author: PARKER, Justice.

text:
    F. K. PARKER, Appellant, v. T. O. SUTTON & SONS, a Partnership, Appellees.
    No. 6681.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 8, 1964.
    Rehearing Denied Oct. 28, 1964.

      Marion G. Holt, Nacogdoches, for appellant.
    Ramsey, Ramsey & Smith, San Augustine, for appellees.
   PARKER, Justice.

This is a boundary suit tried before a jury. Appellees H. G. Sutton, J. W. Sutton, M. O. Sutton, C. A. Sutton, and R. W. Sutton, hereinafter called “Suttons”, sued appellant Parker, hereinafter called “Parker”, in trespass to try title for 13.63 acres of the Charles G. Bruce Survey in San Augustine County, Texas. Parker’s answer was plea of not guilty. The 13.63 acres were enclosed by defendant Parker. The Charles Hereford Survey and the Charles G. Bruce Survey adjoin, the Hereford Survey being the senior survey. The jury found the location of the dividing line between the two surveys to be as contended by the Suttons. Upon this jury verdict, Suttons recovered from Parker the title to and possession of the 13.63 acres. Further, Parker was ordered to move the fence from Suttons’ property.

As part of his Point 1, Parker contends there is no evidence to support the verdict of the jury for the reason (A) that the land for which Suttons sued was not shown to be owned by them. Part of Parker’s Point 2 is to the same effect, except Parker contends there is insufficient evidence to support the verdict of the jury. The Charles G. Bruce Survey, containing 334^4 acres, was patented to Charles G. Bruce by the State of Texas on August 22, 1902. The Suttons introduced a regular chain of title under such patent into them conclusively establishing their ownership of the fee simple title to the entire Charles G. Bruce Survey. There is no evidence to the contrary.

The remainder of Parker’s Point 1 is that there was no evidence to support the verdict of the jury for the reason (B), “That there is no testimony that Point 2 to Point S on the plat introduced in the evidence as appellees’ exhibit No. 17, and found by the jury to be the true line between the Bruce and Hereford Survey was run on the same degree declination as called for between the original survey and patent of the State of Texas for the Hereford Survey.” The remainder of Parker’s Point 2 is to the same effect except that the contention is (B) that there was insufficient testimony that such Point 2 to Point 5 was run on the same degree declination as called for in such survey and patent for the Hereford Survey. Parker, in his first amended original motion for new trial, in no manner complains of there being no evidence or insufficient evidence to show that the true line between the Bruce and Hereford Surveys was run on the same degree decimation as called for “between the original survey and patent for the Hereford Survey.” Under Rule 374, Texas Rules of Civil Procedure, such alleged errors were waived by Parker because they were not set forth in such motion for new trial.

The Hereford Survey was patented in 1848. R. A. Ellis surveyed the Hereford Survey July 25, 1842, using a variation of 9 degrees 20 minutes East, being the compass declination from true North Ellis used for magnetic North. The surveyor Owens made his survey in 1961 and used a variation of 8 degrees East for his compass declination from true North. The variation from magnetic North and true North constantly changes according to the evidence in this case. Actually, this is a scientific fact commonly known, of which this court takes judicial notice. The surveyor Owens testified that in order to follow the footsteps of surveyors in running out old surveys of the age of the Hereford Survey he had found an 8 degree declination to fit their lines. Appellant contends, “If Point 2 to Point 5 on the plat was not run on the same degree declination as called for by the original survey and patent by the State of Texas for the Hereford Survey, it cannot be the same line called for by the original survey and patent by the State of Texas for the Hereford Survey and is not the true boundary line between the Bruce and Hereford Surveys.” It is undisputed that the declination used by Owens was different from the declination used by Ellis in 1842. If he had used the same declination, he could not have followed the footsteps of the original surveyor. Appellant’s argument concerning declination is without merit.

The surveyor Owens testified as to his work on the ground in locating the common boundary line of the Hereford and Bruce Surveys, being the line Point 2 to Point 5 on appellees’ exhibit No. 17. Along this line was an old fence. Such line was located by Owens according to Ellis’ field notes of 1842 for the Hereford Survey from the best evidence now available and in accordance with and controlled by corners generally recognized and accepted as correct in that community. The line found by the jury to be the true boundary line between the Hereford and Bruce Surveys had been respected for a long period of time. When appellees’ exhibit No. 17 reflecting Owens’ work upon the ground was offered in evidence, the only objection by appellant was based upon his argument as to declination.

Under the undisputed evidence, appellees conclusively established that they owned in fee simple the Charles G. Bruce Survey. The Bruce Survey includes the land in controversy by virtue of the jury finding as to boundary.

There is evidence supporting the finding of the jury that the true line between the Charles Hereford Survey and the Bruce Survey is from Point 2 to Point 5 as shown on the plat introduced in evidence as “P— 17”. Appellant’s Point of Error No. 1 is overruled for the reasons hereinbefore stated.

Viewing the entire record, there is an abundance of probative evidence supporting the finding of the jury as to the location of such boundary line. Some of this evidence is detailed hereinafter and a fair summary of same is contained hereinabove. The finding of the jury as to the location of such boundary line is not manifestly unjust and clearly wrong. For the reasons hereinabove stated, appellant’s Point of Error No. 2 urging there was insufficient evidence to support the verdict of the jury is overruled.

Parker’s Point 3 is that the trial court erred in allowing the surveyor Owens to testify that the land enclosed by Parker’s fence was part of the Bruce Survey over the objection of Parker that it called for a conclusion and opinion of the witness and it invaded the province of the jury. Prior to the questions and answers complained of, Owens had testified, without any objection, that he identified the West boundary line of the Bruce Survey and the East boundary line of the Hereford Survey on the ground. The plat reflecting his work was admitted in evidence. Owens was asked to explain his plat and what it showed, which he did, without objection. Parker made no objection to Owens’ testimony as to the location of the lines of the Hereford Survey as shown on the plat and as found by him on the ground. Owens testified, without objection, that the line the jury subsequently found to be the dividing line between the Hereford and Bruce Surveys, as shown on Owens’ plat, was the boundary line between the Hereford to the West and the Bruce to the East. Many such statements were made by Owens without objection by Parker prior to the testimony complained of. The only surveyor testifying in this suit was the witness Owens. He was questioned at length by all parties to this suit concerning the field notes of the two surveys, his work on the ground locating such surveys from such field notes, the plat reflecting that work, the lines of the surveys accepted by him, and all matters relating to the questions involved in this lawsuit.

The questions and the answers complained of are set forth below:

“Q. Yes, sir. Could you under any type of approach, calls, distances, evidence on the ground or anything that you saw there and know about, could you determine that this land could, under any condition, be Hereford land?
“A. In my best knowledge there is no conceivable way this could be-”

Here the objection was made, which was overruled. The question was restated and the witness answered as ■ follows:

“Q. The question was from what you did there on the ground, using calls, distances, evidence on the ground, everything that you used and saw in your work as a surveyor there, could you under any circumstances, determine that any of this enclosed land in this fenced area was part of the Hereford Survey?
“A. No.”

Same objection was made after this question. Further questions and answers followed, to which no objection was made:

“Q. And did you determine that it was part of the Bruce Survey?
“A. It was part of the Bruce Survey.
“Q. You say that the area enclosed in the fence there is Bruce land fenced up?
“A. It is Bruce land.”

The same evidence had been admitted from the same witness under proper questions prior to such objections. Counsel for Parker made no objection as soon as the asserted grounds thereto appeared, nor did he ever make a motion to strike out the evidence or request the court to instruct the jury to disregard it.

Such opinion and conclusion of the witness Owens was based upon his work on the ground. In this field, he was a qualified expert. His opinion as to the location of the boundary line had theretofore been admitted in evidence to aid the jury, not to control it, in the determination of the sole issue submitted to it. Houston & T. C. R. Co. v. Roberts (1908), 101 Tex. 418, 108 S.W. 808, 809; Texas & N. O. R. Co. v. Wood (1942, Tex.Civ.App., San Antonio), 166 S.W.2d 141. The testimony of Owens as to his work on the ground in locating the Hereford and Bruce Surveys, his testimony as to the recognized corners he found and all evidence bearing upon the location of the boundary line make the ob* jection to the ruling of the trial court at that time under those circumstances unavailing and without merit. It was not erroneous. Rowe v. Liles, Tex.Civ.App., 226 S.W.2d 253 (err.ref.), and authorities cited therein on page 256; McCormick and Ray, Texas Law of Evidence, Section 27, Page 26, Volume 1. Error cannot be predicated on the admission of evidence, where the fact sought to be proven was convincingly proven by other evidence, admitted without objection. Panhandle Nat. Bank v. Emery (1890), 78 Tex. 498, 15 S. W. 23, 25. Parker’s Point 3 is overruled.

The opinion filed herein on September 17, 1964, is hereby withdrawn and this opinion is substituted in lieu thereof.

Judgment of the trial court affirmed.

Appellant Parker’s motion for rehearing is overruled.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William H. ELLMAN et al., Appellants, v. Roehette REINARZ, Administrator of the Estate of J. L. Baldus, Deceased, Appellee.
    No. 11292.
    Court of Civil Appeals of Texas. Austin.
    Nov. 18, 1964.
   PER CURIAM.

This is an appeal from an order appointing a receiver “to take charge of New Braunfels Publishing Company, operating a newspaper business” in New Braunfels, Texas. The appointment was made on application of Roehette Reinarz, Administrator of the Estate of J. L. Baldus, deceased, appellee. Defendants, appellants herein, were William H. Ellman and wife, John Taylor, George Stein, Ray Mauer and the New Braunfels Publishing Company, Inc.

This cause was set for submission and oral argument for November 4, 1964, due notice of which was given. Appellants have filed no brief as they were required to do. Hamilton v. American National Ins. Co., 200 S.W. 259, San Antonio, Civ.App., no writ history, Rules 414-415, Texas Rules of Civil Procedure.

Notwithstanding the failure of appellants to file a brief, we permitted counsel for all parties to orally argue this case on submission, during which argument counsel for appellee confessed error in the order appealed from because of appellee’s failure to comply with the bond requirements of Rule 695-a, T.R.C.P.

