author: HIGGINS, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Alphonse J. BARBEAU et al., Exceptions of Joseph E. Ritter, Archbishop of St. Louis, Respondent.
    No. 51104.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 10, 1966.

      Robert L. Hyder, Melvin Englehart, Jefferson City, for appellant-plaintiff.
    Bernard J. Huger, Walter H. Pollmann, William O. Cramer, St. Louis, for respondent-defendant.
   HIGGINS, Commissioner.

State Highway Commission petitioned to condemn certain lands for U. S. Highway 66 and Mackenzie Road in St. Louis County, Missouri, and among the lands thus condemned were portions of Resurrection Cemetery, title to which is held by respondent, Joseph E. Ritter, Archbishop of St. Louis. Commissioners awarded respondent $28,246 and both parties filed exceptions which were tried to the court without a jury. The court made findings of fact and conclusions of law and entered judgment for respondent for $37,388, from which State Highway Commission appealed. Appellant conceded that $21,225 was due respondent and the amount in dispute is thus the difference of $16,163 between the conceded sum and the judgment, which amount gives us jurisdiction. Section 477.040, V.A.M.S.; State ex rel. State Highway Commission v. Turk, Mo., 366 S.W.2d 420, 421 [1],

The parties stipulated: That the cemetery contained 325 acres prior to the taking; that the date of taking was December 8, 1958; that the taking amounted to 15,750 square feet (0.36 acre); that of the total taking 13,005 square feet are located on the west side of Mackenzie Road and 2,750 square feet are located at the intersection of Mackenzie Road and Highway 66; that an additional 1,036.5 square feet at the intersection was appropriated for a sight distance easement in which no structure or planting could exceed three feet in height.

It is obvious that the stipulated amounts of 13,005 and 2,750 do not total 15,750 and, in making computations, defendant’s witness and the court say they used 15,774 square feet as representative of the total taking; however, their computations prove out at the stipulated amount, 15,750.

According to Manley Rice, Jr., Administrator for Catholic Cemeteries of St. Louis, Resurrection Cemetery was founded in 1928 and over 16,000 burials had taken place there. As of March 31, 1961, the cemetery had sold about 1,260,000 square feet of burial space (905,573 square feet sold prior to December 8, 1958), none of which was in Section 1 because the ground there was desirable and reserved for future sale. Of the land sold, 44,800 square feet were sold in fiscal 1954; 45,596 in fiscal 1955; 33,529 in fiscal 1956; 35,442 in fiscal 1957; 35,564 in fiscal 1958; and 29,303 in fiscal 1959, a year in which another cemetery offered a new section for sale and a policy of double burials and reduced grave size was adopted. Although there are some 62 numbered sections in the cemetery, approximately 99 per cent of the burials are in Sections 11, 12, 13, 14, 15, 16, 19, 20, 20A, 20B, 22, and 40. The cemetery does not employ salesmen or offer commissions for sales. In 1931, 78 interments were made in the cemetery and this figure rose to 370 interments in 1940, to 720 in 1958, and to 733 in 1960. Sales will increase considerably because the cemetery is young and salesmen could double and triple sales in a short time. Resurrection is a memorial-type cemetery rather than a garden cemetery.

Mr. Rice identified several exhibits showing the terrain, entrance, and planning of the cemetery. The land taken was all a part of Section 1, the 2,750 square feet being a triangular parcel at the cemetery entrance at the intersection and the 13,000 square feet being a strip 15 feet wide extending some 860 or more feet from the entrance southwardly along Mackenzie Road. Section 1 is approximately 860 feet long and varies in width from 50 feet to 100 feet. The ground there is fairly level and “rolls away to the creek * * * at the lower (south) end. It is adjacent to completed and developed roads, has accessibility for burial.” It contains little timber, the trees there having been placed there for landscaping. Some filling had been accomplished at the low end of Section 1 but it was not fully developed for burial purposes in that corner markers would not be placed until the section was to be offered for sale. Fill dirt is acquired from each burial and filling is a continuous cemetery operation.

Section 2 is the only adjacent section to Section 1 and lies immediately west. Sections 1 and 2 are prime burial sites and are the' best or among the best sections in the cemetery due to their physical characteristics and location near the entrance. A limited number of grave plots had been sold in Section 2 prior to 1958. In 1956, two 400 square feet lots were sold in Section 2 at a gross price including endowed care of $3,500 and a net price of $2,100 each, a net land price of $5.25 per square foot. In 1954, 800 square feet were sold there at $7.50 per square foot gross and $4.50 net. In 1951, 858 square feet were sold at $6.87 gross and $5.87 net. Sales in Section 2 prior to 1951 showed: 1939, 133 square feet at $2.25 gross, $1.80 net; 1936, 200 square feet at $1.90 gross, $1.40 net.

Mr. Rice testified that all the area taken was usable for cemetery purposes and was a potential grave area. The strip along Mackenzie Road would accommodate 390 grave spaces and the triangular area would hold 83 spaces, a total of 473 grave spaces. The location of these spaces was shown by a plat with spaces laid out similar to the platting of Section 11 along Highway 66, and the plat showed spaces placed within one foot eight inches of the west edge of the road easement. The taking created a new edge for the cemetery along Mackenzie Road and, to the extent of the new edge, an amount of burial ground has been lost equal to the strip taken.

Prior to the taking the main entrance to Resurrection Cemetery was at the intersection of Mackenzie Road and Highway 66, and it was marked by two limestone pillars about 12 feet high which supported a chain link fence gate. There were roadways 20 to 25 feet wide and the entrance was landscaped with shrubbery. Mr. Rice valued the loss of these improvements at $2,000 and estimated the cost of reconstruction at $4,000. He testified that the area taken for sight distance easement at the intersection was also lost to burial purposes because the provision against structures and shrubs over three feet in height precluded the erection of monuments and screening shrubbery. The taking moved the entrance site southward on Mackenzie Road to where it is no longer visible from the intersection. The new entrance and drive uses 3,090 square feet of the 15,750 square feet taken from Section 1, and it divides Section 1. In the relocation of the entrance plaintiff removed the pavement on 5,480 square feet of the roadway leading into the cemetery from the original entrance. Mr. Rice did not consider it usable for grave space because it was some distance from any roadway, contained no walks, and part of the 5,480 square feet is in the sight distance easement.

Arthur R. Betz, a certified public accountant and an accountant for Resurrection Cemetery since 1951 or 1952, testified as to development costs and their proration on a basis of gross square footage in each section of the cemetery as it develops. According to him, the cemetery obtained a 3.84 per cent rate of return on its investments in the fiscal year ending March 31, 1958, a 3.7 per cent rate of return in the year ending March 31, 1959, a 2.8 per cent return in 1950, and the average rate of return for the years 1957, 1958, 1959, was 3.5 per cent. By the use of Inwood Tables for computing the present worth of money to be received later, he made computations representing the damages sustained by the taking of 15,750 square feet of land valued at $5.25 and $3.50 per square foot discounted for periods of 20 years, 15 years, 10 years, 30 years and 40 years, at discount rates of 3.5 per cent and 6 per cent.

Walter O. Angel, landscape architect for the cemetery since 1952, testified that the value of trees and shrubs lost to plaintiff’s taking was $2,000.

Robert C. Walsh, superintendent of Resurrection Cemetery since 1960, testified that the area near a cemetery entrance is the prime and most desirable area of a cemetery; that the location of the gate after the taking was less desirable than the original entrance; and that the ground formerly paved in the original entrance had some use for burial purposes at the disadvantage of long carrying distance.

M. W. Christman, president of Christ-man Realty Company and general manager of Sunset Burial Park in St. Louis County, Missouri, testified that the ground taken from Resurrection Cemetery was higher than surrounding area and therefore more valuable than lower ground, and he valued the area taken at $5.00 per square foot. He valued the original gate location higher than the relocated gate because of its location on an intersection. In his own cemetery, Sunset Burial Park, graves are located four feet from the boundary line. It was his opinion that graves along a highway should be located ten to twenty feet from the highway. He said also that when an appropriation of land on the edge of a cemetery occurs, the burial line has to move deeper into the cemetery and burial space is lost to the extent the line is moved.

Phil A. McDermott, general manager of Memorial Park Cemetery in St. Louis County, Missouri, testified that the more valuable cemetery land is located close to the entrance on the higher ground, as was the land appropriated here; that similar land in his cemetery would be worth $4.50 to $5.00 per square foot, and in his cemetery interments are permitted within a foot of the line. He valued the land taken from Resurrection Cemetery at a net price of $5.00 per square foot.

Arthur A. Schneider, a real estate appraiser for 35 years, called by plaintiff, testified that the stone entrance had a value of $3,000; that the trees and shrubbery appropriated were worth $900; and that the land taken had a reasonable value of $3.50 per square foot. In his opinion, it would take 20 years to sell all of Section 1 and he assumed 6 per cent, “the going rate of interest,” as his discount rate. He also used the Inwood Tables to find present worth and his computation resulted in a land value of $17,325 and, by adding the figures for gate and trees, a total damage of $21,225. In arriving at his value per square foot of $3.50, he averaged the $5.25 which he found to be the price of sales in Section 2 with sales in other parts of the cemetery. The witness recognized that St. Louis County had multiplied in population, that Catholics are usually buried in their cemeteries, and that there were 30 times as many interments in Resurrection in 1958 as there had been in 1929.

