author: HUNTER, Presiding Judge.

text:
    William L. EASTON, Plaintiff-Appellant, v. Luvena Mable EASTON, Defendant-Respondent.
    No. 23537.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.

      Charles S. Stratton, Clinton, for appellant.
    Harvey Burrus, Independence, for respondent.
   HUNTER, Presiding Judge.

This is an appeal by plaintiff-appellant, William L. Easton from an adverse judgment on the cross petition of his wife, Lu-vena Mable Easton, defendant-respondent, for separate maintenance.

On October 20, 1960, plaintiff filed a petition for divorce. On November 7, 1960, defendant filed her answer. On June 5, 1961, the day the cause was set for trial, defendant without objection from plaintiff, filed her cross petition for separate maintenance, and plaintiff immediately filed his answer to the cross petition. The trial was held on June 5, 1961, and on June 12, 1961, the trial court found the issues for defendant on plaintiff’s petition and for defendant on her cross petition for separate maintenance, awarding defendant $225.00 per month and $150.00 attorney fee.

On this appeal plaintiff presents two contentions of error: (1) That the trial court erred in granting defendant judgment on her cross-claim for the reason that there was not sufficient evidence to entitle defendant to a divorce and that by her own testimony she was not an innocent and injured party; and (2) that the cross-claim states no action for separate maintenance because it is devoid of the statutory allegation that plaintiff has failed and refused to support defendant and the record is devoid of any evidence that plaintiff failed and refused to support defendant. We will review these contentions in the order presented.

The right of a wife to sue her husband for separate maintenance has been recognized as originally coming within the inherent jurisdiction of a court of equity. However, Missouri as have many states, has by statute authorized the action and prescribed its elements. Because of its equitable origin and nature equitable considerations and procedures are applied in a suit for separate maintenance. Hoynes v. Hoynes, Mo.App., 218 S.W.2d 823; Oakes v. Oakes, Mo.App., 303 S.W.2d 940. On appeal our duty is to review the case upon both the law and the evidence as in suits of an equitable nature. The judgment is not to be set aside unless clearly erroneous, and due regard is given to the opportunity of the-trial court to judge the credibility of the witnesses. Section 510.310 RSMo 1959, V.A.M.S.

Our separate maintenance statute, Section 452.130 RSMo 1959, V.A.M.S. provides: “When the husband, without good cause, shall abandon his wife, and refuse or neglect to maintain and provide for her, the circuit court, on her petition for that purpose, shall order and adjudge such support and maintenance to be provided and paid by the husband for the wife and her children, or any of them, by that marriage, out of his property, and for such time as the nature of the case and the circumstances of the parties shall require * *

Plaintiff cites such cases as Oakes v. Oakes, supra, and Noll v. Noll, Mo.App., 277 S.W.2d 853, for the general statement that in order to successfully maintain a decree of separate maintenance the wife must prove facts which would entitle her to a divorce if that were the relief sought, and that one of these requirements is that she must be an innocent party.

Defendant’s evidence was that she and Bill (plaintiff) were married April 13, 1942. September 4, 1943, a daughter was born of the marriage. Defendant and her husband got along well in their marriage until about the time her husband’s employment changed from Kansas City to Clinton, Missouri, in 1959. She remained at their Independence, Mo. house with the daughter. He came home on week ends. This lasted over a year. On February 14, 1960, she and the daughter moved to Clinton to a home Bill obtained there. About two or three months after Bill first went to Clinton He became friendly with a young lady named Nora-. Bill would bring his laundry home on Friday nights with lipstick all over his shirt collars. When she asked him about it Bill denied he “had been around anybody else”. She learned he had been seeing Nora. The lipstick-on-the-shirt-collar incidents continued steadily for about a year and a half. She asked him not to see Nora anymore and he said, “I’m not seeing anybody.” On two or three occasions such as this he struck her. Once he hit her with his fist, giving her a black eye. On another occasion he hit her on her arms and legs with some wire coat hangers.

■ In the latter part of May, 1960, Bill came home after an army reserve meeting with lipstick’ and make up on his clothes. She asked him who had put it on and where he had been. He wouldn’t talk and she became angry and hit him on his right arm several times with her purse. (He said it was with her shoe.) Bill told her he was through and was not going to live with her any longer. He moved all of his things from the house and took them to his parents’ home. Thereafter they have not lived together as man and wife. She and Bill'had been given a notice to vacate their Clinton home on July 1st, so about that time she moved back to Independence to the house she and Bill owned and previously had occupied. Bill helped her move. He has visited her and their daughter at the Independence address usually every Monday night. On these occasions she asked him to forget about Nora and to reestablish his home with them someplace. She is still desirous of doing that but he refuses.

On October 6, 1960, she and her mother visited Clinton and went to the apartment where Bill and his friend, Mr. Johnston lived. There they saw Nora in the apartment washing dishes. Numerous dresses and other feminine garments were visible in the apartment. Nora left before they could speak to her. Bill then told her he had gone to see an attorney. On October 20, 1960, she was served with his petition for divorce.

Bill testified that commencing in 1946 his wife accused him of being out with other women and of excessive drinking and called him names. He asserted that upon some occasions she threw dishes and ash trays at him and threatened to stick him with a knife or scissors. When asked about the lipstick incidents he stated, “She would ask if I had been out with another woman, and I told her no, that I had stopped at a tavern or something like that and had a drink and possibly danced with someone, but as far as being out with another woman, no. Q. What she first objected to was the lipstick on your collar, on your clothing? A. Right. Q. And that occurred about every time she cursed you, that question of lipstick was the thing that brought it on ? A. That is right.” He conceded that upon occasion he did have lipstick on his clothes, again explaining “I might stop on the way home from work, or something like that, or from reserve meeting with a bunch of fellows, and have a drink, possibly I danced a dance or something like that with someone there.”

As to his relationship with Nora he was asked, “Q. How many times would you say you have been out with her? A. Oh, five or six times in two years.” He said Nora was the girl friend of his close friend Johnston. He acknowledged she came to the apartment he and Johnston shared after his separation from his wife, and did laundry and dishes and housework for the two of them without charge. He denied Nora was anything but a friend.

While the above is not a complete résumé of the evidence it is sufficient to illustrate the lack of merit in plaintiff’s first contention of error. There was sufficient evidence, if believed, to entitle defendant to a divorce. Plaintiff’s conduct of frequently coming in late in the evening with liquor on his breath and lipstick on his clothes with the statement he innocently got it from a stop at a bar where he drank and danced with unnamed women taxes credulity. His response of striking and beating his wife upon her questioning him about it was unjustified. The evidence concerning his relationship with Nora viewed in the light of his other conduct is subject to the inference that he was not faithful to his marital vows.

Nor is there merit in plaintiff’s statement that defendant by her own testimony was not an innocent and injured party. Complete innocence is not a prerequisite to relief. The degree of innocence a party must have in a contested action for divorce or separate maintenance in order to remain eligible to obtain the divorce or separate maintenance is not such as to require that his or her conduct toward the spouse on all occasions be letter perfect and above all reproach. The accepted general rule is that the conduct of one party will not prevent him from being adjudged an innocent party unless his conduct was such as to entitle the other party, prima facie, to a divorce. Harwell v. Harwell, Mo.App., 355 S.W.2d 137; Stevens v. Stevens, Mo.App., 158 S.W.2d 238; Culp v. Culp, Mo.App., 164 S.W.2d 623. Defendant denied many of plaintiff’s accusations including any threat of sticking him with a knife or scissors. The other incidents she explained were in the main brought on by his own misconduct. It would serve no useful purpose to review each in detail. Suffice it to say that her testimony, if accepted as credible, did show her to be the innocent and injured party.

We reach plaintiff’s second contention which presents a more difficult question. Our statute, previously quoted, requires a wife seeking a judgment of separate maintenance both to plead and prove that (1) the husband, without good cause, abandoned his wife, and (2) refused or neglected- to maintain and provide for her. If. either element, abandonment or failure to properly support is absent the wife is not entitled to recover. Genazzi v. Genazzi, Mo.App., 343 S.W.2d 686; Woodman v. Woodman, Mo. App., 281 S.W.2d 555(1); Knese v. Knese, Mo.App., 217 S.W.2d 394(1).

As stated in Genazzi v. Genazzi, Mo.App., 343 S.W.2d 686, “The element of abandonment may be shown to be actual, that is, where the husband (without her consent) leaves his wife and remains away from her without just cause with the intent to discontinue the marital relation, or he may abandon his wife by treating her in such a way as to justify her in refusing to live with him as his wife. * * * Failure or refusal to support is shown by proof that the husband has failed to suitably provide for his wife, taking into consideration the manner in which she was accustomed to live, the wife’s necessities, the husband’s needs and his ability to pay. Bingham v. Bingham, 325 Mo. 596, 29 S.W.2d 99; Reeve v. Reeve, supra [Mo.App., 160 S.W.2d 804]; Stauffer v. Stauffer, Mo.App., 313 S.W.2d 597. And even where the husband, after abandonment, has been contributing to his wife’s support, the court may inquire into the sufficiency of such contribution. Hoynes v. Hoynes, Mo.App., 218 S.W.2d 823.”

