author: STONE, Judge. STONE, Judge.

text:
    Ellie Marie GARRARD, Claimant-Appellant, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Respondent.
    No. 8202.
    Springfield Court of Appeals. Missouri.
    Jan. 6, 1964.
    Motion for Rehearing or to Transfer Overruled Feb. 27, 1984.

      Cable & Stephenson, Kennett, for claimant-appellant.
    Elmore G. Crowe, Edward D. Summers, Jefferson City, for defendant-respondent.
   STONE, Judge.

Ellie Marie Garrard (hereinafter called claimant), who had been receiving aid to dependent children (hereinafter referred to as ADC) under Section 208.040, was removed from the rolls on September 15, 1961, by the Division of Welfare (hereinafter called the Division) because,' on reinvestigation of the case, the “medical review team” in Jefferson City concluded that the two children born to and residing with claimant and her husband, William Grady Garrard (hereinafter called Grady), were no longer deprived of parental support and care by reason of his physical incapacity. Claimant duly appealed to the Director of the Department of Public Health and Welfare, a hearing thereafter was conducted by a referee, and upon the record then made the Director found that “while claimant’s husband [Grady] may have some disabilities he does not have such a physical or mental defect, illness or disability that prevents him from performing any gainful work” and that, “therefore, claimant is, at this time, ineligible for Aid to Dependent Children benefits.” Sec. 208.080. On subsequent appeal, the circuit court afiSrmed the Director’s decision. Sec. 208.100. Still complaining, claimant brings the case to us.

Only two questions were, or properly could have been, presented to the circuit court, i. e., whether a fair hearing was granted to claimant and whether the Director’s decision was arbitrary and unreasonable [Sec. 208.100(5)] ; and we are limited to the same two questions, both of which have been briefed and argued here. Powers v. State Dept. of Public Health & Welfare, Mo.App., 359 S.W.2d 23, 25(1).

In support of her point that she was denied a fair hearing, claimant complains (1) that her counsel “was deprived of the right of examining a witness from a certain document purported to be that witnesses’ (sic) report,” (2) that inadmissible evidence and exhibits were received over objection, and (3) that the referee indicated “by certain remarks and questions” bias and prejudice against claimant. We treat of these seriatim.

The “certain document” mentioned in the first complaint was a medical report (on a Division form) dated January 6, 1961, by Dr. R. L. Palenske, Grady’s physician since 1955 and a witness for claimant. In the course of this witness’ examination by the referee, Dr. Palenske had confirmed the authenticity of the report and it had been identified as Division’s Exhibit 1. After the referee’s examination had been concluded, claimant’s counsel put two additional questions to Dr. Palenske, neither of which referred to Exhibit 1, and the referee returned with another question, likewise unrelated to that exhibit. With no recess indicated, the transcript then shows that the referee offered Exhibit 1 and that claimant’s counsel responded: “I am going to, as a matter of course, object to the admission of this since I didn’t get toy hands on it until the doctor left.” But the statement of counsel, not sworn as a witness, did not prove itself or constitute evidence. City of Rolla v. Riden, Mo.App., 349 S.W.2d 255, 257; Wilson v. Motors Insurance Corp., Mo.App., 349 S.W.2d 250, 254(4); Engle v. Ferrell, 126 Mo.App. 577, 581, 105 S.W. 23, 24(5). And the transcript, which we must take as it comes to us [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); Miller v. Dowling, Mo.App., 360 S.W.2d 345, 348(3); Baker v. Missouri National Life Ins. Co., Mo.App., 372 S.W.2d 147, 155(11)], otherwise does not show either that Dr. Palenske had left before Exhibit 1 was offered or that claimant’s counsel theretofore had made any effort whatever to “get my hands on it.”

The second complaint is directed to (a) leading questions by the referee to witness Glass, a caseworker, and (b) the admission in evidence of Division’s Exhibits 2, 3 and 4. As to the complaint about leading questions, examination of the transcript discloses that claimant’s counsel objected to only one question put to witness Glass and that question was not answered. Even in appellate review of a jury-tried civil case, we would accord no consideration to a belated objection, first interposed here, to the form of questions propounded upon trial. Cf. Faught v. Washam, Mo., 329 S.W.2d 588, 599(17); Stanziale v. Musick, Mo., 370 S.W.2d 261, 266(6). Certainly we should not be more critical of the conduct of an administrative hearing, particularly with respect to a matter, such as leading questions, so frequently found in contested procedures.

Turning to the exhibits, we find that Exhibit 2 purported to be an unsigned copy of a medical report dated August 14, 1961, from Dr. Charles F. Wilson of Cape Girardeau, to whom Grady had been directed by the Division for examination; that Exhibit 3 was a two-page unsigned “social information summary” which, on the second page, included the finding of the “medical review team” in Jefferson City; and that Exhibit 4 purported to be a six-page unsigned report from the Veterans Administration Hospital at Memphis, Tennessee, where Grady had been confined for observation and examination from June 3 to July 1, 1961. The reception of evidence in hearings of this character should be governed by the rules of evidence as applied in civil cases [Ellis v. State Dept. of Public Health & Welfare, 365 Mo. 614, 622, 285 S.W.2d 634, 640(7), affirming Mo.App., 277 S.W.2d 331, 335(5); Burley v. State Social Security Com’n., 236 Mo.App. 930, 163 S.W.2d 95, 96(5)], excepting insofar as such rules may be modified and relaxed by permissible legislative enactments. See Sec. 208.075, RSMo 1963 Supp.; Sec. 536.070. Exhibit 3 clearly was an inadmissible document. Ellis, supra, 365 Mo. loc. cit. 622, 285 S.W.2d loc. cit. 640. Although upon rehearing the signed medical report of Dr. Wilson would be admissible [Sec. 208.075, RSMo 1963 Supp.] and the report from the Veterans Administration Hospital might, upon a proper showing, become admissible under the Uniform Business Records as Evidence Law [Secs. 490.660 to 490.690; Ellis, supra, 365 Mo. loc. cit. 624-625, 285 S.W.2d loc. cit. 641-642], there is no doubt but that Exhibits 2 and 4 should not have been admitted upon the record before us. Ellis, supra; Barnes v. State Dept. of Public Health & Welfare, Mo.App., 320 S.W.2d 88, 91(3). In fact, capable counsel for the Department frankly so recognize in their brief, insisting, however, that the Director’s decision “clearly shows that it was based upon the competent and admissible medical testimony in the record, namely, the testimony of Dr. R. L. Palenske.” But, regardless of whether the Director considered these exhibits, their erroneous reception in evidence did not, in and of itself, demonstrate that claimant was not granted “a fair hearing” within the contemplation and meaning of Section 208.100(5). And upon judicial review “the court, as authorized in all nonjury cases by Section 510.310 [now Civil Rule 73.01, V.A.M.R.], will consider all the evidence duly preserved (whether admitted or not), which it finds to be admissible, and decide the case on such evidence.” Ellis, supra, 365 Mo. loc. cit. 624, 285 S.W.2d loc. cit. 641(17).

In presenting the third complaint, claimant’s counsel direct attention to four leading questions by the referee (to no one of which was an objection interposed) and to the referee’s comment, “I believe that is too remote,” with respect to the testimony of a lay witness that, while Grady had been plowing cotton four or five years before the date of hearing, “he had some kind of a spell.” Relying upon Jones v. State Dept. of Public Health & Welfare, Mo.App., 354 S.W.2d 37, counsel contend that, in the aforesaid particulars, the referee “displayed bias and prejudice” against claimant who thereby “was denied a fair hearing and determination.” We are in entire accord with the observations and holding in Jones, supra; but in that case the referee had made statements which manifested his bias against claimant, amounted to “an openly expressed prejudgment of the controversy,” tended to intimidate claimant’s husband (the allegedly incapacitated parent), and had the effect of disparaging and discrediting not only his testimony but also that of all witnesses who testified to his incapacity. [354 S.W.2d loc. cit. 40-41] However, the same vices do not inhere in the four leading questions and the single comment, which counsel for instant claimant deplore, and those questions and comment neither manifest the same purpose nor work the same result as did the referee’s statements in Jones, supra. We are of the considered opinion that claimant was accorded a fair hearing. Davis v. State Dept. of Public Health & Welfare, Mo.App., 274 S.W.2d 615, 616(2); McCoy v. State Dept. of Public Health & Welfare, Mo.App., 271 S.W.2d 788, 790; Bollinger v. State Dept. of Public Health & Welfare, Mo.App., 254 S.W.2d 257, 259(4).

We pass to claimant’s second point, i. e., that the Director’s decision was arbitrary and unreasonable. Otherwise stated, the issue is whether the decision was based upon substantial evidence. Ellis, supra, 365 Mo. loc. cit. 618, 285 S.W.2d loc. cit. 637(2); Howlett v. State Social Security Com’n., 347 Mo. 784, 789, 149 S.W.2d 806, 810; Davis, supra, 274 S.W.2d loc. cit. 617 (3, 6). If it was, it may not be disturbed, even though we might have reached the opposite conclusion upon the same evidence. Collins v. Division of Welfare, 364 Mo. 1032, 1037, 270 S.W.2d 817, 820(4); Dysart v. State Dept. of Public Health & Welfare, Mo.App., 361 S.W.2d 347, 350(1); Morton v. State Social Security Com’n., Mo.App., 205 S.W.2d 272, 274(5).

