author: RUARK, Presiding Judge.

text:
    In the Interest of C., C., and C.
    No. 8241.
    Springfield Court of Appeals. Missouri.
    June 17, 1964.

      Raymond A. Klemp, Caruthersville, for appellant.
    Ward & Reeves, Caruthersville, for respondents.
   RUARK, Presiding Judge.

This is an appeal from a judgment decreeing adoption of two children, a boy and a girl (hereinafter called “the twins”), age six past at the time of filing of petitions for adoption and for order of custody and age not quite nine at the time the decree was rendered, also an older brother (who will be hereinafter referred to simply as “the older boy”), who was sixteen past years old when the petitions were filed and nearing nineteen when the decree was entered. The older boy filed consent to the adoption. After the petitions were filed, the natural father brought habeas corpus for the custody of the children. After what appears to have been a lengthy hearing with many witnesses, The Honorable William L. Rag-land, Judge, denied the father’s petition and ordered custody in the petitioners. Thereafter, Judge Ragland having been disqualified, The Honorable Marshall Craig, Special Judge, tried the issues on the petition for adoption and, after a rather lengthy and hard-fought proceeding, entered his judgment decreeing the adoption.

The petition for adoption contained the usual allegations as to fitness of the adoptive parents and unfitness of the natural father. Specifically it charged that such father had willfully neglected to provide the children with the proper care and maintenance for a period of more than one year immediately prior to the filing of the petition.

From the whole evidence the trial judge could have found the following facts which we attempt (only) to summarize:

The petitioners are husband and wife. The petitioner husband has some college education. He has taught school but is now regularly employed as manager of a business. Petitioners own some land approximately four miles from town, and that is where their home is situated. The home is fairly modest, but comfortable. It has three bedrooms, a water system, and gas heat. Petitioners derive some extra income from farming operations. The husband’s net annual income is approximately $7300. The wife does not work out but has been spending her time at home and in caring-for the children who are here involved. The couple have steady habits and enjoy a good reputation. Due to an earlier operation suffered by the wife, they have been unable to have natural children. The petitioner wife is (was) the sister of the natural mother of the children here involved.

The three children, with their natural' father and natural mother, lived in a city in Arkansas. In 1957 the natural mother died. Shortly after her death the father brought the two younger children (the twins) to the petitioners, and they (the petitioners) kept and cared for them. The older boy stayed with the father at the Arkansas city. During this period three men stayed at the home in addition to the father. The boy said that during this period his father “went out quite frequently.”'

At some time (we are not sure just when) the father let liquor get the best of him. He became a common drunk, an associate of disreputable persons, and a frequenter of places where there were “questionable women.” His employment, if any, was irregular.

In January 1959 the father married a lady whom (only in order to avoid names) we will refer to as “the stepmother.” Although she had been married twice previously, she had no children. The stepmother owned a business building in the city. In the front of this building were a beauty shop, which was operated by the stepmother, and another storeroom which was rented and used by the tenants as a liquor store. The living quarters were in the back of the building behind the beauty shop and liquor store. Behind the building was a fenced-in play yard which adjoined a car lot of some kind.

In February or March 1959 (after his remarriage) the father took the twins back and thenceforward, until about November 1960, the father, the stepmother, and the three children lived in the apartment behind the beauty parlor and liquor store. This is a period we will attempt to cover in generalities. A number of witnesses testified concerning it. The older boy testified in chambers but in the presence (and by agreement) of counsel. Also by agreement, the court took the twins into chambers and questioned them in a genial and conversational manner only in the presence of the reporter. We can sum up this period by saying that the father was on an almost continuous series of drunks. Apparently he did not have employment, but he drew $97.50 for the children from his dead wife’s social security. For what this money went the evidence does not show, but his expenditures for liquor must have been considerable, The second wife, the stepmother, ■owned and furnished the living quarters, and she had her beauty shop business as a source of income. The apartment was frequented by drunks and disreputable persons usually brought there by the father. Vile language was used in the presence of the children. There is mention of drunks lying on the floor; of a drunken man crawling in bed with the girl twin; of beauty operators coming back to join in the drinking. The father admits that he was a drunkard. He says his wife, the stepmother, drank but got drunk only “rarely.” During the days, the twins visited part of the time around in the beauty shop and sometimes in the liquor store next door. The proprietors of the liquor store said the children were “well-behaved” and caused no disturbance. Sometimes the twins would sit in the liquor store, eat a hamburger, drink a coke, and watch television. During this period the twins attended Sunday school, but it was the older boy who took them. “Usually” he would return with them from Sunday school to find his father and the stepmother sitting in the apartment drinking. Conditions became so “terrible” with the father and the stepmother in this home that the older son decided to leave. He got as far as Memphis and then decided that he should return because of the needs of his little brother and sister. We think a fair conclusion to be drawn from the evidence is that it was the older son who assumed (as well as he could) the responsibility of the proper care and maintenance of his little brother and sister during this period. He said he was ashamed to bring any of his acquaintances to the apartment. The little boy twin told the court, “I couldn’t stand it very well.” The stepmother testified that “when [the older boy] left, that blew the works; * *

During this period the children were permitted to make occasional visits with their aunt and uncle (the petitioners) in Missouri. When their visits terminated, the twins would scream and cry in protest against being taken back. Once the little boy ran off in an attempt to escape being taken back. The evidence indicates that this boy began to have an emotional problem. Sometimes when the aunt and uncle would return the twins, they would find a note pinned to the door telling them to leave the children at some other person’s home. Sometimes the children knew where they were going and knew the people with whom they were to be left; at other times they did not.

In September 1960 the stepmother had a radical breast operation, and she was in ill health for the remainder of the period involved. Her semi-invalid condition did not limit the father’s activities. He would leave and be gone for days at a time. Finally, in November 1960, the father left (after first breaking up the furniture) and apparently went to Florida, without advising his children he was leaving or making any arrangements for their care. At this time the stepmother informed the older boy that she was not physically or financially able to care for the children, and on Thanksgiving, 1960, he took the twins hack to the aunt and uncle (petitioners) where they have since remained. On December 22, 1960, the petition for adoption and petition for change of custody were filed.

Sometime in December 1960 the natural father returned to the home of the mother of his first wife in Missouri and stayed a few days. Apparently he was asked to leave. He then went to West Virginia where his relatives lived. He remained there until sometime in March. He says he was then engaged in helping his relatives liquidate a store. During this period someone, probably the father, sent the petitioners eighty dollars. (This was apparently after these proceedings had been filed, and we cannot say whether he was then still drawing social security for the children at that time.)

On February 4, 1961, the father filed the habeas corpus proceeding for custody of the children, which was heard and denied on April 4, 1961. Evidently the father had returned from West Virginia for this hearing. On February 20, 1961, the second wife (the stepmother) obtained a divorce from the father. After that (he says) he got a “patronage job” in Washington, D. C., where he stayed until November 1961. In November of that year he went to Memphis, Tennessee; and that is when he says he quit drinking. In January 1962 he got a job as an automobile salesman and has been successful at it. He and the stepmother were remarried on March 25, 1961. His present associates give him a good reputation. He has joined the church, and his minister testified in his favor. He has a room in Memphis but goes back to the apartment in the city in Arkansas on weekends and on Wednesday afternoons. His wife still runs the beauty parlor.

Returning to the children: The older son is in college. He is being sent, at some sacrifice, by the petitioners. The father knew this son had graduated from high school but made no effort to get in touch with him thereafter. Finally (according to the son) the boy called his father and got in touch with him, and they have gone out to dinner a few times. Nevertheless, the father, although he says he makes more money than the petitioners, who have been bearing that burden, has not offered the son any financial help in his college career.

The father’s total contribution toward his children since his return consists of the following: He has given them birthday presents and Christmas gifts, including some clothing, but primarily toys. At Easter (presumably in 1962) he gave each of the twins an outfit of clothing. Upon the older boy’s graduation from high school he sent him a gift certificate for twenty-five dollars. Apparently all of these have been given after these proceedings were commenced.

As to the younger children: The little girl was sick when brought back to petitioners’ home on Thanksgiving, 1960, and was not able to enter school until after Christmas. According to the school and Sunday school personnel, the little boy twin has now become adjusted, and both children are now doing well. One cannot read the transcript (even though the petitioners’ testimony be disregarded) without arriving at the following conclusions: (a) There is a deep and. abiding love between the children and the petitioners. Strong ties of affection exist, and the children are now doing well in all respects, (b) During the pendency -of these proceedings, the twins have been taken to visit the natural father and stepmother upon occasions. Despite the conduct of the father, the. children have not been taught to disrespect him. The petitioners have not “degraded” the father to the children who say that they love him. The children, however, “just don’t care for her [the stepmother] too much.” They seem to feel that she ridicules them, (c) The children are happy where they are and very much want to stay with the petitioners. They have an almost extreme revulsion to returning to live with the father and the stepmother, (d) Any disruption of the present situation could have a harmful, even possibly dangerous, effect upon the future of the children.

