author: DOERNER, Commissioner.

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Plaintiff, v. Joy R. SUTTON, Administrator of the Estate of Velma Webster, Defendant-Respondent, and Robert V. Babb, Administrator of the Estate of Wayne R. Webster, Defendant-Appellant.
    No. 31194.
    St. Louis Court of Appeals. Missouri.
    May 21, 1963.
    Lashly, Lashly & Miller, Paul R. Moody, St. Louis, for plaintiff.
    Flynn, Challis & Sumner, Thomas W. Challis, Jr., St. Louis, for defendant-appellant.
    Harry Gershenson, St. Louis, for defendant-respondent
   DOERNER, Commissioner.

This appeal is from a judgment and decree rendered in an interpleader action in which the individual Administrators of a husband and wife, both of whom died as the result of a common disaster, each claimed the proceeds of a life insurance policy in which the husband was the insured and the wife was named the beneficiary. The Circuit Court of the City of St. Louis held that the wife had survived her husband and directed the payment of the fund to the Administrator of her estate. In due course the Administrator of the husband’s estate appealed.

On or about April 21, 1958, the Prudential Insurance Company of America issued its policy numbered M90 287 371 on the life of Wayne R. Webster in the face amount of $1000, with a like sum payable in the event of accidental death. Mrs. Mathilda E. Webster, mother of Wayne R. Webster, was the named beneficiary, but on June 12, 1959 the named beneficiary was changed to Velma Haus, friend. Shortly thereafter, on July 4, 1959, Mr. Webster and Mrs. Haus were married. Two weeks later, on July 18, 1959, they came to their death as the result of a head-on collision between the automobile in which they were passengers and another car, on U. S. Highway 61 near Engle Creek Road in Jefferson County. Joy R. Sutton, Administrator of Mrs. Webster’s estate, claimed that Mrs. Webster had survived her husband and made a demand on The Prudential for the proceeds of the policy. Robert V. Babb, Administrator of Mr. Webster’s estate, disputed the survivorship of Mrs. Webster and likewise demanded the proceeds. The Prudential then instituted the interpleader action naming each Administrator as a party defendant. The chancellor heard the evidence and, as stated, entered a judgment and decree in favor of the Administrator of Mrs. Webster’s estate.

Prior to a consideration of this case on its merits we must first dispose of respondent’s motion to dismiss this appeal. Respondent alleges therein that appellant’s brief fails to comply with Civil Rule 83.05, V.A.M.R. in that it does not contain a fair and concise statement of the facts. Respondent contents himself with that assertion without pointing out in his motion the material evidence which he claims was omitted. An examination of the statement and a reading of the relatively short transcript discloses that while the statement is not as comprehensive as it might have been, it is not so fatally deficient as to require dismissal of the appeal. Respondent’s motion should therefore be overruled.

Section 471.040, RSMo 1959, V.A.M.S., as amended, of our Uniform Simultaneous Death Act provides:

“Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.”

Prior to the passage of our Simultaneous Death Act in 1947, Missouri, together with all jurisdictions that proceeded according to the common law, did not indulge in any presumption of survivorship in case of a common calamity where title to property or the descent thereof was involved. United States Casualty Co. v. Kacer, 169 Mo. 301, 69 S.W. 370, 58 L.R.A. 436; Abrams v. Unknown Heirs of Rice, 317 Mo. 216, 295 S.W. 83, 85. The rule followed was that he who claimed a right by virtue of survivor-ship had the burden of proving the fact of the survival of him through whom he claimed; and that, failing in this, the property or fund remained vested as it was before the calamity. Stewart v. Russell, Mo., 227 S.W.2d 1011; United States Casualty Co. v. Kacer, supra. Thus as to title to property or the devolution thereof, Section 471.010 of the Simultaneous Death Act created no new presumption as to survivor-ship. Schmitt v. Pierce, Mo., 344 S.W.2d 120.

In the matter of life insurance, however, a different rule existed prior to the enactment of our Simultaneous Death Act. In such a case the question of whether the burden of proof as to survivorship was cast on the personal representative of the insured, or that of the beneficiary, depended upon whether the insured had reserved the right to change the beneficiary. If the insured had not, it was held that the beneficiary had a vested interest, subject to being divested only if the beneficiary died before the insured, and that the burden of proving that the insured survived the beneficiary was cast on the former’s personal representative. United States Casualty Co. v. Kacer, 169 Mo. 301, 69 S.W. 370, 58 L.R. A. 436, 92 Am.St.Rep. 641. On the other hand, if the right to change the beneficiary had been reserved by the insured, then it was said that the beneficiary had no vested interest and in order to recover it was incumbent upon his personal representative to prove that the beneficiary had survived the insured. Supreme Council of Royal Arcanum v. Kacer, 96 Mo.App. 93, 69 S.W. 671. In the instant case the insurance policy was not introduced in evidence, but the fact that Mr. Webster substituted Mrs. Webster (then Mrs. Haus) as beneficiary in place of his mother would indicate that he had reserved the right to change the beneficiary. And in any event, Section 471.040 clearly provides that where the insured and the beneficiary perish as the result of a common disaster the proceeds are to be distributed as if the insured had survived unless by sufficient evidence it is shown that the beneficiary survived. Thus it appears that regardless of any reservation of the right to change the beneficiary, the burden of proof as to the survival of the beneficiary is placed on his personal representative.

The gist of appellant’s points on appeal is that there was not sufficient evidence introduced to support the court’s finding that Mrs. Webster survived her husband. This contention necessitates a thorough review of the evidence. All of the evidence on behalf of respondent consisted of the testimony of Arthur W. Heiligtag and Arthur Hartrup. Heiligtag, a funeral director and embalmer for 20 to 25 years, who was a partner in two funeral establishments, one at Imperial and the other at Antonia, testified on direct examination that in response to the request of a passing motorist he drove his ambulance to the scene of the accident (from where is not stated), just north of Pevely, arriving around 5:15 P.M. He saw a 1956 Chevrolet, which had been totally demolished. There were five occupants, two adults and a young boy in the front, and two adults in the back. He realized he could not take all of them in his ambulance and asked the patrolman to call for additional ambulances. With the help of some bystanders he proceeded to try to get the injured out. One lady (whom it seems to be conceded was Mrs. Webster, and will be so referred to) was on the back seat, just in back of the driver. The upper part of her body was out of the car, (the witness indicated the extent, but what he indicated is not stated in the record) with her head hanging down. She was bleeding very extensively, and it appeared she was injured inwardly. The blood was spurting from her head, and flowing, but not spurting, from her ears. She was lying still, but to his knowledge she was breathing. Mrs. Webster was taken out of the car first because, “ * * * we thought possibly we could do something with her, yet.” She was placed on the regular cot in the ambulance, and at that time showed visible signs of life. He based that “on the fact that the blood was spurting from her body, as an indication she was hurt bad” ; he learned that from his experience in his work. A Mr. Arnold was placed on the auxiliary stretcher and put in the ambulance. Then two ladies brought a four or five months old baby, who was living, from the other car involved in the accident and put the baby in the front of the ambulance. He drove the ambulance to the Jefferson Memorial Hospital, located in Festus. There were visible signs of life when he put Mrs. Webster in the ambulance. When he rolled Mrs. Webster into the emergency room the doctor pronounced her dead. It took him possibly 15 or 20 minutes to get to the hospital after he placed Mrs. Webster in the ambulance. He drove, and no one rode in the back with the people.

As to the other occupants of the car in which Mrs. Webster was a passenger, Heil-igtag stated that he did not thoroughly examine them, but did casually glance at them. He saw no movement, no visible signs of life. Some bystanders helped remove them from the car. He saw all of the bodies. The other lady in the back, Mrs. Arnold, was taken out of the car and placed on an auxiliary stretcher; “ * * * we could find no visible signs of life in her, whatsoever.” The little boy was laid outside the car on the ground, or pavement. Mr. Arnold was placed on the auxiliary stretcher, which completed the load in the back of his ambulance. The other occupants of the Chevrolet were left there by him. At the time he put Mrs. Webster in the ambulance the other four people did not show signs of life. He based that on casually glancing at them.

The Prudential had also issued a policy on the life of Roger L. Haus, the two year old son of Mrs. Webster by a former marriage, who was the boy described by Heili-gtag as being in the front seat. When a controversy developed between Mrs. Webster’s Administrator and Edwin L. Zohner, Administrator of Roger’s estate, the Prudential filed a similar interpleader suit. On motion of the respondent here, the two suits were consolidated and heard together. It should be added that judgment below in that action was likewise in favor of Mrs. Webster’s Administrator, from which Roger’s Administrator did not appeal. On cross-examination by Mr. Zohner the respondent’s witness Heiligtag again stated that Mrs. Webster “ * * * was laying out of the seat like that. (Indicating)” — (no explanation of what he indicated in the record). Asked whether it was possible that a person could be dead, and leaning over like that, and have blood running out of her head he answered, “Yes, but it wouldn’t spurt from it.” He repeated that the blood was not spurting from Mrs. Webster’s ears and explained that “Very seldom, in our experience, would we find it spurting from an inward cranial injury.” He insisted that the blood was spurting from her head, from above her hairline. She was lying completely still. He did not check her for a heartbeat, and explained that he did not do so because “Well, from our experience in handling so many accidents, when we find someone like that, who we think are alive, it is an indication to us, that we should try to get them to the hospital at once.” He went to a school to learn his profession and acquired some medical knowledge — took courses in anatomy, bacteriology, and organic and inorganic chemistry. He did not handle the little boy who was in the car, nor thoroughly examine him, but did casually glance at him. He could not see anything, there was no visible sign of life, and he assumed that the boy was dead.

