He also observed the dent he had observed the night before on top of his left front fender. He also observed “some grease apparently that was on my headlight rim, and at the top of my headlight rim was sort of polished clean, no dirt in there such as balance of my car is all over.” He did not observe any fiber or fabric about the headlight rim or indentation on the fender. He returned his car immediately to the St. Louis County Police in the condition in which it was then in and told them the approximate hour and approximate location in which he had heard the thud and later observed the dent on his car.

A member of the St. Louis County Police Department took pictures of the Shoults car and removed some black wool fibers from the crushed paint in the dent in the left front fender. He also took some scrapings of paint from the Shoults car. The fibers and paint scrapings were examined by a chemist for the St. Louis Police Department and he found the fibers corresponded with the fibers from Geraldine’s coat, but he could not say they came from the coat. He also found paint in and on Geraldine’s coat that corresponded with the scrapings from the Shoults car, but he was unable to say that the paint came from that car. The light green paint chips taken from the Heimos car had a tan undercoating, while the light green chips from the Shoults Pontiac had a black undercoating.

At the time and place in question one Singer was looking out of the front window of his auto parts store on the east side of Lemay Ferry Road, across from the A & P store. He did not see Geraldine standing in the center of the highway, but he heard a thud and then saw the girl “coming through the air” and come into contact with a northbound automobile. He heard two thuds and ran out and saw the girl’s body on the pavement 35 to 50 feet north of where he had first seen her in the air. He also saw the rear end of a dark car going south. It didn’t stop. Another witness saw a “dark car,” operated by a man and going south at about 30 m. p. h. immediately after the witness had heard a crash and had seen “a girl crumbling into the street.”

Appellant insists that the court erred in overruling his motion for a directed verdict offered at the close of all the evidence because there was no evidence of negligence on his part or as to what negligence caused Geraldine’s death. Appellant argues that no one saw him on the night of the occurrence; that in any case he was looking straight down the road and he didn’t see the deceased; and that no inference of negligence in failing to keep a proper watch and lookout can be drawn from his testimony, or from the evidence in the case. Appellant says the cause was submitted on “speculation and conjecture” as to whether any negligent failure to keep a proper lookout was the proximate cause of Geraldine’s death, and that “the jury would have had to speculate as to whether or not the girl stepped back into the southbound lane.” Berry v. Harmon, Mo.Sup., 323 S.W.2d 691. Appellant argues that a “quite dirty,” light green car with a dark green top was not a “dark car” ; that no one testified as to any negligent failure on his part to keep a lookout, or saw his car strike Geraldine; that “in the absence of substantial evidence from which a jury could find that in the exercise of the highest degree of care he could have seen the girl in time to avoid hitting her” no case was made for the jury (O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129) ; and that the evidence, considered as a whole, does not have a tendency to exclude every reasonable conclusion other than negligence in failing to keep a lookout. Osterhaus v. Gladstone Hotel Corp., Mo.Sup., 344 S.W.2d 91.

We have carefully examined the evidence in view of each of the foregoing contentions as to the sufficiency of plaintiffs’ evidence to make a case for the jury and we have reached the conclusion that a submis--sible case was made out on the issue of negligence submitted.

There can be no objection to one’s establishing negligence and proximate cause by circumstantial evidence. “Of course facts essential to a recovery may be proved by circumstantial evidence, but the shown ■circumstances must be such that the necessary facts may be inferred therefrom and they must reasonably follow. The evidence ■must ‘exclude guesswork, conjecture, and speculation as to the existence of the necessary facts.’ ” Brawley v. Esterly, Mo.Sup., 267 S.W.2d 655, 659; Berry v. Harmon, supra; Osterhaus v. Gladstone Hotel Corp., supra.

