source: Caselaw Access Project

author: HOLMAN, Judge. EAGER, Judge

license: Public Domain

text:
    In re Frank X. MATTES.
    No. 52080.
    Supreme Court of Missouri, En Banc.
    Dec. 12, 1966.

      D. Jeff Lance, Frederick H. Mayer, St. Louis, for informants.
    Winston Cook, Jefferson City, and Robert Nagel Jones, St. Louis, for respondent.
   HOLMAN, Judge.

The Advisory Committee of the Missouri Bar (hereinafter referred to as “Informants”) instituted this proceeding by the filing of an information in this court. Therein, in eleven separate counts, they charged Frank X. Mattes (hereinafter called respondent) with professional misconduct and sought an order removing him from the practice of law in this state. Respondent is a duly licensed attorney in this state and maintains offices in both Kansas City and St. Louis.

In due course respondent filed an answer denying the charges made in the information. Thereafter, on May 10, 1966, respondent filed a pleading which we set out in full, as follows:

“Comes now Respondent, Frank X. Mattes and herewith requests leave of Court to withdraw his Answer filed herein and to submit himself to this Honorable Court for such action as the Court may deem appropriate in the premises.

“Petitioner will not further contest this proceeding and begs that the Court will consider the following:

“In his early life, your Petitioner was an only son of a widowed mother and after some three years at the University of Missouri, was unable to support her and complete his formal education. He began his legal training by reading law in the office of the late Thomas P. Burns of Brookfield, Missouri, and was admitted to the Missouri Bar on May 30, 1936, and to the Federal Bar in the Eastern District of Missouri shortly thereafter.
“Your Petitioner is fifty-four years of age, married, and has a dependent wife and four minor children. His entire adult life has been devoted exclusively to the practice of law, and he has neither the training nor necessary condition of health to engage in any other field of endeavor.
“Your Petitioner profoundly regrets the circumstances which have placed him before this tribunal for discipline and begs that this Honorable Court will consider his circumstances and long practice of the law in determining the action which the Court deems appropriate herein. Petitioner believes, and humbly suggests to the Court, that the conduct charged by your Advisory Committee does not require the extreme penalty of disbarment in protecting the public interest.
“Petitioner has cooperated with your Advisory Committee in every respect in connection with the matters entrusted to said Committee and herewith submits himself to the Supreme Court of Missouri for such action as the Court may deem appropriate in the premises.”

In response to the foregoing, informants filed a “Motion for Disciplinary Orders and Judgments” which reviewed the state of the pleadings and concluded with the suggestion that “No issue of fact or law remains in this proceeding since Respondent has withdrawn all pleadings heretofore filed by him. Consequently, this matter now is before the Court for entry of appropriate orders and judgments.” At this point it would have been permissible for us to have entered an appropriate judgment without further proceedings. We concluded, however, that the case should be briefed and argued and hence we entered the following order: “Respondent’s petition to withdraw answer and to submit cause sustained. Cause ordered docketed at the September Term, 1966.” Each side has since briefed and argued the matter and it is now before us for final disposition.

In contested disbarment cases we usually appoint a special commissioner to hold hearings and report his findings of fact and conclusions of law. In view of the pleading filed by respondent we have not appointed a commissioner in this case. The informants have, however, filed in this court the transcript of the hearings held in investigating the conduct of respondent.

In the situation presented, we see no need to set out the charges in detail. Several charges relate to conduct which occurred prior to 1955. Those include: (1) The solicitation of the personal injury claim of Robert J. Cunningham against the “Frisco” Railroad in 1947. It is also charged that, as an inducement for his employment, respondent agreed to pay Cunningham $125 per month as living expenses until the claim might be finally settled. (2) The solicitation in 1952 of the claim of Henry Brondi against the C. B. & Q. Railroad Company for injuries sustained while employed as an extra gang laborer; and (3) the solicitation in 1953 of the claim of Robert R. Moss against the Santa Fe Railroad for personal injuries received while working as a brakeman for said railroad.

The informants held a number of hearings in 1955 investigating the professional conduct of respondent in regard to the aforementioned charges and others. No action was taken at that time, however, and, as stated in the information, “upon the plea of accused and request to the Committee it did strike the matter from its active docket reserving the right to reinstate such charges should any further misconduct or complaint come to the attention of the Committee.”

Other charges involving occurrences subsequent to 1955 were that respondent, acting personally and through laymen, “did seek out and solicit” personal injury claims (against various railroads) from Henry M. Bird in 1960, Jerome L. Fleming in 1961, and Norman John Smith and Charles Leslie Wright in 1962. It was also alleged that respondent was employed by James F. Wisdom to represent him in handling his claim for personal injuries against the Wabash Railroad; that the claim was settled for $10,134 but that respondent failed to pay his client the full amount due him until after Wisdom had consulted another attorney and had threatened to report the matter to the “State [Bar] Committee.”

There was also an allegation that respondent made an arrangement with four laymen to seek out persons injured and endeavor to secure them as clients of respondent in the handling of their claims. It was further alleged that David Page was employed by respondent in 1964 at a salary of $250 per month to contact various officers of the Brotherhood of Railway Trainmen in an effort to get respondent placed upon the list of approved attorneys for the handling of claims of its members. Another count contained the averment that respondent had falsely represented to injured members of the Maintenance of Way Union that he was an attorney for that union with the result that the president thereof, in March 1964, issued a circular advising the membership that respondent was not authorized to represent the union or to handle the cases of the members who had been injured in railroad employment.

Respondent’s brief is devoted entirely to a discussion of the facts shown by the transcript filed herein. As to each charge he has pointed to facts which tend to explain his conduct and in some instances to cast doubt upon his guilt. However, in view of the pleading filed by respondent on May 10, 1966, we consider the allegations in the information to be true and conclude that respondent is guilty of professional misconduct and that he has violated various rules of this court, including S.Ct. Rules 4.11 and 4.28, V.A.M.R. As hereinafter indicated, we have, however, taken into consideration certain evidence which tends to explain and extenuate respondent’s conduct.

We now consider the disciplinary action to be taken in this case. “The main purpose of a proceeding of this nature is to make an inquiry into the fitness of an attorney to continue in the practice of law. Its main objective is not to punish the attorney but the protection of the public and the maintenance of the integrity of the profession and of the courts. The subject has been considered so often that we deem it sufficient to make reference to a number of cases and authorities and so shall not discuss the subject at length. See In re Conner, 357 Mo. 270, 207 S.W.2d 492, loc. cit. 498, 499 (13) (14, 15); In re Speiser, Mo.App., 294 S.W.2d 656, loc. cit. 665(4, 5); In re McLendon, Mo., 337 S.W.2d 56, loc. cit. 61(2); In re Moon, Mo., 310 S.W.2d 935, loc. cit. 938, 939(3); * * * 7 C.J.S. Attorney and Client § 28, pp. 770-774.” In re Randolph, Mo.Sup., 347 S.W.2d 91, 109.

It is our conclusion that the charges in this case and the facts developed in regard thereto do not justify' the penalty of disbarment. We mention some of the extenuating circumstances. In every instance the persons who contacted injured employees in respondent’s behalf were former clients of respondent or friends of long standing and there is no contention that respondent compensated or agreed t*o compensate said persons for their assistance. In regard to the charge that respondent failed to promptly pay Mr. Wisdom the full amount due him, we note that there was some evidence tending to indicate that a dispute existed between respondent and Wisdom as to the amount due. As to the charge that respondent falsely represented that he was an approved attorney for the Maintenance of Way employees, there was evidence that his name had formerly been on their approved list and that he may not have known that it had been removed until the president issued the circular heretofore mentioned. We have also considered respondent’s attitude toward the investigation conducted by informants. Such is described in informant’s brief as follows: “Although respondent personally and by counsel conducted a vigorous defense against the various charges, as he had a right to do, and was successful as to some of them, he met the various charges, issues, and disputes with commendable directness and promptness. He submitted himself to cross-examination as to each charge; and, as far as the record indicates, he did not evade a direct answer to any question.” The ends of justice will be served by disciplinary action less than complete disbarment.