On cross-examination by the appellant’s attorney Heiligtag testified that he looked at Mr. Webster casually; he appeared to be in the front seat of the car, but that he couldn’t exactly pinpoint it. He never pronounces anyone dead — medical people actually do that, to establish the time of death.

Arthur Hartrup, the other witness called on behalf of respondent, testified that he was by occupation a machinery foreman. He was on his way from Piedmont to St. Louis when he came upon the wreck, near Pevely. He stopped to see what had happened. There had been a head-on collision, and the cars were torn up badly. He saw four people in the Chevrolet, a man and a woman in the front seat, and a man and a woman in the back seat. The lady in the back scat was hanging out the door, and was just laying there. From where he was standing it looked like the blood was coming from her head. He got within 5 feet of her. He also walked around the car and looked at the other people. They were just laying there. The steering wheel had been pushed up into the face of the one who had been driving, and the woman in the front seat was kind of slid down towards the floorboards ; the one man in the back was kind of laying up over the front seat. Two fellows kind of placed him back in the seat “ * * * and he kind of drew a long breath, and kind of slumped in the seat.” Later he found out the lady (in the back) was Mrs. Webster. He doesn’t know whether or not the blood was spurting from her head, from where he was standing he could see it was dripping on the side where she was hanging out. Asked if any of the other people moved in the car, or showed any sign of movement when he looked at them he answered, “No, only the man that was in the back seat, he kind of drew a long breath, and that’s all.”

Cross-examined by Mr. Zohner, Hartrup stated that the four people he saw in the car were all adults, and that he didn’t see any child in there. He did not see the two cars collide.

■ Cross-examined by Mr. Challis, appellant’s counsel, Hartrup was asked:

“Q. You saw a man in the back seat, is that right?
“A. Yes, sir.
“Q. You saw him breathing, is that ' correct, sir?
“A. When the two fellows kind of sat him down in the seat, I saw him take a long breath.
“Q. His body moved when you observed that?
“A. Yes.
“Q. Did you ever see the women move, at all?
“A. No, sir.”

Subsequently the witness Hartrup was recalled to the stand -by respondent, and on the claim of surprise, respondent was permitted by the court to interrogate Hartrup about an affidavit he had made on March 5, 1960, before the trial. Over objection of appellant, respondent was permitted to^ develop that in the affidavit Hartrup had stated that the man in the rear who was placed back on the seat by two men, “that he slumped over in the seat and apparently died.”

The only other witness who testified to having been at the scene was Herman A. Ellenberger, a State Highway patrolman, called by defendant Zohner, who stated that he answered a call to investigate the accident. He found two cars had been involved in actual contact, and a Greyhound bus that had run off the road to avoid striking the two cars ahead. He recalled that there were bodies in the ’56 Chevrolet sedan when he arrived, and that he assisted in removing some of them. In removing the bodies he did not observe any signs of life about any of the occupants of the car.

On cross-examination he stated that he saw five persons in the car, but didn’t know one from the other. Asked if he saw Mrs. Webster bleeding he answered that he didn’t know who she was. And when inquiry was made as to whether he had observed a lady in the back, hanging out of the car, he replied that he did not recall; that he had so many of those (accidents) that he could not remember specifically.

Appellant offered and there was received in evidence, as his exhibits numbered 5 and 6, death certificates of Wayne R. Webster and Velma P. Webster, respectively. In both the time of death was stated to have been at “5 :30 p.” on July 18, 1959, and the cause as “trauma due to auto accident.” In that for Mrs. Webster the time of injury was stated to have been “5:15 p. m.” While in the certificate for Mr. Webster it was given as “5:30 p. m.” However, in both certificates the box headed “Interval between onset and death” had a long dash drawn in the space provided for an answer. Both certificates were signed by “James C. Rehm, D.C., Coroner.”

Was there “sufficient evidence” within the meaning of that phrase as used in Section 471.040, which will support a finding that Mrs. Webster survived her husband? In construing the same term as employed in Sections 471.010 and 471.030 of the Simultaneous Death Act the Supreme Court in Schmitt v. Pierce, Mo., 344 S.W.2d 120, 123, equated the word “sufficient” with that of “substantial” and quoted with approval the definition of substantial evidence stated in Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 141, as follows: “* * 'Substantial evidence is evidence from which the triers of the fact reasonably could find the issue in harmony therewith.’

* * * ” The court cited Taylor v. Cawood, Mo., 211 S.W. 47, where the evidence of survivorship was considered “substantial” and Warren v. Aetna Life Ins. Co. of Hartford, Conn., 202 Mo.App. 1, 213 S.W. 527, 530, where survivorship was established * * * according to a preponderance of the testimony and reasonable inferences to be drawn therefrom” and concluded its discussion with the statement (344 S.W.2d p. 123) that:

“ * * * Our early rulings on sufficient evidence of survivorship are in accord with rulings in other states under the Act. Sauers v. Stolz, 121 Colo. 456, 218 P.2d 741, 743, states (loe. cit. 742[2]): ‘[T]he fact of survivorship requires no higher degree of proof than any other fact in the case.’ See also Prudential Ins. Co. of America v. Spain, 339 Ill.App. 476, 90 N.E.2d 256, 259 [2]; White v. Taylor, 155 Tex. 392, 286 S.W.2d 925, 927; 16 Am.Jur. 34, §§ 42, 43, and appendix; Annotation 20 A.L.R.2d 235; 25 C.J.S. Death § 12, p. 1071.”

In the light of such standards, we are of the opinion that “ * * * men of ordinary reason and fairness, in the light of the facts as they appear in this record, * * * ” Warren v. Aetna Life Ins. Co. of Hartford, Conn., supra, 213 S.W. p. 530, would come to the conclusion that Velma Webster had survived her husband, Wayne R. Webster, and we so hold. Certainly the evidence and the reasonable inferences to be drawn therefrom are as substantial as they were in that case. The testimony of Heiligtag, a funeral director and embalmer for 20 or more years, who had studied anatomy and apparently had had considerable experience in handling victims of similar catastrophes, is sufficient to establish that Mrs. Webster was breathing when he arrived on the scene, and that she was alive both then and when he placed her in the ambulance to take her to the hospital. And while Heiligtag stated that he did not make a thorough examination of the body of Mr. Webster, he testified that he saw no movement or visible sign of life either on the part of Mr. Webster or of the other three occupants of the automobile. As to the testimony of Hartrup, disregarding the opinion expressed in his affidavit that Mr. Webster “apparently died,” (see Schmitt v. Pierce, supra, 344 S.W.2d pp. 128, 129 as to the opinion of a lay witness on the issue of death), there remains sufficient evidence from which the inference may he drawn that Mr. Webster drew a final breath and expired as the two unidentified men sought to straighten him up on the back seat of the car.

Appellant also asserts that the death certificates showing that the time of death of both Mr. and Mrs. Webster “ * * * are prima facie evidence of the facts therein stated and here control the weight of the evidence.” We readily agree that by statute a certificate of death is prima facie evidence of the facts required to be stated therein. Section 193.170; Randolph v. Supreme Liberty Life Ins. Co., 359 Mo. 251, 221 S.W.2d 155. “ * * * But it is prima facie only and is not to be taken as conclusive when other facts brought forward explain or contradict it as to make a submis-sible issue of its verity. * * * ” Pfingsten v. Franklin Life Ins. Co., Mo., 330 S.W.2d 806, 815. Kirk v. Metropolitan Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333. Here evidence was brought forward to contradict the statement in the certificate that the deaths of both Mr. and Mrs. Webster occurred at 5:30 P.M. So far as the weight to be given to the certificate is concerned, there is nothing in the record to indicate that the coroner had personal knowledge of the facts, Felker v. Metropolitan Life Ins. Co., Mo.App., 288 S.W.2d 26, and its effect is to some extent weakened by the obviously erroneous statement that Mrs. Webster was injured at 5:15 P.M. and Mr. Webster at 5:30 P.M.

The respondent’s motion to dismiss the appeal should be overruled and the judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, respondent’s motion to dismiss appeal is overruled and judgment affirmed.

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


source: Caselaw Access Project

author: HUNTER, Judge.

license: Public Domain

text:
    Rozanne HUNDLEY (Employee), Appellant, v. The MATTHEWS HINSMAN COMPANY (Employer), and American Insurance Company (Insurer), Respondents.
    No. 23782.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.
    Claude L. Schenck, R. A. Kelpe, Kansas City, Walter Klamm, Kansas City, Kan., for appellant.
    David H. Clark, Kansas City, for respondent.
   HUNTER, Judge.

This is an appeal by Rozanne Hundley, employee, from a judgment of the Circuit Court of Jackson County in favor of The Matthews Hinsman Co., employer, affirming the decision of the Industrial Commission of Missouri denying recovery to her for her disability resulting from two herniated discs suffered in a fall on the employer’s premises.

