author: PER CURIAM. STOCKARD, Commissioner. PER CURIAM.

text:
    John Wendell SCHEARS, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Appellant.
    No. 48347.
    Supreme Court of Missouri, En Banc.
    March 20, 1962.

      Richard H. Beeson, David P. Dabbs, Paul E. Vardeman, Jr., Robert H. Kendrick, Kansas City, for appellant.
    David R. Hardy, Lane D. Bauer, Donald K. Hoel, Kansas City, S. Preston Williams, Wm. Harrison Norton, North Kansas City, for respondent Sebree, Shook, Hardy & Ottman, Kansas City, Williams & Norton, North Kansas City, of counsel.
   PER CURIAM.

On November 13, 1961, Division Two of this Court adopted an opinion in this case whereby the judgment of the trial court in favor of the plaintiff-respondent was reversed and the cause remanded.

Plaintiff-respondent filed a motion for rehearing or, in the alternative, for transfer to the Court en Banc.

In a per curiam opinion, the motion for rehearing or transfer to the Court en Banc was overruled. The Court, however, transferred the case to the Court en Banc on the Court’s own motion. The case was set for hearing before the Court en Banc on Wednesday, May 2, 1962.

On March 9, 1962, the plaintiff and the defendant Railroad Company filed a joint motion to remand the case to the Circuit Court' of Jackson County, Missouri. It was stated in the motion that the parties had agreed upon a compromise settlement. It was further stated that the parties believed it necessary that the Court en Banc adopt the divisional opinion or retransfer the case to Division Two for disposition.

After due consideration, the Court en Banc is of the opinion that the divisional opinion as well as the per curiam should be adopted by the Court en Banc. Therefore, the following opinion and the per curiam opinion of Division Two are hereby adopted as the opinion of the Court en Banc.

All concur.

STOCKARD, Commissioner.

The Missouri Pacific Railroad Company has appealed from a judgment in the amount of $65,000 (reduced by remittitur in the trial court from the jury verdict in the amount of $85,000) in respondent’s action under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., for personal injuries.

Appellant does not contend that a sub-missible case was not made. A jury could reasonably find from the competent evidence the following facts. Respondent was employed as a “carman helper-oiler” at what is known as appellant’s “second train yard” at Kansas City, Missouri. He and two other employees were engaged in rolling a 55-gallon barrel of oil (weighing 425 pounds) up a ladder-type skid onto a railroad section car or what was referred to as a push car. Respondent was at one end of the barrel, another employee was at the other end, and the third employee' was at the middle. Oil had leaked from barrels in the area and at the place where the work was being done the ground was oily and slick. When the barrel was being rolled up the skid respondent’s foot slipped on the oily ground and he was thrown into a “twisted” position, the barrel came over onto his side of the skid, and while in the “twisted” position he gave a “heave” or “hard push” to straighten the barrel and sustained a hernia of his diaphragm

Appellant contends that the trial court “erred in admitting hearsay testimony of plaintiff’s witness, Dr. William Duncan, of the history given him by plaintiff and of plaintiff’s past symptoms and treatment,” and that it “further erred in permitting Dr. Duncan to testify that in his opinion plaintiff suffered a traumatic hernia on August 24, 1956, because said opinion was based on said hearsay statements of plaintiff.” We shall set out the entire occurrence giving rise to these contentions, but we shall rule specifically only on the first.

Dr. William Duncan was not a treating doctor but examined respondent on March 18, 1960 three and one half years after the occurrence of the incident giving rise to the cause of action for the purpose of giving expert testimony at the trial. After qualification as an expert he was asked on direct examination whether “any part of your examination, in whole or part, [was] dependent upon the history of the patient” and he replied that it was. He was then asked to “give the jury the history that was given you which formed a basis in part for your diagnosis.” Appellant objected to the testimony on the ground that it constituted hearsay, and after a discussion between the court and counsel, some of which was off the record, the court ruled that he would “sustain the objection as to how the accident occurred.” Counsel for respondent then explained to the doctor that he “should not give any history of how the accident occurred, but you may give the history that you acted upon, other than that.” The doctor stated that respondent “gave a history of an injury to his stomach and his chest” which occurred on August 24, 1956. Counsel for respondent said: “Now go ahead, Doctor. You may start with how he felt after the accident, any history that was given of that.” The doctor then testified as follows: “He described a twisting, straining injury to his chest and his abdomen. He states that shortly after this he became sick to his stomach, he became very weak, cold and clammy and rather severe pain in the lower chest on the left side and the upper abdominal area. This discomfort persisted and several days later he was admitted to St. Mary’s Hospital with bleeding from the intestinal tract, pain in the lower chest and left upper abdomen. He had blood transfusions. The X-ray revealed that he had twenty per cent of his stomach into-his chest cavity. He was dismissed and again admitted to St. Mary’s in May of 1957 with repeated hemorrhage from his intestinal tract. . The X-ray revealed at that time that the hernia was present. There was some thickening of the stomach with no evidence of ulcer. He was admitted to the Missouri Pacific Hospital where the hernia in his diaphragm was repaired on July 26, 1957. He apparently made an uneventful recovery from the surgical procedure. He was again admitted to St. Mary’s Hospital on December 15, 1957 where a diagnosis was then made of a duodenal ulcer with hemorrhage from the ulcer and spasm of the stomach. There was nausea, vomiting of blood, weakness, bloody stools and fainting spells. He was dismissed and readmitted to St. Mary’s Hospital on two subsequent occasions, one for influenza and one for hemorrhaging from the ulcer with bloody stools, weakness and anemia. He had an interval subsequent history of May 27, ’59 when he sprained his back, with no apparent connection with his abdominal bleeding.” The doctor stated that some of the above history was obtained from respondent and some was obtained from the hospital records.

The doctor then was asked by respondent’s counsel to relate “any past health history that was given to you or that you got from the hospital records.” Appellant “renewed” its “original objection” and was overruled. The doctor then testified: “The past history of this patient was irrelevant except that he had a previous history of indigestion and gas which he had had for some years prior to the present injury. He states however that he would go for as long as one and a half years without any pain or discomfort. He states that when he did have pain and discomfort it was due to stress and strain of business worries. He states at the time of the present injury he was having no abdominal or gastrointestinal discomforts and was symptom free for one year prior to the present injury. He states that even while he was working at the railroad yards he had a thirty-acre farm, he was doing heavy farm chores without discomfort.”

The doctor then testified to the complaints made by respondent at the time of the examination and of which appellant does not complain. The doctor subsequently testified that he made a diagnosis of respondent’s condition, which was based in part on the statements made by plaintiff to him, as follows: “(H)e had a traumatic hiatus hernia ⅜ * * incurred on August 24, 1956 * * * with subsequent repair of the hernia followed by secondary complications of an active duodenal ulcer * * associated with gastritis * * * and a duodenitis, which is also an inflammation of the upper portion of the small bowel. He has recurrent episodes of gastrointestinal bleeding with symptoms of pain, nausea and discomfort in the left chest and left upper abdomen. He has bilateral inguinal hernias which could be the result of the present injury and eventually should be corrected surgically. [He also has] nervousness, apprehensiveness, quite severe, secondary to the * * * traumatic hernia. He had thickening of the pleura, which is the lining of the chest, of the left side of the chest' and apparent adhesions of the pericardium or lining of the heart to the top part of the diaphragm, also secondary to his original diagnosis.” The doctor further testified that “It was my opinion that the complaints of [respondent] were entirely in keeping with the nature of the injuries sustained and subsequent course of events which have happened to [him] since the injury.” He then expressed the opinion that future medical treatment would be needed and that respondent was not able to resume his regular type of employment. Following the above testimony, counsel for respondent submitted to Dr. Duncan a lengthy hypothetical question in which the doctor was asked to assume as true all or substantially all of the facts previously related to him by respondent, along with many other facts, and in answer thereto the doctor stated that in his opinion respondent’s hiatus hernia was “a result of his injury as of August 24, 1956.”

The testimony of Dr. Duncan as to what respondent told him concerning his past history and past physical conditions and the treatment received was hearsay, and appellant’s objection thereto was timely and adequate. Many cases from Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89, to Hunter v. St. Louis Southwestern Railway Company, Mo.Sup., 315 S.W.2d 689, establish the rule, which we believe to be best stated in Holmes v. Terminal R. R. Ass’n of St. Louis, 363 Mo. 1178, 257 S.W.2d 922, 926, as follows: “A physician, in stating his expert opinion on a patient’s condition, may testify to what he personally observed and also to what the patient said (an exception to the hearsay rule) concerning his present, existing symptoms and complaints. However, he may not base his opinion upon or testify to statements of the patient with respect to past physical conditions, circumstances surrounding the infury, or the manner in which the injury was received.” (Italics added.) Cited in support of this statement are Evans v. Missouri Pac. R. Co., 342 Mo. 420, 116 S.W.2d 8; Corbett v. Terminal R. Ass’n, 336 Mo. 972, 82 S.W.2d 97, 102; Nagel v. Thompson, 237 Mo.App. 1061, 170 S.W.2d 416; Zarisky v. Kansas City Public Service Co., 239 Mo.App. 396, 186 S.W.2d 854; and Phares v. Century Electric Co., Mo.App., 131 S.W.2d 879. See also, Magill v. Boatmen’s Bank, 288 Mo. 489, 232 S.W. 448; Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780; Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 238 S.W.2d 674; Huffman v. Terminal Railroad Association of St. Louis, Mo. Sup., 281 S.W.2d 863; Jones v. Terminal R. R. Ass’n of St. Louis, Mo.App., 246 S.W.2d 356; Garrison v. Campbell “66” Express, Inc., Mo.App., 297 S.W.2d 22; and the cases cited in the annotations in 67 A.L.R. 10, 80 A.L.R. 1527 and 130 A.L.R. 977. We can reach no conclusion but that the admission into evidence, over the timely objection of appellant, of that testimony of Dr. Duncan in which he recited to the jury what respondent had told him concerning his past history and past physical conditions and treatment constituted error. This leaves only the question of whether we can say this error was not prejudicial to appellant.

