author: SPERRY, Commissioner. PER CURIAM.

text:
    Gerald WILLIS, Plaintiff-Appellant, v. WABASH RAILROAD COMPANY, a Corporation, and Edward F. Murray, Defendants-Respondents.
    No. 23919.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Keith Martin, Campbell & Clark, Kansas City, for appellant.
    John L. Davidson, St. Louis, James H. Ottman, John C. Dods, Kansas City, for respondents.
   SPERRY, Commissioner.

This is a suit for damages growing out of personal injuries received by plaintiff, Gerald Willis, when a Plymouth automobile which he was operating, was struck by an engine owned by defendant, Wabash Railroad Company, a Corporation, and being operated by defendant, Edward F. Murray, Wabash’s engineer. Plaintiff had a verdict in the amount of $15,000.00 but the court sustained the motion of defendants for judgment in accordance with defendants’ motion for directed verdict at the close of all the evidence, and, in the alternative, sustained defendants’ motion for a new trial. Plaintiff appeals.

Plaintiff submitted on the issue of failure to give the statutory warning. Defendants ■contend that no submissible case was made for the reason that plaintiff was guilty of ■contributory negligence as a matter of law, which issue they submitted. They also contend that plaintiff’s instruction No. 8, dealing with contributory negligence, is preju-dicially erroneous because it required the Jury to find that plaintiff saw the engine, instead of requiring it to find that, in the exercise of the highest degree of care, he ■ ■saw or could have seen the engine, in time to have avoided the collision.

Plaintiff was, at the time of the collision, 28 years of age and in good physical condition. His eyes and hearing were good. He had left Chillicothe, Missouri, at about 5 :45 A.M. on November 12th, 1959, to go goose hunting at Sumner, Missouri. He was operating a 1950 sedan automobile and had checked the car as to tires, brakes, etc., and it was in excellent condition. He was travelling south on a narrow, level, grav-elled road when he reached a point five hundred feet north of a crossing over the Wabash Railroad. He had travelled this road the morning before the accident occurred, at about the same time of day, and he knew the railroad and crossing were there. He stated that he knew that a train might pass over the crossing at any time, from either direction. He was then proceeding at a speed of 25 to 30 miles per hour. When from one hundred to one hundred fifty feet from the crossing he slowed to 15 miles per hour. The road was dry, there had been no rain or mist but it was cloudy and foggy, and his car lights were on. The time was then near 7:20 A.M. The road ran north-south and the railroad ran east-west, angling slightly to the north. The tracks ran straight for several hundred feet on either side of the crossing. The train involved in the collision consisted of 37 cars and caboose powered by two diesel engines, and was proceeding westward. The engines were painted light gray and blue. Plaintiff stated that the front of the automobile was struck by the front of the engine, that the car swung around and struck the side of the engine at a point about fifteen feet back of the front; that the car was carried into the guy or guard wires which were stretched between the first two of three guard posts placed along the west side of the travelled portion of the road, north of the railroad track. He stated that, when the train was finally stopped, he counted 5i^ cars and caboose east of the crossing; that the accident occurred at about 7:20 A.M.

. With reference to the facts and events existing and occurring immediately prior to the collision, he stated that, after reducing speed to IS miles per hour, one hundred to one hundred fifty feet north of the crossing, he proceeded to a point eighty five feet from the crossing; that the left window glass of the car was down; that there was no radio in the car; that he looked to the left and saw no train; no light, heard no whistle, bell or diesel horn, nor any sound of a train; that the view to the left was obstructed by trees and brush; that he then looked to the right and neither saw or heard anything; that he maneuvered the car to the right or west side of the road; that, when he was about fifty feet from the tracks he again looked to the left but that the view was still obstructed; that the railroad tracks were ten to fifteen feet higher than the road at that point; that he heard no sound and saw no train light; that he then proceeded to a point twenty five or thirty feet north of the crossing where, normally, he said, one could see to the east along the tracks; that his speed, at that point, was slowed to 8 or 10 miles per hour, (he could have stopped, at that speed, within five to ten feet) ; that he looked to the left, saw nothing, heard nothing; that he then put the car in second gear and proceeded, going up hill toward the crossing level; that, when fifteen feet from the crossing, he looked to the right; that he did not stop until, when he reached a point from three to five feet north of the track, “I caught him out of the corner of my eye”, that, that was “the only time I saw him, was after he came above the height of the trees, they were in foliage and he was approximately the same color as the leaves”, and that he applied the brakes and skidded into the engine.

However, plaintiff later said that he did not mean to say that he was from three to five feet north of the track when he first saw the engine, but that he was travelling at from three to five miles per hour when he first saw the train; that “I was further back than that, because when I was, oh, probably between fifteen and twenty feet back from the track, was when I looked over and then this train was coming áfi me from the left, at that time”.

The following then appears of record:

“Q. You were how far back?
“A. About, between probably fifteen and twenty foot at that time.
“Q. Fifteen to twenty feet from the track, and you looked at that time: and saw the train to your left?
“A. No, I didn’t see him at that — at that time.
“Q. * * * Did you ever see it?
“A. I saw it when it hit me, yes.
“Q. Now where were you when you got that glimpse of him? Flow far from the tracks?
“A; Oh, I don’t know, probably eight to ten foot, or maybe a little further than that.
“Q. All right, and travelling at what: speed ?
“A. I would say * * * at three t'cr five miles per hour”.

Plaintiff stated that, at that time, he applied the brakes as heretofore stated. He also stated that, when he first saw the train, he was still going slightly up grade.

Plaintiff introduced into evidence certain; exhibits, pictures of the crossing and of its-northern approach. They were received’ as fairly representative of the situation as-it existed there at the time of the collision. Exhibit 9, definitely fails to show the presence of leaves on the trees and brush on the-east side of the road, nor along the tracks, anywhere. There are no leaves. It shows-no shrubbery or trees from a point several feet south of the northern-most of the-three guard posts on that side of the road.. None between that point and the track. Plaintiff admitted that he could have-stopped his car at from five to ten feet,, and defendants offered expert testimony-to the effect that the car could have been stopped within from four to seven feet, depending on the grade.

Highway patrolman, Conyers, was notified of the occurrence shortly after 8:00 ' A.M. He had been using the lights of his car just prior thereto. He arrived at the scene at 8:35 A.M. Judging from the light conditions immediately following the time of the accident, he believed that, at 7:20, it wasn’t bright, that it was dusk; that there were trees on both sides of the gravel road, north of the crossing; that he made no measurements to determine how far one could see to the east along the tracks, but that one could see down the tracks from a point twenty five to thirty feet north of the tracks.

There was uncontroverted testimony by members of the train crew, offered by defendants, to the effect that the train consisted of 37 cars, a caboose and two diesel engines; that it was travelling at 35 miles per hour. They also stated that visibility was good, that there was no fog, and that it was daylight; that the train made a lot of noise; that the whistle and the crossing bell were being sounded; that the headlight and oscillating light were on; that, after dismounting from the engine, they could see back to the crossing, nine hundred fifty feet, and counted nineteen cars and two diesels, west of the crossing.

In dealing with the issue of contributory negligence, as presented here, we must determine whether there was any substantial evidence tending to excuse plaintiff’s failure to see the engine in time to have avoided the collision. Hale v. Kansas City Southern Ry. Co., Mo., 363 S.W.2d 542. In arriving at that determination, we will view the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences arising therefrom, and disregard defendants’ evidence unless it aided plaintiff. It was plaintiff’s duty, in approaching the crossing, to exercise the highest degree of care and the issue of his contributory negligence was for the jury if reasonable men would honestly differ upon the issue of whether plaintiff exercised the highest degree of care in the operation of the automobile at the time and place involved. Hale v. Kansas City Southern Ry. Co., supra, 363 S.W.2d 542, 545. It is with the above rules in mind that we have stated the facts as gleaned from the record.

The evidence discloses that plaintiff approached the crossing at a speed of eight to ten miles per hour when twenty five to thirty feet north; that, at that point, he looked to the left where he said, normally, he could see down the track. He said that he heard no sound of whistle, bell or horn, and that he saw no lights which, he said, he could have seen if the train lights had been on, and that he shifted to second gear. He said that it was cloudy and foggy. The patrolman, who arrived more than an hour after the accident occurred but who had received notice of the happening about forty minutes after the occurrence, said that he had had his automobile lights on just prior to having received the notice. He stated in his official report that it was not bright, but was “dusk” at the time the accident occurred. He stated in evidence that he based that part of his report on his knowledge of weather conditions existing where he was at about the time the accident occurred.

For the purpose of this opinion the facts are that plaintiff proceeded toward the tracks from a point twenty five to thirty feet north thereof, in second gear, at a speed of from eight to ten miles per hour, gradually diminishing speed until, at the time of the collision, he was travelling at a speed of from three to five miles per hour; that he first saw the train at a point eight to ten feet north of the track, while his car was still travelling up grade; and that no signals were sounded and no light shown by defendant.

Plaintiff testified to the effect that, at the time he first saw the train, out of the corner of his eye, he could have stopped within from five to ten feet. Applying the most favorable evidence rule, we may say that he could have stopped within ten feet and that 'his car was then eight feet from the track. We could not say, as a matter of law, that he could then have stopped within sufficient time to have avoided the accident.