We have also been advised that the Trial Court has, on motion of appellee, vacated the order, the subject of this appeal. It is our opinion that the effect of this order is to make this appeal moot.

It is, therefore, ordered that this cause be reversed and appellee’s suit be and the same is hereby dismissed.


author: RENFRO, Justice.

text:
    I.P. JACOBS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 16573.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 30, 1964.
    Rehearing Denied Dec. 11, 1964.
    Lyne, Blanchette, Smith & Shelton, and Robert W. Smith, Dallas, for appellants.
    Brown, Herman, Scott & Young, and A.. J. Bryan, Fort Worth, for appellee.
   RENFRO, Justice.

The State of Texas, on January 10, 1962,. by condemnation, took for highway purposes 2,703 square feet of Block B and 84,964 square feet of Block A, Southport Addition, Second Filing, in the City of Fort Worth. The State also acquired certain easement rights on parts of the remaining land. The land was needed as part of right-of-way for a new freeway known locally as the “Poly” freeway.

Owners of the land, defendants below and appellants herein, were I. P. Jacobs and D. G. Fox, Jr.

Appellants contend the court erred in excluding from the jury opinion evidence as to the market value of the land as commercial land.

When appellants purchased the land in 1950 it was zoned as B-2 Family Residential property. In 1954 request was made for changing zoning to E Commercial. The request was denied. Another request was made in 1957 to change to E Commercial. This request, too, was refused. A third request to change to E Commercial was made in 1959. The request was not acted upon, and no request for rezoning has been made since.

Both Blocks A and B were vacant and had not been used for any purpose by appellants. The two tracts are separated by a light traffic street called Canberra Court. There are no fences, buildings or other structures, except Canberra, between the tracts.

Appellant Fox testified the highest and best use of the land at the time of taking was as commercial land because a rise in •elevation at the rear of the land created a •physical barrier to residential use and that Mitchell Boulevard, adjoining appellants’ land on the east, was a major thoroughfare -through that section of town and was commercial in character. His testimony as to 'value as commercial property was excluded.

Witness Turnbow, before the jury, testified fully as to the market value of the land .as residential zoned property. Out of the •presence of the jury he testified as to the increasing traffic use of Mitchell Boulevard; improvements made on Berry Street, “Vaughn Boulevard and others; that because ■of the cliff at the rear of the property it was not economically sound to use the property .as residential; that based on his past ex•perience on the Board of Adjustment and -the City Planning Commission, as well as his experience before the above agencies, he was of the opinion an application for rezoning, if one had been presented before -the taking, would have been granted.

On cross-examination he testified there had been no development to the north of the property prior to the taking or at time of •trial; no development to the south; prior to taking and at time of trial appellants’ land, and property east of Mitchell Boulevard were vacant; the nearest commercial -development to appellants’ land was on the opposite side of Mitchell Boulevard one quarter mile south and such venture was unsuccessful; that an apartment project which adjoined appellants’ land had been unsuccessful; that Mitchell Boulevard had never been a good commercial street.

Witness Meacham, for appellee, testified there was little demand for land along Mitchell Boulevard; that commercial enterprises have never extended to the general area of appellants’ land; the highest and best use of appellants’ property was B-2 Family Residential; only rezoning on Mitchell Boulevard since 1959 was one piece of property rezoned from B-2 Family Residential to B-Apartment; there was limited demand for property generally in the vicinity, and none for commercial property in 1962.

Both sides rely upon City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). Appellants argue that the approval by the Supreme Court in the above case of the following statement from Nichols on Eminent Domain, 2nd Edition, Vol. 1, p. 669, § 219, supports their position: When however a particular use of property is prohibited or restricted by law, but there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the property may be taken into consideration.’ ”

Appellants insist that the evidence is sufficient to show a probability of zoning change so as to make their land available for commercial purposes.

' In the Cannizzo case, however, the Supreme Court approved the rule that “If the trial judge is satisfied from the evidence as a whole that there is no reasonable probability that existing restrictions may be lifted within a reasonable time, he should exclude evidence of value based on use for any purposes other than those to which it is restricted.” (Emphasis added.)

Under the above rule the trial court is vested with considerable discretion in determining “reasonable probability” of rezoning “within a reasonable time”. We are not authorized to substitute our rulings for his on the exclusion of the evidence unless it appears that he has abused his discretion. Henslee v. State, 375 S.W.2d 474 (Dallas Civ.App., 1963, ref., n. r. e.).

The evidence as a whole amply supports the conclusion of the trial court that there was no reasonable probability that the zoning restriction on appellants’ land would be lifted within a reasonable time.

We have given careful study to the 300 page statement of facts and all exhibits. We are unable to say from a study thereof that the trial court abused its discretion in excluding evidence of value of the land as commercial.

Appellants next contend the court erred in treating A and B tracts as one unit in submitting issues to the jury.

The parties stipulated the only issues to be determined were value of the land taken and the damages to the remainder. It was further stipulated appellants would have the right to open and close in the case.

The burden was upon appellants to-prove the value of the land taken and. the damages to the remainder. Ready v. City of Marshall, 234 S.W.2d 104 (Fort Worth Civ.App., 1950, no writ hist.); State v. South Main Baptist Church, 361 S.W.2d 898 (Houston Civ.App., 1962, ref., n. r. e.).

If appellants were dissatisfied with the issues as prepared by the court it was. their duty to submit in writing, in substantially correct wording, the issues they deemed proper. Rule 279, Texas Rules of' Civil Procedure. This they did not do.

In addition, considering all the evidence-concerning the land, we believe appellants, have shown no harm as a result of the manner of submitting the issues on market value of the land taken and damages to the-remainder. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207 (1962) State v. Baker Bros. Nursery, Sup., 366 S.W.2d 212 (1963).

All points of error have been considered! and are overruled.

Affirmed.


author: CULLEN, Commissioner.

text:
    Billy Ray WELLS, Appellant, v. Gary L. CONLEY, by Glen Conley, next friend, etc., Appellees.
    Court of Appeals of Kentucky.
    Dec. 4, 1964.
    J. K. Wells, Eugene Rice, Paintsville, for appellant.
    W. B. Hazelrigg, R. B. Harrington,. W. A. Johnson, Paintsville, for appellees.
   CULLEN, Commissioner.

In midafternoon on March 22, 1962, Billy Ray Wells was alone in his Cadillac automobile eastbound on Highway 460 about six miles west of Paintsville, and Carol Saylor,, with Thurman Blair and Gary Conley as his passengers, was westbound in a pickup-truck. The Cadillac of Wells and the truck driven by Saylor collided, killing Saylor and Blair and injuring Conley and Wells. Blair’s estate and Conley sued both Wells and the Saylor estate, and Wells and the-Saylor estate cross-claimed against each other. Judgments on the jury’s verdict were for Conley $5,437.67, for the Blair estate-$15,000.00 and for the Saylor estate-$16,000.00, all against Wells alone.

Wells’ appeal lists two complaints. First,, that the State Trooper, the investigating-officer, was permitted to give his theory as to-the paths of the two vehicles leading up to-the collision, and their point of impact,, based on the positions of the vehicles after the accident and on gouge marks in the-east-bound traffic lane; and second, that the two passenger plaintiffs were each given three peremptory jury challenges.

Both of these complaints are well taken..

Conley and Wells were the only surviving-eyewitnesses of the actual collision, and1 each testified that the other’s vehicle was on the wrong side of the road. After the collision the vehicles came to rest with the Saylor truck almost entirely off the road on the south berm, pointed south, and the Wells Cadillac a few feet to the west of the truck, crossways of the highway, pointed south, with its rear wheels slightly north of the center line.

The State Trooper was permitted, over strong objection, to testify that in his opinion the vehicles collided in the north (westbound) lane and that immediately prior to the collision the Cadillac was entirely in the north lane (on its wrong side of the road). He also was permitted to display to the jury a diagram he had prepared showing the positions and paths of the vehicles before the collision according to his opinion.

The Trooper stated that in forming his opinion he took into consideration three facts, the first of which was the position of the vehicles after the collision. (The other two were the gouge marks and the nature of the damages to the vehicles.) It is apparent from his testimony that he assumed that the vehicles moved only a few feet after the collision and that the point of impact was only a few feet from the place where the vehicles came to rest. (There was no debris nor were there any skid marks to identify the point of impact.) His opinion was that since gouge marks in the pavement beneath the Cadillac appeared to have been made by a north to south motion, the Cadillac was moving from the north side of the road to the south when it made the marks. He assumed that the collision occurred immediately before that movement.

The assumption made by the Trooper was a vital structural component of his opinion; without it his whole opinion would collapse. If the assumption was invalid or merely conjectural, his opinion failed of the required factual basis for an expert opinion. See Annotation, 66 A.L.R.2d 1048.

We think it is possible that the vehicles collided, in the east-bound lane, some distance east of the point where the vehicles came to rest; that the Cadillac spun around and went west for a ways in the west-bound lane and then turned sharply and came to rest across the east-bound lane; and that the truck, after the collision, continued for a distance down the road and then spun around and came to rest on the berm. (This would be consistent with Wells’ testimony that he thought the collision occurred farther east than would be indicated by the position of the vehicles after the collision.) It also is possible that the collision occurred, in the east-bound lane, west of the point where the vehicles came to rest; that the Cadillac went over into the west-bound lane and then spun to the right and came to rest; and that the truck was turned completely around by the collision, went in the opposite direction for a ways, and then turned sharply or spun again and ended up on the south berm. The mere fact that both vehicles may have been in the west-bound lane immediately before making the gouge marks observed by the Trooper does not establish that they collided directly north of the gouge marks.

In Steely v. Hancock, Ky., 340 S.W.2d 467, at 470, we said:

“It has been said that violent impacts of moving bodies sometimes have freakish effects. C. L. & L. Motor Express Co. v. Achenbach, 1935, 259 Ky. 228, 82 S.W.2d 335; Ashland Oil & Refining Co. v. Brashear, Ky.1952, 251 S.W.2d 288, 290. It is virtually impossible to reconstruct, even roughly, the dynamics of an automobile accident. Cf. Schoen v. Plaza Express Co., Mo.Sup.1947, 206 S.W.2d 536, 539. This court has yet to see the case where it can be done post factum from the position of the vehicles. There are simply too many unknown and unknowable factors. To say that the positions of the truck and car off to one side of the road prove the accident occurred on that side of the center line of the highway requires conj ecture. That circumstance alone is not- of enough substance and reliability to authorize a submission to the jury.”

