author: SAMUEL A. DEW, Special Commissioner.

text:
    Ruth V. HEUSMANN, Administratrix of the Estate of Otto E. Heusmann, Deceased, Petitioner-Respondent, v. H. Sam PRIEST, John H. Poelker, N. A. Sweets, Eugene P. Walsh, Thomas L. Moran, George Milne and Robert W. Matteson, constituting the Members and Board of Trustees of the Alternative Police Retirement System of St. Louis, Appellants.
    No. 31330.
    St. Louis Court of Appeals. Missouri.
    March 19, 1963.

      Thomas J. Neenan, City Counselor, Aubrey B. Hamilton, Assoc. City Counselor, St. Louis, for appellants.
    Everett Hullverson, Corinne Richardson, Hullverson, Richardson & Hullverson, St. Louis, for respondent.
   SAMUEL A. DEW, Special Commissioner.

Otto Heusmann (hereinafter called the claimant) was a police officer of the City of St. Louis, Missouri. On February 23, 1961, he applied to the Board of Trustees of the Alternative Police Retirement System, in effect in that city, for retirement benefits allowable to retired policemen for accidental disability under Section 86.267(1) RSMo 1959, V.A.M.S. The Board denied the claim but voted to approve the lesser benefits to the claimant for ordinary disability under Section 86.260, if he should file an application on that basis. Thereafter, on March 1, 1961, claimant retired from the police department and filed a claim for benefits for ordinary disability, but requesting a hearing on his previous application for accidental disability. The Board thereupon granted such a hearing, again denied the claim and reaffirmed its approval of benefits for ordinary disability. Upon a review of the proceedings in the circuit court, the court reversed the determination of the Board and remanded the case for further proceedings accordingly. From such judgment of the circuit court the Board took the present appeal. On July 27, 1962, pending this appeal, the claimant died and his widow, executrix of his estate, was substituted as respondent herein.

The qualifications of a member of the above mentioned Police Retirement System for benefits based upon a claim of accidental disability are prescribed by Section 86.263 as follows:

“Upon application by the member or the board of police commissioners any member who has become totally and Permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place through no negligence on his part, * * * shall be retired by the board of trustees provided that the medical board shall certify that such member is mentally or physically incapacitated for further performance of duty, that such incapacity is likely to be permanent and that such member should be retired * * * ”,

Upon review in the circuit court the parties appeared by counsel and agreed to submit the petition for review solely upon the transcript of the proceedings before the Board of Trustees.

The transcript of the proceedings before the Board contains testimony of the claimant that he began his services as a police officer in St. Louis in 1942; that he retired March 1, 1961; that he left the force because of two severe heart attacks; that he retired on the advice of physicians to seek a less strenuous type of work; that he had since been drawing benefits of 25 percent as a pension merely on his medical examination; that while on the force he performed all of the general assignments of duty as directed, including, at times, assisting in subduing unruly prisoners; that in 1955 he began to have intermittent chest pains which he thought were then caused by indigestion; that in 1955 he consulted the department surgeon, who, after several treatments, advised him to seek some sedentary service in the department. He stated that the doctor wrote to the chief of the medical staff recommending claimant’s transfer to a more inactive kind of work; that in 1957, he was placed on the Municipal Opera detail, which consisted of traffic direction, parking vehicles, and keeping alert for any emergency situation, but that such work proved to be no less strenuous than regular assignments to which he was returned.

Claimant testified that in May, 1959, while on general duty, he assisted in subduing a drunken driver, who, in the scuffle, tried to grab claimant’s revolver from him; that after the arrest he experienced severe chest pains and was taken to the hospital for emergency treatment. He said that he had suffered a similar attack in 1958, while carrying some heavy cases from a building, causing him to lose several days of service. He stated that thereafter he consulted department doctors and a complete checkup was recommended; that in 1959, he was again seized with violent chest pains at the Municipal Opera which lasted two and one-half hours; that he did not then know it was a heart attack but had been advised of his hypertension. Regarding the incident at the Municipal Opera he stated that there was a shortage of personnel on that occasion and he had to be very active in the parking of over 800 cars in 50 minutes, and later was compelled to lie down in the parking lot for two hours because of his chest pains. He was sent home and later to the hospital, where he was kept under sedation for two weeks. His doctor, he said, had written a letter in 1957, strongly recommending that he be assigned less active duty. In 1961, Dr. Thoma disqualified him from active police duty.

The claimant testified that prior to and after 1955, he was active in sports, playing handball at the gymnasium and softball, Indian ball and games of that type; that up until 1958 or 1959, he occasionally played softball or paddled around in the swimming pool. He said his chest pains always followed physical exertion; that prior to 1959, his cardiogram did not show any heart condition, but that he had a history of hypertension. He said that after returning to general police duty he was again assigned to the Municipal Opera in 1960, until he was finally disqualified March 1, 1961.

Dr. Milton Smith testified that in 1955 he examined claimant, who was complaining of chest pains after physical effort; that he had previously operated on the claimant for hemorrhoids; that in 1955, claimant had abnormally high blood pressure; that prescriptions were given him and a less strenuous line of duty was recommended. Witness saw claimant 23 times, treating him for high blood pressure with alternating success; that the cause of claimant’s condition then was coronary artery insufficiency, resulting in pains following physical exertion; that he had twice written the police department urging that the claimant be assigned to less strenuous duties. He said that if the claimant did not follow orders to avoid physical exertion, such failure would be a factor in the subsequent events.

The claimant introduced a letter written by Dr. George E. Thoma, department physician, dated February 20, 1961, addressed to the Medical Board of the Alternative Police Retirement System in which he stated he had first seen claimant August 13, 1959, at which time claimant complained of severe retrosternal pains of two days’ duration; that there was a prior history of diaphragmatic hernia, duodenal ulcer and high blood pressure for a number of years; that the electrocardiogram revealed a recent anterior myocardial infarction and an older posterior myocardial infarction; that the usual coronary regime was applied, including anticoagulant therapy; that the examination also disclosed a duodenal ulcer with crater and hiatus hernia; that six weeks’ hospitalization ensued, followed by outpatient treatments; that claimant’s blood pressure remained elevated and claimant continued to have intermittent chest pains due to coronary insufficiency.

Dr. Thoma, in his letter to the Alternative Police Retirement System of February 20, 1961, above mentioned, further stated that on January 14, 1961, he examined claimant and noted purpura of the legs of the patient, and mucosa of the mouth; that there had been an increase in the frequency and severity of chest pains; that he was sent again to the hospital where a myocardio-gram revealed a recent myocardial infarction ; that the claimant was again discharged from the hospital February 4, 1961. Dr. Thoma wrote that in view of three distinct episodes of myocardial infarction, persistent hypertension and angina pectoris, claimant was physically unable to perform the duties of a patrolman.

Referring to the above letters of Dr. Thoma and the claimant’s condition as stated therein, counsel asked Dr. Smith if claimant might have lived a normal life if he had not engaged in strenuous exercise or activity, to which the witness replied that it would depend on whether the claimant would submit himself to treatment “in keeping his blood pressure down”, and “Only the Lord knows what would have happened to him, people without high blood pressure can get heart attacks”. At one point the witness said: “People can get pains in their chest from exertion and sometimes without exertion”; that “a normal person without any heart condition at all could get chest pains if he had rapid exertion”; this, he said, is due to the splitting of the blood through the arteries of the heart and consequent insufficiency of oxygen there; one can have “heart trouble with pain and not have a heart attack”; that during his treatment of the claimant there was no sign of heart attack but of heart trouble. As to the later infarction shown in Dr. Thoma’s report of August, 1961, witness said that the dates of the occurrences of the infarctions could not be pinpointed; that it might be two months or a year or may occur “in an acute form and stabilize themselves over a period of six weeks to two months so that the changes would be permanent”. He said strenuous .athletic or physical activities would likely cause a heart attack.

Dr. Max Franklin, a heart specialist, testified in behalf of claimant. According to his testimony he examined claimant in April, 1961, and from an electrocardiogram he found claimant had sustained an old posterior infarction and two more recent .anterior infarctions of undetermined dates. Under the conditions the witness said he would advise against active police duty to .avoid arteriosclerosis. He said that in his -opinion claimant’s heart attacks were induced as a direct result of the work required of him involving exertion; that claimant was not able to perform the duties of a police officer. He stated that if a person were suffering from high blood pressure such as claimant had, the occurrence involving the scuffle with the drunken driver could have caused a coronary infarction; that the exertion at the Municipal Opera could have caused the second infarction. He was asked: “You wouldn’t be able to tell, would you, from the information available to you whether a particular game of handball or a particular strenuous exertion on the police force in line of duty caused this particular heart condition? A. From what information I have, no.”

