author: STOCKARD, Commissioner. EAGER, Judge. DONNELLY, Judge. STORCKMAN, Chief Justice. FINCH, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. C. C. BOWLING, Gail Poor Bowling, Juliet Bowling Rollins and W. C. Bowling, Appellants.
    No. 51889.
    Supreme Court of Missouri, En Banc.
    May 8, 1967.

      Robert L. Hyder, Thomas E. Cheatham, Jefferson City, for respondent.
    Terence C. Porter, Columbia, for appellants, Welliver, Porter & Cleaveland, Columbia, of counsel.
   STOCKARD, Commissioner.

In this action for condemnation of land for highway purposes the jury award of just compensation was $15,000, and the landowners have appealed. The difference between the award and that to which they claim they are entitled under the evidence exceeds $15,000.

The tract of land owned by appellants contained 29 acres and was located in the City of Columbia on the north side of Old U. S. Highway 40, now designated as Business Loop 70. The tract had approximately 1,000 feet frontage on Business Loop 70 with a depth of 1,320 feet. The southern 300 feet of the tract was zoned “C-3” for “highway business,” and the remainder of the tract consisting of approximately 23 acres was zoned “R-l” for single family residences. For purposes of constructing a one-way ramp from Business Loop 70 to Route B the Highway Commission of Missouri obtained by condemnation in October 1963 a portion of the above described tract consisting of approximately 61,500 square feet. The portion taken was a strip bordering on Business Loop 70 and extending westward from the eastern boundary a distance of 760 feet. At the east end the portion taken had a depth of 165 feet, the northern boundary was irregular, and the portion was 50 feet in depth at the west terminus.

As is frequently the case, there was a wide variance between the expert witnesses as to the damages sustained by appellants by reason of the appropriation. Appellants’ witnesses placed the damages in various amounts ranging from $50,000 to $99,-086. The witnesses of the State placed the damages from $1,526 to $9,100. The only issue on this appeal pertains to the refusal of the trial court to permit one of Appellants’ witnesses to testify concerning the terms of an executory contract for the sale of nearby property.

Mr. Richard C. McDonnell, vice president of the Boone Realty Corporation, was a qualified expert witness called by appellants. He testified that he had made an appraisal of appellants’ property on October 17, 1963, to determine the damages sustained by appellants by reason of the appropriation, and he stated that in arriving at his estimate of damages he took into consideration the physical features of the property and five recent sales of other comparable property which he described in detail. Before he stated the result of his appraisal of appellants’ damages, he was asked if he had made an appraisal of “any tracts of land on Business Loop 70,” and he replied that he had appraised “the southwest corner of Business Loop 70 and Old 63 South early in 1963” (known as the “Driv-a-teera tract”) for a man in Chicago by the name of Aker. An objection was sustained when he was asked the result of that appraisal.

Mr. McDonnell then testified that the Driv-a-teera tract was the subject of a contract of sale entered into in April of 1965 and that he was aware of the terms of the contract. When asked “the amount of the sale price,” an objection was made on the ground that “there is no showing that the sale is a finished sale.” This objection was sustained, and appellants then made an offer of proof that if permitted the witness would testify “that he had personal knowledge and had verified the terms of a contract of sale for a tract of land located at the Southwest corner of Business Loop 70 and Business 63 South, * * * [that] the tract under contract contained 102,000 square feet, and the contract is dated April 30, 1965, and is between the owner, Mr. and Mrs. James Akers and the buyer MFA Central Cooperative, for a total consideration of $80,000. * * * The date of closing will be October 1, 1971. On the date of closing, [a] properly executed warranty deed [is to be delivered] containing the usual customary warranty pertaining to said real estate. The sum of $20,000 cash [is to be paid] on date of closing and the remainder of the purchase price, $60,000, will be evidenced by an unsecured corporate note. * * * [T]he purchaser under this agreement will hold the premises for a period of six years commencing October 1, 1965, and ending September 30, 1971, as lessee for a monthly rental of $400 a month. And the contract of purchase is as of the date at the end of the lease.”

Although not uniformly applied in all states, see the annotation at 85 A.L.R. 2d 110, the rule has long been established in this state that evidence of the price paid by a willing purchaser to a willing seller for property comparable to that being appropriated for public use, when the sale was made reasonably near to the time of appropriation, is admissible to aid the triers of fact in determining the compensation to which the owner is entitled for the appropriation of his property. Kansas City & Grandview Railway Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891, 84 A.L.R. 1477; State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654. There is no contention in this case by respondent that the land to which the contract of sale applied was not comparable to appellants’ land, or that the contract was not bona fide in all respects and entered into at arms length by a willing seller and purchaser.

Respondent asserts that the evidence was properly refused by reason of the rule in School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860. In that case, on the issue of the fair market value of the land taken by condemnation, the landowner offered in evidence a contract between him and another for the sale of a tract of land across the street from the land condemned. The contract was dated March 7, 1945, and the date for closing the transaction was June 7, 1945. After commenting that recent consummated sales of property in the neighborhood of the condemned property were competent on the issue of fair market value, this court further commented, “but we find no Missouri authority for the proposition that a sale contract, even though enforcible by specific performance, is competent,” and then concluded that even though there was “nothing to suggest that the sale contract * * * was not bona fide in all respects, * * * to permit such contracts to be offered * * * would open the door to contracts made in bad faith and with no intention of completion and consummation.” The evidence of the contract of sale was held to have been properly excluded.

We cannot agree with the total exclusionary rule of the Kelsey case. The tendency is to admit evidence which reasonably sheds light on the question of fair compensation for the taking of land by condemnation. ■ “Artificial rules of evidence which exclude from the jury matters which men consider in their everyday affairs hinder, rather than help, the arrival at a just result.” State ex rel. State Highway Commission v. Barron, Mo., 400 S.W.2d 33, 37. See also 30 C.J.S. Eminent Domain § 430. In the determination of the value of land reasonable men in their everyday business affairs would take into consideration, substantially to the same extent as a consummated sale of comparable property, the price provided for in a bona fide and binding contract of sale entered into ’by a willing purchaser and seller when the sale price reflects the present value of the land contracted to be sold. It is a common practice for a contract of sale of land to provide for a reasonable period of time for the completion of details relating to the transfer or for the correction of title defects, and in such circumstances the sale price provided in the contract reflects the sale value of the land so conveyed as of the time of the contract. After the trial court has satisfied itself that the contract of sale is bona fide and without collusion and fraud, and that the period between the time the contract is entered into and the sale is to be completed is not of such duration that the price agreed upon constitutes a speculation of a future value, we see no reason why evidence of the sale price in such a contract should automatically be excluded from consideration by the jury solely because the actual transfer of title has not yet occurred. See United States of America v. Certain Parcels of Land in the City of Philadelphia, 3 Cir., 144 F.2d 626, 155 A.L.R. 253. This does not mean, however, that all bona fide executory contracts for the sale of comparable land should be admitted into evidence. The landowner cannot show speculative future uses of his own land to enhance its value, nor can he show an estimate of what his property will be worth at a future day or in an altered condition. In re Armory Site in Kansas City, Mo., 282 S.W.2d 464; Brewer v. Blue Mountain Consolidated Water Co., 126 Pa.Super. 553, 191 A. 408. For the same reason the landowner should not be entitled to show, as bearing on the market value of his land at the time of the taking, the speculative value of a comparable piece of property at some future date.

Respondent has not urged on this appeal that the ruling of the trial court was proper for any reason other than that stated in the Kelsey case. However, Civil Rule 83.13(b), V.A.M.R., provides that no appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action. Even though we do not agree with the total exclusionary rule announced in the Kelsey case, we are compelled to conclude that in the circumstances shown by the offer of proof the trial court did not commit error against the appellant in refusing to admit evidence of the price provided for in the contract of sale.