At the date of hearing, to wit, on February 8, 1962, Grady was thirty-five years of age. His formal education terminated at the sixth grade. “A long time ago” he did “sawmill work and everything — trucking.” In 1952 he entered military service but three months and ten days later was discharged (so he said) for rheumatic heart disease. During the period from the date of his military discharge to the date of hearing, Grady chopped some cotton, plowed a few days, and from October 1960 to May 1961 “fished commercially” on the St. Francis River — a pursuit in which a vocational rehabilitation agency had interested him. Grady testified that he had quit commercial fishing in May 1961 because of his physical condition, although cessation of that “work” curiously coincided with the theft of his boat and liveboxes.

Grady’s categorical denial that he was “able to work and make a living” was predicated on a comprehensive collection of complaints and conditions. He said that even work no heavier than helping his wife (claimant herein) around the house brought on “spells” or “attacks,” when he would “get short of breath” and “my heart would just beat so hard and skip beats I would just have to quit.” When one of these “spells” begins, “I always just have to sit down; if I am near the house, I generally lay (sic) down * * * it will leave me •quicker that way.” His back “has been bothering * * * for I don’t know exactly how long. * * * I just get to hurting so bad I can’t hardly stand it, and I get sore and stay sore in my back all the time.” At another point in his testimony, Grady complained that “I get sore all in my left side and shoulder.” At still another point, he said that “I have to really be careful with my stomach; I have gastric hemorrhages * * An accident in 1942, in which he suffered a fractured right elbow, has left him with “a crippled arm” and fingers (on that hand) which “he doesn’t straighten * * * out very well,” although Grady conceded that this condition does not prevent him from working. When asked by the referee “how much of the time” he could work, Grady thought “thirty per cent, probably”; but he shortly explained that was “an overall average” reflecting the “times I can go out there and work until I do have an attack * * * I just couldn’t work no certain set time.” “I might work an hour or two and have one [an attack], and then I might work a half a day, but I am sure to have one when I work.”

Claimant’s counsel concede that, if Division’s Exhibit 2 (the purported medical report dated August 14, 1961, from Dr. Charles F. Wilson) and Division’s Exhibit 4 (the purported report from the Veterans Administration Hospital at Memphis) had constituted competent evidence, those exhibits would have afforded substantial support for the Director’s findings. But claimant’s counsel insist, opposing counsel recognize, and we agree that Exhibits 2 and 4 were inadmissible upon the record before us. However, counsel for the Department assure us that “the Director did not consider the inadmissible medical reports [Exhibits 2 and 4]” and assert that “the decision rendered by the Director clearly shows that it was based upon the competent and admissible medical testimony in the record, namely, the testimony of Dr. R. L. Palen-ske,” a medical doctor and the only medical witness.

For seven years prior to the date of hearing, Dr. Palenske had practiced at Hornersville in Dunklin County and, during that entire period, claimant had called on the doctor “pretty regular.” Dr. Palenske testified that Grady “has a chronic bronchitis with emphysema” — “recurrent episodes, which are getting more frequent, of a cough and chest pains,” an enlarged heart with “a grade 2 apical murmur” — “I am not quite sure of what kind of a heart condition he has,” and “scoliosis — pain in his back — which is a compensatory difficulty which has arisen from his chest condition.” Grady had no fever when examined on the day before the hearing, but the doctor added that “he [Grady] usually runs about half degree to one degree of temperature.” His pulse rate on the day before the hearing was 104, substantially faster than the normal rate for one of his age. “On any kind of exertion, the [heart] murmur is accentuated and it just speeds up.”

The Department here emphasizes Dr. Palenske’s statement that Grady could do “light work.” In the doctor’s language “he can work at small tasks such as, you know, light work * * * he could sit at a machine perhaps and do all right if there was no dust in the room and the temperature was just right.” But the quoted statement and Dr. Palenske’s further agreement with the referee’s leading “question” that “there would be many jobs he [Grady] could do” must be read and considered in context. Except for his brief try at commercial fishing — a pursuit which Dr. Palenske characterized as “the worst thing he could have done because he * * * got chilled and wet,” Grady had done nothing other than manual labor; and, with only a sixth-grade education and no vocational training or experience, he was equipped and prepared for nothing else. So it was that, when Dr. Palenske agreed with the referee that “there would be many jobs he could do,” the doctor quickly added, “I don’t know of any around here”; and, when asked for his opinion on the determinative question, i. e., whether Grady was “capable of performing gainful employment,” the doctor said: “Not the kind of gainful employment that he would have to do because of his— let me rephrase that — he is not capable of doing hard manual labor. He is not capable of holding a job because of his condition, which constantly recurs, this chest condition, the infection due to the chronic bronchitis, and because of his heart condition, which of course both of them together add up, and they are gradually getting worse all the time.”

The Department here relies upon the limitation in the last sentence of paragraph (2) of Section 208.040: “Benefits may be granted and continued for this reason [i. e., for physical or mental incapacity] only while it is the judgment of the division of welfare that a physical or mental defect, illness or disability exists which prevents the parent from performing any gainful work.” (All emphasis herein is ours.) Substitution of “any gainful work” for “any substantially gainful activity” was one of several changes in Section 208.040 effected by legislative amendment in 1955. Laws of 1955, p. 691. Emphasizing the rule (one of many bearing upon statutory construction) that, in construing an amended statute, the judiciary should proceed on the theory that the General Assembly intended to accomplish something by the amendment [State v. Chadeayne, Mo. (banc), 323 S.W.2d 680, 684(2); St. Charles Bldg. & Loan Ass’n. v. Webb, Mo., 229 S.W.2d 577, 581 (5); State ex rel. Klein v. Hughes, 351 Mo. 651, 656, 173 S.W.2d 877, 880(6)], counsel for the Department argue that, by the amendment under consideration, the General Assembly “recognized the difficulties in administering the public assistance law in determining what constituted ‘any substantially gainful activity’ and restricted payment of benefits to persons who were prevented from performing ‘any gainful work’ ”; and, citing cases involving the construction of other statutes in which the word “any” was not modified by the context and was held to be “all comprehensive” [Wormington v. City of Monett, 356 Mo. 875, 881, 204 S.W.2d 264, 267(2); Dohring v. Kansas City, 228 Mo.App. 519, 523, 71 S.W.2d 170, 172], counsel contend for a strict construction of the above-quoted limitation in Section 208.040.

Undoubtedly it is still true, as it was prior to the 1955 amendment, that “it is the physical ability of the parent to work and not what he actually earns that is the decisive factor” in determining whether a parent is physically incapacitated within the contemplation and meaning of Section 208.040. Ellis, supra, 365 Mo. loc. cit. 618, 285 S.W.2d loc. cit. 637(1). And it may be that, by substitution of “any gainful work” for “any substantially gainful activity,” the General Assembly intended to authorize the Division to examine more critically and to rule more strictly applications for ADC benefits predicated upon the alleged physical or mental incapacity of a parent. Even so, it does not follow that the statutory limitation, as amended, should be accorded a strict, harsh and unyielding construction, contrary to the general rule that relief statutes are to be construed liberally [81 C.J.S., Social Security and Public Welfare, § 3, p. 10] with a view to combating the evil sought to be eradicated and furthering the remedy provided for that purpose. Cf. Galvin v. State Social Security Com’n. of Missouri, Mo.App., 129 S.W.2d 1051, 1053(3).

The primary rule of statutory construction, which underlies all others, is to ascertain and give effect to the legislative intent [State on inf. of Dalton v. Miles Laboratories, 365 Mo. 350, 365, 282 S.W.2d 564, 573(13); McCord v. Missouri Crooked River Backwater Levee Dist. of Ray County, Mo., 295 S.W.2d 42, 45(2); Taney County v. Empire Dist. Elec. Co., Mo., 309 S.W.2d 610, 614]; and there is a plethora of authority to the effect that, in the judicial endeavor to ascertain such intent, one of the important factors for consideration is the purpose or objective of the enactment. E. g., State ex rel. Gerber v. Mayfield, 365 Mo. 255, 259, 281 S.W.2d 295, 297(3); In re Duren, 355 Mo. 1222, 1235, 200 S.W.2d 343, 352(8), 170 A.L.R. 391; Globe-Democrat Pub. Co. v. Industrial Com’n. of Missouri, Mo.App., 301 S.W.2d 846, 852(4); Willis v. American National Life Ins. Co., Mo.App., 287 S.W.2d 98, 104(8); Wellston Fire Protection Dist. of St. Louis County v. State Bank & Trust Co. of Wellston, Mo.App., 282 S.W.2d 171, 174(4). As our Supreme Court, en banc, sagely observed in State ex inf. Kamp ex rel. Rodgers v. Pretended Cons. School Dist. No. 1 of Montgomery County, 359 Mo. 639, 645, 223 S.W.2d 484, 488, where it was “candidly stated that a literal, 'according to the letter,’ application” of the statutory provision there under consideration would have rendered the consolidation of certain school districts illegal and void: “We may not capriciously ignore the plain language of the statute but in determining what the language really means we may consider the entire purpose and policy of the statute and ‘the language in the totality of the enactment’ and construe it in the light of ‘what is below the surface of the words and yet fairly a part of them.’ ” See also State ex rel. Henderson v. Proctor, Mo. (banc), 361 S.W.2d 802, 805(1).

In some instances, “the meaning of the questioned words cannot be determined independent of the particular context in which they are used and the subject matter under discussion.” Union Electric Co. v. Morris, 359 Mo. 564, 569, 222 S.W.2d 767, 770; Household Finance Corp. v. Robertson, Mo. (banc), 364 S.W.2d 595, 602. See also State v. Bern, Mo.App., 322 S.W.2d 175, 177(2). And, “ ‘if a statute is susceptible of more than one construction, it must be given that which will best effect its purpose rather than one which would defeat it, even though such construction is not within the strict literal interpretation of the statute * * *.’ ” Household Finance Corp., supra, 364 S.W.2d loc. cit. 602(6).