From the decree we abstract the following findings of fact:

“3. The actual ground taken consists of 15,750 square feet * * *.
“9. Almost all the ground taken * * * is taken from Section 1 * * *. The ground * * * not located in Section 1 consists mainly of the area * * * by the original entrance and the immediate surrounding area.
“10. * * * The section in the cemetery-most comparable * * * to Section 1 is Section 2, which lies immediately to the west of section 1.
“11. Both Sections 1 and 2 are prime burial ground and among the better sections in the cemetery.
“12. There have been no interments as yet in Section 1.
“13. Sales were made in Section 2 in years previous to 1958 * * *, a net cost for the ground only * * * $5.25 per foot.
“18. All the property taken is potential grave area.
“20. After the taking * * * a new edge was created for the cemetery and the amount of burial ground has been lost equal to the quantity of land taken.
“23. * * * The 5,490 square feet from which the asphalt was removed is not desirable for grave space because there are no walks in the area and the area is some distance from the nearest road, thus involving carrying caskets over the turf.
“24. The 1036.5 square feet involving the sight easement * * * is located * * * (in) a critical area, the ground * * * is almost lost for burial purposes * * *
“27. Sales will increase considerably in the future because the cemetery is relatively young, because the area has multiplied in population and because Catholics are normally buried in a Catholic cemetery, of which Resurrection is one. * * * Section 1 * * * will probably be sold out within thirty years.
“28. The actual rate of return on * * investments * * * by the cemetery in 1957, 1958, and 1959 was approximately 3.5%.»

And we abstract the following conclusions of law:

“1. The 325 acres * * * known as Resurrection Cemetery * * * is land dedicated ' * * * to cemetery purposes and as such is available and adaptable for 'cemetery purposes and for no other purposes whatever.
“2. Because the part * * * taken * * * is an integral part of the whole tract, the property taken has no market value in the ordinary sense and the normal rules with respect to the measure of damages in condemnation cases do not apply.
“3. Under these circumstances the appropriate method of finding values * * * is to determine the value of the burial lots or grave sites taken by applying a unit value based upon the average sales price * * * in the adjoining used section of the cemetery, less the reasonable cost of development, sales, maintenance, administration, perpetual care and any other expense affecting its value. The unit value then determined, multiplied by the number * * * taken, less a reduction to present worth for the deferred realization over the selling period, will constitute a guide in determining the value of the property taken. This formula is approved as a proper guide in fixing the value of land taken from a cemetery.
“4. Section 2 is of sufficient similarity with Section 1 to have bearing on the * * value of Section L
“5. Because of the sales made in Section 2, the general topography of Section 1, the highness of ground in Section 1, its proximity to the main gate, its general desirability to the public * * * and the fact that a new edge has been created all along Mackenzie Road by the taking, the fair value per square foot * * * is $5.25; this figure entirely excludes any value based on endowed care, development, maintenance or administration.
“6 The actual rate of return * * * 3.5% is fair and reasonable and should be used here * * *.
“7. Because of the growth of the cemetery * * * 30 years is fair and reasonable in determining the value of the land taken.
“8. Using the Inwood Tables for deferred realization, which both sides relied upon * * *, the present value of the 15,774 (15,750) square feet taken, based on a unit value of $5.25 per square foot, at 3.5%, over * * * 30 years, is $29,452.00.
“9. The 1,036.5 square feet * * * sight easement is *' * * lost for cemetery purposes * * * and its value, based on the same time, interest and unit value as above is $1,936.00.
“10. The reasonable value of the gate * * * is $4,000.00.
“11. The trees and shrubs taken * * * are reasonably worth $2,000.00.”

Upon these findings and conclusions the court entered its judgment for defendant for $37,388.

Since the parties have presented their positions as to the type of review to be accorded in this case, we restate what we said in State ex rel. State Highway Commission v. Tighe, Mo., 386 S.W.2d 115, H7[3]: “ * * * upon appeal of this court-tried condemnation case the general rules apply and the review in this court is necessarily de novo or ‘upon both the law and the evidence as in suits of an equitable nature.’ Sup.Ct.Rule 73.01(d). * * * The appellate court is admonished that ‘The judgment shall not be set aside unless clearly erroneous.’ ”

Appellant, State Highway Commission, contends that the judgment is erroneous because the court erred: A. In finding the value of land appropriated to be $5.25 per square foot; B. In finding the land appropriated sufficient to constitute 473 grave sites; C. In finding 30 years to be a fair and reasonable time for disposal of all remaining land suitable for grave sites; D. In finding 3.5% to be a fair and reasonable rate of return for determining value.

Appellant concedes that the land taken in this proceeding has no market value in the ordinary sense and that the usual rule for the measure of damages in condemnation should not be applied.

We have not had a case in Missouri dealing with the measure of damages for the taking of land used for cemetery purposes. The problem has arisen in a few jurisdictions and is well-stated in Graceland Park Cemetery Co. v. City of Omaha, 173 Neb. 608, 114 N.W.2d 29, 31[3,4] : “There are types of property that are not bought and sold on an open market and consequently do not have a reasonable market value within the rule that the fair market value is the price which property will bring when offered by a willing seller to a willing buyer, neither being obligated to buy or sell. The fair market value of property implies proof of sales of similar property in the community as a means of fixing the value of the property taken. When the property is such that evidence of fair market value is not obtainable, necessarily some other formula for fixing the fair value of the property must be devised. This is true, as we view it, of such properties as school yards, church yards, college campuses, buildings under construction, and cemeteries. 1 Orgel on Valuation under Eminent Domain, s. 38, p. 175. We hold, therefore, that in the taking of land used for cemetery purposes the measure of damages is not the fair market value of the land for the simple reason that such property has no fair market value. Whenever the property is of such character and nature that it has no fair market value in the ordinary sense, its value for the uses and purposes to which it is being devoted and to which it is peculiarly adaptable may be shown. Idaho-Western Ry. Co. v. Columbia Conference of Evangelical Lutheran Augustana Synod, 20 Idaho 568, 119 P. 60, 38 L.R.A.,N.S., 497; City of Chicago v. Farwell, 286 Ill. 415, 121 N.E. 795. One text writer refers to the measure of damages in such a case as the determination of the specialty value to the owner. Jahr, Eminent Domain, Valuation and Procedure, s. 82, p. 116.” That court proceeded, 1. c. 32[5], to develop a rule for such cases: “An appropriate method for finding the value of land taken, which was being used for cemetery purposes, is to determine the value of the burial lots or grave sites taken by applying a unit value based on the average sales price per lot or grave site in the adjoining used section of the cemetery, less the reasonable cost of development, sales, maintenance, administration, perpetual care, and any other expense affecting its value. The unit value thus determined, multiplied by the number of lots or grave sites taken, less a reduction to present worth for the deferred realization over the selling period, will constitute a guide to the jury in determining the value of the property taken. St. Agnes Cemetery v. State, 3 N.Y.2d 37, 163 N.Y.S.2d 655, 143 N.E.2d 377, 62 A.L.R.2d 1161.”

We approve this formula as a proper guide in fixing the value of land taken from a cemetery as in our case. This is the formula stated in the trial court’s conclusion of law 3, set out above, and appellant concedes the formula to be proper, its disagreement going only to the manner of application of the formula and to the determination of unit value, grave sites, selling period, and rate of discount.

Appellant contends (A) that the court did not obtain an average price per unit as required by the rule. The argument is that the court failed to consider the average sale price in the adjoining section, Section 2, and that it did not consider the average over the entire cemetery.

The square foot was chosen as the unit for appraisal of damages for the loss of unused burial ground and that choice is supported by St. Agnes Cemetery v. State of New York, 3 N.Y.2d 37, 163 N.Y.S.2d 655, 143 N.E.2d 377, 381[7-9]: “* * * the weight of authority supports the rule that if the land taken is an integral though unused portion of a well-established cemetery, that is, a portion of a cemetery in which there have been no interments and no sales of graves, the property should be appraised on the basis of its value for cemetery purposes. The fact that there were no burials in the condemned or consequentially damaged parcels is proof of damage to the cemetery (Cementerio Buxeda v. People of Puerto Rico, 1 Cir., 196 F.2d 177, certiorari denied 344 U.S. 876, 73 S.Ct. 170, 97 L.Ed. 678, supra). The quantum of damage depends on the value of the plots. The unit of appraisal may be the value per square foot of the burial plot or the value of the burial plot as a whole (Finkel, Condemnation Appraisal of a Cemetery [Appraisal Journal, July, 1955, American Institute of Appraisers, pp. 379-386], supra; Cementerio Buxe-da v. People of Puerto Rico, supra; Elmhurst Cemetery Co. of Joliet v. Commissioner of Internal Revenue, 300 U.S. 37, 39, 57 S.Ct. 324, 81 L.Ed. 491).” As in our case, in Cementerio Buxeda v. People of Puerto Rico, 1 Cir., 196 F.2d 177, 179, “ * * * the condemned parcel was at the frontal part of the cemetery property, its most valuable part as appears from the record. It was an integral part of the whole and was dedicated to cemetery purposes and was restricted to that use and no other use * * * ”; and we said in City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 850 [26, 27] : “Sales of land of like character and similarly situated to that in question, not too remote in point of time, are admissible on the question of value as an aid to the jury in determining the damages to which the owner is entitled. City of St. Louis v. Kisling, Mo.Sup., 318 S.W.2d 221. The importance of other sales depends not only on their proximity in point of time but also upon ‘similarity in location, and in the uses to which the properties may he adaptable,’ * * *. It is for the trial judge to exercise a wise judicial discretion in determining whether the two parcels are of sufficient similarity to have some bearing on the question of value.” See also State v. Lincoln Memory Gardens, Inc., 242 Ind. 206, 177 N.E.2d 655, 659[6].