It is ordered that the respondent, Frank X. Mattes, be suspended indefinitely from the practice of law with leave to apply for reinstatement after the expiration of a period of three years from the date of the rendition of this opinion upon a showing that he is then a person of good moral character and fully qualified to be licensed as a member of the Bar of Missouri.

All concur except EAGER, J., who dissents in separate dissenting opinion filed.

EAGER, Judge

(dissenting).

I feel that the offenses and infractions of the Respondent are treated too lightly in the majority opinion, particularly with regard to the supposed explanatory and extenuating circumstances, and that the discipline imposed is insufficient. In my view the Respondent should be permanently disbarred from practice, In re Randolph, Mo., 347 S.W.2d 91, or a substantially longer period should run before permitting Respondent to apply for reinstatement.


author: HOLMAN, Judge.

text:
    Candace Louise PEAK, by her Mother and Next Friend, Margaret E. Peak, Respondent, v. W. T. GRANT COMPANY, Appellant.
    No. 52341.
    Supreme Court of Missouri, En Banc.
    Dec. 12, 1966.
    Wilbur L. Pollard, North Kansas City, Williams, Norton & Pollard, North Kansas City, of counsel, for respondent.
    Rodger J. Walsh, Kansas City, Rafter, Biersmith & Walsh, Kansas City, of counsel, for appellant.
   HOLMAN, Judge.

Action for false arrest and imprisonment. Plaintiff obtained a verdict and judgment for $1,000 actual and $2,000 punitive damages. Defendant appealed to the Kansas City Court of Appeals and that court adopted an opinion affirming the judgment. Upon defendant’s application we ordered the case transferred to this court and it will be determined here “the same as on original appeal”. Civil Rule 84.05(h), V.A.M.R.; Mo.Const. Art. V, § 10 (1945), V.A.M.S. Plaintiff’s sister, Pamela, previously obtained a judgment against Grant growing out of the same occurrence which was affirmed. See Peak v. W. T. Grant Company, Mo.App., 386 S.W.2d 685.

The incident here involved occurred on Saturday afternoon, December 15, 1962, in defendant’s store located in the Antioch Shopping Center in Kansas City North, Missouri. That day was the largest selling day before Christmas and the store was crowded. Mr. Kenneth Burton was the manager of the store and Mr. Terry Knapp, the assistant manager, was serving as floor supervisor.

Plaintiff, then 13 years old, together with her mother, her sister Pam then 16 years old, and her 12-year-old brother Tim, arrived o at the shopping center about 2:30 p. m. to do their Christmas shopping. They decided to separate so they could make purchases without revealing what they were buying for each other. Pam went to the TG & Y Store, her mother to the Crown Drug Store, and plaintiff and Tim went to Grant’s. Tim went to the toy department while plaintiff looked around in other sections of the store. One of defendant’s clerks, Mildred Howard, testified that she observed plaintiff standing at a rack of car coats trying to get her purse closed; that “she was working with her purse trying to close it, but couldn’t because it was too full to close”; that when she sought to wait on her she hurriedly left the department ; that she then suggested to Mr. Knapp that he watch her because she was suspicious of her actions.

Terry Knapp testified that after Mrs. Howard talked with him he started watching plaintiff, and asked Mr. Stawicki, a security officer employed by the shopping center, to help him; that he noticed plaintiff’s purse was very full; that plaintiff began to walk very rapidly, frequently changing directions; that she had been joined by her brother and when they neared the store exit they “ducked” under the railing; that he then asked the officer to stop them; that Mr. Stawicki showed plaintiff his credentials and, at his request, plaintiff and Tim accompanied them to a place near the luncheonette; that plaintiff’s purse was still very full and Mr. Stawicki asked her if “we might see her purse,” but she refused; that her brother grabbed her purse and tried “to hand it to us,” but she grabbed it back away from him; that at that point her older sister Pam came up and asked that they be permitted to leave, but the request was denied; that Mr. Stawicki then left to get a uniformed police officer, and the brother went to get his mother; that he and the two girls then moved to another area of the store, during which time plaintiff disappeared for about three or four minutes; that a few minutes later when plaintiff’s mother arrived she directed that plaintiff hand the purse to Mr. Stawicki who had returned; it was then opened and nothing belonging to defendant was found therein. Plaintiff testified that she was detained almost an hour, and denied having taken anything from the store.

Both Knapp and Stawicki denied touching or holding onto plaintiff at any time, but plaintiff and several of her witnesses testified that they did. A large crowd gathered and observed the proceedings, and plaintiff, according to one witness, was crying hysterically.

On the question of damages there was testimony from plaintiff and members of her family, as well as her minister, that she cried for days after the incident, talked in her sleep, and did not go to school the following Monday.

Defendant’s main contention on this appeal is that the court erred in giving Instruction No. 1 because it submitted the issue of Knapp’s agency without any definition of that subject. The instruction reads as follows:

“[MAI No. 23.04, modified — offered by plaintiff] Your verdict must be for plaintiff if you believe: First, witness Knapp was agent for, and at all times mentioned herein was the agent of, defendant W. T. Grant Company, and acting for and on behalf of the defendant and within the scope of his employment, and Second, witness Knapp intentionally restrained plaintiff against her will, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.”

It will be noted that the instruction was basically MAI 23.04. However, plaintiff had alleged in her petition that “At all times herein mentioned, one Terry Lee Knapp was the Assistant Manager of the store of defendant W. T. Grant Company, and was acting in that capacity for and on behalf of defendant W. T. Grant Company, and within the scope and authority of his employment.” Defendant, in its answer, had denied that allegation and hence it was a contested issue in the case Therefore, plaintiff properly included paragraph “First” submitting the issue of agency in a manner similar to that suggested in MAI 18.01. Plaintiff did not, however, follow the directions under “Notes on Use” relating to 18.01 which stated that “[w]hen the issue of agency is submitted, the appropriate definition must also be submitted. See 13.02 to 13.06.” MAI 13.02 would appear to have been appropriate for that purpose.

In connection with a consideration of the necessity of definitions concerning agency we note that it is stated in MAI 13.01, that “As the pattern instructions submit only ultimate issues, a question of respondeat superior liability might be submitted simply ‘The driver Jones was operating the (defendant’s) motor vehicle within the scope and course of his agency for (defendant).’ But these words alone are not apt to mean much to lay jurors, so some clarification is needed. The definitions following are intended to supply this clarification.”

We have concluded that the court committed reversible error in failing to give the jury an instruction containing an appropriate definition upon the issue of agency. The basic theory concerning the use of MAI is that when an approved instruction is applicable it must be given to the exclusion of any other instruction on the same subject. In choosing appropriate instructions and modifications thereof it is essential that attorneys carefully consider the committee comments and follow the directions contained in “Notes on Use.” As stated at page XXXIV in Vernon’s MAI, “The notes on use following each instruction dictate the circumstances under which the instruction may be used. These must be followed.” Unless those directions are followed the use of the comparatively new MAI procedure cannot be successful. In this instance the directions were not followed, as it is unequivocally stated under “Notes on Use” of 18.01 that when agency is submitted the appropriate definition must also be submitted. For the reasons indicated we rule that the judgment must be reversed and the cause remanded for a new trial.

