author: WOLFE, Judge.

text:
    William MILLER, a Minor, by Forrest Miller, His Father and Next Friend (Plaintiff) Respondent, v. Mattie DOWLING (Defendant) Appellant.
    No. 30967.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Evans & Dixon, John C. Shepherd and Paul V. Gilbert, St. Louis, for appellant.
    Marvin L. Dinger, St. Louis, for respondent.
   WOLFE, Judge.

This is an action to recover damages arising out of personal injuries. The injuries were sustained when a bicycle upon which the plaintiff was riding came into collision with an automobile operated by the defendant. There was a verdict and judgment for the defendant, but the trial court sustained plaintiff’s motion for a new trial, and the defendant has appealed.

The evidence presented by the plaintiff consisted, first, of the testimony of the plaintiff William Miller. He stated that he was eleven years old at the time of the accident, which occurred on the afternoon of September 9, 1959. He was riding his bicycle southwardly on Hamilton Avenue in the City of St. Louis. His five-year old brother was seated on the back fender of the bicycle.

They had gone down a slight incline to a point in front of a drive-in theater, where the street leveled off, but beyond that, in the direction of travel, it started uphill again. The street was a two-lane street, and he was close to the center of it. He said that he heard a horn sound just before the accident. He said that his left leg was struck by defendant’s automobile, and his bicycle fell to the right. As it hit the pavement it was to the right of the center of the road. He fell with the bicycle on top of him, but got up.

His home was nearby, and his father and aunt came to the scene of the accident. His mother later took him to a Dr. Kast-ning. He stated that he had to stay in bed for a while, and lost eleven days of school, which started on the following Monday. He said that he applied hot towels to his leg “for a week, two weeks, a week and a half, I imagine.” He was asked on cross-examination if his bicycle started wobbling from side to side before the accident happened, and he said he did not remember. He was recalled, after a luncheon recess, by his lawyer, and said that he remembered that he was traveling in a straight line and on the right side of the road.

A police officer called to the scene stated that, according to the statement of the parties, the bicycle hit the side of the automobile. He said that there were no witnesses other than the parties to the accident. Two boys who were in the parking lot of the drive-in theater at the time of the accident did not see the actual collision. One of them said that he saw the car push the bicycle about two car-lengths, and the other said that he saw it push the bicycle about ten feet. One of them said that a boy was riding on the handlebars of the bicycle.

The mother of William testified that she was employed by a drug store and was working at the time of the accident. She said she went home as soon as she heard of it. She cleaned the boy up and took him to Dr. Kastning, who was a customer of the drug store where she worked and had his office on the floor above.

Dr. Kastning described the treatment he gave the boy and stated that he recommended to his parents that they should get a lawyer. He stated that he did not recommend the lawyer employed by the parents of William, and that he did not know their lawyer prior to his employment in the case. On the question of suggesting a lawyer, he stated in part as follows:

“Q. Have you been paid, Doctor?
“A. They paid me some, yes—
“Q. And as I understand it, sometime in October you explained to them not to worry about it, you would work it out with a lawyer, is that the substance of it?
“A. No, it wasn’t the substance of it. If they do get a lawyer and we are assured of getting paid for services we will go ahead and give the boy what he needs.
“Q. But if some lawyer will guarantee you will get paid you would go ahead ?
“A. No, they don’t guarantee — I wish they would.
“Q. What do you mean by ‘guarantee’?
“A. They generally pay the doctor bill if they win the case, and if they don’t pay — it’s charity.
“Q. It’s to your interest to win the case?
“A. Well — yes.”

Defendant’s evidence was that she had turned south on Hamilton Avenue and she saw the boys on the bicycle as she was going toward them, in the same direction of travel. Her speed at the time she was approaching them was 20 miles per hour. She sounded her horn and the bicycle pulled to the right of the road. She then pulled to the left past them, and traveled very slowly. She noticed the bicycle wobbling and stopped on the left side of the road, as the bicycle came toward her car. William put his hand out against the right fender, and the bicycle fell to the right with the boys on it. The only mark on the car was William’s handprint in the dust on the fender. The boy did not appear to be hurt. The defendant’s brother, who was a passenger in the car at the time of the occurrence, testified for the defendant, and his testimony as to the material facts was about the same as the defendant’s.

The supervising principal of the school testified on behalf of the defendant. He had the school records, which showed that school'actually started the day before the accident, and that William Miller was absent then and on the day of the accident, but from the following Monday on he had a perfect attendance record for two weeks, and then he was absent for two days.

As stated, the jury returned a verdict for the defendant, but the trial court sustained plaintiff’s motion for a new trial on five specified grounds. The first of these is as follows:

“The Court erred in permitting the introduction of irrelevant, immaterial and prejudicial evidence offered by and on behalf of defendant — specifically, allowing defendant to introduce evidence concerning the whereabouts of a witness not then in the courtroom, although proper objection had been made by plaintiff’s counsel.”

The matter covered by this assignment of error arose when the defendant started to put on her evidence. Plaintiff’s lawyer, out of the presence of the jury, said to the court that there was a possibility that defendant’s counsel might make a statement “concerning the whereabouts of one of the passengers in the automobile.” He asked the court to instruct defendant’s counsel not to make such a statement in the presence of the jury “unless he is able to elicit it from a witness”. Counsel for the defense then agreed that such was the proper way to go about the matter.

The defendant testified that her brother was in the car with her, and that he lived in Oklahoma City. The testimony was interrupted by an objection on the part of plaintiff’s counsel. Defendant’s counsel then stated to the court that it was his responsibility to account for a failure to produce a witness more available to him than to the plaintiff’s counsel, and that if he failed to do so, plaintiff’s counsel might draw unfavorable inferences from the absence of the witness. The court then asked plaintiff’s counsel if he would agree not to mention the absence of the witness, and plaintiff replied that he would not so agree.

The witness testified that she went to the railroad station, the second morning of the trial, to meet a train upon which her brother was to arrive. She was informed that the train had been rerouted because of a wreck on the line, and that it would not be in until 1:00 p. m. There was another objection by plaintiff’s counsel, which the court sustained. The court then informed defendant’s counsel that the court would wait for the arrival of the witness and instructed the jury to disregard the evidence relative to the train and the brother. Nothing more was requested of the court by plaintiff’s counsel, and the witness did later appear and testify.

We are not enlightened in any way by the plaintiff as to how this could possibly have prejudiced plaintiff’s case, nor does anything in the proceedings that took place suggest to us that prejudice to the plaintiff’s case might result therefrom.

This assignment was without merit and cannot support the granting of a motion for a new trial.

The next assignment of error upon which the court granted a new trial is as follows :

“Counsel for defendant injected irrelevant, immaterial and prejudicial matters into the case, specifically, defendant’s counsel stated, in his opening statement and on numerous occasions throughout the trial, that the case was offered to plaintiff’s counsel by Dr. H. E. Kastning, although defendant’s. counsel, during the trial admitted to plaintiff’s counsel that he knew that this was not true, but that he had been instructed to inject these matters into the lawsuit by the insurance carrier he was representing.”

There is nothing in the record to support this assignment. There is no statement anywhere in the record that the doctor “offered” the case to plaintiff’s counsel. During defendant’s opening statement, the following exchange took place. Defendant’s counsel stated: “The evidence will show that they went to Dr. Kastning, and, of course, we do not know what went on in there, but, at any rate, Dr. Kastning suggested that they get Mr. Dinger—.” At that point Mr. Dinger, plaintiff’s counsel, stated: “I object to that. I hope he has some information that Dr. Kast-ning did suggest he get me * * to which defendant’s counsel replied, “This information comes from Mr. Miller himself.” The objection was sustained, and the matter was not again mentioned throughout the trial except by plaintiff’s counsel in his closing argument. Mr. Miller was never called as a witness. This was mentioned in defendant’s argument.

As for the alleged statement made during the trial by plaintiff’s counsel, there is nothing in the record in relation to this, and we are confined in our review to the record and not to alleged facts contained in the brief and unsupported by the record. We take the record as we find it, and we neither add to nor subtract from it. In re McMenamy’s Guardianship, 307 Mo. 98, 270 S.W. 662, l. c. 668; Wilson v. Motors Insurance Corporation, Mo.App., 349 S.W.2d 250; E. C. Robinson Lumber Company v. Lowrey, Mo.App., 276 S.W.2d 636.

We find nothing meriting a new trial in the foregoing point.

The third assignment of error upon which the court granted a new trial is as follows:

“The defendant introduced incorrect evidence highly prejudicial to plaintiff’s cause — specifically, incorrect records were introduced and testified from by defendant’s witness concerning plaintiff’s absence from school at the time of and following the accident.”

