author: STONE, Judge.

text:
    Catherine KIRST, Plaintiff-Respondent, v. CLARKSON CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.
    No. 8467.
    Springfield Court of Appeals. Missouri.
    Oct. 12, 1965.

      Glenn A. Burkart, Robert W. Schroff, Mann, Walter, Powell, Burkart & Weathers, Springfield, A. W. Landis, West Plains, for defendant-appellant.
    H. D. Green, R. D. Moore, N. C. Brill, West Plains, for plaintiff-respondent.
   STONE, Judge.

Plaintiff, Catherine Kirst, sued defendant, Clarkson Construction Company, for damage to a frame house in West Plains, Missouri, alleged to have been caused on April 26,1963, by blasting on a nearby highway construction proj ect. At the conclusion of the trial on March 5, 1965, the jury returned a unanimous verdict finding the issues in favor of plaintiff and assessing her damages at $1,150. Defendant filed no after-trial motion, but plaintiff filed a timely motion for new trial which was sustained [V.A.M.R. Rule 78.01] by the following order specifying three grounds (numbered by us to facilitate easy reference thereto): “Motion for new trial granted and for the reason the court believes [1] it erred in permitting defendant to prove the value of real estate in question in the year of 1947, [2] that it erred in permitting the evidence as to amount paid to plaintiff for real estate by the Missouri State Highway Department and [3] that because of the aforesaid, that the plaintiff was prejudiced when defendant’s attorney asked that jury be permitted to view the real estate before said jury.” The order granting a new trial having deprived defendant of its attained position in the litigation and of its right to conclude the suit and forever terminate its liability upon plaintiff’s cause of action by paying the judgment and costs, defendant is an “aggrieved” party [V.A.M.S. § 512.020] and may maintain this appeal. Adair County v. Urban, 364 Mo. 746, 268 S.W.2d 801, 804-805 (4); Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 321(6).

Plaintiff’s motion for new trial contained nine assignments of error, to wit, the three assignments subsequently specified in the court’s order granting a new trial, three assignments not here material, and three assignments pertaining to alleged inadequacy of the verdict, namely, assignment 7 that “the verdict of the jury is wholly inadequate,” assignment 8 that “the verdict of the jury is inadequate and the result of the bias and prejudice of the jury against the plaintiff,” and assignment 9 that “the verdict of the jury for such inadequate amount was not supported by the preponderance and greater weight of the evidence in said cause.” By granting plaintiff’s motion for new trial on specified grounds as directed by V.A.M.R. Rule 78.01, the trial court, in effect, overruled all other assignments in the motion, including assignments 7, 8 and 9 pertaining to alleged inadequacy of the verdict. So the anomalous posture of the case, as it'comes to us, is that the trial court rejected and denied plaintiff’s complaints directed to the alleged inadequacy of the verdict [cf. Smith v. St. Louis Public Service Co., Mo., 277 S.W.2d 498, 502(1)] but granted a new trial to plaintiff because of alleged errors in the admission of evidence, as specified in grounds 1 and 2 of the order granting a new trial, and because of the request by defendant’s counsel that the jury be permitted to view plaintiff’s house, as specified in ground 3 of the order.

Reminding us of the well-established principle that, on appeal from an order granting a new trial, the respondent is not limited to the grounds specified in the order but may urge in support of the court’s ruling any other ground properly presented and preserved in the motion for new trial and on appeal, instant plaintiff-respondent here undertakes to sustain the trial court’s order on the ground that “the verdict of the jury was wholly inadequate and was predicated upon evidence erroneously admitted” — essentially the complaint in assignment 7 in the motion for new trial that “the verdict of the jury is wholly inadequate,” coupled with the present assertion of plaintiff’s counsel that such alleged inadequacy of the verdict was “the inherent result” of grounds 1 and 2 specified in the order granting a new trial.

The general rule is that where, as here, the jury assesses damages in a substantial (as distinguished from a nominal) amount, plaintiff will not be heard to complain upon appeal about the admission or exclusion of evidence. Stone v. Farmington Aviation Corp., 360 Mo. 1015, 1021, 232 S.W.2d 495, 499(4) ; Cochran v. Wilson, 287 Mo. 210, 228, 229 S.W. 1050, 1056(5). See McCormack v. McNamee, Mo., 274 S.W.2d 272, 279(10). But, aside from that principle, it is crystal clear that plaintiff’s appellate position necessarily must rest and depend upon her contention that the damages assessed by the jury were inadequate. Otherwise, it could not be said that trial errors, whatever they might have been, materially affected the merits of the action and constituted prejudicially reversible error. V.A.M.R. Rule 83.13(b) ; V.A.M.S. § 512.160(2). And since the order granting a new trial, in effect, overruled all assignments in plaintiff’s motion for new trial pertaining to alleged inadequacy of the verdict, and since the appellate presumption is that the trial court acted correctly in overruling those assignments, the burden of demonstrating here that the trial court erred in so ruling rests upon plaintiff-respondent.

Under our juridical system, determination of the amount of damages is primarily for the jury. And where, as in the instant case, the trial court has overruled the assignments in the motion for new trial pertaining to alleged inadequacy of the verdict and thus has denied a new trial for inadequacy, the rule upon appeal is that the jury’s exercise of its discretion in the assessment of damages is conclusive unless the verdict is so shockingly inadequate as to indicate that it is the result of passion and prejudice or of a gross abuse of such discretion. The appellate court does not weigh the evidence but rather seeks only to ascertain whether the trial court abused its discretion in denying a new trial for inadequacy. The appellate inquiry is whether, viewing the record in the light most favorable to the trial court’s ruling on the complaint of inadequacy, it may be said fairly and reasonably that the verdict was supported by substantial evidence.

With these basic principles in mind, we turn to the evidence. In 1947, plaintiff and her husband purchased and (with their children) moved into a seven-room, two-story frame house (hereinafter frequently referred to as the house) situate on a five-acre tract, of which approximately three acres were sold for highway right-of-way prior to the blasting on April 26, 1963, out of which this action arose. After the death of her husband in 1954, plaintiff continued to reside in the house until November 1962, when she moved to another town. Thereafter, the house remained vacant to the time of trial.

The house was located “fifty feet or maybe a little more” north of the right-of-way of relocated U.S. Highway No. 63 which, at that point, runs through a “cut”. During the late afternoon of April 26, 1963, defendant, then engaged in construction of Highway 63, set off a series of three blasts in the “cut.” Plaintiff adduced evidence to the effect that the third blast was too heavy and that it caused “a terrific shock plus a lot of debris in the air” which showered upon not only plaintiff’s house but also the Amyx house some fifty to seventy-five feet to the north. Upon trial, defendant did not seriously deny that the blasting had resulted in some damage to plaintiff’s house, but there was a sharp dispute and wide divergence of opinion as to the nature and extent of damage.

The measure of damages in cases of this character is stated plainly in Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 686, 253 S.W.2d 158, 164(12): “The general rule is that the measure of damages to real estate is the difference in the value of the land before and after the injury by trespass or negligence. However, where damaged land or a building thereon can be restored to its former condition, at a cost less than the diminution in value, the cost of restoration may be recovered.” Tp the same effect, see Beaty v. N. W. Electric Power Coop., Mo.App., 296 S.W.2d 921, 925(5). In the case at bar, no witness testified with respect to the difference between the reasonable market value of plaintiff’s real estate (i.e., the house and the two-acre tract on which it is situate) immediately before and immediately after the blasting. Plaintiff herself testified as to the difference between the reasonable market value of the real estate immediately before the blasting on April 26, 1963, and at the time of trial on March 5, 1965. Plaintiff’s witness Curtis Amyx testified only as to the reasonable market value of the real estate prior to the blasting. Plaintiffs witness John T. Boss testified only as to what he considered the house to be “worth” at the time of his examination about five weeks prior to the trial, and as to his estimate of the cost of repairing it at that time. Defendant’s witness Rede Smith testified as to his estimate in October 1963 of the cost of repairing the damage which, in his opinion, had resulted from blasting. We proceed to a review of the pertinent testimony of the four above-named witnesses.

Plaintiff’s testimony. In 1959, plaintiff and her children “put in new ceilings” in the dining room and kitchen and papered the interior of the house. For this work, plaintiff made no cash expenditure other than for materials, and she declined even to estimate that expense. In the questions which first elicited information concerning this work, plaintiff’s counsel referred to it as “some repairs to the house back in ’59”; and, on cross-examination, plaintiff responded with an unqualified “yes, sir,” when defendant’s counsel inquired “that was what you call repair work?” At times not fixed in the record, plaintiff brought cold water plumbing into the house and (so she said) hired one Ganley to “put a new roof on.” The house does not have toilet facilities, a hot water system, or central heating. Plaintiff described the house as “in good condition” and in need of no repairs when she last saw it in February 1963 prior to the blasting on April 26, 1963.

At the time of trial, plaintiff was employed at Katz Discount City in Springfield. There was no showing of previous work or experience outside the home or of any circumstance, excepting only the mere fact of her ownership of the real estate under consideration, which would have qualified or permitted her to express an opinion as to the reasonable market value of that (or any other) real estate. As the owner of the real estate, she expressed the opinion that, immediately before the blasting, “it was worth about $6,000”; and, when asked for her opinion of “the reasonable market value of it at the present time [March 5, 1965],” plaintiff responded, “well, after studying it out, I doubt — maybe around $2,500 for the whole thing; maybe not even that much.” On cross-examination plaintiff readily conceded that, when her deposition had been taken on February 12, 1965 (less than one month before trial), she had declared that she had no opinion as to the value of the real estate either at the time of the deposition or in June 1963, when she first saw it after the blasting.

Plaintiffs witness Curtis Amyx had been a postal employee for eight years prior to the date of trial. In reply to the inquiry as to whether he had “ever been engaged in the sale of real estate,” Amyx said “none other than my own”; and the sole real estate transaction to which he was shown to have been a party was his purchase in 1959 of the first house north of plaintiff’s real estate. The extent of his “qualification” to give opinion evidence concerning the reasonable market value of plaintiff’s real estate was his agreement with the leading questions of plaintiff’s counsel that he had “known of property selling out in that particular vicinity” and “what it sold for, what the purchase was on it.” On this basis, the trial court reversed his initial ruling that “I don’t believe the man is qualified” and permitted counsel to elicit from Amyx this opinion as to the reasonable market value of plaintiff’s real estate prior to the blasting, “well, to my own opinion, I’d say $6,000, $6,500.” On cross-examination, Amyx stated that he knew that plaintiff’s house did not have central heating but that he did not know the age of, or the number of square feet in, the house and likewise was unaware that it lacked toilet facilities and a hot water system. Amyx had made claim against defendant for alleged damage to his house, which had resulted in a “dispute” and “court trials” about which he admittedly was not “very happy.”

