author: TOWNSEND, Commissioner.

text:
    W. BERBERICH, Rod Tiemann, A. J. Gubser, George Stocker, G. C. Biesinger, Nelson H. Buss, and William Hennerich, Plaintiffs-Appellants, v. CONCORDIA GYMNASTIC SOCIETY, Defendant-Respondent, City of Saint Louis, Intervenor-Respondent.
    No. 32272.
    St. Louis Court of Appeals, Missouri.
    April 19, 1966.

      Herman M. Katcher, Walter S. Berk-man, St. Louis, for appellant.
    Stemmier & Stemmier, St. Louis, for defendant-respondent.
    Thomas F. McGuire, City Counselor, Thomas J. Neenan, John J. Fitzgibbon, Associate City Counselors, St. Louis, for in-tervenor-respondent.
   TOWNSEND, Commissioner.

This is an action for a declaratory judgment seeking a declaration as to the rights and duties of the parties with respect to certain real estate acquired by defendant in 1961 and for an injunction restraining defendant from the use of that real estate in alleged violation of the Zoning Ordinances of the City of St. Louis. The city has intervened. From an adverse judgment, plaintiffs appeal.

Plaintiffs charge that the allegedly unauthorized and illegal use of defendant’s property is continuous and recurrent, that the damage to plaintiffs flowing therefrom is irreparable, that plaintiffs will suffer further deterioration in the value of the property of each unless such use is enjoined, that the damage is not susceptible of precise determination, and that plaintiffs are without adequate remedies at law. Defendant denies any violation of the ordinances and on the contrary maintains that present and contemplated uses of the property in question are specifically permitted thereunder. Defendant also denies that either its present or intended use of that property has caused or will cause plaintiffs to suffer any damages or deterioration of their property whatsoever.

Defendant has filed a motion to dismiss the appeal on the ground that the questions presented have become moot. We find otherwise and deny the motion.

Defendant’s tract lies in part in “F” zoning district (commercial) and in part in “A” district (single-family dwelling). The westerly or F part of the tract faces on Gravois Avenue and is occupied in part by defendant’s buildings, housing dining rooms, bar, handball court and gymnasium. The A part of the tract lies in general back of such buildings and hence is in the easterly part of defendant’s real estate. Maps introduced by the parties indicate that the defendant’s real estate has a depth from Gravois Avenue of approximately 350 feet and that the F portion of the tract is approximately 125 feet in depth. Plaintiffs are the owners of single-family dwellings on lots contiguous with or in the immediate vicinity of Part A.

The relevant zoning ordinance of the City of St. Louis was adopted in 1950 (Ord. 45309). The pertinent parts are found in Chapters 904 and 903 of the city code and are as follows:

“904 ‘A’ SINGLE-FAMILY DWELLING DISTRICT
904.010 District Regulations. — The regulations set forth in this Chapter or set forth elsewhere in the zoning code when referred to in this Chapter are the district regulations in the ‘A’ Single-Family Dwelling District.
904.020. Use Regulations. — A building or premises shall be used only for the following purposes:
(1) Single-Family Dwellings.
* * ⅜
(5) Churches.
(6) Schools offering not less than two years of complete courses of instruction equivalent to those given in public primary, secondary and high schools or state universities.
* * *
(9) Publicly owned museums, art galleries, parks and playgrounds, and libraries ; and privately owned parks and playgrounds wherein no service is rendered, or activity conducted, as a business.
(10) Accessory building and uses customarily incidental to any of the above uses * * *
⅝ ⅜ ‡ »

Section 903.010 of the Code provides: “Uses Prohibited. — No building or land shall be used for a use other than those permitted in the district in which such premises are located unless * * * (b) such use existed prior to the effective date of this ordinance.” The ordinance was approved April 25, 1950.

We note that the parties have stipulated that a Certificate of Occupancy was issued by the city’s Department of Public Safety, Division of Building and Inspection, on June 8, 1962, and that it certifies that the property at 6432 Gravois is in the “F. and A. Zoning District and may be used for Private Park and Playground, which usage is permissible in the F. and A. Zoning District in accordance with the provisions of Ordinance 45309 as amended.” This certificate is of no moment in the present case since, insofar as the real estate here in controversy is concerned, it simply recites the terms of the ordinance and so aids in determining nothing. And see Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357.

Defendant put into evidence a plat showing proposed developments in the A area including swimming pool, parking area, children’s area with a wading pool, a horseshoe pitching plot, fences and shrubbery. At the rear of the lot the plat shows an area designated as “Outdoor Activities (Running, Shot Put, etc.)”. The latter area runs across almost the full width of the tract and ends at one corner with “Sand Pit for Jumping”. The north side of the proposed parking area to its full length and a small part of the “Outdoor Activities” area are those portions of the A area that lie nearest to the residences of plaintiffs. Defendant’s president testified concerning the various intended uses. About one and one-half acres lie within the A zoned area; approximately two-thirds of such A part is to be available as a parking lot. He suggested the possibility that the paved part of such two-thirds would be used for variant purposes — handball courts, tennis courts, barbecues and picnicking, and square dances — “by any part of our program that it would be best suited for”.

By the evidence and the arguments, pro and con, emphasis has been placed principally upon the matter of building and operating a swimming pool.

We proceed to consider the following numbered specifications of violations alleged by plaintiffs in their petition:

(1) That defendant “has permitted, and will permit, large assemblies of persons for playground and picnics in said area designated as Zoned ‘A’ single family dwelling”. The record is barren of any evidence relating to the size of the groups which assemble on part A for playground purposes. Nor could such size seem to be material if part A is being utilized for one of the purposes specifically comprehended within “A” Single-Family Dwelling District, namely, use as a privately owned park and playground. As far as use as a park and playground simpliciter are concerned there is nothing to indicate that service is rendered or an activity conducted in connection therewith as a business. As for picnics, we have no difficulty in recognizing picnicking as an “accessory use customarily incidental” to the use of a park and playground. The habits and customs of our fellow citizens are not so unknown to us as to leave us in any doubts on that score. We find no ordinance violation under this head.

(2) That defendant “plans to, and proposes to, use its said property for the purpose of constructing a swimming pool and cabanna area in an area Zoned ‘A’ single family dwelling, to be available to restricted public membership”. Does the construction and operation of a swimming pool fall outside the scope of use of the premises as a park and playground? To this question plaintiffs have vigorously devoted a large part of their argument. We disagree with their contentions. It needs no buttressing by the citation of precedents to say that parks and playgrounds are generally conceived to be areas devoted to recreation and in this day and age it would be a little late to embrace the concept of a park and playground as necessarily excluding facilities for physical exercise, for recreational sports and for competitive games. There can be no doubt that swimming is a healthful and popular form of recreation and relaxation. The presence of swimming pools in parks and playgrounds is a matter of such common knowledge that the practice of so installing and maintaining them cannot be ignored.

Counsel have presented no precedents in this respect relating to private parks and playgrounds and investigation has brought none to our attention. However Section 904.020 includes publicly owned,parks and playgrounds in the same subsection (9) with privately owned parks and playgrounds and, while it would be pure dictum to say that the criteria for determining the permissive uses of one are always the same as for the other, the juxtaposition of the two terms in the same subsection justifies an examination of some of the available precedents relating to permissive uses of public parks and playgrounds.

In Bailey v. City of Topeka, 97 Kan. 327, 154 P. 1014, L.R.A.1916D, 491, there was a private gift of land to the City to be used as a public park “for the benefit of the health, comfort and recreation of the citizens * * The Court said: “Clearly it is not inconsistent with the conditions imposed by the donor of the property that visitors to the park should be afforded facilities * * * for boating, and bathing * * * the facilities undertaken to be supplied are appropriate to the conduct of a public park.”

“A public park is ground used for public recreation * * * swimming is a popular and healthful recreation, so we are of the opinion that a public swimming pool is within the definition of a public park and the City had charter power to operate such pool.” Ashworth v. City of Clarksburg, 118 W.Va. 476, 190 S.E. 763.

“The swimming pool * * * was a feature of the park tending to promote public health, happiness, and welfare.” Gilliland v. City of Topeka, 124 Kan. 726, 262 P. 493.

The Supreme Court of Colorado in an opinion put the question: “Is the installation of a swimming pool and bathhouse in a public park, for the use of the public, a park purpose? The answer is ‘Yes’”. McLauthlin v. City and County of Denver, 131 Colo. 222, 280 P.2d 1103.

In an action to enjoin the issuance of municipal bonds, the proceeds of which were to be used for the purpose of building a swimming pool in a public park, the Supreme Court of Kansas said: “Swimming is a universal recreation of the highest order * * * cities with propriety have parks with modern, sanitary pools to which its citizens may resort for the benefit of their health. Whatever encourages or induces the ordinary ‘city shut-in’ to seek exercise, relaxation, recreation, or healthful amusement is a means of redounding to the public welfare and should be approved.” Smith v. Fuest, 125 Kan. 341, 263 P. 1069.