We also remain mindful of other rules, namely, that the law favors a statutory construction tending to harmonize with reason, give meaning to the enactment, and avoid an unjust or absurd result [Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 848, 253 S.W.2d 832, 835(3); Owen v. Riffle, Mo., 323 S.W.2d 765, 770; In re H— S — , 236 Mo.App. 1296, 1301, 165 S.W.2d 300, 302(3); Globe-Democrat Pub. Co., supra, 301 S.W.2d loc. cit. 852(5); State v. Bern, supra, 322 S.W.2d loc. cit. 177(4)], and that statutes in pari materia should be construed together and harmonized, insofar as reasonably possible. See cases collated in 26 West’s Missouri Digest, Statutes, Key No. 223.2.

The history of ADC legislation indicates enactment thereof for the primary purpose of preserving family unity, keeping dependent children in their own homes,, and thereby enabling them to be reared in that atmosphere. Merced County v. Dept. of Social Welfare, 148 Cal.App.2d 540, 307 P.2d 46, 47(1); Town of Cohasset v. Town of Scituate, 309 Mass. 402, 34 N.E.2d 699, 703(2); Crowley v. Bressler, 181 Misc. 59, 41 N.Y.S.2d 441, 445(2); 81 C.J.S., Social Security and Public Welfare, § 63, p. 101; id., § 64, loc. cit. 103. But a literal interpretation of the words “any gainful work” in Section 208.040(2) would encompass such situations as the sidewalk vending of newspapers, brooms, pencils or shoestrings, would require a state of near-helplessness-for physical or mental incapacity under that statute [cf. Wiener v. Mutual Life Ins. Co. of New York, 352 Mo. 673, 679, 179 S.W.2d 39, 42(5); Gibson v. Equitable Life Assur. Soc. of the United States, 84 Utah 452, 36 P.2d 105, 109; Cacic v. Slovenska Narodna Podporna Jednota, 102 Mont. 438, 59 P.2d 910, 913] and, in inescapable effect, would severely hamper and hinder, if not altogether preclude and prevent, attainment of the legislative purpose.

Furthermore, a literal interpretation of “any gainful work” in Section 208.040(2) would not harmonize with the language and intendment of Section 208.050 which denies ADC benefits to children whose parents are “able-bodied” or “employable”: “Aid to dependent children benefits shall not be granted or continued with respect to any child * * * (2) Who is living in the home with a parent and step-parent, both of whom are able-bodied', (3) Whose parent with whom he is living, if employable, refuses to accept available employment. The determination of employability and the conditions under which employment shall be required shall be made by the division of welfare by taking into consideration all the facts and circumstances in the individual case. * * * ”

The opinion in Ellis, supra, clearly reflected the judgment of the Division, prior to the 1955 amendment of Section 208.040 (2), as to what then was required to discontinue ADC benefits, to wit, a form “certification” from a medical examiner that “ 'this person does not have a physical or mental disability which renders him incapacitated to work in the usual manner at any occupation for which his age, training, experience, or education would fit him.’ ” [365 Mo. loc. cit. 621, 622, 285 S.W.2d loc. cit. 639, 640] Obviously, the quoted language of that form did not reflect a literal, “according to the letter,” interpretation of the words “any substantially gainful activity” in the then statutory requirement for physical or mental incapacity, namely, “a physical or mental defect, illness or disability * * * which prevents the parent from performing any substantially gainful activity.” Sec. 208.040(2), as amended Laws of 1951, p. 755. We are no more inclined to interpret literally, “according to the letter,” the words “any gainful work” substituted in the 1955 amendment. Laws of 1955, p. 691. In this connection, see particularly Barnes, supra, 320 S.W.2d loc. cit. 90, where, subsequent to the 1955 amendment, the court stated that “the evidence on behalf of plaintiff established, prima facie, that he was physically incapacitated for manual labor — the only character of work he was fitted to do” and that “if plaintiff’s evidence is all of the competent evidence in the case (that is, admissible evidence) then the Director acted arbitrarily in denying the application * * *.”

Certainly, on the admissible evidence in the instant transcript it reasonably could not be said that Grady was “able-bodied” or "employable” [Sec. 208.050] in any fair, equitable or practical sense of either term; and nothing short of a literal, “according to the letter,” interpretation of “any gainful work” — an interpretation which we are unwilling to accord — -reasonably would have permitted the Director’s findings and order on the admissible evidence before him. In this state of the record, the order under review was not supported by competent substantial evidence and thus was arbitrary and unreasonable. Barnes, supra; Ellis, supra.

The judgment of the circuit court affirming the Director’s order is set aside and the cause is remanded to the circuit court with directions to remand the cause to the Director of the Department of Public Health and Welfare for redetermination of the issues.

RUARK, P. J., and HOGAN, J., concur.

On Motion for Rehearing or to Transfer

STONE, Judge.

The burden of the Department’s motion for rehearing or to transfer is (1) that we “weighed the evidence, disregarded the findings made by the Director upon substantial evidence and determined independently which way the evidence preponderates,” thus erroneously reviewing the case under Article V, Section 22, Mo. Const, of 1945, 2 V.A.M.S., and (2) that we have read the words “any gainful work” out of Section 208.040(2) and have held “that a person had to be employable or able-bodied to be denied” ADC benefits.

As to the first complaint: We have been mindful that our review in this category of cases is not under Article V, Section 22, Mo.Const. of 1945 [Ellis v. State Dept. of Public Health & Welfare, 365 Mo. 614, 618-620, 285 S.W.2d 634, 637-638(3)], and we stated in our opinion, precisely as the Department now urges, that: “ * * * [T]he issue is whether the decision was based upon substantial evidence. (Citing cases) If it was, it may not be disturbed * * *.” The Department’s first complaint manifestly stems from apparent misconceptions (a) as to what constitutes substantial evidence and (b) as to whether the testimony of Dr. Palenske supplied the substantial evidence essential to support the Director’s decision.

In the course of offering extended advice, no doubt well-intentioned even though self-serving, as to what an opinion in this character of case should contain, the Department’s counsel admonish : “The court should consider or quote in its decision the evidence that supports the decision and then determine whether the evidence is substantial in the sense that it is admissible and competent without regard to all the opposing or unfavorable evidence submitted.” (All emphasis herein is ours.) But substantiality is not synonymous with and limited to, but implies and requires something more than, mere admissibility and competency. As our Supreme Court, en banc, per Conkling, C. J., said in Collins v. Division of Welfare, 364 Mo. 1032, 1037, 270 S.W.2d 817, 820(6): “ ‘Substantial evidence’ is evidence which, if true, has probative force upon the issues, i. e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced.” To the same effect, see Davis v. State Dept. of Public Health & Welfare, Mo.App., 274 S.W.2d 615, 617(6); Burrows v. County Court of Carter County, Mo.App., 308 S.W.2d 299, 305; Carlisle v. State Dept. of Public Health & Welfare, Mo.App., 341 S.W.2d 617, 624(4); Velghe v. State Dept. of Public Health & Welfare, Mo.App., 362 S.W.2d 747, 750(3).

With assurances that the Director had not considered the inadmissible exhibits, the Department’s brief told us that the Director’s decision “clearly shows that it was based upon the competent and admissible medical testimony in the record, namely, the testimony of Dr. R. L. Palenske.” Thus directed to Dr. Palenske’s testimony as supplying the substantial evidence essential to support the Director’s decision (and indeed no other admissible evidence in the record could have supported it), we carefully considered and painstakingly analyzed the doctor’s testimony. Certain bits or fragments of that testimony (noted in our opinion), if isolated and accepted out of context (as we are urged to take them), might afford support for the Director’s decision. But, where the testimony of a witness is not self-contradictory, and Dr. Palenske’s testimony was not [contrast Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647(6); Banty v. City of Sedalia, Mo.App., 120 S.W.2d 59, 61(1)], it should be considered as a whole.. Dimond v. Terminal R. R. Ass’n. of St. Louis, 346 Mo. 333, 353, 141 S.W.2d 789, 799(12); Haire v. Stagner, Mo.App., 356 S.W.2d 305, 310; Dugan v. Rippee, Mo.App., 278 S.W.2d 812, 816(7); 32 C.J.S., Evidence, § 1031a, loc. cit. 1073. See also Batson v. Ormsbee, Mo.App., 304 S.W.2d 680, 682; Hoffman v. Illinois Terminal R. Co., Mo.App., 274 S.W.2d 591, 593. “For sometimes the meaning of the words or the thought attempted to be conveyed by the witness may be explained and clarified in the words he used or by what he previously [or thereafter] said in relation to the same subject.” Hampton v. Raines, Mo.App., 334 S.W.2d 372, 377(5).

When read as a whole, the clear and unmistakable gist and import of Dr. Palenske’s testimony was that, although Grady could do “light work” under ideal conditions, the doctor knew of nothing in that territorial area which would be within the physical capability of Grady, also limited as he was by only a sixth-grade education and no vocational training or experience; that “on any kind of exertion” his heart murmur was accentuated; that, if Grady undertook “any kind of hard work,” it would make his “chest condition” worse; and that, in short, he was not physically capable of working at hard manual labor, the only “kind of gainful employment” for which he otherwise was fitted. As Dr. Palenske put it, “I am sure maybe he would work 30 minutes, or could, but this hard labor would go ahead and cause a deterioration in his condition quicker, which is gradually getting worse anyway.” Certainly it could not be said that Grady was capable of doing hard work, if he thereby would run a substantial risk of increasing his disability or shortening his life. Wiener v. Mutual Life Ins. Co. of New York, 352 Mo. 673, 680, 179 S.W.2d 39, 43(8); Robinson v. United States, 2 Cir., 87 F.2d 343, 345 (2, 3). We still believe and hold that Dr. Palenske’s testimony did not afford substantial evidence to support the Director’s decision affirming the order removing claimant from the ADC rolls.

