author: TOWNSEND, Commissioner.

text:
    Herman A. STARCKE, Employee-Respondent, v. KREY PACKING COMPANY, Employer, Self-Insured, Appellant.
    No. 32847.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 21, 1968.
    Application to Transfer Denied May 13, 1968.

      R. C. Reis, St. Louis, for appellant.
    Max M. Librach and Gene R. Spengel, Jr., St, Louis, John B. Busch, Clayton, for respondent.
   TOWNSEND, Commissioner.

This Workmen’s Compensation proceeding was initiated by Herman A. Starcke’s filing of claim for compensation with the Division of Workmen’s Compensation on January 10, 1964. In his claim he alleged injuries to his left hip, left leg, left ankle and back resulting from an accident suffered on January 24, 1963. Hearing before the Referee was had on October 25, 26, 27 and November 1, 1965. At the hearing it was stipulated, inter alia, that no compensation had been paid for temporary total disability, that no time was lost and none claimed, that medical aid had been furnished by the employer in the amount of $35.00 and no claim was being made by the employee for additional medical. The Referee awarded claimant for permanent partial disability the sum of $42.50 per week for eighty weeks. Upon the employer’s Application for Review the Industrial Commission affirmed the award of the Referee. In turn, upon appeal, the Circuit Court of St. Louis affirmed the action of the Industrial Commission.

At the hearing before the Referee the claimant testified in substance as follows: At about 11 p. m., January 24, 1963, while engaged in his duties as a stationary engineer for the employer he slipped on the ice in an alley on the employer’s premises and fell with heavy impact on his left hip and upper thigh. He arose unassisted and worked the balance of his shift. He was bothered only by the soreness of his hip at that time. He states that the next day his leg had turned black from the ankle to the hip; he reported to the nurse at the company dispensary and was given some pills. He was having no trouble with any part of his body other than his leg at this time. He continued to do his regular type of work, although his leg was sore and he was limping a little. His back started “bothering” him the second or third day after the fall. About two days after the fall claimant called Doctor Donley, a company physician, and went to his office on Grand Avenue. Doctor Donley gave him a prescription for some pills “to dissolve that blackness in the leg”. The doctor took no x-rays at this time. When asked when he first started having pains in his back, claimant answered “I would say seven or eight days after that.” Eight or ten days after the initial visit to Doctor Donley he saw the doctor again (apparently at the dispensary) and was given a hypodermic shot by the nurse at the doctor’s direction. He was in the dispensary eight or ten times thereafter, receiving some kind of light and heat treatment on his hip, over a period of eight or nine months. Claimant was hospitalized for pneumonia in March 1963, but otherwise he lost no time from work between the day of his accident in January and the termination of his employment in October 1963. At the time of this pneumonia incident claimant made no complaint to his physician of any back trouble, nor did he do so when the same physician treated him for a virus in January 1964. He saw Doctor Donley a third time about a year after the fall and at that time he was sent to Christian Hospital for x-rays.

About eight years before the time of the hearing claimant started seeing Doctor Yochum, a chiropractor, because he then had “sciatica rheumatism”, a matter that cleared up in about twelve days after he first visited Doctor Yochum. Thereafter he visited the chiropractor sporadically when he “didn’t feel too good” or had body aches. There might have been intervals of six to eight months between some visits. Claimant received a traction treatment each time he visited Doctor Yochum, but upon no such visit prior to the accident in question here was he complaining of back pains. The last time the witness saw Doctor Yochum prior to the accident was one and a half to two months before. At that time he “gave me manipulation for the back and gave me traction”, although he was having no difficulty with his back at that time. About six months after the accident he went to Doctor Yochum because his back was bothering him and between that time and February 1964 he visited him from twelve to fourteen times.

Throughout his examination claimant testified to the continuing and persistent soreness in his hip and back up to the time of the hearing.

The attendant nurse at the dispensary testified that the claimant did not appear at the dispensary until January 28, 1963. Thereafter he was at the dispensary nine times by May 21, 1963, but did not appear there between May 21 and October 25, 1963. During the whole of this period claimant never complained of his back hurting him. On October 30, 1963, Doctor Donley, company physician, sent the claimant to Christian Hospital for x-rays; the order for x-rays related only to the area of the thigh and no x-ray was taken of the back. The report from the radiologist at Christian Hospital was negative; however it did disclose an arthritic condition. On the last previous occasion of claimant’s visit to the dispensary, namely, on October 25, 1963, when the claimant was seen by Doctor Donley he stated that he still had pain in the left upper lateral thigh six to eight inches below hip trochanter.

Doctor Donley testified that he first saw claimant about January 28, 1963. Upon examination he found that there was a bruise over the left hip area with hematoma formation. Thereafter he saw claimant “pretty often * * *. He would come into the dispensary when I was there.” At no time did claimant complain of any pain in his back; his references were always to the hip. On September 18, 1964, approximately eleven months after claimant’s employment with the packing company had terminated, he was sent to Doctor Donley for a rating. At that time claimant stated that his hip condition had improved, but he also had other complaints, such as pain along the side of the thigh and into the left lower leg. He also complained of some pain in the low back region. This was the only occasion upon which claimant had complained of any pain other than the pain in the hip region.

It is clear that if the Commission’s award of permanent partial disability were based upon the injury to the claimant’s hip alone, there was not sufficient evidence to justify the award. Claimant’s medical witnesses, after examination and x-rays, testified (1) that the x-ray of claimant’s hip showed no pathology there and (2) that there was no restricted motion of either hip, that there was some palpable tenderness over the left greater trochanter and that witness made no objective findings with regard to the left thigh; there was no pathology associated with the hips. Accordingly, the Commission’s award must have been founded upon the alleged back injuries alone or upon the combination of back and hip injuries.

Apart from claimant’s own testimony the only evidence of injury to his back came from his two medical witnesses. The substance of their testimony follows.

Dr. Harry I. Berland, radiologist at St. Louis State Hospital, testified that on January 15, 1965, he x-rayed the lumbosacral spine and the left hip of claimant. The x-rays showed spur formations on the margins of the lumbar and lower dorsal vertebrae and a narrowing of the right side of the first lumbar vertebra and of the second lumbar vertebra. He found a narrowing of the intervertebral space between the fourth and fifth lumbar vertebrae. The x-ray of claimant’s left hip gave no evidence of any pathology there. He stated as a conclusion that the x-rays showed a healed fracture or compression fracture in the first lumbar vertebra and he was suspicious of a mild compression deformity in the body of the second lumbar vertebra. The spurring of the margins was evidence of hypertrophic osteoarthritis and the narrowing of the fourth lumbar intervertebral space was due to atrophy of the disc or the space. Doctor Berland explained that when “you have a compression fracture of a vertebra you have some impaction, one part of the vertebra into another. * * * this can occur in any bone * * *. When this occurs you get a decrease in the diameter — I’d better say decrease in the height of the body of the vertebra.” Q. “Doctor, when you have a compression fracture of a vertebra, does this have any effect on the surrounding disc and soft tissue, the surrounding soft tissue area around the spine?” A. “Yes.” Q. “And might a compression fracture of a vertebra, as a result of the effect that it has on the surrounding soft tissue, produce pain?” A. “Yes.” Q. “Could this pain be for a continuing period of time, that is, to the point you might say it is a permanent type of pain or permanent type of condition ?” A. “Well, if the fracture — in the beginning the fracture will produce pain because you have a hemorrhage there and you have distension of both soft tissues or contusion within the soft tissue around the vertebra, and you also have some hemorrhage into the bone structure itself. This will produce pressure on the nerve endings and will produce pain. When this heals the pain should go away.” * * * Q. “Getting back to that arthritis, could that be painful?” A. “Yes, that could be.” Q. “Could that be a source of constant discomfort?” A. “Yes.” Q. “Without there being anything to aggravate it?” A. “When you have this form of lipping and spurring on the margins of the vertebra, you can have involvement in the joints, that is, in the apophyseal joints of the lumbar spine, this can produce pain. Again it can vary from just discomfort to very severe pain.” * * * Q. “That compression fracture, would that be — A. “These are healed. My guess would be that the fractures per se after they healed would not be painful.” Q. “How old did you say those fractures are. Can you tell us?” A. “This would be very difficult for me to say. They are healed. The only thing I could say is that healing may take six months, eight months for it to heal, something like that. How long before that it existed I don’t know.” Q. “When they are compressed would they be painful?” A. “You mean at the time?” Q. “Yes.” A. “At the time of the compression. Yes they should be.” Q. “Would there be almost immediate — ” A. “Well, it again depends — I would say he would begin to feel it in a matter of 24 hours, * * Q. “There is no way to determine by looking at that picture whether it is a year old, five years old — ” A. “No, this would be very difficult to evaluate.” * * * Q. “Then if he doesn’t report any back pain for seven or eight days, it would be sort of a long shot then he had a fracture in that particular instance?” A. “Well, again, if he were ambulatory; I mean, we are hypothesizing here, but if he were ambulatory and he were up and about and didn’t have pain for about a week and then began having pain and you x-rayed this, my feeling would be this is not necessarily a compression fracture but that it probably was aggravated, the pre-existing condition was aggravated and as a result he was complaining of pain of this pre-existing condition.” * * * Q. “In any event, just looking at the films, you can’t put a date on when this thing happened ?” A. “No. No. The only thing I can say here is that there is a healed fracture in L-l an I am suspicious of a healed fracture in L-2, and beyond that I would say it would be difficult to say whether this was a year, two years or five years.” * * * Q. “How would you characterize the arthritic spur that you saw there in the way of mild or great or — ” A. “I would say it was moderately severe.” Q. “Moderately severe.” A. “Because he has quite a bit of spurring there.” Q. “Is that compatible with the age of 71 years?” A. “Oh, yes.” Q. “Would you expect a person 71 years, with that amount of spurring, to have some discomfort?” A. “Yes.” Q. “Without there being any outside source?” A. “That is right.”