We find no violation of ordinance in the mere construction and operation of a swimming pool in part A.

The meaning in this specification of the words, “to be available to restricted public membership” is unclear. The president of defendant testified as to the various types of membership in the society. Use of its facilities is confined to members, their children and guests, except upon those occasions when the structures in part F are rented to outside parties. For a certain class of members — sustaining—a certain tuition charge is made when children of such members receive instruction in gymnastic classes and it is intended to follow the same practice when children of such members receive swimming or diving instruction at the pool. It seems somewhat inept to say then that the pool is to be available to restricted public membership. If the intended connotation of that phrase is that the pool is thereby to be made available to the general public we think there is no evidence to support such a charge.

(3) That the defendant “has permitted and will in the future permit, a large and substantial number of motor vehicles to be ^parked in an area zoned- ‘A’ single family dwelling.” Again it seems to us that in a modern setting the use of an area for automobile parking purposes is incidental to the basic uses of a park and playground as long as use by such parking is confined to those who are pursuing the activities contemplated within such basic uses. This again involves a matter of such common knowledge that it cannot be ignored. The universal use of the automobile and the undeniable practice of utilizing certain portions of a park and playground for the vehicular accommodation of those who come to accomplish the recreational purposes of such an area lead inevitably to the conclusion just stated.

On the other hand, the evidence establishes that the parking area within part A is utilized also by members of the defendant society who are not otherwise engaging in any activities within part A; members who come only to enjoy the use of the defendant’s buildings in part F also park their cars in the parking area found in part A. When so doing, such use of the parking facilities within part A is not an “accessory use customarily incidental” to the permitted uses of part A as a park and playground within the terms of Chapter 904.

Moreover the evidence shows that the defendant rents out its buildings within the F zone for wedding receptions, banquets, dances and other affairs, particularly on weekends. The evidence well discloses that there is some parking in the parking area in part A by persons attending the affairs in part F, despite the efforts of defendant to provide parking for such persons in the F area and in parking facilities located across Gravois Avenue. Use of the parking area in part A by such persons upon such occasions is obviously not a use permitted under any part of Chapter 904. In fact, such use of the parking area in part A is a use prohibited under Section 903.010 of the Code, unless saved by provisions of the Code hereinafter considered.

The evidence shows that in 1941 (and perhaps prior thereto) the whole tract of land herein involved was owned by the proprietors of an outdoor beer garden and restaurant known as the “Black Forest”; subsequently the tract was utilized by the proprietors of a restaurant known as the “Thunderbird”. Testimony by one of defendant’s witnesses was to the effect that in 1941 the outdoor beer garden extended into what is now a part of part A of the tract and that parking of cars was regularly permitted in the area now known as part A. Another witness for defendant testified as to his presence in the Black Forest in 1947. He recalls that at that time parking occurred “nearly to the back of the property”. Witness visited the property three or four times during 1949. There was no evidence rebutting the testimony of these two defence witnesses.

The obvious purpose of eliciting the testimony of the last mentioned two witnesses was to establish a non-conforming use of part A of the tract before 1950. While both witnesses are members of the society, there was no attempt to impeach their testimony. Additionally one of the plaintiffs testified that in 1952 there was parking in part A — “a few cars, yes, on occasion”.

The present use of the parking area in part A includes uses permitted by the Zoning Ordinance; it includes also uses which do not fall within the specified permissive uses of Chapter 904. However, the implication of Section 903.010 of the Code that a use which existed prior to April 25, 1950 is a permissive use is clear.

We proceed to consider plaintiffs’ evidence as to past and present uses of the parking area in part A of the tract.

Plaintiffs’ witnesses testified to the following effect: Mrs. Schneebeli stated that she and her husband moved to their adjacent property in 1956, that cars are parked in the area in question every night, that more cars are parked there every weekend. “Saturday night mostly”, that in their first year of residence she noticed cars parked behind their property but not as many as now, that she never noticed whether Black Forest parking extended “on back”, that at the times of receptions persons who park in the area are usually there after midnight and by their loud talk and other noise-making disturb and awaken witness’ family. Mrs. Hennerich, whose residence in the neighborhood dates from 1954, testified that while Black Forest had the tract there was parking a few yards in from the back boundary of the tract (“A few yards in from your property? (A) Yes”), that “we had trouble with them too and we went down to see what the zoning was. * * * it was they allowed no parking whatever in there, and we would call and make them stop and if you’d call then they would stop for a while”, that some would park back near the boundary “and we would report it, because when we had our house built we had it built with the understanding there was no parking in there, that was residential and they guaranteed that to us”, that the latter understanding was “with City Hall, when we went there to see about the zoning.” Mr. Berberich testified that in 1952 he moved to his present residence adjacent to the rear of the tract, that he visited the Black Forest prior to 1950, that he took part in its open air facilities, that in the A part there was parking by “a few cars, yes, on occasion”, at the time that he moved to his property, that currently there is “Parking in the back and they get out late at night and use profane language and sing out there and we have to call the police, on numerous occasions we have had to call the police to get them off the parking lot after whatever affair they had there closes”, that there are some cars parked there every day and on weekend nights the lot is “filled or half filled” and that this has been going on ever since defendant started renting out the hall.

From the above summarized testimony of plaintiffs’ witnesses, plaintiffs’ brief makes the finding under Point II that whenever cars were parked in the A part before defendant’s acquisition of the property, the adjoining residents made complaints and thereafter parking thereon was discontinued. The recited testimony will not support an inference of discontinuance. Neither appeals to the police nor protests to the former occupants of the tract resulted in the complete cessation of parking in the disputed area. Whether parking was intermittent, or sporadic as plaintiffs would characterize it, the net result was no complete relinquishment of the practice of parking in the A part. Even the testimony of Mr. Berberich, one of the plaintiffs, shows that the Black Forest continued in occupancy in 1952 and that there was parking in the area in that year. None of plaintiffs’ witnesses had any relationship to that area before 1952 and if a non-conforming use was established before 1950 that use was not lost by infrequent parking; the privilege of using land for a non-conforming use is extinguished only by an abandonment for a period of ten years. Section 903.060.

Section 901.330 defines non-conforming use in these words: “Any building or land lawfully occupied by a use on May 25, 1950, which is in conflict with the use regulations of the district in which it is situated.” Plaintiffs’ brief contends that the “occasional” parking of cars before April 25, 1950, on what is now part A was unlawful because there is no evidence that prior owners had ever obtained permits or licenses to use the land for a parking lot. We choose to state the matter in a converse fashion and say that there is no evidence that such use prior to April 25, 1950 was unlawful and so .presumptively such use was lawful. The reference to permits and licenses is irrelevant in the absence of some showing that the city had exercised its police power to require the same.

On the basis of all the evidence that is before us, we find that parking in the present and contemplated parking area of part A of the tract is a permitted use by virtue of Section 903.010 and hence constitutes no violation of the Ordinance.

(4) That the defendant “has permitted, and will permit, motor vehicles to be parked in an area Zoned ‘A’ single family dwelling, without said area complying with the requirements of City Ordinance with respect to parking space.”

There are no specifications of this complaint. -If it is intended to connote some ordinance requirement of size of or materials for parking space, there is no reference thereto either in plaintiffs’ brief or in their evidence. If the allegation is intended to assert generally a use of the parking area not conforming to the requirements of the ordinance that matter has already been considered.

Plaintiffs make the further charge that the defendant does not conduct a “school” as defined in the Ordinance. The president of the defendant testified that the society conducts a gymnastic school within the buildings situated on the F part of the property and that it will extend the operations of such school to include classes in swimming and diving at the swimming pool located in part A. The emblem of the society publicizes the fact that it conducts a school, “Concordia Turners School of Physical Training”. Plaintiffs maintain that the extension of the school’s activities to the pool in part A does not involve a permissive use of part A within that part of the use regulations which permits “Schools offering not less than two years of complete courses of instruction equivalent to those given in public primary, secondary and high schools or state universities”. There is nothing to indicate that the activities of the defendant in conducting a Concordia Turners School of Physical Training fall within the descriptive permission of Section 904.020(6); in fact the evidence establishes such a limited scope of instruction that no resemblance to the kind of school delineated by that subsection can be found. Hence the conduct of swimming classes on the A zoned area as a part of the Turners’ school activities is not sanctioned by 904.020(6). Compare State ex rel. Kaegel v. Holekamp, Mo.App., 151 S.W.2d 685. However we believe that swimming instruction will be readily recognized as a normal and usual concomitant of swimming in a playground pool. Organization of some classes for swimming instruction does not lessen the fact the pool is being utilized for park and playground purposes. The fact that a tuition charge for such instruction is to be made for the children of some classes of members does not detract from that conclusion. Such tuition charges will not make the giving of instruction the carrying on of a business. The pool will remain a private institution. The general public will still have no access to its facilities. We hold that the giving of such swimming instruction even at a tuition charge for the children of some classes of members is a permissive use within the meaning of Section 904.020(9).