The issue before the jury was the just compensation to which appellants were entitled for the taking of a portion of their property, and that was to be determined as of the time of the appropriation. KAMO Electric Cooperative, Inc., v. Baker, 365 Mo. 814, 287 S.W.2d 858. This just compensation consisted of the fair and reasonable market value in October 1963 of the land taken, and the consequential damages sustained by appellants to the remainder of their land by the taking of the part. KAMO Electric Cooperative, Inc., v. Baker, supra; City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; Union Electric Company v. Saale, Mo., 377 S.W.2d 427. Stated another way, it was the difference between the fair and reasonable market value of their entire tract of land immediately before and immediately after the taking. State ex rel. State Highway Commission v. Kendrick, Mo., 383 S.W.2d 740. Evidence of the sale price of other comparable land (when otherwise competent) is admissible because it tends to afford a basis for the determination by the triers of fact of the fair and reasonable market value of the land taken as of the time of the appropriation. State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654, 662. Therefore, in order to afford a basis for comparison the price paid for other comparable land should reasonably reflect the value of that land at the time of the appropriation of the land condemned. In this case, in April of 1965 the owners of the comparable land agreed that six years and five months later, or approximately eight years after the date of taking of appellants’ land, the fair market value of the land covered by the contract would then be $80,000. In view of the probabilities of inflation and the changing uses for land in the neighborhood, the parties to the contract were in April of 1965 speculating on the value of the land in October 1971. The present value of a right to purchase land six and one half years in the future does not necessarily reflect the fair and reasonable market value of the land at the time of the agreement, and without any more showing than the existence of the contract and the price to be paid, such evidence is not material. To permit the evidence offered in this case to be submitted to the jury on the issue of the market value of appellants’ land on the date of appropriation would inject such elements of speculation and conjecture as to confuse the issue and mislead the jury. For this reason, we conclude that the evidence of the price contracted to be paid in October 1971 for the comparable land was properly rejected.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court en Banc.

EAGER, J., concurs in separate concurring opinion filed.

STORCKMAN, C. J., and DONNELLY, J., concur in result in separate opinions filed.

HENLEY, J., concurs in result.

FINCH, J., dissents in separate opinion filed.

HOLMAN and SEILER, JJ., dissent and concur in separate dissenting opinion of FINCH, J.

CONCURRING OPINION

EAGER, Judge.

I concur, but I express the opinion that, in view of Commissioner Stockard’s opinion, the rule of total exclusion of contracts of sale announced in the case of School District of Clayton v. Kelsey, 355 Mo. 478,196 S.W.2d 860, should be expressly overruled. It is also my understanding that, by this present concurring opinion and the dissent of three other Judges it is now overruled.

OPINION CONCURRING IN RESULT

DONNELLY, Judge.

In School District of Clayton v. Kelsey, 355 Mo. 478, 484, 196 S.W.2d 860, 863, it was held that an unconsummated contract for the sale of neighboring property was not competent on market value because “to permit such contracts to be offered * * * would open the door to contracts made in bad faith and with no intention of completion and consummation.”

I believe this general rule of exclusion is sound and I would follow it in this case.

I concur in result.

OPINION CONCURRING IN RESULT

STORCKMAN, Chief Justice.

The majority opinion justifies the refusal to admit the contract of sale in evidence solely on this ground: “To permit the evidence offered in this case to be submitted to, the jury on the issue of the market value of appellants’ land on the date of appropriation would inject such elements of speculation and conjecture as to confuse the issue and mislead the jury.” I agree with this statement. For the same reason, evidence of a sale completed before the taking could be properly excluded. The extent of the trial judge’s discretion in this area is described in 32 C.J.S., Evidence § 593(3) c, p. 742, as follows: “No general rules can be laid down as to the degree of similarity required to exist between the properties, and as to the nearness in respect of time and distance, and these matters, and the reception of evidence of sales of other property generally, rest largely in the discretion of the trial judge. Thus the evidence may in such discretion be rejected, especially when other and better evidence can be or has been produced at the hearing.” This statement of the rule is supported by City of St. Louis v. Vasquez, Mo., 341 S.W.2d 389, and In re Armory Site in Kansas City, Mo., 282 S.W.2d 464. See also 29 A C.J.S., Eminent Domain § 273(10), pp. 1209-1211.

For this reason I say that the criticism of the holding in School District of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860, is entirely gratuitous and unnecessary. Even if the rule were otherwise than as stated in the Kelsey case, the trial judge in his discretion should be affirmed in excluding this evidence. I cannot agree with that part of the majority opinion which criticizes and disapproves the Kelsey case because what is said in that regard is obiter dictum and is likely to cause endless confusion. The time to reexamine the soundness of Kelsey is when it is squarely presented as the decisive factor in the ruling.

I agree with what is said in the concurring opinion of Judge Donnelly. The general rule of exclusion as stated in Kelsey appears to be sound. Furthermore, I believe it is the general policy to exclude evidence of sales made after the date of taking regardless of whether it is a completed sale or merely executory. There are sound reasons for doing so, — one of which is that the taking for public use may affect the value of comparable land in the vicinity, adversely as well as favorably. The cases relied on by Judge Finch in his dissenting opinion are all cases in which the completed sale was made a considerable time before the date of taking. Any change in value in such cases cannot be said to have been influenced by the use- — whether it be for a public utility or highway purposes. It is much easier to adjust the value of the land taken by working forward than to adjust by working backward from a sale made after the taking, whether it be based on a completed deed or an executory contract.

While sales of comparable land not too remote in point of time are generally admissible on the question of the value of the land being condemned, it is well recognized that discretion should be exercised by the court in preventing controversies arising on collateral matters and thus diverting the attention of the jury to minor issues. City of St. Louis v. Kisling, Mo., 318 S.W.2d 221, 226 [10]. New elements and collateral issues that would be involved in determining the value of comparable land under a contract of sale to be completed after the taking of the. land in question would be whether the contract of sale was valid and enforceable by -specific performance, whether the contract was made in good faith and whether the sale price of the land under contract was influenced either adversely or favorably by the public use for which the land in question was taken. The wisdom of the Kelsey exclusionary rule is demonstrated by the statement in the dissenting opinion of Judge Finch that, “We do not know what motivated the different format for deferring the time and method of payment.” The explanation given in the dissenting opinion apparently is not based on anything in evidence.

I can see no need for expanding the scope of evidence of value in condemnation cases to include these collateral issues and additional speculative elements. The cases demonstrate that the evidence of expert witnesses and of sales completed before the taking of the land in question is generally available and sufficient to give the jury some reliable standards on which to assess the damages.

Since I do not agree with the treatment accorded the Kelsey case in the majority opinion, I concur in the result only.

DISSENTING OPINION

FINCH, Judge.

I respectfully dissent herein.

The majority opinion concludes that the sale price which was involved in the defendants’ offer of proof was based on speculation of the parties as to what the property would be worth in October 1971 because payment of the $80,000 is postponed until October 1971 and thereafter and the deed is to be delivered in October 1971. I disagree. This was a currently executed, binding, written contract to sell and buy, respectively. There is nothing to indicate that the parties are speculating as to a future value. Rather, they simply provided for a deferred method of payment and closing which is a little unusual. T f the deed to the property had been delivered at the time of the contract, with a note and deed of trust for $80,000, payable $20,000 on October 1, 1971, and the remainder thereafter, with interest at six per cent, there would have been no question but that this was a current sale, and evidence of the sale price would have been admissible in this case. Counsel for the Highway Commission so conceded in oral argument. Simple arithmetic shows that interest at six per cent on $80,000 is $4800 per year, or the equivalent of the $400 per month which MFA was to pay until October of 1971 under this contract of purchase. We do not know what motivated the different format for deferring the time and method of payment. It may have been a desire by MFA to defer the immediate accrual of the total purchase price, but, in my view, that is immaterial. It still is a currently negotiated sales price.

Another method which might have been used would have been a contract for a deed with the deed to be held in escrow. If such a contract had called for payments of $400 per month until October 1, 1971, with a payment of $20,000 at that time and the remaining $60,000 subsequently, and with a deed to be delivered when the $20,000 was paid, can there be any question but that this would have been a present sale, with the evidence of the sale price admissible herein ?

