text:
    Ernest J. LANE et ux., Appellants, v. ANCHOR CASUALTY COMPANY, Appellee.
    No. 13882.
    Court of Civil Appeals of Texas. Houston.
    March 1, 1962.
    Harry P. Jarvis and Jerome J. Pope, Houston, for appellants.

      H. H. Prewett, Houston, Dyess, Dyess, Prewett & Cantey, Houston, of counsel, for appellee.
   WERLEIN, Justice.

Ernest J. Lane obtained judgment by default against Dan W. Hammons for damages resulting from an automobile collision. Thereafter as a judgment creditoi he brought this suit against appellee, Anchor Casualty Company, under a policy it had issued Hammons. Hammons intervened in the suit. The case was tried before the court without a jury and judgment was rendered in favor of appellee. Only Lane has appealed from the judgment.

Since the record contains no findings of fact or conclusions of law by the trial court, the trial court’s judgment implies all necessary fact findings in support thereof. In seeking to determine whether there is any evidence to support the judgment and the court’s implied findings of fact, “it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.” Renfro Drug Co. v. Lewis, 1950, 149 Tex. 507, 235 S.W.2d 609; Kirksey v. Warren, Tex.Civ.App.1961, 348 S.W.2d 33.

Since appellant’s claim rests entirely under the policy which was issued by appellee to Hammons, appellee has the right in this action to assert whatever defenses it might have against Hammons under said policy. Universal Automobile Insurance Company v. Culberson, 126 Tex. 282, 86 S.W.2d 727, 87 S.W.2d 475; New Amsterdam Casualty Company v. Hamblen, 144 Tex. 306, 190 S.W.2d 56. Appel-lee has asserted that it is not liable under the policy for the reason that Hammons did not give written notice of the accident as soon as practicable; that he did not deliver suit papers to appellee, and did not cooperate with appellee.

Condition 1. of the policy provides:

“When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information .respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.”

The evidence shows that the accident occurred on January 21, 1956 and that the first written notice thereof was given ap-pellee’s agent, Ray Toman, on February 8, 1956 in the form of a letter dated February 6, 1956, from appellee’s attorney, Mr. Duckett, in El Campo. Hammons testified at the trial that he reported the collision to Toman on Monday following the accident. This statement was denied by Toman. Previously in a sworn question and answer statement given by Hammons on March 1, 1956, he said he never reported the accident prior to the time he talked to Mr. Duckett, although he had seen Mr. Toman and could have reported it, but he did not think it was necessary to do so because there wasn’t much damage to the other car and Mrs. Lane said she wasn’t hurt. He also didn’t think he was at fault in the accident.

We think there was ample evidence to support the court’s implied finding that no notice was given appellee of the accident in question until the written notice was given on February 8, 1956. Eighteen days elapsed before written notice was given although Hammons admitted he had in the meantime seen Toman and could have given notice if he had thought it was necessary to do so. The trial court’s implied finding that written notice was not given by the insured to appellee or any of its agents “as soon as practicable”, under the facts and circumstances of this case, is supported by evidence of probative force.

In Klein v. Century Lloyds, 1955, 154 Tex. 160, 275 S.W.2d 95, it was held that giving notice within 32 days was not as soon as practicable as a matter of law, and further that it was not necessary for the insurer to show harm or prejudice. In the instant case there are no extenuating circumstances, excusing the giving of notice sooner than was done. The fact that Hammons did give notice to another company carrying his $50.00 deductible collision insurance within a day or two after the accident of damage to his own car amounting to $364.00, clearly indicates that he was in a position to have given written notice to appellee or its agents much sooner than 18 days. See Allen v. Western Alliance Insurance Co., Tex.Sup. 1961, 349 S.W.2d 590; State Farm Mutual Automobile Ins. Co. v. Hinojosa, Tex.Civ.App., 346 S.W.2d 914, writ ref., n. r. e.

Appellant asserts that the court erred in impliedly finding and concluding that the policy of insurance required Ham-mons to deliver the process served on him to appellee and to cooperate with appellee for the reason appellee had previously breached the insurance contract by cancel-ling same and notifying the insured of such cancellation. We do not agree. The policy expressly gives the insurance company the right to cancel the policy by mailing to the insured written notice stating when, not less than 10 days thereafter, such cancellation shall be effective. This is what was done. The evidence shows that on February 13, 1956 appellee sent a notice of cancellation to Hammons notifying him that the insurance policy in question was cancelled effective February 24, 1956 and that all liability of the company under the policy would cease as of such date. Appellee complied with the terms of the policy and did not undertake to cancel the policy retroactively. The cancellation notice did not disclaim liability under the policy in connection with the accident in question.

Condition 2 of the policy provides: “If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.” The policy also provides that the insured shall cooperate with the company and, upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The evidence is undisputed that Hammons never delivered to appellee the process which was served upon him. Appellee’s claims manager, William R. Powell, testified that he did not know anything about the suit having been filed until in December, 1959.

On March 1, 1956 Hammons called at the office of Powell in Houston and gave a sworn question and answer statement and also signed a “Reservation of Rights Agreement”. Hammons testified that at such time Powell said he wasn’t going to back him up on the insurance policy and wasn’t going to- defend him. Appellant’s attorney, Harry P. Jarvis, testified that on February 13, 1956 he had a telephone conversation with Mr. Powell, relative to the claim against Hammons, and that Powell stated that they were going to cancel him. He also testified that he had a conversation with Powell on February 17, 1956 and that Powell said they were not going to defend Hammons. Powell denied that he ever made such statements to Hammons or Jarvis. The court impliedly found that appellee did not through Mr. Powell disclaim liability at that time under the policy, and thus resolved the fact issue in favor of appellee. Appellee did not make its investigation in the case until after it had obtained from Hammons the reservation of rights agreement.

It should be noted also that at the time Hammons signed the reservation of rights agreement and gave his sworn statement on March 1, 1956, he had with him the cancellation notice which clearly stated that the cancellation of the policy would be effective February 24, 1956. The policy was in full force and effect at the time of the accident, and there was nothing in the notice to indicate anything to the contrary, nor do we think there was anything in the notice which could be construed as excusing Hammons from delivering to the company the citation served upon him or from cooperating with the company in the defense of the claim and the suit that was brought. The cancellation notice did not constitute a waiver of the requirements of the policy or estop appellee from relying upon the conditions in the policy. Moreover, appellant did not plead waiver or estoppel and the testimony to the effect that appellee had disclaimed liability under the policy was objected to by appellee on the ground there was no pleading to such effect.

In the absence of findings of fact and conclusions of law it is impossible for this Court to determine exactly upon what grounds the trial court based its judgment. We think that the failure of Hammons to notify appellee of the accident as soon as practicable was in itself a sufficient ground to support the judgment of the court. This failure occurred before and independently of appellant’s asserted disclaimer of liability by appellee. There is also evidence, however, to the effect that Hammons did not properly cooperate with appellee in connection with the claim against the company, and undisputed evidence, as hereinabove stated, that he did not deliver to appellee at any time the process served upon him.

Appellant contends that the implied findings of fact by the trial court are against the great weight and preponderance of the evidence. We have carefully examined the entire record, and all the evidence, both that favorable to the implied findings of the court and that militating against such findings, and have concluded that we cannot say that the implied findings of the trial court are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Jake STEPHENS, Appellant, v. R. T. McCARTER, Appellee.
    No. 3750.
    Court of Civil Appeals of Texas. Waco.
    Feb. 15, 1962.

      Hicks, Dollahon, Boss & Wohlt, Willard E. Dollahon, Houston, for appellant.
    Hill, Brown, Kronzer & Abraham, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment in favor of a plaintiff, upon a jury verdict, in a rear end collision case.

Plaintiff brought suit for personal injuries sustained as a result of defendant’s car colliding with the rear of plaintiff’s car while plaintiff’s car was stopped behind a line of traffic. Trial was to a jury which, in answer to Special Issues, found:

1)The driver of defendant’s vehicle failed to make a timely application of the brakes, and failed to keep a proper lookout, each of which were proximate causes of the collision.

2) Plaintiff was acquitted of any negligent conduct proximately causing the collision.

3) The collision was not the result of an unavoidable accident.

4) Immediately prior to the collision the driver of defendant’s vehicle was acting under an emergency, and after the emergency, the driver did all that a prudent person would have done to avoid the collision.

5) Plaintiff’s damages were $6500.

The Trial Court entered judgment on the verdict for plaintiff for $6500 and defendant appeals, contending:

1) The Trial Court erred in refusing to admit into evidence written and oral requests, to plaintiff’s counsel prior to trial, that permission be granted for plaintiff to be examined by a doctor of defendant’s choice; that such request had at first been granted, but was later refused by plaintiff’s attorney.

2) The jury’s findings that defendant’s negligence in failing to apply brakes and keep a proper lookout proximately caused the collision, are in irreconcilable conflict with the jury’s findings that immediately prior to the collision defendant’s driver was acting under an emergency and thereafter acted in a prudent manner.

3) The jury’s answers to issues of negligence of defendant’s driver proximately causing the collision are supported by “no evidence”, or in the alternative insufficient evidence.

We revert to defendant’s 1st contention. The record reflects that prior to the close of the testimony, defendant’s counsel sought to offer into evidence the following letter from himself to plaintiff’s counsel:

“May 21, 1959

“Dear Mr. Abraham:

“This letter is to request that your client, R. T. McCarter, be examined by a doctor of our choice (at a convenient time) prior to trial, which could be arranged between you, us and the doctor, with a view to enabling us to ascertain the extent and duration of his injuries, if any.

“Since the case is presently set for trial during the week of June 8, 1959, I would appreciate it very much if you will call or write at your earliest convenience to let us know whether McCarter may be examined by a doctor of our choice * * *.

“You are hereby assured that if the examination is authorized, you will be promptly furnished a true copy of any medical report which may be prepared by the doctor conducting the examination.

