author: A. P. STONE, Jr., Special Judge. HYDE, Judge

text:
    Carl O. HOFFMANN, Jr., and Mrs. Geraldine St. Denis, Appellants, v. Robert KINEALY, Martin Beffa, Clarence Ax, Rudolph Beuc and Leo Maginn, constituting the Board of Adjustment of the City of St. Louis, Missouri, Respondents.
    No. 50381.
    Supreme Court of Missouri. En Banc.
    May 10, 1965.

      Claude W. McElwee, St. Louis, for appellants.
    Thos. J. Neenan, City Counselor, John J. Fitzgibbon, Thomas F. McGuire, Assoc. City Counselors, St. Louis, for respondents.
   A. P. STONE, Jr., Special Judge.

This is an appeal by Carl O. Hoffmann, Jr., and Mrs. Geraldine St. Denis (herein called relators), the owners of two adjoining lots (frequently referred to as the lots) In the 3100 block of Pennsylvania in the City of St. Louis, from the judgment of the Circuit Court of the City of St. Louis affirming, upon review by certiorari [V.A. M.S. § 89.110], a decision of the board of adjustment sustaining a decision of the building commissioner which denied rela-tors’ application for a certificate of occupancy of the lots for a pre-existing lawful nonconforming use, to wit, for the open storage of lumber, building materials and construction equipment.

The lots have an aggregate width of 521/2 feet, north and south, are 125 feet deep, east and west, and front on the west side of Pennsylvania, a north-south street, in a block bounded on the east by Pennsylvania, on the north by Juniata, on the west by Minnesota, and on the south by Wyoming. An east-west alley runs along the south side of the lots, and a north-south alley runs along their rear. Portions of the block, i. e., (1) that portion in which the lots are located, which is east of the north-south alley and fronts on Pennsylvania, and (2) that portion south of the east-west alley and fronting on Wyoming, are in a “B” two-family dwelling district, while the remainder of the block, i. e., that portion which is west of the north-south alley (and thus on the opposite side of the alley behind the lots) and fronts on Minnesota is in a “J” industrial district and is used for the operation of a planing mill and for open storage of lumber. A small building housing the general offices of Hoffmann Construction Company, relators’ business in connection with which the lots have been used, is located in the “B” two-family dwelling district on the south side of the east-west alley and just across the alley from the lots.

The exhibits presented at the hearing before the board of adjustment, and brought to us with the transcript on appeal, indicate that there are fourteen buildings in the same portion of the block in which the lots are situate, including a tavern on the southwest corner of Pennsylvania and Juniata, one three-family residence, eleven other residences, and at the rear of one residence a building identified on a plat as used for “tractor parts”; ten buildings in that portion of the block south of the east-west alley, including a grocery store on the northwest corner of Pennsylvania and Wyoming, eight residences (all owned by relators), and at the rear of one residence the above-mentioned office building of Hoffmann Construction Company; and that, on the other three corners of the intersection of Pennsylvania and Wyoming, there are two taverns and a cleaning and pressing shop.

Counsel for the city conceded at the hearing before the hoard of adjustment, and the subsequent finding of the board (not here disputed) -was, that the lots were being used at the time of hearing for the open storage of lumber, building materials and construction equipment and that (in the language of the board’s finding) “these premises have been used for this same purpose continuously since the year 1910.” The front end of the lots is “landscaped” with a hedge and shrubbery, and the area used for open storage is enclosed with a high fence.

The first comprehensive zoning ordinance of the City of St. Louis became effective in 1926. On April 25, 1950, numerous sections of the zoning code were amended by Ordinance 45309. Section 5 A 1 of that ordinance provided that “No building or land shall be used for a use other than those permitted in the district in which such premises are located unless . . . such use existed prior to the effective date of this ordinance.” Section 5 B of the same ordinance, insofar as here material, provided that “The use of land within any dwelling district . . . for purposes of open storage . . . which do not conform to the provisions of this ordinance shall be discontinued within six (6) years from the effective date of this ordinance.”

About six years and three months later, to wit, on July 24, 1956, Ordinance 48007 was enacted, amending that portion of Section 5 B of Ordinance 45309, with which we are here concerned, to read as follows: “The use of land within any dwelling district for the purpose of open storage is hereby prohibited.”

On April 12, 1961, Ordinance 50547 was approved amending Ordinance 45309, as amended, by repealing several sections, including Section 5 thereof, and enacting in lieu thereof several new sections. However, Section 5 A 1 as it appeared in Ordinance 45309 and Section 5 B as it appeared in Ordinance 48007 were carried forward verbatim in Ordinance 50547.

In May 1961 the provisions of Sections 5 A 1 and 5 B were codified in Sections 903.010 and 903.030 of “The Zoning Code” as a part of “The Revised Code of the City of St. Louis, 1960,” in the following language:

Section 903.010. “No building or land shall be used for a use other than those permitted in the district in which such premises are located unless (a) such use is permitted by other provisions of this Chapter or by Chapter 915 (Use, Height, and Area Exceptions) or Chapter 916 (Board of Adjustment); or (b) such use existed prior to April 25, 1950.”

Section 903.030. “The use of land within any dwelling district for the purpose of open storage is prohibited.”

After relators had been notified on December 7, 1962, to cease the use of the lots for open storage, they filed with the building commissioner on December 21, 1962, an application for a certificate of occupancy of the lots for a pre-existing lawful nonconforming use, to wit, for the open storage of lumber, building materials and construction equipment. From the decision of the building commissioner denying that application, relators appealed to the board of adjustment which, after a public hearing and the taking of evidence, sustained the decision of the building commissioner. Upon review by certiorari, the circuit court accorded the parties a trial on the merits, considered the full record of prior proceedings including exhibits, and affirmed the findings and decision of the board of adjustment.

Relators’ petition in the circuit court, upon which the writ of certiorari was issued, charged that Section 903.030 of the zoning code was unconstitutional, null and void and was of no effect as to relators’ lots because, by prohibiting continuance of the pre-existing lawful nonconforming use of the lots, said section would impair, restrict and deprive relators of vested property fights and thereby would take and damage relators’ private property for public use without just compensation in violation of Article 1, Section 26, Missouri'Constitution of 1945, V.A.M.S. Likewise, that is the essence of relators’ complaint upon this appeal.

Respondents’ position is that, under the statutory grant of police power in municipal zoning and planning [V.A.M.S. §§ 89.020 and 89.040], the city was empowered to enact on April 25, 1950, Section 5 B of Ordinance 45309, a so-called “amortization” or “toleration” provision which required discontinuance within six years thereafter of the nonconforming use of land within any dwelling district for purposes of open storage, and that, such six-year “amortization” or “toleration” period having run in April 1956, the subsequent absolute prohibition of said nonconforming use of land by Ordinance 48007 enacted on July 24, 1956, thereafter reenacted by Ordinance 50547 on April 12, 1961, and codified in Section 903.-030, was valid.

Relators reply that their right to continue their pre-existing lawful nonconforming use actually was taken, notwithstanding the fact that such taking was delayed, and that the constitutional interdiction against the taking of private property for public use without just compensation [Art. 1, Sec. 26, Mo. Const. of 1945] is absolute and subject to no exception as to a delayed or postponed taking. There has been and is no suggestion that relators’ use of their lots constituted a nuisance.

The parties thus present, as a matter of first impression in the appellate courts of this state, the constitutionality of the “amortization” or “toleration” technique of eliminating pre-existing lawful nonconforming uses. It may be observed preliminarily that, although the six-year amortization provision in Section 5 B of Ordinance 45309 enacted in 1950 was not carried forward in Ordinance 48007 enacted in 1956 after the six-year term had run or in the 1960 codification in effect when this proceeding was instituted, we are of the opinion that the validity of Section 903.030 of the 1960 codification should be determined in the light of the 1950 ordinance. 82 C.J.S. Statutes § 386, p. 914; Powell v. Utz, D.C.Wash., 87 F.Supp. 811, 815(6). See State v. Ward, 328 Mo. 658, 668-669, 40 S.W.2d 1074, 1078 (10, 11); Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 4, 11-13, 17 S.Ct. 7, 8, 9, 41 L.Ed. 327, 328, 332. So holding, we proceed to the basic question of constitutionality.

Of course, it has long been settled that a comprehensive zoning ordinance operating prospectively, which has a substantial relationship to the public health, safety, morals or general welfare and is not unreasonable or discriminatory, is valid as a proper exercise of the police power. State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720, error dismissed 278 U.S. 662, 49 S.Ct. 17, 73 L.Ed. 569; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. This is so even though, in restricting future uses, any such ordinance may impose hardship and inflict economic loss upon some property owners, for it is recognized that “[e]very valid exercise of the police power is apt to affect the property of some one adversely.” Flora Realty & Inv. Co. v. City of Ladue, 362 Mo. 1025, 1040, 246 S.W.2d 771, 779, appeal dismissed 344 U.S. 802, 73 S.Ct. 41, 97 L.Ed. 626; Downing v. City of Joplin, Mo., 312 S.W.2d 81, 85.

In earlier days of zoning legislation, it generally was recognized and conceded that termination of pre-existing lawful nonconforming uses would be unconstitutional. The expressions by way of dicta in our cases suggest that this has been taken for granted in Missouri. In Women’s Christian Ass’n. of Kansas City v. Brown, 354 Mo. 700, 709-710, 190 S.W.2d 900, 906, involving an attempted change of nonconforming use from a riding academy to a dance hall, this court said that: “Nonconforming uses, existing at the commencement of zoning, are of course permitted to continue as vested rights. Zoning Law and Practice, Smith, § 85.” (All emphasis herein is ours.) The Enabling Act, under which the applicable Zoning Order of Jackson County had been enacted, specifically provided that “[t]he powers by this act given shall not be exercised so as to deprive the owner, lessee or tenant, of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted . . . ” [Laws of 1941, p. 485], but that statute was not cited in connection with the quoted statement, which was immediately followed by this illuminating commentary upon the theory of zoning: “ ‘Within a period of another twenty years, a large number of such “nonconforming” uses will have disappeared, either through the necessity of enlargement and expansion which invariably is forbidden or limited by ordinance, or by the owners realizing that it is unwise and uneconomic to be located in a district which probably is not suitable for the nonconforming purpose, or by obsolescence, destruction by fire or by the elements or similar inability to be used; so that many of these nonconforming uses will “fade out,” with a resulting substantial and definite benefit to all communities.’ The Law of Zoning, Metzen-baum, p. 288.”

