author: FINCH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Albert BURRAGE, Appellant.
    No. 52287.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 11, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Gary A. Tatlow, Sp. Asst. Atty. Gen., Moberly, for respondent.
    Elmer Price, Gary T. Sacks, St. Louis, for appellant.
   FINCH, Presiding Judge.

Defendant was tried on an information which charged him with burglary in the second degree and stealing and with one prior felony conviction. The jury acquitted defendant of burglary but convicted him of the felony of stealing more than $50.00. The trial court found the defendant did have a prior felony conviction on which he had been incarcerated and fixed defendant’s punishment at imprisonment in the City Workhouse for one year with credit to be given for two months and twelve days time spent in jail. Defendant has appealed from that conviction and sentence.

Defendant was represented in the trial court by appointed counsel, who filed a brief on appeal and argued the case orally. The questions presented on appeal involve the sufficiency of the evidence and the propriety of certain instructions.

The State’s evidence, viewed most favorably, as we must do in passing on the sufficiency of the evidence to support a verdict of guilty, State v. Taylor, Mo., 324 S.W.2d 643, 76 ALR 2d 671, supports the following recital of facts: On February 28, 1966, sometime between 8:15 a.m., and 3:30 p.m., a television set, a sewing machine, a hi-fi, some records, a fan, and a steam iron were taken from the apartment of Mrs. Barbara Davis at 1368a Clara in the City of St. Louis. The theft was discovered the latter part of the afternoon and Mrs. Davis notified the police.

On the evening of March 1, 1966, at approximately 10:30 p.m., two officers of the St. Louis Police Department noticed a car stopped in a “No Parking” zone at 1500 Clara. Standing next to the rear door on the left side of the car was the defendant, Albert Burrage. Two people were observed on the other side of the car but they moved away and disappeared as the police car approached. The officers got out of their car and approached the parked car. The left rear door of that car was open and the officers observed a television set on the rear seat of the car.

The officers placed a parking violation ticket on the car and asked who owned the television set, and Burrage said that it belonged to him and that he was going to pawn it because he had a daughter in Homer G. Phillips Hospital and needed the money. He further stated that he brought it from his girl friend’s house at 1368 Clara. He gave her name as Aline Baker. With reference to the car itself, defendant told the officers that it belonged to his brother-in-law, Joe Hughes, and said something to the effect that Hughes had gone over to East St. Louis, leaving the car there with him. The officers ascertained that the car was registered to Joe Hughes at an address in St. Louis. They sought to talk to him there but he was not at home and apparently there was no attempt to locate him later. The officers’ best recollection was that the keys to the car were in the ignition switch at the time they talked to the defendant.

The officers told defendant they would go to 1368 Clara to see whether Aline Baker would verify his statement that he had brought the television set from her house, and they took defendant along. Miss Baker did not verify the defendant’s story and said that she did not know anything about the television.

The officers then took defendant to the Seventh District Station at Union and Page for normal booking procedure. When defendant was searched, some pawn tickets were found in his pants pocket, one of which indicated on its face that it was for a sewing machine pawned at a pawn shop on Franklin Avenue. The officers contacted Mrs. Davis and she came to the police station and identified the television set as the one taken from her place. The next day, Officer Reed took Mrs. Davis to the pawn shop where she identified the sewing machine represented by the pawn ticket as being the one taken from her apartment.

The evidence disclosed that the defendant was living with Miss Baker at 1368 Clara, which was the downstairs apartment in the same building where Mrs. Davis occupied the second-story apartment.

We hold that the evidence was sufficient to sustain the conviction of defendant for stealing the articles in question. This was not simply a case of defendant being in the vicinity in suspicious circumstances. When the officers found defendant at 10:30 p.m., standing beside the open rear door of the car in which the stolen television set was located, he told them that the car belonged to his brother-in-law, who had gone to East St. Louis and had left the car there with him. The keys were in the car. Furthermore, defendant claimed ownership of the stolen television set, saying he had brought it from the apartment of his girl friend at 1368 Clara and that he was going to pawn it. Hence, he claimed ownership of and dominion over the stolen article found in his possession. In addition, the defendant had in his pocket a pawn ticket for the stolen sewing machine. It is true, as defendant points out, that the clerk at the pawn shop stated that he could not identify the defendant as the man who pawned the sewing machine, but the fact remains that the defendant, on the evening following the theft of the sewing machine, was in possession of the pawn ticket which covered the stolen sewing machine. Defendant asserts that the evidence did not clearly establish that the pawn ticket was in the pants pocket of the defendant and that the officers indicated that it might have been in the pocket of a fatigue jacket which defendant’s brief asserts the defendant picked up off of the seat of the car when he accompanied the officers. We do not agree with this interpretation of the evidence. We find that Officer Reed said, “To the best of my knowledge, those tickets came out of his pocket, his trouser pocket; I do not remember which one of his pockets it was, out of his trouser pocket.” When asked if he was sure that the ticket did not come out of the fatigue jacket, the officer replied, “I don’t known anything about a fatigue jacket.” This evidence, viewed most favorably for the State, certainly established that the pawn ticket was in the defendant’s pants pocket.

The rule is well settled that possession of recently stolen property is sufficient to sustain a conviction of larceny. State v. Jones, Mo., 358 S.W.2d 782, 784[2]; State v. Durham, Mo., 367 S.W.2d 619, 621 [2]; State v. Reagan, Mo., 328 S.W.2d 26, 29[6], To authorize such inference of guilt, the defendant’s possession of the property should not be too remote in point of time from the larceny, and “it should be a personal possession, exclusive, distinct and conscious, and unexplained.” State v. Durham, supra, 1. c. 622. Where, as here, there is no question but what the property was stolen, or as to the identity of the property in the defendant’s possession, and the possession was on the day following the larceny, and the defendant asserted ownership, possession and control over the property, it was permissible for the jury to infer therefrom that defendant had participated in the stealing.

Defendant cites several cases as authority for the proposition that the court erred in overruling his motion for judgment of acquittal. These cases, however, are not analogous. In State v. Rogers, Mo., 380 S.W.2d 398, a case of attempted burglary, there was no element of recent possession of stolen property present. An officer had observed the defendant in a car on a shopping center parking lot on two occasions during the night, but defendant was not seen attempting to break into the jewelry store and there was no evidence to connect the defendant with some items such as gloves, a white pillow case, etc., which were found in front of the jewelry store, and there was nothing to show anything except that defendant had an opportunity to commit the crime and had been guilty of suspicious actions.

In State v. Watson, Mo., 350 S.W.2d 763, the defendant was a passenger in a car in which some stolen goods were found. The driver of the car testified that he and another man and two women had committed the burglary but that the defendant had nothing to do with it and he had picked him up later as a hitchhiker. We will not detail all of the evidence in the case here, but the court concluded that the evidence was not inconsistent with the defendant being a hitchhiker and wholly innocent of the burglary and stealing, and hence reversed the defendant’s conviction. The court held that the evidence did not establish possession of the stolen goods by the defendant so as to justify an inference of his guilt.

In State v. Walker, Mo., 365 S.W.2d 597, a power saw was stolen and was found about three weeks later in a creek about one-fourth mile from the house of the man from whom the saw was stolen. There was evidence that the defendant was in the neighborhood on the night of the taking, under suspicious circumstances, but this court held that circumstantial evidence showing a mere opportunity to commit a crime and creating a suspicion only is not enough to sustain a conviction for stealing. Here, again, there was no possession of stolen articles, and the case is not analogous. The same is true of the other cases cited on this point by the defendant.

Defendant’s other claims of error presented on appeal relate to Instructions Nos. 3 and 5 and to the failure of the court to give Instruction No. A which was tendered by the defendant. The three instructions in question were as follows:

“Instruction No. 3

“If you find and believe from the evidence that the defendant is not guilty of burglary in the second degree, but find beyond a reasonable doubt that on February 28, 1966, the defendant did wrongfully take and carry way from the possession of Barbara Davis, occupant of the dwelling house and building and from the said dwelling house and building of the said Barbara Davis, the property described in the evidence, to-wit: one General Electric make television set, of the value of $50.00, one Sew-Mor make sewing machine, of the value of $45.00, one Tru-Tone make Stereo, of the value of $50.00, various phonograph records, of the total value of $50.00, one electric iron of the value of five dollars, one Breeze Box make fan, of the value of five dollars, or any of said property of the value of $50.00 or more, with the felonious intent at the time to fraudulently convert the same to his own use and deprive the owner thereof permanently without her consent, and if you find that said property was the property of Barbara Davis, occupant of the said dwelling house and building and was of the value of fifty dollars or more, then you will find the defendant guilty of stealing in the amount of fifty dollars or more; and unless you so find the facts to be, you will acquit the defendant altogether.”

“Instruction No. 5

“You are further instructed that evidence is of two kinds, direct and circumstantial. Evidence is direct where a witness testifies directly of his own knowledge of the main fact or facts to be proven. Circumstantial evidence is the proof of facts and circumstances in a given case from which the jury may infer other and connected facts which usually and reasonably follow, according to the common experience of mankind.

“Crime may be proven by circumstantial evidence as well as by the testimony of eye witnesses; but, in order to justify the conviction of a defendant upon circumstantial evidence alone, it is not sufficient that the facts proven coincide with, account for, or even render probable the hypothesis sought to be established, but they must exclude every other hypothesis but the one sought to be established, namely the guilt of a defendant; and unless the facts and circumstances proven are consistent with each other, and with the guilt of a defendant, and absolutely inconsistent with and unexplainable upon any other reasonable theory than that of the guilt of such defendant, under the law you would not be justified in convicting him upon such evidence alone.”