“Yours very truly,

Willard E. Dollahon'

Attorney for Jake Stephens.”

Plaintiff’s counsel objected to the admission of such letter in evidence and presented the court the case of Artesian Belt Ry. Co. v. Young, Tex.Civ.App., 155 S.W. 672, W/E Ref. The objection was sustained. We see no error in the ruling of the Trial Court. The defendant’s request was to have the plaintiff examined by doctors of the defendcmfs choice. At no time did the trial judge prohibit defendant’s counsel from questioning plaintiff as to whether he would be willing to be examined by a doctor, either of defendant’s choice or by an impartial court-appointed doctor. In fact at no time did defendant’s counsel ever ask plaintiff as to whether he would be willing to be examined by an “interested” or a “disinterested” doctor. Defendant simply sought to introduce the letter quoted. Such letter was inadmissible under the Artesian case, supra, and under Texas & N. O. Ry. Co. v. Rooks, Tex.Com.App., 292 S.W. 536. The Rooks case holds that where a claimant is never asked whether he will submit to an examination by a doctor, testimony that such a request was made to and refused by his attorney, is properly excluded.

The record reflects that the only evidence defendant ever tendered was the letter;, that defendant at no time ever offered any other evidence that plaintiff’s counsel granted permission and later refused same. The contention is overruled.

Defendant’s 2nd contention is that an irreconcilable conflict is presented by the jury’s findings of primary negligence of defendant proximately causing the collision, and the finding that defendant’s driver was confronted with an emergency after which he acted in a prudent manner. There was. no finding, nor issue requested, that the “emergency” was the sole proximate cause of the collision.

Where the jury has found defendant guilty of negligence proximately causing a collision, a finding of emergency is not in conflict with the findings of primary negligence, and absent findings that the emergency constituted the sole proximate cause of the collision, the specific findings of negligence override the general emergency finding, and the emergency issue will be disregarded in rendering judgment. City Transportation Co. v. Vatsures, Tex.Civ.App., 278 S.W.2d 373, W/E Dis.; Booker v. Baker, Tex.Civ.App., 306 S.W.2d 767, W/E Ref. n. r. e.; Houston v. Shaw Transports Co., Tex.Civ.App., 296 S.W.2d 631 (n. w. h.). The contention is overruled.

Defendant’s 3rd contention is that there is no evidence, or insufficient evidence, to sustain the jury’s findings on primary negligence of the defendant, and upon the damage issue.

The record reflects that plaintiff’s car was preceding defendant’s car. Plaintiff’s car came to a stop behind a line of traffic. Plaintiff gave a hand signal and also an electrical stop light signal of his intention to stop, neither of which were seen by defendant’s driver. Defendant’s car smashed into the rear of plaintiff’s car. We think the foregoing, as well as the record as a whole, amply supports the jury’s findings that defendant’s driver failed to keep a proper lookout and failed to make timely application of the brakes, and that same are a proximate cause of the collision. Grossman v. Tiner, Tex.Civ.App., 347 S.W.2d 627, W/E Ref. n. r. e.; Renshaw v. Countess, Tex.Civ.App., 289 S.W.2d 621; Neill v. Baltazar, Tex.Civ.App., 345 S.W.2d 454, W/E Ref. n. r. e.; Fisher v. Franke, Tex.Civ.App., 321 S.W.2d 903.

The damage issue inquired as to what amount of money would reasonably compensate plaintiff for past and future physical pain and suffering, mental anguish, diminished work capacity and loss of earnings. The jury answered such issue $6500. Plaintiff’s back was injured; he testified that since the accident he had never been free from pain; he was under a medical doctor’s care for some 2 years; the doctor testified that in reasonable medical probability, he would continue to have pain and suffer disability.

The foregoing, as well as the record as a whole, amply supports the jury’s answers to the jury’s findings complained of. The contention is overruled.

The judgment of the Trial Court is affirmed.

WILSON, J., concurs in the result.


author: HOUSER, Commissioner.

text:
    Charles L. STEVENS, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
    No. 48741.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.

      George W. Holmes, Mark M. Hennelly, Allen D. Churchill, St. Louis, for appellant.
    Jo B. Gardner, Monett, for appellee.
   HOUSER, Commissioner.

This is a suit against Missouri Pacific Railroad Company for damages for personal injuries sustained by Charles L. Stevens when an explosion occurred in a fire on the property of the railroad. From a judgment for $27,000 entered upon a jury verdict in that sum the railroad has appealed.

The petition alleged that while plaintiff was on defendant’s premises in Sylamore, Arkansas, with the actual knowledge of defendant, and while defendant’s work crew was burning various materials and objects in a fire within a few feet of where plaintiff was standing (the fire, materials and place where it was burning being under defendant’s exclusive control) defendant, by the carelessness and negligence of its employees, and without warning to plaintiff, “caused, permitted and allowed a sudden and violent explosion in said fire which was of such a nature and character that it would not have happened except for the presence of some unusual, dangerous and explosive substance; that the nature and character of such items are peculiarly within the knowledge of defendant and are not known to plaintiff”; and that as a direct result of defendant’s negligence foreign objects flew into plaintiff’s eyes and body to his great injury.

The answer, after denying generally, affirmatively pleaded contributory negligence and that plaintiff knowingly trespassed and came onto defendant’s property for his own convenience, not for any purpose connected with defendant’s business or for the common or mutual interest or benefit of the parties, and without any inducement by defendant.

Appellant’s point of chief reliance is that at the time and place of injury plaintiff was a trespasser and that the general rule of nonliability of a landowner for injuries to a trespasser is applicable.

Charles Jeffery, foreman of a scaling gang, lived in a railroad bunk car. One of the duties of his gang was to use dynamite, detonated by fuse caps. Railroad regulations required that dynamite caps be kept apart, in the tool car, under lock and key. Charles Jeffery died. James Hughes, a member of the gang, and Tuck Brady, interim foreman, accompanied Mr. and Mrs. Henry Jeffery, relatives of deceased, to the hunk car to sort out and take the latter’s personal effects. They unlocked, entered and searched the car. In a desk drawer Hughes found a box containing SO dynamite caps. Hughes took these caps and “locked them up with the others” (presumably in the tool car). Henry Jeffery found a small package of dynamite caps in a little closet in the end of the bunk car. They were in a box. Without counting them he put them back and left them in the closet. He saw some clothing, paper and other items in the closet. When they left they locked the car. Charles Jeffery’s successor, Hubert Jeffery, ordered the car brought to Sylamore, Arkansas. After it arrived, locked, he unlocked it to see what kind of living quarters he was going to have. Finding the floor covered with newspapers and time rolls, he picked up the paper and threw it out of the car, got a broom and started sweeping the car. A section gang and an extra gang was on hand to help clean out the litter and trash. James Hughes and three men of the section gang, Gilihan, Beavers and Pitts, entered the car to help Jeffery clean it out. Hughes, called as a witness for plaintiff, testified that before he started cleaning out the car he told Jeffery, Brady and the members of both the section and extra gangs that he had found a box of caps, “and for them to look out for these dynamite caps, that there could be some more.” The railroad employees who received this information, in addition to Jeffery, Brady, and the three above-named men who were helping inside the car, were Wadley, John Stevens (father of plaintiff), Pogue and Vines. The latter four were on the ground outside the car. Brady and Hughes had equal responsibility as foremen. Neither of them instructed the men to make a search of the trash and clothing before they handed it out of the car or threw it on the fire “to see if there was anything in it.” On the morning in question Hughes looked for the caps “everywhere imaginable in the car” but found no caps. Brady knew that a fire could set a dynamite cap off without a detonator “in certain instances.” He said he would “be afraid to throw it in the fire.” One of the railroad employees started a fire on the ground next to the bunk car door. The men in the car gathered up “old personal effects that were of no use,” old socks, shoes, dress slippers, a slicker, cardboard cartons, boxes, cans, bottles, a jacket, jumpers, and threw the “stuff” out the door of the bunk car or handed it to the men on the ground, who put the material on the fire. The fire was burning out in the open, alongside the bunk car, three or four feet from the ends of the ties.

Plaintiff testified he went -unto the railroad property to ask his father, John Stevens, for permission to use the truck to take plaintiff’s wife to the doctor. John Stevens was a member of the gang cleaning out and burning the refuse from the bunk car. Knowing that his father was going to work at the north end of the depot that day, plaintiff went to the depot, where he stayed about three minutes, talking to his brother. Then he walked north on the railroad property to the area where a motor car was being unloaded and watched this process for about IS minutes. About fifteen people were there, including plaintiff’s father. After the employees finished unloading the motor car they went to assist in the cleaning out of the bunk car. Plaintiff went with them. The explosion occurred about 15 minutes after the employees quit unloading the motor car.

Jeffery, inside the car, knew there was a fire outside. He saw the smoke but did not “know what they were doing.” While the fire was in progress there “was a big explosion sounded loud.” It was an explosion in the fire. “Stuff started flying.” All of the men were “knocked back”; some knocked down. The men in the car heard the explosion — the distinctive sound of a dynamite cap exploding — a sound “like a dynamite cap or something exploded out there.” Brady, testifying for the defendant, said there was an explosion which "sounded about the same noise as a stick of dynamite.” John Stevens, whose deposition was offered by defendant, testified it sounded like a dynamite cap; that he was familiar with dynamite caps, having handled them all his life since 1926; that it sounded to him like half a box of caps exploded. The explosion jarred the windows of the bunk car, blew out the fire, raised dust in the area, blew the materials in the fire “to pieces” and blew a hole the size of a wash pan in the rock ballast where the fire had been burning. No warning was given that there was going to be an explosion. Several of the railroad employees, as well as plaintiff, were injured by flying fragments. After the explosion the men stood around, bleeding and suffering pain. Arrangements were made to transport all of the injured, including plaintiff, to a hospital in a nearby town. Plaintiff had slivers of metal in his leg. A round, copper fragment the size of a pea was removed from his knee. Plaintiff, familiar with the copper in dynamite caps, testified that the piece taken from his knee was similar in color, thickness, and shape to a dynamite cap. A piece of metal was extracted from plaintiff’s eye. A fragment removed from Vines’ face was “a piece of a dynamite cap.” A small sliver was taken from Pogue’s neck. Three pieces hit plaintiff’s father in the eye, resulting in the loss of the sight of his right eye.

