*1 Plaintiff-Respondent, MOORE, Harve RAILWAY
ST. LOUIS SOUTHWESTERN COMPANY, corporation, Defendant- Appellant.
No. 7511. Appeals.
Springfield Court
Missouri. 6, 1957.
Feb. *2 upon in the right railroad
vicinity the lands of poisoner a weed cause said weed did *3 poison prem- wrongfully the said to invade plaintiff destroy ises of damage and and large part crop; a of his said cotton permit negligently defendant did and poison spread cause said weed to over the crop plaintiff spraying so aforesaid right its way wind was so when the blowing poison as to float cause said to plaintiff’s crop onto of cotton did crop greatly damage destroy his said of cotton.” general Defendant’s answer a de- nial. plaintiff’s theory
It is damage crop to his cotton was the of defend- result negligence ant’s spraying right-of- its during high poisoning with weed a wind, spray which carried the and material crop. plaintiff’s into and over was, any, damage, defense that whatever if plaintiff crop, suffered to due weather conditions and 1954, and, damage season of not to caused spraying right-of-way. defendant in its Kennett, Jones, & & Blanton Jones appellant In our will refer Blanton, Sikeston, appellant. for respondent plaintiff, as defendant and McHaney McHaney, McHaney, & Hal IT. positions occupied in lower court. McHaney, Billings, Flake L. William H. assigns first as error ac- Defendant Kennett, respondent. in overruling tion of the trial its court directed motion for verdict at the close McDOWELL, Presiding Judge. plaintiff’s case and at close of all appeal judg- This is from a verdict testimony. It contends that evi- ment of the Dunklin Circuit Court of uncertainty as dence discloses to the cause County, Missouri, in favor damage, any, cotton and defendant, against Southwestern Louis St. is no evidence there substantial Railway Company, corporation, a sum any alleged damage to show cot- $1,216.50damages or, spraying; due to how much ton was by negligence its defendant any, degree reasonable damage, if right-of-way 6”. with “Herbicidal Oil No. certainty, due spraying by “ defendant. * * * petition alleged: that on days August, the 18th and 19th a cause is jury Where tried * * * jury’s bound findings court is “ * * * facts, is substantial acting the defendant there and of through agents, employees support the verdict. Pettit v. servants United Co., Mo.App., Insurance vegetation did the weeds and Life- along Benefit Machens, evidence, arbor, 857, 862; grape mentioned S.W.2d Machens v. 734; plain- are located Mo.Sup., in the southeast corner of White Barkovitz, blacktop highway forming tiff’s land on a Mo.App., 254 S.W.2d boundary; south street gravel that a Only complete where a absence there is extends from near the corner of southeast probative support conclu- facts to the 80 acres to and crosses defendant’s appear. sion error reached does reversible town, right-of-way on the east side of the evidentiary basis But where there is an depot; about block east of verdict, jury’s for the is free gravel Leachville lies west Junction are discard or facts disbelieve whatever intersection, three-fourths of a mile. about *4 inconsistent with its conclusion. Winters junction At this one main branch of de- Louis, v. Terminal Ass’n 363 Mo. R. of St. goes fendant’s tracks in a direc- southwest 380, 384; 252 St. S.W.2d West goes tion to Leachville and a main branch Co., Mo.Sup., Railway Louis-San Francisco in a Paragould. northwest direction to 295 48. S.W.2d dispute There is that between hours no The law that last cited states the case o’clock, p. of August 6:0O and 7:00 onm. assigns where as error the defendant 18th, sprayed right-of-way defendant its refusal for de- court’s direct a verdict to coming up from stopping the east to fendant, Supreme considering in as- Court junction gravel at the of road or street favor- signment would the evidence state right-of-way, its about a block east disregard defendant’s able to depot town; part of the east that evidence, plaintiff’s case. unless it added to spray used was a “Herbicidal oil No. v. St. Louis Public Service Williamson 6”, Company. manufactured Lion Oil Co., 363 Mo. 252 295. propor- The oil was mixed with water in gallons tion one and one-fourth one defendant, The law is that railroad oil, gallon emulsifier, and, and an was company, legal right bene had the to use applied right-of-way through spray- on the sprays right- ficial weeds on its eliminate ing gallons nozzles rate at the of 160 manner, of-way, if used a reasonable per pounds pressure. oil mile under 60 preventative be used measures cannot spray used Defendant a car followed a impunity; with absolute due care must be car of chemicals and a car of water. prevent spray drift exercised nozzles attached to were the booms