author: HOLMAN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Jerry Rodger BECK, Appellant.
    No. 49665.
    Supreme Court of Missouri, Division No. 1.
    June 4, 1963.
    Wm. J. Hill, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Commissioner.

Defendant, Jerry Rodger Beck, was . found guilty of forcible rape and his punishment fixed by the jury at five years’ imprisonment in the penitentiary. See Section SS9.260 RSMo 1959, V.A.M.S. He has appealed from the ensuing judgment.

The sole point briefed by defendant upon this appeal is that the evidence is insufficient to support the conviction and hence the trial court should have sustained his motion for a judgment of acquittal filed at the close of all the evidence. He specifically contends that there was no substantial evidence of actual or constructive force at the time of the act of intercourse and that the evidence discloses that prosecutrix did not make the utmost resistance of which she was capable as required by law.

As will hereinafter appear, it is conceded that the act of intercourse was accomplished without the use of actual physical force on the part of defendant (since his identity is not questioned here we will assume that defendant is the man involved in this occurrence) and that prosecutrix did not offer any substantial physical re-sistence. It is the theory of the State that the utmost resistance doctrine does not apply in this case because prosecutrix submitted to defendant’s demands because of fear which resulted from threats of great bodily harm to her and her baby.

The principal evidence relating to the issues presented upon this appeal is contained in the testimony of prosecutrix. She testified that at the time in question, April 12, 1962, she was 21 years of age, married, and the mother of two small children, one three years of age and the other four months; that she resided with her husband on East 152nd Street in Grandview, Missouri, in a housing development area where the houses were rather close together; that at 2 p. m. on April 12, defendant knocked at her door and asked the directions to Highway 71, and that she gave him the directions and he returned to his car; that a little later defendant again knocked on the door and asked to use the telephone; that she permitted him to enter her home and use the telephone which was located in the kitchen and then accompanied him to the front door; that she then stated to defendant that she was going to turn down the volume on the television set which was located near the door; that as she worked with the television set defendant approached her from behind; he “grabbed me around —around my busts, and he put a knife to my throat” and said, “Well, I have a better idea”; that she told defendant she wasn’t feeling good and had to sit down and defendant permitted her'to do so; that both of her children were then asleep in separate bedrooms; that after she sat down she asked defendant what he wanted, and he said, “You know what I want”; that she then attempted to dissuade him by offering to let him take their car or their money or anything in the house if he would get out and leave her alone, and he replied, “No, you know what I want”; that at that point her baby began to cry and defendant told, her to go get the baby, which she did; that she then told defendant the baby was hungry and she had to fix a bottle; that she laid the baby on the couch in the living room and defendant went with her to the kitchen while she started heating a bottle of milk; that she knew the baby was not hungry but she was stalling the defendant hoping that someone would come to the house or that she could get help; that when they returned to the living room defendant took hold of her right wrist and pulled her up from the divan and as he motioned toward the bedroom he said, “Come on, let’s go”; that she refused to go and defendant then pointed a knife at the baby and said, “You wouldn’t want anything to happen to her, would you”; that she was then in fear for the life of her child; that he again told her to go to the bedroom, and “I asked him if he would put the knife away, and he says, ‘Why do you want me to put the knife away ? ’ and I said, T don’t like knives, it scares me.’ And he says, ‘I’ll lay the knife on the television, but you go on in the bedroom.’ And I just stood there in front of him, and he motioned for me to go on around in front of him; and I did, and as I went by the television he laid the knife on it.” She stated that she was in fear at that time and had been in fear since he had first exhibited the knife. “Q. You were in fear from that moment until the time — or in fact all the time he was there, is that right? A. I was afraid from the time he pulled the knife until the time he left. Q. Were you in fear for anyone other than your own person? A. Yes, I actually believed that he would have killed all of us.”

The prosecutrix testified further that after they entered the bedroom defendant directed her to take off all her clothes, which she did. She then described what occurred in the bedroom in the following manner: “Q. Now you state that this man who entered your home forced you into the bedroom and forced you to disrobe, and you were sitting on the bed; what happened then, please? A. He told me to lay back on the bed. Q. And did you? A. Yes. Q. And then what happened, please? A. Well, he told me to scoot up, and not to look. Q. And what happened then? A. Well, he unzipped his pants and laid down. Q. And what did he do then, please? A. He told me to put it in. Q. And did you? A. Yes, I did. Q. And by that do you mean that you inserted his private parts into yours? A. Yes, sir. Q. And did he thereafter complete the act of intercourse with you? A. Yes. Q. And what did he do then? A. He got up, zipped his pants up, and he said, ‘That wasn’t so bad, was it?’ Q. And at the time this occurred were you still in fear? A. Yes, I was. Q. For anyone’s life but your own? A. Yes, my two children. Q. All right, what happened then, did he leave, or did you leave, or— A. I ran to the front door and held the door open and stood behind it, and he walked down the hall and he came to the front door and he turned around and he says, ‘Oh, fingerprints,’ and he went to the kitchen and I heard him wiping the fingerprints off of the phone. Q. And did he thereafter leave ? A. He came in and he said, as he got to the door, ‘Don't call the police’ he says, ‘or I’ll come back and kill you, because I know where you live.’ Q. What did you do then? A. When he went out the door I slammed the door and ran to the bathroom. Q. And did what? A. I tried to take a douche. Q. And then what did you do, please? A. I ran next door to the neighbor’s house. Q. And how were you dressed at that time? A. I had on pants. Q. Nothing else but — what type, toreador pants? A. Yes, toreador pants.”

Prosecutrix’ neighbor, Mrs. DuBois, testified that on the afternoon in question pros-ecutrix knocked on her door and she let her in; that she was wearing only a pair of toreador pants and that prosecutrix fell to the floor crying and screaming and told her that she had been raped; that she suggested that they call the police and prosecu-trix said, “No you can’t call the police because he said he would come back and kill the entire family.” Mrs. DuBois stated that she then called prosecutrix’ sister who came and took her to the office of her physician.

Dr. Doane testified that he examined prosecutrix in his office on the afternoon of April 12, 1962; that she was in shock and was hysterical, but that he was able to calm her to the extent that she could give a statement to the police while in his office; that he found live sperm in the vaginal tract; that prosecutrix was normally a very stable person.

Prosecutrix was able to give the police a detailed description of the person who had entered her home and also a description of his automobile which contained some very unusual markings. The police gave the description of the automobile to service station operators in the area and defendant was apprehended shortly after his automobile was observed by a filling station operator who reported the license number to the police. After his arrest he was positively identified by prosecutrix on a number of occasions and that identification is not questioned upon this appeal.

Defendant did not testify. He offered the testimony of Mrs. Ruby Walker and her stepson, Roy McKinney, who lived near the home in which he resided, which testimony tended to support a defense of alibi.

In determining the question as to the sufficiency of the evidence to sustain a conviction we view the evidence in the light most favorable to the State. State v. Smart, Mo.Sup., 328 S.W.2d 569. As we have indicated, it is the contention of the State that the utmost resistance doctrine, when considered in a physical sense, has no application in this case. It is apparent from the foregoing statement of the evidence that defendant used no substantial force in accomplishing his purpose and prosecutrix did not offer any physical resistance. If defendant is guilty of the crime of rape it must be on the theory that the submission of prosecutrix was reasonably induced by fear of injury to herself and her baby if she resisted defendant’s demands.

We have concluded that the evidence herein is sufficient to have reasonably supported a jury finding that prosecutrix submitted to defendant’s demands and followed his directions because of fear of great bodily harm to herself or her children in the event she had physically resisted his determination to have intercourse with her.

The applicable rule is stated in 44 Am. Jur., Rape, § 5, p. 904, as follows: “The term ‘by force’ does not necessarily imply the positive exertion of actual physical force in the act of compelling submission of the female to the sexual connection; but force or violence threatened as the result of noncompliance, and for the purpose of preventing resistance, or extorting consent, if it is such as to create a real apprehension of dangerous consequences, or great bodily harm, or such as in any manner to overpower the mind of the victim so that she dare not resist, is, and upon all sound principles must be, regarded, for this purpose, as in all respects equivalent to force actually exerted for the same purpose. Nor need the threats be of force to be used in accomplishing the act. In fact, it would seem that the requirement in reference to force is satisfied by any sexual intercourse to which the woman may have been induced to yield, only through the constraint produced by the fear of great bodily harm or danger to life and limb, which the defendant, for the purpose of overcoming her will, caused her to apprehend, as the consequence of her refusal, and without which she would not have yielded.”

This court stated long ago that “the ‘utmost resistance’ doctrine does not apply where the woman is put in fear of personal violence, and her will thus overcome * * *. ‘A consent induced by fear of personal violence is not consent; and though a man lay no hands on a woman, yet if, by an array of physical force, he so overpowers her mind that she does not resist, he is guilty of rape by having unlawful intercourse.’ Bish.Crim.Law, (7th Ed.) § 1125.” State v. Dusenberry, 112 Mo. 277, 20 S.W. 461, 466. Other cases tending to support our decision herein are State v. Schuster, Mo.Sup., 282 S.W.2d 553; State v. Wynn, Mo.Sup., 357 S.W.2d 936; State v. Moore, Mo.Sup., 143 S.W.2d 288; and State v. Catron, 317 Mo. 894, 296 S.W. 141.