Plaintiff knew of the railroad track and could see the cross buck warning sign located there from a point far north of the track. He began looking for a train when he was eighty five feet north of the track. There was testimony by his witness to the effect that one could see down along the track, eastward from the crossing, from a point from twenty five to thirty feet north thereof. Plaintiff stated that “normally” he could have seen to the left, down the track from that point. He counted five and one half cars, (a distance of two hundred twenty feet) east from the crossing, immediately after the collision occurred. There is nothing in his testimony or the other evidence, to indicate that so far as shrubbery and trees are concerned, he could not have seen to the left along the track, from twenty five to thirty feet north of the track, and from that point forward to the crossing. His own picture, exhibit 9, also clearly indicates this. However, he gave as his only reason for being able to see the train when he did see it, “was after he came above the height of the trees, on the south side of the tracks, they were in foliage and he was approximately the same color as the leaved’. Note that he did not mention the cloudy, dusky condition. He said that “he saw the engine when it came above the "height of the foliage of the trees, or the leaves. The obvious conclusion is that, in the exercise of the highest degree of care, he could have seen it before he did see it, had he looked, for plaintiff’s own exhibit ■positively disproves the existence of the only condition which, he said, prevented Tiim from seeing it sooner. When he was thirty feet from the track, the train travel-ling at 35 miles per hour with the car travel-ling at 10 miles per hour, the engine would "have been about one hundred feet from the •crossing. Visibility was not different at the moment he saw the train than it had been ■when plaintiff was thirty feet north of the crossing. There is no testimony that he looked during his travel along that portion of the road from twenty five to thirty feet north until he reached a point ten feet north of the track, a distance of from fifteen to twenty feet. He didn’t say that he was looking when he did see it, only that he caught a glimpse from the corner of his eye. So far as foliage is concerned, he could have seen the train at the point where he said he did look and at any time thereafter. It was his duty to look, and to see the approaching train, if he could have seen it in the exercise of the highest degree of care; and his failure so to do would constitute contributory negligence as a matter of law. Pipes v. Missouri, Pacific Railroad Company, Mo., 338 S.W.2d 30, 35. If it was plainly visible, and if he looked, he is held to have seen it. Pipes v. Missouri Pacific Railroad Company, Supra.

If the track was not clearly visible "at the point where he looked, (the plaintiff did not say that it was not) it was plaintiff’s duty to continue to look until he could see “even up to the crossing”. Pipes v. Missouri Pacific Ry. Co., Supra; Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 229, 172 S.W.2d 835, 848. But, according to plaintiffs’ testimony, he could have seen a train approaching, if one had been there, (and one was there) but for the blending of the leaves and foliage with the color of the engine, until the engine appeared over the top of the foliage of the trees. His own exhibit, which, the Court admitted in evidence on the theory that it depicted the conditions existing there on November 12th, 1959, all trees and shrubbery are completely bare of leaves or foliage of any kind.

The judgment setting aside the verdict and rendering judgment for the defendant is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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


source: Caselaw Access Project

author: BROADDUS, Presiding Judge.

license: Public Domain

text:
    Gary L. MULLENDORE, pro ami, Plaintiff-Respondent, v. Janies GENTRY, Defendant-Appellant.
    No. 23912.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.
    Roy F. Carter, Kansas City, for appellant.
    Michael F. Mahoney, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment for $5,000 and defendant has appealed.

On June 28, 1961, a clear, dry day, the plaintiff, Gary Mullendore; had brought his-automobile to a gradual stop in a line of non-moving traffic on Brush Creek Boulevard in front of the Nelson Art Gallery in Kansas City, Missouri. This particular line of traffic was lined up ahead of the plaintiff for approximately a half block, waiting for a traffic signal light. The Mullendore automobile, a 1957 Pontiac, was headed east, and it had been stopped for a number of seconds, somewhere in the neighborhood of twenty or thirty seconds in this line of eastbound traffic. While the Pontiac was stopped and waiting in this line of traffic, it was struck from the rear by a Ford automobile, which was being operated east on Brush Creek by the defendant, James Gentry. The force of the impact from the rear shoved the plaintiff’s Pontiac forward approximately six to eight feet and into the rear of a Simca car that was stopped ahead of it in this line of waiting traffic.

Brush Creek Boulevard was straight and level at the point where this collision occurred, and it ran straight and level for approximately a block and a half leading up to the place where the collision happened.

The plaintiff had been travelling east on Brush Creek Boulevard for a considerable •distance; he had not changed or switched traffic lanes, and he was completely within his proper lane of traffic at the time he was •struck from the rear. The defendant had been following the Pontiac for about two blocks.

The defendant admitted that he did not •see the plaintiff was stopped.

The plaintiff was thrown about inside his .automobile, and received certain personal injuries to his head, neck and back, for ■which he consulted Vance Link, M.D., his family doctor, and F. L. Feierabend, an -orthopedic specialist. He was examined and treated by Dr. Link or his office associates about seven times, the doctors’ bill being $63.00. Dr. Feierabend saw the plain-biff on ten occasions, his bill for services being $105.00. Furthermore, the plaintiff was hospitalized for the treatment of his injuries at the ' Independence Sanitarium, where the hospital bill amounted to $154.75. The plaintiff has paid $32.00 to $33.00 for prescriptions.

There was evidence that the charges of Dr. Link were reasonable and necessary, that the charge of $55.25 for eleven X-rays taken of the plaintiff in the hospital was fair, reasonable and necessary, that the hospital bill was fair, reasonable and necessary.

The plaintiff did not suffer from these injuries before this accident, and there was evidence that this collision had caused the plaintiff to sustain a permanent type injury to his neck. There was much other testimony in regard to plaintiff’s injuries and damages, but such further evidence would not be material to this appeal, because there is no claim that the verdict is excessive.

Defendant’s first contention is that the court erred in giving on behalf of plaintiff Instruction No. 1, for the reason that it does not require a finding that plaintiff’s injuries and damages were sustained as a direct and proximate result of defendant’s negligence.

The instruction reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that plaintiff Gary L. Mullendore was the operator of the 1957 Pontiac on the occasion mentioned in evidence and that at the time and place mentioned in evidence plaintiff was operating such automobile in an easterly direction on Brush Creek Boulevard west of its intersection with Rockhill Road and that said Pontiac was standing in a line of traffic stopped on the south half of said Brush Creek Boulevard and that the defendant James Gentry was operating a Ford in an easterly direction on said Brush Creek behind and to the rear of said Pontiac and that at a time when the Pontiac had been standing in the position aforesaid for several seconds said Ford overtook and collided with the rear end of said Pontiac and knocked or pushed it forward into collision with the Simca automobile, and that defendant failed to exercise the highest degree of care and was negligent in allowing said Ford to so collide with the rear end of said Pontiac, if so, and that as a result of such negligence of defendant Gentry, if so, plaintiff was injured and damaged, and that plaintiff was not guilty of negligence as submitted in instruction 10, then, if you so find, plaintiff is entitled to recover and your verdict will be for the plaintiff and against the defendant”.

There was no evidence whatsoever in this case from which the jury possibly could have inferred that the plaintiff’s injuries and damages were caused by anything other than the negligence of the defendant or of the plaintiff or a combination of their negligence. Instruction No. 1 took each of these possibilities into consideration, and directed the jury to find (a) that the defendant was negligent in overtaking the Pontiac driven by the plaintiff and in allowing his Ford to collide with the rear end of the Pontiac at a time when the Pontiac had been standing in a line of traffic at a designated place for several seconds, (b) and that "as a result of such negligence of the defendant, if so, that the plaintiff was injured and damaged”, (c) and that the plaintiff was not guilty of negligence himself as submitted in defendant’s contributory negligence instruction. An instruction must be considered in light of the evidence. Creech v. Blackwell, Mo., 318 S.W.2d 342.

As pointed out by the Supreme Court in the Creech case, 1. c. 351 of 318 S.W.2d:

“ ‘ “If an instruction on contributory negligence requires the finding of negligent acts which, in the nature of things, necessarily contributed directly to cause the injury and necessarily formed a part of the efficient cause thereof, then the instruction cannot be held erroneous because it does not require the jury to draw the inference which the law itself draws therefrom.” ’ There is no magic in the words 'proximately’ or ‘directly’. Their function is to exclude remote and non-causative negligence". (Emphasis supplied).

The same rule applies to a verdict-directing instruction as applies to a contributory negligence instruction. This is conceded by defendant in his brief.

Instruction No. 1 in the instant case specifically required the finding of negligent acts of the defendant, and it also required the definite finding that the plaintiff was not contributorily negligent, then why should it be held erroneous simply because it does not require the jury to draw the inference which the law itself draws therefrom?

In the case of Giambelluca v. Missouri Pacific Railroad Company, Mo.Sup., 320 S.W.2d 457, 1. c. 469, the court held:

“As a rule it is safer that an instruction submitting the issue of primary negligence or contributory negligence to modify the submission of the essential element of causation by the use of the word ‘directly’ (or ‘proximately’). * * * However, where, as here, the instruction requires the finding of negligent acts which, in the nature of things, necessarily directly or proximately caused the injury, then the instruction cannot be held erroneous because it does not require the jury to draw the inference which the law itself draws therefrom. Creech v. Blackwell, supra; Wilson v. Toliver, Mo.Sup., 305 S.W.2d 423; Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912; Stumpf v. Panhandle Eastern Pipeline Co., supra [354 Mo. 208, 189 S.W.2d 223]”.