' It is our opinion that the'position of the vehicles after the collision did not warrant the assumption made by the Trooper (that the vehicles moved only a few feet after colliding), and since his opinion was based on that assumption the opinion lacked the required factual basis for an expert opinion.

Our holding in this case is in no sense inconsistent with Sellers v. Cayce Mill Supply Company, Ky., 349 S.W.2d 677, because there the Trooper’s opinion was based on observed facts and not on conjectural assumptions.

We think it was proper for the State Trooper (having had training and extensive experience in the investigation of automobile accidents) to state his opinion, from his examination of the damage to the vehicles, that they struck at a certain angle; also, he could state his opinion, from his examination of gouge marks in the highway and tar or asphalt residue on the bottoms of parts of the vehicles, that the vehicles were moving in a certain direction when the gouge marks were made, and that some of the marks were made by one vehicle and some by the other. These opinions were based on observed facts and involved the application of expert training and experience to such facts. But none of the observed facts would warrant an expert or anyone else to reach the cpnclusion here reached by the State Trooper, that the vehicles must have collided a few feet north of the point where the gouge marks appeared. (The vehicles very well could have jumped and bounced for a considerable distance before nosing down to make gouge marks. Eyewitnesses to a recent head-on collision near Louisville reported that one of the vehicles bounced in the air so high that a following vehicle passed completely beneath it.)

The judgments must be reversed because of error in admitting the State Trooper’s opinion and diagram as to the point of impact and the paths of the vehicles before the collision.

'As concerns the second ground of error raised by the appellant, it is our opinion that it was error to give the two plaintiff passengers three jury challenges each. True they each filed separate suits and there was a plea of contributory negligence against each. Even so, their positions in the trial were identical and in no way antagonistic to each other. In fact they were represented by the same counsel.

The judgments are reversed with directions to grant a new trial.


author: WADDILL, Commissioner.

text:
    Elias MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 4, 1964.

      Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.
    Robert Matthews, Asst. Atty. Gen., Frankfort, F. E. Wood, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of attempting to rape an eight-year-old child and his punishment fixed at confinement in prison for five years. KRS 435.080(2). Reversal of the conviction is asked on the grounds that the court erred: In permitting the jury to hear incompetent and prejudicial testimony; in instructing the jury, and in permitting the Commonwealth’s attorney to make an improper closing argument to the jury.

When the Commonwealth called the child as a witness the appellant objected to her testifying on the ground she did not have sufficient intelligence. To test her qualifications she was questioned as follows:

“Court: Do you understand that the things you tell that you are telling them in the presence of our Lord and you are supposed to now swear that what you tell is the truth and you are asking him to bear witness to the truth, and so long as you tell the truth you don’t care who hears you.
“Mr. Burns: [Commonwealth’s Attorney] You know what it means when you swear to tell the truth, don’t you?
“Witness: No.
“Mr. Burns: You know you are swearing to God that what you tell is the truth, don’t you? Do you know that? Do you know when you swear to God you will tell nothing but the truth, do you know that ?
“Witness: Yes.
“Mr. Burns: When you held your hand up and Judge Dixon asked you to tell the truth and nothing but the truth, did you mean that you would tell nothing but the truth ?
“Witness: Yes.”

At the conclusion of this brief inquiry the judge permitted her to testify.

When the competency of an infant to testify is properly raised it is then the duty of the trial court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth. Muncie v. Commonwealth, 308 Ky. 155, 213 S.W.2d 1019; Roberson’s New Criminal Law & Procedure, section 567, pp. 775 to 777. In the instant case the examination of the child was so superficial that no accurate appraisal of her mental capacity could be made. The questions propounded to her on voir dire examination should have elicited answers which would demonstrate her ability to observe, recollect and truthfully narrate the facts. Her subsequent testimony in chief being primarily monosyllabic responses to leading questions is of little assistance in determining her competency as a witness. We therefore conclude that upon this record the trial court erred in permitting her to testify. By this conclusion we do not foreclose the possibility that, upon a retrial, this child may be shown to be a competent witness by a careful examination. Muncie v. Commonwealth, supra.

The indictment alleged that the offense was committed on or about August 3, 1963. A witness, who had testified on direct examination that she was present when the child was sexually assaulted, in response to a question asked on cross-examination as to the date of the offense, stated “it happened every day.” Counsel, for appellant objected and requested the court to declare a mistrial. The court overruled the objection and directed the witness to answer the question. This testimony was competent as showing appellant’s lust for the child but it was the duty of the court to admonish the jury that such testimony could only be considered as corroborative evidence. Ashcraft v. Commonwealth, Ky., 317 S.W.2d 179.

Appellant contends that he was entitled to a directed verdict of acquittal. There is no basis for this contention as there was positive testimony that appellant sexually molested the infant.

Appellant’s contention that the Commonwealth’s Attorney made an improper closing argument to the jury cannot be considered on the appeal since the record does not contain the argument or any objections thereto.

The judgment is reversed with directions to grant appellant a new trial.


author: DAVIS, Commissioner.

text:
    Robert (Bob) TREVATHAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 4, 1964.

      Harry H. Boaz, Mayfield, for appellant
    Robert F. Matthews, Atty. Gen., Frankfort, L. M. T. Reed, Mayfield, Frank D. Berry, Asst. Atty. Gen., Frankfort, for ap-pellee.
   DAVIS, Commissioner.

The appellant, Robert (Bob) Trevathan was indicted for the wilful murder of his son, Gene. Upon his trial he was convicted of voluntary manslaughter and sentenced to imprisonment for five years. KRS 435.-020.

Appellant presents three basic contentions for reversal: (1) improper argument by the Commonwealth’s Attorney; (2) admission of evidence which was obtained as the result of an illegal search, and (3) a directed verdict of acquittal should have been given.

Gene Trevathan, the victim of the instant homicide, was an unmarried man, about thirty-two years old. His admitted paramour, Mary Byassee, testified that she was present, on January 5, 1963, when Gene sustained the fatal stab wound, and that the only other person present was the appellant, father of Gene. Gene and appellant lived in two rooms of a dilapidated house in Qinton; the homicide occurred in the kitchen-bedroom of that house.

According to Mary Byassee, Gene had brought her to the residence to watch television. When they arrived the appellant was sitting in a chair “in the door” between the only two rooms used by appellant and Gene. As Gene passed the place where appellant was seated appellant tripped Gene. Whereupon Gene said, “Daddy, don’t do that anymore”. Then appellant put his arm around Gene’s shoulders and said, “You don’t know this old Indian”. Mary said, “If you are going to argue, I’m going home”. She then started to the door to go home when she heard Gene say, “Daddy, you cut me and cut me bad”.

Mary Byassee then observed that “blood was streaming in every direction” from Gene — that Gene walked right by her and fell on the floor. She recounted that she stood there and “looked a few minutes” and then turned to ask appellant whether he was going to do anything to help Gene. But, according to Mary Byassee, appellant was no longer present.

The coroner arrived about 7:00 p. m., shortly after the homicide. He found that Gene Trevathan was dead as the result of a stab wound just above his collar-bone, on the right side of his neck. The wound was slightly more than three-quarters of an inch in width.

When the sheriff and some police officers arrived they found appellant wandering about in the yard outside the house. Appellant reported that “somebody” had cut Gene, although he said that he was sure that Mary Byassee could not have done it.'

Appellant was forthwith arrested and confined to jail. At the time of his arrest, the arresting officers searched the appellant as well as the premises, but found no weapon. On the next day, however, the sheriff returned to the premises and conducted a further search. In an outside toilet on the property he discovered a pocket knife. This search was performed without any search warrant. There is no contention that the appellant consented to the search.

In a preliminary hearing on the day of trial, appellant’s counsel moved the court to suppress and exclude from evidence “any and all evidence pertaining to or alluding to a knife allegedly found in an outhouse on the defendant’s premises” because the knife was discovered as the result of an illegal search and seizure. The trial court sustained the motion “to the extent of prohibiting the introduction of the alleged knife in evidence as an exhibit”, but overruled the motion “and will permit reference and testimony as to the finding of the alleged knife”.

During the trial a witness, Billy Byassee, made the following reference to the conduct of appellant just after the stabbing, and before any officer had arrived: “ — and I stayed two or three minutes after that and got up to leave because I knew he was dead or dying and when I started out the back door I seen Bob (appellant) coming out from that old outdoor toilet and I stopped him and asked him, ‘Have you called help or the ambulance for that?’ and he said ‘Yes’ — ”.

The sheriff later testified that he found a pocket knife in the outdoor toilet when he searched it the next day. The appellant denied that he owned any pocket knife. Consistently with the court’s pretrial ruling, the knife was not presented in evidence, and the foregoing constitute all the references to it in the evidence.

Freedom from unreasonable search and seizure is fully guaranteed by Kentucky Constitution, Section 10. Moreover, the guarantee against unreasonable search and seizure which is vouchsafed by United States Constitution, 4th Amendment, is equally applicable to activities of state officers. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. The search made on the next day after the crime, without any search warrant, was an unreasonable and illegal search. Ross v. Com., Ky., 275 S.W.2d 424; Senibaldi v. Com., Ky., 338 S.W.2d 915; Manning v. Com., Ky., 328 S.W.2d 421.

The admission in evidence of the finding of the knife was error. The mere exclusion of the knife as an exhibit did not serve to cleanse the impurity of this illegal search from the testimony that the knife was indeed found. That this evidence was material and damaging to appellant may not be doubted when it is recalled that Billy Byassee told of appellant’s emerging from the outdoor toilet just after the offense.

