author: RUDDY, Presiding Judge.

text:
    George L. DRIVER, (Plaintiff) Respondent, v. William S. ANHEUSER, (Defendant) Appellant.
    No. 31807.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.
    Rehearing Denied Nov. 17, 1965.
    Application to Transfer Denied Jan. 10, 1966.

      Schwartz & Ely, Robert C. Ely, St. Louis, Theodore P. Hukriede, Washington, for appellant.
    Shepherd & Weenick, Charles M. M. Shepherd, Clayton, for respondent.
   RUDDY, Presiding Judge.

This is an action for damages arising out of personal injuries sustained by plaintiff when the automobile he was driving was struck in the rear by an automobile driven by defendant. The trial resulted in a jury verdict in favor of plaintiff and defendant appeals.

In his answer to plaintiff’s petition and at the trial defendant admitted that the collision was the result of his negligence and admitted liability.

At the time of the collision plaintiff was driving a 1959 four door Impala Chevrolet eastwardly on Highway 66 at approximately midnight on January 24, 1963. As he approached Rock Hill Road, a north and south four lane highway, there were electric signals controlling traffic on both highways. As he neared the intersection of Rock Hill Road the light on the electric signal was first yellow and then turned red for eastbound traffic on Highway 66, indicating stop. In response to the red signal, plaintiff brought his car to a full stop at the intersection. When he stopped his car was in the right hand lane next to the curb and was all the way up to the intersecting road. At the time he made his stop there were no other automobiles to his left or behind him. He had his mother-in-law in the car with him. After he had been stopped approximately 10 seconds the defendant’s car ran into the rear of plaintiff’s car. Plaintiff described the force of the collision as follows: “I sensed first of all that the car had been hit * * * and my body and neck taking a heavy force backwards which went backwards first, and then came back up again and back still again. I went back again, I think, because the seat had broken loose from the impact of my body, both mine and my mother-in-law’s breaking the seat loose.” He said his hands were pulled away from the steering wheel and his feet were pulled away from the foot pedals by the impact and the seat breaking loose from its mountings. The force of the collision propelled his car into Rock Hill Road and being concerned about the possibility of a car coming across Rock Hill Road and running into the side of his car, he said he jumped up, “grabbed the steering wheel and guided the car into a filling station on the other side of Rock Hill Road.”

After the collision defendant’s car was in approximately the same place as plaintiff’s car had been before it was hit. In addition to tearing the front seat from its mounting, the impact of the collision tore the motor loose from its mounting and tore the battery cable, fuel pump and fuel lines loose from the motor of plaintiff’s car. The frame of the car was bent and there was other extensive damage to plaintiff’s automobile, all of which resulted in plaintiff’s determination not to retain the car and he subsequently sold it for $325, although it had a value before the collision of $1100.

At the time of the collision plaintiff was a salesman for Hoover Bros., Inc., a school supply and equipment company. Plaintiff had in his car a 16 MM Bell and Howell Sound Projector, a Master Viewgraph and a Hook and Loop Demonstration Board. Some of these items were damaged extensively as a result of the collision. However, because of our ultimate ruling, we need not detail the damage.

Within an hour or two after the accident plaintiff began to experience an intense throbbing headache and some backache. He took some aspirin and Alka Seltzer to get relief and got very little sleep the night of the accident. Although he was employed, as indicated, he did not pursue his occupation the following day, which was Friday, because he did not feel well and because he did not have an automobile to go to work. On the following day, which was Saturday, his condition seemed to get worse and he said he was extremely stiff and sore upon getting up in the morning. It was not until the Monday after the accident, which was January 28, 1963, that he saw Dr. Milton Kardesch for the first time concerning his injuries.

On this first visit the doctor gave plaintiff a prescription and told him to rest as much as possible and to keep hot wet towels on his neck, “as warm as I could stand it without burning.” After this first visit he called the doctor on the telephone and told him he was not getting any relief from the medicine and the doctor sent out some other medicine, which he described as codeine. He described the pain he had at the time as very severe and very sharp which seemed to go up the back of his neck and gave him a terrific headache. When reclining in bed he could get no relief from the pain no matter what position he assumed. As a result he said he became irritable and nervous. He made other visits to the doctor and took the medicine and followed the doctor’s instructions regularly after his first visit. At the time of the trial he said that he still had extensive pain in his neck and throbbing headaches. He said this condition did not bother him as much if he took it easy, but if he worked the condition would get worse. He said his work involved a lot of driving, sometimes 12 to 18 hours a day and when he was not driving he did a lot of detail drawing which required him to bend over a drawing table and both the drawing work and the driving of the automobile seemed to make his condition worse. In his work he was required to call on school board meetings in the evenings but since the accident he has not been making night calls. He said he attended only one evening meeting during 1963 and there were others he should have attended but could not because he was not up to it physically. At the time of the trial he was still taking the medication prescribed by the doctor. Plaintiff lost one day of work because of his injuries and saw the doctor a total of four times prior to the trial. Approximately two to three months separated each of his visits to the doctor and he had not seen the doctor since August prior to the trial, which took place in the latter part of October 1963.

Dr. Milton Kardesch testified that he first saw plaintiff on January 28, 1963, which was the Monday following the accident, which occurred on the preceding Thursday. On this first visit Dr. Kardesch found very tender spastic neck muscles on both sides and posteriorly. However, he did find a normal range of neck motion but plaintiff appeared to be somewhat anxious. He said he could sense the extreme spasticity in plaintiffs neck by sight; that he saw plaintiff holding his head and his neck in an unnecessarily rigid position. X-ray pictures were taken from different positions and showed no fractures or dislocations and showed no encroachment or pinching possibility of any of the bones on the nerve coming out of the spinal cord. However, the X-ray pictures did show a loss of the normal curvature of the spine in the neck which Dr. Kardesch described as an abnormal condition. In describing this straightening or loss of the normal curvature of the spine at the neck he said “that the muscles of the neck had been injured severely enough to try to compensate for the amount of pain as a result of muscle injury. The head will try to assume the position that is least painful — therefore, hold it rigid enough to try to take some of the burden off of all of the muscles.” He said it was this rigid position that caused the straightening of the ordinary curve of the neck-bones. His diagnosis was an acute sprain of the cervical spine and anxiety reaction.

Dr. Kardesch, in explaining what a sprain is in a muscle, said: “the sprain implies that the different muscle fibers that make up the muscle bundles have either been pulled apart or are torn. These muscle fibers are held together by a rather poor cement work of the very flimsy fibers and in between these little fibers may run vessels, blood vessels, nerves, lymphatics. During a sprain, blood vessels may tear— they are very small — nerves may be stretched; muscle fibers pulled or torn.” When asked what happens to the muscle after a sprain occurs, the witness answered : “as with any tear or cut or abrasion or laceration, there is bound to be destruction and consequent scar formation as with any other tissue of the body. There would be blood vessels, muscles or skin, so, consequently, there is scar formation, however, to all variable degrees.” When asked to describe the injury to the muscle, he said “A. Primarily tear, over-extension, or too much pull on the muscle, fibers being pulled apart and possibly even some minute bleeding between the spaces of the fibrils that make up the muscle.” In the matter of medication he prescribed a muscle relaxant and tranquilizers and suggested the application of warm wet packs to the injured muscles. The tranquilizers were primarily for the emotional aspects.

Dr. Kardesch again saw plaintiff on March 14, June 13 and August 27, 1963. At the time of the March visit he found muscle spasm present in the same areas as before but found some improvement in the neck. On this occasion he said plaintiff complained that his neck would become painful toward late in the afternoon, associated with headaches and' poor visibility and poor ability to work after three to four P.M. each day. He changed the medication to include a combination muscle relaxant and tranquilizer. Prior to this March visit Dr. Kardesch had a phone call from the plaintiff on February 6, 1963, at which time plaintiff complained about no improvement in his condition and the doctor prescribed an increase in the original medication. On the occasion of the June visit the doctor found that the muscles were softer and no longer as spastic or as tender. There was much less spasm in the area but some was still present. However, plaintiff continued to complain about persistent neck pain. The last time witness examined plaintiff he found a slightly tense muscle which indicated some spasm in the area.

On direct examination Dr. Kardesch was asked if he could describe the condition and give any idea of the underlying tissue within the muscle after seeing a condition of spasm of the muscle for a period from January to August. He answered: “Generally, if spasticity and pain has gone on for this period of time, one would most likely find rather permanent areas of permanent scar tissue.” He said it would be similar to scar tissue left from a cut on the arm after it healed. He was asked: “In a period of time, will this scar tissue disappear? A. No, this will remain as a permanent scar tissue.” It was his opinion that the nerves emerging from the spinal canal were not injured and he believed that the area of injury was in the muscles.

The following questions were asked and answers given on direct examination concerning whether plaintiff had any permanent condition: “Q. Considering further the fact, in conjunction with the consideration you have just commented about, the fact that spasticity was present as late as August and that the patient had complained of pain and demonstrated an anxious or tense state even after the application of medications which you have mentioned, do you have an opinion, based upon reasonable medical certainty, as to whether or not this condition is permanent? A. Yes. Q. What is that opinion? A. I feel that Mr. Driver will have a permanent partial neck disability. Q. How will this disablity demonstrate itself in future times? A. I think over a period of time he will have a restoration of his neck function but over a period of time he will continue to have neck discomfort. Q. Based upon your experience, do you have any estimate as to the period of time that discomfort or limitation will be present? A. This would be a pure estimate because it varies so much, but I would estimate anywhere from two to four months.” During the period of two to four months the plaintiff would have to continue the medicines and treatment prescribed by the doctor.