Respondent’s evidence showed Section 1 and its adjoining section, Section 2, to possess similar characteristics as prime burial ground in the “frontal” area of the cerne-tery; comparative sales in Section 2 were for net prices of $5.87 per square foot in 1951, for $4.50 in 1954, and for $5.25 in 1956, and witnesses Christman and McDer-mott gave their opinion that the land taken was among the most valuable and worth $5.00 per square foot. Plaintiff’s witness, Schneider, arrived at $3.50 net per square foot by averaging the property taken with sections in the cemetery other than the adjacent section, and he considered those sections and the land taken as “average.”

The rule in the cases cited does not require the court to consider burial sites which are dissimilar in value and character to the land in question, and City of St. Louis v. Vasquez, supra, limits the comparison of sales to those “not too remote in time.” The trial judge resolved the conflict in the testimony in favor of a unit value of $5.25 per square foot, and our review indicates that such finding should not be disturbed.

Appellant contends (B) that the evidence is insufficient to sustain the court’s determination that the land appropriated would constitute 473 grave sites. The argument is that in order to obtain 473 grave sites in the land taken it would be necessary to place 390 grave sites within one foot eight inches of the cemetery line on Mackenzie Road and to put 83 spaces in the triangular parcel would require putting some spaces outside of the original entrance. The trial court’s finding in this respect is that “all the property taken is grave area.” Respondent had evidence which was disputed by appellant to show that the area taken was the best part of the cemetery and that a cemetery uses all its ground for cemetery purposes. The significance of the court’s finding is that the area taken, i. e., 15,750 square feet, could accommodate 473 grave sites and not that such sites were located there. The important thing is not whether graves could or could notj or would or would not, be placed at the boundary or edge of the cemetery, but rather that the loss of the property taken was a loss of that much land available for cemetery purposes demonstrated in terms of lost burial sites.

Appellant also argues that it was error to consider the 1,036.5 square feet sight easement as lost for cemetery purposes because the cemetery would have use of the area except that nothing could be maintained or grown there over three feet in height. The evidence showed that this area had been landscaped prior to the taking to provide a screen against Highway 66 and business properties on the highway. The height restriction makes this impossible as well as the erection of memorials over three feet in height in this memorial cemetery, and the area is thus lost to cemetery purposes.

Appellant also argues that the court erred in considering that the part of the 15,750 square feet taken lying outside the original entrance had the value of $5.25 per square foot as found by the court because it would not have been used for burial purposes. This argument is akin to that made above in respect to the number of potential grave sites lost; it is in part answered by the discussion there and it is clear from the evidence that the entrance area is a prime and essential use of the cemetery property, loss and relocation of which causes the loss of ground otherwise available for burials.

Appellant argues finally on his contention with the finding that the 5,480 square feet from which pavement was removed was not desirable grave space. This area, of course, was not a part of the taking and no damages were allowed in respect to it by the court. The evidence was that Mr. Rice did not consider the area usable for grave space because of its distance from any roadway and its lack of walks, and Mr. Walsh felt any use of the area was at the disadvantage of long carrying distance. This would justify the court’s finding, and we are not directed by plaintiff to any evidence to the contrary or of special benefit in respect to this area.

Appellant’s contention (C) is that the court erred in choosing a time factor of 30 years for the disposal of the cemetery. The argument is that if the average sales per year in the cemetery were divided into number of square feet of available burial ground the length of time required to sell the remainder of the land or the economic life of the cemetery would be 325 years. An examination of the court’s finding and conclusion shows at once the fallacy of this argument because the court found and determined only that Section 1 would probably sell out within 30 years and that 30 years is a fair and reasonable time to use in applying the formula for determining the damages to land in Section 1. In making the determination the court had for consideration the growth of the cemetery, the growth of population in the area served, the attraction of the cemetery to the Catholic population, that Section 1 would be sold out quickly because of its desirability and, finally, and most persuasive, the testimony of appellant’s witness Schneider who stated that Section 1 would be disposed of in 20 years, a figure which would be more favorable to respondent than the 30 years determined by the court.

Finally, appellant contends (D) that the court erred in determining 3.5% to be the fair and reasonable rate of return for the purpose of determining value. Respondent’s evidence was that the cemetery obtained a 3.84% return on its investments in the fiscal year ending March 1958; 3.70% return in the year ending March 1959; and 2.8% return in 1950. The average actual return for 1957, 1958, and 1959 was 3.5%, and Mr. Betz used this figure in the computations which he initiated. The court characterized the 3.5% as actual rate of return and determined it to be a fair and reasonable rate to use as a discount figure in applying the damage formula. The only other percentage suggested was that of 6% assumed by appellant’s witness Schneider. 3.5% is consistent with current yields and conditions in safe investment of funds, and in St. Agnes Cemetery v. State, supra, and Mount Hope Cemetery Ass’n v. State of New York, 11 A.D.2d 303, 203 N.Y.S.2d 415, New York courts used 2% as the rate of discount in applying the same formula used here.

Although the disparities are not as great as in some cases, our statement and discussion point up the existence of conflicts in the testimony and, necessarily, therefore, “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Civil Rule 73.-01(d). The court determined that the formula should contain the factors of $5.25 per square foot unit value, 3.5% discount rate (Inwood coefficient .3563) for determining the present value of deferred realization and a 30-year period, which, combined, make the value of each $5.25 unit $1.87; the damages thus found for the taking of 15,750 square feet amounted to $29,452; and in the same way the court determined the damages for the 1,036.5 square feet sight easement at $1,936. The court found also that the value of the gate taken was $4,000, and the damage to trees and shrubs was $2,000, neither of which figures are questioned on appeal.

The above amounts constitute the judgment for $37,388 entered in favor of respondent. This court on its review anew finds the facts and the damages as the trial court found them, and accordingly affirms the judgment.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Paul H. ROSE, Appellant, Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent.
    No. 51207.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 10, 1966.

      Morris A. Shenker, Murry L. Randall, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
   HIGGINS, Commissioner.

Paul H. Rose, an osteopath in Her-mann, Missouri, had his license to practice the healing arts revoked by the Respondent Board and the revocation was affirmed by the circuit court. He alleged in his petition for review and contends on this appeal that the board’s procedure under Section 334.100, V.A.M.S., violated Article I, Section 10 of the Missouri Constitution and the Fourteenth Amendment to the United States Constitution in that the same agency both prosecuted and decided the case and such procedure deprived him of due process of law. We have jurisdiction because constitutionality of a legislative act has been thus challenged, Article V, Section 3, Constitution of Missouri 1945, V.A.M.S., and respondent’s motion to transfer for lack of jurisdiction is overruled.

On October 29, 1963, a written notice was served on Paul H. Rose personally, which directed him to appear at a hearing before the State Board of Registration for the Healing Arts on November 23, 1963, in Jefferson City, Missouri. Appellant appeared in person and by counsel and a hearing was conducted pursuant to and on the five charges contained in the notice: (1) that from November 1, 1962 to February 18, 1963, he was addicted to habitual use of narcotic drugs; (2), (3), and (4) that on November 6, 1962, November 26, 1962, and December 31, 1962, he executed a false document in connection with the practice of his profession in that he executed a prescription for narcotic drugs purportedly for the use of a named patient without intending that said narcotic drugs would be used by or for the benefit of the said patient; and (5) that he solicited patronage by causing a certain advertisement to be published in the Hermann, Missouri, newspaper; and whether, if such charges or any of them be true, his license to practice should be revoked.

On January 25, 1964, the board entered its findings of fact, conclusions of law, and order. It found that Paul H. Rose had committed the acts as described in charges (2), (3), (4), and (5) of the notice; concluded that the commission of such acts constituted unprofessional and dishonorable conduct within the meaning of Section 334.-100, V.A.M.S., and ordered revocation of the license of Paul H. Rose on charges (2), (3), (4), and (5), and each of them. Charge (1) was withdrawn. Appellant’s petition for review came on for hearing November 2, 1964, and on December 7, 1964, the circuit court affirmed the order of revocation.

At the hearing before the board, Ernest H. Hall, agent in charge of the St. Louis branch of the Federal Bureau of Narcotics, testified that he and agent Edwin L. Stamm interviewed Paul H. Rose on March 1, 1963, at his office in Hermann. The visit was a result of a call from Clarence Berlener, a druggist in Hermann, who had some suspicions in connection with Rose’s narcotic prescriptions, and was also a result of a letter received from Mr. Hailey (John A. Hailey, Executive Secretary of respondent). The interview lasted for an hour and a half or two hours during which Rose stated that he began using drugs in November 1962, and that by the latter part of November he was using approximately two tablets of Dilaudid, %6th grain, together with two c.c. of an injective narcotic solution about twice a day. He continued using narcotics through December, January (1963), and February, but not over two to three injections per day. In January he had curtailed his use of drugs to the point he felt he was not an addict and not in need of treatment. He mentioned the use of morphine and atropine in addition to Dilaudid which is a derivative of opium. Rose also stated that he obtained the drugs in the names of various patients; that they were obtained by prescriptions, all of which were filled at Berlener’s Rexall Drugstore, and that fifty per cent of all his narcotic prescriptions were for his personal use. During the interview Rose surrendered his narcotics supply and his federal narcotics license and executed a letter which recited “* * * failure to comply with the Federal Narcotics Laws and regulations by diverting portions of my narcotic stock to my personal use * * The testimony of agent Stamm was substantially the same as that of agent Hall.