The evidence shows there was sufficient artificial illumination in the area for one to see a person in the street for several •car lengths, without the aid of headlights. It was in a congested business district with stores and parked cars on each side of the highway. Geraldine was standing still in the center of the street, on the white line at the edge of the 9 foot southbound lane, when she was struck by a southbound car. ’She had crossed from the west side to the •center, crossing the southbound lane. Defendant Heimos, operating his northbound •car, had observed Geraldine standing on the center line of the street when his car was “two to three car lengths” to the south, and he watched her as his car approached her location. Her impact with his car did not occur until his car had reached the service station entrance. Appellant admitted driving south through the mentioned area at approximately the same time Geraldine was killed. In that area he heard a noise, a thud at the left of his car. His car windows were up and he did not locate the thud and did not stop, until a block or so beyond the A & P store. He then for the first time observed the dent in his left front fender. The next morning he observed the “pushed back” left headlight and the mentioned dent, and he noted that the dirt had been removed from around the headlight and from part of the left front fender. Subsequently, wool fibers taken from the dent and fender were shown to correspond with wool fibers taken from Geraldine’s coat and particles of paint taken from her coat were shown to correspond with paint from appellant’s car. A “dark car,” southbound and occupied by a man, was seen leaving the area at 30 m. p. h. as Geraldine’s body was “crumbling in the street.” At no time did appellant see Geraldine, or see any reason to apply his brakes, swerve or slacken speed, but Geraldine was there and could have been seen, as the evidence shows. Had appellant seen her standing on the center line of the highway, at the edge of the nine foot southbound lane, he could have passed her without striking her. "Where one is charged with the duty to look and to look is to see, he must be held to have seen what looking would have revealed.” Weis v. Melvin, Mo.Sup., 219 S.W.2d 310, 311; Wilkins v. Stuecken, 359 Mo. 1047, 225 S.W.2d 131, 134. The evidence was substantial and sufficient to sustain a finding that appellant negligently failed to keep a lookout; that, if a proper lookout had been kept, Geraldine could have been seen standing on the center line in the street in time for appellant to have avoided a collision with her; and that appellant’s negligent failure to keep a proper lookout was the direct and proximate cause of the collision and her death.

Appellant further contends that the court erred in giving Instruction 3, plaintiffs’ verdict directing instruction against defendant Shoults, (a) because there was no substantial evidence to support the required finding by Instruction 3 that defendant Shoults “failed to exercise the highest degree of care in that he drove the automobile he was operating at the time and place mentioned in evidence, if you so find, into the person of Geraldine Hartz, without maintaining a proper watch and lookout, if you so find”; and (b) because Instruction 3 failed to require a finding that failure to keep a proper watch and lookout was negligence and failed to specify what negligence resulted in the collision and allowed the jury to indulge in speculation and conjecture and gave them a roving commission.

In support of assignment (a) appellant re-argues his contention that there was no substantial evidence in the record tending to show that he failed' to keep a proper watch or lookout or that such failure caused the death of Geraldine Hartz. Appellant relies strongly upon his own testimony. Although defendant Shoults was called as a witness by the plaintiffs, the plaintiffs were not bound by his testimony that at the time and place he was exercising the highest degree of care and kept a prudent lookout, since plaintiffs offered other evidence from which a contrary inference could be drawn. Frank v. Wabash R. Co., Mo.Sup., 295 S.W.2d 16, 22(14); Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40, 159 S.W.2d 589, 594 (7) ; Cook v. St. Joseph Ry., Light, Heat & Power Co., 232 Mo.App. 313, 106 S.W.2d 38, 44(4). In view of our holding with reference to the sufficiency of the evidence to make a case for the jury on the issue of negligence upon which the cause was submitted, it is only necessary to say that we find no merit in assignment (a).

Only a general objection was interposed to the giving of Instruction 3 when it was given. Only objection (a), above, was set forth in defendant’s motion for a new trial, except for a further statement that the instruction “calls for mere speculation and conjecture on the part of the jury.” Hence, the first part of objection (b) appears for the first time in appellant’s brief on appeal. This part comes too late for consideration by an appellate court. Supreme Court Rule 79.01 and 79.03, V.A.M.R. Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 711. However, we find no merit in the particular objection, since the instruction required a finding of the failure to exercise the highest degree of care in the operation of his automobile in that he drove his automobile into the person of Geraldine Hartz, without maintaining a proper watch and lookout. The contention that the instruction calls for mere speculation and conjecture on the part of the jury is not developed in the argument, except by appellant’s statement that “the instruction failed to provide the jury with any guide or standard by which to determine what particular acts or omissions would constitute negligence”; and that nowhere in the instruction was the jury told what negligence was, and it was therefore “an invitation to them to indulge in the wildest surmise and speculation.”