Plaintiffs’ charge that they have suffered a diminution in the value of their respective properties is without evidentiary support.

Plaintiffs’ evidence does show that there has been some abuse of the use of parking in part A. That fact however does not operate to withdraw part A from orderly and reasonably quiet parking. We are not aware that the enactment of a zoning ordinance operates as a repeal of the law of nuisance or that disturbance of the peace is thereby removed from otherwise appropriate police and prosecutor action.

The judgment should be affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, G, is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

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

      . That part of this sub-section relating to privately owned parks and playgrounds was enacted in 1957.

      . By Ord. 50547, approved April 21, 1961, the (b) exception reads: “prior to May 25, 1950”.

      . The May, 1950, date was supplied by Ord. 50547, approved April 12, 1961.

      . Plaintiffs have cited us to State ex rel. Beacon Court, Inc., v. Wind, Mo.App., 309 S.W.2d 663, from this Court. In that case there was an abundance of evidence that a certain non-conforming use did not exist at the effective date of the ordinance; in the present case there is a total absence of such evidence of non-existence. Hence the reference is not pertinent.


source: Caselaw Access Project

author: CLEMENS, Commissioner.

license: Public Domain

text:
    Imogene ANDERSON, Administratrix of the Estate of June Odell Anderson, Deceased, Plaintiff-Respondent, v. Jackie R. ROBERTSON, John T. Slaner and Mrs. Mason A. Sachse, Defendants, Jackie R. Robertson, Defendant-Appellant.
    No. 32191.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.

      Manuel Drumm, Sikeston, for appellant.
    Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondent.
   CLEMENS, Commissioner.

This is a wrongful death action arising from an automobile collision in Cape Gir-ardeau. The decedent, June Odell Anderson, was a passenger in a small sports car, driven by defendant Robertson and owned by defendant Slaner, when it collided with the rear end of a large sedan operated by defendant Mrs. Sachse. The trial court directed a verdict for the owner of the sports car, defendant Slaner, and the jury exonerated the driver of the sedan, defendant Sachse. The administratrix got a $10,000 verdict against the defendant sports car driver, Robertson, whom we will call the defendant. He alone has appealed.

The defendant presents an array of challenges to the judgment. In the order of occurrence: (1) The court erred in refusing to grant defendant’s challenge to a venireman who equivocated as to having formed an opinion on the issue of liability. (2) The court erred in permitting a nine-year-old boy to testify about the defendant’s speed. (3) The court erred in applying the Dead Man’s Statute to the defendant after he had testified as plaintiff’s witness. (4) The court erred in permitting the jury to see a police report on which there was a notation, only partly concealed, showing the defendant’s arrest for drunken driving. (5) The court erred in permitting plaintiff to argue that there was a financial loss of $15 a week, since that amount represented payment for the decedent’s room and board. (6) The $10,000 verdict is excessive.

Since the sufficiency of the evidence is not questioned, a brief statement of the facts consistent with the verdict will suffice to set the background for the six points raised by the defendant.

The decedent was a 27-year-old, unmarried secretary, an acquaintance of the defendant. On a sunny, summer afternoon he had borrowed the open-topped sports car of defendant Slaner to get refreshments for a party. Enroute, while stopped at a tavern, he met June Anderson, who accepted his invitation to join mutual friends at the party. They drove north on U. S. Highway 61 along the outskirts of Cape Girardeau, where- the highway has four wide lanes, flanked by paved shoulders. They topped a crest, and starting down a long, gentle slope they had an open view for some 1,600 feet ahead. Halfway down this slope, on the right side; was the intersection of Marilyn Drive leading east into a subdivision, where defendant Sachse lived. She, too, had been driving north on Highway 61, at a speed of 30 miles an hour. A block short of Marilyn Drive she had turned on her right-turn signal. According to his own estimate the defendant was then driving 45 to 50 miles an hour. He did not see Mrs. Sachse’s car until he was 100 feet behind it, nor did he realize she was slowing down to make a right turn. Without either swerving or slackening his speed the defendant drove into Mrs. Sachse’s car, the right side of the sports car hitting the left-rear fender of her sedan. The sports car then careened out of control, first to the left and then to the right, coming to rest in a ditch along the right side of the highway, 200 feet beyond the point of collision. Somewhere along this last segment of the defendant’s path, June Anderson was thrown from the sports car onto- the pavement. She was killed instantly. Other evidence will be related as it applies specifically to the points raised.

At 5 Am.Jur.2d, Appeal and Error § 772, it is said: “The necessities of judicial administration require that courts of first instance be vested with a large measure of discretion in passing upon various matters which cannot, in their nature, be effectively reviewed on the cold record transmitted to the appellate court.” With the sole exception of the point concerning the Dead Man’s Statute, every error charged here must be determined by deciding whether the trial court abused its judicial discretion. It seems appropriate, therefore, to say what we mean by judicial discretion and the abuse thereof.

Paraphrasing the rulings of this court in Harriman v. Harriman, Mo.App., 281 S.W.2d 566 [4], and that of the Supreme Court of Alabama in Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So.2d 339, we say first that judicial discretion is the option the trial judge has in doing or not doing a thing which cannot be demanded by a litigant as a-n absolute right. In a minority of early American cases it was held that matters resting in the judicial discretion of a trial court could not be reviewed on appeal. Such a principle, however, would cast the trial judge in the role of a tyrant — a role repulsive to the principles of justice. State v. Cummings, 36 Mo. 263, l. c. 278, 279. Early Missouri cases rejected the minority rule. Our courts joined the majority in adopting the principle that discretionary matters are reviewable because “the ultimate responsibility for every judgment rests upon the court of final resort.” Feurt v. Caster, 174 Mo. 289, 73 S.W. 576[2]. See Bowers, The Judicial Discretion of Trial Courts, § 16, p. 29.

Reverting now to the Harriman and Mullins cases, supra, we say that judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. It is, however, a principle deep within our law that on appeal from a trial court’s discretionary ruling it is presumed that the ruling is correct, and that the burden of showing abuse of that discretion is on the appellant. Stewart v. Small, 5 Mo. 525, l. c. 528; Funkhouser v. How, 18 Mo. 47, l. c. 49; and cases listed in 3 Mo.Dig., Appeal and Error, ®=5901. When appellate courts are called upon to apply this test, it is well to heed the words: “If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Delno v. Market St. Ry. Co., C.C.A.Cal., 124 F.2d 965, 967. Bowers, The Judicial Discretion of Trial Courts, §§ 12 and 17, pp. 20 and 33.

Initially, defendant urges us to reverse the trial court for denying his challenge to venireman Siemers. Several veniremen had read a newspaper account of the collision, and Mr. Siemers recalled it in detail. A double-barreled, complex question was put to him, asking whether he could render an impartial verdict or whether the reading of the newspaper story had caused him to form an opinion about the collision that he could not strike from his mind. He answered obscurely, “I would rather say it probably would, yes.” Then:

“THE COURT: You are saying that you feel from your knowledge of reading the newspaper account that you have such a strong idea about what happened in this case that you cannot sit here as a juror and listen to the evidence and make up your mind concerning the case on the basis of the evidence?
“MR. SIEMERS: On the basis of the evidence I believe I could, yes.
“THE COURT: In other words, your memory of the newspaper account and what you decided from that is not strong enough to keep you from making up your mind in this case on the basis of the evidence ?
“MR. SIEMERS: No.
“THE COURT: All right. I’m not going to take this man off if that is his feeling.”

The defendant cites cases holding that a litigant is entitled to an impartial jury and points to § 494.190, RSMo 1959, V.A.M.S., which disqualifies a venireman who has formed or expressed an opinion that may influence his judgment. To sustain his point, defendant construes Mr. Siemers’ first answer as showing that he had formed an opinion that would influence his judgment. Defendant’s argument ignores the venireman’s answers to the court’s question. They showed that he had not formed such an opinion but would be guided by the evidence. This was an issue directed to the sound discretion of the trial court, and its ruling may be disturbed only if that discretion is manifestly abused. State v. Jones, Mo., 384 S.W.2d 554[1, 2]. We hold that when the venireman first asserted but then on further inquiry denied he had formed a disqualifying opinion, the trial court did not abuse its discretion by refusing the challenge for cause. This point is ruled against the defendant.

