author: BOHLING, Special Commissioner.

text:
    CHARLES F. CURRY AND COMPANY, a Corporation, Appellant, v. Wyatt C. HEDRICK, Respondent.
    No. 49658.
    Supreme Court of Missouri, Division No. 2.
    May 1, 1964.

      David R. Hardy, Frank P. Sebree, James H. Ottman, Mari W. Privette, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, Wilbur L. Pollard, Williams, Norton & Pollard, North Kansas City, for appellant.

      Arthur R. Kincaid, Wilíiam B. Waters, Robert E. Coleberd, Hale, Coleberd, Kin-caid & Waters, Liberty, Howard M. Fender, Austin, Tex., for respondent.
   BOHLING, Special Commissioner.

This is an action for damages instituted by Charles F. Curry and Company, a Missouri corporation, against Wyatt C. Hedrick of Fort Worth, Texas, arising out of the sale of a Lockheed’ Lodestar twin engine airplane (Identification mark N 555 H) to plaintiff. Service was by attachment, which was released when defendant entered his appearance. The airplane was officially “grounded” as unairworthy by the Federal Aviation Agency (hereinafter referred to as FAA) about seven months after its purchase. It was later returned •to defendant by plaintiff for correction of the discrepancies, which corrections defendant allegedly agreed to make without costs to plaintiff. The making of the corrections deprived plaintiff of the use of said airplane. Defendant, learning plaintiff was asserting a claim for said loss of use, re-fused, under circumstances hereinafter narrated, to surrender said airplane to plaintiff. The action went to trial on plaintiff’s first amended petition, which was in three counts. At the close of the evidence plaintiff’s Count II, in the alternative for "breaches of implied warranties for loss of use of the airplane, was dismissed. Defendant’s counterclaim to recover his costs ($13,815.58) in making the plane airworthy ■was also dismissed. They need not be developed. Count I of plaintiff’s petition, for the loss of use of said airplane, was based upon alleged breaches of certain express warranties. Count III was trover for alleged conversion. Defendant’s answer to Count I, so far as need be noted, denied the •material allegations of plaintiff’s petition. Defendant’s answer'to Count III, briefly •.stated, alleged defendant undertook’ the repair of the airplane as a pure accommodation; that plaintiff concealed his intention to make a claim for loss of use; that when plaintiff presented such claim, defendant refused to deliver said airplane until he was paid the reasonable value, of his services, $13,815.58; and that, upon plaintiff’s refusal to pay, defendant retained possession of the airplane under the Mechanics Lien Law of the State of Texas. Plaintiff’s reply was in effect’ a denial of all affirmative matter pleaded by defendant, alleging defendant’s answer failed to state a defense to plaintiff’s petition. Defendant’s separate motions for a directed verdict on Count I and on Count III, and to dismiss plaintiff’s claim for punitive damages were overruled. The jury returned a verdict for defendant on Count I, signed by ten jurors, and. a verdict for defendant on Count III, signed by nine jurors. We have appellate jurisdiction as plaintiff asked actual damages of approximately $115,000 and punitive damages of $100,000. Plaintiff questions rulings of the trial court with respect to the submission of-issues to the-jury, the refusal and giving of instructions, and the admission and exclusion of evidence.-

The Federal Aviation Agency Act, applicable to this Lodestar, broadly stated, authorizes, in the interests of safety, the Administrator therein created’ to establish minimum standards governing the design, materials, workmanship, construction ’and performance of certain aircraft and their appliances, and reasonable rules and regulations and minimum’standards for their inspection and certification as airworthy or unairworthy.’ 49 U.S.C.A. § 1421.’ It is unlawful, for instance, to operate such aircraft without a current certificate of airworthiness in effect, or in violation of any rule, regulation or certificate issued under said authority. Id., § 1430.

The Code of Federal Regulations (CFR), Title 14 CFR, Aeronautics and Space,. § 18.11 prohibits the return to service of any airframe, powerplant, propeller, or appliance subjected to major repair or alteration before the same has been examined, inspected and approved as airworthy by an authorized representative of the FAA.

Records .of every maintenance, repair, rebuilding or alteration of any airframe, powerplant, propeller or appliance- are to be maintained in a logbook or other permanent record by the owner. Id., § 18.20.

Forms ACA-337, supplied by the Federal Administrator and known as Forms 337 in the record, approving a major repair or alteration are to be executed in duplicate. The original is given to the aircraft owner for his permanent record and a copy is retained by the FAA. Id., §§ 18.22, 18.22-1.

These aircraft and engine maintenance records are to be transferred to the new registered owner upon disposition of the aircraft or engine involved. Id., § 43.23.

One logbook for each engine and a logbook for the airframe are to be kept on twin engine planes. The FAA regulations make provision for 100-hour inspections and for periodic or annual inspections, and require that airplanes, for their continuation in service, be certified airworthy at the periodic or annual inspection, with a copy of the certificate forwarded to the FAÁ.

Charles E. Curry, herein referred to as Mr. Curry, is president and managing officer of Charles F. Curry and Company, plaintiff, which is engaged in the real estate loan business in Missouri, Kansas, Oklahoma and Arkansas. Charles F. Curry, father of Charles E., is also interested in said business. All negotiations in this litigation on behalf of plaintiff were conducted by Mr. Curry.

Defendant is primarily engaged in the architectural and engineering business. He is also interested in ranching, real estate and insurance. He or his companies have owned airplanes since 1923 and many planes since 1945. He maintains an “Aviation Division” at Meacham Field, Fort Worth, Texas. He is not a licensed pilot, has no substantial mechanical knowledge of airplanes, but has flown planes under the supervision of licensed pilots.

In 1960, Tom Stanley, a former business associate of defendant, and George Mulkey, defendant’s office manager, described by defendant as his man “Friday,” informed Mr. Curry of the availability at $125,000 of defendant’s Lodestar airplane. By long distance telephone calls to Fort Worth on Saturday, February 6, 1960, Mr. Mulkey was informed plaintiff would be interested in purchasing the Lodestar at $90,000 subject to approval after an inspection and flight and an overhaul of the engines. This -resulted in arrangements for Marvin Jenkins, pilot and public relations man for defendant, and Jack Keefauver, co-pilot for defendant, to meet and fly Mr. Curry in the Lodestar from Albuquerque, New Mexico, to Kansas City on Sunday, the 7th. On this trip Mr. Jenkins told Mr. Curry the Lodestar was an excellent plane and pointed out work done on it for defendant, stating this made the plane very desirable.

Mr. Curry arranged for Ed Frazier, plaintiff’s pilot, to look at the airplane and report to him, and on Monday, February 8th, Mr. Frazier examined the entries in the Lodestar’s logbook and was taken by defendant’s pilots for a flight in the plane. Mr. Frazier reported to Mr. Curry that a periodic certification of September, 1959, in the logbook stated the airplane was “airworthy,” and that the plane looked like a fine executive type airplane. Said certification of airworthiness was signed by Earl G. King, Jr., then in the employ of defend^ ant, a fact not known to plaintiff.

Count I of plaintiff’s petition was submitted on the theory defendant was liable for making one or more of the following untrue express warranties to induce plaintiff to purchase the aircraft, and that plaintiff relied thereon in purchasing the airplane, to-wit, that said Lodestar airplane was “A-l in every respect,” or was “in first class condition,” or was “airworthy.”

Mr. Curry and his father, following Mr. Frazier’s report, talked with defendant over long distance telephone on February 8th. Mr. Curry’s father did not testify at the trial. Mr. Curry testified that in said conversation defendant represented to him and his father that this Lodestar airplane “was in A-l condition”; was “first class in every respect”; “was ready to fly now”; and “was as good a plane as money could buy.”

Defendant, a witness in his own behalf, testified that said telephone conversation was the only conversation he had with Mr. Curry concerning the sale of this aircraft to plaintiff; that theretofore he had never offered the Lodestar for less than $125,000; that he first asked Mr. Curry $100,000; that Mr. Curry offered $90,000; that while he was asking $100,000 and Mr. Curry was bidding $90,000: “Q * * * [Y]ou represented to Mr. Curry that this plane was airworthy in every respect, did you not? A Yes, sir. Q And you represented to Mr. Curry that it was properly licensed with the FA A? A Yes, sir. Q And you represented to Mr. Curry that this plane was in first class condition, did you not? A Yes, sir. Q And that it was A-l in ■every respect? A I’m sure that I did, sir, yes.”

Defendant, under date of February 9, 1960, wrote plaintiff, outlining the terms of their agreement and stated, in part: “In conclusion, we would like to say that we have found this plane A-l in every respect, for operational purposes, and as I told both you and your father, I believe you have .as good a plane as money can buy and, I think, at an economical price.”

The parties agreed that plaintiff would pay $90,000 for the airplane; $80,000 cash .and later $10,000 upon defendant overhauling the engines. This purchase price was timely paid.

Mr. Curry was not a licensed pilot and knew little about Lodestar airplanes. Mr. Frazier, plaintiff’s pilot, was not licensed to fly Lodestar aircraft at the time of the ■purchase, which fact was known to defendant’s pilots. Plaintiff employed Ernie Blagg •of Dallas as temporary pilot of the Lodestar. Mr. Frazier was licensed as a Lodestar pilot July 25, 1960.

Mr. Curry testified a prior purchase of an airplane from defendant had proved satisfactory, and he relied upon defendant’s statements in purchasing this Lodestar.