However, during cross-examination the doctor gave the following testimony concerning the question of the permanency of plaintiff’s condition. “Q. Doctor, you mentioned, in response to Mr. Shepherd’s questions, you said that you found, in your opinion, a permanent condition, is that right, Sir? A. No. If I did, I didn’t mean to imply that. * * * I meant that the prolonged spasticity implies — over a period implies that there would be scar tissue which is a permanent — Q. The scar tissue is just as if anyone would have, say a scar on the skin of your knuckles or wherever it might be — that’s there for the rest of their life, I presume? A. Yes. Q. It has no disabling feature to it whatsoever, does it? A. It’s a matter of degree. Q. And in your opinion this man will have a complete recovery, will he not? A. He will have a complete restoration of his neck movements, yes.”

The doctor further testified that on September 17, 1963, he made a written report to plaintiff’s attorney and in his report he stated that it was then his opinion “that within one to two months that he (plaintiff) was going to be completely recovered.” By complete recovery he meant that the neck would be back to where it was before the accident happened. In his report he said the prognosis “is excellent” which in his testimony he said “this implies complete recovery.” He described plaintiff’s condition on the first visit as moderate and during the remaining visits he found a continuing improvement in plaintiff’s condition. On redirect examination the doctor said that by the term “complete recovery” he meant there would be a complete recovery of the function of the neck and neck muscles. He was asked, “will the underlying fibers return to their condition as they were previous to the time of his injury” and he answered, “No, sir. Q. So there will be no complete recovery of the tissue in question? A. That’s correct.”

In his first point defendant contends the trial court erred in giving Instruction No. 2 on the measure of damages when it submitted for the jury’s consideration “any distinct permanent personal injuries, if any,” sustained by plaintiff. In support of this contention defendant asserts that there is no evidence in the case to substantiate a finding of any permanent injury having been suffered by plaintiff. Defendant says that the only doctor in the case said that plaintiff did not have a permanent injury and that the doctor expects a complete recovery by plaintiff and for this reason the injuries suffered by plaintiff were not such as would by themselves support a finding of permanent injury. In opposition to this plaintiff contends that when all the medical evidence is considered, reasonable men must agree that the record in this case supports a submission of permanent injury, contending that in the case at bar the inquiry was as to a permanent condition and the answer of the doctor was that plaintiff would have a permanent partial neck disability, with continuing neck discomfort, including areas of permanent scar tissue that will not disappear. Because of this contention by plaintiff, we have shown rather fully the medical testimony given by Dr. Kardesch.

In resolving these opposing contentions, we point out that it is a cardinal rule, firmly established, that in order for plaintiff to recover damages for permanent injury, the permanency of the injury must be shown with reasonable certainty, and while absolute certainty is not required, mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor. Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Derschow v. St. Louis Public Service Co., 339 Mo. 63, 95 S.W.2d 1173.

Addressing our remarks to that part of the testimony of Dr. Kardesch which may have a bearing on the question at issue, we find that the doctor did say that the muscles of the neck had been injured severely and that his diagnosis was an acute sprain of the cervical spine. In describing a sprain to a muscle, he said that “the sprain implies that the different muscle fibers that make up the muscle bundles have either been pulled apart or are torn * * Again, when asked what happens to a muscle after a sprain occurs, he said “As with any tear or cut or abrasion or laceration, there is bound to be destruction and consequently scar formation as with any other tissue of the body.” The testimony which seems to have a direct bearing on plaintiff’s injury is that which the doctor gave when he was asked to describe the injury to the muscle, he said, “Primarily tear, over-extension, or too much pull on the muscle, fibers being pulled apart and possibly even some minute bleeding * * When he was asked to describe the condition of the muscle after seeing a spasm of the muscle over a period from January to August, he answered, “Generally, if spasticity and pain has gone on for this period of time, one would most likely find rather permanent areas of scar tissue.”

In his direct examination the doctor did say that plaintiff would have permanent partial neck disability. However, later in his direct examination he said that plaintiff would have a restoration of his neck function, but over a period of time will continue to have neck discomfort. When asked about the period of time plaintiff would have discomfort, he said it would be from two to four months. When his direct examination is considered in its entirety, it is clear that he did not give an opinion that plaintiff will have a permanent neck disability. However, this matter was clarified beyond any doubt on cross-examination, when he declared that he did not mean to imply, in his direct examination, that plaintiff would have a permanent condition and that it was his opinion plaintiff would not have a permanent disability of the neck but would have a complete restoration of his neck muscles and within several months would experience a complete recovery. In his cross-examination he did state that over a period of time plaintiff would have scar tissue which is permanent, and in this connection, on his redirect examination, he said there will be no complete recovery of the tissue in question. Therefore, a fair conclusion of the medical testimony given by Dr. Kardesch on the question of permanency would be that in his opinion plaintiff will have complete recovery, however, he would have areas of permanent scar tissue that will not disappear and which are below the surface of the skin and obviously do not disfigure and that (in the doctor’s words) “there will be no complete recovery of the tissue in question.”

In the cases and authorities, some of which we cite below, a permanent injury is defined and described as a physical or mental impairment or disability which will last throughout life. Plank v. R. J. Brown Petroleum Co., supra; Derschow v. St. Louis Public Service Co., supra; Vol. 32, Words and Phrases, Page 172. Another definition frequently used in the cases to describe permanent injuries are those injuries that are reasonably certain to be followed by permanent impairment of earning capacity, or producing permanent irremediable pain. Vol. 32, Words and Phrases, Page 171. In 43 C.J.S. Injury, page 1120, a permanent injury is “one that, according to every reasonable probability, will continue throughout the remainder of one’s life; one that is reasonably certain to be followed by permanent impairment of earning capacity, or one which produces lasting irremediable pain; one where any physicial function, or the usefulness of a member of the body is permanently impaired.”

In the instant case there is no medical evidence in the record before us which would show that plaintiff’s permanent scar tissue produces or causes any physical or mental impairment or disability which will last throughout life or that the scar tissue is reasonably certain to be followed by permanent impairment of earning capacity or lasting irremediable pain; nor does the record show that the scar tissue will impair any physical function or the usefulness of any member of plaintiff’s body. There is no showing that the scar tissue will be painful or sensitive or disfiguring or cause any impairment of any kind to the plaintiff. It is only when an injury, such as we have described, results from the formation of scar tissue that it becomes a proper element of recoverable damage. Scar tissue in and of itself which does not cause any of the impairments we have stated is not a proper element of damage.

In the case of State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428, l. c. 431, the court said: “It is not common knowledge that fractures of bones and sacroiliac sprains are permanent injuries * * *. So we conclude that as a general rule fractures of bones and involvement of the sacroiliac joint are not injuries that may be considered permanent absent substantial evidence to that effect.” Nature’s healing process of a bone can be compared to that of the soft tissue of the body. In the case of a fracture of a bone it heals with calcium that unites the broken parts of the bone and frequently this healing process creates some permanent change in the contour of the bone, but this is not considered a permanent injury in and of itself as shown in the Shain case. The formation of calcium which unites the broken bone is similar to scar tissue which unites and heals the injury to the soft tissues and, therefore, it is not an injury within the meaning of the law which permits recovery of damages, unless, as we said, it causes some impairment. We rule that there is no evidence to support a finding of permanent injury. Therefore, it was reversible error for the trial court to submit the question of permanent personal injury to the jury.

In support of his contention plaintiff cites in his brief the case of Kagan v. St. Louis Public Service Co., Mo.App., 360 S.W.2d 261, a case decided by this court, wherein plaintiff suffered a cervical and lumbo-sacral sprain and an induced duodenal ulcer among other injuries. In that case defendant contended that there was no substantial evidence to support the giving of an instruction which authorized the jury to allow damages for permanent injuries. In refuting defendant’s contention we pointed to the testimony of the treating doctor wherein he gave it as his opinion that plaintiff would have a permanent condition by virtue of formation of scar tissue, and with increased susceptibility of a recurrence of the duodenal ulcer. The doctor was also asked, “I will ask you to tell the Court and jury whether or not, in your opinion, he will have some permanent injury to his neck and his back as a result of this occurrence.” He answered: “Oh, I think he will have some permanent effect.” (360 S.W.2d 1. c. 269) Defendant contended that the use of the term “permanent effect” was less than substantial evidence of permanent injury. However, in answer to this contention we said that the use of the word “effect” instead of “injury” did not diminish the probative force of the answer that it can be said to fail to constitute substantial evidence of permanency to support the giving of the instruction. There is nothing in what we said in this case that authorizes a recovery for permanent scar tissue in and of itself where it does not result in some impairment. What we did say in the Kagan case was that the plaintiff’s medical testimony shows that he will have some permanent injury to his neck and his back as a result of the occurrence.

