author: HUNTER, Presiding Judge.

text:
    Ethel BRADY, Plaintiff-Respondent, v. BLACK AND WHITE CAB COMPANY, Defendant-Appellant, and Juanita Pantoja, Defendant-Respondent.
    No. 23529.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.

      John R. Gibson (Morrison, Hecker, Coz-ad & Morrison), Kansas City, for appellant.
    Keith K. Couch and James L. Williams (McKenzie, Williams, Merrick, Beamer & Stubbs), Kansas City, for respondent-defendant.
    Paul H. Niewald (Sanders & Niewald), Kansas City, for respondent.
   HUNTER, Presiding Judge.

This litigation arises out of an intersec-tional collision in Kansas City between a Ford automobile being driven by defendant-respondent, Juanita Pantoja, and defendant-appellant, Black and White Cab Company’s taxicab being driven by Irvin Gordon. On the afternoon of December 18, 1959, plaintiff-respondent, Ethel Brady, was a passenger in Mrs. Pantoja’s automobile traveling east on 19th Street when it collided with defendant’s vehicle southbound on Walnut Street. The impact occurred in the intersection of 19th and Walnut Streets. There was a traffic light in operation there at the time.

Plaintiff brought suit in the Circuit Court of Jackson County against both her driver, Mrs. Pantoja, and the taxicab company. The jury found the issues for Mrs. Pantoja and against the taxicab company in the sum of $8,000.00. Judgment was entered accordingly.

Thereafter, a motion for new trial was duly filed on behalf of defendant-appellant taxicab company. Before this motion could be heard the trial judge before whom the case had been tried became ill, and it was necessary for the motion to be heard by another judge of the circuit court properly assigned for that purpose. This judge overruled the motion and the taxicab company has appealed.

In view of the disposition we make of this appeal, a brief statement of the facts concerning the collision will suffice.

Plaintiff testified she was traveling east on 19th Street in Mrs. Pantoja’s car, and when the car in which she was riding was about a half block back, traveling at a constant speed of 20 miles per hour, the traffic signal light at 19th and Walnut was green for eastbound traffic. She saw this light turn amber as the car reached the west line of the crosswalk (the 19th Street crosswalk on the west side of the intersection). When the car had gone into the intersection “a little less than halfway” she saw the taxicab coming up to the crosswalk lines on Walnut at a constant rate of speed of at least 25 to 28 miles per hour. The taxicab was in the third lane to the east as it reached the intersection, and when the cab driver “got very close to us, (not more than 5 or 6 feet) he looked up and had a very surprised look on his face.” Neither car slowed down, braked, or turned and the cars collided when the front of Mrs. Pantoja’s car was just a few feet short of the crosswalk lines on the east side of 19th Street. “Q. And it (taxicab) came against the red light? A. Yes.” Right after the impact she glanced up and the light for eastbound traffic on 19th Street had changed from yellow to red.

It was Mrs. Pantoja’s testimony that when she was about a half block away and proceeding at 20 miles per hour east on 19th Street toward Walnut the traffic light at 19th and Walnut was green for eastbound traffic. When she was between 4 to 6 feet east of the west curb line of Walnut Street the light turned yellow. She proceeded on with unchanged speed and unchanged direction to the point of impact near the middle of the intersection. She did not see the cab prior to the collision. She stated the light for eastbound traffic did not turn red while she was in the intersection before the collision. On cross-examination she stated she did not know what the color of the light was at the time of impact.

The driver of the taxicab, Irvin Gordon, testified that he was going 20 miles an hour south on Walnut, a four lane one way street, in the third lane to the east and that he never moved out of that lane. The traffic light in question was green for him when he was 20 feet beyond the intersection at 18th Street headed toward 19th Street. He entered the 19th Street intersection on the green light, and it was still green after the impact. He never saw the Ford car until he was about 5 feet from it. At that time he was “around the middle of the intersection.” He never changed his speed or direction.

Carl Felt, an independent witness, testified on behalf of defendant Cab Company that he was driving south on Walnut behind the taxicab; that the taxicab approached and entered the 19th Street intersection on the green light, and that it remained green until after the impact.

Ruth Montoya, sister of Mrs. Pantoja, also a passenger in the Ford car, testified the traffic light was green for eastbound traffic on 19th Street as they approached the 19th Street intersection. She did not again observe it.

Ruth Chacon (now deceased) a passenger in another car and a witness to the accident, testified, by deposition. In a rather unclear fashion she stated that at the time the cab started into the intersection the light was red (for the taxicab), and after Mrs. Pantoja’s car was in the intersection the light changed.

The first question before us is whether the judge who heard the motion for new trial erred in refusing to grant a new trial on the ground that Juror Ralph M. Jones on voir dire examination intentionally failed to truthfully answer certain questions and to disclose information concerning claims and lawsuits asserted by him and his wife. Appellant Cab Company contends there was intentional concealment of this information; that such concealment demonstrated bias and prejudice on the part of the juror, and resulted in the Cab Company. being deprived of a jury composed of twelve fair and impartial persons.

A summary of the more pertinent portions of the voir dire examination is in order. At the commencement of that examination plaintiff’s counsel told the panel, “Now, as I ask these questions (concerning your qualifications to sit on this jury), or if any of. the attorneys ask these questions, don’t hesitate if it requires an answer to raise your hand and let us know, because we have to ask these questions to determine your qualifications. The reporter, of course, is taking this down, so it would help us if you would answer frankly, and if you have any questions, if you are not sure that the answer is in the affirmative or not, let us know, so that we can go into the matter, because this is important. If you don’t answer these questions or if it doesn’t get into the record and then later something would be found about that, it could upset the whole trial.” Thereafter, plaintiff's counsel asked, “whether there are any members of the jury panel who have ever been a plaintiff in a lawsuit? In other words, the plaintiff is a party bringing the lawsuit against someone else.” Several of the panel responded, advising of lawsuits in which they had been plaintiffs and they were examined about those cases. Then the question was repeated, and plaintiff’s counsel added, “Now, if you are not sure what a plaintiff is, and you think you may have been a plaintiff, don’t hesitate to let us know, because we want to inquire into these things, and we want the record to be straight on it?” Throughout all of this Juror Jones remained silent.

The next questions were limited to “where you have been involved in an automobile accident and made a claim”, etc. Thereafter, counsel asked: “Have you or any member of your immediate family ever been the plaintiff in a personal injury lawsuit?” Juror Jones remained silent. The following question was, “Any person who has had a member of your immediate family as a plaintiff in a personal injury lawsuit?” Several others on the panel responded to this question which was from time to time repeated but Juror Jones remained silent. The next question was, “Anyone else? Either them personally or a member of your immediate family had a lawsuit for personal injuries?” Juror Jones made no response.

Near the close of the lengthy voir dire examination, the question asked was, “Is there any one else who has been searching their memory for the last few questions who recalls any circumstance under which they or any other members of their family may have been a plaintiff in a personal injury lawsuit?” Juror Jones remained silent. The next question was, “Have you or any member of your immediate family ever had a claim for personal injuries which did not necessitate the filing of a lawsuit, simply a claim made and either settled or denied?” One panel member answered, but Juror Jones continued to remain silent. Twice, thereafter, the panel was asked “Anyone else who has had a claim or any member of your immediate family.” Several members of the panel volunteered information but Juror Jones remained silent.

The final question on this subject was, “I take it by your silence, then, that we have now covered all persons who have been plaintiffs or had claims or workmen’s compensation claims ?” Additionally, the panel was inquired of, “Now, have, you or any member of your immediate family ever sustained through any cause an injury to your neck region ? Any person on the panel, either personally or any member of your family, that sustained an injury to the neck?” Although one panel member spoke up, Juror Jones did not.

