author: HOUSER, Commissioner.

text:
    In the Matter of the ESTATE of Nancy M. ALEXANDER, Deceased. Annie DOWELL and Robert Patton, Respondents, v. Lee S. McELHINEY, Appellant.
    No. 49114.
    Supreme Court of Missouri, Division No. 1.
    Sept. 10, 1962.

      Edwin Yagel and Errol Joyce, Brook-field, and Robert N. Jones, St. Louis, for appellant.
    Edward R. Jayne, Kirksville, and John F. Carmody, Moberly, for respondents.
   HOUSER, Commissioner.

This is an appeal from the judgment of August 3, 1961 of the Circuit Court of Adair County in the matter of the Estate of Nancy M. Alexander, Deceased. It involves the objections of Annie Dowell and Robert Patton, two heirs of the deceased, to the final and two previous settlements filed by Lee S. McElhiney, the administrator, an accounting of his stewardship, and an effort to modify the settlement and remove the administrator from office for misconduct. The first appeal in this case was dismissed as premature because the judgment appealed from (rendered June 16, 1958) was not final, no accounting having been taken. In re Alexander’s Estate, Mo.Sup., 327 S.W.2d 218. After our mandate went down the Circuit Court of Adair County appointed a referee who conducted a hearing and made a detailed report recommending certain charges and credits to the account of the administrator; finding that the administrator owed a balance of $48,-673.04, and finding gross mismanagement. McElhiney’s exceptions to the referee’s report were overruled. Two of the heirs filed five exceptions, four of which were sustained. New administrators were appointed. On August 3, 1961 the court entered a final judgment confirming the judgment of June 16, 1958 sustaining the heirs’ objections to and striking the final settlement; removing McElhiney as administrator; revoking his letters of administration as of June 16, 1958; amending the referee’s report to satisfy the heirs’ four exceptions; finding that McElhiney should be charged with the sum of $157,680.51 and credited with the sum of $97,855.43; otherwise approving the referee’s report and adopting its findings, and rendering judgment ordering McElhiney to pay his successors $59,-825.08, and to pay costs in the sum of $753.68. McElhiney filed a motion to set aside and to enter judgment in his behalf, or in the alternative for a new trial. Overruled, McElhiney appealed from the judgment of August 3, 1961.

Appellant’s first point is a two-fold attack upon the jurisdiction of the Adair County Circuit Court. Initially, appellant contends that Judge Gutting, who made the order changing the venue from Linn County Circuit Court, was disqualified.

The regular judge of the Circuit Court of Linn County (to which the cause had been certified by the probate court of that county) having been disqualified, the Supreme Court upon the request of the judge transferred Honorable Joseph L. Gutting, Judge of the 37th Judicial Circuit, to Linn County for the trial of the matter. The administrator, not desiring to try the case before that judge or in that county, filed a “Petition and Application For a Change of Venue,” alleging that both Judge Gutting and the inhabitants of Linn County were prejudiced ag'ainst him, and that one of the objectors had an undue influence over the mind of Judge Gutting and over the inhabitants. The application and affidavit were taken up by Judge Gutting, who considered and found them “sufficient, and being accompanied by the regular docket fee of $10.00, the venue of this cause” was “awarded to the Circuit Court of Adair County, Missouri, in the First Judicial Circuit.” After the matter reached the latter court the administrator filed a motion to remand to Linn County, charging that the change was illegal and void; that Judge Gutting was wholly without power to grant it and that the judge of the Adair County Circuit Court was without jurisdiction. The motion to remand was overruled and the matter proceeded to judgment in the latter court. Appellant-administrator argues that when Judge Gutting found the application sufficient he was thereby disqualified and had no further power to grant the change of venue; that he should have called in another judge or requested the Supreme Court to transfer a judge to Linn County to pass upon the application for change of venue from the inhabitants.

The statutes in effect on March 10, 19S8, when the order awarding a change of venue was made, were as follows: Section 508.-090, RSMo 1949, V.A.M.S., as amended Laws 1957, p. 294, § 1, provided that a judge may be disqualified in any civil suit for prejudice or undue influence of the opposite party over the mind of the judge; that a change of venue may be awarded in any civil suit for prejudice of the inhabitants of the county against the applicant, or undue influence of the opposite party over the inhabitants. Section 508.120, RSMo 1949, V.A.M.S., as amended Laws 1957, p. 294, § 1, authorized a party to present a petition setting forth the cause of his application “for disqualification of the judge or for a change of venue.” Section 508.140, RSMo 1949, V.A.M.S., as amended Laws 1957, p. 294, § 1, provided that if reasonable notice has been given the court or judge “shall consider the application, and if it is sufficient, the judge shall be disqualified or a change of venue shall be awarded to some county in the same, adjoining or next adjoining circuit, convenient * * and where the causes complained of do not exist. * * * ” Civil Rule 3.15, then in effect, provided that if the grounds for change of venue are then known the application for change of venue shall be joined with any motion made under § 509.290 (lack of jurisdiction, improper venue, insufficiency of process, etc.), otherwise these objections are waived, and “In case the application for change of venue is granted for objection to the judge, the court shall not decide any other matters raised at the same time but these shall be determined by the court to which the case is sent upon change of venue.”

The Circuit Court of Adair County had jurisdiction. Under the law as it existed on March 10, 1958 Judge Gutting was not disqualified by the mere allegation of prejudice on the part of the judge, and he had full power to award the change of venue. Compare State ex rel. Schonoff v. O’Bryan, 102 Mo. 254, 14 S.W. 933; Wright v. Kansas City, 187 Mo. 678, 86 S.W. 452, 457, 458, and Leise v. Mitchell, 53 Mo.App. 563. The paper filed by the administrator brought two matters to the attention of the judge (the objection to the judge and the objection to the inhabitants). Judge Gutting considered it as an application for a change of venue, which he had a right to do. Upon finding it sufficient and that the docket fee had been paid it was his duty to change the venue from Linn County. He properly awarded the change of venue to a county in an adjoining circuit. There was no necessity to call in another judge under Section 15, Art. V, of the constitution or to request the Supreme Court to transfer a judge to Linn County under Section 6 of said Art. V. As stated in Schonoff, supra, 14 S.W., loc. cit. 935, it is not the intention of the law to permit a cause to be bandied about like a shuttlecock from judge to judge or from court to court without affording effective and prompt relief. By awarding the change of venue, Judge Gutting satisfied the administrator’s second objection, and the incidental effect of his order was to satisfy the first objection, for it took the case away from Judge Gutting and placed it before the regular judge of the 1st Judicial Circuit. Appellant-administrator received all the relief he demanded, and has no cause for complaint.

Next, appellant contends that neither probate nor circuit court acquired jurisdiction over the objections to the final settlement because not filed within 10 days after filing the final settlement, as required by § 473.590. This proceeding, commenced before the enactment of the Probate Code of 1955, was pending on its effective date (January 1, 1956) and therefore § 473.590 would govern the time of filing such objections, unless the application of § 473.590 would not be feasible or work injustice (Enactment clause, Laws 1955, p. 385, Sec. A. 1), in which event the former procedure would apply. We are of the opinion that the application of § 473.590 would work injustice, and that the former procedure should apply. Prior to January 1, 1956 there was no statute prescribing the time within which objections to final settlements should be filed, but it was the practice for interested persons to file written exceptions to objectionable items of a final settlement in probate court, In re Mill’s Estate, 349 Mo. 611, 162 S.W.2d 807, and cases cited, 811, and they were cognizable if filed at the same term at which the final settlement was approved. McNally v. Hawkins, 163 Mo.App. 692, 147 S.W. 503; 4 Maus, Missouri Practice, § 1385. The instant exceptions were filed at the same term and therefore were timely filed.

Appellant’s second point is that the judge of the Adair County Circuit Court erroneously rendered the judgment of June 16, 1958 against the administrator on the ground that he was not present, and erroneously refused to set it aside on the ground that appellant was again absent on the day his attorneys took up his motion to set it aside. This point was not raised in the motion for new trial and is not here for review. This is an appeal from the judgment of August 3, 1961, not an appeal from the judgment of June 16, 1958. If appellant intended to raise the question whether the court properly removed him as administrator, we simply say that under this record the court not only had the right but the imperative duty to remove this administrator by its final judgment of August 3, 1961.

Appellant’s third point, that disbursements to appellant and his counsel for services rendered were improperly disallowed will be determined in the item-by-item consideration of the accounting.

