author: DENTON, Chief Justice.

text:
    Mai Conner CARRICK v. L. W. HEDRICK et al.
    No. 7127.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1961.

      James P. Donovan, Dallas, for appellant.
    . Malone, Seay & Gwinn, Dallas, for ap-pellees.
   DENTON, Chief Justice.

This is a suit seeking to recover for personal injuries alleged to have been sustained by appellant as a result of an automobile and truck collision at an intersection in the City of Dallas, Appellees, L. W. Hedrick and James W. Hedrick, were owners of the truck which was being driven by appellee Troy Dan Ray. All three were made party defendants. The case was tried before a jury. The jury exonerated the defendant driver of all acts of negligence, and found appellant contributorially negligent in the operation of her automobile in several respects, including running a red light. The jury further found that the appellant sustained no personal injury as a result of the collision. The trial court thereupon entered judgment for the defendants below.

Appellees.contend by counter points that appellant’s points of error are too general and indefinite, and that allegations in appellant’s amended motion for new trial are not sufficiently definite to enable this court to consider the matters complained of. In view of the liberal construction to be given in interpreting our Rules of Civil Procedure, we conclude the points of error, except the one hereinafter mentioned, are sufficiently definite for this court to consider them. Under two points, appellant referred to certain paragraphs of the motion for new trial when in fact the named paragraph should have referred to the amended motion for a new trial. We do not think such an error or mistake is fatal.

Appellant first contends the trial court erred in permitting the investigating police officer to testify to certain conversations he had with witnesses at the scene. Further complaint is made of the officer testifying to appellant’s plea of guilty to a traffic violation which grew out of the collision in question. These points will be considered in the order named. Over appellant’s objection, the officer was permitted to testify that three witnesses to the collision told him the appellant ran a red traffic light. These conversations took place at the scene within ten minutes of the collision. Such statements were admissible as res gestae. The statements were made by witnesses to the collision within a few minutes of the collision. As they were made on the scene and in such close proximity to the actual occurrence, we are of the opinion they were spontaneous utterances which arose from the transaction itself. Knapik v. Edison Bros., Inc. (Tex.Civ. App.), 313 S.W.2d 335 (error refused). The fact the statements complained of were made by bystanders is of no significance if their statements are in fact res gestae. Firemen’s Ins. Co. v. Havron (Tex.Civ. App.), 277 S.W. 742 (no writ history); Dallas Ry. & Terminal Co. v. Burns (Tex. Civ.App.), 60 S.W.2d 801 (no writ history) ; Tyreco Refining Co. v. Cook (Tex.Civ. App.), 1.10 S.W.2d 219 (Dismissed). It should be noted that all three of these witnesses testified at the trial. One of these witnesses denied making the statement to the officer, and further testified that appellant entered the intersection on a green light. The other two witnesses affirmed their statements to the officer, and gave identical testimony at the trial. We think this would have cured any error committed in admitting their statements made at the scene.

Appellant next complains of the admission into evidence of the telephone Conversation of the same investigating police officer with a "stranger to the action.” In this conversation the officer expressed the opinion the appellant was at fault in connection with the collision. This conversation was in fact with the son of appellant, and was initiated by the policeman in behalf of the appellant. The statement to the effect that appellant was at fault was made in response to a direct question by the son. Appellant was near by in the place of business when the officer placed the call, and she also talked to the son after the policeman had concluded his conversation. Under these facts we cannot say the policeman’s conversation with appellant’s own son was inadmissible as hearsay.

This same police officer testified that appellant later appeared in person in the corporation court and entered a plea of guilty to a charge of negligent collision and paid a $25 fine. Appellant timely objected to this testimony together with the introduction of a certified copy of the corporation court’s docket and minutes of the appellant’s traffic case. The officer was present in the courtroom when appellant entered her plea of guilty. It is well settled that under such circumstances this evidence of her plea of guilty was admissible as an admission. Fisher v. Leach (Tex.Civ.App.), 221 S.W.2d 384 (refused n. r. e.) ; Mooneyhan v. Benedict (Tex.Civ.App.), 284 S.W. 2d 741 (refused n. r. e.); Johnson v. Woods (Tex.Civ.App.), 315 S.W.2d 75 (refused n. r. e.); Canales v. Bank of California (Tex.Civ.App.), 316 S.W.2d 314 (refused n. r. e.).

The certified copy of the corporation judge’s docket and minutes of appellant’s conviction of the traffic violation is a public record which is required to be maintained under authority of Sec. 152, Art. 6701d, Vernon’s Ann.Civ.St., and is admissible into evidence as such public record under Art. 3731a, Vernon’s Ann.Civ.St. Tatum v. Texas Dept. of Public Safety (Tex.Civ.App.), 241 S.W.2d 167 (writ refused) ; Texas Dept. of Public Safety v. Jackson (Tex.Civ.App.), 272 S.W.2d 577 (no writ history) ; McPeak v. Texas Dept. of Public Safety (Tex.Civ.App.), 346 S.W.2d 138 (no writ history). In our opinion, Sec. 151, Art. 6701d, is not applicable under the circumstances before us as is contended by appellant.

Near the end of the testimony, appellant attempted to introduce certain portions of appellee Troy Dan Ray’s oral deposition for the stated purpose of impeaching his testimony. Appellant’s attorney proceeded to read into the record certain questions and answers given in Ray’s deposition. Appellees’ objection to each question and answer was sustained on the ground they were repetitious. Ray had been intensively examined and cross examined prior to this time, but no effort to recall Ray to the witness stand for the purpose of confronting him with the answers made in his oral deposition was made. We therefore conclude a proper predicate had not been laid for the declared purpose of impeaching his testimony. It is well settled that in attempting to impeach a witness by showing he made prior contradictory statements, a foundation must first be laid by questioning the witness concerning the statements, and he must be given an opportunity to make such explanations concerning the alleged contradictory character of such statements in his testimony as he might desire. International & G. N. R. Co. v. Boykin, 99 Tex. 259, 89 S.W. 639; Thompson v. Denham (Tex.Civ.App.), 250 S.W.2d 460 (refused n. r. e.) ; Ray v. Gage (Tex.Civ.App.), 269 S.W.2d 411 (refused n. r. e.).

Appellant’s fifth point of error reads as follows: “The trial court erred in refusing to set aside the verdict of the jury as to all answers to special issues other than those made to issues numbered 11, 12 and 27.” This point of error is too general and indefinite and presents nothing for our review. Minchen v. First Nat. Bank of Alpine (Tex.Civ.App.), 263 S.W.2d 601 (refused n. r. e.); Blalack v. Johnson (Tex.Civ.App.), 293 S.W.2d 811 (no writ history) . The statement under the point quoted above was also insufficient, and there being no argument presented under this point, the fifth point of error will not be considered.

The judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. Roy L. CADE, Appellee.
    No. 3914.
    Court of Civil Appeals of Texas. Waco.
    Nov. 16, 1961.
    Rehearing Denied Dec. 7, 1961.
    Keith, Mehaffy, McNicholas & Weber. Beaumont, for appellant.
    Barber•& Seale, Jasper, for appellee.
   WILSON, Justice.

Excessiveness- of a $79,000 verdict is the chief complaint in this FELA case. Liability findings are not challenged.

Plaintiff’s age was 45 at the time of the alleged injury. Fie had been continuously employed by the railroad as a track laborer for sixteen years. His previous employment record shows he had lost no appreciable work time. Although he had completed only the third grade in school, his wages had increased to $2 per hour. Previously his earnings were about $4,000 per year. Hospitalization directed by the railroad company was followed by an attempt to work for ten days, after which the company physicians returned him to the hospital for further examination, traction, a myleogram and lumbar laminectomy. Those performing this surgery who treated plaintiff for the company did not testify. After additional time in the hospital, plaintiff twice resumed efforts to work, but was again sent to the hospital for 28 days by the company’s surgeon. He was then referred by his counsel to an orthopedic surgeon, whose qualifications were conceded.

The orthopedic surgeon testified that, at the time of trial additional surgery for spinal fusion was necessary, and plaintiff could not perform manual labor; that his examination showed narrowed interspace, and immobilization was needed to prevent collapse; that nerve root pressure caused pain and muscle spasm. In his opinion an additional herniated nucleus pulposus or disc involvement existed. On cross-examination he testified an average of eighty-five per cent of fusion operations are successful, and if such surgery on plaintiff resulted favorably, he would be free from pain; that X-rays indicated the previous laminectomy was done between two separate interspaces. If the new operation was successful, he would not say plaintiff would be to totally and permanently disabled; and “we have returned a lot of them to their former jobs.”

Although we regard the award as high'and its characterization by appellant as understandable, we have carefully examined the record and we cannot say it is excessive.

Admission of plaintiff’s testimony that his inability to earn money had caused him concern and worry is urged as ground for reversal. The company says it was also error to include the element of “mental suffering” in the damage issue, since this testimony was the only evidence thereof. The latter contention is not considered meritorious. The law infers mental suffering results from severe injuries. Texas & Pacific Ry. Co. v. Curry, 64 Tex. 85, 88.