on the crops damaging ing on and of others. spray front of the car. The booms that words, duty defendant owed a other cross the center of the track over the cross- plaintiff, spraying right-of-way, while stationary. ties are Those on each side spray using such at a time when to avoid movable, up are or back. The the track blowing was an extent that the wind pumped through water and chemicals are carry spray plaintiff’s it would over hoses a Ford series of motor and mixed quantities injure crop in such pressure through and forced under Burke, Faire the same. along nozzles located booms. The the track booms the center of are evidence, rail. The stated most 14 inches above the other booms favorable to dump straight and if the plaintiff, go that defendant’s railroad out above the shows height elevation the running ground from southeast to northwest above the Hornersville, vary with through height Dunklin would passes ground Missouri; plaintiff’s the toe of the shoulder of County, 80 acres berm at the en- that land, question which the is admitted that the track on bankment. It directly side of lies on the east the town north elevation higher ground than the right-of-way, less than 12 feet one- 10 or level of defendants mile; at Leachville higher 2 feet buildings of a that the farm eighth Junction. hour, per between 15 some plaintiff. and 25 miles testified 23 witnesses Some admittedly, per hour; miles uncontradicted. Most wind was had blowing harder than it substance only the We will state through the rain- day at the time of the testimony. when It shows storm and defendant’s is that in Hom- junction gravel train reached m., train was some 16 miles from Leachville p. 7:00 o’clock ersville, 6:00 and between up at the time of the storm. fogging spray was 18th, August on Junction track; witness one both sides undisputed right-of-way It That high. feet from 10 to 12 stated gravel junction from the on the east side after minutes S spray continued town, a distance of some three- at the junction; stopped at the engine fourths a mile to Leachville Junction blowing wind was time of the sprayed. burned off land; toward from the south an- strong”, and “pretty one witness said testimony, many Plaintiff’s wit- per miles 20 and 30 “between other said nesses, they was to the had ob- effect Pierce, who Witnesses, Stone hour”. prior served to the date *5 street gravel adjoining lots on lived on of spraying August on the 18th and 19th of right-of- and the plaintiff’s farm between prior rainstorm; that and to the wind and where from feet north way, 200 to 250 some good growing the cotton in condition was 250 spraying, some stopped the train leaves; green, and both bolls that these and corner, tes- yards plaintiff’s southeast from many by plaintiff, were called in witnesses spray was so from the that the odor tified them, days of all the after two their homes. go into they had to strong September 8th, spraying and found until o’clock 8:00 or 9:00 that about Stone said top the leaves and bolls in the stalks plaintiff’s evening, he went to of the same dying; “crimped were one witness said turkeys; while there that get some home to up”; all generally that this condition was strong, odor, not so same but he smelled cotton, except just over the 62 acres spray. from the home as smelled at buildings, grape north of fences and corner; arbor in the southeast cot- that the shows that be- testimony further ton for about 10 or rows out from these m., a. and hours of 7:30 8:00 tween the injured, obstructions green. was not but spray train start- 19th, defendant’s August testimony of the witnesses most on its Leachville spraying at ed Junction job was that the cotton looked like a bad Leachville; that southwest Main line defoliation; they had never ob- that a farmer Heathington, witness that time at cotton which was like served affected this. within 10 or disking rows cotton was who opinion They gave their it was as that it that right-of-way, testified feet of dry rain, not caused from weather or up high spray fogging was stated it was from had some substance that strong was a wind there that and boxcar They in from floated testified south. southwest toward south or blowing from dying up drying and leaves bolls train afternoon the field. plaintiff’s stalks; top that some leaves and sometime up from Leachville backed partly partly green; killed and were p. m., o’clock start- and 6:30 5:00 between spots. burned there were main right-of-way on its spraying its ed Paragould. September 8th, Photographs, Some taken on northwest running line cotton were offered in evidence just plaintiff’s it was before the witnesses pointed from them witnesses out the was about 15 and some said and it sundown bolls and testified leaves that the wind rainstorm