The purpose of condemnation trials is to determine reasonable compensation for that which the condemnor is taking. Value of the property taken is not exact but must be determined by the jury from all the evidence submitted to it. The court seeks to give the jury the benefit of all evidence which will assist it in performing that task. The tendency is to admit all evidence which reasonably sheds light on this question of fair compensation. As stated in State ex rel. State Highway Commission v. Barron, Mo., 400 S.W.2d 33, 37, “Artificial rules of evidence which exclude from the jury matters which men consider in their everyday affairs hinder, rather than help, the arrival at a just result.”

The rule is further elaborated in State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654, 662, as follows: “The general rule is that evidence of the sale price of property similarly located to that involved, and made in the neighborhood reasonably near the time of taking, is admissible to aid the triers of fact in determining the compensation to which the owner is entitled for the taking of the property.” Subsequently, in the same paragraph, the court states further: “Unless the distance in location, or the difference in time of sale from the time of taking, or the lack of similarity be so great as to make the evidence, as a matter of law, not material or relevant, such differences go to the weight of the evidence rather than to its admissibility.”

When these rules are applied, how can it be said that the evidence involved in the offer of proof herein was inadmissible? Certainly, individuals or companies considering the purchase of the tract condemned would consider this MFA sale in determining what, in their judgment, would be a proper sale price. They would not be misled by the method of payment and would accord weight to the transaction as their judgment would dictate, just as a jury weighs the evidence submitted to it.

The majority opinion says that admission of the evidence of this MFA transaction “would inject such elements of speculation and conjecture as to confuse the issue and mislead the jury.” I find it most difficult to square this conclusion with some of our previously decided cases. As the old saying goes, “Let’s look at the record.”

In the recent banc case of Land Clearance Authority v. Doerenhoefer, Mo., 404 S.W.2d 385, this court dealt with a condemnation in the City of St. Louis and held admissible what the owner had paid for the condemned property when he acquired it nine years before the time of taking. This was held to be true even though the court recognized that during the nine-year period the Veterans Bridge across the Mississippi River and the Third Street Highway were opened, construction of the riverfront memorial project was begun, construction of the Gateway Arch was started, the old Courthouse at Fourth and Market Streets was made a national monument, and various other buildings were constructed or renovated in the neighborhood which upgraded it. The majority opinion states, 1. c. 386: “The purchase price was relevant evidence in helping the jury to arrive at its verdict.” Subsequently, in the opinion the court says: “The jury could reasonably have concluded that over the nine-year period since the purchase, and in view of the improvements made by Esses and the upgrading of the neighborhood, the fair market value of the property had increased by the amount of $15,000.” The spread of nine years and the material changes in the neighborhood and in the property itself did not cause the majority to hold the evidence inadmissible. The fact that the transaction occurred nine years before and under conditions recognized to be different did not cause the exclusion of the evidence as injecting “elements of speculation and conjecture” which would confuse the jury. Rather, these were things which the court recognized would go to the weight of the evidence in its consideration by the jury.

In State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654, this court held admissible evidence of the sale of comparable land which had occurred approximately five years before the time of taking in condemnation. Again, the court recognized that the lapse of time would go to the weight of the testimony and that the parties had an opportunity to, and did undertake to so demonstrate to the jury.

In State ex rel. State Highway Commission v. Johnson, Mo., 287 S.W.2d 835, this court held admissible evidence as to what the owner had paid for the property being condemned when he purchased it twenty-five years before, and in City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, the court held admissible evidence as to value nine years before the time of taking, even though the great depression had intervened between the purchase and the time of taking.

It will be observed that in some of these cases the span of time between the condemnation and the date as of which value was offered was greater than the span of time between the MFA transaction and its date of consummation in October 1971, but in each of these reported cases the court admitted the evidence, leaving its weight and value to the jury.

Consider also the expert opinion evidence which was admitted in this case. Evidence on behalf of the landowner as to value of the property taken ranged from a high of $99,-086 down to about $50,000. Evidence on behalf of the State ranged from a low of $1526 to a high of $9100. The high estimate of damages was sixty-four times the amount of the low estimate of damages. That evidence was admitted as sufficiently reliable to go to the jury to consider and weigh. It is arguable that this tremendous spread would confuse and mislead the jury and, in the language of the majority opinion, perhaps inject “elements of speculation and conj ecture,” but under our rules of evidence we admit it for the jury to consider and weigh. If that is proper, how can we possibly say that evidence as to an actually executed, arm’s length contract of sale between responsible parties as to a comparable nearby tract is inadmissible because it might confuse or mislead the jury simply because its timing as to method of payment was different? At least, this transaction represented what actual owners and a business firm purchaser contracted and agreed to pay in real money therefor, whereas the opinion evidence is not backed by a nickel of anyone’s money and represents expert opinion and nothing more. If we admit the opinion evidence which was received in this case on the theory it is sufficiently reliable for the jury to consider, but exclude evidence of the MFA contract of purchase and sale on the basis that it injects “such elements of speculation and conjecture as to confuse the issue and mislead the jury,” it seems to me that we strain at the gnat and swallow the camel.

The majority opinion properly criticizes the rule, announced in School District of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860, that evidence of the sale price in a contract of sale which was executory rather than finally consummated was inadmissible. The majority opinion refused to sustain the action of the trial court on the basis of the rule in that case. Instead, as above indicated, it held the evidence inadmissible on the basis that the sale price involved was a speculative one as of a date in the future. The majority opinion does not specifically state that the Kelsey case is overruled on that point. I would so state because, in my judgment, that rule is wrong, and I would so state in order to avoid any confusion about the matter in the future.

It should be noted that a majority of the court does consider that the total exclusionary rule of Kelsey is wrong. The opinion written in Division by Commissioner Stockard and promulgated herein as the court en banc opinion criticizes the rule and would admit evidence of the contract price when the trial court has satisfied itself on such issues as comparability of the property, bona fides of the contract and proximity in time of the sale. Judge Eager concurs in Stockard’s opinion and in what it says about Kelsey and has stated in a concurring opinion that it should be overruled. Judges Holman, Seiler and the writer are of the opinion that the Kelsey rule is wrong and should be expressly overruled.


source: Caselaw Access Project

license: Public Domain

text:
    Alma BOLAND, Plaintiff-Appellant, v. Ferenc JANDO, Defendant-Respondent.
    No. 52364.
    Supreme Court of Missouri, Division No. 1.
    May 8, 1967.

      Sherman Landau, St. Louis, for appellant.
    Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

This suit was filed by Alma Boland against Ferenc Jando to recover damages in the sum of $22,500 for loss of consortium alleged to have resulted from personal injuries to her husband. The husband, John A. Boland, filed a suit to recover damages alleged to have been sustained as a result of a collision of Jando’s car with Boland’s car. That case resulted in a jury verdict and judgment in Boland’s favor in the sum of $500 for personal injuries and $200 for property damage. John A. Boland had asked for $35,000. Boland appealed to this Court on the theory that the verdict was grossly inadequate. The judgment in that case was affirmed. See Boland v. Jando, Mo., 395 S.W.2d 206. In the case now before us, there was a jury verdict and judgment in favor of the defendant. A motion for new trial was overruled and plaintiff appealed.

The questions submitted to the jury were as follows:

First, was John A. Boland, plaintiff’s husband, injured as a result of the negligence of defendant Jando?

Second, were the injuries of Boland such as to justify a verdict for plaintiff on the theory of loss of consortium?

Third, was Boland guilty of contributory negligence so as to defeat plaintiff’s claim?

We find that the evidence in the record was sufficient to submit each of the above questions of fact to a jury for determination. The verdict for the defendant may have been determined on the ground that Boland was guilty of negligence contributing to his injuries, or that Boland’s injuries were of such a nature that plaintiff was not damaged thereby. The evidence as to Jando’s negligence, Boland’s injuries, and contributory negligence on the part of Boland was substantially the same as it was in the case of Boland v. Jando supra, 395 S.W.2d 206. For a full statement of the evidence, we refer the reader to the opinion in that case.

A brief statement with reference to the collision involved in this lawsuit will be sufficient. Plaintiff’s evidence was that on March 12, 1964, John A. Boland was driving his car south on Grand Avenue in St. Louis, Missouri. When he stopped at a stop sign at Lierman Avenue, his car was struck at the rear by a car operated by Jando. Defendant Jando introduced evidence that Boland suddenly and without warning slowed his car to a stop and that Jando was unable to stop in time to avert a collision; that at the time of the collision, Jando’s car was traveling at a speed of not more than six or seven miles per hour.