Appellants’ Exhibit No. 1 is the record of the proceedings under claimant’s application for accidental disability.

Appellants’ Exhibit No. 2, from the Board’s files, contains excerpts from the hearing on claimant’s application for accidental disability benefits.

Appellants’ Exhibit No. 3 is a communication dated June 13, 1958, from the Medical Director of the Police Department to the Chief of Police respecting claimant’s condition and the danger of his continued strenuous physical activity, suggesting that the condition was permanent but that the claimant could perform some less strenuous duties of the service.

Appellants’ Exhibit 4, dated February 4, 1961, is a report from a hospital to the Police Department on claimant’s condition of hypertension and notice that he had been discharged from the hospital for outside treatment.

Appellants’ Exhibit 5, dated February 17, 1961, consists of “conclusions” of three physicians of the Medical Board of the Alternative Police Retirement System as to the effect of the alleged injuries on claimant’s present condition, in view of his medical history to date. One physician stated therein that claimant’s “hypertension and sclerotic changes of arterial system— are contributing factors in Cardiac Complex. Initial Coronary Attack 1959 — precipitated by scuffle in line of duty.” The second physician reviewed claimant’s medical history, mentioned his hypertension as of 1959, the repeated angina attacks following the scuffle of 1959 and noted one infarction as of August 23, 1959. He did not otherwise state an opinion of the effect of the alleged injuries upon claimant’s present condition. The third physician stated that the scuffle in 1959, precipitated an infarction in May, 1959, which was transitory in effect; that the second attack was the result of the first.

Appellants’ Exhibit No. 6 is claimant’s letter enclosing his application for retirement benefits for ordinary disability and his request for a hearing on his claim for accidental disability as heretofore mentioned.

Appellants’ Exhibit 7 is claimant’s final application for ordinary disability.

Appellants’ Exhibit 8 is the police report of May 29, 1959, on the incident of claimant’s scuffle with the irate drunken driver which claimant contends was one of the causes of his accidental disability.

Appellants’ Exhibit 9 is claimant’s medical record in the Police Department showing dates of his sickness and the time lost, which included an entry of March 12, 1958 for “pains in the chest”; one dated May 29, 1959, for “chest pains”; one dated August 23, 1959, “heart condition”, and one of January 14, 1961, “hemorrhaging— result of heart medication”.

The appellants offered no proof at the hearing other than the foregoing documentary evidence.

The claimant’s Exhibit “A” is a letter dated June 20, 1957, from Dr. Smith to the Medical Director of the St. Louis Police Department, advising that claimant had severe hypertension since 1955, and should avoid active physical exertion and should be employed in a sedentary type of work.

Claimant’s Exhibit “B” dated June 11, 1958, is a second letter from Dr. Smith to the Medical Director of St. Louis Police Department restating claimant’s condition — and again urging that claimant be assigned to less strenuous duties.

Claimant’s Exhibit “C” is the letter of February 20, 1961, from Dr. Thoma to the Medical Board of the Alternative Police Retirement System read in evidence as hereinbefore noted.

At the close of the hearing by the Board of claimant’s reconsidered claim for retirement benefits for accidental disability, the Board found that claimant had a heart ailment as early as 1955; that he was currently suffering from a heart condition and was incapacitated for further police duty; that there was no causal connection between the claimant’s “present physical condition * * * and any accident or event occurring while in the discharge of his duty as a policeman”; that claimant “is not entitled to Accidental Disability Retirement Benefits, and his claim therefor is accordingly denied”. The Board reaffirmed its former allowance of benefits for ordinary disability.

Upon review in the circuit court the court decreed that the Board’s decision was not supported by competent and substantial evidence upon the whole record; that its findings were arbitrary and unreasonable and not based on substantial evidence; that its decision was based on hearsay evidence and should be reversed and the case remanded for further proceedings. It was so ordered.

Respondent concedes appellants’ Point III, namely, that the court erred in so far as it placed its judgment on the ground that the Board’s decision was based on hearsay evidence which, being relevant and received without objection, has probative force.

Respondent, asserting that the facts are undisputed, agrees with appellants’ Point IV, that the only issue on review in this case is the application of the law to the facts, and that under such circumstances the circuit court on review had, and this court on appeal now has, the power to weigh the evidence and to make their own findings. As we construe the case the vital fact as to whether, specifically, the claimant’s total and permanent incapacity for duty was “the natural and proximate result of” the two occurrences in 1959, as claimed, and at such “time and place”, is not admitted but is positively controverted. Section 86.-263. Hence we believe that neither the circuit court nor this court has the power and authority, under the record as a whole, to weigh the evidence for itself and to make its own findings of fact. Section 536.140(3).

The gist of the appellants’ remaining points I, II and V, is that the court erred in ruling that the Board’s decision was unsupported by competent and substantial evidence upon the whole record, which record must be viewed in the light most favorable to the decision of the administrative agency, and does support the Board’s decision, which was neither arbitrary nor unreasonable; that under the rule of due deference to the Board’s opportunity to observe the witnesses, its decision should be affirmed and the judgment of the trial court reversed. Section 536.140(3).

It is noted by the respondent that appellants do not contend that the claimant’s scuffle with the unruly prisoner and his exertion in parking cars at the Municipal Opera were not “accidents” in the legal sense. Respondent, however, cites in support of such construction of that term Buckner v. Quick Seal Inc., et al., 233 Mo. App. 273, 118 S.W.2d 100, 111, and Crow v. Missouri Implement Tractor Co., et al., Mo., 307 S.W.2d 401, 405(1). Because of the disposition which we must hereinafter make of the contentions in this case, it is not essential that such issue be considered or adjudged in this appeal.

It will be recalled that Dr. Franklin, while testifying that, in his opinion, the occurrence of a scuffle with a drunken driver on May 29, 1959, and the incident of the parking of cars at the Municipal Opera in August, 1959, “could have caused” the claimant’s coronary infarctions, he stated that from his information of the case, he could not tell that “a particular game of handball or a particular strenuous exertion on the police force in line of duty caused the particular heart condition”. It will be remembered that Dr. Smith testified that “people without high blood pressure get heart attacks”; that it was not certain that if claimant had refrained from strenuous physical activity he would have avoided his heart attacks. As stated, there was evidence that claimant had a family history of hypertension and hypertensive heart disease on both sides of his parentage; that personally he suffered from hypertension as far back as 1955; that he then and as late as 1958 or 1959, indulged in active physical exertion such as handball and like sports to a limited extent; that from 1955 he, from time to time, experienced severe chest pains and was frequently under the care of physicians for such affliction and in and out of hospitals for various periods of time for such treatments. He testified that in 1958, he suffered chest pains while walking his beat. In 1959, there was evidence of an old posterior infarction; that scars from heart attacks may form over a period of six weeks or a month; that the exact date it occurred could not be pinpointed.

It is apparent that under such record the evidence is conflicting as to whether claimant’s total and permanent incapacity for duty was the natural and proximate result of any accident or event occurring in 1959 while in the discharge of duty as a policeman “at some definite time and place.” The Board determined that fact in the negative. Thus the record does not present a situation wherein the Board had no function other than to apply the law to the facts, but the testimony was such as to vest in the Board the prerogative of determining the facts from the conflicting evidence. Hence, upon review the court may not weigh the evidence and make its own findings of fact, nor substitute its own judgment for that of the administrative agency. Section 536.-140(3).

Respondent further contends that the alleged accidental occurrences in 1959 were legal causes of claimant’s disability, even though claimant had an underlying disease which concurred with such accidents to produce his coronary occlusions. The authorities she cites are all cases under the Workmen’s Compensation Statutes, but under that procedure it is ruled that the Compensation Act contemplates latent or dormant ailments and existence of disease which have not impaired the employee’s ability to work, and will allow recovery if accidental injury arising out of or in the course of his employment, aggravates such existing infirmity “even though the particular accident would have produced no such result in the case of a normal and healthy individual.” Cheek v. Durasteel Co., Mo. App., 209 S.W.2d 548; Gegg v. St. Louis Independent Packing Co. et al., Mo.App., 271 S.W.2d 223; Lofton v. Armour & Co., Mo. App., 311 S.W.2d 350. The record in the instant case is replete with evidence of many and frequent instances when claimant’s heart condition had intermittently impaired his ability to perform the duties of his employment over a period of several years prior to the alleged accidental disability.

