text:
    Richard A. LAMAR, Appellant, v. FORD MOTOR COMPANY and Harlow O. Coffield, Respondents.
    No. 51878.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Don M. Jackson, and John B. Moritz, Kansas City, for appellant. Jackson, Wade & Barker, Kansas City, of counsel.
    John M. Kilroy, John R. Caslavka, Kansas City, for respondents. Shughart, Thomson & Kilroy, Kansas City, of counsel.
   WELBORN, Commissioner.

Action for $100,000 actual, and $100,000 punitive, damages for assault and battery. Trial court dismissed petition on motions of defendants. Plaintiff appeals.

In his petition plaintiff described himself as chairman of the union bargaining committee at the defendant Ford Motor Company’s plant in Claycomo. Defendant Harlow O. Coffield is described as a general foreman of Ford. The petition alleged that plaintiff devoted full time to performing, on behalf of the members of the union, his duties as chairman of the bargaining committee. The petition charges that, on August 31, 1963, defendants, acting through Harlow, assaulted and beat plaintiff, inflicting severe injuries.

Defendant Coffield filed a combined motion to dismiss and general denial. The motion to dismiss charged that the matters upon which the petition was based were “within the exclusive jurisdiction of the Workmen’s Compensation Law * *

Defendant Ford filed a separate motion to dismiss, alleging that the cause of action was based upon an incident at Ford’s plant; that at the time and place in question both plaintiff and Ford were subject to the Workmen’s Compensation Law of the State of Missouri; that the Workmen’s Compensation Law provides the sole remedy of plaintiff, and, therefore, the court had no jurisdiction over the alleged cause of action. Ford attached to its motion as an exhibit a copy of a letter from the Division of Workmen’s Compensation, showing that, although plaintiff had previously rejected the Workmen’s Compensation Law, he had subsequently withdrawn his rejection.

Plaintiff filed “Opposition to Defendant’s, Ford Motor Company’s, Separate Motion to Dismiss,” a combination memorandum of argument and authorities and a denial of the allegations • of Ford’s motion. The document stated that Ford’s motion attempted to controvert the allegations of plaintiff’s petition, designed to show that he devoted his full time to representation of the union members. It argued that a motion to dismiss on grounds not appearing on the face of plaintiff’s petition would lie only when the factual basis of such grounds was not controverted and that Ford’s defense of the Workmen’s Compensation Law coverage could be raised only by answer, “thereby making an issue of fact for the jury, * * The document denied the allegations of Ford’s motion and prayed that the motion be overruled.

Plaintiff also moved to strike from defendant Coffield’s motion and answer the portion thereof relying on the Workmen’s Compensation Law, charging that Coffield was not entitled to the protection of that law.

Subsequently Ford filed, in support of its motion, an affidavit of its attorney setting out portions of its collective bargaining agreement. The portions set out include the recitation of the general intent of the agreement of “attaining peaceful, orderly relations and efficient, uninterrupted operations * * *; ” and the general responsibility of Ford in the management of the plant operation, including the right to “hire, lay off, assign, transfer and promote employees, and to determine the starting and quitting time and the number of hours to be worked; * * Also set out was a provision giving the company “the sole right to discipline and discharge employees for cause, * * Included were provisions giving the employees “representatives on Company time * * Representatives are required to be “in the regular employ of the Company, or on approved leave of absence, for at least one year immediately preceding his designation to such position * * The agreement refers to “Both Full- and Part-Time Representatives.” Without expressly acknowledging that plaintiff was a full-time representative, the affidavit apparently concedes such to be the case, inasmuch as it sets forth provisions for hours on company time and compensation of full-time representatives. The agreement provides that representatives shall “be on Company time only for the same number of hours as the employees in such Unit are normally scheduled to work * * A full-time representative is to be paid at the rate he was receiving at the time of assuming his duties. “He shall be deemed to be an active employee of the Company for the purpose of applying the vacation plan.”

The affidavit alleged that plaintiff had a job classification entitling him to be paid at the rate of $2.79 per hour while working as a union committeeman; that he was paid at that rate for the period of time which included the date of the occurrence mentioned in plaintiff’s petition. The affidavit set out that plaintiff had filed two workmen’s compensation claims for injuries received while employed by defendant Ford and before he became a union committeeman.

The affidavit alleged that plaintiff “was subject to the discipline of the Ford Motor Company and bound to abide by its rules and regulations and under such aspects of control of (Ford) as its employee as are shown by the above set out provisions of said Union Agreement and to the extent to which (Ford) reserved and set out its management rights as employer under the terms and provisions of said Trade Union Agreement.”

Subsequently, on March 4, 1965, plaintiff filed an application for disqualification of Judge Rooney and a counteraffidavit to the affidavit in support of Ford’s motion to dismiss.

The counteraffidavit, by plaintiff’s attorney, recited that plaintiff was a full-time representative of the union and was not under direction or control of defendant Ford; that plaintiff was the sole judge of the hours he would be present on Ford’s premises, acted solely for members of the union, took no orders from Ford; that plaintiff had the right to be present in the plant at any time of day or night when any member of the union was working; that Ford had no right to compel plaintiff to perform any work of any kind for it; that plaintiff was the sole judge of his hours of work and was accountable only to the union; that Ford did not have authority to discharge plaintiff while chairman of the union bargaining committee and that plaintiff could be removed from that office only by vote of the membership of the union; that his duties while on defendant Ford’s premises consisted of going from department to department conferring with other union representatives enforcing the terms of the contract on behalf of the union and its members; that plaintiff was subject to removal from office by the union should he be or become subject to the influence of Ford; that, while the union agreement required that he be paid by Ford, he was considered an employee under the agreement only for vacation plan purposes; that the provision for payment of union representatives by Ford had been obtained as the result of an extended strike and extended negotiations; that Ford had no right of control, supervision, appointment, designation or selection of the chairman of the bargaining committee; that the injuries received by plaintiff did not arise out of Ford’s business of manufacturing automobiles, but resulted from an assault committed upon plaintiff, while plaintiff was acting on behalf of the union.

On March 4, 1965, Judge Rooney entered an order sustaining defendants’ motions to dismiss. On March 12, plaintiff filed a motion to set aside the order of dismissal and for reconsideration of the motions to dismiss. Among the grounds stated was that Judge Rooney had no jurisdiction to enter the order of dismissal in view of the pending motion for his disqualification.

On April 2, 1965, the parties filed a stipulation for a change of venue to the Platte County Circuit Court. The stipulation was approved and the cause ordered transferred.

On June 18, 1965, the judge of the Platte County Circuit Court heard arguments on plaintiff’s motion to set aside the dismissal. On June 25, the affidavit of plaintiff was filed in the Platte County Circuit Court, in support of his motion for reconsideration of the order of dismissal.

Plaintiff’s affidavit set forth that he was sole Chairman of the Unit Committee for the entire union membership at the Ford plant; that as such he had the right to enter and leave the Ford premises twenty-four hours per day; that he devoted full time to union affairs and was not required to perform any duties for Ford while serving as chairman; that he had no obligation to report and did not report his activities or his presence on, or his leaving, the Ford premises to anyone connected with Ford. It stated that plaintiff would leave the Ford plant and the Kansas City area on union business for extended periods of time; that during such absences he designated an acting Chairman of the Unit Committee and merely notified Ford of his choice. It further stated that, pursuant to an umpire’s ruling, he was required only to “ring in” on any day he came on the Ford premises in order to be entitled to compensation from Ford. The affidavit set forth the circumstances of the incident out of which his claim arose, alleging that at the time he was on the Ford premises he was acting as full-time Chairman of the Unit Committee and that the assault by Coffield arose out of a discussion between plaintiff and Coffield of a union member’s grievance.

Subsequently, a supplemental affidavit by Ford’s attorney was filed, setting forth the terms of the collective bargaining agreement concerning the first stage grievance procedure. The procedure authorized the aggrieved employee either to take up the matter directly with his foreman or with the district committeeman who shall discuss the matter with the foreman. Plaintiff’s affidavit alleged that in the discussion with Coffield which produced the assault, he was, as authorized, acting in lieu of an absent district committeeman.

Ultimately, the judge of the Platte County Circuit Court concluded that the motion pending before him was a motion for rehearing which, under Civil Rule 78.04, V.A.M.R., was considered overruled ninety days after having been filed on March 12, and that he had no authority to act on the motion after the expiration of that time. This appeal, pursuant to special order, followed.

Plaintiff contends here that his petition did not show that he was a Ford employee and that such issue could not be resolved on the basis of uncontroverted facts and, therefore, the trial court improperly sustained Ford’s motion to dismiss. Ford’s position is that applicability of the Workmen’s Compensation Law is among the “other matters” which, under Civil Rule 55.31, V.A.M.R., may be raised by motion to dismiss, the grounds for which may be supplied by affidavit under Rule 55.31(b). Ford contends that its affidavit and affidavits filed on behalf of plaintiff provided “a complete and adequate record of the essential testimony that could be elicited on trial to show the occurrence and injury arose out of and in the course of employment of appellant, leaving nothing to be controverted, and * * * that by reason of the union contract provisions the activity of appellant at the time necessarily promoted harmonious relations of employer and its employees * * *, leaving no doubt that appellant was the employee of * * * Ford Motor Company and that the occurrence arose out of and in the course of his employment.”