Inadmissibility of the evidence complained of is supported by Pittman v. Bal-adez, 158 Tex. 372, 312 S.W.2d‘210, 213; Texas Mexican Ry. Co. v. Douglas, 69 Tex. 694, 7 S.W. 77, 79; Planters’ Oil Co. v. Mansell, Tex.Civ.App., 43 S.W. 913, no rehearing; Jarbet Co. v. Hengst, Tex.Civ. App., 260 S.W.2d 88, 93, no writ. That reversal is required does not necessarily follow. In each of the foregoing cases other errors weighed to produce remand. In Pittman v. Baladez, the point was one of others held to present error “before considering the point upon which the reversal is predicated” [158 Tex. 372, 312 S.W.2d 212], that being a different “question which requires a reversal”. In our opinion this case should not be reversed solely because plaintiff testified his inability to make money had caused concern and worry. See Texas & P. Ry. Co. v. Crockett, Tex.Civ.App., 298 S.W. 654, writ ref.; M. K. T. v. Miller, 25 Tex.Civ.App. 460, 61 S.W. 978, 979, writ ref.; Fort Worth Belt Ry. Co. v. Turney, Tex.Civ.App., 157 S.W. 274, no writ: Citizens Ry. Co. v. Branham, Tex.Civ.App., 137 S.W. 403, 404, writ ref.; Decatur Cotton Seed Oil Co. v. Belew, Tex.Civ.App., 178 S.W. 607, 613, writ ref.; Texas Utilities Co. v. Dear, Tex.Civ.App., 64 S.W.2d 807, 814, writ dis.

Affirmed.


text:
    SOUTHERN IRON & METAL COMPANY and Commercial Metals Company, Appellants, v. Joseph YAFFE, D/B/A Yaffe Iron and Metal Company, Appellee.
    No. 3922.
    Court of Civil Appeals of Texas. Waco.
    Nov. 16, 1961.
    Rehearing Denied Dec. 7, 1961.

      King, Sharfstein & Rienstra, Beaumont, for appellants.
    Tatum & Ball, Beaumont, for appellee.
   WILSON, Justice.

Appellant purchased scrap copper from appellee under’a written contract prepared by appellant which provided that shipments “are subject to weight and grading ascertained at receiving mill, yard or plant.” Appellant typed into the contract form the words, “Consumers’ weights and grades to govern final settlement.” . .

Under the contract appellee shipped to appellant 30,000 pounds of scrap copper of grade or classification which made the total sales price thereof $13,115.16. These facts are found by the trial court and appellant says “the finding as to actual weight and classifications are not attacked on this appeal.” The court further found that when appellant received the copper it “downgraded” it and weighed it incorrectly.

Under these findings and appellant’s assent thereto, it becomes undisputed that the judgment rendered is based on the difference between the quantity and grade of copper delivered to appellant and what it claimed to have received. The effect of appellant’s contention is that appellee is concluded by the grades and weights “ascertained” by appellant, under the contract, whether correct or not.

The court concluded as a matter of law that under the quoted provisions of the contract appellant “was entitled to make the final determination as to the grades and weights of the copper” received from appel-lee, but was bound, in making such determination, to act in good faith. The court found the determination was not so made, but was made arbitrarily, fraudulently and in bad faith. Appellant’s attack on the judgment is directed exclusively to these latter findings, the points asserting there is no evidence, or insufficient evidence to support them.

We consider it unnecessary to pass upon these points, since they are based upon the premise that, absent bad faith, appellant was the final and conclusive arbiter of classification and weights under the contract, as the court concluded. That conclusion we regard as incorrect. The court made no express finding as to the meaning of the term “consumers’ ” which appellant employed in the provision that consumers’ weights and grades would govern final settlement. Although appellant’s evidence is that it means “purchaser”, appellee’s evidence is that in the scrap metal business the word means “the ultimate user of the scrap metal, and not one who simply buys scrap metal for resale”, as did appellant.

In the contract appellant prepared it referred to and identified itself repeatedly and consistently by the word “buyer”. When it employed the typed-in term “consumers’ ” it significantly used the plural possessive form. A consumer is one who “uses economic goods and so diminishes or destroys their utilities”, and one who buys goods for re-sale is not a consumer, in the ordinary meaning of the term. 9 Words and Phrases Consumer, p. 12; and see Ex parte Mehlman, 127 Tex.Cr.R. 257, 75 S.W.2d 689, 690. Appellant’s position, when its shortage in weight and grade were protested was that it did “not consider it our responsibility to deal with” appellee “on any complaints regarding weight or grading of material”, under the terms of the contract, as settlement was required to be governed by grades and weights determined by it. The fact that the contract provided shipments were “subject to” weight and grading “ascertained” at appellant’s receiving yard becomes immaterial once the true Weight and grade are determined without question, as they are under this record. Since “consumers’ ” did not refer to appellant, in our opinion the contract did not entitle it to make the “final determination” as to grade and weight so as to make necessary the findings complained of, and the judgment is fully supported by other findings not challenged.

If we are incorrect in the foregoing respects, in our opinion the evidence is adequate to support the findings complained of. Affirmed.


author: ARCHER, Chief Justice.

text:
    Chester R. MORRIS, Appellant, v. Lawrence HARGROVE, Appellee.
    No. 10891.
    Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1961.
    Rehearing Denied Nov. 29, 1961.

      Chester R. Morris, San Antonio, for appellant.
    Will Wilson, Atty. Gen., Lawrence Har-grove and Pat Bailey, Asst. Attys. Gen., for appellee.
   ARCHER, Chief Justice.

This is a suit for damages for malicious ■prosecution, a prior petition sought damages for libel and was abandoned.

The plaintiff declared he had been damaged to the extent of $1,200 by a statement made by defendant in a prior suit styled ■Chester R. Morris v. Sam Hoerster and John T. Middleton, Tex.Civ.App., 348 S.W. .2d 642, in which plaintiff sought the production and inspection of certain medical records concerning examinations of plaintiff while he was confined at the Austin State Hospital in 1956, having been admitted February 2, 1956 and dismissed March 15, 1956.

The complained of paragraph was in an .answer filed by the defendant, as an Assistant Attorney General, on behalf of Sam A. Hoerster, Superintendent of the Austin .State Hospital, and John F. Middleton, •Chief of Social Service at the hospital, which reads:

“That the disclosure of the above-mentioned information to the Plaintiff will in reasonable probability seriously and adversely affect the Plaintiff’s mental and emotional health. In this connection Defendants would show that it is the general medical practice at Austin State Hospital not to disclose information of the sort mentioned above to patients or former patients whose diagnosis and course of treatment are as in the Plaintiff’s cause, and that this practice, as with all other therapeutic measures, is motivated by a desire to foster the welfare and restoration to health of the patient.”

A motion for summary judgment was made by appellee on the grounds that there was no genuine issue as to any material fact; that if the allegations of fact made by plaintiff in his original petition be taken as true, plaintiff would have made no showing of any legal wrong or injury committed against him by defendant and .is without cause of action, for the reason that:

(1) That the civil suit upon which recovery is sought was instituted by the plaintiff and terminated in favor of the defendants therein, and alternatively (2) Plaintiff’s alleged cause of action is unknown to the laws of this State.

This motion was granted. The Trial Court denied appellant’s motion for summary judgment and judgment was entered that plaintiff take nothing.

In the instant case appellant declared on damages for libel, which was adjudicated in favor of appellee. Appellant then sought to recover on the basis of malicious prosecution.

Appellee, as a ground for a second motion for summary judgment, asserted that there were certain elements essential to a cause of action for malicious prosecution, i. e. (1) a legal proceeding instituted against plaintiff by the defendant and a termination of such proceeding in favor of plaintiff, and (2) that such were not present in the undisputed facts of this case and plaintiff was not entitled to recovery for malicious prosecution.

Malicious prosecution is the instituting of a criminal prosecution or a civil suit filed maliciously and without probable cause.

28 Tex.Jur., Malicious Prosecution, Secs. 2, 4 and 7.

The suit which appellant here claims to have been maliciously prosecuted against him was instituted by appellant and had not terminated in plaintiff’s favor but was on appeal when the present suit was brought.

Appellant filed his motion for summary-judgment, seeking a judgment in his favor. There is no dispute as to the facts and the appellee was entitled to judgment as a matter of law.

Rule 166-a, Texas Rules of Civil Proce7 dure; Johnson v. State Board of Morticians, Tex.Civ.App., 288 S.W.2d 214, no writ history.

The Court did not err in denying leave to appellant to amend his petition after summary judgment had been rendered against him on hjs... claim for libel. The amendment was not to ask any damages for libel or slander but for damages for malicious prosecution. The amendment came too late as judgment had been rendered against appellant on his claim for libel and appellant could not have alleged a recoverable' cause of action and even if error,, such was harmless since a full'hearing was had on the pleadings on March 1, 1961 and summary judgment rendered thereon.

Warren v. Ward Oil Corp., Tex.Civ.App., 87 S.W.2d 501, error dism.; 8 Tex.Jur.Sup. 137.

Appellant filed special exceptions to appellee’s second motion for summary judgment on the grounds that the allegations were irrelevant, because the rule that a proceeding upon which a cause of action for malicious prosecution is based be terminated favorable to plaintiff is not without exception; that the cause is not based on the proceedings in cause No. 118,818 as a whole, but based on the statement herein-above set out, and the final outcome in said cause No. 118,818 has no bearing on plaintiff’s claim. These exceptions were overruled and properly so.

There was no error in denying appellant’s motion for summary judgment, the Court having concluded that appellant was not entitled to a judgment as a matter of law.

Appellant sought to recover damages for an allegedly libelous written statement admittedly made by appellee as part of a motion filed in a pending suit, appellee being an attorney for the defendants in such suit. Since there was no issue as to the making of the statement, such statement could not form the basis for a libel action. The statement was privileged and no remedy exists in a civil action.

Reagan v. Guardian Life Insurance Co., 140 Tex. 105, 166 S.W.2d 909.

•.Finding no reversible error the judgment, of the Trial Court is affirmed.

Affirmed.

      . The case was reversed and remanded by this Court. Morris v. Hoerster, Tex.Civ.App., 348 S.W.2d 642, error ref., N.R.E.


author: McDONALD, Chief Justice.

text:
    Albert E. BOWIE et al., Appellants, v. H. I. HARRIS, Appellee.
    No. 3924.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1961.
    Rehearing Denied Dec. 7, 1961.

