author: BARRETT, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Respondent, v. Doyle S. SMITH et al., Exceptions of Arthur J. and Estella M. Haney, Defendants-Appellants.
    No. 51039.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 13, 1965.

      Robert L. Hyder, Thomas E. Cheatham, Jefferson City, for plaintiff-respondent.
    Claude T. Wood, Richland, Hubert E. Lay, Houston, for defendants-appellants.
   BARRETT, Commissioner.

In relocating, reconstructing and improving, with limited access, 7.124 miles of U. S. Highway 63 through Texas County the state condemned a part of a tract of land on the outskirts of Houston belonging to Arthur J. and Estella M. Haney. By their proof the Haneys claimed damages of $18,000 (the lowest) to $35,000 (the highest estimate), the state by its proof admitted damages of $6000 to $7700, a jury returned a verdict of $10,000 and the landowners have appealed asserting in damages a sum in excess of $15,000 and jurisdiction of the cause is appropriately in this court. State ex rel. State Highway Comm. v. Rauscher Chevrolet Co., Mo., 291 S.W.2d 89, 55 A.L.R.2d 773.

The exact measurement and area of the Haneys’ land does not appear, it was a triangular-shaped tract consisting of about one acre and the state appropriated .2 of an acre at the east tip or angle. The taking of the tip left the tract in a five-sided area, rectangular in shape. In the middle of the tract, before and after the taking, the Haneys had a six-room modern cobblestone house with full basement. On the southwest corner of the plot they maintained and operated a general grocery store in which they also sold some nursery plants and hardware. On the .2-acre tip the Haneys maintained a hotbed, including a boiler, in which they raised plants. The entire plot of ground and improvements was located just off Highway 63, no part of the tract touching the main highway and there was no direct access to it. Access to Highway 63 was from Route F 305 feet across the south side of the appellants’ property. Route F led from Highway 63 just each of the Haneys’ land. At the southwest corner Route F joined Route O, almost at a right angle and Route O was along the west side of the property.

The effect of the relocation of Route F was that there was a riprapped ditch on the south of the Haneys’ property, it no longer fronted directly on the roadway and of course there was no longer direct access to Route F from their property. And on the west side off of Route O a twenty-four foot entrance, near the store building, was provided for the plot. In addition to the loss of the .2 of an acre of ground and the 72 feet by 32 feet hotbed, which with its plants Mr. Haney valued at $1800.00 and the boiler at $800.00, the principal injury or loss was parking for themselves and their customers on the right-of-way of Route F adjacent to and in the area of their grocery store. At one point in the course of their argument the appellants make this statement: “We submit that the real crux of the damages to the defendants was the destruction of their parking areas,” formerly a possible 35 parking areas, now 7 or 8. Upon this appeal, however, it is only indirectly by the mere fact of the appeal itself that the appellants assert the inadequacy of the $10,000 award. As indicated from the estimates of damages at the outset, the appellants concede as indeed they must that there was substantial evidence to support as a maximum loss the $10,000 award. In recognition of this fact' the appellants contend that they are entitled to a new trial and assert as grounds therefor three assignments of error; that the court prejudicially erred in giving instructions P-2 and P-3 and in failing to sustain for cause their challenge of juror George Foster.

The latter assignment arose in these circumstances: Counsel for the landowner inquired of the jury panel whether “a member of your family” is employed by the State Highway Department. The challenge for cause was made when juror Foster responded, “My son is an appraiser with the Highway Department. He works out of Willow Springs” (which as almost everyone knows is the divisional office in which Texas County is located). When the challenge was made the court inquired, “Mr. Foster, the fact that your son, you say, is employed as an appraiser by the State Highway Commission, would that in any way influence you in the trial of this case?” The juror responded, “It would not. There’s no one responsible for the things I do but myself.” Thereupon the court overruled the challenge for cause and appellants’ counsel used one of their peremptory challenges and struck the juror from the panel. And now in urging error and the right to a new trial appellants say: “The issue in the case at bar was the amount of damages. The appraisals of the property was the chief element of evidence for both parties. * * * Juror Foster’s son was one of the members of respondent’s staff of appraisers working out of its Willow Springs office. We submit that juror Foster was in a situation where, from the ‘common experience of men’ he naturally would be prejudiced, ‘notwithstanding his protestations of fairness and freedom from bias, of which men are most frequently wholly unconscious.’ ”

It may well be that juror Foster should have been excused, of course there would have been no problem had he been excused and there would have been no abuse of discretion in the court’s excusing him. Even though there may be some theoretical or technical validity in the quoted argument, in the circumstances of this record it is not sufficient to plainly demonstrate an abuse of discretion (Johnson v. Missouri-Kansas-Texas R. Co., Mo., 374 S.W.2d 1) or more important a manifest invasion of the right to a fair and impartial panel of jurors within the principles set forth in Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023, 103 A.L.R. 505; Carroll v. United Railways Co., 157 Mo.App. 247, 137 S.W. 303, and Moore v. Middlewest Freightways, Mo., 266 S.W.2d 578. Even though there was a $500 verdict, it was held in Murphy v. Cole, supra, that there was an abuse of discretion when the court denied a challenge for cause to a juror who was the local agent but not the underwriter for the defendants’ insurance company. While as indicated by the fact of their appeal the Haneys are aggrieved, their actual loss consists of the taking of .2 of an acre of ground with its hotbed together with its plants and boiler and the loss of adjacency and access on the south side of their lot due to the relocation of Route F and the restricted or limited access on the west side along Route O. The house and store are intact, physically they have not been injured, and the actual loss of land area has been comparatively small. The appellants do not claim to be aggrieved in these latter respects, as indicated and as they specifically claim the principal loss to them has been the loss of adjacency and thereby of access on the south and particularly the loss of parking spaces on the right-of-way of old Route F. In the circumstances of this record not only is the verdict of $10,000 as just compensation supported, for these particular losses it is indeed difficult to envision let alone demonstrate just how under this unanimous verdict and nonstatutory ground of a challenge for cause (V.A.M.S. § 494.190) the appellants’ right to a fair and impartial jury panel has been infringed. Johnson v. Missouri-Kansas-Texas R. Co., supra. In their essence the appellants’ assignments of error as to instructions are closely related to their basic argument in regard to the challenged juror.

Instruction 2 informed the jury that “you are instructed that in determining the value of the defendants’ property or the damages resulting thereto from the taking of a part thereof, you shall not consider whether parking is or is not permitted upon the highway right-of-way.” Instruction 3 defined the term “right of access” and told the jury that “in assessing the amount of damages, if any, sustained by the defendant, you may consider the limitation of defendants’ right of access to any highway existing at the time of this appropriation, hut you shall not allow any damage for any loss of access to this highway or any part thereof not in existence at the time of this appropriation.” (Italics added for emphasis.) In the latter instruction the appellants are agreeable to the jury’s being told that they could consider ■limitation of access to “highway existing” at the time of the appropriation but they object to the underscored language contending that the language “this highway,” in view of the three routes actually involved, is confusing and misleading. Of course it was conceded that some of the appellants’ property was taken and consequently that they sustained some loss and therefore they say that the use of the words “if any” in instruction 3 submits an undisputed issue and is not supported by evidence. As to instruction 2 it is urged that it is a misstatement of law because it took from the jury’s consideration “certain rights that an abutting landowner has in the highway. * * * the right to the use of said highway for private or any other purpose which is reasonable and which does not interfere with the enjoyment of the public.”

