author: CULLEN, Commissioner.

text:
    D. J. B. COLLIERIES COMPANY, Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION et al., Appellees.
    Court of Appeals of Kentucky.
    May 8, 1964.
    Rehearing Denied Feb. 5, 1965.

      John M. Stephens, Pikeville, for appellant.
    Paul E. Tierney, Frankfort, Thurman L. Hibbitts, Pikeville, H. B. Noble, Hazard, for appellees.
   CULLEN, Commissioner.

The question in this case is whether a period of unemployment experienced by a particular group of employes was occasioned by a strike or by a lockout. Under KRS 341.360(1) unemployment compensation benefits are payable if the unemployment is due to a lockout, but not if due to a strike.

Employes of D. J. B. Collieries Company made claims for unemployment compensation benefits for a period of unemployment, asserting that their employer had imposed a lockout. The employer resisted the claims, contending that the employes had gone on strike. The Unemployment Insurance Commission upheld the claims and on appeal to the circuit court judgment was entered sustaining the order of the commission. The employer has appealed from that judgment.

D. J. B. Collieries Company had been a signatory to an industry-wide labor agreement with its employes, members of the United Mine Workers. The agreement authorized termination by either party on 60-days’ notice On August 4, 1960, the company served notice of its intention to terminate the agreement, effective October 4, 1960. On August 24 the company posted on its bulletin board the following notice *,

“TO ALL EMPLOYEES OF THE D. J. B. COLLIERIES, INC. BEGINNING OCTOBER 5, 1960, THE FOLLOWING CONTRACT WILL BE IN EFFECT BETWEEN THE D. J. B. COLLIERIES, INC. AND THE EMPLOYEES OF THIS COMPANY:
(1) THE PER HOUR AND PER SHIFT WAGE SCALE WILL NOT BE CHANGED. EACH EMPLOYEE WILL RECEIVE THE SAME PAY HE IS NOW RECEIVING FOR THE TYPE OF WORK HE IS PERFORMING.
(2) THE MINERS VACATION PAY WILL BE DISCONTINUED BUT IN THE PLACE OF VACATION PAY THE COMPANY WILL PAY FOR A FAMILY INSURANCE AND HOSPITAL PLAN WITH A RELIABLE INSURANCE COMPANY.
(3) THE UNITED MINE WORKERS WELFARE PAYMENTS OF 404 PER TON WILL BE DISCONTINUED COMPLETELY.
Our company has sacrified well over a million dollars to the Welfare Fund which has done our own employees very little good. This one thing has caused more coal companies to go into bankruptcy than everything else in the contract combined.
The above contract will be in effect only if there is no interruption in work. In case of a long interruption of work we will lose all of our present orders and will have to find new orders at greatly reduced prices, therefore the wages will have to be reduced accordingly.
As there is no chance that our company can exist under the present U.M. W.A. Contract, and as practically all of the other small companies have had to go non-union, we hope all of our employees will cooperate to the fullest as we know they can not find work at any other Union mine in this area as there are very few Union operations left.
This is the best contract that has ever been offered to a non union group and all of 'you will be much better off with it than with what you had.
Sincerely,
D. J. B. COLLIERIES, INC.”

On October 5 the employes refused to report for work and they continued thereafter to remain away from work. A meeting was held on October 5 between union representatives and the company, at which the representatives told the company that the employes would continue to work only if the company were to resume operations under the former contract or under a contract negotiated through and accepted by the proper union officials.

In present day labor relations it appears that the bone of contention most often is the contract. An essential feature of the contract is a specified period of duration. In the instant case the previously existing contract was being terminated, and no agreement had been reached for a new contract. Either the employer or the employes could have demanded that a new contract (with a fixed period of duration) be entered into forthwith as a condition of the continuance of work. An alternative would be for work to continue pending negotiation of a new contract. However, the question then would be whether the previously existing contract was to govern during the continuation period.

It is our opinion that if the employer, on termination of a previously existing contract, announces that he will not continue to furnish employment unless the employes forthwith agree to a new contract (with a fixed period of duration), he will be deemed to have imposed a lockout, regardless of whether the proposed new contract may be considered more favorable to the employer than was the former contract. See Kentucky Unemployment Insurance Commission v. Louisville Builders Supply Company, Ky., 351 S.W.2d 157. On the other hand, if the employer merely announces that certain terms and conditions of employment will prevail for an indefinite period, without foreclosing the possibility of negotiations leading to a new contract, we do not believe his action can be classified as a lockout, regardless of whether the terms and conditions he specifies are more favorable to him than were those of the former contract. (A possible exception would be where the specified terms and conditions are so onerous or outrageous as to be the equivalent of no employment at all. See Barnes v. Hall, 285 Ky. 160, 146 S.W.2d 929.)

The appellees in the instant case argue that when a previously existing contract has expired, its terms must continue in force pending negotiation of a new contract, and if the employer insists on different terms during the pendency period he has imposed a lockout. We have difficulty finding a valid basis for this argument. To uphold the argument would amount to extending a contract beyond its agreed period of duration. It seems to us that when a contract has terminated it goes out of existence, and the situation then is one of no contract. New terms of employment then are open to negotiation. If the employer says, “From here on out you work on my terms or you don’t work at all,” he is using a refusal to furnish work as a weapon to force the employes to agree to his terms. But if he merely demands that the employes work on his terms pending negotiation of a new contract he is not coercing permanent acceptance of his/terms (except perhaps in the onerous or outrageous situation hereinbefore mentioned).

We realize that the effect of this view might be to permit an employer to keep his temporary terms in force for a prolonged period, simply by refusing to enter into a new contract on any other terms, and thus require the employes to resort to a strike in order to gain the terms they want. But we are not aware of any principle of law that would keep the employer from gaining this advantage. Certainly in the case of nonunionized employments, where no fixed contract has yet been entered, the employer simply by refusing to agree to a contract cannot be guilty of imposing a lockout. In that situation the employes may be forced to a strike to gain their terms.

The appellees in the instant case maintain that the notice posted by the company was in effect an ultimatum that the employes must sign a contract for a fixed period of duration, on the terms stated, as a condition of continuing work. We do not so interpret the notice. The significant thing is that the notice'does not set forth a requirement that the employes sign an agreement to its terms for any specified period of time. Admittedly, the notice might be considered to be ambiguous as to just what the employer had in mind in stating that “the following contract will be in effect,” but in our opinion' it was incumbent upon the employes to test out the situation by offering to continue to work on the new terms under a reservation of the right to negotiate for a new, fixed-term contract. Instead, the employes quit work and told the company they would not work except under the terms of the old contract or under a new contract negotiated through and accepted by the proper union officials. In these circumstances we believe it cannot be said that there was a cessation of the furnishing of work by the employer, which is necessary in order that there be a lockout. See Barnes v. Hall, 285 Ky. 160, 146 S.W.2d 929; Detroit Harvester Co. v. Kentucky Unemployment Insurance Commission, Ky., 343 S.W.2d 365; Kentucky Unemployment Insurance Commission v. Louisville Builders Supply Co., Ky., 351 S.W.2d 157.

In substance, what we are saying is that if the employer refuses to furnish work except under a contract (meaning an agreement with a fixed period of duration) he has imposed a lockout; but if the employes refuse to work except under a contract they have gone on strike.

It is our conclusion that the Unemployment Insurance Commission and the circuit court were in error in holding that the unemployment in the instant case was attributable to a lockout.

The judgment is reversed with directions to enter judgment setting aside the order of the Unemployment Insurance Commission.

STEWART, J., dissenting.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ada DENNY et al., Appellees.
    Court of Appeals of Kentucky.
    June 12, 1964.
    As Modified on Denial of Rehearing Dec. 18, 1964.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., James B. Stewart and C. E. Skidmore, Dept, of Highways, Frankfort, for appellant.
    Robert M. Odear, Robert F. Houlihan, Stoll, Keenon & Park, Wm. S. Black, Robert E. Rice, Lexington, for appellees.
   DAVIS, Commissioner.

The Commonwealth of Kentucky, Department of Highways (hereinafter referred to as Department), appeals from a judgment of the Fayette Circuit Court awarding $40,-511 to appellees incident to this condemnation proceeding.

Three bases for reversal are urged: (1) error in permitting witnesses for the landowners to base their damage estimates on the premise that access to the highway was being taken; (2) error in permitting landowner’s witnesses to introduce and testify from exhibits which did not accurately show the condition of the land at time of taking; and (3) the verdict for resultant damages is so excessive as to appear at first blush to have resulted from passion and prejudice.