Appellant took the position throughout the trial that the accident described by respondent did not occur, and it presented evidence from which that fact could "reasonably have been inferred. It also took the position that the hiatus hernia, which respondent admittedly had, was not of traumatic origin. Therefore, the previous history in the form of the hearsay statements recited to the jury by Dr. Duncan had a direct bearing on the essential and principal issue in the case, particularly when Dr. Duncan started his hearsay testimony by stating that respondent “gave a history of an injury to his stomach and chest” occurring on August 24, 1956, the date respondent claimed the accident occurred, and that respondent “described a twisting, straining injury to his chest and his abdomen,” and then recited subsequent incidents and conditions all directly relating back to or stemming from said occurrence. It has uniformly been held that incompetent evidence on a material issue is presumed to be prejudicial, Holmes v. Terminal R. R. Ass’n of St. Louis, supra at p. 927, unless clearly shown to be otherwise, Zarisky v. Kansas City Public Service Co., 239 Mo.App. 396, 186 S.W.2d 854, and the burden of so showing is on the respondent. Casto v. Railway Express Co., Mo.App., 219 S.W.2d 276.

Respondent first asserts that in the argument portion of its brief appellant “limits the history complained of to four statements [of past physical conditions] that Dr. Duncan testified that plaintiff told him” and to a statement of the doctor as to what was revealed by an X ray. Respondent then says that “in connection with each one of the above-mentioned statements testified to by Dr. Duncan, there was competent and admissible testimony in the case prior to Dr.-Duncan’s testimony.” He then asserts that “defendant certainly could not have been prejudiced by Dr. Duncan’s statement of this portion of the history given him by plaintiff as an aid to Dr. Duncan’s understanding of the case and in evaluating plaintiff’s present complaints.” We do not agree that appellant has so limited its contention of error. Appellant’s point referred to the entire incident. When the point is sufficient to present the issue, as it is in this case, the appellate court will read the evidence in the transcript pertaining to the entire incident whether or not that evidence is all set out verbatim in the argument portion of appellant’s brief. However, the result we reach concerning the prejudicial effect of the hearsay testimony does not turn on the issue of whether plaintiff had or had not previously testified to the same previous physical conditions and treatment.

Respondent cites and relies primarily on three cases. The first is Oesterle v. Kroger Grocery & Baking Co., supra [346 Mo. 321, 141 S.W.2d 780, 782]. There the examining doctor testified concerning the conditions he found at the time of the examination, but in the preliminary interrogation he stated that “for a correct diagnosis it is necessary to have the history of the patient —a ‘short history of his past life as to illnesses and accidents.’ ” The opinion then points out that “He [the doctor] did not repeat the history he received nor is it argued or inferred that such history was in any respect other than that included in the hypothetical question,” which was based on competent evidence. (Italics added.) The contention of appellant on appeal was that “it is improper to permit in evidence an opinion based on the history of a patient’s case.” This court held: “It has long been settled an expert witness may base a competent opinion upon matters within his personal knowledge or observation, or upon competent evidence in the case, or upon both. Likewise it has been consistently held a physician may not base an opinion' on the previous history of a case as received from the patient. * * * The word history as it is used covers the statements of a patient to the doctor about matters in the past, not present complaints. Such a history is within the hearsay rule and therefore is not a proper foundation for an opinion which must be based on competent evidence. If, however, the so-called ‘history’ is made up of facts which in themselves are competent evidence, and which are in evidence, then any objection to the use of such ‘history’ must fall. On the other hand, where the opinion is based partly on the facts in evidence and partly on facts related by the patient to the doctor which are not in evidence, then of course the opinion is not competent. * * * In the instant case the doctor’s opinion was based on facts in evidence assembled in the hypothetical question and was competent.” This case does not consider or rule on the prejudicial effect of an examining doctor reciting to the jury over proper objection hearsay statements of the plaintiff pertaining to past history and physical conditions.

Respondent next cites Huffman v. Terminal Railroad Association of St. Louis, Mo., supra, [281 S.W.2d 863, 871], and asserts that it “follows the Oesterle case and holds that it is not prejudicial error to allow doctors to testify to the history given them by the plaintiff, when such testimony is otherwise in evidence.” There an examining physician testified that plaintiff complained to him of pain in the left shoulder and over the left shoulder blade and of some stiffness in the left shoulder, that if the plaintiff turned his head to the side he had some aggravation of pain in the shoulder, and that he complained of constant weakening pain in the lower part of his back,, at times acute. The reported opinion does not reveal whether or not there was an objection to this testimony at the time it was given on the basis that it consisted of hearsay statements as to past physical conditions. The complaint on the appeal was that the physician “was permitted to base his opinion as an expert as to the cause of plaintiff’s physical condition upon statements of plaintiff to the witness with respect to * * * past experiences of pain.” The opinion then sets out the rule previously quoted from Holmes v. Terminal R. R. Ass’n of St. Louis, supra, including the statement that the physician “may not * * * testify to statements of the patient with respect to past physical conditions.” It was then held that if it be “assumed” that the facts which the doctor testified plaintiff had stated as to his physical condition in some instances referred to plaintiff’s experiences in the past, the plaintiff had testified to substantially the same thing “detailed by the doctor as the bases in part of his opinion,” and therefore “it would seem the objection that ‘history’ of previous conditions of pain was prejudicially permitted as the basis in part of the physician’s opinion must fall.” (Italics added.) This case did not consider or rule on the prejudicial effect of an examining doctor reciting hearsay statements of prior history and physical conditions over proper objection thereto.

The third case is Hunter v. St. Louis Southwestern Railway Company, supra [315 S.W.2d 689], That case presents the precise situation as the Huffman case except that the opinion of the examining physician was expressed in a deposition and offered in evidence after the plaintiff had testified to the same past history considered by the physician in arriving at his opinion.

Whatever may be the effect of these cases, under the aggravated circumstances of this case, as to whether the admission into evidence of the opinion of Dr. Duncan was prejudicial, they do not hold that it is not prejudicial error for an examining physician to recite to the jury, over timely and adequate objection, the hearsay statements of the plaintiff concerning past history and past physical conditions and treatment.

We previously pointed out that the hearsay events recited by Dr. Duncan had a direct bearing on the principal issue in the case and that this issue was highly contested. We do not have the situation shown in Pope v. St. Louis Public Service Company, Mo.Sup., 341 S.W.2d 123, 126, where a hearsay statement by a doctor as to what the plaintiff said was the cause of the injury was held not to be prejudicial because “the cause of the injury had been testified to in detail and was not seriously controverted during the trial.” It was pointed out in United States v. Nickle, 8th Cir., 60 F.2d 372,, 374, that it may fairly be assumed that one who is ill and goes to a physician for treatment will truthfully state such facts as is necessary and desirable for the physician to prescribe for him, but that there is no such inducement when one goes to a physician for the purpose of qualifying him to testify in a lawsuit. The purpose then is not to enable the doctor to effect a cure but to qualify him as a favorable witness. Thus, the valid and wholesome reason for the rule announced in the Holmes case and the others previously cited becomes quite evident. In Chicago & N. W. Ry. Co. v. Garwood, 8th Cir., 167 F.2d 848, 859, an examining doctor was permitted over objection to recite to the jury the statements of plaintiff as to his prior physical condition, and the court there said: “Since it is clear that the doctor did not examine the appellee for the purpose of effecting a cure of his injury but only to qualify himself as a favorable witness, the doctor’s testimony as to the history of the case given him by appellee was inadmissible because of hearsay. [Citing cases.] The fact that the doctor’s testimony repeated symptoms referred to by the ap-pellee or other witnesses does not necessarily cure the error.” Then quoting from the Nickle case, it was said: “Any one familiar with the trial of cases knows that the history of a patient, testified to by a physician, is frequently much more impressive than the same history given on the stand by the plaintiff himself.” Apparently respondent’s position is that the recital by the doctor of the hearsay statements was merely cumulative evidence, but in the correct sense this is not true. It was corroborative. Gough v. General Box Co., Mo. Sup., 302 S.W.2d 884, 892; Hayes v. Kansas City Southern Ry. Co., Mo.Sup., 260 S.W.2d 491; 32 C.J.S., Evidence § 1016. The admission of incompetent testimony, even though it be to the same effect as competent testimony otherwise in the case, has frequently resulted in the reversal of a judgment on the ground that it was prejudicial. See Kitchen v. Wilson, Mo.Sup., 335 S.W.2d 38; Gough v. General Box Co., supra; Stratton v. City of Kansas City, Missouri, Mo.Sup., 337 S.W.2d 927; and Wallendorf v. Rensing, Mo.Sup., 329 S.W.2d 779.