At the hearing on the motion for new trial filed by defendant-appellant Cab Company evidence to the following effect was adduced: Mr. Thomas E. Deacy, a Kansas City attorney, stated that as a result of an automobile accident which occurred on July 1, 1953, he filed on behalf of a Mr. Bigler a suit against Mrs. Ralph M. Jones, wife of the panel member, and Mrs. Jones filed a counterclaim against Mr. Bigler for $25,000. Her alleged injuries were of a serious nature and included serious injury to her neck. Then a separate suit was filed on behalf of Ralph M. Jones for $15,000 against Mr. Bigler wherein Juror Jones sought recovery of damages by reason of his wife’s alleged injury. The circuit court files concerning these two suits were introduced in evidence. These cases were settled in 1957 and dismissed on separate executed stipulations. The sum of $4,300 was asked as consideration for the settlement release. On the basis of a serious question as to any liability on the part of Mr. Bigler the settlement sum of $800.00 was agreed to and paid to Mr. and Mrs. Jones and their attorneys by a check made out in all of their names as payees. This check was later endorsed by them and cashed. The releases were prepared by Juror and Mrs. Jones’ attorneys and were executed by Evelyn L. and Ralph M. Jones. Mr. Bigler executed a similar release, releasing Evelyn Jones and Ralph M. Jones. These releases are in evidence.

The hospital records concerning Mrs. Jones’ hospitalization as a result of her accident are in evidence. They indicate she was hospitalized on July 15, 1953, and was released as “improved” on July 25, 1953. Her injuries included brain concussion, bleeding from left ear, severe pain in head, injury to neck and shoulder and visual disturbances.

In her deposition taken on July 20, 1954, in connection with both her suit and the separate suit of her husband against Mr. Bigler, Mrs. Jones stated: On her doctor’s orders she eventually had to quit her employment because of her injuries resulting from the accident, later combined with pneumonia. She had visible arm, elbow, shoulder and leg bruises from some time after the accident, and a big knot on her head. After leaving the hospital she remained at home two or three weeks, and then went back to work until she got pneumonia. As a result of her injuries from the accident, particularly headaches, she was unable to do her housework and her husband and children have had to do it for her since the accident to the date of the deposition. She still has severe and violent headaches six days out of the week. Some last three days without interruption. She can’t lift anything heavy without triggering head pain. Once she even blacked out from such pain. When her head hurts her neck aches. The financial strain from the accident has cut their financial standard of living severely. “Sometimes we eat pancakes for four days in a row; my children have had no pleasures, they can’t go swimming, picture shows or anything, that normal children do. And its meant that they had to go without the proper clothing. At times that- they needed it. And it has been a lot of hardship.” Her husband personally paid all her numerous bills for prescriptions, medicine and medical services. Title to the car in which she was riding was in her husband’s name and it was repaired. Mrs. Jones’ husband was called to the scene of the accident; took her to the police station where he put up a $50.00 bond for her; took the car to the garage for repairs which cost several hundred dollars, of which sum he paid $50.00.

It is noteworthy that Mrs. Jones’ accident was the result of an intersectional collision involving a stop sign and right-of-way contentions.

George T. O’Laughlin, Kansas City attorney, testified he was one of the attorneys who represented Mr. and Mrs. Jones in the suits involving Mr. Bigler. He stated that during the pendency of those lawsuits he talked with Juror Jones “three times in person, and at least one time over the phone.” He personally knew his associate took Mr. and Mrs. Jones by the scene of the accident on another occasion. His first conversation with Juror Jones was by telephone to determine how title to his car was held “so that we could make a claim on behalf of his insurance company”. Juror Jones was the named insured. He had discussions with and informed Mr. Jones there was a lawsuit pending for his wife’s injuries and also a lawsuit “for Ralph Jones for loss of services.” On another occasion at Mr. Jones’ home Mr. O’Laughlin in the presence of Mr. Jones discussed with Mr. Jones and Mrs. Jones her medical history as it related to the accident he was representing her in. The subject “of a lawsuit for both husband and wife” was discussed with both of them. “Q. Did you have authority to file a lawsuit for Ralph M. Jones ? A. Yes.” On another occasion he and his associate counsel “went over and discussed immediate trial preparations with Mr. Jones and Mrs. Jones and generally what our trial plans were.” The settlement proceeds were paid to both Mr. and Mrs. Jones.

Ralph M. Jones testified at the hearing on the motion for new trial. He identified himself as a member of the jury and had taken the customary oath to tell the truth on the voir dire examination. He understood the questions asked on that occasion were for the purpose of determining his qualifications as a juror in the case. He heard the numerous questions asked regarding whether he had ever had a lawsuit or a claim and whether any immediate member of his family had ever been the plaintiff or defendant in a lawsuit or had had a claim. He understood the questions but did not respond to them. His explanation was that “as far as my memory goes, I have never had a lawsuit and at the time something — well, I guess that I had known that the wife had had one, but I had nothing to do with it, and I received no money; as far as I know, I didn’t sign anything.” At the times the questions on voir dire were asked, “I knew she had had an accident. I didn’t recall whether she had a lawsuit or just what happened. I didn’t know the disposition or what happened in the case at all.” In answer to another question he acknowledged that at the time the jury was being selected he did know his wife had had a claim and lawsuit. “Q. And you didn’t answer and tell anything about the claims or lawsuit? A. Well, I felt like that I wouldn’t be able to answer any questions on it; I wouldn’t be able to tell you how it came out.” * * * “It was just out of my mind.”

Mr. Jones admitted it was his signature on the mentioned release. He stated he did not recall if his wife had been hospitalized after the 1953 accident. “Q. And she had trouble with her injuries for a period of time following that? A. I don’t know whether it was due to the accident or not.” * * * “Q. And that accident caused some financial hardship in your family, did it, Mr. Jones? A. I don’t 'know that it was any different than any other time.” He conceded he and Mrs. Jones might have discussed their claims “but I don’t remember whether we talked about it or not.” He denied he had any bias in the case or bias resulting from the •earlier claims and suits of his and his wife.

The law governing the question presented is well settled. It is only its application that is sometimes difficult. The constitutional right of every citizen to a •trial by jury to be meaningful contemplates a fair and impartial jury. The jury should consist of twelve impartial, qualified jurors. Even though three-fourths of them can decide a civil case, parties are entitled -to have that decision, whether for them or against them, based on the honest deliberations of twelve qualified jurors. Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W. 2d 695, 127 A.L.R. 711.

It is the duty of a juror on voir dire examination to fully, fairly and truthfully answer all questions directed to him so his qualifications may be determined and so that challenges may be intelligently exercised. It makes no difference whether the unanswered or untruthfully answered question was one asked to the panel generally or to the particular juror individually. So long as he hears the question and understands that it calls for an answer by him as a member of the panel, even though it may be directed to the panel generally he is not relieved of his duty to answer. In Gibney v. St. Louis Transit Co., 204 Mo. 704, 103 S.W. 43, 47, it is phrased, “ * * * it was enough to ask such a question as would indicate to the mind of a fair and reasonable man what information the examining counsel sought to elicit.” To rule differently would make a mockery of his solemn oath and duty to respond truthfully to pertinent questions touching upon his qualifications as a juror. It would also result in all questions having to be asked individually of each member of the panel and thus needlessly prolong voir dire examinations by in effect abolishing the time honored practice of putting questions to the entire panel.

Nor does the fact that the particular juror believes he no longer remembers the details of a prior suit or claim relieve him of the duty to state he had a prior lawsuit or claim, if when the pertinent question on voir dire is asked he remembers he had such a claim or lawsuit. He must respond to the question in good faith as best he can, and if he cannot recall details he can truthfully state that to his interrogator.

A juror’s intentional concealment of a material fact may compel the granting of a new trial. Woodworth v. Kansas City Public Service Co., Mo.Sup., 274 S.W.2d 264. This for the reason that his conduct reveals he is not truthful and the intentional concealment of a material fact is strong evidence of bias and prejudice which will affect his conduct as a juror as well as his qualifications.