Defendant also contends that plaintiff did not make a submissible case because it had reasonable grounds to believe that plaintiff had wrongfully taken merchandise and hence, under § 537.125 RSMo 1961 Supp., V.A.M.S., it had a right to detain her in a reasonable manner, for a reasonable length of time, for investigation, which was all that was done. We think our factual statement is sufficient to demonstrate that there was substantial evidence to support the submission of the case both as to actual and punitive damages and we accordingly rule this point against defendant. A defense based on § 537.125, supra, was submitted to the jury in Instruction No. 4.

There is a contention relating to admission of evidence which we deem advisable to consider as it will likely recur in the event of another trial. Plaintiff’s Exhibit No. 2 was defendant’s Operation Manual on Shoplifting. Over objection the court permitted the following portions to be read to the jury:

“All employees should be familiar with procedures for handling shoplifters as outlined below, and managers should review them with employees at least twice a year.
“A. Handling of shoplifters. Alertness of store employees is the best way of preventing shoplifting. Salespeople should attempt to serve suspicious shopper promptly, to discourage the possibility of shoplifting. An employee actually seeing a shopper conceal merchandise should approach the shopper immediately and in a courteous way ask for payment of the merchandise by saying, ‘Do you wish to pay for the (blank) you have in your bag?’ Prompt attention in this matter will prevent shoplifting in most cases. To call for supervisor when shoplifting is suspected, salesperson should call register number, followed by one-half. If the register is number twenty-five, she would call twenty-five and one-half. Such a call will indicate shoplifting to the supervisor, who will come immediately.
“B. Apprehending of shoplifters. In cases when it is desirable to make an arrest, the procedures outlined below must be carefully adhered to. A shoplifter, after having been detected, is to be watched until he or she leaves the store. * * *
“Employees should never attempt to apprehend shoplifters, nor is anyone to be detained on the unsupported accusation of a saleswoman. The manager, or in his absence the assistant manager, is to be notified of suspicious appearing persons. An employee who sees merchandise taken is to ask another employee to call the manager or assistant manager while she continues to watch suspect, for suspects often drop merchandise or return it to counter when they feel they were seen taking. The detection of a person stealing is not to be cause for excitement or loud talking. Do not try to make an example of a supposed thief as a warning to other people, as sympathy is usually with the accused, and witnesses hope that you are wrong and accused is right. * * *
“The best way to approach a person who has merchandise which has not been paid for is to ask the person, ‘Did you forget to pay for that article?’ Or, if merchandise is concealed while in the store, ‘You have (blank) in your hand; did you keep it and forget to pay for it?’ Of course, if the store employee is vigilant he will know whether the merchandise is still in the possession of the suspect. Never detain a person upon uncorroborated word of saleswoman or customer, as they may be mistaken or suspected person may have passed it to a confederate and have nothing on him when stopped. * * *
“In stores in which office is within view of sales floor it is advisable to take shoplifter to stockroom, employees’ restroom, or other place not within the view of the sales floor; but if a confession is obtained promptly the suspect should either be released (if a mistake was made) or arrested.”

Defendant says that those directives were not admissible because they were irrelevant and constituted confidential legal advice between defendant and its employees. Defendant has not cited any case in support of that contention. - Pláintiff, in support of her contention of admissibility, relies entirely upon Peak v. W. T. Grant Company, supra, in which the exhibit was held to be admissible. We agree with defendant’s suggestion that the court in Peak, supra, relied, in part, upon the fact that the material in question was first brought into the case when defendant’s counsel questioned certain witnesses concerning it. However, the court also stated that the exhibit, “as it concerned shoplifting instructions and procedure was material to the issue of Knápp’s authority. It was also material to the issue of punitive damages.” 386 S.W. 1. c. 692.

While we have found very little authority directly relating to the subject we have concluded that the quoted portion of the exhibit was properly admitted. Those were simply rules adopted by defendant governing the conduct of its employees in handling shoplifting situations. As stated in the companion case, “defendant is liable for the wrongful árrest and detention of plaintiff only if its employee, Mr. Knapp, in so doing acted within the scope of his authority, express or implied.” 386 S.W.2d 1. c. 689. It seems to us that the written directions of defendant to its employees is proper evidence for the jury to consider m determining whether Knapp was acting within the scope of his authority. Also, those rules should have been of assistance to the jury in determining whether defendant’s conduct was “willful, wanton, or malicious,” and hence whether punitive damages should have been awarded. It should perhaps be mentioned, by way of analogy, that the employer’s safety and operating rules governing the conduct of the employees of railroads are usually held admissible. As indicated, we hold that the quoted portion of the exhibit was admissible.

Other points briefed relate to matters which will not likely recur upon another trial and need not be discussed herein.

Reversed and remanded.

All concur.


author: HIGGINS, Commissioner.

text:
    Ruby Dee STEPHENS, Respondent, v. Helen Joyce GUFFEY, Appellant.
    No. 51725.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.

      Larry M. Woods, Columbia, for respondent; Orr, Sapp & Woods, Columbia, of counsel.
    Terence C. Porter, Columbia, for appellant; Welliver, Porter & Cleaveland, Columbia, of counsel.
   HIGGINS, Commissioner.

On December 23, 1963, at 4:30 p. m., Ruby Dee Stephens was driving her 1957 Oldsmobile and, while stopped at an intersection, was struck from the rear by Helen Joyce Guffey driving her 1959 Chevrolet sedan at a speed of 20 or 25 miles per hour. The impact was “fairly hard” and knocked Mrs. Stephens 30 to 35 feet forward. Repair estimate on the Oldsmobile was $330.-19; the Chevrolet sustained $400 damage. Mrs. Stephens had a verdict for $19,670 for personal injuries and $330 for property damage. Appellant’s points question neither the submissibility nor the property damage but are concerned with injuries and causation.

Appellant’s Point I is that the court should have ordered a new trial “for the reason that the verdict is too large to be sustained by the evidence adduced on any theory except that the plaintiff’s condition at the time of trial was the direct and proximate result of the accident which was shown in evidence and since the evidence on this point was too unsubstantial and uncertain to justify such finding the verdict is clearly erroneous and must be reversed.” Appellant concedes that plaintiff suffered an injury when struck from the rear by defendant on December 23, 1963, but takes the position that the verdict is so grossly excessive as to require reversal upon two theories: “First, the size of the verdict is such that to be sustained it must be based upon plaintiff’s evidence of continued complaints of pain and disability and repeated hospitalization with respect to conditions, the causes and nature of which were so uncertain as to be totally incapable of being proven to be the direct and proximate result of the accident. Second, since plaintiff’s own evidence shows that her continued complaints and disability may be the result of rheumatoid arthritis and drooping or sloped shoulders, neither of which was in any way connected with the accident, there was a failure of proof with respect to causation.”

