author: GEORGE P. ADAMS, Special Commissioner.

text:
    DeGRENDELE MOTORS, INC., a Corporation, (Plaintiff) Appellant, v. Ralph REEDER, (Defendant) Respondent.
    No. 31530.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.
    Rehearing Denied Oct. 26, 1964.
    Richard M. Stout, Kent E. Karohl, St. Louis, for plaintiff-appellant.
    Harold A. Thomas, Jr., St. Louis, for defendant-respondent.
   GEORGE P. ADAMS, Special Commissioner.

Plaintiff-appellant seller, DeGrendele Motors, Inc., sued defendant-respondent buyer, Ralph Reeder, in a magistrate court of St. Louis County, Missouri, to recover on a check given plaintiff by defendant for some repairs on a car which plaintiff sold him. The prayer of a counterclaim filed by defendant, based on breach of warranty, was in excess of the magistrate court jurisdiction and the cause was certified to the Circuit Court of St. Louis County under the provisions of Section 517.240(2) RSMo 1959, V.A.M.S.

In the Circuit Court plaintiff recovered $329.30 on the check and defendant recovered $716.00 on his counterclaim.

Plaintiff has appealed from the judgment on the counterclaim. Defendant has not appealed from the judgment on plaintiff’s petition.

The evidence most favorable to defendant discloses that under date of June 15, 1957 defendant signed a “New Car Order” for the purchase of a new 1957 model Studebaker Scotsman stationwagon providing, in part, as follows:

“It is agreed that this car is purchased by me, subject to the Manufacturer’s Warranty which is printed on the reverse side hereof and is a part of this order and agreed to the same as if it were printed herein above my signature; and it is the only Warranty either expressed or implied made under this order.”

The “Manufacturer’s Warranty” printed on the “reverse side” is, in part, as follows:

“The Manufacturer Warrants each new motor vehicle manufactured by it, to be free from defects in material and workmanship under normal use and service, their obligation under this warranty being limited to making good at their factory or authorized service station any part or parts thereof, including all equipment or trade accessories (except tires) supplied by the car manufacturer, which shall, within ninety (90) days after delivery of such vehicle to the original purchaser, or before such vehicle has been driven four thousand (4,000) miles, whichever event shall first occur, be returned to the Manufacturer with transportation charges prepaid, and which their examination shall disclose to their satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties, expressed or implied, and of all other obligations or liabilities on Manufacturer’s part, and they neither assume nor authorize any other person to assume for them any other liability in connection with the sale of their vehicles.”

On June 21, 1957, the car was delivered to defendant.

A i'Dealer Service Policy for Studebaker Owners” was in the glove compartment of the car when defendant took delivery. In this “policy” the dealer warranted “ * * * each part of each Studebaker-Packard Corporation product * * * ” to be free under normal use and service from defects in material and workmanship until the product had been driven, used or operated for 4,000 miles or for a 90-day period, and provided: “This Warranty is expressly in lieu of all other warranties, expressed or implied, and of all other obligations or liabilities on the part of Dealer and Studebaker-Packard Corporation.”

On various dates from August 19, 1957 to March 11, 1959, with mileage readings from about 2,000 miles to 21,000 miles, defendant returned the car for servicing with complaints of defective brakes, poor engine operation, poor gas mileage, oil leaks, rattles, defective accelerator, defective float level and timing and a missing “hillholder.” Because of the view we take of this case, it is not necessary to further detail these complaints or their merits.

In defendant’s counterclaim as originally filed, he alleged:

“3. That at the time of said sale, as a part thereof, and to induce defendant to agree thereto, plaintiff warranted that the said automobile was a new automobile in proper mechanical working condition; that it was manufactured by a competent, qualified manufacturer of automobiles; that it was properly manufactured and assembled by competent experienced workmen, contained mechanically proper parts and equipment, and that the said automobile and all the parts thereof were reasonably fit for the purpose and use for which such automobile was manufactured, sold, and purchased.”

During the trial, over objection of plaintiff, defendant was permitted to amend this paragraph of the counterclaim to read:

“That at the time of said sale, as a part thereof, and to induce defendant to agree thereto, plaintiff impliedly warranted that the said automobile was * * * reasonably fit for the purpose and use for which such automobile was manufactured, sold, and purchased.”

Plaintiff then amended its reply to the counterclaim by adding a new paragraph pleading the “Standard Warranty” on the reverse side of the “New Car Order” as an affirmative defense to defendant’s claim of a breach of an implied warranty.

At the close of defendant’s evidence, which was at the close of all the evidence, plaintiff’s motion for a directed verdict was overruled.

The issues under the counterclaim were submitted to the jury under the theory of an implied warranty of fitness, and a verdict on the counterclaim was returned for defendant as hereinbefore stated.

After entry of judgment, plaintiff filed its Motion for new trial or for entry of Judgment in accordance with its motion for a directed verdict made at the close of Defendant’s evidence. These motions were denied and plaintiff appealed.

By the “New Car Order” the parties entered into a contract containing an express disclaimer of any warranty other than that provided for in the “Standard Warranty” contained, in said contract. Proof of, or reliance upon, an implied warranty of fitness was thereby precluded. Hargrove v. Lewis, Mo.App., 313 S.W.2d 594, 595 (1).

By the terms of this “order” or contract, defendant agreed that he took the car “subject to the Manufacturer’s Warranty,” which was made a part of the order, and that it was “the only warranty either expressed or implied made under this order.”

Defendant seeks to avoid the effect of this contract on three grounds.

First, citing Miller v. Andy Burger Motors, Inc., Mo.App., 370 S.W.2d 654, he says that “ * * * There is no evidence that attention was called to it, that it was discussed, or that it played any part in the purchase * * *and that “ * * * such document was delivered, received, and intended solely as a purchase order, no more. * * * ”

Defendant testified that in order to “obtain” the car he had to sign the order; that he did sign it; and that the car was delivered to him. By the order that he admitted signing he “agreed” that the car was “purchased” by him subject to the Manufacturer’s Warranty and that it was “the only warranty” made under the order. Certainly the order played a very essential part in the purchase of the car — the very foundation of the whole transaction.

The facts in this case are quite different from those in Andy Burger Motors. There the “sale and purchase” had been agreed to and two days later the seller delivered to the buyer an “Authorized Ford Dealer’s 1957 Ford Vehicle Service Policy” which contained a “parts warranty” and a disclaimer of other warranties. An inspection of the files in that case discloses that this document was not signed by the buyer, nor did it purport to be an “agreement” on the part of the buyer.

The “New Car Order” in this case is very similar to the instrument in Hargrove v. Lewis, supra, 313 S.W.2d at page 595. The buyer had signed a contract in which it was stated: “It is understood that the Allis-Chalmers machinery is sold by the Dealer (defendants) with the standard warranty of the Manufacturer, set forth in full on the reverse side hereof. This warranty is the only warranty either express, implied, or statutory, upon which said machinery is sold.” The warranty printed on the “reverse” side of this contract was a warranty to repair or replace defective material and was followed by another statement that “this warranty to repair is the only warranty either express, implied, or statutory, upon which said machinery is sold.”

Affirming the Trial Court’s action in setting aside a judgment for the buyer against the seller in accordance with the seller’s motion for a directed verdict, the Springfield Court of Appeals said, 313 S.W.2d 1. c. 595 (1):

“In setting aside the judgment obtained by plaintiff on that theory and in entering judgment for defendant, the trial court followed a long line of Missouri cases holding that, where the parties to a sale have entered into a written contract, complete on its face, and there is no fraud, accident or mistake, an express contractual disclaimer of any warranty other than those specifically provided in the written contract precludes proof of, or reliance upon, an implied warranty of fitness.” (Citing cases.)