In connection with other given instructions, the only instruction requested by the appellants told the jury that the state had “appropriated and taken for public use a part of the tract of land described in evidence * * * and has taken certain highway access rights from Defendants on the remaining portion of said tract of land as described in evidence.” In a separate paragraph it said, “It is therefore your duty, under the law, to assess the just compensation to be paid said Defendants, the owners of said tract, for the taking of their property and highway access rights.” While “if any” are words of “qualification and contingency” (Wells v. Missouri-Edison Electric Co., 108 Mo.App. 607, 617, 84 S.W. 204, 207), they do not necessarily render an instruction prejudicially erroneous even though employed one time in an instruction and that upon an undisputed issue, as here that the appellants admittedly were injured by the appropriation of their property and rights when all instructions are read together and it is obvious from all the circumstances that the jury has not been misled. State ex rel. State Highway Comm. v. Volz Concrete Materials Co., Mo., 330 S.W.2d 870, 875; St. Louis Housing Authority v. Bainter, Mo., 297 S.W.2d 529, 532. The appellants’ testimony as to loss of access came in in its entirety, including parking spaces on the right-of-way without objection (State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57) and it is not believed upon this particular record that the jury was confused or misled as to any basic issue involved upon this appeal. State ex rel. State Highway Commission v. Bailey, 234 Mo.App. 168, 115 S.W.2d 17, 22.

As a matter of fact these contentions as to particular language are subsidiary and no doubt urged as supporting their principal claim “that the real crux of the damages to the defendants was the destruction of their parking areas.” In this connection and in view of this argument it is not necessary upon this appeal to either approve or disapprove for all time either of these instructions or any particular language in them, it is sufficient to say that while an abutting owner has certain rights in connection with a highway, in some instances perhaps rights distinct from those enjoyed by the public in general (Press v. Penny & Gentles, 242 Mo. 98, 145 S.W. 458, 18 A.L.R. 794), those rights are nevertheless subordinate to the rights of the public and are subject to regulation. 39 C.J.S. Highways § 142, p. 1083. Furthermore, parking motor vehicles within the limits of a highway or using the highway right-of-way as a permanent parking lot in connection with one’s private business is not “a proper viatic use of the highway” (40 C.J.S. Highways § 233 a, p. 247; 60 C.J.S. Motor Vehicles § 28 a, b, pp. 136, 139; 7 Am.Jur.2d (Automobiles & Highway Traffic), § 240, p. 793; Siemers v. St. Louis Electric Terminal Ry. Co., 343 Mo. 1201, 125 S.W.2d 865) and it would seem to follow as a matter of course that the loss of any such parking right is not a separate compensable item of damages. This of course is aside from the fact that in this proceeding in condemnation these instructions were not plainly misleading and confusing (29 C.J.S. Eminent Domain § 290 b, p. 1305) and therefore prejudicially erroneous.

And for all the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

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

EAGER, P. J., and STORCKMAN, J., concur.

FINCH, J., concurs in result.


source: Caselaw Access Project

license: Public Domain

text:
    J. Wilburn HAMPTON, Plaintiff-Appellant, v. Olen A. JOHNSON, Theodore O. Seiberling, and St. Joseph Lead Company, a Corporation, Defendants-Respondents.
    No. 50812.
    Supreme Court of Missouri, Division No. 2.
    Sept. 13, 1965.

      Edgar & Edgar, Ironton, for appellant, J. Wilburn Hampton.
    Smith & Colson, by David L. Colson, Farmington, for respondent, Olen A. Johnson.
    Joseph H. Mueller, Moser Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondents Theodore O. Seiberling and St. Joseph Lead Co.
   BARRETT, Commissioner.

On January 20, 1961, at 2:15 in the afternoon, the plaintiff-appellant, J. Wilburn Hampton, was a passenger in a Ford automobile being driven by M. B. Mack in a southerly direction on U. S. Highway 61 in Jefferson County. About one mile north of Barnhart Mack’s automobile was involved in a collision with two other vehicles, first a pickup truck traveling north on the highway, driven by the respondent Johnson, and subsequently from the rear by a Chevrolet sedan traveling south and driven by Ted Seiberling who had been on a mission for his employer, the respondent St. Joseph Lead Company. The four-lane pavement was snow covered and slushy. It is only necessary to briefly note the circumstance of the multiple vehicular collisions. Mack said that he came over a hill and had pulled out into the passing lane to go around a station wagon. He was traveling at a speed of 40 to 45 miles an hour. As he started around the station wagon about 200 yards away Johnson’s pickup began “to slide” over the center line and so he “let up on the gas” and started pulling to the right-hand traffic lane but “I didn’t make it all the way back and about that time I saw the pickup truck slide, sliding again. At that time it was right in front of me and there was nothing I could do but hit.” Johnson said that in traveling north at 30 to 40 miles an hour he had passed an automobile approximately “200 yards back” and when he tried to get back into the curb or driving lane he “got in a slide and I couldn’t quite make it.” He says that he hit a rut, but “don’t know if I slid across the line or not.” Nevertheless his truck “slid” 30 feet to the left “in the general direction” of the southbound lane and the left rear side of the truck struck Mack’s automobile and Mr. Hampton was thrown into the windshield. Seiberling saw the pickup skid “clear across the highway into the path of the blue Ford” which was traveling ahead of him the distance of 50 to 60 yards. He says that when the pickup and Ford collided “why, it bounced and spun and then stopped, oh, roughly at right angles to our line of traffic.” Seiberling applied his brakes but his Chevrolet “kept going right on straight and collided with the left rear end of the blue Ford.” In describing how Hampton was injured Mack said that after the pickup and his Ford collided Hampton “was slumped in the front seat after the first part, after having gone through the windshield. * * * He was slumpin’ in the front seat after having went through the windshield.” Seconds later, there was a second collision, his automobile was struck from the rear, “Well, it seems that Hampton, whenever the car went forward, Hampton tried to go through the windshield again and back in the front seat.”

In these circumstances and upon this proof Hampton instituted this action against Johnson, Seiberling and St. Joseph Lead Company and sought $25,000 damages for his resulting personal injuries. In a single instruction he submitted Johnson’s liability upon the primary grounds of excessive speed, lack of control and driving on the wrong side of the highway, and Seiber-ling’s and the lead company’s liability upon the primary hypothesis of excessive speed, lack of control and failure to maintain “the proper interval” of vehicles traveling on the highway. The jury returned a verdict in favor of all defendants and, as indicated, Hampton appeals and makes but one assignment of error and that is directed against two instructions, three and five, given at the request of respondent Johnson.

Briefly, instruction 3 told the jury that the charge against Johnson was “negligence” which was “not in law presumed” hut must be established by proof and “the mere fact standing alone” that his automobile skidded and slid across the center line into Mack’s automobile “does not necessarily establish negligence on the part of the defendant, Johnson.” Thereafter the instruction hypothesized the physical surroundings, the snowy pavement and direction of vehicles, and Johnson’s exercise of the highest degree of care, a speed that was not negligent and finally “if you find that defendant Johnson’s automobile, without negligence on defendant Johnson’s part, began to slide and skid, and slid and skidded out of control across the center line * * * and if you find that defendant Johnson * * * was unable to avoid the collision after his car began to slide and skid, then you are instructed that your verdict shall be in favor of the defendant, Johnson.” Instruction 5 told the jury “that the mere fact standing alone that there was an accident” did not entitle plaintiff to a verdict, he had to prove negligence as set out in other instructions. Then the jury was told that a verdict could not be based on surmise and speculation.

It is said that the effect of these instructions was to tell the jury that “plaintiff could not recover unless one of the co-defendants was negligent” and it is urged therefore that the instruction was manifestly prejudicially erroneous to the plaintiff “in ignoring and excluding from the jury all the issues in regard to the negligence of one defendant who was independently charged with specific acts of negligence allegedly contributing, in whole or in part, to plaintiff’s injuries.” Elaborating and more specifically it is said that these instructions “ignore the issue of the alleged concurrent negligence of the defendant Seiberling and tell the jury that plaintiff could not recover unless they found that Johnson was negligent.” It is said that logically, according to these instructions, if the jury found that Johnson was not negligent “they must find for the other defendant also.” It is particularly urged that these instructions are improper and erroneous in a three-car collision case such as this.