The railroad tracks run approximately north and south at Sylamore. The main line track lies west of the depot and a “house” track lies east of the depot. A woven wire fence runs north and south along the east line of the railroad property. There is a community well located on the railroad property between the main line track and the house track. The bunk car was spotted on the house track. Sylamore has no water system. For 15 years or more the citizens of Sylamore have been permitted to use this well. The public has not been “kept out of there at any time by the railroad.” Although people in Sylamore catch water off their houses and run it into cisterns, others do not have cisterns. The well is used without regard to the time of the year (both in wet seasons and during drouths). Plaintiff testified he would get water from the well on the railroad property whenever he wanted it. The public gains access to the well either by crossing a cattle guard in the line of the fence southeast of the depot and walking north past the depot to the well, or by entering the railroad property through a gate in the fence north of the depot and walking across a path which leads southwest from the gate to a point on the house track near the second Western Union telegraph pole north of the depot, and then either walking south down the house track to a point opposite the well or crossing the house track and walking south on the right of way between the main line and the house track to the well. According to the plat, the cattleguard is 80 feet south and 45 feet east of the depot; the well is 150 feet north of the depot; the bunk car was spotted approximately 260 feet north of the depot; and the gate in the fence is 290 feet north and 45 feet east of the depot. The gate and path have been used for at least 17 years by the public going to get water at the well and by employees going to work. Plaintiff’s evidence spotted the door of the bunk car (from which the refuse was thrown and near which the fire was burning) at approximately the point where the path ends, near the telegraph pole, and placed plaintiff at the fire a few feet from the door of the bunk car, immediately adjacent to the path.

Plaintiff testified he was at and around the fire from the time it was set until the explosion occurred some 15 minutes later; that he was talking to the men, with all of whom he was acquainted. Two or three of them were his relatives. Plaintiff was standing two or three feet west of the fire at the time of the explosion. Vines, a section hand, called as a witness by defendant, testified that plaintiff was at the fire continuously for a period estimated by him at not more than 10 minutes before the explosion. Pogue, a trackman whose deposition was offered by defendant, testified he saw plaintiff “there at the fire.” Phipps, a section gangman whose deposition was offered by defendant, testified he saw plaintiff there on the ground before the explosion, talking to his father, and that plaintiff had been there “a right smart bit” before the explosion. Plaintiff’s father testified that plaintiff “came up to the fire.” Hughes testified he saw plaintiff there after the explosion, and that he went to the hospital in a car with plaintiff. During the trip plaintiff told Hughes his eye was hurting and held his hand over one eye. Jeffery did not remember seeing plaintiff outside the bunk car at the scene of the explosion, but did not affirmatively testify that plaintiff was not there. Brady testified he did not see plaintiff there before the explosion, or if he saw him he did not notice him, but that he did see plaintiff afterwards at the hospital with a piece of gauze over one eye.

In support of its principal contention that the court should have directed a verdict in its favor appellant urges that plaintiff entered the premises for a personal reason not within the scope of the license to get water from the well; that plaintiff was injured not in the area of the well but 200 feet north of the well, far removed from the permissible area covered by the license, and that having strayed to an out of the way place on the railroad property plaintiff exceeded the bounds of his license and became at worst a trespasser, at best a licensee; that the railroad was under no duty “to put its land in a reasonably safe condition for his reception, or to carry on its activities so as not to endanger him” and was not liable “except for wantonness or some form of intentional wrong or active negligence.”

In his brief on appeal respondent, not denying that he was a trespasser or licensee, charges that the railroad was absolutely liable for plaintiff’s injury “regardless of what status he occupied while on defendant’s premises,” on these grounds: (1) that the railroad violated certain fire regulations promulgated by the Director of State Police under Chapter 8, Sections 810 and 811, Arkansas Statutes on Fire Prevention; was guilty of committing a nuisance on its premises, and therefore the court should have directed a verdict for plaintiff. This theory, which was no part of the pleadings at the time of submission, was not submitted, and was raised for the first time in respondent’s appellate brief, comes too late and may not be relied upon in support of this judgment. (2) that under the Arkansas common law the railroad is absolutely liable and status is immaterial where dangerous substances are involved. Respondent cites Missouri Pac. R. Co. v. Slatton, 193 Ark. 356, 100 S.W.2d 86; Sinclair Refining Co. v. Gray, 191 Ark. 175, 83 S.W.2d 820; Phillips Petroleum Co. v. Berry, 188 Ark. 431, 65 S.W.2d 533 and Holden v. Carmean, 178 Ark. 375, 10 S.W.2d 865. Neither the cited cases, nor any others to be found, support respondent’s theory of absolute liability. In Arkansas liability for injuries or damages sustained from the use of a dangerous and explosive instrumentality depends upon proof of negligence and failure to exercise the degree of care required in such cases. See Bennett v. Texas-Illinois Gas Pipeline Co., U.S.Dist.Ct.Ark., 113 F.Supp. 788.

Respondent has not denied he was a trespasser, and under the evidence his case will be judged on the assumption that he was a trespasser. Certainly he was no invitee. He was not on railroad property directly or indirectly upon any mission or engaged in any business connected with the interests of the railroad. Lawton v. Little Rock & Ft. S. Ry. Co., 55 Ark. 428, 18 S.W. 543, 15 L.R.A. 434; St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489, 64 S.W. 347. He entered the property on his own purely personal business, to ask his father, a section hand, for permission to use his father’s truck to take his wife to the doctor. “One who goes upon the premises of a railroad company merely to speak to an employe and not upon any business with the company is a mere licensee.” 3 Elliott on Railroads, § 1785, p. 823. The general rule is that a railroad company owes no affirmative duty of care to hare licensees, who take their license with its concomitant perils. Chicago, R. I. & P. Ry. Co. v. Harrison, 204 Ark. 361, 162 S.W.2d 62; St. Louis, I. M. & S. Ry. Co. v. Tomlinson, supra; Arkansas & L. Ry. Co. v. Sain, 90 Ark. 278, 119 S.W. 659, 22 L.R.A.,N.S., 910. “* * * [0]ne who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes his license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause his injury after his presence there is discovered.” Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423, 252 S.W. 30, quoted with approval in Aluminum Company of America v. Walden, 230 Ark. 337, 322 S.W.2d 696. The general rule is that a railroad company owes trespassers no positive duty of care and only the negative duty not to wilfully or wantonly injure them, or the duty to exercise ordinary care not to injure them after discovering their danger and inability to escape. Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300, 103 S.W. 725; Catlett v. St. Louis, I. M. & S. Ry. Co., 57 Ark. 461, 21 S.W. 1062. The general rule is that those engaged in storing and handling explosive and highly inflammable substances must exercise ordinary care, measured by the nature of the substance handled and the danger, and where such substance is inherently dangerous ordinary care is a much higher degree of care than if it were in its nature innocuous, Phillips Petroleum Co. v. Berry, supra; that ‘in cases of the explosion of dynamite, where third parties having» no relation to the person having it in possession are injured * * * the highest degree of care must be exercised.’ ” Holden v. Carmean, supra, 10 S.W.2d l. c. 866. In the case of trespassing children, if one unnecessarily leaves an explosive exposed and unattended so children may have access to it, at a place where children frequently play, the person who leaves it exposed is liable for injuries to a child who gets possession of it and is injured. In such case it is not error to refuse an instruction that if the child was a trespasser he could not recover. Missouri Pac. R. Co. v. Slatton, supra.

No Arkansas case has been cited or found involving liability to an adult trespasser where the employees of a railroad, with actual knowledge of the presence of the trespasser, injure him by an affirmative act of negligence involving the use of an inherently dangerous explosive. Our task is to ascertain what the Supreme Court of Arkansas would rule under these circumstances. Haberly v. Reardon Co., Mo.Sup., 319 S.W.2d 859. The State of Arkansas was a part of the territory acquired by the Louisiana Purchase from France. It was never subject to the laws of England prior to becoming a member of this Union. Consequently we cannot presume that the common law is in force in Arkansas. In the absence of proof of the Arkansas law under these circumstances, and finding no judicial decisions in Arkansas of which we may take judicial cognizance under Sections 490.080 and 509.220(2), RSMo 1959, V.A.M.S., we must apply our own precedents. Clark v. Barnes, 58 Mo.App. 667; Flato v. Mulhall, 72 Mo. 522.

That plaintiff’s status was that of a trespasser is not necessarily controlling; that classification will not control where the facts merit an exception. Wolfson v. Chelist, Mo.Sup., 284 S.W.2d 447, 451. This case falls within two recognized exceptions to the rule of nonliability to trespassers and licensees. (1) Where the presence of a trespasser is discovered the possessor of land is required to exercise ordinary care under the circumstances for his safety as to any active operations the possessor may carry on. McVicar v. W. R. Arthur & Company, Mo.Sup., 312 S.W.2d 805, and authorities cited, l. c. 812, 65 A.L.R.2d 785. (2) Where a landowner uses, maintains and handles extremely dangerous explosives he is under a duty to exercise the degree of care which a reasonably careful person would use under the same or similar circumstances, irrespective of the fact that the status of the person may be that of trespasser or licensee. Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo. Sup., 246 S.W.2d 742, 745; Paisley v. Liebowits, Mo.Sup., 347 S.W.2d 178, 182. While Boyer and Paisley involved persons under 21 years of age, as to whom the duty is especially applicable, this exception is fully applicable to adult trespassers where the activity which a possessor of land carries on upon the land is such that unless carefully carried on it is likely to cause death or serious bodily harm, and he has actual knowledge that a trespasser is on the premises at some point made dangerous by the conduct of the activity. 2 Restatement of the Law of Torts, Negligence, §§ 336, 338. We recognize the duty of a landowner to licensees, in cases involving unusual hazard from explosive material kept on the premises, not to injure him by an affirmative negligent act after his presence is discovered in a position of danger. Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 448, 55 A.L.R.2d 516. The facts in evidence bring the instant case well within these exceptions. Accordingly, plaintiff’s status was immaterial and there was no error in overruling appellant’s motion for a directed verdict on the ground that plaintiff was a trespasser.