“Instruction A

“There is no direct evidence of the guilt of the defendant in this case. Before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must all form a' complete chain, and must all point to his guilt, and must be irreconcilable with any reasonable theory of his innocence, and before you can convict the defendant on circumstantial evidence alone, the circumstances must not only be consistent with his guilt and point directly thereto, but must be absolutely inconsistent with any reasonable theory of his innocence.

“Therefore, if you find and believe that the facts proved are not consistent with the guilt of the defendant, or that such facts are not inconsistent with any rational theory of the innocence of the defendant, or if all of such facts taken together do not prove the guilt of the defendant beyond a reasonable doubt, you must find the defendant not guilty.”

The first attack on Instruction No. 3 is that it submits to the jury the issue of the theft of items concerning which there was no evidence connecting defendant with the taking of such items. These were the various items other than the television set and the sewing machine. In State v. Weaver, Mo., 56 S.W.2d 25, only one of several items stolen was recovered. It was a revolver and was not by itself sufficient to sustain a conviction in the case of grand larceny. On the very issue raised herein by defendant with respect to Instruction No. 3, this court said, 1. c. 26: “The defendant was charged with burglary and larceny, and was found guilty only of larceny. Evidence tending to show that defendant stole the revolver also tended to show that he stole the other articles. It has been decided in other jurisdictions that possession of a part of the property stolen is evidence tending to show the theft of it all. Lynch v. State, 95 Ark. 168, loc. cit. 172, 128 S.W. 1053; 36 C.J. 896.”

It was not error to include in the instruction the other items shown to have been taken even though some of them were not specifically traced to the possession of defendant. Evidence tending to show that defendant stole the television set and the sewing machine also tended to show the theft by him of the other articles.

Defendant’s second attack on Instruction No. 3 is that it placed values on items stolen although evidence of such values was weak, at best, and because such values were for the jury to determine. Almost this identical objection was made and rejected by this court in State v. McCulley, Mo., 327 S.W.2d 127, 130 [3], to an instruction which was essentially the same as Instruction No. 3. The court there held that such evidence was sufficient to submit the issue of value to the jury. Similarly, here Mrs. Davis testified as to values of the various items stolen and there was no evidence to the contrary. This was sufficient justification for submitting such values to the jury and under the instruction the jury was specifically required to find that the value of the property stolen exceeded $50.00. “At least as to common classes of personal property, the testimony of the owner without more is sufficient to justify submitting to the jury the issue of the value of such property.” State v. Walker, Mo., 365 S. W.2d 597, 599.

The third attack on Instruction No. 3 is that it failed to tell the jury that if they acquitted defendant of burglary in the second degree but found him guilty of stealing, they must determine the value of the goods stolen and return a verdict in accordance with their determination of value, which would be either stealing $50.00 or more or stealing less than $50.00. Actually, the instruction told the jury that unless they found the property stolen was of the value of $50.00 or more, they should acquit the defendant.

In this case the only evidence with respect to the value of the property was that it was of a value exceeding $50.00. There was no evidence to justify a finding that the property taken was of a value of less than $50.00. Under those circumstances, the trial court was not required to instruct on stealing of property of value less than $50.00. State v. Knicker, Mo., 366 S.W.2d 400, 402[2]; State v. Jones, Mo., 358 S.W.2d 782, 784[5], The case of State v. Crow, Mo., 388 S.W.2d 817, relied on by defendant, does not hold otherwise. In that case the evidence was that the defendant had stolen $6.00. The jury found him guilty of burglary so that the amount stolen was immaterial. All this court’s opinion in that case holds is that the failure of the court to instruct on the offense of stealing less than $50.00 was not prejudicial to the defendant because the jury found him guilty of burglary. That holding does not imply that an instruction on stealing less than $50.00 is required where all the evidence was that the property taken exceeded the value of $50.00.

Instruction No. 5 is attacked as an incorrect instruction on the law of circumstantial evidence. Specifically, defendant complains that it did not require the State to assume the burden of proof beyond a reasonable doubt with respect to circumstantial evidence. The defendant cites the cases of State v. Worley, Mo., 353 S.W.2d 589, and State v. Drake, Mo., 298 S.W.2d 374, 377, cases in which the circumstantial evidence instruction approved by the court did in fact contain language to the effect that the jury must be satisfied beyond a reasonble doubt. Those cases did not, however, hold that such language must be contained in every circumstantial evidence instruction and that failure to include such language within the body of the circumstantial evidence instruction would be prejudicially erroneous. As a matter of fact, there are numerous cases in which this court has approved circumstantial evidence instructions which in and of themselves make no reference to the matter of proof beyond a reasonable doubt. State v. Regazzi, Mo., 379 S.W.2d 575, 579 [3] ; State v. Fletcher, Mo., 244 S.W.2d 98, 103 [6]. See, also, Raymond, Missouri Instructions, Vol. 2, §§ 3431-3448.

All of the instructions must be read together and the question is whether the instructions, read as a whole, fairly informed the jury that to convict on circumstantial evidence, they must find that such evidence established defendant’s guilt “beyond a reasonable doubt.” The instructions in this case did so.

Instruction No. 3 told the jury that if they acquitted defendant of burglary (which they did), but found “beyond a reasonable doubt” that defendant wrongfully took property of a value of $50.00 or more from Mrs. Davis, they should convict him of stealing in an amount of $50.00 or more. Instruction No. 5 then explained that evidence could be either direct or circumstantial, and that “to justify the conviction of a defendant upon circumstantial evidence alone, it is not sufficient that the facts proven coincide with, account for, or even render probable the hypothesis sought to be established, but they must exclude every other hypothesis but the one sought to be established, namely the guilt of a defendant ; and unless the facts and circumstances proven are consistent with each other, and with the guilt of a defendant, and absolutely inconsistent with and unexplainable upon any other reasonable theory than that of the guilt of such defendant, under the law you would not be justified in convicting him upon such evidence alone.”

Instructions Nos. 3 and 5, when read together, did adequately cover the issue of circumstantial evidence and the fact that guilt based thereon must be established beyond a reasonable doubt.

As this court said in State v. Armstrong, Mo., 361 S.W.2d 811, 818, “no certain and specific terminology is required in a circumstantial evidence instruction so long as it advises the jury, in substance, that the circumstances proved must be consistent with each other and with the hypothesis that the defendant is guilty, and inconsistent with any theory of his innocence and with every reasonable hypothesis, except that of guilt. State v. Conway, 348 Mo. 580, 154 S.W.2d 128, 131(4, 5); State v. Maggard, 250 Mo. 335, 157 S.W. 354, 357.”

In view of the fact that Instructions Nos. 3 and 5 adequately instructed the jury on the issue of circumstantial evidence and the burden of proof with reference thereto, it was not prejudicial error for the court to refuse defendant’s tendered Instruction A.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner. PER CURIAM.

license: Public Domain

text:
    Marilyn E. HAASE, Appellant, v. Dr. Bernard T. GARFINKEL, Respondent.
    No. 52396.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.

      George R. Gerhard, St. Louis, for plaintiff.
    Norris H. Allen, Anderson, Gilbert, Wol-fort, Allen & Bierman, St. Louis, for respondent.
   HOUSER, Commissioner.

The widow of Elmer C. Haase, Jr. brought this malpractice action against Dr. Bernard T. Garfinkel for the wrongful death of her husband. A trial jury awarded plaintiff $17,600. The circuit court sustained defendant’s post trial motion for judgment in accordance with his motion for a directed verdict, and plaintiff appealed.

The petition charged that defendant, a heart specialist, accepted Mr. Haase as his patient, conducted examinations and tests on July 1 and 2, 1965 from which he made a diagnosis of myocardial infarction and arteriosclerotic heart disease, and knew that Mr. Haase was in danger of dying unless treated appropriately, but negligently and unskillfully discharged him from the hospital on July 3 without medication, prescription or advice and omitted to treat him, as a result of which Mr. Haase died on July 4. The case was submitted to the jury on negligent failure to prescribe and give anticoagulant drugs.

The single point on this appeal is that the court erred in its ruling for the reason that the evidence and inferences to be drawn therefrom demonstrate that defendant failed to use and apply that degree of care and skill required of him as a physician in the treatment of deceased.

Plaintiff’s case consisted of her own testimony; that of her daughters and the pharmacist; the hospital records; excerpts from defendant’s deposition, and an interrogatory and answer.

Viewed in the light most favorable to plaintiff, these are the essential facts: On Thursday, July 1, 1965 Mr. Haase awakened and complained to plaintiff of recurring pain in his left arm and chest. He had never made any similar complaints. At lunch time he stated that he thought he ought to see a doctor because he felt that he was having a heart attack. Referred to defendant as a specialist in heart diseases, he talked to defendant on the telephone and by prearrangement they met in the emergency room of Barnes Hospital early on the afternoon of July 1 where Mr. Haase related his complaints of chest pain, left arm pain, shortness of breath and nausea. Defendant accepted him as a patient and became responsible for him. At that time defendant suspected that he had an episode of angina pectoris (pain in the chest due to coronary artery insufficiency). The doctor ordered him hospitalized to rule out or in the possibility of an acute myocardial infarction (necrosis or death of the tissue of the heart muscle as a result of lack of blood supply to the arteries of the wall of the heart muscle). The patient arrived at his assigned room on a stretcher.