This refers to the school records introduced by the defendant. The witness had brought records showing William’s attendance for the entire year of 1959. The first records that he referred to covered the school year 1958 and 1959. This did not include the records for September, 1959, which were in the book for the school year 1959 and 1960. When this error was disclosed, he used the proper book, which covered the period in question. The mistake was completely understood, and no objection of any kind was made. There was nothing erroneous connected with the matter except an obvious and admitted mistake by the witness. So the matter could have had no effect whatsoever upon the trial.

The fourth assignment upon which the motion for a new trial was sustained is as follows:

“Defendant’s counsel erroneously commented on matters of pleading which had been previously ruled inadmissible — specifically, defendant’s counsel commented upon the nature of the injuries and the amount of prayer as included in plaintiff’s petition in the final argument all to the prejudice of plaintiff.”

There is no reference to the pleadings in the defendant’s counsel’s argument, and he had a perfect right to comment upon the injuries which were in litigation.

This assignment is also without merit.

The last assignment on which motion for a new trial was sustained is as follows:

“Defendant’s counsel commented in his closing argument that the entire plaintiff’s case was a fraud upon the jury and the Court, including in his comment the unquestionable inference that plaintiff’s counsel was the instigator and perpetrator of the fraud, all to the prejudice of plaintiff.”

Again, the assignment is not borne out by the record. The argument of defendant’s counsel pointed out that an ordinary bruise had been exaggerated out of all proportion, and that there were gross discrepancies in the plaintiff’s case. This was true. It is also true that there was not an objection made by the defendant’s counsel.

The plaintiff argues that the trial court has wide discretion in granting a new trial, even though the errors complained of were not properly raised or preserved for review. We are cited to Supreme Court Rule 79.04, V.A.M.R. We are well aware that the trial court has wide discretion in passing on motions for a new trial. This is limited to questions of fact and matters affecting the determination of issues of fact, but the jury’s verdict may not be arbitrarily vacated. The trial court may not be permitted to set aside the verdict of a jury unless some legal ground is shown which may properly be the basis for such action. Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383; Blanford v. St. Louis Public Service Co., Mo. Sup., 266 S.W.2d 718; Wallace v. Whitzel, Mo.App., 324 S.W.2d 157; Brown v. Kansas City, Mo.App., 311 S.W.2d 360.

The plaintiff suggests that he is aided, in some unstated respect, by Supreme Court Rule 79.04, V.A.M.R., which is as follows:

“Plain errors affecting substantial rights may be considered on motion for a new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

As pointed out, we find no errors properly raised or otherwise existing in the record that affected any substantial right or resulted in a miscarriage of justice. It should also be pointed out that this rule is not a refuge for those who negligently fail to make proper objections. Critcher v. Rudy Fick, Inc., Mo.Sup., 315 S.W.2d 421. It was an abuse of discretion for the trial court to grant a new trial upon the grounds specified.

We find no error in the trial below, except the error of the court in sustaining the motion for a new trial. The order of the trial court, setting aside the verdict and judgment for the defendant and granting a new trial, is reversed and the cause remanded with directions to reinstate the verdict and judgment for the defendant.

ANDERSON, P. J., concurs.

RUDDY, J., not sitting.


source: Caselaw Access Project

author: ANDERSON, Presiding Judge.

license: Public Domain

text:
    Glasco FRANKLIN, Jr. (Employee), (Plaintiff) Respondent, v. ST. LOUIS INDEPENDENT PACKING COMPANY, A Division of Swift and Company (Employer), Security Mutual Casualty Company (Insurer), (Defendants) Appellants.
    No. 30969.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Alexander & Robertson, and Leo C. De-voto, Jr., St. Louis, for appellants.
    Max M. Librach, St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is a proceeding under the Workmen’s Compensation law, (§§ 287.010-287.-800 RSMo 1959, V.A.M.S.) instituted by Glaseo Franklin, Jr., an employee of St. Louis Independent Packing Company. The claim arose out of an accident sustained by the employee which occurred December 18, 1958, on the premises of the employer. After a hearing a referee of the Division of Workmen’s Compensation entered an award in favor of claimant for permanent partial disability in the sum of $37.50 per week for 31.5 weeks, or a total of $1,181.25, based upon a finding of 15% permanent partial disability of the left arm at the elbow. Upon review the Industrial Commission affirmed the award, which award was likewise affirmed by the Circuit Court. From the judgment of the Circuit Court the employer, and its insurance carrier, Security Mutual Casualty Company, have appealed. The issue on this appeal is whether the award of 15% permanent partial disability is supported by competent and substantial evidence upon the whole record.

At the time of his injury claimant was employed as a hog shackler. The duties of a hog shackler are to place a chain around the leg of a hog and lift it onto a conveyor which carries the animal to the place where it is slaughtered. The convey- or is about waist high. Previous to being shackled the hogs are driven from an outer pen into a pen where the shackling takes place. This latter pen is about three and one-half to four feet wide and ten feet long; about eighteen or twenty hogs are driven into this pen at one time. Five men work at this operation; four do the shacking and one man drives the hogs into the inner pen. On December 18, 1958, claimant was engaged in this operation. On that day after he had driven some hogs into the shackling pen they became wild and excited when some chains slid down a rail making a noise. Claimant was standing behind them and the hogs backed up causing him to fall to the brick floor of the pen. As a result of this fall claimant sustained a laceration of his left arm at the elbow.

After his fall claimant reported to the first aid station located on the premises, where he was examined by a nurse and a doctor. He was then sent to Barnes Hospital for treatment. The doctors at Barnes Hospital treated the wound and sutured it with seven stitches. Claimant then went back to work that same day. At first claimant did not shackle hogs because he could not bend his arm. However, he did drive hogs into the pen. After seven or eight days he resumed all the duties connected with his employment, which included shackling. The only treatment he received for his injury was at Barnes Hospital and thereafter by Dr. Magee, the plant doctor. He saw Dr. Magee twice that he could recall. At the request of his attorney he was examined by Dr. Wennerman, but received no treatment from him.

At the hearing claimant testified that a sore spot developed around the elbow and that he has had pain in that area continuously since the accident. He stated that the pain “seems like get worser to me”, and that the elbow “feel like it’s getting a little bit larger.” “ * * * it seems like something developing there now. Something coming up in there, something soft-like coming out.” * * * “It started out small, but now it’s getting larger. * * * It’s tender. * * * It hurts.” On cross-examination he described this as a large mass which he did not have before the accident. Shortly before the hearing a pimple developed on this large mass. He also stated that his elbow is stiff in the morning until it loosens up at work. He further testified that he could move his elbow, “but it gives out on me. It gets tired during the day.”

Upon returning to work, claimant did, after a few days, the same type of work he had done prior to the accident, that is, shackling hogs. The larger hogs run between 700 and 800 pounds, and the smaller ones between 250 and 350 pounds. Two men work together at this job. In an eight hour day with two men working they will shackle between 4,100 and 4,200 hogs if the hogs are large and small ones mixed. If all are small hogs they would shackle more.

When claimant was on the witness stand the Referee examined claimant’s elbow, and dictated into the record the following:

“Let the record show that the Referee has examined both elbows of the claimant, and that there appears to be some enlargement in the claimant’s left elbow, and there appears to be some type of pimple on the enlarged place; and, further, that the claimant demonstrates no loss of motion in his elbow and no disability in the hand or wrist of either arm.”
* * * “Let the record show that the claimant stated he had pain in his left elbow when the Referee examined it and pressed on the enlarged area."

Dr. Samson Wennerman testified on behalf of claimant. He stated he had examined claimant on June 6, 1959, and at that time his complaints were of pain, soreness, stiffness and weakness of the left elbow; that he also complained of a small swelling over the back of the left elbow. The doctor also testified that he examined claimant and found over the back of the left elbow a healed transverse laceration almost an inch long, which area was tender but non-adherent. He found no sensory loss. The doctor gave it as his opinion that the condition he found was the result of the trauma claimant has sustained. The witness further testified that he again examined the claimant on November 1959, at which time the latter still complained of pain, soreness, and swelling back of the left elbow. He stated that his examination of the elbow revealed a healed laceration, and that the area thereof was bluish and larger than the corresponding point on the other elbow. He also found that movements of the elbow could be carried out. He further testified that he rated claimant as having a disability amounting to partial permanent loss of the left elbow of ten percent. On cross-examination Dr. Wennerman testified that the movements of the left elbow were within the normal range; that there was a difference in size of the left arm and right arm at the elbow; that at the first examination of June 6, 1959, claimant complained of a small swelling back of the left elbow; that he was not impressed with it, by which he meant he didn’t see any swelling that he, at the time, thought was noteworthy; that there was no difference in the size of the elbows that would warrant his making a note of it; that his diagnosis on the second visit, November 28, 1959, was the same as on the previous visit; that at that time he noted the swelling in his physical examination, and had the elbow x-rayed again. He further testified that Bursitis is a painful condition. Dr. Wennerman then gave the following testimony.

