text:
    Georgiann HAWKINS, Claimant-Respondent, v. NIXDORFF-KREIN MANUFACTURING COMPANY, Employer, and Liberty Mutual Insurance Company, Insurer, Appellants.
    No. 31883.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.
    Edward Friedewald, St. Louis, for appellants.
    Edward F. Downey, Lawrence E. Ehr-hart, John J. Delabar, St. Louis, for claimant-respondent.
   DOERNER, Commissioner.

This case, involving a claim under the Workmen’s Compensation Act, was recently reassigned to the writer. The Industrial Commission by its final award modified but affirmed the Referee’s award in favor of claimant. The employer and insurer appealed to the Circuit Court of the City of St. Louis, which entered a judgment affirming in part and reversing in part the Commission’s final award. Both sides appealed from the judgment, hut as the claimant subsequently dismissed her appeal we have before us only that of the employer and insurer.

On January 5, 1959 Georgiann Hawkins, the claimant, was exposed to carbon monoxide gas when it filtered into a room in which she was working for Nixdorff-Krein Manufacturing Company, her employer. When her foreman directed her and her fellow employees to leave the room she went first to the ladies’ room. She felt weak, dizzy, nauseated, and had a headache, but did not regurgitate. Oxygen was administered to her. Later she went to the nurse’s office, became shaky and started to cry, and laid down on a cot. While there she received more oxygen. Thereafter she was taken to St. John’s Hospital in an ambulance, but her recollection of the trip and of arriving at the hospital was hazy, and her mind is, “kind of blank” as to that period. She remained in the hospital for five days, and continued to experience headaches, weakness, dizziness and nausea. At the time she was discharged she was still suffering from the same complaints, although they had improved. The discharge summary in the hospital records as dictated by Dr. J. J. Hammond was “Carboh monoxide intoxication.”

Claimant returned to work at Nixdorff-Krein on the following Monday. She testified that shortly thereafter she felt weak and nauseated, and started to have crying spells for no apparent reason. She would become “real shaky,” start to cry, and be unable to stop. Prior to her exposure to carbon monoxide gas she had never felt weak, dizzy, nauseated, shaky, nor had she experienced such crying spells. About four or six weeks later her employer laid her off, telling her it was for lack of work. According to claimant, she was unemployed for two or three weeks, then worked at Carter Carburetor for five months during the following year, interspersed with lay-offs. Thereafter she began to work as a waitress, at several restaurants successively, but was forced to discontinue her employment at two of them because she became too nervous to work. She was treated by Dr. L. Reuter and Dr. Hammond while in the hospital and continued to see Dr. Reuter for the following six weeks until, becoming dissatisfied with her failure to progress, she changed to Dr. A. J. Reuter, her own doctor. She testified that her headaches and dizziness became worse, she would feel faint and have to lie down, and that she became so nervous that she couldn’t control such attacks. According to claimant, in March 1961, at Dr. Steiner’s office, she received a shot for her tense and nervous condition, and as she started to leave she fainted. Thereafter and until the hearing, in September 1962, she fainted nine or ten times. She testified that at the time of the "hearing she was still experiencing headaches, weakness, dizziness, nausea, and the pain in her chest; that noise depressed her; and that when she becomes depressed she starts to cry and cries constantly. She also related that while she was in the hospital she heard noises, but that that condition had improved and didn’t bother her as much as it had; but that when she walks she sometimes stumbles; and that since the exposure she had lost her balance quite a few times and has caught herself as she started to fall.

Claimant’s husband, Clarence D. Hawkins, testified that since claimant was hospitalized she has constantly complained of headaches and “ * * * acted like she was dopey”; that she “has been crabby with the kids and me too”; and that on three occasions he has seen her come out of fainting spells, and that she “Looked wild.”

Dr. A. J. Steiner, who appeared on behalf of claimant, testified that he first saw her on January 20, 1959. She complained of headaches, dizziness, crying spells, and shortness of breath. He prescribed sedatives. Her complaints continued for over a year, and he increased the medication for her nerves. On January 23, 1961, in his office, claimant had “ * * * a slight generalized convulsion, a petit mal epileptic seizure. She convulsed and gaVe me a busy time for a while.” Asked to describe her appearance he stated: “Her head looked like her eyes were rolled back — she lost consciousness; she jerked her extremities, her tongue protruded from her mouth; her jaw shook also; she did not foam at the mouth and eventually she regained consciousness and was given sedation and I advised her at that time to have an electroencephalogram made.” Dr. Steiner described petit mal epilepsy as a disease that shows itself with complaints of dizziness, headaches, sometimes nausea, loss of breath, and sometimes loss of consciousness of short duration. He distinguished it from the grand seizures, the other type of epilepsy, which are usually hereditary or some serious type of change. Petit mal, he related, is recorded in the medical books as being due to focal areas or small pin point areas of change from normal in the brain tissue. Asked whether carbon monoxide poisoning could cause petit mal epilepsy he replied that it could, and explained that carbon monoxide, produces little areas of hemorrhages in the brain, which leave pinhead scar areas. Dr. Steiner said claimant had been complaining of headaches, weakness and dizziness prior to her seizure but her description of what happened to her had not been clear; and that after the convulsion in his office he pieced together that she had had similar seizures without actual convulsions, but that she did not realize what had occurred.

Following the incident in his office Dr. Steiner changed the medication and continued to treat claimant. He testified that she did not complain of having as frequent attacks, and that she was not as nervous or dizzy. In answer to a long hypothetical question which called for his diagnosis, the doctor stated that in his opinion claimant has a type of petit mal epilepsy with a good deal of nervous tension, which tension may be due to some psychological neuroses; that her condition was disabling; and that, assuming the matters incorporated in the hypothetical question, the disabling condition was causally related to the carbon monoxide inhalation which occurred on January 5, 1959.

Dr. D. Frey Mendelson, a neurologist, who was called to the stand by claimant, testified that he examined her on October 5, 1961. She complained of recurrent headaches, fainting spells, irritability, nervousness, and depressed periods following being overcome by carbon monoxide, and related that since leaving the hospital she had experienced three fainting spells. He made an electroencephalogram, which he interpreted as showing a mild mixed fast and slow dysrhythmia or alteration in normal rhythms. He described an electroencephalogram as a recording of the electrical activity of the brain, and stated that it was a diagnostic aid to doctors used in conjunction with the patient’s history and the findings or physical examination. Dr. Mendelson stated that “ * * * Taken together with her history of loss of consciousness, in my opinion the record was consistent with the diagnosis of a convulsive basis for complaints, but not entirely diagnostic.” The doctor also said that, “Based on the history and examination, it seemed to me likely that Mrs. Hawkins did have a mild seizure disorder. * * * ” The seizure disorder was disabling, he related, contingent upon the frequency and severity of the seizures and the amount of control produced by medication. A lengthy, hypothetical question was propounded to him concluding with the inquiry whether he could state with reasonable medical certainty that the claimant’s seizures were the result of the carbon monoxide intoxication on January 5, 1959. Repeating the essential facts hypothesized, the doctor replied that, “Presuming these are convulsions and presuming she was intoxicated and presuming she had no previous convulsions prior to that intoxication, in my opinion, with a probable degree of reasonable medical certainty, the seizures are related to the intoxication.” He explained that carbon monoxide has an infinity of some 206 times that of oxygen or the hemoglobin molecule; that even a small concentration of carbon monoxide in the air can rapidly bind the hemoglobin in the red blood cells and prevent them from carrying oxygen to the tissues; and that the deprivation of oxygen causes the injury to the central nervous system. Asked whether the deprivation of oxygen from the cells of the central nervous system could result in convulsive disorders he answered in the affirmative. The doctor further testified that nervous or convulsive disorders do not always show up on an electroencephalogram, and that the electroencephalogram is a relatively “crude instrument,” merely another diagnostic tool which doctors use although such tools are not uniformly diagnostic.

The referee found that claimant sustained an accidental injury arising out of and in the course of her employment which resulted in damage to her central nervous system and in a convulsive disorder, and further found that her permanent partial disability was twenty-five per cent of her body as a whole. The Industrial Commission likewise found that claimant had sustained injury to her central nervous system and that she was suffering from a convulsive disorder in the form of petit mal epilepsy, but determined her permanent partial disability of the body as a whole to be twelve and one-half per cent. That finding and determination was approved and affirmed by the circuit court, but it reversed other features of the final award with which we are not concerned.

We have reviewed the claimant's medical evidence at some length because all of the points raised by the appellants relate to that part of the case. The first of these is that Dr. Steiner’s opinion that claimant suffers from petit mal epilepsy caused by the earbon monoxide mtoxication was based on hearsay and incompetent evidence, and is therefore insufficient to sustain the award. As a basis for their contention the appellants point out that on cross-examination Dr. Steiner, after reiterating his opinion that there had been tissue change in the claimant’s brain, stated that he based his opinion both on his own observations and on an electroencephalogram report other than the one from Dr. Mendelson. He was not asked who made the report nor is it otherwise definitely identified in the record. Appellants urge that the report was hearsay, and that since the doctor’s opinion was based on hearsay it was incompetent. The weakness in appellants’ position, however, is that upon becoming apprised that Dr. Steiner’s opinion was in part founded on the report not in evidence they did nothing towards removing it from the record. Assuming for the benefit of appellants that they were not aware that the doctor’s opinion was based in part on hearsay until cross-examination disclosed it, appellants on such disclosure had ample opportunity then to move to have such testimony stricken from the record. They failed to do so and thereby waived their objection to the doctor’s opinion, Jackson v. Curtiss-Wright Airplane Co., 334 Mo. 805, 68 S.W.2d 715; Gerald v. Caterers, Inc., Mo.App., 382 S.W.2d 740. Furthermore, as was stated in one of the cases cited by appellant, Miller v. Ralston Purina Co., 341 Mo. 811, 109 S.W.2d 866, 869: “ * * * And hearsay, if not objected to, will be considered in reaching a conclusion. * * * ” To the same effect see State ex rel. State Highway Commission v. Williams, Mo., 289 S.W.2d 64; Williams v. Cavender, Mo., 378 S.W.2d 537; Hill v. Seaboard Fire & Marine Ins. Co., Mo.App., 374 S.W.2d 606.