This court held, in Roberts v. Epicure Foods Company, 330 S.W.2d 837, that the defense of applicability of the Workmen’s Compensation Law could not be properly raised by a motion to dismiss under § 509.-290, RSMo 1949, the statutory predecessor of Civil Rule 55.31. Ford contends that the decision in Roberts was based upon the inadequacy of the record for determination, upon motion to dismiss, of the defense raised. Here, according to Ford, the court had before it all of the matters' which might have been presented at an evidentiary hearing and, therefore, the matter was properly determined on the motion to dismiss.

Without attempting to decide whether or not an issue such as that here involved might he “capable of unassailable proof on motion” (see Committee Note and Comment to Civil Rule 55.31, 2 V.A.M.R., pp. 170-171), we are of the opinion that no such proof favorable to Ford of the issue is here presented. In support of the trial court’s ruling, Ford largely ignores the counteraffidavits on behalf of plaintiff except insofar as Ford considers them to support its position. Plaintiff’s counteraffidavits raise a serious question as to the nature and extent of Ford’s control or right of control over his activities. Our cases have recognized the control factor as important in ruling the existence of an employer-employee relationship under the Workmen’s Compensation Law. Coy et al. v. Sears, Roebuck & Co., 363 Mo. 810, 253 S.W.2d 816, 818(1); McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149, 156(5-7); Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 912(2-6).

Plaintiff’s counteraffidavits reveal, at least, that plaintiff’s status may not be determined solely on the basis of the facts that he had to be an employee to be selected as a union representative, that the occurrence took place on Ford’s premises, that it took place during working hours, that plaintiff was performing duties required in his union capacity, that he was paid by Ford, that his pay was determined by the scale of the employees in his Unit, that Ford was under the Workmen’s Compensation Law, that plaintiff had rescinded a prior rejection of that law, and that under the union contract he was considered an “actual employee” of Ford for the purpose of the vacation plan, these being the facts which Ford relies upon in support of the trial court’s action. In other words, this is not “an action groundless on the uncontroverted facts” but it involves a real controversy of a vital fact issue concerning the merits of plaintiff’s claim. Therefore, it was not subject to be dismissed on the grounds asserted in Ford’s motion. Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526, 530 [4, 5]; Pogue v. Smallen, Mo.Sup., 285 S.W.2d 915, 917 [2]; McLaughlin v. Neiger, Mo.App., 286 S.W.2d 380, 384-385 [6], [7]; Roberts v. Epicure Foods Company, supra; Burke v. City of St. Louis, Mo.Sup., 349 S.W.2d 930, 932 [4].

Ford relies strongly upon the authority of Gerard v. American Can Company, 32 N.J.Super. 310, 108 A.2d 293, and Kennedy v. Thompson Lumber Co., 223 Minn. 277, 26 N.W.2d 459. Those cases involved claims for workmen’s compensation by union shop stewards. In both cases, the claimant sought compensation for injuries sustained in the performance of his duties as a union steward. The employer resisted the claim, not on the basis that the steward was not its employee, but on the basis that the claim did not arise out of service to the employer.' In both cases, the employer’s defense was rejected. However, in both cases, the employee involved was only a part-time union representative, with regular duties to perform in the operation of the employer’s business. Gerard was a machine operator who left his machine on the production line to investigate a union member’s grievance. Kennedy was a ripsaw operator who was injured when he left his employer’s premises in order to make a telephone call in an effort to avoid a strike. In Kennedy, the court stated: “We recognize that a shop steward is primarily a representative of the union. We do not intend to establish any precedent which will be used in support of the claim that all injuries suffered by shop stewards while acting as such are com-pensable.” 26 N.W.2d 463. The issue presented in those cases differs from that here and we find the decisions inapplicable to the situation in this case.

Ford also suggests that its motion asserting the applicability of the Workmen’s Compensation Act deprived the circuit court of jurisdiction to hear the matter further and caused the issue to become one for determination under the administrative procedure of the Workmen’s Compensation Law. In support of this position, Ford relies upon Sheen v. DiBella, 395 S.W.2d 296, a 1965 decision of the Kansas City Court of Appeals. We do not consider that case authoritative in this situation. Sheen involved the effect, in proceedings before the Industrial Commission, of a prior judicial determination, in a common law action, that “the plaintiff * * * and the defendant * * * were under the Missouri Workmen’s Compensation Law * That determination was made after a hearing on the issue, raised by defendant’s answer, and plaintiff’s action for damages was dismissed. Subsequent proceedings before the Industrial Commission resulted in the conclusion that plaintiff was a volunteer at the time of his injury, not an employee. On appeal from the Industrial Commission finding, claimant asserted that the judicial determination was res judicata of the issue of coverage of the Workmen’s Compensation Law. The Kansas City Court of Appeals denied the res judicata argument. The court employed some language indicating that once a factual issue of applicability of the Workmen’s Compensation Law was raised in the common law action, the circuit court was deprived of jurisdiction to proceed further “until such fact questions were decided by the Commission, which body had exclusive original jurisdiction thereof; * * *." 395 S.W.2d 304.

This language would apply the doctrine of “Primary Jurisdiction” in common law actions where the defense of application of the Workmen’s Compensation Act was raised. In the large number of reported cases in which our appellate courts have considered, in common law actions, the defense of application of the Compensation Law, we find none, prior to Sheen, in which the possibility of application of the primary jurisdiction doctrine was raised. See Roberts v. Epicure Foods Company, supra; Wooten v. Youthcraft Manufacturing Company, Mo.Sup., 312 S.W.2d 1; Daniels v. Krey Packing Company, Mo.Sup., 346 S.W.2d 78; Musielak v. International Shoe Company, Mo.App., 387 S.W.2d 217; Anderson v. Benson Manufacturing Company, Mo.Sup., 338 S.W.2d 812; Warren v. American Car & Foundry Co., 327 Mo. 755, 38 S.W.2d 718; Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W.2d 119; McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149; Metzinger v. H. A. Dailey, Inc., 358 Mo. 689, 216 S.W.2d 480; McDaniel v. Kerr, 364 Mo. 1, 258 S.W.2d 629.

In Bean v. Piedmont Interstate Fair Association, 4th Cir., 222 F.2d 227, the defense of coverage of the Workmen’s Compensation Law was raised, along with the contention of exclusive jurisdiction of the Workmen’s Compensation Commission to determine the issue. In passing on this contention, the court stated (222 F.2d 234): “ * * * The statute does not require, as a preliminary to the action at law, a finding by the Commission as to the refusal or neglect of the employer to comply, and no case has been found, notwithstanding diligent search of experienced counsel, in which the question has arisen under the corresponding provisions of the Workmen’s Compensation statutes of other states. In our opinion it is unreasonable to suppose that the legislature intended to favor the defaulting employer and to impede the injured employee by subjecting him to the delay and expenses incident to a preliminary inquiry by the Commission, particularly as the question of non-compliance either by refusal or neglect is one of fact easily within the competence of a common law court.

“Numerous cases have upheld the right of an injured employee to maintain a suit at common law against an employer who has failed to obtain insurance as required by the Workmen’s Compensation laws. See Buhler v. Maddison, 109 Utah 267, 176 P.2d 118, 168 A.L.R. 177; Neff v. Baiotto Coal Co., 361 Mo. 304, 234 S.W.2d 578; Jones v. Brink, Fla., 39 So.2d 791; Nantico v. Matuszak, 322 Mich. 644, 34 N.W.2d 506; Hartford Acc. & Indmn. Co. v. Christensen, 149 Tex. 79, 228 S.W.2d 135; Larson, Workmen’s Compensation Law, §§ 67.21, 92.10. The question now under consideration was not raised in these cases and this uniform treatment of the problem is significant. In the last mentioned case the main point for decision by the Texas court was whether or not the employee was covered under a policy the employer had with the insurer. The court held that the employee was not covered and that he could proceed against his employer as at common law; and there was no suggestion that the court was not competent to determine the question of coverage in the first instance.”

The most closely analogous situation in which we have found the doctrine applied was in Somma v. United States, 3rd Cir., 283 F.2d 149. There a federal employee sued for personal injuries under the Federal Tort Claims Act. The defense was interposed that plaintiff’s exclusive remedy was under the Federal Employees’ Compensation Act. Applying the doctrine of primary jurisdiction, the court ordered the tort action stayed until the plaintiff had pursued his remedies under the Federal Employees’ Compensation Act.

The scope and effect of the primary jurisdiction doctrine have been described as follows:

“ * * * Where a claim is originally cognizable in the courts and the enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative agency, the judicial process is suspended pending referral of such issues to the administrative agency for its views. Under the primary jurisdiction doctrine the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal (1) where the question demands the exercise of administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal; (2) to determine technical and intricate matters of fact; and (3) where a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered.” 2 Am.Jur.2d, Administrative Law, § 788, p. 689.

The doctrine had its origin in cases involving the reasonableness of railroad rates and charges. In Texas and Pacific Railway Company v. Abilene Cotton Oil Company, 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, generally considered the case in which the doctrine originated, the court held that a shipper who sued at common law to recover amounts paid in excess of what it claimed were reasonable rates was required to seek redress originally before the Interstate Commerce Commission. The court stated:

“* * * [I] f, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that, unless all courts reached an identical conclusion, a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question. Indeed, the recognition of such a right is wholly inconsistent with the administrative power conferred upon thé Commission, and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed. Equally obvious is it that the existence of such a power in the courts, independent of prior action by the Commission, would lead to favoritism, to the enforcement of one rate in one jurisdiction and a different one in another, would destroy the prohibitions against preferences and discrimination, and afford, moreover, a ready means by which, through collusive proceedings, the wrongs which the statute was intended to remedy could be successfully inflicted.” 204 U.S. 440-441, 27 S.Ct. 355.