The original tract from which the right of way is taken contained 35.7 acres located east of Lexington at the intersection of Lexington Circle Road and U. S. Highway 60 (Winchester Road). The taking is for the enlargement of an existing interchange;, the quantity of land taken is 1.27 acres. The portion taken is located in the northwestern corner of the original boundary. Before the taking the tract abutted the Winchester Road, somewhat along an arc, for a distance of 1685 feet; at the time of the taking only one entrance to the Winchester Road was used to serve the farm; the remainder of the frontage was fenced.

The taken tract of 1.27 acres fronted on the Winchester Road a distance of 1109 feet.' It is shown that 952 feet of that 1109 feet of frontage will be denied access to the abutting highway after the taking. The remaining 733 feet of the original frontage of 1685 feet along Winchester Road is not disturbed. The former entranceway serving the original tract was within the limited access portion, but the Department constructed a new entrance of the same width, at a point east of the controlled access frontage. In order for the Department to relocate the entrance it acquired two temporary easements, aggregating 0.24 acres; the Department retained these easements for two years. In the taking the Department also acquired the appellees’ interest in a possible reverter in a portion of the right of way on old Winchester Road.

The trial of this case occurred before our decisions in Com. Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104, and Com. Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844. The jury’s verdict awarded $5,-080 for land taken, $1,000 for temporary easements, $1.00 for the reverter, and $34,-430 for damage to the land remaining after the taking.

At the time of the taking the entire tract was zoned and being used for agricultural purposes. However, there is no question that the tract has ready adaptability for commercial or residential purposes (although development as either would affect availability for the other). It is situated in an area already extensively developed commercially and residentially. - {

Throughout the trial counsel for the Department interposed objections to all evidence of appellees’ witnesses wherein the witnesses ascribed damages to the remaining land by reason of loss of access to Winchester Road. These objections were consistently overruled. Appellees concede the principle that as long as a property owner has reasonable access to his property after the closing of an existing road by construction of a limited access highway, he has suffered no compensable damages. Dept. of Highways v. Jackson, Ky., 302 S.W.2d 373, and cases discussed there.

Appellees contend that a different principle must apply when a portion of an existing highway is converted from an ordinary highway to a limited access facility. We are unable to accept that contention. We can perceive no basis for application of., another rule in this type case. The rationale of the admitted rule of the Jackson ' case, supra, is that the enhancement in value of land attributable to the mere convenience of the routes of travel which it enjoys is something that does not inure to the landowner as property. The same rule is applicable in the case at bar.

In Com. Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104, we pointed out again that the only access right the landowner has is a right of reasonable access to the highway system, and we further noted that access is subject to control under the police power of the state. The following decisions from sister jurisdictions support the view that limitation of access, so long as reasonable access to the highway system remains, is not a taking by eminent domain, but is accomplished under the police power, and is not compensable. Carazalla v. State, 269 Wis. 593, 71 N.W.2d 276; State v. Fox, 53 Wash.2d 216, 332 P.2d 943; People ex rel. Dept. of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal.Rptr. 151, 352 P.2d 519; State v. Ensley, 240 Ind. 472, 164 N.E.2d 342.

In Carlisle the parties tried the casé oil the theory that the right of access was com-pensable and was being “condemned.” Some significance was accorded the wording contained in the Carlisle condemnation complaint. Substantially the same language is found in the present complaint. However, upon further consideration, we are persuaded that the significance ascribed .to the pleadings in Carlisle was not justified; neither was it necessary to the decision in that case. The proper basis for the rxesult in Carlisle was that since no issue had ','been raised as to the compensability of the .access rights, the Commonwealth was not in a position to claim error in that respect. To the extent that Carlisle attributes controlling significance to the pleadings as appeared in the case, it is overruled.

It will be noted that in Carlisle the case was tried “on the assumption that the landowners had unqualified rights of access to U. S. 41 along the entire frontage of their lot.” But the same thing may not be said here. It is true that the valuation witnesses offered by the Department testified that no damage resulted to the remainder of the land by reason of the taking, but that of it.self hardly resolves the question as to how. the case was tried. However, as the valuation witnesses for appellees testified, counsel for the Department made objection to so much of their evidence as attributed resultant damage to the loss of access. In each instance the objection was overruled. In the motion and grounds for new trial the Department specifically called attention of the trial court to its assertion of the error in admission of evidence that damages resulted by reason of loss of access.

In Carlisle we quoted with approval the tenet that the benefit an abutting owner may derive from the location of a highway and the direction of traffic thereon is not a matter of right; neither does such benefit come within the category of access rights. DeRossette v. Jefferson County, 288 Ky. 407, 156 S.W.2d 165; 5 Nichols Em. Domain, § 16.101 (5).

In this case the Department did not undertake to condemn access rights, and no property right of access was taken. The Department may not be required to pay for something it is not taking. Therefore, it was prejudicial error to permit ap-pellees’ valuation witnesses to predicate damages on loss of access to the Winchester Road.

The appellees assert that no appraiser could express a realistic “after” value without reference to “loss of access.” The simple answer is that there is no loss of access, because the status of the access after the taking is exactly what it was before the taking. Witnesses undertaking to express opinions as to “before” and “after” market values shall assume that the matter of access is not a factor affecting market value before or after the taking.

Our decision in Com. Dept. of Highways v. Vincent, Ky., 357 S.W.2d 678, resolves the question concerning the admitting in evidence of a plat reflecting a proposed subdivision of the land. As noted in Vincent, the evidence is admitted for the limited purpose of demonstrating the susceptibility of the land to subdivision purposes. Here it was clearly stated to the. jury that the land had not been divided pursuant to the plat and that it was being used as farmland at the time of taking.

We do not reach the question of whether the award was excessive. Upon a new trial, the question of damages will be submitted as prescribed in Com. Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844. Witnesses will not be permitted to consider any loss of access as a factor reducing the “after” value of the land.

The judgment is reversed for proceedings consistent with this opinion.

MOREMEN and WILLIAMS, JJ., dissenting.


author: CLAY, Commissioner.

text:
    Mort MULLINS et al., Appellants, v. Harry S. BLANTON et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.
    Rehearing Denied Feb. 5, 1965.
    Paul C. Combs, Combs & Combs, Pres-tonsburg, for appellants.
    George Chad Perry, III, Paintsville, for appellees.
   CLAY, Commissioner.

In this workmen’s compensation case the employee was awarded total and permanent disability benefits. The award was confirmed by the circuit court. Questions raised on this appeal are encompassed in the contention that there was not “substantial evidence of sufficient probative value” to support the award.

The employee claims to have been injured when lifting heavy material on March 2, 1961. Though he worked a few days thereafter, he complained of pain in his back and leg. He was examined by several doctors, including one appointed by the Board. Two of them found symptoms indicating a herniated disc. X-rays failed to disclose this, but all the doctors observed subjective symptoms of limitation of motion and disabling pain.

There is evidence the employee exaggerated his symptoms. It is appellants’ contention that he was malingering and there was no substantial evidence to support the finding of a serious injury or total and permanent disability. Though there was a difference of opinion among the physicians who examined him, there was positive medical evidence, even if based on subjective symptoms, that the employee suffered an injury to his back which resulted in such disability. It is the Board’s duty to weigh and evaluate the evidence. There was sufficient evidence of substance to support the award.

The judgment is affirmed.


text:
    Patricia Kennedy Conlan NICOL, Appellant, v. James Kenneth CONLAN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    Rehearing Denied Feb. 5, 1965.

      Harry L. Hargadon, Hargadon, Harga-don, Leniham & Harbolt, Louisville, Daniel Boone Smith, Harlan, for appellant.
    James S. Greene, Jr., Greene & Forester, Harlan, for appellee.
   CLAY, Commissioner.

This child custody case is a continuation of a controversy which we have twice before considered in Conlan v. Conlan, Ky., 293 S.W.2d 710, and in an unpublished opinion handed down April 19, 1963. Upon a new hearing after our last decision, the circuit court gave the custody of two boys (now aged 10 and 12 respectively) to the father. The appellant mother objects strenuously to the procedure followed and the result reached in the circuit court.

The parties were divorced in 19SS and custody was divided equally between the parents. In 1958, under an agreed amended judgment, the mother had the children during the school months and the father during the vacation months.