“q * * * if the man’s arm would move in the same manner in which the other arm moved, and there was no limitation of motion, on what basis did you make your rating of disability?
“A. Principally upon the fact that he complained of pain and the finding that he had adequate cause for pain. He had had a blow there; laceration, which had been sutured, and there was some swelling and enlargement of the elbow.”

The doctor further testified he saw no evidence of acute inflammation present in claimant’s case or evidence of acute swelling; that the pimple was not present at the time of the November 1959 examination, but that he saw it when he examined claimant just before the hearing; and that there was a swelling over the back of the elbow the size of a golf ball cut in two.

On redirect examination, Dr. Wenner-man testified that the pimple on the elbow had nothing to do with claimant’s disability; that the condition he saw (swelling) was due to the trauma claimant sustained; that it is larger than it was in November 1959, because he thought claimant had a Bursitis; that there is a tendency for elbow Bursitis to gradually get larger; that he was quite definite in his diagnosis. Claimant’s elbow was again exhibited to the Referee, who dictated into the record the following:

“Let the record further show it (swelling on elbow) is an area approximately one and a half inches in diameter about half the size of a golf ball, about the same diameter as a golf ball or slightly larger.”

Dr. William E. Magee, plant physician for appellant, was called as a witness for the employer. He testified as follows: He saw claimant on December 18, 1958, at which time claimant had a laceration on his left elbow. At that time he put a temporary dressing on the elbow and sent him to Barnes Hospital, feeling that a surgeon should handle the matter. He next saw claimant on December 22, 1958, and according to directions from Dr. Copher of Barnes, who treated claimant, he continued claimant on anti-biotics, and dressings. He also recommended light work. In all Dr. Magee saw claimant six times, the last time being May 6, 1959, which was for the purpose of evaluation for rating purposes. No treatment was given on the last visit in May 1959. It was the doctor’s impression at that time that the claimant was getting better. Claimant was not well at that time, but he thought claimant would, in another two months be further improved. There was no evidence of infection and the wound looked well, though there were complaints of pain in the elbow. No specific treatment was given other than the drugs that were prescribed. He did not recall claimant making any statement to him or the nurse that the elbow was getting larger. He saw claimant again on November 25, 1959. The history given him at that time was that the only trouble claimant had was some aching in the left elbow after working all day. He did not recall any complaint that the elbow was getting larger. His records did not show any notation of such complaint. When he saw claimant on November 25, 1959, he made an examination of the elbow and had claimant extend his arm, rotate it in all directions and flex the arm fully. This was done with his hand over the elbow in order to determine whether any crepitation was present. He also put pressure on the elbow with the tip of his fingers to determine if any tenderness was present, at which time claimant made no complaints of pain or discomfort. Claimant said he did not at the time feel any tenderness or pain, nor did claimant withdraw the arm when he put pressure on it. Based on his examination of November 25, 1959, he rated claimant’s disability of the left elbow at “zero percent”. The basis for such opinion was the absence of any objective evidence of any abnormality noted. He stated his record did not show any history of any complaints that the elbow was getting larger, or complaints about the use of his elbow since June of 1959.

On cross-examination Dr. Magee testified as follows: That he saw claimant on December 28, 1958 and gave him a course of treatment with anti-biotic medicine, because the wound was contaminated. However, there was no evidence of infection. He recommended light work for claimant for three weeks because he wanted the elbow to be immobilized during the recovery period, for fear that infection might set in. He saw claimant six times in all and two more times for rating purposes. At no time did claimant state that the tip of his elbow was getting larger, and that he (the doctor) did not see the elbow getting larger. He based his disability rating on objective findings because subjective findings are difficult to evaluate. He stated that the complaint of a slight ache in the elbow following eight hours of strenuous labor did not in his opinion depict a result of the accident. The laceration was over the olecranon processes, a region where one is apt to have a Bursitis, which is an accumulation of fluid within the olecranon bursa. He stated he had never seen a traumatic Bursitis of an elbow that didn’t show manifestations of fluid accumulating within a week or earlier following the trauma, and that at the time he examined claimant on November 25, 1959 he did not think claimant had a Bursitis.

During this cross-examination Dr. Magee examined claimant’s elbow and gave the following description of his observations:

“Overlying the olecranon processes of the left elbow is a transverse well-healed linear scar approximately three and a half centimeters in length on the lateral side of which is one centimeter soft shinny nodule that is within the skin and freely movable, with no evidence of increased heat or redness around this nodule. On pressure over the nodule, Mr. Franklin withdraws somewhat.”
“Q. Doctor, forgetting the nodule for a moment — Doctor, is the size of the elbow in the region I am indicating the same on both; or, is one larger than the other?
“A. Aside from the slight thickening of the skin that is seen over the left elbow, I would not be able to state unless I took a pair of calipers, or similar measuring device, and actually measured the two areas. There’s an apparent enlargement of this left side, which I believe is tied in with the thickening of the skin in the area of the scar.
“Q. Doctor, would you say that thickening of the skin is approximately the size of half a golf ball?
“A. I don’t think it’s quite that large, * * *.
* * * this elbow appears different in one respect, one major respect, at this particular time, and that is that this nodule that is present on the lateral side of this scar wasn’t present at the time of my examination on November 25, 1959.”

The witness further testified that the phrase, “One olecranon Bursa had been opened” which appeared in the report of Dr. Copher of Barnes Hospital, meant that the wound extended into the Olecranon Bursa which is a way that Bursitis can start, and that claimant had pain and swelling in his elbow during the early course of his injury. He further testified that his examination of claimant during the ensuing weeks did not demonstrate any unusual amount of swelling or crepitation which would lead him to believe that claimant had a progressive Bursitis; that when a Bursa is opened traumatically there is bound to be some inflammation, but in claimant’s case it appeared to heal very well. He further stated he had never been aware of any Bursitis that wasn’t painful.

On recross-examination, Dr. Magee testified that he thought that the swelling mentioned was not a residual of a traumatic tearing of the Bursa of the left elbow, but a lesion localized to the skin and a thickening within the skin which could possibly be a subcutaneous cyst which most probably had no tie-in with the accident. He further stated that claimant did have a Bursitis; that the only thing that he saw that he could connect with the injury was the scar.

The question presented by this appeal is whether the findings and award of the Industrial Commission are supported by competent and substantial evidence upon the whole record. Wood v. Wagner Electric Corp., 335 Mo. 670, 197 S.W.2d 647; Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55. Appellants, in support of their contention that there was a complete lack of substantial evidence to support the award, urge that the record shows claimant suffered no loss of bodily function, and point to the evidence showing no loss of movement of his left arm as a result of the accident, and to the fact that within seven or eight days after his injury, claimant went back to his job as a hog shackler. This evidence is true, but not conclusive. An employee may have a permanent partial disability within the meaning of the Workmen’s Compensation Act, and still be able to work. Cole v. Best Motor Lines, Mo.App., 303 S.W.2d 170; Worley v. Swift & Co., Mo.App., 231 S.W.2d 808. Nor is actual loss of earnings an essential element of a claim for permanent partial disability. Carr v. John W. Rowan Plastering Co., 227 Mo.App. 562, 55 S.W.2d 727; Worley v. Swift & Co., supra; Sleets v. St. Louis Material & Supply Co., Mo.App., 39 S.W.2d 821; Betz v. Columbia Tel. Co., 224 Mo.App. 1004, 24 S.W.2d 224. In the latter case, claimant was awarded permanent partial disability for the loss of 31 teeth, and in affirming the award, the Court, after referring to certain New Jersey cases, said (24 S.W.2d l. c. 229):

“It is notable that in these cases the word ‘disability’ is given a broader meaning than the limited one ascribed to it in the decisions of other states. It is held that compensation for disability is allowable in cases of injury which destroys or impairs a member or a function of a part of the body, irrespective of the question of reduced earning capacity. The course of reasoning, evidenced by these opinions, is in keeping with the just, humane, and beneficent, as well as economic, purposes intended by legislation of this character, and is worthy to be followed. In this connection, we perceive that our statute is even broader and more elastic than the New Jersey statute, and that it not only permits recovery for ‘disability’, but provides compensation for various ‘injuries,’ independent of the question of disability, in the sense that it causes a loss of earning power.”

