text:
    KANSAS CITY, Missouri, a Municipal Corporation, Respondent, v. BERKSHIRE LUMBER COMPANY, a Corporation, Appellant.
    No. 50996.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 13, 1965.

      Herbert C. Hoffman, City Counselor, Ned B. Bahr, Asst. City Counselor, for respondent.
    Henry G. Eager, Kansas City, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for appellant.
   WELBORN, Commissioner.

This is a condemnation proceeding by the City of Kansas City under Article VI of its charter in connection with the construction of a viaduct in Truman Road. Berkshire Lumber Company filed its claim for $60,000 damages. In a trial before a six-man freeholders’ jury, Berkshire’s witnesses placed its damages at between $34,000 and $55,000. Berkshire asked the freeholders’ jury for “at least $40,000” but the award was for $11,300. Because of the amount in dispute, we have jurisdiction of this appeal by Berkshire.

On October 6, 1961, Kansas City enacted enabling Ordinance No. 26634, authorizing the construction of a reinforced concrete and steel viaduct in Truman Road, 2,809.75 feet in length, crossing three railroad line tracks and the Big Blue River. The viaduct was to be 61.25 feet in width, containing two roadways each 26 feet wide separated by a medial strip four feet in width. The ordinance provided for the condemnation of private property required for the project. It also provided for the condemnation of easements to support embankments or fill when necessary to bring the highway to the required grade.

Section 8 of the ordinance read as follows:

“Just compensation for the private property herein condemned, easements taken and damages accruing by reason of said improvement due to the partial obstruction of existing Truman Road, interference with light and air, and deprivation of access by reason of said improvement shall be assessed and paid according to law, payment of said compensation and damages to be made by Kansas City in cash out of the Kansas City Trafficway and Boulevard Bond Fund, 2d Issue, or other funds available or to be made available for said purpose. Proceedings for the taking and damaging of said property and the assessment of other damages accruing pursuant to law shall be prosecuted in the Circuit Court of Jackson County, Missouri, at Kansas City, as one public improvement, pursuant to the provisions of Article VI of the Charter of Kansas City, Missouri, the power conferred by said Article VI being hereby invoked. Insofar as owners of private property may be entitled to damages by reason of any change of grade of any highway, by denial of access to any public highway or by reason of the construction of said viaduct upon Truman Road, such damages shall be ascertained in the same proceedings in the manner provided in Article VII of the Charter of Kansas City, so far as applicable. * * * ”

Berkshire was the owner of a tract of 106,593 square feet fronting on the north side of Truman Road for 371 feet and averaging 284.57 feet in depth. The west end of the viaduct was 528 feet west of Berkshire’s west property line. Required to be taken for the project from Berkshire and the subject of this litigation was a tract of 4,008 square feet. The tract taken fronted on the north side of Truman Road for 220.88 feet and varied in depth from 10.43 to 19 feet. An additional 2,500 square ft. easement for embankment fill was also taken from Berkshire. The easement area lay immediately to the north of the 4,008 square ft. tract taken from Berkshire.

Berkshire had acquired the almost 214-acre tract in 1910. Berkshire operated a “cash and carry” lumber business at the location until 1943, when the tract was leased to Jones Lumber Company for a similar operation. Jones’ annual rental was $7,800, having been increased from $4,800 in 1954. There were four buildings on the property, all designed for use in connection with a lumber business operation. The main building, a brick and frame part one- and two-story structure was in the vicinity of the southeast corner of the Berkshire tract and fronted 150 feet on Truman Road. This building, with signs “Jones Lumber Company” prominently displayed thereon, was, prior to the construction of the viaduct, vis-sible to approaching Truman Road traffic for about three blocks in both directions.

As planned and constructed, the roadway of the viaduct is from 12 to 32 feet above and south of the Berkshire tract. As a part of the project, ramps were constructed on either side of both the east and west approaches to the viaduct. These ramps, constructed at approximately the same grade as old Truman Road, permit vehicles to travel beneath the viaduct on the old roadway which was widened approximately 9 feet along the east portion of the Berkshire tract. The northwest ramp, 22 feet in width, adjoins the Berkshire tract on its south border for some 220 feet. The viaduct structure rests on T-shaped concrete piers placed at varying distances along the center of the old roadway. Five such piers, 9 feet wide and 3J4 feet thick, are now located in the old roadway in front of the Berkshire tract. A traffic control island was also constructed in the center of the roadway between the second and fourth pier in front of the Berkshire tract. The island, some 150 feet in length, is 56 feet wide at its west end and approximately 20 feet wide at its east end. The island is in front of one of the three truck entrances to the main building on the tract and makes the westbound traffic lane at that point approximately 22 feet in width.

On the issue of damages, the condemnee’s expert witnesses testified to damages to Berkshire of a minimum of $34,000 and a maximum of $55,000. Condemnee’s witnesses emphasized the reduction in value, resulting from the presence of the viaduct, of the property remaining after the taking. One of the condemnee’s witnesses expressed the opinion that the value of the strip taken was approximately $4,850. However, his estimate of total damage amounted to $48,-000, based upon before and after valuation of the entire tract of $147,000 and $99,000. This witness estimated a “utility loss” of $22,050. According to him, this item was made up of a number of factors, including change in visibility of the property resulting from the construction of the viaduct approach and access. According to the witness, the change in the traffic would result in a loss of 90% of the transient business because of poor visibility and accessibility and reduced grade. Other factors considered were availability, advertising value, traffic trend and restriction of light, sight and air. He also estimated a rental loss of $20,905. This was based upon his estimate of a 28.4% decrease in sales on the loss of “cash and carry” business that would justify rental reduction which capitalized at 10% would amount to approximately $20,000. There was an additional rental loss of $1,500 from advertising signs. Another witness estimated the before-taking value at $149,000 and the after-taking value at $103,760. He placed the value of the land taken at $5,010 and found a 27% loss of value to the remaining property from various factors, including loss of view— “ * * * traffic on the viaduct will not see this building” — loss of advertising value and loss of light and air. Another witness estimated damages at $55,000 based on $5,000 valuation for the land taken and $50,000 loss of rental value.

The city’s witnesses placed the damages at $2,750 and $3,000. The witness stating the former figure gave the property a before-taking value of $87,750 and an after-taking value of $85,000. The city’s witnesses allowed nothing for change of access or loss of traffic flow. Both testified that they took into consideration the loss of light, sight and air, but found no damage from such factors.