Appellant’s fourth point is: “The burden was upon respondents to prove their charges in their action to eliminate appellant as administrator.” This recital of an abstract statement of law raises nothing for appellate review, under Civil Rule 83.05 (e). Nor is there any such point in appellant’s motion for new trial. In passing, however, we restate the rule from Ladd v. Stephens, 147 Mo. 319, 48 S.W. 915, 921, that the burden of proof is upon him who brings charges of maladministration to make out a prima facie case, and that the burden of proof is not upon the administrator to exonerate himself from such charges, except that when it is admitted by the administrator or shown that he has received assets, he is bound to produce them or account for them. That movants sustained their burden of proof of maladministration will be made evident.

Appellant’s fifth point is that the referee and the court erroneously charged the administrator or refused him credit on thirteen separate items, as follows:

1. Interest on U. S. Treasury Bonds. Appellant concedes the estate owned certain described and numbered U. S. interest-bearing bonds, inventoried at $72,000, bearing from 2½ to 3% interest, payable semi-annually. The amount of the annual income from these bonds was subject to simple mathematical calculation. It was appellant’s duty to collect and account for this income during the period of his administration. Appellant testified he deposited all checks for interest on these bonds and that they were included “someplace in this settlement” but he was unable to point out where they appeared. He had no records and admitted he knew of “no way in the world” to find this in the settlement. He completely failed to account for a considerable portion of the amount of interest which accrued during his incumbency. This is a proper charge against appellant.

2. Dividends on corporate stocks, stock rights and accrued interest on corporate debentures. The inventory listed 18 shares of United Stores Corporation preferred stock; 20 shares of American Telephone and Telegraph common stock; 175 shares of American Sugar Refining Company common stock and 600 shares of Sinclair Oil Corporation common stock. Debenture purchase rights on the telephone stock accrued during the administration. It was appellant’s duty to collect and account for all of these dividends, rights and interest during that period. There was evidence of the amount of the dividends declared on these stocks, the value of the rights, and the amount of interest which accrued on the debentures. Appellant did not claim he did not receive them. He accounted for some but not all of these items, and offered no explanation why they were not fully accounted for. He had no records (claiming they were destroyed in a hotel fire) and could not remember what happened to the rights. These items are proper charges against appellant.

3. Cadillac automobile. While acting as guardian for Nancy M. Alexander, an insane person, appellant concededly purchased a Cadillac automobile for $3,156.-27, paid for it out of guardianship funds, had the title put in his own name, used the automobile partly for his own individual purposes both before and after the death of Nancy, but failed to inventory the car as an asset of decedent’s estate. Appellant’s failure to inventory the Cadillac does not relieve him of the duty of accounting for it. 34 C.J.S. Executors and Administrators § 833, p. 954. When appellant as guardian took the funds of his ward and bought an automobile in his own name he was guilty of a conversion of the funds of his ward. Appellant having treated the car as an asset of the decedent’s estate he was properly charged with its value in this accounting. Its value was properly determined as of the time of the conversion. Deer v. People’s Bank of Springfield, Mo.App., 47 S.W.2d 787; Pantz v. Nelson, 234 Mo.App. 1043, 135 S.W.2d 397. Three and a half years after letters were issued appellant filed in the probate court an application for an order authorizing him to sell the Cadillac to himself, alleging its value at the time of the death of Nancy at $1,800 and its value at the time of the application at $500. The probate court did not pass on this motion, but appellant testified that he “discussed” it with the probate judge and thereafter purchased the Cadillac, paying $1,800 to the estate therefor. There was no documentary evidence of payment. On this de novo review we reach the same conclusion arrived at by referee and court, i. e., that this item is a proper charge against appellant.

4. Hospital and medical services. Before any written demand was presented and without authority from the probate court appellant paid two doctors $2,320 for medical and hospital services rendered Nancy. A month and a half later, on February 17, 1953, a written demand was presented to the probate court for “Residence calls and medication, 4/3/47 to 9/22/49” for $390, and “Hospital care and medications, 9/22/49 to 5/17/52” in the amount of $1,930, a total of $2,320. Nancy was adjudged insane on January 6, 1950 and McElhiney was appointed her guardian that date. She died on May 18, 1952. Under the statute in force on January 6, 1950, § 458.320, RSMo 1949, V.A.M.S., all demands against the estate of an insane person were required to be presented for allowance within one year from the date of the appointment of the guardian, or from the first insertion of the publication of notice of appointment, or else be forever barred. Section 458.320 applied to claims which accrued prior to adjudication of incompetency and appointment of guardian, Trask v. Davis, Mo.App., 297 S.W.2d 792, 797, so that the doctors’, medicine and hospital bills incurred in caring for the ward prior to January 6, 1950 should have been paid by the guardian, on demand presented to the probate court in the guardianship proceeding, but so far as the record shows no such demand was ever presented to the probate court in the guardianship proceeding. Instead, appellant as administrator waived notice and consented to the allowance of the demand in the administration of decedent’s estate and an order allowing the demand was made. Creditors may not at their pleasure ignore the guardianship statutes and after the death of the ward present to the administrator of the ward’s estate claims accruing prior to the adjudication of incompetency and appointment of a guardian, for the estate “must be administrated by the guardian as required by the statute.” Greever v. Barker, 204 Mo.App. 190, 223 S.W. 1087, 1089. Accordingly, appellant as administrator should have pleaded § 458.-320 as a bar to the enforcement of that portion of the demand in question incurred between April 3, 1947 and January 6, 1950. Greever v. Barker, supra. The demand for hospital care and medication rendered to the ward after January 6, 1950 and during the period of the guardianship was properly presented to the administrator of the ward’s estate, upon the death of the ward. Trask v. Davis, supra; 44 C.J.S. Insane Persons § 91, a. (1), pp. 246, 247. To the extent that Greever v. Barker, supra, announces a different rule it is overruled, for the reasons stated in Trask v. Davis, supra, 297 S.W.2d, loc. cit. 797. Appellant was entitled to credit for the payment of that portion of the demand in question which represented the reasonable value of necessary hospital care and medication supplied to the ward from January 6, 1950 to May 17, 1952. The refusal by the referee and circuit court to give appellant any credit on this item was erroneous, and the cause must be remanded for the purpose of conducting a hearing and correcting this error.

5. and 6. Expanses of operating Nancy M. Alexander's farm. In his settlement of November 7, 1955 appellant charged himself with farm income (soy beans, corn, timothy seed) and took credit for expenses of operating the farm, although appellant had not sought or obtained an order from the probate court authorizing him to operate the farm. In their accounting the referee and circuit court excluded income from and expenses of operating the farm. This was proper. The crops in question were not growing crops at the time of Nancy M. Alexander's death, but were planted thereafter. An administrator has nothing to do with crops planted after the death of the owner of the land. An administrator has no rights in or authority over land owned by a decedent except to take charge of growing crops and to cause the land to be sold for the purpose of paying debts which might be allowed against the estate, if the personal property is insufficient to pay the debts. Blum v. Frost, 234 Mo.App. 695, 116 S.W.2d 541, 549. The after-planted crops were not assets of the estate in the hands of appellant as administrator, but belonged to the heirs. 33 C.J.S. Executors and Administrators § 106, p. 1064; Schouler on Wills, Executors and Administrators, Sixth Ed., Vol. 3, § 2030; Rodman v. Rodman, 54 Ind. 444; Kidwell v. Kidwell, 84 Ind. 224. The referee and circuit court properly refused to credit appellant with expenses of the operation of the farm.