Plaintiffs witness John T. Boss, a building contractor for thirteen years, examined the house at plaintiff’s request about five weeks prior to trial and then estimated “the reasonable cost of materials and labor to make necessary repairs” at $4,030.36. Without those repairs, Boss “wouldn’t consider it [the house] worth over $500.” On cross-examination, it was developed that Boss’ estimate included the expense incident to a new foundation “all the way around the house” — “you’d have to put in a new foundation ; the old one was in a crumbling condition.” When Boss’ attention was called to a photograph in evidence showing “quite a gap” in the foundation and he was asked whether he had found “mortar lying around . . . like it had been shaken loose” by blasting, the unresponsive reply was “well, I was asked to go out and make an estimate on this j ob, what I thought it would take to repair it, and I supposed that was done by the blast . . . no, I don’t know.” Boss did not know the age of the house but thought that it probably was twenty or twenty-five years old.

Defendanfs witness Rede Smith, a carpenter for twenty-seven years who frequently made estimates “for insurance jobs” (a circumstance pointedly recalled to the jury in the closing argument of plaintiff’s counsel), examined plaintiff’s house in October 1963. He found the asphalt roof on the north side of the house “in bad shape . . . practically gone from age” and “showing the old shingle roof underneath.” A new roof had been needed for “two or three years and, I believe, longer on the north side.” Smith estimated at $15 the cost of repairing the one place on the roof which apparently had been damaged by falling rock. “The plaster was bad over most of the house.” It was “old lime plaster on wood laths . . . around thirty years would be pretty good for this old plaster.” The condition of the plaster in the second story was particularly bad by reason of not only deterioration but also leaks through the roof. Frankly acknowledging the difficulty of making a precise determination of the damage caused by blasting as distinguished from the conditions resulting from “age and deterioration,” Smith estimated that the damage to the plaster caused by blasting could be repaired for $300. Thus, his estimate of the total cost of repairing the damage to the house resulting from the blasting was $315. Smith hastened to add that this sum would not cover “by a long ways” the cost of repairing or remedying the conditions resulting “from age and depreciation.” It was Smith’s opinion that the house was “forty to fifty years old; it was an old building, very much run down.” In his judgment, the blasting had done no damage to the foundation. He observed that “part of the foundation” was “entirely gone” but “it looked to me like it had been out for quite a long while.”

Defendant introduced in evidence twelve kodak pictures of the exterior of the house, one of which plainly shows the “gap” of several feet in the foundation. Without undertaking the ^impracticable, if not impossible, task of describing these views, it may not be inappropriate to comment that they tend to support the testimony of witness Smith as to the imprint of “age and depreciation” on plaintiff’s house.

All of the evidence as to the market value of plaintiff’s house and as to the estimated cost of repairing the damage thereto caused by blasting was opinion evidence, advisory in nature and in nowise binding upon the jury, whose province it was to determine the credibility and weight thereof, “in keeping with the general rule that a jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case. Hutchison v. Thompson, Mo., 175 S.W.2d 903, 911(9, 10); Williams v. Ricklemann, Mo., 292 S.W.2d 276; Combs v. Combs, Mo., 284 S.W.2d 423, 426(6).” Baker v. Brown’s Estate, 365 Mo. 1159, 1165, 294 S.W.2d 22, 27(13).

From the foregoing evidentiary review, it becomes apparent that, as is so frequently the case, the jury was offered a motley, incongruous assortment of views and values, but that the verdict for $1,150 was well within the range of the opinion testimony [State ex rel. State Highway Com’n. v. Warner, Mo.App., 361 S.W.2d 159, 161; Baker v. Brown’s Estate, supra, 365 Mo. at 1165, 294 S.W.2d at 27] as to the cost of repairing the damage done by blasting and thus restoring plaintiff’s house to its condition immediately prior thereto, which could have been done (if the testimony of defendant’s witness Recie Smith was believed) for a small fraction of the diminution in value claimed by plaintiff. See again Curtis v. Fruin-Colnon Contracting Co., supra, 363 Mo. at 686, 253 S.W.2d at 164(12). In actions involving alleged damage to property, it has been held repeatedly, not only in cases where the complaint has been of an allegedly excessive judgment but also in cases, such as this one, where the complaint has been of an allegedly inadequate judgment, that the opinion testimony of one qualified witness constitutes “substantial evidence” supporting an award of damages by the trier of the facts, and likewise that a judgment should not be disturbed on appeal “because of a disparity in the testimony of witnesses or even because of a seeming preponderance of the evidence one way or another.”

In the final analysis, instant plaintiff’s argument that the verdict for $1,1-50 was “wholly inadequate” actually is directed to the credibility of the witnesses and the weight to be accorded to their testimony, matters which were for the trier of the facts. Kansas City v. Thomson, Mo., 208 S.W.2d 216, 220(7, 8); Baker v. Brown’s Estate, supra, 365 Mo. at 1165, 294 S.W.2d at 27(12-15). See Board of Education of Bowling Green School Dist. R-1 v. Harness, Mo., 338 S.W.2d 808. We have no doubt but that the verdict was supported by substantial evidence and that plaintiff has not carried her burden of demonstrating here that the trial court erred in overruling the assignments in the motion for new trial directed to alleged inadequacy of the verdict.

We are aware of the statement that “in considering the question of inadequacy (or excessiveness) of an award as tending to indicate the bias, passion or prejudice of the jury, the appellate court may consider the size of the award in connection with other matters of record having a prejudicial tendency.” See Polizzi v. Nedrow, Mo., 247 S.W.2d 809, 811(3), where it was held that the “other matters” were nonprejudicial and a verdict of $100 for personal injuries did not justify a new trial. In Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618, where a similar statement was made [324 Mo. at 1083, 26 S.W.2d at 624], the court was dealing with a “shockingly inadequate” verdict of $1,000 for personal injuries returned in the teeth of “an abundance of competent disinterested testimony, fair on its face, of probative value, and wholly uncontradicted” [324 Mo. at 1080, 26 S.W.2d at 623], which was explainable only by “other matters of record having a prejudicial tendency” [Polizzi v. Nedrow, supra, 247 S.W.2d at 811], i. e., by “sinister influences” invited into the case during plaintiff’s cross-examination. [324 Mo. at 1083, 26 S.W.2d at 625]

In the case at bar, we lack (as heretofore pointed out) the essential predicate of a “shockingly inadequate” verdict. And the general rule being (as we have noted) that, where the jury has made a substantial award of damages, plaintiff will not be heard to complain upon appeal about the admission or exclusion of evidence [Stone v. Farmington Aviation Corp., supra, 360 Mo. at 1021, 232 S.W.2d at 499(4); Cochran v. Wilson, 287 Mo. at 228, 229 S.W. at 1056 (5); McCormack v. McNamee, supra, 274 S.W.2d at 279(10)], we well might pass without discussion grounds 1 and 2 specified in the order granting a new trial. Nevertheless, we record our findings and conclusions upon exhaustive inquiry into those matters in connection with our consideration of the size of the verdict.

Ground 1 specified in the order granting a new trial was that the court “erred in permitting defendant to prove the value of real estate in question in the year of 1947.” In the course of plaintiff’s cross-examination, it was shown that in 1947 she and her husband had paid $4,250 for the house and the five-acre tract on which it was situate. The essence of the objection of plaintiffs counsel, out of the presence of the jury, was that “before any other evidence can be introduced as to the purchase price, it is necessary for the defendant to establish that it is in the same condition, the same market — no further improvements; in other words, in the same condition it was then.” So the kernel of plaintiffs trial complaint was that the record was silent as to whether or not conditions or values had changed significantly during the sixteen-year interval between plaintiff’s purchase in 1947 and defendant’s blasting in 1963 (hereinafter referred to as the purchase-to-damage interval), and that the question was improper because defendant had not theretofore established affirmatively that there had been no such significant change. The rejoinder of defendant’s counsel was that the question was proper “at this time” in the absence of any evidence of change. The court agreed “that is the way I see it” and overruled the objection.

Plaintiffs appellate position is that “regardless of when the house was purchased, the interior was completely remodeled and cold water put into the house” and that “even an older house, if completely remodeled on the interior with water added, undergoes a significant change in value, which should he sufficient to destroy the probative force of the purchase price” and “this factor, plus the remoteness in point of time of the purchase, renders the purchase price paid inadmissible for any purpose.” (Emphasis ours) The herein-before-described work done by plaintiff and her children, to which plaintiff’s counsel upon trial referred as “some repairs to the house back in ’59” and which plaintiff herself agreed had been “repair work,” thus is translated and transformed, in the quoted appellate argument, into “the interior was completely remodeled.” A meticulous examination of the transcript establishes that, when plaintiff’s answer as to the purchase price of her real estate was received, the record was devoid of any evidence (a) as to the condition of the house in 1947, (b) as to any change in the condition of, or any work done on, the house during the purchase-to-damage interval, excepting only the herein-before-described “repair work,” alleged renewal of the roof, and addition of cold water plumbing, (c) as to any change in the reasonable market value of plaintiff’s real estate during the purchase-to-damage interval, or (d) as to any change in the market value of similar real estate in West Plains during the same interval.

The case first cited, and primarily relied upon, by both parties in their appellate discussion of this point is State ex rel. State Highway Com’n. v. Henderson, Mo.App., 381 S.W.2d 10, in which the reported opinion of Cottey, Sp. J., altogether merits the hackneyed encomium that it was well-reasoned. As did the court in Henderson, supra, we start with “the established rule in this state, and generally, that the price an owner paid for property being condemned is admissible as some evidence of its value at the time of appropriation.” It is sometimes said that the rule is not applicable where other circumstances are shown which destroy the relevancy or probative value of the evidence, as where the date of purchase is too remote to afford a reliable guide or where there have been marked changes in conditions and values since the date of purchase. But it is irrefutably sound and logical to conclude, as the court did in Henderson, supra, 381 S.W.2d at 12 (3), that: "... [M] ere remoteness in point of time is not the controlling factor in determining whether evidence as to the purchase price of the land is admissible. Under the rule quoted above such evidence is to be received for what it is worth, except where it appears that in the interval between the purchase and the appropriation [or the damage], whether that interval be long or short, conditions or values have changed so significantly that it can no longer be said that the purchase price is ‘some evidence’ of the worth of the land on the latter date. The change in conditions, not the lapse of time, is the determinative factor.”

