author: BRADY, Commissioner.

text:
    Fannie Lou LAWSON, Plaintiff-Appellant, v. COMMERCIAL CARRIERS, INC., a Corporation, and Harvey Lee Baxter, Defendants, Commercial Carriers, Inc., a Corporation, Defendant-Respondent.
    No. 32013.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    Rehearing Denied Jan. 19, 1966.
    Application to Transfer Denied March 14, 1966.

      Donald S. Hilleary, Clayton, for plaintiff-appellant.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel, F. Douglas O’Leary, St. Louis, for defendant-respondent.
   BRADY, Commissioner.

The jury returned a verdict in favor of the plaintiff and against the defendants in the amount of $15,000.00, whereupon the defendants filed motions for new trial. Both motions for new trial were overruled, but the trial court sustained the alternative motion of the defendant Commercial Carriers, Inc., for judgment in accordance with its motion for a directed verdict and entered judgment in its favor. Baxter did not file an appeal and we will refer to Commercial Carriers, Inc., as “the defendant.” The defendant’s driver will be referred to by that designation and by his name, Morris.

The plaintiff was a passenger in Baxter’s automobile traveling in a generally southwardly direction. The highway upon which they were traveling was hilly and had many curves. About four or five miles from the scene of this accident, Baxter came up behind the defendant’s tractor trailer being operated in the same direction as he was going. This vehicle was later proved to have been operated by Morris who was generally familiar with this highway having traveled it many times. It was about midnight and very dark. After following the tractor trailer for three or four miles, they came to a no passing zone marked by a yellow line as there was a curve just ahead. The highway at this point consisted of a long sweeping curve with a sharper bend in the middle of it. Baxter pulled out from behind defendant’s vehicle and drew abreast of the defendant’s vehicle when about 200 feet from this sharp curve. He then pulled ahead of the defendant’s tractor trailer and cut hack sharply to the right. Upon doing so he lost control of his vehicle and began sliding sideways down the highway in front of the tractor trailer which overtook his automobile and collided with it striking the left side. The plaintiff’s personal injuries resulted from this collision.

The specific facts set out in her brief upon which the plaintiff relies are as follows: the pavement was twenty feet wide with a lip on each side; this occurred at midnight when it was “pitch” dark; there was no sign indicating a curve except for a yellow line which indicated a no passing zone; Baxter was traveling sixty miles per hour and the defendant’s vehicle was proceeding at fifty miles per hour while Baxter was attempting to pass; Morris indicated he could stop in 1/16 of a mile; Baxter had difficulty negotiating the curve at his speed and lost control; and that Morris did not slow his vehicle prior to the time when Baxter cut in. There is no real dispute concerning these facts. However, plaintiff states and seeks to rely upon other pertinent facts that are disputed. The first of these is plaintiff’s contention that Baxter’s automobile and the defendant’s tract- or trailer were “abreast of each other for 850 feet from the point of the collision.” The defendant contends the evidence does not support that statement. The plaintiff arrives at this figure by combining Baxter’s testimony that he came abreast of the defendant’s tractor trailer when he was 200 feet from the curve with the state trooper’s testimony that the curve was 650 feet long. Those two items of testimony cannot be so combined. The undisputed testimony is that this was a long sweeping curve with a sharp bend in the middle of it. It is clear from the transcript that the trooper was speaking of the beginning of this long sweeping curve. On the other hand, Baxter was speaking of the sharp bend or curve that caused him to lose control as just previous to the testimony upon which plaintiff relies Baxter had stated he did not notice the yellow line until he got abreast of the tractor trailer, a clear indication it had begun sometime earlier, and he therefore had been into the long sweeping portion of this curve some unspecified time prior to that. He went on to describe the place he was 200 feet away from as “a sharp curve.” It is not possible to determine from this record what distance prior to the collision these vehicles traveled abreast of each other, but the evidence cannot be interpreted as supporting the statement that distance was 850 feet.

The plaintiff also asserts that although she made Morris her witness and offered his testimony as a part of her case in chief, she is not bound by his testimony as to Baxter’s position when he applied his brakes. Plaintiff does not deny that Morris testified that he applied his brakes as soon as Baxter started to cut in, but she contends that Morris testified he did not know how far in front of his vehicle Baxter was when he cut in. That view of the evidence is not substantiated when Morris’ testimony is read in context. His testimony was that the back bumper of Baxter’s automobile was about equal with the front bumper of defendant’s vehicle when Baxter “ * * * cut back sharply to the right to get in the right-hand lane * * * ” and that he immediately took his foot from the accelerator, applied his brakes “hard,” and kept them applied until the impact. Later he was asked: “Now, how far up in front of you would you say this automobile got before he started to cut sharply back into your lane, or his lane ?” His answer was: “He was so close when he cut back in I thought he was going to hit me. I couldn’t say how far he was in front of me.” It is obvious that this later testimony is not contradictory of that previously given but is merely an acknowledgment that he could not estimate in feet, yards or whatever method of measurement might be applied the distance between Baxter’s rear and his front bumper. The plaintiff is bound by Morris’ testimony that Baxter cut back to the right in front of defendant’s vehicle when Baxter’s rear bumper was approximately even or very slightly ahead of the tractor trailer’s front bumper.

The plaintiff also contends that the curve was sharp and blind. We have already commented upon the configuration of the curve finding that the evidence does sustain there was a sharp bend in the center of the long sweeping area of the curve. However, the evidence does not sustain the plaintiff’s contention that the curve was blind as to Morris. Baxter did testify that he couldn’t see around the curve when he was attempting to pass the defendant’s vehicle. Morris, however, repeatedly refused to characterize this curve as a blind curve and testified that when Baxter started to pass him, he could see that there were no lights from oncoming traffic for at least 1500 feet ahead of him. The plaintiff gave no testimony with regard to visibility around the curve or whether or not it was blind. There was no testimony regarding the various differences in heights above the highway of the driver’s seat in Baxter’s automobile as compared to that in the defendant’s vehicle or any topographical explanation given to explain why one could see while the other could not. The only conclusion that can be reached from the transcript as to this issue is that Baxter could not see around the curve while Morris could. In the absence of any other evidence showing that the curve was blind as to Morris she was bound by his testimony, given as a part of her case, that it was not blind so far as he was concerned. He was driving the defendant’s vehicle. Under these circumstances the plaintiff is not justified in having her case against the defendant considered in the light of a blind curve.

Actionable negligence consists of a duty upon the defendant to protect the plaintiff from injury, failure to discharge that duty, and injury proximately resulting from such failure, Mo. Digest, Negligence, Was Morris under a duty to slow down? The plaintiff’s theory is that he was as, under the circumstances that existed, he should have anticipated that Baxter might have some difficulty in making the curve but in spite of the difficulty would persist in his attempt to pass. Therefore, he argues, whether Morris should have slowed down when the vehicles were abreast of each other was for the jury.

When the Baxter automobile pulled out from behind defendant’s vehicle into the passing lane, Morris had three courses of action available to him. First of all, he could slow his vehicle. In 60 C.J.S. Motor Vehicles § 325, p. 754, it is stated that “[a] driver who is proceeding at a reasonable rate of speed on the proper side of the road is not under a duty to reduce his speed so that a car approaching from the rear may pass him * * * In Stakelback v. Neff, Mo.App., 13 S.W.2d 575, 1. c. 577, an intersection case where the alleged error lay in the giving of the plaintiff’s verdict-directing instruction, the court held that a duty to stop, decrease speed or change course does not arise until, in the exercise of the degree of care required of him, the driver would reasonably have been led to believe that if he did not so act a collision would occur. In Cowden v. Crippen, 101 Mont. 187, 53 P.2d 98, it was held that there was no merit in the suggestion there made that the defendant had to slow his vehicle while he was being passed. These authorities indicate that there was no duty upon the defendant’s driver to reduce his speed. In fact, there are cases that go further and hold that if he had done so, he could have been charged with negligence. In Devine v. Barton, Mo.App., 22 S.W.2d 877, 1. c. 879, this court indicated that a driver of the vehicle which is passing another and finds that the pass cannot be safely made, should stop or drop back behind the vehicle he was attempting to pass. In Thelen v. Spilman, 251 Minnesota 89, 86 N.W.2d 700, 77 A.L.R.2d 1315, it was held that the defendant could be found negligent because he slowed while the plaintiff was passing and thus made it more difficult for the plaintiff to return to his proper lane.

The second course of action available to the defendant’s driver was to increase his speed. This state has a statute which prohibits an increase in speed while being passed, § 304.016, RSMo 1959, V.A.M.S., and there are cases which clearly indicate that even under the common law it may.be negligence for a driver to speed up while being passed. For example, see Ironside v. Ironside, 188 Okl. 267, 108 P.2d 157, 134 A.L.R. 621, cited by the plaintiff.

The third, and to our mind the only safe course of action for Morris to follow under the facts of this case, was to maintain the same speed at which he had been traveling so that Baxter could make his own decision as to whether it was better to attempt to complete the pass or better to terminate his attempt to pass and dropping behind defendant’s vehicle return to the right-hand lane. To rule that, prior to that time, Morris should have adopted one of the other courses of action available to him is to require him to engage upon speculation of the wildest kind. If Morris guessed that Baxter was going on to pass despite the danger and to facilitate such action he slows up when in fact Baxter had decided to drop back, his action may prevent Baxter from getting back into a position of safety and his wrong guess may constitute negligence resulting in death or injury to the occupants of Baxter’s vehicle. If defendant’s driver guessed that Baxter was going to drop back behind him and to facilitate such action he speeds up when in fact Baxter had decided to attempt to complete the pass, his action may prevent Baxter from completing the pass and getting back into a position of safety and his wrong guess' may constitute negligence resulting in death or injury to the occupants of Baxter’s vehicle. Adoption of the plaintiff’s theory would not only require the defendant’s driver to guess Baxter’s course of action and act upon that guess, it also would penalize him if his guess would later prove incorrect. Actionable negligence should not be predicated upon a sort of Russion roulette played with motor vehicles. Morris was under no duty to change his speed as the vehicles traveled abreast of each other. Stakelback v. Neff, supra; 60 C.J.S. Motor Vehicles § 325 supra.