In 1961 the mother moved to Louisiana and the father to Hopkinsville, Kentucky.

In 1962, upon motion of the father, the circuit court awarded permanent care, custody and control of the children to him. This judgment was appealed by the mother, and on November 1, 1963, a mandate was issued by this Court reversing that judgment. In the unpublished opinion of April 19, 1963, on the basis of which we reversed the judgment, we decided that the father, with the burden of proving a substantial change of conditions, had not established by sufficient evidence that custody should be taken from the mother.

On November 7, 1963, before the circuit court had entered any judgment in compliance with the mandate, the father again moved to amend the agreed judgment of 1958 on the ground of change of conditions. Thereafter on January 31, 1964, the circuit judge sustained the father’s motion, made written findings of fact and conclusions of law, and placed full custody of the children in the father, subject to visits by them to their mother during the summer months. The appeal before us is from this latter judgment. Since 1962, and after the issuance of our mandate on November 1, 1963, the children have remained with their father.

The appellant mother first contends the Chancellor committed error in failing to enter a new judgment promptly after the issuance of the mandate of this Court forthwith awarding custody to the mother (since the judgment giving custody to the father had been reversed). The appellee father -contends, and the view was adopted by the Chancellor, that in the light of the language of the opinion (of April 19, 1963) and the -case of Preece v. Woolford, 200 Ky. 604, 255 S.W. 285, it was proper to have a further hearing and to permit the introduction of proof. It is unnecessary to decide if the Preece case applies or if the court committed error in this respect. Due to the nature of this proceeding the question is moot. No decision of ours could possibly restore actual custody of these children to the mother as of November 1, 1963. If this was error, it has no bearing on the correctness of the judgment before us since the Chancellor clearly had jurisdiction to •entertain these new proceedings.

It is appellant’s contention the judgment appealed from is erroneous because there was no showing of a change of conditions and no showing that it would be detrimental to the welfare of the children for the mother to have their custody. On the first ground it is maintained that there could not possibly have been a change of conditions within the week which elapsed between the date of the issuance of our mandate on November 1, 1963, and the date of the filing •of the motion to reconsider the question of •custody on November 7, 1963. Appellant overlooks the fact that appellee based his claim on a change of conditions between the date of the last hearing on the question in the circuit court, which was held on July 20, 1962, and the time when the motion was made on November 7, 1963. Our last opinion of course, regardless of when handed down, was limited to facts established at the hearing on July 20, 1962.

Proof introduced by appellee did establish a change of conditions. This may be summarized as the nature of the boys’ adjustments to their stepmother, their father, their neighborhood, their community and their school. There was ample evidence that the boys had happily made these adjustments and were doing very well indeed. When we last considered this case we noted that the older boy was somewhat of a disciplinary problem and did not care for school. The evidence before us discloses a definite change of attitude and aptitude. There can be no doubt that the welfare of these boys will be served by their remaining where they are.

Appellant contends, however, that there was no showing in any respect that it would be detrimental to the childrens’ welfare if custody were awarded to the mother. This is true and of course raises the most delicate question with which a Chancellor can be confronted. We know of no rule of law or equity however, in the absence of some other controlling considerations, which requires one parent to establish that it would be detrimental to the child to be with the other parent before the former is entitled to custody. Surely the Chancellor can, in the interests of the child, allow him to stay at a place where his welfare is shown to be well served rather than risk the chance that his welfare will be equally served at a different place.

Appellant contends it is an accepted rule that the mother should not be deprived of the custody of children of tender years unless she is a person unfit to have such custody or unable to provide a suitable home, citing Renfro v. Renfro, Ky., 291 S.W.2d 46. Assuming this to be a valid principle, it does not here apply. Boys of the ages of 10 and 12 cannot be classified as children of “tender years”. See Russell v. Russell, 20 Cal.App. 457, 129 P. 467.

The findings of the Chancellor show a thorough consideration of the problems here involved. They are well supported by the evidence. There appear no errors in his findings or conclusions.

The judgment is affirmed.

WILLIAMS, J., not sitting.


author: DOERNER, Commissioner.

text:
    Doris BERTRAM, Plaintiff-Respondent, v. Clifton WUNNING, Defendant-Appellant.
    No. 31907.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.
    Roberts & Roberts, Raymond R. Roberts, Farmington, for defendant-appellant.
    Librach, Heller & Byrne, William P. Byrne, St. Louis, E. L. McClintock, Jr., •Flat River, for plaintiff-respondent.
   DOERNER, Commissioner.

Defendant having admitted his liability for the accident which gave rise to this action, the sole issue submitted to the jury was the nature and extent, if any, of plaintiff’s resulting injuries. The jury returned a verdict in favor of plaintiff for $5,000, on which judgment was entered, and after an unavailing motion for a new trial defendant appealed.

The principal points raised by defendant concern the admissibility of the testimony of plaintiff’s attending physician regarding a hernia which developed subsequent to the accident, and the sufficiency of such testimony to establish a causal connection between the accident and the hernia. Dr. Frank Niesen, a surgeon, testified on behalf of plaintiff that he had examined her at the Incarnate Word Hospital in St. Louis on April 23, 1960, the day of the accident. He found that plaintiff had a large swelling on her head, difficulty in moving her neck in all directions, tenderness along her spine up in the cervical area, a large bruise on her chest, another on the abdominal wall, a swelling in the upper gastric area, and black and blue marks on her left arm and forearm. His diagnosis was that plaintiff was suffering from a concussion of the brain, a swelling of the scalp and arm, a possible swelling of the stomach, and a whiplash injury of the cervical spine. He stated, “ * * * At that time I made a note that there was no, no hernia rupture.” Plaintiff was discharged from the hospital on May 6, 1960. The doctor examined her at his office on May 13, 1960, and in his words his findings were, “Well, nothing positive as far as, that I could determine at that time. In other words everything had improved,” which he then qualified by saying, “Except for one thing. I had here that the neck was difficult to turn to the right and left.” On May 23, 1960, the doctor again saw plaintiff, at which time she complained of abdominal pains and was given a drug called Compazene, a mild sedative and a specific for nausea. He testified that plaintiff had suffered from nausea while in the hospital, which had caused him to have an x-ray made of plaintiff’s stomach. Later the doctor said that nausea was frequently seen following a head injury.

Continuing on direct, Dr. Niesen testified that he examined plaintiff on July 19, 1960, and found a femoral hernia. He distinguished a femoral hernia from an inguinal hernia by stating that the “ * * * blood vessels that go to the leg come out of the abdomen through a little opening called the Femoral Canal and there is an artery, a vein, a nerve in the little space and the hernia was in that area. * * * ” After establishing by the doctor’s testimony the causal connection between the accident and the conditions and injuries which the doctor had found present on his initial examination of plaintiff in the hospital, Mr. Byrne, counsel for plaintiff, then inquired:

“Q. Now, Doctor, assume, if you will further, that Mrs. Bertram, as I have already asked you, had a blow to her stomach; assume, if you will, Doctor, that in her hospital course (sic) she experienced pain and distension of her stomach; and assume further, if you will, that from the time that she was discharged from the hospital until, was it August you found the hernia, July 19th?
“A. 19th of July, 1960.
“Q- July 19th, 1960, at which time you found a hernia; I will ask you to state, Doctor, if you have an opinion based upon reasonable medical certainty as to whether or not the accident I have described in my previous question, is the competent producing cause of this hernia which you found present in Mrs. Bertram on July the 19th, 1960?
“A. It could be. I couldn’t say.
“Q. All right. Thank you, Doctor.
“BY MR. ROBERTS: Now, if the Court please, at this time I move that all testimony relative to the hernia be stricken for the reason that he says it could be and does not testify to it as a medical certainty and that was the question that was asked him and I move that all the testimony be stricken.
“BY MR. BYRNE: Q. May I ask you, Doctor, was that your opinion when you diagnosed the condition, was that your opinion based upon reasonable medical certainty that the accident caused this hernia?
“A. The only way I can answer that is, would be, I don’t know if it’s acceptable. It would be a percentage.
“BY MR. ROBERTS: Well, now, if the Court please,—
“A. I would say it would be about a 90 per cent chance that it was caused by that and 10 per cent it wasn’t.
“BY MR. BYRNE: Q. That’s your best opinion based upon reasonable medical certainty, Doctor?
“A. That’s the only way I could answer such a question. I don’t know if that’s acceptable.
“BY MR. ROBERTS: Now, if the Court please, again we move, based upon that testimony, that the entire testimony as to any hernia be stricken from the record and the jury instructed to disregard it.
“BY MR. BYRNE: May I go—
“BY THE COURT: No, overruled at this time.”