      Brown, Bates, Brock & Morgan, Houston, for appellants.
    Joe H. Tonahill, Jasper, for appellee.
   McDONALD, Chief Justice.

This is an automobile collision case in which plaintiffs alleged that defendant attempted to pass plaintiffs in a no passing zone and negligently crashed into them, causing damage. Trial was to a jury which acquitted defendant of negligence, and found plaintiffs guilty of contributory negligence proximately causing the collision. The Trial Court entered judgment on the verdict that plaintiffs take nothing.

Plaintiffs appeal, contending that the Trial Court erred in admitting: 1) evidence to the jury that plaintiff had been given a misdemeanor ticket for a traffic violation growing out of the collision; 2) evidence of conviction and payment of fine for a misdemeanor.

Plaintiffs sued defendant for damages for negligently running his car into them. On the trial, the Trial Court permitted the defendant to prove the issuance of a traffic ticket to plaintiff Bowie, by the State Highway Patrol for “making an improper turn”; permitted introduction of the Justice of the Peace docket sheet showing plaintiff Bowie was convicted of “pass in a no passing zone”, and fined $16.50; permitted defendant’s counsel to interrogate plaintiff Bowie about having received a ticket; and permitted defendant’s counsel to interrogate the Justice of the Peace about plaintiff Bowie’s conviction for the traffic violation. Plaintiff sought to exclude the foregoing by motion in limine to instruct defendant’s counsel not to mention same; by objection to same at the time of its introduction; and by motion for mistrial; all of which were overruled by the Trial Court.

The real issue here involved is whether plaintiff Bowie ' in fact plead guilty in Justice of the Peace, Court to a traffic viol lation, or whether he was 'found guilty, absent a plea of guiity. If he plead guilty, his conviction based thereon is admissible under circumstances, as here, where the same act is involved in both criminal and civil proceedings. If, on the other hand, he 'did not plead guilty, but was found guilty, under circumstances other than upon a plea of guilty, such conviction is not admissible. Mooneyhan v. Benedict, Tex.Civ.App. (n. r. e.), 284 S.W.2d 741; 17 Tex.Jur. 575; Fisher v. Leach, Tex.Civ.App. (n. r. e.), 221 S.W.2d 384; Sherwood v. Murray, Tex.Civ.App. (n. w. h.), 233 S.W.2d 879; See also: Quesada v. Graham Ice Cream Co., Tex.Civ.App. (n. w. h.), 207 S.W.2d 120; Missouri, K. & T. Ry. Co. of Texas v. Creason, 101 Tex. 335, 107 S.W. 527.

Article 518, Code of Criminal Procedure, Vernon’s Ann.C.C.P., provides that a plea of guilty in a misdemeanor case may be made either by the defendant, or his counsel in open court. Here, the plaintiff Bowie (who was defendant in the Justice Court misdemeanor case) was never in Justice Court and entered no plea of any sort personally. The record, viewed most favorably to the defendant (appellee herein) reflects that attorney Barber, who had been retained as associate counsel by plaintiff’s chief counsel, contacted the Justice of the Peace about the ticket. Attorney Barber told the Justice of the Peace that he would not plead plaintiff guilty to the misdemeanor. The Justice of the Peace testified that attorney Barber stated “that plaintiff was guilty but that he could not enter a plea of guilty for him.” The Justice of the Peace stated to attorney Barber that he would “find him guilty.” He assessed a fine of $16.50 which attorney Barber paid by check on his law firm. The Justice' of Peace docket sheet fails to reflect anything except that a complaint was made and $16.50 was paid.

Under the foregoing factual situation the Trial Court should have excluded all reference to and evidence of, the ticket, and conviction of plaintiff for misdemeanor in Justice Court. We think such error harmful and prejudicial, and that same amounted to such a denial of plaintiff’s rights, as reasonably calculated to, and probably did, cause the rendition of an improper judgment in the case; and that plaintiffs are entitled to have their case tried free of such erroneous and prejudicial evidence.

Plaintiffs’ points are sustained and the cause is reversed and remanded, at cost of defendant (appellee).

Reversed and remanded.


text:
    M. C. O’NEAL, Appellant, v. J. D. BALL et al., Trustees, Appellees.
    No. 3917.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1961.
    Rehearing Denied Nov. 30, 1961.

      Howell Cobb, Orgain, Bell & Tucker, Beaumont, for appellant.
    W. O. Bowers, Jr., Beaumont, for ap-pellees.
   WILSON, Justice.

Church trustees sued appellant in trespass to try title and to cancel a mineral reservation in his deed to them. Judgment was rendered after a non-jury trial can-celling the reservation, removing the cloud alleged to have been cast thereby on the trustees’ title, and vesting in them the title to oil, gas and minerals. No findings or conclusions were requested or filed.

The fact issue presented is whether appellant as grantor had the reservation inserted in the deed after he executed it. Appellant says there is no evidence it was subsequently added, as the trustees alleged. Appellant’s testimony was that he examined the deed form on April 28, 1953 and refused to sign it because it provided for no reservation of minerals, and that he did not acknowledge or execute it until May 1, when it contained the reservation. The notary’s certificate recites he acknowledged execution of the deed on April 20. Since his testimony concedes the deed did not contain the provision on April 20 when the notarial certificate shows he had executed and acknowledged the instrument, the point is overruled. Reserve Petroleum Co. v. Hodge, 147 Tex. 115, 213 S.W.2d 456, 459, 7 A.L.R.2d 288; Southwest Bit. Co. v. Martinez, 135 Tex. 347, 143 S.W.2d 116, 118; Griffin v. Stewart, Tex.Civ.App., 348 S.W.2d 800, 803; Gomez v. Riddle, Tex. Civ.App., 334 S.W.2d 197, 199, no writ; Thrasher v. Cothren, Tex.Civ.App., 104 S.W.2d 523, 524, no writ; 1 Tex.Jur.2d, pps. 432, 445, 447. There is other evidence to sustain the finding implied. Appellant’s-complaint as to other evidence admitted in-this trial before the court becomes immaterial.

Limitation under the four year statute, Art. 5529, Vernon’s Ann.Civ.Stat., is relied' on to defeat the trustees’ action. The suit was filed in 1960. The evidence shows-appellees first had actual knowledge of the reservation in 1959. Appellant’s position-is based on Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 321, 137 A.L.R. 263,. where one claims fraud concerning title and “when the records relating to such title are open to him he must exercise reasonable diligence to discover such defect ; and if by the exercise of such diligence he could have discovered such defect and would have known of his right, he is held to have known it, and limitation will run against his claim from the time he could have made such discovery by the exercise of ordinary diligence.”

The burden was on the trustees under that rule to establish facts which excused their failure to act within the statutory period. Sherman v. Sipper, above; Mathis v. Stockdick, Tex.Civ.App., 189 S.W.2d 106, 108, writ ref.; Clopton v. Cecil, Tex.Civ.App., 234 S.W.2d 251, 253, writ ref. n. r. e.; Carminati v. Fenoglio, Tex.Civ.App., 267 S.W.2d 449, 452. To. discharge this burden they alleged and proved that at no time during negotiations for purchase of the property, nor at the time of agreement on terms of sale, was reservation of minerals mentioned; that neither the deed of trust or vendor’s lien note to appellant signed by them, nor the release of lien to them, referred to minerals ; that appellant induced the scrivener to insert the reservation in the deed without notice to them; that they did not read the deed, but relied on appellant to execute a deed conveying the same property agreed upon, as described in the note and deed of trust, which they did read. They alleged and introduced evidence sustaining the finding the reservation was inserted without notice to them, after execution of the deed by grantor.

Appellant admitted he went with one of the trustees, Resch, to an abstract company which had previously done work for both parties; that he “gave an order to someone” in the office, and “told him the terms of sale”; and that he did not give the scrivener any instruction at that time, while the church trustee was present, to insert a mineral reservation in the deed. He conceded that when he later returned to the office the deed did not contain the provision and when he told the drafting attorney he wouldn’t sign the deed without it, the attorney replied positively, “you will have to see Mr. Resch about that.” Appellant answered, “I know I will.” He did not do so; he did not mention to any trustee that minerals were reserved in the deed until after this suit was filed. The scrivener was not living at time of trial. Appellant asserted he had previously told a member of the church, not a trustee, that he could not sign the deed without reserving minerals. This member denied having any conversation with appellant.

• No trustee ever saw or read the deed appellant signed. He left the instrument with the abstract company, and it was never physically delivered to the church or its trustees. The practice of the company, followed in this instance, was to “send the deed up to be recorded, and it comes back to us, and we file it in our files, and until the people call for it we keep it.” Six years after the deed was so dealt with, oil activity developed in the area and appellant’s conversations with the church treasurer implying the minerals had been reserved then caused the church to search for the deed. Examination by the trustees of a certified copy revealed existence of the provision, and this litigation ensued.

Appellant says the abstract company was agent for the church, and actual notice to the company of the contents of the deed was imputed. The only employee of the abstract company shown by the evidence to have such knowledge was the deceased attorney who prepared the deed. The abstract company was not authorized to draft a conveyance. Art. 320a-l, Vernon’s Ann.Tex.Civ.Stat.; Hexter Title & Abstract Co. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946, 951, 157 A.L.R. 268. The evidence supports the implied finding the attorney acted as appellant’s agent.

Appellees established facts, in our opinion, which the court properly determined excused failure of the church to act within the statutory period.

Laches is relied on to overturn the judgment. No precise date is fixed by the evidence on which the church actually discovered the grantor had attempted to retain minerals in the deed; the year 1959 is all that is specified. Suit was filed Jan. 15, 1960. The vendor’s lien notes have been discharged and the rights of no third party have intervened. The record justified the court in rejecting the defense. Other contentions do not require reversal. Affirmed.


author: HOLMAN, Commissioner.

text:
    James L. FITZPATRICK and Lena M. Fitzpatrick, Plaintiffs-Appellants, v. FEDERER REALTY COMPANY, a Corporation, William A. Federer, Lester A. Liebmann, Peter Bouckaert and Elmer A. Sander, Defendants-Respondents.
    No. 48279.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Motion for Rehearing or to Transfer to Court en Banc or to Modify Opinion Denied Dec. 11, 1961.