Defendant next objects to part of the testimony of the only eye-witness to the collision, nine-year-old Blane Nagel. He had been playing whiffle ball on a lot at the northwest corner of Highway 61 and Marilyn Drive. The boy testified in detail about the movements of each car before and after the collision, and then was asked if he observed whether the defendant’s sports car was going fast or slow. Over defendant’s objection Blane was permitted to answer, and he said: “It was going pretty fast.” Defendant complains that Blane had not demonstrated the necessary qualifications to give an opinion of defendant’s speed.

We are not convinced that it was error to admit this testimony. The admission or exclusion of opinion testimony is largely within the discretion of the trial court. See cases at 12A Mo.Dig., Evidence, <®=546. Further, it has been held proper for a non-expert witness to testify that a vehicle “was going very fast.” State v. Watson, 216 Mo. 420, 115 S.W. 1011 [2]; Burke v. Shaw Transfer Co., 211 Mo.App. 353, 243 S.W. 449[3]. But we need not rule that issue. Note that the defendant himself testified he was driving 45 to 50 miles an hour in a 45 m.p.h. speed zone. He was hardly prejudiced by the boy’s opinion that he “was going pretty fast.” Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353 [6]. As to this point, we find no error materially affecting the merits of the action; so, we may not reverse. Civil Rule 83.13(b), V.A. M.R.

The defendant’s next point concerns the Dead Man’s Statute. Plaintiff called the defendant to the stand as his own witness. After extensive questioning, plaintiff surrendered the witness for examination by his own counsel. The first question put to him was whether June Anderson had’ told him to- slow down or had criticized his driving. Plaintiff interposed the objection of the Dead Man’s Statute, and it was sustained. Faced with this adverse ruling, the defendant made a proffer “that at no time did June Odell Anderson make complaint or give any statement as to the manner in which the vehicle in which she was riding was being operated.” The proffer was denied. The defendant was questioned further by his own counsel and also by counsel for defendant Sachse, with no further attempt by plaintiff to interpose the Dead Man’s Statute. In none of this was there any reference to June Anderson’s conduct. We mention this to show that there was no evidence beyond the quoted proffer to support defendant’s claim of contributory negligence by June Anderson.

With commendable frankness the plaintiff admits that he waived the Dead Man’s Statute by interrogating the defendant as his own witness, and confesses that the trial court erred in sustaining his objection. He contends, however, that the error did not prejudice the defendant.

The defendant argues here that the exclusion of the proffered testimony deprived him of his “sole opportunity to show the contributory negligence of said June Odell Anderson upon which a proper instruction could later have been given by the Court.” This is his only complaint, and its fallacy is that the admission of the proffered testimony would not have warranted a submission of the defense of contributory negligence. Liability for negligence arises only when three elements exist: a duty, a breach of that duty, and causation. The proffered testimony that June Anderson had not complained of the defendant’s driving would be material only if the defendant produced further evidence showing that she had a duty to warn him, and that the collision was the direct result of her failure to warn. The record does not establish those two elements, duty and causation. The duty of a passenger to warn a driver arises only when there is a visible lack of caution by the driver. Toburen v. Carter, Mo., 273 S.W.2d 161 [2], There was no evidence of a visible lack of caution by the defendant driver. True, he had “two beers” with June Anderson earlier that afternoon. True, just before the impact he was driving 45 to 50 miles an hour in a 45 m. p. h. speed zone. These facts are insufficient to establish a lack of caution by the defendant which was visible to June Anderson. Ketcham v. Thomas, Mo., 283 S.W.2d 642 [3, 4, 6]. It was not shown, therefore, that she had a duty to complain or warn. And, even if we were to assume this element, the record is still bare of any evidence that a complaint or warning by June Anderson would have prevented the fatal collision. Accordingly, we rule that the exclusion of the defendant’s statement of no complaint by June Anderson was not prejudicial because it did not, as he contends, deprive him of the right to submit the defense of contributory negligence of his guest passenger.

Defendant’s next point is that the trial court erred in permitting plaintiff to display a police report containing an admissible plat but also containing an inadmissible report of the defendant’s arrest for “C & I Driving while drinking.” The exhibit was a printed form on which the policeman had drawn a plat showing the scene of the accident with symbols showing the positions of the two cars. Below this there were eight lines of typewriting describing the collision, and after the printed words “Show Arrests and Charges” the typed words “Jackie R. Robertson * * * C & I Driving while drinking.” Defendant objected to display of the exhibit because of this last phrase. The court said the exhibit could be admitted if that part was covered. A piece of paper was then put over the objectionable part, but defendant’s counsel protested that he could still read the words “C & I Driving while drinking” through the covering paper. The judge evidently thought otherwise, for he explained to the jury that the covered portion was not for their inspection and directed them not to peep under the covering paper. Under the court’s scrutiny, the exhibit was passed among the jurors. Later, in chambers, there was testimony about the legibility of the covered portion. The judge acknowledged that it could be read then and there, but said that the jury had been admonished not “to peep” and it was not obvious that they had seen it. The defendant’s motion for a mistrial was denied.

In reviewing this ruling we must indulge the presumption that the trial court exercised its discretion soundly, and absent a showing of manifest abuse we may not interfere. Paepke v. Stadelman, 222 Mo.App. 346, 300 S.W. 845 [9]; Conrad v. Twin Oaks, Inc., Mo.App., 344 S.W.2d 286[5]. Here, the trial court was confronted first with a dual, factual issue: whether the jury could, and did, read the inadmissible part of the police report. The defendant has included the police report in the transcript, but not the paper covering through which, he says, the jury could have read the inadmissible part. Thus, we cannot independently assess the issue of legibility. The other issue before the trial court was whether the jury could deliberate dispassionately on the merits of the case in view of what had occurred. The jury had examined the exhibit under the judge’s scrutiny, and he was in the best position to determine whether the jury had read the objectionable part of the exhibit. The trial court had seen and heard all that occurred and was in a better position than we are to decide whether the drastic remedy of a mistrial was required. The record does not demonstrate that the trial court acted- arbitrarily or without careful consideration, and we rule this point against the defendant.

As said, the defendant raises two points as to damages. First, he contends the court erred in overruling his objection to part of plaintiff’s closing argument. Plaintiff was arguing inferentially that June Anderson’s parents had sustained a financial loss of $15 a week. Defendant objected on the ground that there was no such evidence. On direct examination, June Anderson’s mother had testified that her daughter paid for numerous household expenses, and she said that June’s average weekly contribution to the support of her parents was $15. Then, on cross-examination:

“Q. In other words, in exchange for her shelter, that is, a place to sleep there and live at the trailer and for the food that she ate she would buy part of the groceries and pay the utilities ?
“A. Yes. You heard me say that she ate one meal a day because she ate out at noon and at other times.
“Q. But you believe that about $15.00' a week would cover her contribution to groceries, utilities, telephone bill?
“A. That is what I’d say. * * * ”

The court ruled that the jury would have to follow the evidence, and told counsel to proceed. Plaintiff’s argument as to financial loss of $15 a week was a permissible inference he could draw from the evidence construed favorably to plaintiff. In his role as advocate, counsel is allowed a wide latitude in arguing inferences from the evidence. Harp v. Illinois Central Railroad Co., Mo., 370 S.W.2d 387[17]. And, a trial court is granted a broad discretion in judging the propriety of argument and whether its effect is prejudicial. Kiger v. Terminal Railroad Ass’n of St. Louis, Mo., 311 S.W.2d 5 [9]. We find no abuse of discretion here, and this point is ruled against the defendant.

Second, the defendant contends the $10,000 verdict was excessive. Plaintiff’s evidence was that June Anderson was an only child who had always lived with her mother, a 44-year-old, unemployed housewife, and her father, a 52-year-old, unemployed, heavy-equipment operator. June was a high school graduate with secretarial training and she earned $52 a week. She made no specific payment for her room nor the one meal a day she ate at home; but she paid all the utility bills for the family home, bought some groceries, paid the maintenance expenses of her parents’ car, and gave her mother spending money from time to time. She thereby contributed an average of $15 a week in money toward family expenses. In addition, June ran errands and helped her mother with housework and shopping. The plaintiff had paid a funeral bill of $1,147.45. Thus, there was substantial evidence of pecuniary loss by June Anderson’s parents.

The defendant cites no case indicating this verdict is excessive. The legislative intent of our wrongful death statutes (§§ 537.080 and 537.090, RSMo 1959, V.A. M.S.) 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, * * Steger v. Meehan, Mo., 63 S.W.2d 109[12], Time and again our appellate courts have ruled that the jury has an extraordinarily wide discretion in determining the amount of compensation in a wrongful death action, and that such discretion should not be interfered with unless it has been clearly abused. Greenwood v. Wiseman, Mo., 305 S.W.2d 474[3]; Domijan v. Harp, Mo., 340 S.W.2d 728[14]. The trial court did not abuse its discretion in denying a new trial on this ground.