The instruction is not erroneous in the respects mentioned, since it required a finding of failure to exercise the highest degree of care in driving his vehicle into and upon Geraldine without maintaining a proper watch and lookout. Such a finding constituted a finding of negligence. The instruction further required a finding that Geraldine was killed as a result of the conduct of defendant Shoults as submitted in the instruction. The assignment is overruled.

Appellant further contends that the court erred “in refusing to grant a new trial on the ground that the verdict was excessive, and was the result of bias and prejudice, and misconduct on the part of the jury.” It is clear from this assignment of error and the printed argument in support thereof that the only relief sought is a new trial on the issue of damages. Knight v. Swift & Co., Mo.Sup., 338 S.W.2d 795, 801(11-12).

We have heretofore set out the facts and circumstances attending Geraldine’s death and it is now only necessary to further say that the evidence tends to show that Geraldine was 18 years, 2 months and 6 days old at the time of her death. She resided with her parents and was employed by the Zumwalt Company, where she had worked regularly for ten months. Her rate of pay was $1.10 per hour. Her particular position with the company was “receptionist and in charge of typing all contracts that left the office.” She was a healthy girl, 5 feet 7 inches tall and weighing 165, and she had never been in any trouble. She had attended high school for three years and then attended Rubicam’s business school, where she graduated. She took shorthand and bookkeeping. She was a cheerful and mature person, had a charming personality and was dependable in her work. She dressed conservatively and in good taste, made a fine appearance and was “loved by anyone whoever knew her.” She was not engaged to be married. Off hours and on week ends she worked about her home doing housework for herself and her parents. Her parents paid her funeral expenses in the sum of $1,541.65.

As to the amount of damages recoverable, Section 537.090 RSMo 1959, V.A.M.S., provides : “In every action brought under section 537.080, the jury may give to the surviving party or parties who may be entitled to sue such damages, not exceeding twenty-five thousand dollars, as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death, and having regard for the mitigating or aggravating circumstances attending the wrongful act, neglect or default resulting in such death.”

Appellant refers to the statute, Section 537.090, and to certain cases dealing with the measure of damages for the wrongful death of a minor child, and then argues as follows: “Inasmuch as the pecuniary loss in this case was negligible, it must have been the slender reed of ‘aggravating circumstances’ upon which the jury relied in arriving at a verdict of twenty-five thousand dollars; and the defendant earnestly urges that in so doing, the jury had no justification and was motivated -by bias and prejudice.” Appellant says the jury “wrongly regarded this case as one of hit and run driving.” Appellant further contends that “in the instant case there was no evidence of aggravating circumstances, and the jury’s verdict was based on bias and prejudice alone, and was therefore misconduct requiring a new trial.” However, the issue of mitigating or aggravating circumstances was submitted to the jury by plaintiffs’ Instruction No. 7 on the measure of damages, and, while defendant Shoults objected to the instruction at the time it was given, the instruction was not mentioned or referred to in his motion for a new trial, and the giving of it is not assigned as error on this appeal. Under such circumstances we are not called upon to determine whether mitigating or aggravating circumstances were properly submitted to the jury. However, see Richeson v. Hunziker, Mo.Sup., 349 S.W.2d 50, 53.

No question as to contributory negligence of the deceased was an issue in the case, as no instruction was offered thereon. Shepard v. Harris, Mo.Sup., 329 S.W.2d 1, 6.