Regardless of the language used to state the general principle and delimit its applicability, many of the cases confirm, indubitably by result if not expressly by language, the above-quoted holding in Henderson, supra, that “[t]he change in conditions, not the lapse of time, is the determinative factor.” [381 S.W.2d at 12 (3)] As we have seen, instant plaintiff’s primary emphasis has been upon an alleged change in the condition of the house itself, of which the evidentiary proof was scant indeed. Whether, by virtue of the lapse of time, there was a significant change during the purchase-to-damage period in the reasonable market value of plaintiff’s house in particular or of similar residential property in West Plains in general is not a matter of which the trial court in the first instance, or this court on appeal, properly could take judicial notice. For, although there were many economic changes during that period, nevertheless we know from “ ‘the official records of the census,’ ” of which we do take judicial notice [Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4); Missouri Public Service Co. v. Barton County Elec. Coop., Mo.App., 353 S.W.2d 818, 819(1)], that the population of 37 of the 44 counties within the territorial jurisdiction of this court declined during the decade from 1950 to 1960, and that, although the city of West Plains experienced a healthy gain in population from 4,918 to 5,836 persons during that decade, the population of Howell County (including West Plains) declined during the same period. And it is a matter of common knowledge that the reasonable market value of residential properties (of the same general character as plaintiff’s real estate) in some towns and communities in Southern Missouri has depreciated and in others has not appreciated significantly, if at all, during the period under consideration. For that matter, there have been divergent trends in the market value of frame residential structures in different areas of the same town. The matter of changes or trends in the reasonable market value of various categories of real estate in different towns and communities simply is not a subject which permits of easy, reliable generalization or of confident judicial knowledge without competent evidentiary proof.

When instant plaintiff was asked as to the purchase price of her real estate, “there was nothing in the record to indicate that it had appreciated perceptibly in value since the date of its purchase or that conditions in any other respect had changed so materially that its purchase price could no longer be regarded as ‘some evidence of its value at the time of the [damage].”’ Henderson, supra, 381 S.W.2d at 12. With the record in that state, the trial court was vested with some measure of judicial discretion as to whether the proffered evidence should be received or rejected [United States v. Becktold Co., C.C.A.Mo., 129 F.2d 473, 479 (16)]; and, mindful that we have found no Missouri case in which the judgment has been set aside on account of either reception or rejection of evidence as to purchase price [see the cases cited marginally in notes 16 and 18], we are of the opinion that, in admitting such evidence in the case at bar, the trial court was not guilty of an abuse of discretion and did not commit prejudicial error.

We have not overlooked the fact that, on redirect examination of instant plaintiff (subsequent to her testimony on cross-examination as to the purchase price of her real estate), counsel asked her to “state to the jury whether or not residence property in West Plains has increased much in value since ’47 to the present time” and, over defendant’s objection, plaintiff, utterly unqualified to give opinion testimony on that subject (insofar as the record shows), answered “yes, sir, it has.” Her counsel immediately followed with an inquiry as to whether plaintiff “had had opportunities to sell this property” prior to the blasting; and, when she agreed that she had, counsel put the grossly improper question, “would you tell the jury the amount of that; was that $8,000,” and evoked a confirmatory “yes, sir,” before defendant’s objection was sustained and the jury was instructed to disregard. As in Henderson, supra, if plaintiff’s counsel thought that, in the light of their client’s opinion that residence property in West Plains had increased in value since 1947, “a sufficient showing had been made to deprive the previously proven purchase price of all evidentiary value, then it was their duty to call that circumstance to the court’s attention and move to strike the testimony as to the purchase price of the [real estate], on the ground that it had become ‘incompetent and inadmissible . ’; and, ‘having failed to so proceed,’ they have ‘precluded our determination of the question of whether the evidence was inadmissible by reason of the subsequent testimony of [plaintiff].’ State ex rel. State Highway Commission v. Rauscher Chevrolet Company, supra, 291 S.W.2d 92; Malone v. Harlin, 220 Mo.App. 102, 278 S.W. 806, 808.” [381 S.W.2d at 13]

Ground 2 specified in the order granting a new trial was that the court “erred in permitting the evidence as to amount paid to plaintiff for real estate by the Missouri State Highway Department.” After plaintiff had testified that she had sold 2.96 acres of the original five-acre tract, she was asked “you sold that to the State, didn’t you ... as right-of-way it purchased . . . for $2,250” and answered “yes, sir,” before plaintiff’s counsel said “we object to that and ask that it be stricken out as not proving any issue as to damages to this residence,” and the court responded, “sustained; what she received for it from the State will be stricken from the record, and the jury is instructed to disregard it as to what she was paid for it.” It must be apparent that, in the first place, the transcript affords no support for ground 2 as stated, because the court did not “permit” this evidence in any sense of that term but, on the contrary, immediately sustained the objection thereto, struck the evidence from the record, and proceeding beyond the request of counsel instructed the jury to disregard. Furthermore, it has long been the rule that, save in exceptional circumstances, it is sufficient to direct the jury to disregard evidence improperly admitted, the presumption being that the jury followed the court’s direction; and some of the cases suggest that this rule is particularly applicable where, as in the instant action, there has been no motion for a mistrial on account of the objectionable evidence. The record before us reflects no exceptional circumstances which would take the case at bar without the operation of the stated rule.

The gravamen of plaintiff’s appellate complaint is that the alleged inadequacy of the verdict was “the inherent result” of “evidence erroneously admitted” as stated in grounds 1 and 2 specified in the order granting a new trial. Therefore, we will not further extend this already intolerably long opinion by detailed discussion of ground 3, i. e., “that because of the aforesaid [grounds 1 and 2], that the plaintiff was prejudiced when defendant’s attorney-asked that jury be permitted to view the real estate before said jury.” Granting that it would have been “better practice” for this request to have been made out of the presence of the jury [City of St. Louis v. Worthington, 331 Mo. 182, 196, 52 S.W.2d 1003, 1010], it was handled and ruled so carefully and tactfully by the court that it is to us inconceivable that the matter of the request and the refusal thereof could have constituted error prejudicial to plaintiff. Compare Smith v. St. Louis Public Service Co., supra, 277 S.W.2d at 502(4); Heggeman v. St. Louis Public Service Co., Mo.App., 255 S.W.2d 99, 104(3-5). Furthermore, plaintiff is in no position to complain about this matter, in view of the fact that, although still objecting to the fact that the request had been made in the presence of the jury, plaintiff’s counsel told the court, out of the presence of the jury, that “we have no objection to the jury inspecting the place.”

It is true that, as instant plaintiff emphasizes, appellate courts are liberal in sustaining orders granting new trials. But, although the trial court, in passing upon a motion for new trial, is invested with a considerable measure of discretion in passing upon questions of fact and matters affecting the determination of such questions, the discretion contemplated by the law is “a wise, judicial discretion” [Stark v. St. Louis Public Service Co., Mo.App., 211 S.W.2d 500, 504], not to be exercised arbitrarily or injudiciously by setting aside a verdict without the showing of some legal ground affording proper basis for such action. “In other words, it is not enough that [the trial court] merely be dissatisfied with the verdict, but it must have some good and compelling reason to warrant its dissatisfaction.” Stark v. St. Louis Public Service Co., supra, 211 S.W.2d at 504. And, no matter what the ground may be upon which it undertakes to act, a trial court is never justified in vacating a verdict except for error prejudicial to the party moving for a new trial.

Overruling all assignments in plaintiff’s motion for new trial directed to alleged inadequacy of the verdict, the trial court did not find the verdict either shockingly inadequate or (as plaintiff asserted) “wholly inadequate”; and neither do we, after carefully considering the size of the verdict in connection with the “other matters of record” [Polizzi v. Nedrow, supra, 247 S.W.2d at 811] said by plaintiff’s counsel to have constituted “sinister influences” [Grodsky v. Consolidated Bag Co., supra, 324 Mo. at 1083, 26 S.W.2d at 625] which “tainted the verdict.” Doubting (as we do) that the order granting a new trial could have been sustained anyway on the three grounds specified in the order, it is unnecessary for us to rest our decision on a ruling to that effect. For, regardless of that, the order granting a new trial was patently improvident and unjustified when the trial court did not find, and we cannot say, that the verdict was either shockingly inadequate or “wholly inadequate.” This was a comparatively simple case with a single principal issue, which was well and vigorously tried on each side by skillful, adroit, experienced counsel who neither sought nor gave quarter. There should be an end to the controversy.

It is the judgment of this court that the order of the circuit court granting a new trial to plaintiff be set aside, that the cause be remanded to the circuit court with directions to reinstate the verdict of the jury and to enter judgment thereon, and that the costs of this appeal be taxed against plaintiff-respondent.

RUARK, P. J., and HOGAN, J., concur.

      . State ex rel. Sturm v. Allison, Mo. (banc), 384 S.W.2d 544, 547(3); Burnett v. Johnson, Mo., 349 S.W.2d 19, 24 (6); Smith v. St. Louis Public Service Co., Mo., 277 S.W.2d 498, 502(1); Bailey v. Interstate Airmotive, 358 Mo. 1121, 1128, 219 S.W.2d 333, 335(2), 8 A.L.R.2d 710; Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 1191, 171 S.W.2d 610, 611(2).

      . Dial v. Seven-Up Bottling Co., Mo., 373 S.W.2d 53, 57(6) ; White v. St. Louis Public Service Co., 364 Mo. 111, 116, 259 S.W.2d 795, 798(2) ; Eilers v. Union Elec. Co., Mo.App., 386 S.W.2d 427, 431(8) ; Price Bros. Lithographic Co. v. American Packing Co., Mo.App., 372 S.W.2d 138, 139(1) ; State ex rel. State Highway Com’n. v. Flynn, Mo.App., 263 S.W.2d 854, 856(9).

      .And so it is concerning complaints as to the giving or refusing of instructions not relating to the measure of damages [Cochran v. Wilson, 287 Mo. 210, 228, 229 S.W. 1050, 1056(5); Craton v. Huntzinger, Mo., 187 S.W. 48, 53(8); State ex rel. State Highway Com’n. v. Southern Securities Co., Mo.App., 60 S.W.2d 632, 635(9); Broughton v. S. S. Kresge Co., Mo.App., 26 S.W.2d 838, 840(6); Edwards v. Missouri Ry. Co., 82 Mo.App. 478, 482-483(2)], and as to other trial irregularities having no demonstrable con-neetion with the amount of the verdict and not rendering it void ab initio. McCormack v. McNamee, Mo., 274 S.W.2d 272, 273(1).

      . State ex rel. Spears v. Hughes, 346 Mo. 421, 424, 142 S.W.2d 3, 5; Sakowski v. Baird, 334 Mo. 951, 956, 69 S.W.2d 649, 651; Yuronis v. Wells, 322 Mo. 1039, 1049, 17 S.W.2d 518, 523(5); Kersten v. Hines, 283 Mo. 623, 634, 223 S.W. 586, 589; Bradley v. Reppell, 133 Mo. 545, 560, 32 S.W. 645, 649, 34 S.W. 841.