Electrocardiograms and a blood chemistry test to determine the concentration of enzymes in the blood stream, as well as several routine tests, were run. One of the EKG’s was not found when this case was investigated, but the available one showed a slow heart rate with some sinus arrythmia (interrupted, abnormal rhythm) but otherwise normal. The only medical interpretation of the EKG was that it was normal. The enzyme test was found to be normal.

Mr. Haase remained in the hospital until 1:30 p. m. July 3, essentially resting and in no distress except for fleeting chest pains. On July 3 defendant discharged him to go home and rest, directing that he leave the hospital in a wheelchair. (There was no such order on the “order sheet” of the hospital records and in fact he walked out.) Mr. Haase was instructed to see defendant at his office the following' Tuesday, July 6.

On Mr. Haase’s departure from the hospital defendant noted in the medical record: “PT [patient] has been comfortable since coming into hospital. Occ [occasional] fleeting chest pains. EKG’s normal. Enzymes normal. We have no ecidence for infarct [infarction]. Though this could be angina it is atypical. Pains are fleeting — not constant. Will allow him to go home to watch. We must assume this man has cor [coronary] insufficiency till proved otherwise though this could all be GI [gastro-intestinal] tract SX [symptoms].” Defendant did not think the trouble was in the gastro-intestinal system, and gave no GI tests because “you don’t take a person who has had a recent attack of pain and put him through a GI series.” Defendant considered that the most likely diagnosis was coronary artery insufficiency. Interne Dr. Smith, however, in writing the discharge summary, made this discharge diagnosis: “Arteriosclerotic heart disease; Myocardial infarction.” When this 'lawsuit was threatened defendant read the records and noted in his handwriting “There is no evidence for this diagnosis.”

The terms coronary insufficiency, coronary artery disease and coronary artery insufficiency, used interchangeably, refer to a condition in which the flow of blood through the coronary arteries to the heart muscle is obstructed; a narrowing of the arteries through arteriosclerosis or blood clots forming in the arteries, cutting off an adequate supply of blood to the heart. Myocardial infarction is a result of coronary artery insufficiency.

Dicumarol, coumadin, nitroglycerine and peritrate are some of the anticoagulant drugs used in the treatment of heart disease to prevent clots from forming in narrowed coronary arteries, or arteries afflicted with arteriosclerosis. They lower and inhibit the clotting ability of blood. There are hundreds of dilator drugs grouped in the anticoagulants which are used to treat coronary insufficiency. Mr. Haase was not given any of these drugs during his 48-hour stay at the hospital, and none of these was prescribed for him at the time of his discharge. He was driven home, where he spent the evening in bed, getting up only for meals. On Sunday morning, July 4 he awakened with pains in his chest and arm. He ate a good breakfast and was sitting in the living room reading a newspaper when he was seized with a severe chest pain. He went to bed with a heavy heart pain, perspiring. Mrs. Haase tried to get a doctor at the hospital. Eventually Dr. Strauss, defendant’s office associate, called her and after she had described the pains he said he was sending two prescriptions. One was a tablet to be kept under his tongue for 5 minutes. (Nitroglycerine.) If that did not relieve the pain the procedure was to be repeated 3 times. If that still did not relieve the pain she was instructed to give him the other prescription. (An analgesic.) Feeling better, Mr. Haase got up and shaved. Thereafter he was seized with the last and most severe pain. Plaintiff called the drugstore, called a neighbor, called the fire department, which gave him two tanks of oxygen, to no avail, and he died. During this period plaintiff had been in telephone communication with defendant, who stated that he should never have let him out of the hospital and advised getting him right back. Finally the drugstore delivered the medicine but by that time Mr. Haase had died.

An autopsy was performed 6 hours after death. The provisional anatomical report listed the cause of death as acute myocardial infarction, with a provisional diagnosis showing that the primary cause of death was “Arteriosclerosis of the coronary artieries (advanced) with focal narrowing; aorta (moderate) with calcification and ulceration ; renal arteries (slight); and cerebral arteries (moderate) with atheroma (history of sudden death in a paroxysm of chest pain),” and 2. “Cardiac hypertrophy (475 gm.).” An anatomical diagnosis filed in January, 1966 (following the filing of this suit on January 4) stated that the patient “remained free of chest pain while in the hospital and a work-up for a suspected myocardial infarction was negative.” In reviewing the autopsy the summary proceeded: “There was no gross occlusion of the coronary arteries. Microscopic examination of a section of coronary artery with marked focal narrowing revealed a recent thrombus on a large intimal plaque. There was no gross or microscopic evidence of myocardial infarction. This man probably had an anginal episode a few days prior to death. The terminal event could have been an acute myocardial infarction and/or an arrythmia.”

Based on a telephone conversation with the pathology department defendant wrote plaintiff a letter advising her that the autopsy showed extensive arteriosclerosis involving all the major coronary arteries, progressive and almost complete occlusion of these arteries and acute thrombosis or blood clot of the remaining open vessel.

From defendant’s deposition plaintiff read as admissions against interest the following: When defendant discharged Mr. Haase from the hospital he felt that he probably had narrowing of his coronary arteries; that this was the most likely, although he had no definitive diagnosis at the time; that most likely the pain had been secondary to a transient episode of coronary artery insufficiency; that the drugs “most often used are anticoagulant, such as dicumarol or coumadin, nitroglycerine and long acting dilator drugs, of which there are hundreds, but which per-itrate is a drug that is used frequently,” and that he discharged Mr. Haase from the hospital with no prescription. In answer to an interrogatory defendant answered that the prescribed treatment for a hypothetical case of suffering from chest and arm pain, nausea and shortness of breath is: no medication except mild sedative; with careful observation of the pulse, blood pressure, heart, lungs and general clinical state, with observation of serial electrocardiograms and blood enzymes. “A myocardial infarction is treated with strict bed rest from two to four weeks, with oxygen if necessary, heavy sedation, narcotics for pain and sometimes with anticoagulant therapy.” He indicated that successive electrocardiograms showing what this man’s EKG’s showed “are frequently present in a healthy individual.”

Defendant testified that while he would not have prescribed nitroglycerine for Mr. Haase on Sunday, July 4 he may well have put him on nitroglycerine eventually; that he uses this drug as a symptomatic drug, in patients with coronary artery disease.

Plaintiff did not produce any medical testimony on the question whether the discharge of Mr. Haase from the hospital without medication or prescription and the failure to prescribe and give anticoagulant drugs would constitute a failure on the part of the defendant to exercise that degree of care, skill and proficiency which is commonly exercised by the ordinarily careful, skillful and prudent heart specialist under the same or similar conditions.

Defendant’s case consisted of the testimony of a highly qualified heart specialist, Dr. Massie; that of the interne Dr. Smith, and defendant’s own testmony. Dr. Massie testified that the EKG’s were perfectly normal and that the tracings showed that the heart muscle was not involved; that the coronary blood flow was adequate, “so that the heart muscle showed no electrical abnormality.” Further, that if the patient had had a myocardial infarction the enzyme test should show abnormality but the enzymes were normal in this case; that the evidence indicates that the patient did not have a myocardial infarction and that defendant’s findings and conduct in allowing the patient to go home on July 3 were a reasonable conclusion, based on the hospital record, cardiographs, enzyme tests, etc.; that based on the clinical evidence a reasonably careful and skillful physician would conclude that there was no evidence of myocardial infarction; that the assumption that the man had coronary insufficiency but that “this may all be GI symptoms” is a reasonable conclusion in the exercise of ordinary care and skill; that organs that may be the cause of chest pain include the lungs, ribs, stomach, esophagus, diaphragm, and that a rea.-sonably careful and skillful physician would conclude that the symptoms might have been caused by gastro-intestinal symptoms after the work-up was done at the hospital; that the failure of defendant to put Mr. Haase through GI tests at the time was excellent judgment; that this would have been the wrong treatment because these tests are fatiguing; that there are many pros and cons in the use of anticoagulant drugs, and that there are thousands of articles on whether they should be given or not, and that there are a lot of opinions against giving such treatment.

The interne testified that he agrees with defendant that there is no evidence for the diagnosis of myocardial infarction; that in writing this diagnosis in the discharge summary he was influenced in his thinking by the fact that the patient had a recurrence of chest pains the day after discharge, and with the knowledge that he had died. In effect, he took back what he had previously written. He also denied that anticoagulants are a rather basic, common treatment for that heart condition.

Defendant denied that he made a diagnosis of myocardial infarction. He was of the opinion that Mr. Haase had no damage to his heart muscle at the time he left the hospital. The postmortem did not cause him to change this opinion. He thoroughly presented the case against the use of anticoagulants and testified that in his practice he had almost abandoned the use of anticoagulants in coronary artery disease without myocardial infarction; that he elected not to use the anticoagulant therapy on this patient; that it takes 48 hours before coumadin has any effect, 72 hours before dicumarol has any effect, and 5 to 8 days before levels of decrease “or what we call the therapeutic range of anticoagulation can be reached with these drugs” — that it would have taken the blood from 5 to 8 days to become “anticoagu-lated”; that there is no medication that would prolong life in coronary heart disease.

Plaintiff argues that all the evidence and the reasonable inferences to be drawn therefrom favorable to plaintiff proves that Mr. Haase died as a result of defendant’s failure to properly treat him for a disputed, but proven, diagnosis and condition of myocardial infarction, or an admitted diagnosis and condition of coronary artery insufficiency, and that plaintiff proved “out of the collective mouths of the defendant, that defendant failed to exercise that degree of care that an ordinarily careful and prudent physician would have exercised” in the treatment of Mr. Haase.