The Giambelluca case, supra, was referred to by the St. Louis Court of Appeals in the recent case of Martin v. St. Louis Public Service Company, 368 S.W.2d 498, 1. c. 502:

. “In the instant case, the evidence excluded any remote acts of negligence from the jury as did the wording of the instruction in the findings therein required of the jury; and while it would have been better form to do so, Giam-belluca v. Missouri Pac. R. Co., supra, it was not prejudicial error to fail to use the words ‘proximately’ or ‘directly’ in the manner defendant urges”.

In the present case, there was no evidence whatever that plaintiff’s injuries and damages could have been caused by a purely accidental or remote cause. We rule the point against defendant.

At plaintiff’s request, the court gave Instruction No. 3 on the measure of damages. Defendant contends that the instruction was erroneous because it allowed the jury to assess damages for mental suffering when there was no testimony to that effect. In the case of Caspermeyer v. Florsheim Shoe Store Company, Mo.App., 313 S.W.2d 198, 206, the court re-stated the long established rule in this state that:

“Physical pain and mental anguish, usually and to some extent necessarily flow from or attend bodily injuries. It was not necessary to make specific proof of pain and mental anguish. These elements of damage are sufficiently shown by the evidence which discloses the nature, character and extent of the injuries. From such evidence the jury may infer pain and mental anguish”.

Defendant also says the instruction is erroneous because it allowed recovery for the reasonable cost of medical, hospital, doctors’ and X-ray bills when there was no testimony as to the reasonableness of certain doctors’ and medical bills.

There is no dispute that there was testimony as to the cost of all doctors’, medical X-rays and hospital bills. Likewise, there is no dispute that there was evidence as to the necessity and reasonableness of Dr. Link’s bill for services, the cost of X-rays and the bill from the hospital. Nor is there any dispute that the plaintiff paid for his prescriptions. The only items of special damages, of which the defendant now complains are the bill from Dr. Feierabend and the cost of the plaintiff’s prescriptions.

Since the plaintiff testified he paid for his prescriptions this proof of payment would suffice as evidence of the reasonableness of the charges. Gooch v. Avsco, Inc., Mo., 340 S.W.2d 665, 669; Myers v. Karchmer, Mo., 313 S.W.2d 697, 707.

The plaintiff testified that his bill from Dr. Feierabend was $105.00. Granted that there was no direct evidence adduced that the charges of Dr. Feierabend were reasonable, nevertheless, it can be inferred that his charges were reasonable, when it is considered that there was testimony that Dr. Feierabend was an orthopedic specialist, that he had seen the plaintiff professionally on ten separate occasions, as compared to the testimony that the plaintiff had been seen by Dr. Link, or his associates, who were not specialists, about seven times, their doctors’ bill of $63.00 being reasonable. The defendant did not question the reasonableness of Dr. Feierabend’s bill.

In the case of Cordray v. City of Brookfield, 88 S.W.2d 161, Mo.Sup., an instruction allowing damages for medical charges was properly submitted with a mere showing of the amount of the bill. In the Cordray case, 1. c. 164, the court remarked that since the defendant did not question the reasonableness of the bill, and since the plaintiff acknowledged the bill, and since the services had been continued at regular intervals, there was a basis for a fair inference that the charges were reasonable. The contention lacks merit.

Finally, defendant contends that the . instruction by directing the jury to take into consideration “the nature, character and extent of plaintiff’s injuries”, and the “physical pain and mental suffering” authorized a double recovery. In the case of Moss v. Mindlin’s, Incorporated, 301 S.W.2d 761, Mo.Sup., the following instruction was before the court:

“The court instructs the jury that if you find the issues in favor of the plaintiff and against the defendant as submitted in other instructions herein, then it becomes your duty to assess damages against the defendant in whatever amount you may find and believe from the evidence would properly and reasonably compensate the plaintiff for any and all injuries received as a direct result of the fall mentioned in evidence.
“In arriving at the damages, if any, you may take into consideration and account the following: The nature, character and extent of the injuries, if any, received by the plaintiff; the pain, suffering and misery which plaintiff has endured and which you may find and believe from the evidence as reasonably certain in the future to endure as a direct result of such injuries; the physical disability and impairment which you may find and believe from the evidence that plaintiff has suffered and may be reasonably certain Jo suffer in the future as a direct result of said injuries; * * * together with any future .pain, suffering and disablement which you may find and believe from the evidence it is reasonably probable plaintiff may be expected to suffer and undergo as a direct result of said injuries”. (Emphasis ours).

Regarding this instruction the court said: “The first paragraph clearly tells the jury that it is to assess damages against the defendant in whatever amount it may find and believe from the evidence will properly and reasonably compensate the plaintiff for any and all injuries received as a direct result of the casualty. The items which follow are matters which the jury may consider in assessing the damages correctly directed in the first paragraph. The detailed considerations in the second paragraph of the instruction would not be understood, in our view, as separate damages to be allowed, in addition to the damages to be assessed by the first paragraph. They are within the allowable damage not additions to it”.

Other cases in which similar instructions were before the court and were held not to be prejudicially erroneous are Brooks v. Mock, 330 S.W.2d 759, 768, Mo.Sup.; Keehn v. D. R. F. Realty & Investment Co., 328 Mo. 1031, 43 S.W.2d 416, 417; and Minks v. Smith, 367 S.W.2d 6, 8, 9, Mo.App.

The judgment is affirmed.

All concur.


author: DEW, Special Commissioner. PER CURIAM.

text:
    Cecil B. HOBBS and Doris Hobbs, Appellants, v. KANSAS CITY POWER & LIGHT COMPANY, a Corporation, Respondent.
    No. 23804.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Harold J. Toner, Kansas City, for appellants.
    Joseph J. Kelly, ^r., William H. Woodson, Donald W. Gifiin, Spencer, Fane, Britt & Browne, Kansas City, for respondent.
   DEW, Special Commissioner.

The plaintiffs (appellants) sued, defendant (respondent) for damages .sustained by them in the partial destruction of their house and much of its contents by fire alleged to have been caused by the negligence of the defendant. The case was submitted on the theory of res ipsa lo-quitur. A nine-man jury returned a verdict for defendant. Plaintiffs have appealed from the judgment rendered thereon.

The gist of the petition in the case is that plaintiffs were customers of the defendant, which furnished electric service to plaintiffs in their home, and that disturbances occurred in the defendant’s electrical appliances which would ordinarily not take place, and which directly caused the fire and damages pleaded. The defendant’s answer, after challenging the sufficiency of the petition to state a cause of action, was in the nature of a specific denial of the allegations of negligence in plaintiffs’ petition.

Inasmuch as the plaintiffs assign as their sole point of error matters of an abstract nature pertaining to defendant’s Instruction 8, given in the case for the defendant, a detailed recitation of the voluminous evidence, largely of a technical or scientific character, is not essential to a determination of this appeal. As more fully stated hereinafter, the instruction dealt solely with the law pertaining to the right of a jury to presume negligence and with the propriety of cautionary directions relative to surmise, guesswork and speculations on the part of the jury. Plaintiffs concede that “under their presentation the facts are relatively unimportant” in this appeal.

The defendant, however, in its brief, first reviews at considerable length the mass of evidence, technical and otherwise, in support of its motion for a directed verdict made at the close of all the evidence, overruled by the court, but which defendant here argues should have been sustained. Notwithstanding the fact that the verdict and judgment were in its favor, the defendant submits and asserts as a part of its contention here that plaintiffs failed to make a submissible case for the jury. Defendant seeks to justify such inclusion on the ground that it explains why “the jury was left to speculate and conjecture concerning a matter upon which there was no substantial evidence”. We do not believe the circumstances warrant a review of the submissibility of plaintiffs’ case, not raised in their appeal and we shall confine the statement of the facts to such as we deem pertinent for purposes of identifying the general nature of the case and for a ruling on the abstract questions submitted by the plaintiffs for review.

In 1951 or 1952, plaintiffs, combining their own services with hired help, began the construction of their two-story house on their property near Lake Waukomis, Platte County, Missouri. They moved into it in April, 1954, although it was not yet completed. 'Temporary electrical service from defendant was arranged for purposes of construction. In the early part of 1954, they installed log siding on their house and engaged defendant to make permanent electrical connection to the east outside wall of the building to which plaintiffs could make connection for general service in the interior. Accordingly, defendant installed a meter socket outside at the place designated, furnished and installed therein an electric meter and connected therewith electric wires through to plaintiffs’ fuse box inside, for indoor wiring. It was said that this was done under inspection required by the defendant of its employees. Under such arrangement the defendant continued to own, maintain, and to be responsible for the meter, meter socket and all power appliances and connections outside the house. All of the electric equipment inside of the house was owned and maintained by the plaintiffs and there was evidence that the same was installed in compliance with the electrical code. Plaintiffs’ service came through the same transformer that served three neighboring houses considerable distances apart

On February 10, 1955, at about 2:20 p. m., the plaintiffs left their home to go to their respective places of employment. The only electrical connections left on were the refrigerator, the furnace fan and the electric clock. The outside temperature was below zero. During the afternoon two of the three neighbors served by the same transformer were away from home and the third was asleep until near 6:30 p. m. A more distant neighbor said their electric clock stopped at 2:41 p. m., but that the power came on again at 5:30, went off again and at 6:00 came on “for good”, except for momentary flickering. Another neighbor, one-eighth of a mile distant, saw arc flashings on the ice near plaintiffs’ house and he later drove there and found the house on fire and the fire department on hand. Other persons arrived to see what the excitement was about. There was so much smoke in the house at that time that very little could be seen by anyone as to what part or how much of the interior had been charred, burned or totally destroyed. There was, however, an abundance of evidence, photographic, technical and scientific, as to where most of the burning took place, whether it appeared to have started at, near or remote from defendant’s meter and meter socket or in the interior of the building. Plaintiff, Mrs. Hobbs, testified that she had had no trouble theretofore with the electricity in her home except occasional blinking of the lights.