It appears to us that under the record the sole issue before the circuit court upon review of this case was whether or not under Section 22, Article V, Constitution of Missouri, 1945, V.A.M.S., the Board’s decision was authorized by law, was supported by competent and substantial evidence upon the whole record, and whether, under Section 536.140 RSMo 1959, V.A. M.S., the decision was arbitrary or capricious.

We conclude that the decision of the Board met the above constitutional and statutory requirements. For that reason we find that the circuit court’s judgment, should be reversed and the cause remanded with instructions to enter a judgment affirming the decision of the Board of Trustees. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DEW, Special Commissioner, is adopted as the opinion of the court.

Accordingly the circuit court’s judgment, should be reversed and the cause remanded with instructions to enter a judgment affirming the decision of the Board of Trustees.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    The CHIEF FREIGHT LINES COMPANY, a corporation, Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. 23558.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      Tom B. Kretsinger, James A. Broaddus, Kretsinger & Kretsinger, Kansas City, for appellant.
    George Schwartz, Jefferson City, for Division of Employment Security, Jefferson City, for respondent.
   CROSS, Judge.

This is an appeal by The Chief Freight Lines Company, a corporate common carrier of freight by motor truck, from a judgment of the Cole County Circuit Court affirming a decision of the Industrial Commission to the effect that appellant had acquired substantially all of the business of the Kansas Nebraska Express (a corporate common carrier of like nature), and that appellant therefore, stood in the position of Kansas Nebraska Express in all respects, under the provisions of Section 288.110 V.A.M.S., as to liability for employment security taxes and contributions.

At all times relevant to this case, both appellant and Kansas Nebraska Express (hereinafter referred to as KNX) were interstate common carriers of motor freight under respective certificates of convenience and necessity granted to them by the Interstate Commerce Commission, and were subject to the laws of the United States regulating interstate motor carriers. Likewise, both carriers were subject to the provisions of the Missouri State Employment Security Law.

Prior to November 1, 1958, and at a time when KNX was in poor financial condition, it was agreed by appellant and KNX that the former would “take over the assets and liabilities” of KNX, upon approval by the Interstate Commerce Commission, and that the assumption of those assets and liabilities would be the “purchase price for the company” (KNX). On or about November 1, 1958, appellant applied to the Interstate Commerce Commission for approval of the described sale agreement. During the pend-ency of that application, the appellant was granted temporary authority to operate as an interstate carrier under the certificate of public convenience and necessity then held by KNX, and pursuant to a lease agreement by the terms of which appellant paid KNX rentals in the sum of $400 per month.

On January 2, 1959, KNX ceased operations and turned over substantially all of its physical properties and facilities to appellant. Thereupon, appellant commenced operating between interstate points under KNX’s certificate and established a terminal in Omaha, Nebraska, equipping it with office furniture received from KNX. Appellant also utilized certain vehicles KNX had formerly used. The president of KNX and an office employee, a salesman, two city pickup men and three road drivers, all formerly employed by KNX, went to work immediately for appellant. Only one of KNX’s employees was not immediately employed by appellant. He was, however, hired by appellant three or four months later.

On May 5, 1960, the Interstate Commerce Commission entered an order denying its approval of the sale agreement and requiring appellant to cease operating under the temporary authority on or before June 5, 1960. On the latter date appellant complied with the order, after having continuously operated the business of KNX, in the manner above described, from and after January 2, 1959.

On the basis of the foregoing facts, it was held, in the first instance, by a deputy for the Division of Employment Security, that appellant “acquired substantially all of the business of Kansas Nebraska Express, a corporation, and, therefore, that The Chief Freight Lines Company stood in the position of Kansas Nebraska Express in all respects under the provisions of Section 288.110 R.S.Mo.Supp.” On appeal, the foregoing administrative determination was affirmed by the Appeals Referee of the Division of Employment Security. The decision of the referee contains findings of fact essentially as we have noted above and states the following conclusions of law:

“The Missouri Employment Security Law, Section 288.110 RSMo.Supp., provides in part as follows:
“ ‘Any individual, type of organization or employing unit which has acquired substantially all of the business of an employer, excepting in any such case any assets retained by such employer incident to the liquidation of his obligations, and in respect to which the division finds that immediately after such change such business of the predecessor employer is continued without interruption solely by the successor, shall stand in the position of such predecessor employer in all respects, including the predecessor’s separate account, actual contribution and benefit experience, annual payrolls, and liability for current or delinquent contributions, interest and penalties * * * \
“The appellant contends that it is not a successor to Kansas Nebraska Express because it did not buy the assets of Kansas Nebraska Express but only used certain equipment of the company temporarily under a rental agreement. “To ‘acquire’ means to gain by any means. The Law does not distinguish between a permanent and a temporary acquisition of a business. The term ‘business’ means a commercial or industrial enterprise. It refers primarily to the activities, processes or transactions which make up a commercial or industrial enterprise rather than the physical assets which may be used in the enterprise. (See also Union-May Stern Co. v. Industrial Commission, et al. [Mo.App.], 273 S.W.2d 766.)
“The evidence shows that prior to January 2, 1959, the business of Kansas Nebraska Express, an employer subject to the Missouri Employment Security Law, was that of a common carrier of motor freight operating under an I.C.C. Certificate of Convenience and Necessity between Kansas City, Missouri and Omaha, Nebraska, and to other points in northeast Kansas. Although Kansas Nebraska Express retained ownership of its physical assets, the appellant on and after January 2, 1959, under a rental agreement with Kansas Nebraska Express and with the permission of I.C.C. to operate temporarily under the Certificate of Kansas Nebraska Express, engaged in the business of a common carrier of motor freight in the same territory formerly served by Kansas Nebraska Express, used the same equipment formerly used by Kansas Nebraska Express, and employed all but one of the same employees employed by Kansas Nebraska Express. In so doing it acquired and continued the business of Kansas Nebraska Express, an employer subject to the Missouri Employment Security Law,
“By applying the Law to the facts as found, the Referee holds that as of January 2, 1959 the appellant, The Chief Freight Lines Company, a corporation, stands in the position of Kansas Nebraska Express in all respects under the provisions of Section 288.-110 quoted above.”

The Industrial Commission denied appellant’s application for a review of the decision by the appeals referee, which, however, is deemed to be the decision of the Industrial Commission for purposes of judicial review. Section 288.200 V.A.M.S. As heretofore stated, the circuit court affirmed that decision on review. Thereafter, this appeal was duly perfected.

There is no dispute as to the evidence and there is no contention that the evidence does not support the appeals referee’s findings of fact. Appellant admits that “The facts in the case are clear”. The question presented here is one of law. It is appellant’s sole contention that the circuit court erred in sustaining the appeals referee’s determination that under the evidence appellant acquired the business of KNX within the meaning of the Missouri Employment Security Law and thereby became liable for amounts owed to the employment security fund by KNX prior to November 1, 1958. It is appellant’s position that “The evidence and facts show that appellant made an unsuccessful attempt to acquire seller’s operating authority and that appellant acted in the capacity of a receiver or conservator in operating the certificate of the seller, which capacity is not the equivalent of a successor within the meaning of Missouri State Employment Law”. Appellant simplifies its single point by suggesting that “the sole question to be decided is the meaning of the word ‘acquire’

It is conceded by appellant that it took over the operation of the interstate business of KNX under an agreement to purchase, under a temporary rental agreement, and under a temporary operating authority granted by the Interstate Commerce Commission, and that it (appellant) so operated such business for 1.½ years, all for a money consideration of $400.00 per month. In so doing, appellant used and enjoyed not only the certificate authority held by KNX, together with KNX’s identity as a going business — but also actually utilized the vehicles and physical equipment owned by KNX, and hired all of KNX’s former employees. For all practical purposes, throughout the year and a half, appellant had been the beneficial owner of the business, with actual possession of it, and with unrestricted right to manage and control it, limited only by the duty to preserve the property, and to render service to the public. As the operator of the business it was appellant’s privilege to hire and discharge employees as it saw fit, and to set their wages. Appellant was obligated to pay the wages and salaries of those employees and all expenses and charges arising from the business operations. Correspondingly, it was appellant’s entitlement to collect and retain all revenue of the business.