In the first place neither the circumstances nor the instructions are comparable to the principle involved in the leading case of Levins v. Vigne, 339 Mo. 660, 98 S.W.2d 737. In that case Levins (shortly after midnight, January 1, 1932) “was prostrate in the center of the street in a ‘crouched position’ ” when the defendant drove down the street and dragged Levins beneath his automobile for some distance and seriously injured him. The defendant claimed that Levins had previously been struck by another automobile and left in the street and accordingly offered an instruction hypothesizing the fact and said that if he (Levins) “received injuries therefrom prior to being picked up, carried and dragged by the defendant’s automobile, which could have caused his death, or if you are unable to determine from the evidence, which injuries, if any, caused his death” then a verdict could not be returned against defendant on “the mere supposition or conjecture” that the injuries from the defendant’s dragging him was “the sole cause of his death.” It was first said that “(i)t is doubtful that there is any substantial evidence” of the basic underlying fact hypothesis that Levins had been struck by another automobile. In any event, of the refused instruction the court said “the instruction seems to lay down the proposition, or convey the direction, that the jury could not find for plaintiff, though they believed defendant negligently ran his automobile over and against Levins, unless they could separate the injuries resulting from defendanfs negligent act from the injury or injuries sustained when struck by the supposed first automobile and further find that such injuries were the sole cause of death. The instruction excludes liability on the part of defendant for negligence which caused an injury or injuries contributing to, or combining or concurring with, the other prior injuries to cause death."

The emphasized language may be sufficient to distinguish the two cases but if not the instructions here, 3 and S, were not concerned with separate liability for separately inflicted injuries. In this case as indicated in the beginning there was no question as to the sequence of events and the facts of the occurrences are all but admitted. In this case these instructions do not plainly “lay down the proposition, or convey the direction” that liability may not be found against Seiberling and his employer unless liability is first found against Johnson. Neither Seiberling nor any circumstance connected with him is specifically mentioned. Aside from their legal correctness these instructions deal with and concern Johnson only. They do not, it is true, deal with the concurrent negligence of Seiberling and his employer but they do not in express terms exclude their concurrent negligence and liability. Then too in instruction one, in addition to the indicated hypotheses, the details upon which separate liability of each defendant could be separately found were fully set forth and then as to the Seiberling collision the instruction said “or as a direct result of this collision combined with the previous collision between the vehicle of the defendant Johnson and the vehicle in which the plaintiff was a passenger, the plaintiff was injured.” Instruction 2 told the jury that “if you find the issues in favor of Plaintiff and against the Defendants, or against one or more of them, as submitted in other instructions herein” damages were to be fixed in a certain manner. Instruction 6 told the jury that if they found in accordance with other instructions “that the Defendant Johnson and the Defendant Seiberling, or both of said Defendants,” were negligent in the operation of their automobiles and that Mack was also negligent in the operation of his automobile the verdict nevertheless should be for the Plaintiff “and against one or more of the other Defendants, in accordance with the other instructions of this court.”

Thus considering all the instructions in a series it does not appear that instructions 3 and 5, unlike those offered in Harding v. Kansas City Public Service Co., Mo.App., 188 S.W.2d 60, 66, could “mislead the jury in that they totally ignore the doctrine of concurring proximate causes.” In McGhee v. Jones, Mo., 336 S.W.2d 722, another three-vehicle collision, the circumstances were fully set out and in conclusion it was said, “The plaintiff very carefully gave instruction 4 which informed the jury that if they found that the negligence of McGhee and the negligence of Jones ‘directly concurred, combined and contributed to cause plaintiff to sustain injury’ a verdict should be returned against Jones and so, reading the instructions together, there was no possibility of the implication that there was no liability for Jones’ initial or concurrent negligence.” And finally, this was a simple elemental automobile negligence case and while three separate vehicles and five persons were involved there was virtually no dispute as to the essential facts. The issues were simple and the ultimate problem upon this appeal is whether by reason of these two instructions “error was committed by the trial court against the appellant, and materially affecting the merits of the action.” RSMo 1959, § 512.160 (2), V.A.M.S.; Civil Rule 83.13, V.A.M.R. And, as indicated, in summary upon this record it may not be said that these instructions, particularly in view of the simplicity of the issues, were manifestly prejudicial to the plaintiff’s trial in any respect (Knox v. Weathers, 363 Mo. 1167, 1178, 257 S.W.2d 912, 918; McGhee v. Jones, supra) and accordingly the judgment is affirmed.

PER CURIAM.

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

All of the Judges concur.

STOCKARD and PRITCHARD, CC., concur.


author: STORCKMAN, Judge.

text:
    The CONSUMERS COOPERATIVE ASSOCIATION, a Corporation, Appellant, v. Edwin L. McMAHAN, Defendant, Howard C. Blue and Paul A. Jordan, Trustees for the Kansas City Underground Industrial Center, Inc., Respondents.
    No. 50968.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 13, 1965.

      Rodger J. Walsh, Kansas City, Rafter, Biersmith, Miller & Walsh, Kansas City, of counsel, for appellant.
    William H. Sanders, Dean F. Arnold, William W. La Rue, Kansas City, George W. Harlan, Jr., Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for respondents.
   STORCKMAN, Judge.

This is an action for damages in the sum of $18,808.45 alleged to have been suffered when baling wire stored with the Kansas City Underground Industrial Center, Inc., became rusty. The Kansas City Underground Industrial Center, Inc., was a licensed warehouse company incorporated under the laws of Missouri. Its charter was forfeited,' however, for failure to file annual reports, and the action proceeded against the last officers and members of the board of directors as trustees for the defunct corporation. One of them, Edwin L. McMahan, was not served and the action was dismissed as to him at the trial. The trial proceeded against the remaining defendants, Howard C. Blue and Paul A. Jordan. The tifial court overruled the defendants’ motion for a directed verdict filed at the close of all of the evidence. The jury’s verdict was for the defendants. The plaintiff’s motion for a new trial was overruled and it appealed.

The points relied on by plaintiff are that the trial court erred in giving defendants’ instruction No. 3 relating to the burden of proving negligence and defendants’ instruction No. 4 regarding contributory negligence, and in refusing to give instructions Nos. 8, 9 and 10 offered by the plaintiff. The errors assigned, however, become immaterial in the view we take of the case which is that the evidence in its most favorable aspect would not support a verdict for the plaintiff.

The plaintiff’s action is based on negligence. The petition alleges that “the plaintiff entered into an oral contract with said warehouse corporation under and by the terms of which said warehouse corporation agreed to store as a duly licensed public warehouseman 5,543 cartons of baling wire for said plaintiff”; that the agents of the warehouse company represented to the plaintiff “that the' humidity in its storage facilities was such that no rust would develop on said baling wire” when in truth and fact the storage facilities were totally inadequate for the storage of baling wire; that the defendants “did negligently store said baling wire, the negligence consisting of a failure to provide low humidity storage facilities”; and that the warehouse corporation did not exercise that degree of care which a reasonably careful man would exercise in regard to similar goods of his own.

The answer of the defendants Blue and Jordan admitted that the plaintiff stored the baling wire in the warehouse but denied each and every other allegation of the petition. The answer further pleaded contributory negligence and assumption of risk in that the condition of the warehouse and its suitability for the storage of the baling wire was known to the plaintiff prior to and during the time the wire was stored in the warehouse.

