author: STORCKMAN, Judge.

text:
    In re James L. McMULLIN, Petitioner.
    No. 49700.
    Supreme Court of Missouri, En Banc.
    June 4, 1963.
    J. K. Owens, Kansas City, for petitioner.
    Douglas Stripp, Kansas City, for Advisory Committee of the Missouri Bar.
   STORCKMAN, Judge.

This is an original proceeding to determine what disciplinary action should be taken against the petitioner, James L. Mc-Mullin, a duly licensed attorney at law practicing in Kansas City, Missouri.

On August 10, 1962, Mr. McMullin filed his petition in this court stating that on June IS, 1962, an information was filed against him in the District Court of the United States for the Western District of Missouri charging him in five counts with willful failure to file federal income tax returns for the five years from 1956 to 1960; that the offense charged was a misdemeanor under the statutes of the United States; that on July 17, 1962, he entered a plea of guilty to the first two counts of the information, and on July 29 was sentenced on these counts to three months’ imprisonment in the United States Medical Center in Springfield; that the other three counts of the information were dismissed. The petitioner voluntarily submitted himself to the jurisdiction of this court for the purpose of having the court judicially determine what, if any, disciplinary action should be taken against him.

The petitioner’s application was referred to the Advisory Committee of the Missouri Bar Administration for investigation and report. The Advisory Committee conducted hearings at which the petitioner appeared and testified. He was also given the opportunity to produce other witnesses. On March 1, 1963, the Advisory Committee filed its report and recommendation. The petitioner filed a response to the report of the Advisory Committee in which he agreed that the facts set out in the report of the Advisory Committee were true with minor exceptions which will be noted in the course of the opinion.

The supreme court has original jurisdiction of matters pertaining to the disciplining of members of the Bar and may suspend or disbar a member in a proper case. In re Foley, Mo., 364 S.W. 2d 1[1].

James L. McMullin, now 36 years of age, was born in Parma, New Madrid County, Missouri. He attended elementary school in New Madrid County and Saline and Dodge City, Kansas, and attended high school and graduated from Center High School in Kansas City. He attended the University of Kansas City and received an A.B. degree in English and an L.L.B. degree in Law in 1951. He was admitted to practice in Missouri on January 21, 1951. After completing his service in the Korean War, he began the practice of law in Kansas City and for three or four years was an associate in the office of William R. Ross, an attorney of admitted integrity. Thereafter he practiced by himself in Kansas City, renting office room in suites with other lawyers.

Mr. McMullin served in the United States Navy in World War II as a 3d Class , Petty Officer. In the Korean War he was commissioned as a 2d Lieutenant in the Marine Corps, then promoted to 1st Lieutenant and Captain and thereafter was a Major in the Marine Corps Reserve. For nine of the seventeen months that he was in Korea, he served in an artillery outfit and the rest of the time he was a prosecutor for the Government trying general court martial cases. He had eighteen years service in the Reserve. On September 8, 1962, while Mr. McMullin was confined at the U. S. Medical Center in Springfield, he was dropped from the rolls of the Marine Corps Reserve on order of the Secretary of the U. S. Navy. Dropping from the rolls effects complete severance of the individual concerned from the Naval service; no certificate of discharge is issued upon separation by dropping from the rolls. At the hearing held in this matter on November 29, 1962, Mr. McMullin testified that he held a Major’s commission in the Marine Corps Reserve. In his response to the Committee’s report, he states that he had no knowledge that he had been dropped from the Marine Corps Reserve when he testified at the hearing and was not so notified until sometime in December 1962.

Mr. McMullin was married in 1948, has a son 8 years of age, a daughter 6 years of age, and a wife, who is 34 years of age. He has been active in church work-in Kansas City and is a member of the-Board of Deacons of his church. He has-taught Sunday School classes at his church, for the past five years and still teaches a class. He and his wife are active and former officers in a group of young people in their church and he has been active in Boy Scout work.

On July 27, 1962, the Honorable Richard M. Duncan, Judge of the United States District Court for the Western District of Missouri, upon petitioner’s plea of guilty to Counts I and II, being his failure to make a federal income tax return for the years 1956 and 1957, sentenced him to serve a term of three months on each count, such sentences to run concurrently, in the United States Medical Center at Springfield, Missouri, to begin serving said three months sentence on August 5, 1962. He served said sentence with the exception of nine days given him for' good behavior while serving his sentence. At the time of sentencing the petitioner, Judge Dim-can made a statement of which the following is a part:

“Now gentlemen, the Court has before it the pre-sentence report, which has not revealed anything particularly that the Court did not already know. This young-man has practiced here and has devoted his practice exclusively to the criminal field. He has expressed a preference for that field. But I think he has violated,, not only from my observation, but from, the report that has come to me, the pre-sentence report, and things we must know,. I think he has probably violated the three-most important rules of a criminal lawyer. In the first place, a lawyer who represents criminals does not stand as high in the-community as some other members of the-profession. That is a matter of common knowledge, and for that reason when he-does represent criminals, he ought to be-well paid for it, better than the ordinary lawyer, to make up for that situation, if that is his chosen line of work. I do not believe that this Defendant did that.
"The second is that he ought never to liecome an associate of the criminals he represents, because when he does that he places himself pretty much on the same plane as those he represents. There is ■certainly nothing dishonorable about a man representing those people charged with crime, the law gives them that right, and the profession requires it in most instances, but to put himself on the same plane is not a good thing.
“I do not like to say this gentlemen, but it is a fact. It is a matter I feel I should say, that for a considerable period •of time there has been a feeling among ■a good many people, and among Courts as a matter of fact, that this Defendant’s ideas and conceptions of the practice of law have not been consistent with the high ideals of the great profession to which Tie belongs; that he, in a good many instances, has been guilty of acts and conduct with respect to his practice that have not been looked upon with favor by members of his own profession, and that is not a matter for this Court to be concerned with. I simply make that statement, and -unless he changes his entire conception of the duties and the responsibilities of a lawyer to himself, and to his profession and to the community, it is my opinion he should never again be permitted to practice before this Court, regardless of what Tiis future may be. It may be necessary to seek a livelihood in other fields.

Mr. McMullin readily assumed the blame for his income tax troubles. His explanation was that he did not have the money to pay his income taxes when the returns were due and, through the accountant who ■customarily prepared his returns, he obtained extensions of time for filing the returns. Photostatic copies of the extension for each year involved were attached to the report as exhibits. He testified that he believed that by obtaining extensions he would not be guilty of criminal violation although he knew that eventually he would have to pay the tax with interest. He further testified that the Internal Revenue Service had gone over his books and presented him with a statement showing his taxes to be about $6,000 for the five years.

Two previous complaints had been made against the petitioner on which the Advisory Committee held informal hearings in September 1960. Mr. McMullin was on a tour of duty with the United States Marine Corps Reserve when the witnesses were examined, but at a later date he testified before the Committee, gave his version of the occurrences, and was interrogated by members of the Committee. One complaint involved his retainer to secure a reduction in the sentence of a man who had pleaded guilty of charges of bank robbery and was sentenced by United States District Judge R. Jasper Smith to imprisonment for a term of twenty-five years. The defendant was represented by other counsel when he pleaded guilty and was sentenced. The convict’s wife employed McMullin and paid him a fee of $380 to undertake to get a reduction in sentence because the defendant had a previous good record and was the sole support of the wife and four children. The wife’s testimony at the informal hearing tended to show that McMullin had done nothing and had avoided numerous telephone calls. In his testimony later, the petitioner undertook to recount what he had done which included filing before Judge Smith a “MOTION TO REDUCE AND CORRECT EXCESSIVE SENTENCE”. A copy of the motion was introduced as an exhibit. The motion was overruled and McMullin considered an appeal to the U. S. Court of Appeals but before this was done Judge Smith, of the court’s own motion, amended the sentence so as to make the convict eligible for parole after five years, and no appeal was taken. The Committee suggested that Mc-Mullin get in touch with the convict’s wife and explain the situation to her. At the final hearing in this matter the petitioner reported that he had done so and had refunded to her a portion of the fee. This matter was apparently satisfactorily concluded.

The other complaint included at the informal hearing involved Mr. McMullin’s conduct in a criminal case pending in the Circuit Court of Jackson County which received considerable newspaper publicity due to the fact that two notorious persons were charged with attempting to kill a witness. The petitioner represented the defendants and took a brother of one of the defendants to a deposition hearing in the apparent attempt to mislead the prosecuting witness into identifying the wrong person. The presence of the imposter was discovered before the deposition began, but his presence was in violation of an order made by Judge Duvaul P. Strother who had specified the persons that could be in attendance at the taking of the depositions. The petitioner claimed that he read the order hurriedly and did not realize at the time that he was doing anything wrong in taking the defendant’s brother to the hearing. The Advisory Committee left it to McMullin to decide what amends, if any, he should make to Judge Strother. After appearing before the Committee, however, he withdrew from the defense of that case. No further hearings were held by the Committee on these two matters although they were still pending at the time of the petitioner’s conviction in the U. S. District Court. The transcript of these previous hearings were made a part of the record herein.' Judge Strother wrote a letter on behalf of the petitioner which is before us as an exhibit in this matter and which solicits leniency for Mr. McMullin and states, inter alia, that the petitioner “should not be punished further by having his license withdrawn”.