As to the second complaint'. Arguing that “the word ‘any’ as used in the statute [Sec. 208.040(2)] is all comprehensive,” the Department contended in its brief (upon which this case was submitted and determined) for a literal, “according to the letter,” interpretation of the words “any gainful work” in the statutory requirement for physical or mental disability, namely, “a physical or mental defect, illness or disability * * * which prevents the parent from performing any gainful work.” Sec. 208.040(2). With respect to this matter of statutory construction [see Webster’s New International Dictionary (2nd Ed.), p. 572, for “the distinction between construction and interpretation * * * not well observed” in ordinary or legal usage], all that we needed to hold for proper disposition of this appeal, and all that we intended to hold in our opinion, was: (1) that nothing short of a literal, “according to the letter,” interpretation of "any gainful work” reasonably would have permitted the Director’s findings and order on the admissible evidence before him, (2) that we were unwilling to accord such literal, “according to the letter,” interpretation to those words, and (3) that, therefore, the order under review was not supported by competent substantial evidence and was arbitrary and unreasonable, thus requiring the remanding of the cause to the Director for redeter-mination of the issues.

In the course of our discussion, we did refer to several recognized rules of statutory construction, among them the principle that statutes in pari materia should be construed together and harmonized, and we did point out that the literal construction of “any gainful work” for which the Department contended certainly would not harmonize with the language and intendment of Section 208.050. But we did not hold (as the Department charges) “that a person had to be employable or able-bodied to be denied ADC benefits,” and we did not undertake to interpret or define either “able-bodied” or “employable” as those terms are used in Section 208.050 but left undefined therein, excepting insofar as the legislative intent with respect to “employable” may be gathered from the second sentence in subsection (3) thereof.

In the suggestions in support of its motion for rehearing or to transfer, the Department now informs us that “ ‘any gainful work’ * * * has not received a literal interpretation as requiring a state of being bedfast or near-helplessness” but that “it has been construed as allowing the Division of Welfare to determine what kind of zvork is ‘gainful’ and encompassing the performance of services zmth reasonable regularity in some employment or self-employment.” Having already considered and ruled the case as it was briefed and presented to us, we eschew gratis dictum concerning the Department’s now-disclosed definition (if such it is intended to be) of “any gainful work.” But perhaps it may not be amiss to indicate our hearty approval of the Department’s present position that “any gainful work” should not receive a literal interpretation and its further suggestion that “each case must be considered on all its own facts.” For us to go further would be inappropriate and might be unwise.

The motion for rehearing or to transfer is overruled.

RUARK, P. J., and HOGAN, J., concur.

      . Except as otherwise specifically stated, all statutory references are to RSMo 1959, V.A.M.S. That portion of Section 208.040, pertinent to determination of the instant case, reads as follows: “Aid to dependent children shall be granted on behalf of a dependent child or children and may be granted to a mother * * * caring for a dependent child or children who: '* * * (2) Has been deprived of parental support or care by reason of ⅞ ⅜ * physical or mental incapacity of a parent ⅜ * ⅜. Benefits may be granted and continued for this reason only while it is the judgment of the division of welfare that a physical or mental defect, illness or disability exists which prevents the parent from, performing any gainful work.”


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Margaret W. BROWN, Plaintiff-Respondent, v. Thomas J. PARKER and John Patrick Brown, Defendants-Appellants.
    Nos. 31316, 31317.
    St. Louis Court of Appeals. Missouri.
    Feb. 18, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 12, 1964.

      Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, Robert E. Keaney, Richard M. Stout, St. Louis, for appellants.
    Gragg, Aubuchon & Walsh, Eugene P. Walsh, St. Louis, for respondent.
   BRADY, Commissioner.

This action for personal injuries resulted in a jury verdict against both defendants in the amount of $8,000.00. Following the trial court’s action in overruling their timely after-trial motions, the defendants brought their separate appeals to this court.

The defendant Parker presents four allegations of prejudicial error. He first contends the trial court prejudicially erred in overruling his objection to certain of plaintiff’s inquiries on voir dire. Secondly, he contends the trial court prejudicially erred in giving Instructions No. 2 and No. 4, which he characterizes as confusing, misleading and repugnant. The third allegation of prejudicial error must be recited in order to understand the point made. It reads: “The Court erred in overruling the motion of defendant Parker for a mistrial when plaintiff, while crying, in answering a question regarding the general condition of her health prior to the accident, stated she had six children to care for at home.” The last allegation of prejudicial error deals with the trial court’s action in refusing to allow counsel to make certain comments during closing argument. The appeal of the defendant Brown is determined by this court’s ruling upon his contention that he was the plaintiff’s unemancipated minor child at the date of the collision and that the trial court should have therefore sustained his motion for a directed verdict offered at the close of all the evidence. The other allegations of prejudicial error advanced by this defendant need not be stated.

It is obvious that, with the possible exception of the second allegation, these allegations of error will not be determined by facts which directly involve the occurrence of this collision. While it is not obvious, a careful examination of the arguments advanced to support the second allegation discloses that the contentions upon which it is based do not require a minute examination of the factual situation. Accordingly, an extended review and statement of the factual situation is unnecessary. All that is required is a very brief and somewhat broad statement of the facts relating to this accident with a more detailed explanation of what took place during the trial.

The collision which gave rise to this action occurred at the intersection of Grand, Easton and Evans in the City of St. Louis. Grand runs in a generally north-south direction, Easton in a generally southeast-northwest direction, Evans runs in a generally southwest-northeast direction and blends into Easton so that both Easton and Evans cross Grand on the same pavement. There are electric signals controlling traffic on all three streets at this intersection. The defendant Parker’s automobile was southeast bound on Easton, while the defendant Brown was north bound on Grand. The collision occurred at about 6:00 p. m. on a hot, dry August day. Parker had entered into Easton at Clara. In obedience to the electric signal controlling traffic traveling in his direction, Parker stopped at the intersection. His evidence was that when the signal turned green, he looked southwardly and saw stopped automobiles on Grand; that he moved approximately eighteen or twenty feet and looked to the north and ascertained there was nothing approaching from that direction; that he then directed his attention straight ahead; and that when he got to the middle of Grand, which is sixty feet wide, he looked to the south again and saw the Brown automobile “right on top of me.” The collision occurred in the middle of Grand. Brown’s evidence was that the light was in his favor as he entered the intersection without stopping and still in his favor when his automobile was in the middle of the intersection. The evidence also was that Parker and Brown could not have had a green signal at the same time.

Prior to voir dire and out of the hearing of the jury, plaintiff’s counsel made the usual inquiry of counsel for both defendants regarding the interest any insurance company might have in the defense of this case. Parker’s counsel gave an answer •showing the interest of Mid-Continent Casualty Company. Brown’s counsel stated that under a reservation as to coverage he was defending for the Aetna Insurance Company. Plaintiff’s counsel stated that he wanted to ask one general question regarding the possible employment of any member of the panel or their financial interest in these companies. Over the objection of both defendants the trial court granted permission to do so provided such a question was placed in the general questions asked of the panel in such a manner as to avoid undue attention being drawn to it. On voir dire the plaintiff’s counsel introduced himself, opposing counsel, and the parties and inquired if any of the panel knew any of those persons. He asked if any of the members of the panel knew the plaintiff’s doctor. He then asked the panel: “Do any members of this panel have any interest in — or are any of the members of the panel employed by, or have any financial interest in the Mid-Continent Casualty Company, or the Aetna Insurance Company?” Counsel proceeded to ask another question of the panel and then, immediately before asking the panel if any of them had any feeling toward one party or the other in a lawsuit arising from the position of the parties as plaintiff or defendant, counsel stated: “At any rate, I have asked you whther (sic) you know any of the counsel, or any parties to the case, and you stated you did not, or if you know anything about the case by reason of hearing it discussed, or for any reason — that is not unusual, sometimes it happens.”

During the direct examination of the plaintiff, her counsel made inquiry as to a bursitis condition, and the plaintiff answered that she had had such a condition “ * * * but that didn’t have anything to do with this accident.” She was then asked, “Prior to this accident, Mrs. Brown, what was the general condition of your health?” Her answer was, “It was fairly good; I did all my own work; I had six children at home to take care of. * * * ” At this point a general objection was made by Parker’s counsel. Out of the hearing of the jury and prior to the court’s ruling upon the objection, counsel also requested a mistrial. The following colloquy between court and counsel then took place: “MR. STOUT (counsel for Brown): At this time, plaintiff is dabbing at her eyes with her handkerchief, and she has been for twenty minutes sniffling in the presence of the jury, and she has been wiping her eyes —wiping the tears, and this is very prejudicial to our case, and I ask for a mistrial on that ground, also. MR. WALSH (plaintiff’s counsel) : I asked for a recess before, and the Court indicated it was all right to proceed, and neither counsel objected to what was going on then. THE COURT: Well, she was wiping her eyes with a handkerchief but I don’t believe the jury is paying too much attention to that. You did not object to that before, and we went on all right. The objection will be overruled.” Returning to the questioning of his client and in the hearing of the jury, counsel asked the following question and received the following answer: “Q (By Mr. Walsh) Directing your attention back to my question, I don’t want you at this point to tell me what you were able to do or not able to do, but, generally, with respect to your health: What was the general condition of your health before this accident? A It was fairly good.”