We have concluded that plaintiff failed to make a submissible case and that the court properly sustained defendant’s motion for judgment in accordance with his motion for a directed verdict.

The evidence does not show that Mr. Haase died as a result of failure to treat a proven diagnosis of myocardial infarction; the case was not submitted to the jury on that theory. All of the evidence in the case, with the exception of the statement by the interne Dr. Smith in the hospital record, shows that when Mr. Haase left the hospital he had not suffered a coronary occlusion or myocardial infarction. Dr. Smith’s notation, made after the death in contemplation of postmortem information, was repudiated by Dr. Smith at the trial. This theory of the case was abandoned.

Plaintiff submitted on negligent failure to prescribe and give anticoagulant drugs, but neglected to prove that defendant’s omission constituted a departure from the standard of skill and proficiency to be expected of a cardiologist. There is no such expert medical evidence in this record. Its omission is fatal to plaintiff’s case. The only evidence on this point is to the contrary, namely, that defendant exercised a reasonable medical judgment in the manner in which he conducted himself as a doctor in this case.

Whether anticoagulant drugs should have been administered to Mr. Haase under the circumstances shown in evidence is a question beyond the knowledge and competence of lay jurors. In specialized matters such as these the jurors must be guided by specially trained experts lest they “ ‘be cast into a river of doubt’ ” and required to “ ‘establish an arbitrary standard of their own founded upon conjecture and surmise’ ”. Fisher v. Wilkinson, Mo.Sup., 382 S.W.2d 627, 632. In Hart v. Steele, Mo.Sup., 416 S.W.2d 927 (No. 52,549, 1967) we reiterated the rule that in the great majority of malpractice cases a submissible case may only be made by expert medical testimony; that where the matter at issue involves knowledge beyond the ken of the average juror, highly trained experts, knowledgeable in the field, are needed to aid the jury in reaching a conclusion on whether the conduct of the defendant doctor violated the standards expected of ordinarily careful, skillful and prudent doctors acting under similar conditions.

Plaintiff, however, insists that defendant and all of his witnesses admit that Mr. Haase was suffering from coronary artery insufficiency when he was in and when he left the hospital and that he died as a result of this condition, and that the foregoing, taken with the following testimony of defendant and Dr. Massie, is conclusive of defendant’s liability to plaintiff in failing to properly treat the patient. Plaintiff refers to defendant’s testimony that there are many drugs that can be and often are used in treating coronary insufficiency (naming the dilator drugs); that the purpose of anticoagulants is to try to prevent blockage of the heart due to a narrowed artery or clot; defendant’s concession that he used nitroglycerine in patients with coronary heart disease, as a symptomatic thing and well may have put Mr. Haase on nitroglycerine eventually; the fact that defendant’s associate Dr. Strauss rushed nitroglycerine to Mr. Haase in his last extremity, and defendant’s admission that he did not prescribe any of the anticoagulants when he discharged the patient from the hospital.

These excerpts from the testimony, however, must be read in context and when so considered they do not bridge the gap for plaintiff. Defendant explained that “there are pros and cons that rage with the efficacy about all of these drugs”; that their use is a controversial type of treatment; that since the making of the original report of this type of therapy there has been an increasingly greater number of people who are opposed to this type of treatment, because as the drugs have been used more and more they have learned new things about them; that studies have shown that the drugs did not prevent clotting, and the incidence of blood clots in people taking anticoagulants was as high as those patients who were not taking them; that the drugs have been shown in some instances to actually increase the risk to patients with coronary heart disease; that complications include bleeding from the kidneys, stomach and colon, and they can cough up blood; bleeding enough to go into shock, with drop in blood pressure, causing changes in circulation, which may affect the heart; that they may cause pulmonary embolus; that he has “almost abandoned” the use of anticoagulants in coronary heart disease without myocardial infarction. He further testified that nitroglycerine has potent side effects, dilation of other blood vessels in the body, the stomach, leg and head arteries; that patients get a pounding in the head, and their blood pressure may fall, thus sometimes producing further damage to the heart muscle; that at the time he felt that there were certain risks about using it and that he “wanted to know more about him” first. The totality of defendant’s testimony on this phase of the case was that while there are many drugs used by many doctors for this purpose, and even by defendant “in the patient in whom I have established a well-determined pattern of pain with exertion and relief with rest,” nevertheless these people are treated and the drugs are used “according to the situation,” “under specific situations.” In this case defendant deemed further tests and studies necessary before using these drugs. He had not ruled out GI involvement.

Dr. Massie testified that there are many pros as well as cons about the use of anticoagulant drugs; that “[a]t every medical meeting, almost every other year in the Heart Association, there is (sic) pros and cons, and believe me there are a lot of cons, I mean against this treatment, as much as pro the treatment. One has to individualize and this I am sure is in every pamphlet that will be put out by the Heart or similar association.”

In this context the testimony referred to by plaintiff provides no basis for plaintiff’s contention that out of their own mouths the defendant and his witnesses showed that defendant failed to exercise proper care in treating Mr. Haase.

Another rule plagues plaintiff, namely, the “honest error of judgment” rule. Williams v. Chamberlain, Mo.Sup., 316 S.W.2d 505, 510. Suspecting that the patient had coronary insufficiency, defendant had to decide whether to immediately begin anticoagulating drug therapy. Under the evidence it appears that there is a strong dichotomy in the medical profession on the advisability of using these drugs; that many respectable authorities hold to the view that their possible side effects rule out their use in the cases of many patients. Even if defendant had been mistaken about their use in Mr. Haase’s case he was entitled to a wide range in the exercise of his judgment and discretion and could not be found guilty of negligence “unless it be shown that the course pursued was clearly against the course recognized as correct by the profession generally. As long as there is room for an honest difference of opinion among competent physicians, a physician who uses his own best judgment cannot be convicted of negligence, even though it may afterward develop that he was mistaken.” Snyder v. St. Louis Southwestern Ry. Co., 228 Mo.App. 626, 72 S.W.2d 504, 512. According to the only evidence in this case on the subject there is an honest difference of opinion about the advisability of the use of these drugs. This record reveals no evidence that defendant’s conduct ran counter to the course of treatment recognized by the profession generally, or that he made a mistake. If in retrospect (the patient having died the day after his discharge from the hospital) it might appear that a mistake was made, plaintiff still fails to make a case for lack of evidence from which a jury might conclude that defendant did not exercise his best judgment in deciding against the immediate administration of anticoagulant drugs.

No error appearing, the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur; STORCKMAN, J., not sitting when cause was submitted.


author: DONNELLY, Judge. STORCKMAN, Judge.

text:
    MARYLAND CASUALTY COMPANY, a Corporation, Appellant, and Mrs. Lucille Storm, Respondent, v. GENERAL ELECTRIC COMPANY, a Corporation, Defendant.
    No. 52606.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1967.
    Terence C. Porter, Columbia, for appellant, Welliver, Porter & Cleaveland, Columbia, of counsel.
    Koenig & Dietz, F. Daley Abels, St. Louis, for respondent.
   DONNELLY, Judge.

This is an action for apportionment under § 287.150 RSMo 1959, V.A.M.S. Respondent Lucille Storm prevailed in the trial court. Appellant Maryland Casualty Company appealed to the Kansas City Court of Appeals, which Court adopted an opinion affirming the judgment of the trial court. Upon appellant’s application, we ordered the case transferred to this Court and it will be determined here “the same as on original appeal.” Rule 84.05(h), V. A.M.R., Mo. Const, Art. V, § 10 (1945), V.A.M.S.

On February 10, 1960, David A. Storm, an electrician, was killed by reason of contact with an electrical current while working on the campus of the University of Missouri at Columbia.

The Division of Workmen’s Compensation of the State of Missouri entered an award ordering Maryland Casualty Company to pay Lucille Storm, his widow, $15,-500. This award has now been fully paid.

On May 11, 1960, Maryland Casualty Company, insurer for Storm’s employer, filed suit against General Electric Company on the theory that a switch within a high voltage transformer substation was defectively manufactured and that a malfunction caused the death. On August 5, 1960, Lucille Storm joined as plaintiff. Trial was had in April , 1963, and a judgment was entered for plaintiffs for $25,-000. On January 7, 1964, the judgment of $25,000 was paid into court for distribution between appellant and respondent.

The parties agree to the following facts: “That Terence C. Porter was employed by the Maryland Casualty Company, a corporation, on February 13, 1960, to make an investigation of the cause of death of the decedent David A. Storm, and to determine the existence of a cause of action for wrongful death; that pursuant to this investigation, Maryland Casualty Company directed Terence C. Porter to file a wrongful death action against the General Electric Company and that this was done as hereinbefore related on May 11, 1960; that thereafter in August, 1960, after various conferences between the widow Lucille Storm and the firm of Koenig, Dietz and Siebels of St. Louis, Missouri, who were representing her, she agreed, at the request of Terence C. Porter, as attorney for Maryland Casualty Company, to enter her appearance as a co-party plaintiff in this action; that thereafter Terence C. Porter continued the investigation and preparation of the case including the conduct of all discovery proceedings and trial preparation, including the employment of various expert witnesses and the preparation of a motion picture to illustrate the defect in the equipment of the defendant, General Electric Company, which caused the death of the decedent; that the actual trial of the case was conducted by Terence C. Porter pursuant to the original employment by Maryland Casualty Company as aforementioned; that the widow Lucille Storm cooperated in the prosecution of the case to the extent that she conferred with the said Terence C. Porter on occasion, both personally and by and through her attorneys, with respect to the progress of the preparation of the case and the prospects of settlement, and in addition, attended the trial and testified to the state of health of the decedent and the extent of her dependency ; that at no time did Mrs. Storm or her attorneys assist in the investigation or preparation of the case for trial.”