Thereafter, over the continued objection of defendant, the doctor described the hernia, the attending pain, and the operative repair, and expressed the opinion that the small nerves which are necessarily cut during the course of the operation “ * * * probably won’t regenerate.”

On cross-examination the doctor testified that the abdominal swelling which he found on the first examination in the hospital was at and above the belt line. He stated that the plaintiff had not then complained of any pain in her groin, and that he had not found any bruises in the area where the hernia later developed. He was asked, “Q. Doctor, many things can cause hernias, isn’t that true?” and answered, “Yes, sir.” Inquiry was then made, “Q. Can you state, Doctor, and tell this jury as a medical certainty that this hernia was caused by the accident that Mrs. Bertram had?” to which he answered, “No, sir.” Counsel for defendant then started to renew his motion to strike, whereupon the court interposed with the statement that the record might show the reinstatement and overruling of the motion. On further cross-examination the doctor testified that a hernia caused by a blow does not always or necessarily appear immediately; that it doesn’t necessarily have to appear where the blow was received; and that a blow on or above the belt line can cause a hernia in the groin, including one which may gradually develop and appear some months later. He also stated that when he saw the plaintiff in his office on May 13, 1960 she felt much better in the abdomen, and that he found nothing positive at that time except some restriction of the neck.

At the close of the case the defendant offered Instruction No. A, the effect of which was to tell the jury that in arriving at its verdict it should not take into consideration the evidence relating to the hernia. The court refused to give the instruction, which refusal is likewise assigned as error.

The burden rested on plaintiff to show by substantial evidence the causal connection between the collision and the hernia, one of the alleged injuries for which recovery was sought. Berry v. Kansas City Public Service Co., 341 Mo. 658, 108 S.W.2d 98; Skadal v. Brown, Mo., 351 S.W.2d 684. During the course of our judicial history our view as to what constitutes substantial evidence of cause and effect has undergone a radical change. Originally it was held that a doctor’s opinion that the accident “might, could or would” produce a condition found on examination was sufficient; in fact, at that time a medical expert was not permitted to express an opinion that the trauma “did” cause the injury because, it was said, such an opinion would invade the province of the jury, whose duty it was to determine that ultimate fact. Taylor v. Grand Avenue Ry. Co., 185 Mo. 239, 84 S.W. 873; Glasgow v. Metropolitan Street Ry. Co., 191 Mo. 347, 89 S.W. 915; Roscoe v. Metropolitan Street Ry. Co., 202 Mo. 576, 101 S.W. 32. But in O’Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, 61, the Supreme Court pointed out that all that such an expert opinion amounted to was a mere possibility of cause and effect. With regard to the conflicting medical testimony present in that case the court remarked: “ * * * It may he said the jury may decide which of the experts it will believe, and then find accordingly. The difficulty is that, after thé jury has determined which expert it will believe and credits him, it comes to nothing, because what it has concluded to believe is merely that a certain thing 'might or could’ produce a stated result or condition. * * * On this record the jury might or could solve the problem solely by guessing. ⅜ * * The rule discussed in the preceding paragraph II should no longer be followed.”

Having breached the prior rule by its holding in O’Leary that the causal connection between the accident and the injury might be shown by the expert’s opinion that the one “did” -cause the other, the Supreme Court completed its destruction of the old rule in Kimmie v. Terminal R. R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561. The critical issue in that case was whether the sarcoma or cancerous bone tumor which subsequently developed was caused by .the accident. In answer to a hypothetical question plaintiff’s medical experts expressed the opinion that plaintiff’s fall “might, could or would” cause the condition from which plaintiff was suffering. On appeal the Supreme Court held that it was not improper to ask an expert witness if something might, could, or would produce a certain result, because “ * * * An expert’s view of possibility or probability is often helpful and proper,” and “ * * * Where there are other facts which tend to show an accident caused a certain condition, the assurance of an expert that it is scientifically possible is of some aid to the jury in determining what are reasonable inferences to be drawn from such facts. * * * ” But as to the sufficiency of such evidence the court said: “ * * * Assurance of possibility is not of itself, however, sufficient to make a submissible case, upon the issue of cause and effect, for a plaintiff who has the burden of proof upon that issue. * * * ” To the same effect see Derschow v. St. Louis Public Service Co., 339 Mo. 63, 95 S.W.2d 1173; Franklin v. Kansas City Public Service Co., 239 Mo.App. 151, 186 S.W.2d 546; and Moore v. Glasgow, Mo.App., 366 S.W.2d 475.

No doubt there are situations in which causal connection reasonably may be inferred without the opinion of a medical expert. Bell v. S. S. Kresge Co., Mo.App., 129 S.W.2d 932; Moore v. Glasgow, supra. Evidence of an obvious wound, as a cut or bruise, or an immediate bleeding, would justify an inference by a layman that the injury was caused by the accident. Der-schow v. St. Louis Public Service Co., supra. But under the circumstances attending this case it is clear that whether the accident of April 23, 1960 caused or contributed to cause the hernia first discovered on July 19, 1960, particularly in view of the initial and repeated examinations which failed to disclose such a disability, posed a question “for men learned in ■ the science of medicine. * * * ” Moore v. Glasgow, supra. No layman. could know or have any reasonable basis for an inference that plaintiff’s hernia resulted from the accident. Kimmie v. Terminal R. R. Ass’n of St. Louis, supra; Derschow v. St. Louis Public Service Co., supra.

It will be noted that when first asked to express an .opinion based upon reasonable medical certainty whether the accident was the competent producing cause of plaintiff’s hernia Dr. Niesen answered, “It could be. I couldn’t say.” Pressed further, all he would say was that, “ * * it would be about a 90 per cent chance that it was caused by (the accident) and 10 per-cent it wasn’t.” However favorable such odds might seem in some game of chance, a trial is not such a game, and an award of damages cannot be allowed to rest upon speculation and conjecture of that character. Were we to accept such an answer as constituting substantial evidence of a causal connection between an injury and the accident, then what of the odds of 60 to 40 ? Or SS to 45 ? All that such an answer amounted to, at best, was what the doctor first stated, that “It could be” that the hernia resulted from the accident. But if the doctor who was an expert in the field and who had treated plaintiff would not say with reasonable medical certainty that the hernia resulted from the accident, then certainly a jury composed of laymen would not be justified in making such a finding. State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428. As was said in O’Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, 61: “ * ⅜ ⅜ On this record the jury might or could solve the problem solely by guessing. * * * ”

The testimony that the hernia could have resulted from the accident may have been admissible to show a scientific possibility. Kimmie v. Terminal R. R. Ass’n of St. Louis, supra. But unlike Ketcham v. Thomas, Mo., 283 S.W.2d 642, there were no other facts here present which tended to show both that the accident caused the hernia and that negatived other possible causes. The doctor conceded, in fact, that many things could cause a hernia. And as noted, the rule is that expert testimony that a condition might or could have resulted from an accident, when standing alone and without other facts, is not substantial evidence from which a jury can find cause and effect. Kimmie v. Terminal R. R. Ass’n of St. Louis, supra; Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312; Baker v. Kansas City Terminal Ry. Co., Mo., 250 S.W.2d 999; Ketcham v. Thomas, supra. The court therefore erred in refusing to give the withdrawal instruction requested by defendant. Franklin v. Kansas City Public Service Co., 239 Mo.App. 151, 186 S.W.2d 546. It must be assumed that the jury took the testimony regarding the hernia' and the permanent disability (the unregenerated nerves) into consideration in assessing damages; and since such evidence must have considerably augmented the damages allowed, there is no basis for a remittitur. Kimmie v. Terminal R. R. Ass’n of St. Louis, supra; Franklin v. Kansas City Public Service Co., supra.