There is no contention that the evidence is insufficient to support the giving of Instructions No. 2 and No. 4. The point raised requires a brief statement of the submission made in those instructions. Instruction No. 2 directs a finding for the plaintiff and against the defendant Parker, if the jury finds that Parker ran the red light, was negligent in so doing, and that negligence either directly caused or directly combined and concurred with defendant Brown’s negligence as submitted in Instruction No. 3 to cause plaintiff’s injury. Instruction No. 4 directs a finding for the plaintiff and against the defendant Brown if the jury finds that Brown ran the red light, was negligent in so doing, and that negligence either directly caused or directly. combined and concurred with defendant Parker’s negligence as submitted in Instruction No. 1 to cause plaintiff’s injury. The submissions contained in Instructions No. 1 and No. 3 will be set out later herein.

At the very beginning of his argument plaintiff’s counsel stated that he wanted to make clear to the jury why the defendant Brown was sued as a defendant. There was an objection, and during the colloquy that followed plaintiff’s counsel stated that he wanted to tell the jury why Brown was sued and intended to say that “ * * * after taking the deposition of Parker, Parker gave evidence against Brown, that Brown ran the red light, and certainly plaintiff is entitled to bring that to the attention of the jury.” The court sustained the obj ection. Immediately following the court’s ruling and upon returning to his argument before the jury, counsel for plaintiff stated: “At any rate, John Patrick Brown is a defendant in this case; there was testimony given on deposition by Parker, which was taken before Brown was sued, and that evidence was given on the part of Parker, that Brown ran the red light, and that is why Brown is in this case.” There was an objection on the ground this violated the previous ruling of the court and a request that these remarks be stricken and the jury instructed to disregard them. The trial court overruled this objection. No error is assigned as to this action, and it is included herein only to place what followed in proper perspective. Counsel for the defendant Parker made the first argument for the defendants. At the opening of his remarks he stated that counsel for Brown “ * * * has made a comment on more than one occasion to the effect that Brown was not a defendant at the time Parker’s deposition was taken, that in the beginning Mrs. Brown only sued Mr. Parker. I ask you, why would a mother sue her son?” An objection was sustained, the court stating, out of the hearing of the jury, that it was his opinion that the purpose of such an argument was to try " * * * to convey there is insurance in the case.” Parker’s counsel did not proceed further in this vein.

The evidence bearing upon the issue with respect to the defendant Brown is that the plaintiff is the mother of the defendant Brown and was a passenger in the automobile he was driving when the collision took place. Brown was born May 20, 1940, and at the date of the collision on August 7, 1960, was twenty years old. Plaintiff first filed her action against the defendant Parker alone and joined Brown by amendment on January 31, 1961. There is no indication as to when service was had on Brown, but his separate answer was not filed until June 15, 1961. He was then twenty-one years of age and was almost twenty-two when trial began on March 5, 1962. During voir dire-counsel for plaintiff introduced the parties, preparatory to inquiring whether any of the panel knew them. He referred to the defendant Brown in this manner: “The other defendant is John Patrick Brown, who is the-son of the plaintiff, Mrs. Margaret Brown, and he lives at 4220-a Natural Bridge, also.”' Later during the examination of the panel, counsel for plaintiff asked, “Now, would’ there be any feeling on the part of any member of this panel because, as I indicated to-you, that this lawsuit is brought by Mrs. Brown against Mr.Parker, and her son, John-Patrick Brown — he is her son; would there be any feeling on the part of any member of this panel, that that may be wrong, to-bring a lawsuit against her son — * * An objection was made and sustained, and the matter was not pursued further. In answer to the question as to who was driving the automobile she was riding in, the plaintiff answered, “My son, Patrick.” At the outset of his cross-examination of the plaintiff, Brown’s counsel began to develop the facts as to that defendant’s emancipation. He asked plaintiff how old Patrick was, whether he was twenty-one or over on the date of the collision, whether he was then living at home, and if he was then working. There was no objection to any of these questions. Counsel then inquired whether the defendant Brown brought his pay check home, and a general objection was interposed. The trial court directed the inquiry as to emancipation be conducted out of the hearing of the jury. Counsel for the defendant Brown stated that the evidence that would be given by the plaintiff would constitute an offer of proof by him as to the issue of emancipation. This evidence consisted entirely of answers given by the plaintiff in response to examination by counsel. During that questioning the plaintiff testified that her son lived at home when this accident occurred; that she was the head of the household; that he paid her $10.00 a week and took care of his own cleaning and the cost and upkeep of his automobile; and that she claimed the right as his mother because he was a minor to control his movements and upbringing. The plaintiff also testified that her son was steadily employed and had been working since March, 1958; that, except for the $10.00, she had no control over his pay check; and that she had no control over his working. Her further testimony was that on occasion she asked her son for other money, and he gave it to her; that she used this other money “ * * for whatever was necessary in the household * * * ”; and that she felt it was good training to let the defendant learn how to handle the money he worked for. In response to a question from the court the plaintiff testified that she treated the defendant just like the rest of the children all of whom, with one exception, were minors and younger than he was. Nothing further appears concerning her treatment of any of the other children. The trial court was referred to the case of Wells v. Wells, Mo.App., 48 S.W.2d 109, and stated: “ * * * j don’t believe I have the authority to overrule the Kansas City Court of Appeals. I will sustain the objection; this testimony will not be admissible, then. * * * ” Accordingly, when the trial proceeded before the jury, no further questions bearing upon the defendant’s emancipation were asked of the plaintiff, and none of the foregoing evidence was ever heard by the jury. The only evidence concerning this issue that is properly before us came into the case when the defendant Brown was called to testify during the plaintiff’s case in chief. He was cross-examined by his own counsel. After ascertaining the date of his birth, Brown’s counsel inquired whether his mother had ever told him that she had parted with the right of control over him. An objection was made and overruled by the trial court. The question was asked again in this fashion: “Q. (By Mr. Stout) Did your mother ever tell you that she had parted with her right of parental control over you or did she at times exercise a little parental control over you, at the time of this accident?” The defendant answered that his mother had exercised control over him. He was then asked if at the time of the collision he made available to his mother all of his earnings. At this point an objection was interposed, and the trial court again overruled it. The answer given was, “Yes, sir, I did.”

The defendant Brown’s motion for a directed verdict offered at the close of all the evidence was based upon the ground that the plaintiff’s own testimony shows the defendant to be an unemancipated minor, “ * * * and the law will not permit a parent to recover against an unemancipated minor for negligence of such minor child of such parent.”

At the request of the defendant Brown, the trial court instructed the jury that if they found the plaintiff to be the mother of the defendant Brown and further found that on the date of the collision Brown was under twenty-one years of age; that he resided in the plaintiff’s home; that the plaintiff had not surrendered “all rights of parental control” over him prior to the date of the collision; that the plaintiff claimed the right to receive and did receive “a portion of the earnings” of the defendant Brown; and that the plaintiff “claimed the right to direct and did in fact direct in a parental manner certain of the activities of said defendant,” then Brown was not emancipated, and plaintiff was not entitled to maintain an action against him, and their verdict should be in his favor.

The defendant Parker first contends that the trial court committed prejudicial error when it overruled his objection and permitted plaintiff’s counsel to inquire as to the interest, if any, members of the panel had in the insurance companies named. In support of this contention the appellant argues that the panel must first be asked “whether any prospective juror knew of the accident or the parties involved.” He contends that only in the event the answer to that question is in the affirmative is there any basis to authorize the subsequent inquiry as to their employment of or interest in the insurance companies involved. The defendant Parker’s position on this matter is set forth in his brief in the following language: “Unless it is first determined that a prospective juror knows about the facts he may be asked to try, it would make no difference if he were the president of the insurance company interested in the defense of the lawsuit. Without such a determination first being made, and an affirmative answer being obtained, the asking of the insurance question is wholly unjustified, injects a poison for which there is no antidote and is not asked in good faith.”

We are not cited to any Missouri authority to support this contention. Neither are we aware of the existence of any such authority. The statement set out above from the defendant Parker’s brief assumes that an employee or officer of an insurance company would know and immediately recognize the names of the parties involved or the facts concerning every case in which that company might be involved. It would not protect against the interest of any such employee or officer who honestly states he did not know of such a case and then, after the trial has progressed, discovers his company’s interest.

Plaintiff’s counsel properly made his preliminary inquiry out of the hearing of the jury, Murphy v. Graves, Mo., 294 S.W.2d 29, and certainly the one question put to the panel did not unduly emphasize the matter. Absent an abuse of discretion by the trial court, this court is not permitted to intervene in such matters. Gooch v. Avsco, Incorporated, Mo., 340 S.W.2d 665; Johnston v. Owings, Mo.App., 254 S.W.2d 993. We find no abuse of discretion presented by this case.

The defendant Parker contends that Instructions No. 2 and No. 4 are inconsistent and repugnant. The basis for such a contention is that the undisputed evidence was that only one of the defendants could have disobeyed the traffic signal and to submit these instructions is to allow the jury to find that both disobeyed it. We have stated the submission contained in Instructions No. 2 and No. 4 earlier herein. However, it is axiomatic that all the instructions are to be read together. Moreover, each of these instructions specifically refers to another instruction. Instruction No. 3 directed a verdict for the plaintiff and against the defendant Brown if they found that Brown failed to keep a proper lookout, was negligent in so failing, and that negligence either directly caused or directly combined and concurred with Parker’s negligence in running the stop sign as submitted by Instruction No. 2 to cause plaintiff’s injury. Instruction No. 1 directed a verdict for the plaintiff and against the defendant Parker if they found that Parker failed to keep a proper lookout, was negligent in so failing, and that negligence either directly caused or directly combined and concurred with Brown’s negligence in running the red light as submitted by Instruction No. 4 to cause plaintiff’s injury. It is obvious that the effect of these four instructions was to allow the jury to find that either Brown or Parker ran the stop sign and also find that the one who was not negligent in that regard was negligent in failing to keep a proper lookout. Since the jury found against both defendants, it is obvious that they found one defendant negligent in running the stop sign, found the other defendant negligent in failing to keep a proper lookout, and found that these negligent acts combined and concurred to cause plaintiff’s injury. There is no inconsistency, contradiction or repugnancy in such a submission or finding.