It is conceded that the parties are subject to the Workmen’s Compensation Law, and that the injury arose out of and in the course of her employment. The defense upon which the claim was ruled is the special statute of limitations set out in Section 287.430 RSMo 1959, V.A.M.S., “No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment. * * *"

The essential facts are undisputed. On January 23, 1959, as she entered her place of employment Mrs. Hundley unexpectedly slipped on some ice and fell hard to the vestibule floor striking and injuring her back. The fall caused immediate severe pain throughout the lower part of her back. She was eventually assisted to her feet and sent by her employer to Research Hospital. There she was admitted, x-rayed, otherwise examined and treated by Dr. G. L. Williamson, an orthopedic physician employed on behalf of the employer-insurer, who paid his bill amounting to $43.00. On January 26, 1959, the employer filed with the Division of Workmen’s Compensation a report of injury describing Mrs. Hund-ley’s injury as a “sprain”.

While in Research Hospital heat and other therapy treatments were administered to Mrs. Hundley’s low back area. She was dismissed from Research Hospital on January 30, 1959, and went to Dr. Williamson who prescribed a corset type brace for her to wear over her low back until such time as she wished to discard it. This brace cost $8.36 which sum was paid by the employer-insurer. On February 5, 1959, she returned to her employment.

During the time she was in the hospital Mrs. Hundley’s low back area continued to pain her. This pain lessened during her hospital confinement and practically disappeared by the time she completed follow-up checks at the office of Dr. Williamson who last saw her and discharged her on February 23, 1959, subject to the mentioned wearing of the brace. When she quit wearing the brace about three months after the accident her back was apparently getting along real well, “it wasn’t bothering” her and she was experiencing no pain.

Sometime in January, 1960, she first felt a “catch” in her back. In a matter of days she experienced additional intermittent “catches” to the extent that in March, 1960, when she went to see a chiropractor for a stiff neck condition (unrelated to her accident) she consulted him about the “back catches” which were occurring more frequently. Awhile after this visit the catching sensations were accompanied by by pain in her right hip and upper right leg with a tingling sensation as though her foot were asleep.

On July 24, 1960, her back bothered her quite a bit. The following morning she had excruciating pain and could hardly get out of bed or move. She tried to contact Dr. Williamson and when she learned he couldn’t see her, she called her family physician, Dr. Berger, who immediately diagnosed her condition as “a surgical back, it appears to be a disc.”

Dr. Berger called in Dr. Drisko, an orthopedic surgeon, and ordered Mrs. Hund-ley to St. Mary’s Hospital. There a myelo-graphic study was made confirming two herniated discs between L4 and 5 and L5-Sl. On July 28, 1960, Dr. Drisko operated, found the two mentioned herniated discs and fused the back bone at that place. Mrs. Hundley experienced a normal recovery from the surgery, and Dr. Drisko rated her disability at 30 per cent permanent and partial of the body as a whole. Dr. Harold Zuber, who examined her on behalf of the employer-insurer, rated her as having a permanent partial disability of 15 to 20 per cent of the body as a whole.

The referee’s finding read: “ * * * the claim for compensation filed by the employee was not filed within one year after the date of the injury, nor was said claim for compensation filed within one year after the furnishing of medical treatment or the payment thereof.

“I further find that the claim for compensation was not filed by said employee within one year after the date when it became reasonably discoverable and apparent that a compensable injury had been sustained by said employee.

“Compensation therefore must be and the same is hereby denied.” (Italics ours.)

On review, the Industrial Commission found the award of the referee to be correct in all respects, adopted his findings of facts, his rulings and conclusions of law and awarded “no compensation”, saying, “In affirming said award of referee, we find controlling the cases of Crites v. Missouri Dry Dock Company, Mo.App., 348 S.W.2d 621, 1. c. 623; and Conn v. Chestnut Street Realty Co., 235 Mo.App. 309, 133 S.W.2d 1056, 1. c. 1058.”

The single question presented on this appeal is essentially one of law; namely, on the record before it did the Industrial Commission misinterpret and misapply the one year special statute of limitations by holding that it commenced to run from the time it became reasonably discoverable and apparent that appellant had suffered a compensable injury rather than from the time it became reasonably discoverable and apparent that she had suffered the discs injury.

It is claimant’s contention that the discs injury was latent and did not become reasonably discoverable or apparent until on or about July 25, 1960, when she experienced excruciating pain and was unable to continue her employment. It was then that her injury was first diagnosed as probably a disc injury by Dr. Berger. Claimant reasons that symptoms indicative of a disc injury did not appear until after January, 1960, when she commenced to have catches in her back, followed by pain radiating into the right hip and leg with a feeling the leg was asleep, which symptoms gradually grew in severity until July 25, 1960, when they became disabling. Claimant notes that Dr. Williamson, the company’s doctor, apparently felt her injury was only a strain and did not diagnose or even suspect a disc injury or he would not have discharged her on February 23, 1959, but would have made further tests, such as myelogram. She insists her claim should not be barred when a qualified physician is unable to diagnose or discover her latent injury within the period of limitations as interpreted and applied by the commission.

It is the employer-insurer’s contention that claimant sustained an accident causing a compensable injury on January 23, 1959, to her low back area, and that her claim for compensation was not filed until more than one year after company provided treatment; more than one year after payment of all bills therefor by the company and more than one year after she had voluntarily quit wearing the back brace provided by the company’s doctor.

In the Crites case, supra, relied upon by the commission, claimant on August 15, 1956, unexpectedly was subjected to the full weight of a 500 lb. steel shaft, jerking him down and injuring his back. He suffered immediate pain but continued to work. He thought he had suffered a strained muscle or ligament and that the matter would correct itself in time. There were weeks, and sometimes a month, when he would suffer no discomfort from his back. In the latter part of 1957 the intermittent pain started getting worse. In 1958 it caused him to miss some time from work. At that time he asked his employer for medical aid and was refused. In May 1958, he consulted a doctor who examined him, obtained a myelogram and diagnosed a ruptured disc between the 4th and 5th lumbar. The Industrial Commission found a compensable injury (which it defined as one which disables an employee either totally or partially from the performance of his work) became reasonably discoverable in November, 1957, when he first sought medical aid by consulting a chiropractor because his back symptoms had worsened so much, and ruled the claim filed on October 4, 1958, was timely filed. The circuit court and the St. Louis Court of Appeals affirmed.

Apparently of persuasive force and applicability to the Industrial Commission is that part of the Crites case opinion which after quoting from the statute of limitations, said: “The foregoing has been construed to mean that the limitation placed upon the time in which the employee may file a claim begins to run when it becomes reasonably discoverable and apparent that a compensable injury has been sustained.” (Italics ours.)

In the instant case Mrs. Hundley sustained a compensable injury at the time of her accident for she was disabled from performing her work for approximately two weeks, and the commission and circuit court have literally applied the above quoted language of the Crites case to the facts of this case. Apparently if in the Crites case claimant when injured had been caused to miss even one day’s work he would have been precluded from recovery by the Industrial Commission on the theory he then sustained a compensa-ble injury even though believed by all to be a mere muscle strain.

In the other case relied upon by the Industrial Commission, Conn v. Chestnut Street Realty Co., supra, on May 21, 1936, claimant in opening a window wrenched her right arm between the elbow and wrist. She had a minute’s stinging pain which then went away. A day or two later the arm swelled and she rubbed liniment on it. The swelling disappeared in a few days and a lump appeared on her arm about the size of a marble, which grew larger as time went on. On January 7, 1937, the lump was about the size of an orange and she consulted her doctor who ordered the tumor removed. On July 21, 1937, she began to have pain in her arm so she went to the hospital where the tumor was diagnosed to be cancerous. It was necessary to amputate her arm. She had continued to work until the date of the amputation. She filed her claim before the commission on September 8, 1937. At that time the limitations period was six months, and the commission denied compensation ruling her claim was not timely filed. The St. Louis Court of Appeals affirmed, saying loe. cit. 1058 of 133 S.W.2d, “* * * a claim must be filed within six months after it becomes reasonably discoverable and apparent that cm injury has resulted from the accident far which the employee is eru-titled to compensation. (Italics ours) * * * In this case there is no escape from the conclusion that an injury was not only discoverable, but was plainly apparent within a day or two after the accident when the arm began swelling, * * *. If claimant had heeded the doctor’s advice, and had the lump removed, it might have cured the effects of the injury; and clearly her employer was liable for the medical, surgical, and hospital treatment in removing the lump.”

As we understand the Industrial Commission’s reliance upon the Conn case, it is that claimant suffered a compensable injury (even though its full effects may not have been known) more than six months before she filed her claim and, hence, the statute of limitations began to run from the time she suffered a compensable injury.

Other cases containing language indicating the statute of limitations runs from the time a compensable injury is reasonably discoverable or apparent are Staples v. A. P. Green Fire Brick Company, Mo. Sup., 307 S.W.2d 457, 461 (“* * * in occupational disease claims * * * the ‘injury’ from which time for filing claims begins to run (§ 287.430) occurs when it becomes reasonably discoverable and apparent that a compensable injury has been sustained. * * * And usually this is when some degree of disability results, which can be the subject of compensation under the Act.”) Wheeler v. Missouri Pacific R. Co., 328 Mo. 88, 42 S.W.2d 579, 582, (“ * * * in cases where latent injuries are involved the claim must be filed within six months from the time it becomes reasonably discoverable and apparent that a compensable injury has been sustained.”); Dees v. Mississippi River Fuel Corporation, Mo.App., 192 S.W.2d 635, 641, (“the one year limitation statute would not begin to run until after the accident and a resulting injury which caused a compensable disability.”); Cleveland v. Laclede Christy Clay Products Co., Mo. App., 129 S.W.2d 12, 16 (“ * * * from the time it becomes reasonably apparent, and discoverable, that the employee has sustained a compensable injury.”); Bridges v. Fruin-Colnon Const. Co., Mo. App., 52 S.W.2d 582, 583 (" * * * from the time it becomes reasonably discoverable and apparent that a compensable injury has been sustained.”)

