author: STONE, Presiding Judge.

text:
    R. H. CLARKSON, Plaintiff-Respondent, v. MFA MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 8579.
    Springfield Court of Appeals. Missouri.
    March 3, 1967.

      Marvin Motley, Branson, for defendant-appellant.
    Neale, Newman, Bradshaw, Freeman & Neale, Warren S. Stafford, Jerry L. Red-fern, Springfield, A. H. Blunk, Forsyth, for plaintiff-respondent.
   STONE, Presiding Judge.

In this court-tried action at law, defendant MFA Mutual Insurance Company appeals from an adverse judgment in the sum of $1,000, that being the limit of defendant’s liability under medical payments coverage afforded by its policy issued to plaintiff R. H. Clarkson of Protem, Taney County, Missouri. Plaintiff’s recovery was for medical expenses admittedly incurred by him, as the stepfather of Gaila Sue Nave, an unmarried minor then sixteen years seven months of age, in treatment of bodily injuries sustained by her on July 27, 1963, when an automobile in which she was riding as a passenger ran off Highway 76A in Taney County and overturned. Defendant’s obligation under its policy was to “pay all reasonable expenses incurred within one year after date of accident for necessary medical * * * services * * * to or for the named insured [plaintiff] and each relative who sustains bodily injury caused by accident, while occupying or through being struck by an automobile * * The policy defined “relative” as meaning “the spouse of the named insured and any relative of the named insured or spouse who is a resident of and actually living in the same household as the named insured,” the italicized phrase being hereinafter referred to as the policy definition. (All emphasis herein is ours.) The sole issue is as to whether or not Gaila Sue was, at the time of the aforesaid accident, a “relative” within the contemplation and meaning of the policy definition.

Prior to May 27, 1963, Gaila Sue resided with her stepfather, mother and half-brother in the family home at Protem; and, during the 1962-63 school term, she completed the Junior year in high school at Forsyth, the county seat of Taney County. After the close of that school year, to wit, on May 27, she went to work as a waitress in Captain Bill’s restaurant at Rockaway Beach, a summer resort community on Lake Taneycomo in Taney County which is about twenty-five miles from Protem. The restaurant was open seven days each week and long hours each day, from 7 A.M. until as late as 3 A.M.; and Gaila Sue’s hours of employment were indefinite, irregular and sometimes long. As she explained, her employer “told us [Gaila Sue and seven other waitresses]- the night before what time to come in the next day.” “If I went on in the morning, I worked from seven to four, and sometimes I came back in at night and worked from six to nine and — or I could work from twelve to nine or later or two to eleven.” “Sixteen [hours] was the most I ever worked.” “As a part of [their] employment,” the waitresses “were furnished” rooms in a building behind the restaurant and also their meals. They were not required to stay overnight in the rooms so furnished; but, as Gaila Sue pointed out, “it was more convenient” and all of them did. Furthermore, Gaila Sue did not drive and had no automobile. In these circumstances, she was compelled to bring some clothing with her, “uniforms, shorts and blouses and swimming suits and a couple of dresses”; and she did her own laundry. Having neither time nor conveyance to make such trips, she did not go home during the two-month period of her employment prior to the accident on July 27, 1963. However, she corresponded with her mother and a girl friend, and her stepfather and mother visited her at Rockaway Beach some six or seven times.

Defendant asserts that “the terms of the policy * * * are clear and unambiguous” and that the undisputed evidence “conclusively shows” that, at the time of the accident on July 27, 1963, she was not “a resident of” the same household as her stepfather but “was actually living at Rock-away Beach, Missouri.” On the other hand, plaintiff insists that the policy definition is ambiguous, i. e., "susceptible of interpretation in opposite ways” [Leggett v. Missouri State Life Ins. Co., Mo. (banc), 342 S.W.2d 833, 852(13); J. E. Blank, Inc. v. Lennox Land Co., 351 Mo. 932, 957, 174 S.W.2d 862, 868], and that Gaila Sue, an unemancipated 16-year-old high school student “on a temporary sojourn from her home during the summer school vacation,” remained a “relative” within the policy definition.

Is the policy definition ambiguous? In considering this question, we assume arguendo that the policy definition might be susceptible of the interpretation placed upon it by defendant, which is, in substance and effect, that Gaila Sue remained “a resident of and actually living in the same household" as her stepfather only so long as she was physically and corporeally present there and that she lost that status when she went to Rockaway Beach even though she intended to abide there for only a limited time and a specific purpose, to wit, to work as a waitress during the summer vacation period between school years. However, if the policy definition also is reasonably susceptible of a contrary interpretation, then the judgment nisi must be affirmed. For nothing in the field of insurance law is more conclusively settled than the principle that, where there is reasonable doubt or uncertainty as to the meaning of language used in an insurance policy, the interpretation most favorable to the insured will be adopted and the provisions avoiding, limiting or cutting down coverage or liability will be construed most strongly against the insurer.

Defendant says that the policy definition imposes conjunctive requirements that a relative must be not only (1) “a resident of” the same household as the named insured but also (2) “actually living in” that household. However, this apparent duality of requirement is one of language and grammar only, in that, as numerous authorities point out and opposing counsel in the instant case agree, the terms “reside” and “live” are synonymous. The former may be “more formal” than the latter [Luvall v. Luvall, 228 Ky. 577, 15 S.W.2d 433], but the conjunctive use of both terms in the policy definition is simply repetitive and cumulative and adds nothing in meaning or effect. So, “a resident of and actually living in” is the equivalent, in meaning and significance, of “actually residing and living in” or, more simply put, of either “actually residing in” or “actually living in.”

Literally hundreds of cases have dealt with the meaning of “reside” or “live.” One bold, hardy explorer in this judicial jungle years ago listed more than one hundred reported decisions on each side of the question as to whether “residence” and “domicile” are synonymous, with Missouri cases cited in each list. Kennan on Residence and Domicile (1934), § 10, pp. 22-27. Our Supreme Court, en banc, has observed that “[t]he words ‘residence,’ ‘place of abode’ and ‘domicile’ have many meanings in different connections * * * ” [In re Duren, 355 Mo. 1222, 1232, 200 S.W.2d 343, 349-350, 170 A.L.R. 391]; and, more recently this court, per our departed brother, Ruarle, J., in eschewing any attempt to define “residence,” graphically likened that word unto “a slippery eel.” State v. Tustin, Mo.App., 322 S.W.2d 179, 180. Our present exploration convinces us that the “eel” has undergone no metamorphosis. In fine, we must regard the terms “reside,” “resident” and “residence” as ambiguous, elastic and relative, and the synonymous terms “live” and “living” as afflicted with the same frailties. Clark v. Industrial Accident Com’n. of Cal., 129 Cal.App. 536, 19 P.2d 44, 46.

Although the instant appeal presents no need for us to essay definition of any of the foregoing terms, a task from which others less timorous than we have stood aloof, certain relevant judicial and statutory pronouncements should be noted here. At common law, the terms “domicile” and “residence” or “resident” were used interchangeably and were treated as being synonymous [State ex rel. Kelly v. Shepperd, 218 Mo. 656, 666, 117 S.W. 1169, 1171-1172 (2); State ex rel. Stoffey v. La Driere, Mo.App., 273 S.W.2d 776, 781(13)], and “residence” and “resident” are frequently, although not always, used in that sense now. Phelps v. Phelps, 241 Mo.App. 1202, 1209, 246 S.W.2d 838, 844; State upon Inf. of Reardon v. Mueller, Mo.App., 388 S.W.2d 53, 58(8). But in whatever context the latter terms are used, they almost invariably imply and connote “something of permanence or continuity at least for an indefinite period, to the exclusion of another contemporaneous residence” [In re Duren, supra, 355 Mo. at 1232, 200 S.W.2d at 350], that is, “intended permanency * * * not in the sense that the residence must never be changed, but in the sense that there is no intention to change it.” McDowell v. Friedman Bros. Shoe Co., 135 Mo.App. 276, 283, 115 S.W. 1028, 1031. In this connection, we note also that our General Assembly has declared that “[a]s used in the statutory laws of this state * * * ‘[p]lace of residence’ means the place where the family of any person permanently resides in this state, and the place where any person having no family generally lodges” [V.A.M.S. § 1.020 (9)], and that the St. Louis Court of Appeals has pointed out that this statutory definition “merely codifies the presumption •of law that would in any event exist without it.” State upon Inf. of Reardon, supra, 388 S.W.2d at 58. Although not entirely so [State upon Inf. of Reardon, supra, 388 S. W.2d at 60(10)], “[residence is largely a matter of intention” [In re Lankford’s Estate, 272 Mo. 1, 9, 197 S.W. 147, 148(2); In re Ozias’ Estate, Mo.App., 29 S.W.2d 240, 243], hence an established residence is not lost by temporary absence therefrom, either on business or on pleasure, with no intention to abandon that residence or acquire another.

We have not overlooked the requirement of the policy definition that the “relative” be "actually” living or residing in the insured’s household. “Actually” means “in fact; really.” Webster’s New International Dictionary (2nd Ed.), p. 28. See 1 C.J.S. Actually, p. 1445. Its “natural function * * * is to emphasize the dominant thought of the word or phrase with which it is coupled. [Citing cases] It imports reality as distinguished from form, method, hypothesis, conjecture, or surmise. It is the antonym of constructive, speculative, nominal, fictitious or feigned. ‘Actually resided, therefore, means a real residence, a residence existing in truth.” City of Marlborough v. City of Lynn, 275 Mass. 394, 176 N.E. 214, 215. “ ‘Actual residence’ * * * means no more than residence— true, substantial and real; not fictitious, nominal, or pretended.” United States v. Anderson, D.C.Mont., 238 F. 648, 649. In various settings, “actual residence” is treated as the equivalent of “domicile” [Connolly v. Connolly, 33 S.D. 346, 146 N.W. 581(1); Bechtel v. Bechtel, 101 Minn. 511, 112 N.W. 883(1), 12 L.R.A.(N.S.) 1100] or “‘domicile or permanent residence’ ” [State ex rel. Schoonover v. Crabill, 136 Neb. 819, 287 N.W. 669, 672(6)] or “actual permanent residence.” Littell v. Millemon, 154 Kan. 669, 121 P.2d 233, 237(2). But, as with the simple term “residence,” in whatever context the compound term “actual residence” is employed it almost invariably implies and connotes “permanency in the sense of the establishment of a usual place of abode * * Hughes v. Lucker, 233 Minn. 207, 46 N.W.2d 497, 499(4). See again City of Marlborough, supra, 176 N.E. at 215. And, as it is generally understood that “residence” involves and demands more than mere physical presence [Routt v. Barrett, 396 Ill. 322, 71 N.E.2d 660, 671 (21, 22)], so it is that “‘[a]ctual residence’ is not synonymous with physical presence” [Toy Teung Kwong v. Acheson, D.C.Cal., 97 F.Supp. 745, 747—see Deming v. United States ex rel. Ward, 59 App.D.C. 188, 37 F.2d 818, 820] and is not to be equated with a mere temporary abode. Chapman v. Davis, 233 Minn. 62, 45 N.W.2d 822, 826 (11) ; Hughes, supra, 46 N.W.2d at 499(4). And, even as a “residence” is not lost by temporary absence therefrom with no intention to abandon it or acquire another [see cases cited marginally in note 5], neither is an “actual residence” so terminated. Chapman, supra, 45 N.W.2d at 826(11); Hughes, supra, 46 N.W.2d at 500(6); United States v. Anderson, supra, 238 F. at 649(2).

