author: HUGHES, Justice.

text:
    P. L. GARRISON and Texas Water Rights Commission, Appellants, v. BEXAR-MEDINA-ATASCOSA COUNTIES WATER IMPROVEMENT DISTRICT NO. 1, Appellee.
    No. 11404.
    Court of Civil Appeals of Texas. Austin.
    June 1, 1966.
    Rehearing Denied June 22, 1966.
    Elbert Hooper, Jr., Austin; Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. Arthur Sandlin and Roger Tyler, Asst. Attys. Gen., for appellants.
    Briscoe & Corley, Devine, Graves, Dougherty, Gee & Hearon, Robert J. Hearon, Jr., Austin, for appellee.
   HUGHES, Justice.

Bexar-Medina-Atascosa Counties Water Improvement District No. I sued the Texas Water Commission and P. L. Garrison to cancel a water appropriation permit granted by the Commission to Garrison under the provisions of Art. 7500a, Vernon’s Ann. Tex.Civ.St. The suit was in the nature of an appeal under the provisions of Art. 7477, V.T.C.S.

The trial court granted motion of the District for summary judgment, and judgment was rendered cancelling the permit.

While the Commission is a nominal appellant and has filed an excellent informative brief it candidly states that it believes the “Trial Court correctly held the permit void.” We will, therefore, dispose of this appeal by considering P. L. Garrison as the actual or real appellant, and he will bear such appellation herein.

Art. 7500a, V.T.C.S., Sections 1 and 2, provide:

“1. Anyone may construct on his own property a dam or reservoir to impound or contain not to exceed two hundred (200) acre feet of water for domestic and livestock purposes without the necessity of securing a permit therefor.
2. The owner of any such dam or reservoir wishing to take water from such dam or reservoir for any beneficial purpose or purposes other than domestic or livestock use who elects to proceed under this Article shall file with the Board of Water Engineers of the State of Texas or its successor a sworn application for a permit on forms to be furnished by the Board upon request, containing the following information:”

On January 2, 1964, the then Texas Water Commission enacted Rule 245.1 reading:

“245.1 GENERAL: Article 7500a, Revised Civil Statutes of Texas, provides that anyone may construct on his own property a dam or reservoir to impound or contain not to exceed 200 acre-feet of water for domestic and livestock purposes without the necessity of securing a permit (Article 7500a is not applicable to navigable streams.)”

Acting under the presumed authority of Sec. 1 of Art. 7500a, appellant constructed a dam on the west prong of the Medina River, thereby creating a storage reservoir with an impounding capacity of approximately 162 acre feet of water. On October 25, 1963, appellant filed an application with the Commission for authority to divert approximately 57 acre feet of water impounded by such dam for the purpose of irrigating approximately 57 acres of land owned by appellant. This application was granted by the Commission on December 27, 1963.

It is undisputed that appellant owns a tract of land in the John A. Cunningham Survey No. 320, Abstract 75, in Bandera County, Texas, within which are located the areas to be irrigated under the above mentioned application and the storage reservoir from which water for such purpose is to be obtained.

It is also undisputed that the west prong of the Medina is a navigable stream within the meaning of Art. 5302, V.T.C.S.

The beds of all navigable streams were, prior to the enactment of the Small Bill, Art. 5414a, V.T.C.S., (1929) discussed below, property of the State. State of Texas v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 7 Texas Law Review, p. 493.

Unless the Small Bill has the effect of transferring or relinquishing the ownership of the State in the beds of navigable streams to patentees and assignees of patents or awards of land lying across or partly across navigable streams so as to make such river beds the “own property” of such patentees and assignees within the meaning of those words as used iA Art. 7500a, appellant has not built a dam on and impounded water on his “own property,” and the permit in issue is void.

It is our opinion that the Small Bill did not vest such patentees and their assignees with such title as would constitute the beds of navigable streams the “own property” of such patentees and their assignees within the meaning of Art. 7500a.

The right of a landowner to build a dam on his “own property” existed long before the enactment of the Small Bill in 1929.

The historical significance of the privilege of landowners to construct dams on their own property is that it commenced and endured for many years when the privilege did not extend to State owned river beds. If it now extends to such property, it is not the result of any legislative act expressly so providing.

All of the provisions of the Small Act are set out in footnotes.

This Act was construed in State v. Bradford, supra, and we quote from that opinion :

“In view of the importance of this matter to the state and the whole people, the courts of this state have consistently held that all grants with respect to lands under navigable waters, such as river beds and channels, are strictly construed against the grantee; that, if there is any ambiguity in the act, it will be construed in favor of the state; and, unless the act contains plain and unmistakable language expressly conveying the land under river beds and channels, it will not be construed to include them. In other words, before a statute will be construed to include land under navigable waters, such as river beds and channels, it will have to be expressed in plain and positive language and not in general language.
⅜ ⅝ ⅝ ⅜ ⅝
In 1917, section 59a, of article 16, Constitution of Texas, called the Conservation Amendment, was adopted, which in part reads as follows: ‘The conservation and development of all of the natural resources of this state, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semi-arid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other lands needing drainage, the conservation and development of its forest, water and hydro-electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the state are each and all hereby declared public rights and duties; and the legislature shall pass all such laws as may be appropriate thereto.’
5¡í * * * * *
Nor does the Small Bill violate section 59a of article 16 of the Constitution. We have already set out the material provisions of section 59a bearing upon this subject, and it specifies certain things as public rights and duties. These rights pertain to the preservation of waters of rivers and streams, for irrigation, riparian, and other uses as described therein. It is quite plain that the Legislature in the enactment of the Small Bill did not intend to grant unto the patentees or awardees and their assignees an absolute title to the land described in their patents or awards under navigable waters. The provisions of the Small Bill recognize all those rights to which the beds of statutory navigable streams or water courses had been theretofore reserved under the public policy and laws of this state. After reciting that the state relinquishes, quitclaims, and grants to the patentees and awardees and their assignees all of the lands and minerals therein contained lying across, or partly across, water courses or navigable streams, etc., subject to certain conditions, the Small Bill preserves these rights in the following language: ‘ * * * Provided that nothing in this Act contained shall impair the rights of the general public and the State in the waters of streams or the rights of riparian and appropriation owners in the waters of such streams, and provided further that with respect to lands sold by the State of Texas expressly reserving title to minerals in the State, such reservation shall not be affected by this Act; nor shall relinquish or quitclaim any number of acres of land in excess of the number of acres of land conveyed to said pat-entees or awardees in the original patents granted by the State, but the pat-entees or awardees and their assignees shall have the same rights, title and interest in the minerals in the beds or abandoned beds, or parts thereof, of such water courses or navigable streams, that they have in the uplands covered by the same patent or award; provided that this Act shall not in any way affect the State’s title, right or interests in and to the sand and gravel, lying within the bed of any navigable stream within this State, as defined by Article 5302, Revised Statutes of 1925.’ Vernon’s Ann.Civ.St. art. 5414a, §2.
The Small Bill does not contravene section 59a of article 16 of the Constitution, for the reason that this act expressly reserves to the state, and the public generally, and excepts from the operation of the act, the natural resources located in the river beds affected and, by implication, the necessary accompanying rights of ingress and egress to those resources, and all other rights necessary to their proper use and development.
⅜ ⅜ ⅜ ⅝ ⅜ ⅝
The reservation to the state and the public of the waters of streams would, under well-established rules of construction, carry with the reservation all things necessary to the practicable and substantial use of and enjoyment of the things reserved. It carries with it the power to construct dams or other works upon or across the bed of the river in order that the public might enjoy the rights of irrigation or other use of the waters. The decisions of this state hold that grants for public purposes will be liberally construed so as to fully effectuate such purpose. It is equally true that reservations for public purposes in a grant will be liberally construed so as to give full effect to such reservation, and that the reservation of a named right will necessarily carry with it any use of the property granted necessary to effectuate the reserved right.” (Italics ours.)

It is quite obvious that if the State reserved the right to build dams across navigable streams in the Small Act it did not by such Act grant such right to the beneficiaries of the Act such as appellant.