We have no hesitancy in agreeing with both of the circuit judges who determined that custody of the children should remain in the petitioners. Any other conclusion would be one which sacrifices the welfare of the children to absolute control and wishes of the parent, no matter what the motive; Our problem is as to the validity of the fixing legal status of adoption. Section 453.030, RSMo, V.A.M.S., as amended, provides that the consent of the parent is required except 'in those cases specifically exempted under Section 453.040, RSMo, V.A.M.S. The iast mentioned section (in paragraph four) provides that consent shall not be required of “[a] parent who has for a period ,of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him [them] with proper care and maintenance.” The petition for adoption was filed December 22, 1960. The principal question involved is, therefore, 'whether the conduct of defendant during at least a year previous to that date was such that he either abandoned .or willfully neglected to „profvide proper care and maintenance!'

■ The ■ adoption code is an assertion by the state of the role of its duty as parens patriae. It is said that the principal objectives of the act are (a) to enable one person to make another his heir and (b) to protect the children. 4 St. Louis U.L.J., p. 478, and cases at Footnote 11; State ex rel. M. L. H. v. Carroll, Mo.App., 343 S.W.2d 622, 625; In re McAvoy’s Adoption, 237 Mo.App. 1099, 173 S.W.2d 108 [7]; State ex rel. Earnest v. Meriwether, Mo., 270 S.W.2d 20, 22.

In the construction of any particular section, regard must be had to the purpose and intent of the legislature as evidenced by all provisions of the code. The act must be considered as a whole. In re Mayernik, Mo., 292 S.W.2d 562; In re Davis’ Adoption, Mo.App., 285 S.W.2d 35; In re McKinzie’s Adoption, Mo.App., 275 S.W.2d 365. Running through all the decisions is the theme that the welfare of the child is the primary and paramount consideration. In re K. W. S., Mo.App., 370 S.W.2d 698, and cases at 703-704; In re P. J. K.’s Adoption, Mo.App., 359 S.W.2d 360.

However, it is also held that the adoption statutes, being in derogation of common law, are to be strictly construed in respect to the’ forfeiture of parents’ rights. In re G. K. D., Mo.App., 332 S.W.2d 62; In re P. J. K.’s Adoption, supra, Mo.App., 359, S.W.2d 360. But such construction should not be so narrow as to defeat the manifest intent of the legislature as evidenced by the whole code. The degree of compliance is not literal but substantial. In re McAvoy’s Adoption, supra, 237 Mo.App. 1099, 173 S.W.2d 108 [5]; State ex rel. M. L. H. v. Carroll, supra, Mo.App., 343 S.W.2d 622 [6], One of the frequently made statements is:

“ ‘ * * * in determining whether or not to grant a petition of adoption, ds long as the natural parent’s right to the child is not unreasonably disregarded, the welfare' of the child is of primary importance. * * * State ex rel. Earnest v. Meriwether, supra, Mo., 270 S.W.2d at 22.
“ * * * The rights of defendant to custody and possession of her child are not to be interfered with except where it clearly appears that defendant has forfeited such rights by her own conduct and that the child’s best interest will be served by allowing the adoption. * * * ” In re Slaughter, Mo.App., 290 S.W.2d 408.

The supreme court has said that, even in considering the validity of the adoption proceeding, the welfare of the child is not to be ignored. Robertson v. Cornett, 359 Mo. 1156, 225 S.W.2d 780, 784; see In re K. W. S., supra, Mo.App., 370 S.W.2d 698, 704.

What constitutes willful neglect to provide proper care and maintenance? It is said that, in order to be willful, the neglect must be intentional, deliberate, and without just cause or excuse. In re P. J. K.’s Adoption, supra, Mo.App., 359 S.W.2d 360 [5]; In re Watson’s Adoption, 238 Mo.App. 1104, 195 S.W.2d 331, 337; In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686. The measure of proof in regard to willful abandonment or willful neglect is much the same for-adoption as it is under the juvenile court act. 27 Mo.L.Rev. 391, 396; see In re Hyman’s Adoption, Mo.App., 297 S.W.2d 1; In re Wine’s Adoption, 241 Mo.App. 628, 239 S.W.2d 101. We note that the declarations concerning willfulness have usually been made when neglect was considered in association with abandonment. The two things, “willful abandonment” and “willful neglect,” obviously were intended to provide for different situations; otherwise, there was no reason for providing for either contingency in the statute. The willfulness of abandonment is usually evidenced by a positive act — such as, for instance, taking the child somewhere and leaving it, or leaving it deserted. The will- • fulness of “neglect” on the' other hand is more of a negative proposition, simply the failure to perform the duty with which the parent is charged by-the law and by conscience. The intent therefore must usually be inferred from the facts and circumstances. Such facts and. circumstances would, of course, exclude a finding of willfulness where the neglect occurred because of things beyond the' control of the parent and which were not his fault.

Consideration must also be given to the words “proper care and maintenance.” We doubt if we could adequately define and express the full meaning of such words; or, if such were possible, if it would be advisable to do so. As stated in In re P. J. K.’s Adoption, supra, Mo.App., 359 S.W.2d 360, 366, and in In re K. W. S., supra, Mo.App., 370 S.W.2d 698, 704, no two adoption cases are cast in the same mold. Many varying factors are to be considered, each in relation to all others. What would, or would not, be considered as proper care and maintenance in one case, might, in the light of the whole circumstances of another, be considered entirely differently.

The question of whether the natural father, did, for the space of one year prior to the filing of the petition, willfully abandon or willfully neglect to provide proper care and maintenance (and also whether he made real and worthy repentance of his conduct) was both a factual and a judicial one to be determined in the first instance by the trial court, which saw the witnesses, heard the evidence, made its conclusions of fact, and drew the factual inferences from such evidence. In re McAvoy’s Adoption, supra, 237 Mo.App. 1099, 173 S.W.2d 108; Application of Graham, 239 Mo.App. 1036, 199 S.W.2d 68 [6], And the trial court’s judgment in a case of this kind is not to be set aside unless clearly erroneous and in conflict with the clear preponderance of the evidence disclosing a manifest abuse of discretion. In re J. M. K.’s Adoption, Mo.App., 363 S.W.2d 67, 69; In re Hyman’s Adoption, supra, Mo.App., 297 S.W.2d 1.

We believe that the trial court could reasonably have found that the father did willfully neglect to provide proper care and maintenance for his children for at least one year prior to the filing of the petition, and hence his consent to the adoption was not necessary for the validity of the decree of adoption. We further believe that the welfare of the children is enhanced by the adoption; and for such reasons the decree is affirmed.

STONE and HOGAN, JJ., concur.

      . Filed December 22, 1960.

      . March 5, 1963.

      .On April 4, 1961.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    William BUBKE, (Plaintiff) Appellant, v. ALLIED BUILDING CREDITS, INC., a Corporation, (Defendant) Respondent.
    No. 31149.
    St. Louis Court of Appeals. Missouri.
    June 15, 1964.
    Motion for Rehearing or to Modify Opinion or for Transfer to Supreme Court Denied July 20, 1964.

      Stewart & Bruntrager, Raymond A. Bruntrager, Joseph G. Stewart, St. Louis, for plaintiff-appellant.
    Suelthaus & Krueger, W. W. Sleater, III, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This appeal lately came to the writer by a very recent re-assignment. Plaintiff, a former employee of the defendant corporation, sought by this action to recover both actual and punitive damages for an alleged violation of the service letter statute, Section 290.140 RSMo-1959, V.A.M.S. Trial by jury resulted in a verdict and judgment in favor of the plaintiff for actual damages of $4000 and punitive damages of $6000. The defendant filed a motion for judgment in accordance with its motion for a directed verdict, or, in the alternative, for a new trial. The trial court overruled defendant’s motion for judgment; ruled that it had erred in giving plaintiff’s instruction on substantial actual damages because the evidence was insufficient to justify the submission of that issue; sustained defendant’s motion for a new trial on that one specification but overruled it in all other respects; and granted defendant a new trial on the issue of damages only. Plaintiff alone appealed.

Presumably proceeding on the familiar principle that the best defense is an of- • fense, defendant in its brief has not only attempted to answer the single point raised by plaintiff, but has mounted a two-pronged counter-attack. It contends, first, that plaintiff’s appeal is premature because no final judgment has been entered; and, second, that plaintiff’s action should be dis- ■ missed for failure of plaintiff’s petition to state a claim upon which relief can be granted. If the petition wholly fails to state a claim then we should make a final disposition of the case by dismissing plaintiff's action. But if plaintiff’s appeal is premature then, of course, we are without jurisdiction to entertain it or to pass upon plaintiff’s petition, and our action must " necessarily be limited to that of dismissing plaintiff’s appeal. We will, therefore, con-,-sidefi defendant’s points in their inverse order.. . . ,

Civil Rule. 78.01, V.A.M.R. authorizes the grant of a new trial “on all or part of the issues after trial by jury, court or referee,” as did its source, Section 510.330, .RSMo 1949, V.A.M.S. Our statute on appeals, Section 512.020, RSMo 1959, V.A. M.S., permits any party aggrieved by any judgment of a trial court in any civil action to appeal “from any order granting a new trial.” In Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695, 34 A.L.R.2d 972, it was said: “We construe this language as including the instant order for a hew trial as to the damages issue only. We hold that both plaintiff and defendant, as a party aggrieved by such order, was entitled to appeal therefrom.” And in Page v. Hamilton, Mo., 329 S.W.2d 758, 762, it was held:

“Where, on defendant’s motion after an adverse verdict, the court grants a new trial on the issue of liability only or on the issue of damages only and overrules the motion in all other particulars, the new trial ordered is in effect on the court’s own motion since it is one for which the defendant did not ask in his motion and one which the plaintiff did not seek, and the court’s order constitutes an order granting a new trial under section 512.020 from which both the plaintiff and the defendant, as aggrieved parties, can appeal.”

