author: CULLEN, Commissioner.

text:
    Raymond O. BAKER, Appellant, v. David L. DAVIS, Warden, Kentucky State Reformatory, et al., Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    Raymond O. Baker, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Raymond O. Baker, a prisoner in the state penitentiary, appeals from a judgment of the Oldham Circuit Court dismissing his petition for a writ of habeas corpus.

The ground on which the writ was sought was that Kentucky had waived or forfeited its jurisdiction to rcconfine him, for a parole violation, because prior to the reconfinement he was released to federal authorities for trial and service of a sentence on a federal charge.

Exactly the same ground, supported by the same arguments and evidence, was the basis of a previous petition by Baker for a writ of habeas corpus. The circuit court denied relief on that petition and on appeal to this Court the judgment was affirmed. Baker v. Commonwealth, Ky., 378 S.W.2d 616.

The Supreme Court of the United States holds, as respects successive petitions for habeas corpus, that if (1) the same ground presented in the subsequent petition was determined adversely to the petitioner on the prior petition, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent petition, the court may in its discretion deny a hearing on the subsequent petition. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148. All of those factors are present here, plus the factor that Baker had the benefit of appellate review of the determination on his previous ■ petition.

We think the rule followed by the Supreme Court is well adapted for application to habeas corpus proceedings in the state courts. We shall use it. Under the rule the circuit court was warranted in dismissing Baker’s petition.

The judgment is affirmed.


source: Caselaw Access Project

author: MILLIKEN,

license: Public Domain

text:
    Glenn SHORT, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    Glenn Short, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   MILLIKEN,

Chief Justice.

The question presented by this appeal is whether the lower court properly dismissed the petition of habeas corpus.

Appellant, Glenn Short, was found guilty of the crime of armed robbery at the September, 1963, term of the Fayette Circuit Court and given a life sentence. He did not appeal the conviction to the Court of Appeals and was confined in the State Penitentiary at Eddyville. On April 29, 1964, he filed a petition for habeas corpus in the Lyon Circuit Court. A hearing was held on the petition and the court sustained the motion of the Commonwealth to dismiss on the ground that the prisoner had not exhausted the remedy available to him under RCr. 11.42.

The lower court properly dismissed the petition for the reason that appellant had not attempted to obtain relief by a motion under RCr. 11.42 and there was no showing that the remedy by such motion is inadequate. Ayers v. Davis, Ky., 377 S.W.2d 154; Jones v. Thomas, Ky., 377 S.W.2d 155; Burton v. Thomas, Ky., 377 S.W.2d 155.

The judgment is affirmed.

Judge Montgomery dissents on the grounds stated in Ayers v. Davis, Ky., 377 S.W.2d 154, 878.


author: MILLIKEN, Chief Justice.

text:
    J. P. KAREM, Petitioner, v. Harold R. MARQUETTE, Judge, Jefferson Circuit Court, Common Pleas Branch, Second Division, Respondent.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    Fred J. Karem, Louisville, for petitioner.
    E. P. Sawyer, Robert Hubbard, Louisville, for respondent.
   MILLIKEN, Chief Justice.

The petitioner, J. P. Karem, has filed an original action in this Court denominated “Petition for Writ of Prohibition” in which he prays this Court to direct the Hon. Harold R. Marquette, Judge of the Jefferson Circuit Court, Common Pleas Branch, Second Division, “to set aside his Order of July 27, 1964, and to reinstate the Order of December 13, 1963, dismissing the Complaint of Blanche Stout” as to this petitioner. The counterclaim of the petitioner against Blanche Stout was left unadjudi-cated.

The later order had rescinded the former order which had dismissed Blanche Stout’s complaint without declaring that “there was no just reason for delay” and that “the judgment (of dismissal) is final” as required by CR 54.02 which further declares: “In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims.” Also, since the petitioner has an adequate remedy by appeal, he may not invoke the extraordinary remedy here sought.

The petitioner’s request is denied.


author: PALMORE, Judge.

text:
    Luke BURTON, Petitioner, v. R. C. TARTAR, Judge, Pulaski Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.

      Luke Burton, pro se.
   PALMORE, Judge.

The petitioner, Luke Burton, a prisoner in the Kentucky State Penitentiary, seeks an order from this court directing the judge of the Pulaski Circuit Court to rule on his RCr 11.42 motion to vacate the judgment pursuant to which he is imprisoned. The motion having been overruled, it is now unnecessary that the relief be granted.

Mandamus is denied.


text:
    Lillian E. CISSELL et al., Appellants, v. GRIMES INVESTMENTS, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    May 29, 1964.
    As Modified on Denial of Rehearing Nov. 13, 1964.
    S.J. Stallings, Louisville, for appellants.
    J. Donald Dinning, Elmo C. Burgess, Elmer R. Johnson, Louisville, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment refusing to grant the appellants injunctive relief and damages against the appellees. The crucial issue is whether the appellees unlawfully increased the flow of surface water across the land of the appellants.

The tract of land being developed as a subdivision by the appellees lies on the west side of Ormsby Lane. The land owned by appellant Andrew Conners is located on the east side of Ormsby Lane across from the appellees’ tract, and the land owned by appellant Lillian Cissell adjoins that of Conners. The natural drainage from the appellees’ tract is across the Conners land thence over the Cissell property into Big Goose Creek.

In developing the subdivision appellees caused a shallow artificial pond, formerly used as a hog wallow, to be eliminated. Since this increased the flow of the surface water into a culvert beneath Ormsby Lane, appellees applied for and obtained from the appropriate public regulatory bodies permission to replace the culvert with a larger one. After this improvement was completed at considerable expense and without objection from the appellants, the flow of water through it onto appellants’ land was substantially increased. Shortly thereafter appellants brought this action seeking damages and an injunction to compel appellees to rectify the conditions which increased the flow of water across their land and to permanently prohibit appellees from making future changes that would increase the flow of water from their land.

In refusing to grant the relief sought the Chancellor in a written opinion observed that appellants had encountered serious drainage problems with their land prior to appellees’ development of the subdivision and also that some of the surface water that collected on appellees’ land had drained onto the land of the appellants during the period that the pond was used as a hog wallow. Having reviewed the evidence, the Chancellor found that: Appellants have failed to prove the appellees have lost or abandoned the drainage easement across their land; the appellees did not change the natural drainage of their land but merely accelerated the flow onto the servient estate ; the proof concerning the possible malfunctioning of septic tanks on appellees’ property was speculative and not of such probative value to justify any relief, and the evidence did not establish any damages recoverable from the appellees.

On the instant appeal, it is contended that the Chancellor erred as a matter of law in refusing to grant the requested injunctive relief and in failing to award nominal damages since it was shown that some straw and mud had been deposited on their property by the water flowing off the ap-pellees’ land.

The rule governing cases of this character is stated in Jarvis v. Cornett, Ky., 257 S.W.2d 524, 525, thusly:

“The owner of the upper estate may drain and ditch his land for the purpose of carrying off surface water therefr'om into natural channels by building sewers, gutters and culverts thereon, without liability to the owner of the lower estate, even though such methods of ridding his property of surface water accelerate and increase the flow of the same onto the lower estate, so long as he does not tap water from additional watersheds or divert water from natural drains which otherwise would not have flowed onto the lower estate. As a necessary corollary the upper proprietor is not liable for any increase in the volume of water accumulating in a natural drain due to the erection of houses on his land.”

Under the facts as found by the Chancellor it is clear that appellees have not tapped water from another watershed nor diverted water from natural drains which otherwise would not have flowed onto the appellants’ land. Applying the above stated rule to these facts it necessarily follows the judgment was correct.

While the depositing of debris upon appellants’ property’may have been a technical trespass -which would have -entitled. the- appellant to recover nominal damages, 87 C.J.S. Trespass § 106; Zella Mining Co. v. Collins, 203 Ky. 178, 261 S.W. 1090, we have repeatedly said that on appeal we will refuse to reverse where plaintiff is entitled to no more than nominal damages. Linville v. Louisville & N. R. Co., 239 Ky. 143, 38 S.W.2d 926 (trespass); Bradshaw v. Steiden Stores, Inc., Ky., 265 S.W.2d 64 (false imprisonment); Hayes v. Hayes, Ky., 357 S.W.2d 863 (personal injury). The exception is where the reversal would affect or determine the title or rights in real property, 5 Am.Jur.2d, Appeal and Error, Sec. 790; 5B C.J.S., Appeal and Error § 1914; Clark v. Mason, 264 Ky. 683, 95 S.W.2d 292 (dictum).

The case of Fletcher v. Howard, 226 Ky. 258, 10 S.W.2d 325, involved a controversy respecting the location of a boundary line, and hence a question of title. To the extent that the opinion may be construed as authorizing a reversal for nominal damages arising out of a simple trespass, not involving title, it is overruled.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Emma MULLINS, Adm’x of Estate of David Mullins, Deceased, Appellant, v. William Thomas BULLENS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.

      Charles R. Coy, James S. Chenault, Richmond, for appellant.
    George T. Ross, Richmond, for appellees.
   DAVIS, Commissioner.