To rule in plaintiff’s favor would also require Morris to speculate as to at least one other matter. For example, absent some other factor, it cannot be said that there was any danger of a collision occurring between Baxter and the defendant’s vehicle as they traveled abreast of each other. Recognizing this and being cognizant that the evidence negates the existence of any oncoming traffic, plaintiff relies upon the curve, the only other factor available to her under the evidence. Yet, there is no evidence in this case indicating the curve is so inherently dangerous that its mere existence could reasonably lead Morris to assume that Baxter would not be able to negotiate it even traveling abreast of Morris. This court has held that a defendant cannot be held to be negligent for failing to anticipate a mere or remote possibility of danger to others arising from situations which he creates. Lane v. Supreme Cab Co., Mo.App., 374 S.W.2d 527. It follows this rule would be even more applicable in the instant case where Morris did not create the situation from which plaintiff contends the danger arose.

The judgment should be affirmed. The Commissioner so recommends.

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.


source: Caselaw Access Project

author: WOLFE, Presiding Judge.

license: Public Domain

text:
    William DERR, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 31858.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    Rehearing Denied Jan. 19, 1966.
    Application to Transfer Denied March 14, 1966.
    Gerald D. Morris, St. Louis, for appellant.
    Sidney Fortus, Harris, Fortus & Anderson, Clayton, for respondent.
   WOLFE, Presiding Judge.

This is an action for damages arising out of personal injuries. The injuries were occasioned when a delivery truck, which the plaintiff was driving, was struck in the rear by a bus operated by the St. Louis Public Service Company. There was a verdict and judgment for the plaintiff in the sum of $6,500 and the defendant, after an unavailing motion for a new trial, appealed.

The facts of the matter are that on January 17,1962, at about 1:20 in the afternoon, plaintiff was driving a parcel delivery truck for the Service Blue Print Company, by whom he was employed. He was southbound on 18th Street in the City of St. Louis and intended to make a right turn to the west on Chouteau Avenue. The flow of traffic at the intersection of 18th and Chouteau is controlled by lights and as the plaintiff’s truck reached the intersection the light was red and a vehicle was stopped in front of him waiting for the light to change. 18th Street has three southbound lanes and the plaintiff was driving in the west, or curb lane. Plaintiff brought his truck to a stop about half a car length behind the car ahead and waited. A bus following the plaintiff came to a stop behind the truck which plaintiff was driving.

The plaintiff testified that his truck was stopped for about fifteen seconds when the light changed to green. The car ahead ■of him moved into the intersection but had to stop because of other traffic, and the plaintiff stopped about four or five feet behind the lead car, signaling with his hand that he intended to stop. He was so stopped, with the front of his truck about one and one-half feet into the intersection and facing in a slightly southwesterly direction for about two or three seconds, when the car ahead of him started up and his truck was struck in the rear by the defendant-appellant bus. His left foot was still on the brake when his truck was hit and his head was caused to “fly backward.” He fell to the side and his right side and leg hit the floor. His left hand struck the steering wheel and was bruised, and his head hurt as did his neck and shoulders. He suffered what is called a “whiplash” injury. The impact bent the bumper bracket of the truck and dented the part of the body below the door in the rear of the truck.

A passenger who was in the bus testified that the bus came to a stop behind the truck to wait for the traffic light to change. He stated that it was six to eight feet behind the truck and when the bus started up its speed was four to five miles per hour. It struck the rear of the stopped truck. He said that he saw the plaintiff holding the left side of his neck after he got out of his truck.

The defendant called as a witness the operator of the bus who stated that he stopped his bus four to five feet behind the truck. He looked to his right to see if there were any prospective passengers on the sidewalk. While he was so looking he was “under the impression that the light had changed to green” and he stepped on the accelerator. He then realized that the truck ahead of him was not moving and he slowed down but the bus gave the truck a mild bump before it stopped. He sakLthe bus was not going more than a mile an hour at the time. A former employee of the defendant company who was a passenger on the bus testified he was seventy-six years of age and had been retired from operating the company’s buses because of his eyesight. He did not see the truck move and said that the impact was just a “bump.”

It is asserted that the court erred in refusing an Instruction offered by the defendant and designated as Instruction “A.” It is a verdict directing Instruction predicated upon a finding that there was no other vehicle blocking the path of the truck and that the plaintiff failed to give a timely warning that he was going to stop or turn. There is no doubt that a defendant is entitled to an Instruction on contributory negligence where that is within the pleadings and the evidence. Anderson v. Welty, Mo. App., 334 S.W.2d 132, and cases cited therein. Much of the Instruction refused, however, is not supported by any evidence.

There was no evidence from which the jury could have found that the plaintiff truck was not blocked by a vehicle ahead. Neither was there any evidence that a failure to signal for a right turn, which was disjunctively submitted, could have in any way contributed to the accident; nor is the hypothesized failure supported by the evidence. The only negligence shown is the negligence of the defendant driver who stated that he started his bus without looking ahead which caused it to collide with the truck in front of it. Where the defendant submits an affirmative finding of facts, the existence of which could disprove an essential fact of the plaintiff case, that submission must have factual support in the evidence. Sutton v. Fox Missouri Theatre Company, Mo., 356 S.W.2d 41. The Instruction was properly refused.

In the motion for a new trial filed by the defendant he set forth as one of his grounds the assertion that one of the jurors who tried the case made a material misrepresentation during the voir dire examination. This was buttressed by an affidavit and the court had a hearing upon the matter. It is contended here that the court erred in refusing to grant a new trial for the reason that the defendant was denied a fair trial by an impartial juror. It is asserted that:

“ * * * one of the jurors intentionally concealed the fact that two years previously he collected money from a lawsuit for personal injuries sustained in an accident even though he was asked to reveal such information to the counsel for defendant on voir dire examination.”

Near the outset of his examination of the jurors in relation to any claims they might have had, the attorney for the defendant stated:

“ * * * A claim is simply this, any time/you attempt to get money — you make a claim for money against somebody else for personal injuries, or property damage. Which might include an accident you have had on the job, or an automobile accident — or, any time you have made a claim for money from somebody else, because of alleged personal injury. Does anybody have any question about what we mean by a claim?”

He also asked the panel if any of them had hired a lawyer.

The juror here in question was a man named Fitzsimmons. He made no response to either question directed to the entire panel. A juror named Eaton told of his father being killed upon being struck by an automobile; a Mr. Horn told of an accident in which his daughter was hurt; and a Mrs. Kyro told of being hit by an automobile. Another juror told of his automobile being struck, and immediately following the juror’s answer Mr. Fitzsim-mons was asked if he or any member of his family “had such a claim.” To this Fitzsimmons answered “no.”

Fitzsimmons had worked for the Telephone Company for fifteen years as a cable splicer and had a high school education. After graduating from high school he had served in the Marine Corps. He testified at the hearing on a motion for a new trial that over two years prior to the time of the trial of the case here under consideration that, he had an accident. He had fallen on the steps of his father-in-law’s house and had broken an ankle. An insurance adjuster offered him $50.00 in settlement but he knew a young lawyer and talked to him about the matter. The lawyer gave him the impression that he did not have much of a case so he told the lawyer to see if he could get him $100. He finally received in settlement $130 and he assumed that the lawyer got something out of the case but they never mentioned the amount. He thought that the total settlement was $250. The lawyer filed the suit but Fitzsimmons denied any knowledge of this. He knew he went to a lawyer’s office and answered questions but did not know that his deposition was being taken and thought he was just giving a statement.

He said that he heard the answers of the other jurors during the voir dire examination but he thought you had a claim only when you went to court before a judge and jury. He said that he supposed he was “just stupid” in not answering the questions but that he was not in any way prejudiced in the trial of the case and had no reason to be. As stated, the judge overruled the motion for a new trial and it is contended that under the foregoing evidence he erred in so doing.

In support of its point the defendant cites a number of cases, all of which are in accord with the fundamental proposition that parties are entitled to a trial by a fair and impartial jury. The first cited case is Piehler v. Kansas City Public Service Company, 357 Mo. 866, 211 S.W.2d 459. There the offending juror failed to reveal that he had a claim against the same defendant. Next cited is Girratono v. Kansas City Public Service Company, Mo., 272 S.W.2d 278. In that case the trial court was affirmed in granting a new trial because of failure of one juror to reveal on voir dire that he had had several lawsuits. Triplett v. St. Louis Public Service Company, Mo. App., 343 S.W.2d 670, also cited, involved intentional concealment of prior lawsuit by a prospective juror. Another case cited is Lee v. Baltimore Hotel Company, 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711. It has no relation to the facts before us for in that case an interloper sat in place of a juror regularly summoned and gave a false name when interrogated. We are cited to Brady v. Black and White Cab Company, Mo.App., 357 S.W.2d 720. A motion similar to the one here under consideration was heard by a judge who had not tried the case, which fact the court considered of sufficient importance to insert in its opinion reversing an order denying a new trial.

All of the foregoing cases differ in some material respect from the one before us. Here the judge who tried the case heard the motion and vigorously questioned the juror about his failure to answer the question propounded. The trial court came to the conclusion that there was no' intentional concealment. The matter of granting a new trial under such circumstances is primarily for the trial court. It is to be decided by that court in the exercise of its sound discretion and it is reviewable only for an abuse of discretion. Duffendack v. St. Louis Public Service Company, Mo.App., 365 S.W.2d 52. An unintentional failure to disclose information as to matters not connected with the case does not, of itself, show prejudice on the part of the juror. Akers v. St. Louis Public Service Company, Mo., 370 S.W.2d 347; Davis v. Kansas City Public Service Company, Mo., 233 S.W.2d 679.