The case was submitted to the jury under the res ipsa loquitur doctrine by Instruction No. 3, which follows:

“INSTRUCTION NO. 3

“The Court instructs the jury that if you find and believe from the greater weight or preponderance of the evidence that on or about the 26th day-of January, 1959, plaintiff was on defendant’s premises near the depot in Sylamore, Arkansas, and that defendant’s employees were removing and burning trash and personal effects of a deceased scaling gang foreman, Charles Jef-feries [sic], in a fire under the control and management of said employees at a bunk car which had been occupied by him, and such items were being burned near where plaintiff was standing, and that while said activities were going on, if you so find, there was an explosion in said fire, which occurred suddenly, violently, and without warning, then you are instructed that such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may do so, unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to defendant’s negligence, and, if you do find and believe from all of the evidence in the. case that the defendant was negligent and that the plaintiff’s injuries, if any, were directly caused by the defendant’s negligence, then your verdict should be for the plaintiff and against defendant.”

The doctrine of res ipsa loquitur is a part of the law of evidence, and in determining the application of its principles the law of the forum governs. Alexander v. Inland Steel Co., C.A. 8th Cir., Mo., 263 F.2d 314.

Citing Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21; Fuller v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 675 ; Cudney v. Midcontinent Airlines, 363 Mo. 922, 254 S.W.2d 662, appellant claims this is not a submissible res ipsa case because plaintiff had knowledge of the cause and demonstrated to the jury the cause of his injury; that he introduced testimony covering every conceivable detail of the occurrence and therefore is in no position to invoke a doctrine based upon the superior knowledge of the defendant and the inability of the plaintiff to show the particular circumstances which caused his injuries. Where a plaintiff goes so far in his own evidence as to point out the specific act of negligence which was responsible for his injury, the doctrine of res ipsa loquitur is not applicable; but even though plaintiff’s evidence may tend to show the specific cause of the accident, plaintiff will not be deprived of the benefit of the doctrine if, after all of his evidence is in, the true cause of the casualty is still left in doubt or is not clearly shown. Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120; White v. St. Louis Public Service Co., 364 Mo. 111, 259 S.W.2d 795. “Submission under the res ipsa loquitur doctrine may not be denied, unless specific negligence, the real or precise cause is definitely shown by direct evidence.” Williams v. St. Louis Public Service Co., 363 Mo. 625, 253 S.W.2d 97, 102. The evidence was sufficient for the jury to infer and find that plaintiff’s injuries were occasioned by some negligence of appellant. The proof of the explosion in the fire, an unusual event which in the course of human experience would not ordinarily happen in the absence of negligence, and the facts and circumstances leading up to and surrounding the explosion, raised a substantial factual inference which amounted to evidence, and authorized a finding of negligence. True enough, there were several circumstances from which the jury could infer and find specific negligence. An inference could be drawn that someone negligently left dynamite caps in some of the material thrown out. Negligent failure to warn plaintiff, or to cause an inspection of the refuse to be made before allowing it to leave the bunk car, might be inferred. The jury might find an affirmative act of negligence in the act of the employees throwing the refuse into the fire without inspecting it when they should have known or suspected that it contained explosives. These considerations, however, would not be sufficient to bar plaintiff’s use of the res ipsa loquitur doctrine unless his evidence was sufficient to clearly show the specific negligence which caused the injury. White v. St. Louis Public Service Co., supra, 259 S.W.2d, l. c. 799; Williams v. St. Louis Public Service Co., supra. Plaintiff’s evidence on this point, circumstantial in nature, does not constitute such a clear and definite showing of what actually happened, or so clearly etch and outline the precise and specific act of negligence that caused plaintiff’s injuries, as to exclude all doubt as to the true cause of the occurrence. Plaintiff’s proof did not show precisely where the dynamite caps came from, or that they came out of the bunk car, or by whom they were handled, or that they were in the old clothing, shoes or containers thrown onto the fire, or that they were thrown onto the fire. For all that plaintiff’s proof showed the caps may have been lying on the ground before the fire was started and the fire may have been started at a spot on the ground where they already were. After plaintiff’s testimony was all in, the issue was still in doubt as to where the caps came from, whether they came from the box Henry Jeffery “left in the closet,” whether they were transferred from the box to the articles discarded, whether they had been left on the floor, whether they were swept out with the papers, whether they fell onto the ground before or after the fire was started, and how and by whom they were caused to be in the fire. Plaintiff’s proof was sufficiently specific to take the case out of the realm of speculation and conjecture, and sufficiently illustrative of the surrounding facts and circumstances to avoid the rule that the mere fact of an explosion, without more, does not bespeak negligence, Carter v. Skelly Oil Co., 363 Mo. 570, 252 S.W.2d 306, and cases cited, l. c. 308, but not so specific as to take the case outside the operation of the res ipsa doctrine.

Appellant objects to the form of Instruction No. 3.

First, it is contended that “the crux of the case” and “the bone of contention” was plaintiff’s right and privilege to be present on the railroad property at the time and place of the explosion, and that Instruction No. 3 completely ignored this important issue which consumed a goodly portion of the trial and merely required the jury to find “that plaintiff was on defendant’s premises” without regard to plaintiff’s right to be there, thereby imposing liability as an insurer on the basis of the formula: “Presence plus explosion equals liability.” There was no necessity of submitting the issue of plaintiff’s status in the verdict-directing instruction. Under the evidence (that employee Hughes had found and handled dynamite caps in the bunk car, and had anticipated the danger and warned other employees to be on the lookout for more caps; that the employees, familiar with dynamite and the propensities of fire and dynamite caps, threw refuse from the car onto the fire without inspecting it, in the presence of plaintiff whose presence at the fire was known to the railroad employees), plaintiff’s status was immaterial; it was appellant’s duty to exercise the highest degree of care — the utmost care — to avoid injury to plaintiff, whether plaintiff was an invitee, licensee or trespasser.

Second, appellant objects to the phrase “near the depot,” claiming this is positive misdirection and a circumvention of the evidence that the bunk car was in an area where the people of Sylamore did not go, considerably north of the well, which in turn was north of the depot. The particular place where plaintiff was standing in its relation to the pathway and well was not a matter of importance. It related only to the status of plaintiff as a trespasser, and we have decided this case on the assumption that plaintiff was a trespasser.

Third, appellant objects that the instruction fails to require that appellant knew or should have known of plaintiff’s presence on the railroad property. While knowledge by appellant’s employees of plaintiff’s presence was a necessary element of plaintiff’s case, it was not necessary to submit this factor in Instruction No. 3 because this was not a controverted fact or contested issue. Both sides proved that several railroad employees had actual knowledge of plaintiff’s presence at the fire. Those employees who did not happen to see plaintiff before the explosion did not deny that he was there, and one of them did see him afterwards, as indicated. There was no evidence that the presence of plaintiff at the fire at and for several minutes before the explosion was not known to the railroad employees.

Although the question is not raised we observe in passing that there was no necessity to hypothesize the fact that appellant’s employees had stored, were dealing with and had been handling dangerous and explosive substances, because appellant has not disputed that this is a case involving the explosion of dynamite caps. On the contrary, at all stages of the trial beyond the pleading stage appellant has accepted this as a fact. By its own witnesses appellant proved that an explosion occurred which sounded like dynamite and that the fragments of metal were pieces of a dynamite cap. In its brief appellant says “On this record, appellee has clearly demonstrated that the cause of the explosion was the casting of dynamite onto the fire.”

Next, appellant claims that Instruction No. 9 erroneously submitted the question of plaintiff’s lost earnings or wages, past and future; and that there is an overlapping which makes this a “double” damage instruction, in that paragraph 2 directs a verdict for embarrassment and humiliation, and paragraph 3 directs a verdict also for mental anguish, thus authorizing the jury to compensate plaintiff twice for the same element of damages. The measure and elements of damages are controlled, in tort actions, by the law of the place where the tort was committed, since this pertains to the substance of the right and not to the remedy. 25 C.J.S. Damages § 4.

Plaintiff testified that before the injury he worked at various jobs, in the timber, for Potosí and Cooper Tie Companies, on a ferry boat, for the railroad, as a cemetery caretaker, at a service station, at General Mills, Carmack Molybdeum Company, and other employments, and that he averaged $35 or $40 a week over a period of time before his injury. Plaintiff testified that after the injury he has hauled freight, once a week, for $10 a load, netting $5 per load after paying expenses; for three weeks he worked for National Silica Sand Company; at harvest time he worked for a milling company, and has worked on the ferry boat, poured cement, and done odd jobs around town; that his average earnings since the injury “over a period of time, averaging them out,” have been $25 to $30 a week, or $5 a week less now than they were before, on the average. This is sufficient evidence to sustain that paragraph authorizing the jury to take into consideration “such earnings or wages as you find from the evidence plaintiff has lost to date as a direct result of such injury, if any.” Fort Smith Gas Co. v. Lewis, 202 Ark. 427, 150 S.W.2d 622.

Paragraph 5 allowed the jury to take into consideration “such earnings or wages as you find from the evidence plaintiff is reasonably certain to suffer, or lose, in the future as a direct result of such injury, if any.” Under Missouri Pac. Ry. Co. v. Sorrells, 201 Ark. 748, 146 S.W.2d 704, testimony that a disabling injury is permanent warrants the giving of an instruction permitting the jury to take into consideration “his loss of time from work, if any, by reason of said injury, if any, and his pecuniary loss in the future, if any.” There was ample evidence, detailed under the point on excessiveness, infra, that plaintiff suffered a disabling injury which is permanent. Under this evidence paragraph 5 was properly included in Instruction No. 9.