When the same factual situation was presented a second time in Brown v. Gambrel, 358 Mo. 192, 198, 213 S.W.2d 931, 935(1), this court said, with respect to the prior lawful use of the building as a public stable or riding academy, that “[s]uch use of such building was a priorly vested right of which the county by the institution (April 26, 1943) of its zoning plan could not deprive appellants. Zoning Law and Practice, Smith, Sec. 85, p. 108; Women’s Christian Ass’n. of Kansas City v. Brown, supra; In re Botz, 236 Mo.App. 566, 159 S.W.2d 367; Laws of Missouri, 1941, page 485

In State ex rel. Capps v. Bruns, Mo.App., 353 S.W.2d 829, relator sought a writ of mandamus directing issuance to him of a license to operate a junk yard, a pre-existing nonconforming use of his land. The Kansas City Court of Appeals wrote: “‘The general rule is that nonconforming structures and uses existing at the time of the effective date of a zoning ordinance or restriction may be continued’. [8] McQuillin, Municipal Corporations, 3d Ed., page 464. Such use and the operation of such a business was continuance of a vested right of which the city could not deprive plaintiff. See Brown et al v. Gambrel et al, 358 Mo. 192, 213 S.W.2d 931, 935. In addition, General Ordinance 3162, Sec. 11-21, City of St. Joseph, squarely authorizes such continuing nonconforming use.” 353 S.W.2d at 830. Again, the court pointed out: “In our case we have an applicant who for twenty years has conducted a junk yard at this particular location. He has a vested right which zoning ordinances could not abrogate.” 353 S.W.2d at 831. Later in the opinion, we find this gratuitous observation, without discussion or citation of authority: “Many [?] ordinances limit the life of nonconforming uses to a period of years and such ordinances have been approved. There are apparently no such ‘tolerance period’ ordinances involved in our case.” 353 S.W.2d at 832.

In considering their appellate jurisdiction in Bartholomew v. Board of Zoning Adjustment, Mo.App., 307 S.W.2d 730, 732, the Kansas City Court of Appeals stated: “Plaintiffs do not question the general constitutionality of the zoning law. It is rather their position that under the facts here, they proved a lawful nonconforming use amounting to a vested right, which both constitutions will preserve. If the evidence discloses such proof this court will protect such right and defendants do not contend otherwise” These statements from Bartholomew, supra, were quoted with approval by this court in a discussion of appellate jurisdiction in Dunbar v. Board of Zoning Adjustment, Mo., 380 S.W.2d 442, 444, where property owners were complaining of deprivation of “prior vested property rights.”

So much for the dicta in this state. Obviously, none of the cited Missouri cases reached or ruled the basic question before us here, but they indicate, so we think, that heretofore the validity of pre-existing lawful nonconforming uses has been recognized in this jurisdiction, as elsewhere.

Certainly, the spirit of zoning ordinances always has been and still is to diminish and decrease nonconforming uses [Brown v. Gambrel, supra, 358 Mo. at 199, 213 S.W.2d at 935-936; 8 McQuillin, Municipal Corporations (3d Ed.), § 25.183, p. 473], and to that end municipalities have employed various approved regulatory methods such as prohibiting the resumption of a nonconforming use after its abandonment or discontinuance, prohibiting the rebuilding or alteration of nonconforming structures or structures occupied for nonconforming uses, and prohibiting or rigidly restricting a change from one nonconforming use to another. 2 Rathkopf, The Law of Zoning and Planning, Ch. 62, pp. 62-2 to 62-4 (1960). Even so, pre-existing lawful nonconforming uses have not faded out or eliminated themselves as quickly as had been anticipated, so zoning zealots have been casting about for other methods or tech-ñiques to hasten the elimination of nonconforming uses. In so doing, only infrequent use has been made of the power of eminent domain, primarily because of the expense of compensating damaged property owners, but increasing emphasis has been placed upon the “amortization” or “tolerance” technique which conveniently bypasses the troublesome element of compensation.

“Stated in its simplest terms, amortization contemplates the compulsory termination of a non-conformity at the expiration of a specified period of time, which period is equaled (sic) to the useful economic life of the non-conformity.” Katarincic, Elimination of Non-Conforming Uses, Buildings, and Structures by Amortization — Concept v. Law, 2 Duquesne Univ.L.Rev. 1. “The basic idea is to determine the remaining normal useful life of a pre-existing nonconforming use. The owner is then allowed to continue his use for this period and at the end must either conform or eliminate it.” Note, 44 Cornell L.Q. 450, 453 (1959). Courts approving the amortization technique as a valid exercise of the police power rationalize their holdings in this fashion: “The distinction between an ordinance restricting future uses and one requiring the termination of present uses within a reasonable period of time is merely one of degree, and constitutionality depends on the relative importance to be given to the public gain and to the private loss. Zoning as it affects every piece of property is to some extent retroactive in that it applies to property already owned at the time of the effective date of the ordinance. The elimination of existing uses within a reasonable time does not amount to a taking of property nor does it necessarily restrict the use of property so that it cannot be used for any reasonable purpose. Use of a reasonable amortization scheme provides an equitable means of reconciliation of the conflicting interests in satisfaction of due process requirements. As a method of eliminating existing nonconforming uses it allows the owner of the nonconforming use, by affording an opportunity to make new plans, at least partially to offset any loss he might suffer. . If the amortization period is reasonable the loss to the owner may be small when compared with the benefit to the public.” City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 44; Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363, 368.

Several cases in other jurisdictions have approved the termination of pre-existing nonconforming uses by the amortization technique. However, there are a number of decisions to the opposite effect, and it may be fairly said that there is “a decided lack of accord” in this area. 58 Am.Jur., Zoning, § 148 (1964-65 Supp., p. 146); annotation 42 A.L.R.2d 1146.

With respect to some of the cases (listed in footnote 3) in which the amortization technique has been employed, brief comments may not be inappropriate. As other courts have observed, the opinions in State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613, and State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752, 123 So. 314, exhibit “a confusion between the objects of zoning and nuisance regulation” [Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, 21; James v. City of Greenville, 227 S.C. 565, 88 S.E.2d 661, 671], and certainly the same properly may be said with respect to Livingston Rock & Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 272 P.2d 4, where, under a rezoning ordinance providing an “automatic exception” to permit continuance of certain nonconforming uses but authorizing the revocation of any such exception where that could be done without impairment of “constitutional rights,” it was found by the planning commission that “ ‘use of the property with a cement batching plant thereon’ was ‘being exercised in such a manner as to be detrimental to public health, and so as to be a nuisance.’ ” 272 P.2d at 7. Referring to the Dema Realty Company cases, supra, one writer has offered this caustic criticism: “The Louisiana decisions in this field . „ sound more like Cossack interpretations of Muscovite ukases than utterances of a court operating under the benign provisions of the Magna Carta.” Fratcher, Constitutional Law—Zoning Ordinances Prohibiting Repair of Existing Structures, 35 Mich.L.Rev. 642, 644 (1937). And in Grant v. Mayor and City Council of Baltimore, supra, 129 A.2d at 367, it was frankly conceded that the opinions in the Dema Realty Company cases, supra, and in Standard Oil Co. v. City of Tallahassee, 5 Cir., 183 F.2d 410, were “not particularly persuasive in their reasoning,” although the court was “impressed” with the decisions in Livingston Rock & Gravel Co. v. County of Los Angeles, supra, and City of Los Angeles v. Gage, supra. With respect to Standard Oil Co. v. City of Tallahassee, supra, a perspicacious student has pointed out that: “Discontinuance was required in spite of the fact that many ‘of the residences [in the area] are far below standard and many of them shacks. . . .’ [87 F.Supp. 145, 149 (D.C.Fla.1949)] Thus, it would seem, the court was sanctioning the use of ‘amortization’ provisions to redevelop an unsightly area.” Note, 44 Cornell L.Q. 450, 455 (1959).

In Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42, frequently cited by advocates of the amortization technique, only two judges concurred in the principal opinion while the additional two included in the bare majority of four concurred in result “upon the principles stated in People v. Miller, 304 N.Y. 105, 108, 109, 106 N.E.2d 34, 35, 36.” 176 N.Y.S.2d at 616, 152 N.E.2d at 54. The “principles stated” in People v. Miller, supra, were that “nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance” [106 N.E.2d at 35(1)] ; that, however, “the enforcement of a zoning regulation against a prior nonconforming use will be sustained where the resulting loss to the owner is relatively slight and insubstantial” [106 N.E.2d at 35(3)] ; that the principle permitting continuance of pre-existing nonconforming uses was “clearly inapplicable to a purely incidental use of property for recreational or amusement purposes only”; and that “an inconsequential use as that here involved — the harboring of pigeons as a hobby — [did] not amount to a ‘vested right’ ” protected against termination by an amended zoning ordinance. 106 N.E.2d at 36. The author of a comprehensive note on Harbison v. City of Buffalo, supra, appropriately suggests that, since two of the four judges constituting the majority in that case concurred only in result on the basis of People v. Miller, supra, “it is doubtful if the Court of Appeals as a whole intended to move too far away from that decision and its fundamental principle that a prior nonconforming use can be terminated only where it is insubstantial.” Note, 44 Cornell L.Q. 450, 457.