      . State ex rel. Sturm v. Allison, supra, 384 S.W.2d at 547(4); O’Shea v. Pattison-McGrath Dental Supplies, 352 Mo. 855, 863, 180 S.W.2d 19, 23(8); State ex rel. Spears v. Hughes, supra, 346 Mo. at 424-425, 142 S.W.2d at 5; Schroeder v. Rawlings, 344 Mo. 630, 638, 127 S.W.2d 678, 683(8); Sakowski v. Baird, supra, 334 Mo. at 956, 69 S.W.2d at 651; Yuronis v. Wells, supra, 322 Mo. at 1049, 17 S.W.2d at 523(6); Berkemeier v. Reller, 317 Mo. 614, 621, 296 S.W. 739, 741 (3). See Overton v. Tesson, Mo., 355 S.W.2d 909, 913(4); City of Kennett v. Katz Const. Co., 273 Mo. 279, 287, 202 S.W. 558, 560(1).

      . Spica v. McDonald, Mo., 334 S.W.2d 365, 368(1); Donahoo v. Illinois Term. R. Co., Mo., 300 S.W.2d 461, 469(10); Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 1150, 238 S.W.2d 674, 681(14); Coghlan v. Trumbo, Mo., 179 S.W.2d 705, 706(4); Porter v. Smoot, Mo.App., 375 S.W.2d 209, 212(2).

      . Vogrin v. Forum Cafeterias of America, Mo., 308 S.W.2d 617, 622(5); Thompson v. Healzer Cartage Co., Mo., 287 S.W.2d 791, 792(2); Conner v. Neiswender, 360 Mo. 1074, 1077, 232 S.W.2d 469, 470(2); Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 11, 212 S.W.2d 915, 918 (5); Coghlan v. Trumbo, supra, 179 S.W.2d at 706(2); Porter v. Smoot, supra, 375 S.W.2d at 213(5, 6).

      . Miller v. Harner, Mo., 373 S.W.2d 941, 947(2, 3); Mitchell v. Mosher, Mo., 362 S.W.2d 532, 536(2, 3) ; Spica v. McDonald, supra, 334 S.W.2d at 368(2) ; Waller v. Oliver, Mo., 296 S.W.2d 44, 49(7, 8) ; Roush v. Alkire Truck Lines, Mo., 245 S.W.2d 8, 10(2-4) ; Conner v. Neiswender, supra, 360 Mo. at 1077, 232 S.W.2d at 470-471(3-5) ; Porter v. Smoot, supra, 375 S.W.2d at 212(3, 4).

      . F. W. Brockman Commission Co. v. Aaron, 145 Mo.App. 307, 318, 130 S.W. 116, 119(7); Lee v. Allen, Mo.App., 120 S.W.2d 172, 174(2); Jones on Evidence (5th Ed.), § 432, p. 818.

      . 20 Am.Jur., Evidence, § 833, p. 699; 32 C.J.S. Evidence, § 546(73), l.c. 292; Jones on Evidence (5th Ed.), § 426, p. 806.

      . Sunset Acres Motel, Inc. v. Jacobs, Mo., 336 S.W.2d 473, 484(18); In re Sixth Street, 276 Mo. 158, 168, 207 S.W. 503, 504(1); Widman Investment Co. v. City of St. Joseph, 191 Mo. 459, 474, 90 S.W. 763, 767 (3); Proceedings for Condemnation, Etc. v. National Engineering & Mfg. Co., Mo.App., 274 S.W.2d 490, 492(5).

      . Baker v. Brown’s Estate, 365 Mo. 1159, 1165, 294 S.W.2d 22, 27(12); State ex rel. Spears v. McCullen, 357 Mo. 686, 693, 210 S.W.2d 68, 72(11); Kimpton v. Spellman, 351 Mo. 674, 684, 173 S.W.2d 886, 892(11); Cities Service Gas Co. v. Peak, 227 Mo.App. 515, 520, 54 S.W.2d 482, 484(7).

      . City of St. Louis v. Buselaki, 336 Mo. 693, 702, 80 S.W.2d 853, 857(7) ; City of St. Louis v. Turner, 331 Mo. 834, 844-845, 55 S.W.2d 942, 945-946; Union Elec. Co. of Missouri v. Simpson, Mo.App., 371 S.W.2d 673, 683; Empire Dist. Elec. Co. v. Johnston, 241 Mo.App. 759, 768, 268 S.W.2d 78, 83.

      . Kansas City v. Thomson, Mo., 208 S.W.2d 216, 220(7) ; State ex rel. State Highway Com’n. v. Anderson, Mo.App., 367 S.W.2d 809, 811-812; Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27, 31(8).

      . City of St. Louis v. Gerhart Realty Co., 328 Mo. 103, 111, 40 S.W.2d 661, 665(12) ; Empire Dist. Elec. Co. v. Johnston, supra, 241 Mo.App. at 768, 268 S.W.2d at 83(8); State ex rel. State Highway Com’n. v. Anderson, supra, 367 S.W.2d at 811-812. See Widman Investment Co. v. City of St. Joseph, supra, 191 Mo. at 473-474, 90 S.W. at 767(4); Vanausdol v. Bank of Odessa, 222 Mo.App. 91, 104, 5 S.W.2d 109, 116(10); Missouri Public Service Co. v. Hunt, supra, 274 S.W.2d at 31.

      . State ex rel. State Highway Com’n. v. Rauscher Chevrolet Co., Mo., 291 S.W.2d 89, 92, 55 A.L.R.2d 773; State ex rel. State Highway Com’n. v. Schutte Investment Co., Mo., 334 S.W.2d 241, 246; State ex rel. State Highway Com’n. v. Henderson, Mo.App., 381 S.W.2d 10, 11(1). See City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 217, 168 S.W.2d 149, 155; City of St. Louis v. Turner, 331 Mo. 834, 843, 55 S.W.2d 942, 945(3); United States v. Becktold Co., C.C.A.Mo., 129 F.2d 473, 479(14).

      . Rauscher Chevrolet Co., supra, 291 S.W.2d at 92; Schutte Investment Co., supra, 334 S.W.2d at 246; Henderson, supra, 381 S.W.2d at 11; City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. at 217, 168 S.W.2d at 155(14).

      . So, on the one hand, in State ex rel. Highway Com’n. v. Malone, Mo.App., 45 S.W.2d 84, 86(6), where the appellate court criticized admission of evidence as to purchase price, “all of the testimony” had shown that condemnees’ farm had “depreciated in value” during the purchase-to-appropriation interval of “several” (apparently about ten) years — “an interval covering portions of two historic periods of depression in farm land values” [Henderson, supra, 381 S.W.2d at 12]; in State ex rel. State Highway Com’n. v. Pope, 228 Mo.App. 888, 74 S.W.2d 265, 270(15), where this court approved the trial court’s exclusion of evidence as to purchase price, we took judicial notice that “property had greatly depreciated in value generally” during the purehase-to-appropriation interval of five years, most of which was during that period known as “the great depression”; and, in Shelby County R-IV School Dist. v. Herman, Mo., 392 S.W.2d 609, 614(11), where evidence of the purchase price of con-demnee’s farm in 1941 had been received without objection, it was said that such evidence would have been subject to exclusion upon proper objection because “[t]he same result [as in Pope, supra] must follow where the time lapse is at least 23 years, during which period land values have greatly appreciated.” On the other hand, in City of St. Louis v. Paramount Shoe Mfg. Co., supra, 237 Mo.App. at 217, 168 S.W.2d at 155, evidence as to the purchase price some ten years prior to appropriation was “properly to be considered for whatever it was worth . . . ” ; in City of St. Louis v. Turner, supra, 331 Mo. at 843, 55 S.W.2d at 945 (3), the price paid for real estate in 1920 properly was admitted as “some evidence of the value” in the condemnation proceeding terminating in the reported opinion in 1932; in United States v. Becktold Co., supra, 129 F.2d at 479 (14-16), the trial court “in its discretion properly admitted” evidence as to the purchase price fourteen years prior to appropriation, the length of the intervening period going “to the weight of the evidence, rather than to its admissibility”; and, in State ex rel. State Highway Com’n. v. Johnson, Mo., 287 S.W.2d 835, 837(2), “evidence of the purchase price paid some twenty-five years prior to the appropriation was not criticized on the ground that so long a lapse of time rendered it ipso facto irrelevant.” [Henderson supra, 381 S.W.2d at 12]

      . Mayor, etc. of City of Liberty v. Boggess, Mo., 321 S.W.2d 677, 682(6); State ex rel. State Highway Com’n. v. Clevenger, 365 Mo. 970, 980-981, 291 S.W.2d 57, 63(3, 4); School Dist. of Clayton v. Kelsey, 355 Mo. 478, 484, 196 S.W.2d 860, 863(5); City of St. Louis v. Gerhart Realty Co., supra, 328 Mo. at 109, 40 S.W.2d at 664; Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27, 31(6).

      . E.g., Spears v. Schantz, 241 Mo.App. 879, 246 S.W.2d 399, 409-410(13, 14); City of Gallatin ex rel. Dixon v. Murphy, Mo.App., 217 S.W.2d 400, 408-409(14); National Cash Register Co. v. Kay, Mo.App., 119 S.W.2d 437, 440(4, 5); Chenoweth v. Sutherland, 141 Mo.App. 272, 124 S.W. 1065, 1056(5, 6).

      . Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79, 86(15-18); Evans v. Missouri Pac. R. Co., 342 Mo. 420, 426-427, 116 S.W.2d 8, 10(4, 5) ; Grott v. Johnson, Stephens & Shinkle Shoe Co., Mo., 2 S.W.2d 785, 787-788(1, 2); Salmons v. St. Joseph & G. I. Ry. Co., 271 Mo. 395, 197 S.W. 35, 36(3); Harrison v. Kansas City Elec. Light Co., 195 Mo. 606, 635, 93 S.W. 951, 960(6), 7 L.R.A.(N.S.) 293; Lithegner v. City of St. Louis, Mo.App., 125 S.W.2d 925, 930-931(8); Eth v. Kansas City, Mo.App., 63 S.W.2d 203, 205-206(3); Robinson v. McVay, Mo.App., 44 S.W.2d 238, 240(6); Karst v. Chicago Fraternal Life Ass’n., Mo.App., 40 S.W.2d 732, 735-736(3, 4), certiorari denied 284 U.S. 664, 52 S.Ct. 40, 76 L. Ed. 562; McCarter v. Burger, Mo.App., 6 S.W.2d 979, 981(4); Hamm v. Chicago, B. & Q. R. Co., 211 Mo.App. 460, 245 S.W. 1109, 1113(7).

      .Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 376, 188 S.W.2d 538, 546-547; Hanson v. City Light & Traction Co., 238 Mo.App. 182, 200, 178 S.W.2d 804, 812. See also Stith v. J. J. Newberry Co., 336 Mo. 467, 487, 79 S.W.2d 447, 457; 5A C.J.S., Appeal and Error, § 1737b, l.c. 1053. Contrast City of Gallatin ex rel. Dixon v. Murphy, supra, 217 S.W.2d at 408, and National Cash Register Co. v. Kay, supra, 119 S.W.2d at 439, where motions for mistrial were made and denied.