Petitioner’s counsel of record was otherwise engaged and did not appear at the hearing of this matter held on November 29, 1962. Mr. McMullin was the only witness and when questioned by Committee members regarding various “rumors” of improper associations and misconduct on his part he answered with apparent frankness and sometimes volunteered information beyond the scope of the interrogation. He stated that he practiced a lot of criminal law, tried a few divorce cases and did some probate work. One of the Committee members observed that McMullin was “obviously a bright young man” and, in the course of interrogation as to how he “got off on the wrong track”, developed that the petitioner after he had been in practice for a year or two felt that he needed trial experience and at his request the judges of the circuit court appointed him to defend indigent persons accused of crime. He was trying between 20 and 30 cases a year, some of which were given newspaper publicity. As a result of his victories more criminal cases came to him than civil and he took them. He represented “dozens” of prostitutes who were prosecuted in City Court under an ordinance which made a conviction almost impossible. These victories attracted other such cases. He denied having had sexual relations with any of these prostitutes or procuring others to do so, but admitted that on one occasion, at the request of two acquaintances, he had telephoned two pros'titutes for them. He further denied that he had any part in the criminal activities of his clients.

He admitted that he had gone in the -nighttime to taverns and restaurants frequented by persons he was representing in criminal cases; that his purpose in doing so was to collect fees or confer with clients; that he undertook to have them come to his office but it was more convenient for his clients to see him at the other places and he yielded to their insistence. In one or two instances he went to their homes. He testified that his association with “these underworld and criminal characters” was that of attorney and client; that seeing them at night might appear to be social, but it was not. His wife often accom- . panied him on these trips; sometimes she went in with him and at other times she sat in the car.

Mr. McMullin further testified that he had not practiced law since August 1, 1962, and since his release from the prison at Springfield he has been working as an adjustor for an insurance company. He does not intend to practice any more criminal law and has an opportunity to defend civil cases for insurance companies. His wife has also taken employment and his mother who lives with them takes care of the children.

Mr. McMullin filed with the Committee letters from four circuit judges in Jackson County, one municipal court judge, two magistrates, five members of the Bar, a Sunday School teacher, and the Pastor of his church. All of these letters indicate that his conduct and moral standing are good. Some of the letters urge leniency for him.

The report of the Advisory Committee states that: “After careful consideration of the record in this case, it is the unanimous opinion of the Advisory Committee that Petitioner has violated Section 4.47 of the Rules of this Court [42 V.A.M.S.] by having committed an offense against the laws of the United States of America and the State of Missouri and that such offense involves moral turpitude.” The recommendation of the Committee is “that James L. McMullin be disbarred from the practice of law in this state and that his name be stricken from the roll of attorneys in this state” or, in the alternative, “should this Court deem a suspension, rather than disbarment, adequate to protect the public interest, that any such suspension should be of indefinite duration with leave granted petitioner to apply for reinstatement after the expiration of a substantial period to be fixed by the Court upon a showing by petitioner that he is then a person of good moral character and fully qualified to be licensed as a member of the Bar of Missouri.”

As stated by this court in the case of In re Moon, Mo., 310 S.W.2d 935, 938[3]: “In cases of this nature, it is always a difficult problem to determine the extent to which an attorney should be disciplined. In 7 C.J.S. Attorney and Client § 38, p. 806 it is stated that ‘In arriving at the punishment to be imposed, precedents are of little aid, and each case must be largely governed by its particular facts, and the matter rests in the sound discretion of the court. The question is not what punishment may the offense warrant, but what does it require as a penalty to the offender, as a deterrent to others, and as an indication to laymen that the courts will maintain the ethics of the profession. Disbarment will be decreed only when the court is convinced of its necessity for the protection of the profession, the courts, and the public, and a removal from the bar should not be decreed where any punishment less severe, such as reprimand, temporary suspension, or fine, would accomplish the end desired.’ ”

We have concluded that the alternative recommendation of the Advisory Committee should be adopted; that is, the petitioner should be suspended indefinitely with leave to apply for reinstatement. See In re Foley, Mo., 364 S.W.2d 1; In re McLendon, Mo., 337 S.W.2d 56; In re Canzoneri, Mo., 334 S.W.2d 30; In re Landon, Mo., 319 S.W.2d 553, and In re Moon, Mo., 310 S.W.2d 935.

The petitioner has admittedly been convicted of a federal offense which, although a misdemeanor, involves moral turpitude. Other professional misconduct has not been proven although the conduct of his criminal practice was extremely indiscreet and inept. The defense of persons accused of crime is encouraged, but the conduct of a criminal practice in the manner that the petitioner apparently did is reprehensible and should be condemned. A lawyer who habitually associates with crime-charged clients in their haunts and homes exposes himself to the risk of becoming enmeshed in their criminal enterprises, or at least of being so considered in public opinion. It is wholly unnecessary to the proper practice of criminal law and brings both the lawyer and his profession into disrepute. Unless the petitioner in due course demonstrates that he has the will and the ability to avoid in the future the mistakes he has made in the past he may never become entitled to be reinstated in the practice of law.

It is ordered that the petitioner, James L. McMullin, be suspended indefinitely from the practice of law with leave to apply for reinstatement after the expiration of a period of three years from the date of the rendition of this opinion upon a showing that he is then a person of good moral character and fully qualified to be licensed as a member of the Bar of Missouri.

All concur.


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    Paul VANDAVEER, Appellant, v. REINHART AND DONOVAN CONSTRUCTION COMPANY and Traders and General Insurance Company, Respondents.
    No. 8173.
    Springfield Court of Appeals. Missouri.
    Aug. 13, 1963.

      Thurman, Nixon & Smith, Hillsboro, Roy W. McGhee, Jr., Piedmont, for appellant.
    Edgar S. Carroll, Kansas City, for respondents, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   STONE, Judge.

As the result of being thrown from a runaway truck and then being pinned thereunder when it overturned, Paul Vandaveer (hereinafter called the claimant), then forty-five years of age, suffered severe injuries in an accident on October 14, 1952, which arose out of and in the course of his employment by Reinhart and Donovan Construction Company (hereinafter called the employer). By its final award of June 6, 1957, the Industrial Commission of Missouri (hereinafter called the Commission) found that claimant had sustained permanent total disability, awarded him compensation at the then maximum rate of $30 per week for three hundred weeks and “thereafter a pension of $12.69 per week [that being 25% of claimant’s average weekly wage of $50.77] for life” [see Sec. 287.200, RSMo 1949, as amended Laws of 1951, p. 623], and ordered the employer and its insurer, Traders and General Insurance Company, to furnish claimant with such physical rehabilitation and medical care as reasonably might be required in the future. There was no appeal from the final award, and the employer and its insurer complied therewith until May 10, 1961, when they filed with the Commission their application for rehearing on the ground of a change in condition. V.A. M.S. Sec. 287.470. Finding that there had been such change in condition, the Commission handed down its award of March 16, 1962 (hereinafter referred to as the award on rehearing), directing that the benefits for permanent total disability payable under the final award of June 6, 1957, should “cease and abate as of December 13, 1961 [the date of the rehearing] * * * subject, however, to the right of [claimant] under the provisions of Section 287.470, RSMo 1959, to have the case reconsidered at some subsequent date.” From the award on rehearing, claimant appealed to the Circuit Court of Reynolds County; and, from the judgment of affirmance in the circuit court, claimant appeals to us.

The sole issue in this, as in all proceedings of this character under V.A. M.S. Sec. 287.470, was whether “there had been a substantial change in [claimant’s] condition” between the date of the final award and the date of rehearing (in this case between June 6,1957, and December 13, 1961). State ex rel. Sei v. Haid, 332 Mo. 1061, 1071, 61 S.W.2d 950, 954. Although on judicial review the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Commission reasonably could have made the findings and award under consideration (in which the sole issue as to change in condition was resolved against claimant), this does not mean that either court should substitute its own judgment on the evidence for that of the Commission ; but, on the contrary, a reviewing court may set aside the findings and award of the Commission only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. Hogue v. Wurdack, Mo., 316 S.W.2d 523, 526; Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344, 345(1); Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 83(5-7). Our statement of facts accords appropriate and required recognition to that basic principle. Heaton v. Ferrell, Mo.App., 325 S.W.2d 800, 802; Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306, 307; Davis v. McKinney, Mo.App., 303 S.W.2d 189, 190.

No appeal having been taken by the employer and insurer from the final award of June 6, 1957, in which the Commission found that claimant had sustained permanent total disability and awarded compensation therefor, that award became conclusive as to all matters adjudicated thereby, including the then nature and extent of claimant’s disability. Adkins v. Bramhall, Mo.App., 233 S.W.2d 36, 41 (3); Spradling v. Wackman Welded Ware Co., 239 Mo. App. 1195, 1198, 205 S.W.2d 290, 291(1); Winschel v. Stix, Baer & Fuller Dry Goods Co., Mo.App., 77 S.W.2d 488, 491(1). For that reason eschewing the useless task of laboriously detailing the voluminous evidence received by the Commission at hearings prior to June 6, 1957, a few brief observations concerning claimant’s injuries and the course of medical treatment will suffice for the purposes of this opinion.

