author: G. DERK GREEN, Special Commissioner.

text:
    Rose Marie BAFARO, (Plaintiff) Respondent, v. Josephine PEZZANI, (Defendant) Appellant.
    No. 31382.
    St. Louis Court of Appeals. Missouri.
    March 17, 1964.
    James J. Amelung, Holtkamp, Miller, Risch & Amelung, St. Louis, for appellant.
    Joseph J. Dolgin, O’Connor, Dolgin & Godfrey, Clayton, for respondent.
   G. DERK GREEN, Special Commissioner.

The plaintiff, Rose Marie Bafaro, filed suit for $9,500 for injuries received in a collision between the car she was driving and one driven by defendant. The petition alleged both primary negligence and humanitarian negligence, but plaintiff submitted the case only on the charge of humanitarian negligence. The jury returned a verdict for defendant. Thereafter, the court granted plaintiff a new trial for error in giving defendant’s sole cause Instruction No. 11. Defendant has appealed and raises two points: First, that plaintiff failed to make a submissible case of humanitarian negligence and secondly, that Instruction No. 11 was not prejudicially erroneous. If defendant’s first contention is correct and plaintiff failed to make a sub-missible case, error, if any, in the instruction was immaterial and a new trial should not have been granted. Kirks v. Waller, Mo., 341 S.W.2d 860.

On the first point, we must state and review the evidence in a light most favorable to plaintiff, give plaintiff benefit of all favorable inferences arising therefrom and disregard defendant’s evidence unless it aids plaintiff’s case. Brown v. Wooderson, et al., Mo., 362 S.W.2d 525; Kirks v. Waller, Mo., 341 S.W.2d 860; Begley v. Connor, Mo., 361 S.W.2d 836.

The collision occurred on January 14, 1960, sometime between 8:30 and 8:45 A.M., in the 5300 block of Wilson Avenue, an east-west street between Macklind, the first street to the west, and Edwards, the first street to the east, in the City of St. Louis. The defendant, Josephine Pezzani, was headed eastbound on Wilson and collided with the plaintiff’s automobile which had been parked at the south curb of Wilson Avenue and which was pulling out, or attempting to pud out, at the time of the collision. The width of Wilson Avenue at this point is not precisely established, but it is reasonably definite that with cars parked at both curbs, there was not room for two cars to meet and pass in the traveled portion remaining, although one witness thought four cars could be placed side by side in the street. On the day of the collision, plaintiff had taken her daughter to nursery school and had parked her car on the south side of Wilson Avenue headed east. Cars were parked in front of and. behind plaintiff’s car at the south curb and. directly opposite her car on the north curb.. There was a slight downgrade to the east. It had rained before the collision and it' was misty at the time. The plaintiff and others were carrying umbrellas, and plaintiff’s windshield wiper was on.

After plaintiff took her daughter into the nursery school, she returned to her car, got into it, closed the umbrella, threw it into the back seat, and closed the door. She observed a car parked behind her and another about three feet in front. She moved the shift lever from a “park” position to-“neutral,” started the motor and released the brake. She looked at her inside rear view mirror but could not see satisfactorily; then she looked in her outside rear view mirror but could not see satisfactorily. With the car in neutral and her foot on the brake, she permitted the car to roll forward down the slight grade so she could look toward the rear through the window, which was down about four inches. When she was five or six, or possibly ten, inches from the curb, she turned her head to look out the window and at that instant her car was struck by one being driven eastward by defendant. Plaintiff did not give any hand or directional signal and her lights were not on. She did not see defendant’s car before the instant of the collision and then it was so close she “could not put her hand between the two cars.” She cannot estimate defendant’s speed, but said that defendant admitted at the time to going 30 miles per hour. The right front fender of defendant’s car struck the left side of plaintiff’s car from the left door forward. The defendant’s car stopped about one car length ahead of plaintiff’s car. There were no cars coming from the east and no other moving traffic. Plaintiff estimated that five seconds elapsed from the time she got into her car until the collision and that two or three seconds elapsed from the time she •started to move forward until the collision.

Defendant contends that there was no ■substantial testimony from which the jury ■could reasonably find where the plaintiff ■came into a position of imminent peril and consequently where the defendant’s duty to .act began. To support this theory, defendant points out that there was no testimony in feet as to the width of Wilson Avenue, the width of plaintiff’s car, defendant’s car, ■or the car parked at the north curb; that there was no testimony of the speed of ■plaintiff’s vehicle as it pulled out, or testimony that the defendant had the time, ability, or place to swerve her car to avoid the collision.

Plaintiff does not question the lack ■of evidence as to the measurements in feet as to the width of the street or the width of the respective cars, but relies upon the testimony that the street was almost four cars wide and possibly four cars could be placed side by side, but two cars could not meet and pass with cars parked on both sides. Plaintiff contends that this was substantial evidence upon which the jury could find that defendant had a safe place to swerve lier car to the left or north of its path to avoid the collision. On this point we agree with the plaintiff.

On the time factor, plaintiff further undertakes to sustain a submissible case upon this theory: According to her estimate, two or three seconds elapsed from the time she released the brake and started to move forward until the impact. Taking the time as three seconds and the speed of defendant’s car as 30 miles per hour, as plaintiff said defendant admitted, at the time plaintiff’s car started to move, defendant was 135 feet back of plaintiff’s car; or taking the speed of 20 to 25 miles per hour, as defendant testified, she was 90 to 100 feet away; or taking the slower speed of 20 miles per hour and the time defendant estimated she had, the distance would be 30 feet and in either case, plaintiff contends this gave defendant time and space to swerve the slight degree necessary to avoid the collision.

Both parties cite authorities to the effect that under the humanitarian rule the first and basic fact of liability is plaintiff’s position of imminent peril. “The peril as a basic fact of the humanitarian doctrine ‘must be imminent, that is, certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create imminent peril.’ (Cases cited) No duty arises under said doctrine so long as the plaintiff is only ‘approaching’ a position of imminent peril. * * * A plaintiff, adult or child, must remove his case from the field of speculation, conjecture and surmise.” Kirks v. Waller, 341 S.W.2d 860, l. c. 863, 864, and cases there cited. “Of course, ‘under our practice the jury must find that the plaintiff was in peril, and it must then determine whether such peril was, in fact, discoverable * * * soon enough for defendant to have avoided the collision by the use of the means submitted * * *.’ ” Daniels v. Smith, Mo., 323 S.W.2d 705, 712; Taylor v. Missouri, K & T Railroad Company, 357 Mo. 1086, 212 S.W.2d 412, 414.