7. Premiums on the administrator’s bond, after two years of administration. Appellant was appointed administrator on May 23, 1952. On February 17, 1953 he filed his first settlement. No settlement having been made in 1954 two heirs filed a petition to require him to make settlement. On January 17, 1955 the probate court made an order finding that appellant had failed to make proper settlements according to the statutes, docket and orders of the court and requiring him to make a settlement on February 15, 1955 or show cause why he should not do so, why an attachment should not issue for such failure, and why his letters should not be revoked. On November 5, 1955 appellant made what was labeled an “annual settlement.” On September 7, 1956 an heir filed a complaint seeking the removal of appellant as administrator for failure to file proper settlements, to account for the assets of the estate, commission of waste, mismanagement of the estate, etc. On January 7, 1957 another heir filed a motion to require appellant as administrator to make final settlement and for a citation. On May 17, 1957 the administrator filed his “final settlement,” which provoked the instant proceedings. Appellant was removed as administrator and his letters revoked by the interlocutory judgment of June 16, 1958. From 1952 to 1958 appellant as administrator made three settlements. In his settlements he took credit for administrator’s bond premiums in each of five years in the amount of $460. The referee and circuit court approved the first two bond premium payments of $460 each but refused to credit appellant with the remaining three $460 payments on the ground that they were not necessary; that if the estate had been administered promptly and efficiently it could have been closed in a maximum of two years. The applicable section relating to the time for the making of a final settlement, § 465.160, RSMo 1949, V.A.M.S., provided that a final settlement should be made at the first regular term of the court after the expiration of one year from the date of granting of letters on the estate “unless further time has been given by the court by an order entered of record.” No such extension of time was applied for or obtained from the probate court. Statutory provisions relating to the time within which settlements are to be made, the purpose of which is to secure the expeditious administration of the estates of decedents, are to be strictly complied with. 34 C.J.S. Executors and Administrators § 829. The administrator should proceed with diligence and account and settle up the estate as soon as is reasonably possible without jeopardizing the estate. A failure so to do is an omission of duty and breach of trust. 34 C.J.S. Executors and Administrators § 835. An administrator must justify an unusual delay in the discharge of his trust. In re Hurley’s Will, 193 Wis. 20, 213 N.W. 639. This was an uncomplicated estate. The assets consisted of cash, bonds, stocks, household goods and unencumbered real estate. The claims were few and conventional, with the exception of the demand of the two doctors which, if contested with diligence, could easily have been disposed of within two years. The only reason suggested by appellant why additional time was required to settle this estate is that the securities could not be found. This is not a reasonable excuse. The securities at all times in question were in decedent’s safety deposit box in the local bank where she had done business for years. By the exercise of reasonable diligence and within a reasonable length of time after his appointment appellant could have ascertained the existence of the box and obtained possession of its contents, thus permitting the prompt settlement of the estate and eliminating the necessity of paying the last three years’ premiums on the administrator’s bond. The estate should not be held liable for excessive bond premiums occasioned by appellant’s inordinate and unexcusable delay in closing the estate. The referee and circuit court properly denied credit to appellant for the last three bond premiums. See Thompson’s Estate v. Martin, Mo.App., 133 S.W.2d 677, 679.

8. Premium on an indemnity bond for “lost” U. S. government bonds. Appellant asked for but was denied credit for $431.25 paid as a premium for an indemnity bond required in order to cash $15,000 worth of U. S. Savings bonds. These bonds had been part of the assets of the guardianship estate. Appellant had actual possession of them at the institution of the guardianship proceeding, as acknowledged by him in writing in the inventory. In February, 1953 appellant inventoried these bonds as part of decedent’s estate. More than 3½ years later, in December, 1955, appellant had not yet “found” them. Having had their actual possession during the guardianship proceeding appellant was guilty of gross carelessness and mismanagement in "losing” these bonds and incurring an unnecessary liability for this substantial premium. The estate should not suffer as a result of appellant’s incompetence in this regard. The referee and circuit court properly denied appellant credit for this item.

9. Safety deposit box rent in, 1956. Appellant was properly denied credit on this item, as an expense for which there would have been no necessity had the estate been administered promptly.

10. Taxes. Appellant asked for but was denied any credit for amounts of income taxes paid to federal and state governments for the years 1952, 1953 and 1954, and an amount denominated “Additional federal inheritance tax.” The federal income tax returns were filed late. The return for 1952 was filed in August, 1954. The returns for 1953 and 1954 were filed on June 26, 1956, after the government had filed its lien for taxes. The state returns were made after the filing of the federal returns. All of the returns were fragmentary, gave no detail, and little or no information as to source of income. From one of the returns and from appellant’s admissions it is evident that the net returns from farming operations were included in the income on which appellant paid income taxes during the three years. Penalties and interest incurred by the delinquent filings of the federal income tax returns were as follows: 1952: penalty, $214.80, interest $34.76; 1953: penalty, $375.74, interest $157.59; 1954: penalty $321.19, interest $70.47. Appellant testified his attorneys took care of the federal estate tax return and were responsible to see that it was properly made and filed on time. Although Nancy died May 18, 1952, appellant filed no federal estate tax preliminary notice (due 15 months after death) until May 3, 1955. This matter was so improperly handled that it resulted in several additional assessments, penalties, and interest. There was no attempt by appellant at the hearing before the referee to explain the grossly irregular manner of handling these tax returns; no evidence that appellant or his attorneys ever applied for an extension of time to file income tax returns; no evidence to explain why they were not properly prepared and timely filed or to justify imposition of penalties and interest. At the hearing appellant demonstrated almost complete ignorance and indifference about the matter. He had no records; did not know who prepared the delinquent state income tax returns; could not tell how much of the income was from farming operations and how much was from dividends and interest; could not segregate the government bond interest from the corporate dividends, or tell how much was returned in any particular year from any particular source. He was not certain whether he or his attorneys filed certain returns and did not know when they were filed. He admitted he allowed a lien to be filed against the estate for more than $4,000. When asked what that was he said “It must have been estate tax.” When asked what the item of $2,050.-76 was (“Additional federal inheritance tax,” for which appellant claimed credit) appellant did not know; had no records on it; had no voucher to support it. His attorneys who “handled” the estate tax matter could not find a carbon copy of the return; did not know whether it was in appellant’s papers or whether they had lost it, and offered no explanation of the loose and unbusinesslike manner in which they handled the tax phases of this administration.

An administrator is entitled to credit in his account for taxes properly paid by him in the exercise of his official duties, National Board of Christian Women’s Board of Missions v. Fry, 293 Mo. 399, 239 S.W. 519; In re Flynn’s Estate, Mo.App., 142 S.W.2d 1069, but not for taxes made necessary by his own neglect of duty, misconduct or wrongful act, “and, of course, amounts improperly paid as taxes by him will be disallowed, unless, in the furtherance of justice, the circumstances in the particular case require their allowance, as where no prejudice results to those beneficially interested in the estate.” 33 C.J.S. Executors and Administrators § 235, p. 1238. Where penalties and interest are allowed to accrue by unexplained failure to file tax returns on time, an administrator’s claim for credit for such payments should be disallowed. Cook v. Aronheim, 186 Md. 138, 46 A.2d 105; In re Connolly’s Estate, 79 Mont. 445, 257 P. 418; In re McCafferty’s Will, 147 Misc. 179, 264 N.Y.S. 38; In re Ducas’ Estate, Sur., 109 N.Y.S.2d 17, aff., 279 App.Div. 730, 108 N.Y.S.2d 1016. Applying these rules to the instant facts we see no basis for the disallowance of the principal amount of the income taxes, even though some of the income on which taxes were paid was from farming operations conducted by appellant without court authority. If the administrator had not paid income taxes on the income from the farm the heirs would have been required to do so, and it has not been shown that the heirs have suffered harm thereby. See Cornet v. Guedelhoefer, 219 Ind. 200, 36 N.E.2d 933, 938 [17], 37 N.E.2d 681. But the referee and circuit court properly disallowed the amount of penalties and interest which the administrator suffered to accrue. The estate should not be penalized for the failure of the administrator to file tax returns on time where, as here, money was available to pay the taxes and no valid explanation for his tardiness was advanced. The judgment therefore is erroneous to the extent that appellant was denied credit for income taxes paid, but correct insofar as penalties and interest are concerned. The record indicates that a part of the item “Additional federal inheritance tax” (for which credit in the sum of $2,050.76 was asked) was penalty and interest, but the evidence is not clear as to how much of that item was penalty and interest. On remand further inquiry into this phase of the accounting will be made, and credit will be denied appellant for any penalties and interest which accrued as a result of his unexplained late filing of the inheritance tax return.

11. Overlapping and duplicating items. In his settlements appellant asked credit for federal estate taxes paid as follows:

5-2-1955 “Director of Internal Revenue, Federal Estate Tax” .11,130.20

The referee and circuit court disallowed the $5,033.73 item on the ground that these are overlapping and duplicating items, not explained by appellant. There is insufficient evidence on this record for this Court to determine this question, which should be clarified at the hearing to be conducted on remand.

12. Final distribution checks. In the final settlement appellant asked credit for disbursement of $658.29 to each of five heirs, and $3,291.45 to each of six heirs. Cancelled checks or vouchers substantiating payment of these items were not filed or produced. The referee and circuit court disallowed these items. Appellant testified he made and delivered checks to each of these distributees as shown on the final settlement and contends the checks were issued but the distributees have refused to cash them; that he should not be charged with these items; that he cannot compel the heirs to cash their checks. The judgment of the court makes this provision: “In the event the said Lee S. McIIheny presents proper vouchers for any of the payments shown by item eighty-one (81) of said report, that he be given credit therefor.” If no such vouchers or cancelled checks shall have been produced or filed when the case comes on for hearing on remand the judgment should be amended to direct appellant to stop payment on any un-cashed checks and to pay the amounts of any such uncashed checks into the registry of the court for distribution by the court, failing in which the charges against appellant in these amounts shall stand in the final computations.