Instant defendant argues that, since the evidence showed that Gaila Sue “was physically present in Rockaway Beach” and “stayed, lodged, ate her meals, sojourned and abided” there during the two-month period from May 27 to July 27, 1963, she was not during that period “a resident of and actually living’/ in her stepfather’s household at Protem. However, as the hereinbefore-cited cases demonstrate, that was not necessarily so. There is no doubt but that, prior to May 27, 1963, her actual residence was in her stepfather’s household; and it is fairly inferable from the record as a whole that, after a sixteen-day period of hospitalization for injuries suffered in the accident of July 27, she returned to the family home at Protem and lived there during the 1963-64 school term while she completed her Senior year in Forsyth high school. In short, the record reflects no act or utterance on the part of Gaila Sue, which would have compelled or required the trial judge to find that, in taking employment as a waitress at a summer resort during the vacation period, this 16-year-old high school student had any intention of abandoning her actual residence in the family home at Protem or of changing such actual residence to the building behind the restaurant where she and seven other waitresses “were furnished” rooms, even if she, being non sui juris as an unemanci-pated minor, could have effected such abandonment or change. The question as to Gaila Sue’s actual residence at the time of the accident on July 27 was one of fact, in the determination of which the trial judge was entitled to, and no doubt did, consider not only the duration of Gaila Sue’s absence from plaintiff’s household but also its nature and purpose [Keller v. Carr, 40 Minn. 428, 42 N.W. 292, 294]; and, on the evidence presented, certainly the trial judge reasonably could have found that the building behind the restaurant was nothing more than a temporary place of abode and that Gaila Sue continued to be “a resident of and actually living in the same household” as her stepfather. See particularly American Service Mutual Ins. Co. v. Pugh, 8 Cir., 271 F.2d 174. That being so, we obviously may not set aside the judgment nisi as “clearly erroneous.” V.A. M.R. Rule 73.01(d); V.A.M.S. § 510.310 (4).

The judgment for plaintiff is affirmed.

HOGAN and TITUS, JJ., concur.

      . Cain v. Robinson Lumber Co., 365 Mo. 1238, 295 S.W.2d 388, 391(3); Soukop v. Employers’ Liability Assur. Corp., 341 Mo. 614, 626, 108 S.W.2d 86, 91(5), 112 A.L.R. 149; Hammontree v. Central Mutual Ins. Co., Mo.App., 385 S.W.2d 661, 665(2); North Kansas City Memorial Hospital v. Wiley, Mo.App., 385 S.W.2d 218, 223(9); Weinberg v. Globe Indemnity Co., Mo.App., 355 S.W.2d 341, 347; Allstate Insurance Co. v. Hartford Accident & Indemnity Co., Mo.App., 311 S.W. 2d 41, 47(7).

      . Brugioni v. Maryland Casualty Co., Mo., 382 S.W.2d 707, 710-711(3); Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 638-640(3), 86 A.L.R.2d 925; State Farm Mutual Auto. Ins. Co. v. Mid-Continent Cas. Co., Mo.App., 378 S.W.2d 232, 235; Utchen v. American Casualty Co. of Reading, Pa., Mo.App., 356 S.W.2d 102, 105(4); Varble v. Stanley, Mo.App., 306 S.W.2d 662, 665 (2). See American Universal Ins. Co. v. Thompson, 62 Wash.2d 595, 384 P.2d 367, 370-371.

      . Daugherty v. Nelson, 241 Mo.App. 121, 130, 234 S.W.2d 353, 358(7); Curtis v. Curtis, 330 Mich. 63, 46 N.W.2d 460, 462(5); People v. Carman, 385 Ill. 23, 52 N.E.2d 197, 199; Nelson v. Nelson, 71 S.D. 342, 24 N.W.2d 327, 331(9); Bohn v. Better Biscuits, Inc., 26 Cal.App.2d 61, 78 P.2d 1177, 1179, 80 P.2d 484; Beroux v. Industrial Accident Com’n. of Cal., 140 Cal.App. 569, 35 P.2d 624, 626; Western-Knapp Engineering Co. v. Gil-bank, 9 Cir., 129 E.2d 135, 136; Powers v. United States, 6 Cir., 119 F. 562, 565.

      . 77 C.J.S. Beside, p. 285; Id., Residence, pp. 289-290; Id., Resident, pp. 305-306; Kennan on Residence and Domicile (1934), § 1, 1. c. 3-4; Id., § 11, pp. 27-28. See State Farm Mutual Auto. Ins. Co. v. Hanna, 277 Ala. 32, 166 So.2d 872, 876; Chapman v. Davis, 233 Minn. 62, 45 N.W. 2d 822, 825(6).

      . State ex rel. Kelly v. Shepperd, 218 Mo. 666, 667, 117 S.W. 1169, 1172(3); McDowell v. Friedman Bros. Shoe Co., 135 Mo.App. 276, 284, 115 S.W. 1028, 1031 (4); Phelps v. Phelps, 241 Mo.App. 1202, 1209, 246 S.W.2d 838, 845; Trumbull v. Trumbull, Mo.App., 393 S.W.2d 82, 91. See Mackie v. Rankin, D.C.Mich., 87 F.Supp. 614, 617 (2); Stadtmuller v. Miller, 2 Cir., 11 F.2d 732, 738, 45 A.L.R. 895.

      . The intent of the person whose place of residence is in question is to be gathered largely from his (or her) acts and utterances before, at, and after the date when such place of residence is in dispute. In re Toler’s Estate, Mo., 325 S.W.2d 755, 760(8); Trumbull, supra note 5, 393 S.W. 2d at 91(19); Memphis Bank & Trust Co. v. West, Mo.App., 260 S.W.2d 866, 876 (7).

      . Since both parties tried the instant case in the circuit court, and briefed and submitted it here, without reference to the question as to whether or not Gaila Sue, an unemancipated minor, could have fixed or acquired a residence of choice, we have ruled this appeal without considering that question. The interested may consult 28 C..T.S. Domicile § 12b, pp. 21-22; Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 9 A.L.R.2d 428; Phelps, supra note 5, 241 Mo.App. at 1208, 246 S.W.2d at 844(9).

      . Kelso v. Kelso, Mo., 306 S.W.2d 534, 536, 71 A.L.R.2d 258; Barrett v. Parks, 352 Mo. 974, 977, 180 S.W.2d 665, 666; State on Inf. of McKittrick v. Wiley, 349 Mo. 239, 160 S.W.2d 677, 686(20); Toy Teung Kwong v. Acheson, D.C.Cal., 97 P.Supp. 745, 747.

      . The parties have treated the word “household” as meaning “ ‘those who dwell under the same roof and compose a family,’ ” the definition used in Kelso, supra, 306 S.W.2d at 536, cited in defendant’s brief. We accept that definition as satisfactory and sufficient on this appeal, cognizant however that “[t]he word ‘family,’ synonymous with ‘household,’ is [another term] of varied signification and may have a narrow or broad meaning.” Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 641, 86 A.L.R.2d 925.


source: Caselaw Access Project

author: CLEMENS, Commissioner.

license: Public Domain

text:
    Harry F. SCHNEIDER, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant, Third-Party Plaintiff-Appellant, v. SODEMANN HEAT AND POWER COMPANY, a Corporation, E. O. Dorsch Electric Company, a Corporation, and Woermann Construction Company, a Corporation, Third-Party Defendants-Respondents.
    No. 32213.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 17, 1967.
    Strubinger, Wion & Burke, by Donald K. Davis, St. Louis, for appellant Southwestern Bell Tel. Co.
    Louis W. Riethmann, Mueller & Rieth-mann, St. Louis, for respondent Sodemann Heat & Power.
    Evans & Dixon, William Wallace Evans, St. Louis, for respondent Woermann Const. Co.
   CLEMENS, Commissioner.

There were two separate trials in this case. Plaintiff Harry F. Schneider worked for the Sodemann Heat & Power Company as a steamfitter. He sued Southwestern Bell Telephone Company and recovered $10,000 for injuries from an electrical shock received while installing an air-conditioning register in Bell’s downtown office building. (See Schneider v. Southwestern Bell Telephone Co., Mo.App., 354 S.W.2d 315.) In the present phase of the action, Bell as third party plaintiff sued three contractors as third party defendants to recover $14,465.-65 for Schneider’s judgment, interest and litigation expenses. The trial court, sitting without a jury, found the issues against third party plaintiff Bell, and it appeals.

We digress to relate documentary evidence concerning the first trial. In the trial of this third party cause the court received in evidence the trial transcript and this court’s opinion in Schneider’s case against Bell. The issues finally adjudicated in the first trial are established by the submission, the verdict and the judgment against Bell and in favor of Schneider. His verdict directing instruction submitted Bell’s duty to exercise ordinary care to furnish Schneider a safe place to work. By its verdict for Schneider under this instruction the jury found Bell negligent in permitting the partially bare wire to be placed on the floor of room 604, and also negligent in failing to warn Schneider of the presence of the wire. On Bell’s appeal (354 S.W.2d 315) we affirmed, holding Schneider was Bell’s invitee and Bell had a non-dele-gable duty to afford him a safe place to work and to warn him of latent danger.