In substance the principle issue of fact was whether the arcing in defendant’s meter and meter socket on the outside east wall of the house started the fire and caused the damages to the interior of the house and to its contents, or whether the origin of the fire was within the house, damaging the same and contents and causing the arcing in defendant’s meter and meter socket connected to the outside east wall.

As stated, plaintiffs’ sole point of error is that the court eri^ed in giving Instruction 8 at defendant’s request. It read as follows:

“The Court instructs the jury that negligence is not in law presumed, but must be established by proof as explained in other instructions.
“Neither are you permitted to base a verdict entirely and exclusively upon •' mere surmise, guess work and speculations; and if upon the whole evidence in the case, fairly considered, you are not able to make a finding that defendant was liable without resorting to surmise, guess work and speculation outside of and beyond the scope of the evidence, and the reasonable inferences deducible therefrom, then it is your duty to, and you must, return a verdict for defendant.”

Under their first point of error in the giving of Instruction 8 in a res ipsa loquitur case, plaintiffs assert generally that in the first paragraph thereof the jury is told that “negligence is not in law presumed” and in the second paragraph the jury is advised that “neither are you permitted to base a verdict entirely and exclusively upon mere surmise, guess work and speculation”, etc., whereas, it is urged, such action of the court was either error as a matter of law or was an abuse of discretion. Plaintiffs subdivide their reasons for the above contention into seven sub-assignments, the first four of which may be considered together, in which they maintain, in effect, that each paragraph of the instruction is confusing and misleading, and that the first paragraph is a positive misdirection of the law.

It is insisted by plaintiffs that to tell the jury in a res ipsa loquitur case that negligence may not be presumed, and yet, that they may not, in their deliberations, “go outside of and beyond the scope of the evidence (and reasonable inferences therefrom)” is, in view of the history of the law in such cases, either confusing and misleading to the jury or is an abuse of the court’s discretion.

It is obvious that plaintiffs’ quotation of the part of the first paragraph of Instruction 8 objected to is incomplete and the instruction was therefore not considered in its entirety as required by law. Burgess v. Kansas City, Mo.App., 242 S.W.2d 591; Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449; Perry v. Stockhoff Supply Co. et al., Mo., 356 S.W.2d 92, 95. The language omitted and which modified the statement quoted was “but must be established by proof as explained in other instructions”. (Italics supplied). In other words, considering the instruction in its entirety and together with other pertinent instructions given in the case (hereinafter noted), the court was advising the jury that the ultimate issue of defendant’s negligence could not be presumed but must be determined upon all of the evidence in the case as explained in other instructions.

That such was the meaning of the first paragraph of Instruction 8 cannot well be disputed by the plaintiffs. Instruction 1, given at their request, told the jury, in part, that if they “found and believed from the evidence that on February 10, 1955, there was an electrical arc in said meter or meter socket and as a direct and proximate result thereof” excessive current was caused or permitted to flow or go into plaintiffs’ cable between the meter socket and the base or back of plaintiffs’ fuse box and thereby overheat the cable and fuse box, and “ * * * that as a direct result thereof a fire was caused or ignited which damaged the house and contents, and * * * that the meter, meter socket and all other electric equipment owned by the Power Company were under its sole care and control, and * * * that such electrical arc did cause or permit excessive electrical current to flow into or go into plaintiffs’ cable and fuse box and was an occurrence unusual and out of the ordinary course of events in supplying electricity to houses, then you may infer that such electrical arc was caused by the failure of the defendant Power Company to use and exercise the highest degree of care in installing and maintaining the meter, meter socket and electrical appliances owned by it, and if you find from all of the evidence that defendant did fail to use a very high degree of care in installing and maintaining said meter * * *, then the defendant Power Company was negligent, and if you find that such negligence of the defendant, if any, directly caused or ignited the fire in plaintiffs’ house and contents, if so, then your verdict should be in favor of plaintiffs and against the defendant”. (Italics supplied).

Furthermore, Instruction 4, given at plaintiffs’ request, stated: “You are further instructed that the court does not mean to assume as true or establish any of the matters mentioned or referred to in the instructions, but leaves to you to determine from the evidence whether or not such matters have been established as facts by the evidence”. (Italics supplied). Thus, at plaintiffs’ instance the jury was repeatedly advised that the facts necessary to constitute an inference of negligence in the case as specifically set out in plaintiffs’ instructions, must be determined by the jury on the evidence. Instruction 8, in substance, simply told the jury that they could not presume or infer negligence except upon proof as explained in other instructions.

Again, Instruction 5, given at plaintiffs’ request, after the giving of Instruction 8, informed the jury that if they found by the greater weight of the testimony that the facts submitted by them in Instruction 1, were true, then plaintiffs had sustained their burden of proof; that the burden of proof of negligence need not be sustained solely by direct and specific testimony, but may be inferred by the jury from the facts and circumstances in evidence “which the jury may believe to be true unless the jury finds from the evidence that the defendant was not negligent”. (Italics supplied). Thus, again, plaintiffs seem to concede that regardless of the right to infer negligence in their prima facie case upon the establishment of the facts enumerated in their Instruction 1, the jury was required to determine the ultimate fact of defendant’s negligence from all the evidence.

Plaintiffs cite and rely strongly upon the case of McCloskey v. Koplar et al., 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641, en Banc. In that case the court had under consideration an instruction in a res ipsa case which charged the defendant with the burden of proof by a preponderance of the evidence. It was ruled that only the burden of evidence was shifted and that the burden of proof rested with the plaintiff throughout the trial. In the course of the decision the court said that in such cases the plaintiff, by showing certain facts, makes a prima facie case which raises an inference or a prima facie presumption of defendant’s negligence in some way.

In Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, Div. 1, the court considered two instructions in a res ipsa case, one offered by the plaintiff and one by defendant. The plaintiff’s instruction submitted certain facts, which, if found to be true, were declared to raise the presumption of negligence on defendant’s part, and the burden of proof was cast upon defendant to overcome such presumption. Upon the authority of McCloskey v. Koplar, supra, the court ruled the instruction improper in a res ipsa case as erroneously shifting the burden of proof upon the defendant. The court also ruled defendant’s instruction misleading because it declared that the jury had no right “to presume negligence, nor to speculate upon the facts, and if the evidence does not preponderate in favor of the plaintiff, then your verdict should be for the defendant”. As to the latter language the court then said that in a res ipsa case the jury did have a right to presume (infer) negligence from the facts shown in plaintiff’s evidence.

However, the Supreme Court, Div. 1, in West v. St. Louis Public Service Co., Mo., 236 S.W.2d 308, a res ipsa loquitur case, had before it the exact instruction with. which we are here concerned. The same language was omitted in that appeal as in the instant case. The court there reiterated the rule requiring a criticism of an instruction to be determined by considering the instruction in its entirety and not by isolated' words and phrases, and only in conjunction with other instructions given in the case. At page 312 of 236 S.W.2d, the court said the instruction had this meaning:

“Negligence is not a presumption of law but it must be proved as explained in other instructions. If, upon all the evidence in the case, including reasonable inferences to be drawn therefrom, the jury, is unable to make a finding that defendant is liable, they are not permitted to go outside of and beyond the scope of the evidence and reasonable inferences drawn therefrom, and base a verdict for plaintiff entirely and exclusively upon mere surmise, guess work and speculation. If this is the meaning of the instruction (and we think it is), it is a correct statement of the law, in abstract form, and it is not in conflict with the principles stated by this Court in Harke v. Haase, supra.
“We do not think that the instruction is reasonably susceptible of the meaning that the jury was not entitled to * * * surmise or speculate upon the facts in evidence in the process of drawing reasonable inferences therefrom. If the instruction had such meaning, it would come within the condemnation of Harke v. Haase, supra, and Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471, 479”.

The court, while noting that it did not commend the form of the instruction under ■consideration, declined to construe it, when read in conjunction with the other instructions in the case, as confusing or misleading to the jury.

In the more recent opinion by the same ■court and same division in Grote v. Reed, Mo., 345 S.W.2d 96, the identical instruction as to presumption of negligence was considered in a res ipsa loquitur case. Citing with approval the West case, supra, the court said that “the other instructions” referred to therein would reasonably be considered by the jury as referring to the plaintiff’s main instruction, setting forth the facts which the plaintiff therein was required to prove in order to find negligence on defendant’s part, and that the jury would not have been confused or misled by the phrase in question. Regarding the remainder of the instruction pertaining to surmise, guesswork and speculation, the court, upon the authority of the West case, supra, overruled the contention that such direction was contradictory or prejudicial.

It is also significant at this point that upon plaintiffs’ objection to Instruction 8, the trial court herein allowed Instruction 4 at plaintiffs’ request wherein the court told the jury that it did not “assume as true or established any of the matters mentioned” in the other instructions “but leaves to you to determine from the evidence whether or not such matters have been established as facts by the evidence”.

