author: TITUS, Judge.

text:
    Wallis E. HODGES et ux., Plaintiffs-Respondents, v. Edna JOHNSON, Defendant-Appellant.
    No. 8646.
    Springfield Court of Appeals. Missouri.
    July 18, 1967.
    Remittitur Filed July 25, 1967.

      Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant-appellant.
    Sam F. Hamra, Jr., Springfield, for plaintiffs-respondents.
   TITUS, Judge.

This appeal poses but two complaints: (1). the Greene County Circuit Court erred in permitting improper argument by plaintiffs’ counsel, and (2) the verdicts are excessive. Only eight months elapsed from the November 24, 1965, automobile accident until the jury awarded Wallis E. Hodges $10,000 and his wife, Beverly R. Hodges, $2,500 on her derivative action for the loss of her husband’s “society, consortium, companionship, love, affection and support.” Having profited nothing in the trial court by after-trial motions, defendant positioned her predicament here.

At the time of the casualty Hodges was a twenty-nine year old traveling carpet and rug salesman whose employment afforded him a monthly drawing of $500, plus commissions and expenses. The record is wholly silent as to the amount of commissions, if any, plaintiff may have earned over the drawing account either before or after the accident. Before the collision, and when not traveling, Hodges was said to be a cheerful helpmate to his wife (who also worked) in performing household chores such as window washing, operating the vacuum sweeper and hanging and unhanging laundry. He was depicted as an avid shrub trimmer, yard tender, golfer, water skier, and bowler who enjoyed good health. The Hodges’ marital life was described as “very active.” They had three children.

Mr. Hodges was hospitalized following the accident until December 20, 1965, and returned to employment on January 31,1966. The collision produced two or three fractured ribs (the doctors not in accord) that “were in good apposition * * * [and] healed [uneventfully] by normal intent or callus formation [without] misalignment.” Chest and back pains were experienced “for a couple of months after I got out of the hospital and it has since gradually went out.” A cut to the right forearm one-half inch proximal to the ulnar styloid healed without infection, and one of plaintiff’s doctors said, “[I]t is possible * * * he can have some residual pain there from an impinged [cutaneous] nerve or from strictly the scar formation.” Another physician agreed the affected nerves would “take care of themselves over a period of six months to a year.” Hodges’ doctors testified he had also experienced “just a simple neck strain” or “cervical sprain * * * localized primarily to this one ligament attachment * * * at the juncture of the neck and chest segments.” No doctor testified to any permanent physical disability although it was said Hodges will “have some residual soreness * * * for awhile” or his condition “could [last] * * * for an indefinite period.” But for the chest films evidencing fractured ribs, all x-rays were negative.

There was no testimony or claim Hodges lost any income because of the accident. His hospital and medical charges were $1,-353.

When released from the hospital Hodges was “much improved” although “at that time I was unable to do anything, just loafed * * * around the house.” The doctor treating plaintiff in the hospital saw him after discharge on December 27, 1965, and January 10, January 31, and March 14, 1966. Prior to Hodges’ final visit to this physician he had been released “to full duty” and when last seen plaintiff “had a few aches and pains but the primary complaint was to the right chest * * * and wrist.” This doctor “could find nothing physically wrong with him that would keep him from performing his normal activities” and no cervical collar was ever prescribed because “there was no need for a collar, no, sir.”

Hodges consulted with another doctor on March 25, 1966. “His chief complaints at the time * * * were of aching discomfort in the lower portion of his neck.” No cervical muscle spasm was evident, the neurological examination was negative, and “he had near normal range of motion of his neck.” Plaintiff complained of pain on extreme neck movements, was given medication, a novocain e-cortisone injection “around the spinus processes of the * * * 7th cervical and 1st thoracic vertebrae,” and “a neck support to splint and rest his neck.” He again visited this doctor May 2, May 13 and July 22, 1966. “The patient has improved slightly as of the time of my [last] examination and I’m not sure how much he will continue to improve.” Between June 8 and July 1, 1966, plaintiff received five treatments from a chiropractor who “worked on my shoulder area and again down into my back and she laid me on my right side and worked in my neck.”

Plaintiff wore the neck collar “steady * * * for a period of two months” and thereafter when driving “any distance * * * and when I’m tired.” Hodges testified that because of his injuries the bowling “was terminated“I’ve hired a neighbor boy to do this [yard] work;” housework has ceased, and sports participation is at a bare minimum, all “due to this hurting and pain in my shoulders and neck.” After returning to work and continuing up to trial time, Hodges said he deferred from carrying his rug and carpet sample albums (weighing three to twenty pounds) from his automobile into a customer’s store because doing so “was putting a strain on * * * my shoulders and my neck, and maybe a day or two after that I’d feel like an old man around ninety years old.” The only effect this had on his work was that “occasionally [he] would have a customer come out to the car to look at the samples.” In describing her post-accident husband, Mrs. Hodges said, “[H]e’s tired most of the time, he’s irritable with the children, and he’s nervous.” A neighbor observed plaintiff to be “very sullen and rather crabby.”

In considering defendant’s first complaint of error, we quote that portion of the closing argument to which the point is directed:

“[Plaintiffs’ counsel]: Count One is Wallis Hodges’ claim for his injuries that he has sustained and his medical and hospital bills that he has incurred in the past and has to- incur in the future. This is for his permanent physical disability. * * * This is for his loss of earning an income and earning capacity in the future. He is a commission salesman. How much is he going to lose the rest of his life because he has to get buyers to come out to his car to look at samples.
“[Defendant’s counsel] : If Your Honor please, I object to that argument as purely speculative, there’s no evidence in this case at all in regard to that.
“The Court: Sustained. I don’t believe there’s any evidence * * * of a permanent — it was indefinite. * * * I mean the disability.
“[Plaintiffs’ counsel] : On the disability, [the doctor] did state that it would be for an indefinite period of time.
“The Court: He said indefinite?
“[Plaintiffs’ counsel] : That’s right.
“The Court: You can so argue.
“[Defendant’s counsel]: I’m also objecting that there was no evidence of loss of commissions or anything after he returned to work.
“The Court: He was speaking in terms of earning capacity, I believe * * * Proceed * * *
“[Plaintiffs’ counsel]: This is for his loss of earning capacity in the future. * * * This man’s permanently disabled and you know he is. * * * ”

No doctor testified Hodges would require future medical attention or future hospital care. As apparent from the colloquy, the trial court understood and plaintiffs’ counsel tacitly admitted there was no evidence Hodges had incurred any “permanent physical disability.” No claim was made plaintiff had lost any earnings or commissions. In fact, no evidence was tendered as to the amount 'of commissions Hodges had ever earned or received. The trial court properly sustained defendant’s first objection to the argument, and, as this was the only relief requested, defendant stands satisfied in full. The dialogue that followed, however, seemingly terminated in the court’s permission and approval for counsel to argue and imply plaintiff had suffered loss of earning capacity.

It is axiomatic counsel should neither argue nor draw inferences from matters not in evidence and that a trial court errs in permitting such a discourse. Evidence of substantial personal injuries or even of permanent injury is not sufficient of itself to show loss or impairment of earning capacity, past or future. Recovery for loss of earning capacity is not to be permitted when formed from speculation and conjecture, but only when established with reasonable certainty.

Plaintiffs, backed by cited authority, remind us counsel is to be permitted wide latitude in argument and the breadth of the berth afforded is largely a matter for determination by the trial court in the exercise of sound discretion. We agree with these general pronouncements and the doctrine of due deference to be afforded the trial court in discretionary subjects. Nevertheless, we are not obliged to blindly ingest such expressions as anodynes to completely assuage the pain of errors committed by court and counsel. State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., Mo.App., 381 S.W.2d 20, 26.

Whether the statement, “I’m also objecting that there was no evidence of loss of * * * anything after he returned to work,” was sufficiently specific to constitute an objection to any certain part of the argument, we need not decide. Cf., Fennell v. Illinois Central Railroad Company, Mo.App., 383 S.W.2d 301, 307(7). After the trial court made it clear plaintiffs’ counsel would be permitted to argue concerning loss of earning capacity, defendant made no objection, general or specific, to either the court’s remark or the subsequent argument of counsel. Previously cited authority and the record in this case could indicate error on the part of both court and counsel in permitting and making argument relative to impairment of earning capacity. Clearly the claim “this man’s permanently disabled and you know he is,” was not proper under the evidence. However, the alleged misconduct of court or counsel during trial must be called to the attention of the trial court, and the trial court must, by request for instant action and ruling be given an opportunity to grant relief. By having in no way demurred to the court’s remark and ruling or to the latter part of the argument, we deem defendant’s objection thereto to have been waived.

While an appellate court may, as a matter of law, determine whether a verdict under review is in excess of the maximum amount which the evidence in the case would support (Hart v. City of Butler, Mo., 393 S.W.2d 568, 580 [19]; Turner v. Yellow Cab Company of Springfield, Mo.App., 361 S.W.2d 149, 157 [9], and cases there cited), the hackneyed homily persists that each case depends upon its own particular facts. Extensive research and common experience reveal that one reason, among many, two cases exactly alike may never be found is due to the difference in the loquacity of plaintiffs and testifying doctors and the varying preciseness employed by scribes of opinions. Unfortunately no punctilious prescription exists to calculate if a damage suit verdict is excessive. We must, however, afford due regard and careful consideration to the involved injuries and losses; plaintiff’s age; plaintiff’s diminishing earning capacity, if any, resulting from the injuries; changing economic factors; the amount of compensation as awarded and approved in cases of similar or fairly comparable injuries; loss of income, past and future, if any; the amount of medical and similar expenses incurred and which may reasonably be incurred in the future; the purchasing power of the dollar; and the rule of reasonable uniformity of awards for similar injuries. It likewise behooves us to bear in mind the determination of the amount of damages is primarily for the jury and trial court, that appellate courts exercise caution before interfering with or reducing the size of a verdict (and then only when the amount is manifestly unjust), and that the verdict is to be viewed in the light most favorable to the plaintiff. None the less, the ultimate test of excessiveness is what amount will fairly and reasonably compensate for the injuries sustained. Mantz v. Southwest Freight Lines, Mo., 377 S.W.2d 414, 420; Parlow v. Carson-Union-May-Stern Company, Mo., 310 S.W.2d 877, 885(14).