The accepted rule is that it is for the trial court in the exercise of its sound judicial discretion to determine upon hearing whether or not in the particular instance the juror is guilty of an intentional concealment of a material fact or had merely forgotten the earlier event; and, thus to decide whether or not a new trial should be granted. Logsdon v. Duncan, Mo.Sup., 293 S.W.2d 944; 38 A.L.R.2d 624, 631.

In Triplett v. St. Louis Public Service Company, Mo.App., 343 S.W.2d 670, the appellate court held the trial court abused its discretion in not granting a new trial for the deliberate failure of a juror to disclose pertinent information on the voir dire examination. As there stated, loe. cit. 673: “In the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left' to the sound discretion of the trial court. Reich v. Thompson, 346 Mo. 577, 142 S.W. 2d 486, 129 A.L.R. 795. Nevertheless, the exercise of such a discretion is subject to judicial review, and if an appellate court concludes from the record that an abuse of discretion unmistakeably appears, it is its duty to reverse the ruling. Piehler v. Kansas City Public Service Co., supra [357 Mo. 866, 211 S.W.2d 459] ; Harrison v. St. Louis Public Service Co., Mo.App., 251 S. W.2d 348.”

In Girratono v. Kansas City Public Service Company, Mo.Sup., 272 S.W.2d 278, 281, it is said, “ * * * In considering cases which have discussed this question, it should be kept in mind that a different rule obtains when a motion for new trial has been sustained than when it has been overruled. The appellate courts are more liberal in upholding a trial court’s action in sustaining a motion for new trial than in denying it, and the language of the courts in approving the action of a trial court should be read with this distinction in mind.”

As stated in Wallace v. Whitzel, Mo. App., 324 S.W.2d 157, 160: “An abuse of the judicial discretion vested in the trial court results when there is rendered an erroneous conclusion in judgment, one that is clearly against logic and the effect of facts before the court or the reasonable, probable and actual deductions to be drawn from such facts and circumstances.”

The fact that Juror Jones stated he had forgotten his own claim and lawsuit, and that the reason he did not disclose his wife’s claim or lawsuit was because at the time of the voir dire examination he didn’t have enough memory of it to answer questions about it did not require the trial court to believe such statements. The court was not bound to accept his statement as true or his explanation to be in good faith and thus to conclude there was no intentional concealment by him of a material fact.

Upon the record before us and before the judge (not the trial judge) who overruled the motion for a new trial, we conclude that it was an abuse of sound judicial discretion to fail to grant the motion. As stated in the case of Girratono v. Kansas City Public Service Company, supra, loe. cit. 281: “When the above * * facts are considered, it would tax the credulity of the most naive person to believe he had merely forgotten about such matters. The trial court was not required to believe the bland statement of (the juror) that he had forgotten such suits. All the facts and surrounding circumstances must be considered in determining that issue. A prospective juror is not the judge of his own qualifications.”

In Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 399, 116 S.W.2d 27, 29, our Supreme Court said, “Where there is a dispute as to liability, and an objectionable juror is permitted to try the case, it is difficult to conceive how that could be harmless error, unless waived by the losing party, even though there be a unanimous verdict.”

Although we have determined that a new trial is necessary for the reasons given above, we deem it prudent to mention another of appellant’s contentions of error. Appellant claims that Instruction No. 1 was erroneously given for the reason, among others, that the instruction is based on evidence in conflict with plaintiff’s own testimony. We have concluded that there is merit in this contention. The verdict directing instruction submits on behalf of plaintiff a situation in which the taxicab entered the intersection on the green light but its driver failed to keep a proper lookout, and in the disjunctive also submits a situation in which the taxicab entered the intersection on the red light and hence failed to yield the right-of-way. Plaintiff’s testimony, which we have set out above and as we understand it, is that the taxicab entered the intersection on the red light. In view of earlier rulings of our Supreme Court we do not believe plaintiff is entitled to instruct on a hypothesis directly contrary to her own positive testimony. See, Giambelluca v. Missouri Pacific Railroad Co., Mo.Sup., 320 S.W.2d 457-474; Fisher v. Gunn, Mo.Sup., 270 S.W.2d 869, 874; Trump v. Ballinger, Mo.Sup., 317 S.W.2d 355, 359; West v. St. Louis-San Francisco Ry. Co., Mo.Sup., 295 S.W.2d 48. If we are mistaken as to what plaintiff intended by her testimony she will have an opportunity on new trial to more clearly state her personal knowledge concerning the color of the traffic light as the taxicab entered the intersection.

Appellant-defendant Cab Company in its motion asked for a new trial as to the issues between plaintiff and defendant Cab Company or a new trial as to all parties and all issues. The Cab Company suggests this court should grant a new trial as to all parties, including defendant-respondent Pantoja in whose favor the jury found, for the reason that the misconduct of the juror would relate to all parties. Plaintiff-respondent makes the same suggestion so as to avoid a possible situation where upon retrial the jury might believe Mrs. Pantoja was the responsible party thereby defeating plaintiff’s recovery, citing Civil Rule 78.01, V.A.M.R., and the cases of Hicks v. Shanabarger, Mo.App., 236 S.W.2d 49, and Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543, 545. It is noteworthy that plaintiff-respondent Brady did not file a motion for new trial as to defendant-respondent Pantoja, nor take an appeal from the judgment rendered. Essentially the question presented is whether one of two defendants may successfully complain of a juror’s misconduct, or any trial error, other than one affecting the losing defendant’s defenses. There is no contention that plaintiff’s right of recovery was limited to a judgment against the defendants jointly.

Research by the parties and this court has not produced a case directly in point. However, we think certain accepted considerations indicate the lack of merit in the contention. A plaintiff may sue any or all wrongdoers contributing to his injury. This plaintiff could have selected the Cab Company as the sole defendant and the Cab Company could not successfully complain that defendant-respondent Pantoja was not included in the suit. Plaintiff could have dismissed as to defendant Pantoja at the close of all the evidence and defendant Cab Company could not meritoriously complain. Defendant Pantoja’s motion to dismiss at the close of the evidence could have been improperly sustained by the court and the Cab Company could not thereafter successfully complain of that action.

Here, plaintiff-respondent Brady cannot successfully complain because she did not file a motion for new trial, nor take an appeal from the judgment rendered, which judgment was in accordance with the verdict in favor of Mrs. Pantoja. While it is true that if Mrs. Pantoja had received an adverse judgment and had been the appellant and plaintiff the respondent, plaintiff as between them could timely assert her contentions of error even though plaintiff had not appealed, (See, Wilhelm v. Haemmerle, Mo.Sup., 262 S.W.2d 609.) this is not the same as permitting a non-appealing plaintiff to assert in the appellate court contentions of error against a defendant who also is not appealing. If plaintiff had wished to keep defendant Pantoja in the case she should have filed the usual motion for a new trial complaining of the verdict and judgment for defendant Pantoja and have appealed from the judgment after the adverse ruling on the motion. Not to do so is to abandon any personal right to keep that defendant in the case and to permit the judgment as to that defendant to become final.

We have also concluded that defendant-appellant Cab Company cannot successfully complain of the jury’s verdict and resultant judgment in favor of his co-defendant and against plaintiff where the tort claim asserted is both joint and several in nature. Civil Rule 78.01 permits granting new trials “for any of the reasons for which new trials have heretofore been granted” and “on motion of the proper party”. It provides, “a new trial may be granted to all or any of the parties * * We know of no case prior to or after Civil Rule 78.01 holding that one defendant can successfully complain of a jury verdict and judgment in favor of a co-defendant when the claim asserted against them was joint and several in natur.e. We do not believe Civil Rule 78.01 contemplates, where the tort claim is joint and several, that a co-defendant is a “proper party” to obtain a new trial for, or to include, the other defendant who is satisfied with the trial and judgment. Our view accords with the fundamental theory that on an appeal a party is entitled to assert only his personal rights, and cannot complain of the court’s action toward another party not involving any right of the one complaining. Cf. Kansas City v. Cain, Mo.App., 319 S.W.2d 266(6). Certainly defendant-respondent Pantoja is not complaining that Juror Jones was prejudiced against her and she is not dissatisfied with the jury verdict and judgment.