      . Mochar Sales Co. v. Meyer, Mo., 373 S.W.2d 911, 916(10); Stone v. Engler, Mo., 349 S.W.2d 38, 41(2); Shaffer v. Sunray Mid-Continent Oil Co., Mo., 336 S.W.2d 102, 106(1); Trump v. Ballinger, Mo., 317 S.W.2d 355, 357(2).

      . Bailey v. Interstate Airmotive, Inc., supra, 358 Mo. at 1134, 219 S.W.2d at 339 (10); Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 657-658, 223 S.W.2d 383, 386; Miller v. Dowling, Mo.App., 360 S.W.2d 345, 349(7); Wallace v. Whitzel, Mo.App., 324 S.W.2d 157, 160(4); Heggeman v. St. Louis Public Service Co., Mo.App., 255 S.W.2d 99, 104(3) ; McDonald v. Heinemann, Mo.App., 141 S.W.2d 177, 182(8).

      .Smith v. St. Louis Public Service Co., supra, 277 S.W.2d at 502(3); State ex rel. Missouri Mut. Ass’n. v. Allen, 336 Mo. 352, 359, 78 S.W.2d 862, 865(5); Wallace v. Whitzel, supra, 324 S.W.2d at 160(2); Heggeman v. St. Louis Public Service Co., supra, 255 S.W.2d at 104 (4); Stark v. St. Louis Public Service Co., Mo.App., 211 S.W.2d 500, 505(6); McDonald v. Heinemann, supra, 141 S.W.2d at 181(5).


source: Caselaw Access Project

author: HOGAN, Judge.

license: Public Domain

text:
    Bobby L. GASS, Claimant-Respondent, v. WHITE SUPERIOR BUS COMPANY and United States Fidelity & Guaranty Company, Defendants-Appellants.
    No. 8442.
    Springfield Court of Appeals. Missouri.
    Oct. 14, 1965.

      Robert W. Schroff, Mann, Walter, Powell, Burkart & Weathers, Springfield, for defendants-appellants.
    Gerald H. Lowther, James K. Prewitt, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for claimant-respondent.
   HOGAN, Judge.

This is an appeal from an order of the Circuit Court of Cedar County modifying an award of compensation to the respondent, Bobby L. Gass, under the provisions of the Workmen’s Compensation Law. The respondent’s claim for compensation is based on his assertion that he was injured while delivering a school bus for the employer. The employer and insurer have resisted the claim upon the ground that the claimant was not an employee within the meaning of Section 287.020, Subd. 1, but the Division of Workmen’s Compensation has found that he was, and has made an award of compensation and an allowance for necessary medical aid. Upon review, the Industrial Commission affirmed the finding that Bobby was an employee but reduced the amount of compensation. Both parties thereupon appealed to the circuit court, which restored the award originally made by the referee. The emloyer and insurer have appealed to this court as provided by Section 22, Article V, of the Constitution of 1945, V.A.M.S., and Section 287.490(1). The questions before us are: (1) Whether the respondent was an employee rather than an independent contractor when he sustained the injury involved, and (2) whether the claimant’s weekly rate of compensation should be computed at the statutory minimum, $16.00 per week, or at the sum of $38.26 per week, as originally found by the Division of Workmen’s Compensation.

Very briefly, the facts, taken most favorably to the result reached, are: The employer, now known as the White Bus and Equipment Company, is engaged in the sale, distribution and service of school bus bodies. Though their method of operation is not fully developed in the record, it appears that the buses are assembled either in Kosciusko, Mississippi, or Lima, Ohio, and are then driven to some destination specified by the purchaser. On occasion a school district purchasing a bus will supply its own driver, but it is part of the employer’s business routine to deliver the bus. It is at least inferable that there are a number of these drivers who are periodically engaged to make deliveries, though it does not appear in the record how the individual driver is selected nor whether some drivers are employed oftener than others. According to Mr. White, who is described as the “actual head” of the bus company, it is routine procedure to give the individual driver a check list which “describes the things that should be done to a school bus when you’re checking it out at a factory,” and the driver is also instructed to follow a prescribed route in making delivery, both for the convenience of the employer and the driver. The drivers are paid a fixed sum, are furnished with a release which allows them to take possession at the assembly point, and are expected to “furnish the gasoline, oil and everything else that it takes to make a bus go * * * to its destination.”

Floyd Gass, the claimant’s father, was the operator of a service garage and was also employed as a school bus driver at Greenfield, Missouri. Mr. Gass had been delivering buses for the employer over a period of several years, and at the time of the referee’s hearing in October 1963, he estimated that he had delivered 12 to IS school buses to various places, “generally to the schools.” On the occasion in question, Mr. Gass received a call from a Mr. Sanborn, described as the employer’s “sales representative,” and was engaged to deliver a school bus to the Sands Motel at Joplin, Missouri, for a school or school district at Webb City. Mr. Sanborn called Mr. Gass a short time later and advised him that a school bus for the Stockton, Missouri, School District would be ready at the same time and, as Mr. Gass described the conversation, “he said can you pick me up a driver and get both buses in service at the same time.” Mr. Gass stated that the claimant was available, and Bobby was engaged to drive the second bus.

Mr. G'ass was sent a release for each bus, dealer’s licenses to be put on the buses, and two checks, one for $65.00 and the other for $60.00. He endorsed one of the checks to the claimant and cashed the other, and it appears that Bobby understood the expense of the trip was to come out of the proceeds of his check. On this occasion Mr. Gass was given specific instructions to check various mechanical operations of the new bus which he was to drive, was given a designated route to follow in transporting the bus, was advised of the destination to which the bus was to be delivered, and was instructed not to drive the bus faster than 35 miles per hour for the first 200 miles; Mr. Gass repeated “the instructions that was given to me” to Bobby either “before we left home or at the time we got down there.” Bobby had never undertaken to deliver á school bus before.

On the basis of this instruction, Mr. Gass and Bobby took a commercial bus to Kosciusko, where they obtained the two vehicles and, in Mr. Gass’ words, “checked our buses together.” Bobby, being unfamiliar with the roads, “ * * * asked my dad if I could follow him and he said I could.” It was during this return trip that Bobby lost control of the bus he was driving, overturned, and sustained the injuries for which he seeks compensation.

In arguing their case here, the employer and insurer have based their first claim of error on the very broad ground that the evidence permits only the finding that Bobby was an independent contractor, and they say that since the evidence was not disputed the determination of his status was a question of law and not of fact. The respondent answers in the same very general vein, urging that the Workmen’s Compensation Act should be construed to include the largest possible class of employees, and that the Workmen’s Compensation Act must be construed to resolve all doubts in favor of the employee. Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 730, 73 S.W.2d 1011, 1015 [2, 3]; Baer v. City of Brookfield, Mo.App., 366 S.W.2d 469, 471 [6, 7]. The parties seem agreed as to the general principles involved upon this phase of the appeal, which are that the relationship of master and servant must exist for the claim to he compensable, and that the test.of the existence of that relationship is the right to control the means and manner of the service, as distinguished from controlling the ultimate results of the service. Coy v. Sears, Roebuck & Co., 363 Mo. 810, 815-817, 253 S.W.2d 816, 818-819 [1] ; McFarland v. St. Louis Car Co., Mo.App., 262 S.W.2d 344, 348 [5, 6], But regardless of the general rules of law involved, and assuming that since the evidentiary facts are not disputed, and the Commission’s conclusions are not binding on us, Corp. v. Joplin Cement Co., Mo., 337 S.W.2d 252, 258 [7], the adjudication of Bobby’s status quite candidly involves matters of individual judgment, for whether the claimant is an employee or an independent contractor “ * * * the relationship actually existing will be attended with many features and characteristics which might be none the less present if it were the other status that obtained.” Horn v. Asphalt Products Corp., Mo.App., 131 S.W.2d 871, 872. Generally, it is said that the determinative characteristic of the relationship of employee and employer is the employer’s reserved right to control the performance of the service rendered, Pratt v. Reed & Brown Hauling Co., Mo.App., 361 S.W.2d 57, 63, but of course the exercise of actual control by the employer may indicate his reserved right to control the employee’s actions. 1 Larson, Workmen’s Compensation, Section 44.32, page 644.

We recognize that, as the appellants argue, the job Bobby undertook in this case was not subject to actual physical supervision by the employer, but that does not necessarily mean that he was not subject to some measure of control. The same argument could be advanced in cases involving traveling salesmen and solicitors, yet our courts have recognized in such cases that sufficient control may be exercised over the details of the salesman’s work to make him a servant or employee within the meaning of the Act, rather than an independent contractor. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 1014-1015, 82 S.W.2d 909, 917-918 [22]; Baldwin v. Gianladis, Mo.App., 159 S.W.2d 706, 708-709 [4] [5]; Horn v. Asphalt Products Corp., supra, 131 S.W.2d at 872-874 [5]. Our review of the whole record convinces us that there was a substantial basis upon which to conclude that Bobby was an employee rather than an independent contractor. In the first place, the work to be done consisted first of making a check or test of the mechanical operation of the new bus. Mr. Gass and Bobby, before taking possession of the vehicles, were required to “check all hub bolts, check the grease, the transmission, the rear end, the oil bath cleaner, check all lights, buzzer on the rear door, check the lettering, fire extinguisher, flares, be sure and check the flasher lights and headlights.” They were also given specific instruction concerning the speed at which the new buses were to be driven for the first 200 miles. In our view, it could reasonably be inferred that this procedure was required as a matter of routine by the employer, for Mr. White, the “actual head” of the employer corporation, said that such mechanical tests were required by written instruction, and that “the form was there and they’re supposed to follow it.” We believe Mr. White was a competent witness to the duties required of both drivers, Ossery v. Burger-Baird Engraving Co., Mo., 256 S.W.2d 805, 809 [7], and that the imposition of the specific detailed duties constituted at least some evidence of the employer’s right to control Bobby’s performance, because that control was actually exercised. Further, the force and effect of Mr. Gass’ and Mr. White’s testimony was that a return route to the delivery point was prescribed in detail by the employer. True, this was at least partly for the convenience of the driver, but again White testified that “[the driver] should probably stay on those [highways] so in case you break down we will know how to get to you, or how to find you.” Here again is an indication that the employer had the right to control performance of the work, because actual control was exercised. Further, the services performed by Bobby and Mr. Gass were a part of the employer’s regular business of selling, distributing and servicing school bus bodies. This factual evidence is entirely consistent with the relationship of master and servant. Restatement (Second), Agency § 220(2) (h), pages 485-486, 489 (1958). Finally, there is evidence that Mr. White had the right to replace a driver at any time if the driver’s conduct was not satisfactory, and his testimony was that if the detailed instructions given a driver were not followed he would replace him, immediately if necessary. This evidence could reasonably be taken as proof that the emloyer could discharge a driver at any time, and tends to establish that the relationship between Bobby and the employer was that of employer and employee, rather than that of employer and independent contractor. Pratt v. Reed & Brown Hauling Co., supra, 361 S.W.2d at 63-64 [6], Admittedly, some of the incidents of Bobby’s employment are entirely consistent with a finding that he was an independent contractor, but that is often the case where the issue here presented is tendered. Horn v. Asphalt Products Corp., supra, 131 S.W.2d at 872. We must reject the appellant’s contention that Bobby was, as a matter of law, an independent contractor.

