author: STEWART, Judge.

text:
    Hart B. DONNELL and Edna L. Donnell, his wife, Plaintiffs-Respondents, v. VIGUS QUARRIES, INC., a corp., Defendant-Appellant.
    No. 35460.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 17, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      Paul E. Fitzsimmons, Fitzsimmons & Fitzsimmons, Attys., Inc., Clayton, for defendant-appellant.
    Gregory D. O’Shea, St. Louis, for plaintiffs-respondents.
   STEWART, Judge.

Defendant appeals from an adverse jury verdict and judgment finding defendant liable for damage to plaintiffs’ property in the sum of $27,000.00 as a result of blasting operations in its quarry operations.

Plaintiffs purchased a thirty acre tract of land in Jefferson County for $10,000.00 in 1965. There was an old frame house on the property. The property adjoined the Yigus Quarry. The purchase agreement provided that the seller, Mrs. C. E. Crosby, could live in the frame house, rent free, for the remainder of her life. In 1970 plaintiffs sold off 10 acres for $10,000.00.

In 1966 plaintiffs commenced building. The first structure started was the barn. At that time there was no blasting at the quarry. In 1967 Mr. Donnell noticed some blasting at the quarry. He was concerned over the effect the blasting might have on a home he was planning so he contacted John Weber, an executive of defendant. Mr. Weber assured him that there would be no blast damage to structures on his property which were about a quarter of a mile from the quarry.

Plaintiffs continued with their building program. The home was completed in 1969 and they moved onto the property in that year. In addition to the house and barn they built a workshop and screened pavilion.

In late 1969 or 1970 after experiencing vibrations from blasting, Mr. Donnell observed that his front and rear porches had cracked. Alerted to the cracks in the porches he made a close inspection of the home and the other structures on the property. He found additional cracks in the house, barn, pavilion, and workshop. Most of the cracks were in the foundation area, although others could be found in the fireplaces, the ceilings, basement, and floors of the new buildings. He also noticed cracks in the foundation of the old frame house. He had inspected this house before the blasting operations began. He did not recall seeing any cracks at that time. Mr. Donnell could feel the vibration from the blasts and, at times, the lights would shake. On one occasion when Mr. Donnell was home a blast went off and immediately afterward he noticed a fresh crack in the dining room ceiling.

Because of the nature of the issues raised further facts necessary to their resolution will be set forth where appropriate.

Preliminarily we note that blasting is a work which may be lawfully pursued. However, when one intentionally detonates explosives he is absolutely liable for injuries and damages which are the proximate result of such explosions. Summers v. Tavern Rock Sand Company, 315 S.W.2d 201 (Mo.1958).

Defendant first contends that a new trial should have been granted because plaintiffs failed to prove by any substantial evidence that defendant’s blasting operations caused any damage to plaintiffs’ property.

In making our determination we must view the evidence in the light most favorable to the plaintiffs. We must also bear in mind the fact that in eases such as this vibrations and concussions can not be seen and the case must, to a large extent, be based on circumstantial evidence. Poston v. Clarkson Construction Company, 401 S.W.2d 522 (Mo.App.1966).

During the period following plaintiffs’ construction project (1970-1972) defendant, in the course of its operations, set off 441 blasts in delayed blasting. The largest charge employed was 1612 pounds of explosives, the smallest 300 pounds.

Plaintiff, Hart Donnell, actually felt the vibrations from the blasts at his home. It shook the lights. On one occasion he saw a fresh crack in the ceiling immediately after the blast. Two persons who lived in the immediate vicinity of plaintiffs testified that they heard the blasts, felt the vibrations, and that their homes suffered damages as a result of the blast. Evidence of this nature, concerning other structures similarly situated, has been held to be relevant and substantial. Poston v. Clarkson Construction Company, supra.

Joseph Brooks, a consulting engineer, testified for plaintiffs. He had a masters degree in civil engineering and had specialized in structural engineering. He testified that the Donnell home was above average in construction. The other buildings on the property were of typical construction. The home is on a rise and the home and other structures were built on hard clay with no fill. Thus drainage settlements and differential settlement were ruled out as causes of the cracking and damages to plaintiffs’ structures. The witness inspected the property in April 1972 and again in February 1973. In answer to a hypothetical question he testified that the damage to the plaintiffs’ property was caused by defendant’s blasting operations.

It is apparent that there was sufficient substantial evidence to warrant a. finding that the damage to plaintiffs’ property was proximately caused by defendant’s blasting operations.

Defendant next contends that the verdict of the jury in assessing damages at $27,-000.00 was so excessive as to demonstrate bias and prejudice on the part of the jury

The measure of damage to property in cases of explosion is the difference in market value of the property before and after the blasting operation or the cost of restoring the property whichever is the lesser amount. Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158 (1952). The evidence on behalf of plaintiff as to restoration was to the effect that the structures could not be effectively restored. The plaintiffs gave damage instruction MAI 4.02. The question of the propriety of the instruction was not raised.

The evidence with respect to damages came from Loyce Campbell, a local real estate broker, and from plaintiff, Hart Donnell. Mr. Donnell testified, without objection, that, in his opinion, the fair market value of his property prior to blast damage was $90,000.00, that as a result of the blasting the property had decreased in value by $35,000.00. Mr. Campbell testified that he was familiar with local property values, and, in his opinion, the fair market value of plaintiffs’ property prior to blasting was $90,000.00, that by reason of the blast damage the fair market value of the property had been decreased by $30,000.00. The testimony would thus have supported a judgment of $30,000.00. The judgment of $27,-000.00 was well within the range of damages which the testimony would support. Under these circumstances the verdict will not be disturbed. Union Electric Company of Missouri v. Simpson, 371 S.W.2d 673, 683 (Mo.App.1963).

Defendant also contends that the verdict was “excessive and prejudicial” because the plaintiffs’ counsel tried to arouse the emotions of the jury against defendant. Having found that verdict was not excessive this contention is without merit. We note in passing that defendant made no objection to any of the seven incidents in argument of which it now complains. These matters were not preserved for our appellate review. Kallenbach v. Varner, 502 S.W.2d 446 (Mo.App.1973).

The verdict directing instruction was MAI 31.03:

“Your verdict must be for plaintiffs if you believe: First, defendant intentionally exploded dynamite and ammonium nitrates, and Second, as a direct result of such explosions plaintiffs were damaged.”

Defendant contends that this instruction is erroneous because it uses the word “intentionally”.

Notes on Use under this instruction reads, “1. Omit the word ‘intentionally’ if this matter is not in issue.” As we read this note it is merely an admonition as to the law as it existed in this State. “The Supreme Court has repeatedly said that those facts not in dispute need not be hypothesized” MAI page XLIX. That defendant intentionally set off explosives was an element of plaintiffs’ cause of action. It was, however, not in dispute. It was developed in the evidence of plaintiffs and defendant. It is not error for a party to take on the additional burden of requiring the jury to make a finding of an element of the party’s claim which has been conceded and thus is not in issue. Terry v. Sweeney, 420 S.W.2d 368 (Mo.App.1967).

The judgment of the trial court is affirmed.

SMITH, C. J., and KELLY, J., concur.

      . “The owner of property is qualified to give his opinion as to the value of his own property even though he is not a real estate expert.” Esmar v. Zurich Insurance Company, 485 S.W.2d 417 (Mo.1972).


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Rose Many POWELL, a minor, by her next friend, William Powell, and William Powell, Plaintiffs-Appellants, v. Clarence Harold WATSON, Administrator of the Estate of Dennis Ray Watson, Deceased, Defendant-Respondent.
    No. 9718.
    Missouri Court of Appeals, Springfield District.
    July 1, 1975.
    Rehearing Denied July 28, 1975.

      L. Thomas Elliston, Webb City, Myers, Webster & Perry, Webb City, for plaintiffs-appellants.
    Malcolm L. Robertson, Ronald E. Mitchell, Joplin, for defendant-respondent; Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, of counsel.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Damage suit plaintiffs (successful with the jury) appeal from the court nisi’s order granting defendant a new trial. § 512.020 RSMo 1969, V.A.M.S. The court’s reason for the order was that “there was not sufficient evidence to justify a submission . on excessive speed and failure to keep a lookout,” the only charged negligent acts submitted by plaintiffs. Defendant is administrator of the estate of Dennis Ray Watson who expired as a result of the subject casualty. Plaintiff Rose Mary Powell was said to be the sole passenger in the station wagon allegedly driven by decedent; her father, plaintiff William Powell, sought to recover medical expenses incurred on behalf of his minor daughter. The “dead man’s statute” (§ 491.010 RSMo 1969) muted plaintiffs as testifying witnesses to the facts of the accident.

The casualty occurred west of Joplin on Christmas Eve 1971 near 7:20 p. m. at the intersection of east-west U. S. Highway 66 and north-south Black Cat Road. Both thoroughfares provide two traffic lanes paved with asphalt. The traveled portion of Black Cat Road is 25 feet wide; that of U. S. 66, described as a “through highway”, is 24 feet wide. Asphaltic paved berms, 8 feet in width, adjoin the north and south sides of U. S. 66. Traffic at the intersection is controlled by stationary stop signs located north and south of U. S. 66, intended for observance by traffic traveling on Black Cat Road. The south stop sign is situate 30 feet south of the south edge of the traveled portion of U. S. 66. Both roads are straight and level at the intersection which, in daylight, can be seen from the east and west on U. S. 66 for a distance of to ¾ mile. The accident happened on a moonless, starless night on dry pavement. No artificial lighting illuminated the intersection, described as “dark” save for lights of traveling vehicles. The lawful speed limits at the time were 65 m. p. h. on U. S. 66 and 60 m. p. h. on Black Cat Road. § 304.010, subd. 2(3), (4) RSMo 1969. At the north and south sides of the intersection the pavement on Black Cat Road is fan-shaped, thereby making the pavement on that roadway somewhat wider than its normal width of 25 feet as it abuts onto U. S. 66.