Plaintiffs next insist that if defendant was entitled to the second paragraph of Instruction 8 in a res ipsa case, then it should have been submitted to the court “in a motion to dismiss (as a law question) and not to the jury (as a fact question)”. The argument is that the question as to when the facts in a case prohibited a judgment for the plaintiffs because of the “new rule” against piling inference upon inference, should be determined as a matter of law by the court and not left to the jury under contradictory and conflicting instructions. As a matter of fact the defendant did present the matter to the court as a matter of law in its motion for a directed verdict at the close of the evidence. In that motion the defendant submitted that “there is no evidence, or no sufficient evidence, even with the reásonable inferences therefrom, if any, that * * * the defendant’s electrical wires, appliances, * * *, directly and proximately caused the fire in question and plaintiffs’ damages * * * ”; that “as a matter of law under the evidence and the reasonable inferences therefrom, if any, the fire in question and plaintiffs’ damages, if any, were not directly and proximately caused by electric current, sparks * * * discharged by defendant’s electrical wires * * * ”; that “there is no evidence, or no sufficient evidence, even with the reasonable inferences therefrom, if any, * * ” that on the day of the fire “defendant carelessly and negligently caused, suffered or permitted its electrical wires, appliances * * * to emit or discharge electric current, sparks, fire or flames at plaintiffs’ premises * * * ”; that “there is no evidence, or no sufficient evidence, even with the reasonable inferences therefrom, if any, that defendant directly and proximately caused * * * or permitted any electrical wires, appliances, * * * to emit and discharge electric current, sparks * * * ” at plaintiffs’ premises nor that plaintiffs’ real and personal property * * * was directly and proximately caused to be destroyed or damaged by any carelessness or negligence of the defendant, etc., and that the jury was unable to determine the cause of the fire without resort to guesswork and speculation. Granting that the sufficiency and correctness of any of the evidence became a matter of law to be first determined by the court, we deem the defendant’s motion for a directed verdict at the close of all the evidence on the grounds therein stated to have satisfied that requirement. The point is overruled.

Plaintiffs next maintain that the court' abused its discretion in the giving of Instruction 8 because the court erroneously believed that although the same or similar instructions had been criticized by some of the appellate courts, the trial courts, nevertheless,' should continue to allow thé same in cases until a ruling has been made that such an instruction is reversible; and ' that the court further erroneously believed that defendant, which' asked for 'it, would. have the burden of upholding the giving of it.

The plaintiffs call attention in their brief to a memorandum opinion dictated by the trial judge into the record of the instant case when ruling upon plaintiffs’ motion for a new trial. In it the judge stated that prior to giving Instruction 8, he had examined a memorandum brief filed with the court in anticipation of the giving of that instruction, and that the language contained in that instruction had been criticized by appellate courts; that the court had inquired of counsel if any appellate courts had held such instruction prejudicial and that no case had been called to the court’s attention which ruled the same as a ground for reversal. The memorandum of the judge further stated that he had called to the attention of defendant’s counsel the fact that the language of such instruction was often preliminary to a reversal of the case, but that the court would give Instruction 8 as required by defendant, but defendant would have to carry the burden of convincing the appellate court that there was no error in giving it. The memorandum further stated that thereupon plaintiffs offered Instruction 5, which was given; that the attorneys were unable to point out at the hearing of the motion for new trial a single case wherein the giving of an instruction similar to Instruction 8 was held prejudicial error and a ground for .a new trial.

Thus, it is argued, the trial judge in fact exercised no discretion at all in the giving of Instruction 8. In such event, it is asserted, the reluctance of an appellate court to disturb the exercise of sound discretion by the trial judge, should not here obtain. It is our opinion, however, that the trial .court not only exercised its sound discretion, in the giving of Instruction 8, but in no way abused that prerogative, as evident from its explanatory memorandum. See Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158, 161; LeGrand v. U-Drive-It Co., Mo., 247 S.W.2d 706, 711; Paige v. Missouri Pacific R. Co. et al., Mo., 323 S.W.2d 753; Grote v. Reed, supra.

As a final ground assigned under plaintiffs’ Point I, repetitious in subject matter, it is suggested that this is a logical case for reversal for the giving of Instruction 8 because of the repeated criticisms of the same or similar language by the appellate courts; that the defendant was duly warned of the plaintiffs’ contention regarding it; that the court erroneously believed that the defendant would have the burden of convincing the appellate court of its correctness and that the court failed to exercise any discretion in giving it. These points, of course, have been raised and ruled upon in this opinion. We find no justification for their further review

Plaintiffs’ Point II is that if the giving of Instruction 8 was not an error as a matter of law, the court abused its discretion in giving it in view of the fact that said instruction, and Instructions 6 and 7, all directed verdicts for defendant on abstract statements of law. It is urged that the cumulative effect was improper and was so called to the attention of the court at the trial.

Defendant’s Instruction 6 was verdict-directing and was practically a converse of plaintiffs’ Instruction 1. Defendant’s Instruction 7 placed the burden of proof on plaintiffs, telling the jury such could not be sustained by the mere fact of the occurrence shown by plaintiffs’ evidence, but that if upon all the evidence in the case the jury found defendant not negligent, their verdict should be for the defendant. In view of the inferences allowed in plaintiffs’ prima facie case under their Instruction 1, we deem it not an abuse of discretion for the court to give the two cautionary instructions without restating all of the salient facts relied upon.

In support of their Point II, plaintiffs cite only the case of Dill v. Dallas County Farmers’ Exchange No. 177, Mo., 267 S.W.2d 677, 680. The instruction considered in that case specifically singled out the fact that “plaintiff slipped on floor and has brought suit claiming defendant was negligent”, advising the jury that such mere facts were no evidence that defendant was negligent. The instruction thereupon continued in the same language as we find in Instruction 8 at bar. The court there, at page 680, held that the facts excluded were some evidence of the ultimate liability and said: “It is true that the giving or refusing of cautionary instructions is largely within the discretion of the trial court. But, mere abstract statements of law do not make proper verdict-directing instructions. It is noted that defendant’s Instructions Nos. 4, 5 and 6 were all three verdict-directing instructions”. The court in that case was considering an instruction containing a fact element not contained in Instruction 8, in the instant case, namely, the determination of a material fact tending in and of itself to prove negligence. The court ruled that the facts excluded were some evidence of liability to be considered. The court’s mere reference to the fact that there were two other verdict-directing' instructions cannot be construed as a ruling that in no case may more than one or even two or more cautionary instructions be given on abstract statements of the law, without setting forth all of the essential facts in the case. The same court, in the later case of Grote v. Reed, supra, 345 S.W.2d at page 101, said : “However, it is elementary that burden of proof instructions and certain other cautionary instructions * * * which relate to matters concerning the proof are not required to hypothesize facts even though they direct a verdict. An attempt to hypothesize facts in that type of instruction would frequently be cumbersome and often confusing to the jury”. We hold that the court in the case at bar did not abuse its discretion in giving Instruction 8 because of the giving of defendant’s two cautionary Instructions 6 and 7.

Since we find no error in the trial of the case materially affecting the merits, the judgment of the trial court should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

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

All concur.


author: MAUGHMER, Commissioner. PER CURIAM.

text:
    Samuel CHARD, a Minor, by his Mother and Next Friend, Dorothy Chard, Appellant, v. CLARKSON CONSTRUCTION COMPANY, a Corporation, Respondent.
    No. 23943.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.
    Laurence B. Silks, John R. Monaghan, Silks & Silks, Kansas City, for appellant.
    A. Warren Francis, Lloyd A. Hamrick,, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is a suit by Samuel Chard, a minor, through his mother as next friend, to recover damages for personal injuries allegedly caused by the negligence of defendant Clarkson Construction Company. This cause was submitted to the jury and it returned a verdict in favor of plaintiff for $11,200. Defendant offered no evidence and elected to stand upon its motion for directed verdict which was presented at the close of plaintiff’s evidence. After due consideration of defendant’s after-trial motions, the court sustained its motion for directed verdict, set aside the verdict of the jury and entered judgment for defendant. In the alternative, the court granted defendant a new trial for error in the giving of Instruction No. 1. The court specified no reasons for its actions.

The accident in which plaintiff claimed he was injured occurred on Sunday, September 11, 1960. Through answers to interrogatories we learn that defendant Clarkson Construction Company had received a contract from the State Highway Commission of Missouri to do the grading and drainage construction incident to the building of the Southeast Freeway (Interstate Highway No. 70) in Kansas City, Missouri. Defendant had commenced but had not completed its work under that contract. During August and September, 1960, Clarkson had excavated a cut or embankment approximately 10 feet deep along an east-west line “just south of and immediately adjacent to the south property line” of a residence property and lot known as 5916 East 30th Street, Kansas City, Missouri. The side of the cut adjacent to this property was not perpendicular but was sloped to a degree of Yi to 1. There was no evidence as to how close the side of the cut was to the 30th Street property. Immediately prior to September 11, 1960, defendant had dumped “rock and earth” to make a fill at this location. The fill had been “compacted and graded”. The record does not reveal the depth of the cut after the August “fill”, but it was filled again in October. The cut was barricaded and lighted at Topping Street, about two blocks away.

The property (5916 East 30th Street, Kansas City, Missouri) on September 11, 1960, was the residence of Mrs. Bernice Miller, plaintiff’s aunt. Plaintiff at the time was six years of age. His father and mother had gone to New Jersey to attend a funeral. The plaintiff Sammy and his two brothers had been left in the care of their paternal grandmother Mrs. Helen Chard.

On the afternoon in question the grandmother and three boys came to 5916 East 30th Street for a visit. According to Mrs. Miller her two small children and her three nephews played in the house until 7:30 p. m. when the grandmother, and her three charges started to go home. The children were told to “go to the car”, but instead went into the yard. Continuing her testimony Mrs. Miller said: “ * * * and we saw the kids come running, hollering that Sam had got hurt”. Mrs. Miller said that her son on the next day “showed her where the accident happened”, but the son did not testify. This evidence was properly stricken.

