author: PRITCHARD, Commissioner.

text:
    Garland WRIGHT, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, A Corporation, Appellant.
    No. 50947.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.

      Frank X. Mattes, St. Louis, and Edward Murphy, East St. Louis, Ill., William R. Kirby, St. Louis, of counsel, for respondent.
    Lucas & Murphy, by Joseph A. Murphy, St. Louis, for appellant.
   PRITCHARD, Commissioner.

Plaintiff was a railroad car inspector for defendant in its railroad yards in North Kansas City, Missouri, on the day of the occurrence herein, November 18, 1962. Plaintiff claims damages for personal injuries under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. His case was submitted to the jury upon two conjunctive theories of negligence embodied in Instructions Nos. 6 and 7. The first of these is to the effect that a manner and method of straightening a bent “sill step” on a boxcar by use of a wooden 2" x4" pry or lever was not reasonably safe; the second is that plaintiff’s coworker, a foreman, suddenly and without any warning slackened off or let up on the lifting of said timber and changed positions and shifted the weight and pressure to plaintiff, thereby causing his injuries, as claimed, to his low back and groin (a herniated intervertebral disk, and a right inguinal hernia).

Defendant says that there was insufficient evidence to justify submission of the two theories of negligence to the-jury and to support the verdict for damages based on a herniated disk. It also contends that questions by plaintiff’s counsel to the jury panel during the voir dire examination with respect to the amount sued for ($75,000.00 prayed for in the petition; $64,550.00 or $64,355.00 stated during voir dire examination) pledged the jury in advance to a verdict, and that its motion for mistrial and to discharge the jury by reason thereof was improperly denied. Further points of defendant on this appeal are that the verdict of the jury was so excessive as to show that it was the result of bias and prejudice of the jury; and that the final judgment is excessive.

The jury returned a verdict of $64,355.00. On after-trial rulings the court ordered a remittitur of $18,855.00 upon the ground that the verdict was excessive, to which remittitur plaintiff consented, and final judgment was entered in the amount of $45,500.00.

Plaintiff’s version of the occurrence follows, to which we give full credence and favorable inference as well as to his other evidence inasmuch as the sufficiency of the evidence to support the verdict is challenged. Bunch v. Missouri Pacific Railroad Company, Mo., 386 S.W.2d 40, 42 [1],

Plaintiff was employed by defendant with duties as a car inspector when he was injured. His duties consisted of placing train cars “on air” (coupling the hoses between them), and inspecting them for “penalty” defects. There was a string of about 40 cars upon the north-south yard track 8, which cars plaintiff’s foreman, Fischer, told him to inspect and to put on air. Plaintiff walked north along the west side of the train of cars inspecting them as he went. As he reached the boxcar in question he saw that the sill step (or stirrup) thereon was bent about 4 inches underneath, inward and upward. This sill step was constructed in a “U” shape, of flat iron % inch thick and about 2 inches wide. It hangs down from the edge or overhang of the car bed and makes a stirrup 12 inches in length and width. The metal was twisted about half way around so that its ends could be welded or riveted to the edge of the boxcar. Plaintiff marked the bent sill step with chalk, walked on to the north end of the train of cars, and then started back down the east side thereof. After plaintiff had walked south for several car lengths, Fischer called to him to come over to the west side of the track. Plaintiff climbed over car couplings and saw that Fischer was carrying two two-by-four boards 10 feet long and nailed together. When they got back to the boxcar with the bent sill step Fischer said to plaintiff, “We will put the two-by-four in through the sill step underneath the car.”

At the point where the boxcar with the bent sill step was located, the distance between tracks 7 and 8 was 8 feet; from the bottom of the floor of the car to the ground the distance was about 31/2 feet, the overhang of the car was about 1 Yz feet; the ties extended out from the rails on track 8 about 1J4 feet; the ties were about 2Yz inches above the ground; and the rails of track 8 were 5 or 6 inches above the ties. The weight of the two-by-four boards, being old ones, was about 20 pounds.

Fischer told plaintiff they could insert the two-by-fours through the sill step underneath the floor of the car and push the step out. Plaintiff protested, “It’s impossible. That’s a heavy-duty. It should be sent to the repair track.” Fischer replied that they could do it and when plaintiff suggested they could get another man, he replied further that one was not needed.

Plaintiff then placed himself about 2J4 feet from the side of the car with the two-by-four on his right shoulder. He glanced back and saw Fischer standing east of the rail on track 7 with his feet on the ties and with the two-by-fours on his left shoulder. Fischer then shouted “go.” Plaintiff turned back to the boxcar and they both lifted up until Fischer shouted “stop.” Fischer then said, “We will take another bite,” so plaintiff pushed the two-by-four through and again put it on his right shoulder, crouched down again, looked back at Fischer, who was then standing in the same position, and who again shouted “go,” so they “went up.” About that time plaintiff felt “an awful lot of weight” on him, a twist in his back and a kind of pulling in his side, and plaintiff knew Fischer had quit lifting, because (as plaintiff testified) he would not have gotten all that weight if Fischer had not quit. Plaintiff did not turn loose of the timbers but glanced over his right shoulder and saw that Fischer had changed positions — he was standing on top of the east rail on track 7 with the board above his shoulder, at which time he said “go” again. Plaintiff turned and went up again, and that time he had to go up on his toes, and when he came down his knees buckled. Plaintiff told Fischer that he could not lift any more; that he had hurt his back.

On the second attempt the sill was bent downward 2 or 3 inches (from its original approximate 4 inches). When plaintiff was doing the work he was holding up the weight of the boards and against the “spring” (tension) of the cold sill step. He testified that cold steel would spring when it is hit or pulled — it always goes back. When one surges on it, if it is pushed out 3 inches it will go back approximately one inch.

On the first attempt Fischer shouted “stop,” but did not do so the second time, and did not tell plaintiff he was going to turn loose or give him any warning about letting up on the upward push of the boards.

Plaintiff testified that he never did do the work, or see it done, the way it was done at the time of his injury. For heavy repairs the car is taken to the shop to be heated with an acetylene torch and straightened on the car with a sledge hammer or something to knock it out. Another way to straighten the sill is to burn out the rivets, take it off the car and into the shop where it is heated and pounded back into position.

Floyd B. Warner testified for plaintiff that he had worked in the car department of the Union Pacific Railroad, on the repair (“rip”) tracks and in the yards, for 41 years. He had repaired and seen repaired bent sill steps on many occasions. There was in existence a custom and practice on his railroad in doing that type of work, which was “open, universal, common, notorious and well known.” That custom and practice, Warner testified, was that the sill step was heated and forced into proper shape or position by hammering or exerting pressure, or if it is badly bent, the rivets or bolts are cut out and the sill step is removed and taken to the furnace, fabricated and welded, brought back and bolted or riveted on the car. That kind of work is done on the repair tracks. Warner had never seen the work done by the use of two-by-four timbers on cold metal; there is a resiliency in all metal which when struck gives a spring reaction. On cross-examination Warner testified that the sill step is always removed from the car unless it is possible to bring heat to the car, which is done in remote cases to expedite the movement of a train.

Cecil H. Whitmer of the Kansas City Terminal Railway car department testified that the existing custom and practice of straightening bent sill steps is to “bad-order” the car and take it to the “rip” track to be straightened by the use of heat. He had never seen that type of work done upon cold metal with a couple of boards.

William Delbert Crosley testified to the existing custom and practice substantially the same as Warner and Whitmer, and that he had never seen the work done where a couple of boards were used to pry up a sill step when the metal was cold.

In its attack upon the sufficiency of the evidence to support the verdict, defendant says that under Instruction No. 6 plaintiff failed to adduce sufficient proof that the method used to straighten the sill step was dangerous and not customarily used in the Kansas City area, and that defendant knew or should have so known. The only argument made is that plaintiff did not “bad-order” the car, but instead put two chalk marks on it, when he was first on the west side of the car in his inspection trip. Defendant says, “Had plaintiff not thought that the sill step was to be straightened in the yards he would have bad-ordered the car and the same would have been sent to the repair track for attention to the sill step.” The argument overlooks the fact that during his tour of duty plaintiff could have much later “bad-ordered” the car as the train was not due to leave until late that evening, as plaintiff testified. The argument further overlooks the fact that plaintiff objected to the direction of his foreman, Fischer, in the use of the two-by-fours to straighten the sill step “cold” and in the yards. No unfavorable inference can be drawn against plaintiff from the fact that he did not bad-order the car immediately. The inference could be, on the other hand, that in view of his foreman’s orders on the spot to use the two-by-fours, plaintiff did not have an opportunity to request that the repairs be done pursuant to a “bad-order” card attached to the car.