      J. L. London, St. Louis, Louis L. Hicks, Clayton, for appellants.
    James H. Zipf, Fortis M. Lawder, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for respondents, Federer Realty Co., William A. Federer, Lester A. Liebmann and Peter Bouckaert.
    Kappel & Neill, Harry G. Neill, Jr., St. Louis, for Elmer A. Sander.
   HOLMAN, Commissioner.

The plaintiffs were formerly the owners of a 100-acre tract of land located on Baxter Road in the western part of St. Louis County. There were valuable improvements thereon which will be hereinafter briefly described. On April 5, 1957, the property was sold to defendant Elmer A. Sander at a foreclosure sale held pursuant to a second deed of trust plaintiffs had executed. Defendant Lester A. Lieb-mann was an employee of Federer Realty Company and was the trustee in the deed of trust, and defendant Peter Bouckaert was the payee in the $24,000 note secured by said trust deed. William A. Federer and Federer Realty Company, defendants herein, had at one time been agents for plaintiffs in an effort to sell the property and William had acted as agent for Bouckaert in arranging the loan heretofore mentioned.

This suit was filed on April 20, 1957. In the original petition plaintiffs sought to set aside the foreclosure sale and to obtain a declaration that they had a right to redeem; they also prayed damages. They alleged that defendants fraudulently conspired and agreed not to bid against each other, and to divide the profit they intended to make by purchasing the property at a low price and reselling at a higher price. The court sustained defendants’ motions to dismiss plaintiffs’ petition on the ground that it failed to state a claim upon which relief could be granted. Upon appeal to this court we held that the petition stated a claim for relief and the judgment was reversed and cause remanded. Fitzpatrick v. Federer, Mo.Sup., 315 S.W.2d 826. Thereafter, plaintiffs filed a third amended petition in three counts. The first count was entitled “Action at Law” and sought damages for wrongful foreclosure. The second count entitled “Breach of Contract” prayed for damages based upon the failure of defendants to carry out ah oral agreement to withdraw the foreclosure sale and to sell the property privately. Count III entitled “Action in Equity” sought to cancel the foreclosure sale and also prayed damages.

Plaintiffs went to trial on the first count and the jury returned a verdict against all defendants for $35,000 actual damages and $9,000 punitive damages, a total of $44,000. Thereafter the court sustained the motion of defendant Bouckaert to set aside the judgment and enter judgment for said defendant in accordance with his motion for a directed verdict. As to the other defendants the court overruled the motions for judgment but sustained each of their motions for a new trial. The grounds assigned for sustention of said motions varied slightly but the following grounds upon which the motion of William A. Federer was sustained are typical:

“4. There was no substantial or competent evidence to sustain the verdict in favor of plaintiffs and against this defendant. * * *
“6. The court erred in giving and reading to the jury erroneous, illegal, misleading, improper and prejudicial instructions on behalf of plaintiffs, • and erred in giving each and every instruction at the request of plaintiffs. * * *
“11. The verdict is against the greater weight of the evidence. * *
“15. The verdict is against the law and the evidence and the evidence under the law.”

Plaintiffs have duly appealed from the aforesaid after-trial orders.

Upon this appeal plaintiffs contend that the court erred in entering judgment for defendant Bouckaert and in granting a new trial to the other defendants and assert that the judgment entered upon, the verdict of the jury should be reinstated. Defendant Bouckaert, of course, contends that the plaintiffs failed to make a submis-sible case against him and hence the court properly entered judgment in accordance with his motion for a directed verdict. While the other defendants alternatively contend that the court properly granted them a new trial they primarily assert that the plaintiffs failed to make a submissible case against them and therefore the trial court erred in not entering judgment in their favor in accordance with their motions for directed verdict. This court has heretofore held that where plaintiff appeals from an order granting defendant a new trial, the defendant (although not an appellant) “is entitled to urge upon this court that plaintiff made no submissible case, which point he duly preserved in the trial court by timely trial motions and in his after-trial motion to set aside the verdict and to enter judgment in his favor or in the alternative for a new trial.” Wilhelm v. Haemmerle, Mo.Sup., 262 S.W.2d 609, 611.

We will attempt to state plaintiffs’ theory of this case. As indicated, the original petition sought to set aside the foreclosure sale. In the first count of the petition upon which they went to trial they also complained of the foreclosure sale alleging that “prior to said sale all of the said defendants entered into an agreement and understanding with each other not to bid against each other at the said foreclosure sale,” and that thereafter- the defendant William A. Federer agreed that the foreclosure proceedings would .be withdrawn but that he, “pursuant to the said concerted action of the defendants, while representing to the plaintiffs that the foreclosure proceedings would be withdrawn, actually had no intention of doing so, and in violation of the said assurances and without notifying the plaintiffs of their intention to do so, proceeded wrongfully, unlawfully, wilfully, maliciously and wantonly to cry the property at foreclosure on the said 5th day of April, 1957, * * * and foreclosed the said property through the said defendant Lester A. Liebmann, trustee under the said second deed of trust, for the purpose of depriving plaintiffs of said property pursuant to an agreement and understanding among all of the defendants that the property was to be foreclosed at a low price and later sold for the benefit of the defendants at a much higher price * * *»

Plaintiffs also alleged that defendants Federer Realty Company, William A. Federer, and Lester A. Liebmann, after obtaining a listing agreement to sell the property in question, “actually made no effort to find a bona fide purchaser but on the contrary discouraged potential buyers from purchasing the same in furtherance of an understanding and scheme to deprive the plaintiffs of the property, knowing that the property was encumbered * * *.”

The case was submitted in Instruction No. 1. There were two submissions in the instruction. As a predicate to a verdict for plaintiffs the jury was required to find as to the first submission “that Federer Realty Company and William Federer and Lester A. Liebmann made no bona fide efforts to find a purchaser as set out in the said listing contract and discouraged potential buyers from purchasing the same, and if you find and believe that if the effoits to sell the said property had been bona fide, the property could have been sold in time to prevent the foreclosure mentioned in the evidence, and in time to have produced a sales price above the indebtedness of the plaintiffs on the said property, then your verdict will be in favor of the plaintiffs and against such, if any, of the three above-mentioned defendants as joined in above described acts.”

The findings required on the second submission are that “on or about the 9th day of March 1957, at the time of the auction sale mentioned in the evidence, any two or more of the defendants, Federer Realty Company, William Federer, Lester Lieb-mann, and Elmer A. Sander, entered into an agreement and understanding with each other not to bid against each other and carried out the said agreement and understanding at such auction sale, and that by réason thereof chilled the bidding, and if you further find that as a direct and proximate result thereof, the attempted auction sale did not produce a bona fide bid which would have been reasonable, and if you further find that the plaintiffs were damaged as a direct and proximate result thereof, and if you further find that anyone, as a direct and proximate result of said alleged conspiracy, if you so find, failed to make bona fide bids at the foreclosure sale mentioned in the evidence, and that the plaintiffs by reason of said acts of defendants, if you so find, suffered damages, then you will find in favor of plaintiffs and against such of the defendants, if you so find, as participated or joined in the said acts.”’ While the meaning of this portion of the instruction is not clear, we have construed it as hypothesizing that the named defendants entered into an agreement not to bid against each other and carried out that agreement (1) at the auction sale and (2) at the foreclosure sale.

Although there was no allegation in the first count of the petition to support the submission in regard to the auction, wc will assume for the purposes of this' appeal (but do not decide) that' the issue so submitted was “tried by express or implied consent of the parties,”'.and it shall be treated in all respects as if it had been raised in the pleadings. Section 509.500 RSMo 1959, V.A.M.S.

We will -state the evidence as briefly as possible, although since wc will review the question of submissibility we must, of necessity, state the testimony in some detail. The tract of land here involved was known as “Leisure Lea.” It was rather extensively improved. The main residence, including servants’ quarters, had a total of-14 rooms and 4 and ½ baths. Another two-story building called the “playhouse” had a large recreation room, bath, and kitchen, on the first floor and two very large bedrooms and two baths on the second floor. There was also a two-room log house on the premises as well as a combination tool house and bath house. The improvements included a rather large barn and implement shed. Also on the premises was a large swimming pool complete with filtering system, and other appurtenances. The premises were apparently well fenced and contained outdoor picnic facilities. Running water was provided by a deep well and pumping system. The improvements occupied perhaps ten acres of land, and the evidence indicated that the remaining 90-acre tract was rather rough and hilly and for that reason there was a conflict in the evidence as to its suitability for residential development.

Plaintiffs, husband and wife, acquired this property in January 1953. Prior to that time they had operated a hamburger and root beer stand on Clayton Road with a lease which would not expire for seven years, and owned a home in Richmond Heights. They acquired Leisure Lea from Raymond Muckerman at a valuation of about $97,000. In general, the terms of the transaction were that plaintiffs conveyed their business at a valuation of $27,500, and their home, in which they appeared to have an equity of about $10,000, to Mr. Mucker-man and gave him a first deed of trust upon Leisure Lea for $60,000. The documentary stamps on the deed, however, indicated a consideration of $82,000. Plaintiffs occupied the residence on the premises and rented the playhouse and other facilities to various persons and organizations for picnics, parties, and other recreational purposes. There was testimony that in 19SS they grossed $11,000 from those rentals.