In another point relied on by defendant he contends Instruction No. 1, given at the request of plaintiff, contains error. The instruction recited the facts of the accident and then told the jury “that in allowing his automobile to collide with the rear end of the automobile of plaintiff, defendant failed to exercise the highest degree of care, because said negligence on the part of Defendant was admitted, and caused Defendant’s automobile to violently collide with plaintiff’s automobile, so now then, your verdict must be for the plaintiff.” Defendant objected to the court assuming in the instruction, as an admitted fact, that he caused his automobile to violently collide with plaintiff’s automobile. No place in the petition was defendant charged with violently colliding with plaintiff’s automobile. Therefore, defendant contends there is no admission in the case as to the extent of the force of the collision. Without reciting all of the evidence showing the force of the collision, we think the evidence is sufficient from which the jury could find that the collision was violent. Inasmuch as the extent of the force of the collision becomes a very important matter for the jury to consider in determining the extent of the damages and the amount of the verdict, we think the extent of the force of the collision should be left to the jury to determine and that said instruction, in telling the jury that the collision was violent, was error. In the case of Conley v. Fuhrman, Mo., 355 S.W.2d 861, l. c. 867, the court said: “ * * * an instruction should never state that a fact is admitted unless it has been unquestionably conceded by the party or parties.”

Other points asserted by the defendant concern matters that go to the question of damages. Inasmuch as this case will have to be remanded for a new trial and in a new trial the recently adopted Missouri Approved Jury Instructions will be submitted to the jury, there is no need to discuss these other points. Therefore, the judgment is reversed and the cause remanded for a new trial on the issue of damages only.

WOLFE, J., and SAMUEL E. SEM-PLE, Special Judge, concur.


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    Orville UNDERWOOD, Plaintiff-Appellant, v. James MOLONEY, Administrator of the Estate of Amy Burns, Defendant-Respondent.
    No. 31659.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.
    Rehearing Denied Nov. 17, 1965.
    Application to Transfer Denied Jan. 10, 1966.

      Edward F. Downey, John J. Delabar, Lawrence E. Ehrhart, St. Louis, for plaintiff-appellant.
    James & Morris, Harry M. James, St. Louis, for defendant-respondent.
   ANDERSON, Judge.

This action was originally brought against Harry Burns and his wife Amy Burns. It was a suit for damages for personal injuries sustained by plaintiff, a tenant of said defendants, alleged to be due to the negligence of the latter, who were the owners of the property holding title as tenants by the entirety. Defendant, Harry Burns, died on or about November 11, 1961, and on September 27, 1962, Amy J. Burns, Executrix of the Estate of Harry Burns was substituted as a party defendant for Harry Burns, deceased. Thereafter, the action as against Amy J. Burns, Executrix of the Estate of Harry Burns was by the Court dismissed on motion of said Executrix. The cause thereafter proceeded against Amy J. Burns and the trial thereof resulted in a verdict and judgment for plaintiff in the sum of six thousand five hundred dollars. Defendant thereafter filed her motion for judgment in accordance with her motion for a directed verdict, or, in the alternative, for a new trial. The motion for judgment was by the Court sustained. It was further ruled that if said judgment be reversed by an appellate Court, the motion for new trial was sustained for error in giving Instruction 3. From this ruling of the Court, Plaintiff has appealed. After the appeal and before submission of the cause in this court, defendant Amy Burns died, and by agreement of the parties her administrator, James C. Moloney, was substituted as Respondent herein.

The facts in this case which we deem necessary to a decision of the points raised on this appeal come from the evidence introduced by plaintiff. Defendant introduced no evidence, but stood on her motion for a directed verdict offered at the close of plaintiff’s case.

The premises in question was a two-family flat having four rooms downstairs and five rooms upstairs. It was known and numbered as 5812 Theodosia Street in the City of St. Louis. It was on the south side of said street. There was a front porch across a portion of the north end of the building with steps leading from the sidewalk to said porch. From the porch there were two separate doors, or entrances to said building, one leading into the downstairs flat and the other for use of the upstairs portion of the flat. Mr. and Mrs. Burns resided in the downstairs portion, and plaintiff, a tenant lived upstairs. Mr. and Mrs. Burns owned the building as tenants by the entirety. They purchased the property in 1946, and moved into the property in October of that year. Mr. and Mrs. Burns regarded it as partnership property. Whatever Mr. Burns did with reference to repairs met with Mrs. Burns approval. Rent collected was placed in a joint bank account, and taxes were paid out of this account.

Immediately inside the front door to the upstairs portion of the flat was a trap door about 4 feet long and three feet wide. This trap door was level with the floor and formed a part of it. A stairway leading to the second floor ascended southwardly from the south end of the trap door. Beneath the trap door was a stairway for the use of the upstairs tenants which descended southwardly to the basement. This stairway consisted of nine wooden steps. There was what was referred to in the evidence as a step board which ran north and south along the west wall of the building. This step board was about four feet long and six inches wide, and was located about six inches below the trap door. There was about 35 inches of head room from the trap door frame to the basement steps.

The step board at its south end rested upon an upright 4 by 4 inch board which was nailed to the basement wall about 18 inches below the trap door, with about four or five twelve penny nails. There was testimony that these nails were not long enough to hold the 4 by 4 fast to the wall, but for such purpose forty penny nails should have been used. At its north end, the step board was nailed to the upstairs stairway. The evidence does not disclose whether or not the step board was nailed to the top of the 4 by 4. The step board was used by anyone going from the stairway which led upstairs to the basement stairway, and vice versa. Because of having so small headroom space, one wishing to descend the basement stairway would be required to almost get on his hands and knees to get through the trap door. There were two lights for the illumination of the basement stairway, one hanging directly over the trap door and the other in the basement near the furnace provided for the upstairs portion of the flat. There was testimony that these lights did not illuminate the underside of the step board and its support. In order to observe how the basement stairway and step board were constructed it would be necessary to carry a light on an extension cord onto the basement stairway.

The steps leading from the trap door to the basement were there when Mr. and Mrs. Burns bought the property in October, 1946. In December, 1957, plaintiff rented the upstairs portion of the flat, and moved in sometime later. Mr. Burns handled the matter of renting with plaintiff and his wife. There was no written agreement to lease. The conversation between Mr. Burns and the Underwoods with reference to the renting was limited to a statement that the rental would be $50.00 per month, which the latter agreed to pay. Nothing was said between the parties about repairs to the premises.

Before plaintiff and his family moved into the premises and took possession under the rental agreement, Mr. Burns did some wall papering and repaired the plastering in the living room. Mr. Burns told plaintiff if there was any thing he needed done to tell him and he would have it fixed. This conversation was after plaintiff had agreed to rent the premises, and before he and his wife moved in and took possession under the agreement to rent the premises.

Mr. and Mrs. Burns retained a key to the upstairs apartment. The reason they did this was explained by Mrs. Burns, who was called as a witness by plaintiff: “Well in case of an emergency we would have the key to go and see about a fire or anything like that, we would have the key to see about it.”

On one occasion, about a year after plaintiff moved into the premises, Mr. Burns noticed water coming down into his bathroom. His bathroom was directly underneath that of plaintiff. A drain under the floor of plaintiff’s bathroom had developed a leak, and Mr. Burns called a contractor to put in a new drain, thus protecting his bathroom from the dripping water. Plaintiff testified he did not let the contractor into the apartment. Mrs. Burns testified that she thought they (she and her husband) let him in, but was not sure. This testimony with reference to the emergency created by the leak in the upstairs plumbing is the only evidence from which it could be inferred that Mr. Burns ever used the key to the front door of the premises in an emergency situation. On another occasion, after plaintiff’s accident, and while he was in the hospital Mr. and Mrs. Burns let themselves into the apartment by the use of the key, but the record does not show for what purpose.

After plaintiff’s family moved in, Mr. Burns repaired a downspout on the outside of the building, and put a new bolt on the trap door.

On February 15, 1959, plaintiff was in the basement working on his furnace. While doing this he decided to go upstairs to hurry up his children who were getting ready for church. He ascended the basement steps and when he reached the top of the steps put his right foot on the step board, and tried to put his left foot on the first upstairs step when the step board pulled loose and away from the wall and went from under him, with the result that he fell a distance of four feet and landed on the basement steps. As a result of this fall he received the injuries for which he sought damages in this action.

Mrs. Burns testified that she had been on the stairway a few times during the thirteen years she and her husband lived in the flat, and at those times the step board seemed like it was securely fastened to the wall. She also stated she did not notice anything insecure about the four by four. She did not warn the Underwoods of any danger in the use of the steps. Plaintiff’s wife testified that prior to plaintiff’s fall she had examined the basement steps and never noticed anything wrong with them. There is no testimony in the record by any of the witnesses that it was apparent on inspection that either the step board or four by four was insecurely fastened or maintained. Mr. Burns testified he was not familiar with the manner in which the step board was fastened, nor did he have any occasion before plaintiff fell, to inspect it. He further stated that none of his tenants had ever made any complaint about it, and he “had no excuse to do anything with it.” No repairs were made to the stairway in question before plaintiff fell.

After plaintiff’s accident, Mr. Burns repaired and secured the step board. He put a two by four board at the south end and under the step board, and nailed the step board to it. He also nailed the four by four to the basement steps, and fastened the step board to the flooring of the first floor. Since there is no issue on this appeal concerning the extent of plaintiff’s injuries, the facts with reference thereto will not be detailed.