Appellants next contend that clinical or laboratory tests are necessary to differentiate between a petit mal epileptic convulsion and a fainting spell, and that Dr. Steiner’s conclusion that claimant had such a convulsion in his office is based upon surmise, speculation and conjecture. There is no evidence in the record that a petit mal epileptic convulsion can be distinguished from a fainting spell only by means of clinical or laboratory tests. The most that appears is Dr. Mendelson’s testimony that a convulsive disorder may sometimes resemble a fainting spell and that at times they are indistinguishable. But at least some of the objective symptoms which the doctor stated would distinguish a convulsion from a fainting spell were previously related by Dr. Steiner as being present when claimant experienced the attack in his office.

Appellants’ final point is that the finding of the Industrial Commission that claimant suffers from petit mal epileptic convulsions was based solely upon the evidence of Dr. Steiner; that Dr. Steiner’s opinion in turn was based upon an unidentified electroencephalogram report; that it was contrary to all of the other such reports introduced in evidence; and that the Commission’s finding was contrary to the overwhelming weight of the evidence. In the first place, Dr. Steiner’s opinion that claimant was suffering from petit mal epilepsy caused by carbon monoxide poisoning was not the only evidence as to claimant’s disability and its causation. Dr. Mendelson also testified to the same effect. And secondly, there was no evidence that an electroencephalogram would in all instances conclusively reveal whether or not the patient examined was suffering from petit mal epilepsy, or that the results it showed were invariably accurate. In fact, the only evidence in the record as to its reliability was that of Dr. Mendelson, the neurologist who used it, who described it as a “* * * relative (ly) crude instrument, it’s merely another diagnostic tool and there are many tests which people in medicine utilize which are not uniformly diagnostic.” In the light of the testimony of Dr. Steiner and Dr. Mendelson we cannot say, as a matter of law, that the Commission’s finding that claimant suffered from petit mal epilepsy caused by carbon monoxide poisoning was contrary to the overwhelming weight of the evidence, even though appellants’ medical evidence conflicted with that of claimants. Where the right to compensation depends upon the acceptance of one of two conflicting medical opinions or theories, as was the case here, the question to be determined is one of fact to be weighed and resolved by the Industrial Commission. Vollmar v. Board of Jewish Education, Mo., 287 S.W.2d 868; Greer v. Missouri State Highway Department, Mo.App., 362 S.W.2d 773.

The judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is affirmed.

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


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    Donald REHM, d/b/a Guaranty Cycle Company, Plaintiff-Respondent, v. Robert A. FISHMAN, Defendant-Appellant, Security Trust Company, Garnishee.
    No. 31840.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.

      Louis M. Kohn, St. Louis, for garnishee.
    Klamen & Grand, Marvin M. Klamen, Clayton, for defendant-appellant.
    Flynn, Parker & Badaracco, Joseph L. Badaracco, St. Louis, for plaintiff-respondent.
   ANDERSON, Judge.

This is an appeal from an order and judgment of the Circuit Court of St. Louis County quashing an execution and garnishment in aid thereof issued at defendant’s request.

It appears from the transcript that on December 29, 1961, plaintiff Donald Rehm brought an action against defendant Robert A. Fishman in the Circuit Court of St. Louis County. In said suit, plaintiff the lessor of certain premises let to defendant, by his petition sought to recover the balance alleged to be due him on bicycles and allied parts placed by plaintiff with defendant on consignment; the balance alleged to be due on the purchase price of bicycles purchased by defendant from plaintiff; and the amount paid by plaintiff on defendant’s behalf for utilities used on the premises; less the reasonable value of the stock of bicycles and allied equipment on the premises as of October 31, 1961, which was applied to defendant’s debt. The balance alleged to be due plaintiff was the sum of $6,854.11, for which amount, plus interest, plaintiff prayed judgment.

On January 29, 1962, plaintiff filed his answer and counterclaim. In said counterclaim, conversion of defendant’s property by plaintiff was alleged, for which judgment was prayed for in the amount of $8,000.00 actual and $20,000.00 punitive damages.

The case came on for trial on January 16, 1963, and at the close of plaintiff’s case the Court directed a verdict for plaintiff on his cause of action for the principal sum of $6,804.11 together with interest thereon from October 31, 1961 at six percent or a total for $7,299.79. The case on the counterclaim was submitted to the jury, and resulted in a verdict of $1,400.00 actual damages and punitive damages in the sum of $3,900, or a total of $5,300.00. This verdict was returned January 18, 1963. Thereafter, there appears in the transcript the following:

“JUDGMENTS
“THEREAFTER and on January 18, 1964, the following judgments were entered of record in the Office of the Circuit Clerk, County of St. Louis (at Clayton), Missouri:
“ ‘Now again at this day come the parties hereto in person and by their respective attorneys and come also the Jurors in this behalf, empaneled and sworn, and the trial of this cause is resumed, progressed and at the close of Plaintiff’s case, plaintiff’s motion for directed verdict hereto filed and submitted herein, having been duly and fully considered is now by the Court hereby sustained. Court finds the issues herein joined in favor of the Plaintiff and against the defendant in the sum of $6,804.11 together with interest thereon from October 31, 1961 at 6% per annum in the sum of $495.68, or a total Judgment for $7299.79.
“ ‘Trial of the cause again resumed on Defendant’s Counterclaim, progressed and concluded, the Jurors aforesaid, upon their oath aforesaid, return into Court the following verdict: DONALD REHM, DOING BUSINESS AS GUARANTY CYCLE COMPANY, Plaintiff vs. ROBERT A. FISHMAN, Defendant, Cause No. 244544, DIVISION NO. 8, VERDICT: “We, the Jury in the above cause, find in favor of the defendant and against the plaintiff on the issues herein joined and assess defendant’s actual damages at the sum of $1,400.00 Dollars. And we further assess the defendant’s punitive damages at the sum of $3,900.00 Dollars, aggregating the sum of $5,300.00 Dollars.” /s/ Kenneth R. Suter, Foreman, Ralph J. Santel, Anthony J. Yanoschek, Vernon Elliott, H. J. Williams, Bern-etta Matheny, Wesley K. Bartlett, N. Constantino, Irene G. Peters, Jessie C. Busch and Elizabeth T. Wahl.
. “ WHEREFORE, it is ordered and adjudged by the Court that said Plaintiff have and recover of said defendant the sum of Seven Thousand Two Hundred Ninety Nine Dollars and 7%oo ($7,299.79) Dollars, together with interest thereon from this date at the rate of six per centum per annum and also the costs herein incurred.
“ ‘Further ordered by the Court that Defendant have and recover of said Plaintiff the sum of Fourteen Hundred and no/100 ($1400.00) Dollars actual damages and Three Thousand Nine Hundred and no/100 ($3900.00) Dollars, punitive damages, or a total sum of Five Thousand Three Hundred and no/100 ($5300.00) Dollars assessed by the Jury as aforesaid, together with interest thereon from this date at the rate of six per centum per annum. Verdict and instructions filed.’ ”

On January 31, 1963, plaintiff filed his motion for judgment or in the alternative for a new trial. On February 2, 1963, defendant filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial.

The above motions were not acted upon by the Court within 90 days of the filing thereof, and therefore, pursuant to Civil Rule 78.04 were deemed overruled at the end of said period. Both parties appealed to this Court. However, these appeals were withdrawn on December 3, 1963.

On January 3, 1964, a request for Execution and Garnishment against Security Trust Co. was filed by defendant, Robert A. Fishman. Thereupon an Execution and Garnishment was issued for the sum of $5,300.00. Thereafter, on January 7, 1964, plaintiff filed his motion to quash said Execution and Garnishment. The grounds alleged in said motion were that since there was a net judgment in favor of plaintiff against defendant in the sum of $1,999.79, it would be inequitable and wholly improper that said Execution and Garnishment be issued. On January 15, 1964, said motion was sustained. From this order defendant has appealed.

Appellant’s first point is that since the trial court had jurisdiction of the subject matter and the parties, its judgment is not subject to collateral attack; that plaintiff’s motion to quash the Execution is a collateral attack on the Court’s judgment as entered and for that reason said judgment must be sustained; therefore, the Court erred in sustaining plaintiff’s motion to quash the defendant’s execution and garnishment.

A judgment is the judicial act of the Court and its entry upon the record is the ministerial act of the Clerk. Lieffring v. Birt, 356 Mo. 1092, 204 S.W.2d 935; J. J. Newberry Co. v. Baker, 239 Mo.App. 1130, 205 S.W.2d 935; Kansas City Pump Co. v. Jones, 126 Mo.App. 536, 104 S.W. 1136; State v. Haney, Mo., 277 S.W.2d 632, 55 A.L.R.2d 717. And the rendition of a judgment is to be distinguished from its entry in the records, 94 Am.Jur. sec. 94, p. 226. In Dunnevant v. Mocksoud, 122 Mo.App. 428, 99 S.W. 515, it was held that in a suit at law for a money judgment where there is but one count in the petition, and but one in a counterclaim filed there can be but one judgment. The Court cited section 726 R.S. 1899, (now Civil Rule 71.06, V.A.M.S.) This same rule of procedure was announced by this Court in Hoffman v. Hiram Lloyd Bldg. & Const. Co., 204 Mo.App. 539, 223 S.W. 813. Also Turney v. Baker, 103 Mo.App. 390, 77 S.W. 479; Caldwell v. Ryan, 210 Mo. 17, 108 S.W. 533, 16 L.R.A.,N.S., 294; Heman v. McNamara, 77 Mo.App. 1; City of St. Louis ex rel. and to Use of Sears v. Clark, Mo.App., 35 S.W.2d 986; State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83.

Thus while there should be separate findings upon plaintiff’s cause of action and upon defendant’s counterclaim, nevertheless one final judgment should be entered, which in the usual practice, recites the respective findings, and concludes with a judgment for the party in whose favor the greater finding was made, and for a sum which represents the excess over that found for his adversary. Any judgment entered by the clerk which fails to reflect this procedure is irregular and not the judgment actually rendered. The only exception to this rule is where the court orders separate trials under Civil Rule 66.02. This exception is not applicable in the case at bar.