The custom and practice here of heating the sill step was adequately proved by plaintiff and his three witnesses, Warner, Crosley and Whitmer, all of whom testified on the subject. All of that testimony showed that there was an “open, universal, common, notorious and well known” custom and practice in doing the work of sill step straightening on three railroads, other than defendant’s, in the Kansas City area. Such evidence is admissible and relevant to the inquiry of whether or not defendant used reasonable care and prudence in the method its foreman employed in straightening the sill step in its yards. “While, as stated, a custom is not conclusive as a standard of reasonable prudence, there is a reasonable basis for the contention that what is ordinarily done by men generally, engaged in a similar activity, has some relevancy to the inquiry as to what an ordinarily prudent person would do under the same circumstances.” 38 Am.Jur. Negligence, § 34, p. 681. See also Cleghorn v. Terminal Railroad Ass’n of St. Louis, Mo., 289 S. W.2d 13, 18 [5-9]; Gatzke v. Terminal Railroad Ass’n of St. Louis, Mo., 321 S.W. 2d 462, 466 [2-4]; 137 A.L.R. 613; 35 Am.Jur. Master and Servant, § 515 (Supp.); and 43 A.L.R.2d 619 et seq., presenting discussion and annotations of cases as to the sufficiency of rules, practices, precautions, etc., used by defendant and other railroads.

The evidence of custom and practice here is within the standards of admissibility in a leading case (cited by defendant) on the subject, Davis v. Gatewood, Mo., 299 S.W.2d 504. The witnesses possessed knowledge of the existence of the custom; it was not confined to the practice of certain individuals only; the testimony related to definite uniform and known practices under certain definite and uniform circumstances; and the existence of the custom or usage here is a matter of fact susceptible to proof as any other fact. Brock v. Mobile & Ohio R. Co., 330 Mo. 918, 51 S.W.2d 100; Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79.

Defendant further contends that plaintiff failed to adduce any probative evidence of the charge of negligence in Instruction No. 7 that Fischer, plaintiff’s foreman, “let up” or changed positions during the lifting of the two-by-fours. It says that plaintiff’s testimony that Fischer changed position during the second lift is not probative evidence that he did. The argument seems to be that plaintiff looked at Fischer after they had completed the second lift, and presumably the inference urged is that plaintiff could not have seen Fischer change positions during the lift. The argument ignores other evidence. Plaintiff testified he put the two-by-fours on his right shoulder, then glanced back and saw Fischer standing with his feet on the ties of the east rail of track 7. At the beginning of the second lift Fischer was in that same position. During the second lift, plaintiff felt “an awful lot of weight on him” and knew that Fischer had then quit lifting. Plaintiff then looked back and saw that Fischer had changed his position from the top of the ties to the top of the rail on track 7. This was sufficient evidence for the jury to find that Fischer “let up” on his lifting in order that he might change positions during the lifting operation. No contention is made concerning Fischer’s failure to warn plaintiff that he was going to change positions.

The evidence shows that as Fischer quit lifting his part of the two-by-fours plaintiff felt “an awful lot of weight on him,” a twist in his back and a “kind of pulling in his side.” The testimony of plaintiff and other of his witnesses was that steel of the type in the sill step will “spring” back in its tension when it is pushed against. We cannot say that the jury would not be justified in finding that a sufficient downward force was placed upon plaintiff as to cause his injury, as alleged. It was not merely the weight of the two-by-fours (20 pounds) which was placed upon plaintiff, but it was also the force of the “spring back” of the steel sill step.

There is no question but that plaintiff made a case of injury for a herniated disk. At the time of the alleged injury, plaintiff felt a twist in his back and a pulling in his groin. He thereafter developed severe pain in his low back. His physician, Dr. Sylvester H. Pranger, M.D., caused medication for pain to be administered; prescribed massage and traction, and that a back brace be worn by plaintiff. X-rays were taken which showed a narrowing of the vertebral interspace between the fifth lumbar vertebra and the first sacral segment, which indicated that some of the material therein, the nucleus pulposus, had escaped into the neural canal causing pressure on the nerves vyhich in turn produced pain in the low back and which radiated into the left leg. The doctor’s diagnosis was that of a herniated disk in this area, and the causal connection thereof to the incident of November 18, 1962 was established. Although this is a case of diagnosed herniated disk (no myelogram was performed, and no operation for removal of the disk or fusion of vertebrae was done, compare Johnson v. Missouri-Kansas-Texas Railroad Company, Mo., 374 S.W.2d 1, S et seq.), there was sufficient substantial evidence with which the jury could find, in its prerogative, that plaintiff did suffer the injury which he claimed. Defendant’s Point I, raising the submissibility of plaintiff’s case in the respects above mentioned, is overruled.

By Point II, defendant raises the issue that the court erred in refusing to grant its motion for mistrial and to discharge the jury panel because of counsel’s interrogation of the jury panel during voir dire examination concerning the requested amount for damages. The voir dire examination complained of is as follows (our italics added):

“ ‘Mr. Edward Murphy: Mr. Reynolds, under the law, if you return a verdict in favor of Mr. Wright, it is your duty to decide the amount that he should receive for his injuries. In this regard, I want you to know, and I want all members of the jury to know, just what we are asking for, the amount of money we are asking for.
Mr. Joseph Murphy: If the Court please, I don’t think that’s proper on voir dire.
The Court: Objection overruled.
Mr. Edward Murphy: After you have heard all the evidence and instructions of the Court we will ask for money for loss of wages, past and future, and money for past pain, future pain, in the total amount of $64,550.00. Does that sum of money seem completely ou't of line to you? Is that too large? You don’t believe you could compensate the man in that amount if the evidence showed, and under the instructions of the Court, he was entitled to it?
Mr. Reynolds: For internal injuries ?
Mr. Edward Murphy: Well—
The Court: (Interrupting) One moment, please. We are getting a little too far afield. I will permit you to state the amount you are suing for in your petition, and I think you should confine your question, whether that sum in and of itself, would prejudice or make him have any feeling that he couldn’t hear this case impartially and let it go at that. In other words, anything about that particular sum that would make him have any feeling that he couldn’t fairly decide this particular case.
Mr. Edward Murphy: Now, Mr. Reynolds, as the judge said, the fact we are asking for $64,355.00, you wouldn’t throw up your hands and say “No man is worth that because he’s injured,” would you?
Mr. Reynolds: No.
Mr. Edward Murphy.® You would listen to the evidence and listen to the instructions of the Court and then you would make up your mind?
Mr. Joseph Murphy: If the Court, please, I object to that. I would like to approach the bench.
(Thereupon the following occurred out of the hearing of the jury panel:)
Mr. Joseph Murphy: I move that this panel be discharged and another one sent up because of the undue prejudicial remarks of counsel. The first objection which was overruled, even though I disagree with the Court, the Court may or may not have been right, but upon admonition by the Court, on his own motion, counsel thereafter continued to argue the amount of damages in a prejudicial way, undue emphasis on the same, the same would be undue repetition throughout. This is only on voir dire. This isn’t opening statement or argument.
The Court: I will sustain the objection in part; however, the request for mistrial will be denied. I don’t think we need any further reference to the amount, unless you want to ask the jury as a whole whether there is anything about this particular amount they would have any feeling they couldn’t listen and fairly decide this case.
Mr. Edward Murphy: If the Court, please, we are asking for a substantial amount of money and I believe there might be people on the jury that might feel this is just astronomical and no injury is worth that much. I don’t think to ask every juror the question — I think 1 should be able to ask several jurors as we go down the panel this question.
The Court: I think one question will be sufficient to ask the jury panel whether there is anything about this particular amount that would place them in a position where they couldn’t fairly and impartially decide the case, and then you can save the rest of that for argument.
(Thereupon, the trial was resumed before the jury panel as follows:)
Mr. Edward Murphy: Mr. Reynolds, will you follow the instructions of the Court and listen to the evidence in this case?
Mr. Reynolds: Yes.
Mr. Edward Murphy: How old is the oldest?
Mr. Boyer: Fourteen.
■ Mr. Edward Murphy: Now, Mr. Boyer, we are going to ask here for damages for injuries that Mr. Wright sustained and the Court is going to instruct you that you can return money damages for loss of wages in the past, loss of wages in the future, money damages for pain and suffering in the past and pain and suffering in the future. Now you will follow the instructions of the Court on this point and also listen to the evidence?
Mr. Boyer: Yes.
Mr. Edward Murphy: If the sum we asked for is substantiaited by the evidence, you will return a verdict for that amount?
Mr. Joseph Murphy: If the Court please—
The Court: (Interrupting) Objection sustained. The jury is instructed to disregard that. You can’t commit the jury to any particular finding at this particular time. Any further question along this line, the Court will entertain a motion for mistrial and discharge this panel.
(Thereupon the following occurred out of the hearing of the jury panel:)
Mr. Joseph Murphy: I would like at this time to move again for discharge of the panel, because it has been unduly prejudiced by the rapidity of the questions and by the failure of plaintiff’s counsel to follow the earlier admonition of this Court.
The Court: Request for mistrial will be denied at this time.
Mr. Edward Murphy: Judge, before, you said I could ask that question.
The Court: That’s not the question you asked.
Mr. Edward Murphy: You said I could ask the whole panel one time, is that correct, sir?
The Court: Yes, I told you you could ask the panel at one time whether that particular amount would make them have any feeling that they couldn’t fairly and impartially decide this case. You are assuming before they have heard any evidence these things will be substantiated. Frank [Frank Mattes, co-counsel for plaintiff] came up here and I thought he gave you the right question when he suggested to you to ask them, at the conclusion, the Court would give them the instructions and will they follow the law and will they follow the instructions.’ ”

The trial court necessarily has discretion in the permitting or denying of questions upon voir dire examination and in ruling upon requests for mistrial. Smith v. Aldridge, Mo.App., 356 S.W.2d 532, 536 [6-8], for which counsel is and should be granted a wide latitude. 31 Am.Jur. Jury, § 139, p. 121; Faught v. St. Louis-San Francisco Railway Co., Mo., 325 S.W.2d 776, 779 [1,2]. The reason for the latter rule is to ascertain the qualifications and competency of members of the jury panel in the interest of securing a fair and impartial jury. Moore v. Middlewest Freightways, Inc., Mo., 266 S.W.2d 578, 585 [8-12] ; Eickmann v. St. Louis Public Service Company, Mo., 323 S.W.2d 802, 807 [7-10].