Claimant’s principal injuries were (1) a central fracture dislocation of the right acetabulum with displacement of the head of the femur into the pelvis and an associated comminuted pelvic fracture, (2) a fractured left ankle, (3) a comminuted fracture of the upper end of the right humerus, and (4) perhaps a fractured fifth lumbar vertebra. Following the accident on October 14, 1952, claimant was hospitalized for forty-three days at Ironton, Missouri, under the care of Dr. R. E. Harland, a general practitioner. In August 1953 claimant was referred to Dr. Robert M. O’Brien, an orthopedic surgeon in St. Louis. Being of the opinion that claimant’s injured right shoulder and left ankle would improve with the passage of time, Dr. O’Brien then recommended no special treatment for those areas; but, the right hip fracture dislocation having so deformed the hip joint that the doctor anticipated that it would become worse rather than improve, he recommended “an operative arthrodesis or fusion of the right hip joint which would result in a stiff but painless right hip/’ In connection with that operation, claimant was hospitalized in St. Louis from November 30, 1953, to March 12, 1954, on which latter date he was discharged on crutches. Although the operation did not accomplish the intended result in that the hip joint did not fuse, Dr. O’Brien thought that claimant had “a fairly good function” considering the damage done to the hip. By November 1954, claimant reported that “his right hip pain was markedly improved” and that his left heel then bothered him more than his right hip. During another period of hospitalization in St. Louis from February 25 to March 21, 1955, a triple arthrodesis involving three fusions in the left foot and ankle was performed. At the last hearing before the final award of June 6, 1957, claimant told of his unsuccessful efforts to obtain employment and of his inability to work.

At the rehearing on December 13, 1961, it was shown that claimant had been employed as a “hospital attendant I” by the St. Louis State School and Hospital (hereinafter called the hospital), a state institution for mentally retarded and epileptics, continuously from October 26, 1959, to the date of rehearing. During that period of more than twenty-five months, claimant had missed fourteen days from work, only six of which had been prior to the filing of employer’s-insurer’s application for rehearing. His starting salary of $196 per month had, by the time of rehearing, been raised to $238 per month, which was in excess of his stipulated average earnings of approximately $220 per month at the time of accident. His regular work week consisted of five eight-hour days.

The hospital is a major state institution administered under the Division of Mental Diseases. There are nine patient buildings, each having “three dormitories.” Although witness Ball, the director of nurses, characterized the patients as “basically mentally retarded,” they also include “the very physically deformed, spastics, hydrocephalics, microcephalies, up to the almost normal.” In age, the patients range from “80 years old * * * all the way down.”

Employment at the hospital is “under the merit system.” Each applicant for the position of hospital attendant is given an oral interview and a written examination. The grades are sent to Jefferson City where acceptable applicants are placed on a register, from which the hospital fills all vacancies. The uncontradicted evidence upon rehearing was that claimant had been “regularly hired * * * as other employees there in the hospital.”

At the month-end prior to rehearing 28 male and 108 female hospital attendants were employed. Witness Ball pointed out that, as the categories of patients vary from building to building, so does the difficulty of the duties to be performed by the attendants. Generally speaking, those duties “consist of bathing and feeding and dressing the patients” and “light housekeeping duties * * * light sweeping and mopping, dish-washing, serving food and other duties delegated.” Witness Young, a supervisor, added “escorting patients to and from school or other places” and supervising children at play. And, when necessary to restrain, lift or carry a patient, attendants in such numbers as may be needed at the time perform those duties.

Each attendant works “in his own area” with “his own duties to perform.” However, each gets some help from patients— “part of their stay in the [hospital] is training and learning how to do different things,” and an attendant who finishes his own work may help another — -“it is only fair then to go and help the other fellow.” Each attendant is “rated” at the end of a six-month probationary period and annually thereafter. If the work of an attendant is unsatisfactory, the customary procedure is to notify the director of nurses, under whose general supervision attendants work; and, for unsatisfactory work, an attendant may be discharged.

Insisting that the- “average” hospital attendant could and did perform, but that he (claimant) could not and did not handle, “various heavy jobs” such as mopping floors or helping to restrain, lift or carry patients, claimant argues that he had not returned to “any employment” within the contemplation and meaning of those terms as used in the statutory definition of “total disability,” i. e., “inability to return to any employment” [V.A.M.S. Sec. 287.020(8)], and that he was still totally disabled on December 13, 1961, the date of rehearing, as he had been on June 6, 1957, the date of the final award. In considering whether an individual is totally disabled under the statutory definition, our courts have said that “[w]hen we speak of the 'ability’ or 'inability’ of a person to obtain and hold employment, we ordinarily have in mind that the person referred to is either able or unable to perform the usual duties of whatever employment may be under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment.” Kinyon v. Kinyon, 230 Mo.App. 623, 629-630, 71 S.W.2d 78, 82; Maddux v. Kansas City Public Service Co., Mo.App., 111 S.W.2d 208, 212; Caldwell v. Melbourne Hotel Co., Mo.App., 116 S.W.2d 232, 238. See Groce v. Pyle, Mo.App., 315 S.W.2d 482, 490(6).

Witness Ball, a registered nurse and the director of nurses, testified that claimant’s ratings placed him “in the middle of the average attendants,” that no complaint concerning claimant’s work had come to her, and that he was retained in his position for “his ability to perform the job” and for no •other reason. Witness Young, a registered nurse and an evening supervisor under whom claimant had worked for about one year, characterized his work as “average” —“that’s just about what everybody does,” said that she “never had any complaint about him,” and added the sage observation that “if you have people who don’t work you soon hear about it from the other ones because nobody likes to do the other fellow’s work.” Witness Roberts, a “hospital attendant II” called to the stand by claimant’s counsel, likewise had heard no complaint about claimant’s work, was “sure it is the fact that he does his work” that kept claimant on his job, and added emphatically that “if you would ever go out there you [would] know that you have to perform your work to stay out there.”

We think that the foregoing will suffice to demonstrate that the Commission reasonably could have found (as it did) with respect to claimant’s employment at the hospital : “ * * * that he [claimant] entered such employment by virtue of a merit system examination and interview which had placed him on the register maintained for hospital attendants; * * * that said employee is and has been performing the ordinary, usual and customary duties incident to said employment and that he is and has been performing said duties in a satisfactory manner; that said employment is bona fide and not colorable; that vacancies in the type of employment engaged in by the employee are filled from those members of the open labor market who possess sufficient qualifications as to be placed on the register of the state merit system; that the employee received his employment and maintains the same on his own merits without assistance from considerations of friendship, sympathy or pressures; and that the employee performs the duties of his employment in the manner such duties are customarily performed by the average person engaged in such employment.” (Emphasis ours).

As claimant’s counsel emphasize, there are disagreeable aspects to the work of a hospital attendant, particularly in an institution for the mentally retarded and epileptics, and this no doubt accounts in large measure for the comparatively rapid turnover in that category of employees. But it cannot be gainsaid that, in ministering to the physically and mentally afflicted, hospital attendants are engaged in an essential humanitarian labor. And, regardless of whether instant claimant actually considered his job to be a desirable one or whether he simply took it (as his counsel suggest) out of practical financial necessity, he did not obtain the job through a relative’s influence or hold it because others substantially performed the duties of his position, as was the situation in Kinyon v. Kinyon, supra, 230 Mo.App. loc. cit. 630, 71 S.W.2d loc. cit. 82, upon which claimant’s counsel here rely. Nor could it be said that the relationship between claimant and the State of Missouri, his employer, was “brought about by a charitable hiring * * * through kindness or pity on the part of an employer” [Caldwell v. Melbourne Hotel Co., supra, 116 S.W.2d loc. cit. 239] or that claimant’s work might be likened to that of a sidewalk vendor of pencils and shoestrings. Maddux v. Kansas City Public Service Co., supra, 111 S.W.2d loc. cit. 214. In short, we have no doubt but that claimant’s work was an “employment” within the contemplation and meaning of the statutory definition of “total disability” [V.A.M.S. Sec. 287.020(8)] and that claimant was not, at the time of rehearing on December 13, 1961, totally disabled.

However, all of the foregoing still does not afford an adequate and complete answer to the question whether there had been a substantial change in claimant’s condition between the date of the final award and the date of rehearing, i. e., between June 6, 1957, and December 13, 1961. For, if perchance the Commission erred in its finding of permanent total disability at the time of the final award, such error could not be corrected in this proceeding under V.A.M.S. Sec. 287.470 for rehearing on the ground of a change in condition. Brammer v. Binkley Mining Co. of Missouri, Mo.App., 244 S.W.2d 584, 588-589; Sei v. A. Guthrie & Co., Mo.App., 50 S.W.2d 664, 666, certiorari quashed 332 Mo. 1061, 61 S.W.2d 950. In other words, an employer is not entitled to reduction in or termination of benefits payable under a final award simply upon a showing that the extent or duration of the employee’s disability by reason of the condition existing at the time of the final award actually was less in extent or shorter in duration than the Commission then found and declared. State ex rel. Sei v. Haid, supra, 332 Mo. loc. cit. 1070, 61 S.W.2d loc. cit. 954(7).