Dr. William A. Stephens, orthopedist, witness for the claimant, took a history of complaints from claimant and proceeded to examine him on February 16, 1965. Claimant complained of aching pain in the lower part of the back above the waist line, “the pain being constant but aggravated by bending, stooping and heavy lifting.” The physical examination revealed mild, diffuse palpable tenderness from the level of the lower dorsal region and including the lumbar segments with maximum tenderness over the fifth lumbar interspace, and some palpable tenderness over the left greater trochanter of the femur. X-rays were taken by Doctor Stephens, who interpreted them as follows: In the lower dorsal and upper lumbar region there is a curvature with convexity to the left side. The anterior diameter of Dll is decreased as compared to DIO and D12. Anterior wedging of Dll; DIO and D12 are quadrangular shaped in comparison. Some lateral wedging of both LI and L2 on the concave side of the curve. Osteoarthritis of moderate degree. Extreme degree of lipping, in some instances almost bridging the interver-tebral disc spaces of the lower dorsal including most of the lumbar segments. The intervertebral disc space between L4 and L5 is decreased. Has some degenerative changes associated with the mid-dorsal vertebral bodies. Wedging deformity of the superior aspect of LI. “We note rather marked degenerative changes associated with the remainder of the lumbar vertebral bodies. * * * We have three, four, five lumbar vertebrae — shows rather marked degenerative changes associated with the anterior borders of the remainder of the lumbar vertebral bodies.” No pathology associated with the hips; joint surfaces are smooth and spaces normal in width.

Doctor Stephens’ diagnosis was: “Old healed compression fractures of Dll and LI with an associated mild scoliosis. (2) Osteoarthritis of moderate severity of the lower dorsal and lumbar segments with marked narrowing of the intervertebral disc space between L4 and L5. And residuals of trochanteric bursitis of the left thigh manifested by tenderness. * * * He may be having some nerve root irritation on the left side as the history suggests ; however, at the present this is not a prominent symptom. He has had arthritis of the spine for many years, and this, undoubtedly, has been present prior to the accident — date of the accident.” He was of opinion that claimant had a permanent partial disability of the man as a whole of about 40% in regard to the present condition of the lower back.

Questioned in direct examination about the “old healed compression fractures”, Doctor Stephens testified:

“Q. When you say ‘old’, doctor, are you able to precisely pin point from the x-rays how old they are?
A. No.
Q. They might be six months old; they might be a year and a half old, is that correct, or could be ten years old?
A. Yes.
Q. There is no way of precisely pin pointing the period of time, is that correct?
A. That is correct.”

He stated further that “The fractures of Dll and LI may have occurred as a result of the trauma he sustained in this accident. Generally, his present symptoms are the result of fractures of the spine plus the presence of degenerative arthritis which is, undoubtedly, aggravated by the fall which he sustained.” He was then asked, “Now, does a history of a traumatic incident aid you in your diagnosis as to pin pointing the time [of the fractures] ?” A. “Of the back?” Q. “History of injury to the back, yes.” A. Yes, it would help out.”

Counsel then propounded the hypothetical question which included the assumption “that somewhere between two days and eight days he experienced now pain in his low back.” The witness responded: “I am of the opinion that the fractures of Dll and LI, within a reasonable degree of medical certainty, were caused by this fall, and that he has had an aggravation of this pre-existing arthritic condition of his back as the result of the trauma.” Then upon the basis of the same hypothetical question he stated it as his opinion that claimant “has got some disability of the back that was caused by this accident of approximately 30% of the man as a whole.”

If we could stop at this point it might well be said that there was sufficient competent evidence for a finding that the compression fractures were caused by the accident here and that the pain existent in claimant’s back was caused in part by those fractures. However we believe that the cogency — perhaps even the relevance — of the opinion evidence of Doctor Stephens as to the fracture causation has suffered a process of regression by reason of his subsequent testimony. . That subsequent testimony is here detailed.

“Q. At the time these fractures occurred, would the patient suffer some discomfort from that?
A. Yes, he should have had considerable amount of pain in his back at the time.
Q. When would it occur in relation to the time it occurred?
A. The onset of pain ?
Q. Yes.
A. Should have been almost immediately.”

[We digress here only long enough to repeat claimant’s own testimony that at the time of the fall he was bothered only by the soreness of his hip, that the next day he was having no trouble with any part of his body other than his hip, that his back started “bothering” him two or three days after the fall and that when asked directly when he first started having pain in his back he answered that it was seven or eight days after his visit to Doctor Don-ley’s office].

Proceeding with Doctor Stephens’ subsequent testimony:

“Q. Now, assuming, doctor, that this man didn’t have any pain in his back for seven or eight days after this particular accident, would that lead you to believe that he didn’t suffer these fractures or compression fractures of the vertebrae at that time?
A. Well, it would be doubtful, if the back was absolutely symptom free for eight days following trauma, the occurrence of fractures at the time of the accident would be doubtful, yes.
Q. You would normally expect he would have pain, react to pain say within hours or, at least, one day, is that right ?
A. Yes.”
******
“Q. Now, doctor, if we will make another assumption, if this man had complaints of his right or his left leg and hip immediately following this and these continued on and he received treatment at the dispensary until from January, would be until May of that year, and then didn’t return again until October, and at that time for the first time mentioned any complaints in his back, would you have an opinion, doctor, as to whether or not he suffered any injury to his back as a result of this fall?”
“A. No.”
“Q. You would say he would not have any disability to his back as a result of this fall, is that right?
“A. Not after that interval.”

The hypotheses of the latter questions put to the witness were well justified by un-contradicted testimony found in the record. The effect then of Doctor Stephens’ later testimony is to completely neutralize his previous opinion that the fall furnished the causation for any back disability from which claimant may suffer.

We are left then only with the testimony of claimant himself as to the continuing intermittent soreness and discomfort in his back. In view of claimant’s own evidence (i. e., of his medical witness) that the long existent arthritic condition of his spine could produce pain without the presence of any external factor, it would be mere speculation to conclude that any pain which he may currently experience was caused by the fall in question.

Applying the Constitutional test of “competent and substantial evidence upon the whole record” (Art. V, Sec. 22, V.A.M.S.), we find that the award of the Commission was not supported by such competent and substantial evidence. In the words of the Compensation Act “there was not sufficient competent evidence in the record to warrant the making of the award” (§ 287.490, RSMo 1959, V.A.M.S.).

The judgment of the Circuit Court should be reversed and the cause remanded to that Court with directions to vacate the award of the Industrial Commission and to enter judgment for appellant-employer.

PER CURIAM.

The foregoing opinion by TOWNSEND, C, is adopted as the opinion of this Court. Accordingly, the judgment of the Circuit Court is reversed and the cause remanded to that Court with directions to vacate the award of the Industrial Commission and to enter judgment for appellant-employer.

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

       On this subject Doctor Berland had previously testified: “Q. When they are compressed would they be painful? A. You mean at the time? Q. Yes. A. At the time of the compression. Yes, they should be. Q. Would there he almost immediate— A. Well, it again depends — I would say he would begin to feel it in a matter of 24 hours * *
      The employer’s medical witnesses testified: Doctor Scheer, orthopedic surgeon— “In traumatic compressions one would expect to have virtually immediate pain.” Doctor Donley — “How soon would that pain show up? Should show up like any fracture, immediately.”


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    Charles GRIDER and Mary K. Grider, Plaintiffs-Appellants, v. TWIN CITY FIRE INSURANCE COMPANY, a corporation; Fireman’s Fund Insurance Company, a corporation; and Westchester Fire Insurance Company, a corporation, Defendants-Respondents.
    Nos. 32793, 32794.
    St. Louis Court of Appeals. Missouri.
    March 19, 1968.

      Granville L. Gamblin, Clayton, Earl L. Davis, St. Louis, Dorman L. Steelman, Salem, for plaintiffs-appellants.
    J. H. Cunningham, Jr., Wilson, Cuning-ham & McClellan, St. Louis, Levin & Upton, Chicago, Ill., for defendants-respondents.
   WOLFE, Judge.