Bell’s points relied on here are that (1) its separate contracts with the third party defendants make them liable to Bell as in-demnitors, and (2) under the evidence the third parties’ liability as indemnitors is implied in law. As noted later, we question whether these points are preserved for review because of Bell’s failure to raise them in its after-trial motion.

In its third party petition Bell alleged it was only passively negligent, but that the three contractors were actively negligent “in the placing of bare temporary wire at random on the floor” of the room where Schneider was working.

We summarize the evidence: Bell made plans to install an air-cooling and heating system in its office building. The plans called for a central air-conditioning system connected by tubing running through the. floors and walls to registers in each room. The registers were about 5' x 4' x 1' and weighed just under a hundred pounds each. Bell contracted separately with the third party defendants to install the system. Briefly, Sodemann Heat & Power Company was to install the tubing and connect it to registers in each room; E. O. Dorsch Electric Company was to do the electrical work necessitated by the installation; and Woer-mann Construction Company was to do the carpentry work.

Bell relies on three contract clauses: By Article 9 of the Sodemann contract, titled “Sub-Contracts,” Sodemann was responsible for general management of the building and had directing authority over the performance of subcontracts. (The evidence, however, showed separate contracts between Bell and the three contractors, and no subcontracts by Sodemann.) By Article 35 of the Sodemann, Dorsch and Woermann contracts, each contractor-had a duty to inspect and report to Bell’s architect any defect that would interfere with the work of any other contractor. By Article 12 of the contracts, each contractor agreed to take necessary precautions for the safety of all contractors’ employees. No contract clause required any contractor to indemnify Bell’ for injuries to employees.

The evidence described several steps in the usual installation process: Sodemann would drill holes in the wall and the floor of a room to expose the tubing where registers were to be attached. Sometimes this drilling severed electric wires; when it did Dorsch would string temporary wiring in the room. (This wiring was necessary to let Bell’s radio technicians continue using the electrical equipment in the room.) The temporary wiring would lie on the floor or be clipped to the baseboard. Sodemann’s foreman Grassmuck would mark the floor where the register was to be connected and the register would be put in the room to be measured by Woermann, who would cut out sections of the baseboard’ to fit the register. Last, Sodemann would place the register against the wall and connect it with the exposed tubing. These steps did not always proceed in that order; sometimes Woer-mann would cut out the baseboard before Dorsch had installed temporary wiring. So much for the general installation method.

The immediate cause of Schneider’s injury is clear; who produced that cause is vague. On the day he was hurt Schneider went to room 604 to connect a register. Holes had been drilled in the floor, severing electrical wires; temporary wiring had been strung across the room. The baseboard had been cut out and for two days the register had sat on the floor within a few inches of the wall. Unknown to Schneider, a corner of the register was resting on a section of the temporary wiring at a point where it was not fully insulated. When Schneider touched the register he got the electric shock. This was the dangerous condition that caused Schneider’s injury.

As said, the evidence is vague about who caused the dangerous condition. Room 604 was being used by Bell’s radio technicians and also by the three contractors’ workmen. Dorsch’s electrician Intagliata did temporary wiring on the sixth floor but did not recall room 604. When Sodemann’s foreman Grassmuck came into room 604 two days before the accident, temporary wiring lay on the floor; but the baseboard had not yet been cut out to receive the register, so Grassmuck marked an “X” on the floor where it was to be installed. Two days later Grassmuck noticed the register had been put in room 604 and the baseboard had been cut out. He did not notice whether the register was sitting on the temporary wiring. Grassmuck sent Schneider and a helper to room 604 to position and connect the register. When they got there the register sat a few inches from the wall where it was to be installed. The room was dark and Schneider did not see any wiring on the floor. He touched the exposed tubing with one hand and the register with the other. That was the last he remembered.

After Schneider’s injury his helper, Charles High, went back to inspect room 604. The temporary wiring was clipped to the baseboard except along the wall where the baseboard had been cut out ; there the wiring lay on the floor, partly under the register. At that point the wire had been spliced and taped, but an inch or two of the insulation was jagged and the wire exposed. This was the evidence. It was not shown whether the wire had been left bare by the electrician, or made bare later by placing the register on the wire, or made bare still later by someone’s moving the register after it had been placed atop the wire.

After taking the case under advisement, the trial court found Bell had “failed to produce sufficient evidence to cause the Court to believe the proposition necessary to support its claim against any third party defendant, and that the Court is unable to form a belief as to any of the contentions made against the third party defendants without indulging in either guesswork or speculation.” The court found the issues against Bell and dismissed its petition with prejudice. Bell filed an after-trial motion asking alternatively for judgment or a new trial.

Before we consider the points in Bell’s brief we must decide whether Bell’s after-trial motion, because of its generality, has preserved the points for review.

Two rules limit our review: Disregarding inapplicable exceptions , Civil Rule 79.03 declares allegations of error must be presented to the trial court in an after-trial motion, and general allegations of error suffice only if specific objections were made during trial. Civil Rule 83.13(a) declares we shall consider only those allegations of error that were presented to the trial court. These were the grounds of Bell’s after-trial motion:

“1. Said verdict is against the weight of the evidence.
“2. Said verdict is against the law and the evidence and the law under the evidence.
“3. That the Court has overlooked evidence sufficient to cause the Court to believe the proposition of the plaintiff and sufficient to support its claim against said defendants.
“4. That the Court has incorrectly interpreted the law as to the evidence adduced by the plaintiff, and if the law were correctly applied the plaintiff would be entitled to certain inferences and presumptions, and under such inferences and presumptions, the evidence would be sufficient to cause the Court to believe the proposition of the plaintiff so the Court could form a belief as to the contentions of plaintiff against said defendants without indulging in guesswork and speculation.”

Grounds 1 and 2 are patently general. Ground 3 is an enlarged restatement of ground 1. Ground 4 is a wordy expansion of ground 2. Individually and collectively these grounds are utterly void of any specific allegation of error. Nor do they remotely resemble the points relied on in Bell’s brief.

The dual purpose of an after-trial motion is stated tersely in Fruit Supply Co. v. Chicago, B. & Q. Ry. Co., Mo.App., 119 S.W.2d 1010[4]: “The office of a motion for a new trial is to gather together the rulings complained of as erroneous, and solemnly and formally present them, one by one, in black and white to the judge in order that he have a last chance to correct his own errors without the delay, or expense, or other hardships of an appeal. This much is required. Less does not preserve the rulings for review.” This is a well established principle of our law of trial and appellate procedure. Lloyd v. Garren, Mo., 366 S.W.2d 341 [6, 7].

This principle requires that the grounds of an after-trial motion be specific, not general; and deficiencies in an after-trial motion cannot be supplied by appellant’s brief. Civil Rules 79.03 and 83.13 (a) so declare. And see Ayres v. Keith, Mo., 355 S.W.2d 914 [1, 2], and Layson v. Jackson County, 365 Mo. 905, 290 S.W.2d 109 [5]. For cases holding that assignments similar to Bell’s preserve nothing for review, see 2A Mo.Digest, Appeal & Error @=>302.

Nothing has been preserved for review, so we must affirm the judgment. We have considered Civil Rule 79.04, V.A. M.R., declaring that plain errors affecting substantial rights may be considered on appeal even though defectively preserved for review if manifest injustice or miscarriage of justice has resulted. We find no reason here to apply the rule.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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

      . Under Civil Rule 79.03, Y.A.M.R., it is not necessary in a court-tried case to file an after-trial motion to preserve questions of (1) the court’s jurisdiction over the subject matter, (2) the sufficiency of the pleadings to state a claim or defense, or (3) the sufficiency of the evidence to support the judgment.


author: ANDERSON, Judge.

text:
    Dr. Frank P. GILMORE and Dr. Bernard Friedman, Plaintiffs-Respondents, v. Louis E. THOMPSON, Civil Service Commission of the City of St. Louis and Each Member Thereof Individually and as Members of the Civil Service Commission, Mrs. Richard M. Hoffman, Chairman, Walter C. Haeussler, Vice Chairman, and George L. Stemmier, Member, Defendants-Appellants.
    No. 32489.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 17, 1967.
    Schwartz, Schwartz & Gilden, Charles R. Oldham, St. Louis, for defendants-appellants.
    Thomas F. McGuire, City Counselor, Gary M. Gaertner, Associate City Counselor, St. Louis, for plaintiffs-respondents.
   ANDERSON, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, which reversed a decision of the Civil Service Commission of said City.

The subject matter of the action is whether a bi-weekly paid employee of the City who had been granted sick leave with pay for injuries arising out of and in the course of his employment under Section 20 of Ordinance 50661 was entitled to an additional allowance for permanent partial disability.

The employee, Louis E. Thompson, was on August 2, 1963 employed by the City as a Custodial Worker I. The position of “Custodial Worker I” is listed in said ordinance as a bi-weekly employee entitled to benefits under the ordinance.

Thompson was employed at Koch Hospital, a City institution, on August 2, 1963. He was injured on that date while in the act of pushing an ice truck down a ramp at said hospital. While pushing the truck, a patient suddenly emerged from an adjacent Physical Therapy room in close proximity to the ice truck, and while attemping to prevent the truck from striking this patient, Thompson lost control and was thrown against the wall and onto the floor. As a result of this episode, Thompson sustained injuries to his right and left leg. He was immediately thereafter treated by a doctor at the hospital, and told to report back to work. This he did, and worked until August 26, 1963. On that date he entered the City Hospital where he remained until September 6, 1963. At the hospital, surgery was performed on his right leg, and a cast put on it. This cast remained on his leg until about two weeks before he returned to work. He returned to work on December 11, 1963. He testified at the hearing that after returning to work, “Well, I work in the basement at the hospital, * * I can’t do any lifting * * the only thing I can do mostly is sweep around the basement, and things like that.” His position after returning to work was the same as he previously held under Civil Service, i. e., Custodial Worker I.