We shall relate other evidence in the course of this opinion when considering the points relied on for a reversal of the judgment. The points are seven in number. We shall dispose of them in the order the alleged error occurred in the course of the trial.

A point is made that the trial court erred in denying plaintiff’s counsel the right to inquire of the jurors on voir dire whether any of them was employed by or was a stockholder in any insurance company or had any connection with or was an agent for a casualty insurance company. The record shows that plaintiff’s counsel submitted to the court a list of questions he desired to ask of the jurors. Defendant’s ■ counsel objected and stated that “I think the only question Mr. Landau should be pefmitted to ask this jury is whether or not anyone of the jurors or any member of their immediate family works for or has a financial interest in the Hartford Accident and Indemnity Company.”

The list of questions submitted was as follows:

“ ‘1. Are any of you employed by, or stockholders in, an insurance company which is engaged in the casualty insurance business?

‘2. Are any of you engaged in the general insurance agency business or are any of you an agent for a casualty insurance company ?

‘3. Have any of you ever worked as a claims investigator or insurance adjuster?

‘4. Have any of you read any articles or advertising in periodical publications which tend to indicate a relationship between the amounts of personal verdicts and increases in insurance premiums?

‘5. (If any of the jurors answer the next preceding question in the affirmative.)

Notwithstanding any opinion which you might have formed regarding the subject of the advertising or articles just mentioned, would you be able to decide the question of liability and damages in this case solely on the evidence and the law without being influenced by such an opinion?’ ”

The trial court made the following ruling:

“THE COURT: I will permit the asking of the question that has been stated in the record as to whether or not anyone on this panel works for or has financial interest in the Hartford Insurance Company. I will permit you to ask Question No. 3 which is set out as follows:

“ ‘Have any of you ever worked as a claims investigator or an insurance adjuster ?’

“I think you are entitled to know that. However, since our courts have been, I would say, strict on this matter, I don’t want you to ask this question right after you ask the one about the Hartford Accident Insurance Company.

“MR. LANDAU: I don’t intend to ask one about the Hartford Accident.

“THE COURT: I will permit you to ask No. 3, as I have indicated, because I think it does make a difference if a man has worked as a claims investigator for anybody, insurance company, railroad company or anybody else.”

It may be noted that Mr. Landau, in effect, proposed to the trial court that he wished to ask all of the questions submitted and if the court did not agree, then no questions would be asked with reference to the subject of insurance.

We are of the opinion that the trial court did not unduly restrict the ques-. tioning. The court offered counsel the opportunity to ask certain questions and counsel did not accept the offer. The scope of such inquiry rests to some extent within the discretion of the trial court. Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, l.c. 807(7-10); Carter v. Rock Island Bus Lines, 345 Mo. 1170, 139 S.W.2d 458, l.c. 462 (2-6) ; Faught v. St. Louis-San Francisco Ry. Co., Mo., 325 S.W.2d 776, l.c. 779 (1, 2); 50 C.J.S. Juries § 275(2), p. 1046. Plaintiff cited no Missouri case to support his contention. He did cite a number of federal cases. The ruling of the trial court was within the rule followed in this State as evidenced by the authorities cited supra.

Plaintiff offered to introduce in evidence a repair bill which had been paid for the repair of the car involved in the collision. Defendant objected on a number of grounds. The trial court sustained the objection and stated, “I am going to exclude any testimony on this unless you have a mechanic come in who can descibe the extent of damage to the car. That would show the amount of violence. This hill doesn’t go to prove or disprove any amount of violence, in the Court’s opinion.”

The ruling of the trial court was correct. The amount of the repair bill would not have been any evidence of the violence of the collision.

The trial court permitted defendant, over plaintiff’s objection, to introduce certain exhibits, the same being photographs of defendant’s car. It was admitted that they were taken after certain repairs had been made. Plaintiff says the exhibits should not have been admitted because they did not reflect the condition of the car before the repairs were made. The only purpose of the evidence was to show that the damage to the car had been slight. On direct, as well as on cross-examination, Jando explained the damage in detail using the exhibits in doing so. The evidence of Jando in connection with the photographs fully described the damages to the car. It seems to us the use of the exhibits aided the jury in determining the extent of the damage. Plaintiff cited the case of Gignoux v. St. Louis Public Service Co., Mo.App., 180 S.W.2d 784, 1.c. 786(2, 3). In that case, the plaintiff was injured when she alighted from a street car. The negligence relied on was that plaintiff was required to alight at an unsafe place causing her to fall. A photograph of the alleged unsafe place, taken after repairs had been made, was admitted in evidence. This was held to be error. The St. Louis Court of Appeals stated the reason for holding that the admission was error as follows: “This testimony did not put before the jury facts from which they could gain an intelligent idea of the conditions at the time of the accident, but did get before the jury evidence of subsequent change in condition, which might have been regarded by them as an admission by the defendant of its negligence.” 180 S.W.2d 786(5). See also 32 C.J.S. Evidence § 709, p. 986. It is obvious that the Gignoux case is not in point.

Error was assigned to the giving of instruction No. 4 covering the alleged contributory negligence of Boland. The particular complaint is that defendant, in the answer, alleged John A. Boland had made a “sudden and abrupt stop” but the instruction submitted the question as “John Boland suddenly slowed his automobile.” Plaintiff says that the negligence submitted was not the negligence pleaded. Plaintiff relies on Banta v. Union Pacific R. Co., 362 Mo. 421, 242 S.W.2d 34, 1.c. 42(10-12). It may be noted that in the Banta case the negligence pleaded was that the defendant railroad had permitted a steam line of an engine or tender to become defective resulting in the escape of steam which froze on a ladder making it unsafe. The instruction submitting the case to a jury omitted the element of a defective steam line and authorized a verdict for plaintiff if the jury found that the ladder was coated with ice. This Court held the instruction omitted an essential element of recovery. The instruction in the case now before us did not omit any essential element. If Mr. Boland suddenly slowed his car without a warning, a jury could find that he was guilty of negligence. So, also, could a jury find negligence if a sudden stop were made without warning. It may be said that a sudden stop is usually preceded by a sudden slowing. We are of the opinion that the instruction was not misleading and that plaintiff’s rights were not prejudiced. Vinson v. East Texas Motor Freight Lines, 280 S.W.2d 124, 1.c. 132(7); Stepp v. Rainwater, Mo.App., 373 S.W.2d 162, 1.c. 166(6).

It is claimed that the trial court erred in overruling plaintiff’s objection to portions of the argument of defendant’s counsel to the jury. The record does not disclose any objection to defendant’s argument. In fact, plaintiff’s counsel in his argument so stated. Note what he said:

“MR. LANDAU: I didn’t interrupt Mr. Kortenhof at any time during his argument to the jury, Your Honor.”

This comment was made when Mr. Kor-tenhof objected to a portion of Mr. Landau’s argument. Plaintiff’s counsel having failed to make any objection, there was no ruling of the trial court for us to review.

In another assignment of error, plaintiff says the trial court erred in sustaining defendant’s objection to the argument of plaintiff’s counsel. The argument objected to was as follows:

“MR. LANDAU: * * * I have a few further thoughts. Mr. Kortenhof has complained about the fact that they have had to come into court to fight a claim that is not their fault. This claim should have been settled; this claim should never have been presented in court. It should have been settled a long time ago.”

At this point, an objection was made which the court sustained. Plaintiff says, in the Points and Authorities of the brief, that the above argument was “in reply to defendant’s rhetorical question, ‘How many lawsuits are going to be filed ? There won’t be enough courtrooms in this courthouse or enough juries to take care of it if that goes on.’ ” Plaintiff did not object to defendant’s “rhetorical question” made during the argument.