The doctrine has been widely applied by the federal courts and has been accepted by the state courts (see 3 Davis, Administrative Law Treatise, § 19.01 et seq., p. 1). The appellate courts of this state have had occasion to apply the doctrine principally in matters involving the Public Service Commission Act. In State ex inf. Shartel ex rel. City of Sikeston v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394, 401 [15], 89 A.L.R. 607, the court suggested that the question of public necessity for the continuation of electrical service was “a matter peculiarly within the jurisdiction of the Public Service Commission,” and, therefore, was not for consideration in an action to oust utility. In State ex rel. and to Use of Cirese v. Ridge, 345 Mo. 1096, 138 S.W.2d 1012, the court held that exclusive primary jurisdiction lay with the Public Service Commission of a utility’s complaint that an electrical company was operating without a certificate of convenience and necessity and that the court had no jurisdiction of a suit by the utility to enjoin such operation. See also State ex rel. Taylor v. Nangle, 360 Mo. 122, 227 S.W.2d 655; State ex inf. Barker v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. and to Use of Kansas City Power & Light Co. v. Buzard, 350 Mo. 763, 168 S.W.2d 1044.

Those cases, although based to a large extent upon the statutes relating to the powers of the Public Service Commission, reflect the type of situation to which the primary jurisdiction doctrine is properly applicable. Involved are questions of administrative expertise, technical factual situations and regulatory systems in which uniformity of administration is essential.

The question presented in this case is of a different nature. No element of administrative agency expertise is involved. Long before the Workmen’s Compensation Act, the courts were determining whether or not an employer-employee relationship existed and they continue to do so in many situations, involving the application of principles determinative of the issue here presented. Furthermore, the Workmen’s Compensation Act is not a regulatory measure in which discretionary authority has been conferred upon the administrative body. The discretionary nature of the authority of the Interstate Commerce Commission and the Public Service Commission is such that judicial restraint is necessary if uniform administration is to result.

Although in Texas and Pacific Railway Company v. Abilene Cotton Oil Company, supra, the court did ignore a statutory provision for continuation of existing remedies, we do not find such absolute inconsistency (see T. I. M. E. Inc. v. United States, 359 U.S. 464, 473, 79 S.Ct. 904, 3 L.Ed.2d 952) between the grant of authority to the Industrial Commission and the continued exercise by the courts of jurisdiction over common law actions as would require us to ignore the rather clearly expressed legislative intention that the administrative procedure is not intended to be exclusive whenever the possibilty of application of the act is suggested. Such intention may be found in § 287.440, RSMo 1959, V.A.M.S., fixing the time at which the period of limitation of a claim for compensation begins to run “where recovery is denied to any person in a suit brought at law or in admiralty to recover damages in respect of bodily injury or death on the ground that such person was an employee and the defendant was an employer subject to and within the meaning of this chapter, *

We conclude that defendant’s motion did not call for the application of the primary jurisdiction doctrine and that the circuit court has jurisdiction to determne, upon proper presentation of the issue, whether plaintiff was an employee of defendant Ford. •

As for defendant Coffield, his motion was based upon the applicability of the Workmen’s Compensation Act. Our conclusion as to that contention of defendant Ford would rule Coffield’s motion. However, Coffield, in any event, was not entitled to rely upon the defense of applicability of the Workmen’s Compensation Law. He does not deny the allegation of the petition that he was a foreman of Ford. Even if plaintiff was a Ford employee, Coffield, as a fellow employee, would not be able to rely upon the applicability of the act to plaintiff’s claim against Ford as a defense to plaintiff’s claim against him. Gardner v. Stout et al., 342 Mo. 1206, 119 S.W.2d 790, 792 [3]; Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 917 [6]; Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497, 502 [8,9].

In view of our conclusion regarding the ruling on defendants’ motions and in view of the change of venue by stipulation of the parties, we do not reach the question of the effect of the motion for his disqualification upon the authority of Judge Rooney to rule the motions.

The judgment is reversed and the cause remanded with directions to overrule defendants’ motions to dismiss and to reinstate plaintiff’s petition.

HOUSER, and HIGGINS, CC, concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Annie DUBOISE, Dewey D. Presson, Bobby Duboise, a Minor, by and Through his Next Friend and Natural Guardian Annie Duboise, and Charles Duboise, a Minor, by and Through his Next Friend and Natural Guardian Annie Duboise, Plaintiffs-Appellants, v. RAILWAY EXPRESS AGENCY, INC., a Corporation, Voss Truck Lines, Inc., a Corporation, and, Sanford O. Pettigrew, Defendants-Respondents.
    No. 51562.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.

      Murphy & Roche, Byron A. Roche, St. Louis, and James Q. Brown, Clayton, for appellants.
    Carter, Fitzsimmons and Brinker, Paul E. Fitzsimmons, Clayton, for respondent, Railway Express Agency, Inc.
    F. X. Cleary, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondents, Voss Truck Lines, Inc., and Sanford O. Petti-grew.
   BARRETT, Commissioner.

On December 6, 1961, Golden Duboise, age 45, driving a 1956 Buick sedan, left Mesa, Arizona, en route to his wife’s family in Granite City, Illinois. Two days later, on December 8, 1961, between 4:00 and 5:00 o’clock in the afternoon his Buick automobile was involved in a collision with one and the plaintiffs claim two trucks on U. S. 66 east of Waynesville, 0.2 miles east of Highway 66 and Route V in Pulaski County. Golden left Mesa at 9:30 or 10:00 o’clock on December 6 and sleeping sitting up in the automobile at intervals had driven night and day more than 1600 miles. In the Buick with Golden in the front seat were his wife’s uncle, Dewey Presson, his son Bobby, age 20 when the case was tried beginning on February 15, 1965, and in the back seat Charles Du-boise, age 16 in 1965, and Golden’s wife Annie, age 38. It began snowing in Oklahoma and by the time the party arrived at Waynesville “it was more snow and sleeting all mixed together” and as to the condition of the pavement Golden said, “I would call it snow and slush.” U. S. Highway 66 at the point of collision is a four-lane pavement divided by a dirt and grass median strip. Golden traveling east at a speed of 30 miles an hour says that he had followed a green truck “with two things in the corners of the doors” (red diamonds) for some distance and as it started up a long hill he “intended to go around it” and increased the speed of his Buick to about 35 miles an hour and then he said, speaking of the green truck (presumably a Railway Express Agency truck), “It was snowy and slushy, I would call it, and when I got beside it, it came over on one side and hit my car and went wacking, and it hit again, two times, that quick.” He said that his car was “hit on the side near the back” and then “went out of control and went to the left and crossed this here grass (the median strip) over into the other lane and turned around and come back to this grass and mud, and that big truck hit it.” This was his way of saying that as his Buick went out of control, crossed the median strip and skidded around in the wrong traffic lane a Voss truck traveling west struck the left side of the Buick knocking it back and across the median strip.

Lex Channing Smith, the driver of a Railway Express Agency truck, from his rearview mirror, saw the Buick “fishtailing” on the slick pavement and “it looked like a semi-truck or something was crosswise of the road behind me.” But Lex heard no metallic sound, as of a truck and automobile touching, felt no jolt or movement of his truck. In short the plain implication of his testimony was that there was no contact or touching, let alone a collision, of his truck with Golden’s Buick. The Voss equipment, a tractor-trailer driven by Sanford O. Pettigrew, age 52 with 28 years’ experience operating heavy equipment, traveling west at 25 miles an hour, he says, on “very slick” pavement, downgrade, saw Golden’s Bttick “come across the center median” before he could apply his brakes: “I couldn’t avoid it at all,” and the left front fender of his tractor struck the skidding Buick in the left side. Everyone in the Buick sustained some injury, some severe and some slight.

The occupants of the Buick, except Golden, filed separate suits to recover damages for their personal injuries. The defendant-respondents are Railway Express Agency, Voss Truck Lines and its driver, Petti-grew. The four separate actions were consolidated and tried in the City of St. Louis. At the conclusion of a four-day trial a jury returned a verdict in favor of all three defendants and the plaintiffs have appealed. It is necessary to an understanding of the determinative issue involved upon this appeal to thus briefly detail the background circumstances.

Undeniably the out-of-control Buick crossed over the median strip into the wrong traffic lane and was struck by the Voss tractor-trailer as it proceeded west in its proper traffic lane. But whether the Buick at a speed of 50 miles an hour “fishtailed” on the slick pavement and went out of control due to Golden’s negligent conduct as the defendants claimed and as the jury found or whether it was lightly but twice sideswiped by the Railway Express truck and thus knocked out of control as the plaintiffs claimed was the doubtful, hotly contested and probably determinative issue. It may have been determinative because aside from the mere fact of whether there was a collision the issue also involved a finding as to the credibility of virtually all the witnesses.