Notwithstanding all the foregoing, appellant insists that we must hold that it “acquired nothing” in respect of the business of KNX. On the contrary, appellant says, it occupied merely the position of a receiver, or a conservator, to conserve the properties of KNX, and to protect the public’s interest, for the period of a year and a half during which the application to purchase was under consideration by the Interstate Commerce Commission, because that agency ultimately denied the application. In effect, it is appellant’s contention that the acquisition required by Section 288.110 V.A. M.S. is limited, in the present case, to a transfer of the properties of a motor carrier as finally approved and consummated under provisions of the Interstate Commerce Act, to-wit: 49 U.S.C.A. § 310a(b), which reads in part as follows:

“Pending the determination of an application filed with the Commission for approval of * * * a purchase, lease, or contract to operate the properties of one or more motor carriers, the Commission may, in its discretion * * * grant temporary approval, for a period not exceeding one hundred and eighty days, of the operation of the motor carrier properties sought to be acquired by the person proposing in such pending application to acquire such properties, * * *

Appellant predicates its present contention on the clause “sought to acquired by the person proposing in such pending application to acquire such properties”, as contained in the above quoted text of the statute. It is argued by appellant that by using the words “sought to be acquired” and the words “proposing” and “pending” (with reference to the word “acquire”), Congress intended that the temporary authority permitted under the statute “be something less than an acquisition”.

We are not persuaded by the foregoing argument that the federal statute has any substantial bearing on the meaning of the word “acquire”, as used in Section 288.110. We are concerned with the intention of Missouri’s legislature in enacting that statute — not the intention of Congress in the enactment of the laws regulating interstate commerce. Those federal statutes are not in pari materia with the provisions of Missouri’s State Employment Security Law. See Alabama Department of Industrial Relations v. Drummond, 30 Ala.App. 78, 1 So.2d 395, cert. den., 241 Ala. 142, 1 So.2d 402, wherein it was held that a definition of “labor dispute” contained in the federal Norris-LaGuardia Act was not determinative of the meaning of that term as used in Alabama’s unemployment insurance law. Our interpretation of Section 288.110 will be governed by substantive law applicable to it.

As- a preliminary determination, we hold that appellant was not, in any sense, a receiver or conservator of the business of KNX. It is quite clear from all the facts that appellant operated the business as a lessee, with all the rights, privileges and duties that accompany ownership. To that extent, appellant had an interest in the business property concerned.

The word “acquire” is one of very broad meaning. It is so conceded by appellant. In Morgan v. Fayette County Board of Education, 294 Ky. 597, 172 S.W.2d 64, the court stated, “The word 'acquire’ is comprehensive and includes the meaning of 'to gain by any means; to get as one’s own,’ and is synonymous with to obtain and to procure. Webster’s International Diction■ary”. It is significantly stated in Black’s Law Dictionary, “It (the word ‘acquire’) ■does not necessarily mean that title has passed. Godwin v. Tuttle, 70 Or. 424, 141 P. 1120, 1122”.

There is no Missouri case which construes the term “acquire” as it is used in the •statutory provision here involved. How•ever, both appellant and respondent have cited a Massachusetts case which has significant bearing on the instant question— Sea Crest Hotel, Inc. v. Director of Division of Employment Security, 330 Mass. .226, 112 N.E.2d 813. In that case the issue decided was whether a corporation, ■which had obtained, under a lease, substantially all of the assets of an investment -company which operated a hotel and was ■a contributing employer, had “acquired” such assets within the meaning of a provision of the Massachusetts Employment Security Law. In affirmatively deciding the question, the court stated:

“We infer, as did the judge below, that substantially all of the assets of the investment company passed into the petitioner’s control under the lease. The petitioner does not contend the contrary. The question therefore narrows down to whether one who obtains under a lease of the sort here involved substantially all of the assets of an employing unit can be said to have ‘acquired’ these assets within the meaning of section 8(d). The contention of the petitioner is that the word ‘acquired’ as used in this section refers to absolute ownership and to no lesser interest. We do not agree. The case of Commissioner of Insurance v. Broad Street Mutual Casualty Ins. Co., 312 Mass. 261, 44 N.E.2d 683, 143 A.L.R. 982, is relied on as supporting this position. While it is true that the opinion in that case states, 312 Mass, at page 263, 44 N.E.2d at page 684, that ‘The word “acquire” imports ownership, and is not satisfied by the mere custody or control that a receiver has’, it cannot be taken to have limited scope of section 8(d) to the extent here urged. Properly construed the language of the court in that case goes no further than to differentiate between the custody of a receiver and the requirement of section 8(d) that the successor employer obtain a real, beneficial interest, as distinct from a purely formal one, in the business, organization, or assets of his predecessor.
“The facts involved in the Broad Street case differ materially from those before us. There a receiver had been appointed for the purpose of liquidating the company, and not to continue its business. The receiver’s interest in the assets of the company was the custody or control necessary to the process of liquidation. In contrast, the interest taken by the petitioner in this case, while not a fee simple, was one of substance. The petitioner was authorized to continue the business formerly conducted on the premises by the investment company for a period of seven years.
* * * * * *
“To own property one does not necessarily have to have an estate in fee simple. One having a lesser estate may be said to have ownership of a sort. See Restatement: Property, § 10, comment c; Tiffany, Real Property, 3d Ed., § 2; Baltimore & Ohio Railroad v. Walker, 45 Ohio St. 577, 16 N.E. 475; Weinberg v. Baltimore & Annapolis Railroad, Md., 88 A.2d 575. It is not straining the concept of ownership unduly to say that a lessee ‘owns’ an interest in the subject matter of the lease and that when the lease is executed he has ‘acquired’ that interest. We are of opinion, therefore, that the ruling of the judge that ‘as a matter of law the petitioner had not “acquired” anything mentioned in § 8(d) of the act’ was error”.

Other than Sea Crest, appellant cites one additional case — Commissioner of Insurance v. Broad Street Mutual Casualty Ins. Co., 312 Mass. 261, 44 N.E.2d 683, 143 A.L.R. 982. It is apparent from the quoted text of Sea Crest that Broad Street has no application to the case before us. As we have shown, the instant appellant obtained possession of the business not as a receiver, but for the purpose of continuing it as owner, whereas, in Broad Street, the receiver took possession of the company’s assets for purposes of liquidation.

Without citing authority, appellant attempts to support its contention by further suggesting that the imposition upon it of liability for taxes and contribution under Section 288.110 would constitute a burden on interstate commerce. We find no merit in that suggestion.

It is our conclusion, as a matter of law, that appellant acquired substantially all the business of its predecessor, KNX, and continuously and solely operated the same during the period of time in question. Therefore, it must be ruled that as of January 2, 1959, appellant stands in the position of KNX in all respects under the provisions of Section 288.110 V.A.M.S.

Accordingly, the judgment of the circuit court is affirmed.

HUNTER, J., concurs.

BROADDUS, P. J., not participating.


author: SPERRY, Commissioner.

text:
    The PHILLIPS HOTEL OPERATING COMPANY, a Corporation, Respondent, v. LIBERTY MUTUAL INSURANCE COMPANY, a Corporation, Appellant.
    No. 23715.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      Don M. Jackson, Kansas City, for appellant.
    Albert Thomson and Mark J. Klein, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff operates a hotel and defendant is in the insurance business. Plaintiff purchased an insurance policy from defendant and, after having sustained a loss which, it claims, was covered by the policy and which defendant denied, plaintiff brought this suit. The court sustained plaintiff’s motion for a summary judgment in the sum of $8268.31. Defendant appeals.

While the policy was in effect one of plaintiff’s guests deposited with plaintiff a case containing jewels of a value in excess of $56000.00 and, a day later, the case and jewels were missing from the depository in which they had been placed by defendant’s agent. The method and manner of the disappearance is unexplained.

The owner of the property demanded payment of its value from plaintiff and, eventually, sued plaintiff therefor. Plaintiff notified defendant of the institution and maintenance of that suit and demanded that it defend the action and satisfy the loss. Defendant refused to do either and denied liability. Plaintiff, eventually, compromised the claim and sued for the sum of the judgment herein, which includes the amount paid by it, costs of $100.15, and attorney’s fees in the amount of $2500.00, a total of $8268.31.

The facts are as above stated and none are in dispute. The only question for resolution is the construction of the policy.

The policy, with its appendages, is a voluminous instrument consisting of many coverages, conditions, exclusions, qualifications, and endorsements. However, two sections only are essential to a solution of this case.