For the prosecution it is contended that appellant waived any objection to the illegal search because his counsel asked the officer whether he had seen the knife and whether it was like the one he had once known appellant to own. We are not able to accept that contention — it overlooks the fact that already the court had permitted the testimony that a knife was found. Under the circumstances, appellant was justified in attempting to prove that the knife was not his. The plain answer is that the appellant should never have been put upon proof as to the knife at all, because its discovery was the result of an illegal search.

Since there will be another trial, we observe that we find no merit in the appellant’s contention that the argument of the Commonwealth’s attorney was prejudicial. Reference to well known historic events (in this instance the assassination of President Kennedy) is not improper argument, • absent some showing of specific prejudice. Clark v. Com., 209 Ky. 51, 272 S.W. 11; Tyree v. Com., 212 Ky. 596, 279 S.W. 990.

From what has been said, we find there is no merit in appellant’s contention that a directed verdict’ for acquittal should have been given. Certainly, the evidence of Mary Byassee is evidence of substance pointing toward appellant’s guilt of the offense. The fact that her credibility is attacked is a matter which rests with the jury. Parsley v. Com., Ky., 273 S.W.2d 372.

The judgment is reversed for proceedings consistent with the opinion.


text:
    Mrs. Alice LITTLE, Appellant, v. Dr. A. J. WHITEHOUSE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 4, 1964.

      George E. Barker, Shouse, Barker & Coplin, Lexington, for appellant.
    Harbison, Kessinger, Lisle & Bush, Lexington, for appellee.
   CULLEN, Commissioner.

Mrs. Alice Little, appellant, brought action against Dr. A. J. Whitehouse, appellee, to recover damages for alleged malpractice by the doctor in the performance of an operation to correct an enterocele. The jury found for the defendant and judgment was entered dismissing the complaint. Mrs. Little has appealed, contending that error was committed by the trial judge in his disposition of a request by the jury that they be permitted to take a particular deposition to the jury room.

The principal medical witness for the plaintiff was Dr. Douglas Scott. His testimony was presented to the jury by the reading of his deposition, since he was unable to be present at the trial. After having retired for deliberation at the close of the trial (which had lasted for several days and had extended over a weekend) the jury was brought back into court at its own request and through its foreman it asked that it be permitted to take Dr. Scott’s deposition into the jury room. The judge stated that he could not permit that. The judge asked the jurors whether they had any further questions and their response was “No.” The jury then retired again for deliberation and thereafter brought in its verdict. Counsel for both parties were present when the jury’s request to take the deposition into the jury room was made and denied.

The appellant does not suggest that the trial judge erred in refusing to let the jury have the deposition, hut she maintains that the judge should have told the jurors that portions of the deposition could be re-read to them in the courtroom. The contention is based upon the provisions of KRS 29.304 and upon the foreign case of Hill v. McQueen, 204 Okl. 394, 230 P.2d 483, 22 A.L.R.2d 1220.

The statute, KRS 29.304, provides that if, after retirement of the jury for deliberation, “there be a disagreement between them as to any part of the testimony,” they may request to be brought into court “where the information required shall be given” in the presence of or after notice to the parties or their counsel.

Since the jurors in the instant case obviously wanted to be reinformed as to the testimony of Dr. Scott we think that a rereading of the deposition in the courtroom was “information required” within the meaning of the statute, although the jury did not specifically ask for a re-reading but only asked for physical possession of the deposition. It is our opinion that the trial judge, in the proper performance of his. responsibility to supervise the trial, should', have asked the jury whether there was a disagreement among them as to any part off Dr. Scott’s testimony, and should have told; the jury that parts of the deposition could', be re-read to them to the extent necessary to resolve the disagreement, and we believe-it was error for him to fail to do so. However, it is our opinion that the plaintiff,, whose counsel sat silently by and made no. effort to call attention to or prevent the error, is not entitled to complain of the error-on appeal.

A basic general principle of the Rules off Civil Procedure is that a party is not entitled to raise an error on appeal if he has-not called the error to the attention of the-trial court and given that court an opportunity to correct it. See Commonwealth, Department of Highways v. Williams, Ky., 317 S.W.2d 482; Clay, CR 46, Comments 3,. 4. We believe that counsel have an obligation to assist the trial judge in the avoidance of error and we concur in the view expressed in Clay, CR 51, Comment 5, p. 92,. that :

“ * * * Unless there may be attributed to every trial judge an omniscience which few possess, it is necessary to impose on the attorney the responsibility of assisting the judge-
* * *. He should not be permitted on ■appeal to claim an abortive trial to which he has materially contributed by failure * * * to assist the trial judge past the pitfall of error.”

The Oklahoma case (supra) relied upon "by appellant (in which the failure of the trial judge to tell the jury that parts of a ■deposition could be re-read to them was held to be reversible error) is not persuasive in the decision of our case because ■there the attorneys were not present when the jury made its request to the judge and they had no opportunity to prevent the er-Tor.

The situation here is not comparable to •one in which the judge makes prejudicial ■remarks or comments from the bench. See Collins v. Sparks, Ky., 310 S.W.2d 45. There could be no danger of a party’s prejudicing his case by suggesting to the judge “that parts of a deposition could be reread to the jury.

It is our conclusion that the error com•plained of here was not properly preserved ■for appellate review.

The appellant argues two other ■grounds of error, but for the reasons hereinafter stated those grounds are not entitled do consideration.

The appellant designated only a partial record and therefore, under CR 75.04, she was required to, and did, serve a statement ■of the points on which she intended to rely ■on the appeal. The statement set forth only the point hereinbefore discussed with reference to the re-reading of the deposition; the other two points argued in the brief were not mentioned in the statement.

The clear intent of the rule, CR 75.04, is that a party be limited in his argument on appeal to the points set forth in his statement. See Ritchie v. Drier, 83 U.S.App.D.C. 16, 165 F.2d 238. Perhaps circumstances might exist in a case that would warrant the court’s consideration of points not included in the statement. See Clay, CR 75.04, Comment 4. However, we have examined the two points here involved and we find that they are not of serious importance and probably would not warrant reversal even if given full consideration.

The judgment is affirmed.


text:
    S. L. MASSEY, Individually, etc., Appellant, v. CITY OF FRANKLIN, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 4, 1964.

      Joseph R. Rubin, Rubin & Trautwein, Louisville, for appellant.
    Roy L. Steers, Forrest A. Dinning, Franklin, for appellee.
   DAVIS, Commissioner.

This class action is prosecuted by appellant as a citizen and resident taxpayer of the City of Franklin, in his own behalf and for and on behalf of all other citizens and taxpayers of the city who are similarly situated or affected by the questions presented. CR 23.01. The suit challenges the validity of an undertaking by the city to issue revenue bonds in the sum of $500,-000 for the purpose of acquiring an “industrial building” as defined by KRS 103-200. The plan is predicated upon the authority prescribed by KRS 103.200 through 103.285.

The lower court entered judgment approving the plan as valid. This appeal presents two questions: (1) whether the cited statutes enable the city to issue its revenue bonds incident to acquiring the already existing facilities (building and equipment) of the Lenk Company, and for the additional purpose of purchasing new expanded facilities of the same company, so that the existing and new facilities will be integrated into one establishment; and (2) whether the proposal contravenes KRS 424.260 which requires advertisement for bids prior to a city’s contracting for materials, supplies or equipment having value of more than $1000.

Franklin is a city of the fourth class. KRS 81.010. The appellant does not challenge the validity of KRS 103.200-103.285, the proposed plan of financing, the general nature of the contract of lease and rent, the options to renew the contract of lease and rent, or the option to purchase. It is conceded that all of the phases of the matter are appropriately performed in accord with the principles enunciated in Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80; Bennett v. City of Mayfield, Ky., 323 S.W.2d 573; Norvell v. City of Danville, Ky., 355 S.W.2d 689; and Gregory v. City of Lewisport, Ky., 369 S.W.2d 133.

However, it is pointed out for appellant that none of the cited authorities has dealt with the precise question at bar. The question is raised that although KRS 103.210 permits a city to borrow money and issue revenue bonds “ * * * for the purpose of defraying the cost of acquiring any industrial building, either by purchase or construction * * * ”, there is no specific statutory or judicial authority authorizing such financing for existing facilities; neither is there any such authority for a combination transaction, whereby the acquisition is of some existing facilities and some new facilities.

We have no difficulty construing KRS 103.210 as expressly permitting acquisition of an industrial building (as defined in KRS 103.200) even though the industrial building is composed of existing facilities coupled with newly built facilities. We are aware that in some instances the usage of “either” with “or” relates to mutually exclusive alternatives, e. g., “either true or false”. On the other hand, “either” may mean “each of two”, or “the one and the other”, e. g., “There is danger on either side”. See Webster’s Unabridged Dictionary, 2d Ed. At the risk of belaboring the obvious, we observe that in qualifying a self defense instruction in a homicide case, this Court directed the use of the terminology that the danger to the accused must be “either real or apparent”. Martin v. Com. Ky., 78 S.W. 1104, 25 Ky.Law Rep.1928. We suppose it could not be argued that if tlie danger was “real” it could not, therefore, be “apparent”. There is nothing m the statutory language to suggest that “either by purchase or construction” is meant to make the terms “purchase” and “construction” mutually exclusive. Cf. Caudill v. Citizens Bank, Ky., 383 S.W.2d 350.

Therefore, we hold that the trial court was correct in adjudging the instant project valid insofar as the question of integrating the existing with the newly constructed is concerned.

The question of advertisement pursuant to KRS 424.260 has been answered adversely to the appellant’s contention in Gregory v. City of Lewisport, Ky., 369 S.W.2d 133. See also the treatment of the related problem in Bennett v. City of Mayfield, Ky., 323 S.W.2d 573. We think it is readily apparent that the spirit of KRS 103.200-103.285 envisions the type of transaction here presented, and that this situation is one of the “special transactions of such character as to make it impractical or unwise to apply the policy of competitive bidding * * * ”, Bennett v. City of Mayfield, supra, at p. 576.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Henderson HAWKINS et al., Appellants, v. Gus O. WALLACE et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 4, 1964.
    Stephens & Combs, Pikeville, for appellants.
    Sanders & Redwine, Pikeville, for appel-lees.
   MONTGOMERY, Judge.