Clarence Berlener testified that he was the only pharmacist and operated the only drugstore in Hermann. He began filling narcotics prescriptions executed by Rose in November 1962, and “I showed him the narcotics that we had and if he needed it for a patient or if he had to go like these night calls, these cancer patients, if he wanted to take it in his bag, if he would come and write a prescription for a person, for a legitimate amount, he could get it. That is, a dose.” He got to a point in January 1963 when he would not fill any more prescriptions for Rose. The witness identified three prescriptions: Exhibit 5A dated November 6, 1962, executed by Rose for (Virginia) Bossman for five 2 c.c. ampules of Demerol (a narcotic) which Rose took with him; Exhibit 5B dated November 26,1962, executed by Rose for Betty Hoeman for one 30 c.c. ampule of morphine and atropine picked up by Rose; Exhibit SC dated December 31, 1962, executed by Rose for Stuart LeBrell for 40 tablets of Dilaudid, %6th grain, picked up by Rose.

Mrs. Virginia Bossman testified that Dr. Rose had treated members of her family as early as October 1962, but that the first time he treated or prescribed for her was January IS, 1963. As to the charge (2) prescription, she was asked: “Q. Now, directing your attention to about the 6th of November, last year, 1962, I will ask you if you had any medicines prescribed for you at that time, or if you took any medicines on the recommendation of a physician? A. No, I did not.”

Mrs. Betty Hoeman testified that she became acquainted with Dr. Rose in October 1962 when he came to practice in Hermann with her employer, Dr. Jeter. She admitted a dislike for Dr. Rose. Dr. Rose treated her for facial infection with a penicillin drug in December 1962, and gave her an injection for immunity to infectious hepatitis on November 21, 1962. As to the charge (3) prescription, she was asked: “Now, directing your attention to the 26th day of November, or let’s say several days thereafter, during that period of November 26 and the few days immediately following, did you receive any medication of any kind during that period, let’s say from the 26th of November until the 30th of November? A. At that time I believe I was taking the oral penicillin tablets. I just can’t recall exactly whether I had stopped taking them or whether I still was, but that was the only — do you mean outside of the regular thyroid tablets that I take every day? That was a pre-existing condition, Dr. Rose had nothing whatsoever to do with that. Q. All right. Did you receive any injections during that period? A. No.”

Stuart LeBrell, the patient mentioned in the charge (4) prescription, was asked: “Q. Have you ever seen Dr. Rose in a professional capacity, have you ever seen him in a situation where you have been a patient? A. No. Q. Have you ever gone to Dr. Rose for any kind of medical advice or treatment? A. No, none whatsoever. * * * Q. Have you ever gotten a prescription from him, any medication? A. No, nothing professionally from him at all.”

Mrs. Stuart LeBrell testified also as to the charge (4) prescription and was asked: “Q. * * * Has Dr. Rose ever brought any drugs or medication to your home for use of yourself ? A. No, sir. Q. To your knowledge, has he ever brought any drugs or medication of any kind to your home for use of anyone in your family? A. No, sir.”

Dr. Rose denied that he used drugs and stated that he placed unused portions of patients’ prescriptions in his bag for supplies. He stated that he understood this from Dr. Jeter and Mr. Berlener to be the way both for handling prescriptions and obtaining bag supplies. He said that the Bossman prescription was for bag supplies ; that the Hoeman prescription was to relieve her infectious sinus condition; and that the Stuart LeBrell prescription was intended for Mrs. LeBrell, in which case he gave her twenty tablets and put the remainder in his bag.

Appellant’s first point is his contention that the proceedings under Section 334.100, V.A.M.S., deprived him of constitutional due process. He argues that because the charges were instituted, heard, and determined by the board, “(t)he Board thus acted in both prosecution and judiciary functions,” and that “(n)o procedure could so clearly breach due process.”

Responsibility and authority in connection with refusal, suspension, and revocation of licenses of physicians and surgeons have been delegated by the General Assembly to the State Board of Registration for the Healing Arts by Section 334.100, V.A. M.S., and that section also sets forth the grounds and procedure for such actions. It provides in pertinent part:

“1. The board * * * may, on its own information or on complaint of any persons, * * * revoke or suspend a license * * * for like causes as hereinafter provided. * * * (t)he following specifications shall be deemed unprofessional and dishonorable conduct within the meaning of this section: * * *
“(5) Addiction to a drug habit; * * *
“(8) Knowingly making, or causing to be made, * * * a false statement in any birth, death or other certificate or document executed in connection with the practice of his profession;
“(9) Soliciting patronage in person or by agents or representatives, or by any other means or manner, * * *;
“2. At least twenty days prior to the date set for any hearing before the board for the revocation or' suspension of license, the. secretary shall cause written notice to be served personally upon the accused * * *. The notice shall contain an exact statement of the charges * * *. The board may receive and consider depositions and oral statements, and shall cause stenographic reports of the oral testimony to be taken and transcribed, * * *. If a majority of the board is satisfied that the licentiate is guilty of any of the offenses charged, the license shall he revoked or suspended * * *.
“3. Any person whose license is revoked or suspended * * * shall have the right to have the proceedings reviewed as provided by law for the review of decisions, rules and regulations of administrative officers and bodies existing under the constitution and laws of this state.”

Respondent in this case has complied with the requirements of the law in that it initiated a complaint as authorized, gave written notice to the accused more than twenty days before the hearing date, which notice contained specifications of charges which the General Assembly has designated as causes for revocation, held a hearing pursuant to such notice, in which hearing evidence was taken and preserved, and made a determination as directed by the statute. The statute makes specific provision for judicial review of the proceedings and appellant secured such review in the circuit court of the county of his residence. A previous statute from which this section and procedure are derived, Section 7336, RSMo 1919, was applied to circumstances similar to this case, and the board revoked the license of a physician for a ground specified in the statute. The statute and procedure were held by the United States Supreme Court to afford due process, the court saying: “The due process clause does not guarantee * * * any particular form or method of state procedure. Its requirements are satisfied if he has reasonable notice, and reasonable opportunity to be heard and to present his claim or defense, due regard being had to the nature of the proceedings and the character of the rights which may be affected by it. * * * The procedure authorized by the Missouri statute, as it was applied by the Board, satisfied these requirements,” Missouri ex rel. Hurwitz v. North, 271 U.S. 40, 42, 46 S.Ct. 384, 385, 70 L.Ed. 818, affirming State ex rel. Hurwitz v. North, 304 Mo. 607, 264 S.W. 678; and we have held that Sections 536.100 and 536.140, V.A. M.S., under which this case was reviewed provide an adequate method of judicial review for all cases which must be contested in a hearing in the agency before a decision is made, and “(d)ue process is satisfied if there be * * * an administrative hearing subject to judicial review,” State ex rel. Leggett v. Jensen, Mo., 318 S.W.2d 353, 358 [3]; and that is to say that simply because the administrative agency initiates the charge and then tries it does not, alone and of itself, vitiate the proceedings, the courts holding that due process is accorded despite such procedure, where judicial review is provided. Hohreiter v. Garrison, 81 Cal.App.2d 384, 184 P.2d 323, 328 [5]; Board of Medical Examiners v. Steward, 203 Md. 574, 102 A.2d 248, 252 [7]; Hammers v. Board of Fire & Police Commissioners, 10 Ill.App.2d 218, 134 N.E.2d 647, 651 [1]; Berry v. Alderson, 59 Cal.App. 729, 211 P. 836, 838 [3]; Tarr v. Hallihan, Ill., 30 N.E.2d 421, 422 [1-3]; Pipe Trades, Inc. v. Rauch, 2 Ill.2d 278, 118 N.E.2d 319, 326 [7],

Appellant relies on Abrams v. Jones, 35 Idaho 532, 207 P. 724, 727 [4, 5], where the court, in a proceeding to enjoin a license revocation, regarded the “dual role of the dental examining committee as both prose-utor and judge” as “repugnant to the spirit of American law.” That holding was rejected as dictum in Idaho Mut. Ben. Ass’n v. Robison 65 Idaho 793, 154 P.2d 156, 160 [10], where the specific contention was that the statute denied due process because it permitted the board having charge of unemployment compensation to function as “prosecutor, jury and judge.” The court held such circumstance did not deprive a person of his constitutional right to an impartial tribunal, because “(t)he board is not in the true sense of the word an adversary.” See also State v. Kouni, 58 Idaho 493, 76 P.2d 917, 922-923. Other cases cited by appellant are distinguishable because they are situations of obvious unfairness: In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942, involved a conviction for criminal contempt committed in a secret “judge-grand jury” proceeding in which the convicting judge was a witness to, and the party offended by, the act of contempt; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, involved a situation where the police judge had a direct pecuniary interest in the conviction and fine assessed because he was paid only from a fund derived from such fines; Wong Yang Sung v. McGrath, 339 U.S. 33, 35, 41 [II], 70 S.Ct. 445, 450, 94 L.Ed. 616, held only that the Federal Administrative Procedure Act had as one of its purposes the curtailing of “embodying in one person or agency the duties of prosecutor and judge,” and required the Immigration Service to adhere to the provisions of the Act; Amos Treat & Co. v. Securities and Exchange Comm., 113 U.S.App.D.C. 100, 306 F.2d 260, held that a member of the Commission was disqualified to judge a case in which he participated in a manner adverse to the accused’s interest prior to the member’s appointment to the Commission, and the Commission had denied a requested hearing on the matter of disqualification in the face of a prohibition against so acting; Atchison, Topeka and Santa Fe Railway Co. v. United States, D.C. Ill., 231 F.Supp. 422, held it would violate due process if an administrative agency was permitted without notice to the other party to reopen its hearing of a matter being reviewed in court in order to improve the agency’s position before the court; Sandahl v. City of Des Moines, 227 Iowa 1310, 290 N.W. 697, held that a park overseer was denied a fair hearing where the Commission, prior to the hearing, made a formal finding of guilt which was an essential element of the case, and sought his indictment by a grand jury on the same matter to be considered in the hearing; in Hanna v. Board of Aldermen, 54 R.I. 392, 173 A. 358, three of six aldermen conducted an investigation and made findings of fact and recommendations of removal of a police chief and then sat on the hearing on the charges —such hearing was held unfair; Reardon v. Dental Commissioner, 128 Conn. 116, 20 A.2d 622, overturned suspension of a dentist’s license where, contrary to the enabling statute, members of the agency investigated the charge, were the sole unsworn witnesses at the hearing, and had formed opinions of guilt prior to the hearing.