The policy refers to plaintiff throughout as insured and, under coverage “D”, binds defendant to pay for: “(1) loss of money and securities occurring within the premises or within a night depository in which such money and securities have been deposited by a custodian caused by the actual destruction, disappearance or wrongful abstraction thereof: (2) loss of other property or damages thereto caused by robbery within the premises, or by safe burglary, or attempt thereat, and damage to a locked cash drawer, cash box or cash register caused by felonious entry into such container within the premises, or attempt thereat, or by felonious abstraction of such container from within the premises, and damages to the premises by robbery — • * * *(Emphasis ours.)

Had the loss in this case been of money or securities belonging to plaintiff it is clear that proof of their value and of their disappearance, nothing more, would have been sufficient to entitle plaintiff to recover; but, under the coverage as here provided, had the loss been of any other property, including jewelry, further proof was required before recovery could be had under condition D; and no direct provision was made for any loss by a guest.

However, defendant caused to be attached to the policy what is denominated “amendatory endorsement” wherein it is stated:

“It is agreed that such insurance as is afforded by the policy under Coverage D also applies to money, securities, jewelry and other personal property, but not including manuscripts, records or accounts, belonging to guests of the insured deposited with and accepted by the insured for safekeeping, subject to the following provisions : * *

It is noted that, under coverage D, insured was covered for loss of money and securities, and was entitled to be reimbursed for such loss upon proof that such property disappeared. Plaintiff says that, therefore, defendant is liable for loss of money and securities of plaintiff’s guests upon proof of disappearance. But, defendant contends, since under coverage D it was not bound to pay a loss to insured for “other property” including jewelry, except upon proof of surrounding facts as required by the policy terms, it is not liable to pay under the terms of the amendatory endorsement relating specifically to losses suffered by guests, except upon proof of the facts of the loss.

However, defendant has overlooked the fact that in its amendatory endorsement it uses broad language, towit; “such insurance as is afforded by the policy upon coverage D”. That means the full coverage offered under coverage “D”, not the most limited coverage offered thereunder. The full extent of coverage thus extended to “money, securities, jewelry, and other personal property" of guests is also the fullest extent of insurance given to plaintiff. That includes, so far as insured is concerned, “money and securities”. That same quantum of coverage is given to insured’s guests by the chosen language of the endorsement; and it includes jewelry. No amount of weaseling can lessen the coverage given without narrowing the language used in the policy. Such was the intention of the parties, as is gleaned from their language, considering the business herein covered. Appleman, Insurance Law and Practice, Volume 13, Section 7385.

If the language used is not as clearly stated as we think, then the language is ambiguous and calculated to mislead and confuse the average layman without the services of a lawyer or phrase-maker. In such case we are bound to construe the language most strongly against defendant and most liberally for insured. We hold that the policy, as a whole, gives coverage for the loss of jewelry by a guest of insured upon proof that it disappeared from the depository of insured after having been deposited therein by insured’s custodian. Appleman, Insurance Law and Practice, Volume 13, Section 7401.

Defendant also contends that plaintiff may not maintain an action for loss of property of a guest. It arrives at this conclusion by processes of reasoning which are difficult to follow. Under par. 5 of the amendatory endorsement it is provided, in effect, that no action on the policy may be maintained except by insured. Insured paid a premium to defendant who, in turn, agreed to indemnify for the loss of certain property belonging to its guests and in its custody. If only insured, and no one else, could sue, and if we hold that insured cannot sue in this case, then the contract would he without force as to this kind of loss. Since the guest had no power to sue and only the plaintiff could maintain any suit on the policy, then we must hold that plaintiff was a proper party to maintain this suit. Otherwise the guest provisions of the contract are nullified.

Defendant also contends that plaintiff may not recover for the reason that the property itself was otherwise insured by its owner and so is excluded from coverage here under condition 10 of the policy. In Automobile Insurance Company of Hartford, Connecticut v. Springfield Dyeing Company, Inc., 3 Cir., 109 F.2d 533, 536, the court said that “other insurance” in a policy there considered, had reference to other insurance owned by insured, not insurance owned by some one other than insured. To the same effect is the holding in Export Leaf Tobacco Company v. The American Insurance Company of Newark, New Jersey, et al., 4 Cir., 260 F.2d 839 (pars. 8 & 9). We adhere to that rule.

Defendant also contends that plaintiff may not maintain this action in liability because the policy is one of “property” or “crime”, not liability insurance. The policy constitutes a contract of insurance against the loss of certain described property under certain specified conditions. Plaintiff was sued for loss of property under conditions covered by the policy. Defendant refused to acknowledge liability for the loss, to indemnify therefor, or to defend plaintiff as against the suit. Plaintiff hired counsel and, eventually, settled the claim for a fraction of its face value. It has a right to maintain an action against defendant for its failure to perform its contract. Plaintiff has recovered herein the actual damages it suffered and defendant may not complain.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.


author: MAUGHMER, Commissioner.

text:
    Reta Mae HALL, Claimant-Appellant, v. MID-CONTINENT MANUFACTURING COMPANY, Employer-Respondent, and Western Casualty and Surety Company, Insurer-Respondent.
    No. 23652.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      W. Don Kennedy, Nevada, Mo., for appellant.
    H. H. McNabb, Jr., Belisle & McNabb, Butler, for respondent.
   MAUGHMER, Commissioner.

This is a workmen’s compensation case. Appellant claims she sustained a hernia caused by an accident which occurred on July 7, 1959, and which she asserts arose out of and in the course of her employment. It is admitted that on July 7, 1959, defendant Mid-Continent Manufacturing Company was an employer, operating under the Missouri Workmen’s Compensation Law, that its liability was fully insured by the Western Casualty and Surety Company, that claimant was an employee and filed a time! r claim for benefits.

The Referee and the Industrial Commission found that claimant “did not sustain an injury by accident arising out of and in the course of her employment” and denied the claim. On review the circuit court affirmed. On appeal to this court claimant asserts (1) that the trial court erred in affirming the award of the Commission because her injury was the result of an “unusual strain” or “abnormal strain”, and therefore an accident within the meaning of the Act, and, (2) the cause should be remanded with directions that the Commission determine if claimant sustained any injury and if so, the extent of her disability. Since the Commission found “no accident” and hence no liability, it was unnecessary to determine the extent of injury or disability. Should this court determine on appeal that claimant suffered a compensable accidental injury, the cause will be remanded to determine the extent of disability, but if the Commission should be affirmed, such a remand would be unnecessary. We are, therefore, concerned primarily with claimant’s first point, namely, “Did she sustain an injury caused by accident arising out of and in the course of her employment”? The courts have many times declared and it is generally understood that we cannot substitute our judgment on a disputed question of fact for that of the Commission. What we must decide is whether or not that body could reasonably have made the finding it did. The burden is on claimant to prove a compen-sable injury.

On July 7, 1959, the employer Mid-Continent Manufacturing Company was engaged in building aluminum storm windows and doors at Rich Hill, Missouri. It employed about 75 persons of whom claimant was one. She worked in the factory — part of the time she would “lay up” material and part of the time she did “notching”. It was while “notching” that the injury occurred. In her description of this process, claimant said: “We would take the extrusion off the little cart, they were brought over to us by the saw men, inserted it in the notching machine, we tripped the machine, and it cut this notch”. The extrusions referred to were long pieces of aluminum. Two notches were cut by the notching machine in each screen to provide a space for the locks in each window. This machine was made of metal, was about five feet in height, heavy and was not anchored to the floor. It stood on four legs. The aluminum extrusions were inserted into the machine die at about waist level and then a “foot trip” was tripped by the employee’s foot to release the cutting die.

Claimant said the notching machine was “not in good working condition” at the time she got hurt,.that “when we tripped the machine it bent this AE material to such an extent that it was hard to pull out” and that when the aluminum strips were put into the machine and notched “it would stick”. She said this difficulty with the machine started during the summer of 1958, that the trouble continued during the winter and got worse —“stuck worse as time went on”. Some of the employees “tinkered” with it and they were told to “squirt oil on it”.

Mrs. Hall stated the machine “was always rather hard to pull through, — it would always stick a little”. Sometimes it took two of the women to pull it loose and sometimes they called the foreman. Claimant testified that there were days when no help was needed and on some days they had to have help three or four times to loosen it. They built about 200 windows per day, which required 400 notches. Mrs. Hall would break the material loose sometimes by getting “a foot up on the machine and get hold with both hands and pull this way and wiggle it that way”. At other times a big rubber mallet was procured and “pounded on it to get it loose”. Her written statement (Exhibit L) also recited that the extrusions frequently stuck, and pulling and straining were necessary to remove them.