The Lodestar was due for a periodic inspection and certification in September, 1960. It had been flown by plaintiff for 225 hours and had had 100-hour inspections, which did not require it to be certificated as airworthy. On September 6th, Mr. Frazier flew the plane to Gopher Aviation, Inc., Rochester, Minnesota, for a 100-hour and a periodic inspection for certification as airworthy. The Gopher company was a certified station for the inspection, repair and certification of aircraft, and previously had performed work for plaintiff.

The Lodestar, upon inspection, was found unairworthy by the Gopher company. This finding was confirmed by a representative of the FAA office in Minneapolis, who found additional items of unairworthiness. The Lodestar was officially grounded as un-airworthy September 29, 1960.

Defendant, in March, 1955, had purchased this Lodestar after the manager of his Aviation Division, E. H. Bradley, an experienced airplane service and maintenance man, inspected the plane and recommended its purchase. This aircraft was not in condition for commercial use and by April, 1956, it had been completely overhauled, defendant testified “rebuilt from A to Z,” under Bradley’s supervision to convert it to executive use for defendant.

A certification, dated February 17, 1954, at the front of the Lodestar’s Aircraft Log stated that “previous logbooks for this aircraft” have been stolen. Subsequent certificates of airworthiness during defendant’s ownership following periodic inspections appear in the Lodestar’s logbook under the dates shown by the following inspectors : 4-18-56, and 6-29-57, J. F. Powers; 7-30-58, W. H. McDaniel, and 9-16-59, Earl G. King, Jr.

Among the more important discrepancies for grounding the Lodestar were, as we read this record: Defendant had installed a Janitrol gasoline fired heater, which was considered unsafe because of the absence of drip pans or scuppers should a leak develop; had installed his type of radio equipment in the nose of the plane, the radio rack of which was unairworthy; and had installed seats and picture windows in the cabin. He substituted shorter for the regular longer exhaust stacks on each engine, with the rear attachments inadequate for proper support. He changed the landing emergency gear so as to require the pilot or co-pilot to leave his seat, go back and open a cover to operate it. Additional modifications of the original aircraft were made.

Forms 337, which should have been executed in duplicate, issued and properly filed approving these and other changes, were not to be found. Plaintiff’s pilot Frazier was informed and he informed defendant’s pilot Jenkins. Plaintiff and defendant endeavored to locate Forms 337. We understand the only Forms 337 found was one with the FAA approving the picture windows and perhaps one for the “flush loops.”

Mr. Curry telephoned defendant September 27, 1960, that the airplane was being grounded because of the improper handling of alterations with the FAA prior to plaintiff’s purchase, and that certain discrepancies were defendant’s responsibility. Defendant’s witness Jenkins testified this conversation was heated at times.

Mr. Curry’s testimony with respect to the agreement between plaintiff and defendant accords with defendant’s version.

Defendant testified in chief he told Mr. Curry that if the irregularities were in any way his responsibility, he would put the airplane in shape for FAA certification without charge, for plaintiff to send the plane to Fort Worth, and that Mr. Curry said nothing about any intention to make a claim for loss of use of the airplane. He testified on cross-examination: “I agreed to put it [the Lodestar] in necessary condition for it to be certified by the FAA Q Right. A We always thought it was airworthy, sir. Q * * * Now, Mr. Curry agreed, did he not, in that conversation and by subsequent correspondence, that if there was any wear and tear and maintenance work that needed to be done that he would pay for that upon notification and his authorization in writing, isn’t that correct ? A I don’t know whether he said that in his conversation but he wrote a letter to that effect, sir. Q Yes. And you agreed to that, didn’t you? A I did. Q All right. And Mr. Curry also agreed to fly the plane down from, or ferry it down from Gopher so that your work in putting it in FAA certified condition would not be as expensive as if it were done at Gopher, isn’t that correct? A That is correct. Q-Now, that was all of the agreement that you had with Mr. Curry, wasn’t it? A Yes, sir.” There was corroborating evidence from some of defendant’s witnesses.

Mr. Frazier flew the plane to defendant’s Aviation Division on October 3rd under a FAA special ferry permit.

We note the more important matters mentioned in the correspondence between the-parties.

Defendant wrote, October 5, 1960, that maintenance work due to wear and tear after the plane left his possession should be met by plaintiff; and asked plaintiff for written authorization to proceed.

Mr. Curry wrote, October 6th, asking with respect to possible charges against plaintiff that defendant, as he had offered to do, advise by letter what such charges, would be before plaintiff authorized any specific work, stating plaintiff was willing to pay for any normal wear and tear items ;• that the loss of use of the plane was a critical item; and, among other things, as-had been discussed by telephone, asked again “that before any cost is incurred, to be borne by us that you inform us what the amount and nature of the expenditure will be, and we will immediately reply to you on the matter. Subj ect to these points” plaintiff authorized defendant to proceed with the work.

Defendant answered October 7th, in part: “Let me conclude this letter by saying we will do nothing that will cost you money, without notifying you by wire or letter. We will do it with the utmost speed. * * Mr. Jenkins will contact your Mr. Frazier for a direct wire or letter over your signature on anything we find on which we think you should hear all or any part of the costs.” (Emphasis added.) He also stated he was fully aware of the time loss involved in getting this plane back into the air.

Defendant, in a deposition read in evidence, testified that the foregoing quotation stated his “position entirely and completely,” and: “Q * * * Now,' let me ask you: Have you at any time from October 7, 1960, received or requested a direct wire or letter over Mr. Curry’s signature authorizing you to incur any cost at the expense of the Charles F. Curry Company? A No.”

Mr. Curry, November 14th, “attention” Mr. Jenkins, wrote that the plane had been grounded since September 7th; that this was a considerable loss to plaintiff, inquired as to the probable date of its return to service, and mentioned defendant’s assurances no costs would be incurred against plaintiff without notifying plaintiff.

Mr. Jenkins, answering November 15th, stated defendant realized the loss of the plane was costly to plaintiff; that defendant was turning away profitable work; that a completion date could not be reliably estimated; that his understanding was that upon completion of the work Mr. Frazier and he would work out the items to be treated as maintenance, and they would proceed on that basis “if we do not hear from you.”

This brought a telegram, November 16th, from Mr. Curry that plaintiff saw no basis for changing the understanding from defendant’s letter of October 7th; and Mr. Sebree, plaintiff’s attorney, November 21st, wrote Mr. Jenkins that plaintiff was proceeding in accordance with defendant’s letter of October 7th; wanted defendant to abide by the original understanding and to bill plaintiff only for items which Mr. Curry authorized in advance; and that unauthorized charges were at Mr. Curry’s discretion.

Defendant, Mr. Jenkins writing, November 23rd, acknowledged receipt of Mr. Sebree’s letter and expressed the thought that upon completion of the work all matters would be amicably settled.

Mr. Jenkins, December 2nd, wrote Mr. Frazier about not obtaining approval of a couch, stating he was hopeful of having the situation made acceptable by adjusting certain safety belts and other work, and that since this work was necessary because of what had been done after plaintiff’s purchase, plaintiff should bear the costs. Mr. Sebree, December 6th, answered stating Mr. Curry would assume liability for any work on the couch necessitated by modifications after his possession of the plane, but defendant was “to itemize carefully such work”; that Mr. Curry did not understand how making the back and arm rests of the couch removable could bear on the position of the seat belts; that unauthorized maintenance items rested in Mr. Curry’s discretion; and that upon FAA certification several things would have to be resolved, including, among others, plaintiff’s, loss of use of the airplane.

Jack Keefauver succeeded E. H. Bradley as manager of defendant’s Aviation Division in February, 1960. He testified at length, stating in part: 56 discrepancies were listed and that 7 were resolved, mistakes that should not have been listed; that some discrepancies arose during plaintiff’s possession of the plane; that on some discrepancies he merely obtained approval for the installation that was already there; that is, a FAA Form 337. The witness, however, testified work was done on the heater and the heater installation was approved as it existed. If he corrected the discrepancies listed under “Heater Installation,” he, among other things, remedied the absence of scuppers which tended to make this installation unsafe. He testified he, among other things, replaced the short exhaust stacks with the original longer exhaust stacks on the engines; installed a different emergency gear extension system, and built a new radio. These items, among others, are traceable to alterations of the plane by defendant in 1955 and 1956; and are among the discrepancies shown to have been “repaired,” “corrected,” or “complied with” on a list witness Keefauver attached to the logbook. All Forms 337 on said list and obtained by defendant in making the plane airworthy are dated December 20, 1960.

Mr. Frazier went to Fort Worth December 21st to test fly the airplane. After the flight Mr. Jenkins told Frazier, having been instructed to do so by defendant, that when he returned for the plane to bring a release from all liability for defendant and a written apology for the letters Mr. Curry’s lawyer had written to him, Jenkins; stating otherwise defendant would let the airplane “sit there till the damn wings fell off” before he would release it. This was the first intimation plaintiff had that defendant was attaching conditions to his surrender of the Lodestar after FAA certificated it.

Defendant telegraphed plaintiff December 23, 1960, as follows: “Lodestar 555H certificated 3 PM this date. Awaiting your disposition subject to letter following.”

The plane had been grounded for approximately three months.