Appellant has cited several cases to establish his ownership of the bed of the Medina River and hence to sustain the validity of his permit. He quotes the following from the opinion of the Court of Civil Appeals in Strayhorn v. Jones, 289 S.W.2d 321, affirmed, 157 Tex. 136, 300 S.W.2d 623:

“As to all the lands in issue, including the river bed, it is here ruled that the Small Bill, Article 5414a Vernon’s Annotated Civil Statutes, clearly vested in the respective owners of the uplands on the Salt Fork of the Brazos River: ‘the same rights, title and interest in the minerals in the beds or abandoned beds, or parts thereof, of such watercourses or navigable streams, that they have in the uplands covered by the same patent or award ;***.’ ”

However, the Supreme Court, in affirming this case, held:

“Of course, all titles to the river beds vesting in the individual grantees are subject to ‘all those rights to which the beds of statutory navigable streams or water courses had been theretofore reserved under the public policy and laws of this state. * * *.’ State v. Bradford, 1932, 121 Tex. 515, 50 S.W.2d 1065, 1076, (15), 1077 (19).”

Also cited is Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728, for the holding that the Small Act gave “title” to the Town to that portion of the bed of Mission River within the bounds of the four leagues granted to the Town. This case was subsequent to the Bradford and prior to Stray-horn. It does not purport to question the character of title passing under the Small Act as defined in Bradford and as confirmed in Strayhorn.

United States v. Certain Tracts of Land, 93 F.Supp. 182, U.S.Dist.Ct., S.D.Texas, Galveston, is cited for the statement that, “The ‘Small Bill’ was enacted as a validating Act and should be liberally construed, and without doubt it extinguished, whatever title the State had in that part of the bed, etc. of Oyster Creek involved herein.” This was a condemnation suit in which the State of Texas was a party. It was awarded no damages, and made no complaint of this. All damages were awarded to the private claimants.

The controversy in such case, with the State, was regarding any excess acreage which may have been in the surveys crossing Oyster Creek. The State made no contention that it should be paid for the rights reserved to it under the Bradford construction of the Small Act. We are bound by this construction, and the general statement of the Federal Court in the above case cannot, if it so purports, override such construction. The Court there was not confronted with the problem with which we are wrestling, and we are confident it did not intend to modify the construction of the Small Act by our courts.

We have examined the case of Tyler v. Gonzales, Tex.Civ.App., 189 S.W.2d 519, San Antonio, writ ref., w.o.m., cited by appellant. Full discussion of it is not warranted because the opinion states that it does not clearly appear that San Miguel Creek, across a portion of which the erection of a fence was sought to be enjoined, is navigable, and because it further stated there was no evidence that the fence would interfere with any legal right the public might have in the stream. In affirming denial of the injunction the Court applied the rule that in cases tried to the Court all fact issues having support in the evidence are presumed found to support the judgment.

The importance of this case to the parties and to the public is made evident.

The District serves about 1,500 families who are dependent upon water from Medina Lake for irrigation, for domestic purposes and for their livelihood. The dam forming Medina Lake was completed in about 1913 and it and the many miles of canals and laterals were operated for about 12 years by the Medina Valley Irrigation Company. In 1925 the District was formed and acquired the entire system. Since 1934 families in the District have been paying bond taxes at the rate of $1.65 to $1.92 per acre annually and flat rate charges of $1.00 per acre to $1.75 per acre, in addition to charges for water. The District has paid in full its bonded indebtedness of $2,500,000. Irrigated land is of course more valuable than dry land and much land has been purchased at higher price for irrigated land on the faith of the existing system. Banks in the area have based their loans on these values; school districts have issued bonds on the faith of them; outside lending institutions have extended millions of dollars in credit; farmers have invested in equipment and material which would become virtually valueless if they could not irrigate.

The Court judicially knows the nature of the country upstream from the District and to the west of Medina Lake. This is primarily ranching country. While water is of course needed for domestic and livestock purposes, it has not been an area of irrigated farms. If ranches in this area are to be permitted to construct dams ac-cross the Medina River and its tributaries without regulation, then by that process the entire downstream economy is in danger of being substantially injured.

Conversely, it appears through an Amicus Curiae brief filed on behalf of the Southwestern Cattle Raisers’ Association that, “If the ruling of the Trial Court is upheld in this case, it could have far-reaching consequences adverse to hundreds of Texas land-owners with interests similar to appellant. * * * ” We quote further from that brief:

“As this Honorable Court judicially knows from personal observation, stock ponds, tanks and small lakes dot the countryside throughout the width and breadth of the State. Acting on the premise that a man can do what he wills on his own land so long as it does not damage his neighbor, farmers and ranchers have provided water supplies for themselves, their families, and their livestock confident in the belief that the law accorded them this right and since 1895, bolstered by the legal protection afforded them by Section 1 of Article 7500a, V.A.C.S., and its predecessor statutes.
⅜ ⅜ H? ⅜ ⅜ ⅜
If the ruling of the Trial Court is upheld, the owners of countless stock ponds, tanks, and small lakes will face perplexing decisions and, in many cases, economic hardship. How can the owners determine whether their dams and reservoirs are located on streams defined as navigable under Article 5302? Will they have to measure the watercourse from its mouth up to ascertain whether it averages less than 30 feet in width at the place of impoundment? If they do and the surveys show the streams to be statutorily navigable, will they have to destroy their dams and reservoirs, even when the stream bed has been privately owned by them?”

All of these questions of hardship resulting from any decision which we make have weighed heavily upon us but it is not our responsibility to resolve them. This must be accomplished through policy making channels of our government. Our sole duty is to declare the law as we find it, and to render judgment accordingly. This we do by affirming the judgment of the trial court, for the reasons herein stated, cancelling the Permit issued to appellant as having been unlawfully issued under the provisions of Art. 7500a, V.T.C.S.

Affirmed.

      . Now the Texas Water Rights Commission.

      . See Art. 5414a-l, V.T.C.S.

      . See Acts 1895, 24th Leg., Reg.Sess., Ch. 21, Sec. 10, p. 23, Acts 1917, 35th Leg., Reg.Sess., ch. 88, Sec. 16, p. 215, Acts 1925, 39th Leg., Reg.Sess., ch. 136, Sec. 2, p. 341. There was a hiatus between 1913 and 1917 caused by omission from and the repealing provisions of the Irrigation Act of 1913, 33rd Leg., Reg.Sess., eh. 171, p. 358. There were also enactments subsequent to 1925.

      .“Art. 5414a. Validating patents on lands lying across or partly across water courses or navigable streams.
      Section 1. All patents to and awards of lands lying across or partly across water courses or navigable streams and all patents and awards covering or in-eluding the beds or abandoned beds of water courses or navigable streams or parts thereof, which patents or awards have been issued' and outstanding for a period of ten years from the date thereof and have not been cancelled or forfeited, are hereby confirmed and validated.
      Sec. 2. The State of Texas hereby relinquishes, quitclaims and grants to pat-entees and awardees and their assignees all of the lands and minerals therein contained, lying across, or partly across watercourses or navigable streams, which lands are included in surveys heretofore made, and to which lands patents or awards have been issued and outstanding for a period of ten years from the date thereof and have not been cancelled or forfeited, and the State of Texas hereby relinquishes, quit-claims and grants to patentees and awardees and their assignees all of the beds, and minerals therein contained, or water courses or navigable streams, and minerals therein contained, or water courses or navigable streams, and also all of the abandoned beds, and ' minerals therein contained, of water courses or navigable streams, which beds or abandoned beds or parts thereof are included in surveys heretofore made, and to which beds or abandoned beds, or parts thereof, patents or awards have been issued and outstanding for a period of ten years from the date thereof, and have not been cancelled or forfeited; provided that nothing in this Act contained shall impair the rights of the general public and the State in the waters of streams or the rights of riparian and appropriation owners in the waters of such streams, and provided further that with respect to lands sold by the State of Texas expressly reserving title to minerals in the State, such reservation shall not be affected by this Act; nor shall relinquish or quit-claim any number of acres of land in excess of the number of acres of land conveyed to said patentees or awardees in the original patents granted by the State, but the patentees or awardees and their assignees shall have the same rights, title and interest in the minerals in the beds or abandoned beds, or parts thereof, of such water courses or navigable streams, that they have in the uplands covered by the same patent or award; provided that this Act shall not in any way affect the State’s title, right or interests in and to the sand and gravel, lying within the bed of any navigable stream within this State, as defined by Article 5302, Revised Statutes of 1925.
      Sec. 3. All of the provisions of this Act shall apply equally to all Spanish and Mexican land grant and titles issued by the Spanish or Mexican Governments prior to the Texas Revolution of 1836, which have subsequently been recognized by the Republic of Texas, or by the State of Texas as valid. Acts 1929, 41st Leg., p. 298, ch. 138.”


source: Caselaw Access Project

author: PRESLAR, Justice.

license: Public Domain

text:
    Lawrence BLACK, Appellant, v. George L. JOHNSON, Sr., et al., Appellees.
    No. 5764.
    Court of Civil Appeals of Texas. El Paso.
    May 25, 1966.
    Rehearing Denied June 15, 1966.
    Lee Arnett, San Angelo, Murray Howze, Monahans, for appellant.
    Ken Griffin, Odessa, for appellees.
   OPINION

PRESLAR, Justice.