In her cross petition for separate maintenance defendant alleged that “plaintiff has absconded himself from her without ' reasonable cause since said marriage for more than one year prior to the filing of this cross petition.” While no model, this is a sufficient allegation that her husband without good cause abandoned her. The words “without reasonable cause” have been ruled to be a legal conclusion. However, defendant has further pleaded facts which, if true, demonstrate that the abandonment was without reasonable cause. See, Dietrich v. Dietrich, Mo.App., 209 S.W.2d 540(3).

Both plaintiff and defendant testified that plaintiff left the defendant with the continuing intent never to return and live again with her as man and wife and has remained away from her over one year. The effect of the finding of the trial judge is that plaintiff did not have good cause to leave her, and upon our own review of the record we agree with the trial judge on this question.

We now reach plaintiff's final contention which we find to be meritorious. In her cross petition for separate maintenance defendant does not anywhere allege that the plaintiff refused or neglected to maintain and provide for her. The closest she comes to such an allegation is her statement “that she is wholly without means to support herself * * This statement, standing alone and unexplained, in a cross petition filed by her over four months after she had been granted and was being paid an ample award of temporary support by the trial court, is not a substantial compliance with the statutory requirement that she must allege her husband refused or neglected to maintain and provide for her.

Although defendant has not suggested or requested it we have considered whether this missing necessary allegation can now be supplied by considering the cross petition to be amended to conform to the proof. There is no contention that plaintiff failed to support his wife when they were living together. The contention tacitly is that he did not provide necessary support to her after they ceased living together. The payment by plaintiff, commencing over seven months after he left her, of the temporary allowance for her support as ordered by the court is not a voluntary payment and does not resolve the question of whether plaintiff refused or neglected to maintain and provide for his wife after he abandoned her and before he commenced his payments required by the court’s order. Unfortunately, for the defendant, the transcript is barren of any testimony, evidence or proof, concerning whether plaintiff refused or neglected to maintain and provide for her after their break up about June 1, 1960, and until January 30, 1961, when defendant obtained from the court the temporary allowance of $210.00 per month which the briefs indicate has been paid to the date of the judgment herein. Hence, we must and do conclude and rule that defendant has neither pleaded nor proved that her husband refused or neglected to maintain and provide for her as required by the statute.

In the interest of justice it is necessary to reverse the judgment and remand the cause for a new trial on defendant’s cross petition for separate maintenance. This will give defendant the opportunity to amend her cross petition to comply with the statutory requirement that it contain her allegation that her husband refused or neglected to maintain and provide for her. It will also afford opportunity for her to present her evidence on this question and give the plaintiff an opportunity to present his evidence on it.

Since plaintiff on this appeal has not challenged that part of the judgment finding the issues for defendant on his petition for divorce he is deemed to have abandoned any such challenge and may not relitigate his petition for divorce.

The judgment is reversed and the cause is remanded for a new trial on defendant’s cross petition. It is so ordered.

All concur.


source: Caselaw Access Project

author: McDowell, judge.

license: Public Domain

text:
    M. F. A. MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. James ALEXANDER, Dale Keltner, Barbara Jean Keltner, Evan Dale Keltner, William Blevins, Joan Blevins, and Phyllis Blevins, Defendants-Respondents. Arch M. SKELTON, Guardian Ad Litem of James Mack Alexander, Defendant-Appellant, v. M. F. A. MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, and Dale Keltner, Barbara Jean Keltner, Evan Dale Keltner, William Blevins, Joan Blevins and Phyllis Blevins, Defendants-Respondents.
    Nos. 8100 and 8102.
    Springfield Court of Appeals. Missouri.
    Sept. 20, 1962.

      Farrington & Curtis, E. C. Curtis, Jack S. Curtis, Springfield, for M. F. A. Mutual Insurance Company, appellant in No. 8100 and respondent in No. 8102.
    Walker, Daniel, Clampett, Rittershouse & Ellis, B. H. Clampett, William A. R. Dalton, Springfield, for respondents Kelt-ners & Blevins, respondents in Cases No. 8100 and 8102.
    Arch M. Skelton, Springfield, Guardian Ad Litem of James Mack Alexander, respondent in Case No. 8100 and appellant in No. 8102.
   McDowell, judge.

These consolidated appeals are from separate judgments rendered by the trial court of Greene County, Missouri, in a declaratory judgment action brought by plaintiff, M. F. A. -Mutual Insurance Company, against the defendants.

In appeal No. 8100, M. F. A. Mutual Insurance Company appeals from declaratory judgment entered against it declaring that it is liable under its automobile insurance policy issued to Willford A. Hill, named insured, decreeing that minor defendant, James Alexander, is an insured within the meaning of the policy and that plaintiff is obligated to defend said James Alexander in cases filed against him by the other defendants herein growing out of an automobile collision and that plaintiff is obligated to pay any judgments rendered against James Alexander in these cases up to the policy limit and allowing a fee of $350.00 for services rendered by Arch M. Skelton, guardian ad litem of Alexander, appointed by the court, to be taxed as costs against plaintiff and from the court’s action in denying plaintiff’s motion to retax costs.

Appeal No. 8102 is by Arch M. Skelton, guardian ad litem of defendant, James Alexander, from the judgment of the court overruling a motion to adjust the fees allowed said guardian ad litem.

Plaintiff’s amended petition, filed February 22, 1961, naming as defendants, James Alexander, Dale Keltner, Barbara Jean Keltner, Evan Dale Keltner, William Blevins, Joan Blevins, and Phyllis Blevins, states, inter alia, that on or about September 28, 1960, plaintiff issued to one, Will-ford A. Hill, its policy of liability insurance, No. 1-202402, a copy of which is attached to the petition as exhibit (A) and made a part thereof, and that there now exists an actual controversy between plaintiff and the defendants involving the rights and liabilities of said parties under said contract of insurance, which controversies may be determined in this action without other suits.

That by the provisions of said policy of insurance plaintiff agreed, under certain conditions, to pay upon behalf of the insured all sums up to a certain limit which said insured might become legally obligated to pay as damages because of bodily injury and property damage sustained by any person caused by accident arising out of the ownership, maintenance or use of a certain Studebaker automobile owned by Willford A. Hill and described in the policy and that the word “insured” was defined in said policy as follows:

“The unqualified word ‘insured’ includes the names insured, and if an individual, his spouse, and:
“With respect to the owned automobile or a substitute automobile, any person or organization using it or legally responsible for its use, provided the actual use of the automobile is by the named insured or spouse, or with permission of either.”

That on or about October 27, 1960, Will-ford A. Hill gave permission to his son, Willford H. Hill, to drive said Studebaker automobile from the Hill residence to Homer Williams Service Station; that said Willford H. Hill drove the automobile to the service station and then permitted defendant, James Alexander, to drive said automobile from said service station to a point on U. S. Highway 66 By-Pass; that Alexander drove to a point on U. S. Highway 160 a distance of several miles from U. S. Highway 66 By-Pass; that at said point the automobile was involved in a collision with an automobile driven by defendant, Barbara Jean Keltner, owned, by defendant Dale Keltner; that defendants Evan Dale Keltner, Joan Blevins and Phyllis Blevins were passengers in said automobile; that the automobile was damaged and the occupants of said car received personal injuries; that these defendants have made claim against defendant, James Alexander, for damages arising out of the aforesaid collision.

That there is now a controversy between plaintiff and defendants with respect to the above mentioned claims; that plaintiff contends that James Alexander was not operating said Studebaker automobile with the permission of Willford A. Hill or his spouse at the time of the collision; that James Alexander is not an insured under plaintiff’s policy of insurance and .plaintiff is not obligated to defend him in any claim or action brought against him by any of the defendants for damages resulting from the collision and that plaintiff would not be liable under its policy of insurance to pay any judgment which might be entered in any action or actions brought against defendant, James Alexander, by defendants or either of them.

That James Alexander contends he is afforded coverage under said policy of insurance for any claim which may be made against him by the other defendants for damages arising out of said collision and that plaintiff under its policy of insurance is obligated to pay any judgment which might be entered against him on any action.

That said defendants contend that James Alexander is afforded coverage under said policy for claim made against him by them or either of them arising out of said collision.

The petition prays that the court adjudicate and determine the rights, liabilities, duties and Iegal’relations of the parties under the aforesaid policy of insurance and that it adjudge, determine and decree that at the time of the collision referred to defendant, James Alexander, was not operating the Studebaker automobile with the permission of Willford A. Hill or his spouse; that plaintiff is not obligated to defend any suit brought by any of the defendants against James Alexander for damages arising out of said collision and would not be liable for thé payment of any judgment or judgments that might be entered in any such suit.

The separate answer of defendants, Dale Keltner, Barbara Jean Keltner, Evan Dale Keltner, William. Blevins, Joan Blevins arid Phyllis Blevins admits that there is an actual controversy existing between plaintiff and the defendants as to whether (a) plaintiff insured James Alexander under the insurance policy and (b) whether plaintiff is obligated to defend James Alexander thereunder. It avers that there are other actions pending in the Circuit Court of Greene County which were pending at the time the instant action was filed in which the coverage question herein raised can be determined.