Plaintiff, in making the computations stated above, assumes the duty of defendant to take action to swerve her car the instant plaintiff’s car started to roll forward, at the very beginning of a three second period she estimates elapsed after the roll forward started and before the collision. Plaintiff also attempts to extend the zone of peril because of the alleged obliviousness of plaintiff, because she testified she did not see defendant and cites Yarrington v. Lininger, Mo., 327 S.W.2d 104, at page 110, where the court stated: “But, when the plaintiff is oblivious, it has been said that the zone of imminent peril is widened to that point where it was or should have been reasonably apparent to the defendant in the exercise of the required degree of care that the plaintiff was oblivious of the approach of defendant’s moving vehicle and was intent on continuing across its path.”

Plaintiff further relies upon Wabash Railroad Company v. Dannen Mills, Inc., 365 Mo. 827, 288 S.W.2d 926, at page 929, where the Supreme Court said: “Thus the greater the speed of the approaching vehicle, the wider the zone of imminent peril; hut obliviousness (with reasonable appearances of obliviousness) widens it still farther. In such a case as this, the zone of imminent peril began and the duty of the engineer arose when it was or should have been reasonably apparent to him that the truck driver was oblivious of the approaching train and was intent on continuing across its path.” Plaintiff reasons that taking the evidence in the most favorable light to plaintiff’s case, three seconds elapsed from the time the plaintiff’s car started to move forward and the time of the collision; that defendant’s car traveling at 30 miles per hour was 135 feet away; and that this estimate of elapsed time and the admission of speed on the part of defendant was sufficient to warrant the jury in so finding. Plaintiff contends that this time and distance, or even the shorter time of two seconds and the slower speed of 20 miles per hour, afforded the defendant adequate time, distance, and space to swerve around plaintiff’s car. To support this contention without additional testimony, plaintiff cites Goggin v. Schoening, Mo.App., 199 S.W.2d 87, 1. c. 94, where the court said: “The mobility of modern passenger cars, and the celerity with which they may be swerved, and what may be done in a second or fraction of a second to avoid impending danger, the distance such cars will travel at a given rate of speed at a given time, and the fact that a car when driven at a lower rate of speed can be more easily and securely controlled and managed than when driven at a high rate of speed, are matters of common knowledge.” Plaintiff in her reasoning assumes the duty on defendant to take action to swerve her car the instant plaintiff’s car started to roll forward at the curb, at the very beginning of the three second period. “In the absence of obliviousness, the position or danger zone of imminent peril of a person approaching the path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop' short of it.” Lotta v. Kansas City Public-Service Company, 342 Mo. 743, 117 S.W.2d 296, l. c. 300, and cases there cited.

In the instant case, we cannot find' that there was any evidence upon which' the jury could have found that plaintiff was. in a position of discoverable, imminent peril at the very time she started to roll forward. If plaintiff was in actual peril because of her obliviousness, it is not shown by the evidence that such peril was apparent or discoverable to defendant. Plaintiff had looked in her inside rear view mirror, had looked in her outside rear view mirror, had her window rolled down for the purpose of observing traffic to the rear, and was moving at an undetermined but necessarily slow speed. With her foot on the brake, by her own efforts she could have stopped short of the path of defendant’s car at any time. There was nothing to indicate to the defendant that she would not do so. She moved less than three feet forward and less than one foot to the left. She was not in a position of imminent peril as she sat in her car before starting the roll forward. She-was not in a position of impending peril until she reached very near the point of impact. There is no evidence to warrant a; finding that defendant could have swerved her car and avoided the collision after the-plaintiff actually reached a position of peril,, or after it became apparent to defendant that plaintiff was unable to or would not stop her vehicle before entering the path of defendant’s automobile.

Having reached the conclusion that the plaintiff failed to make a submissible case of humanitarian negligence, it is not necessary to consider the alleged error in Instruction No. 11. The trial court should have sustained a motion for directed verdict for defendant. The verdict of the jury was for the right party. Accordingly, the order granting a new trial should be set «.side and the cause should be remanded with directions to reinstate the verdict of the jury and enter judgment thereon. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by G. DERK ■GREEN, Special Commissioner, is adopted as the opinion of the Court.

Accordingly, the order granting a new trial is set aside and the cause is remanded ■with directions to reinstate the verdict of the jury and enter judgment thereon.

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


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    William Clem RIGGS, Jr., Employee-Claimant-Appellant, v. A. P. GREEN FIRE BRICK COMPANY, a Corporation, Employer-Defendant-Respondent.
    No. 31520.
    St. Louis Court of Appeals. Missouri.
    March 17, 1964.

      Edwards, Wright & Seigfreid, Jerome Seigfreid, Mexico, for employee-claimant-appellant.
    Barnes & Barnes, Latney Barnes, Mexico, for employer-defendant-respondent.
   BRADY, Commissioner.

This is an action for workmen’s compensation. The employee alleged that he suffered from a permanent and total disability due to contacting the occupational disease “silicosis.” The referee ruled that the employee was entitled to compensation. Upon review the Industrial Commission, hereinafter referred to as the commission, reversed this award and entered its order denying compensation. The circuit court found that there was sufficient competent evidence in the record to substantiate the decision of the commission and affirmed that decision. The amount claimed by the employee is $40.00 per week for 300 weeks, being a total sum of $12,000.00. After the expiration of that period, he also claims the sum of $27.50 per week for the remainder of his life. This court has jurisdiction, Scannell v. Fulton Iron Works Co., 365 Mo. 889, 289 S.W.2d 122.