Judgment follows immediately upon the rendition of the verdict, and must be in accordance with the rules heretofore stated. The judgment of the Court must be construed with reference to the pleadings and record, and, where on the whole record its scope can be ascertained, it will be upheld in accordance with that record as influenced by the rules of procedure applicable. This rule applies with equal force to the amount of the judgment, State ex rel. Whatley v. Mueller, Mo.App., 288 S.W.2d 405. Likewise, it should be held that the failure of the Clerk to enter the judgment rendered in its complete form, as shown by the entire record, does not subject the judgment which in contemplation of law was rendered, to an interpretation contrary to the rule of law announced by the authorities. To accept appellant’s interpretation that there were two judgments rendered in this case would require a construction contrary to that principle.

It might be argued that before relief from an improper entry could be granted the judgment entry should be corrected nunc pro tunc. However, our Supreme Court has held that such a proceeding is not necessary where the judgment to be entered is simple. Lieffring v. Birt, 356 Mo. 1092, 204 S.W.2d 935, 937. In that case the Court said that it could perceive of no reason why the formality of a nunc pro tunc order should be invoked where the judgment to be entered is simple. The Court further said in support of said ruling that “[a] judgment is the judicial act of the court and its entry upon the record is the ministerial act of the clerk (30 Am.Jur. p. 824, Sec. 10), and in legal contemplation, under Sec. 116, the judgment is rendered upon the verdict when the verdict is returned, and its validity is not affected by the delay of the clerk in entering it on the court record, or by an omission altogether to record it in pursuance of statutory direction. A judgment derives its force from the judicial act of the court in its rendition and not from the ministerial act of the clerk in entering it upon the record.”

In the case at bar it appears from the record that there was a verdict for plaintiff on his cause of action for the sum of $7,299.79. and a verdict for defendant on his counterclaim $5,300.00. In legal contemplation there was therefore a judgment for plaintiff for $1,999.79. It thus appears that defendant had no judgment in his favor, and his execution and garnishment was subject to a motion to quash. Such a motion was not a collateral attack on the judgment rendered. It was in recognition of the judgment actually rendered.

But defendant contends that plaintiff is estopped to move to quash his execution because plaintiff, after defendant’s execution was issued, secured an execution himself for $7,299.79. We hold there is no merit to this contention. Plaintiff could not create by estoppel a judgment that never existed. If he seeks an execution for more than he is entitled to under the judgment actually rendered, defendant may move to quash so much thereof in excess of the plaintiff’s recovery.

We find no error in the record.

The order and judgment appealed from is affirmed.

WOLFE, P. J., and WOODSON OLD-HAM, Special Judge, concur.


author: BRADY, Commissioner.

text:
    Peggy SCHABBING, by her Next Friend, Helen Mayberry, (Plaintiff) Respondent-Appellant, v. William B. SEABAUGH, Executor of the Estate of J. O. Seabaugh, Deceased, (Defendant) Appellant-Respondent.
    Nos. 31962, 31975.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.
    Rehearing Denied Oct. 20, 1965.

      Vogel & Frye, Cape Girardeau, for plaintiff-respondent-defendant.
    Jackson, Thomasson & Dickerson, Cape Girardeau, for defendant-appellant-respondent.
   BRADY, Commissioner.

Jury trial in this action for wrongful death resulted in a verdict for the plaintiff, wife of the deceased, in the amount of $10,000.00. The trial court sustained the defendant’s motion for judgment in accordance with his motion for a directed verdict and entered judgment for the defendant with an alternative order granting him a new trial should the ruling on the motion for judgment be held erroneous. Among the reasons given by the trial court to support its alternative order was that the verdict was against the weight of the credible evidence. It is well settled that a grant of a new trial will be sustained if any ground assigned in the motion for new trial will sustain it, City of Albany ex rel. Crane Co. v. Ace Dewey, Inc., Mo.App., 353 S.W.2d 807, and that when the trial court grants a new trial on the ground that the verdict was against the weight of the credible evidence that order is not for our review. Zahner Mfg. Co. v. Harnish, 224 Mo.App. 870, 24 S.W.2d 641. The result is that the defendant is assured of, at the least, a new trial in this cause. The only issue left for this court deals with the trial court’s ruling of the defendant’s motion for judgment in accordance with his motion for a directed verdict.

We must first digress to dispose of an appeal filed by the defendant. The notice of appeal was filed before the trial court entered its order sustaining defendant’s motion for judgment in accordance with his motion for a directed verdict with the alternative grant of a new trial. After the trial court took that action the defendant’s appeal was abandoned as he could not appeal from a judgment in his favor. The parties thereafter proceeded as if the defendant’s notice of appeal had never been filed. However, it was filed and we must dispose of it. That appeal should be dismissed as the defendant was not aggrieved by the ultimate judgment entered by the court. We will proceed to deal with the issues raised by the plaintiff’s appeal.

Sonny Schabbing was 21 years old at the date of his death in 1961. He had lived in the City of Cape Girardeau all of his life. He had never lived on a farm and had no experience with farm tractors. The Schabbings rented a house from Seabaugh which was located on a farm Seabaugh owned. Shortly afterwards Seabaugh suggested that Sonny could help him with farm work when he was not working at his regular employment at the Superior Electric Company factory in Cape Girardeau. On that occasion Sonny told Seabaugh that he had never driven a tractor and Seabaugh replied that perhaps he could learn to operate one. Nothing further was said about the matter until the day of Sonny’s death. On ■that day Sonny was home as a result of a temporary layoff at his regular employment. Seabaugh came by and asked him to help mow a field. He had two tractors brought to the house and showed Sonny how to operate one of them. Seabaugh then got on one tractor and Sonny on the other and they started off to the field. When they reached it Seabaugh drove once around the field with the mower in position. Then Sonny drove once around the field with Seabaugh on the tractor with him. Seabaugh then left Sonny alone in the field and did not return until late that afternoon. Upon his return he found Sonny on the tractor. He was in a scissoring position with his right foot caught under the two brake pedals located on the right side of the tractor and his left foot under the left tractor tire. He was split open at the rectum, his femoral artery pulled apart and death had occurred almost instantaneously. He had made about seventeen rounds of the field.

The tractor involved was a 1954 Ford four-wheel model. The clutch and gear shift operation is generally similar to that of an automobile although the positions of the shift lever in the different speeds is different. It had two brake pedals on the right side, one controlling each of the rear wheels. The tractor was found to be in good operating condition.

The field in which this accident occurred was generally described in the evidence as being hilly and having holes in it. However, it was also described as having no deep holes or gullies and being an “average pasture field” for that county. Sonny had never been in the field before. There was evidence from which the jury could find that the tractor hit a hole and then veered to the west and continued for approximately twenty-five feet before coming to a stop. There was no evidence the tractor had ever overturned.

The plaintiff submitted her case to the jury by instruction No. 1 which in its pertinent parts reads as follows: “ * * * that J. O. Seabaugh left Deceased alone to operate said tractor without supervision; that deceased did not have sufficient skill, information or knowledge to safely operate said machinery at said place without supervision and that J. O. Seabaugh knew, or by the exercise of reasonable care, should have known, of such lack of skill, information or knowledge, if so; and that in so doing, J. O. Seabaugh was negligent; and that Deceased died as a result of said negligence, then your verdict will be for Plaintiff.”

It is first necessary to ascertain what negligence was submitted by plaintiff’s verdict directing instruction. That instruction required the jury to find that Seabaugh left Sonny to operate the tractor “without supervision.” It then hypothesizes that Sonny did not have the skill to operate the tractor “without supervision” and that Seabaugh knew or should have known “of such lack of skill.” The use of the word “such” could only cause a jury of reasonable men and women to ask themselves what lack of skill was referred to and to conclude that “such lack of skill” meant the lack of skill which would allow him to safely operator this tractor in that field “without supervision” as stated earlier in the instruction. The instruction concludes by submitting “ * * * that in so doing, J. O. Seabaugh was negligent.” This again can only refer back to the submission of a lack of supervision. Given a fair reading instruction No. 1 submits that Seabaugh’s negligence was in leaving Sonny to operate this tractor “without supervision.”

The plaintiff defines “supervision” as “to oversee for direction.” Then she defines “direction” as “guidance, authoritative instruction” and proceeds to define “direct” as “to give guidance to; to give an order or instruction to” and “guide” as “to regulate and manage, direct, order, govern, hence to superintend the training of, instruct.” From these definitions she argues that supervision is synonymous with instruction and training. We cannot agree that a jury composed of average citizens would interpret the word “supervision” to be synonymous with instruction and training. We must take the word “supervision” in its ordinary meaning to a jury composed of average men and women. Doing so we believe “without supervision” must be read in the light of the definition of supervision given by plaintiff; that is, “to oversee for direction.” As applied to the instant case that phrase was used and the jury must have interpreted it in the sense of one who failed to stay with Sonny in the field and failed to oversee and to direct his operation of the tractor and the mowing of the field. It follows that the instant case is not analogous to Post v. Chicago, B & Q R Co., 121 Mo.App. 562, 97 S.W. 233 nor to Braden v. Chicago, B & Q R Co., 174 Mo.App. 584, 161 S.W. 279, nor to Schwartz v. Kansas City Southern Ry. Co., 365 Mo. 17, 275 S.W.2d 236. In each of those cases the plaintiff’s theory was that the defendant failed to furnish him with a safe place in which to work.

The defendant contends the plaintiff failed to show the causal connection between the defendant’s submitted negligence and Sonny’s death. It is too well established to require exhaustive citation of authority that the issue of proximate cause is not for the jury where the evidence connecting the injury with the submitted negligence amounts to mere speculation or conjecture. Bauman v. Conrad, Mo.App., 342 S.W.2d 284, l. c. 288. It is equally established that while negligence may be proved by circumstantial evidence, the circumstances must give rise to an inference of negligence which reasonably follows without guesswork or speculation. Williams v. Cavender, Mo., 378 S.W.2d 537, l. c. 541. In ruling upon this issue we will assume, arguendo, that Seabaugh owed a duty of supervision to Sonny.