Defendant attempts to distinguish the Stith case cited by plaintiff on the grounds that there both parties appealed, whereas, in the instant case defendant did not appeal. But as both of the foregoing decisions state, defendant as well as plaintiff was an aggrieved party and had the right to appeal. The fact that defendant chose not to do so cannot prejudice plaintiff’s right to appeal. Either or both parties had the right to do so. Snyder v. St. Louis Public Service Co., Mo., 329 S.W.2d 721. Defendant’s contention that plaintiff's appeal is premature is without merit.

' In his' amended petition on which the case was tried plaintiff alleged that defendant was a Delaware corporation, doing business in Missouri; that he was continuously in its employ from April 11, 1949, until his discharge on March 14, I960; that he had made a written request for a letter of dismissal as provided by the laws of the State of Missouri; that defendant failed and refused to issue to plaintiff a service letter setting forth the nature and character of services rendered by plaintiff to defendant, the duration of said services and the cause for which plaintiff was discharged; that “as a direct result of defendant’s refusal to give plaintiff said letter of dismissal, said plaintiff has been embarrassed and greatly hampered in his attempt to obtain other employment”; and that the defendant’s refusal to give plaintiff the letter of dismissal was willful and malicious. The prayer was for actual damages of $4000 and punitive damages of $6000. Defendant argues that the petition wholly fails to state a claim upon which relief can be granted because, in its words, “Nowhere in plaintiff’s petition does he allege loss of wages as an element of damage.” (Emphasis defendant’s). Defendant has confused plaintiff’s fundamental right to relief with the subordinate issue of the amount of relief. As we pointed out in Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980, no time is specified in Section 290.140 within which an employer must furnish a properly requested service letter, and the law, therefore, allows the employer a reasonable time. When that period of time expires without a letter having been furnished, a cause of action arises in favor of the discharged employee entitling him to a judgment for at least nominal damages, and punitive damages in a proper case. This for the reason that the law presumes that at least nominal actual damages have resulted from the employer’s failure to supply the service letter. It is only where the discharged employee seeks to recover substantial actual damages that he must plead and prove that he was refused' employment for lack of . a service letter. Heuer v. John R. Thompson Co., supra; Van Sickle v. Katz Drug Co., 235 Mo.App. 952, 151 S.W.2d .489. Plaintiff pleaded his discharge, his request for a service letter, and defendant’s failure to furnish one as of the day his suit was filed, May 2, 1960. (One was subsequently given him, as will appear). The time elapsed was sufficient to at least make a submissible issue as to its reasonableness. On its face plaintiff’s petition was, therefore, sufficient to state a claim for at least nominal damages, and hence did not wholly fail to state a claim upon which any relief could be granted.

We turn then to the substance of the action and the merits of plaintiff’s appeal. In that connection it should be said at the outset that the trial court granted defendant a new trial on the issue of damages only because in its opinion there was no evidence that plaintiff sought and was refused employment' for lack of a service letter. Plaintiff contends that in so ruling the court erred, and that there was sufficient direct and circumstantial evidence to warrant the submission of that issue to the jury. This requires a careful review of the evidence. We agree with plaintiff that in determining the question we must view the evidence in the light most favorable to plaintiff and give him the benefit of all reasonable inferences to be drawn therefrom; and, of course, must disregard defendant’s evidence unfavorable to plaintiff. Roberts v. Emerson Electric Mfg. Co., Mo., 338 S.W.2d 62.

Plaintiff’s evidence was that upon his graduation from Stanford University he entered defendant’s employ as a trainee on April 11, 1949. He was first assigned to the defendant’s Seattle office. Over the succeeding years he' was transferred to other offices, at first to Portland Oregon, and later to Birmingham, Alabama, and advanced in rank, until in April, 1953, he came to St. Louis as Office Manager., In 1956 he was promoted to the position of Manager, in charge of the St. Louis office, at a salary of $8500 per year, plus a bonus in an unstated amount. Plaintiff testified that on Friday, March 11, 1960, one C. A. Nichol, Vice-President and Comptroller and Chief Personnel Officer, arrived in St. Louis from the Company’s home office in Los Angeles. He gave plaintiff no reason for his unannounced visit. Because of pri- or appointments plaintiff was out of his office most of the day and saw little of Nichol. He did see Nichol the next day, and again on Monday, March 14, hut it was not until about 2:00 P.M. of the latter day, and after Nichol had made a long distance telephone call to R. D. Syer, the Company’s President, that Nichol told plaintiff the management was dissatisfied with his performance as to profits and would not continue his employment. Plaintiff admitted that making a profit in the St. Louis office had been a problem when he came there, and had continued to be a problem during his tenure as Manager. Nichol, according to plaintiff, suggested that he offer a letter of resignation but he declined to do so because he had not resigned.

Plaintiff testified that he started to seek other employment two days after he had been discharged. Between that time and May 2, 1960, when this suit was filed, he made application with Missouri State Employment Service, answered newspaper advertisements and contacted friends and business acquaintances to request their assistance in obtaining employment. He did not confine himself to the field of installment loans and financing, in which he had been engaged while working for defendant, but also sought an administrative position. Plaintiff stated that he contacted about 40 concerns in person, by telephone, or by answering newspaper advertisements, of which number at least 20 were personal interviews. His interviews were with men in the larger St. Louis banks, and with persons in such firms as McDonnell Aircraft, Anheuser-Busch, Falstaff Brewery, Brown Shoe, and General Shoe. There is no evidence in the record that any of plaintiff’s personal interviews resulted from the newspaper advertisements which plaintiff answered. To the contrary, the record indicates that plaintiff called upon friends or business acquaintances in some of such firms, or that he applied for employment on his own volition and not in response to any advertisement for help. In fact, there is nothing in his testimony or elsewhere in the record which would support an inference that the firms interviewed had positions open of the character plaintiff was seeking, nor any at the salary of $7200 to $8000 which plaintiff quoted during the interviews.

For example, one of the men with whom plaintiff had a personal interview was Mr. Paul H. Young, Vice-President of the Boatmen’s National Bank of St. Louis, in charge of its Consumer Credit Division, who appeared as a witness on behalf of plaintiff. Mr. Young recalled that plaintiff called on him on Thursday or Friday of the week of March 14, seeking employment. He knew that plaintiff had worked for the defendant for several years. On direct examination he testified:

“The conversation with Mr. Bubke was, of course, directed at possible employment with Boatmen’s Bank— (interruption by counsel for plaintiff)— it was explained to him that at the moment there were no openings; *

On cross examination he was asked and answered:

“Q. At that time, Mr. Young, were there any positions open at Boatmen’s Bank in the category Mr. Bubke had experience in, or was he requesting . that—
.“A. At that moment in my department of the Boatmen’s Bank there was no position of the type, although, you never know when openings occur.”

Mr. Young also testified on direct examination that plaintiff did not have a service letter at the time of the interview, that because of his knowledge of plaintiff he told plaintiff he would be glad to give plaintiff consideration, but that it was necessary for plaintiff to have some definite information concerning his severance, and that he asked plaintiff whether he had any sort of severance letter or letter of dismissal. Young continued, “and it was explained to me (presumably by plaintiff) that he had no knowledge of the reason for his severance.” On cross-examination Mr. Young made it clear that he would never have been able to make the final decision as to employing plaintiff, had there been an opening, but only to recommend plaintiff and that he would not recommend plaintiff before he had full knowledge as to the reason for the termination of plaintiff’s employment with defendant. The bank did not conduct its own investigation from former employers, Young stated, because of the cost involved. A letter of dismissal verifying the cause of dismissal, according to Young, would make a difference in making a determination.

Plaintiff testified that some of the firms he contacted seemed interested in him, but that he was not offered any position nor did he turn one down. He stated that in his numerous interviews he was never asked to produce a letter of dismissal. However, plaintiff also said that nearly all of the persons who interviewed him dealt at some length upon the circumstances of his separation. He added:

“I can’t say that they didn’t believe what I told them but without exception, when they showed any interest at all, instead of getting around to the matter at hand, at what I could do for them or could I get a job with them, they seemed to want to heat this horse, why I left such a good job at this point and all of that.”

According to plaintiff, he remained unemployed until he obtained a position with the National Aeronautics and Space Administration of Huntsville, Alabama, on May 7, 1961, at a salary of $7560 a year.