In 1961 Railway Express Agency “had a run” from the post at Fort Leonard Wood to meet trains “No. 4 and 9” at Newburg. Lex Smith was the “chauffeur-clerk” on that run. On December 8, 1961, he left Fort Leonard Wood for Newburg, a distance of 26 miles, at 3:45 driving a green 1961 “Chevrolet cab over cowl” truck. It was snowing, the pavement was “packed ice and snow,” and Lex was traveling at a speed of 25 miles an hour in the outermost eastbound traffic lane and 50 or 60 feet ahead there was a vehicle and following him “some cars.” He testified, “(t)here was a car approximately 50, 60 feet behind me and when he pulled out, I presume to pass or something, anyway when I saw him he was what I designate ‘fishtailing;’ the back end was going backwards and forwards” in the left or inside traffic lane. All this Lex saw from his left rearview mirror. Then Lex said, after he saw this automobile (Golden’s Buick), “I had to watch the road. You glance in your mirror and then look forward, because the road was slick.” But he said that he heard no sound, felt no jolt or movement of his truck, but continued on up the hill and when “I glanced in my mirror again, and it looked like a semi-truck or something was crosswise of the road behind me.” Lex drove on up to the top of the hill and stopped ISO to 200 yards east and walked back to the Voss truck and Golden’s Buick and before leaving the scene gave his name to a highway patrolman. He did not report the occurrence to his office or superiors in Kansas City and did not inspect his truck for any marks or damage until 20 or 30 days later when his Kansas City office asked for a report. In this Lex was corroborated by an army sergeant and his wife who were traveling east on the highway en route to their home in Rolla. They saw the Buick at a speed of 40 to 50 miles an hour “fishtailing” on the slick pavement, saw it cross the median strip and saw the Voss truck hit it. But they saw no other vehicle within “fifty feet east of this Duboise (Golden) automobile.”

On the other hand, while at the time of the occurrence Golden was unable to identify the “green truck” as being a Railway Express Agency vehicle he definitely stated that as he pulled out to pass the truck it “came over” and hit his Buick twice. He could only identify the truck as “green” and described two objects, red diamonds, painted on its rear doors. Likewise his wife in the rear seat described a green truck ahead of them that “had red diamonds on the back doors” and she said, “We had got out about, I would say, a little more than halfway up on the truck when the truck just came over next to the side of our car and bumped the front fender up near the door, and then it just jumped back and bumped the back of the car somewhere near the back.” The sons, Charles and Robert, also testified to the bumping collision of a green truck with red diamonds.

The plaintiffs’ witnesses said that there were no dents in the chrome or any marks of green paint on the Buick’s right side prior to the collision. Photographs of the Buick taken on January 17, 1962, revealed, according to plaintiffs’ witness, “at a point thirty and one-half inches above the ground, there was a chrome molding strip (at the rear wheel), a little dirty, but it had a tiny green mark. * * * This is the strip, with a little smudge, not quite as clear, but it is still there. * * * There was just a little spot of green paint.” A highway patrolman saw the marks of green paint on the Buick “immediately after this accident” and again on January 17 when the photographs were taken.

No one at the scene of the accident examined the Railway Express truck and the highway patrolman did not mention it in his report. On cross-examination of the patrolman, incidentally, Railway Express counsel introduced in evidence a number of photographs of green trucks belonging to several companies with various red objects painted on the vehicles. On direct examination Lex Smith said that 20 or 30 days after the occurrence his boss in Kansas City called and said “that we were liable to be sued on account of this accident and wanted me to make out an accident report on it.” And for the first time he examined the left side of the truck and “There was nothing on it, sir.” There were no scratches, bumps or dents and there were no facilities at Ft. Leonard Wood to repair or repaint trucks. On cross-examination, after his memory had been refreshed from a deposition it developed that Lex had once said that two or three days after the accident he had inspected the truck “Because I told the boys at the office, back at the office about what had happened out there on the road and we all went out to see if I had caused any trouble, to see if there was any marks or scratches on the truck and there were none.” (Emphasis supplied.) When asked whether anyone was present when he inspected the truck he said, “Yes, I believe all the boys that worked there at that time.” He said that all of them were not working- there in 1965 and when specifically asked “Were Mr. Smith (his brother E. L. Smith), Mr. Nickels, Mr. Ruthenberg with you when you inspected that truck?” he said, “No, sir.” These three men he said were yet in the employ of Railway Express. It was further developed that in a deposition there had been this question and answer:

“Q. Now, you and Ruthenberg and your brother, E. L. Smith and Wilber Nickels, inspected this truck that you were driving some two or three days after this accident to see if there was any damage on it? Is that right?
“A. Yes, sir.”

Subsequently on cross-examination there were these questions and answers:

“Q. Can you tell this jury when you and your brother and Mr. Ruthenberg looked at the left side of your truck in relation to the date of that report?
“A. Well, I don’t remember it was, or that date, but I think it was after I made this report (to his office).
“Q. On January 30th * * *
“A. But I am almost certainly it was on the same day, that afternoon.
“Q. Which is January 30th, 1962; is that correct?
“A. Yes, sir.”

On February 24, 1962, because it was “too small for the route,” the truck Lex Smith was driving on December 8, 1961, was removed to Kansas City, inspected again — no dents found — and in August 1962 was repainted.

All this is the background context for the plaintiffs’ assignment of error here that the trial court “committed error prejudicial to plaintiffs when it refused to allow plaintiffs’ counsel to argue to the jury proper inferences the jury could draw from defendant REA’s (Railway Express Agency) failure to produce witnesses not equally available to plaintiffs, namely Smith, Ruth-enberg and Nickels, who were REA’s employees, still in REA’s employ and who had inspected REA’s truck at a time in dispute after the occurrence in which plaintiffs had been injured, as, under the particular circumstances of this case, these employees were persons with knowledge which vitally affected the issues in the case and who were readily available as witnesses.” Precisely the question arose in the course of the closing argument by plaintiff’s counsel. Speaking of Lex Smith, Railway Express Agency’s truck driver, he said, “Then two or three days later, on his sworn testimony, he said, T inspected the left side of that truck.’ I asked him, ‘Why?’ ‘To see if I had caused any damage.’ ‘Who was there?’ ‘Mr. Nickels was there, an employee of the Railway Express Agency; Mr. Ruthenberg was there, an employee of the Railway Express Agency; my own brother was there, an employee of the Railway Express Agency.’ And now he says, ‘I didn’t make any report until a couple of months later and I inspected my truck the same day of that report.’ But, gentlemen, have you heard one word of testimony from his own brother, from his co-employees * * *

MR. FITZSIMMONS: May I object to that? They are equally available to him to subpoena into this courtroom.

THE COURT: I will sustain the objection. Don’t shake your head, I am going to rule.

MR. ROCHE: I wasn’t shaking it at you, Your Honor.

THE COURT: Go ahead.

MR. ROCHE: You have not heard any corroborating evidence to Smith, Now they want to tell you there could not have been any contact between that truck and this automobile.”

In their motion for a new trial the plaintiff-appellants devoted two and one-half pages to this particular assignment of error but in view of the detailed background it is not necessary to summarize the assignment here. It is sufficient to say that the essential basis of the motion was that these three employees of Railway Express Agency were not equally available to plaintiffs as witnesses and that their counsel had the right to comment on and draw unfavorable inferences from Railway’s failure to call them as witnesses to the very vital issue of whether its truck bore any telltale marks of a collision. Contrary to the basis of counsel’s objection and the court’s ruling respondent Railway Express makes no attempt to justify either the objection or the court’s ruling. It is now said that counsel did comment on the “non-production of two employees” and that they “were not witnesses to the accident and their testimony would be merely cumulative and would not affect the outcome of the trial.” In short it is contended that the ruling was harmless or that it did not materially affect the merits of the action and therefore was not reversible error. Civil Rule 83.13(b), V.A.M.R.; RSMo 1959, § 512.160(2), V.A.M.S.

In one sense it may be that the testimony of E. L. Smith (Lex’s brother), Nickels and Ruthenberg could be considered as cumulative, that is cumulative of Lex’s testimony that there were no dents or marks on the left side of the truck. But in this case, certainly as to Railway Express Agency claiming that its truck did not touch the plaintiffs’ Buick, one of the crucial issues, perhaps the most telling circumstantial issue, was whether any of the usual marks of a vehicular collision were to be found on the left side of the truck. There was a small collection of green paint, so the patrolman and others said, on the Buick automobile. An expert witness for Railway Express made a “spectographic” test of the particles found in the dented chrome of the Buick but he said that the sample “was so small that a definite, conclusive statement as to the complete identity could not be determined.” Thus if there were any scraped places on the Railway Express truck, especially dents at a height corresponding to the small scraped and dented places on the Buick they would circumstantially lend strong support to the plaintiffs’ claim that there had been a touching if not a sideswiping collision of vehicles. Since Lex Smith claimed that there was no occasion for him to check his truck at the scene and no one’s attention was directed to his vehicle until two or three days or twenty days after the event it is certainly logical that Railway Express Agency would call as witnesses anyone who had examined the truck for the purpose of determining whether any of the usual scars of a vehicular collision were present.

The respondents do not contend to the contrary but beyond question a defendant’s employee is not an equally available witness to the plaintiff in a tort action: “The failure of an employer to call as witnesses or explain the absence of his employees who have knowledge of the facts in issue has often been held to justify an inference or presumption adverse to the party.” Annotation 5 A.L.R.2d 893, 896. And in this connection it has become a general rule, the more than twenty Missouri cases are noted in 68 A.L.R.2d 1. c. 1075, that “it is permissible for counsel in a civil case, in his argument to the jury, to comment on the failure or omission of the adverse party to produce or examine as a witness on his behalf an employee of such party who is apparently qualified to testify in regard to the matter or question in issue.” Annotation 68 A.L.R.2d 1072; Block v. Rackers, Mo., 256 S.W.2d 760, 764. There have been several instances in which trial courts have granted new trials after having erroneously denied plaintiffs or defendants the right to comment unfavorably upon their adversary’s failure to call employees or other witnesses with “such a community of interest between Edster and plaintiff as to have made him a logical witness for plaintiff” or defendant. Deaver v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 83, 86. (Curiously enough counsel for the defendant in the Deaver case was the trial judge in this case.) In Adam Hat Stores, Inc. v. Kansas City, Mo.App., 307 S.W.2d 36, the trial court granted plaintiff a new trial upon failure to permit his counsel to argue the city’s failure to call two employees who had inspected the plaintiffs’ property for damages. That case sets forth the factors and defines “available.” As stated the general rules are conceded and the problem here is whether the trial court so manifestly abused its discretion in overruling their motion that they are entitled to a new trial at the hands of this court. Halley v. Schopp, Mo., 400 S.W.2d 123, 126; 68 A.L.R.2d 1. c. 1081; Eaves v. Wampler, Mo.App., 390 S.W.2d 922, 929.