The defendant contends that “ * * It is certainly permissible to infer from the facts that death came from such negligence —that an experienced and trained operator (one who had had sufficient supervision) would have been able to avoid the hole; would have been able to keep his seat and his balance upon striking the hole; and would have avoided catching his right foot between or under the two brake pedals * * *» As is apparent from this excerpt and from the whole of defendant’s brief, the plaintiff’s theory was that it was the hitting of this hole that caused Sonny to be bounced around on the tractor to get his foot caught and his death. Plaintiff also contends the hole was “hidden by the grass.” Giving the plaintiff every reasonable benefit of such arguments, we cannot agree that she has shown a causal connection. How could supervision have resulted in plaintiff avoiding this hidden hole? Let us assume Seabaugh had provided supervision by staying in the field, where could he have so placed himself as to observe a hidden hole? Whether Seabaugh stood under a tree at the edge of the field or walked along beside the tractor, the jury could not, without resorting to the guesswork and speculation forbidden to them as well as to us, find that by providing such supervision Seabaugh could have discovered a hole which, under plaintiff’s own theory, was hidden from view. Even if we carry the idea of such supervision to its ultimate extension, even if Seabaugh had ridden around the field on the tractor with Sonny, it would require guesswork and speculation to say that he could see a hole that was hidden from Sonny’s view as he rode on the same tractor. We hold that the plaintiff did not make a submissible case for the reason that she failed to show a causal connection between the negligence charged and the accident which resulted in Sonny’s death.

The defendant’s appeal should be dismissed. The issue raised by the plaintiff’s appeal should be found against her and the trial court’s judgment affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The defendant’s appeal is dismissed. The judgment is affirmed.

WOLFE, P. J., RUDDY, J., and J. MORGAN DONELSON, Special Judge, concur.

ANDERSON, J., not participating.


author: JAMES D. CLEMENS, Special Judge.

text:
    JACKSON SAVINGS AND LOAN ASSOCIATION, a Corporation, Plaintiff, v. Dale SEABAUGH et al., Defendants, Lucy Seabaugh, Defendant-Respondent, Everett L. Seabaugh, Defendant-Appellant.
    No. 31966.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.

      Paul A. Mueller, Jr., Jackson, for plaintiff.
    Leo J. Rozier, Perryville, Limbaugh, Limbaugh & Russell, Cape Girardeau, for defendant-respondent.
    L. C. Combe, Greenville, Ill., for defendant-appellant.
   JAMES D. CLEMENS, Special Judge.

This case began as an equitable action in interpleader over a savings and loan account of $3,269.48. Plaintiff paid the money into court and was discharged. A family fight ensued. Appellant and respondent each claimed to be the surviving joint tenant of the deceased co-depositor. Respondent Lucy Seabaugh prevailed and this appeal followed. The issue: Are the parties’ rights to the deposit as between themselves, to be determined by formal requirements governing the method of transferring such accounts ?

The fund now in dispute began when M. W. Seabaugh, now deceased, deposited $1,500 of his own funds with the plaintiff savings and loan association. Soon after, M. W. Seabaugh added more of his funds. There have been no withdrawals, and dividends accumulated. The respondent Lucy Seabaugh was a daughter-in-law, and the appellant Everett L. Seabaugh was one of the children of M. W. Seabaugh. When M. W. Seabaugh opened the account in 1954, at his direction the plaintiff issued its savings certificate No. 3149 to “M. W. Seabaugh or Lucy Seabaugh.” This was without her knowledge. In 1956 the account was changed to read “M. W. Seabaugh or Evert L. Seabaugh.” In 1958 the account was again changed by adding the words “as Joint Tenants with right of survivorship and not as Tenants in Common.” The details of these changes and other pertinent facts will be given later.

Respondent Lucy Seabaugh pleaded that the decedent always intended that on his death the fund would go to her, for distribution by her among his heirs; that the change of the account to Everett L. Sea-baugh was at his insistence by undue influence over his father who then lacked functional mental capacity. She later pleaded that the changes in the account to Everett Seabaugh were ineffective because not made in compliance with § 369.170 V.A.M.S. and § 17 of plaintiff’s by-laws. Appellant Everett Seabaugh denied Lucy Seabaugh’s allegations and pleaded that it was his father’s intention to create a joint account with Everett.

The case came on for trial on the issues raised between Lucy and Everett. He introduced evidence to support his allegations; she offered none. From this we find these further facts: M. W. Seabaugh lived in rotation with his many relatives. On March 22, 1954, without the knowledge of Lucy or other heirs, he opened the savings account with plaintiff. The names “M. W. Seabaugh or Lucy Seabaugh” were entered on plaintiff’s certificate and certificate register book, and also on its ledger sheet and a pass-book. The certificate and pass-book were handed over to Mr. Seabaugh, and the certificate register book and ledger sheet were lodged in the plaintiff’s office. On August 24, 1956, M. W. Seabaugh asked plaintiff’s manager in charge of its office, a Mr. Williams, to meet him at a bank near plaintiff’s upstairs office. Mr. Williams was a director of plaintiff association, and its secretary and treasurer. Mr. Seabaugh then handed over his certificate and pass-book and told Mr. Williams he wanted the account changed from Lucy to Everett as his co-depositor. Mr. Williams struck out Lucy’s name on both Mr. Seabaugh’s certificate and pass-book, initialed and dated the changes, and gave both records back to him. Back at plaintiff’s office, similar changes were then made on the plaintiff’s ledger sheet and on its certificate register book. This was in accord with plaintiff’s customary procedure in making changes in existing accounts. In May of 1958 M. W. Seabaugh became dissatisfied with his life with relatives in Missouri and asked Everett if he could move in with him at Everett’s home in Illinois. The request was granted, and Mr. Sea-baugh lived with Everett until his death in 1960. On May 31, 1958, two or three days before leaving Missouri for Everett’s home, M. W. Seabaugh went to plaintiff’s office and asked Mr. Williams to “stamp the account” with a joint-tenant survivor-ship clause. The plaintiff’s ledger sheet and certificate register book, and M. W. Seabaugh’s certificate and pass-book, were then each impressed with a rubber stamp beneath “M. W. Seabaugh or Evert L. Seabaugh,” adding the words “as Joint Tenants with right of Survivorship and not as Tenants in Common.” The certificate and pass-book were then handed back to M. W. Seabaugh. When Mr. Seabaugh arrived at Everett’s home in Illinois a few days later he told Everett and family friends of his dissatisfaction with the care he had received in Missouri. He told them he wanted to spend the rest of his days with Everett and that he wanted Everett to have all he had, and he gave Everett the certificate and pass-book. As said, Lucy Sea-baugh offered no evidence to contradict this evidence, and we find it credible. From all this we conclude that M. W. Seabaugh intended to make Everett a joint-tenant so that upon his death Everett, and not Lucy, would be the sole owner of the account.

The account, as finally carried on plaintiff’s books, was in the statutory form of a joint tenancy between M. W. Seabaugh and Everett L. Seabaugh. § 369.150 V.A. M.S. To the contrary, Lucy never was a joint tenant with M. W. Seabaugh. In the absence of evidence of an intention by M. W. Seabaugh to create a joint tenancy with Lucy, none was created by the mere use of the word “or” linking their names in the original deposit, and M. W. Seabaugh’s right to change the account is not and cannot be challenged. Longacre v. Knowles, Mo., 333 S.W.2d 67, l. c. 70. If the change in the account by M. W. Seabaugh to the final form was effective, a joint account was created, and upon M. W. Seabaugh’s death Everett L. Seabaugh became the sole owner. Jenkins v. Meyer, Mo., 380 S.W.2d 315, l. c. 320.

The trial court based its judgment solely on the ground that there was no valid transfer of ownership of the account in compliance with § 369.170 V.A.M.S., and Section 17 of plaintiff’s by-laws. The bylaw was never introduced in evidence, but it is so similar to the cited statute that this appeal can be decided without resolving Lucy Seabaugh’s contention that the by-law should be considered on this appeal.

The statute on which Lucy bases her claim is § 369.170(1) Y.A.M.S. With our emphasis added, it says: “Accounts shall be transferable only upon the books of the association and upon proper application by the transferee and the acceptance of the transferee as a member upon terms approved- by the board of directors.” The plaintiff’s by-law 17, proffered here but not below, would further require that accounts be transferable upon the books of the association only upon surrender of certificates properly endorsed. Both the statute and by-law go on to provide that the association may treat the account holder of record as the true owner, without being bound by mere notice of an adverse claim. A comparable statute, § 362.370 V.A.M.S., applies to bank deposits. Both the statute and bylaw seem to us to be drawn to fit a transaction where a sole depositor assigns his interest in his deposit to a third person, who then takes the place of the original depositor. It is not clear that the statute or by-law were intended to apply to changes in co-depositors.

Bearing in mind our finding that it was M. W. Seabaugh’s intent to create a joint tenancy with Everett, we now further consider his actions tending to formally deprive Lucy of her original inchoate interest in the account and to bestow on Everett the rights of a joint tenant. We consider whether M. W. Seabaugh substantially complied with the cited statute and the by-law. The plaintiff had never used written application for membership or transfer, and M. W. Seabaugh’s oral request to change the account was first complied with by plaintiff’s officer in charge, Mr. Williams, by deleting Lucy’s name and subscribing Everett’s name on both the certificate and pass-book and by initialing and dating the changes. It was shown that Mr. Williams had authority from the plaintiff’s directors, of whom he was one, to accept members at his own discretion. Following this “application” by M. W. Seabaugh and “acceptance” by plaintiff, the ledger sheet and stock certificate register were also amended to conform. Thus, the statute was fully if not artfully complied with.

As to the further by-law requirement that accounts were transferable upon the association’s books only upon surrender of the certificates properly endorsed: the transfer was in fact entered on the association’s books when M. W. Seabaugh surrendered the certificate to Mr. Williams. The act of prior endorsement by M. W. Seabaugh was for the association’s protection, and was not binding on M. W. Seabaugh. See Baden Bank of St. Louis v. Trapp, Mo.App., 180 S.W.2d 755, l. c. 758; 10 Am.Jur.2d, Banks, § 348, n. 5; and 9 C.J.S. Banks and Banking § 286, n. 98, as to comparable statutory requirements. M. W. Seabaugh had clearly manifested to the plaintiff his desire to create a joint account with Everett. The plaintiff association just as clearly manifested its acceptance of and its compliance with that request. The plaintiff association may well have had the right to decline to change the deposit without literal compliance with the terms of the quoted statute and by-law. But, this was a right which it could and did waive by making the requested changes in its own manner. Blackshaw v. French, Mo.App., 45 S.W.2d 916, l. c. 918; Whitsett v. People’s Nat. Bank, 138 Mo.App. 81, 119 S.W. 999, l. c. 1003; In re Cooper County State Bank, Mo.App., 67 S.W.2d 109, l. c. 113. We hold that the changes made in the account were in substantial if not literal compliance with the statute and the by-law, and in equity those changes created a joint account with Everett L. Seabaugh.