The trial court, at the city’s request, gave three damage withdrawal instructions which are here under attack. By Instruction No. 4, no award was to be made “for loss of access or deprivation for loss of access to the viaduct structure.” By Instruction No. 6, the jury was instructed not to take into consideration “any evidence of alleged damages by any owner or claimant herein which may result in a loss of view or visibility of their respective private property from members of the traveling public passing along, on and adjacent to said respective properties on the roadway of the viaduct improvement.” Instruction No. 7 told the jury that it should not make an award or take into consideration “any evidence of alleged damages which may result by reason of a change in the volume of traffic traveling along the existing grade of Truman Road.” Instruction No. 9 was given, reading as follows : “The Court instructs you that in arriving at the difference between the fair market value of the remaining property of condemnees immediately after the taking and the fair market value of the whole property immediately before the taking, you may consider any evidence of damages that will result from deprivation of access to Truman Road by reason of said improvement.”

According to the appellant, the issue presented is whether or not damages may “be awarded in condemnation proceedings for a material decrease of direct access to and public view of an abutting retail business property caused by the condemnor’s erection of an elevated viaduct.”

In our opinion, the answer to the question presented in this case is determined by the principles recently applied by the Court En Banc in State ex rel. State Highway Commission v. Meier, Mo., 388 S.W.2d 855, and State ex rel. State Highway Commission v. Brockfeld, Mo., 388 S.W.2d 862. The latter case reversed the decision (which the appellant here relied upon) of the St. Louis Court of Appeals, 378 S.W.2d 254, in the same case.

In Meier, the court stated (388 S.W.2d 1. c. 857):

“An abutting owner’s property right to ‘access’ is better described as the right of ingress and egress to and from his property and the abutting public highway. The right also includes the further right to connect with or reach the system of public highways, which right is also subject to reasonable restrictions under the police power of the State in protecting the public and facilitating traffic. The right does not include the right to travel in any particular direction from one’s property or upon any particular part of the public highway right-of-way because, after one is upon the highway he has the same right as all other travelers and the right of travel is a public right and controlled by the police power of the State. Nor does the right of ingress or egress to or from one’s property include any right in and to the existing public traffic on the highway, or any right to have such traffic pass by one’s abutting property. The reason is that all traffic' on public highways is controlled by the police power of the State, and what the police power may give an abutting property owner in the way of traffic on the highway it may take away, and by any such diversion of trafile the State and any of its agencies are not liable for any decrease of property values by reason ■of such diversion of traffic, because such damages are ‘damnum absque injuria’, or damage without legal injury.
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“Respondent, as an abutting property owner on a public highway, does not now have and has never had any other property interest in the public highway other than a reasonable right of ingress and egress, as stated. Respondent has never had a property right in the traffic, great or small, on the highway, nor a right to recover damages for a decrease in value of her premises by reason of the diversion of traffic away from her property, nor has she had a property right to have the same amount of traffic pass her property as before or to have it move in the same direction. Respondent’s property right of access has never extended further than the right to enter upon the highway or to leave it and have reasonable connection to the public road system.”

This answers appellant’s claim based upon “material decrease of direct access.” Appellant retains its previously existing right of access to previously established Truman Road and in turn to the city’s streets and highway system. The legal status of such right has in no way been altered by the erection of the viaduct. Admittedly appellant does not have direct access from its property to the viaduct roadway. However, the viaduct roadway does not actually abut appellant’s property and appellant never did have any right of direct access to such roadway. The fact that such access was not accorded does not deprive appellant of any right of access.

The fact that access to the appellant’s property is somewhat more difficult by reason of the construction of traffic islands in front of the property affords no basis for claim for damages to the appellant’s property. Filger v. State Highway Commission, Mo.App., 355 S.W.2d 425.

Appellant contends that as part of its rights attendant to the ownership of the tract adjoining the highway it had an easement for public view of its property from the highway. Appellant cites no Missouri cases holding that the loss of any such claimed right is an element of damage to be considered upon condemnation. Any claim on this basis is inextricably related to a property right in the traffic upon Truman Road. Cases of this state have consistently refused to accord to property owners any right in the continuation of traffic upon an established highway. As stated in Meier, supra, “Respondent has never had a property right in the traffic, great or small, on the highway, nor a right to recover damages for a decrease in value of her premises by reason of the diversion of traffic away from her property, nor has she had a property right to have the same amount of traffic pass her property as before or to have it move in the same direction.” See also State ex rel. State Highway Commission v. Ballwin Plaza Corporation, Mo.Sup., 382 S.W.2d 633, 637.

The court of appeals, in its opinion in Brockfeld, supra, cited with approval and relied upon People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799. In that case, the court held that the owner of property adjacent to a highway on which an underpass was constructed was entitled to have taken into consideration in determining his damages a loss of easement of public view. As above mentioned, the court en banc rejected the court of appeals’ opinion in Brockfeld and inferentially the philosophy of the cases therein relied upon. Ricciardi would seem to have rejected the idea that any dimu-nition in the value of land adjacent to a public improvement resulting from the diversion of traffic past the premises is non-compensable. See Comments, 18 So.Cal. Review 42, 44. See also A. E. Nettleton Company v. State, 11 A.D.2d 899, 202 N.Y.S.2d 102, 104.

We find this case controlled by the principles of Meier and Brockfeld, supra. Therefore, we will not undertake to distinguish or comment upon the many cases, a large number of which are from other jurisdictions, relied upon by appellant. We do note that many of the cases cited by appellant, such as Rourke v. Holmes Street Railway Company, 221 Mo. 46, 119 S.W. 1094 (the first case cited by appellant in support of its point made and, therefore, according to our rules, one of the three principal authorities relied upon by the appellant, Civil Rule 83.05(c), V.A.M.R.), involved the construction of a viaduct by privately owned railroad or street railway corporations. Although appellant states that the distinction between those cases and this, on the grounds of the authority erecting the viaduct, is a distinction without a difference, it is, nevertheless, a distinction which has long been recognized. The basis for this distinction is that a private corporation’s erection of a viaduct over a public street, as pointed out by the quotation from Rourke (Mo.App., 177 S.W. 1102 1. c. 1105) set forth in appellant’s brief, imposes an “unusual and additional servitude” upon an “open public street.” Insofar as a governmental agency which constructs and maintains streets is concerned, it has the right to employ its interest in the right-of-way for highway purposes in any proper manner consistent with such purpose. “What makes street frontage valuable is the fact that people travel over the street, and the abutter cannot complain of improvements that facilitate such travel. He must anticipate, that such improvements will be made, and that changes in the mode of travel will occur.” Kratovil-Harrison, Eminent Domain—Policy and Concept, 42 Cal. Law Review 596, 644. See Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499; Sauer v. City of New York, 206 U.S. 536, 27 S.Ct. 686, 51 L.Ed. 1176.

