author: JACK P. PRITCHARD, Special Judge.

text:
    George BURROUGHS, (Plaintiff) Respondent, v. UNION ELECTRIC COMPANY, a Corporation, (Defendant) Appellant.
    No. 31164.
    St. Louis Court of Appeals. Missouri.
    March 19, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied April 10, 1963.
    William H. Ferrell, Keefe, Schlafly, Gri-esedieck & Ferrell, St. Louis, for appellant.
    James F. Koester and James M. Byrne, St. Louis, for respondent.
   JACK P. PRITCHARD, Special Judge.

In the trial court judgment was upon verdict in the original amount of $20,000, upon which a remittitur of $5,000 was ordered by the trial judge, to which order plaintiff complied, and from a final judgment in the amount of $15,000, defendant perfected this appeal.

Plaintiff, George W. Burroughs, thirty-four years of age at the time of trial, was on July 8, 1960, employed by the Millstone Construction Company, which was engaged in driving pilings or H-beams into the ground during the course of construction of the Mark Twain Expressway in the northern part of St. Louis, Missouri, and in the vicinity of Bircher Boulevard and Kingshighway therein. Mark Twain Expressway at this point runs in a general southeast-northwest direction, crossing over the Terminal Railroad tracks which run in a general east-west direction there. Defendant’s high voltage transmission lines run along both the north and south sides of the Terminal Railroad tracks and approximately parallel to them. The lower wire of the transmission line, carrying 34,500 volts, to the south of the tracks is the one from which plaintiff received electrical shock and burns on the occurrence in question.

Plaintiff is a carpenter by classification and also did welding. On said date his particular job was to get the pilings in place so that they could be driven by a pile driver which was rigged to a crane boom which was some 75 to 80 feet long. The pilings, being from 20 to 68 pounds per foot in weight, were in a pile which was located by a concrete retaining wall underneath and to the north of defendant’s lower wire about 20 feet. The boom of the crane, which was facing north on this occasion, was south of the power line and the end of the boom was 25 to 30 feet from the line, and about 30 feet higher than the wire from which plaintiff received his shock. The wire itself at its 'lowest point was some 45 feet above the ground underneath it. The crane had been moved from a position north of the Terminal Railroad tracks to the south thereof in the morning of July 8, 1960, before plaintiff began his work, and was placed on a knoll or rise in the ground adjacent to the place where the row of pilings or H-beams were to be driven.

On the day in question, in accordance with his assigned duties, plaintiff took into his hand a metal cable, called a “load line” or “pile line”, which was hanging vertically from the end of the crane boom, to guide it and pull it off the crane boom drum over to the north 40 or 45 feet to where a pile of pilings was stacked, in order that he might attach a “pincher” to the piling so it could be pulled to the rig and there be driven down by the pile driver. In doing so, plaintiff went down the knoll with the cable in his right hand, and as he got to the bottom of the hill he walked out and reached to get hold of the piling with his left hand, so that the line would not pull him back. He was facing east and looking down so he could see where to grab, and when he was about 6 inches past his arm reach from the pile, the cable somehow came into contact with the current from the defendant’s uninsulated power line. In going down the hill or knoll, plaintiff was required to look down to keep his footing and to negotiate the rough ground. At the time he was shocked, plaintiff was standing some 6 feet to the west of the pile of H-beams, and afterwards, when he regained consciousness, he was 6 feet to the east of the pile.

No one ever gave plaintiff any notice that the wires in question were not insulated, and he could not actually see, by merely looking up at the wire, that there was no insulation on it. No one from defendant company ever approached him, or gave him any literature or brochures of any kind of notice that the overhead lines were not insulated, nor was there any warning on the towers carrying the lines indicating that the wires were not insulated. About a month before the injury, defendant’s employees were working on towers at about the same place where the plaintiff was doing his same kind of work, in the same kind of manner— pulling the cable out and getting in close to the overhead lines, within 50 feet of and in plain view of defendant’s employees, who were there quite a while. Defendant’s official cars were also in the area. Defendant concedes, and its witness, Colteryahn, testified, that it had notice of workmen in the area of its power lines, and in answer to interrogatories defendant stated that it was aware of the highway construction and the use of the cranes in connection therewith, and that the line in question was uninsulated. Defendant also candidly admits in its brief herein that the issue of foreseeability of the likelihood of injury to persons lawfully in proximity to its electrical lines is not contended in this case.

We hold then that plaintiff made a submissible case of negligence against defendant upon the issues of defendant’s maintenance of this uninsulated wire in a place where it had reason to anticipate that persons (and this plaintiff) might lawfully be, and where such persons might be likely to come into contact with its wires, and also upon defendant’s failure to warn plaintiff that the wire in question was uninsulated. Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S.W. 654; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960, 972(11, 12); Davis v. Missouri Electric Power Co., Mo.App., 88 S.W.2d 217, 222; Lebow v. Missouri Public Service Co., Mo. Sup., 270 S.W.2d 713, 715(2) (3); Erbes v. Union Electric Company, Mo.Sup., 353 S. W.2d 659, 664; see also 18 Am.Jur. 485, Sec. 93; 29 C.J.S. Electricity § 44, p. 589.

But the real question in this case is whether plaintiff was contributorily negligent as a matter of law.

Plaintiff claims that he was not, as a matter of law, guilty of contributory negligence because he was performing his work in a routine manner, and since he did not of his own knowledge know that the overhead power lines were uninsulated, and because the defendant in no way warned him thereof, and because the danger was not apparent by observation. Furthermore, he says that there was no evidence that he voluntarily caused or permitted a contact with defendant’s line.

In addition to the facts stated above, on cross-examination plaintiff testified as follows :

“Q. You saw the steel towers that carry the electric lines in that location did you ?
“A. Yes, sir.
“Q. You saw them prior to the accident of July 8, 1960, did you ?
“A. I did, sir.
“Q. Mr. Burroughs, how long prior to July 8, 1960, had you been working at the general area of Bircher and Kingshighway and Euclid where this accident occurred?
“A. I believe that the date was around — now, I’m not sure of the date, but I think it was December 28, 1959.
“Q. You had been working in that general area for a little over six months, is that right?
“A. Yes, sir.
“Q. During that period of time, had you seen the steel towers with electric lines on them?
“A. Yes, I did.
“Q. Had you seen them frequently ?
“A. Yes, sir.
“Q. Did you consider those towers to carry electric lines ?
“A. Yes, sir.
“Q. Did you consider that the wires were electric wires on the towers?
“A. Yes, sir.
“Q. And did you also testify that the top of the crane was higher than the lowest of the electric lines ?
“A. Yes, sir.
“Q. Did you know, prior to the time you pulled the crane cable down to connect it with the piling that the top of the crane and the top of the cable in your hand was at an elevation higher than the electric wires?
“A. Yes, sir.
“Q. Did you know that the piling" that you were going down to attach was underneath the electric wires?
“A. Yes, sir.
“Q. Did you know that you were walking with the crane cable in the direction of the electric lines?
“A. Yes, sir.
“Q. You knew that the crane cable was higher than the wires ?
“A. Yes, sir.
“Q. Is that correct? Did you at any time look up to see whether the cable at the crane was moving toward the wires and going to be in danger of contacting them?
“A. No, sir.
“Q. Where were you looking? Down?
“A. Yes, sir.
“Q. Would you intentionally have taken a metallic cable such as the crane cable and taken hold of it with one hand and hit the wires that you saw in that area?
“No, sir.
“Q. Is that because you considered these wires might be dangerous?
“A. Sure.
“Q. That is the reason you wouldn’t have done it intentionally?
“A. Yes, sir.
“I wouldn’t pet a dog either on the street, either, because he might bite me.
“Q. Then, Mr. Burroughs, did you consider, I believe you said, that these wires might be hazardous, is that right?
“A. Yes, sir.
“Q. I believe you testified that when you walked with the cable, or rolled the cable down underneath them and toward them, you knew that the cable went up higher than the wires, you didn’t pay any attention to see whether or not it would contact it, is that right ?
“A. No sir, I thought the crane was a sufficient distance, the operator and the foreman both looked at it.
“Q. But you didn’t look up to see whether or not there was a possibility or a likelihood of contact, is that right?
“A. When I was pulling the cable, I didn't.”

Plaintiff has cited several cases which are set forth below in the same order as in his brief, which cases under their facts may be distinguished from the case at bar.