This was a suit for breach of an implied covenant against encumbrances on real property brought by appellees, as plaintiffs, against defendant-appellant, in which judgment was entered against defendant on his failure to appear on the date of trial. Motion for new trial was duly filed, presented and overruled, and defendant appeals.

We hold that the motion for new trial should have been granted.

Basis of plaintiffs’ suit is for recovery of taxes paid by them on property acquired by warranty deed from defendant. It was alleged that the taxes being due and unpaid at the time of the transaction amounted to an encumbrance in violation of the warranty.

Plaintiffs filed their original petition on September 2nd, and defendant, through his attorney, John Howze, filed timely answer. Plaintiff, on October 16th, with notice to defendant’s attorney, requested a setting of the case on the non-jury docket for November 4th. On October 21st plaintiffs filed their first amended original petition, furnished defendant’s attorney a copy, and had citation issued for service on the defendant. Service was had on the defendant on this amended petition on October 24th, and being in regular form, it commanded the defendant to appear by filing a written answer to the plaintiffs’ first amended original petition at or before 10 o’clock A.M. of the Monday next after the expiration of 20 days after the date of service, which would have been November 16th. Meanwhile, back at the courthouse, the court continued the November 4th setting to November 6th, and on that date attorney Howze appeared and orally requested continuance until November 9th, which was granted. On November 9th attorney Howze failed to appear and the case proceeded to trial and judgment was granted. Through his present attorney, defendant filed his motion for new trial on November 19th and alleged, among other things, that he had used due diligence to prevent entry of the default judgment and that he had a meritorious defense to the cause of action. An amended answer was filed, prior to the hearing on the motion for new trial, in which defenses were pleaded in detail.

On the hearing on the motion for new trial the defendant testified that he had not seen attorney Howze since he first employed him. He also testified that he had no knowledge of the setting of his case for trial, and no knowledge of the judgment being taken against him until he went to a bank in Monahans and found that a writ of garnishment had been issued. It was the defendant’s testimony that he had in the past been involved in law suits, employed other attorney, had always been advised by them when his case was set for trial, and that he thought Mr. Howze would so notify him. He stated that after the second set of papers were served on him in this suit, he attempted, unsuccessfully, to contact Mr. Howze, and then employed his present counsel, Mr. Arnett. This was done a day or two before the first Monday after twenty days after service of the amended petition. The attorney for the plaintiffs offered testimony as to having given notice of the November 4th setting to Mr. Howze, agreeing with him that it could be passed until the 6th of November, and how on that date Mr. Howze appeared in court and requested the continuance to November 9th, stating that he had been unable to contact his client and that he needed to amend his pleading.

Thus we have a party and his attorney failing to appear for trial. The attorney had knowledge of the setting and that knowledge was imputed to the client; but the client had been formally served with written notice to appear at a later date. Judgment was granted on November 9th, while the appearance day under the service of the amended pleading was November 16th.

Under such circumstances we think the court erred in not granting a new trial under the rules set out by our Supreme Court in the case of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, at 126:

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff. Such a rule has the sanction of equity.”

While the failure of the attorney to appear is unexcused in the record before us, the facts establish an excuse for the failure of the party himself to appear. True, knowledge of the attorney is imputed to the party defendant, but contrasted with this “imputed knowledge” was an order issued to this defendant under the seal of the court, served by the sheriff, and commanding him to appear at a different date from that imputed. This was not the usual situation where one who has answered is thereafter charged with knowledge of subsequent proceedings in the case, for here the attorney was not the defendant’s only link with the court; through the citation he received a direct communication from the court. We do not think his actions show a conscious indifference on his part, nor an intentional failure to appear. Apparently he was misled by the citation as to the time he was to appear, for he attempted to contact his attorney prior to appearance day and, failing in that, he employed another. We cannot escape the fact that the plaintiffs caused this second citation to be served on the defendant, so that they must share the responsibility for any resulting confusion. Certainly they should not profit from it if, in fact, it caused the defendant not to have his day in court. It is to be noted that the suit was instituted on September 2nd, amended petition filed October 21st, and judgment granted November 9th. Motion for new trial was filed November 19th, and the record does not reflect that a granting of it would have caused great delay or would have worked any hardship on the plaintiffs. True, a new trial defeats, to some extent, the objective of a speedy termination of litigation, but speed must yield when it conflicts with substantive rights. Our Rules of Civil Procedure provide that their purpose is to obtain “a just, fair, equitable and impartial adjudication of the rights of litigants * * * with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable * * Rule 1, Texas Rules of Civil Procedure. The defendant offered testimony at the hearing on the motion for new trial, and from that we are of the opinion that he met the test required of one seeking a new trial so far as the issue of meritorious defense is concerned. In their briefs before this court the parties appear to treat the matter of a meritorious defense in the same manner as would be necessary to establish it in a regular trial or in a bill of review. This was not a bill of review, nor a motion to set aside a judgment within the thirty-day period when the court retains control of its judgment. It was a motion for new trial brought within the ten-day time prescribed by Rule 329-b, T.R.C.P. Under such situation the defendant was required only to show state of facts from which it may be determined that he was deprived of making a defense that he was entitled to make and would have made, and that injustice had resulted to him by reason of fact that case had proceeded without presentation of that defense. Maeding v. Maeding, Tex.Civ.App., 155 S.W.2d 991; Smith v. Hillsboro State Bank, Tex.Civ.App., 253 S.W.2d 897.

In addition to Craddock v. Sunshine Bus Lines supra, we 'think the following cases require the conclusion which we have reached: Hanks v. Rosser (S.Ct.), 378 S.W.2d 31; City of San Antonio v. Garcia, Tex.Civ.App., 243 S.W.2d 252 (wr.ref.); Hey v. Reynolds, Tex.Civ.App., 319 S.W.2d 194 (ref., n. r e.); Cragin v. Henderson County Oil Development Co. (Com. B), Com.App., 280 S.W. 554; Reynolds v. Looney, Tex.Civ.App., 389 S.W.2d 100 (ref., n. r. e.).

Under this disposition of the case we are sustaining appellant’s combined Points of Error Six through Eight, and do not pass on the other points raised.

The judgment is reversed and the cause is remanded with instructions to set aside the default judgment and grant a new trial. The costs of the trial court to date are assessed against the appellant. The costs of appeal are assessed against appellees.


author: DONNELLY, Judge. HOLMAN, Judge FINCH, Judge

text:
    LAND CLEARANCE AUTHORITY, Plaintiff-Respondent, v. Elmer G. DOERENHOEFER, Exceptions of Jack Esses Distributing Company, Defendant-Appellant.
    No. 50921.
    Supreme Court of Missouri, En Banc.
    July 11, 1966.
    Irvin Dagen, St. Louis, for plaintiff-respondent.
    Nathan Kaufman, Guilfoil, Caruthers, Symington, Montrey & Petzall, John P. Montrey, St Louis, for appellant.
   DONNELLY, Judge.

This is a condemnation case wherein Land Clearance for Redevelopment Authority of the City of St. Louis is the plaintiff-respondent (the Authority), and Jack Esses Distributing Company is the defendant-appellant (Esses).

Esses has appealed from a judgment entered on a jury verdict assessing Esses’ damages at $55,000. The record shows that Esses’ claimed damages totaled $79,022 and evidence was adduced to support said claim. The amount in dispute, therefore, is $24,022. This Court has jurisdiction. Missouri Const.1945, Art. V, § 3, V.A.M.S.; State ex rel. State Highway Commission v. Rauscher Chevrolet Co., Mo. Sup., 291 S.W.2d 89.

The property condemned was located on the southeast corner of Fourth and Clark Streets in St. Louis, Missouri. It extended fifty-nine feet, ten inches along Fourth Street and seventy-three feet, two inches along Clark Street, with a building thereon consisting of four floors and a basement. Esses operated a wholesale and retail distributorship of general merchandise.