In the instant case, however, and although counsel had the right to ascertain from the jury panel any bias or prejudice by reason of the amount sued for which would render it impossible or difficult for them to render a fair and impartial verdict based upon the evidence and the instructions of the court, the examination could not go so far as to commit or pledge the jury to a certain verdict or amount thereof in advance of hearing all of the evidence. Certainly, there should be no argumentative matters presented. Annotation, 82 A.L.R.2d 1420; and see the Missouri cases cited therein. Here, the italicized portions of the above voir dire examination are clearly argumentative in nature and suggestive of the amount of verdict the jury ought to return, and of the type criticized in Goldstein v. Fendelman, Mo., 336 S.W.2d 661, 665 [4], and in Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 22. Furthermore, the tendency of the italicized quotations is to commit or pledge the jury to a particular verdict. For these reasons the voir dire examination is ruled improper. That it was prejudicial to defendant is indicated by the fact that the jury returned a verdict of $64,355.-00, the exact amount which counsel for plaintiff mentioned at one place, and only $195.00 less than that mentioned in another place, in the voir dire examination.

It is unnecessary to consider other points raised.

The judgment is reversed and the case is remanded for new trial.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Eugene NOELKER and Cecelia Noelker, (Plaintiffs) Respondents, v. August A. WEHMEYER and Mabel Wehmeyer, (Defendants) Appellants.
    No. 32126.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.

      A. H. Juergensmeyer, Warrenton, Theodore P. Hukriede, Washington, for defendants-appellants.
    Leo A. Politte, Washington, Robert Hoelscher, Warrenton, for plaintiffs-respondents.
   DOERNER, Commissioner.

Plaintiffs by this action sought the ejectment of defendants from certain land in Warren County. Defendants filed an answer and a counterclaim in which they alleged that their deed to plaintiffs had been procured from them by fraud, and asked that it be cancelled and the real estate ordered reconveyed to them upon payment of their admitted indebtedness to plaintiffs. The trial court entered an interlocutory decree in which it found that the deed from defendants to plaintiffs had not been procured by fraud, but that it was intended as an equitable mortgage to secure the' indebtedness of the defendants to the plaintiffs. The decree ordered that, upon the payment on or before April 27, 1963, of the indebtedness and the further sum of $4,765.02 to reimburse the plaintiffs for improvements they had made on the premises, the plaintiffs should reconvey the property to the defendants. The interlocutory decree further provided that, in default of the payment of such sums, final judgment would be entered in favor of the plaintiffs on their petition and against the defendants on their counterclaim. Defendants failed to make the payments called for by the interlocutory decree and on October 28, 1963, the trial court entered a final judgment in favor of the plaintiffs on their petition in ejectment and against the defendants on the defendants’ counterclaim. Defendants appealed to the Supreme Court, which determined that it lacked appellate jurisdiction and transferred the cause to this court. Noelker v. Wehmeyer, Mo., 383 S.W.2d 729.

In their brief defendants state:

“The trial Court found, as set out in the Interlocutory Decree that the Warranty Deed was not executed as a result of fraud and that it was to be considered as an equitáble mortgage. The Appellants accept the findings of the trial Court on those questions.
“It is the contention of the Appellants that the trial Court was in error in its finding that they would have to pay Respondents $4,765.02 with interest at 6% from February 27th, 1962 in addition to the amount of the cancelled note in order to secure a conveyance of the real estate to them.”

Thus the defendants have restricted the grounds of their appeal to that part of the decree regarding payment for the improvements made by plaintiffs. They contend that as to this feature the judgment and decree was erroneous for two reasons: (1), that the plaintiffs were not bona fide purchasers of the real estate and, therefore, were not entitled to be reimbursed for any money they expended in making improvements thereon; and (2), that if plaintiffs are entitled to any reimbursement, the evidence showed that the improvements enhanced the value of the land by only $1500 and that defendants should be required to pay only that amount in addition to their admitted indebtedness, instead of $4,765.02 as ordered by the court. Consideration of these points requires a further statement of the facts.

On August 20, 1955, the defendants, who then owned the farm in question, borrowed the sum of $2600 from the plaintiffs. Defendants executed a promissory note to plaintiffs of that date, in the principal amount of $2600, due two years after date, with interest thereon at the rate of 5% per annum, and a deed of trust to secure the payment of the note. During the trial the parties stipulated that the balance of principal and interest due on the note on October 24, 1960, was $2340.50. The evidence is undisputed that on October 23, 1960, plaintiff Eugene Noelker was at defendants’ home. It is also undisputed that a discussion ensued between Noelker and defendant August A. Wehmeyer concerning an automobile accident in which Wehmeyer had been involved a few days before, and the possible danger of defendants losing the real estate because of liability arising from the accident. Lastly, it is further undisputed that the next day, October 24, 1960, the defendants executed a warranty deed by which they conveyed the property in question to the plaintiffs and that the note and deed of trust were subsequently released of record. The testimony as to the agreement which was reached which led to the conveyance is in dispute and, as the defendants characterize it in their brief, “was confusing, to say the least.” Plaintiffs’ version, as best we understand it, was that defendants were to pay rent of $20 per month to plaintiffs until such time as defendants were able to repay the balance of principal and interest due on the money they had borrowed. A further stipulation, according to Noelker, was that he agreed to the conveyance on condition that while plaintiffs held title he would construct a dam and a lake on the farm, and alter or repair the road leading into it, and that defendants would pay for such improvements if and when they exercised their right to redeem the property. Wehmeyer’s version was that plaintiffs were to hold the title until the liability growing out of his accident had been settled, and were to reconvey upon payment of the balance of principal and interest due for the money borrowed. He acknowledged that on the same day, but after, the deed was signed, Noelker asked him for $20 a month rent, that he asked Noelker whether such payments would reduce the principal due, and when told that they would not, that nothing more was said. In effect, he denied having agreed to pay rent of $20 per month, but there was introduced in evidence a letter he had written to Noelker in February or March, 1961, in which he stated that he was unable to pay the $20 per month and asked for further time to do so. He also denied that the building of the dam and road had been a condition of the transfer to plaintiffs, or that he had agreed to reimburse plaintiffs for any such improvements when he redeemed the farm.

Noelker testified that he made repeated demands upon Wehmeyer for the $20 per month rent, and that while Mr. Wehmeyer promised payment, he asked for additional time in which to do so, and never paid anything. Noelker also related that Wehmeyer cut stave bolt trees and walnut trees, and continued to do so after plaintiffs objected. Finally, according to Noelker, he wrote Wehmeyer a letter in which he stated that he was going to make improvements by building a lake and other things, and wanted to know whether Wehmeyer wanted the place back. Receiving no answer, Noelker assumed that the defendants did not want the place and in June, 1961, he started to have the dam built. According to Noelker, Wehmeyer was present when Noelker and Melvin Hellebusch, the contractor, discussed the site of the dam, and made no objection to its construction, and there was other evidence that Wehmeyer to some extent helped in the survey for and the building of the dam, without ever objecting to its construction.

Wehmeyer claimed that on June 5, 1961, when Noelker was at the farm, he asked Noelker if he got the money he owed Noelker whether he could have the place back, and that Noelker answered “No.” Wehmeyer admitted that he was with Hel-lebusch when the survey was made but denied that they had told him what they were there for and stated that he did not ask. He also conceded that he saw the contractor’s employees bring in bulldozers and other heavy equipment, and when questioned by the court denied that he had ever asked them what they were doing, even though he considered that the farm was his. Noelker denied that Wehmeyer had ever made any offer to pay what was due in an effort to redeem.