Here the court may have concluded that the juror’s concealment was unintentional for he stated that he had not been attentive and that he assumed his failure to answer was just stupid. Apparently the court believed his statement and this coupled with the fact that he misunderstood the word “claim” appears sufficient to support the judgment of the court.

We cannot say from the bare record before us that the judge who saw and questioned the juror abused his discretion.

The judgment is affirmed.

ANDERSON, J., and ROY W. Mc-GHEE, Special Judge, concur.

RUDDY, J., not participating.


author: STONE, Presiding Judge.

text:
    Thelma KISLING, Plaintiff-Respondent, v. MFA MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 8462.
    Springfield Court of Appeals. Missouri.
    Jan. 17, 1966.
    Motion for Rehearing or to Transfer Denied Jan. 31, 1966.
    Application to Transfer Denied March 14, 1966.

      Wangelin & Friedewald, Poplar Bluff, for defendant-appellant.
    Bloodworth & Bloodworth, Poplar Bluff, for plaintiff-respondent.
   STONE, Presiding Judge.

In this jury-tried case, plaintiff Thelma Kisling obtained a verdict and judgment for $8,000 under the uninsured motorist coverage afforded by an automobile insurance policy (hereinafter referred to as the policy) issued by defendant MFA Mutual Insurance Company to plaintiff. Defendant appeals.

About 2:30 P.M. on June 7, 1963, plaintiff was driving her insured 1960 Ford automobile at a speed of about thirty miles per hour in a northerly direction on the east (her right-hand) side of the center line of the two-lane, twenty-foot concrete roadway on U.S. Highway 67 near Poplar Bluff, Missouri. The weather was clear and the roadway was dry. As Albert Mangrum, subsequently identified as an uninsured motorist, approached from the north, southbound on Highway 67, plaintiff observed that he “was weaving but . . . was still in his lane of traffic”; but, when the two vehicles were only a few feet apart, Mangrum “jerked over” the center line and, as plaintiff “whipped” her automobile to her right, the left front portion of Mangrum’s southbound Chevrolet collided with the left front portion of plaintiff’s northbound Ford.

Another motorist, Cora Brent, northbound in her Rambler automobile, was following plaintiff at a distance which plaintiff declined to estimate upon trial but, in a deposition, had approximated at “about a car’s length.” Whatever the precise intervening distance may have been, within “a second or two or three” after the southbound Mangrum Chevrolet collided with the front end of plaintiff’s Ford, the northbound Brent Rambler ran into the rear end of it.

By the time Trooper Link of the Missouri State Highway Patrol reached the scene of accident “shortly after it happened,” Mangrum had departed in his Chevrolet, the damage to which was confined to a “bent” left front fender. Link immediately went in search of Mangrum who, when located at a store more than a mile distant, “was intoxicated.” Returning to the scene of accident, Link found all of the debris in the northbound lane on the east side of the center line of the highway, and both plaintiff’s Ford and the Brent Rambler on the east shoulder headed north, with skid marks twenty feet in length leading to the Ford and skid marks sixty feet in length leading to the Rambler. Link estimated the damage to the front end and the rear end of plaintiff’s Ford at $150 and the damage to the front end of the Brent Rambler at $200.

Twelve days after the accident, to wit, on June 19, 1963, and before her attorneys knew that Mangrum was uninsured, plaintiff instituted in the Circuit Court of Butler County a damage suit for personal injuries styled Thelma Kisling, plaintiff vs. Albert Mangrum and Cora Brent, defendants (hereinafter referred to as the damage suit). In due time, an answer was filed on behalf of defendant Brent by attorneys employed by her liability insurance carrier, and answer and counterclaim were filed on behalf of defendant Mangrum by an attorney of his choice, who informed plaintiff’s attorneys that Mangrum was uninsured. Thereupon, by letter dated July 8, 1963, plaintiff’s attorneys advised MFA that defendant Mangrum had filed a counterclaim in the damage suit, enclosed a copy thereof, requested that MFA (under the liability coverage afforded by the policy) defend against Mangrum’s counterclaim, notified MFA that Mangrum was an uninsured motorist, and pointed out that the policy afforded uninsured motorist coverage which “would apply” to Mangrum. Shortly thereafter, Poplar Bluff attorneys employed by MFA filed in the damage suit a reply to the counterclaim of defendant Mangrum. “On several occasions” plaintiff’s attorneys inquired of the MFA attorneys “about the possibility of settling” plaintiff’s claim under the uninsured motorist coverage afforded by the policy, and the latter made what plaintiff’s attorneys regarded as “a nominal offer,” the amount of which was not fixed in the record more definitely than that it was less than $1,200.

After the damage suit had been pending for several months, one of plaintiff’s attorneys informed the MFA attorneys “that I was going to settle by way of a covenant not to sue with the insurance carrier of Cora Brent” and then proceed directly against MFA under uninsured motorist coverage. On May 15, 1964, plaintiff did settle with defendant Brent, received $1,800 in cash from her liability insurance carrier, and executed a formal covenant not to sue her. Thereafter, the damage suit was dismissed without prejudice as to defendant Brent on June 1, 1964, and as to defendant Mangrum on June 23, 1964; and, on the latter date, defendant Man-grum dismissed his counterclaim in the damage suit without prejudice.

In the meantime, to wit, on May 27, 1964, plaintiff had instituted this action against MFA under the uninsured motorist coverage afforded by Part V of the policy, whereby MFA contracted to “pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured . . . provided, that determination as to whether the insured . is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured . . . and [MFA] or, if they fail to agree, by arbitration.” In its answer, MFA pleaded that, by virtue of the aforesaid settlement of plaintiff’s claim against Cora Brent without the prior written consent of MFA, she (plaintiff) was precluded from recovery in the instant suit by the “Exclusion” in Paragraph 4(b) of Part V of the policy (hereinafter referred to as the consent exclusion), which provides that the uninsured motorist coverage “does not apply ... to bodily injury to an insured with respect to which such insured . . . shall, without the written consent of [MFA], make any settlement with, or prosecute to judgment any action against any person or organization who may be legally liable therefor.” And, on this appeal, MFA’s sole point is that the trial court erred in refusing to direct a verdict for MFA, because “plaintiff, having executed a covenant not to sue the insured motorist [defendant Brent in the damage suit] without the written consent of [MFA], was excluded from the benefit of uninsured motorist insurance coverage” in the policy. Under this point, counsel argue (a) that plaintiff’s execution of a covenant not to sue Cora Brent constituted a “settlement” with her (which plaintiff does not, and could not well, deny) and (b) that the language of the consent exclusion is clear and unambiguous and the trial court’s refusal to direct a verdict for MFA “had the effect of rewriting the contract of insurance.”

On the other hand, plaintiff undertakes to escape from the consent exclusion and to support the trial court’s ruling on three grounds, to wit, (1) that the consent exclusion was applicable only as to any settlement with uninsured motorist Mangrum, (2) that the consent exclusion “is void because it is against public policy and seeks to oust jurisdiction of the courts,” and (3) that, “by refusing to negotiate a settlement [of plaintiff’s claim under uninsured motorist coverage] or defend Mangrum in the original [damage] suit,” MFA “waived” the consent exclusion and “is estopped” from relying thereon. We treat of these seriatim.

Was the consent exclusion applicable only as to any settlement with uninsured motorist Mangrum? We recognize the general principle, upon which instant plaintiff relies, that, insofar as the language of an insurance policy may be ambiguous, i. e., fairly and reasonably “susceptible of interpretation in opposite ways” [State ex rel. Northwestern Mut. Life Ins. Co. v. Bland, 354 Mo. 391, 402, 189 S.W.2d 542, 549(23), 161 A.L.R. 423; J. E. Blank, Inc. v. Lennox Land Co., 351 Mo. 932, 957, 174 S.W.2d 862, 868], that interpretation most favorable to the insured must be adopted. See cases collected in 16 West’s Missouri Digest, Insurance, subd. b. But this principle does not authorize courts, under the guise of interpretation or construction, to alter or rewrite a policy [Forir v. Toman, Mo., 202 S.W.2d 32, 34 (4); Ward v. Gregory, Mo.App., 305 S.W.2d 499, 503-504; Gage v. Connecticut General Life Ins. Co., Mo.App., 273 S.W.2d 761, 763(3), 47 A.L.R.2d 1234] or to change its meaning by a perversion of language or by conjuring up an ambiguity. Aetna Life Ins. Co. of Hartford, Conn. v. Durwood, Mo., 278 S.W.2d 782, 786(3); Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 435, 222 S.W.2d 76, 78(1); Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 370, 1 S.W.2d 99, 102, 57 A.L.R. 615. And, where there is no ambiguity and thus no room for interpretation or construction, the unequivocal language of the policy must be given its plain meaning and the terms of the contract must be enforced. State ex rel. Mutual Ben. Health & Acc. Ass'n. v. Shain, 350 Mo. 422, 427, 166 S.W.2d 484, 487(1); State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 627, 127 S.W.2d 675, 676(2); State ex rel. Mutual Ben. Health & Acc. Ass’n v. Trimble, 344 Mo. 920, 925, 68 S.W.2d 685, 687(1).