As a general rule an expert witness will be permitted to state the reasons, if otherwise competent, upon which his opinion is premised. But when those reasons are based in part on hearsay, as far as the witness is concerned, the accepted and proper way to present in evidence an opinion of an expert witness is to present competent evidence of those facts from some proper source, and then submit them to the expert witness in a hypothetical question along with other relevant matter. The above general rule cannot be used as a vehicle to bring before the jury incompetent testimony, or to provide the means of improperly reciting to the jury for the purpose of emphasis incompetent corroborative testimony of essential and disputed facts or of facts directly bearing on essential and disputed issues. This is what was done in this case. We cannot determine what effect the erroneous hearsay testimony of Dr. Duncan previously set out may have had in the jury’s determination of the highly contested and principal fact issues of this case, and therefore we cannot say that under the circumstances it is unlikely that the testimony was prejudicial.

One further contention of respondent deserves comment. He argues in his brief that Dr. Dale Bennett subsequently “testified to the extensive history given him by plaintiff without objection,” and that therefore appellant waived its objection to the recital of hearsay statements by Dr. Duncan. We note that respondent does not assert that if objection had been made the trial court would have changed its ruling on the admission of such testimony. In a similar situation this court held: “We have said that where a party has seasonably objected to evidence of a certain character by one witness and his objection is overruled, he is not required or expected to repeat his objection when testimony of the same character by another witness is offered.” Holmes v. Terminal R. R. Ass’n of St. Louis, supra, at p. 926. This is particularly true when, as in this case, the trial judge heard arguments of counsel on the issue of whether the testimony was admissible and made a firm ruling based on the principle involved.

Since the cause must be remanded for a new trial, it is unnecessary to decide the numerous other questions presented, including the contention that it was error to admit into evidence the opinion of Dr. Duncan when it was expressly based in part on hearsay testimony. This is not to say that the remaining contentions of appellant are without merit. Some are based on the wording of instructions, others on the failure of evidence to support a submission or on the admission of evidence, others are based on comments made in the opening statement or in oral argument, and the last pertains to the amount of the judgment. In the event of a new trial, counsel will have the benefit of the contentions made, and if so advised may meet such objections.

For the prejudicial error previously set out the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court en banc.

All concur.

On Motion for Rehearing

PER CURIAM.

In his motion for rehearing respondent contends that the erroneous admission of the hearsay testimony of Dr. Duncan could not have been prejudicial. His contention, in substance, is that “the doctor’s opinion is the important thing,” and that since the expression by Dr. Duncan of his opinion under the circumstances in this case was not prejudicial error under the rule of the Oes-terle, Huffman and Hunter cases (cited in the principal opinion supra), “any objection to his expressing the basis therefor” obviously should fall. We expressly did not rule that the admission into evidence of the opinion of Dr. Duncan was not prejudicial under what we referred to as the aggravated circumstances of this case. In making the above contention respondent ignores the basic theory which permits the admission of an opinion of an expert witness and which excludes hearsay testimony.

As an exception to the general rule that a witness may not express an opinion, an expert witness may do so when qualified as such and when the subject matter is not of such common knowledge to invade the province of the jury. See generally, Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, and Christian v. Jeter, Mo.Sup., 287 S.W.2d 768. However, the expert witness must base his opinion on facts established by competent evidence. Craddock v. Greenberg Mercantile, Inc., Mo.Sup., 297 S.W.2d 541. When the expert witness does not have personal knowledge of those facts he must be asked, by use of the hypothetical question, to assume the truth of those facts, particularly when disputed. See De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184, 82 A.L.R. 1331; Hyman v. Great Atlantic & Pacific Tea Co., 359 Mo. 1097, 225 S.W.2d 734. 1 If the expert witness bases an opinion upon facts, some of which are not within his personal knowledge but which are otherwise supported by competent evidence without those facts being submitted to him in a hypothetical question, then the error is in the form of the question, not that the opinion is based on facts which are not established by competent evidence. That is the situation to which the Oesterle, Huffman and Hunter cases apply. The jury is called upon to evaluate the testimony as to the facts, and to determine what credence it will give to an expert opinion based on those facts. In this case counsel for respondent followed the incorrect procedure of requesting the expert witness to express an opinion based in part on disputed facts of which he had no personal knowledge without submitting them in a hypothetical question. But, in addition, for the obvious purpose of emphasis, counsel sought to fortify the proof of certain facts by having the expert witness recite to the jury facts which were completely hearsay as to him and upon which he could not possibly be subject to cross-examination.

Respondent admits in his motion for rehearing that “The fact that [he] claimed to have suffered an injury in an accident on August 24,1956, with resulting symptoms was the whole basis of [his] case,” and he further admits that there was a dispute in the evidence “as to the date and fact of an accident, and the symptoms immediately following.” This is not the situation where erroneous hearsay testimony was offered to prove an immaterial fact or “a fact over which there was no real dispute.” See Corley v. Andrews, Mo.App., 349 S.W.2d 395, 401; Gaines v. Schneider, Mo.App., 323 S.W.2d 401; and Pope v. St. Louis Public Service Company, Mo.Sup., 341 S.W.2d 123. But, respondent says, everything the doctor testified to was otherwise properly in evidence either because of his personal testimony or hospital records, and therefore the hearsay recital to the jury of these facts by the doctor could not possibly have been prejudicial.

The doctor testified among other things, as shown in the principal opinion, that respondent “gave a history of an injury to his stomach and his chest” which occurred on August 24, 1956, and that “he described a twisting, straining injury to his chest and abdomen.” It is true that in substance respondent so testified, but of course not' in those precise words. However, this is by no means the complete story. Appellant denied that on August 24, 1956, respondent sustained any injury while working for it, and on cross-examination of respondent it brought out that he knew that if he sustained an injury while at work he was supposed to file a report, but that he did not at any time file any such report, and that he made no claim to appellant of an injury or an accident until more than two years after the alleged occurrence, and that was made by the filing of this lawsuit. In attempting to explain why he made no report of his injury respondent testified that it was in the summer of 1957 before he first decided that the incident with the barrel caused his physical condition, but he also testified in attempting to show the severity of his injuries that it was on the day the incident happened that he decided the barrel caused his condition. Respondent also testified that in 1955, about a year before the alleged accident, while painting a jeep he had become nauseated and sick at his stomach with cramping and vomiting. He related that in May 1957 and again in June 1957, while performing work not connected with his employment in carrying rocks and in shoveling sand, he suffered seizures in which he became nauseated and had cramping and vomiting. These symptoms are substantially the same as those described by respondent at the time of the alleged accident which he did not report to his employer and which his co-worker, who was helping to load the barrel, was not even aware had happened. This coworker, respondent’s witness, also stated that after they had moved the barrels approximately one half mile and had unloaded them respondent then mentioned that he thought he had hurt his back, not his chest or stomach. Respondent’s testimony was not such that it would remove all possible question whether the alleged accident occurred and whether respondent’s condition resulted from that accident. After respondent presented this picture with its inconsistencies and qualifications, Dr. Duncan was called to the stand and was qualified not only as an expert witness but as one of the most outstanding specialists in his field and in the community. Then, over objection, Dr. Duncan recited to the jury that plaintiff had told him that he had in fact suffered a twisting, straining injury to his chest and abdomen on August 24, 1956, with certain immediately resulting symptoms. He then related various treatments and hospitalizations, hearsay as far as the doctor was concerned, including the hospitalization for the incident resulting from the rock carrying incident, and he recited these incidents and occurrences in such a way that it left no doubt to the hearer that everything wrong with respondent resulted from a twisting, straining injury which occurred on August 24, 1956. The hearsay story recited by Dr. Duncan consisted in substance of the most favorable facts that respondent had testified to on direct examination, but he made no mention of the facts and circumstances respondent testified to on direct and on cross-examination which tended to cast some question on his story. Dr. Duncan could not be cross-examined concerning the correctness of those facts, and this demonstrates the soundness of the rule concerning the admission of hearsay testimony. No attempt has been made to exhaust the showing of how and in what manner the hearsay testimony of Dr. Duncan was prejudicial. The above is sufficient.

In the motion for new trial respondent places substantial reliance on Corley v. Andrews, Mo.App., 349 S.W.2d 395, 401, which was published subsequent to the preparation of the principal opinion. It was there held that the fact that a doctor, testifying as an expert witness, was permitted to testify as to what plaintiff told him concerning events, complaints and symptoms occurring prior to the doctor’s examination could not in that particular case be said to have been prejudicial because the “evidence was cumulative merely,” a phrase which we think is misleading because in some situations improper cumulative evidence can be prejudicial, and because “the testimony was offered to prove that plaintiff had suffered a myocardial infarction, a fact over which there was no real dispute.” Corley v. Andrews should not be construed to extend the rule of non-prejudicial error beyond its application to the particular facts of that case.