In the case at bar claimant did sustain an injury to his left elbow, and there was testimony that thereafter up to the time of the hearing he suffered pain and soreness in that area. It also appears from claimant’s evidence that his arm at the elbow became enlarged. This enlargement, according to the testimony of Dr. Wenner-man, was the size of a golf ball cut in half. The Referee at the hearing, after viewing the elbow, made a like observation with reference to the size of the enlargement. Dr. Wennerman testified that, in his opinion, this swelling or enlargement was due to the trauma claimant sustained on December 18, 1958. There was also evidence from which it could be found that the trauma caused a progressive Bursitis in the elbow. There was also testimony that although claimant suffered no loss of motion in his elbow “it gives out” on him and gets tired during the day. It also appears that claimant complained to Dr. Magee of weakness in his arm at the time he examined claimant.

After a review of the testimony, it is our judgment that there was competent and substantial evidence to support a finding of permanent partial disability within the meaning of the Act. Betz v. Columbia Tel. Co., supra; Carr v. John W. Rowan Plastering Co., supra.

Nor can we say that the percentage of disability found is not sustained by competent and substantial evidence, or that it is contrary to the overwhelming weight of the evidence. The Commission was not bound by the testimony of the medical witnesses, but was under a duty to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of disability suffered. The Commission also had before it the observations of the Referee who, at the hearing, examined the claimant’s arm, which observations were dictated into the record. The evidence offered by appellants, in our opinion, merely presented a conflict of evidence to be resolved by the Commission. Kraus v. Sefton Nat. Fibre Can Co., Mo.App., 35 S.W.2d 920; Johnson v. Fogertey Bldg. Co., Mo.App., 194 S.W.2d 984; Williams v. Laclede-Christy Clay Products Co., Mo.App., 227 S.W.2d 507; Cole v. Best Motor Lines, supra.

On the whole record before us, we find no ground which would authorize us to interfere with the finding and award of the Commission. The judgment of the Circuit Court is affirmed.

WOLFE, J., concurs.

ELGIN T. FULLER, Special Judge, dubitante.


text:
    Howard NELSON (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation (Defendant) Appellant.
    No. 30914.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion to Quash and Set Aside Opinion, for Rehearing or to Transfer to Supreme Court Denied Oct. 15, 1962.
    Donald W. Bird, St. Louis, for appellant.
    David G. Dempsey, Clayton, Walter L. Floyd, Jr., Robert D. Bransford, Arthur E. McLeod, St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is an action by Howard Nelson, as plaintiff, against defendant St. Louis Public Service Company to recover damages for personal injuries alleged to have been sustained by him on December IS, 1959, when he was struck by one of defendant’s buses while riding a motor scooter. The trial below resulted in a verdict and judgment for plaintiff in the sum of $12,500.00. From this judgment defendant has appealed.

The accident happened within the intersection of Michigan and Schirmer Avenues in the City of St. Louis. Michigan Avenue runs north and south, and Schirmer runs east and west. Michigan Avenue south of Schirmer is 35 feet 9 inches wide, and Schirmer is 30 feet wide. There are stop signs on Schirmer for east and west trafile, but none for north and south traffic on Michigan. The stop sign for westbound traffic on Schirmer is 15 feet east of the east curb of Michigan. The block south of the intersection measures 320 feet along Michigan from the south curbline of Schirmer to the north curbline of the next intersecting street. There is a bus zone on the east side of Michigan south of Schirmer and a bus stop sign located 85 feet south of the south curbline of Schirmer. The accident happened shortly after S :00 P.M. It was dark at the time. At the time of and just prior to the accident the defendant’s bus was proceeding north on Michigan Avenue, and plaintiff was riding his motor scooter west on Schirmer. Susan Boehm, an eleven-year-old girl, was riding with plaintiff at the time. She was seated behind plaintiff on the motor scooter.

Plaintiff testified that on the occasion in question he brought his motor scooter to a stop at the stop sign IS feet east of the east curb of Michigan. The handlebars of the scooter were approximately even with the stop sign. He looked to his left but saw no northbound traffic on Michigan. He then moved forward about six feet and again stopped with the front end of the scooter about five or six feet east of the east curbline of Michigan. He did this in order to better see past a building. At the time the right side of the scooter was two feet south of the north curb of Schirmer. He came to a complete stop and placed both feet on the ground. Both the headlight and taillight on the motor scooter were burning at the time. Plaintiff did not know the location of the bowling alley to which he and his friend were going, and, after the second stop, asked his companion which way to go. That was the last thing plaintiff remembered until he awakened in the hospital.

Susan Boehm, the passenger on the motor scooter, testified on plaintiff’s behalf. On direct examination she testified that she was seated behind plaintiff; that the headlight on the scooter was burning, and that plaintiff stopped the scooter at the stop sign for westbound traffic, which was located, according to other evidence, fifteen feet east of the east curbline of Michigan. Miss Boehm further testified she then looked both ways for approaching traffic, and that plaintiff also at the time turned his head to the left and to the right. She also stated that when she looked to the left she saw a bus coming north on Michigan Avenue. It was then about a half block south of the intersection. She did not know if the headlights on the bus were on at the time, but stated it was then light enough for her to see the bus without headlights. She testified plaintiff then started the motor scooter forward very slowly, and she looked ahead in the direction they were going. The motor scooter was operated , straight across the intersection, neither turning to the right nor left. When she next saw the bus the motor scooter was more than half way into the intersection and the bus nine feet from the motor scooter. She did not mention to plaintiff seeing the bus either at the time she first observed it or when she saw it nine feet away. At the time she saw the bus nine feet away, plaintiff tried to go faster, but the front part of the bus hit the motor scooter. Miss Boehm has no recollection of subsequent events which took place at the scene of the accident. She was knocked unconscious and regained consciousness thereafter while in an ambulance being conveyed to the hospital.

On cross-examination Susan Boehm testified she looked south for about three seconds, when the motor scooter was stopped with its front end even with the stop sign. She then glanced toward the north for about one second, then looked straight ahead, and the motor scooter started forward. She stated that she thought the bus stop on Michigan south of Schirmer was about a half block up the street, and, that the bus, when she first saw it, was about in the area of the bus stop sign. She further stated that it looked as if the bus was slowing down to pull into the bus stop at the curb, but did not actually do so.

On redirect examination the witness testified that when plaintiff started forward from the stop sign, she was looking south; that she had looked to the right before the motor scooter started up and then looked to the left; that when the motor scooter started up the front end of the bus was a little south of the bus stop sign and that the next time she saw the bus it was about nine feet from the scooter and half way into the intersection. On recross-examination the witness stated that she saw the bus twice; the first time she saw it the motor scooter was at a stop, and that the bus was “a little back” of the bus stop sign. She said she watched the bus for three seconds. She then looked to the north, then straight ahead, at which time the motor scooter was moving.

Police Officer Edward Moore came to the scene of the accident shortly after it happened. He testified that the bus was stopped north of the intersection with its rear end twenty-five feet north of the north curbline of Schirmer, and its left side three to five feet east of the center line of Michigan. The scooter was at the northwest corner of the intersection in the crosswalk, approximately three and one-half feet from the west curbline of Michigan. He said there were no lights on the motor scooter when he arrived and that he found the headlight and taillight inoperative. Russell Akerson, who was first to arrive at the scene of the accident, testified that the headlight on the motor scooter was on when he left his store, a short distance away, when he heard the crash, and was on when he arrived at the scene of the collision.

The operator of the bus, Alphonse Dick-neite, testified on behalf of defendant. He stated it was dark at the time of the accident and the inside lights and headlights of the bus were on at the time. As he approached the intersection the bus was traveling twenty miles per hour until it reached a point thirty feet south of Schirmer, at which time he reduced its speed to twelve or fifteen miles per hour. On direct examination he testified that he looked to the right when his bus was sixty feet from Schirmer, also when it was thirty feet south of the intersection, and again when it was fifteen feet from the south curbline of Schirmer. He stated that he did not see the motor scooter as he approached the intersection.

On cross-examination he stated that when he was sixty feet south of the intersection he was looking straight ahead, and the first time when he looked to his right the bus was thirty feet from Schirmer. At that time he did not see the motor scooter. On direct examination he testified that when he reached the south curbline of Schirmer he looked to his right and saw the motor scooter fifteen feet east of the east curbline of Michigan, traveling about twenty miles per hour, about two feet south of the center line of Schirmer. The bus was, at that time, according to his testimony, traveling at the rate of seven to ten miles per hour and was about two feet from the center line of Michigan. At that time he had his foot on the accelerator to go on across the intersection. He stated, when he saw the motor scooter, “I immediately went for my brakes. * * * to try and * * * stop as fast as I could”, but the brakes did not take hold before the impact. He further stated that the speed of the motor scooter was not reduced from the time he first saw it until the collision. The left side of the motor scooter came in contact with the left front of the bus. The motor scooter was knocked clear of the bus and the people on the scooter were knocked onto the curb. Since everything was knocked out of his way he let the bus roll until it was off of Schirmer. At first he said the bus stopped within twenty-five feet, but later stated it was twenty feet.