Mr. Wm. J. Chard, plaintiff’s father, testified but knew nothing about where the accident occurred. The same comment applies to the testimony of Mrs. Dorothy Chard, the boy’s mother. She was in New Jersey at the time of the accident. During her testimony she was handed a photograph identified as plaintiff’s Exhibit 3. She said this was a picture of the place where Sammy fell; that Sammy, a few days after the accident, had told her “this was where he fell”. This testimony is of course utterly inadmissible and the trial court so ruled.

Apparently there was only one eyewitness to the accident and that was the plaintiff himself who was six years old at the time he fell, and nine years of age at the time of trial. Because he was the only eyewitness and because his testimony is so vital we shall set it forth almost in toto. Sammy was first interrogated by the court to determine if he was a competent witness. It was ruled he was competent. Among the questions put by the court and answered by Sammy are these:

“Q. Tell me this, do you remember this accident you had?
(Witness shakes head).
“Q. No? You do not?
(Witness shakes head).
“Q. Do you remember going out there and falling at all?
(Witness shakes head).
“Q. No? What is your lawyer’s name here ?
(No answer).
“Q. Mr. Silks? You have forgotten?
THE COURT: Are there any questions you want to ask him, Mr. Silks?
MR. SILKS: I have no questions, Your Honor.
“Q. (By The Court) Has your mother asked you about this accident, how it happened?
(Witness shakes head).
“Q.. No? If I ask you to tell me how you hurt your arm, what would you tell me ? A. Fell in a hole.
“Q. Do you remember falling in the hole?
(Witness shakes head).
“Q. You do not?
(Witness shakes head).
“Q. Do you remember what you were doing just before you fell?
“A. Catching lightning bugs.
“Q. Catching lightning bugs?
(Witness nods head)”.

Plaintiff was then questioned by plaintiff’s attorney as follows:

DIRECT EXAMINATION BY MR. SILKS
“Q. Would you state your name, please ?
“A. Sammy Howard Chard.
“Q. How old are you, Sam? A. Nine.
“Q. How old were you when you had your accident? Do you know?
“A. Six.
“Q. Do you know what it is to tell the truth ? Do ■ you know what happens to you if you don’t tell the truth?
“A. Go to jail.
“Q. You are going to tell the truth, aren’t you?
(Witness nods head).
“Q. Do you remember hurting your arm?
(Witness shakes head).
“Q. You don’t remember?
(Witness shakes head).
“Q. Do you know where you were when you did hurt your arm?
“A. In a hole.
“Q. Do you know how you got in the hole? A. No.
“Q. Do you know what you were doing right before you got in the hole? A. Trying to catch lightning bugs.
“Q. Do you know where you were at the time, Sam, do you know where, whose home, or anything like that?
“A. At my aunt’s.
“Q. Did you know whether or not there was a ditch or embankment or a drainage ditch of any kind where you fell?
“A. No.
“Q. You didn’t know that before you fell? A. No.
“Q. Had you ever seen this ditch or anything like it there before? A. No.
“MR. SILKS : I think that’s all”.

As a result of the fall, plaintiff suffered a broken arm. No issue or controversy is before us as to the injuries and hence we shall not mention them any further.

Plaintiff says that since he had the verdict and we are reviewing the evidence of the court in ordering judgment for defendant, we must consider the evidence in the light most favorable to plaintiff and give him the benefit of all reasonable inferences from that evidence. Layton v. Palmer, Mo., 309 S.W.2d 561, 564, 66 A.L.R.2d 1242. We agree that such is the rule. However, plaintiff carries the burden of proof and there must be some substantial evidence covering the essential elements of proponent’s case, else it should not be submitted to the jury.

Unless the evidence shows that plaintiff fell into the cut or down the embankment made by Clarkson there is no liability and the court rightly set aside the verdict and entered judgment for the defendant. If plaintiff entered upon the area of the cut and at the time he was either a trespasser or even a “mere licensee”, then the court erred in giving Instruction No. 1, since it charged defendant with the duty to exercise ordinary care. It was held in Glaser v. Rothschild, Mo., 120 S.W. 1, 3, 22 L.R.A.,N.S., 1045, that leave and license “bestows no right to care”. In Gilliland v. Bondurant et al., 332 Mo. 881, 59 S.W.2d 679, plaintiff, when injured, was a visitor inspecting defendant’s bakery. The court said:

“Ordinarily, one who because of his own inclination goes into an industrial plant merely to observe its operation, to satisfy his own curiosity, or to learn how it operates solely for his own benefit, is a licensee only, regardless of whether he wanders around by himself or is, through the owner’s courtesy, furnished a guide. Under those circumstances, it seems to be plain that, unless some further duty is imposed by statute, the only duty of the owner is that he must not willfully or wantonly injure him, or knowingly let him go into a hidden peril, or otherwise, by an affirmative negligent act, injure him after his presence is or should be discovered in a position of danger. He owes him no affirmative duty of care to protect him”.

This quotation was set forth, adopted and approved by the Supreme Court En Banc in Anderson v. Cinnamon et al., 365 Mo. 304, 282 S.W.2d 445, 448, 55 A.L.R.2d 516, and again in Patterson, Jr. etc. v. Gibson, Mo., 287 S.W.2d 853, 856.

Plaintiff strongly relies upon and directs our attention to the case of Dutton et ux. v. City of Independence, 227 Mo.App. 275, 50 S.W.2d 161, 164. In that case the City constructed a culvert across one of its streets which was a public thoroughfare. The end of the culvert extended onto private property but from its top there was a precipitous drop of 7 feet to the bed of the stream. Plaintiff’s son, a child of 4J4 years, fell from the top of the culvert to the bed of the stream, sustained a fractured skull and died as a result. A recovery by plaintiff was affirmed on appeal. Two material differences in this case from our case are immediately apparent. First the evidence is overwhelming and undisputed that the child fell from defendant’s culvert top. Second, the street where the culvert was located was open to the public and neither the street nor the culvert was in the process of construction. Under such circumstances the child’s status was more than that of a trespasser or mere licensee. In our case plaintiff’s counsel seeks to relieve plaintiff from the responsibility of being a trespasser or mere licensee by asserting that the child fell from the aunt’s property into the cut and therefore never did voluntarily or actually enter upon the Clarkson premises prior to the fall. There is no proof of this fact and we are not impressed by that speculation.

There is no direct testimony or evidence that plaintiff’s injuries were caused by a fall onto or in the cut or embankment made by the Clarkson Construction Company. The only eyewitness to the fall was plaintiff himself. In his testimony, responsive to both the court and to his counsel’s inquiries, he said he was in his aunt’s backyard “trying to catch lightning bugs”. He said he did not know whether there was a ditch or embankment where he fell, that he fell in a hole, but did not remember how he got into it. There was testimony that this area was wooded, but the aunt’s property had been cleared. The other children were in the yard and also playing. They went to the house and reported that Sammy was hurt. Apparently Sammy also picked himself up and returned to the house. It is questionable if a six year old child fell into or down a ten foot embankment and suffered a broken arm, if he would instantly get up and climb the embankment and return to the house. No witness testified as to any marks within the embankment indicating a spot where plaintiff might have fallen.

A case can be made on circumstantial evidence. It has frequently been stated that the facts and circumstances must be such that the necessary facts to support a verdict may be inferred and must reasonably follow, and that the evidence must exclude guesswork, conjecture and speculation as to the existence of the essential facts. Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31, 34; Lappin v. Prebe et al., 345 Mo. 68, 131 S.W.2d 511, 514.

While it is not in this state required that the circumstantial evidence proof rise to a degree of certainty which will exclude every other reasonable conclusion, it is, nevertheless, required that the proof should have such a tendency since the force and effect of circumstantial evidence depends upon its incapability of explanation or solution upon any other supposition. The rule as just stated has been declared by our courts many times. In Berry v. Harmon, Mo., 323 S.W.2d 691, 695, the court said:

“There can be no objection to one’s ■ . establishing negligence and a cause of ■ action by circumstantial evidence: ‘Of course facts essential to a recovery may be proved by circumstantial evidence, but the shown circumstances must be such that the necessary facts may be inferred therefrom and they must reasonably follow. The evidence must “exclude guesswork, conjecture, and speculation as to the existence of the necessary facts” ’ ”.

The Supreme Court En Banc in Frazier v. Ford Motor Co, 365 Mo. 62, 276 S.W.2d 95, 100, 103, said it this way:

“In specific negligence cases turning on circumstantial evidence the proof should establish the desired inference with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn, (citing cases)”.

We are unable to conclude from this testimony that plaintiff fell in the i ut or down the embankment. To reach sucn a conclusion we believe any trier of the facts would have to resort to surmise, guesswork or speculation. It follows that plaintiff has not sustained the burden of proof resting upon him to show that he fell on the Clark-son premises. This being so, the trial court did not err in setting aside the jury verdict and entering judgment for defendant. Our ruling on this point determines the appeal and makes it unnecessary to pursue further the interesting question as to whether plaintiff (if he fell on the Clarkson premises) was a trespasser, a mere licensee or an invitee and the degree of care which would have then been owed to him.

The judgment is affirmed.

SPERRY, C, concurs.

PER CURIAM.

The foregoing opinion of MAUGH-MER, C, is adopted as the opinion of the Court.