With reference to “overlapping” we find no prejudicial error. Plaintiff was entitled to recover “for humiliation and the anguish” on account of the defect in the cornea of his eye, which is visible to others. See Perkins Oil Company of Delaware v. Fitzgerald, 197 Ark. 14, 121 S.W.2d 877. The first paragraph of Instruction No. 9 directed the jury to allow plaintiff such sum as from the evidence would reasonably and fairly compensate him for all damages sustained as a direct result of the injury. The items following, which the jury were allowed to “take into consideration in considering and determining the amount of such sum,” related to the damages correctly directed in the first .paragraph. We do not believe the jury would understand from the instruction that they could allow a double recovery for this element of damage. While it is better practice to submit general and uncomplicated damage instructions, leaving the details to jury argument, Moss v. Mindlin’s, Inc., Mo.Sup., 301 S.W.2d 761, we cannot conclude that appellant was prejudiced in this submission.

Finally, the issue of excessiveness is raised. Charles, L. Stevens, when injured, was a 24-year-old married man with an eighth grade education, and no special training for skilled work. He was a common laborer who had worked at many different jobs. His earning capacity was small. During the past 10 years he had earned $10,000, an average of $1,000 a year. His life expectancy was 45.6 years. Without special skills, it was of unusual importance to him that his physical faculties, and especially his eyesight, remain unimpaired. He had no previous trouble with his eyesight. Prior to the accident he spent considerable time fishing and hunting. He was a good shot with a rifle. When the explosion occurred a round fragment of copper about the size of a black-eyed pea, lodged in his knee. This was removed. The knee healed and gives him no present difficulty. He received a painful injury to his right eye. At the hospital the doctor removed from the center of the cornea a small piece of metal about one sixteenth of an inch in size. When the bandage was removed two weeks later “there was just a blind spot on everything, just a dark spot on all I looked at, and it was just dim.’’ There has been no improvement. There is still a dark spot in the center of whatever he looks at, when he looks straight at an object. His peripheral vision is not impaired, but whichever way his eyes turn, a long-shaped dark spot remains in the center of his vision. It gives him the most trouble at reading arm’s length. When he brings something up close to him it “all runs together.” This bothers him when he is gigging fish; he cannot “get a good look at the fish to hit it.” He can no longer use a rifle, because he cannot see the bead on the end of the barrel. He can see the target with his good eye, but when he brings the gun to his shoulder he cannot find either gun sight or target. He has given up hunting with a rifle, and shooting a pistol. It bothers him in walking and driving. He has lost his depth perception. Everything looks flat. Now he steps higher than normal because he cannot judge the height of “step ups and step downs.” He cannot judge distance of holes in the pathway, or chugholes in the street, or the distance of a car or a taillight. Things blur. It bothers him in chopping wood and in reaching for objects. He cannot pour water from one thing to another; he “overshoots” it. This condition causes him worry and concern, as well as embarrassment. He doesn’t like for people to know about his disability, but “they see it.” This is a permanent condition which he will have every waking hour during the rest of his life. He has pain behind his eyeball, “and around, and hurts in [his] forehead” over his right eye. This interferes with his ability to read. “I just can’t read it, it’s blurred, and it’s got that spot on it, and I can’t see it.” It worries him about getting a job. “Nobody will hire me. Have to take an eye test. * * * I got a family to feed. * * * And I can’t do it setting at the house; I got to get out and do something.” He cannot drive farm vehicles, tractors, etc. He would have difficulty working in a machine shop because he cannot tell how close he is to an object. His work will be limited. Examining optometrists for industry would “steer him clear” of a job requiring distance judging. This difficulty with respect to employability is permanent. The medical evidence favorable to plaintiff’s case: He has a slight corneal scar, centrally located, on the right eye, “right in the center of the bull’s eye.” As the eyeball moves the scar moves with it, regardless of which direction he looks. He has impaired vision of that eye because the scar interferes with vision straight ahead, and causes blurred images, — the cornea is opaque instead of transparent. There is no lens that could focus light and assist in passing light through the opaque scar tissue. Light rays falling on the scar tissue reflect away from their normal path. Instead of normal 20-20 vision plaintiff’s vision is blocked out centrally down to a 20-60 letter. The use of eyeglasses would not improve his vision in the right eye. He can see how many fingers he has, and can see any movement to the side (peripheral vision) but when he looks at an object he cannot see it distinctly. He sees a shadow of an image. He cannot perceive detail. He has lost the third dimension, or depth perception, and distance perception. With one eye everything looks flat. The scar is permanent. The condition will not improve. If there is any change it will be for the scar to grow thicker. There is no damage to the optic nerve, no evidence of inner ocular disease, and no internal hemorrhage of the eye. His special damages are small, totaling $70 for doctor bills, and $218 for hospital bills. His loss of wages in the past has been $5 per week.

Whether to cure the error of an excessive verdict by enforced remittitur is a procedural problem governed by the law of the forum. Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W.2d 568, 576, 161 A.L.R. 383. Appellant cites Higgins v. Terminal R. R. Ass’n of St. Louis, (1951), 362 Mo. 264, 241 S.W.2d 380; O’Brien v. Louisville & Nashville R. Co., (1950), 360 Mo. 229, 227 S.W.2d 690; Meierotto v. Thompson, (1947), 356 Mo. 32, 201 S.W.2d 161 and Cunningham v. Doe Run Lead Co., (1930), Mo.Sup., 26 S.W.2d 957. We have considered these cases, and many other Missouri decisions, including Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972; Honeycutt v. Wabash Railroad Co., Mo.Sup., 337 S.W.2d 50, as well as recent cases of comparable injuries and ages in other jurisdictions, of which Jay v. Walla Walla College, (1959), 53 Wash.2d 590, 335 P.2d 458 (approving an award of $27,303 for a college student who suffered injuries to the retina of his left eye from flying glass necessitating surgery) and Rubin v. Thos. A. Corwin, Inc., (1961), 13 A.D.2d 538, 213 N.Y.S.2d 541, (reducing a verdict of $37,500 to $27,500 for a public school teacher who was injured when metal chips struck him in the eye), are examples. Honeycutt v. Wabash R. Co., supra, is of particular value. In that case, decided in 1960, we left undisturbed a $20,000 verdict for a 35-year-old man who received an injury near the eye as a result of which he suffered from severe headaches three to five times a week for years, a permanent condition; inability to read newspapers, view television, or engage in similar activities without causing headaches and eye pain; inability to stoop, bend or raise up as formerly without triggering headaches, and who was obliged to give up playing baseball with his children, joining them in scout activities, and playing cards with his family and friends.

Having in mind both the similarities and the differences between these cases and the instant case in the nature and extent of the injuries, the existence and permanence of the disability, the special damages sustained, the earnings lost and to be lost, the differing capacities to earn, ages and life expectancies, the pain, suffering and mental distress involved, the varying purchasing power of the dollar at the times these cases were decided, the rule of reasonable uniformity, the fact that the trial court did not cut the verdict, and all of the several other factors which must be weighed, we are of the opinion that the judgment is excessive by $7,000 and that the maximum amount for which a judgment should be permitted to stand is $20,000. If, within 15 days after the filing of this opinion, plaintiff will enter here a remittitur of $7,000, the judgment will stand affirmed in the sum of $20,000, as of the date of the original judgment. Otherwise, the judgment will be reversed and the cause remanded for a new trial.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . The Arkansas doctrine of discovered peril, which is an exception to the non-liability of landowners to trespassers, has no application for the reasons stated in Arkansas & L. Ry. Co. v. Sain, 90 Ark. 278, 119 S.W. 659, 22 L.R.A.,N.S., 910.

      . In part overruled in McSkimming v. St. Louis Public Service Co., Mo.App., 257 S.W.2d 176, 179.


author: CROSS, Judge.

text:
    Averil Rebecca REARICK, Respondent, v. Thomas A. MANZELLA d/b/a American Cab Company, Appellant.
    No. 23464.
    Kansas City Court of Appeals. Missouri.
    March 5, 1962.

      John C. Russell, Donald E. Raymond, Kansas City, for appellant.
    Richard K. Phelps, Kansas City, for respondent.
   CROSS, Judge.

Defendant taxicab fleet operator appeals from a jury verdict and judgment awarding plaintiff the sum of $2500.00 as damages for personal injuries.

The circumstances giving rise to the suit are as follows: Plaintiff was a passenger riding on the right side of the rear seat in a taxicab owned by defendant and operated by his employee driver. Plaintiff testified that when the cab reached its destination she undertook to get out of it. She paid the driver while she was still in the cab and then opened the (right) door and stepped out into the gutter. After remarking that she was dizzy and sick, plaintiff put her hand against the door post of the cab. The driver slid to the right in his seat, grabbed the door handle and “jerked it shut”. In doing so, he caught plaintiff’s thumb in the door. He then started the cab, without knowing plaintiff’s thumb was in the door, and drove the vehicle some distance as plaintiff ran alongside. After she knocked on the glass and attracted the driver’s attention, he stopped the cab. The-door was either jarred open by the stop or wrenched open by plaintiff, and her thumb' was released. Plaintiff claimed injuries to her left thumb, hand, arm and shoulder,, her neck, side and back.

Defendant’s driver testified to a differing state of facts. He said that plaintiff got out of the cab, closed the door herself and slammed it shut on her thumb.

Plaintiff’s petition charged that defendant’s driver negligently shut the cab door on plaintiff’s thumb and that while her thumb was so caught in the door so that she could not remove it, the driver negligently started the cab forward and pulled plaintiff along by her thumb. Defendant’s answer contained the allegation that plaintiff’s injuries were “directly and proximately contributed to by the carelessness, negligence and inattention of this plaintiff”.