Gus O. Wallace et al. recovered judgment against Henderson Hawkins et al. in the sum of $3,000 as damages suffered from the operation and maintenance of a nuisance. A permanent injunction also was granted. On appeal it is urged that the claim is barred by the statute of limitations and the instructions were prejudicially erroneous.

Appellees sued on August 31, 1959. They complained of the dust from the operation of a coal-loading ramp and coal crusher by the appellants.

The construction of the ramp and crusher was commenced in 1949. This structure from its size and nature is a permanent one. Louisville & N. R. Co. v. Laswell, 299 Ky. 799, 187 S.W.2d 732; City of Ashland v. Kittle, Ky., 305 S.W.2d 768. There is no allegation or proof of negligent operation. No question of improper construction is presented. The dust constitutes a permanent nuisance. Kentucky-Ohio Gas Co. v. Bowling, 264 Ky. 470, 95 S.W.2d 1.

The rule is stated in Kentucky West Virginia Gas Co. v. Matny, Ky., 279 S.W.2d 805, thus:

“ * * * where damages are caused by a permanent structure properly constructed, and not negligently operated, a recovery must be had for the permanent nuisance once and for all, and the action must be brought within five years from the date such structure was completed and its operation commenced or from the date of the first injury, or from the date it became apparent there would be injuries resulting from the structure or its operation.”

The construction of the structure was completed in 1950. Appellants leased the premises and started operations in 1952. Appellees claimed that they first suffered from the dust in 1953. They could not open 'their restaurant in late 1953 or early 1954 because of the dust. Under the Matny rule, appellees’ cause of action was barred when they sued on August 31, 1959, by the five-year statute, KRS 413.120, under either of the alternatives presented.

No brief has been filed by appellees. The Court has consequently chosen to reverse the judgment since appellants’ brief reasonably appears to sustain such action. RCA 1.260(c) (2). This view makes it unnecessary to discuss the question of the instructions.

Judgment reversed with direction to enter judgment for the appellants.


text:
    Francis LANGDON, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    As Modified Jan. 29, 1965.

      Francis Langdon, pro se.
    Robert F. Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Francis Langdon appeals from a judgment by which his petition for habeas corpus was dismissed. Langdon was convicted of armed robbery in 1952. He now contends that the judgment is void because the indictment charged armed robbery committed on James Lyles and that he was tried for an offense committed on Arthur Jones.

The indictment, No. 96120, charged Francis Langdon and others with the armed robbery of James Lyles. No mention is made of Arthur Jones. Certified copies of the indictment and the instructions are the only parts of the Jefferson Circuit Court prosecution in the record here. The complained of instruction referred to elements of the offense of armed robbery committed on Arthur Jones but included the following:

“ * * * against the will and consent of said Arthur Jones, $82.00 in lawful money of the United States, or any of said money, of any value, the personal property of James Lyle (sic), then in the legal possession of Arthur Jones,***"

The petitioner must establish by the record of his trial that he is entitled to relief by habeas corpus. Brown v. Hoblitzell, Ky., 307 S.W.2d 739. No question is presented concerning the jurisdiction of Jefferson Circuit Court over the subject matter and the person involved. Underwood v. Jones, Ky., 346 S.W.2d 46. On the record presented here there may have been a reversible error in the instructions but such error must be raised by appeal and is not reviewable by the habeas corpus process. Pryor v. Thomas, Ky., 361 S.W.2d 279, cert. den. 372 U.S. 922, 83 S.Ct. 739, 9 L.Ed.2d 727; Nolan v. Thomas, Ky., 370 S.W.2d 825. The petitioner has failed to show that his judgment of conviction is void.

The habeas corpus petition was apparently dismissed on the theory that petitioner’s remedy was by RCr 11.42 under Ayers v. Davis, Ky., 377 S.W.2d 154; dissenting opinion, 377 S.W.2d 878. The merits of the habeas corpus petition have been reviewed here in order to eliminate the circuity of action that would be involved in requiring the petitioner to resort without hope of success to RCr 11.42 to present the same question now before the Court. Cf. Hobbs v. Stivers, Ky., 385 S.W.2d 76 (decided December 11, 1964). The grounds set forth in the petition are not sufficient to justify relief from the judgment by ha-beas corpus or under RCr 11.42.

Judgment affirmed.


author: HYDE, Presiding Judge.

text:
    MILGRAM FOOD STORES, INC., a Corporation, Respondent, v. Hollis M. KETCHUM, Supervisor, Department of Liquor Control, State of Missouri, Appellant.
    No. 50159.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 14, 1964.

      A. E. Margolin, F. Philip Kirwan, Harry H. Terte, Solbert M. Wasserstrom, Kansas City, for respondent, Margolin & Kirwan, Kansas City, of counsel.
    Thomas F. Eagleton, Atty. Gen., Jeremiah D. Finnegan, Asst. Atty. Gen., Jefferson City, for appellant.
   HYDE, Presiding Judge.

Licenses of respondent were suspended for a 25-day period by the State Supervisor of Liquor Control for violation of Regulation 15(f) (5) made under authority of Sec. 311.660(6). (Statutory references are to RSMo and V.A.M.S.) As authorized by Sec. 311.700, this decision was reviewed by the Circuit Court, on application of respondent, and the court found Sec. 311.660(6) unconstitutional as “an unwarranted attempt to delegate legislative functions to the Supervisor.” The court also declared the Regulation involved to be invalid and the Supervisor has appealed.

The Regulation involved, applicable to all licensees, was as follows: “(f) The term ‘advertisement’ as used herein includes any advertisement through the medium of radio, television, motion pictures, public address systems, newspapers or other publications or any sign or outdoor billboard or other printed or graphic matter.

“No advertising of intoxicating liquor shall contain: * * *

“(5) Any statement offering any coupon, premium, prize or rebate as an inducement to purchase intoxicating liquor.”

The Supervisor’s finding of violation was: “That on or about November 28, 1962, you, by an advertisement folder, sent through the United States Mail and by said advertisement being made available at all 19 of your stores, offered a premium or a prize as an inducement to purchase intoxicating liquor, to wit: in that you offered a Santa Claus bottle cover free of charge to anyone who purchased certain brands of scotch whiskey from any of your nineteen stores.”

Respondent’s advertisement, listing many other items, contained the following statement:

“FREE Santa Claus Bottle Cover!
You Must See to Believe!
EXCLUSIVE OFFER
ONLY AT MILGRAM
With Each Bottle Purchased of These-4 Internationally Famous Scotches, You Receive FREE A Santa Claus-Bottle Cover, With his Bright Red Velvety Coat, And His Happy Smile Gleaming Through His Long White-Whiskers !
Squeeze His Shining Red Nose and He Says ‘Hello’
Choice Of:
WHITE HORSE
BLACK AND WHITE
BALLANTINE’S
JOHNNIE WALKER RED
All 100 Percent Scotch Whisky Distilled and Bottled in Scotland”

Respondent claims these cloth bottle covers, made in Japan and costing eleven' cents each, were substantially the same as Christmas wrappings customarily used in the liquor trade, many of -which were claimed to be more elaborate and expensive, as well as decanters, carafes and other containers valuable for other uses, in which liquor was sold during the Christmas season. The Supervisor’s refusal to admit 'such evidence is claimed to be erroneous and is also the basis for a claim by respondent that his action was arbitrary, capricious and unreasonable. Apparently, these things were furnished by the manufacturers and not by Missouri licensees so Regulation 15(f) (5) was not applicable to them.

Sec. 311.660 commences as follows: “The supervisor of liquor control shall have the authority to suspend or revoke for cause all such licenses; and to make the following regulations, without limiting the generality of provisions empowering the supervisor of liquor control as in this chapter set forth as to the following matters, acts and things: * *

Subsections 1 to 5 of Sec. 311.660 specify matters for regulations such as nature, form and capacity of liquor packages, official seal and label to be attached to liquor packages, forms for license applications and •other necessary forms, terms and conditions of licenses, proof and conditions for obtaining duplicate licenses for those lost •or destroyed. Subsections 7 to 9 authorize regulations for examination of 'books and records, subpoenas and processes, production of papers, taking testimony and for forms of labels. Subsection 10 authorizes “such other rules and regulations •as are necessary and feasible for carrying ■out the provisions of this chapter, as are not inconsistent with this law.”

Subsection 6, relied on as authority for the regulation claimed to have been violated 'by respondent, is as follows:

“(6) Establish rules and regulations for the conduct of the business carried on by ■each specific licensee under the license, and such rules and regulations if not obeyed by every licensee shall be grounds for the revocation or suspension of the license.”

Respondent’s contention, which was the basis of the trial court’s decision, is that Sec. 311.660(6) attempts to give the Supervisor arbitrary discretion without a definite standard for his guidance and is an unwarranted attempt to delegate legislative functions and thus delegates power to make law instead of conferring authority or discretion as to its execution. Respondent relies on such cases as State ex rel. Triangle Fuel Co. v. Caulfield, 355 Mo. 330, 196 S.W.2d 296; State ex rel. Continental Oil Co. v. Waddill, Mo.Sup., 318 S.W.2d 281; Automobile Club of Missouri v. City of St. Louis, Mo.Sup., 334 S.W.2d 355, 83 A.L.R.2d 612. Respondent also cites and relies on State ex rel. Anderson v. Mermis, 187 Kan. 611, 358 P.2d 936. That case involved fixing prices of liquor by the director of the State Control Board on the basis of suggested prices by licensed distributors and retailers. The court (1. c. 938) said: “This is the delegation of a fundamental duty of the legislature. Whether there should be minimum prices set upon liquor is at least debatable, and it is for the legislature to determine whether such prices are to be imposed under the police power of the state. We are of the opinion, that the police power of the state is for the legislature to apply, and we believe this delegation of the ultimate use of the police power is sufficient to render the statute unconstitutional.” The court noted (1. c. 939) : “Nowhere in the statute is the director given any authority over the reasonableness of the prices suggested”; and stated: “[W]e are content to believe that it is fundamental that the legislature may not leave to the discretion of administrative officials the question of the application of the police power in a certain field. This is quite different from the usual method in which the legislature determines that a danger to public welfare should be regulated under the police power, and then assigns to administrative officers the matter of working out regulations under guide posts announced by the legislature.” Thus the Kansas case involved the making of policy that the Legislature had to decide and not the delegation of authority to make rules for administration of a policy which the Legislature had decided to put into effect. In Anheuser-Busch, Inc. v. Walton, 135 Me. 57, 190 A. 297, cited by respondent, the Liquor Commission attempted to increase fees and taxes by regulations; and the court held the Legislature had not given the Commission any authority to do so.