There was no essential conflict in the testimony of the witnesses. The defendants offered no evidence. The evidence adduced disclosed that the defendants, Mc-Mahan, Blue, and Jordan, had organized a licensed warehouse company under the name of Kansas City Underground Industrial Center, Inc. Mr. McMahan, the president, had been in the food brokerage and transportation business. Mr. Blue, the vice-president, and Mr. Jordan, the secretary-treasurer, were both connected in an official capacity with the Kansas City Quarries and Kansas City Concrete Company. The warehouse company leased an underground limestone quarry or artificial cave which it proposed to use for storage purposes. The cave located in Jackson County was about 100 feet underground; it had a constant temperature of about 55 degrees and occupied an area of about 60 acres.

Mr. McMahan called on Ray J. Barry, plaintiff’s director of Farm Supplies Division, and solicited storage business. As a part of its business, the plaintiff bought and sold large quantities of baling wire. At the time Mr. McMahan called on Mr. Barry in 1959, the plaintiff had purchased from a manufacturer in Belgium approximately 18,000 cartons of baling wire. The delivered price was cheaper than that obtainable in the United States. The wire was transported by ship from Belgium to the Port of Houston, Texas, and from there to Kansas City overland by truck. All but about 5500 cartons was sold immediately or put in the plaintiff’s own storage facilities. Mr. Barry became interested in the artificial cave as a storage place for the remaining cartons of baling wire. The discussion between him and Mr. McMahan, to the extent necessary, will be mentioned later. Shortly after the first contact, Mr. Barry and two other representatives of the plaintiff went to the cave, inspected it, and decided to store the remainder of the baling wire there. This was done in July or August 1959. In September 1959 Mr. Mc-Mahan had a nervous breakdown. About June 1, 1960, some of the cartons were taken from storage and sent to a customer in Nebraska and the wire was found to be spotted or streaked with rust to an extent that it was not usable in a baler. The wire remained in the cave until December 1960 or January 1961 when the plaintiff sold it at a reduced price and brought suit for the loss.

The plaintiff’s verdict-directing instruction was quite general but we will set it out for whatever light it may shed on the theory by which the plaintiff sought to impose liability on the defendants.

It is as follows:

“The Court further instructs the jury that if you find and believe that on or about August 31, 1959, the plaintiff entered into an agreement with the Kansas City Underground Industrial Center, Inc., a warehouse corporation, by which the said warehouse corporation accepted for storage as a duly licensed public warehouseman 5,543 cartons of bailing wire for the plaintiff, and if you find said warehouse corporation did not exercise ordinary care in the storing of said bailing wire in that said warehouse corporation failed to exercise that degree of care which a reasonably careful man would exercise in regard to similar goods of his own then your verdict must be for the plaintiff and against the defendants the statutory trustees of said warehouse corporation, provided the plaintiff exercised ordinary care under the circumstances mentioned in evidence.”

The evidence shows that plaintiff’s agents who inspected the storage facility knew it was a mined-out quarry in a rough condition with limestone walls and ceilings with pillars of limestone left in place for support ; that the floors were dirt and limestone covered with dust. They further knew there was no heat in the quarry or no mechanical means of controlling humidity. The baling wire was not galvanized but it had a light film of oil; it was sealed in waxed paper and then enclosed in a double carton which was sealed. The cartons of wire were placed in the storage cave in this condition and there is no showing that the warehouse company was obliged to inspect the wire in the cartons or to service it in any manner while it was in storage. In April 1960, Cecil Brainard, the manager of the plaintiff’s Internal Audit Department, took a physical inventory of the merchandise in storage. He testified there was no visible deterioration of the cartons and there was no deterioration due to moisture. So far as the evidence shows, the temperature and atmospheric conditions in the quarry remained the same as it was when plaintiff’s agents inspected it before deciding to use it for storage.

To constitute actionable negligence three essential elements must exist: (1) a duty or obligation on the defendants’ part to protect the plaintiff or his property from injury, (2) a failure to discharge such duty, and (3) injury proximately resulting from such failure. Atcheson v. Braniff International Airways, Mo., 327 S.W.2d 112, 117 [8]; Wolfmeyer v. Otis Elevator Co., Mo., 262 S.W.2d 18, 21[1]; Whealen v. St. Louis Soft Ball Ass’n, 356 Mo. 622, 202 S.W.2d 891, 894 [7]. Our first concern is to determine the duty or obligation imposed on the defendants by the contract or storage agreement. Specifically a duty or obligation to protect the baling wire from becoming rusty must be established.

In some parts of the testimony and especially its verdict-directing instruction it appears that the plaintiff was depending on a duty or obligation imposed by law, that is, by Chapter 406, RSMo 1959, V.A.M.S. dealing with uniform warehouse receipts and related matters. Section 406.030 prescribes the essential terms of warehouse receipts, none of which are relevant in this case. Section 406.040 provides the receipt may contain other terms and conditions if they are not contrary to the requirements of the chapter and do not impair the warehouseman’s duty of care. In case the warehouseman fails or refuses to deliver the property on demand, § 406.090 places on him the burden of showing a lawful excuse for such refusal. This section is not dispositive of this case because the property was delivered to the owner although it was damaged by having become rusty. Section 406.210 defines the degree of care required in case of injury but it exempts the warehouseman from liability, in the absence of an agreement to the contrary, if the injury to the goods could not have been avoided by the exercise of such care “as a reasonably careful owner of similar goods would exercise.” But again this does not prescribe the entire duty or obligation assumed by the defendants under the storage or bailment agreement. Finally, § 406.560 provides that: “In any case not provided for in this chapter, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall govern.” It is apparent that the statutes do not purport to impose absolute liability or liability without fault on the warehouseman.

“A contract of storage of property in a warehouse is generally governed as to its requisites and validity by the rules relating to contracts, particularly those relating to contracts of bailment, except to the extent that it is controlled by the statutes regulating such contracts.” 93 C.J.S. Warehousemen & Safe Depositaries § 12a, p. 406. “The construction and operation of a contract of storage are governed by the intention of the parties as derived from the terms of the agreement and as construed in the light of the circumstances surrounding the transaction, in connection with the provisions of the warehouse receipt, where one is given, and the governing statute.” 93 C.J.S., Warehousemen & Safe Depositaries § 12c, p. 408. These statements are consistent with the provisions of Chapter 406 and especially §§ 406.040 and 406.560.

Unless a warehouseman has been guilty of specific negligence contributing to the loss or injury, he is not liable for damages due to an inherent defect in the stored goods or where the goods are of such a nature that they would tend to deteriorate from natural causes. 93 C.J.S. Warehousemen & Safe Depositaries § 44, p. 468, and § 76b (2) (c), p. 520. A corollary of this rule is that a warehouseman is not, in the absence of a contract or a statute so providing, an insurer of the safety of the merchandise stored. 56 Am.Jur., Warehouses § 127, p. 378.

Turning now to a duty or obligation imposed by contract or agreement, the plaintiff relies heavily on statements made by Mr. McMahan that the atmospheric conditions in the cave were such that baling wire would not rust while in storage. Eugene A. Ross, an employee of the plaintiff engaged at the time in buying and selling steel products, testified that Mr. McMahan assured him that the humidity in the artificial cave was such that the baling wire could be safely stored in the quarry. Keith Cow-den, an employee of the plaintiff for more than twenty years, testified that Mr. Mc-Mahan told him the temperature in the cave would remain at a constant 55 degrees and that there would be no humidity problem. Ray J. Barry, director of plaintiff’s Farm Supplies Division, testified that Mr. McMahan told him that he was going to operate a licensed warehouse which would have a constant temperature of 55 degrees and would be exceptionally dry. Mr. Barry asked him if it would be suitable for storing baling wire and Mr. McMahan said that over a million pounds of soda ash was going to be stored there together with some grain. These employees of plaintiff had had extensive experience in the buying, selling and storage of baling wire. They knew that rust was a problem in storing baling wire. Mr. Barry, Mr. Cowden, and Mr. Ross thereafter went to the artificial cave and made an extensive tour and inspection of the warehousing facility. The only man they talked to at the quarry was Mr. McMahan, he was the only one they knew. No baling wire had ever been stored there. They found the facility to be a rough underground quarry with dirt and limestone floors, walls and ceilings; there was no heat and no mechanical controls of humidity. They looked for evidence of sweating on the walls and instead found a large amount of dust Sometime thereafter the plaintiff entered into the agreement to store the baling wire.