This appeal concerns three separate suits that were brought against three different insurance companies. The actions all involved fire losses that arose out of the same fire. By agreement of parties the cases were consolidated for trial. Two of the suits were for the loss of a dwelling house. One of these two was against Twin City Fire Insurance Company and the other against Fireman’s Fund Insurance Company. The third suit was against Westchester Fire Insurance Company on a claim for fire damage to furniture and property within the dwelling. The trial was to a jury. There was a verdict and judgment against Twin City Fire Insurance Company for $3,500, a judgment for a like amount against Fireman’s Fund Insurance Company. Both of these defendants were insurers of the dwelling. There was also a verdict and judgment against Westchester, the insurer of the personal property, in the sum of $2,600.

The plaintiffs moved to set aside the judgments and verdict on the grounds that they were inadequate and requested the court to enter judgment for $7,112.59 against each of the insurers of the dwelling and a judgment of $5,000 against Westches-ter, or in the alternative to grant plaintiffs a new trial “as to the amount of recovery” only. Plaintiffs’ motion was overruled. Twin City Fire Insurance Company and Fireman’s Fund Insurance Company, the dwelling insurers, moved for a judgment in accordance with their motion for a directed verdict. The court sustained the motion of these two defendants and entered a judgment in their favor. The plaintiffs prosecute this appeal.

The insured property was located in Cen-terville, Illinois, a town adjoining East St. Louis. The policies were written in East St. Louis, Illinois. Plaintiffs Charles Grid-er and Mary K. Grider purchased the lot, upon which the insured dwelling was later built, as joint tenants, in 1954. On August 21, 1962, Charles Grider gave a quitclaim deed to his wife, Mary K. Grider. She accepted the deed and it was recorded in October, 1962. On September 15, 1962, twenty-five days after deeding the property to his wife, Grider applied for and there were issued to him as the only named insured, the two policies of insurance on the house: one by the Twin City Fire Insurance Company and the other by Fireman’s Fund Insurance Company. Each was for $7,500 and both were issued by the same agent. The same agent had issued in 1960 a policy for the Westchester Fire Insurance Company on the contents of the dwelling for a term of five years. This policy was also issued to Charles Grider as the only named insured.

Charles Grider left his home in Center-ville, Illinois, around the first of May, 1963. He had contracted to buy a place near Van Burén, Missouri. He was trying to sell the home in Illinois. He stayed in the place that he had contracted to buy in Missouri but his wife and son remained in Center-ville, Illinois. On May 31, 1963, Mary K. Grider had gone with her son to a drive-in picture show and upon returning home and near her house she saw that a house was burning. She stopped in a neighbor’s house and had some coffee. She testified that while she was there she heard that it was her house that was burning. The house had been set on fire by James Grider, a brother of her husband.

The day after the fire Mrs. Grider went to her sister’s home with her son as her sister had room in her basement to accommodate them. James Grider came to see her at her sister’s house the evening following the fire, and according to Mrs. Grider’s testimony he said that Charles Grider owed him $200 and he wanted her to give it to him. She testified that he said: “If you don’t pay me the money your husband owes me I will say you hired me to set the fire.” She gave him a check for $200.

Plaintiff Charles Grider returned to Illinois from his new home in Missouri as soon as he could after the fire and stayed for about an hour. He then went back to Missouri and did not return to Illinois again until some time in August when he got word that the fire marshal wanted to talk to him. He submitted to a lie detector test and was questioned about the fire. He was told that he was in the clear. Mary Grider who was never given a lie detector test said she was willing to take one. James Grider was later indicted by a grand jury charging that he committed the offense of arson “in that he, by means of fire, knowingly damaged a building of Charles H. Grider and Mary Katherine Grider, with intent to defraud the insurer of said building.” He pleaded guilty and was sentenced to prison for a term of six years.

As to the value of the personal property lost, Mrs. Grider testified at some length about various items burned. Some were book shelves made by her son, some were items purchased secondhand, and she attempted to put a value on some of them but concluded her testimony with the statement that she “imagined” the value of the items lost was “around between $7,000 and $8,-000.” The witness testified that her daughter had taken her clothing out of the house about two weeks before the fire. Grider testified that he had taken some of his clothing and tools to Missouri about a month before the fire. Grider attempted to get into evidence testimony that there was an oral agreement between himself and his wife that she would re-convey the property to him at any time he requested it. An objection was made to the offer of proof and the objection was sustained.

In August, Charles Grider filed a proof of loss with the agent for the three companies and checks for the payment of the loss were sent to the agent but the agent was later directed not to deliver the checks. The three suits here considered followed. The defendants paid into court the premiums paid under the policies and denied liability on the grounds of arson and on the further grounds that plaintiff Grider, the only named insured, had no insurable interest.

The parties here both recognize the general rule that the law of the state where the contract was made will be applied to determine its validity by the state where the action is brought. Here the contract was made in Illinois and the issue before us is one of substance and not of remedy. The law of Illinois therefore governs. Auffenberg Lincoln-Mercury, Inc. v. Wallace, Mo.App., 318 S.W.2d 528, 1.c. 532.

The appellants concede that Illinois follows the general rule that in the absence of an insurable interest a fire insurance contract is invalid and void but they rest their charge of error on the theory that Grider had an insurable interest despite the fact that he had divested himself of title prior to taking out the insurance. They predicate this on the fact that Grider made an offer of proof that an agreement existed between him and his wife that she would deed the property back to him. We are cited to Pollock v. Connecticut Fire Ins. Co. of Hartford, 362 Ill. 313, 199 N.E. 816. This case is in no way relevant to the facts before us as it deals solely with the construction of an insurance policy. We are also cited to Larmon v. Knight, 140 Ill. 232, 30 N.E. 318; Kester v. Crilly, 405 Ill. 425, 91 N.E.2d 419; Suchy v. Hajicek, 364 Ill. 502, 4 N.E.2d 836. These cases do not support the theory advanced because they deal with constructive trusts that arise when the grantee, in confidential relationship with the grantor, dominates the grantor and obtains a deed by reason of that dominant relationship. No such situation here prevails or is contended for.

The appellants assert no other insurable interest held by Grider in the insured property and it appears that no legal interest existed. Patterson v. Durand Farmers Mut. Fire Ins. Co., 303 Ill.App. 128, 24 N.E.2d 740. We conclude that the court properly set aside the verdict and entered a judgment for the two insurers of the dwelling.

It is also contended that the court erred in overruling appellants’ motion to set aside the verdict of the jury and the judgment entered upon it, against the Westches-ter Insurance Company in the sum of $2,600 and to enter a new judgment in their favor for $5,000. The appellants assert that the amount of the loss was not in issue as the Westchester had agreed to pay $5,000 under the policy prior to the time it decided to contest the suit here brought against it. As stated the plaintiffs sought by their own testimony to prove the value of the loss they sued upon. No instruction offered by them mentioned any amount or gave the jury any guide by which to fix an amount of the verdict. The jury was not obliged to believe the testimony of the plaintiffs as to the value of the belongings lost and they had no instruction offered to help them. This was a suit upon the policy not upon any agreement reached and we will review the case only upon the same theory upon which it was submitted in the trial court. Mo.Dig., Appeal and Error, ^171(1). The point is without merit.

For the reasons stated the judgment is affirmed.

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


author: ANDERSON, Presiding Judge.

text:
    FORTY FOUR O ONE HAMPTON REALTY COMPANY, Inc., Plaintiff-Respondent, v. Gregg William KEEGAN, Defendant-Appellant.
    No. 32679.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 21, 19681
    Application to Transfer Denied May 13, 1968.

      Robert T. Ebert, Thomas, Busse, Weiss, Cullen & Godfrey, St. Louis, for defendant-appellant.
    Robert W. Henry, Clayton, for plaintiff-respondent.
   ANDERSON, Presiding Judge.

This is an action for rent alleged to be due under a lease between plaintiff and defendant. There was a verdict and judgment for plaintiff in the sum of $1,925.00. Defendant has appealed from the judgment.

The petition alleged that plaintiff was a corporation and the owner of property known as the Hampton Bank Building, 4401 Hampton Avenue in St. Louis; that on October 3, 1962, it agreed to lease to defendant Room No. 305 in said building for a term of two years to commence November 1, 1962 and end October 30, 1964, at a yearly rental of $2,100.00 payable in advance in monthly installments of $175.-00 on the first day of each month during said term.

It was further alleged that defendant moved from said premises on December 1, 1963, and had refused to pay the monthly payment due thereafter; that following defendant’s removal plaintiff attempted to rent said premises but such attempts were unsuccessful. The prayer of the petition was for judgment for $1,925.00 and costs.

By his answer, plaintiff admitted that plaintiff was a corporation organized and existing under the laws of the State of Missouri, and owner of the Hampton Bank Building. Further answering, defendant denied generally each and every other allegation of the petition. No affirmative defenses were pleaded.