In addition to the evidence of the severity and type of collision, plaintiff, a 29-year-old mother of two children, experienced immediate dizziness and pain in her neck. The pain persisted as a dull ache “all that evening,” and when she arose the next morning she was so sore she could hardly move. Her neck hurt “all the way around.” She went to her work at Hubbard Heating in Columbia where she had done general office work for seven or eight months, but after about an hour she went to her physician, Dr. James Denninghoff. She had never had any difficulties with her neck, back, hands, arms, or shoulders prior to the collision; she had led a normal, active life, and had no difficulty of a physical nature. Dr. Denninghoff prescribed ultrasound treatments which send sound waves into affected areas, muscle relaxant and pain tablets. She continued her work and took, the treatments every day except Christmas in the week following. She vomited on the first day and had sensation of liquid in her neck, “it made a squashing sound.” Dr. Denninghoff kept increasing the pain medicine and, on January 10, 1964, put her in the hospital. She was there for six days and received cervical traction accomplished by putting a strap around her chin and pulling her head back by S-pound weights as she lay flat. She could not stand the constant pull so the application was made “on two hours and then off an hour.” In addition to the traction she received pain tablets, sleeping pills, and heating pad treatment. She returned to her work but after a day or two her arms started bothering her and when she moved them there was a “popping or thudding noise * * *. The left arm got very difficult to use.” On January 27, 1964, she was returned to the hospital and to the care of Dr. Glenn McElroy, an orthopedic specialist. She 'was there for two weeks receiving cervical traction and physical therapy which included ultrasound, heat packs, and automatic traction similar to that taken three times a week between the two periods in the hospital. Automatic traction pulls the head up with twenty pounds of force and then releases. The treatment lasts twenty to thirty minutes. Following the second hospitalization she returned to work but she took codeine, tranquilizers, and relaxants, and continued her therapy. On March 28, 1964, she was again admitted to the hospital. “It was my back and my right leg — were beginning to bother me plus the fact that my shoulders and arms hadn’t gotten any better and were still hurting quite badly.” Leg traction through use of S-pound weights was started during this third hospitalization which lasted until April 13, 1964. She attempted some of her work while in the hospital but her employer needed part-time help to assist her. In September, “ * * * my back and leg got considerably worse * * * and then the arms and the neck hadn’t gotten any better and at times, I could use my arms for awhile but after using them so long, things would fall out of my hands and they — they would get numb. After an hour’s or so rest, I could use them some again, but they don’t work quite right and at times I would get where I couldn’t write.” On October 26, 1964, she gave up her job and was readmitted to the hospital. She stayed until November 20, 1964, during which period a myelogram was performed consisting of injecting dye into her spine. This process resulted in headaches and waves of pain upon movement. She also received her therapy, added whirlpool baths and began receiving painful M.S. electric shock. Upon release she continued such treatments and, in January, 1965, she took part-time employment at Columbia Service Bureau and was unable to work full time when her case was tried in May, 1965. At trial her right leg and back hurt. Her left shoulder hurt some but most of the pain in her neck is on the right side. Her right arm was worse. The pain in her right leg was down the inside, and the outside felt “numbish.” She had muscle cramps and “charley horses” in her legs; “they draw quite badly” and the leg won’t straighten out. Her right hip also hurt and there was a sharp pain a good bit of the time in her lower back. It hurt for her to turn her head. She had trouble walking; she had fear of being jostled; housework hurts; her leg cramps when driving; she could not care for her hair as quickly; and she was no longer able to be active. Where she formerly made $90 per week pay, she now averages $45 to $50 per week. She takes sleeping bills and Excedrin and tires easily. She began limping in March, 1964, and cannot now walk without a limp. Her hospital bill was $1,533; Dr. McElroy’s bill was $376. She had a bill from the University of Missouri Medical Center for consultation, tests, and X rays of $302.50, a bill of $50 from Dr. Denninghoff, and a drug bill of $75. All the bills were said to result from the collision and were described by the doctors as reasonable and necessary. She had a total loss of wages of $3,100. These special damages exceeded $5,400.

Thomas Hubbard, Mrs. Stephens’s employer, observed her during her 8 a. m. to 4:30 p. m. working hours, and knew of no physical impediment prior to December 23, 1963. She was never off work and he knew of no complaints or trouble prior to the collision. After December 23, 1963, she seemed extremely tired and when she reached down to pick up something, “ * * you could hear her muscles * * * you could hear what Sounded like a squeak.” In respect to her walking, “She would kinda sidle * * * shuffle along instead of walking like a person normally would.” She was alert and able to get around well before the collision but became more cautious, less efficient, and slower afterward. Prior to December 23, 1963, she was cheerful, not emotionally upset, and a normal, active young woman.

Mrs. Stephens’s next employer, Merle Buck, hired her February 16, 1965, for part-time work with knowledge of her disability. He noticed “an apparent discomfort or disability * * * and the nature of this discomfort appears to be in the back, neck and perhaps legs. * * * I have observed a stiffness in the movement of the head and neck. I have observed an apparent stiffness in the spine — in the back in observing her walking and sitting down and rising from a chair.” She gets up “slowly and purposefully. * * * the" citations that I’ve made have been constant and continual.”

Thomas Coffman also observed Mrs. Stephens at her second employment. “ * * she seems to be slow rising, she watches herself the way she moves herself, and she seems to have * * * a stiffness of the neck and she just doesn’t move around the office like she should.” He watched her when she did not know it and “She seemed to walk slow, she is slow and cautious, she kinda seemed to guard herself.” Such movements are constant. She uses the office furniture for support.

Dr. James Denninghoff is a specialist in internal medicine. When he first saw Mrs. Stephens on December 24, 1963, she gave a history of the rear-end collision on the afternoon of December 23 and had pain in the neck on any motion of the head at that time. Upon examination “she had pain to where she couldn’t move her head in the directions I mentioned.” She had limitation primarily to the left. He had her take three ultrasound treatments and saw her next on December 28. She then seemed somewhat improved, “there was less soreness although there was some aching yet in the muscles * * *. At that time, because the symptoms were not very severe and because she did seem to be responding reasonably well, I recommended that she be put on some muscle relaxents and pain relievers and to see me if the symptoms should worsen as sometimes happens. Many times a person will seem to improve and then maybe a week or two or three or even four weeks later have a recurrence of symptoms sometimes even worse than the original symptoms.” Ten days later, January 8, 1964, she noticed that the neck was becoming more painful as she stayed up and she was advised to work only half days. On the 10th she was complaining of recurrent nausea after her neck tired. She was becoming “run down looking” and “it was obvious that she should be in the hospital and I put her there.” He placed her in the Boone County Hospital and gave cervical traction. “ * * * when it became apparent after her third day of hospitalization that she was not improving as well as I’d like her to, it became apparent that I would want a consultation and some help from Dr. McElroy and called him.” He next saw Mrs. Stephens in January, 1965, when Dr. McElroy “wanted me to evaluate her from an arthritis standpoint.” The tests “revealed one positive test only among several, indicating there might be an arthritic factor * * * involved in this problem, and at that point I advised her to see Dr. Gaunt.” Dr. Gaunt of the University of Missouri Medical Center ran tests including two Latex Agglutination Tests which Dr. Denninghoff described as 90 per cent accurate and being the test he ran that showed positive. “He felt that rheumatoid arthritis was not a factor in this.” Rheumatoid arthritis affects the joints including the spine and, according to Dr. Gaunt, would not be produced by Mrs. Stephens’s accident. Dr. Denninghoff also stated that Mrs. Stephens’s symptoms were consistent with the “whiplash” type of injury and said with reasonable medical certainty that her symptoms were the result of and consistent with being struck from the rear. In his January, 1965, examination, “she had a very loud cracking, popping noise in her shoulder, * * * you could actually feel a cracking and snapping. * * * she had some pain on straight leg raising,” a symptom consistent with ruptured intervertebral disc, “and on pulling up the shoulder.” Dr. Denninghoff, using his January, 1965, examination as a basis, connected her trial-time complaints to the injury he found and examined in December, 1963, and January, 1964. “The reason I would answer yes to that is because there is no history that I’ve obtained of any kind of pain or joint involvement, arthritis, limitation of motion, cracking of joints — no symptoms before the accident. At the time I first examined her after the accident, she had none of this cracking on lifting her arm or any of that part of it which subsequently developed, and it is only because she did turn up with a negative evaluation from an arthritic problem by Dr. Gaunt from an internal medical viewpoint where this was extremely carefully run down that there was no gouty arthritis or anything of that nature, but the conclusion that would seem logical to me would be that this was the result of the accident.”