In arguing that there had been no substantial improvement in claimant’s condition subsequent to the date of the final award, his counsel point out that, upon rehearing, Dr. O’Brien (the only orthopedic specialist who then testified) said that “there wasn’t much change” in the right shoulder, that there was “no substantial difference” in the condition of the left foot, and that, since the right hip joint did not fuse, the intended result in that area had not been achieved, by reason of all of which the doctor still rated claimant’s disability at 60% of the man as a whole, as he had done prior to the final award. It may be observed in passing that, at all times, Dr. O’Brien had regarded and rated claimant’s disability as permanent partial, i. e., as “permanent in nature and partial in degree” [V.A.M.S. Sec. 287.190(5)], and not as permanent total, a rating in “extreme cases” [Kateman v. Zink, 238 Mo.App. 253, 264, 180 S.W.2d 253, 258] where it is shown that there will be permanent “inability to return to any employment and not merely * * * inability to return to the employment in which the employee was engaged at the time of the accident.” V.A.M.S. Sec. 287.020(8). For that matter, Dr. H. R. McCarroll, an orthopedic surgeon in St. Louis selected by the trial referee to conduct an independent examination prior to the final award, likewise rated claimant’s disability as permanent partial, to wit, as 75% of the man as a whole, not as permanent total. It is interesting to note also that, under the final award for permanent total disability, claimant had received prior to December 13, 1961, the date on which benefits were abated by the award on rehearing, the aggregate sum of $11,258.82 (i.e., $30 per week for 300 weeks from October 15, 1952, to July 15, 1958, inclusive, or the sum of $9,000, and thereafter $12.69 per week for 178 weeks from July 16, 1958, to December 12, 1961, inclusive, or the sum of $2,258.82), which was approximately 93.8%' of the then maximum permissible award of $12,000 (i.e., $30 per week for 400 weeks) for permanent partial disability. Sec. 287.190(2), RSMo 1949, as amended Laws of 1951, p. 621. But enough of this parenthetical comment, for the nature and extent of claimant’s disability — a question of fact within the special province of the Commission [Barron v. Mississippi Lime Co. of Missouri, Mo.App., 285 S.W.2d 46, 48(1); Vollet v. Federal Brilliant Sign Co., Mo.App., 49 S.W.2d 201, 202] — was adjudicated by the unappealed final award and (as we have said), if the Commission then erred in its finding of permanent total disability, such error could not be corrected in this proceeding.

Returning to the record upon rehearing, we find other testimony by Dr. O’Brien, ignored in claimant’s brief but indicative of significant change in claimant’s physical condition. Prior to the final award, the “disuse atrophy” in the right thigh was such that its circumference was one and one-half inches less than that of the left thigh, whereas the lower right leg was so swollen that the circumference of the right calf was then one and one-half inches greater than that of the left calf. At the time of rehearing, the circumference of the right thigh was only one-half inch less than that of the left thigh evidencing muscular development of the right thigh and use of that leg, while the circumference of the right calf then was one-fourth inch less than that of the left calf reflecting the absence of swelling in the lower right leg. Cf. Kaiser v. H. C. Merry, Inc., Mo.App., 79 S.W.2d 474, 477. This testimony with respect to changes in the condition of the right thigh and leg becomes particularly meaningful when read in the light of the undoubted truth that the injury to claimant’s right hip, which affected his ability to use his right leg, was (to borrow the language of claimant’s counsel) “the most disabling of the various injuries sustained.” Furthermore, there was no swelling in claimant’s left foot at the time of rehearing, while there had been at the time of the final award.

Claimant’s own testimony revealed changes in his physical condition. At hearings before the final award, claimant said that he walked with the aid of a cane and agreed with his counsel that he was unable “to walk for any distance satisfactorily.” At the time of rehearing, he did not use a cane and admittedly walked from building to building on the hospital grounds, a distance estimated by him at “about half a block” but by witness Plank of the hospital personnel office at “approximately a quarter of a mile.” At the time of the final award, claimant was “inclined to have a stiff neck all the time.” At the time of rehearing, “the only time I take a stiff neck is if I take a cold.” Although categorically denying that his condition had improved, he did concede upon rehearing that he “might have gained a little strength.”

Upon rehearing, the Commission also had before it the testimony of several lay witnesses concerning claimant’s activities at the hospital over a period of more than twenty-five months, which [wholly aside from the statutory definition of “total disability” in V.A.M.S. Sec. 287.020 (8)] would have permitted the finding that claimant’s disability at the time of rehearing on December 13, 1961, was not total. On the other hand, the evidence .taken at hearings prior to the final award of June 6, 1957, persuasively demonstrated that claimant’s disability then was (as the Commission found) total. (Whether that evidence justified the then finding of permanent total disability is a debatable question without the scope of this appellate review.) Numerous Missouri cases manifest the significance which has been accorded to the testimony of lay witnesses, particularly when supported by some medical evidence. E. g., Slider v. Brown Shoe Co., supra, 308 S.W.2d loc. cit. 310, and cases there cited. So, in determining whether there had been a substantial change in the condition of instant claimant, the Commission was not required to ignore the plain facts concerning his employment and the lay testimony with respect to his activities at the hospital. Kateman v. Zink, supra, 238 Mo.App. loc. cit. 264-265, 180 S.W.2d loc. cit. 258-259; Valentine v. General Paper Stock Co., Mo.App., 37 S.W.2d 457. See also Starchman v. Kansas Explorations, Mo.App., 225 S.W.2d 354.

Mindful that it is for the Commission, as trier of the facts, to draw from the evidence such inferences as reasonably may be permissible [Barton v. Western Fireproofing Co., supra, 326 S.W.2d loc. cit. 349(6)], and that our inquiry is whether the findings and award of the Commission are supported by competent and substantial evidence upon the whole record, not whether a contrary award would have found such support [Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 747], we are constrained to conclude that the award on rehearing abating benefits for permanent total disability as of December 13, 1961, should be affirmed. It is so ordered.

RUARK, P. J., and HOGAN, J., concur.


author: RUARK, Presiding Judge.

text:
    Henry A. JOHNSON, d/b/a Johnson Sheet Metal Works, Plaintiff-Respondent, v. ESTATE of John L. GIRVIN, Deceased, Defendant-Appellant.
    No. 8186.
    Springfield Court of Appeals. Missouri.
    Aug. 13, 1963.

      Welker & Young, Web A. Welker, Linus E. Young, Portageville, for defendant-appellant.
    J. H. Spears, West Memphis, Ark., Hal E. Hunter, Jr., New Madrid, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is an appeal from a judgment involving a claim by Henry A. Johnson, d/b/a Johnson Sheet Metal Works (whom we shall hereafter refer to as plaintiff), against the Estate of John L. Girvin (which will be referred to as defendant).

Plaintiff filed a claim in probate court on a date not shown, but evidently prior to June 19, 1961, because on that day change of venue was filed; and the case was subsequently tried in the circuit court. The claim is for “the sum of $9124.80 on account of labor and materials furnished.” It states that an itemized statement of such claim showing dates and amounts is attached, but no such itemized statement was filed.

The defendant filed its combined answer and counterclaim wherein, after a general denial and plea for discharge, defendant charges that in the summer of 1960 deceased John L. Girvin entered into a verbal contract with plaintiff whereby, for the sum of $5800, plaintiff was to furnish labor and materials to construct an incinerator upon the premises of Girvin’s gin; that plaintiff “guaranteed that the incinerator would automatically burn cotton hulls, refuse from the cotton gin, and refuse from the soybean elevator, as it was blown into the incinerator, and that if it didn’t work it was his ‘baby’ ”; that the incinerator was built but was not well-made or free from defects and would not automatically burn the refuse aforementioned; that because of such defendant had been required to expend the sum of $1,342.21 for labor and oil to burn the refuse, for which amount defendant prayed judgment. The pleading aforesaid further stated that deceased had contracted for plaintiff to do certain pipe work at the gin for the sum of $1,334.20; that $367.80 had been paid on that account; and that there remained the sum of $966.40 in dispute.

From the standpoint of the plaintiff, the case involves three separate items: (a) $1,334.20 for piping and duct work done on defendant’s cotton gin. (b) $5,867.80 ($5800 as finally submitted to the jury) for the construction of what has been variously referred to as a hull burner, incinerator, or refuse burner to be operated in conjunction with defendant’s gin. This claim was based on express contract, (c) $1,922.80 for the construction of a mote burner to be operated in conjunction with the hull burner abovementioned. This was apparently based upon quantum meruit.

From the defendant’s standpoint the dispute combines (b) and (c). It was defendant’s contention that the mote burner was built by the plaintiff as a part of his effort to make good on the contract to build an incinerator which would automatically burn the refuse from the gin.

As to (a), the pipe work, there is no dispute. It is admitted that the sum of $1,334.-20 was due for the work performed. It is also agreed that defendant advanced the sum of $367.80. We think it fair to state that the evidence shows this sum should go to the credit of the pipe work item, although the parties sometimes confuse matters by referring to it as a credit on the incinerator.

The main dispute in the evidence is whether the incinerator and mote burner worked. Defendant contends neither worked. Plaintiff contends that both of them, when correctly operated, did perform the function they were intended to perform.

Here, for a better understanding of some of the things involved, we think we should digress a little in order to discuss “motes.” They are probably not those mentioned in Luke 6:41-42, since they appear to be a byproduct caused in the operation of the new type of lint cleaner. The lint cleaner takes the fuzz off the cotton. As plaintiff explained it, it “doesn’t come from the gin-saw, where the hulls and trash and stuff goes to the hull burner.” The motes are a very light fuzz which “is lighter than air.”

According to the testimony of plaintiff’s son, who made the deal with Girvin, the deceased, plaintiff had just completed doing some pipe work for the Girvin gin and then negotiated the building of a hull burner. Witness and Girvin discussed the type and details of the contemplated burner. Girvin preferred a certain type of burner and plaintiff agreed to build it for the price and sum of $5800 plus tax.