In support of his contention that a new trial should be granted on the issue of damages, appellant relies particularly on Parsons v. Missouri Pac. Ry. Co., 94 Mo. 286, 6 S.W. 464, decided in 1888, where for the pecuniary loss resulting from the wrongful death of an eighteen-year old minor child the jury returned a verdict for $5,000, the maximum benefits then allowable. The case was reversed on appeal on account of the giving of an erroneous instruction on the measure of damages, which instruction the court held to be prejudicial in view of the amount of the verdict returned by the jury. The court said: “The cause of it was, doubtless, not that the jury were influenced by either prejudice or passion, but that they were not sufficiently informed as to the proper standard by which the damages ought to have been measured, owing to the very general terms of the instruction given upon that subject.”

In that case “there were no circumstances shown indicating willfulness, malice, wantonness, recklessness, or conscious negligence, or any wrong intent that could be made the basis of a verdict for aggravated, exemplary, or punitory damages.” The court further said: “In that class of cases in which the jury would be warranted in giving exemplary damages, by reason of the circumstances of aggravation attending the act, the amount must necessarily be left, within the limit of the statute, to the fairness and sense of justice of the jury, discharging their duty uninfluenced by prejudice or passion, and as to such damages no standard for their admeasurement can be given by the court.” The case does not aid appellant. Aside from the fact that the value of money has changed since 1888 the appellant here, as stated, does not complain in any manner of the form of the instruction submitting the issue of damages and mitigating or aggravating circumstances to the jury.

Apparently, the legislative intent as expressed in Section 537.090 “is to give the jury a broad discretion in computing damages in actions for wrongful death, within the limit prescribed, based upon the pecuniary loss of every kind and character which, under all the circumstances of the particular case, will be sustained by those entitled to recover as a direct result of the death, and based also upon circumstances in mitigation or aggravation of the wrongful act, neglect, or default which caused it; and that this discretion given the jury in computing fair and just damages should not be interfered with unless it has clearly been abused.” Steger v. Meehan, Mo.Sup., 63 S.W.2d 109, 115; Patison v. Campbell, Mo.Sup., 337 S.W.2d 72, 75.

The question of whether the verdict was so grossly excessive “as to be conclusive evidence of the fact that it was the result of passion and prejudice on the part of the jury and of misconduct on their part against the defendant” was presented to the trial court by defendant’s motion for a new trial and it was overruled. The trial court was entitled to weigh the evidence and infer bias and prejudice from the size of the verdict alone. Mitchell v. Pla-Mor, Inc., 361 Mo. 946, 237 S.W.2d 189, 192(6-8); Parks v. Thompson, 363 Mo. 791, 253 S.W.2d 796, 798. The verdict has had the approval of the trial court.

The record does not disclose any occurrence during the trial of the cause from which we would be justified in finding misconduct or concluding that the jury was in any-wise prejudiced against this appellant. The only basis suggested for an inference-that there was, in fact, any bias and prejudice on the part of the jury is the amount of the verdict. But, “even if excessive, the amount of an award does not, in and of itself, show passion and prejudice.” Brewer v. Rowe, 363 Mo. 592, 252 S.W.2d 372, 376-(6) ; Loveless v. Locke Distributing Co.,. Mo.Sup., 313 S.W.2d 24, 33; O’Brien v. Louisville & Nashville R. Co., 360 Mo. 229, 227 S.W.2d 690, 693; Knight v. Swift & Co., supra, 338 S.W.2d 795, 802.

In the case of Brewer v. Rowe, supra, a judgment of $15,000 for the pecuniary loss sustained by reason of the wrongful death of an eleven-year old child was permitted to stand, although it was for the maximum-amount allowable under the then statute.. In the case of McCrary v. Ogden, Mo.Sup., 267 S.W.2d 670, 676, this Court permitted a $10,000 verdict to stand in a wrongful death action wherein the deceased was seventeen years and ten months of age, and' only pecuniary loss was involved. The Court pointed out that the amount of a verdict in a wrongful death case wherein the deceased is a minor necessarily involves some speculation on the part of the jury. In the case of Shepard v. Harris, supra, 329 S.W.2d 1, the deceased was seventeen years and seven months of age at thfe time of his death and both pecuniary loss and aggravating circumstances were submitted, and a $15,000 judgment for wrongful death was permitted to stand.