The general rule is that evidence of family status or the number of people in the family unit is inadmissible. Donze v. Swofford, Mo.App., 368 S.W.2d 917, l. c. 921. The basis for the rule is that such evidence is ordinarily only introduced for the purpose of appealing to the sympathy of the jury, Daniels v. Banning, Mo., 329 S.W.2d 647, l. c. 653, and that a fair trial of the issues cannot be had if irrelevant evidence, calculated to appeal to the sympathy of the jury, is admitted. Donze v. Swofford, supra. A necessary corollary to the rule is the exception that such evidence is admissible where it is relevant or pertinent to any issue raised in the case. Bush v. Anderson, Mo.App., 360 S.W.2d 251; Kingsley v. Kansas City, 166 Mo.App. 544, 148 S.W. 170, l. c. 171. In the instant case evidence the plaintiff had six children did not go to prove or disprove any issue. This is not a case where that exception to the general rule prohibiting such evidence should apply.

It should also be noted that this evidence was not elicited by plaintiff but was contained within a response to a proper question. The answer was given before the objection was made. An objection to a question which is not made until after the answer has been given comes too late and will not be considered on appeal. Minks v. Smith, Mo.App., 367 S.W.2d 6, l. c. 8. Where there was no opportunity to object as where incompetent testimony is given in answer to a question which does not necessarily or naturally call for it, an objection thereafter made to such testimony is in time. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; Minks v. Smith, supra. In the instant case the objection was not untimely, and since the evidence did not go to prove or disprove any issue, it should have been sustained. (However, see Daniels v. Banning, supra.) This fact is of no assistance in reaching the decision in the instant case for the reason that the defendant does not assign as error the action of the trial court in overruling his objection. At the beginning of this opinion we have set out the exact allegation of error raised by the defendant Parker to illustrate that the point he raises goes entirely and solely to the trial court’s action in denying a mistrial.

It has been held that where improper evidence comes into the case through a voluntary statement of a witness, a mistrial is not a matter of right but is a question calling for the exercise of a sound discretion by the trial court, and in absence of an abuse of that discretion we cannot interfere. Plannett v. McFall, Mo.App., 284 S.W. 850. This is also the rule where the objectionable evidence is contained within counsel’s opening statement, Golian v. Stanley, Mo., 334 S.W.2d 88 [1-3]. Certainly this should be true where the improper evidence comes into the case in response to a proper question. We are therefore to decide whether the trial court’s action in denying defendant Parker’s motion for mistrial constitutes such an abuse of his discretion as to warrant reversal of this judgment.

In Daniels v. Banning, supra, the basis-for the rule is stated to be that such evidence is ordinarily introduced only for the purpose of appealing to the sympathy of the jury. That being so, it is difficult to see how that sympathy can be held to go only to the matter of damages and not also go to the question of liability influencing the jury’s decision on that issue also. Nevertheless, in the Daniels case where it was held that a direct inquiry as to whether or not the plaintiff had children and an answer that he had two children, properly objected to, did not affect the merits of the action so as to require reversal, the court relied upon the fact that it had ruled against the defendant’s contention the verdict was excessive. We note that in the instant case there is no contention of excessiveness. The transcript shows that following the overruling of this objection the question that had elicited this improper evidence was again asked, and a proper answer given. The matter of the plaintiff’s six children was not given any further attention or emphasis during the trial. Under these circumstances we are of the opinion that the trial court did not abuse its discretion in denying defendant Parker’s motion for mistrial. Golian v. Stanley, supra.

It should first be noted that the defendant Parker’s last assignment of error does not contain any allegation going to the trial court’s action in overruling an objection to and denying a request to instruct the jury to disregard the statements made by plaintiff’s counsel immediately following the sustaining of an objection to that very statement. In this assignment of error the defendant Parker contends that he was improperly prevented from arguing that the plaintiff had joined the defendant Brown after learning that Brown was solely responsible for the collision. The defendant Parker’s statement of this assignment of error begs the question. We are not to be understood as holding that Parker could not argue that Brown was solely responsible for the collision and plaintiff’s injuries. Neither do we hold that he could not argue that this was the reason plaintiff joined Brown in the action. We do hold that the manner in which the defendant Parker attempted to make this argument was certainly subject to the inference the trial court stated it was afraid the jury would draw from it, i. e., because Brown had insurance. The materiality of such an argument to the issue of the negligence to either or both defendants may be important in a practical sense, but it is immaterial legally speaking. This is for the reason that our courts have always insisted that the question of insurance is immaterial to the issue of negligence.

It requires no citation to substantiate the statement that the latitude allowed counsel upon closing argument is largely a matter for the exercise of the trial court’s sound discretion. In the instant case the risk attendant upon emphasizing the matter of insurance leads us to the conclusion that the trial court did not abuse its discretion.

The defendant Brown contends that the-trial court erred in not directing a verdict, in his favor on the ground that he was the-plaintiff’s unemancipated minor child on the-date of the collision. The plaintiff’s first answer to this contention is that the date of the alleged negligent act is not the pertinent time to determine whether the plaintiff can maintain her action. He urges that question should be determined as of the date Brown’s answer was filed or the date trial began.

The rule in this state is that an un-emancipated minor child cannot sue his parent for an unintentional tort, Wurth v. Wurth, Mo., 322 S.W.2d 745. Of course,, the same rule would apply to the situation: presented by the instant case wherein the parent is the plaintiff and the unemanci-pated child is the defendant. In either case the basis for the rule is the same and has been-stated to be a procedural disability to sue based upon public policy which refuses to allow the family relationship to be disturbed by such actions. Brennecke v. Kilpatrick, Mo., 336 S.W.2d 68, l. c. 73. In the Brennecke case the court quoted with approval the following statement from Prosser, Law of Torts, (2nd Ed.) § 101, pp. 676-677, “ * * * ‘The courts which deny the action have relied heavily on the analogy of husband and wife, which seems quite inapplicable because of the difference in the common law concept of the relations, and the absence of statutes to be construed. In addition, they have invented much the same variety of unconvincing reasons as in the case of the marital relation. The danger of “fraud” has been stressed, although it is difficult to see why it is any greater, as-between the parties themselves, than in any other tort action involving an infant; and likewise the possibility that the defendant might inherit the amount recovered in case of the plaintiff’s death, or that the family exchequer might be depleted at the expense of other children — neither of which reasons seems to outweigh the desirability of compensating the injured one for his damage. * * *'"

A brief examination of those actions in which one spouse has been allowed to recover for the negligent act of the other will illustrate they afford little assistance to a correct determination of the instant case. This for the reason that in one type of such action the date of the negligent act becomes all important, while in another it is the date the action was filed that has led the court to the result reached. For example, in Berry v. Harmon, Mo., 329 S.W.2d 784, it was held that an action could be maintained by a wife against her husband for injuries she received prior to the marriage and caused by the husband’s negligence. See also Hamilton v. Fulkerson, Mo., 285 S.W.2d 642. In the Hamilton case the court at l. c. 647 of 285 S.W.2d said, “It is not apparent to us that the maintenance of an action by one spouse against the other for an antenup-tial personal tort would disrupt domestic tranquillity any more than do permitted actions between spouses based on wrongful .acts affecting their separate property. * * * » it is apparent that in this type of .action the court relied upon the date of the accident. If the parties were not then married, one of them could maintain the action ■even though they later became married.

An example of those cases that emphasize a different date is Ennis v. Truhitte, Mo., 306 S.W.2d 549, l. c. 550, where it was held that “ * * * In this case, the husband being dead and the action having been instituted against his administrator, the reasons of policy upon which the rule is based, the fact of their being husband and wife, have vanished (citing authorities). ⅛ * * ” It is obvious that in this type of •case the court fixed its attention upon the •date of suit, and since the reason for the rule of immunity had vanished as of that date, allowed the action.

There are several arguments inherent in plaintiff’s insistence that the date the answer was filed or the date of trial is the proper time to determine whether she can maintain her action. First of these is that until the trial is concluded and a verdict returned against the defendant Brown, he has incurred no legal obligation. The argument is that we should not assume that Brown will be held liable for plaintiff’s injuries and that it is the determination of liability resting upon a judgment and not the mere possibility of liability arising from the occurrence of a collision that will disturb the family relationship. We cannot agree. If the basis for the rule is sound, the pendency of the action will disturb the family relationship. Moreover, if as here there is a nineteen-months’ wait until the case is tried, the opportunities for fraud and collusion are much increased. It is true that, in Hamilton v. Fulkerson, supra, the court held that fraudulent and trivial claims were no more likely to be present in that situation than in any litigation and that, even if present, the court and jury were competent to deal with them. Yet no one can read this transcript and conclude the defendant Brown had reached the almost superhuman plane of emotional control so as not to want his mother to recover for her injuries even if he would be held liable along with another defendant. While the jury and the court must be presumed to have cast aside the fact that Brown had insurance, Brown was surely cognizant of it as he heard his mother’s injuries detailed from the witness stand. We think the considerations of public policy upon which the rule prohibiting such actions is based come into play and would exist to disturb the family relationship long before the judgment is rendered.