Appellant contends that the trial court erred in setting aside the jury’s verdict and entering judgment for the defendant. In support of this assignment, it is urged that plaintiff made a submissible case on the theory that defendant retained control of the premises including the basement stairway for the purpose of making repairs. It is urged that this result follows from the proof that the landlord agreed to and did in fact, make repairs; that he retained a key which permitted entrance for that purpose; and that the landlord did in fact make repairs to the step board after plaintiff’s accident.

Appellant in support of his contention cites and relies on Tucker v. Taksel, Mo.App., 345 S.W.2d 385, a decision of this Court. In that case, plaintiff was injured by falling through an open, unscreened window of his family’s second story apartment. He was playing handball when the ball bounced against the window. He grabbed for the ball with his right hand, and tried to brace himself with his left hand against the window sill. The sill broke loose and fell outward to the ground, as did plaintiff. The sill and the outer framework to which it had been attached, after the accident contained parts that were “rotten, black and spongy looking.” Before the accident, the Tuckers noticed the window was settled at one end leaving a gap of one half inch between the sill and bottom of the screen. The apartment was furnished when the Tuckers moved in. The expense of all the utilities were included in the rent. Mrs. Bonney, defendant’s resident manager, rented the apartment to the Tuckers. She retained a key to the apartment and all other apartments in the building which she occasionally used for entering the apartments for the purpose of decorating, replacing fuses, and turning off plumbing. We found from the evidence that at the time of the renting and as part of the rental agreement, she, on behalf of defendant, contracted to repair the premises. Defendant did make all repairs inside and outside the building, including repair of furniture, plaster, plumbing, porches, and windows. Mrs. Bonney testified, “that went for the window sills or anything else.” Defendant had previously replaced a defective window sill in another apartment in the building. After plaintiff’s injury, the defendant replaced the window sill in question. On the foregoing facts, this Court held that the evidence was suf-ficent to give rise to an inference that defendant reserved partial control of the premises for the purpose of making repairs. The Court based its ruling on the fact there was an agreement to repair, retention of a duplicate key for that purpose, and the making of repairs, before and after the accident pursuant to that agreement.

The Tucker case does not rule the case at bar. The important consideration in that case was the contract to repair which was a part of the rental agreement. While no tort action can be based upon the breach of the contract, Grimmeissen v. Walgreen Drug Stores, Mo.App., 229 S.W.2d 593, 598; the retention of control which is evidenced by the terms of the letting, does create a duty on the landlord to repair, the violation of which is a tort. The rule announced in the Tucker case should have no application where there is no binding contractual obligation to repair, but merely a gratuitous promise to repair without consideration made after the agreement to rent has been consummated, or to a situation where repairs are gratuitously made after the tenant has taken possession of the rented premises. Under such circumstances, it cannot be said that the landlord has retained partial control for the purpose of making repairs.

In the case at bar, there was no promise to repair which was a part of the rental agreement. Nor was there a retention of a key to the premises for that purpose, but merely for the purpose of use in emergencies, as testified by Mrs. Burns, who was plaintiff’s witness. The repairs made both before and after plaintiff’s accident were not made in fulfillment of a duty arising from a retention of control, but in our opinion, were gratuitous undertakings on the part of tliQ landlord. In our judgment, there was insufficient evidence to justify a finding that Mr. and Mrs. Burns retained control of the premises for the purpose of making repairs. Hence, there was no breach of duty on their part upon which to base an action for damages for failure to make repairs.

It is next urged that plaintiff made a case for the jury on the theory there was a latent defect which caused plaintiffs injury. Under the law of landlord and tenant where the former conceals or fails to disclose to his tenant any condition which involves an unreasonable risk of injury to the tenant of those lawfully on the premises with the consent of the tenant, the owner is subject to liability to such persons for injury caused by said condition after the tenant has taken possession, if the owner knows or had reason to know of the condition, and the tenant is not aware of same or of the risk involved. Restatement of the Law (second) Torts, section 358, p. 243.

In the case at bar, the defect which caused plaintiff’s injury was the fact that the four by four was not properly nailed to the basement so that it pulled away from the wall, causing the step board to shift at the time plaintiff stepped upon it. There is no evidence in the record that defendant or her husband knew that the proper length nails were not used in fastening the four by four to the basement wall, nor evidence that such condition could have been discovered upon inspection. In our opinion, plaintiff failed to make a case for the jury upon the theory of latent defect known to Mr. and Mrs. Burns and not known by plaintiff.

In view of what we have hereto ruled, we are compelled to hold that the trial court did not err in sustaining defendant’s motion for judgment in accordance with her motion for a directed verdict. Such being the case it is not necessary to pass upon the other points raised by appellant directed to the action of the trial court sustaining in the alternative defendant’s motion for new trial.

The judgment of the trial court for defendant is affirmed.

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


author: DAVID R CLEVENGER, Special Judge.

text:
    Charles L. MASHBURN, Appellant, v. CHEVROLET-KANSAS CITY DIVISION, GENERAL MOTORS CORPORATION, Respondent. Charles L. MASHBURN, Respondent, v. CHEVROLET-KANSAS CITY DIVISION, GENERAL MOTORS CORPORATION, Appellant.
    No. 24249.
    Kansas City Court of Appeals. Missouri.
    Oct. 4, 1965.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 6, 1965.
    Application to Transfer Denied Jan. 10, 1966.

      Robert L. Robertson, William W. Coch-rane, Kansas City, Raymond, West & Coch-rane, Kansas City, of counsel, for appellant.
    Paul Scott Kelly, Jr., Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, for respondent.
   DAVID R CLEVENGER, Special Judge.

This is a Workmen’s Compensation case involving a final award by the Industrial Commission, in favor of Charles L. Mash-burn, Employee, against Chevrolet, Kansas City Division, General Motors Corporation, Employer and self insurer. On review, the Circuit Court of Jackson County affirmed the award of the Commission.

The Employee and the Employer each appealed and this court, upon motion, ordered the appeals consolidated.

The Referee’s finding was that the Employee sustained an accident arising out of and in the course of employment resulting in injury to his low back and aggravation of a pre-existing condition thereof; that he was entitled to compensation for permanent partial disability to the extent of twenty per cent, or eighty weeks at $42.50; that the Employee was not entitled to an allowance for healing period, and denied his claim for medical expense. This finding is at some variance with that of the Industrial Commission.

The Industrial Commission, by its final award, found from all the credible evidence that the Employee, on January 25, 1962, sustained an accident arising out of and in the course of his employment with the Employer, which resulted in an injury to the low back and aggravation of a pre-existing condition thereof, which entitled him to compensation for permanent partial disability to the extent of ten per cent, or forty weeks at $42.50 per week; that he was also entitled to a temporary total disability allowance for a healing period, limited to thirty-one days, or four and three-sevenths weeks, at the rate of $47.50 per week; and that, by reason of the Employer’s refusal to furnish treatment, Employee was required to make payment to certain institutions and persons for expenses incurred for medical treatment, with a reimbursement to the Employee as and for hospital services. The total sum of the Commission’s finding was $3,262.11.

The Employee claims that while working on the assembly line of the Employer a transfer machine turned a car frame over onto another line and, in so doing, a tie rod on the car frame came in contact with a table, and that he was compelled to jump in order to avoid being struck, and was thereby caused to fall on a slick concrete floor. The accident occurred at the plant of the Chevrolet, Kansas City Division of General Motors. The Employee, according to his own statement, sustained a “hard sit-down type of fall on the floor”. The facts surrounding the alleged accident, together with his fall to the floor as described, were corroborated by a fellow employee who was an eye witness. The foreman testified that, immediately following the alleged accident, the Employee stated to him that, as the result of his jump and fall to the floor, he had injured his back.

The Employer’s first-aid room record indicates that, on January 25, 1962, the Employee claimed he had injured his back while working on the assembly line and under substantially the same facts and circumstances as described by Employee’s testimony. The Employee was taken to Menorah Hospital on January 25, 1962, where X-rays were made of the low back. He received no treatment and was discharged.

The record indicates the Employee returned to work on January 26 and continued to work until February 23, 1962. He was then given a ten-day suspension because of a shop rule violation. He returned to work on March 12 and 13, and terminated his job on March 14 because of increased pain and disability to his low back.

On March 14, the Employee consulted his family physician, Dr. Eshelam, M. D., and also Dr. C. C. McCullough, an orthopedic specialist. X-rays were taken and a lum-bo-sacral back support was prescribed, which he wore off and on from and after that date. On March 28, he was examined and X-rayed by Dr. Joseph Lichtor, M. D., an orthopedic surgeon, who found a bilateral defect in the fifth lumbar neural arch, known as “spondylolysis”; and, that this condition had existed for a long period of time. Dr. Lichtor, in describing this condition, stated that the term “spondylolysis” is sometimes referred to as a congenital or progressive congenital condition.

The Employee, following his voluntary termination of employment, moved to Bolivar, Missouri. There, as a self-employed person, he worked in the tree trimming business and as a pest control exterminator.