Hickman v. Union Electric Light and Power Company, Mo.Sup., 226 S.W. 570, involved facts showing that the deceased was employed on a drilling machine used for the purpose of drilling holes in a street for a sewer project. At the time of the accident the insulation on defendant’s wires had become defective. A sand line from the machine carelessly was carried by deceased’s co-workers and was brought into contact with defendant’s electric line while deceased had his hand on an iron lever on the machine. The court held that it does not affect the liability of defendant that the negligence of another concurred in producing it.

In Gellert v. Missouri Service Co., Mo. Sup., 221 S.W.2d 177, the only question was defendant’s negligence and whether such negligence proximately caused Gellert’s death, and there was no issue of deceased’s contributory negligence.

In Clark v. St. Louis & S. R. Co., 234 Mo. 396, 137 S.W. 583, the evidence tended to show that plaintiff was careful to prevent the guy rope he was elevating and passing over the wire from touching it or to touch it with any force which might disturb the insulation. The wires appeared to be safely insulated, but had what is called “weather proof insulation”, which was intended simply to protect the wires from being injured by the weather. The court held that this presented a question of fact which was under proper instructions submitted to the jury.

In Potter v. Sac-Osage Electric Cooperative, Inc., Mo.Sup., 335 S.W.2d 192, it was held that the evidence presented a jury question as to deceased’s contributory negligence. Plaintiff’s decedent, Melvin Potter, was atop a grain bin where he was required to work in attaching a metal grain spout to the cone of the bin. The lower of the wires over the bin had been tied back by Melvin and his father, they not knowing much about electricity or that the lower wire was harmless. There was testimony that the spout never did touch the upper (charged) wire, that there was an electrical arc from the wire to the tin, and that the Potters, including Melvin, were using caution in attempting to place the tin in the cone of the bin.

In Lebow v. Missouri Public Service Co., Mo.Sup., 270 S.W.2d 713, the court held that the matter of decedent’s negligence was for the jury, saying:

“In the instant case, while deceased had been furnished a ladder and, in effect, warned not to touch the wire with the ladder, he did not voluntarily contact the wire with the ladder. On the contrary, contact resulted from the fact that the ladder had become entangled in tree branches and decedent pulled sufficiently hard to disentangle it, without necessarily knowing what the result would be, and thereby caused the aluminum ladder to unexpectedly fly over his head into the power line.”

In Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960, the facts showed that plaintiff was on top of a building where defendant’s bare, uninsulated wires were in close proximity to him. He observed them, endeavored at all times in his work to keep at a safe distance from the wires and to avoid coming into contact with them. He stood at a distance of 18 inches from them where he “felt sure everything was perfectly safe.” The court held: (

“While it well may be assumed that plaintiff, who apparently is a man of mature years and of average intelligence, knew and appreciated the danger of coming in actual contact with the uninsulated wires if they were carrying a high voltage of electrical current, yet we cannot properly assume from his own testimony, or from any other evidence in the record before us, that plaintiff knew, or reasonably should have known, that the wind was likely to blow the wires across the intervening space of 18 inches and into contact with his body, or that he fully appreciated the danger of the wind blowing the wires * * * 18 inches, or more, against the body of plaintiff, was so obviously glaring and imminent that plaintiff must be held to be conclusively chargeable with full knowledge and appreciation of such danger.”

In Erbes v. Union Electric Company, Mo.Sup., 353 S.W.2d 659, plaintiff was held not to be contributorily negligent as a matter of law, as there was nothing to indicate that when he asked the crane boom operator there involved to give him a “little more slack”, more slack would be given him than required, or so much more as to make it possible for contact to occur between the cable and the high voltage wires, nor that the cable would whip in the air to the extent it would travel in the air 6 to 8 feet and thus contact defendant’s wires.

The last case cited by plaintiff, Foote v. Scott-New Madrid-Mississippi Electric Coop., Mo.App., 359 S.W.2d 40, does not aid him, as the issue there was simply whether defendant electric company could have foreseen and anticipated that decedent would throw a tin can attached to a long copper wire over defendant’s energized top electric wire and thus receive a fatal shock.

Giving to plaintiff the full benefit of his own testimony that he, his foreman and the crane operator looked at the line and didn’t think there was danger; that he could not tell if the wire was insulated; that he was performing his duties in the assigned way, routinely; that he did not voluntarily or intentionally come into contact with the wire; that he had to look down to negotiate the rough ground from the knoll or hill while pulling the cable off its drum by his weight, but considering also that which plaintiff testified to on cross-examination set forth above; — we are of the opinion that plaintiff’s claims must be rejected, and we hold that plaintiff was contributorily negligent as a matter of law in coming into contact with defendant’s high voltage wire.

Plaintiff had knowledge that the steel towers with electric lines on them were there; that -he considered them to carry electricity, and they were hazardous; that the top of the crane boom to which the cable was attached was higher than the lower wire; that he knew the H-beams or pilings were underneath defendant’s electric wires; and that he knew he was walking down the knoll in the direction of the wires.

Furthermore, plaintiff, as he went down the knoll, at no time looked up to see whether the cable at the crane was moving toward the wires, and that there was going to be danger of contacting them.

What was stated in Hamilton v. Laclede Electric Cooperative, Mo.Sup., 294 S.W.2d 11, 17(7), citing from 2 Restatement, Torts, 1251, 1252, Sec. 478, that ■“[wjhen the negligent act of the plaintiff is necessary to make a dangerous situation negligently created by the defendant effective in harm, the plaintiff’s negligence is always a contributory factor in producing his harm and as such prevents him from recovery against the negligent defendant,” is applicable here. Plaintiff, under his own testimony, must be held to knowledge of the dangerous propensities of these wires, .and to the fact that he, himself, deliberately and voluntarily went down the knoll without looking to see if there was danger, and himself brought the cable into contact with the wires. Hamilton v. Laclede Electric Cooperative, supra; 29 C.J.S. Electricity § 66 c, p. 629; 38 Am.Jur. 865, Sec. 189, Negligence ; 34 A.L.R.2d 98. There was nothing in evidence in this case to show that plaintiff’s attention was distracted as he started down the knoll toward the electric wires with the cable in his hand as would excuse him. Nor was there any evidence of any outside force, or the act of a third person, which concurred with the act of plaintiff (and the negligence of defendant) as would bring this case within the rules of some of the cases cited above and relied upon by plaintiff.

Accordingly, the judgment is reversed.

WOLFE, Acting P. J., and J. MORGAN DONELSON, Special Judge, concur.

RUDDY, P. J., and ANDERSON, J., not participating.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    James WAYMIRE, Plaintiff-Respondent, v. Minnie Marie CARTER, Defendant-Appellant.
    No. 31031.
    St. Louis Court of Appeals. Missouri.
    March 19, 1963.

      H. L. C. Weier, Dearing, Richeson & Weier, Hillsboro, for appellant.
    Jeremiah Nixon, Thurman, Nixon & Smith, Hillsboro, for respondent.
   BRADY, Commissioner.

In this negligence action for personal injuries which resulted in a jury verdict in the amount of $15,000.00 for plaintiff, there is little dispute as to the facts. Due to this fact, the appellant’s allegations of error, and the decision reached herein, it will be unnecessary to burden this opinion with a minute recitation of the factual situation. The parties will hereinafter be referred to by their designation in the trial court.

The plaintiff was driving westwardly on a public street in Herculaneum, Missouri, when he observed the defendant coming toward him. At that time, the defendant’s automobile was in the center of the road which was approximately 3½ car widths wide. The plaintiff pulled over to the right-hand edge of the street, stopped as close as he could to the cars already parked there and blew his horn; defendant’s automobile, continuing at an undiminished speed, proceeded toward plaintiff’s truck until defendant was entirely on the plaintiff’s side of the road and hit the plaintiff. The defendant’s testimony was that she was headed eastwardly and that the morning sun, combined with the dew on her windshield, blinded her. The State Highway Trooper called to the scene testified that plaintiff’s truck was completely on his side of the road facing westwardly and, having answered that question, the following questions were asked and answers given:

“Q. Was the Plymouth completely on the wrong side?
“A. The Plymouth was on the same side of the road as the dodge truck, except it was facing east.
“Q. It was headed east?
“A. That’s right.
“Q. Would it be fair to say the the Plymouth was in the wrong lant?, (sic)
“Mr. Weier: Object to that, if the Court please, that calls for a conclusion, on the part of the trooper.
“Q. What is the proper lane for the eastbound traffic?
“Mr. Weier: I object to that too, for the same reason, it’s calling for an opinion here on the part of the trooper . and it isn’t proper.
“The Court: I think he can testify to which lane the traffic should have been traveling.
“Mr. Weier: He’s already described the lane which he found the car in, if the Court please.
“‘The Court: Yes, but I think he can testify to what lane it should be in.
■“Q. Alright, now what lane was the proper lane for the eastbound 58 Plymouth?
“A. As far to the right as possible, there’s no dividing line on this street.”