Esses’ appraiser, George C. Hetlage, testified that the fair market value of the property taken was $79,022. Thomas J. O’Toole, testifying for the Authority, estimated the damages -at $50,000. Charles R. McCoy, testifying for the Authority, estimated the damages at $49,000. The property was taken by condemnation in March, 1963.

The questions on this appeal involve whether the trial court erred in admitting certain testimony.

First, Esses alleges the trial court erred in admitting evidence showing that Esses purchased the property in March of 1954 for $40,000.

In State ex rel. State Highway Commission v. Rauscher Chevrolet Co., supra, 291 S.W.2d 89, this Court stated at page 92: “It is the established rule in this state, and generally, that the price an owner paid for property being condemned is admissible as some evidence of its value at the time of appropriation. That rule applies unless circumstances appear which destroy the revel-ancy or probative value of that otherwise relevant and highly important evidence. For example, the purchase must have been recent and not remote in point of time. Marked changes in conditions or values must not have occurred since the sale. The sale must have been voluntary in the sense that the seller and buyer were each capable and desirous of protecting his interest. The sale must not have been a forced sale, such as a tax or foreclosure sale. ⅜ * * ”

The taking by condemnation in March of 1963, was nine years after the purchase of the property in March, 1954. After the purchase, and before the taking, the Veterans Bridge across the Mississippi River and the Third Street Highway were opened, construction of the riverfront memorial project was begun, the Pierce Building and Cotton Belt Building were remodeled, the Old Courthouse at Fourth and Market Streets was made into a national monument, a new office building was constructed nearby upgrading the neighborhood, railroad tracks along the riverfront were hidden, the construction of the Gateway Arch was started, and Esses had made some improvements on the property. When Esses purchased the property in 1954 for $40,000 it relinquished a five-year lease on the property. This lease encompassed 2,500 square feet on the first floor of the building, 2,500 square feet on the second floor, 4,100 square feet on the fourth floor, and 225 square feet in the basement, for a total rental of $4,200 per year. The record shows that this lease was for five years, beginning in 1950, with a five-year option. There is no evidence as to whether the relinquishment of the lease was favorable or unfavorable to Esses, although there is an inference that the negotiations for purchase were begun pursuant to a request by Mr. Showers, one of the sellers.

Esses contends that the instant case comes within the exception to the general rule set forth in the Rauscher case, supra. We believe that the circumstances in evidence do not destroy the relevancy and probative value of this evidence. In City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, nine years elapsed and The Great Depression intervened between the purchase and the taking, and similar evidence was there held to be admissible. The testimony here showing Esses purchased the property in March of 1954 for $40,000 was admissible as some evidence of value. The purchase price was relevant evidence in helping the jury to arrive at its verdict. Mr. Hetlage, appraiser for Esses, stated that this evidence tended to support his estimate of the value of the property at the time of taking. The verdict assessed Esses’ damages at $55,000. The jury could reasonably have concluded that over the nine-year period since the purchase, and in view of the improvements made by Esses and the upgrading of the neighborhood, the fair market value of the property had increased by the amount of $15,000. The trial court did not abuse its discretion in permitting the jury to consider this evidence. State ex rel. State Highway Commission v. Schutte Inv. Co., Mo.Sup., 334 S.W.2d 241, 246; State ex rel. State Highway Commission v. Johnson, Mo.Sup., 287 S.W.2d 835, 837.

Esses cites Metropolitan St. R. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860, and Kansas City v. Thomson, Mo.Sup., 208 S.W.2d 216, for the proposition that prices paid by the condemning authority for comparable property are not admissible on the question of market value of the condemned property in issue. Esses urges that this rule and the rule announced in the Rauscher case, supra, represent “a double standard.” We do not agree. The Rauscher rule contemplates a situation where the sale is voluntary between seller and buyer. The rule stated in Kansas City v. Thomson, supra, contemplates a situation where an element of coercion is present.

Second, Esses alleges the trial court' erred in admitting evidence that, after Esses moved from the property at Fourth and Clark Streets to a building at Tenth and Clark Streets, Esses paid a rental of twenty-five cents per square foot. The Authority contends this evidence was admissible and cites State ex rel. N. W. Elec. Power Co-op, Inc. v. Waggoner, Mo.App., 319 S.W.2d 930; City of St. Louis v. Paramount Shoe Mfg. Co., supra, 237 Mo.App. 200, 168 S.W.2d 149; and St. Louis Housing Authority v. Bainter, Mo.Sup., 297 S. W.2d 529. In none of these cases was the admissibility of evidence of rental income from comparable properties involved. They are not in point.

While evidence of rental income derived from the property condemned has been held admissible to show the market value of the property, City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600, 607; State ex rel, State Highway Commission v. Flynn, Mo. App., 263 S.W.2d 854, 857, evidence of rental value of comparable property in the neighborhood is generally not admissible to prove the fair rental value of the property condemned. State ex rel. State Highway Commission v. Vorhof-Duenke Co., (En Banc) Mo.Sup., 366 S.W.2d 329, 340 [16]; 5 Nichols on Eminent Domain, 3rd Ed., § 19.21 [1], and thirteen cases there cited, from eight jurisdictions. The reason is that such testimony “does not have the independent evidentiary value of an arms-length sale of comparable property in the vicinity.” State ex rel. State Highway Commission v. Vorhof-Duenke Co., supra, 366 S.W.2d 329, 340, that would “warrant the extension of the field of controversy and fact finding which is entailed in its admission.” 5 Nichols, supra, § 19.21 [1]. Therefore, if this evidence had been offered in the first instance by the Authority, it would have been properly excluded. However, other factors must be considered.

The record shows that early in the trial, the Authority, on cross-examination of Jack Esses, attempted to get before the jury evidence of the twenty-five cents per square foot rental paid by Esses under the lease at the location at Tenth and Clark Streets. At that time Esses’ objection to this evidence was sustained by the trial court. Later in the trial, on direct examination, to establish market value of the property condemned, Esses’ expert witness Het-lage undertook to show its rental value. The property was not being rented because occupied by the owner, so it was necessary to establish a hypothetical rental value of the property. To do so Hetlage testified as to rentals received on comparable properties. His testimony, in part, is as follows:

“Q. I don’t mean to interrupt. If you’re going to move on to the next approach, why, you just go ahead.

“A. Well, on the basis of the capitalization of the income we arrived at a figure of some forty-one cents per square foot as reasonable annual rental for the space.

“Q. How did you arrive at the average, Mr. Hetlage?

“A. We visited other properties in the area and secured rentals that were being paid on similarly occupied somewhat smaller properties.

“Q. Can you tell what other properties you’re talking about?

******

“THE WITNESS: There was the Washau property, two doors south of the subject property. I do not have the street ad[d]ress. This premise here rented at an average of forty-one and eight tenths cents per square foot, and had no elevator, and was rather inferior to the subject property.

“Another property was [sic] investigated was one occupied by the Mass. Sales Co. This was at 306 South Fourth Street, and next door to the subject property. It figured out to have a rental of sixty and one-half cents per square foot of floor area. In this case we felt that the property had an elevator and we felt in some respect ii was superior to the subject property.

“Another one that was investigated was Proctor Sales. That was in the block north of the subject property. It had no elevator. It too, was considered to be somewhat superior to the subject property. It rented at seventy cents per square foot.

“I felt these things justified the conclusion that we arrived at for this rental rate. * *

On cross-examination, Hetlage was questioned as to the rental paid (twenty-five cents per square foot) at the Tenth and Clark Streets location. At this time, and later when similar evidence was elicited from the Authority’s witness O’Toole, Esses’ objections were overruled by the trial court.

We regard this chain of events significant. The trial court did not allow evidence of the rental paid at Tenth and Clark Streets until after Esses had introduced evidence of rental income from properties in the area other than the condemned property. Esses injected the matter of comparable rentals into the case and is in no position to complain here. State ex rel. State Highway Commission v. Schutte Inv. Co., supra, 334 S.W.2d 241, 247; 88 C.J.S. Trial § 116, p. 236; 31A C.J.S. Evidence § 190a, pp. 509-512. “Where a party voluntarily accepts an evidentiary theory tendered by his adversary and offers evidence of the same kind and character, he waives his right to assert on appeal that his opponent’s evidence was erroneously admitted. * * * ” Jackson County v. Meyer, Mo.Sup., 356 S.W.2d 892, 897.