But, although the holdings in other jurisdictions may, in some instances, be enlightening and persuasive, it is neither our duty nor our inclination to rule a question of first impression in this state simply by counting foreign cases and then falling off the judicial fence on the side on which more cases can be found. Rather, our concern should be and is to determine the basic constitutional right of the matter, as we see it. Property is defined as including not only ownership and possession but also the right of use and enjoyment for lawful purposes. In fact, “[t]he substantial value of property lies in its use.” It follows that: “'[t]he constitutional guaranty of protection for all private property extends equally to the enjoyment and the possession of lands. An arbitrary interference by the government, or by its authority, with the reasonable enjoyment of private lands is a taking of private property without due process of law, which is inhibited by the Constitution.’ Tiedeman’s Limitation of Police Powers, § 122.” Ex parte Davis, 321 Mo. 370, 375, 13 S.W.2d 40, 41. See 1 Lewis, Eminent Domain (3d Ed.), § 65, p. 56.

Counsel for instant respondents would support and justify the amortization provision under consideration as constituting reasonable and permissible regulation of the use of property. Of course, every comprehensive zoning ordinance limits and thereby regulates the use of property prospectively. But we cannot embrace the doctrine espoused by advocates of the amortization technique that there is no material distinction between regulating the future use of property and terminating preexisting lawful nonconforming uses.

The amortization provision under review would terminate and take from instant relators the right to continue a lawful nonconforming use of their lots which has been exercised and enjoyed since 1910—a right of the character to which the courts traditionally have referred as a “vested right.” To our knowledge, no one has, as yet, been so brash as to contend that such a pre-existing lawful nonconforming use properly might be terminated immediately. In fact, the contrary is implicit in the amortization technique itself which would validate a taking presently unconstitutional by the simple expedient of postponing such taking for a “reasonable” time. All of this leads us to suggest, as did the three dissenting justices in Harbison v. City of Buffalo, supra, 152 N.E.2d at 49, that it would be a strange and novel doctrine indeed which would approve a municipality taking private property for public use without compensation if the property was not too valuable and the taking was not too soon, and prompts us to repeat the caveat of Mr. Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322, 326, 28 A.L.R. 1321, that “[w]e are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” In this connection, we note also the terse comment of, Chief Judge Hutcheson dissenting in Standard Oil Co. v. City of Tallahassee, supra, 183 F.2d at 414, “that even in this age of enlightenment the Constitution still protects the citizen against arbitrary and unreasonable action” and that the majority opinion in that case left him “in no doubt” but that “a good general principle, the public interest in zoning, [had] been run into the ground, the tail of legislative confiscation by caprice [had] been permitted to wag the dog of judicial constitutional protection.”

It has been suggested that perhaps some distinction should be made between the termination of pre-existing nonconforming uses of land and the termination of such uses of buildings, and that it might be constitutionally permissible to terminate uses in the first category but not in the second. However, such distinction would be not only illogical but also in utter disregard of the economic realities of modern urban life, for the use of vacant land often is more valuable than the use of buildings. E. g., older buildings frequently are torn down to make the underlying land available for more profitable uses such as used car lots or parking lots. In City of Seattle v. Martin, 54 Wash.2d 541, 342 P.2d 602 (1959), involving an ordinance which limited application of the amortization technique to nonconforming uses of vacant land, defendant’s counsel, in his unavailing plea of unconstitutionality, with understandable cynicism pointed out that: “A watchmaker in a $400.00 building could continue [a pre-existing nonconforming use]. A used car lot or a parking lot with no office would have to stop. If [defendant] had a $100.00 office building perhaps [he] could continue. Such distinctions are not reasonable.” Katarincic, op. cit. supra, at p. 34. And the commentator, Although of the amortization school, observes in the same vein as defendant’s counsel that limitation of the ordinance to nonconforming uses of vacant land “suggests that the ordinance was motivated by aesthetic considerations” and that “[i]t would be difficult to imagine that a use would become any less or more compatible if it takes place in or outside a building.” Katarincic, op. cit. supra, at p. 34.

In a bold, critical student note inspired by City of Seattle v. Martin, supra, the author thought that the decision in that case might “seem mild in view of the facts of the case” and the attitude of some courts as exemplified by the comment of the Supreme Court of Louisiana in State ex rel. Dema Realty Co. v. Jacoby, supra, 123 So. at 317, that “[defendant's drug store is a small one, and it is obvious that one year affords ample time within which to liquidate the business and close it.” Note, 35 Wash.L.Rev. 213, 218 (1960). But, as the author continued, it is important that the courts be aware of the direction in which the amortization technique takes them. “There are small drug stores, small junk yards, and small department stores. ‘Small’ is a relative term, and the generally proposed test of balancing the hardship on the individual with the benefit to the public is capable of extension to bigger businesses and property investments. . . . Might not the test of the Martin case disclose that the public benefit in attracting industry and locating it in a well planned and desirable section of the city outweigh the hardship on the farmer who has to leave — especially if it is only a ‘small’ farm ? . . . Whatever the policy result desired, would it not be better that our court clearly articulate its policy reasoning and at least compensate a property owner for a taking of his rights? ” Note, 35 Wash.L. Rev. at 218-219.

In declining to adopt the suggestion that there may be some valid distinction between the termination of pre-existing lawful nonconforming uses of land and the termination of such uses of buildings, we have not overlooked the discussion in the case of In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, which did not concern the termination of pre-existing lawful nonconforming uses by the amortization technique but which pertained only to a provision of the then effective St. Louis zoning ordinance permitting the owner of a building to change from one pre-existing lawful nonconforming use “to another nonconforming use of the same or a more restricted classification,” if no structural alterations were made. 236 Mo.App. at 574, 159 S.W.2d at 371. That the court, by way of dicta, thought it reasonable that the Board of Aldermen had not seen fit to extend to owners of land the same right to change from one nonconforming use to another is not, to us, persuasive here.

Although the record before us leaves much to be desired by way of detail, it is sufficient for the purposes of this opinion to say that the record adequately shows that instant relators’ use of their lots may not be brushed aside and disregarded as “relatively slight and insubstantial.” Contrast People v. Miller, supra, 106 N.E.2d at 35, 36, involving the harboring of pigeons as a hobby. In our view of the matter, termination of relators’ pre-existing lawful nonconforming use of their lots for the open storage of lumber, building materials and construction equipment would constitute the taking of private property for public use without just compensation in violation of Article 1, Section 26, Missouri Constitution of 1945 — a taking not to be justified as an exercise of the police power which is always subject to, and may never transcend, constitutional rights and limitations. Panhandle Eastern Pipe Line Co. v. State Highway Com’n. of Kansas, 294 U.S. 613, 622, 55 S.Ct. 563, 567, 79 L.Ed. 1090, 1097, rehearing denied 295 U.S. 768, 55 S.Ct. 652, 79 L.Ed. 1709; Women’s Kansas City St. Andrew Soc. v. Kansas City, Mo., 8 Cir., 58 F.2d 593, 598(3); James v. City of Greenville, 227 S.C. 565, 88 S.E.2d 661, 668; Connor v. Township of Chanhassen, 249 Minn. 205, 81 N.W.2d 789, 797(19); 16 C.J.S. Constitutional Law § 196, pp. 946-951.

Accordingly, the judgment of the circuit court is set aside and the cause is remanded with directions to enter judgment ordering respondents, constituting the board of adjustment of the City of St. Louis, to issue, or cause to be issued, to relators a certificate of occupancy for continuance of the preexisting lawful nonconforming use of rela-tors’ lots for the open storage of lumber, building materials and construction equipment.

All concur, except HYDE, J., who dissents in separate dissenting opinion filed.

HYDE, Judge

(dissenting).

I respectfully dissent from the opinion of Stone, Special Judge, herein and state the following views as to the situation involved. All that is involved in this case is whether the City may prohibit open storage on vacant land in residence districts after allowing a six-year period for discontinuance. My view is that this is a reasonable exercise of the police power. It is well established that the test of validity of the exercise of the police power is reasonableness, 11 Am.Jur. 1073 et seq., Constitutional Law, Secs. 302-307; 16 C. J.S. Constitutional Law, § 198, p. 951. All zoning is based on reasonable exercise of the police power; that is, it must have a reasonable relation to public health, safety or welfare.

In the leading case of Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 115, 71 L.Ed. 303, the Court said that zoning and “all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare.” The court pointed out the following reasons for this use of the police power: “[T]he segregation of residential, business and industrial buildings will make it easier to provide fire apparatus suitable for the character and intensity of the development in each section; that it will increase the safety and security of home life, greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections, decrease noise and other conditions which produce or intensify nervous disorders, preserve a more favorable environment in which to rear children.”

The court also stated: “Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise.”

In view of these applicable principles, it does not seem reasonable to say that the existence of a particular use of vacant land when a zoning ordinance is adopted gives the owner a vested right to continue it in perpetuity, especially the right to pile material on vacant ground. The St. Louis Court of Appeals In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, 372, points out sound reasons for making a distinction between land and buildings in permitting a nonconforming use, saying: “A building represents an investment in the improvement of the land upon which it is erected; and if regard were not had for the reasonable protection of such investment, then the ordinance would frequently be confiscatory with respect to its application to particular structures. Not only is a building erected with a view to its adaptation to a specific form of use which is to be made of it, but it is often difficult, if not impossible, to convert it to an entirely different form of use. Consequently, where the building is only adaptable to nonconforming uses, the ordinance grants the special privilege, where no structural alterations are involved, of changing from one nonconforming use to another of the same or a more restricted classification, and also allows the recommencement of a definite nonconforming use which has been previously discontinued. Not so, however, in the case of land, where the owner has made no investment in its improvement, and where, in most instances, he would be expected to suffer no hardship if compelled to conform to the strict letter of the zoning plan with respect to the use to which his land might be subjected.”