Plaintiffs, however, did not prosper. During a part of the time they owned these premises they engaged in a wholesale chili business which was not successful, and also apparently spent considerable money prospecting on their land for uranium which was not found to be present in commercial quantities. Beginning in the fall of 1953 or the spring of 1954 plaintiffs began making efforts to sell this property. It was listed with various real estate brokers but they were never able to sell it. It would appear that in the first part of 1956 they received a bona fide offer from one Wen-neker involving an exchange of property which plaintiffs seriously considered but finally refused to accept because the purchaser would not agree that they could reserve 50% of the mineral rights. In February 1955 plaintiffs borrowed $13,400 from Larry Seeman and gave a second deed of trust to secure said loan.

The first contact plaintiffs had with defendants was in February 1956. At that time Mrs. Fitzpatrick called the Federer office and talked with Mr. Liebmann concerning some property he had advertised for sale. In that conversation he learned that plaintiffs desired to sell their property and also needed a loan to take care of the second mortgage, delinquent taxes, and other items. Shortly thereafter Liebmann took Mr. Federer to Leisure Lea where they looked at the premises and discussed the situation with Mrs. Fitzpatrick. As a result of that conference Mr. Federer obtained a $24,000 loan for plaintiffs from defendant Bouckaert. Plaintiffs paid Federer Realty Company a commission of $1,000 for obtaining the loan and gave the company an exclusive listing, for a period ending October 31, 1956, to sell Leisure Lea. From the proceeds of the loan plaintiffs had $5,757 remaining after payment of the prior second mortgage, taxes, and a past due installment on the first deed of trust. The listing agreement (dated February 15, 1956) authorized a sale of the property for $150,000 for the whole tract, or $89,500 for the improved 10 acres and $90,000 for the unimproved 90 acres. The commission provided in the agreement was 5% of the sale price. Shortly thereafter the realty company placed a “For Sale” sign in a wooded section of the premises facing Baxter Road but Mrs. Fitzpatrick did not like the location thereof and had it moved to another part of the property.

Mr. Liebmann was the listing agent for the realty company and had the primary responsibility of attempting to sell the property. Mrs. Fitzpatrick testified that as far as she knew neither Mr. Liebmann nor Mr. Federer ever brought any prospective buyer out to look at Leisure Lea; that she and Mr. Liebmann had frequent telephone conversations and she furnished him with the names of all persons who had ever appeared to be interested in purchasing the place.

Federer Realty was not successful in selling the property during the period of its exclusive listing. After the listing expired the plaintiffs began dealing with other real estate agencies and continued their efforts to sell the property. On January 3, 1957, plaintiffs defaulted in the payment of an installment due on the first mortgage. The 1956 taxes on the property were unpaid and delinquent. On February 15, 1957, plaintiffs defaulted upon the second deed of trust. Mrs. Fitzpatrick testified that at that time she and her husband went to see Mr. Federer and asked for an extension of time but that it was refused. She said Mr. Federer suggested that he might arrange another loan for five months for another commission of $1,000 but they would have to give him an exclusive sales listing for one year. Plaintiffs apparently did not make any effort to obtain another loan but decided to hold an auction and attempt to sell the property in that way. The sale was held on March 9, 1957 in the large room in-the playhouse on the premises. Plaintiffs had expended about $2,500 in advertising the sale. It was advertised in a number of newspapers and they also prepared a brochure which was sent to all persons who had indicated an interest in the property. No foreclosure proceedings were commenced by the holder of either the first or second deed of trust until after the sale was held. About 60 or 70 persons attended the auction. Mr. Fitzpatrick conducted the sale. Prior to the auction defendant Sander had looked at the property and had talked with plaintiffs concerning it. Mr. Federer and Mr. Liebmann attended the auction and were sitting together, and when Mr. Sander came into the room Mr. Lieb-mann got up and gave Sander his seat. After Mr. Fitzpatrick had described the property he called for bids. A Mrs. Lehr bid $85,000 and thereafter Mr. Sander bid $86,000. Plaintiffs presented evidence that after Sander had bid $86,000 Mr. Federer spoke to him in a loud whisper and said, “Bid $100,000 and stand pat for awhile.” This whisper is the main evidence relied upon by plaintiffs in contending that the defendants “chilled the bids” at this auction. No other bids were made and finally Mr. Fitzpatrick called off the sale.

A few days after the auction foreclosure proceedings were commenced on the second deed of trust. The sale was held on April 5, 1957. Present at the sale were plaintiffs and their attorney, defendants Sander, Federer, and Bouckaert. Defendant Liebmann was the trustee conducting the sale. Also present were Henry Haffner, a real estate broker who had made an effort to sell the property, and Sam Duke, owner of the notes secured by the first deed .of trust. Prior to the sale plaintiffs served a notice of redemption on the trustee and this was read at the sale. When bids were called for Bouckaert bid $25,000 and Sander bid $25,050, and the property was sold to him for that price. This sale, of course, was conducted subject to the encumbrance of the first deed of trust and the delinquent taxes. • After payment of the expenses of the sale there was a deficiency oi $112,35 upon the amount due Bouckaert.

About March 21, 1957, plaintiffs had received a letter from Father Francis P. Crane, representing the LaSalette Mission Seminary, indicating an interest in Leisure Lea for the establishment of a school. Shortly thereafter Father Crane looked at the premises and indicated a definite interest in the property. Two days before the foreclosure sale one of the plaintiffs called him at Jefferson City and made a final offer to sell the property for $100,000 and, according to the testimony of Mrs. Fitzpatrick, he stated he would take it. On the morning of the foreclosure sale Mr. Fitzpatrick prevailed upon Mr. Federer to telephone Father Crane and Mr. Fitzpatrick listened on an extension phone. Fitzpatrick testified that in that conversation Father Crane asked Federer to hold off foreclosure until he could notify headquarters in the East and that he would take the property at $100,000; that Mr. Federer had replied that Father Crane could have the property and that he, Federer, would take care of the Fitzpatricks. Fitzpatrick’s testimony as to that conversation was disputed by both Federer and Father Crane. Immediately thereafter Federer advised Mr. Fitzpatrick that the sale would not be postponed and it was held shortly after noon on that day.

Mr. Fitzpatrick testified that a few days following the foreclosure sale Mr. Sander came to their place and offered to buy the equipment at a price of $2,500 if plaintiffs would vacate the premises by May 1. He testified that in that conversation Sander also stated that if Father Crane bought the place he would give plaintiffs one- third of the profits and that he, Sander, would keep one third, and would give Federer one third because of his connection in the deal previous to that time; that on the following Saturday Mr. Sander, brought .out a written proposal and showed it to them, but when they did not immediately accept the proposition he refused to -let them keep the paper and took it with him when he left.

Nettie Brockmeyer, a real estate agent, testified for plaintiffs and stated that in her opinion Leisure Lea, at the time of foreclosure, was worth $150,000. She also testified that she had a client interested in obtaining property in that area at a price of from $Í25,000 to $150,000; that she had called the Federer office and asked the price of plaintiffs’ property and some unidentified person quoted it at $200,000.

William S. Bahn, an attorney, testified that he was a close friend of plaintiffs and had informally negotiated for the purchase of Leisure Lea. He said he had told the plaintiffs that he would be interested in the property at around $100,000 and “they were very candid and blunt about it and said they wouldn’t consider that at any time.” This witness also stated that two or three months before the foreclosure he called Mr. Federer and asked the price of the property and was told that it was $140,000. He told Mr. Federer that he was interested in the property at from $90,000 to $100,000 and Mr. Federer said it wouldn’t do any good to make that offer because it wouldn’t be acceptable to plaintiffs. Mr. Bahn testified that he then outlined to Mr. Federer the reasons he thought the property was worth no more than $100,000 and Mr. Fed-erer replied that his views were probably based on “good logic and good reasoning but he knew they would not be interested.”

Plaintiff also presented the testimony of Eugene H. Bruns, a real estate appraiser, who was of the opinion that the property had a reasonable market value of $170,000 on the date of foreclosure.

Mrs. Fitzpatrick testified that immediately after the foreclosure sale Mr. Federer said to her, “If Father Crane buys the property you will be taken care of.” Plaintiffs also read as an admission against interest from the deposition of Mr. Federer the following (relating to a conversation with Mrs. Fitzpatrick on the day of the sale) : “I told her that' if the LaSalette Fathers came back into the picture, I thought that I might try and prevail upon Mr. Sander to sell it to them and give her something out of it, just some salvage, be-' cause she pleaded with me just before the auction [foreclosure] that I should stop the auction [foreclosure], I told her that it was not in my power.” Father Crane did not buy the property. At trial time it was still owned by Sander. The LaSalette Fathers purchased another property in St. Louis from the Sisters of St. Rita a year or so after the foreclosure -of Leisure Lea.

Plaintiffs read alleged admissions against interest from the depositions of each of the individual defendants as follows: From the deposition of Elmer A. Sander: “Q. Now, after the foreclosure, did you have any conversation with Mrs. Fitzpatrick about selling the property? A. No, nothing other than they mentioned Father Crane being interested in a portion of it.

“Q. Didn’t you have some conversation about selling the property and dividing the profits three ways? * * ■* A. Not any three ways, no, sir.
“Q. How was it to be divided, if not three ways? A. I think that I told them that if the purchase of a portion of it [by Father Crane] was arranged, I think it was primarily the improved portion, that I would make some arrangement with them to give them a third, if they handled the procedure.
“Q. A third of what? A. Whatever profits.”