The trial court did not abuse its discretion when it admitted the evidence in question. Biener v. St. Louis Public Service Co., Mo.App., 160 S.W.2d 780, 786.

The judgment is affirmed.

HYDE, HENLEY and EAGER, JJ., concur; HOLMAN, J., dissents in separate dissenting opinion filed; FINCH, J., dissents in separate dissenting opinion filed; and STORCKMAN, C. J., dissents and concurs in separate dissenting opinions of HOLMAN, J., and FINCH, J.

HOLMAN, Judge

(dissenting).

I respectfully dissent upon both points ruled in the principal opinion. Under the particular facts of this case I do not think evidence of the purchase price should have been admitted. This because of the lapse of nine years and the many changes that had occurred in the area which should have greatly increased the value of the property. The remoteness, the changes, and the fact defendant had a leasehold interest on the property when it was purchased, considered together, would destroy the relevancy and probative value of that testimony.

I agree with the rule stated in State ex rel. State Highway Commission v. Rauscher Chevrolet Company, Mo.Sup., 291 S.W.2d 89, but it should be noted that that case involved the question as to whether evidence of the sale price of property sold during the pendency of the condemnation proceedings was admissible. The ruling in Rauscher has no application to the question we are considering. Several court of appeals cases have dealt with this question. In State ex rel. Highway Commission v. Malone, Mo.App., 45 S.W.2d 84, evidence of the price paid several years before the date of taking was held inadmissible where the land was shown to have depreciated in value after the date of purchase. In State ex rel. State Highway Commission v. Pope, Mo.App., 74 S.W.2d 265, 270, the court held it was not error to exclude evidence of the purchase price because the “eviclence related to a time too remote to be of value or competent in estimating the market value of the property taken five years later and during a period, when, as the court well knows, property had greatly depreciated in value generally. The value of the land condemned relates to the time of the appropriation.” As indicated in the principal opinion evidence of the purchase price nine years before the taking was held admissible in City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149. This court held evidence of the purchase price admissible in State ex rel. State Highway Commission v. Schutte Investment Company, Mo.Sup., 334 S.W.2d 241, but there the lapse of time between the purchase and taking was just slightly more than one year.

A case which should be discussed in connection with the point here involved is State ex rel. State Highway Commission v. Johnson, Mo.Sup., 287 S.W.2d 835, 837. The opinion therein held that it was not error to permit testimony of the purchase price paid about 25 years before the date of taking because there was evidence “that property values in the area had increased since 1929 [time of purchase], and since the witnesses of both parties valued the property before it was taken at more than $25,000 [purchase price].” That opinion was written prior to the time this court adopted the rule set out in the Rauscher case. In view of the Rauscher rule I respectfully suggest that the Johnson case should no longer be followed on the point we are considering. The basic reason for holding the testimony admissible in Johnson was that the property had increased in value and that would have been a reason for excluding it under the Rauscher rule.

As indicated, I would hold that the trial court erred in admitting evidence of the purchase price in this case.

I also have the view that the trial court erred in admitting evidence of the amount of rent paid by defendant Esses for the property to which it moved after surrendering possession of the property condemned. That property is located six blocks from the property taken. The principal opinion holds that evidence of the rental paid on properties other than that being condemned is not admissible. However, it justifies the admission of the testimony under consideration for the reason that Esses’ appraiser testified that he considered the rent paid for three nearby properties in forming his opinion as to the fair rental value of the property condemned. One of those properties was next door to the subject property, another was two doors from it and the third was located not more than a block away. Apparently no objection was made to that evidence by plaintiff.

I do not think the foregoing testimony was a sufficient reason for admitting evidence as to the rental value of property six blocks away. That distance in a rural area would not be considered remote but in downtown St. Lguis a distance of six blocks will usually reach an area which is not comparable. It will certainly open the door to a likelihood of confusing juries to hold that evidence on a collateral issue, such as this one, is admissible concerning properties within a twelve block area surrounding the property being condemned. Moreover, it is obvious that plaintiff had some other reason for eliciting this evidence because it sought to prove such during its case in chief and the court properly excluded it. It is also difficult to’ credit plaintiff with good faith in contending that the evidence in question was admissible in order to contradict the testimony of Esses’ appraiser that the condemned property had a fair rental value of 41 cents a square foot because it’s two experts respectively testified that the rental value of that property was 45 cents and 34 cents per square foot, an average of which would be about the same rental fixed by Esses’ witness.

I have concluded that testimony to the effect that Esses was able to rent property in which to carry on its business for 25 cents a square foot was highly prejudicial. All of the evidence indicated that the property taken had a fair rental value of about 41 cents per square foot. If Esses was able to obtain an apparently satisfactory place to carry on its business at a rental which was much less than the rental value of the condemned property, the jury was very likely to conclude that Esses had not fared so badly in having its property taken by plaintiff.

I would reverse the judgment and remand the case for a new trial.

FINCH, Judge

(dissenting).

I respectfully dissent from the majority opinion herein and concur in the dissenting opinion of Judge Holman.

The majority opinion holds that evidence of the price paid in 1954 by Esses for the property being condemned was admissible as some evidence of value as of the date of taking. This is done on the authority of State ex rel. State Highway Commission v. Rauscher Chevrolet Co., Mo., 291 S.W.2d 89. In my judgment, the opinion in the Rauscher case would make “this evidence inadmissible. It holds, l.c. 92, that the general rule that the price-the owner paid for property being condemned is admissible as some evidence of its value at the time of appropriation, is subject to certain provisos. Some of those, l.c. 92, are that “the purchase must have been recent and not remote in point of time. Marked changes in conditions or values must not have occurred since the sale.” The majority opinion recognizes and enumerates marked changes and improvements in the area, including the start of the Gateway Arch and the development of the riverfront area, and also recognizes that the purchase had been made nine years before. These conceded changes in the neighborhood, together with the lapse of time, made this evidence inadmissible under the Rauscher rule.

On reason and logic, this testimony of the 1954 purchase should not be admissible in ■ this case. The sole and only purpose of the trial was to arrive at the fair market value of the property condemned as of the date of taking, which was 1963. Evidence is admitted for the purpose of determining that question and that question only. What the market value was at another date is wholly immaterial except that if there has been no material change in character of the neighborhood and property values have remained relatively constant, the amount of the purchase price paid becomes material because it is evidence of the fair market value at the time of taking.

Under the facts as recognized and enumerated in the majority opinion, the neighborhood where this property was located had changed. The Rauscher opinion refers to “marked changes.” It would be fair to say in this instance that there had been radical changes. The construction of the Gateway Arch and the entire riverfront renovation project revolutionized the situation in that area. The situation in 1963 was not the same as in 19S4. The two experts on value who testified for the Authority fixed the value of the property condemned at the time of taking at $49,000 and $50,000, respectively. Hence, they did not fix a value substantially the same as the purchase price paid in 1954. In fact, no one did. Under those circumstances, evidence of what Esses paid in 1954 was evidence only of what the fair market value was in 1954, not what it was in 1963. It was not corroborative of any other evidence as to value in 1963 and should not have been admitted.

There is a further reason why the evidence was not admissible. When Esses acquired this property in 1954 for $40,000, the transaction also involved the cancellation of a five-year lease on the property held by Esses. No evidence was offered to show whether this was advantageous to Esses or to the seller, or how the cancellation of that lease affected the purchase price paid by Esses. There was no evidence to show whether the amount paid was higher or lower than it would have been if the lease had not been in existence and had not been can-celled. If the transaction in 1954 had included the purchase of a second tract and the $40,000 purchase price had been a lump sum payment for both, it is obvious that the sale price would not have been admissible unless broken down between the two tracts so that the evidence pertained only to the purchase price of the tract being condemned. For the same reason, evidence as to the purchase price paid in the transaction when it covered not only real estate purchased but the cancellation of a five-year lease was not admissible.

I would reverse and remand for a new trial.


author: SPERRY, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. William H. HUTCHISON et al., on Exceptions of Ralph C. Boyer, Respondent.
    No. 24392.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.

      Robert L. Hyder, Joe Bill Carter, Robert E. Douglass, Jefferson City, for appellant.
    Frith & Lewis, by Robert C. Frith, Chillicothe, for respondent.
   SPERRY, Commissioner.