The evidence shows that the lease in question was executed on October 3, 1962. It was signed by John J. Gazzoli on behalf of plaintiff, and by Gregg William Keegan as lessee. Mr. Gazzoli was Vice-President of plaintiff corporation and authorized to act for it in the matter of leasing office space in the building. The building in question was a three story structure known as the Hampton Bank Building located at 4401 Hampton Avenue in St. Louis. It was also known as a medical and professional building, with offices on the second and third floors. The part let to defendant was described in the lease as “Room #305 on the third floor of the Hampton Bank Building containing approximately 540 sq. feet.” The duration of the lease, according to its terms, was for two years commencing on the first day of November, 1962 and ending on the 30th day of October 1964. It provided for a yearly rental of $2,100.00 payable in advance in equal monthly installments of $175.00 on the first day of each and every month during said term. There was a provision in the lease that failure on the part of the lessee to pay any installment of rent promptly would, at the option of the lessor, work a forfeiture of the lease but such forfeiture would not relieve the lessee from the obligation to pay said monthly payments of rent, and in event of forfeiture the lessor was empowered to relet the premises as agent for and in the name of the lessee at any amount readily obtainable, and apply the proceeds therefrom to any sum expended by the lessor in re-entering the premises and to the payment of rent as it should become due and pay the balance, if any, to the lessee. The lease further provided that in case of termination of the lease by forfeiture the lessor would deliver possession of the premises with all keys, locks and bolts. Said lease contained the following provision:

“It is stipulated and agreed between the parties to this Lease that in the event the Lessee, Gregg W. Keegan, operating as an individual should come to his demise or in the event he should become physically incapacitated and unable to perform his duties as an attorney that the Lease herein shall be terminated upon written notice furnished by Gregg W. Keegan or his representatives to the said Lessor. The notice herein given shall be sixty days.”

On September 27, 1963, defendant sent to plaintiff by registered mail a notice of termination by him of the lease as of December 1, 1963. This letter was not introduced in evidence, but defendant testified that plaintiff was advised in said letter that he wanted to terminate the lease by reason of “problems concerning my health.” From the evidence it may be inferred that defendant was by this letter attempting to give the 60 day notice of termination under the stipulation heretofore set out providing for termination in the event the lessee should become physically incapacitated and unable to perform his duties as an attorney.

Thereafter on October 16, 1963, Sale and Evans, counsel for plaintiff, wrote the' following letter to defendant:

“We are general counsel for the Forty-Four-O-One Hampton Realty Co., Inc. Your writing of September 27th has been referred to this office for reply.
“You are hereby advised that the said writing does not constitute sufficient notice to terminate your tenancy at the above address under the terms of the lease which you entered into with our client under date of October 3, 1962.
“If it is your intention to terminate this lease under the clause relating to the physical incapacitation, your notice should so state and should be accompanied by a physician’s certification to that effect.”

In response to this letter defendant forwarded to plaintiff some evidence relative to his alleged disability. What its nature was is not clear from the evidence. It was not introduced into evidence. It is a fair inference from the testimony that it was forwarded to plaintiff’s attorneys with a letter dated November 18, 1963. It does not appear when it was received by plaintiff’s attorneys. Defendant moved from the plaintiff’s premises on November 22, 1963.

On November 26, 1963, plaintiff’s attorneys, Sale and Evans wrote the following letter to Mr. Keegan, addressed to him at the Hampton Bank Building:

“Reference is made to your letter of November 18th.
“In accordance therewith, the Forty-Four-O-One Hampton Realty Company, Inc. will release you from your lease as of December 1, 1963, provided your rent is paid through November, the premises are vacated and the keys surrendered on or before November 30, 1963. If you desire, these dates may be extended through December provided rent is paid for December.
“We hope that your illness will prove to be of a temporary nature and that it won’t be too long before you will be able to return to work.”

As heretofore stated defendant had moved from the premises prior to the time this letter was written without paying the rent due November 1, 1963. In fact the November rent was not paid until January 17, 1964. The keys were delivered to the building maintenance man at sometime not disclosed by the evidence.

On January 15, 1964, plaintiff’s attorneys, Sale and Evans wrote defendant the following letter:

“Further reference is made to your letter of November 18th and our reply of November 22, 1963. The release of your obligation under your lease is conditioned upon the payment of the rent for the last month of your tenancy. To date, payment has not been received by our client, Forty-Four-O-One, Inc.
“Unless we receive your check in the amount of $175.00 within the next few days, it will be necessary for us to institute legal proceedings.”

All the foregoing correspondence was addressed to defendant at the Hampton Bank Building. The rent due December 1 was never paid.

Plaintiff’s president, Mr. Gazzoli, testified that the agreement to terminate the lease was subject to defendant being actually incapacitated; that sometime thereafter, as a result of information received he began to investigate the matter; that he then learned defendant had moved to another office the same day he left plaintiff’s building, his phone was moved and cards were printed announcing defendant’s removal to the new office. Mr. Gazzoli further testified that he went to the new location and saw a sign on the outside of defendant’s office which read “Gregg Kee-gan, attorney at law”. He then employed Mr. Henry. He further stated that he employed Sale and Evans for the purpose of securing an interpretation of the lease and proof of Mr. Keegan’s disability. There was no direct evidence by either party that Sale and Evans were given express authority by plaintiff to surrender any substantial right of plaintiff.

Defendant moved directly from defendant’s premises to a building owned by Stuckenberg Realty Company located at 6512 Chippewa. The rent for the office space at the new location was $75.00 per month. The records of the telephone company show that defendant’s telephone number was changed to the new address at 6512 Chippewa effective as of November 26, 1963. Defendant’s secretary prepared a notice on a post card which was mailed to defendant’s clients. It announced the removal of defendant’s office from the Hampton Bank Building to 6512 Chippewa, and stated that defendant’s telephone number was the same, Vernon 2-3800.

Defendant testified that for the last twelve years most of his practice had been the trial of lawsuits for individuals in both the State and Federal Courts; that at the time the lease was executed he was working and trying cases, but that between October 1962 and May 1963 he had help in his practice from other lawyers.

Defendant’s difficulty with his health required medical attention beginning August 28, 1962. On that date he consulted Dr. Francis Bandle who was a medical doctor specializing in neuropsychiatry. Defendant testified that in May, 1963, his condition got so bad he had difficulty in talking; that he wanted to withdraw and get away from people. He stated, “ * * * I wanted * * * to pull a great sheet over my head, or something like that. I don’t know what it was. * * * I continued on going to the doctor, ***.*** he was advising me at that time, just trying to work under the handicaps that were present. And this was not helping the situation, and he pulled me of work entirely.” Defendant further testified he stopped going to his office in May 1963; that he may have been back at sometime, but that he was in a condition where he could not have any “sustained period with people.” He stated he did not try any cases between May 1963 and December 1963, or appear in any court to argue motions or present matters of any type; that during this period he maintained his office with his secretary and that other attorneys came there to assist with matters, such as taking depositions, pleadings and motions.

Defendant further testified that his condition got so bad he did not want to leave his house; that he would call his office on the telephone and transact business through his secretary because he had difficulty dealing with people; that he authorized attorneys in his office to prepare court papers in his name for which service they were paid; that when he returned to active practice he tried his first case to completion in January 1966; that he thought the last case he tried to completion before that was prior to May 1963; that his secretary, Mrs. Heritz held a power of attorney to write all checks, deal with his bank accounts, sign his name and “handle everything,” that she paid her own salary and paid the other lawyers; that “she ran the show.”

On cross-examination, defendant testified that Steve Gilmore, a lawyer, was employed by him on a full time basis prior to the execution of the lease with plaintiff; that thereafter the situation got worse; that he could not go into court or talk to clients; that he never had quit; that he fought it all the way and was still fighting it, but “by large and far, I just wasn’t performing”; and that he tried to hang onto his practice.

Defendant gave the following testimony:

“Q. * * * As a matter of fact, in May, of 1963, you were still getting business, personal injury cases, isn’t that a fact? A. I have continued to get business all my life. * * * Q. We are talking about the period of this lease, from October, of 1962 until November, of 1963, when you left. A. I had a number of different attorneys go out and obtain cases for me.”

Defendant further testified that the case of Bitter v. Mound City Yellow Cab Company was sent to him. It concerned an accident which occurred in May 1963. His name appears on the petition as attorney for plaintiff. The suit was filed October 17, 1963 and was still pending. Defendant stated that his secretary signed his name to the petition with his authorization. An amended petition was filed in the case in April, 1964.

Defendant further testified:

“Q. Now, Mr. Keegan, following November 1963, when you moved out of the Hampton Bank Building, you continued to file lawsuits, did you not, right along, in both the city and the county circuit courts on behalf of people in damage suits, as you have talked about? A. I am not denying that the suits were filed.”

Defendant was shown a petition in a lawsuit filed in the Circuit Court January 10th, 1964, with his name appearing thereon as attorney for plaintiff. He stated his name was signed to the petition by his secretary.

The record also shows that a petition was filed January 15, 1964 in the Circuit Court of the City of St. Louis signed by Mr. Keegan as attorney for plaintiff.