In defendant’s second effort to avoid the effect of this contract he says: “The evidence in fact shows that the documents relied on by Appellant (new car order and dealer’s service policy) both stated on their face that they were void and invalid unless signed by DeGrendele, and that DeGrendele never signed either one!” This is a little inaccurate in that the “new car order” provided that “ * * * This order is not valid unless accepted by an officer of this Company * * *(Emphasis supplied.) The order was “accepted” by the company by the delivery of the car and its receipt of the purchase price.

The “New Car Order” was very simply an offer by defendant to purchase the car for a certain price, to be paid in a specified manner (car trade-in and cash) under certain terms (stated therein), including the expressed and exclusive warranty. Plaintiff accepted the offer and an executed contract came into being by which plaintiff and defendant were bound — buyer to pay purchase price and seller, in performance of its warranty that the car was “free from defects in material and workmanship under normal use and service,” to make “good at their factory or authorized service station any part or parts” which should within the period of the warranty prove defective.

Finally, defendant says, “ * * * the Court should note that the latest decisions hold that public policy prohibits the seller from avoiding the implied warranty imposed by law by using the express warranty ‘disclaimer’ device,” and cites State Farm Mutual v. Anderson-Weber, Inc., Iowa Supreme Court, 252 Iowa 1289, 110 N.W.2d 449. The fact that the State of Iowa has a statute covering the subject is sufficient to distinguish that case from this. But even more important, such a ruling is directly in conflict with the holdings in Hargrove v. Lewis, supra, and the cases cited on page 595 of that opinion.

In Nemeth v. Becker Roofing Co., Mo.App., 151 S.W.2d 559, 563-564(2, 3) cited in Hargrove, this Court, in passing on the Illinois law holding that disclaimer of warranties included those implied by law, said that such a doctrine “ * * * does not conflict with the public policy of this state * * * ” and that if “ * * * the parties so desire to contract, we see no objection in law to their doing so.”

What we have said is in response to the issues arising from the specific facts presented here, where plaintiff seeks to recover damages for the difference between the actual value of the car and the value “as warranted.” These issues do not involve products “which have caused injury to persons and property by reason of defects in construction or assemblage, which rendered such products imminently dangerous when used for the purpose for which they were manufactured and sold,” the subject of a number of cases extending the exception to the rule requiring privity with the warrantor. Morrow v. Caloric Appliance Corporation, Mo., 372 S.W.2d 41, 53; Worley v. Procter & Gamble Mfg. Co., 241 Mo.App., 1114, 253 S.W.2d 532; Smith v. Ford Motor Company, Mo.App., 327 S.W.2d 535, 538, (distinguishing a suit for damages for replacements and repairs to a car from one where “there has been an injury and an element of tort present.”)

Whether a “disclaimer” of any implied warranty should or should not be recognized in such personal injury or property damage cases is not within the scope of this opinion. An answer to these issues must await a case directly involving them.

In the meantime, as an aid in forecasting this answer, reference should be made to the new Uniform Commercial Code, V.A.M.S., Section 400.1-101, effective July 1, 1965, which has some provisions that might be relevant to the subject Sections 400.2-313 through 400.2-318.

The trial court erred in failing to sustain plaintiff’s said motion for a directed verdict on defendant’s counterclaim. and the cause should be either reversed and remanded, or reversed outright.

At the time defendant was permitted to amend his counterclaim he stated that he desired to do so in order “ * * * to make it perfectly clear that the counter-claim is based solely on an implied warranty that the car was reasonably fit for the purpose intended, and that the counter-claim is not based on any allegations of breach of an express warranty. * * ”

He was, therefore, well aware of his right to proceed on the theory of the breach of an express warranty, but he chose what appeared to him to be the more favorable and broader theory of the breach of an implied warranty. This he did deliberately and consciously. His action was “more a matter of legal strategy than of misadventure.” Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 229, 172 S.W.2d 835, 851; Farmer v. Taylor, Mo.App., 301 S.W.2d 429, 435 (10); Heginbotham v. Gann, Mo.App., 365 S.W.2d 56, 58 (3). It was a calculated course that defendant chose after he “ * * * weighed the consequences and committed himself to a particular theory * * * ” (Borrson, supra, 172 S.W.2d page 850), and he “abandoned” other grounds of liability (Welch v. McNeely, Mo., 269 S.W.2d 871, 875 -(1)). A party “should not always be granted a remanding of a cause for successive trials in order that he may experiment with different theories of his adversary’s liability. The latter has some rights.” (Borrson, supra, 172 S.W.2d page 850).

Apparently all competent evidence has been presented and there is no suggestion of fraud, accident, or mistake justifying the setting aside of the disclaimer and, therefore, an exercise of our discretionary power to remand the cause would unnecessarily prolong this litigation.

Other complaints of error asserted by appellant need not be considered further in view of our holding herein.

This cause should be reversed, with directions to the Trial Court to enter judgment for plaintiff on defendant’s counter-claim in accordance with plaintiff’s motion for a directed verdict at the close of all the evidence, and the Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by ADAMS, Spécial Commissioner, is adopted as the opinion of the Court.

The cause is reversed with directions to the Trial Court to enter judgment for plaintiff on defendant’s counterclaim in accordance with plaintiff’s motion for a directed verdict at the close of all the evidence.

RUDDY, P. J., and WOLFE and ANDERSON, JT., concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Margaret A. POINT, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Respondent. Margaret A. POINT, Plaintiff-Respondent, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellant.
    Nos. 31658, 31669.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 26,1964.

      Thompson, Mitchell, Douglas & Neill, Courtney Shands, Jr., W. Stanley Walch, Fred E. Arnold, St. Louis, for respondent-appellant.
    Morris B. Kessler, St. Louis, for appellant-respondent.
   BRADY, Commissioner.

This is a Workmen’s Compensation proceeding wherein the award of the referee was modified by the Industrial Commission and that award, as modified, was affirmed by the circuit court. Both parties have appealed. We will refer to the Industrial Commission as the “commission” and to the parties by the designation of “employer” and “employee.”

The employer’s answer to the claim for compensation did not deny the occurrence of the accident nor that it was compensable. The answer placed “ * * * the nature and extent of temporary disability and permanent disability * * * ” in issue by stating that a dispute existed as to these matters.

There is no dispute as to the factual situation. The employee, a secretary, tripped and fell sustaining a subcapital fracture of the left femural neck necessitating a reduction employing a Pugh type nail. The accident occurred on February 11, 1959. The employee was discharged from the hospital on March 7, 1959. She was confined to a wheel chair and after the passage of time became “restless” and informed her employer she would “ * * * be happy to do some work.” On June 1, 1959 she started to do some work which had been brought to her, although it was not the type of work she regularly performed for the employer. She continued to perform this work for eight weeks. It did not require a full eight-hour day every day, although it sometimes took that long. She stopped doing the work because “ * * * I just didn’t feel like doing it any more.”

During the first five months the employee was temporarily and totally disabled, the employer paid her full wages by paying the difference between the compensation payments of $37.50 weekly and her regular wage. The employee testified these “salary extension payments” were “ * * * based on the number of years of service, one month’s salary for five years * * * ” and that there was no requirement that she do any work at home in order to qualify. These payments ceased at the same time the employee ceased doing secretarial work at home. From the salary extension payments the employer withheld Federal income tax, city earnings tax, social security, payments to the Westinghouse contributory pension plan, and an amount for the purchase of savings bonds. The employer’s local manager was asked if it was the employer’s policy to continue salary payments. He answered: “Yes, for a thirty-day period; it’s a general policy, more or less, or automatic thing for any employee. Beyond thirty days, it’s a matter of local management’s decision.” Later this witness testified that payments made were the same whether absence from work was caused by on-the-job injury, off-the-job injury or sickness.