Plaintiff’s case was submitted on her verdict-directing instruction (Instruction No. 1) which permitted the jury to return a verdict in her favor under an hypothesis of facts essentially as testified to by plaintiff. The instruction does not require the jury to find that plaintiff was free from contributory negligence as a condition necessary for a verdict in her favor. That issue was neither submitted by the instruction nor referred to in any manner.

The trial court also gave Instruction No. 7 at the request of the defendant. That instruction essentially told the jury that if they found plaintiff was not exercising ordinary care for her own safety and was negligent, and found that such negligence directly caused or contributed to cause plaintiff’s injuries, their verdict must be for defendant. The giving of Instruction No. 7 was proper because (1) defendant had specifically pleaded plaintiff’s contributory negligence as a defense, and (2) there was substantial evidence to support such defense and to warrant its submission to the jury.

It is here contended by defendant that the trial court erred in giving plaintiff’s verdict-directing Instruction No. 1 because it failed to refer to or negative plaintiff’s contributory negligence submitted as a defense in defendant’s Instruction No. 7, “thereby creating a conflict between the two instructions”. In view of present controlling decisions it is our manifest duty to sustain the contention.

As we said in Nation v. Dresnick, Mo.App., 355 S.W.2d 406, it is now settled law in Missouri that, in cases where the court gives a defendant’s instruction submitting his affirmative defense of contributory negligence, it is reversible error to give a verdict-directing instruction for a plaintiff which fails to refer to or negative his contributory negligence. See Moore v. Ready Mixed Concrete Company et al., Mo., 329 S.W.2d 14, wherein the court states, in part, as follows: “When plaintiff’s verdict-directing instruction fails to refer to the defense of contributory negligence, and such defense is submitted in an instruction offered by the defendant, the result is a definite conflict between the two instructions. * * * We therefore hold that in cases where the court gives a defendant’s instruction submitting his affirmative defense of contributory negligence, it is error to give a verdict-directing instruction for plaintiff which fails to refer to or negative his contributory negligence. Cases to the contrary should no longer be followed”. Also see: Losh v. Ozark Border Electric Cooperative, Mo., 330 S.W.2d 847; Myers v. Buchanan et al., Mo., 333 S.W.2d 18; Croney v. Pence, Mo.App., 346 S.W.2d 574; Nation v. Dresnick, supra.

Plaintiff suggests that the Supreme Court did not intend to say in the Moore case that “it was necessary to use only certain magic words to negative the defendant’s theory of contributory negligence”. Plaintiff argues that it is sufficient that the instruction contains a statement of facts from which the jury may conclude “even by inference” that the plaintiff was guilty of no contributory negligence. The fault of the suggestion is that it takes no account of the situation arising in event the jury might conclude “even by inference” that plaintiff was guilty of contributory negligence. Additionally plaintiff would invoke the principle that “all the instructions must be read together”. We have so read all the instructions given in the case, but we find no provision therein to effect a cure of the error in plaintiff’s Instruction No. 1 arising from its failure to negative or refer to the issue of plaintiff’s contributory negligence as required by the Moore case.

Defendant also complains of error in Instruction No. 1 on the ground that it is confusing and incomprehensible. We do not decide the question raised. Instead, we suggest that certain portions of the instruction might be subjected to clarification before the case is re-tried. It is also urged by defendant that Instruction No. 1 erroneously gives the jury a roving commission to find for plaintiff on any grounds of negligence other than hypothesized therein. The instruction, after narrating essential findings of fact, continues in the following language: “ * * * if you so find, and that such injuries were directly and approximately (sic) caused by the carelessness and negligence of the defendant acting by and through its employee and agent, then your verdict must be for plaintiff and against the defendant”. Without deciding the point raised, we express the opinion that the quoted language should be narrowed to include only such acts of carelessness and negligence as the jury might find were committed by defendant’s driver under the facts set out in the instruction and as shown by the evidence.

Defendant also assigns error .in the giving of plaintiff’s Instruction No. 3 on the measure of damages, which told the, jury that if their verdict was in favor of plaintiff they could allow her damages: “ (2) For all physical pain endured by her since the date of the incident referred to in the evidence on the 3rd of December, 1957 and all physical pain that she will as a result thereof continue to suffer in the future;”. The specific complaint is that the instruction tells the jury to compensate plaintiff for all pain she suffered from the time of the accident up to the time of trial, whether resulting from the accident or not. Again, we refrain from unnecessary decision. Due consideration of the complaint can be made by plaintiff before the next trial. It is our observation, however, that the instruction should be worded so as to clearly limit plaintiff’s recovery to items of damage suffered as a result of the casualty.

Defendant finally assigns that the trial court committed error by (1) admitting, over timely objection, plaintiff’s evidence to show the amount of medical expenses incurred in the treatment of her injuries, and (2) by the giving of plaintiff’s measure of damage Instruction No. 3 which authorized the jury to award her damages for medical expenses so incurred. The evidence discloses that plaintiff was a married woman at the time of her injury and during the period of her medical treatment from March 1958 to October 1958. It is true, as defendant submits, that the husband is primarily liable for the wife’s support, including medical care, and that her injury by the negligence of another gives rise to a cause of action in the husband for consequential damages suffered on account of his loss of her society and services, and by reason of expenses paid or incurred for her medical care and treatment. Hausherr v. Kansas City Public Service Co., Mo.App., 268 S.W.2d 433; Irwin v. McDougal et al., Mo.App., 274 S.W. 923. Nevertheless, under certain circumstances the injured wife is entitled to sue for and recover the medical expenditures. She may do so when she has contracted or incurred liability for her medical treatment, or when she has paid for the medical services rendered. Irwin v. McDougal et al., 217 Mo.App. 645, 274 S.W. 923; McLean v. Kansas City, 81 Mo.App. 72; Ashby v. Elsberry & N. H. Gravel Road Co., 111 Mo.App. 79, 85 S.W. 957; Tinkle v. St. Louis & S. F. Ry. Co., 212 Mo. 445, 110 S.W. 1086. And, as stated by this court in McLean v. Kansas City, supra, (cited by defendant) “the wife may recover for medicines and medical attention where the charge therefor is made against her. In such case these elements of damages are taken away from the husband and given to the wife”. Whether any of the above exceptions to the general rule have been, shown by the evidence we need not determine, in view of our disposition of this appeal.

The judgment is reversed and the cause remanded for a new trial.

All concur.


text:
    Lynda Kay HARWELL, Plaintiff-Appellant, v. William Robert HARWELL, Defendant-Respondent.
    No. 23435.
    Kansas City Court of Appeals. Missouri.
    March 5, 1962.

      James R. Herrington, Kansas City, for appellant.
    Lee D. Seelig, Kansas City, for respondent.
   CROSS, Judge.

Plaintiff appeals from a judgment dismissing her petition for divorce, granting the defendant a divorce on his cross-petition, and awarding defendant custody of their infant daughter.

Plaintiff and defendant were married August 25, 1957, and lived together until their separation in May, 1960. One child was born of the marriage. — the mentioned daughter, whose age at the time of trial in February, 1961, was two and a half years.

On May 2, I960, plaintiff left defendant, took the child with her, and moved into a hotel. She filed her petition for divorce on May 4, 1960, charging defendant with indignities.

Defendant’s first responsive pleading was an answer in the nature of a general denial filed on June 13, 1960. However, after the occurrence of certain events shown in evidence, and on December 7, 1960, he filed an amended answer and cross petition charging plaintiff with indignities, association and improper conduct with other men, and alleging that plaintiff committed adultery since the date of the separation.

Plaintiff submitted no evidence other than her own testimony, which was essentially to the effect that defendant refused to help with the child and wasn’t concérned with what was needed in the home; that he used vulgar and violent language and swore at her; that he would stay out late hours, usually on pay days, and had come home intoxicated a few times; that he frequently ridiculed her ideas and attitudes; that he criticized her and said he didn’t love her and was tired of their marriage; and, that defendant struck her on two occasions.

Defendant admitted in his testimony that he slapped plaintiff on one occasion during an argument. He testified that she hit him with her fist and that before he could even think, he slapped her with his open hand. He stated that was the only time he ever used violence toward plaintiff. Defendant denied that he ever came home intoxicated or stayed out late at night except as required by his attendance at a night school course in mathematics at Junior College, and by his performance of a part time job at night. Otherwise, defendant’s evidence consisted principally of testimony concerning plaintiff’s association with a man named J-R-•

By the latter part of June, 1960, plaintiff had moved from her hotel abode to take up residence in the home of one Mrs. Jo Ann Fowler in Grandview on a “split cost” arrangement. The household consisted of Mrs. Fowler, plaintiff, and plaintiff’s daughter. Mr. Fowler was in military service, stationed at Fort Riley, Kansas. j

Plaintiff procured Mrs. Fowler’s attendance at the trial but did not offer her as a witness. At the conclusion of plaintiff’s testimony, defendant called Mrs. Fowler to the stand and examined her. She testified (with expressed reluctance) in part as follows : In November of 1960, plaintiff and Mrs. Fowler were at a dance where plaintiff became acquainted with the man named J-R-. After that occasion, and in the months of November and December, 1960, J. R. was a visitor at the Fowler house. How many times, the witness could-n’t remember for sure. In December he was there about five times. On occasion, when Mrs. Fowler went bowling early in the evening J. R. was there at the house with plaintiff and her child and was still there on Mrs. Fowler’s return from the bowling alley around midnight. In November, 1960, plaintiff and J. R. went to a party together. They returned some time after Mrs. Fowler had retired. One morning in November, 1960, Mrs. Fowler, her husband (then on leave), plaintiff and J. R. had breakfast together in the Fowler home. Mrs. Fowler stated she didn’t know whether J. R. had stayed there all night. She didn’t know how it happened that he was eating breakfast there. She testified: “Everyone was up before I got up.”