The main contention made in defendant’s brief is that, at the request of prosecutrix, defendant left his knife in the living room and therefore, after prosecutrix entered the bedroom, no constructive force was being exerted by defendant and prose-trix was then under a duty to make the utmost physical resistance to prevent penetration. We do not agree. Defendant had shown a determined purpose to have intercourse with prosecutrix. His conduct and statements would reasonably instill in prosecutrix the belief that if she resisted he would use his knife in inflicting great bodily harm to her or the baby, or both. The fact he did not have the knife with him in the bedroom would not have prevented such conduct. Had prosecutrix resisted him defendant could have returned to the living room in a few seconds and obtained his knife. He could then have used (or threatened to use) the weapon upon the baby or upon prosecutrix. Her submission to defendant’s directions in removing all of her clothing and in actively cooperating with him in effecting a penetration was substantial evidence tending to demonstrate that she was motivated by an intense fear throughout the time she was in the bedroom. Certainly it may not be said as a matter of law that prosecutrix wilfully consented to expose herself and to so completely cooperate in the sexual act with this intruder in her home whom she had never seen before and who had, by inference, threatened her life and that of her child. Under all the facts and circumstances it was for the jury to determine whether or not she submitted to defendant’s demand for intercourse as a result of fear or whether she had consented by voluntarily yielding her will to the commission of the act. We therefore rule that the court did not err in overruling the motion for a judgment of acquittal.

Most of the cases cited by defendant involve factual situations where no threats were made and in which the doctrine of utmost physical resistance was properly applied. See, for example, State v. Remley, Mo.Sup., 237 S.W. 489, State v. Perkins, 11 Mo.App. 82, and Champagne v. Hamey, 189 Mo. 709, 88 S.W. 92. Cases of that type have no application to the factual situation here involved.

An examination of the record as required by S. C. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Ingolf H. E. OTTO, Appellant, v. The KANSAS CITY STAR COMPANY, a Corporation, Respondent.
    No. 49478.
    Supreme Court of Missouri, Division No. 1.
    June 4, 1963.

      Elwyn L. Cady, Jr., Kansas City, for appellant.
    Douglas Stripp, Clayton R. Smalley, Kansas City, for respondent, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
   HOUSER, Commissioner.

The circuit court dismissed plaintiff’s petition for libel against The Kansas City Star Company on the ground that it failed to state a claim upon which relief may be granted. Plaintiff has appealed.

Plaintiff’s notice of appeal was filed two days before the expiration of the ninety day period provided for in Sup.Ct. Rule 82.05, V.A.M.R. Defendant has filed a motion to dismiss the appeal on the ground that it is premature, citing Tucker v. Miller, 363 Mo. 820, 253 S.W.2d 821. After that case was decided Sup.Ct. Rule 82.05 was amended by adding paragraph (b), which provides that “In any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the time the judgment becomes final for the purpose of appeal.” The amendment controls this case and the motion is overruled.

Defendant has filed a motion to dismiss the appeal for insufficiency of plaintiff’s jurisdictional statement. Plaintiff omitted the factual data required by Sup.Ct. Rule 83.05, contenting himself with a bare recital that jurisdiction is vested in this court “for the reason that the amount in dispute exceeds $15,000, to wit, $400,000,” but it is obvious that we have jurisdiction and we are not willing in this case to dismiss the appeal on account of this omission. Tarantola v. Johnny Hemphill, Inc., Mo.App., 324 S.W. 2d 379.

The first point on appeal raises the question whether the petition, now here reproduced in full, states a claim upon which relief may be granted:

“Plaintiff for his cause of action states as follows:

“1. That defendant is a duly organized corporation, the Owner and Publisher of a newspaper, THE KANSAS CITY STAR.
“2. That in said newspaper, on January 6, 1960, said defendant published an article about plaintiff in which he was defamed.
“3. In particular, the following portions of the article are libelous:
“ ‘CHIDED FOR SONS’ TRIP (headline)
“ ‘MAN IS REPRIMANDED BY JUDGE
“ T. H. E. OTTO, a Divorce Case Principal, Took Boys to England Without Permission.
* * * In November, Judge Stubbs denied a divorce to Mrs. Carlyle M. Otto, 7317 Wyoming Street, but left the children in her custody.’
(body of article, paragraph 2)
“4. As a result of the publication of said false and malicious statements, plaintiff has been held up to the community as worthy of hatred and contempt, and he has been humiliated and harmed in his personal and business life in the community.
“WHEREFORE, plaintiff prays for judgment against defendant in the amount of One Hundred Thousand Dollars ($100,-000) compensatory damages, and Three Hundred Thousand Dollars ($300,000) exemplary damages, and costs.”

Plaintiff contends that the petition sets forth “a good cause of action for libel,” by which we take it that he contends that the published words constitute libel per se, since he pleads no innuendo, no inducement, and no special damages. Langworthy v. Pulitzer Publishing Co., Mo.Sup., 368 S.W. 2d 385.

Plaintiff argues that the tenor of the portions of the article quoted in the petition is that “plaintiff is a bad man” ; that it implies that plaintiff’s action (taking the boys to England without permission) was “opprobrious” ; that the statement that the judge left the children in the wife’s custody shows that plaintiff “had violated a judicial pronouncement” ; that the natural tendency of this language is to bring plaintiff into dishonor, render him infamous, harm his reputation, lower him in the estimation of the community, reflect on his integrity, character, good name and standing in the community, and expose him to public hatred, contempt, or disgrace.

Plaintiff did not set forth the entire article in the petition. In determining the reasonable meaning of the words actually alleged to be libelous the court must construe the article as a whole, Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, 52; Hylsky v. Globe Democrat Pub. Co., 348 Mo. 83, 88 [1], 152 S.W.2d 119, 121 [1, 2], “[sjince one part of a publication may explain another part, and since the intent and the meaning must be gathered not only from the words singled out as libelous but from the context, ⅜ * * all parts of the publication must be read together to collect the true meaning.” Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A.,N.S., 216, quoted with approval in Lorenz v. Towntalk Pub. Co., Mo.Sup., 261 S.W.2d 952, 954.

Here is the entire article, which was introduced in evidence at the pre-trial hearing:

“CHIDED FOR SONS’ TRIP
“MAN IS REPRIMANDED BY JUDGE
“I. H. E. Otto, a Divorce Case Principal, Took Boys to England Without Permission
“Ingolf H. E. Otto, who is opposing a divorce suit filed by his wife in 1957, yesterday was reprimanded by Judge Tom J. Stubbs of the Jackson County Circuit Court for taking his two sons to England without permission of the court.
“In November, Judge Stubbs denied a divorce to Mrs. Carlyle M. Otto, 7317 Wyoming Street, but left the children in her custody. The court yesterday granted a new hearing at 1:30 o’clock Friday on the divorce.
“ ‘I’ve concluded that I will not take any punitive action,’ Judge Stubbs told Otto, an insurance executive, ‘although it was a foolish thing for you to do.’
“Otto, who said that he intends to return to England after the hearing, denied that he was attempting to take the children out of the jurisdiction of the court.
“Pointing out that the children had been returned and that he himself had returned for the hearing, Otto said that after the ruling of the court he thought he was permitted to take the children out of the country.
“Otto said that he had telephoned his sons, George V. E. Otto, 13, and Richard A. F. Otto, 12, and they had agreed to go with him. He said that he sent them plane fare.
“The Ottos were married April 3, 1943, in Cincinnati, and separated September 1, 1957.”

Section 559.410, RSMo 1959, V.A.M.S., provides: “A libel is the malicious defamation of a person made public by any printing, * * * tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, * *

The published writing must itself amount to a defamation in a libelous sense. “Defamation includes the idea of calumny, aspersion by lying; the injury of another’s reputation in that way. To defame is to speak evil of one maliciously, to dishonor, to render infamous.” Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6, 11; Coots v. Payton, supra.

In our judgment the published words quoted are not libelous per se and may not be so considered upon any reasonable construction of them. « They are not defamatory on their face. They cannot be reasonably understood in any defamatory sense, or to say what plaintiff reads into them. They do not say that plaintiff violated a court order prohibiting him from taking the boys to England, or that he knowingly disregarded a court judgment, or that he is a wrongdoer, or that what he did was disgraceful. Interpreting the article from its four corners, Williams v. Kansas City Transit, Inc., Mo.Sup., 339 S.W.2d 792, and giving to the article its ordinary meaning in the plain and popular sense, Jacobs v. Transcontinental & Western Air, Inc., 358 Mo. 674, 216 S.W.2d 523, it would clearly appear to any person of ordinary understanding that plaintiff thought he was permitted to take the children out of the country; that the boys had agreed to go with him; that plaintiff was disposed to conform to the court’s requirements, as indicated by the recited fact that he had returned both himself and the children from England for the hearing, and that the chiding or reprimand was based upon the judge’s view that plaintiff did a “foolish” thing. These additional elements, omitted from the petition, completely negative any idea of forcible abduction, or intentional flouting of the court’s order, and indicate only that what plaintiff did was foolish, rather than bad, opprobrious or illegal. If it be argued that to be called foolish by a judge in open court subjects one to ridicule, a complete answer is that “words do not constitute a ‘defamation’ solely because they subject one to ridicule.” Coots v. Payton, supra, 280 S.W.2d at p. 54 quoted in Lang-worthy, supra, at p. 497.

Does the petition come.within the rule that a petition based on published words not defamatory per se may state a claim upon which relief may be granted for libel per quod? No, because the petition “must allege extrinsic facts which show that although the words published were not libel per se they were in fact defamatory, and * * * in such situation special damages must be pleaded” in order to state a claim upon which relief may be granted for libel per quod. Langworthy v. The Pulitzer Publishing Co., supra, 368 S.W.2d, 1. c. 385. Plaintiff, as indicated, alleged no innuendo, inducement, or special damages, and therefore did not state a case of libel per quod.

The petition not having stated a claim upon which relief may be granted, either per se or per quod, the court did not err in dismissing plaintiff’s petition.

The second question is whether the court should have granted plaintiff’s oral request, made at the time of the ruling, or his subsequently filed written motion, for leave to amend the original petition.