The commission made a gross award of $6,937.50. This consisted of 165 weeks of permanent partial disability at $37.50 per week and a twenty-week healing period at the same rate. There is no dispute concerning the propriety of the gross award. The sole issue on this appeal is the amount of credit to which the employer is entitled arising from payments made to the employee prior to the entry of the award. The first item of credit arises from the fact that the commission found that during the eight weeks the employee worked at home “ * * * she performed substantial services for her employer and that the weekly payments during this period were in fact wages paid for services rendered and were not payments made on account of the injury * * The commission cited the case of Gordon v. Chevrolet-Shell Division of General Motors Corp., Mo.App., 269 S.W.2d 163, as authority for this position and allowed the employer credit for $2,019.-64 representing 53% weeks of temporary total disability payments of $37.50 per week instead of $2,314.29 representing 61% weeks at the same weekly figure.

The second item of credit which the commission allowed the employer arises from the salary extension payments made to the employee during the first five months she was temporarily and totally disabled. The total of the gross salary extension payments allowed by the commission was $2,154.37. With respect to this credit the commission entered its findings as follows: “ * * * The employee does not deny that she has been paid these salary extension payments. She does not contend that these payments were made because of personal illness. .She does not maintain that they were made because of some non-compensable accident, nor does she produce any evidence to show that the payments were made for some other reason not connected with the fact that she had suffered an injury. These things being true, we are impelled to the conclusion that in her particular case the salary extention (sic) payments were made on account of the injury resulting from the accident of February 11, 1959. As such, they are brought within the plain purview of. Section 287.160(3) RSMo 1949 [V.A. M.S.]. We are well aware that this section has not been fully construed by our courts and that the Commission, being an administrative body, does not authoritatively propound the law. We have in the past literally applied this section and given the employer credit for payments made on account of the injury. The Kansas City Court of Appeals has at least given dicta approval to this policy. Fisher vs. City of Independence, 350 SW2 268, 1. c. 270. Accordingly, we conclude that the employer is further entitled to a credit of $2,154.37 against this award.”

In addition to the salary extension payments the employer also made vacation payments totaling $309.96 to the employee during the period of her total disability. The commission found that these payments were made as vacation pay for “ * * * accrued vacation benefits and was not paid as wages or on account of the injury * The commission did not grant the employer a credit for this payment.

The issues involved in these appeals are readily apparent from the above statement of facts. The employer contends that the commission should not have reduced the credit allowed it for temporary total disability on account of the eight weeks the employee worked at home. It also contends, the commission should have granted it an additional credit of $309.96 which represents the vacation pay the employer paid the-employee while the latter was disabled. With respect to the employee’s appeal her contention is that the commission should, not have allowed any credit arising from the-, salary extension payments. In the alternative the employee’s position is that if any credit is to be allowed, the correct sum is in. the amount of $845.44.

Section 287.160(3), RSMo 1959, V.A.M.. S., in those parts pertinent to this appeal,, reads as follows: “The employer shall be-entitled to credit for wages paid the employee after the injury, and for any sum-paid to or for the employee or his dependents on account of the injury * *

The rules governing our review ini proceedings of this nature are too well established to require citations. When the-question is one of law we are not bound by the commission’s findings. However, as-to factual matters, our duty is limited to-ascertaining if, upon the whole record and considering the evidence in the light most favorable to the employee, the commission-could have reasonably made its finding and", reached its result.

The first issue'here involved arises, from the action of the commission in refusing to allow the employer credit for the-eight weeks the employee worked at home.. The commission found “ * * * that the-weekly payments during this period were ini fact wages paid for services rendered * * In reaching that decision the commission cited and relied upon a previous decision of this court. In Gordon v. Chevrolet-Shell Division of General Motors Corp., supra, the contention was that the employer was entitled to credit for the wages paid to the employee after he returned to work. This court rejected that contention on the ground that the wages paid were earned wages and were not paid on account of the injury. There are differences between the factual situations in Gordon and in the instant case. In Gordon the •employee returned to his regular work while in the instant case the employee did not perform her regular assignments but did other work which was assigned her. In Gordon the employee returned to the employer’s place of business and was there during the regular and usual working hours, while in the instant case the employee performed this work at home and during an irregular working schedule. Nevertheless, the matters above referred to do not so distinguish the instant case as to preclude the application of what this court said in the Gordon case at 1. c. 171, to-wit: “Section 287.190 RSMo 1949, V.A.M.S. deals with injuries which leave an employee permanently maimed and which are likely to permanently impair his ability to carry on the ordinary pursuits of life, and which reduce his future occupational opportunities. Said section does not require a showing of loss of earning power as a prerequisite to the recovery of compensation payments. To hold the employer entitled to credit for wages earned would be inconsistent with the apparent purpose of the Act.” The services performed were valuable and the work the employee did at her home constituted a benefit to the employer. It follows that the commission ■correctly ruled the employer was not entitled to credit for the eight weeks the employee performed substantial services at home. Gordon v. Chevrolet-Shell Division of General Motors Corp., supra; see Schneider, Workmen’s Compensation Text, Vol. II, Sec. 2319 and the note in 175 A.L.R. beginning at page 726.

The employer also contends the commission erred in not granting it credit for the vacation pay paid the employee during her disability. There is no mention of the vacation pay in the testimony. This issue came into the case due to an exhibit filed by the employer which was a complete resume of the Workmen’s Compensation payments and other payments made to the employee by the employer. The term “vacation pay” is not otherwise referred to nor is there any evidence as to how this “vacation pay” accumulated. The burden is clearly upon the employer to substantiate his claim to credit arising from this source. In the instant case in the absence of any showing to the contrary, the commission was entitled to consider this sum as being based upon the employee’s length of service and earned by the employee for services rendered to the employer in the past. Accordingly, under the factual situation here present “vacation pay” cannot be considered as “wages paid the employee after the injury" nor as a sum paid “on account of the injury.” The commission properly denied the employer credit for this sum.

It follows from what has been said above that the employer’s appeal, based on its contentions that the commission should not have reduced the credit allowed it on account of the eight weeks the employee worked at home and that the employer was entitled to a credit for the vacation pay it paid the employee during her disability are without merit. The issues on the employer’s appeal are accordingly found for the employee.

The only issue involved in the employee’s appeal is her contention that the commission improperly credited the employer with the amount of salary extension payments made during the employee’s disability. The commission found these payments to have been made “on account of the injury.”

In ruling upon this issue the commission cited Fisher v. City of Independence, Mo. App., 350 S.W.2d 268, reversed on another point, Mo., 370 S.W.2d 310. In that case Fisher was paid his regular weekly wages for a period of 45 weeks, although the claimant performed no services during that time. The commission allowed the employer credit for the full amount of salary paid. In its opinion the Kansas City Court of Appeals states that “ * * * it would seem * * * ” that the commission properly allowed this credit but pointed out that neither party had appealed from that ruling and the issue was therefore not before it. This dicta cannot be considered authority upon the issue here involved.

With respect to the allowance for a credit of $2,154.37 to the employee as a result of their payments the employer admits that the commission made a mathematical error in computing the amount of this credit. The record clearly shows that while the salary extension payments were being made, the employee was also being paid $37.50 per week for temporary total disability and that these temporary total disability payments were deducted from the salary extension payments paid the employee during this period. The employer concedes that the commission should have deducted the temporary total disability payments of $808.-93 from the gross salary extension payments of $2,154.37 so that the salary extension credit allowed by the commission should have been $1,345.44, the net amount which the employer testified was paid the employee as salary extension payments. However, the employer insists it was not error to award it credit in this amount.