Mrs. Doris Atwood, who lived in Grand-view across the street from Mrs. Fowler, testified on behalf of defendant that several times plaintiff spoke in conversation of J. R.; that plaintiff remarked that she had an appointment with him; that she and J. were taking her child to the circus; that J. was baby sitting with the child while plaintiff went to “choir”; and, that plaintiff had J’s identification bracelet. Mrs. Atwood saw the bracelet and the name of JR- on it. One Sunday morning the witness saw J. R. washing plaintiff’s car in the Fowler driveway, and saw plaintiff and J. R. together take laundry to the launderette.

Defendant adduced evidence in detail relating to plaintiff’s association with J. R. on the specific nights of December 1st through December 5th, 1960. That evidence consisted of testimony given by defendant himself and four other witnesses, all of whom had kept watch at the .Fowler house during the time in question, tending to establish the following facts and circumstances:

On the night of Thursday, December 1, 1960, Mrs. Fowler drove away from her home about 6:30 P.M. At approximately 7:30 P.M. J. R. arrived in his automobile, parked it in front of plaintiff’s Chevrolet and entered the house. At the hour of 2:30 A.M. he was still in the house and all the lights in it were turned off.

On the night of Friday, December 2, 1960, at about 11:45 P.M., J. R. again drove his car to the Fowler house, parked in front of plaintiff’s Chevrolet and went into the house. Although a watch was maintained, he was not observed leaving the house, and at the hour of 2:30 A.M. his car (and plaintiff’s) were still parked as they were when he arrived.

On the night of Saturday, December 3, 1960, plaintiff and J. R., riding together in plaintiff’s Chevrolet, drove up and stopped in front of the Fowler house at approximately 8:45 P.M. They sat there in the car hugging and kissing for about 15 minutes. They then drove away but returned at about 9:30 P.M. and went into the house. They came out at 10:30 P.M. and drove off again. They returned about midnight and re-entered the house. In about 15 minutes all the house lights went out. Then the bedroom light went on for about 20 minutes, after which it was switched off. J. R. was still in the darkened house at the hour of 2:00 A.M.

On the night of Sunday, December 4, 1960, Mrs. Fowler, her husband (apparently home on leave) and the child of the parties were observed leaving the Fowler house in .an automobile at about 9:20 P.M. In their .absence, and at about 11:35 P.M., plaintiff and J. R. drove up to the house in separate cars. J. R. got out of his car and into plaintiff’s Chevrolet. They sat there together for about 20 minutes hugging and kissing. After that they went into the house about midnight. At 12:30 Mrs. Fowler and the child returned. At one o’clock all house lights were turned off. At two o’clock the porch light came on and J. R. came out of the house followed by plaintiff who was in her pajamas. She put her arms around the man and kissed him for about three or four minutes. He then drove to Gebaur Air Base (to which he was followed by an observer).

On the night of Monday, December 5, 1960, plaintiff and J. R. drove up to the Fowler house together in plaintiff’s car. After some hugging and kissing, they got out of the car and entered the house. All lights went off at 12:30 o’clock. No lights in the house appeared until 2:30 o’clock when the porch light went on. Plaintiff then drove J. R. to the air base.

Plaintiff’s position in this case is not one of advantage. She has filed no pleading to deny defendant’s cross petition which charges her with conjugal infidelity. She does not testify in denial of defendant’s evidence tending to establish her marital misconduct. She has even refused to be cross-examined on that subj ect — on advice of her (trial) counsel who instructed her that she had a constitutional privilege against self-incrimination. Upon objection made by her counsel on such ground of constitutional immunity, sustained by the trial court, plaintiff abstained from answering the following questions (among others) propounded by defendant’s counsel:

“Q Do you know a gentleman by the name of J- R-?”
“Q Now I will ask you whether or not you ever had any sexual relations with a gentleman by the name of J- R-?”
“Q Were you ever in a Chevrolet automobile on any of these evenings with one J- R-?”
“Q Between December 1, 1960 and December 6, 1960, were you in the bedroom of your home with one JR-?”
“Q During that time did Mr. J-R-on any of those occasions remain all night in your home?”

Plaintiff’s claim of privilege has been disastrous to her welfare in this case. The immunity she invoked only served to prevent testimony which might be used against her in a subsequent criminal action — not to keep out probative evidence or any inferences relevant to the issues here. As stated in 98 C.J.S. Witnesses § 455, p. 308: “So, while the claim of privilege may not be used against defendant in a subsequent criminal prosecution, an inference that his testimony would have been unfavorable to him is available to his opponent in a civil cause in which defendant pleads the privilege”. The consequences of a witness’s refusal to answer pertinent questions on cross-examination are severe. Generally, where a witness refuses to answer such questions on cross-examination, Tiis testimony on his direct examination will be stricken, especially where the witness is a party testifying in his own behalf. 98 C.J.S. Witnesses § 373, p. 126.

Although the trial court took no action to ■strike plaintiff’s testimony, her refusal to answer pertinent questions has necessarily given rise to a strong inference against her that if she had given answers she would have corroborated the testimony of defendant on the subject matter of the questions. Apparently plaintiff has some realization of her predicament since she makes no point in her brief that she was not a guilty party or that defendant was not an ■“injured” party.

Plaintiff presents only one assignment of •error in respect to the issue of divorce, to-wit: that respondent, by his own admission, is not an innocent party. Plaintiff ■says it is not enough that a party seeking :a divorce prove that he is an injured party, but that he must also prove he is the innocent party — that he must come into court with “clean hands” and without fault or dereliction. Therefore, plaintiff argues, because defendant admitted that on one occasion he slapped her, he was thereby proven guilty of breaching his marital duty and cannot be considered to be an innocent party.

Defendant’s single instance of admitted indignity to plaintiff — slapping her in sudden retaliation to her own blow— is not sufficient to destroy his status as an innocent and injured spouse, or to brand him as a “wife beater” of the species excoriated by this court in Libbe v. Libbe, 157 Mo.App. 701, 138 S.W. 685. We do not condone defendant’s ungallant act committed in momentary anger. However, it is to his credit that he said of the incident “I am not proud of it”. Nor do we find from the whole record any testimony of sufficient import to warrant a finding that defendant is not an “innocent” party.

The degree of innocence that must inhere in a party for him to be entitled to a divorce “does not mean that his conduct towards and his treatment of [his spouse] need on all occasions have been letter-perfect and above all reproach, for if this were so, few divorces if any, could ever be granted”. Rowland v. Rowland, Mo.App., 227 S.W.2d 478. On the contrary, as stated in Stevens v. Stevens, Mo.App., 158 S.W.2d 238, the conduct of one party will not prevent him from being adjudged an innocent party unless his conduct was such as to entitle the other party, prima facie, to a divorce.

The sufficiency of “indignities” to justify the granting of a divorce has been defined in Garton v. Garton, Mo.App., 246 S.W.2d 832, as follows: “It has been said, ‘Indignities, such as to warrant the granting of a divorce, (or the denial thereof) ordinarily must amount to a continuous course of conduct. A single act, or occasional acts, will not suffice. The course of conduct must be such as to connote settled hate and a plain manifestation of alienation and estrangement.’ Haushalter v. Haushalter, Mo.App., 197 S.W.2d 703, 708”. Such conduct on the part of defendant is not shown in this case. Even if we chose to believe the truth of plaintiff’s testimony, we would not consider the “indignities” she attributes to defendant sufficient to entitle her to a decree of divorce. As the court said in Elgin v. Elgin, Mo.App., 301 S.W.2d 869, “If we assume that all 'that plaintiff said about the defendant was true, she would not have been entitled to a divorce and consequently he is the innocent party”.

However, we do not accept plaintiff’s testimony as true. The evidence touching defendant’s conduct and his status as an innocent party is conflicting. We therefore apply the rule that due deference will be accorded by the appellate court to the findings of the trial court when there is a conflict in oral testimony. That rule is stated in Randall v. Randall, Mo.App., 284 S.W.2d 64, as follows: “The trial court observed defendant on the witness stand and heard her testimony. According to her testimony, plaintiff was guilty of misconduct such as to justify defendant being granted a divorce; and her testimony was to the effect that she was guilty of no misconduct such as to bar her from a divorce on that ground. The judge found that issue for defendant. We will defer to that finding, it being based on conflicting oral testimony. Section 510.310, subd. 4 RSMo 1949, V.A.M.S.; Bryant v. Bryant, Mo.App., 232 S.W.2d 199, 204”.

We resolve the question of credibility in favor of defendant and find that his testimony is worthy of belief where it conflicts with plaintiff’s. Our resolution of the question is not alone from deference to the views held by the trial judge. We have taken into consideration the fact that plaintiff’s testimony stands alone and without corroboration. We also look to the reasonableness or unreasonableness of her testimony. All of the evidence indicates that defendant is a moral, industrious man who worked all day to provide for his family and who went to school at night to advance in his employment. He also worked at night to augment his income. He placed his earnings in a joint bank account, un-restrictedly available to plaintiff. He is a good father who loves his child. The home he worked for and provided was destroyed by plaintiff’s abandonment of it. Even plaintiff attests to defendant’s conjugal fidelity by these words, in her brief: “There is no allegation in any part of this matter that defendant was ever interested in any woman other than his wife, and this point will not be argued here”. Under these facts it is not reasonable to believe that defendant was guilty of the indignities defendant charged against him and narrated in evidence. Finally, plaintiff’s own conduct, wrongful in nature and tacitly admitted, invites no confidence in her moral stability or credibility.

Under the record before us, we are constrained to find that defendant has established the allegations of his cross petition by convincing evidence, that he is both the innocent and injured party, and that he is entitled to a decree of divorce from plaintiff.

Plaintiff’s remaining assignment is that the trial court erred in awarding custody of the minor child to defendant. Plaintiff contends for the child’s custody under the rule that very young children, particularly young girls, should be in the care and custody of their mother unless she is demonstrably unfit as a custodian.