Defendant further testified on cross-examination :

“Q. Now, you were earning money as a practicing lawyer during the year 1964, were you not? A. Every year since I’ve been in the practice of law, I have earned money. Q. So that you have had income from practicing law in 1963, 1964, and 1965, and so on, is that correct? A. My income dropped appreciably when I was sick. Q. The question was, you did have income, did you not? A. You mean, I assume, a dollar or more, — yes.”

Defendant admitted that in May 1964, the court awarded to him a fee of $2500 in the case of Bitter v. Mound City Yellow Cab Company, which was a minor’s case. He stated however that he did not know how much of the fee he received — that it was handled by someone else.

Defendant denied he was practicing law in January 1964. He said: “I was sick. I came out of Renard Hospital * * * around the first part of December, and Dr. Shobe had me go in the office a certain amount of time every day. But if you say I was practicing law, I wasn’t practicing law. I was actually practicing how to walk again.” When asked about the petitions filed in his name, defendant replied, “They are my law practice, carried out with the aid and help of a lot of people that I know very well. * * * I wasn’t doing the job.”

Defendant also gave the following testimony:

“Q. Wasn’t the only reason you changed your offices from the Hampton Bank Building to 6512 Chippewa, because the rent was less? A. No. It was a serious question as to whether I was ever going to get on my feet again. I was supposed to go to Baltimore for six months for treatment, that type of thing. There was some question as to whether I would ever go back to work. Q. Was there some reason why you didn’t close your office rather than move it? A. I couldn’t close my office. I wasn’t going to turn my back on people who were working for me, people who were helping me. Q. Was there any reason you couldn’t continue to operate in the Hampton Bank Building as easy as in the 6512 Chippewa Building? A. There were a number of reasons. I was having panic reactions. I had to get out. I had this feeling that I had to get out of wherever I was immediately, and you can’t do that when you are on the third floor.”

On redirect examination, defendant testified that in the minor’s case referred to on cross-examination the file showed that Mr. Gioia’s name appeared on the court memorandum as attorney for plaintiff in said suit; that Mr. Gioia helped him while he was sick and he paid Mr. Gioia; that the other lawyers who helped were Joseph McGlynn, Jr., Vince Hartigan, Jack Bardg-ett, James Godfrey, James Rankin, Morton Lange, and Jerry Slater; and that he paid them for their services.

Dr. Bandle testified that defendant first came to his office on August 28, 1962. He stated: “* * * he was suffering from a great number of physical complaints based upon emotional problems. He had a great deal of what we call phobic reaction. He was fearful of many things. * * * I treated him as an office patient.” The doctor further testified that the treatment administered between August, 1962 to May, 1963 was psychotherapy and drug therapy to alleviate the anxiety and phobic reactions he was suffering from; that in May of 1963, because of lack of progress, he advised defendant that he should think of leaving the city, and not try to practice law for a period of time to see if putting him out of the whole environment might help; that on June 17 he told defendant he had to get away from business completely until the first of September, and even suggested that he might shut down his office; on September 3rd he told defendant he should stay out of the city for two more weeks; at that time defendant was phobic, anxious, and had somatic symptoms of air hunger and panic reactions; that in a panic reaction the anxiety becomes so great the patient loses his ability to judge things correctly, and the psycho-motor activity becomes usually quite agitated; that he could not honestly say that in September, 1963, defendant had panic reactions, but did sometime between May 1963 and September 1963; that air hunger is a term used when people become very agitated; that in air hunger they feel they cannot get enough oxygen and they hyperventilate, which causes them to feel light headed and may actually cause the person to faint; that he saw this happen to Mr. Keegan in his office, but he did not know if it occurred during the period from May 1963 to September 1963; and that during the whole period he was treating defendant he administered psychotherapy which was an attempt to help the patient understand his problems.

Dr. Bandle then gave the following testimony :

“Q. Doctor, at that time, in September, 1963, do you have an opinion, based upon reasonable medical certainty, whether or not Mr. Keegan was physically incapacitated to perform the duties and functions of an attorney at law under the way that he had performed them in the past, in other words, insofar as being a trial attorney? A. Yes, I have expressed that opinion to his insurance company. Q. What is your opinion as to whether or not he was physically incapable or not in the period September 1, 1963, around that time? A. At that time I made a statement that he was totally disabled.”

Dr. Bandle further testified he continued to see defendant after September 1, 1963; that from that time until he went to the Enoch Shepherd Pratt Hospital in 1964, he was totally disabled from performing his practice as a trial lawyer; that he suggested to defendant in May 1964 that he go to the hospital, but he did not go there until September 1964; that he remained at the hospital four days, and returned because his phobic reaction about leaving his home was so great that he could not remain there; that the Shepherd Pratt Hospital is a psychiatric hospital in Baltimore, Maryland; that that was the last time he saw defendant because Mr. Keegan was to go to Renard Hospital, and since he was not on the staff there, he transferred the case to Dr. Shobe; and that defendant was at that time still incapacitated to try cases and practice law the way he had prior to his illness.

Dr. Frank O. Shobe was called as a witness by defendant. He testified he was a physician specializing in psychiatry; that he first saw Mr. Keegan in his office in July, 1964; that defendant gave a history of being quite depressed for a period of several years and unable to practice law because of a panic reaction, a term used for a highly nervous condition which prevented him from going into the court room; that he did not make a physical examination of defendant at the time; that a physical examination is not done by a psychiatrist during the first or second interviews because most of their patients are referred by internists who have previously made the physical examination and necessary laboratory examinations, which was the case with Mr. Keegan; that he saw Mr. Keegan twice in July, of 1964, then three or four times during the first two weeks in September, 1964, after defendant had returned from the Enoch Shepherd Pratt Psychiatric Hospital in Maryland.

Dr. Shobe further testified: “ * * * I had formed an opinion as to what I thought was the best procedure to try and help him, in July, of 1964, and I had recommended at that time that he either go into a hospital here in St. Louis or to a hospital out of town, and I selected one in Baltimore for this particular case for purely technical reasons. * * * This hospital is designed to take care of the type of illness Mr. Keegan was suffering from. And again, when he had returned from Maryland, and I saw him the early part of September, 1964, I again recommended to him that he come into the hospital. * * * He was in Renard Hospital from September 14, 1964 until October 30, 1964.”

He further testified that while in the hospital defendant’s treatment consisted of drug therapy and psychotherapy; that defendant was better when he left the hospital; that he saw defendant two weeks prior to the trial, (March 25, 1966) and his condition was very good at that time; that in his opinion defendant could go back and try cases.

Dr. Shobe gave the following testimony over plaintiff’s objection that the doctor had not been shown to have sufficient knowledge of the practice of law to give opinion testimony with reference to defendant’s ability to perform his duties as an attorney:

“Q. Doctor, I will ask you, based on the history you obtained from the patient, and based upon your consultations with him in the period July, 1964 and subsequent thereto, whether or not you have an opinion, based upon reasonable medical certainty, whether or not he was physically incapacitated and unable to perform his duties as an attorney at that time? * * * A. Yes. He was totally disabled. * * * Until about October, the middle of October, 1964. While he was still at Renard Hospital, I started him going back to his office for an hour a day in the early afternoon after lunch, for example, * * * and he would go back during the first week, as I recall, for an hour a day; and the second week I had him go back for two hours a day. I then discharged him from the hospital, as I said, and it was about three or four months before he was able to go to the office and stay for a period of three or four hours a day. * * * I think, as I recall, he went back to his office full time duty in about the middle of 1965.”

On cross-examination, Dr. Shobe testified he knew defendant maintained an office; that Mr. Keegan told him he had a secretary there, who was taking care of some of the legal matters still pending, apparently when he became ill; that he did not know whether Mr. Keegan obtained any new cases from the first time he saw him in July, 1964 to October, 1964; that he did not know whether Mr. Keegan filed any lawsuits during that period; that he would not have an opinion as to whether filing a lawsuit would be practicing law; that he had not seen Mr. Keegan prior to July, 1964; and that from his history Mr. Kee-gan’s problems related as far back as 1958.

Anna Louise Heritz was employed as secretary by Mr. Keegan continuously from 1948 to the time of the trial below. She testified that when the office was moved to the Hampton Bank Building, Mr. Keegan was coming to the office; that from October 1962 to December or January 1963 he would come to the office about three or four times a week; that from January 1963 to May 1963 he would come to the office, but not as frequently as he had previously; that during that time he would maybe come to the office three days a week; that during said time he saw people, dictated letters and prepared suit papers; that she had no recollection of him trying any cases during the period from January to May, 1963; that other attorneys were doing his trial work during that period; that those attorneys were, Joseph McGlynn, Anthony Gioia, Edward Filippine, Carl Gaertner, James Rankin, James Godfrey and R. J. Slater; that these attorneys were paid; that from January 1963 to May 1963 depositions were taken, but not by Mr. Keegan; that the depositions were taken by one of the attorneys she had theretofore mentioned for which they were paid as soon as the deposition was taken; that during the period from May, 1963 to September, 1963, Mr. Kee-gan came to the office very rarely, maybe on the average of one day a week at the most; that during that time she took care of routine matters, ordering police reports, pictures and things of that nature; that as to court papers that had to be filed she would contact the attorney handling the matter who would come in and look over the file; and she would prepare various pleadings at his direction; that she would type Mr. Keegan’s name on the pleadings, and in some instances sign Mr. Keegan’s name; ■ that in some instances the other attorneys would sign Mr. Keegan’s name to the pleadings, and in some instances their name appeared as co-attorney; that Mr. Keegan was not in his office during the period between September 1, 1963 and December 1963, being unable to leave his house; that he was physically disabled so that she was unable to talk to him about any problem or plan in connection with his practice, but had to consult the other attorneys.