dead before minutes side; was worse on the south injured vicinity. think the evidence We struck general was condition all over blowing undisputed that the wind 19th, field. some witnesses stated on the hard barn, immediately planted grape 62 feet back of the is admitted It buildings; arbor and noticed small that he extends cotton, acres acres; sycamore right-of- a tree near defendant’s the 80 on boundary south back north way Hornersville, where the 52 acres near caused May that on 1st a frost 18th, stopped train had leaves on the and the was done replanted, which the cotton to be on north May. the south side were dead and on the It 10th 12th of between the side, green. pending also that there are now admitted vicinity living lawsuits farmers Scott, County Agricultural H. Dunklin J. Hornersville, along defend- and near Agent, plaintiff’s testified he cot- examined spraying right-of-way ant’s where that, opinion, ton and in his the condition done, are witnesses. many of them foreign was caused some substance days after They testified that some two brought deposited through the air and wilt and began their cotton the cotton. defoliated; die and had been looked like it good green Brown, Faculty that the cotton was Norman member they prior spraying; condition Agricultural Department of the Uni- dy- it versity Missouri, examined and was testified that in his own; just ing like damage their by material, him, stalks was worse on the south side unknown right- the cotton which was not near the brought general wind from the direc- of-way injured. was not tion of the south. Heathington gathered testified that he Murphy, Crop Specialist William Field J. *6 leaves, some in- stems and his University Missouri, bolls from the testified: jured cotton and bull nettles some “Q. your opinion What in caused sprayed right-of-way;
had been on the damage you observed samples that he sent some of these to Dr. occasion, Murphy? field on that Mr. Magill, Chemist, Cape A. at Girardeau. C. Well, opinion A. in my damage field, caused in high there is a de- Magill, Chemistry, Dr. a Professor of gree probability by it was caused Hornersville, testified he that visited at the some material that landed on cot- plaintiff, 8th, instance of on October and ex- plants.” ton plaintiff’s others; amined cotton and that of got samples leaves, that he of the stems and He testified quite there was not as much plaintiff’s bolls from cotton and from the damage plants on the north side of the Heathington Jaco; George fields on the south. sample that he received a of bull nettles plaintiff damages, As to testified that he through the mail. He stated he made a acquainted with the fair and reasonable plant chemical examination these mate- 18th, August market value his cotton on sample rials of herbicidal oil prior spraying, and, opin- in his that by used defendant. He testified that he ion, crop day, his cotton on that based sole- oil found traces of on the leaves and ly upon its then condition was of the value plaintiff’s stems taken from cotton and $13,764; that knew the fair and rea- and, the other cotton as nearly as he sonable market value of this after determine, could oil he found was spraying August occurred on 18th same as the herbicidal oil No. 6. He opinion, $11,331.68. in his its value was stated his was based on test for stated no He additional work was needed plaintiff’s He gravity. stated cotton looked ,to complete crop. He gave this testi- defoliated; like it had that mony: up; turned brown and had leaves dried Now, plain- “Q. then, this condition that existed over how you do esti- except approximately your tiff’s mate cotton values on a certain by defendant, plant, applied living if to a you estimate jury how day, tell the plant would kill He breathes have it. stated Well, you would A. that? just what carbon dioxide animals average of breathe your it from estimate oxygen, you? they through and that breathe it doing, wouldn’t have been you leaves, soil; if through that ques- answering are “Q. You anything opening done to over coat Well, say? A. tion, you what is that pores get dioxide can’t so carbon you what would figure you have to leaves, into the it This will suffocate them. you did make. made what by Specialists was corroborated offered A. defendant. I years? other “Q. on Based I make. what did know It is contended defendant that the evi- uncertainty dence right? discloses as to the cause years, that “Q. other any, if damage, cotton and it on some- have to base You would A. that there is no substantial evidence to show thing. damage alleged spraying. you have on “Q. right. Did All With agree. this contention we cannot planting a stand of good your second There is substantial evidence offered Yes, sir. A. cotton? spray