The amount of attorney fees and costs incident to the $25,000 recovery is not in dispute. It is agreed that the amount subject to distribution between Lucille Storm and Maryland Casualty Company is $15,-801.67.

Section 287.150, RSMo 1959, V.A.M.S., as it now exists, reads in part as follows:

“1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be sub-rogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation.

“3. Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorneys fee has been paid the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered, or the balance of the recovery may be divided between the employer and the employee or his dependents as they may agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall he paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation.”

Before 1955, the statute contained only Subsection 1. Section 287.150, RSMo 1949, V.A.M.S. The law as to apportionment thereunder was as stated in Schumacher v. Leslie, 360 Mo. 1238, 1248, 232 S.W.2d 913, 919 (1950): “Under the Missouri Act and the decisions construing it there is no double recovery, an evil to be avoided, because whoever, the employer or the employee, recovers against a third person tort-feasor holds so much of such recovery as in truth and in fact belongs to the other as an express trustee — the employee to see that the employer’s right of subrogation is protected, and the employer to see that the employee receives any surplus after his indemnification. McKenzie v. Missouri Stables, Inc., 225 Mo.App. 64, 34 S.W.2d 136, 139 [7]; Reynolds v. Grain Belt Mills Co., 229 Mo.App. 380, 78 S.W.2d 124, 130[2]; General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 446[5].”

In 1955, the Legislature added the Subsection now numbered 3. Laws of 1955, pp. 597, 598. It is evident that if apportionment should be made under Subsection 1 of the statute, Maryland Casualty Company is entitled to $15,500. The trial court ordered apportionment under Subsection 3 of the statute and held Maryland Casualty Company is entitled to $7,690.67.

We must determine what the Legislature intended by its enactment of Subsection 3. The applicable principles of statutory construction are well settled. “Where the meaning of a statute is clear there is no occasion for its construction and the courts will apply it as written. However, when the meaning is doubtful it becomes the duty of the courts to construe it. It is elementary that the primary rule to be applied in the construction of a statute is to ascertain and give effect to the legislative intent.” Foremost Dairies, Inc. v. Thomason, Mo.Sup., 384 S.W.2d 651, 659 (1964). “Repeals by implication are not favored— in order for a later statute to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand; where two acts are seemingly repugnant, they must, if possible, be so construed that the later may not operate as a repeal of the earlier one by implication; if they are not irreconcilably inconsistent, both must stand.” State ex rel. Boyd v. Rutledge, 321 Mo. 1090, 1100, 13 S.W.2d 1061, 1065 (1929).

Did the Legislature intend that the formula specified in Subsection 3 should apply if the employee or his dependents participated in the recovery only to a limited extent? We think not. Subsection 3 provides that whenever recovery is effected by the employee or his dependents, the apportionment specified shall be made. The word “effected” has been held to mean “accomplished, brought to pass, completed or produced; carried to completion, or consummated.” 28 C.J.S. Effect p. 838. Appellant, through its attorney, filed the action, prepared it for trial, and conducted the trial. Respondent, at appellant’s request, joined as plaintiff, cooperated in the prosecution of the trial, and testified at the trial. Respondent contends that she thereby “effected” the recovery. We do not agree. Respondent would have us construe “effected” to mean “influenced.” This would be contrary to the intent of the Legislature, and, as a practical matter, would abrogate by indirection the employer’s right of subrogation in Subsection 1 which the Legislature intended to preserve.

We recognize that situations will arise wherein Subsection 3 should be applied. Also, the Legislature may see fit to more explicitly state its intention in this regard. However, the formula specified in Subsection 1 should be applied in this case. We will not allow an employee or his dependents double recovery in the absence of clear intention on the part of the Legislature that we do so. The law favors a construction of a statute which avoids unjust or unreasonable results. Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 848, 253 S.W.2d 832, 835 (1953). It is significant that Subsection 1 remains a part of the statute. We will not repeal it by implication.

The judgment is reversed and the cause remanded with directions that judgment be entered for appellant in the amount of $15,500 and for respondent in the amount of $301.67.

All concur except STORCKMAN, J., who concurs in result in separate opinion filed.

OPINION CONCURRING IN RESULT

STORCKMAN, Judge.

I agree that the facts of this case call for the application of subsection 1 of § 287.150 rather than subsection 3. It is quite evident that the liability of the third party was established primarily by the efforts of the employer. Counsel retained by the employer conducted the investigation to determine whether the negligence of the third person caused the death of the employee. Employer’s counsel developed the theory of liability and rather ingeniously secured demonstrative evidence on the issue of liability which evidence apparently was quite effective. The contribution made by the dependent widow related primarily to the amount of the recovery. She joined as a party-plaintiff in the action at the request of the employer and testified concerning her husband’s health and her loss by reason of his death. While the sum of $301.67 which remains- for her from the recovery hardly seems suitable recompense for the dependent’s contribution to the endeavor, the court is not free to determine the equities of the situation but is limited to the application of the methods of distribution prescribed by § 287.150.

I cannot agree, however, with the inference of the opinion that subsection 3 is likely to permit a “double recovery” and produce unjust and unreasonable results. These statements appear unnecessary to the decision in this case and may tend to discourage the application of subsection 3 in a proper situation.

“Someone may argue that the employee has no right to this excess [of the recovery against a third person in a negligence action], having had the benefit of the compensation system; but the answer is that, as between the employee and the stranger, there has been no such give and take, no such compromises struck, as between the employee and His own employer. The employer has made substantial concessions as the price of his limited liability; the employee has given up his right against his own employer to bring damage suits. But the stranger has given up nothing, and hence has a right to claim nothing resembling the immunities that exist between employer and employee. As for the employee, he gets no windfall; what he gets is nothing more than actual restoration to himself of what he has lost because of the third person’s wrongful act.” Larson’s Workmen’s Compensation Law, Vol. 2, § 71.20, p. 167. The purpose of the subro-gation provisions of compensation laws is to achieve an equitable distribution of the proceeds of a recovery from a negligent third person. 101 C.J.S. Workmen’s Compensation § 1042, p. 622. State statutes provide a variety of procedures and formulas as “a greater incentive” and “a financial motivation” to stimulate employers and employees alike to prosecute vigorously actions to recover damages from negligent third persons. Larson’s Workmen’s Compensation Law, Vol. 2, § 74.31, p. 209. What might on the surface appear to be a “double recovery” may be intended by the legislature as a quid pro quo for more effective cooperation.

The lack of uniformity in such statutes may indicate there is no best plan for achieving an equitable result in all or a majority of situations. Since the rigid formulas for distribution under Missouri statutes afford the courts little opportunity to achieve a fair result, the provision in subsection 3 of § 287.150 that “the balance of the recovery may be divided between the employer and the employee or his dependents as they may agree” is highly recommended. It is doubtlessly being widely used at the present time else more of these controversies would reach the courts. Nevertheless, I join in the suggestion of the principal opinion that a re-examination of these statutes might be fruitful. Perhaps agreements for distribution of the proceeds of common-law actions could he reviewed as to their fairness by the Workmen’s Compensation Commission along the lines now provided by § 287.450 regarding compensation payable under the act.

Having the viewpoint expressed, I respectfully present this opinion concurring in result.


author:
HOUSER, Commissioner.
      PER CURIAM.

text:
    Harry M. GLASSBURNER and Helen L. Glassburner, Respondents, v. Joe BURTRUM and Norma Burtrum, His Wife, Appellants.
    No. 52387.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.
    As Modified on Court’s Own Motion Oct. 7, 1967.

      John R. Martin, Joplin, for respondents.
    Edward G. Farmer, Jr., Leo W. Schrader, Joplin, for appellants.
   HOUSER, Commissioner.

This is a suit to quiet title to 20 acres of land in Newton County, brought by Harry M. Glassburner and wife, purchasers at an execution sale, against Joe Burtrum, the judgment debtor, and his wife. Defendants Burtrum filed a cross-bill for improvements made on the property. The circuit court found the issues on petition and cross-bill for plaintiffs and against defendants, decreed title in plaintiffs, and denied recovery for improvements. Defendants appealed.

Respondents filed a motion to dismiss the appeal for untimely filing of the notice of appeal and failure to file a motion for new trial. This motion is overruled for the following reasons. The judgment was entered on June 17. No motion for new trial having been filed the judgment became final on July 17 (thirty days after entry of judgment). Civil Rule 82.05(a), V.A.M.R. When no motion for new trial is filed, 'a notice of appeal may be filed by leave of the trial court “at any time after the expiration of the time for filing a motion for new trial and within thirty days after entry of judgment.” Idem. The time for the filing of a motion for new trial expired July 2. The thirtieth day after the entry of judgment was July 17. The notice of appeal was filed between those two dates, on July 15. The notice of appeal, therefore, was timely filed, and the only question is whether failure to obtain leave of the trial court to file the notice of appeal requires dismissal of the appeal. We think not. Any party has an absolute right of appeal, Civil Rule 82.-04, but he should not execrise that right during the 30-day period during which the trial court retains control over its judgment, Civil Rule 75.01, without first obtaining leave. Failure to apply for leave, however, does not affect the validity of the appeal. It merely makes the filing of the notice of appeal premature. Under Civil Rule 82.05 (b) notices of appeal filed prematurely are considered as filed immediately after the time the judgment becomes final for the purpose of appeal.