Magill v. Boatmen’s Bank, 288 Mo. 489, 232 S.W. 448, 450, 451, is particularly appropriate to this case. There error was assigned “in admitting the testimony of Dr. Fry, detailing what plaintiff said she had suffered prior to his examination of her.” It was held that the “assaulted portion of Dr. Fry’s testimony was erroneous and constitutes reversible error.” In that case, as here, it was contended on motion for rehearing that the error “resulted in no harm to appellant, as the same facts * * * have been proven by other witnesses.” In a per curiam to that case it was pointed out that the plaintiff’s testimony “was not the same class of evidence sought to be shown by the testimony of Dr. Fry. In other words, the * * * testimony of plaintiff should be classed as direct evidence, while that of Dr. Fry is considered expert evidence.” It was further pointed out that “when counsel introduce a noted specialist, or one standing high in his profession, the jury are expected [at least by the counsel who offers the specialist as a witness] to give his testimony full credit in passing upon plaintiff’s compensation [and we add, the cause of his injury]. If it is based upon matters prohibited by law, and timely objections have been made to its introduction, it becomes the plain duty of this court to reverse and remand the cause for a new trial.” If, as respondent argues, the doctor’s opinion is the important thing, then there is a well-established proper procedure for getting that opinion before the jury for its consideration, but the impressive testimony of an expert witness should not be used, by the employment'of improper hearsay testimony, to bolster the proof of disputed essential facts.

Respondent’s motions for rehearing and in the alternative to transfer the cause to the court en banc are overruled.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, at the relation of Bernard W. KASSEN and Dorothy Kassen, Relators, v. Hon. Paul CARVER, Special Judge, Eighth Judicial Circuit of Missouri, Respondent. STATE of Missouri, at the relation of Keith EARICKSON and Mary Jane Earickson, Relators, v. Hon. Paul CARVER, Special Judge, Eighth Judicial Circuit of Missouri, Respondent.
    Nos. 23605, 23606.
    Kansas City Court of Appeals. Missouri.
    March 5, 1962.

      Jack C. Jones, John Franken, Carrollton, Hendren & Andrae, John E. Burruss, Jr., Jefferson City, for relators.
    Christian Stipp, Carrollton, and Shughart, Thomson, Stark & Kilroy, Harry P. Thomson, Jr., John R. Caslavka, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Relators, by certiorari, seek review of two habeas corpus proceedings which divested them of child custody. Since the two cases are identical they are consolidated. This court has not formally issued the writs of certiorari “ordering up” the records. By agreement the records on the matters involved, from both the circuit and probate courts, have been filed here. The issues have been orally argued and written briefs have been filed. Therefore the technical procedure of issuing the writs has become unnecessary.

A clearer understanding of the facts may be had if they are unfolded chronologically. John Kirby Kassen and Janette Kassen, husband and wife, residents of Carroll County, Missouri and the natural parents of John Kirby, Kimberly Ruth, Pamela and Amy Kassen, all under 14 years of age, were killed in an automobile accident on September 4, 1961. Immediately after the death of their parents John Kirby and Kimberly Ruth Kassen entered the home of their paternal aunt and her husband, the relators, Keith and Mary Jane Earickson. Pamela and Amy Kassen at the same time entered the home of their paternal uncle and his wife, the relators Bernard W. and Dorothy Kassen. In their return to the writ of habeas corpus, relators assert said children entered their homes with the consent of their maternal grandfather D. E. Quaintance and these parties had agreed that a family conference would be held with the probate judge on September 20, 1961, “to attempt to agree as to who would act as guardians for said children”.

John Kirby Kassen, eldest of the four minors, remained in the Earickson home until about September 16, 1961, when he went on a week-end visit to the home of his grandfather, D. E. Quaintance. The boy has remained there ever since and his custody is not involved in the present controversy. The other three minor children remained with their paternal uncles and aunts, the relators, until November 24, 1961, when their custody was placed with the said D. E. Quaintance, by order of respondent Special Judge, in the habeas corpus judgments. Re-lators’ applications for certiorari followed.

On September 20, 1961, the maternal grandfather D. E. Quaintance filed in the Probate Court of Carroll County his formal application praying for the appointment of himself as guardian of the person and estate of these four minors. In this application he alleged that the children were presently in the legal custody of no one, but John Kirby was in the actual custody of applicant, Kimberly Ruth was in the home of Keith Earickson, while Pamela and Amy were in the home of Bernard Kassen, and all living at Norborne, Carroll County, Missouri. The application alleged further that both parents were deceased and the minors were possessed of an estate of an estimated value of $60,000.

On the same date upon which the application was made — September 20, 1961 — the probate court entered an order appointing D. E. Quaintance, guardian of the person and of the estate of each of said minors, fixed his bond at $100,000 and ordered him “to take charge of the person and estate of said minors”. The bond was made and approved on September 20,1961. The court order recites a finding that the minors are residents of Carroll County, and that the applicant “is a suitable person for such appointment”. Relators have invited our attention to and we here note the provision of Section 475.045, subd. 3, V.A.M.S., namely: “If no appointment is made under subsection 1,” (a parent), “the court shall appoint as guardian of a minor the most suitable peo-son who is willing to serve * * * ” (Italics supplied.)

None of relators, who at the time of the hearing, had actual custody of three of the minors, was present at the hearing nor were they served with or given any notice of the proposed hearing for appointment of guardian, although all were residents of and present in Carroll County.

On September 23, 1961, three days after the guardianship appointment, relators having learned of the appointment, filed their petition in the probate court, asking that such appointment be set aside as not having been lawfully granted, and praying appointment of themselves as guardians. On October 4, 1961, this petition was taken up by the probate court and “taken under advisement”.

On October 9, 1961, the said D. E. Quaintance filed in the Circuit Court of Carroll County, two applications for writs of habeas corpus, asking that relators, the actual custodians, be required to surrender and deliver the persons of the three minor children to him “as the duly appointed guardian of the person and estate” of said minors. The two writs were issued. A return reciting the facts substantially as we have related them was made. Quaintance filed an answer to the return setting forth his appointment as guardian and asserting that by reason thereof he was entitled to custody, which relators refused to relinquish, and moved for judgment on the pleadings.

At about this time the resident circuit judge, having become disqualified, the respondent, Hon. Paul Carver, Judge, Eighth Judicial Circuit of Missouri, was enlisted to serve as Special Judge. Judge Carver heard the habeas corpus matters and “took them under advisement”. Thereafter, on October 16, 1961 and before any order had been made as to the habeas corpus, the probate court denied relators’ petition to revoke the order of September 20, appointing Quaintance as guardian and dismissed the petition. On the same day relators filed their application and affidavit for appeal from both the order appointing the guardian and from the order refusing to revoke such appointment. On this same day, October 16th, the probate court entered its finding that relators were “interested persons”, were “aggrieved” by said judgments, fixed appeal bond in the sum of $200 (which was made and approved) and granted an appeal on both matters to the circuit court. While these appeals were pending in the circuit court, respondent Special Judge, on November 24, 1961, sustained the motion for judgment on the pleadings in the habeas corpus proceedings and commanded relators to deliver the custody of the three minors forthwith to the petitioner Quaintance. Relators immediately complied and surrendered custody.

On December 15, 1961, relators filed in this court the instant petitions for writs of certiorari. Therein they ask this court to “determine the legality and reasonableness” of the habeas corpus writs and orders. There is no suggestion in any of these proceedings that these children have not been receiving or likely will not receive good, sufficient and proper care in either the homes of relators or in the home of their grandfather, Mr. Quaintance.

In Missouri the functions of the writ of certiorari have not been the subject of statutory description or definition.. Therefore, we begin with the well-established principle that the writ of certiorari-performs the same office in this jurisdiction as at common law. State ex rel. Shaw State Bank v. Pfeffle, 220 Mo.App. 676, 293 S.W. 512, 515; State ex rel. Iba v. Mosman, 231 Mo. 474, 133 S.W. 38; State ex rel. Tarkio-Squaw Levee District of Holt County v. Crouse, Mo., 319 S.W.2d 660.

“The writ is applicable where the court to which it is directed either has no jurisdiction, or acts in excess or abuse of its jurisdiction, or where there is no remedy by appeal or writ of error”. State ex rel. Lunsford et al. v. Landon, 304 Mo. 654, 265 S.W. 529, 531. A habeas corpus proceeding is not appealable but may be reviewed by certiorari. State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268.

It was stated by Judge Bennick for the St. Louis Court of Appeals in State ex rel. Shaw State Bank v. Pfeffle, supra: “It is not a writ of right, but issues only on special cause shown to the court to which application therefor is made; and ■ such court is vested with a sound judicial discretion, dependent upon the established legal principles applicable to the particular facts of the case, either to grant the writ or to refuse it, as substantial justice may seem to require”. (Italics added.)

We find this statement in Bailey on Habeas Corpus, Section 148: “The party applying for the writ must affirmatively show that he is entitled to the custody -of the child, whether it be a parent, individual, or a corporation organized for charitable purposes”.

In State ex rel. White v. Swink, 241 Mo.App. 1048, 256 S.W.2d 825, the court said: “Again, in In re Stuart, 138 Wash. 59, 244 P. 116, loc. cit. 117, it was said: ‘In all cases and texts that have been cited and that we have examined, it is uniformly held that a writ of habeas corpus will only be granted, in the case of an infant, where the applicant shows a prima facie legal right to the custody of the infant.’ This case further held that the grandparents of a child have no natural or inherent right to the custody of the child”. (Italics added.)