Subjecting ourselves to the foregoing precepts and guides, we have perused every case cited by the parties and many more, some of which, but by no means all, appear as citations in this opinion. As concerns Count One of the petition and the $10,000 verdict awarded Wallis Hodges, the best comparison we have found is Siemes v. Englehart, Mo.App., 346 S.W.2d 560. The simile is, of course, not wholly accurate for, as will be noted, Siemes’ injuries were more serious than those experienced by Hodges. Siemes was injured when his vehicle was struck successively in an intersection by two automobiles. He sustained three fractured ribs and his left lung was partially compressed because of the rib fracture. Also received were injuries to his neck, left shoulder, left arm and left knee. He experienced loss of grip in his left hand, back pains, and numbness in his left arm. At the time of trial (thirteen months after the accident) these injuries and Siemes’ complaints thereof persisted, and for almost a year before trial plaintiff was being treated with eight to ten pound cervical traction for an hour three or four times a week. Neurological examination revealed irritation of the nerves on the left side of plaintiff’s body which resulted in weakness and sensory changes in that area. Siemes lost seven weeks of work and $889 in wages. His medical expenses were $484, making his “special damages” total $1,373. The verdict for Siemes was $7,000 and characterized by the appellate court as “most substantial for the character of injuries plaintiff sustained.”

In comparison with the Siemes case, Hodges’ “special damages” amounted to $1,353. Hodges received two or three fractured ribs but they healed without incident, with no “misalignment,” and without compression to his lung. Chest and back pains experienced had “gradually went out,” whereas Siemes was still having these pains (and others) thirteen months after the accident and was still undergoing active treatment three or four times a week. Hodges’ neurological examination was negative while that of Siemes was positive for strength and sensory changes. Hodges lost no grip in his hand and his chief complaints at trial related to his “shoulders and neck” which his own doctors ascribed to “just a simple neck injury,” or “cervical strain.” There was no evidence Hodges sustained any permanent physical disability.

In consideration of the many cases reviewed in addition to Siemes, supra, arid affording Mr. Hodges the benefit of his best evidence and the time differential between the date of his accident and that experienced by Siemes and the plaintiffs in the other authorities read, we view a verdict in the amount of $6,500 to be liberal, but if awarded by a jury it would be permitted to stand.

Until the Supreme Court of Missouri en Banc, with three judges dissenting, determined otherwise in Novak v. Kansas City Transit, Inc. (March 1963), 365 S.W.2d 539, Mrs. Hodges had no right in this state under then existing case law to maintain an action for damages for the alleged loss of her husband’s “society, consortium, companionship, love, affection and support.” We are, consequently, hampered by a dearth of Missouri authority on how to gauge a wife’s damages, if any, in a derivative action especially where, as here, defendant also complains of the excessiveness of the verdict given the wife. In overriding the argument a wife’s consortium action would permit double recovery of damages and overlapping of benefits, the Novak opinion said at 1. c. 544: “Such result may be avoided by delineating accurately the items properly includable in the husband’s damages and by permitting the wife in her separate action to recover for the loss of only those elements of consortium which, under the facts of a particular case, represent separate and distinct loses to her.” (Our emphasis).

The majority opinion in Shepherd v. Consumers Cooperative Association, Mo. (en banc), 384 S.W.2d 635, 639-640, undertook to provide an example of what is meant by the “separate and distinct” losses to the wife and the “other rights to which a wife is entitled” by repeating the wife’s petition as quoted in Bernhardt v. Perry, 276 Mo. 612, 208 S.W.2d 462, 464, 13 A.L.R. 1320. By Count Two of the petition herein, Mrs. Hodges alleged damages only for “the loss of the society, consortium, companionship, love, affection and support” of her husband which approximately resulted from his injuries. With the exception of those quoted, none of the allegations of the Bernhardt petition appear in Mrs. Hodges’ pleadings. Furthermore, there was no evidence in this case to have supported such averments had they been made.

“ * * * [O]ne element of consortium [is] the loss of support. Consortium, however, includes, in addition to material services, elements of companionship, felicity and sexual intercourse, all welded into a conceptualist unity.” Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 891, 86 A.L.R.2d 1184. Consortium as a right of the marital relation, is also said to include society, conjugal fellowship, love, affection and other similar terms, all of which are synonyms one for the other. 26 Am.Jur., Husband and Wife, §§ 5-8, pp. 634-636 ; 41 C.J.S. Husband and Wife § 11, p. 402; and the numerous cases cited in these authorities. One authority correctly notes the meaning of consortium is vague and indefinite, and the various attempts at defining it only aggravate its nebulosity.

A wife’s claim for loss of support of necessity stems from the husband’s loss of income and impairment of earning capacity. Many cases recognize that to permit both husband and wife to recover for these items would amount to awarding double damages. The Supreme Court of Illinois in Dini, supra, says “Any conceivable double recovery, however, can be obviated by deducting from the computation of damages in the consortium action any compensation given her husband in his action for the impairment of his ability to support,” although in the next breath it observes “the concept [that] consortium is capable of dismemberment into material services and sentimental services * * * is but a theoretician’s boast.” The dissenting opinion in Deshotel v. Atchison, Topeka & Santa Fe Railway Co., 50 Cal.2d 664, 328 P.2d 449, 454, says, “[I]t is a simple matter to determine the damages to the wife’s consortium in exactly the same way as those of the husband are measured in a similar action and subtract therefrom the value of any impairment of his duty of support.” The writer in Deshotel further noted “Simple mathematics will suffice to set the proper quantum.” The problem which immediately comes to mind is how can an appellate court on review ascertain what portion of a lump sum verdict constitutes the jury’s award to the husband for his loss of wages, impairment of earning capacity and ability to support. Also, how is an appellate court to know what part, if any, of a lump sum awarded the wife in her derivative action was given or intended as damages for loss of support? It would seem these amounts would necessarily need to be known before a deduction by “simple mathematics” could be made to arrive at ‘ the quantum to which the wife is rightfully entitled. Fortunately we need not undertake to answer these questions for in the instant matter Mr. Hodges lost no income and the evidence did not support a claim for impairment of his earning capacity. At the risk of being branded “theoreticians,” in our view loss of financial support is not an element of damages in Mrs. Hodges’ consortium claim.

We additionally observe no claim was made or proof offered that Mrs. Hodges has been deprived of her “legally sanctioned and morally proper privilege of copulation or procreation.” Yonner v. Adams, 3 Storey 229, 53 Del. 229, 167 A.2d 717, 728. There was no showing Mr. Hodges’ love and affection for his wife has waned or diminished. As suggested in the Bernhardt v. Perry petition, supra, there was no averment or proof Mrs. Hodges administered any nursing care or services unto her husband other than those usually performed by and expected of a wife, or that she personally suffered any personal physical pain or disability because of her husband’s injuries. We cannot, of course, deny the news of the accident and of Mr. Hodges being injured did not cause Mrs. Hodges some temporary distress and anguish. Mrs. Hodges was not out-of-pocket any sums because of her husband’s inability to do yard or housework or for his medical and hospital services, which are items often employed to gauge the propriety of a verdict given a husband in his derivative action. Take v. Orth, Mo.App., 395 S.W.2d 270, 276(10, 11); Hopkins v. St. Louis Public Service Company, Mo.App., 382 S.W.2d 442, 450-451(16).

No doubt exists that males have depreciated and females appreciated since the time the edict was given Eve that “he [Adam] shall rule over thee,” and subsequent to King Lemuel’s observation a good wife “riseth also while it is yet night and giveth meat to her household * * * She layeth her hand to the spindle and her hands hold the distaff.” Paul too underestimated the power of women when he described them as “keepers at home [and] obedient to their own husbands.” The surrender flag of male supremacy was long ago espied by our Supreme Court in Clow v. Chapman, 125 Mo. 101, 28 S.W. 328, 329-330, 26 L.R.A. 412, when it ceded that under “the statute law of this state” a wife “is made to stand out in bold relief * * * [and] placed upon an equality with her husband.” Bowing to this and other authority, we acknowledge but, through understandable male pride, do not necessarily rule a wife’s right to her husband’s services under a claim for loss of consortium may also include her right to assist-anee with household chores. Mrs. Hodges testified that before the accident her husband “lifted baskets of clothes for me, which I didn’t do * * * he would run the sweeper quite a lot, since I worked I had a lot of things to do, and he helped me with most of the housework, and he helped me with the children.” Other elements of her husband’s consortium, if any, which she might have lost were not delineated. It is fortunate for the Hodges the husband sustained no permanent physical disability, so we may assume Mrs. Hodges’ loss also will be but for an indefinite period.

There should be some reasonable relationship between the size of a verdict awarded in a consortium action and that given the injured spouse so that each will be congruent with the particular facts and circumstances involved. In the usual case, as here, the damages to the uninjured spouse are necessarily considerably less than those suffered by the one injured and who actually incurred the expense of involved special damages. While it does not necessarily follow a remittitur will automatically be required in a derivative action when a reduction has been made in the principal suit, in consideration of the peculiar aspects of this case and the above noted considerations, we are of the opinion the sum of $1,500 is the maximum amount of damages permissible and that the verdict in favor of Mrs. Hodges is excessive by the sum of $1,000.

Defendant does not contend the verdicts were excessive because of the jury’s bias, prejudice or misconduct. Therefore, the errors therein may be corrected by remittitur. Knight v. Swift and Company, Mo., 338 S.W.2d 795, 801(11). Defendant also fails to claim jury error in its determination of liability. Therefore, if within fifteen days after the filing of this opinion, plaintiff Wallis E. Hodges will enter in this court a remittitur of $3,500, that part of the judgment on Count One of the petition will stand affirmed in the sum of $6,500 as of the date of the original judgment, otherwise that part of the judgment pertaining to Count One of plaintiffs’ petition is reversed and the cause remanded for a new trial on the issue of damages only. If within fifteen days after the filing of this opinion, plaintiff Beverly R. Hodges will enter in this court a remittitur of $1,000, that part of the judgment on Count Two of plaintiffs’ petition will stand affirmed in the sum of $1,500 as of the date of the original judgment, otherwise that part of the judgment pertaining to Count Two of plaintiffs’ petition is reversed and the cause remanded for a new trial on the issue of damages only.