The Employee testified he continued to have pain and soreness in his low back following the January 25, 1962, accident, which became progressively worse and, on occasions, affected his lower extremities. In the fall of 1963, he attended a football game and sat on the wooden bleachers. After the game he went to a cafe and, while there, sitting on a stool, the pain in his back became so severe that, upon leaving, his back seemed to “give out” on him and he put his hand on a juke box and slowly slumped to the floor. Two or three days after the cafe incident, he was taken to Menorah Hospital in Kansas City, where Dr. Lichtor performed a laminectomy of L-5, and a spinal fusion from L-4 to S-l. This operation was performed on October 8, 1963. The Employee remained in the hospital until October 16, 1963, and then returned to his home where he remained in bed for approximately three weeks, thereafter being permitted gradual ambulation.

The Employer has, at all times, denied Employee’s claim for compensation, and has denied all allegations in the claim filed. Considering the answer as filed, it is assumed that the Employer denied that an accident did occur on January 25, 1962, since, in Point I of the Employer’s brief and argument, the statement is made that in a Workmen’s Compensation case the plaintiff has the burden of proof to establish by competent and substantial evidence each and every element essential or necessary for his recovery.

The accident was reported by the Employee to the first-aid room, where a record was made confirming such accident. Since the evidence of the Employee, corroborated by an eye witness, and the Employer’s record stands uncontradicted as to the question of the accident, it follows that we should and do find that there was substantial and competent evidence upon which the Commission could base the finding that there was an accident involving the Employee while in the course of his employment.

It is evident that the Employer’s real contention in Point I of its brief concerns primarily the issue that there was no competent and substantial evidence to support the finding that the Employee sustained permanent partial disability as the result of the accident of January 25, 1962. As to this contention, the Employer urges that the Employee was involved in at least three incidents resulting in injury to his back, including the accident of January 25, 1962.

It is admitted by the Employee that, in June 1960, he had an accident which resulted in an injury to his back; that, subsequent thereto, he received heat treatments and, on several occasions, was treated by a chiropractor. He filed no claim by reason of this accident, nor is there any showing of any great loss of time as the result thereof, although the Employee does admit that from 1960 to 1962 he did, at times, have pain and soreness in his back while working on the assembly line.

A further examination of the record indicates that the Employee suffered some pain and discomfort following the 1960 incident; that, although on occasions he sought the services of a chiropractor, such pain was not of sufficient intensity to impair his ability to work on the assembly line from 1960 to 1962, or in continuing with his independent side-line business of tree-trimming. With respect to the contention that the Employee, as the result of the 1960 incident, was compelled to lose a great deal of work because of his back condition and numbness of the lower extremities, it seems rather significant that the Employer’s complete daily work record of Employee, offered in evidence, did not substantiate this important point of its defense.

We believe the evidence is to the effect the 1960 accident resulted in a very minor injury, evidenced by the fact that following the accident he continued to work on the assembly line for some two years, with only intermittent treatments for back pain. The Employee did not file a claim for compensation as the result of the 1960 incident, nor is there any substantial evidence as to any great loss of time from his work.

Let us now review the record as to the October 1963 incident, referred to as the “cafe incident”. The Employer claims that this incident could have caused the injury now claimed by the Employee. Employee denies receiving any injury from this incident, nor did the Employer offer any evidence in support of its position that this incident constituted an accident resulting in traumatic injury. Under the circumstances, we see no particular significance in Employer’s claim that Dr. Lichtor was not advised of this particular incident since, under the evidence, such incident did not result in an injury. Dr. Lichtor testified that the accident of January 25, 1962, activated and aggravated a pre-existing condition of spondylolysis in Mr. Mash-burn’s back and produced symptoms of physical findings and disability, and that, as a result of the injury received, the condition of the Employee became progressively worse, finally resulting in surgery in 1963. It is our judgment that there was produced credible, competent and substantial evidence upon which Dr. Lichtor could base a finding as to Employee’s disability and its causal connection with the accident of January 25, 1962.

In view of all the record, we do not agree with the Employer’s position that the hypothetical question addressed to Dr. Lichtor was based upon facts not supported by substantial evidence.

In the case of Garrison v. Campbell “66” Express, Inc., Mo.App., 297 S.W.2d 22, the court held that, in Workmen’s Compensation cases where the defense was that the disability claimed was due to a prior injury, such contention on behalf of the Employer is an affirmative defense and, therefore, the burden of proof of the prior injury rests with the Employer. We, therefore, hold that the Employer, in offering no proof that the 1963 incident was in fact an accident resulting in injury or additional disability, failed to carry the burden of proof of subsequent injury and the Commission had the right, and did, by its decision, properly hold that the 1963 incident was not an accident and in no way contributed to nor was it the direct result of another or second injury to the Employee.

Employer, in support of its Point I, cites Sanderson v. Producers Commission Ass’n., 360 Mo. 571, 229 S.W.2d 563. In this case, the court held:

“We must determine whether the Commission could reasonably have made its finding from a consideration of all the competent evidence (and we should set the award aside if it is clearly contrary to the overwhelming weight of the evidence)”.

This case discusses at great length the case of Scott v. Whelock Brothers, 357 Mo. 480, 209 S.W.2d 149, and also Ashwell v. United States Seed Co., Mo.App., 167 S.W.2d 950. We do not disagree with the Employer’s contention of the law as found in these cases, but state that, in our opinion, in each, the facts differ from those in the instant case.

The courts of this state have repeatedly held that, in Workmen’s Compensation cases, the Industrial Commission is the trier of the facts and, therefore, the sole judge of the credibility of the witnesses and the weight to be given their testimony. This court must sustain the Commission’s finding if it is supported by competent and substantial evidence. McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950; Stepaneck v. Mark Twain Hotel, Mo.App., 104 S.W.2d 761.

We do not agree with the Employer that there is such a great variance or conflict in Employee’s testimony before the Referee compared with that of his prior deposition as would destroy the same to such extent that it would have no probative value. Even though there is some evidence that Employee’s disability might have been caused by the 1960 accident, nevertheless there was substantial credible evidence that his disability, making it impossible for him to work with regularity, did not arise until after the accident of 1962. Therefore, the finding of the Commission that his disability arose out of the 1962 accident is supported by competent, substantial and credible testimony, and such finding should not be disturbed by an appellate court.

In Sanderson v. Producers Commission Ass’n., supra, we find the following:

“We agree with appellants’ statement it frequently happens that there is no testimony in a case other than that of the plaintiff or.claimant himself, but if from that testimony two different conclusions or inferences may be drawn as to the ultimate fact at issue, each of such conclusions or inferences being consistent with the testimony, and each inconsistent with the other, it remains for the triers of the facts to determine the issue and draw the inference and it does not become a question of law”.

Dr. Lichtor, on direct examination before the Referee, in reading from his report of August 21, 1963, made the following answer;

“My comment in summing up this examination and the previous examinations, history, physical findings, and X-rays, as follows: This man’s difficulties are due to traumatic activation of symptoms and disability of a preexisting condition of bilateral spondy-lolysis in the fifth lumbar neural arch. Defects of the neural arch, or spondy-lolysis usually occur in childhood or adolescence and usually are not productive of symptoms unless initiated by trauma. Symptoms and disability have continued for a considerable period of time in this man and he has not been able to return to his normal occupation involving heavy manual labor. Surgery may be necessary.”

Following the August 21, 1963, examination, Dr. Lichtor, on October 6, received a long distance call from the Employee, who stated that he was in extreme pain and distress and had been for several days; that he was unable to tolerate the pain. He was brought to Menorah Hospital in Kansas City, where, on October 8, Dr. Lichtor performed a partial laminectomy of L-5, with a fusion between L-4 and S-l. Upon direct examination and in answer to a hypothetical question as to whether or not he had (after a detailed statement of facts) an opinion, based upon reasonable medical certainty, if the accident of January 25, 1962, either caused the condition in Charles Mashburn’s low back, found on his examination of March 28, 1962, or whether or not the accident of January 25, 1962, activated or aggravated a pre-existing condition in Employee’s back resulting in the condition he found by that examination on March 28, 1962, Dr. Lichtor said that he did have an opinion and his answer thereto was:

“It is my opinion that the accident of 25, January, 1962, activated and aggravated the pre-existing condition of spondylolysis in Mr. Mashburn’s low back, and produced symptoms and the physical findings and the disability which I found on my initial examination of 28, March, ’62, and I have been treating him for since”.

We do not agree with Employer’s position that there was no competent and substantial evidence produced to prove that the Employee sustained permanent partial disability from the accident on January 25, 1962. The evidence as to the accident, followed immediately by the Employee’s complaint and the examination and findings of Dr. Lichtor does substantiate the position of causal connection between the injury described and the accident.

It is only by inference that the Employer has raised the question of whether or not an injury which accelerates or ag gravates a disease to a degree of disability is compensable under the Missouri Workmen’s Compensation Law. We note with interest that, as early as 1932, the St. Louis Court of Appeals, in the case of Harder v. Thrift Construction Co., 53 S.W.2d 54, held that an actual aggravation of an an existing infirmity caused by accident arising out of and in the course of the employment is com-pensable, even though the particular accident would have produced no such result in the case of a normal and healthy individual, so there can be no question as to whether or not in the instant case such an injury would be compensable. We now so hold. The legal theory expressed in this case was commented upon in the Garrison v. Campbell “66” Express, Inc., case, supra.