From the deposition of William Federer:

“Q. Now, did you bring any prospects to the Fitzpatricks? A. I personally did not bring any prospects. We advertised the property extensively every Sunday and we ran ads that are larger ads than usual on that type of property. There were inquiries on it; Mr. Liebmann handled some of those inquiries, and he sent people out to look at it, but I personally was not active in the sale of that property.
“Q. Did you know Mr. Sander before then? A. Yes. Oh, I’d say possibly three or four months prior I met Mr. Sander when he purchased a large property through our office.
“Q. And it is your testimony that you had no conversations with him prior to the auction? A. No. * * *
“Q. Now, have you done business with Mr. Bouckaert over a period of years ? A. Yes, sir.
“Q. Do you sell him deeds of trust all the time? A. That is right.
“Q. Your relationship has been close, has it? A. Well, it’s been a relationship of client and real estate office. * * *
“Q. You never submitted any offer as I understand? A. No, I had no offer personally.
“Q. That was left to Mr. Liebmann entirely, wasn’t it, the sale of that property? A. Yes.
“Q. You had nothing further to do with it after you took the listing? A. Well, I had numerous telephone calls which I answered, inquiries about the property from various people, and I spoke to them about the property and tried to sell it to them. *1' ⅜ ⅜
'fQ. Do you remember the conversation about making the loan for them for five months? A. There was some discussion about getting an extension on the loan, in February. * * *
“Q. Did you ask them for a commission of a thousand dollars on that occasion? A. No.
"Q. Flow much did you ask them for? A. I think I said if we financed any- — obtained any additional loans from Mr. Bouckaert, we would want a commission of $500.00. * * * They were to give us a sales contract if we made the loan. * * *
.“Q. Now prior to, the foreclosure, did you discuss the purchase of the property with Mr. Sander? A. Prior to the foreclosure ?
“Q. Yes. A. No.
“Q. He never talked to you about the property at all? A. Yes, he talked to me one time and said he was going out to their auction. * * *
“Q. Did you know whether or not Mr. Sander was going to bid at the foreclosure ? A. I did not.”

From the deposition of Peter Bouckaert:

“Q. Have you bought real estate from him or through him [Federer] ? A. Yes.
“Q. Have you bought deeds of trust through him? A. Yes. * * *
“Q. Did you make any investigation to determine the value of the property [Leisure Lea] ? A. No.
“Q. At no time? A. At no time.
“Q. You simply took Mr. Federer’s word for it, is that right? A. That is right.
“Q. And you say you did not know how big a first mortgage was on the property when you bought this second deed of trust? A. Not exactly, no. * * *
“Q. Now were you present at the private auction that has been discussed here? A. No.”

From the deposition of Mr. Liebmann:

“Q. Who did you take out there ? A. I took two prospects out there, * * * Mr. Nothum and Mr. Tomich who are developers. They wouldn’t even get out of the car. And I took Mr. Frank Ramacciotti, St. Louis attorney, out there. * * *
“Q. What price did you quote Frank Ramacciotti? A. I told him that he could buy the whole thing for a hundred and fifty thousand * * *.
“Q. Did you ever get any bid on it at all? A. No, sir, no bid at all. * * *
“Q. What would you say would be the fair and reasonable market value of it in 1956? A. As I said, I figured about $1,-000.00 an acre on the land. Now the buildings were most peculiar buildings; you might almost call them special purpose buildings; and most people would have little or no use for them. * * * Based upon the information available to me at the time we took this listing, I would say that the fair market value of that property was a hundred and twenty-five to a hundred and fifty thousand dollars.”

All of the individual defendants testified and each denied that there was any agreement between them which had anything to do with any one of them acquiring title to Leisure Lea. Defendants Federer, Lieb-mann and Sander each denied that Federer made any statement to Sander at the auction relating to the amount the latter should bid. Father Crane testified that he was interested in Leisure Lea but had no authority to make an offer and did not do so. In regard to his telephone conversation with Mr. Federer he testified that he told him he was interested in the place but would have to get authority from “the Provincial and that he in turn would have to get permission from the General” before an offer could be made; that he did not request that the foreclosure sale be postponed.

It would serve no purpose to recite the bulk of the evidence offered by defendants and it will not be included herein. Additional evidence will be hereinafter stated in the course of the opinion.

“In considering whether plaintiff made a submissible case we, of course, must view the evidence in the light most favorable to plaintiff and disregard all of defendant’s evidence except such portions as may aid plaintiff.” Reece v. Reed, Mo. Sup, 326 S.W.2d 67, 70.

We are of the opinion that there was not sufficient substantial evidence to support the first submission in Instruction No. 1. That submission was distinctly separate from the second submission and directed a verdict against defendants Federer, Liebmann, and Federer Realty Company upon a finding that during the period the exclusive listing contract was effective (2-15-56 to 10-31-56) said defendants made no bona fide efforts to find a purchaser as set out in said contract, discouraged potential buyers, and that if bona fide efforts had been made the property could have been sold in time to have prevented foreclosure at a sales price above the indebtedness of plaintiffs on said property. The encumbrances at that time were approximately $80,500 principal, plus current interest. In the sales contract plaintiffs agreed to sell the premises for $150,000 or, alternately, the unimproved 90 acres for $90,000 and the improved 10 acres for $89,-500, or for “such other price and terms to which we shall consent.”

The Realty Company did not guarantee that it would sell this property. It was, however, required to exercise reasonable skill and ordinary diligence in attempting to find a purchaser for it. Myers v. Adler, 188 Mo.App. 607, 176 S.W. 538. We do not think the evidence favorable to plaintiffs would support a finding that these defendants failed to make a bona fide effort to find a purchaser. Plaintiffs’ evidence shows that said defendants (1) placed a “for sale” sign on the land visible from Baxter Road, (2) “advertised the property extensively every Sunday and ran ads that were larger than usual on that type of property”, (3) Mr. Federer answered numerous inquiries about the property from various people and tried to sell it to them, and (4) Mr. Liebmann took three prospects out to look at the property.

The fact that the realty company failed to sell the property would not indicaté that it did not make a bona fide effort to do so. Plaintiffs tried in various ways and used numerous agents over a period of over three years and did not sell it. It was admittedly a difficult property to sell, as indicated by the testimony of Mrs. Fitzpatrick who stated that “if anyone knows anything at all about real estate they know a piece of property like that does not sell overnight, it takes time, sometimes even years, to dispose of a piece of property of that size.”

Plaintiffs contend that the fact that these defendants quoted the price of the property as a whole at various amounts exceeding $150,000 would support a finding that they were attempting to discourage potential buyers. We do not think so. It is common knowledge that the asking price for real estate is often more than the amount for which it can be bought. Fed-erer Realty was authorized to sell the property for $150,000. If it expected to obtain that amount it was not an indication of bad faith that it priced the property at $179,500 or even $200,000.

The proof is also deficient in other respects. One element of this submission permitted a finding that if bona fide efforts had been made the property could have been sold at a price above the indebtedness of plaintiffs on the property. There is no evidence that, during the period of this contract, plaintiffs would have consented to sell the property for less than $150,000 and certainly there is no evidence that they would have accepted any offer (less than $150,000) that exceeded the indebtedness, i. e., $80,500. In this connection we note the testimony of Mrs. Fitzpatrick to the effect that as late as March 8, 1957, she had turned down an offer of $125,000 for the property.

We are also of the opinion that, as a matter of law, the failure of these defendants to effect a sale of Leisure Lea prior to October 31, 1956, would not have been the direct proximate cause of any damage plaintiffs sustained by reason of their failure to sell the property before foreclosure. This for the reason that more than five months elapsed between the time the exclusive sales contract expired and the date of foreclosure. During that period plaintiffs endeavored to sell the property themselves, listed it with other real estate brokers, and held the highly advertised auction in an effort to effect a sale at a price satisfactory to them. Since, by every means at ■ their command, plaintiffs were unable (or refused) to sell the property at a price exceeding the encumbrances during the last five months before the foreclosure sale, it cannot reasonably be said that the failure of the named defendants to effect a sale of it during a prior period was the proximate cause of the damage resulting from a failure to sell before foreclosure. We recognize that no hypothesis referring to proximate cause was contained in the submission we are considering but we think such was an essential element of the submission and hence should properly be considered in determining whether plaintiffs made a submissible case upon the theory hypothesized.

It is also our conclusion that plaintiffs failed to make a submissible case bn the second submission in the instruction. It directed a verdict upon a finding, in part, “that on or about the 9th day of March, 1957, * * * any two or more of the defendants * * * entered into an agreement and understanding, with each other not to bid against each other and carried out the said agreement and understanding at such auction sale, and that by reason thereof chilled the bidding, * * * and if you further find that anyone, as a. direct and proximate result of said alleged conspiracy * * * failed to make bona fide bids at the foreclosure sale mentioned in the evidence * 1 * Plaintiffs had the burden of proving the agreement or conspiracy submitted by clear and convincing evidence. Woolsley v. Wells, Mo.Sup., 281 S.W. 695. In the case of Walsh v. Walsh, 285 Mo. 181, 226 S.W. 236, 242, this court stated that “Fraud is’ never presumed ; and, while it may be proved by circumstantial evidence, if the transaction relied upon to prove fraud is as consistent with honesty and good faith as with a fraudulent purpose, it will be referred to the better motive.” 226 S.W. 242.

There is certainly no direct evidence of any agreement between the. defendants. There, is, also no direct evidence. that any person refrained from bidding at either the auction or the foreclosure sale because of any act or conduct on the part of any of the defendants. Our review of the evidence favorable to plaintiffs fails to disclose any circumstances which would constitute substantial evidence of the agreement submitted.

One circumstance relied upon by plaintiffs is the. loudly whispered suggestion of Fed-erer to Sander at the auction to “bid $100,-000 and stand pat for awhile.” This is said to have occurred after Sander had bid $86,000. We are unable to understand how that would chill the bidding at the auction. Sander did not bid $100,000. The fact that the suggestion to do so was made to him should, not reasonably have discouraged anyone wanting to bid in the area between $86,000 and $100,000. As is true at any auction, they needed only to bid in order to find out the future course Sander would follow. Also, we think the suggestion could not reasonably be said to indicate an agreement between any of the defendants not to bid against each other at the auction. Federer was encouraging Sander to raise his own bid $14,000. If Sander had followed the suggestion it would have been very helpful to plaintiffs and would likely have resulted in the sale of the property at a price which would have permitted plaintiffs to receive about $15,000 for their equity.