Contrary to the above cases, this case does not show any of the board members to be personally interested in any way in the revocation of appellant’s license. Nor is any such interest or the formation of opinions claimed. None of the members participated in the case prior to the hearing except to authorize the notice to issue and the notice recites only that information concerning the doctor’s conduct had been “received” by the board and that a hearing would be conducted to determine if “such charges, or any of them, are true * * None of the board members were challenged, and when it appeared that one member had had a physician-patient relation with one of the witnesses against appellant, an opportunity was given appellant for the interrogation of that member and the offer was declined. These circumstances belie even an appearance of unfairness leading to a denial of due process in our case.

In addition, the cases have held that even if the hearing board is possessed of prior knowledge of the matters in hearing, necessity dictates that the only board authorized to hold the hearing must proceed. This situation was discussed in Brinkley v. Hassig, 10 Cir., 83 F.2d 351, 357 [9-11], where Dr. Brinkley attempted to enjoin enforcement of his revocation which had been ordered on unprofessional conduct known to the members of the board prior to hearing and upon which some had expressed themselves: “Assuming such preconceived prejudice, what is the answer? The statute provides but one tribunal with power to revoke a doctor’s license, just as the Supreme Court of Kansas is the only body with power to disbar a lawyer. If such powers may not he exercised if the members of the board or court are prejudiced, then any lawyer or doctor who commits an offense so grave that it shocks every right-thinking person, has an irrevocable license to practice his profession if he can get the news of his offense to the court or board before the trial begins. That will not do. The commendable efforts of the medical and legal professions to raise the standards of their professions by cleaning their own houses cannot be set at naught by any such rule of law.

“From the very necessity of the case has grown the rule that disqualification will not be permitted to destroy the only tribunal with power in the premises. If the law provides for a substitution of personnel on a board or court, or if another tribunal exists to which resort may be had, a disqualified member may not act. But where no such provision is made, the law cannot be nullified or the doors to justice barred because of prejudice or disqualification of a member of a court or an administrative tribunal.” See also Board of Medical Examiners v. Steward, supra; Mayor of City of Everett v. Superior Court, 324 Mass. 144, 85 N.E.2d 214, 219 [13, 14]; In re Reno, 57 Nev. 314, 64 P.2d 1036, 1041 [8]; Winning v. Board of Dental Examiners, 114 Cal.App. 658, 300 P. 866, 868 [4, 5],

Appellant argues also that our new Administrative Hearing Commission Act, Sections 162.252, et seq., Laws 1965, S.B.No. 284, effective October 13, 1965, is authority suggesting that the procedure of this case deprived him of due process of law. Such Act, however, was not in force during these proceedings; and, although it may provide desirable additions to agency hearing procedures, it does not void proceedings lawfully conducted prior 'to its enactment.

Appellant’s claim that the procedure under Section 334.100 was a denial of due process is denied.

Appellant in Point III also claims denial of due process in failing to force agent Hall to comply with a subpoena duces tecum; however, his petition for review charges only that the “Board erred in quashing the subpoena * * Agent Hall was served with a subpoena duces tecum commanding him to bring all books, records, and documents relating to Dr. Rose, Dr. Jeter, and Mr. Berlener, and to include all files and investigations, order forms, and prescriptions relating to Dr. Rose. He produced less than the complete file and an omitted item was his report of his interview with Dr. Rose which he read and from which he refreshed his recollection prior to testifying. The report was requested at the hearing for the purpose of cross-examining agent Hall.

Appellant concedes in his brief that “this Court has refused to require the production of police reports for such purposes (State v. Aubuchon, Mo., 381 S.W.2d 807, 813, 815),” but desires to argue further that to refuse to produce them is a denial of due process under Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed. 2d 1103. Appellant presented only a charge of error to the circuit court as opposed to one of due process and we do not review beyond that claimed error. Appellant does not demonstrate how the requested document would impeach the witness’ testimony and, under such circumstances, no abuse of discretion in refusing to require production of the document was shown. State v. Aubuchon, Mo., 381 S.W.2d 807, 814 [11].

Appellant’s Point II charges that the notice failed to allege sufficient facts and that the evidence failed to prove sufficient facts upon which to revoke his license because the specifications and proof do not constitute unprofessional or dishonorable conduct or grounds for revocation under Section 334.100, V.A.M.S.

Charge (2) is that appellant executed a false prescription and it reads:

“(2) That on or about the 6th day of November, 1962, in the County of Gasconade, State of Missouri, you (Paul Harón Rose, D.O.) executed a false document in connection with the practice of your profession, in that, at said time and place, you executed a prescription for narcotic drugs, to-wit: 5 ampules of Demerol, 100 milligrams per cubic centimeter, purportedly for the use of Mrs. Virginia Bossman of Her-mann, Missouri, without intending that said narcotic drugs would be used by or for the benefit of said Virginia Bossman.” Except for dates, drugs, and patients’ names, charges (3) and (4) are in the same language.

We have previously set forth the pertinent part of Section 334.100 by which the legislature expressly made knowingly making a false statement in any document executed in connection with the practice of the profession unprofessional and dishonorable conduct for purposes of revocation or suspension of the offender’s license. Appellant argues that his actions in executing the prescriptions in evidence could not be found to be dishonorable or unprofessional conduct because the element of knowledge is not charged. We recognize that knowledge is a necessary element in this proceeding and we find the element present in these charges. Each charge is to the effect that appellant executed a document, i. e., a prescription, which purported on its face to be for narcotics for the person named, and that such representation was false because appellant did not have the intention that the person named use or have the benefit of the drug. The word knowingly is in common usage and means only “with awareness, deliberateness or intention,” Webster’s Third New International Dictionary, and “ ‘Content’ is the purpose or design with which an act is done.” State v. Harris, Mo., 313 S.W.2d 664, 670 [5]. With such meanings applied to this case it is apparent that appellant was charged with executing prescriptions for persons at the same time intending that such persons not receive the item so prescribed. Appellant could not perform such an act without knowing that he was doing it, State v. Toombs, 324 Mo. 819, 25 S.W.2d 101, 108 [11], the matter of knowledge being supplied by his intention that the represented recipient not receive the drug, and he thereby knows the prescription to be false. The charge could hardly be expressed more exactly because it would be redundant to say appellant “knowingly did not intend” instead of “did not intend,” which necessarily embodies knowledge.

Appellant would make himself innocent of wrongdoing because of the advice and local practice he attributes to Dr. Jeter and Mr. Berlener that this was the way to obtain drug supplies for his bag. A reference to the statute shows that it is not the obtaining of drugs which is proscribed by the statute but is, rather, the matter of executing false documents irrespective of motive which constitutes the unprofessional and dishonorable conduct for which the board is authorized to and has seen fit to order revocation.

Our statement of facts from the record shows unmistakably that there was substantial and competent evidence to warrant the board’s findings that the prescriptions described in charges (2), (3), and (4) were knowingly falsely executed documents, and the board, in ordering revocation as authorized by the statute, obviously weighed and rejected appellant’s version of his innocence, all of which requires an affirmance of the order of revocation.

We have discussed charges (2), (3), and (4) together because they are identical except for those differences previously noted. Proof of any one of them was sufficient to sustain the order revoking appellant’s license and it is thus unnecessary to extend this opinion with a discussion of charge (5). Hughes v. State Board of Health, 348 Mo. 1236, 159 S.W.2d 277, 280 [12],

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri at the Relation of Daniel V. O’BRIEN, Prosecuting Attorney of St. Louis County, Missouri, Respondent, v. Lawrence K. ROOS, Supervisor of St. Louis County, Missouri, et al., Appellants.
    No. 51394.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 10, 1966.

      Daniel V. O’Brien, Pros. Atty., St. Louis County, Richard E. Crowe, Sp. Asst. Pros. Atty., Clayton, for respondent.
    Donald J. Stohr, St. Louis County Counselor, Thomas W. Wehrle, Associate City Counselor, Morton I. Golder, Asst. County Counselor, Clayton, Norman C. Parker, Special Counsel, St. Louis, for appellants.
   PRITCHARD, Commissioner.

The Prosecuting Attorney of St. Louis County, Missouri, was successful in the court below upon his petition to have declared invalid upon constitutional grounds and statutory conflict Ordinance No. 3188 of that county. The ordinance purports to fix criminal and civil case fees of constables serving the Magistrate Courts, and to require civil litigants to make a cash deposit for costs therein. The judgment of the court, in addition to declaring the ordinance invalid, enjoined defendants from collecting and charging fees for the services of constables as prescribed by the ordinance.