It is not the function of this court under certiorari to pass on the merits of the dispute nor may we interfere even though the respondent judge may have reached a conclusion different from the one we would have reached. The determination we must make is ⅛⅛ — did the respondent judge have jurisdiction to make and under the law was he authorized to enter the judgment which he did enter ? Or stated another way, was there no jurisdiction to divest relators of custody and give custody to Mr. Quaintance, or were such acts in excess of or in abuse of jurisdiction, and does the doing of substantial justice require this court to interfere?

Respondent contends we may only consider the records of the circuit court habeas corpus suits and may not look also to the probate court records. We rule that since Mr. Quaintance in his habeas corpus pleadings based his right to custody upon his appointment as guardian and since he had judgment on the pleadings, it is apparent that such appointment was the primary basis for the circuit court judgment and we may, therefore, also consider the record herein as made by the probate court.

It is respondent’s position that (1) no appeal lies from the appointment of a guardian of a minor by the probate court and (2) even if such an order is legally appealable, such appeal with supersedeas bond will not operate as a stay so as to prevent the guardian from assuming custody of the minor and control of his estate. Relators say that such an appointment without notice to the actual custodians is a denial of due process and it was impossible for the probate court at an ex parte hearing to determine what person was, and hence to be able to appoint “the most suitable person who is willing to serve” as required by Section 475.045, V.A.M.S. It is further relators’ position that an appeal lies from the appointment of a guardian by a probate court and that the appeal, coupled with a supersedeas bond, operates as a stay and precludes such appointee from taking custody until the appeal is terminated.

Article V, Section 16, Mo.Const.1945, V. A.M.S., provides: “There shall be a probate court in each county with jurisdiction of all matters pertaining to probate business, * * * the appointment of guardians and curators of minors * * * Section 472.020, V.A.M.S. incorporates the same phraseology in a statutory enactment.

Letters of guardianship may be issued under Section 475.030, subd. 3(1), V.A.M.S., “Where a minor has no parent living; ” and by Section 475.035, subd. 1, the venue is fixed as “In the county in this state where the minor * * * is domiciled; ”.

In 39 C.J.S. Guardian and Ward § 8, page 19, this statement is made: “Probate courts or courts exercising probate jurisdiction have original and general jurisdiction to appoint guardians of minors; and under the constitutional or statutory provisions of some states, they have exclusive jurisdiction; * * * The Missouri constitutional and statutory requirements place “jurisdiction of all matters pertaining to probate business” with the probate courts, and then lists “the appointment of guardians and curators of minors” as one area of this probate business. It is our opinion, therefore, that in Missouri the various probate courts have exclusive, original jurisdiction to appoint general guardians of minors.

In the matter before us Mr. Quaintance, in his application filed with the probate court for appointment of himself as guardian, stated, among other things, the names and addresses of relators and described them as the persons having actual custody of the minor children. This is in accordance with the provision of the statute (475.-060, subd. (6), V.A.M.S.).

After the application was filed the next step in the orderly development of the proceeding by the probate court would be considering and securing proper service. Section 475.070, V.A.M.S. covers this procedure as follows:

“1. Before appointing a guardian of a minor, notice of the petition therefor shall be served upon the following unless they have signed such petition or have waived notice thereof:
“(1) The minor, if over fourteen years of age;
“(2) The parents of the minor;
"(3) If directed by the court
“(a) Any person who has been appointed guardian or any person having care and custody of the minor;
“(b) Any department, bureau or agency of the United States or of this state or any political subdivision thereof, which makes or awards compensation, pension, insurance or other allowance for the benefit of the ward’s estate;
“(c) Any department, bureau or agency of this state or any political subdivision thereof or any charitable organization of this state, which may be charged with the supervision, control or custody of the minor.
“2. If the minor is over fourteen years of age, there shall be personal service upon him if personal service can be had. Service on others may be had in accordance with section 472.100, RSMo. The court for good cause shown may reduce the number of days of notice”.

The latter part of this statutory provision seems to contemplate service upon all of the persons or agencies mentioned under a, b, and c, and directs personal service if possible be had on the minor, but authorizes service by mail or publication upon all others. (Sec. 472.100, V.A.M.S.). Strictly construed this statute positively requires notice to parents and to the minor if over 14 years of age, and makes it discretionary with the court as to whether or not the actual custodians (and others mentioned) must be served with notice.

We quote from 39 C.J.S. Guardian and Ward § 23, at page 40: “It is very generally required by statute that notice of the application be given to the next of kin or persons having custody of the infant, especially in cases where there are no parents entitled to notice, and even in the absence of a statutory requirement notice to relatives is eminently proper”.

In Daugherty v. Nelson, Mo.App., 234 S.W.2d 353, 362, this court said: “It has. been held that a parent cannot be deprived of the right of custody of a minor child in a guardianship proceeding without notice and an opportunity to be heard, even though the statute authorizing the removal of the parent as a natural guardian docs not expressly provide for notice and a hearing, for such notice is required by the due proc-. ess clause in both state and federal constitutions. (citing cases)”.

Respondent invites our attention to that part of Section 475.020, V.A.M.S., reading: “The provisions of chapter 472, RSMo, unless therein restricted to decedents’ estates, apply to guardianships”. And to Section 472.010(15) of such chapter that “ ‘Interested persons’ mean heirs, dev-isees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered”. Respondent deduces from these provisions, that relators are not such “Interested persons” as to be entitled to an appeal. We do-not agree. We think the statute quoted is-limited to estates of decedents. In our opinion, relators, uncles and aunts and the-persons with actual custody were interested/ parties within the statutory appeal restrictions. The probate court later on, in its recorded action approving and allowing their appeal, so described them.

One of the most treasured and zealously guarded fundamentals of Anglo-Saxon law is that anyone has the right to have notice and an opportunity to be heard before an adverse decision is made in a controversy in which he has a direct interest. Ex parte proceedings are not favored. In this case when the grandfather filed his petition for appointment as guardian, it affirmatively appeared therefrom that relators were close relatives, had actual custody of the minors and resided in Carroll County. Under these circumstances it would have been appropriate and we think fairness required that they be notified and be given an opportunity to be heard on the guardianship question, rather than to be summarily passed over in an ex parte proceeding, taken up instanter and with no hearing and no opportunity to be heard. Such procedure is imprudent and appears to be arbitrary. We think it might in some instances, for example where the actual custodians had been caring for the children for a period of years, be struck down as a denial of due process.

However, in the case before us, the children had been with relators only about sixteen days when the petition was filed and, according to relators, a family meeting had tentatively been agreed upon for the purpose of discussing, and if possible, amicably agreeing upon a disposition, which in turn would be presented to the probate court for approval. Under all these circumstances we shall not rule the probate court judgment to be void because it was to some extent arbitrary, unreasonable and approaching denial of due process. In this connection we observe that the prevailing practice in the vast majority of the probate courts of Missouri in similar situations is to give notice to the actual custodians.

Since grandfather Quaintance predicated his right to custody upon his appointment as guardian, since he had no other legal claim and since the circuit court based its decision thereon, the validity of such appointment and the effect of the appeal therefrom with an appeal bond, is germane to the issues in this case. We have already ruled that the probate court possessed jurisdiction to make the appointment and it is not void for want of due process or for other reasons.

In Missouri, the right of review by appeal is statutory and unless the appeal is authorized by statute it must be dismissed. Section 512.010, V.A.M.S.; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467; Walker v. Thompson, Mo., 338 S.W.2d 114. However, the statutes authorizing appeals shall be liberally construed so as to allow appeals. In State ex rel. Jones v. Davis, 240 Mo.App. 411, 216 S.W.2d 155, 158, this court said: “The above statutes concerning appeals from the probate court are to be liberally construed as the law favors the right of appeal. State ex rel. Goodloe v. Wurdeman, 286 Mo. 153, 159, 227 S.W. 64”. And in In re Dugan’s Estate, Mo.App., 309 S.W.2d 137, 143: “One of the cardinal principles, however, which pervades and hovers over all canons of construction is that statutes providing for appeal are to receive a liberal construction".

Our Statute, Circuit Courts, Judges and Jurisdiction; Section 478.070, V.A.M.S., declares:

“The circuit courts in the respective counties in which they may be held shall have power and jurisdiction as follows: * * *
“(4) Appellate jurisdiction from the judgment and orders of county courts, probate courts and magistrates, in all cases not expressly prohibited by law, and shall possess a superintending control over them, and a general control over executors, administrators, guardians, curators, minors, idiots, lunatics and persons of unsound mind”.

Section 472.160, V.A.M.S., Probate Code, General Provisions; lists 14 specific appealable orders (none of which are here applicable) and then No. 15, as follows: “In all other cases where there is a final order or judgment of the probate court under this Code except orders admitting to or rejecting wills from probate”. This last phrase beginning with the word “except” was added in 1957. The purpose of such amendment “was to exclude appeals from orders admitting or rejecting will— because the code provides for review by suit to contest or establish will”. Judge Leslie A. Welch, Kansas City, 13 J. of Mo. Bar, 148.