However, respondent says our Legislature has not seen fit to declare any policy concerning advertising of intoxicating liquor except to make unlawful window displays of intoxicating liquor (Sec. 311.350) and prohibiting misrepresentation of brands sold or offer of substitution of liquor of one manufacturer for that of another (Sec. 311.360) and claims the Supervisor cannot enlarge on those provisions. Nevertheless, this does show some indication of policy to limit inducing sales by advertising, especially the prohibition of window displays. Furthermore, Regulation 15(f) (5) concerns not only advertising but stimulating sales by offers of a prize or premium in an advertisement. Regulation 15(f) does not probibit advertising but only false, misleading, untruthful and obscene statements in advertising and this seems in accord with Sec. 311.360. It does regulate advertising in certain other respects in addition to sub-paragraph (5) such as prohibiting licensees’ signs in dance halls, places of entertainment and restaurants that do not have licenses and prohibiting use of loud speakers or public address systems other than regular radio advertising, which is not involved in this case.

It has been held proper to regulate advertising of liquor to discourage artificial stimulation of liquor consumption; 48 C. J.S. Intoxicating Liquors § 197, p. 328 ; 30 Am.Jur. 549, Intoxicating Liquors, Sec. 35; Annotation, 19 A.L.R.2d 1114. In Corn-monwealth v. Anheuser-Busch, Inc., 181 Va. 678, 26 S.E.2d 94, this was done by regulations under statutory authority stated in very broad terms. The State Control Board’s authority was to “make reasonable regulations, not inconsistent with this act * * * as the board shall deem necessary to carry out the purposes and provisions of this act, etc.” (including prevention of specified illegal acts but not mentioning advertising). The Board’s regulation permitted only licensed dealers to advertise. The court held the Board could require the billboards of Anheuser-Busch (which was unlicensed) to be taken down, saying: “The police powers of the State with reference to the control of intoxicating liquors is to be distinguished from its powers to regulate traffic in other things. It would be different if the business sought to be followed was one of the ordinary pursuits in which all persons are enabled to engage. * * * To unduly encourage, by display advertisements throughout the State, the use of alcoholic stimulants, or to stimulate that use, is highly undesirable.”

The State says Sec. 311.660(6) does not vest the Supervisor with arbitrary discretion to make rules and regulations because he is limited to making rules that are reasonable and consistent with this law, saying: “This is implied in the rule making power of necessity, in order to construe the statute validly. It is also expressed in Section 311.660, RSMo,” because “it may be reasonably inferred from the use of the term ‘other’ in subsection (10), that the limitation, that such other rules be necessary, reasonable and consistent with this law, also applies to the other nine subsections of the statute including subsection (6).” The State says Subsection (6) so construed must be thus read: “(6) Establish rules and regulations for the conduct of the business carried on by each specific licensee under the license [as are necessary and feasible (reasonable) for carrying out the provisions of this chapter, as are not inconsistent with this law] * *

We think this is a reasonable construction of the rule-making authority given by Sec. 311.660. As we said in Zinn v. City of Steelville, 351 Mo. 413, 173 S.W.2d 398, 402: “It is also a well established rule of construction that even if there are two possible constructions of an ordinance, or statute, the one which would uphold its validity will be adopted rather than the one which would defeat it.” It was stated in Pressman v. Barnes, 209 Md. 544, 121 A.2d 816, 822: “Generally, a statute or ordinance vesting discretion in administrative officials without fixing any standards for their guidance is an unconstitutional delegation of legislative power. But we also hold, as a qualification of the general rule, that where the discretion to be exercised relates to police regulations for the protection of public morals, health, safety, or general welfare, and it is impracticable to fix standards without destroying the flexibility necessary to enable the administrative officials to carry out the legislative will, legislation delegating such discretion without such restrictions may be valid. * * * The modern tendency of the courts is toward greater liberality in permitting grants of discretion to administrative officials in order to facilitate the administration of the laws as the complexity of governmental and economic conditions increases.” See also Davis, Administrative Law Treatise, Sec. 2.15; 1 Am. Jur.2d 899, Administrative Law, Sec. 102. We have thus stated this same rule in Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 490, certiorari denied Williams v. Golden, 311 U.S. 675, 61 S.Ct. 42, 85 L.Ed. 434: “ ‘On the other hand, it is equally well settled that it is not necessary that statutes or ordinances prescribe a rule of action where they deal with situations which require the vesting of some discretion in public officials, as, for instance, where it is difficult or impracticable to lay down a definite, comprehensive rule; or where the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety, and general welfare; or where personal fitness is a factor to be taken into consideration.’ ” See also State ex rel. Ludlow v. Guffey, Mo.Sup., 306 S.W.2d 552; Kalbfell v. City of St. Louis, 357 Mo. 986, 211 S.W.2d 911, 915. Furthermore, we are considering regulation of sale of intoxicating liquor, as to which we said in State v. Wipke, 345 Mo. 283, 133 S.W.2d 354, 359: “‘[T]he liquor traffic is not a lawful business, except as authorized by express legislation of the state; that no person has the natural or inherent right to engage therein; that the liquor business does not stand upon the same plane, in the eyes of the law, with other commercial occupations. It is placed under the ban of law, and it is therefore differentiated from all other occupations, and is thereby separated or removed from the natural rights, privileges, and 'immunities of the citizen.’ ” See also Pompei Winery, Inc. v. Board of Liquor Control, 167 Ohio St. 61, 146 N.E.2d 430, certiorari denied 356 U.S. 937, 78 S.Ct. 780, 2 L.Ed.2d 813.

In Ackerman v. Kogut, 117 Vt. 40, 84 A.2d 131, it was claimed there was an unconstitutional delegation of legislative power to the Liquor Control Board without setting up any standards to govern it (“to prescribe such rules and regulations * * as may be necessary to carry out the provisions of this chapter”) citing the separation of powers provisions of the state constitution as respondent has cited here Art. II of our Constitution, V.A.M.S. The court ruled: “Since traffic in intoxicating liquor is a mere matter of privilege because it is of a character tending to be injurious, discretion may lawfully be delegated to public officials without prescribing definite rules of action.” See also Permenter v. Younan, 159 Fla. 226, 31 So.2d 387, 389; Blackman v. Board of Liquor Control, 95 Ohio App. 177, 113 N.E.2d 893; Gatlinburg Beer Regulation Committee v. Ogle, 185 Tenn. 482, 206 S.W.2d 891; In re Kaye, 11 Alaska 556, 562; 30 Am.Jur. 629, Intoxicating Liquors, Sec. 163; 38 Am.Jur. 29, Municipal Corporations, Sec. 340; 9 McQuillin on Municipal Corporations, 3rd Ed., 162-168, Secs. 26.66-26.67; 1 Am.Jur.2d 921, Administrative Law, Sec. 116. We will not go as far as some of the cases to hold there can he arbitrary action because the privilege to engage in the liquor traffic is involved. See 30 Am.Jur. 546, Intoxicating Liquors, Sec. 31; 16A C.J.S. Constitutional Law § 512, p. 359. Our view is that the authority of the Supervisor only is to make regulations that have a reasonable relation to the provisions of the Liquor Control Act. Our conclusion is that Regulation 15(f) (5) does have a reasonable relation to its provisions and purposes. Sec. 311.332 makes it unlawful for a wholesaler to grant a retailer “directly or indirectly, any discount, rebate, free goods, allowance or other inducement.” See also Secs. 311.334 — 311.336 concerning required schedule of prices. As noted, Regulation 15 applies to all licensees and we consider it reasonable and in accord with the purposes and provisions of the Liquor Control Act to apply to all licensees the concept of prohibiting free goods, allowances, rebates, premiums, and other similar inducements for buying more intoxicating liquor. See Darling Apartment Co. v. Springer, 25 Del. 420, 22 A.2d 397, 137 A.L.R. 803, 807.

For these reasons, we cannot sustain respondent’s further contentions that the statute and rule as interpreted and applied by the Supervisor contravene the equal protection clauses of the Missouri and United States Constitutions; that Rule 15(f) (5) is not authorized by Sec. 311.-660(6); and that Rule 15(f) (5) is unreasonable, arbitrary and capricious and bears no reasonable relation to the purpose which it allegedly sought to accomplish. As to respondent’s contention that application of Rule 15(f) (5) to the Santa Claus bottle cover was arbitrary, capricious and unreasonable because “for years attractively packaged and wrapped liquor was being and had been advertised and sold for the holiday trade for the same price as that put up in ordinary bottles,” there are several distinctions to consider. In the first place, it appears that customarily Christmas wrappings and unusual containers are furnished by manufacturers and the Supervisor has not undertaken to regulate that practice. Secondly, respondent’s advertising was that purchasers of certain liquors were getting some additional article “free”, which certainly conveyed the meaning of offering a premium or prize and we consider that to be its reasonable construction. Respondent now argues the lack of value of the article offered but it certainly did not do so in its advertisement. Furthermore, as said in 2 Am.Jur.2d 26, Administrative Law, Sec. 194: “There can be no vested right in disrespect for the law. It cannot be claimed that revocation of a license is discriminatory because of previous inaction on the part of an agency in failing and neglecting to revoke other licenses for similar violations.” We further find respondent’s contention that Regulation 15(f) (5) is invalid because “terms used in the rule, ‘coupon, premium, prize or rebate,’ are not defined,” to be without merit. Certainly the words “premium” and “prize”, herein involved, are well understood. See Webster’s New International Dictionary, Third Edition.

The judgment is reversed and the cause remanded with directions to affirm the order of the Supervisor of Liquor Control.