The plain and positive language of the consent exclusion makes the uninsured motorist coverage inapplicable to bodily injury with respect to which the insured shall, without the prior written consent of MFA “make any settlement with . any person or organization who may be legally liable therefor.” (All emphasis herein is ours.) Other courts have found the language of the consent exclusion to be clear and unambiguous [Oren v. General Acc. Fire & Life Assur. Corp., Fla.App., 175 So.2d 581, 582 (1965); Travelers Indemnity Co. v. Kowalski, 233 Cal.App.2d 607, 43 Cal.Rptr. 843, 845-846 (1965)], and so do we. Plaintiff’s principal instruction directed a verdict for her if the jury believed (1) that “Mangrum drove on the wrong side of the road,” (2) that such conduct was negligent, and (3) that, “as a direct result of such negligence, plaintiff sustained damages for which she has not been fully compensated by Cora Brent.” And, in his closing argument to the jury, plaintiff’s counsel frankly stated that, although Mangrum “started the whole thing by coming over that center line,” there was “no question but what Cora Brent was negligent” — “of course she was at fault”— “they are both liable . . . and that is why I sued them both together” in the damage suit, and “she [defendant Brent] was negligent and her insurance company paid $1,800 in settlement of their part of the case.” Plaintiff’s contention that the consent exclusion was applicable only as to any settlement with uninsured motorist Mangrum must be rejected.

Is the consent exclusion “void because it is against public policy and seeks to oust jurisdiction of the courts?” By its terms, the consent exclusion makes uninsured motorist coverage inapplicable in either of two situations, i. e., where, without the written consent of MFA, the insured shall (1) “make any settlement with” (hereinafter referred to as the settlement prohibition) or (2) “prosecute to judgment any action against” (hereinafter referred to as the judgment prohibition) “any person or organization who may be legally liable” for the insured’s injury. We have no doubt but that the judgment prohibition is invalid and unenforceable in this jurisdiction. That was our conclusion in State ex rel. State Farm Mutual Auto. Ins. Co. v. Craig, Mo. App., 364 S.W.2d 343, 95 A.L.R.2d 1321, where, after pointing out that the arbitration provision in the policy under review in that case (and there is a similar arbitration provision in the instant policy) did not prevent institution of suit by the insured against the uninsured motorist [V.A.M.S. § 435.010], our opinion continued: “We think further that the ‘consent’ exclusion as a bar to suit must fall along with the arbitration clause. The exclusion would reasonably be applicable in situations where arbitration is required [and valid]; but, where this is not the case, it would be against public policy to permit a prohibition against resort to the courts for remedy without the consent of the person ultimately liable.” 364 S.W.2d at 346.

However, MFA’s defense of the case at bar is predicated upon the settlement prohibition, not the judgment prohibition. As evidenced by the emphasized portions thereof, the above-quoted statement from Craig, supra, concerning the consent exclusion was carefully limited to validity of the judgment prohibition [364 S.W.2d at 346], and in the last paragraph of Craig, supra, we emphatically emphasized that "we express no opinion and intend no holding except as applied to the specific situation before us.” 364 S.W.2d at 349. Instant plaintiff has cited, and our exhaustive research has disclosed, no reported case in this or any other jurisdiction in which the insurer’s defense has rested upon the settlement prohibition or in which the validity of that prohibition has been discussed.

This brings us to the observation that the settlement prohibition is not necessarily invalid simply because the judgment prohibition is invalid. Whether both of these prohibitions (disjunctively stated in the consent exclusion) must fall because of the invalidity of the judgment prohibition depends upon the divisibility or separability of the two prohibitions. With respect to contracts which contain a forbidden or invalid provision, our Supreme Court at an early date declared “the general rule to be, that if the good be mixed with the bad, it shall nevertheless stand, provided a separation can be made. The exceptions are, where a statute, by its express terms, declares the whole instrument or contract void on account of some provision which is unlawful; or where there is some all-pervading vice, such as fraud, or some unlawful act which is condemned by public policy or the common law, and avoids all parts of the transaction because all are alike infected.” Koontz v. Hannibal Savings and Ins. Co., 42 Mo. 126, 129(1). And it is said that the “essential test” in the determination of divisibility “ ‘can be nothing else than the answer to an inquiry whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever if any promise or set of promises were struck out.’ ” Swinney v. Continental Bldg. Co., 340 Mo. 611, 626-627, 102 S.W.2d 111, 120; Lopp v. Peerless Serum Co., Mo., 382 S.W.2d 620, 624; 6 Williston on Contracts, 3rd Ed., § 863, p. 275.

Certainly the entire consent exclusion is not invalid as within the exceptions delineated in Koontz, supra; and, under Willis-ton’s “essential test” adopted in Swinney and Lopp, supra, we think the conclusion inescapable that the two prohibitions in the consent exclusion are divisible or separable. For, if plaintiff insured was willing to take the policy with both prohibitions written into it, it surely could not be said that “there would have been no bargain whatever” [Swinney, supra, 340 Mo. at 626, 102 S.W.2d at 120] if one of those prohibitions had been stricken out. Relieved of the judgment prohibition, plaintiff “receives everything for which [she] bargained and gives less in return.” 6A Corbin on Contracts, § 1522,1. c. 761. We have no doubt but that the two prohibitions in the consent exclusion are divisible or separable. Peltz v. Eichele, 62 Mo. 171, 178(3); Schibi v. Miller, Mo.App., 268 S.W. 434; Beagles v. Robertson, 135 Mo.App. 306, 320-321, 115 S.W. 1042, 1047(2); McCullough v. Clinch-Mitchell Const. Co., C.A.Mo., 71 F.2d 17, 21-22(2-6), certiorari denied 293 U.S. 582, 55 S.Ct. 96, 79 L.Ed. 678.

In their curt two-paragraph argument of this point (i. e., that the consent exclusion is “void because it is against public policy and seeks to oust jurisdiction of the courts”), plaintiff’s counsel treat of the consent exclusion as if the settlement prohibition and the judgment prohibition were indivisible, without recognizing that the exclusion contains two prohibitions stated in the disjunctive and without discussing the divisibility vel non of those prohibitions. The sole ground advanced in support of the contention that the consent exclusion (thus considered in its entirety) “is against public policy” is that it “seeks to oust jurisdiction of the courts.” Under this point counsel quote V.A.M.S. § 435.010 (providing that an agreement to arbitrate shall not preclude suit) and cite Craig, supra (in which we struck down the arbitration provision and the judgment prohibition), Hill v. Seaboard Fire and Marine Ins. Co., Mo.App., 374 S.W.2d 606 (in which the unenforceability of the arbitration provision was confirmed but the validity vel non of the settlement prohibition or the judgment prohibition was not involved), and Security Printing Co. v. Connecticut Fire Ins. Co. of Hartford, Conn., 209 Mo.App. 422, 240 S.W. 263 (in which the validity and effect of an appraisal requirement as a condition precedent to suit was considered). None of the cited cases discuss or deal with the settlement prohibition or even suggest that it should be stricken down as against public policy. The judgment prohibition does tend to oust the jurisdiction of the courts (as we recognized in Craig, supra), but it is just as clear that the settlement prohibition does not and that instant plaintiff’s contention to the contrary must be rejected.

The ever-increasing toll of life and limb taken on our highways by uninsured motorists, impecunious derelicts drifting on the sea of economic irresponsibility, long ago focused attention on the need for some plan or coverage which would afford a measure of financial protection to innocent victims. Efforts to meet that need first found expression in financial and safety responsibility laws and, in more recent years, have resulted in so-called fund plans such as those established in North Dakota, New Jersey and Maryland, and in the development of uninsured motorist coverage either as a mandatory endorsement to all automobile insurance policies issued in some states (e. g., New Hampshire, Virginia and California) or simply as a permissive coverage available under automobile insurance policies issued in other states (e. g., Missouri). Ward, The Uninsured Motorist, etc., 9 Buffalo L.Rev. 283 (1960); Murphy and Netherton, Public Responsibility and the Uninsured Motorist, 47 Georgetown L.J. 700 (1959).

From a public standpoint, it is particularly desirable and important in states such as Missouri, where uninsured motorist coverage presently is made available on a permissive basis for a modest premium, that the risk assumed under such coverage, and thus the cost thereof, should not be increased unreasonably and unnecessarily. The settlement prohibition in the consent exclusion looks toward that end. See Cotton States Mutual Ins. Co. v. Torrance, 110 Ga.App. 4, 137 S.E.2d 551, 553(6, 7), affirmed 220 Ga. 639, 140 S.E.2d 840 (1965). No consideration of public policy has been advanced, and we know of none, which in our opinion should or does preclude the parties to an insurance policy from so contracting.

We hasten to add the caveat that the foregoing should not be misinterpreted as an expression of opinion that the settlement prohibition accords to an insurer the untrammeled, uninhibited and unlimited right to reject or ignore an insured’s request for written consent to a proposed settlement with a “person or organization who may be legally liable” for bodily injury to the insured. On the contrary, we think that the propriety of the insurer’s action in response to any such request should be, when appropriately and properly put in issue, subject to judicial scrutiny and measurement under the rule of reason, i. e., subject to determination as to whether the insurer’s conduct with respect to any such request is, under all of the facts and circumstances of that particular situation, arbitrary or unreasonable. Cf. Levy v. American Automobile Ins. Co., 31 Ill.App.2d 157, 175 N.E.2d 607, 611(5).

However, the record before us neither presents nor permits any such inquiry and determination, for the simple but indisputable reason that instant plaintiff made no request for the written consent of MFA to the making of the $1,800 settlement with defendant Brent. As we have noted, one of plaintiff’s attorneys did advise the MFA attorneys “that I was going to settle by way of a covenant not to sue with the insurance carrier of Cora Brent” and then proceed against MFA. But the record is clear that MFA did not participate in settlement negotiations with representatives of defendant Brent and that, prior to consummation of the $1,800 settlement, MFA was not even apprised of the proposed settlement sum and had no information concerning the matter other than that conveyed by the above-quoted statement of plaintiff’s attorney, which was nothing more than a blunt declaration of what he “was going” to do.