13. Administrator’s fees and counsel fees. Appellant asked credit for but the referee and circuit court disallowed administrator’s fees in the total sum of $8,-269.79, and disallowed fees paid by the administrator to his attorneys in the sum of $10,000. The referee disallowed these items for these reasons: “[R]ather than having rendered services to the estate, the administrator and his attorneys have permitted its assets to be wasted, have failed to keep proper accounts and records, have been unfailingly delinquent and have rendered it extremely difficult for themselves, much less anyone else, to determine what the assets of the estate were, what has come into the estate, where it came from, when it came, where it has gone and why. No explanation is offered as to why every tax return, both state and federal, was delinquent, why they did not request extensions of time if they were needed, why the farm income was included in the tax computations and in the administrator’s settlements, why the large annual bond premiums were permitted to continue year after year and the bond not reduced in amount after the $80,000 partial distribution, why the Cadillac was not inventoried as an asset of the estate, why an administrator ad litem was not appointed when the administrator sought to deal with himself by buying the Cadillac, why they did not keep accurate records as to which bonds were sold and when, which shares of stock were sold and when, the date upon which shares and issues of stock dividends were received, why the interest on the government bonds and the dividends on the stock were commingled beyond recognition even by them, why they . paid claims in excess of $100 without requiring a demand to be filed, or last but certainly not least, why they paid themselves a total of $18,269.79 without a petition, hearing or order. It is your Referee’s opinion that the estate has been grossly mismanaged.” We agree. From beginning to end appellant’s administration of this estate has been marked by negligence, carelessness, inattention and indifference to duty, shocking and inexcusable failure to perform the duties of a fiduciary, departure from the requirements of the probate and tax laws, failure to conserve and collect the assets, and mismanagement. Appellant took seven years to “settle” an estate which should have been settled in two years, thereby causing unnecessary expenditure of $1,380 for bond premiums. He filed three settlements during a period in which he was required by law to make seven settlements. Duplicating items were included in the settlements without explanation. The settlements were not in proper form. They were vague, indefinite and uncertain as to date and identity of some items. Appellant failed to file proper receipts and vouchers; paid out of the estate monies for which no demands had been filed and allowed as required by law; failed to keep records; waived presentment and consented to the allowance of a claim for $2,320 as to part of which there was a good defense. He assumed control of farming operations on the lands of deceased without a probate court finding of necessity and requiring him to take possession and rent the same, contrary to Section 462.280, RSMo 1949, V.A.M.S.***, and without the posting of the bond required in such case, then improperly charged and credited himself in this estate with the receipts and disbursements from the farming operations. He paid himself a fee of $300 as guardian, without order of court, after the guardianship estate was closed; paid $431.25 as a premium for an indemnity bond for lost bonds for the actual possession of which he had receipted in writing; converted the property of his insane ward, failed to list it in the inventory, and used it for his own personal purposes. He took credit for a $7,969.79 commission which was excessive and improperly calculated, and paid his attorneys $10,000 without application to the probate court, proof of the nature and extent of the services rendered, or court order authorizing payment. He renewed his $100,-000 administrator’s bond after disbursing $80,000 in a partial distribution. He completely ignored his duty to make and file state and federal tax returns on time; failed to file the preliminary federal estate tax notice when due. Penalties and interest were allowed to accrue on the federal estate tax. The state inheritance tax was certified due on July 23, 1953. Several letters demanding payment, and showing accrual of interest, were mailed by the department of revenue to appellant, who finally paid the tax on February 21, 1955. This delinquency cost $1,070.16 in accrued interest. He failed to file federal and state income tax returns for 1952, 1953 and 1954 on time. Penalties and interest accrued as a result of these delinquencies. Appellant hindered and delayed the processes of the probate and circuit courts. After this case finally reached the Adair County Circuit Court an heir filed fifteen interrogatories relating to the dividends, rights, etc. Appellant ignored and did not file answers to the interrogatories, as required by law. Although the case was set months in advance, appellant failed to appear at the trial to answer the serious charges made against him, but defaulted. After entering a default judgment the court ordered him to appear the next day and render a full accounting. Appellant ignored this order, which was personally served on him in time to appear. This was the culmination of seven years of dilatory tactics, unexcused delay and breach of trust.

Appellant’s attorneys, who were employed from the beginning, must bear their share of the blame for appellant’s delays, delinquencies and mismanagement, of which the inefficient, wasteful and inexcusable delay in finding and taking possession .of the stocks and bonds is an outstanding example. The attorneys’, claim that they earned a $10,000 fee is based principally upon their efforts to find and locate the stocks and bonds, and to prepare to cash them as lost securities. Appellant had not taken possession of these securities during the previous guardianship (with the exception of $15,000 of government bonds). Appellant testified that in 1950, with knowledge that Nancy had a bank account, he asked banker Harold Smith whether she “had anything” (evidently referring to the securities) at the bank and that Smith answered, “No, we asked her to remove it.” Appellant claimed that at the time of the death of Nancy he did not know where the stocks and bonds were and that prior to 1955 he was not aware of the fact that she had a safety deposit box. Nevertheless, appellant testified that after Nancy’s death he made another inquiry of banker Smith and was informed that “they had asked her to remove her stuff at the hank” because “she was claiming that they were taking her stuff and going in her box.” Appellant further testified that the appraisers, two of whom were officers of the bank, advised appellant that decedent did not have a safety deposit box. One of appellant’s attorneys, however, testified that in his previous transactions with Nancy as her attorney over a 10-year period he knew that she had had a safety deposit box at the local bank; that at the beginning of the administration he received information “from those who were in the bank and who knew” that the stocks and bonds “were in there”; that he “supposed that all of her stocks and bonds would be in that box,” and advised appellant that “he could perhaps find them over at the hank in her box.”

No motive was shown to explain why the bankers would mislead the administrator into believing that the decedent left no safety deposit box at the bank, and as triers of the facts we find it difficult to accept this uncorroborated testimony. No banker or appraiser so testified, and it was contradicted by the attorney, who testified in one breath that the bankers told him the papers had been taken out but in the next breath stated that he had information from the bankers “who knew” that the securities “were in there,” and who further testified that throughout the course of the administration he made inquiry at the bank about the box “a dozen times.” If he was satisfied that the hankers had told him the truth, as he claims, there would have been no occasion for him to make repeated inquiries over a period of years. That appellant had constructive if not actual notice of the existence of the box, follows from the fact that the bank made an annual rental charge against the administrator’s bank account by placing among the can-celled checks debit slips for safety deposit box rent. These debit slips were dated March 19, 1951, March 19, 1952, March 18, 1953, March 24, 1954 and March 24, 1955. Appellant denied actual knowledge of these debit slips as they were issued through the years, claiming that all of them showed up at the same time, after he found the box in 1955. His excuse was that it was not his practice to obtain and look at his bank statements; that when he wanted to know the amount of his bank balance he would simply go to the bank and ask. This explanation is unreasonable and unacceptable. The inescapable fact is that appellant and his attorneys had information on the subject sufficient to put them on inquiry, which, if pursued with ordinary diligence, would have yielded up the box and its contents.

If appellant and his attorneys, acting upon information and belief that Nancy’s securities were in a safety deposit box at the bank, had inquired at the bank and had been given unconfirmed information to the contrary, it would have been appellant’s duty, and his attorneys should have so advised him, to make formal demand for possession of the box and contents and if the bank had refused and persisted in concealing or wrongfully withholding the box and its contents from the administrator, to institute proceedings for the discovery of assets under § 462.400, RSMo 1949, V.A. M.S. There is no evidence that appellant made any request at the bank for information as to the date decedent was supposed to have removed her property from the hank and surrendered the box; or any actual demand for access to the box, or any effort to utilize available legal procedure. Instead, proceeding upon the theory that decedent was an eccentric person who had hidden the securities in some out of the way place, appellant and his attorneys instituted a search for the stocks and bonds at the hospital where Nancy died, at her house, and elsewhere. They searched the bed, bedding and room at the hospital; went over her house “inch by inch,” “from one end to the other”; “practically tore the house up”; went through her pocketbook and furniture; looked for an “old tin box” she “kept stuff in”; looked in boxes of old papers; checked the garage, the foundations of the house to see if they could find some loose bricks, and the cellar; interviewed the members of the family and a gentleman friend of the decedent; wrote to various agencies and companies trying to verify ownership and locate the missing stocks and bonds; wrote to the Treasury Department, the corporations, and bonding companies, procuring stop orders on transfers, getting information as to the procedure and cost of issuance of duplicate certificates and of securing refunding bonds to replace the “lost” securities (estimated at $8,000). During all the time this laborious search was in progress (a period of 3½ years) the bonds and stocks were resting securely in decedent’s safety deposit box at the local bank. Finally, in 1955, in a conversation with a representative of a bonding company, appellant’s attorney received a “tip” which convinced him that decedent had a box at the bank, and that the stocks and bonds were in the box. At that late date in the course of the administration counsel finally advised appellant to “go down to the bank and 'put them on the spot’ and see if she didn’t have a box there.”