We are of the opinion that, by the ordinance, properly construed, the city assumed to pay only such damages as the owners of property were by law entitled to receive. We do not find that the ordinance purported to assume an additional liability on behalf of the city. Reference in Section 8 of the ordinance to “deprivation of access” and “damages * * * by denial of access to any public highway” may be explained by the fact that, as to one tract required for the project, right of access thereto from adjacent property was expressly taken. Such fact would likewise account for the giving of Instruction No. 9. Although appellant here complains that such instruction conflicts with Instruction No. 4, no such assignment of error appears in appellant’s motion for new trial. Therefore, we do not consider the matter, raised for the first time on appeal. Miller v. Gulf, Mobile & Ohio R. Co., Mo. Sup., 386 S.W.2d 97, 101-102(7). In any event, since we have concluded that appellant was not entitled to recover for loss of access, we fail to see how the giving of Instruction No. 9 could have done other than benefit appellant.

Appellant contends that the trial court erroneously permitted the city to introduce collateral evidence concerning properties located under other viaducts. Two expert appraisers testified on behalf of the city. Each testified that he found no damage to the appellant from the loss of an easement for light, sight and air. In explaining their conclusions in this regard, in response to questions by counsel for the city, the witnesses testified that they had examined comparable situations involving the operation of lumber yards under three viaducts and that, based upon their knowledge regarding those operations, they concluded that there would be no damage to the appellant on the basis of the loss of light, sight and air easements. There was also testimony regarding operations of other businesses, apparently not lumber businesses, under the Broadway viaduct. Appellant objected to this evidence on the grounds that it related to wholly collateral issues. Although the city offered the testimony, along with five photographs depicting the lumber businesses referred to, on all issues, the court received the evidence “purely as explanatory of the witness’ explanation of loss because of light, sight and air.”

In our opinion, there was no error in the trial court’s ruling. The witnesses, qualified as experts, were explaining the basis for their conclusion that there was no damage based on the loss of light, sight and air. They did not attempt to testify concerning the comparative values of the properties in other locations. They merely sought to show that continued operation of the lumber business would be practical despite the construction of the viaduct. In this respect the evidence differs from that which the court held should have been excluded in State ex rel. State Highway Commission v. Vorhof-Duenke Company, Mo.Sup., 366 S.W.2d 329, 340. There, in an effort to show special benefits, a witness on behalf of the state testified concerning an expenditure which was required to be made at another shopping center to provide ramps and access roads. The inference was that in Vorhof-Duenke the defendant would not be required to make such an expenditure and therefore should be assessed benefits based upon the access facilities which would be provided. Similarly, in Union Electric Light & Power Co. v. Snyder Estate Co., 8 Cir., 65 F.2d 297, 310-311, the condemnor sought to show that market values had increased at a lake construction project. In Rourke v. Holmes Street Railway Company, 221 Mo. 46, 119 S.W. 1094, plaintiff’s witness sought to mitigate the damages to the defendant by testifying to an increase in rentals from other properties in the area along which a street railway line had been constructed. In the cases relied upon by appellant, the comparisons were offered as substantive proof of the value of or benefit to the property taken. Here, the evidence was offered only in support of the experts’ opinion that there was no damage for loss of the particular easement under consideration. There was no error in the admission of the evidence for such purpose. United States v. Johnson, 9 Cir., 285 F.2d 35, 41 (6, 7).

In addition, the jury which heard this matter was a six-man freeholders’ jury. This procedure is authorized by the city’s charter. Article VI, Secs. 149-152. Such a jury in assessingffhe damages is not limited to the evidence actually presented to it as is a common law jury. The freeholders’ jury is authorized, and perhaps required, personally to view the property taken and may arrive at its verdict entirely independent of the testimony which might be offered. Thomson v. Kansas City, Mo.Sup., 384 S.W.2d 518, 523(2, 3); Kansas City v. Jones Store Co., 325 Mo. 226, 28 S.W.2d 1008, 1016. Here the jury awarded the appellant a sum in excess of the value which any of the witnesses attributed to the land actually taken. Inasmuch as the court’s instructions excluded elements of value other than the easement for light, sight and air and the property actually taken, it is reasonable to assume that the jury did not, in any event, accept the opinion of the city’s witnesses that there was no damage for the loss of the light, sight and air easement.

Appellant contends that it should have been allowed interest from November 1, 1962, the valuation date. Just how the valuation date was arrived at is not clear. However, the trial court did state: “The valuation date would be November 1, 1962.” The ordinance had been enacted on October 6, 1961. The ordinance was filed in the circuit court and publication commenced on May 18, 1962. On July 25, 1962, the appellant executed a consent to begin improvement by which it was agreed that the city might enter the property being taken for the purpose of constructing the viaduct, pending the actual transfer of title. The consent states: “This Consent is given in consideration of the agreement of said city to cooperate in obtaining an early adjudication of the compensation for the taking of said property and for the damages of the undersigned caused by construction of said viaduct and in consideration of the fact that time is of the essence in proceeding with said improvement in order that said work may be undertaken during the present construction season.” Construction began around September 20, 1962. The trial on the appellant’s claim was held on November 26 and 27, 1963. The jury was instructed on April 17, 1964 and returned its verdict on April 23, 1964. Appellant offered an instruction under which it would have received interest at the rate of 6% per annum from the city’s commencement of construction of the viaduct. The trial court refused the instruction and the appellant now contends that such action was error. The trial court did allow interest from the date of the final judgment, July 24, 1964, until payment of the amount of the jury’s award into court on August 24, 1964.

The city takes the position that, under its charter (Art. VI, Secs. 156 and 169), interest was payable only from the date of the judgment until the payment of money into the court.