The claimant was 44 years of age at the time of the hearing. He began his employment with the A. P. Green Fire Brick Company, hereinafter referred to as the company, on September 18, 1941 and went to work in the finish grinding department where all kinds of brick were ground to, various sizes and shapes. There were not sufficient dust collectors to remove the dust from the finish grinding room. Respirators; were furnished the employees by the company, but it was not always possible to get sufficient air through the respirators, and moreover they would become clogged with dust and would also freeze in the winter time. Even when working at their best, the respirators did not completely eliminate the dust which permeated the clothing of the employees and entered the nose and throat of the workmen. In March of 1945 the employee went into military service. He returned to the company in April of 1946 and continued to work in the finish grinding department until September of 1951. In September of that year he became a shed captain and never thereafter wore a respirator except for two weeks when he was sanding some trucks. His work was then in the north shed which was located some sixty feet north of the finish grinding department, and it was his estimate that 40%, to 50% of the dust from the grinding department went into the north shed. In 1959 the employee was transferred to the kiln department where the dust was much lighter, but in July of that year appellant returned to the north shed as shed captain and remained there until his employment was terminated due to reasons of health on May 11, 1960.

Our duty upon appeal of a case of this nature is well settled. In Thacker v. Massman Construction Co., Mo., 247 S.W. 2d 623, 1. c. 623, 627, the Missouri Supreme Court en Banc has said: “As the reviewing court, we may not substitute our own judgment on the evidence for that of the Industrial Commission, but we are authorized ‘to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.’ (citing cases). In determining these issues we first view the record in a light most favorable to the findings of the Commission, consider the favorable inferences which the Commission had a right to draw from the evidence before it, and then determine whether the Commission’s findings, even if supported by competent and substantial evidence, are contrary to the overwhelming weight of evidence in the whole record.” See also Fisher v. Hennessey, Mo.App., 329 S.W.2d 225; Missouri Digest, Workmen’s Compensation, § 1939. We will state the evidence with these rules in mind. We have included portions of testimony given by the employee’s medical experts because we think that when their testimony is read in the context of the whole record, even the testimony of the employee’s experts supports the commission’s action in denying compensation.

It was admitted that the company was operating under the provisions of the workmen’s compensation law of this state, that the employee was in the company’s employment on or about July of 1960 and that the company had notice of the inception of the occupational disease. It was further admitted that a claim for compensation was timely filed, that the maximum compensation rate of $40.00 a week would apply, and that no compensation or medical expense had been paid by the company. The employee and employer stipulated that at the times pertinent to this case there was free silica in the air at the company’s plant.

During the term of his employment the employee did not suffer from pneumonia. Neither did he contact any kind of virus disease of the lungs, nose or throat, nor did he suffer from a severe cold during this period. The first time he noticed any difficulty in breathing was in October of 1958. However, the employee testified that he had been hospitalized in October of 1957 for “Shortness of breath and pain in the chest.” He also admitted that he was again hospitalized in 1958 for the same reason and went to the hospital three times in 1959 for the same thing. He was hospitalized once in 1960 for this ailment and twice for other causes. The employee further testified that on this occasion in October of 1958 he experienced shortness of breath and pain across his chest; that he consulted a physician who put him into the hospital and kept him there for four days; upon being released he went to Hannibal and entered a hospital under another physician’s directions; that when he returned to work he went to his foreman and filled out a notice of employment termination giving as a reason that he had suffered from a heart attack; that Dr. Kallen-bach, who had hospitalized him on June 6, 1959 for shortness of breath and pain in the chest, had told him he had a “Coronary insufficiency”; that on another occasion he was told that he had a coronary thrombosis; that the pain in his chest came upon him suddenly; and that he had never suspected his trouble was in any way connected with the breathing of dust or his working conditions until July of 1960 while he was being treated by Doctors Smith and Grayson.

In July of 1960 the employee consulted Dr. Smith, a thoracic surgeon. The doctor administered some tests and as a result of his examination concluded that there were no defects in the employee’s heart. He did find that the employee was slightly obese and became dizzy on slight exertion. He testified it is infrequently that obesity accompanies silicosis when that disease has reached its latter stages. When the employee first came to see Dr. Smith, the employee told him that he had had pains in his chest and that these had been relieved by nitroglycerin tablets. He identified the tablets as the kind most generally and frequently used to correct heart trouble. He took X-rays which he stated showed “ * * * a very minimal bilateral pulmonary infiltrate with coarse bronchial markings at the right base * * * ” which were not extensive in nature. He was asked to compare X-rays taken in 1946 with the X-rays he took in 1960 and answered that he did not feel that there was much change and that the bronchial markings to which he referred were ■obvious in both films. Dr. Smith stated ■that he observed no silicotic nodules in the X-ray films and stated that generally a man is not considered to have silicosis until it •shows up in the X-ray. However, he did not agree with that general rule.

Due to his clinical findings, Dr. Smith did •a lung biopsy on the employee and submitted the tissue to Dr. Johnson for a pathological report. This witness testified that there were probably more than 3,000 kinds ■of pneumoconiosis, and his conclusion that the employee’s pneumoconiosis had any connection with silica was made on the basis •of the employee’s history, the finding of the silicon particles by the pathologist and ■upon mass spectrology or spectrophotometry. However, upon cross-examination he testified that his diagnosis that the employee’s conditon was due to silicosis was * * * entirely * * * ” based on the findings of Dr. Johnson that there were silicon particles in the employee’s lung. He further stated that if persons equally competent to Dr. Johnson determined that there were no silicon particles in the employee’s lung, he would not have diagnosed silicosis in the absence of the findings by actual analysis that the employee had an increased amount of silicon in his lungs. Dr. Smith testified that as a result of his clinical analysis and the X-rays and other information that he was able to obtain, it was his opinion that the employee suffered from pneumoconiosis secondary to silicosis. He rated the employee as 100% disabled.

Dr. Johnson examined the biopsy specimen of the employee and found the lung tissue to be abnormal. It showed evidence of scar formation, and he found associated with the scars fragments of refractile material which were crystalline in nature. He found some hypertrophy of the blood vessels consistent with pulmonary hypertension.

Dr. Johnson found the specimen he examined to demonstrate fibrosis and that the scar tissue formations were accentuated in focal areas. His testimony was that while one could call this nodulation, “ * * it is not the lesion as conventionally used in silicosis. The nodulation of silicosis is a larger process that is visible grossly. It doesn’t require a microscope. They are not microscopic nodules, they are large gross nodules.” He felt this absence of nodules could be explained by the fact that the tissue specimen he examined was taken from the periphery of the lung rather than the central zone, and the disease of pneu-moconiosis is usually most marked in the central zone and diminishes as you approach the periphery. The doctor also testified that the very absence of the characteristic silicotic nodules rendered his 'diagnosis of silicosis less certain.