A serious problem is presented by endeavoring to literally and mechanically apply the above type of language, “a compen-sable injury” to the apparently trivial accident involving a seemingly minor yet com-pensable injury which appears to cure up and later after a year has lapsed from payment of compensation or furnishing of medical, a latent serious injury caused by the same accident becomes apparent or discoverable. In 2 Larson, Workmen’s Compensation Law, Section 78.44, pages 274— 75, this problem is discussed in connection with the case of Kobilkin v. Pillsbury, 9 Cir., 103 F.2d 667, aff. (mem.) 309 U.S. 619, 60 S.Ct. 465, 84 L.Ed. 983. After noting the general rule allowing recovery, applicable to a latent but undiscoverable condition which manifests itself only after the claim period has run, the author states, “There is no excuse for being flustered by the addition of the fact of payment of compensation for a lesser disability in the first instance. * * * The entire question is the simple one of whether the claimant had any reasonable occasion to file a claim sooner than he did. If voluntary compensation was paid, this cancels out the initial disability as a reason for filing a claim, and the case becomes identical to any other latent-injury situation. * * * What should he make claim for? Surely not for the three-week disability — that was voluntarily paid for; surely not the unknown future disability — simply because it was unknown. What then is a reasonably prudent workman supposed to do when he is receiving compensation voluntarily paid by his employer? [Should he] imagine the most pessimistic and extreme of all possible explanations of his symptons, and file claim at once for all of them. Every pain should be attributed to cancer; every back or leg pain to intervertebral disc herniation or osteomyelitis; every shoulder pain to separation of the bones. It may be doubted whether employers, commissioners and courts would find such an era of compensation practice any more satisfactory than would the claimants. * * * The (result) is clearly out of line with the great majority of latent-injury cases, once it is realized that the imperfect ‘knowledge’ of the injury is cancelled out by the voluntary payment of compensation.”

It is apparent in the case before us that the Industrial Commission has used as its rule of law the broad statement “a compen-sable injury” contained in so many cases such as those quoted from above and has applied that language literally in the present case and thereby held that the acceptance of the medical treatment and benefits voluntarily paid by the employer-insurer for the “sprained back” caused it to be a compénsable injury. It was held the limitations period ran from the date of that compensable injury rather than from the time the latent defect (herniated discs) became reasonably discoverable and apparent.

It is our view that the rule of law should be that urged by Larson. The general objective of the Workmen’s Compensation Statute is well known and would seem to be consistent with a recovery in this case. That objective ought not to be emasculated, overridden or unnecessarily restricted by a too technical and impractical decision as to when the one year statute of limitations commences to run on serious latent injuries. Yet we are confronted with the cases cited herein involving factual situations unlike this one, containing general language that seems to govern this case and to support the result reached by the Industrial Commission.

The danger to the employer resulting from so-called stale claims is certainly not as great in the case before us where the accident was timely reported and the company investigated it at least enough to decide to provide medical and other benefits as in that circumstance where the injury appears to be so minor that no compensable injury results at the time of the accident and only becomes discoverable after one year has lapsed. In the latter situation ordinarily there is no investigation by the company for the accident appears trivial and no claim is made. Yet in this latter situation it is the established law in this jurisdiction that there may be a recovery. See, Crites v. Missouri Dry Dock Company, supra and cases cited therein. Additionally, the Industrial Commission which is the acknowledged finder of the facts may protect the employer’s interest, where needed, by a proper exercise of its right to judge the credibility of the evidence.

Conceiving that we are not technically bound by any prior decision of our Supreme Court for the reason there is none that is based on facts presenting this precise question, we are persuaded by considerations we believe to be consistent with the basic purpose of the Workmen’s Compensation Law to reverse the judgment and to remand this cause to the circuit court with directions that it remand this cause to the Industrial Commission for a rehearing consistent with the view which we have expressed; namely, that if it finds appellant suffered a seemingly minor yet com-pensable injury for which voluntary compensation was paid which appeared to cure up and later a latent discs injury caused by the same accident became reasonably discoverable or apparent, the one year statute of limitations does not commence to run until such time as claimant’s latent disc injury became reasonably discoverable and apparent. On this fact issue, as is the established law, the Industrial Commission is the finder of facts and its finding on this issue if supported by competent and substantial evidence would be binding.

Mindful of the broad language of the mentioned several Supreme Court decisions and numerous St. Louis Court of Appeals decisions appearing to support the Industrial Commission’s theory of the law involved, and realizing the public importance of the question involved in this case, we transmit it to the Supreme Court for re-examination of the applicable law. It is so ordered.

All concur.


author: MAUGHMER, Commissioner.

text:
    Roger ANTHONY, Respondent, v. Kenneth JENNINGS, Appellant.
    No. 23750.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Allebach & Ross, J. F. Allebach, Robert L. Ross, Albany, for appellant.
    Fred Kling, Albany, for respondent.
   MAUGHMER, Commissioner.

T-intersection collision. Verdict for defendant. The trial court found error in the contributory negligence instruction and awarded a new trial. Defendant has appealed.

Route O is a graveled state highway in Gentry County, Missouri, running east and west. Its traveled part is approximately 20 feet in width. It is intersected from the north at the top of a hill by another gravel road designated as Route F. This is a T-intersection as Route F does not extend beyond its junction with Route O. There was testimony that the hilltop at the intersection was flat and fell off sharply to both east and west. There was no definite testimony as to (a) how far a driver of an automobile in Route O at the intersection could see to the east and (b) how far the driver of the vehicle proceeding west on Route O could see an automobile in the intersection. All of the evidence was that it would have been impossible to see the roadway over the brow of the intersection hill until the top of the hill was reached.

At about 5:00 p. m. on April 20, 1961, plaintiff, Roger Anthony, alone in his 1958 Ford sedan, was driving east on Route O and planned to turn north and left onto Route F. At the same time defendant Kenneth Jennings was driving a 1952 Ford coach in a westerly direction on Route O and approaching the intersection. It had rained and the roadway was wet.

Plaintiff said that as he approached the intersection he turned on his left signal lights, “pulled up to the intersection and came to just about a complete halt and as I got past the center line of F and turned north, I was headed north when I saw the Jennings’s car out of the corner of my eye”. He then speeded up, but the front of defendant’s automobile struck the right rear half of plaintiff’s automobile.

The defendant said he approached the intersection at a speed of “between 45 and 55 miles per hour”; that he did not see plaintiff’s vehicle until “briefly before the collision”; that the front end of plaintiff’s car was in the north lane and the back end in the south lane of Route O and headed north. Defendant, after the accident, conducted an experiment and said that in making a left turn north on Route O “I reached a place where I could not have seen a car coming up that hill”.

Both parties were familiar with the highway and the intersection. Sheriff Bowman of Gentry County investigated the accident. He found that plaintiff’s automobile came to rest headed northwest and defendant’s “almost in the center of what would be Route F, heading north, with the rear part partially in Route O.” He found debris on the north portion of Route O. There were no skid marks indicating application of brakes by either vehicle. Sheriff Bowman said defendant had estimated his speed at 55 miles per hour. The front end of defendant’s car struck plaintiff’s at the front door post on its right side.

Plaintiff submitted (Instruction No. 1) on defendant’s failure to keep his automobile under proper control and failure to keep a careful and vigilant lookout. Defendant offered and the court gave his contributory negligence Instruction No. A, which we set out in full:

“The Court instructs the jury that it is the law of Missouri that the driver of an automobile within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction, which is within the intersection or so close thereto as to constitute an immediate hazard.
“The Court therefore instructs the jury that if you find and believe from the evidence that at the time of the collision mentioned in evidence plaintiff, Robert Anthony, was operating his vehicle in an easterly direction on Route O and defendant, Kenneth Jennings, was operating his vehicle in a westerly direction on said Route O, and if you further find and believe plaintiff, Roger Anthony, commenced a left turn into Route F by crossing the center of said Route O when defendant, Kenneth Jennings, was so close to said intersection as to constitute an immediate hazard and plaintiff thereby failed to yield the right of way to defendant, Kenneth Jennings, if you so find, then the Court instructs the jury that plaintiff, Roger Anthony, was negligent in the operation of his automobile, and if you further find that the negligence, if any, of plaintiff, Roger Anthony, directly caused or contributed to cause any injuries to his person or damage to his automobile, then the Court instructs you that plaintiff, Roger Anthony, cannot recover from defendant and your verdict will be for the defendant, Kenneth Jennings”.

The jury returned a verdict for defendant. Thereafter the court sustained plaintiff’s motion for new trial “on the grounds that defendant’s Instruction ‘A’ is erroneous and prejudicial error”. On his appeal, defendant asserts, first, it was not prejudicially erroneous to give Instruction A, and second, defendant’s motion for directed verdict at the close of all the evidence should have been sustained as the evidence establishes plaintiff’s contributory negligence as a matter of law. Section 304.021(3), V.A.M.S. provides:

“The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.”

It was by reason of this statute that defendant offered and the court gave Instruction A.