We need not here decide whether or not the city’s liability for interest would be determined solely according to the provisions of its charter. We do note that it has been held that interest for delay in payment is a right of the owner of property subject to eminent domain and is not dependent upon statutory provisions. St. Louis Housing Authority v. Magafas, Mo.Sup., 324 S.W.2d 697, 699. However, in any event, we are of the opinion that the right to interest does not accrue until the property is actually taken from the owner contrary to his will or agreement. Arkansas-Missouri Power Co. v. Hamlin, Mo.App., 288 S.W.2d 14, 16(1). Here the appellant voluntarily consented to the city’s entry upon the land prior to any adjudication in the condemnation proceedings. Having voluntarily surrendered possession of its property to the city without reservation of any claim for interest from the date of such surrender, we are of the opinion that appellant was not entitled to interest from such date and that the trial court properly rejected its offered instruction.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Norman HEIMOS, Appellant, v. Richard McLean BRUCE and Heitz Lumber Company, a Corporation, Respondents.
    No. 50834.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 13, 1965.

      James B. Herd and Deeba, DeStefano, Sauter & Herd and Sullivan & Joyce, St. Louis, for plaintiff-appellant.
    Charles E. Gray, Gray & Sommers, St. Louis, for defendants-respondents.
   HIGGINS, Commissioner.

Action for $100,000 damages for personal injuries in which a jury awarded plaintiff a verdict of $50,000. Defendants’ motion for new trial was sustained and plaintiff has appealed from the order granting a new trial.

On November 2, 1959, plaintiff was operating a pickup truck southwardly on Telegraph Road in St. Louis County and was struck from behind by a truck owned by defendant Heitz Lumber Company and driven by defendant Richard McLean Bruce. Plaintiff charged defendants with negligence of following too closely and under the rear end doctrine, and alleged that such negligence was the cause of injury to his spinal column and nervous system.

The issue of following too closely was submitted by Instruction No. 1:

“The Court instructs the jury that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonably safe and prudent, having due regard for the speed of such preceding vehicle and the traffic upon and the condition of the roadway.
“The Court further instructs * * * that defendants * * * have admitted that on November 2, 1959, defendant, Richard McLean Bruce, as the employee and agent of the defendant, Heitz Lumber Company, while operating a motor truck on Telegraph Road, an open and public highway, came into contact with a motor vehicle being operated by plaintiff; therefore, if you find and believe from the evidence that defendant, Richard McLean Bruce, was operating a motor truck in a southwardly direction on said Telegraph Road, if so, twenty-five feet to the rear of and following the motor vehicle of plaintiff, if you so find, and you further find that plaintiff brought his vehicle to a stop just north of the intersection of Telegraph Road and Bridgeview Lane, if you so find, and if you further find and believe from the evidence that the front end of the motor truck being operated by defendant, Richard McLean Bruce, came into collision with the rear end of the motor vehicle operated by the plaintiff, if so, and if you find that in operating the motor truck twenty-five feet to the rear of the motor vehicle of plaintiff, if you so find, defendants * * * failed to exercise the highest degree of care and were guilty of negligence, if you so find, and if you further find that as a direct and proximate result of defendants’ negligence, if any, the plaintiff was injured, if you so find, and if you further find and believe * * * that plaintiff was not negligent under Instruction No. 3, if you so find, then your verdict will be in favor of the plaintiff, * * (Italics added.)

The issue of negligence under the rear end doctrine was submitted by Instruction No. 2: “The Court instructs the jury that defendants * * * have admitted (etc., as in No. 1) ; therefore, if you find and believe from the evidence that the plaintiff was operating a motor vehicle in a south-wardly direction on Telegraph Road, if so; and you further find that plaintiff brought his motor vehicle to a stop just north of the intersection of Telegraph Road and Bridgeview Lane, if you so find, and if you further find and believe from the evidence that defendant, Richard McLean Bruce, was operating a motor truck in a south-wardly direction on said Telegraph Road, to the rear of and following the motor vehicle of plaintiff, if so, and if you further find and believe * * * that defendant, Richard McLean Bruce, caused, allowed and permitted the front end of the motor truck he was driving, if you so find, to run into and collide with the rear of the motor vehicle operated by the plaintiff, if so, and if you find that in thus operating said motor truck, if you so find, defendants * * * failed to exercise the highest degree of care and were guilty of negligence, if you so find, and if you further find that as a direct and proximate result of defendants’ negligence, if any, the plaintiff was injured, if you so find, and if you further find * * * that plaintiff was not negligent under Instruction No. 3, if you so find, then your verdict will be in favor of the plaintiff, * * (Italics added.)

By Instruction 3-A the jury was instructed: “By the term ‘highest degree of care’ is meant that degree of care that a very careful and prudent person would ordinarily exercise under the same or circumstances similar to those shown by the evidence, and you are instructed that the terms ‘negligent’ and ‘negligence’ as used in these instructions mean the failure to exercise the highest degree of care.”

In their motion for new trial defendants charged that the court erred in giving Instruction No. 1 because it submitted general negligence, permitted the jury to speculate as to defendants’ negligence, and permitted a finding of negligence in any respect without limiting the finding to specific conduct submitted in the instruction; and that Instruction No. 2 was error because it permitted the jury to find in favor of plaintiff if defendants were negligent in' any respect without limiting defendants’ negligence to specific conduct submitted in the instruction. The trial court sustained the motion for new trial “on the grounds of error in Instructions Nos. 1 and 2.”

In support of the court’s ruling respondents argue that the negligence submitted in the italicized portion of Instruction No. 1 is not linked by reference to the alleged act of permitting the front of defendants’ vehicle to collide with the rear of plaintiff’s vehicle and that, by the italicized portion, the instruction submits general negligence and is not limited to the alleged negligence mentioned in the preceding portion of the instruction. They argue similarly that the italicized portion of Instruction No. 2 causes the instruction not to limit the jury to the alleged negligence of defendant Bruce in following 25 feet to the rear of plaintiff and thus submits general negligence.