Where the original petition states no claim whatever upon which relief may be granted, it does not toll the running of the statute of limitations, and an amendment made after the bar of the statute will not relate back, but will be considered as the beginning of a new action, in reckoning the statutory period of limitations. Reed v. Jackson, 346 Mo. 720, 142 S.W.2d 862, 865 ; 54 C.J.S. Limitations of Actions § 279 b., p. 321. The statute of limitations requires actions for libel to be commenced within two years. § 516.140, RSMo 1959, V.A.M.S. The original petition, filed January 7, 1960, did not state a cause of action for libel per se, and for lack of allegations of innuendo, inducement and special damages, did not state a cause of action for libel per quod. More than two years later, on January 16, 1962, plaintiff moved for leave to file an amended petition. Under the circumstances such an amendment would not relate back to January 7, I960; on January 16, 1962 the statute had run, and any new claim filed would have been barred. There was no error in refusing to permit the amendment.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . No issue is raised on this appeal with respect to the defense of privilege, which was pleaded in the answer. Accordingly, we express no opinion on that subject, and confine ourselves to the two issues actually raised.


author: BRADY, Commissioner.

text:
    Bessie MARTIN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Appellant.
    No. 31288.
    St. Louis Court of Appeals. Missouri.
    May 21, 1963.

      Don R. Williams, L. F. Stephens, St. Louis, for appellant.
    Murphy & Roche, Byron A. Roche, St. Louis, for respondent.
   BRADY, Commissioner.

This appeal results from a judgment for $5,000.00, entered after jury trial, in an action for personal injuries. The allegations of prejudicial error deal with the verdict-directing instruction only and the factual situation stated herein will be limited to that issue. The parties will be referred to by their designation in the trial court.

The plaintiff had been shopping and came out of the store and entered a taxicab parked at the curb on the east side of Seventh Street, a one-way street in the City of St. Louis running in a generally northwardly and southwardly direction. Plaintiff seated herself in the back seat at the curb side and her daughter took her seat at the other side of the back seat with plaintiff’s grandson standing between the front and back seats. After the taxicab driver had opened the rear door so they could take their seats, he closed it and opened the front door on the curb side but because of the weight of the passengers or the height of the curb the door wouldn’t open far enough to get the shopping bags handed him by the plaintiff and her daughter into the taxicab. He then closed that door and went to the front door on the street side of the taxicab, opened it, and placed the shopping bags on the front seat. When he did so, one of the bags fell over and emptied onto the floor of the taxicab. With his feet on the street and the taxicab door “somewhat opened,” the taxicab driver leaned across the front seat to reach the contents of the bag on the floor. When she first entered the taxicab the plaintiff had looked over her left shoulder and saw a motorbus stopped in the traffic behind the taxicab. The plaintiff asked her daughter to lock the door on the daughter’s side and, as she asked her to do so, plaintiff glanced up and to the back, saw the motorbus and saw it “wasn’t straight.” She felt a sudden jolt and the taxicab “ * * * came up and went down, I guess you’d call it tipped” and it felt as if it was going to turn over. The taxicab driver “ * * * raised up and asked what happened * * Plaintiff’s daughter actually saw the defendant’s mo-torbus passing the taxicab as she was locking the door and she stated “ * * * he was going in toward the curb.” She also testified she saw the rear end of the motor-bus strike the partially open taxicab door. She heard no sound or signal from the mo-torbus before the accident. The taxicab door was open at least far enough for the driver to have his legs inside it, but she did not know how far it was open.

The defendant’s driver, insofar as his testimony is available to plaintiff to aid her case, testified that the entire block on Seventh Street is a motorbus stop; that he was in the same lane (next to the east curb) as the taxicab as he approached and then pulled westwardly into the next lane; and that it was his intention to pull into the curb in front of the taxicab. He testified that he saw that the edge of the taxicab door was “Approximately a foot and a half, two feet” out from the side of the taxicab. He heard a noise at the rear of the motorbus and found a dent behind the dual rear wheels on the right-hand side of the motor-bus about four or five feet from the rear of the motorbus. He found the left front door edge of the taxicab bent forward from the bottom of the door window downward. He had no recollection of sounding a signal.

The taxicab driver’s testimony need not be extensively dealt with here. His testimony adds nothing new to the pertinent factual situation.

We are not to be understood as in any way approving of the form of Instruction No. 1, but a clear understanding of the issues require that the submission portion thereof be set forth. It is in the disjunctive and in the following form:

“ * * * and if you further find that the operator of said motorbus, in failing to sound a signal or warning of the close proximity of said motorbus to said taxicab, if so, or in so turning said bus to the right while the right side of said bus was west of the left side of said taxicab, if so, failed to exercise the highest degree of care in the operation of said motorbus and was negligent, and that such negligence, if any, caused or contributed to cause the collision between the said motorbus and said taxicab and caused or contributed to cause plaintiff to sustain bodily injuries * *

The defendant contends that the trial court prejudicially erred in giving Instruction No. 1 and assigns as reasons therefor: “(A) There was no substantial evidence to support a finding that failure to give a warning could have been the cause of the occurrence”; “(B) The instruction permitted a finding of negligence without requiring a finding that such alleged negligence was the direct cause of the alleged injury”; and “(C) The jury was permitted to find * * * that the negligence of the defendant caused or contributed to cause the injury. Under the theory and the evidence upon which plaintiff submitted her case, the negligence of the defendant could only have been the sole cause of the occurrence. It was improper to permit the jury to find that such alleged negligence was a concurrent cause. It presented a false issue, was inconsistent and therefore was confusing and misleading.”

It has been held many times that the issue of proximate cause is ordinarily a jury question, Hill v. Torrey, Mo.App., 320 S.W.2d 594, 1. c. 596, provided there is evidence from which the jury could reasonably infer that a warning could have resulted in the accident being avoided. “ * * * The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequences of the act or omission of the defendant. * * * ” Floyd v. St. Louis Public Service Company, Mo., 280 S.W.2d 74 at [8-10] p. 78.

It has been held that the purpose of a warning signal is to give notice of the approach of a vehicle and that, as stated in Steigleder v. Lonsdale, Mo.App., 253 S.W. 487 at [2] p. 489, “ * * * where the injured party has sufficient and timely notice of the approach of a car or a vehicle, the failure to give notice by sounding a gong or ringing a bell cannot be the proximate cause of the injury. (Citing cases.)” However, even where one sees the automobile and thus has notice of its approach, the failure to give a warning can be the proximate cause unless (Steigleder v. Lonsdale, supra, 253 S.W. at [3] p. 490) he has all the notice that the warning would have given him. In that case, proximate cause was held a jury question even where the automobile was seen approaching because “ * * * if a signal had been given further to the east to attract the attention of plaintiff and Moresi, and to advise them that the truck was coming at a dangerous rate of speed, they could have governed themselves accordingly.” Thus in McKinney v. Bissel, Mo.App., 263 S.W. 533 at [5] p. 535, it was held:

“ * * * But, if the view which she had of the approaching car did not afford her timely notice of its approach, or if the sounding of a signal would have given her the additional information that the car was near at hand and coming at a rapid rate of speed, then it was a question for the jury as to whether or not such failure to warn was the cause of plaintiff’s injury. * * *”

In Berryman v. People’s Motorbus Co. of St. Louis, 228 Mo.App. 1032, 54 S.W.2d 747, plaintiff had disembarked from a street car and was standing in the street awaiting an opportunity to cross. His testimony was that as he was standing there a motorbus approached and that, as the front of the motorbus .reached the plaintiff, it swerved to the west or into the curb. As it did so, the plaintiff was struck by the side of the motorbus. The plaintiff submitted on failure to warn as in the instant case and the defendant, on appeal, raised the same contention presented in the instant case; i. e., that failure to warn could not have been the proximate cause. The court found for the plaintiff on this issue, stating:

“ * * * jn this situation the jury might have found that, had the driver of the bus sounded a timely warning before he changed the direction of the bus, plaintiff being thus warned, could have avoided being struck. Banks v. Morris, 302 Mo. 254, loe. cit. 266, 257 S.W. 482.”

Certiorari proceedings were brought, State ex rel. St. Louis Public Service Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141, and the holding of this court was affirmed.

In the instant case as in the Berry-man case, the issue was as to a causal connection. The essential factual situation is the same. In the Berryman case, it was held that a factual situation existed whereby the jury could find a causal connection between failure to warn and the collision and injuries. We hold here that where the motorbus driver, while at least 100 feet or slightly over 14 seconds away (traveling at 5 miles per hour, the speed most favorable to the plaintiff), saw the taxicab with its door opened and extending two feet out from the side of the taxicab and the driver of the taxicab in the position described in the evidence, and then having the intent to swerve out from the same lane as the taxicab was in passing the taxicab and then turning back into the curb ahead of it, a factual situation was created whereby the jury might reasonably have found a causal connection between failure to warn the taxicab driver and the collision and the resultant injury to the plaintiff. Several inferences were available to the jury, such as the plaintiff hearing and warning and in turn warning the taxicab driver to pull in his feet and shut the door, or the driver hearing the warning himself and doing so. The exact means whereby the accident would have been avoided need not be hypothesized. All that is necessary is that there be evidence from which the jury could reasonably infer that a warning could have resulted in the avoidance of the accident.. Hill v. Torrey, supra. It is true, of course, that the sounding of the horn would not warn that the motorbus driver intended to turn into the curb after passing the taxicab. However, that would seem generally true in warning cases and was so in Berryman v. People’s Motorbus Co. of St. Louis, supra. The sounding of a warning cannot tell one hearing it exactly what action is contemplated. In essence, all a warning can do is to announce that a dangerous condition is being created and to tell the one for whom the warning is intended to exercise even more caution than usual, or to immediately act in a manner that will extricate him from such a condition already created. The instruction requires a finding of a causal connection between the failure to warn and the collision and injuries. This was the final fact the jury was required to find; there being evidence to support such a finding, under the facts of this case and the defendant’s contentions, it need not have spelled out in the instruction just how the failure to warn could have resulted in avoidance of the accident and injuries.