With respect to the refractile material he found, Dr. Johnson stated that the exact nature of the crystalline substance could not be determined by a microscopic examination, but that they were compatible with quartz which is a common substance that can cause the disease known as silicosis. However, he also testified that while it was compatible with quartz, it was compatible with many other things and that a great number of agents living and nonliving other than silica could cause the condition he found in his examination of the specimen. Dr. Johnson testified these crystalline substances might be metallic or carbonaceous and that it was only because of the history which the employee gave him that they were identified as silicious. This witness admitted that he did not examine the refractile crystalline particles observed by him under polarized light, although he recognized this as an accepted procedure. When asked if he agreed with a statement by one of respondent’s doctors to the effect that these particles were not silicious, he stated, “ * * * My interpretation was that they could be.”

Dr. Johnson stated his conclusion in this manner, “ * * * I interpreted the disease as being a pneumoconiosis oi-the lung. There was a history of an exposure to silica dust and findings are consistent with the diagnosis of silicosis.” He admitted that although his diagnosis of pneumoconio-sis was certain, he had to rely upon the history of exposure to silica dust to arrive at a diagnosis of silicosis. He was asked this question and made this answer: “Q When you made your diagnosis you diagnosed it as pneumoconiosis and then simply said that it was best explained by history as being silicosis? A Yes, sir.” At the conclusion of his testimony the referee asked for his conclusion as to the tissue specimen and its condition without reference to any history given to him by the employee. He stated that his “ * * * diagnosis was pneumoconiosis due to an unidentified foreign material.”

Dr. Ben Jolly, the employee’s treating physician, first saw him in February of 1960 when the employee gave a history of a heart attack and hospitalization for that ailment. The doctor next saw the employee when he was complaining of a pain in his abdomen which the doctor diagnosed as a spastic colon. In April of 1960 when Dr. Jolly again had the employee admitted to the hospital, his diagnosis was that the employee was suffering from emphysema and bronchitis, and the doctor stated that the employee made no complaints about his lungs. Dr. Jolly gave his opinion that the employee was suffering from pulmonary fibrosis due to silicosis and was 100% disabled. He gave as a. basis for that diagnosis the employee’s history, his physical findings and pathological report.

A part of the lung biopsy specimen was also submitted to a Dr. Pickett, a professor of agricultural chemistry and supervisor of the spectrographic laboratory of the University of Missouri. Dr. Pickett explained the working of a spectrograph and stated that the qualitative result of a spectro-graphic analysis is greater than the quantitative result. For the purpose of his examination Dr. Pickett was furnished with two pieces of tissue, one being the specimen from the employee’s lung and the other being a specimen of unknown origin from a lung and referred to as the control sample. His testimony was that spectrographic analysis determined that the employee’s specimen had from two to ten times as much as the amount of silicon found in the control sample. It also contained from ten to one hundred times more tin, and slightly more iron than the control sample. He found both the employee’s specimen and the control sample to contain evidence of silicates, but he could not state on the basis of his examination whether the employee’s sample had more or less than a normal amount of silicon. It was also impossible for him to tell whether the silicon in either the employee’s specimen or the control sample was metallic or nonmetallic. Neither could he tell the chemical forms of the tin, iron or silicon which he found in the specimen. His further testimony was that there were thousands of kinds of silicates and that spectrographic analysis could not determine the amount of free silica.

On behalf of the respondent Dr. Waggoner testified that he examined the X-rays taken in 1946, 1947, 1949 and 1960 and that he could see no evidence of active or progressive pathology. He also noted basilar markings that the other medical men had commented on and stated that while they were prominent, he saw nothing that looked like a bronchial infiltrate. He attributed the exaggerated markings around the bronchial tree to what he characterized as the usual Missouri sinus trouble. This witness did not find any fibrosis to be shown in the X-rays. Dr. Waggoner’s examination and testimony was limited entirely to the X-rays.

A part of the lung specimen was forwarded for examination to Dr. Schepers, a pathologist who specializes in the study of dust diseases and tuberculosis. Dr. Schep-ers testified that he was the author of numerous papers on pneumoconiosis and silicosis; that his examination of the slides and a tissue block revealed a thickening of the pleura which contained abundant blood vessels; and that this was significant, because the abundance of blood vessels in the pleura reduced the possibility that the thickening could have been caused by silicosis. His opinion in this regard was also bolstered by the fact that he found the lymphatic channels in the pleura to be prominent, which also suggested to him that the thickening of the pleura was not caused by silicosis. Dr. Schepers found the alveolar spaces beneath the pleura to be distended with a breakdown of their intervening walls and testified that this is a condition of emphysema. He also testified that in the alveolar walls there were abundant blood capillaries over their surfaces and coursing down through their structure. He stated that this was significant, because in the majority of pneumoconiosis cases caused by silica dust these capillaries tend to be closed rather than be prominent. His findings with regard to the respiratory passages, the bronchi, the bronchioles and the alveolar ducts also were given significance in his testimony. He found these air passages to be deprived of their epithelial surfaces and mucosal layers, and his conclusion was that this was a condition of bronchitis or bronchiolitis.

With regard to the particles which had been found by Dr. Johnson, it was Dr. Schepers’ opinion that they were not of silica origin. He testified that he examined them under polarized light and found they were not visible under such light. He stated that when particles were visible under polarized light, they were referred to as being birefringent and that in the diagnosis of silicosis he would expect to find birefringent material, because silica in the form of quartz is birefringent. His further testimony in this regard was that microscopic examination of these particles did not lead to their definite identity, but that he found none of the acceptable criteria of silicosis present. He further stated that these particles were probably only present as a coincidence and were possibly inert material. Dr. Schepers found these particles not to be excessive as compared to normal lung tissue, and stated, “ * * * I have seen more opaque material in city dwellers who breathed the dust from the city air.” He concluded that the opaque particles observed by him in the specimen were either carbonaceous or metallic and not quartz or silica.

Dr. Schepers’ further findings as to the significance of the opaque particles were related to his finding that the particles were more numerous in the areas where there was the least fibrosis and that in those areas where there was the most fibrosis the particles were almost absent. Based upon this finding, his testimony was that the fibrosis had nothing to do with the presence of these particles and that if the employee had silicosis, he would have expected to find a high concentration of silica in the fibrosis. In this regard he testified, “ * * * The very fact that these particles were absent or found occasionally in the scar tissue is of great diagnostic importance. And this finding and this finding alone can rule out silicosis.”