Finding no prejudicial error, the judgment should be affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court.

Accordingly, judgment is affirmed.

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


author: BRADY, Commissioner.

text:
    Warren WEINBERG, Plaintiff-Respondent, v. WAYCO PETROLEUM COMPANY, Defendant-Appellant.
    No. 32328.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.

      Armstrong, Teasdale, Kramer & Vaughan, Edwin S. Baldwin, St. Louis, for defendant-appellant.
    James D. Keast, Morris Rosenthall, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This action was originally filed in the magistrate court of the City of St. Louis where the plaintiff was awarded judgment. Upon appeal to the circuit court, a jury being waived, the plaintiff again prevailed and was awarded a judgment of $500.00. This appeal follows the trial court’s action overruling defendant’s timely after-trial motions. We will refer to the respondent by his designation in the trial court and to the defendant-appellant as Wayco.

There is no dispute between the parties as to the facts. Plaintiff was the holder of a “Parkard” issued by Wayco for which he paid $10.50 per month and which entitled him to park his automobile at Wayco’s garage located at Euclid and Audubon in the City of St. Louis. This garage had five stories and entrance was gained by inserting the “Parkard” into a slot causing the entrance gate to open. This was a so-called “self-park garage” and there were no attendants on duty at the time plaintiff parked his automobile at about 11:30 p. m. on September 25, 1962. After securing admission to the garage with the Parkard, plaintiff parked his own car, locked it, and took the keys with him. He did not see nor speak to anyone. When he returned to his automobile in the evening of September 27th, he found it had been broken into and certain personal property stolen from it. The automobile had not been moved.

The “Parkard” states: “This card licenses the holder to park one automobile in this area at holder’s risk. Lock your car. Li-censor hereby declares himself not responsible for fire, theft or damage to or loss of such automobile or any article left therein. Only a license is granted hereby, and no bailment-is created.” Plaintiff testified that prior to this occurrence he had read this language on the card and knew what it said.

Before proceeding to decide the essential issue here presented, one other matter should be disposed of. The plaintiff’s petition contained the allegation that he suffered “ * * * loss and damage all as a direct and proximate result of the negligence of the defendant.” While its position in this regard is not as clearly stated as we would wish, Wayco deals with this allegation as an attempt to state an alternative claim based upon a theory of negligence and has briefed and argued this case as if plaintiff had proceeded upon these alternative theories stating that its burden is to show that plaintiff could not recover under either theory. Wayco misconstrues this allegation of the petition. Plaintiff’s only theory of recovery was bailment. The allegation of the petition above referred to was not an attempt to state a separate cause of action based upon negligence but was an effort to allege that Wayco was guilty of negligence in keeping the terms of the bailment which plaintiff alleged existed in this case; i. e., in not preserving the automobile and its contents intact for redelivery to the plaintiff. By alleging this negligence in general terms the plaintiff, upon proof of his loss, raised a presumption of negligence under the res ipsa loquitur doctrine and thus shifted the burden of going forward with the evidence to the alleged bailee, Wayco. Nuell v. Forty-North Corp., Mo.App., 358 S.W.2d 70, l. c. [6, 7], p. 76. That was the purpose and effect of the allegation Wayco misconstrued. There is only one issue presented in this appeal and that is to determine whether the relationship between the parties was, as plaintiff contends, that of bailee and bailor.

With respect to cases involving automobiles and the contents thereof when loss occurs after the automobile is left in a parking lot, the relationship between the parties is usually one of bailment or license, and whether it is one or the other depends upon the circumstances of the particular case and especially upon the manner in which the parking lot in question is being operated and with whom control of the allegedly bailed article or articles is vested. The obligations of the parties flow from the relationship (bailment or license) once it is established. 24 Am.Jur., Garages, Parking Stations, and Liveries, § 29, p. 493, 1965 Supplement, Note 2.

A “bailment” in its ordinary legal sense imports the delivery of personal property by the bailor to the bailee who keeps the property in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished or that the property shall be kept until the bailor reclaims it. 8 Am.Jur.2d, Bailments, § 2, p. 906. This court has said that “ * * * the term ‘bailment’ * * * signifies a contract resulting from the delivery of goods by bailor to bailee on condition that they be restored to the bailor, according to his directions, so soon as the purposes for which they were bailed are answered.” Nuell v. Forty-North Corp., supra, 358 S.W.2d l. c. 75, citing Samples v. Geary, Mo.App., 292 S.W. 1066, l. c. 1067. We need not examine all the elements of bailment to determine whether or not the relationship exists in the instant case. In Suits v. Electric Park Amusement Co., 213 Mo.App. 275, 249 S.W. 656 at l. c. 657 it was held “ * * * there must be a delivery to the bailee, either actual or constructive. * * * It has been held that such a full delivery of the property must be made to the bailee as will entitle him to exclude for the period of the bailment the possession thereof, even of the owner. * * * ”

It is obvious from the facts in the instant case that there was no delivery to Wayco sufficient to create the relationship of bailee and bailor between the parties here involved. Cases of the nature here involved are to be distinguished from those where the parking operation is such that the attendants collect a fee and assume authority or control of the automobile by parking it and/or retaining the keys so that the car can be moved about to permit the entrance or exit of other automobiles and where the tickets that are given to the owner of the automobile are issued for the purpose of identifying the automobile for redelivery. In such instances a bailment relationship is almost invariably held to exist. See 24 Am. Jur., Garages, Parking Stations, and Liveries, 1965 Supplement, Note 1, p. 70. See also the annotation in 131 A.L.R. beginning at 1204. In the instant case Wayco never secured control or authority over the plaintiff’s automobile. No agent or employee of Wayco parked it or kept the keys to it or issued any ticket whereby the automobile could be identified by comparison of a portion of the ticket left with the automobile when it was parked. The plaintiff parked his own automobile, locked it, and took the keys with him. Certainly Wayco, the alleged bailee, did not have the right under these circumstances to exclude the purposes of the owner or even of anyone else who might have had the keys. In the instant case the plaintiff never made a delivery, actual or constructive, of the automobile to Wayco under circumstances leading to the creation of a bailee-bailor relationship between them. Other jurisdictions where the factual situations present have been similar to the instant case have ruled that no báilment was created. See Porter v. Los Angeles Turf Club, Inc., 40 Cal.App.2d Supp. 840, 105 P.2d 956; Frum v. Yonkers Raceway, Inc., Just.Ct., 204 N.Y.S.2d 422. The general principle of law that is determinative in the instant case is stated in 24 Am.Jur., Garages, Parking Stations, and Liveries, § 29, 1965 Supplement, Note 2, as follows: “The defendant parking lot proprietor has almost -invariably been held not liable for loss or damage to cars left on his parking lot, where his lot is one in which attendants collect fees, merely designating the place to park, and the driver of the car usually parks his car himself, without any actual delivery to or redelivery by the proprietor of the parking lot, the car being locked or not as the driver wishes, and no tickets being ordinarily issued by the parking lot proprietor. While in one or two cases, the courts have spoken of a bailment relationship, such discussion may be considered as dicta, inasmuch as, in these cases, the liability of the parking lot proprietors was held to be determined upon special contracts existing between the said proprietors and the owners of cars left on the parking lots. Anno: 131 ALR 1204.” In the instant case there is no proof of any special contract regarding the creation of a bailment relationship. In fact the only evidence of that nature is the “Parkard” which by its terms, read and understood by the plaintiff, expressly negated the creation of any such relationship.

Of course, if Wayco was not a bailee of the plaintiff’s automobile, it was not a bailee of the contents. Cases where the courts, having found a bailment of the automobile to exist, proceed to rule upon the liability of the bailee for loss of or damage to the contents may be found collected in 27 A.L.R.2d beginning at 798.

The plaintiff relies upon Phoenix Assurance Co. of New York v. Royale Investment Co., Mo.App., 393 S.W.2d 43 and Nuell v. Forty-North Corp., supra, both decisions of this court. It is true that in both cases the owner removed the keys from his automobile, but it is also true that in each of those cases the owner left his automobile in a condition so it could be driven by an attendant without the keys and actually turned the automobile over to another who was to park it for him. The authority or control over the automobile by the parking attendant was clear and uncontradicted in each of those cases in which we held a bailment relationship to exist. The delivery of the automobile involved in the Nuell and Phoenix cases was the “full delivery” referred to by the court in Suits v. Electric Park Amusement Co., supra. That is the factor that distinguishes those decisions from that we reach in the instant case. In the instant case there was no such delivery.

The judgment must be reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the defendant.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment Is reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the defendant.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Leo KING, Jr., Defendant-Appellant.
    No. 32109.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.