With regard to his injuries, the disposition of this appeal made herein requires only a slight restatement of that evidence. The plaintiff testified that he was thrown forward against the steering wheel which, in turn, threw him back against the seat and he felt a sharp pain in his lower back from his belt down “ *■ * * just like a knife or something had stuck in there.” From August 21, 1959, until January 14, 1960, the plaintiff was treated by Dr. E. J. Senn. He made approximately 66 visits to Dr. Senn who prescribed medicine for “nerve pull” which the plaintiff took one or two a day as an average. A hard bed was also prescribed and the plaintiff lay on a hot pad “ * * * just as hot as I could bear.” The first treatment or two at Dr. Senn’s office was a heat treatment and after that, ultrasonic sound treatments. A back brace and a knee brace were also prescribed and worn. It was this physician’s opinion that plaintiff was not responding as he should to treatment and he sent plaintiff to Dr. Lottes, an orthopedic surgeon in St. Louis. It is unnecessary to burden this opinion with a full recital of this witness’ testimony as we do not reach the allegation of excessiveness raised by defendant. Dr. Lottes’ diagnosis was that “He has a severe low back sprain with sciatic irritation.” His opinion was that “ * * * he will have some permanent disability” and that the collision caused the plaintiff “ * * * present complaints, pain and disability.”

The plaintiff returned to work on October 5, 1959, and testified that he was in pain and unable to bend, stoop or walk freely. Three merchants to whom he delivered bakery products also testified that the plaintiff limped badly and had difficulty getting on and off the truck, and was restricted in his movements. The plaintiff’s employer testified that the plaintiff “ * * * limps and leans forward to his right” and that he doesn’t get back in off of his route until 5 :30 or 6:00 when he used to get in at 1:00 or 1:30 although he does do the same work.

To rebut this evidence, the defendant introduced motion pictures taken of plaintiff while on his delivery route. These pictures were taken by James Jordan and Carl VanLaaten. Upon cross-examination of Jordan, the following questions were asked and answers given with the objections and comments made as shown:

“Q. Who are you employed by?
“A. The Allen Commercial Service.
“Q. And what is the Allen Commercial Service?
"A. Well, this is the insurance division of the Pinkerton National detective Agency.
“Q. What does the insurance division of the Pinkerton National Agency do?
“A. Well it deals directly with any type of insurance case, I mean for example, investigations, surveillances.
“Q. Is that this type of case, is this a insurance case?
“Mr. Weier: If the Court please, I want to object to any interrogation along this line. It’s an attempt to create prejudice in the minds of the jury. I want to move at this time that the jury be discharged on account of the attempt here, the evident attempt here on the part of the attorney for the plaintiff to interject a false issue in this case.
■“The Court: The motion to discharge the jury will be denied. The objection otherwise is sustained.
“Mr. Weier: I move that the jury be instructed to disregard any of these statements, the testimony that has been given her by this witness, in connection with these last 3 questions.
“The Court: That would be too hot now, I’m not right sure of what you’re moving to.
“Mr. Weier: I withdraw the motion.
“Mr. Nixon: Your Honor, I don’t want to go against the Court’s ruling, is the Court ruling, that I can not interrogate anymore about who employes him?
“The Court: That’s right.
“Mr. Nixon: May I interrogate as to who employes his employer?
“The Court: Who employed his employer ?
“Mr. Nixon: Yes, he works for this * * *
“The Court: Well, if he knows.
“Q. Do you know who employed your employer for you to do this work?
“A. I do now, but I didn’t at the time.
“Q. You do now?
“A. Only through Mr. Weier I do.
“Q. You never knew it before?
“A. No sir.
“Q. How much was charged for making these pictures?
“A. I have no idea.
“Q. Did you submit a charge sheet to your company?
“A. Well, I work directly for my company on an hourly basis, it isn’t a case of job by job basis.
“Q. As far as you’re concerned?
“A. Right.”

Defendant’s allegations of prejudicial error are that the trial court prejudicially erred: 1) in failing to sustain the motion to discharge the jury made during the cross-examination of the witness Jordan; 2) in failing to sustain defendant’s objections to questions propounded to State Trooper Decker; and 3) in the giving of Instruction P-3. The defendant also contends the verdict was excessive and the defendant should have a remittitur of “ * * * at least $10,000.00.”

With respect to defendant’s allegation of prejudicial error resulting from the questioning of the witness Jordan, the plaintiff contends such conduct was approved by this court in Leavitt v. St. Louis Public Service Co., Mo.App, 340 S.W.2d 131. In the Leavitt case, defendant’s counsel developed on direct examination that üne Atkins, who took the movies shown to the jury in that case, was a special investigator but did not inquire as to whom he was employed by or if he was self-employed. Pointing out there'was no question but that Atkins’ employer was interested in the outcome of that case as shown by the record of inquiry made of defendant’s counsel by plaintiff’s counsel out of the hearing of the jury and prior to voir dire, this court held that:

“ * * * As the cases heretofore cited reveal, under the circumstances plaintiff had the right to have the jury know not only that Atkins was employed by Transit Casualty Company, since it affected his credibility and the weight to be given to his testimony, but also the relationship of Transit Casualty Company in the case.” (citing cases)

To the same effect, see Wren v. St. Louis Public Service Co, Mo.App, 355 S.W.2d 365. The distinction between the inquiry in Leavitt and Wren and that in this case is apparent. If by the question,, “Is that this type of case, is this a insurance case?” plaintiff’s counsel sought to show who employed his employer, then there was a proper way to do it. In fact, the transcript shows that after the objection which this question provoked had been ruled upon, plaintiff’s counsel attempted to do that very thing and in a manner that was not objectionable under the factual situation here present. The result was that Jordan stated he did not know who employed his employer, Allen Commercial Service, until after he took the movies. Nevertheless, the questioning on the issue illustrated clearly the ¿cceptable method of attempting to show the connection between Jordan’s employer and the defendant’s insurance company. However, this method was not followed until after the objection to the question “* * * is this a insurance case?” This court cannot agree that the situation in the instant case is governed or controlled by the Leavitt and Wren cases.

However, we cannot sustain defendant’s allegation of prejudicial error. It is to be noted that this question was never answered, the objection was sustained and that defendant’s counsel withdrew his request that the trial court instruct the jury to disregard the question. Therefore, the question presented is whether the asking of this one question, standing alone and unrepeated elsewhere in the proceedings, of itself requires us to rule that the trial court abused its discretion in not declaring a mistrial. Such a ruling would be unwarranted under the circumstances here present. We are not to be understood as requiring defendant’s counsel to wait until the question is answered before interposing his objection; but if the asking of this one question is so prejudicial as to require us to hold it an abuse of discretion not to discharge the jury upon the asking of it, surely it was prejudicial enough to require defendant’s counsel to press his request that the jury be instructed to disregard it. This he did not do and, under these circumstances, we cannot hold it an abuse of discretion not to discharge the jury.

By her second allegation of prejudicial error, the defendant contends that we should reverse this judgment and remand this case due to the trial court’s action in allowing the State Highway Trooper to testify, over objection, what was the proper lane for defendant’s eastbound car. When allowed to answer, the trooper replied “As far to the right as possible, there is no dividing line on this street.” It is obvious that the trooper was relying upon the old statutory rule that a vehicle should be driven as close to the right-hand side of the highway as practicable. Section 304.020(2), RSMo 1949, V.A.M.S., containing such language was repealed in 1953 by the deletion of that section and the enactment of Sections 304.014 and 304.015, RSMo 1959, Laws of Missouri, 1953, p. 587, V.A.M.S. These sections provide that a vehicle shall be driven upon the right half of the roadway with certain exceptions not applicable in this case. This is not prejudicial error. The defendant admitted that she was on the wrong side of the road and explained what caused her to so operate her automobile. A fair reading of this transcript discloses that this matter was not an issue in the trial but was an uncontested and admitted fact all the way through the trial. Accordingly, we find no merit in plaintiff's contention of prejudicial error in this regard.

The result of our ruling on these two allegations of prejudicial error is that we find no error requiring a new trial on the whole case.