used, oil will in- farmer, you, as a “Q. I ask will jure destroy plant the cotton or leaf it ways a farmer estimates one of the comes in contact Magill with them. Dr. good he has a cotton, assuming that his carrying capacity testified stand, cot- count bolls particles wind and that of oil will and stalks, would be rea- bolls that ton can be carried the wind. There sub- your sonably judgment ma- sure stantial evidence that at the time of ture, you esti- one isn’t that strong blowing there was a wind you estimating, crop that are mate the plaintiff’s land; in the direction of you some have done rather than what odor detected on the You could estimate years? A. other corner southeast cotton field quicker it would be a way, it *7 and when the cotton was observed it.” just look at days later begun some two it had to wither up dry and and became worse time good could tell The stated he witness passed. analysis A chemical of the cotton by thought and that he from bad cotton leaves and stems disclosed oil similar to the pretty get could at the cotton he looking by spray. in its oil used defendant It was When asked he close to its value. how expert opinion of witnesses in- that the put he on his the values cotton reached The jury was oil. evidence right, “All crop, gave he this answer: sir. injured the cotton discloses on the pounds 600 before at figured I acre more than and north south side $13,764.00. cents, After I at 36 vicinity only cotton of the rail- per pounds cents, lint 449 acre at 36 made injured protected and the cotton road was seed, for rebate on the a bale $5.00 grape in- by buildings arbor was not be 62 which would times acres $166.64 jured. conclusively Plaintiff’s $11,331.68.” would be crop in his cotton in- shows that 1954 was hot, error, this alleged dry For season and jured decision we the rain 19th; unnecessary occurring is all on August think it to set out and windstorm production testimony touching damaged cotton decreased. cotton. testify oil, Magill they after witness testified Dr. did such had ob- as Witness injured dry bolls spray, used defendant weather killed the served they by poison. had never seen kind suffocation not He and rain sample oil, had injury they observed testified that the furnished 402 proximate injury cause an all of the even crop. From sup- though it proximate evidence to is not sole was substantial find there * * * jury that (See cause
port findings thereof.’ cases spray- cited.) Boyd damaged as a result of v. Terminal Railroad cotton was Louis, Ass’n right-of-way. Mo.Sup., of St. 289 S.W. ing of defendant’s 2d 33. Servicing Property v. Gaines In 173, 169, proof Company, Mo.Sup., upon plain The burden of 276 is prove tiff to negligence charged. law It is is stated: enough not in to show an accident and an “ * * * rule is ‘that general jury. The negligence mere concurrence of negli- and his negligent is a defendant injury does not make defendant liable. another, that of gence combines with There must be a direct connection between independent, inter- or with other negligent injury, act and the and the cause, liable, although his he vening negligence proximate must be the cause of negligence was not the sole negligence injury. Warner v. Louis & M. R. St. cause, and al- proximate or the sole Co., R. 125, 67, 69; 178 Mo. 77 S.W. Wil without though negligence, Thompson, Mo.App., liams v. 166 S.W.2d cause, intervening independent, other ; 785, 27, Damages p. 786 25 493. § C.J.S. produced injury.’ would not City Light Electric Kansas Harrison v. shown must be rea Co., 606, 951, 956, 93 S.W. 7 sonably certain to injury. result from the 293; L.R.A.,N.S., Gray Kurn, Metropolitan Co., Ry. Waddell v. St. 558, 566(9); Mo. Mo.App. 680, 88 S.W. 767. 729, Negligence, Sec. Am.Jur. Speculative, ‘ contingent merely or * * * “The rule further is that probable results are not a element initial act or omission is one from damages. probable natural, which harm consequence foreseeable then Reynolds Metropolitan Ry. St. original act or makes performs who Co., Mo.App. 282, 116 S.W. liable, notwith- original omission is stated: law causes, standing the fact that other “ * * * ‘If may have re- agencies conditions intervene be- from one of sulted two causes for one negligence and tween his the ultimate ” * * * the other defendant is (See cited.) result.’ cases liable, must show with rea- St. Louis In Caldwell v. Public Serv- *8 certainty sonable the cause for Company, Mo.Sup., 288, 275 ice S.W.2d produced the defendant is liable 293, this law stated: result, and, if the evidence leaves “ * * * It is not the law that de- conjecture, it to must fail negligence Beck’s fendant must have Young in his action.’ [Missouri proximate plain- been the sole cause of Co., Railway Mo.App. 636, 113 Pac.] injury in order 767, tiff’s for that defend- and 88 S.W. cases cited. ‘When A be liable therefor. defend- equally ant to evidence tends to sustain injury, an if guilty liable for he is ant is either of two propositions, inconsistent is a negligence contributing them can neither of be said to be es- * * cause, concurring but legitimate proof.’ not the or sole tablished cause, if it with other .combines causes If he has adduced facts and circum- contributory negligence plain- (than stances which a reasonable in- produce it. tiff) stated, to ‘Otherwise ference arises one or more of the is liable his negligence specified negligence defendant acts of part