This is a highway condemnation suit instituted by plaintiff against defendant to acquire land for the purpose of relocating highway 170, in Livingston County, and for raising the level of the roadbed to a height of eleven feet above flood waters. Commissioners were appointed and assessed damages in the sum of $2,350.00. Plaintiff appealed. Trial to a jury resulted in a verdict in the amount of $1,350.00. Defendant moved that the verdict be set aside and that he be granted a new trial on the stated grounds that the verdict is against the weight of the evidence and is grossly inadequate. The court found that the verdict is inadequate and against the weight of the evidence, and ordered a new trial. Plaintiff appealed.

Defendant owned 100 acres of bottom land, located in the valley of the Thompson branch of the North Grand River. It was rectangular in shape, ¼ mile wide, from east to west, and ⅝ of a mile long, from north to south. It lay south of and adjacent to “old” 170 highway. This section of 170 highway was relocated to the south, across this tract, its entire width from east to west, and the roadbed was raised to a height of eleven feet above the level of the farm. Thereafter, 30 acres lay to the north of new 170 and 66.37. acres to the south. The land actually taken for a roadway and for a drainage ditch (the dirt taken from the ditch was used in the road) was 8.63 acres. The land was subject to some overflow from the river and the drainage across it was from northeast to southwest. Defendant contends that the land actually taken was worth $150.00 per acre; that the north 30 acres will be greatly damaged because the overflow water will be dammed by the eleven foot high road embankment, without an adequate outlet for the overflow water, thereby making of it a swamp; and that he has been datnaged by a severance of his land into two separate pieces. He claimed that his farm, as a whole, had been damaged in the amount of $5000.00. He offered substantial evidence tending to establish these contentions.

Before any evidence was taken it was announced that, by agreement of the parties, the judge and the jury would view the property, which was done. They rode along old 170 and also along relocated 170, and looked at the land and the construction works.

Plaintiff adduced testimony tending to prove defendant’s total damages to be no more than from $275.00 to $420.00. It contends that the court lacked power to adjudge a new trial on the grounds that the verdict was inadequate and against the weight of the evidence, because the jury, by agreement of the parties, viewed the land and the construction and could, and did, determine the amount of damages based on what they themselves saw; that the parties thereby bound themselves to abide by the verdict. This is a novel theory.

It is the law that a trial judge may, in his discretion, grant one new trial on the ground that the verdict is against the weight of the evidence. In State ex rel. State Highway Commission v. Belvidere Development Co., Mo., 315 S.W.2d 781, 784, the court said:

“Plaintiff has misconceived the province and power of the trial court when, acting in the exercise of its discretion, it sets aside a verdict and awards a new trial on the ground the verdict was against the weight of the evidence. It is true that this discretionary ground is a ‘legal’ ground for awarding a new trial in the sense that the trial court has the inherent legal power to award a new trial on such discretionary ground. Mavrakos v. Mavrakos Candy Co. (359 Mo. 649, 223 S.W.2d 383), supra. But, in the exercise of this discretionary power, the trial court is not treating with the question of the law of a case. The trial court is. weighing conflicting evidence on the factual issues, and if the trial judge believes.the verdict of a jury is against the weight of the evidence, he has the duty to direct the entry of the trial court’s order granting a new trial.
“In giving Instruction No. 6, an instruction on the credibility of the witnesses, the trial court in the prefatory sentence we have quoted was apparently advising the jury of the jurors’ trial function, vested exclusively in them, of judging the credibility of witnesses and the weight and value of the testimony. In making up their verdict it is the jurors’ exclusive province to weigh the evidence introduced on the factual issues submitted to them. Of course, the trial court in giving Instruction No. 6 did not delegate or surrender to the jury or waive the trial court’s discretionary power, after verdict, to grant one new trial on the ground the verdict was against the weight of the evidence. And the trial court, by this exercise of discretion, did not ‘reverse its position’ with respect to the giving of any instruction.
“It has been so often said that a trial court is vested with an inherent and broad discretion in granting one new trial on the ground the verdict and judgment are against the weight of the evidence. See some of the more recent cases — Hoppe, Inc., v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 23 A.L.R.2d 846; Dawson v. Scherff, Mo.Sup., 281 S.W.2d 825; Liddle v. Collins Const. Co., Mo.Sup., 283 S.W.2d 474; Andres v. Brown, Mo.Sup., 300 S.W.2d 800; Schmidt v. Allen, Mo.Sup., 303 S.W.2d 652; reference is now again made to Vol. 22, West’s Missouri Digest, New Trial, for the many other and earlier cases. See also the statute, Section 510.330 RSMo 1949, V.A.M.S. The trial court’s ruling upon that ground will not be disturbed, except in cases of manifest abuse. Dawson v. Scherff, supra. ‘The rule is sometimes expressed by saying “that the granting of a new trial by the trial court will not be interfered with on appeal where there is substantial evidence to sustain the trial court’s view, or, putting it in another way, when there is substantial evidence to support a verdict for the party to whom a new trial is granted.” Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 131, 52 S.W.2d 839, 845.’ Dawson v. Scherff, supra (281 S.W.2d 831)”.

The court was vested with the power to so exercise its discretion if there was substantial evidence in the case to support a verdict in a larger amount than that awarded by the jury. The award of the commissioners who assessed the damage was that defendant was damaged in the sum of $2350.00. There was substantial testimony tending to establish damages of $5000.00. Certainly, the court had the discretionary power to act in this case. Union Electric Co. v. McNulty, Mo., 344 S.W.2d 37, 39.

However, plaintiff says the court lost that power because the jury, by agreement of the parties, viewed the property affected and thereby agreed that they would abide the jury’s verdict. There is nothing in the record indicating that any such agreement to abide the verdict was made between the parties. At most, it could only have been implied. But, whether implied or express, the power of the court to grant a new trial on the weight of the evidence may not be difninished on any such flimsy grounds. The court saw the witnesses, observed their demeanor on the witness stand, was in a position to judge of their interests and qualifications, and also viewed the highway and the land involved.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

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

HOWARD and BLAIR, JJ., concur.

CROSS, P. J., not participating.


text:
    Martin KELLAM, Plaintiff-Appellant, v. Clyde COOPER and James L. Curtis, Defendants-Respondents.
    No. 24425.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    J. B. Beavers, Cameron, Robison & Miller, Maysville, for appellant.

      Bob F. Griffin, Griffin & Griffin, Cameron, for respondents.
   SPERRY, Commissioner.

Plaintiff sued defendants for damages he ■ claims to have suffered when defendants’ cattle got into his pasture. He prayed for damages in the amount of $2,550.00. Defendants counterclaimed for damages to their cattle in the sum of $3,595.00. The case was tried to the court. The court found that the evidence offered by each of the parties was so inconclusive that neither carried the burden of proof necessary to recover against the other. Recovery was denied to both parties and each was ordered to pay half of the court costs. Plaintiff appealed.

We agree with plaintiff, that there are more questions of fact involved in this case than there are legal ones.

Defendants have not appealed. Consequently, we are not concerned with the facts, as they relate to the counterclaim. Since this was a court tried case we will review it upon both the law and the evidence as in suits of an equitable nature. The judgment will not be set aside unelss clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Section 510.310(4) RSMo. 1959, V.A.M.S.; City of Kirksville v. Young, 252 S.W.2d 286, 288 (Mo.). The rule of deference is especially applicable where the evidence consists largely of conflicting oral testimony.

Plaintiff and defendants each owned a herd of cattle. Plaintiff pastured his dairy cattle on an eighty acres of land adjoining another eighty acres upon which defendants pastured their stock cattle. These two eighties were each ½ mile in length, from north to south. They were separated by a common fence and it was the responsibility of plaintiff to maintain, in a “cattle proof”, or “stock tight” condition, the north half of this fence. It was, likewise, the responsibility of defendants to so maintain the south half of the fence. As to these facts there is now agreement.

Plaintiff pleaded that defendants negligently permitted their “low grade bull” (sometimes referred to in evidence as a “scrub” bull) to break into and remain in his pasture, as a result of which ten of plaintiff’s high quality Holstein heifers were bred at an age when they were too young and too small for breeding; that, in addition, fourteen steers also broke into and remained in the pasture, where they ate valuable grass, for a period of one hundred thirty-eight (138) days; that, by reason of the conduct of the bull, plaintiff lost the calf production of the heifers; that the heifers were damaged by having their growth slowed and stunted; that he lost the grass which the cattle consumed; that the total damage he suffered was $2,550.00.