Dr. Lester Wolcott, a specialist in physical medicine at the University of Missouri Medical Center, saw Mrs. Stephens in February, 1965, upon request for consultation from Dr. Warren Sights, Chief of Neurosurgery at the Center. “Dr. Sights’ examination, and borne out by my own, and noticeable on x-ray was a rather unusual slope or droop to the shoulders, and commonly we see what’s called a thoracic outlet syndrome, causing numbness and tingling in the hand which is intermittent as a result of this droop and nerve being compressed against the first rib at times, and he had felt on his examination that this was a possibility because of the postural relationship of the shoulders to the spine. I agreed and prescribed shoulder elevator strengthening exercises to hopefully do away with this particular postural condition. * * * She had also complained of the back pain with radiation into the right leg which he had ruled out to his satisfaction, and I did to mine, that this was not as a result of neurological difficulty, it is a primary condition.” In respect to her complaints of pain in the low back and right leg, he found tenderness over the areas of complaint by pressing with his hands and noting the patient’s response. He also found muscle spasm by palpation which was increased in those areas. Her low back pain followed the dermatomal pattern of the fifth lumbar vertebra sensory distribution. As far as he was concerned Mrs. Stephens was disabled; she has myositis or inflammation of her muscles, which is very often the result of trauma. He treated the myositis with moist heat, ultrasound, and gentle stretching. His referral was for treatment of the radiating pain in the right arm and hand, pain in the neck and low back, and radiation into the right leg. He last saw Mrs. Stephens on April 22, 1965, and she was no better.

Dr. William D. Gaunt is a specialist in internal medicine at the University of Missouri. He saw Mrs. Stephens February 8, 1965, upon referral by Dr. Denninghoff for tests for rheumatoid arthritis. He made a complete physical examination of the patient following a recital of her complaints dating back to December 23, 1963. “Examination of the joints revealed tenderness anteriorly at the shoulders. * * * There was slight tenderness over the right hip * * * the right hip showed some limitation of motion as compared to the left. * * * There was some tenderness at approximately the second cervical vertebra and along the right neck muscles, posteri-orly in the back * * * there was tenderness medial to both of the shoulder blades— that’s toward the spinal column * * *. There was tenderness to palpation feeling at about the fourth lumbar vertebra and to the right of that in the lower back. * * * The right lumbar paraspinal muscles were somewhat tighter than the left * * * muscles of the upper and lower arms were slightly tender to palpation. * * * The right anterior thigh * * * and the right calf were slightly tender to palpation too. * * * The x-rays of the cervical spine showed minimal narrowing of the C7, T1 inner space. * * * I was unable to find any definite evidence of rheumatoid arthritis at present.” Her complaints of pain in his findings of tenderness to pressure were consistent with traumatic injury. “Q: Were there any symptoms which caused you to believe that she might have disc trouble in the lower back? A: She had tenderness at her fourth lumbar area and to the right of it and then with this muscle spasm, this raised the possibility of this consideration in the overall thinking about her problem as one possibility to think about.”

Dr. Glenn McElroy first saw Mrs. Stephens January 11,1964, at the Boone County Hospital upon referral by Dr. Denninghoff. She was then being treated conservatively and being given cervical traction. “ * * * she gave me a history of being in a car accident * * * on December 23, 1963, at which time the car in which she was driving was hit from the rear.” He recommended that conservative treatment by cervical traction, heat, and drugs be continued. Her first complaints were referable to her neck, upper back and upper extremities. “ * * * she developed some back pain — some low back pain which at first wasn’t too significant.” Dr. McElroy also admitted Mrs. Stephens to the hospital on three other occasions as her condition worsened and in the course of those he was her main treating doctor. “I referred her back to Dr. Den-ninghoff to rule out any arthritic process which may be causing this type of thing.” His January 11, 1964, examination “revealed very little positive findings. This mainly was soreness and discomfort and tenderness of the neck and upper back * * * X-rays * * * revealed some straightening of the normal cervical curve, and I felt that was due to muscle spasms * * * and it can be produced by trauma.” His treatment varied through the course of hospitalizations. “It was all conservative in nature, but it varied from neck to lower back and at times both.” The treatment was unsuccessful and he has never been happy with what he has accomplished. “She still has some abnormal finding, and we are worse than we were when I first saw her.” In 1964 he injected cortisone into her shoulder to increase circulation and to try to get rid of soreness in muscles and tendons. She has tendon involvement because “There is tenderness, there is limitation — some limitation of motion pain of her shoulder, then also she has in her right shoulder, what I call a popping tendon or snapping tendon.” Upon his May 11, 1965, examination, her complaints were “the same, if not more than they were before.” She bent over very well “but with evidence of muscle spasm and with evidence of pain and discomfort— not only in her lower back but also in her right lower extremity.” She guarded and protected her head and neck and her range of motion is limited and painful. She complained of numbness in her arms and hands but these complaints did not follow a true dermatone pattern. On his last examination he found “some mild atrophy of her right thigh and calf. * * * This was a half inch difference in the circumference of her right thigh and a quarter inch atrophy of her right calf.” Straight leg test for stretching the sciatic nerve was positive, “we produced pain in her back and extremity.” There was a decrease in sensation in her right leg and ankle jerks were sluggish. He stated with reasonable medical certainty that in connection with this accident Mrs. Stephens “does have some permanent disability.” “ * * * the thing that puzzles me is her lower back because here she is showing more positive findings as we go along in her treatment, and it’s leading up to interspinal pathology with pressure on a nerve * * *. I’m thinking in terms of pressure on a nerve root * * * going to the right lower extremity, * * * we are getting positive findings * * * not only pain, but we got some atrophy, we got decrease sensation, we are getting a little sluggishness of an ankle jerk, * * * and it is highly possible that she is- — does have a disc involvement * * These findings indicate that she “could have” a ruptured intervertebral disc. Dr. McElroy spoke of a possibility of disc or low-back surgery if her condition continued to worsen. He recommended continuation of conservative treatment “to see what she is going to do.” “Q: Dr. McElroy, can you state with reasonable medical certainty whether these symptoms that she has — and her condition — are a result of the collision occurring on December 23, 1963? A: I can only take this lady’s history and my findings since then. She dates everything back to that time or after that time and that’s — that’s the only way I can say — taking that into consideration, I think it is tied in with this — with an accident.” Dr. Mc-Elroy estimated that disc surgery would cost about $850 for fees, hospital, and services. Dr. McElroy performed the myelo-gram on Mrs. Stephens and it showed her spinal canal to be within normal limits. His objective findings have been less than his patient’s subjective complaints. He has, however, seen her walk with a progressing limp and her objective findings are consistent with a limp. He attributes the limp to pain in her leg and he has seen also the atrophy of the leg, decreased sensation, and pain on leg-raising tests. Dr. McElroy described Mrs. Stephens’s permanent disability as soreness and stiffness in her neck and shoulder and some low-back problem. “Taking her history into consideration, the fact that she had nothing prior to this, I feel I am justified in saying that this is related to an accident. I feel she will have some permanent disability.” He first thought Mrs. Stephens had mild injuries which should respond to conservative treatment. “Q: Dr. McElroy, is it unusual in these type of rear-end collision for these type of injuries, such as to her back, to develop two or three weeks after the occurrence ? A : Pretty commonly they will come on at a later date. There’s usually an early phase in which you have muscle spasms— the neck will often come on earlier than a lower back problem, but they — some of them do come on later.” “I do not feel that Mrs. Stephens is malingering at all.”