Respondent says, and we agree, that this is a case of first impression in Missouri. She cites two out-of-state cases. Pequannock, etc., Ass’n v. Pritchard, 134 N.J.Eq. 563, 36 A.2d 755, concerned an action between a depositor and the association and upheld a statutory requirement as to formality of transfer. That court acknowledged that a different result might have been reached if the action had been one between two depositors, as here. Hornaman v. Vaughan, 191 Kan. 42, 379 P. 2d 257, concerned a contest between stockholders of a savings and loan association as to voting rights, rather than as to their rights as depositors, as here. Neither case is considered in point.

We have dealt at length with the purely legal aspects of the changes in the account because that is the basis of Lucy’s contention and the basis of the lower court’s judgment. However, it must be noted that we are not here called on to determine rights as between the plaintiff association and its depositors. The action between the claimants is one in equity and they each so consider it. Taylor v. Perkins, 171 Mo.App. 246, 157 S.W. 122, L. c. 123; Borchers v. Barckers, 158 Mo.App. 267, 138 S.W. 555, L. c. 557. In such a case between rival claimants to a fund paid into court by the disinterested stake holder, “The issue is a simple one, to-wit: Who is the rightful owner of the said certificate * * * ? ” Harris Banking Co. v. Miller, 190 Mo. 640, 89 S.W. 629, L. c. 633, 1 L.R.A.,N.S., 790. The whole case is before us both on the law and evidence. Commonwealth Trust Co. v. DuMontimer, 193 Mo.App. 290, 183 S.W. 1137, L. c. 1139. We must reach our own conclusion and render such judgment as we decide should have been rendered in equity by the trial court. Anderson v. Curls, Mo.App., 309 S.W.2d 692, L. c. 694; Thompson v. Allain, Mo.App., 377 S.W.2d 465, l. c. 466.

We are not blind to the maxim that equity follows the law. Judge Cardozo has said in effect that a chancellor in equity is not a knight-errant roaming at will in search of his own ideals of virtue and what is right between man and man. Brawner v. Brawner, Mo., 327 S.W.2d 808, l. c. 812. And see Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, l. c. 931; and Milgram v. Jiffy Equipment Co., 362 Mo. 1194, 247 S.W.2d 668, l. c. 675, 30 A.L.R.2d 925. But the maxim does have its limitations. It restrains a court of equity only from destroying those legal rights which are plain, positive and clearly defined. Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, l. c. 671, 18 A.L.R.2d 1355; Aetna Ins. Co. v. O’Malley, 342 Mo. 800, 118 S.W.2d 3, l. c. 10. For the reasons we have given above, we do not believe that respondent Lucy Seabaugh had any such plain, positive and clearly defined legal right to the deposit, either under the statute or the by-law. So we are not hindered by the maxim. Instead, we follow its corollary, colorfully stated by our Supreme Court In Holloway v. Jones, Mo., 246 S.W. 587, l. c. 591: “ * * * As the archer bends his bow that he may send the arrow straight to the mark, so equity bends the letter of the law to accomplish the object of its enactment. * * * ” So, we must reach our decision within the framework of other equitable principles.

In 9 C.J.S. Banks and Banking § 997, p. 1420, it is said: “In equity no particular form is essential to the validity of an assignment of a savings bank account, it being sufficient if there is an intentional transfer or making over of the account, conferring a complete and present right on the assignee. * * * ” This meshes with our general principles of equity.

In sum, Lucy Seabaugh’s claim is based on a matter of form, while Everett’s claim is based on a matter of true intent and substance. Because both parties ask us to do equity we must answer that equity disregards the form of a transaction and gives effect to the intention of the parties. Kimberly v. Aldridge, Mo.App., 357 S.W.2d 558, l. c. 562. As said by Judge Conkling in Taylor v. Baldwin, 362 Mo. 1224, 247 S.W.2d 741, l. c. 755: “* * * Courts of equity take no account of mere inaccuracies of expression or inappropriate choice of words. Equity pierces the form and takes cognizance of substance *

So considering the case, we cannot agree with the conclusion reached in the trial court. We find that Everett, not Lucy, is in equity entitled to the fund. The cause should be reversed, with directions to enter judgment for defendant, Everett L. Sea-baugh. It is so ordered.

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

WOLFE, J., not participating.


author: DOUGLAS W. GREENE, Special Judge.

text:
    Norman GAVAN, Employee, Respondent, v. H. D. TOUSLEY COMPANY, Inc., Employer, and Employers Mutual Liability Insurance Company, Insurer, Appellants.
    No. 32018.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.
    Edward C. Friedewald, St. Louis, for employer and insurer, appellants.
    John J. Relies and Ralph Schnebelen, Clayton, for employee, respondent.
   DOUGLAS W. GREENE, Special Judge.

This is an appeal by the employer and insurer, hereinafter called appellants, from a judgment of the Circuit Court of St. Louis County reversing an award of the Industrial Commission of Missouri, denying compensation to claimant-respondent, who had filed for additional compensation, alleging a change in condition, pursuant to Section 287.470 RSMo 1959, V.A.M.S.

Respondent’s initial claim was based on an injury to his back arising out of an accident that occurred October 16, 1958, in the course and scope of his employment. Shortly thereafter, he came under the care of Dr. Harold Walters for treatment of his back. Respondent stated that he felt severe pain in the low back towards the left leg at the time of the accident. He continued working, but could not straighten up because of pain for two weeks following the occurrence. He told Dr. Walters that he had pain in the left hip, buttock, and groin. Dr. Walters found tenderness over the left sacroiliac joint, and mid-left buttock area. In 1959, he found straight leg raising caused pain at 75° of horizontal. His diagnosis was strain of the left sacroiliac with possible tearing of ligaments. Dr. Hampton examined respondent for employer in January, 1959, and reported tenderness in the L 4-5 region, but gave no disability rating. As a result of a hearing, the referee, on November 30, 1959, entered an award, finding that respondent sustained an accidental injury on October 16, 1958, arising out of and in the course of his employment, resulting in 5% permanent partial disability of his body as a whole, referable to his left sacroiliac region. This award was affirmed by the Commission, and on appeal by the Circuit Court. In 1961, the respondent filed a motion for additional compensation based upon a change in condition under Section 287.470 RSMo 1959, V.A.M.S. A hearing was held before the Commission on July 29, 1963, at which time the following evidence was introduced.

After the original award, the pain in respondent’s back increased. In 1960, he lost about 30 days work because of increased pain in his back. This was the same area that had previously bothered him. In 1961, prior to June 17 of that year, he only worked slightly over one hundred hours. This loss of work was due to increased pain in his back and hip. The pain was in the same area, but it increased in severity. He finally went to Dr. Walters who had examined and treated him in 1958 and 1959. He was examined by Dr. Walters on June 17, 1961. Dr. Walters found tenderness in the soft tissue in the lower part of his back at the region of the first sacral vertebra. The motion of his back was limited to thirty degrees of flexion, and about five degrees of lateral bending and extension. The left ankle jerk was found to be more sluggish than the right. Respondent complained that he was having recurring severe low back pain. The sluggish left ankle jerk and limitation of motion had not existed on previous examinations.

At that time, June 17, 1961, Dr. Walters referred respondent to Dr. Jacques Schaerer, a neurosurgeon. Dr. Schaerer performed a myelogram on respondent on July 3, 1961. His examination of respondent revealed that he walked with a slight limp, with a list to the left; that his ability to bend forward was limited; there was pain going into his left buttock on pressure, and diminished sensation in his left leg. The myelogram findings were compatible with a herniated disc between the fourth and fifth lumbar spaces. Surgery was performed on July 5, 1961. His recovery from surgery for removal of the disc was uneventful and, after discharge, he was seen again by Dr. Schaerer on February 19, 1963. Respondent was walking without limping, could touch his ankles with his fingertips where he could previously touch his knees, his reflexes were normal and he had no areas of diminished sensation. He did have discomfort when he stood up straight, and was unable to do heavy work like shoveling or pulling cement with a straight edge. Dr. Schaerer was of the opinion that respondent’s permanent partial disability after the accident was twenty-five percent of the man as a whole. The charges for the operation, including myelogram, were $900.00, and such charges were reasonable. Dr. Walters saw respondent again in -1963. He had a well-healed scar in the middle of his hack along his spine. X-rays revealed that a ~,disc had been removed between the fourth . and fifth lumbar space. There was no muscle spasm, and the motion of his back was within normal limits. Dr. Walters rated respondent’s permanent partial disability at that time as twenty percent of the man as a whole. In Dr. Walters’ opinion, respondent was permanently -unable to do heavy work, or to engage in twisting or turning activities. Respondent had no injuries to his back between the time of the original accident, October 16, 1958, and the date of the hearing on change in condition, which was held July 29, 1963. None of the foregoing testimony was disputed.