The appellants’ further assignment of error is that Bobby’s compensation rate should have been computed at $16.00 per week, the statutory minimum, rather than $38.26 per week, as originally fixed by the Division of Workmen’s Compensation. The parties are agreed that the amount allowed for necessary medical expense, $2,464.55, is reasonable, and they agree that if Bobby’s injury was compensable, and we hold that it was, he is entitled to 100 weeks of compensation for permanent partial disability and 20 weeks for a healing period. The appellants simply say that there was no evidentiary basis upon which to compute Bobby’s compensation rate at $38.26 per week; this requires a brief review of the evidence.

There was no testimony from the employer, by deposition or otherwise, indicating the general basis upon which drivers like Mr. Gass and Bobby were paid. Mr. White at one point indicated that a driver is paid $80.00 if he goes to Lima and $65.00 if he goes to Kosciusko, but the record is silent as to how these particular sums were fixed. It is clear that except for mechanical repairs, should any become necessary, the expense of the driver’s trip was to be paid by the driver from the sum advanced, and that the expense incurred on a particular trip would vary. Mr. Gass’ expense on this particular trip was $14.82 for transportation by commercial bus to Kosciusko, and $15.00, approximately, for incidentals. Bobby testified that he received $60.00 total payment, and that he incurred some expense but was unable to say how much. Bobby stated that he had bought some oil and gas but, when asked how much he had paid, said “I don’t remember it’s been too far back.” Mr. Gass and Bobby had “had a little chat and everything, ate dinner then, gassed up,” but, being pressed as to how much money he had left at the time of the accident, claimant candidly stated that he “ * * * didn’t remember nothing.”

The Division of Workmen’s Compensation considered that Bobby’s earnings, after expenses, were $30.14; that since he was engaged parts of two days in transporting the bus, his average daily earning was $15.07; and, basing his annual earnings upon a 200-day year, as provided by Section 287.250(5), computed the compensation rate at $38.26 per week. The Industrial Commission, on review, considered that the employee had failed to prove his compensation rate, because there was no reasonable basis to assume that Bobby’s expense was or should have been the same as Mr. Gass’ expense, and because the testimony of one witness would not be sufficient to establish “ * * * the annual earnings [of] persons of the same class in the same employment * * * ” so as to permit calculation under the provisions of Section 287.250(3). The Commission therefore fixed the compensation rate at $16.00 per week, the minimum allowed by law.

The trial court, upon its review, concluded that the compensation rate had been correctly computed by the Division and restored the award made by the Division, based on a compensation rate of $38.26 per week.

We have the view that the Industrial Commission’s finding was correct. There is authority which holds that the testimony of one witness is not sufficient to permit calculation of the employee’s wage basis under paragraph (3) of Section 287.-250, Fear v. Ebony Paint Mfg. Co., 238 Mo.App. 560, 569, 181 S.W.2d 559, 564 [9]; Werner v. Pioneer Cooperage Co., Mo.App., 155 S.W.2d 319, 322 [2], but there is nothing in the record to show that the Division fixed the compensation rate by the method provided in paragraph (3). Rather, it seems that the Division made its calculation by the method provided in paragraph (5) of Section 287.250. We have no fault to find with its method of calculation under that provision. If we assume that Bobby’s expense was the same as Mr. Gass’ expense, as the respondent says we should, then the compensation rate could properly be computed by dividing the total amount earned ($30.18) by the number of days actually worked (2), then multiplying the quotient by 200, as provided by Section 287.250(5), and dividing the product by 52 (weeks). This computation would yield the employee’s average weekly earnings, Noland v. George Tatum Mercantile Co., Mo., 313 S.W.2d 633, 637-638; Werner v. Pioneer Cooperage Co., supra, 155 S.W.2d at 321-322; and see Goetz v. J. D. Carson Co., 357 Mo. 125, 133-134, 206 S.W.2d 530, 535-536 [13], and the average weekly earning, so calculated and commuted to 66%% as required by Section 287.190(1), would be a sum very nearly that computed by the Division. On the other hand, the law requires, as both parties concede, that “ * * * sums which the employer paid to the employee to cover any special expenses entailed on him by the nature of the employment * * * ” be excluded from calculation of the earnings of the employee. Section 287.250(7) ; Reed v. Kansas City Wholesale Grocery Co., 236 Mo.App. 402, 410, 156 S.W.2d 747, 751-752 [3]. The Division’s computation involved the assumption that Bobby’s expense was necessarily the same as his father’s, and this in the face of proof that the amount of the expense varied according to the conditions of the vehicle, and in spite of evidence that Bobby’s trip was to be somewhat longer than that made by Mr. Gass. Bobby, of course, simply did not recall what his expense had been, and there was no testimony from the employer indicating why a driver was paid $60.00, $65.00, or some other amount. Upon careful examination of the record, we per'ceive no sound basis for the assumption that Bobby’s expense was the same as his father’s, and no “ * * * fact [may] be found, nor a claim or defense, nor an award be based upon mere speculation, suspicion or conjecture.” Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 815 [3]. At least, the award made by the Industrial Commission could reasonably have been made upon consideration of all the evidence, and it is not clearly contrary to the overwhelming weight of the evidence; we think its award, based on a compensation rate of $16.00 per week, must stand.

It therefore follows that the judgment of the circuit court should be modified by changing the amount of the award in accordance with this opinion and the finding of the Industrial Commission. It is so ordered, and, as modified, the judgment is affirmed.

RUARK, P. J., and STONE, J., concur.

      . Chapter 287, RSMo (1959). All references to statutes and rules are to that revision, unless otherwise noted.


text:
    Mona May SIMMONS, Plaintiff-Respondent, v. Ralph W. SHOMER, Defendant, and Murl Lee Jones, Defendant-Appellant.
    No. 8390.
    Springfield Court of Appeals. Missouri.
    Oct. 12, 1965.

      Meredith B. Turner, Kenneth H. Reid, Stewart, Reid & Turner, Springfield, for defendant-appellant.
    Arkley W. Frieze, Vernie R. Crandall, Frieze & Crandall, Carthage, for plaintiff-respondent.
   HOGAN, Judge.

This is an action for the wrongful death of plaintiffs husband. The plaintiff joined both defendant Jones, operator of the vehicle in which the deceased was riding, and defendant Shomer, operator of the vehicle with which the Jones car collided. Verdict and judgment were in favor of the plaintiff and against defendant Shomer in the sum of $12,000, but in favor of defendant Jones. Upon plaintiff’s motion, the trial court set the judgment aside and granted plaintiff a new trial as to both defendants, in each case upon discretionary grounds. Though we take it that in this situation both defendants were entitled to appeal, Quinn v. St. Louis Pub. Serv. Co., Mo., 318 S.W.2d 316, 321 [6], only defendant Jones has done so.

Shortly before 10:00 P. M. on July 6, 1962, defendant Jones, accompanied by the plaintiff’s husband and another companion, was driving north on the east side of Highway 39 at a point approximately seven-tenths miles south of the intersection of Highway 39 and Route FF in Lawrence County, Missouri. The road at this point is downgrade, and shortly after he “crested” or crossed the highest point on the hill, slightly south of the point of collision, defendant Jones met and passed a third, southbound, vehicle (referred to as the Buus car) behind which defendant Shomer was driving, wholly without lights. Immediately after defendant Jones passed Mr. Buus, the Jones and Shomer vehicles collided violently in the east or northbound lane. Both defendants and Mr. Simmons received injuries, and it is conceded that Mr. Simmons’ injuries caused his death.

Plaintiff’s petition was framed generally upon the theory that the two defendants, Jones and Shomer, were jointly and concurrently negligent, and the plaintiff alleged many acts of negligence on Jones’ part. The esssential basis of plaintiff’s case against Jones was, however, that Jones had caused the collision, or contributed to cause it, by blinding the oncoming (Shomer) vehicle with his lights, in violation of Section 304.370. The case was finally submitted against Jones on humanitarian negligence in failing to “cease” blinding Shomer, to give warning by dimming his lights, and in failing to slacken or turn aside, and upon primary negligence in driving and operating his automobile with his lights on high beam when Shomer was within 500 feet. All other assignments were of course abandoned. Brooks v. Stewart, Mo., 335 S.W.2d 104, 105, 81 A.L.R.2d 508; Guthrie v. City of St. Charles, 347 Mo. 1175, 1182, 152 S.W.2d 91, 93 [1].

The essence of appellant’s position in this court is that the trial court erred in granting plaintiff a new trial as to him in particular because there was no evidence adduced from which it could reasonably be inferred that any negligence on his part was a proximate, contributing cause of the collision. The new trial as to defendant Jones was granted on the discretionary ground that the verdict was against the weight of the evidence, and it is true, as the respondent says, that a ruling on that ground will not be disturbed on appeal if there is substantial evidence to support a verdict for the party to whom a new trial is granted. Schmidt v. Allen, Mo., 303 S.W.2d 652, 659 [19, 20]. However, it is also true that causation is an essential element either of a humanitarian case, Moore v. Ervin, Mo., 374 S.W.2d 142, 149 [4], or a primary case, Gaffner v. Alexander, Mo., 331 S.W.2d 622, 628 [5], and even concurrent negligence must be shown to have been a proximate cause of the injury. Reed v. Shelly, Mo.App., 378 S.W.2d 291, 301 [22]; 38 Am.Jur. Negligence, Section 64, pp. 718-719. And if, upon the whole record, considering the evidence in a light most favorable to the plaintiff and giving her the benefit of all reasonable inferences to be drawn therefrom, the plaintiff made no submissible case upon the issue of causation, the order granting her a new trial as to defendant Jones is erroneous and must be set aside. Rose v. Thompson, 346 Mo. 395, 401-402, 141 S.W.2d 824, 828-829 [3] [4, 5]. A careful consideration of the record convinces us that the decisive issue in this case is whether in fact the evidence justifies the inference that there was a causal relation between the defendant’s acts, charged and submitted as negligence, and the injury sustained, or whether the casualty would have occurred, regardless of defendant’s conduct.