Section 472.230, V.A.M.S., Probate Code, provides that upon the filing of the appeal affidavit, bond and approval thereof by the probate court, the appeal shall operate as a supersedeas. Section 472.250, V.A.M.S. provides that when an appeal is taken from the probate court, the circuit court shall try the matter de novo. In re Mills’ Estate, 349 Mo. 611, 162 S.W.2d 807.

It is apparently conceded by all parties that an appeal lies from a probate court order refusing to remove an administrator or guardian, or refusing to revoke an appointment of either. There is no doubt but that this is the law. In re Scott’s Estate, 237 Mo.App. 1260, 173 S.W.2d 115, holds an appeal lies from denial of an application to remove an administrator. Therein the court quoted from the Supreme Court opinion, In re McMenamy’s Guardianship, 307 Mo. 98, 122, 270 S.W. 662, 669, as follows: “Since the opinion of Gantt, J., in Coleman’s Case, supra [Coleman v. Farrar, 112 Mo. 54, 20 S.W. 441], the right to have an appeal (unless it is expressly prohibited by law) from any final judgment or order made by a probate court has never been denied by this court, but, on the other hand, fully sustained * * * An appeal lies from refusal to revoke letters of administration. In re Dugan’s Estate, Mo.App., 309 S.W.2d 137, or from refusal to remove a curator, In re Brinckwirth’s Estate, 268 Mo. 86, 186 S.W. 1048.

Before the present probate code became* effective there were at least two court of appeals cases, holding that no appeal lies from a probate court appointment of a curator for a minor. (Looney v. Browning, 112 Mo.App. 195, 86 S.W. 564, and Smith v. Young, 136 Mo.App. 65, 117 S.W. 628). These decisions were based on a holding— (1) the statutes then existing covering appeals in guardianship cases were in pari materia with the statutes covering administrators and that since those latter statutes specifically authorized appeals from an order refusing to remove or revoke, none existed as to the original appointment, and (2) the appointment of a temporary curator pending appeal was not authorized and the estate might suffer without management, hence a rule of necessity — no appeal.- These cases were specifically overruled by the same court. Ex parte Smith, 197 Mo.App. 200, 193 S.W. 288. There the maternal grandmother, by habeas corpus, sought to take custody from the father. She was armed with a probate court judgment finding the father to be unfit and appointing herself as guardian. In effect at that time was Section 463, R.S.Mo., 1909, allowing appeals from “any final order or judgment of the probate court”, — almost identical with our present statute. The court said: “That the finding and judgment of the probate court here involved is a ‘final order or judgment’ of that court, within the meaning of section 463, supra, we have no doubt”.

If an appeal does not lie from the appointment but only from the order refusing to revoke, a trial de novo may still be had in the circuit court but pending determination of the appeal, rightful custody would rest with the appointee, who would be the duly appointed and qualified guardian. On the other hand, if the original order of appointment is appealable, and the appeal, coupled with the supersedeas bond, stays the appointment and suspends the right of the appointee to act until confirmed on appeal, then he may not be entitled to custody. This is relators’ chief contention.

39 C.J.S. Guardian and Ward § 56, page 86, tells us: “A lawfully appointed general guardian or guardian of the person is entitled to custody of the ward, * * * ”, and in 39 C.J.S. Habeas Corpus § 46, page 586: “An order appointing a guardian for an infant is conclusive of the right of such guardian to the infant’s custody, until reversed by a direct proceeding, and it cannot be assailed in a collateral way by habeas corpus proceedings, except on the ground of want of jurisdiction in the court to make the order of appointment.”

Most lawsuits involve primarily the interests of the contestants. Here the actual participants in the arena are the grandfather on one side, and the uncles and aunts on the other, contesting for the right, privilege and responsibility of managing the substantial estates of these minors and having custody of their persons. But the interests most deeply involved are the interests of the four children. It is their <estate and their welfare that is at stake. It is their well-being that should be the chief concern of the courts.

Manifestly the estates of minors ought to have management and their custody ought to be lodged with someone. Determination of these questions should not be permitted to drift along, held in abeyance to abide the outcome of prolonged litigation. Our laws in some situations, have recognized and provided for these problems. If a minor child has lost its parents, has no estate and is not being cared for, such neglected child may be made a ward of the juvenile court and its custody placed with a proper person. Our laws vest with the juvenile court (circuit court) sufficient authority to act summarily and promptly in such instances. If a child’s home has jbeen broken and its parents are involved 'in a pending divorce suit, the circuit court may place temporary custody even before trial of the divorce case. Our laws are not . so clear where the children have an •estate but no parents. Counsel for relators •suggest that in such situations the public .administrator is empowered to act and is the proper person to take over both the estate and custody. Section 473.743, V.A. M.S. does generally allow such procedure. .However, we know that public administrators are not situated so as to be able to take such children into their homes. Such officials are not blood relatives and would, of necessity, place the minors in either private foster homes or with some public charitable agency. In our case the public administrator has not even made an effort to act. This alternative is out. The choice in this case is between relators and Mr. Quaintance.

Does an appeal lie from the order of a probate court appointing a guardian for a minor under 14 years of age whose parents are dead, and if it does, is such guardian, nevertheless, entitled to take custody from uncles and aunts, pending determination of such appeal, or should an appellate court under certiorari deny such right, when there is no charge that such guardian is not a suitable person? We have concluded after long and careful consideration that whether an appeal does or does not lie from the original appointment, would make no difference in determining this case. For this reason and because the question would be more appropriately presented on an appeal than by certiorari, we shall by-pass it and assume for the purposes of this case that such an appeal does lie. Furthermore, for the same reasons, we shall not here discuss in detail the important question as to the effect of the supersedeas bond and whether it neutralizes a guardianship appointment so as to stop such appointee from acting as guardian and assuming custody of the person and control of the ward’s estate pending appeal.

Only a parent, actual or adoptive, has a natural legal right to custody of a child. In those instances where small children are left with no parents but with a sizeable estate surely some court is empowered to act and to appoint a guardian or temporary custodian with authority to care for them personally pending appeal. Circuit courts have inherent power to appoint receivers and guardians ad litem. But because our legislature has vested exclusive, original jurisdiction in the probate courts to appoint guardians for minors, we believe that those courts are the proper courts to make such appointments, subject, however, to whatever right of appeal exists under our laws. We think further that such appointment should be immediately effective insofar as custody is concerned as against a person who has no legal right of custody. Relators at no time had any right, legal, natural or otherwise, except such as accrued to them by reason of their having actual custody. This would be sufficient, in the absence of a showing the child was not receiving proper care, to defeat an attempt by another person who likewise had no legal or prima facie legal right. A person may be entitled to custody if his claim is greater than the other claimant even though it is not a complete and finally established claim. It is somewhat similar to the status of a finder of lost property. He is entitled to possession until the true owner appears and his right is finally established. It is like a contested election. The winner on the face of the returns and ■certified as such, holds the office with all of its powers and emoluments until the contest is finally decided.

We do not believe that such a prima facie legal claim would necessarily be effective until confirmed on appeal as against another person who not only had actual custody but also a legal claim to custody, as for example, (1) The holder of a juvenile court judgment granting custody, or (2) Judgment of the circuit court awarding custody in a divorce case, or (3) A father or mother. Under these examples requiring such persons to surrender custody would be, in effect, to deprive them of a legal and recognized right in advance of final adjudication. In our particular case relators have no legal right to the custody ■of the children. They had only actual custody and that admittedly on a temporary basis pending the outcome of a family conference with the probate judge. To hold that under such circumstances relators were entitled to retain custody against the claim of grandfather Quaintance, armed with his appointment, would be to hold that a claim based on bare actual custody alone should prevail over a claim bottomed upon an appointment as guardian by a proper probate court. We cannot so rule and this is so, even though the Quaintance' appointment might not be confirmed on appeal. We cannot hold that respondents’ orders in the habeas corpus proceedings were in excess of jurisdiction, or amounted to an abuse of jurisdiction, or are in derogation of substantial justice. Those orders will not therefore be disturbed in these proceedings.

The writs of certiorari are quashed.

SPERRY, C., not sitting.

PER CURIAM.

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

All concur.


author: HUNTER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. W. A. BROOKSHIRE, Defendant-Appellant.
    No. 23411.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.

      W. A. Brookshire, Columbia, for appellant.
    Larry M. Woods, Pros. Atty. of Boone County, Columbia, for respondent.
   HUNTER, Presiding Judge.

Appellant, W. A. Brookshire, on January-29, 1960, in the Circuit Court of Boone County, Missouri, was charged with between January 21, 1960, and January 28, 1960, willfully and unlawfully confining on his farm near Columbia, Missouri, 27 Hereford cows without food, all in violation of' Section 563.680 RSMo 1949, V.A.M.S.

On January 30, 1960, appellant appeared' in the Circuit Court of Boone County,. Missouri, waived formal arraignment and entered a plea of not guilty. The cause was tried on October 12, 1960, and resulted in a jury verdict finding appellant guilty as. charged and assessing his punishment at a. $500.00 fine.