The separate answer of defendant, James Alexander, avers that he is afforded coverage under said insurance policy for any claim which may be made against him and that plaintiff is obligated to defend him in such action or claim under the policy of insurance to pay any judgment which might .be entered against him in any such action.

He pleads that Willford A. Hill or his spouse, the parents of Willford H. Hill, prior to the 27th day of October, 1960, permitted and extended to their son almost complete control and virtually a blanket authority to use, operate, possess and otherwise treat as his own, the Studebaker automobile in question; that the said Willford H. Hill used and operated this automobile on numerous occasions, including October 27, 1960, without obtaining and without having to obtain specific permission from Willford A. Hill or h'is spouse; that people in the community thought the car actually belonged to the son and that because of such use, James Alexander was an insured under the policy.

Two alleged errors are assigned as grounds for reversal. First, that the court erred in holding that James Alexander is an “insured” within the meaning of the policy of insurance issued by plaintiff, and, secondly, the trial court’s action in allowing $350.00 to the guardian ad litem of defendant, James Alexander, because said services were legal services.

The evidence offered in support of these alleged errors is as follows: The minor defendant, James Alexander, was involved in an automobile accident while driving a 1952 Studebaker car, owned by Willford A. Hill, which had been loaned to defendant by Willford H. Hill, a minor son of Will-ford A. Hill. The automobile was insured by the plaintiff, M. F. A. Mutual Insurance Company, and the sole legal question presented is whether James Alexander is an insured within the meaning of this policy while driving the car by permission of the owner’s son. The evidence overwhelmingly supports the finding of the trial court that the title to the Studebaker automobile at the time of the accident was in Willford A. Hill; that his son had no interest in said car. It was bought for the use of Willford A. Hill’s wife and son, the father having a second car for his use.

The policy of insurance, No. 1-202402, was admitted in evidence. Under its terms plaintiff agreed under certain conditions to pay on behalf of the insured all sums 'within the limits of the policy which the insured might become legally obligated to pay as damages because of bodily injuries or property damages sustained by any person caused by accident and arising out of the ownership, maintenance or use of the 1952 Studebaker automobile, described in said policy.

The term “insured” is defined in the policy as follows:

“The unqualified word ‘insured’ includes the names insured, and if an individual, his spouse, and:
“(a) With respect to the owned automobile or a substitute automobile, any person or organization using it or legally responsible for its use, provided the actual use of the automobile is by the named insured or spouse, or with permission of either;”

Willford H. Hill, son of Willford A. and Nora Hill, was 18 years of age at the time of the accident and was shown on plaintiff’s policy as an underage driver. At the time of the accident, the Hill family lived at Bois D’Arc, Route 1, a little over eight miles west of Springfield, and the father was employed at the Plant Food Division of the M. F. A. in the city of Springfield. They had lived at that location for about two years.

With specific reference to the use of the Studebaker, Mr. Hill testified that his son drove it only after obtaining specific permission on each occasion; that he was strict in granting such permission and always limited its use to a particular place; that there was only one key to the car, which he or Mrs. Hill kept and the soil obtained from them when he got the car and gave it back on his return. This testimony was verified by Mrs. Hill and by the son. Willford H. Hill testified:

“Q. Did you have the right to drive the car just any time you wanted to? A. No, sir.
“Q. What did you have to do whenever you wanted to use the car? A. I either had to ask Mom or Dad.
“Q. Did you have to get permission each and every time you used it? A. Yes, sir.
“Q. Did you have to tell them where you were going? A. Yes, sir.
“Q. Did you ever take that car from your home, there, and drive it without specific permission from one or the other of your parents? A. No, sir.”

The witness testified that there was only one key to the car which was kept either by his Mom or Dad; that this key was never left in the car. He testified that when he brought the car back he gave the key to his parents; that he drove the car sometimes at night, he thought about three times; that sometimes he would take his sisters to shows and drive to the place of his employment ; that he used the car to haul walnuts which were picked up on their farm. He gave this testimony:

“Q. Did you on occasion take this Studebaker automobile and drive it from your parents’ home up to the Williams filling station where you work? A. Yes, sir.”

He said he didn’t drive the car every day he worked at the station; that he would either ride with his father or hitchhike sometimes. He said his father owned another automobile. The evidence is that Mrs. Hill used the Studebaker to go to town or for whatever use she needed it. He gave this testimony:

“Q. Now when you would take the car to work, were you given any instructions by your parents as to what you should do after you got off work? A. I should — ■ they told me to come home, or go over to my brother’s house.” His brother lived in Springfield about a mile and a half from the Williams Filling Station. Witness testified :
“Q. Now, Willford, did you obtain permission from either of your parents to drive the car to work on October 27th, 1960? A. Yes, sir.”

He was asked that during the time his father owned the Studebaker car if he had ever turned it over to anyone else and let them drive it and his answer was that he usually made it a rule not to loan the car. He said he never let anyone have it that he remembered of. He admitted that when he and James Alexander used the car to pick up walnuts sometimes Alexander backed up the car but he stated that neither of his parents was ever present when Alexander drove the car and that he, at no time, told them about it. He gave this evidence:

“Q. Had James Alexander ever borrowed this car from you before? A. No, sir.
“Q. Had he ever driven it out on the highway, to your knowledge ? A. Not that I remember.”

On cross examination witness testified that he was a pretty good friend to James Alexander; that they were in school together, separated for a time and renewed their acquaintance about May or June, 1960, shortly after Alexander married; that he knew Alexander’s wife, Naomi. He admitted he ran around with him but said “not almost every day”. He testified that he worked at the filling station at nights, got off in the morning at 8:00 o’clock and he had, after getting off work, gone to Alexander’s house a few times and, on these occasions, drove the Studebaker. He admitted that he had gone to the Alexander home, picked him and his wife up and gone swimming at Grant’s Beach but he denied he ever loaned his car to Alexander to go pick his wife up and bring her to the beach after work. He admitted that he and Alexander had picked walnuts up for sale, maybe three or four times a week for a period of five weeks and they used either the Studebaker or Alexander’s car. He gave this evidence:

“Q. Who would drive the car when you went walnut picking ? A. I would drive.
“Q. All the time? A. Most as I can remember I would.”

He testified he had no remembrance of going away from Springfield in the car. He stated he did not make a trip to Joplin with Alexander and his wife that he remembered of. He admitted that on February 10th, he took Alexander and his wife to the drive-in theatre in the Studebaker. He denied that that occurred quite frequently. He testified they went once or twice and that he drove.

Witness testified that on the morning of October 27th Alexander came to the filling station about 8:30 and wanted to borrow the car to see about a job. He stated he thought he was just going to the corner of the By-Pass; that he told him he could use the car; that they had not discussed the matter prior to the morning of October 27th; that Alexander said he was going to the corner to look for a job and he told him to hurry right back with it because he had to have it when he got off work at 1:00 o’clock. His hours were from 8:00 o’clock A.M. until 1:00 o’clock. He gave this evidence :

“Q. Now, had James Alexander ever driven this car of yours prior to this occasion? A. I don’t know. He probably had, I don’t know.”

James Alexander testified that he and Willford H. Hill had been very close friends in high school; that they renewed their association about May or June, 1960, when the Hill boy came by and took him for a ride in the Studebaker. He said that Willford would come by their house at all hours before and after work, early morning and late at night and that they went swimming together, went to drive-in movies, gathered walnuts many times and on one occasion went to Joplin; that they took the Studebaker nearly every time and each of them drove at times. He admitted testifying on deposition that he had never used the car before the day of the accident. He said Willford had asked him to state that he never did drive the car, but admitted he had been advised that if he won this lawsuit he could collect for his medical bills. He also said that he and his wife had driven their car to Hill’s house and gone on from there in Hill’s car to pick walnuts and that they had never seen the Hill boy obtain the car key from his parents or ask permission to take the car, but that he had taken the key from his pants pocket or found it in the car.

Naomi Alexander, wife of James, testified to the same facts that her husband testified to except she said they went to Joplin in the afternoon after planning the trip at her mother’s, while James Alexander said that they went early in the morning after planning the trip at his father’s.

Mrs. Nellie Springer, owner of the apartment where the Alexanders lived, testified that Willford H. Hill visited the Alexanders at all hours of the day and night and that he drove a blue Studebaker.

Mrs. Vera Taylor said she saw the two boys together every day for about a week and that the Hill boy was driving a blue Studebaker.

With regard to the knowledge of Mr. and Mrs. Hill concerning the use of the car by Willford, Mr. Hill testified that he didn’t think the boy took the car to Joplin and the ■boy said he had no recollection of going to Joplin. Mr. and Mrs. Hill testified that they did permit the boy to take the car to work at times, but his instructions were to return home after work, except he was permitted to go to his brother’s home once in a while; that they had no knowledge of his running around after work or letting anyone else drive the car; that they never authorized him to permit anyone else to drive it, although they had never specifically told him not to let others drive, except his sisters. Willford H. also testified that he had never been given permission by his parents to allow others to drive the car and that he knew his father would not let others drive his car.