In addition, in answer to a hypothetical question, assuming the relevant facts in evidence as heretofore stated as true, Dr. Walters was of the opinion that respondent’s disability immediately before the operation was a result of the accidental injury of October 16, 1958, and that there was a direct causal relationship between his disability at the time of the hearing on change of condition and the 1958 accident. Dr. Walters found no objective findings of disc involvement in 1958 or 1959, but did in 1961. He testified the left sacroiliac region was approximately two inches from the spot where the operation took place. Dr. Schaerer, in answer to a hypothetical question assuming the relevant facts previously stated, was of the opinion that the condition for which he operated on respondent was the direct result of the October 1958 injury; that pain in the left sacroiliac area, and over the left hip, was directly connected with the disc, and the proof of the matter was when the disc was removed, the pain in the sacroiliac area disappeared. He further stated that the degeneration of the disc was progressive, which was compatible with respondent’s history of complaints of pain that grew steadily worse. Appellants’ witnesses were two doctors, neither of whom had ever seen the respondent. Dr. A. H. Diehr testified, in answer to a hypothetical question, that, in his opinion, the herniated disc found in 1961 had no connection with the 1958 injury. The hypothetical question gave no assumed facts on respondent’s complaints and condition in 1959, 1960, or until May 7, 1961. He also stated that pain is associated with a disc injury; that constant recurrence of low back pain might be a symptom of possible disc injury; that straight leg raising tests being positive at seventy five degrees of horizontal could be a symptom of disc injury, as could pain in the left hip. Appellants’ other witness was Dr. Herbert E. Rosenbaum. Dr. Rosenbaum stated he could not say when the herniated disc occurred. He stated that the herniation was an oozing of a gelatinous substance, called nucleus pul-posus from the center of the disc through a .rent in the fibrous covering of the disc, and if it impinged on a pain sensitive structure such as the root of a nerve, it caused pain. He was given no facts about respondent’s condition in 1959, 1960, or until May, 1961.

On the basis of the foregoing evidence, the Commission, on August 30, .1963, entered an order that respondent’s application for additional compensation on the ground of a change of condition be denied. The Commission stated that while they found and believed that the herniated disc may well have been caused by the accident, there was no evidence to support such a finding, and to find a causal connection between the accident and the herniated disc would require resorting to conjecture and speculation. Respondent appealed, and on June 24, 1964, the Circuit Court of St. Louis County entered its judgment reversing the Industrial Commission and remanding the cause for further hearing, for the reason that there was not sufficient competent evidence in the record to warrant the making of the award denying respondent’s application for additional compensation. An appeal from that judgment was duly filed in this court.

The only real issues in this case are, did the condition of the respondent materially change for the worse from November 30, 1959, the date of the original award, and July 29, 1963, the date of the hearing on change of condition, and, if so, was there a causal connection between such change and the 1958 accident. In deciding these questions, this court is required to view the evidence, and the reasonable inferences therefrom, in the light most favorable to the award, and to set the Commission’s findings aside only in the event they are not supported by competent and substantial evidence upon the whole record. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647.

In this case, however, there is no competent and substantial evidence upon which the Commission could have based its award. Respondent’s pain in the left sacroiliac region increased in 1960 and 1961 until he was totally disabled prior to his operation. The operation stopped the pain, and enabled him to resume employment, but left him with residual permanent disability, estimated at twenty to twenty-five percent of the man as a whole. There is no dispute about those facts. All of the evidence in this case indicates that respondent’s condition did definitely change for the worse from the day of the original award to the date of the operation. This would make mandatory an additional award to respondent for a change in condition, if a causal connection could be proven between the change in condition for the worse, and the original accident. There is nothing in the record to show even a possibility of any intervening injury to which respondent’s change in condition could be attributed, such as was present in Welker v. MFA Central Co-Operative, Mo.App., 380 S.W.2d 481.

The only possible issue left to consider is whether or not there was a causal connection between respondent’s condition on July 29, 1963, the date of the hearing on change in condition, and the original accident. The testimony of respondent, of Dr. Walters, who was his treating physician after his accident and who saw him several times over a three-year period, and of Dr. Schaerer, who performed the operation, all so indicated. There was coupled with this a most significant fact that was not disputed, which was, that after the disc operation, the symptoms of pain ceased. On the other hand, Dr. Diehr, who had never seen the respondent, and, who, from the record, had never ever seen any reports, hospital records, depositions, or any other type of evidence or findings, stated that, in his opinion, the herniated disc had no connection with the 1958 injury. On cross examination, he first said the disc herniated in 1961, then said 1960, and finally, that he did not know when the disc herniated. Dr. Rosenbaum, who also had never seen the respondent, said he could not say when the disc herniated, other than at some time in life, but that the symptoms developed prior to the myelogram. He also stated that respondent had evidence suggesting a disc without neurological involvement. He testified he would not exclude the traumatic incident of 1958 as the one which gave rise to the herniated disc.

While it is true, that where the issue is chiefly a medical question, the testimony of medical experts amounts to substantial and competent evidence, Coleman v. Brown Strauss Corp., Mo.App., 210 S.W.2d 537, the testimony of appellants’ doctors in this regard falls far short of the minimum standard required by law. In fact, their testimony, when viewed as a whole, and after they were given additional undisputed facts of respondent’s condition in 1958, 1959, and 1960, corroborated the findings of respondent’s doctors that the 1958 injury eventually caused the herniated disc.

Dr. Diehr’s opinion that the disc injury had no connection with the original accident was based on his answer to a hypothetical question posed by appellants’ counsel, which question did not even contain the basic undisputed facts of respondent’s pain, complaints, loss of work due to pain, and gradual deterioration of respondent’s condition in December of 1959, all of 1960, and the period of time before May of 1961.

The hypothetical question asked Dr. Rosenbaum was of the same nature.

Facts upon which an expert’s opinion is based, must measure up to legal requirements of substantiality and probative force, and the question of whether an opinion of an expert is based on and supported by sufficient facts or evidence to sustain it is a question of law for the appellate court. Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541.

If the expert witness does not have personal knowledge of such facts, as was the case with Dr. Diehr and Dr. Rosenbaum, they must be asked, by the use of hypothetical questions, to assume the truth of them. Harp v. Illinois Central Railroad Co., Mo., 370 S.W.2d 387.

While it is true that a hypothetical question does not necessarily have to' include all of the material facts in evidence, it must fairly hypothesize relevant facts in evidence, and fairly present the questioner’s theory. Hunter v. St. Louis Southwestern Ry. Co., Mo., 315 S.W.2d 689.

That was not the case here, and appellants’ witnesses’ answers to the hypothetical questions referred to herein could only have been based on speculation and conjecture. A verdict, or award, based on such evidence, cannot stand. We hold that the action of the trial court, in reversing the order of the Industrial Commission and remanding the cause for further hearing, for the reason that there was not sufficient and competent evidence in the record to warrant the making of their award, denying employee’s application for additional compensation, on the ground of a change of condition, was proper.

The judgment is affirmed.

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


text:
    Victor TAKE, Plaintiff-Respondent, v. Evelyn ORTH, Defendant-Appellant.
    No. 31641.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.

      Carter, Bull, Baer, Presberg, Lee & Stanard, William K. Stanard II, Richard O. Funsch, St. Louis, for defendant-appellant.
    Gregg W. Keegan, John E. Bardgett, St. Louis, for plaintiff-respondent.
   DOUGLAS W. GREENE, Special Judge.

Plaintiff, hereinafter referred to as respondent, filed suit in the Circuit Court of the City of St. Louis, Missouri, seeking recovery in the amount of $5,000 for damages he allegedly sustained as a result of his wife being hit on the head by a golf ball. The case was tried before a jury, which returned a verdict for defendant, hereinafter referred to as appellant. The trial court, on motion, granted a new trial. From the order granting such new trial, appellant has filed her appeal.

The accident which gave rise to this litigation occurred on April 26, 1961. Respondent’s evidence was that Mary Jane Take, the wife of respondent, was playing golf at the Westborough Country Club in a twosome. Her partner was a Mrs. Chipps. Mrs. Take and Mrs. Chipps were playing hole number seventeen. It was a clear and bright day. To play the seventeenth hole, you drive across a creek and up a hill south towards the green. Immediately west of the seventeenth hole is the fourteenth hole. The fourteenth hole runs from south to the north. Immediately west of the fourteenth hole is out of bounds.

Mrs. Take teed off on seventeen, and had an excellent drive, which went across the creek and halfway up the hill. Mrs. Chipps wasn’t so fortunate, and hit her ball in the creek, a by no means uncommon occurrence for golfers of both sexes who do not make their living at the game, as is the case here. Mrs. Take went with Mrs. Chipps to look for the ball. Mrs. Take walked along the bank on the north side of the creek in a westerly direction to a point west of a large tree, which was located in the rough on the east edge of the fourteenth fairway, where she stopped. They could not find the ball. Another group of ladies were on the seventeenth tee waiting to tee off, so Mrs. Take and Mrs. Chipps moved their golf cart and parked it under the tree, and motioned to the group on the seventeenth tee to play through. Mrs. Take was facing north, with her back to the fourteenth tee. People were on the fourteenth green finishing play on that hole. Mrs. Orth, the appellant, and her companion, Mrs. Rinehart, were on the fourteenth tee waiting to shoot. The players on the fourteenth green either waved to Mrs. Orth to shoot, or else were leaving the green. Mrs. Take saw Mrs. Orth and her companion approach the fourteenth tee before she turned to watch the players teeing off on seventeen, but didn’t think they would shoot while she was standing within range. Fourteen is a par three hole with a distance of only one hundred eighty-three yards.

Mrs. Orth teed up her ball and drove it toward the fourteenth green. She stated she did not see Mrs. Take before she shot. It was a good drive. After Mrs. Orth shot, she looked up, saw Mrs. Take, and screamed “fore,” which is the call that golfers use to warn other persons on the course. Mrs. Take didn’t hear the warning, as power mowers were operating nearby, and was struck on the back of the head by the ball. Mrs. Orth stated that when she first saw Mrs. Take, that Mrs. Take had her back to Mrs. Orth. Mrs. Orth had been playing golf for nine years, and was an experienced player. She identified a place on a photograph, which was admitted into evidence as plaintiff’s exhibit one, as the spot where Mrs. Take was standing when she was struck. The spot was marked by a pin hole and by Mrs. Orth’s initials. This spot is some distance to the west of the large tree heretofore mentioned, and near the east edge of the fourteenth fairway. There are no obstructions between the fourteenth tee and the spot where Mrs. Take was standing, and a person standing in that spot could easily be seen from the fourteenth tee. Mr. James Manion, a veteran golfer, testified that if Mrs. Take had waved to golfers on the seventeenth tee to play through, that she would be watching the seventeenth tee and would have her back to the fourteenth tee. Mr. Manion also testfied that if there was a person on the course, with their back toward a tee, the persons on the tee should not shoot until the person moved out of the way, or until they were warned, and were aware of the warning. It was only about one hundred to one hundred twenty yards from the fourteenth tee to the place where Mrs. Take was standing when she was hit.