There is no absolute rule by which it can be determined which of two contesting parents should be given custody of a child upon their separation, but each case must be judged on its own facts. We so stated in Tootle v. Tootle, Mo.App., 329 S.W.2d 218. We further said in that case, “Usüally the custody of children is awarded to the party who prevails in the divorce action. Wells v. Wells, Mo.App., 117 S.W.2d 700; Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 776. Our courts have said that 'all things being equal’, a child of tender years should be given into the custody of the mother. Keith v. Keith, Mo.App., 95 S.W.2d 669, 672. But the ‘guiding star’ which the courts must follow in determining the question of custody is the welfare and best interests of the child. There is an additional well settled rule ‘that the findings of the trial court in matters involving the custody of a minor child of divorced parents, while not binding upon the appellate court which must review the record for itself, are nevertheless not to be lightly disturbed, and will be deferred to unless the appellate court is firmly convinced that the welfare of the child requires some other disposition.’ Lutker v. Lutker, Mo.App., 230 S.W.2d 177, 179”. And, as stated in Ragan v. Ragan, Mo.App., 315 S.W.2d 142, “There is no paucity of cases demonstrating that, where the best interests of a child will be served thereby, custody will be awarded to the father”.

We have carefully weighed the facts in this case in the light of all the rules applicable to the grave question before us. As is our duty, we have given deferent consideration to the findings of the able trial judge who saw and heard the parties testify. We are not disposed to disregard those findings. We cannot say that they are in conflict with the preponderance of the evidence or that the trial court abused its discretion in awarding the child’s custody to defendant. We approve the findings of the trial court on this issue and adopt them as our own.

We are firmly convinced that the child’s welfare will be best served by leaving her in the custody of her father. Plaintiff has made no showing of her suitability as the child’s custodian. There is evidence otherwise — proof of her moral dereliction and lack of spiritual values. Plaintiff is not employed. She is still living at the Fowler house. There is no testimony to show whether plaintiff would keep the child there or at some other place if she were awarded custody. Plaintiff is silent as to her plans, aims or objectives for the child’s future.

Defendant is the innocent party, guilty of no moral fault. He has shown himself able to afford the child physical and emotional security in a properly moral and religious environment, attended by love and affection. He has provided a suitable and proper home for his child, in a household that would include defendant, his child, and Mrs. Bess Harwell, his mother. Mrs. Harwell has independent means, is not employed, and is able to devote herself to the care of her son’s child.

In accordance with our findings, we affirm the trial court’s judgment.

All concur.


author: BIRD, Chief Justice.

text:
    William A. YOUNG, Administrator, Estate of Scott T. Graves, Deceased, Appellant, v. UNITED STATES of America, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1961.
    As Modified on Denial of Rehearing March 16, 1962.
    Earl M. Henry, Frankfort, for appellant.
    R. Caywood Metcalf, Asst. U. S. Atty., Lexington, for appellee.
   BIRD, Chief Justice.

This action was brought by the administrator of the estate of Scott T. Graves to settle the estate.

The United States, a creditor, was made party defendant along with other creditors and the heirs of the intestate.

The United States, claiming that it had not consented to be sued, moved to dismiss as to it.

The motion was sustained and the action was dismissed as to the United States. The administrator appeals.

The administrator relies on a Federal Statute, Title 28 U.S.C. § 2410(a), the pertinent part of which reads as follows:

“ * * *, the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien.”

He contends that this suit is in fact an action to quiet title. We do not agree.

The title to the personal property involved in this action is unquestionably vested in the estate of Scott T. Graves. We see no question of title to be determined here.

It is alleged however that the United States has a tax lien on the property. The administrator has asked that the United States, along with others, assert and enforce its lien in this action. This, we think, is permitted by the “foreclosure” language of the quoted act because one of the purposes of a settlement suit is the foreclosure of all liens on the property of the estate. See KRS 395.510(2).

It is our opinion that the trial court erroneously dismissed the United States.

The judgment is reversed.


author: STEWART, Chief Justice.

text:
    BLUE DIAMOND COAL COMPANY, Appellant, v. Martha E. GAYHEART, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    March 9, 1962.
    Maxwell P. Barret, Hazard, for appellant.
    Calvin N. Manis, Hazard, for appellees.
   STEWART, Chief Justice.

This is an appeal from the judgment of the Perry Circuit Court affirming an award to appellees, Martha Gayheart and two of her children, of workmen’s compensation payments adjudged due them because Tilden Gayheart, husband of Martha and father of the children, died as a result of injuries sustained by him while in the employ of appellant, Blue Diamond Coal Company.

Tilden Gayheart was injured in appellant’s mine on October 28, 1959, when a piece of rock (5 feet x 8 to 10 inches) fell and pinned him to the floor. At the hospital his discovered injuries included a bruise and a broken vertebra. He stayed at the hospital for thirteen days, was fitted with a back brace when released, and sent home to convalesce. On December 20, 1959, he died.

Martha Gayheart, his widow, filed an application for workmen’s compensation benefits on behalf of herself and her two children and introduced evidence to be heard in support of this claim. Appellant company introduced no proof. As shown above, an award was made in favor of the claimants. The sole question presented to the circuit court, when it reviewed this proceeding, and on this appeal, is whether the evidence supports the finding of the Workmen’s Compensation Board that Gayheart’s death was a direct result of the injuries he received on account of the accident at appellant’s mine.

The lay testimony, given by Martha Gayheart, by two men who were present at the time of her husband’s death, and by a co-worker of the deceased was that Gayheart had been hale and hearty and a regular employee of appellant for ten years past; that from the day of the accident he became practically incapacitated, so that he was unable to leave his bed without the brace; that he lost weight, had a swollen stomach and was in constant pain; that he passed dark clots of blood from his bowels; and that his condition did not improve but he remained “hollow-eyed” and pale.

On the day of his death, he was dressed by his wife. He then sat on the side of his bed and began talking to two friends. Suddenly he clapped his hands, fell back on the bed, and died within ten minutes. Gayheart’s stomach was swollen at the time, according to the testimony of those present. No doctor was with him when he passed away and no autopsy was performed.

The medical testimony was given by Dr. W. F. O’Donnell, Jr., who treated Gayheart at the hospital, prescribed the brace, and saw Gayheart twice at his office between the time of his discharge from the hospital and his death. The doctor testified his examination of Gayheart at the hospital revealed slightly elevated blood pressure and some calcification in the abdominal aorta; and that these symptoms were indicative of heart disease. Also, his opinion as to the possible cause of death, based upon a description given to him of the way Gayheart died, was that a heart attack had occurred. He stated, furthermore, than when he first examined Gayheart his heart sounds were normal. He thought the dark-clotted blood that appeared in his bowel movements was due to hemorrhoids. Nevertheless, Dr. O’Donnell was reluctant to state the cause of Gay-heart’s death without having first-hand knowledge.

Appellant strongly insists no connection exists between the death of Gayheart and his injury of October 28, 1959. The Workmen’s Compensation Board held that, although the exact cause of Gayheart’s death was not conclusively proven, it could be presumed his death was the outcome of his injury. It reasoned that he was a normally healthy and able-bodied person until he received the injury in question, which was of a substantial nature, that he gradually grew worse as a result thereof, and that death ensued soon thereafter.

The case of Ellis v. Litteral, 296 Ky. 287, 176 S.W.2d 883, was relied upon to support this position. In that case, Lit-teral while working for Ellis was struck on the back and possibly on the head and knocked unconscious by a falling gin pole. When taken to the hospital and examined, it was found his seventh and eighth thoracic vertebrae were fractured. He remained in the hospital thirteen days when he was placed in a cast and permitted to return to his home. The cast was removed after five weeks and he was allowed to travel, but a large portion of his time was spent lying down. While on the trip, he became ill, was hospitalized and died on August 13th following his injury on June 11th. The cause of his death was not determined.

It was revealed that Litteral was an able-bodied man before his injury and, thereafter, as a consequence of his condition he suffered continuously and grew gradually worse. The Workmen’s Compensation Board found Litteral’s injury from the accident produced his death and the circuit court confirmed this holding. Upon an appeal to this Court reversal was sought on the sole contention that Lit-teral’s death did not directly grow out of the accident. In its opinion this Court said (176 S.W.2d pp. 885, 886):

“Where the burden of proof is on plaintiff to prove the probable cause of death, such burden does not cast upon him the necessity of disproving every other suggested cause. 71 C.J. Sec. 879, pp. 1069-1070. And where death follows soon after the injury of an able-bodied man, a presumption arises that the death was caused by the injury in the absence of other than conjectural testimony to the contrary. 71 C.J. Sec. 863, p. 1061. The evidence clearly shows the deceased to have been an unusually able-bodied man for thirteen years previous to his injury, and that the symptoms he complained of from the time of injury up to the very moment of his death were continuous, and gradually grew worse.”

The case at bar is closely analogous factually to Ellis v. Litteral, supra, and we believe the holding there controls our determination of the case before us. The evidence does not establish the cause of death of Gayheart, other than his injury of October 28, 1959. It further discloses that prior to his injury Gayheart was a strong and stout man; that he was temporarily sick only once, when he had a kidney stone; and that before the mishap he worked regularly at manual labor. After his injury, which caused him to be hospitalized, he never regained his strength and vigor but, on the contrary, lost weight and seemed to grow progressively worse. His death occurred relatively soon after the injury and without a proven intervening cause.

It is our opinion the presumption stated in Ellis v. Litteral, supra, is applicable to this case. The circumstances before, at the time of, and after the accident established an almost airtight causal connection between the happening of the accident and the death of Gayheart. The Workmen’s Compensation Board had sufficient substantial evidence to support its finding, and we do not believe we should disturb it. See also Hollinsworth v. Traubaugh, Ky., 268 S.W.2d 431.

Wherefore, the judgment is affirmed.