On the record in the instant case, and in view of the issues submitted to the jury, we are satisfied that this Court should not interfere with the jury’s verdict, which the trial court has approved as a fair and just amount for the necessary injury resulting from Geraldine’s death, having regard for the aggravating circumstances which attended the negligence resulting in such death.

The judgment is affirmed.

All concur.


author: EAGER, Presiding Judge.

text:
    Arthur PORPORIS, Victor Buys and G. H. Bohling, Appellants, v. CITY OF WARSON WOODS, a municipal corporation of the fourth class, Fred Leber, Mayor of the City of Warson Woods; Robert Christopher, Robert C. Ely, Dale Wernig, Ray Dreher, William Vesser and Charles Wilson, as members of the Board of Aldermen; Harold Neusitz, Building Commissioner of Warson Woods; John Dugan, Charles Eck, William Kindorf, Sterling Snyder, and Al Gabris, as members of the Zoning Commission, and Everett Schneider, doing business as Everett Schneider Development Company, Respondents.
    No. 48499.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1962.

      Donald S. Hilleary, St. Louis, for appellants.
    Jesse L. Renderer, St. Louis, for respondents City of Warson Woods et al.
    Mortimer A. Rosecan, St. Louis, for respondent Everett M. Schneider.
   EAGER, Presiding Judge.

Plaintiffs, owners of three residence lots in the City of Warson Woods in St. Louis County, filed a declaratory judgment suit for the purpose of invalidating one section of the comprehensive zoning ordinance of the city, and also a special permit issued thereunder for parking space. The members of the Board of Aldermen, the members of the Zoning Commission, the Mayor and the applicant for the special permit were joined as defendants. Such allegations of the petition as are material to our issues will be referred to later. The answer admitted the formal allegations and denied the substantive ones. The trial court found and decreed that the controverted section of the zoning ordinance and the special permit were valid and constitutional.

Most of the facts were stipulated, although there was some incidental evidence. Warson Woods, a fourth-class city, has in force a comprehensive zoning ordinance (No. 70), enacted pursuant to sections 89.-010-89.140, RSMo 1959, V.A.M.S.; all buildings in the commercial district were required thereby to provide specified off-street parking space. Section 3 of Article IV of that ordinance is as follows: “The Board of Trustees shall have the authority to permit the establishment of off-street parking space within residential districts, not more than 125 feet from any commercial district, and contiguous thereto, by special permit, but only when such requirements and standards of improving, maintaining, operating, and screening of the parking space are imposed as will protect the character of the surrounding development. No such special permit shall be granted until after a public hearing and after a report has been submitted by the Village Zoning and Planning Commission.” Defendant Schneider applied orally to the Board of Aldermen (formerly called the Board of Trustees under village organization) for a permit to construct a shopping center. This proposal was rejected, as presented. Later Schneider presented a modified proposal which included a request for permission to construct additional parking space to meet the requirements of the ordinance, in an area adjacent to and north of the shopping (commercial) area, but designated as residential. This area, which we shall simply refer to as the “parking area” was bounded by the commercial area on the south and by a park on the north; the park had been donated by Schneider and was used by the public. It is conceded that this area does not extend more than 125 feet into a residential area, and that it is contiguous to the commercial area. All of plaintiffs’ lots are entirely separated from the proposed parking area by the park, and they face a street which lies north of the park. The modified proposal was accompanied by plans and a sketch. This entire proposal, with the plans and sketch, was referred to the Zoning Commission. The Zoning Commission considered the proposal, was unable to agree, and announced that fact to the Board of Aldermen. Later, however, it submitted a written report which dealt largely with the shopping center project as a whole; included therein were suggestions that the parking space was insufficient even including the proposed additional area, that the “rear yards” were not sufficient, and that the height of one building was too great. We quote the following from the report, since some controversy has risen concerning it:

“Mr. Schneider’s plans also contemplate the use for parking purposes of property now zoned residential. The procedure to be followed in granting such permission is contained in Section 3 of Article IV.
“It is the recommendation of this Commission that if any changes are to he made in the zoning ordinance which has the effect of broadening the Commercial District at a time when residential development adjoining that district has been completed, that such changes be made only after careful consideration of the effect of such changes on the adjoining residential property.
“We also suggest that the Board determine the effect of such a project on the drainage situation, having in mind the desirability of avoiding another ‘Lake Manchester’ condition which resulted from the Warson Woods Shopping Center development.”