We next turn for consideration to Point II of Employer’s brief, wherein it is contended that the award for a healing period and allowance for medical expense both incurred in October, 1963, was not supported by competent and substantial evidence.

The position of Employer, as to this point, is that to support the final award for the healing period and medical expense, the Commission would be compelled to first find that the fall at the cafe in 1963 was directly caused by and was a direct result of the January 25, 1962, accident. The record does not indicate a “fall” at the cafe. The only evidence as to this incident came from the Employee; it was that he was suffering from pain and his back seemed to give out on him, causing him to slump to the floor. This incident confirms the evidence of Dr. Lichtor that, from the date of the 1962 accident, the Employee’s condition became progressively worse, finally requiring surgery.

We are fully aware that the Employee cannot rely upon any testimony produced by Employer to supply the required causal connection, but, since we have already found that the Employee met this test, we further find that the evidence of Dr. Zu-ber does, in fact, support Dr. Lichtor’s evidence on this point. Dr. Zuber examined Employee on behalf of Employer November 18, 1963, following Employee’s surgery, and again in March, 1964. Dr. Zuber’s answer to a hypothetical question upon cross examination was as follows:

“Q. Well, doctor, in what manner would you alter your opinion if it were also a fact that Mr. Mashburn did apply to his company and asked for medical assistance and then later did go to his own family physician and Dr. McCullough for help, and that time has been established on the medical help about the middle of March, following the January 25th incident, and that the demand made on the company was some time in this interim?
“A. I would have to alter my answer in this respect. Whereas previously stated that the incident of January 25, 1962, because of the reasons I outlined to you in my opinion had nothing to do with the condition that he presented himself to Dr. Lichtor with in March, taking into account the additional history which you gave me, stating that the condition became worse specifically following this incident of January, 1962, and assuming numerous propositions that he had to eventually terminate his employment, I would have to find a definite connection between the incident and his disability that he had when he presented himself to Dr. Lichtor that it was causative, but that it was a condition which had altered a pre-existing disorder in his low back.”

The law charges the Employee with the burden of establishing causal connection between the accident and injury. The proof necessary to meet such burden, we believe is suported by the testimony of Dr. Lichtor, who, upon his first examination, stated his opinion was that the Employee’s back condition was the direct result of the trauma received in the accident of January 1962. We do not agree with the Employer that the Employee received little treatment, when the testimony, standing uncontra-dicted, was to the effect that beginning March 28, 1962, to the date of the operation in 1963, the Employee was seen by Dr. Lichtor on some fifteen occasions, where he was observed, X-rayed, received treatment, and was given medical advice concerning the limitation of his work and activities.

It is our opinion that, taking into consideration all of the testimony as a whole, the award for a hearing period and an allowance for medical expense was a proper finding, and was supported by competent and substantial evidence. We, therefore, rule against Employer as to its Point II.

The third and final point relied upon by the Employer is that the Commission erred in ordering Employer to pay medical expense incurred by Employee without authorization of the Employer and without order from the Division of Workmen’s Compensation, treatment being more than ninety days after the accident, and that there was no competent and substantial evidence to support a finding that the Employer failed or refused medical treatment, or, if so, such finding was contrary to the overwhelming weight of the evidence. In support of its contention on this point, the Employer takes the position that the record evidence does not prove a waiver by it of its rights created by Section 287.140 RSMo 1949, V.A.M.S. In passing upon this issue, we must again examine the record as to the facts offered by Employee supporting his claim for medical expense when so incurred by him beyond the ninety-day statutory period without special order from the Industrial Commission. The Employee’s responsibility as to this issue is the same as on any other issue upon which he relies to support his claim under the Workmen’s Compensation Law, and the evidence must meet the same test and be reviewed by us in the same light as any other issue.

It is most apparent from the Employee’s testimony that he was denied medical assistance when he was told by the regular nurse that she couldn’t diagnose what was wrong and that he “see a doctor”. This, in our opinion, was not only a refusal but an invitation, by a company employee in charge of the first-aid room, for Mashburn to 'seek a doctor of his own choice. Following this refusal, the Employee was examined on March 14, 1962, by Dr. McCullough, M. D., and, according to Employee, he made a claim through his then Employer for sickness and/or accident against the Metropolitan Life Insurance Company, under the Group Insurance Program of General Motors. This claim, “Exhibit P”, discloses a statement concerning the injury of January 25, 1962, and was signed by the Employee, so that the company was first advised of the claim of the Employee on the very day of the accident, followed by his request to the nurse for medical assistance. Certainly, the Employer was put on notice, not only of the injury to the Employee, but of the fact of his claim as to disability. See Hammett v. Nooter Corp., Mo.App., 264 S.W.2d 915.

Employer, in further support of its contention as to Point III, cites the case of Kopolow v. Zavodnick, Mo.App., 177 S.W.2d 647. The facts in this case show that, after receiving the first treatment by the company doctor, the employee thereafter sought an independent physician of her own choice and did not again make a request of the employer for medical assistance. In this case, Mashburn sought medical aid, but was told to “sec a doctor”. It was only after being denied medical aid that he went to a doctor of his own choice. We are convinced that, under the evidence, the Commission was justified in finding that there was a waiver by the Employer of its statutory rights as created by Section 287.140 RSMo 1949, V.A.M.S.; Hammett v. Nooter Corp., supra; Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306; Evans v. Chevrolet Motor Co., 232 Mo.App. 927, 105 S.W.2d 1081. Considering all the testimony, we find that there was competent and substantial evidence to justify the finding of the Commission against the Employer as to its Point III and that such finding was not contrary to the overwhelming weight of the evidence.

The first point in Employee-Appellant’s brief concerns the rule that the Workmen’s Compensation Law is to be liberally construed and this rule applies to the question of the amount of the award of compensation. Although we agree with the Employee as to the rule, its application still rests with the Commission; it being its sole duty, as the trier of the facts, to determine the amount of the award, if any. Its finding, if based upon competent and substantial evidence and not being against the overwhelming weight of the evidence, must be affirmed by this court.

What we have said heretofore disposes of all points in Employee-Appellant’s brief except subparagraphs a andb, under Point III. This poses the issue that the award of the Commission was insufficient as to permanent partial disability because the calculations seemed to be based upon the theory that the case was one of second injury. This case was neither submitted nor tried on a theory of “second injury”, and we do not agree that, merely because the Referee made inquiry of Dr. Zuber concerning his opinion as to the extent of aggravation, it necessarily follows the Referee or the Commission made their findings based upon an improper calculation.

We have considered the case of Gegg v. St. Louis Independent Packing Company, Mo.App., 271 S.W.2d 223, involving injury to an employee resulting in aggravation of a defect of the neural arch and believe, on its facts, it is not applicable to the case before us. A review of the other cases cited by the Employee present facts which we also consider not applicable to the case before us. Therefore, we are not convinced that we should disturb the Commission’s final award in this case.

We find that the Commission’s final award is supported by competent and substantial evidence, and is not against the overwhelming weight of the credible testimony. The judgment of the circuit court is affirmed.

All concur.


author: PALMORE, Judge. STEWART, Judge

text:
    Edward L. MACKEY, Adm’r of the Estate of Gregory Burkhead, Deceased, Appellant, v. Homer SPRADLIN et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Modified on Denial of Rehearing Dee. 17, 1965.

      Richard P. Watts, Luther M. Roberts, Louisville, for appellant.
    John G. O’Mara, Louisville, for Spradlin & Mullins.
    Joseph E. Stopher, Boehl, Stopher, Graves & Deindoerfer, Louisville, for Mr. Softee of Louisville, Sinkhorn & Simmons.
   PALMORE, Judge.

At about 5 :45 P.M. on April 27, 1961, an ice cream dispensing truck stopped on the north side of Knopp Avenue, a 2-lane street in a residential neighborhood of suburban Louisville, for the purpose of selling ice cream cones and the like. At once a number of children gathered around, including 7-year old Gregory Burkhead, who lived across the street south of and almost directly opposite the place where the ice cream wagon was standing. As he attempted to re-cross the street homeward bound with his ice cream cone Gregory collided with a passing dump truck and was killed.

The administrator of Gregory’s estate brought this suit for wrongful death against the respective operators and owners of the ice cream wagon and the dump truck and appeals from a judgment entered pursuant to a verdict directed in favor of all the defendants at the conclusion of plaintiff’s evidence.

Knopp Avenue is a dead-end street leading eastwardly from Grade Lane, outside the city limits of Louisville. It is lined on both sides by small houses, interspersed by at least one store building, a grocery. The main traveled portion of the street consists of an asphalt surface a little under 18 feet wide, bordered on each side by a narrow shoulder and then a ditch. There are no sidewalks. Mail boxes and newspaper delivery tubes are scattered up and down the way on the shoulders between the pavement and the ditches.

"The ice cream wagon had traveled down to the end of Knopp Avenue, turned around, and started back westwardly toward Grade Lane, making several stops along the way. It was equipped with flashing lights and a ringing bell and was decorated with pictures of sundaes and milk shakes and two lights shaped like ice cream cones. It was a large box-like vehicle, six feet nine inches wide, over eight feet high, and 17 feet long. Two operators were aboard, Simmons driving and Sinkhorn selling the wares. Sink-horn was in charge.