Appellant bases her Point I on Kimmie v. Terminal R.R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, and Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644. In the first case plaintiff sought to recover for a malignant bone tumor alleged to have been suffered by a fall on defendant’s premises. The medical testimony was sufficient to show plaintiff’s condition but “ * * * The opinion of the doctors that it might, could, or would result from the fall is no more than an assurance that such a result was scientifically possible. * * * It was not substantial evidence that it did result from it and there was not here other ample evidence, ‘tending to exclude all other causes save the fall and to prove that the fall was the cause.’” 66 S.W.2d 1. c. 565 [4]. “Where there are other facts which tend to show an accident caused a certain condition, the assurance of an expert that it is scientifically possible is of some aid to the jury in determining what are reasonable inferences to be drawn from such facts.” 66 S.W.2d 1. c. 565 [9-11]. In the second case plaintiff sought to recover in an automobile collision case for a claimed aggravated preexisting heart condition, and his physician testified that the aggravated condition could not have been caused by the trauma but only by other cause. The plaintiff was denied recovery because his own medical testimony was against him and he, as a layman, would not be competent to say what caused a heart condition. “The burden was on the plaintiff to show the cause. Evidence that the condition might or could have been caused by either injury or disease without any substantial showing as to which of the possible causes did produce the condition, furnishes no basis from which a jury could determine the cause.” 59 S.W.2d 1. c. 646 [2, 3].

The testimony here of Drs. McElroy and Denninghoff considered the history of accident, Harp v. Illinois Cent. R. Co., Mo., 370 S.W.2d 387, 392 [6, 7], and their testimony, taken with plaintiff’s own testimony and that of her employers, is substantial evidence by which plaintiff’s trial-time condition reasonably could be found to be connected to the admitted rear-end collision and injuries of December 23, 1963. The evidence was substantial that Mrs. Stephens was a healthy, active young woman prior to the accident and is now a person with objective findings as well as subjective complaints of neck and back injuries with attendant radiating nerve pain and numbness, and with some degree of permanency. Rheumatoid arthritis was considered, tested for, and ruled out by Dr. Gaunt, and the shoulder-droop problem was fully developed by Dr. Wolcott and rejected in favor of myositis as a cause of her disability. Plaintiff’s own evidence of her pain, discomfort, and disability following the accident and her freedom from such conditions prior to the accident and similar evidence from her employers was substantial evidence of “other facts” from which a jury might find that her trial-time condition was caused by the accident. Ketcham v. Thomas, Mo., 283 S.W.2d 642, 649-650 [10]; Stevens v. Westport Laundry Co., Mo.App., 25 S.W.2d 491, 495 [1]; Perringer v. Lynn Food Co., Mo.App., 148 S.W.2d 601, 611 [21, 22]. See also Rogers v. Thompson, Mo., 308 S.W.2d 688, 694 [3], and Schroeder v. Western Union Telegraph Co., Mo.App., 129 S.W.2d 917, 923 [11], which distinguish this case and the supporting citations from Kimmie v. Terminal R.R. Ass’n, supra, and Adelsberger v. Sheehy, supra. The same distinctions would apply to Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131, where the evidence went no further than to show that plaintiff’s arthritis might or could have been aggravated by trauma, and Bertram v. Wunning, Mo.App., 385 S.W.2d 803, where the evidence stopped at testimony showing a hernia could have resulted from the accident.

Appellant charges error in permitting Dr. McElroy to testify to an estimate of additional hospital stay of two to three weeks at $25 per day, surgery fee of $400, and anesthetic fee of $50 for surgery “to correct a ruptured intervertebral disc when the doctor’s testimony (1) failed to show that the plaintiff was suffering from a ruptured intervertebral disc and (2) showed that such operation was not recommended by him and that he could not state with reasonable medical certainty that such would be required.” Appellant points to cross-examination testimony in which Dr. McElroy admitted that just because she has the symptoms consistent with ruptured in-tervertebral disc does not mean that she has such condition, and that other things could cause such symptoms; that he could not yet prove-nerve root pressure but the abnormal findings in plaintiff’s right leg were suggestive of some pressure; that although he was thinking in terms of low back or disc surgery he had not yet recommended surgery, and that he would wait awhile yet. These cautions in the doctor’s testimony do not, however, make the questioned testimony inadmissible. The testimony on cost of low-back surgery was admissible because it was related to correction of a condition which, in the least positive view of the doctor, was suggested to be or could be a condition from which plaintiff was suffering as a result of the accident. Dr. McElroy was commendably candid in admitting that he could not “definitely prove” a ruptured disc, but “We do not hold * * * that it is improper to ask an expert witness if something might, could, or would produce a certain result. An expert’s view of possibility or probability is often helpful and proper.” Kimmie v. Terminal R. R. Ass’n of St. Louis, supra, 66 S.W.2d 1. c. 569 [9]. The condition of low-back involvement suggestive of surgery and caused by the accident of December 23, 1963, is supported by previously detailed objective findings of Dr. Mc-Elroy and the other doctors, particularly Dr. Denninghoff, subjective complaints of plaintiff, and descriptive testimony from layman observers as to plaintiff’s caution and limp. Such evidence when viewed in entirety rather than in isolated bits removes this case from speculative situations such as causes from a burn when the only testimony admitted of a “possibility,” Hahn v. McDowell, Mo.App., 349 S.W.2d 479, 482 [1-3], and of tuberculosis from inhaling gasoline fumes where the doctor testified “if it is tuberculosis” length of life is “problematic,” Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328, 333 [7]. Dr. McElroy also testified that plaintiff had some permanent disability from her injuries and the collision which distinguishes her case from speculation on future consequences as proscribed in Mahany v. Kansas City Rys. Co., 286 Mo. 601, 228 S.W. 821, 825, and Clark v. Mississippi River & B. T. Ry., 324 Mo. 406, 23 S.W.2d 174, 179.

Finally, appellant says the verdict for $19,670 for injuries is excessive requiring reversal or remittitur. Plaintiff’s injuries already have been mentioned in detail. At 29 years of age she had a life expectancy of 38.61 years, and she has some permanent disability and her condition is worsening. Her special damages, exclusive of hospitalization and fees for surgery not yet performed, are in excess of $5,400, and her ability to work full days, to do housework, and to engage in sports has been reduced.