The first question presented is whether relator may maintain this suit. Appellants in their first point contend that he may not upon the ground that the State of Missouri is not affected by the enactment of the ordinance; and that relator is not the real party in interest in this cause, and has no capacity to raise the issue of the validity of the ordinance, nor the authority or power to institute and prosecute this action.

Appellants argue that Ordinance No. 3188 in its fixing of fees for constables does not affect any property rights or pecuniary interest of the State of Missouri, and that the increase of the cost of litigation in the Magistrate Courts is purely a local matter and in no way directly affects the public health, safety and welfare of the State of Missouri. Appellants say further that if, however, the state were affected by the ordinance, as concerning the public policy of the State of Missouri, and not St. Louis County alone (as found by the trial court), then the issue is of such broad expanse that the only officer entitled to proceed in the matter is the Attorney General.

Section 56.060, among other things, provides, “Each prosecuting attorney shall commence and prosecute all civil and criminal actions in his county in which the county or state is concerned, * * We rule that relator has the capacity, on behalf of the state, and authority to raise the issue of the validity of the ordinance, and the power and authority to institute and prosecute this action.

The state is directly concerned with the subject matter of the action in that Art. V, § 1, Const.Mo.1945, V.A.M.S., vests the judicial power of the state in part in the Magistrate Courts. Section 21 of the same article provides that “The general assembly shall provide for the administration of magistrate courts consistent with this constitution.” By § 550.020 the Legislature has. provided that the state pay certain felony costs, and by § 550.240 provides for the making of a fee bill by the circuit clerk of all costs in criminal cases, including those incurred in the Magistrate Courts, legally chargeable against the state or county. Thus the amount of money paid by the state would be increased should the increased fees under the ordinance stand, and the state does thereby have a pecuniary interest in the subject matter of the ordinance, as also does the County of St. Louis. That fact, plus the fact that under said constituional provisions the state has a general administrative interest in the administration of Magistrate Courts throughout the state, gives it such an interest that under said § 56.060 relator may maintain the action. The subject matter of the action, although not designed to apply outside of St. Louis County, is not purely a local matter so as to make applicable appellants’ cited case of State ex rel. Downs v. Kimberlin, 364 Mo. 215, 260 S.W.2d 552, and its quoted case, State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327, 331. Relator here, as prosecuting attorney, is proceeding in a matter pertaining to his jurisdiction in the limited territory over which he has control and power to act — St. Louis County for which he was elected. Relator can use the State of Missouri in this matter in which the state is interested, as stated, within the confines of St. Louis County. The subject matter is not of broad expanse, concerning the whole state, so as to permit only the Attorney General to act. Compare State ex inf. Wallach, Pros. Atty. v. Beckman, 353 Mo. 1015, 185 S.W.2d 810, 813. Appellants’ Point I is overruled.

The facts as agreed upon by the parties and as here pertinent are that St. Louis County is of the first class operating under a Home Rule Charter form of government. The ordinance in question, being No. 3188, was enacted in 1964 and amended Chapter 104, Title I, St. Louis County Revised Ordinances, 1958, as amended, by adding new Section 104.201 thereto. This new section purports to fix the fees to be charged for the services of constables within the county, and provides that all such fees and costs collected by each constable shall be reported and paid by him monthly to the treasurer of the county, to be credited to the general revenue fund.

There are eight magistrates in the county, elected by geographical districts, the boundaries of which were established by the Board of Election Commissioners of the county. The jurisdiction of each magistrate is countywide. Four constable districts exist which are not coterminous with the eight magistrate districts which now exist. The four constables of the county are elected, and their authority to serve process extends throughout the county. The salary of each constable is $7,500 per year and the salaries of deputies authorized to be appointed by constables (twenty-four deputies im.all) are within an ordinance grade range —$280 to $380 per month, within budgeting limits of ordinance. Each constable presently serves two Magistrate Courts as set by ordinance. Prior to the enactment of Ordinance No. 3188, constables’ fees in legal proceedings before magistrates were provided for in Section 104.190 of the St. Louis County Revised Ordinances that “fees of Constables and Deputies, and the power of the Sheriff to act in certain cases shall be as provided for Constables and Sheriffs in first class counties in Chapter 63, R.S. Mo.1949.” In civil proceedings prior to the enactment of Ordinance No. 3188 each plaintiff by custom paid to the constable a $4 deposit for each civil suit to guarantee payment of his fees taxable as costs. As fees accrued and were chargeable against the deposit they were paid into the treasury of St. Louis County and were credited to the general revenue fund. Under the provisions of Sections 303.010 and 104.390, St. Louis County Revised Ordinances, 1948, as amended, the remaining portion of the deposit was either paid into the treasury to be held as a separate account for claim by a depositing litigant or was refunded by the constable to the litigant.

The cost of operation of constables’ offices in St. Louis County is borne by it out of its general revenue fund. Earned fees collected by constables are paid into and credited to the general revenue fund along with various other county revenues, fees and taxes, and are not set apart in any special fund or account to bear the expenses of the operation of the constables’ offices, The following table shows the fees earned and “all” expenses incurred in the operation of the constable offices in the county for a five-year period:

Total Earned Fees Total Expenditures

1960 $ 40,491.85 $ 191,216.03

1961 45,298.39 208,216.02

1962 51,261.13 234,185.36

1963 65,918.65 279,799.70

1964 75,000.00 (Estimated) 261,755.00.

(We assume that the total “all” expenses of operating constable offices includes in excess of $110,000 per year salaries for constables and deputies.)

Appellants’ Point II is that the trial court erred in failing to hold that Ordinance No. 3188 is within the authority vested in St. Louis County by Art. VI, § 18(b), Const.Mo.1945, V.A.M.S., and by the county charter. That constitutional provision is that “The charter shall provide for its amendment, for the form of the county government, the number, kinds, manner of selection, terms of office and salaries of the county officers, and for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state.” Appellants’ argument is that the declaration enables constitutional charter counties to perform their proper governmental functions themselves to meet their own singular needs; and that “[I]t is not necessary that the Constitution nor the Charter say in so many words, ‘St. Louis County has the power to set and collect fees for services of constables.’ This power is carried with the numerous grants in the Constitution and Charter as reasonably necessary to their exercise.” Thus, the determinative issue of this appeal is stated. In no place in the constitutional grant of powers in said Art. VI, § 18(b) is there any expression of authority of St. Louis County over the Magistrate Courts therein situated other than the power to provide for the number, kinds, manner of selection, terms of office and salaries of county officers (constables being county officers, State ex inf. of Dalton ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656, 660 [8]). Appellants cite Hellman v. St. Louis County, Mo., 302 S.W.2d 911, where the issue was whether the charter county could by ordinance contract for the services of appraisal experts to aid the assessor in assessing property. It was there said, as pointed out by appellants, that said Art. VI, § 18(b) of the Constitution “carries with it an implied grant of such powers as are reasonably necessary to the exercise of the powers granted and are not contrary to the public policy of the state.” Thus it was held, in effect, that there was no unconstitutional usurpation of power by the enactment of the ordinance. The opinion held additionally that the statute, § 137.230, providing that in counties having a population of over 40,000 the county court could adopt any “other suitable and efficient means or method” to secure a full and accurate assessment of taxable property, was authorization for the appraisal contracts. Thus the constitutional provision and the statute impliedly gave authority to carry out the duties of the assessor in appraising property. We have no such statute here which similarly grants authority to St. Louis County to enact an ordinance setting constables’ fees. Any implication of power to enact ordinances can relate only to express powers granted, i. e., “number, kinds, manner of selection, terms of office and salaries of the county officers.” Fees of constables do not relate to any of these matters. The state has long enacted statutes relating to fees of officers who serve the courts. See § 63.140, providing fees for constables in first class counties (undoubtedly and con-cededly now applicable to St. Louis County which was a first class county prior to its adoption of its constitutional charter, regardless of which charter it remained a legal subdivision of the state, Gamble case, supra, loc. cit. 280 S.W.2d 659 [2]); § 63.200 for constables serving the courts of St. Louis City; §§ 57.280 and 57.290 for fees of sheriffs (generally); § 57.285 for fees of sheriffs in class one counties not adopting a charter; and § 57.480 for fees of sheriffs serving the courts of St. Louis City. The state has, in its governmental concern in the administration of the court system, and particularly Magistrate Courts under Art. V, § 21, Const.Mo.1945, V.A. M.S., provided for the fees of officers to be charged and collected generally throughout the state. No legal subdivision may change the statutes by local legislation. A county, after adopting a constitutional provision giving it exclusive control of local matters, continues amenable to state control in matters of a public character such as here presented. 20 C.J.S. Counties § 52, p. 808. There is no grant of power, expressly or impliedly, to St. Louis County to regulate fees of constables. Those rights remain with the state, and may be exercised only by the Legislature (20 C.J.S. Counties § 52, p. 808), to which appellants must look for a solution of what it says is a financial problem and loss by reason of earned fees not equaling the total cost of operating constable offices. (We doubt that in any legal subdivision of the state that fees earned in attending the needs of courts and litigants equal the cost, including salaries, of maintaining offices.) Point II is overruled.

The argument under appellants’ Point III A, that the salaries of constables of St. Louis County may be fixed by it under constitutional and charter provision (though true), from which it follows that it may also fix constables’ fees, is without merit as above indicated. The old system that the officer was compensated by fees has been superseded in this case by the provision that compensation be exclusively by salary. The constable has no property right in fees other than to collect, hold and pay fees over to either the litigants or into the county treasury. St. Louis County v. Litzinger, Mo., 372 S.W.2d 880, 881 [1]. The fact that salaries are exclusively authorized to be set by the county in no way deprives the state of its power to prescribe said fees.