STONE, P. T., and HOGAN, J., concur.

      . Nichols v. Blake, Mo., 395 S.W.2d 136, 141(6); Wartenbe v. Car-Anth Manufacturing and Supply Co., Mo.App., 362 S.W.2d 54, 60(4); Faught v. Washam, Mo., 329 S.W.2d 588, 601.

      . Waymire v. Carter, Mo.App., 366 S.W.2d 74, 79(3); Moss v. Mindlin’s, Inc., Mo., 301 S.W.2d 761, 769 ; 25 C.J.S. Damages § 40, p. 727, n. 55.5; 22 Am.Jur.2d, Damages § 93, pp. 136-137.

      . Haley v. Byers Transportation Co., Mo., 414 S.W.2d 777, 782(5); Nichols v. Blake, supra, 395 S.W.2d at 140(3); Honeycutt v. Wabash Railroad Company, Mo.App., 313 S.W.2d 214, 217-218(4) (subsequent appeal Mo., 337 S.W.2d 50); Seymour v. House, Mo., 305 S.W.2d 1, 3(2).

      . Minor v. Dillard, Mo., 306 S.W.2d 541, 548(12); Sparling v. Hoard, Mo.App., 380 S.W.2d 940, 941(1); Blanford v. St. Louis Public Service Co., Mo., 266 S.W.2d 718, 721(3); 88 C.J.S. Trial §§ 196c, d, and e, pp. 385-389.

      . Wolfe v. Harms, Mo., 413 S.W.2d 204, 217; Stephens v. Guffey, Mo., 409 S.W.2d 62, 70(5, 6) ; Lindsey v. P. J. Hamill Transfer Co., Mo.App., 404 S.W.2d 397, 401 (7); McDonald v. Missouri-Kansas-Texas Railroad Co., Mo., 401 S.W.2d 465, 472(13, 14); Moss v. Courtaway, Mo., 400 S.W.2d 160, 163(4); Mahowald v. Garrison, Mo.App., 397 S.W.2d 713, 716; Dean v. Young, Mo., 396 S.W.2d 549, 561 (20); Matta v. Welcher, Mo.App., 387 S.W.2d 265, 275(16); Painter v. Knaus Truck Lines, Inc., Mo., 375 S.W.2d 19, 26-27 (8, 9); Salzwedel v. Vassil, Mo.App., 351 S.W.2d 829, 835-836(4-6); Hunter v. St. Louis Southwestern Ry. Co., Mo., 315 S.W.2d 689, 697(10).

      . Boehmer v. Boggiano, Mo., 412 S.W.2d 103, 111(10); Chapman v. King, Mo.App., 396 S.W.2d 29, 34(1); Turner v. Yellow Cab Company of Springfield, supra, 361 S.W.2d at 157(10).


source: Caselaw Access Project

license: Public Domain

text:
    Robert BAUER, Employee-Claimant-Appellant, v. INDEPENDENT STAVE COMPANY, Inc., Employer-Respondent, Bituminous Casualty Corporation, Insurer-Respondent.
    No. 8674.
    Springfield Court of Appeals, Missouri.
    July 24, 1967.

      J. W. Grossenheider, Lebanon, for employee-claimant appellant.
    Donnelly & Donnelly, David Donnelly, James E. Baldwin, Lebanon, for employer-insurer respondents.
   TITUS, Judge.

Benefits under V.A.M.S. Chapter 287 were denied Robert Bauer by the Division of Workmen’s Compensation, the Industrial Commission of Missouri, and the Circuit Court of Laclede County upon a finding he “did not sustain an accident arising out of and in the course of his employment * * * within the meaning of the Workmen’s Compensation Law, as alleged.” Upon this appeal employee complains the finding “was contrary to all the evidence adduced and there was no credible evidence presented from which such a finding could have been made.” We proceed on the assumption this constitutes an assertion there was not sufficient competent evidence in the record to warrant a finding no accident had been sustained, or, the finding was clearly contrary to the overwhelming weight of the evidence. Art. V, § 22, Missouri Constitution of 1945, V.A.M.S.; V.A.M.S. § 287.490, subd. 1(3) and (4); Hinderliter v. Wilson Brothers, Mo.App., 412 S.W.2d 558, 560.

Claimant had been a stave grader in the employ of Independent Stave Company of Lebanon, Missouri, from November 1961 to December 4, 1964. His duties included the placing of rejected staves onto a skid which, when loaded, was put upon a cart or floor jack that had a four foot handle and four steel wheels. The staves, skid and cart had a combined weight of 200 to 250 pounds. Unassisted, Bauer would pull the loaded cart down an aisle and deposit the skid in an area measuring about fifteen feet square. “When you get down to the end where they stack [the skids] they have to be turned and shoved back in out of the way.” Referring generally to the concrete floor in the stave finishing department, claimant said “it was rough in most of the places anyway.” The floor in the area where the staves were stacked “had quite a little bit rougher holes.” Employer’s witnesses portrayed the “holes” as saucer-like indentations that did not become “very deep until they patch them.” Except for medical reports received subject to employer’s denial of the factual issues, Bauer’s testimony constituted all his evidence.

The formal Claim for Compensation filed in the cause and signed by employee, averred that at 1:00 P.M., December 4, 1964, “I was pushing a cart containing stave rejects to an area of the finishing department when I experienced a severe pain in my back.” At the trial Bauer testified “As I was pushing this cart back into this place [where the skids are stacked] it became lodged in the floor * * * became lodged in these holes, had to pull it out in order to get it freed * * * it was hard work to get that out of there.” Employee said he made “two or three” tries before freeing the cart and he felt the pain in the small of his back as he “was pullin’, pullin’ on the cart * * * Well, I just pulled on it and then you can get it out.” Thereafter Bauer returned to his machine location. “I just spoke to the man I was working with. * * * I told him my back was hurting me and I couldn’t load as fast.” Claimant did not undertake to tell his fellow employee any cause for his back discomfort.

Bauer completed his work at 5 P.M., Friday, December 4, 1964, returned home and went to bed where he remained until Wednesday, December 9, 1964. On Saturday, December 5th, claimant sent his wife “to town to get some pills for me because I thought maybe my kidneys was bothering me.” He was “kinda hoping” his back trouble resulted from having “gotten in a draft or gotten some cold or possibly had a recurrence of [an old] kidney problem.” On December 9th Bauer called upon Raymond Scott, employer’s office manager. He then “didn’t know what was wrong with my back. * * * I just told [Scott] I was sick, my back was hurting and I had to have something done.” Scott recalled: “Well, [Bauer] came into my office on the 9th asking me to recommend a doctor to him and I asked him what the trouble was and he said he had a — had back trouble, his back was hurting him and I asked him if he was injured in the plant and he told me ‘No’ and I told him who the company doctor was and I recommended — didn’t actually recommend I just named two or three other doctors in town.” John Franklin, foreman of the stave finishing department, also talked to Bauer on December 9th about “being absent from work * * * and he said ‘I’ve had my back hurt,’ and I said ‘Well, did you get it hurt out here?’ and he said ‘No.’ ” Claimant did not deny or rebut the testimony of either Scott or Franklin.

In a letter to claimant’s lawyer, Dr. H. W. Carrington of Lebanon, stated: “Mr. Bauer was first seen on December 9, 1964, complaining of pain in his back which had started the previous week. He reported at that time that he felt that this had been brought on due to exposure to a- draft while at work, and that he experienced discomfort in his back while on his job which necessitated pushing.” Employee was operated by a Springfield, Missouri, surgeon on December 22, 1964, for a laminec-tomy at the L4 — L5 interspace. Discharged from the hospital January 3, 1965, Bauer was released to return to work on May 5, 1965, with a permanent partial disability rating of ten per cent to the body as a whole. The surgeon’s medical report to Bauer’s attorney related that when claimant was first observed on December 16, 1964, he “gave a history that twelve days previously he was working in the. stave mill * * * and stated that he had to do considerable tugging and pulling on a small cart because of some rough irregular flooring. He noticed onset of back and left leg pain at this time.”

The burden of bringing himself within the provisions of the law rests upon the workmen’s compensation claimant. Leone v. American Can Company, Mo.App., 413 S.W.2d 558, 561(1); Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292, 296(5). To sustain this burden, the employee must not only show he suffered an injury, but additionally must show the injury resulted from an accident arising out of and in the course of his employment within the meaning of the Act. V.A.M.S. §§ 287.020, subds. 2 and 3, and 287.120, subd. 1; Ray v. Great Western Stage & Equip. Co., Mo.App., 413 S.W.2d 576, 579(1). An “accident” under the law is “an unexpected or unforeseen event happening suddenly and violently.” It is not the “injury” itself, but the cause of the injury. The injury is the result produced by the accident and the cause of the injury must be accidental to be compensable. Ginter v. Freund Baking Company, Mo.App., 388 S.W.2d 505, 507; Errante v. Fisher Body Div., General Motors Corp., Mo.App., 374 S.W.2d 521, 523 (2); Tines v. Brown Shoe Company, Mo.App., 290 S.W.2d 200, 201-202 (1-3); Keller v. Bechtel, McCone, Parsons Corporation, Mo.App., 174 S.W.2d 925, 927 (1).

This court, upon a judicial review of a workmen’s compensation claim, must determine if the award of the Industrial Commission is “supported by competent and substantial evidence upon the whole record.” Art. V, § 22, Missouri Constitution of 1945. In so doing all of the evidence and legitimate inferences arising therefrom must be viewed in the light most favorable to the award. We may not substitute our judgment on the evidence for that of the Commission for it is the Commission that passes upon the credibility of witnesses and the weight to be given conflicting testimony, and if conflicting inferences are permissible, the choice rests with the Commission as to which will be accepted. The Industrial Commission may decide a claim wholly upon a finding of lack of credibility of unimpeached and un-contradicted testimony.