Dr. Schepers also placed emphasis upon the absence of any silicotic nodules, testifying that it is the consensus of opinion among medical men that the presence of silicotic nodules must be demonstrated by X-ray or by sectioning before a diagnosis of silicosis can be made. His further testimony was that while making a diagnosis it is helpful to have an occupational and clinical history, photographic evidence and physical examination. However, it was possible to come to a conclusive diagnosis of a condition such as silicosis even in the absence of these elements. He did testify that silicosis starts without nodules, because it starts the day a silica particle enters the lung and kills a cell. However, he went on to state that silicosis does not become recognizable medically until much later. He testified that this employee’s history of a coronary and hospitalization would be compatible with emphysema and fibrosis around the blood vessels.

The employee’s X-ray films were submitted by the company to a Dr. Hannon. The films studied covered the period 1946 to 1960 or 1961. Dr. Hannon was asked to define silicosis and gave the definition of that disease as follows: “Silicosis is a condition of the lungs caused by the prolonged inhalation of silicon dioxide and is characterized by diffuse fibrotic lesions throughout both lung fields which can be demonstrated by suitable X-ray films and in pathological specimens. Silicosis occurs in various stages of severity, and in the severer forms it can cause coughs, shortness of breath, tightness in the chest and a lessened capacity for work.” Dr. Han-non testified that if free silica is retained in the lungs, it causes fibrosis; that he found the films he examined to show a condition within normal limitation except for an increase in the basilar bronchial markings and a small area of fibrosis extending out from the level of the second interspace with some calcification along the peribronchial markings. He found no essential or significant changes in the X-rays and stated that he could see no evidence of silicosis in the employee’s X-rays. He further testified that he had been instructed to and did observe the employee during the course of the trial, paying particular attention to his respiratory rate, and it was his opinion there was no connection between the employee’s respiratory rate and the X-ray films. He admitted that there was some fibrosis present, but he found no evidence of any silicotic nodules. Dr. Hannon further testified that he had studied at least 20,000 chest films of people who either had or were suspected to have silicosis and stated that the silicotic nodules present in a lung show up on an X-ray film in a sort of marbled, polka-dot appearance which some medical people refer to as a snow storm effect. He saw no such evidence in any of the films of the employee.

With reference to the fact that Dr. Johnson had made a spectroscopic examination, it was Dr. Hannon’s opinion that such an examination would not be helpful in diagnosis, since the spectroscope could not differentiate between silica, silicon dioxide and silicates but will only show the presence of the element silicon. His testimony was that the presence of the element silicon is not particularly helpful in diagnosis because it is only when silicon is in a free state, known as free silica, that it causes silicosis.

While it is the award of the commission that is reviewed, the referee’s award and findings are part of the record and should be given due consideration. Patane v. Stix, Baer and Fuller, Mo.App., 326 S.W.2d 402, 1. c. 411. After reciting his findings, the referee’s award reads as follows: “The medical testimony produced on behalf of the employee was to the effect that in the opinion of the various testifying physicians the employee is now suffering from an occupational disease, namely silicosis, and that he is 100 per cent disabled and in their opinion will so remain for the remainder of his life. This testimony was based upon physical examinations and laboratory studies. There is in the record no scintilla of evidence as to a physical examination of the employee in behalf of the employer. There is evidence in the record as to laboratory studies of a portion of a biopsy but, according to the record, no physical examination was made in behalf of the employer. It becomes, therefore, very evident that the preponderance of medical evidence is in behalf of the employee, and from that evidence only one conclusion can be drawn, namely, that William Clem Riggs, Jr. is permanently and totally disabled as the result of an occupational disease arising out of and in the course of his employment with A. P. Green Fire Brick Company.”

The commission’s order, in its parts pertinent to our inquiry, reads as follows: “ * * * Claimant alleges that he contracted silicosis. The burden of proving all of the elements of said occupational disease are his. Additionally, he assumes the risk of non-persuasion. Nor may we, in the guise of liberality, supply material elements of his proof by guess, conjecture or speculation. The usual and ordinary way of proving the existence of this disease is by radiography. The X-rays in this case are negative for silicotic nodulation. Claimant attempts to surmount this obstacle by explaining that his disease has not advanced sufficiently to produce the characteristic nodulation. We find this incredulous in view of the fact that his disease is pathologically advanced to the point that the employee is permanently and totally disabled. Claimant also attempts to demonstrate clinical silicosis by pathological and spectrographic examination of a lung tissue biopsy. His pathologist testified that he observed no silicotic nodules and based his diagnosis of silicosis on the claimant’s history. The spectrographic analysis of the lung tissue ash is not, we think, more helpful. Claimant’s lung tissue contained two to ten times more of the element silicon than that of the control specimen. It also contained ten to a hundred times more tin and two or three times more iron. We point out that it is not the element silicon which produces silicosis but rather its compounds, most commonly silicon dioxide. While the spectrograph identifies the element, it does not identify the various silicates (Claimant’s Exhibit F, p. 19). Claimant’s unfortunate condition evinces sympathy but the record considered, we are of the opinion that he has wholly failed to prove that he has silicosis.”

We are here confronted with a situation where medical experts disagree. The employee would have us hold the opinions stated by the company’s experts to be without the necessary facts to support them. The company contends the opinions given by the employee’s experts lack the same foundation. We should not enter such a dispute. Medical doctors do disagree. “ * * * [Wjhere the right to compensation depends upon the acceptance of one of two conflicting medical theories, the question to be determined is one of fact to be weighed by the commission, and we are not to disturb the finding unless the commission acted unreasonably in accepting testimony which was not substantial or in deciding the case against the overwhelming weight of the evidence.” Greer v. Missouri State Highway Department, Mo.App., 362 S.W.2d 773 [4]. The opinions voiced by the company’s medical experts accompanied by the recitation of reasons which they considered adequate to support those opinions constitute substantial evidence. Greer v. Missouri State Highway Department, supra, at 1. c. [7], [8], 362 S.W.2d p. 779 and cases there cited. The weight to be given to the substantial evidence offered by the company’s experts as well as that to be given to the substantial evidence offered by the employee’s experts is for the triers of the facts, in this case the commission.