Generally, the consensus was that the station wagon, occupied by decedent and plaintiff Rose Mary Powell, was westbound on U. S. 66 when an unidentified' pickup-camper type of vehicle was approaching the intersection from the south on Black Cat Road. The camper stopped at the south edge of U. S. 66 to permit an eastbound automobile occupied by the Phillips family safe passage through the intersection. Immediately after the Phillips vehicle cleared the intersection, the camper “whipped out” or “came out fast” into the intersection ahead of the station wagon, turned left or west partly upon the north shoulder and north traffic lane of U. S. 66 blocking both. In an apparent effort to avoid colliding with the camper, the brakes of the station wagon were applied, recording tire marks which commenced on the traveled portion of U. S. 66 east of the intersection, continued westward onto the north shoulder of U. S. 66, across the north “throat” of the intersection, and ended where the station wagon left the pavement before plummeting into “a rather deep ditch” at the northwest corner of the intersection. The station wagon came to rest on its top headed east. The camper continued westward on U. S. 66 and neither it nor its driver was ever found.

Before recasting the evidence particulars: as observed in Powell v. Watson, supra, 516 S.W.2d at 52, n. 1, although the trial court granted defendant’s after-trial motion for a new trial, defendant is entitled now (as he has done) to raise the more basic issue that the court should have sustained his alternative motion for judgment in accordance with his motion for a directed verdict. We shall consider this first, for if the plaintiffs did not make a submissible case, the issue of the correctness vel non of the trial court’s grant of a new trial is immaterial. In measuring the submissibility of plaintiffs’ case we review the evidence on the two alternative or disjunctive submissions of lookout and excessive speed upon which plaintiffs grounded their recovery [Begley v. Connor, 361 S.W.2d 836, 839[4] (Mo.1962)], and consider the evidence in the light most favorable to plaintiffs, disregarding -opposing evidence except where it aids plaintiffs’ position. Kinder v. Pursley, 488 S.W.2d 937, 939, 940[2, 3] (Mo.App.1972).

Billy Gene Phillips, accompanied by his wife (Evelyn) and children, was driving “roughly” 50 m. p. h. east on U. S. 66. He said the length of a car is 17 or 18 feet. One block west of the intersection Phillips observed the pickup-camper a block south traveling north on Black Cat Road at an unknown speed but at such a rate as to make him apprehensive it might not stop before entering the intersection. As the speed of the Phillips car was slowed, so too was the speed of the camper before it came to a stop near the south edge of U. S. 66. Seeing that the camper was stopping, Phillips increased his speed to 35 or 45 m. p. h. and proceeded to and through the intersection while the camper waited. “Q. . ., did you ever observe that pickup again? A. Just in my rearview mirror. Q. How far had you traveled past the intersection when you next observed the pickup? A. Just as I got by. Q. Can you tell me in car lengths how far past you were? A. Maybe one or two, somewhere along there. Q. All right, at the time you glanced up in your rearview mirror and saw the pickup, did you observe anything else? A. I seen the pickup swerve over on the highway, over on the shoulder, and the taillights of a car. . Q. What were they doing at the time? A. They were going up. . I could conclude that he was hitting the ditch. Q. . how far west of the middle of the intersection of Black Cat and [U.S. 66] was the camper . . . when you saw the taillights of the car go up in the air? A. . I’d say around two, two to three car lengths. . . . Q. You saw the taillights go across [the intersection]? A. Just before they hit the ditch. . Q. And at that time the back end of the car and the pickup would have been about 2 or 3 car lengths from each other? A. I’d say somewhere along there. . . . Q. —during all that time the pickup was proceeding west? A. Well, he either stopped after he got on the shoulder or slowed down real slow. . Q. And half the pickup was on the shoulder? A. Yes, sir. Q. And half of it was still in the westbound lane? A. Yes, sir. . Q. Well, if the automobile had been continuing in the westbound lane, straight through the intersection west, would it not have been on a collision course with the camper? A. Yes, sir, to my knowledge, I mean the way it looked to me it would have been. . Q. Do you recall the automobile that ended up in the ditch, actually going by you? A. No, sir.”

Evelyn Phillips, passenger in the automobile being driven east on U. S. 66 by her husband, estimated the car’s speed at 50-60 m. p. h. as they were nearing the intersection. It was dark; the traffic was “medium.” • She saw the pickup-camper traveling north on Black Cat Road when it was one-half to one block south of the intersection. The camper’s speed was unknown- to Mrs. Phillips except “it didn’t act like it was going to stop.” Her husband slowed the car’s speed to 30 — 40 m. p. h. and “when he seen [the camper] was going to stop” and stop, “then he increased his speed up to 45, 50 miles per hour.” After the camper had stopped, “you had to drive 50 or 60 feet before you got up to the intersection . . ? A. Yes. Q. And [the camper] waited all that while? A. Yes. . Q. Then he went safely through? A. Yes, he did. Q. Now, after you passed through the intersection, you noticed the headlight of a westbound car . . . ? A. Yes. Q. And that car went past you? A. Yes, it did. Q. And immediately after it passed you, your husband said some drunk pulled out in front of that car, didn’t he? A. He said something like that. . Q. And you saw the headlights of the westbound car just before your husband made that statement? A. Yes, sir. Q. And at the time your husband made that statement your car was perhaps four car lengths east of the intersection? A. Yes. Q. And you had observed the headlights of that car coming toward you, perhaps it was also four or five car lengths from the intersection? A. Yes. . Q. Now, when your husband made that statement, you turned around . . . and you looked? A. Yes. Q. But the accident had already happened, had it not? A. Yes. Q. The car had come to a rest? A. Yes. Q. And was already up in the ditch? A. Yes. Q. And then it was after you saw the car stopped up in the ditch that you noticed this pickup camper? A. Yes.” The camper, according to Mrs. Phillips, was then “along the shoulder of the road, headed west [and] if he was moving, he was moving slow . part of it blocking the shoulder and part of it blocking the west[bound] lane.” Whether any traffic was following the Phillips vehicle, Mrs. Phillips did not know.

Patricia Ann Neeley was a passenger in a Ford being driven east on U. S. 66 by her husband. The Ford was following “probably” 3 or 4 car lengths behind another unidentified eastbound vehicle. Both vehicles were going at the same rate of speed but Mrs. Neeley did not state what that speed was. When the Ford was “a block or so” west of the intersection, she espied a camper headed north on Black Cat Road “about a block or something in that area” south of the intersection. The camper was moving at “what I considered a rather fast rate of speed ... I thought he was driving too fast to stop” at the stop sign, and Mrs. Neeley so commented to her husband. However, the husband did not slow the speed of the Ford as “I recall.” Mrs. Nee-ley did not continue to observe the camper’s progress and did not know whether or not it stopped at the stop sign. When the Ford was still about a half block west of the intersection, Mrs. Neeley saw “the taillights of a car going over in the northwest corner of the intersection.” The Ford was stopped on the south shoulder of U. S. 66 near the intersection, and as Mr. and Mrs. Neeley were getting out of the cars, she saw the camper for the second time about one half block from the intersection traveling west in the westbound traffic lane. Having not seen the automobile until it “was already turning over” in the ditch, this witness did not know where it was when the camper entered the intersection.

Merle Graham investigated the accident on behalf of the Missouri State Highway Patrol. He testified as to the location of the stop signs, and related his measurements of the widths of the roadways and the shoulders on U. S. 66. We have recounted that data, supra, and will not repeat. Upon his arrival at the scene, Trooper Graham found the station wagon “on its top in the northwest ditch . . . laying slightly on its left side on the roof” headed “almost directly back east.” It was approximately 64 feet west of the west edge of Black Cat Road and approximately 27 feet north of the north edge of U. S. 66. The trooper discovered skidmarks; the right tires on the station wagon started skidding 173 feet east of the west edge of Black Cat Road or 148 feet east of the east edge of Black Cat Road. From the start of the skidmarks, which was in the north traffic lane of U. S. 66, they continued on the pavement a distance of about 88 feet, then went onto the north paved shoulder of U. S. 66 for a distance of 60 feet, and thence westward 25 feet across Black Cat Road. As agreed by the trooper, “the [right] skid-mark first went to the shoulder at a point just east of where the blacktop approaching the intersection [from the north] widens out onto the shoulder [at] [w]hat you might call the throat of the intersection.” A left skid-mark was also made by the station wagon; it was approximately half as long as the right skidmark or “80 some feet” long. Trooper Graham further testified to the following: A car traveling 60 m. p. h. on dry, level concrete “takes close to 300 feet to stop [including] reaction time and stopping distance [and] could leave skid-marks in excess of 200 feet”; a car traveling 60 m. p. h. goes 88 feet a second; at 65 m. p. h. a car travels 95 feet per second; at 55 m. p. h. it would travel 80.7 feet per second. The ditch at the northwest corner of the intersection, previously described as “a rather deep ditch,” was “actually a culvert going underneath the road [and] that ditch runs parallel with Black Cat and then it also turns and goes up west parallel with 66.” Trooper Graham said he was not qualified “to tell how fast a car was traveling from skidmarks.”

No evidence was adduced concerning the speed or estimated speed of the westbound station wagon at any time or at any place. Likewise, no one located the position of the station wagon on U. S. 66 while the camper was approaching, slowing, stopping or remained standing at the south edge of the intersection. Although the intersection was visible for ½ to mile east and west thereof in daylight, what the visibility may have been in the dark with only headlight aid was never shown. Witnesses who observed the camper approaching from the south, saw it do so from west of the intersection; whether its full approach from a block south of the intersection could have been seen by the operator of the station wagon at its then unknown location east of the intersection, is left to conjecture. Mr. and Mrs. Phillips additionally testified that when their car was about ½ block west of the intersection and slowing, the camper too was slowing, and that it had slowed considerably upon nearing the stop sign before it came to a complete stop at the south edge of U. S. 66. Upon realization that the camper was stopping, the speed of the Phillips car was increased to 35 or 50 m. p. h. (51.4 or 73.35 feet per second) and driven 2 to 4 car lengths (34 to 72 feet or .475 to 1.36 seconds) to the intersection and 25 feet (.34 to .486 seconds) across Black Cat Road before clearing the intersection. Therefore, whatever threat of danger may have been gleaned from the camper’s apparent fast approach to the intersection one block south of U. S. 66, diminished as it neared the intersection, vanished when it was stopping and stopped, and remained in repose for .815 to 1.846 seconds while the Phillips car came onto and cleared the intersection. The location and speed of the station wagon during this period is not known.