Instruction P-3 reads as follows:
“The Court instructs the jury that if you find for the plaintiff under the evidence and other instructions, in estimating and determining the measure of his damages, you should take into consideration, in connection with all the facts and circumstances in evidence, the bodily pain and suffering and mental anguish, if any, endured by him, and resulting from the injuries received, if any; the character and extent of his injuries, if any, and whether they are permanent in their nature; the extent, if any, to which he has been prevented and disabled by reason of such injuries, if any, from working and earning a livelihood for himself; the extent, if any, to which you may reasonably believe from the evidence, if you so believe, he will be disabled during the future of his Ufe by reason of said injuries, if any; his necessary expenses, if any, for medical attention in endeavoring to be cured; and may find for him such sum as, in the judgment of the jury under all the evidence in the case, will reasonable compensate him for the ■ injuries received.” (Emphases supplied.)

Defendant’s contention with regard to the giving of this instruction is that it authorizes an award for double damages. In her motion for new trial, defendant did contend that prejudicial error was present because the instruction listed certain matters for the jury’s consideration and then authorized the jury to find for plaintiff “ * * * such sums as, in the judgment of the jury under all the evidence in the case, will reasonable compensate him for the injuries received.” However, doubtless due to her recognition that such a position cannot be maintained, Moss v. Mindlin’s, Inc., Mo., 301 S.W.2d 761, that is not defendant’s contention in his brief. Neither is the defendant contending the instruction authorizes double damages, because it authorized the jury to consider both permanent injuries and the extent to which plaintiff “has been” prevented and disabled from working and earning a livelihood for himself. The words “has been” refer to the past and this clause of the instruction clearly refers to past loss of earnings. Neither could that contention be sustained for, as pointed out in Moss v. Mindlin’s, Inc., supra, 301 S.W. 2d at 769, the rule in this state is that a permanent injury is a separate element of damage aside from pecuniary loss (see Meierotto v. Thompson, 356 Mo. 32, 201 S. W.2d 161) and, quoting from the Moss case at the citation given above, “ * * * impairment of earning capacity, past or future, is not necessarily included in, nor does it necessarily result from, a permanent injury.”

What defendant does contend, as stated in her motion for new trial and in her brief, is that this instruction is prejudicially erroneous as authorizing double damages because it lists as an element of damage permanent injuries in one clause and then goes on in another clause to allow the jury to consider “ * * ■ * the extent, if any, * * * he will be disabled during the future of his life by reason of said injuries * * *.« It is to be noted the instruction does not limit this disability to working and earning a livelihood, i. e., to future earning power, but contents itself with the words “ -⅝ * * disabled during the future of his life * * This has the effect of resubmitting for the jury’s consideration in awarding damages the same matters covered by the item as to the permanency of the injuries and constitutes reversible error as authorizing double damages.

The plaintiff urges that we follow the authority in this state that where the damages awarded are not excessive and fairly represent the damages shown by the evidence an erroneous or inaccurate or repetitious instruction upon the measure of damages will not necessarily constitute reversible error. Kelsey v. Kelsey, Mo. App., 329 S.W.2d 272; La Plant v. E. I. Du Pont De Nemours & Co., Mo.App., 346 S.W.2d 231 at 244. It should be pointed out that the key word in that rule is “necessarily”. In this case, the wording of this instruction so clearly authorizes a double recovery that we must hold it to be reversible error. Especially is this true in this case where the plaintiff’s own doctor diagnosed plaintiff’s injury as “severe lower back sprain with sciatic irritation.” The plaintiff’s total doctor bill was $328.00, and he returned to his regular job 6 weeks and 2 days after the injury with a loss of $390.00 in wages for that period. Neither are we persuaded otherwise because plaintiff did testify he had a part-time job that he had not been able to work at since the accident with a resultant loss of $2,808.00 in wages up to the date of trial.

We hold that the giving of Instruction P-3 constitutes reversible error for the reasons herein given and accordingly this judgment should be reversed and this cause remanded for new trial upon the issue of damages alone. Due to this holding, we do not reach a consideration of defendant’s contention that this verdict was excessive. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded to the trial court for further proceedings on the issue of damages only.

WOLFE, Acting P. J., and J. MORGAN DONELSON and JACK P. PRITCHARD, Special Judges, concur.

RUDDY, P. J., and ANDERSON, J., not participating.


author: MARSHALL CRAIG, Special Judge.

text:
    DELMAR BANK OF UNIVERSITY CITY, a corporation, (Plaintiff) Appellant, v. Raymond O. DOUGLAS and Violet L. Roehrig, d/b/a Sunset-Grant Realtors, and Merril W. Chrisman and Margie Chrisman, (Defendants) Respondents.
    No. 31069.
    St. Louis Court of Appeals. Missouri.
    March 19, 1963.

      Sheldon D. Grand, Clayton, for appellant.
    Hartwell G. Crain, Clayton, for respondents.
   MARSHALL CRAIG, Special Judge.

The Plaintiff-bank brought its suit against the defendants for recovery of the sum of $541.17 paid by the plaintiff to the defendant on a check, which payment plaintiff claims to have been made through mistake. The parties stipulated the following facts:

“STIPULATION OP FACTS”

“Come now plaintiff and defendants Raymond O. Douglas, Violet L. Roehrig, d/b/a Sunset-Grant Realtors, Merril W. Chris-man, and Margie Chrisman, by their respective attorneys, and stipulate and agree that the following facts are true:

“1. On or about the 9th day of June, 1959, the William L. Cassidy Realty Co. drew its check No. 1726, dated August 1, 1959, upon plaintiff-bank, made payable to ‘Sunset Grant Realty Co., Agents for Mer-ril W. Chrisman and Margie Chrisman, his wife,’ in the amount of $541.17, the original of said check being attached hereto and made a part hereof.

“2. Said check was deposited for and on behalf of defendants in the Citizen’s National Bank of Maplewood on June 10, 1959, and was honored by and paid out upon plaintiff-bank on or about June 12, 1959.

“3. On or about July 2, 1959, the maker of said check, William L. Cassidy Realty Co., ordered plaintiff to stop payment upon said check, the original of said stop payment order being attached hereto and made a part hereof.

“4. Neither plaintiff nor defendants were aware of the date on said check at the time when it was presented and honored, as aforesaid, but if defendants had been aware of said date said check would not have been accepted by defendants, and if plaintiff had been aware of said date it would not have been honored, until the date thereof.

“5. Defendants have failed and refused, and still fail and refuse, though often requested to do so, to pay to plaintiff the sum of $541.17.”

The trial court entered its judgment in favor of the defendants, and plaintiff-bank filed its motion for a new trial on the ground that “said verdict and judgment are against the law and the evidence and the law under the evidence.” The motion for a new trial having been overruled, plaintiff-bank filed its appeal. The appellant suggests that the judgment should be reversed because (1) The court erred in refusing to render judgment in favor of plaintiff-appellant, for when money is paid under a mutual mistake of fact, that money can be recovered and (2) The Court erred in refusing to render judgment and verdict for plaintiff-appellant since appellant could not lawfully charge the maker of the check with the amount paid out.

The parties, in the agreed statement of facts, confine the issue to a determination of the respective rights where there has been a mutual mistake of fact. The mistake was one that either or both parties could have easily discovered by observing the check. The date clearly appeared thereon. At the time of the filing of the suit the appellant had paid out the money and was not, it claimed, in a position to recover from the maker of the check by reason of the fact that the maker had, before the date shown on the check, that is August 1, 1959, ordered payment stopped on the check.

The Missouri Courts recognize the rule that money paid to another by reason of the existence of a mistake of fact, which would entitle the other to the money, and which the payor would not have paid had the true facts been known, may be recovered, if the payment has not brought about a change in the position of the one receiving the money so that it would be unjust to require repayment. This general principle of law is well stated in Section 187, Volume 40 American Jurisprudence, at page 844, under the general subject of payment, as follows:

“It is a firmly established general rule that money paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, which would not have been paid if it had been known to the payor that the fact was otherwise, may be recovered, provided the payment has not caused such a change in the position of the payee that it would be unjust to require a refund. The ground on which the rule rests is that money paid through misapprehension of facts belongs, in equity and good conscience, to the person who paid it.”