The evidence showed that the dam was completed and a partially new road constructed, and that Wehmeyer made no objection until graveling of the old and new portions of the road began. At that point he stopped further work by blocking the road, and consulted an attorney. Plaintiffs’ evidence showed that they had expended the sum of $4,765.02 in the construction of the dam and road, and for taxes and insurance for two years. It appears that the dam did not leak, but that the water seeped out through a defect or fault in the rock structure underlying the lake bed, and reappeared about a quarter of a mile away on an adjoining farm. However, there was testimony by the contractor that such defects often corrected themselves, or, if not, that the leak could easily be sealed off.

There was a wide variance in the testimony regarding the effect that the lake and dam, and the work on the road, had had on the value of the farm. Noelker testified that in his opinion the property was worth only $2400 at the time it was conveyed to plaintiffs in October, 1960, and that its fair market value after the work was done was $8,000 or $8,500, which indicated an enhancement of $5600 or $6100. Hellebusch, on behalf of plaintiffs, testified that the sum of $4246.74 which plaintiffs had paid him was a fair and reasonable charge for the work that was done, and that the farm was improved by more than that amount, but he could not qualify as an expert on property values and disclaimed any knowledge about land sales. Melvin Rapp, a real estate broker, who was called to the stand by plaintiffs, estimated the 1960 value at $5700, expressed the view that the dam and lake added nothing to the value of the farm, and was of the opinion that the work on the road increased the value of the real estate by only $1500. Wehmeyer testified that in his opinion the property was worth $9000 on October 24, 1960, and that after the building of the dam and the work on the road, its fair market value was only $2000, thus claiming there had been a decrease in value of $7000. Tony Krause, called by defendants, who lived seven miles distant from the property in question and qualified as an expert on farm values, after some difficulty, expressed the opinion that the farm was worth around $11,000 in October, 1960, but he was not asked and did not give an estimate of its after value.

We cannot agree with defendants’ first contention that the court erred in conditioning their right to a reconveyance of the property upon their reimbursing plaintiffs for whatever amount by which the value of the land had been enhanced because of the money plaintiffs expended thereon. Assuming, without deciding, that plaintiffs were not bona fide purchasers, as defendants contend, it does not necessarily follow that plaintiffs were guilty of bad faith or that they were not entitled to recover. Johnson v. Stull, Mo., 303 S.W. 2d 110. On the contrary, the evidence was that plaintiffs had agreed on October 23, 1960, to the transfer of the property to them on the express condition that they could make the improvements thereon and that, if defendants subsequently wanted the farm back, that defendants would reimburse plaintiffs for the improvements made. Furthermore, the evidence showed that before commencing the work on the dam and the road plaintiffs notified defendants of their intentions to do so, and, when they received no answer from defendants, in good faith believed that defendants did not want the property back. Also, defendants not only failed to indicate that they desired to redeem the farm, but they stood idly by without objecting when the work began, and, in fact, at first assisted therein. We, therefore, concur in the findings of the trial court that the plaintiffs expended the money for the improvements “with the knowledge and consent of defendants.” Under these circumstances, to have ordered plaintiffs to reconvey without requiring defendants to reimburse plaintiffs for whatever amount by which the value of the land had been enhanced would have been highly inequitable and would have unjustly enriched the defendants. McLean v. Martin, 45 Mo. 393; Calloway Bank v. Ellis, 215 Mo.App. 72, 238 S.W. 844; Toalson v. Madison, Mo.App., 307 S.W.2d 32.

As to defendants’ second point, the rule is that the compensation to be allowed is the amount by which the value of the land was enhanced by the improvements. McAboy v. Packer, 353 Mo. 1219, 187 S.W.2d 207; Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81. Whether the farm was in fact enhanced by the dam and road, and if so, by what amount, was primarily a question of fact for the decision of the trial court. Johnson v. Schwarz, Mo., 349 S.W.2d 56. As we have noted, the evidence covered a wide range, from an estimated enhancement of $6100 to an estimated decrease in value of $7000. The trial court had the witnesses before it and was in a far better position to judge of their credibility than we are. Absent any reason in the record which would indicate that we should not do so, we defer to the findings and judgment of the trial court. McAboy v. Packer, supra; Agers v. Reynolds, Mo., 306 S.W.2d 506; Bruns v. Uebel, Mo., 318 S.W.2d 324.

No error having been shown, the judgment should be affirmed. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this Court.

The judgment of the trial court is, accordingly, affirmed.

ANDERSON, Acting P. J., RUDDY, J., and JAMES D. CLEMENS, Special Judge, concur.


author: ANDERSON, Judge.

text:
    Philip MIRANDA, Employee, Plaintiff-Appellant, v. AMERICAN REFRIGERATOR TRANSIT CO., Employer, and the Travelers Insurance Co., Insurer, Defendants-Respondents.
    No. 31615.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.

      Arthur E. McLeod, St. Louis, for plaintiff-appellant.
    Evans & Dixon, Edward W. Warner, St. Louis, for defendant-respondent.
   ANDERSON, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, affirming an award of the Industrial Commission of Missouri denying compensation to claimant, Philip Miranda, on his claim for workmen’s compensation benefits against his employer, American Refrigerator Transit Company and its insurance carrier, Travelers Insurance Company.

The claim filed by appellant with the commission alleged the date of the accident as August 24, 1961; that the part of the body injured was the “middle of lower back and pain in the hips, and swelling of feet and legs; ” and that the accident happened when “claimant was picking up angle iron from a hoister when his foot slipped and he felt severe pain in the lower back.”

The Employer and Insurer filed an answer which admitted that claimant was an employee of American Refrigerator Transit on or about August 24, 1961; that all liability of said employer was insured by Travelers Insurance Company; and that the employer and employee were operating under and subject to the terms and conditions of the Missouri Workmen’s Compensation Law. These allegations were followed by a general denial of each and every allegation contained in the claim not admitted in said answer.

The matter came on for hearing before a referee of the commission and on February 9, 1962, resulted in a temporary or partial award in favor of claimant, which provided for the payment of $679.50 for medical aid furnished the employee and not furnished by the employer or insurer, and compensation in the sum of $45.00 per week for temporary total disability for a period of 22% weeks beginning August 25, 1961. The case was by the terms of the award reset for further hearing on June 25, 1962. It also provided that in the meantime medical treatment should be provided as required and compensation paid at the rate of $45 per week for all temporary total disability suffered by claimant in the meantime as a result of said back injury. The referee’s finding with respect to accident and injury therefrom was “that on August 24, 1961, Philip Miranda, while in the employ of American Refrigerator Transit Company, was bending over to pick up some material and one of his feet slipped causing injury to his back.”

On February 14, 1962, the Employer and Insurer filed an application with the Industrial Commission for review of the findings and award of the Referee by the full commission. The Commission thereafter reversed the award of the Referee, stating in its Final Award Denying Compensation, that, “(t)he Commission finds from all the evidence that employee did not suffer the accident described in his direct testimony herein. In so holding, we find persuasive the discrepancies between the testimony of employee himself and the testimony of Croner, his purported eye witness, as well as discrepancies between the testimony of both employee and Croner, and that of Hanasek, also present. Among the various discrepancies noted were the varying descriptions of the locations of these three persons at the time of the purported accident. We are particularly convinced that if employee was, in fact, at the side of the machine (as he repeatedly testified), then Croner could not have seen the alleged slipping of employee’s foot upon the railroad rail (or pipe). We find further persuasive employee’s failure to report the incident as testified to upon the stand to his superiors and to his doctors at any time prior to the hearing of this cause.

“But even if employee had, in fact, suffered an accident as contended, we are far from convinced that the present disability from which employee suffers is a result thereof. Employee was very evasive and contradictory in testifying to his prior back condition. At one place he says he had suffered low back pain only once before, and then for a brief period of time. While it is true that he does, upon cross-examination, recede somewhat from this position, even there he attempts to minimize these prior episodes. However, the testimony of Dr. Lembeck as to the contents of the records of the Missouri Pacific Employee’s Hospital, uncontradicted, convinces us that employee had suffered almost continuous low back pain since the year 1953. He had been to the hospital many times as an out patient for treatment, therapy, and examination for low back pain, some of the courses of treatment running for many months. We find and believe that employee has failed to sustain his burden of proof as to what part of his present disability, if any, results from the purported accident involved in this claim.”

From the final award of the commission denying compensation, claimant in due course appealed to the Circuit Court. The latter as heretofore stated affirmed, and from the judgment of affirmance the appeal to this Court was taken.

Appellant contends that the Circuit Court erred in sustaining the award of the Industrial Commission in that (1) The award could not have reasonably been made upon the whole record, (2) The award was contrary to the overwhelming weight of the evidence, (3) The award was not supported by sufficient and competent evidence, (4) The commission in making its award did not give due consideration to the referee’s finding and award.