We refrain from any consideration of other numerous allegations of error concerning instructions, weight of the evidence, and alleged excessiveness of the judgment. These matters are not likely to arise again in view of the enlightenment contained in the briefs and the opportunity of a new trial.

The judgment is reversed and the cause is remanded for a new trial between plaintiff-respondent Brady and defendant-appellant Black and White Cab Company. It is so ordered.

All concur.


source: Caselaw Access Project

author: BROADDUS, Judge.

license: Public Domain

text:
    Vicki CLARK, Pro-Ami, Respondent, v. Harry PORTMAN, Appellant.
    No. 23465.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.

      Watson, Ess, Marshall & Enggas, Darrell L. Havener, Robert B. Olsen, Clayton Rhoads Smalley, Kansas City, for appellant.
    Michael F. Mahoney, James W. Humphrey, Jr., George T. O’Laughlin, Kuraner., Freeman, Kuraner, Oberlander & Lamkin, Kansas City, for respondent.
   BROADDUS, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict in the sum of $10,000 and defendant has appealed.

Inasmuch as defendant does not contend that plaintiff did not make a submissible case there is no need to set forth the evidence in detail. The accident out of which this action arises occurred the evening of November 5, 1959, after dark, near the intersection of 9th & Central Streets in Kansas City, Missouri. The plaintiff was a passenger in a 1952 Plymouth automobile driven by a Miss McGonigle south on Central after a right turn from 9th Street. The McGonigle car was hit on the left front fender by the right front bumper of the defendant’s Cadillac automobile, which was also going south on Central after turning left from 9th Street.

Defendant’s first contention is that Instruction No. 1 given at plaintiff’s request is erroneous for the reason that it failed to hypothesize facts which required a finding that the accident occurred according to plaintiff’s theory and evidence. The instruction reads as follows:

“The Court instructs the jury that if you find and believe from the credible evidence that on November 5, 1959, plaintiff was riding as a passenger in a 1952 Plymouth automobile being driven by Miss Ann McGonigle and that plaintiff was at all times exercising ordinary care for her own safety, if so, and that the said Plymouth automobile made a right turn from 9th Street to go south on Central Street, and that the defendant turned his Cadillac automobile to the left from 9th Street to go south on Central and that thereafter the said Cadillac collided with the side of the left front fender of said Plymouth and that as a direct result of said collision plaintiff was injured and that prior to said collision the defendant negligently failed to exercise the highest degree of care to keep a careful and continuous lookout for vehicles in motion at and near 9th and Central and in particular the automobile in which plaintiff was riding, and defendant was thereby negligent, if you so find, and that as a direct result of such failure said collision occurred, then, if you so find, your verdict, must be in favor of plaintiff on plaintiff’s petition.”

In no respect does the instruction violate the rule set forth in Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, the case chiefly relied upon by defendant. The instruction hypothesized the “essential facts” as suggested by Judge Hyde in the concurring opinion in that case.

In the recent case of Asher v. Griffin, 342 S.W.2d 255, 259, the St. Louis Court of Appeals refers to the Hooper case and its predecessors, Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972 and Kick v. Franklin, 342 Mo. 715, 117 S.W. 284, and says: “The above cases are not to be construed as requiring a submission of evi-dentiary facts not necessary or essential to a finding upon the issue or issues specifically submitted.” (Emphasis ours.)

There is no contention by defendant that the instruction was not supported by the evidence. Defendant’s position is, on the contrary, that there was more evidence as to the happening of the accident than appeared in the instruction. A party is entitled to submit instructions based upon evidence which favors his theory of the case, notwithstanding such evidence may conflict with evidence offered by the opposing party. Highfill v. Brown, 340 S.W.2d 656, 661 (Mo.Sup.).

Defendant asks “When ‘prior to said collision’ did he fail to maintain a propor lookout?” Our Supreme Court announced long ago that “it ought, therefore, be sufficient to authorize a verdict if a jury finds that a party was negligent in failing to keep a proper lookout and that such negligence resulted in a collision or damage.” Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, 693. There can be no doubt that the duty of the defendant was to keep a careful, continuing and vigilant lookout. Therefore the requirement of the finding of causation supplies the “when” for defendant’s' failure to keep a continuing lookout. McCarty v. Sebben, 331 S.W.2d 601, 603 (Mo.Sup.). We find no prejudicial error in the instruction.

Defendant next contends that the court erred in permitting plaintiff’s witness, Dr. Jacobs, to state his diagnosis and give his opinion of plaintiff’s condition for the reason that his diagnosis and opinion were not based solely upon her present complaints but upon her past medical history

An examination of the transcript reveals that Dr. Jacobs repeatedly stated on both direct and cross-examination that it was not necessary to have plaintiff’s past history to diagnose a post-traumatic neurosis or to form his opinion that plaintiff has permanent brain damage. At no place in his testimony did the doctor testify to, or recite the patient’s account of her past history. The only complaints related by the doctor as made to him were plaintiff’s complaints of her then present and existing physical sensations and mental and emotional upsets. While it is true that a doctor may neither recite the patient’s past history nor testify as to a diagnosis based on such, it is equally true that a doctor may testify to a diagnosis made, or which could have been made without regard to past history. Cruce v. Mobile and Ohio R. Co., 361 Mo. 1138, 1148, 238 S.W.2d 674, 679, 680. The contention lacks merit.

Defendant’s third contention is that the court erred in admitting plaintiff’s evidence respecting medical expenses not paid by her, for the reason that plaintiff was an unemancipated minor and plaintiff’s next friend, her mother, alone had the cause of action for such expenses.

Defendant in his brief states that he “makes no objections to the admission of testimony by plaintiff and physicians treating her as to the portions of -the fees for such treatment which the plaintiff herself has paid out of her own funds.” Defendant did not object to Dr. Feierabend’s or Dr.- Jacobs’ statement of the future cost of medical aid or to Dr. Jacobs’ statement of the cost of his treatment to the time of trial. The only expenses about which the defendant is complaining then are $73 owed to Dr. Huffman, $125 owed to Dr. Reister -and $75 owed to Dr. Feierabend. Plaintiff paid $100 to Dr. Huffman and $75 to Dr. Reister.

In any event the error, if any, was harmless since in the instruction on the measure of damages the jury was not asked to award plaintiff damages for medical care and expenses.

In the case of Dent v. Springfield Traction Co., 145 Mo.App. 61, 69, 70, 129 S.W. 1044, 1047, the plaintiff pleaded that she had paid $250 for medical attention. She proved that she had only incurred liability for medical expenses in the amount of $250. The Court held that there was no error in admitting evidence of the medical expenses incurred, saying, the trial court: “ * * * in giving instructions for the plaintiff, limited the recovery of damages to such sum as would reasonably compensate plaintiff for her pain and suffering, and gave no direction to the jury that they should allow any sum whatever for medicines and medical attention * * *. Under the instructions actually given to the jury, the improper admission of evidence as to medicines and medical services * * * was harmless error, not materially affecting the merits of the case.”

In the case of Bolles v. Kansas City Southern Ry., 163 Mo.App. 697, 699, 147 S.W. 497, 498, the plaintiff in a personal injury action introduced evidence that he was a house painter by trade and earned $4.00 a day. This Court in deciding that the admission of such evidence did not require a reversal said: “If this was error, as claimed, it was rendered harmless by the instruction on the measure of damages, which did not include such loss of earnings.”