“A. Well, at the time I sold the burner —it was the understanding that if Mr. Girvin wanted a screen on the burner that I would put it on there free of charge, but I told him them screens stopped up with that lint cotton and also told him that there was going to be a certain amount of this light fuzzy — fuzz —it is lighter than air, and ain’t nothing but gunpowder and fzzzt, and floats for miles and miles and miles before it goes down. So, I agreed to put this screen on there if that was what he recommended, after he started ginning. Well, there was a disagreement on the height of the burner, so I come back down here and my brother was installing this burner. I went into Mr. Girvin’s office, me and my brother, and I told Mr. Girvin I didn’t mind putting another ten foot on the burner. It cost us about twelve hundred dollars. I didn’t mind that, but if he wanted the screen or anything else on the burner that it would be to his expense. He agreed to that. So, we went to work and built the burner higher like he wanted it.
“Q. And what was the trouble with it that he wanted it higher?
“A. Well, he said his smoke was getting in the gin.
“Q. Did you build it up to the height that he wanted it ?
“A. Yes, sir.
“Q. And at whose expense was that?
“A. It was ours.”

He said that after the incinerator, with its increased height, was completed, Girvin told him, “ ‘Stop the motes from coming out of the top of that burner and I will give you a check in full.’ ” So, he built the mote burner. They never discussed the reasonableness of the charge ($1,922.80) for building the mote burner. “He just ordered it.” He said that right after he built the mote burner Girvin got sick and went to the hospital. Girvin died December 2,1960.

There was considerable evidence on the part of the defendant that the incinerator would not burn the hulls and other refuse and the mote burner would not burn the motes. The evidence indicates that defendant purchased a burner of different type the following year. Plaintiff’s evidence on the other hand was that, when the burners were lighted and the valves properly adjusted for the load and type of work to be performed, they both worked and functioned correctly. It would serve no purpose to go into detail about this. The jury evidently believed the plaintiff, and there was sufficient evidence upon which such finding could be made.

Plaintiff’s Instruction No. 1 stated that it was admitted that plaintiff and defendant contracted for the construction of an incinerator to burn cotton hulls and other refuse from the gin and bean elevator; and if the jury found that plaintiff did perform according to the terms of the contract and if the incinerator was not defective and did perform the function it was intended to perform according to the terms of the contract, then plaintiff should have verdict for $5800, less any sums the jury might find to have been paid on the contract.

Plaintiff’s Instruction No. 2 was on the theory of a contract price of $1,334.20 for the pipe work (the item which is not in dispute) less any sums paid on such contract price.

Plaintiff’s Instruction No. 3 was as follows:

“The Court instructs the jury that if you find from the evidence that at the instance and request of defendant, John L. Girvin, plaintiff furnished all labor and materials for the construction of a motes burner for the Farmers District Gin in Portageville, Mo. and that if you further find that the defendant was the owner of the Farmers District Gin in Portageville, Missouri, then your ver-diet shall be for plaintiff in such sums, if any, as you find are due plaintiff for such labor and materials furnished in the construction of said motes burner, if you further find that said motes burner was constructed by plaintiff, and if you further find that said motes burner performed the function of burning the motes as it was intended as defined in other instructions herein given to you.”

Defendant’s Instruction No. 5 was based on the premise that if plaintiff agreed to sell and construct an incinerator which would automatically burn the cotton hulls and other refuse from the gin and refuse from the bean elevator and further agreed if it didn’t work the incinerator would remain the property of plaintiff, and if it did not so perform such work, then plaintiff could not recover therefor.

Defendant’s Instruction No. 6 told the jury that if the incinerator did not work and defendant was compelled to expend $1,342.01 in order to dispose of the cotton hulls and refuse from the gin and soybean elevator, then defendant should have verdict on his counterclaim in the sum so expended, less the sum of $966.40, the amount admittedly due on account of the pipe work.

The verdict of the jury was as follows:

“We, the jury, find the issues herein joined in favor of the plaintiff and against the defendant and allow the sum of $8689.20, with interest from the 3-29-61 day of 3-29-62.
“/s/ Johnnie B. Copeland “Foreman
“We, the jury, find the issues herein in favor of the defendant on defendant’s counter-claim filed herein, and award the sum of $367.80, with interest from the None day of-, 19 — .
“/s/ Johnnie B. Copeland “Foreman”

The judgment simply recited the verdicts so found and “it is therefore ordered, adjudged and decreed by the court that judgment be entered in accordance with the verdict of the jury.”

Defendant-appellant’s first contention is that the verdicts are not responsive to the issues because the finding for the plaintiff is necessarily based upon the premise that plaintiff did comply with the contract, whereas the finding for defendant on the counterclaim necessarily presupposes the contract was not complied with. Therefore, the verdicts are self-destructive.

The jury could not have arrived at a verdict in amount of $8,689.20 (which was the full amount less the admitted payment) without finding in favor of plaintiff under Instruction No. 1, which submitted the construction of the incinerator in accordance with the contract; and also finding that the mote burner was of the full value claimed. They could not have found for defendant on the counterclaim without finding plaintiff did not comply with the contract and defendant was thereby damaged. Verdicts so inconsistent and contradictory cannot stand, because they destroy each other. They become no verdict. Barr & Martin v. Johnson, 170 Mo.App. 394, 155 S.W. 459; Ruth v. McPherson, 150 Mo.App. 694, 131 S.W. 474; Bauer Engineering & Contracting Co. v. Arctic Ice & Storage Co., 186 Mo.App. 664, 172 S.W. 417; Shaw v. Richards, 208 Mo.App. 671, 236 S.W. 405; Smoot v. Riebel, Mo.App., 274 S.W. 522; Blackman v. Botsch, Mo.App., 281 S.W.2d 532, 535; Smith v. Rodick, Mo.App., 286 S.W.2d 73.

It is likely that the jury was confused. It could well be argued that, since the credit of $367.80 was conceded by all parties, the jury took as the means of giving that credit awarding it on the counterclaim. This may be; nevertheless, the attempt by a court to surmise what a jury intended, ignoring what it plainly said, is a dangerous intrusion upon the fundamental and traditional concept which is a part of the bone and gut of our law, to wit, that the jury is supreme in determining questions of fact. Thus we have said that we may not speculate upon what a jury meant by what it said. Ralston Purina Co. v. Kennedy, Mo.App., 347 S.W.2d 462. Even if we should so speculate, a calculation will quickly show that the credit, to the exact penny, had already been given by reduction in the amount awarded to the plaintiff. Are we to speculate that the jury intended to give credit twice?

Whether or not defendant contributed to cause this fuddle by submitting an inconsistent defense of contract of sale only subject to approval and a counterclaim on theory of completed sale and breach of warranty, we do not find it necessary to decide. The fact remains that the verdicts destroyed each other.

While on the subject of this verdict, we suggest that the attempt to award interest was a nullity. One of the sacred cows of the Missouri appellate courts is the rule that the jury must compute the interest, even where the process is simply an arithmetical, mechanical process. Mercantile Trust Co. v. Dulle, Mo, 282 S.W. 414, 416; Johnson v. Grayson, 230 Mo. 380, 130 S.W. 673, 680; Lajoie v. Central West Casualty Co. of Detroit, Mich., 228 Mo.App. 701, 71 S.W.2d 803, 815; Farmers’ Bank v. Stamper, Mo.App, 250 S.W. 959, 961; Good v. Kenney, Mo.App, 226 S.W. 596; Hackett v. Dennison, 223 Mo.App. 1213, 19 S.W.2d 541, 544; State v. Green, Mo, 305 S.W.2d 688.

It is the duty of a trial court to examine the verdict when it is returned; and, if such verdict is found to be insufficient as to form, ambiguous, or inconsistent, the court should require the jury to correct it. Thorne v. Thorne, Mo., 350 S.W.2d 754; Blackman v. Botsch, Mo.App., 281 S.W.2d 532; Brown v. Kroger Co., Mo.App, 358 S.W.2d 429. Needless to say, it is counsel’s duty to call the attention of the court to any inconsistency or irregularity in such verdict.

Defendant complains of plaintiff’s Instruction No. 3, because, in referring to the functions to be performed by the mote burner “as it was intended,” it refers to other instructions; “whereas there was no other instruction” defining the functions of the mote burner, except as inferentially included in defendant’s Instruction No. 5, which treated the incinerator and mote burner as one whole contraption. Whether the giving of an instruction which refers the jury to nonexistent instructions is reversible error depends upon whether jury was likely to have been confused or misled. Chapman v. Missouri Pac. R. Co., 217 Mo. App. 312, 269 S.W. 688(9); Bennett v. Standard Accident Ins. Co., Mo.App., 264 S.W. 27; Shutz v. Wells, Mo.App., 264 S.W. 479; Williams v. Hyman-Michaels Co., Mo.App., 277 S.W. 593. Since the case must be retried, we do not decide whether the reference in this case added to the confusion.