The Missouri Supreme Court, in the case of American Brewing Co. v. City of St. Louis (1905), 187 Mo. 367, 86 S.W. 129, had before it the question as to whether or not the plaintiff could recover where it is alleged that plaintiff had been required to pay a greater amount than was shown to be required by an ordinance. The plaintiff’s contention was that it had paid an excessive amount through mistake. The Court, in 86 S.W. 129, l. c. 131, stated:

“It is a well-settled rule of law that money paid through a mistake of fact may be recovered in an action for that purpose. 15 Am. & Eng.Enc.Law (2d Ed.) p. 1103, and cases cited. But this rule is subject to the qualification that the party paying must make the payment under a bona fide belief that the money is due. For if he did not believe he owed the money at the time he paid it, he can not recover it. * * * But in all such cases the mistake must be one of fact, and not of law, for all persons are deemed to have notice of the law. * * * The rule stated has been uniformly followed in this state in reference to all kinds of payments, including taxes, licenses, and claims; and the doctrine is firmly established that payments made with a full knowledge of all the facts constitute voluntary payments, and cannot be recovered, and that mistake or ignorance of law gives no right to recover.”

In the case of Jones v. Miners’ & Merchants’ Bank, 144 Mo.App. 428, 128 S.W. 829, the Springfield Court of Appeals was called upon to decide a case where a payment of a forged note was made under the mistaken belief that it was genuine, and after payment it was discovered it was forgery. The Court, in 128 S.W. 829, l. c. 830, stated:

“It is clear in this case that the money paid by plaintiff to defendant was paid under the mistaken belief that he was paying a genuine note, and were this forged instrument, in form, not a negotiable note, there could be no question that plaintiff could recover, for the general rule is that money paid without consideration and under mistake as to the facts may be recovered.”

The Kansas City Court of Appeals, 1926, in the case of Bank of Ethel v. Colmen, Mo. App., 290 S.W. 1022, had before it the question as to a settlement based on a statement, which statement it was alleged was based on a mutual mistake. The Court held that the testimony supported the contention that there was a mutual mistake. In the holding, the Court stated that money paid under a mutual mistake can be recovered. The Court determined that the parties were attempting to arrive at a correct amount to be paid, and there was not a clear determination between the parties as to the correct amount, and that “[m]oney paid under such circumstances has been held to be money paid under a mistake of fact, and may be recovered.”

In the case of Roush v. Hussey Lumber Co., Mo.App., 27 SW.2d 1033, an action had been brought to recover a balance alleged to be due on a parole contract for manufacturing and sawing certain ties and lumber. The defendant contended that it had overpaid plaintiff under the terms of their agreement, and contended that by reason of the overpayment based on a mistake of fact it should not be forced to pay the full amount since the figures were based on an estimate. The Court in 27 S.W.2d 1033, l. c. 1034, stated the principle of law as follows:

“Without going further into the facts, it seems to us a clear issue was raised for the jury upon the question as to whether or not plaintiff had been overpaid. The rule contended for by defendant to the effect that where money is paid by mistake, although there was negligence on the part of the person making the payment, it may be recovered back, is, of course, well founded. It is subject to the exception that payment cannot be recalled when the position of the person to whom the payment was made has been changed to his prejudice.”

In the case now before the Court, there is no argument about the facts. The parties agree that there was a mutual mistake and that if defendants had been aware of the mistake (the date on the check) they would not have accepted the check and if the plaintiff had been aware of said mistake, it would not have honored the check until its actual date. The plaintiff-bank believed that the money was due on the check and honored it. The bank did not notice the date and in so doing was careless, if not negligent. However, as is stated in the Roush case, supra, even negligence will not bar the bank from applying the rule that is recognized by the Missouri Courts that where there has been a mutual mistake, the money paid out may be recovered. The events that took place in this case were not of such nature that it would be unjust to permit the plaintiff to recover its money. Under the facts peculiar to this case, plaintiff is entitled to be put in the position it would have been in had there been no mistake of fact. Under the agreed statement of fact, the position of the defendants was not altered to their prejudice and it would not be unjust to require a refund. As a result of the peculiar facts in this case, the plaintiff should recover the money it paid out and the judgment of the trial court should be reversed.

For the reasons stated, the judgment of the lower court is reversed and judgment ordered entered for the plaintiff and against the defendants in the sum of $541.17.

ANDERSON, P. J., and WILLIAM M. KIMBERLIN, Special Judge, concur.


author: J. MORGAN DONELSON, Special Judge.

text:
    Vernon Howard DAVIS, Employee, Respondent, v. DAY-BRITE LIGHTING, INCORPORATED, Employer, Appellant.
    No. 31254.
    St. Louis Court of Appeals. Missouri.
    March 19, 1963.
    Renderer & Nolde, St. Louis, for appellant.
    Eugene M. Munger, St. Louis, for respondent.
   J. MORGAN DONELSON, Special Judge.

This is a Workmen’s Compensation case where the employer, Day-Brite Lighting, Incorporated, appeals from the Circuit Court judgment affirming an award of the Industrial Commission in favor of the employee, Vernon Howard Davis.

Before the Referee it was admitted that Vernon Howard Davis on February 8„ 1960, the date of the alleged accident and injury, was an employee of the Day-Brite Lighting, Incorporated; that both the employee and employer were subject to the provisions of the Missouri Workmen’s Compensation Law; that the employee’s claim was filed within the time prescribed by law; and that the employee’s average weekly wage was in excess of $67.50.

The employee, at the time of hearing before the Referee in December, 1960, was thirty-two years old. He had been an employee of Day-Brite for approximately nine or ten years. At the time of the alleged accident and injury he was employed as a ¡helper on a blanking machine or punch press, and worked the three-to-eleven shift. "When necessary he turned sheets of metal which he helped insert or feed into the •press. These sheets of metal were approximately 49" x 60", 16 or 20 gauge, and •each weighed 37 or 47 pounds. He put oil •on some of the sheets with a roller to keep from “shearing the die”. The sheets were turned over to apply the oil. Some of the sheets were curled on one end, and it was necessary to turn them before they were inserted in the press. After the sheets were ■oiled and turned, Everett Sills, a co-worker who worked on the same machine, helped him put them in the press. The turning .and oiling of these metal sheets were the ■duties of claimant employee. This was his ■regular job, and he had been doing it for quite some time. He stated that oil from the roller used on the sheets could and sometimes did drip off the side or edges of the sheets to the floor, and dryers would be put down to correct the condition.

Davis stated the accident and injury occurred as he was turning a sheet of metal. He had it up about his head, his foot slipped in some oil on the floor, and he hurt his back. He told co-worker Sills at the time of the injury, “I hurt my back”. Claude Williams, his foreman, was called over and he asked Davis what happened. Davis testified he told him, “I pulled something in my back. I said there was a sharp pain and I didn’t know what happened — I still don’t know because I’m not a doctor — and he said,, you probably just pulled a muscle.” There was no eyewitness to the occurrence, as coworker Sills had just left the machine for three to five minutes. When Sills came back claimant employee was sitting down holding his head in one hand and back in the other. This happened about 9:30 or 10:00 o’clock at night. Claimant testified that he continued after a time to work while sitting on a stool. He helped to put the remainder of ten to twelve sheets of metal through the press before it was time to quit work. These remaining sheets of metal were not turned or oiled. He stated that he continued to have very sharp pains in the low back and could just barely walk. He drove home that night and his wife put a heat pad on his back. He further stated that he could not get out of bed for the next six days without assistance. The next day after the accident he visited a Dr. Guerra, a physician of his own choice, for treatment. The following Monday he went to the plant of employer, talked to Jerry Borina, the company nurse, who sent him to Dr. Louis A. Reuter, the employer’s doctor.

Dr. Reuter first examined claimant on February 16, 1960. After the history was taken and examination completed, he determined that claimant had sustained a strain of the soft tissues of the low back with restriction of motion. From X-rays the doctor made a further finding that a slight spondylolisthesis of the fifth lumbar vertebra existed, and in his opinion it was congenital in nature. A series of diathermy treatments were given to claimant. When the muscle restrictions did not clear up, he advised manipulation of the back under general anesthetic. On March 18, claimant was taken to St. John’s Hospital, and his back was manipulated as suggested. He was seen two or three times a week thereafter until the muscle guard and spasticity gradually improved. He was released on September 6, 1960. It was the doctor’s opinion that there was no aggravation of the previous congenital spondylolisthesis condition.

Dr. Lee T. Ford, M. D., testified that he examined the claimant employee on March 22, 1960, at the request of claimant’s attorney, for the purpose of evaluation, recommendation of treatment, and a report. The report was made and introduced in evidence before the Referee. The history given to the doctor by claimant was that he injured his back at work on the date stated while turning a piece of sheet metal over. He stated that he pulled something out of place in his lower back, and this caused him to fall to his knee. He was able to finish working his shift, but the next day he could hardly get out of bed. He detailed to him that he had seen Dr. Guerra, who gave him an injection of medicine in his arm. He called the company nurse and was referred to the company doctor. He remained off work until Monday, and then returned to work. He was given daily heat treatments.