All concur.


author: ■ CROSS, Judge.

text:
    KANSAS CITY, Missouri, Respondent, v. Billy G. ASBY, Appellant.
    No. 23932.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.
    Dwight Beals, Kansas City, for appellant.
    George C. Denney, Asst. City Counselor, Kansas City, for respondent.
   ■ CROSS, Judge.

On March 20, 1963, the recital of a judgment was entered by the Municipal Court of Kansas City, Missouri, purportedly convicting appellant Billy G. Asby of violating a traffic ordinance of that city. Upon appeal to the circuit court a trial to that court without a jury also resulted in what purports to be a judgment of conviction. Asby now appeals to this court.

The respondent city initiated this proceeding on the complaint of a police officer. The form used by the officer in preparing his complaint is entitled “Missouri Uniform Traffic Ticket” and is in conformity with form No. 37.1162 which the Supreme Court has promulgated for suggested use in municipal and traffic court cases. This form has a space for use by an officer in making a complaint against an alleged traffic offender, containing the printed words, “Above complaint is true as I verily believe”, followed by a blank line for the officer’s signature. The form contains an additional space to be used by the city counselor or his assistant in preparing an information, containing the words “On information undersigned prosecutor complains and informs court that above facts .are true as he verily believes”, followed by a blank line for signature by the city counselor or his assistant. The traffic ticket in this case bears the signature of the police officer in the space for attesting the truth of a complaint. There is no signature by the city counselor or his assistant in the space provided for execution of an information. As a consequence, the traffic ticket which was executed as a complaint and filed in municipal court does not amount to an “information” as that term is understood under general law and contemplated by the ordinances of Kansas City.

Appellant’s brief contains a single point in which he complains that “the information (complaint) does not state facts sufficient to constitute an offense and as such would support a judgment of guilty”. Concerning this assignment we first note that appellant’s reference to the officer’s complaint as an “information” is incorrect. We next observe that there will be no necessity for considering or determining the specific question raised by appellant. Our decision will rest upon a plain and fundamental error disclosed by examination of the record, to-wit, that the entire proceeding presently reviewed is invalid and without effect, for reasons to appear.

As a general rule, an action for violation of a city ordinance must be commenced and conducted in the manner prescribed by the city’s organic law and validly enacted ordinances. It is stated in Mc-Quillin’s “Municipal Corporations”, Vol. 9, Section 27.08, page S67, that: “The mode of beginning the proceedings, whether by summons, warrant, arrest, affidavit, or complaint or information, verified by a named officer or a private citizen, of course, is to be directed by the applicable local law”. Further, it is provided by Rule 37.46 of the Missouri Rules of Practice and Procedure in Municipal and Traffic Courts, V.A.M.R., in part, as follows: “In Traffic Cases, the complaint or information and summons shall be in the form, known as the ‘Uniform Traffic Ticket’ substantially the same as set out in Rule 37.1162, such form to be used as is applicable and in accord with the law of the particular jurisdiction”. (Emphasis supplied.)

In prescribing the duties of the city counselor it is provided by Section 35 of Article V of the Administrative Code of Kansas City, same being Ordinance No. 21,000, that “The city counselor or an assistant city counselor shall prepare all charges and complaints against parties for violations of city ordinances, and shall appear daily before the municipal court to prosecute all offenders against the laws and ordinances of this city”.

Section 35.100 of the city’s revised ordinances prescribes the procedure to be followed in cases before the municipal court, as follows: “All cases triable before the court shall be proceeded with in the same manner as trials for misdemeanors before justices of the peace, magistrates .or their legal successors, except where otherwise specifically provided in this chapter or by ordinance”. We interpret this ordinance to mean that the procedure in cases triable before the municipal court shall be the same as the law has prescribed for trials of misdemeanor cases before the named judicial officers.

Section 543.020 V.A.M.S. requires that “Prosecutions before magistrates for misdemeanors shall be by information * * * ”. Section 543.030 V.A.M.S. directs that “All such informations shall be made by the prosecuting attorney * * * and shall be filed * * * before the party or parties accused shall be put upon their trial * * * ”. It has been held by this court that a prosecution for misdemeanor is not commenced by the filing of a complaint, but begins only upon the filing of an information by the prosecuting attorney. City of Pilot Grove v. McCormick, 56 Mo. App. 530.

Therefore, we conclude that the clear effect of Section 35.100 of the city’s ordinances, when read in connection with the quoted statutory provisions, is, in paraphrase, to provide that prosecutions for ordinance violations must be commenced by the filing of an information made (signed) by the public prosecuting officer, to-wit, the city counselor or his assistant. We find no provision in the charter or ordinances of the city authorizing the commencement of such actions by filing the complaint of a peace officer or a private citizen.

We rule that no judicial proceedings were commenced by the filing of the officer’s complaint against appellant. Consequently, the matters presented for our review are acts done in a court which had no jurisdiction over appellant’s person or of any intended cause of action. Those proceedings, inclusive of the alleged judgment of conviction, are null and void and without legal effect. See 42 C.J.S. Indictments and Informations § 1, p. 833.

This decision is not without precedent. In the case of City of Kansas v. O’Connor, 36 Mo.App. 594, decided in 1889, this court considered the identical question we have presently determined and reached the same conclusions we have expressed. In that early case, Judge Smith of this court said:

“We think the construction which we have placed upon the provisions of said section 893, of the ordinances of said city, has the sanction of a wise public policy.
“It seems to us, in a case of this kind where the penalty may be a fine of five hundred dollars, if there is a doubt entertained as to whether the prosecution should be upon the bare oath of ‘any person,’ or upon the information of the law officer of the municipality acting upon his official responsibility, it should be solved in favor of the latter course of procedure.
“As was said by Mr. Commissioner Phillips in State v. Kelm already cited: ‘If reasons were necessary to justify the conclusions reached in this opinion, they are numerous why no such right should be intrusted to a private citizen to inaugurate a proceeding like this upon his own affidavit.
“ ‘The injustice and abuse of such process left at the caprice, spite, or malice of one not under the sanction of official duty, is apparent.’ ”

The judgment of the circuit court is reversed and the proceeding is dismissed.

All concur.


text:
    Donna M. DERRINGER, Plaintiff-Appellant, v. Edward L. DERRINGER, Defendant-Respondent.
    No. 23947.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Hammond C. Woods, Kansas City, for appellant.
    W. B. Ennis, Ennis, Browne & Martin, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is an appeal from a judgment order modifying a divorce decree with respect to custody of a minor child. Appellant correctly points out that in this state a divorce action is a statutory suit at law and not in equity, but it does partake of the nature of a suit in equity and is considered de novo on appeal. It is our duty to consider, weigh and evaluate all the competent evidence tending to prove or refute the essential factual issues and reach our own findings. In doing so, we are not bound by the trial court’s findings, but we do accord those findings deference, especially as to the credibility of the witnesses who appeared before the trial court. May v. May, Mo.App., 294 S.W.2d 627; Eikermann v. Eikermann, Mo.App., 283 S.W.2d 391; Clark v. Clark, Mo.App., 306 S.W.2d 641, 646.

Plaintiff, Donna Mae Derringer, was granted an absolute divorce from Edward Lee Derringer on October 16, 1962, by the Circuit Court of Jackson County, Missouri. It was a default decree with personal service on defendant. By this judgment plaintiff was awarded “the care, custody and control” of the minor child Edward Lee Derringer, Jr., who had been born on November 28, 1960, with defendant having “the right and privilege of seeing and visiting said minor child at all reasonable times and places”.

On March 29, 1963, defendant filed his motion for modification, praying that the mother be divested of the “care, custody and control” of the child and that same be awarded to the defendant father. A hearing was held on June 24, 1963, and on the same date the court entered its judgment modifying the original decree of divorce as follows:

“ * * * the care, custody and control of the minor child, Edward L. Derringer, Jr. * * * is hereby given to the defendant, to live with his parents, Daniel and Nelldean Derringer, at 7904 Leeds Road”.

The mother appellant has dully perfected an appeal. She asserts that (1) “The Court erred * * * with reference to the custody of the minor child because such modification is against the law”, and (2) “The Court erred in modifying the decree because the decree penalizes the minor child * * * for the alleged indiscretions of the plaintiff in violation of the policy of the courts of Missouri * * *

Respondent has moved to dismiss the appeal for alleged noncompliance with Rule 83.05(c), V.A.M.R. which requires a “fair and concise statement of the facts”. We overrule the motion and shall consider the appeal on its merits.

We note that the child Edward, Jr. was not quite two years old when his parents were divorced, was 28 months of age when the motion to modify was filed and 31 months old when the judgment of modification was entered. The law is clear that only matters which have happened since the divorce are competent to sustain a motion to modify. In Hawkins v. Thompson, Mo.App., 210 S.W.2d 747, 752, the court said:

“Matters which happened before the divorce decree or before the hearing on the first motion to modify are res judicata and the court should be concerned only with the question whether since the rendition of those decrees there has been such a change in conditions as to materially effect the welfare of the child. As always the welfare of the child is the first and supreme consideration’’’. (Italics added.)

See also Brake v. Brake, Mo.App., 244 S.W.2d 786; Paxton v. Paxton, Mo.App., 319 S.W.2d 280.

We summarize the evidence presented, keeping in mind that there must be a showing of changed conditions since the original decree and never forgetting that the personal welfare of the child is the paramount question to be answered.