The commission held, and we have herein affirmed, the credit of eight weeks of temporary total disability payments on the basis that these were earned wages. It is inconsistent to hold that, when considering the credit arising from temporary total disability payments, the employee’s work during this eight week period rendered the payments made for such work earned wages and thus prevented any credit to the employer, and at the same time to hold that when considering the credit the employer claims arose from the salary extension payments, the same work for the same period of time did not constitute earned wages but was paid “on account of the injury” and thus entitle the employer to credit for that amount. The total amount paid the employee during this weekly period constituted earned wages. There is no evidence that the work given the employee and which she did during the eight weeks was to be paid for at a rate less than her regular salary. Accordingly, the credit to be allowed the employer for salary extension payments, if any sum is properly allowable, is $845.44. This figure represents the total of salary extension payments made, $2,-154.37 less $808.93 of temporary total disability payments as conceded by the employer and also less eight weeks of earned wages at $62.50 weekly or $500.00.

We pass now to a consideration of the employee’s contention that not even this amount constitutes a proper source of credit for the employer. It is fundamental that in construing a provision in an act constituting a comprehensive code the particular section involved is to be read with and construed in the light of all the provisions of the act involved. The employee relies upon certain other sections of the Workmen’s Compensation Act. She cites § 287.-100, RSMo 1959, V.A.M.S. That section applies only to public employees and in any event it merely provides that nothing in the act shall be construed to prevent the payment of full salaries. It does not provide that the employer shall be denied credit for the full salary paid during disability when the final award for permanent partial disability is made. The employee also cites § 287.270, as support for her contention. In the parts thereof pertinent to our inquiry that section provides that no benefits derived from any other source than the employer are to be considered in determining the compensation due. The only benefits here involved are those that admittedly came from the employer. She also cites and relies upon § 287.530, which provides a method of commuting compensation awards when they are paid in advance, and § 287.370, which provides for a substitute compensation arrangement when such is approved by the superintendent of insurance. By their terms these statutes have application to situations different from that here involved. § 287.530, supra, deals with a situation where a final award has been made and not with a payment prior to the entry of the award as is here involved, and there is no substitute plan in this case.

The employee’s contention that § 287.160 (3), supra, merely entitles an employer to credit salary extension payments against the employee’s liability for temporary total disability payments under § 287.170 and that such payments are not to be considered as paid “on account of the injury” is without merit. In the first place the proper construction of § 287.160(3), supra, is clearly indicated by the plain language found therein. In § 287.160(3), supra, the legislature provided for credit for payments made on account of the injury “except for liability under Sec. 287.140” which involves medical benefits. Having made one exception, the legislature, had it wished to do so, could have as easily provided another and adopted the employee’s contention that these salary extension payments are only to be credited against the employer’s liability for temporary total disability by adding the words “and Sec. 287.190” which is the portion covering payment for permanent partial disability. This it failed to do and certainly that failure is of significance.

In the second place effect must be given to the fact that in § 287.160(2) the legislature did provide that interest on installments of compensation shall run “ * * * from the date when due.” In Komosa v. Monsanto Chemical Co., Mo., 317 S.W.2d 396, it was held that payments of permanent partial disability were not “due” within the meaning of that provision until the award was entered by the commission. If the legislature had intended that payments made “on account of the injury” could •only be credited against temporary total disability payments when due, it would have incorporated in § 287.160(3), supra, language similar to that found in § 287.160 (2), supra, such as providing the employer shall be entitled to credit “ * * * from the date when due * * * ” for wages paid and for any sum paid on account of the injury. The fact that such a provision was incorporated into § 287.160(2), supra, and was omitted from subparagraph 3 of that same section illustrates the legislature intended a different approach to the application of the latter section.

As has been above indicated, we find the employee’s contention that the employer is not entitled to credit for the $845.-44 salary extension payments made to the employee during her disability is without merit. We are led to this conclusion by two considerations of primary importance. The first of these is § 287.800. Therein we are admonished to construe the provisions of this act liberally and with a view to the public welfare. Such a construction calls for an interpretation of the various sections of this act that will encourage employers to comply swiftly with all the requirements of the act. It also requires a construction that will not penalize the employer who promptly and more than sufficiently meets those requirements. An employer who has paid an employee at the time of that employee’s greatest need more than he was obligated to pay should not be penalized by being denied full credit for the amount paid above the requirements of the act as against the amount which might subsequently be determined to be due the employee. To do so would inevitably cause employers to be less generous. By limiting the payments the, employer can safely make to the amount of temporary total disability the result would be that the employee would lose his full salary at the very moment he needs it most. Such a construction is neither liberal nor one made with a view to the public welfare.

The second consideration upon which we rely is the construction given the term “on account of the injury” as it appears elsewhere in the Workmen’s Compensation Act. § 287.430 provides: “No proceeding's for compensation under this chapter shall be maintained unless a claim therefor he filed with the commission one year after the injury or death, or in case payments have been made on account of the injury or death, within one year, from the date of the last payment.” (Emphasis supplied.) In the case of McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, the employer paid full wages to the employee for a period of approximately four months after the injury, during which time the employee performed no services for the employer. It was held (1. c. 1069) : “ * * * These payments must properly he treated and considered as having been made ‘on account of the injury’ within the meaning of section 3337, supra. * * * ” The section of our 1929 statute referred to in that quotation is now § 287.430, supra. The payment of these wages cannot be construed as being “on account of the injury” under § 287.340, and, under what is essentially the same factual situation as found in McEneny be held not to be made “on account of the injury” under § 287.160(3), supra. See Olney Seed Co. v. Industrial Commission, 403 Ill. 587, 88 N.E.2d 24, 1. c. 28 (111.1949). The same result was reached when the issue under consideration was whether wages paid in lieu of compensation were payments made “on account of the injury” as that sum was used in § 3337, RSMo 1929, V.A. M.S. now § 287.430, supra. See Lawson v. Capital City Contracting Co., 227 Mo.App. 256, 52 S.W.2d 421. It follows that the commission properly allowed the employer credit against the permanent partial disability award for “salary extension payments” made to the employee during her temporary total disability but erroneously and incorrectly computed the credit to be allowed. Compare Murphy v. Burlington Overall Co., 225 Mo.App. 866, 34 S.W.2d 1035(4).

The judgment should be reversed and this cause remanded to the circuit court with directions to instruct the commission to enter its award in favor of the employee in the amount of $6,937.50, which award is subject to a credit in favor of the employer in the amount of the sum of $2,-019.64, the temporary total disability payments made by the employer for 53% weeks, and $845.44, the net salary extension payments properly allowable to the employer under the provisions of this opinion. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and cause remanded with directions.

WOLFE, Acting P. J., ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.

RUDDY, J., not participating.


text:
    Mary Lou HOPKINS and William B. Hopkins, Plaintiffs-Respondents, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, City Products Corporation, a Corporation, Walter C. Stock, and Ronald Casperson, Defendants, St. Louis Public Service Company, a Corporation, Defendant-Appellant.
    No. 31790.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.

      James Ruddy and John D. Schneider, St. Louis, for defendant-appellant.
    F. Douglas O’Leary, St. Louis, for defendant Walter C. Stock.
    James T. Williamson, St. Louis, for defendant Ronald Casperson.
    Hullverson, Richardson, & Hullvcrson, Corinne Richardson, Everett Hullverson, St. Louis, for plaintiffs-respondents.
   BRADY, Commissioner.