Plaintiffs also contend that it is significant that after the auction Sander told Mr. Fitzpatrick he had no further interest in the property and yet he came to the foreclosure sale prepared to comply with the trustee’s requirements concerning the manner of payment. We do not think those facts would tend to prove an agreement. There is no reason why Sander could not have changed his mind and thereafter have contacted the trustee and ascertained the requirements concerning payment in the event he was successful in buying the property at the foreclosure sale.

Another circumstance relied 'upon by plaintiffs is the conduct of Bouckaert in making the $24,000 loan in complete reliance upon the recommendation of Mr. Fed-erer and the fact that the latter was his agent in collecting interest and in handling the details concerning the foreclosure. That was the normal conduct for a real estate agent and client who had been doing that type of business together for 40 years. It was natural for Federer to endeavor to keep his client from sustaining a loss on a loan he had recommended. On the other hand, Bouckaert merely took the steps required to protect his interest, i. e., (1) foreclosure after default, and (2) bidding substantially the amount required to cover his loan at the foreclosure sale. We see nothing in that conduct to support plaintiffs’ case.

Plaintiffs also rely on their testimony to the effect that shortly after the foreclosure sale Mr. Sander told them that if Father Crane bought the place he would give one third of the profit to them and one third to Mr. Federer. That statement is difficult to understand. It does not appear that Sander was under any legal obligation to either the plaintiffs or Federer. However, Father Crane had been definitely interested in purchasing the property at the time of the sale. Plaintiffs had been in contact with him and Mr. Federer talked with him in the morning the day of the sale. Plaintiffs had pleaded with Mr. Federer, as agent for Bouckaert, to postpone the sale so that time would be available to consummate a sale to Father Crane. Under these circumstances Sander apparently felt that he was under a moral obligation to share the profits with plaintiffs and Federer if the property was sold to Father Crane. While we find it somewhat difficult to understand Sander’s generous attitude, we do not think this circumstance is substantial evidence of an agreement between the defendants, or any two or more of them, not to bid against each other at either of the sales. Actually, Sander did bid against Bouckaert at the foreclosure sale.

Another circumstance relied upon by plaintiffs is the alleged fact that the trustee, Liebmann, did not wait long enough after Sander bid $25,050 before he “knocked” the property off to him. The testimony is that after Sander bid Liebmann waited “a little while” and then asked three times if there was another bid, and, when none was made, waited “maybe a half minute” and declared that Sander was the purchaser. We see no merit in this contention. It appears that everyone present was afforded ample time to make a bid if he desired to do so.

We will not further extend this already lengthy opinion by a more detailed discussion of the facts and circumstances in evidence. We deem it sufficient to say that we have carefully considered all of the evidence favorable to plaintiffs and do not find any substantial evidence which constitutes convincing proof of the second submission in Instruction No. 1.

Since we have ruled that plaintiffs failed to make a submissible case we expressly refrain from ruling as to whether the facts hypothesized in either of the submissions in the instruction would have been sufficient to support a verdict for plaintiffs even if they had been supported by the evidence.

The conclusion we have reached makes it unnecessary to discuss other points briefed.

The order entering judgment for defendant Bouckaert is affirmed. The orders granting new trials to the remaining defendants are reversed and the cause is remanded with directions to enter judgment for said defendants in accordance with their motions for directed verdicts.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: HOUSER, Commissioner.

text:
    Chris E. SKADAL, Plaintiff-Respondent, v. Melvin Francis BROWN, Defendant-Appellant.
    No. 48457.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Motion for Rehearing or Modification or for Transfer to Court en Banc Denied Dec. 11, 1961.

      Robert L. Jackson, Kansas City, for appellant.
    Sanders & Niewald, Kansas City, by Lewis W. Sanders, Kansas City, Sevier & Turnage, Liberty, by Robert F. Sevier, Liberty, Sebree, Shook, Hardy & Ottman, Kansas City, by David H. Clark, Kansas City, for respondent. •. :
   HOUSER, Commissioner.

Chris E. Skadal brought suit against Melvin Francis Brown for personal injuries (Count I) and property damage (Count II). Defendant filed a counterclaim for property damage. A trial jury found the issues for plaintiff and against defendant on Count I and awarded plaintiff $28,000 damages; for defendant and against plaintiff on Count II; and for plaintiff and against defendant on defendant’s counterclaim.

On this appeal from the judgment entered below defendant makes these points: The verdict is internally inconsistent; the verdict is contrary to Instruction No. 1; Instructions Nos. 1 and 14 are in conflict; the verdict is excessive, violates the rule of uniformity, and is so excessive as to evidence bias and prejudice by the jury.

This litigation arose out of a nighttime collision on Highway 69 north of Kansas City. Plaintiff, driving a tractor-trailer combination, transporting a cargo for one Millard, was forced to stop because of fuel trouble. Plaintiff says he came to a stop completely off the highway and on the shoulder. Plaintiff owned the tractor; Millard owned the trailer. Plaintiff set out reflectors to warn passing traffic. Defendant was driving a tractor-trailer unit in the same direction plaintiff had been traveling. As defendant approached, plaintiff was standing in the center of the right-hand lane, waving a flashlight in an attempt to warn defendant. Defendant did not slow down, and at a certain point plaintiff, determining that defendant was not going to stop, stepped or ran off the highway onto the shoulder, and stood up against his cab to let defendant pass. Instead of clearing plaintiff’s equipment the right front of defendant’s tractor struck the left rear of Millard’s trailer. According to plaintiff, the collision threw him onto the highway in front of his tractor; inflicted personal injuries upon him and damaged his tractor. Defendant testified that he did not see the reflectors, or plaintiff, or the trailer until defendant was within 50 to 75 feet; that defendant immediately swerved to the left to miss the truck, saw plaintiff on the highway and swerved back to the right to avoid striking plaintiff, and his tractor then struck the Millard trailer, which was parked in such a position that it occupied a considerable portion of the highway.

Instruction No. 1 submitted plaintiff’s case to the jury on defendant’s failure to "keep a careful and vigilant lookout ahead and to see the lights and warnings given hy plaintiff, under a direction that if the jury found that such failure constituted negligence “and directly caused injuries to plaintiff and damages to his tractor, then your verdict shall be for the plaintiff on Counts I and II of plaintiff’s petition and against the defendant on defendant’s ■counterclaim.”

Instruction No. 3 directed an allowance to plaintiff of the difference between the reasonable market value of the tractor immediately before and immediately after the ■collision, if the jury' should “find the issues in favor of plaintiff and that his tractor was damaged as a direct result of the facts recited in Instruction number one.” Instruction No. 9 directed a -verdict for defendant and against plaintiff on defendant’s counterclaim upon a finding that plaintiff parked his tractor-trailer wholly or partly on the right-hand side of the traveled portion of the pavement so as to block the movement of traffic; that there were no lights or warning devices on the equipment and that this constituted negligence causing the collision.

Instruction No. 14, which prescribed the various possible forms of verdict, included the following form which the jury used:

“We, the jury, find the issues for the plaintiff on Count I of plaintiff’s petition and assess plaintiff’s damages in the sum of $-and for the defendant on Count II of plaintiff’s petition and for plaintiff on defendant’s counterclaim.
Foreman

The defendant first asserts that the verdict is internally inconsistent in that the jury could not logically find.for plaintiff on Count I of the petition while at the same time finding for defendant on Count II; that if the jury believed plaintiff’s version of the accident plaintiff was • entitled to and should have recovered on both counts of the petition but that if the jury disbelieved plaintiff’s story, plaintiff should have lost on both counts. Defendant points to plaintiff’s counsel’s -argument to the jury that Instruction No. 1 “envisions an award to [plaintiff] on both his personal injuries and the property damages and if you don’t feel that he is entitled to both of those, then don’t give him a cent because I do not personally see how you could find that he was entitled to personal injuries and not entitled to the property damages.” Defendant argues that “despite all logic, in the face of plaintiff’s own closing argument, and in the teeth of Instruction No. 1, the jury found for plaintiff on Count I but against him on Count II,” and that this verdict cannot stand because it is inconsistent, illogical and self-contradictory.

Defendant cites Blackman v. Botsch, Mo. App., 281 S.W.2d 532, a negligence action in which a verdict for plaintiff on the petition and for defendant on the counterclaim was held inconsistent and self-destroying; Ruth v. McPherson, 150 Mo.App. 694, 131 S.W. 474, in which a verdict for plaintiff-physician for professional services rendered and for defendant-patient on a counterclaim for malpractice was held unreconcilable and inconsistent with itself; Smoot v. Riebel, Mo.App., 274 S.W. 522, in which a verdict for plaintiff on plaintiff’s petition for the value of a foxhound killed by defendant, and also for defendant on defendant’s counterclaim for injury to his stock, inflicted by the dog, was not permitted to stand, as inconsistent; Ferd Bauer Engineering & Contracting Co. v. Artic Ice and Storage Co., 186 Mo.App. 664, 172 S.W. 417, in which a verdict for plaintiff-contractor in a suit on a building contract and for defendant-owner on his counterclaim for damages from delay and defects in the building was held contradictory; Law v. City of St. Louis, 292 Mo. 384, 239 S.W. 124, where an injured person sued both the city and a street railway company for personal injuries; both defendants defended on the ground of contributory negligence; and a verdict for the city and against the street railway company was held inconsistent; Ruehling v. Pickwick-Greyhound Lines, 337 Mo. 196, 85 S.W.2d 602, and Stevens v. D. M. Oberman Mfg. Co., 229 Mo.App. 627, 79 S.W.2d 516, suits brought against both employer and employee on the theory of respondeat superior, wherein verdicts returned in favor of the employee but against the employer were deemed inconsistent; and cases such as Lanning v. Trenton & Mercer County Traction Corp., 130 A. 444, 3 N.J.Misc. 1006, where a wife sued for personal injuries and the husband in a separate count sued for loss of services or medical expenses, and the'jury found in favor of one spouse but 'against the other. Such verdicts were set aside as internally inconsistent. However correct these decisions were under. their factual situations, they have no application here.