Defendant’s final assignment is that the verdict is excessive. This calls for a review of the medical testimony and other evidence bearing on the nature and extent of plaintiff’s injuries. In determining this issue we must consider the evidence and inferences favorable to the verdict and disregard conflicting testimony. Henderson v. Dolas, 217 S.W.2d 554, 557 (Mo.Sup.).

As a result of the impact, the .right side of plaintiff’s head, shoulder and arm struck the right side of the car. The same evening following the accident she experienced an extreme burning headache, a ringing in her right ear, pain in her neck, right shoulder and arm and the back of her head was tender and sore. She was not able to sleep very much that evening, and the next day at work she had headaches, pain in her neck, and right shoulder, her eyes were blurry and she couldn’t concentrate.

Plaintiff has had this burning type of headache in the back of her head about every day since this automobile collision. For two or three weeks after the accident she experienced a constant ringing in' her right ear; this same ringing sensation is still frequently present. She is still experiencing extreme pain in the hack of her neck.

Two days following the accident she visited an osteopathic physician, Dr. Huffman, whose offices were located near her place of employment. At the time of her visit to Dr. Huffman, she complained of burning and watering of her eyes, continuous headaches with a roaring sensation in her head, a sensation of pressure in the back of her eyes, soreness and stiffness of her neck, which was aggravated when she turned it to the right, and pain and soreness in the upper part of her back. Upon physical examination of the plaintiff, Dr. Huffman found tenderness to the neck on palpation, more pronounced on the right side, tenderness in the muscles in the back of the neck, particularly on the right side and extending down into the muscles of the right shoulder, sub-occipital tenderness where the head and neck join bilaterally, pain and restricted motion of her head and neck.

The plaintiff was treated by Dr. Huffman 14 times at his office, and these treatments consisted of motorized traction and ultrasonic therapy. Up to 30 pounds of this traction was applied to plaintiff’s head and neck. The diagnosis of Dr. Huffman was that of a rather severe cervical strain and sprain with a reflex stimulation of the inner ear.

In January, 1960, plaintiff was examined by Dr. F. L. Feierabend. At that time, plaintiff complained of pain in the neck which radiated up to the back of her head and then around to the frontal area and down between the shoulder blades in the back, and to the right forearm. After examination he asked the patient to exercise her neck and head and return for additional observation.

On October 19, 1960, Dr. Feierabend reexamined the plaintiff. She was complaining of pain in the neck and pain in the back of her head. Upon examination. Dr. Feierabend found some crepitus over the lower spinous process. There was a popping sensation there when she moved. He found definite tenderness between the shoulder blades in the back. A cortisone injection was recommended for the crepi-tus.

Dr. Feierabend saw the plaintiff a few times after October 19, 1960, and stated he intended to hospitalize her for head traction and medication to relieve her pain and apprehension and the spastic condition of the muscles in her neck.

On April 6, 1960, Dr. Phillip Reister examined the plaintiff. She complained of neck pains, ringing in the ears, vertigo, dizziness, headaches, peculiar sensation or paresthesia of the arms, nervousness and low backache. On examination of the plaintiff’s neck, the doctor found 50% limitation of motion to the right and subjective crepitus or grating. Later, on October 14, 1960, the crepitus was such that Dr. Reister heard it “halfway across the room.” Dr. Graham, Dr. Reister’s partner, who examined plaintiff on March 21, 1960, gave plaintiff ultra sound and muscle stimulator treatment. He prescribed a muscle relaxant and a “small quantity of dessicated thyroid.” Dr. Reister prescribed a muscle relaxant and analygesic to relieve pain, light sedatives for her nerves and cortisone injections for the crepitus. To weeks after his first examination plaintiff saw Dr. Reister again. She still had aching, stiffness, soreness and limitation of motion in her neck. She complained of occipital and frontal headaches accompanying the neck pains. A cervical collar was prescribed and fitted on the plaintiff which she wore for about 10 months.

The doctor saw her for the last time on January 14, 1961, and found her jittery, nervous and complaining of head and neck aches. Dr. Reister’s diagnosis was cervical sprain, lumbar sprain and anxiety reaction. Dr. Reister recommended surgery for remedy of the crepitus in plaintiff’s neck. He referred her to Dr. Jacobs, neuro-psychiatrist for consultation.

Dr. Jacobs saw the plaintiff at the request of Dr. Reister on January 13, 1961. The plaintiff was complaining' of cracking and grinding in her neck, sore muscles in the back of her head, headaches, ringing in her ears and a burning feeling in her head. She stated that she was nervous and upset, didn’t seem to be herself and that everything bothered her; she was worried about the accident and about her neck. She further complained that she was worried about her job, that she couldn’t sleep at night, that she had nightmares about the accident, that she easily flew off of the handle and got into arguments, that she couldn’t figure out her own problems, that she was smoking too much and drinking too much coffee, that she couldn’t cope with people, that she cried easily, that she was afraid of the dark and that she was forgetful.

Based upon his “examination, neurological and psychiatric examination” Dr. Jacobs’ diagnosis of plaintiff’s condition was organic brain injury, post concussion, syndrome and post traumatic neurosis. The doctor stated that plaintiff was in need of intensive and probably prolonged treatment. The brain damage, at least, is a permanent injury.

Prior to the accident plaintiff was a normal, healthy girl who has always been content, easy-going, anything but a nervous person, who danced and whose main hobby was roller skating.

In determining whether a verdict for personal injuries is excessive each case must be decided on its own peculiar facts. As stated in the case of Breland v. Gulf, Mobile and Ohio Railroad Company, 325 S.W.2d 9, 16, Mo.Sup.: “An appellate court should not interfere with the action of a jury in this respect unless the injustice of the size of the verdict is manifest. * * * Consideration must be given to the purchasing power of money, and we must bear in mind the inroads inflation had made on the bargaining power of the dollar at the time of the rendition of this verdict (January, 1958). The failure of the trial judge to set aside the verdict as excessive is significant.” We are inclined to follow, and not interfere with, the conclusion of the jury and the trial court in the instant case.

The judgment is affirmed.

All concur.


author: RUARK, Presiding Judge.

text:
    STATE of Missouri ex rel. Clifford MORTON and Lulabelle Morton, Relators, v. Honorable Emery W. ALLISON, Judge of the 25th Judicial Circuit of Missouri, Respondent.
    No. 8068.
    Springfield Court of Appeals. Missouri.
    May 2, 1962.
    Motion for Rehearing or, in Alternative, to Transfer to Supreme Court Overruled June 5, 1962.

      Weldon W. Moore, Rolla, for relators.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent.
   RUARK, Presiding Judge.

In this prohibition case we are confronted with the unwelcome task of attempting to interpret an engineer’s description and to construe and apply Supreme Court Rule 86.06, V.A.M.R., in respect to the reinstitution of condemnation proceedings.

On April 3, 1961, the state highway commission filed its petition in condemnation against owners involved in its proposed plan for the construction of some 7.124 miles of highway (designated as Route 63) in Texas County. In that case (No. 7384) relators’ land was involved and they were made parties. Commissioners were appointed and they filed their report assessing the damages about May 9. About May 15, 1961, the highway commission filed its written abandonment in accordance with Section 523.040 RSMo 1959, V.A.M.S., and Rule 86.06. Thereafter, on August 10, 1961, the commission filed a new suit (No. 7432) setting forth the lands of relators to be taken by a different description. On August 18, 1961, relators filed motion to dismiss Case No. 7432 on the ground that the lands and abutters’ rights of access involved in that case were a part of the land condemned and then abandoned in previous Case No. 7384, and that this was in violation of Rule 86.06, which provides, among other things, that if the condemnor abandons the appropriation as to any property, proceedings for condemnation of the same property shall not be instituted again within two years thereafter. The circuit judge overruled said motion and indicated he would appoint commissioners. We issued our preliminary writ and the case is here on the return of the respondent with such facts only as are conceded in the pleadings and the briefs of the parties.

