text:
    Eva NUMER et al., Respondents, v. KANSAS CITY, Missouri, and Sam Eddy and Louise Eddy, Appellants.
    No. 23607.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      James Daleo, Norman E. Greene, Kansas City, for appellants Sam and Louise Eddy.
    Keith Wilson, Jr., Guy W. Rice, Sherwin L. Epstein, Kansas City, for appellant Kansas City.
    Solbert M. Wasserstrom, Mendel Small, Kansas City, for respondents.
   DEW, Special Commissioner.

Respondents brought this action for a judgment declaring null and void Ordinance No. 25574, passed by the council of appellant Kansas City, Missouri, by the terms of which a certain tract of real estate belonging to appellants Sam and Louise Eddy would be reclassified under the basic zoning ordinance of Kansas City from “R-5, High Apartments” to “C-2, Local Retail Business”; to enjoin such owners from making any use of such property other than prescribed for its present classification R-5, and to enjoin appellant City and its agencies from granting any permit to do so. The trial court decreed the said amending ordinance No. 25574 to be invalid and granted the orders of injunction as prayed. From that judgment appellants have appealed.

The property in question is located on the southwest corner of Armour Boulevard and The Paseo, both of which are boulevards long since established as such in Kansas City, Missouri. Armour Boulevard runs east and west, beginning at Broadway, nearly a mile and a quarter west'of the property referred to, and dead-ending at The Paseo, where that property is located, from which point Armour continues east as a narrow street designated as 35th Street. The Paseo starts at the extreme north end of Kansas City and follows almost a straight course south through the city for 18½ miles. The tract involved in this proceeding fronts 150 feet on the west side of The Paseo and 156.83 feet on the south side of Armour Boulevard. Situated on the property is a large three-story residence building, vacant at the time of the hearing in the circuit court and for some time prior thereto.

The parties stipulated as to many of the facts of the case, many of which are also matters in the nature of documentary evidence. Such agreed facts as are deemed material will be stated. The original zoning ordinance of Kansas City was enacted in June, 1923. Thereunder all four corners of the intersection of Armour Boulevard and The Paseo were zoned “U-2 Apartments”, with certain regulations prescribed. The lots adjoining those corner properties on each boulevard were also zoned “U-2 Apartments”, with somewhat lesser requirements. In 1951, there was a general amendment of the basic zoning ordinance of the city and its amendments, and the former district designations were changed, as “U”, “H”, and “A”, to R and C and others, followed by numbers, denoting various forms of such classified uses. The general classification “R” indicated residential and related uses and “C” denoted retail and intermediate business uses in various associated forms.

According to a zoning map in evidence, furnished by the office of the City Plan Commission, the accuracy of which is admitted, all four corners of the intersection of Armour Boulevard and The Paseo were zoned “R-5 High Apartments” in 1951 when the basic zoning regulations of the city were revised. Except only at or near its intersections with Troost Avenue, Warwick Boulevard, Main Street and Broadway, mostly business thoroughfares of long standing at such points, Armour Boulevard is entirely zoned R-5 on both sides from The Paseo to its beginning at Broadway, a distance of over a mile. The Paseo, north of the Eddy tract to near 31st Street, some 2600 feet, was zoned “R-5, High Apartments”, on both sides, and south to near 45th Street, more than a mile, was entirely zoned “R-4 Low Apartments”, on both sides, except three corners zoned “C-l Neighborhood Retail Business”, at 39th Street, 44th Street and 45th Street. The Faxon School is located on the west side of The Paseo at 37th Street. The areas adjoining the frontage lots on Armour and The Paseo in all directions for several blocks from the Eddy property were predominantly zoned R-2 to R-5. The shortest distance from the Eddy tract to property zoned for business is west to the corner of Armour Boulevard and Troost Avenue (a business cross-thoroughfare), a distance of about 900 feet. The next nearest lot so zoned is at 35th Street and Woodland, more than a quarter of a mile east of the Eddy tract. Thus there was no property contiguous to the Eddy property that was zoned for business, and none in any direction therefrom closer than at Troost Avenue, about three city blocks.

In March, 1960, Sam and Louise Eddy acquired the property in question. In October of that year Ordinance No. 25574 was introduced in the City Council, the sole subject of which was the rezoning of that property from “R-5 High Apartments” to “C-2, Local Retail Business”. The admitted purpose of the ordinance was to authorize the erection of a gasoline filling station at the site. A prior application by the Eddys directly to the City Plan Commission for such rezoning was, upon opposition, withdrawn.

As required by statute the ordinance was referred to the City Plan Commission for recommendation and on November 28, 1960, after a hearing on the same, the Commission unanimously recommended a denial of the proposed ordinance, stating in part:

“The Commission believes this proposed amendment is ‘spot’ zoning and it should be noted that the ordinance is approved by the legal department ‘as to form only’.
“The amendment represents no comprehensive zoning plan which is the essential basis for zoning and is contrary to a basic premise.of keeping the boulevard system free from commercial encroachment except where precedent for commercial uses have long been established, usually where major commercial streets intersect the boulevard system. A commercial area does lie four blocks to the west at Armour and Troost”.

Notwithstanding the above adverse recommendation by the City Plan Commission, the city council passed the ordinance by a divided vote on December 9, 1960. The Board of Park Commissioners, which supervises the park and boulevard systems of Kansas City, had voted unanimously against the proposed change when first proposed, and upon the passing of the ordinance adopted a resolution on December 14, 1960, characterizing the ordinance as “spot” zoning, which would expose the boulevard system to further encroachment of retail business and cause a deterioration of values of abutting properties. The resolution sought a reconsideration of the ordinance. A request was thereupon made by the Mayor to the Council for a reconsideration. Also the City Plan Commission adopted a resolution criticizing the ordinance as in violation of the spirit, integrity and intent of the basic zoning laws of the city, pointing out that the major traffic-ways zoned for business met the needs for retail business within the community, and that the rezoning of the southwest corner of Armour Boulevard and The Paseo violates the principles of the zoning system and “represents no comprehensive plan or policy toward the development of the city or its boulevard system”.

When the ordinance was submitted to the City Counsellor’s office for approval “as to form and legality”, that office deleted the words “and legality” and approved only “as to form”. On February 17, 1961, the council again, on a divided vote, adopted the ordinance.

Admitted by the stipulation in this case was a survey made in 1956, at the intersection in question in dry, fair weather between the hours of 6:30 to 10:30 a. m. and from 2:30 to 6:30 p. m., which showed that of 3,723 automobiles eastbound on Armour Boulevard, 1,367 made left turns at the intersection with The Paseo, 619 made right turns there and 737 proceeded eastward on 35th Street; and of 6,980 cars approaching from the north on The Paseo, 5,821 proceeded straight south in front of the Eddy property. It was admitted that at the time of the trial the Eddys had pending an application for a permit to erect a gasoline filling station on their property.

Some of the foregoing stipulated facts were also pleaded in the petition. Additional facts were alleged. It is averred that the respondents (plaintiffs) each owned a lot or lots adjacent to or in the vicinity of the Eddy tract; that each of their properties is zoned and used for residential purposes except a tract being used for religious and educational purposes (Congregation Beth Salom) at 3400 The Paseo and a nursing home; that such owners have improved their property in reliance upon the existing zoning restrictions of the city in effect since 1923; that appellants Eddy at the time they acquired their tract at the southwest corner of Armour Boulevard and The Paseo knew it was zoned “R-5 High Apartments”, and that it had been similarly so classified since 1923, and that all of the property in the vicinity was zoned either R-5 or under more restricted classification.

The petition further alleged that the ordinance does not have for its purposes any of the objectives prescribed by Sections 89.020 and 89.040 RSMo 1959, V.A.M.S.; that it is not uniform throughout the district, as required; that it ignores the comprehensive zoning plan in effect in Kansas City since 1923; violates the integrity of the boulevard system of the city, and was designed for the sole benefit of the appellants Eddy with no regard for the owners in the general community; that it increases congestion of the streets, endangers pedestrian and vehicular traffic; increases danger from fires and panic, would permit obnoxious fumes from automobiles, would cause glaring lights and noise from the business activity, would create a hazard to school children in the neighborhood and is arbitrary, unreasonable and discriminatory; that respondents have no adequate remedy at law.

In response to a request for pretrial admissions, appellants Eddy admitted that when they acquired the southwest corner property at Armour Boulevard and The Paseo they knew that it was then zoned R-5; that they knew that under such classification it could not be used for a gasoline filling station, and that all of the neighborhood immediately adjoining the above intersection was zoned in 1923 in residential classification; and that the northwest corner was also vacant but would still be zoned for R-5 uses only. They denied that their property would be suitable for uses prescribed under R-5 or conditionally permissible thereunder, such as a high apartment, a garden-type apartment, an apartment hotel, a clinic for use of doctors or dentists, a convalescent or old folks’ home or for an office building; they denied that their property was undistinguishable from other properties in the vicinity as to classification; denied that the character of the neighborhood had remained materially unchanged since 1923; and denied that a filling station on their tract would adversely affect the values of surrounding properties.

Appellant Kansas City, in effect, similarly answered pretrial interrogatories. Thereafter their respective answers to the petition were filed in which they denied the controversial allegations of the petition. Upon the application of appellants Eddy the case was transferred to Division 12 of the Circuit Court at Independence.

In behalf of the respondents there was substantial testimony and documentary evidence that the proposed change of the zoning of the Eddy property from R-5 to C-2 would depart from the comprehensive plan of the city’s boulevard system and would greatly impair it and would inure solely to the benefit of appellants Eddy. There was testimony that a filling station would create a traffic hazard; that it would depreciate the values of other properties in the vicinity and would cause other owners in the vicinity to demand a similar change in their zoning from residential to business uses, because of the lights, noise and business activity on the Eddy lots. There was testimony that there had been no substantial change in the community sufficient to justify the ordinance, and that the Eddy property could be used profitably under R-5 for conditional purposes other than as a residence.