We do note, however, another defect in such instruction which we consider to be plain error. The jury was directed to find for plaintiff “in such sums, if any, as you may find are due plaintiff.” Plaintiff had testified that no price was agreed upon for the mote burner. “He just ordered it.” The submission was necessarily on quantum meruit. The measurement of recovery is for the court to declare according to' the law. A jury is not permitted to establish its own standards of measurement. Red-E-Gas Co. v. Meadows, Mo.App., 360 S.W.2d 236, 241; Doll v. Purple Shoppe, 230 Mo.App. 256, 90 S.W.2d 181(7); Ingram v. Great Lakes Pipe Line Co., Mo.App., 153 S.W.2d 547, 555. And an instruction on quantum meruit should not direct a recovery without requiring that the amount be based upon the reasonable value of the work or articles furnished. Dalton v. Poinsett, Mo.App., 164 S.W.2d 124; Rodgers v. Levy, Mo.App., 199 S.W.2d 79, 82; Kick v. Doerste, 45 Mo.App. 134, 140; Adams v. Smith, Mo.App., 307 S.W.2d 525.

For the foregoing reasons the judgment is reversed and the case is remanded for retrial.

STONE and HOGAN, JJ., concur.

      . How the jury got the date March 29, 1961 we do not know. as the date when interest should begin to run


text:
    STATE of Missouri, Plaintiff-Respondent, v. Elden ARNETT, Defendant-Appellant.
    No. 8166.
    Springfield Court of Appeals. Missouri.
    Aug. 23, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 9, 1963.

      Robert B. Baker, Ellington, for defendant-appellant.
    Geo. F. Addison, Special Prosecutor, Salem, for plaintiff-respondent.
   RUARK, Presiding Judge.

The defendant, now appellant, was charged with failing, neglecting, and refusing to provide adequate food, clothing, lodging, and medical attention for his female child, she being under the age of sixteen years, “from and after the 1st day of May, 1960 until the 25th day of April, 1961.” A jury found him guilty and assessed his punishment at thirty days in jail and $1,000 fine.

Defendant and his (now former) wife lived near Salem, Missouri. They were divorced March 19, 1960. Before, or in conjunction with, that decree, defendant and his then wife entered into a property settlement They also entered into an agreement that defendant would pay $100 per month as support for the child. The provisions of this contract were made a part of the divorce decree.

In order to effect the property settlement, the farm home was sold and a portion of the proceeds was paid to- the wife. It is rather indefinite how much defendant received from the sale of this farm home. He testified that he took back a mortgage for $3,000 when the place was sold. At another point in his testimony, he stated, “After I paid her, I had a note for $3,000.-00. After I paid off a note at the bank, I had around $3,000.00, something like that. Q. What did you do with this money you had? A. Well, I lived it up, most of it.” So, we are uncertain whether defendant came out of this transaction with some-think like $3,000 of with that sum plus a $3,000 mortgage. Shortly after the divorce decree was entered, defendant acquired (a) a new wife and (b) a new home (title taken by the entirety); and the new wife acquired a new restaurant, in which defendant testified he had no interest. Later on, although, the time is not very definite, defendant and his new wife acquired a new automobile (joint title).

These acquisitions kept defendant so busy that he neglected to pay the promised child support. An execution was issued, and in May 1960 defendant paid the sheriff $200. (Defendant says the sheriff threatened him.) He never paid any of the promised support payments thereafter during the period from May 1, 1960, to April 25, 1961, which is the period charged and which we will hereafter refer to simply as “the period.”

At the time of the divorce the daughter was in high school. At some time not shown the former wife got a job as a telephone operator in Rolla. We do know that the daughter stayed for a period in Salem and went to school there. (She was in high school at Rolla when this case was tried.) After payment of $200 to the sheriff in May, defendant made no further payments of support money either to the sheriff or to the mother. The evidence does indicate that upon occasions defendant did make gifts to the daughter in the form of dresses or skirts and blouses and sometimes money in amounts up to $5; but whether and (if so) how much of this was given during the period is indefinite. The mother said: “Q. During the period from May of 1960 up through the 25th of April, 1961, did he give her any dresses then or any skirts ? A. No, not that I know. She went to him several times for shoes and things and he told her he did not have the money, but she did go to him several times. She went to him on her own and asked for money for clothing.” On the other hand, defendant testified he gave the daughter, “I would say it was about around $150.00 during that time, and clothes, I don’t know, it would run,, maybe, $50.00, maybe a little more.” During the period the daughter had pneumonia and evidently some thyroid trouble, and “large” doctor bills were incurred. The mother said that she paid most of them and that defendant paid a total of $33 on these bills. The foregoing seems to be the total amount of support furnished by the father for the daughter during the period involved.

Defendant is a' painter by trade. The former wife testified that prior to the divorce he went from one job to another and was employed most of the time. He had been a member of a partnership (defendant and his brother) in a paint store and as painting contractors. Defendant testified, however, that he had disposed of his interest in this partnership long before the divorce. There is no testimony to the contrary. The only work which the state proved the defendant did during the period was that of painting the courthouse. 'County warrant records show that from October 31, 1960, to March 13, 1961, defendant personally received warrants totaling $557. Warrants totaling $1,008.37 were also issued to Arnett Brothers Paint Company, but defendant denied having any interest in the concern at that date. The next job concerning which there is any proof was that which involved the painting of a schoolhouse at Summersville, where defendant was engaged for about six weeks. However, that job was undertaken almost at the end of the period here involved. After that the defendant worked on a painting job in St. Louis for about two months.

Defendant testified he was a farmer and •painter; that he had been operated on three times (in 1949 or 1950, 1951, and 1959) for fistula and hemorrhoids; that he had a hernia which caused him pain when he worked. His statement as to this physical condition was not substantiated by medical evidence. He testified he did not recall doing any work during the period other than that we have above described. He said he bought his new home in May and paid for it $7500; and he said his present wife traded in her car as a down payment and he gave a mortgage back for $4,000.

A special prosecutor was appointed by the court to try this case. He testified that within a few days after his appointment he asked the defendant to come to his office and talked to him. “I asked him rather than for me to prosecute him, the case against him, under appointment of the Court, that he go ahead and do what he had agreed to do.” He testified that defendant answered: “ T won’t pay a cent. I will rot in jail first.’ ”

Appellant first raises the question of the constitutionality of Section 559.350, V.A.M.S., as being vague, indefinite, and in violation of due process. If such is a live question, jurisdiction is in the Supreme Court. However, constitutional questions must be raised at the first opportunity which good pleading and orderly procedure will permit. No attempt was made to assert this contention until in the motion for new trial. We think this was not soon enough. Appellant says that the question obtrudes itself upon judicial notice with such insistent demand for recognition that consideration of it cannot be escaped. See Strother v. Atchison, T. & S. F. R. Co., 274 Mo. 272, 284, 203 S.W. 207, 211. It did not so obtrude itself far enough upon the appellant’s notice to cause him to appeal to the court having jurisdiction of constitutional questions; and we do not feel that we can “obtrude” it upon the Supreme Court.

Appellant’s second contention is that the evidence is insufficient to sustain the judgment because (a) there was no showing as to what constituted adequate food, clothing, lodging, and medical attention, and (b) the evidence did not show defendant’s ability to provide more than he did.

The state is required to prove every constituent element of its case, including both the failure to supply adequate support (without good cause) and defendant’s ability to do so. But the inability to render the support required by law and moral sense must be an inability which is not brought about intentionally and willfully by the parent. In other words, he cannot willfully and voluntarily place himself in a condition whereby he is unable to discharge his legal and moral duty for the purpose of escaping such duty.

In determining whether there is sufficient evidence to sustain the verdict, the appellate court does not weigh the evidence or make a choice as to the credibility of witnesses. Our review is limited to determining whether there was sufficient evidence from which a jury of reasonable men could have found the results so found beyond a reasonable doubt. State v. Earnest, Mo.App., 162 S.W.2d 338. And in making such determination we must assume as true all competent evidence, and reasonable inferences to be drawn therefrom, which support the verdict. State v. Roseberry, supra, Mo.App., 283 S.W.2d 652, 656. In proving its case, especially as to those matters which involve proof of negative facts, the state may establish the violation by circumstantial evidence (State v. Hobbs, supra, 220 Mo.App. 632, 291 S.W. 184, 186; State v. Williams, 136 Mo.App. 304, 116 S.W. 1128, 1129) or by proof of facts from which guilt may reasonably be inferred. State v. Stoughton, Mo.App., 189 S.W. 601; see State v. Hartman, Mo.App., 259 S.W. 513.

Some of the common definitions of “adequate” are “commensurate in fitness; sufficient; suitable” (Shorter Oxford English Dictionary); “equal to or sufficient for some specific requirement; proportionate, or correspondent; fully sufficient; legally sufficient, such as is lawfully and reasonably sufficient” (Webster’s New International Dictionary, Second Edition) ; “equal to what is required; suitable to the case or occasion; fully sufficient; proportionate, as an adequate supply of food” (Funk & Wagnalls New Standard Dictionary of the English Language).

In those cases which have had occasion to construe the similar statutes it has been held that adequate support means personal support, maintenance, food, clothing, et cetera, reasonably suitable to the condition in life and commensurate with the defendant’s ability. State v. Clark, 234 N.C. 192, 66 S.E.2d 669; Szilagyi v. Szilagyi, 170 Misc. 1009, 11 N.Y.S.2d 469, 472; People v. Rogers, Co.Ct., 37 N.Y.S.2d 254; 2 Words and Phrases, “Adequate” p. 544; and “Adequate Support” p. 583.