The “letter following,” also dated December 23rd, confirmed said telegram and stated: “It is my pleasure to tell you that when you give me a letter waiving all claims account of delays, loss of usage, and an apology for your letters through your attorney to our Mr. Jenkins, the plane is at your disposal.” It also stated many things had been done to the plane “and we have done it without cost to you and it all has been paid for and borne by me.”

On December 27th plaintiff telegraphed defendant that Mr. Frazier and a co-pilot would call for the Lodestar on the 28th. On the 28th, at Meacham Field, Mr. Frazier and the co-pilot asked Mr. Jenkins for but were refused delivery of the airplane because Frazier did not have the letters defendant demanded for surrendering the airplane. Mr. Frazier reported to Mr. Curry over long distance telephone. Mr. Curry telegraphed defendant on December 28th again demanding delivery of the airplane. Defendant refused to deliver the airplane to plaintiff’s pilots because plaintiff had not sent the releases and the apology he had demanded. Defendant has possession of the Lodestar.

Defendant telephoned Howard M. Fender, his son-in-law and an attorney, on December 28th and told him to “take over the matter,” to send a telegram withdrawing all former promises and agreements and to demand full payment. Mr. Fender testified he advised defendant, based on facts given him by defendant, that defendant could retain possession of the airplane until plaintiff paid the bill. Mr. Fender telegraphed plaintiff, expressly stating: “Re ur telegram my client Wyatt C. Hedrick Dec. 28, 1960, Lodestar was to be released no cost to you in exchange for your release. In view your demand we withdraw offer and are preparing bill for repairs to your account.” The telegram also stated that the Lodestar was being held under the Texas Mechanics Lien Law, and “on payment in full” defendant would release lien and airplane.

Later, defendant submitted a bill to plaintiff for $13,815.58 for repairs to the Lodestar, which defendant testified was for work he had agreed to do at his own costs.

Defendant says the first two points in plaintiff’s brief preserve nothing for appellate review. They read:

“I. Defendant was guilty of conversion as a matter of law in failing to surrender possession of the airplane to plaintiff’s pilots on December 28, 1960, and, therefore, judgment on this issue should be entered in favor of plaintiff.”
“II. The trial court erred in refusing to give plaintiff’s requested instruction lettered ‘G’ which directed a verdict for plaintiff on Count III (conversion) as to liability and submitted to the jury only the issue of damages.”

Plaintiff’s Points I and II are subject to criticism in that they do not fully disclose what appellant contends the trial court did wrong and why he claims it was wrong. Civil Rule 83.05 (a, 3) (e), V.A. M.R.; State ex rel. State Highway Comm. v. Warner, Mo.App., 361 S.W.2d 159, 161 [3]; Domijan v. Harp, Mo., 340 S.W.2d 728, 731 [1, 2] and citations; Ambrose v. M. F. A. Coop. Ass’n, Mo., 266 S.W.2d 647, 650, 651. However, considering those points together, and also the instruction referred to in Point II, plaintiff’s essential contentions are ascertainable.

Plaintiff’s contention, reading Points I and II in the light of this record, is that defendant’s evidence not only failed to establish a legal defense to plaintiff’s Count III (Knisely v. Leathe, Mo., 178 S.W. 453, 461 [11]) but going farther, established defendant had no legal defense thereto and made out plaintiff’s claim under Count III on the issue of liability, leaving only the issue of damages for the jury under said count. An unusual situation exists, embracing as basic an issue as whether plaintiff made a submissible case. It should be reviewed. Knisely v. Leathe, supra; Nelson v. Kansas City, 360 Mo. 143, 227 S.W.2d 672; Conser v. Atchison, T. & S. F. Ry. Co, Mo, 266 S.W.2d 587, 589 [1]; Moseley v. Searcy, Mo, 363 S.W.2d 561, 563 [2]; Pettus v. City of St. Louis, 362 Mo. 603, 242 S.W.2d 723, 728 [5], Consult citations in preceding paragraph. Plaintiff’s two points aforesaid are so interrelated that an intelligent consideration of Point I, embraces, in effect, a consideration of Point II, relating to refused instruction “G.”

Refused instruction “G,” so far as material, read: “The Court instructs * * * with respect to Count III * * * that on December 28, 1960, defendant converted the Lodestar Airplane mentioned in evidence, and your verdict must be for plaintiff on Count III, and you shall assess actual damages on that Count in an amount which you find * * * was the fair market value of said airplane on December 28, 1960, at Fort Worth, Texas, together with interest at the rate of 6% per annum on said amount from December 28, 1960, to the present.”’ The instruction then directs the jury on the issue of punitive damages.

The law with respect to directing a verdict for the party having the burden of proof is well stated in Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 693 [2] (citations omitted) :

“It is a generally accepted rule in this state that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof. * * * There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass. * * *” Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287; Prevost v. Wilkin, Mo.App., 358 S.W.2d 417 [1, 2],

Defendant claims the conversion of the airplane was a controverted fact for the jury. If so, plaintiff’s position is untenable as we have said the party having the burden is not entitled to a directed finding on a controverted fact issue resting in oral testimony, the credibility of proponent’s witnesses being for the jury although his adversary offers no testimony. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558 [2]; Rogers v. Thompson, supra. The issue calls for a consideration of the record at the close of the evidence. We are in accord with defendant’s cited cases holding it is reversible error for an instruction to assume a fact issue that was controverted throughout the trial. Spritz v. St. Louis Pub. Serv. Co., Mo., 341 S.W.2d 790, 793 [1], and cases cited. However, it is not error for an instruction to assume an uncontroverted fact established by the testimony of the proponent and by the testimony of his adversary. Davidson v. St. Louis Transit Co., 211 Mo. 320, 356, 109 S.W. 583, 593; Banks v. Koogler, Mo., 291 S.W. 2d 883, 891 [24]; Siemes v. Englehart, Mo.App., 346 S.W.2d 560, 565 [3, 4],

The conversion occurred in the State of Texas and the parties stress the law of that state.

In Texas and other states: “ ‘Conversion may consist in the wrongful detention of chattels under an assertion of right inconsistent with the owner’s general dominion, particularly when the detention occurs after a demand for possession has been made.’ ” Alexander Trust Est. v. Lindsey Drug Co., Tex.Civ.App., 214 S.W.2d 475, 478; Ellis Oil Co. v. Adams, Tex.Civ.App., 109 S.W.2d 1026 [3], Defendant’s dominion over the Lodestar after effecting the purpose of the bailment, FAA certification as airworthy, adverse to plaintiff’s rights constituted a conversion. Presley v. Cooper, 155 Tex. 168, 284 S.W.2d 138 [6]; Holland v. Lesesne, Tex.Civ.App., 350 S.W.2d 859, 864 [12, 14]; Fenberg v. Fenberg, Tex.Civ.App., 307 S.W.2d 139 [3], The conversion occurred the moment defendant exercised such dominion over the chattel. Holland and Fenberg cases, supra; 89 C.J.S. Trover & Conversion § 61, nn. 75, 76.

Defendant refused the demand of plaintiff’s pilots for the return of the Lodestar on December 28th in Fort Worth, he testified, because plaintiff failed to give him a letter waiving all claims (1) account of delays, (2) loss of usage, and (3) an apology for Mr. Sebree’s letters to Mr. Jenkins. He admitted plaintiff never consented to any of said conditions. He testified the prior agreement evidenced by long distance conversation and letters, including his letter of October 7th, had never been changed in any way; that he wired and wrote Mr. Curry on December 23rd imposing the above-mentioned conditions, and that said conditions “had nothing to do with our previous arrangements.” “Q * * * Now, you knew at that time that Mr. Curry had never agreed or been asked to agree to any of those things, didn’t you? A I knew that I had nothing in writing with Mr. Curry that he agreed or had stated that he would accept that letter. Q You had nothing either in writing or verbally? A No.”

With defendant admitting plaintiff had never agreed to release him from liability or give him an apology, defendant could not lawfully dictate said additional unilateral conditions as a prerequisite to returning plaintiff’s property. Hicks Rubber Co. v. Stacy, Tex.Civ.App., 133 S.W.2d 249 [5] and citation; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458, 467.

Mr. Fender’s telegram, see statement, in reply to plaintiff’s telegram of December 28th demanding the delivery of the Lodestar, stated the Lodestar was being held under the Texas Mechanics Lien Law, and that upon payment in full for the repairs defendant would release the lien and airplane. The bill, for $13,815.58, reached plaintiff a day or two later. Plaintiff contends said mechanics lien law is not a defense to Count III for several reasons.

Defendant did not testify that he refused to surrender the Lodestar under said lien law or because he had not been paid. He .admitted he never requested or received any authorization over Mr. Curry’s signature, which he had agreed to secure, to charge .any part of the $13,815.58 against plaintiff. He testified: “Q * * * This is the question : Isn’t it true that the work covered by that bill which you sent to Mr. Curry was for the work necessary to meet the FAA requirements which you had by your September and early October correspondence and conversations undertook to do at your own cost? A I answered that question. Q What is the answer ? A I said yes.”

Defendant could not base a lawful retention of plaintiff’s airplane upon a demand for more than plaintiff was obligated to pay defendant. See approved instruction in Caldwell v. Auto Sales & Sup. Co., Tex.Civ.App., 158 S.W. 1030, 1032 [4], It is not necessary to note additional grounds .advanced by plaintiff.