It was stipulated between the parties that the accident which caused Thompson’s injuries arose out of and in the course of his employment; that he was absent from his employment from August 26, 1963 through December 10, 1963, and that he has been paid his full wages on the basis of 15 weeks disability, totaling $912.18. It was further stipulated that two physicians who had examined the employee reported that he had a certain degree of permanent partial disability. The treatment which Thompson received at Koch Hospital and at the City Hospital were without cost to him.

At the conclusion of the hearing at which the above stipulations were entered into, and the evidence which we have detailed was adduced, the members of the Commission adopted an opinion of Mr. Stemmier, one of its members, in which the following conclusion was reached:

“ * * * it is my conclusion that, in the case of an employee sustaining permanent partial disability as the result of a service-connected injury, the ‘grant’ or ‘allowance’ to the employee is not limited to the payment of his wages during the period that he is actually away from his work, but that the employee is entitled to such grant or allowance as the City Counselor, in the exercise of a sound discretion, may determine, having due regard for the nature, character and extent of the injury and consequent permanent disability.
“In arriving at such determination, the City Counselor cannot be held to be rigidly bound by the provisions of the Workmen’s Compensation Law, but, as has already been recognized by the City Counselor in certain instances, these provisions furnish a useful and reasonable guide in arriving at his determination.
“In making his former recommendation, the City Counselor did so on the basis that, even though the employee sustained a certain extent of permanent disability, he was limited, under the ordinance, to payment of his wages while he was actually away from work.
“There has, therefore, been no recommendation by the City Counselor under the construction of the ordinance as set out in my views hereinabove expressed.
“It is my opinion, therefore, that the matter should be referred back to the City Counselor for his recommendation under the construction of the ordinance as set out herein.”

After the rendition of Mr. Stemmler’s opinion, the Commission directed a letter to Mr. Gary Gaertner, the Assistant City Counselor, in which the claim of Louis E. Thompson was referred to the City Counselor for his recommendations under the ordinance consistent with the above mentioned opinion.

On March 16, 1965, the City Counselor notified the Commission, in a letter of that date, that he declined to submit a recommendation for additional compensation to said employee. The reasons for such refusal are stated in said letter as follows:

“The City Counselor respectfully declines to submit a recommendation for additional compensation in this matter. This office is required under the above-mentioned law and the present compensation ordinance to 'recommend in writing to the appointing authority the amount of disability leave with pay to be granted for such injury * * *.’ This requirement has been fulfilled in the matter of Louis Thompson. The express language of Section 20 does not require nor does it permit the granting of any additional compensation.”

Thereafter additional evidence was introduced. The City introduced a medical report of Dr. Burton A. Shatz in which he stated that Mr. Thompson had permanent disability of 15 percent. The employee introduced a medical report by Dr. William Stephens in which he stated that Louis E. Thompson had a permanent partial disability of the right lower extremity at the mid thigh of about 30 percent.

Thereafter on June 8, 1965, the Civil Service Commission rendered its Statement, Findings of Fact, Conclusion of Law and decision wherein Louis E. Thompson was granted the sum of $1,647.72 being based upon a finding of twenty percent loss of the use of the right leg. This sum was arrived at by allowing $39.80 per week for 41.4 weeks. This award was arrived at by using as a guide the method employed under the Workmen’s Compensation Law in determining permanent partial disability. This award was specified to be in addition to the payments to said employee of sick leave benefits while he was away from his duties on account of his injury and disability, and was conditioned upon said employee executing a full release on account of his injury and disability. The decision was by a majority of the Commission, there being one dissent.

From the above mentioned decision, there was an appeal by employee’s appointing authority to the Circuit Court. The Circuit Court reversed the order of the Civil Service Commission. From this judgment, Louis Thompson, the Commission and the members thereof appealed to this Court.

Appellants contend that the trial court erred in reversing the decision of the Civil Service Commission. In support of this contention, it is urged that the trial court erroneously substituted its discretion for that vested by law in the Civil Service Commission.

It seems to be appellants’ theory that since the ordinance in question was recommended by the Civil Service Commission pursuant to Article XVIII, Section 4 of the City Charter, and that under the decisions (Kirby et al., v. Nolte, et al., 351 Mo. 525, 173 S.W.2d 391; Abernathy v. City of St. Louis, Mo., 313 S.W.2d 717) changes cannot be made therein except upon the recommendation of the Commission, any interpretation of the meaning and breadth of Section 20 of said ordinance must stand if it can be reasonably supported; and that the Commission’s interpretation was in fact reasonable under a liberal interpretation of it in connection with other provisions of said ordinance.

It is also urged that the award under the ordinance, as construed by the Commission, is supported by competent and substantial evidence upon the whole record.

It has been held many times that in reviewing a decision of an administrative tribunal, an appellate court is not bound by said tribunal’s interpretation of a statute involved in the proceedings. In other words, there is no discretion lodged in the administrative body that in any way restricts or limits the right and duty of the court to interpret the law applicable to the case before it. Kroger Co. v. Industrial Commission of Mo., Mo.App., 314 S.W.2d 250; Horrell v. Chase Hotel, Mo.App., 174 S.W.2d 881; Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77. The question then before this Court is whether under the terms of the Civil Service Ordinance claimant is entitled to an award for permanent partial disability in addition to the disability leave with pay theretofore granted to him.

In the case at bar the employee’s right to benefits is governed by Section 20 of Ordinance 50661, the material part being as follows:

“Any bi-weekly paid employee who shall suffer personal injury or unusual sickness arising out of and in the regular course of his employment while engaged in, on or about the premises where his duties are being performed or where his presence is required as a part of his service shall report such injury or sickness to his immediate superior who shall in turn report, through proper channels, to the City Counselor and Department of Personnel all facts concerning the incident. The appointing authority shall provide such written information and recommendations as may be requested by the City Counselor. The City Counselor or his designated representative shall, upon his determination that such personal injury or unusual sickness arose in such manner, recommend in writing to the appointing authority the amount of disability leave with pay to be granted for such injury or unusual illness and the appointing authority shall grant the amount recommended by the City Counselor.”

Appellants urge that by providing in paragraph one of Section 20 for sick leave benefits for employees suffering disability not arising out of and in the course of employment merely upon the approval of the appointing authority without approval of the City Counselor who is qualified to make a quasi judicial decision the authors of the ordinance in question must be held to have intended that a claim such as Thompson’s would encompass a grant for permanent partial disability in addition to pay for lost time from work; that a liberal construction of the ordinance compels this view.

In our opinion, there is no merit to this view, whether the terms of the act are given a liberal or strict construction. We cannot read words into the act under any theory of construction. All that the ordinance provides in cases such as the one before us is disability leave with full pay. This was granted by the City Counselor. In our judgment, the Commission in allowing an additional sum for permanent partial disability exceeded its authority.

Nor does the fact that it has been the practice of the Commission to use the provisions of the Workmen’s Compensation Law as a guide in determining the amount of sick leave where the claimant fails to return to work alter our views in this matter. The claimant in the case at bar did return to work and his rights are to be determined under that portion of Section 20 which we have set out in this opinion.

The judgment of the Circuit Court is affirmed.

WOLFE, P. L, and RUDDY, L, concur.


author: PER CURIAM:

text:
    William C. WIESEMANN, Plaintiff-Appellant, v. Edward PAVLAT, Defendant-Respondent.
    No. 32492.
    St. Louis Court of Appeals. Missouri.
    Feb. 27, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 17, 1967.

      Padberg & Raack, Godfrey P. Padberg, St. Louis, for appellant.
    Evans & Dixon, Ralph C. Kleinschmidt, St. Louis, for respondent.
   PER CURIAM:

This appeal presents a question of proper use of MAI right-of-way instructions in a boat collision case governed by maritime law. The suit was for damages suffered by the parties when their outboard motorboats collided on the Lake of the Ozarks. Each claimed the right of way under maritime law. The jury found against plaintiff William C. Wiesemann on his petition and against defendant Edward Pavlat on his counterclaim. The defendant was satisfied with the dogfall, but plaintiff moved for a new trial and appealed when that was denied.

The ultimate issue below was who had the right of way. Plaintiff’s verdict director said he should recover if the defendant negligently failed to yield the right of way to plaintiff. Conversely, the defendant’s contributory negligence instruction exonerated defendant if the jury found plaintiff had negligently failed to yield the right of way to the defendant. The plaintiff’s principal point here is that the defendant’s right-of-way submission was not supported by the evidence.

Plaintiff contended he and the defendant were on a crossing course, and plaintiff had the right of way because he was on the defendant’s right-hand side. Defendant contended he and the plaintiff were on an approaching course, and he had the right of way to pass to the right side of plaintiff’s course. Thus, the factual issue was whether the boats were on a crossing course or on an approaching course when the risk of collision arose. The parties’ rights are to be determined by the evidence and by maritime law, which the parties agree controlled their rights.

The two maritime rules of right of way here are simple. We paraphrase §§ 343 and 344 of Title 33, U.S.C.A. The “starboard side rule” says in effect that when two boats are crossing so as to involve risk of collision, the boat which has the other to its right shall keep out of the way of the other. In other words, the boat on the right has the right of way. On the other hand, the “end-on rule” says in effect that when two boats are meeting head on, or nearly so, so as to involve risk of collision, each shall alter course to the right so as to pass safely. In other words, each has the right of way on his own right-hand side.

We find it impossible to make a cogent statement of all the evidence. No doubt it was hard for counsel to elicit clear, verbal descriptions of the lake site where the collision developed and occurred. And it was hard for the witnesses to state precise directions, distances, speeds and relative positions. By tacit agreement counsel avoided these difficulties: they used a plat and three aerial photographs on which they pointed out their courses and positions leading up to the collision. The exhibits were neither referred to by number nor marked as the witnesses testified. Page after page of the transcript has disconnected phrases, such as “right here,” “along there,” “like so,” “this way” and “that way.” Gestures were used freely to describe boat movements and positions; we notice scores of reporter’s comments — “pointing,” “indicating” and “demonstrating.” These bits and pieces of testimony illustrate our difficulty:

“Q. What relative direction was your boat going at the time you first saw the Pavlat boat? Use my pointer. Put it level like this. A. [By plaintiff] My bow was somewhere like so (indicating).
“Q. We are demonstrating in front of the jury, and if I understand correctly, Mr. Pavlat is going in the direction of my pencil which is along the jury rail to the rear, and the pointer, representing your boat, is going toward the jury box and a little bit to the south, a little bit south of west. Is that correct? A. No, sir, you are just about west right now with this.”
******
“Q. Let’s say that this back of this picture is the cove (pointing),— A. [By defendant] Uh-huh.
“Q. —and let’s say this part is your boat right here (pointing), and this part is Wiesemann’s boat (pointing). When you were coming up, you were generally in this area (pointing) ; isn’t that how you described it? The yellow pencil was him and the pointer was you? A. Yes, but he was going this way more when I first saw him (indicating).”