There were six children in the Burkhead family. Gregory, the youngest, his brother Robert, 12, and one or more of the others were in back of their home playing ball. Linda Sue, 13, an older sister, was inside studying her school work. When they heard the bells of the ice cream wagon Linda Sue approached her mother for some money to buy an ice cream cone and Robert came into the house for the same purpose. Mrs. Burkhead gave Linda Sue enough money to buy five cones and instructed her and Robert to tell the rest of the children to stay in the yard. After Linda Sue and Robert had crossed the street Mrs. Burk-head stepped to the front door and observed that the other children were in the front yard, whereupon she returned to her normal pursuits within.

Sinkhorn conducted the sales operation in this particular instance out of the right-hand side of the ice cream wagon. Several children were present, gathering on or about the north shoulder of the street. There was conflicting evidence as to whether the right wheels of the vehicle were on the pavement or on the shoulder; however, it makes no great difference. Nobody noticed Gregory’s movements, but it is clear that he crossed the street and got an ice cream cone from someone. At the instant of the tragedy Linda Sue was still at the serving window and Robert was with her. Linda Sue and Robert testified that they were unaware of Gregory’s presence until they heard screams, and discovered him lying in the middle of the street. The only acknowledged eyewitness was Mullins, driver of the dump truck.

Mullins gave the investigating officers a statement to the effect that he was proceeding eastward on Knopp Avenue for the purpose of making a delivery somewhere near the end of the street. As he passed the stopped ice cream wagon to his left, the child ran from behind it into the side of the dump truck in front of its left rear dual wheels. Mullins stopped as soon as he could, at a point 60 feet beyond the boy’s body, which lay some 12 feet east of the ice cream wagon. According to this statement, the dump truck was traveling at a speed of five miles per hour(!) at the time of the accident. There was no other evidence concerning its operation. The officers found the truck’s brakes in good order. They did not ask Mullins whether he had sounded his horn. Gregory’s ice cream cone was found lying on top of the spring in front of the left rear dual wheels.

Simmons, driver of the traveling ice cream parlor, was learning the route from Sinkhorn, the regular operator, preparatory to becoming his relief driver. At the time of the accident Simmons’s attentions were directed toward Sinkhorn, behind him, and he did not see the dump truck as it approached.

These are the essential facts on which the trial court determined that none of the defendants had breached a duty of care toward the victim of the accident. There was nothing in the evidence to rebut the presumption that the child himself was not legally accountable for his actions. Cf. Baldwin v. Hosley, Ky., 328 S.W.2d 426, 430 (1959).

With respect to the dump truck it is obvious that the operator was under a duty of extreme caution as he passed by the ice cream wagon. The question is whether the evidence adduced by the plaintiff was sufficient to justify an inference that Mullins failed in any way to observe the required standard of care and, if so, that such omission was a proximate cause of the little boy’s death.

It is contended that in the exercise of ordinary care Mullins should have stopped (or at least that a jury could reasonably so find), as he would have been required by statute to do if the ice cream wagon had been a school or church bus. Cf. KRS 189.370. The propensity of young children to dart or run into the street must, of course, be anticipated by motorists who see or by the exercise of ordinary care could see them near the edge .of the street Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897, 899 (1944); United Fuel Gas Co. v. Friend’s Adm’x, Ky., 270 S.W.2d 946 (1945). In Kentucky Power Co. v. Thompson, Ky., 335 S.W.2d 915, 918 (1960), a case in which the driver of a truck traveling on a roadway 12 to 13 feet in width could see two young girls walking with their backs to him along a narrow margin off the left edge of the road, it was observed that the driver, upon noticing the girls “in a position of possible peril, would have been under a duty either to stop his truck before reaching them or to move by them so carefully and slowly as to reduce the chance of striking them almost to zero.” We think the same principle applies in this case because, although Mullins did not in advance see the particular child who ran out into the street, he could not have failed to see the group of children gathered at the ice cream wagon and, in the exercise of ordinary care, to anticipate that some child momentarily hidden from view by the bulk of the ice cream wagon might suddenly emerge from behind it. It was his duty, we believe, either to stop his truck as it came abreast of the rear end of the ice cream wagon or to move by it so carefully and slowly as to reduce to a minimum the chance of collision with one or more of the children.

The fact that with good brakes and the best efforts of the driver it required 60 to 72 feet to bring the truck to a halt refutes the driver’s assertion that he was proceeding at only five miles per hour and, in our judgment, would support an inference that he was moving at a speed that was excessive under the circumstances of the case.

We are unable to say that the child’s running into the truck, as distinguished from the truck’s striking the child head on, is dispositive on the question of proximate cause. In most but not all cases it has been held under such circumstances that speed could not have been a proximate cause. See, for example, Jordon v. Clough, Ky., 313 S.W.2d 581, 584 (1958), and Hatfield v. Sargent’s Adm’x, 306 Ky. 782, 209 S.W.2d 306, 308 (1948). Hoskins v. Hoskins, Ky., 316 S.W.2d 368 (1958), in which a child ran from a school yard into the rear wheel of a passing truck on a public street, is distinguishable in that there was no obstruction in or next to the street. Presumably the child would have run into the truck had it been parked next to the curb, because there was nothing to prevent her seeing it as she dashed toward the street. On the other hand, in Eichstadt v. Underwood, Ky., 337 S.W.2d 684, 686 (1960), a case in which an elderly pedestrian crossing at an intersection walked into the rear wheel of an automobile which in making a turn had appeared suddenly in her path, it was held that the evidence gave rise to “a factual issue as to whether the automobile * * * appeared so suddenly in front of, and so close to appellee that her previously initiated forward movement carried her involuntarily into the * * * car.” On the same theory, if Mullins’s truck was moving too fast as it passed the ice cream truck at close quarters, its speed and sudden emergence from a concealed position raise a factual issue as to whether the child had an opportunity to observe and react to it in time to check his own momentum. If he did not, the speed of the truck could be found to have been a proximate cause of the accident. Moreover, it can hardly be denied that the motion of the truck was a factor in the severity of injury inflicted by the collision. As it was, Mullins admitted he saw the boy run into the side of the truck. Had he been traveling at a crawl, as he should have been under the circumstances of the case, a jury might reasonably conclude that he could have stopped almost instantly and that the child would not have been killed.

We realize the closeness of this point but are of the opinion that the circumstances thus far shown, without further explanation or elaboration in the form of defensive testimony, are sufficient to raise a permissive inference of negligence on the part of the truck driver as a proximate causal factor in the accident. Hence it was error to direct a verdict in favor of the truck driver and his employer under the state of the evidence at the close of plaintiff’s case in chief.

Whether the operators of the ice cream dispensary violated any duty of care toward the child presents a novel question in this jurisdiction. For a discussion of decisions from other states in kindred situations see annotation, “Liability of vendor or huckster attracting children to street to child injured by another automobile,” 74 A.L.R.2d 1056, and cases therein cited. See also Sidders v. Mobile Softee, Inc., Ohio App., 184 N.E.2d 115 (1961); Baker-Evans Ice Cream Co. v. Tedesco, 114 Ohio 170, 150 N.E. 745, 44 A.L.R. 430 (1926); Maloney v. Howard Johnson Inc., 5 A.D.2d 1015, 174 N.Y.S.2d 257 (1958); Borden v. Daniel, 48 Tenn.App. 314, 346 S.W.2d 283 (1960), Mead v. Parker, 221 F.Supp. 601 (E.D.Tenn.1963), and Vought v. Jones, 205 Va. 719, 139 S.E.2d 810 (1965); all of which can reasonably be compared in some respects and distinguished in others.

Much argument has been devoted to the question of whether the ice cream wagon was stopped in violation of KRS 189.450 and, if so, whether such violation was a proximate cause of the accident. We find it immaterial, because in either event it is our conclusion that as a matter of law the operators of this vehicle failed to exercise reasonable care to prevent the accident.

“When an act is negligent if done without reasonable care, the care which the actor is required to exercise to avoid being negligent * * * is that which he, as a reasonable man, should recognize as necessary to prevent the act from creating an unreasonable risk of harm to another.” Restatement of Torts, Negligence, § 298.

“A negligent act may be one which: * * * (b) creates a situation which involves an unreasonable risk to another because of the expectable action of the other, a third person, or a force of nature.” Id., § 302.

“An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person or an animal in such a manner as to create an unreasonable risk of harm to the other.” Id., § 303.

This is not, of course, an “attractive nuisance” case. Nevertheless, it is invested with much the same policy considerations the attractive nuisance theory was designed to recognize and satisfy. Those same basic considerations are embodied in the above quoted sections of the Restatement of Torts. The differences are superficial. If one who maintains a dangerous condition on his own premises can be held liable to a child trespasser, why should not one who knowingly creates a dangerous condition elsewhere be likewise responsible to a child he realizes is likely to become involved in it? Indeed, it seems to us that in the latter instance the creator of the hazard is in a less defensible posture than the owner of premises on which a trespass must be committed before injury can occur. In this particular type of situation the danger is enhanced by the sense of haste that is purposely aroused in the children of a neighborhood by the tinkling of bells and flashing of lights heralding the imminent arrival of an attraction that will stay but a moment and be gone unless they come at once. The responsibility of one who knowingly provokes into action the natural recklessness of irresponsible children ought surely be proportionate to the degree of danger he thereby creates.