Defendant claims he put the 'Lodestar in condition for FAA certification to accommodate plaintiff and there was no consideration for any agreement. There are various definitions of “consideration” as applied to simple contracts. A valuable .•consideration “may consist of some right, ■Interest, profit or benefit accruing to one ■party, or some forbearance, loss or responsibility given, suffered or undertaken by the other.” McGary v. Campbell, Tex.Civ.App., 245 S.W. 106, 116 [10, 11]; Security Drilling Co. v. Rathke Oil Co., Tex.Civ.App., 41 S.W.2d 1019, 1022. Under the testimony of defendant’s witnesses some discrepancies causing the grounding of the Lodestar were chargeable against defendant. Mr. Curry promised and had the Lodestar flown from Gopher Aviation in Minnesota to defendant’s Aviation Division in Fort Worth to save on defendant’s costs jn doing the work. Defendant’s witnesses testified that Mr. Curry was blaming defendant, who told Mr. Curry he could sue. A dispute existed as to defendant’s obligation in the circumstances involved.. It is well settled that the compromise of a disputed claim is a valuable and sufficient consideration to'support a promise. Missouri, K. & T. Ry. Co. v. Edwards, Tex.Civ.App., 176 S.W. 60 [2]; Dempsey Oil Co. v. Hussey, Tex.Civ.App., 254 S.W. 590 [1]; Railroad Comm, of Texas v. Rau, Tex.Civ.App., 45 S.W.2d 413 [16]; 11 Am.Jur., Compromise and Settlement, § 4. Winningham v. Dyo, Tex.Com.App., 48 S.W.2d 600, 604, quotes the following with approval from Sooy v. Winter, 188 Mo.App. 150, 175 S.W. 132, 134 [3]: “‘If one makes an executory contract which lacks a consideration, he may avoid it when called upon for performance. But if he chooses to execute the contract by performance, there is nothing to hinder his doing so, and he cannot turn round and seek to undo his voluntary act.’ ” Dallas Hotel Co. v. Buffington, Tex.Civ.App., 294 S.W. 610 [1].

Defendant’s cases holding a failure of consideration constitutes an effectual defense to the enforcement of a contract or a proper ground for rescinding a contract are not in conflict with the foregoing. Stallings v. Moore, Tex.Civ.App., 73 S.W.2d 562; Food Machinery Co. v. Moon, Tex.Civ.App., 165 S.W.2d 773; Shear Co. v. Harrington, Tex.Civ.App., 266 S.W. 554; Nunn v. Lackey, 1 White & W.Civ.Cas.Ct. App. § 1331. Nor has this plaintiff breached any provision of an agreement, express or implied, as in defendant’s case of Taylor v. Deseve, 81 Tex. 246, 16 S.W. 1008.

If we assume defendant’s offer to fix the airplane was voluntary, defendant might withdraw his help, as he argues. However, Count III is not based on “a withdrawal of a voluntary offer of help.” Defendant is asserting the right to convert plaintiff’s airplane to his own dominion, claiming pos-sessory interests therein when no such interest was created by agreement, or by operation of law, or by any voluntary offer of assistance.

Conversion is a legal wrong which follows certain facts. 89 C.J.S. Trover & Conversion § 1. The conversion results as a matter of law when the essential facts stand judicially admitted. Defendant admitted: (1) Plaintiff’s ownership of the Lodestar. (2) Plaintiff’s bailment of said airplane to defendant under an agreement for defendant to secure its certification by the FAA as airworthy. (3) Defendant’s completion of the work and the FAA’s certification of the airplane as airworthy. (4) Plaintiff’s demand for the return of the airplane. (5) Defendant’s refusal to surrender possession of the 'airplane to plaintiff. (6) The absence of any legal justification for defendant’s refusal. The judicially admitted facts establish defendant’s conversion of the airplane.

Defendant’s statement he never agreed to pay for any items which were not his fault or for ordinary wear and tear items and that plaintiff’s attorney assumed responsibility for the couch gives .consideration only to part .and not .to the whole of the agreement between plaintiff and. defendant. Defendant voluntarily assumed the specific obligation of securing “a direct wire or letter” over Mr. Curry’s signature for any work defendant might think plaintiff should pay for in part or whole. Defendant so understood said agreement but never requested an authorization for plaintiff’s payment of any item. His letter of December 23rd stated all repairs had been made “without cost to you” and had been “paid for and borne by me.” With respect to the couch, Mr. Sebree’s letter assuming responsibility for plaintiff for any work on the couch was restricted to work necessitated by modifications made by plaintiff and upon defendant carefully itemizing such work; and the letter stated Mr. Curry did not understand how the work done by plaintiff caused defendant’s inferences of difficulty with the seat belts. Defendant never explained tó plaintiff how plaintiff’s modification of the couch affected the seat belts and defendant never submitted any itemization of the work thus involved to plaintiff for authorization as defendant had agreed to do.

Defendant also claims instruction “G,” ’supra, is erroneous in that it directed the jury, in addition to the actual damages, to add “interest at the rate of 6% per annum ■on said amount from December 28, 1960, to the .present.”

In Texas interest at 6% per annum between the conversion and judgment dates .is added to the actual damages for. conversion as a matter of law. Lloyds America v. El Paso-Hudspeth Counties Road District, Tex.Civ.App., 107 S.W.2d 1008 [3, 13]; Moore v. Barlow, Tex.Civ.App., 352 S.W.2d 804, 806 [5], stating: “Plaintiff calls our attention to his prayer for recovery of interest after conversion and before judgment. On the authority of Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, plaintiff is entitled to recover interest before judgment. Our judgment is accordingly corrected”; Statler Hotels v. Herbert Rosenthal-Jewelry Corp., Tex.Civ.App., 351 S.W.2d 579, 585 [9, 10]. See § 537.520 (RSMo 1959, V.A.M.S.), authorizing the recovery of damages in the nature of interest in trover and conversion cases, which has been considered declaratory of the common law. Lack v. Brecht, 166 Mo. 242, 65 S.W. 976, 980 [4].

Unless we rewrite the contract established by defendant’s as well as plaintiff’s evidence, which we are not authorized to do, defendant’s liability under Count III stands . established, and plaintiff was entitled to submit said count under its requested instruction “G.”

Instruction No. 11 directed a verdict for defendant on the issue of liability under Count III of plaintiff’s petition. Our holding that plaintiff’s instruction “G,” directing a verdict for plaintiff on said issue of liability as a matter of law, should have been given precludes the submission of said issue under this record to the jury. It is not necessary to develop additional grounds advanced by plaintiff for holding instruction •No. 11 shóiild not have been given.

Plaintiff claims error in the refusal of its instruction No. “F,” reading in part: “You are instructed that at the time that plaintiff purchased the Lodestar Airplane mentioned in evidence said airplane was not A-l in every respect, was not in first class condition and was not airworthy.” The instruction then informed the jury that a warranty existed if defendant made all or any of said representations for the purpose of inducing plaintiff to purchase if such representation were not true when made, regardless of defendant’s knowledge of its truth, if plaintiff relied on such representation in purchasing said Lodestar, etc., and upon such findings the verdict should he for plaintiff on Count I in such an amount as would “compensate plaintiff for such loss of use.” Consult Luckel v. De Vor, Tex.Civ.App., 17 S.W.2d 1097 [4]; Naughton Mulgrew Mtr. Car Co. v. Westchester Fish Co., 105 Misc. 595, 173 N.Y.S. 437, 438 [2]; Vetter v. Browne, 231 Mo.App. 1147, 85 S.W.2d 197 [2],

Plaintiff argues that the Lodestar could not lawfully be flown without costly and time consuming repairs attributable in part to defendant’s converting it into an executive type plane following defendant’s purchase in 1955, and concludes that plaintiff was entitled to have the court instruct that the Lodestar was not “A-l in every respect, was not in first class condition and was not airworthy” at the time plaintiff purchased. Defendant, to obtain FAA certification of the Lodestar as airworthy in December, 1960, in some instances merely obtained approval of the existing installation, in some instances the modification had to he changed, and in one instance at least defendant’s modification was replaced by the original installation. Defendant’s witness Keefauver, on cross-examination, testified that the decisions of the FAA are final for those in the aviation business and a FAA finding that discrepancies make an airplane unairworthy is accepted. Plaintiff’s expert witness Callaway testified on cross-examination that certification of an aircraft as airworthy by a qualified FAA inspector must be accepted. This Lodestar’s log contained certifications of airworthiness after annual inspections in April, 1956; June, 1957; July, 1958, and September, 1959. In addition, there was testimony from defendant, from his chief pilot Jenkins, and from his shop manager Bradley, an experienced airplane service and maintenance man, permitting of findings that this Lodestar was airworthy at the time of plaintiff’s purchase, February 8, 1960. This record does not establish that FAA certifications as airworthy or unair-worthy are infallible and all conclusive. We may not say as a matter of law that the evidence favorable to defendant on this issue should be disregarded as being contrary to known facts and manifestly untrue (Kelly v. Terminal Rd. Ass’n, Mo., 315 S.W.2d 699, 702 [1]; Paige v. Missouri Pac. Rd. Co., Mo., 323 S.W.2d 753, 759 [8]) as urged by plaintiff. Plaintiff relies upon the testimony favorable to his position; but upon the whole record the fact issues here involved were for the jury and not the court.