In this case there was no explanation for the failure of Railway Express to call as witnesses its three employees who had inspected the truck for the purpose of ascertaining whether it bore any marks indicating that it had been involved in a collision. Bowles v. Wabash Ry. Co., Mo.App., 271 S.W. 851, 852. That these three employees obtained material information on a point in issue is beyond question and an unfavorable inference arises from their failure to call them, particularly since they made an inspection to ascertain the fact. The Fred M. Laurence, D.C., 15 F. 635; Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062. “The fact that the porter whose duty it was to see that the doors of the vestibule were closed was not called upon to testify either at the trial or by deposition theretofore, at least raises a strong presumption to the effect his testimony would not have been favorable to defendant.” Johnston v. St. Louis & S. F. R. Co., 150 Mo.App. 304, 316, 130 S.W. 413, 416. Williams v. Ricklemann, Mo., 292 S.W.2d 276, involved failure to call the defendant’s wife, a passenger when her husband’s automobile struck a child. While not an employee case the decision is of compelling force here: “We are convinced that the trial court’s ruling sustaining the defendant’s objection to plaintiff’s argument was erroneous. * * * In this situation [not being equally available] the denial to plaintiff’s counsel of the right to comment upon the failure of defendant to take the stand and to call his wife as a witness constituted prejudicial error.” Or conversely when a defendant was denied the right to comment on a plaintiff’s failure to call a doctor: “It is not a question of sufficiency of the evidence. It is a question of a litigant having been denied the right of argument to a jury. There is no way to determine from the record the effect of this ruling on the verdict. It is clear that defendant was entitled to make the argument and have the jury consider same in determining the question of damages. The error was prejudicial, and the judgment should be reversed and the cause remanded.” McInnis v. St. Louis-Southern, Inc., 341 Mo. 677, 684, 108 S.W.2d 113, 116. By the same token the error in this case was manifestly prejudicial and the trial court abused its discretion in not granting plaintiffs a new trial as to the respondent Railway Express Agency.

While the respondents Voss Truck Lines and its driver Pettigrew had no part in the objection of counsel and the court’s ruling and while the subject matter of inspection of the truck and failure to call the inspecting witnesses concerned Railway Express only and its liability, plaintiffs nevertheless contend that “(t)he benefits of these errors accrued equally to all defendants and were a major factor in all defendants receiving favorable verdicts” and that therefore they are also entitled to a new trial as to these two respondents. Although plaintiffs concede that “the trial errors complained of in previous points were committed at the behest of respondent REA,” they say that they “erroneously attacked the credibility of plaintiffs, gave improper emphasis to witnesses for defendants and implied that plaintiffs had failed to bring in witnesses who were equally available to both sides.”

The cases relied on by plaintiffs do not demonstrate prejudicial error in the particular circumstances of this appeal— here appealing plaintiffs against nonparticipating, nonoffending codefendants. In the cited cases there were no aggrieved plaintiffs, in those cases an unsuccessful defendant appealed and attempted to take advantage of an error of a codefendant, usually a defendant who had been exonerated by either the court or a jury. And of course it is a general rule that one defendant may not complain of errors favorable to his co-defendant unless the error affects the appealing defendant’s defenses or liability. O’Donnell v. St. Louis Public Service Co., Mo.App., 246 S.W.2d 539, 545; Biggs v. Crosswhite, 240 Mo.App. 1171, 225 S.W.2d 514. And if the net result is that the appealing defendant has only been deprived of the advantage of “a joint verdict and judgment against both” that is not a valid ground for a new trial as to an exonerated codefendant. Phegley v. Graham, Mo., 215 S.W.2d 499, 6 A.L.R.2d 382. There is however an applicable lesson in these cases even though they are not precisely in point: “Stated in another way, the rule is that an error in favor of one defendant must not be such as to prejudice the other defendant’s case before the jury, otherwise the plaintiff though not having invited the error has secured an unfair advantage over one of the defendants, and the judgment cannot stand.” Nevins v. Solomon, 235 Mo.App. 967, 973, 139 S.W.2d 1109, 1113; State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836.

While the issue of whether the Railway Express truck touched and sideswiped the appellants’ Buick may have involved the important question of credibility that too was in point of fact only an issue between plaintiffs and Railway Express. There was but slight if any issue of credibility between plaintiffs, Voss and Petti-grew — at best the questions were simply estimates of distances and speed, questions of judgment and opinion. Irrespective of how the Buick got across the median strip into the path of the Voss truck, Voss’s and Pettigrew’s liability were not dependent on anything Lex Smith and Railway Express did — the submitted issue as to them was whether “at the moment when said defendant (Pettigrew) first knew or could have known of such position of immediate danger said defendants still had enough time * * * he could have avoided injury to * * * by either slackening his speed or swerving.” As to each plaintiff Voss and Pettigrew simply conversed this submission. There was no submitted issue here, as in the Biggs case, of sole cause. In principle the case nearest in point is Ciardullo v. Terminal Railroad Association of St. Louis, Mo., 289 S.W.2d 96, 60 A.L.R.2d 516. There a switchman sued Terminal and Graham Paper Company, there was a verdict in favor of plaintiff against Graham Paper for $15,000 and a defendant’s verdict in favor of Terminal. Both plaintiff and Graham Paper appealed and Graham complained of Terminal’s burden of proof instruction. Material here the court said, 289 S.W.2d 1. c. 98-99, “There is no instruction in this case based on the sole negligence of Terminal and Graham has not shown how its burden of proof has been increased or the question of its liability affected. For the same reason appellant Graham’s complaint as to Instruction 7 cannot be sustained; it does not alter or prejudice the theory of Graham’s liability to the plaintiff as submitted in instructions given at the request of Graham and the plaintiff and of which no complaint is made on this appeal. * * * Even if appellant Graham were correct in all of its contentions, the result at best would be to make Terminal jointly liable and not to exculpate Graham. From the authorities cited it is apparent that this is not the purpose of permitting and appealing defendant to take advantage of an error in a co-defendant’s instruction.”

In addition to their assignment of error with respect to the argument of counsel appellants have briefed two other points not necessary to consider in disposition of this appeal; (a) refusal to strike the testimony or give a withdrawal instruction as to Railway’s paint expert and (b) permitting Railway to read the entire statement given by Lex Smith. It is said that the “cumulative effect” of these errors entitled plaintiffs to a new trial as to all defendants. It is sufficient here to say that the errors complained of are not comparable to counsel’s persistent improper conduct in repeated disregard of the court’s rulings as in Myers v. Moffett, Mo., 312 S.W.2d 59, and, therefore, the doctrine of “cumulative effect” is not applicable to this appeal.

For the reasons indicated the judgment as to Voss Truck Lines and Sanford O. Pettigrew is affirmed and the judgment as to Railway Express Agency is reversed and remanded.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Virginia DAVIS, Guardian of Elizabeth R. Conn, Incompetent, Respondent (Plaintiff), v. Beulah NEELY, Appellant (Defendant).
    No. 51934.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Harold Barrick, New London, William B. Spaun, Hannibal, for respondent.
    J. Andy Zenge, Jr., Dennis W. Smith, Canton, for appellant.
   WELBORN, Commissioner.

Action to set aside a deed and alleged gift of money. Trial court found for plaintiff on the basis of undue influence on the part of defendant. Defendant appeals.

The questioned deed was executed June 25, 1962, by Elizabeth R. Conn, conveying to her daughter, Beulah Neely, residential property located in New London, Missouri. The second transaction involved the transfer, on June 29, 1962, of $3,500 from an account in the name of Mrs. Conn in the Farmers and Merchants Bank of Hannibal to Mrs. Neely. The action to set them aside was filed November 3, 1962, by Virginia Davis, another daughter of Mrs. Conn, who had been appointed the guardian of her mother by the Ralls County Probate Court on October 29, 1962.

Mrs. Conn, a widow, was eighty-nine years old in June, 1962. Her daughter, defendant Beulah, also a widow, lived in New London. Mrs. Davis lived with her husband on a farm some four or five miles from New London. A third daughter, Mrs. Anna Laura Batty, lived in Kansas City. A son lived in Washington, but apparently was not involved in the caring for his mother. The trial court observed that the antagonism between Mrs. Neely and Mrs. Davis bordered upon hatred. Mrs. Batty never joined either sister in the bitterness toward the other.

Since the death of her husband in 1950, Mrs. Conn had lived alone at her residence in New London. Beulah visited her often and assisted her with her housework, gardening and lawn care. Virginia visited her mother as often as she was in town, or once or twice a week. On December 22, 1960, Mrs. Conn was badly burned in a fire at her home. Mrs. Neely couldn’t get her car started so Mrs. Davis was notified of her mother’s injuries and she took her mother to a hospital in Hannibal. Mrs. Neely had done practical nursing and assisted in the care of her mother during her hospitalization. Mrs. Batty came to Hannibal and also assisted. On January 17, 1961, at Mrs. Neely’s suggestion, Mrs. Conn was transferred to a hospital in Quincy, Illinois. Mrs. Davis said that she “went up there a couple or three times to see her.” Mrs. Conn was released from the hospital on February 26, 1961. Mrs. Neely and Mrs. Batty took their mother to Mrs. Neely’s place of residence in New London. On March 31, 1961, Mrs. Conn was again hospitalized in Quincy because of the burn injuries. She was released April 7, 1961, and Mrs. Batty brought her to Mrs. Davis’s residence. Mrs. Batty remained at the Davis residence with her mother until May 2, 1961.