In Carpenter v. Kessner, Mo.App., 330 S.W.2d 270, 273-274, this court considered the circumstances under which a left-turning motorist should be ruled guilty of contributory negligence as a matter of law so as to authorize a directed verdict against him. In that case the collision occurred at the intersection of-47th Street and J. C. Nichols Parkway in Kansas City. Plaintiff was proceeding east on 47th Street and turned left and north. It was a foggy day and the pavement was wet. Plaintiff said that as he commenced his turn he saw defendant about 100 feet away. He thought he had sufficient time to make the turn. When defendant was about 20 feet away plaintiff realized a collision was imminent and speeded up but the front end of defendant’s car struck the right rear fender of plaintiff’s vehicle. Section 304.021(3) supra, as to left turns was invoked. The court directed a verdict for defendant. This court reversed and held the contributory negligence question was for the jury, saying, in part:

“The evidence is that appellant was within the intersection and had proceeded to the center of it while respondent was still a considerable distance east of the intersection. This leaves the question, ‘was respondent so close thereto as to constitute an immediate hazard?’ If so, appellant had the statutory duty to yield the right of way to respondent, and, ordinarily, a a failure to do so would be a failure to exercise the highest degree of care as required by law of the driver of a motor vehicle and would make appellant guilty of contributory negligence. If reasonable minds could not differ on this question then it becomes a matter of law for the court to decide but if reasonable minds could differ on it then it becomes a matter for the jury to decide under proper instructions by the court.
“A fair reading of all appellant’s testimony and its favorable inferences concerning respondent’s speed would not preclude the conclusion that he did not then know the exact speed at which respondent was approaching but thought it was such that he had enough time to safely make his left turn.
“Additionally, appellant’s evidence does not compel a finding that he knew or should have known respondent didn’t see him until approximately the time of impact, and would not permit him to complete a turn he began while respondent was still some 80 feet east of the intersection. One about to make a turn usually has the right to act upon appearances and unless there is a reasonable indication to the contrary, to assume that the driver of the other approaching vehicle will not act negligently and will operate his vehicle in a prudent and lawful manner, (citing cases)”.

We rule that the court did not err in denying defendant’s motion for a directed verdict. The issue of contributory negligence in this case is one for the jury under proper instructions. Was Instruction A such a proper instruction?

As stated in Lincoln v. Railway Express Agency, Inc. et al., Mo., 359 S.W.2d 759, 765:

“It has been frequently stated that traffic regulations are not unyielding and inflexible and are not to be applied rigidly, absolutely and peremptorily without regard to circumstances or conditions, Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, MacArthur v. Gendron, Mo.App., 312 S.W.2d 146, and that the duties thereby imposed may be qualified by circumstances, Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, such as considerations of safety, Lix v. Gastian, Mo.App., 287 S.W.2d 354, emergency conditions, Lewis v. Zagata, 350 Mo. 446, 166 S. W.2d 541, Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736, or impossibility. Politte v. Miller, supra [Mo.App., 301 S.W.2d 839]. In such unusual circumstances deviation from the statutory standard will not be considered as negligence per se.”

In the Lincoln case the violation charged was that defendant negligently failed, when approaching the intersection to make a left turn, to drive in the lane nearest to the center as required by statute.

In Terrell v. McKnight, 360 Mo. 19, 226 S.W.2d 714, the trial court refused plaintiff’s instruction that defendant’s failure to signal his turning into plaintiff’s lane, stopping on the highway without warning and failure to drive as far to the right as possible, amounted to negligence per se. The court, however, gave an instruction that if defendant did those things and the jury found they were reasonably likely to cause a collision, were not in the exercise of the highest degree of care and were negligent, then a verdict for plaintiff was authorized. The Supreme Court approved such rulings.

In Herr v. Ruprecht, Mo., 331 S. W.2d 642, 647, the court said:

“The defendant properly asserts that the proof of negligence cannot rest upon guesswork, speculation, or conjecture and that the mere fact of collision is not sufficient to establish defendant’s negligence. Miller v. Wilson, Mo.App., 288 S.W. 997, 999; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31, 33; Fritz & Groh v. St. Louis, I. M. & S. R. Co., 243 Mo. 62, 148 S.W. 74, 79. However, the fact that a collision occurred and the manner of its happening are evidentiary facts which must be taken into consideration in determining the sufficiency of the evidence, especially in this type of case where the essential question is whether the plaintiff’s vehicle was ‘approaching so closely on the through highway as to constitute an immediate hazard’ and whether the defendant knew or should have known of such danger.”

And 331 S.W.2d on page 652, Judge Storck-man in his concurring opinion points out that:

“Mere abstract statements of legal propositions do not make proper instructions, and an instruction authorizing the jury to return a verdict for a party must require the finding of all essential fact issues necessary to establish the legal proposition on which the right to the verdict is based.
“Under the statute it is only where the hazard is created by the closeness or proximity of the approaching automobile on the through highway that the defendant is required to yield the right of way.”

See also Edwards v. St. Louis Public Service Co. et al., Mo., 365 S.W.2d 483, 486.

In our case the undisputed evidence is that plaintiff entered the intersection, came almost to a stop and proceeded to make his left turn at slow speed. Based upon his testimony, situs of the debris, location of the cars at rest and the parts of each vehicle which came in contact, plaintiff’s car was partly or nearly out of the intersection when hit. Defendant, by his own admission to Sheriff Bowman, was at all times traveling at approximately 55 miles per hour and therefore many times faster than was plaintiff. Neither driver saw the other car until just before the collision. The record contains no evidence as to how far to the east plaintiff, commencing his turn, could have seen defendant’s car approaching from the east. The physical facts and the admitted speeds of each vehicle indicate that defendant must have been some distance to the east when plaintiff commenced his left turn.

Under the evidence we can only guess, and the jury could only guess, as to the location of defendant’s vehicle when plaintiff turned north. We can only guess, and the jury could only guess, as to what plaintiff might have seen if he had been able to see 500 feet to the east, and if he had looked. It is possible defendant was far enough away for plaintiff, in the exercise of due care, to commence his turn. If he had seen defendant some distance away, he might, in the exercise of the highest degree of care, have reasonably assumed defendant saw him and would reduce his speed. It seems apparent by hindsight that if defendant had reduced his speed even slightly, instead of continuing on at 55 miles per hour, plaintiff would have passed safely out of Route O.

Again by hindsight, it is now a demonstrated fact that there was danger of collision If plaintiff, under the circumstances then existing, turned left. The fact that a collision did occur is proof of the existing danger. But it is not proof that plaintiff knew, or in the exercise of the highest degree of care should have known, that defendant was “so close as to constitute an immediate hazard”.

Failure to yield as directed by Section 304.021(3), supra, does not in every instance amount per se to negligence or failure to exercise the highest degree of care, so as to tax such an operator with responsibility for every resultant accident. Each case depends upon its own facts. The evidence may in some cases require a directed verdict. In others, it is a question for the jury. It is best if an instruction hypothesizes the pertinent facts where such facts are in evidence. At the least it must permit and require the jury to decide if the actions complained of amounted to. negligence and failure to exercise the highest degree of care. To instruct a jury that if the motorist turns left and is struck by an oncoming car, then he is negligent and liable is, in effect, directing a verdict. We believe that in this case the evidence and the instruction permit the jury to guess and speculate.

Defendant urges that Garrison v. Ryno et al., Mo., 328 S.W.2d 557, and MacArthur v. Gendron, Mo.App., 312 S.W.2d 146, approve Instruction A as given here. In the Garrison case defendant allegedly entered an arterial highway without stopping and failed to look ahead and laterally before entering, and failed to yield the right of way. The instruction told the jury that if it found defendant ran the stop sign, failed to look ahead and laterally and failed to yield the right of way and if the jury found that such amounted to negligence, as defined in other instructions, their verdict should be for plaintiff and against defendant. It will be noted this instruction posed some of the facts to the jury, and required the jury to decide if such conduct and such violations of the rules of the road enactments, amounted to negligence. It did not bluntly tell the jury that such conduct was negligence and require a verdict against defendant.

The MacArthur case more strongly supports appellant’s position. In fact his instruction A is a copy of the one given in that case. The MacArthur appeal came up on an abbreviated transcript and under an agreement “that evidence was introduced at the trial tending to prove the allegations of petition and answer, the instructions, and the objection to Instruction 3”. We believe the case may be distinguished from ours and quote from the opinion:

“If plaintiff’s criticism is valid No. 3 cannot stand because traffic regulations imposed by statute are not unyielding and inflexible. 60 C.J.S. Motor Vehicles § 271. They are not to be applied rigidly, absolutely and peremptorily without regard to the circumstances or conditions. Wines v. Goodyear Tire & Rubber Co., supra, and cases cited. The duties imposed by the statutory rules of the road may be qualified by the circumstances. Nelms v. Bright, Mo. Sup., 299 S.W.2d 483. Under the circumstances of a particular case there may be a valid excuse for failing to comply with a statutory rule of the road, as where nonobservance of the statute is induced by considerations of safety, Lix v. Gastian, Mo.App., 261 S. W.2d 497, or emergency conditions, Lewis v. Zagata, 350 Mo. 446, 116 S.W. 2d 541; Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736, or where compliance is impossible, as in the case where knowledge, actual or constructive, of the immediate approach of an emergency vehicle comes too late to yield the right of way under an emergency statute”. (Italics ours).