The landmark opinion of this Court, State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720, upheld zoning in this state for the first time as a valid exercise of the police power and held the zoning regulations established for the City of St. Louis were not arbitrary and unreasonable. The dissenting opinion therein made the following argument: “The present opinion extends the police power to the destruction of private property and private rights. Under its definition of police power, there is no limit to the taking of property. Under its broad doctrine of police power, the city authorities could take the whole of a person’s property, if it so desired, and that too without a cent of compensation. If the police power authorizes the taking of a part of the property for public use, by the same token, title as well as use of the property could be taken.” This is essentially the same argument made by appellants in this case.

As pointed out in City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 44, as follows: “The distinction between an ordinance restricting future uses and one requiring the termination of present uses within a reasonable period of time is merely one of degree, and constitutionality depends on the relative importance to be given to the public gain and to the private loss. Zoning as it affects every piece of property is to some extent retroactive in that it applies to property already owned at the time of the effective date of the ordinance.”

It is not necessary in this case to consider any amortization principal as to buildings or even land without buildings which has been improved for a particular use such as a paved parking lot. Prohibiting use of vacant unimproved land in residential districts for open storage seems to me to be a very different situation from removal or abandonment of use of buildings or other improvements on land. It requires no destruction or costly conversion of buildings but only finding another location for the stored material and hauling it away. This may be a matter of degree but degree is a material consideration in determining reasonableness of the exercise of police power. High piles of stored material are not conducive to the maintenance or development of a good residential environment not only because they are unsightly but also because they could provide a lurking place for thieves and other criminals and also could attract children who might be injured playing there. See Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623, 627, and cases cited. While such open storage has not been classified as a nuisance, it thus has some of the undesirable characteristics of nuisance in a residential district. See 84 A.L.R.2d 654 and cases cited which have applied nuisance principles to a lawful business not a nuisance per se because of location in a residential district. Therefore, I would hold the ordinance in this case, for termination of open storage in residential districts after six years, a reasonable exercise of the police power and valid.

      . Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, 17-18; People v. Miller, 304 N.Y. 105, 106 N.E.2d 34, 35(1); City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784, 788-789; Katarincic, Elimination of Non-Conforming Uses, Buildings, and Structures by Amortization—Concept v. Law, 2 Duquesne Univ.L.Rev. 1, 2-3 (1963); note, 8 Okla.L.Rev. 239 (1955); note, 9 U.Chi.L.Rev. 477, 483-484 (1942); 2 Rathkopf, The Law of Zoning and Planning, Oh. 62, p. 62-1 (1960).

      . Katarincic, op. cit. supra note 1, at 4-5; note, 44 Cornell L.Q. 450, 453 (1959); comment, 1951 Wis.L.Rev. 685, 696; note, 102 U.Pa.L.Rtev. 91, 93 (1953). See Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363, 365-366.

      . State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613, certio-rari denied 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 612 (termination of a retail grocery store within one year approved in four to three decision); State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752, 123 So. 314 (termination of “a small retail drug store” within one year approved in six to one decision); Standard Oil Co. v. City of Tallahassee, 5 Cir., 183 F.2d 410, certiorari denied 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 647 (discontinuance within ten years of filling station constructed during year prior to enactment of “amortization” ordinance approved in two to one decision); Livingston Rock & Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 272 P.2d 4 (termination of right to operate cement batching plant within thirteen months approved in four to three decision) ; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34 (termination of wholesale and retail plumbing supply business within five years approved); Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42 (discontinuance of junk yard within three years approved in four to three decision); Spurgeon v. Board of Com’rs. of Shawnee County, 181 Kan. 1008, 317 P.2d 798 (discontinuance of automobile wrecking business within two years approved); City of Seattle v. Martin, 54 Wash.2d 541, 342 P.2d 602 (termination within one year of use of vacant lot for repairing construction equipment approved); Grant v. Mayor and City Council of Baltimore, supra, 129 A.2d 363 (removal of billboards, which may be in a somewhat different category, within five years approved) .

      . City of Akron v. Chapman, 160 Ohio St. 382, 116 N.E.2d 697, 42 A.L.R.2d 1140 (discontinuance of junk yard within one year disapproved); James v. City of Greenville, 227 S.C. 565, 88 S.E.2d 661 (discontinuance of trailer court within one year disapproved); City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.2d 759 (discontinuance of automobile wrecking yard within one year disapproved); Concord Township v. Cornog, 9 Pa.Dist.Co.R.2d 79, 48 Mun.L.Rev. 202 (Pa.1954) (removal of free-standing advertising signs within six months disapproved) . See Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14; O’Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401, 9 A.L.R.2d 1031; Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 78 N.W.2d 843, 58 A.L.R.2d 1304; Town of Somers v. Camarco, 308 N.Y. 537, 127 N.E.2d 327.

      . Terrace v. Thompson, 263 U.S. 197, 215, 44 S.Ct. 15, 17-18, 68 L.Ed. 255, 274; City of Akron v. Chapman, supra note 4, 116 N.E.2d at 700; O’Connor v. City of Moscow, supra note 4, 202 P.2d at 404(3); Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 514(1), 19 A.L.R. 1387.

      . City of Akron v. Chapman, supra note 4, 116 N.E.2d at 700; Spann v. City of Dallas, supra note 5, 235 S.W. at 514-515; O’Connor v. City of Moscow, supra note 4, 202 P.2d at 404.

      . Women’s Christian Ass’n. of Kansas City v. Brown, 354 Mo. 700, 709, 190 S.W.2d 900, 906; Brown v. Gambrel, 358 Mo. 192, 213 S.W.2d 931, 935; State ex rel. Capps v. Bruns, Mo.App., 353 S.W.2d 829, 830, 831; Bartholomew v. Board of Zoning Adjustment, Mo.App., 307 S.W.2d 730, 732; Des Jardin v. Town of Greenfield, 262 Wis. 43, 53 N.W.2d 784, 787 (1); Richards v. City of Pontiac, 305 Mich. 666, 9 N.W.2d 885, 888(7).


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    William ROBINSON, Plaintiff-Respondent, v. Elsie WAMPLER, Defendant-Appellant, and Edsel French, Defendant.
    No. 50707.
    Supreme Court of Missouri, Division No. 2.
    May 10, 1965.

      George R. Gerhard, St. Louis, William L. Mason, Jr., Galena, for respondent.
    Walter F. Timm, James E. McDaniel, Barnard, Timm & McDaniel, St. Louis, for Elsie Wampler, defendant-appellant.
   BARRETT, Commissioner.

On August 10, 1962, the plaintiff-respondent, William Robinson, was involved in a collision of motor vehicles on U. S. Highway 67 near Bonne Terre. To recover $68,-050.00 for his personal injuries and losses and $42,650.00 for his wife’s injuries and his consequential losses the respondent Robinson instituted this action in two counts against Edsel French and the appellant Elsie Wampler. French in effect defaulted and the jury returned a verdict against him and in favor of Robinson for $50,000.00 on the first count and $30,000.00 on the second count and this appeal is not concerned with that verdict and judgment. The jury, however, returned a verdict in favor of Elsie Wampler and as to her Robinson filed a motion for a new trial alleging among other grounds that the verdict in her favor was against the weight of the evidence. The trial court sustained the motion for new trial upon the specific ground that the “verdict is against the weight of the evidence” and Mrs. Wampler has appealed and this necessarily is the only phase of the cause with which this court is now concerned.

The essence of the appeal is the contention that the court erred in granting a new trial on the ground that the verdict was against the weight of the evidence “because plaintiff failed to make a submissible case against defendant Wampler.” However, the appellant has complicated consideration of the essential merits of the appeal by two supplemental contentions: (1) that “because plaintiff failed to file a motion for directed verdict at the close of plaintiff’s case or at the close of all the evidence” he voluntarily submitted the issue of fact to the jury and was therefore in no position to request a new trial on the weight of the evidence, and (2), she argues, assuming that there was substantial evidence to support the submission “nevertheless the trial Court abused its discretion in granting plaintiff a new trial because the overwhelming weight of the evidence was in favor of defendant Wampler and against plaintiff.”

The latter argument will be disposed of finally in considering the essential merits of the appeal but in passing it must be noted that in several of the cases relied on “the trial court in sustaining the motion for a new trial did not act upon discretionary grounds.” Wallace v. Whitzel, Mo., 324 S.W.2d 157, 159; Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383.

The first point, founded solely on plaintiff’s failure to move for directed verdicts (RSMo 1959, §§ 510.280, 510.290, V.A. M.S.), while indeed novel and at first glance caused some concern has only served to detract from the principal issue and it is not necessary to consider the contention at length. In the first place the appellant herself moved for directed verdicts and so the trial court was in fact apprised of the problem of whether plaintiff made a sub-missible case. Rothweiler v. St. Louis Public Service Co., Mo.App., 224 S.W.2d 569, 572. But more directly to the point is the fact that it is only after an adverse verdict that the plaintiff in the ordinary negligence action would have either the opportunity or the necessity of complaining that the verdict was against the weight of the evidence, an objection that does not necessarily involve or include whether plaintiff might be entitled to a directed verdict. Generally, therefore, a motion for new trial is the proper method or remedy for raising the objection that the verdict was against the weight of the evidence. 66 C.J.S. New Trial § 69, p. 203.