Defendants answered, alleging some defenses that are not material here. They also alleged that the cattle broke through on the north end of the fence, at a place where it was plaintiff’s duty to keep it in repair; that plaintiff had, previously, been notified of the defective condition of the fence and had been requested to repair it, but that he failed and neglected to do so; that the break through of the cattle was due to plaintiff’s negligence in that respect; and that the damages were largely due to plaintiff’s wrongful refusal to permit defendants to remove their bull and steers from the pasture, after they broke into it, when they requested permission to do so.

Plaintiff testified to the effect that, in 1963, he operated a “grade A” dairy; that he kept no bull but practiced artificial insemination; that his practice was to never breed a heifer until she was seven hundred pounds in weight and would calve at from twenty-four to thirty months of age; that he rented the east eighty acres here involved; that Mr. Curtis rented the adjoining eighty; that, in April, 1963, plaintiff moved fourteen head of choice Holstein heifers into his pasture; that nine were not bred; that they weighed from four to four hundred fifty pounds; that he inspected his heifers and found a small “scrub” Angus bull, and fourteen steers (defendants), running with them; that he notified Curtis and asked that the cattle be removed, but defendants did nothing; that the heifers were in heat when he took them to the pasture; that, on July 10, 1963, he saw the bull service some of the heifers; that he notified defendants thereof by telephone; that they remained in his pasture until September 28, 1963, when they were moved by defendants. He also testified to other facts which, he claimed, caused damages, in the total amount sued for. He stated that the cattle entered his pasture through the south half of the division fence but that he found no broken places therein. He stated that a tree, on defendants’ side, had fallen across the north half of the fence; that two posts were knocked down; that the fence was flattened; that he saw cattle tracks on both sides of the fence at this point but none on the flattened fence itself. Plaintiff stated that there is a water gap, protected by a wooden water gate which, he said, was never down or in disrepair during the entire period here involved; that Mr. Curtis, at no time, told him that the gate was down; that he did not know where or how the cattle broke in.

Dr. Bain, a Doctor of Veterinary Medicine, gave testimony to the effect that he inspected plaintiff’s heifers after their removal from the pasture and found that ten were bred during the period that defendants’ bull was in the pasture. He testified to the effect that Holstein heifers should not be bred when the size of and weight that these were.

Mr. Cooper testified to the effect that, in late April of 1963, he purchased ninety-eight yearling steers, averaging about five hundred twenty pounds, and trucked them directly from the stock yards to the Curtis farm; that he was informed, by the seller, that the calves were all clamped, that is, rendered sexually impotent; that it is difficult to determine if a calf has been clamped without a careful “feel” inspection; that he later learned that one animal had not been clamped.

Mr. Curtis stated that, when the cattle arrived at the farm, he kept them in another area than this eighty acres; that defendants’ fence was checked and was in good condition but that the water gate, in the north half, was down; that he informed plaintiff of that fact; that plaintiff claimed that the north half of the fence was defendants to maintain; that defendants kept their cattle out of this pasture so that plaintiff could fix the fence; that he repeatedly requested plaintiff to repair the gate; that, finally, because of the shortage of grass, he turned the cattle in, about June 1st; that, thereafter, he saw a few head in plaintiff’s pasture from time to time; that he would open a gate and drive them out; that he repeatedly asked plaintiff to fix his fence; that plaintiff stated that he was not required to fence against bulls, bears, or stallions; that, on July 10th, plaintiff telephoned and said that fifteen head of defendants’ cattle were in his pasture, including a bull; that he told defendants to stay off the land, that we were to consider the cattle shut up and that we should get a lawyer; that, as to the bull, he would “clamp the bastard”; that Curtis told plaintiff that he would clamp the bull; that, on the following day, Mr. Cooper, his daughter, and Curtis, inspected the pasture fence and found the water gate flat on the ground; that the wire cable, from which it was suspended, was down; that they took pictures of the situation; and that there were cattle tracks coming and going over the top of the water gate. These pictures were introduced in evidence and they are corroborative of Mr. Curtis’ testimony. They show Mr. Curtis standing on the fallen gate, which was on the ground. Mr. Cooper and his daughter also testified to the same effect. The cattle remained in the pasture until September, when Mr. Curtis opened a gate in the fence and put protein blocks in his pasture. The cattle came through the gate to eat them.

There was testimony to the effect that a bull has a strong propensity to break through a division fence in order to fraternize with heifers in an adjoining enclosure; that, if there is a weak place in the fence, he will seek it out and commit trespass (quare clausum fregit); that steers, not being aware of their lack of sexual potency, will break and enter where there are heifers, from purely prurient motives; that this natural tendency is generally known to those engaged in cattle farming. Indeed, that tendency is commonly known to affect the conduct of all males of every species.

It is now admitted that it was plaintiff's obligation to keep the north end of the fence in a cattle proof condition. He knew that defendants’ cattle were going to be released into their pasture. He was repeatedly told that the water gate was down and needed repairs, long before the cattle were released. Defendants’ testimony was to the effect that plaintiff failed and neglected to make any repairs until after defendants’ cattle were removed from the pasture. Plaintiff testified to the effect that the water gate did not need repairs and he did not claim that he made any, excepting on one occasion, after a heavy rain, at an undisclosed date. On July 10th he ordered defendants to stay off the land. Although they told him that they would clamp the bull, he would not permit defendants to remove the cattle. In his testimony he stated that he did not know how or where the cattle came through the fence.

In view of the fact that determination of the issues presented at this trial rests upon the weight to be given to the oral testimony, and upon the credibility of witnesses whose testimony, in many instances, was conflicting, we should defer to the findings and judgment of the trial court. It was plaintiff’s obligation to prove his case by a preponderance of the credible evidence. The court found that he failed to do so.

This court cannot hold the judgment to be clearly erroneous. It is affirmed.

MAUGHMER, C„ concurs.

PER CURIAM:

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

HOWARD and BLAIR, JJ., concur.

CROSS, P. J., not participating.


author: CLEMENS, Commissioner.

text:
    Leonard A. LINDSEY, Plaintiff-Respondent, v. P. J. HAMILL TRANSFER COMPANY, Defendant-Appellant.
    No. 32248.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.

      Leritz & Leritz, J. D. Leritz, Joseph L. Leritz, St. Louis, for appellant.
    Mogab & Hughes, Charles A. Mogab, Richard L. Hughes, St. Louis, for respondent.
   CLEMENS, Commissioner.

The defendant has appealed from an $8,000 judgment awarded plaintiff for injuries sustained when defendant’s truck backed into a bus in which plaintiff was a passenger. The bus was halted for heavy traffic near an intersection; the defendant’s truck had been standing in a service station but then was driven backward into the street, striking the bus and puncturing its side near plaintiff’s seat.

With commendable candor the defendant concedes negligence and causation. It contends, however, that trial errors led to an excessive verdict. Defendant has kept alive four points for review: that a prospective juror intentionally concealed prior injuries; that plaintiff’s closing argument was a personal attack on defendant’s counsel; that plaintiff’s treating doctor was erroneously allowed to state the percentage of plaintiff’s disability; and that the verdict was excessive. (These points were skillfully presented. The tightly written briefs of both counsel demonstrated their proficiency in appellate practice and were most helpful to the court.) These four points in order.

Defendant contends the trial court erred in denying a new trial on the ground that a prospective juror intentionally concealed information of two previous injuries. On voir dire, defendant’s counsel asked a general question of the jury panel concerning previous injuries sustained by them and members of their families. One venireman told of a broken wrist. Several volunteered information about injuries to members of their families. Venireman Parker then volunteered detailed information about settling a claim for injuries suffered by his son when hit by an automobile. However, at a post-trial hearing, Parker acknowledged that he, too, had been injured. He had made a claim for workmen’s compensation and had settled another claim for injuries in an automobile accident.

The ultimate issue here is whether the trial court erred in not finding as a fact that Mr. Parker’s previous injuries had been intentionally concealed. Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670 [8, 9]. In determining this issue of fact, the veteran trial judge had before him the defendant’s voir dire question, Mr. Parker’s answer thereto and his subsequent explanation. The question:

“Q. Have any of you jury members, or have any of the members of your family had any injuries — I mean your immediate family, had any injuries that required any medical care or treatment?”