In its second attack upon the instruction, it is the defendant’s contention (again using the language from its brief) that “ * * * plaintiff’s failure to require a finding of direct causation was prejudicially erroneous.” There was absolutely no issue raised at this trial nor contention advanced that plaintiff in any way contributed to cause the accident and her injuries. Under the factual situation here present, only the acts of the defendant and those of the taxicab driver could have been the cause of her injuries. Instruction No. 6, a concurring negligence instruction, was given to negate any contention by the defendant that even if found negligent it should not be held responsible if the taxicab driver was also negligent. This instruction used the word “directly” before the words “contributed to cause.”

Giambelluca v. Missouri Pac. R. Co., Mo., 320 S.W.2d 457, 1. c. 469, directly rules this point adversely to the defendant’s contentions. In the instant case, the evidence excluded any remote acts of negligence from the jury as did the wording of the instruction in the findings therein required of the jury; and while it would have been better form to do so, Giambelluca v. Missouri Pac. R. Co., supra, it was not prejudicial error to fail to use the words “proximately” or “directly” in the manner defendant urges.

The third attack upon the instruction presents the defendant’s contention (seemingly contrary to that advanced in its second attack) that, in the words of its brief, “ * * * Under the theory and the evidence upon which the plaintiff submitted her case, the negligence of the defendant could only have been the sole cause of the occurrence * * *” and the inclusion of the words in the instruction referring to a concurrent cause presented a false issue, was confusing and misleading to the jury, and was therefore prejudicially erroneous. There is no merit in this contention. This is not a situation where there was submitted two inconsistent theories of plaintiff’s case as in Pijut v. St. Louis Public Service Co., Mo., 330 S.W.2d 747. In that case, as the opinion states, on plaintiff’s own theory of the facts it was “difficult if not impossible” to conceive of any basis for the concurring negligence. This is not true in the instant case. Here the act of the taxicab driver in having the door open into an oncoming lane of traffic on a busy one-way street while he was unable to view any oncoming danger is an act which the jury could well have considered negligent. It was, therefore, necessary for the plaintiff to make clear to the jury that the acts of the taxicab driver, even if considered negligent, would not warrant a verdict in defendant’s favor if the jury also found the defendant’s driver to have been negligent. This purpose was probably accomplished by Instruction No. 6 and it might have been well not to have also covered the same ground in the verdict-directing instruction; or, if it was included in Instruction No. 1, it may well have been left out of Instruction No. 6. In any event, we cannot agree that covering the matter in both instructions, under the factual situation presented by this case, was reversible error.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

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


author: SAMUEL E. SEMPLE, Special Commissioner.

text:
    Dwight EDWARDS, Jr., a Minor, by Mrs. Dwight Edwards, His Next Friend, Plaintiff-Respondent, v. Richard RUDOWICZ, Defendant-Appellant.
    No. 31220.
    St. Louis Court of Appeals. Missouri.
    May 21, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 25, 1963.

      Derrick & Holderle, Tyree C. Derrick, St. Louis, for appellant.
    Barnhart & Sommers, Don B. Sommers, St. Louis, for respondent.
   SAMUEL E. SEMPLE, Special Commissioner.

This is a suit for damages wherein plaintiff Dwight Edwards, Jr., a minor, by next friend, sought to .recover for personal injuries received by plaintiff when struck by an automobile driven by defendant Richard Rudowicz. The-trial resulted in a verdict for plaintiff in the sum of $7,000. Defendant has duly appealed from the ensuing judgment.

On September 26, 1960, plaintiff, age three and one-half years, was visiting his aunt who lived at 1016 North Rock Hill Road, in the City of Rock Hill, St. Louis County. About 5 P.M. during a period when the traffic was heavy, plaintiff was observed standing near his mother’s car which was parked on the west side of Rock Hill Road across the street from the home of plaintiff’s aunt. The plaintiff started to run from the west to the east side of the road as defendant approached from the south traveling north. Defendant, seeing plaintiff, applied his brakes and slid his wheels but the right front of defendant’s car struck plaintiff knocking him forward and against the sidewalk on the east side of the street. The case was tried and submitted on the theory of excessive speed, to-wit: that defendant was operating his automobile at a speed in excess of a speed limit of 20 miles per hour.

The first point raised by defendant is that the portion of Instruction No. 1 defining the term “highest degree of care” given by the Court was erroneous. The portion of Instruction No. 1 of which defendant complains reads as follows:

“ ‘Highest degree of care’ as used in these instructions means the highest practicable degree of care which a very careful and prudent person would ordinarily use under the same or similar circumstances as shown in the evidence in this case.”

Defendant contends that the proper definition of the term highest degree of care as often declared by the courts of this state is that degree of care that a very careful and prudent person would ordinarily exercise under the same or similar circumstance. Defendant states that the instruction given here goes beyond the ordinary definition as set out by the courts and places a greater burden on the defendant. Defendant argues that the only proper definition of the phrase “highest degree of care” limits the duty of the operator of a motor vehicle to that degree of care that a very careful and prudent person would ordinarily exercise under the same or similar circumstance, and contends that Instruction No. 1 here goes beyond the limits of the definition by superimposing on that duty the extra duty of exercising the highest practicable degree of care that a very careful and prudent person would ordinarily exercise, etc. Defendant relies on the cases of Martin v. Turner, Mo.Sup., 306 S.W.2d 473, 478; Shepard v. Harris, Mo.Sup., 329 S.W.2d 1, 9, 10; and May v. Bradford, Mo.Sup., 348 S.W.2d 133, 135.

The case of Martin v. Turner, supra, held as prejudically erroneous the following instruction :

“ ‘The Court instructs the jury that any person operating an automobile * * * upon * * * a public * * highway * * * is required to use the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury or death to persons on * * * such * * * highways * * * and * * * the absence of such care constitutes negligence’, etc.”

The opinion stated that “ * * * The definition set forth in the instruction falls far short of the requirements of the statute and the instruction was therefore prejudi-cially erroneous. * * * ” The later case of Shepard v. Harris, supra, in considering the holding in the Martin case that the instruction therein did not properly define the phrase “highest degree of care,” made the following explanation of the ruling in that case. “ * * * The reason was that the instruction did not in fact define the ‘highest degree of care’ but confusingly stated that one ‘is required to use the highest degree of care that a very careful person would use,’ etc.” The case of May v. Bradford, supra, involved an instruction identical in substance with the instruction in the Martin case and the court followed the ruling in the Martin case in holding the instruction prejudically erroneous. These cases do not appear to be in point as the instructions ruled on there were not in fact definitions of the phrase “highest degree of care.”

In the instant case since defendant offered no definitive instruction of his own he is not in a favorable position to criticize Instruction No. 1 unless it constituted a positive misdirection. Vogelgesang v. Waelder, Mo.App., 238 S.W.2d 849, 857. An identical instruction to Instruction No. 1 was held not harmful to the defendant in the case of Allen v. Purvis, Mo.App., 30 S.W.2d 196, 202. In that case it was contended that the effect of the instruction was to superimpose one kind of highest practical care upon the kind of care used by a highly prudent person. The contention was denied by the court and it was held that the instruction was not erroneous. It is concluded that the giving of Instruction No. 1 does not constitute prejudicial error, however, a better and more recently approved definition of the phrase “highest degree of care” is stated in Woods v. Chinn, Mo.App., 224 S.W.2d 583, 587.

The next point raised by the defendant is that the trial court erred in permitting police officer Bell to testify (1) as to the average braking distance of an automobile traveling and (2) the speed defendant’s automobile was traveling as indicated by the length of the skid marks made by the vehicle. Defendant contends that officer Bell, who was not an eyewitness to the accident, was not properly qualified as an expert and was therefore not a competent witness to give testimony as to the stopping distance of an automobile traveling 30 miles per hour or to give his opinion as to the speed of defendant’s automobile based upon the length of skid marks made by defendant’s vehicle. Defendant argues that as plaintiff’s case was based upon speed in excess of the 20 mile an hour speed limit at the place of the casualty that admitting testimony of officer Bell as to stopping distances and speed was highly prejudicial and constituted reversible error.

In connection with the point raised here it should be noted that officer Bell was put on the stand as a witness for defendant and testified on direct examination that he had been a police officer for the City of Rock Hill for eight and one-half years. That he arrived at the scene of the accident within a short time after the occurrence. That he measured the skid marks made by all four wheels of defendant’s automobile and that each of the four wheels made a skid mark forty-nine and one-half feet long. On cross-examination Bell testified that it was necessary for him as a police officer with eight years experience to familiarize himself with braking distances of automobiles and that he knew the braking distance of an automobile going 30 miles per hour.

The following testimony on cross-examination was admitted for the consideration of the jury and forms the basis for defendant’s contention:

“Q (Mr. Sommers) Officer, at the place where this accident occurred the street has leveled off at that point, has it not?
“A There’s still a slight incline at that point.
“Q Was this dry asphalt?
“A It was dry as far as we know.
“Q Was it asphalt?
“A Yes, sir.
“Q Do you know what the stopping distance, the average stopping distance of an automobile going 30 miles per hour would be under those conditions, Officer?
“MR. DERRICK: I object, if the Court please. That’s not enough' information for a hypothetical question on which to base the answer.
“THE COURT: Overruled.
“Q (Mr. Sommers) You may answer.
“A Eorty-six feet is the average stopping distance at 30 miles per hour.
“Q (Mr. Sommers) You did measure 49½ feet of skid marks for the front wheels, did you not?
“A Yes, sir.
“Q And that indicates that it took this automobile, after the brakes were applied, 49½ feet to come to a stop; is that correct ?
“A In'my opinion, yes.
“Q That is three and a half feet more than the average distance for an automobile going 30 miles an hour?
“MR. DERRICK: I object to that, if the Court please. That is speculative.
“THE COURT: Overruled.
“Q (Mr. Sommers) Right, Officer?
“A Right.
“Q This automobile then was going in excess of the speed limit in this area, was it not, Officer?
“A In my estimation, yes.
“MR. DERRICK: I object to that and move it be stricken and the jury instructed to disregard it, if the Court please. It is the witness’ estimation.
“THE COURT: Overruled.”