Under Point III B, appellants say that by reason of the Legislature being prohibited from setting the compensation of sheriffs of St. Louis County, and that § 63.140 provides that in magistrate districts of more than 75,000 inhabitants the constable shall receive the same fees and compensation as are allowed by law to sheriffs of such counties; and by further reason that the Legislature has not specifically set fees to be charged by the sheriff of a class one county not operating under a charter, shows a legislative intent that St. Louis County has the authority to provide for the fees to be received by its constables. It is not a matter of legislative intent, or that it has “not occupied the field” of provision for constable fees. Rather, it is a matter of constitutional power to set fees. Although the power to set compensation (i. e., salary) as set forth in Chapter 63 was undoubtedly repealed by the adoption of Art. VI, § 18, Const.Mo.1945, V.A.M.S., it did not affect fees prescribed thereunder, and they remained in force. Else, there would be no statutory authority whatever for St. Louis County constables to charge and collect fees. The argument is without merit, and Point III is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . All statutory references are to RSMo 1959, V.A.M.S., unless otherwise denoted.


author: BARRETT, Commissioner.

text:
    Everett W. RUSSELL, Plaintiff-Respondent, v. GULF, MOBILE AND OHIO RAILROAD COMPANY, a Corporation, Defendant-Appellant.
    No. 50936.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.
    Motion for Rehearing and to Transfer to Court En Banc Denied Jan. 10, 1966.

      Gray & Sommers, Charles E. Gray, St. Louis, for plaintiff-respondent.
    Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, Robert T. Johnson, St. Louis, for (defendant) appellant.
   BARRETT, Commissioner.

In this action under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., Everett W. Russell, a carman’s helper— called an oiler and brasser, has recovered a judgment for $45,000 against his employer, the Gulf, Mobile and Ohio Railroad Company.

The most direct route to the essence of this appeal and to the facts necessary to its disposition is to first set forth the appellant-railroad’s principal complaints. Upon the merits of the cause of action the appellant has briefed three separate points, one that its motions for judgment should have been sustained and, two and three, that the court prejudicially erred in giving Instructions 1 and 2, but in their essence these three separately briefed points are but different ways of contending that for one reason or another the respondent Russell did not make a case under the Federal Employers’ Liability Act. To present and consider each of these points in the detail suggested by the appellant would require the reproduction of the entire record, but setting forth its principal arguments dispenses with the necessity of detailed analysis and demonstration.

In urging that its motions for judgment should have been sustained the appellant GM&O contends, in part, that there is no proof that the violent jerk and coupling to the car under which Russell was working “was caused by the negligence of defendant or any agent or servant of defendant or by any instrumentality operated or controlled by defendant.” This same point is presented in its argument with respect to Instructions 2 and 3. It is said that Instruction 1 erroneously fails to require a finding that the cars shoved and on which plaintiff was working were moved by “defendant or by anyone acting for or on behalf of defendant” but erroneously assumes that they were “in fact moved by the defendant.” Or, as to Instruction 2, it is said that the instruction fails to hypothesize sufficient facts “upon which to base a conclusion that Terminal was acting as GM&O’s agent at the moment of the accident.” (Emphasis supplied.) In fact, appellant says, Terminal was not performing services for defendant but rather “was moving cars into a train of another railroad.” In its reply brief appellant asserts that upon this transcript Terminal in making up a B&O train was not “furthering the .operational activities of the defendant” and was not the agent of GM&O at the time of the accident and again it is repeated that there is no evidence to support the hypothesis that “defendant moved the train” or that if Terminal moved the B&O train it was doing so for defendant or its agent.

In view of the pleadings, the admissions or the tacitly conceded and tried issues, this phase of the appellant’s argument is indeed technical if not factitious. By its answer the defendant admitted that it was engaged in interstate commerce and that on September 15, 1962, Russell was employed by it as a carman’s helper in its 21st Street yards and that his duties were in furtherance of interstate commerce. In its admissions GM&O admitted that it had an agreement with Terminal to move railroad cars into its 21st Street yards and as to plaintiff Russell’s duties to oil cars in the 21st Street yards there was the equivocal answer “Partially.” In any event, on September 15, 1962, Russell was on the 3 p. m. to 11 shift and while he was employed by the appellant GM&O it was his duty to assist in oiling Baltimore & Ohio trains National No. 1 and National No. 2. The train was National No. 1 when it came in on either track 8 or 19 and National No. 2 when it was subsequently placed on track 15 and in GM&O’s 21st Street yeards to be again made up as an outgoing train. All switching was done by a Terminal switch engine and crew. According to carman Parcus, defendant’s witness and Russell’s immediate supervisor, there were several movements. After B&O’s National was brought in “we cut some cars out, they took the train back to the station, and then came back.” Then “they went” to track 12 and picked up two Pullman cars and returned those to track 15 and to GM&O’s 21st Street yards, and Parcus “laced the air” thus making at that time a cut or train of seven cars. Parcus rode with the Terminal engine because, while Terminal provided a switchman, it did not provide an airman, that was Parcus’ function although he too was a GM&O employee.

It is not necessary to set forth other details and indicate their indubitable inferences, one of the cases cited by appellant may be a sufficient answer to all these related questions. In Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799, a cook on the private car of Missouri Pacific’s general manager was injured when the car was being switched by Belt Railway from one track to another in the Union Station in Houston and was caused to violently collide with another car. The Texas court reversed a plaintiff’s judgment “upon the ground that the FELA did not subject the respondent (Missouri Pacific) to liability for injuries of its employee caused by the fault of employees of the Belt Railway.” It is not necessary to quote at length from the Supreme Court’s opinion and set forth its rationale, insofar as plainly applicable here the court said, “the respondent, rather than doing the necessary switching incident to its business in the Houston Terminal area, arranged that the Belt Railway should supply the crews and equipment to perform this operation on its behalf. But the evidence clearly establishes that the respondent’s trains, when under the control of the Belt Railway’s switching crews, were being handled to further the task of the respondent’s enterprise. While engaged in switching and handling respondent’s cars and trains about the terminal area, the Belt Railway employees on the job were, for purposes of the FELA, as much a part of the respondent’s total enterprise as was the petitioner while engaged in his regular work on the respondent’s car.”

It is suggested since Russell was working on a B&O train pushed and jolted by a Terminal switch engine that the case is not governed by the Sinkler case because these were not “operational activities” of defendant GM&O. But indisputably, even though National No. 1 and 2 were B&O trains and Russell was a GM&O employee, the collision and injury were in GM&O’s 21st Street yards and it was admittedly Russell’s duty to oil those trains. But if the analogy is not sufficient, in Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709, plaintiff, a B&O employee, paid by B&O and under the sole supervision of B&O employees, was injured when he attempted to slide or open a defective door on a Pittsburgh & Lake Erie Railroad car. It is not necessary to detail the circumstances as they are fully set forth in the opinion in that case but the court held that Shenker was a B&O employee and that B&O owed him the nondelegable duty to furnish him a safe place in which to work, including even a duty to inspect P&LE cars before sending its employees into them. Plainly applicable to appellant’s present contention: “The B&O required the petitioner to work with cars belonging to P&LE, taking no precautions whatsoever to protect him from possible defects in these cars, defects for which it would be liable should they appear in its own cars. * * * Nor is it an answer to claim that B&O lacked control or supervision over the P&LE car. Such arguments have never supported an exception to the employer’s duty to provide a safe place to work * * In Payne v. Baltimore and O. R. Co., 6 Cir., 309 F.2d 546 (certiorari denied 374 U.S. 827, 83 S.Ct. 1865, 10 L.Ed.2d 1051), a B&O switchman was injured when a car from a B&O train was derailed on a private spur due to an accumulation of spilled ash. Applicable not only to instructions, including as here a paragraph on the duty to furnish a safe place to work, but as to substantive law the court said: “ * * * there are two tests by either of which the charge of the District Judge was proper. One test is that involving the duty of a railroad in the area of its own action or failure of action. The other test is the more encompassing one involving responsibility for the safety of a place where its employees are required to work. This latter calls into play the doctrine of imputable negligence which we view as being within the purview of the FELA. * * * Under FELA the employer is the one owing the duty to the employee. The employee need not look elsewhere for his protection. He has a right under FELA to rely on his employer and none other. When the employer delegates its duty, or abdicates its control, the employer takes the risk, not the employee.”

Five or six of the appellant’s contentions have to do with its substantive liability and this is presented in several different ways. It is that its motions for judgment should have been sustained because the plaintiff, a railroad employee “who was injured when a railroad car under which he was working was caused to move,” by his own evidence “has shown that the injury did not result from any negligence on the part of the defendant.” It is said that plaintiff testified that he was prohibited from doing work which took him underneath a train until the train was made up and yet he said that the train was not made up and that he had made no effort to determine whether the train was made up and in fact had been advised that additional cars were to be added. As to the instructions it is said that there was no evidence to support the hypothesis that the appellant knew or should have known that plaintiff was oiling a gear box and was likely to be in a position where the movement of a car would result in his injury. Those arguments are expanded in its reply brief and it is said that “safe place to work” is beside the point and is but an attempt to evade the thrust of “sole cause”— meaning that “(e) very single action or admission leading to the plaintiff’s injuries can be traced solely to the plaintiff himself. As demonstrated, the defendant was guilty of no negligence at all and can not be liable here as a matter of law.”