The record shows that Mr. Mc-Mahan and his associates were starting a new business in which they had had no previous experience. The statements by Mr. McMahan to the effect that the quarry would be a suitable place for storing baling wire were not representations as to a past or present fact but at most were mere expressions of opinion. The law is well settled that a representation which amounts to nothing more than an expression of opinion is not actionable. Lowther v. Hays, Mo., 225 S.W.2d 708, 713 [7-9]; Budd v. Budd, 233 Mo.App. 377, 122 S.W.2d 402, 408 [4]; Collins v. Lindsay, Mo., 25 S.W.2d 84, 89-90 [5]. See also Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, 32 [8].

Where the parties are on an equal footing and the means of knowledge is equally available to both parties, a misrepresentation or erroneous statement of fact is not actionable. Paine v. Albany Insurance Co., Mo.App., 299 S.W.2d 897, 902 [4]; Bondurant v. Raven Coal Co., Mo.App., 25 S.W.2d 566, 574 [19]. Furthermore, where a party makes his own independent investigation, he will be presumed to have been guided by what he learned and the conclusions he reached and will not be permitted to say that he relied on misrepresentations of another and that he was deceived thereby. Bayer v. American Mutual Casualty Co., Mo., 359 S.W.2d 748, 754 [8]; Wood v. Robertson, Mo., 245 S.W.2d 80, 84 [4]; Patzman v. Howey, 340 Mo. 11, 100 S.W.2d 851, 856 [4].

Plaintiff relies chiefly on Brown v. Sloan’s Moving & Storage Co., which twice came to this court by appeal, 274 S.W.2d 310, and 296 S.W.2d 20. In that case the plaintiff’s household goods were destroyed by fire while stored in one of defendant’s warehouses. A verdict was directed for the defendant at the first trial. On the first appeal, this court held that the statutes, and in particular §§ 406.090 and 406.210, imposed on the defendant the burden of proving that the fire was not due to its negligence and further that the trial court erred in refusing plaintiff’s evidence tending to show that the defendant had represented that the goods would he stored in a fireproof building equipped with a sprinkler system, that the representation was false and the plaintiff had relied on it. At the second trial the plaintiff submitted her case on two theories. One was that the defendant had failed and refused to deliver the goods on demand on which theory the defendant had the burden of proving that the fire was not due to its negligence. The other count submitted was on fraud and deceit due to plaintiff’s reliance on false representations that her household goods would be stored in a fireproof warehouse. A judgment for the plaintiff for punitive as well as actual damages was affirmed on the second appeal. The appellate decisions in the Brown case do not support the proposition that the evidence in the instant case made an issue for the jury. On the contrary, insofar as Mr. McMahan’s statements are relied on as terms or conditions of the storage agreement, the Brown opinions indicate that the representations must be of facts relied on by the bailor to his detriment.

The receipt or written agreement in this case was referred to during the trial but it was not introduced in evidence as an exhibit. However, another receipt issued to the plaintiff covering barbed wire, under the heading of “LIABILITY”, Sec. 6, on the reverse side provides: “This company assumes no responsibility for concealed damages, * * * or other inherent qualities of merchandise, or from losses by reason of defective or insufficient containers, whether occurring while goods are in storage or are being handled, or for failure to detect or remedy the same.” This receipt is one in a sheaf of papers marked and introduced by plaintiff as exhibit No. 5. The exemption of “other inherent qualities of merchandise” is consistent with rules of law referred to above. The section further provides that the company assumes no responsibility for losses arising from “any cause beyond control of this company in the exercise of the ordinary degree of care required of a warehouseman by law.”

When the baling wire was deposited in the artificial cave, it was in sealed cartons and the defendants had no opportunity to inspect the wire itself, but it may be inferred from the evidence that it had not begun to rust at that time. The underground quarry provided low-cost storage. There was no means of controlling the amount of atmospheric moisture and the plaintiff knew this; it accepted the storage facility in its natural state. If the rusting of the wire was caused by moisture in the atmosphere of the cave, the mistake in judgment, lack of due care, or whatever it may be called, was fully participated in by the plaintiff’s experienced representatives. They could not and did not rely on representations by the defendants. The contract of storage did not impose a duty or obligation on the defendants to prevent rust due to normal atmospheric conditions in the underground storage facility.

The defendants’ motion for a directed verdict included grounds that the plaintiff had failed to prove sufficient facts to constitute a cause of action and that the plaintiff was guilty of negligence that directly contributed to the injury. The motion should have been sustained so any er-ro" in the giving or refusing of instructions is of no consequence.

Accordingly the judgment for the defendants is affirmed.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    COMMERCIAL CREDIT CORPORATION, Appellant, v. A. BLAU, d/b/a Brush Creek Motors, Respondent.
    No. 50963.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 13, 1965.

      Charles F. Lamkin, Jr., James B. Lowe, Kansas City, Kuraner, Oberlander, Lam-kin, Dingman & O’Laughlin, Kansas City, of counsel, for plaintiff.
    Thomas J. Conway, Jr., E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   PRITCHARD, Commissioner.

This is a replevin action by which plaintiff sought the possession of six automobiles upon which it had automobile dealer’s “floor plan” mortgages which had been filed for record. Defendant denied that plaintiff had any right or title in the automobiles and counterclaimed for actual and punitive damages for their alleged wrongful seizure by plaintiff under its writ of replevin.

The trial was to a jury. The trial court directed a verdict of possession for plaintiff as to one automobile, a 1957 Oldsmobile, sold to plaintiff’s dealer (R. C. Woody of Clinton, Missouri) by Albert J. Yonke. Defendant cross-appeals upon the judgment against him on the directed verdict. The trial court also directed a verdict for defendant for $2,195.00 in damages for the taking by plaintiff of a 1957 Ford Country Sedan sold by Ted and Ruth Roush of Warsaw, Missouri, to R. C. Woody. Upon the remaining portions of defendant’s counterclaim the jury returned a verdict for defendant of actual damages in the amount of $16,500.00 and punitive damages of $40,000.00. We have appellate jurisdiction by reason of the amount in dispute exceeding $15,000.00. Const.Mo.1945, Art. V, § 3, V.A.M.S.

The principal questions before us are whether (1) the mortgagor, Woody, had legal title to five of the automobiles so as to be able to grant plaintiff a mortgage lien thereon which gave it a superior right of possession to that of defendant by reason of his purchase, and (2) whether plaintiff’s “floor plan” mortgage which was filed for record was valid and gave it a superior right of possession to defendant, a used car dealer, who purchased them from car dealer R. C. Woody, who was allowed to retain possession of all' automobiles and sell them “at retail” in its regular course of business for not less than the amount of respective mortgages thereon.

The business of plaintiff was and is the purchase of automobile, appliance, automotive equipment installment financing paper from dealers; the making of direct public loans through a separate subsidiary corporation; and the financing of automobiles for dealers’ floor plan stocks.

Defendant, A1 Blau, operated a used car business at 5900 Troost, Kansas City,.Missouri, under the registered fictitious name, “Brush Creek Motors.”