Many witnesses for respondents testified as to one or more of the foregoing issues. They included the president of the Board of Park Commissioners of Kansas City, which supervises the boulevard and park systems of the city; the chairman of the City Plan Commission, to which are referred proposed changes in zoning classifications for recommendations; prominent real estate owners and operators, experienced in the management, sale and financing of apartments and similar projects; owners of lots in the vicinity of Armour Boulevard and The Paseo, including properties used for educational, religious and residential purposes.

There was much evidence in behalf of the appellants of the effect of the war or racial integration or shifting of population from the north end of The Paseo towards the south; that there had been material change in the vicinity from single-family residences to multi-family homes, apartments and boarding houses; that many residences in the neighborhood had been repossessed; that a few high apartments and office buildings had been erected in the area .at Gillham Road and at Main Street, although attractive; that it would not be feasible to erect an apartment on the Eddy lots because of the type of clientele that would be attracted to it and which could not afford the rental rates desirable. It was testified that a filling station could be financed, would not depreciate the values of other properties in the neighborhood, would ac- ■ commodate the property owners nearby, and would be a great improvement over the vacant residence now located on the site. It was stated that a filling station would not • create a congestion of traffic, but would facilitate traffic because it would afford a • clear view of approaching cars; that no -records show any fatal injuries to children at filling station driveways; that only in the sense that the Eddy property is isolated would the change be “spot zoning”, although it would have been better to have made the change on Armour Boulevard to extend to Troost Avenue. A witness conceded that if the Eddy property is reclassified to C-2, the Eddys could change their minds and, under the provisions of that classification, could erect thereon a tavern, if liquor laws were met, or a pool hall, cocktail lounge, a dance hall, cleaning and dyeing establishment, public garage, laundry, tire and battery shop, transfer and storage business, or used car lots, some of which uses required approval of the Board of Adjustment.

Among the witnesses testifying for the appellants to one or more of the enumerated points, were an owner of a 24-unit apartment at 3717 The Paseo, who was an experienced real estate operator, former Chief Building Inspector of Kansas City, former Acting Building Commissioner, and a graduate consultant in planning and construction, presently engaged under contract with developers of apartment projects, a teacher and practitioner of architecture; also a commanding officer of the Safety Education Unit of Kansas City; a graduate traffic engineer, and others.

The trial court found that some changes in the use of property in the neighborhood of the Eddy tract had been shown, particularly along The Paseo, “but the changes in the use of such properties made since the enactment of the original zoning ordinance and the amendments thereto do not support, justify or authorize the enactment of Ordinance No. 25574”; that the ordinance is “contrary to the terms and provisions of R.S.Mo., Chapter 89, particularly Sections 89.020 and 89.040 thereof, in that the ordinance is not for the purpose of promoting the health, safety, morals or the general welfare of the community and is not made in accordance with a comprehensive plan and designed to lessen congestion in the streets or to secure safety from fire, panic and other dangers or to procure the health and general welfare, or in accordance with other provisions of Section 89.-040, R.S.Mo.; that said ordinance is arbitrary, unreasonable and discriminatory, without any basis for singling out the property of defendants Eddy and constitutes illegal spot zoning”.

The general authority for the enactment of zoning regulations in cities in this state, by the local legislative bodies thereof is provided in Section 89.020 RSMo 1959, V.A.M.S., for the prescribed purposes of “promoting health, safety, morals, or the general welfare of the community”.

Further defining and circumscribing that authority Section 89.040 provides, in part, as follows:

“Such regulations shall be made m accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; * * *. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout such municipality”.

Appellants in their first three points relied on assert, respectively, that the trial court erred in finding (1) that there is not a sufficient change in use in the neighborhood of the Eddy property to support, justify or authorize enactment of Ordinance No. 25574; (2) in finding that such ordinance was not made in accordance with Sections 89.020 and 89.040, nor for the purpose of health, safety, morals and general welfare of the community, and (3) in finding that such ordinance was not made in accordance with any comprehensive plan or designed to lessen congestion of streets or to secure safety from fire, panic and other dangers, or to promote health and general welfare.

We are mindful, as in all cases tried without a jury, that on appeal the review must be “upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless, clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”' Rule 73.01(d) V.A.M.R.; Cranford v. Langston, Mo.App., 356 S.W.2d 581.

At the outset appellants direct our attention to the fact that this court in Allega v. Associated Theatres, Inc., Mo.App., 295 S.W.2d 849, 856, reaffirmed and applied the principle that “unless it appears that the ordinance is clearly arbitrary and unreasonable, the court cannot substitute its opinion for that of the council, or if the question is. reasonably doubtful or even fairly debatable, the court cannot do so”. See also Miller v. Kansas City, Mo.App., 358 S.W.2d 100, 104; Flora Realty & Inv. Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 777; Landau v. Levin, 358 Mo. 77, 213 S.W.2d 483, 485. Those who attack the reasonableness of such an ordinance have the burden of proving it unreasonable. State ex inf. Taylor ex rel., Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762.

As to the changes in the vicinity of Armour Boulevard and The Paseo, there-was, as we have stated, substantial evidence-that following the prevailing war conditions,, many of the residences in the neighborhood had been converted into two and three-family homes and a few high apartments-had been erected, but that the vicinity in all directions and for several blocks from-the Eddy property, had remained zoned solidly for R-2 to R-5 uses; that such changes had occurred prior to the general revision of the city’s zoning regulations in 1951, as stated by witnesses for both appellants and respondents. Luke Choplin, witness for the appellants, was asked: “Q.. How recently was there a predominence of one-family occupancy in this area? * * * A. I would say since 1940. * * *. Q. That all happened prior to 1951 ? A. To my knowledge. Q. You don’t know ■of any change since 1951? A. In respect to conversions, are you talking about? Q. 'That’s right. A. Not especially”. Appellants’ witness Darling was asked: “Q. Do you know of any conversions since 1951? A. I couldn’t point to any; I don’t know”. Their witness Neil Ross said such houses had been turned into rooming houses near his apartment at 3717 Paseo and he was .asked: “Q. Those changes happened before 1951? A. I won’t say that; it might he; but I know it has changed over there”. There was evidence that the building of rthe freeway near the north end of The '.Paseo and the condemnation of lands thereabouts had forced many families to the south. There was also evidence that a few attractive apartment buildings and office buildings had been erected on Armour Boulevard in recent years, at or near business street intersections, as we have pointed out, and that at some points racial integration had approached within a block of The Paseo. We deem such evidence substantial and in accord with the court’s findings.

We next consider whether there was substantial evidence that the ordinance serves the purposes of health, safety, morals and general welfare. It has been ruled that “the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community. Some of the grounds for this conclusion are promotion of the health and security from injury to children and others by separating dwelling houses from territory devoted to trade and industry; suppression and prevention of disorder; facilitating the extinguishment of fires, and the enforcement of street traffic regulations and other general welfare ordinances; aiding the health and safety of the community, by excluding from residential areas the . confusion and danger of fire, contagion, and disorder, which in a greater or less degree attach to the location of stores, shops, and factories”. Village of Euclid v. Ambler, 272 U.S. 365, 391, 47 S.Ct. 114, 71 L.Ed. 303. The same careful consideration is required by the enacting authority to amending ordinances as to the master zoning order. State ex rel. Cooper v. Cowan, Mo.App., 307 S.W.2d 676; Taylor v. Schlemmer, 353 Mo. 687, 183 S.W.2d 913. When passed, however, the ordinance is presumed to be valid. Downing v. City of Joplin, Mo., 312 S.W.2d 81.

We fail to detect any evidence tending to prove that the proposed solitary reclassification of the Eddy property on the boulevard intersection from residential to business use will promote the health or secure the safety or improve the morals of anyone. As to general welfare, there was no evidence of a city-wide need for another gasoline filling station or other retail business to be conducted on the Eddy property. While there was some opinion evidence that a filling station on the corner would be .a convenience to the persons living nearby, there was no showing that the general welfare would be served by it. One witness said a filling station would afford an •open view of approaching cars at the intersection, but the court could reasonably hold that such would not constitute a sufficient benefit to the general public to meet the statutory requirements for the exclusive rezoning of the Eddy property.

As to their contention that the ordinance complied with the statutory requirement that it be “in accordance with a comprehensive plan”, appellants maintain that in view of the rezoning of small tracts on Armour Boulevard from residential to commercial uses at Main Street, Walnut Street and Warwick Boulevard, and the corner tracts at 35th Street and Woodland Avenue, and on The Paseo at 39th, 44th and 45th streets, hereinbefore mentioned, an existing “comprehensive plan” for business uses had thus been created, with which Ordinance 25574 will be in accord. As pointed out, such exceptions are so located as to time and place that they are not substantial proof of a comprehensive plan to zone the area in question for business uses.

This case has a distinguishing element. As we have noted, the only property rezoned by the terms of the ordinance is the corner tract of the appellants Eddy, located centrally in a contiguous and extensive boulevard area used and zoned since 1923 for some form of residential purposes only. Thus the ordinance does not merely enlarge an existing area zoned for business, but creates a business area in a residential zone where none had been before.