All concur.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Benjamin Jeal SMITH, Appellant.
    No. 50200.
    Supreme Court of Missouri. Division No. 1.
    Nov. 9, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 14, 1964.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
    Wayne H. Bigler, Jr., and James W. Singer, III, Husch, Eppenberger, Donohue, Elson & Corn feld, St. Louis, for appellant.
   HOLMAN, Judge.

Charged by indictment with the offense of murder in the second degree defendant, Benjamin Jeal Smith, was found guilty and his punishment fixed by the jury at imprisonment in the penitentiary for a term of fifteen years. See §§ 559.020 and 559.-030 (all statutory references are to RSMo 1959, V.A.M.S.). He has appealed from the judgment and sentence.

At about 9 o’clock p. m. on October 19, 1962, Otha Lee Brown was standing on the sidewalk in front of Floyd’s Tavern, 5538 Vernon, in St. Louis, Missouri. He had a bottle of beer in his right hand and was talking to a passenger seated in an automobile parked in front of the tavern. Suddenly there were five shots which appeared to come from the rear of the car, in the vicinity of Arcade Street. As the shots were fired Brown turned to his left toward the direction from which the shots came. He then staggered around toward the front of the automobile and fell, face down, in the street. A pool of blood collected near his body and one of the eyewitnesses testified that he saw “the man laying down there dead.” Within a short time a number of police officers arrived, and as Officer Mohrman placed Brown on a stretcher, a small caliber pistol fell from the clothing on the upper part of Brown’s body. The gun was delivered to another officer. Mohrman proceeded immediately to take Brown to City Hospital No. 2 and, shortly thereafter, took Brown’s body to the city morgue where it was identified by his widow an hour or so later.

Two days thereafter police officers John Van Hook and Roy Miller arrested the defendant and questioned him at the police station concerning the death of Brown. At that time defendant made an oral statement in which he stated that in the early evening of the day in question he was engaged in a dice game on the street in the area of Arcade and Vernon Streets; that Otha Brown accused him of taking a dollar from him, and when he refused to give Brown a dollar Brown walked to his automobile and obtained what appeared to be a gun; that he then returned to the game where he struck the defendant and snatched a dollar out of defendant’s hand; that defendant then left the area and as he ran through an areaway Brown pursued him, and defendant heard what sounded, like a shot from a gun. Defendant further stated that he went to his home where he remained about thirty minutes and obtained a gun which he placed in a paper sack and carried under his arm as he left; that he stopped by the house of one Don Holmes and while there talked with a fellow named Love who had been in the dice game, and Love informed him that Brown had said he “was sorry for what he had done and would give [defendant] back his dollar whenever he saw him”; that defendant then proceeded to Floyd’s Tavern where he saw Brown standing by the automobile and, in order to get Brown’s attention, said “Hey,” and Brown turned around and appeared to be reaching in his trousers pocket or waistband; that he, believing that Brown was trying to get his gun, pulled his revolver out of the paper sack, pointed it in the direction of Brown, and fired until all of the loaded cartridges were used, which was five times; that after firing the shots he ran west across Arcade and then walked south on Goodfellow until he reached the Hodiamont car tracks where he boarded an eastbound streetcar. He rode the streetcar to Broadway Avenue, left the car and walked to the McKinley Bridge, and continued walking east on the bridge about 450 feet to a point where he threw the gun, still wrapped in the paper sack, over the north side of the bridge.

Defendant testified in the case but his testimony will not be stated herein because it is substantially the same as the statement he made to the police.

The State called as a witness Dr. John J. Thomas who testified that he was the pathologist for the coroner’s office. He stated that when a body is taken into the morgue it is given a number and a name and the clerk puts the name on the body. The witness produced the record in Case No. 2483 which he stated was a record of the coroner’s office which was kept in the regular course of the business of that office; that said case carried the name of Otha Lee Brown. Preliminary to making an objection, defendant’s attorney elicited from the witness the fact that he had not known Otha Lee Brown and had no personal knowledge that he was the person named in the record produced. The court nevertheless admitted the record into evidence and the witness testified therefrom that he had conducted a post-mortem examination of the body of Otha Lee Brown at about noon on October 20, 1962. He related that an external examination showed two penetrating gunshot wounds in the chest and that one of the bullets was shown to have made an exit in the back; that as a result of the examination the witness had concluded that the cause of Brown’s death was a gunshot wound of the heart.

The sole contention briefed by defendant is that “the State wholly failed to establish the corpus delicti by competent evidence.”

“In every criminal case the corpus delic-ti must be proven.” State v. Simler, 350 Mo. 646, 167 S.W.2d 376, 383. “In murder, the corpus delicti consists of two elements: (1) The death of the person alleged to have been murdered, and (2) the criminal agency of someone other than deceased causing the death.” State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396, 397.

We have concluded that there is ample competent evidence in the transcript to prove the corpus delicti, i. e., that on the occasion in question, Brown was shot and that he died almost immediately as a result of the gunshot wounds. Brown was identified by a number of eyewitnesses as the man standing beside the car. Shots were fired and he ran into the street and fell on his face. A large pool of blood immediately ran from his body. A witness stated, without objection, that Brown was then dead. A policeman took Brown’s body to the hospital and almost immediately thereafter conveyed it to the morgue where it remained. In our opinion those facts alone are sufficient to warrant a finding that Brown died and that his death was the result of the gunshot wounds.

Defendant, however, relying on a statement to that effect in State v. Simler, supra, says that the law demands that the corpus delicti must be proved by the best evidence which, in the nature of the case, is available. He contends that in the case at bar the best evidence of the cause of the death of Brown was the result of a postmortem examination; that there was no competent evidence concerning such an examination because there was no admissible evidence tending to prove that the body upon which Dr. Thomas performed the autopsy was the body of Otha Lee Brown; that the record produced by Dr. Thomas which showed that the autopsy was performed on the body of Otha Lee Brown was improperly admitted and thus the testimony of Dr. Thomas, based upon that record, was hearsay and should have been excluded.

It is true that Dr. Thomas testified concerning the post-mortem examination by referring to and reading from the record he made at the time of said examination. We have concluded, however, that said record (State’s Ex. 14) was properly admitted in evidence under the provisions of § 490.680 of the Uniform Business Records as Evidence Law. It was a record required to be kept by the provisions of § 58.451(2), and the testimony was that it was a record of the coroner’s office kept in the regular course of the business of that office. In disposing of a similar contention we recently stated that “[i]n his capacity as pathologist and in making his post-mortem examination and report Dr. Connor was a public official. Supp. V.A. M.S., Sec. 58.451. Here the record of his examination was accounted for and identified as a record kept in the coroner’s office and it is no longer a valid objection to this and similar reports that they are ‘hearsay.’ V.A.M.S., Sec. 490.680.” State v. Cheatham, Mo., 340 S.W.2d 16, 19.

We have concluded that the corpus delicti in this case was proved by an abundance of evidence which was properly admitted. The sole point briefed by defendant is therefore ruled adversely to his contentions.

An examination of the record as required by S.C. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


author: HYDE, Judge.

text:
    Alice F. THOMSON et al., Appellants-Condemnees, v. KANSAS CITY, Missouri, a Municipal Corporation, Respondent-Condemnor.
    No. 50924.
    Supreme Court of Missouri, En Banc.
    Nov. 9, 1964.
    Rehearing Denied Dec. 14, 1964.

      Herbert C. Hoffman, City Counselor, Ned B. Bahr, Asst. City Counselor, for respondent Kansas City.
    Charles E. Thomson, Kansas City, for appellants Thomson.
   HYDE, Judge.

This is a proceeding for condemnation of easements through appellants’ land for construction and maintenance of sanitary sewer, in which a freeholders’ jury authorized by Sec. 142 of the Kansas City Charter awarded no damages. The jury found “that the benefits equal or exceed the damages” for the sewer right-of-way easements across defendants’ land. Judgment was entered in accordance with this verdict, which was affirmed by the Kansas City Court of Appeals, Thomson v. Kansas City, 379 S.W.2d 194. We transferred the case under the provisions of Sec. 10, Art. V, Constitution, V.A.M.S.

The Court of Appeals stated the following material facts. “Appellants, Alice F., Bessie E., Renick A. and Tracy A. Thompson are the owners of an approximately 23 acre tract located near 35th and Eastern Avenue in Kansas City. Tracts No. 9 and 9A, as described in the City’s petition, relate to this tract. No. 9 describes a line of approximately 430 lineal feet (total of two separate lines on each side of appellants’ tract) along and upon the Thompson property and contains an area 5 feet in width on each side of this line for use as a sewer right of way. After construction of the sewer this strip 10 feet in width will be covered over and may be used by the landowner, but the City retains an easement thereon. Tract 9A describes an additional strip 10 feet wide — 5 feet on each side of Tract 9. The 9A easement is temporary and would terminate upon completion of the sewer construction — a period estimated to be not less than 6 nor more than 12 months. The plans provided for construction of only a sanitary sewer and not a combined sanitary and storm sewer. * * * Mr. William E. Thompson was the only witness who testified for the condemnees. He said this 23 acre tract was purchased by his father in 1927 for a price of $500 per acre; that the family for many years had been ‘operating quarries and crushing stone’; that before buying this tract extensive exploration had been done on it and valuable limestone deposits known as Bethany Falls and Winterset ledges had been discovered underground. He stated that the area was wooded and the West 180 feet was zoned for heavy industry. This tract has not, during the 37 years since its purchase in 1927 by tbe Thompsons, been used for anything. Mr. Thompson said a demand was developing for these rock products and he expressed the opinion the 23 acres were worth between $9,000 and $12,000 per acre for such use which in his opinion was the highest and best use. To recover these rock deposits economically requires the use of high explosives and heavy blasting. In Mr. Thompson’s opinion such blasting would probably damage the sewer and therefore the tract was severely damaged insofar as economic recovery of the rock deposits was concerned.” Reference to other facts will be made in connection with our rulings.