LOOKOUT

If, as all have done, it be assumed the sighted headlights and taillights and the skidmarks found by the trooper all belonged to the station wagon, the fallibility and frailty of plaintiffs’ reliance upon the testimony of Mr. and Mrs. Phillips (the only witnesses purporting to see both the camper and station wagon prior to the casualty) becomes evident when exposed to the skid-mark measurements, known facts regarding rates of speed, and the assumption by courts (sans contrary evidence) that human reaction consumes the relatively rapid time of ¾ second. Shelton v. Bruner, 449 S.W.2d 673, 677, note 4 (Mo.App.1969). Mr. Phillips recounted that when his car was 1 or 2 car lengths (17 to 36 feet) east of the intersection traveling 35 to 45 m. p. h. (which, at the most, would be “Aoo second past the intersection) he saw the camper “whip out,” “gun out” or come “out fast” into the intersection and immediately thereafter, in the same or second glance in his rearview mirror, also saw taillights at the west edge of the intersection “Q]ust before they hit the ditch.” Acceptance of this would indicate that the camper entered the intersection in less time than its driver’s reaction time would allow after the Phillips car cleared the intersection, and that the station wagon had arrived at the intersection coincidentally (or nearly so) with the camper’s entry therein and before the driver of the station wagon could react to cope with the camper’s sudden presence in the intersection. Mrs. Phillips placed the speed of the Phillips car at 45 to 50 m. p. h. (66 to 73.35 feet per second) when she saw westbound headlights which met and passed the Phillips car before it was 4 car lengths (68 to 72 feet or less than 1.06 seconds) east of the intersection and just before her husband announced his observation that the camper had pulled “out in front of that car.” This testimony would also put the station wagon very near to or at the intersection as the camper gunned out and then stopped or was moving “real slow” to block the safe passage of the station wagon either on the highway or north shoulder. However, the tire marks attributed to the station wagon attest that the driver of that vehicle saw and appreciated some danger ¾ second before the tire marks commenced 148 feet east of the intersection and before the conglomerate testimony of Mr. and Mrs. Phillips moved the camper from its stopped position south of U. S. 66 into the intersection and the path of the station wagon.

Albeit a stop sign does not relieve a motorist on a through highway of the duty to maintain a careful lookout ahead and laterally, nor permit him, irrespective of the circumstances, to drive blindly into the intersection, nevertheless such a motorist, absent circumstances that would put a reasonable person in the exercise of the highest degree of care on notice that it was not safe to .do so, has the right to assume the driver of a nonemergency vehicle will obey the stop sign intended for his observance, will stop before entering the through highway [Wolfe v. Harms, 413 S.W.2d 204, 210[3] (Mo.1967); Pitts v. Garner, 321 S.W.2d 509, 518[11] (Mo.1959)], and once having stopped will yield the right-of-way to vehicles which are approaching so close on the through highway “as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.” § 304.351, subd. 4(1)(a) RSMo 1969.

For plaintiffs to make a submissi-ble case based on failure to keep a careful lookout, it was not necessary for them to produce direct evidence that decedent was not looking. Dorrell v. Moore, 504 S.W.2d 174, 178[4] (Mo.App.1973). However, before their case could become submissible, it was required that plaintiffs satisfy the burden of proving all facts and circumstances essential to submission of the negligence charged [ Williams v. Boone, 413 S.W.2d 36, 40[2] (Mo.App.1967)] by producing substantial evidence from which the jury could have reasonably found that decedent, in the exercise of the highest degree of care, could have seen the danger sooner than he did [Levin v. Caldwell, 285 S.W.2d 655, 659[3] (Mo.1956)] and in time thereafter to have taken effective precautionary action. Shelton v. Bruner, supra, 449 S.W.2d at 679. Possession of the ability and means to avoid a danger of collision means more than mechanical appliances, such as brakes, with which to slow or stop; it also includes the existence of sufficient time and distance to take effective action in avoidance. Stegall v. Wilson, 416 S.W.2d 658, 662[3] (Mo.App.1967).

Until there was substantial evidence establishing negligence, it is presumed that decedent was using due care while driving westward on U. S. 66 [Lindsay v. Wille, 348 S.W.2d 1, 4[3] (Mo.1961)], and that he was, inter alia, maintaining a careful lookout ahead and laterally. Michaud v. Burlingame, 490 S.W.2d 680, 684 (Mo.App.1973). If it be assumed that decedent in the exercise of the highest degree of care could and should have seen the camper one block or more south of the intersection, without knowing the speed or location of the station wagon at that time, no one, short of guessing, could say that the camper’s then rapid approach, even if it appeared the camper might not stop in observance of the stop sign, presented any danger to the station wagon requiring precautionary action by decedent. Of course, when the speed of the camper was materially reduced as it neared the intersection and when the camper was stopped at the south edge of U. S. 66, this would have put an end to whatever danger, if any, the camper’s prior approach may have presented. Thereafter, decedent’s duty to take effective precautionary action would not arise until, in the exercise of due care, he could and should have seen and realized that it was likely to proceed into his path from its stopped position. McAlister v. Urhahn, 492 S.W.2d 19, 21[4] (Mo.App.1973). To tolerate another assumption and suppose decedent, from wherever the station wagon may have been at that time, could and should have seen the camper halted at the south edge of U. S. 66, the record suggests no evidence of any movement by the camper or conduct of its driver which would work to destroy decedent’s right to assume that the camper’s operator would not continue to yield the right-of-way to all vehicles approaching so close on U. S. 66 as would constitute an immediate hazard. After the camper came to a halt south of the intersection, the only evidence of movement on its part which would impose a duty on decedent to undertake effective precautionary action occurred when he could and should have seen the camper “whip out,” “gun out”, or come “out fast” onto U. S. 66. At that time the speed of the station wagon is unknown; at that time its location relative to the intersection is also unknown unless it can be calculated from the recastings of Mr. and Mrs. Phillips or from the skidmarks measured by the trooper. The Phillips’ testimony put the camper into the intersection and in the path of the station wagon less than or no more than a second before the station wagon arrived at or in the intersection. Considering the time necessary for decedent to react to the danger of collision, the testimony of Mr. and Mrs. Phillips would raise in decedent the duty to take evasive action only when the near collision was already occurring. Wardenburg v. White, 518 S.W.2d 152, 154 — 155[4] (Mo.App.1974). On the other hand, the skidmarks indicated decedent had undertaken precautionary action at least ¾ second before the station wagon was 148 feet east of the intersection or before the camper drove onto U. S. 66 according to Mr. and Mrs. Phillips. Thus, where the station wagon was actually positioned when the camper’s movement produced a situation of danger, can be reckoned only through speculation and conjecture. We find no substantial evidence to justify an inference that decedent failed to keep a lookout or that he could and should have seen and appreciated the danger of collision sooner than he did. The evidence, in fact, is to the contrary. Had decedent failed to keep a lookout, the station wagon probably would have collided with the camper; had he turned to the left or south, he probably would have hit the Phillips car or been confronted with eastbound traffic at and approaching the intersection. The record justifies the inference that decedent fully realized his precarious position and undertook the only way of possible escape. McDowell v. Mohn, 426 S.W.2d 95 (Mo.1968). In short, we are of the opinion that there was no substantial evidence to support a finding that decedent, in the exercise of the highest degree of care, could or should have seen a situation of peril at the intersection sooner than he did.

SPEED

Excessive speed depends upon the circumstances existing at the time and place of the incident (Dorrell v. Moore, supra, 504 S.W.2d at 179[9]), and driving at a speed which endangers persons and property under then existing conditions may constitute negligence even though that rate of speed is within the limits of a statute. Rakestraw v. Norris, 478 S.W.2d 409, 415[9] (Mo.App.1972). It is not required that excessive speed be shown by direct testimony; it may be proved by circumstances. Russell v. Kotsch, 336 S.W.2d 405, 409 (Mo.1960). Nonetheless, negligence must be proved; it cannot be assumed or shown by piling one inference on another. Joplin v. Franz, 240 S.W.2d 209, 210 — 211[2, 3] (Mo.App.1951). Excessive speed is not the proximate cause unless it prevents the driver from avoiding the accident, or, stated otherwise, it must be shown that the accident would not have occurred except for the excessive speed shown by the evidence. Marshall v. Bobbitt, 482 S.W.2d 439, 442[1] (Mo.1972); Miller v. Fink, 387 S.W.2d 173, 176[2] (Mo.App. 1965). Causal connection must be proved by the evidence as a fact and not be left to mere speculation and conjecture. However, this does not require direct proof of the fact itself; it is sufficient if the facts proved are of such a nature and are so connected and related one to another, that the conclusion therefrom may be fairly inferred. Watt v. St. Louis Public Service Company, 354 S.W.2d 889, 891[2] (Mo.1962).

Plaintiffs cede there was no testimony by a witness as to the speed of the station wagon at any given time. Nevertheless, they argue “the evidence of skid marks, impact, force of impact, the flipping over of the vehicle, the distance traveled by the vehicle in the space of time that a witness [Mrs. Phillips] could turn her head from front to rear, that [decedent] was thoroughly familiar with the area and the intersection, that the pickup-camper approached the intersection at a high rate of speed traveling past the stop sign and stopping at or within three feet of the traveled portion of the highway, that the pickup-camper appeared as if it was not going to stop, and other relevant factors and evidence was sufficient evidence to justify a submission to the jury on the issue of excessive speed.” We disagree.