“There is no precise formula for gauging whether a verdict is excessive. Each case depends on its own particular facts. Consideration must be given the nature and extent of the injuries and losses, plaintiff’s age and * * * diminished earning capacity, if any, the changing economic factors and the amount * * * awarded and approved in cases similar or of fairly comparable injuries.” Goodman v. Missouri Pacific R. R. Co., Mo., 312 S.W.2d 42, 49 [8]. These criteria negative a finding of excessiveness in this case. Hopkins v. St. Louis Public Service Co. (1964), Mo.App., 382 S.W.2d 442, upheld a judgment of $15,-000 for injury in a rear-end collision to the neck and shoulder with neck and shoulder pain, headache and numbness in the left hand following the accident. Mrs. Hopkins had ten days’ hospitalization with traction under a diagnosis of cervical spine sprain, partial separation of the acromioclavicular joint, contusion of the left knee and lord-osis in the cervical spine due to spasm. She could not sit well and would need treatment in the future “which might * * * include an operation to remove the cartilage between the joint so as to relieve the pressure on the nerves.” 382 S.W.2d 1. c. 446. She had lost some time from work and was now working irregularly. She had special damages exceeding $1,800. Riggs v. Metcalf (1958), Mo., 315 S.W.2d 791, upheld a judgment of $20,000 for a 29-year-old woman for whiplash injury in a rear-end collision. Mrs. Riggs had five days of hospitalization and six weeks of traction. She quit work and was limited in her housework. She had not been discharged from doctor s care but felt she was improving. Her medical expenses were slightly over $1,000. Appelhans v. Goldman (1961), Mo., 349 S.W.2d 204, affirmed $20,000 for whiplash injury to the neck and spine of a 38-year-old nurse with life expectancy of 30.91 years. She was hospitalized for ten days, had limitation of head and neck movement, wore a collar and will not improve. She may be more seriously impaired than Mrs. Stephens but she has fewer years’ expectancy and less loss of earning power. McCaffery v. St. Louis Public Service Co. (1952), 363 Mo. 545, 252 S.W.2d 361, reduced a $20,000 verdict to $16,000 and affirmed at that amount for cervical neck injury and partial dislocation of the collarbone suffered by a 51-year-old woman. She used traction three times a day for some time, lost about six weeks’ work and $800, was never hospitalized, and had surgery recommended to help her collarbone problem. See also Kiger v. Terminal R. R. Ass’n of St. Louis (1958), Mo., 311 S.W.2d 5, affirming, after remittitur, a judgment of $20,000 for permanent injuries to the cervical and lumbar area of the back after finding the evidence insufficient on the presence of a ruptured intervertebral disc.

Appellant cites several cases in which the injuries and circumstances are not comparable to Mrs. Stephens’s condition: Salzwedel v. Vassil (1961), Mo.App., 351 S.W.2d 829, affirmed $6,000 for neck injuries but there was no medical or hospital expense, nor was plaintiff ever hospitalized. Ficken v. Hopkins (1965), Mo., 389 S.W.2d 193, affirmed a $5,000 verdict, but the injury was bruising and shock to a 62-year-old woman and there was no evidence of permanence or of special damage. Statler v. St. Louis Arena Corp., Mo., 388 S.W.2d 833, and Bowyer v. Te-Co, Inc., Mo., 310 S.W.2d 892, involved ankle fractures; Brown v. Kroger Co., Mo.App., 358 S.W.2d 429, involved a cut vein and no wage loss; and there was no permanent injury to the 20-year-old plaintiff in Gooch v. Lake, Mo., 327 S.W.2d 132.

Judgment affirmed.

HOUSER, and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


author: FINCH, Judge.

text:
    STATE of Missouri, at the information of Norman H. ANDERSON, Attorney General, at the Relation of C. C. Tuttle, d/h/a Tuttle’s Utility Gas Service, Lawrence Absher, Aaron Medlock, and George R. King, Relators, v. OZARK TRANSMISSION DISTRICT, INCORPORATED, Respondent.
    No. 51976.
    Supreme Court of Missouri, En Banc.
    Dec. 12, 1966.

      Lilley & Cowan, Louis W. Cowan, Springfield, for relators.
    Morris E. Osburn, Robert L. Hawkins, Jr., Graham & Hawkins, Jefferson City, for respondent.
   FINCH, Judge.

This is an original quo warranto proceeding on information by the Attorney General in which relators question the right and authority of respondent, Ozark Transmission District, Incorporated, to construct, own and operate an intrastate natural gas transmission line. The information filed herein asks that respondent be excluded from all corporate rights, privileges and franchises, and that it be adjudged dissolved.

A return was filed by respondent and thereafter a written stipulation was filed in this court, signed on behalf of all the parties, stipulating, for purposes of this proceeding, as to the facts upon which the case was to be submitted. Briefly stated, those facts are recited in the succeeding paragraphs.

Respondent was incorporated March 20, 1964, as a not for profit corporation under the provisions of Chapter 355 (all references are to RSMo 1959 and V.A.M.S.). The three individual incorporators were the mayor of Mountain View, an alderman at Cabool, and a former alderman at Mansfield.

The purposes section of the Articles of Incorporation authorized the corporation to construct, purchase or otherwise acquire a gas transmission system, to own and operate the same, and to supply, distribute and/or sell gas to certain municipalities and others.

With reference to the proposed gas transmission system, the Articles state that the corporation has “as the ultimate civic object and purpose” the eventual vesting by gift of all assets of the corporation existing at the time of such vesting in certain municipalities named in the Articles, together with any other municipalities subsequently added by amendment of the Articles of Incorporation.

Respondent made application to the Public Service Commission of Missouri for a Certificate of Convenience and Necessity to build, operate and maintain a1 natural gas transmission line originating at a point near Springfield, Missouri, and extending to Thayer. The proposed line, in general, parallels U. S. Highway 60 to Willow Springs and thence proceeds along U. S. Highway 63 to Thayer, with laterals to Marshfield, Houston and Mountain View. It is to be financed entirely from a proposed bond issue to be sold to the public. The Public Service Commission found that respondent herein “proposes to hold itself out as a public utility offering natural gas service to all members of the public in the described area,” and issued a conditional Certificate of Convenience and Necessity authorizing respondent to supply natural gas at wholesale to certain named municipalities and at retail to the public in the unincorporated area described. The certificate was contingent upon respondent securing an allocation of natural gas from Cities Service Gas Company pipeline near Springfield, Missouri, and upon respondent receiving a ruling from the Internal Revenue Service of the Treasury Department that any income earned by respondent will be free from the obligation to pay federal income tax and that interest paid on bonds to finance the construction of the project will be tax free to the recipients thereof insofar as federal income taxes are concerned. Respondent now has an application pending before the Federal Power Commission for an allocation of natural gas from the pipeline of Cities Service Gas Company and it has received the required ruling from the Internal Revenue Service.

The Articles provided that respondent corporation should have no members, that no dividends would be paid, and that no part of its income should be distributed to directors or officers except that reasonable compensation for services actually rendered could be paid. A self perpetuating board of directors was provided. This seems to bring the corporation within the definition of a “not for profit corporation” as contained in § 355.015(3):

“(3) ‘Not for profit corporation’ means a corporation no part of the income or property of which is distributable to its members, directors or officers; provided, however, that the payment of reasonable compensation for services rendered and the making of distributions not representing pecuniary profits or gains upon dissolution or final liquidation, as permitted by this chapter, shall not be deemed a distribution of income or property.”

The ultimate issue for determination herein is whether the purposes for which respondent was organized fall within the provisions of § 355.025, which details purposes for which not for profit corporations may be organized under Chapter 355. Respondent relies on the “charitable,” “civic” and “social welfare” purposes authorized by § 355.025.

In determining whether the corporate purpose of respondent falls within the “charitable” authorization contained in § 355.025, we must ascertain, as best we can, the legislative intent in connection with that chapter. This involves a consideration of the legislative history of the Act, as well as all definitions of “charity” or “charitable” in previously decided cases of this court if the legislative intent is not clear.

The source of our Not For Profit Corporation Act was the Illinois statute found in Illinois Revised Statutes, Chapter 32, and our § 355.025 was taken from § 163a3 of the Illinois Act.