Is MFA precluded by waiver or estoppel from relying on the settlement prohibition? Plaintiff argues that MFA is so precluded because (so plaintiff says) MFA refused (1) to defend uninsured motorist Mangrum in the damage suit and (2) to negotiate a settlement of plaintiff’s claim under the uninsured motorist coverage afforded by the policy. As for the alleged refusal to defend Mangrum in the damage suit, MFA had no duty or obligation under the policy to defend the uninsured motorist, and no such duty or obligation was imposed or suggested by our holding in Craig, supra (cited by plaintiff under this point), where, as a matter of simple justice, we permitted the insurer on its motion to intervene and defend on behalf of a defaulting uninsured motorist. 364 S.W.2d at 346-349. Furthermore, the record in the case at bar affirmatively shows that Mangrum was defended in the damage suit by an attorney of his own choice, and there is no showing that he (Mangrum) ever requested MFA to defend him. With respect to the damage suit, the only demand upon MFA was plaintiffs demand (under the liability coverage afforded by the policy) for a defense against Mangrum’s counterclaim, and the policy obligation to furnish that defense admittedly was honored and discharged by MFA.

As for the alleged refusal of MFA “to negotiate a settlement” of plaintiff’s claim under uninsured motorist coverage, it is true that MFA refused to pay voluntarily a settlement sum acceptable to plaintiff and her attorneys. But disappointed or provoked as plaintiff’s attorneys may have been by the amount of the settlement offer, summarily dismissed by them from mind and memory as “a nominal offer” because it was less than $1,200, the established fact remains that MFA did make an offer to settle plaintiff’s claim under uninsured motorist coverage. It is not unusual or uncommon for parties to entertain widely divergent views concerning the settlement value of claims; and, although instant plaintiff and MFA may have been so far apart in their positions that it would have been futile for them to have engaged in further settlement discussions at the time and although this might have permitted plaintiff to have proceeded immediately with suit on the uninsured motorist coverage afforded by the policy (as was held in Hill, supra, 374 S.W.2d at 610-611, upon which plaintiff here relies), we do not perceive, and plaintiff’s brief does not demonstrate, how or why such disagreement as to the settlement value of plaintiff’s claim reasonably might be said to have estopped MFA from relying upon the settlement prohibition in the consent exclusion or to have constituted a waiver thereof.

In the absence of inhibition by statute or public policy, the parties to an insurance policy are free to make their own contract and to include therein such limitations and restrictions upon the insurer’s liability as the contracting parties are willing to accept and adopt. Mid-Continent Stores, Inc. v. Central Sur. & Ins. Corp., Mo.App., 377 S.W.2d 567, 568(1); Hall v. Missouri Ins. Co., Mo.App., 208 S.W.2d 830, 832(4); Stedem v. Jewish Memorial Hospital Ass’n. of Kansas City, 239 Mo.App. 38, 187 S.W.2d 469, 471(5); National Garment Co. v. New York, C. & St. L. R. Co., C.A.Mo., 173 F.2d 32, 37(13); Smith v. Idaho Hospital Service, Inc., Idaho, 406 P.2d 696, 699 (1965); 29 Am.Jur., Insurance, § 227, p. 614. And where, as here, the language of a limitation or restriction is not ambiguous and does not offend against public policy, it must be accorded its plain meaning and the policy must be enforced as written. State ex rel. Prudential Ins. Co. of America v. Shain, supra, 344 Mo. at 627, 127 S.W.2d at 676-677 (2); Wendorff, supra, 318 Mo. at 370, 1 S.W.2d at 101-102; Simpson v. American Automobile Ins. Co., Mo.App., 327 S.W.2d 519, 526(3); Graham v. Gardner, Mo.App., 233 S.W.2d 797, 800(1). For, to do otherwise would be to make a new contract for the parties [Barmeier v. Oregon Physicians' Service, 194 Or. 659, 243 P.2d 1053, 1058(7)] in contravention of the long-recognized and oft-invoked rule that “[c]ourts are without authority to rewrite contracts, even insurance contracts, although it may appear that in some respects they operate harshly or inequitably as to one of the parties . . . .” Prange v. International Life Ins. Co. of St. Louis, 329 Mo. 651, 661, 46 S.W.2d 523, 526(5), 80 A.L.R. 950; State Mut. Life Assur. Co. of Worchester, Mass. v. Dischinger, Mo., 263 S.W.2d 394, 402(6); Lachterman v. Mutual Ben. Health & Acc. Ass’n., Mo. App., 60 S.W.2d 646, 648(3).

Uninsured motorist coverage is pregnant with potentially perplexing problems, both procedural and substantive, particularly so in jurisdictions where, as in Missouri, it has not been a subject of special legislative attention and action. Since the courts must resolve each such problem as and when it is presented for determination on the facts and circumstances of a given case, we repeat here our cautionary statements in the closing paragraph of Craig, supra, 364 S.W.2d at 349, to wit, that “[w]hat we have said and held is of course applicable only to this case” and “we express no opinion and intend no holding except as applied to the specific situation before us.” On the particular state of facts fully developed and firmly established by the record before us, we are impelled to the conclusion that, as a matter of law, plaintiff may not recover and that the trial court erred in overruling defendant’s motion for a directed verdict at the close of all the evidence and in overruling defendant’s after-trial motion to set aside the jury verdict and the judgment entered thereon and to enter judgment for defendant in accordance with said motion for a directed verdict. V.A.M.R. Rule 72.02.

The judgment for plaintiff is reversed.

RUARK and HOGAN, JJ., concur.

      . V.A.M.S. § 435.010 follows the holdings under the common law that “the parties to a dispute may not oust the jurisdiction of the courts by an arbitration agreement.” 5 Am.Jur.2d, Arbitation and Award, § 36, p. 547.

      . By January 1965 fourteen states had, by legislative action, made uninsured motorist coverage compulsory [Aksen, Arbitration Under the Uninsured Motorist Endorsement, 504 Ins. Law Journal 17, note 4], and twenty states by legislative action, and two states by judicial opinion, had “departed from the common law viewpoint of hostility toward contracts to arbitrate future controversies.” Aksen, supra, at 20-21.

      . Accord: Dominici v. State Farm Mutual Auto. Ins. Co., 143 Mont. 406, 390 P.2d 806, 809 (1964); Fairgrave and Forney, Uninsured Motorist Coverage, 31 Ins. Counsel Journal 665, 669 (Oct. 1964). So, in jurisdictions where contracts to arbitrate future controversies are valid, the judgment prohibition usually is enforceable [e. g., Oren v. General Acc. Fire & Life Assur. Corp., Fla.App., 175 So.2d 581 (1965); Travelers Indemnity Co. v. Kowalski, 233 Cal.App.2d 607, 43 Cal.Rptr. 843 (1965); Kirouac v. Healey, 104 N.H. 157, 181 A.2d 634, 637-638 (1962)] and, in jurisdictions where such contracts to arbitrate are invalid, the judgment prohibition usually is unenforceable [e. g., State ex rel. State Farm Mutual Auto. Ins. Co. v. Craig, Mo.App., 364 S.W.2d 343, 345-346, 95 A.L.R.2d 1321 (1963); Dominici, supra, 390 P.2d at 809 (1964)]. See Cotton States Mutual Ins. Co. v. Torrance, 110 Ga.App. 4, 137 S.E.2d 551 (1964), affirmed 220 Ga. 639, 140 S.E.2d 840 (1965), in which the judgment prohibition was enforced in a case arising prior to enactment of Ga.Code Sec. 56-407.1 (f) forbidding policy provisions requiring arbitration.

      . As for insurers, suffice it to say that, in the 1963 standard form of automobile liability policy, the judgment prohibition (i. e., the words “or prosecute to judgment any action against”) was deleted from the consent exclusion, leaving only the settlement prohibition. Kisjord and Austin, Automobile Liability Insurance Gases, Standard Provisions and Appendix 203.


author: BROADDUS, Special Commissioner.

text:
    W. Noland CHAPPELL, Administrator of the Estate of Elbert Virgil Nash, Deceased, Respondent, v. Florence Elizabeth NASH, Appellant.
    No. 24236.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 7, 1966.
    Application to Transfer Denied March 14, 1966.

      Wm. A. Seibel, Jefferson City, for appellant.
    P. Pierre Dominique and Byron L. Kinder, Jefferson City, for respondent.
   BROADDUS, Special Commissioner.

Plaintiff, Elbert Nash, filed suit for divorce and defendant, Florence Nash, filed an answer and cross-bill. At the hearing plaintiff dismissed his petition and the court found the issues for defendant on her cross-bill and granted her a decree of divorce and the care and custody of a minor child. Prior to the hearing the parties entered into a “Separation Agreement.” Plaintiff having failed to pay two monthly installments specified in the decree defendant caused an execution to be issued. Plaintiff filed a motion to quash the execution. In his motion plaintiff alleged, in effect, that the decree was not a valid judgment of statutory alimony upon which levy of execution could issue, but that the decree was a mere approval of the Separation Agreement upon which a separate suit must be brought to seek enforcement of its provisions. The court sustained plaintiff’s motion, and defendant has appealed.

The following language is contained in the Separation Agreement:

WHEREAS, the parties have reached a conclusion that they no longer can live together as husband and wife, and that they desire to effect an amicable settlement of their various financial and property rights and affairs, including provisions for support of a minor child, :|! * * (Emphasis ours.)
* s{: % jfi
6. Plaintiff agrees to pay to Defendant alimony in the sum of $300.00 per month, same to be paid monthly in advance, the first payment to be due January 1, 1963, and all subsequent payments to be paid as between the first and tenth days of each and every calendar month, and same to continue until death or remarriage of the Defendant, or same is modified by Order of the Court if Plaintiff becomes disabled or is compelled to retire, in which event same may be reduced or modified as the Court may seem meet and just. (Emphasis ours.)