Appellants cite and rely greatly on an opinion of this court in Miller v. Kansas City, Mo.App., 358 S.W.2d 100, upholding a rezoning ordinance therein considered. The case is inapplicable here for, as stated therein at page 105: “This ordinance extends an existing business district; it does not create a new one”. Furthermore, the evidence herein tends to show the ordinance in question was “spot zoning” which is held, with a few exceptions not here in point, contrary to the spirit and intent of the zoning law. “Spot zoning” is defined as follows:

“Spot zoning, by which a specific parcel of property is placed in a different zone from that of neighboring property, frequently is accomplished by amendment of a general zoning ordinance, or by other change or modification of zoning laws or regulations; and such an amendment or change is improper where the change in the regulations is unreasonable and discriminatory.
“Ordinarily, a change in zoning regulations involving a single or a very few properties should be made only where new or additional facts, such as a change in conditions, or other considerations materially affecting the merits have intervened since the adoption of the regulations; and whether such a change will be permitted depends on whether the change is reasonably related to the public welfare, and is in accord with the statutory purposes or the general scheme of a comprehensive zoning plan.
“As a general rule, a municipality is without authority to single out one or a few lots in an amendatory regulation and arbitrarily remove therefrom restrictions imposed on the remaining portions of the same zoning district. Accordingly, a reclassification of only the lot or lots of a single person from a residential to a business, commercial, or industrial district, without lawful basis and without reference to the public welfare, is improper spot zoning. An application for such a change should be regarded with suspicion and should be denied unless the change requested will conform to a comprehensive plan and serve one or more of the purposes enumerated in the zoning statute”. 101 C.J.S. Zoning § 91, pp. 843-844-845.

In addition to the foregoing objections to “spot zoning”, is the fact that it often encourages, if it does not necessitate, justifiable efforts on the part of other property owners in the vicinity to seek similar reclassification in order to regain their values or to preserve them, thus tending to depart further from the spirit, design and comprehensive plan of the zoning system.

Appellants’ last point is that the court erred in holding the ordinance arbitrary, unreasonable and discriminatory without any basis for singling out the property of defendants Eddy and constitutes illegal spot zoning. It is our conclusion that the foregoing record adequately supports the trial court in so ruling, and in granting the injunctive relief prayed.

The judgment of the trial court should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion of DEW, Special Commissioner, is adopted as the opinion of the court. The judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: BROADDUS, Presiding Judge.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Plaintiff-Appellant, v. Billie Irene UNDERWOOD, Defendant-Respondent.
    No. 23630.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.
    Fred F. Wesner, Wesner, Wesner & Meyer, Sedalia, for plaintiff-appellant.
    Gayles R. Pine, Pine, Welling, Jones & Lockard, Warrensburg, for defendant-respondent.
   BROADDUS, Presiding Judge.

This action was originally instituted by plaintiff-appellant as a declaratory judgment proceeding seeking to determine its liability or otherwise to defendant-respondent as the widow of Edward Leon Underwood the named insured in an insuring contract which, among other things, provided for a death indemnity to be paid in event of death of insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile provided the death shall occur within ninety days from the date of such accident or within one year after the date of the accident and during a period of continuous total disability.

Following institution of the declaratory judgment action defendant-respondent, Billie Irene Underwood, filed as a responsive pleading to the declaratory judgment action her motion to dismiss, together with alternative answer and counterclaim cause of action pleading the existence of the insuring agreement, its terms and that as the surviving widow of the deceased insured she was entitled to recover a death indemnity amount in the sum of $5000.

On being presented to the trial court, defendant-respondent’s motion to dismiss the declaratory judgment action was denied and following which and by leave of court plaintiff-appellant’s original action seeking a declaratory judgment was dismissed without prejudice and plaintiff-appellant filed its reply and joined issue with defendant-respondent on the counterclaim cause of action.

Trial of the issues as thus joined resulted in a verdict and judgment in favor of defendant-respondent on her counterclaim and .against plaintiff-appellant in the sum of $5000, together with interest thereon in the sum of $431.25.

By her counterclaim respondent pleaded, among other things, that she is the surviving widow of Edward Leon Underwood and that on or about December 14, 1959, appellant issued its automobile insurance policy to the decedent, her husband, under the name of Leon E. Underwood and that by the terms of said policy, which was at all times in full force and effect, appellant agreed to pay to her as the surviving widow, the sum of $5000 in the event of the death of the insured proximately caused from bodily injuries sustained by said insured by accident or automobile collision, while the insured was occupying an automobile, “ * * * a copy of said policy being attached hereto and made a part hereof and all relative terms and conditions of said policy being incorporated herein.” The counterclaim alleges that on the 2nd day of February, 1960 (should read 29th day of January 1960), the deceased was involved in a motor vehicle collision and as a result thereof sustained bodily injuries resulting directly in and proximately causing his death on February 17, 1960, and within ninety days from the date of accident and injury.

All as a result of which and by the terms and conditions in the policy, she alleged she was entitled to recover from appellant the sum of $5000 with interest, penalties and attorneys’ fees.

Appellant’s reply to the counterclaim admitted that respondent is the surviving widow of Edward Leon Underwood; and that on December 14, 1959, it issued the automobile insurance policy described in respondent’s counterclaim to and in the name of Leon E. Underwood and that Leon E. Underwood, is the same person as Edward Leon Underwood, now deceased. The reply then denied all of the remaining allegations of the counterclaim.

To sustain the issues on her counterclaim respondent first produced as a witness Mrs. Mary Catherine Brown who testified that she was the Record Librarian at the Osteopathic Hospital, Kansas City, Missouri, and that as such she had with her and produced hospital records pertaining to hospitalization and treatment of one Edward Leon Underwood.

The hospital records covering the hospitalization of Mr. Underwood, beginning on February 16, 1960, and ending on the following day, February 17, 1960, were marked and received in evidence as respondent’s Exhibit No. 1. Exhibit No. 1 consists of thirty-five separate pages and smaller sheets of paper.

On cross-examination this witness was asked and testified regarding various doctors identified with the Osteopathic Hospital in Kansas City who attended the deceased.

The respondent called as a witness, Mrs. Nel Maness, who testified she was the Medical Record Clerk at the Holden Hospital, Holden, Missouri. The witness produced hospital records, x-ray plates and instruments which were marked as respondent’s Exhibits No. 3 through and to Exhibit No. 16 inclusive.

Exhibit No. 14 was identified by the witness as being the original copy of the hospital record covering the hospitalization of the deceased in the Holden Hospital from the date of his admission on February 2, 1960, until he was removed therefrom on February 16, 1960, by ambulance to the Osteopathic Hospital in Kansas City.

Respondent also offered in evidence Exhibit No. 17, a Missouri Division of Health Standard Certificate of Death.

This Exhibit shows, among other things, the name of the deceased, Edward Leon Underwood, white male, married, date of birth 1-2-37, age 23, date of death, February 17, 1960, cause of death:

“PART I — DEATH WAS CAUSED gy. * * *
“Immediate cause (a) Myocardial failure
“Due to (b) cerebral anoxia.
“Due to (c) cardiac arrest.
•“PART II — OTHER SIGNIFICANT CONDITIONS CONTRIBUTING TO DEATH BUT NOT RELATED TO THE TERMINAL DISEASE CONDITION GIVEN IN PART I (a) :
“Patient was being operated upon for back condition originating from auto accident occurring 1-29-60.”

We will refer later on to these Exhibits.

The respondent, Billie Irene Underwood, testified she is the surviving widow of Leon Underwood, his correct and full name was Edward Leon. During January 1960, he was employed in Kansas City. Their home was in Leeton, Missouri, and Mr. Underwood drove back and forth coming home on Wednesday and Friday nights and was home over the weekend. He was involved in an automobile collision on January 29, 1960. His health prior to January 29, 1960, was good and she never knew of him having any kind of heart trouble. He owned and was driving a Chevrolet automobile on Friday, January 29, and that evening around eight or nine o’clock he arrived home. His back was hurting so he didn’t sleep much. When he did (sleep) he was on the heat pad. He returned to work •on Monday but he came home that afternoon and saw a doctor. After that he went -to the Holden Hospital on February 2, I960 and remained in that hospital as a patient until February 16, 1960, when he was removed to the Osteopathic Hospital in Kansas City. He died on the following day, February 17, 1960.

Mrs. Gladys Irene Underwood testified that she was the mother of Edward Leon Underwood; that prior to January 29, 1960, Edward Leon was in good health and she never knew of him having any heart trouble.

Respondent’s Exhibit 14 constituting the hospital and treatment records of the deceased for his back injury while a patient in the Holden Hospital reflects: That deceased was admitted to the hospital on February 2, 1960, as shown by the history sheet and physical examination, chief complaint being pain in the lumbar and lower dorsal area, reciting that on January 29, 1960, deceased was involved in an automobile collision while driving his automobile, at which time deceased noticed pain in his back which became more intense rendering him unable to work; his condition was diagnosed by the examining physician as traumatic unstable lower back, possible ruptured intervertebral disc. Progress notes of said Exhibit reflect that deceased was placed in traction on the date of admittance to the hospital; the back pain continued and on February 11, 1960, the doctors decided to do spinal fusion on deceased; on February IS, 1960, surgery was performed on deceased for laminectomy between L5 and SI and for spinal fusion; while in surgery deceased suffered a cardiac arrest; his chest was opened and his heart massaged and was brought back to beating in approximately three minutes after the heart and breathing had stopped as shown by the records made by Dr. D. Cunningham; page 9 of said Exhibit reflects that Dr. W. R. Slater on the same day of the operation noted deceased was in a semi-comatosed condition.

Immediately before the operation, deceased’s heart was normal to auscultation, his lungs normal to auscultation; the purpose of the operation was excision of rap-tured intervertebral disc; the operation was hemilaminectomy L5, excision of herniated intervertebral disc; surgery began at 2:55 P.M. on February 15, 1960, and ended at 4:50 P.M.; at 4:27 P.M., during surgery deceased suddenly became cyanotic, pulse became weak and then was not palpable; he was in a prone position at that time. He was then turned on his back and chest cavity opened and cardiac massage started. Heart action and respiration were restored in approximately two to three minutes after arrest was noted; as shown by statements of Dr. J. P. Watt, Anesthetist.