The evidence is that sometime prior to the accident, the Hill boy had been employed at the Snow White Lodge on U. S. 66 By-Pass and at the time of the accident was working part time at the Homer Williams Station at the corner of Division street and 66 By-Pass.

The boy’s testimony that he was permitted to take the car and drive to work when he was working at the Williams Service Station was corroborated by the testimony of Homer Williams and a neighbor, John Bishop, who testified that he had taken the boy to work or had seen him walking toward town while the Studebaker was parked in the yard at the Hill home. He also testified that he observed the boy used the car about one night a week.

Defendant Alexander testified that he had made arrangements with Willford Hill to borrow the car while Willford was at work at the station the day before the accident and that his use of it was at the suggestion of Willford. He testified further that on the morning of the 27th he simply went by the station and picked up the car; that there was no conversation as to where he was going and that Willford told him to be back by 4:00 o’clock. However, Homer Williams corroborated the testimony of Willford H. Hill and said the Alexander boy came by the station at 8:30 or 9:00 o’clock on the day of the accident and asked Hill if he could borrow the car to go down to the corner to see about a job that was advertised in the paper.

Mrs. Hill, mother of Willford H., testified that Willford did not work at the station the day before the accident but was at home helping her clean the attic preparatory to moving and that Willford was to get off at 1:00 o’clock the day of the accident.

The scene of the accident was 10.8 miles from the Williams station. The testimony is that Willford did not know Alexander was going so far and did not tell him he could do so. We think the evidence is clear that Willford had no interest in the trip and was not in the car at the time of the accident. Likewise, the evidence is clear that Mr. Hill, the owner, had no knowledge of the fact that Alexander was driving the car until after the accident and would not have permitted it if he had known. There was nothing connected with the trip to benefit either Mr. or Mrs. Hill.

William Blevins testified that he had talked to Mr. Hill at the hospital the day after the accident with reference to insurance ; that Mr. Hill said his son had let the Alexander boy have the car to look for a job at Dayton and he had insurance on the car and had turned it over to the company. Mrs. Blevins testified to a similar conversation with Mr. and Mrs. Hill, alleged to have taken place in her hospital room. Mrs. Longwell testified that at her house, Mr. and Mrs. Hill stated that if their son had given permission for the Alexander boy to drive the car their insurance would cover or they would drop the insurance. Naomi Alexander testified to similar statements.

Mr. Hill said the question of insurance was brought up at the Longwell residence and he said he didn’t know whether the company would pay and that he did not say it would cover if Alexander had permission from his son but that it was up to the company. He also testified that in talking to Mr. and Mrs. Blevins he told them he had insurance and had reported it to the company but did not tell them that it would take care of anything.

The trial court, in its memorandum and judgment, stated:

“* * * The father and mother both testified as to very strict control over the son’s use of the car, but the weight of the evidence indicated that the son used the car quite a bit, that he and the minor defendant were very close friends and that he had allowed the minor defendant to drive the car on at least several occasions. There was no evidence, however, that the owner had any knowledge of his son allowing anyone else to drive the car or had ever agreed to his son letting anyone else use the car in any fashion.
“Another factor of the case which this Court feels is quite important is that when the father bought the car and bought this insurance policy he listed his son, a minor, as one of the drivers of the car and paid the increased premium for this reason.
“ * * * After reading all of these cases this Court feels that we must look at the facts of everyday life. The Plaintiff company contracted to insure against liability anyone driving the car with the permission of the owner. The owner stated in his application for insurance that he had a teenage son who would be driving the car. Everyone knows that teenagers frequently drive each other’s automobiles. If the father had given permission to this Defendant to drive this car there would be no question but that the insurance company would have to defend this case. Certainly when a father allows his teenage son to drive his automobile frequently, and for many different purposes, as this father did, we all know that the son may upon occasion allow a friend of his age to use the car for an errand. This is exactly what happened in this case and this Court feels that the Defendant James Alexander is an insured within the meaning of the policy and that in our modern society it is essential for the public as a whole that these policies be construed in this manner. * * *
“WHEREFORE, it is Ordered, Adjudged and Decreed that the Defendant James Alexander is an insured of the Plaintiff within the meaning of the policy attached to this petition, * *

In our opinion we will refer to the appellant as plaintiff and to the respondents as defendants, the position of the parties in the lower court.

In cases tried by the court without the aid of a jury courts of appeals must review the facts upon appeal as in suits of an equitable nature; it is the court’s responsibility to make its own determination of the facts and where its examination of the evidence impels conclusion that the lower court’s findings are clearly wrong, court will not hesitate to make findings contrary to them. However, the judgment shall not be set aside unless clearly erroneous, and due regard shall-be given to fhe opportunity of the trial court to judge of the credibility of the witnesses. Section 510.310 [4] RSMo 1959, V.A.M.S.; Fischman v. Kiphart, Mo.App., 297 S.W.2d 784, 786 [1]; Logan-Moore Lumber Company v. Maddi, Mo.App., 325 S.W.2d 72, 73 [1, 2.].

Under plaintiff’s assignment of error No. 1, it complains of the judgment of the court holding that James Alexander is an “insured” within the meaning of the policy of insurance issued by plaintiff because (A) Alexander did not have the consent or permission of the named insured to drive the insured’s automobile at the time of the accident.

In construing contracts courts must give effect to the intention of the parties. The omnibus clause extending coverage of automobile liability policy to person using automobile with permission of named insured should not be construed so as to give clause a meaning which either extends or restricts the coverage beyond that usually provided. Haynes v. Linder, Mo.App., 323 S.W.2d 505, 509 [3, 4, 5], On page 510 [8] of 323 S.W.2d the court states:

“It is established that the permission contemplated by the omnibus clause can be either express or implied from the conduct and statement of those in position to give it. McKee v. Travelers Ins. Co., Mo.App., 315 S.W.2d 852, 855; Varble v. Stanley, Mo.App., 306 S.W.2d 662, 666; Annotations, 5 A.L.R.2d 608; 160 A.L.R. 1202 ; 5A Am. Jur., Automobile Insurance, § 94, page 92; 72 A.L.R. 1397. It can, for example, be given by knowledge and acquiescence in such use. 45 C.J.S. Insurance § 829c(2) (b), pp. 897-898; 5A Am.Jur., Automobile Insurance, § 94, pages 92-93; Annotation, 5 A.L.R.2d 610; Cf. McKee v. Travelers Ins. Co., supra. However, the permission contemplated is something more than mere sufferance or tolerance without taking steps to prevent, and the term is used, rather, in the sense of leave, license or authority with the power to prevent. Varble v. Stanley, Mo.App., 306 S.W.2d 662, supra; 45 C.J.S. Insurance § 829c(2) (b), p. 897.
“It is the general rule that one to whom the insured has given permission to use the automobile has no authority to delegate or grant such permission to another so as to make the latter an additional insured, but the insured’s conduct, or the nature and scope of the permission granted by him may be such as to indicate permission to such other, or to authorize the first permittee in turn to permit such other to use the automobile so as to bring the second permittee within the coverage of the policy. See, Ris-jord-Austin, Automobile Liability Insurance Cases, Chapter 20, pages 127-28; 45 C.J.S. Insurance § 829c(2) bb, p. 901; Annotations, Automobile Insurance—‘Omnibus’ Clause, 72 A.L.R. 1401, 160 A.L.R. 1210, 5 A.L.R.2d 643; 5A Am.Jur., Automobile Insurance, Sec. 96, page 96ff.; * * * 27 M.L.R. (1962) p. 25 (B. Permissive User); Speidel v. Kellum, Mo.App., 340 S.W.2d 200, 202 [1].

In Varble v. Stanley, Mo.App., 306 S.W.2d 662, 665 [4-7], Judge Ruark, speaking for this court, stated:

“There is no question that the permission provided in the omnibus clause can be either express or implied from the conduct of those in a position to give it. But as a general rule the person claiming such permission must prove it, and no implied permission can arise merely because someone obtained possession of the property and used it without the knowledge of the named insured.”

M. F. A. Insurance Company v. Lawson, Mo.App., 336 S.W.2d 123, was a declaratory judgment action to determine insurer’s liability for injuries received in collision caused by the driver of the insured’s automobile. The same question was involved in this suit as in the instant case under the same omnibus clause. The question presented is, was the actual use of the automobile at the time the collision occurred with the permission of the insured or his spouse ?