This tragic casualty, as we have said, occurred on Highway 39 in Lawrence County. The date was July 6, 1962, and the time was shortly before 10:00 P.M. The road is a blacktop highway approximately 20 feet wide, runs north and south, and is marked in the center by a black and white line. The shoulder on the east side of the pavement is approximately six feet wide, and there is a “drop-off” from the shoulder, which is not literally vertical but is rather steep, some two or three feet deep.

To establish the location of the collision and the general lay of the land, the plaintiff introduced several photographic exhibits, the testimony of a photographer, and the testimony of two members of the State Highway Patrol who were present shortly after the collision. Generally, it was shown through the exhibits and the testimony of these witnesses that the two defendants’ vehicles collided head on on the east side of the highway between the crest, or high point, of a hill south of the place of collision and a gentler rise, or “knoll,” to the north.

Trooper Harold Stephens, called by the plaintiff, testified: That in response to a radio report he arrived at the scene of the casualty at about 10:00 P. M. Trooper Stephens located the point of collision as being on Highway 39 (which runs north and south) seven-tenths miles south of county road “FF,” which runs east and west. The two damaged vehicles were located in the northbound lane on the east side of the highway at a place “in a westerly direction” from a utility pole on the east side of the right-of-way, which the witness had located as a reference point. Measurements had been made by this witness in connection with a criminal action against Mr. Shomer, and these measurements generally established the distance from the “approximate top of the crest” of the hill (south of the place of collision) to the utility pole as being 279 feet and the distance from the same point to the crest of the knoll to the north as being 531 feet. The witness also testified that from the point of collision, looking back to the south, one could not see the crest of the hill, but he also testified that there was no obstruction to a motorist’s view from the crest of the hill (to the south) to the crest of the knoll. By referring to the photographic exhibits. Trooper Stephens located the point of impact as being approximately in the center of the east lane, 279 feet north of the crest of the hill.

On cross examination, and again by reference to photographs, Trooper Stephens testified that from south to north the grade is uneven and that there is a “bump or hump” in the grade, creating a “blind spot” for a northbound driver in which oncoming traffic would be momentarily obscured. This irregular “bump or hump” was about halfway between the crest of the hill and the point of impact, and the blind spot was “just north” of the “hump.”

The plaintiff also called Trooper Roy Foss, who had participated in the investigation of the accident, and Trooper Foss, for the most part, corroborated Trooper Stephens’ measurements and observations, and in addition he testified that at the point of impact there were double yellow lines on either side of the median line, placed there to warn a motorist that the view ahead “is obstructed and dangerous to pass” in. The witness also stated that the shoulder to the east of the place of collision was not straight down but is “rather steep,” being two or three feet, and Trooper Foss was permitted to say that he would not consider it safe for a car going 50 to 55 miles an hour to turn off onto that shoulder.

This witness’ description of the lay of the land was that a northbound motorist, traveling north from the crest of the hill, would go generally downslope “at a pretty good angle, and then, up over a small knoll, and then, down again and rather sharply up another hill.” The downgrade from the crest of the hill, in other words, runs along gently for a short way and then becomes “rather a sharp drop in the road,” and the two vehicles collided on the more abrupt grade. Trooper Foss, on the basis of his observation, testified that there was unobstructed level vision from the crest of the hill to the south to the crest of the knoll to the north, and being asked if there was any obstruction to one’s vision from the crest of the hill north to the approximate point of impact, he answered that “the view ahead was not obstructed at that * * * point.”

As tending to show the characteristics of the terrain, the plaintiff also offered the evidence of Mr. Charles Winston, a commercial photographer. So far as it is material here, Mr. Winston’s testimony tended to confirm plaintiff’s theory that an approaching vehicle could be seen over the “hump” or irregularity in the downslope over which a northbound motorist would travel, and indeed one of Mr. Winston’s photographs shows plainly that from the crest of the hill south of the point of impact, under daytime conditions, a northbound driver could see 420 feet ahead.

To establish the actual sequence of events, the plaintiff called her two party-opponents, Mr. Ralph Shomer and the appellant. Mr. Shomer (who has not appealed) testified that on the day in question he had been working in Arcadia, Kansas. Earlier in the evening, Mr. Shomer picked up his car at Mt. Vernon, where he had left it on his way to work. Before leaving Mt. Vernon, Mr. Shomer had drunk one beer at a “beer joint” and had “played a couple of games of shuffleboard.” About 9:30 P. M., Mr. Shomer left Mt. Vernon, drove a short distance east on Highway 166, and turned south on Highway 39. Mr. Shomer’s lights were working when he turned south on Highway 39, and on one occasion he dimmed his lights for an oncoming car and was able to return them to high beam. At the intersection of FF highway and Highway 39, however, Mr. Shomer dimmed his lights and “they went out" about “half mile or a mile” from the place of collision. After that, there were no lights at all on his vehicle.

Up to that point, Mr. Shomer had been traveling about 40 miles an hour, and he then slowed to “I imagine 20, 25 miles an hour.” After the lights on his vehicle went out, Mr. Shomer was able to see 10 to 15 feet ahead of him. Another southbound automobile (the Buus car) overtook and passed Mr. Shomer, and since he had no lights on his own vehicle he undertook to increase his speed so he could follow the Buus vehicle a short distance and turn onto a nearby crossroad. It was then, as he could “just barely” see the taillights of the Buus vehicle ahead, that “there was just four bright lights and that is the last thing I remember.” Mr. Shomer was then going 15 or 20 miles an hour and said that he “ * * * was on the right side of the road at first, and then, I got blinded and I didn’t know where I was at.” Mr. Shomer’s estimate of the distance between him and Mr. Jones’ oncoming car, as the lights shone on him and blinded him, was 100 feet, although he qualified this estimate during the course of his examination by saying that he really “didn’t know” how far the Jones headlights were from him when he was blinded. Mr. Shomer was unable to estimate Mr. Jones’ speed because “it all happened so quick.” Mr. Jones’ headlights were not dimmed from the time he saw them until the cars collided, and Mr. Shomer stated he had seen a reflection from the Jones lights before they were “turned in [his] eyes.” Mr. Shomer testified that he had no conscious memory of anything which occurred after he was blinded by the lights. It is conceded that Mr. Shomer sustained serious injuries in the accident.

On cross examination, it was brought out that Mr. Shomer had entered a plea of guilty to the charge of manslaughter in connection with this casualty, and that the information to which he had pleaded contained the allegation that he had driven his vehicle on the left side of the highway at a place where the view ahead was obstructed, without lighted headlamps. It was shown also that Mr. Shomer had received a sentence of two years’ probation upon his plea of guilty. In response to further questions, Mr. Shomer stated that he had been “completely blinded,” and that “when I got blinded, I must have turned to the left,” but he could not remember turning either right or left.

Mr. Jones testified that on the occasion in question he was returning from a fishing trip at a nearby lake. He had begun this return trip about 8:00 P. M. and was driving a relatively new automobile in good mechanical condition. Mr. Jones said that the car was equipped with multiple-beam headlights, which show four lights when on bright and two when on low beam. These lights were in good condition and working properly at the time of the collision. The weather was clear and dry. When Mr. Jones first saw the Shomer vehicle it was completely on the east half of the roadway, moving straight to the south. Mr. Jones’ lights were on bright at the time of collision.

Before meeting the Shomer car, Mr. Jones met another vehicle (the Buus car) going south, with its headlights on. When he met this car, Mr. Jones dimmed his lights, and “just as I met and passed it, I put my lights back on bright.” Mr. Jones “then saw this other [Shomer] car coming towards me.” Mr. Jones was then on a downslope, going down, and the Shomer car was “approximately 125 to 150 feet” away. Jones was going 50 to 55 miles an hour, and he applied his brakes. In his judgment, the Shomer car had been 160 to 170 feet behind the Buus car when he first saw Shomer.

Defendant Jones adduced evidence from the occupants of the Buus car, including James Buus, 21, the driver of the vehicle. On the occasion in question, Mr. Buus, his brother, and a Mr. Bill Wright were driving south in a 1957 Chevrolet two-door “hardtop.” When Mr. James Buus first saw the Shomer vehicle it was traveling in the right lane, or the “southbound side.” The lights (on the Shomer car) “were out.” Mr. Buus was going about 40 miles an hour, and he passed Mr. Shomer north of the junction of Highway 39 and FF, “somewhere along by the new ranch-type house on the right side of the road. * * * ” As he passed the Shomer car, Mr. Buus’ brother called out, “[T]urn your lights on.” After he passed Mr. Shomer, Mr. Buus started speeding up and was going 65 miles an hour when the casualty occurred. Mr. Buus actually saw the collision, stating that he “seen it in the mirror,” “seen the cars hit and go up.” Mr. Buus would estimate that, as he met Mr. Jones, Shomer was “around 100 feet” behind him, and when Buus glanced in his rearview mirror Shomer was “on the left side as you are traveling south.” Mr. Buus “wasn’t to the top of the hill whenever we [Buus and Jones] met.” Mr. Buus estimated that “it couldn’t have been” as long as three or four seconds between the time he met Mr. Jones and the moment of impact, and stated that “it wasn’t total darkness” because there was a moon out that night. Mr. Buus could not recall whether Mr. Jones had dimmed his lights or not. With some variation not material here, the other two occupants of the Buus vehicle related the facts substantially as Mr. James Buus testified. Mr. Wright estimated that Mr. Shomer was only 50 to 75 feet behind the Buus vehicle, while Mr. Buus’ brother would “say about 150 feet”; Mr. Buus’ brother was able to say definitely that Mr. Jones’ lights were on high beam when he first saw Jones, and he fixed the point where the Buus vehicle passed Mr. Jones as being three-quarters of the way up the hill.

In our view, the merits of this appeal turn on the question whether the plaintiff’s proof, granting it the most favorable intendment, establishes a causal connection between the appellant’s breach of duty— failure to dim his lights or turn aside— and the injuries sustained. It is true enough that there is a primary duty to dim or deflect dazzling headlights, and generally, in cases involving a breach of that duty, the question of causation, upon conflicting evidence, has been held to he a matter for the trier of fact. Robb v. Wallace, Mo., 371 S.W.2d 232, 235 [1-3]; Anno., 22 A.L.R.2d 427, 429-430 (1952). Nevertheless, it is recognized in those cases, as in others involving negligence, that a breach of duty is not actionable unless a causal connection is established between the negligent act and the injury, Fuller v. Baxter, Mo.App., 284 S.W.2d 66, 68 [2, 3], and if the casualty was inevitable even if the defendant had dimmed his lights — in a word, if the accident would have happened anyway — there can be no recovery. Garey v. Anco Manufacturing & Supply Co., 8 Cir., 221 F.2d 683, 687 [1, 2]; Southeastern Liquid Fertilizer Co. v. Mock, 92 Ga.App. 270, 88 S.E.2d 531, 532 [1]; Barton v. State Farm Mutual Automobile Ins. Co., La.App., 158 So.2d 375, 376; Brock v. Robinson, 97 N.H. 334, 88 A.2d 306, 307 [1]. We think this is true whether the negligence submitted here is regarded as primary or humanitarian negligence, for the familiar chant of the humanitarian ritual requires that there be “time thereafter,” Massman v. Kansas City Pub. Serv. Co., Mo., 119 S.W.2d 833, 836; Byrnes v. Poplar Bluff Printing Co., Mo., 74 S.W.2d 20, 26, and the humanitarian plaintiff must establish by substantial evidence that after the humanitarian duty arose the defendant yet had time and space available in which to avoid the casualty. Moore v. Ervin, supra, 374 S.W.2d at 149 [3, 4]; Yeaman v. Storms, 358 Mo. 774, 778-779, 217 S.W.2d 495, 498-499 [2]; Hampton v. Raines, Mo.App., 334 S.W.2d 372, 376-377 [3, 4].