Claimant urges that since his testimony and the recitation in the medical report of the Springfield surgeon constitute the only evidence of an on-the-job injury, the issue to be resolved is one of law and excludes consideration of the weight of the evidence. With this we do not agree. The evidence is in conflict and, as noted above, mere proof of injury is not sufficient to ef-feet recovery if the record is void of evidence showing an accident occurred which produced the injury. We additionally observe the recital of the surgeon that claimant did “considerable tugging and pulling on a small cart” does not per se describe elements necessary to prove an accident. Ordinarily a physician may not testify to statements of the patient with respect to circumstances surrounding the injury or the manner in which the injury was received. Schears v. Missouri Pacific Railroad Company, Mo. (banc.) 355 S.W.2d 314, 317(1); Garrison v. Campbell “66” Express, Mo.App., 297 S.W.2d 22, 28(3). As the medical report was received subject to employer’s denial of the factual issues, it was permissible and proper for the Commission to have disregarded whatever claimant may have told the doctor as to how he was injured. The Commission did not have to accept the testimony of the employee as true (Miranda v. American Refrigerator Transit Co., Mo.App., 392 S.W.2d 413, 419 [3, 4]), and this is so whether the words came directly from claimant’s lips or as hearsay out of the mouth of another.

The “No” answers Bauer gave to the specific inquiries of his foreman and employer’s office manager if he had been injured on the job, constituted admissions against interest. This is also true of claimant’s representation to Dr. Carrington his back trouble resulted from draft exposure. Whether these admissions against interest were to be rejected, taken as true, or accepted to be weighed along with other evidence in the case, was for the Commission to decide.

Bauer declared in his written claim filed with the Division of Workmen’s Compensation his back pain was experienced ás “I was pushing a cart,” and told Dr. Car-rington he “experienced discomfort * * * on his job which necessitated pushing.” In contradiction of this, at trial employee testified the pain was felt as he was pulling on the cart. Attention to these divergent assertions would be hypertechnical if isolated, but considered with other inconsistent components in the case, the cumulative effect thereof could have prompted the Commission to resolve the issue of credibility against Bauer. Employee further testified the sharp back pain perceived while pulling the cart on Friday produced such discomfort that he was obliged to go to bed where he remained until “come Wednesday morning.” Although Bauer may not have realized he had injured a disc in his spinal column, if his trial testimony was true he should be held to know it was pulling on the cart that produced the pain in his back. Cf., Brown v. Douglas Candy Company, Mo.App., 277 S.W.2d 657, 662-663. “One who has been an actor in a transaction clearly knows what he has done” and is chargeable with knowledge thereof. 1 Merrill on Notice, § 37, p. 26. Employee’s statements to his foreman and the office manager he had not been injured on the job, added to other discordant utterances, would justify the Commission in deciding the claim adverse to Bauer for lack of credibility. While we do not know the Commission rejected the claim by simply disbelieving Bauer’s testimony, we could not say the Commission acted arbitrarily or without adequate cause if this was its only reason for entering an award denying compensation.

There was no contention or evidence in this case that Bauer slipped or fell, or that he struck or was struck by any object. He did not testify his body was in any uncommon or strained position while pulling on the cart, or that he exerted any extra, sudden or abnormal muscular force, or that he was subjected to any unusual or abnormal strain, stress or twisting. Bauer did testify “it was hard work to get that from out of there,” but the mere performance of a hard or laborious task accomplished in the manner intended and unattended by any untoward occurrence, does not constitute an accident under the law. As far as the record reveals, what Bauer did was done intentionally in accordance with preconceived design and nothing unusual occurred except that he felt a pain. This falls far short of sustaining the burden of proving he had experienced an accident arising out of and in the course of his employment. But even assuming, which we do not, the meager evidence adduced would warrant either a finding there was or was not an accident, as the Commission has found against the employee such a finding, under the circumstances of this case, is necessarily conclusive on appeal. Hall v. Mid-Continent Manufacturing Co., supra, 366 S.W.2d at 62, and cases there cited.

The judgment of the Circuit Court approving the finding of the Commission denying compensation is affirmed.

STONE, P. J., and HOGAN, concurs.

      . We do not recount the conflicting testimony concerning the existence or nonexistence of a particular floor crack as claimant relates the involved incident entirely to “holes,” rather than to the crack.

      . Lawson v. Lawson, Mo.App., 415 S.W.2d 313, 316 (1, 2 and 4); Deffendoll v. Stupp Brothers Bridge & Iron Co., Mo.App., 415 S.W.2d 36, 42(4); Griffin v. Sinks Ford Sales, Mo.App., 413 S.W.2d 856, 858(3); Luketich v. Krey Packing Company, Mo.App., 413 S.W.2d 29, 34(5); McGrath v. Railway Express Agency, Inc., Mo.App., 411 S.W.2d 260, 262(3); Wilhite v. Hurd, Mo., 411 S.W.2d 72, 77 (2); Ousley v. Hawthorn Company, Div. of Kellwood Co., Mo.App., 397 S.W.2d 719, 721(1-4).

      . Patterson v. Fitzgibbon Discount Corporation, Mo.App., 339 S.W.24 301, 307; Munday v. Austin, (banc.), 359 Mo. 959, 218 S.W.2d 624, 628(5); Partney v. Agers, 238 Mo.App. 764, 187 S.W.2d 743, 747 (2); Waite v. Boutross, 225 Mo.App. 724, 39 S.W.2d 454(1); Ruckert v. Moore, 317 Mo. 228, 295 S.W. 794, 801 (11) ; 31A C.J.S. Evidence § 382(a) and (b), pp. 930-943.

      . Hinderliter v. Wilson Brothers, supra, Mo.App., 412 S.W.2d at 562(2); Mason v. F. W. Strecker Transfer Co., Mo.App., 409 S.W.2d 267, 270(3, 4) ; Harryman v. L-N Buick-Pontiac, Inc., Mo.App., 402 S.W.2d 828, 831-832(4-7); Brandt v. E. O. Dorsch Electric Company, Mo.App., 400 S.W.2d 452, 456-457 (6, 7); Baker v. Krey Packing Company, Mo.App., 398 S.W.2d 185, 189-190 (3, 4); Closser v. Fleming Company, Mo.App., 387 S.W.2d 194, 198(3-6); Errante v. Fisher, Body Div., General Motors Corp., supra, 374 S.W.2d at 523(2, 3); Hall v. Mid-Continent Manufacturing Company, Mo.App., 366 S.W.2d 57, 62-63 (5); Tines v. Brown Shoe Company, supra, 290 S.W.2d at 201-203(1-4) ; Higbee v. A. P. Green Fire Brick Co., Mo.App., 191 S.W.2d 257, 258-259(3); Keller v. Bechtel, McCone, Parsons Corporation, supra, 174 S.W.2d at 927-928(3-4).


author: THEODORE McMILLIAN, Special Judge.

text:
    STATE of Missouri ex rel. and to the Use of the COLLECTOR OF REVENUE OF the CITY OF ST. LOUIS and the City of St. Louis, Plaintiffs-Appellants, v. Bertram C. ROBERTSON, Defendant-Respondent.
    No. 32726.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.
    Raymond A. Bruntrager, St. Louis, for plaintiff s-appellants.
    Sweet, Schwarz & McGhee, Grove G. Sweet, St. Louis, for defendant-respondent.
   THEODORE McMILLIAN, Special Judge.

This appeal was transferred to this Court by the Missouri Supreme Court for jurisdictional reasons.

On April 15, 1965, the Collector of Revenue of the City of St. Louis at the relation of the State of Missouri, pursuant to Section 141.820, RSMo 1959, V.A.M.S,, filed suit against respondent for the recovery of alleged delinquent city earnings taxes. Respondent filed a motion to dismiss appellants’ petition on the grounds that it appeared on the face thereof that appellants’ claim for relief was barred by the statute of limitations. The Court sustained respondent’s motion and dismissed appellants’ petition with prejudice. Appellants now bring this appeal.

Appellants’ petition alleges that respondent owes the City of St. Louis delinquent city earnings taxes for the years 1955 to 1958, both inclusive. The petition further alleges that for none of the years in dispute did respondent file a return. Appellants’ prayer in the petition was for an aggregate sum of the taxes owed ($129.80), plus penalty and interest.

It is conceded by respondent that the allegations of appellants’ petition are accepted as true for the purpose of this appeal.

The City of St. Louis, pursuant to enabling Statutes 92.110, RSMo 1959, V. A.M.S., and City Ordinance No. 47063, Section 5, approved April 28, 1954, requires a person liable for an earnings tax to file an earnings tax return on the 30th day of March of that year following the year the wages were earned, and to pay the tax due thereon. Neither the enabling statutes nor the ordinance makes any mention of any specific limitation of time within which to bring a suit for the collection of the tax. It is conceded by both parties that the general five-year statute, Section 516.120, RSMo 1959, V.A.M.S., is applicable as “an action upon a liability created by statute.” State v. Dalton, 353 Mo. 307, 182 S.W.2d 311 (statute held to express policy of the State even as against tax claim of the State) ; and in City of St. Louis, et al. v. Newman (1869), 45 Mo. 138, 139, the Court stated :

“ * * * If the act applies to demands in favor of the State, * * * then it must apply to demands of a city corporation created by the State, in the absence of any special provision to the contrary. * *

Succinctly stated, the question we must decide is when the statute of limitations begins to run. Appellants claim that the statute does not run until the tax due is delinquent. This much is conceded by respondent. Nevertheless, so claim appellants, in cases where no time for delinquency is fixed, either by statute or ordinance, and there is something else to be done — in this case, file a return — the tax is not delinquent until the return is filed by the taxpayer. State Tax Commission v. Spanish Fork, 99 Utah 177, 100 P.2d 575, 131 A.L.R. 816.

Unquestionably, we must consider a long line of decisions “that the statute of limitations will begin to run only when the cause of action, or more precisely, the claim for relief, shall have accrued and * * * that a claim for relief has accrued when a right exists to institute a suit for its enjoyment.” Boyd v. Buchanan, 176 Mo.App. 56, 162 S.W. 1075; also Beard v. Citizen’s Bank, Mo.App., 37 S.W.2d 678, 679. In tax cases, the claim for relief is held to have accrued when the taxes have been assessed and have become delinquent. State ex rel. Hawkin v. Edwards, Mo., 286 S.W. 25; and St. Louis County ex rel., Scott v. Marvin Planing Mill Co., 228 Mo.App. 1048, 58 S.W.2d 769.