This appeal arises out of a suit for damages wherein the plaintiff, Mary Lou Hopkins, prayed for $35,000 and her husband, William Hopkins, in a separate count of the petition prayed for $10,000 for costs of household help, his wife’s medical expenses, and for deprivation of her “ * * * aid, assistance, and companionship.” The jury’s verdict was in favor of Mrs. Hopkins for $15,000 and in favor of William Hopkins in the amount of $4,000. These judgments were rendered against the St. Louis Public Service Company and one Casperson, the driver of an automobile involved in a collision with the company’s bus. The timely after-trial motion of the defendants was overruled and the company filed its notice of appeal with the Supreme Court of this state. Thereafter, Casperson paid $4,000 on Mrs. Hopkins’ judgment and $1,000 on William’s judgment. Since this reduced the amount in dispute to $14,000, the company filed its motion to transfer this appeal to this court and the cause was transferred. We will hereafter refer to the St. Louis Public Service Company as the defendant and to Mr. Casperson by name.

The allegations of prejudicial error concern the giving of Instructions No. 2, 5 and 6 and the contention that the verdicts were so grossly excessive as to require a new trial or, in the alternative, a substantial remit-titur. The factual situation appearing in this opinion will be limited to these contentions and will be stated in the light most favorable to the plaintiffs who prevailed in the trial court.

William Hopkins was not present at the scene of the collision. Mrs. Hopkins was a passenger on the company’s westbound Manchester bus and was seated behind the bus driver on the left side of the bus. As the bus was crossing Kingshighway it was involved in a collision with a southbound automobile driven by Casperson who had violated the electric traffic signal. At this point Manchester is 62 feet wide and Kings-highway is 76 feet wide. There were four to five inches of snow on the ground and the pavement was slippery. The company’s driver had pulled the bus to the northeast corner of the intersection to make its regular stop so that passengers could get on and off the bus. The driver testified that there was an automobile in front of the bus in the curb lane but other witnesses testified to the contrary. An automobile driven by Walter Stock was stopped on Manchester, headed west, in the lane nearest the center line. When the light changed he and the bus began to go forward together. He drew slightly ahead of the bus and when he was ten to fifteen feet into Kingshighway, he saw Casperson’s automobile about ISO feet north of the intersection coming south on Kingshighway at a speed of 25 to 30 miles per hour. There was other evidence that Casperson’s speed was 30 to 35 miles per hour. Stock was then traveling at a speed of five to ten miles per hour and reached a maximum speed of twenty miles per hour before completely crossing the intersection. He heard a scraping noise at the right rear fender of his car when the left side of the bus contacted it. He did not see the collision between the bus and Casperson’s automobile. Stock’s daughter was in his automobile with him and her testimony corroborated that of her father. She did add that Casperson was traveling in the lane next to the center as he approached on Kingshighway.

Several passengers testified on behalf of the plaintiff. Mr. Hutchinson testified that after the bus had moved about five feet out into the intersection, he saw Casperson’s automobile about six car lengths from the intersection. He estimated a car length at fifteen feet. This automobile and the bus continued on their paths. When the bus was about three feet from the center line of Kingshighway, Hutchinson felt the brakes on the bus being applied. The bus traveled about ten feet from this point to the point of impact. Miss Kapfer testified that when the bus was one-fourth to one-half way across the intersection, she saw Casperson’s automobile about five car lengths from the intersection traveling at 30 to 35 miles per hour.

Casperson testified that he was sixty to seventy feet north of the intersection when the bus started out into it. Acheson, the driver of a southbound bus stopped on the west side of Kingshighway north of the intersection, testified that when the bus on which Mrs. Hopkins was riding entered the intersection, Casperson was two car lengths north of the rear of his 38-foot bus.

Following the accident Mis. Hopkins continued on the bus to her destination. Upon her arrival at home she complained of neck and shoulder pain, headache, and her left hand was numb. The night of the occurrence she went to St. Joseph Hospital, where she was examined by Dr. Cannon; X-rays were taken. She remained in the hospital for ten days undergoing traction treatments to her neck and taking medicine for pain and as muscle relaxants. She was fitted with a Thomas collar which she wore regularly up to the time of trial. Dr. Cannon testified that upon his initial examination he found Mrs. Hopkins to have limitation of the motion of her neck, that her left shoulder area was tender and there was limitation of movement over the acromio-clavicular joint which was strained and sprained. His original diagnosis was sprain of the cervical spine, partial separation of the acromioclavicular joint, contusion of the left knee and some straightening of the cervical lordosis due to muscle spasm. Dr. Cannon treated Mrs. Hopkins every week after her release up to June of 1961. During April of 1961 he sent her to the hospital on four to six occasions as an outpatient so she could receive diathermy treatments. He saw her again in December of 1961, and then again in January of 1963. Ten months after the accident there was still some reversal of the lordotic curve and a narrowing of the fifth and sixth cervical interspace. It was his opinion there was some injury to the joint space at C5 to C6 .and lie advised her to mobilize her neck as ■much as possible. He felt she should continue to use the Thomas collar, that she ■could not very easily sit for a long period •of time and type, and that she would need treatment in the future which might possibly include an operation to remove the •cartilage between the joint so as to relieve the pressure on the nerves. He felt she would continue to have pain.

Dr. Barnhill first examined the plaintiff in June of 1962. He saw her every day ■or two for a month, then twice a week, and at the date of trial (October 12, 1962) was ■seeing her once a month. In all he had treated her for seven months, seeing her a total of 27 times. He found muscle spasm of the neck muscles and X-rays he read •showed a very marked reversal of the normal lordotic curve. His diagnosis was •cephalea (headaches), traumatic myofibro-•citis of the upper dorsal area, emotional disturbance caused by pain and generalized •debility secondary to trauma. He also found an injury to the disc between C5 and 'C6 and a narrowing of this interspace and limitation of motion of her head and neck. He prescribed analgesics and muscle relaxants and advised the use of traction equipment in her home. It was his opinion she would need treatment in the future and will •continue to suffer great pain. He found that her condition was permanent. He testified that Mrs. Hopkins is “very, very noticeably” affected by changes in the weather and would be unable to work as a stenographer or typist. He stated that if she did mot improve, alternative treatment was a •discography fusion operation.

Another doctor, a radiologist, testified ■that the X-rays he took showed an abnormal •curve in the cervical spine. The defendants’ medical witness also testified that he ■found some straightening of the two lower ■cervical vertebrae.

Prior to the occurrence Mrs. Hopkins was; employed as a payroll auditor at a •salary of $275 per month. She was 32 years of age and had no prior injuries. She had some help at home during the day while she worked to take care of her younger children, but she did her own housework. She had been very active; bowling, swimming, and taking part in scouting activities as well as other family interests. Following her release from the hospital she used a traction device at home every night for six months. At the time of trial she continued to have headaches and takes medication for sleeplessness and nervousness. She has limited motion of her head but cannot move her head or neck at all without pain of some kind. She wears the Thomas collar most of every day. Most of her household duties have had to be taken over by domestic help and her family. She can only drive an automobile by turning her entire body instead of only her head and neck. She has curtailed her family and social activity except that she does swim with her collar on. She returned to work after four and one-half months. Because some of the fingers on her left hand were numb she had difficulty typing. She continued working but only on an irregular basis due to her condition. She finally lost her job due to absenteeism. From the date of the accident to the date of trial in 1962 she lost $4,812 in wages. As previously stated, she is unable to work as a stenographer or secretary or at any work which requires her to sit down and use her hand.

Mr. Hopkins testified that to date of trial the medical bills he had received totaled $1,482.94 and that he had been required to expend $400 for domestic help.