The condemnation proceedings were under Art. VI of the Charter of Kansas City, Secs. 149, 151 and 152 thereof, providing the procedure as follows:

“Sec. 149. Rules for fixing compensation. The jury of freeholders shall ascertain the just compensation to be paid, as follows: * * * Second. For each piece of private property taken, when the public use thereof may be such that the city need only have such possession and control as shall not wholly exclude the beneficial use thereof by the owner or owners, the actual damage from the public use specified in the ordinance.
“Sec. 151. Jury to assess benefits. If the land to be purchased, taken or damaged as aforesaid, is to be paid for by the assessment of benefits upon real estate, whether the land acquired is to be condemned or purchased, the jury of freeholders, to pay compensation for the land purchased, taken or damaged, shall determine the amount of benefit to the city at large, inclusive of any benefit to the property of the city, and shall determine the value of the benefit of the proposed improvement to each and every lot, piece and parcel of private real property, exclusive of the buildings and improvements thereon, within the benefit district, if any benefits is found to accrue thereto. In case the total of such benefits, including the benefits assessed to the city at large, equals or exceeds the compensation ascertained to be paid for the property purchased, taken or damaged, then said jury shall assess against the city the amount of benefits to the city as aforesaid and shall assess the balance of the cost of such improvement against the several lots and parcels of private and real property found benefited, each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit to all the private real property assessed.
“Sec. 152. Verdict. The jury of freeholders shall then render a verdict in said cause, which shall show:
“First: A correct description of each piece or parcel of private property taken, if any, and the value thereof, and of each piece of property damaged, and the amount of damages thereto, for which compensation is to be paid, as ascertained by the jury as above provided. In case the property to be taken or damaged is to be paid for out of the city’s general fund or from the proceeds from a sale of bonds, or out of other funds of the city, and not by the assessment of benefits against real estate, no further finding of the jury shall be necessary.
“Second. If the property purchased, taken or damaged is to be paid by the assessment of benefits upon real estate, such verdict shall also show, for the payment of compensation for the property purchased, taken or damaged, the amount, if any, assessed against the city, and the amount assessed as benefits against each piece and parcel of private property with the benefit district found to be benefited. Such verdict, when confirmed as hereinafter provided, shall stand as a judgment against the city for the amount so assessed against the city.”

The verdict of the freeholders’ jury in this case as to appellants’ land was: “We the jury find that the benefits equal or exceed the damages as to Tract 9 and 9A and award no dollars — $0.00.” The verdict was the same as to each tract taken from eight other landowners in the sewer districts involved. Apparently from the exhibits filed, the City obtained easement conveyances from some landowners who were not involved thereafter in the condemnation proceeding. We agree with the rulings of the Court of Appeals that appellants’ first two points, which are obviously correct statements of law, have no real bearing on the decision of this case, namely (1) “Private property cannot be taken nor damages for public use without just compensation” ; and (2) “Only special benefits, as distinguished from general benefits, may be set-off against damages for property taken by condemnation.”

As did the Court of Appeals, we next consider appellants’ fourth point in which they complain that the procedure set out in the Charter was not followed because the jury did not ascertain and state the damages to their land (and the land of others) and did not show the amount assessed as benefits against each parcel of private property in the benefit district. See In re Main Street (Kansas City v. Armour), Mo.Sup., 198 S.W. 821, and City of Kansas City v. Baird, 98 Mo. 215, 11 S.W. 243, 11 S.W. 562, considering substantially the same procedure required by previous charters. It clearly does appear from the court’s instructions and the verdict in this case that the charter procedure was not followed. Instead the procedure followed was like that in state highway condemnation cases, where all damages are paid by the state instead of by special benefit assessments against landowners in a special benefit district. However, appellants did not allege error in this respect in its motion for new trial. It stated therein in several different ways the failure to allow them damages but did not mention failure to assess benefits on the lands in the district nor the failure to separately assess benefits and damages. Morever it made no specific objections to any instruction, as required by Rule 79.03, V.A.M.R. to preserve error for review. Furthermore, appellants offered an instruction, given by the court, which required the same procedure of deducting special benefits from appellants’ damages as that given at the request of the City.

The pertinent part of Instruction No. 1,. given by the court at the request of the City, was:

“If you find and believe from the evidence that the special and peculiar benefits, if any, to any of the tracts described in evidence equal or exceed the damages to said tract or tracts, if any, from the proposed improvement, then you shall not report an allowance for damages to such tract or tracts.
“In the event you determine the damages exceed the special and peculiar benefits to the property of the condemnees, it will then be your province to determine by the assessment of benefits to the City at large, if any, and to the property within the benefit district referred to in evidence in this case, exclusive of condemnees’ property, such amount as shall be necessary to pay such damages.
“You are further instructed that said ordinance (Committee Substitute) declares that certain private property is deemed benefited by the proposed improvement and may be assessed and charged to pay compensation therefor in accordance with applicable charter provisions, and you may take this into account when you make your deliberation on your verdict.
“To pay the compensation for the easements taken, as described in evidence, and for any damages to the lands affected, if any, the jury shall first determine the amount of benefits to the City at large, if any, inclusive of any benefit to the property of the City, if any, within the benefit district, as fixed in said ordinance, and assess the same against the City; next, the jury shall determine the value of the benefit of the proposed improvement, exclusive of condemnees1 property, to each and every lot, piece and parcel of private real property, exclusive of the buildings and improvements thereon, within the benefit district, if you find any benefits accrue thereto. In case the total of such benefits, including the benefits, if any, assessed to the City at large, equals or exceeds the compensation ascertained to be paid for the property taken or damaged, then you shall first assess against the City the amount of benefits, if any, to the City, as aforesaid; and, second, you shall assess the balance of the cost of such improvement against the several lots and parcels of private real property found benefited, if you so find; each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit of all the private real property assessed.”

Instruction No. 2 given at the request of appellants contained the following directions :

“[I]f the jury find from the evidence that the property of the defendants and condemnees Thomson mentioned in evience is damaged, then the jury should allow the said defendants and condemnees:
“First, the fair reasonable market value of Tract No. 9 which is the property actually taken by the condemnor from the condemnees Thomsons’ land, as shown by the evidence.
“And second, for such damages, if any, to the remainder of the condemnees Thom-sons’ said land caused by the establishment, construction and maintenance of the sewer in question, over said Tract No. 9 on said condemnees’ land, which you may find from the evidence, condemnees aforesaid have sustained thereby; and the total amount found on account of these two items, less any special benefits, the amount of which has been proved, if any, as defined in other instructions herein, as will accrue to said condemnees’ remaining property, will be your verdict for the condemnees Thomson in this case, if your verdict in this case is for the condemnees Thomson.” (All emphasis in instructions ours.)

Appellants by requesting this instruction agreed to and joined in the method of determining their benefits and damages submitted by the City. Therefore, they are in no position to complain of the failure of the court to require the jury to separately assess benefits and damages, particularly since the instruction given at the City’s request excluded assessment of benefits against appellants’ land in any amount greater than the damages found. See City of Jefferson v. Wells, 263 Mo. 231, 172 S.W. 329.

Appellants remaining contention (third point in their briefs) is that their damages greatly exceed any special benefits assessable against their property. Appellants challenge the following statement of the Court of Appeals: “If it be held that a new highway presumptively confers a ‘special benefit’ upon the adjoining land, we think it follows that a sewer confers such a special benefit upon the adjoining land in a large city or in a residential or industrial area. However, in each case whether it actually does confer such a benefit is for the jury.” If that were not true, there would be no basis for establishing a special benefit district and requiring the landowners to pay for it. Nevertheless that principle as applied in state highway condemnation cases, where the landowners pay no part of the cost, does not provide the whole answer in cases like this one where a special benefit district is established for the purpose of requiring the landowners to pay for the cost of the sewer. That is the real reason for procedure requiring damages and benefits to be separately determined and stated where landowners pay for improvement costs. See procedure provided for drainage districts, Secs. 242.260, 243.080; and levee districts, Sec. 245.120; see also 17A Am.Jur. 486, Drains and Sewers, Sec. 64; 28 C.J.S. Drains §§ 50 and 59, pp. 387, 409 ; 3 Nichols on Eminent Domain 70, Sec. 8.6209; 18 Am.Jur. 948, Eminent Domain, Sec. 303, Annotation 145 A.L.R. 133— 155. As stated in this annotation (p. 135) the one safe standard is: “[Bjenefits cannot be deducted if, in a particular situation, to allow such deduction would in effect compel the condemnee to pay twice for the same benefit.” See Carroll v. City of Marshall, 99 Mo.App. 464, 73 S.W. 1102; see also Widman Investment Co. v. City of St. Joseph, 191 Mo. 459, 90 S.W. 763. However, as we have noted, in this case appellants’ requested instruction given by the court authorized the procedure of deducting special benefits from damages so that the parties hereto were in agreement on that procedure for this case.

It is true, according to appellants evidence, that their damages would be large and no doubt would exceed any reasonable special benefits from the construction of the sewer. However, the freeholders’ jury was not bound by or required to accept appellants’ evidence and also were authorized to make findings from their own inspection of the premises. Kansas City v. Jones Store Co., 325 Mo. 226, 28 S.W.2d 1008, 1016. Appellants had testimony to the effect that construction of the sewer would prevent the most economical type of blasting on at least the south half of their land, make it too expensive to get out the rock and therefore lessen the value of their land. Appellants also had testimony that, while the west part of their land was zoned for heavy industry, quarrying and a rock crushing plant there was authorized. However, it did appear that the City had restrictions with respect to blasting within its limits although these requirements were not detailed in evidence. Another important consideration for the jury is that the sewer right of way only ran 80 feet across the southwest corner of appellants’ land and 350 feet across their southeast corner but between these two points for more than 1000 feet it was on other land south of appellants’ land. We therefore accept the conclusions of the Court of Appeals as follows: “Other buildings and construction are nearby, the presence of which must be considered before heavy blasting is done. Besides, the Thomsons have owned this property for 37 years. It remains now as it was when purchased — a wooded area. The jury might reasonably conclude that a rock quarry was not the only highest and' best use to which the tract could be put; that blasting operations would not endanger the underground sewer any more than it would the above ground construction nearby, and that the value of the tract was not materially — but only nominally — damaged by the sewer.”

The judgment is affirmed.

All concur.