It is obvious from his findings that the referee agreed with the employee’s contention that the opinions stated by the company’s experts should be cast aside because they were formulated without the aid of clinical examination. We are not authorized to do so. The evidence was that while clinical examination would be helpful, it was possible to come to a conclusive diagnosis as to the existence of the disease in the absence of such an examination. Dr. Schepers’ testimony to this effect was unchallenged and stands uncontradicted. Where the opinion of a medical expert is based upon those means of knowledge which are regarded by that profession as sufficient, we cannot say the opinion is without basis. Schaefer v. Rechter, Mo., 290 S.W.2d 118, 1. c. 124; Greer v. Missouri State Highway Department, supra.

It follows that the result reached by the commission was one supported by competent and substantial evidence. Accordingly, the judgment of the circuit court affirming the action of the commission denying the employee compensation is affirmed. The Commissioner so recommends.

RUDDY, P. J., not participating.

PER CURIAM:

The foregoing opinion of BRADY, C, is adopted as the opinion of this court. The judgment of the circuit court affirming the action of the commission denying the employee compensation is affirmed.

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


text:
    The EMERSON ELECTRIC MANUFACTURING COMPANY, a Corporation, Plaintiff-Respondent, North Hills Homesites et al., Plaintiffs-Appellants, v. CITY OF FERGUSON, a Municipal Corporation, Defendant-Appellant, and The Town of Normandy, a Municipal Corporation, Intervenor-Appellant.
    No. 31374.
    St. Louis Court of Appeals. Missouri.
    March 17, 1964.
    Motion for Eehearing or to Transfer to Supreme Court Denied April 13, 1964.

      Bryan, Cave, McPheeters & McRoberts, Robert H. McRoberts, Thomas V. Connelly, St. Louis, for plaintiff-respondent.
    Kerth, Thies & Schreiber, Alfred H. Kerth, Clayton, William J. Costello, John C. Hannegan, St. Louis, for plaintiffs-appellants.
    Carleno & Nick, A1 Nick, Ferguson, Wehrle & Wehrle, Walter W. Wehrle and Thomas W. Wehrle, Clayton, for defendant-appellant.
    Bardgett, Gallagher & Hackmeyer, John E. Bardgett, Clayton, for intervenor appellant.
   BRADY, Commissioner.

These two actions have their basis in attempts by the City of Ferguson, hereinafter called Ferguson, and the Town of Normandy, hereinafter referred to as Normandy, to annex certain land in St. Louis County. Annexation was opposed by the Emerson Electric Manufacturing Company, hereinafter called Emerson, and by North Hills Homesites, hereinafter called North Hills. Normandy, Ferguson and North Hills have appealed from the decisions of the trial court. We have determined that these appeals must be ruled by the merits of Normandy’s claim to priority and will therefore limit our factual résumé of over 200 exhibits and a transcript exceeding 1,500 pages to that issue.

On December 20, 1955 the City Plan Commission of Ferguson adopted a resolution recommending to the city council the annexation of the area encompassed by the Emerson and North Hills properties. The commission suggested to the council that it consider these two areas separately and recommended that the area including Emerson’s property be given preference to facilitate industrial development of other properties which the commission intended to zone for industrial purposes. On December 27, 1955 the City Council of Ferguson adopted two separate resolutions which were identical except as to the description of the land involved. These resolutions provided “THAT the Director of Law of the City of Ferguson, Missouri be and is hereby authorized and directed to take such steps as may be necessary under and by virtue of the provisions of Section 71.015, Revised Statutes of Missouri, 1949, (as amended) to institute and file an action in the Circuit Court of St. Louis County, Missouri, in which such unincorporated area is situated, under the provisions of Chapter 527, Revised Statutes of Missouri, 1949, praying for a declaratory judgment to allow the City of Ferguson to annex the property described as follows, to-wit: * * On February 3, 1956 Ferguson filed a Sawyer Act proceeding in the Circuit Court of St. Louis County seeking a declaration of its authority to proceed with its proposed annexation of the Emerson property.

On April 12, 1956 Normandy filed its petition for annexation of the Emerson property with the St. Louis County Council. Normandy’s exhibits show that various departments of the county government filed their reports with the council as they were required to do.

On May 2, 1956 Ferguson sent a letter to the St. Louis County Council informing them of the pendency of their Sawyer Act case seeking annexation of the Emerson property and pointing out this property was also included in Normandy’s action. That letter requested the council to refrain from taking any action toward the approval of Normandy’s petition until the merits of Ferguson’s Sawyer Act case were finally determined. The records of the council show that it discussed this request and postponed action on Normandy’s petition.

On January 29, 1957 a bill which later became Ordinance No. 116 was introduced in the City Council of Ferguson whereby that city’s charter was amended so as to include the Emerson property within its boundaries. This amendment was submitted to the voters of Ferguson and approved on April 2, 1957. On August 21, 1957 Emerson filed suit in the Circuit Court of St. Louis County, being Cause No. 219662, attacking the validity of that ordinance for the principal reasons that it was (1) unreasonable, and (2) because the efforts of Ferguson to annex were barred by a prior pending'annexation petition filed by Normandy.

On October 16, 1957 Ferguson again wrote to the county council stating: “The Ferguson City Council respectfully requests that the County Council refrain from taking any action on the petition of the Town of Normandy to annex the tract described in their petition and that this letter be made a part of that file.”

On January 14, 1958 the City Council of Ferguson adopted Ordinance No. 214 which amended the city’s charter so as to include land lying adjacent to Emerson known as North Hills. This was approved by the voters on April 1, 1958. On May 1, 1958 certain residents of North Hills filed an action in the Circuit Court of St. Louis County attacking the validity of that ordinance. The file number of this action is No. 223197. The basic attacks were that the attempted annexation by Ferguson was (1) unreasonable, and (2) barred by the pending annexation proceedings of Normandy.

Normandy was granted leave to intervene both in North Hills’ and in Emerson’s attack upon Ferguson’s Ordinances No. 116 and No. 214. Normandy’s petition is the same as that found in the petitions filed by Emerson and North Hills. In both petitions the court was requested to declare Ferguson’s ordinances “ * * * illegal and void * * to enjoin Ferguson from exercising any municipal authority over the area to be annexed and for other relief as may be proper. There being common questions of law and fact, the parties agreed the cases should be consolidated for trial.