Philip Miranda, claimant, was forty years of age. He had been employed at the time of the alleged accident and injury by the American Refrigerator Transit Company for almost fourteen years. He testified that he was a carman helper. He was, on August 24, 1961, the date of his alleged injury, operating a material hauling truck called a hoister, or fork lift. This vehicle was designed to be operated between the rails of railroad tracks. In the front of the vehicle is a platform, referred to sometimes in the testimony as a “pallet,” on which material being transported was carried. The hoister had four wheels, two in front and two in the rear. The front wheels were located immediately behind the platform. The platform and the body of the hoister were only a few inches from the ground. The driver’s seat was located inside the hoister and on the left side thereof.

Just prior to the alleged accident, claimant had driven the hoister along a railroad track in the employer’s car-shop yards to an area where Croner and Hanasek were working on the repair of a railroad refrigerator car. The hoister was loaded with material for use in said repairs. Claimant referred to this material as “reservoir angle irons.”

These angle irons were 4X4 and slightly over 36 inches long. The hoister, according to Miranda’s testimony was stopped opposite to where Croner and Hanasek were. He also stated that he stepped off the hoister on the left side; that Croner and Hanasek were on the right side of the hoister when he stepped down; that he went forward to unload the material; that it takes more than two men to lift a reservoir angle iron; that he bent over to take hold of the material and his left foot slipped on a piece of pipe which was beside the track; that Mr. Hanasek was on the opposite side of the hoister and also bent down to pick up the other end of the angle iron; that Croner was to the left of Hanasek, the two men being side by side; that he (claimant) was at about the middle of the pallet when he bent over; that when he slipped he experienced great pain in the lower portion of his back which felt like something had snapped; that he grabbed onto the hoister; that the pain was so intense, he broke out in a sweat and cried; that when the pain struck his hands had not reached the angle iron; that his foot slipped about a foot; that he stayed in a bent over position for about thirty minutes; that he refused assistance offered by his co-employees, and when he was able to straighten up, he picked up pieces of a pipe and put them into his pocket; that he then continued working that afternoon; but thereafter, reported to the office that his back was hurt and was sent to the Missouri Pacific Employee’s Association Hospital. Claimant in one part of his testimony stated that he told Hanasek, Mr. Croner and his foreman that he was hurt, but did not tell them how he was injured ; that he never told anyone out there, including his foreman, that he had slipped on a pipe. Later on in his examination, he stated he told Croner he thought he had slipped on some pipes, and showed him the pipes. Claimant remained a patient at the hospital or of its medical staff from the time he entered the hospital until the hearing before the Referee, January 25, 1962. His treatment during this time was for discomfort in his back. He has not been employed since August 24, 1961. Claimant testified that the doctors at the hospital told him not to go back to work.

Claimant further testified that he told the clerk who took his statement that he slipped, but did not tell him he slipped on the pipe. Respondent’s witness, Richard Sale, the clerk, who took the statement testified that Miranda came into the office and said he stooped over and froze in that position; that he made a record of it; that the record made was, “August 24, P. Miranda, Carman helper, thirty-nine, bending over to pick up a piece of reservoir angle and didn’t pick it up, back ached and had to hold on to the wrought-iron hoister.” Nothing was said in this statement about slipping. Sale testified that claimant told him just what was said in the report. On September 22, 1961, claimant signed a personal injury report in Richard Sale’s office. The description of the injury appearing in that report is as follows: “While working for W. E. Await, Asst. Gen. Foreman, on the steel track, I was hauling material. I was unloading material for the reservoir tank, when I bent over to pick up a piece of steel angle and couldn’t get up, finally I grabbed hold of hoister after 30 minutes, suffering pain in my back.” Nothing was said in this report about claimant’s foot slipping. Sale further testified that Miranda read the report and signed it; that he made no objections to any part of it; and that the matter appearing in the report is what claimant told him.

William Croner was a witness for claimant. He testified that he noticed claimant driving south between the rails; that he turned off his torch, laid it down, and went over to assist with the material; that as he approached the hoister, Miranda had stopped, gotten off it and was walking around in front of the hoister and was facing west; that as he came around the front of the hoister and pallet he was coming toward the witness; that he was bending over and stooping at the same time; that witness noticed his left foot touch the top of the rail, and move sideways about two inches; that he was bending over to reach the material; that witness heard him say, “Oh, my back,” then get over to the hoister and held on to it; that he held on to the hoister IS or 20 minutes or longer; that he broke out in a sweat and turned white; that he (witness) asked claimant if he could help him, but he answered that he thought he would be all right if he rested a while; the witness further testified he was about three or four feet from claimant when he saw claimant’s foot slip as he was bending over.

On cross-examination, the witness stated he was directly in front of the hoister between the rails of the set of tracks upon which the hoister was located and that claimant was directly in front of him between him and the material on the hoister.

Croner further testified that he discussed the matter with his foreman and two or three days later filled out a report in the office, and said the same things to the chief clerk. He also stated that he did not tell the chief clerk that there was a slip, but said that claimant’s foot slid sideways which statement was in his report. This report was not offered in evidence. He further testified that his foreman, Mr. Await, knew about the occurrence, and discussed it with witness, but Mr. Await never inquired of the particulars, and did not ask for a report of the incident. The witness further .testified he talked to many people, perhaps one hundred, about the incident and told the story how it happened; that he discussed it with Hanasek, and believed he told Hanasek he saw claimant’s foot slip, the day it happened.

Claimant definitely testified that the piece of pipe he slipped on was not in front of the hoister, but on the side of it, in front of the front wheel of the hoister.

Dr. Joseph A. Lembeck was called as a witness by respondents. He stated that claimant was admitted to the hospital on September 2, 1961, and discharged on September 2, 1961; that he was readmitted on November 13, 1961, and discharged on November 27, 1961; that he saw claimant on August 25, 1961, at which time claimant had an acute low back strain, arthritis of the lumbar spine with hyper-trophic changes in the bodies of the lumbar vertebrae of long standing; and that the diagnosis on the second admission was arthritis of the lumbar spine and lumbo-sacral strain. According to Dr. Lembeck, the records of the hospital showed that claimant had previous back disability and pain on numerous occasions for which he had been treated beginning as far back as July, 1953. Treatment consisted of heat applications (diathermy), physiotherapy, medication and on July 25, 1960, a lum-bosacral support (back brace) was prescribed. Dr. Lembeck further testified that based upon the records of the hospital and his treatment, the diagnosis at the present time was similar to the condition the patient had since 1953; that the patient could have low back discomfort merely by bending forward at the waist. In answer to a hypothetical question, the doctor testified, “The mere movement of the back, in this case the lumbar region, in lifting for something ordinarily, would not cause exacerbation of chronic arthritis, but the mere fact of lifting would cause, or may cause an exacerbation of pre-existing arthritis in the lumbar vertebrae.” The record shows that on August 24, 1961, prior to the incident in question, claimant lifted various objects including air tanks which weighed about 100 pounds.

Also in answer to hypothetical question which included among the facts hypothesized the fact that claimant did not lift something at which time his foot slipped from 2 to ~12 inches, the doctor stated, «* * * jn that particular case, where his foot slipped, it may have been an acute back strain independent of a pre-existing arthritis of the lumbar spine.”

He also testified that the hospital records of previous back condition made no mention of sprain, but recorded pain in the lumbar area. It also appears from the hospital record that there was no notation in the history taken of any slipping prior to the severe pain suffered on the occasion in question.

Dr. Edward H. Bowdern testified on behalf of claimant. He stated he had examined claimant at the request of claimant’s attorney on September 29, 1961, at which time claimant was complaining of pain in the low back area, with pain radiating down the right leg to the knee and pain in the left leg to the buttocks; that the pain was aggravated by bending, stooping, coughing or sneezing; that he had difficulty in getting out of a chair or bed.

The doctor further stated that he examined x-rays of the lower lumbar spine and that no fractures were shown. He also stated that it was his opinion based upon his examination and the x-rays that claimant had a ruptured interver'tebrae disc, which in his opinion, should be confirmed by a myelogram. The doctor also stated that he made further examination on October 6, 1961, October 16, 1961, and January 1962; that the physical findings were not any different from those made on the original examination; that at the time of the last examination claimant was unable to work and was at the time of the hearing unable to work due to spasm in the lumbar muscle; that his difficulty in walking, bending, lifting and stooping make it unable for him to work; that said movements would in the witness’s opinion cause pain. In answer to a hypothetical question which assumed facts disclosed by claimant’s evidence including the alleged slipping on a piece of pipe, the witness stated, “The type of accident as described can cause a ruptured intervertebrae disc.” The doctor also stated that such a set of facts as stated in the hypothetical question could also cause low back strain without causing an intervertebrae disc, and that the complaints detailed in the hypothetical question were such as might be expected in one with a low back strain as well as someone that might have an inter-vertebrae disc.