The record shows that plaintiff’s counsel did in fact answer the argument of defendant. Plaintiff’s argument answering defendant on this subject covered a number of pages and he fully explained that plaintiff had a separate cause of action from that of the husband. The trial court properly sustained the objection to the argument that the claim should have been settled. Nichols v. Blake, 395 S.W.2d 136, l.c. 142 (10, 11); Starnes v. St. Joseph Railway Light, Heat & Power Co., 331 Mo. 44, 52 S.W.2d 852, l.c. 854, 855(5).

The last assignment of error to be considered is plaintiff’s claim that the trial court erred in sustaining an objection to plaintiff’s reference, during the argument, to the hospital record upon the ground that the entire record had not been read in evidence. Counsel says the court directed him not to read the entire record, specifically admonishing counsel to omit portions thereof. The record does not support this contention. At the time Mr. Landau offered to read the hospital record to the jury, the following occurred:

“MR. LANDAU: Your Honor, we ask leave to read into evidence the hospital record of Barnes Hospital.

“MR. KORTENHOF: No objection.

“(Said hospital record was marked for identification by the reporter as Plaintiff’s Exhibit 11.)

“MR. KORTENHOF: Would it save time to read it from the transcript?

“MR. LANDAU: I think we can move along just as well by selecting portions that are significant, if the Court please.”

Mr. Landau then read from the hospital record which covered five pages of the transcript, at which point the following occurred :

“MR. KORTENHOF: This was read already ; it will be the same thing; just repetition.

“MR. LANDAU: This is the encephalo-graphic report.

“MR. KORTENHOF: We have already heard about the shock from the transformer about four or five times.

“THE COURT: Let’s proceed, gentlemen. There is bound to be some duplication. Try to omit some of it.

“MR. LANDAU: There is some duplication apparently. They put it in one place and repeat it in another.”

The only admonition made by the court pertained to the matter of duplication. We find no ruling which prevented Mr. Landau from reading all of the hospital report. If any material portion was omitted, it was voluntary on the part of Mr. Landau.

There was evidence showing that four doctors had treated John A. Boland for his alleged injuries. Not one was called as a witness. Defendant’s counsel called this fact to the attention of the jury and asked why they were not called. In reply, plaintiff’s counsel stated during the closing argument, “There are two reasons and both of them good ones.” Plaintiff’s counsel then stated, “Their (doctors) findings are contained in this hospital record we brought in.” This was objected to by the defendant. The court then ruled as follows:

“Just a minute. The objection will be sustained because all of the hospital record has not been read. If there was any other part in there by these doctors, Mr. Landau, you would not be permitted to read it. They would have to come in. You know that. So I will sustain the objection.” Plaintiff’s counsel then attempted to note how much it would cost to get the doctors to testify. Objection by defendant was sustained by the court and plaintiff’s counsel’s statement was ordered stricken from the record.

This Court, in the case of Richardson v. Wendel, 401 S.W.2d 455, l.c. 459, 4€0(10), ruled on a similar situation. It was there ruled that even though a hospital record was in evidence, the defendant’s counsel had the right to call to the attention of the jury the fact that doctors who treated plaintiff had not been called.

The record shows that Mr. Landau explained to the jury the extent of Mr. Bo-land’s injuries as shown by the hospital records. At one point, when defendant objected, the court ruled as follows:

“THE COURT: Ladies and Gentlemen, you have to be guided by what you recall as to what the hospital record says; not what these lawyers say. You understand that, I am sure.”

On another occasion, defendant objected to Mr. Landau’s reading from the hospital record and the court overruled the objection. We find no error in the court’s ruling on the subject of the hospital records.

The ruling of the trial court in not permitting counsel to inform the jury about the expense of having doctors present to testify was not prejudicial to plaintiff. Mr. Landau stated to the jury, “Now, just think of what Boland would have to pay out if he had to pay $175 to bring — ” At this point, objection was made by the defendant and the trial court sustained the objection. Defendant in this case called a doctor as an expert witness. The doctor was asked what he charged for his time as a witness and he answered that the charge was $175. It would not necessarily follow that any of plaintiff’s doctors would have charged $175 to testify on his behalf. The court was justified in sustaining the objection.

No prejudicial error having been found, the judgment of the trial court is hereby affirmed.

PER CURIAM:

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

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommie TATUM, Defendant-Appellant.
    No. 51917.
    Supreme Court of Missouri, Division No. 1.
    May 8, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, James M. Byrne, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Emanuel Williams, St. Louis, for appellant.
   WELBORN, Commissioner.

Tommie Tatum appeals from a judgment and sentence of three years’ imprisonment on a charge of manslaughter by culpable negligence.

The appellant, Tommie Tatum, and the victim of the homicide, Hollis Curtis, came to the Casino Club in Pulaski County at around 3:00 or 3:30 in the morning of December 19, 1964. There they met Berniece Phiffer and Barbara Evans. The four went from the Casino Club to the Green Hills Social Club, also in Pulaski County. They arrived at the Green Hills Club at around 4:00 or 4:30 and sat at a table. During the thirty minutes to one hour at the Green Hills Club, all four were friendly. At around 5:00 A.M., Tatum produced a Smith and Wesson .357 Magnum and held it on the table, pointed, according to Ber-niece Phiffer, who testified on behalf of the state, in the direction of Curtis. Mrs. Phiffer stated: “[0]nly thing I know, when he put the gun on the table * * * it went off so fast, and I didn’t know what happened.” The bullet struck Curtis in the upper part of his body, causing his death.

The only other witness for the state, a highway patrolman who was called to the scene, testified that the appellant admitted ownership of the weapon found at the Green Hills Social Club. He stated that appellant told him “that he placed the gun on the table, on the edge of the table, and had it pointed towards Mr. Curtis, that something disturbed his arm and the gun was discharged and the bullet struck Mr. Curtis.” The trooper testified that the gun could be discharged in two ways: First, by pulling the trigger, thereby cocking the gun and firing it at the same time; Second, by pulling the hammer back with the thumb and having the weapon cocked until the trigger was pulled. He stated that the first method of firing requires much more effort. He also said that appellant told him that he had cocked the gun.

Barbara Evans, testifying for the defendant, stated that appellant and Curtis were talking and laughing when the gun was produced and that Curtis picked up her pocketbook and struck the gun, which discharged. The appellant testified that the gun went off when Curtis hit it with the purse. He stated that the gun was pointed at no one when he removed it from his trousers and placed it on the table. He said that he didn’t remember whether or not he cocked the weapon.

A jury returned a verdict of guilt under an information charging manslaughter by culpable negligence and fixed the punishment at three years’ imprisonment. Appellant’s retained counsel filed a motion for new trial and notice of appeal. However, no brief has been filed on behalf of appellant and we, therefore, look to the matters presented in the motion for new trial.

The objection that the prosecution was upon an “Affidavit or Complaint in Felony Cases” is without merit. An information was duly filed, charging the offense and appellant was tried on the information, not the preliminary complaint.

The state’s evidence, set out above, would support a finding of guilt on the offense charged. However, the principal instruction on which the case was submitted is obviously erroneous. The first paragraph of that instruction read as follows:

“The Court instructs the jury that criminal negligence, within the meaning of the law, is the omission on the part of a person to do some act under given circumstances which an ordinarily careful or prudent person would do under like circumstances, or the doing of some act, under given circumstances, which an ordinarily careful, prudent person under like circumstances would not do, and by reason of which omission or acts another person is endangered in life or bodily safety.”

The second paragraph hypothesized the factual situation and authorized a finding of guilt if the defendant “carelessly, with criminal negligence” allowed the pistol to discharge, which pointed in the general direction of the deceased. (The statute defining “Manslaughter” (§ 559.070, RSMo 1959, V.A.M.S.) uses the term “culpable negligence.” Although “criminal negligence” and “culpable negligence” are sv-nonymous, 65 C.J.S. Negligence § 1(13), p. 459, use of the statutory terminology would avoid any question.)

The state defends the instruction on the basis of the approval of practically identical instructions in State v. Coulter, Mo.Sup., 204 S.W. 5, and State v. Beckham, 306 Mo. 566, 267 S.W. 817, 37 A.L.R. 1094.