In Endermuehle v. Smith, Mo., 372 S.W.2d 464, an instruction was held erroneous in a situation directly in point and decisive here. There the court submitted defendant’s counterclaim on plaintiff’s specific primary negligence in failing to yield the right of way by Instruction No. 5: “The Court instructs the jury that if you find and believe * * * that defendant was operating an automobile eastwardly on Hoffmeister Avenue in the exercise of the highest degree of care and that plaintiff was operating an automobile southwardly on Reed Avenue and was to the left of defendant, and if you find that both vehicles entered the intersection at approximately the same time and thereafter collided ;

“And if you further find and believe, that when plaintiff was approaching said intersection plaintiff saw or in the exercise of the highest degree of care could have seen defendant approaching said intersection and knew or should have known that said vehicles would reach the intersection at about the same time, then the Court instructs you that it was the duty of plaintiff to yield the right of way to defendant;
“The Court further instructs you, that if you find and believe that plaintiff in fhe exercise of the highest degree of care could have yielded the right of way to defendant but failed to do so, then the Court instructs you that plaintiff was negligent in operating her automobile;
“And if you find and believe, that the negligence if any, of plaintiff directly caused the collision and the automobile operated by defendant to be damaged, then your verdict must be for defendant on her counterclaim * * *, unless you find for plaintiff under Instruction No. 3.”

That court also gave Instruction No. 2:

“ * * * that under the law every person operating a motor vehicle on the public highways * * * shall exercise the highest degree of care, that is to say, with the degree of care which a very careful and prudent person would exercise under the same or similar circumstances, and the Court further instructs the jury that the failure to exercise such care constitutes negligence on the part of any person so operating an automobile.”

The court noted that Instruction 5 contained three hypotheses of specific primary negligence which were not actually complete “severally each in itself” and that the third hypothesis and a final paragraph were linked by “and.” “Nevertheless, we have the opinion the ‘negligence’ spoken of in the fourth paragraph is not, in the fourth paragraph, linked by clear reference to the ‘specific primary negligence’ hypothesized in the preceding three paragraphs of the instruction * * *.

“It may be that the drafter of the instruction (No. 5) inadvertently left out some such word as ‘aforesaid’ as qualifying the word ‘negligence’ spoken of in the fourth paragraph. But, regardless of how the omission came about, the fact is that such a word isn’t there. And the omission of some such word as ‘aforesaid’ in qualifying the word ‘negligence’ in the fourth paragraph brings into play and perverts the intended incidence and effect of the expression ‘if any’ immediately after the word ‘negligence’ in the fourth paragraph.

“We know the purpose of the expression ‘if any,’ interposed in an instruction, is usually to make clear to a jury that some hypothesized fact preceding the expression ‘if any’ is to be understood by the jury as submitted to the jury and not by the trial court assumed to be true; and no doubt this was the purpose of the drafter of Instruction No. 5. But the ‘negligence’ spoken of in the fourth paragraph not clearly referring to the specific primary negligence hypothesized in the first three paragraphs, the expression ‘if any’ in its setting in ‘negligence, if any, of plaintiff’ readily could be interpreted by a juror, a layman of average intelligence, as meaning ‘any negligence of plaintiff.’

“ * * * the jury’s view readily could have been confused and distorted into believing that they, the jurors, were to consider any kind of conduct, act or omission, of plaintiff — antecedent or primary or contributory, and whether or not specifically submitted, that they, the jurors, thought was in the failure to exercise the highest degree of care and which they, the jurors, thought should be decisive on the factual issues of causal negligence.” 372 S.W.2d 464, 1. c. 468-9 [9]. See also Jones v. Jones, Mo.App., 384 S.W.2d 807, 811 [1].

Appellant contends that Instruction No. 1 is not error because it is virtually the same as approved for a submission of following too dosely in Gooch v. Avsco, Inc., Mo., 337 S.W.2d 245, 250 [5], and that Instruction No. 2 is patterned after the instruction submitting the rear end doctrine in Witherspoon v. Guttierez, Mo., 327 S.W. 2d 874, 877, and in Croney v. Pence, Mo.App., 346 S.W.2d 574, 575-6 [1]. Examination of those instructions shows that they do not contain the error which exists in Instructions Nos. 1 and 2 of this case. In Gooch v. Avsco, Inc., supra, the finding in the place of the italicized portion of Instruction 1 was “and that such negligence, if any, directly caused * * * plaintiff’s injuries.” In Witherspoon v. Guttierez, supra, the finding required in the place of the italicized portion of Instruction 2 was “and if you further find that said negligence, if any, * * * caused * * * defendant’s automobile to collide * * * ”; and in Croney v. Pence, supra, the required finding was “and that as a direct result of such negligence, if any you find, on the part of the defendant * * Thus, all of those cases contained a reference to the preceding hypotheses of negligence, which is omitted in our Instructions 1 and 2.

Retrial of this case will be under Missouri Approved Jury Instructions, and we note that MAI 17.16 for the submission of the rear end doctrine and MAI 17.09 for the submission of following too closely in connection with MAI 17.01 and 17.02, also require the use of the word “such” in linking the hypothesis of negligence to resulting injury. See also Missouri Civil Instructions (§ 9.12), Causation, p. 121.

Accordingly, for error in the giving of Instructions Nos. 1 and 2, the order granting a new trial is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: WESTHUES, Special Commissioner.

text:
    STATE ex rel. GREAT LAKES PIPE LINE COMPANY, a corporation, Respondent, v. Martin C. HENDRICKSON, As Village Clerk of the Village of Lone Jack and a Member of the Board of Trustees Thereof, Richard V. Brown, Rick Carrico, James S. (Steve) Parker and Don Muncy, as Members of the Board of Trustees of the Village of Lone Jack, Appellants.
    No. 51266.
    Supreme Court of Missouri, Division No. 1.
    Aug. 20, 1965.

      Milton B. Edmonson, Kansas City, for appellants.
    Swanson Midgley Jones Blackmar & Eager, Ralph M. Jones, Donald H. Loudon and William C. Nulton, Kansas City, Leon B. Seek and Robert S. Burns, Kansas City, of counsel, for respondent.
   WESTHUES, Special Commissioner.

The State of Missouri, at the relation of Great Lakes Pipe Line Company, a corporation, filed a proceeding in mandamus in the Circuit Court of Jackson County, Missouri, seeking a writ to compel the Village Clerk of Lone Jack to issue a permit authorizing construction of a pumping station within the limits of the Village. The trial court issued the writ prayed for. A motion for rehearing was overruled and the Clerk and the Board of Trustees of the Village appealed. The appeal was granted to the Kansas City Court of Appeals. That court transferred the cause to this Court on the theory that more than $15,000 was involved. The record justifies the order of transfer.