The courts have held that “ * * * An expert witness is one who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of deducing correct conclusions. However, the expert’s opinion, which the jury may accept, must not be a mere guess — it must be based upon facts and adequate data. * * * ” Giambelluca v. Missouri Pacific R. R. Co., Mo., 320 S.W.2d 457, 463. The determination of the question of the qualification of a witness as an expert in the field in which his testimony is sought rests in the first instance in the sound discretion of the trial court and its decision in that respect should not be set aside in the absence of a showing of abuse of discretion. Yocum v. Kansas City Public Service Company, Mo., 349 S.W.2d 860, 864. “ * * * ‘It is also well established that the admission or exclusion of expert opinion testimony is a matter largely within the discretion of the trial court and the exercise of that discretion will not be interfered with unless it plainly appears that such has been abused.’ * * * ” Dillenschneider v. Campbell, Mo.App., 350 S.W.2d 260, 266.

In this case the evidence showed that defendant’s witness Bell had been a member of the police force for eight and one-half years. That in his business as a police officer it had become necessary for him to familiarize himself with the stopping distance of automobiles and that he knew the average stopping distance of an automobile traveling 30 miles per hour. The witness was not examined or tested by the defendant as to the source or extent of his special knowledge or experience. Defendant argues that the witness had no special knowledge of stopping distances as he said he didn’t know the stopping distance of a car traveling 25 miles per hour, however, his lack of knowledge as to braking distance of an automobile going 25 miles per hour may have affected the weight of his testimony but not his competency in view of the other facts developed by the testimony. Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120, 126. It might also be noted that this testimony regarding speed of the automobile was consistent with and substantially the same as the testimony of plaintiff’s witness Loretta Habermehl who was an eyewitness to the casualty. The witness’ qualifications were rather briefly stated, however, giving the trial court the right to exercise its sound discretion in respect to determining the competency of this witness, it is concluded that the qualifications of officer Bell as an expert were not so insufficiently stated as to result in an abuse of discretion by the trial court in admitting the testimony in question.

Defendant complains that there was no factual basis to support the conclusions and opinion of officer Bell and no attempt was made to hypothesize the condition of the terrain, the grade of the street or the condition of the tires on defendant’s automobile. This contention is without merit. Officer Bell was present at the scene shortly after the accident and personally observed the street and surroundings as well as defendant’s motor vehicle and the witness was specifically asked to consider the conditions existing there at the place of the accident. The witness’ answers fairly appeared to be based on his knowledge of the conditions existing at the scene. The trial court did not abuse its discretion in allowing this testimony to be presented to the jury.

It is recommended that the judgment for plaintiff entered by the trial court be affirmed.

PER CURIAM.

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

Accordingly, judgment of the trial court is affirmed.

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


author: J. P. MORGAN, Special Commissioner.

text:
    Joseph CARENZA, (Plaintiff) Appellant, v. VULCAN-CINCINNATI, INC., and Employers Liability Insurance Corp., (Defendants) Respondents.
    No. 31017.
    St. Louis Court of Appeals. Missouri.
    May 21, 1963.

      James J. Butler, and Hough, Herrmann, Nichols, Hormberg & Filippine, Clayton, for appellant.
    Robert W. Herr, and Luke, Cunliff & Wilson, St. Louis, for respondents.
   J. P. MORGAN, Special Commissioner.

This is an appeal by Joseph Carenza, employee, from a judgment of the Circuit Court of Pike County affirming for him a final award of the Industrial Commission in the amount of $5,600.00, based on a finding of 40% permanent partial disability to his body as a whole, or 160 weeks of compensation at $35.00 per week.

Appellant’s allegations of error listed in their logical sequence are: (1) The Industrial Commission, although requested to do so, failed to make specific findings of fact as to each injury to claimant’s wrist, arm, elbow, shoulder and back and failed to state, as requested, the related partial permanent disability attributed to each such individual injury; (2) The award of the Industrial Commission relating to permanent partial disability was insufficient and against the overwhelming weight of the evidence; and (3) The Industrial Commission failed to award plaintiff payment, or give him credit for a “healing period” of 20 weeks’ duration. The latter apparently creating a question of first impression.

From the agreed facts, it is found that on April 26, 1957, claimant was employed by Vulcan-Cincinnati, Inc. as a journeyman boilermaker in the City of Louisiana, Missouri. His immediate task was to cut the guard or railing on a tower so that damaged portions might be straightened and re-welded into position. In preparing to lower one portion to the ground, he stepped onto the roof of an adjoining building. When the roof gave way and caved in, he fell some 25 to 30 feet to the floor surface, which fortunately consisted of freshly poured concrete. Claimant testified he recalled hitting both arms in his efforts to break his fall. Dr. E. A. Cunningham was called and found claimant impaled upon the end of a two-by-four used for forms. It struck below the left scapula and passed upward beneath the scapula on the outside of the rib-cage. Upon arrival at the Pike County Hospital, Dr. Cunningham’s diagnosis was in brief as follows: “Fracture of the 4th rib, left, posteriorly, with probable fractures of 2nd and 3rd ribs; severe lacerations, under left scapula, extending upward beneath the scapula; severance of latissimus dorsi, longissimus dorsi muscles, lumbo dorsal fascia, and the external intercostal muscles; comminuted fracture, left scapula; dislocation, right humerus at the shoulder, reduced; fracture, comminuted, dislocation, left wrist, almost compound; severe contusion, left thigh; laceration, left thigh, and shock, moderate.” The dislocation of the humerus at the right shoulder was reduced, as well as the fractured dislocation of the left wrist with cast applied, and other lacerations were drained and closed by sutures.

On April 30, 1957, claimant was transferred to the Barnes Hospital in St. Louis under the care of Dr. H. R. McCarroll. His personal observation and review of x-rays revealed a fracture through the neck of the scapula, on the right, in which the position remained good; the dislocation of the right shoulder to be properly reduced and in good position; a comminuted fracture of the neck of the scapula, on the left, in which there was displacement of the multiple fragments; a comminuted fracture of the distal portion of the ulna and radius of the left forearm and wrist; no evidence of fracture in the dorsal and lumbar portions of the spine except fracture of one rib on left side. (Fractured elbow found later.)

On May 4, 1957, a displacement of the fracture of the distal end of the radius and ulna was realigned and a new cast applied. Sutures closing the laceration over the left side of the thorax were removed and the wound healed. He was discharged on May 11, 1957, but readmitted on September 17, 1957, when surgery was performed with reference to an area of irregularity in the left scapula requiring amputation of the distal one-third of the body of the scapula (two and one-half inches) to remove a clicking in the movement of the scapula over the thoracic cage. Out patient treatment continued until October 28, 1957, at which time claimant was released for some form of work. Claimant testified he was unable to perform his past duties and sought employment as a salesman of office equipment.

Dr. McCarroll re-examined claimant on February 24, 1958, and testified:

That he had shown gradual improvement and returned to work as a salesman; his complaints generally pertained to his left wrist, elbow and shoulder, with the greatest pain occurring when he turned to his left side in sleeping, as well as a pulling sensation in the upper chest when turning the steering wheel of his car; that a casual observance with his clothes on revealed no gross outward evidence of deformity. In standing erect the 'left shoulder was held slightly lower than the right; there was good musculature about both shoulders and shoulder girdle, but the musculature on the right is a little better developed than on the left; good function could be demonstrated in the trapezius muscle on each side; diffused tenderness of pressure about the right shoulder and over entire area of left scapula; some depression in the scar from the operation on the left scapula resulting from contraction of underlying soft tissues; tenderness over the left thoracic cage and mid-axillary line extending along this scar; on moving the scapula on each side actively over the thoracic cage, no marked crepitus could be felt, although a mild amount was felt at times on the left; he demonstrated good muscle power about the left shoulder, but the musculature of the left upper extremity was not quite as heavy as that on the right side; he is a right-handed individual which could account for some of that; some of it could be due to the difference in motion on the two sides. The examination of the left elbow revealed: flexion deformity of IS degrees from which point active flexion was possible to 145 degrees; rotations of the left forearm remained very good with slight limitation at the extreme of each of these motions; a very little crepitus was felt on these motions at the head of the radius at the level of the elbow; some tenderness about the entire left elbow joint and a little thickening over the posterior aspect with no joint effusion and no adjacent soft tisue edema; forcing the left forearm in pronation and supination passively caused complaint of pain. Examination of left wrist revealed: moderate amount of diffuse soft tissue thickening and a little bony fullness over dorsal surface of distal end of radius; flexing of left wrist same as right, with extension from straight line of 60 degrees as compared to 75 degrees of right wrist. In the left hand he had good motion of the digits and was able to close a complete fist with just a little bit of slight limitation as compared with the right. The motions of the back seemed to be normal and his chest expansion measured four inches.

The x-rays taken at this time were interpreted as showing: right shoulder revealed bone and joint structures to be normal except for a mild degree of irregularity at the inferior margin of the glenoid process and a mild degree of irregularity at the superior and outer margin of the head of the humerus; in the left shoulder there was no abnormality in relation to the shoulder joint itself; some irregularity in the left scapula and distal portion absent as result of surgical removal; lateral view of the left scapula showed a marked degree of irregularity throughout as a result of the old healed fractures with the fracture lines no longer visible; the left thoracic cage revealed satisfactory rib structures with no visible fracture; the left elbow had a moderate irregularity of the articular surface of the radial head where the original fracture had occurred and which was relatively displaced and the fracture appeared to be well healed; the left wrist had considerable irregularity as a result of the original com-minuted fracture which involved the distal portion of the radius; the general alignment remained good, but some of the healed fracture lines were visible; there was a marked degree of irregularity of the articular surface of the distal end of the radius along its inner surface with a moderate amount of bony debris opposite the distal end of the ulna, and some irregularity of the adjacent styloid process.