On cross-examination Dickneite stated that when the bus was fifteen feet from the intersection he guessed he could see east on Schirmer, a distance of about twenty to twenty-five feet. He said the speed of his bus at that time was around twelve miles per hour. At first he said he could see almost a whole block east when the bus was at the curbline, but changed this to twenty to twenty-five feet after being confronted with his testimony given by deposition in which he stated he could see only twenty feet. He then stated it could be possible to see the whole block “Provided you turned your head all the way around.” He testified that the motor scooter was twenty-three feet away from where he was sitting on the bus when he first saw it, but admitted he probably told the police that he did not see it until it was right on top of him, by which he meant it was close. He denied, at first, that the bus had deviated from a straight line as it approached Schirmer, but when a portion of his prior deposition was read to him, in which he stated he didn’t know the fact one way or the other, he said he did not think he went over to the right, but was not certain.

The facts concerning plaintiff’s injuries are not set forth herein for the reason that there is no issue on this appeal as to the nature, character, or extent of such injuries, nor is there any contention that the verdict is excessive.

Appellant’s first point is that the court erred in failing and refusing to direct a verdict for the defendant for the reason that plaintiff failed to introduce substantial evidence that defendant had the means at hand and the ability to avoid the collision had a vigilant watch and lookout been kept. In support of this assignment it is urged that plaintiff failed to establish the exact point where the bus operator became chargeable with knowledge that plaintiff was entering the intersection, and evidence of his ability thereafter to have avoided the accident. Defendant’s argument is based on the theory that the testimony of plaintiff’s witness, Susan Boehm, which bore on this issue, was so contradictory that it was of no probative value.

The alleged contradictory testimony was with reference to the direction in which Susan was looking when the motor scooter started up from its stopped position at the stop sign, fifteen feet east of the east curbline of Michigan. She testified on direct examination that plaintiff stopped the motor scooter at the stop sign, and that she looked both ways; that when she looked to her left she saw the bus about a half block south of the intersection; that the motor scooter then started and she looked forward in the direction it was going. The next time she saw the bus it was nine feet from the motor scooter.

On cross-examination Miss Boehm testified that as the motor scooter approached Michigan, and before it came to a stop, she was looking toward the south and that she had been looking toward the south for about three seconds. After the motor scooter came to a stop she quit looking toward the south. When the motor scooter came to a stop, she saw the bus about in the area of the bus stop sign, which was approximately the half way point in the block. After seeing the bus she glanced toward the north for about a second, and the motor scooter then proceeded forward. On redirect examination she stated that when she first saw the bus it was, “a little back”, south of the bus stop sign, and that she was looking south when the motor scooter started from the stop sign. On recross-examination she testified she saw the bus twice, the first time when the scooter was at the stop sign, and the second time when it was nine feet from the motor scooter. When she first saw the bus it was “a little back” from the bus stop sign; that she looked to the left approximately three seconds, then looked toward the north when the scooter was at a stop. After looking toward the north she looked straight ahead, at which time the motor scooter was moving. Thereafter, in answer to plaintiff’s counsel, she stated that when the motor scooter started forward she was looking straight ahead.

It is true there was some variation in Susan’s testimony with regard to the sequence of her looking to the left, right, and straight ahead, but we cannot say that her testimony in reference thereto had no probative value. Rather it was for the jury to determine what were the facts testified to and determine therefrom the interval of time between her first observation of the bus and the forward movement of the motor scooter into a position of apparent danger. After a determination of this fact the jury could, with a reasonable degree of certainty, have ascertained the position of the bus at the time the operator of the bus became chargeable with knowledge of plaintiff’s danger.

Under the evidence most favorable to plaintiff, the bus was one-half block, or one hundred sixty feet, south of the intersection at the time Susan first saw it. It was traveling twenty miles per hour at the time according to defendant’s evidence. Susan testified that during the three seconds she looked to the left the bus reduced its speed. Schirmer Avenue is thirty feet wide so that the bus was, at the time Susan first saw it, one hundred eighty-eight feet from the point of impact, since the motor scooter, according to plaintiff’s testimony, was traveling two feet south of the north curbline of Schirmer Avenue. If the motor scooter started forward three seconds after Susan first saw it, the bus, at the time, would have been seventy feet south of the intersection and ninety eight feet from the point of impact. If four seconds elapsed between the time Susan first saw the bus and the starting of the motor scooter, the bus would have been forty feet south of the intersection and sixty eight feet from the point of impact. The operator of the bus testified he did not see the motor scooter until the bus reached the intersection. Clearly there was substantial evidence of the failure of the operator to keep a proper lookout, and evidence that had he done so he could have, by the exercise of the highest degree of care, avoided the collision. Since it was the left side of the bus that struck the motor scooter the jury could have found that the accident could have been avoided by slackening the speed of the bus. Also under the evidence the jury could reasonably have found that the collision could have been avoided by swerving, or by sounding a warning.

Appellant next complains of Instruction No. 1, given by the court at the request of plaintiff. It was a verdict-directing instruction submitting the pleaded assignment of negligence that defendant failed to keep and maintain a proper lookout. The first paragraph of the Instruction is an abstract statement of law, and the second paragraph hypothesizes the facts to be found by the jury before returning a verdict for plaintiff. No complaint is made with reference to the latter, therefore we need only set out the first paragraph. It reads as follows:

“The Court instructs the jury that under the law of this State the defendant, St. Louis Public Service Company, by and through its driver and agent, owed the duty to exercise the highest degree of care to keep and maintain a constant, careful and vigilant watch and lookout ahead and laterally ahead while operating its bus so as to see, discover, be cognizant of and continually alert to the presence, position and movement of other vehicles at or near the intersection of Schirmer Street and Michigan Avenue and any failure on its part to do so would constitute negligence as that term is used in these instructions.”

It is urged that the Instruction is so phrased as to place an absolute duty on the defendant to have “seen and discovered” the presence of plaintiff’s vehicle at the time in question, when all that is required by law is that defendant exercise the highest degree of care in the premises. We do not believe such an interpretation can be placed upon the language of said Instruction. It seems to us to lay down the proper rule, i. e., that defendant was under a duty to use the highest degree of care to see and discover the presence of other vehicles, and does not place an absolute duty upon defendant so to do.

Defendant also complains of the use of the phrase, “and any failure on its part to so do would constitute negligence.” It is contended that the language in question plainly permits of no failure and, in so doing, places an absolute burden on defendant and makes him an insuror of plaintiff’s safety. There is no merit to the point urged. The criticized phrase clearly refers back to the preceding statement of the duty on the part of defendant to keep a lookout. That duty was specifically stated as a duty to exercise the highest degree of care to keep and maintain a lookout.

Finally it is urged that the rule of law announced was erroneous because it “ignored the necessary element” that in a lookout case the defendant must have the ability to avoid a collision after being chargeable with seeing plaintiff. We need not notice this point for the reason that no such objection was made either at the trial or in defendant’s motion for new trial. See Civil Rule 70.02, V.A.M.R. In passing we may say, however, that this matter was submitted in the second paragraph of the Instruction.

The final point urged is that the court erred in failing to sustain defendant’s motion for a directed verdict for the reason that plaintiff was guilty of contributory negligence as a matter of law in the following particulars, i. e., (A) failure to keep a lookout, (B) failure to yield the right-of-way.

Plaintiff testified that when he stopped at the stop sign he looked to his left but saw no approaching traffic. Susan Boehm testified she observed plaintiff look both ways at the time. She also testified that when she looked to her left she observed the bus a half block to the south, which would place it one hundred sixty feet south of the intersection. After stopping at the stop sign plaintiff moved forward about six feet so that he could better see past a building that was on the southeast corner of the intersection. In other words, plaintiff’s intention in making this movement was to look for approaching traffic. However, he was unable to say whether he did or did not again look to his left, because of loss of memory due to the accident. But it could reasonably be inferred from his actions and intentions that he did look at this point and it could also be inferred from the other testimony that the bus was then a considerable distance south of the intersection and, according to Susan Boehm’s testimony, looked as if it was slowing down and moving toward the curb. In fact, the operator of the bus testified he reduced the speed of the bus as he approached the intersection. Under the facts it cannot be said, as a matter of law, that plaintiff was guilty of contributory negligence as claimed. In our judgment the issue was one for the jury.