Just after midnight in June, 1961, David Mullins was killed when he was struck by an automobile, owned by appellee Bullens, driven by appellee Gatliff. Bullens was riding in his car at the time of the accident. Upon trial of this wrongful death action (KRS 411.130) a jury returned a verdict for appellant for $21,197, which included funeral expenses and damages for decedent’s automobile. Following entry of judgment upon the verdict, the trial court sustained ap-pellees’ timely motion for judgment n. o. v. The n. o. v. motion was coupled with an alternative motion for new trial. CR 50.03. The court granted the n. o. v. motion, and further ordered that in the event the court’s ruling for judgment n. o. v. should be reversed, then the appellees’ motion for new trial is sustained. Appellant challenges the rulings of the trial court on these grounds: (1) Decedent was not as a matter of law guilty of contributory negligence, (2) the doctrine of “last clear chance” requires submission of the case to a jury, (3) appel-lees’ negligence 'precludes -their reliance upon “sudden emergency doctrine,” (4) proof of appellee driver’s intoxication reflects such wanton conduct as to deprive appellees Of the defense of contributory negligence, (5) decedent did not as a matter of law assume the risk when making repairs to his disabled car, and (6) the conditional granting of a new trial was error.

About 11:45 p. m. on June 16, 1961, the decedent, accompanied by his brother and Frank Cope, left Richmond en route for their homes in Rockcastle County. All of them had had some beer to drink, although the quantity consumed is in dispute. When they had gone about four miles the hood on decedent’s car came up so as to obstruct the view of the driver. Thereupon decedent brought the car to a stop — parking it with its left wheels on the traveled portion of the highway in its travel lane. The parking and tail lights were burning (according to evidence for appellant). Decedent and the other occupants of his car alighted from it and removed the hood from the vehicle. For about fifteen minutes they were in the process of trying to place the hood into the trunk of the car when appellee Gatliff, driving the automobile of appellee Bullens, drove the car so as to strike decedent, fatally injuring him. The appellees were also coming from Richmond and headed in the same direction as decedent.

Appellee Gatliff said that he first saw decedent’s car when it was 125 to 150 feet in front of him. According to Gatliff, his headlights were working properly. The evidence for appellant reflects that the appel-lee’s car laid down skid marks of 97 feet before colliding with Mullins and his parked car. After the impact, appellee’s car crashed into a tree just off its left side of the highway; the tree is located about forty feet beyond the point of impact. The Mullins car was knocked about thirty feet forward as the result of the collision.

There was evidence that blood' samples taken from appellee Gatliff shortly after the accident indicated blood alcohol content of 0.13% by weight. Similar tests revealed 0.15% blood alcohol content for appellee Bullens. A test performed upon the corpse of Mullins, under circumstances challenged by appellant as failing to show that proper precautions were taken for accuracy, indicated a blood alcohol content of 0.21%.

Competent medical evidence disclosed at the trial that an individual of comparable size with those involved in the case will eliminate alcohol, in terms of blood weight, at the rate of 0.015% per hour. Using this factor, the witness deposed that appellee Gatliff’s blood weight alcohol content was 0.15% at the time of the accident. Evidence was adduced that the driving ability of all persons will be impaired when the blood alcohol content is as high as 0.15%. See KRS 189.520(4) as to effect of various percentages in criminal prosecutions.

The accident occurred in a designated 35 mph speed zone. It is noted that some evidence was heard that the zone was designated as having a speed limit of 50 mph; the court submitted to the jury the question whether it was 35 mph or 50 mph. The weather was clear; the road was a dry bituminous blacktop concrete pavement. A qualified engineer, particularly trained in the' matter of relating required stopping distances to the speed of automobiles, gave evidence relating to the required stopping distance for appellee’s car. According to that evidence, the car of appellee would have come to a dead stop just as it reached decedent’s car assuming a speed of 45 mph coupled with the skid mark of 97 feet. According to the same witness, under the prevailing conditions, if traveling at 35 mph, the car of appellee would have stopped after 57 feet of skidding — this, of course, would have left the car forty feet short of striking the decedent or his car. Appellee Gatliff testified that he was driving 46 mph when he first saw decedent’s car, which was then 125 to 150 feet ahead of him. Gatliff said that the headlights on’,the Bullens car were functioning properly, but it was not developed whether they were on high or low beam. Appellee Gatliff had 800 feet of unobstructed vision to decedent’s car after topping a grade in the highway. Conversely, decedent could have observed the approach of appellee’s car during the same distance.

We are of the view that the decedent was guilty of contributory negligence as a matter of law; hence, it was error to submit the question of his contributory negligence to the jury. We are mindful that KRS 189.450(1) (a) provides that a vehicle may be stopped or left standing on the main traveled portion of a highway when the vehicle “has been disabled while on the * . * * highway in such a manner and to such extent that it is impossible to avoid the occupation of the main traveled portion or impracticable to remove it from the highway until repairs have been made * * However, under the circumstances of this case we hold that the disabled condition of decedent’s car was not of such nature as to warrant its being left standing in the highway for the nearly fifteen minutes between its first stopping and the collision. The quoted language of KRS 189.450(1) (a) evinces the principle that the nature of the car’s disablement must be such as to make it “impossible” or “impracticable” to get the car off the road. We are not holding that it was a violation of the statute to stop the car momentarily on the highway when the hood flew up and obstructed the driver’s vision— but we do hold that the nature of the difficulty with the car was neither of the extent nor type warranting stopping on the highway for such an extended time. The emergency simply did not last that long. The evidence is uncontradicted that the car could have been driven off the traveled portion of the road with a bare minimum of care. Under these conditions, decedent was in violation of KRS 189.450(1) in permitting his car to partially block the highway. We conclude that decedent’s violation of the statute, under the circumstances here, was negligence per se. -The exception provided by KRS 189.450(1) (a) applied only so long as it was necessary for the Mullins car to be left standing on the pavement. The statute is intended to protect motorists (including appellee Gatliff) against the risk of the type of harm which occurred here. See treatment of effect of statutory violation as negligence in Ross v. Jones, Ky., 316 S.W.2d 8-15, and Prosser’s Law of Torts, 2nd Ed., p. 161, et seq.

Moreover, it was negligence for decedent to remain standing on the highway, in an obviously perilous place, under the conditions at bar. Carlisle v. Reeves, Ky., 294 S.W.2d 74. We believe it beyond cavil that decedent would be regarded contributo-rily negligent as a matter of law had he simply stood in the highway, where he did stand, had there been no automobile there. We cannot perceive that the presence of the illegally parked automobile diminished his negligence, even though there was evidence that the tail lights of the car were on.

It is our conclusion, however, that the appellant was entitled to the jury determination of whether recovery is due under the last clear chance doctrine. We need not embark upon renewed consideration of the last clear chance cases as to the effect of peril which is discovered vis-a-vis peril which should have been discovered. The facts before us show that appellee Gatliff discovered decedent’s car at least 125 to 150 feet ahead. There was no oncoming traffic confronting Gatliff. For the appellant it was shown that had Gatliff been driving at 45 mph (he testified he was traveling 46 mph) the vehicle would have come to' a stop after sliding 98 feet. At 35 mph, it would have stopped in 57 feet—40 feet short of decedent. There is no showing for appellees why Gatliff was unable to go around the decedent’s car. The subject is thus treated by Gatliff in evidence, on cross-examination:

“D64 How far did you see the Mullins car ahead of you for the first time?
“A A hundred and twenty-five ‘to fifty feet.
“D65 From 125 to 150 feet, and what did you do when you saw the car?
“A Throwed the brakes on as hard as I could.
“D66 Was anything coming from the opposite direction?
“A No.
“D67 Did you make any effort to turn your car to the left?
“A I made an effort.
“D68 And it wouldn’t turn ?
“A No.”

Clearly Gatliff is in no position to urge that antecedent negligent speed by him prevented his driving to his left to safely pass the decedent and his car—because Gatliff disclaims antecedent exorbitant speed. We believe the jury had a right to evaluate the conduct of Gatliff when he testified, “I made an effort” to turn to the left and the car would not turn. We deem Riley v. Horn-buckle, Ky., 366 S.W.2d 304, dispositive of the question of last clear chance here.

Appellant objected to a sudden emergency instruction given by the trial court. The argument is pressed here that the negligence of appellees precludes this defense. We hold that no sudden emergency instruction should have been given, nor should one be given upon another .trial of this case if the evidence is substantially the same. KRS 189.040(3) (a) required Gatliff to have head lights of sufficient intensity to reveal persons and vehicles at least 350 feet ahead (with certain exceptions not pertinent here). Accepting Gatliff’s testimony that he first saw the Mullins car 125 to 150 feet ahead, it amounts to admission that either his head lights were inadequate, or he was derelict in his lookout duty. Premising the test on Gatliff’s duty to see the ■decedent and his car 350 feet ahead, we believe that distance precludes any thought of ■sudden emergency. Since he failed to see until. 125 to'150 feet from the .decedent’s ■car, fór’this test, there was such faulty look■out for 200 to 225 feet to foreclose a claim ■of sudden emergéncy. One may not create •an emergency by his own negligence and then take defensive refuge therein. Ellis v. McCubbins, 312 Ky. 837, 229 S.W.2d 992.