Portions of the Court’s Minutes read as follows:

Deft granted a decree. Deft granted custody of minor child, Richard Joseph Nash. Separation Agreement filed, approved and made a part of decree. Pltf ordered to pay deft $300.00 per month as alimony and $85.00 per month for support of Richard Joseph Nash * * *. (Emphasis ours.)

The pertinent parts of the Decree of Divorce read as follows:

The court further finds that a separation agreement was made and entered into between the parties under date of December 17, 1962, which agreement provides for settlement of their financial affairs, property affairs, care, custody, support and maintenance of minor child, and for payment of alimony in the sum of $300.00 per month by plaintiff to defendant, all of which agreement the court finds to be reasonable and just.
* * * * * *
Therefore, the Court doth further ORDER, ADJUDGE and DECREE that plaintiff pay to defendant as alimony the sum of THREE HUNDRED and No/100 Dollars ($300.00) per month, first payment to be due as of January 1, 1963, subject to the terms and conditions set forth in the Separation Agreement, * * *. (Emphasis ours.)

In her argument the Appellant contends the facts established that the Court entered a consent decree or Judgment. There are circumstances under which parties to a divorce action may enter into an agreement which can become a consent Decree or Judgment and their agreement would thereby be merged with and become a part of that judgment. In North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061 the Supreme Court set forth the circumstances which could give rise to such a decree. Where the parties agree to alimony and then ask the Court to exercise its discretion by granting to the wife the amount agreed upon, such agreement does not represent an agreement settling their property rights, but represents an award of statutory alimony. This principle was reaffirmed by this Court in the case of Edmondson v. Edmondson, Mo.App., 242 S.W.2d 730. In the instant case the parties did not make a suggestion to the Court as to the amount of statutory alimony to be awarded, but rather submitted to the Court a Separation Agreement covering all of their property.

It is well settled in our law that where the parties have made a prior contract completely settling all their property rights and submit the agreement to the Court the adjudging court not only has the authority to approve the contract, but has no right to disregard it. North v. North, supra.

In the Edmondson case, supra, this Court was confronted with the problem of determining the legal effect of a divorce decree incorporating the provisions of a property settlement which provided for periodic payments so long as the wife shall live. The wife sought an execution based on the Decree claiming, in effect, that it represented a valid Decree or Judgment for statutory alimony. In sustaining the lower Court’s ruling quashing the wife’s execution, this Court set forth the following rules for determining the legal effect of such decree under these circumstances:

“There is no valid judgment for alimony if (1) the prior property agreement is lawful and is conclusive as to provisions for support and maintenance, or (2) if the judgment by its terms exceeds the statutory authority.”

The facts of the present case establish that the Decree of Divorce fails to represent a Decree or Judgment for statutory alimony when judged by the standards set forth in the Edmondson case for the following reasons:

The property settlement which was approved and incorporated in the Divorce Decree represents a lawful and all-inclusive settlement of the affairs of the parties. This settlement provided for disposition of all of the personal and real properties which were jointly held by the parties. Further disposition was made of certain life insurance policies and finally, the parties made provision for the support and maintenance of the wife and minor child.

The decree provides for payment of periodic sums which could extend beyond the life of the Respondent. Such payments have been consistently held to be in excess of the Court’s statutory authority. North v. North, supra; Edmondson v. Edmondson, supra, and Smethers v. Smethers, Mo. App., 263 S.W.2d 60. Each of these cases has enunciated the rule that the husband’s obligation to pay alimony exists only during his life and while the parties may contract for the payment of alimony for a longer period and the Court may approve such contracts, nevertheless, such approval does not represent the granting of statutory alimony. In the North case, 100 S.W.2d at page 587 the Court held in reference to such provisions, “Therefore, the decree in [these] cases was an approval of the contractual obligation of the husband to the wife, and not an award of alimony, in the sense in which the word ‘alimony’ is used in the statute.”

Appellant, by submitting the property settlement to the court and obtaining the court’s approval of such settlement and by preparing the divorce decree which incorporated the terms of said property settlement, elected to stand on her contract. She, therefore, cannot at a later date after having made her election seek an execution for statutory alimony. Gunnerson v. Gunnerson, 379 S.W.2d 861, (Mo.App.)

Appellant makes an additional point. However it relates to a matter which was not mentioned in the motion for new trial, and thus is not preserved for review on appeal.

The judgment should be affirmed. Your Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the judgment is affirmed.

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.


author: MOREMEN, Chief Justice.

text:
    W. L. SPRATT, Appellant, v. Lora L. CARROLL et al., Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Clyde Williams, Jr., Campbellsville, for appellant.
    George O. Bertram, Faulkner & Bertram, Campbellsville, for appellee.
   MOREMEN, Chief Justice.

This is an appeal from a judgment of the Taylor Circuit Court which reformed the terms of a bill of sale on the ground that an important portion of the agreement had been omitted by mutual mistake of the parties.

Appellee, Lora Carroll, was the operator of the Little Pine Restaurant in Campbells-ville. Appellant purchased from her all equipment, fixtures and furniture used in the business. The bill of sale contained the following warranty of title:

“And the said grantors hereby covenant to and with the said grantee that the said grantors are the lawful owners of the above described goods and chattels; that the same are free from all encumbrances whatsoever; that the grantors have good right to sell the same as aforesaid; and that grantors will warrant and defend the same against all lawful claims and demands whatsoever.”

In fact, appellee was not the owner of some of the equipment. She had possession under a conditional sales contract with Food Service Equipment & Supply Company of Louisville. The sum of $1800 was owed on the purchase price.

Issue was joined by appropriate pleading as to whether appellant Spratt had assumed this indebtedness and by mutual mistake of the parties the agreement had been omitted from the terms of the sales contract. Each party obtained a deposition by interrogatories and each deposition is remarkable for its brevity. Mrs. Newton, a sister of appellee Lora Carroll, testified:

“I did overhear a conversation between Mrs. Lora L. Carroll and Mr. W. L. Spratt also Kenneth Spratt. Mr. Nattian Newcomb was present part of the time in this group discussing the sale of the Little Pine Restaurant. One morning shortly before noon in July, I was upstairs at Mrs. Abe Newton’s in the kitchen'by an open window ironing. My son, William Thomas Newton II, 16 years old at the time, was with me talking. We heard voices below us and recognized Mr. W. L. Spratt’s and Kenneth’s among the group discussing the sale of Little Pine Restaurant to them. The verbal agreements I heard mostly were that they would pay $5000 for the restaurant and there was a note on the ice machine that was to be transferred into their name soon as my sister, Mrs. Carroll, could get it transferred. They were quite anxious to go into operation on Aug. 1, 1960, rather than delay the opening date to get the note changed over into Spratt’s name. It seemed that Mrs. Carroll had to find out where to go to get this matter taken care of concerning the ice machine. There were other parts I heard both parties speak that had not too much bearing on the part under discussion.”

Robert Spratt, a son of appellant who was present at the time of the transaction, testified ;

“A. Yes, I do. W. L. Spratt and Robert K. Spratt wrote a check on July 29, 1960, for the sum of Five Thousand Dollars ($5000.00) purchasing the Little Pine Restaurant from Lora L. Carroll. The only persons present during the transaction were W. L. Spratt, Robert K. Spratt, Patricia Ann Spratt. The $5000 was for a cash sale, for which a certified Bill of Sale was given to W. L. Spratt, stating that the business purchased was free and clear from all encumbrances. Bill of Sale is now in the courts, which can be looked up very easily.
“Q. The only persons present in this transaction were the above mentioned? A. Definitely not, as far as Mrs. Geneva M. Newton is concerned, she could absolutely (not) know anything or hear any conversation concerning this affair. The transaction of this sale was made in an alley over a hundred yards from any buildings. Mrs. Geneva M. Newton is swearing perjury, to my knowledge.”

The court made a finding of facts and conclusion of law which contained some facts we are unable to find in the record. Thereafter he entered a judgment which reformed the bill of sale and gave appropriate adjudications as to various secondary matters which were pending, which decisions were predicated upon the determination that the bill of sale should be reformed.

It has long since been settled that reformation is the proper remedy where a provision the parties agreed upon has been omitted by mutual mistake from the final written instrument. Employers Liability Assurance Corp. v. Johnson County, Ky., 262 S.W.2d 367. The theory behind this remedy is that the final document is intended to be no more than the integration in writing of terms already agreed upon and insofar as it differs from those terms the instrument should be corrected. See generally Corbin, Construction, § 614.

A contract itself duly executed and introduced into court has great weight as evidence of mutual agreement. We have often held that contracts made between competent persons are not to be set aside lightly. Zeitz v. Foley, Ky., 264 S.W.2d 267. When one party maintains that there has been no mistake and that he has never expressed assent to any agreement other than the one stated in writing, the testimony and corroborating evidence of the party seeking reformation must be extremely strong in order to overcome' the specific terms of the contract. One who relies on the defense of mutual mistake must prove the allegation by clear and convincing proof. Silver v. Overhead Door Co., 311 Ky. 650, 225 S.W.2d 115.

The proof offered by appellee does not reach this high standard as may be readily determined by reading the deposition of Mrs. Newton above quoted.