We find no error in the record. The. judgment is affirmed.

WOLFE, J., and ELGIN T. FULLER, Special Judge, concur.


author: ROBERT G. BRADY, Commissioner.

text:
    In the Matter of Douglas DUNCAN and David Duncan, Minors. John T. DUNCAN, Petitioner, v. Bert PITTS and Jessie Pitts, Respondents.
    No. 31124.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1962.

      Gragg, Aubuchon & Walsh, Eugene P. Walsh, St. Louis, for petitioner.
    Dockery '& Soule, Morie B. Soule, St. Louis, for respondents.
   ROBERT G. BRADY, Commissioner.

This is a proceeding in habeas corpus which was instituted in this court by the father of Douglas Duncan and David Duncan, alleging their detention by their maternal grandparents, Mr. and Mrs. Pitts, respondents herein. The petitioner further alleged he was granted a divorce on October 24, 1960 from the mother of the children- and was awarded custody of the children by that decree, but that the respondents have refused to turn the children over to him. The matter has been fully briefed by the parties in their suggestions and the pleadings are complete. Petitioner has filed a motion for the right of temporary visitation and for judgment on the pleadings.

In their return, insofar as the allegations are pertinent to our inquiry, the respondents alleged that the petitioner brought these children to their home in University City and requested respondents to support, care for, and have custody of the children; that acting pursuant to his request, the respondents have done so; and alleged “ * * * therefore, * * * the respondents herein, do not imprison, detain, nor restrain * * ” the children. The return also alleged that the petitioner was living with his wife at the respondents’ home when he and his wife separated and knew she still resided there but nevertheless instituted service by publication ; that no notice was ever given to the mother of these proceedings which were “ex parte and uncontested” insofar as custody of the children was concerned. Respondents alleged that the circuit court did not have jurisdiction for this reason and its decree was * * * void, illegal, irregular and invalid.” The return further alleged that the petitioner is not a resident of this state, does not maintain a home in this state, and intends to remove the children from the state, thereby depriving “⅜ * * the State of Missouri of its inherent right of control of said children”; and'that the children “ * * * since they were infants and are at the present time, wards of the Court of the State of Missouri.” The other allegations of the return deal with the fitness of the petitioner and allege that he is constantly traveling and does not maintain a home of any kind at any place; that he has not the means to care for and support them; that he is a stranger to them with no love or affection for them; that he habitually uses intoxicating liquor to excess and has beaten the children with an 18-inch oak ruler and has a violent and uncontrollable temper; that the children become emotionally upset at the mere sight of him or at his presence; that on occasion they have required medical attention because of this fact; that petitioner “ * * * has had several encounters with the police and was sought by the Internal Revenue Service * * * ”; that petitioner has refused to care or provide for the children; that his conduct is “lustful, lewd and lascivious”; that by a previous marriage petitioner had another child which he did not provide for either; and that petitioner only seeks to remove the children from the respondents and has stated his intention of placing them in a home if successful in doing so. The return also alleged the financial and moral fitness of the respondents.

The answer to the return admits he took the children to respondents’ home but alleges that this was when he came to live there with them and their mother, and further admits that there was no personal service on the mother when the divorce was granted. All the other allegations of the return are denied. As new matter, the answer alleges that the respondents cannot collaterally attack the divorce decree, and as grounds therefor alleges that the service on the mother was valid because she had “ * * * absconded and absented herself from her usual place of abode * * * ” at respondents’ home and “ * ⅜ * concealed herself so that the ordinary process of law could not be personally served upon her * * * ” and that respondents cannot attack this decree because they are es-topped to do so, having often told petitioner the mother was not living with them and they did not know her whereabouts. The answer further alleges his fitness and capabilities for caring for the children, and the respondents’ unfitness, in that they both work and the “children have been attended by a paid baby sitter during the day *

The reply denies the allegations of new matter in the answer, and also alleges that petitioner has stated to them that he has no religion and does not believe in God.

It is evident from the pleadings and the suggestions that the respondents seek an opportunity to present evidence going to the fitness of the father and place their primary reliance upon their contention as to his unfitness to have custody of these children. In other jurisdictions it has been held that a prior divorce decree determining custody, although binding as between the parents, is not a bar to a subsequent habeas corpus proceeding to determine custody, since the decree did not consider the position of the state as parens patriae and the welfare of the child, see 39 C.J.S. Habeas Corpus § 46, Notes 56 and 57, but the rule is otherwise in Missouri, In re Wakefield, 365 Mo. 415, 283 S.W.2d 467. The respondents urge that nevertheless they are entitled to a hearing upon their allegations of the unfitness of the petitioner in the case at bar. Their contention is that where the evidence supporting the allegation of unfitness arises after the divorce decree, such evidence can be considered. It is true that in the Wakefield case, supra, at [7-8] of page 472, the court stated that award of custody in a divorce decree requires the presumption that the parent receiving custody was then a fit person, but the word “then” should not be given undue significance. In Wakefield, supra, the Supreme Court of this state clearly overruled Ferguson v. Garrison, Mo.App., 262 S.W.2d 163, a case where the Springfield Court of Appeals in a habeas corpus proceeding awarded custody of a child to another even though there was a divorce decree awarding custody to the mother. It is apparent that while the court in Wakefield discussed generally the fact that there was a motion to modify filed by the proper party pending in the circuit court when the habeas corpus proceeding was instituted, since the court specifically overruled the Ferguson case, the fact that there was no motion to modify pending in the instant case should not affect our de-cisión. The rule of In re Wakefield, supra, is that where a parent was awarded custody of a minor child by a divorce decree and that decree has not abated by death or otherwise, evidence going to the question of the parent’s fitness since the decree cannot be heard in a habeas corpus proceeding.

Being foreclosed by Wakefield in their effort to present evidence upon their allegations of the petitioner’s unfitness, and recognizing that had there been no award of custody arising out of the divorce proceedings this court would be free in a habeas corpus proceeding to inquire into the fitness of the petitioner, the respondents urge the invalidity of the divorce decree. The respondents’ contention is that the divorce decree is void because the circuit court did not have jurisdiction of the parties, the petitioner having made a false affidavit for service by publication by stating therein the statutory language (Section 506.160 RSMo 1959, V.A.M.S.) that the defendant mother had absconded and absented herself from her usual place of abode and had concealed herself so that ordinary process of law could not be personally served upon her and that her address was unknown to him, when in truth and in fact petitioner knew that his wife was living with respondents. The petitioner in effect denies the affiadvit is false but places his main reliance upon the contention" that the respondents cannot collaterally attack the divorce decree.

There can be no doubt but that the attack which respondents seek to make on the divorce decree in the instant case is a collateral attack. In Ray v. Ray, 330 Mo. 530, 50 S.W.2d 142 at [1] page 143, and Reger v. Reger, 316 Mo. 1310, 293 S.W. 414 at [6] page 421, the distinction between a direct and a collateral attack is clearly stated. Neither can there be any doubt but that the attack which respondents seek to make, if allowed to do so, would succeed or fail upon evidence de hors the record. This for the reason that since the circuit court of St. Louis 'County had jurisdiction of the subject matter and the judgment is regular on its face, it must be presumed that every fact necessary to the trial court’s jurisdiction was found by that court. See Ruckman v. Ruckman, Mo.App., 337 S.W.2d 100; Gomez v. Gomez, Mo., 336 S.W.2d 656, Lewis v. Lewis, 238 Mo.App. 173, 176 S.W.2d 556. It follows that the trial court must be presumed to have found that it had jurisdiction of the parties. But an analysis which makes the admissibility or inadmissibility of such evidence determinative of this case is superficial. The determinative questions in the case at bar are, (1) whether the judgment is subj ect to collateral attack at all, and (2) if so, whether the respondents, strangers to the divorce action, are the proper parties to mount this collateral attack. Only then does the question of the means by which respondents seek to sustain their attack become important.

As might be expected, the cases involving the right of a stranger to the decree to collaterally attack the divorce decree usually arise with respect to foreign judgments. Those" interested will find the cases collected at 12 A.L.R.2d 717, and reference should also be made to 20 A.L.R.2d 1153. Tippin v. Tippin (1960), 148 Conn. 1, 166 A.2d 448 is a case directly in point so far as foreign decrees are concerned. In this state Leichty v. Kansas City Bridge Company, 354 Mo. 629, 190 S.W.2d 201, cert. den. 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009, (see [1, 2] p. 203 of 190 S.W.2d) is probably the leading case on the matter and adopts the view of the Restatement of Judgments, § 13(c) to the effect that a foreign judgment, valid on its face, can be collaterally attacked in this state by extrinsic evidence. See also Stuart v. Dickinson et al., 290 Mo. 516, 235 S.W. 446, and 17 Am.Jur., Divorce and Separation, § 532, page 627, et seq.