      William P. Russell, St. Louis, for defendant-appellant.
    Lawrence Lee, Pros. Atty., St. Louis, James I. Bucher, Allen I. Harris, Asst. Pros. Attys., for plaintiff-respondent.
   BRADY, Commissioner.

The defendant was tried upon an information which alleged that he unlawfully and intentionally stole two items of merchandise of a total value of $2.00 from a retail store located in the City of St. Louis. The jury found the defendant guilty and sentenced him to sixty days in the workhouse. He appeals.

There is no serious dispute as to the facts. A store detective observed the defendant lean over a meat counter in the store, unbutton his jacket, and place two packages of meat inside the jacket. The detective went to the store manager and reported what he had observed. In the meantime the defendant had proceeded to the checkout counter where he paid for a bottle of wine. The store manager then asked the defendant if he had anything else to check out, and the defendant answered that he had not. The store manager repeated the question several times and each time received the answer from the defendant that he had nothing else to check out. The store manager then told the defendant that he wanted to speak with him and the defendant was escorted to the back of the store. Upon reaching the rear of the store the defendant took the packages of meat out of his jacket and stated, “You have your meat, now let me go” and tried to leave. He was restrained until the police appeared. The defendant then said he would pay for the packages of meat and leave but was taken to the police station and booked.

The defendant’s testimony was that when he came to the check-out counter, he laid the two packages of meat and the bottle of wine on the counter and gave the manager a ten dollar bill to pay for them; that he was given his change and then asked to step to the rear to talk to the manager; and that upon reaching the rear of the store the manager told him to lay his purchases out and called the police.

During the assistant prosecuting attorney’s opening statement, the following occurred: “MR. BUCHER: The State will further show you that the officer, patrolman James Metcalf, who has since resigned from the force is unavailable. I might add at this point, though, that there is a patrolman Alexander Catron who is also endorsed as a witness for the State. I interviewed Mr. Catron personally — MR. RUSSELL: I am going to obj ect to any testimony on the part of the Prosecutor. MR. BUCHER: At this point, let me point out that police officer — THE COURT: Let me rule on the objection, Mr. Bucher. MR. BUCHER: All right. THE COURT: The objection will be sustained. MR. BUCHER: Well, at any rate, patrolman Catron had little or nothing to do with it, so I have not produced him in Court. MR. RUSSELL: I am going to obj ect again. THE COURT: Oh, certainly; certainly. Sustained. MR. BUCHER: Well, he is not present, ladies and gentlemen. MR. RUSSELL: The same objection. THE COURT: Sustained.”

That portion of Instruction No. 3 relating to reasonable doubt reads as follows: “You are further instructed that the information contains the formal statement of the charge, but is not to be taken as any evidence of the defendant’s guilt. The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the State. If, however, this presumption has been overcome by the evidence, and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to convict. If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of his innocence.'

The defendant raises three allegations of prejudicial error. He first contends that “the testimony of the prosecuting witnesses was conflicting, misleading, and confusing.” Secondly, he urges the trial court erred in not declaring a mistrial due to remarks made during the State’s opening statement as to the availability of certain police officers. Lastly, he contends the trial court erred in giving that portion of Instruction No. 3 dealing with reasonable doubt for the reason it gives, in defendant’s words, “a roving commission to the jury.”

With regard to the defendant’s first allegation of prejudicial error it should be noted that “On appeal this court does not undertake to determine the credibility of witnesses or to weigh the evidence in a criminal case.” State v. Williams, Mo., 376 S.W.2d 133, l. c. 136. Specifications of prejudicial error worded in the fashion of defendant’s first allegation of error are insufficient to afford any relief to defendant on appeal. State v. Williams, supra. However, we can determine whether there was substantial evidence, if believed by the jury, to sustain the verdict. State v. Missey, Mo., 234 S.W.2d 777. Disregarding the language in which the allegation of prejudicial error is couched and giving an ex tremely liberal interpretation to the argument found in defendant’s brief with regard to that allegation, we will consider this allegation of error as presenting the issue of whether the evidence was substantial and sufficient to sustain the verdict of guilty. In this regard we need only refer to the testimony of the store detective and the store manager. The detective testified that he saw the defendant place two packages of meat in his jacket. The manager testified that the defendant did not pay for these packages of meat but paid only for a bottle of wine and denied that he had anything else to pay for. Both the detective and the manager testified that upon being taken to the rear of the store the defendant took the packages of meat out of his jacket and attemped to leave. This constitutes substantial evidence which, since it was believed by the jury beyond a reasonable doubt, would sustain a verdict of guilty.

As is apparent from that portion of the assistant prosecuting attorney’s opening statement set out earlier in this opinion, the trial court sustained the defendant’s objections to the remarks which he now complains should have resulted in a mistrial. That is the extent of the relief the defendant requested. He did not ask that a mistrial be declared nor for any other relief. He contented himself with making the objection and having it sustained by the trial court. Under these circumstances we need not rule whether the remarks were indeed so objectionable as to require the trial court to declare a mistrial as, in any event, defendant cannot now demand relief he did not request of the trial court which, in fact, granted him all the relief he requested.

Concerning his last allegation of prejudicial error, the defendant’s argument is, to quote from his brief, “Since that time [the date of the decision in State v. Nerzinger, 220 Mo. 36, 119 S.W. 379] the court has continuously admonished the circuit courts to adhere to the instruction as approved in the State v. Nerzinger (supra).” He urges that “[i]n this case the instruction as given does not follow the instruction of the State v. Nerzinger. * * * ” In point of fact there is no real or essential difference between the instruction given in that case and the language which defendant here attacks. In any event, as stated in State v. Nerzinger at 119 S.W. 379, l. c. 383, “ * * * the question is, after all, whether this instruction was prejudicial to the defendant.” Defendant does not set forth, in specification or argument, in what manner he finds this instruction prejudicial, other than the allegation it gives “a roving commission to the jury.” While we are not certain what that attack, used in the reference of this particular instruction, contemplates, suffice it to say we do not find defendant was prejudiced by the giving of this instruction.^ It is, to all intents and purposes pertinent to this appeal, identical to the instruction approved in State v. Caffey, Mo., 365 S.W.2d 607, at l. c. 611. The judgment is affirmed.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of this court.

The judgment is affirmed.

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


author: WOLFE, Presiding Judge.

text:
    Idolos SANDERS, Plaintiff-Respondent, v. Charlotte NIXON, Defendant-Appellant.
    No. 31913.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.

      Ralph K. Soebbing and Mueller & Rieth-mann, St. Louis, for defendant-appellant.
    Irving L. Cooper, Cupples, Cooper & Haller, Clayton, for plaintiff-respondent.
   WOLFE, Presiding Judge.

This is an action for damages arising out of personal injuries alleged to have been sustained when an automobile driven by defendant came into collision with an automobile driven by the plaintiff. There was a verdict and judgment for the plaintiff in the sum of $1,500.00 and the defendant prosecutes this appeal.

The collision occurred at the intersection of Hodiamont and Bertha Avenues in the City of St. Louis. Hodiamont Avenue is a north and south thoroughfare and it is intersected from the west by Bertha Avenue which ends at Hodiamont and thus forms a “T” intersection. It was a rainy day and plaintiff was driving his aunt’s car north on Hodiamont Avenue. He was traveling at an estimated speed of ten miles per hour as he entered the intersection. When he reached a point about even with the projected center of Bertha Avenue, his car was struck on the left front fender by the right front fender of defendant’s car which was making a left turn from Bertha to go north on Hodiamont. Plaintiff did not see defendant’s car until a moment before the collision when it was about two feet from his car.

There is a stop sign for eastbound traffic on Bertha Avenue where it enters Hodia-mont. The defendant testified that she brought her car to a stop at the sign. She signaled for a left turn and the southbound car on Hodiamont stopped to let her proceed into Hodiamont. She looked to her right and saw no car in the northbound lane for one hundred fifty feet. She then proceeded and as she entered the northbound lane of Hodiamont Avenue she was struck by the car plaintiff was driving. She said that her car was hit with sufficient force to bounce it back and make it hit the southbound car which had stopped for her left turn. In view of the conclusion we have reached it will not be necessary to set out in further detail the evidence relating to the collision.

After the collision the plaintiff got out of the car he was driving and went to a tavern and called the police. He had no cuts or bruises and did not limp. He said nothing to the police officer who responded to his call about being injured or hurt in any way. The car could not be operated but he managed to get it to the parking lane and walked to a bus stop. He said that he walked two or three blocks and that his knee started hurting and that he had a headache. He said that his knee continued to bother him, and about six days later he went to a doctor. The doctor testified that plaintiff had a sprained knee and there was some swelling of the soft tissue of the knee joint. The doctor also testified that the plaintiff said when he was being examined shortly before trial that his knee still hurt and the doctor concluded from this that the injury was permanent.