In this connection, while exceptions in the conventional sense have been abolished (Civil Rule 79.01, V.A.M.R.), the essence of the matter was summed up in Lee v. Baltimore Hotel Co., 345 Mo. 458, 462, 136 S.W.2d 695, 697, in which the court on its own motion granted a new trial: “There can be no question about the inherent power of the trial court to set aside a verdict and grant a new trial, at any time during the term in which it is returned, in the reasonable exercise of its discretion, irrespective of grounds stated in a motion for new trial. * * * Exceptions, while essential to preservation for appellate review of matters outside the record proper, are immaterial in considering the propriety of the trial court’s action in granting a new trial, because ‘the trial court may grant a new trial on account of any erroneous ruling made by it, whether excepted to or not.’ ” Seldom, almost never it may be said, would a plaintiff in a conventional common-law negligence action be entitled to a directed verdict. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. In any event the trial court has the broad discretionary power to grant one new trial on the ground that the verdict is against the weight of the evidence (Civil Rule 78.01; V.A.M.S. § 510.330), and having done so an appealing defendant’s claim that no case was made “is directed to the sufficiency of the evidence to make a case for the jury and presents the same question that arises upon a demurrer to the evidence.” Lindsey v. Vance, 337 Mo. 1111, 1114, 88 S.W.2d 150, 151. Of course, and from this principle the appellant may have been led to the present collateral contention, while the fact of a verdict’s being against the weight of the evidence is ground for a new trial, the defendant’s right to a directed verdict of necessity negatives the plaintiff’s right to a new trial. 66 C.J.S. New Trial § 70, p. 226. “In other words, plaintiff has no right to a new trial when the evidence in her favor is not sufficient to take the case to the jury. It is much the same question as is presented on a demurrer to the evidence, and, if such a demurrer should have been granted, no new trial can be granted on this or any other ground. A failure of evidence to support a verdict for plaintiff renders a case dead, and it cannot be resurrected by a motion for new trial.” Payne v. Reed, 332 Mo. 343, 347, 59 S.W.2d 43, 44.

And now in approaching the essential merits of the appeal, whether plaintiff made a submissible case, and at the risk of tiresome repetition, it appears to be necessary to again note, at least from a few of the more recent cases, the general rules applicable once the trial court has granted a plaintiff a new trial on the specific ground that the verdict in favor of the defendant is against the weight of the evidence. “The trial court is vested with an inherent and broad discretion in granting one new trial upon the ground the verdict and judgment are against the weight of the evidence. * * * And its ruling upon that ground will not he disturbed, except in case of manifest abuse. * * * The rule is sometimes expressed by saying ‘that the granting of a new trial by the trial court will not be interfered with on appeal where there is substantial evidence to sustain the trial court’s view, or, putting it another way, when there is substantial evidence to support a verdict for the party to whom a new trial is granted.’ ” Dawson v. Scherff, Mo., 281 S.W.2d 825, 831 (a case in which a defendant was granted a new trial on the ground that the verdict in favor of the plaintiff was against the weight of the evidence.) On the other hand, when a plaintiff was granted a new trial the court affirming the order said, “In determining whether the trial court properly exercised its discretion in awarding a new trial on the ground that the verdict was against the weight of the evidence, a discretionary ground, we must examine the record to ascertain if there was sufficient substantial evidence to justify the submission of plaintiff’s case to a jury. If plaintiff failed to make out a submissible case, the order granting a new trial to plaintiff, after verdict for defendant, would be arbitrary and an abuse of the court’s discretion.” Schmidt v. Allen, Mo., 303 S.W.2d 652, 655. Within the framework of these general rules there are two lines of cases, depending on the particular facts, those in which it was demonstrable upon the record that there were no circumstances from which the inference of negligence was permissible and hence there was an abuse of discretion in the court’s granting new trials and, second, those in which by the same standards the inference of negligence was permissible from the circumstances and therefore the orders granting new trials were sustained. Berry v. Harmon, Mo., 323 S.W.2d 691, 693.

In contending here that the respondent Robinson did not make a case and that therefore the trial court erred in granting a new trial on the weight of the evidence the appellant Wampler “contends she can demonstrate to this Court that plaintiff’s testimony against defendant Wampler is not of the ‘substantial’ quality required to justify the submission of the case.” She points to contradictions in the testimony of the respondent’s independent eyewitness Bailey and argues that by reason of the “inconsistencies” his testimony is “incredible.” She then applies the same tests to the respondent Robinson’s testimony and to certain of the exhibits, photographs and parts of the three automobiles involved, and argues that they “become (s) one of the physical possibilities or impossibilities” and that they fail to show “any impact damage” between respondent’s Pontiac and appellant’s Chrysler and finally she “suggests plaintiff’s evidence is contrary to the physical facts.” She then sets forth what she denominates four “physical factors” which she says demonstrate that “there was no sufficient substantial evidence to warrant the submission of any one of said three instructions” hypothesizing the plaintiff’s multiple theory of the appellant’s liability.

The appellant’s contention has been set forth in this manner, before detailing the facts and determining whether respondent made a submissible case, because brief reference to some of the cases relied on point up the weakness if not the factitiousness of her argument. For example, in Freed v. Mason, Mo.App., 137 S.W.2d 673, it is pointed out that in considering whether there was a submissible case the appellate court need not be concerned with all the theories submitted “in passing upon a demurrer to the evidence we must determine whether a case was made for the jury upon any theory of negligence charged in the petition.” And in determining whether there has been a manifest abuse of discretion in granting a new trial on the weight of the evidence “we will examine the record to ascertain if there was sufficient substantial evidence to justify the submission of plaintiff’s case to the jury; or to sustain a verdict for plaintiff, the party to whom the new trial was granted.” Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 169, 227 S.W.2d 660, 661. In this connection and particularly as to “physical facts” and automobile collisions the court quoted approvingly from a text — “So frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other.” Lowry v. Mohn, Mo., 195 S.W.2d 652, 657.

In brief, the circumstances were that about 12:30 on Friday, August 10, 1962, a line of traffic consisting of two tractor-trailer units and three following automobiles was proceeding north on Highway 67. At this particular point in the highway there was a rather long hill, the appellant calls it “a gradual grade up for north-bound traffic,” and a sharp curve to the left. There were yellow “no passing” lines for both north and south traffic. Near and approaching this point on the highway was the respondent Robinson traveling south and of course downhill in a 1957 Pontiac. And following Robinson, traveling in the same direction, was the appellant Mrs. Wampler and her friend Mrs. Eaves in the appellant’s 1960 Chrysler. The last vehicle in the line of traffic proceeding north was a 1957 Plymouth driven by Edsel French and just ahead of him on the highway was William Bailey, age 65, of Hartford, Illinois, a retired Sinclair Refining Company employee, traveling at a speed of 50 to 55 miles an hour. With a highway and traffic in this situation French pulled out of the line of traffic as it proceeded north and, disregarding the yellow lines, attempted to pass or go around the preceding vehicles. And, of course, the Plymouth collided with the respondent’s Pontiac after it came around the curve. As the Pontiac and Plymouth collided almost head on Mrs. Wampler’s Chrysler, according to Robinson and Bailey, struck the rear of the Robinson Pontiac and both vehicles rolled off into the ditch on the right side of the highway. Mrs. Wampler, to quote her counsel, “claims she did not at any time come into contact with plaintiff, Robinson’s, Pontiac” and this is the crux of the controversy and of this appeal. Despite her indicated argument, the appellant in her statement of facts frankly admits that “There is a dispute in the testimony as to whether or not there was a collision between defendant Wampler’s Chrysler and plaintiff, Robinson’s, Pontiac.”

This candid admission may be sufficient to dispose of the appellant’s argument and of the appeal. Mrs. Eaves says that as Mrs. Wampler drove south on the highway she was looking at Mrs. Wampler, age 60, and they “were talking about religion, and she was quoting Scripture to me.” The consequence was that Mrs. Eaves neither saw nor remembers anything about a collision on the highway. Mrs. Wampler says that “we had been quoting some Scripture” but she says she was looking “straight ahead” as she drove south at a speed of 45 to 55 miles an hour, that before the crest of the hill no Pontiac was in sight and just as she came over the hill she suddenly came upon a Plymouth, “partially across my lane” that she “(p)ut on my brakes with everything I had” but collided with the Plymouth after which she says she guided her Chrysler off into the ditch. As she drove off the highway she says that she saw the Pontiac already in the ditch and she testified positively that her automobile “never” collided with the Pontiac.

But if the admission of a conflict in the evidence is not sufficient to dispose of the appeal, Mr. Bailey, who described the automobiles as No. 1 (French’s Plymouth), No. 2 (Robinson’s Pontiac) and No. 3 (Mrs. Wampler’s Chrysler), said that the three automobiles all came into collision. Specifically he said, “No. 2 was the car that hit the northbound car that had passed me. And No. 3 was coming over the hill behind that one and collided with No. 2. * * * Just what part, I don’t know. I was off a distance from it. But there was nothing to bother my view, and I could see it. * * * I saw the Chrysler hit the second car.” On cross-examination he described the circumstances in precise detail and after relating how the Plymouth pulled out of line and collided with the Pontiac “head on,” and after seeing the Chrysler “(j)ust appearing over the crest,” he gave “a rough estimate” of 700 feet away (“It would have to be a guess. I couldn’t give you the exact feet on it”), he said, “It run into it; but just what part it hit, I don’t know.” And then there were these direct questions and answers:

"Q. * * * Did you actually see these two cars come together? A. Yes.
“Q. All right. What parts did you see of the Chrysler and the Pontiac come into contact with each other?
“A. The front part of the Chrysler hit the back end of the —
“Q. Hit the rear of the Pontiac ?
“A. Of the Pontiac.
* * * * * *
“A. Well, I never clocked it, but the first two cars was setting perfectly still when the third car come in contact with the second car.”