Since plaintiff’s appeal concerns only the issue of damages there is no need to relate plaintiff’s efforts to obtain a service letter. It is sufficient to say that plaintiff twice requested in writing a letter of dismissal, to which letters he received answers but no service letter. It was not until May 19, 1960, more than two weeks after this suit was filed, that plaintiff received a service letter. Defendant’s excuse was that it was unaware of our service letter statute.

The rule to be applied in determining the question presented is well-established. In cases of this nature, where a discharged employee seeks to recover substantial actual damages, it is incumbent upon him to produce evidence that he sought and was refused employment by reason of his not having a service letter from his former employer. Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980; Cook v. Mid-Continent Petroleum Corp., Mo.App., 193 S.W.2d 66; Soule v. St. Joseph Ry., L., H. & P. Co., 220 Mo.App. 497, 274 S.W. 517. While the fact may be established by circumstantial as well as direct evidence, Burens v. Wolfe Wear-U-Well Corp., 236 Mo.App. 892, 158 S.W.2d 175, the circumstances must be such as will sustain the inference to be drawn, and must rise above the level of mere guess and speculation. Using those rules as our standard, we are of the opinion that the evidence together with the reasonable inferences to be drawn therefrom were not sufficient to justify the submission of the issue of substantial actual damages. It is true that plaintiff testified that he sought and obtained numerous interviews in his search for employment, and his diligence in that regard is to he commended. There is no evidence that any of such interviews resulted from newspaper or other advertisements for help, nor any indication that plaintiff had been referred to a firm by the Missouri State Employment Service or any other agency. Many, if not most, of such interviews seemingly were with the friends and acquaintances whose assistance plaintiff solicited in seeking employment. The fatal weakness in plaintiff’s case is that there was no evidence to show that at the time of his interviews any of the firms plaintiff contacted had an opening in a position for which plaintiff was qualified. Nor is there any indication that an opening subsequently occurred which was not tendered to him because of his lack of a service letter. It is obvious that unless a position was or became open there could be no failure or refusal of employment, regardless of whether or not he had a service letter. Reduced to the essentials, all that plaintiff’s evidence as to the interviews show is that he applied for a position, that the reason for his discharge was discussed and explained, and that no employment was tendered him. To conclude from such evidence that plaintiff was not employed because of his lack of a service letter we would have to speculate and presume, first, that a suitable position was open; and second, that it was refused plaintiff because he had no letter. We have not overlooked the evidence regarding the interview with Mr. Young. In fact the Young incident supports our view, for he testified that at the time of the interview there was no opening, and there was no evidence that one subsequently occurred.

Plaintiff argues that the evidence showed he answered newspaper advertisements, and that there must have been jobs available because prospective employers do not spend money placing want ads for openings they do not have. We readily concede that they do not. But on that subject all that plaintiff testified to was that, “I answered inquiries in newspapers.” There was no other evidence as to the nature of the advertisements, the kind of response plaintiff wrote, or whether he received a reply to any of his letters. More important, there was no evidence that the subject of his former employment or the reason for his separation therefrom arose, or that he was refused employment because he did not have a service letter. In brief, we concur with the view of the trial court that there was no evidence to justify an award of substantial actual damages and that it erred in giving Instruction No. 2.

Defendant contends that the court also erred in submitting to the jury the second paragraph of plaintiff’s Instruction No. 2, relating to punitive damages, because there was no showing of actual or legal malice. The point is not inherent in plaintiff’s appeal, and since defendant failed to appeal it is doubtful whether defendant is in a position to raise it. However, inasmuch as the entire issue of damages is to be retried we will consider it. Plaintiff tacitly concedes that there was no evidence of actual malice, but argues that the evidence was sufficient to justify the submission of legal malice. As plaintiff points out, he twice requested in writing a service letter and was twice refused. Defendant has committed the common error of assuming that because its witness testified to something (that they did not supply the letter because they were unaware of the statute), the jury was bound by its evidence. Of course, the jury was not bound and could accept or reject such evidence as it saw fit. Furthermore, defendant is presumed to know the law, Brown v. Wooderson, Mo., 362 S.W.2d 525; Poe v. Illinois Central R. Co., 339 Mo. 1025, 99 S.W.2d 82, and its failure to furnish the letter “cannot be excused by plea of ignorance of the law.” Stephens v. Lever Bros. Co., Mo.App., 155 S.W.2d 540, 543. We agree that the evidence was sufficient to justify the submission of the issue of punitive damages on the theory of legal malice. Stephens v. Lever Bros. Co., supra; Bourne v. Pratt & Whitney Aircraft Corp., Mo.App., 207 S.W. 533; Davenport v. Midland Bldg. Co., Mo.App., 245 S.W.2d 460.

Since the issue of damages must be retried, and plaintiff will have an opportunity to reconsider and redraft all of his instructions on that subject, it is unnecessary for us to consider defendant’s complaints regarding certain alleged deficiencies in those which were given in the first trial.

The order of the trial court granting a new trial on the issue of damages only should be affirmed ánd the cause remanded.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, the order of the trial court granting a new trial on the issue of damages only is affirmed and the cause is remanded.

RUDDY, Acting P. J., and SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.


text:
    William R. DAVIS, Claimant-Employee, Respondent, v. Barnet BREZNER, Employer, Appellant. Fireman's Fund Insurance Company, Insurer.
    No. 8302.
    Springfield Court of Appeals. Missouri.
    May 28, 1964.
    Motion for Rehearing or to Transfer Denied June 30, 1964.

      Orville C. Winchell, Lebanon, for appellant.
    Claude T. Wood, Richland, Jay White, Rolla, for respondent.
   RUARK, Presiding Judge.

This is an appeal by the employer in a workmen’s compensation case involving a shoulder injury. Claimant Davis was bent, over in the bottom of a ditch astraddle of an eight-inch pipe which he was fitting. The ditch was thirteen and one-half feet deep. Along the top of the ditch was a pile or row of loose dirt four feet high. Atop the dirt was a rock, described as “about the size of a steering wheel” and estimated to weigh seventy-five to one hundred pounds. A workman dislodged the rock. It went down the dirt, into the ditch, and struck claimant in the upper part of the back between the shoulder blades and the left shoulder. Claimant rej ected an offer to take him to a physician because he preferred to go to Dr. Cottingham, his family physician. Dr. Cot-tingham testified that he found an abrasion and some discoloration indicating a bruising of muscle fibers.

Chronologically:

June 30, 1960, the accident occurred. There is no serious dispute as to this.

July 1 to July 11, 1960, claimant was treated by Dr. Cottingham, D. O. of Rolla, Missouri, the physician of his choice.

July 11, 1960, Dr. Cottingham discharged claimant as able to go back to work.

August 16 through September 20, 1960, Dr. Cottingham again treated claimant. Claimant told him he had aggravated his shoulder by using a jackhammer on August 12.

September 23,1960, claimant told Dr. Cot-tingham he was going to the V. A. Hospital in St. Louis.

October 10,1960, claimant returned to Dr. Cottingham and asked him for a statement that he was physically able to work. The doctor gave the statement.

March 21, 1961, claim for compensation was filed.

October 25, 1961, claimant went back to his family physician for a re-examination. Dr. Cottingham, as will appear more fully hereafter, felt that claimant was not suffering from any disability.

March 20, 1962, he was examined by claimant’s witness Dr. Ward of Richland, Missouri, who classified himself as a semiretired ex-army surgeon engaged in general practice.

July 18, 1962, he was examined by employer’s witness, Dr. Francis, an orthopedic surgeon of Springfield, Missouri.

January 15,1963, hearing was had before the referee who found claimant had sustained permanent partial disability to the body as a whole to the extent that he was entitled to forty weeks compensation with no healing period. The commission adopted and made its award upon the findings of the referee. This was sustained by the circuit court and the employer appeals

Claimant continued as an employee after the accident and was paid wages until sometime in September or October, 1960; but he says that during this period he did light work or no actual work at all, although he was on the payroll. Then he drew unemployment compensation. He says he drew “approximately around four hundred dollars” unemployment. Thereafter he says he worked for “one or two days” for an electric company, and then (time not clear) he started on a construction job as union steward and foreman. His pay scale on this work is higher than the wages he was drawing at the time of the accident. He testified that on this job he is not required to do any heavy work or lifting. His work consists largely of walking around telling the men what to do. Apparently (although the evidence is not very clear) he was still holding this job at the time of the hearing before the referee.

Claimant testified that prior to the accident he had had no trouble with his back but that after the accident he had pain in his back’bctween his shoulder blades which ran up into his neck; that, as to the left arm,' “get it in a twist and it would hurt, the leaders would swell up in my neck and knot up.” Prior to the injury he could use a jackhammer or pavement breaker or “bust rocks,” but afterwards he couldn’t do so-without pain; that, although the past year prior to the hearing (on January 15, 1963) he had worked “pretty steady,” he didn’t do any heavy lifting or pick up anything which weighed more than three pounds. As to the condition existing at time of hearing: “This arm here it — whenever I work it up and down it gets pretty sore in there and it becomes kinda weak * * * in the top of my shoulder and down back of my shoulder blade * * * left shoulder blade * * over work or any kind of a twist or lift on my left side.” He said he had been able to abduct his arm (bring the arm out from the side of the body)' for about a month, “since you [claimant] have been taking shots from Dr. Ward here recently? A. Yes.”