The matter of the hospitalization under a general anesthetic for back manipulation was related to Dr. Ford. Claimant complained of continued pain in the low back which now seemed to be generalized and involved also his lower limbs, his feet, his arms, and all over his body. He said the pain in his left hip feels like a knife. Coughing and sneezing aggravate the pain. It hurt him to move. There is pain present both day and night. He was taking pain pills but had not worn a back support to that time. From his examination the doctor further found that claimant had moderate limitation of the neck motions, complaining of pain when he moved his head in all directions. He complained of pain when traction was applied to his head. His neck was tender, diffusely. He found he had a full range of motions in the shoulder, but they cause pain in the neck and lumbar area. The back motions were limited moderately in all directions. He found no neurological deficit in either lower extremity; his ankle and knee jerks were equal. Straight leg raising was painful at ninety degrees on the right and eighty degrees on the left side. There was pain at forty-five degrees on either side when the knee and hip were flexed. He found the entire lumbar spine was tender, but the lower extremities were not tender. The right lower extremity is one-fourth inch shorter than the left. X-rays of lumbo-sacral spine revealed a spon-dylolisthesis of the fifth lumbar of the first degree. The vertebra had slipped or displaced forward less than one-third of diameter of the vertebra. The lumbosacral disc space was narrowed slightly.

The doctor was of the opinion that the symptoms of back pain and sacroiliac pain had resulted from aggravation of a pre-ex-isting spondylolisthesis of the fifth lumbar vertebra accompanied by functional overlay. The prescribed treatment was a lum-bosacral belt as a back support and two medications, one for pain and one to help nervousness and to relax muscles. Dr. Ford saw claimant again on March 31, 1960, and found he had obtained and was wearing the belt prescribed, which helped, but he still had back pain, pain in the left hip, with occasional numbness and tingling of the left foot. He was of the opinion that claimant could do bending, lifting, twisting, as the normal ordinary man can do, but he would have pain when he did such things. He was further of the opinion that he would have some permanent disability. Dr. Ford then referred claimant to Dr. Robert Lam, a neuropsychiatrist, for evaluation and recommendation for treatment.

The medical report of Dr. Robert Lam was introduced before the Referee, but upon objection of employer it was withdrawn from the record and consideration. Dr. Lam was to be called as a witness, but this was never done. Claimant testified that he was not treated by Dr. Lam.

Dr. H. R. McCarroll examined claimant on July 25, 1960, and his report was received in evidence by the Referee without objection. The history given Dr. McCarroll was very similar to that given to Dr. Ford. Claimant’s complaints were much the same. The doctor found tenderness over the entire lumbar spine and the body of the sacrum. Claimant’s back motions were normal, but he complained of intense pain and marked resistance is felt with any attempted passive motion. The doctor also found a minimal displacement in the lumbo-sacral area suggestive of a spondylolisthesis, which in his opinion could explain claimant’s pain. Conservative type of treatment was suggested, if claimant could do some form of work; otherwise the alternative was a lumbosacral fusion.

On October 7, 1960, claimant was again examined by Dr. Ford. On the objection of the employer that claimant had not complied with Section 287.210 RSMo 1959, V.A.M.S. requiring a complete medical report be furnished to employer, the report of Dr. Ford dated October 11, 1960 was not admitted by the Referee. However, over the objection of employer the doctor testified that this claimant had twenty to twenty-five percent permanent disability as a whole. He further stated that claimant’s condition, when examined in October, was essentially the same as it was when he examined him in March, except that claimant had developed a hypesthesis involving the left leg and foot, which he attributed to a functional overlay. The commission in its finding of facts stated that it disregarded this testimony.

Claimant lost five days’ work immediately after the accident. He was not reassigned to the same work, but was assigned to work on a small press, which was described as lighter work. He said he was unable to do the same type of work he did before the accident because of the injury to his back. He quit work about ten or twelve weeks before the Referee’s hearing, which was the latter part of December, 1960. He testified further that he quit because he could not do his usual work and because of the pain in his back. Co-worker Sills confirmed that claimant did not walk as straight as he normally did, that he continued to complain to others of pain in his back after he returned to work. Nurse Jerry Borina stated she also noticed claimant thereafter and noticed he had a different way of walking; that he held himself stiff.

The Commission found that the employee sustained an accident, which consisted of the slipping of claimant’s foot in oil while he was lifting a sheet of metal to turn it, arising out of and in the course of his employment with employer on February 8, 1960, which resulted in an injury to his back and spine; that the employee did in fact have some previous disability and possibly incurred further disability from a subsequent accident referred to in the evidence occurring on or about May 20, 1960; but they determined that the permanent partial disability of the body as a whole, referable solely to the accident of February 8, 1960, equals 15 percent of the body as a whole (including any injury to the nervous system or psychiatric overlay that might have resulted therefrom). The Final Award was for a total sum of $2,438.58, which was for %ths of a week’s Healing Period at $45.00 per week, and 60 weeks’ permanent partial disability for 15 percent permanent partial disability of the body as a whole, referable to back and spine.

On this appeal employer contends that there was no accident to employee; that there is no causal connection between the accident, if any, and the injury resulting in permanent partial disability; that the award is based upon speculation, surmise and conjecture; and therefore the findings and award by the Commission are not supported by competent and substantial evidence.

It is the duty of this Court to determine if there was competent and substantial evidence upon the whole record to support the findings of the Industrial Commission and the action of the Circuit Court in affirming the award granted to employee by the Commission. The award cannot be based on speculation, surmise and conjecture. These guides have been well established by the Supreme Court in Banc. Constitution of Missouri, Article V, Section 22, V.A.M.S.; Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; and this Court cannot substitute its own judgment on the evidence for that of the Commission. Ossery v. Burger-Baird Engraving Co., Mo., 256 S.W.2d 805; Cole v. Best Motor Lines, Mo.App., 303 S.W.2d 170.

We find that the evidence outlined above in this opinion is sufficient to sustain the finding that there was an accident arising out of and in the course of claimant’s employment by Day-Brite Lighting, Incorporated. Employer makes much of the point that claimant did not tell others, such as his co-worker Sills, the company nurse, and the doctors that “his foot slipped in oil”. Claimant, as shown above, did testify that his foot slipped in oil while turning sheets of metal and he was injured. Claimant told all these persons he was injured turning the sheets of metal. The fact that he may not have also told them that he slipped in oil perhaps would go to the weight to be given to his testimony and the credibility thereof, but these issues have been resolved against employer, and we believe rightly so. Gordon v. Chevrolet-Shell Division of General Motors Corp., Mo.App., 269 S.W.2d 163; Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136.

The employer’s complaint of causal connection to the injury of February 8, 1960, deals primarily with the issue of a second accident to claimant on May 20, 1960, and of evidence to support the finding of permanent partial disability. Evidence about this second injury was largely excluded on objection of the employer. The doctors’ testimony, reports, and claimant’s own testimony about his condition prior to and after the above dates, which are set forth above, are sufficient to support a finding against employer on these points, particularly in view of the Commission award, which specifically considered these issues and made findings thereon. The courts have repeatedly said that the extent and percentage of disability is a finding of fact within the special province of the Commission to determine. The evidence outlined above supports the findings of the Commission and the award. Barron v. Mississippi Lime Company of Missouri, Mo.App., 285 S.W.2d 46; Hammett v. Nooter Corp., Mo. App., 264 S.W.2d 915; Garrison v. U. S. Cartridge Co., Mo.App., 197 S.W.2d 675.

In our opinion, there was competent and substantial evidence upon the whole record of this case to support the findings and award of the Industrial Commission, and it follows that the judgment of the Circuit Court affirming the award of the Commission should in turn be affirmed by this Court. It is so ordered.

WOLFE, Acting P. J., and JACK P. PRITCHARD, Special Judge, concur.

ANDERSON and RUDDY, JJ., not participating.


author: BARROW, Justice.

text:
    Martin J. GILLMAN, Appellant, v. Marion L. MARTIN et al., Appellees.
    No. 14064.
    Court of Civil Appeals of Texas. San Antonio.
    March 6, 1963.
    Rehearing Denied April 3, 1963.
    Dibrell, Gardner & Dotson, San Antonio, for appellant.
    Trueheart, McMillan & Russell, San Antonio, for appellees.
   BARROW, Justice.