Six witnesses were offered for the father movant and respondent here. Mr. Derringer himself testified that he was 24 years of age, had been employed for four years as cashier-bookkeeper for an A & P Food Store, and that he resided with his parents in Kansas City, Missouri. He said his father and mother were respectively, aged 46 and 41 years. He described their home as a “two-bedroom home, large front room, living room, dining room, kitchen, breezeway, garage and full basement”, with himself and his parents the only occupants. Mr. Derringer said that in the latter part of January, 1963, a Mrs. William Wayne Hoover telephoned to him and said that her husband was living with Donna (Mrs. Derringer) at 1928 Norton Street, Independence, Missouri. There was no objection to this testimony. On January 31, Mr. Derringer said he “got off work at 10:00 o’clock. I watched this place. His car was parked in the back and was not moved all evening. I went back home. I was over there about 45 minutes, and there was no lights on in the apartment, and later on that evening I went back over, his car was still there, and so I had — I didn’t know who to get for a witness, so I stopped a patrolman and I got a statement from him that his car was parked there and he identified the license and checked it out through the bureau and it was his car. And the next morning I took my mother, went back over about 6:00 o’clock and it was about 7:15 she came out of the house, went across the street and took the boy over to the baby sitter and she came back, and he was with her and they came around the house and got in his car”. He said her apartment was a one-room kitchenette, with private bath, and a divan which was convertible into a bed. It was Mr. Derringer’s testimony that on the following Saturday night, his folks were called to go to his former wife’s apartment, having been advised that she had tried to commit suicide. It seems that Mrs. Derringer had taken tranquilizer pills and kept calling for William Wayne Hoover.

About January 24, Mrs. Derringer moved to 24th and Hardesty Streets. Mr. Hoover lived at or near the same address. Derringer went there one day to “pick up the boy” and Hoover came out and told him to leave. On another occasion Hoover called Derringer at his place of work and told him if “I didn’t leave her alone he would stomp me good”. Derringer said Hoover’s car was parked near Mrs. Derringer’s apartment night after night.

Mary Lou Koch, former wife of Mr. Hoover, said her husband brought home a letter written by Mrs. Derringer saying she was going to commit suicide if “she couldn’t have Wayne”.

Mrs. Alice Riggins, owner of the Norton Street property, testified that she usually left for work at about 6:00 or 6:30 a. m. and on occasions had seen Hoover’s car parked there when she left for work.

Mr. William Shinn resided at the Norton Street address when Mrs. Derringer lived there. He saw Mr. Hoover there on numerous occasions at various hours of the night and early in the mornings. He said he called Hoover when Mrs. Derringer was calling for him after she had taken the tranquilizers and that Mr. Hoover came over and took Mrs. Derringer for a walk.

Mr. and Mrs. Daniel Derringer, paternal grandparents with whom the child was to live under the modification order, both testified. They expressed willingness to keep the boy and both agreed and were quite willing for Mrs. Derringer to quit working and care for the grandchild. Mr. Derringer is a long time employee of the Kansas City Transit Company, Inc. He works as a bus operator.

The plaintiff, Donna Derringer, said she began keeping company with Mr. Hoover prior to her divorce; that they both had worked at the same place. In her direct testimony Mrs. Derringer was not questioned about, nor did she offer any explanation or refutation of the charges leveled against her. When opposing counsel asked if she wanted to make any explanations, her lawyer answered she was under no obligation to do so. The Court then indicated that it would inquire into these matters. Thereupon, Mrs. Derringer, in-response to questions from her attorney, denied that “she had been living in open and notorious adultery with Wayne Hoover”. She denied that Hoover had lived with her or stayed all night with her. She said that on one occasion when Hoover’s car was parked near her apartment all night that his car wouldn’t start, but that he drove it away the next morning. She said Hoover took her to work in the mornings. Mrs. Derringer said she was not employed at the time of the trial but was receiving $40 per week unemployment compensation. Her apartment rent was $75 per month. She testified that Hoover’s car was parked near her place at 24th and Hardesty because Hoover had moved close by, and he left his car parked at her place to keep Mr. Derringer “from harrassing me”.

This case is somewhat similar as to both facts and results to the case of Yount v. Yount, 366 S.W.2d 744, 747, 748, 749, decided recently by this court. There the-divorce decree gave child custody to the mother. On the father’s motion to modify, the court gave custody to the paternal grandparents. This court affirmed. We quote from the opinion:

“Appellant testified she met Ladd through her work. She knew he was a married man, * * *. She freely admitted her numerous dates with him. * * * He has stopped at her house often until the early morning hours. He has upon occasion ‘to protect her from her ex-husband’ stayed all night. * * * She asserts nothing improper ever occurred unless the dating, kissing and embracing is so regarded. * * * She stated, ‘A lot of instances Mr. Ladd stays very, very late. He might be there until two or three o’clock in the morning, and he will leave and I have had calls from him as early as four o’clock in the morning, and he said, “Can I come over and have breakfast ?” And he would show up at four-fifteen’.
* * * * * *
“We acknowledge the general rule that the fact a mother is guilty of adultery does not necessarily disqualify her to have custody of her children. The moral unfitness of a mother must have a bearing on the welfare of the child before it can be sufficient to deprive her of her custody. 17A Am.Jur., Divorce and Separation, Sec. 820, p. 16.
ífc í$í
“We think the record justifies the placing of the custody of these four children with the paternal grandmother. We note the father is also a member of that household.
“Whether this custody in the paternal grandmother will be permanent or merely temporary is a matter that can be left safely with the trial judge who will act in accordance with the established rules and the facts as they may be presented to him at some future date. He continues to have full jurisdiction”.

Without further recapitulation of the testimony we believe it shows substantial, credible evidence that Mrs. Derringer indulged in improper behavior with Mr. Hoover, that if he did not spend any all night periods with her he was in the small one-room kitchenette apartment with her and the two and one-half year old boy late at night and before sunup in the morning. These misbehaviors were not even carried out with due privacy. They were apparent to the neighbors and were in the actual presence of the child.

Giving due deference to the conclusions of the trial judge who saw, observed and heard the witnesses, we cannot say that the best interests of the child require that his custody be continued with the mother. There is affirmative testimony, undisputed, that a good home awaits him with his grandparents. No attack was made on the character or behavior of Mr. Derringer. True, he works during the day and someone else must care for the child during' the daytime, but when Mrs. Derringer works, a baby sitter must likewise actually care for the boy. Is it likely that a baby sitter will do this better than this grandmother of 41' years will do it?

We believe the evidence reveals a change in conditions since the divorce was granted. We cannot rule the trial court erred in entering its modification order transferring custody. Such judgment finds support in the evidence and appears to be in the best interests of the minor son of the parties at this time.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: SPERRY, Commissioner. PER CURIAM:

text:
    Roy H. and Gladys CARLSON, Appellants-Plaintiffs, v. John DOE et al. and Mary Roe et al., Respondents-Defendants.
    No. 23970.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Michael C. Boerner, Kansas City, for appellants.
    Compton & Brown, Roy W. Brown, Kansas City, for respondents.
   SPERRY, Commissioner.

Plaintiffs obtained an order granting a temporary injunction against defendants. From an order dissolving the injunction and dismissing the petition, plaintiffs appeal.

Plaintiffs, husband and wife, owned and occupied a residence located at 4710 Woodland Avenue, Kansas City, Missouri. They filed petition alleging their ownership of the above property and that one Robert V. Jacobi was the owner of property located at 1731, 1733 and 1735 Swope Parkway, adjoining plaintiffs’ back yard. Other defendants, designated as John Doe, Mary Roe, et al., were alleged tenants of the Jacobi property. Plaintiffs sought an order temporarily restraining defendants from using plaintiffs’ driveway in rear of their property, which order was issued. Thereafter, plaintiffs dismissed as to Robert V. Jacobi and filed an amended petition wherein they admitted that the driveway mentioned in their original petition existed by reason of an easement dated October 31, 1916. They alleged that there had occurred “an unreasonable and unbearable surcharge or overburden upon the aforesaid easement resulting in great and irreparable damage to the servient tenement owned by plaintiffs”. The amended petition also specifically incorporated by reference “each and every allegation contained in their original petition”.

Eventually, some thirteen young women, minors, entered appearance, as tenants of the Jacobi property, and a guardian ad litem was appointed for them.

Evidence was offered by plaintiffs tending to prove that large numbers of unknown persons, tenants and visitors of and to the Jacobi property had, from time to time, used the driveway, had parked cars therein and blocked it as to others, including plaintiffs; had engaged in loud, raucous parties on the premises; had played radio or T-V music loudly, at all hours of the night, to the distress of plaintiffs and other nearby residents; that such unknown persons had thrown beer cans on plaintiffs’ property, had driven over their back yard, and had parked their cars therein, damaging and ruining their flowers and grass. In short, it appeared from the overwhelming weight of the evidence that plaintiffs have been so disturbed by such conduct as to have lost the enjoyment of their home and property. Police had been called a number of times and had, on several occasions, taken various unknown or unidentified persons in custody at the premises. Such arrests had had no appreciable effect so far as relieving the intolerable conditions described in evidence.

However, there is no substantial evidence tending to prove the identity of the offenders. There is no evidence tending to prove that the various defendants herein are the culprits. The evidence only shows, at most, that such defendants were, at the time of the filing of the petition and of their entry of appearance, tenants of the Jacobi property. It does not appear that they were even tenants at the various times when the acts complained of took place, or that anyone of them participated therein.

Plaintiffs failed to make a submissible case, as against defendants, on any theory.

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.