Plaintiff questions defendant’s instruction No. 10. It directed a verdict for defendant on Count I upon findings “that before the purchase by plaintiff from defendant of the airplane mentioned in evidence plaintiff had an opportunity to inspect said airplane as to its quality, characteristics and suitability and did in fact make such inspection before such purchase and that defendant did not intentionally conceal any material defect, if you find there was such, and that plaintiff did not rely upon representations, if any, made to him by defendant before such sale.”

Defendant says the defense submitted by the instruction was “that plaintiff did not rely upon representations, if any, made to him by defendant before such sale” (Turner v. Central Hdwe. Co., 353 Mo. 1182, 186 S.W.2d 603, 608[12], 158 A.L.R. 1402); that the additional findings hypothesized were unnecessary, imposed an added burden on defendant, and plaintiff has no just ground of complaint (Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461 [17]). The submitted finding “that defendant did not intentionally conceal any material defect, if you find there was such,” conveyed to the jury that if plaintiff failed to prove an intentional concealment of a material fact plaintiff could not recover under Count I for breach of express warranty. Decisions of the Supreme Court of Texas and of this court hold positive affirmations of fact made to induce a vendee to purchase constitute warranties regardless of the seller’s intention or state of mind. Turner, supra, 186 S.W.2d 603 [6, 14]; United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432, 436 [5]. See Logue v. Hill, 218 Ark. 797, 238 S.W.2d 753 [1], Defendant’s position of harmless error does not apply where one of the grounds conjunctively submitted imposes an undue burden on an adversary by an improper statement of the law. Miles v. Gaddy, Mo., 357 S.W.2d 897, 901 [3] and citations; Wilson v. Kansas City Pub. Serv. Co., Mo., 291 S.W.2d 110, 117 [16-19]. We need not develop other criticisms of the instruction. It should be redrafted.

Following defendant’s instructions defendant’s Jenkins informed plaintiff’s Frazier on December 21st that defendant would let the Lodestar “sit there till the damn wings fell off” unless plaintiff in writing released defendant from liability and apologized for Mr. Sebree’s letters to him, Jenkins. Plaintiff claims error in the exclusion of evidence that defendant let the plane sit outside for fifteen months or more without running its engines and the resulting damage to the aircraft. Defendant argues that if he converted the airplane on December 28th his treatment of it thereafter was his business and not plaintiff’s. In this case, however, plaintiff seeks exemplary as well as actual damages under its conversion count, Count III.

Davenport v. Midland Bldg. Co., Mo.App., 245 S.W.2d 460, 465, states: “It is settled law in this state that proof of legal malice alone will support a judgment for punitive damages.”- See also Davis v. Nash Central Motors, Mo.App., 332 S.W.2d 475 [9, 11].

Evidence is considered relevant if the fact it tends to establish tends in turn to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue. Federal Sav. & L. Ins. Corp. v. First Nat. Bank (W.D.Mo.), 3 F.R.D. 487 [3, 4]; Luechtefeld v. Marglous, Mo.App., 151 S.W.2d 710, 714[5, 7]; Crowley v. Crowley, Mo.App., 360 S.W.2d 293, 295[2]. Evidence of other acts of defendant than those alleged for which damages are sought, both preceding as well as following the particular acts, is admissible under an issue of exemplary damages if so connected with the particular acts as tending to show defendant’s disposition, intention, or motive in the commission of the particular acts for which damages are claimed. Peitzman v. City of Illmo, 8 Cir., 141 F.2d 956, 962[20]; Westbrook v. Jefferies, 173 S.C. 178, 175 S.E. 433[1]; Ware v. Cartledge, 24 Ala. 622, 627[27], 60 Am.Dec. 489; Devine v. Rand, 38 Vt. 621, 627; 25 C.J.S. Damages § 159, n.. 67; Annotation, 12 A.L.R. 1032.

We hold plaintiff’s position well taken.

Other points are presented. No doubt upon a new trial the parties will give consideration to the contentions made on this-appeal and the observations herein. In the circumstances we deem it unnecessary to-further extend this opinion.

Civil Rule 83.13(c), V.A.M.R., so far as material, provides: “The appellate-court shall examine the transcript on appeal and * * * award a new trial or partial new trial, * * * or give such judgment as such [trial] court ought to have given, as to the appellate court shall seem agreeable to law. Unless justice requires otherwise, the court shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears.” RSMo 1959, § 512.160(3), V.A.M.. S. Under the record before us defendant’s own testimony established, as did plaintiff’s-evidence, plaintiff’s case against defendant on the issue of liability under plaintiff’s conversion count, Count III. In these circumstances the case under Count III should he remanded for new trial on the issue of damages alone. Cunningham v. Reagan, Mo., 273 S.W.2d 174, 176; Knisely v. Leathe, Mo., 178 S.W. 453, 461 [11]; Stone v. Farmington Aviation Corp., 363 Mo. 803, 253 S.W.2d 810, 813 [7-10]; Haire v. Stagner, Mo.App., 356 S.W.2d 305, 311 [8]; Sachs Steel & S. Co. v. St. Louis Auto Parts & S. Co., Mo.App., 322 S.W.2d 183, 189 [9],

The judgment is reversed and the cause remanded for new trial as to Count I and for new trial on the issue of damages alone under Count III.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: EAGER, Judge.

license: Public Domain

text:
    Mabel B. WILLIAMS, Respondent, v. Herbert H. CAVENDER and Emil G. Trott, Executors of the Estate of Thera P. Cavender, Decedent, Appellants.
    No. 50066.
    Supreme Court of Missouri, Division No. 2.
    April 13, 1964.
    Opinion Modified on Court’s Own Motion and Motion for Rehearing or to Transfer to Court En Banc Denied May 11, 1964.

      Louis F. Cottey, Lancaster, for appellants.
    Bruce Normile, Brown & Normile, Edina, for respondent.
   EAGER, Judge.

Plaintiff, the widow of Minor E. Williams, sued defendant Executors for her husband’s wrongful death in an automobile collision. Defendants’ decedent died almost instantly in the same tragedy. Mr. Williams died six days later from the injuries he sustained. There were no witnesses and we are forced to decide the issues upon purely circumstantial evidence. Plaintiff recovered a verdict and judgment for $25,-000, and defendants’ motions for judgment and for a new trial were overruled.

The collision occurred on U. S. Highway 63 between KirksviMe and Macon, on October 14, 1960, at about 2:15 p. m. This particular stretch of road was of relatively new concrete paving, 24 feet wide; the shoulders were of dirt, 11 feet wide, but soft and muddy at the time. On account of the slope, the west shoulder was somewhat more muddy than the east one. The pavement was dry. Highway 63 runs generally north and south. The collision occurred just south of the approximate center of a gradual curve to the southwest; at that point the road was substantially level. The center line was painted black, with alternating white streaks.

The decedent, Thera P. Cavender, was driving a 1952 Plymouth north toward her home in Iowa; Williams was driving a 1959 Oldsmobile from Kirksville to Macon. The sole witness of any real consequence on the merits was Trooper Charles K. Carlson, one of the two investigating Highway Patrolmen, who was produced by the plaintiff. He arrived at the scene within approximately twenty minutes, and he made various measurements and notations; these were incorporated into a report which he used to refresh his memory. The following is the substance of his testimony, including his physical findings. The Plymouth was headed south, with both of its left wheels on the center line, and the major portion of the car in the west (southbound) lane; its driver appeared to be dead. The major force of the impact on that car was to the right front, but the whole front of the car was demolished; there was some damage to the right door and minor damage on the right rear near the taillight. (The photographs confirm this testimony, generally.) The Williams Oldsmobile was mainly on the west shoulder, headed southwest, and a little north of the Plymouth; its right front wheel was at the west edge of the shoulder, its right rear wheel just off the slab, and its left rear wheel on the west edge of the slab. The impact to the Oldsmobile covered the entire front end, but with marked damage to the left front door. •The rear of the Plymouth was 15 feet south of the left rear corner of the Oldsmobile. The debris “started near the center line,” the majority being in the west lane, but there was debris in both lanes. Mr. Williams was found sitting on the edge of the road, but he said, “I don’t know what happened. Did I hit someone or did someone hit me ? ” He also stated that he was headed toward Macon, that he had his “buzzer” set and, in effect, that he was therefore not going “over 70.”

This witness described three “skidmarks” which he had located and measured. One, which he designated as a pressure mark rather than a skidmark, began “back south of the point of impact,” 4 feet from the east edge of the paving, and ran continuously, first to the north and then somewhat westerly in an “arcing” direction for a total of 44 feet; this mark ended at a point 8 feet and 8 inches from the east edge of the paving and stopped at “approximately the point of the impact” (no objection was made to that statement on direct examination). By simple arithmetic the northerly end of this mark would have been 3 feet and 4 inches east of the center of the road. The witness testified that this mark was of a type “not normally made by applying the brakes,” but was, in his opinion, one made by undue or unnatural force thrown on a car, as in a change of direction; also, that if one turns a car to the left, extra pressure is thrown on the right side. The distance from the end of this mark to the rear of the Plymouth was approximately 23 feet. The witness located and measured a 19 foot skidmark which arced from the left front wheel of the Plymouth, first to the east and then to the north; this was not more definitely described.