On October 18, 1960, appellant was granted an additional 30 days to file a motion for a new trial, and on November 10, 1960, appellant filed that motion. It was argued on February 8, 1961, and overruled on February 9, 1961. On February 17, 1961, appellant appeared and was sentenced in accordance with the verdict of the jury. Later the same day he filed his notice of appeal to this court.

At all times mentioned, appellant, a practicing attorney for many years, appeared pro se.

Appellant, on this appeal, charges three errors. First, he contends, “The information does not contain sufficient alleged facts to constitute an offense of any kind in 1, 2 and 3.” Neither in his motion for new trial nor in his brief does appellant do more than to make this bare statement. Nowhere has he undertaken to shed any light on this contention by pointing out what elements of the offense are missing or where or in what manner the information is insufficient.

Criminal Procedure Rule 27.20(a), V.A.M.R., provides that a motion for a new trial shall be in writing “and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds •or causes therefor.” Appellant has not •complied with the requirements of this rule. Even so, under our authority to examine for plain errors affecting substantial rights we have carefully examined the information. See Criminal Rule 27.20(c).

The test of the sufficiency of an information is whether it is (1) in writing (2) understandably states the essential facts constituting the offense charged and (3) contains all the elements of the offense set out in the statute and be a bar to a subsequent prosecution for the same offense. State v. Tevis, Mo.App., 340 S.W.2d 415.

The information before us clearly meets the above test, and does contain sufficient alleged facts to charge the offense for which appellant was tried We find no merit in his contention to the contrary.

Appellant next contends the trial court committed reversible error in refusing to direct a verdict for defendant at the close of all the testimony offered by the State and by the defendant “for the reason there was no evidence of any character which showed a violation of any law of the State of Missouri.” In connection therewith appellant argues that it is clear from the evidence that there was no malicious or criminal intent; that the evidence discloses he was badly injured and for some time physically unable to attend to his duties and to the feeding of his animals; that he had a colored man working for him who fed and tended the cattle while the appellant was injured and unable to do anything; that the cattle were not confined; that the cattle died of poisoning or some reason unknown to appellant; and “that the defendant was at every day attempting to obtain sufficient food for his animals.”

At the trial evidence was adduced to the following effect: Appellant owns and occupies a 320 acre farm in Boone County approximately 10 miles south of Columbia, Missouri, adjacent to U. S. Highway 63. On this farm he had approximately 300 head of cattle and about 100 calves. During the time in question several neighbors in driving on Highway 63 by his farm saw numerous head of cattle “down” or dead. Numerous dead cattle could be seen all up and down the hill to the southeast of appellant’s house; also near a fence; in a pond; and near a barn. Complaint of the situation was made to the Prosecuting Attorney. Deputy Sheriff Earl Sebree, on January 28, 1960, was contacted by Dr. Stewart H. Boelsen, an assistant state veterinarian, and they, with others, went to the Brookshire farm. No one was there. At that time 27 dead cattle were counted on the premises. There were additional uncounted dead cattle in the barn. Numerous other cattle were weak. Dr. Boelsen examined many of the weak cattle and took their temperature. They looked for feed without success. They then drove around trying to locate the defendant but did not find him that day.

The next day, January 29, 1960, Dr. Boel-sen with Mr. Sebree located Mr. Brook-shire at his farm house. Mr. Brookshire told him “he had had very little feed, and at some time he had been hit in the head and he had been sick.” They went to the barn and found more dead cattle. Some were confined to stalls. Dr. Boelsen saw no sign of disease. He gave his medical opinion that the cattle had just starved to death. He “asked him (Brookshire) about them and I think one of his first statements he made was that he just hadn’t had any feed for the cattle.” * * * “ * * * had had one load of hay in about 10 or 12 days.”

There was evidence that the Brookshire farm was completely fenced and that the cattle were confined on the farm. Mr. Brookshire admitted he had sufficient money to buy feed, and that same day with Dr. Boelsen, and Mr. Sebree, purchased 100 bales of feed at a feed barn in Columbia, Missouri, and paid for it with a cashier’s check which he obtained at a Columbia, Missouri bank. All 100 bales were fed that day to the surviving cattle. The next day, Saturday, January 30, 1960, the dead cattle, 43 in number, were trucked away to a rendering plant. A good many of the weak ones upon care lived.

Deputy Sheriff Sebree counted 27 or 28 dead cattle around the farm on January 28, 1960. Some were in the barn piled up on top of others and some were outside the barn. He searched and found no feed other than some 6 or 7 bales of hay in a garage. “Q. Did Mr. Brookshire say how long it had been since these cattle had had anything to eat? A. He said practically a week. Q. When did he tell you that? A. The 29th. * * * Q. And did you ask him if he had money to buy feed with ? * * * He said he had.”

Appellant Brookshire testified in his own behalf. He stated that on the night of January 9, 1960, he had been held up, robbed and beaten by two men. He was taken to the hospital. He had a colored man “who was doing my work and feeding my animals.” He stayed in the hospital until Tuesday, January 12th. He testified as to efforts he then made to obtain feed. He obtained 300 bales from Iowa on January 14th. This was the last food he bought. He had expected his Iowa supplier to continue to bring him hay but he didn’t.

Appellant denied any of his cattle were weak and down. He stated he had no reason to believe any were dying. He believed his colored helper, who left suddenly, poisoned the dead cattle as a part of a plot “with the men at the filling station” who were his enemies. As to the cattle he said, “Oh, some of them were thin but they were strong. They were getting around.” He testified “it would take close to 500 bales” of hay to feed his herd for one week. “Q. You are a cattle man. Do you know how long it would take a Hereford, such as you had, to die from starvation ? A. Well, it would take several days.” He admitted 39 head had died during the time in question.

Five pictures of the dead, “down” and standing cattle taken during the mentioned time were introduced in evidence and shown to the jury.

We consider appellant’s contention that there was no evidence of malicious or criminal intent on his part. Criminal intent is an essential element of the offense of cruelty to animals established by Section 563.680. Although criminal intent is an essential part of the offense it may be inferred from the appellant’s act of intentionally impounding and confining the animals and failing to supply them with sufficient food during such confinement. Both intent and cruelty may be inferred from such acts.

In a similar case, State v. Hirsch, Mo.App., 260 S.W. 557, the defendant was charged with unlawfully having failed to supply certain confined horses with sufficient food to prevent them from starving. There, the court said, loe. cit. 558: “With reference to appellant’s complaint that the state did not show malice and intent, we need but say that these elements may be imputed from the facts, for, if it is shown that the defendant knowingly impounded these animals without food, malice may be inferred. * ⅜ * As to the intent, it of course is the law that to render an act criminal, a wrongful intent must exist. But when a wrongful act is committed under circumstances as shown here, it may be inferred that such acts were intentionally committed.” The evidence of appellant Brookshire’s act of confining the cattle on his farm in the winter in effect without food (a few bales of hay may have been provided) from January 21, 1960, to January 28, 1960, knowing that it would take “close to 500 bales” to feed his herd for one week and that they could die from starvation in “several days” is sufficient for the jury to premise a finding of the requisite malice and criminal intent contemplated by the statute.

Appellant argues his evidence of his injury, his physical inability to get around and his efforts to obtain feed for his herd demonstrate his lack of criminal intent. However, there was evidence that he did “get around” during the period in question. He did obtain feed quickly for his herd when the deputy sheriff accompanied him for that purpose. The credibility or lack of credibility of his evidence concerning his intent was a jury matter, and the jury chose not to accept his version of it. This it had the right to do.

While we have not undertaken to set out all of the evidence we have set out sufficient to show the lack of merit in appellant’s second contention. If the jury chose to believe this evidence it was sufficient to be the basis of a verdict of guilty of the crime charged. Since the evidence made a submissible case the trial court did not err in refusing to direct a verdict for appellant.

Appellant’s final contention is that the trial court committed reversible error in giving Instruction No. 4 “for the reason that there was no testimony of any character which would warrant the giving of this instruction and for the further reason the instruction is redundant and does not make clear to the jury what evidence they were to consider.” In his brief appellant does not endeavor to amplify, explain, illustrate or particularize this charge of error. We have examined the instruction, and find it free of any infirmities appellant charges to it. There is evidence to support the giving of the instruction. We do not perceive any redundancy in it, and it is both clear and concise. We are unconvinced that it could have misled or confused a jury of reasonable men.

The appellant has not demonstrated that any error prejudicial to him was committed in the trial of this case. Accordingly, the judgment of the trial court should be and is affirmed.

It is so ordered.

All concur.

      . 563.680. “If any person shall impound or confine, or cause to be impounded or confined, in any pound, or other place, any animal or creature, and fail to supply the same during such confinement with sufficient food and water, * * * (he) shall be deemed guilty of a misdemeanor.”

        . “INFORMATION (Confining Cattle Without Food)'—Comes now Larry M. Woods, Prosecuting Attorney within and for the County of Boone and State of Missouri, and upon his official oath informs the Court that W. A. Brookshire, between January 21, 1960, and January 28, 1960, at the said County of Boone and State of Missouri, did wilfully and unlawfully fail to supply twenty-seven (27) white faced Hereford cattle with sufficient food, he the said W. A. Brookshire having caused said cattle to be confined on his farm located about ten miles south of Columbia, Missouri on U. S. Highway 63, contrary to the statutes in such cases made and provided; against the peace and dignity of the State. (Filed January 29, I960).”