Appellant argues that the negligence of Gatliff was so gross as to amount to wanton misconduct, thereby depriving appellees of the defense of contributory negligence. In support of this position, our attention is directed to Bickel v. Bennett, 267 Ky. 232, 101 S.W.2d 943, and Basham v. White, Ky., 298 S.W.2d 316.

We think one answer to this question lies in the fact that, upon the trial the issue of gross negligence as a basis for punitive damages was submitted to the jury —at the behest of the appellant. The jury resolved that issue adversely to appellant by returning its verdict for compensatory damages only. CR 59.01 authorizes the granting of a new trial “on all or part of the issues.”' There is no basis made evident wherein any purpose is to be served by a retrial of the gross negligence issue. Clearly there was sufficient conflict in evidence to make a jury issue of whether the negligence, if any, was ordinary or gross. Therefore, we limit a new trial herein to the issue of simple negligence. See Clay CR 59.01, ■Comment 4.

What has been said obviates necessity for discussion of assumption of risk and propriety of granting a conditional new trial.

We decline consideration of certain claimed errors in instructions as presented in brief for appellees. No cross-appeal has been filed; these claimed errors are not before us. for review. CR 74; Lainhart v. Rural Doxol Gas Co., Ky., 376 S.W.2d 681.

The judgment is reversed for proceedings consistent with the opinion.


author: MONTGOMERY, Judge.

text:
    Florence RAMSEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    J. Ervin Sanders, Sanders & Redwine, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Florence Ramsey was convicted of illegally possessing alcoholic beverages for sale (second offense). On appeal she argues that: (1) The indictment is defective; (2) the search and seizure were unlawful; and (3) an instruction is erroneous.

The appellee, with commendable candor, admits that the instruction given is erroneous and constitutes reversible error. The instruction embodying appellant’s defense required the jury to believe beyond a reasonable doubt the testimony to establish appellant’s defense. This type of instruction has been condemned. Biggs v. Commonwealth, 159 Ky. 836, 169 S.W. 525.

In the indictment it was charged “that on or about the 8th day of June, 1964, and twelve months before the finding of this indictment,” the offense was committed. Appellant urges that the omission of the word “within” before “twelve months” is a fatal defect. The twelve months allegation is unnecessary in view of RCr 6.10. The indictment otherwise is in conformity therewith and with Official Form 15, Criminal, also designated Form 159.01.

Appellant also contends that the information upon which the search warrant was issued had been obtained in an illegal manner. An Alcoholic Beverage Control Board agent had made a purchase of beer from appellant. Upon this information the search warrant was obtained and the search was made. Appellant says that this procedure was wrong because the agent, prior to making the purchase, had information that appellant had been engaged in the illegal liquor traffic and that he should have obtained a search warrant based on this information. There is some difficulty in following this argument, but there appears to be no merit in it in the light of the so-called “entrapment” cases upholding the right of an officer to make such purchases. See Cooke v. Commonwealth, 199 Ky. Ill, .250 S.W. 802; Helton v. Commonwealth,

Ky., 307 S.W.2d 209; United States v. Lile, 6 Cir., 290 F.2d 225.

It is necessary to reverse for the error in the instruction. The sufficiency of'the indictment and the search warrant have been discussed in the event of another trial.

Judgment reversed.


text:
    Mr. and Mrs. Landon WOOLSLEY, Appellants, v. BIG REEDY CREEK WATERSHED et al., Appellees.
    Court of Appeals of Kentucky.
    May 29, 1964.
    Rehearing Denied Nov. 13, 1964.

      J. Granville Clark, Russellville, for appellants.
    Bennett B. Bratcher, Morgantown, for appellees.
   CULLEN, Commissioner.

Landon Woolsley and wife, owners of land in the Big Reedy Creek Watershed Conservancy District, brought action against the district and its officers seeking to enjoin the defendants from collecting taxes, expending money, or carrying out a proposed watershed work plan. Judgment was entered dismissing the action on the ground that the complaint and amended complaint failed to state a claim on which relief could be granted. The Woolsleys have appealed.

The Woolsleys’ pleadings alleged in broad generalities that the collection and expenditure of taxes by the district in some unspecified way violated the constitutional rights of the plaintiffs and was in violation of the law; that the district was not established according to law; and that the proposed work plan was not feasible or legal. We think the action should have been dismissed because the pleadings did not give fair notice of the nature and basis of the alleged claim. See Clay, CR 8.01, Comment 3, page 129. However, the trial court treated the pleadings as permitting the assertion of specific grounds of illegality and unconstitutionality and, in a liberal mood, we shall do the same.

The Woolsleys’ first claim is that KRS 262.730, providing that “owners of lands” lying within the area of a proposed district are eligible to vote in a referendum on the question of creating a district, is capable of being construed so as to permit multiple owners of a small tract to' outvote a single owner of a large tract, with resulting denial of equal protection of the law and due process. They argue that even if not so construed the language is arbitrary and vague.

There is no suggestion by the Wool-sleys that there is or was any multiple ownership situation in connection with the Big Reedy Creelc Watershed. Constitutional questions are not to be dealt with abstractly and the courts will not consider constitutionality of a statute unless such consideration is necessary to the determination of a real and vital controversy between litigants. Stein v. Kentucky State Tax Commission, 266 Ky. 469, 99 S.W.2d 443. The Woolsleys are posing only a hypothetical question which is not a justiciable claim.

The second claim is that the referendum on the question of creating the district was held on a day other than the day of a regular election and that this violated Section 171 of the Kentucky Constitution. The latter section has reference only to state-wide referendums on acts passed by the legislature classifying property for tax purposes, and it has no application to the kind of referendum here involved.

The third claim is that the Wool-sleys’ land lies above the dam that the district proposes to build and will not be benefited by it, with the result that to tax the Woolsleys for construction and operation of the dam would amount to taking their property for private use. The statute, KRS 262.785, provides a procedure by which property may be detached from a district if it has not been, is not, and cannot be benefited by inclusion in the district. The Wool-sleys do not allege that they have sought that remedy. Furthermore, they do not show that their property will not be benefited through a general enhancement of values in the district, which benefit has been held to be a sufficient basis for imposing a share of the cost of a watershed improvement project. See Curtis v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 311 S.W.2d 378.

The fourth claim is that the proposed work plan of the district is “not feasible”. This falls far short o.f alleging such arbitrariness as to warrant redress to the courts. See Forrester v. Terry, Ky., 357 S.W.2d 308. However, regardless of that, the only assertion of lack of feasibility is that the plan will cost much more than can be financed through the tax of 50 cents per hundred dollars authorized by KRS 262.760. This argument overlooks the fact that under KRS 262.750 bonds may be issued, and the necessary tax levied to retire the bonds, upon a referendum. So the claim of lack of feasibility has no merit

In our opinion the action properly was dismissed.

The judgment is affirmed.

PALMORE, J., not sitting.


author: CJJLLEN, Commissioner.

text:
    Eva NORRINGTON, Appellant, v. CHARLES E. CANNELL COMPANY et al., Appellees. Wm. Loraine MIX, Administrator, Estate of Joe Norrington, Deceased, Appellant, v. CHARLES E. CANNELL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 19, 1964.
    Rehearing Denied Nov. 13, 1964.

      Herman E. Frick, Theodore Wurmser, Louisville, for William L. Mix.
    Chester L. Rigsby, Louisville, for Eva Norrington.
    James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellee.
   CJJLLEN, Commissioner.

Joe Norrington, an employe of Charles E. Cannell. Company, died as the result of ah accident in the course of his employment. Eva Norrington, claiming to be a dependent of Joe’s, filed a claim for workmen’s compensation benefits. The Workmen’s Compensation Board denied her claim and she appealed to the circuit court. Contemporaneously, the administrator of Joe’s estate brought a common law action against the employer in the same circuit court to recover damages for wrongful death. The two proceedings were consolidated. Judgments were entered affirming the order of the board in the workmen’s compensation case and dismissing the claim of the administrator in the common law case. Both claimants have appealed to this court.

Eva had lived with Joe for 17 years but without marriage ceremony and without having obtained a divorce from her legal husband. Her claim for workmen’s compensation benefits was denied under authority of Jones v. Campbell Company, Ky., 353 S.W.2d 208. She claims that the Jones case is distinguishable because there the couple had lived together illicitly for only 10 months. We do not see why the length of the period of illicit cohabitation should affect the policy consideration on which the rule in the Jones case was based. She further contends that the Jones case is wrong in principle and should be overruled. This contention fails of acceptance by a majority of the court.

In our opinion the circuit court properly upheld the order of the board denying the workmen’s compensation claim.

The action by the administrator was dismissed on the ground that since Joe and the employer both had accepted the Workmen’s Compensation Act, the employer was released from common law liability, KRS 342.015. The administrator contends that since the employer has not paid Joe’s funeral expenses, as required by KRS 342.070, the employer has elected not to be bound by the Workmen’s Compensation Act and therefore is not relieved of. common law li-

ability. This contention is completely without merit. The election that determines liability is a pre-accident election. Furthermore, the mere failure of the employer to pay the funeral expenses does not mean that he will not pay them upon proper demand.