Claimant’s witness Dr. Ward (who first examined him on March 20, 1962) testified that he made abduction tests by having claimant raise his arm from the side of the body and by applying pressure to various points on his back and shoulder. He said that claimant indicated pain at an exact location which is the point where the su-prascapular nerve comes out from under the scapula. The suprascapular nerve is a motor nerve which directs the activity of the supraspinatus muscle which in turn initiates abduction of the arm. Pie agreed that -the symptoms were entirely subjective and that he had to take claimant’s word that he suffered pain on pressure; but he felt that he had guarded against malingering by repeatedly applying pressure at various points and each time getting the same response at the same location. His conclusion was that claimant had suffered an injury to the su-prascapular nerve and that this had resulted in a neuritis which was probably traumatic in origin. He agreed that claimant had full range of motion except for difficulty in get- - ting started ' on abduction. He had no atrophy or loss of strength. He said that in September 1962 claimant wasn’t getting any better and “I put him on Vitamin B1 and Thiamine Chloride.” He felt that the neuritis was paroxysmal. As to permanency or continuance,. he stated, “Well, if they are going to recover, they usually recover and get — oh, in approximately — oh, we would dogmatically give them a year”; and “If it’s traumatic and it persists for two years, I’d say it is quite a likelihood it would persist indefinitely without some type of surgery.”

Dr. Cottingham, claimant’s personal physician, testified as a witness for the employer. He stated that in his opinion the claimant had recovered from his injury when he examined him on October 10, 1960, and re-examined him on October 25, 1961; that he found no evidence, x-ray or otherwise, of any injury or disease which would affect the nerve or nerve supply, no limitation of motion, no atrophy or wasting of muscles. It was his opinion that claimant had fully recovered and was not suffering from disability.

Employer’s witness, Dr. Francis, who examined claimant on-July 18, 1962, testified that he found no evidence of orthopedic disability or anything else physically wrong, no loss in either supraspinatus or deltoid muscles, nothing unusual in shoulder contour or muscle size or atrophy. The claimant had full range of motion. He said that in connection with his tests and examination he observed claimant in movements of his arm. He was of the opinion that claimant had perfect movement of his arm and neck muscles, that the objective findings did not sustain claimant’s complaints, and that claimant had no physical disability. He further stated that injuries to the area said to be involved are usually of short duration, and the’nerve, if injured, would regeneraté.!

One assignment of error deals with a hypothetical question put to Dr. Ward:

Doctor, assuming that this claimant was working in a ditch on June the 30th, 1960, assume further that the claimant was—that this ditch was approximately thirteen and a half feet deep, assuming there was dirt on top of the ground—on top of the surface of the ground, assuming there was a rock on top of that dirt, assuming that that rock fell a total of approximately sixteen feet and struck this—this large rock fell a distance of approximately sixteen feet and struck this claimant on the area which you have described, the left shoulder, blade, I’ll ask you if in your professional opinion the condition which you concluded that existed in the supraspinatus muscle on your examination of March 30, 1960, to [iic] arose out of this assumed accident?

Objection was made on the ground the question did not incorporate all the facts. The objection was overruled and the witness answered:

I’d say that in all probability trauma caused it. In the report I wrote to Counselor White it is my opinion this man has neuritis of the suprascapular nerve probably traumatic in origin.'

The complaints here are that (a) the question improperly stated the date of the accident and the distance the rock fell, and (b) it did not incorporate the present physical condition of claimant nor did it include the work which claimant had done since the accident or the fact that the condition could have been the result of either injury or disease.

The date of the accident is stated correctly. As to the distance the rock fell, a witness stated “it fell from the top of the bank, up in the dirt, running up and down the loose dirt, probably sixteen or seventeen feet.” We feel that under the circumstances the use of the words “approximately sixteen feet” was not such a variation from the facts as to contaminate the answer.

Dr. Ward had already testified that neuritis could come either from a systemic infection or from trauma but that, since the claimant gave a history of having been struck by a falling stone, he would conclude the condition resulted from trauma. Thus the hypothetical question covered practically the same ground already testified without objection. This hypothetical question does not go to the extent or permanency of the injuries but, as we view it, only to the causation. As to causation, it is sufficient that the finding be supported only by reasonable probability. Smith v. Terminal Transfer Company, Mo.App., 372 S.W.2d 659, 664; Groce v. Pyle, Mo.App., 315 S.W.2d 482.

The proponent of a hypothetical question is not required to cover all the evidence in the case. He is required only to include such facts in evidence as to support his theory. Sneed v. Goldsmith, Mo.App., 343 S.W.2d 345; Huffman v. Terminal R. Ass’n. of St. Louis, Mo., 281 S.W.2d 863, 870. And since the inquiry called only for an answer as to whether the condition (of neuritis) resulted from the assumed accident (which is not seriously disputed).—■ i. e., cause and effect—it was unnecessary to incorporate or hypothesize all the facts which might bear on the permanency of the injuries.

A more serious contention of error is made because the rating was based upon ten per cent disability to the body as a whole rather than for a specific scheduled injury. The “catchall” portion of Section 287.190 RSMo V.A.M.S., gives the commission a wide discretion in rating injuries which affect the body as a whole, and it is not limited to the medical evidence giving ratings to specific portions. Barron v. Mississippi Lime Co. of Mo., Mo.App., 285 S.W.2d 46; Komosa v. Monsanto Chemical Co., Mo., 317 S.W.2d 396; Henderson v. Laclede Christy Clay Products Co., Mo.App., 206 S.W.2d 673. Here the injury claimed was said to be to a nerve in the shoulder, but the effect of that injury was as to the function of the arm in abduction. A somewhat similar situation confronted the court in Bumpus v. Massman Construction Company, Mo.App., 145 S.W.2d 458. Since that case held that the standard of measurement could be the percentage of disability of the body as a whole, we feel the question is settled, and the commission’s rating on that account cannot be held to be erroneous.

We have more difficulty with appellant’s remaining contention' — viz., that the finding of permanent partial disability was based on conjectural, speculative, and questionable evidence. As we have stated, the finding as to the cause of injury need be based only on reasonable probability. But a finding as to permanency of injuries must be based upon evidence which produces a reasonable certainty (Russell v. Kansas City Public Service Co., Mo.App., 276 S.W.2d 644; Hammett v. Nooter Corp., Mo.App., 264 S.W.2d 915; Kiger v. Terminal R. Ass’n. of St. Louis, Mo., 311 S.W.2d 5, 14), although absolute certainty is not required. Garrison v. United States Cartridge Co., Mo.App, 197 S.W.2d 675; Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131. The claimant has the burden of proving duration and extent of disability. Smith v. National Lead Co., Mo.App., 228 S.W.2d 407. But the fact that claimant has been able to work and draw wages is not conclusive against an award for permanent partial disability. Franklin v. St. Louis Independent Packing Co., Mo.App., 360 S.W.2d 350; Cole v. Best Motor Lines, Mo.App., 303 S.W.2d 170.

Two doctors testified that there was no existing injury or disability. One doctor testified as to the existence of the injury and disability and as to its permanency. Where there is a conflict of medical opinion and theory, the commission of necessity has authority to choose between them. Greer v. Missouri State Highway Dept., Mo.App., 362 S.W.2d 773; Joiner v. Farmers Exchange Cooperative Ass’n, No. 304, Mo.App., 368 S.W.2d 547. Quite obviously it chose to give credence to the claimant’s medical witness Ward and to disregard the evidence of Doctors Cotting-ham and Francis. Dr. Ward said there is “quite a likelihood” the disability would persist indefinitely without some type of surgery. No such operation was tendered. The surgery question was not developed as to extent, risk, or probability of recovery sufficiently that an intelligent opinion can be formed as to its desirability or practicality. All we get from such testimony is that a possibility of recovery by corrective surgery exists. See Hammett v. Nooter Corp., supra, 264 S.W.2d 915, 918.

We doubt that the words “quite a likelihood” taken alone express a reasonable certainty; but they must be interpreted in the light the witness intended them to express his thoughts. In Ballard v. Kansas City, 110 Mo.App. 391, 86 S.W. 479, the words “in all likelihood” were interpreted to express reasonable certainty. The doctor’s expression as to permanency need not necessarily be in express terms. See Hammett v. Nooter Corp., supra. Our conclusion is that permanent partial disability as found under the “catchall” part of Section 287.190 RSMo, V.A.M.S, can be inferred from the whole evidence, al though there be no single positive declaration to that effect. The commission is not solely dependent upon medical evidence. The finding is to be made from the whole evidence. Barron v. Mississippi Lime Co. of Mo., supra; Worley v. Swift & Co., Mo. App., 231 S.W.2d 828, 832. The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability (Walker v. Pickwick Hotel, Mo.App., 211 S.W.2d 55, 58; Oertel v. John D. Streett & Co., Mo.App., 285 S.W.2d 87; Conley v. Meyers, Mo., 304 S.W.2d 9; see Rexroad v. Schultz Folding Box Co., Mo.App., 261 S.W.2d 493; Maddux v. Kansas City Public Service Co., Mo.App., 111 S.W.2d 208), especially when taken in connection with, or supported by, some medical evidence. Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306, 310. The commission is the judge of the facts, and the rule of deference as to oral testimony applies. Lindsay v. George F. Schulenburg Barrel & Drum Co., Mo.App., 227 S.W.2d 503; Henderson v. Laclede Christy Clay Products Co., supra.