John Hanasek, who was working with Croner at the time of the incident in question testified on behalf of respondents. He stated that he saw claimant coming with the material on the hoister, and got down from the car on which he was working and walked over to where claimant stopped which was “pretty near straight across” from where they were working; that as claimant “pulled up” he was standing there waiting; that claimant got off the hoister on the left side and walked to the front to take off the materials; that he was standing on the right side at about the center of the pallet, about a foot from it; that he and claimant were facing each other; that claimant’s body was the same as his with relation to the hoister; that the pallet extends beyond the side of the hoister to about the track rail on each side; that he could see the upper part of claimant’s leg from “mid calf by the knee” but not from the pallet down; that he and Miranda bent over to pick up the material and claimant said “Oh my back;” that he raised up and asked claimant if he wanted to be carried to the office; that claimant stayed leaning against the hoister for about 45 minutes then got on the hoister, drove off, and worked the rest of the day.

On cross-examination, the witness stated he was looking at the material and not at claimant when he bent over; that he was not in a position to see claimant’s feet; that Croner was not at the hoister helping unload the material but walked over after when claimant exclaimed “Oh my back”.

We have carefully considered the evidence in this case and have concluded that there was ample evidence to support the award of the commission. In the first place the burden was upon the claimant in this case to show an accident which arose out of and in the course of the employment. Claimant attempted to do this by his testimony and that of Croner to the effect that when he bent over to lift the material his foot slipped. The commission was not bound to believe this testimony especially if there was other evidence or circumstances in the case from which the commission could believe that claimant was not telling' the truth about this all important element of his case. In deciding the case the court was influenced by the fact that the evidence showed no reference in the medical records or the employer’s records of the alleged slipping.

The testimony of Croner that claimant was in front of the hoister and that he was approaching the front end of the hoister cannot be considered since it is contrary to the testimony of claimant. Claimant testified that when he bent down he was on the left side of the pallet and about in the middle thereof, and that both Hana-sek and Croner were opposite him standing side by side. It also appears from the evidence that Croner situated as he was to the left of Hanasek could not have seen claimant’s foot at the time the latter stooped down to pick up the material. Hence, the commission was authorized to reject Croner’s testimony that he saw claimant’s foot slip on the rail. There were also discrepancies in the testimony of claimant himself which reflect on his credibility, such as his evasive and contradictory testimony as to the conditions of his back prior to August, 1961, and testimony with respect to revealing to his associates and superiors the fact that he had slipped on pipes at the time in question.

It has been held time and again that the commission does not have to accept the testimony of claimant as true. Foster v. Carter Carburetor Corp., Mo.App., 264 S.W.2d 904; Garner v. Research Clinic, Mo.App., 280 S.W.2d 416, 1. c. 423. This is especially true if there is a substantial basis from all the evidence for a finding that such testimony is untrue. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136; Banks v. City of Hannibal, Mo.App., 283 S.W.2d 909, 1. c. 913. This rule also applies to the testimony of claimant’s witnesses. Snowbarger v. M. F. A. Central Co-op., Mo., 349 S.W.2d 224.

Under the record in this case it is clear that the finding of the commission is supported by competent and substantial evidence; that it was a reasonable result for the commission to reach and not contrary to the overwhelming weight of the evidence. Nor is there merit to the point that the commission in making its award did not give due consideration to the referee’s finding and award. It is true that the finding of the referee is of importance and should be considered together with all the facts and circumstances. Such findings carry considerable weight, especially where there is a question as to the credibility of witnesses. But such findings are not conclusive, either on the commission or this court. Banks v. City of Hannibal, supra; Michler v. Krey Packing Co., supra. There is nothing in the record to show that the commission failed to consider the referee’s report.

Our conclusion that the commission could reasonably find that claimant suffered no accident makes it unnecessary to rule on complaints made with respect to the second paragraph of the commission’s findings.

The Circuit Court had no basis for disturbing the commission’s award.

The judgment is affirmed.

WOLFE, Acting P. J., and L. F. COT-TEY, Special Judge, concur.


author: BRADY, Commissioner.

text:
    Marcella Rose SCHMIDT and Olin R. H. Schmidt, Her Husband, Plaintiffs-Appellants, v. Marie VOSS and Raymond A. Voss, Her Husband, Lorraine Holk and Charles Holk, Her Husband, Edward J. Strebler and Mable T. Strebler, His Wife, and Frances Saporita and Frank Saporita, Her Husband, Defendants-Respondents.
    No. 31972.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Edward 0. Hancock, St. Louis, for plaintiffs-appellants.
    Joseph A. Herbers, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

The sole issue presented by this appeal is whether the trial court had authority to tax one-half the costs in a partition action against the appellants who had a one-fifth interest in the property as heirs at law of the deceased. The parties will be referred to by their designation in the trial court.

The facts are very simple. The plaintiff, Marcella Rose Schmidt, together with the defendants Marie Voss, Lorraine Hoik, Edward J. Strebler and Frances Saporita, were the heirs at law of Louis J. Strebler, who died intestate while owning a piece of real property in the City of St. Louis. The other parties are the husbands and wife of these heirs. The plaintiffs filed a partition suit with regard to this property. At the conclusion of the hearing the trial court ordered that the parties be granted sixty days in which to sell the property at private sale and if no sale was made by that time, a partition sale was to be held. The plaintiffs selected a real estate agent and the defendants selected another. A firm offer of $11,000.00 for the property was obtained but the plaintiffs refused to sell at that figure. No better offer was obtained during the specified period and the property was ultimately sold at public sale for $9,525.00.

When the report of the sale was filed, the court stated: “I want the record to show that I am dividing the costs in this case one-half to be paid by the plaintiff and one-half to be paid by the defendant and the reason I am doing this is based upon the information that has come to me regarding the uncooperative methods of the plaintiff in the case. Be sworn, Mr. Herbers.” Herbers' testimony was to the effect that there was a firm offer of $11,000.00 which was rejected by plaintiffs and that the plaintiffs were informed of this offer by their counsel. The costs of the sale were then reported to the trial court which entered its order approving the costs and sale and allowing fees to the special commissioner who sold the property and to plaintiffs’ attorney. The order then provided r “Clerk directed to have file taxed for court costs and said court costs, including all allowances and necessary expenses to he taxed equally against the plaintiffs and defendants.”

When the trial court indicated what its order was to he, the plaintiffs’ counsel objected and after the order was entered, plaintiffs filed their motion to set it aside and to tax costs based upon the respective interests of the parties; i.e., one-fifth to each. The trial court heard testimony on this motion. From this it appeared the property was appraised at $12,500.00 for inheritance tax purposes. The appraisal at this figure occurred over a year prior to the sale. It also appeared that the real estate brokers listed the property at $14,000.-00. Plaintiffs then requested the trial court to set aside the previous order and tax the plaintiffs costs at one-fifth of the total. The trial court stated: “Mr. Hancock, you left something out here. I didn’t make that order and come to that decision because they refused to sell the property. I made that decision based on information that had come to me that you and your client had refused to cooperate at any time in the case and that your client said that he would do everything possible to make this situation unharmonious as far as the four defendants are concerned. I want you to come in Chambers and I want the Reporter to read that testimony back to you.” It does not appear from the transcript which testimony the court referred to. It does appear that some testimony was read. By their statement of facts in their briefs filed with this court the parties agree that it was Mr. Her-bers’ testimony that was read. The trial court denied plaintiffs’ motion and this appeal followed.

Sec. 514.220, RSMo 1959, V.A.M.S., is the same as Civil Rule 77.21, V.A.M.R., and, in that part pertinent to the issue here presented, provides: “In all cases founded on the statutes concerning the partition of lands, the costs shall be paid by the parties plaintiff and defendant, according to their respective interests in the lands which may be the subject of the proceedings; * * This language is clear and unequivocal. It requires no resort to the rules of statutory construction to ascertain its meaning. Applied to the factual situation in the instant case it requires costs to be taxed on the basis of the one-fifth interest held by each of the parties here involved. Cooper v. Garesche, 21 Mo. 151; Oxley v. Oxley, 239 Mo.App. 894, 203 S.W.2d 134, 1. c. 137. Citing Devoto v. Devoto, Mo.App., 39 S.W.2d 1083, the defendants contend the trial court, under its power to adjust the equities between the parties, had authority to tax the costs in accordance with its order. Of course Devoto cannot be construed to be authority for any such contention. In that case the equities to be adjusted were the claims of each of the parties as to certain sums allegedly due to the other. There was no dispute as to the division of the proceeds of the partition sale nor as to the assessment of costs both of which matters proceeded directly upon the interest of the party in the property as required by Sec. 514.220, supra. As in Davidson v. I. M. Davidson Real Estate & Investment Co., 249 Mo. 474, 155 S.W. 1 the equities which the court adjusted dealt solely with the claims of the respective parties to that share of the proceeds of the sale belonging to the other party arising from debts allegedly owed the first party. We can- find nothing in these cases nor in any case of which we are aware which would authorize the trial court, under its power to adjust the equities, to tax costs in the manner in which the trial court has proceeded in this case.

The judgment should be reversed and the cause remanded to the trial court with directions to set aside that portion of its order taxing costs and, in lieu thereof, to tax the costs in accordance with the views expressed herein and as provided in Sec. 514.220, supra. The Commissioner so recommends.