Upon further consideration the Board determined to approve the plan, and to begin proceedings for the purpose of issuing a special permit for the additional parking. It called and held a public meeting thereon, at which plaintiffs’ counsel appeared and protested; it later received a petition signed by four protestors under section 89.060, RSMo 1959, V.A.M.S. It held additional special meetings and on March 13, 1959, it unanimously passed Ordinance No. 150 which granted the permit, conditionally. Attached to the ordinance was a form of “Agreement and Permit” which was in fact executed by Schneider and the city. This required Schneider to pave the area, as indeed was required in all parking areas under Section 2, Article IV of the general zoning ordinance; further requirements were: a curb fifteen feet inside the north line, the grading of the area for proper drainage, the construction of all exits and entrances so as to lie within the commercial area, the arrangement of all lights so as to shield the adjacent residential areas, the construction of a chain link fence, a concrete retaining wall, and a louvered redwood fence in certain respective portions of the area, and designated screenings and plantings, evergreen and otherwise.

At approximately the time the permit was issued by the city, this suit was filed. Plaintiffs’ Points here are, in essence: (1) that the special permit (Ordinance No. 150) is void because Section 3 of the Zoning Ordinance constitutes an unwarranted delegation of legislative discretion to an administrative board without sufficient standards or guides, in violation of Article II, Section 1, Missouri Constitution, V.A.M.S.; and (2) that, assuming constitutionality, the permit issued here was still invalid because no report was submitted by the Zoning Commission as required. Counsel mention, very incidentally, the due process clause, Article I, Section 10, Missouri Constitution, but do not argue the point and we disregard it. It does not, in fact, merit consideration here.

The first substantive question is whether the Board of Aldermen (which we shall refer to merely as the Board), in enacting the general zoning ordinance, sufficiently circumscribed the discretion which it delegated to itself as an administrative body, so to insure that such discretion would not be arbitrarily exercised. It is true, as plaintiffs suggest, that an ordinance or statute which “attempts to clothe an administrative officer with arbitrary discretion, without a definite standard or rule for his guidance” is unconstitutional. Lux v. Milwaukee Mechanics Ins. Co., 322 Mo. 342, 15 S.W.2d 343 cited by plaintiffs. In that case the ordinance gave to a city official the power to condemn a building after a fire and to order it torn down as unsafe, with no guides, tests or standards whatever to protect the property owner from arbitrary action, and without the designation of any facts or circumstances which would be recognized as creating an emergency justifying the action. As one phase of the argument that the present ordinance imposes no sufficient standards, counsel argue (as nearly as we can understand it) that the conditions imposed thereby are not a standard or guide to be used in making the original determination whether to issue or not to issue the permit, but are merely things to be considered and requirements to be imposed “after a decision has been made to issue a permit * * We do not so construe the ordinance. It is clear to us that the real intent of Section 3 is to require the Board, acting in its administrative capacity, to determine in each case and under the existing circumstances (1) whether the absolute requirements of 125 feet and “contiguous thereto” are met; and (2), whether such requirements as to improving, maintaining, operating and screening the area may be imposed as will “protect the character” of the residence area. If it finds affirmatively on these propositions, then such requirements are to be affixed, and a permit granted conditionally, as was done in this ■case; if not, a permit is to be denied. Perhaps plainer language could have been used, but any other interpretation is unreasonable.