Preoperative diagnosis of deceased’s injury was a protruding lumbar disc and lumbar instability, postoperative diagnosis of deceased’s injury was herniated lumbar disc and lumbar instability. The disc was removed and the spine was prepared for graft by Dr. W. R. Slater who made the diagnosis and performed the surgery.

Deceased never regained consciousness after the operation and had convulsions until his removal from the Holden Hospital on the morning of the following day, as shown by the nurses’ notes.

The death certificate of insured was prepared and signed by Dr. Wesley R. Slater, his attending physician.

At the close of respondent’s evidence appellant offered its motion for a directed verdict, which was denied. Thereupon appellant declined to offer any testimony and elected to stand upon said motion. Appellant now contends that the trial court erred in refusing to sustain the motion.

Briefly, the facts of the case are: Deceased was perfectly healthy and a young and able bodied man immediately prior to January 29, 1960. On that date he was involved in an automobile accident. He sustained an injury to his back causing him pain which became progressively worse necessitating medical care and hospital treatment. His back injury was a ruptured in-tervertebral disc of his spine. Deceased was confined to a hospital for treatment of his back injury from February 2, 1960, to February 17, 1960, when he died. Surgery was performed on the injured portion of deceased’s back on February 15, 1960, and the ruptured disc was removed. In the course of preparation for fusion of his injured back and while in surgery, deceased’s heart stopped beating. In other words, he sustained a “cardiac arrest” as mentioned in the death certificate. Deceased never regained consciousness after surgery on his back. He had periodic convulsions and his death ensued within two days following surgery.

Surgery to correct and alleviate injury does not break the causal connection between the injury and death of an insured. As stated in 29A Am.Jur. Insurance, Sect. 1219, page 362:

“ * * * Thus, death caused by treatment by a reputable member of the medical profession of an injury covered by a policy insuring against death caused by ‘external, violent, and accidental means’, where such treatment is regular, ordinary, and in accordance with the teaching of his profession, is one of the possibilities within the contemplation of the parties to the policy, and where the death results solely from such injury and the treatment thereof recovery can be had. * * * A surgical operation which is proper treatment for a bodily injury sustained by accident or accidental means does not break the causal connection between such means and the death of the insured * *

We are of the opinion that under the holding of our Supreme Court in the case of Wheeler v. Fidelity & Casualty Co., 298 Mo. 619, 251 S.W. 924, the respondent made a submissible case and the trial court committed no error in overruling appellant’s motion for a directed verdict. Among the cases the court cites in support of its ruling in the Wheeler case is that of Sharp v. Missouri Pac. Railroad, 213 Mo. 517, 111 S.W. 1154, wherein appears the following graphic language by the late Judge Lamm:

“The issues presented on this testimony were submitted to the jury by instructions not criticised by learned counsel. It was for the jury to reconcile the conflict in the testimony, if possible, not this court. A trial is not to a judge alone, nor to a jury alone, but to a judge and jury. We cannot say on this record that to attribute the death of Sharp to his injury is a mere guess. If a man, well to-day, is badly injured, and from that time on sickens (with symptoms referable to his injury), and, languishing, finally dies, a disagreement among doctors as to the name of the disease on him at the moment of dissolution does not create a condition from which it can be said that a verdict one way or the other is merely guess work — a wild goose chase into the field of chance and conjecture. Defendant’s theory necessarily has its root in the notion that plaintiff’s evidence was unworthy of belief; for, if there had been no physicians testifying as experts and the jury had been without medical advice, yet plaintiff’s lay evidence showed a cause for Sharp’s pain and suffering, and his visible approach to the grave in the steps he took, commencing at the place and time of his injury and ending there, are rational deductions within the right of a jury in applying common sense to facts. The expert medical testimony was merely advisory, and, because the advice given to the jury by the opinions of the doctors differed, that presents no case for our interference. The mysteries of death are inscrutable and baffle complete scientific solution by mortal man. The sting of death is hidden. The best that can be done is to establish a chain of causation — to show a cause (an injury) from which an effect (death) might reasonably follow. We know, without doctors’ advice, that men have been killed by falls. We know, too, that death may follow weeks of pain and suffering from inward hurts, having their origin in such a fall. This seems to be such a case, provided, of course, the jury believed plaintiff’s testimony. The burden was on the jury under their oaths to hear, weigh, and decide. It was their prerogative to believe or disbelieve. Admitting we have the power, yet we have no disposition to interfere with their verdict.”

And in the instant case, whether or not the injury insured received in the automobile collision on January 29, 1960, was the active, direct and proximate cause of his death occurring 19 days later was for the jury to say.

The judgment is affirmed.

All concur.


author: MAUGHMER, Commissioner.

text:
    Earl N. BOUTELL, Respondent, v. SCOTT’S ROYAL TIRE CO., Inc., Appellant.
    No. 23746.
    Kansas City Court of Appeal. Missouri.
    Feb. 4, 1963.

      William J. Peters, Fred J. Free], Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, for appellant.
    Donald W. Giffin, David Q. Reed, Spencer, Fane, Britt & Browne, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is a suit for damages arising out of alleged negligence and poor workmanship in the repair of an automobile.

On February 10, 1959, Earl N. Boutell, took his 1955 Chrysler Sedan, which was then three and one-half years old and had been driven about 25,000 miles, to defendant Scott’s Royal Tire Co., Inc., Kansas City, Missouri, with instructions to realign the front wheels, the front end, and rotate three of the tires. It is conceded that defendant’s employees did all of these things and that plaintiff paid for it.

Plaintiff testified that he thereafter took the automobile to his farm home near West Line, Missouri, and about 60 miles from Kansas City. He said they used a station wagon at the farm and except for a few trips to Kansas City, the Chrysler was used very little during the next 52 days. On April 3, 1959, plaintiff, being about to go on a trip to New Britain, Connecticut, decided to equip it with two new tires. He again took it to defendant’s place of business, purchased two new tires and defendant installed them on the front wheels. Mr. Boutell stated that he was not a mechanic and that neither he nor any one else, except defendant, had “worked on” the car since April 3rd.

On April 20, 1959, plaintiff, driving the Chrysler, started for New Britain by way of St. Louis. He had proceeded about 60 miles to near Carrollton in a hard rain storm when the accident occurred. As plaintiff described it, he was going about 60 miles per hour when "a tire blew out and I ended up in the ditch”, “after the blowout it turned to my right, the right front wheel, there’s a concrete curb”, “I’d say a foot high — I hit that center and ended up off the road”. Mr. Boutell stated that the Chrysler was equipped with power steering and he had noticed “nothing unusual” in the operation of the vehicle — steering or otherwise — prior to the accident. He said he had not noticed any excessive wear on the front tires, either on the new ones or the old ones. Plaintiff said it took two weeks to repair the car and “by hitting this culvert I tore all the underneath structure out of it”. Speaking of the front tires after the accident, he said: “When I saw them here in Kansas City they were just shreds, both tires, both front tires were just shreds, no rubber on them at all”.

The wrecked automobile was taken to the shop of Allied Motors, Kansas City, Missouri, for repairs. Mr. Paul J. Christ-man, Jr., manager of Allied Motors body repair department, testified. He described his occupation as a “Metal finisher, body man, painter”. He said he had also worked as a body and fender man and had been manager of six different shops in Kansas City. He examined the Chrysler after the accident and described its condition as follows : “The undercarriage or running gear of the car was tore loose from the frame, the frame was bent and distorted, threw the cowl back, the windshield was broken, part of a sign laying in the car where it had gone through the window, the hood was distorted, motor mounts were broken, radiator, of course, was collapsed, the air conditioning, we had to work on it, the right front fender was badly damaged and the left front fender was, of course, out of shape. Everything on the front end was demolished”. Testifying specifically as to the condition of the front tires, Mr. Christ-man said: “Well, the tread was showing, the rubber leaving the casing, it looked like a rag. One tire (right) was completely collapsed”.

This witness said he was familiar with the customs, practices and procedure of the industry in the process of aligning the front wheels and front end of an automobile. He said that first the wheels are adjusted both forward and backward and in and out. The vehicle is put on a machine which automatically lines the front wheels with the rear — “so they will track”. Once the “setting” is made “the wheels are locked into position on the tie-rod” and “you lock it in position by torqueing your nuts down”. This locking “tube is adjustable through a worm type tube, it is threaded on both sides”. “You have squeeze clamps on the end.” Mr. Christman said he examined the tie-rod and squeeze clamps after the accident and found “the locking device on this tie-rod was loose”, “the nut was ready to come off. You could just turn it with your fingers”. He was then asked to keep in mind the condition of the car as he had found and described it, and to assume further that 17 days after new tires had been installed on the front wheels, the right front tire blew out while driving about 60 miles per hour, and then express his opinion as to the cause of the blowout and accident. His opinion was that the blowout caused' the accident and the blowout was caused by “the tie-rod being loose and causing excessive wear. There was a malfunctioning there of the front end alignment”. He stated that if the squeeze clamp nuts were properly tightened it was improbable that they would work loose, but if they were only partially tightened, they were likely to work loose. He said further that power steering lessened the likelihood of the driver noticing defective steering.

The only other witness called by plaintiff gave testimony concerning the rental costs of automobiles. The defendant called just one witness, its manager, Harry D. Schmidt, who inspected the Chrysler after the accident. He said both front tires were “worn completely smooth”.