The administrator further contends that the Workmen’s Compensation Act is unconstitutional if it is so construed as to bar a common law recovery for wrongful death in a situation where there can be no recovery under the Act because there are no dependents. This contention is sufficiently answered by the decisions in Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648, Wells v. Jefferson County, Ky., 255 S.W.2d 462, and Davis v. Solomon, Ky., 276 S.W.2d 674.

It is our opinion that the circuit court properly dismissed the administrator’s claim.

The judgments are affirmed.


text:
    Roy CURRENT et al., Appellants, v. COLUMBIA GAS OF KENTUCKY, INC., Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Rehearing Denied Nov. 13, 1964.

      Miller, Griffin & Marks, Lexington, for appellants.
    White & McCann, Winchester, H. Raymond Andrews, Jr., Charleston, W. Va., for appellee.
   DAVIS, Commissioner.

The appellants sued appellee in the Clark Circuit Court seeking damages for personal injuries allegedly induced by carbon monoxide gas. The damage claims are predicated on the averred negligence of appellee in cutting gas into improperly vented appliances used by appellants. A jury- was unable to agree upon a verdict, and was discharged. Thereupon the trial court sustained appel-lee’s motion for judgment as if its prior motion for directed verdict had been sustained. CR 50.02.

• Appellants present several grounds upon which reversal is urged, which may be summarized as: (1) There was sufficient evidence to warrant submission of the issues to the jury; (2) errors were committed in refusing evidence offered by appellants and in admitting evidence in behalf of appellee; and (3) improper instructions were given and proper instructions were refused.

The appellants are James and Elsie Mae Current, husband and wife, and their five minor children. The entire Current family moved into a rented- residence in Winchester on October 28, 1960. The home contained a living room, kitchen, dining room, two bedrooms, a bath and a basement. The first floor living area of the residence contains 6,736 cubic feet; the basement area has 7,730 cubic feet. Since the house had been vacant, the gas had been cut off. Ap-pellee inspected the premises and cut the gas on.

Three gas appliances were used in the Current home. There was a 65,000 BTU space heater, located in front of a fireplace in-the living room, a double oven stove, having four burners on top, located in the kitchen, and a water heater in the basement, identified in the record as a “side arm” type. There was no vent on the kitchen stove, but all parties concede that it is usual practice for such an appliance to be utilized without venting. The side arm water heater was vented by a pipe run from the basement, up an outside wall of the house; this vent had its outlet below the roof line of the Tiouse, near a rear bedroom window. There is sharp dispute in the evidence whether the space heater in the living room was vented.

An employee of appellee cut the gas into the house and lit the pilot light on the space heater. He testified that at the time he cut the gas into the house the space heater was vented. He acknowledged that his instructions from his employer as well as his experience caused his knowledge that it is unsafe to bum gas in an appliance of 65,000 BTU capacity unless the appliance is properly vented. The same witness, said that his inspection of the space heater, when he cut in the gas, revealed to him that it was burning normally and was not dirty.

It was also shown by the witness that he inspected the side arm heater, and observed that a vent pipe led from it through an outside wall. He did not inspect that vent pipe to determine its ultimate point of outlet, but testified that his company’s requirement, and good practice, directed that the outlet on such a vent should be at least two feet above the roof line of the house.

The residence in which appellants resided was of concrete block construction, and was porous. On the night of February 2 and in the early morning hours of February 3, 1961, the weather warmed somewhat and a freezing rain and sleet occurred. Appellants reason that these circumstances may have somewhat sealed the otherwise porous walls.

About midnight on February 2 the appellants became ill; they called a doctor. When he arrived at about 1:00 a. m. some of the family were ill and vomiting. The physician concluded they were suffering a mild gastric upset. Although he noted the house seemed abnormally warm, especially when he was standing, he did not detect any gas odor. It is shown, without contradiction, that carbon monoxide is colorless and odorless.

A fellow employee of James Current became apprehensive when the latter did not report for work at the normal time. The coworker went to the Current home, but received no response to her knocks upon the door. Moans were heard from within the house, but there was no answer to the repeated calls of the witness. Upon entering the house this witness found Mrs. Current, on the floor in.the living room; some of the children were on the two couches in the living room — James Current was “half on the bed” in one of the back bedrooms. All were unconscious. Efforts to. arouse the parents failed, The witness obtained aid from the police department and,the emergency squad of the fire department.

The assistant, fire chief ¡recounted, that all of the appellants -appeared- unconscious when he arrived. Some of them-even seeiti-.ed to be not breathing; he super vised, ad-•mihistration of. oxygen, and resuscitation to the victims who showed no- sign'.of .breathing. He remembered that an appearance-of soot, or some settlement, was observed ■around the mouths and nostrils -of at least three of them! He did not observe Mrs. 'Current’s condition in’this respect: '

There is substantive evidence from competent doctors that the appellants sustained injury from carbon monoxide poisoning. The record reflects substantial injuries to some of the appellants, but that matter is not now involved.

For appellants, several witnesses testified that the space heater was not vented when it was put in operation on October 28th, and that it was never vented prior to the claimed carbon monoxide poisoning of the appellants. There is no question that a submittable jury issue was created as to whether it was vented; the question is whether the evidence warranted submission to the jury, even if the space heater was not vented.

■ Appellee presented. Professor Warren A. Cook, who qualified as a skilled expert as -to the effects of gases in the air upon humans. The witness conducted tests of the space heater (although appellants challenged the integrity of the heater when tested). Professor Cook testified that if the space heater had been vented, it was his judgment that it would not have been the origin of sufficient carbon monoxide to visibly adversely affect humans. He said th.at when he tested the space heater, after it had been removed to Pittsburgh, Pennsylvania, it burned with a blue flame. The witness said such flame is normal when the appliance is operating properly. He pointed out that if the appliance became clogged with lint or other foreign material, the flame would tend to become yellow and that the burner would smoke. Under those conditions, if the heater was vented, it was his opinion that the carbon monoxide would be carried off through the vent sufficiently to forestall injury. However, he testified that if the heater’s flame smoked extensively and the heater was unvented, enough carbon monoxide would be introduced into the house to cause human injury and unconsciousness.

Moreover, the same expert pointed out that an unvented heater would have greater tendency to become clogged than one properly vented. He also observed that the clogging process normally would be a relatively progressive one, culminating in a greatly increased degree of clogging at a “particular time.” The “particular time” to which he referred was described as being when accumulated deposits of material dropped down to further clog passageways.

The evidence showed that appellants had soot on their hands and faces when they were admitted to the hospital; at least three of them had quantities of soot about their mouths and nostrils. In response to questioning by appellee’s counsel whether the instant space heater could have produced that result, Professor Cook-gave this significant answer:

- “If we contemplate a good adjustment meaning the whole operation was satisfactory, we would not think that soot would be produced, but if any of the several elements might have been present which would -cause smoking of the stove, and I believe I have enumerated these as closing off the air supply or increasing building up of soot in the passages, then smoke, sooty smoke would come out of the stove and would enter the living areas and would be expected to cause that condition.”

It is basic that a plaintiff is entitled to the most favorable inferences and construction attributable to the evidence, upon consideration of a motion for directed verdict against him; if such evidence, so regarded, substantially tends to support the cause of action, the verdict should not be directed against him. Johnson v. Vaughn, Ky., 370 S.W.2d 591; 18

Ky.Digest, Trials, In our view, the evidence we have discussed amply warrants a factual issue whether the alleged injuries of the appellants were proximately caused by negligence of appellee in cutting gas into an improperly vented space heater. Therefore, it was error to grant judgment' as if the motion for directed verdict had been sustained.

Since there may be. another trial of the case, we discuss other pertinent points:

Appellants sought to introduce in evidence the rules of appellee relating to. standards of care as to inspection and venting of gas appliances. There is an apparent conflict in previous decisions of this-court on the point at issue. In 50 A.L.R.2d 16, et seq., it is said that the weight of authority supports the doctrine of admissibility of such rules, subject to certain conditions and limitations set out in the work cited.

Two decisions of this court are there cited as supporting the majority rule of admissibility: Southern R. Co. v. Adkins’ Adm’r, 133 Ky. 219, 117 S.W. 321, 119 S. W. 820, and Louisville & N. R. Co. v. Gregory, 279 Ky. 295, 130 S.W.2d 745.

In the same annotation five Kentucky cases are cited as opposed to the admissibility rule: Louisville R. Co. v. Gaugh, 133 Ky. 467, 118 S.W. 276; Southern R. Co. v. Stewart, 141 Ky. 270, 132 S.W. 435; Louisville & N. R. Co. v. Dyer, 152 Ky. 264, 153 S.W. 194, 48 L.R.A.,N.S., 816; Louisville & N. R. Co. v. Vaughan’s Admr. 183 Ky. 829, 210 S.W. 938, and Louisville & N. R. Co. v. Stidham’s Adm’x, 187 Ky. 139, 218 S.W. 460.

Cogent reasons may be advanced for either position. Against admissibility it is said that a tendency would exist whereby companies would forego safety rules, thus subjecting all to increased hazards; in some instances a higher standard would be imposed by the regulations than by law; that if a lesser standard is imposed by regulation than by law, an improper result might ensue. Doubtless other arguments are advanced.