Relator Great Lakes Pipe Line Company, the operator of a pipe line transporting petroleum products, supplies heating oils and vehicular fuels for public use.

The respondents named in relator's petition are Martin C. Hendrickson, the Clerk of the Village of Lone Jack, who is also a member of the Board of Trustees, and the other members of the Board of Trustees, Richard V. Brown, Rick Carrico, James S. Parker, and Don Muncy. The 1960 U. S. census states that the population of Lone Jack is 220.

The trial court made a finding of facts which we find to be amply supported by the evidence and which we have seen fit to quote in full, omitting only the description of the land upon which Great Lakes Pipe Line Company seeks to locate the pumping station. It reads:

“This action having duly come on for trial on September 1, 1964, and the return of the respondents to the alternative writ of mandamus heretofore issued thereupon being submitted to the Court, and evidence having been presented on said day on behalf of the relator, the respondents presenting no evidence, and the Court having taken said proceeding under advisement.
“Now on this 8th day of September, 1964, the Court hereby finds the issues in favor of the relator and that respondents have not shown any just cause why a peremptory writ of mandamus should not issue as prayed by the relator.
“The Court does further find as follows:
“1. That Relator is a public utility with statutory power of eminent domain in Missouri to acquire right of way for pipelines, but not for the erection of pumping stations.
“2. That Relator acquired the one acre tract in question located within the limits of the incorporated Village of Lone Jack at the southwest perimeter thereof for the installation of a pumping station on its new line from Olathe, Kansas, to Columbia, Missouri, after having been advised by the Village attorney that it had no zoning regulations and none were presently contemplated.
“3. That Relator entered a contract for the construction of the station and the contractor in June of 1964 commenced work on the site prior to July 21, 1964, by grading the same, erecting a small building for use during construction, moving equipment thereon, excavating and pouring concrete foundation for the engine and pump. In addition to the $3,500 paid for the land, it had spent or committed itself to July 7, 1964 a total of $64,752.76.
“4. On July 7, 1964, respondents enacted a zoning ordinance placing the site in a district classified as ‘R-l’ Single-Family, which permitted farm buildings and agricultural use.
“5. Relator did not learn of the enactment until July 21, 1964, and filed on July 23, 1964, its application for certificate of occupancy and compliance and for building permit with respondent Martin C. Hen-drickson, Village Clerk, pursuant to Article XIV of the zoning ordinance.
“6. Relator had established a non-conforming use of the tract for the purpose of a pumping station prior to the enactment of the ordinance, had a vested right thereto, and Relator’s application met all the requirements of the ordinance and was accompanied by the proper fee.
“7. Respondent Hendrickson was requested to issue the certificate and permit but declined to do so.
“8. The respondents at a special meeting on July 25, 1964 established a Board of Zoning Adjustment and referred the application to it for investigation if for the betterment of the Village.
“9. That Board made a unanimous recommendation to the respondents in writing on July 31, 1964 that the application be granted with a condition as to the noise level.
“10. At a regular meeting of the respondents on August 11, 1964 they unanimously rejected Relator’s application.
“11. The station site is unimproved pasture land on a county road with the nearest residence over a quarter of a mile distant, and the use for a pumping station is reasonable.
“12. Respondents’ action is unreasonable, arbitrary and capricious, is without authority under the ordinance, and is unconstitutional and void as depriving Relator of the use of its property without due process of law.
“13. It was the duty of respondent Hendrickson to issue the certificate and permit.
“WHEREUPON, it is by the Court considered and adjudged that a writ of peremptory mandamus be and is hereby issued to the respondent Martin C. Hendrickson, Village Clerk of the Village of Lone Jack, directing him immediately upon receipt of the writ to issue Relator a certificate of occupancy and compliance and for a building permit to allow the construction of and use by Relator of a petroleum products pipeline pump station on the following described property: * * * in accordance with its application therefor, and that Relator have and recover its costs from respondents and have execution therefor.”

The respondents named in the petition are appellants in this Court. They will hereinafter be referred to as the “Village.” The relator in the court below is the respondent in this Court. It will hereinafter be referred to as “Great Lakes.”

The first contention briefed by appellants is that the trial court erred in granting a writ of mandamus because Great Lakes had not exhausted its legal remedies by way of an appeal from the refusal to issue a permit. It is there said that mandamus is not the proper remedy to review a discretionary power. The answer to this question depends upon whether the duty of the Village Clerk to grant Great Lakes’ application and to issue a permit was discretionary or ministerial. 55 C.J.S. Mandamus § 63, p. 100. It is our opinion that the duty was ministerial in the circumstances of this case.

The evidence disclosed that Great Lakes applied to the Jackson County authorities for a permit before it began building a pumping station. Great Lakes was informed that the county authorities had no jurisdiction because Lone Jack had been incorporated. This incorporation had occurred in December, 1963. Great Lakes then inquired if a zoning ordinance had been enacted. An attorney acting for the Village informed Great Lakes that no such ordinance had been enacted and none was contemplated at that time.

Great Lakes then began constructing a pumping station. While this was in progress, it was learned that an ordinance had been enacted. Great Lakes then applied to the Clerk of the Village for a permit on the theory that its pumping station came within the provisions of the Village ordinance which provides in part, under Article II, as follows:

“32. Non-Conforming Use: Any building or land lawfully occupied by a use at the time of passage of this Ordinance or amendment thereto, with the use regulations of the district in which it is situated.”

Article X, Section 2, of the Ordinance, provides in part as follows: “The lawful use of a building existing at the time of the effective date of this Ordinance may be continued although such use does not conform to the provisions hereof. * * * ”

Article XIV, Section S, provides that “Building permits shall be obtained from the Village Clerk and displayed in the area where construction is to be made.”

The only excuse given by the Clerk for not issuing the permit was that the attorney for the Village had asked him not to do so. The Village at no time ever informed Great Lakes of any legal grounds for refusing to issue a permit.