Trooper Carlson found further to the north, and measured, a skidmark 29)4 feet long, starting on the center line of the road and running south and west continuously to and under the right rear tire of the Oldsmobile. This mark ran southerly for 18 feet in a gradual angle to the west, at which point it was 2 feet west of the center line; at that point it made an abrupt angle to the west and went 11)4 feet farther to and under the right rear tire of the Oldsmobile. This mark thus extended into and across the west or southbound lane. The abrupt angle in this skidmark was approximately a car’s length from the north end of the 44 foot pressure mark in the east lane, already described. The Oldsmobile was approximately 6 feet wide and 17 feet long; the Plymouth was approximately S feet wide. The Patrolman testified that, although other cars had parked and had pulled on and off the shoulders and some had left tracks, he walked up and down the highway for several hundred feet in each direction and found no other marks that in his opinion were related to the collision. This witness declined to identify as skid-marks any supposed marks shown in photographic exhibits aside from those which he had described orally, stating that he had listed those which he could trace directly to the accident, that he did not recall any others, and that he could not say that any of the things pointed out on the photographs were skidmarks. He did identify various photographs as accurate representations of the damaged cars and of the highway.

A Mr. Huston testified for plaintiff: that, as he drove by the scene going south, after the accident, there were vehicles parked along the sides of the road and on the highway; that he saw to the south of the (wrecked) cars “some tracks” that had gone off the east side of the road, back on the road, off the west side, back on again, and possibly off again on the east side. At one point he said: “I did not see the tracks, only where they had come back on the highway the second time,” but he also stated that the tracks probably began 500-700 feet from (south of) the scene of the accident; whether this was the north end or the south end we do not know. He stated that he had no idea what car made the tracks, although the parked vehicles “wouldn’t leave marks like that.” Apparently the witness did not get out of his car. The Court sustained an objection (obviously intended as a striking) to this testimony as wholly immaterial to the issues and as not sufficiently connected up. Trooper Carlson had previously testified that he found no evidence on the highway to indicate that a car had been out of control in the vicinity and had run off and back on the road; he had also testified that he did not see any fresh tracks running off on one side, back, off on the other side and back on, in a continuous line.

There is no controversy over the fact that the injuries suffered in this collision caused the death of Mr. Williams. Much evidence was produced, and from many witnesses, concerning his earnings, his ability and his intelligence. Since there is no contention that the verdict is excessive, we do not notice this evidence further.

At the close of plaintiff’s evidence defendants moved for a directed verdict on the specific grounds that plaintiff had failed to establish any negligence of defendants’ decedent and that the evidence did establish contributory negligence on the part of Mr. Williams, as related in detail in .the motion. The motion being overruled, defendants offered no evidence, but after that election they re-offered their motion, which was again overruled. Plaintiff submitted her case to the jury on the sole theory that Miss Cavender negligently drove her car into the southbound lane and to the left of her own right half of the highway, while Williams was in his own proper lane, that she was thereby negligent, and that her negligence caused the collision. Plaintiff’s instruction contained the usual “tail” excepting a finding of contributory negligence “as submitted in other instructions.”

Appellants’ first point is that the Court erred in not sustaining their after-trial motion for judgment in accordance with their motions for a directed verdict. Their other points concern plaintiff’s main verdict-directing instruction and certain rulings in connection with the evidence. We proceed, first, to the vital question of the submissibility of plaintiff’s case. It is always unfortunate when we are forced to determine the merits of a case upon such meager and strictly circumstantial evidence as we have here.

We mention, first, the evidence of Mr. Huston, namely, that he saw muddy tracks south of the scene, which first went off the road on one side, back, off on the other side, back, and apparently off again. The testimony was vague and in certain respects apparently conflicting in itself. The trial court sustained an objection to this testimony as immaterial because not in any way connected up with the cars involved. Respondent insists that this ruling was erroneous and that we should consider the evidence here in connection with the sufficiency of plaintiff’s case. While this is somewhat unusual in a jury tried case, we shall do so; one very good practical reason for doing so is that if this evidence should make any material difference, and if the ruling excluding it were wrong, we would feel impelled to remand the case for another trial, even if we held the admitted evidence to be insufficient for a submission.

Unfortunately, there is no diagram or plat in evidence which is of any material assistance. The photographs are helpful as to the location of the cars and the damage to the cars. We are urged by plaintiff to consider certain supposed marks, streaks, etc., in some of the photographs; the Highway Patrolman declined to identify these as skidmarks and confined his testimony to those marks which he had located on the ground and made notes of. We shall do likewise; anything else would be indulging in sheer speculation.

On direct examination of Trooper Carlson by plaintiff’s counsel he was allowed to state, without objection or motion to strike, that the forty-four foot pressure mark (made by the Plymouth) stopped at “approximately the point of the impact”; he further said that the end of the mark was 8 feet and 8 inches from the east edge of the highway. When the witness made essentially the same answer on cross-examination plaintiff’s counsel objected and moved to strike the reference to the “approximate center of the impact” as a conclusion; this was overruled. Substantially the same thing occurred again. Plaintiff insists here that all consideration of the Trooper’s testimony concerning the point of impact must be disregraded, citing Duncan v. Pinkston, Mo., 340 S.W.2d 753, and Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242. Without any impairment of the views we have expressed in those cases, we may say that they are not controlling here. Plaintiff’s own counsel introduced the first such reference to the point of impact. That particular reference constituted, in substance, all that the witness said on the subject. The evidence was in the case, conclusion or otherwise, for whatever it was worth. The subsequent statements were no more than cumulative, at most. Conclusions, and even hearsay, may be considered for whatever they are worth, if not objected to. The matter was not exaggerated here by the use of any diagram pinpointing to the jury the precise point of impact, if that be material, and the testimony dealt with more or less obvious generalities.

The negligence of a party may be established by circumstantial evidence, but the circumstances so established must give rise to an inference of negligence which reasonably follows, without guesswork or speculation. Thompson v. Jenkins, Mo., 330 S.W.2d 802, 804; Schoen v. Plaza Express Co., Mo., 206 S.W.2d 536, 538; Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 670. As said in Bowers, supra, at loe. cit. 670: “For the inference to be legitimate, the circumstances must of course point to the desired conclusion with reasonable certainty; and it is not enough that they may be merely consistent with such a conclusion, or that they may give equal support to inconsistent and contradictory conclusions.” It has frequently been held, and we now reaffirm the doctrine, that if the circumstances support inconsistent conclusions of equal probability, one in favor of plaintiff and one against, the plaintiff has failed in that event to establish her case, or to remove it from the realm of speculation. Bowers, Thompson, Schoen, supra. In Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511, the Court said, at loc. cit. 513: “In cases where the evidence tends to support equally either of several inconsistent factual inferences, some of which result in a failure of proof of defendant’s actionable negligence, the factual issue or issues essential to plaintiff’s case may not be said to be established by legitimate proof.” (Citing cases.)

Thus, we are relegated to the evidence for the application of those rules. The most salient evidentiary facts are: the forty-four foot pressure mark made by the Plymouth, leading up to the place of collision; the gently angling and then sharply veering 29}4 foot skidmark made by the Oldsmobile ; the positions of the cars; the damage to the cars; the location of the point of impact, as best it can be determined, and the location of the. debris as bearing upon that; and, perhaps, the arcing skidmark of 19 feet leading north and east from the left front wheel of the Plymouth. Though we are prohibited from sitting as a jury to weigh the evidence, we must evaluate these circumstances in order to see whether an inference of negligence on the part of Miss Cavender reasonably follows therefrom (Thompson v. Jenkins, supra), and likewise an inference of negligence (contributory) on the part of Mr. Williams.

Defendants persistently argue that plaintiff, having adduced the evidence of Trooper Carlson as the only testimony on the merits, is bound thereby. Generally, that principle is recognized. Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295,299; Krause v. Laverne Park Ass’n, Mo.App., 240 S.W.2d 724, 727. But the question here, actually, is not whether plaintiff is bound by that testimony, but what inference or inferences reasonably and logically follow from it. It is obvious that the Plymouth made the forty-four foot pressure mark with a right wheel, while turning to the left (west) ; if it had been made by a left wheel the right wheels would have been off in the mud to the east. Defendants say that this mark was made by the front wheel, plaintiff says by the rear. More of that later. This mark was wholly in the east lane and ended 3 feet and 8 inches east of the center of the highway. It is also obvious that the 29(4 foot skid-mark farther to the north was made by the right rear wheel of the Oldsmobile, for the only testimony on the subject shows that it led directly to and under that wheel. This mark, in itself, places the Oldsmobile almost entirely in its wrong ^ (northbound) lane immediately prior to the collision ; starting on the center line the mark first angled very gradually back into its own lane for 18 feet, then suddenly made an “abrupt angle” to the west; it ended on the west shoulder 11(4 feet from the “abrupt angle.” It is most reasonable to infer that this abrupt change in direction was caused by the collision. At the point of the angle in this skidmark it was 2 feet west of the center line. A car ordinarily does not shift direction in an angle without some outside force. When we further consider that this change in direction of the Oldsmobile was appoximately a car's length from the end of the Plymouth’s forty-four foot pressure mark, the only reasonable inference is that the right rear wheel of the Oldsmobile was at the angle when the collision occurred, headed almost south. The Plymouth was obviously headed more or less northwest at the time of the impact, or at least somewhat west of north. It is more reasonable to assume that a pressure mark made in turning should be made by a front wheel than by a rear wheel; this for the reason that the forward motion combined with the turn would put more force on the turning wheel. It also seems that if the right rear wheel of the Plymouth had made the pressure mark, it would have been virtually impossible for the Oldsmobile to have traveled in the course it did, for the Impact would have occurred approximately a car’s length farther north or northwest. We conclude that this forty-four foot mark was made by the right front wheel of the Plymouth. Thus, at the time of impact, much of the Oldsmobile was still on the east side of the road, and probably the left front corner of the Plymouth extended into the west lane. With these landmarks, the conclusion of the witness Carlson as to the location of point of impact becomes more or less immaterial, but he placed it at approximately the point just determined, although it was never marked by him. The actual impact thus occurred at or near the very center of the road. The more severe impact on the right side of the Plymouth would seem to have occurred because it was headed somewhat west of north. We further note that the impact turned the Plymouth completely around, just how we need not say, aor can we explain the nineteen-foot arcing skid from that car’s left front wheel. We do not feel that the movement of that car after the actual impact is of any great importance, for it could have little relation to the car’s movements prior to impact. In any event, the Plymouth was knocked back southward about 23 feet by the force of the impact with the larger car.-