It is precisely in this respect that we believe the plaintiff’s case fails against the appellant. Because the trial court’s order was based on a discretionary ground, we are reluctant to set it aside, and we have therefore set forth and examined the evidentiary detail of this case at some length. However, upon the record presented, it is simply not established by substantial evidence that the appellant could, or in the exercise of the highest degree of care should, have seen the Shomer car sooner than he actually saw it, by which time “the possibility of salvation [was] too clearly foreclosed,” 2 Harper & James, Torts, Section 20.2, pp. 1113-1114 (1956), for the appellant’s conduct to be regarded as a legal cause of the injury.

As a beginning point of reference, the plaintiff established that the appellant crossed the “crest” of a hill, traveling north at a speed of 50 to 55 miles an hour. Traveling south toward the appellant were, first, the Buus car, which he was meeting, and behind the Buus car — at least initially— the Shomer vehicle, which was wholly without lights. The contour of the highway over which the vehicles were traveling was described by the witnesses as being downgrade, but unevenly so, and as a motorist traveled north, as appellant did, he went first gently downgrade from the crest of the hill, then over a slightly elevated hump in the downgrade, and then more sharply downslope to the point of collision, which was about 279 feet south of the highest point of elevation, or the “crest.” By means of photographic exhibits, it was established that under daytime conditions the top of an automobile approaching the point of collision from the north could be seen 420 feet from the crest or highest point to the south. Both witnesses who helped investigate the accident testified that the uneven downward grade created a “blind spot” where a car would go out of sight as it approached from the north (as Shomer did), although one of them testified, again referring to daytime conditions, that the appellant had unobstructed level vision from the crest of the hill to the south to a knoll 531 feet to the north. The measurements and observations upon which this testimony was based were made, for the most part, in January 1964 in connection with the criminal prosecution against Mr. Shomer. Some of the photographs, of course, were made the day following the accident, and these photographs, together with the oral testimony, established that the point of collision was wholly in the east or northbound lane. Again, however, we emphasize that they are daytime photographs.

- The only testimony in the record concerning the positions of the Buus car and the Jones vehicle when they met on the downgrade comes from the occupants of the Buus vehicle. This testimony makes it appear that Jones had passed the crest of the hill and had started downgrade when he met and passed the Buus vehicle. The position of Mr. Shomer’s vehicle (wholly unlighted) behind Buus at the time Buus and Jones met and passed is problematical, but the tenor and substance of Mr. Shomer’s testimony, viewed most favorably to the plaintiff, is that he was attempting to follow the taillights of the Buus vehicle to an intersecting side road a short distance south of the place of collision. Though Mr. Shomer stated upon trial that he was “on the right side at first and then * * * got blinded * * * and didn’t know where [he] was at,” the reasonable inference from the record is that as Jones, going north, met Buus, going south, Shomer was behind Buus attempting to follow him, though as we understand Mr. Shomer the implication of his testimony is that when the Jones lights shone on the Buus vehicle he was “blinded” by Jones’ dazzling lights and then began to turn to his left. Mr. Shomer’s estimate of the distance between him and Jones, when Jones’ headlights first shone in his face, was 100 feet, although he substantially retracted this estimate later in the course of his examination.

The actual amount of illumination of the general area where the collision occurred is also a matter of speculation. Both Buus and Shomer testified to seeing Jones’ approach from the south by reflected light, but Mr. Shomer testified that the night was so dark he could only see 10 to 15 feet ahead after his lights went out. Mr. Buus and his companions testified that there was enough reflected light for them to see Shomer to their rear (north) shortly before the accident occurred, and they attributed this illumination to the moon. Other evidence indicated that the moon did not rise that night until after the accident occurred.

Thus, we have a situation in which the appellant, with his lights on high beam, driving over hilly terrain at a lawful speed, meets an oncoming vehicle (presumably properly lighted), behind which there is another unlighted vehicle, at least initially, in a concealed position of danger While we know that rays of light coming from different sources (the appellant’s headlights and those of the oncoming Buus vehicle) blend into a composite illumination, Lynch v. Missouri-Kansas-Texas R. Co., 333 Mo. 89, 97, 61 S.W.2d 918, 921, and it may have been that the appellant could or in the exercise of the highest degree of care should have seen Mr. Shomer before he passed the Buus car, there is nothing in the record to show that Shomer should have become visible before Jones and Buus met and passed. Though the case law is somewhat ambiguous as to what perils a motorist must anticipate or foresee at a particular time, we believe that, in the circumstances presented, the presence of the Shomer vehicle upon the road without lights, either concealed or partially concealed behind the oncoming Buus car, was not within that class of risk which the appellant was bound to anticipate. Freightways, Inc. v. Stafford, 8 Cir., 217 F.2d 831, 836; Smith v. Producers Cold Storage Co., Mo.App., 128 S.W.2d 299, 304-305 [9]; Schofield v. Druschel, 359 Pa. 630, 59 A.2d 919, 922 [2-6], And considering the hilly contour of the highway as well as Shomer’s position on the road behind Mr. Buus, we can discover nothing in the record which would furnish the jury with any substantial basis for concluding that Shomer should have been visible before Buus was out of the way, so to speak. It is true enough that the plaintiff went to some length to establish the field of view which a northbound motorist would have without any other vehicle on the road, under daytime conditions, but we decline to accept this as proof of what the appellant should have seen under the conditions of illumination obtaining at the time the accident occurred. Nor can we rely upon the photographs taken under daytime conditions to establish the appellant’s field of vision ahead at night, Scott, Photographic Evidence, Section 90, pp. 97, 102 (1942); see Freightways, Inc. v. Stafford, supra, 217 F.2d at 836-837 [8], and we decline to accept them as having any probative value in establishing that Mr. Jones should have seen the Shomer car sooner than he testified he actually saw it. To reiterate our conclusion, the testimony and proof presented furnished no substantial basis for a jury to find that Shomer was or should have been visible to Mr. Jones before he passed the Buus vehicle.

To discover, then, if sufficient time remained for effective action after Mr. Shomer was discovered by the appellant, we are remitted to a consideration of the estimates of time and distance which appear in the record. We find it unnecessary to explore the appellant’s argument that these estimates have the binding effect of admissions, since they were brought out through an examination of the appellant’s adversaries as witnesses. Ordinarily, a party is not bound by his estimates of speed and distance, Fenneren v. Smith, Mo., 316 S.W.2d 602, 608, and we have simply considered here that the plaintiff was entitled to the “happiest and most favorable combination of facts which can be picked or inferred from the whole evidence * * Montgomery v. Petrus, Mo.App., 307 S.W.2d 24, 27 [3, 4],

Considering the estimates of speed and distance most favorable to the plaintiff, we find Mr. Shomer testified that his “best judgment” was that Mr. Jones was 100 feet away when the lights of the Jones car first shone on him and blinded him. He later qualified this estimate so thoroughly that we hesitate to take it into account; at one point in his examination, Mr. Shomer stated that he really “[didn’t] know” the distance. At another point, Mr. Shomer said that he was “totally blinded” when the oncoming (Jones) car “topped this crest,” but we cannot judge the defendant’s duty by this remark for, as^ we understand the record, the Buus car was still ahead of Mr. Shomer, and we cannot accurately say that Jones either saw or should have seen Shomer at that time.

The appellant, in describing the accident, said that when he “flashed his lights back up on high beam,” after passing Mr. Buus, he saw the Shomer car 125 to 150 feet away, directly in front of him in the east lane. Jones was then going 50 to 55 miles an hour, and he applied his brakes, but the two cars collided head on. We can find no other estimate in the record which, realistically construed, allows the appellant further than 150 feet in which to act, at a speed of 50 miles an hour. Mr. Shomer’s estimate of speed most favorable to the plaintiff’s case was that he was- going 15 or 20 miles an hour.

As the Shomer car came into view, then, there were 150 feet left in which the appellant could act. The distance between the two vehicles was being closed at a combined speed of 65 miles per hour, or 95.4 feet per second. Assuming that the speed of the Jones car was only slightly diminished, as it appears to have been by Mr. Jones’ braking effort, the distance between the two vehicles was closed in a little over 1.5 seconds, of which three-quarters of a second was consumed by Mr. Jones’ reaction time. This simple calculation makes our conclusion plain: There is no substantial evidence establishing the essential fact that the appellant could have avoided the accident after he first saw the Shomer car in his headlights. In reaching this result, we have taken into consideration the testimony of Mr. Shomer that Mr. Jones’ headlights were never dimmed at any time, although there was testimony to the contrary, and we have carefully searched the record for some estimate of speed and distance which could be reasonably construed as allowing the appellant more time in which to act. Our conclusion is that we must, and we do, hold that no submissible case was made against the appellant, either upon primary or humanitarian negligence. Moore v. Ervin, supra, 374 S.W.2d at 149 [3, 4]; see Hampton v. Raines, supra, 334 S.W.2d at 376-377 [3, 4]. For that reason, the order granting a new trial to the appellant was erroneous, and we so rule.

The appellant has also assigned error to the trial court’s ruling granting plaintiff a new trial as against his co-defendant, though Mr. Shomer has made no complaint of the judgment rendered against him and has not attempted to appeal. We find it unnecessary to consider whether the appellant has the right to appeal from the order granting plaintiff a new trial as against his co-defendant, see Stutte v. Brodtrick, Mo., 259 S.W.2d 820, 823 [1]; White v. Kuhnert, Mo.App., 207 S.W.2d 839, 841 [3], for in view of what we have said, the appellant could in no event be held liable. Our conclusion is that the verdict of the jury in favor of the appellant should be reinstated, and held in abeyance until after the new trial as to defendant Shomer. A new judgment should then be entered. Neal v. Curtis & Co. Manufacturing Co., 328 Mo. 389, 419, 41 S.W.2d 543, 557 [30, 31]. It is so ordered.

RUARK, P. J. and STONE, J., concur.

      . References to statutes are to RSMo. (1959), V.A.M.S. and V.A.M.R.