In State v. Millin, 318 Mo. 553, 300 S.W. 694, 696, the court, with specific reference to a definition of culpable negligence found in State v. Weisman, Mo., 256 S.W. 740, identical with that found in Coulter and Beckham, supra, concluded that the definition there found was of “mere negligence, such as would be actionable in a civil suit.” The court stated that a proper definition of culpable negligence should include “the element of reckless disregard of the consequences of the act or the omission from which the criminal intent may properly be inferred.” 300 S.W. 697. In Mil-lin, the court noted that the instruction approved in Weisman had been found acceptable in Coulter and Beckham. 300 S.W. 696.

The subsequent course of our law on this subject is traced in State v. Studebaker, 334 Mo. 471, 66 S.W.2d 877, 880. State v. Baublits, 324 Mo. 1199, 27 S.W.2d 16, held erroneous an instruction defining culpable negligence in Weisman language. State v. Melton, 326 Mo. 962, 33 S.W.2d 894, did likewise and, for the first time, specifically overruled Weisman. 33 S.W.2d 895. Obviously, Coulter and Beckham are in the same situation as Weisman, insofar as they approve the definition of culpable negligence in Weisman terms. They, likewise, should no longer be followed. State v. Mil-lin, State v. Baublits and State v. Melton, supra, all hold the definition here used erroneous.

There was also error in the trial court’s failure to submit appellant’s instruction calling for an acquittal if the jury found beyond a reasonable doubt that the deceased struck the revolver and caused it to discharge. Appellant’s testimony supported- this submission. Although an accidental homicide is not excusable under § 559.050, RSMo 1959, V.A.M.S., if the result of a culpably negligent act (State v. Grant, Mo.Sup., 372 S.W.2d 9, 14; State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 10 [21] ; State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84, 93 [19-22]), appellant’s testimony that he did not point the gun at the deceased would warrant a finding, if believed, that the act of the deceased, not a culpably negligent act of the appellant, was the proximate cause of the gun’s firing.

Reversed and remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: WADDILL, Commissioner.

text:
    Hubert F. WHITE, etc., Appellant, v. COMMON COUNCIL OF the CITY OF MIDDLESBORO, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Hubert F. White, City.Atty., Middles-boro, for appellant.
    Henry M. Reed, III, Skaggs & Hays, Louisville, for appellees.
   WADDILL, Commissioner.

In this declaratory judgment action the trial court upheld the validity of an ordinance, lease and related instruments of the City of Middlesboro effectuating a plan for the issuance of revenue bonds by a holding company which will acquire off-street parking facilities and a fire truck and lease them to the city. The bonds, in the sum of $500,000, are to be redeemed by a pledge of the city’s parking meter revenue.

There is specific statutory authority for the city to acquire off-street parking (KRS 82.050) and fire apparatus (KRS 85.190). Hence, we need consider only the constitutional questions inherent in this case which are: Whether the proposed plan of the city violates Section 157 of the Kentucky Constitution; whether the city has unconstitutionally surrendered its police power, and whether that part of the city’s plan which creates a holding company to issue the bonds and pledges certain property as security is valid.

The plan set up in the several instruments obligates the City of Middlesboro to pay for a period of twenty-five years an annual rental out of the revenue it receives from its parking meters to fund the revenue bonds. While the plan specifies that the city is not required to renew the lease of the parking facilities, the city is required to redeem the bonds from the parking meter revenue even if the lease is not renewed. We have previously held that the revenue from parking meters is not tax revenue and may be pledged for the payment of bonds such as these. Skidmore v. City of Elizabethtown, Ky., 291 S.W.2d 3.

As we interpret the ordinance and implementing instruments these bonds are not general obligation bonds since only the proceeds from the parking meters will be pledged to pay them. We observe that the city will become the owner of the involved property upon their redemption. In these circumstances we find no violation of Section 157 of our State Constitution. Skidmore v. City of Elizabethtown, supra; Perkins v. City of Frankfort, Ky., 276 S.W.2d 449.

By the instruments in question the city agrees to maintain and insure the parking facilities and to fix the parking meter rates so as to pay the principal and interest on the outstanding bonds each year. Except as to the setting of minimum parking meter rates the city is not restricted in the exercise of its police powers. We discern no unconstitutional surrender of the city’s police powers. Skidmore v. City •of Elizabethtown, supra.

The use of a holding company such as envisioned in the city’s plan has been approved. See Baker v. City of Lexington, Ky., 273 S.W.2d 34. Moreover, the holding plan merely does indirectly that which the city could do directly. Cf. Skidmore v. City of Elizabethtown, supra. Under the plan the holding company will purchase the real estate on which the off-street parking facilities are to be constructed. This property will be mortgaged to secure the revenue bonds. In Baker v. City of Lexington, Ky., supra, a city-owned park was mortgaged to finance a swimming pool to be constructed therein. We observed the possibility of loss was very remote. Our approval of that plan is dispositive of the one proposed by the City of Middlesboro.

The judgment is affirmed.

All concur.


author: HILL, Judge. MONTGOMERY, Judge

text:
    STANDARD OIL COMPANY, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    Rehearing Denied June 2, 1967.

      Amos H. Eblen, Lexington, O. Grant Bruton, Charles G. Middleton, Jr., Louisville, for appellant.
    Robert Matthews, Atty. Gen., H. C. Smith, Special Asst. Atty. Gen., Frankfort, W. O. Gilbreath, Lexington, for appellee.
   HILL, Judge.

The landowner, appellant herein, appeals from a jury verdict and judgment for $26,-583 in a highway condemnation action filed by appellee to condemn the entire lot and improvements of a service station at the intersection of Fourth Street and Georgetown Road in the city of Lexington.

The commissioners appointed by the county court allowed appellant $40,000. Both parties filed exceptions to the report of the commissioners.

The amount of the verdict is within the range of the testimony. Appellant’s witnesses gave their estimates of value of the property ranging from a low of $35,000 to a high of $45,000; while appellee’s two witnesses fixed the value at $21,200 and $22,500.

We are asked to reverse the judgment on the sole ground the trial court refused to allow appellant to prove value by use of a formula of the gasoline industry under which dollars of land value are attributed to each gallon of gasoline sold per month at the site. The court allowed appellant to prove the gallons sold but declined to allow the dollar value to be placed thereon. The evidence for appellant showed that in the year-1955 the station sold 97,864 gallons of gasoline and showed a consistent increase until the last twelve months of its operation when it sold 212,805 gallons, or an average of 17,734 gallons per month. Appellant offered to and did prove by avowal that the industry used and recognized, for the purpose of determining the market value, a standard formula of $2.50 to $4 per gallon per month (i. e. a station selling an average of 17,000 gallons per month is worth a minimum of $2.50 multiplied by 17,000 or $42,500). To use the maximum value of $4, the market value under this formula amounts to $68,000. Apparently, the trial court relied on Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963). But nothing is said in Sherrod that prohibits a property owner from showing the reasonable rental-producing qualities of property or its production, whether it is farm land, a parking lot, or a milch cow. Income-producing quality of real estate in condemnation cases is not to be confused with loss of profits where good or bad management may play an important role.

A case with a factual situation practically identical with the case at bar is that of our neighbor state of Missouri in St. Louis Housing Authority v. Bainter, Mo., 297 S.W.2d 529 (1957). Inasmuch as Bainter also discussed profits in addition to the standard or formula with which we are concerned here, we quote at length therefrom (p. 534) :

“No one questions the general rule stated by Lewis in his work on Eminent Domain (Vol. 2, 3rd Ed., Sec. 727), as follows: ‘While it is proper to show how the property is used, it is incompetent to go into the profits of the business carried on upon the property. No damages can be allowed for injury to business. The reason is that the constitution and the statutes, as ordinarily worded, require only that just compensation shall be made for the property taken.’ ”
“Nor does respondent question the statement quoted in Accomac Realty Co. v. City of St. Louis, 347 Mo. 1224, 152 S.W.2d 100, 102, as follows: ‘With remarkable unanimity the American jurisdictions hold that evidence of profits derived from a business conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value of the property in condemnation proceedings.’ ”

In Bainter, the court permitted evidence of gallonage and the standard, recognized value thereof as we see from the following excerpt from page 535 of-the opinion:

“The evidence offered as to the custom and practice in the business in using the formulas mentioned as a basis for determining the value and the rental value of such stations and the further testimony as to the gallonage sold on the premises and the value and rental value thereof was properly admitted. The jury was entitled to consider all of such evidence in determining the fair market value of the premises in question. While no specific authority is cited, and we have found none, the application of general rules would indicate that evidence of gallonage of gasoline sold on the premises is properly admitted for consideration by the jury on the issue of rental value and fair market value of the premises condemned where, by accepted standards and criteria in the trade or business, rentals and values of such property are based thereon.”