On the other hand, it is suggested that a jury has no standard whereby to measure the conduct of a highly specialized business. It may be questioned that a jury of laymen can intelligibly gauge the degree of care usually exercised by an ordinarily prudent man when that mythical actor is engaged in conduct utterly beyond the ken of the juror. For example, which of us could know what an ordinarily prudent astronaut would do in a space flight—or how should we evaluate the conduct of an ordinarily prudent man on the moon? It is our conclusion such rules should be admitted in cases posing the standard of care required in activities not within the general realm of common experience.

In the instant case it is shown that the rules were effective before and at the pertinent periods in the case; the rules were known to the appellee’s employees, and, in substance, the employees testified that the same conduct prescribed by the rules constitutes safe practice. There is no showing that any requirement- of the rules exceeds the standard of ordinary care under similar circumstances. Clearly the rules related to the situation at bar, and were evolved for safety purposes. Under these circumstances we decide the instant rules should have been admitted. To the extent, and only to the extent, that the contra Kentucky cases are inconsistent with this rule, they are overruled.

Appellants complain of admission of the results of experiments with the space heater and hot water heater. It is said that neither of the appliances was shown to be in the same condition when tested as when the alleged injuries occurred. We have examined the evidence and conclude that the matter of the relative conditions of the appliances at the time of test and time of accident was made plain to the jury. It was not claimed for the tests that they showed the operating efficiency of the appliances as they were at the time of the accident. Rather, it was shown what results were found under various conditions. As we have shown, it was the operation of the space heater under one condition which, in our minds, entitled appellants to go to the jury.

Appellants’ charge of error as to the rejection of certain rebuttal testimony of Dr. Sam Hite appears to be without merit. This is so because a reading of the transcript fails to reflect that any material portion of Dr. Hite’s evidence was excluded. Under the circumstances all of Dr. Hite’s evidence was proper rebuttal, as it sought to attack the verity of Professor Cook’s evidence.

Appellants were permitted to prove that Professor Cook was being compensated by appellee incident to his expert testimony. They urge that they should have been permitted to show the precise rate of compensation. We do not agree. It is true, as conceded by the parties, that it is proper to show that the witness is being compensated. However, we feel that, in the -absence of unusual circumstances, the better rule is to limit the showing to the fact that payment is being made. To permit details of the compensation injects collateral matter into the trial. It is generally recognized that inquiries of this type rest largely within the discretion of the trial court, and absent a showing of abuse of discretion, the limitation of such questioning will not constitute reversible error. Here there is no showing that the compensation was in any way conditioned upon the outcome of the litigation. There was no abuse of discretion. Parsley v. Com., Ky., 306 S.W.2d 284; 33 A.L.R.2d 1171; 58 Am.Jur., Witnesses, § 844.

Appellants complain that the instructions given placed undue emphasis on one phase of the defense, and created an ambiguity. Related to this ground urged for reversal is appellants’ contention that an instruction offered for them should have been given, but was refused. There was evidence that the condition of the venting of the water heater could have been a contributing factor to the danger of injury from the space heater, if unvented; language should have been included in the instruction so indicating. Upon another trial, the following instruction will be given, if the evidence is substantially the same:

If you believe from the evidence that at the time the representatives of the defendant, Columbia Gas Company, cut gas into the house and appli- - anees at the residence of the plaintiffs, ■the gas heater in the living room was unvented, and such condition was known to the defendant’s representatives, or should, in the exercise of ordinary care have been known to them, and if ydu further believe the ■failure to vent the hot water heater at ; l'east two feet above the roof line of the residence created a dangerous condition, of which the defendant’s representatives knew, or should have known in the exercise' of ordinary care, and ,ifiyoh further-believe, that'as the direct and-proximate result of the said condition of the gas heater in the living-room, solely, or in combination with the condition of the hot water heater the plaintiffs were injured and damaged, then the law is for the plaintiffs, and you will so find; but unless you so believe, or unless you find under other instructions, the law is for the defendant and you will so find.

The court gave as instruction 2 the following :

“If you believe from the evidence that defendant caused a condition to exist which was not dangerous but, which merely made it possible for the injuries to occur to plaintiffs, through some independent or unrelated cause, then you should find for defendant.”

It is argued that the giving of the latter instruction overemphasizes the defense and creates ambiguity. We agree. It is our opinion that the first instruction, when read in light of the usual proximate cause instruction, which was properly submitted, fairly presents the issues, so that the giving of instruction 2, just quoted, is not necessary. Upon another trial, it will be omitted.

Finally, it is contended that it was error to instruct that appellee’s duty was to exercise ordinary care. It is urged that the handler of gas should be charged with the “highest degree of care.” In support of this proposition appellants cite Darlington v. Owen County Rural Electric C. C., Ky., 299 S.W.2d 599, and Vaught’s Adm’x v. Kentucky Utilities Co., Ky., 296 S.W.2d 459. These cases deal with purveyors of electricity. Also cited is Rowan v. Western Ky. Gas Co., 82 F.Supp. 591 (D.C.Ky.) in which Judge Swinford commented in part: “The ‘ordinary care’ required is not the care of an ordinary person for the average person knows nothing of how to handle gas. Ordinary care in this instance means ordinary care by people learned in the handling .gas.”

The trial court defined “ordinary care” as applied to appellee as meaning that degree of care that an ordinarily prudent gas company, learned in the handling of gas, would exercise under like or similar circumstances. We feel that this instruction, considered in light of the rules and regulations of the company, and along with other evidence of the prevailing safety practices in the trade, amply submits the issue,

The judgment is reversed for proceedings consistent with the opinion.


author: HUNTER, Judge.

text:
    Janet S. KELLEY, Appellant, v. SOHIO CHEMICAL COMPANY, Respondent.
    No. 23992.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.
    Rope, Shanberg & Rope, Herbert M. Rope, Sherman L. Gibson, Kansas City, for appellant.
    Edgar S. Carroll, Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.
   HUNTER, Judge.

Employee-appellant Janet W. Kelley sought Workmen’s Compensation benefits from her employer, Sohio Chemical Company, for injuries she suffered at her place of employment during working hours when she was the victim of an unexplained assault by an unknown person. The referee, the Industrial Commission and the circuit court have denied her relief, hence this appeal.

The salient facts are undisputed. Miss Kelley, single and twenty-one years’ old, was employed as a stenographer by Sohio Chemical Company and performed general office work in its three-employee office located on the 24th floor of the Kansas City Power & Light Building in downtown Kansas City. On January 22, 1962, at 11:45 a.m. she went out to lunch, and returned at 12:30 p.m. All the other offices on the floor were empty and closed at noon as their employees were at lunch. Miss Kelley’s office was the only one that always had someone present.

Upon Miss Kelley’s return from lunch Mr. Terrell, a fellow employee, left for lunch leaving Miss Kelley alone. The third employee, Mr. Goodnight, was out of town that day. Miss Kelley went to the stock room for something and heard the bell on the elevator ring. The stock room is an inner room which can be entered only through the office. She describes what next occurred: “We have an automatic elevator and when it stops on our floor the bell rings, and I heard somebody walk into the office and walk up behind me and when I didn’t hear anybody say anything I started to turn around and then all I remember was somebody hitting me and that was all until I regained consciousness.”

When Mr. Terrell returned from lunch at 1:10 p.m. he found Miss Kelley stretched out on the floor, face down and unconscious. She had a lump on the back of her head from something having struck it hard. There were black and blue marks on her right arm which could have been caused by finger prints. There were no heavy objects lying near her. Nothing in the office had been disturbed, tampered with or taken. Mr. Terrell summoned others, and Miss Kelley was taken to the hospital where she remained for a number of days. In view of the disposition of the coverage question which we believe to be required by the above facts, we refrain from any further mention of her injuries.

There was evidence to the effect that the Power & Light Building in question is the usual type of well-kept, downtown office building. It is a well managed building with a man in the lobby supervising the operation of the elevators. No one had noticed any strangers loitering around or in the building.

On review of questions of fact decided by the Industrial Commission, our inquiry, as that of the circuit court, is limited to whether or not the findings of the Commission are supported by competent and substantial evidence upon the whole record. This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could reasonably have made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.

Additionally, decisions of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the reviewing court and fall within the court’s province of review and correction. Vaseleou v. St. Louis Realty & Securities Co., 344 Mo. 1121, 130 S.W.2d 538, Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61.

Our Workmen’s Compensation Law requires an accident to be one “arising out of and in the course of” the employment in order to be compensable. Section 287.120 RSMo.1959, V.A.M.S. These are separate tests and each must be satisfied. Every case must be determined upon its own facts. It is tacitly conceded in the present case that the instant injury arose “in the course of” the employment. But did it arise “out of” the employment? The Industrial Commission ruled it did not.

According to some of the text writers, wilful assaults are divided into three categories ; namely, (1) those having some inherent connection with the employment, (2) those that are inherently private, and (3) those that are neither, i. e. are “neutral”. The latter classification includes completely unexplained assaults. And, according to Larson, Workmen’s Compensation, section 11.31, page 146, “The majority of jurisdictions are inclined to regard the neutral category as noncompensable, for want of affirmative proof of distinctive employment risk as the cause of harm * * To the same effect, see 58 Am. Jur., Workmen’s Compensation, section 265, p. 765; 99 C.J.S. Workmen’s Compensation § 227, page 765.