From this record, Dr. McCarroll testified that, in his opinion, the residual disability of claimant was approximately 10 per cent of the individual as a whole, plus an additional 5 per cent of the right upper extremity at the shoulder plus 25 per cent of the left upper extremity at the shoulder; the rating as to the left arm at the shoulder taking into consideration the disability at both the elbow and wrist.

The last examination approximately two years later was on January IS, 1960. The doctor said there was little change in his condition except some improvement noted in his left elbow, but some showing of arthritis in the wrist joint. At this examination claimant said he had twice dislocated his right shoulder since the last report. The doctor could not confirm this claim but stated that if this were true, the disability rating at the right shoulder perhaps should be 15% instead of 5%'. Claimant inquired as to the doctor’s opinion of disability at each level of the left arm, independent of any other injury, and brought out these opinions with each rated separately; 20% at wrist, 10% at elbow and 20% at shoulder.

Claimant was examined in October, 1958, by Dr. Joseph E. Flynn, and his deposition is in the record. However, there could be no advantage in extending this opinion by outlining his findings as they are substantially the same as those of Dr. Mc-Carroll already detailed, except for some variance in phraseology and estimates of disability, which Dr. Flynn placed at: 40% of the left upper extremity at shoulder; 20% at left elbow; 25% left wrist; 15% of right upper extremity at shoulder and 10% of body as whole. He further testified that prior to making these estimates of permanent partial disability that he had not been advised of previous injuries suffered by claimant.

By stipulation records of prior compensation claims of Mr. Carenza were admitted: (1) On October 16, 1953, while working for United Engineers and Constructors, Inc. in St. Louis County he “slipped while tightening a ratchet wrench and fell on his left arm,” and by compromise a lump sum settlement of $1484.00 was paid; (2) On December 14, 1956, while working for Kaiser Engineers in Cape Girardeau County his claim form stated, “while claimant was engaged in his regular duties he fell off scaffold causing or aggravating above described injuries (left leg and left arm)”, and by compromise a lump sum settlement of $1400.00 was paid. Their interest here being limited to the ratings given in that both, to some extent, involved claimant’s left arm, and the effect, if any, they might have had on Dr. Flynn’s ratings.

It was shown that claimant had been a well known soccer player and was an alternate on the 1952 United States Soccer Team. During 1958, the year after this accident, he tried to play in 4 to 6 games with established teams but had to quit, and as he testified, “ * * * I worked out with them a little bit and after I played a few games then I told them that that was it * * At the time of the hearing, claimant was donating his time about three nights a week in coaching soccer at Washington University in St. Louis. He stated his participation in the workouts was limited, but in coaching had demonstrated such skills as how to pass a ball by kicking with the inside of the foot. He was unable to continue his work as a boilermaker and was presently engaged in selling office equipment and supplies. He did not think there had been much improvement in his condition, and that his pains were persistent, especially when trying to do anything requiring him to reach above his head.

From this medical record, the final award of the Industrial Commission was made. Its factual findings included all twenty-three items printed on its accepted forms (Final Award with attached Findings of Fact). In view of stipulations, the only finding in question is item 12: “Parts of body injured by accident: Left upper extremity, both shoulders, back, left thigh and body as a whole,” plus the following additional findings:

“The Commission finds from the evidence that on April 26, 1957, employee herein sustained an accidental injury arising out of and in the course of his employment with employer herein which resulted in injury to his arms, shoulders, back, legs and body as a whole.
“We further find that the employee was temporarily and totally disabled for 28% weeks, for which compensation has been paid to the employee by the employer and insurer at the agreed compensation rate of $35.00 per week for a total of $1,010.00. Employee is not entitled to any healing period.
“We further find that as a result of the accidental injury aforesaid (and disregarding any prior disability the employee may have had), the employee has sustained permanent partial disability amounting to 40 per cent of the body as a whole, which entitled him to receive from the employer and insurer compensation for 160 weeks at $35.00 per week or $5,600.00, subject to a credit for $1,010.00 previously paid as aforesaid, or $4,590.00 additional.”

Claimant contends that the Commission erred in not setting out specific findings of fact relative to each injury and resultant per cent of disability attributed to every individual injury, i. e., left wrist, left elbow, back and shoulders, prior to its ultimate finding that the employee sustained permanent partial disability amounting to 40 per cent of the body as a whole. This complaint and further request that this court determine and set out each of such specific findings is dependent upon a determination as to whether or not the findings of the Commission were inadequate in the first instance. However, it should first be noted that he did not file any motion or request with the Commission asking that its findings be amplified. Collins v. Reed-Harlin Grocery Co., Mo.App., 230 S.W.2d 880 and cases therein cited. Although not thought sufficient, since claimant did in the argumentative portion of his Application for Review of the Referee’s Award make a similar complaint, this point will be determined as if the Commission refused or ignored a proper request for additional findings.

In Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601, at page 604, the court while discussing the statutory requirement as to findings of facts, stated: “This provision evidently contemplates that the facts to be found and embodied in a statement shall be the ultimate constitutive facts upon which the award can be predicated as a conclusion of law. From such statement facts which are merely evi-dentiary in character should, therefore, be excluded.” Again in the more recent case of Groce v. Pyle, Mo.App., 315 S.W.2d 482, 1. c. 490, the court stated:

“Findings of fact are required by Sections 287.460 and 287.490 RS Mo. 1949, V.A.M.S. One of the questions on appeal, as provided by Section 287.490, is whether the facts found by the Commission support the award. The findings of fact should be sufficient to show how the controlling issues have been decided. Otherwise, the reviewing court will be unable to know what the Commission has really determined in order that it may know what to review, and whether or not correct rules of law have been applied to facts which could properly be found on the particular record. (Citing cases) * * The Commission is not required to state the evidentiary facts upon which its ultimate findings may depend.”

In the instant case, all factual questions were stipulated except as to the extent of the injury. From the Commission’s findings already set out, it is shown that this question was determined as the basis for the award. It is sufficient for any court on review to decide whether or not the finding was supported by substantial evidence. To require that the finding as to extent of disability in any case involving multiple injuries be detailed as to each portion of each extremity, as well as those bodily injuries not scheduled by statute, would be unduly burdensome and would constitute a recitation of evidentiary facts.

Claimant quotes at length from the opinion of this court in Ludwig v. Columbia Brewing Co., Mo.App. 225 S.W.2d 489, as requiring a finding of extent of disability as to each specific injury. That case involved injuries to one extremity — the left arm, and evidence of a 50% disability at the elbow and 30% at the shoulder. The court found it to be an injury calling for a scheduled amount of compensation and states, “Both injuries mentioned therefore should have been considered as partial permanent disability to the arm and the extent to which the arm was disabled should have been stated.” The court there did not require a finding of disability as to each specific portion of the arm, nor is it necessary in a case of multiple injury to several different areas of the body as in the instant case. Claimant’s contention here is identical with that made in Dauster v. Star Mfg. Co., Mo.App., 145 S.W.2d 499, 501 decided by this court. The employee had suffered an injury to each leg and the Commission made an award based on a finding of disability to the man as a whole. A portion of appellant’s brief was quoted and contained the following:

“In its findings, however, the Commission failed to decide how much disability the claimant sustained in each leg, and only found that he lost 75 per cent of his ability to work and function as a normal man. It is appellant’s contention that such a finding is necessary to support any award in this case. * * * Since the Commission made no finding as to the separate loss of use of each leg, there is no conclusive finding on this important issue.”

Such a requirement was not made, as may also be seen in the later cases of Chapman v. Raftery, Mo.App., 174 S.W.2d 352 and Teel v. F. Burkhart Mfg. Co., Mo.App., 271 S.W.2d 259. The findings in the instant case are sufficient for all required purposes.

Claimant next contends that the award was insufficient and against the overwhelming weight of the evidence, the argument on this point being limited to the suggestion that the final award will appear grossly inadequate if each specific injury shown is considered. This contention is apparently based on a portion of his argument on Point I wherein claimant stated, “ * * * the cross-examination was addressed toward a pointed inquiry concerning the breakdown of plaintiff’s rated disability, according to Dr. McCarroll, of the left extremity in an effort to clearly demonstrate that this disability rating should have been the result of not the overall minimum disability of the extremity as a whole, but the sum total of the individual and particular disabilities of its component parts." This argument ignores the testimony of claimant’s treating doctor who testified:

“Q. Now with reference to this disability for the left upper extremity of the left shoulder * * *, did that take into account not only the actual findings at the level of the shoulder, but also the findings at the elbow and at the wrist on the left side in arriving at a total disability for the entire member of 25% ?
“A. That is correct. I gave it on the extremity as a whole taking them all into consideration.”

The fallacy of this approach is evident if one were to assume an injury with any per cent of disability greater than 60% at both the wrist and elbow, and by using the allowances set out in Section 287.190, it would be found that the sum of the two would exceed the allowance for the severance of the entire arm at the shoulder. The scheduled ratings are not to be so applied. Ludwig v. Columbia Brewing Co., supra, and cases therein cited. As stated in Darghe v. Blackburn Const. Co., Mo.App., 53 S.W.2d 1088, 1. c. 1090, “The compensation to be allowed was for a disability resulting from several distinct injuries, and therefore the award was properly based upon the scheduled compensation for the greater injury, that is, the injury to the hand as a whole, rather than for the injuries to the component parts.” The employer has set out in its brief an extended application of the ratings of disability given to the statutory allowances which need not be detailed as any mathematical approach shows the award to be in a range between the ratings of Dr. McCarroll and Dr. Flynn. In any event, the Commission was not bound conclusively by the percentage estimate of the doctors, Barron v. Mississippi Lime Co. of Mo., Mo.App., 285 S.W. 2d 46, and properly could have considered the activities of the claimant subsequent to the injury. The award was supported by competent and substantial evidence, and was not against the overwhelming weight of the evidence.