We conclude appellant was entitled to prove the standard, recognized, and accepted (by the gasoline industry) formula for arriving at the market value of service stations and to prove the price used in such formula.

The judgment is reversed with directions to grant appellant a new trial consistent with this opinion.

MONTGOMERY, J., dissents.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent from the majority opinion because it permits the introduction of an artificial standard by which to determine the value of service station property, in violation of principles well established in many cases concerning varying types of property. See City of Newport Municipal Housing Commission v. Turner Advertising, Inc., Ky., 334 S.W.2d 767; Commonwealth, Department of Highways v. Smith, Ky., 358 S.W.2d 487; Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; Commonwealth, Department of Highways v. Eubank, Ky., 369 S.W.2d 15; Robinette v. Commonwealth, Department of Highways, Ky., 380 S.W.2d 78.

There are too many variables in determining the value of a service station to apply an artificial standard of $2.50-$4.00 per gallon of gasoline pumped per month. This standard does not refer to the profit made from pumping a gallon of gasoline or rental based thereon. The number of gallons pumped at a station can be attributed to many extraneous factors, such as management, hours of operation, whether the gasoline is sold at cut-rate prices, whether trading stamps, glassware, chances on prizes, etc., are given, and many others. A combination of these factors could well cause a high number of gallons to be pumped and at the same time cause the property to be operated at a loss, which necessarily would enter into the question of whether or not the property was valuable.

The age of the station improvements are pertinent. The improvements here were twenty-seven years old. Is the same artificial yardstick to be applied to old and new stations alike?

The very yardstick itself indicates its unreliability: there is a 60% variance between the $2.50 and the $4.00 limits of the yardstick. When is the $2.50 yardstick to be applied and when is the $4.00 yardstick to be applied? The court has enough woe in condemnation cases without adding this one.

For these reasons I respectfully dissent.


author: MONTGOMERY, Judge.

text:
    SOUTHEASTERN DISPLAYS, INC., Appellant, v. Henry WARD, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Rehearing Denied June 2, 1967.

      Bruce R. Hamilton, LaGrange, for appellant.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Department of Highways, Frankfort, Marshall B. Wood-son, Jr., Sp. Counsel for Department of Highways, Louisville, for appellees.
   MONTGOMERY, Judge.

Southeastern Displays, Inc., appeals from a judgment requiring it to remove a billboard sign. The judgment was in favor of Henry Ward and W. F. Knarr in their official capacities as Commissioner of Highways and District Engineer, respectively, of the Kentucky Department of Highways. Appellant contends that the Commonwealth of Kentucky has no authority to regulate a billboard sign in a city on property which has been zoned as industrial or commercial. It also contends that the Commonwealth cannot adopt regulations more prohibitive than the federal controls, that the regulations adopted are too vague and exceed the authority granted by statute, and that the sign reasonably complies with the Department of Highways regulations.

Appellant is engaged in the business of selling, constructing, and renting outdoor advertising of all types, including billboard signs. It owns a sign located just north of Parker Avenue in Louisville within 660 feet of the right of way of Interstate Highway 64, a part of the National System of Interstate and Defense Highways. The billboard was erected in June 1963, pursuant to a permit issued by the City of Louisville, Division of Building Regulations. The sign is on property zoned industrial.

This action was filed by appellant to prohibit appellees from having the sign removed as being in violation of the “Billboard Act” and implementing departmental regulations. See KRS 177.830 et seq. The constitutionality of the Act was upheld in Moore v. Ward, Ky., 377 S.W.2d 881. It was therein decided that the Act is valid as a proper exercise of the state police power and that the agreement entered into with the United States Department of Commerce, Bureau of Public Roads, concerning the construction of the interstate highway system in Kentucky did not constitute a relinquishment by the state of the right to exercise its police power,

Appellant contends that former 23 U.S. C.A., Section 131(b), deprived the state of its police power to control outdoor advertising. 23 U.S.C.A., Section 131(b), expressly provided that federal-state agreements shall not apply to segments of the interstate system which traverse commercial or industrial zones within the boundaries of incorporated municipalities. Under that statute the federal government was expressly excluded from such control in such areas. However, on October 12, 1965, Section 131 (b) was replaced by Section 131(d), which provides that states shall have full authority under their zoning laws to zone areas for commercial or industrial purposes.

The first federal statute mentioned deals with federal control but does not purport to limit the state’s right of control. The succeeding statute expressly recognizes the state’s right of control. Neither is construed as prohibiting the exercise of the state’s police power.

The right of the Tate to establish standards imposing stricter limitations with respect to signs is recognized in 23 U.S.C.A., Section 131 (k); in the National Standards promulgated by the Secretary of Commerce, 23 C.F.R., Section 20.10; and in the original agreement executed June 12, 1961, by appellee Ward, in his official capacity, and by the Department of Commerce. Accordingly, it is concluded that the state had authority under its police power to regulate outdoor advertising along interstate highways within the corporate limits of the municipality it created, which authority has been recognized by the Department of Commerce. KRS 177.863, dealing with roads of the Federal-Aid Primary System, has no application to the National System of Interstate and Defense Highways and thus is not controlling. See 23 U.S.C.A., Sections 101 and 103, for definitions and distinctions in the two systems. See also KRS 177.830 (2) and (3).

Appellant argues that the state cannot contravene the action of the city in zoning the area of the sign as industrial and permitting the erection and maintenance of the sign. The city’s power to zone is derived solely from express authority conferred on the municipality by the state legislature. It has no inherent police power. Jones v. Russell, 224 Ky. 390, 6 S.W.2d 460; City of Somerset v. Weise, Ky., 263 S.W.2d 921. The city cannot exercise police power in enacting a zoning ordinance unless the right has been given by the legislature. Fowler v. Obier, 224 Ky. 742, 7 S.W.2d 219. In O’Brien v. Department of Alcoholic Beverage Control, 306 Ky. 238, 206 S.W.2d 941, it was held that the power of an agency of the state, when authorized by the state legislature, was superior to that of a municipality. Deckert v. Levy, 308 Ky. 67, 213 S.W.2d 431. The enactment of the “Billboard Act” delegated to the Department of Highways, an agency of the state, a right of control in the exercise of the state’s police power in this instance which is superior to the right of the city to zone.

The “Billboard Act” provided for the adoption of regulations to carry out the provisions of the Act. The Act prohibited the erection or maintenance of any advertising device upon or within 660 feet of the right of way of any interstate highway unless such device complied with the regulations authorized by the Act. See KRS 177.-840(1) and 177.860.

The Department of Highways regulations permit the maintenance of an advertising device, such as appellant’s, in a commercially or industrially developed area. Such area is defined therein, thus:

“Any area within 100 feet of, and including, any area where there are located within the protected area at least ten (10) separate commercial or industrial enterprises, not one of the structures from which one of such enterprises is being conducted is located at a distance greater than 1620 feet from any other structure from which one of the other enterprises; is being conducted; * *

Appellant argues that such regulation violates Sections 27 and 28 of the Kentucky Constitution, and is an unconstitutional delegation of legislative power to the executive branch of the government. A reading of the regulation indicates that it is in furtherance of the purpose of the legislation which specifically authorizes the adoption of such regulations. In the light of Butler v. United Cerebral Palsy of Northern Ky., Inc., Ky., 352 S.W.2d 203, such regulation is not an unconstitutional delegation of legislative power. Nor is the regulation vague and abstract. It contains various definitions and is specific in its terms in so far as this case is involved. It provides that signs located in protected areas, such as industrial or commercial areas, may be constructed and maintained.