Also inherent in the plaintiff’s contention is the argument that his position is a logical extension of the result reached in Ennis v. Truhitte, supra, and Brennecke v. Kilpatrick, supra. In the Brennecke case it was held that the plaintiff’s cause of action arose when the alleged negligent inflicted injury occurred. In that case it was stated that the unemancipated minor labored under a procedural disability which prevented the maintenance of the action and that this procedural disability disappeared upon the death of the parent. The plaintiff’s argument is that in the instant case the parent labored under a procedural disability from the date of the accident and that this procedural disability disappeared upon Brown’s reaching the age of twenty-one prior to trial. Thereafter, although he might voluntarily submit to the plaintiff’s direction and control, he need not do so. Accordingly, the argument proceeds, the basis for the rule prohibiting such actions, the maintenance of the family relationship of parent and child, has vanished and the rule should not apply.

However logical such an argument may he, the same considerations of public policy prevent our adopting it. In the first place the effect of such a ruling would be to allow a parent to sue an unemancipated minor child providing he could keep the case alive until after the child reaches legal age. Such a state of events would clearly violate the sound considerations upon which the rule is based. The family relationship would be disturbed during the time the parent waited for the child to become of age. If the rule is not sound, it should be abolished, but so long as it is in force, the rule should not be avoided by such a subterfuge.

In the instant case we are not required to choose between the date of the negligent act, Berry v. Harmon, supra; Hamilton v. Fulkerson, supra, as contrasted to the date relied upon in Ennis v. Truhitte, supra, i. e., the date suit was filed. So far as this record is concerned the defendant Brown was an unemancipated minor at either time. It suffices in this case to state that the procedural disability under which the plaintiff labors, Brennecke v. Kilpatrick, supra, is not removed by the fact that at the date the answer was filed and at the date of trial the defendant had reached his majority. That decision is clearly indicated by Brennecke v. Kilpatrick, supra, where it was held that a cause of action existed from the occurrence of the alleged negligent act. It is also compelled by the decision in Taylor v. Taylor, 360 Mo. 994, 232 S.W.2d 382, l. c. 385, where it was stated that, “ * * * The rule is generally not applicable where the child is of age at the time the cause of action arose (citing cases).” Later on that same page the court held that the plaintiff could maintain her action “ * * ⅜ against her son who was of legal age when the alleged tort was committed. * * * Regardless of what has been held in analogous situations involving actions between a husband and wife for negligent injury, considerations of public policy prevent such action from being maintained between parent and child where the child was an un-emancipated minor at the date of the occurrence of the alleged negligent act. Wurth v. Wurth, supra.

The plaintiff’s second reason why the rule prohibiting such actions should not be applied in the instant case is the contention that the defendant Brown waives the defense that he was an unemancipated minor child by failing to raise that defense by motion within the time allowed for the filing of such motions or by including it as a specific averment within his answer. In actions brought by parents to recover for the services of their minor child or children, it has been held there is a presumption that the right to bring the action is in the parents, in the absence of a showing of emancipation or other matter rebutting the presumptive right. It follows that in those cases emancipation and other such matters going to defeat the presumption are held to be matters of defense and must be pleaded. Robison v. Floesch Const. Co., Mo.App., 242 S.W. 421; Beebe v. Kansas City, 223 Mo.App. 642, 17 S.W.2d 608, l. c. 612; Marx v. Parks, Mo.App., 39 S.W.2d 570, l. c. 572. Thus, in Hendon v. Kurn, 351 Mo. 980, 174 S.W.2d 806, l. c. 809 [2-7] it was held that by filing a general denial defendant waived the plaintiff’s failure to prove she was the personal representative of her deceased husband. The plaintiff urges that these cases are authority for its position and also relies upon Darr v. Darr, Mo.App., 287 S.W.2d 118. In that case it was held that failure to include in a timely motion or in the answer a specific averment challenging plaintiffs capacity to sue in her own name waived any such objection, so that the defendant’s motion to dismiss the action on the ground that the plaintiff had been judged insane and her suit could be prosecuted only by a duly appointed guardian or next friend was properly overruled. In reaching this result the court in Darr cited Sections 509.140, 509.290, and 509.400, RSMo 1949 (now 1959), V.A.M.S.

The defense which the defendant seeks to raise in this case is not one of “infancy.” This is true, although, as held herein, it is essential that the one asserting the defense of being an unemancipated minor child be a minor at the date of the occurrence of the negligent act giving rise to the cause of action. We note that this defense is not one specifically set forth in § 509.290, supra, and therefore required to be raised by motion. Neither do we think it to be properly encompassed within the words “and other matters” as those words appear at the beginning of that section; viz., “The following objections and other matters may be raised by motion * * This for the reason that the rule is that the one claiming emancipation bears the burden of proof as to that issue. Wurth v. Wurth, supra. In the instant case the plaintiff is the one who must bear the burden. Neither do we conceive of the defense that one is an unemancipated minor child to be of the nature covered by § 509.140, supra. Such a defense does not deal with the “legal existence” of the defendant. Neither does it deal with his “capacity” to be sued nor with the authority of a party to be sued in a representative capacity. Those are the matters specifically referred to in that section of our statutes. The defense of being an unemancipated minor child of the person who seeks to maintain the action is in fact a legal defense to plaintiff’s claim of liability. As such § 509.-400, supra, specifically provides it is not waived by failure to assert it in the answer.

It follows that as to the defendant Brown the judgment entered in this case should be reversed and the cause remanded to the trial court with directions to enter its judgment in favor of that defendant. The judgment as to the defendant Parker should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is. adopted as the opinion of this court. The judgment is reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the defendant Brown. The judgment as to defendant Parker is affirmed.

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


author: FRANK W. HAYES, Special Judge.

text:
    The HANOVER INSURANCE COMPANY, a Corporation, (Plaintiff) Appellant, v. George F. ABCHAL, Jr., and Sylvia Broeckelmann, (Defendants) Respondents.
    No. 31506.
    St. Louis Court of Appeals. Missouri.
    Feb. 18, 1964.

      Evans & Dixon, John C. Shepherd and Paul V. Gilbert, St. Louis, for appellant.
    James F. Koester, St. Louis, for respondent Sylvia Broeckelmann.
   FRANK W. HAYES, Special Judge.

This is an action for a declaratory judgment filed by the Hanover Insurance Company, a Corporation, against the respondents Sylvia Broeckelmann and George F. Abchal, Jr. The controversy arises out of the question of whether its automobile policy of liability insurance, No. ACF 41031, issued to one John E. Warden, covering a 1956 Mercedes Benz automobile, No. 300SL, M#5500784, afforded coverage to the respondent, George F. Abchal, Jr., while driving said automobile on a social date with respondent Sylvia Broeckelmann who sustained personal injuries resulting from an accident while they were so engaged.

On February 15, 1959, respondent Sylvia Broeckelmann filed a lawsuit, No. 229,720, in the Circuit Court of the County of St. Louis, Missouri, against respondent George F. Abchal, Jr., for damages. On October 2, 1959, appellant Hanover Insurance Company filed its petition for declaratory judgment against respondents George F. Abchal, Jr., and Sylvia Broeckelmann in the same court, being cause No. 231,638. Later, respondent Broeckelmann filed her petition in the same court against appellant Hanover Insurance Company, et al., for a declaratory judgment, being cause No. 239,935. These two suits were consolidated on November 3, 1961, on the motion of respondent Broeckelmann. On January 23, 1963, respondent Broeckelmann obtained judgment in Cause No. 229,720 against respondent George F. Abchal, Jr., in the sum of $4500, which amount she seeks to collect from the appellant, Hanover Insurance Company, a Corporation, on the theory that respondent Abchal was an additional insured under the policy issued by said company to John E. Warden. The lower court entered its judgment in favor of respondent Broeckel-mann declaring that respondent George F. Abchal, Jr., was an additional insured under said policy and entitled to its protection. The appellant brings this appeal.

The pertinent provisions of said policy involved here are as follows:

Part I Liability, Persons Insured.
‘‘The following are insured under Part I: (a) With respect to the owned automobile * * * (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured.”

It was admitted by stipulation that respondent Abchal, Jr., was not a resident of St. Louis County, Missouri, at the time of the trial and that he and respondent Broeckelmann were out on a social call and not on any business for Spooner Motor Company at the time of the accident aforesaid. Respondent Abchal was not present and did not testify at the trial. His deposition had been previously taken but was not admitted in evidence because it was not signed by him. There were only two witnesses who testified. They were John E. Warden, the owner of the automobile which was insured by appellant, and the only witness testifying who knew the terms upon which said automobile was delivered to respondent Abchal, Jr., and Robert G. Spooner, President of Spooner Motor Company, who knew nothing of the understanding between Warden and respondent Abchal, Jr., and whose testimony related chiefly to events occurring after the delivery of said automobile by Warden to respondent Abchal and as to how he ran his business. The question therefore is, did the respondents sustain their burden of proof and prove that respondent Abchal, Jr., on the date of the accident, was using said automobile with the express or implied permission of the insured, John E. Warden ?

Witness Warden testified that he was fifty-eight years old and lived at 8000 South Drive, Richmond Heights, Missouri. He was self-employed in the transportation business. Between December, 1958, and February, 1959, he was the owner of a 1956-Benz automobile which he turned over to Spooner Motors for sale. The respondent Abchal had informed him that he was sales manager for Spooner Motors. Warden was going to Panama on his vacation on January 1, 1959. He had delivered the car to Continental Motors to install a new gear box and had instructed them, after the repairs were made, to deliver the automobile to Spooner Motors for sale. He had previously talked with respondent Abchal, who said he was sales manager for Spooner Motors, and it was agreed that said automobile would be turned over to Spooner Motors for sale at the price of $6500. He had previously placed a Corvette with Spooner for sale, but it was stolen before sale. He stated that he had talked to Mr. Spooner as to whether his insurance would cover the Mercedes Benz but Spooner denied the conversation. As Warden directed, the Mercedes Benz was delivered to respondent Abchal, Jr. Warden stated that he never gave respondent Abchal permission to use the Mercedes Benz for his own personal use. After the accident, the Mercedes Benz was again placed with Spooner for sale but soon picked up because Spooner was having financial difficulties.