Appellant, Martin J. Gillman, brought a trespass to try title action against appellees, Marion L. Martin et al., for title and possession, as well as for damages for withholding possession, of the mineral leasehold estate in seven tracts of land situated in Bexar County, Texas. Martin filed a cross-action to remove any cloud cast upon this mineral estate by a written assignment from Martin to Gillman. The legal question presented is whether Gillman, the assignee under the assignment from Martin, is prohibited by equity from claiming under the assignment because of his subsequent oral agreement cancelling the assignment, and his re-delivery of the unrecorded assignment to Martin. After a non-jury trial, judgment was rendered for Martin, cancelling the written assignment and removing any cloud cast by same upon the title of Martin.

The trial court made findings of fact: That a few days after Martin and Gillman entered into the assignment agreement, which was executed on April 25, 1961, and before Gillman went into possession, they mutually agreed to cancel it. Gillman then delivered the original, and purportedly all executed copies, of the assignment to Martin. In reliance on this redelivery, Martin paid third parties, who had financed Gill-man, the sum of $1,250, and spent approximately $7,000.00 on the leases under the new agreement with Gillman. Gillman informed Martin, and Martin believed, that all copies of the assignment were returned to him with the original, and expended the above sums of money in reliance on this reconveyance. The trial court concluded that the assignment was mutually terminated and title reinvested in Martin, who had maintained continuous possession, paid full consideration and made valuable improvements on the land.

Gillman challenges the competency of the evidence upon which these findings are based. Prior to April 25, 1961, Martin owned several marginal oil wells on the leases involved herein and Gillman proposed to increase their production by a chemical process. The assignment agreement was executed to carry out this scheme. Martin testified that a few days thereafter they mutually agreed to terminate this assignment agreement and enter into a new agreement whereby Martin would pay all expenses and they would divide the increased production. He testified that Gillman then redelivered the unrecorded original assignment, together with several copies, which Gillman assured Martin were all of the copies. To restore the parties to their original position, Martin then paid a third party, White, $1250.00 for money White had given Gillman. Gillman subsequently used his chemical process on the marginal wells for a period of about sixty days, during which time Martin expended over $7,000.00 under the new agreement. The production decreased, however, and Martin determined to terminate this agreement. After Martin terminated the work, Gillman, on June 29, 1961, produced another copy of the assignment, recorded same and filed this suit. Martin testified, and he was corroborated by two other witnesses, that he had at all times retained possession of the premises. Gillman asserts that this evidence of oral cancellation of the written assignment was improper under the statute of frauds and the statute of conveyances, and therefore the judgment is without support in the evidence.

The general rule is that a conveyance of real estate must be in writing and that one who takes property by an oral conveyance, however innocent, is charged with knowing that he can not do so. Art. 1288, Vernon’s Ann.Civ.Stats. Also, the Statute of Frauds, Art. 3995, Vernon’s Ann. Civ.Stats., prohibits an action upon an oral promise or agreement for the lease of real estate for a longer term than one year. There are exceptions to this general rule which have been clearly recognized by the Courts of this State. Martin here relies upon the exception which applies when a grantee orally redelivers his unrecorded deed, which exception was established in Cooper v. Hinman, Tex.Com.App., 235 S. W. 564, and re-affirmed by the Supreme Court in Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286.

In Cooper v. Hinman, supra, Wagoner conveyed the title to 50 acres of land to Hinman by warranty deed in 1915. Hin-man and his wife went into immediate possession and were occupying the land as their homestead when suit was filed about two years later. Hinman did not make the payment required by a lien note, and orally agreed to return the land to Wagoner for cancellation of the note and $100.00 cash. The consideration was paid and the unrecorded deed was returned to Wagoner for destruction. Wagoner then conveyed to Cooper, who brought the suit. The Commission of Appeals recognized the above stated general rule prohibiting oral conveyances, but held that the grantee in an unrecorded deed, who returns the instrument to the grantor under an oral agreement to reinvest title in grantor, is estopped to assert title under the returned deed. This exception was recognized although possession had remained in the Hinmans.

In Cowden v. Bell, supra, the Supreme Court expressly recognized this exception, although placing it upon equitable grounds rather than upon estoppel. Mr. Justice Garwood said:

“While the broader implications of Cooper v. Hinman are discussed at the end of this opinion, we, too, prefer to explain it on grounds other than the somewhat technical concept of estoppel of a grantee for having voluntarily removed the best evidence of his deed. A more practical explanation of the result would be that referred to in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1117, 15 A.L.R. 216, as ‘a further strong reason’ for the requirement of transfer of possession in cases of alleged parol sales of land, to wit, ‘that without it the existence of the contract rests altogether in parol evidence, * * *. If, however, the purchaser be let into possession, there is furnished by an affirmative act of the owner himself at least a corroborative fact that the contract was actually made.’ The act of an owner in returning, destroying or defacing his unrecorded deed — like the fact of transfer of possession — is ‘a corroborative fact’ indicating that the resale, resting otherwise on merely oral proof, actually occurred. The ‘corroborative fact’ idea appears to be quite similar to what we find in some of our decisions, which decline to avoid the statute on the ground of ‘performance’ consisting of facts which the court describes as not ‘referable to’ the alleged parol contract. Francis v. Thomas, 129 Tex. 579, 106 S.W.2d 257; Chevalier v. Lane’s, Inc., 147 Tex. 106, 213 S.W. 2d 530, 6 A.L.R.2d 1045.”

The Supreme Court further held that although the exception recognized in Cooper v. Hinman appeared to be at odds with the basic doctrine of Hooks v. Bridgewater in that an equitable title was held to pass by the parol reconveyance without even a transfer of possession, still less the making of improvements by the revendee, or any conspicuous equivalent of the latter, the exception does coincide with the Hooks v. Bridgewater doctrine to the extent that the actual return of the deed affords substantial corroboration of the agreement of recon-veyance. The Supreme Court thus held that the rule of Cooper v. Hinman properly stands as an exception.

In our opinion, the facts in this case fall within the exception established by Cooper v. Hinman, supra. There was a re-delivery to Martin by Gillman of the unrecorded assignment, for a valuable consideration, with the mutual agreement that same was can-celled. One additional factor not present in Cooper v. Hinman, is the undisturbed possession of the premises at all times by Martin.

The judgment of the trial court is affirmed.


text:
    P. R. LACKEY, Appellant, v. Leslie B. PERRY, Appellee.
    No. 14061.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 27, 1963.
    Rehearing Denied March 27, 1903.

      Alfred M. Scott, Austin (on appeal only), W. W. Palmer, San Antonio, for appellant.
    Richard Harris, Stahl & Sohn, San Antonio, for appellee.
   BARROW, Justice.

P. R. Lackey, hereinafter referred to as defendant, appeals from a judgment entered on a jury verdict in a tort suit for damages brought by Leslie B. Perry, individually and as next friend of his minor daughter, Leslie M. Perry. Perry is hereinafter referred to as plaintiff. On April 3, 1960, Leslie M. Perry, then seventeen years of age, was injured in a fall from a horse which had been rented from defendant’s public riding stable. There is considerable confusion in the record as to which horse she was riding at the time of the accident. This confusion is immaterial, however, since it is undisputed that she was riding a horse which had been rented from defendant’s stable, and it is further undisputed that she was riding a different horse than the one rented to her by defendant’s employees. We are not deciding a case in which injury is claimed because of some trait, condition or propensity of the horse. Rather, liability is predicated upon the negligence of an employee of defendant’s stable in improperly saddling the horse, which caused the saddle to slip.

Defendant was the operator of a livery stable which rented horses to the general public at an hourly rate. On April 3, 1960, Leslie M. Perry and her boy friend, James Boutot, rented two horses from defendant’s stable and paid an hour’s rent. After an hour’s ride on a public bridal path, they returned these horses, and, upon request and payment of another hour’s rent, were given two fresh mounts. Miss Perry testified that the second horse rented was saddled with an English type saddle rather than a western stock saddle, which she preferred and requested. Miss Perry and Boutot were joined, during the second hour, by another rider, James L. Jackson, whose mount was saddled with a western stock saddle. After they left the stable, and unknown to defendant or any of his employees, Jackson and Miss Perry traded mounts so that she could use the western saddle. Shortly after being helped on Jackson’s horse, the saddle started slipping and the horse bolted. Miss Perry was unable to maintain her balance when the saddle turned under her. She was dragged along the ground by the running horse and sustained the injuries sued on herein. All of the horses rented by the stable were saddled by defendant’s employees and all employees testified that it was dangerous to the rider when the saddle was improperly secured. Jackson testified that he had difficulty with the saddle slipping before exchanging horses, and that he had taken the horse back to the stable, and was assured by one of defendant’s employees that the saddle was properly mounted. Jackson and Miss Perry both testified that the saddle slipped and turned under before she fell from the horse.