Mrs. Conn remained with Mrs. Davis until the last week of April, 1962. Around that time, arrangements were made for Mrs. Conn to go to a rest home in Hannibal. She was at Mrs. Neely’s for about one week before going to the rest home on May 1, 1962. On June 17, 1962, Mrs. Neely removed Mrs. Conn from the rest home and took her back to New London. Mrs. Conn spent the night at Mrs. Neely’s, but during the day she was at her own residence and Mrs. Neely brought her noon meal to her.

On October 1, 1962, Mrs. Batty returned to New London. After learning of the transactions here in question, Mrs. Batty took Mrs. Conn to her home in Kansas City. On around October 21, 1962, Mrs. Conn returned to Mrs. Davis’s home and remained there until the time of the trial.

Prior to her injury in December, 1960, Mrs. Conn had a checking account in the Farmers and Merchants Bank of Hannibal. She maintained a balance averaging in the vicinity of $4,000.00. The expenses of her hospitalization were paid from the account. On April 17, 1961, the account was changed to a joint account with Mrs. Batty, with either authorized to draw checks on the account. Mrs. Conn also had a $5,000 certificate of deposit with Citizens Discount Co. of Hannibal. That company would not place the account in joint names. By arrangement made by Mrs. Davis, the account there was, around May, 1961, placed in the name of Mrs. Batty. According to Mrs. Batty, the accounts were so changed in order to permit someone to be in a position to take care of her mother in the event that her mother was in no position to do so. Mrs. Neely, according to Mrs. Batty, approved the arrangements. Thereafter, Mrs. Batty signed checks for her mother’s expenses, including the charge for nursing home care. The interest income from the Citizens Discount Certificate was deposited in the Conn-Batty account.

Mrs. Conn had a dog “Trixie” of which she was very fond. One consideration in the choice of the nursing home to which Mrs. Conn was taken was that she was permitted to have the dog with her. By an almost undecipherable post card, dated June 13, 1962, Mrs. Conn informed Mrs. Neely that “Virge (Mrs. Davis) and Grace (Conn) come and got Trix.” Mrs. Neely went to the rest home on June 15, and after an altercation in which the proprietress struck her mother (accidentally, according to Mrs. Conn — the blow was intended for Mrs. Neely) and which required police intervention, Mrs. Neely returned Mrs. Conn to New London. Mrs. Conn spent the days at her residence with Trixie, who was found at the Davis residence, and her nights at Mrs. Neely’s.

The major portion of the testimony concerning the June 25th and 29th transactions came from Mrs. Neely. According to Mrs. Neely, her mother had frequently told her that the place in New London was rightfully Beulah’s because her husband had lent her father $300 toward its purchase price and it was never repaid. After she returned from the nursing home, Mrs. Conn said: “Beulah, you have done more for me than all the rest of them, and I want you to have that place back.” On Sunday she said to Beulah, “I left my safe deposit box at Ann Croll’s, and I want to go over there and get that box.” Beulah took her mother to Mrs. Croll’s that afternoon. Her mother told Ann, “Ann, I left my box here, and I would like to have it.” “Ann went and got it and * * * set it in her lap, with those band-aids still on her face, [my mother] looked up at her and she said, ‘Ann,’ she said, ‘Virge is back of all of this,’ says, ‘that’s the meanest - * * * that ever walked on two feet.’ ”

Mrs. Davis had testified that, when she took her mother to the hospital at Hannibal in December, 1960, her mother asked that she get her lockbox and take it to Mrs. Croll’s. Mrs. Davis did so en route to the hospital. Mrs. Davis subsequently removed the Citizens Discount Certificate from the box while it was in Mrs. Croll’s custody. Mrs. Conn’s husband was Mrs. Croll’s half brother. According to Mrs. Croll, Mrs. Davis and Mrs. Conn came by her house after the fire and brought a metal box “like most women keep their papers in * * She described its return to Mrs. Conn as follows: “Mrs. Falk, my sister, was here and [Mrs. Conn and Mrs. Neely] came to see my sister. When they got ready to go home, Beulah said to her mother: ‘Mother, are you going to ask what y.ou came for?’ She said: ‘What did I come for ?’ and Beulah said: ‘That box.’ I asked Lizzie: ‘Do you want your box,’ and she said: ‘I guess I do.’ ”

According to Beulah, when she and her mother got home with the box, they were unable to locate a key for the padlock with which it was locked. Her mother said: “I’m going to get in this box * * * Have you got a hacksaw?” Beulah had such a tool and laid it on the table for her mother. “She sawed, and sawed on it. Her little hands weren’t any wider than my three fingers and she was handling that hacksaw. I was canning out back and as I came through into the kitchen she said, ‘Come here a minute.’ I went and she said, ‘Give me a little lift on this,’ and just to please her, I said, ‘all right,’ and I picked it up and sawed about two or three saws and laid it down, and when I came ⅛ she had it all off.”

According to Beulah, her mother noticed that the Citizens Discount Certificate was missing and remarked that she had endorsed it to Mrs. Batty. She said: “Beulah, I’m climbing the ladder * * * I’m really getting up in years * * * If you don’t get anything before I die, you will never get a dollar after I die and I want to fix this thing. * * * I want to make you a deed to that house that rightfully you gave us.” “There’s no old deeds in the box * * * You will have to get the description off the abstract.” She gave Beulah the abstract and from it Beulah obtained the description to the property which was used in the deed that she prepared.

Before preparing the deed, Beulah, in order to satisfy herself of her mother’s mental capacity, although she herself knew there was nothing wrong with her mentally, had her mother examined by Doctor Lank-ford at Mexico. On June 25, 1962, Doctor Lankford examined Mrs. Conn for a urinary tract infection and, according to Doctor Lankford, “her daughter at the time questioned me as to her sensorium or rationale, so I quizzed her as to her knowledge of time, place and person, recent events, past events.” The doctor found her oriented as to time, place and person and was of the opinion that she would have understood a deed transaction at that time.

On their return to New London, Beulah prepared the deed from her mother to her and also a certificate of delivery of the deed from the grantor to the grantee.

On June 26, Mrs. Roberta Blackwell, a notary public, went, in response to a call from Beulah, to Beulah’s apartment, where she saw Mrs. Conn sign the deed and took her acknowledgment. Mrs. Blackwell said that she had known Mrs. Conn for several years, and that she visited with her on this occasion a few minutes. Then Mrs. Neely asked her if she was ready to sign, or words to that effect, and she said, “yes.” Mrs. Blackwell said that she had no conversation with Mrs. Conn concerning the nature of the instrument and that she (Mrs. Blackwell) did not know what it was. The only comment by Mrs. Conn which Mrs. Blackwell recalled was “It’s Hell when your kids fight all the time.”

The deed recited a consideration of $1.00 and other good and valuable considerations. When Beulah was asked whether or not she paid any consideration, she replied: “Well, I throwed down a couple or three dollars, whatever it was.” She said that she did so because her mother said, “You better put a revenue stamp on there to indicate a consideration.” She said that her mother also said, “Beulah, try not to have that recorded for a while, at least, maybe until I am gone. * * * When that sister finds it out, she is going to start raising the devil.” Acceding to her mother’s request, Beulah did not record the deed until October 27, 1962.

As for the $3,500, Beulah testified that her mother was unhappy with Mrs. Davis because she had been inquiring at the bank about the status of Mrs. Conn’s account. Beulah went to the bank to find out who was giving Mrs. Davis information. When she returned and told her mother what she learned, her mother said: “Well, you pay everything anyway and I am going to make you a gift, you have been good to me, you have taken me through these hard sick spells * * * I want you to have the rest of what I’ve got.”

On June 29, 1962, Beulah and her mother went to the bank. Beulah inquired about the balance in the account, which was $3,-975.51. Her mother told her to leave a little in the account to pay her Blue Cross and Blue Shield. Beulah and a bank employee made out a check payable to Mrs. Conn for $3,500.00. Her mother turned it over and endorsed it and said: “Now this is yours.” Beulah deposited the check in a savings account which she opened in her name.

Mrs. Batty returned to New London on October 1, 1962. She asked Mrs. Neely about the balance in their mother’s bank account. When she was told that it was around $300, she asked what had happened to the remainder and Mrs. Neely said, “It’s safe.” Mrs. Batty had a “few words” with Mrs. Neely. According to Mrs. Batty, they had a “few more words” a day or two later and Mrs. Neely said, “I was a damn fool if I didn’t keep what I had.” Mrs. Neely denied having made such a statement. When Mrs. Batty left New London about October 8, she took her mother with her. Around October 21, she returned with her mother to New London when she went to stay with Mrs. Davis. The guardianship proceedings began shortly afterward, without the knowledge of Mrs. Neely.

The trial court, in reaching its conclusion that the transfers were the result of undue influence of Mrs. Neely obviously placed little stock in the credibility of Mrs. Neely’s version of the events. The recital of her testimony is sufficient to lead us to the same conclusion.