This cause was submitted to the jury and it returned a verdict for plaintiff in the sum of $1125. The court reduced the ver-diet to $1099.68, the amount prayed for in plaintiff’s petition, and entered judgment for that amount. Thereafter the trial court sustained defendant’s motion for new trial based upon error as to Instruction 2 on measure of damages, and ordered a new trial on the issue of damages only. Neither party has appealed from that particular ruling of the trial court. Therefore, even if the judgment as entered is affirmed, the damage issue will have to he retried.

On its appeal defendant assigns error in the giving of plaintiff’s main instruction numbered One. Three complaints are leveled at the instruction. Defendant says it authorized a plaintiff verdict when there was no substantial evidence to support plaintiff’s theory of negligence and causation. This feature will be considered in reviewing the denial of defendant’s motion for a directed verdict. Defendant asserts further that the instruction did not require the jury to “find facts constituting negligence” nor “the finding of proximate cause.” We believe the instruction is not reversibly erroneous. It required these findings as prerequisites to a plaintiff’s recovery: Ownership of the car by plaintiff, alignment of the front wheels and front end by defendant company, failure to tighten and secure the tie-rod bolts, finding that such failure was contrary to custom, was negligent and not in the exercise of reasonable care, and that it was the direct and proximate cause of the blowout and accident. Although the instruction is not sprinkled with the phrases “if so”, “if you so find”, and “if you further find and believe” (and defendant complains about this) we think it is not misleading and rule the point against defendant. Kelly v. Kansas City, Mo., 335 S.W.2d 159, 163.

We now consider defendant’s other assignment, namely, that the court should have sustained its motion for a directed verdict. Since defendant put on evidence after plaintiff had concluded, we consider only the motion as submitted at the close of all of the evidence. Did plaintiff submit substantial evidence that defendant negligently aligned the Chrysler’s front wheels, and substantial evidence that such negligence, if any, caused the accident?

The submissibility of plaintiff’s case depends primarily upon testimony of his expert, Mr. Christman. Defendant asserts he did not qualify as an expert, that the question was not one for expert opinion, and that because of the time lag between the alignment and accident, plus the fact that the witness only saw the car after the accident, the taking of his opinion on the vital issue was a resort to speculation and surmise.

We think Mr. Christman qualified as an expert in the field and the court did not abuse its discretion in so holding. The broad rules covering the field of expert testimony was set forth in Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 848-849. We quote from the opinion:

“It is well to note, however, that an expert witness is one who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of deducing correct conclusions. 20 Am. Jur., Sec. 783, p. 656. Because of his special knowledge an opinion by an expert witness, ‘when not a mere guess or conjecture but an inference drawn by one of requisite experimental capacity from adequate data, is evidence’ and such testimony is evaluated and measured by the same standards as so-called fact testimony. Scanlon v. Kansas City, 325 Mo. 125, 150, 28 S.W.2d 84, 95. It must be emphasized that the expert’s opinion must not be a mere guess or conjecture but must be based upon facts and adequate data, Vitale v. Duerbeck, 338 Mo. 556, 567, 92 S.W.2d 691, 695; Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437, and his ‘positive opinion must have to support it reasons and testimony which will give it sufficient probative force to be substantial evidence.’ Kimmie v. Terminal R. Ass’n, 334 Mo. 596, 605, 66 S.W.2d 561, 565. The facts upon which an expert’s opinion is based, like the facts sufficient to support a verdict, must measure up to the legal requirements of substantiality and probative force and ‘The question whether such opinion is based on and supported by sufficient facts or evidence to sustain the same is a question of law for this court.’ Hall v. Mercantile Trust Co., 332 Mo. 802, 820, 59 S.W.2d 664, 672; Ambruster v. Levitt Realty & Inv. Co., 341 Mo. 364, 374, 107 S.W.2d 74”.

Appellant invites our attention to Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Inc., Mo.App., 317 S.W.2d 841. It is true that the Westfall case is much stronger on the facts. Within a few minutes and a few miles after defendant’s repair, the tractor tie-rod was observed dragging on the pavement, whereas 70 days elapsed in our case between the repair and the accident. However, in each case expert evidence as to the cause of the accident was received and the physical condition of parts of the vehicle which could have caused the accident as they were observed after the accident, was held to afford a proper foundation to justify the taking of the expert opinion.

In Waldron v. Skelly Oil Co., 363 Mo. 1146, 257 S.W.2d 615, 620, the trial court took an expert opinion that the cause of the gas explosion was a faulty regulator and the jury gave plaintiff a verdict. The Supreme Court reversed and said:

“We have an odd situation in this case. Plaintiff’s evidence when considered in its entirety points unmistakably to a faulty Unitrol as being the cause of the injury for which he asks damages. The defendant Skelly Oil Company is admittedly not liable on that theory. To arrive at the conclusion that a faulty regulator for which defendant would be liable was the cause, we must speculate and draw inferences inconsistent with the facts proven by plaintiff and make surmises that are not reasonable. In such a situation a plaintiff may not recover.”

The “odd situation” as described by the court in the Waldron case does not exist in our case where no suggestion is made and no evidence is offered as to the cause of the accident except the theory of plaintiff.

Some of the facts and data upon which the expert opinion was received and plaintiff’s theory of negligence is predicated, are affirmatively admitted and some are not disputed. Defendant’s only witness, its manager, Harry D. Schmidt, testified as to the realignment, installation of the new tires and that after the accident the two new tires were worn down to the cord. There was no evidence disputing plaintiff’s evidence that after the accident the squeeze clamp and nuts holding the tie-rod were loose, and no evidence, opinion or otherwise, denying the expressed opinion of Mr. Christman, that such conditions would quickly cause the tires to wear down and likely lead to a blowout. While the question may be close, we believe, viewing the case as a whole, that plaintiff presented substantial credible evidence, was entitled to a submission to the jury and therefore the motion for directed verdict was properly overruled.

No additional or further assignment of error having been made, the judgment is affirmed. However, in accordance with the trial court’s order for new trial on the issue of damages alone and from which order no appeal was taken, the cause is remanded for a new trial upon that issue alone.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


text:
    BANK OF IONIA, Appellant, v. BANK OF ELDON, Respondent.
    No. 23696.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.
    O. E. Brown, Lamm, Barnett, Crawford & Barnes, Sedalia, for appellant.
    Harry H. Kay, Robert J. Quigley, Eldon, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Bank of Ionia, sued the defendant, Bank of Eldon, for selling cattle on which plaintiff held a chattel mortgage and converting or applying the proceeds to the payment of its own indebtedness. The case was tried without a jury and resulted in a judgment for defendant. Plaintiff has appealed.

Most of the material facts are not in dispute. On September 28, 1959, Rex Decker and Harold Decker, brothers, residing in Morgan County, Missouri, borrowed $3900 from defendant bank to finance the purchase of 15 Holstein cows. They gave their promissory note and chattel mortgage of even date and in like amount as security. The due date of the note was six months later. The chattel mortgage covered the 15 cows and was immediately filed in the office of the Recorder of Deeds for Morgan County.

At the end of each succeeding six month period and on March 28, 1960, September 30, 1960, and March 30, 1961, these same makers made, executed and delivered to defendant bank a new promissory note for this indebtedness and a new chattel mortgage on the 15 cows. The borrowers had made small payments from time to time and consequently these renewal notes became progressively less in amount. The balance of the indebtedness due at the time defendant sold the mortgaged property was $2,716.84.

Each of these renewal chattel mortgages was immediately filed in the recorder’s office. None was acknowledged before a notary public. When a renewal note and chattel was taken by defendant bank it marked the preceding note “paid”, the preceding chattel mortgage was canceled and released and both documents were returned to the makers. There was no writing on any of the renewal mortgages specifically declaring it to be in renewal of a pre-exist-ing mortgage.

On October 24, 1960, the said Rex Decker and Frances Decker, his wife, signed and delivered their promissory note in the amount of $1595 to plaintiff bank. They also executed a chattel mortgage on the same 15 cows and delivered it to the Bank of Ionia as security. On January 6, 1961, this obligation was renewed by giving a new note and chattel. This last mortgage was acknowledged before a notary public. Both mortgages were duly filed in the recorder’s office. At the time of trial it was agreed and established that the balance due on this debt was $1384.34.

In July, 1961, defendant bank repossessed the 15 cows and their increase, sold the same for $2,797.84, and marked the Decker indebtedness as “paid”. It is conceded that this selling price was fair and reasonable.

Harold Decker did not testify at the trial. Rex Decker testified that after he and his brother mortgaged the cows, his brother got sick and he, Rex, “took over the cows”. He said that he told Mr. Schnabel, cashier of the Bank of Ionia, at the time that bank took its mortgage that the cows were already mortgaged. Mr. Schnabel denied that he knew or was told the cattle were mortgaged when he took the mortgage for the plaintiff bank.

The trial court made written findings of fact and conclusions of law. It concluded (1) Plaintiff’s evidence is not sufficient to show that Rex Decker and Frances Decker were the owners of the 15 cows when they executed plaintiff’s mortgage; (2) Defendant's unacknowledged chattel mortgage on said cows dated September 30, 1960, and filed in the recorder’s office was a prior lien to the chattel mortgage given to plaintiff on January 6, 1961; (3) The note and chattel mortgage to defendant on March 30, 1961, was in renewal of the September 30, 1960 note and chattel and was in renewal of the original debt and defendant did not release its lien, which was prior to the plaintiff’s lien, by accepting a renewal note and chattel, and by marking the renewed note “paid” and by releasing the renewed chattel mortgage; (4) An unacknowledged chattel mortgage when duly filed is notice to the world of the lien created by it and defendant’s unacknowledged chattel, duly filed, constituted notice to plaintiff of its prior lien to the cattle; (5) The court finds the issues for defendant and plaintiff’s petition is dismissed at its cost.