A submissible case cannot be made against a driver of an automobile by proof that it merely skidded into a collision on the highway. Friederich v. Chamberlain, 458 S.W.2d 360, 366[4] (Mo. banc 1970). No one undertook to estimate from the skidmarks, or from any other evidence in this case, the speed at which the station wagon may have been traveling at any time. Such an undertaking would have been highly speculative here because the station wagon did not end its skid by reason of its own braking power; it ended it by dropping into “a rather deep ditch” and upsetting in some unknown manner either before or after colliding with an embankment at some unstated distance from the intersection. It is worthy of note that the only evidence of stopping distance at any speed came from the testimony of Trooper Graham. He said a car traveling 60 m. p. h. (well within the statutory speed limit then in force for traffic on U. S. 66) would require, including reaction time, “close to 300 feet to stop [and] could leave skid marks in excess of 200 feet.” We have evidence that the right tires on the station wagon started skidding 173 feet east of the west edge of Black Cat Road or 148 feet east of the east edge of that roadway and that a left skidmark was also made approximately half as long as the right mark or “80 some feet.” What inference can be drawn from that? Did decedent apply the brakes on the station wagon because he was-driving too fast? Or was it because, driving at a normal speed which was not excessive under the circumstances, he saw the camper approaching the intersection and was merely trying to reduce his speed? Or, driving at a normal and safe speed, did he apply the brakes because he saw the camper “gun out” into the intersection from its previously stopped position? Or what? “ ‘You pay your money and take your choice,’ and everyone is entitled to his own guess; but we cannot permit a man to be guessed into liability.” Greenwood v. Vanarsdall, 356 S.W.2d 109, 112 (Mo.App.1962). There is no “requirement that every person who operates an automobile on a through highway in a rural area must operate it so that in every case he can in some manner avoid any automobile which is unlawfully and deliberately driven onto the highway from a side road directly and immediately in front of him.” Pitts v. Garner, supra, 321 S.W.2d at 519.

Trooper Graham testified that “apparently the door [on the driver’s side of the station wagon] had came open on impact and [decedent’s] head and neck to his shoulders had went . . . between the door post on the windshield and the door post itself . . . and his head had came between that and when the car rolled, it came back shut. In other words, it had closed on his neck.” He also stated that because the station wagon was on its top and partially rolled onto its left side, it was necessary to obtain the services of a wrecker “to hook onto the car to pull it back up on its right side to get the door open to dislodge the body from the car.” When asked if it was necessary to pry the door open “with crowbars and stuff” or if it could be opened “with the door handle,” the patrolman answered: “Truthfully I couldn’t answer that, sir, I don’t actually remember.” No pictures of the station wagon were offered in evidence and no witness undertook to describe the nature and extent of damage sustained by that vehicle as a result of its running into and upsetting in the ditch.

The mere happening of an accident does not establish negligence on the part of a motorist. Harris v. Lane, 379 S.W.2d 635, 638[6] (Mo.App.1964). Thus, the mere fact there was an impact of the station wagon with an embankment in the ditch, or the fact of the vehicle “flipping over” in the ditch, did not constitute substantial evidence of any negligence on the part of the decedent or alone serve to prove the station wagon was being driven at an excessive speed. We have already echoed that excessive speed may be proved by circumstantial evidence; we add recognition that while neither skidding nor the heavy destructive effect of an impact is in itself proof of negligently high speed, either, when taken together with all other circumstance, may indicate excessive speed. Rakestraw v. Norris, supra, 478 S.W.2d at 416[11], In the instant case there was no pictorial evidence nor verbal description of the damage inflicted to the station wagon save what was said by Trooper Graham, supra. Ergo, whether or not the station wagon was heavily damaged in the accident, which considered together with other circumstances would justify a reasonable inference of excessive speed, would be an apparition a jury could come by only through visionary prowess dehors the record.

Plaintiffs’ argument that the speed of the station wagon could be considered excessive because the distance it traveled “in the space of time that a witness could turn her head from front to rear,” is based on the assumption that the station wagon traveled at least 68 feet to the intersection, plus 25 feet across Black Cat Road and another 64 feet from the west edge of Black Cat Road where it came to rest in the ditch, or a total of 157 feet “in the brief time it took Evelyn Phillips to turn her head.” However, the records show Mrs. Phillips agreed that it was after the station wagon met and passed the Phillips vehicle her husband remarked concerning the camper and that the statement was made when their car “was perhaps four car lengths east of the intersection.” Therefore, by Mrs. Phillips’ account the station wagon was at some unspecified distance, but less than 68 feet from the intersection when the two vehicles met and passed. Furthermore, plaintiffs’ calculations do not account for the unknown time required for Mr. Phillips to make his observation and to utter his statement, nor the reaction time required for Mrs. Phillips to respond to her husband’s remark. An attempt to compute rates of speed from fragments laced with unknowns is a haphazard try at a precarious solution which is pervaded with substantial doubt.

Decedent’s familiarity with the intersection and the testimony of witnesses that when the camper was a block south of the intersection they felt it was not going to stop, do not tend to prove the speed of the station wagon at anytime nor offer substantial evidence from which the station wagon’s speed could be reasonably inferred. Such factors might relate to an awareness of possible danger at the intersection or show excessive speed in light of all the circumstances, but a showing of excessive speed presupposes that the speed has been established which these factors do not tend to do.

Plaintiffs contend that excessive speed of a vehicle may be shown by piecing together various known factors as was done in Marshall v. Bobbitt, supra, 482 S.W.2d at 443. We do not disagree, but point out the factors shown in Marshall are not known here. E. g., in Marshall defendant said his speed was 60 — 65 m. p. h.; from 65 — 85 m. p. h. according to other witnesses. The speed of the station wagon was unknown on the occasions with which we are concerned. The defendant in Marshall could and should have seen the pickup driven onto the highway from a side road when defendant was 375 feet from the intersection; the position of decedent in this case at the time the camper gunned out into the intersection was not shown with any degree of certainty. Also present in Marshall, among other facts for the jury to consider in determining excessive speed or not, were defendant’s speed at point of collision, violence of the impact, the speed of both vehicles after the momentum-absorbing impact, and the length of skidmarks of both vehicles from point of collision to where they came to rest. None of these items were present in the instant case.

It would require too much space to discuss all of the cases cited by plaintiffs. We do not disagree with them but observe that all but Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698 (Mo.1969) and Hausherr v. Kansas City Public Service Co., 268 S.W.2d 433 (Mo.App.1954), had some semblance of direct testimony of the speed of the involved vehicles. In Wehrkamp there were known distances from which the jury could reason backwards and find the vehicle entering the highway could have been seen doing so by the other driver when he was 650 feet from the crossover. Also present in that case was evidence of the tremendous damage to both vehicles, skidmarks after impact, etc. Hausherr presented evidence of the known location of defendant’s streetcar from the intersection when the automobile entered, the fact the streetcar traveled in excess of 200 feet while the automobile was being driven 28 feet, the uncontradict-ed finding that the streetcar carried the automobile 80 feet before it became disengaged and did not stop until it (the streetcar) was 113 feet beyond the point of collision.

Out of the welter of vague and irreconcilable testimony of the witnesses, the failure of any factor shown by their testimony, either singly or collectively, to permit a reasonable calculation of the speed of the station wagon at any given time or place, and the lack of any showing that the unknown speed of the station wagon was such that the accident would not have occurred had the rate been slower, we conclude that liability in this case based on alleged excessive speed could only be found in speculation, guesswork and conjecture. Cf. Probst v. Seyer, 353 S.W.2d 798 (Mo.1962).

Whether negligence can or cannot be inferred from given facts is a question of law. Determination of whether evidence is substantial, as a matter of law, and warrants inferences sufficient to submit it to the jury is a judicial function. “When evidence is such that, without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by nonsuit, directed verdict or otherwise in accordance with applicable practice without submission to jury, or by judgment notwithstanding the verdict. .

That means that where facts in evidence and legitimate inferences therefrom are so strongly against a verdict for plaintiff[s] as to leave no room for reasonable minds to differ, defendant is entitled to a directed verdict.” Tharp v. Monsees, 327 S.W.2d 889, 899[12, 13] (Mo. banc 1959).

For the reasons heretofore given, the judgment is reversed and the cause remanded to the circuit court from whence it came with directions to enter judgment for defendant.

All concur.

      . Defendant also appealed from the trial court’s denial of his motion for judgment in accordance with his motion for directed verdict. We, sua sponte, dismissed that appeal as being unauthorized by § 512.020 RSMo 1969. Powell v. Watson, 516 S.W.2d 51 (Mo.App.1974).

      . No witness testified to the length of a block, but it is common knowledge that a block is approximately 300 feet long. Lilly v. Boswell, 362 Mo. 444, 452-453, 242 S.W.2d 73, 76[4] (1951); Mullen v. McDonald, 494 S.W.2d 694, 695, n. 1 (Mo.App.1973).


author: DOWD, Judge.

text:
    James Willie LEE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36056.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 8, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      G. Jeffrey Lockett, Asst. Public Defender, Circuit Public Defender Bureau, St. Louis, for movant-appellant.
    William M. Frain, Asst. Circuit Atty., St. Louis, John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   DOWD, Judge.

Movant-appellant appeals from a judgment of the Circuit Court of the City of St. Louis denying his motion to vacate a criminal conviction under Supreme Court Rule 27.26, Y.A.M.R.

Appellant was convicted by a jury of robbery in the first degree by means of a dangerous and deadly weapon, and sentenced by the court under the Second Offender Act to thirty-five (35) years imprisonment. Sections 556.280, 560.120, and 560.135 RSMo 1969, V.A.M.S. His conviction was affirmed by this court on direct appeal. State v. Lee, 492 S.W.2d 28 (Mo.App.1973).