Our supreme court has definitely placed this state in the majority grouping. In Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, deceased was assaulted (shot several times) while in the company tool room, of which he was in charge, during the lunch hour. Before he died deceased refused to relate the circumstances of the shooting and. the identity of the person who shot him. Other evidence indicated the possibility that it .was a fellow employee.. It was . clear that 'the shooting had no connection with deceased’s work or duties, that the assail.ant was not trying to steal anything and that deceased was not trying to protect -the property... There was no evidence of a isfniggle, the man just went “beserk”, walked up.and shot him and deceased had had no trouble, or argument with him and.no business with him on the job. On these facts the supreme court ruled that although the'ffnjury arose in the course of the employment it' did riot arise out of the employment saying, loc. cit. 880, “An injury arises' 'out of’ the employment when there is a direct causal connection between the injury and the employment; and, even though the precise injury need not have been anticipated, it must have been a rational consequence of some hazard connected with the employment.”

In Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, approvingly quoted in the Toole case, supra, 291 S.W.2d loc.cit. 881, the claimant was shot while performing regular work, by another employee who was firing at a third employee in a dispute over a nickel found on the floor. It was held that this injury did not arise “out of” the employment. The court there said, “ * * where the employee is assaulted or shot, not because he is an employee or because of his employment, but for reasons entirely personal and wholly disconnected from his employment, the injury in that event does not arise out of the employment so as to justify the making of an award of compensation. * * * It is true that the employment was responsible for the fact that all three women were together on the premises and subject to the employer’s general right of control, but this circumstance is insufficient to show anything more than that the injury was received in the course of the employment.”

■ Also cited with approval in the Toole case is Lardge v. Concrete Products Mfg. Co., Mo., 251 S.W.2d 49, where the Supreme Court held that an injury and death resulting from án assault by a fellow employee upon the deceased while he was working, .did not arise “out of” the'employment when the cause of the assault was a personal .quarrel, and that the assault must be directly related to the. work to 'permit an award of compensation.

In Scherr v. Siding & Roofing Sales Company, Mo.App., 305 S.W.2d 62, a floor covering salesman was struck in the head by a disk from a nearby game table as he was discussing a potential sale with the tavern owner. Declaring that there must be a causal connection before it can be said that an accident arises out of the employment and that the employment must in some way be responsible for the injury, and after noting that the employment did not expose the employee to an unusual risk or injury from such agency which is not shared by the general public, the St. Louis Court of Appeals, stated, loc. cit. 65, “We are committed to the rule that before an injury can be said to arise out of the employment ‘it must have been a rational consequence of some hazard connected with the employment’. * * * If the employee relies upon the theory that the accident occurred by reason of his exposure to an unusual risk there must be proof that the risk was unusual.”

In Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, an employee (plumber) while walking through a hallway of an apartment building where he was working was assaulted by an unknown person for apparently no reason. In denying recovery for lack of a causal connection between the injury and the employment the St. Louis Court of Appeals declared, loc. cit. 489, “In the case at bar respondent was assaulted by an unknown person for apparently no reason whatsoever. The assailant was not •connected with the employer’s business in any way, nor was he under the employer’s control. He may have been an escaped maniac, or he may have mistaken respondent for someone against whom he had a grudge. In either event, no recovery could be had, because it is not shown that an employee working in an apartment house is subject to a greater- risk of injury from such persons than are the public generally. There is no causál-éfe'nneotion whatever between the injury iil^the case at bar and the employment. In our opinion, there is not sufficient competent evidence in this record to warrant the finding that respond•ent’s accident ' arose out of his employment.”

In Gregory v. Lewis Sales Company, Mo.App., 348 S.W.2d 743 in speaking of assault cases, the Springfield Court of Appeals noted, loc. cit. 746: “And, in a wide variety of factual situations, our courts have reminded that “it is necessary to bear in mind the fundamental difference between those causative agencies which are part and parcel of the master’s business and under his control, and those which lie outside that business and beyond his control. In the former class of cases, it is quite reasonable to hold the master liable, no matter how unusual or unpreventable the accident may be. But, in the latter class of cases it seems unjust to hold the employer liable, unless the employment in some way exposes the employee to an unusual risk or injury from .such agency which is not shared by the gen-■cral public." ’ ”

In the instant case the evidence before the Industrial Commission supports a finding of an assault unconnected with the employment, and, thus, one which did not arise “out of” the employment as required by the statute in order for it to have been compensable. Section 287.120 RSMo 1959, V.A.M.S. Certainly the commission on this evidence was entitled to conclude that appellant had failed to persuade that her work exposed her to extra hazards above and beyond those of the public generally. See, Williams v. Great Atlantic and Pacific Tea Co., Mo.App., 332 S.W.2d 296 (5).

Thus, upon our review of the record, we have concluded that the award of the Industrial Commission was supported by competent and substantial testimony and was not contrary to the overwhelming weight of the evidence. .

The judgment of the circuit court.affirming the award of the Industrial Commission is affirmed.

All concur.


author: MAUGfJMER, Commissioner.

text:
    The J. R. WATKINS COMPANY, a Corporation, Appellant, v. Lola Velma LOVE, Respondent.
    No. 23971.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.

      Leonard Rose, Kansas City, for appellant.
    Clif Langsdale, Kansas City, for respondent.
   MAUGfJMER, Commissioner.

This is an action against a surety to recover for merchandise sold to the sureties’ principal and not paid for by him. A jury was waived. The court found generally for the defendant and plaintiff has appealed.

As to the scope of appellate review in cases tried upon the facts without a jury, Section 510.310(4) V.A.M.S. provides in part:

“The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”.

fo the same effect are the provisions of Supreme Court Rule 73.01(d), V.A.M.R. See also McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 703. It is further our duty after review, to render or direct the rendition of such.judgment as should have been entered. Maas v. Dreckshage, Mo.App., 244 S.W.2d 397. The rule requiring us to give deference to the findings of the chancellor where credibility of witnesses is involved is of slight importance here, since there is little dispute, if any, as to the facts. The vital disagreement in this case as we shall soon see, poses a question of law rather than of fact.

Plaintiff, The J. R. Watkins Company, is a corporation engaged in the manufacture of goods and merchandise, primarily for home consumption, which are sold almost entirely by individual door-to-door salesmen or dealers.

By the terms of a written agreement dated October 17, 1955, which recites: “Made at Winona, Minnesota”, Mr. Thomas Richard Place of Route 1, Lees Summit, Missouri, as “Purchaser” agreed to buy and the defendant company agreed to sell to him at wholesale prices some of its products. The agreement provided that the “Purchaser” pay for the goods by remitting 60 percent of his receipts from sales. This agreement was to continue in effect until December 1, 1957, but either party could terminate earlier by simply giving written notice to the other party.

On the lower half of this agreement, which consists of only one page, there appears a printed paragraph followed by the phrase in capital letters “SURETIES SIGN HERE WITH INK”. This particular paragraph or guaranty provided that in consideration of the company’s agreement to sell its products to Mr. Place, the sureties “waive * * * notice of default or of nonpayment, and waive action required, upon notice, by any statute, against the Purchaser; and vac jointly, severally and unconditionally promise, agree and guarantee to pay for said goods and other articles * * * at the time and place, and in the manner in said agreement provided * * ”. (Italics ours.) The defendant Lola Velma Love, sister of Mr. Place admittedly signed this document as surety. It was also signed by one George R. Jenkins, who is not involved in this litigation.

On November 11, 1955, the company mailed to defendant by registered mail the following notice: “We are pleased to advise that we have received and accepted the Agreement of Mr. Thomas Richard Place dated October 17, 1955,- and expiring by limitation on December 1, 1957, which is signed by the following as sureties, including yourself: Dr. George R. Jenkins and Mrs. Lola Velma Love. Yours very truly, THE J. R. WATKINS COMPANY Contract Department”. A return receipt signed by defendant on November 16, 1955 for this letter was received in evidence and Mrs. Love admitted at the trial that she had received this notification and had signed for it.

It was conceded that the principal, Mr. Place, died on March 15, 1958. The company produced documentary proof from its records that at the time the contract expired .and at the time of Mr. Place’s death, he owed a balance of $1387.50. By letter dated April 16, 1958, Mrs. Love was notified as to the amount of this balance due and demand was made of her for payment. However, some Watkins products which Place had on hand when he died were delivered to another dealer and Place’s account was credited with $230.60, or the value thereof. His indebtedness was reduced further by a $25.00 cash payment and a credit described in the testimony as a “Bird Dog Award” — apparently a reward for recruiting a new dealer. At an earlier trial plaintiff also voluntarily remitted or allowed a further credit of $18.03. Altogether this left a balance due of $1,062.02. At the trial it was conceded or at least not disputed that this amount of indebtedness was true and correct. During the trial the following colloquy took place between the trial judge and counsel:

“THE COURT: Is there really any factual dispute?
“MR. LANGSDALE: Well, I am not going to say ‘no’ to that, because if some fact is produced-
“THE COURT: All right.
“MR. LANGSDALE: But I say that we haven’t objected to these matters.
* * * ’
“THE- COURT: Mr. Langsdale, is there any real contention here except your legal defense?
“MR. LANGSDALE: No”.