We cannot agree with defendant’s assertion that the instruction in Lay v. McGrane, Mo., 331 S.W.2d 592, 599 “is in practically the same language as Instruction A in this case”. In that case there was evidence that both arrived at the intersection at about the same time. The instruction reads: “ * * * if you find * * * that the automobile of defendant Hays entered said intersection first or that both of said automobiles arrived at said intersection at approximately the same time, then it was the duty of defendant McGrane to yield the right of way to the automobile of defendant Hays, and if you find that defendant McGrane failed so to do, you may find him negligent. * * * (Italics ours). By this instruction the jury was permitted to find negligence but the court did not declare defendant was negligent.

The Springfield Court of Appeals (Lillard v. Bradford, 241 Mo.App. 538, 243 S. W.2d 359, 366) summarized the issue this way:

“Thus the law is that there must be circumstances which would bring to the mind of the driver of the car approaching from the right that there was danger ahead before there would be a duty to stop or to slacken his speed.
“We hold plaintiff’s instruction numbered I was erroneous in that it authorized a verdict against defendant for failure to stop before entering the intersection, regardless of where plaintiff’s truck was at the time or any other conditions which would lead defendant to believe that a collision would occur if he did not stop.”

We are not persuaded by the MacArthur and other cases urged upon us by appellant to approve Instruction A under this evidence or as a correct application of the law. It is possible that at a retrial some additional evidence will be adduced, particularly as to how far east plaintiff could have seen and how far defendant’s car must have traveled going 55 miles per hour while plaintiff was moving from “almost stopped” to the point of impact.

We rule that the trial court did not err in overruling defendant’s motion for directed verdict or in granting a new trial.

The order granting a new trial is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: WOLFE, Acting Presiding Judge.

text:
    Franklin REESE, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, (Defendant) Appellant.
    No. 31291.
    St. Louis Court of Appeals. Missouri.
    May 21, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 26, 1963.

      V. James Ruddy, St. Louis, for appellant.
    Padberg & Raack, Godfrey P. Padberg, William J. Raack, St. Louis, for respondent.
   WOLFE, Acting Presiding Judge.

This is an action for damages arising out of personal injuries which plaintiff suffered when he was struck by one of defendant’s street cars. There was a verdict and judgment for the plaintiff, and the defendant prosecutes this appeal.

There is but one point raised upon the appeal, and that is that the plaintiff failed to make a submissible case under humanitarian failure to slacken the speed of the car and to warn of its approach.

The accident here under consideration happened on Delmar Boulevard, in the City of St. Louis. Delmar Boulevard runs to the east and west. To the east of the point of the accident it is intersected by Clara Boulevard, which runs to the north and south. The traffic there is controlled by traffic lights. The next street entering Delmar to the west of Clara is called Del Monte Way. This street does not cross Delmar, but enters into it from the south and ends on the south side. Farther to the west, DeBaliviere Avenue, a north and south street, intersects with Delmar. Traffic at the DeBaliviere intersection is also controlled by traffic lights. Delmar, at the place in question, is 76 feet wide. There are two sets of street car tracks that run down the approximate center portion of Delmar and occupy a strip of the street 17 feet 3 inches wide. The first rail of the westbound tracks is 29 feet 6 inches from the north curb line of Delmar.

The accident occurred on November 9, 1960. At that time the plaintiff lived at S622 Delmar. This was an apartment house on the south side of the street and a short distance east of Del Monte Way. It was between 6:30 and 7:00 p. m. The evening was damp and overcast with misting rain. The plaintiff had gone to a drug store on the north side of Delmar, at the corner of Delmar and Clara. From there he had gone to a place called “Bottoms-Up Steak House” to get a “six pack” of beer. “Bottoms-Up” was also on the north side of Delmar, and slightly west of a point directly opposite the apartment house where the plaintiff lived. He came out of “Bottoms-Up” with his “six-pack” of beer and started, at a slight angle eastwardly, across the street toward his residence on the south side.

His crossing was about twelve to fourteen feet east of the Del Monte Way intersection. Before he started to cross the street, he looked both to the east and west. Clara Boulevard, according to his estimate, was about 200 feet to his east, and he saw that the traffic light was red, and also that the light on DeBaliviere was red. He saw no traffic between these two intersections as he started to cross to the south. When he was IS to 18 feet south of the north curb line of Delmar, he looked to the left, or east, and saw no westbound traffic. He then looked toward DeBaliviere for any right-turning traffic that might be entering from there, and there was none. There was nothing to obstruct his vision.

He continued walking at a pace faster than normal, but could have stopped within one step. As he walked from the point in the street IS to 18 feet south of the north curb line, he continued to look to the west. He saw no street car, heard none, and he heard no warning. He was past the second rail of the westbound tracks when he was struck. He did not know what struck him.

A Mrs. Opal Coombs testified that on the evening of November 9, 1960, she had just come out of the door of the apartment building at 5322 Delmar. She had taken a few steps, and looking northwest she saw a man struck by a street car. She saw nothing before the moment of impact, and the street car stopped immediately. She said that the occurrence took place right at Del Monte Way.

A police officer who arrived at the scene of the accident a short time after it occurred stated that he walked up to a street car that was “stopped there”. He said that there was blood on the street to the left of the car. He said that if you looked down from the driver’s seat in the car, you would “just about be looking down at it.” The blood was next to the street car, which was the only vehicle in that area.

The defendant put on no evidence concerning liability in this case.

In support of its assertion that the plaintiff failed to make a submissible case, under humanitarian failure to warn and slacken speed, the defendant points to the evidence as it relates to the street car’s direction of travel. It is maintained that there is no evidence that the street car involved in the accident was a westbound or an eastbound car.

There was, in fact, no testimony as to the direction that the street car was traveling. There was no evidence as to which track the stopped street car was on. Neither is there any evidence as to whether or not the blood stain by the street car was to the north or the south of the stopped street car. The blood is only placed to the left side of the car, and it could be on that side, no matter which direction the car that struck the plaintiff had been traveling.

However, in passing upon the sufficiency of the evidence to make a submis-sible case, we must view the facts, and the reasonable inferences to be drawn from them, in a light most favorable to the plaintiff’s case. With this in mind, we conclude that a valid inference could be drawn that the street car which struck the plaintiff was westbound. We reach this conclusion from the plaintiff’s statement that he was looking to the west at all times after he started to cross the track, and that no car came from the west. It would be reasonable for the jury to infer that he would have seen an eastbound car, while looking in the direction of its approach, when it was immediately upon him. Since he saw no eastbound car, it could be reasonably concluded that the car which struck him was not coming from the west, but was westbound and coming from the east.

The appellant next states that assuming that a westbound street car struck the plaintiff, there is no evidence as to the distance the car traveled to the point of impact. Neither is there any evidence of its speed. There is no evidence as to where the car was when it would become reasonably apparent that the plaintiff was oblivious to the car’s approach and the ability of the operator to slacken the speed or give a timely warning thereafter.

The plaintiff-respondent contends that since he looked to the left when he was between 16 feet 4 inches and 19 feet four inches from the place where he was struck, at some place along his line of travel it should have been reasonably apparent that he was oblivious to the approach of the car. In support of his contention that a case was made under the humanitarian doctrine, we are cited by the respondent to Sperry v. Tracy Dodge-Plymouth Company, Mo.Sup., 344 S.W.2d 108; Wofford v. St. Louis Public Service Co., Mo.Sup., 252 S.W.2d 529; McDonough v. St. Louis Public Service Company, Mo.Sup., 350 S.W.2d 739; Sheerin v. St. Louis Public Service Company, Mo.Sup., 300 S.W.2d 483; Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972; Lang v. St. Louis-San Francisco Railway Company, 364 Mo. 1147, 273 S.W.2d 270; Wabash Railroad Company v. Dannen Mills, Inc., 365 Mo. 827, 288 S.W.2d 926. In all of these cases there is some evidence of the distance that the defendant traveled, the speed, the ability to slacken speed or stop. None of these factors are present here.

Under the humanitarian doctrine, no duty to act is imposed upon a defendant until a situation of peril arises. This is the time that the doctrine commences to operate, and neither antecedent negligence of the plaintiff or the defendant requires consideration. Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Harrow v. Kansas City Public Service Co., 361 Mo. 42, 233 S.W.2d 644. The often repeated requisites for a humanitarian case are stated in Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 1. c. 484. We state them again:

“(1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured.”

The humanitarian doctrine has not altered the rule that the burden of proof is upon the plaintiff. Vietmeier v. Voss, Mo. Sup., 246 S.W.2d 785, and the claimed negligence of the defendant cannot be left to speculation, guess, or conjecture. It is stated in Vietmeier v. Voss, supra:

“Sometimes humanitarian cases require niceties in calculations for the doctrine begins to operate and seizes the facts when imminent peril arises. The duty to make his case is upon plaintiff and he must remove it from the field of conjecture and establish it by substantial evidence of probative value, or by inferences reasonably to be drawn from the evidence. If the evidence presents a situation from which liability or non-liability may be equally inferred, the court must declare that no case has been made. Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74,79; State ex rel. Dutcher v. Shelton, 249 Mo. 660, 156 S.W. 955, 965. This involves the question of whether the evidence is in truth substantial, which is one of law, as distinguished from mere conflict in the evidence, which is one of fact for the jury.”

There is no evidence in the case before us upon which a jury could, by fact or inference, find that the operator of the car could have reacted by slackening speed or sounding a warning after the plaintiff came into a position of peril. We do not know where the car was at any time or the speed at which it traveled.