Essentially, appellant raises two points on this appeal. First, appellant contends that the trial court erred in not vacating his conviction arguing that in his original trial the jury was not adequately instructed, as to criminal intent. Secondly, appellant contends the trial court erred in denying his 27.26 motion because of his claim and proof of newly discovered evidence. We shall take the points in order.

The first point that the instructions were inadequate because the jury was not instructed as to the requisite criminal intent was dismissed by the trial judge because instructional matters are properly the subject matters of direct appeal and not within the scope of a Rule 27.26 proceeding. We agree.

Errors in instructions are trial errors and generally cannot be presented in a 27.-26 motion because to do so would transform the motion into a substitute for a direct appeal or for a second appeal. Rule 27.-26(b)(3); Agee v. State, 512 S.W.2d 401 (Mo.App.1974); Brown v. State, 492 S.W.2d 762 , (Mo.1973). Appellant failed to raise instructional error in his direct appeal. State v. Lee, supra.

Appellant nevertheless argues that the trial court failed to instruct the jury on criminal intent and this was a “glaring” error and deprived the appellant of a fair trial and due process. Appellant relies on Tucker v. State, 481 S.W.2d 10[4] (Mo.) which states at 14: “Matters of instructions, if error at all, are trial errors and are not to be raised collaterally, certainly not unless the error is so glaring as to make the trial unfair. State v. Smith, Mo., 411 S.W.2d 208 . . . A motion under Rule 27.26 is not a second appeal or a substitute for a motion for a new trial. State v. Hooper, Mo., 399 S.W.2d 115.” We have carefully reviewed the trial court’s instructions and find that these instructions clearly and adequately instructed the jury as to the necessary criminal intent.

Instruction No. 1 directed the jurors to find appellant guilty of first degree robbery by means of a dangerous and deadly weapon if they believed (among other things) that appellant (1) “Feloniously and willfully and by means of a dangerous and deadly weapon” took the victim’s property, and that (2) appellant had “felonious intent then and there to permanently deprive [the victim] of said property and to convert the same to his or their own use.” Instruction No. 3 stated in part: “All persons are equally guilty, who act together with a common intent in the commission of a crime If one is only a spectator, innocent of any unlawful act or criminal intent, and does not aid, abet, assist, advise or encourage another or others in the commission of a crime, that person is not liable as a principal or otherwise, and should be acquitted.” This contention is without merit.

Secondly, appellant contends that the court erred in not granting him relief on his 27.26 motion because of his claim and proof of newly discovered evidence. At appellant’s trial the evidence showed appellant had assisted another man in the robbery of a confectionery. A summary of the trial evidence can be found in the decision of this court affirming appellant’s conviction on direct appeal. State v. Lee, supra. The only witness at the post-conviction hearing was Clem Carpenter, who had pleaded guilty to two charges of first degree robbery by means of a dangerous and deadly weapon and received two concurrent 20 year sentences. Carpenter’s pleas of guilty involved the same robbery in which appellant was convicted. Carpenter’s pleas of guilty were upheld by this court in Carpenter v. State, 513 S.W.2d 702 (Mo.App.1974).

At the 27.26 hearing the transcript of Carpenter’s pleas of guilty showed that Carpenter, in answer to a question as to how the robbery took place, stated: “Defendant Carpenter: We goes in and buys a drink, sits in the car, and we go back in and robbed him.” At the hearing Carpenter stated he did not know how the word “we” got in his answer. Carpenter testified that he alone committed the robbery and had forced appellant at gun point to collect the money from the victims.

With respect to the testimony of Carpenter as “newly discovered evidence” the trial court, in its Memorandum Opinion, found Carpenter’s credibility as a witness “to be impeached by reason of his having been twice convicted of a felony; that his testimony is not sufficiently persuasive to carry Movant’s burden on this ground, particularly when it is considered in the light of the testimony of the witnesses who incriminated Movant [at his original trial] as a voluntary participant in the offense.”

We first note that newly discovered evidence has been held not to be a basis for relief in a 27.26 proceeding. Agee v. State, 512 S.W.2d 401 (Mo.App.1974); Beishir v. State, 480 S.W.2d 883 (Mo.1972). Nevertheless, those cases that have so held have also reviewed the sufficiency of the new evidence, and we shall follow their example.

Appellant’s principal contention concerning the new evidence is that the trial court, in finding that the new evidence was insufficient to carry the burden of persuasion applied an improper standard of proof and imposed an excessive burden of proof on appellant, and thus denied appellant due process of law. Appellant’s theory is that the trial court, in its consideration of new evidence, can only determine whether appellant has proved by a preponderance of the evidence that there is newly discovered evidence and that “it is fit for submission to the jury.” Appellant further reasons that by imposing on the appellant the burden of proving not only that the new evidence exists, but also that the weight and credibility of the evidence is such as to erase or seriously question the guilt of appellant, the trial court has usurped the province of the jury. Not so.

Appellant’s theory of the function of the hearing judge as to newly discovered evidence in a 27.26 proceeding, if sustained, would lead to impractical results and transform the trial judge into a robot. If the hearing judge could determine only whether new evidence exists and “is fit for submission to a jury” the trial judge would be deprived of discretion. According to appellant’s argument, a prisoner would only have to produce new evidence through affidavits, witnesses, or other means. Once the hearing judge determined the evidence was new, then according to appellant’s argument the judge would be forced to grant the prisoner a new trial, wherein the jury would evaluate the weight and credibility of the new evidence. This is not the law.

The weight of the evidence and credibility of the witnesses are matters for the trial court, and the trial court has the right to reject testimony on behalf of mov-ant in a 27.26 hearing even though there was no contrary evidence offered at the hearing. Shoemake v. State, 462 S.W.2d 772 (Mo. banc 1971).

In a 27.26 proceeding the prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f). When the ground for relief is newly discovered evidence, the issue for the court is not simply whether the prisoner has produced new evidence, but whether the prisoner has produced substantial evidence of probative value that tends to disprove his guilt. State v. Stegall, 485 S.W.2d 414 (Mo.1972); Beishir v. State, supra.

The experienced trial judge was not compelled to believe Carpenter, Shoemake v. State, supra. This is especially true in view of his prior record, his use of the word “we” to describe the participants in the robbery, and the testimony implicating the appellant at appellant’s trial.

Appellate review of 27.26 proceedings is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). Being mindful of the hearing judge’s unique opportunity to observe the demeanor of the witness, and having carefully reviewed the records of the original trial and the 27.26 proceeding, we cannot say the hearing judge was clearly erroneous in finding the sole witness’s credibility to be questionable and his testimony unpersuasive.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.

      . This “fitness” conceivably could be measured by the judge’s estimation of its credibility.


author: RENDLEN, Judge.

text:
    Ray Curtis SANDERS and Betty Sanders, Plaintiffs-Respondents, v. H & S MOTOR FREIGHT, INC., a corporation, Defendant-Appellant.
    No. 36229.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 29, 1975.

      Keyes & Hearne, John L. Hearne, Jefferson City, for appellant.
    Gray & Ritter, St. Louis, for respondent.
   RENDLEN, Judge.

H & S Motor Freight, Inc., defendant below, appeals the $150,000 judgment entered on a verdict for injuries to plaintiff Ray Sanders. His wife Betty Sanders received a verdict of $30,000 for loss of consortium but filed a voluntary remittitur reducing her award to $17,500 and no appeal is taken from that judgment. The action arose from a two-truck accident, one driven by plaintiff Ray Sanders and the other by defendant’s employee Claude Hayes.

We consider three assignments of error: (1) the trial court erred in sustaining plaintiff’s objection to defendant’s introduction of a photocopied document intended to impeach defendant’s own witness; (2) Ray Sanders’ judgment was grossly excessive; and (3) the excessive verdict demonstrated bias and prejudice of the jury. Defendant further asserts there was a failure of proof as to Claude Hayes’ employment with H & S Motor Freight. This point, not raised in defendant’s motion for new trial as required by Rule 78.07, V.A.M.R. (formerly Rule 79.03), is not preserved for appeal and there is no basis for its consideration as plain error. We affirm.

On September 15, 1971, tractor-trailer trucks driven by plaintiff Ray Sanders and defendant’s employee Claude Hayes simultaneously attempted to cross a bridge from opposite directions on Highway 52, an east-west road in Miller County. Plaintiff’s truck had passed an automobile driven by John Houston somewhat to the west but had returned to its own lane before reaching the bridge. As defendant’s truck entered the bridge it jackknifed four or five feet into plaintiff’s lane causing the collision in which the left front of plaintiff’s vehicle was struck by the back wheels of the tractor and the left front of defendant’s trailer. Plaintiff, rendered unconscious by the crash, did not “come to” until in the hospital at Jefferson City where he was treated for extensive injuries. Defendant does not challenge the sufficiency of the evidence concerning its driver’s negligence but complains of the verdict amount.

The facts giving rise to defendant’s first contention of error occurred when its counsel called John Houston as a witness for the defense. Contrary to defendant’s expectations, Houston testified plaintiff Ray Sanders was on his proper side of the highway immediately prior to the collision. Counsel, out of the jury’s hearing, told the court he had not interviewed the witness prior to trial but had a statement signed by Houston to the effect that Sanders’ truck was straddling the center line at the time of impact. In view of the contrary testimony, defendant’s counsel claimed surprise and requested permission to use the written statement to refresh the witness’ recollection, or apparently for impeachment. Still outside the jury’s hearing voir dire examination of Houston was undertaken, at which timé he was presented a photocopy (defendant’s exhibit E-1) and a carbon copy (defendant’s exhibit E-2) of the three-page handwritten statement. During voir dire plaintiff’s attorney objected to use of the photocopy (defendant’s exhibit E-1) arguing there was no evidence it was taken from the original document. Because there was no explanation of the unavailability of the original, the objection was sustained. of The defense continued its interrogation Houston to establish the authenticity of both exhibits. Though the witness denied having made certain statements appearing in the exhibit, he admitted the signatures were his. It is not clear from the record if Houston, when testifying, was examining the photocopy, the carbon copy or both, but he acknowledged having signed the original. Plaintiff then withdrew his objection to the statement (apparently referring to the carbon copy) but when the jury returned he renewed his objection to the photocopy (defendant’s exhibit E-l) which the court again sustained as not the best evidence. Though plaintiff made no objection to admission of the carbon copy (defendant’s exhibit E-2), defense counsel did not avail himself of the opportunity to use that exhibit; instead he excused Houston from the stand and in the jury’s presence called witness Harold Punches to lay a foundation for the use of the photocopy.