The facts in the case were: Udell Hayes owned an automobile and had a liability policy with an omnibus clause similar to that of the policy under consideration here. His wife had a sister named Lenora Kelly. Mrs. Hayes drove the car to work, called her sister and asked her to run an errand for her in the car, directed her to go straight to a floral shop and return and bring back the keys. Kelly drove to the home of defendant, Lawson, and with her as a passenger completed the errand. She then drove around town for a while and later to a beer stand where she allowed Lawson to drive. Lawson drove two or three miles out on the highway, struck a car causing the injuries complained of. The court found there was no evidence that either Hayes or his wife knew that Lawson would, or did, drive the car until after the accident. The court said the question was: “Was the actual use of the automobile at the time the collision occurred, with the permission of insured, or his spouse?” The court found that the evidence overwhelmingly tends to prove that there was not permission given. In its ruling it stated: “There is no room here for application of the rule of prior conduct”, citing Haynes v. Linder, Mo.App., 323 S.W.2d 505, par. 9.

In Horn v. Allied Mutual Casualty Company, 10 Cir., 272 F.2d 76, the court discusses the interpretation of omnibus clause of an automobile liability policy issued in Kansas. The action was for a declaratory judgment by the insurer to determine liability under automobile policy. The facts were that the insured permitted his stepdaughter to drive the insured’s automobile to school but did not give her permission to allow others to drive it prior to the day of the accident. She permitted the defendant to drive the automobile when she was not present. The driving was in no sense for the benefit of the insured or the insured’s permittee and the court held that neither the step-daughter nor permittee was within coverage of the liability policy which covered permittee only when automobile was in actual use with permission of insured.

We are indebted to the attorneys, both for plaintiff and defendants for able briefs and discussion of both the law and the facts in the instant case. The question here involved has been before the appellate courts in Missouri and in nearly all the states in the Union and almost every phase of the issue here presented has been discussed. We have cases cited in the briefs of both plaintiff and the defendants and we think the law is well settled in this state and clearly stated in Haynes v. Linder, Mo.App., 323 S.W.2d 505, 510, to-wit:

“It is established that the permission contemplated by the omnibus clause can be either express or implied from the conduct and statement of those in position to give it. * * * However, the permission contemplated is something more than mere sufferance or tolerance without taking steps to prevent, and the term is used, rather, in the sense of leave, license or authority with the power to prevent.”

The general rule that one to whom the insured has given permission to use the automobile has no authority to delegate or grant such permission to another so as to make the latter an additional insured but the insured’s conduct or the nature and scope of the permission granted by him may be such as to indicate permission to such other or to authorize the first permittee in turn to permit the other to use the automobile so as to bring the second permittee within the coverage of the policy. Winterton v. Van Zandt, Mo.Sup., 351 S.W.2d 696.

An examination of the facts in the instant case impels us to reach a conclusion that the lower court’s findings are clearly wrong and that the judgment is erroneous. We find from the evidence that the insured’s conduct or the nature and scope of the permission granted by him to his son is insufficient to indicate permission to his son to authorize him to permit Alexander to use the automobile so as to bring the second permittee within the coverage of the policy. James Alexander testified in a deposition that this was the only time he was ever permitted to drive the Studebaker automobile. In the trial of the case he changed his testimony. Yet, the evidence is clear that Alexander had never before driven the car unless Willford H. Hill was with him and there is no evidence that the insured had any knowledge that his son had ever permitted anyone else to drive the car.

The evidence is that when the insured took out the policy of insurance with plaintiff he designated his son as a minor member of the family who would drive the car. Under the reasoning of the trial court if a father permitted his son to drive the car he would necessarily have knowledge that he would permit his friends to also drive it. We cannot agree with this reasoning.

We find there is no merit in the second alleged error complaining of the trial court’s action in allowing $350.00 to the guardian ad litem of defendant, James Alexander. The law is that the trial court has power and authority to allow a guardian ad litem compensation for his services under implied power to appoint, as one of the court’s inherent powers. Jones v. Yore, 142 Mo. 38, 47-48, 43 S.W. 384, 387. The duty of the guardian ad litem so appointed is to defend the suit and he cannot admit anything or waive anything which goes to sustain the adverse party’s claim. The office does not involve only perfunctory or shadowy duties. The guardian is to do for him what with riper judgment he would do for himself. It is the duty of said guardian to employ competent attorneys and counsel to prepare and plead his case; to collect testimony, summon witnesses, and at the trial to afford such aid to his counsel as may be necessary in unexpected difficulties. That is what the guardian ad litem did in this case and the court’s judgment allowing him attorney fees should be sustained. Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 983 [10,11], 87 A.L.R. 660.

It is, therefore, ordered that the judgment of the trial court in case No. 8100 be reversed and the cause remanded with instructions to enter judgment in accordance with the prayer of plaintiff’s amended petition.

Appeal case No. 8102 involves an appeal by the guardian ad litem from the judgment of the court overruling the motion for rehearing on the amount of fee of $350.00 allowed by the trial court for services rendered as guardian ad litem and asks that the fee be adjusted to at least $600.00.

It is the contention of plaintiff that the judgment of the trial court for $350.00 should be reversed for the reason that separate allowances should be made for services of the same person as guardian ad litem and as attorney for minor defendant. This law was declared in Franz v. Buder, 8 Cir., 38 F.2d, 605.

In the instant case plaintiff brought an action for declaratory judgment naming James Alexander, a minor, as defendant. Under Section 507.190 RSMo 1959, V.A. M.S. — Suits against infants not to proceed without guardian, it is provided: “After the commencement of a suit against an infant defendant, and the service of process upon him, the suit shall not be prosecuted any further until a guardian for such infant be appointed.”

Under this section of the statute the trial court appointed Arch M. Skelton, an attorney at law as guardian ad litem for such minor defendant. At the end of the trial, in which Mr. Skelton rendered very efficient services in behalf of the minor, as guardian ad litem, the trial court allowed him a fee of $350.00 to be assessed as costs in the case.

It was held in Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321, 323 [2] that the only statutes authorizing circuit courts to make an allowance to a guardian ad item seem to be in partition suits (§ 528.530, “shall be taxed and paid as other costs in the case”), and in proceedings for the formation and administration of drainage and levee districts (§ 246.190, “out of the moneys in the funds of the districts”). But apart from such provisions, it is held that the power and authority to allow a guardian ad litem compensation for his services is implied from power to appoint, as one of the court’s inherent powers. Jones v. Yore, 142 Mo. 38, 47-48, 43 S.W. 384, 387.

In Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 983, [10,11] the law is stated: “ * * * The duty of the guardian ad litem so appointed is to defend the suit and he cannot admit anything or waive anything which goes to sustain the adverse party’s claim. (Citing authority). This court has clearly stated that the appointment of a guardian ad litem for an infant defendant is not a hare technicality and that the office does not involve only perfunctory or shadowy duties, saying: ‘This guardian is to do for him what with riper judgment he would do for himself. He is to appear for him in his proper person, employ competent attorneys and counsel to prepare and plead his cause. He is to collect testimony, summon witnesses, and at the trial to afford such aid to his counsel as may be necessary in unexpected difficulties. It is only by exercising that attention and vigilance in the cause of the minor, which he would exert in his own, that he fairly discharges his duty. * * * ’ ”

As shown by the record in this case the guardian ad litem, being an attorney at law, performed all these duties and we think the court had inherent power to allow him the fee of $350.00 for the services rendered as guardian ad litem.

However, from the evidence we think the trial court committed no error under the facts presented in overruling the guardian ad litem’s motion to increase the amount of allowance to $600.00.

Judgment of the trial court in case No. 8102 affirmed.

RUARK, P. J., and STONE, J., concur.


author: STEAKLEY, Justice. SMITH, Justice

text:
    The AETNA CASUALTY AND SURETY COMPANY, Petitioner, v. Raymond MOORE, Respondent.
    No. A-8731.
    Supreme Court of Texas.
    July 25, 1962.
    Rehearing Denied Oct. 10, 1982.
    Bailey & Williams, Dallas, for petitioner.
    Yarborough, Yarborough & Johnson, Dallas, for respondent.
   STEAKLEY, Justice.

This is a Workmen’s Compensation case in which Respondent (plaintiff below) alleged a general injury to his right shoulder, neck, and back, together with shock and injury to his entire body, nerves, and nervous system. Petitioner alleged by trial amendment “that any disability or incapacity to the plaintiff resulting from the injury in question was limited to the right arm and therefore was a specific injury to the right arm.” The case was submitted to the jury as a general injury over the objection of Petitioner that the charge of the court did not “include a submission to the jury of the question of whether or not the disability or incapacity involved was at any period of time limited to the use of the arm * * * and the defendant specifically requests that the requested special issue in separate form and in writing this date be added to the charge submitted to the court.” The requested special issue referred to was No. 2 of an originally requested series of nine and read as follows: “Do you find from a preponderance of the evidence that such disability, if any you have found in answer to the preceding special issue, was limited to the use of the right arm ?”

Judgment upon the jury verdict was for total permanent disability; this was affirmed by the Court of Civil Appeals which held that the requested issue was not proper since Respondent’s injury was to- his shoulder and a shoulder injury is not enumerated in Article 8306, Section 12, Vernon’s Annotated Texas Statutes. 350 S.W.2d 898.