The trial court made a separate findings of fact and entered a separate decree in each case. In Cause No. 219662 the court found the annexation to be * * * unreasonable, unjust, oppressive and, on account thereof, is void.” It also found Normandy had no priority of jurisdiction. Accordingly, the court’s decree invalidated Ferguson’s Ordinance No. 116. Both Ferguson and Normandy appeal from that judgment. In Cause No. 223197 the court found the annexation reasonable and also found Normandy had no priority of jurisdiction. Accordingly, the decree refused to invalidate Ferguson’s Ordinance No. 214. North Hills and Normandy appeal from that judgment.

The doctrine of pre-emption or prior jurisdiction in annexation proceedings has long been recognized in Missouri. State ex Inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762; Mayor, Councilmen and Citizens of City of Liberty v. Dealers Transport Co., Mo., 343 S.W.2d 40. In the latter case the rationale of the doctrine was stated to be the sound recognition that there cannot be two municipal corporations with coextensive powers of government extending over the same area. Under this doctrine where two public bodies each claim jurisdiction over the same territory by virtue of annexation proceedings, the public body which takes the first valid step to accomplish annexation has the superior claim regardless of which one completes its proceedings first. State ex rel. Industrial Properties, Inc. v. Weinstein, Mo.App., 306 S.W.2d 634. To the same effect is the holding in Mayor, Councilmen and Citizens of City of Liberty v. Dealers Transport Co., supra, that the question of priority should be determined prior to the time both cities complete annexation. The same principle has been followed in the case of school district consolidations in Missouri. See State ex rel. Dalton ex rel. Stonum v. Reorganized Dist. No. 11, Clinton County, Mo., 307 S.W.2d 501; Walker Reorganized School Dist. R-4 v. Flint, Mo.App., 303 S.W.2d 200; State ex rel. Cainsville Reorganized School Dist. No. 1 of Harrison County v. Tomes, Mo.App., 299 S.W.2d 892; Mullins v. Eveland, Mo.App, 234 S.W.2d 639; State ex rel. Corder School Dist. No. R-3 v. Oetting, Mo.App., 245 S.W.2d 157. Of particular importance is the case of State at Inf. of Taylor ex rel. Oster v. Hill, Mo., 262 S.W.2d 581, where it was held that mere consideration by the directors of a district of the intention to enlarge the district was immaterial and did not confer any priority. In the case of Willard Reorganized School Dist. No. 2 of Greene County v. Springfield Reorganized School Dist. No. 12 of Greene County, 241 Mo.App. 934, 248 S.W.2d 435, the same language as found in the Weinstein case, supra, was used; i. e., the court referred to the district which took the first valid step. It follows that we are to look to the facts to determine which municipal body took the first valid step toward incorporation.

In so doing it is necessary to carefully delineate the differences between Ferguson and Normandy. Ferguson is a charter city, and while the Sawyer Act by express terms does apply to cities, it does not apply to a charter city. McConnell v. City of Kansas City, Mo., 282 S.W.2d 518. In State ex Inf. Taylor ex rel. Kansas City v. North Kansas City, supra, the Supreme Court held that the right of a charter city to amend its charter and hence extend its boundaries by that amendment as provided for in the Constitution of Missouri is self-enforcing and that the exercise of that right can be accomplished without any legislation. It also follows that any act of the legislature such as the Sawyer Act, attempting to restrict the exercise of the right of a charter city to amend its charter, would be invalid. The inescapable conclusion is that the Sawyer Act does not apply to Ferguson. Since the Sawyer Act does not apply to Ferguson, its action on February 3, 1956 by filing a Sawyer Act proceeding could not be the first valid step in seeking the annexation of this territory. The first valid step which was taken by Ferguson was the introduction and passage of Ordinance No. 116 in January of 1957. This action was a step toward annexation in accordance with the provisions of Ferguson’s charter relating to that subj ect.

We pass now to a consideration of Normandy’s status. It- is agreed in the record that Normandy is a “town” organized under the provisions of Chapter 80 of our statutes. § 80.030, RSMo 1959 expressly provides that a town or village may, under certain circumstances, begin annexation proceedings by filing a proper petition with the circuit court. State ex rel. Hart v. Whitaker, Mo.App., 218 S.W.2d 121; Prairie Pipe Line Co. v. Moscow Mills, Mo.App., 300 S.W. 298. It should also be noted that the Sawyer Act uses the word “city.” The various sections of Chaptei 71 of our statutes make very precise distinctions between “city,” “city, incorporated town or incorporated village,” “unincorporated town or village,” and “city, town or village.” Some sections of our statutes apply to cities only and some apply to all classes of municipalities. We further note that the legislature has classified cities into four statutory classes with the result that the word “city” has a very definite meaning. This being so we cannot consider the legislature to have intended the term “city” as used in the Sawyer Act to mean “city, town or village.” It follows that the provisions of the Sawyer Act are not applicable to towns. It may be considered illogical to require a city to obtain a declaratory judgment before completing an annexation and not to make the same requirement of a village or town, but that is a matter for the legislature and not for this court.

We are, therefore, faced with a situation where neither Normandy nor Ferguson is governed by the Sawyer Act. The consequences of this determination have already been stated as to Ferguson. The consequence as to Normandy is that since it did not need to proceed to secure a declaratory judgment as provided by the Sawyer Act, Normandy took the first valid step toward annexation of this area when it filed with the St. Louis County Council on April 12, 1956 its petition to annex substantially the same area later sought by Ferguson. This was the proper method for a town such as Normandy to begin annexation proceedings.