It was claimant’s testimony that on the occasions prior to July 7, when she pulled, she could feel pain momentarily, but “it didn’t stay with me”. On the day of the injury a piece of aluminum got stuck. The employee said: “I pulled and strained with it as hard as I could. * * * While I was pulling it felt like I tore everything loose, is the way it felt. There was an intense pain there in the lower part of my abdomen”. The foreman came by, loosened the material and Mrs. Hall worked the rest of the day on another type of work.

A few days later she visited Dr. Boyd, an osteopath. The next week she stopped working. On July 25, she commenced taking treatments from Dr. Post, a chiropractor. In May, 1960, she consulted a Dr. Allen, M. D., at the suggestion of her attorney. Dr. Allen diagnosed her condition as “extensive abdominal adhesions and a hiatus hernia.” He thought it would take some unusual strain to cause her complaints and condition. Mrs. Hall was 47 years of age and claimed her health had been good prior to July 7, 1959.

On cross-examination Mrs. Hall admitted that several times prior to July 7, the machine had become stuck and she had “pulled as hard as she could", the same as on July 7. She said that Dr. Post had treated her for a back injury, which she thought was “connected with her injury” although she had previously suffered with back trouble.

The Industrial Commission affirmed the award of the referee and adopted his findings of fact. Therefore, we set out such findings of fact and conclusions of law in toto:

“I find from the evidence that the employee did not sustain an injury by accident arising out of and in the course of her employment.
“The employee’s testimony and her statement (Claimant’s Exhibit L) indicate that ‘AE’ aluminum extrusions frequently stuck in the ‘notching’ machine operated by the claimant, and pulling and struggling would be necessary to remove the extrusion from the machine after the notches had been cut. This was a normal routine incident of the employment, and when sticking occurred it was routine for the employee on occasion to place her foot on the machine for additional pulling power as she struggled to remove the extrusion. Although ‘AE’ extrusions did not invariably stick it was not unexpected or unusual when they did. While attempting to remove a stuck extrusion in the usual manner employed in attempting to remove a stuck extrusion, the employee felt an intense pain in her stomach and allegedly sustained the injury complained of. She testified she was pulling as ‘hard as she could’ but on cross examination admitted that in the past she pulled as ‘hard as she could’ with her foot braced against the machine, and it does not appear that she was exerting any more force in any different manner on the occasion in question than she had in the past when removing a stuck extrusion. I find no ‘abnormal strain’ within the meaning of Crow v. Missouri Implement Tractor Co. [Mo], 307 S W2d 401; State ex rel United Transports, Inc. v. Blair [352 Mo. 1091], 180 SW2d 737, of Williams v. Anderson Air Activities, [Mo.App.], 319 SW2d 61.
“I do not believe that the strain can be said to have been abnormal or unexpected in the sense that it was more strain than the claimant had anticipated. Only the result, to wit; the injury, can be said to have been unexpected.”

Claimant is here attempting to recover workmen’s compensation benefits by reason of an accident which she allegedly sustained. Section 287.020(2) gives this definition of. “accident” as meant by the Act:

“The word ‘accident’ as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury”.

The question as to just what facts and cn cumstances constitute an accident so as to be compensable under Missouri Workmen’s Compensation Law has been disputed for many years. In determining the law and applying it to various facts and situations the Missouri courts have not been completely consistent.

In Howard v. St. Louis Independent Packing Co. et al., Mo.App., 260 S.W.2d 844, claimant’s duties required him to carry quarters of beef from one point to another. The employee was carrying an unusually heavy quarter, felt a sudden pain in his back and sustained an injury. The Commission found there had been an accident and then found specifically that the “Employee suffered unusual strain when a forequarter of beef struck his left shoulder with unusual force as he swung said beef on his shoulder”. The St. Louis Court of Appeals ruled that “where the injury results from the intentional act of the employee in exerting muscular force”, it cannot be classified as an accident under the Act unless there is “some unusual occurrence, such as a slip, or a fall or an abnormal strain” and reversed a finding for claimant. This Howard case was specifically overruled by the Supreme Court en Banc, in Crow v. Missouri Implement Tractor Company and Hardware Mutual Casualty Company, Mo., 307 S.W.2d 401, 405. In the Crow case the Supreme Court held that a slip or fall was not necessary but that a recovery could be founded upon an unusual strain or exertion without a slip or fall. Particularly in the Crow case claimant sustained an injury while he was holding up the elevator to a corn picker. The Commission found factually that he suffered an “abnormal strain” which was not preceded by any “unusual or unexpected occurrence”, and denied compensation. This elevator and corn picker were not being handled in the usual normal way. On this feature we quote from the facts résumé on page 402 of the opinion: “The machine was new and due to paint on the equipment, the turnbuckla could not he turned and the elevator adjusted in the usual way”. (Italics added). The Supreme Court ruled that such an “abnormal strain” sustained under these circumstances could become the basis of an affirmative award. Examples were cited, namely:

“In Baird v. Gleaner Harvester Corporation, Mo.App., 172 S.W.2d 892, the employee was injured because some extra weight was suddenly shifted to him and he sustained an injury to his back. In State ex rel. United Transports, Inc. v. Blair, 352 Mo. 1091, 180 S.W.2d 737, the employee was injured while attempting to loosen a lug which held a tire on an automobile”.

It will be noted that in these two examples the strain was not only “abnormal” but occurred when the employee’s working procedure had deviated from the normal routine. On page 405, the opinion made reference to and quoted approvingly the rule announced by the Supreme Court of Maryland as follows:

“The court stated the general rule to be as follows [Kelly-Springfield Tire Co. v. Daniels, 199 Md. 156], 85 A.2d [795] loe. cit. 797(1) : ‘This broad rule, which has been adopted quite generally in the United States following the decisions in England, has not been fully accepted in Maryland. In this State the sudden and unexpected rupture of some portion of the internal structure of the body, or the failure of some essential function of the body, is held to be an accidental injury only when it results from some unusual strain or exertion of the employee or some unusual condition in the employment’ ”.

The Springfield Court of Appeals (Brotherton v. International Shoe Company, Mo. App., 360 S.W.2d 108) has recently reviewed and discussed this whole matter. Brotherton, while unloading a perforator, was using a long wrench with pipe over the handle of the wrench. He moved out on the end of the pipe and bounced up and down to pry the perforator loose. His foot slipped and he hurt his back. In part, the Commission found “while employee’s exertions in pulling on said pipe, may have been unusual, abnormal and outside of the scope of his normal activities, the evidence does not so indicate” and denied compensation. We shall by-pass the slipping feature of the Brotherton case as not pertinent to our case where no slipping is alleged. The appellate court held that Brotherton’s abnormal and unusual strain was sufficient to constitute a compensable accident and reversed the Commission. The court referred to and again approved its statement of the rule as declared in Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, as follows:

“[W]here an employee suffers an unexpected and abnormal strain (at least while he is engaged in doing something beyond and different from his normal routine) and, as a result thereof, sustains an injury which is not the result of orderly natural causes, the injury is an accident within the meaning of sec. 287.020(2)”.

From a study of the above authorities we can arrive at two rather definite conclusions: (1) It is not necessary that claimant slip or fall. (2) If claimant suffers an injury resultant from an “abnormal strain” and while he is engaged in doing something different from his normal working procedure, it is an accident under the Act and compensable. Where such a situation exists our courts have ruled accidents and approved recoveries, especially where the Commission has made an affirmative award and findings. However, if, for example, an employee’s customary duties require him to regularly lift 150 pound sacks of feed or swing a pick mining coal and on one of these occasions while lifting or swinging, he injures his hack, we doubt if he has suffered an accident within the meaning of the Act or under the Missouri decisions herein cited.

We shall discuss five of the cases to which appellant has specifically invited our attention:

In Keller v. Bechtel, McCone, Parsons Corp. et al., Mo.App., 174 S.W.2d 925-927, claimant was a laborer engaged in digging a ditch. His duties were to shovel mud and dirt over the side of the ditch a distance of five or six feet. He had been doing this work all day and did it the day after the injury. At quitting time he felt a pain on his right side which was diagnosed as a hernia. The court held there was no accident and approved the action of the Commission denying compensation. The court also made this comment:

“If the evidence is such as to authorize a finding either that there was an accident or that there was not an accident, and the commission, who are the triers of the facts, find against the employee’s claim, that finding is necessarily conclusive on appeal. Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236, 241”.