Respondent is a painter and was injured in falling- from a ladder; he described the actual blow as being to his shoulder and back. Dr. Richard B. Herrick, the expert medical witness offered by Petitioner, described the place of injury as “a slight evulsion or a small chip fracture of bone on the interior surface of the glenoid socket of the shoulder.” He also described a marked swelling of the entire shoulder on the occasion of an examination of Respondent; however, it was- the expert opinion of this witness that the- shoulder injury would affect the use of his right arm only, his statement being that “I thought he probably would have fifteen per cent permanent partial disability of his arm” which would not “be inclined to affect any other part of his body.”

On the other hand, Dr. M. A. Schalck, the expert medical witness offered by the Respondent, testified that he found that Respondent also had trouble in the lumbo-sacral joint, and testified in some detail concerning this trouble; it was his opinion that Respondent had suffered an injury in the lower part of his back.

The conflicting testimony of the medical witnesses presented a fact question, on which we express no opinion, i. e., whether Respondent’s disability was general or was limited to the use of his right arm. However, it is clear from the testimony of both medical witnesses, and from Respondent himself, that the injury itself (as distinguished from the question of disability) was not confined to Respondent’s right arm. See Texas Employers’ Insurance Assn. v. Sevier, Tex.Civ.App., 279 S.W.2d 473, writ ref. n. r. e. Indeed, Petitioner did not allege an injury to Respondent’s right arm. Its point of error here is that it was entitled to the defensive issue quoted above — phrased in terms of disability as distinguished from injury — because the controlling question is not where the injury occurred but whether disability from the injury is confined to the use of a specific member.

We' thus have the problem of -whether the Workmen’s Compensation Act limits recovery to a specific injury when the injury itself is not to a specific member enumerated in Section 12 of Article 8306, but where the disability resulting therefrom is limited to the use of an enumerated specific member. We point out that if not, and as acknowledged by counsel for Respondent in oral argument, the injured employee will be subject to a take nothing judgment if he is unable to establish a loss of earning capacity, notwithstanding the fact that he has suffered a disability in the loss of use of a specific member.

Petitioner relies principally on the case of Coleman v. Hartford Accident and Indemnity Co., Tex.Civ.App., 297 S.W.2d 236, wr. ref. This case involved a specific injury to the arm (although not shown by the opinion in the case, the record discloses that the injury resulted from severe) burns to the arm between the wrist and shoulder), and the holding of the case is that “if the evidence shows that the other portions of the claimant’s body were not impaired except as affected by the injury to or loss of use of the particular member, there would be * * * no recovery allowed for the impairment of any other portions of claimant’s body.” Petitioner urges the extension of this holding to the situation in the instant case where the actual injury is not to a specific member.

Respondent, on the other hand, cites the opinions of the Courts of Civil Appeals, later noticed, and draws the issue in this manner: “In order for compensation to be confined to a specific member there are two necessary elements: (1) The first is that the injury must be confined to the specific member, and (2) that some incapacity to the specific member must result. * * * But for emphasis, we again repeat that to confine an injured workman to specific compensation, the ‘injury’ as well as the incapacity must both be confined to the specific member.”

Under Respondent’s view, we would not reach the question of disability limited to the use of Respondent’s arm and whether Petitioner was entitled to the requested Special Issue No. 2, since the actual injury was not confined to Respondent’s right arm.

The pertinent portions of Section 12 of Article 8306, read as follows:

“Sec. 12. For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent (60%) of the average weekly wages of such employee, but not less than Nine Dollars ($9) per week nor exceeding Thirty-five Dollars ($35) per week, for the respective periods stated herein, to wit:
“For the loss of an arm at or above the elbow, sixty per cent (60%) of the average weekly wage during two hundred (200) weeks.
“In all cases of permanent partial incapacity it shall be considered that the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the loss of that member; but the compensation in and by said schedule provided shall be in lieu of all other compensation in such cases.”

This Court said in National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089, 1090, that “A reading of Article 8306 of our Workmen’s Compensation Laws will disclose that it divides compensable injuries into two main classes: (a) General injuries, and (b) specific injuries. As we interpret the pertinent provisions of Article 8306, all compensable injuries must be corn-pensated as general injuries unless such statutes specially classify same as the subject of specific compensation. It follows that in the case at bar, Lowery must be compensated as for a general injury unless we can find some statutory authority to compensate him for a specific injury.”

Although the question has not been directly presented as here, the Courts of Civil Appeals appear to have considered that actual injury to a specific member is prerequisite to specific injury compensation. For example, in Texas Employers’ Insurance Assn. v. Chitwood, Tex.Civ.App., 199 S.W.2d 806, no writ history, the court said:

“This contention is that the maximum it was liable for in any event was 200 weeks instead of 300 weeks allowed by the judgment. This contention is based on the theory that the effect of the injury was partial and permanent incapacity of one leg. Plaintiff’s pleading covered a general injury as well as specific injury to the leg. From the fact that compensation was for 300 weeks and the court never found specific injury, it is to be inferred that the trial court found a general injury rather than a specific partial injury to the leg. The injury to plaintiff was to the joint. There was a rather severe injury to the hip joint. If plaintiff suffered loss of use of his leg in any degree it is not the result of direct injury to his leg but the result of the injury to his hip joint.” (Our emphasis.)

See also Millers’ Indemnity Underwriters v. Cahal, Tex.Civ.App., 257 S.W. 957, and Maryland Casualty Co. v. Jones, Tex.Civ.App., 73 S.W.2d 668, each with no writ history.

The prevailing view of the courts of other states is to the contrary. The Supreme Court of South Carolina in Roper v. Kimbrell of Greenville, 231 S.C. 453, 99 S.E.2d 52, considered an appeal by the insurance carrier asserting an opposite position from that of Petitioner here, i. e,, that a specific injury award was error because “the finding of partial disability of each arm cannot be permitted to stand because there is no evidence of an injury directly to the arms.” The injuries consisted of rib fractures and a separation of the joint between the collar bone and the shoulder. The Court held that “loss of use” and “partial loss of use” in the South Carolina specific injury statute “are simple, everyday, unambiguous words, and are to be given their' ordinary, generally accepted meaning. * * * Nothing in Section 72-153 or elsewhere in the statute relating to workmen’s compensation suggests restriction of their meaning to such total or partial loss of use as has resulted from a direct injury to the member itself.” The Court then pointed out that “It is well settled that award may be made, under Section 72-153, for loss, or loss of use, of a specific member, though there be no showing that the injured employee has suffered loss of earnings or of earning capacity.” Thus the injured employee was entitled to a specific injury recovery without establishing loss of earning capacity resulting from disability to a specific member not itself directly injured.

The case of In re Burns, 218 Mass. 8, 105 N.E. 601, by the Supreme Judicial Court of Massachusetts, involved an award upon a specific injury basis of permanent incapacity of both legs resulting from an injury to the spine and spinal cord causing paralysis of the lower limbs. The insurer contended in this case as in Roper, supra, that the award was erroneous because there was no actual injury to the feet or the legs themselves. In denying this contention, the Court said:

“In common speech the word 'injury/ as applied to a personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability. If one . by external violence had his optic nerve severed close to- the brain, or its func- ■ tion destroyed so as to result in blind- ■ ness, although nothing whatever had ■ been done to the eyes themselves or to the structures immediately surrounding them, it yet would be said in common speech that his eyes had been injured to the point of uselessness. Whatever part of the human body thus has been made incapable of its normal use so that practically it has ceased to be available for the purpose for which it was adapted, is certainly injured according to the common understanding of men.”

Stanley v. United Iron Works Co., 160 Kan. 243, 160 P.2d 708, by the Supreme Court of Kansas, considered a head injury resulting in impairment of sight in one eye and hearing in both ears for which the injured employee recovered specific injury compensation. The contentions of the appealing employer are stated by the Court as follows:

“Appellants further contend that unless an accident results in an injury directly to the affected member or organ’ there can be no recovery for scheduled injuries. Baldly stated their argument is that if an employee is struck on the head and is injured to the extent such injury results in partial loss of the use of a scheduled member, or if he suffers an injury to his spine which causes a permanent partial paralysis of some such member or organ, the only com-pensable scheduled injury is that place on the body, which comes in direct contact with the blow. We confess that to us, under findings such as we have in this case, the contention is a new and startling one. So new that we know of no case in this state where it had been urged. The fact that the learned counsel for appellants cite no decision to support it while the equally learned counsel for appellee fail to direct our attention to one refuting it indicates to us that there are none. So startling in its significance and far reaching effect that, in view of the language of the applicable statute, we are inclined to wonder if this is the first time anyone has had the temerity to suggest it. Is it possible the Workmen’s Compensation Act is so limited in its scope ? We do not think so.”