Appellants’ whole case would seem to stand or fall upon the proposition that the tax in the instant case is not delinquent until the taxpayer files a return, and since none has been filed, the appellants’ suit is therefore timely filed. State Tax Commission v. Spanish Fork, supra. Of course, if appellants are entirely correct in their contention, we are offered a very simple solution ; that is, if the tax does not become delinquent until a return is filed, and since no return admittedly has been filed, ergo, appellants have no right to institute this claim for relief. Yet, we feel that this is a question of such general interest, touching upon the pulse of every responsible fiscal planning agency, that to dispose of it in such a summary manner, without coming to grips with the real problem, would only add to the unrest and uncertainty in this area.

In the Spanish Fork case, supra, which seems to support the appellants’ position, plaintiff, State Tax Commission, brought suit against defendant, Spanish Fork, a municipal corporation, for defendant’s failure as a collector of sales taxes, to make a return for sales taxes due. The lower court held that the statute of limitations against a claim for sales taxes began to run from the date that defendant was required by law to make a return. The Supreme Court of Utah, reversing the trial court, held that the date the return was filed was controlling, said, 1. c. 577:

“ * * * Ordinarily, a cause of action for a debt begins to run when the debt is due and payable because at that time an action can be maintained to enforce it. But when some controlling statute or a contract existing between the parties provides that an additional thing be done before action may be brought, such a statutory provision that a return must be filed, or, as in some insurance contracts, a provision that suit may not be brought before a certain time after the claimed loss, the statute of limitations does not start to run until the time when suit may be maintained even though interest on the amount of the liability may begin to run from the time it is due and payable. * * * ”

The court continued in support of its conclusion stating, 1. c. 577-578:

* * * This ruling also comports with the equities of the case. The omission of an imposed duty designed to advise an administrative body of an event which sets its process in motion, shall not accrue to the advantage of the one who failed in the duty. This turns a delict into a triumph. Holding otherwise makes it the duty of the Tax Commission to ferret out and sue for taxes, businesses which may never have filed a return and of the existence of which the Commission is unaware. * * * ”

We are not unimpressed by the logic of two aspects of the ruling advanced by the Utah Supreme Court; namely (1) that one who has a duty imposed upon him by law should not benefit by his own dereliction of duty and; (2) the seemingly apparent impossibility of a tax collector to ferret out violators and to sue them for taxes. On the other hand, even though we are not unimpressed, yet we are unconvinced that we should follow the precedent fixed by the Utah Court. In our opinion, a statute of limitations is a legislative declaration of public policy not only to encourage our citizens to seasonably file and to vigilantly prosecute their claims for relief, but also to require them to do so or, otherwise, find their claims proscribed by law. On the same principle, from time immemorial, our Courts of equity have accomplished the same results by outlawing stale claims by the doctrine of laches. Granted, either policy may bring about some apparent injustices ; however, we feel that in the main, the public interest is best served by the certainty gained by the prohibition of untimely and stale claims, and the incidental evils connected therewith.

Turning now to the Ordinance of the City of St. Louis, supra, we find, inter alia, it amply provides: (1) Sec. 2, “A tax * * * imposed * * * on salaries * * * ” and (is) “ * * * collected and paid on the basis of a calendar year, * * * ”; (2) Sec. 5, “ * * * each individual shall, on or before March 30 of each year, * * * make and file with the Collector a return, . * * *. The taxpayer making the said return shall, at the time of filing * * * pay * * * tax due * * ; (3) Sec. 9, “ * * * duty of the Collector to collect and * * * enforcement of * * * ordinance * * ; (4) Sec. 10, “all taxes * * * due shall bear interest * * * 6 per cent * * * and penalty of one per cent”; and (5) Sec. 11, all taxes * * * shall be recoverable by the City as other debts * *

In our judgment, it is crystal clear that Section 5 not only imposes the tax, but also establishes the basis (calendar year) for payment. On the other hand, this is not to say that appellants could have brought suit on that date. This for the reason that Section 2 must be construed in conjunction with Section 5 which gives to the taxpayer a grace period from January 1 to March 30. Hence, from January 1 to March 30, the tax is unquestionably due but not delinquent. See St. Louis County ex rel. Scott v. Marvin Planing Mill Co., supra, which involved the defense of limitations on a special tax bill. The enabling legislation granted the County Court permission to allow a thirty-day grace period after issuance of the tax bill before it would start bearing interest. Suit was filed upon the tax bill more than five years after issuance, but less than five years after expiration of the thirty-day grace period. The defense of limitations was interposed. The Court, after discussing some of the anomalies which could result were it to hold otherwise, held that the right to bring a suit for the enforcement of the lien of the special tax bill did not accrue until thirty days after the date of its issuance. State ex rel. Hudson v. Carr, 178 Mo. 229, 77 S.W. 543; Drainage District No. 1 of Bates County v. Bates County, 269 Mo. 78, 189 S.W. 1176; and McFaw Land Co. v. Kansas City Title and Trust Co., 357 Mo. 797, 211 S.W.2d 44.

Accordingly, we hold that the respondent’s tax became delinquent for each year, 1955 to 1958, respectively, on the day after March 30, of the ensuing year, and after that date, interest and penalties accrue. Therefore, inasmuch as Section 9 and 1Í authorize and require the appellants to institute suit for delinquent taxes, the whole matter is committed to his hands at the time delinquency occurs. We hold that appellant could sue the day following the delinquency, or any other day until the bar of limitations has attached. In the instant case, he could have sued on March 31, of any year from 1956 to 1959, inclusively, for the taxes due for the year from 1955 to 1958, inclusively. So, since he could sue, the statute of limitations commenced; therefore, we hold that this action which was filed April 15, 1965, is barred.

The judgment of the trial court is hereby affirmed.

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


author: HOGAN, Judge.

text:
    In the Matter of the ADOPTION of K. B. I. D., Appellant, v. V. M. G., Petitioner-Respondent.
    No. 8621.
    Springfield Court of Appeals. Missouri.
    July 31, 1967.

      Gordon R. Boyer, Lamar, for appellant.
    Frieze & Crandall, Carthage, for petitioner-respondent.
   HOGAN, Judge.

This is an appeal from a decree of adoption. The subject is a little girl, not quite seven at this writing. The petitioner, who is the natural mother’s aunt by affinity, has had care and custody of the child since she was six months old. The appellant is the mother of the child. A number of questions are raised here, principally whether the court had jurisdiction of the action, and whether the consent of the mother could be dispensed with on the ground that she had abandoned her child.

This is the second time the appellant’s family affairs have been before this court. See In the Interest of J., Mo.App., 357 S.W.2d 197. Though neither the parties nor the issues involved were the same, the record filed in the first case is in many respects more informative than that before us now, and the question arises whether the record in the earlier case may be considered in determining the merits of this appeal.

As a general rule, courts will not judicially notice the records and facts in one action in deciding another and different one, because a party is entitled to have the merits of his case reviewed upon the evidence lawfully introduced at the trial of his claim or defense in the trial court, and a reviewing court should not decide a case upon evidence which a party has had no opportunity to refute, impeach or explain. Nevertheless, exceptions are admitted, and the extent to which this general rule is strictly applied or relaxed depends largely upon considerations of expediency and justice in a particular case, as well as what it is the court undertakes to notice. The case before us is an adoption proceeding. It is not only familiar law that the State itself has an interest in such cases, State ex rel. Earnest v. Meriwether, Mo., 270 S.W.2d 20, 22 [1]; In re C., C., and C., Mo.App., 380 S.W.2d 510, 514 [1], but it is essential on this appeal to determine whether the mother’s conduct, judged by what she has done over a period of several years, rather than by what she says, constitutes such abandonment or neglect as dispenses with the necessity of her consent. For these reasons, we think we not only can, but should, examine the former record for such information as bears on the merits of this case, and we have done so.

As material here, the facts are that K., the adoptee, was born August 3, 1960, to the appellant and her second husband, one H. The appellant also has one child of her first marriage, which she contracted at age fourteen. The history of appellant’s first marriage is recited in the case report styled In the Interest of J., supra, 357 S.W.2d 197, and we need not repeat those facts here. The appellant was divorced in October 1959 from her first husband and married H., her second, in March 1960, at age seventeen. K. was born in August, and on October 19 appellant was divorced from H. The appellant was given custody of K. at the time of her divorce.

In March 1961, at the instigation of the appellant’s mother, a petition was filed in the juvenile division of the circuit court of Barton County alleging that the appellant’s two children were neglected and in need of care and treatment. The substance of the petition was that the appellant had left her children with her mother and had “absconded on March 1, 1961, with a truck driver, not her husband, headed for the State of Texas.” The juvenile court made an interim order placing both children in custody of the appellant’s mother, but it appears that K. was never actually in her grandmother’s custody after January 3, 1961, for at a subsequent hearing involving the custody of both children, the grandmother testified that “K. was with me a little while, but B. [the appellant] was down there [near petitioner’s home] staying and I thought maybe, you know, the baby was with them [petitioner and her husband] and she has got a good home.” The appellant’s mother was asked on this occasion (July 24, 1961) “if it [was] the plan to leave this child K. with [petitioner and her husband],” and she answered, “Her Daddy has signed her over to them.” On this same day, the juvenile division of the circuit court of Barton County (where appellant then lived) entered an order finding that K. was within its jurisdiction, and ordering that the adoptee be placed in custody of the petitioner and her husband, subject to all rights of visitation by the child’s father, the appellant, and the maternal grandmother. During the period between the original hearing or series of hearings on the custody of the children in Barton County and the commencement of this action, the petitioner’s husband died.

The appellant’s activities during this period following her first divorce and during and after her second brief marriage can only be gleaned piecemeal from the records. Apparently, prior to and following the truck driver incident, she went from place to place and from job to job. There is mention in the earlier record of employment at a “truck stop” near Lamar, work at a cafe on Main Street at Webb City, being at Golden City with a “girl friend and her parents,” and a job at a T.V. service center in Joplin. It is unnecessary to pursue the matter, however; whatever the reason for her rather disorganized life, it is evident that the appellant left both of her children wholly in the care of others.