It is a rule of equity, as well as in actions at law, that the filing of a motion for a new trial is a mandatory prerequisite in order to preserve for review allegations of error. Civil Rule 79.03; Adams v. Richardson, Mo.Sup., 337 S.W.2d 911. There are, however, exceptions to this rule, and this case comes within one of them. One exception is that notwithstanding no motion for a new trial has been filed the appellate court may consider the sufficiency of the evidence to support the judgment, in cases tried as provided by Civil Rule 73.01 (without a jury). Civil Rule 79.03. Appellants’ first and second points in effect challenge the sufficiency of the evidence to support the judgment and therefore we will determine the propriety of the judgment under the evidence.

On May 7, 1962 the Burtrums owned the land, which was subject to a deed of trust executed by the Burtrums in favor of Lutie Ellis. On that day Securities Investment Company procured a judgment for $197,-088.56 against the Burtrums. Execution issued on the judgment, the sheriff levied on the land in question on May 8,1962, gave notice of sale and on August 28, 1962 sold the property at public sale to the highest bidder, Harry Glassburner, for $2,100. On September 14, 1962 the sheriff executed and delivered a sheriff’s deed to the Glassburn-ers, who recorded the deed the same day. Before the execution sale Glassburner checked the records in the recorder’s office and learned that title to the property was in the name of Joe Burtrum and wife and that there was a mortgage on the property.

Meanwhile, on July 21, 1962 the trustee under the deed of trust from the Burtrums to Lutie Ellis, having previously given notice of the time and place of sale by publication in a newspaper, conducted a foreclosure sale of this same property. Bobby Joe Loyd bought in the property for $3,525. Bobby Joe Loyd was a straw party, acting for and on behalf of Joe Burtrum, Loyd’s employer. Burtrum asked Loyd to go to the sale and bid the property in for him; brought Loyd to the sale and provided the money which was paid to the sheriff. Bobby Joe Loyd had no money and no intention of buying the property for himself. Loyd disclaimed any personal interest in the property and did not pay for and did not receive the deed to the property. On July 30, 1962 the trustee executed a trustee’s deed naming Bobby Joe Loyd as grantee. This deed was never delivered to Bobby Joe Loyd, but was delivered to Joe Burtrum “for Bobby Joe Loyd” when Burtrum came to the trustee’s office and picked up the trustee’s deed, abstract, note, deed of trust and other papers relating to the title. At that time Burtrum paid the trustee the purchase price. Bobby Joe Loyd was not present. Thereafter Burtrum caused Bobby Joe Loyd and his wife to execute a quitclaim deed to the Burtrums, and on December 3, 1962, five minutes after the trustee’s deed to Bobby Joe Loyd was recorded, the quitclaim deed from Bobby Joe Loyd to the Bur-trums was recorded.

Three months after the foreclosure sale Glassburner learned that Burtrum claimed an interest in the property when he went to Burtrum to try to purchase the abstract of title. This suit was then filed. After the suit was filed Glassburner learned that the property was being improved (by bulldozing the land). He did not protest the making of the improvements. Most of the work on the property was done after this suit was filed.

The first question is whether Glass-burner, the execution purchaser, acquired any title to the land in question by his purchase. The Burtrums claim that a sheriff’s deed on execution operates only on the existing title and can convey only such interest as the judgment debtor had at the time of sale; that the Burtrums had no title to the property at the time of the execution sale because their interest had been wiped out by the foreclosure sale of July 21, which they say extinguished the Burtrums’ right, title and interest in the property; that Glassburner took nothing by the execution sale, and that the Burtrums now own the property by acquisition from the purchaser at the foreclosure sale.

The difficulty with appellants’ theory is that in truth, fact and law the Burtrums were the actual owners of the property at the time of the execution sale. Glassburner, a purchaser at an execution sale, was bound to take notice of facts exhibited by the public record. .He actually examined the record, and found the title in the Burtrums (the trustee’s deed to Billy Joe Loyd had not been recorded), and ascertained that there was a deed of trust on the property. In the case of a bona fide sale on foreclosure to a third party Glass-burner would have taken subject to the lien of the deed of trust. The sale to the mortgagor’s straw party, however, was not a bona fide sale to a third party but in effect was a sale in which the mortgagors were the purchasers. The parties went through the form of a foreclosure sale. Bobby Joe Loyd purported to buy the property but in fact it was a sale to a straw party who had acted at the beck and call of Joe Burtrum; one who purchased the property with Joe Burtrum’s money for Joe Burtrum, without any intention of purchasing for himself. It was a sham transaction having the appearance of a bona fide foreclosure sale, amounting in reality to nothing but a sale to the Burtrums through their alter ego; a sale to themselves. The effect of the foreclosure was simply to clear the property of the debt, leaving the straw party holding the bare legal title “for the sole use and benefit of” the Burtrums, Lambert v. Clark, Mo. Sup., 275 S.W.2d 240, and the mortgagors, the Burtrums, holding the equitable or beneficial title. Therefore the Burtrums were, the real or actual owners (as well as the record owners) when the execution sale was held on August 28. The sheriff’s deed of September 14 conveyed to the Glassburners the bare legal title of Bobby Joe Loyd and the equitable and beneficial title of the Burtrums. The circuit court properly found the issues on the petition for plaintiffs and that plaintiffs own the land in fee simple.

With reference to the cross-petition, the bulldozing and clearing of the land was done by the Burtrums at a time when they knew that the property had been sold under an execution sale, and after the service of summons in this case. They were charged with notice of plaintiffs’ title and under the circumstances cannot be said to have made the improvements in good faith. The court properly ruled against appellants on their cross-petition.

Appellants make the further point that the sheriff’s deed conveying title to the Glassburners “was defective on its face” but in stating this point appellants give no reason why it is defective and for that reason we would be justified in refusing to consider the point. We find in the argument portion of their brief appellants’ statement that the deed affirmatively recites that the execution sale was held in Jasper County when in fact the sale took place in Newton County, but this recital does not prove the fact. Although the deed was introduced and admitted in evidence it does not appear in the transcript and has not been filed here as an exhibit. At no point in the trial did appellants raise any question about the validity of the sheriff’s deed. In this situation the exhibits will be taken as favorable to the trial court’s ruling and as unfavorable to appellants. Lange v. Baker, Mo.App., 377 S.W.2d 5, 7; Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 373.

Appellants make the further point that the court erred in refusing testimony as to the value of the land, but in view of the fact that no motion for new. trial was filed, this point has not been preserved for appellate review.

No error appearing, the judgment is affirmed.

WELBORN and HIGGINS, CC, concur.

PER CURIAM.

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.


author: WELBORN, Commissioner. PER CURIAM:

text:
    Jeremiah B. ANDERSON and Amy A. Anderson, Plaintiffs-Appellants, v. The BOONE COUNTY ABSTRACT COMPANY, a Corporation, Defendant-Respondent.
    No. 52542.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Motion to Transfer to Court en Banc or for Rehearing Denied Sept. 11, 1967.
    Carl F. Sapp, Scott Orr, Sapp, Woods & Dannov, Columbia, for appellants.
    Terence C. Porter, Columbia, Welliver, Porter & Cleaveland, Columbia, of counsel, for respondent.
   WELBORN, Commissioner.

This is an appeal from a judgment of dismissal of plaintiffs’ petition seeking damages from defendant abstract company, for negligent certification of an abstract, obtained from defendant by a predecessor in title of plaintiffs and upon which plaintiffs allegedly relied in purchasing property in the City of Columbia. Recovery was sought for damages totaling $25,000.

Plaintiffs’ petition alleged that by warranty deed, dated May 21, 1962, Odus H. Powell and Francis R. Powell conveyed to Al H. Wulff and Bernice Wulff and William J. Wulff and Helen R. Wulff Lots 24 and 25 of McNab Subdivision in the City of Columbia. By deed dated November 21, 1962, the Wulffs conveyed the property to Frank H. and Harriette S. Fristoe by warranty deed. By warranty deed, dated July 1, 1963, the Fristoes conveyed a one-half interest in the property to plaintiffs.

The petition further alleged that plaintiffs purchased the property for the purpose of developing it for commercial and business purposes, subject to applicable zoning regulations; that, subsequent to their purchase, plaintiffs discovered that the property was subject to a duly recorded restrictive agreement entered into by the Powells on September 24, 1956, whereby the use of the land for commercial purposes was prohibited “unless zoned by ordinance for a planned shopping center; * * *.”

The petition further alleged that, on January 5, 1962, the defendant abstract company had, for value received, prepared a certified abstract for the Powells which purported to include all matters of record affecting the real estate here involved, but that the restrictive covenant referred to above was not included in the abstract.

Plaintiffs alleged that the defendant knew, should have known or could reasonably foresee that the abstract which the Powells obtained was to be presented to a purchaser or purchasers for examination for sale of the real estate and that the defendant “could reasonably foresee that the abstract with the aforesaid certificate would be relied upon by subsequent purchasers of the real estate.” The petition alleges that plaintiffs did rely upon the abstract and certificate and were willing, after the examination thereof, to accept the deed from the Fristoes, “believing said real estate could be used for commercial purposes.”

The petition alleged that defendant was negligent in the preparation of the abstract and certificate and that the defendant carelessly and negligently failed to include the restrictive agreement in the abstract; that, as a direct and proximate result of such negligence of defendant, plaintiffs were damaged in the sum of $25,000. Of the damages, $18,000 was alleged to arise by reason of the differences in value of $25,-000 of the land without the restriction and $7,000 with the restriction. The plaintiffs also alleged a loss of $7,000 for costs, charges and expenses incurred in attempting to develop the real estate for business purposes prior to discovery of the restrictive covenant.