The description of the land and rights sought to be taken in the abandoned proceeding is as follows:

“18.11. All that part of the Clifford Morton tract lying in the S-½ SW-¼ Sec. 5, T 30 N, R 9 W, which is included in a parcel lying northwesterly of Route 63, Texas County, and southerly of main street of Houston, Missouri, and easterly of a line extending southerly from 35 feet and opposite Station 1/50 which is a point 350 feet north of and 14 feet west of the southeast corner of the SW-¼ SW -¼ Sec. 5, of the side road connection on main street, Houston, Missouri, to 70 feet opposite Station 1086/80; thence southwesterly 70 feet opposite Station 1087/12.55 of Route 63, Texas County, which is a point 193 feet north of and 47 feet east of the southwest corner of the SE-J4 SW-J4 Sec. 5.
“18.20. Also, all abutters’ right of direct access between the highway, now known as U. S. Route 63, Texas County and Grantors’ abutting land in the S-½ SW-H Sec. 5 T 30 N, R 9 W, extending from Station 1/50 of said side road connection of main street to opposite Station 1087/12.55 of said Route 63, Texas County.”

The description in the present suit is:

“9.11. All that part of Grantors’ tract lying in the S-½ SW-¼ Sec. 5, T 30 N, R 9 W, which is included in a parcel 70 feet wide lying northwesterly of and adjoining the surveyed centerline of said Route 63, Texas County, and extending from Station 1086/00 of said centerline to Station 1087/12.55. Said centerline is described as follows: Station 1086/00 is a point 341 feet north of and 117 feet east of the southeast corner of the SW-}4 SW-}4 of said Sec. 5, from which point and from a tangent bearing South 39° 00' 28.4" West said cen-terline deflects left on a spiral for a 6° curve, 112.55 feet to Station 1087/12.55 which is a point 251 feet north of and 47 feet east of said southeast corner, excepting therefrom that portion previously acquired.
“9.20. Also, all abutters’ right of direct access between the highway, now known as U. S. Route 63, and Grantors’ abutting land in the S-½ SW-J4 Sec. 5, T 30 N, R 9 W, from opposite Station 1086/00 to opposite Station 1087/12.55 on the right.”

The first question is, was the description in Case 7384 so vague and incomplete as to be a complete nullity? If so, as the highway commission contends it was, then that proceeding was void and can be disregarded. Sassman v. State Highway Commission, Mo.App., 45 S.W.2d 1093, 1095. Or was it, as is the contention of the owners, a description, however defective, from which the land could be located?

There is no question that the description in the first petition is not a good one. We think the statute and the rule contemplate that the condemnor shall describe the land and rights sought with such particularity that the owner can, without too much difficulty, ascertain exactly what is being taken. Law of Eminent Domain, Jahr, § 225, p. 345; 18 Am.Jur., Eminent Domain, § 325, p. 969; 29 C.J.S. Eminent Domain § 259a, p. 1228; State ex rel. N. W. Electric Cooperative, Inc. v. Waggoner, Mo.App., 319 S.W.2d 930, 934; see Missouri Pac. Ry. Co. v. Carter, 85 Mo. 448, 451. He should not be compelled to employ a surveyor to go upon the land and run a survey simply in order to learn what it is the state takes by sovereign right. A description which relies upon highway stations alone, although, in most instances, intelligible to a qualified surveyor with the highway plans in his hands, is incomprehensible to the average man, and too often to his attorney, and such has been the source of not infrequent complaint. We think it is not asking too much to say that the owner’s lands should be described by metes and bounds referenced to congressional section corners, recorded plat, or fixed and readily ascertainable monuments. And we think the description in Case No. 7384 was subject to motion by the owner. But in this instance the owners are not complaining. It is the creator of the description which now attacks it.

Filed with the petition, adopted by reference, and made a part of the petition is the detail plan of the improvement, which, the petition states, shows “the location of said highway through the lands herein affected and the particular parcels of land sought to be acquired” from the owners. The petition further states that such detail plans are intended to describe the parcels of land; and, finally, reference is made to such plans for a more accurate and perfect description of said parcels and rights sought to be taken. Reference for the same purpose is made to “the survey- or’s stakes heretofore driven along the line of said highway.”

Referring, now to “stations,” these are, as we understand, points on a center survey line. The commencing point is 00. Thereafter a survey station is established each 100 feet and given a progressive number. Thus Station 1/50 would be 150 feet from the beginning point. Normally, if there be no immediate reference point, an owner’s surveyor might have to survey back to the beginning point of the project survey to locate a particularly designated station.

By referring to the plat or plans incorporated in the petition, we learn that the land involved lies adjacent to the intersection of “present Rte. 63 to be obliterated” and the main street of Houston, Missouri. The route of the new or projected improvement comes in from the north and virtually rejoins “present” 63 at this intersection. The plans show a garage adjacent to this (almost) three-way intersection.

It will be noted that the part of the Morton tract to be taken lies in the south half of the southwest quarter, Section 5, Township 30, Range 9; that it lies northwest of Route 63 and south of the main street. Thus north and easterly barriers are fixed by these two roads. Highway says that the southeast corner of the southwest quarter of the southwest quarter is not located 350 feet north and 14 feet west of Station 1/50 as referred to in the first description. This we think (from a comparison of the surveys in Cases 7384 and 7432) is probable. But in this case we can locate Station 1/50 as a fixed position. The plans show the center of the intersection of Main Street and the highway to be 0/00 Main Street and 1085/45 highway. From there we can reach the point Station 1/50. A fixed location by monument would prevail over courses and distances. Highway says that we cannot locate the point of beginning at 35 feet from such station because we would not know what direction to go. Although we do not recommend the use of the word in descriptions purporting to advise a landowner what land of his is being taken, we think that opposite means, in engineering language, perpendicular to a survey line. Webster’s New International Dictionary, 2nd ed., says that “with respect to a given line two points are opposite when their connecting line would cross it at right angles.” Since Main Street is shown to run in an east-west direction, and since the land lies south of Main Street, and since the future course of the boundary line is directed to run to the south, there could be only one direction the “opposite” point could be, viz., to the south. Otherwise the survey line would run out into or across Main Street and then retrace its steps.

We can determine the location of Station 1086+80 and Station 1087+12.55 by reference to the fixed point 1085/45 in the center of the highway. We thus complete the west line, which encloses an area bounded on two sides by the highway and Main Street, and so arrive at a somewhat triangular-shaped figure representing the land to be taken. Hence, although the description in Suit 7384 is not to be recommended, we are of the opinion that it vested the court with jurisdiction and did not render the proceedings void. State ex rel. State Highway Commission v. Moore, 322 Mo. 329, 18 S.W.2d 892; Chicago, S. F. & C. Ry. Co. v. Swan, 120 Mo. 30, 25 S.W. 534; Mississippi County v. Byrd, 319 Mo. 697, 4 S.W.2d 810; City of St. Louis v. Waterman, 277 Mo. 221, 209 S.W. 905.

There seems to be little question that the description contained in the first case did not contain the actual land which Highway needed for completion of its project. This, as it appears, was probably due to a mistake in locating the section corner, or in chaining therefrom. The description in the new case would be, if we are able to draw it, a longer but much more narrow strip of ground. It involves less area than the first description. Most of the land to be taken thereby is not included in the first suit, but a small area is common to both descriptions. This common area is not great in proportion to either of the two descriptions, but since the property appears to be that adjacent to a garage we do not know as to its relative importance.

Could the petition have been amended? The parties have spent much time and argument on this question, the view being that it is pertinent to the construction and application of Rule 86.06. For if, as Highway contends — and there seems to be no question — the first description was by error, and if the error could have been reached by amendment, then there was no need to abandon and start anew, for such procedure makes more delay and expense to the owner and therefore more likelihood of falling within the reason for Rule 86.06.

The right to amend depends upon the circumstances, including the stage of the proceedings. It is said that the practice of allowing amendments is one which should find favor with the courts, since it saves time and expense to both the public and the parties.