The claimant testified that he still suffered from the disability at the time of the hearing, which was more than two and one-half years after the accident. It is true that the mere continuance of the disability is not in and of itself necessarily proof of permanency. Leavitt v. St. Louis Public Service Co., supra; see Heibel v. Robison, Mo.App., 316 S.W.2d 238. But it is a factor to be considered (see Toombs v. Deitz Hill Development Co., Mo.App., 159 S.W.2d 317, 319), especially in view of the testimony of the medical witness, whose testimony the referee and the commission chose to credit, that the conditions testified to which continued for such length of time are likely to be permanent.

It is of no moment that we might have reached a different conclusion on the evidence, for we cannot substitute our judgment on the facts. If the commission could reasonably have made its finding from competent and substantial evidence, we are bound to affirm. Davis v. Day-Brite Lighting, Inc., Mo.App., 366 S.W.2d 84; Brotherton v. International Shoe Co., Mo.App., 360 S.W.2d 108. Bearing in mind that our review is of the whole record and that we must accept all facts and legitimate inferences therefrom in the light most favorable to the award (Cross v. Crabtree, Mo.App., 364 S.W.2d 61, 64; Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344[1]; Mabry v. Tiffany Stand Co., Mo.App., 235 S.W.2d 863), we feel we are bound to affirm. It is so ordered.

STONE and HOGAN, JJ., concur.


author: BRADY, Commissioner.

text:
    Francis R. ARMSTRONG and Mildred Armstrong, His Wife, Plaintiffs-Appellants, v. WESTROADS DEVELOPMENT COMPANY, a Corporation, et al., Defendants, Stix, Baer & Fuller Company, a Corporation, and City of Richmond Heights, Missouri, a Municipal Corporation, Defendants-Respondents.
    No. 31103.
    St. Louis Court of Appeals. Missouri.
    June 15, 1964.
    Rehearing Denied July 20, 1964.

      Kerth, Thies & Schreiber, C. Kenneth Thies, Dalton W. Schreiber, Clayton, for plaintiffs-appellants.
    Bryan, Cave, McPheeters & McRoberts, St. Louis, Thomas V. Connelly, for defendant-respondent Stix, Baer & Fuller.
    Louis A. Robertson, St. Louis, for defendant-respondent City of Richmond Heights.
   BRADY, Commissioner.

This case was very recently reassigned to the writer. The action was originally brought against the respondents, hereinafter referred to as “Stix” and “Richmond Heights,” and three other corporations who are subsidiaries of the defendant Stix. These are Westroads Realty Company, Westroads Development Company, and Clayton Road Development Company, hereinafter referred to as “Clayton Road.” The trial court sustained motions to dismiss as to both of the Westroads corporations. The jury returned a verdict in favor of the defendant Clayton Road and against the defendants Stix and Richmond Heights in the amount of $2,000.00. Upon timely motion the trial court set aside the verdict as to Stix and Richmond Heights and entered judgment in their favor. From that judgment the plaintiffs appeal. They do not challenge the jury’s verdict in favor of Clayton Road, and neither do they appeal from the trial court’s action dismissing this cause as to Westroads Realty and Westroads Development Companies.

The plaintiffs’ petition alleged their ownership of Lot #18 in Berkshire, a residential subdivision in St. Louis County, and that “ * * * said creek is a source of drainage of said property * * It further alleged that in connection with the development of Westroads Shopping Center the defendants “ * * * enclosed said ‘Black Creek’ in a long, concrete tube along the western end of said shopping center and within the city limits of the Defendant City of Richmond Heights, Missouri, and by said act Defendants have deprived Plaintiffs of the natural source of drainage of surface waters from their said property.” The petition further alleged “[tjhat as a proximate result of said wrongful act on the part of Defendants in enclosing said creek, * * *” plaintiffs had suffered-certain monetary damages as a result of their property being made wet, boggy, and unusable and due to the loss of “a great number” of shade trees.

In order to assist in understanding the relative positions of the lands involved, we have caused one of the exhibits to be reproduced in this opinion. In addition we have placed two arrows on this reproduction, marked “A” and “B”, to indicate the direction in which the parties contended surface water flowed from plaintiffs’ lot prior to defendants’ work. The plaintiffs’ property is approximately two' acres in area with the front thereof being about thirty feet higher than the rear. Other lots in the subdivision and the Immacolata Church and School property are also higher than the rear of plaintiffs’ lot so that plaintiffs’ testimony was that water from some ten acres of land drained down across the rear of their lot. There were catch basins located at different points which helped collect this water. Two of these are located on either side of Ashmere Drive in front of Lot #16. The water from these catch basins flowed through IS inch pipes that were buried on the property line between the lots. These pipes opened up at the rear of the lots. This water and surface water generally then ran down a ravine which ran along the property line separating the lots from the Immacolata property and also separating plaintiffs’ lot from the park area. Three other catch basins were located as shown on the drawing included in this opinion and which emptied water through a 15 inch drain running parallel to Eastfield Drive and opening at the rear of Lot #48. East-field Drive is a paper street only. It does not exist as a street. At the time plaintiffs constructed their house on Lot #18 there was a water problem existing in the rear of their lot. To alleviate this condition the plaintiffs placed an earthen embankment, a kind of a dam, along their land as it bordered the ravine to prevent this water from flowing on their land. They also constructed a dam along Eastfield Drive to keep the water collected by the second group of catch basins from coming onto their land. These measures succeeded in keeping the plaintiffs’ land dry until defendants began their construction.

There is a serious dispute as to the direction in which the surface water which reached the rear of plaintiffs’ lot found its way into the old channel of Black Creek. The defendants’ evidence was to the effect that this water left the rear corner of plaintiffs’ lot, trickled across what would have been Eastfield Drive, continued on its way across the very rear portion of Lot #48 and then meandered across the property of Clayton Road eventually emptying into Black Creek near Hoover Avenue in the manner shown by Arrow “A”. As stated, this was the defendants’ evidence. It was denied by the plaintiffs, and we are cognizant that for the purposes of this appeal we are to view the evidence in the light most favorable to the plaintiffs. However, we have grave difficulty in determining just what plaintiffs’ evidence was. In plaintiffs’ brief the following appears: “ * * * The Plaintiffs’ evidence is that said water flowed Northeast from their lot across the Park Area, finding its way into Black Creek at the first bend in the channel thereof after Black Creek crossed Clayton Road (R. 131, 132, 173,174, 175,179,180,181, 182, 183, 186, 209, 210, 211, 212, 215, 216, 247, 252, 253, 255).” There is absolutely nothing with regard to this issue that appears in the record at pages 255, 252, 247, 216, 215, 212, 211, 210, 179, 174, 173, 132, or on page 131. Presumably, those pages were cited to add numerical emphasis to the plaintiffs’ statement. All that appears on page 175 is that the ravine catches the water from the other properties and “[c] arries it on past lot 18 into Black Creek.” It does not state where in Black Creek the water enters. The only thing on this issue that appears on page 209 is that plaintiff’s answer that the surface water “ * * * trickled over into rivulets into Black Creek when I first started out there.” This again is of no assistance to help us determine where the water went into Black Creek before the defendants’ work began. On page 183 of the record the plaintiff denied that the water left the rear of his property and entered Black Creek near Hoover Avenue as defendants contended. On pages 185 and 186 of the transcript the following appears: “Q Where did the drainage come from your property? Can you again point out the direction the drainage from your property — A My remembrance is it came across here down through here into the old Black Creek (ind.). Q Would that be west of Stix’s property or would it be down here on Stix’s property (ind.) ? A No, it would be west of Stix’s property. Q And the water drained off your property west of Stix’s into Black Creek Channel? A Into Black Creek Channel. Q Right at the point— A I don’t know what point — the water came down here and on over- — does this show any tributaries where all the water came off of Immacolata and that park — any tributaries going into the creek —there’s water flowing off— Q Mr. Armstrong, isn’t it a fact that between the back of your property and Black Creek Channel there was a ridge and the water didn’t flow to the north but flowed to the southeast into this channel? A I don’t think so.” In the record at pages 179 through 182 this issue was dealt with on cross-examination. The plaintiff was asked to point out on one of the exhibits where the waters crossed his lot and “ * * * how they left your lot prior to the time this culvert was installed ?” His answer was as follows: “A Well, I can show you approximately but I can’t show you definitely because nobody could find a corner of the lot back there at that time.” Following this he was again asked: “Q Do you know where the water drained off your property into the old channel? A No; in my estimation they came right across here and came into this Black Creek Channel. Q You are pointing, I believe, Mr. Armstrong, across the park area from Stix’s property and Immacolata Church and to the first bend in the channel after it crossed Clayton Road? A I don’t know whether it’s the first channel because when you stand in this yard you are completely messed up on directions — it’s not easy because the lot is on a curve. You don’t know which direction you are pointing. I say the water came off this lower corner and went on into the Black Creek in there (ind.) somewhere. Q You are pointing that the water left your property in a general northeastwardly direction ? A No, southeastwardly direction. Q This is north up here (ind.). A That’s a south-eastwardly direction. Q. And this would be south down here (ind.) ?” In the record at page 182 he reiterated that this surface water drained to the southeast and into Black Creek. The southeast is the general direction in which defendant contends that the water drained, eventually emptying into Black Creek at Hoover Avenue. Parenthetically, we might again state that it is of no assistance to an appellate court reading the record and trying to determine to what area a witness was testifying to have questions phrased and answers made in such general language as “north up here (ind.)” or “south down here (ind.)” or “right about here” and other similarly phrased questions and answers.