Insofar as his testimony concerned Mrs. Wampler’s automobile, Mr. Robinson said, “Well, a car dropped around down the hill on me.” He said that as he proceeded south on the highway at a speed of 60 to 65 miles an hour he became aware of the Chrysler behind him and “(t)hrough the rear-view mirror” he estimated it was “Oh, a car length” to the rear of his Pontiac. He said, “Well, she stayed right in behind me; didn’t take the break” and was never more than “two car lengths” back. And then there were these specific questions and answers:

“Q. When you pulled on the wheel to go off or try to get away from the Plymouth, do you know where the Chrysler was at that time?
“A. Right behind me.
* * * * * *
“A. May be a car and a half, but not over that.
* * * * * *
“Q. Was there any collision after your car and the Plymouth? A. Yes, sir.
“Q. What was it? A. That’s when the Chrysler hit me.
“Q. Where did the Chrysler hit you?
“A. Well, hit me right on the left-hand rear, right ahead of the front wheel- — I mean, the front of my rear wheel.”

It is not necessary to quote further from the testimony of these two witnesses, neither is it necessary to indicate the permissible inferences and note the possible supported grounds of negligence, it is sufficient to say that the evidence supports one or more of the submitted and hypothesized assignments of negligence and of course made a submissible case against Mrs. Wampler. Sundermeyer v. Lentz, Mo., 386 S.W.2d 16, 20; Gooch v. Avsco, Incorporated, Mo., 337 S.W.2d 245. And in this situation, as the court said in Dawson v. Scherff, supra, “Plaintiff’s testimony was at times conflicting as to the speed of each and both vehicles and their relative positions upon the highway at particular points. But we are not referred to any conflict or misstatement which is so at war with any essential element of plaintiff’s case as to amount to a judicial admission such as will ‘put him out of court’ * * See also Harding v. Peterson, Mo.App., 227 S.W.2d 88, 92, and Freed v. Mason, supra. The circumstances are in no way comparable to the automobile-train crossing case of Kelly v. Terminal Railroad Ass’n. of St. Louis, Mo., 315 S.W.2d 699, or to Stonefield v. Flynn, Mo.App., 347 S.W.2d 472, where the circumstances were “so manifestly incredible, impossible and contrary to the known laws of physics it does not amount to substantial evidence” to support the hypothesis of stopping distance under the humanitarian doctrine. Certain it is that the circumstances and the quoted testimony supports one or more of the submitted theories of negligence and the defendant Wampler was not entitled to a directed verdict (Nelson v. Wabash Railroad Company, Mo., 300 S.W.2d 407, 409), and, as indicated, under the applicable general rules there was no demonstrable or manifest abuse of discretion in the court’s granting the plaintiff a new trial on the specific ground that the verdict in the appellant’s favor was against the weight of the evidence. Schmidt v. Allen, supra; Berry v. Harmon, supra; Dawson v. Scherff, supra; Lindsey v. Vance, supra. Accordingly the judgment is affirmed and the cause remanded.

STOCKARD and PRITCHARD, CC.» concur.

PER CURIAM:

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    Fern WHITE, Appellant, v. Leroy McCANN and Alice McCann, Respondents.
    No. 50610.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.
    Motions for Rehearing and to Transfer to Court En Banc Denied May 10, 1965.

      Robert Stemmons, Mt. Vernon, for appellant.
    Moore, Pettit & Steinle, J. Hal Moore, Walter S. Pettit, Jr., Jack P. Steinle, Aurora, for respondents.
   HIGGINS, Commissioner.

Fern White, plaintiff, sued Leroy Mc-Cann and Alice McCann in ejectment, and the defendants counterclaimed in ejectment and for cancellation of deeds. The judgment and decree favored defendants and by it two deeds, a deed of trust and an agreement, all involving title to real estate, were canceled and set aside. Plaintiff has appealed.

On September 25, 1961, Fern White and Leroy and Alice McCann entered into a written agreement, Exhibit II, which recited that Fern White owned a 40-acre tract in Greene County, Missouri, and that Leroy McCann and his wife, Alice Mc-Cann, owned certain lots in Halltown, Lawrence County, Missouri. Both properties were legally described and the parties agreed to execute warranty deeds to accomplish an exchange of them. The agreement recognized also that a tavern on the Fern White property was the subject of a lease, and made provision respecting possession of the tavern. That provision is at the heart of this litigation and is set out later in connection with defendants’ pleading.

The property at Halltown was improved by a service station and a dwelling house, and Leroy McCann operated a gasoline service station on the premises. The 40-acre tract in Greene County was improved by a tavern, some cabins, and a dwelling house. The tavern was located where U. S. Highway 160 crosses the Sac River and thus the name, Sac River Tavern.

On October 4, 1961, the parties met at the home of Jack L. Hobson, an attorney, and Mr. Hobson prepared the deeds called for by the contract. The deeds were executed by the grantors and their acknowledgments were taken by Mr. Hobson. Exhibit A is the deed from the McCanns to Mrs. White, and Exhibit B is the deed from Mrs. White to the McCanns. Upon this same occasion, Mr. Hobson prepared a note called for by the agreement and he also prepared a deed of trust, Exhibit C, which was executed by the McCanns along with the note to secure payment of the note, the security being the real estate deeded by Mrs. White to the McCanns. The amount of the note, $7,500, was the sum agreed to be the difference in value of the properties exchanged. The deeds and deed of trust were drawn by inserting dates, names, amounts, and descriptions into appropriate blank spaces in standard stationers’ printed forms. They contain no covenants, conditions, restrictions, or warranties, other than those regularly provided in such standard forms. They were delivered by an exchange at the Hobson home, Mrs. White receiving the deed to the Halltown property and the deed of trust and note on the Sac River property, Exhibits A, C, and D; the McCanns receiving the deed to the Sac River property, Exhibit B. There was evidence received over objection that the attorney told the parties not to record the deeds until possession of the tavern was delivered. Nevertheless, on October 6, 1961, defendants caused their deed to the Sac River property to be recorded in Greene County, Missouri, and on October 9, 1961, plaintiff caused her deed to the Halltown property to be recorded in Lawrence County, Missouri. On October 10, 1961, plaintiff caused the deed of trust on the Sac River property to be recorded in Greene County, Missouri.

The original tavern lease mentioned in the agreement to exchange properties is in evidence as Exhibit E; an executed copy of the lease is Exhibit 2. These exhibits are identical except that the original lease describes the lessee as “Gene Elsey, of R.F.D., Ash Grove, Missouri,” where the copy shows the name “Gene Elsey” stricken and “Riverside Cafe & Package Store, Inc.,” inserted. The evidence conflicted as to when the change was made, but both exhibits show execution by Gene Elsey, R.F.D., Ash Grove, Missouri, as lessee. The lease was for one year from July 1, 1961, unless terminated sooner by other provisions. The lessee agreed not to sublet without written consent of the lessor, and lessor was entitled to repossess upon lessee’s failure to pay rent. The lessor gave no consent to sublet, and the lessee failed to pay rent. On October 24, 1961, Mrs. White obtained judgment against Gene Elsey for possession. She then learned that a Jim Barrett claimed possession, and she obtained judgment for possession against him November 7, 1961. She then learned from Barrett that the original business of Gene Elsey had become incorporated and she caused notice to vacate, Exhibit I, to be served on Mack F. Grayson, individually, and as the managing officer of the corporation. Neither Elsey nor Barrett went to the tavern after the judgments were entered; Grayson left the tavern November 14, 1961, and returned in February 1962, only to look in the window. The tavern was never reopened or reoccupied. Mrs. White had her own padlocks put on the tavern November 19, 1961, and there is evidence that she tendered the keys to Mr. McCann on two different occasions, November 20, 1961, and the day after Thanksgiving, 1961. Mr. McCann had been at the tavern November 11, 1961, on which occasion he was in a fight and received bruises and a head wound which required fourteen stitches. On December 5, 1961, the McCanns wrote to Mrs. White: “In view of the fact you have been unable to deliver possession of the premises within the sixty (60) days as provided by the contract, I therefore request a deed back of my property and I will return a deed to you of yours.”

Prior to this turn of events, the Mc-Canns had moved some furniture and machinery to the Sac River property, painted woodwork, graded and graveled the driveway, had electricity connected, and secured insurance on the property. After the fight on November 11, 1961, around the first part of December, Mr. McCann went to the house to get his furniture.

Mr. McCann operated the service station until the first part of 1963, when the highway was relocated, and although he vacated the Hallsville house April 1, 1963, he had some furniture and personal property there when Mrs. White moved in September 14, 1963. The McCanns have made no payments on the note.

Plaintiff, by her petition in ejectment of February 14, 1962, asserted that she was entitled to the Halltown premises as of October 4, 1961, the date of the deed by which defendants conveyed such premises to her. Defendants filed a general denial and a counterclaim. The counterclaim was amended at time of trial, October 24, 1963, to reflect Mrs. White’s occupancy of the Halltown property. Defendants attached the agreement for exchange of properties as an exhibit to their pleadings and alleged: “As a part of the aforesaid Agreement, plaintiff and defendants had drafted, each for the other, a Warranty Deed to the land to be exchanged pursuant to Exhibit ‘A’; * * * these Deeds were exchanged with the delivery being expressly conditioned upon the subsequent fulfillment of the last paragraph in the Agreement, which reads as follows:

“ ‘Its (sic) is agreed that the Tavern loacted (sic) on the Fern White property is now the subject of a lease which is in default and possession of the premises have been demanded it is mutually agreed that in the event court action is essential to secure possession of same that said Fern White shall have until the termination of such litigation to deliver possession not exceeding 60 days, but as to all other properties possession shall be at the time of executing the deed, except McCann may continue to operate his present business until possession of the tavern is given.’”

Defendants then allege a failure of plaintiff to deliver the possession mentioned, and in view of plaintiff’s present possession of the Halltown property, allege an entitlement to possession of that property as of September 14, 1963. Their prayer is for possession of the Halltown property and for a decree canceling the instruments executed pursuant to the agreement to exchange properties.

By reply, plaintiff alleges, among other things, that the part of the agreement set out in paragraph 2 of the counterclaim does not constitute a condition upon which the relief sought by defendants can be granted. Plaintiff also denies defendants’ allegations of entitlement to possession of the Halltown property.