Instruction No. 1, not in issue in this appeal, was Mrs. Hopkins’ verdict-directing instruction against Casperson. Instruction No. 2, Mrs. Hopkins’ verdict-directing instruction against the defendant, first required the jury to find that when the bus was about five to ten feet into the intersection Casperson was then so close to the intersection and was traveling at such a rate of speed that there was danger of a collision between them and the automobile. The next paragraph of the instruction reads as follows: “If you then find from the evidence that the bus driver by the exercise of the highest degree of care on his part, should have discovered and realized that such danger of a collision existed, in time thereafter for the bus driver, in the exercise of the highest degree of care on his part and with safety to himself and others, either to have stopped the bus or to have slackened its speed and turned to his right, and that by doing either of those things he could, by the exercise of the highest degree of care, have avoided the collision but failed to do so, * * The balance of the instruction requiring the jury to find such conduct negligence is not pertinent to the allegations of error raised by the defendant.

Instruction No. S informed the jury that if they found for Mrs. Hopkins and against Casperson under Instruction No. 1 and also found for her and against the defendant under Instruction No. 2, then they were to return a verdict in her favor against both even if they found one more negligent than the other.

Instruction No. 6 informed the jury that if they found for Mrs. Hopkins and against Casperson under Instruction No. 1 and further found that Mr. Hopkins “ * * * incurred expenses for the treatment and care of the injuries, if any, suffered by her in said collision, * * * ” then they should return a verdict in his favor on his separate cause of action against Casperson. In its second paragraph this instruction informed the jury in the same manner should they find against the defendant under Instruction No. 2. The final portion of this instruction told the jury that if they found in favor of Mr. Hopkins and against both Casperson and the defendant, then their verdict should be against both even if they found one more negligent than the other.

The defendant assigns four reasons to support its contention that the giving of Instruction No. 2 constituted prejudicial error. The first of these is that there was no substantial evidence in the entire case that the collision could have been avoided by slackening the speed of the bus and turning it to the right when the bus was five to to ten feet into the intersection. The argument made in support of this contention is based solely upon the defendant’s contention that the only evidence on this issue comes from the bus driver who testified he could not turn to the right. This evidence is in keeping with the defendant’s theory that only by turning right into Kingshighway could the collision have been avoided and that an automobile in the curb lane in front of the bus and the pedestrians -crossing-Kingshighway prevented the driver from so turning. As stated earlier herein the driver did testify that there was an automobile in. the curb lane in front of the bus. However, there is plenty of evidence otherwise.. Casperson denied there was an automobile in front of the bus; Stock said there was. none and so did his daughter. In addition, there was ample evidence from which the jury could find the collision could have been avoided by slackening the speed of the bus and turning to its right without harm, to others even if the pedestrians were to the right of the bus. The defendant’s driver said he pulled out around the car he testified was ahead of him and straightening out proceeded across the east half of Kingshighway with the left side of the bus two to four feet from Manchester. The bus was 81/2 feet wide and Manchester was 62 feet wide. Therefore the right side of the bus was 19 or 20 feet from the north curb line of Manchester. There was at least one lane open to the right of the bus into-which it could have turned to avoid the collision without leaving Manchester.

Not only was there a place to turn to the right but there is evidence from which' the jury could find that the bus could have slackened its speed. The danger of a collision arose shortly after the bus entered the intersection. The bus was then moving at about five miles per hour and the driver testified his stopping distance at that speed would be eight to twelve feet. The bus was then at least thirty feet east of the point of impact and, as just stated, had an open lane-to its right on Manchester. This evidence is sufficient to allow the jury to reason that the company’s operator, in the exercise of the highest degree of care on his part and with safety to himself and others, could have slackened the speed of his bus and turned it to the right so as to avoid the collision. The evidence that the bus could stop allows such an inference to be drawn. Nored v. St. Louis Public Service Co., Mo., 319 S.W.2d 608, 1. c. 611 at [3]; Wilson v. Tonsing, Mo., 375 S.W.2d 140, at 143-144.

The defendant next contends Instruction No. 2 should not have been given because it, to quote from its brief, “ * * * improperly placed an absolute duty on this defendant to stop or slacken and turn regardless of the circumstances then and there existing and by so doing, said instruction failed to hypothesize any facts for the jury to consider and became a roving commission to the jury.” The defendants’ argument is threefold. First, it urges that there were not sufficient facts submitted in the instruction; second, that the instruction improperly excluded certain facts and also failed to include certain other facts; and that the instruction constituted a roving commission to the jury.

With regard to defendants’ first contention, the plaintiff’s theory as to how this collision occurred differed greatly from the defendants’ theory. However, it is evident that there was no controversy but that Casperson’s speed and the slippery streets combined so that Casperson created a hazard while he was still a distance from the intersection. Instruction No. 2 submitted that when the bus had reached a point five to ten feet into the intersection, Casperson was then so close and traveling at such a rate of speed that the danger of a collision then arose. The defendant contends that it was necessary for this instruction to have hypothesized Casperson’s speed in miles per hour and his distance in feet. We cannot agree. In LeGrand v. U-Drive-It Co., Mo., 247 S.W.2d 706, defendant’s contributory negligence instruction submitted that plaintiff moved into the path of defendant’s automobile when it was so close that the collision could not possibly have been avoided. In Sullivan v. Union Electric Light & Power Co., 331 Mo. 1065, 56 S.W. 2d 97, plaintiff’s instruction that the jury should find for the plaintiff if they found the defendant’s driver drove his truck across the path of the automobile in which plaintiff’s deceased husband was riding while that automobile was so close and traveling so fast that to do so created danger of a collision. See also Barnes v. Vandergrift, 364 Mo. 829, 269 S.W.2d 13; Lincoln v. Railway Exp. Agency, Inc., Mo., 359 S.W.2d 759, and Brooks v. St. Louis Public Service Co., Mo., 275 S.W.2d 252. Under the facts of this case all that was necessary to submit to the jury was that they be required to find that the defendant driver moved out into the intersection at a time when Casperson’s automobile was so close and approaching at such a speed that it was impossible to avoid a collision.

Defendant also contends that the instruction improperly excluded certain facts from the jury’s consideration because the phrase “all the facts and circumstances shown in evidence” (see Arditi v. Brooks Erection Co., Mo., 266 S.W.2d 556) was omitted. While it may be proper to include this phrase in some cases, failure to include it does not exclude all of the facts and circumstances in evidence as defendant contends. The instruction opened by requiring the jury to find the hypothesizations therein “from the evidence,” and proceeded to submit plaintiff’s theory. There is no requirement that this instruction contain hypothesizations negating facts and circumstances not essential to plaintiff’s theory. It was the defendant’s duty to request an instruction submitting its defensive theory. Arditi v. Brooks Erection Co., supra. The defendant urges that this instruction improperly omitted to hypothesize the facts of the snow on the streets and the angle of the intersection. Since there was no dispute as to these facts, it was not necessary to submit them.

The defendant then argues that the instruction placed an absolute duty upon the defendant’s driver to stop or turn and therefore “said instruction became a roving commission and it was error to give such.” In support of this contention defendant cites Welcome v. Braun, Mo., 319 S.W.2d 586, at 589. There is no similarity between the instruction involved in that case and this instruction. The only reference to the driver’s duty in the instruction in Welcome v. Braun, supra, was in the first paragraph. This did not, the opinion held, correctly limit the hypothesized acts committed by the defendant to the exercise of the highest degree of care. This instruction contains repeated limitations of the driver’s duty to the exercise of the highest degree of care. These are so placed in the instruction as to tell the jury in plain language that the defendant was required to use the highest degree of care in doing the hypothesized acts. The clear language of this instruction and the repeated limitation of the defendant driver’s duty by the use of the phrase “the highest degree of care” prevents this instruction from being interpreted as holding the driver to an absolute duty to stop or to slacken speed and turn.