403 Burke, of his Mo. cause In Faire v. 363 direct defendant was the 562, 289, 294, burden law is stated his this discharged has injury, he as jury. damages growing measure to go to and was entitled to [*] [*] [*] ft crops: “The damages measure of for 28, 493, p. Damages In 25 § C.J.S. partial to or destruction of a is stated:
law crop is crop’s the difference between the value immediately before and its value recovery against “The rule immediately injury; after the and has damages generally of uncertain value maturity is determined ‘the uncertainty directed against been value probable but for uncertainty cause rather than destruction injury, or a deduc- words, In other measure or extent. tion therefrom of the value of the labor against contingent the rule uncertain which, and the expense subsequent to applies only damages damages to such its injury or destruction and are not the results certain it, required mature, would have been wrong, as are certain for, care crop.’ Happy and market the results but uncertain in amount. 1156, Kenton, 362 Mo. 698, 704-705. many cases, although “In substan- “ * * * Yet, plaintiff ‘will be established, not tial are their recovery denied a substantial he has is, susceptible amount so far as produced the best evidence available admeasurement, pecuniary either en- it sufficient to afford a reason- tirely extremely uncertain or difficult estimating able basis for loss.’ plain- ascertainment; in such cases 23, Am.Jur., Damages, p. Sec. 415. See recovery, right all tiff is not denied Damages p. 493. This is § the court or the amount is fixed C.J.S. City the Missouri rule. of Kennett v. of a the exercise sound Co., Katz Const. 273 Mo. 202 S.W. under instructions discretion 558, 562. And Brunk see v. Hamilton- court.” from the Co., Brown Shoe 66 S.W. 2d 910.” was evidence in There substantial support jury’s finding case instant Following the law as declared in damaged and that plaintiff’s cotton 28, p. Damages 493 that the rule § C.J.S. proximate cause of the dam direct against recovery damages gen of uncertain negligence defendant age erally against uncertainty has directed right-of-way when the wind uncertainty toas cause rather than as to enough drift the strong into extent, we find against defend measure field under the authorities However, we are contention. ant on this out, find there is no merit set herein evidence is sufficient to saying error that allegation of the evi under proving damages law comply with the uncertainty as to the cause discloses dence *9 law, crops. think the set We unmatured plaintiff’scotton and that there damage to opinion, that in where substantial this out that alleged evidence the no substantial is amount, established the so damages are to spraying. not due damage was susceptible pecuniary admeasure far as entirely ment, uncertain part alleged is, is or ex of this either last error tremely ascertaining, will difficult substantial wasn’t evidence to there that recovery. The any, amount will be damage, any prevent much how show by under instruction degree certainty fixed that was reasonable spraying. the court. by the defendant’s caused II, on circumstances, numbered land of error similar under like in allegation Under erred court 1954. that the trial defendant contends 3, first, because giving instruction No. The rule to damages unmatured damaged crop alleged have been crops poisonous by caused been has unmatured; reasonable that it has no by Supreme declared Court of this state. value; measure that the correct market Burke, In supra, Faire v. it will be noted the un- damages probable yield opinion, 252 S.W.2d page on that price for crop, together with matured stated the court measure of crop, said plaintiff have which could sold partial crop destruction of a harvesting and maturing, the cost less “is the difference between crop’s value it; no sub- marketing plaintiff that offered immediately before and its immedi- value yield probable evidence as to the stantial ately injury; after the and that value expense cotton nor the cost of the by determined maturity ‘the value of the and market it.