How the adoptee originally came into the petitioner’s custody is not entirely clear. The petitioner testified that K. had been brought to her home on January 3, 1960, but this is quite obviously an error, because K. was not born until August 3 of that year. At the adoption hearing, the appellant testified that custody of both children had been awarded to their maternal grandmother, but that after appellant’s grandmother died “she [appellant’s mother] couldn’t take care of both the children so she gave K. to my aunt.” At one of the custody hearings in Barton County, the grandmother testified, as we have recited, that she saw no reason to object to or interfere with the petitioner’s custody of the adoptee, since the appellant was living near the petitioner’s home and the adoptee had a good home. One of the various agency reports (which are scattered throughout both records) indicates that the appellant and her second husband asked the petitioner to take K. and rear her. The appellant vigorously denied that she had ever consented to or even contemplated K.’s adoption; her statement at the adoption hearing was that “she [petitioner] had asked me several times, in fact, almost everytime I seen her, if I would let her adopt K., and I always told her no, that sometime I wanted K. back.” (Our emphasis.) There is an exhibit in the record showing that in July 1961 K.’s father executed a written consent to the adoption, which he subsequently withdrew. The father explained his execution of this consent by saying he had signed it because the appellant said “it was the best.” At the hearing on the adoption, the father stated that he opposed the adoption, but he has not appealed from the decree.

Though the juvenile division of the circuit court of Barton County denied petitioner the adoptee’s custody “for purposes of adoption” upon the hearing of the neglect proceeding — a fact which the. appellant stresses — it is undeniably true that the petitioner has had the adoptee for all the time of which the child has any memory, without objection by the appellant, and that the petitioner (and her husband prior to his death) have supported and cared for the child without any contribution from either of the parents for a four-year period preceding the trial of this case. The petitioner admitted that appellant had refused to sign a written consent to the adoption, but said this was not because the appellant was unwilling, but only because, as the appellant had put it, “she didn’t want the name if it goes into court.” In any event, and without going into all the factual minutiae, it seems clear to us that the prospect of adoption had been discussed and considered by the parties well before this action was commenced, and had apparently been contemplated favorably by the appellant.

The trial of this adoption proceeding was conducted much as if it was merely a hearing upon the custody of the child. For the purposes of this background statement, the evidence presented, in addition to that we have summarized, was as follows: K., the adoptee, was shown to be six years old. She was described by the petitioner as being “nervous” but otherwise in good health. At trial time, she was in kindergarten at a local public school, “doing just fine.” Those who had observed the child from day to day stated that she seemed to be normal, healthy and happy, and appeared to have very strong ties of affection to the petitioner.

V., the petitioner, was fifty-five years old at trial time. She and her husband had been married nearly thirty years prior to his death on May 24, 1964, and they had reared two sons, both of whom were married. The petitioner’s health has been poor, and her means are somewhat limited, but she owns a good home and is able to meet her financial obligations promptly. The petitioner testified that she has made financial provision for the adoptee’s education and support, as she put it, “if anything happens to me.” V. is a member of the Reorganized Church of Jesus Christ of Latter Day Saints (Mormon) and enjoys an excellent reputation in the community in which she lives.

H., the adoptee’s natural father, testified briefly. He testified that at trial time he was working “at Boeing” in Wichita, Kansas, and was attending college in the evening. When he was asked if he obj ected to the adoption, H. answered, “I won’t consent.” The evidence brought out that H. had not contributed to K.’s support at any time during the two years preceding the adoption hearing. H. testified that he could have done so, but did not because he and petitioner’s husband had agreed petitioner’s husband would support K. and claim her as an exemption for federal income tax purposes. When he was asked if he had made efforts to visit his child, H. answered, “No, I have been there, but I have never talked.” As we have said, H. at one time consented to the adoption, but later revoked his consent.

Much of the appellant’s trial testimony consisted of assurances that she now had a stable domestic situation and had acquired a sense of responsibility which she had lacked in her extreme youth, when she had “headed for Texas” with the truck driver and her children had been declared neglected. The appellant testified that she had married one R. at Webb City, Missouri, in December 1961. She and her present husband live at Biloxi, Mississippi, where he is stationed as a “career man” in the Air Force. Since February 1965, the appellant has had custody of her elder child. Appellant at that time “asked” the grandmother for J., the elder daughter, and the grandmother, having custody of the child by order of the juvenile court of Barton County, had returned the child to the appellant. The appellant testified, as we have recounted, that she had always felt that “sometime” she “wanted K. back,” and there was considerable evidence that the appellant now maintains a good home and leads a relatively orderly and conventional life. Other and more specific facts will be noted, as mater rial, in the cotjrse of the opinion.

The first point for discussion is appellant’s argument that the juvenile court in Jasper County iiever acquired any jurisdiction of this proceeding because: 1) on July 26, 1961, the juvenile division of the circuit court found the adoptee to be a neglected child, and entered an order at that time retaining jurisdiction until K. reached her majority, and 2) the petitioner failed to obtain an order pf the juvenile court in. Jasper County transferring custody of the child to her for adoption, pursuant to Section 453.110, par. 1.

The appellant has thoroughly-mixed several distinct ideas in making this point, i. e., jurisdiction over the person, jurisdiction of the subject matter, pendency of another action, and improper venue, but the essence of her argument is that since the juvenile division of the circuit court of Barton County once found that K. was a neglected child within the meaning of Section 211.031, and by its order retained jurisdiction as provided by Section 211.041, no other court could thereafter make any order affecting her status or custody. As we read the precedents, she is mistaken. The “subject matter” of which the juvenile court in Barton County retained jurisdiction was the adoptee’s status as a neglected child, while the provisions of Section 453.010, par. I, conferred the authority to hear the adoption proceeding upon the juvenile division of the circuit court of Jasper County, where the petitioner lived and where K. actually was. State ex rel. Grimstead v. Mueller, 361 Mo. 92, 96-97, 233 S.W.2d 700, 701-702. There is no more substance, in our judgment, to the appellant’s related argument that petitioner could not have had the actual and lawful custody of the adoptee for at least nine months prior to the entry of the decree, as required by Section 453.080, because no preliminary order transferring custody had been made by the court in which the decree of adoption was entered. Granted that Section 453.110 is meant to put an end to the indiscriminate transfer of children for purposes of adoption, an order of transfer of custody under that section is not a prerequisite to lawful adoption. “ * * [T]he custodial question presented to the court in decreeing adoption * * * is not whether there has been an order of a court of competent jurisdiction awarding custody of the child to petitioners during the minimum nine months’ period, but rather is it whether custody of the child has been lawful and actual in the petitioners during that period. * * * ” State ex rel. Dorsey v. Kelly, Mo., 327 S.W.2d 160, 165 [1]; In re Adoption of P. J. K., Mo.App., 359 S.W.2d 360, 367 [12]. The adoptee had been placed in the petitioner’s custody by an express order of the juvenile division of the circuit court of Barton County. When the decree of adoption was entered on May 23, 1966, the petitioner’s custody of the adoptee, albeit for limited purposes, had been lawful and actual since July 26, 1961, and that is all Section 453.080 requires. This point must be ruled against the appellant.

The second point raised by the appellant is that the court erred in receiving evidence from one N., the petitioner’s daughter-in-law, who testified in rebuttal on petitioner’s behalf. The evidence complained of consisted of the witness’ testimony that she had heard J., the appellant’s elder child, say that appellant and her present husband had “real beer parties” in their home “all the time.” This witness further testified that she had heard appellant’s mother say appellant had written her a letter stating that appellant and her present husband “were about to split up due to the fact that he [appellant’s husband] had sent his mother some money.” This evidence was received for impeachment purposes after the appellant testified there was little or no drinking in her present home; and the grandmother had denied receiving any letter from the appellant indicating discord between the appellant and her present husband.

Though we are inclined to think for various reasons that the appellant is right in saying this evidence should not have been received, we are not inclined to assign much importance to the error. This is a court-tried case, and upon review we simply consider such evidence as we deem admissible and exclude from consideration the evidence improperly received. Linders v. Linders, 356 Mo. 852, 861, 204 S.W.2d 229, 234 [13]. The erroneous reception of evidence in this instance does not require reversal, but in any case we have wholly excluded the evidence objected to from any consideration on this appeal.

The appellant’s final two points are 1) that the decree of adoption should not have been made because the petitioner is in poor health and is too old to be a suitable adoptive parent, and 2) that there is no substantial evidence to support a finding that the appellant had willfully abandoned her child for a period of at least one year immediately prior to the filing of the petition for adoption, so as to dispense with the necessity of her consent to this adoption. Since questions concerning the fitness of the petitioner and the welfare of the child are beside the point if no abandonment is shown, In re Adoption of J. M. K., Mo.App., 363 S.W.2d 67, 74-75 [8], we will consider these points in reverse order.

We would again emphasize that this is not a mere custody case. Adoption involves the dissolution of a constitutionally protected relationship, and unless the parents consent, or there is a substantial showing of some condition dispensing with the necessity of consent, the court has no power to enter a decree of adoption. Adoption may not be decreed simply to enhance the moral and temporal welfare of the child. The statutory condition relied on to dispense with parental consent in this case is that found in Section 453.040, par. (4), which provides:

“The consent of (sic) the adoption of a child is not required of * * *
(4) A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance.”

As we have elsewhere indicated, the conduct of a parent which amounts to abandonment or neglect must have occurred during the year preceding the filing of the adoption, but because abandonment is a matter of intent, evidence of a parent’s conduct, either before or after the statutory period, may be considered to determine the purpose and intent of the parent. In re Adoption of J., supra, 396 S.W.2d 257, 261-262. Otherwise put, the parent’s intention must be gathered from an objective consideration of his or her behavior as a course of conduct. Anno., 35 A.L.R.2d 662, 664-665, § 2 (1954); Therefore, even though the sequence of events is difficult to follow in chronological order, and though it is somewhat repetitious to do so, we will again summarize the appellant’s course of conduct relative to the care and custody of her second child.