Counsel also cite Congregation Temple Israel v. City of Creve Coeur, Mo., 320 S.W.2d 451, and State ex rel. Ludlow v. Guffey, Banc, Mo., 306 S.W.2d 552, as supporting "his contention of the inadequacy of the standards imposed. In the Temple Israel •case an ordinance permitted churches, schools, golf courses, private clubs, public parks, playgrounds, hospitals and institutions in any zoning district only upon written application, investigation by and report •of the Zoning Commission, a public hearing, and “subject to such protective restriction as it may deem necessary to protect the •character of the surrounding property, the public health and the public welfare, * [320 S.W.2d 452.] The primary bases of the decision were: that the ordinance infringed upon the federal constitutional provisions guaranteeing “freedom of religious worship,” as well as upon our own constitutional provisions for the establishment of public schools; and, that our legislature, in •enacting its enabling legislation for zoning (Ch. 89) had no intention of “authorizing the exclusion of either churches or schools from residence districts * * * ” (320 S.W.2d loc. cit. 455). In commenting on that ordinance (perhaps as dicta) the court said, 320 S.W.2d loc. cit. 452-453: “While this ordinance provides some standards for establishing protective restrictions when a permit is granted, it does not provide any standards for granting a permit as did the ordinance considered in State ex rel. Ludlow v. Guffey, Mo.Sup., 306 S.W.2d 552, cited by defendants.” Counsel here seem to take this as a statement that the ordinance there literally did not contain any standards and they seek to compare it with our present ordinance. We do not so read the opinion, but construe the statement to mean that the ordinance there contained no such standards as were shown in the Guffey case, to be considered later. In any event we do not find that the requirements imposed by the ordinance in the Israel case are the equivalent to those in the present case. We note also that the ordinance there sought to control such an enormous group of entities and institutions that a mere generalization such as the requirement of “protective restriction” would provide, at best, very little limitation upon the discretion of those charged with the administration of the ordinance.

The case of State ex rel. Ludlow v. Guffey, Banc, Mo., 306 S.W.2d 552, 554, is apparently cited by plaintiffs as an illustration of an ordinance containing proper restrictions. In that case a comprehensive zoning ordinance permitted gasoline filling stations in any one of three areas of Webster Groves, upon special permit issued after a public hearing, and after referral to and a report from the City Plan Commission “regarding the effect of such proposed building or use upon the character of the neighborhood, traffic conditions, public utility facilities and other matters pertaining to the general welfare.” There an application had been acted upon adversely both by the Commission and the City Council. The proceeding was one in mandamus, in which it was actually sought to invalidate the ordinance. In upholding the ordinance the court held: that the council acted administratively in passing upon the application and in thus enforcing the legislation which it had previously enacted; and, that the city council was authorized under this procedure to determine "whether the granting of the permit will or will not promote the health, safety, morals, or general welfare of the people of Webster Groves in accordance with and in the accomplishment of the comprehensive zoning plan * * The court further noted that a determination of the sufficiency of the standards imposed was affected by the fact that the section attacked was an integral part of a comprehensive zoning ordinance (as ours also is) in which a uniform procedure was outlined to guide the Council’s discretion. The court further said, 306 S.W.2d loc. cit. 558: "We think it would be impracticable to set forth a completely comprehensive standard insuring uniform discretionary action by the City Council. * * * Section 13 prescribes a procedure for determining, and requires the City Council to determine, whether the location and use of a filling station in C commerical would or would not promote the ‘health, safety, morals or general welfare of the community’ by determining specifically whether such location and use would or would not adversely affect ‘the character of the neighborhood, traffic conditions, public utility facilities and other matters pertaining to the general welfare’; it requires that such determination be made upon evidence and facts adduced before it (a quasi-judicial function) and requires the Council to thereafter exercise its discretion based upon such finding.” The case of State ex rel. Triangle Fuel Co. v. Caulfield, 355 Mo. 330, 196 S.W.2d 296, also cited, is so dissimilar on its facts as to require no discussion here.