On this record appellant is not entitled to any fee as administrator. Commissions are allowed to administrators of estates of decedents as an incident to and compensation for the faithful performance of duties imposed by law and are to he denied where, as in this case, the record discloses flagrant mismanagement, conversion of assets, failure to comply with and total disregard for the laws and breach of trust in the performance of the duties of a fiduciary. In re Mills’ Estate, 349 Mo. 611, 162 S.W.2d 807, 813; State ex rel. v. Taylor, 112 Mo.App. 585, 87 S.W. 7; State to use of Wolff v. Berning, 74 Mo. 87, 100.

B0, 31] Administrators are allowed all reasonable charges for “legal advice and service, and collecting and preserving the estate,” to the time of filing the final settlement, under § 465.100, RSMo 1949, V.A. M.S., but an administrator cannot take credit as a matter of course for payments made for such services. There must be a judicial determination whether the services were necessary or beneficial to the estate. In re Mills’ Estate, 238 Mo.App. 373, 183 S.W.2d 369, 374. It was the responsibility of the attorneys to represent, advise and assist the administrator in the proper discharge of the duties of his office. While there was general testimony that they performed the “usual services” of lawyers in administering estates, the administrator under questioning was unable to specify any particular services rendered by the attorneys, except in connection with the preparation and filing of some of the tax returns, “filling out the forms” of settlements, advice in connection with two matters, and efforts to locate and liquidate the stocks and bonds. Their tax work, a consistent record of delinquencies, penalties and interest, was detrimental to the estate. They did not prepare the inventory or the settlements, and were not entitled to pay at legal rates for merely filling in the forms (clerical work which should have been performed by the administrator). The record of services rendered is full of blanks.

Whether we fill in the blanks with advice given and acted upon, or failure to advise where advice was needed, the estate suffered in either event. On the two items of record with respect to which appellant says he consulted his attorneys (possible reduction of the administrator’s bond and payment of the $2,320 doctor bill) the advice given was detrimental to the estate. With a certain remedy available the attorneys failed to advise the administrator how to ascertain whether decedent had a safety deposit box and how to gain access thereto, and participated in a wild goose chase which caused a 3½ year delay in making final settlement, with consequential detriment to the estate. The estate is not to be burdened with reimbursement of the sums the administrator paid these attorneys for their Herculean but misguided and futile efforts to locate and liquidate the “lost” stocks and bonds.

The judgment is reversed and the cause remanded for a hearing and determination on items 4, 10 and 11, a reconsideration of item 12, supra, and the entry of a new judgment as of August 3, 1961 confirming the preliminary order of June 16, 1958; sustaining the objections to and striking the final settlement; removing Lee S. Mc-Elhiney as administrator and revoking his letters of administration, and rendering final judgment on the accounting in accordance with the judgment of August 3, 1961, as modified by and in conformity with this opinion. The costs of this appeal are assessed against Lee S. McElhiney, individually.

COIL and HOLMAN, CC., concur,

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . Under Section 15, Art. Y of the constitution, V.A.M.S.

      . Under Section 6, Art. V of the constitution.

      . Later superseded by Civil Rule 51.05(b), V.A.M.R.

      . i. e., the matters referred to in § 509.-290.

      .In tliis connection see Civil Rule 51.03 (b), which went into effect April 1, I960.

       Now Sections 475.140, 475.205, 475.210 RSMo 1959, Y.A.M.S.

       Now Section 473.587 RSMo 1059. V.A-M.S.

       Now Section 473.263 RSMo 1959, Y.A.M.S.

       Now Section 473.340 RSMo 1959, V.A.M.S.

       Now Sections 473.153, 473.157 RSMo 1959, T.A.M.S.


source: Caselaw Access Project

author: RUARK, Presiding Judge.

license: Public Domain

text:
    Fed Leon BROTHERTON, Plaintiff-Appellant, v. INTERNATIONAL SHOE COMPANY, Defendant-Respondent.
    No. 8048.
    Springfield Court of Appeals. Missouri.
    Sept. 6, 1962.

      Richard D. Moore, Green & Green, H. D. Green, West Plains, for plaintiff-appellant.
    James E. Garstang, C. Lawrence Mueller, Louis W. Riethmann, St. Louis, for defendant-respondent.
   RUARK, Presiding Judge.

This is a Workmen’s Compensation case involving an alleged lower back strain or sprain.

Appellant’s initial claim was that on June 12, 1958, “while unlocking a preparator [perforator?] machine, was using long wrench with pipe over handle of wrench. ■Claimant moved out on end of pipe, pipe bounced throwing claimant in strained position resulting in present injury.”

At the hearing (held June 16, 1960) before the referee, claimant testified that he was 23 years old and had been working for the International Shoe Company for approximately two years prior to the injury. His work was “belt boy or maintenance and handy man.” “We was unlocking a prepar-ator [perforator] machine, we tried practically every way we knew and nothing worked so we got a long pipe wrench and put on the shaft and tried to break it loose, that didn’t work, so we got a pipe to put over the handle of the wrench for more leverage and we was out on the handle of the pipe bouncing up and down on it, I was bouncing on my right foot and when I come down my right foot slipped. I told the employee that was with me I hurt my back.” (Objection to the portion concerning his statement to his fellow employee was sustained.) He said it “felt like something tore loose” on the right side of the lower back. The fellow working with him, Woodworth, “was the machinist over me.” On that day he went to see the foreman and reported that he had hurt his back while unlocking the perforator machine. The foreman sent him to the first aid room. He went “and she [the woman in charge] put it down on the record and told me if I had any more trouble to come back.” About a month later he went back “and told her my hip and back was bothering me and she put it down on the record again. Told me if I had any more trouble to come back.” Approximately three months later his back bothered him "real bad again” and he went to first aid again and “told her something had to be done about it.” “She” talked with the foreman and came back and said there was nothing he could do, so he went to a Dr. Wiles on his own. The employer offered no evidence to deny these reports of accident and injury. After his second trip to Dr. Wiles, claimant was sent to Dr. Yancey of Springfield, who examined him and prescribed a back brace. Afterwards he went back to Dr. Yancey for another examination. After the claim was filed the company sent him to Dr. Kelly of Jefferson City, who examined him. -Later on the company sent him to Dr. Ritter of Cape Girardeau for examination.

Claimant testified that he continued at the same job and had not lost any time from work except when he went to se.e the doctors but that his back bothered him “when I lift, stoop to pick something up, drive the car very far or turn quick, twist,” and that he had complained to the foreman several times. He had obtained a subpoena for the appearance of J. T. Woodworth (the machinist who was working with him), but we gather from colloquy of counsel that the witness had left the area. Claimant had been a member of the National Guard and since his injury, had gone to two weeks’ camp with the Guard on two occasions. On the first trip he tried drilling and couldn’t and was put in the kitchen as a cook apprentice. On the second trip he did no drilling and was assigned as telephone operator, riding back and forth at the company outpost on a Jeep or truck.

The deposition of Dr. Kelly of Jefferson City was introduced. He stated that he examined claimant on September 22, 1959. Claimant gave a history of being employed as a belt boy or maintenance man. Claimant and another employee were using a pipe wrench with a pipe extension to loosen a machine and in so doing they pulled up and down, and he felt a sudden severe pain in his lower back as if something were loose in his back. He then described the complaints of the claimant concerning pain in his lower back. “Then as a conclusion according to the history and examination, this man strained his back while at work either in May or June 1958.” He gave it as his opinion that “this patient has approximately ten per cent permanent partial disability in his back which could very well improve as time goes on.”