The defendant then contends that Instruction No. 2 was erroneously given because there was no substantial evidence from which the jury could find that when the bus was five to ten feet into the intersection Casperson was then so close and was traveling at such a rate of speed that there was danger of a collision. Again the defendant has disregarded the evidence most favorable to the plaintiff. The defendant refers to Mr. Hutchinson’s evidence that when the bus was five to ten feet into the intersection Casperson was six car t lengths or 90 feet away. The defendant says that Casperson testified he could stop within 80 to 100 feet at twenty miles per hour. The evidence was that Casperson could stop in 80 to 100 feet at twenty miles per hour only after he got his foot on the brake. The question that was asked expressly asked Casperson to give his stopping distance, “ * * * after you got your foot on the brakes and applied them.” Cas-person testified that his reaction time would extend his stopping distance to 122 to 130 feet at twenty miles per hour. It follows that even taking Casperson’s speed at twenty miles per hour and even if the undisputed slippery condition of the streets is ignored, there was substantial evidence from which the jury could find there was danger of a collision when the bus was five to ten feet into the intersection. It should also be noted that there was evidence that Casperson’s speed was 30 to 35 miles per hour.

The last attack upon this instruction is that it erroneously assumes the disputed fact that there was danger of a collision when the bus was five to ten feet into the intersection. In this connection the defendant refers to that portion of the instruction set out earlier herein requiring the jury to find that the bus driver, by the exercise of the highest degree of care, should have discovered “ * * * that such danger of a collision existed.” Defendant overlooks the fact that the first paragraph of this instruction required the jury to find that there was danger of a collision when the bus was five to ten feet into the intersection. The subsequent assumption of a fact previously hypothesized in an instruction is not error. Elgin v. Kroger Grocery & Baking Co., 357 Mo. 19, 206 S.W.2d 501, (15) ; Brinkley v. United Biscuit Co. of America, 349 Mo. 1227, 164 S.W.2d 325, (10).

The assigned error with respect to the giving of Instructions No. 5 and 6 is that these instructions erroneously assumed the disputed fact of defendant’s negligence. The contention is that these instructions fall into the same category as the concurrent negligence instruction given in Watt v. St. Louis Public Service Co., Mo., 354 S.W.2d 889. The erroneous instruction there involved told the jury that if the negligence of both defendants concurred to cause plaintiff’s injury both would be liable. There was no reference made to other instructions which required a finding of negligence. In the first place, the clear and unambiguous wording of Instruction No. 5 presents a vastly different situation from that found in the Watt case. Instruction No. 5 directs a verdict against both the defendant and Casperson if, and only if, they found against Casperson. under Instruction No. 1 and against the defendant under Instruction No. 2. The same is true of Instruction No. 6. There too the jury was informed that if, and only if, they found a verdict under other instructions for plaintiff and against both defendants were they to award their verdict against both Cas-person and the defendant under that instruction. No one could read Instructions No. 1, 2, 5 and 6 and conclude, as defendant contends, the court was telling the jury both defendants were negligent.

The last allegation of error is that the verdicts are so excessive as to indicate passion and prejudice on the part of the jury and to require either a new trial or a substantial remittitur. We cannot agree that these verdicts require our interference. Mrs. Hopkins, age 32, has a permanent injury to her neck which has been and will be very painful. She is compelled to wear a Thomas collar but while that helps, it does not cure her. As of trial in January, 1963, she had lost $4,812 in wages. Medical and household expenses arising from her injury totaled $1,882.94 at time of trial. She will need future treatment and possibly hospitalization and an operation. In view of the whole record we cannot find a verdict of $15,000 for Mrs. Hopkins and $4,000 for her husband so grossly excessive as to constitute proof of passion and prejudice upon the part of the jury as to require a new trial.

Based upon certain cases which it cites, the defendant alternatively urges that a verdict of $7,500 for Mrs. Hopkins and $2,500 for her husband would be proper to maintain reasonable uniformity of the awards in such cases and urges that we order remittiturs to accomplish this result. Defendant cites Crosby v. St. Louis County Cab Co., Mo.App., 320 S.W.2d 944, where this court held a verdict of $3,500 was not excessive. In that case the plaintiff's medical expenses totaled $327.50.. The plaintiff lost one week from work. Future treatments, if needed, were to be heat treatments. There was no sign of disc injury or straightening of the spine. In addition to all of these distinguishing factors the case is not authority that the amount of the verdict therein is the maximum we would approve.

Defendant refers to Miller v. Multiplex Faucet Co., Mo., 315 S.W.2d 224 and Carpentier v. Middlewest Freightways, Mo., 259 S.W.2d 816. We have examined the injuries in the Miller case and do not believe the situation analogous. Carpentier presents a factual situation more similar but, although the court affirmed the trial court which had reduced a $20,000 verdict to $9,000, it clearly indicated that had the trial court not done so it would have affirmed the original verdict.

In Riggs v. Metcalf, Mo., 315 S. W.2d 791, a case where the treatment was very similar to that in the instant case, a verdict of $20,000 was sustained. See also Appelhans v. Goldman, Mo., 349 S.W.2d 204, and Pyles v. St. Louis Public Service Co., Mo., 372 S.W.2d 114. In connection with the verdict for Mr. Hopkins, Riggs v. Metcalf, supra, involved an award of $2,500 for the husband where hospital and medical bills exceeded $1,000. In. the instant case post-medical expenses alone total almost twice that involved in Riggs. In Gooch v. Avsco, Inc., Mo., 340 S.W.2d 665, a husband’s verdict of $13,500 for medical treatment for his wife costing $2,250 was upheld. The case involved a “whiplash” type of injury requiring the removal of a disc. This is not to imply that the husband’s verdict in this type of case is to be limited or reviewed only on the basis of the medical expenses incurred. However, in the instant, case, the fact that Mr. Hopkins’ award was only some $2,118 over the amount he was out of pocket at the time of trial is some indication the jury’s action was not so completely the result of bias and passion as to require our interference. Especially is this true in view of Mrs. Hopkins’ inability to participate in family activities, her need for domestic help, and the possibility of future demands upon Mr. Hopkins for her medical treatment.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

WOLFE, Acting P. J., ANDERSON, J., and DOUGLAS W. GREENE, Special Judge, concur.

RUDDY, J., not participating.


text:
    ST. LOUIS HOUSING AUTHORITY, (Plaintiff) Appellant, v. Byron GORDON et al., Defendants, Francis S. Montgomery, (Defendant) Respondent.
    No. 31379.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.
    Irvin Dagen, Edward C. Cody, Donald Gunn, St. Louis, for plaintiff-appellant.
    Thomas R. R. Ely, St. Louis, for defendant-respondent.
   GEORGE P. ADAMS, Special Commissioner.

Plaintiff-appellant condemnor appeals from an order sustaining defendant-respondent landowner’s motion for a new trial.

On December 30, 1960, a Commissioner’s award was made in favor of defendant in the amount of $10,900.00 for damages sustained in the taking of her property by plaintiff.

On trial of exceptions filed by both parties the evidence of market value of the property was $14,000.00 to $14,500.00, $8,-200.00, $7,000.00 and $6,900.00.

Over objection of defendant, the court permitted a field supervisor of real estate appraisers connected with the St. Louis City Assessor’s office to testify that for the year 1960 defendant’s property was assessed for tax purposes at $3,200.00.

The jury returned a verdict for $10,-000.00.

The trial judge sustained defendant’s motion for a new trial on the ground the court erred in admitting evidence as to the assessed valuation of defendant’s property.

Appellant says that the trial court erred in sustaining the motion for a new trial, “ * * * for the reasons that the assessment was thoroughly explained, the Defendant had the opportunity to cross-examine the assessor, assessed valuation was distinguished from fair market value, and the Jury was not misled by the admission of this testimony into evidence.”

This question has long ago been settled in Missouri. In Kansas City & G. Ry. Co. v. Haake et al., 331 Mo. 429, 53 S.W.2d 891, 84 A.L.R. 1477, the Supreme Court held that testimony of the assessed valuation of property for tax purposes was incompetent and its admission was prejudicially erroneous.