In October 1960, after K.’s birth in August, the appellant was divorced from her second husband and was given custody of her child. From October 1960 to January 1961, the appellant left both her children with the maternal grandmother, who periodically left them in turn with her mother. The appellant was in and out of her mother’s home, and went from place to place and from job to job. In January 1961, the adoptee was left with the petitioner and her 'husband. The evidence is in conflict as to whether the appellant at that time intended to relinquish the adoptee to the petitioner permanently, but the evidence indicates to us that that was probably her intention. The report or “home study” mandatorily required by Section 453.070 recites that the appellant and the adoptee’s father asked the petitioner and her late husband to take and rear their child. The petitioner testified that the appellant was unwilling to execute a written consent to the adoption only because she didn’t “want to have the name if it goes into court.” On July 3, 1961, the adoptee’s natural father executed a written consent to the adoption, and later testified he did so because the appellant “advised me it was the best.” The appellant herself explained her frame of mind by saying that she had always felt that “sometime I wanted K. back.”

On March 1, 1961, when K. was seven months old, the appellant “absconded” with the “truck driver.” This led to the neglect proceeding. The juvenile- division of the circuit court of Barton County made an interim order placing the adoptee in her grandmother’s custody, but when it heard evidence touching the custody of both children in July 1961, it discovered that the petitioner already had the adoptee and simply recognized that fact in its record order.

Between the time of this hearing in Barton County, which was held on July 24, 1961, and December 8, 1961, the appellant seems to have made fairly regular visits with her child in the petitioner’s home. The appellant testified that from December 8, 1961, to May 1962, she and her present husband lived near the petitioner and that they visited K. regularly. In April 1962, thé appellant and her second husband again appeared before the juvenile division of the circuit court of Barton County, apparently seeking modification of the court’s earlier custody order, but this was refused, and the court ordered that K. remain in the petitioner’s custody.

In May 1962, the appellant’s present husband re-enlisted in the Air Force and went to Biloxi, Mississippi. The appellant remained with her husband in Biloxi for thirteen months, during which period she visited K. “just once.” Appellant returned to Webb City, Missouri, in January 1963, where she lived for several months with her third husband’s mother awaiting her husband’s return from Biloxi. We do not know the nature of her contact with the adoptee during this sojourn in Webb City; at the adoption hearing the appellant testified that from January 1963 to March 1963 the adoptee was in custody of the appellant’s mother, but other parts of the record show that this is not true and the appellant may merely have been confused as to dates. After he left Biloxi, the appellant’s present husband was transferred to Topeka, where he and the appellant lived for approximately two years. The appellant returned to Missouri “something like eight times” during the two-year period she lived in Topeka, but since the petitioner was difficult to contact by telephone there were “not very many” occasions on which she was able to see the adoptee. In February 1965, the appellant and her present husband took the appellant’s elder child into their home, but there is no evidence that the appellant made even the most perfunctory attempt since April 1962 to regain custody of her younger child until after the adoption proceeding was commenced. “About the middle” of 1965, as nearly as we can follow, the appellant and her husband moved back to Biloxi. The petitioner testified that in the year preceding the hearing on the adoption, which was held on May 12, 1966, the appellant had visited her child only once. When the appellant was asked by her counsel about the total number of times she had visited her child since she moved to Topeka, she answered : “We have only been home this last time, last summer once was in the last, well, on last summer would be right, but before that, I was down very few more times than 13.” The appellant’s explanation of her decreasingly frequent visits with the adoptee is that the petitioner was difficult to contact by telephone, or that the petitioner was away when the appellant happened to be in the vicinity.

Though of course it was not primarily the appellant’s duty to support her child, it is worth noting that she never made any inquiry to determine how the adoptee was being supported, and that the extent of her contribution toward her child’s material welfare has been to send a Christmas present every year, and a birthday present, she “thinks.” There is no record of any correspondence between the petitioner and the appellant. The petitioner herself testified that on a number of occasions the appellant made arrangements to visit K. but did not appear, and her testimony in this respect was borne out by the testimony of other witnesses, who said they had been in petitioner’s home when she and K. anticipated visits by the appellant and the grandmother which did not materialize. Illustrative of the kind of contact appellant had with the adoptee when she did visit is the appellant’s meeting with her younger daughter at Christmas in 1965. The appellant had her elder daughter with her in Webb City and met the petitioner and the adoptee. The appellant did not get out of the car but stated that “we sat there and talked * * * for a while. I hugged K. through the window.”

The terms “willful abandonment” and “willful neglect,” as used in Section 453.040, par. (4), have been very restrictively construed. In re Adoption of J., supra, 396 S.W.2d at 261 [3,4]; Anno., 35 A.L.R.2d 662, 664-665, § 2. It is not necessary, however, to arrange and distinguish the various authorities for the purposes of this opinion; it is sufficient to say that the terms must be and are somewhat elastic, and the question whether there has been a willful abandonment or neglect in any given case is essentially a factual question. In re C., C., and C., supra, 380 S.W.2d at 514-516 [3, 4] [5, 6] ; In re Adoption of P. J. K., supra, 359 S.W.2d at 366-367 [10,11]. Without detailing all the inferences possible from the evidence, our independent factual review convinces us that the appellant voluntarily committed the adoptee to the petitioner’s care when the child was but six months old, quite probably with the understanding that the petitioner and her husband would adopt the child at some future time. Whatever may have been her inward mental reservation — that “sometime I wanted K. back” — she has left the child wholly in the care of others for over six years, and in our view of the case she has never seriously considered assuming the burdens and obligations of parenthood so far as the adoptee is concerned. The appellant’s entire association with this child since April or May of 1962 has consisted of sporadic, short “visits” in the petitioner’s home, when the appellant found it convenient. In our judgment the appellant has willfully abandoned the child within the meaning of Section 453.040, par. (4), and her consent to this adoption is not required.

The final point for consideration is the appellant’s argument that petitioner’s health is so uncertain, and her age so advanced, that she is not a suitable adoptive parent.

The petitioner testified that at trial time she was fifty-five years old, and the adoptee was five. The petitioner also stated that she had had a hysterectomy and it is necessary for her to have a “hormone shot” about once a month. In 1961, the petitioner developed a mental illness as a sequel to an automobile accident, and was obliged to undergo shock treatments at a hospital in Springfield, Missouri. This mental illness, petitioner testified, lasted about a year and a half, but since that time she has had no more trouble. The appellant, calling our attention to these facts, and to our opinions in such cases as In re G., Mo.App., 389 S.W.2d 63, and In re D., Mo.App., 408 S.W.2d 361, argues that the record shows the petitioner is unable to care properly for the adoptee.

Undoubtedly the fact that the petitioner is fifty years older than the adoptee, and the fact that the petitioner’s health is somewhat uncertain, militate against the adoption. As the appellant says, we have several times expressed the view that young children should, when possible, be cared for by individuals who are in good health and of such age as those who normally bear children. Nevertheless, our statutes do not prescribe a maximum age for adoptive parents, and in the absence of a statutory provision to the contrary, advanced age does not disqualify a prospective adopting parent. Re Adoption of Brown, Fla., 85 So.2d 617, 618, 56 A.L.R.2d 820, 822 ; 2 Am.Jur.2d Adoption, § 63, p. 911; 2 C.J.S. Adoption of Children § 8, p. 379. Whether or not the petitioner’s age and the condition of her health were such as to disqualify her as a person with the ability properly to care for, maintain and educate the adoptee was primarily a matter for the trial court’s judgment, and we are inclined to defer to his finding.

For the reasons indicated, the decree is affirmed.

STONE, P. J., and TITUS, J., concur.

      . Paridy v. Caterpillar Tractor Co., 7 Cir., 48 F.2d 166, 168-169 [2] [4]; Knorp v. Thompson, 352 Mo. 44, 52, 175 S.W.2d 889, 894; Hess v. Hess, Mo.App., 183 S.W.2d 560, 564; 29 Am.Jur.2d Evidence, § 58, pp. 90-92.

      . Funk v. O.I.R., 3 Cir., 163 F.2d 796, 800-801 [1] and authorities cited note 6; Knorp v. Thompson, supra, 352 Mo. at 52, 175 S.W.2d at 894 [4]; Thompson v. Scott, 323 Mo. 790, 796-797, 19 S.W.2d 1063, 1065 [2]; 29 Am.Jur.2d Evidence, § 59, pp. 92-93.

      . All references to statutes and rules are to RSMo 1959, Y.A.M.S. and V.A.M.R. Section 453.110, pars. 1 and 2, reads:
      “No person, agency, organization or institution shall surrender custody of a minor child, or transfer the custody of such a child to another, and no person, agency, organization or institution shall take possession or charge of a minor child so transferred, without first having filed a petition before the circuit court sitting as a juvenile court of the county where the child may be, praying that such surrender or transfer may be made, and having obtained such an order from such court approving or ordering transfer of custody.
      “This section shall not be construed to prohibit the placing of a child in a family home for care by any parent, agency, or organization or institution, if the right to supervise the care of the child and to resume custody thereof is retained. If any such surrender or transfer is made without first obtaining such an order, such court shall have the right on petition of any public official or interested person, agency, organization, or institution, to inquire into the facts and to make such order as to the custody of such child as may be for the best interests thereof.”

      . Which reads: “When jurisdiction over the person of a child has been acquired by the juvenile court under the provisions of sections 211.011 to 211.431 in proceedings coming within the applicable provisions of section 211,031, the jurisdiction of the child may be retained for the purpose of sections 211.011 to 211.431 until he has attained the age of twenty-one years, except in cases where he is committed to and received by the state board of training schools.”

      . Which reads: “Any person desiring to adopt another person as his child may petition the juvenile division of the circuit court of the county in tohich the person seeking to adopt resides, or in which the person sought to he adopted may he, for permission to adopt such person as his child.” (Emphasis added.)