We are in agreement with the underlying reasoning of the foregoing cases that violence would be done to the spirit and intent of Workmen’s Compensation Laws if the specific injury provisions are construed to limit such recovery to instances of direct injury to the specific member, principally in the fact that to hold otherwise would preclude recovery by an injured employee of compensation for a resulting injury to a specific member not directly involved in the accident when the injured employee is unable to establish a resulting loss of earning capacity. The view we are adopting would seem clearly to be more consistent with the purposes of our Workmen’s Compensation Act in its provision for compensation to an injured employee for the loss, or the loss of use, of a specific member, regardless of the question of impairment to his earning capacity. See Traders & General Insurance Co. v. Maxwell, Tex.Civ.App., 142 S.W.2d 685, writ dismissed, in which it was said:

“The statute thus denominates the loss of such member, or the loss of its use, as partial incapacity. So, in providing compensation therefor the law conclusively presumes that in the loss or the loss of the use of such a member the workman has sustained partial incapacity, and for that reason it is held in cases of such specific injuries that it is not necessary to show that incapacity has in fact resulted therefrom.”

We hold, then, that as a matter of substantive law, Petitioner was entitled to the submission of requested Special Issue No. 2. This, in turn, brings us to the question which is raised by Respondent by counterpoints, namely, whether, as a matter of procedure, Petitioner lost its right to the submission of the issue in the fact that it was requested in the form of one of a series of nine as a single request, rather than separately. We think not under the particular circumstances here.

Edwards et al. v. Gifford, 137 Tex. 559, 155 S.W.2d 786, established the tests of “intermingled in such a way as to be confusing” and “If one or more of the special issues requested en masse should not be given,” in resolving the problem of compliance with the former statutes and with present Rule 277, Texas Rules of Civil Procedure. Implicit in these tests, as stated in the cited case, is protection of a trial judge against having “to search through the requested issues and submit those which are proper and refuse those which are improper”; also, we may add, there is the purpose of protecting a trial judge against the deliberate concealment of proper issues among many not so, with the burden on the trial judge to ferret out the proper issue to protect the case against reversal. We are in full agreement with the foregoing and would not hesitate to uphold these tests in the instant case were we of the opinion that they are determinative here.

It is true, as urged by Respondent, that requested Special Issue No. 1 duplicated Issue No. 1 as given by the court; it was, however, related to requested Issue No. 2, and was not an improper issue which should not have been given. Moreover, there was no intermingling of the requested issues designed to confuse, or which was confusing; rather, the requested issues were a series of which Issue No. 2 in question was an integral part. We are persuaded that the trial court was not misled or confused by the form of the request but refused the series because he did not agree with Petitioner’s theory of the case and was of the view that the crucial Issue No. 2 requested by Petitioner was improper; this is the question we have resolved to the contrary in the forepart of this opinion.

The judgments of the District Court and of the Court of Civil Appeals are reversed and the cause is remanded.

SMITH and GRIFFIN, JJ., dissent.

ON MOTION FOR REHEARING

Rehearing denied.

SMITH, Justice

(dissenting).

The dissenting opinion heretofore delivered is withdrawn and the following substituted therefor.

I respectfully dissent. None of the evidence places the injury sustained by Raymond Moore in the category of a specific injury. The petition upon which plaintiff went to trial contained no allegations direct, alternatively or otherwise, which could possibly afford the basis for a recovery due to a specific injury to the arm. The Legislature has divided compensable injuries into two main classes: general and specific. The injuries described in Moore’s petition clearly fall in the class of general injuries. If the rule of the majority is followed, every injured person in the future, no matter if the facts confine his cause of action to a general injury, will be compelled to run the risk of losing his right to a recovery for total and permanent disability as a result of such injury solely on the defense that the disability was limited to a specific member.

The insurer in this case did not plead a specific injury as a defense until it filed a Trial Amendment. Neither did it plead that the injury to the arm was the sole cause of incapacity. In its pleading, it was alleged: “ * * * [T]hat any disability or incapacity to the plaintiff resulting from the accidental injury in question was limited to the right arm * * This allegation has no support in the evidence unless the words “arm” and “shoulder” are synonymous. Of course, they are not. They are two different and separate parts of the body. If the Court’s opinion is followed, then a workman who sustains a general injury to his shoulder could be limited to a recovery for a specific injury to the arm.

Moore, the injured workman, under the facts in this case, could not have pleaded or proved a specific injury alone. Of course, a plaintiff may plead and prove that a specific injury extended to other parts of the body and, thus, become a general injury, but this is the first instance where a claimant could be deprived of a recovery for a general injury merely on a possible fact finding that the disability suffered was limited to a specific member of the body.

Aij examination of Section 12, of Article 8306, will reveal that an injury, such as testified to by the insurer’s own doctor, as well as Moore’s doctor, which is the basis of this suit, is not classified as a specific injury. In fact, the insurer does not classify the injury as a specific injury to the arm, except in the sense that it wants the trier of the facts to find that disability, if any, was limited to the use of the right arm. I agree with Moore that to confine an injured' •workman to specific compensation, the injury as well as the incapacity must both be confined to the specific member.

The very first issue in a Workmen’s Compensation case either assumes an injury, if the facts are undisputed, or inquires whether or not the plaintiff sustained an accidental injury in the course of his employment. In this case, the plaintiff pleaded a general injury and the first issue submitted to the jury was: “Do you find * * * that [the] accidental injury sustained by Raymond' Moore on March 23, 1959 * * This-issue assumed injury because the undisputed facts showed a general injury. In reality, the insurer’s position in this case can be narrowed to the contention that Moore received incapacity to a specific member as the end result of a general injury. This is not the law, and never has been. Where a claimant sustained only a general injury. such an injury cannot he reduced to a specific injury merely because of a jury finding that the disability suffered was limited to the use of a specific member. In the absence of pleadings and proof of an injury to a specific member, and where all the evidence shows only a general injury, the defense embodied in a requested issue to the effect that the claimant’s incapacity was limited to the loss of use of the specific member can never be available. This is true in the present case simply because all of the pleadings and evidence conclusively show that Moore had sustained a general injury, as well as a general incapacity, which could have extended to the loss of use of his arm. Moore did not plead affirmatively that he had sustained an injury to his arm, but nevertheless, his pleadings and proof would permit him to recover for a general injury. If his arm was affected as a result of the general injury to the shoulder, the proof all the more abundantly supports the finding of the jury that he had sustained a general injury. In other words, if the shoulder was the only part of the body which was injured, then regardless of the results, it is a general injury.

The Court’s opinion will compel the trial courts, in the future, to submit sole cause issues on every specific member that may become involved as a result of a general injury, whether such general injury be to the shoulder, the back, the head or the hip. Since the claimant did not affirmatively plead a specific injury to the arm, and since the defendant wholly failed to plead and prove a specific injury to the arm, and since there was no injury sustained to the arm, there was no basis for the defense that claimant’s incapacity was solely the result of incapacity to the arm. All of the evidence in this case was to the effect that the injury was to the shoulder. Since there was no actual injury to the arm, the trial court properly refused to submit the requested issue. How can it be successfully argued that the amount of recovery allowed under Section 12, Article 8306, for the loss of use of the arm can be in any sense the sole standard for measuring the compensation for the injury actually sustained, in this case, a general injury to the shoulder? Compensation is recoverable for the disability suffered by Moore from the injury to his shoulder including that occasioned to the use or function of his arm. See: Bumpus v. Massman Construction Co., Mo.App. (1940), 145 S.W.2d 458.

The holding by this Court is that although the injury concededly falls within the statutory definition of a general injury, nevertheless, it may be compensated for as a specific injury. This question must be decided in the light of the statutes and the evidence. Our statute defines injury as “damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” See: Section 20, Article 8306. This definition of injury can only be construed to mean that it requires actual damage or harm to the portion of the body in question — here to the arm of the claimant. Despite this explicit statutory definition, the Court has chosen to follow cases from other jurisdictions where the term “injury” is not defined by statute.

Section 12 of Article 8306 speaks in terms of injuries and not in terms of disability. The section says: “For the injuries enumerated in the following schedule * * It does not say: “For the disabilities enumerated in the following schedule * * (emphasis added) This Court does not have the prerogative to rewrite the statute. This is especially true where to do so would limit the Claimant’s recovery for a general injury to that allowed for an injury to a specific member. It is a fundamental principle in compensation cases that an injury must be established before the issue of incapacity or any other recovery under the Act is authorized. If the source of the claimant’s incapacity grows out of a general injury to the body or the nerves thereof, which affects the extremities (here, the arm), then the source of his trouble is general incapacity and not specific.

•' In the case of Texas Employers’ Insurance Association v. Brownlee, 152 Tex.247, 256 S.W.2d 76, this Court said:

“In other words, if the loss of the use of the hand resulted solely- from the ■ injury to the fingers, the respondent would he limited in his recovery to 'that provision of the statute which provides for compensation in the event of the loss of, or the loss of the use of, the fingers.” (emphasis added)

We held in Brownlee that the evidence showed indisputably that the incapacity to the right hand was due solely “to the injury to said specific members.” We made it clear that the ultimate issue where a fact issue is raised is the issue of “sole cause,” a matter which the requested issue here wholly fails to embody. There is nothing in this case which would authorize the submission of a “sole cause” issue. The claimant, Moore, is clearly entitled, to. his general injury recovery and should not be confined to a specific injury recovery since the origin of his trouble is from the general injury to his shoulder and not to his arm.