In Higbee v. A. P. Green Fire Brick Co., Mo.App., 191 S.W.2d 257, 258, claimant suffered a hernia while lifting a barrel of oil. Lifting oil barrels was a part of his regular work. The court said:

“In this case it was a part of the duties of this employee to lift the barrels of oil, which happened to be laying sideways, to an upright position. He had done this in the regular course of his employment many times on prior occasions. On this occasion he used no more strain or exertion than was ordinarily incident to such work. There was no unexpected or unforeseen event in the act of lifting the barrel. What he did was intentionally done and was done exactly in accordance with preconceived design. There was no mishap, either in the act of lifting or in the environment. He did not slip or fall or use any more exertion or greater strain than the regular exertion and strain that was usual and ordinary in lifting a barrel of oil to an upright position”.

Compensation was denied in this case.

In Sciortino v. E. Salia & Co., Inc., et al., Mo.App., 157 S.W.2d 535, compensation was denied where the employee was injured while lifting crates of oranges, this being his regular work.

Back in 1929, (Carr v. Murch Bros. Const. Co. et al., 223 Mo.App. 788, 21 S.W. 2d 897), the court approved a Commission award allowing compensation for aggravation of an existing hernia sustained when a locomotive engineer reached up over his head to turn off a steam valve. Apparently this case is some authority for the theory that the result (injury) is the accident or unusual event, regardless of the fact that only regular and usual duties were being performed.

This court (Guillod v. Kansas City Power & Light Co., 224 Mo.App. 382, 18 S.W.2d 97), approved a Commission award of compensation where the employee, after running an electric service line to a house, lifted a coil of wire into a truck and sustained an injury.

Judge Stone in his concurring opinion (Alexander v. Saunders Mills, Inc. and Employers Mutual Liability Ins. Co. of Wisconsin, Mo.App., 289 S.W.2d 483, 489), noting the variance in some of our Missouri court decisions in this field, said: “Much has been written (not all of which is wholly consistent or readily reconcilable) by our appellate courts concerning the term ‘unexpected or unforeseen event.’ ” Then after reference to the cases to which we have referred and some others, Judge Stone continued :

“Without pausing to discuss, undertaking to differentiate, or bothering to overrule expressly any of the foregoing holdings, our courts have, in more recent decisions, stated in plain and unambiguous terms that the injury or death does not constitute the ‘accident’ or the ‘event’ contemplated by the Compensation Law, and that the ‘event’ is not the result but that which produces the result”.

In our case Mrs. Hall does not claim that she slipped or fell. She was doing the same work that she had done for months and doing it in the same way. Her method in attempting to loosen the machine was identical with the method used by her on various other occasions and over a period of many months. The Commission found “it was routine for the employee on occasion to place her foot on the machine for additional pulling power as she struggled to remove the extrusion”. There is substantial evidence to support this conclusion. The Commission found that on this occasion she was not exerting any more force or pulling in any different manner than on other occasions. And further, the strain cannot be said to have been abnormal or unexpected— “Only the result, to-wit; the injury, can be said to have been unexpected”. We believe that all of these conclusions are supported by the evidence. It must be remembered that this court, as to factual findings, cannot substitute its judgment for the finding of the Commission, but rather must affirm that body unless the findings are unsupported by substantial evidence.

It is our ultimate conclusion that under the law and the facts the Commission was correct in holding that “employee did not sustain an injury by accident arising out of and in the course of her employment”.

The judgment of the circuit court approving the finding of the Commission denying compensation is affirmed.

SPERRY, C., concurs

PER CURIAM.

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

All concur.


author: HUNTER, Judge. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. James A. CIARELLI, Appellant.
    No. 23665.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.
    Rehearing Denied April 1, 1963.

      Louis Wagner, Kansas City, for appellant.
    William A. Collet, Pros. Atty., Don Hutson, Asst. Pros. Atty., Kansas City, for respondent.
   HUNTER, Judge.

Appellant, James A. Ciarelli, was convicted by a jury of the misdemeanor charge of receiving stolen goods in the amount of less than fifty dollars. He was fined $500.00 and sentenced to six months in the Jackson County jail. He has appealed, his sole contention of error being that there was no evidence upon which his conviction could be sustained.

The Courts of Appeals are courts of general appellate jurisdiction. The Supreme Court’s jurisdiction is limited to the instances specified in the Constitution. Mo.Const, Art. V, §§ 3, 13, V.A.M.S. Jurisdiction of the appeal from the misdemeanor conviction not involving any of the constitutional grants of appellate jurisdiction to the Supreme Court, is in this court. State v. Harold, 364 Mo. 1052, 271 S.W.2d 527; State v. Bradley, Mo.App., 247 S.W.2d 351.

According to the evidence, on August 5, 1960, between the hours of 12:00 a. m. and 7:30 a. m., the Lincoln Junior High School, 2102 East 23rd Street, Kansas City, Missouri, was broken into and six fans were stolen. These particular fans were easily identifiable, by size, color, and manufacturer’s number. Two of them were marked by stickers stating respectively “nurse’s room” and “vice-principal’s office”. The fans were the property of the School District of Kansas City, Missouri, having been purchased on June 16, 1957, at a cost of $34.04 per fan. Other testimony placed their present value at approximately $5.00 per fan.

On that same day, August 5, 1960, about 4:30 p. m. at about 22nd Street and Paseo in Kansas City, James Worthington, a motorcycle officer of the Kansas City Police Department working at a speed check, observed three men coming out of the weeds near his location. We turn to his testimony concerning what then occurred: “The point where I sat is on a hill like and I glanced up there and I saw three men in the weeds up there. It is a wooded area at this-location. * * * Well, they were coming out of the weeds at the time, * * * and the Park Department had cut the grass in there, so you could see everything that was going on. They had just come out of the weed patch. * * * When I glanced at them, one of them throwed something in the weeds. * * * One of them went back in the weeds (and was not seen again) and two of them continued on toward the car. * * * By the time I got my wheel turned around and stopped they had got in the car and were sitting there. * * * At that time they got out of the car and approached me, and I asked them what they were doing in the weeds and they said, 'Nothing’. * * * I said, ‘Well, you must be doing something.’ And I said, ‘What were you doing?’ * * * I said, ‘You must have been doing something in there.’ They said, ‘No; we weren’t doing nothing.’ And I said, ‘Were you dumping cans?’ * * * They said ‘No’. And, I said, ‘What were you doing ?’ They said, ‘Nothing’. I said, ‘Well you might as well tell me because I am going to look.’ * * * At that time I got off my wheel and started towards the weeds where I had last seen them at, and at this location I found four electric fans. * * * I asked them if they knew anything about them, and they said, ‘No’.”

Officer Worthington then placed these two men, later identified as Frank Amaro and appellant James A. Ciarelli, under arrest. “I asked them whose car it was and Frank (Amaro) said it was his, and I said, ‘May I see your car keys?’ He gave me his car keys and I opened the trunk up and there was two more fans in the trunk. * * * Q. Did you then ask this defendant and Amaro what they knew about the fans? A. Yes. He said he didn’t know nothing about them, and we kept talking and then he stated that he had met a colored man, a colored boy, who told him where the fans was at and he was supposed to meet him there at 4:30, * * *. Q. What you are telling us is that after you found the fans in the trunk of the car, then this defendant told you a different story, is that right? A. Yes. Sir.”

The two men were taken to Police Headquarters and questioned by Officer Schump who testified, “I asked him (Ciarelli) how he happened to find out about the fans or why he was at that location. He (Ciarelli) stated on the afternoon, the early afternoon of August the fifth he was stopped on the street between 11th and 12th on Cherry by two colored boys, who stated that they had some fans hidden in the weeds at 22nd and Paseo and they wanted to sell them. * * * Well, Mr. Ciarelli stated to me that he told these boys he was not interested in buying these fans, but that later on that afternoon he met a friend of his and they were talking about this, and they decided to go out and take a look at them, which they did. He said they went to 22nd and Paseo where they found six fans hidden in the weeds, and that he had loaded two of the fans in the trunk of this friend’s car. * * * Q. Whom did Ciarelli say had loaded the fans in this car? A. He said that he had. He had loaded these fans in the trunk of his car when they were arrested. * * * Mr. Ciarelli stated that he and this other fellow had talked about it and they decided to go get the fans. They were going to take them somewhere else and hide them and then call the police.”