By agreement of the parties, there were offered and received in evidence two written reports of Dr. Yancey of Springfield, on the part of claimant, and a written statement or report by Dr. Ritter of Cape Girar-deau, this by the respondent.

Dr. Yancey’s report of an examination made on May 18, 1959, related the history that claimant was using a large pipe wrench and a pipe under the handle of the wrench to give more leverage and was pulling on the handle, which was over his head, when he experienced a sharp pain in the lower portion of his back. “Diagnosis: Chronic lumbosacral strain with mild sciatic radiation. * * * Comment: I believe this man sustained a low back injury at the time he described and from which he has not completely recovered.” He recommended that claimant be fitted with a low back support and stated that he felt he could continue his regular work if such support was fitted to him. He estimated that claimant had approximately 10% permanent disability to his low back.

The report of Dr. Ritter offered by respondent was a result of an examination made April 1, 1960. He related a history, as stated to him by the claimant, that a perforator machine had centered on the dies and in an effort to unlock its fixed position they decided to get a heavy long monkey wrench applied to the shaft in order to break it loose. This was unsuccessful, so a long steel pipe was attached to the handle of the wrench. The extension is said to have been about six or eight feet long. Claimant and another man took hold of the handle, pulling it first up and then down. The spring of the pipe would pull them off the floor and claimant came down bouncing on the right leg. His foot came in contact with the floor and he slipped on some leather shavings and turnings, thus losing his balance. He was pulled back up, at which time he said he let go of the pipe and felt as though something had struck him in the back with a knife.

After dealing with present complaints and further history, then his own examination, the doctor stated that the findings are entirely subjective, but "on the basis of the history given” it was his opinion that claimant had a back sprain and that his disability rating, if any, should not be in excess of 5%.

The referee found that the claim was not filed within one year and therefore denied compensation. However, the final decision of the commission which we review was not based on that ground and in this appeal the respondent does not make any contention in that regard. Since the one-year requirement is a statute of limitations and limitations is an affirmative defense, it would appear that it has been abandoned, and we will not concern ourselves with it. In any event, it is the award of the commission, not that of the referee, which we review. Manning v. Manor Baking Co., Mo.App., 356 S.W.2d 505(4).

On appeal the finding of the Industrial Commission was:

“We find from all of the evidence that employee has failed to sustain his burden of proof in that he has failed to prove causation of his physical condition by the alleged slipping of his right foot as he tugged on the pipe in question. None of the medical witnesses testified to the effect that said condition was caused by said slipping of said foot.
“Nor is there evidence sufficient to establish an accidental injury under the doctrine of the case of Crow v. Missouri Implement Company, Mo., 307 S.W.2d 401. While employee’s exertions in pulling on said pipe (which was on the handle of a wrench) may have been unusual, abnormal, and outside of the scope of his normal activities, the evidence does not so indicate.
“Compensation, therefore, must be and is hereby denied.”

As we see it, the commission did not make its award based upon disbelief of the facts testified by the witnesses. (See Corp v. Joplin Cement Company, Mo., 337 S.W.2d 252, 258.) If we understand its findings, there is no finding that the employee did not suffer injury at the time or place he said he did; and there is no finding that the employee’s foot did not slip. The finding is that there was no causal connection between the slipping and the injury.

The questions therefore are two, i. e., (1) whether the commission was justified under the evidence in denying the claim on the theory that there was no legal causation link between the slipping and the injury; and if such holding was correct, then (2) whether the commission was justified in holding that, sans slipping as a cause, the exertions at the end of the pipe were legally insufficient to permit the injury to be classified as an accident under the Compensation Act.

In reviewing these questions we feel it is not necessary to cite authority for the often repeated statements that we cannot substitute our judgment on a disputed question of fact for that of the commission, but that we can and must decide whether such body could reasonably have made the finding which it did; and that the burden is on the claimant to prove a compensable injury.

Referring now again to (1), i. e., that there was no causal connection between slipping and injury, and on the premise that the commission did not find that there was no injury or that there was no slipping: The elaboration that “none of the medical witnesses testified to the effect that said condition was caused by said slipping of said foot” indicates that the commission did not believe the evidence established the necessary connection between the occurrence of the slipping and the strain which produced the injury. This we believe to have been a conclusion as to the effect of the evidence and a conclusion of law based on that conclusion. If the ruling be based on an interpretation of the law, or the legal conclusion to be drawn from the evidence, or the application of the law to the facts, we are not bound by it. Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, 65-67, and cases there cited; Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296, 298; Specie v. Howerton Electric Co., Mo.App., 344 S.W.2d 314, 316. And in interpreting the written statements and the deposition of the doctors, we do not owe the same amount of deference we would if the question had been one raised by the interpretation of or drawing of inferences from the testimony of persons who appeared and testified. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 652.

First as to the slipping. If the commission was of the opinion that no causal connection was established between the slip and the injury because there was no medical evidence to that effect, then we think it was following a wrong theory. In the establishment of causal connection it sometimes becomes necessary, and very often is most convenient, to accomplish this object by medical opinion. But proof by medical opinion might be impossible in some instances, and medical opinion is not necessarily the only way that such connection may be proved. Garrison v. U. S. Cartridge Co., Mo.App., 197 S.W.2d 675, 676; Nick v. International Shoe Co., Mo.App., 200 S.W.2d 590, 593.

We believe that the actual event which caused the injury was not, in contemplation of the law (since Crow v. Missouri Implement Tractor Co., Mo., 307 S.W.2d 401), the fact of slipping but the abnormal strain or stress that was produced in the whole occurrence. The abnormal strain- caused the injury to. parts of the body. The event of this strain was preceded by several almost simultaneous occurrences, including the bouncing on the end of the pipe with upraised arms, the striking the floor, the slipping, the jerking upward. When all these things occurred practically simultaneously, we doubt whether any doctor could, as a matter of medical opinion, separate and isolate any certain one, point his finger at it, and say that one isolated portion of the occurrence was responsible for the abnormal strain and another had nothing to do with it. In Jones v. Purity Textiles Corp., Mo.App., 328 S.W.2d 714, 717, it was held that where the events followed in rapid succession, and formed one continuous chain uninterrupted by any intervening cause, and terminated in the employee’s injury, they could not logically be separated. And we think the whole occurrences testified to in this case must be considered as one incident.

The commission stated no medical witness testified to the effect that the condition was caused by the slipping. This, as a bare factual statement, is true. But it does not fairly cover the situation. The statements of the doctors were introduced in evidence by agreement. These statements stood in lieu of the depositions of the doctors, and they should be accepted as, or at least in lieu of, testimony. We note that defendant’s medical witness Ritter (by statement) carefully and in great detail related the history of the occurrence, including the bouncing on the end of the pipe, the striking the floor, the slipping, the loss of balance, the being pulled back up and letting go of the pipe, at which time the claimant felt the pain.

Disregarding the question of whether facts stated to the doctor as to the history of the injury are ever of any probative value in determining whether the events related in that history really happened, we are of the opinion that, when the facts which make up the history are in evidence, in so far as they are relevant or helpful to the diagnosis, the history so taken is of probative value as a part of the doctor’s diagnosis and medical opinion in proving the nature, character, extent, and sometimes the causation of the injury if the circumstances make that an issue. Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780, 782; Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663, 671; Coghill v. Quincy, O. & K. C. Ry. Co., Mo.App., 206 S.W. 912, 913; Albert v. Krey Packing Co., Mo.App., 195 S.W.2d 890, 894; Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 667, 55 A.L.R.2d 1022. And there was no objection to any portion of the history related by the doctors. As' a matter of fact, the most complete history was in the medical opinion of the witness Ritter offered by the employer.

The doctor stated that “on the basis of the history given” claimant had sustained a low hack sprain. Since the claimant had testified to substantially the same facts as were related in the history, we think that the doctor’s opinion, coupled with the history upon which he based his opinion, took the place of a hypothetical question, and that the conclusion drawn by him established a causal relationship between the occurrences, which, taken together, constituted one incident, and the injury which resulted.

The foregoing views are based upon the premise that the commission did not find against the slipping (but only against the causal connection) and that the slipping was necessary to constitute the occurrence an accident within the meaning of the Workmen’s Compensation Act. But was the slipping a necessary ingredient?