Defendant’s final assignment is that the court erred in permitting plaintiff’s counsel to argue and suggest damages and compensations for the first time in his closing argument. Of course, defendant had admitted liability, and it appears from the record that during the course of defendant’s counsel’s argument he conceded that plaintiff had suffered some bruises, so that for all practical purposes the only issue which remained for the jury to decide was the amount of damages to be awarded to plaintiff. The fact of the matter is that in his closing argument plaintiff’s counsel never suggested any amount which the jury should return. All that he stated was that in filing a lawsuit a “price” must be named in the petition and that in the instant case a figure of $25,000' was “picked,” but counsel added that the figure was only advisory, that the jury was not bound by it, that the figure to be awarded was up to the jury, and that all that plaintiff asked was fair compensation. As stated, the jury returned a verdict for $5,000. In view of the wide discretion afforded the trial judge in ruling both the impropriety and prejudicial effect of argument of counsel, and the deference generally paid to his rulings by the appellate court, Votrain v. Illinois Terminal R. Co., Mo., 268 S.W.2d 838, 844, we would be loath to hold that under the peculiar circumstances here present the court committed prejudicial error. By way of a caveat, however, it should be noted that in Shaw v. Terminal R. R. Ass’n of St. Louis, Mo., 344 S.W.2d 32, 36, 93 A.L.R.2d 265, the Supreme Court warned, “ * * * we consider it unfair and improper to permit plaintiff’s counsel to do this for the first time in his closing argument, when defendant’s counsel has made no argument as to amount. * * * ”

Plaintiff has filed a motion to dismiss the defendant’s appeal for failure to comply with Civil Rule 83.05(c), V.A.M.R. We find no such violation of the Rule as would justify dismissal.

For the reasons stated the plaintiff’s motion to dismiss defendant’s appeal should be overruled, the judgment should be reversed, and the cause should be remanded for a new trial on the issue of damages only. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, plaintiff’s motion to dismiss defendant’s appeal is overruled, the judgment is reversed and the cause remanded for a new trial on the issue of damages only.

RUDDY, P. J., ANDERSON, J., and FRANK D. CONNETT, Jr., Special Judge, concur.


author: SPERRY, Commissioner.

text:
    Robert Earl COMPTON, A Minor By Jack F. Compton, Next Friend, Plaintiff-Respondent, v. Donald P. BILLINGS, Defendant-Appellant.
    No. 24009.
    Kansas City Court of Appeals. Missouri.
    Nov. 25, 1964.

      Richard E. Martin and Hugh A. Miner, St. Joseph, for plaintiff-respondent.
    Price Shoemaker and William L. Culver, St. Joseph, for defendant-appellant.
   SPERRY, Commissioner.

Plaintiff, a minor, by his next friend, sued defendant, Donald P. Billings, for damages caused by plaintiff’s loss of a finger when it came in contact with a sharp piece of metal which protruded outwardly from defendant’s automobile parked in plaintiff’s father’s driveway. From a judgment in favor of plaintiff in the sum of $2,-500.00, defendant appeals.

Plaintiff pleaded as follows:
“6. The injury to the plaintiff was the direct and proximate result of the negligence and carelessness of the defendant in the following particulars:
“(a) Defendant had knowingly and wilfully permitted to remain and to be left exposed on his automobile a defective part, to-wit: a sharp projection of chrome strip, which he knew, or in the exercise of ordinary care, should have known would cause injury to the public, including the plaintiff, who came in contact with said projection.”

The accident occurred May 30th, 1962, when plaintiff was eight years of age. He lived with his parents in St. Joseph, Missouri. The residence faced west and his father’s car was parked on the concrete driveway, headed east. Behind it, defendant’s automobile was parked, headed in the same direction. The distance between the edge of defendant’s car and the edge of the! concrete driveway was about thirty-five inches. Plaintiff’s father and defendant were in the garage listening to the radio. Plaintiff got his bike out of the garage and, with his younger sister riding behind him, rode along-side and next to the parked cars, toward their rear, toward the street. His hands were on the handle bars. Plaintiff stated that he passed his father’s car safely, but that when he reached defendant’s car the bicycle began to wobble * * * “I got too close”, that it cut off his finger.

Plaintiff’s father stated that he and defendant were sitting in the garage; that the door was open; that plaintiff and his little sister got on the bike, rode towards the street, past witness’ car and disappeared from his view; that defendant said, “Oh! My gosh”, and went out that way; that witness followed; that plaintiff’s finger had been cut off; that he saw a sharp piece of t chrome sticking out from around the gas tank opening, on the left of the car; that it was three or four inches long; and that there was blood on the chrome piece.

Mrs. Fisher, defendant’s mother-in-law, stated that she visited in defendant’s home around the first of April, 1962; that she rode in and observed the automobile involved in this action; that she observed a piece of very sharp chrome sticking out from the car about two and one-half inches long; that defendant was present; that she told him about it; that defendant was three or four feet from her; that he turned and looked at it. She stated that she saw it, after that time, prior to the accident; that, on the day the accident occurred, she rode in the car and saw the chrome, with blood on it; that, otherwise, it was in the same condition that it had been when she first saw it. She stated that, in 1963, she talked with defendant about the accident and he told her that he remembered her mentioning the piece of chrome prior to the: time of the accident, but that he forgot to do anything about it

Defendant,, in his deposition, stated that after the accident occurred, he examined the protruding- piece of chrome; that it was “razor sharp”; that he saw plaintiff and his sister on the bicycle, on the north side of defendant’s car, riding toward the street, just before the accident occurred; that he did not warn plaintiff of danger; that Bobby .shouted; that defendant looked up and saw lhat his finger was hanging by a shred; -.that he had been injured by the chrome. He testified, in court, to the effect that he .saw plaintiff take his bicycle out of the :garage and head toward the street before -.the accident occurred; and that, after the accident, he pushed the piece of chrome down with his thumb.

Defendant contends that plaintiff’s petition failed to state, and that his evidence failed to show, facts sufficient to constitute a cause of action based on negligent tort.

Under this contention he argues that plaintiff was a trespasser on defendant’s property and that defendant owed him no duty whatever under a negligence analysis until his peril should have been discovered 'by defendant, except that he must refrain from doing him “wanton or wilful-inten-tional injury”. He relies on McVicar v. W. R. Arthur & Co., Mo., 312 S.W.2d 805, 65 A.L.R.2d 785. At page 812 of 312 S.W.2d the court discussed, defined, and differentiated between trespassers, licensees and invitees. Defendant is correct in his statement of the measure of care, or duty, that a land owner owes a trespasser. However, the court said that the rule is as stated because, since a trespasser’s presence is not to be anticipated, the property owner owes him no duty to take precautions for his safety (unless his presence and impending peril is discovered).

In this case, defendant parked his car on his brother-in-law’s driveway. He knew that these young children, plaintiff and his sister, his own niece and nephew, lived there and had a right to and did use the ■driveway as a place for play and amusement. They mounted the bicycle, in his presence, and proceeded to operate it along the driveway, beside his host’s car and defendant’s car, toward the street. He knew that the dangerously sharp piece of chrome metal protruded outward from the car for a distance of from three to four inches. In the exercise of ordinary care he knew, or should have known, that in passing along the narrow strip of concrete, north of his car, with one hand necessarily on each handle bar of the bicycle, plaintiff’s hand likely would come into contact with the sharp piece of metal, thereby injuring him. Bronson v. Kansas City, Mo., a Corp., Mo.App., 323 S.W.2d 526, 531; Garis v. Eberling, 18 Tenn.App. 1, 71 S.W.2d 215; 60 C.J.S. Motor Vehicles § 349, page 822. Furthermore, he knew or should have- known, in the exercise of ordinary care, that the protruding chrome could or would cause injury to an ordinary adult pedestrian on the public streets as the car passed him, or as such a pedestrian might pass along the car, if it was parked on the public streets or on private property. Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55-56; Shafir v. Sieben, Mo., 233 S.W. 419, 423, 17 A.L.R. 637.

Plaintiff, in the McVicar case, was watching an operation of a stationary automobile transport truck. The operator of the equipment knew that plaintiff was near the truck but, unknown to the operator, plaintiff stuck his head and upper chest into the truck and was injured by the moving parts of the machinery. The operator of the truck was oblivious of the danger to plaintiff, who was a trespasser as that term is defined. Defendant owed him no duty because its agent was busy and did not observe plaintiff’s change of position from one of safety to one of peril until after the casualty had occurred.

The facts in the case at bar are not at all similar to those involved in the McVicar case. Here, plaintiff was not a trespasser: He had a right to be where he was when he was injured. It was his father’s and plaintiff’s home. Defendant watched him, in broad daylight, as he approached the place of danger, with his left hand where it would likely come into contact with the chrome, which he knew was there. He saw the casualty occur. Even if plaintiff had been a trespasser, defendant owed him the duty to warn him of the danger of which he knew and of which plaintiff had no knowledge, when he saw him coming into a position of peril and knew that he was oblivious thereof.