The judgment is therefore reversed for a new trial with directions that the bill of sale be enforced according to its terms.


author: WADDILL, Commissioner,

text:
    NALLY & GIBSON, a corporation, Appellant, v. Joe MULHOLLAND and Noah B. Mulholland, Appellees.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Virgil F. Pryor, McKnight & Pryor, Georgetown, for appellant.
    V. A. Bradley, Jr., Bradley & Bradley, Georgetown, for appellees.
   WADDILL, Commissioner,

The appeal is from a judgment against appellant for $5000 as damages resulting from a nuisance it maintained. Appellant also seeks to set aside an order to abate this nuisance. It is contended that the evidence neither supports the award of damages nor justifies the granting of the injunction.

During 1960 appellant began quarrying limestone on land adjoining the 120-acre farm purchased by the appellees in 1957. As a result of appellant’s blasting operations chunks of rock, sometimes 18 inches in length, were thrown onto appellees’ fields and from its stone crushing operations the prevailing winds deposited large quantities of limestone dust over appellees’ farm and residence.

Appellant has made some attempt to remedy the cause of the nuisance and it further appears that the nuisance can reasonably be abated. Since the nuisance is of a temporary nature the proper measure of damages is the diminution in the value of the use of the property during the continuation of the nuisance. Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755.

In support of their claimed damages the appellees introduced without objection evidence that portions of their farm, previously used for growing crops, were no longer suitable for such use due to appellant’s quarrying operations. Based on their previous use of their farm and the average sale price of their crops they showed that the value of their use of certain portions of the farm was reduced approximately $1900 per year. The remainder of the farm was used as pasture for horses and cattle. Due to the falling rock and noise near appellant’s operations appellees’ grazing stock would not go near the existing water source and a new water supply had to be provided at a cost of $1200. Such an expenditure which was reasonably calculated to minimize the damages due to the nuisance is a proper factor to consider in determining the diminution in the value of the use. Cf. Stratford Theater v. Town of Stratford, 140 Conn. 422, 101 A.2d 279, 41 A.L.R.2d 1060. It was also shown that the farm could board ten brood mares if it were not for the coating of limestone dust on the grazing land. Loss of profit from this source was about $3200 per year. The damages shown over the three years involved adequately support the award of $5000.

The contention that the granting of an injunction was unwarranted is premised on the assumption that the injunction prevents appellant from operating its quarry and thereby causes great hardship. We believe appellant has misinterpreted the order. The trial court found that appellant had caused rocks and other debris to be thrown and limestone dust to be blown on appellees’ land and ordered that this nuisance be abated so as not to cause such damage. This will require some changes in appellant’s operating procedures but the record does not disclose that such changes will necessarily cause a cessation of appellant’s business.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ethel HUNT, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Madisonville, Thomas L. Withers, Henderson, for appellant.
    Dorsey & Sullivan, John L. Dorsey, Jr., Henderson, for appellees Allen Wilson and A. P. Fulkerson.
    William M. Deep, Robert G. Hunt, King, Deep & Branaman, Henderson, for appellee, Ethel Hunt.
   CLAY, Commissioner.

In this condemnation case the Commonwealth appeals from a judgment of $11,100. The property taken was a strip of land 100 feet in length across the front of appel-lees’ commercial property in Henderson facing on U. S. 60 (which was widened). The jury awarded $6,000 for the permanent taking of a seven-foot strip and $5,100 for the temporary taking (for 34 months) of an additional 10-foot strip (reduced to four feet for about one-third of its length).

The Commonwealth’s principal complaint concerns the excessiveness of -the award of $5,100 for the temporary easement. This case was tried before our decision in Commonwealth Dept. of Highways v. Ray, Ky., 392 S.W.2d 665, but the principles therein set forth are controlling. This award was based on improper elements of damage and is grossly excessive. It is perhaps unnecessary to point out that the rental value award for this 10-foot temporary easement exceeded the reasonable rental value of the entire property. If a new trial is had with respect to this item, the criteria set forth in the Ray case will be followed.

The Commonwealth also contends (though it is very briefly argued) that the award of $6,000 for the permanent taking of the seven-foot strip is likewise excessive. One of the Commonwealth’s witnesses fixed the difference in market value at $2,600. The lowest estimate of this difference by the landowners’ witnesses was $21,000. The verdict of $6,000 indicates the jury could not accept the latter witnesses’ utterly extravagant estimates and also shows a fair attempt to make a reasonable award somewhere between the widely divergent appraisals. In the light of the evidence we cannot say this award is so excessive as to indicate passion and prejudice on the part of the jury.

The judgment is affirmed in part and reversed in part, with directions to grant a new trial on the sole issue of damages for the taking of the temporary easement.


author: HILL, Judge.

text:
    Robert ILES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Robert lies, pro se.
    Robert Matthews, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellant, Robert lies, appeals in forma pauperis from a judgment overruling without a hearing his motion to vacate judgment under RCr 11.42.

The motion to vacate charges appellant’s constitutional rights were violated when the trial court allowed the jury to separate during his trial which lasted three days, and because he was denied effective assistance of counsel. (He selected and paid his attorney.)

The record discloses the trial judge conferred with counsel for both plaintiff and defendant on the question of guarding the jury. It was waived as RCr 9.66 provides for. There is no allegation of tampering with the jury. The right to have a jury guarded in capital cases is one that can be waived. Appellant will not be heard now to complain of a proceeding to which he voluntarily consented. Had there been an irregularity during his trial pertaining to guarding the jury (although there is no allegation there was), such irregularity was one he was required to raise by appeal under the rule announced in King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

Finally, appellant contends he was denied effective assistance of counsel, and his constitutional rights were thereby violated. He complains that his employed counsel did not prosecute an appeal and did not advise him of his right to have the jury guarded.

The judgment of conviction was entered January 22, 1965, and timely motion and grounds for a new trial were filed. It was not until April 19, 1965, that counsel for appellant withdrew from the case, after filing proper motion to be allowed to do so. Notice of the motion was furnished appellant. No steps were taken to hire another attorney or to request the appointment of one, in the event he had become a pauper by that time. He slept on his right to appeal. Cf. Whack v. Commonwealth, Ky., 390 S.W.2d 161 (1965).

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    CITY OF MAYSVILLE, a municipal corporation of the third class, Appellant, v. D. B. COUGHLIN et al., Appellees. CITY OF MAYSVILLE, a municipal corporation of the third class, Appellant, v. Rebekah HORD, Appellee. CITY OF MAYSVILLE, a municipal corporation of the third class, Appellant, v. J. F. HARDYMON CO., per Kenneth Hardymon, Appellee. CITY OF MAYSVILLE, a municipal corporation of the third class, Appellant, v. Frank BRITTEN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Philip Hargett, James M. Collins, Mays-ville, for appellant.
    Woodson T. Wood, Fox, Wood & Wood, D. Bernard Coughlin, Maysville, for appel-lees.
   WILLIAMS, Judge.

In 1948, the City of Maysville passed an ordinance fixing a sewer rental charge against property owners in the City of Maysville for the purpose of completing, altering and operating the sanitary sewer system of the City. The ordinance as amended remained in effect until January 1, 1961, at which time the principal and interest on a bond issue were totally retired. These suits were filed by the City of Mays-ville in an effort to collect from each of the appellees herein, sewer rental charges for the year 1961. The Mason Circuit Court held that the charges ceased when the bonds and indebtedness were retired, and the City of Maysville has appealed.

The controversy revolves around .the interpretation of two sections of the ordinance :

“1. For the purpose of completing, altering and operating the Sanitary Sewer System of the City, it is necessary that a general sewer rental charge be put into effect.”
“6. The fund thereby created may be pledged in whole or in part to secure the payment of any bonds which may be issued from time to time for sewer improvement purposes and the rentals as provided herein or so much thereof as is necessary shall remain in effect so long as the principal and interest of any bonds secured thereby remain outstanding.”

The City contends that the word “operating” in Section 1 indicates that the rental charge is a continuing one which should not cease until the sewer system is no longer operated. The City also contends that Section 6 of the ordinance was inserted for the protection of the bondholders to prohibit the City from removing the sewer charge until the bonds were retired and that the section consequently had no effect on sewer rental payments.

Appellees, on the other hand, contend that the word “operating” was inserted to insure payment of maintenance expense during the life of the bonds. They also contend that the meaning of Section 6 is plain, certain and unambiguous, and it is unnecessary to look any further to ascertain its meaning.

In City of Mayfield v. Reed, 278 Ky. 5, 127 S.W.2d 847 (1939), we stated:

“The primary purpose of judicial construction or interpretation of statutes or ordinances is to determine the intent and purposes thereof and if this may be determined from the language of the statute or ordinance, no other rule of construction or interpretation is necessary.”

It is apparent the provision in Section 6 that rental charges shall remain in effect “so long as the principal and interest of any bonds secured thereby remain outstanding,” overrides any implication that the charges would remain in effect for any longer period of time. Moreover, the logical interpretation of Section 1 is that the rental charges could be used for the purpose of operating the sewer system during the life of the ordinance.

The appellee Frank Britten owned property in the City but no sewer facilities were ever provided or made available to him. As a consequence, he made no sewer rental payment for any period. The City sought in its action against him to recover sewer rental charges for the entire period beginning with the 1948 ordinance. We previously held in Walker v. City of Maysville, 310 Ky. 118, 220 S.W.2d 96 (1949), that this project was a proceeding under Chapter 58 of Kentucky Revised Statutes and upheld the validity of the ordinance. Therein we stated:

“The principal and interest of the proposed bonds shall be payable solely from a fixed amount of gross revenues derived from the operation of the project, and no tax shall be levied for the purpose of paying the principal or interest thereon; * * *.”

Under similar circumstances in another case, we held that only property bénefited by a sewer improvement should bear the expense therefor. Krumpelman v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 314 S.W.2d 557, 75 A.L.R.2d 1110 (1958). It follows that the Mason Circuit Court was correct in its finding that no charge should be made against Frank Britten, in view of the fact that no sewer was ever provided for him.