In Crow v. Missouri Implement Tractor Co., Mo.App., 301 S.W.2d 423, a case where a man had previously held up (by upraised arms) the elevator of a corn picker “once or twice” before but on the occasion in question was engaged in supporting a newer and heavier model and suffered an abnormal strain which resulted in a coronary occlusion, this court held that there was no “accident” within the meaning of the Workmen’s Compensation Act because there was no outside intervention, and that a body strain, in and of itself, was not sufficient. But in Crow v. Missouri Implement Tractor Co., Mo., 307 S.W.2d 401, loc. cit. 404, the Supreme Court overruled that decision and stated, “We find that the general rule is that an abnormal strain causing injury to workman may be classified as an accident,” and accordingly held loc. cit. 405, “However, where an employee’s injury is the result of an unusual or abnormal strain arising out of and in the course of his employment, the injury is compensable. An abnormal strain may, therefore, be classified as an accident even though not preceded or accompanied by a slip or a fall.” The question we have in mind is whether or not, in order to be compensable, the abnormal strain may be one which arises while the employee is engaged in his normal activities or whether it must be one which can be produced only when the employee is doing his work in an “abnormal manner.” The Crow case does not hold that the employee must be engaged in an “abnormal” activity. The doubt as to that question arises from the fact that this feature was mentioned in State ex rel. United Transports, Inc., v. Blair, 352 Mo. 1091, 180 S.W.2d 737, from which the Crow case quoted. In the Blair case the employee was injured in removing a tire rim lug which was stuck. The removal required the exercise of extraordinary force and the employee put his foot on the pipe and pulled and tugged, thus receiving the abnormal strain.

On the other hand, the Crow case overruled Howard v. St. Louis Independent Packing Co., Mo.App., 260 S.W.2d 844, (holding “no accident”) where the employee was apparently engaged in his normal and usual duties in a normal manner but received an abnormal strain simply because the forequarter of beef lifted was larger than customary. An examination of the cases cited by the Crow case in support of the general rule at loc. cit. 404 — 405 reveals that a majority of them were cases in which the employee sustained an “abnormal strain” while engaged in pursuit of his routine duties

In Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, a man engaged in installing kitchen equipment got under a table and, raising himself on his toes, gave an “extra surge of power” and hurt his back. We said that “where an employee suffers an unexpected and abnormal strain (at least while he is engaged in doing something beyond and different from his normal routine) and, as a result thereof, sustains an injury which is not the result of orderly natural causes, the injury is an accident within the meaning of sec. 287.020(2).”

We now conclude that the unexpected and abnormal strain is the important event. This will usually result from the doing of the work in an “abnormal manner” or in doing work which is not routine, but it is not necessarily so. Witness the Howard case, supra, now overruled. And of course the abnormal and excessive strain must be such as of and in itself produced the injury. This rules out those injuries which result from the normal stresses and strains of work which are the product of routine stresses combined with inherent weakness or bodily defect, chronic disability, or natural causes. Smith v. General Motors Corp., Mo., 189 S.W.2d 259; De Lille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834; see Smith v. Cascade Laundry Co., Mo.App., 335 S.W.2d 501. There was no evidence of inherent weakness or chronic condition (prior to the injury) in this case, and we therefore conclude that the claim came within what we conceive to be the doctrine of the Crow case.

If, however, the Crow case be construed, along with the Blair case, to pronounce the doctrine that the abnormal strain must be a product of doing the work in an abnormal or unusual manner, then we are of the opinion that the claimant’s case is still within the doctrine. What is the “abnormal” or unusual way or manner for a handyman to do his work? In this case the claimant was engaged in helping another employee unlock a machine which had become centered on the dies. “We tried practically every way we knew cmd nothing worked.1’ Then they got a long pipe wrench and tried it. That didn’t work either. Then they got a pipe and put it over the handle of the wrench and got out on the end of the handle and were bouncing up and down on it.

We think the very description of the affair depicts an unusual and extraordinary means used in an effort to unlock a machine after “nothing [else] worked.” Certainly the attaching a pipe to a wrench, getting out to the end of it and bouncing up and down is as “abnormal” as a man putting his foot on the lug wrench in order to loosen a lug.

For the reasons aforestated, the judgment of the circuit court is reversed and remanded with directions to reverse the award of the commission and remand it to such commission for further proceedings.

STONE, J., Dubitante.

McDOWELL, J., concurs.

      . Buecker v. Roberts, Mo.App., 200 S.W.2d 529, 532; Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852, 855.

      . Curlee v. Donaldson, Mo.App., 233 S.W.2d 746, 756; Kopp v. Moffett, 237 Mo.App. 375, 167 S.W.2d 87, 91; Ottenad v. Mount Hope Cemetery & Mausoleum Co., Mo.App., 176 S.W.2d 62, 65.

      . See 31 O.J.S. Evidence § 193, p. 924.

      . See review and emphasis on objection in Schears v. Missouri Pacific Railroad Co., Mo., 355 S.W.2d 314; see Hermann v. St. Louis Public Service Co., Mo.App., 345 S.W.2d 399, 405; Terrell v. Missouri-Kansas-Texas Railroad Co., Mo., 327 S.W.2d 230, 240.


author: CLAY, Commissioner.

text:
    UNION BARGE LINE CORPORATION, Appellant, v. James V. MARCUM, etc., Appellee. AMERICAN BARGE LINE COMPANY, Appellant, v. James V. MARCUM, etc., Appellee. MISSISSIPPI VALLEY BARGE LINE COMPANY, Appellant, v. James V. MARCUM, etc., Appellee. Consolidated Cases
    Court of Appeals of Kentucky.
    June 22, 1962.
    Rehearing Denied Oct. 5, 1962.

      James W. Stites, Louisville, for appellants.
    John B. Breckinridge, Atty. Gen., Wm. S. Riley, Asst. Atty. Gen., Francis D. Burke, Frankfort, for appellee.
   CLAY, Commissioner.

These three cases in which a declaration of rights was sought continue a controversy concerning the right of the Commonwealth to impose a franchise tax on appellant barge line companies. They are foreign corporations engaged in interstate commerce. The trial court adjudged in effect that the Commonwealth had made a prima facie showing that appellants’ boats and barges have a taxable situs in Kentucky which would justify the levy of a franchise tax based on an aliquot portion thereof. No assessment has been made but appellants were required by the judgments to supply necessary reports and data to the Kentucky Department of Revenue upon which a tax liability could be ascertained.

The proceedings in these cases and the judgments are sequential to our decision in Allphin v. Ohio River Company, Ky., 306 S.W.2d 94. In that case we held that KRS 136.120 was unconstitutional to the extent it purported to impose a franchise tax upon a foreign common carrier water transportation company based upon the value of the right to navigate the Ohio River through this state. In that opinion we pointed out that if the tax was conditioned upon the company’s doing business in Kentucky or having physical properties with a taxable situs here, such tax would perhaps be valid.

Following that decision the Commonwealth examined appellants’ books to determine the nature and extent of their operations on what are described as “Kentucky waters”. This investigation disclosed a considerable business was conducted by appellants in picking up and discharging cargo at Kentucky ports on the Ohio River, and that a substantial percentage of their ton-mile interstate operations was in this state. Based on these findings the trial court concluded as a matter of law that “the frequent and continuous use of plaintiffs’ boats and barges within the jurisdiction and territorial limits of the Commonwealth of Kentucky” supported a determination that an aliquot portion thereof had a taxable situs in Kentucky and in the counties in which appellants operate. The parties apparently agree that the “franchise” tax involved is an ad valorem tax upon the added value of physical properties of a going concern which are located in Kentucky.

The basic contention of appellants is that no taxable situs of its tangible property (upon which the franchise tax rests) can properly be found to exist in this state because appellants’ operations do not conform to a “system” which would sustain a finding of “permanence” in the location of any part of their fleets in Kentucky. This contention is founded on the fact that the operations are not upon fixed schedules or between fixed points and are subject to the exigencies of traffic, weather conditions, river stages and amount of freight to be transported. It is maintained the movement of their boats and barges on the Ohio River may be classified as casual and sporadic, lacking the character of continuity and permanence which would create a tax situs.

Suggesting that it may somehow resolve the principal issue, appellants stress the proposition that by virtue of the commerce clause of the United States Constitution, the Virginia Compact and the Northwest Ordinance, the navigation of the Ohio River shall be free from any tax, impost or duty. Such was recognized in Allphin v. Ohio River Company, Ky., 306 S.W.2d 94, wherein we held an attempt to tax that right or privilege would impose an unauthorized burden on interstate commerce. That problem is no longer involved in these cases.

The proposed tax is not upon the right or privilege of appellants to navigate the Ohio River or to engage in interstate commerce thereon. It is based upon the presence and use of physical facilities within this state and subject to its jurisdiction. Long ago the United States Supreme Court decided that a tax on tangible property moving in and out of a state is not a tax on or because of transportation or the right of transit. Pullman’s Palace-Car Company v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613.