The defendant testified that two or three days after the collision the plaintiff telephoned her twice. In these conversations the plaintiff told her that if she did not pay for the damage to the car he had been driving she would have a big law suit. He said nothing about any personal injuries.

The defendant asserts here that the court erred in refusing to give an instruction that she offered. It is as follows:

“The Court instructs the jury that if you find and believe from the credible evidence that the plaintiff Idolos Sanders was not injured on the occasion in question the plaintiff cannqf recover herein and your verdict must be for the defendant Charlotte Nixon.”

A verdict directing instruction given at plaintiff’s request contained in it the requisite finding that the plaintiff was injured. The above quoted instruction was simply a converse of an essential element of the plaintiff’s verdict directing instruction. In Schaefer v. Accardi, Mo., 315 S.W.2d 230, the court approved a converse instruction exactly like the one here refused. The court in that case went on to say, l. c. 234:

“ ⅜ * * The defendant can submit what is known as a converse instruction, and in doing so can ‘submit either the exact converse of plaintiff’s verdict-directing instruction, Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, or the exact converse of any essential element of such instruction. Reger v. Nowotny, Mo.Sup., 226 S.W.2d 596; McCarty v. Milgram Food Stores, Inc., Mo.Sup., 252 S.W.2d 343; Oshins v. St. Louis Public Service Co., Mo.Sup., 254 S.W.2d 630. When either is done the result is what is referred to as a “true converse instruction,” and such an instruction does not require affirmative testimony in support of it. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464.’ Liebow v. Jones Store Company, Mo.Sup., 303 S.W.2d 660, 662 [5]. * * *”

See also Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95, l. c. 102; Shanklin v. St. Louis Public Service Company, Mo.App., 370 S.W.2d 649 and Alberty v. Sunshine Biscuit Company, Mo., 321 S.W.2d 418, l. c. 422, wherein the Supreme Court stated:

“ * * * A short, clear converse instruction which makes plain to the jury a single essential fact issue, upon which their verdict must depend, is to be commended.”

That is the type of instruction which we have here. For the reasons stated we conclude that the court erred in refusing to give the converse instruction offered by the defendant.

Some points are raised in relation to the plaintiff’s verdict directing instruction. Since the cause must be retried because of the error noted, and since upon retrial the instructions provided by M.A.I. must be used, no useful purpose would be served by passing upon the points or discussing the instruction questioned.

The judgment is reversed and cause remanded for a new trial.

ANDERSON, J., and L. F. COTTEY, Special Judge, concur.

RUDDY, J., not participating.


author: ANDERSON, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. William A. OGLE et al., Mabel Humphrey and Frank B. Humphrey, Defendants-Appellants.
    No. 32202.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.

      Walter S. Berkman, St. Louis, for defendants-appellants.
    Edwin B. Brzezinski, Kirkwood, Robert L. Hyder, Jefferson City, for plaintiff-respondent.
   ANDERSON, Judge.

This is a condemnation suit brought by the state at the relation of the State Highway Commission of Missouri, to acquire property for the construction of Interstate Route 55. A portion of defendants’ property, located in south St. Louis, was appropriated in this action. Located on said land was a four family flat known as 5500-02 Minnesota Avenue. Defendants’ land, upon which this building was situated, contained 5,675 square feet. The taking by the state was on August 13, 1962, the amount being 1,844 square feet off the front of the property. This left defendants a total of 3,831 square feet of land. Inasmuch as e portion of the building was within the land area appropriated, a temporary demolition easement was also taken and the entire building was removed from the site. The Commissioners appointed by the Court awarded defendants total damages of $21,-500.00. This amount was paid into the registry of the Court. Plaintiff filed exceptions to the award. The matter was thereafter tried to a jury in the Circuit Court resulting in a verdict in the sum of $19,500.00. Judgment in favor of plaintiff was then entered for $2,000, plus interest. The principal amount was the difference between the sum paid into Court by plaintiff, $21,-500.00, which defendants had withdrawn, and the amount awarded by the jury. Interest was also allowed in favor of plaintiff making a total judgment of $2,277.66. Costs were assessed against defendants. From this judgment defendants have appealed.

The only issue presented for the trial court’s determination was the issue of just compensation for the taking and damage to defendants’ property. The only issue on this appeal is whether the court erred in failing to sustain an objection to a question put to Walter L. Sandner on cross-examination calling for the sale price of the remaining land which sale took place about four months after the taking. Sandner was the real owner of the property; defendants being mere straw parties. The objection was overruled and Sandner in answer to the question stated he sold the remaining land for $2,500.00. On direct examination, he had testified that said land was worth only $750 at the time of taking.

Walter L. Sandner was the first witness for defendants. On direct examination, he testified he was in the real estate business and had been so engaged for thirty-five or thirty-seven years. He gave testimony with respect to his experience in selling property in the area where the property in question was located and identified photographs of said property. He stated he was the owner of the property but for convenience kept title in the name of his sister, Mabel Humphrey and her husband Frank B. Humphrey. He described the property as a four family flat, gave the number of rooms, etc., and stated he had owned it for twenty years or more; that he had no trouble keeping it fully occupied and received around $200 a month in rent for the four apartments. He further testified he had sold other property he had owned in the neighborhood. He described these properties. He also stated he was familiar with other similar pieces of property in the area that had been sold, and had made inquiries from the people who had bought and sold same as to the selling price of each. He then, over objection, gave testimony as to the selling price of each. The following testimony then appears in the transcript:

“Q. Based upon your experience in the real estate business, in buying and selling property, I’ll ask you sir, to tell us as of August 13, 1962, what, in your opinion, was the fair and reasonable market value of the Minnesota property before it was taken ?
“A. It was worth twenty-four thousand five hundred.
“Q. Now, they left you some thirty-eight hundred feet. I will ask you, sir, what was the fair, reasonable market value of that thirty-eight hundred feet that was left you ?
“A. Well, I suppose it was worth about seven hundred fifty dollars.
“Q. That would make your total damages the difference between twenty-four thousand five hundred and seven hundred fifty?
“A. That’s right.”

Mr. Sandner was cross-examined at some length but the part material to the issue on this appeal relates to the sale by him of the remaining 3,831 square feet. He testified that it was sold in December, 1962, about four months after the taking. There then appears the following:

“Q. How much did it sell for?
“Mr. Berkman: Just a minute before you answer that, after the taking, and after the improvement comes in, unless it can be shown that it was a fair sale, an arms length sale between the persons who didn’t have to buy, I don’t think its admissible.
“Mr. Brzezinski: * * * We are talking about what the after value was and I think this is the best evidence of that.
“Mr. Berkman: You can’t show how the property has been improved with the Highway Department in front of it.
“The Court: The objection will be overruled.
“Q. (By Mr. Brzezinski) What did you receive for that property, Mr. Sand-ner ?
“A. Twenty-five hundred.”

The objection attempts to raise the principal point urged in this Court that the testimony was not admissible because the evidence (later introduced) shows that the sale was not a fair sale at arms length in the open market, because the purchaser was the only person who could have any use for the land and was compelled to buy at an excessive price in order to provide a frontage for his property.

Defendants’ next witness was Mr. M. J. Slonim, who was a realtor, real estate consultant, and an appraiser. He had been in that business for approximately forty years. Since his qualification as an expert witness is not questioned, we deem it unnecessary to refer to his testimony with reference to his experience in his business. He stated he appraised the subject property in May, 1962. He used three approaches to value, namely the replacement cost minus depreciation, income approach, and the market value or sales approach; that on the income approach, the market value of the property before the taking was $20,575.00; that by the use of the replacement cost minus depreciation approach, said value was $23,900.00; that on the comparable sales approach, the value before the taking was $23,000.00; that the 3,831 square feet remaining had some value and in his opinion based on his experience, it was worth about $750.00; that in his opinion, the before value was $23,000.00; the after value $750, with damages to defendants resulting from the taking of $22,250.

The witness when asked how he reached the figure $750.00 as the value of the remaining land, stated, “Well, there was no market for it. There was one buyer probably in the whole world for that; therefore, it was a gamble. That buyer might want to abandon the apartment, * * * might not be interested, * * * might be stubborn. When you have one buyer, from an economic standpoint, the property has no value. That buyer may die, and so we try to figure out, and its very difficult, and it is a matter of opinion, based upon your experience, we thought it had some value * * * and I came up with Seven Hundred Fifty Dollars, which we thought was a very fair, generous evaluation as of the time.”

On cross-examination, the witness gave the following testimony:

“Q. * * * Mr. Sandner did get twenty-five hundred dollars for this property? A. That’s right.
“Q. And yet you say this wouldn’t make any difference to you? A. That is not the market value, that is what somebody, one man in the world paid.”