Prior to July 17, 1959, when plaintiff’s petition was filed and the writ of replevin thereon was issued and executed against six automobiles in Blau’s possession, plaintiff had done financing and floor plan mortgages for Woody for about two years. Woody was the Oldsmobile-Cadillac automobile dealer in Clinton, Missouri. The transactions with Woody were made by plaintiff’s District Representative, Wayne Hughes. His procedure was to ascertain what automobiles Woody desired to floor plan, check them for physical condition and to compare the serial and motor numbers of automobiles with those upon titles thereto in Woody’s possession. He would then complete the floor plan mortgage papers and promissory notes for the amount agreed to be loaned, the papers would be executed by Woody and a sight draft upon plaintiff through its bank would be delivered to Woody in the amount of the loan. Hughes would also check the titles to ascertain ownership and to see that there were no liens thereon.

The six automobiles here involved were purchased by Blau from Woody, and by use of the titles furnished him by Woody, transferred by Woody’s “Re-assignment by Registered Dealer only” on the reverse side of the titles, Blau obtained a new title to each running to Brush Creek Motors. Blau’s titles were left by him at the Suburban Bank of Kansas City which loaned him funds on a floor plan mortgage for his automobile inventory purchases. With more particularity we list the six automobiles, with pertinent dates of title transfers and filing of plaintiff’s mortgages for record in the office of the Recorder of Deeds for Henry County, Missouri, as follows:

The mortgages taken by plaintiff from Woody on the above automobiles provided for a warranty of clear title, that the dealer was the absolute owner thereof, with full right and power to mortgage same, and that dealer would not remove merchandise from the described premises without mortgagee’s consent. Further provisions for care of the mortgaged property were included, and the clause was inserted: “Dealer may sell Merchandise at retail, in its regular course of business, for not less than the respective Mortgage Debts mentioned above. However, upon any sale by Dealer, Dealer shall forthwith account for and deliver the proceeds thereof to Mortgagee, for application upon the Mortgage Debt in respect to Merchandise so sold, and, until such accounting and delivery, Dealer shall hold the entire proceeds, in form as received in trust for Mortgagee, separate and apart from Dealer’s own funds.”

For the purchase of said six automobiles Blau paid Woody by checks (which cleared Blau’s bank) a total of $13,450.00, and the titles thereto which had also remained in Woody’s possession were executed on the days of sale and delivered to Blau.

In late June, 1959, plaintiff discovered in the course of its practice of checking dealers’ mortgaged merchandise that several cars were missing from Woody’s lot ar.d he had not accounted to plaintiff for any sales moneys. Checks given by Woody for the amounts of his mortgages were returned by his bank marked “no account.” Apparently some other creditor of Woody had seized whatever amounts were in his account at the bank. Plaintiff caused Woody to execute a further chattel mortgage on other property for some $42,000.00, and a replevin suit was later filed therefor in United States District Court in Kansas City. Woody’s bankruptcy proceedings intervened in that action and nothing was realized by plaintiff.

Fictitious purchaser information was given plaintiff by Woody as to the missing automobiles. Later one of plaintiff’s employees discovered at least one of the automobiles was on Blau’s used car lot in Kansas City. Upon plaintiff’s learning that fact it caused a replevin action for 12 automobiles to be instituted, and upon execution of the writ of replevin, the instant six automobiles were delivered to plaintiff and were by it sold.

The acknowledgments on the certificates of titles of five of the original automobile owners were taken by Jerry Woody, notary public, who is a son of R. C. Woody and who worked for him at the Clinton dealership. Yonke’s acknowledgment was taken by a Jackson County notary public on March 1, 1959, and Woody Motor Company’s transfer thereof to Blau was on June 20, 1959, being then notarized by Jerry Woody. The evidence was that the dates of acknowledgment on the title transfers were taken sometime after the sales were made by the owners of the automobiles, except Yonke. Jerry Woody so testified and also that it was his practice to wait until the automobiles were resold by Woody to affix his signature and notarial seal. With the exception of Yonke, on each of the title certificates the dates of acknowledgment of the original owners to Woody are the same as the dates of acknowledgments of Woody to Blau, i. e., Harkness, June 24, 1959; Gover, June 20, 1959; Walker, June 24, 1959; Roush, June 20, 1959; and Miner, June 24, 1959. The testimony of plaintiff’s representative, Hughes, is that he did not check the titles as to notarization by owners when he inspected them for floor plan loan purposes. From the testimony of Jerry Woody and the dates of the acknowledgments of prior owners on the titles the jury could find that the notarizations were missing at the time of Hughes’ inspfection.

The testimony of Dr. and Mrs. Harkness on the trade of their 1958 Cadillac was that Mrs. Harkness handled the transaction, and that Dr. Harkness remained in War-rensburg, Missouri. Mrs. Harkness testified that her husband did not appear before Jerry Woody, the notary public at Clinton, to give his acknowledgment thereon but he signed the title in Warrensburg. The testimony of Mr. Gover was that his wife, Fayta, signed his title at their home, and he then took it to Woody Motor Company where he signed it. Mr. and Mrs. Miner both signed their title, but in the wrong place. Their signatures appear on the title in the place where the dealer is supposed to sign; and in the seller’s signature place are two names written in but which the Miners testified were not theirs, but for which Jerry Woody took the acknowledgments.

The evidence here is clear that at the times plaintiff took the mortgages from Woody upon the Harkness, Gover, Walker, Roush and Miner automobiles, its representative, Hughes, inspected the certificates of title to make certain, as Hughes testified, that there were no liens and “to determine that the title and ownership on the vehicles have been assigned to the dealer and the dealer actually owns the property before you can — before he can take a mortgage.on them.” The jury could find further that at the times of Hughes’ examination of the certificates of titles, although they were signed by the original owners, none of these four titles was acknowledged before a notary public in accordance with the form thereon prescribed by the Director of Revenue and § 301.210, RSMo 1959, V.A.M.S. Such acknowledgments on automobile titles have been repeatedly held to be mandatory. State ex rel. Connecticut Fire Ins. Co. of Hartford, Conn. v. Cox, 306 Mo. 537, 268 S.W. 87, 37 A.L.R. 1456; Quinn v. Gehlert, Mo.App., 291 S.W. 138, 139; Boyer v. Garner, Mo.App., 15 S.W.2d 893, 894; Perkins v. Bostic, 227 Mo.App. 352, 56 S.W.2d 155; Universal C. I. T. Credit Corp. v. Griffith Motor Co., Mo.App., 243 S.W.2d 814, 817. An unacknowledged assignment of a certificate is not sufficient to vest legal title. Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975. “The statute upon which those decisions (citing State ex rel. Conn. Fire Ins. Co. v. Cox, supra, 306 Mo. 537, 268 S.W. 87, 37 A.L.R. 1456, and Isaacson v. Van Gundy, Mo.App., 48 S.W.2d 208) are based is drastic, mandatory, and intended as a police regulation in the interest of the public welfare to prevent traffic in stolen automobiles.” Robertson v. Snider, Mo.App., 63 S.W.2d 508, 509. (Parentheses added.)

In the case of Universal C. I. T. Credit Corp. v. Griffith Motor Co., supra, dealer Moore took Pruitt’s car to sell on a commission. At the time, Pruitt signed the title but did not acknowledge it. Plaintiff’s agent prepared a mortgage from Moore to it, and saw that the title to the automobile was in Pruitt, signed by him but not acknowledged. The court said, loc. cit. 243 S.W.2d 817, “The transfer of title, not acknowledged by Vernie Pruitt, was brought to the attention of plaintiff’s agent at the time of the preparation of the mortgage and was a defect sufficient to put plaintiff upon inquiry to ascertain the true facts which would show that Moore had nothing to mortgage. Therefore, the mortgage lien relied upon by the plaintiff in this case was not a valid lien and the court was justified in finding for defendant. Plaintiff must rest upon the strength of its own title and not upon the weakness of the defendant as held in the Pearl case [Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975] cited herein.”