Defendant claims error in that the court overruled his motions for directed verdict because plaintiff plead and attempted to prove two repugnant theories of liability regarding the same act, to-wit: “negligent and intentional (wilful), and said causes of action therefore destroyed each other * * * under the doctrine of felo de se.”

We have previously set out the pleading referred to. Defendant relies on the law as declared in O’Brien v. St. Louis Transit Co., 212 Mo. 59, 110 S.W. 705, 706. There it was alleged that defendant’s agent wrongfully struck and beat decedent with a pistol, and shot him, inflicting injuries from which he died; and that said beating and shooting was done negligently and with criminal intent. The court held that the allegation amounted to a felo de se because the proof of the one disproved the other.

That is not the situation here. In essence, plaintiff alleged that, by reason of defendant’s negligence, he had, with knowledge thereof, permitted a sharp protruding chrome strip to remain on his automobile when, in the exercise of ordinary care, he should have known that it constituted a danger to plaintiff.

Charges of negligence and wilfulness are not necessarily repugnant because wilful conduct may, and often does, include the element of negligence. Greene v. Morse, Mo.App., 375 S.W.2d 411, 417; Evett v. Corbin, Mo., 305 S.W.2d 469, 472. Here, the cause of action pleaded and submitted was clearly based on negligence. It is not alleged that defendant set a dangerous trap for his nephew, or that he intentionally caused his injury. It was alleged, and the evidence showed, that defendant knew of the protruding metal strip which, in the exercise of ordinary care, he should have known would cause injury, and that he negligently failed to remove the danger, or warn plaintiff of the condition.

It is urged that plaintiff’s main instruction is fatally erroneous in the following respects:

“(a) Said instruction improperly declares the law because the evidence indicated plaintiff was a trespasser on defendant’s personal automobile property;
“(b) Said instruction is improper because there was no substantial evidence of probative value to support its provisions that the defendant knew, or should have known, of any ‘condition’, ‘danger’, ‘obvious danger’ or ‘obviously dangerous condition’ on defendant’s personal automobile property, and said instruction omitted the term ‘inherently dangerous’;
“(c) Said instruction is improper, conflicting, misleading and confusing and improperly declares the law by referring to a sharp piece of chrome protruding two and one-half inches to four inches as a ‘condition’ upon which liability could be predicated if said condition had ‘existed for a sufficient length of time prior thereto that the defendant in the exercise of the ordinary care should have known of such condition’; and then by later in the same instruction referring to said chrome as constituting an ‘obvious danger’ and further referring to said condition as a ‘danger’ and as as ‘obviously dangerous condition’, there being no substantial evidence of probative value that defendant had notice of any such condition or that it was in fact ‘obvious’ or an ‘obvious danger’.”

From our statement of the evidence and of the applicable law we must hold that de-fgndant’s criticism of the instruction is not well made.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: RUARK, Presiding Judge.

text:
    ACORN PRINTING COMPANY, a Corporation, Plaintiff-Respondent, v. Leonard BROWN and Benton Whitaker, d/b/a County Directory Service, Defendants and Third-Party Plaintiffs, Respondents, v. JOPLIN INVESTORS, INC., a Corporation, Third-Party Defendant and Defendant, Appellant.
    No. 8317.
    Springfield Court of Appeals. Missouri.
    Nov. 17, 1964.

      Jack Fleischaker, Roberts & Fleischaker, Joplin, for appellant
    Rex Titus, Richart, Titus & Martin, Joplin, for respondents Leonard Brown and Benton Whitaker.
   RUARK, Presiding Judge.

This is an appeal by Joplin Investors, Inc., from an order overruling what the appellant in its brief terms a motion to set aside a judgment for irregularity. The judgment against which the motion is directed was rendered on January 16, 1961, in what we will refer to as “the main case.” In that case plaintiff, Acorn Printing Company of Tulsa, Oklahoma, had judgment against Joplin Investors, Inc., in the amount of $2,463.30.

We cannot here go into the facts and merits of the main case in order to determine whether or not ordinary judicial error was committed. But for an understanding of the questions with which we are confronted, it is necessary to refer to the pleadings and relate some of the facts and circumstances which appear from the record in the main case in order to show the position of the parties, their conduct, knowledge, and knowledgeability, as such may may affect this case.

Joplin Investors was originally organized as a general business corporation with an authorized capital stock of thirty-thousand-dollars. Apparently this company was engaged in the business of publishing a county directory, which such venture was not financially successful and had resulted in a loss which the corporation (later) claimed in its income tax. At the onset of the matters with which we are here concerned, two men, Brown and Whitaker, appear to have been the sole remaining stockholders of the corporation. On or sometime prior to April 7,1954, one Myron McIntosh, who described himself as being engaged “in the real estate business,” approached Brown and Whitaker and the result was that on April 7, 1954, an agreement was reached whereby McIntosh became the owner of all the stock except ten (or possibly ten each) shares held by Brown and Whitaker. McIntosh was made chairman of the board, and thereafter he appears to have handled the financial affairs and to have written all the checks of the corporation. On April 30 the capitalization was increased to two-hundred-fifty-thousand dollars (McIntosh testified that he was interested in buying the corporation so that it might be operated for the purpose of making loans).

In the meantime, on April 10, 1954, an agreement was entered into between Joplin Investors as first party and Brown and Whitaker as second parties in reference to the publication of a new directory. This agreement recited in substance that the Joplin Investors was the owner of the copyright of “Rural Directory Service.” It employed Brown and Whitaker to operate such service under an arrangement whereby the policy and management of said service was to be determined by three votes, one each by Brown and Whitaker and one by Joplin Investors. Brown and Whitaker agreed to make annual accountings and the profits of the corporation were to be divided one-third each. Joplin Investors was to deposit to the account of “Rural Directory Service” an initial two-thousand dollars for the purpose of buying materials and supplies, which deposit was to be accounted for by Brown and Whitaker. This agreement was signed on behalf of Joplin Investors by Myron A. McIntosh, chairman of the board, and Leonard R. Brown, as president. It was also signed by Brown and Whitaker as individuals. Thereafter, there were various financial transactions which involved checks and/or deposits by Joplin Investors to the Directory Service. Each of these checks was signed by McIntosh as chairman of the board. In one transaction Joplin Investors borrowed two-thousand dollars at the bank and put up as collateral accounts receivable of $3,226.00 of the Directory Service (consisting of contracts for advertising in the Directory Service). The major portion of this two-thousand-dollar note was later paid by receipts of payments on such contract advertising in the new directory. Acorn Printing Company of Tulsa agreed to print the new directory. On September 17, 1956, a check of Joplin Investors for five-hundred-dollars (signed by McIntosh) was issued to County Directory Service (apparently the name was changed), which check was thereafter endorsed by the A corn Printing Company, On the same day, Brown and Whitaker gave their promissory note to Acorn Printing Company in the principal amount of $2,~ 422.50, payable in installments of one-hundred-dollars per month. This note was actually prepared by McIntosh but was signed: “COUNTY DIRECTORY SERVICE by Leonard Brown, Benton Whitaker.”

Thereafter, various checks were issued by Joplin Investors (signed by McIntosh) to the Directory Service. Some of these checks were endorsed by Acorn Printing Company, and there seems to be no question that they were for payments on the Acorn note. Finally default was made, and there followed an interlude of dispute as to whether or not Brown and Whitaker were liable on the notes personally or whether, as they contended, the note was signed by them as agents for Joplin Investors. Finally Acorn brought suit for the balance on the note against Brown and Whitaker. That is the main case with which we are involved.

The petition was signed by Max Patten as attorney for Acorn. Brown and Whitaker responded by answer filed by Attorney Titus charging that Joplin Investors was the owner of the Directory Service and the note was signed by them as agents of Joplin Investors, which agency was disclosed and known to plaintiff Acorn. Accompanying such answer was a third-party petition which charged that Joplin Investors was owner of the Directory Service; that Brown and Whitaker executed the note as agents for the corporation, which had received the benefits thereof; that Joplin Investors acknowledged the indebtedness and thereafter made payments totaling five hundred fifty dollars on such note. The petition prayed that if judgment be obtained against Brown and Whitaker they have judgment over in equal amount against Joplin Investors as the principal debtor.