It is our duty on appeal to review or hear this case de novo, be it an action at law tried by the court or a suit in equity. Bank of Kennett v. Clayton et al., 241 Mo.App. 487, 245 S.W.2d 678, 681, and cases there cited. We reach our own decision from the facts as presented to us, but where the evidence is conflicting, accord great deference to the trial court, who had the advantage of hearing and observing the witnesses.

Actually, plaintiff on appeal specifically makes only one assignment of error, namely: “Chattel mortgages, as well as other mortgages, must be acknowledged to be valid against third parties, and the court is in error in his declaration of law”. While the last clause of this assignment is rather indefinite, we shall, nevertheless, discuss the issue which the parties primarily disputed, that is, which chattel mortgage was the valid prior lien. Section 443.460, V.A.M.S. reads in part as follows: “No mortgage * * * of personal property hereafter made shall be valid against any creditors * * * or unless the mortgage * * * shall be filed in the office of the recorder of deeds of the county where the mortgagor * * * resides”. Some states by statute require acknowledgment as a prerequisite to filing or recording, which brings into being “notice to the world” of the lien. But in Missouri it is not required that a chattel mortgage be acknowledged in order to be valid or in order to be filed with the recorder, and when so filed, it is notice to subsequent lienholders, even though they had no actual notice. Fitzgibbon Discount Corporation v. Windisch, Mo.App., 271 S.W.2d 226.

The ultimate and decisive question here presented is whether plaintiff’s or defendant’s chattel was the prior lien. On October 24, 1960, when plaintiff took the promissory note and chattel mortgage executed by Mr. and Mrs. Decker, and on January 6, 1961, when it took a renewal, the chattel mortgage of defendant on the same 15 cows was duly on file in the recorder’s office. So far as plaintiff is concerned, it had constructive notice of the existence of defendant’s mortgage regardless of whether it had actual notice. In order to decide this case it is not necessary to determine if Rex Decker did or did not tell plaintiff’s cashier Schnabel about it. The Bank of Eldon’s mortgage was duly filed, plaintiff had constructive notice and unquestionably at the time, its lien was subject to defendant’s prior lien. Did the fact that defendant thereafter on March 30, 1961, (while plaintiff’s mortgage was on file) took a renewal note and mortgage and marked the prior note “paid” and released the older chattel, legally result in or have the effect of making plaintiff’s mortgage a prior lien? We believe not.

In 14 C.J.S. Chattel Mortgages § 294, p. 931, we find this statement:

“Renewal mortgages. Since, as appears infra § 339, the giving of a new note and mortgage in renewal of, or in substitution for, the one originally given does not discharge the lien of the original mortgage, but the lien of the renewal mortgage attaches as of the date of the original mortgage, the acceptance by a prior mortgagee of a renewal note and mortgage in satisfaction of the original note and mortgage does not affect the right of his mortgage to priority over a mortgage executed subsequent to the original mortgage but prior to the renewal one, even though the renewal was made without the consent of the holder of the later mortgage”.

This court in Drovers’ Live Stock Commission Co. v. Wilson County Bank of Fredonia, Kan., 95 Mo.App. 251, 68 S.W. 967, 969, said:

“It is true that the bank’s two loans to Ellis, which were ahead of Smith, were afterwards renewed, and new mortgages given to secure them; but we do not consider that a renewal in that way destroyed the priority of the original claim in a suit of this nature, which plaintiffs allege is based on the very equity and right of the matter as disclosed by the facts hereinbefore set forth”.

The appellant relies and invites our attention to the case of Farkas v. Third Nat. Bank of Albany, 133 Ga. 755, 66 S.E. 926, 26 L.R.A.,N.S., 496. In that case the defendant, instead of taking a renewal chattel mortgage, accepted warehouse receipts and at pages 926 and 927, the court said:

“If the new security which the bank accepted had been a mortgage instead of a pledge of the warehouse receipts, the case would be free from difficulty. The rule in such case has been well put by McClellan, J., in New England Mortgage Security Company v. Hirsch, 96 Ala. 232, 11 So. 63. Said he: ‘While it is the law that the mere taking of a new note and mortgage, the debt evidenced by the former and the property embraced in the latter being the same, will not discharge or displace the lien of an existing mortgage, * * * ’ ”.

At the time plaintiff’s debt and chattel mortgage came into being there was a valid, existing prior lien held by defendant on the same 15 cows. It is the duty of a mortgagee to ascertain that the mortgagor, has a good title to and owns the property he undertakes to mortgage. Peper v. American Exchange Nat. Bank in St. Louis et al., Mo.App., 205 S.W.2d 215; Goodman v. Nichols, 238 Mo.App. 802, 188 S.W.2d 666; Bank of Kennett v. Clayton et al., supra. Therefore, at the inception of plaintiff’s mortgage it was subject to and second to defendant’s mortgage and lien on the same property. Should the act of defendant in renewing its loan by taking a renewal note for the same debt and a renewal mortgage on the same property make plaintiff’s loan or mortgage first and prior, thereby relegating defendant’s older and valid security to a second position? We believe this would not be so under either law or equity. Plaintiff had constructive, if not actual, notice of defendant’s chattel covering these 15 Holstein cows. It suffered no loss in position, grade or classification of its security, because defendant took a renewal note and chattel mortgage. Accordingly, defendant is not liable to plaintiff in conversion or otherwise for its action in repossessing and selling the property described in its chattel mortgage for the purpose of paying the debt.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: HUNTER, Judge.

text:
    The STATE of Missouri at the Relation and to the Use of Dr. Robert Lee GIBSON, Potosi, Missouri, Appellant, v. The MISSOURI BOARD OF CHIROPRACTIC EXAMINERS, Dr. Arch G. Campbell, Member and Chairman of Said Board, Dr. Lial J. Shaw, Member of Said Board, and Dr. Durham, Secretary and Member of Said Board, Dr. Eugene Silver, Member of Said Board, and Dr. Dudley Ruopp, Member of Said Board, Respondents.
    No. 23733.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellant.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondents.
   HUNTER, Judge.

This is an appeal from a judgment of the Circuit Court of Cole County in an action for certiorari to review the action of the State Board of Chiropractic Examiners, respondents, in revoking the license of relator, Robert Lee Gibson, a chiropractic doctor.

On February 25, 1961, an action was commenced against relator by the State Board of Chiropractic Examiners by the filing and serving of a complaint and notice of hearing in which relator was charged with having on January 23, 1961, in the City of Potosí, Missouri, “illegally exceeded the authority granted to you under said license (chiropractor’s) in that you prescribed medicine to one Lonnie Ray Callahan, a child of five years of age, and administered said medicine to Lonnie Ray Callahan by placing a quantity of liquid into his ear and prescribed and furnished other medicines to be taken internally by the said Lonnie Ray Callahan, in the presence of his mother, Mrs. Lynn Callahan and Mrs. Charlotte Henry, all of which is illegal and in violation of Section 331.010 RSMo. 1949.”

A hearing on this complaint was held in Jefferson City on March 29, 1961, at which relator appeared with his attorney. As a result of the hearing the Board found:

“(3) That on or about the 23rd day of January, 1961, the Respondent did, at his office in the City of Potosí, County of Washington, State of Missouri, undertake to treat Lonnie Ray Callahan, at that time five years of age, for an ailment which represented to Respondent as an earache; that Respondent, at the time and place aforesaid, prescribed medicine to the said Lonnie Ray Callahan and administered medicine to Lonnie Ray Callahan by placing a quantity of liquid into his ear.

“(4) That, at the time and place aforesaid, Respondent prescribed and furnished to Lonnie Ray Callahan other drugs and medicines by giving them to Mrs. Lynn Callahan, mother of Lonnie Ray Callahan, there present; and that respondent instructed Mrs. Lynn Callahan as to the administration of said drugs and medicines.

“(5) That respondent charged a fee of two dollars and fifty cents ($2.50) for his treatment of Lonnie Ray Callahan on or about the 23rd day of January, 1961, and that Respondent, through his agent, accepted payment of that fee from Mrs. Lynn Callahan;

“(6) That at no time during his treatment of Lonnie Ray Callahan on or about the 23rd day of January, 1961, did Respondent practice on said Lonnie Ray Callahan the science and art of palpating and adjusting by hand the movable articulations of the spinal column for the correction of the cause of abnormalities and deformities of the body.”

The Board then made certain conclusions of law including

“(1) That Respondent’s treatment of Lonnie Ray Callahan as described in Findings of Fact 3 through 6 was in excess of the authority granted to him as a chiropractor licensed under the laws of the State of Missouri;

“(2) * * * That Respondent’s acts of prescribing and administering drugs as described in Findings of Fact 3 and 4 are in violation of Section 331.010, RSMo. 1959, and, as such, constitutes illegal or immoral actions as proscribed by Section 331.060(2), RSMo. 1949;

“(3)’ That Respondent’s acts as described in Findings of Facts, 3 through 6, constitute deception or fraud in the practice of chiropractic as proscribed by Section 331.060 (2), RSMo. 1959; '

“(4) * * * That Section 331.060, RSMo. 1959, authorizes the State Board of Chiropractic Examiners to revoke the license of a chiropractor, if upon a hearing, it is proven beyond a reasonable doubt to the Board that the Respondent is guilty of immoral or illegal action or in any way guilty of deception or fraud in the practice of chiropractic;

“(5) * * * The Board concludes that, by reason of the Findings of Fact set out above and each of them, the Respondent is guilty of immoral or illegal action or guilty of deception or fraud in the practice of chiropractic; and that for such immoral or illegal action and for such deception or fraud in the practice of chiropractic on the part of Respondent, and each of the acts aforesaid, the license and renewal certificate of the Respondent should be revoked.” (Emphasis ours.)