We are not here dealing with a foreign judgment, but with a domestic judgment. The rule in Missouri as to domestic judgments differs from our rule as to foreign judgments and is that a domestic divorce decree can not be collaterally attacked unless its invalidity appears on the face of the record. Reger v. Reger, supra; Ray v. Ray, supra; and see Hall v. Smith, Mo., 355 S.W.2d 52 at page 56, where Ray v. Ray, supra, is cited with approval. Compare Gauss v. Gauss, Pa., 1938, 33 Pa.Dist. & Co. R., 706. Accordingly, since the alleged invalidity of the decree of divorce does not appear on the face of the record, it follows that the judgment in the divorce action is not subject to the collateral attack which the respondents seek to make against it. Ray v. Ray, supra; Reger v. Reger, supra.

The petitioner’s motion for the right of temporary visitation should be overruled; the petitioner’s motion for judgment on the pleadings should be sustained.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The petitioner’s motion for the right of temporary visitation is therefore overrilled; the petitioner’s motion for judgment on the pleadings is sustained.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.

PER CURIAM AFTER OPINION

The situation here presented is that the father, petitioner, was granted custody of the two children who are the subject of this writ, by a default divorce decree entered October 24, 1960. He placed the children with the respondents, who have had them at all times since. The respondents allege in their return that the petitioner has certain liabits, traits of character, and pursues a course of conduct which, if true, would ■make him an unfit person to have custody of the children. Yet this court is barred from inquiring into the question of his fitness by reason of In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, and other cases cited therein, which hold that the award of a decree of custody by a divorce court is a final determination of custody with which no •other court can interfere.

Under the facts as alleged, the jurisdiction of the divorce court to modify the decree by changing the custody cannot be invoked. The mother is without interest in the children, and the grandparents are not the proper parties to invoke the divorce court’s aid.

We are thus confronted with a petitioner, for custody of the children, who is charged with being unfit to have them. But we are obliged to award him custody without any hearing upon the charges made against him. The anomaly of this state of affairs is that if the mother were deceased, we could then inquire into the charges made against the father because the divorce action would then be abated. In re Wakefield, supra. So far as the welfare of the children is concerned, she might as well be dead. It is also true that if the petitioner here were seeking to enforce his natural right as a parent, we could inquire into his fitness, if that issue were raised. His position is only altered by a decree granting him custody in a case where his fitness was never in fact a question in issue or a hearing had thereon.

It would appear that the rule in relation to a court’s right to search out the truth, under pleadings such as those before us, should not be so limited. As we construe the Wakefield case, we would have no alternative but to turn the children over to a petitioning father who had a default decree of divorce granting him custody, even though it was alleged that the lives of the children would be endangered thereby.

There are some distinctions between the facts before us and those considered in the Wakefield case. In that case a motion to modify the decree was pending in the divorce court at the time a writ of habeas corpus was sought. However, the court did not predicate its opinion upon this and overruled the case of Ferguson v. Garrison, Mo.App., 262 S.W.2d 163, which is similar in all pertinent respects to the matter before us.

It appears that the law on the point herein discussed should be reexamined by the Supreme Court of Missouri; and under and by virtue of Article 5, § 10, Missouri Constitution, 1945, V.A.M.S., and Rule 84.-05(g), V.A.M.R., we transfer this cause to the Supreme Court for the purpose of reexamining the existing law. It is so ordered.


author: STONE, Judge.

text:
    Iretta M. RAPP, Plaintiff-Respondent, v. INDUSTRIAL COMMISSION OF MISSOURI, Division of Employment Security, et al., Defendants-Appellants.
    No. 8076.
    Springfield Court of Appeals. Missouri.
    August 25, 1962.

      Lloyd G. Poole, Jefferson City, for defendant-appellant, Industrial Commission of Missouri.
    Gordon P. Weir, George Schwartz, Jefferson City, for defendant-appellant, Division of Employment Security.
    Moore, Pettit & Steinle, Aurora, for plaintiff-respondent.
   STONE, Judge.

This is one of three companion (but unconsolidated) cases involving claims for additional benefits under the Missouri Employment Security Law [Chapter 288] by three former telephone operators for Western Light and Telephone Company at Aurora, Missouri, whose employment by that firm was terminated on February 27, 1960, when the Aurora exchange was converted to a dial system. Benefits were paid to each of the three claimants for about five months before a deputy, i. e., “a representative of the division (of Employment Security) designated to make investigations and administrative determinations on claims”, etc. [Section 288.030, subd. 10], made a separate determination as to each claimant that she was ineligible for benefits sought for subsequent weeks because she was not “available for work” during those weeks within the contemplation and meaning of Section 288.-040, subd. 1(2).

From the adverse determination of the deputy, instant claimant, Mrs. Iretta M. Rapp, filed her timely notice of appeal to the appeals tribunal in which claimant stated: “I have contacted every place that I can work. They have no openings and don’t know when will have. One place said would be Mr ring in fall.” Following a hearing before the appeals tribunal, at which claimant was represented by counsel, the appeals referee made a detailed finding of facts, affirmed the deputy’s determination, and denied benefits for the period of six weeks from August 7 through September 17, 1960. Section 288.190. Claimant’s application for review by the Industrial Commission of Missouri (hereinafter referred to as the Commission) having been denied, the decision of the appeals tribunal became the decision of the Commission for judicial review [Section 288.200, subd. 1]; and thereafter claimant sought and obtained such judicial review by commencing an action in the Circuit Court of Lawrence County against the Commission and the Division of Employment Security (hereinafter called the Division). Section 288.210; as amended Laws of 1961, S.B. No. 346. In due time the circuit court entered judgment finding that the decision of the Commission was “unsupported by competent and substantial evidence” and remanding the cause to the Commission for further proceedings. With the Commission and the Division thereby cast in the role of aggrieved parties, the cause comes to us on their appeal.

Before briefly reviewing the facts, it may be well for us to remind ourselves that the scope of judicial review in proceedings for benefits under the Employment Security Law [Chapter 288] is the same as in proceedings for benefits under the Workmen’s Compensation Law [Chapter 287]. Bussmann Mfg. Co. v. Industrial Com’n. of Missouri, Mo.App., 327 S.W.2d 487, 492 (8); Union-May-Stern Co. v. Industrial Com’n. of Missouri, Mo.App., 273 S.W.2d 766, 768(1). Thus, although on judicial review the courts are authorized to determine whether, upon the entire record, the Commission reasonably could have made the findings and decision under consideration, this does not mean that either the circuit or the appellate court should or may substitute its own judgment on the evidence for that of the Commission; but, on the contrary, the reviewing court may set aside the findings and decision only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and decision. Kilgore v. Industrial Com’n. of Missouri, Mo.App., 337 S.W.2d 91, 96-97; Division of Employment Security v. Industrial Commission, Mo.App., 242 S.W.2d 593, 597(2); Meyer v. Industrial Com’n. of Missouri, 240 Mo.App. 1022, 223 S.W.2d 835, 839(4).

Instant claimant was 53 years of age at the time of hearing on September 28, 1960. With her husband and their 17-year old son, she resided on a farm 3½ miles northeast of Aurora but had an automobile available for her use in driving to and from work. She had worked 26 years as a telephone operator, the last 7 of which were for Western Light and Telephone Company; and, at the time of termination of her employment, her wage was $1.47 per hour.

Referring to the period for which benefits were denied, i. e., August 7 through September 17, 1960, claimant first stated, in general terms, that she had sought work “two days each week”; that each week “I tried at least two (places), sometimes I tried more than that”-, and that “I contacted all the stores in Aurora, and the Midwest Map and the Mid-America (Advertising Company).” (All emphasis herein is ours.) But, she also said that her weekly claim forms, each of which bore her signature certifying that it was true and correct, listed all of the places where she had sought work; and, in the course of subsequent detailed examination concerning those weekly claim forms, she agreed that each such form showed that she had made “employment contacts” with only two firms during the week for which the claim form had been submitted and that both such contacts had been made on the same day of that week. In summary, these weekly claim forms demonstrated that, during the period of six weeks from August 7 through September 17, I960, claimant had sought work on only six days during that entire period and her cumulative efforts on those six days were limited to only twelve “employment contacts,” all of which had been in Aurora and two of which had been return visits to firms previously contacted during the same six-week period where there was no prospect of obtaining employment. Thus, she admittedly had sought work at only ten places, two of which were doctor’s offices. From the last United States census, of which we take judicial knowledge [Missouri Public Service Co. v. Barton County Elec. Coop., Mo.App., 353 S.W.2d 818, 819(1)], we note that in 1960 the population of Aurora was 4,683 and the population of the neighboring city of Monett was 5,359.