The parties have cited several cases, pro and con, decided on circumstantial evidence. Under these circumstances no other case or cases can be a very reliable guide, for each one must depend upon its own individual facts. Other cases may be of some help with regard to the emphasis placed upon certain features of the evidence. We have thus examined the following cases cited by the parties, as well as others: Borrini v. Pevely Dairy Co., Mo.App., 183 S.W.2d 839; Thompson v. Jenkins, Mo., 330 S.W.2d 802; Schoen v. Plaza Express Co., Mo., 206 S.W.2d 536; Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242; Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511; Helton v. Huckeba, 365 Mo. 93, 276 S.W.2d 78; Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736; and Justice v. Malin, Mo., 336 S.W.2d 77. We discuss briefly the cases particularly relied on by the plaintiff. Essentially, what was decided in Helton was that there was enough evidence to give rise to a reasonable inference that the collision occurred on the side of the road occupied by plaintiff’s decedent. This was held to be sufficiently indicated by a gouge mark on that side of the road, the location of the cars, and certain oral testimony of survivors. The evidence was thus held to justify a submission of the issue of defendant’s negligence in driving on the wrong side of the road. In Filkins, supra, the Court similarly held that there was a reasonable inference that the place of collision was on plaintiff’s decedent’s (east) side of the road; both that car and the defendant’s tractor trailer were off the road on the east side, and there was a gouge mark in the pavement on that side with scratches leading from it to the front of plaintiff’s decedent’s car; nothing was found on the west half of the pavement, and the debris was all on the east half. From this the Court found that there arose a reasonable inference that defendant’s tractor trailer was operated to the left (east) of the center of the road and that the issue of defendant’s negligence was submissible. The Court also held, however, that the defendant was entitled to an “emergency” instruction based upon its driver’s testimony that he was suddenly confronted by plaintiff’s decedent’s car in his own lane. In Justice, supra, it was held that one who drives on the wrong side of the road, without suitable explanation, is negligent; also, that there is no presumption of due care in favor of a decedent who has done so. In Thompson, the appeal arose from a judgment directed for the defendant on plaintiff’s opening statement. The Court held on appeal that from the stated evidence there arose a reasonable inference that defendant had driven his car into the wrong lane where it crushed the car of plaintiff’s decedent. The physical facts were that defendant’s car was found headed directly "into” the other car, and that it extended partially over into the wrong (east) lane; that plaintiff’s decedent’s Dodge was in its own lane except where a buckling from the impact on its side had apparently caused its left rear “to extend a short distance” over the center, and that the crushing damage to the Dodge was all on its left side. There was also some indication that defendant’s car had just previously traveled at least partially on the west shoulder and had come back on the road at an angle. In so far as we are concerned here, those cases hold on their particular and respective facts that substantial evidence of the occurrence of a collision on one’s “wrong” side of the road, without explanation, makes a submissible case of negligence against that party. In those cases, the Court was not confronted with evidence which raised two equally probable but inconsistent inferences. We do not quarrel with those rulings. In some of those cases there were more specific physical facts than we have, such as gouges in the pavement, the fact that one car was headed directly into the other, and in at least one, oral testimony.

We hold that here the more probable inferences are: that the forty-four foot pressure mark was made by the right front wheel of the Plymouth; that the impact occurred when the Plymouth was at the north end of that mark, headed somewhat west of north; that the southbound Oldsmobile was almost entirely in the wrong (east) lane when it began the 29(4 foot skidmark made by its right rear wheel, and that the collision occurred when its right rear wheel was at the point of the abrupt angle in that skidmark, with the car headed very slightly west of south; that at the time of impact, giving to plaintiff the benefit of a favorable inference, the left front corner of the Plymouth extended past (west of) the center line; that at the time of impact a very substantial portion of the Oldsmobile (two-thirds of the rear and a gradually decreasing width toward the front) was on its wrong (east) side of the road; that each car was partially on its wrong side of the road; that the impact with the heavier Oldsmobile completely turned the Plymouth around and knocked it southward to its final position. There can be no question of the credibility of the evidence from which we draw these inferences for it all came from plaintiff’s own witness. The location of the debris is not in itself conclusive. Schoen v. Plaza Express Co., Mo., 206 S.W.2d 536, 539; Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 248.

From these inferences it might be argued that both parties were negligent, in the light of the foregoing cases. But there is more to be inferred from this set of facts. The Oldsmobile had been wholly in the east (wrong) lane as clearly shown by its skidmark and was attempting belatedly to get back. The Plymouth was swerving sharply to the left and was just beginning to get into the west (wrong) lane. These inferences, which we hold to be reasonable and probable, furnish a reasonable explanation of Miss Cavender’s actions; she could see without obstruction, for the curve was not sharp; the further reasonable inference is that she saw the Oldsmobile on her side of the road and chose the hazardous course of swerving to her left instead of taking to the muddy shoulder. We cannot say that such action, probably taken in a fraction of a second and under those circumstances, would constitute negligence. In Borrini v. Pevely Dairy Co., Mo.App., 183 S.W.2d 839, at loe. cit. 844, 845, the Court said: “In construing this statute, it has been held that one traveling on the highway is not necessarily guilty of negligence when turning to the left, because one turns to the left in an attempt to avoid another vehicle approaching from the opposite direction; but, that the question as to whether such negligence exists depends upon the facts and circumstances of the particular case. Under appropriate circumstances, a motorist meeting another automobile may turn to the left. * * * The suddenness of the turn indicates that there was some compelling force for his conduct, and that apparently he was confronted with a sudden emergency; but, we cannot presume that the turn was made in utter disregard of the safety of others, for negligence is never presumed.” See also: Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, 545-546; Filkins v. Snavely, supra; Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, 528. These cases deal with similar emergencies. In this latter view we find no substantial evidence of negligence on Miss Cavender’s part. We do not rely upon any presumption of non-negligence, but upon the inferences which reasonably follow from the evidence. And if the evidence should be held to justify two equally established but inconsistent inferences, plaintiff has not established a submissible case. See cases already cited.

If it be said that such an inference of an emergency here borders on the speculative, and that there has been no sufficient explanation for Miss Cavender’s swerving (which we do not hold), we still arrive at the same result. The positive evidence of the skidmark of the Oldsmobile convicts plaintiffs decedent of negligence directly causing or contributing to the collision, as a matter of law. Reasonable minds could hardly differ in considering that driver as negligent when his car was almost wholly in the wrong lane at a point approximately 18 feet from the point of impact, and where at the impact, it was still largely in that lane (its right rear wheel being 2 feet west of the center line). There can be no presumption of non-negligence on Williams’ part in the light of this evidence. As we view the case, in no event was plaintiff entitled to recover on this evidence. We have considered, but have attached no significance to the testimony of Mr. Huston about muddy tracks. As the trial court obviously concluded, these were in no possible way connected up with Miss Cav-ender’s car or with the collision; to have taken this testimony as any indication of a loss of control by Miss Cavender would have been pure speculation.

In this view, none of appellants’ other points need be considered. The judgment is reversed.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Geneva Asbridge SIGMAN, Appellant (Plaintiff), v. Carrie KOPP (Huff), and R. B. Manley, Executor of the Estate of Emil Charles Schramm, deceased, Respondents (Defendants).
    No. 49902.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.

      Thomas B. Maloney, William L. Mason, Jr., St. Louis, for appellant.
    E. L. McClintock, Jr., Flat River, for respondent R. B. Manley, Executor of the Estate of Emil Charles Schramm, Deceased.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent Carrie Kopp (Huff).
   WELBORN, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Geneva Asbridge Sigman, as a result of an automobile collision involving the vehicle in which' Mrs. Sigman was a passenger and driven by defendant Carrie Kopp (Huff), a second vehicle driven by defendant R. B. Manley’s decedent, Emil Charles Schramm, and a third vehicle driven by Leroy Alvin Blain. Blain was a party defendant in the action, but it was dismissed as to him for lack of service of process. A jury in the St. Francois County Circuit Court returned a verdict for defendants. After an unsuccessful motion for new trial, plaintiff appealed. In view of her prayer for damages in the amount of $75,000, we have jurisdiction of the appeal.