Finally, after some additional correspondence and failure to collect from Mrs. Love, the company on June 9, 19S9, filed suit. The defendant, by her answer, denied generally and alleged that defendant “has never read or heard read or understood” Exhibit 1 — the Surety Agreement. At the trial and on this appeal defendant has not denied the correctness of plaintiff’s accounting as to the amount due nor has she relied upon fraud ' or misrepresentation. Rather her defense, both here and below (which is the “legal defense” referred to in the quoted colloquy between the court and counsel) is that defendant is not liable as a matter of law because: (1) The agreement, including the surety part which defendant signed, is a Minnesota contract and not a Missouri contract; (2) being a Minnesota contract, Section 335.77, Minnesota Statutes 1957, Annotated, is applicable and became a part of the contract. We set out the wording of this statute: “The person primarily liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same. All other parties are secondarily liable”; (3) although plaintiff by letter demanded payment of the balance due from the estate of. Mr. Place, the deceased principal, it did not file a formal claim against his estate or sue his legal representative, but allowed.the Statute of Limitations to operate to destroy such a possible claim. Defendant contends the legal result is that plaintiff thereby lost its right to collect from defendant whom the statute (says defendant) describes as only secondarily liable.

There was an earlier jury trial of this controversy. Counsel for each party in their briefs and oral argument have .referred quite frequently to this first trial and defendant has filed’ a motion asserting, in effect, that the first trial finally adjudicated this dispute. That trial resulted in a* verdict for plaintiff in the sum of $1,062.02. Defendant’s motion for new trial was sustained for the stated reason that the court instructed that Missouri law applied and refused to instruct that Minnesota law applied. Regardless of the propriety of granting a new trial or the soundness of the stated reasons therefor, there was no appeal and the order became final. The contestant’s position was then exactly what it had been before that trial. No issue had been finally adjudicated. In due time the second trial was had before the court with a jury waived. We are in no way concerned with the first trial and nothing that there transpired is before us.

Apparently the trial judge in the jury trial and the trial judge in the jury waived case concluded that the agreement sued upon was a Minnesota contract and that the statute which we have set forth, coupled with plaintiff’s failure to sue either Mr. Place during his lifetime or his estate after his death, created a complete defense for this defendant who (defendant says) is only secondarily liable. We can see no other theory upon which the court’s findings for defendant could have been based. The amount of Place’s indebtedness was undisputed. The fact that defendant signed the surety agreement, received formal notification of its acceptance with her as surety, was admitted and counsel unequivocally conceded, responsive to the court’s inquiry, that defendant was relying solely upon this “legal defense”.

We shall not disagree with all of the trial court's legal conclusions but we cannot concur in the ultimate conclusion and result. Is this particular agreement a Missouri or a Minnesota contract? The instrument itself recites “Made in Winona, Minnesota”. It was in Minnesota that the contract was finally completed by the signature of The Watkins Company. We think it is a Minnesota contract although as to performance under it, probably the law ’of Missouri (place of performance) would apply. Liebing v. Mutual Life Ins. Co. of New York, Mo. In Banc., 276 Mo. 118, 207 S.W. 230, 232; Brookville Electric Co. v. Utilities Ins. Co., Mo.App., 142 S.W.2d 803, 809. Howevei', we shall not go into that question fully for the reason that so far as a decision here is concerned, we can assume and agree with defendant’s contention that this is a Minnesota contract and Minnesota law applies in all respects. But we cannot agree with defendant’s position that Section 335.77, Minnesota Statutes, Annotated, supra, applies and since plaintiff has made no real and reasonable effort to collect from the principal, defendant is relieved of liability. We believe this position is untenable in this case for two controlling reasons: First, in our opinion the statute does not apply and, second, defendant, by the terms of the signed surety agreement, became “jointly, severally and unconditionally” liable.

First: The statute does not apply for the reason that Section 335.77, Minnesota Statutes, Annotated, supra, is a part of the Uniform Negotiable Instrument Act and is included in the chapter on that subject. Section 401.192, V.A.M.S. of the Missouri Statutes on Negotiable Instruments is absolutely identical to Section 335.77 of the Minnesota laws. These statutes and all those in the chapter on Negotiable Instruments have to do with and are applicable only to negotiable instruments. The Surety Agreement here is not a negotiable instrument. It does not come within the definition of such an instrument as set out at the beginning of both the Minnesota and Missouri chapters. It does not contain “an unconditional promise to pay a sum certain” in money and is not negotiable. Even if the document sued on were a negotiable instrument and the statutes were therefore applicable, it would appear to make little difference if the Missouri or the Minnesota statutes were applied. Second: By the specific written terms of the surety or guaranty agreement which defendant signed, she agreed to “waive * * * notice of default or of nonpayment, * * * and we jointly, severally and unconditionally promise, agree and guarantee to pay for said goods and other articles * * * at the time and place, and in the manner in said agreement provided”. This phraseology makes defendant liable not only jointly with the principal and other surety, but individually (severally) separate and apart from the others. She assumed this obligation and is bound by the terms of the written agreement.

In our opinion Section 335.77 of. the Minnesota Statutes, supra, and .Section 401.192 of the Missouri Statutes upon which defendant’s only urged defense is predicated, apply only to negotiable instruments, and since the document sued on is not a negotiable instrument, are not applicable or available as a defense. It is our opinion further that the plain provisions and terms of the agreement or contract which . defendant signed make her liable either alone or with the principal and the other surety. Our sympathies, and we are sure those of the trial judge, are with the defendant. We regret that she must make up for the loss occasioned by her brother, but we cannot uphold her defense as a legally sound defense. Under this evidence and under the law, the judgment should be for plaintiff. It is our duty in a case of this type to enter the judgment which we believe the trial court should have entered.

The judgment is reversed and the cause remanded with directions to enter judgment for plaintiff against defendant in the sum of $1,062.02, with interest at 6 percent per annum from and after April 16, 1958.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: SPERRY, Commissioner.

text:
    Bernice WIMSATT, Plaintiff-Appellant, v. Clarence MITCHELL, Defendant-Respondent.
    No. 23951.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.
    Anderson, Anderson & Milholland, John C. Milholland, Harrisonville, for appellant.
    Elvin S. Douglas, Jr., Robert W. Spang-ler, Crouch, Crouch, Spangler & Douglas, Harrisonville, for respondent.
   SPERRY, Commissioner.

Plaintiff sued defendant for damages growing out of personal injuries received by her as a result of an automobile collision. There was a verdict for plaintiff in the sum of $145.00. From a judgment thereon plaintiff appeals.

There was evidence to the effect that, at the time the casualty occurred, plaintiff was operating her automobile southward on highway 71, south of Harrisonville; that, when she approached a point where the highway was intersected by a county road from the east, she was compelled to stop because another vehicle had stopped in the southbound traffic lane, north of the intersection; that plaintiff’s automobile came to a stop some eight feet north of a car ahead of her; that defendant was operating his pickup truck southward, following plaintiff, at a speed of 45 miles per hour; that defendant could have seen plaintiff’s stationary car for a distance of at least 150 feet before the collision occurred; that he applied the brakes; that his truck skidded eighty six feet and struck the rear of plaintiff’s automobile, and knocked it about two feet.

The cost of medical services to plaintiff was neither pleaded nor shown. No damages were sought based on the cost of repairs to the car, although plaintiff’s husband was permitted to testify in detail as to the nature, extent, and cost ($100.00) of repairs made necessary by the collision. Such testimony was offered to prove the force of the collision. Plaintiff prayed for damages in the amount of $15,000.00, solely because ■of her personal injuries.

Plaintiff stated that, on the date the accident occurred, November 30, 1960, she was driving to her home at Archie, Missouri, from her place of employment in Kansas City; that it was during the afternoon ; that she had five passengers but two had been dropped before the collision occurred; that the weather was clear and the pavement dry; that she stopped her car eight feet north of another car, at the Drake intersection; that she looked back and saw that the defendant’s oncoming truck would collide with her car; that she set the brakes; that the force of the collision threw her forward, then backward; that her car was knocked forward about two or three feet. She stated that, after the collision, as she proceeded southward, her neck began hurting; that no bones were broken; that when she arrived home she and her husband drove to Harrison-ville, to see Dr. Jones; that'he gave her some medicine; that her neck was sore and stiff, in her throat and into the shoulder blades; that, for three weeks, she lay on a heat pad at night; that Dr. Jones treated her; that she drove to work the morning after the accident, and worked from 7:45 A.M. until about 3:30 P.M.; that she operates a sewing machine making dresses; that she lifts as many as twenty five to thirty dresses at a time from one bench to another; that she lost no time from her work because of her injuries.

Dr. Jones testified to the effect that he treated plaintiff following the accident; that she had soreness in the muscles of the neck; some stiffness and muscle spasm; that she suffered a cervical muscle sprain; that he prescribed heat and administered muscle relaxants; that the injury was caused by the collision. He stated that-such injuries repair themselves with scar tissue, which is permanent.