Helpful as these pictorial and gesticulative demonstrations were to the trial court and the jury, they are merely frustrating to us. What shed light in the courtroom merely casts shadows in the transcript. The transcript does show a few reasonably definite facts and inferences about the collision, enough we think to enable us to decide the issues raised by the plaintiff-appellant.

This much seems certain: The boats ■collided in a cove off the main body of the lake. The closed end of the cove was to the south and the open end to the north. The defendant started from the south end of the cove and moved north toward the lake. He was going 20-some miles an hour. Ahead of him and to his right the plaintiff had left the east bank of the cove and was moving toward the west bank, going about 20 miles an hour. The plaintiff was pulling a water skier at the end of a 75-foot line. Plaintiff’s course was not straight, but in what he called “a sweeping left turn,” “a big circle.” Thus, the plaintiff left the east bank of the cove headed in a northwest direction, at an acute angle to defendant’s northward course; then, as plaintiff curved to his left, he was headed west at a right angle to defendant’s course; finally, as plaintiff curved further to his left, headed southwest, he was approaching defendant’s course at an obtuse angle. Plaintiff and defendant saw each other when still 150 yards apart. Had both boats then maintained their speeds and courses, the plaintiff’s boat would have passed safely in front of the defendant’s boat. But even so, the water skier 75 feet behind plaintiff might have been endangered by the crossing.

At about the same moment plaintiff and defendant took corrective action. The plaintiff “adjusted” his course to his left; we do not know how much, but this turn would have avoided a crossing and plaintiff would have passed parallel with and to defendant’s right side. Simultaneously with plaintiff’s left turn in front of defendant, the defendant reduced his speed and turned slightly to his right. These turns by each boat brought them almost into a head-to-head position, distance unknown, plaintiff heading south and defendant still heading north. Then the final evasive actions. The defendant stopped his motor and turned hard right; the plaintiff turned hard left. The boats collided — the prow of defendant’s boat against the right-front side of plaintiff’s boat.

On this evidence, plaintiff contended that the risk of collision arose when the boats were on a crossing course, and he had the right of way under the “starboard side rule” because he was on the defendant’s right-hand side. To the contrary, defendant contended that the risk of collision arose when the boats were approaching each other nearly “end on,” and he had the right of way to pass by giving way to the right — which he did, but which plaintiff failed to do. These contrary contentions were presented to the jury by the instructions.

Plaintiff’s verdict directing Instruction 2 was a combination MAI 17.04-17.08. It told the jury to find for plaintiff if defendant negligently failed to yield the right of way to plaintiff. Defendant’s Instruction 4 was a combination MAI 28.01, 17.04-17.08. It told the jury to find for the defendant on plaintiff’s claim if the plaintiff was contributorily negligent in failing to yield the right of way to the defendant. Thus, plaintiff relied on his own right of way under the “starboard side rule” to sustain his claim, and defendant relied on his own right of way under the “end-on rule” to defeat that claim. Both parties recognized their obligation under MAI 14.01 to define right of way, and each offered his own definition. The trial court combined the two definitions into one instruction and gave a modified MAI 14.02, marked Instruction 10:

“[1] The phrase ‘right of way’, as used in these instructions, means the right of one boat to proceed ahead of the other.
“[2] When two motor boats are crossing so as to involve risk of collision, other than when one vessel is overtaking another, the vessel which has the other to starboard or right shall keep out of the way of the other.
“[3] When two motor boats are meeting end on, or nearly end on, so as to involve risk of collision, it shall be the duty of each to pass on the port [left] side of the other, and to alter course to starboard [right] sufficiently so that this can be done in safety.”

We note that a right of way exists only when the relative position of the two boats involves a risk of collision.

Plaintiff levels three attacks at the defendant’s right-of-way submission under Instructions 4 and 10: that only one party could have the right of way, so it was error to allow both parties to instruct on right of way; that defendant’s right-of-way submission under the “end-on rule” was not supported by evidence; and that defendant had not pleaded right of way as a defense.

Plaintiff first challenges the dual right-of-way submission. Having submitted his own case under the “starboard side rule,” plaintiff says it was inconsistent for the court also to submit defendant’s contributory negligence defense under the “end-on rule.” Plaintiff’s point: “Only one party had the right of way in a two vehicle collision and to allow both parties to instruct on violation of right of way is misleading and confusing to a jury.” Plaintiff is correct in his premise that only one party to a collision has the right of way. But he errs in his conclusion that it is error to submit separate right-of-way instructions to meet opposing factual situations. Which one of the two parties had the right of way depended on what facts the jury believed. Where evidence shows two conflicting factual situations, each of which supports a claim to the right of way, then each party is entitled to submit his case on the other’s failure to yield the right of way. Klee v. Bryan, Mo. App., 346 S.W.2d 695[2 — 4], and Jameson v. Fox, Mo.App., 269 S.W.2d 140 [5].

We have considered plaintiff’s cited cases on this point. Pigg v. Bridges, Mo., 352 S.W.2d 28, is typical. It condemns an instruction that requires a finding of two inconsistent facts submitted conjunctively. But the opinion approves an instruction that alternatively submits inconsistent facts in the disjunctive. Here, the right-of-way submissions were in the disjunctive, and it was for the jury to determine which one of the two factual situations existed, and to apply the appropriate right-of-way rule to that situation.

Plaintiff’s major attack on defendant’s right-of-way submission under the “end-on rule” is that there was no evidence to support it. In making this determination we may consider only the evidence most favorable to the defendant. Emert v. St. Louis Public Service Co., Mo., 370 S.W.2d 366 [3]. We have noted that both the “starboard crossing rule” and the “end-on rule” give a vessel the right of way only when a risk of collision is involved. Plaintiff now contends all the evidence showed the risk arose when the boats were on the initial crossing course — that only the “starboard crossing rule” was supported by evidence. To the contrary, defendant contends the favorable evidence showed the risk of collision arose later, when the boats were in an end-on course. We agree. And we recite evidence favorable to defendant, much of it from plaintiff himself: In a pre-trial deposition, plaintiff was asked if his course was a 180-degree turn.

“A. No, I was at the boating dock (indicating) and I was in this big circle like so. There was another cove out this way (indicating), this big cove that the other fellow was coming down, and actually I was in this big turn and by the time I finished I was heading back up the same direction this other gentleman was coming.
“Q. In other words, the other gentleman was coming north when you finished your turn and you were headed south ?
“A. That’s right; yes, sir.”

Plaintiff and defendant both said that had they stayed on their initial courses plaintiff’s boat would have passed safely in front of defendant’s boat. Plaintiff said that it was to protect his skier that he turned further left, “figuring” this would let the two boats pass parallel without plaintiff’s crossing in front of defendant’s boat. This further left turn put plaintiff and defendant on parallel courses, head-to-head or nearly so. Defendant then turned to his right, in accordance with the “end-on rule”; but plaintiff then turned hard left, contrary to that rule, into the collision. Plaintiff admitted there was risk of the boats colliding before he made his last change of course to his left. In the face of this testimony favorable to the defendant, we cannot agree with plaintiff that defendant’s right-of-way submission under the “end-on rule” was unsupported by evidence.

Plaintiff cites several maritime cases to buttress his own theory of right of way under the “starboard side rule”: “U. S. v. S. S. Malden, D.C., 224 F.Supp. 70S; The Gulfstar, 3 Cir., 136 F.2d 461; Tidewater Associated Oil Co. v. U. S., 60 F.Supp. 376; The Fred B. Dalzell, Jr., C.C.A.N.Y., 45 F. 2d 580; The Hans Maersk, D.C.N.Y., 39 F. 2d 98.” The principles announced there are based on predetermined factual situations in which the “starboard crossing rule” is applicable, or on predetermined factual situations in which the “end-on rule” is not applicable. Under the evidence here the jury did not .have to accept plaintiff’s contention that a risk of collision arose in a crossing situation, and it could have accepted defendant’s version that the risk of collision arose in an end-on situation. So, the cited cases do not apply to the point plaintiff has briefed: that defendant’s right-of-way submission was not supported by evidence.

Plaintiff’s last attack on defendant’s right-of-way submission is that it was not specifically pleaded by the contributory negligence allegations in defendant’s answer. This objection was not raised when the instructions were given, nor by plaintiff’s after-trial motion. It is first mentioned in plaintiff’s brief; that is too late. The point is not preserved for review. Civil Rules 70.02, 79.03 and 83.13(a), V.A.M.R.

Plaintiff also charges that the right-of-way definition Instruction 10 was defective in form. He says it “does not involve right of way,” is not “related to any other instruction,” and is confusing. As mentioned earlier, plaintiff’s verdict director told the jury to find for plaintiff if he had the right of way; and defendant’s affirmative defense instruction told the jury to find for defendant if he had the right of way. Then, in accordance with MAI 14.01, each party defined right of way by separate instructions, which the trial court combined into one. The first paragraph of Instruction 10 substantially followed MAI 14.02, saying that right of way meant the right of one boat to proceed ahead of the other. By the second and third paragraphs the court tersely stated the “starboard crossing rule” and the “end-on rule” as declared by the maritime statutes. True, neither the second nor third paragraphs used the words “right of way,” but neither do the federal statutes. The basic flaw in plaintiff’s attack, however, is that the asserted error in defendant’s third paragraph is common to plaintiff’s own definition in the second paragraph. Reading Instructions 2, 4 and 10 together, we find neither misdirection nor confusion. Instead, we find a common sense application of MAI to a unique submission.