PER CURIAM:

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

The judgment should be reversed and the cause remanded to the trial court with directions to set aside that portion of its order taxing costs and, in lieu thereof, to tax the costs in accordance with the views expressed herein.

WOLFE, P. J., RUDDY, J., and ROY W. McGHEE, Special Judge, concur.

ANDERSON, J., not participating.


text:
    Gail Frances McDANIEL and Patricia Ann McDaniel, minors, by Pearl M. Eisnogle, next friend, Plaintiffs-Appellants, v. Nettie LOVELACE, Administratrix of the Estate of Clayton Thomas Lovelace, Joe Ray, Inc., A Corporation, and Douglas Wayne Clemons, Defendants-Respondents. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Respondent, v. WESTERN CASUALTY & SURETY COMPANY, a Corporation, et al., Defendants, Gail Frances McDaniel and Patricia Ann McDaniel, minors, by Pearl M. Eisnogle, next friend, Defendants-Appellants.
    Nos. 31622, 31623.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.

      Pannell & Hess, W. L. Pannell, Festus, for plaintiffs-appellants.
    Dearing, Richeson, Weier & Roberts, H. L. C. Weier, Hillsboro, for defendant-respondent Nettie Lovelace.
    Smith & Colson, Taylor Smith, Jr., Farmington, for defendants-respondents Joe Ray, Inc. and Douglas Clemons.
   ANDERSON, Judge.

The appeal in cause No. 31,623 involves the validity of a nunc pro tunc order entered in the case of the Fidelity and Casualty Company of New York, a Corporation v. Western Casualty Company, a Corporation, et al., being cause No. 32,566 in the Circuit Court of Jefferson County. The appeal in cause No. 31,622 is by plaintiffs in the case of Gail Frances McDaniel and Patricia Ann McDaniel by Pearl M. Eisnogle, next friend vs. Nettie Lovelace, administratrix of the Estate of Clayton Thomas Lovelace, Joe Ray, Inc., a Corporation and Douglas Wayne Clemons, from an order of the Circuit Court of Jefferson County sustaining a motion to dismiss the case as to defendant Nettie Lovelace, administratrix. A somewhat detailed statement of facts will be necessary to a complete understanding of the matter involved in said appeals.

On the 12th day of March, 1958, there was a collision on Highway 61-67 in Jefferson County between a Buick automobile owned by Clayton Lovelace, and a tractor-trailer owned by Joe Ray, Inc., a Corporation and being driven at the time by Douglas Wayne Clemons. In the Buick automobile, at the time of the collision, were Clayton Lovelace, John McDaniel, Jr., and Anthony Joseph Bachek. All three of these men were killed instantly. Lovelace left surviving him, a widow and three minor children. McDaniel left surviving him, two minor children. Bachek left surviving him, a widow and three minor children. Nettie M. Lovelace was appointed administratrix of the estate of Clayton Thomas Lovelace. Fidelity insured Lovelace against liability imposed by law in the operation of his automobile. McDaniel owned a 1955 Ford automobile and was insured by Western Casualty. It contained omnibus coverage. Joe Ray, Inc., owner of the tractor-trailer, was insured by Travelers Insurance Company.

A controversy arose over who was driving the Buick automobile at the time of the accident, and as to the duties of the respective insurance companies under the terms of their policies. To settle this matter, Fidelity, on May 21, 1958, instituted the above mentioned action, which sought a declaratory judgment to determine the identity of the driver of the Buick, and to declare the rights and duties of Fidelity under its coverage with respect to liability as a result of the accident and the rights and duties of Western under its policy issued to McDaniel with respect to the matter. The defendants in said action were Western; Joe Ray, Inc.; Clemons, the driver of the tractor-trailer; Travelers Insurance Company; Southwestern Bell Telephone Company, whose property was damaged by the collision; Union Electric Company of Missouri, whose poles and wires were likewise damaged; the two McDaniel children; Nettie M. Lovelace, personally and as administratrix of the estate of Clayton T. Lovelace; the Lovelace minors; the Bachek minors; David Compton, the operator of a restaurant in the vicinity of the site of the collision, who plaintiff believed would assert some claim for damages to his property as a result of the collision; and William Vaughn and Homer Probst, the owners of the restaurant building operated by Compton who plaintiff believed would assert some claim for damages to their property. The issues were joined in said action, and on January 12, 1959, the record shows the following order entered in said cause:

“Set for trial Jan. 22, William Pannell appointed Guardian Ad Litem for Bachek Minors. J. M. Feigenbaum, appointed Guardian Ad Litem for Lovelace Minors.”

It will be observed that the two McDaniel minors were not included in the order.

On December 15, 1958, Gail Frances McDaniel and Patricia Ann McDaniel, the minor children of John McDaniel, Jr., brought suit by Pearl M. Eisnogle, their next friend against Nettie Lovelace, ad-ministratrix of the Estate of Clayton Thomas Lovelace, Joe Ray, Inc., a Corporation and Douglas Wayne Clemons. This suit was filed in the Circuit Court of Jefferson County, and is cause No. 32,839 in said court. It sought damages for the death of their father due to the alleged negligence of the defendants.

Thereafter, the case of Fidelity and Casualty Company v. Western Casualty Company, et al. came on for trial. In that case the trial court submitted the issue as to who was driving the Buick at the time of the collision to a jury. The jury by its verdict found that John McDaniel Jr., was driving the car at the time of the accident. The other issues were tried to the court. The trial resulted in a decree declaring that John McDaniel, Jr., was the driver of the Buick at the time of the collision, and that Fidelity and Western should bear the costs of property damage equally between them; that the death claims should be borne in the ratio of two parts by Fidelity, to one part by Western, and that costs and expense of litigation should be borne by said companies at the same two to one ratio. This ratio was determined by the fact that the Fidelity policy had coverage for liability in the sum of $50,000 — $100,000 on Lovelace and McDaniel had coverage under the Western policy in the sum of $25,000— $50,000. From this decree, appeals were taken to this Court by Western and the McDaniel minors. This Court, after an examination of the provisions of both policies, held that the coverage afforded by the Fidelity policy was the primary insurance, and that the coverage of Western’s policy was for excess insurance, and liability under it was only available for the recovery of any sum over the amount of Fidelity’s coverage. We also affirmed that part of the judgment declaring that McDaniel was the driver of the Buick automobile at the time of the collision. Fidelity & Casualty Co., of New York, v. Western Casualty and Surety Company, Mo.App., 337 S.W.2d 566.

Thereafter, and on January 5, 1961, Nettie Lovelace, administratrix of the Estate of Clayton Thomas Lovelace filed a motion in the damage suit instituted by the McDaniel minors to dismiss the cause as to her. The grounds alleged in said motion were that since the court found that John McDaniel, Jr., father of the plaintiffs was driving the Buick automobile at the time of the collision in question, and since the only negligence charged against Clayton Thomas Lovelace was with respect to the driving and operation of said Buick automobile, plaintiffs in said action were not entitled to continue the action against her as administratrix of her husband’s Estate. On January 9, 1961, said motion was, by the Court sustained.

Thereafter, and on October 24, 1962, the McDaniel minors filed in said damage suit a motion to set aside the order of January 9, 1961, dismissing said action as to Nettie Lovelace, administratrix, and to reinstate the latter as a defendant. The grounds of said motion were that since there was no guardian ad litem appointed by the Court in Fidelity Casualty Company v. Western Casualty & Surety Company, the declaratory judgment action and in which action they were named as defendants, the judgment in said action was void and invalid to them. This of course was a collateral attack on the judgment, which may not be permissible, a question not before us. See 43 C. J.S. Infants § 108b, pp. 279-280.

On October 30, 1962, Fidelity filed in the Circuit Court, a motion for an order nunc pro tunc in Fidelity and Casualty Company v. Western Casualty and Surety Company, et al., the declaration judgment action. Said motion is in words and figures as follows:

“Comes now plaintiff and shows to the Court that in the order made by this Court in the above entitled cause on the 12th day of January, 1959, set forth in Book 54, Page 190 of the Records of this Court on file in the office of the Clerk of the Circuit Court of Jefferson County, Missouri, there appears the following recital:
“ ‘Now on this day the Court appoints J. M. Feigenbaum Guardian Ad Litem for Lovelace minors and William L. Pannell as Guardian Ad Litem for Bachek minors and cause is by the Court set for trial on January 22, 1959.’

“Plaintiff shows to the Court that said order, as appears from the minutes, files and records of the Court should recite as follows:

“ ‘Now on this day the Court appoints J. M. Feigenbaum Guardian Ad Litem for Lovelace Minors and William L. Pannell as Guardian Ad Litem for Bachek and McDaniel minors and cause is by the Court set for trial on January 22,1959.’
“WHEREFORE, plaintiff moves that the order of the Court hereinabove set forth be corrected and amended in the particulars hereinabove set forth and entered nunc pro tunc to show the true order of this Court.”