It seems to be well settled that the condemnor may, after the report of commissioners is filed, abandon one of two separate tracts and proceed as to the other, or reduce the amount of property taken, or amend so as to reduce the damage or injury inflicted.' In at least one case an amendment (as a change of plan of the general improvement) was considered proper which made a small increase (eight inches) in the amount of land taken from some property owners and therefore was not substantial. But the general weight of authority seems to be that amendment cannot be made to take in different and additional lands after assessment if it substantially affects the owner’s rights. In State ex rel. State Highway Commission v. Wright, Mo., 312 S.W.2d 70, 74, the court was careful to point out that “it is also important that by the amendment the con-demnor did not seek to appropriate more land or easements than originally planned.”

One of the difficulties in respect to amendment so as to take in different or additional land, even to correct a mistake, is in the mechanics, that of having had the commissioners’ report. It would seem to the writer that it would be more practically effective and would incur less expense and inconvenience to both the owner and the public, if the condemnor satisfied the trial court that the original description was a result of inadvertence, to allow an amendment to change the description, set aside the report of commissioners, and have the commissioners reconvened to assess the property actually intended. However, as to such reassessment, we are met with our own decision in State ex rel. State Highway Commission v. McDowell, 236 Mo.App. 304, 152 S.W.2d 223. We think that the second description reflects a substantial change in the taking and takes in (comparatively) a large proportion of defendants’ property not included in the first. For that reason we believe that, under the existing law, the condemnor could not have safely amended after the report of commissioners had been filed.

This brings us to the final question: Does the Supreme Court Rule 86.06 prohibit the bringing of the present action within two years?

The statutes of the state in reference to condemnation are so incomplete that it has become necessary for the courts to fill in the gaps by applying general principles of equity and right. And by Rule 86.06 we think the Supreme Court has attempted to supply, as far as it may by procedural method, what the legislature has partially failed to do.

It has been held that a restriction against reinstitution after abandonment does not apply where there is a substantial change in the project or plan for the public improvement as such. City of St. Louis v. Franklin Bank, 351 Mo. 688, 173 S.W.2d 837, 847; see discussion in Center School Dist. No. 58 of Jackson County v. Kenton, Mo., 345 S.W.2d 120, particularly as to the Rogers case, at 1. c. 128. It is not shown, however, that the change in the land as to this particular owner amounted to a real change in the plan or project for the improvement as a whole. Rather it was a correction in description as to amount and location of the land and rights to be taken at a particular location on the project in order to accommodate the general plan. The new condemnation was not based upon a new project improvement.

The provision in the rule is the projection of thought expressed in Rogers v. City of St. Charles, 3 Mo.App. 41, 46:

“We cannot perceive what possible advantage can arise from the constitutional declaration that private property shall not be taken for public use without just compensation, if the State or any of its deputies, exercising the right of eminent domain, may cause as many inquests as it pleases of the value of the property to be condemned, and set aside as many of them as it sees fit, until one is found sufficiently small to suit its notions of a just compensation, and then to declare it to be so.”

Running through many of the decisions is the thread of thought that the sovereign may not use the extraordinary power of eminent domain so as to unnecessarily harass its citizens. It can well be argued that the citizens can be harassed just as woefully by the mistakes or incompetence of the sovereign’s delegates, as by design; but the needs of the public must be balanced against the rights of the individual owner; and even in the Rogers case (1. c. 47) the element of good faith is mentioned. In Center School Dist. No. 58 of Jackson County v. Kenton, supra, 345 S.W.2d 120, 128, the court in discussing Rule 86.06 makes note of the fact that it tends to free defendants from likelihood of vexatious litigation by virtue of want of good faith.

In construction of statutes the object sought to be accomplished and the evil sought to be remedied should be considered. It would seem that the same rule should apply to the rules of the Supreme Court when they confront a Court of Appeals. And it would seem that the object sought to be accomplished by that portion of Rule 86.06 was to furnish some measure of protection against the unnecessary harassment of an owner by irresponsible, vindictive, or ultra-bargain-seeking officials; but that its purpose was not to prevent the reinstitution where there has been a good-faith mistake or inadvertence resulting in the misdescription of a particular tract, for lack of which an extensive public improvement might be prevented or delayed. Nevertheless, the language of the rule is explicit and we have no right to change it by construction.

Accordingly the preliminary writ is made absolute.

McDOWELL and STONE, JJ., concur.

      . See State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 490, 495.

      . Waller v. City of Macon, Mo.App., 277 S.W.2d 886, 888; The Principles and Practice of Surveying, Breed and Hosmer, vol. I, p. 183.

      .Johnson v. Buffalo School Dist. No. 1, 360 Mo. 962, 231 S.W.2d 693, 696; City of Marshfield v. Haggard, Mo.App., 304 S.W.2d 672, 678; Law of Surveying and Boundaries, 3rd ed., Clark, § 540, p. 535, § 683, p. 832.

      .Law of Eminent Domain, 3rd ed., Lewis, § 561(361) ; Law of Eminent Domain, Jahr, § 235, p. 353; 18 Am.Jur., Eminent Domain, § 327, p. 971; 29 C.J.S. Eminent Domain § 265, p. 1236; see City of St. Louis v. Waterman, 277 Mo. 221, 209 S.W. 905, 908.

      . State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025.

      . Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478, 483.

      . State ex rel. State Highway Commission v. Wright, Mo., 312 S.W.2d 70; St. Louis, K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 906, 26 L.R.A. 751.

      . City of St. Louis v. Senter Commission Co., 336 Mo. 1209, 84 S.W.2d 133.

      . The Law of Eminent Domain, 3rd ed., Nichols, vol. 6, § 26.21, pp. 166-168; see Law of Eminent Domain, Jahr, § 225, p. 346; 29 C.J.S. Eminent Domain § 265, p. 1236, note 73; Leavenworth Terminal Railway & Bridge Co. v. Atchison, 137 Mo. 218, 37 S.W. 913, 915.

      . St. Louis, K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 906, 908, 26 L.R.A. 751; Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478, 483.

      . State ex rel. M. J. Gorzik Corp. v. Mosman, Mo., 315 S.W.2d 209, 211; In re Tompkins’ Estate, Mo., 341 S.W.2d 866, 872; State v. Tustin, Mo.App., 322 S.W. 2d 179, 182, footnote 9; see State ex Gerber v. Mayfield, 365 Mo. 255, 281 S.W. 2d 295, 297.


author: CULVER, Justice.

text:
    Ex parte Joe CONGER. Ex parte E. K. BUFORD.
    Nos. A-8877, A-8878.
    Supreme Court of Texas.
    June 6, 1962.

      Turpin, Kerr, Smith & Dyer, Midland, for relator.
    Clyde Vinson, San Angelo, for respondent.
   CULVER, Justice.

Joe Conger and E. K. Buford, County Commissioners of Upton County, were found guilty of having violated the terms of a permanent injunction and the writ issued in pursuance thereof and served upon them which commanded Upton County, its agents, servants, officers and employees to desist and refrain from using the road machinery and other equipment of Upton County for the benefit of private persons by blading and scraping off lots, filling in lots or hauling dirt, sand, gravel, or caliche or using such road equipment for the benefit of private persons or doing any form of soil or dirt work on private property. The trial judge, having found Mr. Buford guilty of three separate violations, imposed cumulative sentences of three days for each of the first two violations hereinafter discussed and twelve hours for the third. Commissioner Conger was ordered confined twelve hours for his single violation.

Relators first say that the injunction order was not violated for the reason that the work which forms the basis of the charges against them was not carried out for the benefit of private persons, wherefore they should stand discharged from the penalties inflicted upon them by the District Judge.