Claimant’s last contention is that the commission failed to award him payment or give him credit for a healing period of 20 weeks’ duration. The question, oddly enough, is one of both first and last impressions, in that the legislative amendments to Section 287.190, subsequent to the date of this injury, clarify the issue involved. It is not necessary to set out the entire section as the parties agree that on the date of this accident, April 26, 1957, that part allowing a healing period provided: “In addition to the compensation provided in the schedule of losses, the employer shall pay to the employee for a healing period * * * ”, and that this sentence has now been amended to read: “In addition to the compensation in this section provided for all permanent partial disabilities, whether scheduled or unscheduled, the employer shall pay to the employee for a healing period * * Under this status of the law, claimant very forcefully contends that he did suffer scheduled injuries to both upper extremities and qualified for the healing period allowance. That the particular injuries were sustained is evident both from the medical testimony and their apparent consideration by the Commission, in that it found a 40% disability to the body as a whole with the medical evidence estimating the unscheduled injuries at 10% of the body. The problem is obvious, and any solution must start from the premise that compensation due is dependent on a proper determination by the commission as to the extent of injury. This is a case of multiple injuries to several areas of the body, and could not have been anticipated with accuracy in a statutory schedule of losses nor computed without the commission’s ultimate finding as to injury. By necessity, as well as the law established in the case of Dauster v. Star Mfg. Co., supra, the commission had to resolve the question as to extent of injury from the “catchall” provision now in paragraph 3 of Section 287.190, i. e., body as a whole limited to 400 weeks. That many injuries must often be confined in one award, has caused it to be stated, “ * * * an injury is not specific within the meaning of a schedule unless such injury relates solely to the injured member, * * 71 Corpus Juris, page 838, Section 551, 99 C.J.S. Workmen’s Compensation § 310, page 1119. The case of IComosa v. Monsanto Chemical Company, Mo., 317 S.W.2d 396 is helpful. The injury there came under the catchall provisions of the statute, and the employee under Section 287.160 sought interest on compensation payment installments from the maturity date of each. The court held that due to the type injury involved, no automatic computation could have been ascertained, and that interest began as of the date of the award; its significance here emphasizing that all compensation does in fact depend on the ultimate findings of the Commission.

The multiplicity of injury in the instant case required the Commission to determine the extent of injury based on the body as a whole. In doing this it was limited to the allowances provided for unscheduled injuries on the date of this accident. With no statutory provision for a healing period provided, the claim for it was properly denied. Although of no benefit to this claimant, it is fortunate that this inequity has been corrected.

For the reasons stated, your commissioner recommends that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by MORGAN, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the trial court is affirmed.

ANDERSON, P. J., WOLFE, J., and GEORGE P. ADAMS, Special Judge, concur.

RUDDY, J., not participating.


text:
    George SMITH, Employee, Plaintiff-Respondent, v. AMERICAN CAR & FOUNDRY DIVISION, A. C. F. INDUSTRIES, INCORPORATED, Employer, Self-Insurer, Defendant-Appellant.
    No. 31321.
    St. Louis Court of Appeals. Missouri.
    May 21, 1963.

      Gentry, Bryant & Sheppard, Arnot L. Sheppard, St. Louis, for appellant.
    Robert E. Ballman, and Oliver R. Farrell, St. Louis, for respondent.
   BRADY, Commissioner.

In this proceeding brought under the Workmen’s Compensation Law of this state, the referee found “ * * * that the employee did not sustain an accident on December 8, 1959, arising out of and in the course of his employment * * *•” On appeal, the Industrial Commission found that the employee did sustain an accident and awarded “10 per cent permanent partial disability of the body as a whole referable to low back strain” at the rate of $38.00 per week for 40 weeks. The Circuit Court of the City of St. Louis entered its judgment affirming the Industrial Commission and the defendant, hereinafter referred to as the employer, has perfected this appeal contending that there was a failure of substantial proof of the happening of an “accident” (as that term is used in a proceeding of this nature) and that the employee, hereinafter referred to as the claimant, failed to produce substantial evidence of a proximate causal connection between the accident alleged and his injury. Our statement of facts will, therefore, be confined to those issues and will be further restricted by the limits of our review in appeals of this nature wherein we are to ascertain if, upon the whole record, the Industrial Commission could have reasonably made its findings and reached its result considering the evidence in the light most favorable to the claimant. Forshey v. Universal Atlas Cement Company, Mo.App., 337 S.W.2d 544.

The claimant’s testimony was that on Tuesday, December 8, 1959, he was working alone, operating a jackhammer which was about two and one-half feet long and weighed ninety pounds or more; that he was engaged in breaking a concrete and steel floor; that he had previously been working in a place where the floor was solid and when he started at this particular spot he did not know the floor was hollow; that he was trying to break out an area about three and one-half feet square; that the jackhammer broke through the floor into this hollow area and “ * * * jerked me down on my left knee and hurt my left knee and hurt the left side of my back”; that the hollow area was about four feet deep; that the floor at this particular place was “about six inches” thick; that the whole hammer, not just the chisel end, went down into the pit but he did not, as the hole he had made was only big enough for the hammer; that on arising he felt a pain in the left side of his back and toward the top of his left knee; that this pain was severe; that prior to this occurrence, he had never had any trouble or pain or difficulty with his back; that after he arose and moved the jackhammer, his foreman came over to him in response to claimant’s call to him; that he told the foreman “ * * * this jackhammer broke through in the concrete and jerked me down on my knee and what was hurting, my knee and left side of my back”; that he asked permission to go to the dispensary and was told to go there; that he walked over there without assistance and saw the nurse; that there was no one else present; that the nurse put a bandage around his leg and gave him some liniment and some white tablets and told him to come back to see the doctor Thursday; that he was in the dispensary about fifteen minutes and then returned to work where he swept up with a broom until lunch time; that after lunch “ * * * I worked in the same area just picking up around there; wasn’t much I could do”; that he left work at 4:30 and went home still experiencing pain in his back, left knee and left hip; that he put liniment and hot towels on these areas that night, rubbed with the liniment and took the tablets given him; that he returned to work for one more day which was either the day after this occurrence or the next day, and on that day he did light clean-up work in the foreman’s office; and that he reported to the dispensary on Thursday and saw the doctor. The remainder of the claimant’s testimony is taken up with the testimony as to his treatment, hospital time, type of work he did after this occurrence, and other matters not here pertinent. The medical records were introduced showing his admission to the hospital and Dr. Kee-noy’s final diagnosis as “low back strain acute.”

To show a causal connection, claimant called Dr. Stephens who testified that he found “ * * * an acute lumbosacral angle, with flat, or horizontal, sacrum”; that while the sacrum is ordinarily pitched at 45 degrees, the claimant’s was pitched at “practically 90 degrees” which creates a “shearing” force resulting in an “inadequate low back”; and that this was a congenital condition. The claimant’s counsel then propounded a long hypothetical question to Dr. Stephens (there is no contention raised herein as to the inclusion or exclusion of any of the elements of that question) and ended it by asking, “ * * * Assuming that all of the facts I told you are true, could there be a causal relationship ?” This question was objected to on the grounds that the condition the doctor found had not yet been stated. Counsel then developed the doctor’s finding of “a low back chronic strain” and that in the doctor’s opinion the congenital condition he found in claimant’s back left the back “prone to trauma” and the doctor stated that “ * ⅜ it is reasonable, in the realm of reason-ability, that trauma could affect such a back.” Counsel then reviewed his hypothetical question, again asking “* * " * could the condition you found, be caused by the hyperthetical (sic) situation I gave? A. In my opinion it could, yes.” Upon cross-examination, the doctor testified •afe follows: “Q. You testified, doctor, that this man had — he has, what I believe you said was a congenitally weak back, is that right? A. Yes, sir. Q. All of the condition, doctor, you found on your examination, could exist with or without traumer (sic), couldn’t they? A. Yes, sir. Q. And you said this man could have trouble with his back even though he had no trau-mer (sic) of any kind? A. That’s right.” He was then asked the following question by the referee and gave the answer shown : “REFEREE TAFF: In other words, doctor, he can have pain with a condition like this whether he has trauma or not, and whether he has any muscle spasms would determine whether he had pain or not?. WITNESS: Yes.”

The term “accident,” as used in the Workmen’s Compensation Law of this state, is defined in Section 287.020, RSMo 1959, V.A.M.S., as follows:

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

Employer first contends that there was no “accident” as there was no unexpected or unforeseen event happening suddenly and violently. The claimant’s testimony illus-strates the lack of merit in this contention: “Q Now, did anything unusual occur on December 8, 1959, around eleven a. m. in the morning? A Yes, sir. Q All right; tell me what that was ? A I was operating this jack hammer (sic) breaking concrete and steel, and this was a solid floor where I had been breaking and after I moved up to another place the floor was hollow; I didn’t know it was hollow and it broke through, it broke through into a pit and jerked me down on my left knee and hurt my left knee and hurt the left side of my back.” There can be no doubt that the sudden breaking through the concrete was unexpected as it took place where the claimant did not know the floor to be hollow and when, combined with the violent jerking of the claimant to his knee, this constitutes an “accident” as that term is defined in Section 287.020, supra.