thereafter
harvest
probable crop but for
or in-
destruction
jury,
a deduction
therefrom
agree with defendant
We
value of the
which,
labor and
expense
offered
no
evidence
there was
substantial
subsequent to
or destruction and
probable yield
the cotton
showing the
it,
but for
would have
required
been
crop
year
what
nor
”
mature,
for,
care
crop.’
market the
likewise,
We,
think
have
would
sold for.
not the best
the evidence offered was
In the instant
plaintiff
case the
produced
plaintiff
could have
evidence
wholly failed to
comply
offer evidence to
is entire
record
to show
facts.
with the rule as thus
declared
Su
our
ly
value
silent
market
preme Court.
point
regarding the
further
out
1954. We
knowledge
that it
common
This
Happy Kenton,
also cites
hand-picked
more valuable than
cotton is
704-705.
machine-picked
snapped cotton.
cotton or
this case
seeking
to recover
evidence at all
There was no
damages for the
loss of a
reasonably determined
jury could have
overflow from a dam and the court made
this
without
market value of
this
of law
page
statement
on
Likewise,
speculating.
there
guessing
you find
“If
that on account of the
what this
no evidence to establish
land
of said dam crops grown
erection
reasonably
produced under
have
would
any part
plain-
of said land which this
year
conditions of the
1954. Ad
seasonal
rented during
any
tiff had
or in
accompanied
mittedly,
drought
there was a
years
inclusive,
any,
1944-1949
were
winds,
together with
rain and
hot
damaged,
then the measure of dam-
which,
windstorm,
testimony
dis
crops
injured
ages for
thus
is the
closes,
injured
to some extent
this cotton
between the
difference
value
n crop. There was no
offered to
crops
could ordinarily
and rea-
lands,
similar
under like
what
condi
show
sonably
raised on
been
land
vicinity,
produced,
in this
would have
tions
if said
similar seasons
dam had not
himself, merely
but,
guesses with
plaintiff,
constructed, and the
value
offering
basis for his estimate that
out
actually
crops
by plaintiff.”
raised
produced
acres of cotton would have
per
lint cotton
pounds of
acre. He
It was contended that the above instruc-
made this estimate
looking
at
stated
improperly stated the
tion
measure of dam-
think
best evidence
show
it. We
court
and the
made
ages,
this statement:
been to
show what other farm
would
*10
“
*
* *
in
community,
While
&
the
where there was
no
ers
Jones
Jones
Club,
here,
113,
Lake
spraying,
produced
Cooley
Mo.App.
from
as
injury
evidence, only
82, 83,
witness,
Heath-
the court
one other
98 S.W.
ington,
crop
injury-
damaged
testified
the
was
damages for
of
measure
that the
pounds
differ-
of
acre.
does
crop is ‘The
cotton to the
He
growing
a
done to
explain
not
crop produced
pounds
whether meant 200
the
of
ence
value
pro-
of lint
ordinarily
pounds
cotton or
of
seed cotton
was
that which
seasons’,
and he stated
he didn’t know
land
like
duced
the
damage
actually
no
spray-
can be
the
nevertheless, we think there
n questionbut that
ing.
dam-
measure of
the
aof
injury to or destruction
age for
Defendant
much authority
cites
is,
of
crop
in the case
annual
growing
states, but,
Supreme
other
since our
Court
crop
value
the
the
of
total destruction:
passed directly
has
upon
question
the
destruction;
place of
the
(cid:127)at
time
declared the
damages
method
partial
and as to
or
destruction:
ascertained,
should -be
find
we
it unneces-
the
the
of
between
value
the difference
sary
go
into these cases.