On cross-examination, witness Warden testified that he, his son and respondent Abchal were on friendly terms. Respondent Abchal and his son went out together socially and respondent Abchal was a frequent visitor in his home. Warden’s dealing with Spooner Motors about the sale of the car was with respondent Abchál, the general sales manager, except as to conversation he had with Mr. Spooner about the insurance. Nothing was said to Spooner about him picking up the car. Warden told Continental Motors, when the car was ready, to call respondent Abchal, Jr., the general manager of Spooner Motors. Continental Motors had the car keys and he arranged with respondent Abchal to pick up the car and did not restrict his use of it. He was not aware that salesmen used cars left for sale on their own personal business. He had since become aware of such facts and if such was normal procedure, it was agreeable with him. Respondent Abchal, Jr., had never used the Mercedes Benz or any other automobile belonging to him with his express or implied consent. He didn’t know whether his son ever let him drive the car or not. The son is now deceased. Continental Motors was instructed to remove the license plates from the Mercedes Benz. Whether it was done or not, he did not know. Warden made a claim for collision loss against the appellant under the policy in question and he paid the $50.00 deductible which was not refunded. If it was the policy of Spooner Motors to let their salesmen use cars for their own personal business, he had no objection to their policy, but he would not have OK’d it. He did not tell respondent Abchal he could not use said automobile personally.

On redirect, Warden testified that he did not know what the normal operating procedures of Spooner Motors were and that the only thing he was interested in was in selling his car.

Witness Robert G. Spooner testified that he operated the Spooner Motor Company and that during 1959 the respondent Abchal was in his employ as a salesman. He was friend of John Warden and his son and respondent Abchal, Jr., and had been out socially with them. He had no conversation with Warden about insurance on the Mercedes Benz but did have about Warden’s Corvette. Spooner knew nothing about respondent Abchal taking possession of Warden’s Mercedes Benz. Respondent Abchal, Jr., picked up said automobile fiom the Continental Motor Company and he saw him operating the car. Respondent Abchal, Jr., tried to finance said automobile. Spooner had nothing to do with taking possession of said automobile and it was not for sale by Spooner Motor Company. All consignments had to be approved by Spooner. After the accident, the Mercedes Benz was taken by him on consignment and displayed and nobody could use it for their own personal use. Warden did not give him the title before he left nor did he ever make any claim against Spooner Motors for damages.

On cross-examination, Spooner testified that no one drove the car except him after the accident and that it was not normal operating procedure to allow salesmen to use consigned cars for their personal use and that he would not allow it.

There is no question that the permission provided for in the omnibus clause can be either express or implied from the conduct of those in position to give it. But as a general rule the person claiming such permission must prove it, and no implied permission can arise merely because someone obtained possession of the property and used it without the knowledge of the named insured. Varble v. Stanley, Mo.App., 306 S.W.2d 662; McKee v. Travelers Insurance Company, Mo.App., 315 S.W.2d 852. Whether permission he expressly granted or impliedly conferred, it must originate in the language or conduct of the named insured or someone having authority to bind him in that respect. Hooper v. Maryland Casualty Company, 233 N.C. 154, 63 S.E.2d 128. Usually, an implied permission arises from a course of conduct of the parties over a period of time prior to the use in question. Alabama Farm Bureau Mutual Casualty Insurance Company v. Robinson, 269 Ala. 346, 113 So.2d 140.

In cases tried by the court without the aid of a jury courts of appeals must review the facts upon appeal as in suits of an equitable nature; it is the court’s responsibility to make its own determination of the facts and where its examination of the evidence impels conclusion that the lower court’s findings are clearly wrong, court will not hesitate to make findings contrary to them. However, the judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Section 510.310(4) RSMo 1959, V.A.M.S.; Fischman v. Kiphart, Mo.App., 297 S.W.2d 784, 786(1); Logan-Moore Lumber Company v. Maddi, Mo.App., 325 S.W.2d 72, 73(1, 2).

We find from the evidence that Warden, the insured owner of the Mercedes Benz, delivered said automobile to respondent Abchal as general sales manager of Spooner Motor Company for the purpose of sale. This agreement was entered into between Warden and respondent Abchal, as such sales manager. Abchal did not testify at the trial nor was his deposition admitted in evidence, so the testimony of Warden, who was the only person who could give express permission to use said automobile, stands uncontradicted and unimpeach-ed. We find that respondent Abchal had express permission to have possession of said automobile for sole purposes of sale. We find that respondent Abchal, Jr., has never previously used any automobile or the Mercedes Benz of Warden with his permission. There is nothing in the dealings or association between Warden and respondent Abchal, Jr., that would justify implying that respondent Abchal, Jr., had permission to use the Mercedes Benz for his own personal use or social purposes for a period of several weeks while Warden was on vacation, because Warden testified he had never authorized respondent Abchal to use any of his automobiles prior to time he delivered the Mercedes Benz to him for sale and there was no contact between Warden and respondent Abchal, Jr., between that time and until after the accident as Warden was in the Bahamas on vacation.

The fact that respondent Abchal, Jr., attempted to finance the purchase of said automobile through Spooner would corroborate Warden’s statement that the car was delivered for sale. And whether or not respondent Abchal, Jr., advised Spooner that Warden had delivered the said automobile to him, as general sales manager of Spooner Motors, for sale would not discredit Warden’s testimony 'that such was the fact. Warden understood that respondent Abchal, Jr., was sales manager of Spooner Motors and he delivered his automobile on that basis for sale. Spooner was not present at the time of the arrangements and knew nothing of the terms of the delivery of the car. Spooner’s testimony of later developments cannot support respondent’s contention.

Respondents attempted to show that, in the course of operation of Spooner Motor Company, if salesmen were permitted to use cars left for sale for their personal use, that Warden would not have objected to such use. Such evidence has no relevancy or probative value. Warden testified he knew of no such policy at the time he delivered his automobile to respondent Abchal for sale. Spooner testified that his cpmpany had no such policy. If such policy existed and Warden found out about it between the date of delivery of the car to respondent Abchal, Jr., and the date of trial of this case, such fact cannot affect the rights of the parties herein. Warden is not a party to this litigation. The rights and liabilities of appellant, Hanover Insurance Company, under its policy were definitely fixed by the facts existing at the time of the accident. What Warden discovered about Spooner Motor Company’s policy after that date or what he would have done if he had known certain facts cannot be the basis of a waiver or estoppel so far as appellant is concerned. As is said in Bekaert v. State Farm Mutual Automobile Insurance Company, 8 Cir., 230 F.2d 127, l. c. 130:

“[4] Nor, of course, if the trial court could properly find that permission, express or implied, in relation to the use being made of the car at the time of the accident, had not been sufficiently established as an existing fact, would the named insured’s statement or testimony after the accident, that he would have been willing at the time to have given his consent, if it had been requested, be capable of filling the contractural void against the insurer, from the lack of existence of such permission at the time of the accident. Johnson v. State Farm Mutual Automobile Ins. Co., 8 Cir., 194 F.2d 785, 787.”

And after the accident, whether Warden filed a claim against the appellant, his insurance carrier, and did not file a claim against Spooner Motor Company, cannot affect the appellant’s rights. If there was no coverage at the time of the accident because respondent Abchal did not have express or implied permission to use Warden’s car, then Warden could not create coverage by his actions after the accident. As is said by this Court in McKee v. Travelers Insurance Company, Mo.App., 315 S.W.2d 852, l. c. 858:

“[5] But even if the respondent had undertaken Strickland’s defense with knowledge that he was operating the truck without permission at the time of the accident, appellants would not thereby become entitled to relief against respondent. Appellants’ only citation in support of their contention is that of Fairbanks Canning Co. v. London Guaranty & Accident Co., 154 Mo.App. 327, 133 S.W. 664, which involved the insured named in a policy. Strickland was neither the named insured in this policy nor was he, as we have found, an additional insured within the terms of the omnibus clause since he was not using the truck with the permission of the named insured at the time the accident occurred. Hence Strickland’s liability was never covered by the policy, and neither waiver nor estoppel would operate to create, in effect, a non-existent policy. Mistele v. Ogle, Mo.Sup., 293 S.W.2d 330; Linenschmidt v. Continental Casualty Co., 356 Mo. 914, 204 S.W.2d 295. * * *»

See also C. H. Elle Construction Company, a Corporation et al., v. Western Casualty and Surety Co., a Corporation, 294 F.2d 459 (9th C.C.A.), where it is held that where employer’s driver had borrowed the truck upon the permission of the truck owner’s wife who had no position in truck owner’s business activities and who, without authority and without prior pattern of lending her husband’s equipment, gave the driver the keys to the vehicle, the truck was used without the owner’s permission, and that subsequent ratification of driver’s operation by the owner, by billing the driver’s employer for truck rental, did not render the owner’s insurer liable for injuries arising out of the operation of the truck while it was being used without permission.

An examination of the facts and record in the instant case impels us to reach the conclusion that the respondents have failed to prove that respondent Abchal, Jr., at the time of the accident in question, was operating the Warden automobile with the express or implied permission of the named insured, John E. Warden, and that the lower court’s findings are clearly wrong and that judgment is erroneous. The judgment should be reversed and the cause remanded with directions to the lower court to enter a declaratory judgment in favor of appellant as prayed for in its petition.

It is so ordered.

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