On direct examination by defendant, Punches testified he was branch claim manager with Truck Insurance Exchange, that he hired the investigator who took the original statement of Houston, that the photocopy was a true copy of the original made at the “Exchange” claims office and the original could not be located. On cross examination Punches stated that “Exchange” carried the insurance on defendant’s truck and had a financial interest in the outcome of the suit, to which defendant made no objection.

Recalling Houston, defendant confronted him with the photocopy and read it into the record. Though permitted finally to use exhibit E-l for impeachment of its own witness, defendant contends the statement was collateral to the issues on trial and hence did not fall under the best evidence rule per Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306 (Mo.App.1965). Defendant claimed it was then prejudiced when forced to lay a foundation leading to disclosure of insurance coverage. However, if it is found the trial court erred, the error is reversible only if there is prejudice to the complaining party. Kennedy v. Tallent, 492 S.W.2d 33, 39[9] (Mo.App.1973). We find no such prejudice.

Defendant contends the ruling of the trial court made it necessary to lay a foundation for exhibit E — 1; however, defendant was not required to do so in the presence of the jury. Proof of loss or destruction of primary evidence is a question solely for the court and not the jury. Garrett v. Terminal R. Ass’n of St. Louis, 259 S.W.2d 807, 811[1] (Mo.1953); Scrivner v. American Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1001, 1008[7] (banc 1932). When a question is one of law to be decided by the court, the evidence may properly be submitted out of the hearing of the jury. Hutchinson v. Steinke, 353 S.W.2d 137, 144[6] (Mo.App.1962). Defendant did not request the jury be withdrawn during the testimony of Punches and a party cannot argue as error an incident of his own creation. Benjamin v. Benjamin, 370 S.W.2d 639, 643[11] (Mo.App.1963). Whether this was done by mistake or as a matter of trial strategy, defendant opted to examine the witness in the jury’s presence. Notwithstanding plaintiff’s withdrawal of his objection to defendant’s exhibit E — 2, defendant elected not to use the carbon copy for impeachment though this would have obviated the necessity of calling Punches. “[A] party will not be heard to complain of alleged error in which, by his own conduct at the trial, he joined or acquiesced.” Benjamin v. Benjamin, supra at 643[11]; Taylor v. Cleveland C., C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W.2d 69, 75[15] (1933). Defendant’s first assignment of error is without merit.

Defendant next contends the $150,000 verdict is grossly excessive and the trial court erred in overruling its motion for remittitur. There is no precise formula for determining the amount of damages in a personal injury case, but a recovery is measured by that which is “fair and reasonable compensation” sufficient to provide a livelihood and care and comforts to ameliorate the suffering of the victim. Moore v. Beady Mixed Concrete Co., 329 S.W.2d 14, 30[14] (Mo. banc 1959). The question of excessive jury awards rests on the facts of each particular case, Wren v. St. Louis Public Service Co., 355 S.W.2d 365, 374[14] (Mo. App.1962), giving consideration to the nature and extent of the injuries and losses, plaintiff’s age, his diminished earning capacity and changing economic factors, all weighed in light of the ultimate test of fairness and reasonableness. Crane v. Northup, 413 S.W.2d 190, 194 (Mo.1967); Painter v. Knaus Truck Lines, Inc., 375 S.W.2d 19, 26[9] (Mo.1964). We also look to other cases involving injuries similar to those suffered by plaintiff so that there is reasonable uniformity as to the amounts of verdicts. Moore v. Beady Mixed Concrete Co., supra at 31.

“Although an appellate court properly may determine, as a matter of law, whether the verdict under review is in excess of the maximum amount which the evidence in the case would support * * *, the assessment of damages is peculiarly and primarily the function of the jury, whose duty it is to award such sum as reasonably will compensate plaintiff * * * and, the appellate power to interfere with and reduce a verdict is exercised with caution * * * and only where the amount of the verdict is manifestly unjust. * * * ⅛ determining whether a verdict is excessive, we do not weigh the evidence but * * * consider it in the light most favorable to plaintiff and the verdict, disregarding defendants’ contradictory or unfavorable evidence.” Hart v. City of Butler, 393 S.W.2d 568, 580[19, 20] (Mo.1965).

Plaintiff Ray Sanders, 34 years of age when injured, had experience as a factory worker, general laborer and truck driver. In the accident he suffered a fracture of the mid-shaft of the right femur which was displaced about 2 inches, tearing the surrounding muscle, the peritoneum and causing bleeding in the leg. He also sustained a severe comminuted fracture of the left femur near and into the knee joint through the superior condyle of the femur. This injury was described by the treating and the examining physicians as a complicated multiple fracture with numerous bone fragments. Plaintiff also suffered a dislocation of the distal joint of the left big toe, a pneumothorax or partial collapse of the right lung, rib fractures on the right and various lacerations, including a cut on the left side of the head, a two-inch cut in his right thigh and a five-inch laceration of the left heel, the latter two requiring sutures. Pins were inserted in both legs for traction and a closed thoracotomy was performed on the right chest by insertion of a tube and other procedures to relieve the pneumotho-rax. The fracture of the right femur was repaired by open reduction and insertion of a steel rod in the marrow cavity, accomplished by driving the rod through the upper portion of the femur into the buttocks and on alignment of the fractured parts, driving it down through the length of the bone. The comminuted fracture of the left femur was repaired by open reduction and internal fixation with a Messner plate and multiple bolts, nuts and screws to join the numerous fragments.

Sanders was hospitalized on four occasions. The initial stay was September 15 through October 14, 1971, during which much of the surgical and other treatment was administered. In pin traction prior to the major surgery to his legs, he remained in the hospital 19 days after those corrective procedures. Readmitted 15 days later, plaintiff remained for a week with pneumonia of the right lung. Experiencing continuous pain in the left wrist, he was admitted for a third hospitalization December 6,1971, at which time a transverse navicular fracture of'the left wrist was discovered and a cast applied. He was dismissed from this stay December 8. The fourth hospitalization, January 17 through 22, 1972, was for physiotherapy to correct muscular weakness of the legs and assist in regaining his ability to walk. Prior to his January 22, 1972, release, plaintiff had been unable to walk and when not in the hospital was confined at home in bed. On completion of therapy he used crutches through March or April, 1972, and a cane until September. The left femoral fracture was not completely healed more than one year following the injury.

Prior to the accident plaintiff had been employed by Waites Farm and Feed Supply and though hampered by his injuries, he returned there October 1, 1972, 54 weeks after the accident. Plaintiff now walks with difficulty, has a decided limp, and while able to operate a truck, can no longer drive through on longer trips; he must stop and rest due to pains in his legs. It is also necessary for a helper to ride or work with him to tie the tarpaulin on the top of the truck, load turkeys, stack feed bags, carry sacks of grain or similar loads since plaintiff unassisted is not able to do the necessary climbing, carrying or lifting. Defendant admits plaintiff lost $8,370 in wages between the date of the accident and his return to work October 1, 1972. Since his return he has received $120-$130 per week as compared to $160-$170 per week prior to the accident. He works less now and because of the injuries misses 7 to 8 days per month from the job. His reduced hours resulted in lost wages of $2,720 from October 1, 1972, until the time of trial in January of 1974. Medical expenses at the time of trial were $6,820.75, which with lost earnings total $17,910.75. Plaintiff was 36 years of age at the time of trial in January of 1974 and if his condition permits him to work at his present rate until 65 (a total of 29 years) with earnings diminished approximately $40 per week, his wage loss, by conservative estimate, would exceed $60,-000. If his condition deteriorates, and the medical testimony indicates it will not improve, this wage loss could increase. Thus his special damages to date, coupled with reasonably anticipated loss of earnings, are more than $77,900.

The injuries produced permanent seque-lae, rendering plaintiff unable to work as before, limiting his ability to walk or climb because, as he testified, his legs “won’t bend” properly without hurting. The mid-shaft fracture and distortion of bone fragments in the right femur produced torn muscles and soft tissue damage at the fracture site with resulting scar tissue, diminished stamina and weakness in that leg. Because of the fractures in the left leg involving the superior condyle of the femur and the knee joint, arthritic formations or spurring have appeared in the joint under the kneecap. The presence of this condition in late 1972 confirmed the original prediction that plaintiff would experience stiffness, swelling and pain in the joint which would increase with age. These arthritic changes are not ordinary degenerative arthritis seen in advancing years but instead traumatic arthritis due to the irregularity or granulation in the load bearing surface of the joint. It was compared to “throwing sand into a roller bearing”. The joint is affected by a decrease in the circulation and deposits of scar tissue in the joint at the fracture, permanently affecting the articular surfaces. From the tenor of the medical testimony, plaintiff has attained maximum recovery, can expect no further improvement and if his condition changes it will be for the worse. The doctors further noted that one of the screws inserted in the left knee protrudes, producing sensitivity and any bump of the knee will cause pain. Plaintiff testified that bumps to the inside of his knee in fact cause severe pain and for some time thereafter he cannot walk or stand on his leg. Though difficult to describe, plaintiff testified that it feels like a pin or needle sticking in a raw sore. From September, 1971, until January, 1972, he traveled to and from the hospital by ambulance. Plaintiff returned to work when permitted by the doctor but when his leg hurts it is necessary to stop, and even those things which he can do take him longer than before.