The Doctor stated that he had treated plaintiff in July, 1959, for soreness in her right shoulder caused by the nature of the work that she performed at the dress factory; that he administered drugs usually given for neuritis or arthritis; that such complaints come and go; that he treated her with pain medicine for similar complaints twice in January, 1960; that he treated her in April, 1960, for soreness in the knee and j aw; that he treated her twice in August, 1960, for urinary infection; that he treated her in October, 1960, for an intestinal condition; that, after treating her November 30, 1960, he saw her December 10, 1960, when she complained of fatigue and of a cold infection, and had physical therapy; that he saw her January 7, 1961, when she complained of pain in the collar bone and in her right side; that he saw her January 11th, when she complained of pain in the back and shoulders; that he saw her January 28th for pain in her left shoulder and back; that he treated her March 11th for sore throat, chilling, and temperature due to influenza; that, in February, she had improved; that he last saw her in March 1961, when she was experiencing no discomfort and was dismissed. He stated that plaintiff never had any limitation of motion due to her injuries, and that he took no x-rays.

Dr. Feierabend examined plaintiff a few days prior to the date of trial. He stated that she had suffered some injury to the neck; that there was no limitation of motion in the neck; that x-rays disclosed less than normal cervical curve indicating muscle spasm; that it could have been caused by the injuries plaintiff received; that it is a whiplash injury which “stirred up this degenerative change I have described (arthritic) * * * the old pre-existing condition”; that the condition is permanent.

• Defendant admitted operating his car south on highway 71, at the time and place when and where the accident occurred. He stated that he saw plaintiff’s car stopped ahead of him, about 150 feet; that he put on his brakes; that his car skidded into the- rear of plaintiff’s vehicle; that he was almost stopped when the cars collided.

Mr. Drury, an employee of Fisher Body Company, and a deputy sheriff, passed the scene on his way home from. work. He stated that he stopped; that someone asked plaintiff if she was injured and that she stated that she was not hurt; that he saw no evidence of injuries. He described the extent and nature of the damages to plaintiff’s car (which were of a minor character). He stated that he observed no damage to the front of defendant’s truck. Defendant’s counsel then asked why he had made no report thereof. Plaintiff objected that it was “immaterial”, “not competent to prove any issue.” The objection was overruled and the witness said, “well, it didn’t seem to me like there was a terrible lot of damage and I thought they would settle it maybe between themselves there”.

. Mr. Barrett was in the car with Drury. He stated that someone asked plaintiff if she was injured and that she made no complaint; that he observed no evidence that she was injured. He stated that there was a dent in the bumper and one on the body of her car.

Dr. Barger, testifying for defendant, stated that-plaintiff had, some years previously, been his patient; that he examined her December 24, 1962; that she complained of pain and stiffness in the neck; that x-rays were taken; that she had a full range of motion in the neck, with no muscle spasm; that she had some arthritis in the neck; that, on the basis of her history, she had suffered a sprained neck; that the arthritic condition he found could cause pain in the neck; that it would come and go; that she had some loss of cervical curvature. He stated that a sprain is a tearing of soft tissues; that repairs thereto are made by scar tissue, which is permanent;, that the scar tissue is not as elastic as-undamaged tissue but that the area involved here is Vie of an inch, and of but. little import.

Plaintiff contends that that portion-of witness Drury’s testimony which was-admitted over her objection was prejudicial' to her claim for substantial damages; that: such testimony, coming from a public offi--cial, tended to belittle the extent of injuries-suffered by her. Of course, it was not proper to permit Drury to give his opinion as to the extent of plaintiff’s injuries. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 247-248. The admission of this-testimony was erroneous. However, we may not reverse a judgment except for material error affecting the merits of the case. Here, Drury had testified in detail, without objection, as to the extent of damages to the car; that he saw no-evidence that plaintiff had been injured; and that she had stated that she was not hurt. Plaintiff’s husband had testified in detail regarding damages to plaintiff’s car. Witness Barrett stated, without objection, that he saw no evidence that plaintiff had' suffered personal injuries and said that she-did not claim to have been injured when asked. Medical witnesses on behalf of plaintiff, as well as on defendant’s behalf,, had testified extensively and had been subjected to strict cross examination on the subject of the extent of plaintiff’s injuries.

We cannot say that the small amount of the verdict shocks the judicial conscience. The jury could well have reached the verdict it did reach under all of the evidence-adduced. It could have done so without the benefit of the cumulative evidence given-by Drury.

The jury could have found, from the evidence, that plaintiff suffered no more than a sprain of the neck muscles resulting in scar tissue to the extent of Vie of an inch, which, in Dr. Barger’s view, was of small import. The verdict would indicate that they did so believe. She reported to work, at Kansas City, the next morning at 7:45 A.M. She worked steadily thereafter, seven hours a day, without loss of time. Her work involved considerable lifting and frequent turning of her head from side to side, in sewing and in inspecting her work. We cannot say that the Drury testimony was prejudicially erroneous so as to require a reversal of the judgment. It was in the nature of cumulative evidence of the same general character previously admitted without objection. The Court did not abuse its discretion in overruling the motion for a new trial on this ground.

Plaintiff also complains that the Court improperly sustained objection of Counsel’s argument concerning the extent and effect of her injuries, and that such action tended to emphasize and aggravate the erroneously admitted Drury testimony.

One of plaintiff’s attorneys had stated in argument, without objection, that plaintiff had a cross to bear; that she had a painful neck and that that pain was a result of the accident; that there was an issue as to what that pain is worth over the period of her life expectancy of 34 years. Another of her attorneys stated:

“ * * * Her pains come and go. Pain is not a merchantable item. When you go down to the store you can not buy $10.00 worth of pain, they don’t sell pain that way and you are entitled to use your common sense and judgment and when we talk about relief from pain * * * you can’t buy relief from pain * * * and when you go to a dentist to have a tooth extracted and he puts novocaine in and pulls the tooth and stops the pain you don’t hesitate to buy that relief * * of course not * * * but * * *
“Mr. Spangler: I object to that as being out of the scope of the pleadings and improper argument.
“The Court: Sustained.”
* * :}: ‡. *
“The truck hit Mrs. Wimsatt, but Mrs. Wimsatt did not strike the car ahead and it is evident that Mrs. Wimsatt did exercise care and Mr. Mitchell did not exercise the care the others were using.
“The fact that this lady is not hopelessly crippled doesn’t put her out of court * * * she is entitled to what she has coming and I say to you * * * give her $7,500.00 which only amounts to about $200 per year for her compensation. * * *
“Mr. Spangler” I object to that as improper argument and ask that the jury be instructed to disregard it and counsel be reprimanded. * * *
“The Court: Sustained, your time is up.
“Mr. Milholland: I am entitled to argue permanent damages. * * *
“The Court: Ladies and gentlemen, you have heard all the evidence-in this case and you have heard arguments of counsel and you will now retire to the jury deliberation room to consider your verdict and you are now placed in the custody of the sheriff.”

This argument constituted an attempt to apply a mathematical formula.for adjusting plaintiff’s damages for. pain and suffering. Faught v. Washam (Mo.), 329 S.W.2d 588, 602 et seq. There the Court declared such an argument to be improper and prejudicial, requiring a reversal of judgment. The Court said:

“From time immemorial, the judicial measure of damages for pain and suffering has been fair and reasonable compensation [see Rigley v. Prior, 290 Mo. 10, 24-26, 233 S.W. 828, 832], because there is and can be no established standard, fixed basis, or mathematical rule by which such damages may be calculated.
* * * * * *
“To us, the considerations advanced by the authorities disapproving the mathematical. formula . argument ’ áre more persuasive. Whatever may be the cold logic or. academic theory of the matter, the ungilded reality is that such argument is calculated and designed to implant in the jurors’ minds definite figures arid amounts not theretofore in .the record (and which otherwise could not get into the record) and to influence the jurors to adopt those figures and amounts in evaluating pain and suffering and.in admeasuring damages therefor. If an argument of this character is permissible and proper, it would be just as logical, and equally as fair, to permit ‘expert witnesses’ to evaluate pain and suffering on a per diem or per hour basis — a revolutionary innovation which, so far as we are advised, not even the most ardent zealots of the mathematical formula technique have (as yet) proposed. Henne v. Balick, Del., [1 Storey 369, 51 Del. 369,] 146 A.2d 394, 398; Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 722-723, 60 A.L.R.2d 1331. The contention of its advocates that the mathematical formula argument is nothing more than that and is not evidence and that the fancied danger of its being mistaken for or accepted as evidence is greatly magnified and exaggerated by the timorous is a contention sound and plausible without but hollow and specious within. * * *”

The medical evidence and plaintiff’s testimony showing that she suffered no loss of income; or trine from her work, and her failure to suffer any loss of earning power, leaves her claim for damages resting almost entirely on the pain she had suffered and would suffer. The argument was calculated to invite the jurors to place themselves in plaintiff’s position in calculating the amount of damages, and to assess such damages at the sum of approximately two hundred dollars per year throughout her life expectancy, or at less than one dollar per diem. This constituted án :error, and the court properly sustained an objection thereto.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.'

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.