After the sheriff’s levy in May, the total contributions of the defendant to the support of his child for the year ending April 25, 1961, in gifts of cash and clothing and contributions to medical expense, was not to exceed $250 at the most, and that figure assumes the truth or correctness of some of defendant’s estimates of the amounts (the jury were the judges of his credibility) and ignores the testimony of the state’s witness, the mother, that she did not know of any gifts of clothing during the period. The whole circumstances show that the daughter was in high school and that she also suffered from some physical infirmity which required medical attention. Whether, by these gifts and contributions, the defendant supplied “adequate support” was a question of fact. We think the fact that the defendant had shortly before agreed to supply the sum of $100 per month is some evidence (although we do not consider it as conclusive) as to what defendant himself considered to be adequate support. We conclude there was sufficient evidence upon which the jury could have found that what the defendant supplied was not adequate.

Turning now to the contention in regard to defendant’s ability. It appears that he received and had at least the sum of $3,000 at the very time when he was delinquent in his agreed support payments. There is evidence that he received during the winter of 1960-1961, on one job, at least $557 ($80 in October 1960 and $477 in the period from February 1, 1960, to March 13, 1961). While he said that he was unable to work without pain and he suffered from an old disability, his former wife testified that he worked regularly beforehand. His evidence as to his disability was not confirmed by any medical evidence, and the evidence does show that about the end of the period involved he had undertaken the job of painting a schoolhouse in Summersville; and shortly thereafter he went to St. Louis, where he worked for about two months. In other words, he seemed to be able to work both at the beginning and end of the period.

Returning to the $3,000 which defendant says he “lived up.” Under the circumstances, we are of the opinion that the jury could have believed that he lived it up by buying a new home for the new wife. He was able later, at some time which the transcript does not show, to acquire a late-model automobile. Finally, there is the declaration which he made to the special prosecutor, “I won’t pay a cent. I will rot in jail first.”

We think, as a result of surveying the whole evidence and all the circumstances, there was sufficient evidence from which the jury could have found (either or both) that defendant was not unable to supply support in excess of what he contends he did supply; or that, if he was so unable, his inability was a result of willfully placing himself in such a condition that he was financially unable to do so, for the purpose of avoiding his legal and moral liability.

Another of appellant’s contentions is that, since defendant had contracted with his former wife for support of the child and such contract had been incorporated in the divorce decree, and since the former wife had performed the contract by supporting the child, he is not to be charged. He refers of course to the agreement to pay $100 per month for support of the child- — with which he himself did not comply. He says the former wife has an “adequate remedy” for collection of the judgment; but he does not suggest how that remedy shall be pursued or made effective.

The former wife is not a party to this case. This is a criminal proceeding brought by the State of Missouri under a statute which has as its foundation the object of securing to children from their parent the discharge of the duty of support, and the punishment of those who are so morally bankrupt as to refuse or ignore that obligation. A short answer to defendant’s contention is that the father’s duty to support is imposed by law and cannot be bargained away (State ex rel. Whatley v. Mueller, Mo.App., 288 S.W.2d 405, 411), and a father cannot shift his legal and innate obligation to support his child simply by entering into contract with another. Messmer v. Messmer, Mo.App., 222 S.W.2d 521, 524; In re Adoption of P. J. K., Mo. App., 359 S.W.2d 360, 365; Roberts v. Roberts, Mo.App., 292 S.W.2d 596 and cases at p. 599. Had he actually supplied the support to the person having custody, it would be a different matter. Here he seeks escape simply because of the device of contracting and not performing.

The final contention is that the state’s Instruction No. 1 is in conflict with the information, in that the information charges that the defendant willfully and unlawfully and without good cause did fail and neglect and refuse to provide adequate support, et cetera, from and after the 1st day of May, 1960, until the 25th day of April, 1961; whereas the instruction submits the period involved as “between the 1st day of May, 1960 and the 25th day of April, 1961.” It is argued that this permitted the jury to pick out any shorter period of time between the two dates, less than the entire period charged, and convict the defendant if he failed to render adequate support for the shorter period.

The parties, both state and defendant, tried the case on the theory the whole period was involved. Neither state nor defendant attempted to isolate, pick out, or emphasize any particular time except the whole period extending from May 1, 1960, to April 25, 1961. We think the jury was' not misled and the defendant was not prejudiced. See State v. Roseberry, supra, 283 S.W.2d 652. But, even if the jury should have interpreted the instruction to authorize a conviction for failure to support during only a part of the period, we think it would, nevertheless, have been good. The offense of failure to support is a continuing one (Miller v. Gerk, Mo.App., 27 S.W.2d 444), and failure to support for only a part of the period would have, nevertheless, justified a conviction. Except when time is of the essence (State v. Taylor, 345 Mo. 325, 133 S.W.2d 336 [10]), an instruction which submits file happening of the violation at any time within the limitation period is not error. State v. Evans, Mo.App., 83 S.W.2d 218; State v. Dowell, 331 Mo. 1060, 55 S.W.2d 975; State v. Monsees, Mo.App., 281 S.W. 62; see State v. Hartman, supra, Mo.App., 259 S.W. 513. Nor is appellant in position to complain because the instruction submitted a lesser quantum or amount than the charge and the evidence justified. State v. Pippey, 335 Mo. 121, 71 S.W.2d 719. One who is accused of stealing a fat hog should not be permitted to complain because the hog was lean.

The judgment is affirmed.

STONE and HOGAN, JJ., concur.

      . See § 559.350, Y.A.M.S., as amended Laws 1953, p. 424.

      . City of Frankford v. Davis, Mo.App., 348 S.W.2d 553; State v. Barnes, Mo., 345 S.W.2d 130, 133; State v. Malone, Mo., 301 S.W.2d 750, 757; State v. Griffin, Mo., 339 S.W.2d 803; Sheets v. Thomann, Mo.App., 336 S.W.2d 701, 707.

      . State v. Roseberry, Mo.App., 283 S.W.2d 652; State v. Williams, Mo.App., 349 S.W.2d 375; State v. Akers, Mo.App., 287 S.W.2d 370; State v. Ball, Mo.App., 157 S.W.2d 262; State v. Hagen, Mo.App., 130 S.W.2d 250.

      . State v. Gilligan, Mo.App., 287 S.W. 779; State v. Hobbs, 220 Mo.App. 632, 291 S.W. 184; State v. Mestemacher, Mo.App., 64 S.W.2d 130; State v. Miller, Mo.App., 33 S.W.2d 1063; State v. Florian, Mo.App., 91 S.W.2d 121.


text:
    Mary ABERNATHY, Plaintiff-Appellant, v. COCA-COLA BOTTLING COMPANY OF JACKSON, Missouri, Defendant-Respondent.
    No. 8125.
    Springfield Court of Appeals. Missouri.
    Aug. 23, 1963.
    Motions for Rehearing or to Transfer Overruled Sept. 9, 1963.

      Buerkle & Lowes, Jackson, for plaintiff - appellant.
    Finch, Finch & Knehans, Cape Girar-deau, for defendant-respondent.
   STONE, Judge.

This is an action for personal injuries sustained by plaintiff, then sixty-three years of age, about 9:30 A.M. on Saturday, July 23, 1960, by reason of the alleged explosion of a bottle of strawberry soda pop in Hopkins Brothers self-service supermarket in the Lutesville-Marble Hill area of Bollinger County. Plaintiff sued and went to trial against both the bottler, Coca-Cola Bottling Company of Jackson, Missouri, and the retailer, Hopkins Brothers, but at the close of her case plaintiff voluntarily dismissed as to the retailer. The jury returned a ten-man verdict for $2,500 against the bottler; but, upon the bottler’s after-trial motion to set aside the judgment and to enter judgment in accordance with its motion for a directed verdict at the close of all the evidence, the trial court set aside the judgment for plaintiff and entered judgment for the bottler. V.A.M.R. Rule 72.02; V.A.M.S. § 510.290. From that judgment, plaintiff appeals. The question here is whether plaintiff made a submissible case against the bottler.

Plaintiff, her husband Clarence, and her granddaughter, Jeanie Mooney, then thirteen years of age, entered the supermarket to shop and walked “bade toward the soda rack.” Photographic exhibits, identified as reflecting the situation at the time of accident and received in evidence without objection, show that “the soda rack” was simply a flat ledge or platform about six and one-half inches above floor level (that height being fixed in the testimony) on which there were a few loose bottles and numerous six-bottle cartons of various soft drinks with the cartons in some portions of the display stacked four and five cartons high. Plaintiff and her husband stopped and stood in front of the soda rack, plaintiff at a distance therefrom estimated at two to four feet, and plaintiff’s husband at a point somewhat farther from the rack. The grandparents so stood for a period of time which plaintiff upon trial thought to have been “about a minute or so” (previously estimated in her deposition at “something like five minutes * * * maybe ten”), “waiting on Jeanie to pick out the flavors of soda she wanted.” Plaintiff’s evidence was that none of the family group (i. e., neither plaintiff, her husband nor Jeanie) had lifted or even touched any bottle. According to Jeanie, “I wasn’t really ready * * * to pick them out, I was looking.” Suddenly and without warning, a bottle “exploded” (so both plaintiff and Jeanie said) — “it sounded like a shotgun went off.” Plaintiff’s left ankle was lacerated and glass fragments were imbedded in that area resulting in subsequent complications which we need not detail here.