Mrs. Heritz testified she prepared the notice of termination of the lease; that Mr. Keegan asked her to prepare the notice in view of his inability to do his work; and that the office was moved on November 22, 1963 to 6512 Chippewa.

Mrs. Heritz further testified: “Well, Mr. Keegan had indicated to me that he was going to have to go away for a period of time because of his health, and that he could no longer maintain the Hampton Bank Building office since he wasn’t able to practice, and I wanted to get some place so that the clients would know where we were, and in fairness to them, he wanted to maintain his name at some location. So he had previously, as he told you before, talked to Mr. Diehl about the location at 6512 Chippewa, and so we made arrangements to move.”

It further appears from Mrs. Heritz’ testimony that she made all the necessary arrangements for moving, had the telephone number changed to the new location, and prepared and mailed the card notifying clients of the change of address. She also stated she talked to Mr. Keegan to the extent only of advising him what she had done. She was shown petitions in suits filed and stated she signed Mr. Keegan’s name to them after they were prepared by the attorneys who were helping Mr. Keegan with his law business. She further testified that Mr. Keegan started coming into the office the latter part of 1964 at the recommendation of his doctor, for maybe an hour each day in the beginning; that he would just sit there and not talk to anybody, or take testimony; that she was instructed to give him a file for him to look over and that after a while he increased the time to two hours and then to three. The witness further testified: “He’s pretty well back to work now. * * * He has just recently started back to work. As far as the trial of cases, he tried his first case in January of this year.” She further testified that Mr. Keegan did not try any cases in 1964 or 1965, that she knew of.

On cross-examination, Mrs. Heritz testified that in 1958, Mr. Keegan had some problems, and from 1958 to 1962 his work was carried on very much as it was later; that she typed petitions and things of that nature with the assistance of other attorneys; that other attorneys were helping, six or seven of them, when the office was moved into the Hampton Bank Building. It further appears from Mrs. Heritz’ testimony that Mr. Keegan received fees for the work on cases handled for him by other attorneys which practice had been going on since 1958; that when the office was moved to the Chippewa location Mr. Keegan talked to Mr. Diehl; that the office was maintained at 6512 Chippewa so that clients could know where they were; that business was not maintained there to any great extent ; that there were possibly some persons who, not being able to reach Mr. Keegan personally, would not turn the cases over to them; that the telephone was moved at the same time the office was moved, so that there was no reason why clients could not reach Mr. Keegan except he was not in the office at that time; that Mr. Gioia had a key to the office and would come in, go over the files and prepare pleadings; that during 1964 there was minimal income; that she did not keep the books and records with reference to Mr. Keegan’s income, but wrote checks and signed her name to them; that they moved some of the work to 6512 Chippewa that they had prior thereto; that she filed two lawsuits in January at the direction of the lawyers who were helping Mr. Keegan; that these lawsuits were Mr. Keegan’s, and he would get the money out of them if they were disposed of; that Mr. Gioia prepared the original petition in the case of Bitter v. Mound City Yellow Cab Company, and she handled the signing of it; that she took a statement in the case; that Mr. Keegan was at that time conducting business during May of 1963 inasmuch as she was there, and with the help of other attorneys; that during 1964 Mr. Keegan settled very little litigation; that the doctor thought complete cessation of work was the only treatment that would help him; that he .had the problem that if he was able to return to work he could not go onto the third floor; that at the time he was seeing Dr. Bandle he had some ideas about not getting into elevators or going up stairs.

The Court, at plaintiff’s request, gave Instruction No. 3, which reads as follows:

“Your verdict must be for the plaintiff if you believe:
“First, that plaintiff and defendant entered into a commercial lease wherein defendant agreed to pay $175.00 per month for a period of two years dating from November 1, 1962 to October 30, 1964, for the premises mentioned in evidence.
“Second, that defendant moved from said premises and has paid no monthly payments since December 1, 1963.
“Third, that defendant was not physically incapacitated and unable to perform his duties as an attorney, and further, that defendant’s moving from said premises and failure to pay monthly rental after December 1, 1963 was a breach of lease on the part of defendant, and
“Fourth, as a direct result of such breach of lease the plaintiff sustained damage.”

Defendant contends that the instruction is erroneous because it did not submit the issue of cancellation by mutual agreement of the parties.

The point urged is without merit. Cancellation was not made an issue in the case by the pleadings or otherwise. Defendant’s answer pled only a general denial to the allegations of plaintiff’s petition. Under Civil Rule 55.10, V.A.M.R. matters constituting an avoidance of a contract such as cancellation by mutual consent must be affirmatively pleaded. Defendant not only was content to try the case without such pleading, but actually joined in submitting the issue as presented by plaintiff’s instruction. The Court gave at defendant’s request the following instruction: “Your verdict must be for defendant if you believe that defendant was physically incapacitated and unable to perform his duties as an attorney from December 1, 1963 to October 30, 1964.” This was the only instruction requested by defendant. The alleged physical incapacity of defendant was the only real contested issue submitted. The court did not err in the respects claimed.

The next point urged is that the Court erred in denying defendant’s motion for a directed verdict. It seems to be defendant’s contention that because he was not able for a time to do trial work and personally perform certain other duties of his profession he was physically incapacitated within the meaning of the disability clause of the lease.

The motion for a directed verdict filed by defendant does not preserve this point for review. Therefore it is not before this Court for consideration. There was ample evidence to support the issue actually submitted by plaintiff’s instruction, as appears from our statement of the facts developed by the evidence.

Defendant’s next point is that the court erred in submitting the case to the jury for the reason that plaintiff is estopped from claiming a wrongful breach of the lease, having agreed to a cancellation thereof. We must rule this point against defendant for the reason that an affirmative defense of cancellation and estoppel was not pleaded. See Civil Rule 55.10 V.A.M.R.

In the course of the argument, Mr. Ebert, representing defendant said:

“Now, I submit, Ladies and Gentlemen, the check was sent to them; they accepted the check; they deposited it. That constituted, in my opinion, that there was an agreement between these two parties that this lease was then and there terminated.
“Mr. Henry: Your honor, I object to that last statement of counsel. There hasn’t been any pleading of a release of any kind in this lawsuit.
“The Court: The objection is sustained. The jury is instructed to disregard the last statement of counsel as not being an issue in the case, not having been pleaded. Proceed.”

In his points relied on in this Court defendant complains of the above ruling contending that cancellation of the lease by agreement was an issue for the jury. This alleged issue was not pleaded nor was it submitted to the jury. Furthermore, the point now urged was not preserved for review in defendant’s motion for new trial.

The judgment of the trial court is affirmed.

RUDDY and WOLFE, JJ., concur.


author: SAMUEL E. SEMPLE, Special Judge.

text:
    Howard NEIL, Plaintiff-Respondent, v. Joseph J. MAYER, Sr., Defendant-Appellant.
    No. 32534.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Motion for Rehearing, or, to Modify Opinion, or to Transfer to Supreme Court Denied March 21, 1968.
    Application to Transfer Denied May 13, 1968.

      Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Fred Leicht, Jr., St. Louis, for defendant-appellant.
    Samuel A. Goldblatt, William R. Kirby, St. Louis, for plaintiff-respondent.
   SAMUEL E. SEMPLE, Special Judge.

Plaintiff sued for $15,000 damages for personal injuries alleged to have been sustained as a result of an automobile collision. The jury returned a verdict for plaintiff in the sum of $12,000. Defendant appeals from the judgment rendered on the verdict.

The case was submitted to the Jury on three specifications of negligence which were failure to keep a careful lookout, defendant was following plaintiff’s vehicle too closely and on the so-called rear end collision doctrine. Defendant’s principal assignments of error are that there was insufficient competent evidence to support two of the three submissions of negligence, to-wit, following too closely and the rear end collision doctrine.

The accident occurred on April 24,1964, a little before 4 P.M. in the southbound lanes on Lemay Ferry Road some distance south of Lindbergh Road in St. Louis County. At the point of the accident Lemay Ferry Road consists of two southbound lanes and two northbound lanes. The weather at the time of the accident was clear, visibility good and the pavement was dry. South of Lindbergh on the west side of Lemay Ferry Road is located a 9-0-5 Liquor Store, a Texaco filling station and an entrance to the Famous Barr South County Store.