It will be observed that much of our § 355.025 corresponds word for word with § 163a3 of the Illinois statute. The Missouri section added a few purposes such as “cultural,” “social welfare,” “health,” “cemetery,” “wild life conservation,” “homeowner and community improvement association,” and “recreational club or association,” but it deleted provisions contained in the Illinois section which permitted not for profit corporations to have as purposes “electrification on a co-operative basis” and “ownership of residential property on a co-operative basis.”

What is the significance of the deletion of these phrases by the Missouri general assembly when it took § 163a3 of Chapter 32 of the Illinois Statutes and enacted it as our § 355.025 ? If, as respondent asserts, the term “charitable” as used therein was broad enough to include the establishment and operation of a utility transmission system to supply such things as natural gas or electricity to a municipality, then we must conclude that the phrase relative to electrification was deleted simply because it was surplusage. We cannot so find. Rather, we conclude that the general assembly had some affirmative purpose in making the change and that the phrase was deleted because it did not intend to authorize the providing of electrical services on a co-operative basis by a not for profit corporation. This necessarily means that the legislature did not intend that the term “charitable” as used in § 355.025 should be so broad as to authorize the formation under that term of a not for profit corporation to own and operate an electric utility system or a natural gas transmission line, whether it be on a cooperative basis or otherwise.

It is of interest that the Illinois legislature apparently also considered that the term “charitable” as used in their act was not as broad and all-embracing as respondent would construe the term. It not only amended the act to specifically include electrification authorization, but it also amended the act in 1953 to provide as an authorized purpose “telephone service on a mutual or co-operative basis,” and in 1961 it added as a further purpose “ownership and operation of water supply facilities for drinking and general domestic use on a mutual or co-operative basis.” Respondent’s brief suggests that these amendments were simply to remove any doubt respecting the authorization of such purposes, but we conclude that they were intended as authorizations which did not previously exist. Necessarily this means that the purposes authorized in the Illinois statute such as “charitable” and “civic” did not include the furnishing of utility services.

Respondent cites certain Missouri cases as indicating that this court has adopted a broad concept of “charitable” purpose or use and that if the purpose “serves the public welfare” or “is for the public convenience” or “tends to promote the well-doing and well-being of social man,” its purpose is “charitable.” It is true that each of these cases cites or quotes from 5 R.C.L. 291, 293, 294, and 323, or other cases which contain broad definitions of the term “charity” or “charitable” and contain some of the phrases used by respondent. However, an examination of the facts in these cases indicate that they dealt with such questions as taxability of the Evangeline Home of the Salvation Army or of low-cost public housing erected in a slum clearance project by the St. Louis Housing Authority, or with trusts of funds for school purposes or Red Cross activities. None of the cases involved situations at all similar to that wherein respondent seeks, on the theory of charitable activity, to own and operate a certificated natural gas transmission line. Language used in those cases does not apply to the kind of activity proposed by respondent except as dictum and in any event it cannot be a basis for construing the language in the statute differently than in accordance with what we have found to be the legislative purpose.

Respondent also urges that its purpose as expressed in its Articles of Incorporation also falls within^ the “civic” and “social welfare” authorizations contained in § 355.025. Definitions of those terms are set out and a few cases from other jurisdictions are cited and discussed. What we have said about the legislative intent in discussing the term “charitable” is applicable here. If, for the reasons we have assigned, the legislature did not intend to include such purposes under the “charitable” authorization, it seems apparent that it likewise did not intend to do so under the terms “civic” and “social welfare.” As heretofore noted, the Illinois legislature did not consider “civic” to include activity of this type.

We are not called upon and do not undertake herein to delineate an overall definition of the “charitable,” “civic” and “social welfare” purposes authorized for not for profit corporations under Chapter 355. We leave that for determination in particular fact situations as they arise and we hold herein only that the purpose of owning and operating the natural gas transmission system set out in the respondent’s Articles of Incorporation is not an authorized purpose.

Respondent refers to Chapter 352, relating to religious and charitable associations which are incorporated by pro forma decree of the circuit court, and asserts that it is clear from Chapter 355 that the legislature intended to make provision for incorporation of a much broader category of enterprises than had been possible under Chapter 352. One apparent purpose of Chapter 355 is to provide a simplified method of incorporation. It also is true that Chapter 355 covers numerous corporations which could not have been incorporated by pro forma decree under Chapter 352. However, we find nothing to indicate an intention that the term “charitable” as used in § 355.025 is to have the broad concept contended for by respondent. Section 355.500 indicates that Chapter 352 remains unchanged. Corporations organized thereunder, as well as corporations organized under the laws relating to profit corporations, may qualify under Chapter 355 if they accept the provisions of the chapter and are in fact not for profit corporations organized for a purpose permissible under Chapter 355. These provisions do not bring respondent corporation within the authorized purposes of Chapter 355.

Respondent is found guilty of proposing to operate for purposes not authorized under Chapter 355, as charged in the information of the Attorney General. It is ordered that respondent be dissolved as a not for profit corporation and that it be ousted of its corporate charter and that the State of Missouri, at the information of the Attorney General, at the relation of C. C. Tuttle, d/b/a Tuttle’s Utility Gas Service, Lawrence Absher, Aaron Medlock, and George R. King, have and recover its costs herein paid and expended.

All concur.

      . The Article which covers details of distribution of the assets to the municipalities is contained in Article Eighth, as follows:
      “Eighth: The corporation has boon formed, in part, for the purpose of constructing, acquiring, enlarging or extending a gas transmission system and proposes to issue bonds in order to obtain moneys for such purposes. After the said bonds are fully paid, this corporation shall tender to the Municipalities all of the properties and affairs of this corporation. Upon dissolution of this corporation, title and possession of all of its assets shall, after payment of all of its liabilities, vest in the Municipalities.”

      . Section 355.025 is as follows:
      “Not for profit corporations may be organized under this chapter for any one or more of the following or similar purposes: Charitable; benevolent; eleemosynary; educational; civic; patriotic; political; religious; cultural; social welfare; health ; cemetery; social; literary; athletic ; scientific; research; agricultural; horticultural; soil, crop, livestock and poultry improvement; professional, commercial, industrial, or trade association; wild life conservation; homeowner and community improvement association ; and recreational club or association; or for the purpose of executing any trust, or administering any community chest, fund or foundation, to further objects which are within the purview of this section. No group, association or organization created for or engaged in business or activity for profit, or on the cooperative plan, provision for the incorporation of which is made by any of the incorporation laws of this state, shall be organized or operate as a corporation under this chapter.

      . Our Not For Profit Corporation Act was adopted in 1953. At that time § 163a3 of the Illinois statute read as follows:
      “Not for profit corporations may be organized under this Act for any one or more of the following or similar purposes: charitable; benevolent; eleemosynary; educational; civic; patriotic; political; religious ; social; literary; athletic; scientific ; research; agricultural; horticultural ; soil, crop, livestock and poultry improvement; professional, commercial, industrial or trade association; electrification on a co-operative basis; and ownership of residential property on a co-operative basis.”
      The 1953 Illinois legislature inserted the words “telephone service on a mutual or co-operative basis” after the words “electrification on a co-operative basis,” but this change perhaps occurred after the proposed Missouri Act was drafted.

      . Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826; Bader Realty and Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489; Catron v. Scarritt Collegiate Institute, 264 Mo. 713, 175 S.W. 571; Robinson v. Crutcher, 277 Mo. 1, 209 S.W. 104, and In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120, 51 A.L.R. 877.