All that we have in evidence is that the plaintiff walked upon the defendant’s track on a dark and rainy night and was struck by a street car. It is true that we have the distance that he walked from the curb to the point of collision, at a faster pace than normal, and that we also have his statement that when he was out in the street there was nothing to obstruct his view as far as Clara Boulevard. But he never saw the car, and from the utter vagueness of the evidence, no one could say where or when the operator of the car could have seen him. In order to bring into play the “niceties in calculations” referred to in Vietmeier v. Voss, supra, we must have some factual basis from which to start calculations, and here we have none.

The evidence leaves the second and third requisites for a humanitarian case, as stated in Banks v. Morris & Co., and quoted supra, without proof by fact or inference, and by reason of this plaintiff failed to make a case properly submissible to the jury under the humanitarian doctrine.

The judgment is reversed.

ANDERSON, J., and FRANKLIN REAGAN, Special Judge, concur.

RUDDY, J., not participating.


text:
    Grace L. BELL, Plaintiff-Appellant, v. ESTATE of Dr. A. J. BELL, Deceased, S. Floyd Middleton, Administrator, Defendant-Respondent.
    No. 23768.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.
    R. S. McFarland, Nevada, for appellant.
    A. E. Elliott, Nevada, for respondent.
   HUNTER, Judge.

This is an action by appellant, Grace L. Bell, against the estate of Dr. A. J. Bell, deceased, for the value of meals and personal services allegedly provided by her to Dr. Bell from September 1, 1953, to May 16, 1959.

By way of background, appellant is the wife of witness Arthur J. Bell, the son of Dr. A. J. Bell, of Nevada, Mo., who died at the age of eighty-nine on May 16, 1959. Dr. Bell left no other surviving children but did have surviving him at least one grandchild from another child.

During his latter years Dr. Bell suffered from arteriosclerosis, a duodenal ulcer and possibly Parkinson’s disease. About September 1, 1953, Mr. Bell and appellant, moved from Sylacauga, Alabama to Nevada, Missouri, to look after Mr. Bell’s aging mother (then living) and father. Mr. and Mrs. Bell moved into a house in Nevada which, according to some of the testimony, was owned by Dr. Bell. It was the practice of Dr. Bell after his wife passed away in September, 1953, to eat some of his meals at the home occupied by his son. He ate other meals in restaurants in Nevada. About March 1, 1959, Dr. Bell was hospitalized in Pulaski, Tennessee, for three weeks and Mr. and Mrs. Bell stayed in Pulaski, Tennessee, the following six weeks to help care for him. The other times in question Dr. Bell resided in Nevada, Missouri, apparently to the date of his death.

The cause was tried to a jury which returned its verdict in favor of appellant in the sum of $5,908.00, the full amount of the claim. Thereafter, in ruling on respondent’s motion for a new trial, the trial court ordered, “If plaintiff will in 10 days remit $2,416.00 of her claim and the jury’s verdict, and consent to entrance of judgment in the amount of $3,492.00, motion for new trial will be overruled; otherwise motion will be sustained and a new trial will be entered herein.”

Appellant refused to remit, and after ten days had passed the trial court sustained respondent’s motion for a new trial and granted a new trial “because (1) the verdict of the jury is excessive, and (2) because the verdict of the jury includes items that are barred by the statute of limitations.”

Appellant’s present contentions are that the evidence is such that the trial court was not justified in setting aside the jury’s verdict as excessive, and that no part of the claim was barred by the statute of limitations.

The law concerning the right of a trial court to set aside a verdict on the ground the verdict is excessive and to order a new trial is well settled. In Union Electric Company of Missouri v. McNulty, Mo. Sup., 344 S.W.2d 37, 39, it was summarized, “Granting a new trial on the ground a verdict is excessive or inadequate is a holding that the verdict is against the weight of the evidence on that fact issue. Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333(15), 8 A.L.R.2d 710; State ex rel. State Highway Comm. v. Liddle, Mo.App., 193 S.W.2d 625(1); Supreme Court Rule 78.01, V.A.M.R. Such ruling is peculiarly within the sound discretion of the trial court, which may weigh the evidence, whereas appellate courts do not weigh the evidence in reviewing a jury tried action at law (Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126, 129); and the trial court’s action is not overturned unless the trial court has manifestly abused its discretion, as where its action is not supported by any substantial evidence.”

The question for our determination is whether the trial judge was guilty of an abuse of discretion in granting a new trial on the ground the verdict was against the weight of the evidence in the respect that the verdict was excessive, and this the appellant has the burden of establishing on the record before us. Appellate courts determine the issue as one of law and do not weigh the evidence or pass on the credibility of the witnesses, and must view the evidence in the light most favorable to affirming the trial court’s action. Huffman v. Mercer, Mo.Sup., 295 S.W.2d 27; Bierman v. Langston, Mo.Sup., 304 S.W.2d 865; Greco v. Hendricks, Mo.Sup., 327 S.W.2d 241. If the evidence viewed in such light does afford reasonable and substantial support for the trial court’s order or remittitur, then there is no abuse of discretion, and the trial court’s action must be sustained. Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566.

In her “List of Services Performed” appellant claims that from September 1, 1953, to October 30, 1953, she prepared and served Dr. Bell three meals for sixty-days of a value of $4.00 per day for a total of $240.00, and that from November 1, to December 15, she provided three meals a day for forty-five days, claiming $180.00.

Appellant did not testify on the issues, and her husband’s testimony on her behalf was that his father took three meals a day with him “until nearly the first of November, I don’t know just exactly the date that he stopped taking meals there. * * * I don’t know just exactly how long it was * * *. It was continuous and then it would vary too, you would never know when he was coming in or when he was going to be there, he would jüst walk in, stay long enough to eat and leave.”

Appellant claimed that in 1954 she provided three meals a day from January 12, to June 7th, a total of 147 days at $4.00 per day for a total of $558.00; from June 21, to September 21, three meals per day for 90 days for a total of $360.00; and from October 1, to December 24, three meals per day for fifty-five days for $220.00. In 1955, from January 25 to April, she provided three meals per day for 77 days for $308.00. The total of these claims for meals is $1,896.00.

Appellant’s husband’s testimony relied upon to support this portion of her claim was vague. When Dr. Bell ate with them “was continuous and then it would vary too.” Also when with them he sometimes ate only one or two meals each day claimed, but the charge was still $4.00 for each such day. Mr. Bell was asked, “Q. * * * When he was boarding at your house, who paid the grocery bill? A. I paid most of it, my wife paid it, the rest of it. * * * I furnished all of it but about $600.00. * * Q. In the whole eight years she only had $600.00 of her own money ? A. That’s right.”

Appellant makes no claim for anything for the period from April,. 1955, to January 20, 1957. Commencing on January 21, 1957, to May 16, 1959, appellant claims she provided meals, nursing care, house cleaning, sewing and attending Dr. Bell’s personal needs for a total of $4,012.00. The meals were again valued at $4.00 per day no matter how many were eaten on a particular day. The rate charged by appellant for the other services mentioned was not specifically testified to, although there was testimony as to charges made by others in that vicinity for practical nurse care.

Respondent adduced evidence to the effect that during some portions of the time Dr. Bell was being charged for three meals a day by appellant he was taking some of his meals at a local restaurant where he paid on an average of about 5(⅛ per meal. Dr. Bell’s grandson testified that during a part of the time in question, and at a time his grandfather had appellant and her husband staying at Dr. Bell’s house, Dr. Bell paid for the biggest part of the groceries.

We believe it unnecessary to further detail the evidence. It is clear that appellant is claiming several thousand dollars for meals she asserts she provided Dr. Bell over an eight year period. Yet her husband’s testimony which she relies upon as her proof is to the effect she had available only $600.00 of her own money during this entire period. His evidence indicates he and not his wife paid the bulk of the expense of these meals on which she bases her claim. While appellant, through her husband’s testimony, valued these meals at the rate of $4.00 per day there is other evidence indicating that evaluation is far too high. As to exactly how many days Dr. Bell ate one, two or three meals she provided, or how many meals she provided him on any particular day the testimony is vague. It is also vague concerning much of the other services and personal care she claims to have provided and the value thereof. On this testimony the jury gave her recovery in the full amount of her claim.

Assuming, without deciding, that none of the claimed items is barred by the statute of limitations it is our view that the evidence considered in its entirety fully supports the trial judge’s grant of a new trial for the reason that the jury’s verdict was excessive. The record before us does not demonstrate any abuse of discretion by the trial court in granting a new trial.

Having so decided, it is unnecessary and of no usefulness to determine the question of the statute of limitations, stated by the trial court as an additional reason for the grant of a new trial. The parties are now enlightened on this subject by their research as revealed by their briefs, and this question may not arise on a retrial; or if it does, it may be presented under different or additional evidence.

The order granting a new trial is affirmed.

All concur.


author: BROADDUS, Presiding Judge.

text:
    Harley J. JOINER, Appellant, v. FARMERS EXCHANGE COOPERATIVE ASSOCIATION, NO. 304 (Employer), M. F. A. Mutual Insurance Company (Insurer), Respondents.
    No. 23780.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.
    Earl E. McCleave, Kansas City, for appellant.
    J. F. Allebach, Robert L. Ross, Allebach & Ross, Albany, for respondents.
   BROADDUS, Presiding Judge.