Thereafter, on October 28, 1958, Joplin Investors filed its answer in which it denied agency; and also in effect asserted that the contract between Joplin Investors and Brown and Whitaker in reference to Rural Directory Service was ultra vires. This answer was signed by Max Patten, who was also attorney for plaintiff Acorn. On June 5, 1959, Mr. Patten, as attorney for plaintiff Acorn, filed amended petition in which he alleged that Brown and Whitaker executed the note as individuals “and/or” acting as agents for Joplin Investors, and prayed for judgment against all three defendants. To that pleading Brown and Whitaker again responded with an answer, as before, that they had signed the note as agents of Joplin Investors, which was liable for the note. They also included a cross-petition against Joplin Investors praying for seven-hundred-dollars expense required in defending the action and, in event of judgment against them, for judgment over against Joplin Investors in equal amount. Joplin Investors filed separate answer denying agency and asserted that the employment agreement hereinabove referred to was void as to it because it was signed by defendants Brown and Whitaker while officers of the defendant Joplin Investors; the answer also asserted that the contract was ultra vires. This answer also was filed by Max Patten.

The case was tried to the Court. Early in the trial, the following colloquy was had:

“Mr. Patten: There are defendants Brown and Whitaker, and then there is another defendant, Joplin Investors, and we are fighting among ourselves here and not with the plaintiff in the case.
“The Court: In other words, Mr. Titus represents the defendants Brown and Whitaker and Mr. Patten represents the defendant Joplin Investors, Inc.
“Mr. Patten: That is right.
“The Court: And also the plaintiff Acorn Printing Company?
“Mr. Patten: But nobody has any controversy other than who is stuck.”

Patten called a witness for plaintiff Acorn. Then defendants Brown and Whitaker were called and examined by their attorney Titus and cross-examined by Patten. Then McIntosh (who is principal owner of Joplin Investors) was called and examined fully in behalf of Joplin Investors by Patten and was cross-examined by Titus. It was the contention of Mr. McIntosh that Joplin Investors had no actual ownership of or interest in the Directory Service; that the moneys paid to or on behalf of the- Directory were loans, and Brown and Whitaker were not authorized as agents of the corporation. On January 16, 1961, the court rendered judgment showing appearances of plaintiff Acorn by Patten, of defendants Brown and Whitaker by Titus, and of Joplin Investors (designated as third-party defendant) by Patten. The judgment was in favor of plaintiff Acorn and against Joplin Investors. Brown and Whitaker were discharged of liability.

Thereafter, plaintiff Acorn filed motion for new trial as to defendants Brown and Whitaker. The basis of the motion was that the evidence showed Brown and Whitaker had agreed to stand personally responsible on the note and that they were not authorized to sign it for Joplin Investors. This motion was signed by Patten. Joplin Investors filed a motion for new trial, the basis of which was (1) Brown and Whitaker had informed plaintiff Acorn that they would stand personally liable, (2) the corporation had no authority to engage in the type of business involved, (3) Brown and Whitaker knew they had no authority to execute the note for the corporation, (4) the business involved was ultra vires and beyond the corporate powers, (5) at the time of execution of the contract to operate the Directory Brown and Whitaker were officers of the corporation and contracted with themselves. This motion was signed by Jack Burress as attorney for Joplin Investors. This is his first appearance on the scene. Both motions were overruled. Subsequently Patten, representing Acorn, and Burress, representing Joplin Investors, appealed to this court. The appeals were not perfected and both were subsequently dismissed.

On December 3, 1963, Joplin Investors instituted the present proceeding by filing motion to set aside the judgment for irregularity and for error of fact. This time Joplin Investors is represented by the present attorneys, Roberts and Fleischaker. The motion recites (1) that when the original judgment was rendered, both plaintiff Acorn and (designated as) third-party defendant Joplin Investors were represented by Max Patten in violation of Missouri Supreme Court Canons Rule 4.06, V.A.M.R., (2) the judgment was not in accordance with the pleadings, (3) the judgment was erroneous in matter of fact in that the same attorney represented plaintiff Acorn and Joplin Investors; that their interests were in conflict, and that such attorney did not make full disclosure of such conflict to movant Joplin Investors. The motion concludes with a prayer to stay execution and set aside the judgment for irregularities and error of fact. Attached to such motion are two affidavits by Myron A. McIntosh on behalf of Joplin Investors, one verifying the motion “to the best of his knowledge and belief,” and the other reciting that at the time the suit was pending “neither I nor other members of the Board of Directors of Joplin Investors, Inc., were advised by Mr. Max Patten that his representation of Acorn Printing Company, the plaintiff in that lawsuit, and Joplin Investors, Inc., a third-party defendant in that lawsuit, could result in a verdict in favor of plaintiff Acorn Printing Company and against the defendant Joplin Investors, Inc.”

No evidence was offered on the motion. At the conclusion of arguments the court made certain findings and rulings, those pertinent to our question being as follows:

“The issues in this case actually were tried between the defendants, that is, between Leonard Brown and Benton Whitaker against the Joplin Investors, Incorporated. The situation as to representation of the Acorn Printing Company and Joplin Investors, Incorporated, by Mr. Patten was discussed. I had full knowledge of it. It was agreed by all the parties involved that the note involved in the suit was owed to Acorn Printing Company by either Brown and Whitaker or Joplin Investors, Incorporated, or both, and my recollection is that the matter came up at a pre-trial conference, and my recollection further is that Mr. Myron McIntosh was present at the pre-trial conference. * * *
“I think there could be no question but what Mr. McIntosh was fully aware that a judgment could be entered against the Joplin Investors, Incorporated, and that he knew that Mr. Patten had originally brought the suit by Acorn Printing Company.
“The record or transcript actually should reflect that there was testimony that both Brown and Whitaker were officers of the corporation and that was part of the defense of the Joplin Investors that they should not have been permitted to make a contract between themselves and the corporation.
“Under all the circumstances I don’t think the situation of this should have existed, but in this case there was just no question but what everybody understood what the situation was. For that reason I think these motions will be overruled.”

No motion for new trial was filed.

The contentions made in appellant’s brief, if strictly applied, are based upon irregularities patent on the face of the record (Rule 74.32, Section 511.250 RSMo 1949, V.A. M.S.) in that such record shows that Patten represented both plaintiff Acorn and ultimate defendant Joplin Investors, Inc., whose interests were adverse; and that such adverse representation was contrary to the established form and mode of procedure for the due administration of justice. Appellant asserts that the fact that McIntosh (Joplin Investors) knew of the dual representation and knew that a judgment could be rendered against it is not sufficient to heal the wound so made in the established mode of procedure. The inference from such contention is that where the record shows dual representation of adverse interests it should affirmatively show full disclosure and express consent; and if the record shows such dual representation without such further showing of full disclosure and consent, we must presume that there was none and set the judgment aside without further ado. Some of movant’s arguments, especially that made before the court, also spill over into the realm of that which concerns motions in the nature of writ of error coram nobis— that is, relating to a fact not known to the court or the movant (and not discoverable by movant through the exercise of diligence) which, had it been known would have prevented entry of judgment. The basis of this is that while the dual representation of adverse interests in this case is a matter of record, the matter of full disclosure and express consent required by Rule 4.06 involves the existence or non-existence of a fact.

Respondent’s very thorough and extensive brief points out various reasons why we cannot in this case be concerned with the “error of fact” questions. It also asserts reasons why the ruling of the trial court cannot be set aside on the ground of irregularities patent, one of which is that the rules of conduct provided by the Canons of Ethics are not rules of civil procedure, and the motion based on irregularities patent is not the proper way to reach judgments in which misconduct of counsel is involved. We accord respondent’s suggestions considerable respect and agree that some of them have merit; but this case involves the integrity of the adversary system through which the administration of justice is accomplished and hence the integrity and effectiveness of our judicial processes. Because of this we are disposed, in this case, to disregard all matters of form, procedure, remedy, or so-called “technicalities” and decide this case (the motion to set aside) on the merits as we see them. We have not been cited to, nor have we found, any case which involved the factual situation we have here presented under a similar motion. Jedwabny v. Philadelphia Transp. Co., 390 Pa. 231, 135 A.2d 252, has some similarity. In that case the trial court sustained a motion for new trial on the ground of dual representation and was upheld by a divided court. There is also some similarity, as to the motion, in Patrick v. Bryan, 202 N.C. 62, 162 S.E. 207.