Commissioner Buford was charged with doing work with county equipment on three tracts of land owned by private parties near or in the town of McCamey. As to the first alleged violation the Commissioner testified that he had received a request from some people in the neighborhood to “clean up” a lot so that the children in the neighborhood would have a playground and that since he considered this was for the benefit of all the members of the community he scraped off the weeds and hauled them away. This action was taken without the knowledge or consent of the landowner.

Secondly, the Commissioner performed similar work on a tract owned by William Truesdale. Mr. Truesdale told Commissioner Buford that he was thinking about putting a house on his lots and requested the Commissioner to “blade” them off. The Commissioner replied that he had received requests from several people in that vicinity to clear off the brush on the corner of these lots because it formed a traffic hazard at the intersection of two roads. He then proceeded to blade and clean off the lots and hauled away the trash with county equipment.

The third charge concerned the act of a county employee in Commissioner Buford’s precinct who complied with the request of a homeowner to clear away a strip of weeds on a lot next to his property which he thought to be a fire hazard. In this instance while no express authority was given, the court found that the work was done with the Commissioner’s implied consent because he had allowed the employee to use county equipment for this same character of work on a previous occasion. We have not found in the statement of facts any testimony that would support such a finding of implied consent.

In our opinion the clearing and scraping off a privately owned lot for the use as a playground of all the children of the community is not “for the benefit of private persons” in contemplation of this injunctive order, but is rather for a public use or public purpose. No all-inclusive judicial definition of that term has been attempted by the courts, but each case is to be determined by its own peculiar circumstances. Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699. While there are two views as to what constitutes “a public use”, one being more restrictive than the other, nevertheless where there exists the direct use or right of use of the utility on the part of the public or even some limited portion of the public, all agree it is a public use. 73 C.J.S. Public p. 280.

We conclude therefore that the order in so far as it holds Commissioner Buford in contempt of court in respect to the first and third charges, cannot stand and must be set aside.

We are unable to say, however, that there is no evidence to support the court’s finding that Commissioner Buford did vio- . late the injunction by scraping off and removing the brush from the Truesdale lots. The work was actually done at the request of the landowner and for his benefit, who ''gave as a reason for the request that he was thinking about placing a house on the property which he thereafter actually did .do. ■ There is at least some conflict in the testimony about the height of the brush and the extent of the traffic hazard it may have occasioned. Taking all the testimony into .consideration we cannot say that the court .was unjustified in finding that the work was .done for the benefit of a private person, and therefore the contempt order is not void.

The complaint against Commis- • sioner Conger was that by implied consent he allowed county-owned machinery to be used for the benefit of private parties in blading and scraping off two lots in the town of McCamey so that the members of a church would have a place to park their cars while attending religious services. The employee who did this work had been instructed by Commissioner Conger not to use the county equipment on private property. He testified, however, that “I had had permission to use the equipment on the lands wherein the Lions Club had given the church permission, and I just presumed that if it was all right for me to use them for a parking area on one it would be all right to use it on another lot for the same purposes.” Work performed on privately owned property to furnish parking facilities for the use of members in attending services at their church is not for a public use or purpose, whether that work consists in scraping off weeds or paving the lot or excavating for a foundation. The matter does not turn on the extent of character of the work, but rather for whose benefit it was performed. A denominational church is a private institution, privately owned and operated. While the building and maintenance of religious institutions are in the public interest and may be said to promote the public welfare they lie without the domain of public uses and purposes. Smith v. Smythe, 197 N.Y. 457, 90 N.E. 1121, 35 L.R.A.,N.S., 524. To constitute “public use” all persons must have an equal right in respect to the property and it must be in common and on the same terms no matter that only a few in number may avail themselves of it. Palmyra Telephone Co. v. Modesto Telephone Co., 336 Ill. 158, 167 N.E. 860. The only point is whether the Commissioner had impliedly consented and we are of the opinion that there is testimony to support the finding of the court in that respect.

In the second place relators say that even if the injunction order was valid nonetheless it was not a contemptuous violation and for that reason they should be discharged. The argument is that each of the relators thought that what he did and what use was made of the county equipment was for the benefit of the public; that neither intended to do any work “for the benefit of private persons” and both acted in good faith in their respective acts. Relators further say that there was a reasonable basis for the belief that the use of the equipment was for a public use and not for the benefit of private persons and that the lack of an intentional disrespect should operate as a purge of the contempt charges. For this they cite Herring v. Houston National Exchange Bank, 113 Tex. 337, 255 S.W. 1097. That was an original action in the Supreme Court to have certain parties adjudged in contempt of that court and not a habeas corpus proceeding. In that case the, Supreme Court was the trier of the facts and acted within its own discretionary powers. While lack of intentional disrespect may be considered in mitigation that is a matter for the consideration of the trial court.

What we have here is tantamount to a collateral attack on the contempt judgment and we may order the relators released only where the judgment is void. We do not have jurisdiction to weigh the evidence or to consider matters that might be plead by way of mitigation. Ex parte Testard, 101 Tex. 250, 106 S.W. 319; Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184.

Relators assert that the burden rested upon the party who preferred these charges to prove not only a violation of the court’s order but also a defiant and contemptuous attitude “beyond a reasonable doubt” and for this proposition they rely upon Ex parte Jones, 160 Tex. 321, 331 S.W.2d 202. We do not agree with that appraisal. In the Jones case an attorney was held in contempt for making an argument to the jury which the court construed as being in violation of a ruling theretofore made. In that case we said:

“The record discloses no heated and bitter controversy between judge and counsel and the case turns upon the wording and scope of an order made by the judge which sought to control the course of oral argument to a jury.”

In summary our holding was based upon the conclusion that the court’s order was not directly violated and that the particular order “is not to be enlarged or broadened by construction and inference” and for that .reason the relator was discharged. We think that decision has little bearing upon the situation here.

In Ex parte White, 154 Tex. 126, 274 S.W.2d 542, the point before the court was said to be whether he has “contemptuously” disobeyed a court order. However, the word as used there, carried no more than the connotation of “knowingly or wilfully”. The .relator was discharged for the reason that under the evidence at the time of the issuance of the order it was beyond his power to comply. Therefore he had not “contemptuously” disobeyed. In this case it is admitted that the relators had full knowledge of the injunctive order and the reasons for its issuance. Russell Arnold who was engaged in hauling, moving dirt and in other construction work in Upton County, filed his petition against the four County Commissioners and Upton , Cpunty alleging that the Commissioners had . been, cleaning off and filling in lots, hauling for, 'private use and otherwise using county, equipment for the benefit of .private -per-, sons and thus materially injuring his business and causing a substantial loss of patronage and profits. It appeared that thereafter the parties agreed that Upton County should be enjoined but that the cause be dismissed as to the four Commissioners and also agreed upon the wording of the order as drafted and entered.

While individual. members of the County Commissioners Court have no authority to bind the county by their separate actions, Canales v. Laughlin, 147 Tex. 169, 214 S.W. 451, nevertheless it is no valid defense in this case to say that the acts of the two Commissioners detailed herein were not official acts ordered by the Commissioners Court. The writ restrained acts of this character, both official and’ otherwise, prohibiting not only Upton County but its agents, servants, officers and employees from doing the things complained of.' That this was the necessary effect of the injunction also, see Rule 683, Texas Rules of' Civil Procedure. In that respect the-trial court concluded as a matter of law and properly so that:

“That the Commissioners of Precincts 4 and 3 while acting without specific orders entered on the Minutes of the Commissioners Court of.Upton County, Texas, directing that such acts, be performed, by implied consent acted in their official capacity as County Commissioners, their having heretofore defended the basic action upon which said injunction was issued in that such acts had not been as individuals but in their official capacity, cannot now come before this Court and plead that such similar act or acts were in their individual capacities and not their official capacities and in effect evade the orders, judgments, decrees and injunctions of this Court.”

It is therefore ordered that the relators be remanded to the sheriff of Upton County to be by him confined in accordance with the order of the District Court as modified by this opinion, and that relators pay all costs of this proceeding.