The incident out of which this litigation arose occurred at around- 8:00 A.M., September 11, 1959, on U. S. Route 67 in St. Francois County, some 2 miles north of Farmington, near the entrance to Parkview Cemetery. At this point, Highway 67 was an 18-foot, 2-lane concrete highway, running generally north and south. There was a 9-foot shoulder on the west side. On the east side of the highway, the entrance to the cemetery provided a shoulder of some 30 feet in width. In the southbound lane of the highway there was a yellow line indicating a no-passing zone because of a fairly steep hill cresting from 200 to 250 feet to the south of the beginning of the line and a curve.

Just before the collision, the Blain vehicle was following the Kopp car as both proceeded south on Route 67. ' Blain pulled into the northbound lane and started to pass the Kopp car. As he did so, the vehicle driven by Mr. Schramm came into view, proceeding northwardly in the northbound lane, just at the crest of the hill. The Blain car overtook the Kopp car and turned back into the southbound lane. In doing so, it struck the Kopp car. Mrs. Kopp was unable to control the vehicle and it ran off the highway into a tree on the east side of the highway, with injury resulting to plaintiff.

Schramm endeavored to steer his vehicle onto the shoulder on the east side of the highway. However, the Blain car struck the left rear fin of the Schramm car before it got completely off the highway. Whether the Blain car struck the Kopp or Schramm vehicle first was a question on which testimony differed.

The highway patrolman who investigated the accident found damage to the Blain car on the left front and the right side near the front door. The Kopp car was damaged on the left side at “approximately the middle of the car.” The damage to the Schramm vehicle was on the back part of the left rear fender.

Debris was found in two places on the highway. One pile was on the east edge of the highway and the other in the center, mostly on the south bound lane. The second pile of debris was a few feet south of the first. The debris was approximately 150 feet from the north end of the no-passing zone in the southbound lane and some 100 feet from the crest of the hill.

Plaintiff’s claim was submitted to the jury on instructions charging negligence on the part of Kopp and Schramm in failing to maintain a careful and vigilant lookout and, as.a result, failing to see the other vehicles involved in time to avoid the collision by slackening speed and turning. Defendants submitted in separate instructions the defense of the negligence of Blain as the sole cause of the accident. As stated above, the jury returned a verdict for defendants.

On this appeal, two points are raised as error on the part of the trial court. The first relates to testimony of Trooper Darwin James concerning a statement by the deceased Schramm at the scene of the collision. The Trooper, a witness for plaintiff, testified that he investigated the accident. On direct examination, he testified, without objection, that he had interrogated Mrs. Kopp after the accident at a hospital in Bonne Terre and that she stated: “It all happened so fast I don’t know just what did happen.” He also testified that he talked to Blain who stated: “I was coining down the hill following two cars. The back one put on her brakes. I pulled out in order to put on my brakes and this other car came over the hill and I didn’t have time to get back in.”

On cross-examination by counsel for defendant Kopp, the Trooper was asked whether he talked to Mr. Schramm at the scene of the collision. Upon his answering affirmatively, the Trooper was asked: “And did you ask him about what took place and what happened with respect to this accident and what caused it ? ” Counsel for plaintiff objected on the grounds that, by reason of the death of Schramm, he could not be cross-examined as to any statement he had made. Counsel for defendant Manley objected on the basis of the Dead Man’s Statute. Counsel for Kopp contended that the statement was admissible as an admission against interest. The court overruled the objections and permitted the Trooper to testify. The testimony was that Schramm said: “I was going north and I saw this car pull out toward me. I tried to get off and almost made it but he hit me.”

In her motion for new trial, plaintiff contended that the admission of this testimony was error because “said Schramm was deceased and could not be cross-examined with respect to said statement and the Plaintiff was prohibited from testifying as to the negligence of said deceased.”

On this appeal, plaintiff contends that admission of the testimony was erroneous because “(A) The question called for hearsay; (B) The question came within no exception to the hearsay rule, since no foundation was laid to show that an answer given could have been a verbal act or a part of the res gestae; (C) The question clearly admitted of an answer which would be a self-serving declaration on the part of Schramm; (D) The question violated the rule requiring an opportunity for cross-examination; (E) The statement given in answer to the question was entirely self-serving on the part of Schramm.”

Respondents reply that no objection was made at the trial that the question called for hearsay testimony and, therefore, such grounds cannot be urged on appeal. They further contend that the evidence was of the same character of evidence as that adduced by the plaintiff herself and that the plaintiff was not prejudiced by the statement because it was consistent with the testimony of other witnesses on the question and further that the statement in any event was admissible as a statement against interest.

An objection to the admissibility of a statement of a person on the grounds that the party against whom it is offered would be deprived of the right of cross-examination is nothing more than objection that the proposed testimony is hearsay. Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666(1). Therefore, we do not consider that the objection in the trial court failed to present the objection that the testimony was hearsay.

We are of the opinion that, by reason of the doctrine of curative admissibility, there was no error in the admission of this evidence. Plaintiff on her direct examination of the Trooper adduced the hearsay statements of Mrs. Kopp and Blain. Plaintiff is in no position to complain that counsel for Kopp completed the picture by drawing from the witness the statement of Schramm, the driver of the third vehicle. It was evidence of the same caliber as that originally brought into the case by plaintiff. Although Mrs. Kopp was present and could be cross-examined regarding her statement, it was not necessary in view of its innocuous content. Blain was unavailable for cross-examination as was Schramm. Having opened the door, appellant is in no position to complain that one of the respondents followed her lead. Biener v. St. Louis Public Service Co., Mo.App., 160 S.W.2d 780, 785-786(5-10); Corley v. Andrews, Mo.App., 349 S.W.2d 395, 403(8). See also Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, recognizing the doctrine although not applying it under the circumstances of that case.

Plaintiff’s second assignment of error relates to the giving of Instruction No. 5 offered by defendant Kopp. That instruction read as follows:

“The Court instructs the Jury that if you believe and find from the evidence in this case that on the occasion in question the defendant was operating her automobile southwardly along Highway 67 in St. Francois County, Missouri, ahead of an automobile operated by Alice Trokey, and that the defendant Emil Schramm was operating his automobile northwardly along the said highway, and that LeRoy Blain was operating his automobile southwardly along said highway to the rear of Mrs. Kopp’s automobile and that he undertook to pass her automobile at a time when the automobile of Mr. Schramm was approaching so closely as to constitute an immediate hazard of collision, and if you find that while the said LeRoy Blain was on his left hand side of the highway he turned and came into collision with Mrs. Kopp’s automobile when’ (sic)'-then left' the roád ’and struck an obstruction, and if you find that Mrs. Kopp’s automobile was caused to go out of control by the collision with the Blain automobile and that Mrs. Kopp was not thereafter by the exercise of the highest degree - of care able to control her automobile and avoid its collision with the said • obstruction, and that in so operating his automobile, LeRoy Alvin Blain was' negligent and that such negligence, if any, was' the sole direct cause of Mrs. Kopp’s automobile leaving the road and plaintiff’s injuries, and that the same were not due to any negligence of Mrs. Kopp as submitted to you in other instructions, that the plaintiff cannot récover against Mrs. Kopp, and you must find the issues in favor of Mrs. Kopp and against the plaintiff.”

Plaintiff contends that the obviously inadvertent use of the word “that” instead of “then” in connection with the phrase “that the plaintiff cannot recover against Mrs. Kopp” made the instruction a “positive direction to find for defendant Kopp ‘irregardless.’ ” In reaching this conclusion, plaintiff completely ignores all of the language which appears in the instruction following “The Court instructs the Jury” and would construe the instruction as if it read “The Court instructs the Jury that plaintiff cannot recover against Mrs. Kopp and you must find the issues in favor of Mrs. Kopp and against plaintiff.” We are. of the opinion that jurors of average . intelligence would recognize that,, .under tjjis instruction, they should reach such conclusion only if they found the facts to be as hypothesized. Certainly it would be clear to jurors that the matters which they were required to find .in the .instruction were not meaningless. Obviously, for example, jurors would understand that, before they could find for Mrs. Kopp under this instruction, they must have determined that she was- not negligeht as submitted in other-instructions. Likewise, we think it clear that the jurors would have understood that they were required under this instruction to find that Blain’s negligence was the sole cause of the injuries to the appellant. The necessity of similar findings with respect to the other matters set out would have been equally clear.

We do not find in this instruction the tendency to confusion which existed in the instruction found erroneous in Braun v. Hoffmeister, Mo.Sup., 366 S.W.2d 406, cited by the appellant. There, as pointed out by appellant, the misplacing of a comma produced an instruction concerning which the court said (1. c. 408 of 366 S.W.2d): “The true meaning of the instruction, as phrased, is calculated (without design, of' course) to be confusing even to a person with legal experience; certainly, it could be misleading to a lay jury.” In our opinion, both lawyers and laymen would readily understand the instruction here involved and its being given is not grounds for error. Chailland v. Smiley, Mo.Sup., 363 S.W.2d 619, 625-626(6); Hines v. Western Union Telegraph Co., 358 Mo., 782, 217 S.W.2d 482, 487(6); Schmidt v. Windish, Mo.Sup., 304 S.W.2d 891, 895.-

We add that, in setting out Instruction No. 5 herein, we do not indicate our approval of the instruction. We consider only the objection here raised.

Finding no error, the judgment of the trial court is affirmed.

COIL and HOUSER, CC., concur.

PER .CURIAM.

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

„ All of the-Judges concur.