Plaintiff’s final point challenges the trial court’s refusal to permit him to cross-examine the defendant about an inconsistency between (a) defendant’s testimony that he had had no medical treatment, and (b) a statement in his abandoned counterclaim that he had incurred medical expense. By this original counterclaim the defendant pleaded medical expense. By his amended counterclaim, however, he made no such claim, and on cross-examination denied he had gone to a doctor. Then plaintiff offered the abandoned counterclaim in evidence, but the court sustained defendant’s obj ection.

Plaintiff argues he had a right to show the original claim of medical treatment to impeach the defendant. True, the original counterclaim was inconsistent with defendant’s testimony of no medical treatment. When defendant abandoned his claim for medical expense, however, that issue dropped out of the case. It then became a collateral matter. Two rules uphold the court’s ruling: A cross-examiner is bound by the witness’s answer to a question on a collateral matter and may not introduce other evidence just to contradict the answer. Frechin v. Thornton, Mo., 326 S.W. 2d 122[1], Further, a trial court has broad discretion in the scope of cross-examination, particularly as to collateral matters, and its ruling will stand unless there is an abuse of discretion. Huston v. Hanson, Mo., 353 S.W.2d 577[3, 4]. The trial court did not err in refusing to permit cross-examination of defendant on his abandoned counterclaim.

Finding no reversible error, we order the judgment affirmed.

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


author: BRADY, Commissioner.

text:
    Louis LUKETICH, Employee, Plaintiff-Respondent, v. KREY PACKING COMPANY, Employer, Self-Insurer, Defendant-Appellant.
    No. 32491.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Motions for Rehearing Denied March 17, 1967.

      R. C. Reis, St. Louis, for defendant-appellant.
    Harry J. Nichols, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This appeal arises out of a claim for workmen’s compensation. The circuit court affirmed the decision of the Industrial Commission and the self-insured employer appeals. The parties will be referred to as “the employee” and “the employer”. We will refer to the Industrial Commission by that title and sometimes as “the Commission”.

We are first confronted with two attacks upon the jurisdiction of this court which must be disposed of. The first of these arises from the employee’s contention the employer failed to file a timely application for review from the award of the referee. The filing of an application for review of a referee’s award in a Workmen’s Compensation case within the time prescribed by the statute provided for such a review is jurisdictional. Tabb v. McGinley, Mo.App., 313 S.W.2d 745. Of course, if the Commission had no jurisdiction to review the referee’s award then neither the circuit court nor this court has jurisdiction to consider the appeal from the award of the Commission. In Tabb v. McGinley, supra, this court (construing the ten-day provision then contained in § 287.480, RS Mo 1949, V.A.M.S.) held that an application for review is made on the date it is received by the Commission rather than when it is deposited in the mail. In the instant case the referee’s award was not made until March 22, 1965. The employee’s application for review was received by the Industrial Commission on April 8th of that year. The employer’s application for review was received on April 12th of that year. In 1963 the section dealing with an application for review was amended and “twenty days” was substituted for “ten days”. See Laws 1963, p. 410, § 1. It is clear that the employee’s application was received by the Commission within the twenty days provided by § 287.480, RSMo 1959, V.A.M.S. It is likewise clear that the employer’s application for review was received on the twenty-first day. However, a reference to the calendar for the year 1965 will disclose that April 11th, the twentieth day after the award of the referee, fell upon a Sunday. Under these circumstances the employee’s contention is without merit and the employer did file a timely application for review.

The employee also contends that we are without jurisdiction in this matter for the reason that, to quote from his motion to transfer this appeal to the Supreme Court, “ * * * ‘the order and judgment of the Circuit Court’ * * * embodies a decision affecting the Treasurer of the State of Missouri * * The simple answer to this contention is that regardless of whether that State official was a party to this proceeding prior to the referee’s award, he ceased to be such after that time and the decision of the circuit court does not affect the State officer. The record discloses the employee filed his claim against the employer and, to quote from the claim, “State Treasurer, State of Missouri, Second Injury Fund, Jefferson City, Mo.” For some reason that cannot be discerned the State Treasurer never raised any question as to the propriety of the proceeding against the Second Injury Fund, filed an answer, and participated in the hearing before the referee. In his award the referee denied the employee’s claim for compensation from the State Treasurer as custodian of the Second Injury Fund. In his application for review the employee did not request review of that matter. Neither did the employer. Accordingly, that matter was then finally determined. Whatever may be the effect of the appearance by the attorney for the State Treasurer before the circuit court, that appearance cannot revive an issue which was already finally determined. It should be noted that the employer, appellant in the instant case, raises, no issue with regard to the Second Injury Fund. This court has jurisdiction of this, appeal.

The facts out of which the employee’s claim arose are that he had first had trouble with his back some twenty-four or twenty-five years before this incident when he hurt his back while carrying some trays up a flight of stairs. This injury “ * * * wasn’t a sudden thing, it was a result of doing this more regularly, this twisting way of walking up the stairs with this weight.” As a result he had pains off and on sometimes at intervals of two to three years. Later on, while working as a boner at another meat company, he got a catch in his back and went to the doctor who thought his bad appendix was at least the partial cause and it was removed in 1950 or 1951. He did not lose any time nor did he make a claim because of his back on this occasion. After the' appendix operation there was a period of time when he had no pain and then in 1954 he began to have pain again at the lower right side of his back. The pain did not result from any “one particular thing” and after it hurt for a week or so he was examined by Dr. Ford who gave him a brace which he was to wear except when sleeping. He wore this brace regularly for about three months and then, being free of pain, discontinued its regular use although he has been wearing it off and on ever since then. In 1961 or 1962 the trouble in his back began to gradually return without being caused by any specific incident, and he went to see a chiropractor who gave him deep sound therapy. He was able to perform his regular duties and did not lose any work. In a matter of a week or so “it cleared up”. In early September of 1962, about one week prior to the incident upon which he bases this claim, he went to see a Dr. Vacca due to “pain in the lower part of my back on the right side.” Again this was not caused by any particular incident. Dr. Vacca prescribed medicine for him, took x-rays, examined him, and asked him to continue the deep sound therapy with the chiropractor. On all of these occasions he was without pain for the time between the occurrences, and between them had free movements of all of his limbs.

On September 13, 1962, the day of this accident, the employee went to the employer’s first aid room to get some pills as he had some pain in his back. He was wearing the brace Dr. Ford had prescribed for him. Later that day while taking a hindquarter of beef from a conveying rail located about five to six feet from the table where he was to bone it he suffered the injury forming the basis for this claim. The conveying rail was about seven to eight feet high and he put a hand hook held in his left hand into the meat to hold it. There was a truck (cart) furnished for waste and fat to be thrown into and this was parked in the employee’s way as he brought the hindquarter from the rail to the boning table. His normal method of removing the quarter would be to take it off the rail, pivot around on the right foot, swing the beef around to the table and drop it there all in a continuous motion. On this occasion the truck was not parked in its usual place but was parked in such a way that had he continued with this motion the handle of it would have struck him on his shin. Seeing this was about to happen, he stopped but “ * * * the beef continued to come, and that is when I felt the pain in my back.” He dropped the quarter which weighed about 125 lbs. and, falling forward, grabbed onto the truck. He was bent over with the pain which was on the left side of the lower part of his back, and was trying to avoid putting weight on the left leg as when he did so pain ran down it so that “I couldn’t stand it.” He could not put any weight on his left leg and had to be carried into the first aid room. He sat on a chair there while they gave him a pain shot but “ * * * the pain hit me again and I fell to the floor and lost consciousness for a short period of time, and while I was, they picked me up off the floor and put me on the table there in the first aid room.” He was taken to the ambulance on a stretcher and by ambulance to St. Mary’s Hospital where he remained until September 18. While there he was in traction for almost the entire time and was given deep therapy treatments. He was under the care of Dr. Vacca. He lost two weeks work and he has worked regularly since his discharge from the hospital. He has been continuing the same kind of work.

The medical evidence given by Dr. Vacca was that he first saw the employee on May 24, 1961; that the employee then complained of back pain of several days duration; that the diagnosis made at that time was lumbar osteoarthritis which was based upon the history of back pain and x-rays of the back which were taken at that time; that he was placed on drugs to decrease inflammation and swelling and was seen again a week later when his condition was improved but the back still had pain. Dr. Vacca next saw the employee on September 10th of 1962 when he complained of similar symptoms in the lumbar area of the back; that on this occasion there was no indication of any disc pathology and the employee was again placed on the same medication as before. Dr. Vacca was cognizant of the type of work the employee was doing and was of the opinion he was able to work. Kc next saw the employee in the hospital on September 13, 1962. His treatment while in the hospital has already been stated and Dr. Vacca’s diagnosis was as follows: “It was my impression while Mr. Luketich had difficulties with his back in the past and recently had some symptoms of his back, there was undoubtedly an aggravation of the back condition by the injury sustained at work September 13, 1962. He has a definite diagnosis of lumbar osteoarthritis, but the acute, severe attack he had on September 13 certainly could have represented an acute ruptured intervertebral disc. While myelograms were not done because of relief of symptoms with conservative type measures, there certainly exists the possibility of the above diagnosis.” His final discharge diagnosis was possible herniated intervertebral disc, lumbar osteoarthritis, acute lumbosacral strain or sacroiliac separation. The doctor stated that his diagnosis of a ruptured intervertebral disc was very different from any diagnosis he had made prior to that time.