At the time of accident, Howard Greer, manager of the supermarket, was in his office about twenty feet from the soda rack, Mrs. Greer was working at the checkout counter about fifteen feet from the rack, and Mrs. Helen Nall, another employee, was “at the save-a-stop counter” about thirty feet from the rack. None of these three employees witnessed the occurrence, but all heard the noise. Each testified positively that on other occasions he or she had heard, and thus had become familiar with and could differentiate between, the sound made by an exploding bottle and the sound made by a full bottle breaking when dropped on the supermarket’s concrete floor covered with asphalt tile, and that the sound at the time of accident was not that of an exploding bottle but was “exactly as if a bottle had been dropped on the floor.”

All of the evidence on the subject was to the effect that the liquid contents of the broken bottle covered an area on the floor about the size of a washtub or large dishpan, but that there was no liquid or broken glass on the soda rack. Emphasizing these facts and pointing out that admittedly neither plaintiff nor Jeanie (the only witnesses who testified that a bottle had “exploded”) had observed the bottle in question prior to the occurrence and that neither “had any familiarity with the sound of exploding bottles or of bottles dropped or knocked on a hard floor and breaking,” the bottler’s counsel contend that “the reference by plaintiff and her granddaughter [Jeanie] to an explosion was a mere guess or surmise on their part and did not prove the occurrence of an explosion and was not sufficient to go to the jury on that issue.”

We recognize that not every human assertion should be accepted as the basis of an inference that the thing asserted is true [Wigmore on Evidence (3rd Ed.), Vol. II, § 475, loc. cit. 516], and that, when the testimony of a witness, read as a whole, conclusively demonstrates that whatever he may have said with respect to the issue under investigation was a mere guess, his testimony on such issue cannot be regarded as having any probative value. Van Bibber v. Swift & Co., 286 Mo. 317, 337, 228 S.W. 69, 76(9); Barnhart v. Ripka, Mo.App., 297 S.W.2d 787, 791(7). See Prince v. Bennett, Mo., 322 S.W.2d 886, 891. However, both plaintiff and Jeanie definitely stated, without objection or motion to strike, that a bottle “exploded”; and, with both also testifying that no one had lifted or even touched a bottle (thus negating the bottler’s factual theory that a full bottle had been dropped and broken on the floor), we are of the opinion that the probative worth and effect of the statements that a bottle “exploded” were for the jury and that a submissible case on this issue was made. Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292, 295-296(5-7), and cases there collected.

However, since the landmark case of Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, it has been settled in this jurisdiction that an exploding bottle suit of this character is not regarded as a true res ipsa loquitur case in which mere proof of the occurrence raises an inference of negligence, but that, to make a submissible case against the bottler, plaintiff’s proof as to the explosion must be coupled with and supplemented by substantial evidence tending to show that, after the bottle (which subsequently exploded) had passed from the bottler’s possession and control, (a) it had not been damaged or handled negligently and (b) it had not been subjected to unusual temperature change. Kees v. Canada Dry Ginger Ale, Mo.App., 225 S.W.2d 169, 172(4); Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 232 S.W.2d 181, 185-187; Ferrell, supra, 320 S.W.2d loc. cit. 294-295; Copher v. Barbee, Mo.App., 361 S.W.2d 137, 141-143. Instant plaintiff’s counsel so recognized by requiring appropriate findings in plaintiff’s verdict-directing instruction. Since the bottler’s counsel does not question the sufficiency of the evidence to have justified the finding that the exploding bottle had not been subjected to unusual temperature change, the determinative issue on this appeal becomes whether the finding that the bottle had not been damaged or handled negligently after the bottler had parted with possession and control was supported by substantial evidence.

Drivers for the several bottlers supplying soft drinks to Hopkins Brothers supermarket checked the soda rack periodically, stocked it as needed, and stacked the additional cartons on the rack. The last delivery by the driver for the bottler here sued, prior to the accident on July 23, had been on July 21. But both a co-owner and the manager of the supermarket (called as witnesses for plaintiff) said that they did not know whether the bottler’s driver had left any strawberry soda on July 21 (it was a bottle of strawberry soda that burst), and nothing in the transcript affords any clue as to how long the exploding bottle had been in the supermarket.

Since drivers for the bottlers stocked and stacked the soda rack, there was little need for employees of the supermarket to handle bottles, although occasionally they might replace “a stray,” straighten the display, or do “something like that.” However, this was a self-service market, and the instant record affirmatively confirms what we recently observed to be “a well-knowm fact of present-day business life,” to wit, “that customers in self-service stores indubitably have and freely exercise the practically unrestricted privilege of moving, picking up, handling, examining and relocating items displayed for sale.” Copher, supra, 361 S.W.2d loc. cit. 143. See also Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 317, 118 S.W.2d 509, 512; Cohen v. Penn Fruit Co., 192 Pa.Super. 244, 159 A.2d 558, 560(4). More specifically, it was established by plaintiff’s witnesses that “very frequently” customers, who desired “mixed cartons” of soft drinks, removed unwanted bottles from cartons, substituted in their place bottles taken from other cartons, and left the unwanted bottles loose on the soda rack. In fact, Jeanie had done that on other occasions and, at the time of accident, apparently was contemplating another “mixed carton.”

Obviously, there was ample opportunity for the handling and mishandling of bottles on the soda rack. The only evidence relevant to the inquiry as to whether the exploding bottle had been damaged or handled negligently came from the supermarket co-owner, the supermarket manager, and his wife, each of whom testified that, insofar as he or she knew, there had been no mishandling of any bottles on the soda rack within “a few days” or within “two or three days” prior to the occurrence under discussion. However, the limited scope and doubtful significance of such statements become manifest upon further analysis of what the record shows and what it does not show. As for the co-owner, he was in the store only twenty to forty-five minutes each day “on an average” and professed no occult source of information as to what occurred around the soda rack in his absence. As for the manager and his wife, the record discloses no information (a) as to the hours during which the store was open for business, (b) as to the hours which either the manager or his wife worked, or (c) as to their actual observation of, or their opportunity to observe, the soda rack or that general area, this being a matter of prime importance in view of the fact that bottles may be handled negligently or damaged (short of being burst) without sufficient noise or disturbance to attract the attention of those working in a different area. Furthermore, there was no evidence as to the number of supermarket employees and no effort to account for those who may have had an opportunity to observe the soda rack but were not called as witnesses.

As instant plaintiff reminds us, we held in Ferrell, supra, 320 S.W.2d loc. cit. 295-297, that the testimony of an injured proprietress of a small beauty shop that cases of coca-cola, stacked in a supply room and not openly accessible to patrons, had not been disturbed after their delivery afforded substantial support for a finding that the bottles had not been damaged or handled negligently after leaving the bottler’s possession and control, where the testimonial qualifications of the proprietress were not challenged and the noted testimony was received without objection or motion to strike. And, recognizing that in this category of actions plaintiff may make a submissible case of general negligence by circumstantial evidence [Maybach, supra; Kees, supra, 225 S.W.2d loc. cit. 171(3); Stephens, supra, 232 S.W.2d loc. cit. 187], we also said in Ferrell, supra, 320 S.W.2d loc. cit. 297(8, 9), and here repeat, that “to afford a substantial and sufficient basis for deductive reasoning * * * circumstantial evidence need not have the quality of absolute certainty” and that submissibility of the issue as to mishandling does not require evidence eliminating every remote possibility of damage to the bottle after it passes from the bottler’s possession and control.

But there is no factual analogy between Ferrell, supra, and the case at bar. And, heeding the familiar principle that each case must be ruled on its own particular facts [Kees, supra, 225 S.W.2d loc. cit. 172; Ferrell, supra, 320 S.W.2d loc. cit. 296] and attending the record brought to us, we are persuaded that there was in this case no substantial evidence which would have justified or permitted the finding, prerequisite to entry of judgment against the bottler, that the exploding bottle had not been damaged or handled negligently after it had passed from the bottler’s possession and control [Copher, supra, 361 S.W.2d loc. cit. 142-144, and cases cited in footnote 2], and that, therefore, the capable trial judge properly entered judgment for defendant bottler upon its after-trial motion.

Plaintiff also complains that the trial court erred “in failing to grant [her] the right to an appeal as a poor person.” On March 19, 1962, plaintiff filed her notice of appeal to the St. Louis Court of Appeals. However, Bollinger County is within the territorial jurisdiction of the Springfield Court of Appeals [V.A.M.S. § 477.-060], so our St. Louis brethren promptly transferred the cause to us by order entered on March 22, 1962. Art. V, Sec. 11, Const. of Mo., 2 V.A.M.S. On March 23, 1962, plaintiff filed in the circuit court an “Application to Proceed as Poor Person” in which she averred her poverty and prayed an order “allowing her to prosecute her appeal as a poor person and to have a copy of the transcript of all proceedings furnished to her without charge.” On March 27, 1962, plaintiff filed a notice of appeal to the Springfield Court of Appeals. Both notices stated in identical language that plaintiff was appealing “from the judgment entered in this action on the 16th day of March, 1962.” Six weeks after filing of the second notice of appeal, to wit, on May 8, 1962, the circuit court overruled plaintiff’s application to proceed as a poor person. There was no subsequent notice of appeal. In these circumstances, plaintiff may not have appellate review of the order of May 8, 1962. V.A.M.R. Rules 82.08 and 82.04; V.A.M.S. §§ 512.070 and 512.050.

The judgment for defendant bottler is affirmed.

RUARK, P. J., and HOGAN, J., concur.