He further testified that if he had used his income valuation approach of $20,575.00, and subtracted his after taking valuation of $750.00 from it, he would come up with total damage resulting from the appropriation of $19,825.00, and that if he had subtracted the $2500.00 Mr. Sandner had actually received, the total damage figure would have been $18,075.00.

Arthur A. Schneider testified for the plaintiff. He stated he had been in the real estate business for forty-eight years, and that approximately fifty to sixty percent of his business at the present time was appraising real estate. He was a member of the Institute of Real Estate Appraisers. He further testified that of the three methods of appraising a parcel of property such as the property here in question, the best and most reliable would be the income approach.

Mr. Stephen F. Thornton testified on behalf of plaintiff. He stated he was a real estate broker and appraiser and had been in business for eighteen years; that he was a member of the Real Estate Board, and the Institute of Real Estate Appraisers; that in his opinion, the fair market value of the subject property prior to the taking was $18,500.00; that in his opinion, the fair market value of the 3,831 square feet remaining was $3,000.00; and that in his opinion the total damage defendants sustained was $15,500.00. He further testified that after the taking, the remaining land was in a very strategic position in that it had a ninety foot frontage on Fassen Street which was the only frontage available to said land, and the only frontage to land back of it which was similarly cut off (from Minnesota Avenue) by the taking.

On cross-examination, the witness stated that there was certainly more than one possible buyer for the land remaining after the taking; that said land was an excellent investment, which could be joined with the other cut off parcels to make three excellent building lots; that one would have to take the chance that the man next door would not want to buy it; that the other tracts are to the south; that there are potential customers other than the owner next to it; that he himself would have bought it for an investment; that obtaining the land next to it was a chance he would have taken; that in determining the fair market value he felt the owners of the three .parcels involved would certainly get together and pool their interests and create three first class south St. Louis vacant building lots; that fair market value is purely a matter of what someone will pay; that any investor would have paid three thousand dollars for the land. The witness further testified:

“Q. Suppose your plans had fallen through and the people next door decided they didn’t want the piece of property and the adjoining landowner didn’t want it, then it "has no value. Is that right? * * * then this isn’t a good investment, is it ? It’s no good to anybody because you can’t build on it, isn’t that true ?
“A. It would not be a good investment, no.”

Mr. William S. Garton was called as a witness for plaintiff. He testified he had been in the general real estate business for thirty-five years and had done appraisal work for almost twenty-five years. He had appraised all types of property including four family flats in south St. Louis. He described the property in question as follows : “The property was situated on the southeast corner of Fassen Street and Minnesota Avenue. It rested on a lot forty feet some inches wide by a depth of a hundred forty feet to an alley. The lot was about three feet above the grade of Minnesota Avenue. The improvements were a four family flat, two stories, stone foundation, flat roof; it has two open vestibules, front entrances, and two open porches in the rear; the units consisted of three rooms and bath, pine floors and trim, full basement, and four separate gravid furnaces. * * * No garages.” The witness further testified that in his opinion the fair market value of the property as of August 13, 1962, was nineteen thousand dollars. He further testified that “the taking was the front part of the land * * * which is about forty feet five inches wide and I believe a depth of fifty feet, a little irregular in shape; and in the taking, of course, the building had to be taken, too. The remainder was the rear part of the lot about ninety feet of Fassen Street and with a depth of a little over forty feet.”

The witness further testified: “In my appraisal to the State Highway Department, I estimated that as a separate parcel of land it had very limited value. In the rear of the subject remainder there were several pieces of smaller property that had limited value. They were shut. There were no street frontages. I thought that if this land was assembled, if pieces were assembled with the subject property, the subject property would be the key to a very nice building site; that it would have a value of twenty-five hundred dollars or two thousand two hundred fifty dollars.”

The witness further stated that at the time he placed the foregoing valuation on the remainder he was not aware that Mr. Sandner had sold the property for twenty-five hundred dollars. In the opinion of the witness, the total damage was sixteen thousand seven hundred and fifty dollars.

On cross-examination, Mr. Garton testified that the land has limited value as a single piece of property, but did have a market value. There were small pieces of land adjoining in the rear that had no value. They were just small pieces of property, irregular shaped, and by assembling them with Sandner’s land there would result an ideal triangular building site with the base of the triangle forty feet on Fassen Street. He further testified that any real estate man could have assembled those pieces and created a nice building site.

Defendants contend it was error for the trial court to overrule their objection to the question directed to Sandner, the real owner of the premises, calling upon him to disclose the amount he received from the sale of the property remaining after the appropriation in this proceeding. Said area contained 3,831 square feet, and was sold about four months after the taking. In answer to the question, Sandner stated he received 'twenty-five hundred dollars for said land. In support of this contention, it is urged that since the sale was made to the only person who could use this land, and who under compulsion, purchased same at an excessive price in order to provide frontage for his land, said sale or purchase was not a fair sale in the open market and, for that reason, the testimony as to the amount received from the sale was not competent evidence of the market value of said land as of the date of the taking.

It is accepted law that when land is taken in the exercise of eminent domain, evidence of the purchase price is competent evidence of the market value of the land as of the time of taking, provided the purchase was voluntary in the sense that the seller and buyer were each capable and desirous of protecting his interest. There is a further qualification that the purchase be not so remote in point of time that interviewing conditions have arisen which deprive such evidence of its natural probative effect or have rendered it of questionable value. State ex rel. State Highway Commission v. Rauscher Chevrolet Company, Mo., 291 S.W.2d 89, 55 A.L.R.2d 773; State ex rel. State Highway Commission v. Schutte Investment Company, Mo., 334 S.W.2d 241. Logically, the same rules should apply where there is resale of property after a part has been appropriated in such a pro ceeding. There, of course, may be situations where evidence of such sale price would not be competent. The condition of the property might have so changed, or economic conditions affecting values might be so different as to render testimony of the resale price of no probative effect as evidence of value as of the time of taking. But whether the tests of admissibility have been substantially met, rest to a large extent in the sound discretion of the trial court. Nevertheless, evidence which is legally competent, relevant and material on the issue of market value is admissible, and should not be excluded; and unless the evidence is wholly lacking in probative value, the weight to be given it, including remoteness and change of circumstances from the date of taking to the date of sale, is for the jury under appropriate instructions.

It is further well established by the case law of this state that whether the court erred in admitting such evidence must be reviewed in the light of the circumstances existing at the time the ruling was made. State ex rel. State Highway Commission v. Henderson et al., Mo.App., 381 S.W.2d 10; State ex rel. State Highway Commission v. Rauscher Chevrolet Company, Mo., 291 S.W.2d 89; Davis v. Sedalia Yellow Cab Company, Mo.App., 280 S.W.2d 869; Malone v. Harlin, 220 Mo.App. 102, 278 S.W. 806.

In the Henderson case we said: “In the second place, the propriety of a trial judge’s ruling on the admissibility of evidence must be reviewed in the light of the circumstances existing at the time the ruling was made. If evidence is apparently competent and relevant on its face when offered, the trial judge must admit it; and he is not to be convicted of error in doing so if a showing is afterwards made that, for some reason not previously disclosed or discernible, the evidence is actually improper. It is not demanded of a trial judge that he possess the quality of prescience. And when such a subsequent showing is made and the objectionable aspect of the evidence is thereby brought to light, the party who originally obj ected to it has the opportunity, and it becomes his duty, to renew his objection to it and to move to strike it; and his failure to do so will constitute a waiver of his objection. Markow v. Gross-O’Reilly Chandelier Co., Mo.App., 190 S.W. 624, 627; State ex rel. State Highway Commission v. Rauscher Chevrolet Company, supra, 291 S.W.2d 92.”

In this case when Mr. Sandner was asked to state the price he received for the land there was nothing in the record to indicate it had appreciated in value since the appropriation or that conditions had changed so materially that the selling price could no longer be regarded as some evidence of its market value as of August 13, 1962. Nor was there anything in the record to indicate that the sale was other than a voluntary sale in the open market, or that the purchaser was, under the circumstances, forced to pay a sum in excess of the fair market value of the property, which would deprive the testimony of its quality as “some evidence” of its value at the time of the appropriation. The evidence which defendants contend robbed it of this quality came later, and if defendants thought that in the light of that evidence a sufficient showing had been made which deprived the previous testimony of all evidentiary value, it was their duty to call the court’s attention to the matter and move to strike the previous testimony on the ground that it had, by reason of the subsequent testimony, become incompetent and inadmissible. Having failed to do this, defendants may not on this appeal complain of the action of the trial court in overruling their objection to the admission of the testimony which they now claim was incompetent. State ex rel. State Highway Commission v. Henderson, supra; State ex rel. State Highway Commission v. Rauscher Chevrolet Company, Mo., 291 S.W.2d 89; the point urged here was not properly preserved for review. For that reason, the judgment is affirmed.

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