The defendants rely largely upon the Guffey case, supra, except for citations and arguments concerning rules of construction, which we need not elaborate upon. It is well to note, however, that the construction given to a statute or ordinance by those charged with its enforcement is entitled to “respectful consideration.” State ex rel. McAllister v. Cupples Station Light, Heat & Power Co., 283 Mo. 115, 223 S.W. 75, 83.

We hold that the provisions of the present Section 3, fairly considered, impose standards sufficient to meet the constitutional requirements. Here there are two immutable requirements (none in Guffey) namely, that the extended area may not intrude more than 125 feet into a residential district, and that it must be contiguous to the commercial area. The ordinance provides that: “No such special permit shall be granted until after a public hearing and after a report has been submitted by the Village Zoning and Planning Commission.” The Board is then entitled to consider and rule upon the application, granting it if it finds that the specifically stated protections will be adequate under the existing circumstances; if it does so find, it shall impose the conditions, —otherwise it should deny the application. Other provisions of the zoning ordinance required that all parking areas should be “dust-free, all-weather surface.” (Section 2 Article IV.) We do not construe Section 3 as giving the Board the discretion to waive the specified requirements of protection at its whim or caprice, as plaintiffs suggest, but as directing it to determine how they may and shall be applied, i. e., the physical details, and whether they will then furnish adequate protection. The detailed contract executed between Schneider and the city, which is here as an exhibit, illus-strates the practical impossibility of including in a general ordinance the specific protection appropriate in every such instance. It goes into intricate detail regarding paving, grading, location of entrances, curbing, fencing, the construction of a retaining wall and a parkway, and the landscaping and planting, in the latter of which even the types of shrubbery and trees are specified. A copy of this contract was made a part of the ordinance-permit, and it was executed “in consideration of the issuance of the permit and of the mutual agreements.” The contract was made a continuing one, and the city was empowered to revoke the permit, after notice and hearing, upon Schneider’s future default.

We wholly fail to appreciate the significance of plaintiffs’ argument to the effect that Section 3 furnished no requirement that a permit be issued if certain facts are found * * * ” and that A could be granted a permit and B arbitrarily refused one under similar applications and facts, “because the requirements * * * are not conditions which the board uses” in determining whether a permit “should or should not issue in the first instance.” If, in fact, the Board does not consider the suggested requirements and the existing circumstances in connection with its determination and act accordingly, and if it does not impose the necessary protective measures as conditions to the granting of a permit, then it wholly fails to appreciate the intent and meaning of its own legislative act. We attribute no such caprice to the board and no such meaning to the ordinance. We rule that the standards imposed were sufficient, and that Section 3 of Ordinance 70, as well as the permit, are valid.

The remaining contention may be disposed of briefly. Plaintiffs say that even if the ordinance is constitutional, the permit is invalid because no report was submitted by the Zoning Commission, as required. Therein counsel argue that the document submitted was not a report in fact, because it contained no findings as to the effect of the proposed permit, such as were made in Guffey, supra; and that here (as quoted above) the Commission merely pointed out that the procedure to be followed was contained in Section 3 of Article IV of the Zoning Ordinance. The report actually went further; it contained two additional paragraphs which, although they dealt largely with the project as a whole, also recommended “careful consideration” of the effect on the residential area and of the drainage problem in particular. The Zoning Commission had been in disagreement on the whole proposal, as the record specifically shows, and had announced that fact to the Board. It seems apparent that the report actually submitted was made in view of its disagreement, and perhaps as a compromise. The Board need not abdicate its functions merely because the Commission was unable or unwilling to submit a more definite recommendation. Essentially the report is merely advisory; plaintiffs concede this in their reply brief at page five, and indeed, if the Board’s action was required to be based upon the content of the report, then the real discretion would be improperly vested in the Zoning Commission. In any event, a report was made, and perhaps it was the best one available under the circumstances. The Board then, concededly, held a public hearing, received oral and written protests, and acted. It had the power to do so. There is nothing in this ordinance which requires, nor need it require, that a public hearing be held before the Commission if, in fact, the Board holds one.

Finding no error, the judgment is affirmed.

All of the Judges concur.