After Mrs. Take was struck, she was taken to the clubhouse. She was bleeding from the head. She was taken to the hospital where a laceration on her head was sutured. Her injuries were diagnosed by her doctor as a laceration and contusion of the scalp with a small underlying skull fracture, and her injuries were attributed to the incident in question. She then went to Dr. Wyatt in Kirkwood for X-rays and treatment. Mrs. Take was in bed for about two weeks and under treatment for six months. She had headaches for several months after the accident, and also dizzy spells. The headaches and dizziness made it impossible for her to do the housework and take care of the children. On many occasions when this occurred, her husband and a hired girl did the housework, and the respondent was deprived of the services and society of his wife during such periods.

Rule 3 in the Rules of Golf of the United States Golf Association on page one, section one, which establishes customs and practices for golfers, states that no player should play, until the players in front are out of range.

Appellant’s testimony, in brief, was as follows. Mrs. Orth stated she was standing on the fourteenth tee with Mrs. Rinehart waiting for people to leave the fourteenth green. She stated the players left the fourteenth green and she prepared to drive. She saw no one ahead except some men working down near the creek. She looked to the left and right, at the area where Mrs. Take was standing when she was struck, but saw no one. She hit the ball, and after she hit it, she saw Mrs. Take walking around the tree with her back toward Mrs. Orth. Mrs. Orth yelled “fore” as did Mrs. Rinehart, but to no avail. Mrs. Orth was familiar with the golf rule previously stated. She said if she had seen Mrs. Take before she hit the ball that she would not have hit the ball.

According to the caddy for Mrs. Orth, Mrs. Take was about ten feet west of the tree in question when she was hit. Mrs. Orth was on the tee for several minutes before she hit the ball.

In rebuttal, Mrs. Take said she had stood in the same spot for a minute or more before she was hit.

At the close of all the evidence, the jury was instructed.

Among said instructions were instructions numbered 6 and 9, which were submitted by appellants, and given by the court, over the objections of the respondent.

Instruction No. 6 reads as follows:

“The Court instructs the jury that on the occasion mentioned in evidence the plaintiff’s wife was at all times under a duty to exercise ordinary care for her own safety, and ‘ordinary care’ as used herein is that care which an ordinarily careful and prudent person would exercise under the same or similar circumstances, and a failure on her part to exercise such care would be negligence.
“You are further instructed that if you find and believe from the evidence that on the occasion mentioned therein the plaintiff’s wife failed to use ordinary care in leaving the 17th fairway and standing or walking in the rough of the 14th hole, if you so find, and if you further find that she saw golfers on the 14th tee and knew that one or more of them might drive a ball toward her, and that she knew that she was in a position where there was a likelihood of her being struck by such a ball, if you so find, and if you further find that in so standing or walking she failed to use ordinary care to keep a lookout for a ball being so driven from the 14th tee, and if you find that in so failing the plaintiff’s wife was negligent, and that such negligence, if any, directly contributed to cause her injury, if any, then you are instructed that the plaintiff may not recover, and your verdict must be in favor of the defendant, Evelyn Orth.”

Instruction No. 9 reads as follows:

“The Court instructs the jury that this law suit is brought by Mr. Take alone, and not by his wife, and if you should find the issues in favor of the plaintiff, in assessing his damages, if any, you must not take into consideration any pain or suffering of his wife, Mrs. Take.”

The jury, in a unanimous verdict, found the issues in favor of appellant.

Respondent filed a motion for a new trial, contending, among other things, that the court erred in giving and reading to the jury instructions numbered 6 and 9. Respondent’s allegations as to the errors in instruction 6 were many, covering 5 full pages in the transcript. Boiled down and stripped of legal verbiage the main complaint was that the instruction did not hypothesize certain relevant facts, such as the players driving on the seventeenth tee and the players on or leaving the fourteenth green, and failed to require a finding that Mrs. Take knew, or should have known that, it was reasonably probable that a golf ball would be driven in her direction from the fourteenth tee while she was standing there; that the instruction assumed facts not in evidence, and was confusing and misleading.

Respondent’s complaint as to instruction No. 9 was that pain and suffering of his wife were proper elements for the jury to consider for the reason that they were the cause of her disability and his loss of her services.

The trial court agreed, and granted a new trial on the grounds that the court erred in giving instructions 6 and 9 and set aside the verdict and judgment. From such order defendant appealed.

Appellant first urges that even if the court did err in giving instructions numbered 6 and 9, such error, if any, was harmless, as respondent failed to make a sub-missible case. Under the proper facts this would be true. Komeshak v. Missouri Petroleum Products Co., Mo.App., 314 S.W.2d 263.

However, in determining whether the plaintiff made a submissible case in the trial court, the appellate court views the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all favorable inferences arising therefrom, and disregarding all contrary evidence. Capriglione v. Southwestern Bell Telephone Co., Mo., 376 S.W.2d 205; Fennell v. Illinois Central Railway Co., Mo.App., 383 S.W.2d 301.

Applying the foregoing principle of law to the facts of the present case, we are of the opinion that plaintiff made a submis-sible case.

A person who is about to strike a golf ball must use ordinary care to warn those within range of the intended flight or the general direction of the drive, and the existence of such duty to warn must be determined by the facts of each case. Hoffman v. Polsky, Mo., 386 S.W.2d 376.

Respondent’s evidence was that his wife was in a position where she had a right to be; that her back was to the fourteenth tee; that she was within range of an intended drive from said tee; that appellant saw, or could have seen her; that she was unaware that a ball would be driven from the tee at that time, and had no reason to believe that it would, and that appellant failed to warn her that she was going to drive. Such evidence entitled her to go to the jury, and we must therefore decide whether instructions numbers 6 and 9 were prejudicially erroneous.

In considering possible error in said instructions, the reviewing court will defer to the trial courts ruling granting a new trial on the theory that such instructions were erroneous, unless the trial court abused its discretionary power in this regard. Stone v. Engler, Mo., 349 S.W.2d 38; Edie v. Carlin, Mo.App., 369 S.W.2d 610.

If such instruction is unsupported by the evidence, fails to hypothesize relevant facts, and may have been confusing and misleading, the giving of such instruction will justify the granting of a new trial. Feld v. Frankel, Mo., 351 S.W.2d 755. Treon v. City of Hamilton, Mo., 363 S.W.2d 704.

Instruction No. 6, as previously set out in this opinion, was a verdict directing instruction on the issue of respondent’s wife’s contributory negligence. Such an instruction must require the finding of all essential fact issues necessary to establish the legal proposition upon which the right to it is based. Shaffer v. Sunray Mid-Continent Oil Company, Mo., 336 S.W.2d 102.

Instruction No. 6 states in its second paragraph, clause one, “that if you find and believe from the evidence that on the occasion mentioned therein the plaintiff’s wife failed to use ordinary care in leaving the seventeenth fairway and standing in or walking in the rough of the fourteenth hole.” No facts are hypothesized upon which any finding of negligence in so doing could be based. Respondent’s wife had a right to be on the course, and a right to help her golfing partner to look for her lost ball. In so doing, she had a right to proceed to the area where she was standing when she was struck. No rule or custom of golf is present in the record to indicate otherwise. If the evidence had been that Mrs. Take saw, or could have seen, Mrs. Orth on the fourteenth tee making preparations to drive, and had consciously walked into the line of intended flight of the ball while Mrs. Orth was making her shot, there might be some substance to appellant’s argument. Such was not the case, and even if it were, no such facts were set out in the instruction.

The next clause of the instruction states that “if you further find that she saw golfers on the fourteenth tee and knew that one or more of them might drive a ball toward her * * There is no evidence that Mrs. Take saw golfers on the fourteenth tee making preparations to drive, or that she knew that one or more of them might drive a ball toward her. In fact, the evidence is to the contrary. The evidence was that she saw golfers approaching the fourteenth tee, but they weren’t ready to drive off. This was at a time when she was standing in the spot where she was struck. Appellant’s evidence on this point was that Mrs. Take’s back was to her at all times. In addition, there was evidence of a custom or rule of golf that if a person is in front of and within range of a person about to strike a ball that no player should strike the ball until the person in front was out of range or had heard a warning that the person was about to strike the ball.

Mrs. Take said she relied on that custom, and appellant, a golfer of considerable experience, having played for nine years was aware of this rule. There is no evidence in the record that would support a finding that Mrs. Take knew a golfer on the fourteenth tee would drive a ball toward her at that time.

The fourth clause of the same paragraph of said instruction states, “And if you further find that in so standing or walking she failed to use ordinary care to keep a lookout for a ball being so driven from the fourteenth tee * *

The words “in so standing or walking” have nothing to do with any alleged failure to keep a lookout and are confusing and vague.

Instruction No. 6 failed to hypothesize facts by which a jury could find Mrs. Take guilty of negligence for leaving the seventeenth fairway and proceeding to the fourteenth rough, asked the jury to assume facts not in evidence, such as that Mrs. Take saw golfers on the fourteenth tee and knew that one or more of them might drive a ball toward her, and was confusing and misleading.

We hold that the instruction in question was calculated to mislead the jury, as they might find and believe from it that Mrs. Take could not recover merely because she was in the rough of the fourteenth hole looking for a lost ball. This injected a false issue into the case, and was prejudicially erroneous. Karch v. Stewart, Mo., 315 S.W.2d 131, 137, Shaffer v. Sunray Mid-Continent Oil Co., supra, 336 S.W.2d l. c. 107.

Instruction No. 9 was a withdrawal instruction offered by appellant and given by the court. This instruction told the jury that if they found for the plaintiff, in assessing his damages, if any, they must not take into consideration any pain and suffering of his wife.

As this instruction was a measure of damages instruction, and did not instruct on liability, any error therein would not become applicable, unless the jury found for the plaintiff, which was not the case here. Where there is a defendant’s verdict, the giving of an instruction having to do with an award of damages could not have been prejudicial. Killian v. Wheeloc Engineering Company, Mo., 376 S.W.2d 147.

However, on retrial, this issue will again be presented, so we deem it proper to make a brief comment on the propriety of the instruction in question.