Defendant admitted that he knew riders frequently traded horses after they were out on the trail and that his employees were instructed to issue instructions prohibiting the trading of horses, as the stable employees tried to match the particular rider’s ability with the traits of a horse. Miss Perry denied that she received instructions not to exchange horses with other riders.

The jury found: (1) the saddle on the last horse ridden by Miss Perry slipped; (2) such slipping was the result of the manner in which the horse was saddled; (3) the horse was negligently saddled; (4) such negligence was a proximate cause of the injuries received by Miss Perry; (5) she received no instruction not to exchange horses with anyone; (8) Jackson discovered the saddle on his horse was loose prior to the time he exchanged horses with Miss Perry; (9) after such discovery, Jackson did not fail to report such loose condition to one of defendant’s employees. Issues Nos. 6, 7, 10, 11 and 12 were defensive issues, which were conditionally submitted and not answered, under the instructions of the court. Issues 13 and 14 related to damages.

Defendant’s first five points are too general to comply with the briefing rules required by Rule 418, Texas Rules of Civil Procedure. Points which complain of the trial court’s action in overruling defendant’s motion for instructed verdict, motion for judgment notwithstanding the verdict, and motion for new trial are insufficient to direct the attention of the Court to the error relied upon. Missouri-Kansas-Texas R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W. 909, writ ref., n. r. e. We are required, however, to look to the statement and argument under these points in order to test their sufficiency. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478. It is seen, from the statement and argument under these points, that defendant asserts that Miss Perry was a trespasser on the horse she obtained in the exchange with Jackson, and therefore defendant owed no duty to her other than not to injure her intentionally. Although the rule in this State is that a bailor for hire is not an insurer of the fitness of the subject of the bailment, he is liable for personal injuries to, or the death of, the bailee or third persons proximately resulting from the dangerous or defective condition of the chattel while it is being used for the purpose known by the bailor to be intended, where the bailor has not used reasonable care to see that the chattel, as of the time of its letting, was free from any defects or weakness rendering it unfit for its known use, unless the defect was known or was obvious to the person injured or killed so that the person could have avoided injury. Sturtevant v. Pagel, 134 Tex. 46, 130 S.W.2d 1017; Continental Bus System, Inc. v. Toombs, Tex. Civ.App., 325 S.W.2d 153, writ ref. n. r. e.; Nesmith v. Magnolia Petroleum Co., Tex. Civ.App., 82 S.W.2d 721, no writ history; Vol. 2, Restatement of the Law of Torts, § 388; 8 Tex.Jur.2d, Bailment, § 19; 131 A.L.R. 845. The evidence is undisputed that defendant’s employees knew it was dangerous to the rider if the horse was improperly saddled, and the evidence supports the jury finding that, although defendant had notice that riders occasionally traded horses, Miss Perry was not instructed not to exchange. There is no contention that the traits or propensities of the horse caused the injuries. Under all these facts and findings, defendant is responsible to plaintiff for the negligence of his employees in improperly saddling the horse Miss Perry was riding.

Defendant asserts that, in any event, Miss Perry assumed any risk in exchanging horses and is prohibited from recovery under the maxim, volenti non fit in-juria. We do not believe she assumed the risk that the horse was not properly saddled. We have been unable to find a Texas authority on this proposition, but the case of Liossis v. Cavalry Riding Academy, 86 Ohio App. 334, 87 N.E.2d 266, is directly in point. In that case the Ohio Court of Appeals held that the rider of a hired horse does not assume the risk of an improper saddling of the animal, of which the rider has no knowledge. The Texas rule concerning voluntary exposure to risk requires a voluntary exposure to a danger which the plaintiff either does or should fully realize and appreciate. Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449; McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391. The facts in our case do not establish, as a matter of law, such a voluntary exposure to the danger of a horse being improperly saddled.

We have considered all the evidence and find that the answers of the jury on the negligence and contributory negligence issues are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Defendant asserts that the verdict of the jury on the damage issue is so excessive and exorbitant as to have been obviously induced by prejudice or some other improper emotion. The jury found that the sum of $15,000.00 would reasonably compensate Miss Perry for her physical pain and mental suffering, including embarrassment for her disfigurement, up to the time of trial and in the future. The jury was also permitted to consider impaired earning capacity. This issue and the instructions under it were submitted without objection. Miss Perry testified that when she fell her left foot caught in the stirrup and she was dragged on the rocks for some distance and was badly skinned all over her body; the femur on her left leg was broken; she was confined in the hospital for eleven days, during which time an eighteen-inch pin was surgically inserted in her leg; she was confined to her home for an additional three months; she was required to use crutches and a cane up until Christmas of 1960; in 1961 she was again hospitalized for three days and the pin was surgically removed; she testified that she suffered very severe pain and that at the time of the trial, which was about two years from the time of the accident, she still suffered pain and was unable to use the leg for much physical activity without its swelling and hurting. She has been restricted in certain physical activities and sports she enjoyed prior to the accident. She has been employed as a secretary from Christmas, 1960, to the dale of trial. She has a permanent scar about fourteen inches long on her left thigh, which prevents her from modeling hosiery as she did before the accident. She was corroborated in all the foregoing by a medical doctor, who testified she had probably made maximum recovery and her present condition would be permanent.

The rule to be applied by this Court, as set forth by an unbroken line of decisions, has been stated in 17 Tex.Jur.2d, Damages, § 335, as follows:

“It is a well settled general rule that where the law furnishes no legal measure of damages, and they are unliqui-dated, the amount to be awarded rests largely in the discretion of the jury; and unless the award is so large as to indicate that it is the result of passion, prejudice or corruption, or that the evidence has been disregarded, their verdict is conclusive and will not be set aside as excessive, either by the trial court or on appeal.”

There is nothing pointed out by defendant, other than the size of the verdict, to indicate any improper motives on the part of the jury in finding this sum. There is no question but that the jury awarded very substantial damages for the injuries sued on, but we have found nothing in the record to indicate that the jury was guided by any motive other than a conscientious consideration of the evidence and the instructions of the court. We overrule defendant’s points concerning excessiveness of verdict.

Defendant complains of the refusal of the trial court to permit defendant to reopen his case and read a portion of plaintiff’s original petition, wherein he complained that the horse was wild and that this caused the accident. The bill of exception shows that both parties had rested their case about noon on the day preceding arguments to the jury except for medical testimony, and that after the medical testimony was introduced, they both closed. This request to reopen .came just as the court was ready to read the charge to the jury. The petition would have been cumulative of the matters previously developed on cross-examination of Miss Perry. The question of reopening the case and hearing additional testimony from either or both parties is left to the discretion of the trial court. Rule 270, T.R.C.P.; Lubbering v. Ellison, Tex. Civ.App., 342 S.W.2d 796, no writ history. This discretion should be liberally exercised in the interest of permitting both sides to fully develop the case in the interest of justice. We cannot say from this record that the refusal of the trial court constituted an abuse of discretion.

The trial court did not err in refusing to submit defendant’s requested issue as to whether or not Miss Perry was negligent in riding the last horse without allowing the defendant’s agents an opportunity to inspect the riding gear before she mounted the horse. This issue was not raised by proper pleadings, and, in any event, is a shade of his defensive issue No. 6, inquiring as to whether or not Miss Perry was negligent in exchanging horses. Defendant did not object to the conditional submission of his defensive issues and thus acquiesced in this manner of submitting same. He cannot now complain of this form of submission. Rule 272, T.R.C.P. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985; Missouri Pacific R. Co. v. Randall, Tex.Civ.App., 347 S.W.2d 658, writ ref., n. r. e.

This suit was brought by Leslie B. Perry to recover medical expenses incurred by him in treatment of his minor daughter and also as her next friend to recover her damages. The judgment erroneously permitted all the recovery to be in his individual name. The judgment of the trial court is reformed so that Leslie B. Perry will recover the sum of $730.00, and Leslie M. Perry, a minor, will recover the sum of $15,000.00, to be paid into the registry of the court, as required by Art. 1994, Vernon’s Ann.Civ.Stats. In all other respects the judgment is affirmed.