Thereafter on the 19th day of March, 1963, the Court sustained the foregoing motion, the material part of its order sustaining same being as follows:

* * *
“And plaintiff shows to the Court that in addition to the said William L. Pannell being appointed as guardian ad litem for the Bachek minors, the said William L. Pannell was also appointed guardian ad litem for the McDaniel minors, to wit, Gail Frances McDaniel and Patricia Ann McDaniel, as appears from the minutes, files and records of the Court; and plaintiff moves that said order be corrected and amended, and entered nunc pro tunc, in order to show the above facts.
“And said motion being heard, and it appearing that due notice thereof has been given to all parties concerned, and the Court being satisfied from the files, minutes and records of the Court, and by proper evidence that the said William L. Pannell was appointed guardian ad litem for the McDaniel minors, said judgment is now amended nunc pro tunc as of the 12th day of January, 1959, to read as follows, to wit:
“ ‘Now on this day the Court appoints J. M. Feigenbaum Guardian Ad Litem for Lovelace Minors and William L. Pannell as Guardian Ad Litem for Bachek and McDaniel minors and cause is by the Court set for trial on January 22, 1959.’ ”

On March 29, 1963, a motion to set aside the above order and to enter an order overruling same was filed by defendants, Gail Frances McDaniel and Patricia Ann McDaniel. On May 13, 1963, this motion was overruled.

On May 21, 1963, defendants, Gail F. McDaniel and Patricia Ann McDaniel gave notice of appeal “from the order of the Circuit Court entered in this action on the 13th day of May, 1963.”

In the damage suit, the Court, on May 13, 1963, overruled the motion to set aside the order of January 9, 1961, dismissing said action as to Nettie Lovelace, adminis-tratrix and reinstate the latter as a party defendant. Thereafter, on May 21, 1963, plaintiffs filed in said action their notice of appeal, which recited that plaintiffs appealed “from the order of the Circuit Court entered in this action on the 13th day of May, 1963.”

At the outset, we are faced with a motion to dismiss the appeal in cause No. 31,622, being the appeal by the McDaniel minors from the order dismissing the damage suit action as to defendant Nettie Lovelace, Administratrix. This motion was filed by Respondent, Nettie Lovelace. The motion must be sustained for the reason that the order appealed from was not a final judgment for the purpose of appeal, since it did not dispose of the case as to all the parties. Civil Rule 74.01, V.A.M.R.; Reis v. Travelers Indemnity Co., Mo.App., 353 S.W.2d 120; Sutton v. City of St. Joseph, Mo.App., 265 S.W.2d 760; Lawson v. Village of Hazelwood, Mo.App., 356 S.W.2d 539.

Respondent Fidelity in cause No. 31,623, being the appeal from the nunc pro tunc order entered in the declaratory judgment action, has also filed a motion to dismiss the appeal of the McDaniel minors in said cause. The grounds of said motion are: (1) that the transcript does not show the date the Court made the order, hence, it is not shown that the appeal was taken within the time prescribed by law; (2) that the time for appeal was not extended by the motion to set aside the order, which motion was filed March 29, 1963, and overruled May 13, 1963; hence the appeal taken May 21, 1963 was out of time, not being filed within ten days after the order.

Pursuant to the authority of Rule 83.03 and 82.12 of the Rules of the Supreme Court of Missouri, and Whealen v. St. Louis Soft Ball Association, 356 Mo. 622, 202 S.W.2d 891, this Court of its own motion issued an order in said cause directed to the Circuit Clerk of Jefferson County, directing him to send to this Court a certified copy of the record entry in the trial court showing the entry of the order nunc pro tunc, and the date thereof. The Clerk complied with this order, and from said certified copy we find that the nunc pro tunc order was made and entered in the records of the trial court on March 19, 1963. We have ordered that said certified copy be considered a part of the transcript of the record herein. The transcript therefore shows that the order nunc pro tunc was made March 19, 1963.

We will next proceed to the second ground urged in the motion to dismiss, i. e., that the time for appeal was not extended by the motion to set aside filed in the trial court on March 29, 1963. This motion was to all intents and purposes a motion for new trial and will he so regarded.

Respondent has cited in support of his contention: State ex rel. and to Use of Grant v. Juden, Mo.App., 50 S.W.2d 702; Lasswell v. Lasswell, Mo.App., 192 S.W.2d 207; and O’Neal v. Milburn, Mo.App., 112 S.W.2d 124. The case of O’Neal v. Milburn held that a motion for new trial directed to an order overruling a motion to quash an execution was not necessary to an appeal and did not carry the matter over to the next term of Court for the purpose of appeal. The reason given for said ruling was that the motion to quash was not an after judgment motion in the nature of an independent action engrafted on the original suit. The court then held that, since the appeal was taken after the motion for new trial was overruled at a term subsequent to the term at which the motion to quash was passed on, the appeal was not in time. State ex rel. and to Use of Grant v. Juden, supra, held that an order denying a motion for amendment of a judgment nunc pro tunc was reviewable on appeal without the necessity of a motion for new trial. Lasswell v. Lasswell does support Respondent’s contention. That case held that in a proceeding to amend a judgment nunc pro tunc, such amendment becomes final at the time made, and is not carried over by a motion for new trial. The appeal in that case was therefore dismissed because not taken within ten days after the nunc pro tunc order was made.

Supreme Court Rule 82.01 provides that the right of appeal shall be as provided by law. The law is set forth in Section 512.020 RSMo 1959, V.A.M.S. Said section, among other things, provides for appeal from any final judgment, or from any special order after final judgment in the cause. Rule 82.05 provides that the filing of a motion for new trial postpones the finality of the judgment until ruled upon or ninety days have expired. A proceeding for an order nunc pro tunc, such as the one in the case at bar, is an independent proceeding, and in effect a separate lawsuit and the Court’s ruling, therein, in our opinion constitutes a final judgment in a “case,” and not an after judgment order which is an adjunct to a case which has been determined, the purpose of which is to aid or impede the enforcement of said judgment. Such being true, the order nunc pro tunc is in itself a judgment, the finality of which may be postponed by a motion for new trial under Rule 82.05. We are led to this conclusion by the decision of our Supreme Court in Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55. In that case the Court held that although a motion for new trial was not necessary to appellate review in a workmen’s compensation case, the actual filing of one postponed the finality of the judgment for the purpose of appeal. The Court said (200 S.W.2d 1. c. 64) :

* * * there can be no doubt that a motion for a new trial is an authorized motion in any kind of case, and has the same effect to postpone the finality of the judgment in any case, because under the new code it performs not only all of its former functions as á motion for new trial but also those of all former record proper motions. (Emphasis ours.)
“ * * * Undoubtedly this was the purpose of the new code, and Rule 3.24 (Now Rule 82.05) construing it, in order to avoid the confusing situation prevailing under the old procedure, which caused parties to lose rights of appeal because a motion for new trial had the effect to postpone the finality of the judgment in some types of cases while such a motion had no function or effect at all in others.”

In our opinion that since Seabaugh, the rule in Lasswell v. Lasswell, supra, relied on by Respondent is no longer the law in this state. The motion to dismiss the appeal in cause No. 31,623 should be overruled.

In the appeal of the McDaniel minors in cause No. 31,623, which involves the validity of the nunc pro tunc order heretofore mentioned, it is urged by appellants that the order was not based upon any evidence. An examination of the transcript supports this contention. While the order itself recites that the Court was “satisfied from the files, minutes and records of the Court, and by proper evidence that the said William L. Pannell was appointed Guardian Ad Litem for the McDaniel minors,” the transcript fails to show the introduction into evidence the matters referred to in the order nor does the transcript contain any evidence whatever to support this recitation. We cannot assume that proper evidence was introduced upon which said order was made. Civil Rules 82.12 and 82.14 provide that a transcript on appeal shall contain all the evidence necessary to the determination of all questions to be presented to the Appellate Court for determination. Rule 82.14 also provides that if the respondent is dissatisfied with appellants’ transcript he may file such additional part of the record as he deems necessary. The transcript in this case was signed and approved by counsel for both appellant and respondent, as well as by the trial judge. Respondent did not file any supplementary transcript. We must assume therefore that the transcript so approved and filed contains everything touching on the issue raised on this appeal. The .recitations in the order do not prove its validity, since the order itself is being attacked. For the same reason, we cannot presume right action on the part of the Court. This perhaps could be done in a collateral proceeding, but not on appeal in the very case where the order is the matter under attack. We must, therefore, hold that since there is no evidence in the transcript to support the order nunc pro tunc, said order should be reversed.

The motion to dismiss the appeal in cause No. 31,622 is sustained and the appeal therein is dismissed. The motion to dismiss the appeal in cause No. 31,623 is overruled. The order nunc pro tunc in cause No. 31,623 is reversed.

WOLFE, Acting P. J., and L. F. COT-TEY, Special Judge, concur.