Ferguson refers the resolution of its city plan commission in December of 1955 and the resolution of its city council in the same month of that year as illustrative of its prior jurisdiction. We think the answer to this contention lies in what was said in State at Inf. of Taylor ex rel. Oster v. Hill, supra, where the intention of the directors of a school district was held as not sufficient to establish priority. In this respect we think the intention of the municipal body is not determinative. The pertinent date is the date of the first valid step in the annexation process. Since these resolutions called for or resulted in the filing of an improper Sawyer Act petition, they cannot be considered as constituting the first valid step. Ferguson also argues that Normandy has been- guilty of unreasonable delay in not pressing its proceedings before the county council. To support this contention Ferguson argues that the letters which it wrote to the county council requesting that it not take any further action are not properly a part of this record. We cannot agree. These letters appear in the original file which was introduced as an exhibit without objection by Ferguson. Even if there had been an objection, it would seem that these matters were material and pertinent to a proper disposition of this case. The only fair inference to be drawn from the letters is that Normandy’s proceedings before the county council were postponed and delayed because of Ferguson’s request. It also appears from this record that Ferguson failed to notify the county council that it had abandoned the Sawyer Act case which it referred to in these letters. Ferguson is in no position to complain of Normandy’s delay which was in fact the result of Ferguson’s actions. Normandy’s action must be taken within a time reasonable in view of the circumstances. Mayor, Councilmen and Citizens of City of Liberty v. Dealers Transport Co., supra. It is obvious that the acts of Ferguson in sending these letters are a part of the circumstances to be considered in determining whether Normandy has been guilty of unreasonable delay.

Ferguson also relies upon the fact that in the City of Liberty case the Supreme Court refused to hold that Kansas City had lost jurisdiction due to its failure to submit the matter of annexation to an election within sixty days as provided by its charter. We cannot agree that this lends any support to Ferguson’s position. The fact remains in that case Kansas City had validly started the proceedings and in this case Ferguson did not.

We hold that Normandy took the first valid step toward annexation by filing its petition with the St. Louis County Council on April 12, 1956. Accordingly, we rule that the trial court’s judgment in both of these cases was erroneous for the reason that in each of them it was held that Normandy had no priority of jurisdiction.

The remaining question is the extent of the relief to be granted to Emerson, North Hills and Normandy as the prevailing parties. The specific relief sought was that Ferguson’s Ordinances No. 116 and No. 214 be held void and that Ferguson be enjoined from the exercise of any authority such as the collection of taxes, etc. over the land area here involved. The question is whether we should hold Ferguson’s ordinances void or whether they should be left unaffected so that in the event Normandy fails to secure favorable action by the St. Louis County Council or fails to press for such action or, succeeding before the county council, loses a court test on the issue of reasonableness, Ferguson may then proceed with its attempt at annexation.

In most of the reported cases involving the issue of “priority of jurisdiction” it was unnecessary to rule this question for the reason that the municipality determined to have priority of jurisdiction also presented the question of the reasonableness of its annexation in the same action, and thus the matter could be completely disposed of. An example of this situation is found in State ex Inf. Taylor ex rel. Kansas City v. North Kansas City, supra. Such a solution is not possible in the instant case for a twofold reason: first, because § 80.030, supra, calls for a determination by the “county court” (in this case the St. Louis County Council) as to the merits of Normandy’s petition in whole or in part. That decision has not been made, and our ruling upon the issue of reasonableness would be premature. Secondly, there is no evidence before us as to the reasonableness of Normandy’s annexation. The pleadings and evidence before us go entirely to the question of the reasonableness of Ferguson’s annexation. It is obvious that even if we were to hold Ferguson’s annexation unreasonable, it would not necessarily follow that Normandy’s annexation would be reasonable. That is a different matter requiring separate pleadings and evidence.

In the instant case Normandy needs the approval of the St. Louis County Council before it can complete annexation. The argument that Normandy can unreasonably delay its attempts to secure that approval is without merit. It was held in Mayor, Councilmen and Citizens of City of Liberty v. Dealers Transport Co., supra, that once an annexation proceeding is instituted it must be completed within a reasonable time or the right of priority may be lost. On the other hand Normandy may fail to secure the approval of the St. Louis County Council or, securing that approval, an action to declare the annexation unreasonable may be successfully maintained. Prairie Pipe Line Co. v. Moscow Mills, supra. The argument is that so long as either of these two circumstances may in fact occur, it is inequitable to hold these ordinances void, for to do so would be to require Ferguson to begin its entire proceeding over again with the ensuing duplication of charter amendments and elections. In addition, should another municipality validly begin its annexation proceedings after Normandy’s failure but before Ferguson could validly begin their proceedings, Ferguson would be deprived of an opportunity to annex this property, even though it had a long history of attempting to do so. Since we have not herein reached the issue of the reasonableness of Ferguson’s annexation and since Normandy’s annexation attempt may fail, the contention is that the equities of the situation require that we order these actions held in abeyance pending a final determination of Normandy’s proceedings. In this manner, the argument runs, we not only do equity with respect to Ferguson but also do so as to all the parties, as we avoid the necessity for another lengthy hearing on the very subject exhaustively covered in these five volumes of transcript.

This court cannot agree with this argument. It is based upon a “chamber of horrors” argument that is speculative at best. A similar argument, again based upon speculation, could be advanced in support of the opposite ruling. Black’s Law Dictionary, Second Edition, defines “void” as “ * * * ineffectual * * * having no legal force or binding effect; unable, in law, to support the purpose for which it was intended.” It is in this sense that Ferguson’s ordinances are void. We think the case of State ex Inf. Goodman ex rel. Crewdson v. Smith, 331 Mo. 211, 53 S.W.2d 271, compels that decision. In that case there was introduced in the Council of the City of Louisiana on May 3 an ordinance extending the limits of that city to include a certain contiguous area. On May 13 the inhabitants of the area Louisiana sought to annex presented a proper petition to the county court, and that body entered its order incorporating the area as the “Village of Elmwood.” On May 14 the City Council of Louisiana passed the ordinance of annexation. The Supreme Court of this state held that Louisiana had priority of jurisdiction and “ * * * The order of the county court incorporating the territory as a village was void.” (State ex Inf. Goodman ex rel. Crewdson v. Smith, supra, 53 S.W.2d l. c. 273.)

It follows that these judgments should be reversed and the cause remanded to the trial court with directions that it enter its decree in favor of Emerson in Cause No. 219662, in favor of North Hills in Cause No. 223197, and in favor of Normandy in both causes on the ground that Normandy has priority of jurisdiction. The trial court should also be directed to enter its order permanently enjoining Ferguson from exercising any authority over this area where such authority is based on the annexation of this area by Ordinances No. 116 and No. 214. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgments are reversed, and the cause is remanded to the trial court with directions that it enter its orders in accordance with the opinion expressed herein.

RUDDY, P. J., WOLFE, J., and FRANK W. HAYES, Special Judge, concur.