The employee was also examined by Dr. Ford on March 23, 1964. On that date the doctor’s examination showed that the employee had about one-fourth limitation of his back movement accompanied by some back pain. X-rays were made at that time and when compared to later x-rays made on September 23, 1964, the only difference was that the latter x-rays showed a scali-osos convex to the left which was to be expected under the acute state of his back at that time. The doctor testified that his diagnosis as a result of the employee’s March visit was degenerative arthritis in the lumbar spine with the-'diagnosis by history of a ruptured lumbar disc. He further stated that on the basis of aggravation of pre-existing degenerative arthritis and degenerative discopathy, a degenerative disease of the lumbar disc, the employee had fifteen to twenty percent permanent disability of the man as a whole. The doctor’s conclusion as a result of the employee’s September visit was that the employee now had evidence both by history and on examination of a ruptured lumbar disc on the right and he recommended hospitalization for the purpose of a lumbar myelogram and, depending upon the results of that, probable disc surgery and a possible spinal fusion. Upon being asked a hypothetical question as to the causal connection between the incident and the condition he found, Dr. Ford’s opinion was that the accident was “ * * * a competent causing factor of the disc rupture on the basis of pre-exist-ing degenerative change in the disc.” He explained this diagnosis as meaning that the ligament that contained the disc in the employee’s back had some weakness but the trauma caused the disc to protrude or rupture. It was the doctor’s opinion that the employee’s disability should be thirty to thirty-five percent of the man as a whole. Upon cross-examination and with his recollection refreshed from his records, Dr. Ford also testified that the employee visited him on November 25, December 8 and December 29, 1952, with complaints of lower back pain with pain radiating down the right hip to the thigh. On those occasions the pain was stated to have begun eight to ten days prior to the earliest visit. The employee also stated that when the attacks of pain became acute one leg would feel longer than the other as a result of his back seeming to slip out of place. The doctor recommended lumbo sacro belt along with medication and made a diagnosis of a ruptured lumbo sacro disc on the right side. He also stated that his examination in September of 1964 reflected a re-injury to the back with the same picture of symptoms that he had found previous to that time. Dr. Ford stated that he could not say that this accident was the sole cause of the employee’s back injury as he had consistently maintained that there was some pre-exist-ing disease, but he did state that he attributed the disability he found to the accident that occurred on September 13, 1962. He also stated that with reference to his diagnosis prior to this incident of a disc injury that “ * * * In 1952, according to my records, I thought it was the lumbo-sacral disc. It is possible that it was the lumob-sacral (sic) disc then and could be another one now, or could be the same one continuing to cause symptoms after the twenty-seven year period.” Dr. Ford testified that in his opinion this incident caused “severe trauma”. After making that statement the employer’s counsel asked him the following questions and he gave the following answers : “Q. Doctor, in a man, a healthy man with no history of back condition and who lifts beef such as this quarter of beef, weighing approximately one hundred twenty-five pounds daily, and numerous times every day, would this be a severe trauma in your opinion? A. I consider this amount of weight, lifting is certainly a stress, but we define trauma as an abnormal stress and I consider this to be trauma. Q. In a man who had a good back with no symptoms, such as this man had, an incident like this, would that be likely to produce the symptoms that he complained of at the time? A. If the man had a good back and was accustomed to carrying such weights, that would not be likely to produce symptoms, in my opinion.”

.Dr. George Scheer examined the employee on May 23, 1963. His testimony and examination was given on behalf of the employer. At the time of this examination the employee denied the presence of any symptoms regarding the back or right thigh. The doctor’s conclusion was that on the basis of his examination there were no findings on which to base a conclusion the employee had a ruptured disc.

After a hearing the referee made an award to the employee and from his decision both the employer and the employee filed applications for review. Upon review the Industrial Commission found for the employee and awarded him forty weeks at $42.-50 per week as permanent partial disability resulting from the accident of September 13, 1962. The award also included two weeks additional compensation at $47.50 per week as a healing period and the sum of $285.10 for medical aid. It also found the employee failed to make a claim against the Second Injury Fund against which the employee had filed a claim. The circuit court affirmed the award. The employee did not file any appeal from the decision of the Commission as to the Second Injury Fund nor from the decision of the circuit court as to that or any other matter.

Upon reviewing cases of this nature the ultimate issue for our decision is whether, viewing the evidence in the light most favorable to the findings and award of the Commission, the whole record discloses competent and substantial evidence upon which the Commission could reasonably base its decision. Mo.Dig., Workmen’s Compensation, '^>1969. The employer contends that such competent and substantial evidence is lacking in the instant case. Its basic theory in this regard is that the employee had a chronic back condition which caused his injury. This contention the employer divides into two separate allegations of error. These are: first, the employee did not carry the burden of proving he had a disability resulting from the accident on September 13th; second, to quote from its brief, “ * * * the incident in question was not such an abnormal or excessive strain as to entitle him to compensation under the law.” In essence these allegations present the same basic contention and we will rule them together.

It will serve no useful purpose to extend this opinion with a review of the case law of this jurisdiction with regard to unusual strains. Those interested in the development of that subject may refer to Crow v. Missouri Implement Tractor Co., Mo.App., 301 S.W.2d 423, and in particular to the opinion of the Supreme Court when that case was transferred as found in 307 S.W.2d 401.

The employer relies upon the following language from Brotherton v. International Shoe Co., Mo.App., 360 S.W.2d 108, 1. c. 114, “ * * * This rules out those injuries which result from the normal stresses and strains of work which are the product of routine stresses combined with inherent weakness or bodily defect, chronic disability, or natural causes.” (Emphasis supplied.) As the evidence stated herein indicates, there was a serious controversy as to whether the previous condition of the employee’s back did, as the employer contends, combine with the stress of this incident to produce the employee’s injury. The employee’s position is that the previous injury to his back was on the opposite side of his back and that this incident was in fact a new injury. We need not decide that issue. This for the reason that even if we concede, arguendo, the existence of the previous injury and that it combined with another factor to cause this injury, the evidence does not show that this previous injury combined with anything that would bar the employee from compensation. As the employer’s own authority (Brotherton v. International Shoe Co., supra) holds, inherent weakness or bodily defects must combine with “routine stresses” in order to defeat the employee’s claim. In the instant case there is no evidence that the stress placed upon the employee’s back on September 13, 1962 was a normal or routine stress. To the contrary, the evidence clearly justifies the Commission in finding that the stress was abnormal to the employee’s work. Routine stresses, so far as the evidence in the instant case is concerned, would be those incurred by the employee as he took the hindquarter of beef from the rail and pivoting, turned in one motion to place it upon the table. That was the evidence as to how such work was usually and ordinarily accomplished. On the occasion of this injury the waste truck or cart was not parked in the usual manner but was so placed that the employee could not complete his continuous motion of lifting the beef from the rail to the table but had to come to a sudden stop in the midst of that motion. It was, this sudden stop that created the abnormal stress.

In this same connection it should be noted that the employer’s effort to rely upon an answer given by Dr. Ford cannot stand the scrutiny of a careful reading of the transcript. As pointed out earlier in this opinion, Dr. Ford testified that the incident in question caused a severe trauma and this trauma caused the disc, already weakened, to rupture. In an effort to alleviate the adverse effect of this testimony, counsel for the employer asked a question which would seem to have little if any bearing upon the issues presented by this appeal. It will be recalled that the employer’s position throughout this matter was that the employee had a “bad back” prior to the incident of September 13th. Despite this, counsel for the employer asked Dr. Ford a question relating solely to a man with a good back, and now seeks to rely upon the doctor’s answer that “If the man had a good back and was accustomed to carrying such weights, that would not be likely to produce symptoms, in my opinion.” In view of the employer’s basic contention in this matter, as well as the admitted bad condition of the employee’s back, such a question and such an answer would seem to be of little value. In any event, this medical witness also testified that the incident of September 13th caused the disc to protrude or rupture in the employee’s back; that he attributed employee’s disability to the incident of September 13th; and that there could have been an entirely new disc injury which resulted from the incident of September 13th. Such testimony clearly negates any unfavorable inference that might be drawn from the one answer upon which the employer relies.

The employer is correct in stating that this case falls within those recognized by the ruling of Brotherton v. International Shoe Co., supra, but is incorrect in stating the manner in which the case does so. Immediately preceding the language from Brotherton upon which the employer relies it is stated: “We now conclude that the unexpected and abnormal strain is the important event. This will usually result from the doing of the work in an 'abnormal manner’ or in doing work which is not routine, but it is not necessarily so. * * ” That is exactly what happened in this case. The position of the waste cart caused the employee to do this work in an abnormal manner and thus an abnormal stress was placed upon his back. It is only in this manner the case does fall within the rule of Brotherton v. International Shoe Co., supra. In any event, and regardless of whether the pre-existing condition of the employee’s back was a contributing cause to his injury or not, it is clear from this record that whatever inherent weakness or bodily defect or chronic disability previously existed in the employee’s back, and even assuming, arguendo, this condition combined with the incident of September 13, 1962, to produce this injury, nevertheless the employee may still recover. This for the reason that the combination (assuming it existed) was with an abnormal strain.

There remains the testimony of Dr. Vacca to the effect that when he examined the employee three days before this incident there was no indication of any disc pathology; that after this incident occurred his diagnosis was herniated intervertebral disc; and that this was very different from any diagnosis he had made prior to that time. Certainly this evidence supports the finding of causal connection between this injury and the incident of September 13.

The judgment should be affirmed and the employee’s motion to dismiss this appeal or transfer it to the Supreme Court is overruled.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed and the employee’s motion to dismiss this appeal or transfer it to the Supreme Court is overruled.

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


text:
    Bryan Keith WILLIAMS, a minor, by and through his next friend, Vera Williams, Plaintiff-Respondent, v. William BOONE, Defendant-Appellant.
    No. 32440.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 17, 1967.

      Eaker & McGuire, Robert W. Henry, Clayton, for defendant-appellant.
    Samuel Goldblatt, Satz & Ponfil, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This appeal arises out of an action for damages resulting from plaintiff, a minor two years of age at the time this incident occurred, being struck by defendant’s automobile. The judgment appealed from is for $4,250.00. Plaintiff submitted his case upon the theory defendant failed to keep a careful lookout. The defendant contends the trial court erred in overruling his motion for directed verdict offered at the close of all the evidence in the case. The facts that follow in this opinion are those bearing upon that issue and are stated in the light most favorable to plaintiff.

The physical facts surrounding the area where this accident took place are important to the decision. This accident took place in the City of St. Louis on Clara Street just north of its intersection with Wabada. There were automobiles parked along the east side of Clara just north of the corner of the intersection. The first of these was just north of the corner and with the second parked immediately in front of it. There was no space between these automobiles as they were parked. A third was parked with its rear end one and one-half car lengths from the front of the second and with at least two other automobiles parked close together ahead of it. There was testimony that a car length was 17i/2 feet. We will hereafter refer to the automobiles parked at the east curb of Clara by their number with the first being that closest to the Wabada intersection. Defendant was driving north on Clara at a speed of about five miles per hour. The right side of defendant’s automobile was about one foot from the left side of these parked automobiles.