Each client is entitled to the undiluted and undivided loyalty of his lawyer. It is not just a pious platitude to say that a lawyer cannot, and may not attempt to, represent clients whose interests are conflicting and adverse, even though the motives of the lawyer may be honest and sincere. However, some proceedings can be more adversary in form than fact (Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565, 568); and it sometimes happens that the conflict of interest tends to be more technical than actual. In such a situation the representation of adverse interests can be only after a full and complete disclosure and with the express consent of all parties concerned. We also apprehend that the interests can be so adverse and conflicting (or the possible collision or collusion between the interests can be so against public policy) that there could not properly be any dual representation even with and after full and complete disclosure and consent. In such a situation the court has inherent power to, and should, intervene to prevent it.

How adverse and conflicting were the interests of Acorn (whom Patten represented as plaintiff) and Joplin Investors (whom Patten represented as one of the defendants) ? Respondent argues that, since it had been agreed by all parties that Acorn was entitled to recover on its note from one or the other of the defendants, there was no conflict as to its (Acorn’s) rights; that there might be a recovery against Brown and Whitaker as agents or principals, or against Joplin Investors as principal, but not against both. As a general proposition of agency the contention in respect to recovery against one but not both is correct.

But this general rule is subject to exceptions, some of which might involve intention, agreement, or conduct of the parties. There is also the possibility that Acorn might have raised the question that all three defendants were bound as parties to a joint venture or partnership. We do not decide this or pursue these suggestions further because we are not concerned with the merits of the main case. We do suggest that if Acorn had the right to recover against all three parties it was the duty of Patten to assert and contend for it. But if there was the duty (and the failure) to assert such, the injured party was Acorn, not Joplin Investors — and Acorn is not complaining. We do find that in the trial court some letters were introduced which were at least thought to be beneficial to Acorn as against Brown and Whitaker but were probably not competent (on the question of agency) against Joplin Investors. Hence the position of Patten on introducing evidence favorable to one client and incompetent as to another placed him in an apparently conflicting position. However, it must be remembered that the case was being tried to the court (not a jury) after a full explanation of how the parties stood and what the real issue between the parties then was; and it should not have been difficult for the court to separate the evidence, admissible as to one and not as to the other, and so consider it.

Rightly or wrongly, insofar as Acorn was concerned, the case was tried on the admitted and agreed theory that Acorn was entitled to judgment on its note and the question was simply whether that judgment should be rendered against Brown and Whitaker or Joplin Investors. As to this McIntosh (for Joplin Investors) was placed on the stand and examined extensively. He was given full opportunity to and did introduce his (Joplin Investors’) evidence and present his theory as to why Brown and Whitaker were liable and Joplin Investors was not liable.

Looking at the proceedings as a whole, we conclude that insofar as the trial of the main case was concerned the interests of plaintiff Acorn and defendant Joplin Investors were adverse, but on the theory upon which all parties tried the case the conflict was more technical than actual.

Even though the conflict was more technical than actual, there is still the question of full disclosure and consent. We consider what disclosure was required in these circumstances: The law does not require the doing of a useless thing. It was not necessary to tell McIntosh what he obviously already knew. We cannot consider him as an infant, a moron, a distraught wife in a divorce case, or an uneducated person. He was a business man; the record indicates he was a man of affairs. If we consider his affidavit as evidence, we can accept the fact that Patten did not tell him that a judgment could be rendered against him, but we cannot swallow the implication that he did not know that such judgment could be rendered. He did not enter the case until after the third-party petition was filed. The petition prayed for judgment against his company. If he did not understand there was a possibility judgment could be rendered against his company, why seek an attorney? Further, the record discloses that he was present at the pre-trial conference and thereafter attended the trial. He heard the position of the parties explained in open court. Our conclusion is that he was fully familiar with the case and all its possibilities. Certainly he knew that a judgment could be rendered against his company when he employed Attorney Burress to file the motion for new trial; yet in that motion he did not complain that he was not so informed. We think the record justifies the conclusion that he was fully cognizant of the situation of the parties and what might result from this lawsuit.

As to consent: It was the movant here (through McIntosh) who went to and employed plaintiff’s counsel to (also) represent Joplin Investors after the notice conveyed by the third-party petition. McIntosh does not contend that he did not know Patten then represented Acorn. We think it is a fair inference that he employed counsel for the plaintiff hoping thereby to secure an advantage by having plaintiff’s attorney so “trim his sails” in the conduct of his case in order to cast liability upon the other defendants Brown and Whitaker. We believe that it was a mistake for Patten to attempt to represent both Acorn and Joplin Investors under the circumstances shown here. We think it was poor judgment on his part but, proper or improper, the law and the Canons which condemn the representation of adverse interests is for the protection of the lambs, not the wolves; and the fact that the wolf has been caught in the lamb-fold is no reason why the lambs should be penalized. See dissenting opinions of Bell and Mus-manno, JJ., in Jedwabny v. Philadelphia Transp. Co., supra, 390 Pa. 231, 135 A.2d 252. As stated by Judge Lamm in Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048, loc. cit. 1055:

“ * * * General rules of court, like general principles of law, are subject to exceptions when justice cries out for the exception. Court rules are mere ends to the attainment of justice, and are not to be twisted into instruments of injustice. Courts, about the exalted office of dispensing justice, are not to have their functions starved and atrophied by a mere phrase or rule, in an exceptional case calling for a suspension of the rule as a debt due to justice.”

We do not propose to allow our Canons of Ethics to be used as tools by those who seek to pervert their purpose. It is our conclusion that the movant is in no position to claim that there was either lack of disclosure or consent and that the judgment of the Circuit Court should be affirmed. So ordered.

STONE and HOGAN, JJ., concur.

      . Weatherford v. Spiritual Christian Union Church, Mo., 163 S.W.2d 916; Robb v. Casteel, Mo.App., 340 S.W.2d 180, 184; Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 140; Murray v. United Zinc Smelting Corp., Mo., 263 S.W.2d 351, 354.

      . For definitions and distinctions between motions for irregularity patent and motions in nature of writ of error coram nobis, see Edson v. Fahy, Mo., 330 S.W.2d 854; Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; Chenoweth v. LaMaster, Mo.App., 342 S.W.2d 500; Murray v. United Zinc Smelting Corp., Mo., 263 S.W.2d 351; Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1; In re Jackson’s Will, Mo.App., 291 S.W.2d 214; 28 Mo.L.Rev., pp. 286 et seq. (1963).

      . Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731(12); Moffett Bros. Partnership Estate v. Moffett, 345 Mo. 741, 137 S.W.2d 507, 511; National Hollow Brake Beam Co. v. Bakewell, 224 Mo. 203, 123 S.W. 561, 567; Annot., 154 A.L.R. 501.

      . Canons of Ethics, Mo.Sup.Ct. Bule 4.06; Canons of Professional Ethics No. 6, American Bar Association; In re Butler, 358 Mo. 796, 217 S.W.2d 563, 574; In re Pfiffner’s Guardianship, Mo.App., 194 S.W.2d 233, 236; In re Schield’s Estate, Mo., 250 S.W.2d 151, 158; In re Conrad, 340 Mo. 582, 105 S.W.2d 1, 13. As to the test of inconsistency in employment, see Hoffman v. Hogan, 345 Mo. 903, 137 S.W.2d 441, 446.

      . 7 C.J.S. Attorney and Client, § 47, p. 827 ; 7 Am.Jur.2d, Attorneys at Law, p. 141; 14 Am.Jur., Courts, § 171, p. 370; Jedwabny v. Philadelphia Transp. Co., 390 Pa. 231, 135 A.2d 252, 254; Boyd v. Second Judicial District Court, 51 Nev. 264, 274 P. 7, 8; see State ex rel. Headrick v. Bailey, 365 Mo. 160, 278 S.W.2d 737(12); Logan v. Logan, 97 Ind.App. 209, 180 N.E. 32, 34.

      . In American-Canadian Oil & Drilling Corp. v. Aldridge & Stroud, Inc., 237 Ark. 407, 373 S.W.2d 148, 151, it was held that where the maker of the note admitted its validity, the attorney did not represent conflicting interests in acting for both holder and maker.

      .3 C.J.S. Agency § 248, p. 175, § 215, p. 119; Grether v. Di Franco, Mo.App., 178 S.W.2d 469(5); Bovard v. Owen, Mo.App., 30 S.W.2d 154(7); Caruthersville Hardware Co. v. Pierce, Mo.App., 229 S.W. 238(2); Hunt v. Sanders, 313 Mo. 169, 281 S.W. 422(3).