      . Which provides: “If the court, after due hearing, is satisfied that the allegations of the petition are true, that the person sought to be adopted, if a minor, has been in the lawful and actual custody of the petitioner or petitioners for a period of at least nine months prior to the entry of the adoption decree, and that it is fit and proper that such adoption should be made, a decree shall be entered * *

      . Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62; In re Mayernik, Mo., 292 S.W.2d 562, 568 [2]; Katz, Foster Parents v. Agencies, 65 Mich.L.Rev. 145, 156-158 (1966).

      . In re Adoption of J., Mo.App., 396 S.W.2d 257, 261 [1]; In re Adoption of J.M.K., supra, 363 S.W.2d at 74-75 [8]; Hartwig v. Hartwig, Mo.App., 333 S.W.2d 101, 102 [2]; In re Slaughter, Mo.App., 290 S.W.2d 408, 411-412 [5].

      . The following testimony by the grandmother appears of record in the first transcript:
      “Q. Did you ever notify anybody about this transfer of custody of K.? A. Who was I supposed to notify.
      Q.' The Order of the Court of March 9th placed this J. with you and also the other child, K. ?
      A. K. was with me a little while hut [appellant] was down there staying and I thought maybe, you know, the baby was with them and she has got a good home.
      Q. Is it the plan to leave this child, K., with [petitioner and her husband] ?
      A. Her Daddy has signed her over to them.”


author: MORRISON, Judge.

text:
    Winford Anthony WEEKS, Appellant, v. The STATE of Texas, Appellee.
    No. 40037.
    Court of Criminal Appeals of Texas.
    March 29, 1967.
    Second Rehearing Denied May 10, 1967.
    Third Rehearing Denied June 14, 1967.
    Clyde W. Woody, Marian S. Rosen, William M. LauBach, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, Wiley Cheatham, Dist. Atty., Cuero, for the State.
   AMENDED OPINION

MORRISON, Judge.

Our prior opinion is withdrawn, and the following is substituted in lieu thereof.

The offense is possession of heroin; the punishment, ten years.

Trial was had before the court without the intervention of a jury.

At a pre-trial hearing on appellant’s motion to suppress, U. S. Customs Agent Kline testified that at 2:00 p. m. on the day in question he received information by telephone from Customs Port Investigator Villareal that a delivery of heroin was to be made at a certain place in Alice, Texas, at 4:00 p. m., to two men in a certain colored pickup truck. Villareal received this information from an informer who had given him reliable information in the past. Kline testified that the same informer had given him reliable information in the past. Kline left Laredo in great haste in an effort to intercept the described pickup, but burned up the motor in his car. At some point in his chase, Kline received a radio message from Villareal who stated that he had seen the described pickup, gave Kline the license number and reported that he had received information that the two men riding therein had received the delivery of heroin.

Since he was unable to continue his pursuit of the pickup, Kline went to the Sheriff’s Office in Beeville and asked that the Department of Public Safety be notified of the description of the pickup and requested that it be stopped because it was transporting narcotics.

Dispatcher O’Neil of the Calhoun County Sheriff’s Office testified that at 6:55 p. m. on the day in question he received a radio message from the Department of Public Safety to “Pick up and hold for Narcotics Division a white and turquoise pickup, License number 4k5298”, and that he immediately transmitted such information to Deputy Sheriff Warren. He further stated that at 7:13 p. m. he received a radio message from Warren stating, “Have a pickup ahead of us traveling at a high rate of speed, advise city unit to stand by to intercept.” At 7:15 p. m. he received a message from Warren’s radio “that we have the pickup in custody.”

Warren and his fellow officer King testified that they spotted the described pickup and gave chase, that it turned into Edward’s filling station and as appellant and his co-indictee alighted, they placed them under arrest, handcuffed them and searched their persons for weapons.

The above we have concluded is a fair summary of the facts prior to the arrest, and we pause here to discuss the cases relied upon by appellant as authority for his contention that the arrest was unlawful. In Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, according to the majority opinion, all the arresting officer knew prior to placing Beck under arrest was that he had seen a police picture of Beck and knew that he had a record for operating a scheme of chances, whereupon he left the station house looking for Beck. In the case at Bar, Customs Inspector Villareal had been told by an informer who had proven himself reliable that a quantity of heroin was to be delivered at a specified place that afternoon in the city of Alice to someone who was driving a particularly described pickup and transmitted that information to Kline. Kline later received the license number of the pickup and information that a delivery had been effected. Kline, because of motor trouble, was unable to pursue the described pickup and had an all-points radio message transmitted to the other officers of the State. Warren received the message, saw the pickup and effected the arrest.

This Court in Jones v. State, 171 Tex.Cr.R. 608, 352 S.W.2d 270, upheld an arrest made by Louisiana officer who had learned from a police radio broadcast that an arrest warrant had been issued for Jones and his companion and were alerted to be on the lookout for a 1949 Buick bearing a California license plate and who arrested Jones when they saw him in an automobile of that description parked in a filling station. We have concluded that probable cause here exists.

The case before us does not present the same analogy as is set forth in Aguillar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. In footnote 4 the Court reasons that the officer who initiated the chain of events which resulted in the arrest of the accused had only a suspicion. We recapitulate, Villareal had been told by a reliable informer that a delivery was to be made to persons in a definitely described motor vehicle at a definite time and place. After this Villareal saw the motor vehicle and was informed that delivery had been effected. These facts were made known to Officer Kline. These facts also distinguish the case at bar from Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465, upon which appellant relies because in that case the arresting officer was not shown to have acted at the direction or request of any officer who had reasonable grounds for believing the accused had committed a felony.

Likewise in Marh v. United States, 5 Cir., 344 F.2d 317, the record failed to reveal what the Customs Agent on the border knew about Martinez’ activities which caused him to request the Duval County Constable to arrest him. From this case it is apparent that the test as to probable cause is the information known to the officer who requests another officer to effect an arrest. The case at bar, like Marsh v. United States, supra, is not one in which an officer arrests on his own initiative, but upon the request of another officer. If the requesting officer is in possession of sufficient knowledge to constitute probable cause, then he need not detail such knowledge to the arresting officer.' In other words, if the officer who initiates the request for arrest is in possession of sufficient knowledge to constitute probable cause, then he may transmit to the officer who makes the arrest only such information as is necessary for him to know who is wanted. In Smith v. United States, 123 U.S.App. D.C. 202, 358 F.2d 833, the United States Court of Appeals said, “The knowledge or information of the arresting officer at the time of the arrest is relevant only where an arrest is predicated on that officer’s personal observation and information concerning the criminal act.”

The question of prime importance in this case is the legality of the search of appellant’s pickup. After appellant and his co-indictee were placed under arrest, Chief Deputy Sheriff Roberts arrived in his police automobile and Edwards remonstrated with him about the fact that the police were blocking the driveway to his station, whereupon Roberts directed Warren and his fellow officer to carry appellant and his co-indictee to the jail which was approximately five miles away, and he drove appellant’s pickup, thus clearing the Edwards filling station. Upon arrival at the jail, appellant and his companion were booked, required to change into jail clothes and then accompanied several officers into the jail garage where appellant’s pickup was stored. At this juncture, Deputy Roberts informed appellant and his co-indictee that the officers had received a message that they were carrying heroin in the pickup and asked their permission to search, to which each replied that as far as they knew there was no heroin in the pickup and that the officers were welcome to look all they wanted. This occurred within a short time after the arrest. Roberts found 16 packages in the heater hose and when Kline arrived approximately one hour and a half later, he found 12 additional packages in the same hose, and a field test was conducted which indicated that the packages contained heroin. (At the trial on the merits it was stipulated that if the chemist from the Department of Public Safety were present, he would testify that he analyzed the contents of the packages and that he found them to contain heroin.)

The following morning after Kline had talked several times on long distance to two U.S. Commissioners, full custody of the prisoners was turned over to local authorities and both prisoners were carried before the local Justice of the Peace where bond was set. The multitude of cases cited by appellant need not be discussed because from the record in the case at bar it is one where consent to search was freely given.

Appellant’s third ground of error urged was that the trial court erred in admitting the statements made by appellant and his co-indictee while under arrest. The statement objected to was the testimony of the officers in which they say that Roberts asked for and received the consent of appellant and his co-indictee to search the pickup.

Appellant cites no authority holding that the giving of consent to search constitutes a confession. He does rely, among other authorities, upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441; and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Neither case involves the question of a voluntary consent to search an automobile following a lawful arrest. He also relies heavily on Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. Until the Supreme Court of the United States holds that the rules announced in those cases apply in voluntary consent cases, we will adhere to our former holdings that the fact that appellant was under arrest at the time he consented to the search would not render inadmissible the fruits of the search. See Lucas v. State, Tex.Cr.App., 368 S.W.2d 605, Garrett v. State, Tex.Cr.App., 400 S.W.2d 906, and cases there cited. None of the cases cited by appellant prohibit a voluntary waiver of a constitutional right such as we have found in this case. We also overrule appellant’s contention that the trial court erred “in allowing all evidence to be admitted in the trial of appellant for the reason that the appellant was not immediately taken before a magistrate.” Appellant’s arrest occurred on June 6, 1965, before the effective date of the 1965 Revision. and. no confession was taken from him. Appellant’s trial on the merits began on July 13, 1966, after the effective date of the Texas Code of Criminal Procedure, 1965, and after the applicable date (June 13, 1966) of the decision of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. There being no confession taken from appellant, we find nothing to support his contention in Articles 14.06 and 15.17, Vernon’s Ann.C.C.P., 1965, cited by appellant or in Miranda v. State of Arizona, supra.

We overrule appellant’s contention that the evidence is insufficient to support the conviction.

Finding no reversible error, the judgment is affirmed.

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

Since the rendition of our original and amended opinion herein, our attention has been directed to the opinion of the Supreme Court of the United States in Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.

Texas has a statute similar to Sec. 11611 of the California Health and Safety Code (Article 725d, Sec. 2, Vernon’s Ann.P.C.) which authorizes a vehicle which is being used in the unlawful transportation of narcotics to be seized and forfeited to the Texas Department of Public Safety in accordance with the terms of such Article. See also Abrams v. State, Ga., 154 S.E.2d 443.

In addition to what we said in our prior opinion, we now adopt the reasoning of the Supreme Court in overruling appellant’s second motion for rehearing.

It is so ordered.