The employer then contends that this record fails to prove that there were any objective symptoms of an injury produced at the time. Of course, “at the time” is a phrase that must be given a reasonable constitution and, as used in the Compensation Act, this phrase does not mean that the event need reach its consummation immediately, but does mean as soon as the effects of the happening were manifest without any independent intervening cause being shown to be responsible for the condition. Schroeder v. Western Union Telegraph Co., Mo.App., 129 S.W.2d 917. Dr. Stephens testified that “A spasm is an involuntary contraction of muscle” and that it is an obj ective finding. When Dr. Keen-oy examined the claimant on December 10, he testified that “ * * * examination revealed spasms of the muscles on the left side of the lower back with tenderness over the sacro-iliac (sic) area * * * There was measured limitation of motion of the back in all directions.” This witness also testified that on December 17 he found * ⅜ * Severe back pain with muscle spasms and tenderness over the left lumbar area. In addition this time he had considerable abdominal distention and it developed he had an acute urinary extense” and that upon discharge “ * * * he still had muscle spasms * * There is no attempt to show the presence of any independent intervening cause and on October 31, 1960, Dr. Stephens testified he found the “Motion of his back is limited * * * a little atrophy of the muscle of the left side.” In view of this testimony, the employer’s contention (quoting from its brief) “There is no evidence whatever in this record tending to establish a single objective symptom discoverable by either Dr. Keenoy or Dr. Stephens” is without merit.

The employer next contends that the claimant’s testimony is so contradictory as to destroy its substantiality. Its citations of contradictory testimony are that claimant testified he told his foreman, Thier-heimer, how he had been hurt and that the foreman denied this and gave testimony directly contradictory to that of claimant as to what claimant told him concerning the accident. This does not support the employer’s allegation. The employer also cites as « * * * so contradictory as to destroy its substantiality” claimant’s testimony that he told the nurse at the dispensary he had been injured and how it happened. The employer then states (in its brief), “She denied this” and proceeds to repeat her testimony. This does not constitute a contradiction by claimant of his own testimony. Another of the employer’s citations of contradictory testimony is that he gave a statement to the witness McGrath which contradicts his testimony at the hearing as to how the accident happened. There is no doubt of the admissibility of such evidence to impeach the plaintiff, but such statements do not destroy the prima facie probative effect of the contrary testimony of the plaintiff given at the hearing. Miller v. Multiplex Faucet Co., Mo., 315 S.W.2d 224, 1. c. 227.

The employer’s other citation as to the testimony by claimant “* * * so contradictory as to destroy its substantiality” is based upon three bits of his testimony. It contends that the claimant testified that he had just started work and the hole was “very small” and yet, as the brief states “ * * * and on tliis same page he said that the entire hammer went down into the pit.” The transcript discloses no inconsistency that “ * * * he gave this testimony despite the fact that the concrete through which he was drilling was twenty inches thick (Tr. 8). But on cross-examination he testified that it was sixteen inches thick (1 r. 63), and further that it was only eight or ten inches thick (Tr. 64) ; and that he had drilled through about two or three inches of it (Tr. 64).” Again these “inconsistencies” if they are such, are not borne out by the transcript which discloses (with reference to the thickness of the concrete) that claimant’s testimony was “The concrete was twenty inches thick what I had been breaking before I moved to another position” and this other position referred to was where he had the accident. While it is not as clearly stated, a careful reading of the claimant’s cross-examination discloses that his testimony as to sixteen inches also refers to the place he was working before he moved to the scene of this accident. In fact, when asked on cross-examination if the concrete was twenty inches deep, he answered that it was eight to ten inches deep. It would serve no useful purpose to go further into the transcript’s refutation of the employer’s allegations of inconsistencies. Most of those allegations are without foundation in the transcript and the one or two that are certainly do not rise to the importance ascribed them by employer of testimony “ * * * so contradictory as to destroy its substan-tiality.” There is no merit to the first allegation of error.

The employer’s last point is that claimant’s evidence failed to establish a proximate causal connection. With commendable candor, claimant’s counsel admits in his brief that “ * * * the question should have asked the doctor whether in his opinion the accident ‘did’ cause the medical disability.” However, claimant’s theory is that the line of cases in this state holding that a hypothetical question which asks whether a certain accident “could” cause a certain injury supplies insufficient evidence of causation is applicable only to cases involving accidents which are claimed to have caused unusual injuries and in cases where the claimant suffers only an “ordinary type injury” as claimant urges he did in this case, his testimony alone is sufficient to establish causation. He urges that expert testimony as to the diagnosis or medical finding, when coupled with lay testimony as to the cause, is sufficient to infer causation and contends that in such .cases a hypothetical question using the word “could” is sufficient to substantiate causation. The employer urges that the cases where the testimony of the claimant alone or where that testimony is coupled with a “might” or “could” opinion from a medical expert is held sufficient to show a causal connection are cases where the injury is open and obvious or where the injury was such that it would naturally flow from the accident, such as a fracture after a fall, cut or burn cases or other similar injuries.

It requires no citation of authority to call to mind the principle that the burden of proof in a workmen’s compensation claim rests upon the claimant. It is equally well settled that burden is not carried when the claimant shows that the injury complained of resulted either from one or the other of two causes when the employer could be liable only if one were found to be the cause. Groce v. Pyle, Mo. App., 315 S.W.2d 482 [3], In the instant case, we are confronted with a situation where the claimant’s own medical expert in effect testified that the injury he found could have been caused by the accident or could have existed without any trauma. It follows that, standing alone, even if we were to accept a “could” answer as definite evidence of a causal connection, the testimony of claimant’s medical expert would not substantiate the findings of the Industrial Commission. Groce v. Pyle, supra. We are, therefore, to decide if claimant, either by his own testimony standing alone or by that testimony coupled with the undisputed medical finding of the “low back sprain” and a “could” answer, can establish a causal connection.

We cannot agree with the employer that the rule is to allow a causal connection to be shown by the claimant’s own testimony or by a coupling of the claimant’s testimony with a “could” answer of a medical expert only in the type of cases involving what might be called visible injuries. In Walker v. Pickwick Hotel, Mo. App., 211 S.W.2d 55, the medical findings were as to internal injury to claimant’s knee. The claimant had testified that he had slipped and his knee “popped” and hurt. The court held that “The testimony of claimant, if believed, constituted substantial‘evidence of the nature, cause, and extent of his disability * * (211 S. W.2d 55, 1. c. 58, emphasis supplied.) In Schroeder v. Western Union Telegraph Co., Mo.App., 129 S.W.2d 917, the medical expert answered the hypothetical question as to causal connection in this fashion: “Well, that accident could have been a precipitating factor in the development of it.” This court held:

“* * * The medical testimony to the effect that such a blow to the claimant’s head, sustained in the manner shown herein, could be the precipitating cause, the predisposing factor, and, as Dr. Moore further said, ‘the exciting cause’ of his condition, coupled with the circumstances shown in evidence that the claimant was not afflicted with any such condition prior to the time he met with the accident, but was sane and able to hold a job as a messenger boy for several months and up to the time of his injury, constitute a sufficient basis to warrant the reasonable inference drawn by the Commission that claimant’s present condition of insanity arose out of and in the course of his employment and resulted from the accident of being knocked from his bicycle in the manner shown in the evidence.”

On consideration of the motion for rehearing, the court distinguished Kimmie v. Terminal R. R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, on the grounds, as stated by the court:

“ * * * It will thus be seen that in the Kimmie case there was not only no evidence to show that the fall caused the cancerous condition and tumor, but that, on the contrary, the evidence showed that three months after the fall there was no cancerous condition or tumor, and that no such condition was shown until more than a year thereafter.”

The court distinguished Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, as follows:

“ * * * The only evidence on behalf of plaintiff therein that the injury caused or aggravated his heart condition was the contradictory testimony of a single witness, which the court held was not sufficient to warrant the submission of the question to the jury in the absence of an explanation to show which of the two contradictory versions was true.”

In Stephens v. Spuck Iron & Foundry Co., 358 Mo. 372, 214 S.W.2d 534, 1. c. 539, the deceased had tripped and fallen, breaking his left hip although the cause of death was pulmonary embolism. It is apparent from a reading of the opinion at 214 S.W. 2d 534, 1. c. 540, that the medical testimony did not reach that degree of certainty for which the employer here contends. Yet the deceased widow, claimant, was held to have proved that the injury sustained in the fall was “ * * * the cause or was a contributing cause to the formation of the embolism. * * * ”

In Morrow v. Orscheln Bros. Truck Lines, 235 Mo.App. 1166, 151 S.W.2d 138, the injury complained of was to the eye and the question presented was whether the condition of the eye was caused by a diseased nerve condition as employer contended, or by dust and grit as claimant asserted. The medical expert offered by the claimant answered the hypothetical question put to him with a “could” answer and further stated that the condition he found probably resulted from the injury since he found no other cause. The court held this was sufficient when combined with the claimant’s evidence that prior to the injury the eye was in good condition and that, immediately upon the happening of the accident, claimant felt a burning sensation with eye irritation and that he then sought medical attention. The court, under these circumstances, held that the medical expert’s failure to state with more certainty the causal relationship between the accident and the eye condition did not deprive all the testimony on the subject of causation of the character of substantial evidence stating that Kimmie and similar cases did not rule otherwise.

Under the factual situation presented by this case, a workmen’s compensation proceeding, the claimant’s own testimony that when the jackhammer went through and he was pulled down to the floor he hurt the left side of his back, that he felt pain in his back immediately upon arising, that he had never experienced back trouble before and evidence that his doctor diagnosed his complaint as “low back strain,” constituted evidence from which the Industrial Commission might reasonably find or infer a causal connection between the accident and his injury. We cannot say that the failure of his medical expert to testify with a greater degree of certainty deprived all of this evidence of its character as substantial evidence from which the Industrial Commission could reasonably have reached its conclusion. Morrow v. Orscheln Bros. Truck Lines, supra. The point is ruled adversely to the employer.

The judgment of the circuit court affirming the award of the Industrial Commission should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

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