Plaintiff’s version as to the collision was as follows: Plaintiff, who was driving a taxicab, received a call about 3:30 P.M. to pick up a package at the Famous Barr downtown store and deliver it to that company’s south county store on Lemay Ferry Road. He picked up the package downtown and proceeded to Lemay Ferry Road. He traveled south on Lemay Ferry Road driving in the right-hand lane next to the shoulder at a speed of approximately forty miles per hour. As he approached the intersection with Lindbergh he slowed down and as the traffic light was in his favor, he proceeded on across the intersection. He continued on south in the right-hand lane and slowed down to about 25 miles per hour looking for the driveway to turn into the Famous Barr South County Store when his vehicle was hit. Plaintiff testified that immediately prior to the accident there was no traffic in front of or alongside him, that he had not turned on his directional signal, that he had not looked in either of his rearview mirrors and did not see defendant’s vehicle at any time prior to the accident or did not hear a horn sounded or brakes being applied.

Plaintiff testified that he was hit from the back and was thrown out of the right front door. He was dazed and next recalled sitting on the ground with his back to the bumper of his cab. He did not know where the vehicles came to rest after the collision and did not know what damage was done either to the taxicab or to defendant’s vehicle.

Police Officer Caho, who was called to the scene of the accident, testified on behalf of plaintiff that when he arrived he observed a taxicab sitting in the northbound lane of Lemay Ferry Road and a Plymouth sitting sort of crossways in the southbound lane. That he observed loose mud and dirt on the pavement shaken loose by the impact located two feet north of the Texaco Filling Station driveway and three feet from the shoulder in the southbound lane next to the shoulder. That the location of this debris was about 500 to 550 feet south of the Lindbergh intersection and about 175 to 200 feet south of the 9-0-5 Liquor Store driveway. He also estimated that the driveway to the Famous Barr Store was about 300 feet south of the debris. The officer also testified that defendant stated to him that he had been driving in the curb lane, had glanced over to the right for traffic coming out of the driveway and when he looked back he saw the taxicab, slammed on his brakes but couldn’t stop. Officer Caho identified two photographs showing damage to the taxicab and defendant’s Plymouth. Edward Miles, an employee of the Black and White Cab Company, testified for plaintiff that he received a call about the accident and arrived at the scene within an hour. He identified pictures showing the damage to plaintiff’s taxicab. These photographs identified by Officers Caho and Miles showed damage to the side of the left rear fender back of the left rear wheel of the taxicab. The pictures clearly did not show any damage to the rear end of the taxicab.

Plaintiff introduced portions of a deposition of defendant as admissions against interest which were to the effect that defendant was traveling south on Lemay Ferry Road in the outside lane. There were cars in front of him when they crossed Lindbergh. After he crossed Lindbergh he looked to the right at the 9-0-5 and when he looked back there was the taxicab in front of him. That the cab was two or three car lengths away when he applied his brakes. That when he first saw the cab it was traveling about 10 miles per hour straddling both lanes going east. That he was traveling about 40 miles per hour when he applied his brakes. That the left front of his car hit the left rear side of the taxicab. That he did not see the taxicab in front of him when he crossed Lindbergh and never saw it till he looked back after glancing to the right. That the cab must have come out from the side.

The only evidence presented on behalf of defendant was the testimony of defendant himself. Defendant testified that he was headed south on Lemay Ferry Road going home from work driving his Plymouth automobile. That as he approached the Lindbergh intersection he was traveling 40 to 45 miles per hour in the right-hand lane next to the shoulder and the traffic light was in his favor. There were cars ahead of him. He slowed down a little bit as he crossed the intersection and upon clearing the intersection he might have stepped up his speed a little. That he glanced over to- the 9-0-5 Liquor Store to see if any cars were coming out and when he looked back ahead he saw the taxicab about two or three car lengths ahead of him heading east straddling the two southbound lanes with the back end of the cab in the outside lane and the front end in the inside lane. That he was traveling in the outside lane. That he applied his brakes and attempted to swerve. That the left front of his car hit the left side of the taxicab back of the rear left wheel. That his car did not strike any portion of the rear end of the taxicab. That the impact was hard causing the taxicab to spin completely around and come to rest in the northbound lanes heading south and his Plymouth coming to rest heading in a northeasterly direction across the southbound lanes.

Defendant’s first assignment is that the court erred in giving Instruction No. 4 which was a verdict directing instruction for plaintiff submitting in the disjunctive defendant’s failure to keep a careful lookout, or defendant was following plaintiff’s taxicab too closely. The instruction was given in the proper M.A.I. form. Defendant contends that there was insufficient competent evidence to- support the submission that defendant was following plaintiff’s cab too closely.

In determining this question, the established procedure is to consider the evidence in a light most favorable to plaintiff, giving him the benefit of all favorable inferences arising therefrom and disregarding defendant’s evidence except insofar as it may assist plaintiff. Sundermeyer v. Lentz, Mo., 386 S.W.2d 16, 18. A jury reasonably could find from the evidence that plaintiff was traveling south in the right-hand lane of traffic at a speed of 20 to 25 miles per hour just before and at the time of the collision. There was also evidence that defendant was also traveling south in the right-hand lane of traffic at a speed of 40 or more miles per hour when defendant first saw plaintiffs taxicab two or three car lengths ahead of him and that defendant was unable to avoid hitting the taxicab by applying his brakes and attempting to swerve. It is concluded that the testimony as to the direction and lane of traffic in which both plaintiff and defendant were traveling plus the testimony as to the speed of both vehicles and the distance separating them when defendant first saw plaintiff’s taxicab ahead of him just before the collision would support the submission to the jury that defendant was negligent in following plaintiff too closely under the circumstances and the court did not err in giving Instruction No. 4.

Defendant next contends that the court erred in giving Instruction No. 6 submitting the issue of defendant’s negligence under the rear end collision doctrine because there was insufficient competent evidence to support the instruction. In determining this question we must consider all of the evidence in the light most favorable to the plaintiff, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to plaintiff the benefit of all favorable inferences that reasonably may be drawn from such evidence. But of course each and every fact essential to liability must be predicated upon legal and substantial evidence. Neither may any fact essential to liability be inferred in the absence of a substantial evidentiary basis. Probst v. Seyer, Mo., 353 S.W.2d 798, 802, 91 A.L.R.2d 1252. Substantial evidence is that evidence which, if true, has probative force upon the issues and from which the trier of fact can reasonably decide the case on the fact issues. Zeigenbein v. Thornsberry, Mo., 401 S.W.2d 389, 393. The question of whether the evidence in a given case is substantial is one of law for the court. Probst v. Seyer, supra.

The rear end collision doctrine is based on the rule of law which recognizes that “if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.” Todd v. Presley, Mo., 413 S.W.2d 173, 175; Snyder v. Hedges, Mo.App., 381 S.W.2d 376, 380; Jones v. Central States Oil Co., 350 Mo. 91, 164 S. W.2d 914, 918.

Defendant argues that there was no competent or substantial evidence that defendant ran into the rear of plaintiff’s taxicab which was an essential element of proof to justify a submission under the rear end collision doctrine. Clevenger v. Walters, Mo., 419 S.W.2d 102, 106. The photographs introduced by both plaintiff and defendant show that the damage to plaintiff’s taxicab was to the left side near the rear and clearly do not show any damage to the rear end of the vehicle. The only evidence in the record to establish the fact that defendant did collide with the rear end of plaintiff’s taxicab is the testimony of plaintiff himself. Plaintiff testified on direct examination as follows:

“Q. How far then did you travel south-wardly on Lemay Ferry Road when something happened ? A. Approximately two or three hundred feet. The first thing I knew something hit me and that was about the extent of it. Q. You had gone two or three hundred feet; then what happened at that time? A. Somebody hit me from the back, threw me out. * * * Q. Now, would you describe this impact, tell us what happened, Mr. Neil? A. What do you mean, in my own words? Q. Yes. A. All I know is that I was driving along there and trying to make the — approaching where I was going to turn right and somebody hit me from the rear. That’s the best I know— threw me out the right hand door and I landed on the pavement there up to the front bumper there and everything seemed like the cab was moving a little bit but I couldn’t be real precise because I was a little bit unconscious there.”

Plaintiff’s testimony on cross-examination was:

“Q. And, you never saw the defendant prior to the collision? A. No, sir. Q. Then, how certain are you Mr. Neil, that your vehicle was struck in the rear? A. I remember that it was from the impact and I was told by a different bystander. * * * Q. Didn’t you assume your cab was hit from the rear ? A. I presumed it was, yes.”