Even assuming that the Court has reached a proper result in the application of the law te this case, the requested issue was'■nonetheless properly refused. Rule 279 of the Texas Rules of Civil Procedure' provides that the court “ * * * shall submit the controlling issues made by the written pleadings and the evidence * " * (See also Rule 277). Here, there is no evidence that will support the requested special issue that inquired: “Do you find from a preponderance of the evidence that such disability, if any you have found in answer to the preceding issue, was limited to the use of the right-arm? ”

True, Aetna’s only medical expert, Dr. Richard B. Herrick, stated that he “ * * thought (Moore) would have 15% permanent partial disability of his arm” which would not “be inclined to affect any other part of his body.” From this one statement the majority concludes that the shoulder injury would affect the use of his right arm only. However, the majority opinion completely disregards other direct testimony by Dr. Herrick. He stated: “The patient could not and would not move his shoulder in any direction * * * his symptoms were confined entirely to his right shoulder Without reservation, Dr. Herrick stated, “I thought the patient had reached the point where he would have some permanent disability in his right shoulderThis testimony was never contradicted, and it was only after these statements that the doctor concluded that the injury and disability in the shoulder “ * * * would affect the use of his right arm.” When this testimony is considered with that relied on in the majority’s opinion, it is impossible for me to agree that there is evidence supporting an issue to the effect that Moore’s disability was limited to his arm. Certainly, there is evidence of disability to the arm, but there is absolutely no evidence that the disability suffered was “limited” to that member. The disability to the arm Was only a consequence of the disability and injury in the shoulder.

The issue was properly refused; the opinion of the Court of Civil Appeals should be affirmed.

GRIFFIN, J., joins in this dissent.

      . When all of the testimony of Aetna’s witness, Dr. Herrick, is considered, it is impossible to conclude that there is any evidence to uphold the proposition, set out in the refused issue, that Moore’s disability is limited to Ms arm.

      Key to Testimony:
      “ * ⅜ ⅝ a. I have examined the shoulder once more and this time there was — this is a day or two afterwards, and by this time there was marked swelling of the entire shoulder and discoloration of the skin over an area three inches in length and one inch in width. The patient could not and would not move Ms shoulder in any direction.

      “ * ⅜ ⅜ At that time his symptoms were confined entirely to Ms right shoulder, and he was developing a satisfactory range of motion, although there was still some restriction of motion in the last fifteen degrees in all directions. Internal rotation was quite painful.
      “* * * A. He continued to have pain in his right shoulder on certain motions.
      “ ⅜ * * q Now, Doctor, at the time you saw him last in 1959, with respect to his shoulder what was your evaluation or opinion as to his prognosis at that time?
      “A. Well, the patient never returned ■ to my office and so I was unable to estimate his progress and whether he had any permanent disability or not. It was my feeling that the patient would probably have some temporary total disability to his shoulder.

      “ * ⅜ ⅜ q Now, Doctor, with respect to his shoulder at the time you saw him in February of 1960, what was your evaluation of his condition and Ms prognosis ?
      “A. I thought the patient had reached the point where he loould have some permanent disability in his right shoulder.

      “Q. And with respect to that disability, Doctor, how would it affect him, in what parts of his body would it be—
      “A. I thought it would have — well, it would affect Ms right arm, the use of his right arm.”


author: GRIFFIN, Justice.

text:
    The STATE of Texas, Petitioner, v. Glenn L. KINGHAM, d/b/a Kingham Conoco Station, Respondent.
    No. A-8876.
    Supreme Court of Texas.
    Oct. 10, 1962.
    Will Wilson, Atty. Gen., Sam Lane, Asst. Atty. Gen., C. M. Turlington, Austin, for petitioner.
    Donald W. Callahan, Houston, for respondent.
   GRIFFIN, Justice.

The opinion heretofore handed down is withdrawn.

The State of Texas brought this suit against Glenn L. Kingham in the 98th District Court of Travis County, Texas, for delinquent unemployment compensation contributions in the sum of $305.94 and penalty in the sum of $56.00, for a total of $361.94, all of which had accrued under Article 5221b-12(a), Vernon’s Texas Civil Statutes. There is no foreclosure of a tax lien on real estate involved.

The case was tried upon the merits before the Court, without a jury, and a judgment rendered in favor of Kingham, and that the State take nothing.

Upon appeal to the Court of Civil Appeals that court, without any plea to the jurisdiction of the trial court to try the cause, on its own motion held that the District Court was without jurisdiction. The majority of the Court of Civil Appeals dismissed the appeal. One of the Justices filed a dissenting opinion, 353 S.W.2d 915.

Except as otherwise indicated all emphasis is that of the writer.

As the case is before us, the controlling question is whether this suit is for a “penalty” as used in Art. V, Sec. 8, State Constitution, Vernon’s Ann.St., so as to confer jurisdiction on the District Court to try this cause, or whether this is a suit for a debt consisting of taxes and as a part thereof penalties, governed by Art. V, Sec. 16, which gives exclusive jurisdiction to the County Court in all civil cases where the matter in controversy shall exceed $200.00 and not exceed $500.00, exclusive of interest. There is no controversy over the venue of the suit being properly laid in Travis County under the provisions of Arts. 1.04(1) and 1.04(2), Chapter 1, Title 122A, Vernon’s Texas Civil Statutes.

The reasoning in the case of Jones v. Williams (1931), 121 Tex. 94, 45 S.W.2d 130, 79 A.L.R. 983, settles the question before us. After a lengthy and thorough discussion, that case holds that the interest and the penalty exactions added to delinquent taxes by the various constitutional and statutory provisions are “penalty” rather than interest eo nominee. The court says:

“The imposition of penalties is the means provided to prevent tax delinquencies, and since the word implies some form of punishment, it is obvious all legislation competent under the Constitution must he of that nature. Previous Constitutions contained no such term, and the evident purpose of the change in the Constitution of 1876 was to exclude from the legislative power the imposition of any exaction for failure to pay property taxes, except such as might come within the meaning of penalties and the rules of law applicable thereto.” L. c. top 2nd col. p. 136. (Court’s emphasis).

In the 42nd Legislature, Second Called Session, c. 18. Vernon’s Ann.Civ.St. art. 7336 note, the Legislature had passed an act releasing all interest and penalties accrued and fixed by law on all taxes due the State and all political subdivisions thereof delinquent to October 20, 1931, provided the taxes were paid on or before January 31, 1932. This act was attacked as unconstitutional because in violation of Art. 8, Sec. 10 of our State Constitution. This section prohibited the Legislature from releasing the inhabitants of any city, county or town from the payment of taxes for state or county purposes, except in case of great public calamity, and then only by vote of two-thirds of each House.

The Legislature attempted to bring its act under this Constitutional provision by declaring the “great depression” then existing was a great public calamity. This court disagreed with the Legislature and held the foregiveness act did violate Art. 8, Sec. 10. However, the court held that the act was a valid exercise of the Legislature’s power by general law to release, cancel, annul or suspend penalties previously accrued so long as those penalties had not been reduced to judgment. Therefore, whether or not the exactions for failure to pay taxes when due, constitute “penalties” controlled the decision of the cause.

In the case of Aulanier v. The Governor, 1 Tex. 653, 1846, suit was brought in a justice court of Galveston County, Texas, to recover the penalty of $100.00 for selling liquor without having obtained a license therefor. After a trial in the justice court, an appeal was taken to the district court, and then to the supreme court. One point of error assigned was that the justice court was without jurisdiction to hear the case. This was sustained and the court held the district court was the only court having original jurisdiction of the suit for $100.00. The court cited the provision of the then Constitution giving the district court jurisdiction “of all suits in behalf of the State to recover penalties, forfeitures and es-cheats.”

As regards occupation and other business and special taxes, the court said:

“In the first place, impositions for failure to make returns of and pay occupation taxes and other business and special taxes have been from the beginning to the present time penalties, sometimes named as such, sometimes referred to as forfeitures or fines, * * * but all so plainly penalties that we deem an analysis and discussion of the laws unnecessary. * * * ” Idem, bot. p. 133 and top 134 of 45 S.W.2d. (Court’s emphasis).

The Unemployment Compensation “contributions” have been held to be State taxes. Friedman v. American Surety Co., 137 Tex. 149, 151 S.W.2d 570, 576.

The case of Jones v. Williams, supra, decides that the penalty and interest added to delinquent taxes is not an incident of the taxes, but is a separate and distinct item provided by the Legislature as a punishment for failure to pay taxes, prior to delinquency, and therefore a “penalty” within the meaning of the Constitution. It follows that this suit was properly brought in the district court of Travis County, Texas.

There is no other error complained of in this court. The appellant had other complaints in the Court of Civil Appeals which were not passed on by that court in view of its holding on the matter of the jurisdiction of the trial court.

It therefore becomes necessary that we reverse the judgment of the Court of Civil Appeals and remand this cause to it in order that it may pass on the points of error raised by the appellant in that court. Petitioner’s motion for rehearing is granted and our former judgment is set aside. The judgment of the Court of Civil Appeals is reversed and this cause remanded to that court for its action consistent with this opinion.