The trial court did give considerable weight to the testimony, by deposition, of Mrs. Conn. On this appeal, appellant contends that the court erroneously considered Mrs. Conn’s deposition because she had insufficient mental capacity to testify. When objection was raised to Mrs. Conn’s capacity to give a deposition, the trial court, on December 29, 1962, conducted a voir dire examination of the witness and concluded that the objection of the defendant to Mrs. Conn giving her deposition should be overruled. Mrs. Conn’s deposition was not completed until November 14, 1963. At the trial, the court overruled the objection to the introduction of the testimony given by Mrs. Conn on the deposition. The trial court ruled that, despite the provision of § 491.060(1), RSMo 1959, V.A.M.S., the adjudication that Mrs. Conn was incompetent created “only a prima facie presumption of incompetency to testify as a witness which is rebuttable by voir dire examination or otherwise. Beil v. Gaertner [335 Mo. 617], 197 S.W. (2) 611; State v. Brown [360 Mo. 104], 227 S.W. (2) 646; and State v. Herring, 188 S.W. 169, 268 Mo. 514.” The court found, on the basis of the voir dire examination and the answers that Mrs. Conn gave on her deposition, that she was “of sufficient mental capacity to know the nature of an oath and to have a sufficient memory to recall and tell the things * * * she saw and heard.”

Appellant does not question the trial court’s statement of the applicable law, but contends that the answers given by Mrs. Conn on her deposition amply indicate that her mental condition had so deteriorated at the time of giving the deposition that she was unable to give competent testimony.

Our examination of Mrs. Conn’s deposition reveals some confusion on her part on her cross-examination by counsel then representing defendant. Her testimony does show that she was aware that she had an account at the Farmers and Merchants Bank and that her husband had left her property in New London. She was aware that the money in the bank account was used to take care of her needs, and that, as Beulah testified, Beulah would get money on checks which Mrs. Conn wrote. She testified correctly that she was at the nursing home about a month, “maybe a little longer.” She recalled the altercation with the proprietress on her departure. Mrs. Conn was obviously confused tvvo occasions when she was at the bank with Beulah. She kept referring to an occasion, apparently when the acount was opened. However, she was undoubtedly there when the $3,500 was transferred to Beulah. All in all, we do not find such absence of capacity, on the part of Mrs. Conn, as would cause her testimony to be rejected. We consider it of significance in showing the dealings with Beulah on the transaction in question. We note the following from her deposition:

“Q. Do you remember going to the Farmers and Merchants Bank with your daughter, Mrs. Neely ? A. Yes.
“Q. Did you sign any papers at the bank? A. Yes.
“Q. Who told you to sign them? A. She told me to sign here.
“Q. Who was ‘she’ ? A. Beulah.
“Q. Did you know you were signing your bank account over to her? A. No, sir. I wouldn’t sign my bank account to anybody.
“Q. Did you sign your home over to Beulah Neely? A. No, sir. No, sir. I never signed it over to her.
“Q. What did Mrs. Neely tell you when you signed the paper? A. She just said ‘sign this paper, Mom’ then the paper was folded so I couldn’t see anything else but just where I was to write, than to write my name. There was nobody in there when I signed the paper.
“Q. Did you trust your daughter, Beulah Neely? A. Well, I always had.
“Q. Was she good to you? A. Yes, she was pretty good to me. All of them get mad at you at times. I guess I am aggravating sometimes.
“Q. Did you know you signed a deed to your home property to Beulah ? A. No, not until I heard people talking about it. It was in the papers they said. I got the Hannibal paper.
“Q. Did you see it in the Hannibal paper? A. Yes, after I was told about it.
“Q. Did you mean to deed her your property at any time? A. No indeed.
* 5¡C ⅜ ⅜ ⅜ ⅝
“A. If I signed a paper to give my money away I didn’t know it. I never looked at them.
* * ⅜ ⅜ ⅜ *
“Q. Did you want Beulah to have your money in your bank account? A. Get my money?
“Q. Did you want her to have your money? A. No, I didn’t want her to keep my money. I wanted to put it in the bank.
“Q. Did you want her to have your house? A. No, I wanted my house, but she took it away from me.
“Q. You want your home back, do you? A. Yes.
“Q. Do you want your money back? A. Yes, because I’ve got no money to live on.
“Q. You have always trusted Beulah? A. I always had before.”

We think this testimony, together with the obvious situation of the parties and Beulah’s unconvincing version of the transactions, shows that the transactions were the product of Beulah’s undue influence. We agree with the trial court’s assessment of the situation:

“When all the evidence is considered— the age of Mrs. Conn, the amount of her real property and personal property, the physical and mental condition of Mrs. Conn, the natural objects of her bounty, the preparation of the deed and certificate of delivery by Mrs. Neely, the taking her mother to the Mexico doctor to have him consider the mental competency of Mrs. Conn the very day the warranty deed was dated, the fact that Mrs. Neely actively participated in both the execution of the deed and the transfer of the money in the bank, the testimony of Mrs. Conn that she never intended to convey her real estate or to give the $3,500.00 to Mrs. Neely, the circumstance of Mrs. Neely’s delayed rec-ordation of the deed, her having failed to advise either of her sisters of the conveyance of the mother’s home or transfer of the bank funds, the fact that at other times Mrs. Conn had Mrs. Neely get small amounts of money from the bank for her and that on the bank visit June 29, 1962, Mrs. Conn believed that that was what Mrs. Neely was doing for her and that Mrs. Conn did not know that she was transferring to said daughter all her money in the bank except about $375.00, Mrs. Neely’s retaining the $3,500.00 in cash in her home since the latter part of October, 1962, all these facts and circumstances in combination require me to find the issues for the plaintiff herein.”

See Manahan v. Manahan, Mo.Sup., 52 S.W.2d 825; Dimity v. Dimity, Mo.Sup., 62 S.W.2d 859; Bohnsack v. Hanebrink, Mo.Sup., 240 S.W.2d 903.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

HENLEY and HYDE, JJ., and STORCK-MAN, Alt. J., concur.

HOLMAN, P. J., not sitting.


author: STOCKARD, Commissioner.

text:
    Amelia BONASTIA, Administratrix of the Estate of Nick Bonastia, Deceased, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Appellant.
    No. 51988.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.

      James E. Hullverson, Edward L. Dowd, and Hullverson, Richardson & Hullverson, St. Louis, for plaintiff-respondent.
    Schwartz & Ely, Robert.C..Ely, St. Louis, for defendant-appellant.
   STOCKARD, Commissioner.

Defendant has appealed from a judgment of $50,000 in favor of plaintiff, the widow of Nick Bonastia, in her action brought pursuant to the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. The only issues presented on this appeal are that the trial court erred in refusing a withdrawal instruction requested by defendant, and if not, then that the judgment is excessive.

Mr. Bonastia, an employee of defendant, died on May 29, 1963, after he had on March 29, 1963, sustained an injury in the performance of his duties resulting from the negligence of a fellow employee. Defendant contends that there was insufficient probative evidence to permit a finding that the injury sustained by Mr. Bonastia was a contributing cause of death, and it requested, and the trial court refused, Instruction A as follows: “The issue of the death of Nick Bonastia is withdrawn from the case and you are not to consider such evidence in arriving at your verdict.”

While Mr. Bonastia was coupling what is referred to as a bull wagon to another wagon the operator of a tractor to which the bull wagons were coupled drove off without warning, and Mr. Bonastia was injured when caught between a bull wagon and a steel post. In describing the accident a fellow employee said that “as the wagon moved forward it crushed him between the post * * * and crushed him right across * * * the stomach here and the chest, and then as the wagon passed on by, it kind of rolled him that way and knocked the breath out of him * * and the “corner [of the bull wagon] hit him and it just rolled him, the whole side of the wagon.”

Following the accident Mr. Bonastia complained that he could not get his breath, he was pale in appearance and held his hands across his chest and stomach. After a few minutes he returned to work. That night he complained to his wife of severe chest pain and he slept poorly. The next morning he said that “it [apparently his chest] was still hurting him bad.” After reporting for work he complained of pain in his chest, and about ten o’clock he said that “he couldn’t make it any more” and then went to Missouri Pacific Hospital. The description of his injury on the hospital report was “slightly tender, 4th and 5th ribs right, near sternum,” and the “preliminary diagnosis’.’ was “contusion of chest.” As an outpatient he received two prescriptions for codeine, and X rays were taken of his chest. No fracture of the ribs was shown.

Plaintiff testified that from March 29, the date of her husband’s injury, until May 29, the date of his death, he complained about pain “every day,” and he said “it was hurting so bad sometimes he couldn’t hardly breathe.” She said that he also complained that his shoulder would hurt on the left side “like a sharp pain.” When plaintiff was asked if there was “any day that he did not make some complaint to you with reference to the chest trouble he was having from the time of the accident until his death,” she replied that “he always complained about his chest hurting him so bad.” On cross-examination plaintiff stated that in her pre-trial deposition, in reference to her husband’s complaints from the time of his injury to the time of his death, she had correctly testified: “Well, sometimes they were getting worse and some days they felt pretty good but most of the time he felt bad.”

Plaintiff’s husband continued to work until May 20, but he frequently complained to his fellow workers of pain or discomfort in his chest, and once said that “something is wrong inside.” One fellow employee testified that every morning he would ask him “how are you doing?” and he would say, “Oh, I hurt,” and he made these complaints “pretty regular.”