crop immediately
immedi-
before and
ately
(Citing
Allegation
much
injury.”
after
of
the
error numbered III com-
authority.)
plains
court de-
admitting,
And then the
of the court’s
over
ob-
the
jection
defendant, incompetent
clared the law thus:
of
evidence
damages.
as
measure of
“However,
the value of
to determine
crop at
time and
a
annual
We think
is merit
there
this
im-
place
or
of destruction
its value
witness,
permitted
contention. The court
immediately
mediately
aft-
before and
Heathington,
damage
as to
guess
approved
any injury,
er
have
a
we
plaintiff’s crop
when he stated he did
the amount of
method to ascertain
province
know. This
invaded the
This, by
damages.
a consideration
jury and should
ruled
We
have been
out.
value of
showing maturity
pass upon whether or not
own
need not
probable
for
but
destruction
testify
the cotton could
as to
value
er of
injury,
by a
there-
or
deduction
crop, yet,
rulings
his
under the
value of the labor and
from of the
Court,
Supreme
this
not the best evi
which, subsequent
in-
expense
proof
damages.
of the
dence
it,
or
for
jury
destruction
under the evidence offered
care
ing
statement of
There
would
tion so
[*]
fendant and
[*]
In
for,
[*]
may
I!
damages
would be
and market
doing
be
thereby make an instruc-
the method of ascertain-
instant
instances in which
reversibly
required
prejudicial to a de-
case
crop.
we think
measure
erroneous.
plaintiff, in
mature,
*
* *
Having held that
defendant,
dence
similar
error
We
Allegation
think that under a
trial
by limiting the
holdings
think this cause
undisposed of lawsuits.
court can correct matters of evi-
retrial.
plaintiff’s witnesses who had
error
plaintiff made a
cross-examination, by
No.
court
must
IV., complains
consideration
be
case
retried.
reversibly
3 was made
erro
struction No.
Munzlinger, Mo.Sup.,
Kunz
permitted
that it
reason
neous
536, 538, the law is stated:
upon
jury to base verdict
“
* *
*
witness,
of a
The interest
determining
not the best evidence in
otherwise, may
shown as
be
crops
party
under the
value of unmatured
491.010,-
credibility.
Sec.
affecting
Supreme
rule established
Court.
RS
Sec.
Mo. RSA.
Mo.
Clearly,
did not follow the evi
respect
verdict,
arriving
interest
a witness
plaintiff in
‘The
at its
dence
is never
issue on
irrelevant’.
trial
far
we can ascertain from
so
*11
Co.,
Respondent
Arnold
348 Mo.
v. Alton R.
further
contends that
opinion
lati-
‘Considerable
should be modified
as to limit the
so
permissible
tude is
cross-examina-
retrial
only.
to the
issue of
tion in
inter-
probing a witness as
support
Kuhn,
To
this contention Hufft v.
bias,
est or
but the extent
to which
Mo.Sup.,
552, 555,
277 S.W.2d
Section
may
largely
go
examination
rests
512.160 RSMo
cited.
V.A.M.S. are
in the discretion of
court.’ Holden
Berberich,
Following
by
the law as declared
791, 793,
show interest. RUARK, JJ., STONE and concur. RUARK, STONE JJ., concur. Rehearing On Motion for and Transfer. McDOWELL, Presiding Judge.
Respondent’s motion for rehearing or in
alternative
to transfer
the above cause
Supreme
Court is by this court de-
Saraphin VOGRIN, Appellant,
nied.
complains
The motion
this court
Inc.,
AMERICA,
FORUM CAFETERIAS OF
holding
erred
method
Respondent.
showing damages
crops
immature
No. 22477.
not followed. Since our
has been
down,
City
Ap-
handed
the Kansas
Court of
City
Appeals.
Kansas
Court of
directly
peals passed
upon
question
Missouri.
Beaty
Cooperative,
v. N.
Electric
W.
Power
April 8, 1957.
Mo.App.,
case, followed. must be