It is true that a case to be submissible to a jury depends on proof of facts and cannot be justified by mere conclusions of witness and also a witness may qualify his testimony in such a way as to render it of no probative value. Zeigenbein v. Thornsberry, supra. There also comes a point when statements given by a witness whether in the form of estimates or otherwise are so far removed from actual possibilities that they lose the force of bona fide estimates and honest opinions and become so manifestly incredible, irreconcilable with, and contrary to physical laws and common human knowledge that they demonstrate in and of themselves that they are made without actual knowledge and are mere conjecture, or wishful thinking and do not constitute probative evidence. Ewen v. Spence, Mo.App., 405 S.W.2d 521, 524, and cases therein cited; Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885, 891.

Plaintiff qualified his direct testimony that he was hit from the back or rear by saying “that’s the best I know” and on cross-examination when questioned how certain he was that his vehicle was hit from the rear said that it was from the impact and what he was told by a bystander and that he “presumed” that his cab was hit from the rear. This testimony considered in the context that he never saw defendant’s vehicle and did not know where his cab was damaged and further considered in the light that such testimony is entirely inconsistent with the undisputed photographic evidence that there was no physical damage to the rear end of the taxicab but only to the left side near the rear, indicate a lack of knowledge in respect to the fact of a rear end collision testified to and does not constitute probative evidence. It is concluded that there was no substantial evidence presented to establish that defendant’s vehicle collided with the rear end of plaintiff’s taxicab. Under the circumstances here presented plaintiff did not make a submissible case under the rear end collision doctrine and the giving of Instruction No. 6 was error.

This disposition of the case makes it unnecessary to consider defendant’s other contention as to the refusal to give a converse instruction in addition to the converse instructions given by the court as it is unlikely that the error which defendant claims here will occur again in a new trial.

The judgment is reversed and the cause remanded for a new trial.

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


author: CLEMENS, Commissioner.

text:
    William H. EMANUEL, Plaintiff-Appellant, v. Alvin R. RICHARDS, Defendant-Respondent.
    No. 32951.
    St. Louis Court of Appeals. Missouri.
    March 19, 1968.

      Val Terschluse, St. Louis, for appellant.
    Clement A. Kieffer, St. Louis, for respondent.
   CLEMENS, Commissioner.

Both the magistrate and circuit courts dismissed plaintiff’s petition for failure to commence his action within the five-year statute of limitations, and he appeals. The issue: Although filing suit and issuance of summons usually tolls a statute of limitation, did the plaintiff’s nine-month delay in having an alias summons served on the defendant amount to such a lack of diligent prosecution as to revive the statute of limitations? We say no.

Plaintiff’s cause of action accrued March 13, 1961, when the defendant rear-ended his car. Plaintiff filed his statement in the Magistrate Court of St. Louis on October 29, 1965, some four months before the running of the five-year statute, § 516.120, V. A.M.S. He alleged the defendant resided in Jefferson County. The first summons was issued immediately, for service on the defendant in Jefferson County, but was returned unserved. On the return date, November 24, 1965, plaintiff got the second summons, similarly directed; it, too, was returned unserved and the cause was continued generally. (During this continuance the plaintiff’s cause of action reached its fifth anniversary, on March 13, 1966.) Then on June 14, 1966, the third summons issued, similarly directed, and it also was returned unserved. On the return date, July 11, 1966, the fourth summons issued, this one for service by the Sheriff of St. Louis County. It was served on the defendant July 26, 1966, five years and four months after plaintiff’s action had accrued.

Thus, the record shows that within nine months after filing suit the plaintiff made four tries before he finally got service on the defendant. The defendant appeared specially and moved to dismiss the action on the ground it was barred by the five-year statute. The defendant conceded the petition had been filed and summons issued within the five-year period, but he contended the original summons was not “kept alive by timely renewals” and “the alleged service claimed in July, 1966, was out of time; the cause having lapsed * * * .” The Magistrate Court granted the motion. On plaintiff’s appeal the Circuit Court also dismissed, citing St. Ferdinand Sewer District etc. v. Turner, Mo.App., 208 S.W.2d 85.

The applicable statutes do not justify the dismissal. Sections 516.100 and 516.120, V.A.M.S., declare that an action such as this must be commenced within five years after it accrues. Section 517.020, V. A.M.S., declares that an action before a magistrate is deemed commenced when summons is delivered to the sheriff to be served. The key word in these statutes is “commenced”, and the record here shows that the action was “commenced” when the petition was filed and summons delivered to the sheriff on October 29, 1965, well within five years after the date plaintiff’s cause of action had accrued, March 13, 1961. A long line of cases holds that the filing of a petition and the issuance of summons halt the running of statutes of limitation even though the summons is served thereafter. See Tice v. Milner, Mo., 308 S.W.2d 697[3, 5-6], and cases collected in 19A Mo.Digest, Limitation of Actions, <®=5118, 119.

The clear words of the statutes notwithstanding, they are limited by a judicially created qualification: Since statutes of limitation are favored by the law, they should not be perverted or extended by stratagems. If the commencement of an action is to stop the running of a statute of limitation, the commencement must be genuine — one made in good faith. This qualification works two ways, actively and passively. First, the principle of “commencement” does not apply when a plaintiff files suit within time but actively obstructs service of process until a time after the limitation period has run its course. See Green v. Ferguson, Mo.App., 184 S.W.2d 790[2], and Hill-Behan Lumber Co. v. Sellers, Mo.App., 149 S.W.2d 465 [2-4], Second, the passive phase of the qualification is a corollary to the active phase: the filing of a petition and issuance of summons is but a conditional halting of the statute of limitation, and unless a plaintiff thereafter exercises due diligence in obtaining service of process the statute continues to run. This passive qualification confronts us here. Judicial application of the qualification must be on a case-by-case basis, as seen by the following decisions declaring and applying it.

In Mayne v. Jacob Michel Real Estate Co., 237 Mo.App. 952, 180 S.W.2d 809, the plaintiff filed suit and summons was issued but returned non est. Plaintiff waited ten years and then, after limitations had run, got service by an alias summons. This court analyzed earlier cases and concluded that by plaintiff’s failure to make diligent use of available means to serve the defendant, he had forfeited his right to claim that the statute of limitation had been tolled by the mere filing of suit and issuance of summons. We followed this in St. Ferdinand Sewer District v. Turner, supra (relied on by the trial court here). There the plaintiff filed suit and summons was issued but returned non est. Plaintiff did nothing more. Thirteen years later the defendants, still un-served, successfully moved for dismissal on the ground the statute of limitation had run. We affirmed, relying on the Mayne case.

The Supreme Court has twice applied the qualification declared in the Mayne and St. Ferdinand cases. In Driscoll v. Konze, Mo., 322 S.W.2d 824, plaintiff sought to revive a judgment by scire facias, and without reason waited over a year to request an alias writ. The trial court upheld defendant’s contention that the statute of limitation had run. On appeal the court considered plaintiff’s numerous previous delays in reviving the original judgment and affirmed, holding plaintiff’s delay had “worked a discontinuance” of the original judgment. Next, in Continental Electric Company v. Ebco, Inc., Mo., 375 S.W.2d 134, a mechanic’s lien suit, the plaintiff filed suit within the six-month limitation period, but summons was returned non est. Although means of service on the defendant’s registered agent was readily available to the plaintiff, he did nothing. Eight months later, when the question of service was raised in a pre-trial conference, the plaintiff finally requested an alias summons, which was promptly served. The trial court rendered judgment for defendant on the ground the six-month statute barred plaintiff’s action. On appeal the court affirmed, relying on the Mayne, St. Ferdinand and Driscoll cases. In declaring that the plaintiff’s inexcusable delay in obtaining service was fatal to his action, the court considered the comparative times of the six-month statute and the eight-month delay, and also the readily available means of getting service on the defendant. In both the Continental and Driscoll cases the Supreme Court declined to set any general standard for measuring a plaintiff’s lack of diligence in obtaining service of process and held that each case must be ruled on its own facts. We will do that here.

To repeat, the issue before us is whether plaintiff’s nine-month delay in getting an alias summons served on the defendant amounted to such a lack of diligent prosecution as to revive the five-year statute of limitations which had been conditionally tolled by the timely filing of his statement and the issuance of the original summons. We must reach our decision on the contents of the transcript filed here. It consists only of the magistrate and circuit court record entries. We assume therefore that no evidence was presented to the circuit court. (Fine v. Waldman Mercantile Co., Mo.App., 412 S.W.2d 549 [7].)

These record entries, previously detailed, show that after filing suit the plaintiff initiated three futile attempts to have process served on the defendant in the county of his alleged residence, and finally got summons served in another county. All this within nine months after filing suit. These facts do not measure up to the long delays in the Mayne, St. Ferdinand, Driscoll or Continental cases. Because no general standard is available for measuring lack of diligence, we must rule this case on its own facts. We hold that the record fails to show plaintiff was guilty of a lack of diligence in prosecuting his action. Therefore, the statute — not the judicial qualification— controls. The action was commenced in time, and the trial court erred in dismissing plaintiff’s petition.

The judgment of dismissal is reversed, and the cause is remanded.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment of dismissal is reversed and the cause is remanded.

ANDERSON, P. J., WOLFE, J., and DOUGLAS W. GREENE, Special Judge, concur.