Mr. Bonastia was admitted to the hospital on May 23, 1966. The hospital records showed the “present complaint on admission” to be “Hematuria three days; epi-gastric pain three days. Loss of appetite, dyspepsia, nausea and vomiting.” The “final diagnosis” was “Thrombocytopenic purpura and polycystic kidney.” A cardiac examination disclosed “regular' rhythm” and “no murmurs.” A tenderness “to a small degree over the epigastrium” was noted, and he complained of “some pain in the right upper abdomen.” An electrocardiogram was performed on May 24, and again on May 27, and each resulted in readings within “normal limits.” He died on May 29. An autopsy was performed and the report contained, among other things, these notations : “Heart: There was an infarct situated near the apex on the left side near the terminal portion of the left descending coronary branch,” and “Cause of death: Coronary infarct in the left descending branch; contributing cause, acute pulmonary edema.”

Plaintiff called as expert witnesses Dr. Shale Marshall Rifkin and Dr. Fred Mor-tensen. Neither doctor had treated or examined Nick Bonastia. Each doctor admittedly was qualified as an expert witness. After describing the function of the heart, Dr. Rifkin stated that it is a “muscular structure” which needs blood the same as any other muscle of the body, and that if one of the arterial vessels supplying blood to the heart muscle is occluded or blocked, “the heart muscle that is supplied by that particular branch will undergo death or necrosis, the muscle will die; if the muscle is such a degree the entire heart will die; if it’s just a small portion of the heart muscle, it will not undergo death, it will be replaced by fibrous tissue, scar tissue, and the heart will go on with its function,” and that the “muscle that dies is * * * said to be infarcted.” In explaining what was meant by “a coronary infarct of the left descending branch,” he identified on a plastic model of the heart what he called the “left descending coronary artery,” and stated that it is a hollow vessel carrying blood to the muscle of the heart, and that “an injury to the wall of the vessel, trauma to the coronary vessel, could form * * * a blood clot,” and that would stop the blood going to the heart muscle.

Dr. Rifkin was asked a lengthy hypothetical question in which numerous facts were submitted, including the circumstances of the accident, that from the accident until his death Mr. Bonastia “complained of persistent pain and soreness in his chest, that while at work he had regularly complained of chest pains,” and that an autopsy disclosed that “there was an infarct situated near the apex on the left side near the terminal portion of the left descending coronary branch.” He was then asked if he had an opinion whether the injury to Mr. Bonas-tia’s chest on March 29, 1963, “either caused or was a substantial contributory cause of his death.” No objection was made to the hypothetical question, and there was no contention that any of the hypothesized facts had not previously been established by competent evidence. The doctor’s answer was, “It is my opinion that [Mr. Bonastia] sustained an injury to his chect causing an injury to this blood vessel [apparently referring to the left descending coronary artery] which caused an occlusion or blockage of this vessel with subsequent infarction or death of this portion of the muscle near the apex of the heart. The heart was able to function with pain for a period of two months and then failed, the pumping mechanism failed, went into pulmonary edema with fluid in his lungs or the fluid backing up in his lungs and subsequent death.”

Dr. Mortensen was asked the same hypothetical question, to which no objection was made, and his anwer was, “Yes, it [the injury received by Mr. Bonastia on March 29] did cause his death.”

Defendant’s contention on this appeal is that on cross-examination each doctor related the basis for his opinion, and “in each instance the basis was a false assumption so that the opinions have no probative value,” and that the testimony of the treating doctor and the hospital record “showed the cause of death to be a blood disease, which appeared about nine days before death and which was not the result of trauma.” Defendant then asserts that the withdrawal instruction, which was refused by the trial court, “was necessary to clearly present to the jury the issue of damages.”

Dr. Rifkin admitted on cross-examination that in arriving at his opinion the presence of persistent chest pain was important because pain resulting from injury to the chest wall alone would come and go, but pain resulting from injury to the heart would be persistent. He further stated that if Mr. Bonastia had not suffered persistent chest pain his opinion as to the cause of his death would have been different. The effect of defendant’s contention that Dr. Rifkin’s opinion was based on a false assumption is that there was no competent and substantial evidence that Mr. Bonastia suffered persistent chest pain. In support of this defendant points out that the pain suffered by Mr. Bonastia was consistent with chest wall pain because (a) Dr. Rif-kin testified that although he would not expect chest wall pain to continue for two months it would continue as long as there were bruises, and plaintiff testified the bruises were there until the death of Mr. Bonastia, and (b) Dr. Mortensen testified that complaint of increased pain when lifting or during deep inhalation, of which there was some evidence, indicated chest wall pain rather than cardiac pain. Defendant then asserts that plaintiff testified (to quote from the argument in its brief) that “there were days when her husband felt pretty good.”

We are not to weigh the evidence to determine whether Mr. Bonastia suffered persistent chest pain or only pain resulting from injury to his chest wall. Instead, we are to determine whether there was substantial and competent evidence from which it could have been found that he did suffer persistent chest pain. Mrs. Bonastia testified at trial that her husband complained of pain “every day” and that he “always complained” about his chest hurting him. A fellow employee testified that he complained every day that he “hurt.” At the hospital he was given two prescriptions for codeine, a medication to relieve pain, and the out-patient hospital reports consistently showed chest pain. This evidence unquestionably would authorize a finding of persistent chest pain, and therefore would support the opinion of an expert witness based upon that assumption. The next question is whether the probative value of the above evidence is destroyed because Mrs. Bonastia testified that on pre-trial deposition she had correctly stated, when asked “about the complaints from the time of his injury * * * until the time of his death,” that “Well, sometimes they were getting worse and some days they felt pretty good but most of the time he felt bad.”

Defendant asserts that “if there were days when Nick Bonastia felt pretty good” then Dr. Rifkin’s opinion of a causal connection was not based upon the actual facts but was instead based upon a false assumption and was not supported by substantial evidence.” We do not consider the statement of plaintiff on pre-trial deposition that “some days they [presumably referring to his complaints] felt pretty good” to establish that Mr. Bonastia did not suffer persistent chest pain. At least that is not precisely what was said. Neither do we consider the statement to be inconsistent with plaintiff’s testimony at the trial, or with the other evidence from which persistent chest pain could be inferred. But, if we should assume that this vague pretrial statement, admitted by plaintiff to have been correct, should be construed to mean that on some days Mr. Bonastia “felt pretty good,” that is, did not have persistent chest pain, it was not destructive of the evidence received at the trial which authorized the submission in the hypothetical question of persistent chest pain. In Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647, in considering the question of submissibility, it was said that where a party relies on the testimony of a single witness to prove a given issue, and the testimony is contradictory and conflicting, with no explanation of the contradiction and no other fact or circumstance tending to show which version is true, no case is made, and the jury cannot be permitted tc speculate. But, it was further held that “if, in such a case, the conflicting and contradictory statements of the witness are reasonably explained, or if there are other facts and circumstances in the case tending to show which story of the witness is true, and from a fair consideration of all the facts and circumstances in evidence a jury could reasonably determine which statement of the witness should be accepted as true, then the credibility of the witness and the weight to be given to his testimony are questions for the jury.” In Miller v. Multiplex Faucet Company, Mo., 315 S.W.2d 224, 227, the rule was briefly but concisely stated that “prior statements of a witness, even though the witness is a party, while admissible for impeachment, do not destroy the prima facie probative effect of the contrary testimony of the witness at the subsequent trial.” This rule applies to the issue of whether there is substantial competent evidence upon which to base the assumption of a fact in a hypothetical question as well as to the submissibility of an issue.

We cannot say that as a matter of law there was no competent and substantial evidence from which it could be found that Mr. Bonastia suffered persistent chest pain, and that as a matter of law the opinion of Dr. Rifkin Was based on a false assumption and for that reason was of no probative value. Proper opinion testimony as to causal connection is competent and constitutes substantial evidence for the submission of that issue to the jury. Dorsey v. Muilenburg, Mo., 345 S.W.2d 134; Schaefer v. Rechter, Mo., 290 S.W.2d 118; Harp v. Illinois Central Railroad Company, Mo., 370 S.W.2d 387, 391. Since we have determined that the opinion testimony of Dr. Rifkin constituted proper opinion testimony of causation and resulted in a sub-missible issue for the jury, the trial court correctly refused Instruction A requested by defendant, and for that reason we need not expressly rule defendant’s contentions as to the opinion testimony of Dr. Morten-sen.

Defendant’s remaining assignment is that the judgment is excessive. Mr. Bonastia was 53 years of age at the time of his death. At the time of trial, which was more than two years thereafter, his widow was 50 years of age. He had four sons, the older two living in St. Louis, and the younger two being in the Air Force. The youngest son was 18 years of age, but it may be assumed that at the time of Mr. Bonastia’s death this boy, then not over 16 years of age, was not in the Air Force and was a dependent. Mr. Bonastia had worked for defendant for 15 to 20 years as a baggage handler. His income in 1961 was $5,321 and in 1962 it was $6,717. The jury verdict was for $60,000 but was reduced to $50,000 by the trial court on conditional remittitur.

The burden of establishing that the judgment is excessive is on the defendant. It cites and relies upon only one case, Hughes v. Terminal Railroad Ass’n of St. Louis, Mo., 296 S.W.2d 59, decided in 1956, in which a judgment for $55,000 was reduced by conditional remittitur to $40,000. The factual situations in that case and this one are somewhat similar. When we take into consideration the various permissible factors pertaining to our authority to order a remittitur, including changing economic conditions, Hunter v. St. Louis Southwestern Railway Company, Mo., 315 S.W.2d 689, 697, and that the trial court after thoughtful consideration ordered a remit-titur of $10,000, Greenan v. Emerson Electric Mfg. Co., 354 Mo. 781, 191 S.W.2d 646, we necessarily conclude that the only authority cited and relied upon by defendant to meet its burden of establishing excessiveness neither justifies nor requires an additional remittitur in this case.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.