The Board ordered the revocation. On certiorari, the Circuit Court of Cole County, Missouri, affirmed the Board’s order. This appeal followed.

The State Board of Chiropractic Examiners is a duly created legal entity, consisting of five persons. Section 331.090 RSMo 1959, V.A.M.S. (All future statutory references are to V.A.M.S.) The board, rather than its individual members, is the real party in interest and is a necessary party. It is the law that where a legal entity or quasi public corporation is the real party, the fact that its component members are named parties does not vest the Supreme Court with jurisdiction under Article V, Section 3, of our State Constitution, even though such members are state officers. State ex rel. Gehrs v. Public Service Commission of Missouri, 338 Mo. 177, 90 S.W.2d 390; State ex inf. Wallach v. Schneider’s Credit Jewelers, Mo.App., 243 S.W.2d 125. Hence, jurisdiction of the appeal lies in this court.

On this appeal four contentions of error are presented. Appellant first contends there was not sufficient competent evidence in the record to support the charge and finding that he illegally exceeded the authority granted him under his chiropractor’s license “in that you prescribed medicine and administered medicine * * * by placing a quantity of liquid into (Callahan’s) ear and prescribed and furnished other medicine to be taken internally * * * in violation of Section 331.010.”

The undisputed evidence is that on January 23, 1961, Mrs. Viola Callahan took her then five year old son, Lonnie Ray, to appellant’s office in Potosí, Missouri. The boy was crying because of pain in his left ear. Appellant examined the child’s ear with an instrument that had a light in it, and stated his diagnosis as a mastoid ear. He then announced to the mother and aunt, Mrs. Henry, both of whom were present throughout the entire visit, that he was going to put drops in the boy’s ear to kill the pain. He put three drops into the boy’s ear, using an eye dropper. Appellant then gave the boy two packages of pills and directed the mother to “give him one of the white ones and one of the yellow ones ⅜ ⅜ ⅜ every three hours”. He also gave the mother a bottle of ear drops, telling her to “put three of them in at a time and if that doesn’t do, put five drops in his ear.” According to both the mother and the aunt, at no time in his treatment of Lonnie Ray did Dr. Gibson massage any portion of the boy’s body, and touched him only while he was looking in the boy’s ear and when he administered ear drops. There was testimony by appellant and his wife that appellant did give the boy a neck adjustment. Appellant then charged $2.50 for treatment of Lonnie Ray Callahan, and that amount was subsequently paid to him in cash by Mrs. Callahan, who received a receipt for it. Appellant at the hearing stated with reference to the ailing ear, “it has been customary for me to treat those conditions * * *. We had a complete course of eye, ear, nose, and throat, complete semester of it (in school) * * * and the type of treatment is the same as I did for the child other than I also used a cervical adjustment on the child.” Appellant stated that although the boy was in pain there was no emergency existing; that there was another chiropractor, two osteopaths and two medical doctors in Potosí.

Upon chemical analysis the glycerin ear drops also contained a small amount of ben-zocaine, a chemical which, when applied to the surface of the skin, acts as a local anesthetic, and also small amounts of alcohol, water, chloroform and ether in an oil base. Appellant stated the yellow tablets were “placebos”, or a neutral substance, and the white tablets were Vitamin B-l tablets —that “a placebo is a blank little tablet which * * * you use it for psychological effects” ; and that the reason he gave the boy the placebo pills was to induce him to take the vitamin pills. He stated the vitamin pills were for nutritional purposes and that there was no relationship between the vitamins and the otitis media but that the boy looked like he could use some vitamins. On cross-examination appellant stated his diagnosis was otitis media, or inflamation of the middle ear; that he was trained in treating such conditions in his chiropractic studies, and that his text books said to use a solution of phenolglycerin, but his treatment was glycerin or any other oil solution.

Section 331.010RSMo 1959, reads:

“Defining practice of chiropractic

“The practice of chiropractic is hereby defined to be the science and art of palpating and adjusting by hand the movable articulations of the human spinal column, for the correction of the cause of abnormalities and deformities of the body. It shall not include the use of operative surgery, obstetrics, osteopathy, nor the administration or prescribing of any drug or medicine-The practice of chiropractic is hereby declared not to be the practice of medicine and surgery or osteopathy within the meaning of chapter 337, RSMo., and not subject to the provisions of said chapter.”

Appellant’s reasoning in connection with his first charge of error is that the ear drops, vitamins and pills he prescribed and administered are not “the administration or prescribing of any drug or medicine” as set out in Section 331.010. He contends the benzocaine in the ear drops being only about ½5 of the quantity required for medical effect and which could have come from contamination of the bottle does not make the ear drops “medicine” ; that the vitamins, ear drops and placebo pills are items obtainable by the public without prescription and are not medicine. He urges the view that a chiropractor should not be prevented “from doing such things as placing a splint on a broken bone, advising the soaking of a swollen or inflamed part in hot water, applying ointment or a bandage to a burn, or using any other commonly accepted remedies, not requiring any particular art, science or skill, and commonly used in the treatment and relief of minor ills. * * * These materials are certainly not such a part of the medical profession as to constitute practice of medicine through their use, recommendation and application * *

Appellant’s self serving view expressed above is not sound, and is contrary to the plain terms of the statute, Section 331.010. Appellant overlooks the fact that the legislature, having in mind the necessary qualifications and training involved, in its wisdom and for the protection of the public has carefully limited the scope of a chiropractor’s license to “the science and art of palpating and adjusting by hand the movable 'articulations of the human spinal column, for the correction of the cause of abnormalities and deformities of the body.” It has specifically denied to chiropractors license to administer or prescribe any medicine or drug or to practice medicine generally.

This is not the case of a housewife, parent or other individual applying medication. This is the case of a professional man, a doctor of chiropractic, as a part of his profession and for which he makes a charge, examining a patient, making a diagnosis and prescribing and administering ear drops, vitamins and pills. The relationship of doctor of chiropractic and patient existed throughout and what was done was purportedly performed as a part of that relationship and not on a nonprofessional basis.

It is our view that the ear drops, vitamins and pills prescribed and administered as they were by a doctor of chiropractic, in his professional capacity to his ailing patient for which he expected to make a charge for his professional services, are “medicine” within the plain meaning of Section 331.010 above quoted.

It is well known that many medicines are obtainable by the public without the necessity of having a prescription, and the fact that an item is obtainable by the public without prescription does not mean that it is not medicine or a drug. See, State v. Jones, 237 Mo.App. 714, 164 S.W.2d 85; 17A Am.Jur., Drugs and Druggists, Sec. 3, page 510. For some of the cases holding items to be drugs or medicine although they could be purchased without prescription, see State ex rel. Missildine Co. v. Jewett Market Company, 209 Iowa 567, 228 N.W. 288 (aspirin) ; State v. Baker, 229 N.C. 73, 48 S.E.2d 61 (tonics and laxatives) ; State v. Bresee, 137 Iowa 673, 114 N.W. 45 (tissue food); Board of Pharmacy of State of New Jersey v. Hutchin, 10 N.J.Misc. 641, 160 A. 214 (essence of peppermint and sweet spirits of niter) ; People v. Arthur, 1 Cal.App.2d Supp. 768, 32 P.2d 1002 (hydrogen peroxide); United States v. Grayce, Inc., D.C., 126 F.Supp. 6 (Vaginal suppositories); United States v. 48 Dozen Packages, Etc., 2 Cir., 94 F.2d 641 (gauze bandages); United States v. 3 Cartons, Etc., D.C., 132 F.Supp. 569.

The Oxford English dictionary defines “medicine” as “any substance or preparation used in the treatment of disease; also medicaments generally.” “Medicine” is defined in 57 C.J.S. Medicine page 1042, “ * * * the word signifies a drug, indicating nothing more than a remedial agent that has the property of curing or mitigating diseases, or is used for that purpose, and in its ordinary sense, as applied to human ailments, it means something which is administered, either internally or externally, in the treatment of disease or the relief of sickness. * * *

“There are many things, not in themselves medicines, but which may be put to a medicinal use, and when so used they may become medicines. * * * The fact that the substance employed as a remedial agent may have value as a food, and a tendency to build up and restore wasted or diseased tissue, will not deprive it of its character as a ‘medicine/ if it is administered and employed for that purpose. * * * ” See, also, Stribling v. Jolley, 241 Mo.App. 1123, 253 S.W.2d 519, 525; State v. Jones, supra; Harris v. State, 229 Miss. 755, 92 So.2d 217(8).

In 17A Am.Jur., Drugs and Druggists, Sec. 6, page 511, it is stated, “* * * whether a vitamin preparation is a drug or a food is ordinarily a question of fact. The same substance may be a drug under one set of circumstances, and not a drug under another. The test is whether it is administered or employed as a medicine.”

In Culver v. Nelson, 237 Minn. 65, 54 N.W.2d 7, 11, the court stated, “That vitamins are used internally for the cure, mitigation, treatment, or prevention of disease in man cannot well be subject to serious doubt. Even plaintiff’s experts agree that a vitamin deficiency is or may be a disease and that when vitamins are prescribed for the treatment of such a disease it is as a drug.”

In Harris v. State (Miss.), supra, a chiropractor was found guilty of practicing medicine without a license. His defense was that the injection used was only vitamins, and that they were injected to correct a vitamin deficiency. In ruling that defendant came within the statutory definition of practicing medicine the court said, “ * * * a substance which is administered for the purpose of restoring vitamin deficiency and which has the effect of restoring wasted tissue is a remedial agent, and one for the prevention of disease, and, therefore, one akin in character to medicine and one within the statutory definition of practicing medicine.”