The title certificates which plaintiff’s representative examined as to ownership were at that time defective upon their faces (except the Yonke certificate). They showed no title in Woody such as he could then mortgage. Such facts put Hughes on inquiry, so that he could take the proper steps to have the titles properly assigned to Woody by the former owners. This he did not do, and it follows that no legal lien would he secured to plaintiff. The titles of Blau, on the contrary, were good on their face, and we add that they were certainly sufficient to cause the Director of Revenue to issue new titles to Brush Creek Motors upon Blau’s application. Benanti v. Security Ins. Co., infra. Since the issue at this point is upon the theory of who had the better title and right of possession (aside from the issue of the validity of the floor plan mortgage below discussed as to the Yonke automobile), we rule thereon that defendant must prevail. Mutual Finance Company v. Goodman Finance Company, Mo.App., 367 S.W.2d 31. At the time of the mortgage, the titles not being properly assigned, plaintiff had no legal lien which up to the time the titles were assigned to Blau would have given it a right to have the titles assigned to itself upon foreclosure, or to a purchaser at any foreclosure sale. On the facts of this case, Blau had the better title and right to possession to the five automobiles above mentioned. See Peper v. American Exchange Nat. Bank in St. Louis, 357 Mo. 652, 210 S.W.2d 41, 45 [3, 5]; Wills v. Shepherd, 241 Mo.App. 102, 231 S.W.2d 843; and Seward v. Evrard, 240 Mo.App. 893, 222 S.W.2d 509, 513, and cases cited; Bank of Ionia v. Bank of Eldon, Mo.App., 365 S.W.2d 770, 773.

Plaintiff’s argued theory that it had at least an equitable mortgage on the five automobiles which gave it a superior right of possession as against Blau avails it nothing. No doubt such a theory would be good in an action in replevin between the parties to the mortgage, or those who had actual notice of the transaction. 14 C.J.S. Chattel Mortgages § 48, p. 653; and compare Langford v. Fanning, Mo.App., 7 S.W.2d 726, 728 [1]. No doubt also that such equitable mortgage, being a “special interest,” would be good as against a trespasser, or one who had no title or right of possession whatsoever. Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764, 767, 94 A.L.R. 941; M.F.A. Cooperative Ass’n of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 285; National Bond & Investment Company v. Mound City Finance Company, Mo.App., 161 S.W.2d 664, 666. Here, Blau had certificates of title, duly assigned to him, which were valid on their face. He was certainly not a trespasser, and he was not one without titles or without any right to possession of the automobiles. Blau paid a valuable consideration for all of the automobiles in question. He had no actual notice of plaintiff’s mortgages on the five automobiles, and those mortgages, because Woody had no legal title to mortgage at the time they were taken, were not constructive notice to Blau by reason of their being filed for record.

The matter of Blau’s actual knowledge under the facts of the rights of third parties in the automobiles was submitted to the jury for a finding. The jury could have reasonably found that Blau in good faith thought that Woody purchased the automobiles from his vendors on the same day he sold them to Blau; and that there was nothing about the title certificates themselves which would have put Blau on notice and inquiry of any rights of third persons or any infirmity of the transfer from Woody’s vendors.

With respect to the Roush automobile, the date of filing of plaintiff’s mortgage was after Woody’s sale thereof to Blau, so in no event could that mortgage constitute constructive notice to Blau. Hussey v. Ellerman, Mo.App., 215 S.W.2d 38, 42 [7, 8]; § 443.460, RSMo 1959, V.A.M.S.

Plaintiff contends that by reason of the fact that Woody invested his son, Jerry, with a general power of attorney to execute mortgages and instruments disqualified Jerry to act as notary public on the certificates of titles because of having a beneficial interest. The only testimony on the subject of the power of attorney was Jerry’s testimony. He testified that he had never exercised the power, and that he was only a salaried employee. “Ordinarily, unless otherwise provided by statute, general employment or employment as agent or attorney in a matter gives a notary no such interest as to invalidate an official act done by him.” 66 C.J.S. Notaries § 6, p. 618. The contention is ruled against plaintiff, as is the further matter that two of the certificates of title being assigned “Woody Motor Company by Nancy Skaggs” and one “by Naomi Smith” rendered them void. In Benanti v. Security Ins. Co., 224 Mo.App. 410, 27 S.W.2d 69, 71, a certificate of title was endorsed “A. E. Hutchings, Per H. B. Hutchings.” It was held that there was a legal transfer of ownership of the car, the court saying, “In the case at bar the office of the secretary of state was doubtless satisfied with the proof of ownership by plaintiff, since it accepted it and issued the certificate of transfer and registered the same.” So here, Blau’s assignment from Woody was sufficient to cause the Director of Revenue to register the transfer and to issue titles, not only on the two assignments by agents, but also on all six assignments.

Plaintiff contends that Instruction No. 3A, given on behalf of Blau, was error. That instruction submitted for a finding the infirmities in Woody’s title transfers from his vendors at the time of the mortgages. Plaintiff’s grounds in attacking the instruction are that (1) it incorrectly states the law; (2) it constitutes a peremptory instruction to find for defendant; (3) it fails to define the right of possession; and (4) it contradicts plaintiff’s Instruction No. 2. General objections only were made by plaintiff at the close of the case to all instructions. None of the allegations of error in Point II are set forth in plaintiff’s motion for new trial, except (4) above. They are not preserved for appeal. Presenting questions for the first time on appeal presents nothing for review. Civil Rule 83.13, V.A.M.R.; Georg v. Koenig, Mo., 370 S.W.2d 356; Fields v. Missouri Power and Light Co., Mo., 374 S.W.2d 17. The remaining allegation (4) is too general to present anything for review. Allegation (4) does not state why or in what manner Instruction No. 3A contradicts Instruction No. 2. It is therefore insufficient. Swope v. Emerson Electric Manufacturing Co., Mo., 303 S.W.2d 35, 41 [7, 8]. Plaintiff’s Point II is overruled.

We arrive now at Blau’s cross appeal for which he claims as error the trial court’s direction of a verdict (of possession) for plaintiff upon the Yonke car, and the trial court’s refusal to give his Instruction No. 20. That refused instruction is to the effect that if the jury found in reference to all six of the automobiles purchased by Blau the plaintiff gave its permission and consent to Woody to retain possession of the six automobiles, and gave its consent and permission to Woody to sell said automobiles to the public generally, and that defendant purchased the automobiles on two different dates mentioned in the instruction, and paid the purchase price therefor, and defendant was rightfully in possession of the automobiles on July 17, 1959, then plaintiff was not entitled to the exclusive possession of any of the automobiles, and the taking thereof was wrongful and unlawful, and the jury should find in favor of defendant upon his counterclaim and against plaintiff on its petition.