Defendant cites numerous cases in support of its plea for remittitur. In all but four the appellate court affirmed the verdict and those in which remittiturs were ordered are sufficiently dissimilar not to be controlling here. Crane v. Northup, 413 S.W.2d 190 (Mo.1967), cited by defendant, involves a 28 year old carpenter who suffered lower left leg and foot injuries and emotional sexual inadequacy. There was no evidence that plaintiff’s sexual inadequacy was permanent and medical testimony demonstrated that while the lower leg was damaged and not normal, plaintiff had movement of his knee and his leg was a “good usable leg”. Crane at 191. There was loss of one toe and injury to another. While the foot was not normal, “[t]he foot looks good ... In walking his foot gets down pretty well.” Crane at 192. The evidence was not clear as to loss or extent of future earnings. The nature of the permanent injuries and their disabling effect and anticipated loss in Crane are not comparable to the far more extensive injuries in the case at bar.

The court in Crane distinguished two of the cases relied on by defendant here: Humes v. Salerno, 351 S.W.2d 749 (Mo.1961), and Boehm v. St. Louis Public Service Co., 368 S.W.2d 361 (Mo.1963). According to the court, the injuries and losses to the plaintiff in Crane “are much more extensive” than those involved in either Humes or Boehm. Crane at 193. In Humes a 34 year old jockey was bitten on the leg by a horse. The plaintiff sustained some irreversible damage to the leg muscle and the calf of his leg atrophied one inch, causing “some impairment [of] his [capacity] to ride.” As the Crane court pointed out, the Humes case “involved but a foot and ankle.” There was evidence of only one month’s lost wages and there was no showing of specific loss or reduction of future earning capacity. The distinction in degree and type of injury, vis-a-vis that in the case at bar, is clear.

The injury sustained by the plaintiff in Boehm, an 11 year old girl, was “a permanently damaged and distorted leg and a permanent limp.” The Boehm court points out, however, that “[although grievous and impressive the injuries do not compare in sériousness with those in many broken leg cases in which large verdicts have been upheld. Pins, wires, plates, traction, braces and crutches do not figure in this case There was no testimony about pain, past, present or future [plaintiff] is able to run, jump, walk, skate and play, although not as hard and fast as previously.” Boehm at 370[11]. The court further stated, “There is no demonstrated loss or dimunition of earning power; no demonstrated disability to earn a living or pursue normal household duties. No loss of earnings, doctor’s and hospital bills, or other items of special damage are to be accounted for in this award.” Boehm at 370[11].

Defendant’s fourth cited case involving remittitur, Boydston v. Burton, 379 S.W.2d 536 (Mo.1964), involves a 21 year old female plaintiff who suffered permanent weakness in her big toe, partial paralysis of the right foot and limitation of rotation of the right hip with progressive type of traumatic arthritis in the hip joint. The court points out that the foot was subsequently repaired considerably improving her ability to raise her foot and enabling her to walk “fairly decent [sic]” but with a slight limp. Boyd-ston at 544[9]. Further, the court notes, “[w]hen her hip bothers her, it is just a momentary pain that goes right away except that perhaps once a month or once every six weeks, the pain has not disappeared right away and has caused her to go to bed and use a heating pad; other than that, she is able to walk and get around.” Boydston at 545[9]. There was no claim for loss of earnings, hospital and medical expenses or other elements of special damages.

We note further that defendant cited cases from seven to fourteen years ago. This and dissimilarity in injuries and losses distinguish each of the cases involving re-mittitur. In considering claims of excessive verdicts, we recognize the constantly eroding purchasing power of the dollar, which as noted in Zipp v. Ciasen's Drug Stores, Inc., 449 S.W.2d 612, 623 (Mo.1970), amounted to 20% between 1965 and 1970, and in Shaffer v. Kansas City Transit, Inc., 463 S.W.2d 606, 610[2] (Mo.App.1971), it was estimated that the decline between 1957 and 1971 was in excess of 30%. The rate of decline since 1971 has steadily increased and inflation today has become a major national concern.

In Woodford v. Illinois Central Gulf R.R. Co., 518 S.W.2d 712, 718[14] (Mo.App.1974), this court has summarized the controlling considerations:

“The factors bearing on whether a verdict is excessive are well known. They are: (1) the nature and extent of plaintiff’s injuries, (2) the permanency of plaintiff’s injuries, (3) plaintiff’s age, (4) examination of cases involving awards for similar injuries, (5) due regard for economic factors (inflation, etc.), and (6) an awareness of the fact that the jury and the trial court had a superior opportunity to appraise plaintiff’s injuries . It is axiomatic that in reviewing the excessiveness of a verdict, only the evidence favorable to the plaintiff will be considered.”

Though we find little mention of pain and suffering in defendant’s argument, these factors properly constitute elements of damages for which recovery is allowed, as well as future pain and suffering, provided there is the requisite certainty or probability that such pain and suffering will result. Hurst v. Chicago, B. & Q. R. Co., 280 Mo. 566, 219 S.W. 566, 569[4] (1920); Clayton v. Metalcrafts Corp., 12 S.W.2d 938, 941[5] (Mo.App.1929); 22 Am.Jur.2d Damages §§ 105 and 106, pp. 154 — 155. The record is replete with evidence of plaintiff’s pain and suffering, and though now diminished, it is a -constant factor in his life, expected to increase with age. It is difficult to assign a dollar figure to pain and suffering since it has no monetary equivalent and damages awarded therefor should, whenever possible, be left to the judgment of the jury, subject only to correction by the courts for abuse. See Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 102, 117 — 118[17] (Mo.1973). In Asher v. Griffin, 342 S.W.2d 255, 261[8] (Mo.App.1961), the court stated: “It is a fundamental rule that an Appellate Court should not disturb a verdict as excessive unless it appears excessive as a matter of law, that is, when the verdict is clearly for an amount in excess of the very most that the proof of damages would reasonably sustain . . . and then only when the verdict is grossly excessive to such a degree that it shocks the conscience of the Court . . . ” Moreover, the issue of excessiveness was here submitted to the trial court which refused remittitur, and absent abuse of discretion the judgment of the trial court will not be disturbed on appeal. Morris v. Israel Bros., Inc., 510 S.W.2d 437, 447[13] (Mo.1974).

We have carefully reviewed the record as to plaintiff’s age, injuries, capacity for gainful employment, erosion of the dollar’s purchasing power, pain and suffering, medical expenses, loss of wages and related matters and find the amount of judgment does not shock the conscience of this court. Although generous, we determine no remittitur is required. Wren v. St. Louis Public Service Co., 355 S.W.2d 365, 374[15] (Mo.App.1962).

Finally, defendant argues the verdict was so grossly excessive it indicates bias and prejudice of the jury requiring a new trial. To establish such claim of prejudice there must be both an excessive verdict and some other improper action or misconduct during trial. Boehm v. St. Louis Public Service Co., supra at 369[9, 10]; Cline v. Carthage Crushed Limestone Co., supra at 116[17]. Defendant offers as its supporting impropriety the requirement that defendant lay a foundation for introduction of defendant’s exhibit E-l. As determined above, there was no prejudice involved in that action of the court and we have found the verdict not excessive. This assignment of error fails.

We have considered plaintiff’s contention of res judicata but find it unnecessary to rule the point.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.

      . Each of the photocopied pages (defendant’s exhibit E-l) bore Houston’s signature at the bottom as did the third page of the carbon copy (defendant’s exhibit E-2), but the first two carbon pages bore only a few letters of what might have been a signature.
      The absence of signatures on the first two pages were attributed to slippage of the carbon paper while being written. The statement, except for signatures, was not in Houston’s handwriting.

      . Plaintiff is now and was before the accident paid on both a mileage and an hourly basis. His hourly rate has risen from $1.60 at the time of the accident to $2.00 per hour at trial but the mileage has remained at $.08 per mile. It is not clear how much of his earnings are from each part of his employment but the mileage is earned under an arrangement for truck rental involving plaintiff and his son-in-law as drivers. This arrangement was in the nature of “contract hauling” and “rental” is reflected as part of plaintiffs earnings. Defendant in its brief erroneously asserts the record reflects plaintiff drove approximately 100,000 miles in 1973 and suggests most if not all of plaintiffs earnings that year were from that source. From this defendant concludes plaintiff earns more since the accident than before. The record does not so show nor is defendant’s position supported by inference. As previously stated, since plaintiffs earnings from Waites are derived from a variety of activities, the evidence does not, as defendant suggests, conclusively refute plaintiffs testimony of diminished earnings. Defendant seeks to take as true the evidence most favorable to its view and would have us discount or ignore plaintiffs contrary testimony. This we may not do.


author: TURNAGE, Judge.

text:
    Jane Marie WALTZ et al., Appellants, v. CAMERON MUTUAL INSURANCE COMPANY, Respondent.
    No. KCD 26839.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1975.

      Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for appellants.
    George T. O’Laughlin, Thomas M. Moore, Miller & O’Laughlin, P. C., Kansas City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Plaintiff Jane Waltz (Plaintiff) sought to recover from defendant damages under the uninsured motorist provision of an insurance policy issued by defendant. Plaintiff was riding as a passenger in an automobile owned by Wayne Pettit, which was covered by a policy of insurance issued by the defendant, when she was injured as a result of a collision between such automobile and another automobile which was uninsured.

Plaintiff alleged in her petition she was covered under the uninsured motorist provision of the policy defendant issued on the Pettit automobile, or in the alternative, defendant failed to obtain a written rejection of the uninsured motorist coverage from Pettit. The petition further alleged facts tending to show plaintiff’s injuries to have been due to the negligence of the uninsured automobile driver.