Defendant moved to dismiss the petition on numerous grounds, including the ground that plaintiffs were in no way in privity of contract with the defendant and are, therefore, precluded from claiming any rights in connection with the certification. The trial court sustained defendant’s motion without specifying the grounds therefor. On this appeal, appellants have 'briefed only the privity question and, although defendant has briefed other grounds on which it claims the action of the trial court may be sustained, we will look first to the issue briefed by appellants.

Plaintiffs-appellants state their position in their brief as follows:

“Plaintiffs ask this Court to overrule the case of Schade v. Gehner, 133 Mo. 252, 34 S.W. 576 (1896), which held that privity was required before there could be any recovery of damages for the negligent certification of abstracts of title. Plaintiffs ask that the law in Missouri be declared to be that the maker of a negligent misrepresentation relied on by a third person without privity between the parties should be liable for damages if the relying and injured party is one of the class of persons for whose guidance the information was supplied. Restatement, Torts, Section 552 (2d Ed.1938). Plaintiffs also ask the Court to declare that this class be limited by the foreseeability test and by the applicable statutes of limitation.”

In Schade v. Gehner, the widow of a purchaser of real estate who had employed a title examiner whose opinion on the validity of a title turned out to be erroneous was denied recovery on a claim charging negligence against the examiner.

The court stated: “Conceding, then, the defendant’s negligence, and that a right of action accrued therefor, * * * to whom did such right of action accrue? That it accrued to George Schade, with whom the contract of employment was made, is matter of course. That a right of action could not accrue to any one else who was not privy to the contract, although damage may have resulted to such other person by reason of the negligence, is the uniform doctrine of the authorities.” 34 S.W. 577. Among the Missouri authorities cited were Zweigardt v. Birdseye, 57 Mo.App. 462, and Gordon v. Livingston, 12 Mo.App. 267. In Zweigardt, absence of privity was held to bar an action by a purchaser for an abstracter’s negligence in preparing an abstract for the purchaser’s vendor. In that case, the court stated that the rule applied by it “applies with like force even where the abstractor or examiner has knowledge that the certificate as to title is to be used in a sale or loan to advise the purchaser or loanor.” 57 Mo.App. 467. In Gordon, the court held that a grain inspector’s liability for a false certificate, given negligently, but not fraudulently, did not extend to the purchaser of the grain who bought on the faith of the certificate but with whom the inspector had not contracted.

Appellants contend that, since those decisions of- the prior century, the “assault upon the citadel of privity * * * [has proceeded] apace” (Cardozo, J., in Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441, 445, 74 A.L.R. 1139) and that the time has arrived for the limitation or abrogation of the protection against liability which the doctrine of privity has afforded abstracters.

The plaintiffs acknowledge that breaches in the privity defense as applied to abstrac-ters have been minor. Plaintiffs accept the requirement of privity as the general rule. 1 C.J.S. Abstracts of Title § 11(c), pp. 393-396; 1 Am.Jur.2d, Abstracts of Title, §§ 15 and 16, pp. 240-242; Annotations, 34 A.L.R. 67, 68 A.L.R. 375; Roady, “Professional Liability of Abstracters,” 12 Vanderbilt Law Rev. 783. The major exceptions to the rule have lesulted from abstracters’ licensing laws in several states. See Eckhardt, “Abstracters’ Licensing Laws,” 28 Mo. Law Rev. 1 (1963). In the following states, recovery on the bond required as a condition for licensing is not limited to those in privity with the abstracter: Idaho (Idaho Code, § 54-101; see Merrill v. Fremont Abstract Co., 39 Idaho 238, 227 P. 34) ; Kansas (K.S.A. § 58-2802); Montana (Rev.Code, 1947, § 66-2113); Nebraska (Rev.Stat.1943, § 76-501; see Gate City Abstract Co. v. Post, 55 Neb. 742, 76 N.W. 471); New Mexico (New Mexico Stat. Ann., § 70-2-1; see Gallegos v. Ortiz, 28 N.M. 598, 216 P. 502); Oklahoma (Okla.Stat.Ann., Title 1, § 1; see Sackett v. Rose, 55 Okl. 398, 154 P. 1177, L.R.A. 1916 D, 820); South Dakota (S.D.Code, § 1.0107; see Goldberg v. Sisseton Loan & Title Co., 24 S.D. 49, 123 N.W. 266); Utah (Utah Code Ann. § 1-1-12), and Wyoming (Wyo.Stat., § 33-12). In Oregon, a statute eliminates the defense of privity unless the abstracter’s certificate is limited to a named person. Or.Rev.Stat. § 30.750. Aside from statutes, the privity requirement has been held satisfied where the contract with the abstracter was by an agent for an undisclosed owner (Young v. Lohr, 118 Iowa 624, 92 N.W. 684), or where the purchaser obtains a recertification of the abstract. Beckovsky v. Burton Abstract & Title Co., 208 Mich. 224, 175 N.W. 235, 178 N.W. 238.

The most significant cases from appellants’ standpoint are those in which recovery has been allowed by a purchaser or lender who the abstracter knew was to make use of the abstract ordered by the vendor or borrower. A number of such cases have permitted action by a particular person known to the abstracter to be the person to whom the abstract will be exhibited. Dickie v. Nashville Abstract Co., 89 Tenn. 431, 14 S.W. 896; Denton v. Nashville Title Co., 112 Tenn. 320, 79 S.W. 799; Anderson v. Spriestersbach et ux., 69 Wash. 393, 125 P. 166, 42 L.R.A.,N.S., 176; Brown v. Sims, 22 Ind.App. 317, 53 N.E. 779; Shine v. Nash Abstract & Investment Co., 217 Ala. 498, 117 So. 47; Western Loan & Savings Co. v. Silver Bow Abstract Co., 31 Mont. 448, 78 P. 774. “While the existence of a custom for a vendor or borrower to procure an abstract for the use of prospective purchasers or lenders, and of such purchaser or lender to rely thereon, has been urged in a number of cases as a ground for holding the abstracter liable to such person, generally the courts have declined to give effect to such custom as a basis for holding an abstracter liable to any person other than his employer who suffers damage by reason of negligent work in preparing the abstract.” 1 Am.Jur.2d, op. cit., § 16, p. 242, citing Thomas v. Guarantee Title & Trust Co., 81 Ohio St. 432, 91 N.E. 183, 26 L.R.A.,N.S., 1210; Peterson v. Gales, 191 Wis. 137, 210 N.W. 407, 47 A.L.R. 956.

With little support for their position to be found in cases involving abstracters, appellants have turned to other fields in which the privity doctrine has recently come under attack. Strong reliance is placed upon an opinion adopted by Division Number One of this court in the case of Motley v. Mercantile Trust Co., No. 49879, in November, 1965. Some eight pages of appellants’ brief consist of quotation verbatim of that opinion. While the cause was pending upon a subsequent transfer to the court en banc, the parties stipulated that the opinion should be vacated and the judgment of the trial court, against plaintiffs, should be affirmed. Consequently, the opinion which was written does not stand as an opinion of this court, although the existence of the opinion was subsequently noted by the Eighth Circuit Court of Appeals in Lesser v. William Holliday Cord Associates, Inc., 349 F.2d 490, 492, footnote 3, and was commented upon in a note, “Liability of a Testing Company to Third Parties,” W.U.L.Q., Vol. 1964, pp. 77,83-85.

In view of the attention appellants have accorded the Motley opinion, we must, we feel, consider the reasoning there embodied, although the opinion, of course, does not have the status of precedent in any way here controlling. The petition in Motley alleged that the defendant trust company had “prepared or procured the preparation of a will” for the decedent Freeh under which plaintiffs were beneficiaries ; that the trust company “held, controlled and managed” as a fiduciary the major portion of the decedent’s estate; that, knowing the decedent’s wishes for the distribution of her estate according to her will, the trust company negligently and carelessly failed to advise the decedent that action was required to subject the trust property to the terms of the will, and that as a result, upon the death of the decedent, there were no funds available for specific bequests under the will to certain plaintiffs and a residuary beneficiary plaintiff failed to receive some $$75,000 to which she would have been entitled had the trust property passed according to the will.

The trial court dismissed the petition and one issue presented upon the appeal was that of whether or not the absence of privity between the plaintiffs and the trust company was a bar to the action. Upon an extensive review of the history of the privity doctrine, its application in Missouri and elsewhere and recent inroads upon the doctrine, the opinion concluded that, if the “conventional supporting reasons” for the privity rule did not exist in the case, privity should not be required. The two supporting reasons for the rule, as found in Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402, and cases following the doctrine there laid down were the danger of unlimited liability and second the restriction upon the right to contract which might arise if it were burdened with obligations and liabilities which the parties had not contracted for. The opinion pointed out that, under plaintiffs’ petition, liability was limited to persons whose identity was known to the trust company by reason of the decedent’s direction that they be named as beneficiaries under his will.

The defendant argued that to hold it liable under the facts alleged might open up areas of unlimited liability to others in its position and to professional advisors, generally, including atorneys. In answer to this contention, the opinion stated:

“[A] determination that the alleged facts make a case of liability against this trust company under these particular circumstances does not constitute a universal rule opening up unlimited liability in all kinds of cases involving the giving of opinions and advice in matters of business. Liability would depend upon circumstances and would be circumscribed within carefully defined limits.