The Chancellor heard proof concerning the development of the area and concluded that it did not fall within the definition of “commercially or industrially developed area” wherein such sign was permissible. The Chancellor found that the area was not entirely zoned for commercial or industrial use as required by the statute. Part of the area was zoned residential. The Chancellor also found that there were not ten separate industrial or commercial enterprises whose structures were located at a distance less than 1620 feet from all of the other structures from which one or the other enterprise was being conducted. Appellant’s contention that 1620 feet may separate any two of the enterprises is at odds with the purpose of the statute to limit billboards. Under the contended-for construction the ten business enterprises could extend for 16,200 feet. Such a construction would defeat the purpose of the Act. The Chancellor’s findings are supported by appropriate evidence. There is no reason to disturb them.

Judgment affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    CLEMENT BROTHERS COMPANY, Inc., Appellant, v. Hallie B. EVERETT and Karl Everett, Appellees.
    Court of Appeals of Kentucky.
    March 17, 1967.
    Rehearing Denied June 2, 1967.
    Terry L. Hatchett, Glasgow, for appellant.
    Marion Vance, Redford & Redford, Glasgow, for appellees.
   CULLEN, Commissioner.

Clement Brothers Company, Inc., appeals from a judgment upon a jury verdict awarding the appellees, Hallie B. Everett and her husband Karl, $5,000 for damages to their dwelling by concussions or vibrations from blasting operations carried on by the appellant.

It is contended that there was insufficient evidence of negligence or of proximate cause, and that the instructions were erroneous as related to negligence. Liability in this kind of case does not rest on negligence. Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755. Therefore it was unnecessary to prove negligence, and any error in the instructions as they related to negligence was not prejudicial. As concerns causation, we find in the record ample evidence that the blasting caused damage to the appellees’ house.

Various complaints are made with respect to rulings on evidence but since we are reversing the judgment on other grounds, and since the evidence questions are not likely to recur, we reserve judgment on those questions.

The appelleees’ house is a modest one consisting of five rooms, three of which rest on brick piers with no basement below them. On three sides the outside walls are covered with asbestos shingles; on the fourth there is only black tar paper. The claim of the appellees was that there was serious structural damage to the house, such as to require major repairs to substantially all of the basic structural components. However, the visible evidence of damage consisted mostly of minor things such as cracks, warped doors, separated wall paneling, etc., which could be repaired at relatively small cost. There was little evidence of major structural damage aside from the statements of the owners as to movements and shifting of the house from time to time.

The appellees did present as a witness a long-time carpenter who testified that he had looked over the house and had found evidence of “corner joists” having “pulled apart;” door jambs “out of plumb;” walls that “do not join;” and places where the house was “disjointed.” However, he admitted that “you can’t see inside. You can’t see what you would get into when you get in there * * He gave his opinion that it would cost between $8,500 and $9,000 to “repair the whole project.” This estimate was strictly “eye-ball” and was not based on any detailed estimate of materials or labor.

Considering the quality of the house, the nature of the physical evidences of damage, the absence of direct proof of major structural damage, and the complete lack of supporting data for the $8,500 to $9,000 estimate of repair cost, the evidence lacks quality of conviction that the damages are as high as found by the jury. See Commonwealth v. Tyree, Ky., 365 S.W.2d 472. The award strikes us as being so high as to suggest the influence of passion and prejudice. Probably the suggestion is not so strong as by itself alone to warrant setting aside the award, but it is strong enough to induce us to look to the record for sources of prejudice. We find them in the closing arguments of appellees’ two counsel.

The arguments appear to have been designed specifically to appeal to and arouse the passions and prejudices of the jury. The appellant company was pictured as a rich, grasping, foreign corporation running ruthlessly roughshod over the poor, honest, long-suffering citizens of Barren County; its attorney as a rich man who would be upset if it were his “mansion” that suffered the blasting damage. Repeated references were made to the appellant’s four-million-dollar contract. The jury was asked whether it would let “these people from North Carolina come in here and destroy a good woman’s property?” The appellant was compared to a wolf devouring a lamb. The jury was asked to imagine a little child in the appellees’ yard having been struck and killed by a large boulder from the blasting operation. The jurors were told that if they did not give the requested damages the appellees “will have to look at your faces then in their memory.”

Arguments such as these repeatedly have been condemned by this Court. See Commonwealth, Department of Highways v. Sanders, Ky., 396 S.W.2d 781; Walden v. Jones, 289 Ky. 395, 158 S.W.2d 609, 141 A.L.R. 105; Gunterman v. Cleaver, 204 Ky. 62, 263 S.W. 683; Southern-Harlan Coal Co. v. Gallaier, 240 Ky. 106, 41 S.W.2d 661; Murphy v. Cordle, 303 Ky. 229, 197 S.W.2d 242; Wells v. King, 219 Ky. 201, 292 S.W. 777; Carter Coal Co. v. Hill, 166 Ky. 213, 179 S.W. 2.

It is true that counsel for appellant sat by and made no objection during the argument, and for the first time raised objection in his motion for a new trial. But we are not concerned here with whether the improper argument is reversible error; we simply are identifying it as an obvious source of the passion and prejudice that appears to have influenced the jury in fixing damages. We are reversing for excessive damages.

The judgment is reversed for further proceedings in conformity with this opinion.

All concur.


text:
    AUTOMOBILE CLUB INSURANCE COMPANY, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Rehearing Denied June 2, 1967.

      Robert S. Miller, Miller, Griffin & Marks, Lexington, for appellant.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Jarvis Allen, Dept, of Highways, Frankfort, for appellee.
   WADDILL, Commissioner.

This appeal presents the single question of whether an insurance company can maintain an action against the Commonwealth of Kentucky in the Board of Claims when its claim is solely for contribution.

Appellant, Automobile Club Insurance Company, settled a claim for wrongful death arising out of a highway accident for $14,000. It then sought to recover one-half of this sum from the Commonwealth of Kentucky by filing a claim, in the Board of Claims, wherein it alleged the decedent’s death “was caused and brought about by the joint and concurrent negligence, recklessness and carelessness” of its insured and agents of the Commonwealth. The board concluded as a matter of law that the partial waiver of governmental immunity provided by KRS 44.070 does not include the right to recover for contribution. The board’s order was affirmed on appeal to the circuit court.

The Board of Claims is authorized by KRS 44.070 “to compensate persons for damages sustained to either person or property as a proximate result of negligence on the part of the Commonwealth.” It is the Commonwealth’s contention .that the insurance company is not a “person” within the legislative intent of this statute. This premise does not take cognizance of the capacity in which the company seeks a recovery. After paying the damage claim asserted against the tort-feasors, the company became subrogated to the rights of its insured. Hence, it stands in the same position as its insured would have if he had satisfied the claim and then asked for contribution before the board. Leitner v. Hawkins, 311 Ky. 300, 223 S.W.2d 988.

The Commonwealth also contends that since contribution is based on implied contract, this action is not founded on negligence and may not be maintained under KRS 44.070. It has been recognized that before a party may maintain an action for contribution (KRS 412.030) the claim must have been satisfied by that party so as to give rise to an implied contract. In other words, if one party pays money under circumstances whereby he can establish that another party owes a portion of this debt,, the former party may maintain an action to recover it. Consolidated Coach Corp. v. Wright, 231 Ky. 713, 22 S.W.2d 108.

In the instant action the company paid the entire claim asserted by the decedent’s estate. While the payment gave rise to an implied contract this merely gave it the right to seek a recovery of the damages it paid on behalf of the joint tort-feasor. Southeastern Greyhound Lines v. Myers, 288 Ky. 337, 156 S.W.2d 161, 138 A.L.R. 1461. The basis of the action is the alleged negligence of the Commonwealth. The company must convince the board that negligence of the Commonwealth was a proximate cause of the accident before it can obtain an award. Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086.

We believe it is within the intent of the legislature in enacting KRS 44.070 that a tort-feasor (or person subrogated to his rights), who has settled a claim based on the negligence of the joint tort-feasors, should be able to recover the Commonwealth’s share of the obligation when the latter is one of the joint tort-feasors.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.