Frank Amaro, who earlier had pleaded guilty to a similar charge, testified on behalf of Ciarelli. Amaro stated he was an employee of Bruno Bonding Company; that he, not Ciarelli, was the one approached by a colored boy about the fans; that he “called burglary but no one was there”; that he had invited Ciarelli to go along for the ride without telling Ciarelli anything about the fans; that he, not Ciarelli, went into the weeds, located the fans and put them in the car, and that Ciarelli never got out of the car but sat in it reading a newspaper; that he intended to bring the fans to the Police Department but was arrested before he could do so.

On rebuttal, Officer Schump testified he had questioned Ciarelli and Amaro together ; that Amaro had stated he had been contacted by Ciarelli about “some fans hidden out there in the weeds”; that they went there to get these fans; that Ciarelli loaded two of them into his (Amaro’s) car just before they were arrested; and that Amaro never mentioned he was approached by a colored boy.

Sedtion 560.270, RSMo 1959, V.A.M.S., provides: “Every person who shall buy, or in any way receive, with intent to defraud, any property that shall have been stolen from another, knowing the same to have been stolen, shall, upon conviction, be punished in the same manner and to the same extent as for the stealing of the property so bought or received.”

We proceed to examine the evidence to see if it fails to make a submissible case under the terms of the statute, as defendant contends.

First, is there evidence that the property has been stolen by a person other than the one charged with receiving it? Two witnesses for the State, George Whisonant, assistant custodian, and H. I. Harwell, Principal of Lincoln Junior High testified in detail to the effect that these particular six fans in question belonging to the. Kansas City School District were stolen from the school on August 6, 1960. This evidence provides an affirmative answer to the question propounded, and appellant does not seriously contend otherwise.

Second, is there evidence that the person charged received the stolen property? Appellant vigorously asserts there was no proof of possession, physical or otherwise, by him, saying the two fans were found locked in the trunk of another person’s car, citing State v. Watson, Mo.Sup., 350 S.W.2d 763; State v. West, 226 Mo.App. 1149, 49 S.W.2d 274; State v. Nelson, Mo.App., 21 S.W.2d 190, and State v. Huff, 317 Mo. 299, 296 S.W. 121. Appellant has overlooked the testimony of Officer Schump who stated that Ciarelli told him that he, Ciarel-li, had gone to the place the fans were hidden to get them; that he, Ciarelli, had loaded two of them into the car trunk, and that they, Amaro and Ciarelli, were going to take them to another place and hide them. Appellant also has overlooked the rebuttal testimony of Officer Schump to the effect that Amaro told him in Ciarelli’s presence that it was Ciarelli who contacted him about the fans and that it was Ciarelli who loaded two of them in the car trunk. This testimony is sufficient to support a jury finding that appellant had taken possession of the stolen property — or, stated differently, that appellant did “receive” the stolen property within the meaning' of the statute. Also, Officer Worthington’s testimony previously quoted must be considered as additional evidence bearing affirmatively on the issue of whether appellant did “in any way receive” the stolen property.

Third, is there evidence that the receiver knew or believed the property was stolen at the time he received it? This also must be answered in the affirmative.

As stated in State v. Hicklin, 358 Mo. 1016, 218 S.W.2d 564, 565, “It is often difficult to make direct and positive proof of the accused’s knowledge the goods were stolen, and this element may be inferred from certain facts and circumstances.” ;

In this case the facts and circumstances from which the jury could infer that appellant knew the fans were stolen property include: (1) The testimony that appellant learned about the six fans under very suspicious circumstances — i. e., he learned about them on the street from an unknown, unnamed colored boy who had them hidden in some weeds; (2) appellant and two others were observed in the weed patch where the fans were hidden, and one of the three fled, and was never identified; (3) appellant’s statement at the time, including the highly conflicting stories he told; (4) appellant’s statement he was going to move the fans to another place and hide them; (5) Amaro’s statement he was going to call the police about them indicating he knew they were stolen coupled with his statements he and appellant had discussed getting the fans from where they were hidden in the weeds.

It is the rule that a jury is permitted to draw from the evidence such reasonable inferences as the evidence will support. Morris v. E. I. Du Pont De Nemours & Co., 341 Mo. 821, 109 S.W.2d 1222(7). With that rule in mind it is clear that there was sufficient evidence from the conduct and behavior of appellant, the character of 'the persons who approached him to make a sale, the circumstances under which he was approached; his reaction to the approach; the kind and quantity of property offered; the place where such property was kept; what he intended to do with the property; how he acted when confronted by the officer and requested to explain his possession of it; and other suspicious circumstances unusual for honest transactions to sustain a finding by the jury that appellant knew or believed the fans were stolen property at the time he took possession of them. See, State v. Levan, 306 Mo. 507, 267 S.W. 935; State v. Kosky, 191 Mo. 1, 16, 90 S.W. 454, 459; State v. Woodall, Mo., 300 S.W. 712.

Fourth, is there evidence that the person who received the stolen property did so with the intent to deprive the owner of his interest therein — or as the statute expresses it, “with intent to defraud”? Again, our answer is in the affirmative. In State of Missouri v. Harris, Mo.Sup., 313 S.W.2d 664, 670, our Supreme Court in defining the phrase “with intent to defraud” said, “An intent to defraud indicates a purpose or design to deprive someone of a lawful right, interest, or property by fraudulent means and is inconsistent with an intent to return the property to its owner.”

Added to the circumstances set out above concerning appellant’s guilty knowledge that the fans were stolen property is his statement when approached by Officer Worthington that he was doing “nothing” in the woods; his concealment of knowledge of the fans until confronted with them; and his inconsistent explanations of his possession of them, and what he intended to do with them. These acts and statements are inconsistent with an intent to return the property to its owner or to the police and bear the reasonable inference that at the time appellant received the property he had no intent to return it to its owner or to the authorities but rather obtained it with intent to deprive someone of his lawful ownership. The effect of this evidence is such as to convince that there is no merit in appellant’s contention that there is no substantial evidence to support a jury finding that appellant received the stolen property with intent to defraud.

We have read and considered all of appellant’s citations, as well as his various contentions concerning the lack of adequate evidence to make a submissible jury case. For the reasons aforesaid it is our opinion that there is sufficient and substantial evidence to support the submission of the case to the jury and to support the jury’s verdict.

The judgment is affirmed.

All concur.

On Motion for Rehearing

PER CURIAM.

Appellant contends in our opinion we have permitted extrajudicial statements, admitted over objection, to be considered in proving the corpus delicti without necessary independent proof thereof.

As stated in the recent case of State v. Harris, Mo.Sup., 313 S.W.2d 664, 670, “Under the present statute the offense of receiving stolen property connotes receiving such property, knowing it to have been stolen, and with a purpose or design to deprive someone of a lawful interest or property right therein.” Essentially these are the elements comprising the corpus delicti of the crime.

It is the established law that when the corpus delicti has not been sufficiently proven, an uncorroborated extrajudicial confession or statement in the nature of an admission of guilt cannot be regarded as evidence tending to show guilt. Yet this rule does not require full proof of the body of the offense, independent of the confession or statement. As stated by our Supreme Court in State v. Deyo, 358 S.W.2d 816, 819, “If there is evidence of corroborating circumstances independent of the confession, which tends to prove the offense by confirming matters related in the confession, both the corroborating circumstances and the confession may be considered in determining whether or not the corpus delicti has been established. (Citations omitted.) We have said only slight corroborating facts have been held sufficient (see State v. Truster, Mo.Sup., 334 S.W.2d 104, citing cases), and, notwithstanding the general practice, it is not essential that the independent proof of the corpus delicti come first in the order of proof.”

Defendant does not question that there is ample proof that the fans were stolen property. It is usually difficult if not impossible to adduce direct and positive proof of guilty knowledge, and this element of the offense may be inferred from facts and circumstances in evidence. State v. Ham, Mo.Sup., 104 S.W.2d 232, 233; State v. Eggleston, Mo.App., 27 S.W.2d 726, 728. The evidence, without considering the extrajudicial statements of defendant, tended to prove that Ciarelli either personally or acting in concert with the others present with him received the fans and knew they were stolen when he received them, (State v. Brown, Mo.Sup., 332 S.W. 2d 904, 909) and also tended to prove defendant had a purpose or design to deprive the owner of the fans of its property right therein. As stated in State v. Brown, supra, “ * * * the issue of ‘intent to defraud’ has now been added by the 1955 amendment * * * but such intent may be inferred from the facts shown.”

There would be no useful purpose served in restating the independent evidence of corroborating circumstances tending to prove the constitutive elements of the crime. The corpus delicti was sufficiently proved to permit the evidence of the questioned extrajudicial statements. The motion for rehearing is overruled.