This is an appeal by the employee from the order of the Circuit Court affirming the final award of the Industrial Commission which denied compensation.

The employer, Farmers Exchange of Mt. Moriah, Missouri, operated a grocery store, produce buying station, a service station and a trucking service. Appellant, Harley J. Joiner, age 45, had been employed by the Farmers Exchange for 4 years as general handyman. He worked in the gasoline service station, waited on trade in the grocery and feed store, unloaded eggs and produce and operated the truck owned by the employer.

Appellant’s regular hours of employment were from 7:00 A.M. to 6:00 P.M. However, when he was operating the truck he usually started at 6:00 P.M. and worked until he had finished. He received overtime pay after 6:00 P.M. On Monday, May 9, 1960, which would have been two days before appellant suffered the heart attack, he delivered fuel and worked at the service station until 3:00 P.M. Appellant then loaded stock and hauled the stock to St. Joseph. It was 11:00 P.M. when the stock was unloaded and he went to bed in St. Joseph shortly after that time. He was up at 6:15 A.M. on Tuesday, May 10th, and turned in a feed order at the M. F.A. Farm Supply. After appellant ate breakfast, he loaded feed at the M.F.A. Supply and at Houston Feed in St. Joseph. The method used was that the feed would be wheeled out to the truck and appellant helped load it on the truck. Appellant then left St. Joseph and arrived in Mt. Mo-riah at about 2:30 P.M. About 2½ tons of the feed was for Paul Wright of Mt. Mori-ah and it did not take very long to unload this feed, as Wright had two men to help appellant. After unloading Wright’s feed appellant went to the respondent’s warehouse to unload the remainder of the feed. Appellant was informed that he was to go back to St. Joseph with a load of hogs after the feed was unloaded. There was about ⅞½ tons of feed remaining on the truck to be unloaded at respondent’s warehouse, and appellant unloaded about 4 tons of this without help. Clarence Rinehart, manager of respondent’s business, helped unload the other 1⅜⅞ tons. The size of the load of feed was not unusual and the method of unloading the feed was exactly the same whether appellant had help in unloading or not. This method was to pick up the 50 pound or 100 pound bag of feed, place it on the shoulder, walk out of the truck down a ramp, and place it on a pile. After •the feed was unloaded, appellant drove his truck to Cainsville and loaded some hogs which were taken to St. Joseph. He then returned from St. Joseph and went to bed at his home in Mt. Moriah at about 12:30 A.M. When he arrived home he was tired.

Appellant went to work the next morning, Wednesday May 11th, 1960, at 7:00 A.M. He worked in the store until about 8:15 A.M. when, while changing eggs from a 12 or 15 dozen case to a 30 dozen case, he suffered a heart attack. The chores he did at the store on Wednesday morning were the same that he ordinarily did. He had lifted eggs from a 15 dozen case to a 30 dozen case many times before in the course of his employment.

During the 4 years that appellant had worked for respondent he had done practically all of the trucking of livestock and also hauled all of the feed. There were times when he had made as many as four trips per week to St. Joseph with livestock. Livestock is ordinarily hauled at night. On numerous occasions appellant would stay all night in St. Joseph and bring back a load of feed the next day. The feed would then be unloaded with the help of Mr. Rine-hart, and on a few occasions appellant would then take another load of livestock back to St. Joseph. He would, on these occasions, get back to Mt. Moriah about midnight and go to work at 7:00 A.M. on the following morning. After getting to work on these occasions he would do the same chores that he did on the morning he suffered the attack. Appellant was working at his regular speed on the morning of the heart attack. Appellant testified that he was angry and upset when he found out he would not have help in unloading the feed on Tuesday afternoon and unloaded the feed at a faster pace than he usually did. Appellant had not previously suffered from a heart condition, and the first pains that he had, were when he was handling the eggs at about 8:15 A.M. Wednesday, May 11th, 1960.

Dr. Albert F. Nibbe, M.D., a general practitioner of Bethany, Missouri, treated appellant at the Bethany Hospital at 9:00 A.M. on Wednesday, May 11th, 1960, and testified for appellant.

Appellant was hospitalized with a diagnosis of possible coronary occlusion. Electrocardiograms and laboratory tests confirmed that there was a damage to the anterior of the heart. Fie was kept in bed for about two weeks and then allowed to be up in a chair for an additional seven days before being discharged from the hospital on May 31st, 1960. The final diagnosis was an anterior myocardial infarction with a secondary complication first degree heart attack. Prior to the attack appellant suffered a coronary artery disease, atherosclerosis, which is a condition in which deposits are laid down within the lining of the coronary arteries of the heart. This disease would have eventually been disabling. Dr. Nib-be, in answer to a hypothetical question, stated: “I feel that the amount of physical activity which is described and also the amount of emotional frustration which this particular patient would be likely to develop, with my understanding of his personality, would be a participating cause for the type of heart attack which he sustained.”

Dr. F. Stanley Morest, M.D. of Kansas City, Missouri, a heart specialist with 30 years experience, testified on behalf of respondent. He examined appellant on March 10th, 1961, and from his examination and a review of the hospital records of the Memorial Hospital at Bethany he agreed with Dr. Nibbe’s diagnosis of acute myocardial infarction, small size lesion. Appellant had good and standard treatment and made a good recovery. In answer to a hypothetical question setting out the facts in the case Dr. Morest gave an opinion that the activities of appellant had no particular bearing on the heart attack. Dr. Morest further testified that a heart attack precipitated by over exertion will occur within 2½ to 5 hours after the exertion, and in this case, the time interval was too great for exertion to have been the cause of the attack.

The Industrial Commission found that appellant “did not sustain an accident on or about May 11th, 1960, arising out of and in the course of his employment.” And: “We further find from the credible evidence that the employee has failed to prove that his heart attack resulted from or was causally related to the alleged accident.”

The late and well considered case of Greer v. Missouri State Highway Department, Mo.App., 362 S.W. 2d 773, is very similar to the instant case on the causation issue. In the language of the Court, 362 S.W.2d at page 774, the problem presented was:

* * * The sole question is whether there was causal connection between an accident which occurred on April 6, 1959, and a coronary occlusion thereafter which resulted in myocardial infarction.”

As in the instant case, the referee found that causation existed and the Industrial Commission reversed the finding of the referee. The Circuit Court affirmed the Industrial Commission and was in turn affirmed by the Springfield Court of Appeals.

Claimant’s doctors testified that the infarction was caused by an accident and employer’s medical witnesses testified there was no connection between the accident and the infarction.

The role of the Courts in this dilemma is stated by Presiding Judge Ruark, 778 of 362 S.W.2d:

“It is not our province to weigh the evidence and substitute our judgment on the evidence for that of the commission. Our review is limited to determining whether such tribunal could have reasonably made its findings and reached its result upon the evidence before it. If there is competent and substantial evidence upon which to base the award and if such award is not clearly contrary to the law or the overwhelming weight of the credible evidence, we are bound to affirm it. This general rule has been stated so often that we feel it is unnecessary to recite authority. The mere statement of the rule necessarily carries the implication of deference to the commission in respect to its findings on disputed questions of fact. The finding of the commission need be based upon only a reasonable probability. Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 218 S.W. 2d 765; Lunsford v.. St. John’s Hospital, Mo.App., 107 S.W.2d 163, 166; Gardner v. Ford Motor Co., Mo.App., 130 S.W.2d 201(6); Leonard v. Fisher Body Co., St. Louis Division of General Motors Corporation, Mo.App., 137 S.W.2d 604, 610.”

Again at page 778 of 362 S.W.2d the Court states:

“A settled rule of law is that, where the right to compensation depends upon the acceptance of one of two conflicting medical theories, the question to be determined is one of fact to be weighed by the commission, and we are not to disturb the finding unless the commission acted unreasonably in accepting testimony which was not substantial or in deciding the case against the overwhelming weight of the evidence.” (Citing cases.)

On this issue, the testimony of Dr. Mor-est, a heart specialist of 30 years experience, supplies the competent and substantial evidence to support the finding of the Commission that the activities of claimant Joiner did not cause the heart attack.

In the transcript there is set out a hypothetical question to Dr. Morest which was answered as follows:

“A. My opinion is that these duties, as described in the question, of the day before the heart attack, had no particular bearing on this man getting the heart attack at that time.”

The question, and answer to it, alone, is competent and substantial evidence to support the finding of the Industrial Commission. Suppose the situation had been reversed and the answer to this hypothetical question had been that the heart attack was caused by the activities outlined in the question. Would it be seriously argued that such a question and answer would not be substantial and competent evidence on the issue of causation and therefore would support an award for appellant?

The transcript contains further testimony of Dr. Morest which would satisfy the test of competent and substantial evidence on this issue. For example, he testified that heart attacks after heavier than normal activity would occur within to 5 hours. In this case the activity relied upon by appellant Joiner was completed by 5 :00 P.M. on May 10th, and the first pains appeared at approximately 8:15 A.M. on May 11th, which would be some 15 hours later.

It is clear that the finding of fact by the Industrial Commission that the activities of appellant were not causally related to the heart attack is supported by competent and substantial evidence and this finding should not be disturbed by this Court. It therefore follows that the issue as to whether an accident within the meaning of the Workmen’s Compensation Act occurred is no longer of any importance because compensation would be payable following an accident only if that accident were the cause of the resulting injuries.

The judgment is affirmed. All concur.