But as stated in the beginning, as assistant carman it was Russell’s duty to oil the B&O’s trains, National No. 1 and National No. 2. And so, as was his duty, as soon as B&O train No. 1 came in Russell immediately started oiling the cars, particularly the gears and journals. As was often the case he could not finish the job of oiling before the train was to be moved to the 21st Street yards and again made up as outgoing National No. 2 and so, while the train was being moved, he ate supper and then proceeded over to GM&O’s 21st Street station and continued his task of oiling the train. In describing the situation he said, “I was sitting on a rail with my back against the generator and with my left arm (flashlight in right hand) reached over to oil the generator gear box. * * * Unbeknownst to me I was knocked to my side to where I fell over on the side after I was knocked, and I couldn’t get up for a while.” He said that he did not look at the “head end” of the train to see whether there was an RPO car (railway post office car) there which would indicate a train made up. He said that he did not ask anyone whether any cars were to be added because “They always come around and tell you but no one told me that night. * * * Sure, you will have to know when it is made up. If I didn’t know it, they tell you. You have to know it. * * * Our boss always says stay out from under cars until the train is made up, so that night I stayed out from under the car until I had eaten my supper, and I stayed out from under the cars, and the brakeman and switch-man always come around and investigate the car to see if there is anybody under the train. None of my workmen, neither my switchman or brakeman came around to notify me that night.” He knew about the blue flag rule but “I was always warned, when I went to my boss he told me ‘don’t never get under the train until they are done switching,’ and, therefore, we was never to use the flag, never at any time * * As to whether plaintiff Russell worked on “a set schedule” there were these questions and answers on cross-examination-. “Q. Your work is pretty much the same from one day to the other on that shift, isn’t it? A. Yes, sir. Q. The same train comes in and the same train goes out? A. Correct. Q. And you got to get the same train, which is B&O No. 2, or what comes in as B&O No. 1 ? A. Correct. Q. You have to oil the journal boxes on that train? A. Correct. Q. You have to oil the gear boxes? A. Correct. * * * Q. And from day to day you saw this train come in * * * (and) you worked on the cars of the train that came in and you worked on the cars of the train that’s going out? A. Correct. Q. Don’t you get pretty much accustomed to knowing what cars are going to be in that train? A. Yes.” And finally as to the movement causing the injury, on cross-examination, “Q. Was there a jar that this train made when you were under it any different than another switching of cars in on it? Was it any different? A. Yes, sir, it was. Q. And how? A. Greater knock, or jar, or whatever you want to call it.”

The appellant recognizes and yet in part attempts to avoid the rule laid down in what has come to be the leading case, Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, “Under this statute (FELA) the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” See also the language of the statutes 45 U.S.C.A. §§ 51, 53 and 54 and the annotation in 4 L.Ed.2d 1787 “Supreme Court review of sufficiency of evidence in actions under Federal Employers’ Liability Act.” Insofar as the appellant’s “sole cause” and “no negligence at all” arguments appear to be but another way of urging “assumption of risk” as a defense, it ignores the force of Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. In that case it was the duty of the railroad’s policeman to inspect the seals on cars and while standing between two tracks at night inspecting the seals on one train he was hit and killed by a train backing in the opposite direction. He was of course familiar with prior instructions to watch out for the movement of trains as no one looked out for him and there were no lights. Somewhat as the appellant urges here, a circuit court of appeals “distinguished between assumption of risk as a defense by employers against the consequence of their own negligence, and assumption of risk as negating any conclusion that negligence existed at all.” But the Supreme Court said, “We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to ‘non-negligence’ A much weaker case on its facts was Seaboard Air Line R. Co. v. Strickland, (Fla.) 80 So.2d 914, in which an employee was injured as he and others were changing an outside brake beam. “The plaintiff, while in a squatting or stooping position, and in the process of disengaging the beam from the belts, slipped and fell back against a switch box which was a permanent fixture extending down from the floor of the car, injuring his back.” (80 So.2d l. c. 916). There was proof of a custom to change outside brake beams at a safer place — ■ on a flat track or in a pit where there was lighting and a better footing. The Florida court held that on these facts there was no proof of an unsafe place to work and hence no negligence and therefore reversed a plaintiff’s judgment. But in a true “Per Curiam” opinion the Supreme Court granted certiorari and reversed the judgment of the Florida Court. Strickland v. Seaboard Air Line R. Co., 350 U.S. 893, 76 S.Ct. 157, 100 L.Ed. 786. And as to the evidence as to custom and warning see Goodwin v. Missouri Pacific R. Co., 335 Mo. 398, 399, 72 S.W.2d 988, and Grosvener v. New York Central R. Co., 343 Mo. 611, 123 S.W.2d 173.

The first two sentences in Instruction 1 abstractly instructed the jury on negligence and the duty of GM&O to “provide its employees with a reasonably safe place within which to do their work and failure to use such care is negligence.” As indicated, the appellant’s contention in the trial of the case may have necessitated this abstraction. Terminal R. Ass’n of St. Louis v. Fitzjohn, 8 Cir., 165 F.2d 473, 1 A.L.R.2d 290. While it does say that failure to provide a safe place to work is “negligence,” a verdict for the plaintiff is not directed upon this hypothesis. Immediately following in the same instruction the plaintiff’s position, duty and all relevant circumstances were set out and the defendant’s liability was hypothesized upon a finding that in moving the cars “defendant failed and omitted to give plaintiff any warning of such anticipated move.” In these circumstances the introductory sentences of Instruction 1 may not be said to be so confusing to the jury as to demand the granting of a new trial. Winters v. Terminal R. Ass’n of St. Louis, 363 Mo. 606, 252 S.W.2d 380, 387.

Instruction 7 was a so-called, long-form, five-part instruction on the measure of damages and it is claimed that it was prejudicially erroneous in that there was no requirement that subparts 4 and 5, impairment of ability to work in the future and “nature, character and extent of said injuries,” were “the direct result of the injuries allegedly sustained by plaintiff.” In part the appellant urges that there was no requirement of a finding that the impairment of ability to work was caused “by the alleged injury to plaintiff’s back” and second, there was no requirement “that the jury establish any causal link with the alleged injury before they may consider these elements of damages.” Mr. Russell had been involved in one or more prior accidents and injuries over the years for which he had made claim or brought suit. Then too in 1963, largely because of “bilateral mixed type deafness with perception deafness dominating” (Russell called it “crickets in his ear”) he was retired from railroad service with retirement benefits of $102 a month. In its only cited case, O’Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, the appellant suggests that there is a striking “parallel” with this case. It is not necessary, however, to point out the distinguishing characteristics of the two cases, the damage instructions, as with all instructions, are read together (Layton v, Palmer, Mo., 309 S.W.2d 561, 570, 66 A.L.R.2d 1242) and the appellant’s only offered delimiting instruction, Number 8, was given and that instruction told the jurors that they “must not allow the plaintiff any damages for loss of wages after the date said hearing defect * * * would have caused him to stop working.” Feste v. Newman, Mo.App., 389 S.W.2d 369, 372.

As a matter of fact the essentially meritorious problem is whether upon this record the verdict of $45,000 is so excessive as to demand a remittitur. The jury originally returned a verdict for $48,000 but inasmuch as only $45,000 damages was prayed the plaintiff remitted $3,000. In addition to his own testimony as to his injuries, treatment, losses and pains, there were two medical witnesses, a chiropractor and a doctor of medicine. Essentially there was no difference in the testimony of these two practitioners of the healing arts and a brief summary of the testimony of Dr. Walters will suffice for the purposes of this opinion. Mr. Russell suffered no broken bones or other visible signs of injury and Dr. Walters found “no muscle spasm” and for his age of 61 no deformities other than some arthritic changes. He found a “tenderness over the muscle areas on either side of the lumbar vertebrae.” Pointing to X rays the doctor said, “there is an arthritic spur on the third lumbar vertebra * * *. The other abnormality that I note is with last or the fifth lumbar vertebra and the sacrum, which is this bone here, was some narrowing here, and I observe an irregularity of this junction.” In answer to the principal hypothetical question the doctor said, “It would be my opinion that this man sustained soft tissue or muscle injuries in that region of his back. * * * this man had injuries to the muscles of his back from which he is still complaining, the type of injury that takes place when something of this type or condition results in the tearing or the straining of muscles, and ligaments, * * *.” He was of the opinion that Russell’s arthritis “wouldn’t be involved” and neither would his prior injuries, especially the fractured clavicle of 1956. As to prognosis and permanency the doctor concluded, “I believe that if he had complaints of that duration, which is over a year, it would be my opinion that the complaints and the injuries we mentioned would be of a permanent nature.”

In addition to his physical injuries the respondent, using certain formulas, projects a loss of earnings and decreased benefits approximating $21,000. He was finally hospitalized for treatment from November 23 to December 20, 1962. Mr. Russell complains of aches and soreness in his back but essentially “this man sustained soft tissue or muscle injuries in that region of his back.” In short, applying Missouri’s time-honored doctrine of some uniformity of verdicts for comparable injuries, embracing all the usual tests including, even since 1958, the continued diminishing value of the dollar, this verdict is manifestly excessive in the sum of $20,000. Kiger v. Terminal Railroad Ass’n of St. Louis, Mo., 311 S.W.2d 5, 13-15, Miller v. Multiplex Faucet Co., Mo., 315 S.W.2d 224; Harvey v. Gardner, 359 Mo. 730, 223 S.W.2d 428. Therefore, if the plaintiff-respondent enters a remittitur in the sum of $20,000 within fifteen days the judgment is affirmed in the sum of $25,000 as of the date of the original verdict, otherwise the judgment will be reversed and remanded for a new trial.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

EAGER, P. J., and STORCKMAN, J., concur.

FINCH, J., concurs in the result.