The evidence of Great Lakes at the trial was that the nearest residence to the site of the station was one fourth of a mile; that a person standing at the site could not see any residence in any direction; that the sound of the motors could not be heard beyond 300 feet. The first street intersection was a quarter of a mile in one direction and two miles in the other direction. At the time the ordinance was passed, Great Lakes had spent and obligated itself in an amount in excess of $64,000. None of this evidence was refuted. The refusal to grant a permit, in our opinion, was arbitrary and without justification or excuse. The trial court so found and the evidence supports that finding. As we noted supra, it was the duty of the Village Clerk to issue the permit and this duty was ministerial and not discretionary. See State ex rel. Folkers v. Welsch, 235 Mo.App. 15, 124 S.W.2d 636, 1. c. 639 (1, 2); State ex rel. Gerig v. Graves, Mo.App., 171 S.W.2d 778 ; 55 C.J.S. Mandamus § 156, p. 295.

In its brief, the Village stated that the Court should not have issued the writ because there was no substantial evidence of a pre-existing non-conforming use, the only evidence being of vague and indefinite expenditures. To this we cannot agree. The unrefuted evidence was that Great Lakes had acquired a site and completed a portion of the structure and had obligated itself to the extent of over $64,000. All this was before the zoning ordinance was passed. We rule that the evidence supported the trial court’s finding that Great Lakes had established a non-conforming use prior to the enactment of the zoning ordinance.

In 101 C.J.S. Zoning § 186, p. 943, it is stated, “A structure in the course of construction at the time of the enactment of the ordinance is protected as a nonconforming use, but mere preliminary work which is not of a substantial nature does not constitute a nonconforming use.<¡’ That rule is supported by numerous cases. See Amereihn v. Kotras, 194 Md. 591, 71 A.2d 865, 1. c. 868, 869(1-3) (4); Meuser v. Smith, Ohio App., 141 N.E.2d 209, 1. c. 211(1); County of Du Page v. Elmhurst-Chicago Stone Co., 18 Ill.2d 479, 165 N.E.2d 310; Board of County Commissioners of County of Sarpy v. Petsch, 172 Neb. 263, 109 N.W.2d 388 1. c. 390, 391(1) (2) (3, 4); Daoud v. City of Miami Beach, 150 Fla. 395, 7 So.2d 585.

We rule that the trial court had jurisdiction and that mandamus was proper. The evidence amply supports the findings made by the trial court and the judgment of the circuit court awarding the peremptory writ of mandamus is hereby affirmed'.

PER CURIAM:

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

All of the Judges concur.


text:
    John David RADER, Plaintiff-Appellant, v. John Ernest TURNER and Continental Baking Company, a Corporation, Defendants-Respondents.
    No. 50976.
    Supreme Court of Missouri, Division No. 1.
    Sept. 13, 1965.
    Scott O. Wright, Herbert C. Willbrand, Brown, Wright & Willbrand, Columbia, for plaintiff-appellant.
    Howard F. Major, Wade H. Ford, Jr., Columbia, for defendants-respondents.
   HENRY J. WESTHUES, Special Commissioner.

This case was filed in the Circuit Court of Boone County, Missouri, wherein plaintiff John David Rader asked damages in the sum of $35,000 for personal injuries sustained when a truck of the defendant Continental Baking Company driven by defendant John Ernest Turner collided with a car in which plaintiff was riding. Upon a trial, a jury found for the defendants. A motion for new trial was filed and overruled. Plaintiff appealed to this Court.

Plaintiff has briefed two points claiming that the trial court erred. The first point is based upon alleged misconduct of defendants’ counsel in making statements and comments concerning certain photographs and in exhibiting a photograph to the jury before it was admitted in evidence as an exhibit. The second point concerns an instruction on the burden of proof given by the trial court on the defendants’ behalf.

The case was submitted to the jury upon humanitarian negligence.

As to many facts pertaining to the collision, there was little dispute in the evidence of the witnesses for plaintiff and the defendants. The facts not in dispute were as follows: The collision occurred at about 6:00 a. m., on January 22, 1962, 2J4 miles north of Columbia on Highway 63. Plaintiff was riding in a Mercury Comet which was being driven by plaintiff’s wife south on Highway 63 toward Columbia. The defendant Turner was driving a truck loaded with bakery products north on Highway 63. The weather was cold; snow covered the ground; and the roadway was covered with ice and was very slick. It had been misting or was at the time of the collision, causing car windows to be covered with frost or ice. It was dark and lights were on on both the car and the truck. The point of impact on the roadway was about midway of an incline or hill about 1000 feet in length. Immediately prior to the collision, plaintiff was going south and upgrade while defendants’ truck was proceeding north and downgrade. Plaintiff’s car, while going up the hill, skidded on the slick pavement and crossed over to the left or east side of the road. The front of the car came to rest in a ditch and the rear portion was in the northbound lane. The truck struck the car near the right rear wheel. It was admitted that plaintiff sustained injuries as a result of the collision.

The dispute in the evidence was as to the distance the defendant truck driver was from plaintiff’s car when he saw or should have seen and discovered that plaintiff’s car was out of control and in danger of being struck by the truck.

Plaintiff testified that at the time the car went out of control the defendants’ truck was at the crest of the hill; that he noticed the lights of the truck at that time. The distance to the top of the hill was about 400 feet or more. Plaintiff’s wife testified that she saw the lights of the truck just before the truck reached the crest of the hill when her car went out of control. On cross-examination, she testified as follows:

“Q Will you come over here and mark on that plat where you say that truck was over there when you started to skid — will you mark over here?
“A Well I just don’t know.
“Q You say it was up around the top of the hill?
“A. Yes, on the top of the hill.
“Q All right, could you say about where this truck was when you went off of this pavement here before the accident happened?
“A Well I just don’t know.
“Q You don’t know?
“A I don’t know.
“Q You wouldn’t say where it was?
“A No, I wouldn’t say.
“Q You wouldn’t say whether it was 50 feet, 75 or a hundred?
“A I would say it was fifty or seventy-five but I don’t know.
“Q You say the truck was maybe 50 or 75 feet away when you crossed over here and went into that position over here ?
“A I’d just rather tell the jury that I just don’t know.”

Defendant Turner testified that at the time plaintiff’s car turned to the east and across the pavement it was impossible to avoid a collision.