Common sense and the most minimal regard for humanity suggest that one who intentionally attracts small children to a place in or so close to a street or highway that there is danger of their being struck by passing traffic should be under a duty to maintain a lookout for such traffic and, if he observes or in the exercise of ordinary care should observe a vehicle approaching close enough to constitute an immediate hazard, to warn the children present in the immediate area of the attraction or make such other reasonable effort to prevent their being injured as may be necessary in the circumstances. This in our opinion is what a reasonably prudent person would do, and it is because the ice cream vendors admit they did not keep any lookout whatever that we say they were negligent as a matter of law.

The negligence of Mullins in operating the dump truck (if it be found that he was negligent) was not an independent act superseding the negligence of the ice cream vendors, because it was within the realm of reasonable foreseeability. Restatement of Torts, Negligence, § 447; Hines v. Westerfield, Ky., 254 S.W.2d 728 (1953); Roberts v. Taylor, Ky., 339 S.W.2d 653, 658 (1960); Mackey v. Allen, Ky., 396 S.W.2d 55 (decided May 7, 1965). The gist of their negligence is that they should have realized the danger of just such an accident, with or without some degree of negligence on the part of the passing motorist.

Among the numerous decisions of this court to which reference is made in the briefs, the one cited in behalf of the ice cream vendors as most nearly in point is Winders’ Adm’r v. Henry Bickel Co., 248 Ky. 4, 57 S.W.2d 1009 (1933). In that case a contractor repairing a street in Louisville blocked off the south two-thirds of the width of River Park Drive at a point midway between 31st and 32d Streets. A six-year old child going home from school located on River Park Drive two blocks west of the place where the work was being done was hit and fatally injured by a west-bound truck in the north third of the street as she ran from the south to the north side of the street in order to go around the obstruction. In a suit by her administrator against the contractor and the truck driver a directed verdict for the contractor was approved by this court in an opinion apparently premised on the theory that the action of the contractor in blocking the sidewalk and street was a “prior and remote” but not a proximate cause of the accident.

As we have already pointed out, to break the chain of proximate causal connection an intervening action must be one that is not reasonably foreseeable by the antecedently negligent actor who is thereby relieved of responsibility. Whatever reservations we may have with respect to the soundness of Winders’ Adm’r v. Henry Bickel Co., supra, certainly it is distinguishable in degree. Perhaps Bickel should have foreseen that children might cross the street and get run over in the process of going around his obstruction, but at least he did not solicit them. In this case the children were, in substance, consciously and directly invited into an area of danger, and it does not seem unreasonable to expect of the inviters a proportionately higher degree of foresight.

The admitted inattention of the operators of the ice cream wagon is conclusive of their negligence, from which it follows that the directed verdict in favor of them and their employer was erroneous. If upon another trial the evidence in this respect is substantially the same, Simmons and Sinkhorn may be held liable as a matter of law.

The judgment is reversed with directions for a new trial.

STEWART, Judge

(dissenting).

I dissent from the opinion because I believe it sets forth principles on the subjects hereinafter discussed which are so contrary to the established law that trial courts and members of the bar will be confused as to what the law is, or how this Court will react in the future, when these subjects come up for a determination.

Although the driver of the dump truck testified he was traveling at a speed of five miles per hour, and there is no rebutting evidence on this point, the opinion asserts there was an “inference” he was proceeding at an excessive rate of speed because “the best efforts of the driver” required 60 to 72 feet in which to stop the truck. It is my view this statement is based upon mere conjecture.

In referring to the speed of the dump truck appellant admits in his brief: “There was nothing to indicate excessive speed at the time of the accident.” He then proceeds to argue that the truck should have stopped. The opinion wobbles around with this idea and finally comes up with the suggestion that the driver should have lowered the speed of the truck to an irreducible minimum.

Obviously the driver must move his dump truck along at some time. The truck in fact had already passed the position where the child was concealed behind the ice-cream wagon when (and we use the language of the opinion) “the child ran from behind it into the side of the dump truck on front of its left rear dual wheels.” I do not believe the speed of the dump truck played any part in, and consequently was not a proximate cause of, the accident. Nor do I believe we can speculate that the injurious consequences would have been less severe if the truck had been moving more slowly.

The principles announced in the following cases would seem to be controlling in respect to the facts presented: Hoskins v. Hoskins, Ky., 316 S.W.2d 368; Jordon v. Clough, Ky., 313 S.W.2d 581; Hatfield v. Sargent’s Adm’x., 306 Ky. 782, 209 S.W.2d 306; Lieberman v. McLaughlin, 233 Ky. 763, 26 S.W.2d 753; Knecht v. Buckshorn, 233 Ky. 329, 25 S.W.2d 727.

We come now to the opinion’s holding that the act of stopping the ice-cream wagon on the street gave rise to a condition that imposed a duty on those in charge of it “to warn the children present in the immediate area of the attraction or make such other reasonable effort to prevent their being injured as may be necessary in the circumstances.”

This Court has never passed on the exact set of facts adduced by the evidence in this case. A recent Ohio case that is very much in point is Sidders v. Mobile Softee, Inc., Ohio App., 184 N.E.2d 115. The petition alleged that the defendant corporation was operating on the public streets of Xenia, Ohio, at night, a brightly illuminated ice-cream truck, equipped with a bell and loudspeaker; that a seven-year-old girl was thereby induced to cross the street from her home; and that, as she was undertaking to return home, she was struck by a passing automobile, because her view of the approaching automobile was obstructed by the ice-cream truck. The trial court sustained a demurrer to the petition. Upon an appeal the action of the trial court was upheld, the appellate court stating:

“The defendant is accused of being a sort of modern Pied Piper and as such responsible for any and all mishaps to its young customers. It is not an insurer of the safety of its patrons. Nor is it charged with a violation of law. The operation of an ice cream vending truck attractive to children is admittedly not a nuisance. ^ ^

At common law, or in the absence of a prohibitive statute, a motorist can stop his car whenever and wherever he wants to. This is incidental to the right to travel. See 8 Am.Jur.2d, Automobiles and Highway Traffic, sec. 816, p. 373.

The Court of Appeals of Maryland in Bloom v. Good Humor Ice Cream Co. of Baltimore, 179 Md. 384, 18 A.2d 592, passed on the exact question raised by the causation issue in the case now before this Court. In that case the defendant’s ice-cream truck was parked about eight feet from the right-hand curb of a public thoroughfare in the City of Baltimore. The infant plaintiff, a boy ten years of age, crossed the street and purchased some ice cream. As he was returning to the other side he was struck by a passing car. Suit was filed against the Good Humor Ice Cream Company. A recovery was denied; an appeal was taken. The Court of Appeals of Maryland held that the acts charged to the defendant-appellee were not the proximate cause of the plaintiff-appellant’s injuries and found for the defendant-appel-lee. That court said on that point:

“From the alleged facts in this case, it appears very clear that the accident to the appellant was brought about entirely by reason of the appellant leaving the ice cream truck, walking behind it to a place between the truck and the east sidewalk, and the sudden appearance of the automobile. That act on the part of the appellant, and the approaching automobile, were the separate and intervening causes of the accident. * * * ”

The Henry Bickel Company case, the facts concerning which are set forth in some detail in the opinion, had this to say on the question of the immediate cause of the death of the six-year-old child involved, who was struck by a truck driven by one Bell:

“The question narrows down to this: Can the Henry Bickel Company be held responsible for the death of this child, who was not struck or injured by any of the obstructions it placed in the street, and the most that can be said against it is, it created the conditions that caused her to have to cross to the north side of the street, in doing which she was struck and killed by an independent agency, to wit, the truck owned and driven by Bell. The answer is, ‘No.’ * * * ”

Continuing, the Court made this observation which applies in a most particular way to the esoteric generalities that are formulated to support the opinion. That case stated at page 1010 of 57 S.W.2d:

“If once we pass the immediate cause, we enter a limitless field of speculation. Lord Bacon puts it this way: ‘It were infinite for the law to consider the causes of causes and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.’ ”

The issue of proximate cause presented in the Henry Bickel Company case is exactly the same as the issue of proximate cause presented in this case. The only possible way that case is distinguishable from the instant one is that the child was not attracted to the scene by a vehicle purveying ice cream.

The opinion admits, however, that the case at bar is not an attractive nuisance case. Nevertheless it follows attractive nuisance principles in arriving at the conclusion it reaches. I call attention to Burkett v. Southern Belle Dairy Co., Ky., 272 S.W.2d 661, where the matter of attractive nuisance in this type of case is laid to rest, and where, incidentally, the ice-cream truck involved was parked on the public street. See also Ice Delivery Company v. Thomas, 290 Ky. 230, 160 S.W.2d 605.

I would affirm the judgment.

MONTGOMERY and MOREMEN, JJ., join me in this dissent.

      . The position of the parked vehiele undoubtedly was a proximate causal factor in the accident, but the fact that it was there in violation of the law would have significance only if the accident in question were held to be within the scope of what the statute was intended to prevent. Cf. footnote 7 to Cottrell v. Martin A. Ceder Co., Inc., Ky., 376 S.W.2d 536, 538 (1964).

      . Compare Restatement of Torts, Negligence, § 339.