      . Instruction No. 4: “The Court instructs tlie jury that if you find and believe from the evidence, beyond a reasonable doubt, that the defendant W. A. Brookshire, at the County of Boone and State of Missouri, between January 21, 1960 and January 28, 1960, did willfully and unlawfully fail to supply twenty-seven (27) white faced Hereford cows with sufficient food, and if you further find beyond a reasonable doubt that the defendant W. A. Brookshire caused said cattle to be confined on his farm, then you will find the defendant W. A. Brookshire guilty of causing cattle to be confined without sufficient food and assess his punishment by imprisonment in the county jail for a term not exceeding one year, or by a fine not exceeding One Thousand Dollars, or by both such fine and imprisonment.”


author: WOLFE, Judge.

text:
    Verla Baker CHILCUTT, (Plaintiff) Appellant, v. Joseph W. BAKER, (Defendant) Respondent.
    No. 30940.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.
    Kramer, Chused & Kramer, Richard S. Rosenthal, St. Louis, for appellant.
    Joseph W. Dierker, John B. Sharpe, St. Louis, for respondent.
   WOLFE, Judge.

This is an appeal from a judgment denying modification of a decree of divorce. The decree granted the divorce to the defendant Joseph Baker on a crossbill, and awarded him custody of two children born of the marriage. By the motion to modify here considered, the mother of the children sought to have the decree changed so that the custody of the two children would be awarded to her.

It appears from the transcript of record that Verla Baker, now Verla Baker Chilcutt, filed suit for divorce on February 27, 1960. She charged in her petition that Joseph Baker, by certain commissions and omissions constituting indignities to her, had rendered her condition as his wife intolerable. She prayed for a decree granting her a divorce and custody of the two children, a girl three years of age and a boy nine.

The defendant answering denied the indignities charged, and by way of crossbill alleged that the plaintiff had deserted him on February 15, 1960, and further alleged that she had associated with another man both prior to and after the separation. He also sought custody of the children.

At the trial a stipulation was filed which disposed of the rights of the plaintiff in certain real estate for a stipulated sum. It further provided that the defendant, if granted a divorce, should have custody of the two children. This provision was supplemented by other provisions which gave the wife certain custodial privileges. They are as follows:

“2. That the plaintiff may have temporary custody of said minor children on one Saturday and Sunday, at the beginning of each month, until 9 P.M., Sunday night.
“3. That the plaintiff may have temporary custody of the children on one evening of each month as she may choose until 10 P.M.
“4. That plaintiff may have temporary custody of said minor children for two weeks during the summer school vacation at such time as plaintiff may choose.”

As stated, the divorce decree gave the custody of the children to the father and made no award of visitation rights or the right of any temporary custody to the mother. The motion to modify the decree is quite brief. All of its averments and its prayers are as follows:

“Comes now Verla Chilcutt formerly Verla Baker, and respectfully requests this Honorable Court to modify the decree of divorce rendered in these proceedings on November 3, 1960, particularly as it relates to the custody of her minor children, Ralph Baker born January 6, 1951 and Patricia Ann Baker born September 9, 1956.
“Your petitioner represents to the Court at the time she executed stipulation for custody of minor children and property settlement on or about September 20, 1960 she was without benefit of counsel; that she relied solely on the representations made to her by counsel for her then husband, Joseph W. Baker; that she has since ascertained that she had not been correctly advised regarding her rights of custody of her minor children.
“Your petitioner therefore prays this Court that the decree of divorce heretofore granted be modified by granting her custody of the two minor children, Ralph Baker and Patricia Ann Baker; that the Court grant her adequate support money for the support of said minor children, and that the court grant her an allowance for attorneys’ fees and for costs.”

It will be noted that the above, although captioned “Motion to Modify”, alleges facts that constitute an attack on the decree itself rather than the customary motion to modify. The matter was tried, however, by both parties upon the theory that it was a motion to modify. We shall therefore consider it amended to meet the proof and theory upon which it was tried. Rule 55.54, V.A.M.R. See notes under 509.-500 RSMo 1949, V.A.M.S. Ingram v. Kiewit, Mo.App., 331 S.W.2d 681; Vitt v. Baer, Mo.App., 335 S.W.2d 681.

The plaintiff’s evidence was that she had married James Chilcutt a month after she had been divorced from Joseph Baker. She stated that she and her present husband were living in St. Louis in a three-room flat, and that their residence is near a school. She stated that she and her husband regularly attended a church of the same denomination that the children and her former husband attended. She and her present husband are both factory workers, and both work for the same company. He earns $76.00 a week and she earns $64.00 a week. Both she and her present husband testified that they wanted the children. She testified that just prior to the divorce her former husband ordered her from their home, during the absence of the children, and that she took a room in the same rooming house where Chilcutt was then living.

She denied that there had been any improper association between her and Chil-cutt, and stated that they were thrown into association with each other because they both worked at the same place. Chilcutt’s testimony was to the same effect.

Baker testified that the two children were living with him and his mother, who took care of them while he was at work. They lived in a four-room fiat. His mother had come to St. Louis from a farm in Christian County, Missouri, to take care of his children, and his father was to move up to St. Louis to live with them, also. He stated that the children attended church and that his son, then ten years of age, was in school.

These constitute essentially all of the scant facts before the court upon which the modification of the decree was denied, except for the testimony of the plaintiff in relation to the signing of the stipulation mentioned. On this subject she testified that Baker, then her husband, had requested her to go to his lawyer’s office and sign the stipulation set out above. She went with him and was advised by his lawyer to discharge her own lawyer and to sign the stipulation. She followed his advice. Her husband’s lawyer admitted that he had advised the plaintiff to discharge her lawyer when she told him that her lawyer would not do what she wanted him to do.

At the conclusion of the evidence the court stated: "On the basis this Court heard this case on October 31st, a decree was granted to defendant on October 31st; by defendant’s own testimony — by plaintiff’s own testimony she married December 3rd, by her own testimony she entered into the stipulation that was filed in this court wherein the defendant was awarded custody and by this Court her petition was dismissed for failure to prosecute and was heard on defendant’s cross bill. So at this time her motion to modify is denied.”

In relation to the testimony presented in court concerning the conduct of Baker’s counsel, the trial judge said that the matter was one that should be properly presented to the Bar for investigation. With this we are in full accord. Rule 4.09, V.A. M.R., provides as follows:

“A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”

In relation to this rule the cases of In re Frith, Mo.Sup., 233 S.W.2d 707, and In re Atwell, 232 Mo.App., 186, 115 S.W.2d 527, are of interest.

While the evidence of the conduct of defendant’s counsel strikes at the validity of the decree rather than its modification, it should be considered in so far as it sheds light upon the compulsions or impulsions under which the plaintiff acted at the time she signed the stipulation to aid in determining a change of condition under which the decree may be modified. Edwards v. Edwards, Mo.App., 302 S.W.2d 37.

We try this case de novo here, giving deference to the trial court’s advantage in having before it the witnesses in person. This allows the court to better judge their credibility than we may do from the bare transcript of their testimony. In this case, however, there is no conflict in testimony as it relates to the present condition of the parties.

The requisite proof for modification in a •divorce decree has been so often stated that we shall not lengthen this opinion by restating it. Regarding the custody of children, we said in McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588, l. c. 591:

“The fact that either party prevails in a divorce case is not the determining factor in awarding the custody of the children involved. The custody of .children should never be awarded as a means of punishing one parent or rewarding the other. The determinative factor in awarding custody is the welfare of the child. Green v. Perr, Mo.App., 238 S.W.2d 924; Ballew v. Ballew, Mo.App., 288 S.W.2d 24. It is ■quite naturally considered that very young children and particularly girls should be in the custody of their mother unless she is demonstrably unfit to assume their proper care. Davis v. Davis, Mo.App., 254 S.W.2d 270; Armstrong v. Armstrong, Mo.App., 185 S.W.2d 845.”

While the foregoing case is a divorce case, the same considerations are present in a motion to modify a decree of divorce upon a showing of a change of conditions subsequent to the decree.

Applying these rules to the facts before us, we find that there has been a change of conditions, in that the movant is married and now has an established home, while at the time of divorce she lived in a rooming house and was in questionable association with her present husband. Her evidence shows that both she and her husband are employed, but there was no showing of any kind as to who would care for the children while they were engaged in the work of their employment. In fact, the motion was presented in such a cursory manner that facts necessary for the modification sought were not as exhaustively developed as they -should have been.

Because of the foregoing the court properly denied the transfer of the custody to the movant. The evidence, however, does call for a modification of the decree. If the circumstances present at the time of divorce warranted a decree so harsh that it made no provision for visitation privileges to the mother, those circumstances are no longer present.

It is therefore ordered that the judgment be reversed and the cause remanded with directions to modify the decree, awarding to Verla Chilcutt the right to have temporary custody of the children on one Saturday and Sunday at the beginning of each month until 9:00 p. m., Sunday night, and temporary custody of the children on one evening of each month, as she may choose, until 10:00 p. m., and that she may have temporary custody of the children for two weeks during school vacation at such time as she may choose.

ANDERSON, P. J., and SAMUEL E. SEMPLE, Special Judge, concur.

RUDDY, J., not participating.