“[A]ny extension of the limits of liability in this field must be done on a case-to-case basis, with a careful definition of the limits of liability, depending upon the differing conditions and circumstances to be found in individual cases.”

The opinion took note of the distinction drawn by Judge Cardozo in the cases of Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425, and Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139. In Glanzer, the court declined to require privity in an action against a weigher by a purchaser of beans who purchased on the basis of a negligently erroneous weight certificate, obtained by the seller. In Ultramares, the court refused to hold accountants who negligently certified a corporate balance sheet liable to a third person who subsequently loaned the corporation money on the basis of the balance sheet. The Motley opinion pointed out that in Glanzer the buyer was the one person who would be affected by the weigher’s negligence, whereas in Ultramares, the court felt that to permit recovery against the accountants might expose them “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.” 174 N.E. 444.

Appellants here urge that this case is more nearly akin to Glanzer because liability would “be limited to a foreseeable class which consists of actual purchasers or lenders who rely on the abstract within the five year period of the statute of limitations.” However, this case would extend liability to persons not dealing with the party with whom the abstracter dealt. It would widen the circle of liability to extend it to those who are in many cases actually aware of the existing limits of liability of the abstracter and who, by their own choice from economic considerations, neglect to bring themselves within the limits of such liability. This is not a case in which the intended beneficiaries were in no position to take action for their own protection.

Application of the privity doctrine in abstracter cases has frequently been criticized. Trusler, Extension of Liability of Abstracters, Í8 Mich.Law.Rev. 127 (1919); Phillips, Liability of Abstracters, 62 Am.L. Rev. 868, 879 (1928); Eckhardt, op. cit, p. 23; Prosser on Torts, 3rd ed., p. 723. If, as suggested in Motley, the proper approach to the privity question is on a case-to-case basis, with policy consideration the decisive factor, we fail to see any major policy which would be furthered by elimination of the requirement in this case. The plaintiffs dealt with neither the abstracter nor the purchaser of the abstract. This is a case in which the purchaser of the abstract should have known of the noninclusion of the restrictive covenant in the abstract because the abstract purchaser was a party to the omitted instrument. Blame cannot be placed solely upon the abstracter. Nor is there involved activity which might constitute violation of any law of this state by the abstracter, a consideration accorded weight in Motley. Although not attaching major significance to the fact, we note that the legislature, the primary policy-making branch of our government, has declined, when the opportunity was presented, to eliminate the privity requirement for abstracters’ operations. Senate Bill No. 71 of the Sixty-third Missouri General Assembly (1945) would have enacted an abstracters’ licensing law, similar to those above referred to. § 13 of that bill would have required a licensed abstracter to deposit a bond “conditioned for the payment by the person so licensed of any and all actual damages that may be sustained by, or accrue to, any person or body politic by reason of * * * any error, deficiency or mistake in any abstract made by such person so licensed.” The bill failed of enactment, as did a similar measure (House Bill No. 184 of the Sixty-fourth General Assembly (1947). We find no further efforts to extend the liability of abstracters by legislative action. The most recent, and unsuccessful, proposal for abstracters’ licensing, House Bill No. 548 of the Sixty-ninth General Assembly (1957), contained no requirement of a bond. The subject has apparently not aroused sufficient attention to evoke further legislative interest.

Even in states which have relaxed the privity requirement, the courts have refused to expand liability to a case such as this. In Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358, the court, in circumstances comparable in some respects to those presented in Motley, supra, relaxed the requirement of privity to permit an action by the intended beneficiaries against an unauthorized practitioner who had negligently prepared a will. However, subsequently, in Hawkins v. Oakland Title Insurance & Guaranty Co., 165 Cal.App.2d 116, 331 P.2d 742, the court refused to extend the liability of an abstracter to a subsequent purchaser of the property involved.

The Tennessee decisions, above referred to, have permitted the party to whom the abstract was furnished by the seller to recover against the abstracter. However, in Equitable Building & Loan Association v. Bank of Commerce & Trust Co., 118 Tenn. 678, 102 S.W. 901, the abstract was obtained by the husband of the owner. The court refused to extend the liability of the abstracter to a lender to whom the owner subsequently displayed the abstract.

More recently, in Howell v. Betts, 211 Tenn. 134, 362 S.W.2d 924, the Tennessee Supreme Court declined to extend the holding of Dickie and Denton, supra, to a surveyor, whose negligent survey in 1934 was relied upon in 1958 by subsequent purchasers of the surveyed property.

If, as appellants apparently view this cause of action, (this case is one for damages for negligent performance of a contractual duty, we conclude that lack of privity between the appellants and the respondent is a bar to the action.

However, appellants have advanced the further suggestion that their action be considered as one for negligent misrepresentation, as defined in § 552 of the Restatement of Torts. § 552 states:

“One who in the course of his business or profession supplies information for the guidance of others in their business transactions is subject to liability for harm caused to them by their reliance upon the information if (a) he fails to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting, and (b) the harm is suffered (i) by the person or one of the class of persons for whose guidance the information was supplied, and (ii) because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct or in a transaction substantially identical therewith.”

In Lesser et al. v. William Holliday Cord Associates, Inc., 349 F.2d 490, the Eighth Circuit Court of Appeals discussed whether or not Missouri recognizes a right of action for negligent misrepresentation resulting in financial loss in a business transaction. In that case, an insurance agent had assured a contractor that he could provide a performance bond for a potential subcontractor. Relying on such assurance, the subcontract was let, but the performance bond not provided. When the subcontractor failed to fulfill his contract, the contractor sued the insurance agent, charging that the representation that a bond would be provided had been negligently made. From the Eighth Circuit opinion, it appears that the district court had concluded that, although no Missouri case had passed directly on the matter, the Missouri courts would, if called upon, accept the Restatement as the law of this state. However, the circuit court of appeals merely assumed that Missouri would do so and concluded that the plaintiff had failed to relate his damages to the allegedly false misrepresentation.

Appellants also cite Texas Tunneling Co. v. City of Chattanooga et al., E.D.Tenn., 204 F.Supp. 821. That case involved an action by a contractor against an engineering firm employed by the city to make test borings for the project under contract. The contractor alleged that the engineers had negligently omitted from their report certain information of significance to the contractor, with the result that the performance of the contract required a much longer time than the contractor had anticipated. The judge of the district court discussed at length the right of the plaintiff to maintain the action for negligent misrepresentation. Again, as in Lesser, the question was whether state law recognized such a right of action. The court referred to the Tennessee abstracter cases above mentioned. The court found language in Dickie which, in the court’s opinion, warranted “recognition of a common law duty of care in representation, without reference to fictions of contract: * * 204 F.Supp. 829. As did the district court in Lesser, the district judge in Texas Tunneling concluded that Tennessee courts, if called upon to answer the question, would accept the Restatement view of the right of action.

The court then concluded that privity was not “a prerequisite to the existence of a duty under the tort law of negligence” (204 F.Supp. 832) and that third persons acting in reliance upon negligent misrepresentations have a cause of action if they are within the class of persons whose reliance upon and injury by the misrepresentations can reasonably be foreseen. The plaintiff in the case at hand was held to fall within such class.

On appeal, the Sixth Circuit Court of Appeals, 329 F.2d 402, took into consideration the Tennessee Supreme Court’s decision, subsequent to the opinion of the district court, in Howell v. Betts, supra, and concluded that Tennessee had not extended its law to encompass a cause of action for negligent misrepresentation in the situation before the court. The court said that it was not “persuaded by Restatement of Torts § 552” (329 F.2d 410) that it should extend the law of fraud and deceit to such a case.

Again, assuming without deciding that a cause of action for negligent misrepresentation may be maintained by third parties who act in reliance thereon, the question arises as to just what third parties may sue. Clearly, under the Restatement, reliance alone is not sufficient to bring one within the protected class. The harm must have been suffered “(i) by the person or one of the class of persons for whose guidance the information was supplied, and (ii) because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct or in a transaction substantially identical therewith.”

The rule laid down by the Restatement has been described as sound but leaving a major problem unanswered — “where are the boundaries of the class of persons to whom a duty of due care is extended when information is supplied for their guidance ?” Comment, “Liability of a Testing Company to Third Parties,” W.U.L.Q., Vol. 1964, pp. 77, 78.

As we view the comment to the Restatement, it appears that liability is to be limited to persons dealing with the employer of the supplier of the information. In Hawkins v. Title Ins. Co., supra, the California court cited § 552, but declined to include subsequent purchasers within the protected class. The Tennessee court in Howell v. Betts, supra, also cited § 552, but declined to include subsequent purchasers within the protected class.

In an article, “Misrepresentation and Third Persons.” 19 Vanderbilt Law Rev. 231, Professor Prosser examined the cases in which liability for intentional or negligent misrepresentation had been held to extend to third persons relying thereon. According to him, the line definitely has been drawn at cases where the plaintiff is unidentified and the defendant has no special reason to expect that he may act in reliance. “The defendant may well be aware that his representation is capable of being passed on to others, and that at some subsequent date it may come into the hands of someone who will rely on it, act upon it, and suffer loss if it is false. But this amounts to nothing more than general foreseeability of transmission to others which is inseparable from the human word. In the face of the entirely indeterminate extent, magnitude and duration of the liability, the courts have always drawn back from its imposition.” Op. cit., 251-252. This case is beyond the line which has been so drawn and we perceive no valid reason for expanding the limitation of liability to encompass this case.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by WELBORN, G, is adopted as the opinion of the Court.

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.