There are certain other facts about which there is no dispute. Defendant was looking straight ahead and traveling at about five miles per hour. He did not see the plaintiff until impact with the right front of his automobile. Defendant brought his automobile to a stop immediately, continuing, according to the evidence, ■only about one foot after impact

There is heated controversy as to plaintiff’s location and movements immediately prior to impact. The evidence with regard to this issue is fragmentary at best and ■complicated by the fact that one of the witnesses whose testimony is of importance to that issue repeatedly changed her story. What happened was that the defendant and Mrs. Smith, his daughter, were called by the plaintiff in his case in chief. Mrs. Smith was riding with her father on the •day of this occurrence and was seated in the right front seat of the automobile. On direct examination she was asked if she Rad signed a statement regarding this accident and replied that she had not. She-was then asked whether she saw the plaintiff prior to the impact and answered that •she did not nor did she yell to her father to watch out for the little boy. Her further testimony was that there was no open •space between the cars parked at the east curb of Clara at all. She was then questioned as to whether or not she remembered giving certain specific answers to a person who came by her home to investigate this accident and who took a statement from her which she signed. Upon being confronted with this statement and being questioned sentence by sentence as to its contents, her testimony was that while she remembered many of the unimportant answers such as where she lived, her name, and whether she was in the car, she did not remember giving any of the answers read to her from the statement which were contradictory to the evidence stated above that she did not see plaintiff prior to impact. However, upon cross-examination she was asked if she had not seen the plaintiff before the accident and her answer was “Yes, I seen him.” Out of the presence of the jury and while in recess the court and counsel discussed the situation created by this witness’s contradictory testimony. The court directed certain pertinent remarks to the witness cautioning her against committing perjury and admonishing her to tell the truth when she returned to the stand. When the recess was over and in the presence of the jury the witness was again asked if she saw the plaintiff before the accident. She stated she 'did see him and admitted this testimony was in contradiction to that she had previously given and to the information she had given counsel during his investigation and preparation of the case. In response to questions she then testified defendant was driving about five miles per hour when a boy ran out from the east side of the street; she told her father “Look out”; she had no estimate of her father’s speed at the time of impact; and that the defendant’s automobile was moving at impact but stopped immediately thereafter. Her further testimony was that the cars along the east side of Clara were parked in such a way that there were no spaces between them. The confusing nature of her testimony on the issue in which we are specifically interested may be illustrated by the following excerpt from her cross-examination: “Q. I want you to tell the Court and jury where your father’s automobile was located with reference to the boy when you first saw him. A. Well— Q. How many feet separated the boy and the nearest part of yóur father’s car when you first sighted the boy? A. I would say— Q. Mrs. Smith, didn’t you tell me in the preparation of this lawsuit that the front of your father’s car was half a car-length? A. That’s right. MR. GOLDBLATT: Your Honor, I’m going to have to object to that, he is leading the witness and putting words— THE COURT: He may. MR. McGUIRE: I am impeaching my witness. THE COURT: It’s not your witness; it’s Mr. Goldblatt’s witness and you are cross-examining. This is not a party. You may resume your questions. MR. McGUIRE: I would like the record to further show impeachment here and on the basis of surprise, Mr. Reporter. Q. You told me, Mrs. Smith, from the outset of my preparation of this lawsuit that the front of your father’s car was no greater distance than one-half car-length from that youngster when you first saw him, is that correct? A. That’s right. Q. You further told me that the youngster was running from east to west and passing between two parked cars at the east curb, did you not? A. That’s right. Q. Didn’t you further tell me that at the time you first sighted the boy he was at a point opposite the left front and in motion west-wardly? A. That’s right. Q. And you yelled, ‘Look out, dad’? A. That’s right. Q. And he applied the brakes immediately? A. Yes. Q. And was stopped or nearly so at the time of this accident? A. Yes.” In any event, this witness gave no other testimony placing the plaintiff prior to his entry into the street nor any that related to the manner in which plaintiff came into the path of defendant’s automobile. Neither did she give other testimony enabling the jury to fix plaintiff’s position when she first saw him; that is, whether he was at the curb or at the left front of the line of parked automobiles, or whether he was at the back of the third parked automobile or at the front of the second or someplace in between, or whether he came out from between other automobiles more closely parked as defendant contended. Her testimony failed to describe the manner in which plaintiff was traveling as to whether his path was straight, diagonal, erratic or whatever except that he was going east to west.

The defendant’s theory upon this issue was dependent upon the testimony of the defendant’s witness Hutson who was operating an automobile following defendant. He testified that he witnessed this accident; that his automobile was “right behind” defendant and that there was a space of about one car length between the second and third parked automobiles. Of course, plaintiff is entitled to so much of defendant’s evidence as aids his case and is not in conflict with his basic theory. Cognizant of this rule, plaintiff places particular reliance upon Hutson’s testimony that he saw one child run across the street about a second before the plaintiff followed, and his affirmative answer to the question: “From where you were a car behind Mr. Boone’s car, you could have seen the boy, is that correct?” (Read in context it is clear the words “the boy” in this question referred to plaintiff.) However, Hutson went on to make it clear while there was a space between the second and third parked automobiles of about one car length where he could see to the curb, he did not see plaintiff as he traveled from the curb to the left side of the parked automobiles but only saw plaintiff when he came out into the lane of traffic from the left corner of an automobile parked at the curb; that the plaintiff ran out from between the fourth and fifth parked automobiles and not from the vacant space between the second and third; that plaintiff was not then as tall as the fender of the fourth automobile; that there was not “over a foot” between the left side of the fourth parked automobile and the right side of defendant’s automobile; and that when stopped the front of defendant’s automobile was about one foot past the rear of the fifth automobile parked along the east curb of Clara.

The evidence given by the police officer who investigated this accident and who was called by the defendant was that when stopped after impact defendant’s automobile was thirty to forty feet north of Wabada Street with its front end five to seven feet in front of the front end of the second automobile parked along the east side of Clara.

The only other evidence that bears upon this issue was that at the time of this occurrence plaintiff was two years old. The only testimony as to his height at the time of this occurrence other than that given by Hutson to the effect plaintiff was not so tall as to be seen over the fender of the parked automobiles is contained in the following excerpt from the transcript. The plaintiff’s mother was on the stand. “Q. I think you probably would be the best person in the world to indicate to me, the Court and the jury, to walk out here, please, and place your hand at a level above this floor that would indicate the height of your son on the day of the accident; show us about how tall he was. A. (Witness indicates.) Q. He was that high off the ground on the day of this accident? THE COURT: Her hand is not as high as yours by any means. Before then you had placed your hand at eye level? Q. About that high ? THE COURT: See how many inches above the level of that table. Maybe counsel can agree. MR. GOLDBLATT: About two and a half inches above the table.” The height of that table was never otherwise referred to in the evidence. The physician who treated plaintiff testified he did not take any measurement of plaintiff’s height.

We hold the defendant’s contention has merit and, under the facts as they appear from this transcript, must be sustained. The burden was on the plaintiff to show the facts and circumstances essential to the maintenance of the negligence charged. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316; Harris v. Lane, Mo.App., 379 S.W.2d 635 [ 1-7]. It has been repeatedly held that it is error to submit a case based upon alleged failure to keep a lookout unless there is evidence from which the jury could find that in the exercise of the required degree of care the party so charged could have seen the person or obj ect before he did see it. Levin v. Caldwell, Mo., 285 S.W.2d 655; Hawkeye-Security Ins. Co. v. Thomas Grain Fum. Co,, Mo. App., 407 S.W.2d 622. In the instant case the plaintiff did not bear this burden in that the evidence in this case fails to show defendant could have seen plaintiff before he did.

In so stating we accept the plaintiff’s contention the evidence of the investigating police officer as to the position of the front of defendant’s automobile as it was stopped after traveling one foot after impact, when combined with favorable excerpts taken from the testimony of other witnesses, would authorize the jury to find the plaintiff ran out into defendant’s path from the space of one and one-half car-lengths existing at the east curb of Clara at a point from four to six feet in front of the second parked automobile. However, there is no evidence from which the jury could find the defendant could have seen the plaintiff prior to the latter’s emergence from the left side of the line of parked automobiles. The plaintiff insists defendant could have seen him as he left the curb of Clara. We cannot so hold. There was no testimony from which the jury could infer that the defendant, by looking over the front of the second parked automobile, could have seen plaintiff, a two-year-old of unspecified height, as he left the east curb of Clara or at any time prior to his reaching the left side of the second parked car. The only evidence on this issue was diametrically opposed to that theory.

Plaintiff seeks to establish that the witness Smith, a passenger in defendant’s automobile, first saw him when he was one-half car length from defendant’s automobile. As is made clear in the excerpt from the testimony given by the witness Smith set out in this opinion, she was not testifying as to facts. Except for the question “How many feet separated the boy and the nearest part of your father’s car when you first sighted the boy?” — a question which for some unimaginable reason she was never given time by counsel to answer — the answers upon which defendant now seeks to rely were given to questions directed to an entirely different matter; i. e., the attempt to attack her credibility by asking her what she had said on a previous occasion. The very form of each question so shows. Each time the question asked her was, in effect, “Did you so state earlier ?” or “Did you tell me this on another occasion?”. Each time her answer was in effect “Yes, I did so tell you” or “Yes, I did so state”. Read in the context of all of her testimony and having in mind that this witness had repeatedly changed her version of this accident during the trial, it is clear this witness was never asked to testify as to the facts stated in the questions and, of course, did not do so. It was apparent to all that instead of testimony being elicited from her as to the relative positions of the parties, the credibility of the witness was being attacked. Counsel clearly understood that is what he was doing and indicated this understanding by his statement that by these questions he intended to show “impeachment”. This record does not support plaintiff’s contention the witness Smith testified plaintiff was half a car-length from defendant’s automobile when she first saw him.

This judgment must be reversed and the cause remanded to the trial court with directions to enter its order sustaining the defendant’s motion for directed verdict offered at the close of all the evidence in the case.

PER CURIAM:

The foregoing opinion by BRADY, C, is adopted as the opinion of the court. The judgment is reversed and the cause remanded to the trial court with directions to enter its order sustaining the defendant’s motion for directed verdict.

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