At the close of all the evidence plaintiff moved for a directed verdict as a matter of law. The motion was denied and the cause was submitted to a jury which, under the instructions of the court, returned verdicts on the petition and counterclaim for defendants for possession of the Halltown property. The court entered a “Judgment and Decree” which, after reciting the jury verdicts, proceeded: “In accordance with said verdicts, the Court finds that the allegations in defendants’ First Amended Counter-Claim are true and that defendants are entitled to the relief therein prayed.” The court then adjudged possession of the Halltown property to defendants and decreed that the agreement for exchange of properties and the two deeds and the deed of trust and note exchanged pursuant to the agreement be set aside.

Plaintiff filed after-trial motions to set aside the judgment and decree and to enter judgment for plaintiff in accordance with the motion for directed verdict and for new trial. Among other things, they asserted that the provision in the agreement set forth in the counterclaim does not contain a condition upon which to grant the equity of setting aside deeds which were exchanged pursuant to the agreement and which were absolute and without conditions, and that plaintiff was entitled to possession of the Halltown property as a matter of law. The motions were unavailing and this appeal followed, the substance of appellant’s contentions on appeal being those mentioned above in describing the after-trial motions.

There are matters both at law and in equity in this case. As to those matters in equity it is our duty to review the cause de novo, and in doing so we weigh the competent evidence and reach our own conclusions as to the facts. Haer v. Christmas, Mo., 312 S.W.2d 66, 68 [1].

The deeds exchanged between the parties contained no conditions and were thus absolute and effective for all purposes unless the agreement set forth by respondents in their counterclaim contains a condition which gives rise to an action to set them aside. The counterclaim makes no reference to any other agreement, written or oral; therefore, we need look only to the agreement to determine the existence of any conditions affecting validity of the instruments in question. When the paragraph in question is analyzed a number of things become apparent. First is the agreed recognition of the lease of the tavern building on the Fern White property and that it is in default. Next is a provision for time in which to bring any court action necessary to delivery of possession of the tavern. Then follows a provision that “as to all other properties possession shall be at the time of executing the deed." (Italics ours.) The deeds and instruments in question were all executed October 4, 1961, and were thereafter exchanged and recorded. No conditions or restrictions affecting possession, title, or delivery were placed in the deeds. After the exchange respondents moved furniture to the house and machinery to the grounds on the 40-acre tract, had electric power connected, did work on the premises, and insured the improvements. At this same time, appellant was entitled to the Halltown premises “except McCann may continue to operate his present business until possession of the tavern is given.” By this last provision, possession of the service station only was to be withheld from appellant until possession of the tavern had been settled. Thus, the only condition or limitation in the agreement pertained to possession of the tavern and service station. Nowhere is there any provision for avoiding the exchange of properties or for canceling the deeds and other instruments -by which the exchange was accomplished, nor was there any provision which could operate to forfeit or cancel the deeds.

Respondents contend that the paragraph in question constituted a condition precedent to the vesting of title or validity of delivery of the deeds citing the definition from Black’s Law Dictionary: “A condition precedent is one which must happen or be performed before the estate to which it is annexed can vest or be enlarged; or it is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. * * * A ‘condition precedent’ is one that is to be performed before the agreement becomes effective, and which calls for the happening of some event or the performance of some act after the terms of the contract have been agreed on, before the contract shall be binding on the parties.” Black’s Law Dictionary, Fourth Edition, p. 366. That same authority defines a condition subsequent as “one annexed to an estate already vested, by the performance of which such estate is kept and continued, and by the failure or non-performance of which it is defeated; or it is a condition referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition.” It is not necessary for us to distinguish between these two types of conditions because the distinctions do not affect the result in this case. No matter what the language here is termed, be it condition precedent or condition subsequent, it is not concerned with the vesting of title or delivery of the deeds. At most, the provision or condition is that Mr. McCann may continue to operate his service station in Hallsville until possession of the Sac River '‘Tavern is made available to him.

Respondents’ action to set aside deeds must fail because all instruments were to be exchanged pursuant to the agreement; they were so exchanged and there is no condition there which voids the absolute quality appearing on the face of each instrument.

Respondents argue that they proved “a conditional delivery of the deeds as plead [ed],” and make reference to evidence received over objection to support this contention. Mr. McCann testified over objection that “She (Mrs. White) said that if she had any trouble in getting possession of her property, then our whole deal would be off and we wouldn’t trade properties.” “The understanding was that if she could not give us possession of the property within sixty days that we would have no trouble whatsoever, and that our place in Halltown would come back to us by deed, and we would deed the tavern property back to her.” In like manner Mrs. McCann testified over objection that “She (Mrs. White) said if she couldn’t give us possession in sixty days that the whole deal would be off.” Appellant’s objections to this line of testimony were that receipt of such evidence would be a violation of the parol evidence rule. 32A C.J.S. Evidence §§ 851, 901, pp. 211, 257. We agree. Respondents, in making this point, refer again to their pleading which is bottomed upon, and refers to, a specific written agreement and, having thus adopted and relied upon such agreement, they cannot now modify or vary its effect and its terms by parol evidence. And, in view of appellant’s persistent and timely objections to this line of testimony, there was no consent to the trial of any issue that may have been thus raised outside the pleadings so as to permit application of Civil Rule 55.54, V.A.M.R.

Turning to the ejectment issue in this cause, we^ note again that appellant grounded her right to possession on the deed by which she obtained the property from respondents and that respondents’ action in ejectment is grounded on the same allegations as the action to set aside deeds. The analysis and construction of the paragraph in question is again the governing factor. By that analysis appellant was, under her deed and as a matter of law, entitled to possession of all of the Hall-town properties subject to the provision for Mr. McCann to continue his service station until possession of the Sac River Tavern was available to him. At no time after October 4, 1961, were respondents entitled to deny appellant possession of the Halltown properties except the service station, and this right would cease upon delivery of possession of the tavern. Likewise, appellant could not deny possession of the 40-acre tract to respondents except as all parties recognized that a portion of those premises was subject to a lease. The parties made provision to govern matters of possession and such provision cannot be enlarged to defeat title to real estate. Neither can it be broadened to withhold possession of any properties not mentioned or to withhold possession of any properties beyond the time limited in the provision. It is not contended here that the right of possession under the lease of the tavern did not expire with the lease on June 30, 1962, irrespective of judgments or other provisions which may have effected an earlier termination and delivery of possession. As a matter of law, then, the right of Mr. McCann to retain possession of the service station would have terminated at that same time if not by an earlier delivery of possession of the tavern to him.

Under our construction of the agreement the judgment is erroneous because it undertakes to award possession of properties to one other than the record title holder at a time when such party no longer has any right to any portion of the premises. Appellant has the legal title to the whole premises by virtue of the deed from respondents, and respondents’ right to retain possession of any part of the premises by virtue of the agreement terminated at the latest on June 30, 1962. Appellant is thus entitled to possession of her premises as a matter of law and the judgment in ejectment must also be reversed.

Accordingly, the judgment is reversed and the cause is remanded with direction to set aside the decree which purports to cancel the two deeds, deed of trust, note, and agreement discussed in this opinion, and with further direction to enter judgment for appellant for possession, and to accord her a new trial on the issue of damages.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: PRITCHARD, Commissioner.

text:
    Russell MILLER, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Appellant. CITY PRODUCTS CORPORATION, a corporation, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Appellant.
    No. 50671.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied May 10, 1965.

      George W. Cady, St. Louis, for respondent, Russell Miller.
    Lusser & Lusser, Rene J. Lusser, Rene E. Lusser, St. Louis, for respondent, City Products Corporation.
    James Ruddy, St. Louis, for appellant.
   PRITCHARD, Commissioner.

Respondent Miller filed his action for personal injuries against appellant wherein he prayed for $75,000 damages. Respondent City Products Corporation also filed its action pursuant to Section 287.150 RSMo 1959, V.A.M.S., to recover from appellant $8,497.-40 paid as workmen’s compensation benefits to Miller, it being alleged that he was injured during the course of his employment with City Products. The actions were consolidated by the trial court.

Trial beginning on November 4,1963, was to a jury which returned a verdict for appellant and against respondents. Respondents’ motions for new trial were sustained upon two specified grounds, (1) that the giving of Instruction No. 2 upon the burden of proof was error; and (2) that the verdict was against the weight of the evidence. From the order granting a new trial this appeal has been perfected by appellant. We have jurisdiction by reason of the amounts prayed for exceeding $15,000. Const.Mo.1945, Art. V, Sec. 3, V.A.M.S.

Appellant challenges the order for new trial first upon the theory that it was an abuse of discretion upon the trial court’s part because respondents failed to make a submissible case; and second that Miller was contributorily negligent as a matter of law. (Appellant says also that the giving of Instruction No. 2 on the burden of proof was not error, and that there was no evidence to be weighed because appellant put on none relating to liability.) We therefore examine the evidence in its light most favorable to respondents.

Respondent Miller testified that on the date of his injury, August 14, 1959, he was employed by respondent City Products Corporation, with duties of delivering ice to taverns and restaurants, for which he drove a l}/2 ton truck equipped with a cab and body. Between 8:00 and 8:30 a. m. on that date he arrived in the 2400 block on 14th Street in St. Louis, Missouri, between North Benton and North Market streets. He parked his truck headed south between a parking meter and an alley on the west side of 14th Street which was 36 feet wide. His truck was about 7 feet wide and extended that distance into the street from the curb. Miller then walked across the street to the Colonial Tavern (an ice customer) and remained there three or four minutes. He then came back out, and stepped out into the street 6 or 7 feet past some cars parked on the east side of 14th Street, looked to the south and to the north, but did not see a thing coming in the immediate block. He could see north to Benton Street about 130 feet and south to Market Street about 150 feet.