The purpose of the ear drops was to alleviate the pain and to permit and aid the ear to heal, and were prescribed and administered in a professional capacity by appellant to his patient. As we view it, even the so-called “placebo” pills were administered and prescribed as a medicine. So far as the patient and his family knew these pills were a part of the treatment and were received for that purpose. If the pills were used for psychological effect, or to make the patient feel better, or to aid in the treatment generally of the boy their professional prescription and administration may be considered to be that of a medicine.

Appellant next contends the administration of the medicine under the described circumstances is not ground for the revocation of a chiropractic license as not being one of the specific grounds for revocation named in the statute. However, we are unable to find any merit in this contention. Section 331.010 defines the practice of chiropractic and in effect forbids the administration or prescribing of any drug or medicine as a part of that practice. Section 334.010 provides, “It shall be unlawful for any person not now a registered physician within the meaning of the law to practice medicine * * * or to profess to cure and attempt to treat the sick and others afflicted with bodily or mental infirmities * * * except as herein provided.” Chiropractic practice as defined in Section 331.010 is of course permitted to chiropractors for Section 334.155 excepts chiropractors “licensed and lawfully practicing their profession within the provisions of chapter 331, RSMo.” Section 334.250 provides those who violate Section 334.010 are guilty of a misdemeanor. Section 331.060 makes it the duty of the board to investigate all charges of “immoral or illegal actions” with respect to chiropractors, “and if upon such hearing it shall be proven beyond a reasonable doubt to the board, that the accused is guilty of such immoral or illegal action * * * or in any way guilty of deception or fraud in the practice of chiropractic * * * or is guilty of any criminal or illegal actions, the board shall revoke his license.”

It is clear that the practice o-f medicine by a chiropractor beyond that per-' mitted him under Section 331.010 — to engage in “the science and art of palpating and adjusting by hand the movable articulations of the human spinal column, for the correction of the cause of abnormalities and deformities of the body” — is illegal and is a sufficient ground for the revocation of his chiropractic license. The administration and prescribing of any drug or medicine by a chiropractor in his professional capacity to a patient is an unauthorized act and beyond the scope of his chiropractic license, hence is illegal within the meaning of Section 331.050. The legislature in its wisdom has prohibited such conduct and in the public interest has made it a ground for revocation of the chiropractic license.

Appellant’s third contention is that the conclusions of law upon which the revocation is made are in the disjunctive, and do not reveal whether the revocation is based upon administration of medicine, or because he was guilty of deception or fraud in charging a fee and not giving a chiropractic adjustment, or possibly some other act not charged or proved. This contention also is not meritorious. A fair reading of the charge upon which appellant was tried and the findings of fact and conclusions of law as made by the Board clearly shows the basis of the board’s action in revoking the license was appellant’s action in unlawfully exceeding his authority granted him as a licensed chiropractor by prescribing and administering drugs to Lonnie Ray Callahan at the time, place and in the manner described. While the Board also characterized such acts, as “immoral actions” that “constitute deception or fraud in the practice of chiropractic” these characterizations may be treated as mere surplusage and not necessary to the sustaining of the charge. In so saying we do not intend to indicate that appellant’s acts were erroneously characterized, but only that there is no need in this opinion to examine them in that regard, a sufficient ground for revocation already having been established by the evidence and declared by the Board. Appellant also says the findings and conclusions of the Board are broader than the charge. These findings and conclusions are sufficiently responsive to and in accordance with the charge as is readily discernible upon their examination.

In conclusion, the evidence is such as to permit the State Board of Chiropractic Examiners to find beyond a reasonable doubt that appellant, as charged, unlawfully exceeded the authority granted him under his chiropractic license. State ex rel. St. Louis Public Service Co. v. Public Service Commission, 365 Mo. 1032, 291 S.W.2d 95. Having so found, that Board had the statutory power to revoke appellant’s chiropractic license.

We have examined all the contentions of error made by appellant in his brief and have found them not meritorious. The judgment of the circuit court, affirming the Order of the Board, should be and is affirmed.

All concur.

      . Section 331.070 provides, “The board shall have power to determine all matters herein placed within its jurisdiction, and its determination shall be final and conclusive, except that such determination may be reviewed by the circuit court of the county in which the state board of examiners has its principal office, by writ of certiorari.”


author: GRIFFIN, Justice.

text:
    EASTWOOD MODEL MARKET, Petitioner, v. The STATE of Texas et al., Respondents.
    No. A-9224.
    Supreme Court of Texas.
    March 20, 1963.
    Bruce Waitz and V. H. McFarland, San Antonio, for petitioner.
    Will Wilson, Atty. Gen., Austin, Sam Dane, Asst. Atty. Gen., for respondents.
   GRIFFIN, Justice.

This is a suit brought by petitioner, as plaintiff, against respondents, as defendants, seeking a refund of an alleged overpayment of contribution payments by plaintiff to the Unemployment Compensation Fund. The cause was tried without a jury. At the end of the testimony and argument of counsel, judgment was rendered in favor of defendants. The trial Judge filed no findings of fact nor conclusions of law, and none were requested. On appeal by plaintiff, the Court of Civil Appeals affirmed the trial court’s judgment in 359 S.W.2d 294.

Plaintiff is contending in this court that although it was a duly incorporated corporation, in truth and in fact it was only the “alter ego” of one Carl C. Waitz, its sole stockholder, who, at the times herein involved, had an earned and recognized Unemployment Experience rating of 0.5%, to which the plaintiff was entitled instead of the 2.7% rating applied against plaintiff by the Texas Employment Commission. The difference in the rating amounts to the refund for which suit was brought. We hold that our Unemployment Compensation Act contains no provision whereby a corporation operating as the “alter ego” of an individual is automatically entitled to have the unemployment experience rating of the individual.

There is little dispute as to the facts. Up to November 27, 1954, Carl C. Waitz was engaged in the grocery business in San Antonio, Texas, under the trade name of Nolan Red & White Store. This business was a sole proprietorship, wholly owned and operated by Carl C. Waitz.

Carl Waitz was a successful and efficient grocer. About November, 1954, Sweeney & Company had leased a location in a new shopping center, known as Eastwood Village, being developed in San Antonio. Sweeney, desiring to move Waitz to a larger store, found a purchaser for the stock of goods and fixtures of Nolan Red & White Store. Carl C. Waitz sold out his grocery business, including the trade name, to this purchaser. Sweeney required that Waitz form a corporation to own and operate the business.

Plaintiff opened for business in May of 1955, and it had as a part of its employees, five to eight of the department heads which Waitz had when he operated Nolan Red & White store. In addition, plaintiff had a large number (40-50) of other employees who had never previously been employed by Waitz.

The pertinent parts of the Texas Unem* ployment Compensation Act (Art. 5221b, Vernon’s Texas Civil Statutes) will be referred to by the designations given them at the time of this controversy, rather than by their designations under the Act as amended to date of this writing.

There is no controversy that Waitz was an employing unit while he operated under the name of Nolan Red & White Store. The plaintiff was also an employing unit as defined in the Act. Sec. 19(e).of the Act as pertinent to our inquiry, defines an employing unit as any individual or type of organization, including any partnership, association, trust, estate, joint stock company,' insurance company, or corporation, whether domestic or foreign, which has in its employ one or more individuals performing services for it within this state.

Carl Waitz, so long as he should do business as. an individual had the right to his earned experience rating unless he transferred that rating to another “employing unit” Under the terms of the Act.

The facts we have set out above demonstrate that plaintiff corporation, Eastwood Model Market, was not doing business as Carl Waitz, an individual. Carl Waitz did not transfer his individual experience rating to plaintiff.

Sec. 7(c) (7) of the Act provides the only means whereby Waitz could transfer his rating to the plaintiff corporation. Plaintiff admits that it is not entitled to Waitz’ experience rating as a successor employing unit. Therefore, plaintiff is not entitled to have the same experience rating as Carl Waitz, individually, was entitled to receive. Not having shown that it was entitled under the law to Carl Waitz’ individual experience rating, plaintiff was properly charged under Sec. 7(c) (1) with a contribution rate of 2.7%.

Plaintiff relies upon certain language contained in the cases of State v. Ratliff (1947, Tex.Civ.App.), 200 S.W.2d 645, writ refused, and on the concurring opinion in Raymond Pearson Motor Co. v. Texas Employment Commission (1952, Tex.Civ.App.), 247 S.W.2d 429, writ refused, n. r. e.

The Ratliff case involved the construction of the statutory definition of “employer” under certain provisions of the Act. That case specifically states it does not base its’ opinion on ownership of a majority of stock in a corporation. The decision was based on the fact that the defining statute expressly provided that if one employing unit is indirectly controlled by some other employing unit then the two units shall be treated’ as a single employing unit.

The concurring opinion in the Raymond Pearson case was written by its author with the hope that the Supreme Court would reconsider its former opinion and join the dissent of Associate Justice Smedley in State v. Dallas Liquor Warehouse No. 4 (1949), 147 Tex. 495, 217 S.W.2d 654; and Texas Unemployment Compensation Commission v. General Engineering Corp. (1949), 14T Tex. 503, 217 S.W.2d 659.

. When the Pearson case reached this, court, in spite of the plea of the concurring, opinion that the law be changed, the court,, with Justice Smedley then a member, refused to change its former holding and noted’ on the Application for Writ of Error, “Refused, n. r. e.”

Plaintiff relies on some out-of-state cases, which it regards as in point. We do not choose to follow'these cases. We have carefully read our Act, and we find no provision therein authorizing a corporation operating as the “alter ego” of an individual to have the individual’s unemployment experience rating without a transfer, in accordance with the terms of the Act, from such individual. We find no authority whereby we can pierce the corporate veil of plaintiff in order to give it credit for Waitz’ unemployment experience rating.

The judgments of both courts below are affirmed.