The clause “I mean your immediate family” could be misunderstood to mean that counsel was changing his question to limit it to injuries to the veniremen’s families. Four veniremen told of injuries suffered by their wives and daughters. Then Mr. Parker volunteered the information about his son’s injuries. His testimony at the post-trial hearing showed either that he understood the voir dire question called for information only about his family’s injuries or, at worst, that he was confused by the question. We cannot say categorically that the trial court erred in not finding that Mr. Parker’s own injuries were intentionally concealed. So, we may not reverse on this ground. Mantz v. Southwest Freight Lines, Mo., 377 S.W.2d 414 [2-4],

Defendant next contends that the trial court erred in overruling its objections to a part of plaintiff’s closing argument. We quote:

“MR. MOGAB: * * * You are going to decide this case on the law and on the evidence that was placed before you and not what I say or what Mr. Leritz says. It is not evidence in this case. We are lawyers, all we do is tell you what we think are — what our impressions are, but if Mr. Leritz, whose job it is in this case to throw up a smoke screen [our emphasis]—
“MR. LERITZ: Your Honor, I am going to object. I don’t think that a proper argument.
“THE COURT: Well, overruled. The Jury will be guided solely by the evidence and the Instructions of the Court.”

Defendant brands the emphasized part of the argument as an unjustified personal attack on counsel. We agree. Such comments clash with the orderly tone of a properly tried law suit. As said in Tuck v. Springfield Traction Co., 140 Mo.App. 335, 124 S.W. 1079 [5], quoted with approval in Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421 [3]: “One of the first duties of the judge of a trial court is to preserve order and require that the attorneys as well as other persons should, by their behavior, show a decent respect for the court and for the opposing counsel.” In the Tuck and Critcher cases, supra, and in other cases cited by defendant as authority for reversal, the arguments complained of were more vitriolic and prolonged, and the trial courts’ rulings therein aggravated the improper comments.

Defendant argues that the trial court’s ruling “placed its stamp of approval” on the improper comment. The defendant overstates its case. Although the objection should have been sustained, the court did temper its ruling by admonishing the jury to be “guided solely by the evidence and the instructions of the court.” We have considered the defendant’s cited case of Bishop v. Hunt, 24 Mo.App. 373, 1. c. 377-378. We conclude, however, that in our case, as in Kiger v. Terminal Railroad Ass’n. of St. Louis, Mo., 311 S.W.2d 5 [13], the overall effect of the court’s ruling was to soften the sting of counsel’s argument by stressing the importance of the evidence and the instructions.

We do agree with defendant’s basic contention that overruling its objection was erroneous. But the ultimate issue here lies deeper than a mere determination of error. Civil Rule 83.13(b), V.A.M.R., forbids a reversal except for error “materially affecting the merits of the action.” In deciding the effect of improper argument we must consider the trial court’s superior vantage point in determining materiality. We are “inclined to defer to the trial court’s opinion in these matters, unless upon a full examination of the record it appears that the improper argument was so prejudicial, inflammatory and outside the record as to affect the result on the merits.” •Collins v. Cowger, Mo., 283 S.W.2d 554 [9]; Kiger v. Terminal Railroad Ass’n, supra, 311 S.W.2d 1. c. 12.

Considering that the offensive argument was an isolated incident in an otherwise orderly trial, considering the court’s admonition to the jury to be guided by the law and the evidence, and considering that there was no contention as to liability, we are unable to say that reasonable judicial minds cannot differ on the proposition that the error in overruling defendant’s objection did not materially affect the merits of the action. Therefore, we may not reverse on this ground.

The defendant’s third point concerns the stated opinion of plaintiff’s physician that the degree of plaintiff’s permanent disability of his shoulder was thirty-five per cent. Our decisions have reasoned that since it is proper for an expert medical witness to express an opinion that a person is totally disabled, it logically follows that it is proper to express an opinion that a person is partially disabled, and to describe the degree of that partial disability per-centagewise. Erbes v. Union Electric Co., Mo., 353 S.W.2d 659 [5]; Knipp v. Mankin, Mo., 336 S.W.2d 371 [5].

Defendant’s precise point, however, is that the trial court erred in admitting evidence of the percentage of disability over his objection that the opinion would be speculative. Defendant now tardily advances reasons to bolster that conclusion, but no such reasons were stated below. Objections to a question should be so specific that the trial court can realize what rule of evidence is being invoked and why that rule of evidence should exclude a responsive answer. Carroll v. Missouri Power & Light Co., 231 Mo.App. 265, 96 S.W.2d 1074 [1]; Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761 [13], Where the grounds for an objection are not made reasonably apparent to the trial court, its ruling is unreviewable. Gerald v. Caterers, Inc., Mo.App., 382 S.W.2d 740 [1]; Russell v. Union Electric Co., 238 Mo.App. 1074, 191 S.W.2d 278 [10-12]. Defendant’s naked objection that the doctor’s opinion would be speculative afforded no basis for a discerning ruling below, nor for review here.

Defendant’s last point is that the verdict was excessive. The verdict expressed the jury’s finding of fact that $8,000 would fairly and justly compensate the plaintiff for his past and future damages (MAI 4.01). The range of our review is confined to a determination of whether the jury could have reasonably reached that result by believing the evidence favorable to plaintiff and disbelieving contrary evidence. Machens v. Machens, Mo., 263 S.W.2d 724 [16]; Glowczwski v. Foster, Mo.App., 359 S.W.2d 406 [14, 15]. In that light we shall relate the evidence as to damages, as told by plaintiff and his treating physician.

Plaintiff was a 40-year-old laborer who worked at unloading heavy timbers. Before the accident he had no difficulty with his shoulders, neck or hack. At the time of the accident he was thrown from his seat in the bus, his back struck the seat in front of him, and he was hurled to the floor. After the accident he suffered pains in his left shoulder, neck and lower back. On his initial visit to Dr. Walters, the doctor found that he had a muscle spasm in his back and that he could raise his left arm no higher than a horizontal level. He diagnosed plaintiff’s condition as an injury to the muscles of the left shoulder, neck and back, and an aggravation of a pre-existing bursitis of the shoulder. The doctor prescribed pain medication, muscle relaxants, heat treatments and a hack brace. Over the next eleven months Dr. Walters saw plaintiff fourteen times. He suggested continued use of the back brace, and from time to time prescribed pain medicine and administered diathermy, cortisone injections and cervical traction. Plaintiff could not work for six weeks after the injury. When he returned to work he was given a lighter job as a sawyer, but even this work caused pain in his left shoulder. The plaintiff continued to suffer pain until the time of the trial, eleven months after his injury. His medical expenses were $249. He lost $687 in wages. At the trial Dr. Walters confirmed his original diagnosis and said that plaintiff should continue medication and use of the back brace. He believed that the plaintiff’s shoulder and back were permanently disabled to the extent of thirty-five per cent and ten per cent, respectively.

On this question of excessiveness we are bound by the principle that a verdict may not be disturbed unless the amount is so grossly excessive that it shocks the conscience of the court. Rinderknecht v. Thompson, 359 Mo. 21, 220 S.W.2d 69 [14]; Brandt v. Thompson, Mo., 252 S. W.2d 339 [7]. “So also must we have due regard for the attitude of the trial judge, whose conception of what was right, induced by what he had personally observed, prompted him to let the verdict stand.” Smith v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 102 [6, 7]; and see Marquardt v. Kansas City Southern Railway Co., Mo., 358 S.W.2d 49 [16]. We have considered the physical and material elements of pain, limitation of motion, permanency of injuries, medical expenses and wages lost. We have borne in mind the legal factors of uniformity of verdicts in similar cases and the current purchasing power of the dollar. We have compared this case with the five cited by the defendant: Salzwedel v. Vassil, Mo.App., 351 S.W.2d 829; Hiken v. Wilson’s Shoes, Inc., Mo.App., 317 S.W.2d 673; Roberts v. Carter, Mo.App., 234 S. W.2d 324; Statler v. St. Louis Public Service Co., Mo.App., 300 S.W.2d 831; and Kulengowski v. Withington, Mo.App., 222 S.W.2d 579. It would be futile to discuss each of those cases in detail, because every case must be decided upon its own facts. Suffice it to say that in each of them there' are elements substantially dissimilar from those before us.

Considering the compensable elements of plaintiff’s claim, and the stated limitations on our power to interfere, we cannot say as a matter of law that the evidence does not support the verdict. This conclusion finds confirmation in the following cases where similar compensable elements supported similar verdicts: Wren v. St. Louis Public Service Co., Mo.App., 355 S.W.2d 365; See v. Kelly, Mo.App., 363 S.W.2d 213; and Glowczwski v. Foster, supra.

Finding no material error in the points raised, the judgment is affirmed.

PER CURIAM.

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

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