On examination by the appeals referee, claimant said that she “would work for $1 an hour” and, when asked whether “that would have been the lowest wage you would have accepted,” bluntly answered “yes.” In response to a subsequent inquiry by her counsel as to whether “you (would) have gone to work for them to start, I mean just the starting rate, if it was less than $1 an hour,” claimant likewise said “yes.” But thereafter, in stating what she had told the Monett office of the Division, claimant significantly related that “they asked me how much I would have to have, and I said at least $1 an hour in Aurora, and she wanted to know if I would come to Monett, and she said how much, and I said at least $1.50.”

The burden of establishing her right to benefits under the Employment Security Law rested upon claimant. Wolpers v. Unemployment Compensation Commission, 353 Mo. 1067, 186 S.W.2d 440, 442(3); National School of Aeronautics v. Division of Employment Security, Mo.App., 226 S.W.2d 93, 95(4). She assumed “the risk of non-persuasion” [Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 544, 183 S.W.2d 77, 80]; and, as in proceedings before other fact-finding administrative agencies [e. g., Scott v. Wheelock Bros., 357 Mo. 480, 209 S.W.2d 149, 151(3); State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61, 65(9,10); Norman v. State Dept. of Public Health & Welfare, Mo.App., 283 S.W.2d 143, 146(4, 5), and cases there cited], the trier of the facts in this proceeding, before whom claimant appeared, had the right to believe some portions of her testimony and to disbelieve other portions thereof. Cross v. Industrial Com’n. of Missouri, Mo.App., 359 S.W.2d 494 [No. 8077]; Meyer v. Industrial Com’n. of Missouri, supra, 223 S.W.2d loc. cit. 840(7). Furthermore, if from claimant’s testimony two different inferences or conclusions reasonably might have been drawn, each of such inferences or conclusions being consistent with the testimony although inconsistent with the other, it was for the trier of the facts to resolve the issue and to draw one of the allowable inferences or conclusions. Kilgore v. Industrial Com’n. of Missouri, supra, 337 S.W.2d loc. cit. 96, 100; Union-May-Stern Co. v. Industrial Com’n. of Missouri, supra, 273 S.W.2d loc. cit. 768(2). And, the judicial inquiry of the reviewing court is not whether a contrary conclusion might have been permissible, but whether, upon the entire record, the Commission reasonably could have made the findings and decision under consideration here. Cf. Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 747(5); Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344, 349(5), and cases collected in footnote 3.

An unemployed individual is eligible to receive benefits only if the Commission finds, from competent and substantial evidence, that the conditions imposed by statute have been satisfied. Producers Produce Co. v. Industrial Com’n. of Missouri, 365 Mo. 996, 291 S.W.2d 166, 173(3); Haynes v. Unemployment Compensation Com’n., supra, 353 Mo. loc. cit. 544, 183 S.W.2d loc. cit. 80. Since enactment by the 59th General Assembly of the first Missouri legislation in this field, then forthrightly denominated as the “Unemployment Compensation Law” [Laws of 1937, p. 574], one of the statutory conditions of eligibility to receive benefits has been that “he (or she) is able to work, and is available for work.” Laws of 1937, p. 590; C.S.S.B. 36, § 9(c). In discussing the quoted condition, our Supreme Court said in Haynes v. Unemployment Compensation Com’n., supra, 353 Mo. loc. cit. 547, 183 S.W.2d loc. cit. 82, that the General Assembly thereby “required a sufficient showing of evidence to support a finding by the commission, and a finding by the commission, that the claimant was during said week 'capable of being used to accomplish a purpose’ for work; that he was ‘at disposal; accessible or attainable’ for work; and that he was ‘ready, handy, convenient, usable and obtainable’ for work. See Webster’s New International Dictionary, Second Edition.”

In 1943, the 62nd General Assembly amended the quoted condition by adding thereto the definitive and delimiting proviso, “provided, however, that no person shall be deemed available for work unless he has been and is actively seeking work.” Laws of 1943, p. 933; S.B. 150, § 5. Shortly thereafter, our Supreme Court pointed out in Wagner v. Unemployment Compensation Com’n., 355 Mo. 805, 808-809, 198 S.W.2d 342, 344, that the phrase “available for work” had been given “a more positive construction of meaning” by addition of the proviso, and that thereby “it is required that a person . . . must (in order to be deemed ‘available for work’ as now construed in accordance with legislative mandate) have been and be ‘actively seeking1 work, that is, not passively available and waiting for work, but actively ‘in search of’ work. Webster’s International Dictionary, Second Edition, p. 2266.”

In 1951, the 66th General Assembly adopted the more sophisticated title of “Missouri Employment Security Law” [Laws of 1951, p. 565; Section 288.010], although no doubt fully aware that “a rose by any other name would smell as sweet” [Shakespeare, Romeo and Juliet, Act II, Sc. 2, Line 43] or, as we might put it, an act by any other name would remain the same. But, the quoted condition of eligibility (with the added proviso) remained unchanged until 1957, when the 69th General Assembly amended the definitive and delimiting proviso by adding the words hereinafter italicized so that thereafter it read, “provided, however, that no person shall be deemed available for work unless he has been and is actively and earnestly seeking work.” Laws of 1957, p. 539; Section 288.-040, subd. 1(2). In putting upon the added language, “honestly and faithfully, its plain and rational meaning” [Cummins v. Kansas City Public Service Co., 334 Mo. 672, 684, 66 S.W.2d 920, 925; Artophone Corp. v. Coale, 345 Mo. 344, 353, 133 S.W.2d 343, 347] and in taking the words of the amended statute “in their plain or ordinary and usual sense” [Section 1.090], we consult the same authority, to which our brethren of the high court have turned; and, so doing, we conclude that, to be deemed “available for work” under the statute [Section 288.-040, subd. 1(2)], which now includes the specific requirement that the unemployed person “has been and is . . . earnestly seeking work,” a claimant must adduce competent and substantial evidence from which the Commission reasonably may find, and is persuaded to find, that such claimant’s search for work is “zealous, ardent, sincere, hearty,” since “earnest” is synonymous with those terms and “always connotes sincerity.” Webster’s New International Dictionary, Second Edition, p. 808.

Although, as others have stated, the legislation presently known as the Missouri Employment Security Law “provides a paternalistic system of protection for the employee,” that system is designed not only for the employee’s individual benefit but also for the general welfare [Krisman v. Unemployment Compensation Com’n., 351 Mo. 18, 23, 171 S.W.2d 575, 578(5); Howell v. Division of Employment Security, etc., 358 Mo. 459, 465, 215 S.W.2d 467, 472]; and it appears that the legislative intention, as evidenced in the initial enactment and as confirmed and strengthened by amendments from time to time (including those hereinbefore discussed), has been from the outset to help only those who sincerely undertake to help themselves. So it is that our courts have held that one may not be “deemed available for work” [Section 288.-040, subd. 1 (2) ] who voluntarily, arbitrarily and unreasonably restricts or limits either the character of work which he or she would undertake [cf. Haynes v. Unemployment Compensation Com’n., supra, 353 Mo. loc. cit. 547, 183 S.W.2d loc. cit. 82 (11)] or the wage which would be acceptable [cf. Parker v. Unemployment Comp. Com’n. of Missouri, Mo.App., 221 S.W.2d 840, 842] or the area within which employment is sought or would be taken. Cf. Fly v. Industrial Com’n. of Missouri, supra; Carlton v. Division of Employment Security, Mo.App., 246 S.W.2d 388, 390.

Without belaboring the facts, suffice it to say that, with all of the foregoing in mind, we have no doubt but that, on the record before us, the Commission reasonably could have found that, during the period from August 7 through September 17, 1960, instant claimant was not “available for work” within the contemplation and meaning of Section 288.040, subd. 1(2). Accordingly, the judgment of the circuit court is set aside and the cause is remanded with directions to enter judgment affirming the decision of the Commission.

RUARK, P. J., and McDOWELL, J., concur.

      . The companion cases are Fly v. Industrial Com’n. of Missouri, Mo.App., 359 S.W.2d 481 [No. 8075], and Cross v. Industrial Com’n. of Missouri, Mo.App., 359 S.W.2d 494 [No. 8077].

      . Except, as otherwise specifically stated, all statutory references are to RSMo 1959, V.A.M.S.

      . In this connection, note also the legislative declaration of public policy prefacing the first unemployment compensation law. which included the statement that “the public good and the general welfare . . . require the enactment of this measure . . . for compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own." Laws of 1937, p. 574; O.S.S.B. 30, § 2.