The point of this dispute as to the direction of the flow of surface water from plaintiffs’ property prior to the acts of the defendants is that if the water flowed as defendants contend, then obviously the plaintiffs failed to make a case. This for the reason that since the surface water entered Black Creek after the new culvert ended, it was not the defendants’ actions in enclosing Black Creek that prevented the drainage of surface water from plaintiffs’ lot, but was the grading up of defendant Stix’s property to the property line that prevented the flow of surface water. There would therefore be no causal connection between the defendants’ acts as submitted in the instruction and plaintiffs’ damage. See the cases collected in “Surface Water in Missouri,” an excellent article appearing in 24 Mo.Law Rev. 138. While the record on this issue leaves much to be desired, we believe that reading the whole transcript in the light required of us requires that we construe the plaintiffs’ evidence to be that the surface water ran off of their lot in the direction of the arrow marked “B” on the reproduction included in this opinion and entered the old channel of Black Creek at the first bend after Black Creek crossed Clayton Road.

When the defendant Stix began developing Westroads Shopping Center, it recognized that the grading up of the property now used as a parking lot would create a surface water problem at the rear of plaintiffs’ lot. In connection with the regrading and the paving of this parking lot a portion of Black Creek was to be enclosed in a large concrete culvert as shown on the exhibit reproduced in this opinion. To provide for this culvert Clayton Road, Dr. Magee, the owner of Lot #48, and the park area trustees granted to the city of Richmond Heights an easement strip SO feet wide. It was along this easement that the large culvert- was laid, and it appears in the exhibit reproduced in this opinion as the “new channel.” After this culvert was laid, the grade was raised by the addition of dirt and regrading so that the top of this culvert was below ground. To alleviate the surface water problem, the existence of which had been anticipated, an 18 inch drain line was laid from the rear of plaintiffs’ lot across Eastfield Drive to the rear of Lot #48 and culminating in an underground opening in the side of the culvert carrying the new channel for Black Creek. A stop gate was erected where the 18 inch culvert entered the new channel culvert so that when the new channel was full, water would not flow back into the 18 inch pipe and thus back on Lots #18 and #48.

Richmond Heights did not adopt any ordinance providing for the relocation for the channel of Black Creek nor for any ordinance providing for the construction of the culvert containing the new channel. It did install the 18 inch drains running from the rear of Lot #18 and Lot #48 to the new culvert.

The evidence was that after this work was done, the rear of plaintiffs’ .lot became very marshy and unusable and that winds easily uprooted trees located in that area.

■ As previously' indicated herein, the jury did find for the plaintiffs and assessed their damages at $2,000.00. This verdict was returned against the defendants Stix and Richmond Heights. The jury returned a ■verdict in favor of the defendant Clayton Road.. The City of Richmond Heights filed a separate motion to set aside this verdict and to enter judgment in accordance with its motion for its judgment or in the alternative for a new trial. The defendant Stix filed its timely motion to set aside the judgment and to enter judgment in its favor. It is to be noted that the defendant Stix did not couple that motion with a motion for a new trial. The trial court sustained the motions of both defendants to set aside the verdicts in accordance with their motions for a directed verdict and entered its judgment in their favor. The trial court’s order is as follows: “* * * Motion of Defendant City of Richmond Heights to set aside verdict.and enter judgment in accordance with its motion for directed verdict sustained for the reasons stated in Sections 1 and 2 and paragraphs thereof; Motion of Defendant. Stix, Baer & Fuller Company to set aside Judgment in favor of Plaintiff and enter Verdict and Judgment, in favor of Defendant Stix, Baer & Fuller Company sustained for the reasons stated in paragraphs 1 and 2.” Since the motion for directed verdict offered at the close of all the evidence by the defendant Stix and by the defendant Richmond Heights does not contain any paragraphs but is merely based on the contention that the plaintiffs failed to make a sub-missible case, the paragraphs referred to in the trial court’s order must be paragraphs 1 and 2 of their after-trial motions. There are two paragraphs to defendant Stix’s after-trial motion, and these amount to a contention that the plaintiffs have failed to make a submissible case. The defendant Richmond Heights’ after-trial motion to set aside the verdict and to enter judgment in its favor does hot contain two paragraphs - but does'contain paragraph 1 with subpara-graphs A through H. Essentially, these, amount to a contention that the plaintiffs failed to make a submissible case. The second paragraph of the motion filed by the defendant Richmond Heights deals entirely with its motion for new trial, a motion that was not granted by the trial court. Accordingly, we must assume that the trial court intended to rest its ruling as to both defendants upon the basis that the plaintiffs had failed to make a submissible case as to either.

In the determination of that issue we must have reference to the submission made by the plaintiffs. The plaintiffs’ verdict-directing instruction begins with the following statement: “The court instructs the jury that it is the law that one may not obstruct a natural water course without liability for resulting damages to others who may be adversely affected thereby.” This abstract statement of law is then followed by hypothesizations which require the jury to find that Black Creek was a natural watercourse and “the source of drainage of surface waters from the property of the plaintiffs”; that the defendants “enclosed said Black Creek in a long underground concrete tube” ; that the enclosure of Black Creek in this tube “* * * deprived, blocked or impeded plaintiffs of the natural source of drainage waters from their said property”; and that as a result thereof the plaintiffs’ property had became marshy, boggy and wet and that plaintiffs had been damaged by reason thereof.” Upon these findings the jury was instructed to find for the plaintiffs.

The transcript is clear that the acts of which plaintiffs complain were in fact the acts of the defendant Clayton Road. That corporation owned the property on which the parking lot was constructed, it contracted for the construction of the culvert, and it ordered the regrading. None of these actions were the actions of the defendant Stix. The record is equally clear that the defendant Stix was the parent company of the defendant Clayton Road. As stated earlier herein, the jury found in favor of Clayton Road. The defendant Stix contends that if the acts of Clayton Road had been found to have rendered it liable to the plaintiffs, then Stix might also be liable either on a theory of participation with Clayton Road as a principal or on the theory that Clayton Road was Stix’s agent when it committed the acts. But, Stix argues, since the jury found Clayton Road, the party committing the acts which allegedly caused plaintiffs’ damage, not liable to the plaintiffs, then Stix cannot be liable either as a party participating in the acts and aiding and abetting their commission, or as a party which caused the acts to be committed by an agent. See 89 C.J.S. Trial § 500. However, we will not rule that point for the reason that it was not raised by the defendant Stix in its motion to set aside the verdict. It should also be noted that such a contention if sustained would cause us to remand the case for new trial thus granting Stix, who did not file a motion for new trial, relief which it has not requested.

It is important that what is not involved here be clearly stated. There is no contention that Black Creek is not a natural watercourse. Neither is there any contention that the culvert caused Black Creek to back up and overflow plaintiffs’ lands, nor that the culvert was inadequate to handle the flow of Black Creek, nor that there was any obstruction created in the flow of Black Creek. It is clear that the obstruction was to the flow of surface water seeking to enter Black Creek. There is no issue of negligence raised as to the manner in which the new channel was constructed. As is obvious from the petition and from their verdict-directing instruction, the plaintiffs do not contend the defendants were negligent in the construction of the 18 inch drain running from the rear of plaintiffs’ property and entering into the culvert enclosing Black Creek in its new channel. It should also be noted that the plaintiffs do not base their claim upon an easement nor upon the establishment of any prescriptive right. The plaintiffs did not file a petition containing separate counts as to each defendant. All were included in the same count. When they submitted their case, the plaintiffs followed the same course. They submitted that the “defendants” (that is, those still in the case, i. e., Stix, Clayton Road and Richmond Heights) enclosed Black Creek in this “concrete tube” and changed its channel. The verdict-directing instruction does not state any other action of any separate defendant. The land herein involved is not agricultural land but is land lying within a densely populated urban area. It is equally important that the terminology used be clearly stated. While there is some dispute in the evidence as to what direction they ran, it is undisputed that the surface waters from the back of plaintiffs’ lot ran in “rivulets” from the back of plaintiffs’ land into Black Creek prior to defendants’ construction. It often happens that courts use the expression “watercourse” to describe these rivulets. The plaintiffs do likewise. In his work on Waters at Section 889(d), Farnum points out that this confusion of natural drainage channels with watercourses has needlessly complicated the question of rights of upper and lower owners with respect to surface drainage. The result has been that the term “watercourse” has come to have two distinct meanings: one referring to a watercourse in and to which riparian rights may attach and the other referring to a watercourse through which an upper owner may discharge water from his land. See Thompson v. Andrews, 39 S.Dak. 477, 165 N.W. 9. A great variety of terms such as “drainway,” “waterway,” and other similar expressions have been used to describe the flow of surface waters in defined courses. In the instant case we are concerned with the drainage of surface waters into a watercourse, and to avoid the confusion arising from the duplication and meanings given to the term “watercourse” we shall refer to the direction and manner of drainage of the surface waters as a “drainway” and use the term “watercourse” only to refer to Black Creek.