Plaintiff filed interrogatories directed to defendant to obtain a copy of the insurance policy defendant issued on the Pettit automobile. Defendant submitted a copy of the policy which it stated was in effect on the Pettit automobile at the time of plaintiff’s injury. This policy contained the following provision with respect to the uninsured motorist coverage: “(c) With respect to the insurance under coverage H the unqualified word “insured” means the first named natural person and not a corporation, firm or partnership, and, while residents of the same household, the spouse of the first named natural person and the relatives of either.” Defendant then filed request for admissions of plaintiff and her husband, who joined as a plaintiff for his loss of services claim. As a result of these requests, plaintiff and her husband stated they did not have sufficient knowledge to admit defendant issued a policy of insurance to Pettit and stated to the best of their knowledge there was insurance on the automobile in which plaintiff was riding but they had to rely on what the driver of such automobile told them since they had never seen a policy. Plaintiffs further admitted neither of them was a relative of Pettit or his wife, that neither was a resident of the household of Pettit, either prior to or subsequent to plaintiff’s injury.

Plaintiff filed a request for admissions directed to the defendant asking the defendant to admit a policy of insurance was issued to Pettit by it and that Pettit did not give defendant a written statement rejecting uninsured motorist coverage. The request further sought to establish the automobile plaintiff was riding in was covered by defendant’s insurance policy. No particular coverage was suggested in this request. The defendant did not deny these requests and they stood admitted.

Thereafter defendant filed its motion for summary judgment stating there was no material issue of fact in that it had been established that plaintiff was a passenger in an automobile owned by Pettit, that such automobile' was insured under a policy issued by the defendant, and that neither of the plaintiffs was a member of Pettit’s household at the time of the injury. This motion was supported by the affidavit of defendant’s claim manager which stated the copy of the policy issued to Pettit was attached thereto. By a deposition of defendant’s claim manager it was established the copy of the insurance policy defendant stated was issued to Pettit was the only form of policy issued by the defendant covering the period when plaintiff was injured with respect to the definition of insured under the uninsured motorist provision.

In response to defendant’s motion for summary judgment, plaintiffs Jane Waltz and her husband filed an affidavit' stating they did not have sufficient knowledge with which to admit or deny the genuineness of the copy of the policy submitted by defendant, and further they did not have any means to secure information or knowledge concerning the policy because Pettit and his wife told them the original policy had been destroyed. Plaintiffs further caused an affidavit to be filed by Pettit in which he stated defendant had issued its policy to him and his wife covering the period during which plaintiff was injured, and stating he did not recall ever seeing a full and complete copy of the policy. This affidavit further stated it was the “understanding” of Pettit that defendant’s policy provided uninsured motorist coverage for him and the occupants of his ear and he did not recall anyone- from the defendant company ever telling him the uninsured motorist coverage did not cover all of the occupants of his automobile.

Plaintiffs filed suggestions in opposition to the defendant’s motion for summary judgment and in these suggestions for the first and only time claimed the restricted definition of insured in the uninsured motorist coverage in defendant’s policy violated the public policy of this State and further violated the provisions of § 379.203, RSMo 1969, V.A.M.S.

The court granted summary judgment in favor of the defendant. On this appeal plaintiffs contend, first, there were remaining and unresolved factual disputes as to the authenticity of the copy of the policy issued to Pettit and his wife submitted by the company with respect to the actual coverage provided within the uninsured motorist provision in such policy, and with respect to the credibility of defendant’s claim manager. Summary judgment is provided by Rule 74.04 which provides in part in 74.04(c): “[¡Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Such Rule in paragraph (e) also provides in part: “[wjhen a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

It is true as plaintiffs contend, that this court “as well as the trial court, must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered”. Scott v. Thornton, 484 S.W.2d 312 (Mo.1972).

Here the only question is whether or not the plaintiffs have, by affidavits or as otherwise provided in Rule 74.04, presented specific facts to show there is a genuine issue for trial. It is apparent they have not. The only issue tendered by plaintiffs’ petition was the issuance of an insurance policy by the defendant which would afford uninsured motorist coverage to the plaintiff. The defendant came forward with a copy of the insurance policy which it had issued, and by admissions made by the plaintiffs tendered proof to the court the plaintiff did not fall within the definition of the term insured as used in the policy in the uninsured motorist coverage. The plaintiffs could not produce a copy of the policy issued to them and for that reason could not show the existence of any policy different from the one presented by defendant. The closest the plaintiffs came to controverting the policy presented by defendant, or any other matter, was the affidavit of Pettit in which he stated it was his “understanding” the policy provided coverage for the occupants of his car and that he did not recall anyone from the defendant company telling him the policy did not cover occupants of his automobile under the uninsured motorist coverage.

These statements are hardly facts which would show a genuine issue of material fact. At best, these are surmises and guesses which will not substitute for fact. As stated in Renieri v. Scanlon, 254 F.Supp. 469 (D.C.S.D.N.Y.1966):

“The opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicious.”

The material fact plaintiffs were required to show was in dispute which would require a trial was the issuance by defendant of a policy which extended coverage to plaintiff Jane Waltz under the uninsured motorist provisions of the policy. It is manifest from the record the plaintiffs could not produce a copy of the policy. The defendant company produced a copy of the policy which its claim manager stated was not only a copy of the policy issued to Pettit, but was the only form of policy, in respect to the uninsured motorist coverage, which the defendant company issued during the time in question. By failing to controvert the existence of the policy as produced by the defendant company by affidavit or as otherwise permitted, the plaintiffs have failed to raise a genuine issue as to the material fact of plaintiff being covered by defendant’s policy. Beyond the existence of the policy which the defendant proved, there is no question the plaintiff and her husband do not come within the coverage afforded by such policy. There was thus no genuine issue of fact with respect to either the coverage afforded or the fact that the plaintiffs were beyond the perimeter of the coverage provided to Pettit. Plaintiffs, therefore, failed to show the existence of any material issue of fact with reference to the authenticity of the policy, its coverage, or the credibility of defendant’s claim manager.

The rule is stated in Hurwitz v. Kohm, 516 S.W.2d 33, 36[6, 7] (Mo.App.1974): “[a]nd when facts are stated in affidavits and exhibits in support of a motion and there are no verified denials, the facts so stated are admitted for the purpose of summary judgment”. Since plaintiffs did not file any verified denial of the issuance of the policy or its provisions, the policy as produced by defendant must be accepted as true. In this situation the court correctly granted the defendant’s motion for summary judgment.

In plaintiffs’ reply suggestions filed with the trial court in opposition to the motion for summary judgment, plaintiffs assert the definition of insured as contained in the uninsured motorist coverage violates § 379.203, RSMo 1969. It will be assumed, without deciding, that the question of law presented in this manner preserves the point for review.

Plaintiffs state that the definition of insured with respect to the insurance coverage contained in defendant’s policy for bodily injury liability and for property damage liability “includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either”. As noted above, the definition of insured with respect to the uninsured motorist coverage was restricted to the named insured, the spouse of such insured, and the relatives of either while residents of the same household.

Plaintiffs contend the definition of insured under § 379.203 must be the same with respect to the uninsured motorist coverage as it is under the coverage for bodily injury and property damage liability. Plaintiffs then urge that since the definition of insured in the uninsured motorist coverage does not include all persons using the automobile with permission, the limited coverage therein violates the statute. The result of this argument would be to broaden the coverage of the uninsured motorist provision to include anyone using the automobile with permission.

Applied to the facts of this case, plaintiffs urge that the plaintiff was “using” the automobile belonging to Pettit and, therefore, was covered under the bodily injury and property damage liability, therefore, plaintiff must be afforded coverage under the uninsured motorist coverage.

Adverting to plaintiff’s petition, it was simply alleged that plaintiff Jane Waltz was' a passenger in an automobile which was struck by an uninsured motorist. There is no allegation of any use made of the automobile by plaintiff other than the fact she was riding in it as a passenger.

Assuming without deciding that plaintiffs’ argument is correct, the difficulty with plaintiffs’ position is that plaintiff would still not be afforded coverage under the liability portion of the policy because she was not using the automobile within the meaning ascribed to that term under the liability section.

It was held in Woodrich Construction Co. v. Indemnity Ins. Co., 89 N.W.2d 412, 418[2, 3] (Minn.1958): “[m]any decisions have in effect recognized use as going beyond the narrow meaning of the direct mechanical operation performed by the driver and as encompassing the broader concept of employing or putting the vehicle into one’s service by an act which assumes at any time — with the consent of the owner or his agent — the supervisory control or guidance of its movements”. See also 8 Blashfield Automobile Law and Practice ¶ 317.1, page 2.

Thus to be covered under the liability portion of the policy, plaintiff was required to have or exercise some supervisory control over the automobile in which she was riding, and to be more than a passenger who was simply occupying the automobile. This can be very easily demonstrated by posing the question in reverse, viz, could the uninsured motorist state a cause of action against the plaintiff on the basis of the plaintiff’s allegation that she was only a passenger in the automobile? The answer is readily apparent that in this situation there could be nothing with which liability could be fastened on the plaintiff. It would require some form of control over the operation of the automobile on the part of the plaintiff, or some active negligence on her part to establish her liability. That being true, plaintiff, in her capacity as merely a passenger, was not included within the definition of insured under the liability section of the policy. Since plaintiff was not covered under the liability coverage, it could not possibly matter to the plaintiff whether or not the uninsured motorist coverage was as broad as the liability coverage. In short, even if it were said the uninsured motorist coverage must be as broad as the liability coverage, plaintiff would still not be insured under the liability coverage and, therefore, would not be covered under the uninsured motorist coverage.

It should be made clear the question of whether or not the uninsured motorist coverage must be as broad as the liability coverage is not being decided herein. What is decided, is that even if such were the holding, plaintiff would not be covered and, therefore, would not be entitled to recover from the defendant company under the facts alleged in the petition. That being the case, plaintiffs’ contention concerning the coverage differential in this case does not present any question of law which would defeat the right of defendant to have summary judgment.

The judgment is affirmed.

All concur.