To avoid the lethal consequences of this case, plaintiff points out (with emphasis supplied by it) that the Court stated, on page 892 of 53 S.W.2d: “Unless there is something to take this out of the general rule, we think the objections to this evidence should have been sustained” saying that by this language the Supreme Court “left open” the question of admissibility of such testimony "under other circumstances.”

The “somethings” or “other circumstances” that “take” the instant case out of the general rule suggested by defendant are:

First, since one witness used the “income approach” in arriving at value and stated that taxes would have to be considered, then, upon ascertaining the amount of taxes a buyer could “ * * * figure out the assessed value.” While this justification for admitting evidence of assessed valuation appears somewhat nonsensical, the same “reasoning” would, nevertheless, have applied to the facts in the Haake case. Further, the same “buyer” could also check the real estate records and might find where the property had recently been sold for a price below its market value at auction under the hammer, or had been recently purchased by an heir at an exorbitant price because it was the old family homestead. These transactions and the prices paid might well have been “discovered”, but they would not reflect “market value” and would have been incompetent.

Next, plaintiff says that the witness testified that assessed valuation for tax purposes was not true market value, and it then “reasons” that that “thoroughly explained” the assessment and “distinguished” assessed value from market value and the jury were not misled. Testimony that one value is not the value to be considered as the measure of damages does not erase the effect of the irrelevant and incompetent evidence, or excuse its initial admission. In Haake, the assessor at least tried to relate assessed valuation to market value by testifying that it was only “40% of market value”, but the Supreme Court held that that did not cure the objection to the testimony.

Third, plaintiff states, “ * * * defendant had the opportunity to cross-examine the assessor * * In Haake, also the assessor took the stand and was subject to cross-examination. The objection to this evidence is that the value was for tax purposes and not its value on the market. It simply was not evidence of market value. As plaintiff’s witness testified, it was for “tax purposes, but not for selling or buying” and that he “wouldn’t have any knowledge of what anyone would pay for it.” His own testimony showed that he was not competent to testify as to the value to be considered in arriving at the measure of damages. The right of cross-examination is not adequate protection against this irrelevant and incompetent evidence — evidence that should not have been admitted in the first place.

Finally, plaintiff says, the jury “was not misled by the admission of this testimony into evidence,” for the reason that since plaintiff’s witnesses placed values of $8,200.-00, $7,000.00 and $6,900.00 on the property and the jury returned a verdict for $10,-000.00 the jury gave the $3,200.00 assessment figure “no weight.” It is sufficient to note that in Haake the Court said, on page 894 of S3 S.W.2d: “* * * The fact that the damages awarded were greater than was justified by the assessed valuation doés not prove that this evidence had no effect on the jury, as the same might be said as to the evidence of several other witnesses on the value. * * * ”

There are no “other circumstances” present here taking this case out of the general rule announced in the Haake case.

The admission of this testimony was prej-udicially erroneous and the learned trial judge very properly sustained defendant’s motion for a new trial. His action in doing so should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

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

The order of the trial court granting defendant a new trial is affirmed.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


author: DOERNER, Commissioner.

text:
    Lillie LARKIN, Plaintiff-Appellant, v. CONSOLIDATED SERVICE CAR COMPANY, a Corporation, Defendant-Respondent.
    No. 31750.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.
    Motion for Rebearing or for Transfer to Supreme Court Denied Oct. 26,1964.
    Samuel A. Goldblatt, William L. Mason, Jr., St. Louis, for plaintiff-appellant.
    Murphy & Roche, John T. Murphy, Jr., Carl R. Gaertner, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

Plaintiff brought this action to recover damages of $7500 for personal injuries. At the close of plaintiff’s case the court directed a verdict in favor of defendant, upon which judgment was entered accordingly. Following the overruling of her after-trial motions plaintiff duly appealed.

Defendant is a common carrier of passengers for hire, operating for that purpose large automobiles known as “service cars” on the public streets of the City of St. Louis. On the evening of July 3, 1960, plaintiff, a woman 54 years of age, was a fare-paying passenger on one of defendant’s service cars, having embarked at Goode Avenue. She sat in the back seat, on the right hand side. To her left there was seated a man then unknown to the plaintiff, who was identified during the trial by one of her witnesses as Reverend Chisholm Jones, since deceased; and to his left sat another woman passenger. The car traveled east-wardly on Easton Avenue, and as it neared the intersection of Grand Avenue with that street, plaintiff notified the driver of her desire to get off at that point. No other passenger did so. When the car stopped at the southeast corner of the intersection Reverend Jones crossed in front of plaintiff, opened the right rear door, and got out. As plaintiff was in the act of following him out, Jones closed the door on plaintiff’s right leg. The evidence for plaintiff was that neither Reverend Jones, who walked away, nor the driver, who remained seated, came to her assistance, although she screamed from the pain. While the testimony of plaintiff’s doctor is not included in the transcript, her own testimony indicates that she sustained a fracture of the lower part of her leg.

Pointing to the testimony of one of her witnesses that it was the defendant’s custom to allow its passengers to open and close the car doors themselves, and to the absence of any evidence that plaintiff knew of the custom, plaintiff advances the following argument: first, that as a fare-paying passenger the defendant common carrier owed her a non-delegable duty to exercise the highest degree of care to afford her a reasonably safe opportunity and means of exit from its vehicle; and second, (and we quote) “Defendant chooses to operate its common-carrier vehicles under a custom or arrangement whereby it allows and permits its passengers to themselves open and close the exit doors on its vehicles; if defendant does not thereby delegate its nondelegable duty to exercise the highest degree of care to afford its passengers a reasonable safe opportunity and means of exit as a matter of law, and thereby render itself absolutely liable for the acts or omissions of its passengers which cause injury to other passengers, it thereby at least creates a jury issue as to whether it thereby does or does not exercise the highest degree of care to afford its passengers such opportunity and means.”

Assuming, without deciding, that the law is as stated by plaintiff, the fatal weakness in plaintiff’s position is that she did not plead or attempt to recover below on the theory now advanced in her argument on appeal. In her petition plaintiff did not refer to defendant’s custom of allowing or permitting its passengers to themselves open and close the exit doors of its vehicles, nor did she charge that defendant thereby failed to exercise the highest degree of care to afford plaintiff a reasonably safe opportunity and means of exit from its vehicle. All that plaintiff alleged in her petition was that the door was closed on her leg as the result of the carelessness and negligence of the defendant “by and through its agent, servant and employee” and that defendant “by and through its agent, servant and employee” was at all times therein mentioned in complete charge and control of the service car. In brief, plaintiff pleaded that the operator of defendant’s car closed the door on her leg, but her evidence failed to sustain her charge in that it showed that a fellow-passenger did so. It is elementary that in an action for damages for personal injuries the plaintiff, in order to recover, must make out a case against the defendant upon the particular charge or theory of negligence alleged in his petition as constituting the cause of action which the defendant will be called upon to meet, and he will not be permitted to recover upon proof of any other or different charge or theory, even though the same might suffice to have shown actionable negligence on the defendant’s part if properly pleaded. Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, affirming (Mo.App.) 51 S.W.2d 559; Hughes v. Kiel, Mo.App., 100 S.W.2d 48; Hein v. Chicago & E. I. R. Co., Mo.App., 209 S.W. 2d 578. The court, therefore, did not err in directing a verdict for defendant at the close of the plaintiff’s case. Rice v. Allen, Mo., 309 S.W.2d 629.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of DOERNER, C., is adopted as the opinion of this court. The judgment is affirmed.

RUDDY, P. J., WOLFE, J., and JAMES D. CLEMENS, Special Judge, concur.