A Kentucky case confirming this principle is State Tax Commission v. Central Greyhound Lines, 252 Ky. 300, 67 S.W.2d 35. Neither the Virginia Compact nor the Northwest Ordinance impairs the power of Kentucky to impose taxes on property used on the Ohio River. Reeves v. Island Creek Fuel & Transportation Co., 313 Ky. 400, 230 S.W.2d 924. The right of navigation is not here involved. Consequently the case of Commonwealth v. Lee Line Co., 159 Ky. 476, 167 S.W. 409, upon which appellants rely, is not pertinent to the real issue before us.

The difficult problem is to determine whether a proportionate part of appellants’ boats and barges, as tangible property, has a tax situs in this state. The development of the law with respect to the taxability of movable property of a transportation enterprise, flowing through different states, has been devious indeed. See Roy Stone Transfer Corp. v. Messner, 377 Pa. 234, 103 A.2d 700. The most serviceable anchor to windward has been the concept that benefits or protection conferred or afforded a foreign corporation by a particular state furnishes a proper constitutional basis for properly apportioned taxation by such state. See Northwest Airlines v. Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283; Ott v. Mississippi Valley Barge Line, Inc., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585.

A solid basis for taxation is of course the fixed and permanent location of specific tangible property within a state. The extension of this theory to floating property is obviously a tenuous one. It has made necessary the development of this concept: a sufficient number of similar moving tangible properties continuously used in an interstate transportation enterprise may create such an identifiable flow of such properties through a state that it may rightfully freeze a fair portion of that flow into a taxable situs. That this is a sort of legal legerder-main must be acknowledged. Appellants, however, do not challenge the theory. They simply say their operations do not fall within it.

The nature and extent of interstate transportation operations have been the controlling factors in determining whether a particular state may levy a tax upon transient property. We may assume that casual, or sporadic, or occasional movements of the implements of a transportation enterprise into and out of a state do not furnish a sufficient nexus or link between a local taxing power and a foreign corporation. The solution of the problem is really a practical one. If such movements are sufficiently substantial, continuous and constant, then the state necessarily furnishes such benefits and protection as will warrant its demand for a quid pro quo by way of a fairly apportioned tax. See Braniff Airways, Inc. v. Nebraska, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967.

Appellants contend that their operations do not constitute a definable “system”, nor do they have a “permanence”, which are criteria mentioned in some of the cases. These words have no technical legal significance but are simply descriptive of certain facets of an enterprise which would justify the imposition of a tax. Even if they had the importance contended for by appellants, it could be said that the methods of operation shown in this record indicate both a system and a permanency. The fact that because of the nature of the business appellants do not operate their boats and barges on a fixed schedule does not necessarily mean that there is not a systematic utilization of Kentucky territory (i. e., the waterways) ; nor does the lack of a fixed schedule or the fact that the exigencies of traffic affect the scope of operations necessarily mean that such operations are of a nonpermanent nature.

Appellants conduct a substantial, regular and continuous business through Kentucky. The general route is fixed. The absence of specific schedules simply makes more difficult the determination of a fair apportionment, but it does not negative an habitual and continuous use of Kentucky territory. As said in Ott v. Mississippi Barge Line, 336 U.S. 169, 174, 69 S.Ct. 432, 434, 93 L.Ed. 585, 589:

“The problem under the Commerce Clause is to determine ‘what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.’ Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 365, 60 S.Ct. 968, 970, 84 L.Ed. 1254. So far as due process is concerned the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State. See Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267. Those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State.”

The practical application of the principal is thus spelled out in Johnson Oil Refining Co. v. State of Oklahoma ex rel. Mitchell, 290 U.S. 158, 160, 54 S.Ct. 152, 154, 78 L.Ed. 238, 242:

“The basis of the jurisdiction is the habitual employment of the property within the state. By virtue of that employment the property should bear its fair share of the burdens of taxation to which other property within the state is subject. When a fleet of cars is habitually employed in several States— the individual cars constantly running in and out of each State-—it cannot be said that any one of the states is entitled to tax the entire number of cars regardless of their use in the other states. When individual items of rolling stock are not continuously the same but are constantly changing, as the nature of their use requires, this Court has held that a state may fix the tax by reference to the average number of cars found to be habitually within its limits.”

This principle was applied by this Court in State Tax Commission v. Central Greyhound Lines, 252 Ky. 300, 67 S.W.2d 35, and recognized in Reeves v. Service Lines, Inc., 291 Ky. 410, 164 S.W.2d 593. It thus appears settled that a fixed number of units of transient property, constituting an average number of those continuously used in the state, may be the subject of ad valorem taxation even though none of the units involved are permanently located in Kentucky.

Water transportation by boats and barges is on the same constitutional footing as other interstate enterprises employing other transportation instrumentalities. Ott v. Mississippi Barge Line, 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585. We therefore reach the conclusion that the tangible property used in appellants’ operations falls within the scope of permissible taxation by the Commonwealth, and the trial court correctly so adjudged.

We have examined appellants’ other contentions and find them without merit. It must be borne in mind that no franchise tax of any kind has yet been levied on appellants. Any improper assessments may be contested but are not involved in these lawsuits.

The judgments are affirmed.


text:
    AMERICAN COMMERCIAL BARGE LINE COMPANY et al., Appellants, v. James V. MARCUM, Commissioner of Revenue, etc., Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Rehearing Denied Oct. 5, 1962.
    James W. Stites, Louisville, for appellant.
    William S. Riley, Bradford T. Garrison, Francis D. Burke, Hunter B. Whitesell, Frankfort, for appellees.
   CLAY, Commissioner.

This suit challenges the right of the Commonwealth to impose an income tax upon three foreign corporations under KRS 141.040, based upon taxable net income allocable to business or activities carried on in Kentucky as a part of their interstate operations. The nature of these operations and certain controlling principles of law are set forth in Union Barge Line Corporation et al. v. Marcum, Ky., 360 S.W.2d 130, involving these same companies, this day decided. The trial judge determined that appellants “were subject to Kentucky income tax”, to be apportioned “by the ratio of Kentucky ton-miles to total ton-miles accumulated from interstate traffic.”

Some of the basic considerations involved in this controversy were discussed in Union Barge Line Corporation et al. v. Marcum, supra, and will not be repeated here. The contention that the tax impairs appellants’ rights to the free navigation of the Ohio River was answered in that case. In addition, we may point out that an income tax is a tax on the profits arising from appellants’ business activities and consequently is not a tax upon the use of waters lying within the territory of Kentucky. Shannon v. Streckfus Steamer, 279 Ky. 649, 131 S.W.2d 833; Higman Towing Co. v. Cocreham, D.C., 70 F.Supp. 628; Peck & Co. v. Lowe, 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049. Nor does such a tax constitute a forbidden burden on interstate commerce. Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 62 S.Ct. 857, 86 L.Ed. 1090; Northwestern States Portland Cement Company v. State of Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421. Nor is it a “duty of tonnage” forbidden by section 10, article 1 of the Federal Constitution. Peck & Co. v. Lowe, 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049; Commonwealth v. Baltimore Steam Packet Company, 193 Va. 55, 68 S.E.2d 137.

Apparently appellants do not contest the right of a state to tax the net income from interstate operations of a foreign corporation if properly apportioned to local activities. This right has been recognized and confirmed in West Publishing Company v. McColgan, 328 U.S. 823, 66 S.Ct. 1378, 90 L.Ed. 1603; Northwestern States Portland Cement Company v. State of Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421; Higman Towing Company v. Cocreham, D.C., 70 F.Supp. 628, affirmed 5 Cir., 165 F.2d 789; Moore Motor Freight Lines, Inc. v. Wisconsin Department of Taxation, 14 Wis. 377, 111 N.W.2d 148.

Appellants’ contention that they are not “doing business in this state” cannot be sustained. Under the statement of facts in Allphin v. Ohio River Co., Ky., 306 S.W.2d 94, we had expressed that opinion, but the facts shown by this record support the trial judge’s finding to the contrary. It may be pointed out that the imposition of an income tax is not dependent upon this finding since appellants are subject to such tax if they are “deriving income from activities or other sources in this state”. (KRS 141.040) As determined in Union Barge Line Corporation et al. v. Marcum, Ky., 360 S.W.2d 130, this day decided, the commercial activities of appellants in this state are sufficiently substantial to constitute a basis for taxation.

The judgment is affirmed.