Miller then began walking at a normal gait toward the cab portion of his truck, and diagonally across the street in a southwest direction for a distance of about 22 feet. When he reached the truck he heard “like somebody had their hand on the horn” and he “figured they was going to belt me” and he squeezed up against the cab of the truck right at the cab door, with his body against it and his legs up to the running board. Miller had just started to reach for the truck cab door when he heard the horn. He heard a scrape and a “thump” coming from the rear of the truck two or three seconds after he heard the horn. He remembered nothing more at that time, having been rendered unconscious. After he regained consciousness Miller saw a man at the scene of the accident wearing a gray uniform and a Public Service shield on the top of his cap. He also saw a Public Service bus to the south of him parked at about North Market Street. Other witnesses put the distance of the bus from Miller at about 35 feet. Miller was then lying alongside his truck, about 2 feet from it. He then lost consciousness again, and awoke later in a hospital.

Although not in issue here, we mention that, among others, Miller received injuries to his right leg which necessitated hospitalization, the wearing of a cast, a brace and the use of a cane for a time.

On the day of the accident the weather was warm and there was no rain or anything on the street which made it hazardous to stop.

The photographs of the truck as it appeared after the accident were put in evidence. On its left side it had a scrape or indentation mark at the left rear near the top; an angle iron was pulled away from the lower left rear of the truck, and the metal of the bed was pushed inward at that point. An indentation and scrape mark were also on the left front of the truck bed, which extended beyond the door of the cab between 12 and 14 inches. Miller testified that before the accident the truck had been newly painted and had no damage to it, other than on the rear where blocks of ice were pulled from the truck.

Benjamin J. Moynihan testified that on August 14, 1959, he was a passenger in the front part of a St. Louis Public Service bus — the Florissant bus line which travels on 14th Street. As the bus was going south on 14th Street he heard a “thump” noise coming from the rear of the bus at the time the bus passed the truck. He looked back and saw a man lying in the street. The bus stopped within 35 feet of the truck.

Joe Musiol testified that on the morning of August 14, 1959, he was driving beer to the Colonial Tavern on 14th Street. He saw Miller walk across the street to his truck, and when Miller was 6 inches or a foot away from the truck Musiol saw a red Public Service bus going south. Musiol yelled, “Look out, you’ll get hit,” but knew that Miller didn’t hear him. All of a sudden the bus was by and he heard a “thump” and then saw Miller lying on the street, and he went across the street to see what he could do for him.

Defendant’s argument with respect to the submissibility of plaintiffs’ cases is that the evidence did not show when the operator of the bus failed to keep a proper lookout, and that there was no evidence that the defendant had the means and ability to have avoided the accident. Plaintiffs, on the other hand, argue that there is evidence that the bus operator failed to keep a proper lookout, and that it is not incumbent upon plaintiffs to prove that because of such failure to keep a lookout the negligent bus operator failed to stop or swerve, or sound a timely warning.

The object and purpose of the strict requirement that persons operating motor vehicles keep a proper lookout upon public streets and highways is that they may acquire knowledge of the presence of other persons and objects on such streets and highways, and an awareness of dangerous situations and conditions. It is only because of that knowledge and awareness that the operators of motor vehicles may take appropriate precautionary measures to avoid injury to themselves and other persons within an existing area of peril.

It has long been the rule that it is unnecessary to hypothesize in an instruction upon the lookout doctrine the exact manner in which, or means by which, the party charged with negligence in failing to keep a proper lookout could have acted to have avoided a collision. (Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 25 [9-10]; see also the now effective Missouri Approved Instructions, §§ 17.02 and 17.05.) We do not take the rule to mean that there is a submissible case without sufficient facts and circumstances, from which, at least, a permissible inference could be made and a jury could find, that such manner and means of avoidance existed. This concept is developed in Creech v. Riss & Company, Mo., 285 S.W.2d 554, 562 [7-8], where it is said, “It is true that, even though the jury found that Otto Boss was negligent in failing to keep a proper lookout, still, to find for plaintiff, the jury had to further find that such negligence contributed to directly cause plaintiff’s injuries; and to arrive at the last-mentioned conclusion, the jury had also to find or to reason from the evidence that Otto Boss could have acted within his ability to act so as to have avoided the collision with Riss. The exact manner in which Otto Boss could have acted to avoid his collision with Riss was a finding or inference based upon the evidentiary facts which were adduced in support of the submitted essential finding of causation. * * * The exact manner in which, and the means by which, he could have acted to have avoided the collision were not essential hypotheses under the circumstances of the instant case, so long as there was substantial evidence to support a reasonable finding that Boss had the means and ability to have so acted that a collision with Riss would have been avoided.” Thus the general statement found in the cases, that “It ought, therefore, be sufficient to authorize a verdict if a jury finds that a party was negligent in failing to keep a proper lookout and that such negligence resulted in (i. e., proximately caused) a collision or damage,” is explained. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, 693 [2]; Anthony v. Morrow, Mo.App., 306 S. W.2d 581, 587. (Parenthetical statement added.) So, in order to show that a negligent failure to keep a lookout proximately caused the accident or injury, it is necessary to have further evidentiary facts that the person charged with such negligence could have acted in some manner so as to avoid the accident or injury. In addition to the Creech and Moore cases, supra, see O’Neill v. Claypool, Mo., 341 S.W.2d 129, 135 [11, 12]; Boehm v. St. Louis Public Service Company, Mo., 368 S.W.2d 361, 366 (where the contention was overruled that there was no substantial evidence to support an instruction that defendant Company had the means and ability to avoid the collision had a vigilant watch and lookout been kept); and Zalle v. Underwood, Mo., 372 S.W.2d 98, 102 [1-3].

In this case, however, we hold that there were sufficient facts and circumstances adduced by which a jury could find that appellant’s bus operator failed to keep a proper lookout, and that the same was the proximate cause of the accident and Miller’s injuries. Miller testified that as he stepped about 7 feet into the street he looked first south, then north, and in the latter direction he could see all the way to North Benton Street — some 130 feet. There was no traffic approaching at that time, as Miller could see. He then proceeded to walk in a normal gait across the street approximately 22 feet to the cab of his truck. We may judicially know that the average walking speed of a person is 2.9 to 4.4 feet per second. McFarland v. Wildhaber, Mo., 334 S.W.2d 1, 3 [2-7]. At sometime during the 5 to 7 seconds that it took Miller to walk across the street, and the 2 or 3 seconds that he stood by the door of his truck, defendant’s bus must have been approaching from the north, and during all of the time of such approach the operator of the bus had or should have had Miller within the plain range of his vision upon the clear and unobstructed street. Being held to the duty of looking ahead and seeing Miller (or seeing him before he did when apparently he sounded the horn) in a position of danger, either in walking across the street or standing by the cab of the truck, the bus operator should then have taken some precautionary measures to avoid the accident. Under the facts and circumstances here that the portion of the street available for travel and maneuvering was about 22 feet in width (36 feet less about 14 feet on both sides for parked vehicles), the jury could reasonably have found that the operator could at least have sounded a timely warning or swerved his vehicle sufficiently to the left to have avoided striking Miller who was at all times in plain view. Although appellant contends that there was no evidence that the bus struck plaintiff, we hold that there were sufficient facts and circumstances in evidence that the jury could find that it did. Respondents made a submissible case of the negligence of the bus operator in failing to keep a proper lookout. Appellant’s Point I is overruled.

Appellant claims that respondent Miller was contributorily negligent as a matter of law, and neither of respondents may therefore recover. The evidence showed that Miller stepped past the parked cars on the east side of 14th Street and into the street about 7 feet from the curb. He then looked both ways and saw nothing in the street. He then proceeded to walk across what appeared to be a clear street. Upon these facts, the issue of Miller’s contributory negligence in failing to look again as he crossed the street was for the jury. Brown v. Conser Laundry Co., Mo., 246 S.W. 166, 169 [2]; Epstein v. Kansas City Public Service Co., Mo.App., 78 S.W.2d 534, 537; and Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, 591 (a pedestrian crosswalk case). Appellant’s Point II is overruled.

The court, upon its own motion and over the objection of both respondents (such objection being made by counsel for one of the respondents on behalf of both), gave the following burden of proof instruction (No. 2);

“The Court instructs the jury that the burden of proof is upon plaintiffs to prove their case against the defendant by the preponderance or greater weight of the credible evidence, and unless plaintiffs have done so, your verdict should be for the defendant.
“The Court instructs the jury that the burden of proof, on the issue of contributory negligence, is upon the defendant to prove such contributory negligence by the preponderance or greater weight of the credible evidence, and unless defendant has done so, your findings should be for the plaintiff on the issue of contributory negligence.
“By the term ‘preponderance or greater weight of the credible evidence’ is meant evidence which is more satisfying to you than the evidence offered in opposition thereto.”

Specified as one of the grounds for granting the motion for new trial to plaintiffs was error in the giving of Instruction No. 2. This ground for the motion was correct as is readily seen when the third paragraph definitive phrase, “evidence which is more satisfying to you than the evidence offered in opposition thereto,” is substituted for that which it defines in the first and second paragraphs, making them read, “The Court instructs the jury that the burden of proof is upon plaintiffs [defendant] to prove their case [such contributory negligence] by evidence which is more satisfying to you than the evidence offered in opposition thereto * * This brings the instruction squarely with' in the condemnation of the “to the satis faction” clauses in the case of Bell v. Pedigo, Mo., 364 S.W.2d 613, 620 [9], and we hold, for the foregoing reason, that the trial court did not err in granting a new trial to plaintiffs because of error in giving Instruction No. 2. Point III is ruled against appellant, and it is unnecessary to consider the further point concerning the ground for new trial that the verdict was against the weight of the evidence.

The order granting a new trial is affirmed and the case is remanded therefor.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.