This verdict is not necessarily inconsistent. Whether it is inconsistent depends in this case upon the evidence offered to sustain Counts I and II. Redmond v. Jones, Ky.App., 249 S.W.2d 535, 536. While the same proof on the issues of negligence, contributory negligence and causation would be required to sustain each of the two counts, different proof in other respects would be required to authorize the jury to award pecuniary damages under both counts. The burden of proof was upon plaintiff to establish by a preponderance of the evidence under Count I that he sustained personal injuries, the nature and extent of the injuries inflicted, and the special items of damage, and under Count II to establish that his tractor was damaged, the nature and extent of the damages sustained, and the pecuniary loss suffered. Apparently plaintiff satisfied the jury on Count I, but failed on Count II to establish to the satisfaction of the jury that his tractor actually was damaged, or the extent of the damage or the pecuniary loss sustained. It was the function of the jury to pass upon the credibility of plaintiff’s testimony that the tractor was damaged and as to its reasonable market value before and after the collision, and to determine the weight and value to be accorded his testimony. Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 623, 624. Although plaintiff’s testimony was uncontradicted, this did not entitle plaintiff to have it accepted as true. Thomson v. Butler, 347 Mo. 269, 147 S.W.2d 437, 439. The jury was privileged to accept or reject plaintiff’s testimony with respect to property damage, either in whole or in part, even though un-contradicted and unimpeachcd. Dempsey v. Horton, supra. With these preliminary observations in mind, we note that plaintiff’s evidence that the tractor was damaged and as to the extent of the damage was brief, weak, and unsatisfactory. Furthermore, it was unsupported by photographic evidence and uncorroborated by a mechanic or other witness. It consisted of two questions and answers, as follows: “Q. Was there any damage to the tractor? A. Yes, sir. Q. Tell us generally what the damage to the tractor was. A. The back part of the cab, the left door, the left fender, and the frame was twisted.” Likewise, plaintiff’s evidence as to the pecuniary loss suffered was brief, weak, uncorroborated, and impeached. Plaintiff gave an “estimation” that the value of the tractor before the collision was $3,000 and its value after the collision was $300. Defendant’s counsel developed on cross-examination that while plaintiff had sought damages of $3,500 in Count II, plaintiff had purchased the tractor a year and a half before the accident for only $2,500, at a time when the tractor had around 70,000 miles on it, and that plaintiff had received an offer to repair it for $1,200. With the validity of plaintiff’s testimony as to pecuniary loss thus impeached; the bona fides of his claim for property damage thus questioned ; no supporting testimony to substantiate the amount of the offer to repair, and no other evidence before it on the question of property damage, the jury reasonably could have disregarded all of plaintiff’s testimony with reference to pecuniary loss under Count II. Southern Bell Tel. & Tel. Co. v. Skaggs, 34 Tenn.App. 549, 241 S.W. 2d 126, 134. The verdict for defendant on Count II thus accounted for, we find the whole verdict internally consistent.

Second, defendant assails the verdict on the ground that it conflicts with and contradicts Instruction No. 1, which directed jury to return a verdict for plaintiff “on Counts I and II” if it found the facts to be as submitted by plaintiff. Defendant says that the verdict of a jury which thus violates its legal duty to follow the directions of the court cannot be permitted to stand. We consider this in connection with defendant’s third point, that Instruction No. 14 is in irreconcilable conflict with Instruction No. 1 in that the former authorized a verdict for plaintiff on Count I and for defendant on Count II,whereas the latter required a verdict for plaintiff on both Counts I and II if it found the issues of negligence for plaintiff. It is true that the jury did not follow the direction of Instruction No. 1 and that Instructions 1 and 14 are in conflict, but this does not automatically entitle defendant to a reversal of the judgment, in the absence of a showing of prejudice to the rights of defendant. If the verdict had been unintelligible; if confusion had resulted from the form in which it was returned, or if the meaning and intent of the jury otherwise had been rendered doubtful, there would be no hesitancy in reversing the judgment for these reasons. This verdict, however, is clear, understandable, and leaves no doubt that the jury intended to find the issues on the question of negligence for plaintiff and against defendant and to award plaintiff damages for his personal injuries, but to deny both plaintiff and defendant any recovery for damages to their property. No uncertainty, ambiguity or confusion appearing, this verdict can and should stand in the form in which it was rendered.

Finally, defendant makes the point that “the verdict was excessive for the type of injury suffered by the plaintiff and is not reasonably uniform with verdicts in other cases and is so excessive as to evidence bias and prejudice by the jury.” This Court recognizes a distinction between a verdict which is excessive and a verdict which is so grossly excessive as to indicate bias and prejudice. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157, 159; Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304; Taylor v. St. Louis Public Service Co., Mo.Sup., 303 S.W.2d 608, 612. A verdict which is excessive is one in-which the jury made an honest mistake in weighing the evidence as to the nature and extent of the injury and in fixing the damages and awarded a sum disproportionate tO' the amounts usually awarded for comparable injuries under the rule of uniformity. Such a mistake can be cured and corrected without a new trial, by requiring a remit-titür of. a .portion of the amount awarded. A -verdict'which is so grossly excessive as to indicate bias and prejudice is one in which the jury was guilty of misconduct by fixing an excessive figure as a result of bias and prejudice engendered during the course ■of the trial. Such misbehavior vitiates the ■entire verdict, not only as to the amount •of the award, but also as to the determination of liability, and cannot properly be corrected by a remittitur, Dye v. St. Louis-San Francisco Ry. Co., 361 Mo. 331, 234 S.W. 2d 532; Knight v. Swift & Co., Mo.Sup., 33S S.W.2d 795, 801, but requires that the verdict in its entirety be set aside. Stokes v. Wabash R. Co., supra, 197 S.W.2d, 1. c. 309, holds that an assignment of error of ■excessiveness based upon bias and prejudice of the jury will not serve to preserve the ■question of the simple type of excessiveness first above defined.

In his brief and argument defendant seeks relief on both grounds, contending that the verdict was excessive and asking for a remittitur under the rule of uniformity, and also contending that the verdict was ■so excessive as to evidence bias and prejudice upon the part of the jury, entitling him to an outright reversal of the judgment. As to the first of these contentions plaintiff takes the position, rightfully we think, that this point was not properly preserved in defendant's motion for new trial, as required by Supreme Court Rule 79.03, V.A. M.R. Paragraphs 15 and 16 of defendant’s motion for new trial contain the only references to the amount of the verdict. Para-’ graph 15 complains that the verdict, for plaintiff on Count I for $28,000 and for defendant on Count II as to property damage, is improper, illegal, and “shows on its face that it is the result of bias, prejudice, and sympathy on the part of the jury.” Paragraph 16 complains that the verdict of $28,000 on Count I “is so excessive as to indicate bias and prejudice upon the pait of the jury, induced, contributed to, and caused by the improper conduct of plaintiff’s wife, and improper, inflammatory and prejudicial statements and arguments of plaintiff’s counsel during the trial of the case.” Under the case of Stokes v. Wabash R. Co., supra, followed in Browne v. Creek, 357 Mo. 576, 209 S.W.2d 900, 906[13], neither paragraph properly preserved the point of excessiveness so as to authorize a re-mittitur on the basis that the jury made an honest mistake. Paragraphs 15 and 16 raise only the question of bias and prejudice which “savors of misbehavior on the part of the jury.” Jones v. Pennsylvania R. Co., supra, 182 S.W.2d, 1. c. 159.

On the question whether the verdict was so excessive as to indicate bias and prejudice, vitiating the entire verdict and thereby entitling defendant to a new trial, this Court has consistently ruled that the mere size of a verdict — the fact that it may be excessive — does not in and of itself establish that it was the result of bias or passion and prejudice, O’Brien v. Louisville & Nashville R. Co., 360 Mo. 229, 227 S.W.2d 690, 693, 694; Abernathy v. St. Louis-San Francisco Ry. Co., Mo.Sup., 237 S.W.2d 161; Keely v. Arkansas Motor Freight Lines, Mo.Sup., 278 S.W.2d 765, without showing some other error committed in the trial. Slater v. Atchison, T. & S. F. Ry. Co., 224 Mo.App. 824, 24 S.W.2d 660, 666. Defendant relies on two occurrences to justify a finding of misconduct upon the part of the jury: (1) plaintiff was taking drugs and was under sedation during the course of the trial to relieve headaches and tightness in his stomach (a fact elicited by defendant's counsel on cross-examination), and (2) plaintiff’s wife broke into tears while testifying, as a result of which the court declared a recess. Defendant contends that the taking of the pills tended to paint the picture of a pathetic, withdrawn victim of melancholia, but there is nothing in -this record to indicate that the taking of the pills affected plaintiff’s appearance, demeanor or mental operations, or cast him in this guise. Nor is it demonstrated that the tears had any effect upon the jury adverse to defendant’s rights. The trial court, which had every opportunity to see and observe the effect, if any, of this emotional incident, was not im-' pressed with the suggestion that defendant was prejudiced. A motion to discharge the jury on this ground was overruled. When the point was raised a second time in the motion for new trial, the court again overruled. We find nothing in the record to indicate any abuse of discretion on the part of the trial court in these rulings.

No reversible error appearing, the judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.