The judgments are affirmed.


text:
    Orville (Tood) RODGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    H. K. Spear, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

Appellant seeks a reversal of his conviction and sentence of one year for the third violation of the Local Option Law. The only ground for reversal with any merit relates to the instructions given by the trial court. Instruction number one is as follows :

“If the jury believe from the evidence beyond a reasonable doubt, that the defendant, Orville (Tood) Rodgers, in Casey County, and before the finding of the indictment herein, and on or about the 25th day of August, 1965, did unlawfully sell to Joe Grote, two pints of liquor for which he paid Rodgers the sum of ($9.00) Dollars, you will find the defendant, Orville (Tood) Rodgers, guilty as charged in the indictment and fix his punishment at confinement in the State Reformatory for not less than one nor more than two (2) years.”

There followed only one other instruction on reasonable doubt.

The indictment charged two previous convictions, which appellant for all practical purposes admitted, although he had entered a plea of not guilty. Notwithstanding his admission, unlike civil cases, every factual question must be submitted to the jury, including his guilt or innocence under the three separate counts. A proper instruction is outlined in Marcum v. Commonwealth, Ky., 398 S.W.2d 886, 887 (decided February 4, 1966) from which we quote;

“ * * * the trial court properly advised the jury that if it believed beyond reasonable doubt that appellant had committed the prime offense, and further so believed that he had been convicted of local option offenses twice before — listing the respective dates of the convictions concerning which testimony had been adduced, and referred to in the indictment — the jury could assess punishment at confinement in the penitentiary for not less than one nor more than two years. KRS 242.990(1). This was appropriate as far as it went, but it was incomplete. The instruction failed to advise the jury that it had an option to believe from the evidence that 'appellant had been previously convicted on only one of the previous charges, in which event the statutory range of punishment would have been a fine * * " *. The failure to so instruct the jury was prejudicial error. Brown v. Commonwealth, Ky., 378 S.W.2d 608, 609; Tuttle v. Commonwealth, Ky., 331 S.W.2d 891, 893. Upon another trial the word ‘offenses’ should be substituted for the word ‘felonies’ in the third instruction.”

This Court decided that instructions on the Local Option Law (KRS 242.990) must also comply substantially with instructions under the Habitual Criminal Statute. See Stanley’s Instructions, Volume 3, Section 950. Gossett v. Commonwealth, Ky., 295 S.W.2d 338, 339 (1956), from which we quote, states:

“We have written in Coleman v. Com., 276 Ky. 802, 125 S.W.2d 728, and in Denham v. Com., 311 Ky. 320, 224 S.W.2d 180, that the previous crimes and the one with which the accused is presently charged must have been committed progressively after each conviction. The indictment, the evidence and the instructions should make it clear that the commission and conviction of the second crime were subsequent to the commission and conviction of the first, and the commission of the third crime was after the commission and conviction of the second.”

To summarize, if the evidence on another trial is substantially the same, the court should give an instruction covering the primary crime; a second instruction covering the primary and either of the previous convictions, which should provide for a penalty double that of the first instruction; a third instruction covering the primary offense and the two previous convictions, constituting a felony, punishable by imprisonment in the state reformatory; and a fourth instruction on reasonable doubt, an “alternative” instruction, authorizing a conviction under the instruction providing for the lesser penalty.

It may be thought that appellant admitted on cross-examination that he had been twice convicted of violation of the Local Option Law so as to relieve the trial court of giving instructions pertaining to the previous offenses. This may be true where there is a plea of guilty or its equivalant. Cf. Tuttle v. Commonwealth, Ky., 331 S.W.2d 891. However, in the present case the evidence of the accused does not amount to a formal admission that he had been previously convicted. Consequently, it was the duty of the trial court to give the whole law of the case as outlined above.

Wherefore the judgment is reversed with directions to afford appellant a new trial.


author: DAVIS, Commissioner.

text:
    C. C. GRAY, Appellant, v. Daniel C. MATTINGLY and Betty J. Mattingly, Appellees.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    W. Scott Miller, Jr., Louisville, for appellant.
    Chester A. Vittitow, Jr., Louisville, for appellees.
   DAVIS, Commissioner.

The appellees obtained verdict and judgment for $2,500 in this action against appellant for alleged defective performance of a residence building contract. Appellant, the builder, assigns four bases in this effort to reverse the judgment: (1) an erroneous instruction was given; (2) incompetent evidence was admitted; (3) the court erred in admonishing the jury incident to a view of the premises, and (4) the court made comment discrediting a witness for appellant.

The appellees prayed recovery of $4,000 in the complaint, based upon their assertion that appellee had failed to construct a residence in a workman-like manner in violation of a written contract. They presented testimony tending to show ten instances wherein the building failed to come up to contract specifications. Appellant ■offered evidence to the contrary.

Appellant’s first point is premised ■on the amount of damages set out as permissible by the court’s instruction. The instruction informed the jury that it might award appellees damages representing the ■difference, if any, between the fair and reasonable value of the house, as completed, and such value had the house been built according to the contract. The limit of recovery was put at $4,000. Appellant insists that the instruction should have limited the permissible recovery to $2,500, the highest amount warranted by the evidence in behalf of appellees. Appellant has not favored us with citation of any authority on this point. However, we note that the question is not a novel one. In view of the fact that the verdict did not exceed the amount justified by the evidence, we conclude that no prejudicial error occurred when the court authorized recovery up to $4,000. See River Queen Coal Co. v. Mencer, Ky., 379 S.W.2d 461; Price v. Price, Ky., 376 S.W.2d 522; Herald v. Gross, Ky., 343 S.W.2d 831; Greyhound Corp. v. Dowling, Ky., 334 S.W.2d 259; Hedges v. Neace, Ky., 307 S.W.2d 564; Bowling v. Ratliff, Ky., 253 S.W.2d 621; Combs v. Stewart, 301 Ky. 50, 190 S.W.2d 861; Coca Cola Bottling Co. of Shelbyville v. Creech, 245 Ky. 414, 53 S.W.2d 745; 5A C.J.S. Appeal and Error § 1773(1).

The appellant complains of testimony presented by appellees’ witness Sutherland, a building contractor. Witness Sutherland detailed instances of improper construction, and gave estimates as to what expense would be required in correcting these matters. In summary, he said that in his opinion an outlay of $6,000 to $6,500 would be required for the purpose. (No objection to this was interposed for appellant). On cross-examination appellant propounded questions to which the witness made answers as appear of record:

Q41. Well, sir assuming it was in the shape you say it should be, what would the house be worth then?
A. Well, I’m not a real estate man. I don’t know what it would be worth.
Q42. Well, if it has been testified the house cost $13,850.00 and you’re saying it’s worth only $7,000.00 some odd dollars?
A. I was asked how much it would cost to put it in the shape it should be in as a new house.
Q43. You couldn’t testify as to what it would be worth on the fair market value today, could you sir?
A. No.

When these answers had been heard, appellant moved to strike the evidence of witness Sutherland on the ground that it was not related to market value. The court correctly overruled that motion. As recently as State Property & Buildings Commission of Dept. of Finance v. H. W. Miller Construction Co., Ky., 385 S.W.2d 211 (1964), we said, in discussing the measure of damages in this type case:

“In simple terms, the measure of damages is the amount that is reasonably necessary in order to make the building conform to the requirements of the contract, but in no event to exceed the difference, if any, between its market value as it should have been constructed and its market value as it was actually constructed.” Id., 385 S.W.2d 214.

Tested by that rule, the evidence of witness Sutherland was appropriate. It will be recalled that the court did limit the possible recovery to a sum equal to the difference in market value as built and as contracted to be built.

The third assignment of error relates to the admonition given by the trial judge to the jury prior to its viewing the premises. The impact of the argument is that the judge virtually told the jury that the complained of defects did exist, as opposed to the idea that the appellees claimed they existed and appellant denied it. We conclude that the assignment of error is not well taken. It is observed that the judge opened the admonition by telling the jury that it was to view the premises “ * * * for the purpose of seeing the property and viewing the defects complained of in this action about which you have heard' evidence.” In another phase of the admonition the court told the jury to view the property “ * * * and view the brick work, septic tank problem, concrete stucco around the house, the shimming of the floor joists, leakage around the pipe in the basement septic tank, subflooring, and any other matters about which you have heard evidence. You are not to consider anything other than what you’ve heard evidence in regard to from that witness chair.” At the conclusion of the brief admonition the court queried: “Does counsel suggest anything further?” No response or objection was heard.

We think that a fair reading of the admonition precludes the idea that the trial judge told the jury that the complained of defects did exist. It would have been more desirable for the court to have refrained from listing the items about which evidence had been presented, but in the absence of objection at the time, and in light of the tenor of the entire admonition, we are convinced that no prejudicial error occurred in this respect.

The last attack on the judgment relates to a colloquy which occurred-during the testimony of appellant’s witness Gailor. Counsel for appellee sought on cross-examination to have witness Gailor state whether buyers would pay full price if the residence had the complained of defects — but the witness repeatedly responded that he could not so assume because he knew the defects did not exist. At one point the trial judge apparently thought the witness had said he did not “think” he would answer, at which the judge commented: “I know whether you will answer it or not if you don’t think you will.” The witness replied that he had misunderstood, and had thought the court had told him to answer, and that he had answered. The court then told the witness that he had not so ruled, and asked him whether he would answer — to which the witness replied: “Yes, sir. No, I don’t think they will.” When further questioning along that line was attempted, the judge said: “He has answered that. He says it would not be worth it.” We can perceive no prejudicial error in this. The misunderstanding between the judge and the witness was promptly clarified without disparagement of the witness; the witness did say that he believed buyers would pay less if the defects existed. We conclude that the contention is without merit.

The judgment is affirmed.