It is elemental that a negligent personal injury to a married woman gives rise to two independent causes of action, one for the wife for injuries to her person, her pain and suffering, and disability, and one for the husband for expenses in treating his wife’s injuries, and for the loss of her services, society, and companionship. Rea v. Feeback, Mo., 244 S.W.2d 1017.

The husband’s claim- for expenses, and loss of services, on account of personal injuries to the wife, arises out of, and is based directly on the wife’s personal injuries, which includes her pain and suffering. State ex rel. St. Louis Public Service Co. v. McMullan, Mo., 297 S.W.2d 431, 62 A.L.R.2d 1281, and the husband is entitled to introduce evidence of such pain and suffering, if he does it to show that as a result of such condition he has been or will be deprived of her services and society. Cullar v. Missouri, K. and T. Ry. Co., 84 Mo.App. 347.

The case will be retried under the Missouri Approved Jury Instructions. Sup.Ct. Order and Rules 70.01 and 70.02, V.A.M.R.

The measure of damage instruction is M.A.I. 4.01, which is a short and simple instruction. During the instruction conference, the parties and the court should discuss what damages are supported by the evidence, and can properly be argued to the jury.

Any withdrawal instruction, such as M.A.I. 30.01, should not raise a false issue in the mind of the jury by removing the issue of the wife’s pain and suffering from the ease. It is a proper issue, insofar as it is shown that the husband has been deprived of her services and society by reason thereof.

For the foregoing reasons we find no error in the action of the trial court in granting a new trial.

The order of the trial court granting plaintiff (respondent) a new trial is affirmed.

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

RUDDY, J., not participating.


author: WOLFE, Presiding Judge.

text:
    Margaret Jean HOFFMANN, Now Jean Andrews, Plaintiff-Appellant, v. William John HOFFMANN, Defendant-Respondent.
    No. 31925.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.
    A. Wimmer Carr, Tremayne, Joaquin, Lay & Carr, St. Louis, for plaintiff-appellant.
    Paul E. Dixon, St. Louis, for defendant-responden;.
   WOLFE, Presiding Judge.

This is an action to modify a divorce decree. The defendant first filed a motion seeking custody of the children which had been granted to the plaintiff by the divorce decree. He also sought an order preventing the plaintiff from removing the children from the jurisdiction of the court. The plaintiff then filed a motion seeking modification. She sought permission to remove the children to California and asked for an increase in the sum allowed her as child support by the decree of divorce. The trial court denied the plaintiff’s motion and granted the defendant’s motion giving the defendant custody of the children with certain visitation rights to the plaintiff. The plaintiff prosecutes this appeal.

The decree of divorce which the parties seek to modify was granted on May 14, 1959. It gave custody of a daughter, then IO14 years of age, and a son, 8i/£ years of age, to the plaintiff mother. It also provided that the father defendant was to have custody of the two children from June 1 to September 1 of each year with certain visitation rights throughout the year and that he pay $12.50 per week for the support of each child.

The defendant was 40 years of age at the time of the hearing of the motions here under consideration. He had been a truck driver salesman for a packing company. He had earned $6,800 a year at that occupation, but on March of 1960 he lost his left leg in an accident while working for the company. Since that time he worked as a real estate broker. His earnings at his new occupation at first were much less than he had earned before, but they had shown an increase each year. In addition to his earnings he had investments totaling $18,000 and over $16,000 in a savings account. These sums he had realized in settlement of a claim for damages arising out of his injury. His mother lived with him in a five room apartment. She was 66 years of age. He operated his real estate business from his home.

After the divorce the defendant saw his two children about five times each week. He would call to see them after school and stay till it was time for their mother to return from work. He did not see them so much in the summer time for they had been in the habit of taking trips with their maternal grandparents who lived in Columbia, Missouri. They enjoyed these trips and he did not wish to deprive them of this pleasure.

In January of 1962 a man named Andrews moved into the plaintiff’s home and the plaintiff informed the defendant that she had married Andrews. She also told the children that she had remarried. Andrews assumed the role of stepfather and endorsed checks sent to the plaintiff by the defendant for the support of the children. As a matter of fact, Andrews was married at the time he moved in with the plaintiff and had two children of his own. The plaintiff knew this but continued to live with Andrews in adulterous cohabitation. Andrews’ first wife sued him for divorce which she obtained, and over a year after he had moved into the plaintiff’s home he and the plaintiff were married.

Andrews had three ventures into going into business for himself and had failed in all three. He had never lasted long in any employment upon which he entered. He was indebted to the City of Ferguson for $1,000. He owed his former mother-in-law $1,500, and he also owed $1,200 on an automobile that he had owned and which had been repossessed. He paid about $350 a month in alimony and child support to his first wife. He had a job in California which he described as a sales manager and advertising and promotion manager with a company that sold small home appliances such as toasters and electric mixers.

The children here under consideration who had been regular in attendance at a Baptist Church before the plaintiff and defendant were divorced had attended no church since that time. The 15 year old daughter had been allowed to go on dates unchaperoned over the protests of her father, the defendant. Andrews was a vegetarian and the plaintiff served nothing but a vegetarian diet to the children. The children liked meat and were allowed to eat it at school. Both the children wanted to go to California but both stated that they loved their father very much.

There was other evidence relating to the lack of medical care for the children. There was also evidence that the plaintiff was pregnant at the time of the hearing below. It appears, however, that all of the facts necessary for a disposition of this appeal are those above stated.

The plaintiff-appellant raises only two points on this appeal. The first point is that the court erred in changing the primary custody of the children from the plaintiff to the defendant. It is asserted that the change was against the weight of the evidence. The evidence clearly shows that the plaintiff had become a person contemptuous of the law and moral standards by living in open adultery; that the children were partly under the control of an unstable stepfather who flitted from one job to another and that the children were deprived of religious training. These were serious changes that had taken place since the divorce. On the other hand, defendant appeared to be a person of substance and industry with a concept of the parental responsibility to impose wholesome restrictions upon children.

There was certainly sufficient change since the divorce to warrant the court in sustaining the defendant’s motion to modify the decree and in awarding primary custody of the children to the defendant. The point is therefore without merit.

The second point is that the court erred in overruling plaintiff’s motion to permit the plaintiff to remove the children to California. This is fully disposed of by that which we have said in relation to the first point and it is also without merit.

The judgment is affirmed.

ANDERSON, J., and WOODSON OLD-HAM, Special Judge, concur.


author: SPERRY, Commissioner.

text:
    The FARMERS STATE BANK, a Corporation, CAMERON, Mo., Plaintiff-Appellant, v. Myrtle A. BURNETT, Defendant-Respondent.
    No. 24200.
    Kansas City Court of Appeals. Missouri.
    Oct. 4, 1965.
    J. B. Beavers, Cameron, for appellant.
    J. K. Owens, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff filed its petition in equity on the theory that the facts in this case established the existence of a constructive trust. It prayed that the land, described in the petition, be impressed with a lien in its favor in the sum of $3,350.00, and that the lien be foreclosed. Defendant filed an answer. Judgment was for defendant and plaintiff appealed.

All of the evidence received was offered by plaintiff, including testimony of defendant.

Plaintiff was, at all times mentioned in evidence, engaged in the general banking business, and John R. Burnett, deceased, the former husband of defendant, was a depositor of plaintiff. Defendant was never a depositor of plaintiff and had no legal interest in her husband’s bank account.

On and prior to January 22nd, 1952, Mr. Burnett had on deposit, in his checking account, in excess of $3,400.00. On the above mentioned date he signed and delivered to S. S. Porter his check, drawn on his account with plaintiff, in the sum of $3,350.00, in full payment of the balance of the purchase price of a piece of real estate at that time deeded to him and defendant by Mr. Porter. The check was duly presented to plaintiff and was by it paid. However, through an error on the part of plaintiff’s employees, payment was charged to the account of a depositor other than Mr. Burnett. Plaintiff reimbursed the other depositor in the amount of $3,350.00. There remained in Mr. Burnett’s account more than $3,350.00 until he closed it and withdrew all money on March 16th, 1953. Mr. Burnett died in May, 1954, after which time defendant sold the Porter property and bought another home. This latter real estate is the property which plaintiff seeks to have impressed with a lien in its favor. Plaintiff’s evidence was to the effect that it failed to learn of the error which gave rise to this lawsuit until late in 1954 or early 1955. This suit was instituted in 1961, after plaintiff had endeavored, without success, to persuade defendant -to pay the amount involved, over a period of six years.

In Little v. Mettee, 338 Mo. 1223, 93 S.W.2d 1000, 1005, the court declared that, whether it be a resulting or a constructive trust, an extraordinary degree of proof is required to establish it; that the evidence must be so cogent, clear, unequivocal and positive as to banish doubt from the mind of the chancellor; that there must remain in his mind no reasonable doubt. At page 1008 the court said:

“ * * * Fraud, actual or constructive, is an essential element in the creation or existence of a constructive trust. Young v. Kansas City Life Ins. Co., 329 Mo. 130, 43 S.W.(2d) 1046; Norton v. Norton (Mo.Sup.) 43 S.W.(2d) 1024; Ferguson v. Robinson, 258 Mo. 113, 167 S.W. 447; 65 C.J. p. 455. Defendants had no knowledge, either actual or constructive, of plaintiff’s right or interest, if any, and there • is no showing upon which they can be charged with fraud, either actual or constructive, * *

In Wier v. Kansas City, 356 Mo. 882, 204 S.W.2d 268, 270, the court said:

“ * * * Similarly expressed, a constructive trust is the method or formula used by a court of equity as a means of effecting restitution or of rectifying a situation where, as a result of the violation of confidence or faith reposed in another, or fraudulent act or conduct of such other, the plaintiff, who seeks the aid of equity, has been wrongfully deprived of, or has lost some title, right, equity, interest, expectancy, or benefit, in the property which otherwise and hut for such fraudulent or wrongful act or conduct, he would have had. Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8. See, also, Restatement of the Law of Restitution, Sec. 160, p. 640 et seq. * *

Mr. Burnett practiced no fraud on plaintiff. Defendant had no knowledge of any mistake in charging the check against someone other than Mr. Burnett until after his death. The undisputed facts fail to establish the existence of a constructive trust at any time.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

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

All concur.