There was evidence introduced by defendants and plaintiff that the windshield of the car in which plaintiff was riding was covered to some extent with ice and frost. The extent of coverage by the ice or frost was in dispute. Plaintiff testified that he cleaned the windshield before they left home, except that some frost was left near- the edges. Plaintiff’s wife, the driver, testified there was sufficient space clear on the windshield to permit her to see the roadway and up the roadway for oncoming cars. Defendants had taken pictures of the car after it had been towed to Columbia. While plaintiff was on the witness stand, he was cross-examined. It was during this cross-examination that the alleged misconduct, of which plaintiff complains, began. Plaintiff was shown a photograph of the car which showed that the windshield was covered with ice except for a round space in front of the driver’s seat. He was asked if that was a true picture of the car. Plaintiff answered that the windshield of his car at the time of the accident was in a much better condition than that shown in the picture. Plaintiff was asked by defendants’ counsel to “Hold that up so the jury can see it.” At this point, plaintiff’s counsel objected, stating that no showing had been made when the picture was taken. The trial court sustained plaintiff’s objection. On another occasion, when a witness for the defendants was being asked to identify exhibits, plaintiff’s counsel objected because the witness did not of his own knowledge know whether the picture was a photograph of plaintiff’s car showing its condition at the time of the collision. At this point, defendants’ counsel stated, “Don’t you want the jury to see these pictures?” After some argument between the attorneys, the court sustained plaintiff’s objection. This same matter was referred to on several other occasions. Finally, at about the close of the trial, the trial court ruled on the admissibility of the exhibits in the following manner:

“MR. WRIGHT: If the Court please, I don’t have any objection to the showing of the pictures here of the damage to the rear of the automobile. I do object to these pictures as showing the condition of the windshield because there is no showing that that was the condition of the windshield at the time the accident happened. I object to the introduction of the pictures. All the evidence has been that this is not representative of the way it looked out there.
“THE COURT: The objection will be sustained.”

There was an unusual amount of bickering between the attorneys for the respective parties during the trial which should not have been permitted. In our opinion, the exhibits which were a number of photographs of plaintiff’s car were of little value as evidence. It was agreed by all parties that the truck collided with plaintiff’s car; that the windshield was partially covered with frost or ice; further, that there was a clear space sufficient to permit the driver to operate the car. Even the exhibits disclosed that fact. The argument between counsel over these exhibits was uncalled for. The trial court in overruling the motion for new trial evidently was of the opinion that plaintiff’s cause was not prejudiced. We cannot say that the trial court abused its discretion. 54 C.J.S. Appeal and Error § 1611, p. 113; Hancock v. Kansas City Terminal Ry. Co., 347 Mo. 166, 146 S.W.2d 627, 1. c. 629, 630(2).

Under point two of plaintiff’s brief, it is stated, “The Trial Court Erred in Giving Instruction No. C, Requested by the Defendant.” Instruction C reads as follows:

“The Court instructs the jury that the charge laid by the plaintiff against the defendant John Ernest Turner is one of negligence. Recovery may not be had on a charge of negligence except when such charge is sustained by the preponderance, that is, the greater weight of the credible evidence. It does not devolve upon the defendant John Ernest Turner to disprove said charge, but rather the law casts the burden of proof in reference to said charge upon the plaintiff and said charge of negligence must be sustained by the preponderance, that is, the greater weight of the credible evidence. If, therefore, you find the evidence touching the charge of negligence against the defendant John Ernest Turner as submitted in other instructions herein does not preponderate in favor of the plaintiff or is evenly balanced, then in either event, the plaintiff is not entitled to recover and your verdict must be in favor of the defendants John Ernest Turner and Continental Baking Company.”

The above assignment of error does not state or indicate any defect in the instruction. Reading the argument in plaintiff’s brief, we note that plaintiff stated therein that Instruction C “is worded in such a manner as to confuse and mislead the jury and thereby cast a greater burden of proof upon the Plaintiff than is required by the law.” At another place in the argument, it is stated that the instruction would lead the jury to believe that only plaintiff’s evidence should be considered in .determining whether or not plaintiff has upheld his burden of proof. In support of his argument, plaintiff cited the cases of Rouchene v. Gamble Construction Company, 338 Mo. 123, 89 S.W.2d 58; Ledkins v. Missouri-Kansas-Texas Railroad Company, Mo., 316 S.W.2d 564; Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174; Barr v. Missouri Pacific Railway Company, Mo., 37 S.W.2d 927; and Trower v. Missouri-Kansas-Texas R. Company, 347 Mo. 900, 149 S.W.2d 792.

We have examined the above-mentioned cases cited by plaintiff and do not find wherein they support plaintiff’s contention. In the Barr and Chaar cases, an instruction was held to be erroneous for the reason that by the instruction the jury was informed that only plaintiff’s evidence was to be considered in determining whether the plaintiff had sustained the burden of proof. Note that in the Barr case, 37 S.W.2d 1. c. 930(12-14), the instruction read “ ‘if * * * you find that the credible evidence offered on behalf of the plaintiff is equally balanced with the credible evidence offered on behalf of the defendant, * * ” It was this clause that was disapproved. A similar ruling was made in the Chaar case. See 263 S.W. 1. c. 177(4). In the Rouchene case supra, this Court condemned a clause in an instruction on the burden of proof which read that if “ ‘the truth as to the charge of negligence remains in doubt in your mind.’ ” See 89 S.W.2d 1. c. 63(11).

In the Ledkins case, 316 S.W.2d 1. c. 569 (8), we stated that this Court had often admonished trial lawyers that instructions on burden of proof should be short and simple, advising a jury that a plaintiff has the burden of proving his case by a preponderance, that is, the greater weight of the credible evidence. The admonition seems to have fallen on deaf ears.

Instruction C, now before us, may be described as lengthy and a sort of argument to the jury. However, it does not contain any misstatement of law. Instructions similar to Instruction C but which contained clauses such as “to the satisfaction of the jury” have been condemned. Instruction C does not contain any such clause. The question of whether such clauses were proper was fully considered in the case of Bell v. Pedigo, Mo., 364 S.W.2d 613, where it was definitely ruled that instructions containing clauses such as “to the satisfaction of the jury” were erroneous and should not be given.

This is a case wherein the trial jury found by its verdict that the defendants were not guilty of humanitarian negligence. There being no prejudicial error in the record, the judgment should be and it is hereby affirmed.

PER CURIAM.

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

HYDE, P. J., and HOLMAN and HENLEY, JJ., concur.

DONNELLY, J., not participating because not a member of the Court when the cause was submitted.