It is the defendants’ position that; as stated in their brief, “* * * While plaintiff asserts that his damages arise by reason of interference by defendants with a natural watercourse that is actually and clearly not the fact. The enclosing of Black Creek in the large culvert was but incident to the regrading of the adjoining properties. It was the grading up of these adjoining properties between plaintiff’s land and the Creek which deprived plaintiff of its source of drainage. * * *” We cannot agree. Accepting as we must the plaintiffs’ evidence that surface water drained from their lot in the direction of arrow “B” as shown on the reproduction included in this opinion, it is clear that this water would have reached Black Creek regardless of bow high the defendant Stix raised the grade of the parking lot had it not been for the “concrete tube.” This for the reason that the defendant Stix could not grade up beyond its property line, and to grade to that point would not prevent the surface water from entering the old Black Creek Channel as shown by arrow “B.” However, this does not mean that we should rule this case for the plaintiffs. Their position is based entirely upon their contention that they have an absolute right to have Black Creek continue in its old course and without enclosure within a “concrete tube” so that the surface water from their lot may drain therein in the manner and at the point stated in their evidence.

The cases cited by the plaintiffs do not support such a contention. In Gibson v. Sharp, Mo.App., 277 S.W.2d 672, there was a bayou which ran through the defendants’ lands and came within some 75 yards of the plaintiff’s land. This 75 yards belonged to the defendants. The plaintiff submitted her case on the theory that she had acquired a right to drain her land through a ditch dug across this 75-yard strip of defendants’ land into the bayou, and the defendant could not block the ditch. Plaintiff proceeded upon two theories: equitable estoppel and the acquisition of a prescriptive right. Even assuming the bayou be constituted a watercourse, a matter not specifically decided in that case, the distinctions between that situation and the one at bar are obvious. Gibson in no way involved what plaintiffs insist is the real issue in this case, i. e., change in a natural watercourse. Possibly plaintiffs’ confusion arises from the application of the word “watercourse” to the ditch or drainway which was blocked. Moreover, the plaintiffs in the case at bar have not proceeded upon either of the theories upon which the plaintiff in Gibson based her case and upon which that case was ruled. In Happy v. Kenton, 362 Mo. 1156, 247 S.W.2d 698, the discussion at 1. c. 703-704 indicates clearly that what was there involved was a situation where a natural watercourse was dammed so that waters were caused to back up and flood plaintiff’s lands. There is nothing of that situation here involved, for the waters causing the damage in the instant case never reached the watercourse. Moreover, Happy v. Kenton, supra, and Jacobs v. Frangos, Mo.App., 329 S.W.2d 262, involves parties who were riparian owners. Zook v. Louisiana, Mo.App., 12 S.W.2d 518, involves the collection ■of surface water and the discharge of that water upon plaintiff’s lands. Hardy v. Kansas City, Mo.App., 284 S.W.2d 27, involves a charge of negligence in the interference with an existing drainway and also in the construction of its replacement. Lucas v. City of Louisiana, Mo.App., 173 S.W.2d 629, was brought and tried upon a theory of negligence. These cases are inapplicable to the case at bar as no allegation of negligence is here involved. Haferkamp v. City of Rock Hill, Mo., 316 S.W.2d 620 at 1. c. 624-627(4), contains an exhaustive citation of authorities upon matters closely related to the issue here involved but none that are directly in point. In Haferkamp the issue was whether a landowner had the right to collect surface water and discharge it into a natural drainway upon his own land.

We have not been cited to any case where this point has been ruled nor was any found. However, the geographic positions of the lands here involved are determinative of the issues. The plaintiffs are nonriparian landowners. It is well settled that a riparian owner is entitled to have a stream or watercourse continue to flow through or on his lands in its natural course without any obstruction of the channel or digression of the waters by other owners which is injurious to him. Happy v. Kenton, supra; South Side Realty Co. v. St. Louis & S.F.R. Co., 154 Mo.App. 364, 134 S.W. 1034; 93 C.J.S. Waters §§ 9, 15; Mueller v. Klinhart, Mo.App., 167 S.W.2d 670; Greisinger v. Klinhardt, 321 Mo. 186, 9 S.W.2d 978. To the same effect see 56 Am.Jur., Waters, Sec. 274. The plaintiffs cite Happy v. Kenton, supra; Jacobs v. Frangos, supra; and Gibson v. Sharp, supra, as well as other cases which contain the statement that one may not obstruct a natural watercourse without liability for ensuing damages to others. What plaintiffs do not take into account is that the term “others” as used in such statements does not refer to the public generally, but in fact refers only to other riparian owners. A riparian owner is an owner of land bounded by a watercourse or through which a stream flows, and generally only such an owner may claim or exercise riparian rights which are those rights pertinent only to lands which actually touch on the watercourse or through which the watercourse flows. 93 C.J.S. supra § 8; Restatement, Torts, Vol. IV, Sec. 843. It is equally well settled that riparian rights are not available to those who do not own or control riparian land, and riparian land must be in actual contact with the waters, proximity without contact being insufficient. 56 Am.Jur., supra, Sec. 283. In the instant case the plaintiffs’ land is not riparian. It did not touch the old channel of Black Creek at any point, and it does not touch the new channel.

In a note appearing in 28 A.L.R. at 1262 entitled, “Right to drain surface water into natural watercourse,” it is stated that, as a general rule, “ * * * the owner of a dominant estate has a legal right, in the exercise, of a reasonable use of his premises, to drain surface water into a natural watercourse traversing or bordering the same, and into which such waters naturally shed or drain, although the flow of the water is thereby accelerated and the volume increased.” (Emphasis supplied.) We are not here concerned with a claim of accelerated flow or an increase in volume beyond the capacity of the culvert enclosing the new channel of Black Creek, but the statement, and the cases cited in support thereof, are. clear indications that the right to drain into a watercourse depends upon the watercourse traversing or bordering the lands drained. Gray v. Schriber, 58 Mo.App. 173, cited in the note is a case involving agricultural lands which are governed by a special statute in this state. Rychlicke v. St. Louis, 98 Mo. 497, 11 S.W. 1001, 4 L.R.A. 594, also' cited in the note is a case involving the. discharge of accumulated surface water. In Greisinger v. Klinhardt, supra, at 1. c. 980, the court held-: “ * * * The right to the flow of a natural non-navigable stream, in its natural way, applies to upper and lower owners of land across which the stream flows. * * * ” Accordingly, the actions of the defendants with respect to Black Creek do not give rise to the cause of action stated by the plaintiffs in their petition and submitted in their verdict-directing instruction.

The application of such rules to the instant case is made even more apparent by the fact that land belonging to the trustees of the subdivision, the park area land, is interposed between plaintiffs’ land and Black Creek. Missouri follows a modified version of the “common- enemy doctrine.” There is no doubt that the trustees of the “park area” could erect a wall or take whatever other reasonable measures they wished to ward off surface waters flowing onto

their land from the plaintiffs’ land. Haferkamp v. City of Rock Hill, supra, and cases cited at p. 625. In addition are Goll v. Chicago & A. R. Co., 271 Mo. 655, 1. c. 665, 197 S.W. 244; Mehornay v. Foster, 132 Mo.App. 229, 111 S.W. 882, at 1. c. 231 of the appeal report; Johnson v. Leazenby, 202 Mo.App. 232, 216 S.W. 49, 1. c. 50. See also the discussion of-this question and the authorities cited in Casanover v. Villanova Realty Co., Mo.App., 209 S.W.2d 556 at 1. c. 558. As has been stated, in the instant case there is a total absence of any contention that plaintiffs had any easement, prescriptive right or other permission to drain their land by rivulets running across the “park area.” Yet a decision that plaintiffs-had the right for which they contend would burden the park area with a drainway, even though the owners of that land are not parties nor in any manner involved in this action.

The. plaintiffs failed to state a cause of action upon which relief could he granted, and the trial court should have sustained defendants’ motions for directed verdicts. The trial court did not commit error when it set aside the verdict and judgment for plaintiffs and entered judgment for the defendants. That judgment should be affirmed. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

ANDERSON, P. J., and SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.

RUDDY and WOLFE, JJ., not participating.