The provision in plaintiff’s chattel mortgage was specifically that Woody could sell the mortgaged automobiles in his regular course of business at retail. The italicized words could mean only that sales could be made to those persons of the buying public who were consumers of the merchandise. Those persons were the only ones who could purchase the mortgaged automobiles free of plaintiff’s lien. By inserting the permission clause in its mortgage plaintiff, as it had a right to do, has expressly recognized the general rule that members of the buying public are protected where a mortgage gives. permission to the mortgagor to retain possession and sell merchandise in the usual or regular course of business. In such case there is a waiver of the mortgage lien. 15 Am.Jur.2d Chattel Mortgages, §§ 150, 189, pp. 320, 357; Annotations, 97 A.L.R. 648; 73 A.L.R. 236; 14 C.J.S. Chattel Mortgages § 262, p. 874; Moffett Bros. & Andrews Commission Company v. Kent, Mo., 5 S.W.2d 395, 400 [1-4]; Morris Plan Company v. Universal Credit Company, 237 Mo.App. 365, 168 S.W.2d 136, 140 [7]; Bordman Investment Company v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72, 76 [4]. Although it may he that plaintiff, a large financier under floor plan arrangements for dealers, was aware of a general custom and practice of dealers to sell and purchase automobiles among themselves “for convenience” (see P & E Finance Company v. Stonecipher, Okl.Sup., 386 P.2d 765, 768), Blau himself was also aware that it is customary for dealers to floor plan their automobiles on hand. Thus, Blau could not ignore his own knowledge and claim the benefit of plaintiff’s knowledge of dealer-to-dealer transactions. It may well be here that plaintiff sought specifically to avoid the practice of dealers trading among themselves by inserting the “retail sale” limitation in its mortgages. In any event, Blau could have protected himself by inspecting the mortgage on record of the Yonke automobile (of which he had constructive notice) to ascertain if Woody had the right to sell it. Universal C.I.T. Credit Corporation v. Evans, 234 Ark. 133, 350 S.W.2d 606.

We do not adopt the construction of the words “at retail” so that it would include a wholesale dealer-purchaser, who purchases for resale, as contained in the Oklahoma case, P & E Finance Company v. Stonecipher, supra, or Commercial Credit Corp. v. General Contract Corp., 223 Miss. 774, 79 So.2d 257. We hold that the words here used do not include a dealer-purchaser who acquires an automobile for resale such as Blau here, who is therefore not protected from plaintiff’s mortgage lien under the above-stated general rule on consent to sale of mortgaged merchandise. The case of Colonial Finance Company v. McCrate, 60 Ohio App. 68, 19 N.E.2d 527, is close but not controlling to the facts and law in this case, although the decision there turned upon a differentiating statute on certificate of title assignments between dealer-to-dealer sales and dealer to a member of the buying public (so distinguished in General Credit Corp. v. First National Bank of Cody, 74 Wyo. 1, 283 P.2d 1009).

Refused Instruction No. 20 did not allude in any manner to the limitation in the consent to sell (at retail only) in plaintiff’s mortgage. It merely required a finding that Woody had permission to sell automobiles to the public generally, which, as we have held above, did not include dealer Blau. It was therefore not error to refuse the instruction.

There was no evidence adduced which would create a jury issue as to the right of possession in plaintiff of the Yonke automobile. Plaintiff established that it had a valid mortgage filed of record on that automobile, which as a matter of law would be constructive notice to Blau as to Woody’s right to sell it only at retail. There was no evidence adduced which would tend to show that there was an implied authority in Woody to sell to dealers such as Blau free of the mortgage lien. There was no showing that any mortgaged automobile was sold to any dealers prior to the six in question. Even if there had been sales of automobiles upon which plaintiff had mortgages, an implied waiver of lien could come about only by a further showing that plaintiff had knowledge of other sales and acquiesced therein. 7A Blashfield, Cyclopedia of Automobile Law and Practice, § 4724, p. 66; Moffett Bros. & Andrews Commission Company v. Kent, supra; 14 C.J.S. Chattel Mortgages § 262 b, p. 877 et seq. See Bernhagen et al. v. Marathon Finance Corporation et al., 212 Wis. 495, 250 N.W. 410, where mortgagee’s knowledge of and acquiescence in manner of sales to dealers by mortgagor gave to the latter apparent authority to sell automobiles free and clear of mortgages, and the lien thereof was held to have been waived. It was not error to direct a verdict for plaintiff on the Yonke automobile.

Even though, as we have held above, plaintiff did not have a superior right of possession of five of the automobiles by reason of a defective assignment from Woody’s vendors, we hold that there was not a sufficiency of evidence to justify a submission to the jury of the issue of punitive damages. Plaintiff’s mortgages were apparently valid and at least colorably gave it a superior right of possession. It quite reasonably believed that its liens were good as against a dealer-purchaser. Significantly, plaintiff, did not seek possession of automobiles which it learned had been sold to persons who were not dealers, those sales being within the terms of the mortgage. The fact that plaintiff’s agent, Hughes, erred in failing to secure a legal title to five of the automobiles for Woody is not a basis for holding that plaintiff was unreasonable and disregarded Blau’s rights in instituting the replevin action. Nor do the facts of plaintiff giving Woody a restricted right to sell, leaving certificates of title with him to effectuate that purpose, as was its universal practice, show that it had no basic, legal right to proceed in re-plevin against a dealer-purchaser who purchased the automobiles from Woody in violation of what appeared to be a valid limitation as to all six automobiles, and certainly as a matter of law as to the Yonke car. It does not appear in evidence whether or not plaintiff had knowledge of the date of sale of the Roush car, so that it could have known that the mortgage was filed for record after the sale to Blau. Such fact, however, as to one automobile, would not destroy a reasonable belief in the right to possession of the remaining five.

We deem that plaintiff’s failure to check the state of the titles to the automobiles in the Director of Revenue’s office is not significant. If all of the mortgage liens had been good, the plaintiff would have prevailed on the issue of the superior right to possession even as against Blau regardless of the fact that he had new titles from the Director of Revenue. That information concerning Blau’s reissued titles would have been no more than the information as to his possession of the automobiles, if plaintiff- had a superior right to possession to them. Failing to check the title certificates in the Director of Revenue’s office does not show bad faith, or malice, and has no bearing on the issue of punitive damages.

With respect to the facts of the execution of the writ of replevin, we find nothing to indicate that the deputy sheriff was acting under the direction of plaintiff in assaulting or in using abusive language toward Blau’s employee, Buford, or in reaching for a gun, as Buford testified. For all that appears, the deputy, who as the evidence shows had executed many writs of replevin in the course of his duties, was merely acting under the direction of the Sheriff’s office in carrying out an order of the court. Walker v. Huddleston, Mo.App., 261 S.W.2d 502, 507 [8]. One incident at the time of the taking of the cars under the writ of replevin occurred when Blau attempted to take the keys from a 1957 Ford Station Wagon (thus impeding the execution of the writ). One of the men then grappled with Blau over the keys and pushed him in the stomach “real hard” and flattened him against the building. That single incident does not show a reckless disregard of Blau’s rights and interests which would entitle him to punitive damages, hut merely a resistance to Blau’s interference with the execution of the writ, lawful on its face.

It has been held that in order to recover punitive damages there must be present malice — the intentional doing of a wrongful act. “This means that defendant not only intended to do the act which is ascertained to be wrongful but that he knew it was wrongful when he did it. There must be, in order to justify punitive damages, some element of wantonness or bad motive, but if one intentionally does a wrongful act and knows at the time that it is wrongful he does it wantonly and with a bad motive.” (Emphasis added.) Luhmann et al. v. Schaefer, Mo.App., 142 S.W.2d 1088, 1090 [7, 8]. As we have indicated above, plaintiff did not know that it had no lawful right of possession to at least four of the six automobiles, and there fore that the seizure of the automobiles was wrongful when done. See also Hussey v. Ellerman, Mo.App., 215 S.W.2d 38; Thomas v. Commercial Credit Corporation, Mo.App., 335 S.W.2d 703; Annotation, 153 A.L.R. 763; 15 Am.Jur. Damages, § 278, p. 713. Plaintiff was merely mistaken in its belief that it was entitled to the possession of the automobiles. Colorado Kenworth Corporation v. Whitworth, 144 Colo. 541, 357 P.2d 626, 97 A.L.R.2d 990; 2 Sutherland on Damages, 3rd Ed., § 393, p. 1095.

That part of the judgment awarding punitive damages in the amount of $40,000.00 is reversed; otherwise the judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.